1. This is a reference by the learned Sessions Judge of Bakarganj under Section 307, Criminal P.C., against the verdict of the jury in a case in which four persons were charged with offences under Sections 467 and 471, I.P.C. One of these persons Milanjan Bibi was acquitted by the Judge in agreement with the unanimous verdict of the jury. The verdict of the jury as regards the remaining three accused was by a majority of 3 : 2 that they were not guilty of the offences charged. The learned Sessions Judge finding himself unable to agree with the verdict has referred the case to this Court. In para. 3 of his letter of reference he says that he is of opinion that the verdict both as regards the fact of forgery and the verdict as regards Raham Ali are not, as he expresses it, in accordance with the evidence. I should like to point out at the outset that this appears to indicate some misconception of his duty on the part of the learned Sessions Judge. It is not contemplated that a Sessions Judge, who does not happen to agree with the verdict of a jury, should necessarily make a reference to this Court, especially where pure questions of fact are involved, which are matters for the decision of the jury and the jury alone. The ground upon which this reference really seems to rest is that the learned Sessions Judge came to a conclusion on the evidence which was different from that arrived at by the jury. But that as I have already said cannot furnish any justification for a reference under Section 307 unless there is something to show that the verdict of the jury was manifestly wrong and definitely contrary to the weight of the evidence.
2. The learned Sessions Judge in his letter while inviting us to discard the evidence of certain witnesses on the ground that they cannot be relied upon has expressed the opinion that the case has been satisfactorily proved by the evidence of three witnesses. In para. 5 of his letter he says that:
In my opinion the evidence of those three witnesses is sufficient to prove satisfactorily that the deed in question in this case is a forgery.
3. Now the three witnesses in question are P. W. 8, who is a stamp vendor named Munshi Mobarak Ali, P. W. 2 Taher Ali Howladar and P. W. 1, a hand-writing expert named Henry Bennett.
4. It is necessary to examine briefly the evidence of these witnesses in order to see how far they substantiate the view which has been taken by the learned Judge. The stamp vendor merely proved that he sold a piece of stamp paper to one Ismail Meah on behalf of the deceased Aminuddin Howladar on 10th Magh 1334 B.S. (24th January 1928). This in itself has little or no evidentiary value. Then as to witness 2 for the prosecution the statement of this witness is that he saw accused 2 at the Registration office writing a document and that he was asked to be an attesting witness which he refused. No doubt this witness claims to identify the document but it does not seem very probable that he would be able to do so on such a cursory view of it, or that he would be able to identify it with any certainty. The learned Sessions Judge moreover in his charge while dealing with this witness has himself criticized his evidence. Ha says that there are minor discrepancies as to date and time between the evidence of this witness and the evidence of P. W. 3. He also refers to the fact that the complaint does not contain any allegation that witness 2 for the prosecution saw the deed written. In any view of the matter the question whether this witness was to be believed or not was a question for the jury. The witness was before them and they had an opportunity to see his demeanour and no doubt formed their own opinion as to his truthfulness.
5. As regards witness 3, the handwriting expert, so far as he is concerned the value of his evidence is entirely dependent upon accepting it as proved that the sale-deed Ex. 1 is a genuine document. The evidence of this witness proceeds upon the footing that if the first document is genuine then the second document the deed of gift is undoubtedly false and a forgery. But it so happens that the proof of the first document, the sale-deed, is dependent upon the evidence of P. W. 3 Osimaddi, and Osimaddi is one of the batch of witnesses whom the learned Judge has himself considered to be unreliable. The proof of the sale-deed is dependent on the evidence of Osimaddi, and it is a suspicious circumstance in connexion with that document that the attesting witnesses have not been produced and that no attempt has been made to prove the payment of consideration.
6. Having regard to the nature therefore of this evidence and to all the facts and circumstances we find ourselves unable to accept this reference and we think that the jury were justified in finding by a majority that the guilt of the accused had not been established and in bringing in a verdict of not guilty.
7. We accordingly reject this reference and acquit the accused. The accused will be set at liberty, and if they are on bail they will be discharged from their bail bonds.
8. I agree.