1. This is a reference which has been made to us by the Sessions Judge of Tipperah against the acquittal of certain accused persons who were put on their trial before him and a jury for the crime of dacoity with murder. The jury, it may be noted, found two of the co-accused with these persons, who are the subject of this reference, guilty and they were duly sentenced. The reference is made under Section 307 of the Code of Criminal Procedure, a useful section no doubt, if prudently applied. But in this particular case, we do not think that the learned Sessions Judge was at all justified in objecting to these three acquittals. If persons are put on their trial before juries, it seems to me that on questions of fact the decisions of the jury should always be accepted, unless it is possible to demonstrate that the acquittals have been arrived at perversely. I fail to appreciate why in this particular case, the jury were not perfectly justified in refusing to accept the identification of the three people they acquitted and I may say in passing that I am unsympathetic to this type of reference and I shall go on being so unsympathetic unless it is shown to me un-mistakably that the jury failed to do their duty in considering the evidence brought before them properly. The Advocate for the Crown in this case, when we had intimated to him rather unkindly perhaps that we were not regarding the reference very favourably, after putting various points before us with great propriety did not press them further. In these circumstances, the reference is not accepted.
2. The accused, who are not on bail, must be set at liberty immediately.
3. I agree. So far as I have been able to gather, it was not disputed that a dacoity took place and the only question which the jury had to decide, was whether they were satisfied that the various accused persons had been properly identified. The dacoity took place at night and I should have thought that it was pre eminently a matter for the jury to decide whether in such circumstances, the prosecution have been able to establish their case.
4. Possibly, if a jury convicted one accused and then acquitted another, against whom the evidence was exactly the same, it might be said that the verdict must be perverse. But such considerations do not apply to the present case. The verdict was not unanimous and three of the jurors were not prepared to accept evidence against any of the accused. Nor would it be enough to say that such a majority verdict ought to be reversed, unless it could be established that the verdict of acquittal was perverse rather than the verdict of conviction.
5. Of the five persons who were placed upon their trial, Lal Mia and Akbarali were found guilty. They were implicated by P.W. No. 4 Rajani who failed to identify any of the other accused persons. Rajani was asleep in one of the huts and his evidence is that two of the dacoits broke into his particular hut and he identified those two persons as Lal Mia and Akbarali. He further said that Akbarali beat him with a lathi. Now, if the jury were satisfied with this evidence, they were perfectly justified in convicting these two accused persons on this deposition alone, whatever view they might have taken of the evidence of the other witnesses. There is, therefore, nothing in this case to suggest that the majority verdict of acquittal was either perverse or unreasonable.