1. It is difficult to comprehend the exact import of the order which the learned Sessions Judge has passed in this case. His summing up was perfectly fair one, and as far as one can say from a perusal of the heads of charge recorded by him, he seems to have summed up for an acquittal of the two appellants.
2. The jury brought in a unanimous verdict of guilty under Section 302, Indian Penal Code in respect of Madhumala and under Section 328, Indian Penal Code in respect of Saroda Charan Mistri.
3. The learned Judge states in his order that had he been trying the ease alone he should have been inclined to give the appellants the benefit of the doubt on the question as to whether the appellants knew that the drug they administered was poison but as the jury seemed to have unhesitatingly rejected the case for the defence on this point, he thought that he was not justified in pressing 'the slight doubts' that remained in his mind, to the extent of referring the case to this Court under Section 307, Criminal Procedure Code. This observation of the learned Judge may be taken to indicate that his disagreement with the jury was not such a complete dissent as to lead him to consider it necessary for the ends of justice to submit the case to this Court under the provisions of the said section. To this extent, perhaps, and if there was nothing else, his refusal to refer the case may be justified.
4. The learned Judge, however, goes on to observe in his order that the differentiation of the cases of the two accused by the jury did not appear to him to be justified and he states further thus, ' If the accused are at all guilty, then they are both certainly guilty of murder.' In his charge too he had given his ruling that if the two accused knew they were administering aconite they were guilty of murder and the charge under Section 328 was unnecessary. After this clear and definite expression of opinion on his part both to the jury and in his judgment his duty under the law was to make a reference. The duties of a Judge in this respect are clearly laid down in the section itself. That section lays down that on certain conditions existing viz., there being a disagreement between the Judge and the jury, and the Judge being clearly of opinion that it is necessary for the ends of justice to submit the case, he shall submit the case accordingly. No doubt it is ordinarily, a matter entirely with the discretion of the Judge as to whether he should make a reference or not. This discretion however, as observed in the case of Queen-Empress v. Guruvadu (1890) 13 Mad. 343 ' should always be exercised when the Judge thinks that the verdict is not supported by the evidence; it is the only way in which a miscarriage of justice by a perverse verdict of a jury, which is of frequent occurrence, can be remedied by the High Court.' It is no longer the law that before making a reference the Judge must be satisfied that the verdict is perverse, it is sufficient that he should be clearly of opinion that a reference is necessary for the ends of justice: Ismail Sarkar v. King-Emperor (1918) 23 C.W.N. 747. The doubts entertained by the learned Judge on the question of knowledge coupled with his definite conviction that the case was one of murder, if of any offence at all, made it obligatory for him to make a reference; his dissent from the verdict as to the character of the offence, of which the accused were guilty, was a clear, full and complete dissent nor can it be doubted for a moment that the ends of justice demanded a reference, which would have enabled this Court to deal with the facts and determine whether the appellants were really guilty and if so, of what offence.
5. The learned Judge has refrained from making a reference for reasons to which I shall presently refer. Although the offence if any of Saroda Charan Mistry is in the opinion of the Judge nothing less than murder he thought that the said appellant could be adequately punished under Section 328, Indian Penal Code and he sentenced him to undergo rigorous imprisonment for 5 years. This is somewhat incomprehensible. As regards Madhumala the learned Judge passed upon her, as he says, with the greatest reluctance, the only alternative sentence which the law permits and he recommends that the District Magistrate should move the authorities for reduction of her sentence. He says that he is confident that this is a case in which the prerogative of mercy will be exercised. He states that he feels that there was certainly no case for punishing the girl more severely than her brother.
6. It is clear then that the learned Judge felt, that the verdict of the jury was wrong, and that if he accepted the verdict in its entirety he was unable to do justice to the accused. It follows therefore that the ends of justice demanded a reference to this Court. The conditions necessary for the applications of Section 307, Criminal Procedure Code being clearly present the duty of the learned Judge was to make such a reference, and once the conditions are present that course is obligatory and is no longer a matter of discretion at all; it should be remembered that the word used is ' shall.' If under circumstances such as those that are in this case the learned Judge fails to do what the law requires him to do and thus deprives this Court of an opportunity to deal with the case on its merits, he does something more than merely acting in the erroneous exercise of his discretion. He fails to exercise his jurisdiction and this failure operates to the prejudice either of the Crown or of the accused, and speaking for myself, I am of opinion that it is well within our power under Section 439, Criminal Procedure Code to direct him to submit the case to us for our consideration under Section 307, Criminal Procedure Code.
7. It is however not necessary in the present case to exercise those powers. The verdict of the jury is illogical, absurd and incomprehensible and I entirely agree with the learned Judge that no differentiation can possibly be made between the cases as against the two accused and that the offence committed by them is either murder or nothing at all. The verdict brought in by the jury is only explicable on the supposition that there was a misunderstanding on the part of the jury of the law as laid down by the learned Judge. As I have already stated there is no misdirection in the learned Judge's charge to the jury to which this erroneous verdict can be attributed.
8. I have perused the record with some degree of care and I have no hesitation in saying that I share in the doubts which the learned Judge entertained as to the guilt of the appellants. It will not serve any useful purpose to recapitulate the points upon which my doubts are founded, for they are set out in the learned Judge's charge with sufficient particularity and precision, I agree with him in holding that it has not been proved to my satisfaction that the appellants are guilty of any offence. I accordingly allow the appeal and order that the appellants be acquitted and discharged.
9. I agree that the appeal by these two prisoners must be allowed and that the Judge should have made a reference for two reasons-(i) that the jury refused to accept his ruling that the evidence revealed a case under Section 302 or nothing and so the findings 'against the male accused under Section 328 only were not justified by the evidence and (ii) that though there were circumstances which shew that the two accused knew they were administering a drug surreptitiously in the deceased's food and there is evidence that they were on bad terms with him, there is practically no evidence that they knew that the drug given to them to use would cause hurt much less death.