P L D 1957 Dacca 377 (PLP)

RAHMAN, J.‑

This is a Reference under section 307 of the Criminal P. C. in respect of three accused persons by the learned Additional Sessions Judge, 2nd Court, Dacca, These accused persons were tried by a Jury consisting of nine special Jurors on a charge under section 302, read with section 34 of the P. P. C. The Jury which was divided in the proportion of six to three found the accused persons not guilty by its majority verdict. The facts and circumstances giving rise to this pro secution have been exhaustively set out by the learned Additional Sessions Judge both in his charge to the Jury and in the letter of Reference to this Court. Briefly stated it appears that on the 7th November 1954, at about Magrib prayer time the deceased Kasem Ali Pradhan of village tiaturapara took Muhammad Ali, a carpenter, to the house of one Abdus Sobhan with a view to settle the terms for repairing the latter's house, but as Sobhan's father was not at home, the terms could not be settled. The deceased then took Muhammad Ali to the house of accused Shahadullah for settling the costs of making two windows for the latter. Thereafter whilst the deceased and the carpenter were returning from the house of accused Shahadullah, they met accused Razzaque on the way, who requested the deceased to accompany him to village Konabari for cutting a beehive that very night, The deceased agreed and went away with accused Razzaque, but Muhammad Ali who was accom panied by his, years old daughter returned to his house. The deceased, however, never again returned to his home. Ulfatannessa, the first wife of the deceased, was under the impression that the latter might be spending the night with his second wife Chandraban, who resided in another house, but when the deceased did not return even in the morning she went to the house of Muhammad Ali where she learnt that the deceased had been taken by the accused Razzaque to cut a beehive the previous evening. She, therefore, proceeded to the house of accused Razzaque, but did not find him at home. Next she went to Chandraban's house, but there also she could not get any news of the deceased. The deceased's son Hafezuddin, who is employed at the Dhakeswa; Cotton Mills at Narayanganj, came home in the evening and searched for his father. He also went to Konabari, where his enquiries revealed that no beehive had been cut in that village on the night of the 7th November 1954. Not being able to get any trace of his father, he on the 10th November 1954, at about 10‑30 a.m. lodged infor mation at Badyer Bazar P. S. Besides the facts mentioned above it was also stated in the F. I. R. that there was great enmity between the accused Shahadullah and Jabbar on the one hand, and the deceased on the other hand, over the latter's marriage with Chandraban, and that the informant believed that the said two accused had killed his father with the help of accused Razzaque. On receipt of this information investigation was taken up by A. S. I. Noor Muhammad Mia, who visited the locality the same day at about 5‑30 p.m. He found none of the accused persons at their homes nor was Chandraban found in her house, but he got some information that blood had been seen in a san grass field under a gab tree at village Udartek, which is at a distance of some J or I of a mile to the north of Haturapara. The next day at about noon he went to Udartek, seized from there some earth, some san grass and some leaves of shrubs said to be blood stained, and also examined some Hindus living at village Marichtek, which is to the east of Udartek, and separated from it only by a jala a marshy swamp. Getting some clue he went from there in the afternoon to village Noapara to the west of Haturapara, and there he came across an unused well from which a foul stench was coming out. Leaving a guard at the well for the night the Investigating Officer went away, but returned the next day when, in the afternoon, with the help of some domes (scavengers) procured from the Adamjee Jute Mills recovered a dead body from the said well. This dead body was identified by the informant, his mother and others, as that of the deceased Kasem Ali. The body had a white genzi on, a green `lungi' wrapped round its neck and a pice with a hole tied round its waist with a thread. On holding an inquest the Investigating Officer found a cut wound on the right chin, a big sized cut mark on the throat, a half portion of the left thumb cut off, a half portion of the male organ cut off, and the two testes cut off. The dead body was thereafter sent for post‑mortem examination and three days later the Investi gating Officer also got the statements of the Hindus examined by him at Marichtek recorded by a Magistrate under section 164 of the Criminal P. C. At the trial the prosecution sought to prove the case against the accused persons through 13 witnesses of whom Muhammad Ali (P. W. 1), Ulfatunnessa (P. W. 2), Hafezuddin (P. W. 3), and Abdus Sobhan (P. W. 4) deposed to the facts leading up to the disappearance of the deceased, their search for him, and the identification of the body recovered from the well. In addition to the facts set out earlier it appears from the evidence of P. W. 1 that Chandraban the second wife of the deceased was the widow of an elder brother of the accused Jabbar, who was the paternal uncle of the accused Shahadullah, and the husband of the maternal aunt of the accused Razzaque. He also stated that Chandraban even after her marriage with the deceased continued to reside in her former husband's house. P. W. 2 further stated that during the day on the 7th November 1954, the accused Razzaque came to her house thrice looking for the deceased, who had gone then to the hat and told her that he wanted to get a beehive cut by him at Konabari. P. W. 3 was the only witness who gave evidence of motive. According to him the accused Jabbar himself wanted to marry Chandraban, and the other two accused also were against the marriage of the deceased with Chandraban. Of the other witnesses P. W. 5 was the Police Officer who recorded the F. I. R., P. W. 9 was the Doctor who carried out the post‑mortem examination, P. W. 13 was the Investigating Officer, and P. Ws. 10 and 11 were two Hindu residents of Marichtek, who were only tendered for cross -examination and their evidence was not material. The witnesses, however, who gave direct evidence as to the complicity of the accused persons were P. Ws. 6, 7, 8 and

12. These were all Hindu residents of village Marichtek who, as already stated, were examined for the first time on the 11th November 1954, by the Investigating Officer. Their evidence was substantially to the effect that on the night of the 7th November 1954, which was a moonlit night at about 9 or 10 p.m. they heard cries of "mago" "mago", "bachaiya", "bachaiya"', or "maris na" or "marephalilo" coming from the western direction, they with others ran out of their houses towards that direction, and at or near the gab tree saw 5, 6 or 7 persons, amongst whom they recognised the accused persons, who on being questioned at first denied having heard any cries, but subsequently confessed to having killed the deceased Kasem Ali, whose dead body, these witnesses also claim to have seen in the san field. These witnesses further state that as the accused persons threatened to kill them if they disclosed this to any body they out of fear did not say anything to anybody until the Police called them for examination. Unfortunately, the version given by each of these witnesses was not free from discrepancies, and some of them also complained that the Police had assaulted them for refusing to say that they had actually seen the blows being struck of the deceased. This story of assault appears also to have been accepted by the learned Additional Sessions Judge himself, for in his charge to the Jury he clearly stated: "it seems the Daroga tortured them to bring out the truth from them, probably because he got the information that these witnesses knew everything about the murder, but they were concealing facts from him or deliberately making statements to minimise the offence." As for the discrepancies it appears that the version given by P. W. 6 is materially different from the version given by the other three. This witness states that on reaching near the gab tree he found 5 to 7 persons including the accused, whom he recognised under the tree, and it was only after he bad seen the dead body, and further asked them as to whose body it was; they confessed that they had killed Kasem Ali. This witness did not notice anything in the hands of the accused persons, and even after repeated questioning by the Court stated that he saw no other mark except the broken grass at the place, but when the Court asked him if he saw any blood he replied that he also saw some blood. Again, whilst in his cross‑examination he stated that he along with others called by the Daroga to his boat, in answer to Court's questions he said that he went to the Daroga of his own accord and volunteered his statement. P. W. 7 stated that whilst running from south to north along the west bank of the jala the witness and those with him noticed 6 or 7 persons running in the opposite direction, namely, towards south, who on being questioned by P. W. 6 about the cries as first stated that nothing had happened, then admitted that they had killed a man. On P. W. 6 asking them where the dead man was they pointed out the place where these witnesses saw the dead body in the san field, and ascertained by further questioning that the man killed was Kasem Ali. This witness was the only one who stated that he saw a dagger in the band of accused Razzaque which looked red as if painted with blood. In cross‑exami nation this witness further disclosed that the miscreants did not try to escape on seeing them but threatened them and further stated that after some consultation amongst themselves these witnesses decided that they would not disclose the matter. P. W. 8 stated that he was alone when he ran to the place whence the cries were coming, there he met P. Ws. 6, 10, 12 and others of his village, and saw 3 or 4 persons running towards south from Udartek amongst whom he recognised the accused persons. According to this witness the miscreants when questioned about the cries stated that they had come to break a beehive but then the witness noticed a dead body at a distance of 10 or 12 cubits in the san field. On seeing this the witness states that he got frightened, asked nothing more and ran back home. The version given by P. W. 12 was that he also ran with P. Ws. 6, 10 and another person to Udartek and some others followed them. On going there they found some men coming towards the south, and a few standing under a `gab' tree, who when asked about the cries denied hearing any cries, but whilst an altercation started over this a dead body was noticed some 5 or 7 cubits behind the miscreants in, a san field, and at this stage the latter stated: "when you have seen it you must not tell anybody about it, if you tell anybody we shall kill you", and began to brandish dao and dagger. They also confessed, according to him, that the murdered man was Kasem Ali. It may also be mentioned here that although each of these four witnesses gave the actual cries heard by him no two of their versions were identical. At this stage of the evidence the learned Deputy Legal Remembrancer appearing on behalf of the Crown in support of the Reference argued that the learned Judge's charge to the Jury suffered from serious mis-directions, which had misled the Jury into returning such a divided verdict. In these circumstances he wanted us to send back the case for a retrial. His contention is that if the leaned Judge had accepted the majority verdict and acquitted the accused, the Crown would have been entitled to come up on appeal against acquittal, and in such an appeal, he would, in view of the mis-directions in the charge, have been more than justified in asking for a retrial. He, therefore, argues that the fact that the learned Judge had, finding it impossible to accept the verdict, made a Reference to this Court should not debar him from asking for a retrial. The charge to the Jury in the present case is, in our opinion, a most unsatisfactory one. It contains various serious mis-directions on, questions of law. As the learned Deputy Legal Remembrancer points out even though the statements in the F. I. R. were not put to the informant P. W. 3 as required by section 145 of the Evidence Act, the learned Judge charged the Jury to the following effect: "In the F. I. R., as you have rightly pointed out, there is no mention that Razzaque took away Kasem Ali when they were on their way home. Rather it seems that Kasem Ali of his own accord parted company with Muhammad Mistry, and went to the house of Razzaque. You will consider whether this discrepancy, if it is at all a discrepancy, for Hafezuddin's attention was not drawn to this statement, disproves or tends to disprove the beehive cutting story, The fact remains that this story found expression in the F. I. R. which was lodged before any information was obtained regarding the whereabouts of Kasem Ali". This is using the F. I. R. as substantive evidence. If the informant was not confronted with the statements in the F. I. R. the Jury should have been clearly directed that the same could not be used for contradicting even the informant. Not only was no such direction given but the learned Judge totally omitted to give any directions at all with regard to the use that could be made of the F. I. R. The learned Judge himself, it appears to us, did not at all comprehend the law on the subject. We are at a loss to appreciate the import of the last sentence in the passage quoted above. What did the learned Judge mean? Did he wish the Jury thereby to use the F. I. R. for the purpose of general corroboration of the prosecution case? It rather suggests that he did. This, however, is not all, for, at another place in the charge when the Jury interposed in the midst of the charge and enquired if the F. I. R. adversely affects the evidence of P. W. 1, who was not the informant, the learned Judge promptly charged the Jury that it certainly did if the said witness was present when the F. I. R. was recorded, and that the jury should consider whether the discrepancy, if any, was fatal to the prosecution case. Again although the learned Judge charged the Jury to take into consideration the circumstantial evidence, he did not direct the Jury as to what is circumstantial evidence, and how the same should be taken into consideration. The explanation of the law relating to offences under section 302 and 34 of the P. P. C. again is not only extremely meager but also not in proper sequence. The learned Judge has followed a curious procedure of his own. He has started the charge with a discussion of the prosecution case and the prosecution evidence with the result that the Jury not being directed as to what constituted evidence in the case frequently interrupted him by questions during the delivery of the charge, and made him degrees into explanations which could well have been avoided if the proper sequence had been followed. A few scrappy general observations and a very brief explanation of the law, which was by no means easy to explain, have been somehow interposed in between the discussion of the evidence of the witnesses and the consideration of the cases of the individual accused with a further recapitulation of some of the important evidence at the end. We are in these circumstances in entire agreement with the learned Deputy Legal Remembrancer that the charge did in the present case contain serious mis-directions and may well have misled the Jury, but the question is should we for this reason order a retrial. There is no doubt that since the decision of the Full Bench of the Calcutta High Court in the case of Rafiqueuddin Ahmad and others v. Emperor (I L R 62 Cal. 572), it has been generally accepted that in a Reference under section 307, Criminal P. C. the High Court has in a fit case the power to order a retrial if it considers the same to be necessary in the ends of justice, which, as pointed out by their Lordships of the Privy Council in the case of Ramanagrah Singh v. Emperor (73 I A 174) is the determining factor also for the High Court in disposing of such a Reference. But at the same time we must point out that a retrial is not to be lightly ordered and should not be ordered unless the High Court is unable upon the evidence on the record to come to any definite conclusion of its own after giving due weight to the opinion of the Judge and the Jury or unless it is satisfied that there has been some serious error of procedure which has prejudiced the accused. Mere misdirection of the Jury does not, in our opinion, come under either of these heads. We are also not satisfied that in the present case the ends of justice require any retrial. The next question, therefore, is whether the Reference should be accepted. From what we have already stated with regard to the prosecution evidence it is clear that the main evidence against the accused persons was that of P. Ws. 6, 7, 8 and 12, and the story of the extra judicial confession, which these witnesses sought to establish. Apart from this extra judicial confession there was no other direct evidence of the complicity of the accused persons. The rest of the evidence was merely circumstantial and that too was neither convincing nor complete so as to be sufficient to form the basis of any conviction. The very first circum stance upon which the learned Judge seeks to rely in his letter of Reference is that the accused Razzaque took away the deceased on the pretext of cutting a beehive. This, however, was a circumstance with regard to which the learned Judge himself, in more places than one in his charge, directed the Jury that it was not mentioned in the F. I. R. Again the circumstance that accused Razzaque was seen with a blood‑stained dagger in his hand by P. W. 7 is not only not supported by any other witnesses, but P. W. 6 even goes to the extent of saying that he did not notice anything in the bands of the accused persons. Furthermore, the circumstance that blood‑stained earth and san grass were said to have been seized from under the gab tree lost its weight by reason of the fact that the same were not sent for chemical examination, and there is no evidence that they were stained with human blood. In this state of affairs unless the story of the extra- judicial confession can be believed it cannot be said that the prosecution had succeeded in establishing the guilt of the accused persons in such a way that no reasonable body of men could have reached to a different conclusion. In view of the discrepant nature of the evidence of these witnesses, as we have already indicated earlier, and the manner in which this evidence was brought to light, can it be said that these witnesses were truthful witnesses whose oral testimony should be believed. We have not the least hesitation in saying that upon such tainted evidence we ourselves would be reluctant to convict, far less hold that the view taken by the Jury, in the present case, should not prevail. It is unfortunate that in making this Reference the learned Additional Sessions Judge was totally unmindful of the rule laid down by the Judicial Committee in the case of Ramanugrah v. Emperor and since re‑iterated by our own Federal Court in the case of Chand Barman v. The Crown (P L D 1954 F C 176) that: "in general, if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial Court, and if the jury take one view of the evidence, and the Judge thinks that they should have taken the other, the view of the Jury must prevail, since they are the judges of facts. In such a case a Reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury". A perusal of the learned Judge's charge to the Jury in the present case is by itself, in our view, sufficient to show that the evidence was such that the verdict of not guilty returned by the majority was reasonably possible, and that it was by no means either perverse or manifestly wrong. In the view that we have taken it is not necessary for us to enter upon a discussion of all the objections taken by the learned Advocate appearing on behalf of the accused person except the one relating to the competency of the Reference on the ground that in the letter of Reference it is nowhere stated that the learned Judge considered it necessary in the ends of justice to submit the case to the High Court. All that is stated in the letter of Reference is that the majority verdict has given a shock to his conscience. In the order‑sheet, however, it has been stated that the verdict is clearly against the weight of evidence and perverse, and that the learned Judge is of the opinion that it is necessary in the ends of justice to submit the case to the High Court. It is urged nevertheless, that the Reference should be complete by itself, and the High Court should not be left to seek for the necessity of the Reference from the order‑sheet or some other document. In this connection our attention has also been drawn to the decision of a Bench of this Court in the case of the Crown v. Islam Master and others (7 D L R 205), where it was held that "it must be patent on the face of the letter of Reference that it was necessary for the ends of justice". In the case of the Crown v. Akram Molla (P L R 1 Dacca 175), however, another Bench of this Court took the view that where the necessity for the ends of justice was mentioned in the order‑sheet the mere absence of such expression in the letter of Reference would not vitiate the Reference if it was otherwise in order. In our opinion although as a rule the letter of Reference a should be complete in itself, but we would also be reluctant to return a Reference merely for resubmission in proper form on this technical ground, if we are satisfied from the record that the learned Judge making the Reference is clearly ofd opinion that it is necessary for the ends of justice to do so. In the result, therefore, we reject this Reference, accept the majority verdict of the Jury, and acquit the accused persons. We also direct that the accused persons be set at liberty forthwith if not required in any other case. ISMAIL, J.‑

I agree. Reference rejected.