1. (After setting out facts the Judgment proceeded) I have tried to present both sides of the case. This appears to be the respective case of the prosecution and the defence also in the Court below.
2. The learned Sessions Judge in his detailed charge to the Jury has summed up the case of both the parties fairly and fully. Upon the presentation of the case of both sides by the learned Sessions Judge and I believe upon the full arguments on both sides by eminent lawyers, the Jury returned an unanimous verdict of not guilty. The learned Sessions Judge, on the other hand, was of opinion that the case against the appellants, the five accused before us, was fully established. He indicated his views in summing up the case in the manner in which he is under the law entitled to do, leaving the Jury to form their own independent opinion. He has repeated the same in his letter of reference to this Court.
3. Thus, whereas on the one band we have got the detailed reasons for the opinion of the learned Sessions Judge for holding that the case against the five accused before us has been proved, we have not gob the reasons which prompted the Jury to return their verdict of not guilty. The verdict of the Jury is in the following terms: “We unanimously find all the accused not guilty” The learned judge thereafter put two questions to the Jury. The answers and questions are given below:—
Q. “Do yon find that it was the dead body of Subans?”
A. “We have got doubts as to that even.”
Q. “You say that the accused are not guilty, do you hold they were not present at the time of crime”?
A. “Yes.”
4. At that very time the learned Judge made up his mind to disagree with the verdict of the Jury as is clear from the following order:—
“The Jury are unanimously of opinion that all the accused are not guilty. I disagree with this verdict in case of the accused Bhuilotan Singh, Gobind Singh, Dipan Singh, Juglal Singh and Bipat Singh and I refer their case to the Hon'ble High Court,” etc.
5. On a reference under section 307 of the Cr PC this Court has to pass its order acquitting or convicting the accused “after considering the entire evidence and after giving due weight to the opinion of the Sessions Judge and Jury. It was pointed out by Mr. Justice Davies in the case of Emperor v. Chellan(1) that the Legislature, in directing that this Court should duly weigh the opinions of the Jury, gives an implied authority for the taking of such opinions And the Sessions Judge would have dona well, before referring the case to the High Court, to have recorded, the opinions of the Jury. We also agree with the judgment of Sir Subrahmania Ayyar, Officiating Chief Justice, and Mr. Justice Boddam that the circumstances that no such reasons have been ascertained, does not warrant the High Court to decline to go into the evidence and to arrive at its own judgment after giving due weight to the views taken by the Judge and the Jury as to the guilt or innocence of the accused. This, to my mind, sums up the whole law on the subject and has been accepted in various cases; vide Emperor v. Surnamoyee Biswas(2), Emperor v. Asgar Mandal(3), Emperor v. Promatha Nath Bakchi(4). Queen v. Sham Bagdi(5), Emperor v. Annada Charan Thakur(6) and Emperor v. Mussamat Zohra(7).
6. The above mentioned cases also establish the proposition, which is plain upon the language of section 307, clause (3), itself, that upon such a reference the Court is bound to consider the entire evidence and give weight to the opinions of the cessions Judge and the Jury. Although the learned Sessions Judge in this case would have been well advised if he had asked the Jury to give the reason for their verdict, was do not think that we can refuse to entertain the present reference. The absence of the reasons of the Jury for their verdict only enhances our responsibility in the matter and requires us to go into the evidence more carefully.
7. The judgment then discussed the evidence and concluded. We accordingly convict Bhuilotan, Dipan and Gobind for having murdered Subans under section 302, Indian Penal Code, and sentence each of them to transportation for life, as it is the only alternative sentence that can be awarded to the accused in this case.
8. Order accordingly.