This is a Reference under sec. 307, C. Cr. P., from the verdict of a jury, acquitting the accused persons of offences punishable, respectively, under sec. 116 read with sec. 161 and sec. 116 read with sec. 466 of the Indian Penal Code.

We must observe at the outset that it seems to us very doubtful whether the jury intended to acquit the accused person Ramdas Hazra. After the verdict of not guilty against the first accused, and the verdict of guilty against the second accused person had been recorded, Ramdas Hazra, the third accused, was found to be “kam doshi,” that is, a little guilty or ‘less guilty.’ Obviously, if it is to be taken by itself, as denoting something intermediate between ‘guilty’ and ‘not guilty,’ this verdict was not one which the jury could legally give. If it is to be taken in connection with the verdict as against the second accused, the probable meaning would appear to be that the third accused was guilty, but in a less degree than the second accused.

The Judge says that after recording the verdict he asked the foreman a second time what was the verdict against Ramdas Hazra, and the same answer was given:—‘kam doshi.’ Then the learned Sessions Judge says that he considered it improper further to question the foreman on this point; the Judge, therefore, recorded a verdict of ‘not guilty’ as against Ramdas Hazra.

We are bound to say that the Judge took a mistaken view of his duty. He was bound to obtain from the jury a distinct verdict as against Ramdas Hazra. The provisions of sec. 303, C. Cr. P., empower a Judge to ask such questions as are necessary to ascertain what the verdict of the jury is; and it was the plain duty of the Judge in the present case not to be content with the mere repetition by the foreman of the jury of the same ambiguous verdict, expressed in the same words, but to ascertain what they really meant their verdict to be. Why the learned Judge supposed it to be improper to take this step, which the law empowers him to take, we do not understand.

In his letter of reference the learned Sessions Judge again notices the matter. He says that he considered it improper for him to decide whether the jury meant that Ramdas Hazra was guilty in a less degree than the person against whom the verdict of guilty was recorded; and he suggests that if that was the case, “due notice should be taken of the same” by this Court.

It is obvious that this Court cannot supply by conjecture or inference the omission on the part of the Sessions Judge to ascertain from the jurors themselves what they meant by their verdict, and as the Sessions Judge has formally recorded a verdict of ‘not guilty’ as against Ramdas Hazra, we can only act upon the verdict so recorded.

The case arose out of certain proceedings in a certificate case in respect of an estate in which a minor named Ananda Lal Gossain and the accused Chidghan Lal Gossain were interested. The estate was sold for some trifling arrear on account of process-fees. Endeavours were afterwards made to get the sale set aside, but unsuccessfully. Admittedly Chidghan took part in the steps that were adopted for the purpose; but it is alleged that he afterwards altered his mind and colluded with the auction-purchaser with what object, or for what advantage to himself, has not been suggested.

It is said that when it was proposed to appeal to the Commissioner and copies were to be taken of certain of the certificate papers for the purpose, Chidghan Lal and his wife's mukhtear Brojendra Lal Pakar, the person who has been convicted, offered bribes to the copyist Nityanund Dutt, and to a mohurir in the Burdwan Collector's office, named Hem Chandra Sanyal, either to make, or to allow them to make, such an alteration in the certificate papers as would have the effect of getting rid of an apparently fatal defect in the proceedings, namely, that they had been taken in the name of the minor owner's mother, instead of his own.

Ramdas Hazra, a young mohurir in the Collector's office, is said to have added his persuasions to those of Chidghan and Brojendra Lal, with the object of overcoming the scruples of Nityanund and Hem Chandra; but why he should have done this or why he should have been called in by Chidghan and Brojendra to their assistance does not appear. As for Chidghan himself, primâ facie, as we have seen, his interests were identical with those of the minor, who would gain by the setting aside of the sale; and nothing has been shown to the contrary.

That some attempt was made, on the one side or the other, to tamper with the certificate papers at the time in question is petty clear; but whether it was made by the accused persons, and in the manner which has been described by the prosecution is another matter.

The learned Sessions Judge, in his summing up to the jury, bade them notice that there were many weak points in the evidence of the principal witnesses, to which it would be the duty of the jury to give due weight; and we think that the charge contains on the face of it, ample justification for the jury declining to act on the evidence which was placed before them. It may be, as the learned Sessions Judge says, that it was illogical on their part at the same time to convict Brojendra and to acquit Chidghan; but the question with which we have to deal is simply whether the accused now before us were rightly or wrongly acquitted upon the evidence.

It seems to us that the story, as told by the prosecution, is, on the face of it, by no means free from improbability from the open manner in which the overtures are said to have been made, among other considerations; and, what is of still more importance, its credibility is very seriously affected by the subsequent conduct of the two witnesses, Nityadhan and Hem Chandra.

Hem Chandra tells us that after consulting with another person he reported the matter to the Deputy Collector in charge of the certificate department and that he made over to that officer for safe custody the record in question together with a confidential slip in writing, in which he stated all the facts. No doubt, that was the action which Hem Chandra would naturally have been expected to take in the circumstances which he describes; but when his statements on the subject come to be tested, they are found to be absolutely false. The Deputy Collector flatly contradicts him as to the purport of the oral report. The slip is before us, and we find that the account which Hem Chandra gives of its contents is wholly untrue. It is marked Ex. D, and runs exactly as follows:—“I most respectfully beg to report that the party interested in case No. 1407 of 1898–1899, is trying to interpolate something in the record; and I am afraid if the record be destroyed by them; portion of the record has been taken by the comparing clerk for copy, for which a receipt is taken and attached herewith. I pray that the record may be kept with your Honour; submitted 20th July, 1900.” There is not a word in this report about any offer of a bribe having been made to Hem Chandra Sanyal, or of any request having been made to him that he should either make an interpolation himself, or allow it to be made by some other person, nor is any body named.

When it is found that the witness not only did not in fact behave in the manner in which he ought to have behaved and in which presumably he naturally would have behaved, had his story as to the overtures alleged to have been made to him been true; but that he has been guilty of manifest falsehood on the subject of his own conduct, how can we safely accept his story as to the action of this accused persons.

As to the witness Nityanund, again, admittedly he took no steps on the day when he says the overtures were made to him to inform any of his superiors of what had happened; nor indeed did he do anything in the matter of his own accord. It was only when he was questioned by the record-keeper to whom he was subordinate, on the following day when rumours had got about of some attempt to tamper with the record, that he made any statement at all on the subject. He was then called upon by the record-keeper and the sheristadar to submit a written report. It would have taken perhaps ten minutes, or a quarter of an hour, to write such a report, and he could easily have done it then and there, but he delayed for another day, and then submitted the report, Ex. C, in which he stated that “Muktear Brojendra Lal Sarkar, Ramdas Hazra and other men in their company” had come to him and the muktear had asked him to add a name, or allowed it to be added to the “certificate demand.” No further details were given; nothing was said in the report as originally submitted, about any offer of a bribe, though an addition was made afterwards containing an allegation on the subject, and Chidghan's name was not mentioned in the report at all.

We have just noticed that according to Nityanund's report the document with which it was proposed to tamper was the demand certificate. The learned counsel for the accused has pointed out that the original story was limited to that one document, and that at the time of the departmental enquiry which was held a few days after the report was submitted by Nityanund he stated distinctly that he was requested to insert the name in the Demand Certificate, and in no other paper. It is, however, obvious that any interpolation in that document alone would have been worse than useless, for it would have been betrayed by several other connected documents in the certificate record. Indeed, even if all the connected papers on the record could have been altered successfully, so far as the appearance of each was concerned, there would still have remained the notice which had been served on the minor's mother. That would be in her hands, beyond the reach of Chidghan and available for production, and a comparison of it with the connected documents upon the certificate record would at once have shown that the latter had been tampered with. This last point seems to have been overlooked; but the original story has been developed to the extent of including the connected documents upon the record in the scheme of interpolation said to have been formed and proposed by the accused persons.

We thus find very great difficulty in accepting the evidence of the principal witnesses. The corroborative evidence, even as far as it goes, seems to us to be by no means convincing, and even were it otherwise, the corroborative evidence would of course be useless by itself.

No doubt, as we have said, there seems to have been some attempt to tamper with the certificate record, but the case for the defence was that attempt was made by the other side. Whatever may be the truth of the matter, we do not think that the accused persons can safely be convicted upon the evidence adduced by the prosecution, and we accordingly acquit them.

We feel constrained to observe that we do not think that the learned Sessions Judge was justified in taking up the time of this Court by making a reference in a case in which the evidence for the prosecution was, on his own showing in his charge to the jury, so open to hostile criticism as to justify the jury in regarding it with suspicion.

We must also add that more of our time has been taken up than would otherwise have been necessary in consequence of the way in which the learned Sessions Judge has made his record. There are numerous untranslated vernacular passages in the depositions and the exhibits consist of a confused mass of papers, no distinction having been made between the exhibits for the prosecution and those for the defence; and no list of exhibits having been made in the Court of Sessions. While such of the documents as are in the vernacular have been left untranslated, in disregard to the standing orders of this Court, contained in rule 25(e) of the Criminal General Rules and Circular Orders, at p. 21.

The accused persons are acquitted and will be released from bail.

Verdict upheld.