The judgment establishes the principle that the High Court has the power to order a retrial in cases where there has been no proper or adequate trial, as interpreted under Section 307, Criminal P.C.

JUDGMENT

Mukherji, J. - The four accused persons Rafiqueuddin Ahmed, Jyotish Chandra Ghose, Jatindra Nath Ray and Bhengra alias Hasimuddin Mamud were tried by the Sessions Judge of Rangpur with the aid of a jury. The charges on which they were tried were for offences under Sections 302 and 392, I.P.C., a charge of murder for having caused the death of one Gobind Ram Marwari and a charge of robbery for having stolen away some valuables and cash which were in the possession of the said Gobind Ram Marwari in the room in which he was murdered. The jury at first brought in a divided verdict of 5 to 4. The Judge thereupon asked them to retire and to see if they could be unanimous. They retired and after a deliberation for over fifteen minutes they came back and said that they were still divided, this time in the proportion of 6 to 3; six of the jurors were of opinion that the case against the accused was reasonably doubtful so that they should be held not guilty and the other three were of opinion that all the four accused persons were guilty under both the charges on which they had been tried. The learned Judge, being of opinion that the verdict of the majority of the jury was unreasonable and that the verdict of the minority should be accepted has made this reference to this Court under the provisions of Section 307, Criminal P.C.

2. For our present purposes it is not necessary to recapitulate the facts of the case; they will be found set out in sufficient detail in the learned Judge's charge to the jury, and a summary thereof is also to be found in his letter of reference addressed to this Court. It will be enough to state for the purpose of the present case that the evidence adduced on behalf of the prosecution, in order to establish the charges against the accused persons, roughly speaking, falls under three heads: first, the confessions which were made by the four accused persons but were subsequently retracted by them; second, the production of some articles, which were alleged to be the proceeds of the crime, at different times and from different places, by the accused persons severally with the exception of one occasion when some articles are said to have been produced by two of them jointly; and third, the identity of foot-prints of three of the accused persons found in the room in which the crime was committed. After we had heard the arguments addressed to us on behalf of the Crown and while the case on behalf of two of the accused persons was being argued before us by Mr. Biswas who was appearing on their behalf, it became apparent to us that upon the present state of the record it would not be possible for us to deal with the case on its merits with any degree of confidence. The difficulty that we felt arose out of certain defects which were noticed in the manner in which the evidence was recorded by the learned Judge and also in consequence of the mode that was adopted on behalf of the prosecution in the matter of leading the evidence that was being adduced in support of the charges. As regards the manner in which the evidence has been recorded I propose to say a few words in order to explain the nature of the difficulty that we have experienced. The prosecution case is that the four accused persons, on one occasion two of them jointly and on other occasions some one of them severally took the police to certain places and produced some of the articles which according to the prosecution, were in the possession of the deceased Gobind Ram Marwari.

3. The searches, in the course of which these articles were produced, are evidenced by a number of search lists, out of which it will be sufficient to refer here to four, namely, Exs. 10, 11, 12 and 13. Ex. 10 is a search list relating to the production by Jatin and Jyotish of certain articles on 17th May 1934 at 8 p.m. I may state here that the occurrence which forms the subject matter of this case is alleged to have taken place at about 11 p.m. on the night of 16th May 1934. Ex 1