The High Court's decision was influenced by doubts on the finding of the knife and its ownership, and the Judge's direction to the Jury

JUDGMENT

Sanderson, C.J. - This is a Reference by the learned Sessions Judge of Birbhum in a case in which the accused Sristidhar Mazumdar was charged with murder and with a minor offence. The accused is a youth, whose age is said to be somewhere between 15 and 17 years.

2. The main allegations on behalf of the prosecution were that the accused and the deceased Umapada were attending a school at Bolpur, that they both lived in the house of a Pleader at Bolpur , that they occupied the same room, that on the morning of the occurrence between 10 and 11 o'clock they were seen preparing themselves for bathing and that later in the day the deceased boy was found by a woman sometime about 2 o'clock lying in an irrigation pit near a tank which was about half a mile away from the place where the boys were lodging--half of his body was covered in the mud--he was wounded and he had apparently lost a considerable amount of blood. It was alleged that he stated that the accused was the person who had inflicted the wounds upon him and that he made that statement in the first instance to the woman, who found him, and then to four men, who were brought by the same woman to the place where the deceased was lying, and to several responsible and reliable persons who were broxight to the place afterwards upon an alarm being raised in Bolpur--one of whom was the President of the Union Board, another was the Secretary and two others were Pleaders. In addition to this, his deposition was taken by an Honorary Magistrate in the afternoon of the same day after he was taken to the Hospital. The evidence is that he was conscious at the time although he could speak only faintly. To all those persons he made the same statement, viz., that, the accused was the person who had committed the assault upon him.

3. The other part of the case was that the accused had made a certain statement and the result was that the Sub-Inspector of Police and other persons, after searching the room of the accused, went to the tank and then the accused threw a clod of earth into the tank for the purpose of indicating the place where he had thrown something, that a search was made and a knife of a peculiar shape was found in the tank. Two witnesses were called to prove that this knife belonged to the accused person. The Jury by a majority of four to one were in favour of an acquittal on both the charges. The learned Judge did not accept their verdict and referred the case to the High Court u/s 307 of the Code of Criminal Procedure.

4. The question is what course are we to adopt upon this Reference. u/s 307, Sub-section (3), of the Code of Criminal Procedure, we have all the powers which this Court may exercise on an appeal, and subject thereto, this Court shall, after considering the entire evidence and after giving due weight to the opinions of the- Sessions Judge and the Jury, acquit or convict the accused of any offence of which the Jury could have convicted him upon the charge framed and placed before it.

5. As regards the first part of the case, namely, the statements, which the deceased is alleged to have made to the various witnesses, and in his deposition, in my judgment, it may be said that there is a grave case against the accused. I find it exceedingly difficult to believe that the deceased would have made those statements against the accused unless they were true; that the statements were made by the deceased is proved beyond all doubt, by some of the witnesses whose testimony cannot be impeached. This Court, however, is placed in a difficult position by reason of the other part of the case, and the evidence which relates to the finding of the knife and the ownership of it. As regards the finding of the knife, the learned Judge in his long and careful direction to the Jury, amongst other things, said this; "If it Avas found, the fact that the accused indicated the point where it was found is suspicious." From this I gather that the learned Judge meant that as the accused h