The main legal point established in the judgment is the application of Section 34 of the Indian Penal Code and the direction for further trial under Section 302 combined with Section 114 of the Indian Penal Code.

JUDGMENT

Lancelot Sanderson, C.J. - This is a Reference u/s 307 of the Criminal Procedure Code by the Second Additional Sessions Judge of Dacca in a case in which two persons, Manindra Kumar Sen and Profulla Kumar Mazumdar were charged with murder. The name of the man who is alleged to have been murdered was Mukunda Lal Goon, and I do not suppose that any one who has read the evidence in this case, has any doubt that Mukunda Lal Goon was, in fact, murdered. The Jury were unanimous in their verdict which runs as follows:

We think Manindra not guilty: but we think there is a doubt in the case of Profulla, and that he should get the benefit of the doubt.

2. The learned Judge accepted the unanimous verdict of the Jury that Manindra was not guilty: he found that this accused was not guilty and he directed him to be acquitted and released from custody.

3. With regard to Profulla, the learned Judge disagreed with the verdict of the Jury, and referred the case for the decision of the High Court u/s 307 of the Criminal Procedure Code. The Letter of Reference sets out the reasons which actuated the learned Judge to refer this matter to the High Court, and he stated the offence of which be considered Profulla to be guilty, viz., u/s 302/34, of the Indian Penal Code.

4. Mukunda was stabbed in the neck and when assistance came to him, he as asserted that he had been stabbed by two men, whom he pointed out, and who were at that time running away. The two men were pursued. One of them was caught and taken into custody. This was Profulla whose case is the subject of this Reference. The case of Manindra turned to a large extent upon the question of identification, and the learned Judge, in a charge which is conspicuous for its clearness and fairness, dealt with the evidence relating to this question, and I gather from his charge that the reason why he accepted the verdict, of the Jury as to Manindra was that the learned Judge, having regard to the evidence as to the identification of Manindra, could not say that the verdict was unreasonable.

5. In his Letter of Reference the learned Judge dealt with the verdict of the Jury with regard to Profulla as follows: "The Jury were unanimous that there is not sufficient evidence to find profulla Kumar Mazumdar guilty u/s 302 without the aid of Section 34. This, verdict too I accept, though I do not agree with it. But the Jury also found unanimously that there was a doubt that accused 302/34 Profulla was guilty u/s I am clearly of opinion that it is necessary for the ends of justice to refer the case. I have the honour to submit the records for the orders of the High Court u/s 307 of the Criminal Procedure Code." A later passage in the Reference is as follows: "Through, I personally am satisfied that Profulla, accused, struck the fatal blow, I can accept the Jury's verdict that there is a doubt on the matter." I understand the learned Judge to mean that, although he himself was set aside that Profulla was the man who struck the blow, the Jury evidently had a doubt on the matter, and that he was not able to say that, that doubt was unreasonable; consequently, he could accept the verdict of the Jury as to that part of the case. He then went on to say, "But the Jury also held that there is a reasonable doubt that the to youths acted in furtherance of a common intention. This I consider perverse. To my mind the admitted circumstances are wholly inconsistent with the view that either of the two youths could be ignorant of his companion's intention." He then set out the reasons for that conclusion; and continued," I am of opinion that accused Profulla is clearly guilty u/s 302/34, of the Indian Penal Code, and the verdict of the Jury, is perverse due to reluctance to find any one guilty of a capital crime."

6. The learned Counsel for the Crown contended that, having regard to the form in which the verdict regarding Profulla Kumar Mazumdar was given, and to the fact that the learned Judge recorded his disagreement wi