The weight of a retracted confession, sufficiency of evidence for conviction, and the need for proper guidance to the jury on evaluating evidence are central legal points established in the judgment.

JUDGMENT

Khundkar, J. - This is a reference u/s 374, Criminal P.C. for confirmation of the sentences of death passed upon the two accused Kauser Ali Sk. and Asmat (Ali) Mallik, who were convicted u/s 302/34, Penal Code. Along with the reference there is an appeal by the two condemned men. The verdict of the jury as against Kauser Ali Sk. was unanimous, but in the case of Asmat it was divided in the proportion of 5 to 2. Before saying anything about the merits of the case, a point of law raised on behalf of the appellants should be dealt with. Upon the order-sheet of the learned trial Judge the first entry under the date 9th August 1934 reads as follows:

Owing to the paucity of Jurors, the trial commenced with seven Jurors. Out of eighteen Jurors called, only nine attended. Out of those nine one is too ill to sit and another gentleman, who is a Chemical Assistant in the Government Test House, Alipore, submits a letter from the Director, Government Test House, with the request to exempt the Assistant, as the Assistant is engaged in the testing of important war material. Thus, two gentlemen can't sit (one being ill.)

The entry just quoted makes it clear that eighteen jurors were summoned for the trial, that nine attended, that out of these, two were unable to sit, and that in the result seven persons were empanelled as the jury for the case. As far as the record goes, it does not appear that it was practicable in the circumstances for the learned Judge to have empanelled a jury consisting of nine persons. It has nevertheless been argued on behalf of the appellants that the jury was not constituted in accordance with law. It seems to us that the point is covered by authority: see in this connexion the following cases, Emperor Vs. Damullya Molla, AIR 1931 Cal 261 ; Mukunda Murari Pal Vs. Emperor, AIR 1934 Cal 10 ; Emperor Vs. Bent Pramanik and Others, AIR 1935 Cal 407 and Emperor Vs. Kishori Khanra, AIR 1943 Cal 515 . The case in Emperor Vs. Bent Pramanik and Others, AIR 1935 Cal 407 has been referred to with approval by the Judicial Committee of the Privy Council in AIR 1940 176 (Privy Council) . This point must accordingly be negatived.

2. The case for the prosecution very briefly stated was as follows: Accused 1 Kauser Ali Sk. had at one time been married to a niece of one Sona Sk. who is P. W. 10. After her death he married one Jamila Bibi who was an orphan living with her grand-mother Naju Bibi, P. W. 7, an old beggar woman. Kauser, who is a mill-hand, lived with Jamila in the eooly lines attached to a mill at Budge Budge. But there is some evidence that before the occurrence he used to spend his holidays in the house of P. W. 10 Sona Sk. Jamila whose age, according to the evidence, could not have exceeded 16, was in the habit of running away from Kauser and of going to stay with her grand-mother Naju Bibi. On Wednesday, the 3rd of March at or about 6 o'clock in the evening Kauser and Jamila together left their quarters in the cooly lines at Budge Budge, and there is evidence that Kauser said that he was taking his wife to Balarampore which is the village in which his relation Sona Sk. lives. At a spot not far from the cooly lines the pair were joined by accused 2 Asmat. They proceeded to a place which, as far as the evidence goes, would seem to be on the way to Balarampore and not far from that place. This place has been variously described in the evidence as Nandanpur and Nandarampur. Here the party halted for a time, and the accused Asmat went away and procured toddy some of which was consumed by the accused Kauser. Thereafter the party entered a bamboo grove, which as far as we can ascertain from the evidence on the record lies in secluded spot. Here Asmat stabbed Jamila to death with a knife, while the husband Kauser stood by.

3. As against Kauser the case for the prosecution would indeed seem to be that he took an active part in the murder by holding his wife by the hands while Asmat was stabbing her. After the occurrence Kau