The court emphasized the importance of considering the entire evidence and the need to address any discrimination in the verdict. The withholding of crucial witnesses by the prosecution was also highlighted as raising serious doubts about the prosecution's evidence.

JUDGMENT

Blank, J. - The facts from which the present reference and appeal arise are stated conveniently in the following extract from the letter of reference:

The prosecution case is that on the afternoon of Thursday, the 30th April last, four persons, viz., Hatem, Arshed, Abdul Aziz and Safiladdi were coming to Jaliaghata from Mithapur. When they came to the south-west of the house of one Kashem, in Jaliaghata, a party of armed men headed by one Seru attacked them. Arshed and Abdul Aziz fled into the house of Kasem unscathed. Hatem, Safiladdi and his brother Paban who came to their rescue, were injured with lejas. The injured men ran inside Kasem's house and took shelter in his hut. Hatem fell down on the door leading to the hatina of the hut. They were chased by the assailants. Hatem's mother came there running from her house which is close by and lamented over her son. Seru hurled a leja which struck Hatem's mother JarinaBibi. She at once fell dead there. The accused pleaded not guilty. They suggested a different version of the occurrence at a different place. They further suggested that Paban killed Jarina Bibi with leja.

2. Fourteen accused were convicted u/s 148, Penal Code, on an 8 to 1 verdict. With regard to the charge u/s 149 and 302, Penal Code, the jury returned a unanimous verdict of not guilty in favour of 5 accused and a verdict of guilty, by 5 to 4, in respect of the remaining accused whose cases have been referred by the learned Additional Sessions Judge. The learned Additional Sessions Judge agreed with the whole of the verdict of the jury except the majority verdict of guilty u/s 149 and 302. His reasons for reference were that this part of the verdict was based on misappreciation of evidence, there being no grounds for discrimination as between the five accused unanimously found not guilty and the nine accused found guilty by a majority verdict of 5 to 4; further that certain witnesses for the prosecution had been withheld whose evidence was so material that the jury ought to have presumed against the prosecution. The appeal is on behalf of the fourteen accused who were convicted u/s 148, Penal Code, and sentenced to rigorous imprisonment for one year each except in the case of 3 persons who were given the benefit of Section 562, Criminal P.C. When the hearing opened a preliminary objection was taken on behalf of the Crown. Section 307(2), Criminal P.C,.runs: "Whenever the Judge submits a ease under this section he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried. . ." The words "such accused" refer to the words "any accused person" in Sub-section (1); these words in both Sub-sections were inserted by the amending Act of 1923 to remove doubts, which had arisen from certain decisions, whether it was competent to a Sessions judge to refer the case of one or some only of a number of accused persons. On the statute as it now stands, the present reference evidently cannot be attacked on the ground that the reference ought to have been made in respect of all the accused persons and of all the charges. We make these observations as the Crown first submitted that the reference was bad for the reason just stated. This submission was sought to be supported by the observations of Lort-Williams J. in Emperor Vs. Bisnoo Chandra Das, AIR 1933 Cal 665 . Apart, however, from the consideration that the observations of the learned Judge are not part of the findings of the Court it is clear from the text of those observations that the headnote does not represent them with complete accuracy; in particular para. 3 of the decision appearing at page 1184, may be referred to.

3. An objection of some substance is however that the reference in its present form is incompetent. It will be observed that the 9 persons whose cases are now referred were among the 14 convicted u/s 148. For the Crown the case in Emperor Vs. Taribullah Shaikh and Others, AIR 1921 Cal 252 was ref