The judgment underscores the significance of positive affirmative evidence of guilt and the need to carefully consider the credibility of the evidence presented.

JUDGMENT

Mookerjee, J. - This is a Reference u/s 307 of the Criminal Procedure Code in respect of fifteen accused persons; they were tried jointly with another who has been acquitted by the Court below. The accused were charged with offences under Sections 147, 148, 325 read with Sections 149, 343 and 379, Indian Penal Code. The jury returned a divided verdict. By a majority of four to one, the jury found all the accused not guilty of all the. charges. The minority verdict was that all the accused, except Abdul Kader, were guilty of all the charges except the change u/s 379. The Sessions Judge accepted the unanimous verdict that Abdul Kader was not guilty, and that Anwar Ali was not guilty u/s 379. He further accepted the verdict of the majority of the jury in so far as they acquitted Mamfru Chowdhury, Fateh Chowdhury and Lakshmikanta of the charge u/s 148; but he declined to accept the majority verdict in other respects and decided to refer the case of the accused other than Abdul Kader (who was acquitted) to this Court for consideration.

2. The prosecution was instituted by reason of an incident which is alleged to have taken place on the 11th January, 1922. The subject-matter of the dispute is a large Khasmahal jote in Cox's Bazar Sub-Division, which is now held under Government by Abdul Latif Chowdhury who purchased it from Ashraf Ali on the 30th March, 1919. The land which was formerly let out by Ashraf Ali to a number of tenants, abuts on a river on three sides and is protected by an embankment. This was damaged by a cyclone in 1916, with the result that Ashraf Ali took advantage of the catastrophe to bring the land into khas possession and to cultivate it by means of annual tenants. This caused some dissatisfaction among them, specially as Abdul Latif, since his purchase in. 1919, continued the policy initiated by his predecessor. This resulted in a series, of small disturbances leading to proceedings under the preventive sections, of the Criminal Procedure Code. The" difficulty of the situation was increased when an adverse title was claimed by one Gaganeswari, the wife of Babu Bamratan Chaudhuri, who set up some persons as her tenants. In such circumstances, there were, as might have been expected, attempts by the rival claimants to secure exclusive possession of the disputed tract; this sufficiently accounts for the disturbed condition of the property during the years 1919, 1920, 1921. On the 25th March, 1921, there was a proceeding u/s 107, Criminal Procedure Code, which resulted in an order made on the 9th April, 1921, when some members of the accused party were warned not to molest Abdul Latif and his men. This was apparently ineffectual, and a second proceeding u/s 107 was instituted on the 1st July, 1921, which terminated on the 15th November, 1921, when, it is alleged, the accused party filed a petition and agreed not to molest Abdul Latif and his adherents. Not satisfied with this, Abdul Latif applied on the 13th December, 1921, to the police for protection, and a constable was deputed to keep the peace. On the 29th December, 1921, the accused party informed the police that Abdul Latif was wrongfully cutting the paddy. On the 1st January, 1922, the police intervened and directed both the parties not to enter the land till the orders of the Magistrate could be obtained. On the 3rd January, 1922, the Sub-Divisional Magistrate of Cox's Bazar made an order u/s 144, Criminal Procedure Code, directing several members of the accused party not to enter the disputed land. Abdul Latif was not slow to make the best use of this order and began to cut the paddy. This led to an application by the accused party to the Sub-Divisional Magistrate on the 9th January, 1922. He directed that if there were any ripe crops on the disputed land, they should be cut and placed in the custody of a reliable third party. He further directed the police to make an enquiry and to submit full particulars on or before the 16th January, 1922. The