JUDGMENT

Iqbal Ahmad, J. - Six persons named Sumera, Badri Bisal, Shyam Lal, Nannhoo, Debi Dayai and Bissey were tried by the learned Sessions and Subordinate Judge of Cawnpore, for an offence punishable u/s 395, I.P.C. The trial was by jury. The jury unanimously returned a verdict of guilty against Sumera, Badri Bisal and Shyam Lal accused and by a majority of 3 to 2 the jury held that the charge was also brought home to Nannhoo. The learned Judge accepted the verdict of the jury as regards these four persons and convicted them. The present appeal is by the four convicted persons. The jury returned a unanimous verdict of not guilty as regards Debi Dayal and Bissey. The learned' Judge disagreed with the verdict of the jury and has referred their case to this Court u/s 307, Criminal P.C., with the recommendation that the verdict of the jury so far as Debi Dayal and Bissey are concerned be set aside and they be convicted u/s 395, I.P.C. A reference to the charge to the jury discloses serious misdirection's by the Judge and as we have arrived at the conclusion that the verdict of the jury is vitiated owing to such misdirection's we have decided not only to refuse to accept the referenc