1. This is a reference under Section 374, Criminal P.C., in the case of accused 2, Monohar Mandal and Kalicharan Mandal; the former was charged with the offence of murder of one Batikanta Biswas under Section 302, I.P.C, and Kali Charan under Section 302/114, I.P.C. The jury found unanimously that both Monohar and Kalicharan instigated the murder and were present at the place of occurrence : a majority of 5 found that Monohar actually shot at and committed the murder of Ratikanta while the minority of 4 gave him the benefit of the double as to whether he actually fired the shot which caused the death. The occurrence took place after nightfall somewhere about 8 or 8-30 p.m. on 11th May 1929. For the details the prosecution must needs depend on the statement of the approver one Santosh Bain who was present.
2. According to Santosh, Monohar had approached him in Magh with information that Kalicharan was offering 60 for obtaining a gun and Rs. 140 for the murder of Ratikanta. Accordingly one Carekrista of Bhalua was approached but he declined to make over his gun and a similar attempt from one Sukhlal came to nothing. Then the approver goes on to say that in Falgoon he accompanied Monohar to the house of one Bam of Barakhalsi, and from him stole a gun which they proceeded to conceal in a hay stack of one Hiralal Bairagj. Monohar then gave Santosh 6/. Thereafter powder was purchased and three lead bullets prepared by Monohar. Then one day they set off to effect their purpose but on the way Monohar thought the gun was overloaded and the head of the ramrod broke off in the barrel, so it had to be fired off to clear it and the result was a crack in the stock. Nothing was done on that occasion and the gun was hidden in the old place. Then Monohar made two more bullets and put a new head on the ramrod. On two other occasions they set out with the gun powder and bullets but nothing came of it.
3. Then on Saturday the day of the occurrence Santosh says he was summoned by Monohar and found Kalicharan there. A little after sunset they twp went to Hiralal’s bari, got the gun and set out, they crossed the Khal by a bamboo bridge and met Kalicharan near the house of one Nim Chand. Monohar loaded the gun, while Santosh spent 3 or 4 matches trying to light a cigarette, Then the three of them went to Bati-kanta’s bari near by. Batikanta was at the time busying himself about the needs of his guest in the outer ‘house. Then Batikanta returned and sat on the floor of his hut with his feet; on the verandah. He began to smoke and a lamp was near by. Then the three advanced to the cover of a ruined hut with a ma’t screen distant only 5 or 6 cubits from where Batikanta was. Then Monohar fired the gun and shot Batikanta who died practically at once. The three then fled. Kalicharan going off towards his house, while Manohar and Santosh taking the gun swam over the khal and hid the gun in the stack of one Harobola and also buried the powder flask in Santosh’s bari. The neighbours collected on the spot and the first information was given at the thana, 2 miles away, at 10 p.m. that evening by a man named Mandar Tarafdar. The case against the accused depends on the view taken as to the corroboration of the approver’s story in material particulars and whether it is such taken along with the other facts and circumstances that it can be relied upon as bringing home the guilt for the crime to the two accused persons.
4. As regards some particulars there is undoubtedly corroboration. The gun and powder flask were produced following the statement of Santosh. There is a crack in the stock which had become larger, according to the owner, since the gun left his possession. There was the new ramrod head. The bullets were recovered in and just outside the hut, and the gun expert says they must have been fired from a close range of about sax yards from a single barrelled gun. We have also the F.I.R. dated 5th March 1929, given by Bamcharan Mandal about the theft of his gun : some pieces of lead discovered in Monohar’s house : and some matches picked up where Santosh said he had lighted a cigarette.
5. It is upon the question of the identity of the accused persons as participators in the occurrence that the corroboration of the approver’s story requires most careful investigation. In one matter regarding dates there are certain inconsistencies or contradictions in his statements. (Here the judgment discussed evidence and then proceeded). As presented to us in the argument, the case against the accused really turns upon whether there should be considered to be sufficient corroboration of the approver upon the question of identity of the accused, and upon a careful weighing of the matters above mentioned we are of opinion that the proof is not sufficient to exclude a reasonable doubt. Both the accused are acquitted and we direct that they be forthwith set at liberty.
6. We cannot leave this case without pointing out to the learned Judge that in some particulars his charge has laid itself open to attack in this Court. It has been described to us as dogmatic, as couched in highflown language and as calculated to prevent the jurors from performing their duty as Judges of fact. In certain passages it reads more like a judgment than a charge, and in others appears to be a downright imposing of the Judge’s opinion upon the mind of the jurors, For instance upon the question of the variations in the evidence as to the time when the attempt to bring in Harekristo was first made a difference of two months the learned Judge says:
It serves to demonstrate how confused persons of the rank and status of Santosh and Harekristo may be in respect of time.
7. Again some point was made by the defence that the two mistresses of Monohar and Santosh were not called as witnesses : the learned Judge in dealing with this does not refer to the presumption that the jury might draw if witnesses were not called who ought to have been called, but puts it to the jury in this way:
If it is true that the former were the mistresses of Santosh and Monohar and that Hiralal tolerated the visitations at his house the presumption surely is that they would be hostile to the prosecution and not likely to support any case tending to cause restriction of the liberty of the two persons.
8. Then again there are portions of the charge where the language is, to say the least, imaginative and fanciful. That appears in the opening portion of the charge and in charging the jury as tot the benefit of the doubt, the learned Judge concludes his remarks by saying:
You will notice the use of the term “reasonable.” It is possible, gentlemen, to doubt anything, the revolution of the earth around the sun or on its own axis, that life itself is nothing more than a vain chimera, or that a deity exists, but the doubt contemplated in this principle of law is one that is reasonable, that is, where definite choice after due meditation is not possible, the doubt which is akin to the conclusion arrived at in a syllogistic dilemma.
9. That is more likely to confuse the jury than to assist them, even if it was properly translated to them. The learned Judge should bear in mind that his duty is to help the jury to arrive at a proper verdict of the facts, and that with that in view it is far better to use the plainest and simplest language; also that if he does express his opinion on the facts he should do it in such a way as to make it quite clear to the jurors that he is not in any way seeking to usurp their functions or to interfere in matters the decision of which is exclusively within the competence of the jury itself. The reference is, accordingly, rejected und the appeal allowed.