- (1.) THIS is a reference by the Assistant Sessions Judge of Faizabad under Section 307, Criminal P. C. Seven persons were put on trial before him under Section 435, Penal Code. The trial was by a jury. The jury returned a unanimous verdict of guilty. The learned Assistant Sessions Judge disagreed with that verdict and has made the reference on the ground that the verdict of the jury was perverse and was not sustainable upon the evidence that was produced in the case.
(2.) THE case for the prosecution was briefly this : Bhagwati Prasad Singh, a resident of village pratappur, carried on fairly extensive cultivation in another village Masodha where he has his own "chhawni". The accused are his 'pattidars' who have been continuously litigating with him for several years. On the night of the 16th and 17th of April, 1950, while Bhagwati Prasad Singh had gone to another village to attend the 'tilak' ceremony of his relation, the accused at about midnight entered his 'khalyan' in village Masodha where 14 piles of wheat and other grain were stored and his men Ram Bharose, Bam Dhani and Muttur were keeping watch. They set fire to those piles intending to cause damage to the grain. Ram Bharose got up and raised an alarm which woke up Ram Dhani and Mattur who also joined in the alarm. Subsequently other people came to the place. It was alleged that the accused standing outside the boundary wall of the "chhawni" threatened those who wanted to extinguish the fire with dire consequences. The result was that almost all the piles of grain were completely burnt down, causing a loss of about Rs. 3,000/ -. It was further alleged that the accused ran away when people of village Navada turned up. The complainant returned to Jalal-pur next day where he received information about this arson. He went to the spot and found that almost his entire 'khalyan' had been burnt down. He then lodged the first information report at police station jalalpur on 17-4-1951, at 7 P. M.
(3.) THE prosecution examined certain witnesses in the case inclusive of Ehagwati Prasad Singh, ram Bharose, Muttur and Chattarpal. The learned Sessions Judge discussed their evidence in the charge which he laid before the jury and wrongly specified that only three witnesses, namely, ram Bharose, Muttur and Chattarpal "deposed that the accused actually set fire to the 'khalyan'. " we have gone through the evidence of these witnesses and we have not been able to find anywhere in their testimony that they deposed that the accused actually set fire to the 'khalyan'. " on the contrary what had been stated by them was that Ram Bharose who was the earliest to rise could not see how the fire was set, and the others who woke up later on only saw the accused persons going out from the 'khalyan' and standing out and threatening those who came there that they would be dealt with severely if they helped in extinguishing the fire. This evidence was not laid in its true perspective by the learned Sessions Judge before the jury in drawing their attention to the fact that it was only a circumstantial piece of evidence. The Judge did not also direct the attention of the jury to the fact as to what is required of circumstantial evidence in order to establish a charge against an accused beyond any shadow of doubt. In fact, we find that the charge to the jury was entirely one-sided to which there was a clear misdirection as well as a non-direction. In the concluding portion of the charge the learned Assistant Sessions judge drew the attention of the jury to the delay in the lodging 01 the first information report, to the fact that the prosecution had not examined a single independent witness, to the fact that it was a dark night and any miscreant who sets fire will in the normal course run away, and also to the fact that Bhagwati Singh had made repeated and futile attempts to get the accused convicted, and that it would not, therefore, be safe to convict the accused unless there was clear, convincing and independent evidence in the case. But, as we have already noticed, the learned Assistant sessions Judge failed to mention in the charge that the whole case rested upon the circumstantial evidence, and he also erred in specifying in the charge that Ram Bharose, Muttur and Ghattarpal deposed that "the accused actually set fire to the 'khalyan'. " In our judgment, the verdict of the jury was considerably influenced by this mis-direction and non-direction.;