(1.) THIS is a reference under Section 307, Criminal Procedure Code from the court of the Assistant Sessions Judge, Upper Assam Districts. The case has been referred to this Court under the following circumstances.: -
(2.) SEVEN persons namely Dharmeswar Dutta, Durgeswar Dutta, Baneswar Dutta, Hen -dul alias Santaram Saikia, Banshidhar Dutta, Dimbeswar Saikia and Lambadhar Saikia were committed to the Court of Session for being tried under Sections 304/149, Indian Penal Code. They were tried with the aid of a jury. The jury found all not guilty under Section 304 read with Section 149 and the learned Judge agreeing with this verdict has acquitted all the accused of this charge. The jury further returned a unanimous verdict of guilty under Section 304, Part II, Indian Penal Code against Durgeswar, Baneswar and Lambadhar. No charges were framed against these accused under this section. The learned Judge has not been able to agree with this part of the jury's verdict. He thinks that conviction of these accused in the circumstances of this case is possible only under Section 326, Indian Penal Code. In view of this difference of opinion he has referred the case of the three accused to this Court for disposal under Section 307, Criminal Procedure Code.
(3.) THE learned Government Advocate has supported the view which has found favour with the learned Assistant Sessions Judge, He has urged for conviction of the accused under Section 326 as such a course would not be illegal; nor would it occasion any prejudice to the nerved On fonts he thinks that the conviction under Section 326 would be most appropriate.