EMPEROR Vs. KOMORUDDIN SHEIKH

JUDGEMENT

(1.) This is a reference made under the provisions of Section 307, Criminal P.C., by the Sessions Judge of Rajshahi. Four persons, Komoruddin Sheikh, Kadar Mandal, Majidullah Biswas and Jahir Mandal were placed on their trial upon a charge framed under Section 395, I.P.C. The story: briefly was as follows : These men and others attacked the house belonging to one Iswar Chunder Ghose on the night of 28 July last year. Iswar Ghose fired a gun injuring one of the men who died in his Court yard. The other men got away. It is said that the injured man was one Mohamed and that he named several of his accomplices. One Enaz was subsequently arrested and, immediately after his arrest, he made a confession and, upon his plea of "guilty," he was convicted by the learned Judge. He afterwards gave evidence in this case. The present accused were arrested before Enaz, and the enquiry before commitment was taken up by one Magistrate and finished by another. Then apparently Iswar Chunder Ghose was placed on his trial in regard to the shooting of the man who was shot in his court1 yard. He was discharged in January and the present case came on for trial in March. The trial occupied some days, over twenty witnesses being examined. The learned Judge, in delivering his charge which I think was extremely fair, placed before the jury all the evidence and pointed out the grave defects in the case for the prosecution. In spite of his warning the jury were unanimous in finding all the accused guilty. The learned Judge thinks that that verdict is wrong and feels unable to accept it and, in consequence, he has made this reference under Section 307, Criminal P.C.

(2.) Now, with regard to the occurrence of the dacoity, I do not think it necessary to express any opinion. It is enough to say in passing that there are many features in the story for the prosecution which give rise to considerable suspicion. The real question in the case is whether these four men were actually identified as taking part in the dacoity. I cannot but think that if more attention had been paid to this branch of the matter in the lower Court by those who represented the accused, the verdict might have been different.

(3.) Now, the evidence against the accused persons may be considered as of four kinds. First, there is the evidence of two witnesses who say that they saw some of these men going away shortly after the occurrence. The witnesses who say so are Mohesh Chunder Ghose and Panchananda Ghose. The former says that he recognized Raisuddin who was not on his trial and Jaher. The latter says he recognized Kader, Komoruddin and Enaz. Now, the difficulty about accepting this evidence is: first, that the Sub-Inspector says that those witnesses told him nothing of the kind; and, secondly, that the evidence of the other persons who gathered at the house shows that there was nothing said by those men about the recognition of the dacoits when they came to the house.