JUDGMENT Jenkins, C.J. - The charge against the accused Sheikh Neamatulla is that he murdered a woman named Lengri alias Radhia Ahirin and thereby committed an offence under sec. 302 of the Indian Penal Code. The trial was before a jury and their verdict was that they were in great doubt as to the guilt of the accused and therefore unanimously gave him the benefit of the doubt and found him not guilty. The learned Additional Sessions Judge of the 24-Pergunnahs disagreed with the verdict of the jurors and being clearly of opinion that it was necessary for the ends of justice to submit the case to the High Court he did submit the case with which we are now dealing. Our duties are de" fined by sec. 307 of the Criminal Procedure Code, by the third clause of which it is enacted that " in dealing with the case so submitted, the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence, and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it; and if it convicts him may pass such sentence as might have been passed by the Court of Session." The only charge in this case is one of murder constituting an offence under sec. 302. 2. The story placed for the prosecution is that on the 23rd of December last, the woman was murdered in an empty house known as 115, Russa Road South, that she was wearing ornaments at the time, that those ornaments were taken away and that they were taken away by the accused and finally that it was the accused who murdered her. It is further said by the prosecution that the accused was seen leaving this empty house 115, Russa Road South, by Nunnia Khan and that the accused admitted to him and to Mohammad Ashraf, both of them being tram-drivers like himself, that he had committed an offence. It is further said by the prosecution that the accused was seen leaving this empty house 115, Russa Road South, by Nunnia Khan and that the accused admitted to him and to Mohammad Ashraf, both of them being tram-drivers like himself, that he had committed an offence. Then, putting the matter shortly, it is said that these two men, Nunnia and Ashraf, in effect bargained for their silence and that there was an arrangement between them under which the accused was to pay these two men Rs. 50 as the price of their silence and that in order to obtain Rs. 50, all three went to the accused's house which lies a mile or so to the south of the place where the woman is said to have been murdered. The Rs. 50 was not forthcoming according to the prosecution story and so the two men, Nunnia and Ashraf left the accused's house and came to the Tollygunj thana, which is within a short distance of the accused's house, some time about 11 o'clock. There they informed the Sub-Inspector Golam Hyder of what had happened. Thereupon the Police officer in company with them went to the house of the accused, found him there and arrested him, and on search discovered in the room occupied by him jewellery said to have belonged to the deceased, bearing traces of blood and also clothes on which there were blood-stains. From there the Police, the two informers and the accused ultimately went to 115, Russa Road South, and there they found that a woman had been murdered-the woman found by them was Lengri alias Radhia Ahirin, with the causing of whose death the accused now stands charged. 3. The story told by Nunnia and Ashraf as to how they came to be at or in the vicinity of 115, Russa Road South, has been disbelieved by the jury, and I do not think that it has been believed by the Judge. The learned Counsel who appeared for the Crown before us has not pressed upon us the truth of that story. But his case is that when that is set aside, when the version as to how Nunnia came to be in the immediate proximity of the house from which, as he says, he saw the accused emerge, is eliminated, the rest of the story told by these two men was substantially true. But his case is that when that is set aside, when the version as to how Nunnia came to be in the immediate proximity of the house from which, as he says, he saw the accused emerge, is eliminated, the rest of the story told by these two men was substantially true. We have to bear in mind that this case was tried before a jury and that the jury arrived at an unanimous verdict. Any Court would be slow to interfere with such a verdict unless a clear case is made out. It has been brought to our notice, too, that in this case the jury had the advantage of an inspection for what that may be worth. It is therefore urged upon us that we should be particularly careful not to interfere with what the jury has said. But it is not to the opinion of the jury alone that we have to give due weight; we have also to give weight, according to the terms of the section, to the opinion of the Sessions Judge. 4. What appears to me to be the governing factor in this case is a remarkable and material omission from the charge of the learned Judge. I think it is established beyond question that silver ornaments with blood on them were found in the room occupied by the accused as described by the Sub-Inspec or Golam Hyder and were in his possession. The evidence moreover to my mind establishes that those articles belonged to the murdered woman. Not only is there general evidence on this point from Latta Pershad Lala, the silversmith, but there is a definite statement substantiated by documentary proof that the necklace or haikal was given to the deceased a few days before the event by the Police constable, Nirmal Goala, so that we have recent possession of articles belonging to the deceased and traces of blood on these articles as also in articles of clothing one of which was actually being worn by the accused when he was arrested by the Police. It is true that the chemical analyst was only able to speak of this as mammalian blood, and it is to be regretted that the more accurate test with which we are now farniliar whereby different sorts of mammalian blood can be differentiated and in particular traces of human blood can be recognized, was not utilized. It is true that the chemical analyst was only able to speak of this as mammalian blood, and it is to be regretted that the more accurate test with which we are now farniliar whereby different sorts of mammalian blood can be differentiated and in particular traces of human blood can be recognized, was not utilized. These are indications of guilt on which Courts constantly rely, as for instance in the case of the Queen v. White 2 Coxe's Criminal Cases 192 (1847). Sec. 114 of the Evidence Act provides that "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." By way of illustration to that section it is said that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The matter does not rest there, because it is a matter of common procedure to utilize evidence of this kind and the presumption such as this in connection not only with theft and receipt of stolen goods but more aggravated offences : and it is stated in Wills on Circumstantial Evidence that the possession of stolen goods recently after the loss of them, may be indicative not merely of the offence of larceny, or of receiving with guilty knowledge, but of any other more aggravated crime which has been connected with theft. This particular fact of presumption commonly forms also a material element of evidence in cases of murder; which special application of it has often been emphatically recognized." 5. The charge of the learned Judge to the jury has been read to us and in that charge there is no guidance on this point, there is no direction pointing out to the jury that the possession in this case if believed it is difficult to suppose that it was disbelieved-is a fact from which the Court may presume not merely theft or receipt of stolen property but the more aggravated offence with which the accused in this case is charged. I regard this as a serious omission detracting materially from the value of the verdict and opinion of the jurors to which under sec. 307 we are to give due weight. It is especially important that a Judge should point out a presumption of this kind, because jurors are often reluctant to act on that which we commonly know as circumstantial evidence. I am unable to estimate what may have been the effect of this omission from the charge of the learned Judge to the jury, and so it is that I do not feel the same hesitation that I might otherwise have done in not paying as great attention as I otherwise should to the conclusion at which the jurors have arrived in this case. 6. We have had the advantage of a full and complete argument on both sides, and the case for the accused has been placed before us with commendable zeal, care and skill by the learned Counsel, Mr. Akbari, and the conclusion to which I come is, that on the whole evidence, coupled with the facts to which I have drawn attention, it is shown beyond reasonable doubt that the accused Neamatulla is guilty of the murder of this unfortunate woman. 7. In the circumstance the only course we can take is to find Neamatulla guilty of the offence with which he is charged, that is the offence of murder under sec. 302. The only question is what the sentence is that we should pass on the accused. The conclusion to which we come is that we cannot wholly disregard the effect that the evidence had on the whole body of the jurors : and, this appears to us to be sufficient reason for not passing upon him the sentence fo death. We therefore pass upon him the sentence of transportation for life.