JUDGMENT 1. We have before us an appeal and a Reference under the provisions of sec. 374, Cr. P.C. The six Appellants were tried by the Additional Sessions judge of the Twenty-four Parganahs with the aid of a jury upon charges under sec. 120B read with sec. 302 and sec. 302 read with sec. 34 of the Indian Penal Code. The jury returned a unanimous verdict of guilty on both the charges and the learned Judge agreeing with and accepting that verdict has convicted the six men under those sections and sentenced them to death. The facts disclosed by the evidence are that a man named Rahaman, his wife and three of their children were all murdered on the night of the 13th June last. There was no eye-witness to the occurrence. The case for the prosecution rests for the most part on the evidence of Rahaman's surviving son Mustakim--a boy of about 16 years of age who states that, at about 4 o'clock in the morning:, he rose from his bed which was in the same house as his father Rahaman's and proceeded outside to answer a call of nature. The moon at that time was getting low. It was a hot night and the boy says that he was strolling about when suddenly he heard his mother's voice crying "babago," that he returned into the compound of his house through what is called the khirki door and saw the six Appellants standing there panting and that one of them said "sarbanash hayeeache" meaning all is lost, "one of the salas has escaped." He says further that, just at that moment, the Appellant Panchu saw him and seized him by his cloth and as he tried to get away, he found the Appellant Rajaulla in front of him trying to cut him off, that he left his cloth in the hands of Panchu and leaped into a tank close by and that he then raised a cry which attracted the attention of Nurjan Bibi--Rahaman's sister who lives in a hut south of Rahaman's bari. The story then is that Nurjan Bibi came there with her daughter Khosjan. At the same time, one Meheruddi who lives on the other side of the tank about 100 yards away attracted by Mustakim's cries arrived and various other people soon after came to the scene of occurrence. The story then is that Nurjan Bibi came there with her daughter Khosjan. At the same time, one Meheruddi who lives on the other side of the tank about 100 yards away attracted by Mustakim's cries arrived and various other people soon after came to the scene of occurrence. It is said that Mustakim immediately told all these persons who the six men whom he had seen in the courtyard of their bari were and he related the story to Atiar Rahaman--Vice-President of the Union Board--who came a little later. Meheruddi, the uncle-in-law of Mustakim, proceeded to the thana which is seven miles away just after dawn and the first information was recorded there at 8-30 A.M. Prior to the departure of Meheruddi to the thana, the Daffader had arrested the accused Kalu, Rajaullah and Panchu. Raja-ullah and Panchu were sent on the following day 10 the Head Quarter station at Barasat where their confessions Were recorded by a Deputy Magistrate. Kalu who escaped was re-arrested on the 18th and, on the same day, he also confessed to the same Deputy Magistrate. 2. The prosecution case was that the motive for the crime was a dispute with regard to certain property which devolved on Nurjan Bibi and to which Panchu and his friends laid a claim. It is said that an arbitration was in progress and that Atiar Rahaman at the instance of Rahaman--the deceased--had fixed a meeting whore the matters were to come up for discussion; but that, at the time the murder took place, nothing had been done. 3. The defence raised was, first, that at the time of the night when the murder is said to have taken place, it was impossible for any one to distinguish-the features of the persons who were in the courtyard and so it was a case of mistaken identity at the best. Alternatively, it was pleaded that the case was false, that the real culprits were never found and that the Appellants were implicated at the instance of Atiar Rahaman. 4. This case has given us a great deal of difficulty and anxiety. We have, on one hand, an unimpeachable charge by the learned Judge in which every thing that could be said in favour of the accused has been said; in which no point of importance has been omitted and which is a model of what a charge should be. This case has given us a great deal of difficulty and anxiety. We have, on one hand, an unimpeachable charge by the learned Judge in which every thing that could be said in favour of the accused has been said; in which no point of importance has been omitted and which is a model of what a charge should be. The jury evidently felt no doubt in their minds as to their verdict. On the other hand, we have certain circumstances which lead us to feel a real apprehension as to the safety of this conviction. There is, as has already been stated, no eye-witness to the occurrence. That, in itself, would not ordinarily prove fatal to the prosecution case. We feel, however, that there is a real doubt as to she identification by the boy Mustakim. The jury evidently believed what he said. But at the same time, the way the story has been told leaves us under the impression that the conduct of the accused, as he describes it, is inconsistent with ordinary human experience. We cannot believe, for instance, that, if the accused persons had committed a series of murders of so attrocious a character as those in the present case, they would have incurred the risk of recognition by remaining in the yard a moment longer than was necessary. The instinct of self-preservation would have counselled immediate flight. That brings us to the evidence of Nurjan Bibi and her daughter. We cannot believe, knowing the natural timidity of Bengali women in the face of danger, that once they had seen the blood flowing from the two verandahs they would have had the nerve to stay and confront the murderers, some of whom, if Mustakim is to be believed, still had weapons in their hands. The incident to which Nurjan refers, namely, that the Appellant Rajaulla tame to her and begged her not to disclose his name appears, to our minds, to be an obvious falsehood and wholly incredible. 5. Then, when we come to the confessions made by some of the accused persons, retracted as they had been, inspiration and manipulation seem to us to be apparent. To take the case of Rajaullah first, the following passage occurs after the statement as to how the murder was committed. 5. Then, when we come to the confessions made by some of the accused persons, retracted as they had been, inspiration and manipulation seem to us to be apparent. To take the case of Rajaullah first, the following passage occurs after the statement as to how the murder was committed. This accused stated: " Then Mustakim who had gone somewhere, probably to answer a call of nature, returned after doing so, whereupon Panchu Mandal chased hire with a knife to assault him.' How could this accused possibly know why Mustakim had left his bed? It looks as if that has been directry inspired in order to bring this confessional statement into line with the evidence of Mustakim. Then the last sentence of his confession is "we then ran away towards our respective houses. Then Meheruddi Mandal and Charan Pramanik and many others came." Is it likely that a murderer would actually wait to see who the witnesses were? That again seems to us to be incredible and to have been inspired in order to bring it into line with the evidence of the prosecution witnesses. Turning then to the confession of the appellant Panchu, we find that the concluding portion of his statement is " He," that is Mustakim," ran into the tank and began to raise a hue and cry. First of all, my father-in-law's sister," that is, Nurjan Bibi, "came running; then came Meheruddi and Charan Napit. They ran away. Rajaullah and myself were standing." There again, this is not what a man who has committed a brutal murder would do. He would not court recognition by remaining on the spot but would fly for his life. It seems to us to be incredible. Then we come to the confession of Kalu Mandal. It is self-exculpatory. He merely says that he and Babujan were standing and took no part in the crime Then comes the extraordinary part in his confession which gives the whole account of the quarrel which led to the commission of the offence. Reading it as a whole it leaves us under the impression that it was inspired. We cannot say how far these confessions were accepted by the jury. Reading it as a whole it leaves us under the impression that it was inspired. We cannot say how far these confessions were accepted by the jury. But we feel, in dealing with the confessions that we cannot rely upon them as being genuine confessions in the sense that they were made by people who were confessing to an offence and being retracted as being satisfactory evidence even against the persons who made them. That being so, we are left with the evidence of Mustakim and Mustakim alone. After most anxious consideration, we feel it would be utterly unsafe to accept his evidence unsupported by other trustworthy evidence as conclusive proof that the present Appellants committed the murders. 6. We may note in passing another very significant fact. The evidence discloses the presence of a large number of wounds on the body of Azizar Bibi which indicate that she was not murdered until after a several struggle in the course of which she received many injuries in her hands, wrists and arms and the inevitable inference to be drawn from that must be that the death struggle must have taken a very considerable time. If that is so, Mustakim's evidence that he was out-side for a very snort time cannot be true. A struggle like this could not have taken a very short time and it seems almost incredible that, in this brief interval these five people could have been murdered in the way as the medical evidence shows they were. We think, therefore, upon a full consideration of the facts, that we should not be justified in accepting the verdict of the jury as regards these six Appellants. We must accordingly refuse to accept the reference and direct that the appeal be allowed and the Appellants be acquitted and set at liberty.