Ram Labhaya, J.
1. Hira Barua and Surendra Nath Bhuyan, appellants were found guilty and convicted under Section 395, I.P.C. They were sentenced each to rigorous imprisonment for five years. Bholow Saikia was also tried jointly with them. He was given the benefit of doubt. The order of the Assistant Sessions Judge, Upper Assam Districts convicting the appellants was passed on a unanimous verdict of guilty returned by the jury.
2. The alleged dacoity is said to have taken place on the night following 16-3-1953 in the house of Kanakeshwar Bardoloi of Jagduar Sonari village within the limits of Teok police station. There was a 'Namgoa' festival in the house of Kanakeswar that evening. His son Nityananda alias Bhaba left for Jorhat before the Namgoa was over. The inmates of the house of Kanakeswar and two guests retired after the Namgoa was over a little before midnight.
One guest a Gossain was there for the purpose of Namgoa. He slept in that part of the house which was used for Kirtan. This was called Choraghar. Kanakeswar had another guest that evening, one Tangali Hazarika by name who came to take his ornaments from Kanakeswar who is a goldsmith by profession. Kanakeswar himself was in the portico of Chorghar. His daughter-in-law was in the Moral Ghar with some children.
Hira and Manik were in another part of the Moralghar. Manik is a nephew of Kanakeswar. The wife of Kanakeswar was in the Borghar, the middle room that was used as a dining hall and it was in that room that there was a 'Chorang'. In that Chorang was Sarumai, daughter of Kanakeswar. Makhani, a niece of Kanakeswar was also there. It was at about 1-30 a.m. that the house was raided. It was broken open. The dacoits entered through the Choraghar. Its door was broken open by a cart wheel.
It is not necessary to describe in detail the entire occurrence as it took place after the dacoits forced their way in the house in view of the order we propose to make. So far as the two appellants are concerned the evidence is mainly of identification. Hira was identified by prosecution witnesses Nos. 4, 5 and 8 and Surendra was identified by prosecution witnesses 4 and 5. The identification parade was held on 16-5-1953 at Jorhat.
3. Shortly stated Surabala, daughter of Kanakeswar deposed at the trial that she was in Chor Chang with Makhani. They were pushed out of the room by the dacoits. She explained that at first one dacoit entered the Chor Chang by cutting the door and removing the cross bar; another followed and they broke open the boxes and the iron chest and removed the contents. Two dacoits kept guard on the door and another dacoit kept guard on them in the middle room.
Makhani also deposed that at first one dacoit entered the Chorchang and alter she and Sura were being pushed out, another dacoit entered that room and she saw the breaking open of the boxes by them, Manik was assaulted by the dacoits. He was on his bed in the Moral Ghar. It is these three witnesses on whose identification the prosecution case in regard to the participation of the appellants in the dacoity rests. In the case of Surendra there is the additional evidence of recovery of certain ornaments from one room of the house in which he lives with his mother.
4. The written report was made by Nityananda, son of Kanakeswar on 17-3-1953 at about 9-30 a.m. Tarakeswar Das, officer-in-charge, Teok Police Station received the report and left for the scene of occurrence immediately afterwards. On his arrival in the house of Kanakeswar a list of the stolen property was given to him. He then prepared a sketch map, seized some broken boxes and other articles. Exhibits I to V are the broken boxes. Exhibits XXII(1) to XXII(S) are the broken hinges of the boxes. Exhibits XV is the cart wheel found inside the house by means of which the door of the house was broken open.
Exhibit XVI is the door of the Chor Chang. An axe Ex. XVIII was found in the Chorchang. There was another axe Ex. XIX in the middle room. All these were seized. The offlcer-in-charge also found injuries on the persons of Tengali, Kanakeswar, Surabala, Hira and Padum. All these were sent to the doctor for medical examination. He examined the witnesses that very day. On 12th April he searched the house of the accused. Deposing about this search the officer-in-charge stated that the search was conducted in connection with another dacoity.
Begai in whose house the dacoity had occurred identified some articles recovered from the house of Surendra. Articles which he did not identify were kept by him on suspicion. Later these were identified by Kanakeswar. These articles are described in his statement. He stated that item No. 10, a big Thuria was found in bamboo Chunga in the bed room of Surendra and item No. 19 was also found in his bed room. Prosecution witnesses Nos. 14 and 15 are witnesses of the search.
Prosecution witness No. 14 (Mahikanta) deposed that Exs. VI, VII and VIII were recovered from the place of Surendra from a trunk. The box was opened with the key which was obtained from his mother. He could not say who used to sleep in the room from which the box in question was recovered. In regard.'to item No. 12, a dugdugi Ex. VIII and the Keru Ex. VII he deposed that they were not found from the box of the mother of accused Surendra.
Prosecution witness 15 (Abani Bhusan Chaliha) deposed that Surendra used to sleep in one room and his mother occupied another. The house (room) in which Surcn resided was searched. Nothing was found. The articles seized were recovered from the other house (room). He could not say from place Ex. VII the Keru was recovered, nor could he say wherefrom the Dugdugi Ex. VIII and Thuria Ex. VI were recovered.
5. Bholow (who has been acquitted) and Hira were arrested on 22nd March and Surandra was arrested on 14-4-1953, two days after the search of his house.
6. The identification parade was held about a month after on 16-5-1953.
7. The learned Counsel for the appellants has argued that the charge in this case bristles with misdirections. He has pointed out that important evidence bearing on the question of identification which should have been placed before the jury was not placed at all and therefore there has been no proper trial of the case. If the evidence had been discussed, there obviously was a possibility of a verdict different from the one that has been arrived at. The circumstances to which he has made a reference appear all in the statement of P. W. 16 Tarakeswar Das, offlcer-in-charge.
In cross examination he stated that Manik (P. W. 8) told him that he recognized Hira Barua and that he charged him by name. Makhani (P. W. 5) stated that she recognized Hira Barua of Goalgoan. She also preferred a charge against Hira by name, Surabala (P. W. 4) stated that the culprits whom she saw had their faces covered with masks, which the oflicer-in-charge understood to be covered with handkerchiefs. According to the officer-in-charge Surabala did not mention the name of Hira Barua. But she gave description of a person which tallied with that of Hira Barua. Hira Barua had not been arrested at that time. The statement was made on 17-3-1953.
In the diary however the statement recorded was that Surabala recognized Hira Barua. The statement made at the trial by the offlcer-in-charge was noted in the diary. It was not recorded there that Surabala had not mentioned the name of Hira. accused.
8. Hira P. W. told the officer-in-charge that all the culprits had their faces covered with masks. and that he could not recognize any.
9. He further stated that Surabala informed him that the man who asked her for the key wore a Khaki half pant, a green coloured shirt and a Jwahar coat. He had a mask on his face. She also told him that the man at the door was of dark colour, medium height and had a half shirt and a Dhuti. This statement points to Surendra being the person with the mask on the face.
10. It is also in evidence that Hira accused lives at a distance of about a mile or so from the village of Kanakeswar.
11. It is argued that the statement of the officer-in-charge by which statements made to the police by prosecution witnesses were proved was not at all placed before the jury. The fact that Hira was named by the two witnesses Manik and Makhani and that according to the recorded statement even Surabala mentioned his name were not referred to in the course of summing up. It is also urged that the fact that Hira stated that the culprits had masks was not only a relevant circumstance but was important inasmuch as it indicated the difficulty of identification.
12. The facts reproduced above were not placed before the jury. The learned judge in his charge gave merely the outline of the statements of these witnesses. They were cross-examined on their previous statements made to the police. All that the learned judge brought out when dealing with the cases of the appellants is that Surabala denied to have charged Hira Barua. A similar statement was made by Makhani. It was in the light of statements made to the police that the jury had to consider whether they could rely on the statements of these witnesses made at the trial.
Facts or circumstances elicited from the offficer-in-charge were not placed in their proper perspective before the jury and it cannot be said that this charge was either fair or adequate. What the learned judge had to do was to bring out the contradictions between the statements to police and the statements of witnesses at the trial and to ask the jury whether in view of these contradictions they could return a verdict of guilty on evidence given in the trial. This he has failed to do. In view of these obvious omissions the learned Government Advocate did not try to support the verdict.
There are errors and omissions in the charge and it cannot be said that the accused in the circumstances of the case had a fair trial. The verdict and the order of conviction therefore cannot stand, for, the omissions do leave the possibility of a verdict having been given which otherwise may have been avoided.
13. The question therefore in the case is whether we should dispose of the case on a consideration of the whole of the evidence or send back the case for a de novo trial.
14. So far as the prosecution case in regard to the commission of the dacoity is concerned, the learned Counsel for the appellants has not pointed out any misdirection. There is apart from the direct evidence, a wealth of circumstantial evidence bearing on the point. Mr. Medhi has supported the conviction on the merits. He contends that the identification by the two girls could form a valid basis for conviction particularly in the case of Surendra from whose house some stolen property was recovered. He has referred to the circumstance that no adult inmate of the house identified any of the accused.
The two girls (prosecution witnesses Nos. 4 and 5) and Manik, a nephew (also a boy) succeeded in identifying the two appellants. The identification parade had provided a real test. If the witnesses had an opportunity of seeing the accused before file parade, the adults had better chances of identifying. The learned Counsel for the appellants urged that in view of the statements made to the police, evidence of identification given at the trial is worthless. We express no opinion at all on the evidence produced at the trial.
We think in the circumstances of this case it is appropriate that there should be a de novo trial. The accused are entitled to a trial by jury, We also consider that the interest of justice would be best served if the accused are not deprived of a trial by jury by our substituting our own decision on evidence in place of the jury. In these circumstances without making any comment on evidence adduced in this case we set aside the verdict and the order of conviction and order that the case shall go back to the sessions court for a trial de nevo.
Sarjoo Prosad, C.J.
15. I agree.