1. This appeal is on behalf of three persons, Akan Chutia, Dom Chutia and Boga Sheikh, all of whom were convicted under Section 395 I.P.C. and sentenced to five years' rigorous imprisonment each. The trial was with the help of a Jury and the verdict was unanimous. The Judge accepted the unanimous verdict and convicted the accused persons on the charge of dacoity under Section 395 I.P.C.
2. The main ground of attack against the conviction was that ten persons were tried together charged with the offence of dacoity out of whom, only three have been found guilty and the rest were acquitted. Section 391 I.P.C. requires that When five or more persons conjointly commit or attempt to commit a robbery ... every person so committing, attempting or aiding is said to commit 'dacoity' and where the number of persons taking part in the transaction is less than five, there can be no dacoity and as such, the conviction of these persons under Section 395 I.P.C. has been bad in law. In support of this contention, the learned Advocate for the appellants has relied on three decisions, they being - 'Emperor v. Ikramuddin' AIR 1917 All 173 (A); - Girdhar v. Emperor' AIR 1927 Lah 519 (B) and -'Pidda Enumudugaru v. Emperor', 11 Cri LJ 249 (Mad) (C). Of these three decisions, - 'AIR 18S7 Lah 519 (B)', is the latest though decided in 1927 and the other two cases were also discussed in that judgment. In all these cases, it was held that when five or more persons are jointly tried of an offence of dacoity and if the number of persons convicted are found to be less than five, the wiser course is to convict the accused under Section 392 I.P.C. and not under Section 395 I.P.C.
We need not go into these decisions except to say that the viewpoint is quite understandable. The proper course is for the judge to explain to the Jury while trying a case of dacoity that robbery becomes dacoity only when it is committed by five or more persons and that if the jury finds only three or four persons to be involved in the offence, they should convict them of robbery and not of dacoity, but if they are satisfied that there were other unknown persons not charged in the case who must have joined in the act so as to make up the required number of five, then of course, a verdict of guilty under Section 395 I.P.C. would be justified.
In this case, the learned Additional Assistant Sessions Judge gave no such direction. The whole of the explanation of law was found to be con-lined to the few lines as given below:
Before you can convict any of the accused persons on the charge, you will have to be satisfied on the following points:
(1) That a robbery was committed at the shop-house of Tetera at Saflul on the night of 5-7-50.
(2) That five more persons committed the robbery;
(3) That they conjointly acted and committed the crime.
There would be no dacoity unless you are satisfied that five or more persons conjointly acted and committed the robbery.
3. In my opinion, this was a very meagre explanation of the law. The Judge should take sufficient pains to explain to the jury what the implications of the law are and should not be satisfied with merely stating the legal principles or propositions but should explain them with reference to the facts in each case. Here, the learned Additional Assistant Sessions Judge has not done that. In this view also, the charge is defective.
4. There is another aspect of the case which though not seriously pressed by the learned Advocate for the appellants, strikes me as of grave consequence. It is an established principle of law that in a case of joint trial, it is an imperative necessity to keep clearly separated the evidence against each of the accused - 'Joseph Connel v. Emperor' AIR 1947 PC 186 (D) and it is desirable, if not obligatory that the Judge in summing up should marshal the evidence as it affects each individual accused and say what can be said in favour of the accused. Where, however, all the evidence was such that it affected all the accused persons equally or not at all, the omission to divide up the evidence may not be called for by the circumstances of the case and no injustice might be caused. But in a case like this, where the evidence against the accused persons differed widely as to their quality or Intensity, the case of each individual accused ought to have been separately discussed and evidence against each should have been carefully sifted, weighed and marshalled so that the Jury might get a clear impression as to the evidence against each of the accused persons separately. Mere saying that 'you are to consider the case of each accused person separately' is not enough. The purpose of summing up is lost or no justice is done to Section 297 of the Criminal Procedure Code itself if the jury is left to form a clear impression about the evidence all by themselves.
We have repeatedly stressed the importance of the necessity of discussing the evidence against each accused person separately, in a number of cases but the learned Additional Assistant Sessions Judge in this case does not seem to have paid enough attention to this principle. The jury of course, discriminated in this case amongst the accused mainly on the supposition that those who were named in the F.I.R. might have possibly been recognised with a greater degree of certainly than the rest of the persons whose names were not found in the F.I.R. There is, however, some material variation with regard to the prosecution story from the one given in the F.I.R. and if the learned Additional Assistant Sessions Judge had placed the same before the Jury, it might be that the persons named in the F.I.R. as well might have been acquitted. In the F.I.R. the story is that only five persons effected entrance into the house of Tetera and some other persons were perceived to be outside whose presence was felt by their whispers. But in the story given in the Court, ten persons are alleged to have entered the house of Tetera. This is a material discrepancy which ought to have been placed before the jury.
The learned Additional Assistant Sessions Judge says in his charge that the F.I.R. was placed before the Jury, but it does not appear what use was made of it. He does not seem to have drawn the attention of the jury to this material piece of variance in the prosecution story from the one given in the F.I.R. There are other discrepancies as well in the statements of several Of the prosecution witnesses and they had material effect upon the prosecution case. The Judge does not discharge his duty fully if he only gives a resume of the prosecution evidence. He has to discuss both the pros and cons of the evidence on record and if there be some evidence which materially helps any of the accused persons, that should be placed before the jury. For instance, Tetera himself says in his cross-examination that he told his witness Akan (P. W. 9) that among the accused, he knew accused Akan, Dungi and Boga and one Bandhu but he did not tell that witness or any other person who came at night as to who assaulted him. In case this is true, accused Dom was not recognised in course of the night and if this statement was placed before the jury, it might have favoured the accused Dom.
Tetera further says in his evidence that accused Moloka gave a slap to his wife and accused Dungi pierced her leg with a spear. If that was so, there is no reason why Dungi's name did not find a place in the F.I.R. though Dungi was known to Tetera from before. There are many such passages which ought to have been placed before the jury and they would have materially helped the accused. Mere reading out the depositions of prosecution witnesses to the jury is of no help because the jury heard them just as the Judge did, in the course of the trial. What is required is a proper summing up of the case dealing with the important details both for and against the accused persons individually. In this case, there is no such summing up and in my opinion, the judge has failed to discharge his duties properly and the entire charge is vitiated.
5. The Junior Govt. Advocate has placed before us the Supreme Court ruling reported in - 'Mushtak Hussein v. State of Bombay' : 4SCR809 , wherein it has been held that only in cases where there has been a misdirection which has occasioned a failure of justice and has misled the jury in giving its verdict, - the verdict can be interfered with and not in all cases of misdirections or non-directions in the charge. His contention is that there is no such misdirection in this case which if rectified, would have ended in the acquittal of the appellants. It is very difficult to guess the jury's mind but the normal expectation is that things which are in favour of the accused if placed before the jury, might have affected their opinion or their verdict which is against the accused persons. I have pointed out a few instances above which were not placed before the jury and if these things were duly placed, the jury might have naturally decided against the prosecution story as they had done in the case of seven other persons. At least this might have induced them to give benefit of doubt to the accused persons. We cannot, therefore, say that these misdirections are of a minor character and did not really affect the verdict.
6. I have already expressed the view that the charge has been anything but fair and the conviction cannot be consequently maintained. We have now to consider whether the matter should go back for retrial or we should quash the conviction and acquit the appellants, I have already pointed out that the conviction seems to be based mainly on the ground that these three persons who are appellants before us, were named in the F.I.R. -lodged by P. W. 1, father-in-law of Tetera in whose house the dacoity took place. That there was a dacoity or robbery nobody seriously disputes. But the fact remains that nothing incriminating was found with any of the accused persons though some of the accused were put under arrest the day following the occurrence. It further appears from the deposition of Tetera that he knew all the accused persons from before and they used to go to his shop frequently to purchase goods. Apart from the discrepancy in the matter of the names given in the F.I.R., he gave no descriptions of other persons who are not named in the F.I.R. nor the names of the villages from which they came. Akan and Dungi suggested existence of previous grudge with the complainant - Tetera but Tetera denied it.
He also claims to be acquainted with Dina for a fairly long time and they used to call each other Bandhu (a friend) and Kamaruddin states that Bandhu's name was disclosed to him as one of the dacoits, but he forgot to mention it. Accused Boga Sheikh also suggested that there was some bad blood between him and Tetera but Boga appears to be a relation of Tetera and Tetera's wife, Putola, stated in her evidence that she talked to Boga during the course of the dacoity. But Bhabindra to whose house Putola went after the occurrence says that Tetera's wife did not tell him that she had any talk with Boga. The F.I.R. does not disclose the names or descriptions of the persons who assaulted Tetera and his wife. The subsequent story of recognition of the persons while assaulting the inmates, therefore, is a clear innovation. From the way the prosecution story has been developed, it leads me to suspect that there has been a purposeful improvement in the story and that discredits the veracity of the prosecution witnesses. Taking everything into consideration, I do not think any useful purpose would be served by sending the case back for retrial and I would rather favour the acquittal of the appellants who had been in jail for more than a year.
The result is that the appeal is allowed, conviction set aside and the accused persons should be set at liberty forthwith.
Ram Labhaya, J.
7. I agree.