P.V.B. Rao, J.
1. This appeal is filed against the conviction and sentence passed on the appellant by the judgment of Shri A. Misra, Additional Sessions Judge, Cuttack, dated the 23rd March 1956.
2. The judgment of conviction was passed by the learned Additional Sessions Judge after accepting the unanimous verdict of the jury that the appellant was guilty of robbery punishable under Section 394, I, P. C. The prosecution case, as disclosed in the evidence, is briefly as follows. Some 3 or 4 days-prior to the date of occurrence (10-2-55), the appellant along with three others visited Jndupur, the village of Banamali Sahu, the victim.
The appellant is stated to have purchased some Mudi from the shop of Banamali Sahu and during; the conversation mooted the proposal of giving his unmarried daughter in marriage to Banamali's son who was at Calcutta, In the course of the said conversation, his companions left the place, but the appellant stayed on in Banamali's house on account of the marriage negotiations. The appellant persuaded Banamali (P.W. 7) to agree to meet certain-expenses in connection with the marriage and accompany him to his village for bringing the girl-and get the marriage performed. P.W. 7 in pursuance of those negotiations left the village along with the appellant carrying with him Rs. 60/- or Rs. 70/-and a new Saree.
They came to Jagatpur by bus and reached Bhubaneswar on that day by train. Next morning they left Bhubaneswar for Khurda Road on their way to the village of the appellant and got into a bus in the evening proceeding in the direction of Banki. It is stated that the appellant took Rs. 10/-from Banamali and was meeting the travelling expenses from Bhubaneswar onwards from that amount and also purchased another piece of Saree at. Khurda. The appellant made P.W. 7 set down from-the bus near about Diniari stating that his village was at a short distance from that place which is to be covered by foot.
It was about 10 P.M. by that time and P.W. 7, followed the appellant through the rasta across the fields. When they reached a dry Nala which was an isolated place, it appears that the appellant threatened to kill P.W.7, assaulted him with the stick (M. O. IV) and stones causing bleeding injuries on the head and other parts of the body. Out of fear P.W. 7 made over the Ganjia containing the cash and in that process the coins fell on the ground.
The appellant engaged himself in gathering the coins throwing away the stick which P.W. 7 took and escaped. P.W. 7 found the place deserted, climbed up a jackfruit tree and remained there concealed for the whole night. In the morning he saw Diga Majhi (P.W. 8) who had come to answer call of nature and told him that he was robbed and assaulted, and asked him to show him the rasta. P.W. 8 showed him the way to Banki on which P.W. 7 proceeded and reached the hospital where he was admitted by P.W. 1, the Doctor and given treatment.
P.W. 1 sent a report (Ex. 2) to the police about the injured. The Assistant Sub Inspector (P.W. 12) came to the hospital, recorded the First Information Beport (Ex. 5) and arrested the appellant.
3. The appellant pleaded not guilty and stated that he brought one Saree (M. O. III) from Calcutta and purchased another Saree (M. O. II) at Jatni.
4. Banamali (P.W. 7), the victim is the only eye-witness to the occurrence. In his evidence he stated generally about the prosecution case andwith regard to the actual occurrence, his evidence is to the effect that when they were going to the village of the appellant on foot after getting down from the bus, the appellant took the stick which P.W. 7 was carrying; that when they came to a tope after some distance, the appellant asked him to proceed through the tope, that when they reached a dry Nala, the appellant asked him to halt saying that there was no habitation that side and none would hear if he cried out and he would end his life there, that the appellant gave him some blows with the stick (M. O. IV) and demanded the money he was carrying, that the appellant held a stone and threatened him, that P.W. 7 had Rs. 50/- with him then and he was making it over to the appellant when the coins slipped down on the ground, and that the appellant collected the same.
P.W. 8 stated that the next morning the victim asked him to show the way to Banki which he did. It may be noted that P.W. 7 did not state to P.W. 8 on the next morning that the appellant beat him and he did not also state the reason for the same. It may also be noted that in Ext. 2, the report of the Medical Officer of Banki, the name of the assailant was not mentioned.
It is simply stated in Ext. 2 that one Banamali Sahu of Indupur was admitted into the Hospital that day at 9 A.M. for the treatment of bleeding head injuries alleged to have been caused by assault with lathi and stone. P.W. 7 also stated that it was only 12 days after his admission into the hospital that he wrote a letter to his house and that he did not write any letter to his son from the hospital. The case disclosed in the First Information Report by P.W. 7 is to the effect that it was he who first began the conversation with the appellant with regard to the negotiation of marriage proposal of his son when the latter stated that he had a daughter.
This version is quite at variance with what he deposed before the Court where he stated that it was the appellant who first negotiated and gave out the proposal of giving his daughter in marriage to the son of P.W. 7.
5. P.Ws. 2 and 3 are co-villagers of P.W. 7, who deposed about the visit of the appellant to Indupur and the manner in which a marriage proposal was mooted and how the appellant and Banamali left the village. Their evidence also was to the effect that it was the appellant who first proposed the marriage alliance of his daughter with Banamali's son. P.W. 3 also stated that Banamali told him that the appellant had a daughter and was proposing to give her in marriage to his son.
The evidence of these two witnesses is clearly contrary to what was stated by P.W. 7 in his information to the police officer which was the First Information Report. P.W. 4 is a conductor of Motor service who spoke to the travelling of the appellant and P.W. 7 together. P.W. 5 simply stated that he saw the appellant at the Howrah station with a platform ticket and that the appellant came along with him in the mail and got down at the Cuttack Railway Station. P.W. 6 is the Magistrate who held the identification parade.
P.Ws. 9 and 10 are co-villagers of the appellant who is a resident of Ragadi in Banki Police Station. Their evidence is not material to the case. P.W. 11 is the seizure witness when the house ofthe appellant was searched and from an earthen pot two Sarees in one of which some change, one 8 anna bit and two 4 anna bits were recovered. P.Ws. 12 and 13 are the Investigation Officers.
6. The learned counsel for the appellant contends that the charge made by the learned Additional Sessions Judge to the jury is vague, inadequate and is full of misdirections and non-directions amounting to misdirections. He also contends that the verdict of the Jury is perverse on the facts and evidence in the case.
7. The learned Additional Sessions Judge, after stating briefly the facts of the prosecution case, proceeded to tell the Jury what the law was with regard to the charge of which the appellant was tried. In explaining the law to the Jury, he simply stated the definition of 'robbery'. What all he stated was that in all cases of robbery there must be either theft or extortion. Then he explained what 'theft' was and what 'extortion' was and also explained when under Section 390, I. P. C. theft or extortion would amount to robbery as laid down in the section. He closed the charge to the Jury on the question of law after stating that Sections 394 and 397, I. P. G. punish aggravated forms of robbery. In my opinion, this is not an adequate summing up of the law on the point. The explanation of the law is drastically meagre. The Judge in his summing, up should not only explain the law, but note the evidence and explain how the Jury should apply the law to the particular case indicating the points to be considered. In the particular case the evidence discloses a case of extortion amounting to robbery. The learned Judge in his summing up not only misdirected the Jury with regard to the actual offence committed, but did not also explain to the Jury under what circumstances they should hold that the act of the appellant was extortion amounting to robbery or theft amounting to robbery. I am, therefore, clearly of the opinion that the learned Additional Sessions Judge has not clearly explained the law on the subject to the Jury.
8. There is also a serious misdirection to the Jury in placing before the gentlemen of the Jury the evidence of P.W. 7, the victim. His summing up the evidence of P.W. 7 makes out a case of theft amounting to robbery whereas the evidence of P.W. 7 is definitely to the effect that it is a case of extortion amounting to robbery. The learned Additional Sessions Judge failed to realise this difference and proceeded simply on the assumption that it is enough if robbery is made out. He stated,
'In this case the evidence is that the accused took the money from P.W. 7 against his will by use of violence and putting him in fear'.
This is a clear misdirection. The evidence of P.W, 7 is,
'I made over the Ganjia with coins to the accused when the coins slipped to the ground'.
He also stated.
'I had Rs. 50/- with me then and I was making it over to them from the Ganjia. The coins slipped down on the ground. The accused engaged himself in collecting them.'
This evidence of P.W. 7 clearly shows that he parted with the delivery of possession of the coins to the accused and it is not the accused who took the money from P.W. 7. I am, therefore, clearly off opinion that this is a misdirection to the Jury.
9. There are also several omissions in the charge to the Jury which amount to misdirection. The learned Judge ought to have informed the Jury that Sarees like M. Os. II and III were articles of common use and could be possessed by anybody and ought also to have placed before the Jury that the explanation of the appellant with regard to these Sarees that he brought one from Calcutta and purchased another at Khurda was a reasonable explanation and ought to be taken into consideration by the Jury.
He did not also place before the Jury that the only direct evidence in this case is the evidence of P.W. 7 and that evidence was not corroborated in material particulars. He ought to have placed before the Jury that P.W. 7 immediately the next morning did not name the appellant to P.W. 8 and also did not inform the same to the Medical Officer of Banki and that the report of the Medical officer does not contain the name of the appellant.
The learned Additional Sessions Judge ought to have pointed out many discrepancies in the evidence of P.W. 7 and in the report which he gave to the police, the First Information Report. The First Information Report clearly shows that it was P.W. 7, who negotiated the proposal for marriage whereas his evidence is to the effect that it was the appellant who first initiated the proposal for marriage. In my opinion, therefore, these and some other omissions which the learned Additional Sessions Judge did not place before the Jury in his charge amount also to misdirection.
10. It has now to be seen whether this misdirection of the learned Additional Sessions Judge has resulted in miscarriage of justice. As already noted by me, the misdirection is with regard to vital matters in the case. The misdirection is with regard to not only the matter of law, but also the matter of fact. The misdirection, in my opinion, has resulted in miscarriage of justice.
11. The verdict of the Jury is not reasonable. The only person who spoke to the occurrence is P.W. 7. His evidence is full of discrepancies. The prosecution did not care to examine the three persons who were along with the appellant when he first went to the shop of P.W. 7. The prosecution also did not care to examine the shop-keeper at whose shop the Saree is alleged to have been purchased. P. W. 7 never stated the name of the appellant as the person who committed the robbery the previous night, to P.W. 8 as also to the Medical Officer. These are enough circumstances to doubt the truth of the prosecution case and on this evidence the Jury ought to return a verdict of not guilty.
12. According to the recent decision of the Supreme Court, it is finally settled that when the verdict of the jury is not accepted on the ground of misdirection and non-direction, the whole case is before the Judge in appeal who can go into the evidence and come to his own conclusion. In the case of Ramkishan Mithanlal Sharma v. State of Bombay, (S) AIR 1955 SC 104 (A), the Supreme Court held,
'It is for the Court of Appeal to take the whole case into consideration and determine for itself whether the verdict pronounced by the jury was justified or whether there had been in fact a failure ofjustice.'
In cases where there is a misdirection to the Jury,the Supreme Court held,
'The Court of appeal is thus entitled to examine the evidence for itself and to substitute its own verdict for the verdict of the jury if on examining the record for itself it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted.'
13. On the evidence in this case, I am definitely of the opinion that the evidence for the prosecution is not sufficient to bring home the guilt to the appellant. I would therefore allow the appeal, set aside the conviction and sentence, acquit the appellant and direct that he be set at liberty forthwith.