1. This is a reference by the learned Assistant Sessions Judge of Devakottai against the verdict of the jury in Sessions Case No. 130 of 194(3. The charge against the accused was for an offence of dacoity under Section 395, Indian Penal Code, but the dacoity was one in a very technical sense. There were eight persons put up for trial before the learned Assistant Sessions Judge. Two of them accused 1 and 3 were alleged to be pattadars holding ryoti lands in the Zamindari of Ramnad. It was alleged that they were in arrears with their rent, that when the estate authorities went and distrained their cattle, they and the other six accused came and forcibly rescued the cattle inflicting injuries upon the estate servants for that end. The accused were therefore supposed to have stolen their own cattle. The theft became an offence of robbery because they were said to have caused hurt to some of the prosecution witnesses in order to the commission of the theft, and since there were more than five jointly concerned the offence became one of dacoity.
2. The learned Assistant Sessions Judge recorded all the evidence at great length and then charged the jury. He endeavoured to persuade the jury to acquit all the accused persons, but the jury returned a unanimous verdict of guilty. The learned Assistant Sessions Judge disagrees with that verdict and considers that it is grossly unjust and perverse and he has therefore made this reference under Section 307 of the Code of Criminal Procedure.
3. Although the reference must be accepted, it is quite clear that it need never have been made. On the evidence recorded and the facts stated by the learned Assistant Sessions Judge, he ought to have directed the jury under Section 289 (2) of the Criminal Procedure Code, to return a verdict of not guilty. As the learned Assistant Sessions Judge states, the distraint of the cattle of the first and the third accused would be illegal if it were made by a person unauthorised to make it, if it were made without the prior exchange of patta and muchilika, or if it were made to recover the arrears of more than twelve months. In this case the Inspector P. W. 1 who wrote out the distraint notices was not proved to have had any authority to make the distraint. There was also no proof of the exchange of patta and muchilika between the Zamindar and accused 1 and 3, or of the continuance in existence of a valid patta; and it was also clear that the estate officials were attempting to recover arrears of more than one fasli by means of a single distraint. In these circumstances it is clear that the distraint was wholly illegal, and the first and third accused could not be said to be acting dishonestly when they went to recover their cattle from the possession of the estate officials, who were taking them away. Nor could the other accused who were helping them to recover their own property illegally distrained be considered to be acting dishonestly. It is clear therefore that the essential elements of the offence of theft were wanting in this case. Without theft there can be no robbery and of course no dacoity. The learned Assistant Sessions Judge ought to have told the jury that, even if they believed every word that the prosecution witnesses said, the accused were not guilty of any offence and therefore they must return a verdict of not guilty. Instead of doing that, he charged them at great length discussing before them all the legal elements of a lawful distraint. This must have been extremely confusing to the jury, and it was very unfair on the part of the learned Assistant Sessions Judge. It was his duty, not that of the jury to find whether there had been a valid distraint or not, whether the cattle had been illegally taken away and whether the accused acted dishonestly.
4. The verdict of the jury clearly cannot be allowed to stand. We set it aside and direct that the accused in this case be acquitted. They must also be set at liberty forthwith. The learned Assistant Sessions Judge in this matter also has not apparently had the courage to act up to his own convictions. He has said that the verdict of the jury was perverse and unjust and his opinion clearly is that the accused ought not to have been convicted; nevertheless he has kept them in custody ever since the date of the trial, 14th December, 1940. They had also been in jail for a considerable period before the trial took place. The learned Assistant Sessions Judge ought to have released them on bail immediately.