1. The three appellants were charged with three other persons before the Assistant Sessions Judge of Chingleput Division with the offence of housebreaking by night and dacoity on the night of the 17th October, 1929. The jury returned a unanimous verdict of guilty against the appellants in respect of both the charges but acquitted the other accused. The appellants were sentenced to five years' rigorous imprisonment in respect of each of the convictions, the sentences to run concurrently.
2. The points taken here by Mr. Ethiraj in these appeals are that the Trial Judge wrongly directed the jury as to the law, in that he did not tell them correctly what the offences of robbery and dacoity consisted of, and further that he did not direct the jury with regard to the possible acquittal by them of some of the accused which would reduce the number of the persons present to below five, that they would have to consider whether there were other persons-unidentified persons-in order to justify a conviction of the remaining accused persons for the offence of dacoity. Mr. Ethiraj further complains that in his charge to the Jury the Assistant Sessions Judge has not put many of the facts in the case favourable to the defence.
3. Dealing with the first point, in charging the jury with regard to the offence of robbery, the learned Assistant Sessions Judge said:
When in committing the theft or in carrying away property, a person voluntarily causes hurt or wrongful restraint, the offence amounts to robbery.
4. He is there defining- robbery. He then goes on to say:
If five or more persons take part in the offence, it amounts to dacoity. That is one of the charges in this case.
5. Now, dealing with his definition of the law with regard to robbery, the criticism made is that the learned Assistant Sessions Judge did not tell the jury that it was essential, in order to convict the accused of the offence of robbery, that hurt or wrongful restraint should have been caused for the purpose of the theft. What, it is said, the learned Assistant Sessions Judge has done is to leave it open in the mind of the jury that they were entitled to convict the accused persons of robbery even if merely in the. course of committing theft some violence or wrongful restraint was caused to others. We have been referred to a decision of a Bench of this Court, Karuppa Goundan v. Emperor (1916) 38 I.C. 730, a decision of Spencer and Napier, JJ. There it was decided that, to constitute the offence of dacoity it is necessary that death or hurt or wrongful restraint or fear of such instant evil should be caused by the offenders not only in order to the committing of theft or in committing theft, or in carrying away property obtained by theft, but also for that end, and that five or more persons should be acting conjointly. That of course is almost setting out word for word the words of the section, but that case is a clear decision and it follows two decisions of the Calcutta High Court, namely, Otaruddi Manjhi v. Kafiluddi Manjhi (1900) 5 C.W.N. 372, and King-Emperor v. Mathura Thakur (1901) 6 C.W.N. 72. These cases clearly lay down that it is essential in order to convict persons charged with the offence of robbery that it should be shown not only that violence or hurt or wrongful restraint was caused during the committing of the theft but also that it must be caused for the purpose of enabling theft to be carried out. It is unnecessary for us to say whether the decision of this High Court already referred to is right to the full extent to which it goes. According to the judgment in that case it is necessary for the Judge in charging the jury to tell them that hurt or wrongful restraint must be committed for that end in addition to telling them that it must be committed in order to the committing of robbery or in committing robbery. It is unnecessary for us to consider that case except to say that it does lay down that. the jury must be told that it must be proved that hurt or wrongful restraint was caused for the purpose of enabling the robbers to commit robbery or theft. In this case the proper direction was not given to the jury by the learned Assistant Sessions Judge.
6. Then there is a further point that he did not tell the jury that they must be satisfied that it was the common intention of all these persons charged to commit robbery and that they were acting conjointly. The learned Assistant Sessions Judge contents himself with saying:
If five or more persons take part in the offence, it amounts to dacoity.
That, we think, is an insufficient direction to the jury.
7. Then we come to another objection, namely, that, as the trial resulted in the acquittal of three of the accused leaving only three convicted persons, the jury should have been told, or it should have been explained to the jury, that the effect of that verdict was that the offence of dacoity had not been committed. Without going so far as to say that it is right or proper for a Trial judge to ask questions of the jury as to their reasons after they have arrived at a decision, we certainly think that in a case such as this it should have been explained to the jury what the effect of the verdict was and it should have been pointed out to them that, in order to return a verdict of guilty of dacoity against the three convicted persons, they must be satisfied in their minds that there were at least two other persons present when the offence was committed. The learned Assistant* Sessions Judge did not-ask them to bear that matter in mind and we think that here also he went wrong.
8. In these circumstances it does not seem to be necessary for us either to set out the facts of the case or to express any opinion as to whether his dealing with the facts of the case in his charge to the jury was or was not satisfactory. We have come to the conclusion that the conviction of the accused in this case must be set aside in respect of both the charges. Their bail bonds will be cancelled.