1. Appellants have been convicted of dacoity by a jury. The charge against them briefly is that they accused P.W. No. 1 of having stolen some timber and extorted from him and his two sons one of whom, strangely enough, is a minor, a promissory-note for Rs. 200. The Sessions Judge summed, upon the whole case in favour of the defence laying though, as it turned out, insufficient emphasis, on the defects in the prosecution case which were both numerous and striking. The jury, however, elected, while acquitting the 4th accused, to convict the five appellants. The acquittal of the 4th accused is perhaps the most inexplicable feature of a highly unsatisfactory case. The evidence against him was precisely as strong or as weak as that against the appellants. If he was innocent, so obviously were they. The Judge having agreed with the Jury that he was innocent and doubting, as he evidently did, the truth of the prosecution case, should certainly have referred the rest of the verdict as flagrantly perverse.
2. As a result, appellants are now driven to allege misdirection in the charge and irregularity in the selection of the jury. We may say at once that the alleged irregularity has not been made out. No doubt, some sort of objection was taken to one of the jurors and it is said that that objection was not waived but the affidavit filed by the Counsel who appeared at the trial is studiously silent on the point. Where a charge is, as a whole distinctly favourable to the defence, it is a matter of great difficulty to say that there is any misdirection which has misled the jury. It is not, we think, enough to say that the Judge might have laid much more stress than he has laid on the defects in the prosecution case. There are, however, two respects in which the Judges' charge is extremely defective. The defence really was that P Ws. Nos. 1 and 2 had executed a promissory note in favour of the 4th appellant, 40 days before the occurrence, and that the prosecution had been launched in order to avoid this note. The note in question was produced in Court and P.W. No. 1 denied having signed it. He had, of course, to deny, because it bears a date earlier than that of the alleged extortion is signed by himself and only one son and is differently attested from the extorted note. It is, however, very probable as Mr. Adam conceded that there really was one note and that Ex. V is the note that is alleged to have been extorted. However, Ex. V was an important feature of the case and the Judge, in our opinion, did not sufficiently impress the Jury with its importance. He should have asked the Jury to consider whether a note really had passed 40 days before the alleged extortion and whether the prosecution was not merely a device to defeat that note. The other matter is this. The evidence given by P.W. Nos. 4, 5 and 6 as to the statements alleged to have been made to them by P.W. No. 1 was relevant only if those statements were made at or about the time of the occurrence. The Judge should, we think, have told the Jury that the statements in question were not made under circumstances which justified proof of them being admitted in evidence.
3. We consider that the defence case was not adequately put before the jury and that evidence was admitted which should have been excluded. The verdict must, therefore, be set aside. We see no reason to order a re-trial. The appellants are acquitted and discharged.