1. The three appellants were three of the four accused in the Court of the Sessions Judge of Chingleput who were charged under Section 395 of the Indian Penal Code with dacoity. The three appellants were found guilty by a unanimous verdict of the jury and were sentenced by the Sessions Judge to five years' rigorous imprisonment.
2. The prosecution case is that the third accused entertained some animosity against P. W. 6, the complainant, and engaged a number of persons to break into his house to attack him and beat him, to do the same to his women, and then to help themselves to whatever property they could lay hands on. In accordance with that plan, the 3rd accused took the other accused and one or two more men in a car to a place near the house of P. W. 6. They watched P. W. 6's house for some time, and when they saw that he and his family had retired to rest, they entered the house. To some extent the plan miscarried, in that P. W. 6 and his womenfolk made so much noise that neighbours were attracted and the accused had to decamp without having taken anything more than a jewel from the person of Mangi Bai, the daughter of P, W. 6. The first accused, in trying to escape, fell into a well and was caught at once. Seeing that the game was up, he made a confession which led to the discovery of all the incidents in the plot and in the offence.
3. The case was tried by jury; and so the only questions that arise here are whether there was any misdirection to the jury and if so, whether as a result of the misdirection the jury returned an erroneous verdict.
4. Many criticisms have been made of the charge delivered to the jury; but most of them do not call for any remarks. It is true that the learned Sessions Judge may have put many of the points with some advantage in a slightly different way which would perhaps have made the charge a little more favourable to the accused; but for the most part I cannot say that the Judge has not put the matters correctly and fairly before the jury.
5. One of the important witnesses in the case was a constable, P. W. 10 who had seen the third accused loitering near his station at 12-30 in the night and who later heard a disturbance from the house of P. W. 6 where the offence took place. When he came out of the station he saw the third accused running away from the house of P. W. 6 to his own house, which he entered. In cross-examination, the attention of this witness was drawn to the fact that the note book in which the matter had been recorded did not mention the time; and in order to show that this entry in the note book was not made subsequently, as a kind of after-thought, the constable stated that he had told the Circle Inspector twice of this matter. The learned Sessions Judge has told the jury that the conduct of the constable supports his evidence that he made a note in the note book then and there. Although evidence of conduct is admissible and his statement to the Circle Inspector was admitted purely for that purpose, yet I am inclined to agree with the learned advocate for the third accused that it is not admissible because of the prohibition in Section 162 of the Criminal Procedure Code. However, this point is after all a petty one; whether or no the constable made an entry in his note book immediately seems to be of little importance.
6. Another point raised is that the learned Sessions, Judge has not told the jury very clearly that in order that the offence of robbery and dacoity might be committed, it was necessary that the violence should have been
in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft.
In particular, this sentence in the charge
When five or more persons conjointly commit or attempt to commit robbery, that is theft accompanied by or involving violence; person present and aiding such commission or attempt, every person so committing, attempting or aiding is said to commit dacoity,
is said to convey an incorrect idea of the offence. But I find that earlier in the same paragraph the learned Sessions Judge has put the matter correctly before the jury; for what he says is:
When five or more persons join in committing theft and when violence or threat of violence is used by any of them in order to the commission of the said theft or while committing the said theft or while taking away stolen property, they are said to commit dacoity.
I do not think that the jury could have been in any way misled by the more summary manner in which robbery is referred to later in the same paragraph.
7. I agree that it is advisable to tell the jury after the whole evidence has been discussed that they should give the benefit of the doubt to the accused. The learned Judge gave them that advice near the beginning of his charge. There are however many things that are better said at the end; but obviously everything cannot be said at the end; and I do not for a moment think that the fact that this caution was given at the beginning rather than at the end affected in any way the verdict of the jury.
8. The learned advocates for the appellants complain that the learned Sessions Judge has not put before the jury properly the circumstances bearing upon the question of the admissibility of the first accused's confession. I will go further than that and say that the learned Judge should not have charged the jury with regard to the evidence on this point; because it is for the Judge to decide whether a confession is made voluntarily or not. If it falls under the bar of Section 24 of the Evidence Act, it is not admissible in evidence; and the admissibility of evidence is a question of law which the Judge has to decide for himself. Even though that point involves decisions on questions of fact, it is nevertheless for the Judge to decide the questions of fact which bear upon the admissibility of the confession. I have no doubt, however, that the learned Judge thought that the confession was admissible; and he was right. The first accused was practically caught red-handed. When he found himself in the well and unable to get out, he must have seen that it was of no use pretending that he had nothing to do with the house-breaking. He also seems to have thought, judging from some of the expressions used by him in his confession, that he had not been fairly remunerated by his employer, and so it was not at all unnatural that he should make a confession to the police and be willing, subsequently to repeat that confession before the Magistrate. The learned Magistrate who recorded the confession seems to have bungled somewhat in his answers to the question whether he warned the accused that there was no intention of taking him as an approver; but that is only one of the many questions set out in the Criminal Rules of Practice as means whereby the Magistrate might assure himself that the confession is a voluntary one and is not brought about by any threat, coercion or inducement. The Magistrate did not make note that he asked such a question; but says that he did ask it. However, the other questions put by him and the circumstances under which the confession was made leave no doubt in my mind that the confession was a voluntary one. The earlier confession to the police is also admissible, in so far as it led to the discovery of the car in which persons were brought from Madras to the neighbourhood of P. W. 6's house. As a result of his confession the owner of the car was traced and many particulars in connection with this offence were revealed to the police.
9. It is not open to this Court in an appeal against a verdict by the jury to consider whether this Court would on the same evidence convict any one of the accused. The evidence against the second accused is very considerable; and I can hardly imagine that any jury would not find him guilty on that evidence. That against the third accused is much less; but it is sufficient to form a basis for a conviction. The learned Sessions Judge could not have told the jury that there was not sufficient evidence against this accused to warrant a conviction; that is, he could not have asked the jury to return a verdict of not guilty ' against this accused. The evidence of P. Ws. 10 and 15 was sufficient in itself to lead to a conclusion that the third accused took part in the dacoity; but any doubt that might have been left in the minds of the jury on this question could be set at rest by the confession of the 'first accused, which could be taken into account even against the third accused.
10. Another point made by the learned advocates for the appellants is that the learned Judge should have emphasised more the fact that the confession made by the first accused was retracted even in the Court of the Committing Magistrate. The learned Judge might have said that; but I do not know what conclusion can be drawn from the retraction. In my experience, the accused always do retract their confession in the Committing Magistrate's Court if they are represented by counsel; and I certainly do not think that that is any reason--in this case at any rate--for doubting the truth of the confession made before the Magistrate under Section 164, Criminal Procedure Code.
11. The last of the contentions of the learned Counsel for the accused worth noting is that the learned Judge did not point out sufficiently to the jury that they must be satisfied that there were five persons taking part in the dacoity. There was substantial evidence that five persons did participate; but the learned Judge seems not to have foreseen the possibility that some of the accused might be held by the jury to be not guilty. So that he should have told the jury that in case they acquitted any of the accused, they should again consider whether in spite of their finding that one or more accused were not guilty, there were five persons participating in the offence. That defect in the charge would not in itself be a sufficient ground for setting aside the conviction; but I think that in this case the omission led to a wrong verdict. Although the learned Sessions Judge has discussed the confessions made by the first accused, he has not indicated that they leave us very much in doubt whether more than three persons entered the house. The confession to the Magistrate might lead one to the conclusion that four persons entered the house, although he specifically refers only to three, the fourth accused, the second accused, and himself; but in his confession to the police he made it pretty clear that only three persons entered the house. On the other hand we have the evidence of P. W. 6, his wife, and his daughter that five persons attacked them; but it is not at all improbable that they magnified the offence in order to make it still more serious against the third accused, who they knew was responsible for the staging of this attack on them and their property. It is far more probable that the confession of the first accused on this point is true; for as far as we can test the confession, it seems correct. If there were three persons inside the house, then it is doubtful whether five persons took part in the dacoity. On the contrary, it seems more likely that there were only four. The third accused was keeping watch outside. There was also a Hindu by the name of Maruthi who came in the car; but according to the first accused's confession, he seems not to have been given any part; and we cannot be at all sure that he was standing outside the house with the third accused. He seems not to have been seen by the constable, P. W. 10, who saw the third accused running away unaccompanied. The offence committed by the accused has not therefore been proved' to be dacoity; but they are guilty of offences punishable under Sections 457 and 392, Indian Penal Code.
12. It is unnecessary to send this case back for re-trial on the ground of this misdirection; because it can only affect the question of sentence. I therefore set aside the conviction under Section 395, Indian Penal Code and convict the appellants under Sections 457 and 392 reducing the sentences from five years' rigorous imprisonment to four years' rigorous imprisonment.