1. Five persons were committed for trial in this case on a charge of dacoity under Section 395, Indian Penal Code. The Jury found two of them guilty and the remaining three not guilty.
2. The prosecution case, as it is to be found in the evidence of P. Ws. Nos. 1 to 3 and in the statement to the Village Munsif Ex. A, is that five and only five persona took part in the dacoity. The point raised in this appeal is that the learned Sessions Judge did not make clear to the Jury the possible consequence of acquitting any of the number of persons charged. In para. 5 of his judgment he rightly says that there were two things they had to be sure about, one being that there was actually a dacoity and the other, whether each of the accused took part in it. Again, in para. 17 he concludes his charge by saying 'If you are satisfied that there was a dacoity, then before you find the accused guilty you should be satisfied that each of the accused was concerned in it, and if you have any reasonable doubt in the case of any of the accused it is your duty to acquit that accused. I think he should then have gone on to point out to the Jury that they should proceed to consider in the event of any of the accused being found not guilty, whether the prosecution case that five persons took part in the offence was established or not and, if not, whether any persons less than five were concerned, in which case he should further have pointed out that the offence each of them would have committed would be no dacoity but robbery. A closely similar case was disposed of by Waller and Madhavan Nair, JJ., in In Re: Abbas Ali Sahib : AIR1928Mad144 . In that case the prosecution alleged that three known and named persons and two unknown persons had taken part in the dacoity and the Jury acquitted one of the three and were accordingly faced with a similar problem. The learned Judges observed that 'the Sessions Judge should have asked them definitely whether they had considered the possible result of the acquittal and whether they still found that the number was five and in view of the omission to ask them that question they set aside the convictions. For similar reasons I must set aside the convictions here.
3. The appellants, it is stated, out of a sentence of three years' rigorous imprisonment, have already been in Jail for 6 months and 10 days, the sentence having been passed on 11th February, 1929. Mr. Mani for the learned Public Prosecutor does not press for a re-trial of the case and in the circumstances I consider there will not be sufficient justification for that course. The appellants will be acquitted and set at liberty.