1. The applt. was convicted by the Assistant Ses. J., Midnapore, under Section 395, I. P. C., in accordance with the unanimous verdict of the Jury & sentenced to R. I. for four & a half years. The prosecution case was that on 2-7-1949, at about 10 P. M. thirty or forty persons came into the house of the complainant Atul Bharati, broke open the bera of the southern room & opened the eastern khirki by means of a dhenki & that when they threatened to beat the inmates of the house, the male folk retreated, some outside the house & some to the roof of the house, after which they removed a number of articles from the house after breaking open some trunks. It is said that Atul Bharati's aunt, mother & sister were assaulted & their ornaments were taken away. It is further the prosecution case that the present applt. was recognised by the aunt, mother & sister of Atul Bharati.
2. The accused pleaded not guilty. His case was that there was no dacoity at all & the case was falsely instituted because of enmity between the complaint & the applt's. master Murari.
3. Mr. Mukherjee, the learned counsel appearing for the applt. made several criticisms against the learned Judge's charge to the Jury, one of which was that the learned Judge omitted to direct the Jury that the investigating officer did not follow the law as laid down in Section 161(3), Cr. P. C., for recording the statements made by several of the witnesses during investigation. That the law was not properly observed in this matter is clear from the report of the investigating officer himself & is not disputed before us on behalf of the learned Advocate for the State. It must be held on the authority of the decision in the case of Bejoy Chand Patra v. The State, : AIR1950Cal363 , that the learned Judge ought, in such cases, to tell the Jury that the law has not been observed & that they may make a presumption against the prosecution from the fact if they so think fit in consideration of the circumstances of the case, & that the omission to do so is a misdirection.
4. In our judgment it is not proper for us to try to speculate what the Jury might have held if the necessary direction had been given. There was this misdirection & what we ought to see is whether the evidence on the record justifies in our own judgment the verdict which the Jury arrived at. If it is held that the evidence does justify the verdict, then it should necessarily be held that the misdirection has not resulted in any erroneous verdict or any failure of justice & the verdict of the Jury should stand. If, however, our conclusion is that the evidence on the record does not justify the verdict returned by the Jury, it must be held that the misdirection has resulted in failure of justice & consequently the verdict of the Jury should not be allowed to stand.
5. As there is clear misdirection in this case inasmuch as the learned Judge did not tell the Jury that the law as regards recording of statements of witnesses had not been observed & had not told them what presumption they might draw therefrom, it is necessary for us to see whether in this case the evidence on the record justifies the verdict.
6. We have been taken through the evidence & find that on both the important questions viz., whether there was a dacoity & secondly whether the applt. was recognised by the persons who took part in that occurrence, the evidence is only of interested persons. (After discussing the evidence, the judgment proceeded.) It must he held in these circumstances that the misdirection which we have mentioned above has in the present case actually led to an erroneous verdict, & failure of justice.
7. The appeal is accordingly allowed, the order of conviction & sentence is set aside & the accused will be acquitted & discharged from bail bond.