1. The appellants in this case are three out of five young men who have been tried by the learned Sessions Judge of Backerganj and a jury of five persons. The appellants, together with one Noni Gopal Sen Gupta, were charged with an offence punishable under Section 19 (f), Arms Act, and, together with Noni Gopal Sen Gupta and Sudhir Ranjan Chakrabarti, of offences punishable under Sections 399 and 395/120-B, I. P. C. Accepting the majority verdict of the jury the Sessions Judge has convicted Saroj Kumar Chakravarty under Section 19 (f), Arms Act, and Sections 392/120-B, I. P. C., and sentenced him to concurrent terms of 3 and 2 1/2 years' rigorous imprisonment. He has convicted Manmatha Nath Das and Narendra Nath Sen under Sections 392/120-B, I. P. C, only and sentenced them to 2 and 2 1/2 years' rigorous imprisonment respectively. The appellants were acquitted on the other charges and the two persons charged with them on all the charges.
2. The prosecution case is sot out in great detail in the charge of the learned Judge; it will be sufficient if we recapitulate the main points in it. On 25th January 1931 Noni Gopal and an unknown person engaged a boat belonging to the manji Sheikh Ala Baksha at Barisal. The Ghat manjhi requested them to enter particulars of their identity in a book which is kept for that purpose. It is said the entry was made by Noni's companion who wrote in the book the name of a fictitious person. Noni went with Ala Baksha to another ghat where the three appellants joined the boat bringing with them their bedding and a bundle. The manji, on the instructions of his passengers, took the boat to a place called Banerji's hat where the whole party spent the night on board. The next day was spent in travelling, some of the party disembarking from time to time to buy provisions. On the next day, 27th January, the boat arrived at a place called Dhemara, a little after dusk. It so happened that there had recently been a dacoity in the neighbourhood and the inhabitants were apprehensive and suspicious of strangers. This explains the fact that the next morning the local daffadar Keramat Ali accosted Noni and Manmatha who had gone ashore. If Keramat Ali is to be believed Noni gave information as to the identity of himself and his companion that was partly true and partly false. In the afternoon Naren and Manmatha visited the house of one Tarak Kundu said to be the wealthiest inhabitant of Dhemara. Ramesh Kundu, Tarak's nephew, was at home. The visitors inquired if there was anyone there who know of a cure for pthisis. Ramesh replied there was not. Manmatha and Naren talked to one another in English which. Ramesh does not understand. They also asked questions as to the topography of the Kundu establishment which it is suggested indicated a highly suspicious curiosity. On leaving Tarak's house they passed by a pit in which was a man named Gopal Chandra Pal engaged in the preparation of bricks required for alterations to the house. Ho was not visible to Naren or Manmatha and ho hoard one of them say to the other in Bengali Kundu's house is good and the approach is good.' The words taken in connexion with the recent dacoity aroused his suspicions and ho reported the incident to Tarak. The result was that after dark a party of 50 or 60 villagers, under the leadership of the daffadar Keramat Ali, went to the river to examine the boat. They found it just getting under way and called to the occupants to bring it to the bank; this they did but before the boat reached the bank something was dropped from it at the junction of two khals. The manjhi and passengers were made to leave the boat which was searched and amongst other things wore found electric torches, turpentine and mercolized wax. The prosecution case is that there was also found a cartridge of continental make. None of the villagers recognized it as such though its weight aroused their suspicions. The passengers, the manjhi and the objects found were taken to the Naib's kutchery where they were kept for the night. The next date (29th January) they were taken in the boat to the thana at Wajirpur. It is said that en route for the thana Monmotha attempted to bribe Keramat Ali to throw away the cartridge.
3. At Wazirpur the daroga recorded a first information and drew up a search list. As it was late he did not send these prisoners to Barisal until the 30th. On the 30th the daroga also made a fruitless search on the river bank for the article that the villagers said had been dropped from the boat on the evening of the 28th. On the 31st the search was resumed. Nets proved useless but eventually Keramat Ali who in company with the police officers was searching the river bottom by diving brought up a bundle containing two revolvers, 18 live cartridges and 1 expended cartridge.
4. Expert evidence has proved the revolvers to be of Belgian and the cartridges of French manufacture. The cartridges (including the one found in the boat on the 28th) fit the revolvers. Neither revolvers nor cartridges of this type are procurable from dealers in arms and ammunition in India.
5. No evidence was called for the de-fence but in their statements the appellants suggested various innocent explanations of their visit to Dhonowria and to the Kundu's house.
6. The main points in the prosecution case that are attacked are the finding of the cartridge on the 29th and the finding of the revolvers and ammunition in the river on the 31st.
7. It is said that the article found on the 28th was a pen or pencil cap and that a cartridge has been subsequently substituted for it.
8. Similarly it is suggested that the revolvers were only found in the river because they were put there by the police. This is attributed ,to Bhutnath Mukherjee, a Sub-Inspector, who arrived from Barisal on the morning of the 31st having been specially deputed to assist in the investigation.
9. We will now proceed to deal with the various criticisms that have been directed against the learned Judge's conduct of the trial. First, it is said that inadmissible evidence has been admitted against Saroj Kumar. P. W. 2(5 Abdul Kazem Kazi has stated that on 6th January he saw Saroj show Manmatha a revolver similar in size to those exhibited in the case, P. W. 27 Dabiruddin Ahmed, Sub-Inspector of Police, proves that P. W. 26 reported the incident to him on 7th January. In dealing with this evidence the learned Sessions Judge observes:
The only reason why I allowed this evidence to be recorded is that the Grown wished to use it not to show any association of Saroj with Manmatha nor to show that Saroj was in possession of a revolver which might have been one of the two in the ease but in order to show that a revolver was not an unfamiliar thing to Saroj, that is the only reason why this evidence; has been brought on record and that is the only light in which 1 want you to consider it.
10. The learned advocate for the appellant urges that the evidence of P. W. 26 amounts to evidence of the bad character of Saroj and is irrelevant by reason oil Section 64, Evidence Act. We take it the] learned Judge considered it relevant under the provisions of Section 14. Even assuming he was wrong in this we are of opinion that the evidence was relevant by reason of Section 11. One of the facts in issue was the possession of a revolver of 28th January. Having regard to the difficulty of obtaining and disposing of firearms in this country, the fact that throe weeks previously the accused was displaying a revolver similar in size and appearance to that with the possession of which he was charged made in our opinion the fact in issue highly probable. Moreover that he was seen showing the revolver to a companion with whom it was suggested he was conspiring to commit dacoity would in our opinion be relevant as evidence of] preparation.
11. As regards Section 54 it must always be borne in mind that if evidence is other- wise relevant it is not rendered inadmissible merely because it shows bad character or the commission of offence,,; other than the offence with which the accused is charged.
12. It is next said that the learned Judge-was in error in disallowing certain questions put in cross-examination to the witness Tarak Kundu. In examination-in-chief the witness identified the cartridge, Ex. 1, found on 28th January. In cross-examination the following question was asked:
If any one says that the article you recovered that night looked like the cap of a pen would you agree with him?
13. This was disallowed. Seeing that the witness had actually identified Ex. 1 as the article recovered on the 28th, there1 was strictly speaking no relevance in the witness's opinion whether or not Ex. 1 resembled a pen cap.
14. It would have been different if the witness had been referring to an object not produced and described by him as a cartridge, or if it had been shown that before he heard its nature he had described it as a pen cap or like a pen cap.
15. In cross-examination however it is usual to allow some latitude and it appears to us that the learned Judge might well have allowed this line of cross-examination to proceed a little further. This would however have been a relaxation in the rules of evidence to which the accused were not entitled. Moreover it would have led nowhere since in our opinion the identity of the object found in the boat with Ex. 1 was proved to demonstration.
16. It is further made a ground of complaint that material witnesses have not been called and that the learned Judge has not directed the jury as to the inferences they were at liberty to draw from the absence of these persons from the witness box.
17. Two of such witnesses, the postmaster Nakul Samaddar, and Jotindra Nath Chatterji, are named in the First Information Report, but their evidence has little bearing on the matter as they are merely described as having interrogated the accused persons on their arrival at Dhewaria.
18. It is next pointed out that only one of the signatories to the search list made out by the daroga has given evidence. In our experience it is not usual to call every search witness, and. it should also be remembered that what took place at Wazirpur was not strictly speaking a search at all, but merely the making of a catalogue of the articles that the daffadar had seized on the previous evening. It is common ground except with regard to Ex. 1, that all these articles wore in fact seized at that time.
19. The appellants are on firmer ground when they complain of the non-production of Amzad Ali choukidar, who searched the boat at Dhamuria. It is clearly no answer to this objection to say, as the learned Deputy Legal Remembrancer did, that if the jury did not believe the daffadar they would not believe the chowkidar. The point of course is that unless all the material witnessed are called the defence is deprived of opportunities of eliciting from the absent 'witnesses facts that may discredit the prosecution case.
20. If we were of opinion that the failure to examine Amjad Ali may have prejudiced the appellants we should have to consider the propriety of directing a retrial.
21. We now come to the most important point raised in the appeal. This is concerned with the witness Gopal Chandra Pal who claims to have overheard the words that passed between Manmatha and Naren on the subject of the Kundu bari.'
22. The learned Judge directed the jury as follows: It is urged by the defence that this is a false statement and must be entirely rejected. But you will re-member that there is a presumption in law that a witness who comes to Court and deposes on oath should be believed until there is good reason established to disbelieve him. There is no reason put forward at all as to why Gopal should be disbelieved. Merely to thunder at a witness: 'I put it to you that all you say is false' is not the same thing as to establish a reason why that evidence should be regarded as false.
23. It is in our opinion unfortunate that the learned Sessions Judge has either overlooked or forgotten the judgment of this Court in the Emperor v. Tozem Ali A.I.R. 1931 Cal. 796. That was a case of a capital sentence submitted to the Court under Ch. 27, Criminal P. C., and there were also appeals by the person sentenced to death and by his co-accused.
24. The Court consisting of Rankin, C. J. and Graham and Mallik, JJ., directed a retrial. The same learned Judge who tried the case now before us had directed the jury as follows:
It is of course a presumption in law that a witness should be believed while deposing on oath. In other words, you should accept what these witnesses say as being true, until the defence give you some reason to reject their evidence as being tainted.
25. Rankin, C. J., in delivering the judgment of the Court observed that it is a direction which cannot be supported and he proceeds to show not only that such a direction may operate most unfavourably to the accused unless accompanied by other directions which but for it would be quite unnecessary, but that when analyzed with regard to the conditions under which at the present day at any rate trials are conducted it is almost meaningless. Towards the close of his judgment he says:
There seems to be a danger lost learned Judges should get into the habit of employing this kind of direction, which seems to me to be confused and unfair.
I desire to see this kind of direction abandoned altogether.
26. The charge before us shows that the danger to which the learned Chief Justice referred is a real one, and that the hope he expressed has not been fulfilled.
27. By all means let Judges warn juries against rejecting testimony for no reason whatever, but the less that is heard of legal presumptions in favour of veracity the better.
28. The question therefore is what course we should take with regard to this direction which we have no doubt offends against the principles laid down in Tozem Alt's case : AIR1931Cal796 .
29. Our attention has been drawn to the Unreported case of Tofuddi v. Emperor Appeal No. 389 of 1931. That was a decision of Rankin, C. J. and C. C. Ghose, J. The direction was similar to that in Tozem Ali's case : AIR1931Cal796 and with regard to that case Rankin, C. J., says that the proposition
was there laid down in a manner which I was satisfied was really prejudicial to the accused. In the present case I do not think it is possible to suppose that the exposition was prejudicial.
30. The appeal was dismissed.
31. Ambar Ali v. Emperor : AIR1928Cal769 also indicates that a direction of this sort is not a ground for allowing an appeal unless prejudice has been caused.
32. It will be observed that the case before us differs in many respects from Tozem Ali's case : AIR1931Cal796 . In that case the direction was given in respect of the evidence of the whole body of the prosecution witnesses, here only in respect of the evidence of one witness out of more than 30. In Tozem Ali's case : AIR1931Cal796 the learned Judge omitted to point out that the presumption in favour of veracity if it exists, applied as much to the defence as to the prosecution witnesses.
33. The appellants before us called no evidence; so this consideration is absent.
34. By Sub-section (2), Section 423, Criminal P. C, nothing in that section shall authorise the Court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him.
35. In other words before we can interfere we must be reasonably satisfied that not only has the learned Judge misdirected the jury but that his misdirection has caused them to come to a conclusion which is in fact wrong.
36. Having weighed the evidence we find the conclusion irresistible that the jury were right in finding the appellants guilty. The most important feature of the case is the discovery of the cartridge Ex. 1 on the evening of 28th January. In our opinion the documentary evidence (i. e., the first Information Re-port, the Station Diary, and the telegram despatched by the daroga to Barisal) demonstrates beyond the possibility of doubt that Ex. 1 was produced at the thana by Keramat Ali on the 29th. It is inconceivable that a pen or pencil cap could have struck the villagers as a heavy object or aroused their suspicions. Once the discovery of Ex. 1 is accepted as genuine the suggestion that the Barisal police can have placed in the river two revolvers of continental manufacture to correspond with it becomes fantastic, and once it is accepted that a member of the party had in his possession arms and ammunition it is impossible to assign any interpretation but an unfavourable one to the visit to Tarak Kundu's house or to the conversation overheard by Gopal Chandra Pal.
37. Gopal Chandra's evidence is of a kind which naturally is viewed with some suspicion, We think however that the fact that the report made by him to Tarak Kundu was the thing that eventually resulted in the seizure of the appellants and their effect is a satisfactory guarantee of truth.
38. The result is that these appeals must be dismissed. We cannot accede to the plea of the appellants' learned advocate for a reduction of the sentence.
39. The circumstances can leave us in no doubt that the appellants were planning an armed attack upon the Kundu's house which would have been carried out, possibly with fatal consequences, but for the energy and good sense of Keramat Ali.
M.C. Ghose, J.
40. I agree.