1. In this case there were four accused who were tried by the Additional Sessions Judge of Asansol with a jury, who by a unanimous verdict found the accused Ganpat Sonar, Kishori Kishore Mishra and Chhidami Sukul, guilty under Section 395, I.P.C., and Pandit Kishen Prosad Tewari not guilty. They also found Kishori Kishore Misra guilty under Section 465, I.P.C. The learned Judge, agreeing with and accepting the verdict, sentenced Kishore Kishore Misra and Chidami Lal to 10 years' rigorous imprisonment each and Ganpat Sonar to five years rigorous imprisonment. Kishori Kishore Misra is the only appellant. The case was unusual. On 9th January the village Chowkidar came to the house of one Priya Nath Roy and told him that the Sub-Inspector and Inspector of Raneegunge had come to the village to inquire about his gun, as he was suspected of having given it to the dacoits in a case at Raneegunj police station. He was asked to take his license with him as the police officers wanted to see it. Accordingly, he went with the chowkidar and so-called constables to see these 'officers.' He saw them seated outside the house of one Behari and when he had given his gun license to them, they said that he must go and fetch the gun as well. This he did, and then they sent him to fetch the cartridges. While he was returning, they met him half-way and said that they wanted to search some houses, and took him to the house of his uncle Tarak Nath Roy. When they got there, the so-called 'officers' produced revolvers and held up Priya Nath and his companions, entered Tarak's house, and broke open several boxes. One of them gave Priya Nath a receipt (Ex. 11) for his gun and went away with the gun and some property from Tarak's house. When they had gone, Priya Nath, who had realized that they were not police officers but dacoits went and gave information to the police. The defence was that all the accused except Chhidami were innocent and knew nothing about the incident. Chhidami and Ganpat each made confessions implicating some of the other accused. In charging the jury, the learned Judge dealt with these confessions and told them that the decision whether a confession was voluntary or not and therefore admissible in evidence, whether proper warning was given and a sufficient amount of time for consideration allowed, whether the formalities were properly carried out and other similar matters, were points of law and therefore for him to decide. It was for him to decide whether the police used any violence or inducement in order to make the accused person confess. Then he said that after considering the evidence on these points, he came to the conclusion that there was no reasonable ground for surmising that the confessions were not entirely voluntary. He continued as follows:
You are bound by my decision on this point. You should consider that the police used no undue influence or violence, that the accused persons were given the proper warning, that their confessions were liable to be used in evidence against them, that they were given enough time to consider, before their confessions were recorded and that the confessions were entirely voluntary. Having taken these things for granted, it is for you to decide whether the accused persons were telling the truth when they confessed, and what weight should be attached to their confessions.
2. In my opinion this statement amounted to a serious misdirection. In a recent decision on the point in Kasimuddin v. Emperor 1934 Cal 853 admissibility is one question and proof another. The first, which is for the Judge, is only a prima facie or preliminary consideration, limited to the letting in of the evidence. The second, which is for the jury and relates to the credibility and the weight of the evidence, arises after the evidence has been let in, and must be decided on a consideration of all the relevant circumstances, including those proved before the Judge. Consequently although the Judge has to decide the question of the voluntariness of a confession in its bearing upon admissibility, still after he has admitted it, the jury are entitled and must be allowed to consider for themselves the question of voluntariness in its bearing upon the truth of the confession. To tell the jury that in admitting the confession the Judge had decided that it was voluntary, and that the jury were to take that question as settled and on that basis decide whether the confession was true, and what value was to be attached to it, is a serious misdirection, inasmuch as it withdraws from the jury an issue of fact relating to the question of truth.
3. This decision was based upon a careful consideration of the law, and of previous decisions upon this point, and we are in agreement with it. It seems to have been based, to a considerable extent, upon statements alleged to appear in a text book entitled 'Wigmore on Evidence,' which apparently, is an American Text Book published in Boston, U.S.A. Strictly speaking, statements made in foreign text books ought not to be considered by this Court or any other English Court. But the learned Judges also relied upon Taylor on Evidence, Edn. 2, p. 27. This author is an undoubted authority upon the law of Evidence in England, which law substantially and with very slight alterations is reproduced in the Indian Evidence Act. In addition to this misdirection, the learned Judge made a statement with regard to the appellant about which there seems to be considerable doubt whether it was accurate or not. In dealing with the case of Kishori Kishore Misra he said:
We now come to this last accused against whom the prosecution has urged that there is more evidence than against any of the other accused persons. He is mentioned in the confession of Ganpat, but Chhidami could not select him out of the suspects in the identification parade.
4. Now, so far as we can ascertain, this appellant is not mentioned in the confession of Ganpat. The learned Advocate appearing for the Crown has drawn our attention to various statements in the confession which go to show that it is possible that he did mention this appellant, but under another name. The difficulty is that Ganpat referred to Kishori Prosad and not Kishori Kishore Misra. He also referred to Ganti alias Kishori Prosad. Now, Chhidami in his confession referred to himself as Kishori Prosad alias Chhidami and there is no evidence in this case to identify Kishori Kishore Misra with Ganti. If there had been such evidence, of course it would have been open to the Crown to argue that there was sufficient to show that Kishori, as mentioned in Ganpat's evidence, is the same person as Kishori Kishore Misra. It is true that in the record of proceedings he has been styled Kishori Kishore Misra alias Ganti, but I can find no evidence in the record connecting Kishori Kishore Misra with the name Ganti. That being so, there is considerable force in the argument of the learned Advocate for the appellant that the statement of the learned Judge with regard to Ganpat's confession was not accurate. At any rate, there is very considerable doubt about it. In addition, there is the fact that Chhidami failed to identify Kishori when he was included among a number of suspects in the identification parade. Other points raised by the learned Advocate for the appellant were, that there was no power in a Magistrate making an enquiry prior to commitment to ask some other Magistrate to direct an accused person to make a specimen of his handwriting for comparison with other handwritings in the case. Section 73, Evidence Act, provides that
the Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
5. It is argued on behalf of the Crown that the Court in this case was the Magistrate holding the enquiry, and he must be taken to have directed the accused to write but to do so before the other Magistrate. It is unnecessary for us to decide this point. But I have no doubt whatever that such a procedure does not come within the terms of Section 73, Evidence Act. I think that where the section says that the Court may direct any person present in Court to write, it must mean that where the accused is in Court, the Judge presiding in that Court may there and then ask him to write something for the purpose of enabling the Court to compare his writing with some other writing, and that the procedure of delegating to another Magistrate, not sitting as a Court, to take such a writing from the accused when the accused is not in Court nor standing his trial in Court does not come within the provisions of the section. Further, I have considerable doubt whether Section 73 refers to an accused person at all. Upon this point the decision in Azimuddy v. Emperor 1927 Cal 17, shows that the word 'person' when used in a section of an Act dealing with accused persons does not necessarily include the accused.
6. A further point taken by the learned advocate for the appellant was that the learned Judge ought to have given a more careful warning to jury about the evidence of the handwriting expert, and that he ought to have told the jury that they should very carefully weigh this part of the evidence. There is not much force in this part of the learned advocate's argument, because it is the duty of the jury carefully to consider and weigh all the evidence in this case. The question of reliability of the evidence of an expert in handwriting is clearly one for the jury to decide Some people including Judges have great faith in this kind of evidence, while others take the view that it is seldom reliable. On such a question the jury, after having all the points explained to them by the Judge and by the expert, are in a position to decide whether they think that they ought to rely upon the evidence or not. The misdirection of the learned Judge, especially upon the point of voluntariness, may very well have affected the decision in this case. It is not possible to conjecture what the decision of the jury would have been if they had been told that they were at liberty to consider whether these confessions were voluntary or not when they were considering the question of their truth. If the jury after a proper direction, had rejected the confessions altogether on the ground that they were not true confessions, nothing was left of the evidence against this particular appellant except the receipt. The question whether this receipt had been given by the appellant depended entirely on the evidence of the handwriting expert. In these circumstances, we are of opinion that this conviction cannot be allowed to stand, and the conviction and sentence must be set aside. In view of the fact that there is no evidence against this accused, except the evidence of the handwriting expert, we do not think it worth while to send the case back for retrial. The appellant therefore is acquitted.
7. I agree. All that I would like to say with regard to Section 73, Evidence Act, is that had it been necessary to decide this point, I would be inclined to hold that Section 73 does include an accused person. There is authority for this view in the cases of Emperor v. Nga Tun Hlaing 1924 Rang 115 and Emperor v. Ramrao Mangesh 1932 Bom 406. However there is no need to decide this point in this particular case. I agree that the conviction and sentence in this case should be set aside and the appellant acquitted.