1. This is an appeal by two persons Bikram Ali Pramanik and Kudrutulla Khan. These two persons together with one Samatulla were tried by the learned Additional Sessions Judge of Pabna and a jury on charges of dacoity and house breaking by night. The jury unanimously found all the three persons guilty under Section 457, I.P.C., and not guilty under Section 395, I.P.C. The appeal of Samatulla has been summarily dismissed and that of the other two appellants is now before us.
2. The case for the prosecution briefly was that these persons together with a number of other persons broke into the house of the complainant on the night of 27th May 1928. The defence briefly was a denial of the whole occurrence; and there was a suggestion in the case of Samatulla of enmity.
3. The first point raised by the learned vakil for the appellants is that the alternative charges under Sections 395 and 457, I.P.C., are bad in law. Why it is bad in law I am unable to understand. Offence under Section 457, I.P.C., is really in some cases a minor offence to offence under Section 395. There can be no reason why there should not be alternative charges of these two offences.
4. The next point raised is that the learned Judge has not properly dealt with or has misdirected the jury with regard to a certain alleged confession. It is alleged that Samatulla, whose appeal has been rejected, on the night of the dacoity made a confession to a cousin of his one Kefcab Ali Sarkar in which he admitted that ho and the two appellants had committed dacoity in the house of the complainant. In dealing with this confession the learned Judge's charge to the jury is as follows:
P.W. 15 Ketab Ali, a deed writer in the, Salanga Registration Office says that the accused Samatulla is his cousin and that he went to him at about 3-30 a.m. on the night of occurrence and requested him to save him as his name had been mentioned in connexion with the dacoity. This person says that after pressure being put, the accused Samatulla stated that he with the other two accused and also two other persons had committed the dacoity. The witness admits that there was a quarrel bet wean him and the accused Samatulla regarding the deduction of Rs. 10 from the price of three maunds of sweetmeats taken by Samat from his shop. This witness further admits that he (Samat) also said that his namo had been falsely mentioned in the Ejahar at the Thana. P.W. 15 was not examined by the Sub-Inspector. It is for you to say whether the accused Samatulla went to this witness on the night of occurrence and made the confession.
5. With regard to the alleged confession itself it is to be found in the evidence of Kebab Ali Sarkar when examined before the Magistrate. There he stated that Samatulla on being pressed said that he, Bikram Ali, Kudar Ali Khan and two others committed dacoity in the house of Chandulla Sarkar. When examined in the Sessions Court he states as follows:
Accused Samatulla is my co-villager. At about 3 and 3-30 a.m. the Nanigachi mela day I came to know of a dacoity in Chandulla's house... Accused Samatulla came to me that night. He is here. He said that his name had been taken in connexion with the dacoity in Chandulla's house. He asked me to go to the Prodhans of that Parah. I told him to come in the morning as I could not go at that hour of the night. Ho did not come to me any more. He said that three names were mentioned in connexion with the dacoity, viz., those of Bikram and himself and the man who was a Hindu before and converted to be a Mahomedan afterwards.
6. It would be noticed that in that statement Samatulla does not say that he and the other two appellants committed the dacoity. He only says that three names had been mentioned. The Public Prosecutor was evidently not satisfied with that statement; for he asked the permission of the Court to put further questions to the witness and be then asked as follows:
Did Samatulla tell you that he and Bikram and Kudratulla and two others had committed dacoity in the house of Chandulla Sarkar.
7. The answer was 'yes, he said so.' Mr. Roy who appears for the appellants contends that the Public Prosecutor having declared the witness hostile and cross-examined him it was not open to the prosecution to rely upon the evidence of this witness. The only effect of declaring the witness hostile and cross-examining him was to discredit the witness altogether. But it does not appear that the prosecution wished to cross-examine the witness for the purpose of discrediting his evidence. As far as can be seen what the Public Prosecutor did was to ask the permission of the Court to put questions to this witness which might be put by the adverse party. From this it cannot be said that he intended to declare the witness hostile and to cross-examine him. Section 154 read with Section 143, Evidence Act, provides that the Court may allow the party to put leading questions to his own witnesses. But that I do not think necessarily means that he must declare the witness hostile and cross-examine him. It is only when he declares the witness hostile and cross-examines him that he cannot rely on his evidence. It will be seen from a perusal of the evidence that what the Public Prosecutor desired to get from the witness was not a contradiction of what he had said but something in addition. He was not cross-examining his own witness but with the permission of the Court was asking him leading questions. That is not necessarily to cross-examine. This is clear from Section 154 itself which does not say that a person who calls a witness may cross-examine him in certain circumstances but that he might put questions to him which might be put in cross-examination by the adverse party. That is not the same as cross-examining him. If it were, the Code would have said so. Be that as it may, it has further been argued by Mr. Roy that the Judge has entirely failed to direct the jury as to how they should deal with the evidence of a co-accused. Here Mr. Roy stands on firmer ground. As far as can be seen from the charge of the learned Judge he gave no direction whatever to the jury on this point. It is clear from his charge that he did not tell the jury that the statement of Samatulla that ho himself, Bikram, Kudar Ali and two others were the persons who had committed the dacoity could only be used against Samatulla and therefore apparently has allowed it to be used, as in certain circumstances it can be used, against the co-accused, but he entirely neglected to draw the attention of the jury to a very important matter, namely, the way in which this evidence was extracted from the witness. The witness first of all made no mention whatever of the fact that Samatulla had made a statement to him in which he said that he, Bikram, Kudar Ali and two other persons had committed dacoity; and it is only in answer to the leading question by the Public Prosecutor which practically put into the witness's mouth the answer which lie wanted that the witness stated that Samatulla had told him that he, Bikram, Kudar Ali and two others had committed the dacoity. Neither does he give any direction to the jury as to how they should treat and the weight they should give to the evidence of an accused person as against his co accused. It is impossible for us to say that the omission of the Judge to bring this fact to the notice of the jury has not seriously prejudiced the two accused persons.
8. In these circumstances we must set aside the verdict of the jury and direct that the appellants be retried.
9. I agree with my learned brother that this conviction should be set aside and the two appellants retried.
10. I desire to add that in my opinion Sections 143 and 154, Evidence Act, read together do not give power to the prosecution to put leading questions to their own witnesses even with the assent of the Judge.
11. The meaning of Section 154 is that they may, with the permission of this Court, treat a witness as hostile and cross-examine him. The wording of Section 154 shows that the legislature did not intend to distinguish the law in this country from the law which obtains in England.