1. This is an appeal against a conviction and sentence under Section 412, Penal Code. Four persons were tried jointly in the Court of the Additional Sessions Judge of Faridpur on charges under Sections 395 and 412, Penal Code. The jury returned a unanimous verdict of not guilty in respect of one of the four accused persons, namely Ayesha Khatun and the learned Additional Sessions Judge accepted that verdict and acquitted that accused. The jury by a majority of 3 to 2 found the remaining three accused persons namely, Adu alias Adeluddin Faraji; Kamaruddin and Kalai Howladar guilty under Section 412, Penal Code. The verdict is silent on the point but apparently the jury found them not guilty on the charge of dacoity. The learned Additional Sessions Judge accepted the majority verdict of the jury and sentenced the three accused persons each to undergo rigorous imprisonment for four years under Section 412, Penal Code. All three convicted persons have appealed.
2. The case for the prosecution was that certain persons were proceeding in two boats with money to purchase jute. On the evening of 26th August 1943, they anchored their boats in a khal. They were attacked during the night by a gang of dacoits and their property was stolen. After information was given to the police, the usual investigation followed and three searches were made by the investigating police officer. On 29th August 1943, the house of the appellant Adeluddin was searched and an old umbrella with a bamboo stick was recovered from within the jute sticks kept on the loft of the building on the east bhiti. On 28th August 1943, the house of the appellant Kamaruddin Moral was searched and a number of articles were seized; three of these articles were subsequently identified; they are a tin tube, an umbrella and a money-bag and it is said that they are articles stolen in course of the dacoity. The tin tube and the umbrella were recovered not from the house of Kamaruddin but from a turmeric field adjoining that house and there is no evidence whatever to show how the articles found their way to the turmeric field. The money-bag was recovered from the possession of Isob Moral, brother of Kamaruddin. The third search was held on 30th August 1943, in the house of Kalai Howladar. In that search a black coloured old half-pant having three patches on the back was recovered which was not, however, the subject of the charge against Kalai Howladar. There was also seized one hand dao, but there is no evidence to show where exactly that hand dao was found and seized. The charge against Adeluddin under Section 412 was in respect of the umbrella found in the loft in his east bhiti house. The charge against Kamaruddin was in respect of the tin tube and the umbrella found in turmeric field and in respect of the money-bag found in the possession of his brother. The charge against Kalai Howladar was in respect of the dao said to have been found in his house. As the jury found the accused not guilty under Sections 395, Penal Code, we are not concerned with the charge under that head. With regard to the charge under Section 412, the learned Additional Sessions Judge made three references in his charge to the law on the subject. In the early part of the charge he observed as follows :
In establishing a charge under Section 412 the following facts have to be proved. That there was, in fact, a dacoity. That the accused or any of them retained in their possession any of the property which was carried away in the course of this dacoity and they so retained property in their possession with the knowledge that possession of the same was transferred in the bourse of a dacoity.
In the latter portion of the charge the learned Judge observed:
This is the evidence furnished by the find of the different articles and you are to consider whether in any of the four cases the evidence is sufficient to prove that the articles had really been stolen in the course of the dacoity and, further, whether they were found in exclusive possession of the respective accused. If you are satisfied on either of the above points, then, as already noted, you may infer from the fact of the articles having been recovered soon after the dacoity, that the accused or any of them retained possession of these articles with the knowledge that they had been stolen in the course of the dacoity.
3. The first reference to Section 412 in the charge is not inaccurate and was sufficient by way of introduction. The latter reference is seriously inaccurate. There is nothing in that to show that the jury had to be satisfied that the accused knew or had reason to believe that possession of the property had been transferred by means of dacoity. As this is essentially the only part of the charge in which the learned Judge attempted to apply the law to the facts said to be proved, the omission is material and we must hold that there was a serious misdirection in the charge.
4. The question is whether in these circumstances we should order a re-trial. With regard to the search in the house of Kamaruddin, as the learned Judge himself points out, there was literally no evidence to prove that Kamaruddin was in possession of any one of the three articles mentioned in the charge against him. In the case of Kamaruddin certainly the learned Judge ought to have directed the jury to return a verdict of not guilty of the charge under Section 412, as there was literally no evidence to support the charge. So far as Kalai Howladar is concerned, the only evidence is that a dao was found and seized on suspicion in the course of a search of his house. There is no evidence to show where and how it was seized; whether in a room occupied by him or in a room occupied by some other person; in other words, there is no evidence in the case of Kalai Howladar also that he was in possession of the dao. With regard to the charge against Adeluddin the only article said to have been found in his possession was an umbrella. The learned Judge pointed out that the evidence of identification was unsatisfactory and the evidence to prove Adeluddin's possession of the umbrella in the loft, as alleged, was very unconvincing. In my opinion, there is no justification in the present case to order a re-trial.
5. Before we leave the case, I should like to refer to the procedure adopted by the learned Additional Sessions Judge in trying Kamaruddin in his absence. It appears that Kamaruddin was produced at the opening of the case; he was then segregated from the other accused and represented by a pleader throughout and was then ultimately produced again in Court only to hear the verdict and receive the sentence. The pleader for Kamaruddin was questioned under Sections 342 and his statements were treated by the learned Magistrate as evidence. Section 540A, Criminal P. C, permits a Magistrate in special cases to proceed with a trial in the absence of the accused. There is no provision for examining the pleader of the accused under Sections 342 in any case. It seems to me that the Magistrate exercised his discretion wrongly in the present case in trying Kamaruddin in his absence. The result, in my opinion, is that the appeal must be allowed. The convictions and sentences should be set aside and the appellants should be acquitted. Let them be discharged from their bail bonds.
6. I agree with my learned brother that the accused should be acquitted. The learned Judge, it is true, in the first part of his charge correctly states the law as regards the offence made punishable under Section 412, Penal Code; but later in dealing with the evidence regarding the complicity of each of the accused person he fails to draw the attention of the jury to the elements which go to make up this offence. I would impress upon the learned Judge that it is not sufficient merely to define an offence correctly before the jury. It is the duty of a Judge to direct the jury how to apply the law to the particular facts of the case; that is one of the most important elements in the directions to the jury. The evidence in this case was entirely insufficient to bring home the charge to the accused, and it was, in my opinion, the duty of the Judge to direct an acquittal so far as the charge under Section 412 was concerned. Instead of doing this, the learned Judge merely placed the evidence before the jury and offered them no guidance as to how they should apply the law to the facts proved by the evidence. I also agree with my learned brother that the trial of Kamaruddin has been bad inasmuch as he was not examined in accordance with the provisions of Sections 342, Criminal P. C. The law, it is true, provides for a trial to proceed in the absence of the accused (vide Section 540A); but the section does not permit the trial to proceed without the presence of the accused at stages where under the law the presence of the accused is impejrative. One of these stages is when the accused is required to be examined in accordance with the provisions of Sections 342, Criminal P. C. In my opinion, the Court cannot dispense with the presence of the accused at this stage.