1. The appellants were tried for the commission of offences Under Sub-section 395 and 120.B/395, I.P.C., and were, on the unanimous verdict of the jury, before whom the trial was held, convicted by the learned Sessions Judge of Tipperah, and sentenced to various terms of imprisonment. The learned Judge has in his charge to the jury, dealt with the case very fully but we regret to notice that there are certain misdirections in the charge on account of which the verdict of the jury has to be set aside and a retrial of the case against the appellants directed by us. It may be mentioned at the outset that the case for the prosecution depended mainly, if not solely, upon the statements of an approver and those of an accused person who had at one time confessed his guilt, but had subsequently retracted confession.
2. In regard to the confessional statement of the accused Roshan Ali, which was retracted at the trial, what was stated by the learned Judge in his charge to the jury was that the statement was admitted in evidence by him (the Judge), but that it was open to the jury to reject it if they considered that it was improperly recorded or made on account of inducements or threats. It was then said that in the event of the juror's accepting Roshan Ali's statement, if that was accepted in evidence, it was evidence against Roshan Ali and that as far as he was concerned he might be properly convicted upon it without further corroboration. With reference to the statements of Roshan Ali and to the statements of the approver, the learned Judge charged the jury as follows:
If Roshan Ali's statement is admissible therefore you have before you statements of two accomplices. (The confessional statement of the approver has been admitted only as corroboration and contradiction of his evidence before you, and need only be considered on those points: It is the evidence of the approver in Court to which your main attention should be devoted.) Now can these statements of the two accomplices be used to corroborate each other? The answer to that question depends upon whether the two statements are independent. Obviously, if it could be shown that Karima and Roshan Ali had agreed among themselves to confess in the hope of saving their own skins, one statement would be virtually useless as corroboration of the other, but of this there is no evidence and indeed no suggestion. Also, if it could be shown that one statement was obtained fraudulently (as alleged by Roshan Ali) and compiled by the police expressly for the purpose of corroborating the former one, then the two could not properly be used to corroborate the other. In this case, Karim's statement was recorded several hours before Roshan Ali's statement. (I refer now to their statements to the police.) It has not been denied that the police officers knew of Karim's statement when Roshan Ali was arrested: indeed they must have done, and there is no reason why they should not but it must obviously have been a lengthy statement and there is nothing to show that the police officers were carrying copies of it about in their pockets, although there is every certainty that they had the gist of it in their minds. But if, as has been alleged, the police concocted Roshan Ali's statement surely the loose threads of Karim's statement would have been gathered up in Roshan Ali's. Let us take an obvious example to see if this has been done: it is in evidence that Karima's description of the Dhupi who accompanied the dacoits is indefinite in the extreme. Now Roshan Ali is of the party living south of Harina, and Karim one of the Chandpur men ; the former person therefore would be more likely to have knowledge of this Dhupi. The police, had they been engaged in substantiating Karim's statement by the concoction of a false one purporting to come from Roshan Ali, would have at least repeated the reference to the Dhupi so far as it transpires in Karima's statement and would have included any more precise identification which had come to them in the course of their enquiries. Yet far from the statement including a more detailed description of this Dhupi, there is no mention of one whatsoever in Roshan Ali's statement which only refers to two Hindus, a Singh and a Shah who came with the Chandpur party. Is there anything to show that there is any connection between Roshan's Ali's statement and Karim's? If there is not and if you hold that the two statements were made independently of each other, without any connecting link (between) them forged either by themselves or by the police, then the two statements may be used mutually to corroborate the other.
3. The position must now be accepted as settled that the Judge could not leave it to the jury to decide whether a confessional statement was voluntary or not. It was not open to the jury to reject the statement or accept the same in evidence. The Judge was required to decide the question of admissibility of the statement on a decision come to by him that it was voluntary or not ; after the Judge's decision on the question of admissibility of the confessional statement depending on its voluntariness has been given which was binding on the jury as a decision on a question of law, the Judge was required to ask the jury to say whether the confessional statement if it was held to be voluntary was true or not, upon the materials before the Court, and so to give their verdict on the question of fact whether the statement was true or not. This was not what was done in the case before us; and the jury received no proper direction from the Judge on a very vital question in the case.
4. In our judgment, regard being had to the view taken by this Court in recent decisions bearing upon the question arising for consideration in connexion with matters referred to in the learned Sessions Judge's charge to the jury noticed above, there are material misdirections in the charge. The learned Judge's direction to the effect that Roshan Ali might be convicted upon his own statements which had subsequently been retracted, without further corroboration, is not also, in our opinion, in accordance with the trend of judicial opinions on the point. We hold that the learned Judge's charge to the jury in this behalf amounts to misdirection. In regard to the statements referred to by the learned Judge in his charge to the jury as 'statements of two accomplices' we are not satisfied that proper direction was given to the jury by saying:
Now, can these statements of the two accomplices be used to corroborate each other? The answer to that question depends upon whether the two statements are independent.
5. In our judgment, no definite and clear indication was given to the jury with reference to the two statements: the statement of the approver and the retracted confession of Roshan Ali; and the jury were apt to be misled by the direction given by the Judge in this behalf. It appears further that the learned Judge referred to the statements of Roshan Ali and Karim to the police. Although it was sought to be argued before us by the learned counsel for the Crown that the Judge did not and could not possibly refer to the statements to the police, we are not at all satisfied that the reference to the statements to the police, when the Judge puts the matter like this: 'I refer now to their statements to the police,' had any other meaning than the obvious one that he was placing before the jury the statements contained in police papers examined by him, for the purpose of corroboration or otherwise of the confessional statements of Karim and Roshan Ali used as evidence in the case. The reference to the statements to the police as mentioned by the Judge in his charge to the jury, was in direct contravention of the provisions contained in Section 162, Criminal P.C., and such reference was not permissible under the law. In our judgment, the statements in the police papers to which reference was made, materially influenced the jury in the matter of their verdict as to the nature of the confessional statements in this case, upon which the case for the prosecution mainly rested.
6. As indicated above, there are, in our judgment, material misdirections in the learned Judge's charge to the jury in the case before us; misdirections which could not but mislead the jury, and operate to the prejudice of the accused persons placed on their trial before the Court of Session. The conclusion we have come to, is that the ends of justice require that the verdict of the jury against the appellants in this Court should be set aside and we direct accordingly. The appeals are allowed. The verdict of the jury and with it the conviction and sentences passed on the appellants by the learned Sessions Judge of Tipperah, are set aside, and we direct the retrial of the appellants on the charges framed against them in the Court of Session. V.S.