1. This is an appeal by nine persons who were convicted by the Sessions Judge of Faridpur, and sentenced to various terms of imprisonment, some of them Under Section 397 read with Section 395, and others Under Section 395, I.P.C. The jury before whom the trial was held were unanimous in their opinion that the appellants were guilty of the offences under the provisions of the law mentioned above. Two of the appellants were convicted Under Sections 397/395, I. P. C, and sentenced to undergo rigorous imprisonment for eight years each; the other seven were convicted Under Section 395, I. P. C., and sentenced to six years' rigorous imprisonment each. In support of the case for the prosecution, evidence was given in Court, which consisted mainly of oral evidence. In addition to the oral evidence, there were certain finds, in the shape of ornaments and other things which were removed by the dacoits as their booty, and there was also a confession by one of the accused persons, Ismail Sheikh, which was subsequently retracted. In the learned Sessions Judge's charge to the jury his decision on the question whether Ismail Sheikh's confession was voluntary or not, was not stated; nor did the Judge state to the jury that it was for them to determine whether it was true or not. It was left to the jury to determine whether the confession was or was not voluntarily made, or in other words, whether it was admissible. This was an error of law on the part of the learned Sessions Judge and the illegality in the charge in this behalf amounted to a serious misdirection resulting from an omission to give a proper direction according to law, calculated to mislead the jury in arriving at a proper verdict. It appears further that the learned Sessions Judge in placing the evidence of some of the principal witnesses to the occurrence before the jury stated as follows:
Under the law, no evidence can be given before you by the prosecution as to what these witnesses told the police, but the fact remains that the defence which is entitled to bring to your notice any contradiction between the statements there made and the statements made now, has not placed before you any contradictory statement as regards the account of the occurrence.
2. The exact import and significance of the Judge's statement to the jury referred to above is not clear to us; but we are of opinion that the impression conveyed by this statement in the charge to the jury was that the evidence of the witnesses before the Court to which it referred, found corroboration in the statements made by them before the police: and in that view of the matter there was, in our judgment, a misdirection to the jury by the Judge, inasmuch as the Judge was acting in contravention of the provisions of law as contained in Section 162, Criminal P. C. On both the heads referred to above, it appears to us to be clear that something wrong was said, or that something was said which would make wrong that which was left to be understood. In our judgment therefore the learned Judge's charge to the jury on those heads was defective in material particulars, and was such as misled the jury in coming to a conclusion on the weight to be attached to Ismail's confession, used as evidence in the case, as also to the evidence of the principal witnesses to the occurrence. We have arrived at the conclusion that the misdirection, or want of proper direction to which reference has been made above, vitiated the learned Judge's charge to the jury; and as we are of opinion that the appellants' case was not considered in proper light by the jury owing to the misdirections referred to above the verdict of the jury must be reversed.
3. It is not necessary for us to consider the other points raised before us on behalf of the appellants, in support of the appeal, relating to misdirections or non-directions contained in the learned Judge's charge to the jury, besides those mentioned above. It may be stated however that so far as those other points are concerned, they relate to matters of detail in the evidence, and the development of the case for the prosecution in view of what was mentioned in the first information report in the case, and to the way in which these matters were placed before the jury by the Judge. Although open to comment, we are not satisfied that there was such misdirection so far as the other minor points are concerned, or any non-direction which prejudiced the appellants in their trial, or resulted in injustice, so far as the appellants were concerned. Mention may also be made of a point raised before us in support of the appeal that the jury in the case was not properly constituted. This was with reference to a statement contained in the order sheet in the case to the following effect:
Cards of all the jurors summoned (10) are put in a bag. Cards are drawn out separately by lot from the bag,
4. It is not clear what the procedure followed by the Judge exactly was, but in view of the fact that no objection was taken before the Sessions Judge on, behalf of the accused, on the score of choosing of jurors or to the constitution of the jury, in the manner mentioned in the order sheet, we do not consider that there is any substance in the argument sought to be advanced before us relating to the question of the choosing of jurors and of the constitution of jury, seeing that there was not even a suggestion that there was any failure of justice on account of any irregularity in the procedure adopted in constituting the jury. In view of the conclusion we have arrived at, relating to the Sessions Judge's charge to the jury on two main heads referred to above, we set aside the verdict of the jury in this case, and with it, the conviction of the appellants and the sentences passed on them by the Sessions Judge. The appellants will be retried for the offences for the commission of which they were charged before the Court of Session. Appellant 9 Jogesh Chandra Das who has been released on bail must surrender; and we decline to grant bail to any of the appellants pending their retrial.