Ameer Ali and Hill, JJ.
1. Eight persons were charged in the Sessions Court of Mymensingh under Sections 395 and 412 of the Indian Penal Code and tried with a jury on the 3rd of December 1897. Four of the men so charged were acquitted; against the remaining four named, respectively, Taju Pramanik, Kasir Khan, Shahabatullah alias Sadatullah and Surat Khan the jury returned an unanimous verdict of guilty. Surat Khan was convicted under Section 412 and sentenced by the Additional Sessions Judge to six months' rigorous imprisonment; Taju Pramanik was convicted under Section 395 and sentenced to three years' rigorous imprisonment; whilst Kasir Khan and Shahabatullah alias Sadatullah were convicted under Section 395 read with Section 75 and sentenced to four and five years' rigorous imprisonment respectively.
2. On appeal it has been contended before us that the verdict of the jury was erroneous owing to the misdirection of the learned Sessions Judge in not calling their attention either to the ingredients which constitute the offence of dacoity or to the evidence affecting the appellants in relation to the charge under Section 395. It is said that the learned Sessions Judge merely read to the jury the definition of dacoity and left it to them to apply the law; and that considering the complex character of the offence he ought to have explained the law to the jury with special reference to the facts proved in the case. It is also contended that the learned Judge was wrong in admitting against the appellants the statements of two men who were also accused in the case and certainly in not calling the attention of the jury to the fact that those statements were not admissible against the appellants, and that no weight should be attached to them in considering the case against any of the accused other than those making them. There are other contentions raised in connection with the question of misdirection, to which we think it unnecessary to refer, as, in our opinion, the verdict must be reversed on the two grounds to which we have already adverted.
3. In our opinion it was not sufficient for the Judge merely to read to the jury the definition of dacoity, and to leave it to them to find out whether the evidence produced for the prosecution made out a case under Section 395 against the accused. It was the duty of the Judge to call the attention of the jury to the different elements constituting the offence, and to deal with the evidence by which it was proposed to make the accused liable under the section. His failure to do so, in our judgment, amounts to misdirection. The charge of the learned Sessions Judge under Section 412 seems to us equally defective. In the case of Queen-Empress v. Balya Somya (1890) I.L.R. 15 Bom. 369 the accused were charged with retaining stolen property under Section 411 of the Indian Penal Code. The Sessions Judge, in his charge to the jury, merely directed them to find whether the property was stolen, and whether it was retained by the accused. The Bombay High Court held that the charge was defective and amounted to a misdirection. It appears to us that in the present case also it was incumbent on the Sessions Judge to have explained to the jury that, in order to convict the accused under Section 412, it was necessary to find they retained or had possession of the goods with guilty knowledge. We think also that the Judge ought to have brought to the notice of the jury the fact that the appellants, at the time of the search, were in Police custody. It would then have rested with the jury to draw any inference of fact they chose regarding the bond fides of the search.
4. As regards the second contention, namely, the improper admission of the statements made by some of the accused, it is enough to say that those statements do not amount to a confession. They do not in any way incriminate the persons making them. The learned Sessions Judge, in his charge to the jury, stated as follows: 'There being no evidence against Basir and nothing against Haran, but an uncorroborated statement of the accused Wazir, on which it is not safe to rely without corroboration, I direct you to return a verdict of not guilty against them.'
5. But the Judge did not direct the jury that in dealing with the evidence against the present appellants they were to omit entirely from consideration the statements made by Fakir and Uzir, and we are distinctly of opinion his failure to do so has resulted in a miscarriage of justice. Those statements, without a direction from the Judge to the effect that they were not admissible in evidence against any person other than the men making them, must have weighed with the jury in bringing in a verdict of guilty against the present appellants, certainly against Shahabatullah alias Sadatullah, against whom there is no evidence on which he could possibly be convicted under Section 395 or Section 412.
6. Upon these grounds we are of opinion that the verdict of the jury must be reversed, and we accordingly reverse it. The verdict being thus set aside, we have under Section 423 the power to deal with the case upon the facts; and after going through the evidence we are of opinion that Shahabatullah alias Sadatullah must be acquitted and the other two appellants retried.
7. Mr. Leith however contends on the authority of the case of Wafadur Khan v. The Queen-Empress (1894) I.L.R. 21 Cal. 955 that we have no power to consider whether the evidence is sufficient or not against any of the accused, and the only thing we can do, if we find the verdict must be reversed, is to direct a retrial. No doubt this proposition is broadly laid down in that case, but we are not prepared to agree with the view of the law enunciated there. We do not, however, think it necessary to refer the question to a Full Bench as, in our opinion, the course taken by the full Court in the case of The Empress v. O'Hara (1890) I.L.R. 17 Cal. 642 fully warrants the view we take of the law. The same course was adopted by the Bombay High Court in the case of Regina v. Nauroji Dadabhai (1872) H. C. 9 Bom. H.C. 358 and by this Court in that of The Empress v. Huribole Chunder Ghose (1876) I.L.R. 1 Cal. 207. These cases are not referred to by the learned Judges in Empress v. Wafadur Khan who proceed simply on the principle laid down in Makin v. The Attorney-General for New South Wales (1894) L. R. A. C. 57. We admit that theoretically the principle enunciated in Makin's case is of considerable importance. But it seems to us the policy of the law in this country is different, and that the Legislature has, with a distinct, purpose, vested the Appellate Court with very large powers. A reference to Section 423 of the Criminal Procedure Code will make clear our meaning on this point. That section deals with the powers of the Appellate Court and runs as follows:
The Appellate Court shall then send for the record of the ease, if such record is not already in Court, after perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, ii he appears, and in case of an appeal under Section 417, the accused, if he appears, the Court may, if it considers there is no sufficient ground for interfering, dismiss the appeal, or may
(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law.
(b) In an appeal from a conviction (1) reverse the finding and sentences and acquit or discharge the accused, or order him to be retried, by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial; or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence; or (3) with or without such reduction, and with or without altering the finding, alter the nature of the sentence, but not so as to enhance the same.
(c) In an appeal from any other order, alter or reverse such order.
(d) Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
9. Clause (d) restricts the grounds on which the verdict of the jury can be reversed or altered. But once the verdict is out of the way, there is no restriction on the powers of the Court to deal with the case of which it has complete seizin, in any of the manners provided in that section. For example, taking Clause (b) the High Court, as the Appellate Court, has the power either to reverse the finding and sentence and acquit or discharge the accused, or order him to be retried, or alter the findings, maintaining the sentence, or, without altering the finding, reduce the sentence. Nowhere does the law lay down that, when the verdict of the jury is set aside, the Court must necessarily direct a new trial.
10. In this view it seems to us that a reference to a Pull Bench will only cause unnecessary harassment to the appellants. As already stated, against Shahabatullah alias Sadatullah there is no evidence whatsoever to warrant a conviction. We accordingly set aside his conviction and acquit him and direct that he be discharged. We also set aside the conviction of the other two, Taju and Kasir and in their cases direct a retrial.