1. The two appellants were tried by the Additional Sessions Judge of Bakarganj with the aid of a jury on several charges. The majority of the Jury found the first appellant guilty of an offence punishable under Section 364/34, Indian Penal Code and also of an offence punishable under Section 147, Indian Penal Code. For the first offence he was sentenced to seven years' rigorous imprisonment and for the second offence to two years' rigorous imprisonment, the sentences to run concurrently. The second appellant was convicted only of an offence punishable under Section 147, Indian Penal Code, and for that he has been sentenced to two years' rigorous imprisonment.
2. On behalf of the appellants three points have been pressed. The first relates to the acquittal of one Seher Ali who was put on his trial with the appellants. After the conclusion of the case for the prosecution the learned Additional Sessions Judge directed the Jury to return a verdict of not guilty of any offence in the case of this accused. It is clear that in so doing he intended to act under Clause (2) of Section 289, Cr. P.C. From his charge to the jury it appears that he gave this direction because he held that there was no evidence worth the name against Seher Ali. In so doing we hold that he committed an error of law. No evidence worth the name is under the law very different from no evidence. Though the learned Sessions Judge held that on account of the contradiction of the witness who implicated Seher Ali that evidence could not be believed, he was not justified in saying that there was no evidence against him. There was evidence, and it was for the jury and not for the Judge to say that this evidence was such that no reliance could be placed upon it. But in our opinion this error of law was of no great importance. Had the learned Judge continued the trial against this accused and charged the jury as he did it is probable that Seher Ali would have been acquitted. Had he been convicted by the Jury we have no doubt the learned Judge would have made a reference to this Court under Section 307, Cr. P.C., which would have ended in the acquittal of this accused. We certainly cannot accept the contention that this action of the learned Judge in any way prejudiced the other accused in their trial. The fact that one of the three accused was acquitted in this way cannot have affected the Jury and made them more ready to convict the appellants before us.
3. The second point urged is that there was non-direction amounting to misdirection because the learned Judge omitted to prominently put before the Jury the fact that neither in the information first given to the police by Mafezuddi, chowkidar, of which an entry was made in the station diary nor in the formal First Information that was subsequently lodged by Saheb Ali, howaldar, do the names of either of the appellants appear. In many cases the omission of the names of the accused, in their trial, in the First Information given to the authorities, is a very important point in their favour. But in the present case it appears to us that the point was of no substantial importance. From the statement recorded in the diary it appears that Mafezuddi, at the time he made that statement, had no information as to who were the assailants. Sahed Ali's statement in the First Information was that be recognized two of the assailants, and that was the story which he also told in his evidence. We have been through the evidence of both Mafezaddi and Sahed Ali, and there is nothing to indicate, nor does any suggestion appear to have been made in their cross-examination, that at the time they made these statements to the police they had information of the names of any accused whose names do not appear in these entries. That being so we are unable to hold that the omission of the learned Judge to draw special attention to this point amounted to misdirection.
4. The last point urged is that the heads of charge do not show that the law was properly explained to the jury. It is stated in the charge that Sections 299, 300, 302, 141, 146, 147, 148, 362, 364 and 34 are read and explained. This Court has frequently condemned a statement of this kind in the heads of charge if it is not shown in what manner the sections referred to were explained. But in the present case the heads of charge do show the manner in which the essential points were put to the jury. The details of the points which the prosecution must prove to establish the charge under Sections 302 and 149 are explained in one portion, and later on there is set out an explanation of the charge under Section 164-34. In the present case there was no real difficulty in applying the law to the facts. If the facts alleged by the prosecution were proved it was clear that the charges were established. We hold, therefore, that there is no misdirection on this point. The case is one in which the appellants have been convicted on the evidence of a single witness corroborated by his statements made at different times. Whether that evidence was sufficient for a conviction or not was essentially a question for the Jury.
5. The sentences passed are not in our opinion too severe.
6. The appeal is dismissed.