1. The two appellants Kashemali and Maidan Parmanik with seven other men were put on their trial on a charge of dacoity under Section 395 and also under Section 412, I.P.C. The trial was held with the aid of a jury. The jury found two of the accused men not guilty and the remaining seven persons were found by them to be guilty. Kashemali and Maidan the two appellants before us were among those seven. As regards Maidan the verdict of the jury was unanimous. As regards Kashemali however it was divided-three jurors being of opinion that the man was guilty while the remaining two being of opinion that he was not guilty. The learned Judge accepted this verdict of the jury and sentenced Kashemali under Sections 395 and 412, I.P.C., to five years' rigorous imprisonment and he sentenced the other appellant Maidan also to five years' rigorous imprisonment under Section 395, I.P.C.
2. On the night of 15th January 1931 there was a dacoity in the house of one Tusuf, doctor. A pretty large number of men broke into his house, assaulted Yusuf, his wife and son, broke open the chest and an almirah and took away a considerable amount of money about Rs. 7,000 altogether from inside the chests. The occurrence took place at about 3 in the morning of 15th January and an information was lodged at the thana by one Serajul Huq, a nephew of Yusuf, doctor, on the same day at 9-30 a.m., the thana being six miles from the place of occurrence. In the first information report the name of one of the dacoits Sekandar was mentioned. An investigation followed and a number of arrests were made and as many as nine men were put on their trial with the result I have stated before. The evidence against the appellant Maidan consisted of the retracted confession of one of the dacoits Naimuddin by name and the test identification at which Maidan was identified. The evidence against the other appellant Kashemali consisted of the retracted confession of Naimuddin and the evidence of two men Ramproshad and Makbulali.
3. On behalf of the appellants the Judge's charge to the jury has been assailed before us on more than one ground. So far as the appellant Maidan is concerned the charge was attacked on three grounds. It was said that although according to the evidence of Serajul Huq (the man who lodged the first information report at the thana) Serajul Huq knew Maidan as a man of Dukhibari, in the first information report he did not say that any man of Dukhibari had been among the dacoits. But this fact was, as the learned Judge's charge to the jury would show, actually put before the jury. It was said that although according to the first information report, P.W. 3, Yusuf's wife, would be able to identify the man who had inflicted injuries on her, Yusuf's wife in her evidence in Court identified not only the man who had inflicted injuries on her but another man and the contention before us was that this fact was not put before the jury. Here again the charge would show that the learned Judge did tell the jury what evidence Yusuf's wife had given in Court, and he did tell the jury also that in the first information report Serajul Huq had stated that Yusuf's wife would be able to identify the person who had inflicted injuries on her.
4. As regards Maidan the third contention before us was that the learned Judge did not tell the jury that although one Aziz knew Maidan and although Aziz had seen the chowkidar who had accompanied Serajul Huq to the thana before Serajul Huq went there, Maidan's name found no mention in the first information report. This argument would have some force in it if there had been any evidence to show that there had been some conversation between Aziz and Serajul Huq in connexion with Maidan. But the learned advocate for the appellants had to admit that there was no such evidence on the record of the case. All the three points taken on behalf of the appellant Maidan must therefore fail.
5. The case of the other appellant Kashemali stands however on a different footing. The evidence against this man, as I have stated before, consisted of the retracted confession of Naimuddin and the evidence of the two persons Ramproshad and Makbulali by name. Ramproshad was the person who by an appointment had met the dacoits before the dacoity took place at a place called Raipur and when on arrival there he found out what the object of the men was, he came away. According to him, Kashemali on the next day told him that on the previous night he (Kashemali) had committed a dacoity. Makbul was the man to whom Naimuddin admitted having with others committed dacoity in Yusuf's house and complained that his companions had given him no share of the booty whereupon Makbul took down the names of the persons who according to Naimuddin had committed the dacoity on a slip of paper and this slip of paper contained the name of Kashemali as one of the dacoits. The slip of paper was seized from Makbul after his arrest during the police investigation. Ramproshad in his statement recorded under Section 104, Criminal P.C., had not mentioned Kashemali as the person who had come to him and admitted having committed a dacoity on the previous night. According to that statement it was one Kumar who had come and made that statement to him.
6. This fact the learned Judge did not put to the jury, a fact which in our opinion, was a very important one, in considering whether Ramproshad was a truthful witness or not. The learned Judge told the jury in a way that both Ramproshad and Makbul were no better than accomplices. But the learned Judge although when telling the jury that before there could be a conviction on a retracted confession of a co-accused there must be corroboration on material particulars, he pointed out to the jury that the retracted confession of Naimuddin had been corroborated by the evidence of Ramproshad and Maqbul omitted to tell them, that this corroboration must come from independent witnesses and that it would not do if that corroboration would come from evidence which in itself was tainted as the evidence by an accomplice undoubtedly is. The evidence against Kashemali as I have stated more than once before consisted of the retracted confession of Naimuddin and the statements of the accomplices Ramproshad and Makbul and that being so, the omission of the learned Judge to give a full and sufficient warning to the jury as to the circumstances under which a conviction can be based on a retracted confession of a co-accused amounted, in my opinion, so far as Kashemali is concerned, to a serious nondirection. We would therefore dismiss the appeal of the appellant Maidan Pramanik and allow the appeal of Kashemali. Kashemali's conviction and sentence are set aside. He is acquitted and directed to be set at liberty at once.
7. I agree.