1. This is an appeal on behalf of the Local Government against the acquittal of eleven persons, of whom all were charged with having conspired to commit dacoity, and all but one were charged with having committed a dacoity. The trial took place before the Sessions Judge of Bankura and a jury. The Jury returned a unanimous verdict of acquittal with which the learned Judge agreed. We are asked to reverse this verdict and order a re-trial on the ground that there has been serious misdirection by the learned Sessions Judge in his charge to the Jury. We accept the contention on behalf of the Crown that the learned Judge was not as impartial as he should have been in those portions of the charge in which he discussed allegations made on behalf of the defence against the investigating Police Officers. He did not point out to the Jury, as he should have done, that the witnesses who accused the Police were, on their own showing, untruthful, as they were contradicting their statements made on oath before the Committing Magistrate, or that they were contradicted by other witnesses for the prosecution whose evidence deserved some consideration. As regards the more serious charge made against, the Police, that of ill-treating two women there was positive misdirection. During the search of the house of the accused Guiram his wife fainted. She was not examined as a witness but her son Goshta was allowed, to depose that she said next day that she fainted because the Police used force to her. This was hearsay and there is no legal evidence that Guiram's wife was ill-treated while there is evidence to the contrary. But in his charge to the Jury (paragraph 20) the learned Sessions-Judge refers to this episode, as if there were evidence to support the case, for the defence on this point. Then, as regards the woman Nidhu Dasi, daughter of the accused Nadiar Chand, she resiled from the evidence she had given before the Committing Magistrate, saying that she gave false evidence because she was ill-treated by the Daroga. There is, however, no evidence to support the suggestion that she was detached from her relations and kept fasting in a strange place for a night. The serious defect in the charge, when it refers to the conduct of the Police, is, that no distinction has been made between the suggestions put in cross-examination that are supported by evidence and those that are not, and also that the attention of the Jury has not been drawn to the direct evidence rebutting these suggestions.
2. But, though there was this misdirection this would not justify the reversal of the verdict of the Jury unless this misdirection has in fact occasioned a failure of justice. We have, therefore, examined the evidence and our conclusion after doing so is, that we ought not to order a re-trial. The case for the prosecution depends on the direct evidence of an accomplice and other evidence corroborating his, story. The confession of the accomplice was more probably due to a hope of escaping by turning Kings evidence than Police oppression, but even then the accomplice's story that he confessed through repentance is false. There are some improbable details in his story, for instance, he does not explain how the dacoits happened to meet on the night of the dacoity, though the arrangement had been to meet the previous night. His evidence is such that it would require very strong corroboration before it could be acted on, in fact the corroborative evidence would have to be almost sufficient for a conviction apart from the approver's evidence. This we do not find on the record. The most important evidence is as to the firming of certain property at the houses of various accused. But the effect of this evidence is seriously weakened by the unsatisfactory evidence of the identifying witnesses. They appear to have been ready to identify any article shown to them whether it was capable of identification or not. It is argued that there was misdirection in this respect, as the Jury were told that Abinash did not, at the first test identification, identify all the articles that he identified the second day. Though the written report of the Magistrate who held the second test identification shows that Abinash did not identify any article on the second day which he had not identified the first day, Abinash himself deposed that he and his brother Joy Ram identified some of the articles the first day and all on the second day. Whether this statement is true or false it cannot be said that Abinash's identification is free from doubt. There is also evidence of association, but this, even if believed, is not alone sufficient corroboration to support a conviction. One of the accused made a confession which lie subsequently retracted. Though the learned Judge summed up for an acquittal he did not omit to tell the Jury that they were Judges of the facts and should form their own opinion. We are not prepared to hold that the Jury's verdict was due to the misdirection in the charge and that, apart from this, then, they would not have come to the same conclusion. We accordingly dismiss this appeal. The bail bonds of the accused are discharged.