1. This appeal has arisen out of a case in which the accused were convicted under Sections 457 and 324, I. P.C., on the ground that they broke into the house of one Kali Charan Paramanik. The prosecution case is that on the night of 10th July 1929. the accused entered into the house of Kali Charan and that one of the accused, Ohedali Sheikh, who had a dagger in his hand, demanded of Kali Charan where he had kept his money and that thereupon Kali Charan told the accused that his money was in a large earthen jar on the floor of the south-western corner of the room; that when they advanced towards the jar he slipped away and stayed outside the hole which had been made in the wall of the room from the verandah; and that when the accused were coming out he caught the accused Sabed and while he was struggling with him Ohedali came from behind and attacked Kali Charan inflicting injuries on his arm and also injuries on his head and body and then the two accused went off. The principal ground on which this appeal has been filed is that inadmissible evidence was introduced, that this evidence was referred to in his charge by the learned Sessions Judge and that this may have influenced the jury adversely to the accused. The statement in the charge is that
In Sraban before last the accused Ohedali had enticed away Kali Charan's daughter Sarala aged 15 or 16 years with the result that she was made to adopt the life of a prostitute and that after that Kali Charan ceased to work as a barber for the accused; that on the night of 2nd July 1929, Kali Charan's two straw stacks were burnt down and that at one time he suspected Ohed and his nephew Akam.
2. As regards another occurrence which took place on 7th July, Kali Charan instituted a case against the accused on 9th July, whereas the present occurrence took place on the night of 10th July. The prosecution alleges that this complaint by Kali Charan constituted the motive of the accused for breaking into his house, so that that portion of the evidence may be admissible. But as regards the enticement of his daughter the same cannot be said inasmuch as no case was instituted on the complaint lodged by Kali Charan at the thana. That occurrence apparently has nothing to do with the present case and the fact that Kali Charan's daughter was enticed away by the accused would not suggest a motive for the present occurrence, nor does the fact that he ceased to work as the accused's barber seems a reasonable excuse for introducing evidence of a previous occurrence so damaging to the accused in the eyes of the jury, merely on the suggestion that this was the motive for the present occurrence.
3. There are also certain improbabilities about the occurrence as related by the prosecution witnesses. When the complainant got away he could easily have summoned to his assistance the neighbours who lived very close at hand, but he made no attempt to do so. Further the evidence as regards the recognition of the accused by Saroda is extremely weak inasmuch as she did not say at the time that she had recognized them. One of the witnesses says that she only told him that she had recognized the accused after the neighbours had left the house, and the fact that she had recognized the accused is not mentioned in the first information given by Kali Charan. Kali Charan also is not apparently a reliable witness. He stated in the first information that the accused were unable to carry off any property. But he now says that when he came back he found Rs. 50 missing from his earthern jar. It seems improbable that he could not have ascertained that this money was missing before he left for the thana. There are also other circumstances which tell against the probability of the prosecution story and the learned Sessions Judge appears to have entertained considerable doubt as to the prosecution case. When passing sentence he says, 'It is a verdict which is supportable upon the evidence and I accept it.' But it is clear from his charge that he did not agree with the verdict of the jury.
4. In the circumstances we think that conviction must be set aside on account of the admission of inadmissible evidence and we think that the case should not be sent back for retrial. The conviction and sentence are set aside and the accused will be acquitted and discharged.
5. I agree.