1. The appellants, Abdul Gafur Khan alias Kala Chand Khan and Abdul Sattar Khan, alias Chotu Khan, have been convicted, on a unanimous Verdict, under Section 395, Indian Penal Code, and sentenced to undergo ten gears rigorous imprisonment each.
2. The inmates of the house in which the dacoity is said to have been committed were Abdul Jabbaf, the complainant, a boy of fifteen, his elder brother Abdul Nabi, another brother, two sisters, one of whom is the witness, Alekjan, a girl of eleven, their mother, some, servants, and a beggar woman.
3. The occurrence is said to have taken place on the night of September 4th and information was lodged at the Thana seven miles distant, on the morning of the 6th.
4. The description of the dacoity is of the usual kind; but there is this singular feature in the case that the appellant, Kala Chand Khan, has given his daughter in marriage to Abdul Nabi just mentioned. Relations are strained because Abdul Nabi has married a second wife, and Kala Chand's daughter is living with her lather, The second appellant is brother of the first.
5. The case for the prosecution is that Kate Chand was recognised at the tame of the dacoity by Abdul Jabbar, and by no one else, while Chotu Khan was recognised by Abdul Jabbar and his mother and his sister and a neighbour named Mushim. Apart from this oral evidence, there is nothing whatever to show that the appellants joined in committing, the dacoity.
6. The objections to the charge are threefold. First, it is urged that the whole charge is so condensed that it is difficult to understand exactly what the learned Judge really said. Secondly, it is said that there ought to have been a reference to the fact that the prosecution did not examine all the servants and the beggar woman, and that there ought to have been a direction as to the inference to be drawn from the emission.
7. Thirdly, the manner in which the learned Judge dealt with the evidence of identification is criticised as being incomplete and unlikely to help the Jury in arriving at a right conclusion.
8. With the first objection I agree. It is true that the law requires a Judge only to record the heads of his charge; but the meaning of those words have often been explained in this Court, and I should like to draw the attention of the Judge to the case of Queen v. Kasim Shaikh 23 W.R. Cr. 32, I have no doubt that the learned Judge could from his brief notes prepare a full statement of what he said to the Jury, but it is hardly possible for others to do so.
9. As to the second objection, I think the point is one which ought not to have been overlooked by the Judge but the case is not one in which it would be reasonable to hold that the witnesses not examined were really important witnesses, and on this ground alone I should not be prepared to hold that the charge was bad.
10. The third criticism, which is to some extent a repetition of the first, has much more substance. The Judge's comments on the evidence of identification like the remainder of the charge are recorded in a form which makes it difficult for us to know what was actually said.
11. In dealing with the evidence of identification there were several points which deserved careful treatment. There was the relationship between the parties, with the question of probability which it raised J there was the long delay in reaching the Thana; there was the fact that only Abdul Jabbar pretended to recognise Kala Chand, and Abdul Jabbar is a mere boy, and the defence suggested that he had hidden himself in a place from which, he could not see the dacoits; there was the absurd story of Alekjan that she recognised Chotu Khan by his feet: there was the contradictory evidence about Mushim's pretended recognition; there was the evidence of neighbours about what they did and did not learn when they came on the scene--all of it coupled with the fact that not a word was reduced to writing for nearly thirty-six hours.
12. I do not mean that the learned Judge did not refer to these points, for he did, but, in my opinion, his comments, so far as we can guess what they were, did not give the Jury the help that they needed.
13. It would be tedious to deal with this matter at greater length. For the reasons given, I think the charge is vitiated by misdirection.
14. It remains to consider what order. we should pass. Against the first appellant there is nothing but the evidence of Abdul Jabbar, and against the second appellant nothing but the evidence of Abdul Jabbar and his mother, after eliminating, as we must, the evidence of Alekjan and Mushim. In the strained relations between the parties it seems to me very doubtful whether those two witnesses should be believed when there is not a scrap of independent evidence to, support them, and my distrust is increased by the extraordinary delay that took place in going to the Thana. In these circumstances, I think the case is one in which there ought hot to be a re-trial. Accordingly, I set aside the verdict of the Jury and acquit the two appellants.
15. I agree.