C.C. Ghose, J.
1. The appellants before us are two in number. They were charged along with four other accused persons before the learned 2nd Additional Sessions Judge of Bakerganj and a jury with having committed offences under Sections 120B, 395 and 396 of the Indian Penal Code. The jury did not bring in a verdict against the accused under Section 396, but, so far as the two appellants are concerned, they brought in a verdict of gulty under Sections 395 and 120B, Indian Penal Code. The learned Judge agreeing with the verdict of the jury sentenced each of the two appellants to undergo seven years' rigorous imprisonment.
2. In this appeal which has been argued by Mr. Taluqdar five points have been taken for the purpose of showing that the learned Judge's charge to the jury is open to the comment that there have been misdirections in it and for the purpose of inducing us to interfere with the verdict of the jury.
3. Mr. Taluqdar's first point is that in the events which happened the deposition of the witness named Jamila Khatun could not be used at the Sessions trial as the accused had no opportunity of cross-examining this witness before she died. It appears that a few days after the date when Jamila was examined before the committing Magistrate, she died. At the time when her deposition was taken before the committing Magistrate there can be no question that the accused had the right and opportunity of cross-examining her in terms of Section 33 of the Evidence Act. The record shows that the accused did not exercise their right and did not avail themselves of the opportunity of cross-examining this witness immediately after her examination-in-chief before the committing Magistrate had been finished. That being so, having regard to the provisions of Section 33 of the Evidence Act, in my opinion, there is no substance whatsoever in this contention, and it must be negatived.
4. The second point is that, having regard to the circumstances just alluded to, the learned Judge was wrong in refusing to allow the Sub-Inspector of Police to be cross-examined on the statements said to have been made to him and recorded by him under the provision of Section 161 of the Criminal P.C. It is argued that having regard to the events which had happened, the accused should have been allowed an opportunity of repairing the omission, if any, mode by them in not cross-examining the witness Jamila Khatun immediately after her examination-in-chief in the committing 'Magistrate's Court by being given an opportunity later on in the Sessions Court to cross-examine the Sub-Inspector of Police. It is very important to bear in mind in this connexion when one deals with a contention like this, the terms of Section 162 of the Criminal P.C. Now, looking at the terms of Section 162 and bearing in mind the circumstances of this case the conclusion to which I come is that the terms of Section 162, if applicable at all, could only have been applicable, during the stage of the enquiry before the committing Magistrate and that it could not in any view of the matter be held to be applicable when the case was in the Sessions Court. In my opinion therefore the learned Sessions Judge did not err at all in refusing the prayer of the accused to be allowed to cross-examine the Sub-Inspector. The second contention must therefore be negatived.
5. Mr. Taluqdar's third point is that the learned Judge in advising the; jury, on the question as to whether in arriving at a decision on the evidence adduced in the case they should give effect to any reasonable doubt, explained that 'reasonable doubt' could only arise if there was defect in the prosecution evidence. By the word 'defeat' I understand the learned Sessions Judge to have meant if there was something in the nature of a lacuna in the evidence adduced on behalf of the prosecution. The learned Judge might not according to Mr. Taluqdar have been very felicitous in his expression ; but what he meant is quite clear, and it is also equally clear that he could not have meant anything such as has been suggested to us by Mr. Taluqdar. The learned Judge told the jury in so many words that if the evidence on the side of the prosecution was full and sufficient in all particulars, there could not arise any room for 'reasonable doubt,' but that if the evidence adduced on behalf of the prosecution was such as to convey to the minds of the jury an impression that something was lacking, in that case there would be room for 'reasonable doubt.' There is therefore, in my opinion, no substance whatsoever in Mr. Taluqdar's third point.
6. The fourth point is that the learned Judge was not correct in telling the jury that each one of the juror was to think for himself as to what the conclusion should be on the evidence adduced in the case and that it was the duty of the foreman to collect the separate opinions of the jury. What the learned Judge really meant was, in my opinion, this: The learned Judge told the jurors that each one of them was expected to consider the evidence for himself; in other words they were not to follow anyone in the jury blindly; but they were to exercise their own independent powers o judgment and reasoning for the purpose of arriving at a just conclusion on the evidence in this case. The learned Judge nowhere suggested that there should not be joint deliberations after the jurors had thought out for themselves what their conclusions would be on the evidence adduced in the case. The passage quoted from the learned Judge's charge does not bear the construction which Mr. Taluqdar seeks to put on it and in ray opinion, it can only bear that construction if the words are tortured altogether.
7. Mr. Taluqdar's fifth point is that in this case the learned Sessions Judge ought to have excluded the confession of Naimuddy altogether. His reasons in support of this argument are these : It appears that the confession of Naimuddy was not recorded in open Court as rife should have been in accordance with the Circular Orders of this Court. It was: recorded before Court hours at the residence of the Sub-Divisional Officer and the reason suggested by the Sub-Divisional Officer for the procedure adopted by him was that he wanted to finish the recording of the confession of Naimuddy before he began his work in Court at the usual hour; in other words, it is suggested that the Sub-Divisional Officer did not record the confession of the accused Naimuddy in open Court because he thought that a part of his time in Court would be occupied thereby and that it would interfere with his ordinary Court work.
8. I may state at once that the reasons advanced by the Sub-Divisional Officer for the procedure adopted; by him do not commend themselves to me at all. It was the clear duty of the Sub-Divisional Officer to comply with the rules and directions to be found in the Circular Orders of this Court and he should have recorded the confession of Naimuddy in Court and during Court hours. But the point that now requires our attention in this case is that whether, having regard to what had happened, namely, that the confession was recorded at the residence of the Sub-Divisional Officer and not in open Court, that is sufficient to induce us to hold that there has been a failure of justice in that the confession so recorded has been placed before the jury and that therefore we should interfere with the verdict of the jury. The confession was retracted subsequently by Naimuddy and; the learned Judge cautioned the jury as regards the value to be attached to a retracted confession. He told the jury, as he was entitled to do, that the retracted confession should not be paid any attention to unless the jury came to the conclusion that that confession was supported by independent evidence appearing on the record. He also told the jury that that confession, if they were satisfied that it was supported by independent evidence on the record, could only be used against Naimuddy.
9. These were the only cautions that the learned Sessions Judge could have given to the jury, and he did give them at length. The learned Judge also, drew the attention of the jury to the irregularity such as it was that was committed by the Sub-Divisional Officer. In these circumstances, having regard to the verdict which the jury brought in, a verdict of a majority of 8 to 1, it is very difficult to say that the irregularity which was committed by the Sub-Divisional Officer in the first instance was such as to have caused a failure of justice in this case. Having regard to the other circumstances which appear in the learned Sessions Judge's charge to the jury I am of opinion that there has been no failure of justice in this case by reason of what took place before the Sub-Divisional Officer. We are not entitled to interfere with the verdict of the jury in jury trials unless we are satisfied that there has been a miscarriage of justice. Bearing that cardinal rule in mind, I am of opinion that no ground whatsoever has been made out which will induce this Court to interfere with the verdict of the jury.
10. The result, therefore, is that, in my opinion, this appeal stands dismissed.
11. I agree.