1. A dacoity was committed on the night of February 25th, 1919, in the house of Kali Das Lahiri of Namkani, a large quantity of property of various kinds was taken away, and Kali Das was killed. The Police made a few arrests during March and on April 1st, a man, named Jaba Sardar, appeared before the investigating officer and made a statement, as the result of which numerous arrests were made. In the end twenty two men were placed on their trial before the Court of Session, and the jury were unanimous in finding fourteen of them guilty under various sections. These fourteen appealed and the appeal was admitted in the cases of four of them, viz.--Asimuddin Sardar, Abjan Sardar, Sobandi Paramanik and Mofizuddin Paramanik, and in regard to sentence only in the cases of Jamin Sheikh and Jadulla Sardar, while it was dismissed summarily as regards the other eight.
2. It is convenient to deal first with the case of Abjan Sardar; he is brother of Jaba Sardar, the man who made a statement to the Police on April 1st, and was afterwards examined as a witness. In dealing with the evidence against him in particular the learned Judge pointed out how little there was against him. The approver said that he turned back on the way to the dacoity and took no part in it; or, rather, in the first Court he said that Abjan turned back on the way, and in the Sessions Court that he took no part, a suspicious discrepancy as was pointed out to the jury. Of the other evidence, the Judge remarked that one fact, even if believed, had very little weight, that another fact, if believed, did not show that Abjan was in the dacoity, and that a third fact amounted to nothing in itself. I think it is clear that the Judge invited the jury to acquit Abjan. The jury, however, did not do so, and it is contended that the Judge ought to have gone farther and said that there was no evidence against him. I think that view is correct, and Mr. Orr, for the Crown, admits that he cannot press the case against Abjan. The result is that his appeal is allowed, and the conviction and sentence set aside so far as he is concerned.
3. I turn next to the case of Sobhandi: the position regarding him is quite different, for he is named positively by the approver, and a glass containing a large number of rupees was found underground near his house. The glass was identified by Kali Daa Lahiri's widow and son, and if that identification is believed the discovery is very strong corroboration of the approver's story. The facts were placed before the jury correctly, and they found Sobhandi guilty. It is impossible for us to say that there was any misdirection, and his appeal must be dismissed.
4. The case of Mofizuddin stands on a rather similar footing. In consequence of a statement made by him, the Police went to his father in law's house, and there his mother-in-law made over Rs. 200 in notes. The learned Judge pointed out all the facts correctly he reminded the jury that the notes could not be identified, that there was nothing to connect them with Kali Das Lihiri, and that the accused's father-in-law was in well-to do circumstances. It is impossible for us to say that there was any misdirection. As the jury found Mofizuddin guilty we must dismiss Mofizuddin's appeal.
5. Now I come to the case of Asimuddin. The learned Judge dealt with him last, and, as I read his words, I think he recommended the jury to acquit him. The case against him, as made by the approver, is that he abetted the dacoity, but did not himself take any part in the commission of it, and the charges framed against him were under Sections 306, 109, Indian Penal Code and Section 120 B, Indian Penal Code The Judge said that the latter section was not applicable. The jury found him guilty under Sections 396, 109), Indian Penal Code and did not return a verdict on the charge under Section 120-B, Indian Penal Code. So far as he is concerned, three points are made, namely, (1) that the Judge's charge as to what is needed to prove abetment of dacoity with murder is incorrect (2) that as the jury acquitted the appellant of an offence under Section 120-B, they could not find him guilty of abetment by conspiring to commit dacoity, and (3) that irrelevant evidence was admitted, in the shape of the evidence about proceedings under Section 110, Criminal Procedure Code.
6. There is no substance in the second point. Rightly or wrongly, the Judge said that Section 120-B was not applicable and asked the jury to deal only with the charge under Sections 398, 109, Indian Penal Code. The jury did not acquit Asimuddin of the charge under Section 120B bat they abstained from returning a verdict in respect of that charge.
7. On the first point, I am disposed to think that the learned Judge ought to have suggested on any view of the case the evidence did not do more than show that Asimuddin was guilty of abetting simple dacoity. I need not say more, however, because such a misdirection, if there was one, could be dealt with by altering the section from Section 396 to Section 395, Indian Penal Code, and because the third point seems much more weighty.
8. The evidence about the proceedings under Section 110, Criminal Procedure Code, was introduced for a two-fold reason. The first was to show a motive for the murder and the second was to corroborate Jaba Sardar in one detail of his story, and to show that some of the accused were going about together just before the dacoity.
9. The facts about these proceedings are as follows: An inquiry was begun in July 1918 by the Police about the desirability of starting proceedings under Section 110, Criminal Procedure Code, and on August 4th, 1918, the Magistrate drew up formal proceedings against two sets of men; one against nine karigars, none of whom were accused in this dacoity case, and one against Asimuddin, Dariulla, Asgar Mandal, Abu Fauzdar, Karim Mondal, and three others. The investigating Sub Inspector made Kali Das Lahiri's house his head quarters during his inquiry into those cases, and on one occasion stones were thrown at the house. For a time an armed Head Constable and two constables were stationed there for his protection, and later one constable only, who was withdrawn after a time. The Magistrate tried the cases locally, and Kali Das Lahiri was cited as a witness in both cases, but he arrived too late to depose in the case against Asimuddin and others, and was examined only in the case against the hangars. Those are the facts bearing on the proceedings as evidence of hostile feelings between Asimuddin and Kali Das Lahiri. I think they must be regarded as admissible for showing a motive for the savagery with which the dacoity was carried out. No objection appears to have teen taken to this evidence being given. Instead, cross-examination was devoted to showing that, prior to the proceedings under Section 110, Criminal Procedure Code, Asimuddin brought a charge of corruption against the senior Sub Inspector Nazir Ali', and the suggestion was that the proceedings under Section 110, Criminal Procedure Code, were the outcome of Nazir Ali's desire for revenge, and that the present charges are due to the same cause.
10. Regarding the second reason, Jaba Sardar said that Asimuddin announced his intention before-hand of creating alibi evidence by going to a mukhtear at Bajshahi. The mukhtear Hem Kanta Moitra (prosecution witness No. 74) was examined and he deposed that Asimuddin did come to him on February 24th and that he was probably at Rajshahi on the 25th also. The order sheet of the case was also put in. Again, I think that this evidence could not be excluded. If evidence of the nature of the proceedings had not been given for the first purpose, the mukhtear's evidence should have been confined to showing that Asimuddin came to him only in connection with a criminal case, but that was impossible. So far, I think that the evidence was admissible and I find that the Judge warned the jury again and again not to be influenced by the evidence regarding those proceedings except so far as they showed motive, and the movements of some of the accused parsons on February 24th. He repeated the warning in the case of Asimuddin in particular. Scrupulously careful as he was, however, in these respects, he began his summary of the evidence against Asimuddin by saying: 'Asimuddin was convicted in a Section 110 case in Bajshahi on the 7th of April and from that date he was in jail here and was produced in Court here from jail.' That is, it seems to me, the real point in the objection raised on behalf of Asimuddin. The Judge had told the jury in almost every case when each man was arrested, apparently because most of them were said to have absconded, but there was no reason for doing so in the case of Asimuddin because he had appeared in Court more than once during March. Possibly, Asimuddin had been sent to Court in jail clothes or perhaps, the Judge assumed that the jurors knew what had been the result of proceedings. Whatever be the explanation, I think that the fact that Asimuddin had been required to give security and had been unable to give it, was not admissible, and on that ground I think that the verdict against him is vitiated, and that the conviction and sentence must be set aside. Further, having regard to the tenonr of the learned Judge's remarks, I think we should say that Asimuddin must not be tried again.
11. Four more of the accused were concerned in those proceedings under Section 110, Criminal Procedure Code. One of them, Abu Fauzdar, was acquitted by the jury, and the appeals of the other three were dismissed. I think I ought to say why the objection does not hold good in their case. Dariulla appeared on January 21th but not again until he was arrested in April, and then the proceedings against him were dropped. Karim was not present when judgment was delivered, and, so far as I can see, the record does not show what order was passed on him. Certainly, the Judge did not tell the jury that he was convicted. Asgar, the mukhtear says, was present to hear judgment delivered, but I do not think that the result of the judgment is mentioned, and again the Judge did not say anything about it. Against all three men there was the evidence of the approver, and in addition other evidence on which the jury could come to the conclusion that they were guilty.
12. Regarding Jamin Sheikh and Jadulla Sardar, whose appeals were admitted on the ground of sentence only, they were convicted under Section 412, Indian Penal Code and the learned Judge in awarding punishment says: 'I consider the case a fit one for the imposition of the maximum penalty as they knew the property was transferred by the admission of such an atrocious crime.' It is to be regretted that he does not give his reason for this statement: their conviction is based, as I read the evidence and charge, on the presumption permitted by Section 114 of the Evidence Act, but I do not think the presumption alone would justify fixing them with more than knowledge that the goods had been obtained by dacoity, and, that being so, the sentences passed on them are excessive. The sentences on Jamin Sheikh and Jadulla Sardar are, therefore, reduced to imprisonment for five years each.
13. The result is, that the appeals of Sobhandi and Mofiziddin are dismissed; the appeal of Abjan is allowed and he is acquitted; the appeal of Asimuddin is allowed and the conviction and sentence are set aside: and the appeals of Jamin Sheikh and Jadulla Sadar are allowed in part and the sentences reduced as ordered above,
Shamsul Huda, J.
14. I agree.