1. In this case three accused persons were put on their trial under charges under Sections 394 and 397, I.P.C., before the Assistant Sessions Judge of Alipur sitting with a jury. The jury brought in a majority verdict of 3 : 2, finding the accused guilty under Section 394, I.P.C., i.e., of robbery and causing hurt. The first two accused have been sentenced to five years rigorous imprisonment and the third accused against whom a previous charge for theft had been proved has been sentenced to seven years' rigorous imprisonment. He has also been directed to report to the police any change of address under Section 565, Criminal P.C., for a period of two years after the expiry of the term of imprisonment.
2. The case for the prosecution is that the accused persons persuaded one Satis Chandra Biswas to meet them and go to see a tank for the purpose of dealing in fish, He borrowed some money from one Surajballi, went with his partner Jiban Krishna Das and met the accused at the Beliaghata station. They then went to Dhakuria where they got out of the train. After this when they were walking down the line, the three accused persons set on them and robbed them of Rs. 124 which Satis had, one of them using a knife, and decamped.
3. The verdict of the jury has been assailed on three grounds. The first allegation is that as a matter of fact when the jury first came in to declare their verdict the Judge asked them if they were unanimous. They said they were not. But it is alleged that they added they were not unanimous as their verdict was 'not guilty by 3 : 2.' The Judge then asked them to retire and they brought in a verdict of 'guilty' by a majority of 3 to 2. Now as to this allegation which is supported by an affidavit, it is remarkable that no objection was taken before the Judge at the time. We therefore thought it necessary to make a reference to the learned Judge as to whether there was any such incident as was alleged. The learned Judge denies that there was any such incident at all. He has pointed out that what is his usual practice is that he writes the question first on paper and then puts it to the jury and records the answer; and that he only recorded what the jury said, that is, there was no verdict that the accused were not guilty. This is a point which the Judge would certainly have remembered and we have not the slightest hesitation in finding that this affidavit is not worth the paper on which it is written and accept the statement of the Judge.
4. The next point urged is as to the admissibility of the evidence of one Surajballi. Surajballi, as we have said, is the man from whom Satis borrowed the money which was taken away by the accused. He was examined in the lower Court. When the case came up to the Sessions Court one witness (P.W. 9,) said that he was ill. Bat it appears from his cross-examination that he did not sea him for about 1 1/2 months. The Sub-Inspector, however, stated that he had seen him and had found him confined to bed and unable to move and he produced a certificate from a Kabiraj who, however, has not been examined to show the nature of his illness and that he was then bed ridden. On this the Judge has admitted this evidence under Section 33 of the Evidence Act. It is urged that he had no power to do this and that it was incumbent on the Grown to examine the Kabiraj. Reliance has been placed for this proposition on a case in England and a paragraph from 'Kosac on Evidence.' I need hardly say that facilities for obtaining qualified, doctors in England are very different from those in this country and we do not think we should accept as a proposition of law that it is absolutely necessary to examine a qualified medical practitioner before evidence can be accepted under Section 33 of the Evidence Act. We would add that in this case the witness was cross-examined in the lower Court and so there is the less reason to show that the accused has been prejudiced in the least by the admission of this evidence.
5. The last point urged was that the Judge did not put all the improbabilities of the case before the jury. This point has not been pressed.
6. In the result we find no reason to disturb the finding of the jury on the ground of any misdirection or illegality in the trial and dismiss the appeal. The accused must surrender to their bail to serve out the unexpired portion of the sentence.