1. This is an appeal by two persons Rebati Mohan Chakravarti alias Eebati Thakur and Jabbar Sheik alias Abdul Jabbar. These two persons were tried by the learned Sessions Judge of Mymensingh sitting with a jury on a charge of daeoity under Section 395, I.P.C, and also under Section 397. The jury unanimously found the two appellants not guilty under Section 397 and they uunanimously found both the appellants guilty under Section 395. The learned Sessions Judge agreeing with this verdict has sentenced them both to four years' rigorous imprisonment and further to a fine of Rs. 50 each in default to suffer further imprisonment for six months.
2.The dacoity in question took place in the house of one Mathur Modak on the night of 10th December 1926. The dacoits used guns and some three persons were wounded in the course of the daeoity and cash and ornments were looted.
3. The two appellants both pleaded not guilty. The first point raised by the appellants relates to the constitution of the jury. What happened was this. The jury was empanelled and sworn and a foreman appointed. Meanwhile another case was being tried. It was then found when the present case was called on that the foreman of the jury has been seen talking with the Court Inspector. This allegation being substantiated the Judge quite properly discharged him, took another gentleman who was present, empannelled him and proceeded with the case. I may say at once that the objection is a technical one for it is not suggested that the accused was in any way prejudiced by what happened. He contended that the only course open to the Judge was to discharge the whole jury and empanel a new one. The Code strange to say makes no provision for dealing with a jury or jurors guilty of misconduct. The only section dealing with the discharge of a jury is Section 282, Criminal P.C, which provides what was to be done in the case of illness of a juror. It has, however, been held that the Judge has an inherent power to discharge a jury for misconduct. Rahim Sheik v. Emperor A.I.R. 1923 Gal. 724 a decision to which I was myself a party.
4. It seems to me that the present case should be dealt with on an anology with Section 282, Criminal P.C. and that where a juror misconducts himself he should be discharged and either a new juror added or the whole jury discharged and a fresh jury empanelled. If the learned Judge decided that he should empannel a new jury how is the new juror to be chosen. Section 282 must I think contemplate the application of Section 276 (secondly) and that such juror may be taken from the persons present in the Court-room there being none of the summoned jurors present. That is what was done in the present case and so far as I can see there is no objection to it. There is no substance therefore in this contention.
5. The next point taken is equally technical. After the verdict was given the Judge stated that he would look at the police diaries before deciding whether he would refer the case under Section 307. Having done so he accepted the verdict of the jury and convicted the accused.
6. Under Section 172, Criminal P.C. the Court may send for the police diaries and use them not as evidence in the case but to aid it in such enquiry or trial. It is contended that the trial was finished with the verdict of the jury and that after that the Judge could not refer to the diaries. If, however, he could refer to the diaries before the verdict, he could obviously refer to them after the verdict.
7. Neither is the trial ended with the verdict of the jury for the Judge still has to decide whether he will accept it or refer the case and if referred the trial is continued in the High Court. By using the diaries for the purpose of determining if he would refer the case the Judge is using them for the purpose of the trial. This point has no substance whatever.
8. The next point raised is one of misdirection. In this case there was an approver and the appellants contend that there is no evidence to corroborate the approver as to the part taken by the present appellants in the dacoity and and that the Judge should have told the jury so. The prosecution no doubt have produced evidence which they allege corroborates the story of the approver as to the complicity of the present appellant in the dacoity-
9. The appellants contend, however, that the evidence does not raise any inference whatever as to the complicity of the present appellants in the dacoity. The appellants now contend that the Judge must determine whether a particular piece of evidence does or does not corroborate the story of the approver as to the complicity of the accused persons and then tell the jury that such and such evidence does corroborate the approver with regard to the complicity of the accused.
10. It has been held that it is the duty of the Judge to determine whether any evidence has been given on which the jury can properly find the question for the party on whom the onus of proof lies. [See Emperor v. Upendra Nath Das  19 C.W.N. 653, See also Ryder v. Wombwell  4 Ex. 32.]
11. From this no doubt the principle may be deduced that it is for the Judge to determine whether there is any evidence that does corroborate the story of the approver so far as the complicity of the present appellants is concerned.
12. In Ryder v. Wombwell  4 Ex. 32 this has been described as a preliminary question which is one of law for the Judge to decide.
13. Speaking for myself I have the greatest difficulty in understanding how the question whether one fact iscorroborated by another fact can be anything but a question of fact itself.
14. The approver states as a fact that a certain person went with him to commit a dacoity. Whether this approver and this person went to commit a dacoity is a question of fact. That the approver makes the statement in Court is a fact. That another person saw the approver and the said person at a certain place is a fact. It is this fact that is sought to be used to corroborate either the statement of the approver which is itself a fact that the person went with him to commit a dacoity or it may said to corroborate the fact that the approver and the said person went to commit a dacoity. In either case it is a fact which is used to corroborate another fact. In any view of the case both are statements of fact and a statement of fact is itself a fact. Whether one fact corroborates another would seem to be a question of fact. However the principle that such a question is one of law has apparently been adopted by our Courts and I am obliged to follow it. In the present case there was evidence that might I think be held to corroborate the approver's statement as to the complicity of these two appellants. There is the statement of Ainuddin Jamadar that on the day of the occurrence he saw Rehabali and Jabbar with the approver Oli at Pauli Ghat. The Ghat is about 3 miles from the place of occurrence and some 6 or 7 miles from the appellant's house. The jury might be justified in holding that this fact did corroborate the story of the approver as to the complicity of the two appellants in the dacoity.
15. It cannot therefore be said that there was no evidence to go to the jury which would corroborate the evidence of the approver as to the complicity of these appellants in the dacoity.
16. In my opinion the appellants have failed to prove anything which could be construed as a misdirection or a point of law which the Judge has wrongly decided. The appeal must therefore be dismissed.
17. I agree generally with the conclusions at which my learned brother has arrived and I have nothing to add on the two first points. With regard to the third point, the law in this country affecting the evidence of accomplices is contained in Sections 133 and 114III. (b), Evidence Act. These two sections read together coincide with the rule formerly observed in England and laid down in India prior to the passing of the Act. In England the permission given by law to the jury to presume that an accomplice's evidence is unworthy of credit, has in practice, owing to growing experience of the unreliability of such evidence, gradually become a duty to treat it as such, except in very exceptional cases. And this rule of practice has been followed so universally that it has become almost a rule of law -- and according to Taylor on Evidence, other authors deserve all the reverence of law -- in accordance with this rule English Judges have directed juries and any omission so to do, would be a ground for setting aside the conviction. In India, I find that a similar procedure has been adopted. It has been laid down in Re : Proceedings dated 20th March 1868  4 Mad.H.C.R. App. 7., and in a number of other cases, that the proper course for a Judge is to inform the jury that there is no rule in law prohibiting the conviction of an offender upon the uncorroborated evidence of an accomplice but that as a rule of practice it is considered unsafe to convict upon such evidence and then to point out circumstances, if any, in the particular case, for relying npon the evidence, and the omission so to caution the jury was in Queen-Empress v. Arumuga  12 Mad. 196. held to be a misdirection requiring the reversal of the verdict, and in many other eases has been held to be an error in law justifying such reversal.
18. This seems to me in effect to amount to a direction in accordance with the present English practice, viz., that the jury ought to draw the presumption that an accomplice's evidence is unworthy of credit, unless there are some exceptional circumstances in the case which rebut that presumption. But this does not seem to me to be in accordance with Section 114III. (b), Evidence Act, and when law has been codified, it cannot be modified gradually from day to day as the changing circumstances of a community require by rules of practice made to meet those imperceptibly changing conditions. Any modification, however small, must be made by the legislature, when a suitable opportunity arrives.
19. In a trial by jury it is the function of the jury to find the facts upon the evidence laid before them and for that purpose to be guided by the law which is applicable, and it is in all cases the duty of the Judge to point out to them that law. Phear, J., Queen v. Sadhu Mundul  21 W.R. 69 Cr. The law of evidence is part of the general law. The question as to what is or is not evidence, that is to say what amounts or does not amount in law to evidence is a question of law, to be decided by the Judge, as is the question whether there is any evidence in law to go to the jury.
20. Similarly the question as to what is or is not, what amounts or does not amount to corroborative evidence in law is a question of law to be decided by the Judge. It is not all evidence corroborating the accomplice's story, which comes within the rule requiring corroboration. The corroboration indicated in Section 114,III. (b), is corroboration in material particulars and these particulars must be such as to connect or identify each of the accused with the offence. This part of the law of evidence has been the subect of a very large number of Indian decisions, and the English cases have been reviewed in R.V.Baskerville  2 K.B. 658 The heading of that case is as follows:
Where on the trial of an accused person evidence is given against him by an accomplice the corroboration, which the common law requires is corroboration in some material particular tending to show that the accused committed the crime charged. It is not enough that the corroboration shows the witness to have told the truth in matters unconnected with the guilt of the accused.
21. In other words, the corroboration must be in some material particularimplicating the accused. As was said in R.v. Farler 8 C. & P. 106. and R.v Elahi Bux  5 W.R.Cr. 80, and other cases, a man who has been guilty of a crime himself will always be able to relate the facts of the case and if the confirmation be only on the truth of that history, without identifying the persons, that is no corroboration at all. Consequently, just 'as it is the duty, of the Judge to direct the jury' as to what portions of the evidence amount to evidence in accordance with law, and to lay before them such evidence only and to direct them to reject anyevindece which may have been given, but which does not amount to evidence in accordance with law, similarly it is the duty of the Judge to direct the attention of the jury to those portions of the evidence confirming or corroborating the accomplice's story which do or do not fulfil the requirements to which I have already referred. There are several Indian decisions on this point including one in Eatanlal'sReports at p. 840. But the Judge must not tell the jury that such or such witness does in fact corroborate the accused. That is the function of the jury and depends upon whether they believe the witness or not. And though an omission to direct the attention of the jury to those portions of the corroborative evidence which amount to corroborative evidence in law would only be a non-direction -- it is a misdirection if the Judge points out to the jury certain portions of the evidence as fulfilling the requirements already statd, when in fact they do not do so. On this question there is a case which is directly in point viz., Jamiruddi Masalli v. Emperor  29 Cal. 782 decided by Prinsep, J., and Stephen, J., the head-note of which reads as follows:
A sessions Judge in laying the evidence of an approver before the jury stated in his charge: 'If you think that the approver's story is worthy of credit in itself, you have to consider whether it has been corroborated on material points,' and then, after describing what in his opinion were 'the points of corroboration,' told the jury that 'the above are the points on which the evidence has been corroborated, and that corroboration is full and complete, if you believe it.' 'You have to consider these points and decide, whether the approver has been corroborated in material points, and, if you find that to be so, then you have in his story sufficient evidence to connect all three accused with the crime,' Held, that this was not a proper way to place the case before the jury.
22. The Sessions Judge should have told the jury that, although the law permitted them to convict on the uncorroborated evidence of an accomplice, it was not the practice of our Courts, which have consistently held that it was not safe or proper to convict on such evidence without some corroboration sufficient to connect each of the accused with the offence committed. With this caution the Sessions Judge should, have laid before the jury the evidence corroborating thestatement of the accomplice. The nature of the corroborative evidence must be confirmatory of some of the leading story of the approver as against the particular prisoner.
23. This is exactly what the learned Judge has done in the present case and what he must not do. He says on p. 12 of my copy of his charge:
I shall now state the facts in which the approver has been corroborated.' 'The statements of Oli which have been corroborated are stated belaw,
and he proceeds to lay before the jury much that does not amount to corroborative evidence of the kind required by law viz., evidence implicating the accused. I need only give one instance out of many. The learned Judge in item 5 on p. 13 sets out Oli's statement as follows:
Near Narinda they sat on the river bank, took pan and cigarette and got ready for the dacoity.
24. (Oli is referring here to himself and the other accused persons including the two appellants). Then the learned Judge sets out the 'evidence in corroboration' as follows:
The investigating Sub-Inspector says that he found a Kowta on the river bank some powder was lying on the ground. Danu Talukdar (P.W. 18) says that on the night of the dacoity he went to see his paddy field when he saw 15 or 16 men seated on the bank of the river.
25. It is clear that neither of these pieces of evidence implicate any of the accused and certainly not either of the appellants. They do not amount therefore to corroborative evidence in the sense to which I have already referred. Moreover this method of directing the jury is apt to mislead them as to the corroborative evidence existing against each individual prisoner, and to suggest that evidence which exists against some is evidence against all.
26. For these reasons in my opinion the Judge has to this extent misdirected the jury.
27. In other respects, however, his charge is satisfactory though to my mind overloaded with detail and repetition which is apt to confuse a jury. Moreover he has to a large extent discounted the misdirection to which I have alluded, by correctly directing the jury on the same points in other parts of his lengthy charge, and as in fact there was sufficient corroborative evidence in law against the two appellants -- that is to say, evidence corroborating the accomplice in some material particulars implicating the accused and as it must be remembered that it is not necessary that the accomplice should be corroborated in every material particular, I do not consider the misdirection so serious as to necessitate setting aside the conviction. I agree therefore that this appeal should be dismissed.