C.C. Ghose, J.
1. In Appeal No. 626, the appellant is Haji Ayub Mandal and in Appeal No. 668 the appellants are Nityananda and Deresh. The last named persons have preferred Appeal No. 668 from jail, but the appeal of Haji Ayub Mandal (No. 626) has been placed before us at considerable length by Mr. Basu. The two sets of appellants were convicted by the learned Sessions Judge of Murshidabad and a jury under Section 395 of the Indian Penal Code and the learned Judge agreeing with the verdict of the jury sentenced the appellant Haji Ayub Mandal to four years, the appellant Nityananda to five years and the appellant Deresh to two years' rigorous imprisonment.
2. It appears from the evidence on the side of the prosecution that on or about the 18th of March 1923 there was a dacoity in the house of one Radhaballav who resided in village Goas, police station Raninagar in the district of Murshidabad. On the 19th of March one Jamini Kanta Saha, a nephew of Radhaballav, lodged the fir3t information report at the thana about the occurrence. Then followed a police investigation but nothing came out of that because the police were unable to trace the persons who had taken part in the dacoity. In July 1925, however, the police, who had mean while been engaged in investigating into the circumstances leading to the occurrence, submitted a charge sheet against Ayub and three other persons and they were committed to the Sessions Court to take their trial for having committed an offence punishable under Section 395 of the Indian Penal Code.
3. One of the accused was a man named Jorap. In the Court of the committing Magistrate, Jorap was tendered a pardon under the provisions of Section 337 of the Code of Criminal Procedure, and he accepted such pardon. Thereafter he was examined as a witness for the prosecution; but although he was examined as a witness for the prosecution, after a pardon had been tendered to him and after the pardon had been accepted by him it appeared that when the case reached the Sessions Court his name was still in the category of the accused. On the first day of the trial in the Sessions Court there were, therefore, before the learned Sessions Judge and the jury four accused, i.e., Ayub, the two appellants in Appeal No. 668 and Jorap. They were asked to plead and after their pleas had been taken the Public Prosecutor drew the attention of the learned Sessions Judge to the fact that the accused Jorap who was in the book had been tendered a pardon, that he had accepted such pardon, and that in the events which had happened the case against this accused was to be deemed as having been withdrawn. The learned Sessions Judge's attention being drawn, he recorded the following order:
As it appeared from the order sheet of the -committing Magistrate, dated 23rd November 1925, that a pardon was tendered to and accepted by Accused No. 4, Jorap Mandal, ha was removed from the dock. He will remain in custody as before till the termination of the trial.
4. The trial in the Sessions Court thereafter proceeded and the accused Jorap gave evidence on behalf of the prosecution. The trial ended, as stated above, in the conviction of the three accused whose names have already been stated.
5. On behalf of the appellant Ayub, the first point that has been taken before us by Mr. Basu is that the evidence of Jorap in the Sessions Court was not admissible in evidence. The argument is put in this way : It is argued that although a pardon had been tendered to and had been accepted by Jorap in the Committing Magistrate's Court, apparently what happened was that he was still considered as an accused who was to take his trial. His name was in the category of the accused and at the opening of the trial in the Sessions Court his plea was taken by the learned Sessions Judge. The plea of the accused Jorap having been taken (the plea being one of guilty) and no sentence having been passed, he could not in law be treated as a person who was entitled to give evidence on behalf of the prosecution. In support of Mr. Basu's contention our attention has been drawn to a number of cases; but the point for decision does not really depend upon the decisions to which our attention has been drawn, but on the facts of this particular case; and when one examines the facts of this particular case, it is abundantly clear from the record that owing to a mistake on the part of some one the name of the accused Jorap had not been removed from the category of the accused and that as soon as the learned Sessions Judge's attention was drawn to the fact that this man Jorap had been tendered a pardon and that such pardon had been accepted by him in accordance with the terms of Section 337 of the Code of Criminal Procedure the learned Sessions Judge at once directed that he should be removed from the dock. The effect of that was that, so far as this case was concerned, at the Sessions Court there was really in the dock no accused of the name of Jorap ready to take his trial. He was, therefore, treated, having regard to what had gone before, as a witness who was entitled to give evidence on behalf of the prosecution. The only thing that had to be observed was that he was not, until the orders of the Sessions Judge had been obtained in that behalf, to be released from custody. Therefore, so far as the facts of this case are concerned, I am satisfied that the point urged by Mr. Basu is without any substance whatsoever and that no prejudice of any1 description has been caused to the accused by reason of the procedure which has been adopted in the learned Sessions Judge's Court.
6. The second point that has been urged by Mr. Basu is that the charge delivered by the learned Sessions Judge to the Jury is defective and misleading because the attention of the jury has not been drawn in a sufficiently pointed manner to the requirements of the law and to what has been observed as the practice for many years past in dealing with the evidence of an approver. (His Lordship after examining the evidence proceeded.) As I have said taking the charge as a whole, I think the learned Sessions judge has not only complied with the law in this behalf but has placed the cases of the individual accused before the Jury in a sufficiently lengthy and satisfactory manner.
7. There now remains the third point to be noticed which was taken by Mr. Basu. It is said that at the first identification of the suspects Ayub was not identified at all. In the second place, it is said that the complainant stated to the police that he could recognize three men only as having taken part in the dacoity and that Ayub was not one of them.
8. Now, so far the first contention under this head is concerned, it really depends upon the evidence of the investigating officer P.W. 26. It is true that there was fairly long delay before the suspects could be brought forward for identification, but that was because of the fact that the police were not able to submit a charge-sheet till July 1925.
9. With reference to the second of Mr. Basu's contentions under this head, the only comment that need be made is that the evidence of the prosecution witness, the investigating officer, must be read as a whole, and if one turns to an earlier portion of that evidence it is clear that Radhaballav did mention to the police, in addition to the three men of whom particulars had been given by him, that there was another man who broke open the iron chest. It is also clear from the evidence of P.W. No. 26 that a description of the man who had broken open the iron chest was supplied by Radhaballav on the following day. That being so, it is impossible to contend that only three men were spoken of by Radhaballav and that there was no mention whatsoever of Ayub. It may be that the evidence such as I have referred to was not prominently brought forward in the concluding portion of the learned Judge's charge to the Jury; but lit is not to be supposed for one second that this evidence was not in the minds of the jury, at the time when they were considering the whole case; and, indeed, there is internal evidence in the charge itself that the evidence of the prosecution witnesses must have been referred to when the learned Sessions Judge was addressing the jury. In these circumstances, it being a jury trial, we cannot lightly interfere with or set aside the verdict of the jury unless we are satisfied that there has been such misdirection as, in our opinion, has occasioned a failure of justice. In my opinion there has been no such misdirection and there has been no failure of justice.
10. With these observations, I am of opinion that these appeals should stand' dismissed.
11. I agree.