1. In this case, twelve persons were put upon their trial before the Assistant Sessions Judge of Faridpur and a jury on various charges in connexion with a dacoity alleged to have taken place on 26th-27th March 1931. The prosecution case was that the complainant Nibaran Chandra Saha went to bathe in the river Brahmaputra leaving his married daughter Nanibala and some other relatives at home; that on the next day at about midnight several men broke open the door of the building of his house and entered the room in which Nanibala and her three children were sleeping with other persons; that they broke open an almirah that was in the room and took away various gold ornaments; that they were heard and the villagers began to arrive and that when Nibaran returned home on Saturday he gave to the police a list of the missing articles. The case was one in which the evidence was all connected up by the evidence of the approver who seems to be a young man of good family and rather an exceptional person to be in a position of confessing in taking part in a dacoity. The result was that of the 12 people who were charged one was acquitted by the jury. Of the 11 who were convicted, one Jagabandhu has not appealed. He, it may be stated, was convicted largely on the strength of his own confession. We have before us however three appeals by the remaining ten accused. In Appeal No. 243 the appellants are Chittya Ranjan Das, Sona Mia and Jainuddi; in Appeal No. 270, we have Naba Kisore Banik and Madhusudan Gope as appellants and, in Appeal No. 330 there are five appellants-one Bhuban Mohan Saha and one Ramesh Chandra Ghosh and three others whose cases will have to be dealt with together, namely, Mati Lal Dutta, Aswini Kumar Kar and Ainaddi.
2. Mr. Talukdar in the first two appeals-and he has been followed by the learned advocate for the appellants in the third appeal-has made some comments as to the general direction of the Judge in his charge to the jury; but I am not impressed with the criticisms which have been made. It appears to me that the learned Judge has taken a good deal of pains in giving his charge to the jury and that there is nothing wrong in his exposition of the law. Indeed, he has in some respects gone at a great length into the law in detail and applied it to the facts of the case. He has after discussing the law and discussing the facts taken up in his charge the evidence against the accused persons one by one; and, on a consideration of the evidence against them, I am of opinion that there was no misdirection or insufficient direction in the charge which would entitle us in any way to interfere with the conviction of Chittya Ranjan Das or Naba Kisore Banik or Bhuban or Ramesh. The evidence against each of these persons is in such a state that it is impossible to say that the jury's verdict could have been influenced by any of the suggestions or criticisms that have been made against the charge. As regards these persons, it is impossible, in my judgment, to interfere with their convictions and their appeals must be dismissed. The position however disclosed by the record is this: that it would seem as if the jury had made up their minds to act upon the testimony of the approver even in cases where that testimony had not been supported by corroboration in the sense in which that requirement is intended by the rule which says that the evidence of an accomplice is not to be accepted unless there is corroboration implicating a particular accused person; that corroboration being in itself of independent value, that is to say, not tainted evidence. After telling the jury in a general manner all the relevant principles to be applied to the case, the learned Judge comes to set out at the end of his charge the condition of the evidence against each person. When he comes to Sona Mia and Jainuddi, he simply says this:
The only evidence against these two persons is that of the approver. Sona Mia was named in the confession of the accused Jagabandhu.
3. It is said by Mr. Talukdar that, in these circumstances, he ought to have added to this portion of the charge a statement to the effect that it would be very dangerous indeed to convict upon the approver's testimony alone and that the mention of the name in the confession of Jagabandhu is no corroboration such as is generally to be exacted by the jury in the evidence of an accomplice. Again, we find that when dealing with the case of Madhu Sudan Gope he tells the jury that the only evidence against him and Naba Kisore Banik is the evidence of the approver and of one witness. It turns out that the one witness does corroborate the approver as regards Naba but that witness does not corroborate him as regards Madhu Sudan Gope at all; the learned Judge having made some little slip not unnaturally between Madhu Sudan Gope and another of the accused, namely, Bhuban Mohan Saha. It appears to me therefore quite clear that the conviction as against Madhu Sudan Gope cannot stand and that his appeal should be allowed and he should be acquitted. I think however that as there was one witness to corroborate the approver as regards Naba, it is not possible to interfere with his conviction. As regards Bhuban and Ramesh, appellants in Appeal No. 330, the evidence against them seems to be considerable and I do not think that the learned Judge has given any misdirection or insufficient direction as regards them. But as regards Mati Lal Dutta, Aswini Kumar Kar and Ainuddi, the position is that the learned Judge tells the jury that against these three accused there is the evidence of the approver. He says
that they were in Gangaprosad Cutchery on the day of the dacoity has been proved by three or four prosecution witnesses; but there is no other corroboration of the allegations of the approver against these three accused. Mati Dutta was named by the accused Jagabandhu in his confession.
4. Then again we have to consider whether in view of the previous warnings that the learned Judge has given in his charge, the general principles he has laid down and what he has said in particular about the evidence of witness 27; we can regard this as an insufficient warning to the jury, whether we ought not to say that the learned Judge having laid down quite correct principles and then having stated the condition of the evidence against these three people should have directly for the benefit of the jury applied the principles that he has so well laid down and given them a firm and particular warning to the effect that when he speaks of no other corroboration the evidence to which he is referring is in law no corroboration at all. The matter is somewhat on the, border line. I do not for one moment desire to depart in this case or in any other case from the elementary principle of law that the jury on a proper direction thinking fit to act on the evidence of the approver is committing no illegality whatever and this Court has no right to interfere with it; but I do think that it is a fair criticism of the learned Judge's charge that the very able exposition which he has given of the principles applicable to the evidence has not been brought home as it should have been brought home when he comes to state the condition of the evidence against each man. In this view, I am of opinion, that, as regards the convictions of Sona Mia and Jainuddi and also of Mati Lal Datta, Aswini Kumar Kar and Ainaddi, the appeals should be allowed and their convictions should be set aside. As regards the appellants other than these and Madhu Sudan Gope, we have been asked to consider whether the sentence of six years is not too much having regard to all the circumstances of the case; but I am quite satisfied that a heavy sentence for an offence of dacoity is highly necessary at present and I am not minded to reduce sentences in any way.
5. I agree.