1. The appellant in this case Enayet Ali, has been found guilty by a majority verdict of the jury, and has been convicted by the learned Additional Sessions Judge, Dacca, Under Section 459, I. P. C, and sentenced to undergo rigorous imprisonment for four years. The jury were divided in their verdict. Three of the jurors were of opinion that the appellant was guilty Under Section 459, I. P. C, while two of them came to be of opinion that the appellant was not guilty of the charge framed against him. The learned Judge's charge to the jury has been read to us; and a portion of the evidence bearing upon the material points adverted to by the learned Judge in his charge to the jury has also been placed before us by the learned advocate appearing for the appellant. It has been, in the first place sought to be made out that the facts of the case to which reference has been made by the learned Judge in his charge to the jury, do not constitute an offence under Section 459, I. P. C, and on this part of the case it has been argued before us by Mr. Lahiri, that there was misdirection so far as the learned Judge's charge was concerned.
2. The point made in argument before us relates to this, that grievous hurt might have been caused by the appellant at a time when criminal trespass, so far as the appellant was concerned had terminated when the appellant was struggling with the complainant in the case, on the courtyard of the house. The Judge placed the evidence bearing upon this part of the case. So far as the case for the prosecution was concerned it is at least difficult to distinguish in which part of the house the hurt was inflicted by the appellant or the part of the house relating to which there was a criminal trespass. On the facts disclosed in the case, the courtyard could have been taken to be a part of the house, and in that view of the case, on the facts placed before the jury, the offence committed by the appellant certainly, amounted to an offence Under Section 459. Regard being however had to the position indicated before us by the learned advocate for the appellant, as also by the learned advocate representing the Crown in the case, and as it was not perhaps possible to make out on the evidence before the Court as to whether the courtyard was a part of the house in which there was criminal trespass, we are inclined to hold, on the facts placed before the jury, that the appellant; ought to have been convicted in this case, Under Section 457, I. P. C, namely of lurking house-trespass by night, in order to commit an offence punishable with imprisonment.
3. There are two other points placed before us in course of argument of the case by the learned advocate appearing for the appellant. Mention was made of the lamp by which the accused was identified by the complainant and his wife. It was placed before us for consideration that the learned Judge should have pointed out to the jury that the police produced a kupi lamp which in point of fact was not the kupi which was said to have assisted the complainant in identifying the appellant. The material part of the evidence on this part of the case was placed before us; and we find that the complainant's wife did not state that the kupi lamp which was exhibited in the case was the lamp which was burning at the time of the occurrence by the light of which the appellant was identified by the complainant. On a careful consideration of the learned Judge's charge to the jury, it does not appear to us that any specific reference had been made to the kupi which was made an exhibit in the case. The learned Judges placed the point before the jury for consideration whether it was at all likely that the complainant would have left the light burning ; could the jury believe the story that the light was burning, and that the appellant was recognized by the light of the lamp. The learned Judge proceeded to state:
If you think that the story of burning of the lamp is falsa then you will have seriously to consider whether those witnesses who made palpably false statements on such a material point, can be believed with regard to their other statements of their recognition of the accused; during the struggle outside the hut by the light of the stoves.
4. Taking the learned Judge's charge to the jury on this part of the case, in its entirety, it appears to us that no weight was attached to the particular exhibit before the Court, namely the kupi lamp; and the question of fact before the jury was, and which the jury were asked to-decide, whether there was any such light in the hut which could help the complainant and his wife to identify the accused. In view of the statements made by the learned Judge in his charge to the jury, we are unable to hold that there was any misdirection or non direction in the charge relating to the kupi lamp which was exhibited in the case. The last point placed before us for consideration, by the appellant, was that certain statements of one Khalil made to other people had been treated as evidence in the case although Khalil was not examined as a witness for the prosecution. The learned Judge has made it abundantly clear in his charge to the jury, that although there was this statement sought to be brought in on the side of the prosecution this Khalil has not been examined as a witness and the learned Judge giving the necessary warning to the jury said:
From his non-examination you may presume that if he had been examined in the case, for the prosecution, his deposition would have gone against the prosecution.
5. On this warning to the jury, we are unable to come to the conclusion that there was any misdirection in the matter of bringing to the notice of the jury, the evidence afforded by Khalil in his statement to other persons. We are unable to hold that there was such misdirection in the case or non-direction, by virtue of which we can come to the conclusion that any retrial of the appellant should be directed by us. As indicated above, we are of opinion that the evidence in the case was properly placed before the jury by the learned Judge, and that upon these facts the offence was committed Under Section 457, I. P. C. In the above view of the case before us, we hold that the appellant is guilty Under Section 457; and we direct that the appellant should undergo rigorous imprisonment for a period of two years. The appellant is convicted Under Section 457, I. P. C., and the sentence passed on him by the learned Judge is reduced to two years' rigorous imprisonment.
Nasim Ali, J.