1. Appeal No. 165 is by three parsons, Sheik Abdul, Nosim alias Nosai and Hazir Ali. Appeal No. 182 is by six persons, Jabadali, Rashid Ali, Isabali, Arjan, Hajan, Sheik Mashu and Abdul Manaf. They have all bean convicted under Section 395, Indian Penal Code, and sentenced to various terms of imprisonment on a trial held by the Additional Sessions Judge of Sylhet with the aid of Jury who unanimously found all of them guilty.
2. Three out of the nine appellant?, namely, Sheikh Abdul, Nasim and Abdul Manaf made confessions which were recorded by Moulvi Mahamad Choudhuri, then second officer of Karimganj. They subsequently retracted the said confessions alleging that they had made them on account of torture and inducement by She Police. The learned Judge admitted these confessions in evidence and having pointed out to the Jury the various facts and circumstances upon which he held that the grounds alleged in the retractions are not true and also having placed before them the evidence of the recording officer made observations in his charge to the Jury to the following effect: ' Taking the evidence and the circumstances and the probabilities into my consideration, I am satisfied that the confessions in question were voluntary and I accordingly hold them to be so. It is for you to decide whether or not they are true.' He thus give the Jury to understand that the question as to whether the confessions were voluntary or not was one entirely for him, that he had decided that they were voluntary and that all that remained for the Jury to consider was whether they were true or not. This is hardly the proper way to deal with confessions in a trial held with the aid of a Jury. Under Section 298 (1) (a), Cr.P.C., it is the, duty of the Judge to decide on the admissibility of the evidence, and this duty he has got to discharge irrespective of the question whether objection has or has not been taken to the evidence by the parties themselves. He has, therefore, to decide whether the confessions are admissible in evidence or not, that is to say, he has to consider whether they have been duly recorded and whether they are free from the infirmities mentioned in Section 24 of the Indian Evidence Act. In dealing with the question of their admissibility he has obviously to determine whether they are voluntary or not. Under Section 299, Cr. P.C., the Jury have to weigh and value the, evidence admitted by the Judge, and in order to do so they also must themselves go into the question as to whether they were made voluntarily. To judge of the truth or falsity of a statement one must endeavour be find out whether it was voluntarily made; for a free and voluntary statement is some guarantee of its truth. It was not right, therefore, to take away entirely from the Jury the consideration of the question as to whether the confessions were voluntary or not; and it was clearly the duty of the learned Judge to place before them the facts and circumstances, pro and con, and ask them to form their own conclusions as to the character of the confessions. This has not been done, and in my opinion this was a serious omission sufficient to vitiate the verdict of the Jury.
3. As observed before, the duty of the Judge is to decide on the admissibility of the evidence. In my opinion there has been a failure in this respect which is really lamentable. The Investigating Police Officer was examined as a prosecution witness in the case. He deposed to the effect that on commencing investigation into the occurrence which forms the subject matter of the present case he got the report of another burglary in Hatirgol Mouzah, about a mile from the house of the victim in the present case, and he went on to depose as follows :-'The complainant in that burglary case named three persons, Nosai, Rashid and Jaifar (the first two being the accused in the present case as having bean recognised by her).' Further on he deposed as follows: 'In connection with that burglary case I arrested the accused Nosai. In connection with that case he made a confession before the Magistrate. In that confession he also confessed his complicity in the dacoity in Kaileswar's house (meaning the house of the informant in the present case). He implicated Abdul Jaifar, Nur, Samed Ali, Rashid, Muslim and a few others in that confession.' All these statements are clearly inadmissible in evidence. They amount to evidence of bad character, complicity in other crimes, confessional statements made to the Police and pure hearsay evidence which on the face of them deserved to be excluded and when let in could not but have prejudiced the accused very seriously. Not only did the learned Judge not exclude the said statements but he referred to them and relied on them in his charge to the Jury and this, in my opinion, was a very serious misdirection. The Investigating Police Officer was further allowed to depose that the accused Sheikh Abdul pointed out the route taken by him and his comrades in going to Kaileswar's house and the place where they divided the booty and that the party has met first at Kanai Bazar. These unquestionably were confessional statements, clearly inadmissible as having been made to a Police Officer. They were not only admitted but the attention of the Jury was also pointedly drawn to them by the learned Judge in his charge. There are other pieces of evidence equally inadmissible in the deposition of the said Investigating Officer; for instance, be deposed to the effect that Sheikh Abdul in his statement to him mentioned the names of Manaf, Hajir, Mashoo, Rajan, Nosai and others. In short almost the whole of the examination-in-chief of the witness is a mass of irrelevant matter the admission of which in evidence could not but have resulted in prejudice to the accused. A verdict based on such inadmissible evidence and on such misdirection on the part of the Judge can never be upheld.
4. The confessions made by the three accused Sheikh Abdul, Nasim Ali and Abdul Manaf ware admitted in evidence; but such parts of them as related to the other occurrence should have been excluded as irrelevant).
5. Turning then to the directions given by the learned Judge on the evidence which is on the record, it appears that there are omissions on vital points which are likely to have prejudiced the accused. There was no direction given as to the circumstances pointing to the fact that there was opportunity of recognition, and the fact that none of the accused were recognised was not even mentioned by the learned Judge. Then there is the vary important fact that the articles alleged to have been produced by Abdul Manaf on the 22nd May did not find mention in any of the two lists of properties originally filed by the informant Kaileswar and were mentioned in a supplementary list which ha filed the day after they were produced. The Jury were not asked to consider the nature of the articles alleged to have been recovered from the possession of some of the other accused persons and the possibility of a genuine identification of them by the informant. These, no doubt, are mere omissions; but they are omissions on some of the points which are of vital importance and such non-direction amounts in law to positive misdirection.
6. It is unnecessary to go into further details for I am clearly of opinion that the convictions and sentences passed on the accused cannot possibly be upheld upon such trial as they had in this case.
7. We have been taken through the whole of the evidence in the case. It appears that beyond some evidence of association which is more or less of a worthless character and statements contained in the retracted confessions of the co-accused there is really no tangible evidence against five of the appellants viz., Hazir Ali, Jabed Ali, Rashed Ali, Isob Ali and Sheikh Mashu. They should, therefore, be acquitted and discharged. As regards the other four appellants viz., Sheikh Abdul Nasim alias Nosai. Arjan Hajan and Abdul Manaf, there is some evidence about the nature and sufficiency of which I would refrain from expressing any opinion. While setting aside the convictions and sentences passed against the said four appellants I should leave it open to the authorities to proceed further against them or such of them, if any, if they so desired.
8. I agree.
9. I want to add a few remarks only. It seems to me surprising that the learned Public Prosecutor should tender the in-admissible evidence to which my learned brother has referred. He is supposed to possess greater legal qualifications than the Police Officer who conducts prosecution in committing Court and he ought to exercise his judgment on the evidence which the Police wish to produce. If be had devoted any attention to the Sub-Inspector's evidence he would have seen at once that much of it was barred by the provisions of the Evidence Act; and if ho had decided to keep out that inadmissible evidence, he would have been able to shorten the case considerably by excluding the useless evidence about association.