Arjun Panda and Others vs Emperor

Agarwala, J.—As we propose to order a retrial of this case it is desirable that as little as possible should be said about the facts in order that there shall be no prejudice to the accused in the retrial. The facts out of which this prosecution arose were that on 6th January last, while preparations were in progress in the house of Purusottam Patra at village Bellaguntha for the entertainment of guests on the occasion of the death of his father, a party of men broke into the house at about 10 P.M. and are said to have committed acts constituting the offence of dacoity. The accused were put on their trial for this offence and also on charges under Sections 148 and 460, Penal Code. The charge u/s 395, Penal Code, was tried by jury, the other charges being tried by the Sessions Judge with the aid of assessors. The jury returned an unanimous verdict of guilty against all the accused. As assessors they unanimously gave an opinion that all the accused were guilty of the charges under Sections 148 and 460, Penal Code. This opinion was in accordance with the views of the learned Sessions Judge himself who accepted the verdict in the jury trial and the opinion of the assessors on the other charges and convicted the accused on all the charges, some of them being sentenced to seven years'' imprisonment and fines and others to lesser terms of imprisonment and fines.

The main criticisms that have been addressed to us by the learned advocate for the appellants in '' this case are with regard to two matters: first, with regard to certain evidence which was admitted at the trial in proof of what was alleged to be the motive for the occurrence. The second line of criticism was with regard to the omission from the charge to the jury of any attempt to place before the jury the evidence against each individual accused persons with observations as to the defects in their evidence. Now, with regard to the first point, it may be observed that in cases of dacoity and cognate offences, where it is alleged that substantial property has been stolen, it is entirely unnecessary to consider motive at all. The taking of the booty in such cases itself provides a sufficient motive for the offence if any motive is required. In this case, on the guise of evidence of motive, the prosecution has in fact led a mass of evidence relating to the conduct of the accused in the past, which evidence was extremely likely to prejudice the jury. Such as that the principal appellant had acquired the reputation of being ''a local Hitler'' or that he and his companions were a gang who indulged in drinking and brawling and threatening their co-villagers with loot, or that they had indulged in acts of extortion against persons other than the complainant in this case have no bearing whatsoever on the facts which the jury had to try, namely, whether the appellants entered the complainants''s house and committed theft therein.

There were eight accused charged with the offence to which I have referred and the Judge nowhere sums up or places before the jury the evidence against each of the individual accused persons. It was important to do so in this case because we have on the record the earlier statements of persons who were competent to know who were the offenders and from those statements we find that possibly not all the accused were present. In a letter which the complainant wrote to a relation within a few hours of the commission of this offence he refers to one of the appellants and to "four others" having entered the house. In a telegram which was sent soon after this to the Superintendent of Police five names were mentioned only although it was added that others were present. In the first information seven names are given although the first informant himself and the other witnesses deposed to the presence of eight of the accused. In these circumstances, it was desirable and indeed necessary that the omissions in the earlier statements should have been placed before the jury in relation to each individual accused person. An example of the danger of this omission arises with regard to the appellant Raghu Parida. In the first information one of the persons accused was named as Raghu Oriya, The learned Judge in placing the evidence before the jury explained to them that possibly both Raghu Oriya and Raghu Parida were the same person as they were both Oriyas by caste, but he did not invite the attention of the jury to the fact that P.W. 2 who is an inmate of the house, had been unable to name Raghu Parida before the Sub-Inspector. This witness was not put up at the test identification which was held; so, presumably, he was a person whom the investigating officer considered was acquainted with the accused persons. The jury was not even informed of the fact that P.W. 2 had not been present at the test identification. Raghu Parida, it may be mentioned, was not mentioned in the telegram sent to the Superintendent of Police. I mention this, not for the purpose of expressing any opinion that this appellant has not been rightly convicted in this case but merely for emphasising the danger of the course adopted by the learned Sessions Judge in not placing before the jury the evidence as against each individual accused. The observations which I have just made with regard to P.W. 2 are equally applicable to P.W. 24 who purports to be an eye witness to the occurrence. This person admits that he did not know the principal accused at all whom he purports to identify, but he was not put up at the test identification so that for the first time he names the accused in this case when he comes to Court and the accused are in the dock. In view of this grave defect in the charge, in my opinion, the verdict of the jury must be considered as vitiated and the accused entitled to a retrial.

It has been contended by the learned Advocate-General that as the charges under Sections 148 and 460, Penal Code, were not triable by a jury and the Judge was competent to try these offences with tie aid of assessors, his conclusion with regard to the guilt of the accused on these charges should not be interfered with unless we are satisfied that they have been wrongly convicted on these oharges. It may be mentioned however that the judgment o� the learned Judge with regard to these oharges says merely that as he had indicated his opinion of the evidence in his charge to the jury it was not necessary for him to reiterate it in considering the charges under Sections 148 and 460, Penal Code. There is a fallacy in the argument that the learned Judge has expressed his opinion with regard to the credibility of these witnesses. In the charge which he tried with the jury and in regard to which he summed up the evidence to the jury he was not a judge of fact at all and any observations he made to the jury with regard to the credibility of the witnesses were not binding on the jury, but as a matter of fact, in this case there are few instances in which the learned Judge expressed any definite opinion with regard to the credibility or otherwise of the prosecution witnesses. On the non-jury charges the learned Judge was a judge of fact, and this Court, as a Court of appeal, is entitled to know the opinion of the Judge on the credibility of the witnesses who deposed before him. But we have not the advantage of that in the present case.

The next question is as to the course that should be adopted. The charge u/s 395, Penal Code, must be retried. We are of opinion, however, that the charges under Sections 148 and 460, should not be retried and should not have been framed at all in the present proceedings. The charges in respect of these offences are not based on any acts other than the acts which it is necessary for the prosecution to establish to prove the offence u/s 395, and it is clear that these charges were framed by the prosecution not for the purpose of proving offences committed by the accused that could be separated from the charge of dacoity but merely for the purpose of meeting the possibility that they might not secure verdict of guilty on the dacoity charge. Although technically the procedure adopted by the prosecution in this case may be within the law it is certainly against the spirit of the law. With regard to certain offences the Legislature has decided that accused persons are entitled to the privilege of being tried by jury and that privilege is not to be taken away by subterfuges adopted by the prosecution. That principle is well-illustrated in two oases which came before the Calcutta High Court. In Benoy Bhusan Chatterjee Vs. Emperor, , the accused was charged u/s 120B read with Section 302, Penal Code, and committed to the Court of Sessions on that charge. He was also charged with the substantive offence of murder. In the Court of Sessions the Public Prosecutor withdrew the charge u/s 302 with the result that the accused was acquitted of that charge. The learned Sessions Judge convicted him of the offence u/s 120B read with Section 302. The learned Judges observed that on the facts found in the case the offence was one of pure and simple murder, and the charge of conspiracy, which was substantiated after the withdrawal of the main charge, was misconceived, its practical effect being that the appellant was deprived of his right to be tried by a jury. The learned Judges set aside the conviction under both the sections and refused to order a retrial. Jogneswar Ghosh and Others Vs. Emperor, , the accused were charged with offences under Sections 395 and 399, Penal Code, and also with conspiracy to commit these offences. The charges under Sections 395 and 399 were tried by a jury who acquitted the accused. The learned Judge convicted them of the offence of conspiracy. Henderson, J. observed:

It would be most extraordinary thing if, when the main part of the case is disbelieved and an order of acquittal passed, the accused persons should be convicted on the substratum if any, which remains.

The learned Advocate-General refers to the decision of the Madras High Court in In re Pachaimuthu AIR 1932 Mad. 512. In that case five persons were charged under Sections 147, 353, 332 and 333, Penal Code, with rioting, assaulting and causing hurt and grievous hurt on public servants. All those offences were triable by a Judge with the aid of assessors. There was a charge of theft u/s 379, Penal Code, which was triable by jury. The jury returned a verdict of not guilty on the charge of theft. The learned Judge disagreed with this verdict and was satisfied that all the charges framed against the accused had been established. He, therefore, referred the whole case to the High Court u/s 307, Criminal P.C. It was held that as the charges of rioting, assault and causing hurt were triable without a jury, the learned Judge should have recorded his finding on these charges before making the reference. This case was relied upon by the learned Advocate-General for his proposition that in the present case the charges under Sections 460 and 148, Penal Code, should be retried if we are satisfied that the judgment on these charges is inadequate. It is quite clear that in the Madras case the acts which constituted the offence of theft were not the acts which constituted the offences not triable by jury. In that respect the case is entirely different from the case which is before us where the same acts which establish the charge of dacoity are the acts which must be relied upon to establish the other charges.

I hold, therefore, that all the convictions must be set aside, and the accused be retried on the charge u/s 395, Penal Code, only. Warrants will be issued for the arrest of the appellants and they will be detained in custody pending retrial.

Meredith, J.

I entirely agree. With regard to the adoption of a course which is in effect to deprive the accused of their right of trial by jury in Judagi Gope and Others Vs. Emperor, , I have already expressed an opinion identical with the conclusion arrived at, by my learned brother in the judgment just delivered.