JIBAN KRISHNA DAS Vs. STATE

JUDGEMENT

(1.) The applt. was convicted by the Assistant Ses. J., Midnapore, under Section 395, I. P. C., in accordance with the unanimous verdict of the Jury & sentenced to R. I. for four & a half years. The prosecution case was that on 2-7-1949, at about 10 P. M. thirty or forty persons came into the house of the complainant Atul Bharati, broke open the bera of the southern room & opened the eastern khirki by means of a dhenki & that when they threatened to beat the inmates of the house, the male folk retreated, some outside the house & some to the roof of the house, after which they removed a number of articles from the house after breaking open some trunks. It is said that Atul Bharati's aunt, mother & sister were assaulted & their ornaments were taken away. It is further the prosecution case that the present applt. was recognised by the aunt, mother & sister of Atul Bharati.

(2.) The accused pleaded not guilty. His case was that there was no dacoity at all & the case was falsely instituted because of enmity between the complaint & the applt's. master Murari.

(3.) Mr. Mukherjee, the learned counsel appearing for the applt. made several criticisms against the learned Judge's charge to the Jury, one of which was that the learned Judge omitted to direct the Jury that the investigating officer did not follow the law as laid down in Section 161 (3), Cr. P. C., for recording the statements made by several of the witnesses during investigation. That the law was not properly observed in this matter is clear from the report of the investigating officer himself & is not disputed before us on behalf of the learned Advocate for the State. It must be held on the authority of the decision in the case of Bejoy Chand Patra v. The State, that the learned Judge ought, in such cases, to tell the Jury that the law has not been observed & that they may make a presumption against the prosecution from the fact if they so think fit in consideration of the circumstances of the case, & that the omission to do so is a misdirection.