AKAN CHUTIA Vs. STATE

JUDGEMENT

(1.) THIS appeal is on behalf of three persons, Akan Chutia, Dom Chutia and Boga Sheikh, all of whom were convicted under Section 395 I.P.C. and sentenced to five years' rigorous imprisonment each. The trial was with the help of a Jury and the verdict was unanimous. The Judge accepted the unanimous verdict and convicted the accused persons on the charge of dacoity under Section 395 I.P.C.

(2.) THE main ground of attack against the conviction was that ten persons were tried together charged with the offence of dacoity out of whom, only three have been found guilty and the rest were acquitted. Section 391 I.P.C. requires that When five or more persons conjointly commit or attempt to commit a robbery .. every person so committing, attempting or aiding is said to commit 'dacoity' and where the number of persons taking part in the transaction is less than five, there can be no dacoity and as such, the conviction of these persons under Section 395 I.P.C. has been bad in law. In support of this contention, the learned Advocate for the appellants has relied on three decisions, they being - 'Emperor v. Ikramuddin' AIR 1917 All 173 (A); - Girdhar v. Emperor' AIR 1927 Lah 519 (B) and -'Pidda Enumudugaru v. Emperor', 11 Cri LJ 249 (Mad) (C). Of these three decisions, - 'AIR 18S7 Lah 519 (B)', is the latest though decided in 1927 and the other two cases were also discussed in that judgment. In all these cases, it was held that when five or more persons are jointly tried of an offence of dacoity and if the number of persons convicted are found to be less than five, the wiser course is to convict the accused under Section 392 I.P.C. and not under Section 395 I.P.C.

(3.) THERE is another aspect of the case which though not seriously pressed by the learned Advocate for the appellants, strikes me as of grave consequence. It is an established principle of law that in a case of joint trial, it is an imperative necessity to keep clearly separated the evidence against each of the accused - 'Joseph Connel v. Emperor' AIR 1947 PC 186 (D) and it is desirable, if not obligatory that the Judge in summing up should marshal the evidence as it affects each individual accused and say what can be said in favour of the accused. Where, however, all the evidence was such that it affected all the accused persons equally or not at all, the omission to divide up the evidence may not be called for by the circumstances of the case and no injustice might be caused. But in a case like this, where the evidence against the accused persons differed widely as to their quality or Intensity, the case of each individual accused ought to have been separately discussed and evidence against each should have been carefully sifted, weighed and marshalled so that the Jury might get a clear impression as to the evidence against each of the accused persons separately. Mere saying that 'you are to consider the case of each accused person separately' is not enough. The purpose of summing up is lost or no justice is done to Section 297 of the Criminal Procedure Code itself if the jury is left to form a clear impression about the evidence all by themselves.