GIRISHCHANDRA NAMADAS Vs. EMPEROR

JUDGEMENT

(1.) The appellants were charged with dacoity under Section 395, I. P.C. They were tried by the Additional Sessions Judge of Mymensingh and a jury, and convicted and sentenced, Girish, to three years rigorous imprisonment and Karim and Rahim each to four years rigorous imprisonment. It is not necessary to deal with the facts of this case. There was clear evidence that a dacoity had been committed and that Girish, among others, had been engaged in committing it.

(2.) Several points have been taken on behalf of the appellants, the first of which touches the verdict of the jury. When asked what their verdict was, the jury said that they found Ismail, who was another of the accused on trial under Section 412, not guilty and they found the remaining eight accused guilty and they named them. But they mentioned only seven names. After the last answer which was recorded, the foreman was asked whether all the jurors found all the eight accused named above (presumably the names were read out to them again) guilty under Section 395 and he said: "Five of them are guilty." Then the Court asked the jurors to state whether they found whether five of the accused were guilty of having committed dacoity and whether the rest were not guilty of that offence but guilty of some minor offence. Then there was a discussion at the Bar, with the result that the Judge explained the law under the appropriate sections of the Indian Penal Code and asked the jury to retire again. Eventually the jury came back and stated that they found all the accused guilty under Section 395.

(3.) It is argued that there was some confusion in the minds of the jury and that the learned Judge should have re-charged the jury upon the facts, in addition to explaining the law. We do not think that this contention can be upheld. The only confusion which seems to have arisen was that they were not sure in the first place of the names of the accused and only named seven of them. Otherwise the first verdict they gave was clear. After that the Court added to the confusion by asking them again whether they found all the accused guilty under a particular section, namely, Section 395. That seems to have led to some misconception on the part of the jury, which induced them to mention the number "five." However, after discussion, which doubtless took place in their presence, and after a fresh direction about the various sections had been given, they retired to reconsider their verdict and came back and gave the second verdict. In the circumstances, we do not think that the conviction can be set aside upon this ground.