ARJUN PANDA Vs. EMPEROR

JUDGEMENT

(1.) 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 6 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 Secs.148 and 460, Indian Penal Code. The charge under Section 395, Indian 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 Secs.148 and 460, Indian 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.

(2.) 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.

(3.) 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.