KASHEM ALI Vs. EMPEROR

JUDGEMENT

(1.) The two appellants Kashemali and Maidan Parmanik with seven other men were put on their trial on a charge of dacoity under Section 395 and also under Section 412, I.P.C. The trial was held with the aid of a jury. The jury found two of the accused men not guilty and the remaining seven persons were found by them to be guilty. Kashemali and Maidan the two appellants before us were among those seven. As regards Maidan the verdict of the jury was unanimous. As regards Kashemali however it was divided-three jurors being of opinion that the man was guilty while the remaining two being of opinion that he was not guilty. The learned Judge accepted this verdict of the jury and sentenced Kashemali under Secs.395 and 412, I.P.C., to five years rigorous imprisonment and he sentenced the other appellant Maidan also to five years rigorous imprisonment under Section 395, I.P.C.

(2.) On the night of 15 January 1931 there was a dacoity in the house of one Tusuf, doctor. A pretty large number of men broke into his house, assaulted Yusuf, his wife and son, broke open the chest and an almirah and took away a considerable amount of money about Rs. 7,000 altogether from inside the chests. The occurrence took place at about 3 in the morning of 15 January and an information was lodged at the thana by one Serajul Huq, a nephew of Yusuf, doctor, on the same day at 9-30 a.m., the thana being six miles from the place of occurrence. In the first information report the name of one of the dacoits Sekandar was mentioned. An investigation followed and a number of arrests were made and as many as nine men were put on their trial with the result I have stated before. The evidence against the appellant Maidan consisted of the retracted confession of one of the dacoits Naimuddin by name and the test identification at which Maidan was identified. The evidence against the other appellant Kashemali consisted of the retracted confession of Naimuddin and the evidence of two men Ramproshad and Makbulali.

(3.) On behalf of the appellants the Judge's charge to the jury has been assailed before us on more than one ground. So far as the appellant Maidan is concerned the charge was attacked on three grounds. It was said that although according to the evidence of Serajul Huq (the man who lodged the first information report at the thana) Serajul Huq knew Maidan as a man of Dukhibari, in the first information report he did not say that any man of Dukhibari had been among the dacoits. But this fact was, as the learned Judge's charge to the jury would show, actually put before the jury. It was said that although according to the first information report, P.W. 3, Yusuf's wife, would be able to identify the man who had inflicted injuries on her, Yusuf's wife in her evidence in Court identified not only the man who had inflicted injuries on her but another man and the contention before us was that this fact was not put before the jury. Here again the charge would show that the learned Judge did tell the jury what evidence Yusuf's wife had given in Court, and he did tell the jury also that in the first information report Serajul Huq had stated that Yusuf's wife would be able to identify the person who had inflicted injuries on her.