NABI RASOOL Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against convictions and sentences under Section 395, I.P.C. The four appellants were placed on their trial before the Sessions Judge of Hughly on a charge of dacoity, the allegation being that at about midnight on 3 April 1941 they committed dacoity in the house of one Upendra Nath Das in village Morepookoor within the jurisdiction of the Serampore Police Station. They found no property of value in this house and took away only a small tin box containing boys school books. Immediately after committing this dacoity, they proceeded to the house of one Sheikh Aroon which is not far distant from the house of Upendra Nath Das and committed dacoity in that house also. They assaulted the householder Sk. Aroon and stole Rs. 170 in cash and a hurricane lantern and other articles. The jury returned a unanimous verdict in respect of the four appellants finding them guilty of dacoity. The learned Judge accepted the unanimous verdict of the jury, convicted the appellants of dacoity and sentenced them under Section 395, Indian Penal Code, each to undergo rigorous imprisonment for seven years.

(2.) According to the prosecution, the four appellants were arrested at 3-30 A.M. at gate No. 4 which is a level crossing over the railway line. Two constables had been deputed by the Officer in Charge of the Police Station to this gate after information of the dacoities had been received at the thana. One of the appellants, namely, Nabi Rasool, was carrying a hurricane lantern at the time of his arrest. On the day following the dacoity, four of the inmates of the houses in which dacoities were committed were sent to hospital for examination. On the same day, the four appellants were also sent to the hospital, because the investigation officer was of opinion that their breaths smelt of liquor and he wanted medical opinion on this subject. It is clear from the evidence on record that the four inmates of the looted houses and the four appellants were at the hospital at the same time. Some four days later, a test identification parade was held in the jail compound. The four appellants were identified by those four inmates of the looted houses who had been sent to the hospital for elimination. In addition to this piece of evidence the prosecution asserted that the hurricane lantern which Nabi Rasool was carrying at the time of the arrest was the property of Sk. Aroon, and the lantern was in fact identified by Sk. Aroon in the course of his examination. Another piece of evidence was also adduced by the prosecution. A mirror in the house of Sk. Aroon was seized by the police as it seemed to bear finger impressions. According to Sk. Aroon the mirror had been handled by the dacoits during the dacoity. When the impressions on the mirror were examined by a finger-print expert it was found that one of the impressions was the thumb impression of the appellant, Jumrati Meah. This was the evidence relied upon by the prosecution to establish the guilt of the four appellants.

(3.) Mr. Carden Noad appearing on behalf of the appellants has argued that the learned Judge did not point out to the jury that the evidence of identification by the four inmates of the looted houses was of no value whatever. According to Mr. Carden Noad, it was the duty of the learned Judge to point out to the jury that though a number of prosecution witnesses deposed that they saw the dacoits when the dacoity was being committed, and though seven persons in all were arrested on suspicion by the police only the four accused who were sent to the hospital on 4 April were identified and the only persons to identify even these four accused were the four inmates of the looted houses who had been sent to the hospital for examination. In view of these circumstances according to Mr. Carden Noad, the learned Judge ought to have told the jury that the evidence of identification was worthless. The learned Judge in dealing with this part of the evidence observed: Now, Gentlemen, let us consider certain matters relating to the test identification. It is certainly in evidence that Nitharbala, Becharam, Upen and Arun Sheik were at the hospital on the day the four accused persons were examined. They were there until 5-15 in the afternoon, that is, the last among the witnesses was examined at that hour, at 5-20 the Doctor began to examine the four accused persons. As was very rightly pointed out to you by the learned pleader appearing for Nabi Rasool, they were all, probably, at the hospital at the same time. It is for you to say, Gentlemen, whether you can take it that the accused persons and the witnesses were at the hospital, all together, and the witnesses had ample opportunity of observing the accused persons : you may consider whether it was because of this that the witnesses were able to identify them at the test identification. You may remember, in regard to this, that Upendra Das was not able to point out anyone but Nabi Rasool.