SUMERA Vs. EMPEROR

JUDGEMENT

(1.) Six persons named Sumera, Badri Bisal, Shyam Lal, Nannhoo, Debi Dayai and Bissey were tried by the learned Sessions and Subordinate Judge of Cawnpore, for an offence punishable under Section 395, I.P.C. The trial was by jury. The jury unanimously returned a verdict of guilty against Sumera, Badri Bisal and Shyam Lal accused and by a majority of 3 to 2 the jury held that the charge was also brought home to Nannhoo. The learned Judge accepted the verdict of the jury as regards these four persons and convicted them. The present appeal is by the four convicted persons. The jury returned a unanimous verdict of not guilty as regards Debi Dayal and Bissey. The learned Judge disagreed with the verdict of the jury and has referred their case to this Court under Section 307, Criminal P.C., with the recommendation that the verdict of the jury so far as Debi Dayal and Bissey are concerned be set aside and they be convicted under Section 395, I.P.C. A reference to the charge to the jury discloses serious misdirection's by the Judge and as we have arrived at the conclusion that the verdict of the jury is vitiated owing to such misdirection's we have decided not only to refuse to accept the reference, but to allow the appeal and to set aside the conviction of the four accused who in accordance with the verdict of the jury have been convicted by the learned Judge and to direct a retrial of all the six accused. We have refrained from going into the evidence in the case with a view to satisfying ourselves as to the propriety of the conviction of the four accused persons named above as, by so doing, we would be substituting our decision for the verdict of the jury and this, for obvious reasons, is undesirable.

(2.) In order to appreciate the misdirection by the Judge it is necessary to set out the facts and the extracts from the charge to the jury in some detail. A dacoity is alleged to have been committed in the house of a man named Beni Madho in village Sukhanevada on the night of 17 May 1932. A report of the occurrence was made in Sheorajpur police station by the Chaukidar of the village on 18 May at 8 a.m. it Chunni Lal, the officer in charge of the station, proceeded at once to the scene of the occurrence and commenced the investigation. A list of the looted property was given to him by Beni Madho. Nannhoo accused was arrested on 22nd May, and on 21 May the investigating officer arrested Sumera, Badri Bisal, Hhyam Lal and Badlu. Badlu Was made an approver in the case. He is alleged to have given certain ornaments to the investigating officer which according to the case for the prosecution belonged to Beni Madho and were taken away by the dacoits. The confession of Badlu was duly recorded by a Magistrate on 26 May. Bissey accused was arrested on the 5 July. Three accused, viz., Debi Dayal, Bissey and Shyara Lal, are residents of village Phando which is at a distance of about four miles from Sukhanevada. The accused Sumera, Badri Bisal and Badlu, approver, reside in village Judaypur which is also at a distance of four miles from Sukhanevada. The accused, Nannhoo Brahman resides in village Birdha which is at a distance of only two miles from Sukhanevada. The evidence against the accused consisted of the statement of the approver, the alleged recovery of certain articles from the house of some of the accused and their identification by witnesses who professed to have recognized them at the time of the dacoity. In his charge to the jury the learned Judge at first set out the evidence of the approver. The statement of the approver is rich in details. According to the approver the dacoity was organized at the instance of Nannhoo Brahman who has got certain relations residing in village Sukhanevada. The approver has given details about the operation by the dacoits at the time of the commission of the dacoity by them. After sotting out the evidence of the approver the learned Judge in his charge observed that the important evidence in the case was that of Badlu Brahman and then noticed the argument of the defence counsel that although, according to the statement of the approver, he was asked by the Magistrate, who recorded the confession, to speak the truth, the confession was the outcome of inducement and was inadmissible in evidence. The Judge characterized this argument as hairsplitting and observed that: You have seen Badlu in the witness-box. He appears to be a simpleton and has got a foolish appearance. The Magistrate who gave the pardon and the Magistrate who recorded the confession, have to be believed rather then Badlu.... It is difficult to agree with the argument of the learned advocate for the defence and my interpretation of law is that Badlu was legally made an approver...and that his confession recorded under Section 164, Criminal P.C., is also in accordance with law.... Badlu said that there was a police constable with him in the Court room of Birendra Pratap Sahi (Magistrate). It has been argued by the defence counsel that the confession of Badlu could not be considered to be voluntary on account of this fact. Badlu has not stated the time up to which the police constable was present. The Deputy Magistrate has stated that Badlu was in the custody of his own peons for more then three hours. The evidence of the Deputy Magistrate should be preferred. Badlu was never in jail. He was kept in Nawabgunj Thena. This fact does not seem to be of much importance. When Badlu had once made the confession and it was recorded under Section 164, Criminal P.C., it was immaterial whether he was kept in jail or in some then. It was rather safe for the prosecution to have kept him aloof from other accused so that he may not be influenced by them to retract his confession. The Darogha, Pt, Chunni Lai, has explained that there was congestion in Cawnpore Jail where there was no separate accommodation for Badlu and hence he was kept in Nawabgunj Thena by the order of the Court.

(3.) The learned Judge then told the jury that it is the established practice not to act upon the evidence of the approver unless it was corroborated in material particulars and observed that "the approver has been corroborated on material points." He then detailed the facts deposed to by the approver which in his opinion were corroborated by the evidence of other witnesses. The Judge then proceeded to detail the result of the identification proceedings held in jail and observed that the identification in this case is very good.... It has been argued by the defence counsel that the identification is so good that it leads to the inference that there is some flaw in it. I may tell you that there is no flaw in the identification proceedings. Four of the accused, namely Debi Dayal, Badri Bisal, Shyam Lal and Sumera were arrested on 24 May 1932, and were taken to the thena together. They stated that on the Canal Bridge of Jagatpur they were shown by the Darogha to six men, three girls and one widow, who were all probably of Bukhanevada. It has been argued that it was difficult for the accused who werein jail to have proved this fact. The law does not allow us to act upon conjectures and surmises. Every fact must be proved before it is acted upon. The accused in spite of their being in jail have been able to engage counsel and produce witnesses on other facts. No question about this fact was put to the constable who took them from the police of their arrest to the thena. The Darogha Pt. Chunui Lal, who was asked this question, said on oath that ho did not accompany these accused to the thena.... On one side there is the simple statement of the accused and on the other side there is the sworn testimony of a responsible police officer. The accused are given no oath under the law and they are entitled to say any thing and everything. In face of such good identification the accused could not have taken any other plea except the common plea that they were shown to the witnesses by the polios. The machinery of the Government consists of police officers whose duty is to arrest tin. daecits and take them in purdah from the place of their arrest to the thena and then to the jail. It is presumed that they do their duty as prescribed by law. The police officers are not the masters of their own actions, but they have to account for their conduct to their superior of pears. If it is known that they violate their duties they are liable to be sacked. You are therefore to presume that the evidence of the police officers is correct and that the accused were taken in purdah as prescribed by law from the place of their arrest to the thena and they wore not shown to anybody. If the accused allege that they were shown to the witnesses it lies upon them to prove this fact.