KALI CHARAN HALDAR Vs. EMPEROR

JUDGEMENT

(1.) The appellant Kali Charan Haldar was tried with one Afazuddin Sheikh by the Additional Sessions Judge at Malda and a jury of nine, charged with an offence under Section 396, I.P.C. The jury found the appellant guilty" unanimously. By a majority they found Afazuddin "not guilty." Thereupon the Judge acquitted Afazuddin, accepting the verdict of the jury and sentenced the appellant to death, saying that he had admitted several previous convictions in dacoity cases, that he was a hardened criminal, obviously dangerous, that he should be removed from further possibility of harming society and that he had withdrawn from his confessional statement which might have been regarded as a sign of grace. The appellant had no pleader to defend him and, therefore he was defended by a pleader appointed by Government.

(2.) The facts cut of which this case arose are shortly as follows: On 2 April, 1932, there was a dacoity in the house of a man named Kristo Mandal. He and his son were away at the time. But a number of women belonging to his household were sleeping there. None of the dacoits were recognizable, because they had smeared their faces with chalk. There is no doubt whatever about the dacoity having been committed. The dacoits beat the inmates of the house, dug up the floor and broke into all the rooms. While the dacoity was going on, the villagers were roused and the house was surrounded by the choukidar and a servant Nimai who called for assistance. When the dacoits saw this, they fired a gun from inside the house wounding some of the people outside. Then they came out of the house and escaped. The choukidar threw a spear at them and struck one man. Kulu who had been sleeping on the verandah of the house with Nimai threatened to attack them. They fired a gun and he fell down dead. Suren also fell down dead. The man whom the choukidar had injured with a spear died of his wounds; but the dacoits picked him up and escaped. The choukidar want into the house and found that Khiroda had been injured and that a dacoity had been committed. Information was lodged at the thana and the Sub-Inspector took up the investigation. Daring the investigation he found a head which had been cut off from the dead body of the dacoit who had been speared by the chowkidar. Owing to the fact that none of the dacoits had been recognised, the investigation went on for several months without success. It is clear that the investigation would never have been successful, had it not been that the present appellant made a long confession in which he admitted a series of crimes and implicated a large number of persons, including himself. One of the women said that the dacoits took a pair of makri, a pair of patchuri, two pairs of ruli and other things. Subsequently, some of these articles were recovered as I shall explain hereafter, and ware identified by the women of the house.

(3.) An old woman named Harimani was examined who said that the appellant stayed with her before the dacoity for three days and after the dacoity he and Afazuddin again stayed with her for three days and that the appellant hid some churis in the floor of her room. She said that they were in the floor of her southern hut, but, in fact, they were recovered from the northern hut. She says that she heard about the dacoity in Kristo Mandal's House at that time. Subsequently, the Sub-Inspector searched her house and, according to her evidence, the appellant, who was still there, escaped at the time. It is said that she knew the appellant some years before when he had been her neighbour at a place called Haripur, At a later date the appellant was taken to her house and there in the presence of the search witnesses he produced a makri from the thatch. It is clear therefore that this conviction must depend substantially on the question whether the appellant's confession can be relied upon. The evidence of the beggar woman, Harimani, admitting, as she does that some of the stolen property was given to her by the appellant, cannot be considered satisfactory and the evidence with regard to the discovery of the makri in the thatch is suspicious. It is true that the rest of the goods were found in the hut, and it seems curious that this piece of ornament should have been hidden in the thatch of the house. There is some reason to think that as the makri was an article which the woman of the house seemed to remember very clearly, somebody thought it necessary that the makri should be produced in order to strengthen the evidence for the prosecution. The confession was retracted and was apparently challenged by the pleader who appeared for the appellant at the trial. Thereupon the learned Judge dismissed the jury for the day and heard the arguments in their absence. This was the proper procedure. Where it is convenient for the jury to be out of Court while there is such a discussion, it is, always desirable.