DARGAHI Vs. EMPEROR

JUDGEMENT

(1.) The eight appellants were tried before the Sessions Judge of Hooghly and a Jury on charges of rioting and dacoity. Five of them, appellants Nos. 1, 2, 5, 6 and 7 were convicted of rioting only and sentenced each to one year's rigorous imprisonment. Two of them, appellants Nos. 3 and 8 were convicted of dacoity only and sentenced each to three years rigorous imprisonment. The appellant No. 4 was convicted on both the charges and was sentenced to three years rigorous imprisonment for rioting, the sentences to run concurrently.

(2.) The first point taken in this appeal is that the trial is vitiated for failure of the trying Court to comply with the provisions of Section 360, Cr. P.C. It is stated in the affidavit filed on behalf of the accused that the depositions were read over to the witnesses and that though this was done in the presence of the accused persons it was done in such a manner that the accused persons could not hear the evidence read; and further that while the evidence of one witness was being read over to him the evidence of another witness was being taken in the Court. To rebut this the prosecution have produced the statement made by the stenographer who read over the evidence to the witnesses. His account is that he read out the depositions of all the witnesses in the presence of all the accused persons, sitting at a place near the middle of the dock in which the accused were standing and he did so rather in a loud voice so as to reach the ears of all the accused during tiffin hours, and when the examination of the witnesses was finished for the day. We do not attach much importance to the question whether the evidence was read sufficiently loud to be heard by all the accused. If any of the accused had any ground to object that they were unable to hear they should have at once complained to the learned Sessions Judge and this could have been remedied. No such complaint appears to have been made at the time and we do not believe that the evidence was read in such a low voice that it could not be heard by the accused. But the other statement in the affidavit filed on behalf of the accused that the evidence was read over while the other witnesses were being examined is far more important. If this was done there was no compliance with the directions of Section 360, Cr. P. Code, since in that section the intention is that the evidence should be read in such a manner that the accused can hear what is being read and take objection to it. Obviously they could not at one and the same time listen to the evidence that is being read over and the evidence of a fresh witness that is being recorded. The statement on behalf of the accused is a statement on-oath. To rebut it there is nothing but the report of the stenographer which is not on oath. The learned Sessions Judge who held the trial has been transferred and there is consequently no report from him as to what actually happened. Under these circumstances we must hold that the sworn statement has not been rabutted by the unsworn statement. Further even if the stenographer's statement be accepted the method in which the evidence was read over would not be in accordance with the 1 clause of Section 360, Cr. P.C. That clause provides that as the evidence of each witness is completed it shall be read over to him. That means that the evidence shall be read over before the examination of another witness is commenced. It is unnecessary to consider whether such a failure to comply strictly with the provisions of this section would necessitate a retrial since as already stated we do not accept the stenographer's statement in preference to that in the affidavit and the affidavit shows that there was no reading over " in the presence of the accused " as we interpret those words. We must therefore hold that the trial was vitiated and a retrial must be ordered.

(3.) The learned Counsel who appeared on behalf of the appellants was prepared to argue 14 other points on behalf of his clients. We have not heard him on all these points. A large number of them may not arise when the case is reheard since they are based on the contention that there had been misdirection in the charge to the Jury. At the fresh trial, if there is a fresh trial before a Jury, the charge will be based on the evidence given in that trial, and it cannot be said that there is any probability that the mistakes if any in this connection would be repeated. But there were certain points of law which were urged which we have thought it necessary to consider in order that if there had been any mistakes they may be rectified at the trial.