KASIMUDDIN Vs. EMPEROR

JUDGEMENT

(1.) The five appellants were placed on their trial with one Jamir Dai before the Assistant Sessions Judge of Dinajpur, Mr. S. S. E. Hattisngadi, and a jury on a charge Under Section 395, I. P.C. The jury brought in a mnanimous verdict of guilty as against these appellants. The learned Judge agreeing with that verdict has convicted the appellants as aforesaid and sentenced each of them to rigorous imprisonment for five years. The prosecution case shortly stated is that on 21 November 1933 there was a dacoity in the house of one Mobarak Ali. The dacoits, about 10 to 15 in number, forced their way into the house, assaulted the inmates, and took away ornaments and money. Some of the appellants were recognized as being among the dacoits. One Jamardi, husband of the sister of Mobarak, went to the thana and lodged the first information. Thereupon the police investigated and recovered some articles, alleged to have been stolen, from some of the appallants and one of them Kasimuddin made a confession which be retracted at the trial. The defence is a denial.

(2.) I may say here that we had some trouble over this simple case because the learned advocate appearing for the appellants thought fit to address us on the merits of the case without taking care to provide himself with a copy of the record, so that he was not in a position to refer us to those portions of the evidence on which he relied in his argument. The Crown however was represented by Mr. Rahim and we have examined the record for ourselves. The evidence as set forth in the charge to the jury may be divided into three classes, namely (1) the retracted confession of Kasimuddin, (2) the evidence as to the recognition of some of the appellants (by the inmates) and (3) the finding of the stolen property. For the present, we may leave aside the confession and the evidence as to the alleged recognition and take up the casa of those accused with whom stolen property is alleged to have been found. These are appellants Samiruddin and Asimuddin. The occurrence had taken place on 22nd November. On 9 December following the houses of these appellants were searched and two gold Koris Ex. 23 and a gold mache Ex. 24 were found in the house of Samiruddin, and a gold beshar Ex. 22 and a pair of silver arboukis Ex. 25 were found in the house of Asimuddin. The learned Judge while dealing with this part of this case set out the evidence, which is quite simple, fully and fairly. He at first drew the attention of the jury to the evidence as to the finding of these articles which in fact is not denied. Then he drew attention to the evidence as to the identification of the articles by Mobarak Ali, his mother, and his sister.

(3.) The first two identified all the four articles. The sister identified only two. Then the learned Judge also drew the attention of the jury to the circumstances under which the identification was made, namely, that there was a test identification carried out in the presence of the President of the Union Board. The sister stated that she saw her mother identifying the ornaments through a window, but the learned Judge was quite justified in drawing the attention of the jury to the fact that this sister herself did not identify all the four articles. Samiruddin claimed the two articles found in his house as belonging to his aunt and Asimuddin claimed the articles found in his house as belonging to his wife. But there is no evidence in support of this defence. The entire evidence was thus fairly placed before the jury and the learned Judge stated quite correctly that unless the accused could satisfactorily explain the possession of the articles the jury would be entitled to infer that these two accused were either among the dacoits or had received the properties knowing that; they had been stolen in the course of the dacoity. The jury believing the evidence returned a verdict of guilty. In the circumstances, we see no reason to interfere with the conviction of the appellants Samiruddin and Asimuddin.