DAUD SHEIK Vs. EMPEROR

JUDGEMENT

(1.) In this case, the appellant was charged under Secs.395 and 412 oft the Indian Penal Code, and tried by the Sessions Judge of Murshidabad and a jury, who found him guilty under Section 412 and sentenced him to five years regorous imprisonment.

(2.) There was no doubt that a docoity was committed in the house of one Ram Chand when he and his family were asleep. There were 12 or more dacoits and they broke into the house but eventually went away when the villagers appeared. They took certain properties with them. This accused made a confession, but the learned Judge decided that it was not a Voluntary confession and, therefore, refused to admit it in evidence. Unfortunately he seems to have made the common mistake by allowing the Magistrate who recorded the confession to give evidence that a confession had been made by the accused, before deciding the question whether it ought to be admitted or not. As I have already pointed out in a recent case it is no good telling the jury first that the accused has made a confession and then sending them out of Court while the question is discussed whether the confession ought to be admitted or not. A great deal of damage has already been done by the mere statement that the accused has confessed. The words of the confession, if excluded, are not brought to the attention of the jury, but nevertheless they have heard that something in the way of a confession has been made and that for some reason or other, the Judge has ordered it to be. excluded from evidence. However, the learned Judge told the jury that he had excluded it, because he came to the conclusion that the accused has not made it voluntarily, and begged them to forget that the accused had made a confession. The Judge in order to try and remove from the minds of the jury any prejudice to the accused, told them that they might suppose that he had incriminated other persons and not himself. The admission of the statement hat he had made a confession and retracted it was of course of supreme importance in considering the question whether he was guilty under Section 412 because, as the Judge told the jury, they ought to come to a conclusion whether he had knowledge of the dacoity. There was no other evidence that he had taken part in the dacoity, no one had recognised him, though some witnesses spoke to the fact that they had seen him going in the direction of the dacoity. As the Judge pointed out "The Urga is not at the end of the world and he may have been going to some place beyond it. In view of the evidence the learned Judge ought to have withdrawn from the jury the charge under Section 395. Nevertheless, he allowed this charge to go to the jury and as they did not mention it when they brought in their verdict, it must be assumed that they found the accused not guilty of that offence.

(3.) The learned Judge then directed the jury with regard to the offence charged under Section 412. His charge on this point contains serious mis-directions. He said as follows: The law allows, you to assume that if stolen property is found in a man s, possession, he knows at to be stolen property until kit proves the contrary.