ISTAHAR KHONDKAR Vs. EMPEROR

JUDGEMENT

(1.) In this case six men were charged with dacoity namely, Istahar Khondkar, Maijuddi, Azahar Ali, Adam Ali, Sonatan Patikar and Umacharan Patikar and one Jamini Kanta Nath, under Section 412, I. P. C. Two of them were acquitted, namely, Sonatan and Jamini, all the rest the jury found guilty of offences under Section 412. These five have appealed from jail. The learned Judge appears to have directed the Jury that if they thought that there was not sufficient evidence of dacoity, but that there was evidence that the accused dishonestly received or retained stolen property knowing it to have been transferred by the commission of dacoity or received from dacoits, they might find them guilty under Section 412, although no charge under this section had been made against any one of them, with the exception of Jamini. Of the five accused who have appealed from jail one, Umacharan Patikar, has been represented by Mr. Satindra Nath Mukerji. The rest are unrepresented. The point raised by the learned advocate on behalf of Uma Charan is, that the jury were not entitled to convict him of an offence under Section 412, because no charge was made against him under that section: Achpal V/s. Emperor 1926 Lah 132. This argument, of course, would apply to the rest of the appellants. Mr. Amiruddin Ahmed, who appears for the Crown, has argued that what the jury did was permissible under the provisions of Sub-section 236 and 237, Criminal P. C. that is to say, he has argued that this was a case in which the facts which could be proved were not in dispute or doubt; what was in doubt was the kind of offence which those facts would constitute, within the meaning of those sections: Mehr Sheikh V/s. Emperor 1931 Cal 414, and the cases therein discussed.

(2.) Now the facts were that a dacoity was committed, that none of the dacoity was recognised, but that some of the stolen goods were found about five to six weeks afterwards, in the possession of each of the accused. There was some evidence to show that each of the accused had taken steps to conceal the stolen goods. Two made confessions which implicated in the dacoity all of the accused except Jamini. The learned Advocate for the Crown has argued that this case comes within the ambit of Section 236, because there was no doubt about the facts which could be proved, and the only doubt which arose was what offence would be constituted by those facts, that is to say what inference would the jury draw from the facts. Would they consider that they were sufficient proof of an offence under Section 395, or of an offence under Section 412? He went further and suggested that though the facts were not in doubt, there was a doubt whether the jury would make one of the presumptions which they could make under Section 114, Illus. (a), Evidence Act, and which of those presumptions. Thus he argued that in cases to which that illustration applies, though the facts may not be in doubt, yet there will always be a doubt whether the Court will make such a presumption, and which presumption, the making of which is permissive and optional and therefore Sub-section 236 and 237 apply to all such cases. In my opinion, both these arguments are unsound. The facts which could be proved were that a dacoity had been committed by all the accused except Jamini, and that some of the stolen goods had been found, five to six weeks afterwards and partly concealed, in the possession of each of the accused. These facts could be proved by the confessions of Maijuddi and Azaharali and the evidence about the finding of the stolen goods. Whether the jury would believe the confessions and the rest of the evidence or not was and is irrelevant upon the point whether Sub-section 236 and 237 were applicable or not. Such a doubt is not contemplated by the sections. There was no doubt about the admissibility of the confessions. They had been recorded in the prescribed way by a Magistrate, were declared therein to have been made voluntarily, and prima facie would be admissible in evidence. There was no doubt about what offence the facts to which I have referred would constitute. They would constitute, against all except Jamini, the offence of dacoity.

(3.) Thus the evidence of dacoity was direct land not circumstantial, and if this evidence were believed by the jury to be true, the only possible inference which could be drawn from the proved facts would be that the accused, other than Jamini, were guilty of dacoity. The learned Advocate for the Crown has failed to appreciate the distinction between the doubt whether the jury would believe the evidence and the inferences which it was possible for them to draw, assuming that they did believe it. The doubt contemplated by the sections must arise at the time of charge. In order to decide whether such a doubt exists as will attract the provisions therein contained, the Judge must know at that time what facts "can be proved." Therefore this expression must mean facts about which there is evidence in the hand of the prosecution. What this evidence amounts to is disclosed in the depositions taken by the committing Magistrate and in any additional evidence which may be in the hands of the prosecution and of which notice has been given. This matter cannot be affected by considerations whether the prosecution will be able to produce this evidence at the trial, or whether the Court or jury will believe it if and when produced. With great respect for the decision of their Lordships of the Judicial Committee in Begu V/s. Emperor 1925 P C 130. I think that that decision will require to be reconsidered by them upon some future occasion. The facts which could he proved in that case against each of the accused clearly constitute both the offence of murder and an offence under Section 201, I. P. C., and, in my opinion, no doubt arose within the meaning of Section 236, Criminal P. C.