ADELUDDIN ALIAS ADOO FARAJI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against a conviction and sentence under Section 412, Indian Penal Code. Four persons were tried jointly in the Court of the Additional Sessions Judge of Faridpur on charges under Secs.395 and 412, Indian Penal Code. The jury returned a unanimous verdict of not guilty in respect of one of the four accused persons, namely Ayesha Khatun and the learned Additional Sessions Judge accepted that verdict and acquitted that accused. The jury by a majority of 3 to 2 found the remaining three accused persons namely, Adu alias Adeluddin Faraji; Kamaruddin and Kalai Howladar guilty under Section 412, Indian Penal Code. The verdict is silent on the point but apparently the jury found them not guilty on the charge of dacoity. The learned Additional Sessions Judge accepted the majority verdict of the jury and sentenced the three accused persons each to undergo rigorous imprisonment for four years under Section 412, Indian Penal Code. All three convicted persons have appealed.

(2.) The case for the prosecution was that certain persons were proceeding in two boats with money to purchase jute. On the evening of 26 August 1943, they anchored their boats in a khal. They were attacked during the night by a gang of dacoits and their property was stolen. After information was given to the police, the usual investigation followed and three searches were made by the investigating police officer. On 29 August 1943, the house of the appellant Adeluddin was searched and an old umbrella with a bamboo stick was recovered from within the jute sticks kept on the loft of the building on the east bhiti. On 28 August 1943, the house of the appellant Kamaruddin Moral was searched and a number of articles were seized; three of these articles were subsequently identified; they are a tin tube, an umbrella and a money-bag and it is said that they are articles stolen in course of the dacoity. The tin tube and the umbrella were recovered not from the house of Kamaruddin but from a turmeric field adjoining that house and there is no evidence whatever to show how the articles found their way to the turmeric field. The money-bag was recovered from the possession of Isob Moral, brother of Kamaruddin. The third search was held on 30 August 1943, in the house of Kalai Howladar. In that search a black coloured old half-pant having three patches on the back was recovered which was not, however, the subject of the charge against Kalai Howladar. There was also seized one hand dao, but there is no evidence to show where exactly that hand dao was found and seized. The charge against Adeluddin under Section 412 was in respect of the umbrella found in the loft in his east bhiti house. The charge against Kamaruddin was in respect of the tin tube and the umbrella found in turmeric field and in respect of the money-bag found in the possession of his brother. The charge against Kalai Howladar was in respect of the dao said to have been found in his house. As the jury found the accused not guilty under Secs.395, Indian Penal Code, we are not concerned with the charge under that head. With regard to the charge under Section 412, the learned Additional Sessions Judge made three references in his charge to the law on the subject. In the early part of the charge he observed as follows : In establishing a charge under Section 412 the following facts have to be proved. That there was, in fact, a dacoity. That the accused or any of them retained in their possession any of the property which was carried away in the course of this dacoity and they so retained property in their possession with the knowledge that possession of the same was transferred in the bourse of a dacoity. In the latter portion of the charge the learned Judge observed: This is the evidence furnished by the find of the different articles and you are to consider whether in any of the four cases the evidence is sufficient to prove that the articles had really been stolen in the course of the dacoity and, further, whether they were found in exclusive possession of the respective accused. If you are satisfied on either of the above points, then, as already noted, you may infer from the fact of the articles having been recovered soon after the dacoity, that the accused or any of them retained possession of these articles with the knowledge that they had been stolen in the course of the dacoity.

(3.) The first reference to Section 412 in the charge is not inaccurate and was sufficient by way of introduction. The latter reference is seriously inaccurate. There is nothing in that to show that the jury had to be satisfied that the accused knew or had reason to believe that possession of the property had been transferred by means of dacoity. As this is essentially the only part of the charge in which the learned Judge attempted to apply the law to the facts said to be proved, the omission is material and we must hold that there was a serious misdirection in the charge.