DHIRAJI Vs. AKASI

JUDGEMENT

(1.) These applications arises out of a case under Secs.147, 366 and 457 of the Indian Penal Code which was tried by a jury in the Court of the Assistant Sessions Judge of Allahabad. The prosecution case was that the accused broke into the house of the complainant, Mt. Dhiraji, and forcibly carried away her daughter, Mt. Sartaji, in order that she might be married to the accused Basdeo. The defence was that the girl was lawfully married to Basdeo on the night in question and was taken away peacefully along with the bridal party.

(2.) The jury unanimously found the accused not guilty on the charge under Section 457, but convicted them by a majority of 4 to 1 oh the charges under Secs.366 and 147. The Assistant Sessions Judge accepted the verdict of the majority and passed sentence on eight of the accused accordingly. The remaining accused, Mt. Akasi, was released on probation of good conduct under Secs.562 of the Criminal P. C.. The Sessions Judge on appeal has set aside the verdict of the jury on the ground of non-direction amounting to misdirection and has directed are-trial before himself. Against this order three applications in revision have been filed. Revision application No. 747 of 1926 filed by the complainant, Mt. Dhiraji, and No. 71 of 1926 filed by the Government Advocate on behalf of the Crown to attack the learned Judge's order on the ground: first, that there was no misdirection: and, secondly, that the learned Judge had no power to direct a re-trial in his own Court. Revision No. 12 of 1926 was filed on behalf of five of the accused on the ground that it was open to the learned Judge to quash the conviction and acquit the accused, and that the Judge was wrong in holding that in case of misdirection the only course open to him was to order a re-trial.

(3.) The learned Judge finds, and it is not disputed by any party, that the summing up, so far as it goes, contains an accurate summary of the evidence given on both sides. The learned Judge sums up this matter by saying: Now counsel for the appellants have to admit that there is in this summing up no assertion of fact unsupported by evidence and no erroneous exposition of the law applicable to the facts alleged. The learned Counsel for the accused contend that in effect the jury were not directed at all, and that non-direction amounts to misdirection. The first question that I have to answer in this appeal is whether there was misdirection in this sense as the appellants contend.