SAMIUDDIN Vs. EMPEROR

JUDGEMENT

(1.) These three appeals arise out of the same trial and are now disposed of together. Appeal No. 509 is by the three accused persons Samiuddin, Bakshu Mia and Eunoch Mia; Appeal No. 550 is by the accused Nezamat Ali and Appeal No. 621 by the accused Naju Mia. The trial was held by the learned Additional Sessions Judge of Chittagong with the aid of a jury. The jury unanimously found the accused Samiuddin, Bakshu Mia, Eunoch Mia and Naju Mia guilty of an offence under Section 395, I.P.C. and they by a majority of 4 to 1 found the accused Nijamat Ali guilty of the some offence. As against Naju Mia, there was an additional charge under Section 75, I.P.C. The learned Additional Sessions Judge agreeing with and accepting the verdict of the jury as aforesaid convicted all these accused under Section 395, I.P.C., and sentenced Naju Mia to undergo rigorous imprisonment for six years and the remainder to undergo rigorous imprisonment for five years. At the hearing before us, Naju Mia and Nizamat Ali were represented by learned vakils while Samiuddin, Bakshu Mia and Eunoch Mia were unrepresented, they having preferred their appeal from jail.

(2.) As regards the facts, there is no dispute, and they may briefly be stated thus : A dacoity was committed in the house of one Jiban Kristo Chowdhury, a zamindar who had also a large money-lending business and his practice was to lend money taking ornaments by way of security. These ornaments were all kept in his house together with a considerable amount of money in cash. On the night of 14 January 1926, a large number of dacoits broke into his house armed with revolvers and swords and, by the light of electric torches broke open the chests and almirahs and took away a sum of Rs. 8,000 in cash and a large quantity of gold and silver jewellery. The first information was recorded at 3-30 p.m. on 15 January by the witness Saroda Charan Chowdhury 14 men were arrested on suspicion on 16 and two test identifications were held on 7 and 9 February respectively in which no witness was able to identify any of the accused persons. The trial continued for over two months and the result was that on 6 April 1926 the accused were all discharged. Nothing more happened until 28th July when the appellant Naju Mia was arrested and, on the following day, his house was searched and a certain number of ornaments some of which are said to have been identified subsequently as part of the proceeds of the dacoity were found. On 30 he was remanded to police custody and, on 2 August, he made a confession before a Magistrate which he afterwards retracted. On 4 October, a charge sheet was sent in which the names of certain of the appellants appeared and it was stated there that the accused Nizamat Ali had absconded, and it was not until 15 February 1927 that he was arrested. A test identification was held on 25 February and there the witness Sarada Charan Chowdhury for the first time identified Nezamat as one of the dacoits. Thereafter the trial proceeded with the result which has already been stated. Mr. Bhattacharji who has appeared for the appellant Nizamat Ali has raised certain objections to the learned Judge's charge to the jury. He says, in the first place, that the test identification which was conducted by a Magistrate of the 2nd Class who was not empowered under the law to hold an enquiry was bad and that, therefore, no evidence with regard to what happened in that test identification was admissible in evidence. He contends that though any Magistrate is competent to hold a test identification, yet if he is not empowered to deal with the matter under enquiry he cannot prove the statements which were made before him under the provisions of Section 157, Evidence Act. This contention does not seem to us to be well founded. It is plain that no test indentification could be held before Nizamat Ali was arrested and, as that did not occur until 15 February 1927 the test identification could not take place before that date, though, in point of fact, the enquiry with regard to the other appellants had already begun. Section 164, Criminal P.C. covers the case where a Magistrate acts under this section and records a statement made to him.

(3.) Mr. Bhattacharji next contends that the learned Judge has not charged the jury sufficiently in regard to the fact that the witness Saroda did not identify the appellant Nizamat Ali at the two earlier test identifications and that, in the first information which he lodged, he did not say that he had identified the man. We have examined the charge with great care and we are of opinion that there is no substance in this contention. We find, first of all, that the learned Judge told the jury in dealing with the evidence of Sarada that he (Saroda) noted the features of one of the dacoits. That man is Nizamat Ali. He had his face painted black with some white marks on it. He was taken inside the jail two or three times. He identified Nizamat Ali on the last occasion.