NIRMAL KUMAR BHOWMIK Vs. EMPEROR

JUDGEMENT

(1.) The appellants before us are three persons named respectively Nirmal Kumar Bhowmik, Nihar Kumar Khan who is popularly known as Bolai, and Surja Kanta Haldar alias Saheb. Nirmal Kumar Bhowmik was charged with having committed an offence punishable under Section 366, I.P.C., and all the three appellants were charged with conspiring to commit that offence and with thereby committing an offence punishable under Section 366 read with Section 120.B, I.P.C. They were tried by the learned Assistant Sessions Judge of Hooghly. The trial was not altogether satisfactory. Under orders issued from time to time by the Local Government where an accused person is on his trial for an offence punishable under Section 366, he is tried by a Court of Session with the aid of a jury. On the other hand, it appears that trials of persons accused of offences punishable under Section 366 read with Section 120-B are held with the aid of assessors. With the laudable purpose of saving time the learned Assistant Sessions Judge empannelled a jury, and treated its members as jurors for the purposes of the trial of the appellant, Nirmal Kumar Bhowmik, for kidnapping, and as assessors for the purpose of the trial of all three of the appellants on the conspiracy charge. He charged them as jurors with respect to the charge under Section 366 and then took their verdict under that section, and they unanimously returned a verdict of guilty against the appellant Nirmal Kumar Bhowmik. The learned Judge then proceeded to question each "juror assessor" separately, and asked them their opinions on the conspiracy charge. They all stated that their opinion was that all the three appellants were guilty under that charge. The final order passed by the learned Judge was in the following terms: Agreeing with and accepting the unanimous verdict of the jury and assessors, I convict the accused Nirmal Kumar Bhowmik and Nihar Kumar Khan alias Bolai and Surja Kanta Haldar alias Saheb under Secs.366/120-B, I.P.C., and I sentence all the three accused persons to five years rigorous imprisonment each. Agreeing with and accepting the unanimous verdict of the jury, I convict accused Nirmal Kumar Bhowmik under Section 366, I.P.C. and sentence him to rigorous imprisonment for five years. Both the sentences to run concurrently.

(2.) The trial, in our opinion, furnishes another instance of the difficulties which constantly arise from the mania of the prosecuting authorities in this province for framing charges against accused persons under Section 120-B. It would have been far simpler in this case to have charged Nirmal Kumar Bhowmik with an offence under Section 366, and the other appellants with having abetted the commission of that offence. In our opinion even assuming that the learned Judge was justified in dealing with both charges at the same trial, he has not observed the provisions of the law, because he has not done what he is required to do by Section 309, Criminal P. C, that is to say, he has not given a judgment. In a trial with assessors it is the duty of the presiding Judge to ascertain the opinion of the assessors after summing up the evidence to them if he thinks it necessary, and then to deliver a judgment. That judgment must conform to the provisions of Section 367 of the Code, and must accordingly contain the reasons for the learned Judge's decision. We do not think that the section is complied with if the learned Judge merely states that he agrees with the opinion of the assessors. In this particular case we do not think that any miscarriage of justice has been occasioned because the learned Judge clearly was aware that he was dealing with the conspiracy charge as a charge triable by him with the aid of assessors; and we consider we are justified in crediting him for having weighed the evidence and made up his mind that the case for the prosecution was satisfactorily proved independently of the opinion expressed by the assessors. We trust our observations will be noted by learned Sessions Judges in the province because it is easy to conceive a case where considerable difficulties would arise if a course similar to the one that has been followed in this trial were adopted.

(3.) We now have to deal with the facts of the case. The story is that there were two-families living in a house at Serampore. The head of one family was a gentleman named Mohini Mohan Choudhury who had a son named Manindra Choudhury. Mani is said to be implicated in the offence which is the subject matter of this appeal, but he has hitherto evaded arrest. Appellant 1, Nirmal, is closely related to Mohini Mohan Choudhury and he came to live as a member of the family in the house at Serampore in April or May of last year. In another part of the house there lived the family of a man named Panchanon Banerjee. Panchanon lived with his wife and three daughters, the eldest of whom is named Renubala, and is the girl who was the victim of the offence with which the appellants were charged. Renubala, it is stated, had just completed her fourteenth year in the beginning of August 1937. The second daughter who gave evidence at the trial is a girl of eleven, and the youngest daughter a girl of four years and a half.