Emperor vs Ram Sewan Mistri and Others

Beevor, J.—The persons whose case is now before us were committed to the Court of Session on a charge u/s 396, Penal Code, for having about mid-night between 20th and 21st May 1942, committed dacoity at Bhagyoga, Police-station Paliganj, District Patna in commission of which dacoity one Earn Bishun Dusadh was murdered. In the Sessions Court charges of rioting with the common object of assaulting Rajju Sinha, Sukhdeo Sinha and their men were added, five persons being charged with rioting u/s 147 and the remaining eight u/s 148, Penal Code. A further charge u/s 326/149 against all the thirteen was also added on the allegation that some of the members of the unlawful assembly caused grievous hurt on Earn Bishun Dusadh in prosecution of the common object of the unlawful assembly in which rioting was committed.

All the charges added in the Sessions Court were tried by a jury of five who unanimously held those charges proved against all the persons against whom they had been framed. The charge under Section396, Penal Code, was tried with the aid of assessors and the five jurors in their capacity as assessors unanimously held this charge proved against all the accused. The learned Additional Sessions Judge, however, disagreeing with all the assessors acquitted all the accused of the charge u/s 396, Penal Code, and disagreeing also with the verdict of the jury he referred the case of all the accused to this Court under the provisions of Section 307, Criminal P. C. An appeal has been filed by Government against the acquittal of all the accused on the charge u/s 396, Penal Code. We are informed that Roshan Gope one of the original 13 accused has died and we are no longer concerned with the case against him.

Very briefly, the prosecution version of the occurrence was that Sukhdeo Sinha (P.W. 3) and his wife, Sonmukha Kuer (p.W. 16), were sleeping in one of the rooms of their house while their daughter,Telaria (P.W. 17) aged 13, was sleeping on the osara in front of that room. Sukhdeo Sinha woke on an electric torch being flashed on and saw three persons jump down from the partition which separated that room from an adjoining room. It is said that those three were the accused Earn Sewan Mistry, Deosaran Mistry and Jadu-nandan Gope, all three of whom were armed. They started taking out of that room some boxes which contained ornaments which had been presented about a month previous to Dularia, another daughter of Sukhdeo on the occasion of her marriage, as well as clothes, miscellaneous articles and cash to the extent of Rs. 100. As the thieves moved out, Sukhdeo Sinha (P.W. 3) followed them and the accused Deosaran struck him with a bhala. Telaria caught the accused Ram Sewen by the leg but he struck her with a tangi on the head. Sukhdeo however followed the thieves outside and raised an alarm, on which various persons of the village turned up and several of them received injuries at the hands of different members of a band of about 30 or more persons, including the three accused who were said to have entered the house of Sukhdeo Sinha as well as the other accused. After some time this band is said to have moved off towards the south-west. Among the persons injured was Earn Bishun Dusadh who was taken to hospital where he died at 8-30 P. M. on 24th May 1942. It was found that a bagli had been cut in the main door of the house of Sukhdeo Sinha. A bagli is a small hole cut in the door to enable a person from the outside to insert his hand and unlatch the door and so open it.

The first information report was lodged at Paliganj Police Station two miles from the scene of occurrence, at 3 A. M. the, same night. This was lodged by Jaggan Dusadh, Chauki-dar (P.W. 1). Therein he mentioned that he ran to the scene of occurrence on the alarm, "thief, thief", and he named six of the accused as persons whom he recognized among others surrounding Eajju Sinha. He was accompanied to the police station by Jagarnath. Sinha (P.W. 2). After investigation the police submitted charge sheet against all the accused. The defence did not deny the occurrence, but denied that any of, the present accused took part in it. Eajju Sinha (P.W. 6) is one of the persons whose houses are close to that of Sukhdeo Sinha. The accused alleged that this Eajju Sinha, who was the gomasta of Mahant Madhvanand, went on collecting rent after the death of the mahant, but the receipts granted by him were not recognized by the mahant''a successor who obtained decrees for rent against the tenants who held receipts granted by Eajju Sinha. They therefore suggested that such tenants might have been responsible for this occurrence. The defence also urged that there was a particular reason for implicating the present accused falsely. They alleged that there was a dispute over irrigation of the two villages Bhagyoga and Achua from a certain irrigation channel and that there had been some Occurrence over that irrigation channel about 3rd May 1942 in which some of the accused, Earn Sewan Mistry, Par-meshwar Mistry, Dhaneshwar Gope and Dewan Gope were caught by Jhakuri Singh, father of Jagarnath Sinha (P.W. 2), and others and were taken to the police station, where Jhakuri Singh started a false case against them alleging that he had, caught them coming out of his dalan with some others. These persons were released on bail a day or two before the occurrence in the present case. On the other hand the prosecution urged that that previous occurrence and the criminal case arising out of it would form a motive for the present accused to take part in the occurrence with which we are now concerned.

It is certainly proved that Rajju Sinha was the gomasta of Mahant Madhvanand and according to his evidence he was also collecting rent under the order of the Court during the legal proceedings which arose between two claimants to the estate of Mahant Madhvanand. There is however no evidence to show that he collected any rent illegally or issued bogus receipts. There is also no evidence that there was actually any dispute between the inhabitants of the two villages over irrigation. Exhibit A is the judgment of Mr. Miller, Honorary Magistrate with first class powers, dated 30th November 1942 by which he acquitted Ram Sewan Mistry and others in the case brought against them by Jhakuri Singh. He found that the case put forward by Jhakuri Singh was false and he expressed the opinion that the defence version of a dispute over irrigation was more probable. Exhibit 8 is the order sheet of that case. It is clear however that there was no actual evidence before him of any dispute over irrigation and this judgment (Ex. A) cannot be used as evidence to prove either the existence of such a dispute or the nature of the actual occurrence which preceded the criminal case brought by Jhakuri Singh. The learned Additional Sessions Judge however appears to have used this judgment as evidence on these points. Before considering the possibility that any of the accused is guilty of any offence, it is necessary to come to some conclusion regarding the nature of the occurrence. Dacoity includes robbery which in turn includes either theft or extortion. In this case, if there was any robbery it was a case of theft and not extortion. u/s 890, Penal Code,

Theft is ''robbery'' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to Cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.

If this story told by the prosecution is at all true there was theft and there was also hurt caused in the same occurrence. If the culprits contemplated causing hurt for the purpose of committing the theft or for the purpose of taking away the goods stolen the offence will amount to dacoity. But if the hurt was caused for some other purpose, the charge of dacoity will not stand. If this occur rence was really a case of dacoity it has cer tain remarkable features. First there is the bagli. This method of entering a house is usu ally adopted by persons who hope to escape entirely undetected. Dacoits on the other hand usually have no hesitation about making their presence known. A bagli, therefore, is not a method usually adopted by dacoits for enter ing a house.

The evidence of the occurrence may be considered in two parts. First there is the evidence of what took place in the house. On this point we have the evidence of Sukhdeo Sinha (P.W. 8), his wife, Mt. Sonmukha Kuer (P.W. 16) and his daughter Telaria (p.W.17).

Telaria received injuries and she states that, the accused Earn Sewan struck her on the head with a tangi when she held his leg as he was-getting boxes removed. She was found inside the house by Abdul Hamid (p.w. 19) who was then the Assistant Sub-Inspector of Police. The doctor (P.W. 7) who examined this girl stated that he would have expected a graver injury on the head of Telaria had she been struck with force with the tangi shown to him. Even if Telaria was struck in the way she alleges, the possibility that this was an individual act of robbery must be considered. The evidence of Mt. Sonmukha Kuer appears to me very unsatisfactory in several ways; and I do not think it is possible to rely on her statements in order to form a clear picture of what happened in the house. Sukhdeo Sinha (P.W. 8) also received an injury. He says that the accused Deosaran struck him with a bhala. According to his evidence this happened in the osara but he also says that he followed the ''dacoits'' out of the house. The injury found by the doctor on this man was a punctured wound 2 1/2" x 1/2" x 3 1/2" on the left side and middle part of the sternum. It seems almost impossible to my mind that this man moved very far after receiving this injury. The A. S. I. found him with other injured persons, outside the house and from. the evidence of Jagarnath Sinha (P.W. 2) it would appear that he met Sukhdeo Sinha outside the house after the occurrence was over. This also seems to. be supported by the evidence of Prayag Sinha (P.W. 5) and I think on the evidence that Sukhdeo Sinha must have been outside the house when he received his injury. This therefore was after the boxes had been removed from the house. Now of the witnesses who arrived on the alarm, Eajju Sinha (P.W. 6) would appear to have been one of the first because when the other witnesses arrived they saw him being attacked, yet neither Rajju Sinha nor any of these other witnesses gives any evidence of seeing anything being removed. There is no evidence to suggest that theft was committed anywhere else or that any attempt was made to enter any house after the boxes were removed from Sukhdeo Sinha''s house. Several of the witnesses speak of seeing a number of the offenders near about the well. Jagarnath Sinha states that those persons used to assault people who came near them. This appears to be supported by the evidence of Jaggan Dusadh (P.W. l) as well as the evidence of Racheya Dusadh (P.W. 4) and Prayag Sinha (P.W. 5) as well as the statement of Chandrika Sinha (P.W. 9). The evidence of p, Ws. 10, 11, 12 and 14 also is consistent with this story.

Now it is certainly a common experience in dacoities that one batch of the dacoits may act as an armed guard while other dacoits actually do the work of entering houses and committing theft. But in this case the entire theft must have been completed and the booty removed before the prosecution witnesses were attacked and injured near the well. There is nothing to show that the offenders were hindered from retiring. In view of these considerations, I think, it is at least doubtful whether any of the injuries with the possible exception of the injury on the girl Telaria were inflicted for the purpose of carrying stolen property. All the evidence seems to me more consistent with the view that there was first a case of house-breaking and theft without any general intention of causing hurt though there may have been one individual who caused hurt to Telaria for the purpose of carrying away stolen property. Then, when the theft was over there was an independent assault on any of the villagers who dared to come to the spot. I, therefore, hold that the charge of dacoity has not been established, but it is clear that there was an unlawful assembly with the common object of assaulting Rajju Sinha, Sukhdeo Sinha and their men; and it is also clear that in prosecution of that common object some persons caused grievous hurt to Ram Bishun Dusadh with some sharp weapon sueh as a spear. The doctor who first examined him (P.W. 7) considered the injury simple but the evidence of Dr. G. B, Sahay who held the post-mortem examination shows that it was dangerous to life. The persons who took part in the occurrence would, therefore, be guilty of rioting either u/s 147 or Section 148 and also u/s 326/149, Penal Code.

I now proceed to consider the question whether it is satisfactorily established that any of the accused took part in the occurrence. Of the accused in this case, Ram Sewan Mistry, Parmeshwar Mistry, Dhaneshwar Gope and Dewan Gope, were the four persons arrested in the previous criminal case. Many of the other accused are close relations of those four and the only accused who does not appear to be related to them is Mukhi Koeri. Most of the prosecution eye-witnesses are Bhumihar Brahmins and it is established that they are all related to one another. Of the remaining eye-witnesses, Jaggan Dusadh, Choukidar, took a prominent part in the previous criminal case and, I think, it is noticeable that among the six persons that he named in the first information report as identified by him in the occurrence, he included all the four men who had been arrested m the previous criminal case. Racheya Dusadh (P.W. 4) and Rupdhari Dusadh (P.W. 10) are ploughmen of Rajju Sinha (P.W. 6) as is proved by the evidence of Jagamath Sinha (P.W. 2), though Rupdhari has denied this fact. Rupdhari was also a witness in the pre. vious criminal case. The only other eye-wit-ness is Narayan Gope (P.W. 12) who was not examined by the police until 7 or 8 days after the occurrence.

Before dealing with the evidence of individual prosecution witnesses there is one matter to which I wish to draw attention. In this case, as in many cases, the defence has utilized statements recorded by the investigating police officers under the provisions of Section 162, Criminal P. C., read with Section 145, Evidence Act, for the purpose of contradicting statements made by these witnesses in Court. Among the witnesses whom the defence sought to contradict in this way is Shyamnandan Sinha. From the evidence of S. I. Abdul Hamid (P.W. 19) it is proved that he recorded the statement of Shyamnandan Sinha and that the only note on the statement is that he supported Jaikishun, a man who made a statement before the police as a witness but died before the trial. Sub-Inspector Abdul Hamid stated that Shyamnandan and Jaikishun were examined in the absence of one another. He agreed that either one might have made statements which were not made by the other but he had no recollection of the particular statements made by one which were not made by the other. He could not say by reference to the record of statements of Jaikishun which of the statements was made by Shyamnandan. He stated that Shyamnandan named certain accused but he could not remember which accused he named; and he finished by saying that he did not remember what statements Shyamnandan made.

I have always considered it very undesirable for police officers to record statements in the form ''A supported B'' or ''A corroborated B'' without a clear indication of the substance of the statement of A which the recording officer regards as supporting or corroborating B. In this case there is a clear proof that even the officer who made the record of the statement in this form does not know what it means. It is thus obviously impossible for the Court or the lawyers on the either side to know what such a record means and, I think, it is clear that the senior police officers who have the duty of reading the case diaries or supervising the investigation must be in exactly the same position. In my opinion, it is unfair not merely to the accused but to the witnesses whose statements are recorded, to the lawyers who have to conduct either the prosecution or the defence and to the judicial officers who have to try the cases, if the investigating officers record the results of their examination of witnesses in such a form that no one, not even the officer who made the record, can know what that record means; and I cannot believe that such records are of any assistance to the supervising police officers. I, therefore, consider it highly desirable that all investigating officers should be strongly discouraged from making in the case diaries records of the statements of witnesses in these forms, which are always ambiguous and may frequently be misleading.

We have been taken through the evidence for the prosecution in detail with reference to the cases of individual accused; but the first question which has to be decided is whether the evidence of identification as a whole appears to be bona fide. (After discussing evidence his Lordship held'' that the evidence in this case did not justify the conviction of any of the accused of any offence and proceeded.) u/s 307 (3), Criminal P. C., I am required while dealing with the reference made by the learned Additional Sessions Judge to give due weight to the opinions of the Sessions Judge and the jury. If I have not so far made any considerable mention of these opinions, it is not because I had forgotten this provision of law, but because I have found definite reasons for thinking that in the present case no considerable weight should be attached to either of these opinions and I, therefore, considered it desirable to formulate my own conclusions before giving my reasons for discarding those opinions.

Dealing first with the opinion of the learned Additional Sessions Judge, I find that in his letter of reference he stated that one thing could not be lost sight of, namely, that there was a quarrel over irrigation between the people of Bhagyoga and the people of Achua only 17 days before the occurrence in question and he relied on Ex. 8 and Ex. A as establishing that fact. He was quits wrong in thinking that either of these documents was admissible in evidence to establish that fact: and there is no other evidence on the record on which to base such a finding. It is also clear that the learned Additional Sessions Judge did not fully appreciate the weight of the circumstances on which I have relied as showing that the injuries caused in the occurrence were independent of the theft in which case the offence would not amount to dacoity.It is true that he has at places mentioned such circumstances, though I am sure he failed to give them due weight.

I now turn to the opinion of the jurors. The weight to be given to their opinion must depend to a considerable extent on the nature, satisfactory or otherwise, of the charge to the jury. Before I deal with what I am constrained to regard as grave defects in the charge to the jury, I wish to pay a tribute to the amount of labour and thought devoted by the learned Additional Sessions Judge to his charge to the jury, as clearly evidenced by the heads of charge recorded in this case. The heads of charge cover nearly 14 pages of the printed book. The first two and half pages set out the nature of the occurrence alleged by the prosecution, a summary of the investigation, the charges framed and the nature of the defence. This portion of the charge is open to no serious comment. The learned Additional Sessions Judge then rightly explained that the gentlemen of the jury would act as assessors on the charge u/s 396, Penal Code, and as jurors for the trial of the other charges. He explained the functions of the Judge and the jury, and duly warned the jury that the burden of proof was on the prosecution and that the absence of defence evidence would not prove the guilt of the accused unless the prosecution evidence was satisfactory. He warned them to give the benefit of any reasonable doubt to the accused and to base their decisions only on the evidence in the case and not to draw unwarranted inferences against the accused from allegations that some accused had been absconding. These general principles were certainly in point and were adequately explained. Then follows about two-third of a page devoted to general principles relating to evidence and its use in criminal trials, including the use of statements of witnesses before the police. In this passage there are only one or two slight references to the actual evidence in the case, mentioned by way of example. Then follows an" account of the various sections of the Penal Code under which the accused were charged together with a detailed account of the various sections of that Code which define various ingredients which may go to make up the definition of the offences charged. This passage covers nearly a page and a half of the printed book, even though this record contains a number of very brief descriptions of what must in fact have been quite long passages in the charge, for example, "what is hurt is explained in Section 319, Penal Code. The definition of grievous hurt is to be found in Section 320, Penal Code. (These sections and Sections 321 and 322 read and explained to the jury. Section 149, Penal Code, read and explained to the jury)." In the whole of this page and a half there is no reference to the facts of this case. I defer my comment on this portion of the charge until I have sum-. marised the rest.

The learned Additional Sessions Judge went on to give a brief enumeration of the prosecution witnesses and the nature of their evidence. He then continued stating "So far as dacoity is concerned, this is not disputed," and referred to the circumstances showing that either dacoity or theft and hurt were committed. He then proceeded: "What I would like to point out is that dacoity or theft was the main object of the perpetrators of the crime. Assault was only a secondary object." In this passage the learned Additional Sessions Judge was usurping the functions of the jury and, I do not think he adequately put before the jury the two alternative possibilities and the materials on which they should decide which alternative view of the evidence was correct.

The learned Additional Sessions Judge then summarised the evidence of identification by showing which witness had identified which individual accused. He referred to the dying declaration of Earn Bishun and then described the different parts attributed to each accused by each of the prosecution witnesses. He then dealt with the eye witnesses one by one,and drew the attention of the jury to various factors affecting the credibility of each. He pointed out that the Public Prosecutor had conceded that five named witnesses were examined by the police at a late stage and that great weight could not, therefore, be attributed to their evidence; and he invited the jury to decide the case on the evidence of the remaining witnesses whom he named. He warned them in particular about the evidence of Teleria and drew their attention to the fact that the offenders went off towards the west, whereas the accused''s village lay to the east of the scene of occurrence. He referred to the fact that no incriminating article was found with the accused and no injury on their persons, and the possibility of drawing any inference from these facts. He then mentioned that he had not referred in his charge to several minor contradictions in the evidence and finally asked the jury to decide the case on the salient features and warned them not to be carried away by his own opinion, if expressed.

From my own appreciation of the facts and evidence in the case, as given above, it will be seen that apart from any questions of law which may have arisen incidentally in dealing with individual items of evidence, the one substantial question of law which arose on the facts of the case was the question whether the facts proved would amount in law to dacoity. If the jury were prepared to accept the prosecution version of the occurrence as even approximately correct, it is clear that theft was committed, that hurt was caused, and that more than five persons took part in the occurrence. The one substantial question of fact in this connection was whether in the words of Section 390, Penal Code, the hurt was caused

in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft.... for that end.

This is the question to which the attention Of the jury should have been drawn in a prominent manner. No doubt in the heads of charge to the jury it is mentioned among other things that Section 390, Penal Code, was read and explained to the jury. There is, however, nothing in the charge to suggest that the attention of the jury was drawn to this point any more than to numerous other sections of the Penal Code which were read and explained to them; and there is nothing to show that the real bearing of this question on the facts of the case before the jury was ever brought to their attention. Section 297, Criminal P.C., describes the duty of the Judge in charging the jury as

summing up the evidence for the prosecution and the defence, and. laying down the law by which the jury are to be guided.

I now propose to examine the charge with reference to the directions given by the learned Additional Sessions Judge regarding the substantive law to be applied to the facts found by the jury. This substantive law consists largely, if not entirely, in those ingredients in the definitions of the various offences charged which may possibly be applicable, to the facts which may be found by the jury on the evidence in the particular case before them. . Although it is not the duty of the Judge to find the facts, it is his duty to ascertain and to put clearly before the jury what are the essential questions of fact, the answers to which will enable them to bring in a verdict in accordance with the law as laid down by the Judge. In laying down the law for the guidance of the jury the Judge should direct the jury by telling them what is the legal effect of the various possible answers which they may give to the essential questions of fact. This is what is meant by saying that it is the duty of the Judge to apply the law to the facts of the particular ease. What the learned Additional Sessions Judge has done in this case is to set before the jury in full those sections of the Penai Code which have any bearing on the offences charged, with some explanations though there is little or no indication that the explanations given had special reference to the actual facts of the case before the jury. The Penal Code is highly condensed, but is designed to cover a vast multitude of different forms of criminal activity. It follows that in the great majority of cases the particular facts will give no scope for applying certain portions of the definition of the offences charged. Taking an example from the present case, I find that nowhere in this case is there any suggestion of any act which could possibly amount to extortion as defined in Section 383, Penal Code. Yet extortion enters into the definition of robbery as given in Section 390, and may* therefore, form one of the ingredients of dacoity with which the accused were charged. In view of the method adopted by him the learned Additional Sessions Judge thought it necessary to read and explain to the jury Section 383, Penal Code, though this section could have no possible bearing on the questions they had to decide. He also dealt with the definition of murder as given in Sections 299 and 300, Penal Code, though as jurors they were not required to make any finding about murder, the charge u/s 396, Penal Code, being triable with the aid of assessors.

I do not think I am being unfair to the learned Additional Sessions Judge if I describe the method adopted by him in his charge to the jury as the preparation orally of an abbreviated version of the Penal Code, to which the jury were left to fit the facts of the case with very little guidance. I do not suggest that the learned Additional Sessions Judge is alone in adopting this method; in fact, I believe that it is frequently adopted by judicial officers in this province. Its frequent adoption, however, does not make it any better. Jurymen are not expected to be trained lawyers and even the most brilliant exposition of law in the abstract is of little or no assistance to them in deciding a criminal case. They need to have the law applied for them to the facts of the case in what I may call a concrete form. They cannot be expected to understand and keep in mind a great variety of different legal definitions and sections. Every introduction in a charge to the jury of some provision of law which has no direct application to the facts of the case is therefore very apt to confuse them and distract their attention from the comparatively few directions on points of law by which they must really be guided in any individual case.

If in his charge to the jury the Judge deals with the substantive law before considering the evidence and before directing the jury on the questions of fact to be answered by them, I think, it is very difficult, if not impossible, to avoid two results , first, the law is set out in the abstract apart from the facts of the case, and secondly, much law is introduced which will in the end have no bearing on the decision. Both the results, I consider, are highly undesirable. For this reason, I consider that although it may be necessary to name, and even briefly to describe, the offences charged at an early stage in the charge to the jury, such explanation of legal principles as is necessary to enable the jury to decide whether those offences have been proved will be simpler and much more effective if left until after the jury has been directed on questions of fact.

Before dealing further with the direction on points of law in the charge to the jury, I wish to deal briefly with what I consider another defect in the charge delivered in this case. The learned Additional Sessions Judge summarised the evidence against individual accused before discussing the evidence of individual witnesses. Logically, the jury cannot properly consider the case against individual accused before they have made up their mind about the main features of the occurrence, and this, in turn, they can hardly do effectively before they have decided on the extent to which individual witnesses are reliable. In general therefore the discussion of individual prosecution witnesses should precede that part of the charge in which the jury is asked to consider the case as against individual accused separately. I think that the learned Judge''s inversion of this natural order may have encouraged the wholesale verdict brought in by the jury. Various methods of arrangement have been adopted by eminent Judges in charging the jury, and it is neither my duty nor my wish to dictate to Sessions Judges the particular methods which they should adopt in a charge to a jury. For fear, however, that my criticism of the charge in the present case may be regarded as merely destructive, and that the judicial officers, who have the arduous duty of charging juries in criminal cases, may be left with the feeling that I am attempting to overthrow previously accepted standards and offering them nothing in their place, I think it advisable to offer some suggestions as to the way in which the jury might have been charged in this case so as to avoid the defects which I have pointed out.

After summarising the prosecution ease, and the way it was investigated and brought before the Court, the learned Additional Sessions Judge rightly informed the jury of the offences charged and the nature of the defence and explained which charges were triable by jury. He rightly went on to explain the functions of the jury and gave them some directions as to legal principles to be adopted in weighing the evidence. Possibly some of these principles might with advantage have been left until he came to deal with the particular evidence to which those principles were to be applied. This, however, is a very small point, and is perhaps arguable. From this point onward I suggest that the learned Additional Sessions Judge should have proceeded to discuss the evidence of the individual witnesses, much in the way that he actually did discuss them later. He might then have continued with something on the following lines:

On this evidence you have first to decide whether the prosecution witnesses have given a substantially correct version of the occurrence as a whole. If you have any doubt on that point you must acquit the accused. If, however, you believe these prosecution witnesses it follows that some persons entered the house of Sukhdeo Sinha and removed the boxes with ornaments, clothes, etc. There is no suggestion that they had any claim to do so legally. The removal of those articles would therefore amount to theft. Also, if you believe the prosecution witnesses, hurt was caused to Sukhdeo Sinha, Telarai, Rajju Sinha, Earn Bishun Dusadh and others. Also if you believe the prosecution witnesses certainly more than five persons took part in the occurrence. If you find that hurt was caused for the purpose of committing theft or carrying away the stolen property that is robbery. If you find it established that there was a general intention of five or more persons to cause hurt for such a purpose all those taking part are guilty of dacoity. If, however, it is not certain that the hurt to these various persons was caused for the purpose of theft or for the purpose of carrying away stolen property the oharge of dacoity will not stand. (Here the jurors'' attention should have been drawn to the factors in the defence bearing on this question of intention). Even if you find that the requisite intention to establish the charge of dacoity is not proved, you have to consider whether there was an assembly of five or more persons with the common object of assaulting Eajju Sinha, Sukhdeo Sinha and their men. If so, and if persons were hurt in prosecution of that common object all the members of that assembly are guilty of rioting. Then remains the charge u/s 326/149, Penal Code. Earn Bishun Dusadh received an injury from which he actually died. If you believe the evidence of Dr. G. B. Sahay the injury was dangerous to life. If so, it amounted to grievous hurt. If you accept the evidence that that injury was caused by a spear the person who caused that injury will be guilty u/s 326 if it amounted to grievous hurt, or Section 324 if it did not. If you think it is established that the members of the assembly as a whole intended to cause injuries dangerous to life or knew that such injuries or even injuries causing fractures of bones were likely to be caused by members of that assembly then all the members of that assembly will be guilty u/s 326/149, Penal Code. (Here the attention of the jury would be drawn to the evidence of weapons as possibly showing such an intention.) If you doubt whether there was a general intention to cause such serious injury or knowledge of its likelihood but find that there was a general intention to cause injuries the members of the assembly will be guilty u/s 324/149.

After that the jury should have been warned to consider the case of each accused separately and the evidence summarised as against each individual accused. The paragraph which I have set out in inverted commas as a suggestion is very much condensed, and is not intended in this form to represent a completely adequate direction to the jury on the offences charged. For that purpose it requires some expansion. The passage as it stands however is intended to indicate a reasonable method of approach for the purpose of putting clearly before the jury the fundamental questions which they had to decide. The criticisms I have made on the charge to the jury explain why

I have felt unable to give any considerable weight to the opinion of the jury in this case. I have already given my reasons for discounting the opinion of the learned Additional Sessions Judge and have given my reasons for holding that the evidence in this case does not justify the conviction of any accused. In my opinion, the reference should be accepted and all the accused acquitted of the charges under Sections 147, 148 and 326/149, Penal Code. The Government appeal against the acquittal on the charge u/s 396, Penal Code, should be dismissed.

Sinha, J.

I agree that the reference should be accepted and that the Government appeal dismissed. In my opinion, in spite of the great pains taken by the learned Judge below in charging the jury, his charge could have been more direct, with reference to the facts of the present case, avoiding all unnecessary references to abstruse questions of law, irrespective of their application to the facts of the case, as demonstrated in the elaborate judgment prepared by my learned brother. I entirely associate myself with the observations made by my learned brother, particularly with reference to the mode of recording statements of prosecution witnesses by the investigating officers. Attention of the police authorities should be drawn to those observations. I would also suggest that the comments made by my learned brother upon the charge to the jury in the present case and the constructive suggestions made therein should be brought to the notice of the judicial officers engaged in the trial of sessions cases.