Labedan Sain vs Emperor

Wort, J.—This appeal arises out of a conviction by the learned Assistant Sessions Judge of Saran sitting with a jury in which three persons stood charged of offences punishable under Sections 395 and 397, I.P.C. No serious criticism can be levelled at the charge made by the learned Assistant Sessions Judge to the jury; but the contention made by the learned Counsel on behalf of one of the persons who was convicted namely Labedan Sain is that the learned Judge omitted to distinctly state to the jury that it was necessary for them to come to the finding that the convicted person was using a deadly weapon within the meaning of Section 397, I.P.C., at the time of the offence. It is obvious therefore that the only question which really arises from the argument is whether in the circumstances of the case the accused person has been rightly sentenced to the minimum sentence of seven years u/s 397, I.P.C.

I have already stated that no serious criticism can be levelled against the charge for the reason that quite early in the charge to the jury the learned Judge lays down what facts are necessary in order to convict and sentence a person u/s 397. He states in these words:

that the accused used deadly weapon or caused grievous hurt or attempted to cause death or grievous hurt and that these acts were done during commission of robbery or dacoity.

There are facts which the learned Judge told the jury that it was necessary for them to find in order to convict the accused persons or person u/s 397. I have already stated that three persons were charged together before the jury but the jury acquitted two of them and Labedan was convicted as I have already indicated.

From what I have stated it would appear therefore that there was no serious comment to be made as regards the propriety of this conviction and the propriety of the sentence; but it is argued by the learned Counsel on behalf of the accused that as Section 34, I.P.C., has no application to a conviction u/s 397, it was necessary explicitly to point out to the jury that the individual person whom they desired to convict would have to be found to have been using a deadly weapon at the time of the commission of the offence. Now the first question that arises is whether Section 34, I.P.C., does in fact apply to the provisions of Section 397. The first case upon which reliance was made was a decision of Page, J., in Emperor Vs. Ali Mirza, There two of the persons amongst a gang of thieves were unarmed although the other carried deadly weapons and the question which arose and appears to have been argued prior to the learned Judge delivering his charge to the jury was what charge should be left to the jury on the question of the construction of Section 397 or Section 398 and it was in these circumstances the learned Judge came to the view that it was necessary to find each individual accused using a deadly weapon and that it was not sufficient to fall back upon the provisions of Section 34, I.P.C., in order to convict those whom I have stated were unarmed at the time of the occurrence. In other words the learned Judge came to the conclusion that Section 34 had no application to the provisions of Section 397. There was however a decision of the Allahabad High Court, the case of Queen Empress v. Mahabir Tiwari [1899] 21 All. 263 which was a decision to the contrary effect, but that case was considered in the case of Emperor v. Nageshwar [1906] 28 All. 404 and was dissented from.

In the note portion of the page to which I made reference there was a decision of two of the learned Judges of that Court in which they came to the conclusion that the view which was expressed by the judgment of Page, J., in the ILR Cal., Vol. 51, was the correct view. In my judgment there is no doubt that the decision of Page, J., expresses the correct view of Section 34 with regard to Section 397. In other words it is necessary to find in each individual accused using deadly weapon in order to convict him u/s 397. But that does not dispose of the matter because quite clearly the learned Judge in the charge to the jury, that is to say, the charge which is under consideration at the moment in no way confuses the minds of the jury by any reference to liability for a criminal offence arising by Section 34, I.P.C. Therefore it could not be said that the jury might have come to the conclusion that the accused was guilty although he did not carry a deadly weapon as the other persons who in the state of the case were not identified were in fact carrying deadly weapons. But it has been pointed out that P.W. 1 was the witness upon whose evidence the jury must have convicted the accused of an offence u/s 397, if they ware to convict him at all. Now whatever, view one might take of that witness''s evidence, it is quite clear that from time to time he made statements which did not agree as regards the point whether the accused was carrying or using a deadly weapon. At one stage he said that he was carrying a stick but at another stage he stated he was carrying a lathi in which was attached a spear. This much must be said that there was evidence therefore however unsatisfactory the evidence of P.W. 1 may be upon which the jury could come to the conclusion that the accused was using a deadly weapon. But having regard to the view of the law which I take as to Section 34 and also having regard to the state of the evidence upon which the jury must have relied in my judgment although it cannot be said that there was a misdirection or non-direction amounting to misdirection in this case, yet at the same time it would have been safer for the learned Judge to have pointed out very clearly that it was necessary for the jury to be satisfied that the accused was using a deadly weapon. Therefore it leaves a doubt in my mind as to whether the jury really directed their minds to the question in point and it makes one somewhat uncertain whether in the circumstances of the case the accused was rightly sentenced u/s 397, I.P.C. In that state of affairs it seems to me that the conviction u/s 395 must stand although the conviction u/s 397 must be set aside and the sentence reduced to three years rigorous imprisonment.

Scroope, J.

I agree.