Tajali Mian, and Others vs Emperor

Ross, J.—The appellants Tajali Khan and Kokai Rai and Saukhi Mahra have been found guilty by the unanimous verdict of a jury and have been sentenced to 9 years'' rigorous imprisonment each by the learned Sessions Judge of Bhagalpur on a charge of dacoity committed on the l6th January 1927. The dacoity took place in a house belonging to Maru Mahto and his brother Katki. Katki and the four sons of Maru, Kauhai, Ritlal, Ram and Ramlal, were all sleeping in the bathan when they were attacked by the dacoits. In the house were some women and a boy named Gurdeyal, sixteen years of age, a cowherd. Some property and Rs. 4 in cash were taken away by the dacoits who inflicted some injuries on Katki and Kanhai.

The first point taken on behalf of the appellants is that the jury was not properly constituted inasmuch as the jurors were not chosen by lot. There is authority for this argument and apparently none against it. Another objection to the constitution of the jury is that the accused objected to one of the jurors Ganpatram Marwari on the ground that he was the agent of one Debiprasad Dhundhunia between whom and the Lachmipur Raj, in whose employment the accused are, there was an important litigation pending. The learned Sessions Judge did not disbelieve these facts, but he came to the conclusion that there was no reason why on this ground Ganpatram Marwari should be prejudiced against the accused. Now Section 278, Criminal P.C. requires that any objection taken to a juror on the ground of some presumed or actual partiality of the juror if made out to the satisfaction of the Court, shall be allowed. The facts were accepted by the Court, and they evidently gave ground for presumed partiality in the juror. The decision of the learned Judge relates to actual partiality and is really not a decision on the objection taken. It seems clear from the situation of parties on the admitted facts that the accused did presume partiality in this juror and that consequently the objection should have been allowed.

Apart from the constitution of the jury learned Counsel contends that there is misdirection in the charge itself on important points. Generally, his objection is that the charge is more in the nature of a judgment than a charge and that the learned Judge has expressed his opinion on the facts too dogmatically and in too. unqualified a manner.

The defence was that Tajali was one of the persons in charge of the Lachmipur jungles and had taken action against Maru Mahto for cutting wood without authority; that Maru was taken by Saukhi Mahra and Kokai Rai and Dhanraj Singh to the cutchery and was fined Rs. 15 by the zemindar; and that on account of his enmity these persons had been falsely implicated. The learned Judge in his charge states this defence and says that

unless Maru Mahto was put to some particular indignity on this occasion, one would scarcely expect it to have rankled so long in his mind. Maru Mahto himself has, denied that any such incident ever took place. It is significant that he was not interrogated at any length about it.

Now, apart from the fact that this passage in the charge is too strongly expressed, there is an important omission, namely, the fact that Maru Mahto in his statement before the police had himself admitted that he had been reported against by Tajali Khan for cutting wood without permission and had been taken to the cutchery by Dhanraj Singh and Saukhi Mahra and lined Rs. 15.

Another point of importance in the case was the question of delay in giving the first information. The occurrence took place about midnight on the 16th January. The police station is eight miles distant and the first information was laid between 12 and 1 o''clock the following afternoon. Now, prima facie there was delay; but the learned Judge speaks of the promptitude with which the first information was lodged as a fact militating against the idea of any conspiracy. His reasoning on this part of the case is difficult to follow. His view seems to be that if there had been a conspiracy it could scarcely have begun until Maru arrived and he did not return until the latter part of the night; and, as the first information was lodged between 12 noon and 1 p.m. the party must have left within a comparatively short time. There-is a confusion of thought here, because on this reasoning there was no delay only if Maru Mahto''s return had to be awaited; and that was only necessary if a conspiracy was taking place. The charge on this part of the case seems to be unsatisfactory.

Another point which was. taken by the defence was that Nur Ali Chaukidar, who was admittedly an independent person, should have been examined. The manner in which the learned Judge deals with this man''s absence from the witness box is unsatisfactory. Instead, of directing the jury that an adverse inference should be drawn against the prosecution for not calling this witness, as was held in In re Dhunno Kazi [1882] 8 Cal. 121, he entered into a speculative discussion as to whether there was a conspiracy on the part of the complainant or an organized attempt to win over witnesses to the side of the accused. All this was quite irrelevant to the subject under discussion. The plain fact was that Nur Ali Chaukidar had come shortly after the occurrence and according to the prosecution, the dacoits were named in his presence and, when he was not called by the prosecution, that fact should have been pointed out to the jury and they should have been left to draw their own conclusions from it.

The most important question in the case was the question of identification. Now certain statements had been made to the police which threw doubt upon the statements made in Court. The learned Judge discusses these statements and the conduct of the sub-inspector. He seems to think that the question for the jury was whether the statements in Court or the statements to the police were true. But the statements to the police are not evidence in themselves and the true question was whether the inconsistency in the statements did not make the evidence in Court unreliable. The learned Judge then refers to the fact that Tajali Khan had appeared immediately before the sub-inspector and his comment upon it is that he may merely have been taking what seemed to him and what was in fact the most prudent course--a comment which, in my opinion, was not a fair comment to make upon an act which prima facie indicated innocence. The learned Judge thinks that the sub-inspector was unduly impressed by this action and that this led him to cross-examine the witnesses severely; and he comes to the conclusion that the statements which the witnesses made must have been made in answer to leading questions. But there is no ground for this. It was the duty of the sub-inspector to test the identification by witnesses in a serious case like this; and I can see no ground for the suspicion which the learned Judge has thrown upon the sub-inspector''s evidence. The statements made before the police should have been left to the jury to draw their conclusions. Then, with regard to three witnesses whose evidence is unfavourable to the case for the prosecution, namely, Maharaj, Antu and Rohan, the learned Judge says that Maharaj Mahto''s statement is on the face of it a very unconvincing statement. This seems to me to be too strong an expression of opinion. In dealing with these three witnesses, the learned Judge says that if the jury believed, that the other witnesses were speaking the truth, then it would seem that there were powerful influences at work to exculpate the accused persons, and that these three witnesses came under them and had been induced not to support the prosecution case. This was a speculative opinion and was likely to mislead the jury On all these grounds I would hold that the charge is defective and the convictions must be set aside on the ground of misdirection also.

The question then remains whether a re-trial should be ordered in this case. The only point is whether the evidence of identification is sufficiently reliable and strong to make a re-trial necessary. Now, besides the four persons who were said to have been identified, two other persons were named in the first information as suspected. They were Dhana Mahto and Janki Mahto. The learned Judge points out in his charge that the brother of one of these persons had instituted a criminal case against Maru Mahto two months before. There was, therefore, a strong suspicion that these persons had been named merely out of enmity, and in the case of the present appellants there was a ground of enmity with Maru Mahto on the admitted facts, and these considerations compel me to regard the evidence with some caution. The identification depends on two witnesses only, Kanhai and the boy Gurdayal who says that he hid himself and saw the dacoits from a place of concealment. He identified two persons of whom only one was on his trial, namely Tajali. Consequently there is the identification of two witnesses in the case of Tajali and of one witness only in the case of the other two appellants. Before the police, Maru, the father of Kanhai, said that his son had recognized Tajali Khan and Kokai Rai, and that neither he nor anyone else told him that other dacoits had been recognized. Before the police Gurdayal had said that he told only Kanhai the names of the dacoits whom he recognized; but, when the case came for trial, the witnesses said that Gurudayal as well as Kanhai had named the dacoits whom they identified to them.

Then there is the evidence of the three witnesses whom the learned Judge has referred to in his charge. Of these Maharaj Mahto said that he never heard any talk as to the identity of the dacoits Rohan Rai said that at the thana Kanhai said that he had recognized four dacoits and that Kanhai had told him nothing about having recognized any of the accused and that the first time he named them to him was at the police station Antu Mahto said that when he was at the house neither Kanhai nor anyone else told him who the dacoits were.

Whether these witnesses or the members of the family are to be believed, there is at all events this plain discrepancy between their statements; and I am doubtful whether implicit reliance can be placed upon the members of the family, not only in view of Maru''s earlier statement to the police, but in view of the gradual development which has taken place in their evidence as will be seen by comparing their statements before the police with their statements before the committing Magistrate and their statements in Court. Ritlal did not tell the police that either Kanhai or Gurdayal had given the names of the dacoits whom they had recognized. Ram Mahto also did not make any such statement. Now they say that the names were given by both Kanhai and Gurdayal. In the committing Magistrate''s Court they made statements which were intermediate between the two. There has clearly been a good deal of development in the case as the learned Judge himself has pointed out in the charge; and this throws doubt on the reliability of the evidence which is slender in amount and which, in the circumstances existing between the parties, can hardly have any great weight. It is to be noticed that the identification and the arrest of these persons led to no consequences so far as the dacoity itself is concerned. No clue was obtained to the other dacoits nor was any of the stolen property traced. It seems to me impossible to hold that a serious charge of this kind can be proved by such evidence as has been given in this case and I am, therefore, of opinion that a re-trial should not be ordered.

The result is that the convictions and sentences are set aside and the appellants will be set at liberty.

Wort, J.

I agree. In my opinion also the charge to the jury is quite unsatisfactory. It takes the form of a considered argument tending in favour of the prosecution rather than an impartial summing up of evidence to the jury. Whether the explanation of that is to be found in the order sheet under the date 19th May 1927 I cannot say, but there it is stated that on that date the trial was resumed, the Public Prosecutor finished his argument, pleader for the defence addressed the Court and jury in reply, charge was read out to the jurors by the Court and the verdict of the jury recorded. This clearly indicates that that charge had already been indicated before the trial was concluded. But I leave that point, because, as already stated, the first point which was argued by the learned Counsel for the petitioners related to Section 276 on the question of the constitution of the jury and with that I propose to deal.

Now it appears in this case that although the requisite number of jurors were summoned five only appeared on the day of trial. The point taken is that having regard to the fact that five only appeared the learned Sessions Judge could not comply with Section 276 in choosing the jurors by lot. Now, two authorities have

been quoted to us. First the case of Bhola Nath Hazra and Others Vs. Emperor, , in which the very same circumstances occurred. Twelve jurors were summoned in that case, but five only appeared, five being the requisite number, and that five constituted the jury. On appeal the objection having been taken that the jury was not properly constituted a Division Bench upheld the objection and decided that the procedure adopted was not a mere irregularity; but was of such a character as to make the trial invalid. Another authority has also been quoted to us by the prosecution, the case of In re Anipe Palladu [1917] 5 M.L.W. 327. The facts in that case were that there not being a sufficient number of jurors, the Court supplied the deficiency from the persons present in Court, as it was clearly entitled to do, but the objection was taken that the jurors being members of the public who were made to supply the deficiency had not been chosen by lot.

The Court decided that there was no provision in the Criminal Procedure Code which made it necessary to choose by lot those members of the public thus added, as it was in the case of jurors who were summoned. But, of course, quite clearly that case can be distinguished from the one which I first quoted and, in any event, if this Court has to follow one or the other, it must follow the decision of the Calcutta High Court. But although, in my opinion, the irregularity which existed in this case is sufficient to make the trial invalid yet there is another point which has been argued before us which is one of substance. One of the jurors was challenged on behalf of the accused on the ground of presumed prejudice. The Court disallowed the objection. As my learned brother has already stated, the Sessions Judge did not disbelieve the fact from which the prejudice was said to arise, but stated that he saw no reason why on this ground there should be prejudice. In my opinion the learned Judge had no alternative but to allow the objection u/s 278 which reads:

Any objection taken to a juror on any of the following grounds, if made out to the satisfaction of the Court, shall be allowed:

Of these grounds one is

some presumed or actual partiality in the juror.

Having regard to the nature of the objection taken, in my opinion he had no other course open to him than to allow it and, therefore, the jury on that view was not properly constituted, and, therefore, the trial was invalid.

For these reasons, I think that the convictions and sentences passed against the appellants must be set aside.