P L D 1958 Dacca 75 (PLP)

In the course of the investigation, the appellant in jail Appeal No. 266 of 1956 was arrested at about 6 p.m. of the 4th of September 1955, in village Rouhabari. He was taken to the Kazipur police station at about 7 p.m. of the same evening and was sent to Serajganj on the 5th of September 1955. There he was produced before Mr. M. Nawab, a Magistrate of the first class of Serajganj, at 11‑30 a.m. of the 6th of September 1955, for the purpose of recording a confessional statement under section 164 of the Code of Criminal Procedure. The Magistrate, after giving him the necessary caution and about three hours' time for reflection, recorded the said confessional statement of the appellant Dabor after satisfying himself, by putting appropriate questions to the said appellant, that he wished to make the said confession voluntarily. After recording the said con fession, the appellant was forwarded to the Sub‑Divisional Officer on the same day at 3 p.m. Completing investigation, the police submitted charge sheet against 14 persons on the 19th of December 1955. Of these, eleven persons including the nine appellants before us were committed to stand their trial in the Court of Sessions. All the appellants, who are incidentally the co‑villagers of the deceased Jamsherali Sikdar, pleaded not guilty to the said charge. Their defence was that they had neither com mitted the offence charged nor had they any reason for doing so, particularly as they were all on cordial terms with the deceased. They claimed that they had been falsely implicated in this case by P. W. 11, Entajali, against whom one of the appellants, appellant No. 8 in Criminal Appeal No. 256 of 1956, Abbas, had brought a criminal case which was still pending and in which most of the other accused were witnesses for the prosecution. They suggested that Jamsherali Sikdar had many enemies and it may be that one of them had murdered him, and thus the suggestion was that one Nabin Doctor who was an accused in this case upto the commitment stage might have had a grudge with the deceased, as the deceased had his dispensary at Sonamukhi Bazar pulled down and for which the said Nabin Doctor had instituted a criminal case against the deceased and several others. Again, it was suggested that Bahatan Nessa, the junior wife of the deceased who was first married to one Mafez living in a house to the adjacent west of the house of the deceased, might have committed the murder, as the deceased Jamsherali had secured the divorce of Bahatan Nessa from Mafez by pressure. It was further suggested that as the deceased Jamsherali Sikdar had once been convicted in an abduction case and sentenced to 3 years' rigorous imprisonment, there may have been other enemies too. Thus, the appellants challenged riot only the dacoity but also challenged that the murder of the deceased took place either at the place alleged by the prosecution or in the manner alleged by it. In order to establish its case, the prosecution examined some 17 witnesses of whom P. Ws. 2, 3, 4, 5, 6 and 16 were the inmates of the house present on that night. P. W. 1 was the employee of the shop who came to the place after the dacoits had left, on receiving information from P. W. 16, another servant employed in the house. It was he who also lodged the first information report. P. W.13 was the son of the deceased who was called by P. Ws. 1 and 16 from Sonamukhi Bazar, as he was not in the house on that night. P. Ws. 7, 10, 11 and 12 were neighbours who came immediately after wards, saw the depredations and heard of the recognition of the dacoits from the female inmates of the house assembled in the but of P. W. 13, Matiur Rahman, P. W. 14 was also a person from an adjoining village who came to the place on the next morning. It appears that he was present when the police prepared the seizure list, for he is a witness to the seizure‑list. P. W. 8 was the doctor who carried out the post mortem examination on the dead body of the deceased Jamsherali Sikdar. P. W. 9 is the Magistrate who recorded the judicial confession of the appellant Debor. P. W. 15 is the constable who escorted the dead body to the morgue and P. W 17 is the investigating officer who held the inquest over the dead body at the place of the incident and seized the alamats, such as broken wooden bolts, boxes, mashals, jute strings, etc. The learned Sessions Judge of Pabna has elaborately marshalled this evidence in his charge to the jury, drawing their particular attention to each and every one of the infirmities in the said evidence, the contradictions and dis crepancies therein. He has also placed before the jury the defence arguments and suggestions clearly and succinctly with proper guidance and necessary cautions. The relevant law on the subject has also been explained to the gentlemen of the jury. Indeed, we find that the learned Sessions judge has even placed before the jury as many as eight circumstances which could possibly be said to militate against the probabi lity of the recognition of the appellants by the inmates of the house. The evidence against each and every accused individually has also been marshalled and placed before the jury. In fact, the impression that we have formed upon reading the said charge to the jury is that the learned judge was charging the jury for acquittal. The jury, however, returned a unanimous verdict of guilty against each and every one of the 9 appellants before us and the learned judge has, in his order accepting the said unanimous verdict, observed as follows :‑ "The jury have found the first 9 accused guilty against the trend of my charge. Personally, I entertain grave doubts about the alleged recognition of the accused persons by the inmates of the house. But it seems the jury have accepted the alleged recognition as a fact. As I have placed all the facts and circumstances against the alleged recognition before the jury and, as their verdict is unanimous against the accused in spite of those facts is and circumstances; I do not find any sufficient reason make a reference to the Hon'ble High Court against the verdict of guilty. It is a question of belief or disbelief. Hence I accept the unanimous verdict." Relying upon the said observations of the learned Judge, the learned counsel appearing for the appellants in Criminal Appeal No. 256 of 1956 has put forward before us a prelimi nary contention that in view of the observations made by the learned Judge it was incumbent upon him not to accept the said unanimous verdict and to make a reference to this Court under section 307 of the Code of Criminal Procedure. This contention, however, appears to us to be misconceived. It is unfortunate that the learned counsel did not make himself familiar with the leading case on the subject. Since the decision of their Lordships of the Judicial Committee in the case of Ramanugrah Singh v. Emperor (73 I A 174 ), the law on the subject has become well‑settled. The principles enunciated by their Lordships of the Judicial Committee have since also been accepted by our own Federal Court in the case of Chand Barman v. The Crown (PLD 1954 FC 176), where their Lordships quoting from the decision of the Judicial Committee pointed out that a reference under section 307 of the Code of Criminal Procedure is not justified if the evidence is such that it can properly support a verdict either of guilty or not guilty, according to the view taken of it by the trial Court and if the jury take A one view of the evidence and the judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of facts. In this High Court also, two Division Benches nave also in the cases of The Crown v. Islam Master and others (8 DLR 178) and The State v. Razzaque and others (8 DLR 263) had occasion to point our the principles upon which a reference under section 307 of the Code of Criminal Procedure would be justified. Upon the observations of the learned Sessions judge which we have quoted in this judgment earlier, it is clear that the learned judge did not consider the verdict of the jury to be such as no reasonable body of persons could have arrived at it. Indeed, it rather seems that the learned Sessions Judge was of the opinion that on the same evidence he would have come to a different conclusion but that would not, as we have already pointed out, be sufficient to justify a reference under section 307 of the Code of Criminal Procedure. In addition to this ground, the learned counsel for the appellants has also endeavoured to point out to us that the charge suffers from mis-directions on a large number of points. The first misdirection complained of by the learned counsel is that the learned Sessions judge had erred in leaving the question of the voluntariness of the judicial confession of the appellant Debor in Jail Appeal No. 266 of 1956 to the jury. As far as we have been able to understand his argument, it appears to us that according to the learned counsel the question as to whether the confession was voluntary or not was one of law to be decided by the learned judge and not of fact and should not, therefore, have been left to the jury. This contention of the learned counsel also appears to us to be based on a misconception of the true scope of the functions of the judge and the jury as to such confessions. So far as the question of the admissibility of a confession into evidence is concerned, that and only that comes within the ambit of the functions of the judge. It is for him to decide as a question of law whether a confession is admissible in evidence or not. But once he has decided that the contention is admissible, the question both as to its truth and voluntariness becomes a question of fact and must be left to the jury. In order to make a confession admissible, the judge has to decide whether there exists or does not exist any of the circumstances mentioned in sections 24 to 26 of the Evidence Act. If no such avoiding circumstances exist, that is to say, if it is not shown that the confession was made to a person in authority in consequence of some improper inducement, threat or fraud or to a police officer or at a time when the accused was in the custody o, :he police officer, then the admissibility of the confession is established. It may be that, loosely speaking, in deciding these questions the judge may be said to be also considering the voluntariness of the confession ; but this is merely for the purpose of deciding as to the admissibility of the confession itself. After this has been decided, all other questions must be left to the jury. Although, strictly speaking, it may be possible to urge that the questions of the voluntariness of a confession is distinct from that of its truth, yet it seems to us that the questions are so mixed up together that when the Court has to decide whether it should act upon a confession or not, it is impossible to separate one from the other and to include the question of voluntariness altogether from the mind. Indeed, it has been repeatedly held that it would be a grave misdirection if the judge were to tell the jury that, he having decided to admit the confession into evidence being satisfied of its voluntariness, the jury is left only to consider its truth quite apart from the question of its voluntariness. In the case of Kasimuddin and others v. The Emperor (39 C W N 27), S. K Ghose and Khundkar, JJ., pointed out that although the Judge has to decide the question of the voluntariness of the confession in its bearing upon admissibility, still, after he has admitted it, the jury are entitled and must be allowed to consider for themselves the question of voluntariness in its bearing upon the truth of the confession, and any direction by the judge that the jury are to take that question as settled was a serious misdirection inasmuch as it amounted to withdrawing from the jury an issue of fact relating to the truth of the confession. This view was also taken in another decision of the Calcutta High Court in the case of Kishori Kishore Misra v. Emperor (39 C W N 986) by Lort‑Williams and Jack, JJ. In this High Court also the same view has been taken in at least two recent cases. Thus, in the case of the Crown v. Islam Master, Ibrahim and Chakraborti, JJ., held that whether a confession is voluntary or not is a matter to be decided by the jury and it was also for the jury to decide whether the confession is true or not. In the case of Mohar alias Moulvi Khan alias Mohar Ali Khan and others v. The Crown (7 DLR 633), Ibrahim and Chakraborti, JJ., again considered this question and pointed out that the question of both the truth and the voluntariness of the confession should be left to the jury to decide. In this view of the matter, we do not find that the direction given by the learned Sessions judge with regard to this question is in any way erroneous. What he has said is as follows :‑ "Hence, it is for you to decide whether the confession is true. In order to decide this matter you will have to consider whether it was free and voluntary. Although I have taken it in evidence on the supposition that it is free and voluntary, it is open to you to come to a different conclusion, as you are the final judges of facts, as to its truth or otherwise, since truth or otherwise of a confession cannot be satisfactorily ascertained without considering whether it is also free and voluntary." No exception, in our opinion, can be taken to this enunciation of the law. The next misdirection sought to be pointed out by the learned counsel was that the law with regard to section 396 of the P. P. C. had not been properly explained in so far as the learned judge had not pointed out to the jury that in order to bring the offence within the said section :t was necessary for the prosecution to establish that the murder should have been committed in the course of the commission of the dacoity, as also that the person committing the murder must be one of five or more persons who are conjointly committing dacoity. The learned counsel alleges that the learned Sessions judge has failed to explain the latter ingredient of the offence to the jury. It seems that this ground was also urged at the trial on behalf of the accused persons and has been, in our opinion, not only elaborately but correctly dealt with by the learned judge himself in his charge to the jury. With regard to this, what the learned judge stated was as follows :‑ "In this case the learned defence lawyer has sought to explain to you that the dacoits who, according to the prosecution case, entered into the but of Ebarat, cannot be counted with the other persons who are said. to have entered into the but of Jamsherali Sikdar because it was not the conjoint action of the 2 parties. But I do not agree with him as we find that the raiding of the huts took place simultaneously and the huts are on the same homestead and on the same compound, it is quite unlikely that 2 separate parties of robbers came and committed dacoity at the same place and at the same time. If, therefore, the dacoits entered into the separate huts, as stated by the P. Ws. then you can take it that it was a dacoity conjointly committed by members of the same party." We are in entire agreement with these observations of the learned Sessions Judge. Nothing could be clearer upon the evidence in the present case, if believed, than that the dacoity was committed conjointly by all the persons who raided the various huts in the homestead of Jamsherali Sikdar. It can, by no stretch of imagination, be said that the various dacoits who entered the various huts formed different parties of dacoits. The learned counsel next made a serious complaint that although it transpired in evidence that the body of the deceased was covered with coal dust and ashes, not a word had been mentioned by the learned Sessions judge in his charge as to the circumstances in which the coal dust and ashes came to be found on the body. For this purpose, the learned counsel has relied on the evidence of P. W. 8, Dr. Siddiqullah Choudhury, the Medical Officer of Sirajganj, who in his post-mortem report stated under the heading "External appearance" that "the body was covered with ashes (coal dust)." Unfortunately, here again the learned counsel omitted to place before us the inquest report of the police officer which gives the explanation as to how the said coal dust came on the said dead body. The police officer states in his inquest report that he is making preparations to send the dead body of the said Jamsher Sikdar to the hospital at Sirajganj under the custody of police in a boar for post mortem examination after duly besmearing the dead body with coal‑dust and wrapping up the same with plantain leaves, sack‑cloth, mat, etc. This is the explanation for the coal dust and, if the inquest report had been looked into by the learned counsel, we are certain that this argument would not have been put forward by him. We, therefore, see no substance in it either. The learned counsel also complains that the learned Sessions judge has not said a word as to section 288 of the Code of Criminal Procedure although the depositions of at least two of the prosecution witnesses taken in the commit ting Court had been put in under the said section. It is true that there is no direction in the charge as to the use that can be made of an earlier deposition put in under section 288 of the Code of Criminal Procedure. It would, in our opinion, have been proper for the learned Judge to have told the jury that where such evidence has been admitted under section 288 of the Code of Criminal Procedure, it may be used as evidence for all purposes and the jury may, if they so like, prefer that to the evidence given in the Sessions Court. The circumstances, however, in which the occasion for putting a previous deposition under section 288 of the Code of Criminal Procedure arises are when the evidence of a witness in a committing Court is in conflict with or discrepant to the statement given in the Sessions Court. But, in the present case, although the learned counsel did attempt to point out that the evidence of P. W. 3, Bahatan Nessa, was in conflict with her evidence in the committing Court, we find on a perusal of the said statement admitted under section 288 of the Code of Criminal Procedure that there is, in fact, no material contradiction with her evidence in the said Court and her evidence in the Court of Sessions. She has, we are satisfied, substantially given the same evidence in the Court of Sessions, as she did before the committing Magistrate. In these circumstances, so far as the evidence of this witness in the committing Court is concerned, we do not see how the appellants can be said to have been prejudiced by the omission of the learned judge to place the evidence admitted under section 288 of the Code before the jury. Had he done so, he would have been bound also to tell them that there was no substantial contradiction. So far as the evidence of P. W. 10 in the committing Court, which was also put in under section 288 of the Code of Criminal Procedure, is concerned, the only question with regard to it which was put to P. W. 10 in the Court of Sessions was as to whether he had stated in the committing Court that Zaida had recognised Abbas, Rahman and another. To this he replied that he did not remember. It appears, however from his evidence in the committing Court that he did state that Zaida recognised Abbas Mandal, Rahman and another. This again is, in our view, not a contradiction at all. In any event, it appears that even in the committing Court he did not mention that Zaida told him that she recognised three of the decoits. It seems to us that in such circumstances the learned judge may well have considered it unnecessary to give any directions with regard thereto in view of the fact that he was in any event directing the jury not to accept the evidence of the witnesses with regard to recogni tion. It is significant that almost at the close of his charge to the jury the learned judge gives the following directions .‑ "It is not quite improbable that the accused persons were not recognised by any of the inmates at the time of occurrence but that somehow or other they got scent of their complicity in the crime, since a murder cannot be kept a secret for long. It is not also unlikely that after getting the scent the village pedagogues tried to build up a case against the persons about whom they got scent or entertained suspicion and they actually built up the case of recognition of the accused persons by the inmates. If you think like this, i.e.. if you do not believe that the alleged recognition is a genuine one, then you cannot accept the story of such recognition against the accused persons, for the simple reason that we cannot act upon a fabricated story against certain persons and base our decision on it." Nothing, in our opinion, could have more clearly indicated the mind of the learned judge with regard to the story of recognition given by the prosecution witnesses. In the face of these observations, therefore, we cannot help feeling that the learned counsel has no serious cause for complaint by reason of this omission on the part of the learned Sessions Judge. We are satisfied that the appellants have not in any way been prejudiced by it. The learned counsel also maintained that no proper direction had been given with regard to the first information report. In fact, according to him, the learned Sessions judge had treated the first information report also as substantive evidence. We have carefully read the elaborate comments of the learned Sessions Judge with regard to the absence of the names of the accused persons in the first information report. He has devoted two paragraphs to the first information report whilst pointing out the circumstances against the recognition of the accused persons, The directions given by the learned Judge with regard to this omission in the first information report almost verged on the point of telling the gentlemen of the jury that the entire prosecution case, at least so far as the recognition of the accused persons is con cerned, should on this ground be disbelieved. This direction, though strictly not correct, for, a first information report can only be used for the purposes of contradicting the informant himself and not the other prosecution witnesses, is neverthe less entirely in favour of the accused persons and cannot, therefore, be said to have prejudiced them in any way what soever. This ground, therefore, is also not sufficient to justify our interference with the verdict of the jury. The learned counsel also urges that the learned Sessions judge did not tell the jury, that that if the prosecution did not examine a material witness, they were entitled in law to presume that had that witness been called, he would not have supported the prosecution case, Apart from the usual preliminary observations with regard to this, the learned Judge has, of course, not specifically mentioned anywhere else in the charge that this presumption could be drawn ; but he has in more than one place pointed out to the jury that it is not only a significant but a curious fact in this case that even from amongst the neighbour‑witnesses no wholly disinterested witness or independent person had been called by the prosecution. The learned counsel also pointed out to us that, although on the prosecution evidence itself, the senior wife of the deceased Jamsherali Sikdar was present, she was not examined in this case. So far as she is concerned, we have no hesitation in rejecting the contention of the learned counsel, for, more than one witness has stated that she was blind and, at any rate, could not see anything at night. In the circum stances, it could by no means be said that she was a material witness in this case. So far as the other neighbours are concerned, we must again point out that there is no evidence to show as to whether any particular disinterested neighbour came to the house of the deceased on the night of the dacoity. On the other hand, as we have already indicated, the prose cutrix has called, at least, four neighbour‑witnesses and it may well be that the prosecution might have considered it un necessary to multiply this type of witnesses who would only come and say that they saw the depredations and heard about the recognition from the other inmates of the house. How ever, the learned Sessions judge has pointed out to the jury that they are entitled to take into consideration the circum stance that no independent neighbour witness has been called in this case as a circumstance militating against the fact of recognition of the accused persons. This was, in our opinion, more than sufficient, for, although such direction was not strictly justified, it was entirely in favour of the accused persons, and they are not entitled to complain against it, for it could not possibly have prejudiced them. Lastly, the learned counsel urged that the learned Sessions Judge had actually placed inadmissible evidence before the jury and, therefore, the entire verdict of the jury had been vitiated. He points out that in so far as the learned judge has placed before the jury Exhs.7 and 7 (1), the two lists of the looted articles, said to have been compiled by P. W. 13, son of the deceased, and made over to the investigating officer when he came to the place of occurrence, as also sent to the Sub- divisional Officer by post, he had clearly brought in inadmis sible evidence. This was a list which P. W. 13 made over in the course of the investigation to the police officer and, therefore, it should have been excluded on the principle that that was a statement made to a police officer in course of the investigation. The learned counsel appearing for the State does not seriously contend that these two lists were admissible in evidence but he urges that for this trivial error we ought not to set aside the verdict of the jury and return the case for a re‑trial. It is contended that the mere admission of inadmissible evidence is not by itself a sufficient ground for interference, for, it is open to the Court to exclude that inadmissible evidence and then to consider the rest of the evidence in order to see whether the conviction is justified or not. It is further pointed out that the admission of these two lists would have not made any material difference to the verdict of the jury. If they did not believe the other evidence already on the record, these lists could not have helped in any way. We have given the matter our anxious consideration but it appears to us that the rule is well- established that the mere wrong admission of evidence is not sufficient for setting aside the verdict, for, apart from the provisions of the Criminal P. C., section 167 of the Evidence Act itself provides "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision." It is clear from this that we have power to exclude this evidence and to consider the other evidence as a whole to see if the conviction is justified or not. In the present case, we cannot help feeling that the admission of the seizure list did not materially affect the question of the guilt of the accused persons, for, the only purpose for which these lists have been referred to by the learned Sessions judge is to criticise the con duct of P. W. 13, Matiur Rahman. The learned Judge has pointed out to the jury in discussing the evidence of Matiur Rahman that they should take into consideration the fact that although he submitted these lists of stolen properties he did not consider it necessary to include the names of the accused persons in these lines. The learned Judge seemed thereby to be suggesting to the jury that the evidence of Matiur Rahman to the effect that he gathered the names of the accused recognised from the other inmates should be disbelieved, as also the story of recognition given by the inmates themselves, for, had P. W. 13, Matiur Rahman, in fact ascertained the names of the accused persons recognised, then surely he would have mentioned those names, if not in the first information report which he asked P. W. 1, Azim uddin, to lodge, then at least in these lists of articles which he subsequently prepared and made over to the investigating officer. This does not, therefore, appear to us to have been such an important piece of evidence as to have weighed‑ with the jury in considering the guilt of or the complicity in the dacoity and recognition of the accused persons. These lists merely gave the lists of the articles said to have been stolen from the said house of Jamsherali Sikder. They contained no further information. Normally, the importance of such' a list lies in testing whether the looted articles any, recovered from the possession of the arrested persons are in' fact the articles said to have been stolen. In the present case, no such articles were recovered and, hence; the importance of these lists was almost nil in the present case. We do not think, therefore, that the admission of these lists has materially affected the decision of the jury. In the circumstances, we do not think that we would be justified in interfering with the unanimous verdict of the jury merely on this ground. These are all the arguments which have been advanced before us by the learned counsel for the appellants. Since we have held against him on all these questions, the appeal of the eight appellants represented by the learned counsel is dismissed and their convictions and sentences are upheld. So far as the appellant Debor is concerned, we need only mention that in addition to the facts that we have already set out earlier in this judgment, there was the added circum stance against this appellant that he had made a judicial :confession which he subsequently retracted. The learned Sessions judge has, in our opinion, rightly directed the jury 'that this retracted confession should not be made the basis of the conviction of the said appellant unless it is corroborated 1 in some material particular by other evidence and that its value as against the other co‑accused was almost nil. No com plaint can be made either by the appellant Debor in the Jail Appeal or‑the other appellants with regard to this direction also. For the reasons already given by us, the appeal of the appellant Debor alias Debor All Sk. is also dismissed and his conviction and sentence are confirmed. HASSAN, J.‑I agree. Z. A. S./A. H. Appeals dismissed.