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Appeal No. 386 of 1956, decided on.20th May 1957.
Charge to jury‑judge's duty to point out discrepancies and contradictions in witnesses s evidence‑Jury's f unction is to believe or disbelieve the evidence.
Where the Sessions judge placed before the jury all the contradictions in the evidence of witnesses so that the jury, as sole judges of facts, may consider as to whether they would or would not accept the evidence, it was contended by the counsel for the accused that it was also incumbent on the judge in view of the contradictions in evidence, to tell the jury in clear terms that the witnesses were liars and their evidence untrustworthy and they should be disbelieved and the Judge's failure to do so vitiated the charge.
that the charge had not been vitiated. Once the evidence is properly placed before the jury, it is the function of the jury to believe or disbelieve the evidence. The Judge cannot take upon himself this function of the jury.
Nanilal Chakravorti and others v. The Crown 8 D L R (Short Notes) 3 ; Fazlur Rahman v. Emperor A I R 1947 Cal. 192 ; Leonard Hart‑is (1927) 20 Cr. App. R. 144 and Rex v. A. White (1922) 17 Cr. App. R. 59 (60) ref.
R. C. Talukdar for Appellants.
Salahuddin Ahmad, Deputy Legal Remembrancer for the State.
This is an appeal by 3 accused persons who along with 8 others were placed on trial to answer a charge under section 395 of the P.P.C., before Mr. A. Moudud, Assistant Sessions Judge, Bogra, and 5 jurors. The jury by a unanimous verdict found the appellants and one Khalilur Rahman guilty and by a unanimous verdict found the other 7 accused not guilty. The learned judge accepting the unan imous verdict convicted the appellants and Khalilur Rahman under section 395 and sentenced each of them to rigorous imprisonment for 5 years. He acquitted the other accused persons under section 395. Uptil now the accused Khalilur Rahman has not preferred any appeal.
The prosecution case briefly stated is that the complain ant Tabu Paramanik, since deceased, lived at Damdama within P. S. Adamdighi with his son, P. W. 1 Lal Muhammad, who is married to P. W. 2 Altafannessa. On the night following the 15th Magh 1361 B. S., a Saturday, Lal Muhammad was sleeping with his wife in the north‑facing hut. At about midnight Tabu Paramanik woke up from sleep on hearing cries of his son and came out of his but and he found the door chained from outside. The door was opened from outside by his nephew Toyaj and Tabu went to his son's but and found him with bleeding injuries. On inquiry, Lal Muhammad stated that his but was raided by 3 persons namely Abdul Kasem, his brother Nurul Islam and Moyej Abul Kasem injured him with an iron rod. The appellants were identified by the light of a burning hurricane (lamp) and also by the light of a mashal carried by them P. W. 2. Lal Muhammad's wife, also stated that she had recognised the 3 appellants. The next day, an ejahar was lodged at Adamdighi police‑station which is 5 miles off from the village. Witnesses were examined and all the 3 accused were charge sheeted under section 394 but subsequently on 3rd April 1955, the officer in charge of Adamdighi police‑station. received a confessional statement regarding this incident from the Sub divisional Officer of Rajbari. At this, the officer‑in‑charge re‑opened investigation of this case with the permission of the Sub‑divisional Magistrate of Bogra and he personally investigated the case. He took the confessing accused into custody and examined him, the other accused were arrested and thereafter a prayer was made for test identification parade and some of them were identified by some of the prosecution witnesses. After investigation, charge‑sheet was submitted against the accused under sections 395/397 of the P. P. C After a preliminary inquiry by a competent Magistrate, the accused persons were sent up to the Court of Session to stand trial.
The defence contended that there was no dacoity committed in the house of complainant Tabu Paramanik on that night and no property was stolen or any attempt was made for removing any stolen property. According to the defence, Tabu had long‑standing enmity with Sadhu, father of appellants Abul Kasem and Nurul Islam and one Rajab Ali, a close relation of Tabu, had long‑standing enmity with Sadhu. The appellant Moyej had also ill feeling with Tabu and Rajah Ali, and the 3 accused contended that Tabu and Rajab Ali had concocted a false case against them. The accused Khalilur Rahman was apprehended by the police at Rajbari and he was tortured and assaulted by the police at Rajbari asking him to make a confession by implicating the accused persons whose names were suggested to him. Khalilur Rahman made the confession as tutored by the Police and it is false that he committed any dacoity in the house of the complainant Tabu that night with the other accused many of whom are not known to him. The some and substance of the defence was that the accused persons had been falsely implicated in the case and they were innocent. The jurors unanimously found the appellants and Khalilur Rahman guilty and the learned Judge accepting their verdict convicted anti sentencedP the appellants and Khalilur Rahman, as stated above.
Mr. R. C. Talukdar has appeared on behalf of the appel lants and has pressed only 2 grounds taken in the memorandum of appeal. He has not pressed any, other ground, Ground No. 6 is as follows
"For that having regard to the fact that the learned judge having himself found that both prosecution witness Lal Muhammad and Altafannessa did not tell the investiga ting police‑officer that any suitcase containing hard cash and ornaments had been stolen but before the learned judge holding the Sessions trial deposed that the raiders had taken away a suitcase containing hard cash and ornaments seriously misdirected the jury by simply telling them that it is for them to say what credence they would accord to such contradictory evidence in such circumstances instead of going further and saying in no uncertain terms that the witnesses are unreliable and would be well advised to ignore their evidence."
Ground No. 7 is as follows
"For that the confession not being recorded in the course of an investigation under Chapter XIV, Criminal P. C., but during the pendency of the trial of the case before the Magistrate, it is inadmissible in law and the learned Sessions Judge has seriously misdirected the jury by using this inadmissible confession before the jury."
So far as ground No. 6 is concerned, it has been contended that although the learned judge pointed out the contradictions between the evidence of the informant Tabu as compared to what he stated in the F. I. R. and although he also pointed out that Lal Muhammad and Altafannessa did not tell the investigating officer that the suitcase containing hard cash and ornaments had been stolen, he should have gone further and directed the jury that in view of the contradictions a new case had been made out in the Session Court that the raiders had stolen a suitcase containing ornaments and cash, they should totally discard the evidence of these witnesses as untruthful witnesses. It was contended that it was incumbent on the learned judge to direct the jury in view of these con tradictions to tell them in clear terms that these witnesses were liars and the evidence untrustworthy and they should be disbelieved. Because of this non‑direction, it is urged the charge has been vitiated. The argument advanced tantamount to this that the judge should have taken upon himself the functions of the jury and left nothing to the jury as to whether they would or would not accept the evidence of any witness after the judge had placed before them material discrepancies in their evidence. In support of the argument, the oft‑quoted case of Nandal Chakravorty and others v. The Crown (8 D L R (Short Notes) 3) has been cited. The Head‑note states : "The duty of a judge towards jury when a ‑witness is found unreliable‑Direction to ignore the evidence of the witness." The case is not reported in detail and it is not known what the facts of that particular case are. That decision follows an earlier decision of Khundkar, J. in Fazlur Rahman v. Emperor (A I R 1947 Cal. 192), wherein the learned judge observed that
"Certainly it is to tell the jury in no uncertain terms that the witness is unreliable and that they would be well advised to ignore his evidence. To leave the matter where the judge has left it amounts at the very least to an incom plete direction,"
Khundkar, J., in his turn, followed the decision in the case of Leonard Harris ((1927) 20 Cr. App. R. 144). In Leonard Harris's case, Lord Justice Hewart made the following observations
"It is well‑established in the familiar words which are to be found, for example, in Archbold, that 'The character of a witness for habitual veracity is an essential ingredient in his credibility ; for, a man who is capable of uttering a deliberate falsehood is in most cases capable of doing so under the solemn sanction of an oath. If, therefore, it appears that he has formerly said or written the contrary of that which he has now sworn (unless the reason of his having done so is satisfactorily accounted for), his evidence should not have much weight with a jury . . . . . it was permissible to cross‑examine this girl upon the assertions she had previously made not for the purpose of substituting those unsworn assertions for her sworn testimony, but for the purpose of showing that her sworn testimony, in the light of those unsworn assertions, could not be regarded as being of importance. It is upon that matter that con fusion has sometimes arisen. It has undoubtedly sometimes been thought that where the witness is cross‑examined upon a previous unsworn statement arid admits the fact that statement was made but says the statement was untrue, that unsworn statement may sometimes be treated as if it could be accepted by the jury in preference to the sworn statement in the witness‑box, and in like manner sometimes where the witness has denied having made the previous statement, and evidence has thereupon been given that the previous statement was made, there has been, at least, a suggestion that the jury if they chose, might accept the previous statement in preference to the sworn statement. That, of course, is all wrong as has been pointed out on various occasions by this Court, and not least in the case of Rex v. A. White ((1922) 17 Cr, Appl. R. 59 (60)). No such question as that arises here, because when the learned judge came to sum up he was exceedingly careful to say that the effect of this collusion between the sworn testimony of the girl, on the one hand, and her unsworn assertions on the other hand, was to make her a witness who should be neglected."
In the present case what the learned judge told the jury at page 11 is as follows :‑
"In the present case, Tabu deposed before the committing Magistrate that the raiders had taken away the suitcase containing hard cash, panpata and cloth, but nowhere within the 4 corners of the ejahar you will find that there is any statement alleging that any movable property was looted or attempted to be looted. Tabu further stated before the committing Magistrate that he peeped through the window and saw 5/7 men at the inner yard but there is no such statement made within the ejahar nor there is any statement to show that he heard from his son or daughter‑in‑law that the number of the raiders in that night was more than 3 who had raided the north‑facing hut. In the ejahar it was stated by Tabu in particular that he had ill‑feeling with the accused alleged to have been recognised, that the accused were jealous of their pecuniary circumstances and so they entered into a conspiracy and came to cause death of his son and there is no statement showing that the raiders intended to commit any offence with regard to the movable property by looting it or attempting to loot which is the basis and gravemen of an offence to committing dacoity, but, in his evidence before the committing Magistrate, Tabu asserted that the raiders took away a suitcase containing hard cash, gold ornaments and clothing. In his evidence there Tabu went so far as to assert that 'The facts regarding cash and ornaments were not noted by the police‑officers'. P. W. 13, S. I. Samsul Haque, who investigated the case, admitted in his cross examination that he examined Tabu on 30th January 1955, when he said him nothing about any suitcase or articles taken away by the raiders. Being recalled, the S. I. deposed that the Circle Inspector supervised the case and visited the spot on 2nd February 195.5, in his presence when all the witnesses were tested and at that time he disclosed that a suitcase was taken away by the raiders. Being cross examined further, the S. I. stated that at that time he asked Tabu why he did not disclose it before him on 30th January 1955, regarding the suitcase and he stated that his son being injured he failed to remember the suitcase at that time. You should mark such material discrepancies in the evidence of Tabu regarding the incident, particularly, with regard to the number of raiders and the alleged looting of the suitcase and now it is for you, gentlemen, to say what credence you would accord to his testimony . . . .
Bearing in mind such rule of law you are to consider the evidence of Lai Muhammad and Altafannessa who asserted before you that they saw some other raiders at the yard and that the raiders had taken away a suitcase in that night containing hard cash, ornaments, clothes as well as the evidence of Toyez, Muhammad Ali, Jahir and Hazrat who deposed that they heard from Lai Muhammad and his wife in that very night that the raiders had looted away one suitcase. But here I draw your attention to the evidence of P. W. 13 Samsul Haque who deposed that he examined Lai Muhammad and Altafannessa on 30th January 1955, but none of them told him on that day that any suitcase or article was taken away by the raiders. You should give an anxious consideration to such evidence of the investigating officer before whom Lai Muhammad and Altafannessa did not assert on 30th January 1955, that any suitcase or article was looted away by the raiders. But still they asserted before you and wanted you to believe that the raiders had taken away a suitcase containing hard cash of Rs. 300 and one gold panpata and one saree and it is for you, gentlemen, to say what credence you would accord to such con tradictory evidence of the witnesses . . . . . . . ."
At page 13, he further told the jury as follows
"I am sorry I have to warn you against such view inasmuch as the law is that you are not entitled to inter the intention of the raiders from their activities, but you are to find whether the raiders committed or attempted to commit a robbery, being 5 or more in number, when only it will amount to a dacoity. In the present case, your decision must rest on the evidence on record on your clear finding whether the raiders were 5 or more persons in number and conjointly committed or attempted to commit a robbery, and you must not fail there. Gentlemen, I have laid before you the detailed evidence on record on this score, I have drawn your attenti6n to the material discrepancies in the evidence, with those in the ejahar and in the confessional statement of Khalilur Rahman and now it is for you, gentlemen, to say whether you would be justified to find in the present case that the persons participating in the present incident amounted to 5 or more, acting conjointly and committing or attempting to commit robbery. If you find that this is so, then only would you be justified to find that there was a commission of dacoity in the house of the complainant Tabu as the prosecution wanted you to believe."
It will be seen that the learned Judge has taken great pains to place before the jury the contradictions in the evidence of Tabu with reference to what he stated in the F. 1. R., and also the failure of P. Ws. 1 and 2 to tell the investigating officer about the missing suitcase. The missing of the suitcase was an important matter inasmuch as if the culprits did not take away the suit‑case, then the charge of dacoity would not be maintainable against them. The decision reported in 8 D L R page 3 Notes Portion, is not reported exhaustively and it is not known what the facts of that case are. In Leonard Harris's case, the case depended entirely on the evidence of the prosecutrix, who was shown to be a deliberate liar, and it was, therefore, held that as there was no other evidence to support the prosecution, it was the duty of the judge to direct the jury to discard her evidence.
We are unable to say that the principle laid down in 8 D L R page 3 (Notes Portion) is of universal application. In the present case, the learned judge has at great pains placed before the jury all the contradictions so that they, as sole judges of facts, may consider as to whether they would or would not accept the evidence given in the Session Court that the culprits also took away a suitcase containing ornaments and cash. According to the verdict, the jurors accepted the prosecution version. We are unable to say that there is any misdirection or non‑direction on this point.
So far as ground No. 7 is concerned, it is necessary to set out certain facts. The judicial confession of accused Khalilur Rahman was recorded on 5th March 1955. When the judicial confession was recorded, he was in Pabna Jail and a case against him was pending there. Certain facts were disclosed in the judicial confession which revealed that he was implicated in this case. In this case, the case was started on 24th February 1955 against the other accused. After the judicial confession had been recorded, Khalilur Rahman was produced in this case from jail custody on 14th February 1956. On 12th March 1956, 5 prosecution witnesses were examined in this case. On a reference to the order sheet in this case of the Magistrate's Court it would appear that on 28th October 1955, the Court Inspector prayed for withdrawal of the case on the ground stated in the petition. He was permitted to withdraw the case. The accused were discharged under section 494 (4) of the Code of Criminal Procedure. On 3rd November 1955, a fresh charge‑sheet was received against accused Abdul Kasem, Nurul Islam, Moyez Pramanik and Khalilur Rahman and others under sections 395/397 of the P P. C. Thereafter, as already stated, on 14th February 1956, Khalilur Rahman was produced from jail custody and on 12th March 1956, 5 prosecution witnesses were examined in chief. These are the facts in connection with the con fessional statement of accused Khalilur Rahman. Mr. Talukdar has invited our attention to the case of Lai Khan son of Rahman and others v. Emperor (48 Cr. L J 977 (979)). At page 979, the follow ing passage occurs.
"Section 164. Criminal P. C., enables a Magistrate who is duly empowered under that section to record a confession made to him in the course of an investigation under Chapter XIV or at any time afterwards before the commencement of the enquiry or trial . . . . . . ."
It has been contended that as the present confessional state ment was recorded during the course of a trial, it should not have been accepted in evidence. As stated already, a fresh charge‑sheet was received against the other accused and Khalilur Rahman on 3rd November 1955, before which date Khalilur Rahman had already made the judicial confession. The judicial confession was made before the trial commenced against him and others and we cannot say that the judicial confession has been admitted in evidence illegally. In that judicial confession he has implicated himself and one other accused and the learned judge while considering the judicial confession has given proper directions regarding a judicial confession and the learned Advocate for the appellants was unable to show any misdirection in that portion of the charge to the jury. At page 25, the learned judge took pains to tell the jury as follows :‑
"As against a co‑accused, although a retracted confession may be taken into consideration, the rule is now firmly established that its value against a co‑accused is practically nil and that it cannot form the basis of the conviction without substantial and independent corroboration both as to the crime and the criminal. I charge you to remember well such rule of law while evaluating such judicial con fession against the maker Khalilur Rahman himself and against his other co‑accused."
Having regard to this specific direction, it is likely that the judicial confession was not taken into any consideration by the jury in assessing the guilt of any other accused and no prejudice has been caused to any of them.
We have considered the charge delivered to the jury very carefully and we must say that it is a well‑reasoned charge containing proper directions on all points. There is no misdirection or non‑direction in the same to vitiate it.
The result, therefore, is that this appeal is dismissed.
ASIR, J.‑I agree.
Z. A. S.
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