Patna High Court
Sumeshwar Jha And Ors. vs Emperor on 7 November, 1921
Equivalent citations: 65IND. CAS.443, AIR 1923 PATNA 103
JUDGMENT 1. The appellants were committed to the Court of Sessions on charges under Sections 147, 148 and 379, Indian Penal Code. The accused No. 1, Sumeshwar Jha, was further charged under Section 304 and the remaining accused were charged under Section 304 read with Section 149, Indian Penal Code. 2. As to the charge under Section 379, the accused have been convicted by the learned Sessions Judge on acceptance of the unanimous verdict of the Jury. The verdict of the Jury cannot be set aside unless there is a clear misdirection in the charge by the Judge to the Jury. It is pointed out by the learned Counsel on behalf of the accounted that the verdict of the Jury is vitiated on account of the statement of the accused, which was in the nature of an admission of his having removed potatoes from the field in question, having been brought on the record. During the examination of the Sub-Inspector P.W. No. 10, upon questions put to him by the Public Prosecutor he stated that Sumeshwar Jha had stated to him that "be had gone there (the field)' for sharing alua which was given by one Hiraman Dusadh of village Sultanpore on behalf of complainant, he having only batai interest in it; only 6 passeries of alua were dug by Hiraman, of which he took three passeries as his own share leaving the other half with Hiraman Dusadh for sharing with him, and they had exchange of blows in which Ramruch sustained injuries." The Sub-Inspector then stated that "it further appeared from him (Sumeshwar Jha) that he was alone and that he took away 3 passeries of alua on his own head." The learned Sessions Judge held that the latter portion of the statement where Sumeshwar told the Sub-Inspector that he had taken 3 passeries of alua on his own head, was inadmissible in evidence, as it may in certain circumstances amount to a confession. He remarked in the margin of the evidence of the Sub-Inspector that this portion will not be placed before the Jury in summing up. In the charge to the Jury there is no reference made to this statement. If the evidence in the shape of the statement of the accused referred to above was inadmissible, in view of its having been brought to light in the presence of the Jury and formally recorded as part of the evidence, it cannot with any confidence be said that the Jury were not at all influenced by the statement. It is immaterial that the Judge did not refer to it in his charge to the Jury and it does not at all affect the question. The Jury had heard the statement and they knew that the accused Sumeshwar had admitted before the Police the fact of his having removed the three passeries of alua. It is possible, therefore, that their judgment in, the case was affected by the statement in question. The removal of the alua is, we thick, the most important ingredient in the charge of theft which the Jury was trying at the moment; and the statement of the accused Sumeshwar Jha before the Police tending to show that he had admitted the removal of alua, must have weighed with the Jury to a great extent in arriving at the conclusion as to whether the accused had or had not committed the offence in question. The mischief had been already done in bringing the statement to the notice of the Jury and, therefore, it could not be undone by the omission by the Judge to refer to it in the actual charge to the Jury. 3. It will also be observed that the charge to the Jury does not clearly bring out the delay that took place in the lodging of the first information, but it only asked the question as to whether the delay would go against the prosecution case. 4. If the statement, referred to above was inadmissible as held by the learned Judge, then his omission to refer to it in the charge was a misdirection in law and vitiated the trial and the accused, therefore, must be re-tried, If, on the other hand, the statement in question was admissible as is contended for by the learned Assistant Government Advocate, then the trial is not vitiated, But this statement must have been prominently brought cut by the learned Judge in his charge to the Jury. Therefore whether the statement is admissible or not, the result is the same and the verdict of the Jury is vitiated. The question then is whether the accused should be put upon their trial again on the charge under Section 379. 5. In view of the findings we have arrived at On the general circumstances of the present case and in view of the circumstances of the case and also in view of the fact that Sumeshwar has already been punished under Section 325, we do not think that a re-trial at this stage is at all desirable in the interests of justice. 6. The result is that we set aside the convictions and sentences of all the accused under all the sections except that of Sumeshwar Jha under Section 325, Indian Penal Code. The sentence passed upon him under that section has been already reduced to a period of three years' rigorous imprisonment. Adami, J.
7. I agree.