Competency of jury to convict under minor charge after acquitting under major charge and admissibility of evidence under Section 27, Evidence Act.

JUDGMENT

C.C. Ghose, J. - The appellants in this appeal are four persons named Durlav Namasudra, Kolo Namasudra, Kama Namasudra and Abhoy Namasudra. They were charged with having committed offences punishable under Sections 302 and 201. I. P.C. The jury found them not guilty on the charge u/s 302, I. P.C. and the learned Judge agreeing with and accepting this verdict of the jury acquitted them of that offence. The jury however by a majority of 5 to 4 were of opinion that the present appellants were guilty u/s 201, I. P.C. The learned Judge accepted the verdict of the jury as regards this and sentenced each of them to undergo rigorous imprisonment for a period of three years. One of the points taken in this appeal is that the jury having acquitted the appellants of the offence u/s 302, I. P.C. were not competent to find them guilty u/s 201, I. P.C.; in other words, the contention is that the jury having acquitted the appellants under the major charge were not entitled to convict them under the minor charge. Now, as regards this point the matter seems to be concluded by authority. First of all there is the case of AIR 1925 130 (Privy Council) where the facts were as follows: Five persons were charged u/s 302, I. P.C., with murder and two of them were convicted the other three being acquitted u/s 302, I. P.C. There was a body of evidence on the record which led to the conclusion that the three persons who had been acquitted u/s 302, I. P.C. had assisted in removing the body knowing that a murder had been committed. They were found guilty u/s 201, I. P.C. of causing disappearance of the evidence. The judgment of Lord Haldane in that case shows that there was nothing wrong in the conviction u/s 201, I. P.C. in the circumstances that had happened. This case has been followed in the case of Umed Sheikh v. Emperor [ 1926] 96 I.C. 867 a decision of Suhrawardy, J., and Duval, J. I need not go over the grounds covered by the judgment but it is sufficient to observe that having regard to the two decisions to which 1 have just: called attention the argument that has been put forward in support of the contention that a conviction u/s 201, I. P.C. is not maintainable in the circumstances that have happened cannot be sustained.

2. The next contention that has been put forward is that the evidence of the Sub-Inspector who conducted the investigation shows that on the day when the accused are said to have made certain statements to him in consequence of which the dead body was discovered they were not in custody and that that being so the admission of the statements made to the Sub-Inspector leading to the discovery of the dead body is hit by the provisions of Section 27, Evidence Act. Before I deal with this contention, it may be just as well to set out exactly what the Sub-Inspector stated in the witness box. The Sub-Inspector in question is witness 18 in the Sessions Court and his name is Trailokya Nath Gogai. His evidence will be found on p. 87 of the record before us. He states definitely in cross-examination that he arrested the four accused Kama, Durlav Abhoy and Kolo at 4 p. m. on 12th December 1930 on suspicion but that there was nothing in his diary to show this. Then he adds these words. I formally arrested these four accused at 3-50 p. m. on 13th July 1930." Therefore it is clear from his evidence that the arrest was not made before 3-30 p. m. on 13th July 1930. In his evidence however he says this:

I came to Nabagram at 10 a. m. on 12th July 1930. An Ejahar was then lodged by Felai before me on that day at 2 p. m. I recorded what he said and I read it over to him. Felai then put his thumb impression on the ejahar. On recording the ejahar, I started an investigation. At 4 p. m. on 7th December 1930 I examined Kolo, Kama, Abhoy and Durlav. I arrested them then and there on suspicion after their examination. On the forenoon of 18th July 1930 I proceeded to Abdua tank with the accused Durlav, Kolo, Kama and Abhoy and certain other witness