JUDGMENT

Iqbal Ahmad, J. - Six persons named Sumera, Badri Bisal, Shyam Lal, Nannhoo, Debi Dayai and Bissey were tried by the learned Sessions and Subordinate Judge of Cawnpore, for an offence punishable u/s 395, I.P.C. The trial was by jury. The jury unanimously returned a verdict of guilty against Sumera, Badri Bisal and Shyam Lal accused and by a majority of 3 to 2 the jury held that the charge was also brought home to Nannhoo. The learned Judge accepted the verdict of the jury as regards these four persons and convicted them. The present appeal is by the four convicted persons. The jury returned a unanimous verdict of not guilty as regards Debi Dayal and Bissey. The learned' Judge disagreed with the verdict of the jury and has referred their case to this Court u/s 307, Criminal P.C., with the recommendation that the verdict of the jury so far as Debi Dayal and Bissey are concerned be set aside and they be convicted u/s 395, I.P.C. A reference to the charge to the jury discloses serious misdirection's by the Judge and as we have arrived at the conclusion that the verdict of the jury is vitiated owing to such misdirection's we have decided not only to refuse to accept the reference, but to allow the appeal and to set aside the conviction of the four accused who in accordance with the verdict of the jury have been convicted by the learned Judge and to direct a retrial of all the six accused. We have refrained from going into the evidence in the case with a view to satisfying ourselves as to the propriety of the conviction of the four accused persons named above as, by so doing, we would be substituting our decision for the verdict of the jury and this, for obvious reasons, is undesirable.

2. In order to appreciate the misdirection by the Judge it is necessary to set out the facts and the extracts from the charge to the jury in some detail. A dacoity is alleged to have been committed in the house of a man named Beni Madho in village Sukhanevada on the night of 17th May 1932. A report of the occurrence was made in Sheorajpur police station by the Chaukidar of the village on 18th May at 8 a.m. it Chunni Lal, the officer in charge of the station, proceeded at once to the scene of the occurrence and commenced the investigation. A list of the looted property was given to him by Beni Madho. Nannhoo accused was arrested on 22nd May, and on 21th May the investigating officer arrested Sumera, Badri Bisal, Hhyam Lal and Badlu. Badlu Was made an approver in the case. He is alleged to have given certain ornaments to the investigating officer which according to the case for the prosecution belonged to Beni Madho and were taken away by the dacoits. The confession of Badlu was duly recorded by a Magistrate on 26th May. Bissey accused was arrested on the 5th July. Three accused, viz., Debi Dayal, Bissey and Shyara Lal, are residents of village Phando which is at a distance of about four miles from Sukhanevada. The accused Sumera, Badri Bisal and Badlu, approver, reside in village Judaypur which is also at a distance of four miles from Sukhanevada. The accused, Nannhoo Brahman resides in village Birdha which is at a distance of only two miles from Sukhanevada. The evidence against the accused consisted of the statement of the approver, the alleged recovery of certain articles from the house of some of the accused and their identification by witnesses who professed to have recognized them at the time of the dacoity. In his charge to the jury the learned Judge at first set out the evidence of the approver. The statement of the approver is rich in details. According to the approver the dacoity was organized at the instance of Nannhoo Brahman who has got certain relations residing in village Sukhanevada. The approver has given details about the operation by the dacoits at the time of the commission of the dacoity by them. After sotting out the evidence of the approver the learned Judge in his charge observed that the important evidence in the case w