T.N.R. Tirumalpad, J.C.
1. The two appellants in this case were tried by the Additional Sessions Judge (I), Manipur in Sessions Trial No. 9/3 of 1960 for offences under Sections 395/397 and under Section 342 I.P.C. and convicted. A sentence of 7 years' R. I. was imposed on each of them under Sections 395/397 I.P.C. No separate offence was given under Section 342.
2. The appellant Atum Lengmei is aged 19 years and the appellant Rangthieu Lengmei is. aged 18 years. The case against them was that On 9.7.59 at about 7-30 p. m. they along with 150 Naga Hostiles armed with deadly weapons committed dacoity in the house of Haomaking (P. W. 2) in Makhui Khunou village and took away Rs. 300/- and that they committed another dacoity in the same village at about the same time in the house of Nganing (P. W. 4) and took away Rs. 18/-. The further case against them was that they along with other hostiles wrongfully confined P. Ws. 1 to 4 in the School in the said village after tying up their arms with ropes. P. Ws. 1 & 2 made a report on 11.7.59 about the occurrence to one Hem Bahadur Rai, the officer in charge of the Eastern Frontier Rifles. Twaiwaichong Camp. which was at a distance of 10 miles from the village.
The said Officer sent a wireless message to the Police at Imphal on 12.7.59. P. W. 8 registered a case under the report Ext. A/5 which he prepared and he handed over the inviestigation to P. W. 9 the O/C. in charge of Kangpokpi Police Outpost on 13.7.59 as the occurrence took place within his jurisdiction. He took up investigation and examined some of the witnesses and he issued notices to all the Police Stations for the arrest of the Naga Hostiles and to communicate the fact of arrest to him for holding identification parade.
3. On 21.7.59 P. W. 5 who had by then become the Officer in charge of Imphal Police Station got information that certain Naga Hostiles were roaming in the Khwairamband Bazar in Imphal and he found the two appellants loitering in a suspicious manner and arrested and brought them to the Imphal Police Station. According to P. W. 5 he handed over the custody of the appellants to P. W. 9 for taking necessary action. He did not say on what date he did so after the arrest of the appellants. But P. W. 9 stated that he got information only on 15.8.59 about the arrest of the appellants. What happened between 21.7.59 and 15.8.1959 and why there was so much delay have not been spoken to by any witness.
4. On 17.8.1959, P. W. 9 applied to the Additional District Magistrate, Manipur, for holding, a Test Identification Parade vide — Ext, A/8. Accordingly, the Magistrates P. W. 6 and P. W. 7 held separate Identification Parades on 17.8.1959 and 19.8.1959 respectively. At the first identification parade held by the Magistrate (P. W. 6), there were 14 suspects including the two appellants and the suspects were mixed up with 41 other prisoners. P. Ws. 2 and 4 were the witnesses who were brought for the purpose of identifying the person involved in the two dacoities which took place is Makhui Khunou. P. W. 4 identified the two appellants as the persons whom he saw when they came to his village. P. W. 2 was unable to identify any of the suspects. It may be mentioned here that the two dacoities were said to have been committed in the houses of P. Ws. 2 and 4 respectively. At the second test identification parade P. W. 1 identified the second appellant and P. W. 3 identified the first appellant.
5. The Additional District Magistrate conducted the committal proceedings and he committed the two appellants to take their trial at the Sessions. He named charges against them that on 8th July, 1959 at about 7-30 p. m. they committed dacuity in the houses or Haomakeng and Nganging in the village Makhui KhurlOu and turther that on the same date the appellants wrougtully contined P. Ws. 1 to 4 at the L.P. School is Makliui Khunou.
6. At the Sessions Trial, the learned Additional Sessions Judge (I) framed one charge under Section 395 that the appellants on or about 9.7.59 at About 7-30 p. m., committed dacoity in the houses of P. Ws. 2 and 4 Haomukeng and Nganing. The second charge was that at the time of committing the dacoity each of them used deadly weapons, namely, rifles. He tramed a third charge that the appellants on the same day wrongfully confined P. Ws. 1 to 4. at the L.P. School in Makhui Khunou.
7. With respect to the offences of dacoity and wrongful confinement, the prosecution evidence adduced was that of the 4 witnesses P. Ws. 1 to 4. The first appellant in his statement in the Committing Court Ext. A/12, had stated in answer to the question that he with 6/7 other persons armed with firearms committed dacoity at Makhui Khunou on 9.7.59 at about 7-30 p. m, and looted Rs. 300/- and a tin of rice from the house of P. W. 2 and Rs. 18/- from the house of P. W. 4 stated. in reply that it was a fact that they, visited the village, but that it was false that they committed dacoity and further that P. Ws. 2 and 4 gave them foodstuffs voluntarily and that at that time he held a rifle In answer to the further question that during the commission of the crime he assaulted P. Ws. 2 and 3 and kept them confined in the L.P. School, he replied that it was a tact that they were arrested and confined in the L.P. School, but that he did not beat them. He further admitted that P. Ws. 3 and 4 had identified him in the test identification parade.
8. The second appellant in answer to similar questions said in the Committing Court that they did not commit dacoity and that the foodstuffs were voluntarily given, but he admitted that he was holding a rifle. He further admitted that he confined P. Ws. 2 and 3 in the L.P. School, but that they were not beaten. He also admitted that P. Ws. 1 and 4 identified him at the test identification parade.
9. Their statements under Section 342 Cr.P.C. to the Sessions Court were somewhat different. It was a complete denial of the dacoity or of using any deadly weapon or of wrongful confinement of P. Ws. 1 to 4. The first appellant said that they went from village to village for the purpose of common interest and benefit and that villagers used to give them food for the said purpose and that it was not a case of dacoity. The second appellant said that he belonged to the hostile Nagas, but that he never committed any dacoity. Both of them even dented that they were identified at the test identification parade but they admitted the statements Exts. A/12 and A/13 given by them in the Committing Court.
10. The learned Additional Sessions Judge has given a curious finding in his judgment in respect of the case of dacoity on the evidence adduced be tore him. P. W. 1's evidence was that he found about 30 Naga Hostiles in the village demanding money, fire-arms etc. from the villagers. He did not see the dacoity in the houses of P. Ws. 2 and 4. Nor was he in a position to say at the time when he gave evidence that the appellants were in the party. P. W. 2 stated in his evidence that about 150 persons came to his village armed with guns that night and that six persons dressed in Khaki clothes entered his house and took away Rs. 300/-. He did not see the appellants and he was not able to identity the appellants in the test identification parade. P, W. 3 again did not know about the dacoity in the houses of P. Ws. 2 and 4, but he said that he found only 20 or 30 Naga Hostiles with rifles in their hands in the village.
Though he had also identified one of the appellants in the test identification parade, he admitted that at the time he gave evidence he was not in a position to say if either of the appellants was present at the scene of occurrence. As for P. W. 4 he saw only 5 or 6 Naga Hostiles come to his house with fire-arms in their' hands. He, no doubt, said that the two appellants were among those 5 or 6 who came to his house and took away a sum of Rs. 18/- from his pocket and forcibly carried him to the L, P. School, where he was confined. But later he said that when he arrived at the School he saw about 20 or 30 hostiles. In cross-examination he changed the story and said that he did not know if the two appellants were among the hostiles who came to his house, but said that he saw the two appellants in the School guarding those confined therein. P. W. 4 had identified the appellants at the identification parade.
11. With the above evidence before him I am unable to understand how the learned Additional Sessions Judge could find the appellants guilty under Section 395 read with Section 397 of committing dacoity in the houses of P. Ws. 2 and 4. Actually, his finding in paragraph 8 of the judgment was that Naga Hostiles numbering about 150 committed dacoity in Makhui Khunou. The learned Judge never discussed the evidence of P. Ws. 1 to 4 to show that the appellants were among the hostiles Who committed the dacoity. I have already pointed out that except for P. W. 2 no other witnesses mentioned about the presence of 150 Naga Hostiles. How the learned Judge could from the evidence of P. W. 2 alone which was not supported by the evidence of P. Ws. 1, 3 and 4 hold that there were 150 persons, I am unable to understand. The only witness who implicated the appellants in the dacoity was P. W. 4 who stated in examination-in-chief that the appellants were among the 6 or 7 who came to his house and took away Rs. 18/-, but he resiled from this in cross-examination and said that he did not know if the appellants were among the persons who came to his house. In the face of such evidence the appellants should never have been held guilty under Section 395 read with Section 397 I.P.C. at all.
12. Perhaps, the learned Judge was under the impression that it was enough to say that some Naga Hostiles had come to the village on that night and that some of them had committed dacoity in the houses of P. Ws. 2 and 4 and that the appellants were also present in the party of the Naga Hostiles is order to convict the appellants under Sections 395/397 I.P.C. In their statements before the Committing Court, namely, Exts. A/12 and A/13, the appellants had admitted their presence with to or 7 Naga Hostiles m the village, but they had denied their participation in any dacoity. Section 391, I. P. C. defines that where the number of persons who commit or attempt to commit a robbery and the persons present and aiding such commission or attempt, amount to 5 or more, every person SO committing or attempting or aiding will be said to commit dacoity. Thus mere presence of the appellants among the Naga Hostiles who visited the village that night is not sufficient. It is necessary that the appellants must be shown to have conjointly committed the robbery or aided such commission. Unless therefore it was shown that the appellants were in the body of persons who actually went to the houses of P. Ws. 2 and 4 and extorted money or at least aided in extorting the money, they cannot be said to be guilty of dacoity.
13. The entire mistake in this case on the part of the learned Judge arose because he was under the impression that it was sufficient if it was proved that the Naga Hostiles committed the robery in order to find the appellants guilty of the charge under Section 395. It may be pointed out here that the charge framed under Section 395 itself does not mention that there were 5 or more persons who committed the robbery. In that respect the charge framed was defective. Again, the learned Judge went wrong in framing one charge for the two dacoities committed in the houses of P. Ws. 2 and 4. In this respect the Committing Magistrate who framed the charge when committing the appellants to take their trial in the Sessions also went wrong.
Section 233 Cr.P.C. provides that for every distinct offence of which any person is accused there shall be a separate charge. Here, the appellants are accused of two distinct offences, namely, the dacoity in the house of P. W. 2 and the dacoity in the house of P. W. 4. It cannot be said that both the dacoities are part of the same transaction. It cannot even be said that the same dacoits entered in both the houses though the allegation is that two of the dacoits who took part in both the dacoities were the appellants. Still they are distinct offences and the evidence in respect of each offence must also be necessarily separate. In this case, for the dacoity in the house of P. W. 2, we have only the evidence of P. W. 2, while for the dacoity in the house of P. W. 4 there is only the evidence of P. W. 4.
14. A common charge should never have been framed in respect of both the offences. It is clear that there cannot be a common finding in respect of both the dacoities as the findings for the two dacoities must depend On separate evidence. Thus, there has been a serious defect even in the very framing of the charge, in the first place, by not mentioning that there were 5 or more persons who committed the dacoities and secondly in framing a common charge for the two distinct offences.
15. I may refer to the decision Jai Dayal v. State : AIR1954All201 , in which it was held that where there were three separate instances of dacoity committed by the same body of persons within short intervals of time On three separate sets of persons a composite charge should not be framed. In that particular case, it was held that the accused were prejudiced in the trial by the framing, of a composite charge as the trying Judge was prevented from focussing his attention separately on the evidence in respect of each of the three separate charges to see whether the particular charge had or had not been established. The same remarks apply to the present case also. I have already pointed out that the framing of such a composite charge made the learned Judge feel that it was sufficient if he found that there was dacoity committed in the village by Naga Hostiles. The discussion in the judgment of the lower court also showe] that there was confusion in his mind. The appellants certainly have been prejudiced by the framing of such a composite charge.
16. The question therefore will be whether this case should be remanded for a fresh trial. I have perused the entire evidence and I do not find that even on the evidence adduced the two offences of dacoity have been proved against the appellants and hence there is no point in remanding the case for fresh trial after framing separate charges. I have already shown that in respect of the dacoity in the house of P. W. 2, there was only the evidence of P. W. 2 and P. W. 2 has not mentioned the appellants having taken part in the Said dacoity. If the learned Judge had bestowed attention on the evidence in respect of that separate charge he would not have committed the mistake of finding the appellants guilty of that charge.
With regard to the dacoity in the house of P. W. 4 also, I have pointed out that though P. W. 4 stated that he saw the appellants among the 6 or 7 persons who entered his house and extorted Rs. 18/- from him, he stated later that he saw them only in the L.P. School subsequently. Even though P. W. 4 had identified the two appellants in the test identification parade we find from the written memo of the test identification parade Ext. A/2 that P. W. 4 only stated that he saw the two appellants when they came to his village and not when they took part in any dacoity. Thus, there was practically no evidence against the appellants regarding the two instances Of dacoity. The learned Judge was wrong in finding the appellants guilty of dacoity. In this state of the evidence even On the composite charge there is no point in remanding the case for a fresh trial after framing separate charges against the appellants.
17. I now come to the charge of wrongful confinement under Section 342 I.P.C. As far as this charge is concerned there is the evidence of P. Ws. 1 to 4 that all the four of them were confined in the L.P. School and that their hands we*e tied with the ropes which were recovered by the Police subsequently and produced as material Exhibits in the case. Of course, P. W. 2 was not able to identify the appellants in the test identification parade or in the Court. P. Ws. 1 and 3 though they identified appellants 2 and 1 respectively in the test identification parade were not able to identify the appellants in Court due to lapse of time, But P. W. 4 was able to identify both the appellants in the test identification parade and also in Court. He also gave evidence that: the two appellants stood guard outside the School when P. Ws. 1 to 4 were wrongfully confined inside the School. This evidence of P. W, 4 also got support from the admission of the two appellants in their statements — Ext. A/12 and A/13 made in the Committing Court in which they admitted that they arrested D. Ws. 2 and 3 and confine them to the L. P. School. They only pleaded that they did not beat the two persons.
Of course, the appellants went back on this admission in their statements in the Sessions Court and said that they did not know about the wrongful confinement of P. Ws. 1 to 4. But the evidence of P. W. 4 corroborated by his identification of the appellants in the test identification parade and the admission by the appellants in Exts. A/12 and A/13, brings home the charge of wrongful confinement beyond any shadow of doubt. I see no reasons therefore to interfere with the conviction of the appellants by the learned Additional Sessions Judge. But even on this charge, the finding given by the learned Judge was not that the appellants confined P. Ws. 1 to 4, but that the Naga Hostiles did so. This again showed that the learned Judge was obsessed with the offence committed by the Naga Hostiles and failed to discuss the evidence against the appellants and find them guilty. I have now shown that the appellants were really guilty of wrongful confinement under Section 342 I.P.C.
18. I find however that the learned Additional Sessions Judge has failed to impose any punishment on the appellants on, their conviction under Section 342. The learned Judge has remarked that the offence under Section 342 was found to have been committed in the course of committing die dacoity and therefore the accused should not be punished separately. He is wrong. The wrongful confinement was not committed in the course of the committing of the dacoity. Even according to the evidence of P. Ws, 2 and 4, it was after the dacoity was committed that they were taken to the L.P. School and wrongfully confined. As far as P. Ws. 1 and 3 were concerned, no dacoity was committed in their houses and only wrongful confinement was committed. Thus, the evidence did not establish that the wrongful confinement was committed in the course the dacoity.
19. Even if it was committed in the course of the dacoity there is nothing in the Indian Penal Code or in the Criminal Procedure Code which says that no separate sentences would be necessary for the separate offences found to have been committed by them. Section 71 I.P.C. will not apply to the case as the offence under Section 342 I.P.C. has no connection at all with the offence under Section 395 I.P.C. Section 258(2) Cr.P.C. provides that the Criminal Court shall pass sentence upon the accused according to law, if it finds the accused guilty.
Again, Section 309(2) Cr.P.C. which deals with cases tried in Sessions without a jury provides that if the accused is convicted, the Judge shall pass sentence on him according to law unless, ha proceeds in accordance with the provisions of Section 562 Cr.P.C. Again, Section 367(2) Cr.P.C. dealing with the contents of judgments in criminal cases, provides that the judgment shall specify the offence of which and the section of the I.P.C. or other law under which the accused is convicted and the punishment to which he is sentenced. It is clear, therefore, that sentence must follow a. conviction unless the judge proceeds under Section 562 Cr.P.C. or unless Section 71 I.P.C. applies to the particular case. The decision of the Supreme Court, Jayaram Vithoba vState of Bombay : 1956CriLJ318 holds as follows:
When a person is tried for an offence and convicted, it is the duty of the Court to impose on him such sentence, as is prescribed therefor. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor. When the trail Magistrate convicted the appellant under Section 5, it was plainly his duty to have imposed a sentence.
20. It was wrong on the part of the Sessions Judge therefore not to have sentenced the appellants for the conviction under Section 342, I.P.C. The proper procedure for him would have been to follow the provisions of Section 35 Cr.P.C. and hold that the sentences should run concurrently in case he was of the opinion that they should not run consecutively.
21. As I am setting aside the conviction and the sentence under Section 395/397 I.P.C. the question of sentence to be passed on the appellants has to be decided, as the learned Judge has failed to impose sentence for the conviction under Section 342 I.P.C. In that connection, it is pertinent to mention that the appellants are both under 21 years of age. This fact appears to have been overlooked by the Sessions Judge altogether, before sentencing the appellants under Section 395/397 I.P.C. I have referred to Section 562 Cr.P.C. But the said section in the Cr.P.C. has ceased to apply to the Union Territory of Manipur under Section 19 of the Probation of Offenders Act (20 of 1958) which has now been made applicable to Manipur Territory.
22 Under Section 6 of the said Act when any person under 21 years of age is found guilty of an offence punishable with imprisonment (but not imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 Or Section 4 and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. Section 6 of this Act has not been considered by the Sessions Judge before sentencing the appellants who are under 21 years of age to imprisonment. Nor, it is needless to say, has the Judge recorded his reasons for not proceeding under Sections 3 and 4 of the Act. This is another error committed by the lower Court.
23. The question therefore arises what should be clone in the present case. Section 6(2) provides that for satisfying whether it would not be desirable to deal with the appellants under Section 3 or 4, the Court shall call for a report from the Probation Officer and consider the report and any other information available to it relating to the character or physical or mental condition of the offender. Thus, before sentencing the petitioner for the conviction under Section 342, ft is necessary that a report should be called for from the Probation Officer. But I understand from the Advocate appearing for the State that no probation officer has been appointed in the Union Territory of Manipur under Section 13 of the Probation of Offenders Act. Thus, it is not possible to call for a report from the Probation Officer. It will be better that the Administration of this Territory appoints a Probation Officer under Section 13(1)(a) of the Act immediately or at least designates a person provided for the purpose by a Society recognised in that behalf by the Administration as provided under Section 13(1)(b) of the Act. The sooner this is done the better it will be. Otherwise the purpose of the Probation of Offenders Act will be nullified.
24. The attention of all Magistrates and Judges dealing with criminal cases in this Territory is also drawn to the provisions of the Probation of Offenders Act and partirularly to Section 6 of the Act and they are directed to follow the said provisions when dealing with accused persons brought before them, who are under 21 years of age.
25. Section 13(1)(c) provides that in an exceptional Case, the Court may designate a person who is fit to act as a probation officer. The question arises whether it is necessary to name such a person under Section 13(1)(c) and to call for a report from him under Section 6(2). For that purpose we have to look to the circumstances of this case. Admittedly, the two appellants have joined with the Naga Hostiles and armed themselves with rifles and gone in a body to the village Makhui Khunou at night dressed in Khaki uniforms. The first appellant stated in Court that he along with other Naga Hostiles went from village to village for the purpose of common interest and benefits. What that purpose was he did not make clear. The second appellant! stated that he belonged to Naga Hostiles. I find from the judgment of the lower Court that the appellants argued before the lower Court that the Nagas had formed an association to establish a new Government independently of the Union of India and that they were citizens of a free Naga land and were arranging for their defence with the arms they carried and at they were, collecting free contributions from villagers residing in the HOI areas.
It is clear from these circumstances that the appellants cannot be released on probation of good conduct under Section 4. Nor am I satisfied that the appellants can be released under Section 3 after, admonition. It' will only mean that the appellants will again go back to the Naga Hostiles and indulge in illegal activities. They cannot be allowed to take the law into their own hands and to confine persons wrongfully. This is a case where the appellants deserve punishment of imprisonment for the protection of the Society and for their own reformation. Both, the appellants will therefore be sentenced to the maximum punishment under Section 342 I.P.C. namely, R.I. for one year for their conviction under that section.
26. In the result therefore the conviction and sentence of the appellants under Sections 395/397 I.P.C. are set aside. The conviction of the appellants under Section 342 I.P.C. will stand. Both the appellants are sentenced to R.I. for one year under Section 342 I.P.C.