Lakshmi Narain, J.C.
1. This is jail appeal on behalf of (1) Angom Kala Singh (2) Salam Angouyaima Singh and (3) Yaima Kabul who are convicted and sentenced by the Sessions Judge, Manipur Under Section 395, I. P. C. in his Court's Sessions trial No. 2 of 1952 on 5-9-52 for 3 years' R. I. and a fine of Rs. 300/- or in default one year's further R. I.
2. The prosecution story as described by the complainant P. W. 4 Tomato Singh is that he had a desire to dedicate a silver door to Shri Govindaji's temple in the Palace. On that account he was in search of old rupee coins as they would be less expensive than the silver bars in the market. A few days after he had expressed his this desire to his associates the two accused Kala Singh and Angouyaima Singh with some others went to him and showed 3 old silver coins as specimen and on his query told him that they would be available from 'the Head of the Hill' in any amount. The complainant gave them Rs. 450 in advance as earnest money to gat 20,000 (twenty thousand) rupee coins. The sample produced remained with the complainant. Tomalo Singh went to the house of Kala Singh, accused a day or two after to confirm if the 'Headman of the Hill' would be able to supply him with the required coins. Yaima Kabui accused No. 7 was found there to tell him that he would be able to supply the required coins. At about 10 A. M. on 31-8-31 Angouyaima Singh accused went to the house of Tomalo Singh to inform him that the coins could be supplied that day and asked him to reach Nambol at about dusk. On this the complainant informed Gulap, Mera, Hijam Mani and Akhambi. All of them left Tomalo's house with the money in currency note in Rs. 19550/- in a car for Nambol. It is alleged by the complainant that he had signed on his way to Nambol in the running car on each of the currency notes bundles of the denominations of Rs. 100, 10, 5, 2 and 1. The party thus reached Nambol at about sun-set and found the three accused Angouyaima, Kala and Gourhari Sarma waiting for them. The car was left there. The party of the complainant and the 3 accused mentioned above left the place walking westward. After walking some distance Kala accused told them to wait there as he would go ahead to find if the hill-man had come. For about one hour Kala would not return. The complainant told his companions that he would go back as he was afraid of being in that lonely place at that time with the huge amount, Angouyaima would not let him go saying that if he did, he would forfeit his advance money Rs. 450/-, In the meanwhile Kala returned and asked the party to move on saying that the Naga who would produce the Old coins was somewhere at a little distance from there. After some distance the accused Naga Yaima was met. Tomalo Singh asked him if he had brought the coins; who rejoined it the complainant had brought his money. The reply was in the affirmative. The Hao Yaima (Yaima accused) said that 'There are many 'Meitis (i.e., Hindoo vally people) and I am the only Hao (Hill-man), so I am afraid of my money being extorted and I should see your money first. Let me see your first,' Tomalo asked Kala, who replied there were so many Manipuris-what the one Naga could do and asked him to show him his money. He showed it saying that there it was. According to the complainant he also counted his money which were correctly found to be Rs. 20,000/- by adding the advance of Rs. 450/-. A little before, the complainant had asked his companions H. Mani Singh to remain at a distance. The Naga told the party that he would give his coins after going a little distance. As soon as the complainant got up with his money a gun-shot was heard with shouting of 'Hatlo, Hatlo' (kill, kill). Kala accused snatched the money from the complainant and ran away with the Hao. Fearing the gun, the complainant party did not chase the culprits. The complainant party quietly came back without raising any alarm leaving Gourhari Sarma accused and Akhambi Singh at the spot. The ejahar was lodged by the complainant after about 6 days to the Thana. In the words of the complainant the occurrence took place at 9/10 P. M. on 31-8-51 which was just before new moon.
3. All the three appellants have denied the charge under Section 395, I. P. C., framed against them and claimed to be tried. They have produced no defence.
4. Apart from the complainant the prosecution has produced 3 eye-witnesses in the case. One of them is Hijam Mani Singh P. W. 5 who knows the complainant from his childhood, but his name is not mentioned in the ejahar though given after 6 days deliberation. He appears to be a got-up one. The other is Gulap Singh P. W. 6 a neighbour of the complainant and the third one is Akhambi Singh P. W. 7. The story given by the latter two is almost the same as that of the complainant. Both of them are in the show almost from the beginning in this affair. While P. W. 6 Gulap Singh has stated that 'after crossing Kwakeithel Tomalo appeared to have written something on the (Kwakeithel) currency notes', his other companion has stated that 'after crossing kwakeithel Tomalo took out pen and paper from his pocket and wrote something.' This discrepancy falsifies the story of signing the bundle of currency notes as put by the complainant.
5. The occurrence is said to have taken place at 9/10 P. M. on 31-8-51 at a place about 10 miles from Imphal and one mile off the main Tmphal-Bishenpur Road. The report was made to the police on 6-9-51 about 6 days after, although the police station falls on the way back and is about a mile or so from the residence of the complainant. The reason for delay in making the ejahar (report) after so long a time is explained by the complainant therein is that 'it was caused in trying to know the name of those unknown persons who took part in the dacoity'. In his statement during the trial he has stated that 'I wanted to search' for the accused privately first, so I did not lodge the ejahar immediately'. It can at once be said that this explanation is not at all satisfactory, and that no reliance can be placed on such a report. It makes the case doubtful. Such a delay without any satisfactory explanation creates a good deal of suspicion on its authenticity. It is also noteworthy that in the ejahar Ex. H made after full 6 days deliberation there is no mention of the amount of money taken by the complainant, no mention of going in car, signing the bundle of notes, of counting the amount or of firing of the gun. It is so brief that every material detail is absent. The learned Sessions Judge has also remarked that 'It is true that the delay in filing ejahar was not good and the reason given for delay was not satisfactory.'
6. Why the complainant and his party made choice of dark hour for the transaction in which such a big amount was involved also casts a good deal of suspicion on this affair. The occurrence is alleged to have taken place at about 9/10 P. M. in a field about one mile off the main road. In the words of the complainant himself the night of occurrence 31-8-51 was just before the new moon, which should be a total dark night. It would not even be possible to count a load of currency notes in a field on such a dark night. No explanation is coming forth for it.
7. The story of signing the bundle of notes in the running car is also not believable. There Was no occasion for doing it and specially in the manner as alleged. It is generally difficult to write in a running car.
8. The learned Sessions Judge has not depended on the confessional statements. Kala Singh and Angouyaima Singh after their arrest on 3-10-51 were produced before the Magistrate for recording confessional statement on 6-10-51. Yaima Kabui was arrested on 22-9-51 and was produced for the same purpose on 24-9-51. All these days they have been in the police custody. The three appellants retracted their confession in the committing Magistrate's Court. Kala pleaded torture of the police, while Angouyaima Singh promise of release by the Police and torture. Yaima Kabui stated that he made the confession at the instance and presence of the police. It is also noteworthy that the story in these confessional statements differs materially from the one given by the complainant and his witnesses. The name of the Mahajan is not disclosed there. It appears from these statements that the Mahajan had some gold for exchange. The story therein might be a different occurrence. Any way the story given in the confessional statements of the appellants and one given by the complainant and his witnesses differ very materially. The learned Sessions Judge has stated these confessions as 'so called'. While connecting the appellants he has excluded consideration of these confessions.
9. The evidence of the approver in this case is not satisfactory and dependable. In his own words he was threatened by Kala Singh on his refusal to join, that unless he joined the work he would be killed first. This is how he came in the show. According to this witness P. W. 1 the occurrence took place after full moon (which is a moon-lit night), while the complainant Tomalo Singh P. W. 4 has clearly stated that the night of occurrence i.e. 31-8-51 was just before the new moon (i.e. a complete dark night). This witness (the so-called approver) was arrested on 7-9-51 while his confessional statement as an accused was recorded on 10-9-51. He was given pardon by the District Magistrate on 17-4-52 about 7 months after. He was never produced before any Magistrate for recording his statement after tender of the pardon. He was only examined after that in the court of the committing Magistrate on 22-9-52. The trial court during the course of its judgment in this case against the other co-accused who have been acquitted, has not given any credence to the evidence of this witness. While discussing the case of Babu Singh co-accused (who has been acquitted by him) the learned Sessions Judge has remarked that 'His '(approver's) evidence is far from credence.'
10. It is also to fee mentioned here that this approver was convicted by the Addl. District Magistrate in this very case on 21-1-52 for 7 years' R. I. On appeal the conviction was set aside by this Court on 27-2-52 due to defects and irregularities in the proceedings. After the remand by this Court, pardon was tendered to this accused who is now approver P. W. 1 on 17-4-52. The above circumstance alone is sufficient to discredit the evidence of this witness. It was not a case in which pardon should have been tendered to the accused at that stage. No reliance can be placed on the statement of such an approver.
11. It has already been discussed that signing of the bundles of currency notes in a running car was not ordinarily possible and at the same time there was no occasion for it.
12. On search of Kala Singh's house in his absence by P. W. 8 Shri Shayama Singh, S. I. currency notes in Rs. 692/- were found from, his cowshed. From his mother also Rs. 40/- were seized. The seizure list is Ex. P. J. It is alleged that out of these currency notes one of the denominations of Rs, 10/- and one of Rs. 5/- bore signature of Tomalo Singh. I have already disbelieved the story of signing the bundles of currency notes in the running car. The accused has stated that the money belonged to him. Nothing was recovered from the house of Yaima Kabui on search. Shri Jadumani Singh S. I. seized Rs. 640/- from Yaima Kabui in the police station vide Ex. P/Y in which it is noted that they were brought by the wife of the accused. This was on 24-9-51. Rs. 650/- in currency notes were produced by Angouyaima Singh on 3-10-51 vide Ex. P/Z. All the three appellants claim the money as belonging to them. The prosecution has not proved in any manner that this very money belonged to Tomalo Singh and was the stolen property.
13. It is clear that the prosecution has not disclosed true fact about the occurrence. The complainant has undoubtedly not come in a straightforward manner and with clean hands. The learned Sessions Judge has also remarked in his judgment that 'I think that the prosecution has not disclosed all the facts for reasons known to them.'
14. So, a delay of full 6 days in making the report of the occurrence which suffers from extreme brevity, the choice of dark hours for the transaction, with such a big amount of money viz : Rs. 20,000/-, signing of the currency notes in a running car, the close association of the eye-witnesses from the very beginning of the affair, ,the absence of the name of one important eye-witness, H. Mani Singh P. W. 5 of the occurrence coupled with other observations as made above, cast a flood of doubt on the whole affair, the benefit of which must go to the accused. This appeal, therefore, is allowed and the conviction and sentence passed against these appellants is set aside. The money seized in this connection is to be returned to those from whose possession it was recovered.