Brij Narain, J.C.
1. Parakinkar Chakma appellant has been convicted by the learned Sessions Judge, Tripura Under Section 325 read with Section 149. IPC and Under Section 365, IPC and has been sentenced to a period of 2 years' R. I. under each count and both these sentences have been ordered to run concurrently. The appellant was further charged Under Section 395, IPC but he has been acquitted of the offence under that section 22 other accused had stood their trial along with appellant before the learned Sessions Judge in Sessions Trial No. 4 of 1954 but all of them were acquitted by the learned Sessions Judge on 26-7-1954. A number of other persons were also implicated in connection with the offences in question before the police but some of them were discharged by the police and as against other final report was ultimately submitted.
2. The facts of the case as alleged by the prosecution are that Rajani Mohan Bidyaratna P.W. 1 came to India after partition in the first part of the 1948 and he migrated from Pakistan. He first came to Dharmanagar where he founded co-operative society named Swasti Samity, Rajani Mohan Bidyaratna worked as the chairman of the society which had its branch office at Kanchanpur, Knmala Chandra Nath P.W. 13 is the vice-chairman of the society while Digendra Mohan Nath P.W. 10 is the secretary. Aocording to the prosecution the society got one thousand drones of jungly and uncultivated land in Tripura in 1948 and this land is situated in Kailashahar. The society began to cultivate the land in 1949 but Chakmas and Reangs had Zum cultivation occasionally in that area and only hill people lived there.
The further allegation of the prosecution is that in 1949 A.D. the Chakmas began to obstruct the society in their cultivation of the land and also in cutting jungles. They set fire to a hut of the society and in 1950 a buffalo belonging to the society was stolen. In 1951 another buffalo was stolen. There is was also a dacoity and on 3-2-1952 Rajani Mohan Bidyaratna received a report that there was golmal in Kanchanpur at the instance of Chakmas. This witness started for Kanchanpur the same day and he reached the branch office of Kanchanpur at Suknasara on 4-2-1952. On his way at Betsara he received a report that Promode Nath a member of the society had been assaulted by the Chakmas when harvesting mustard crop and the matter was reported to Fatikroy Thana. On 11-2-1952 Rajani Mohan Bidyaratna P; W. 1 started for Kailashahar to discuss the matter of these obstructions with the Divisional Officer. lie went to the Government Tahsil officer at Kanchanpur bazar before leaving for Kailashahar.
Ultimately he started for Kailashahar at 8 a.m. and he was accompanied by Nandalal Nath P.W. 2 and Dayananda Baidya P.W. 3 joined him when he had emerged from the bazar. When these three gentlemen had gone l/4th of a mile from the bazar towards the north they reached Dhepasara where 30 or 35 Chakmas attacked them with takkals, pieces of bamboo and lathis. The present appellant was amongst assailants and according to the prosecution, he seized Rajani Mohan Bidyaratna by throat and another assailant struck Rajani Mohan Bidyaratna with a piece of wood on the bridge of nose with the result that Rajani Mohan Bidyaratna became unconscious,
Nandalal Nath and Dayananda Baidya were also assaulted and ultimately they were taken to the other side of the Deo river and they were tied round with the bark of udal tree and later on they were dragged and pulled and taken to a tong ghar of the Chakma. Thev were ultimately dragged on to the machan and tied to posts. The appellant is alleged to have robbed Rajani Mohan Bidyaratna P.W. 1 of a sum of Rs. 3/2/6 pies and also of his shoes, umbrella, jama and coat. Dayananda Baidya P.W. 3 was similarly robbed of a sum of Rs. 3/9/- and of his umbrella and Nandalal Nath P.W. 2 was robbed of his clothes by some other accused.
3. At about noon Rajani Mohan Bidyaratna and his companions were taken to the tong ghar of a hill man and were kept there for about an hour and at about 2 p.m. they were again dragged to the vacant house of a Reang and were given some food there. The next morning they were taken towards southwest and were taken just before evening to the house of a Reang and were guarded there during the night. On the following morning they were dragged through hilly and difficult tracts and were taken to the house of another Reang where they were given food after evening.
They were also taken to the house of a Manipuri and ultimately they were taken to the house of one, Prahlad Tripura and from there they were taken to another house where many villagers had assembled and a meeting was held. It was enquired from the victims as to for whom had they voted and then they were taken to another house where they were guarded by men with two guns. They were later on kept in different houses and ultimately they were taken to the house of Tejendra where they were interrogated and a dark com-plexioned man told them that they would be released if they did not give out their story to the police.
A written undertaking was taken from Rajani Mohan Bidyaratna and Dayananda Baidya and Rajani Mohan Bidyaratna was given Rs. 3/- and ultimately he and his companions were taken to the house of Taragati Choudhury at about 2 p.m. on 18th Falgoon in Taranagar village. The next morning they met Satyaguli Choudhury in that house and they started towards Mohanpur bazar. They then went to the house of one Kshetra Nath De and finally they boarded a motor bus for Agartala and Jagadish Choudhury P.W. 18 met them at Agartala motor stand at about 11 a.m. on 3-3-1952 and he was astonished to see them as he had heard that Rajani Mohan Bidyaratna was dead.
Rajani Mohan Bidyaratna P.W. 1 did not tell anything to Jagadish Choudhury but he was taken to Jagadish's house and after taking food and bath there he related his story to Jagadish Choudhury and his father Iswar Chandra Choudhury. No report was lodged by Rajani Mohan Bidyaratna even then and towards the evening he and his companion went to the Congress ofHce and met Sri Sachindra Lai Singha P.W. 20 who advised him to inform' the police and get himself examined at the hospital,
Rajani Mohan Bidyaratna and his companion did not lodge any report to the police even then and they returned to the house of P.W. 16 that night. The next morning they went to Victoria Memorial Hospital where they were medically examined; vide the X-ray plates Ex. M-l. Rajani Mohan Bidyaratna was alleged to have got fever during the next two or four days and so he sent a report to the police after a considerably long time.
4. In the meantime Kamala Nath P.W. 13 had sent a report on 12-2-1952 vide Exs. P-l to P-4 that Rajani Mohan Bidyaratna, Nandalal Nath and Dayananda Baidya were missing and Rajani had Rs. 10,000/- with him and so investigation was started,
5. The appellant contended that the hill people had been living for a long time in the area in question and they had their zum cultivation in that locality and some of the hill men had also paid nazaruna to the Government and had taken settlement of their land before Swasti Samity. Swasti Samity led by the chairman Rajani Mohan Bidyaratna P.W. 1, in order to eject the hill people, brought various false cases against them and harassed them and when he did not succeed in getting peaceful possession over the land, this false case was started against the hill men.
Sri Sachindra Lai Singha P.W. 20 President of the Congress Committee is said to have been inimical to the appellant because the Congress has lost both seals as against the Communists in the last general election and so the appellant was falsely implicated in this case after the elections were over,
6. The present appellant is stated to have made confession vide Ex. P-5 and also the forwarding letter Ex. P-6 and the orders of the S. D. M. on the forwarding letter Exs, P-7 and P-8. The appellant has urged that this confession was not voluntary as he was kept chained all the time before this confession was recorded. The defence relied on two letters dated 11-2-1952 and 28th January Exs. D-l and D-2 showing that Rajani Mohan Bidyaratna P.W. 1 and his party men were against the hill men.
7. I have heard the learned Counsel of the parties at length and I find from the evidence of Rajani Mohan Bidyaratna P.W. 1 himself that he and members of his party tried on numerous occasions to falsely implicate hill men in dacoity and theft cases but they never succeeded and in many of these cases, final reports were given and in some cases which went before the Courts the hill men were acquitted. The prosecution has not filed any documentary evidence to prove that the present appellant ever obstructed the Samity from cultivating any land or from cutting away the jungles,
Rajani Mohan Bidyaratna had to admit clearly , that the Samity did not bring any case for such alleged obstruction in 1949 and he further admitted that he did not know who set fire to the hut in 1949 and he was not definite as to who lodged the report in the Thana, Rajani Mohan Bidyaratna had to admit that no evidence was produced in this case before the police. Regarding the alleged theft of a buffalo in 1950 Rajani Mohan Bidyaratna had to admit that he had merely heard about this theft.
Regarding the alleged dacoity in 1951 Rajani Mohan Bidyaratna had to admit that this dacoity was not in the office of the society and the police submitted a final report in that case also. Regarding the other incident of dacoity Rajani Mohan Bidyaratna had to admit that he could not produce any witnesses before the Magistrate and so the case was dismissed.
Atul Chandra Goutam O/C, Fatikroy P.W. 23 had admitted in cross-examination that from 4th to 11th February, 1952 no information was lodged in his thana on behalf of Swasti Samity as regards alleged assault on Promode Nath. Kamala Nath P, W. 13 has stated that one Kumode Ranjan a member of the Swasty Samity was probably abducted but with respect to this matter also a final report was submitted as the man was found at Dharmanagar.
After taking into consideration all these facts it becomes clear that the hill people lived in the locality in question and had their cultivation by taking regular settlement from the Government while others claimed to have taken such settlement and Rajani Mohan Bidyaratna P.W. 1 tried to take possession by any means possibly with the help of the Congress people who were very much dissatisfied with the appellant on account of their losing both seats in the last general election.
8. I have already mentioned above that the theory that Rajani Mohan Bidyaratna P.W. 1 had Rs. 10,000/- with him and he was abducted by the appellant for that reason, has been found to-be false by the learned Sessions Judge and Rajani Mohan Bidyaratna has also refuted this theory. As Rajani, Nandalal and Dayananda have reasons to. be against the present appellant, their statements have naturally not been accepted ' at their face value by the learned Sessions Judge,
I have after going through their evidence come to the conclusion that as they tried to implicate, any number of innocent person on false allegations,. their evidence should have been disbelieved in toto as against every accused. The learned Session? Judge thought that as Rajani Mohan Bidyaratna and his companion remained missing from 12-2-1952 to 3-3-1952 the prosecution case that the present appellant abducted them should be believed mainly because this part of the case found support from the confession Ex. P-5 and from the statements of Raj Kumar Reang P, VV. 4, Kamajoy Reang P.W. 5, Dhanbabu Singha P.W. 6 and Deb Ratan Reang P.W. 7.
I have now to see how far are the statements of these witnesses reliable and to what extent can the retracted confession Ex. P-5 be acted upon in this case.
9. The learned Sessions Judge has not relied on the confession Ex. P-5 on the ground that the confession does not show that at the time when it was recorded no police man was in the room in which Mr. Phanindra Chandra Majumdar P.W. 17 recorded it. It is in evidence that the appellant even though he was sent to jail and was kept chained at the request of the police in accordance with the orders of the learned Magistrate and so it is proper to infer that the appellant did not make any confession voluntarily. The learned Advocate for the appellant has urged that the confession should be taken as a whole and reliance has been placed on 'Hanumant Govind Nargundkar v. State of M. P.' : 1953CriLJ129 wherein it has been laid down at p. 345:
Gadgil witness was not allowed to live in a free atmosphere and was kept under police surveillance during the whole of the period of investigation and the trial, and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution
10. At p. 350 it has been mentioned:
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all.
11. The argument advanced on behalf of the appellant is that if the confession Ex. P-5 is read as a whole it completely demolished the prosecution case and so the prosecution could not succeed on its basis.
12. There is no doubt that in cases where there is no other evidence except the confession the rule laid down above applies with full force but in cases where there is other evidence also the entire confession can be examined in order to find out which part of it is correct. If a confession is found to be false in part, viz., as to the justifying motives for an offence, it does not follow that the rest of it, relating to the commission of the offence, must be rejected. Where the entire statement of a prisoner has been given in evidence any part of it may be contradicted by the prosecution, and if sufficient grounds exist, the Court may accept the incriminatory, and reject the exculpatory, portions vide Tulin Tanti v. Emperor' AIR 1914 Cal 600 (B),
13. In 'Sultan v. Emperor' AIR 1945 Lah 91 (C) it has been laid down that where part of a confessional statement is inculpatory and part exculpatory and there is evidence on the record to show that the exculpatory part is false, the Court can ignore the exculpatory part and convict the accused on the basis of the inculpatory portion if the confession,
14. In 'Rama Karyappa v. Emperor' AIR 1929 Bom 327 (D) it has been held that a confession in Order to be relised upon need not make a clean breast of all the details in connexion with the crime, but if the Court is satisfied that it has been voluntarily made, it may take into consideration such parts of it as it may by itself or in the light of the other evidence in the case consider to be true. In 'Alibux v. Emperor' AIR 1947 Sind 36 (E) it has been clearly laid down that where there is no other evidence except the confession, the Court must accept or reject it as a whole for the purpose of determining an offence and assessing the sentence.
15. In view of the above rulings I think the prosecution in this case could rely on the confession Ex. P-5 provided it was made voluntarily. The statement Ex. P-5 shows that the learned Magistrate who recorded it failed to question to the appellant to the effect that there was no police man in the room in which the statement was recorded. If police men were allowed to remain in the room at the time when the statement was recorded, the confession cannot be deemed to be voluntary. The mere fact that the learned Magistrate tried to strain his memory in the witness box to depose that no police man was actually present there, will not in my opinion, help the prosecution in any way in this case. I agree with the learned Sessions Judge in holding that the confession Ex. P-5 was not voluntarily and as such it could not be acted upon in this case.
16. Rajani Mohan Ridyaratna P.W. 1 knew the appellant from before the alleged incident both by face as well by name but it is very surprising that he did not give the name of the appellant to Satya-guli Choudhury or to Jagadish Choudhury or even to Iswar Chandra Choudhury. This witness did not give the name of the appellant to even Sachindra Lai Singha P.W. 20.
One would expect that Bidyaratna P.W. I would have rushed to the Thana and would have first of all given the name of the appellant together with the part played by him in this offence in the F. I. R. but this witness did not mention the name of the appellant even in the hospital and he failed to produce his blood-stained clothes and he further tried to show that they had been washed earlier. Even the blood-stained clothes of Dayajianda Baidya which were seen by Jagadish Choudhury were not produced in Court nor were they examined by Chemical Examiner or by the Serologist, Govt. of India.
17. The learned Sessions Judge had disbelieved and I think rightly, the statement of Rajani Mohiaii Bidyaratna to the effect that he remained ill for a number of days after his medical examination and Dr. Khagesh Chandra Mandi P.W. 14 has also not stated anything on this point. As such, it is clear that the name of the appellant was introduced later on after matured deliberations and consultations with Sri Sachindra Lai Singha P.W. 20 who appears to have been dissatisfied with the appellant on account of reverses in the election.
18. I now proceed to deal with the evidence of the four witnesses who have been deemed sufficient to corroborate the prosecution case as against the present appellant. Raj Kumar Reang P.W. 4 was examined by the police on 19-2-1952 but he did not name the present appellant and he only named the appellant in the Sessions Court. Karnajoy Reang P.W. 5 was examined at a very late stage on 12-4-1952 in the presence of Rajani Mohan Bidyaratna P.W. 1 and so his naming the appellant would not be of any material consequence,
Dhanbabu Singha P.W. 6 was examined on 25-6-1952 but even then he did not name the appellant and he identified the appellant in the Sessions Court. Deb Ratan Reang P.W. 7 was examined on 9-3-1952 but he also did not name the present appellant. These witnesses were not made to identify the appellant in the test identification parade and so their subsequent identification of the appellant at the time of the trial in the Sessions Court will not be of any material importance
19. It is necessary that the accused persons whom it may be necessary to put up for identification, should be warned at the time of their arrest that it may be necessary to put them up for identification and that they should keep their faces covered and to take them to the police station in that state. In the police station the lock-up in which they are kept should be covered with a purdah so that no one is able to see their faces. When they are taken to Court or to jail their faces should be covered. In jail also no outsider should be allowed to see their faces. All these precautions should not only be taken but should be proved to have been taken vide 'State of Vindhya Pradesh v. Sarua Munni Dhilmar' AIR 1954 VP 42 (F).
In the present case no precautions are proved to have been taken and the witnesses who claimed to corroborate the prosecution case were not made to identify the appellant in the test identification parade. As such I am of opinion that their evidence cannot be deemed to be sufficient to reasonably corroborate the statements of Rajani Mohan, Nandalal and Dayananda whose statements have been found to be incorrect on almost all the important material points.
I am, therefore, of opinion that the learned Sessions Judge was not justified in holding that the evidence of these 4 witnesses was legally sufficient to establish the charges against the present appellant beyond all reasonable doubt. I am, therefore, clearly of opinion that the charges Under Section 325 read with Sections 149 and 365, IPC were not estab- lished against the present appellant beyond all reasonable doubt by any cogent and convincing evidence and so the conviction of the appellant cannot legally be sustained.
20. In 'Ram Saran v. Rex' AIR 1949 All 594 (G), where there was no doubt that the deceased was murdered at the spot where his corpse , was found but the evidence that he was murdered t by the accused persons was not satisfactory and convincing to be acceptable. It was clear that some innocent persons had been roped in. It was not certain, Whether even amongst the accused there were ho innocent persons. The eye-witnesses involved all of them equally; it was held that when it was doubtful whether all of the accused were guilty, every one of them must get benefit of doubt. I think this ruling fully applies to the present case.
21. The appeal is, therefore, allowed and the conviction of the appellant Under Section 325 read with Sections 149 and 365, IPC are set aside and also the sentences which have been imposed on him under these sections. The appellant will be released forthwith unless he required in connection with any other case.