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Bhanu Lal Das and ors. Vs. State of Tripura - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantBhanu Lal Das and ors.
RespondentState of Tripura
Excerpt:
.....namely, that in these circumstances, the conclusion that the suit case containing the stolen articles was in the possession of appellant nagendra cannot be arrived at, without there being a reasonable doubt about it. no other witness who was present at the time of the search was examined, though in the circumstances it was clearly necessary when reliance was placed on the alleged statement under section 27 of the evidence act. had gone to search the house, and it is easy to introduce this confessional part into the story but if reliance is to be placed on it, it was necessary to give reliable and independent evidence in support of it. the explanation received about it goes to show that it happened due to a mistake committed in the course of carrying out instructions given in an..........actual words used by naman, when he gave the alleged information. again we have the word of the police officer only on that point.no other witness who was present at the time of the search was examined, though in the circumstances it was clearly necessary when reliance was placed on the alleged statement under section 27 of the evidence act. that statement cannot therefore be held to be proved, there is also no evidence to prove that the room from where these articles were recovered was in the exclusive possession of naman, and p.w. 3 had no personal knowledge about it.32. the learned assistant sessions judge also took all this to mean that the articles were recovered in a search, and the arguments before me also proceeded on that basis. be it what it may, hut on this evidence, it can.....
Judgment:

J.N. Datta, J.C.

1. Appellants (1) Bhanulal Das, (2) Jogendra Marak, his brother, (3) Nagendra Marak, all of Madhuban village and (4) Naman Marak of Mahishmara village were tried along with another (who was acquitted) before the Assistant Sessions Judge, Tripura, who convicted them for dacoity punishable under Section 395 of the IPC and sentenced each of them to undergo Rule I, for a term of five years.

2. The dacoity which was not disputed and for which there was ample evidence, was committed by unknown persons, at the cloth shop of Pra-bhat Datta (P.W. 1) between 8-30 and 9 P, M. on 24-8-1954 at Shekerkut village which is about 9 miles from the Police station at Agartala and is situated on a motorable road connecting it with Agartala.

The shop in question is located in the Bazar at Shekerkut, and there me other shops in its vicinity and at the time of commission of the dacoity a gas lamp was burning in the shop, There were some others also sitting with P.W. 1 in the shop, when the dacoits numbering about ten came there, and at the point of revolvers took away cash, cloth and other articles from the shop and two rings from the fingers of P.W. 1. All this happened within about 5 minutes, and a hue and cry being raised as soon as the dacoits left, others 4 came on the spot.

3. The village Choukidar Kartick Tanti (P.W. 10) at once left for Agartala and lodged information about it with the Officer-in-charge who (P.W. 15) in turn hastened to the spot in a motor vehicle. The oral report given by P.W. 10 was not recorded, and P.W. 15 recorded the report of P.W. 1 on the spot, which was treated as the F. I. R. under Section 154.

4. Some property was alleged to have been seized in the course of investigation from the possession of some of the accused persons which was identified to belong to P.W. 1 and was removed in the course of the said dacoity by the dacoits. The appellants and several other persons who were arrested on suspicion were got identified, and these five identified persons were placed on trial.

5. It might be mentioned here that all the appellants are young men ranging in age from 17 to 31 years, and were unknown to the prosecution witnesses from before. Madhuban to which three of the appellants belong is in a northernly direction and about 3i miles from Shekerkut, and Agartala is beyond and to the north of Madhuban, at a distance of about six miles.

Mahishmara from which Appellant Naman Marak comes is further to the north of Agartala and about 8 miles from there. These details were ascertained with the help of a map, and counsel on both sides appearing before me, for the proper appreciation of the case.

Shekerkut is a village of some importance, and has a Bazar, where a Hat is held twice a week.

6. The prosecution case against these appellants was thus based on the identification and the possession of goods stolen in the course of the dacoity.

7. The defence on the other hand was one of denial, and it was alleged that the appellants and others were arrested on suspicion, and then shown to the complainant and witnesses, who then later identified them in the identification parades. Maltreatment by the Police of some of them was also-alieged. Out of the two appellants from whose houses stolen goods were recovered Nagendra denied the fact, while Naman claimed the articles to belong to him.

8. I shall first dispose of the legal objections that were raised by the learned Counsel for the appellants, and which objections go to the very root of the case.

9. The first objection urged by the learned Counsel for the appellants was that Ex. P-l which was treated as the F. I, R, under Section 154, was not really the first information report and it could not be admitted for purposes beyond those permitted by the proviso to Section 162 as in fact it was a statement of a witness recorded under Sub-section (1) of the same section.

It was urged that the real first information was-that which was orally given by the village Choukidar, Kartick Tanti (P.W. 10) on the basis of which the officer-in-charge Rathindra Chandra Rakhsit (P.W. 15) rushed to the spot at once.

10. I have also no doubt in my mind that the real first information received within the meaning of Section 154, was the report that the P.W. 10 lodged, and it should have been recorded as required by that section. The evidence given by P.W. 10 clearly was, that he went to the Police station and informed the Officer-in-charge that a dacoity had been committed at the shop of Prabhat Datta (P.W. 1).

The Officer-in-charge (P.W. 15) deposed that that night at about 11, he got information from P.W. 10 that a dacoity had been committed or was-being committed at Shekerkut, and he hastened to the spot, reaching there at about 3 A, M. In the face of the definite assertion by P.W. 10 that he had informed P.W. 15, that a dacoity had been committed at the house of P.W. 1, it is difficult to accept as stated by P.W. 15, that the information was only that a dacoity had been committed or was being committed in the village.

No doubt P. W, 10 admits that his house is at some distance from the house of P.W. 1, and he did not actually go there because of fear, but he heard a noise and also two gun shots. Now it is in the evidence, and also consistent with the other circumstances, that a hue and cry was raised after the dacoits left, and the gun shots were fired by them after they had left the shop, obviously to frighten others from trying to apprehend or obstruct them.

In these circumstances, it is most improbable, that P.W. 10 would not visit the scene of occur-lence, and ascertain the facts, when he intended and it was his duty to give information about the offence, at once to the Police. The offence took place in the Bazar which is dotted with shops, ana gas lights were burning in them.

P.W. 10 could have thus been easily able to see when approaching, that the dacoits had retreated, and it is against human nature that he would not go to the scene of occurrence, when other villagers were also approaching there. It therefore appears to me that the story that P.W. 10 did not go to the shop of P.W. 1 before he left for the Police station was introduced artificially, with an ulterior motive.

But the cat is out of the bag, when P.W. 10 asserts definitely that he informed the Officer-in-1 charge that a dacoity had been committed at the shop of P.W. 1.

11. Be it as it may, there is no getting away from the fact that what was conveyed to the Officer-an-charge was a definite information of the commission ot a cognizable offence. It is not necessary | that such information should contain the names of offenders or the circumstances of the commission of the offence.

Information in Section 154 means information of a crime given with the object of setting the Police in motion and 'relating to' does not mean that details should be given. It is enough if it indicates that an offence has been committed. It is sufficient if the Police are bound to start investigation on its basis.

That the information conveyed by P.W. 10 was such, is more than borne out by the fact, that the Officer-in-charge thought it his bounden duty and left for the spot at once to investigate. What more Proof is required show that the Information was of the kind required under Section 154, I tail to see.

12. Another objection is that the report or statement Ext. P-l was recorded after the commencement of the investigation, and in my judgment, the circumstances were such that it must have been so. It is in evidence that the Officer-in-charge, on receipt of the information left in a motor-car (most probably a Govt. vehicle) for the place of occurrence and he has himself deposed that he hastened to the spot.

Taking into consideration these facts, and the distance of the place of occurrence from the Police station it is only reasonable to conclude that the Officer-in-charge must have been there within an hour or two of having received the information from the Choukidar. The Choukidar took not more than 2 hours to lodge the information at the Police station. That is, the station Officer must have reached the spot by about 1 A.M. at the latest, which means that the report Ext. P-l which was recorded at 3 A.M. must have been recorded, after the commencement of the investigation. In his cross-examination Harakrishna Datta (P.W. 2) also gives the lie to the story that the Officer-in-charge reached the spot at about 3 A.M., by admitting that the Officer-in-charge was on the spot at about 12 the same night.

Harendra Chandra Ghosh (P.W. 9) also admitted that he met the Officer-in-charge, at about 1 A.M. and he seized two empty cartridges which were found at some distance from the shop of the complainant.

13. As already shown, the information conveyed by the Choukidar was a definite information regarding the commission of a cognizable offence within the meaning of Section 154 and when the Officer-in-charge left for the spot on the basis of that information, he clearly did it as provided for in Section 157 The result is that the information given by the Choukidar (P.W. 10) was the first information, and Ext. P-l must be excluded from the operation of Section 154, that is, it cannot be treated as the first information but must be treated as a statement under Section 162. It cannot therefore be used for corroboration (S. 157 of the Evidence Act) and must be confined in its use to purposes indicated in the Proviso to Section 162 Cr.PC

15. The next objection raised by the learned counsel was as regards the test identification parades held for the identification of the appellants and other suspects, who had been arrested and the manner in which those parades were held. Admittedly these persons were not known to the complainant and witnesses from before.

16. Appellant Jogendra Marak was arrested on the night of 25-8-54, in connection with another dacoity, most probably on suspicion while the other appellants were arrested, two on 12-9-1954 and one on 13-9-54. The test identification parade, as regards Jogendra was held on 6-9-54, while that as regards the others was held on 23-9-54 at the jail at Agartala under the supervision of P.W. 6 (then the S. D. M. Sadar) that is, after the lapse of 12 and 10 days respectively from their arrest.

17. The searches in which stolen property was alleged to have been recovered were made on 12-9-54 to 14-9-54, and Kunjamohan Das (P.W. 4) who attested the seizure memo as regards the property seized from the house of accused Subal Guha, who was acquitted by the learned Assistant Sessions Judge, admitted in his cross-examination that 3 or 4 days before that search he had seen accused proof is required to show that the information was Bhanulal, Nagendra and another being beaten by the police at Shekerkut.

18. Tanindra Marak, a brother of accused Jogendra filed an application (Ext. D-2) before the S.D.M. (P.W. 6) on 28-8-54, i.e. only four days after the alleged dacoity had been committed for interview with accused Jogendra, who was confined in the jail, and for getting the Vakalatnama signed.

The S.D.M. endorsed that application to the Superintendent of the jail for return with the signature of the accused on the attached Vakalatnama and the endorsement of the Officer of the jail dated 29-8-54 shows that the Vakalatnama was returned after obtaining the signature of the accused, and no interview was granted, because there was no order of the S.D.M. in that respect. It was further added that in any case no interview was then possible, as the accused was bed ridden due to assault on him before he was admitted to the jail.

19. This was followed by another petition (Ext. D-l) by Janindra, filed before the S.D.M. (P.W. 6) on 30-8-54, complaining against the beating administered to accused Jogendra and asking for a judicial enquiry into the matter, and also for proper arrangements to be made for his medical treatment.

But no action was taken by the S. D. M. and his endorsement on that application dated the 31st goes to show that it was filed without any action, and the answers given by him in cross-examination are also of no help except that they go to show that although the matter was brought to his notice, no suitable action was taken by him.

On being asked neither the learned Government Advocate nor the learned Counsel for the appellants could enlighten me, on the question whether there are any instructions or rules on this subject, but it is evident that the Magistrate was bound to hold an enquiry into the allegation specially in view of the fact that the jail authorities had also brought that fact to his notice, by their returning endorsement on the very first application (Ext. D-2).

It is very necessary that, persons thus apprehended or taken in custody should be protected from this kind of treatment, and the matter shall be brought to the notice of the Government with h view that it may be gone into, and also suitable instructions issued or rules framed, so that such cases may not recur in future.

20. It might be also pointed out that the case of the accused persons, throughout was that they were shown to the complainant and witnesses before the Test Identification Parade was held, and cross-examination of P.Ws; was also directed on that line. .

21. In the face of admission of Kunjamohan Das (P.W. 4) and the circumstances mentioned above the identification and the test parades for identification can hardly be relied upon and the evidence in that respect must be looked upon as 't of an unreliable character.

22. The dacoits were in the shop for the purpose of committing the dacoity, as disclosed in 4he evidence, for about 5 minutes only. They approached the shop which is in the midst of Bazar, when it was fully lighted, and it is most improbable that they would not take precaution to disguise their faces in some such way that identification would be not at all easy.

They were not known to the complainant and witnesses from before, and that would render identification even more difficult, when those persons are disguised.

23. It may also be observed that the precautions necessary to ensure reliability of identification at such test parades, and which will be found mentioned in numerous reported cases, and also a case of this Court, Parakinkar Chakma v. State of Tripura 1955 Cri LJ 1292 : A.I.R. 1955 Tripura 19 (A), were neither followed nor proved to have been followed (see in this connection, State of Vin-dhya Pradesh v. Sama Munni Dhimar 1954 Gri LJ 1819 : A.I.R. 1954 Vindh Pra 42 (B), Koli Bhagu Ranchhod v. State 1955 Cr LJ 31 : A.I.R. 1955 Sau 4 (C), and State v. Ram Autar Chaudhury : AIR1955All138 also).

24. No reliance can therefore be placed on the test identification parades, or the identification later before the Magistrate or the Sessions Court, and the evidence in that respect must be excluded from consideration, while judging the guilt of the appellants.

25. This leaves us with the only remaining evidence, namely, the evidence about the seizure of property, and the questions in connection with that are (1) whether the property was seized from the possession of the accused from which it was alleged to have been seized and (2) whether it has been satisfactorily proved that, that property was stoten from the possession of the complainant during the commission of the dacoity in question.

26. It might be at once observed that no property was seized from the possession of appellants Jogendra and Bhanulal, and the only evidence, against them namely, that of identification having been found to be not at all trustworthy, their appeals must be accepted.

27. The search at the hut alleged to belong to appellant Nagendra was made by Chunilal Bardhan Roy (P.W. 14) an Assistant Sub-Inspector at about 4-30 A.M. on 12-9-54 in the presence of Monoj Kanti Datta (P.W. 7) a clerk in the District Magistrate's Office, and resident of Agartala, and Monoranjan Ghosh (P.W. 13) a businessman of Moharajgram, who according to the evidence, met P.W. 14 that night accidentally on the way at village Amtoli, which according to P.W. 14 is about 1J miles from Madhuban village.

If the evidence is to be believed, these witnesses got stranded on the way, as the motor vehicle in which they were travelling not out of order. P.W. 14 has deposed that he took these witnesses with him, because he apprehended that he will not Set disinterested witnesses in the locality which is thinly populated and is in the midst of jungle. Nothing was also brought out in their cross-examination to show that these witnesses were under the thumb of the Police or were interested against the accused or in the Police.

It cannot also be said from their position in life, that they were not respectable witnesses. Nor is there anything to show that the apprehension of P.W. 14, that he will not get disinterested witnesses near about was unjustified. Looking also to the time, when this raid for search was being made, it would not be unreasonable to think that P.W. 14 believed bona fide that there would be difficulty in getting witnesses from the locality; and any attempt in the village itself would have given the alarm to others.

There is thus nothing to show that P.W. 14 was acting with a dishonest motive in taking these Witnesses with him. Reliance was placed on behalf of the appellants on Panda Inderjit v. Emperor A.I.R. 1947 All 165 (E), but the facts in that case were different. The witnesses for the .search in that case were found deserving of condemnation, and one of them was also a partisan witness. But as already seen, that was not the case here.

28. An examination of the case law on the point would also disclose, that the view favoured is that if the witnesses are respectable or reliable it is immaterial if they belong to a different locality, since the provision for it in Section 103 Cr.PC is only directory and not mandatory. The omission therefore to call witnesses of the locality will be at the most an irregularity and will not render the search illegal.

29. But the real difficulty with which the prosecution is faced, is the contention that there is no evidence to show that the hut in which the suit case containing some of the stolen articles was found belonged to appellant Nagendra, and it cannot therefore be said that he was in possession of the stolen articles. None of the witnesses knew from before to whom the huts in that compound belonged, much less who was the real owner of the hut in which the suit ease was found.

Appellant Nagendra is a young boy aged about 17, and appellant Jogendra is his elder brother. It is not unlikely that there are other members also in the family. In these circumstances, the mere fact that appellant Nagendra was sleeping in that hut which has come out only in the evidence of P.W. 7 will not justify the inference that appellant Nagendra was in possession, much less knowingly in possession, of the stolen goods recovered therefrom. It is not known if some others were also sleeping in that hut.

It was incumbent on the prosecution to show, that appellant Nagendra was in exclusive possession of the hut in circumstances, on which it could be presumed that he knew of the presence of these stolen articles in the hut. But there is no reliable evidence as to that. The prosecution did not even care to adduce evidence as to whether the suit case was locked or not, and if locked, who gave the key for it. It is not even known, if the structure is such that it is not possible for another to introduce any article into it, without the knowledge of the occupant. No evidence was led even to show whether the suit case was found hidden under other articles or it was in a position easily visible to Others.

The prosecution having failed to lead evidence on these points must take the consequences, namely, that in these circumstances, the conclusion that the suit case containing the stolen articles was in the possession of appellant Nagendra cannot be arrived at, without there being a reasonable doubt about it. The benefit of that doubt must go to the appellant, and I find that it has not been proved that the suit case was recovered from the possession of Nagendra appellant.

30. I find that the learned Assistant Sessions Judge allowed the statement of P.W. 14, which was 'I found Nagendra Marak and he made a confes- sional statement to me and showed me the stolen goods kept in his hut' to go down. It does not appear that any such statement of this appellant was recorded by the Police, and the seizure list, also does not show it, rather it shows that the suit case was seized in a search of the house. The search witnesses do not also say so, and their version is that the property was recovered in a search of the hut. Even P.W. 14 in the next breath stated that he searched the hut and found the stolen articles. In his judgment the learned Assistant Sessions Judge also took into account this search and not that the articles were recovered as a result of information given by the appellant, and the arguments before me were also addressed on that basis. This statement was thus beyond the prosecution case which was alleged, and was inadmissible in evidence and should not have been allowed to be introduced. Another objection to it is that it is not for the witness to say whether it is confessional or not. The witness should state the very words of the accused, and it is for the court to decide what part of it would be admissible under Section 27 of the Evidence Act, and whether it is confessional or not.

31. Now remains to be considered the case against Nanian Marak, as far a? thy recovery of stolen property from his possession is concerned. This search was carried out by P.W. 3 another A. S. I. in the early hours of 14-9-54 at the house of Jiban the father of Naman, as will be evident from the seizure list Ext. P-2. It is therefore difficult to believe how it can be said that the stolen property was recovered from the possession of appellant Naman, obviously a member of the family residing with his father. No doubt it is mentioned in column 3 of Ext. P-2, that most of the items were found in the room occupied by Naman and in the last column, it is stated that four of' the items were recovered, as per confessional statement of Naman appellant. P.W. 3 deposed that he recovered the stolen articles on Naman's showing, that is, all the articles were recovered on his showing, which is at variance, with what was stated in the seizure list. In this case also, the witness did not say what were the actual words used by Naman, when he gave the alleged information. Again we have the word of the Police Officer only on that point.

No other witness who was present at the time of the search was examined, though in the circumstances it was clearly necessary when reliance was placed on the alleged statement under Section 27 of the Evidence Act. That statement cannot therefore be held to be proved, There is also no evidence to prove that the room from where these articles were recovered was in the exclusive possession of Naman, and P.W. 3 had no personal knowledge about it.

32. The learned Assistant Sessions Judge also took all this to mean that the articles were recovered in a search, and the arguments before me also proceeded on that basis. Be it what it may, hut on this evidence, it can never be found that the articles were recovered on the showing of Naman. It is evident that the A. S. I. had gone to search the house, and it is easy to introduce this confessional part into the story but if reliance is to be placed on it, it was necessary to give reliable and independent evidence in support of it.

33. The articles seized consisted of a few series and pieces of blouse and ether cloth in all 7 in number, and Naman claimed that they belonged to him. The evidence to show that they were from the shop of P.W. 1 is also not very satisfactory and in any case they are articles of a nature which might be found in any house. It is not shown {hat the appellant could not have possessed such articles, These articles were also not available at the time of arguments because by mistake they were returned to the complainant. The explanation received about it goes to show that it happened due to a mistake committed in the course of carrying out instructions given in an inspection note and I am satisfied that the. mistake was an honest one.

34. But this has brought out another objectionable feature, which is that the practice in these parts is to keep the property, in the custody of the Court Inspector, The property connected with the offence has to be forwarded to the Court by the Police and the Court has to give directions ioi its custody during the pendency of the case (see Sections 170 and 516A, Cr. P. Code). That is the property comes, into the possession of the Court, and in my judgment it is not desirable that it should be left in the possession of the Court Inspector, who is a Police Officer and the prosecutor.

The fact that he is attached to the Court, and in that sense may be treated as an Officer of the Court, should not make any difference, because the fact remains that he is a Police Officer and the Prosecutor of the accused persons. In the state of which I have experience, the property on receipt by tho Court is taken in the custody of the Court, and then kept with the Nazir attached to the Court in the Malkhana, which is common for all the Courts, and I believe that this being the correct practice must be obtaining in other States algo. This shall also be therefore brought to the notice of the Government for suitable action in the matter.

35. There is also no evidence to show that these articles were mixed with other similar articles and got identified by the witnesses, nor is there anything to show that after seizure they were kept under cover and seal and the witnesses had no op-' portunity of seeing them before. I must therefore find in the circumstances of the case, that it has not been established beyond doubt that these articles are out of those which were removed during the dacoity in question. The conviction of Naman appellant also cannot there be maintained.

36. The result is that the appeal is accepted and the convictions and sentences of the appellants-are set aside and they are acquitted of the charge of dacoity. They shall be set at liberty forthwith, unless they are liable to be detained in' connection with some other case or conviction.


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