Lakshmi Narain, J.C.
1. The above four appeals have arisen from the decision in sessions trial case No. 2 of 1953 by the Sessions Judge, Manipur, on 18-12-53 which resulted in conviction and sentence of the 4 appellants to 3 years' R. I. and a fine of Bs. 100/- or in default one year's R. I. each, under Section 395, I.P.C.
2. It is alleged by the prosecution that on the night between 24/25-1-53, a dacoity was committed in the house of M. Tolchou Singh at Laimanai Basti by a gang of dacoits numbering 8 or 10. The above 4 appellants are alleged to belong to that gang,
The occurrence took place at about 2 A.M. Tolchou Singh P. W. 2 was sleeping in his house along with his wife Kamini Devi and a son Nimai Singh aged 15 years. Ningthemjao Singh was also there as a guest for the night. According to Tolchou Singh P. W. 2 the front door of his house was being forcibly broken open when the sound awakened him. Immediately he found some 4 persons rushing towards him. He was at that time going to conceal himself underneath his bedstead having smelled the bad game. One blow with a sword was flung at him which struck against the mosquito-curtain hanging on the bedstead. The dacoits dragged him on the ground, trampled over him, beat him and kicked him. Rs. 6000/- were demanded or threat to kill was there.
To save his life Tolchou Singh surrendered keys Of his boxes which were broken open and articles taken away. Similarly Kamini Devi, P. W. 3, wife of Tolchou Singh was dealt with, and keys of almirah taken, resulting in the removal of articles from there. At the point of death, the inmates were not allowed to open their mouths. The guest P. W. 4T. Ningthemjao Singh was also tied down, and the boy remained covered on account of fear.
According to Tolchou Singh he could recognise Motion Singh & Pisak Singh accused out of the lot. After the departure of the dacoits, Ningthemjao Singh untied his binding with the help of his teeth, ran to P. W. 1 Amusana Singh's house nearby and informed him of the occurrence. Amusana Singh who is a son of Tolchou Singh informed the chaukidar and villagers. He went to the Police Station in the morning and lodged ejahar. The value of the stolen property removed is said to be Rs. 2218/-.
3. All the 7 accused sent by the police after investigation were committed to the Sessions Court for trial under Section 395, I.P.C., out of which the above 4 were convicted and the remaining three were acquitted. The above 4 appellants pleaded not guilty to the charge and claimed to be tried. They produced no defence.
4. The factum of dacoity is not questioned. It is vigorously contested on behalf of the appellants that they were not among the dacoits and that their guilt is not proved beyond any reasonable doubt. The two appellants Jugeswar Singh and Yaima Singh have retracted their confessional statements recorded by the Magistrate to whom they were sent for the purpose, saying that the same were the result of police pressure and beating.
5. The only point for determination, therefore, is whether the four appellants or any of them were members of the gang who committed dacoity in the house of Tolchou Singh at Laimanai Basti on the alleged night and that their complicity in the crime is proved beyond any reasonable doubt.
6. The only evidence against Jugeswar Singh appellant is his own and confessional statement made before the Magistrate on 15-5-53 which was later on retracted by him in the committing Magistrate's Court, as well as in the trial court saying that it was the result of police torturing, threat and beating. As some material corroboration is necessary for basing conviction on a retracted confession, the learned Sessions Judge has taken help of the retracted confessional statement made by another co-accused Soibam Yaima Singh before the same Magistrate on 14-5-53, The same kind of evidence is against S. Yaima Singh appellant also and nothing more, viz., his own retracted confessional statement which is sought to be corroborated by retracted confessional statement of Jugeswar Singh co-accused.
7. It has thus become necessary to scrutinise both the retracted confessional statements of the two appellants on which their conviction is based and their corroborative value.
8. It is also to be mentioned here, that tile above two appellants are stated to have committed not less than 4 dacoities at different places and that the above confessing statement is with respect to all of them though dealt with separately in a very summary manner in one and the same statement of the above dates (sic).
9. The relevant portion of the confessional statement Ex. PG made by W. Jugeswar Singh appellant before the Magistrate on 15-5-53 with respect to the dacoity in question runs as follows:
I am also called Juge. About 3 months before joined a dacoity committed in the house of a person of Laimanai Bustee who was not known to me. We were 8 dacoits:
1. Soibam Yaima Singh of Tekcham Bustee.
2. Soibam Angou Singh of the same place.
3. Heikrujam Angou Singh of Sapam.
4. Sapam Abung of Sapam.
5. Mohan of unknown Yumnak of Hiyanglam.
6. Pisak Singh of Wabagai.
7. Takhellambam Ningthoujao Singh of Thaubal.
8. I myself.
I took a gun. It has now been taken away by Eurna and one Ibotombi. It is a pistol. We got one bicycle, one gold ring and some rupees as our booties. The cycle was taken away by Purna. The ring was taken away by one - I have forgotten his name. As regards money, it was distributed among us and each got about Rs. 50/-.
10. Soibam Yaima Singh's confessional statement recorded on 14-5-53 with respect to the present occurrence is as follows:
Joined dacoity four times. The first was committed about 4/5 months before at Langmeidong by 8 of us. We are:
1. Waikhom Juge of Papan.
2. Takhellambam Ningthoujao of Thaobal.
3. Heikrujam Angou Singh of Sapam.
4. Sapam Abung of the same place.
5. Keisam Pisak of Wabagai.
6. Mohon of unknown Yumnak of Hiyanglam.
7. Soibam Angou of Tekcham.
8. I myself.
I did not know the Yumnak of the house therein (sic) committed dacoity. We got one flannel wrapper one cycle & Rs. 1007/- as our booty. The wrapper and the cycle were taken away by Juge. The money was distributed among us. Juge brought a gun. I was posted at the gate to watch men passing.
11. The narration of facts in the above two confessional statements whose corroboration is sought by the other, is so different that it is difficult to reach a conclusion that they are with respect to the same occurrence. Thus while Jugeswar has stated on 15-5-53 that it was about 3 months ago that he joined a dacoity committed in the hous of a person of Laimanai Basti with 7 others, Yaima Singh has stated on 14-5-53 that he joined a dacoity committed about. 4/5 months ago in the house of a person, whose Yumnak he did not know, at Langmeidong. The booty taken away by the gang is stated by Jugeswar Singh to be one cycle, one gold ring and some rupees, out Of which the cycle was taken away by Purna, the ring was taken away by another whose name he did not know and the cash was divided between all of them (who are mentioned to be 8 persons) and each got Rs, 50/-.
It is to be noted here that the name of Purna is not mentioned by Jugeswar Singh as one of the dacoits in this dacoity. With regard to the booty Yaima Singh, has stated that it consisted of one flannel wrapper, one cycle and Rs. 100/-. The wrapper and cycle he says was taken away by Juge (Jugeswar Singh) and the cash was distributed among all of them.
Thus according to Jugeswar Singh, the amount of cash got from the dacoity was about Rs. 400/- as it is only then that he could get Rs. 50/- as his share when it was equally distributed amongst all of them who were 8 persons and according to Yaima Singh the money consisted of only Rs. 100/-. It cannot be said, therefore, that these two appellants are referring to the same dacoity when the time, place and the booty got, are so different. Under the circumstances the corroborative value of one statement of the other is nil.
11a. The learned Sessions Judge has tried to reconcile Langmeidong (a place where Yiama has stated that the dacoity was committed) to mean Laimanal (as stated by Jugeswar Singh) as both of these Bastees are situated very near to each other and that Langmeidong Bastee is much bigger than the other and so he has concluded that Yaima Singh must have meant Laimanai Bastee which is less important.
12. I can only say such a conclusion is wholly unwarranted. In fact no such conclusion can be drawn under the circumstances when 4 different dacoities are mentioned to have been committed by the two accused appellants in the same confessional statement.
A retracted confession has seldom any rative value for another retracted confession at a co-accused. So the only evidence against Jugeswar Singh is his own retracted confessional statement standing all aloof without any the least corroboration. The confession itself is so summary and discrepant that no reliance can be placed on it.
Thus, how could the cycle be taken away by Purna who is not mentioned as one of the dacoits? Again the value of the property stolen is contradicted by other prosecution evidence. The list given on the spot itself discloses that it was worth Rs. 2218/- which is far more than the value stated in the confessional statement. ' As far as Yaima Singh, the same argument holds good and apart from it, he has not stated that the dacoity alleged to have been committed at Laimanai Bastee, was committed there. He has clearly stated that it was committed at Langmeidong. Thus offence under Section 395, I.P.C. with which both the above appellants viz., W. Jugeswar Singh and Soibam Yaima Singh were charged, has not been proved beyond any reasonable doubt. It is held accordingly.
13. I have to remark that the learned Magistrate who recorded the above two confessional statements ought to have made the matter mate clear by putting suitable questions. It is not enough to write the very brief statement made by the accused which does not disclose the matter property. It is the duty of the Magistrate to put suitable questions to have the ambiguity cleared. Confessions should never be recorded in such a cursory manner.
14. I take up the case of Muhon, Singh appellant now. The evidence against him is of threefold, character viz. (a) he has been named by the other 2 co-accused in their confessional statement, afterwards retracted, as one of the dacoits (b) he is Identified by Toichou Singh P. W. 2 owner of the house and (c) the recovery of a cycle pump from his house.
15-27. (After considering all these factors, the judgment proceeded).
28. All this reflects on the unsatisfactory nature of the investigation made in this case. Such documents & the like which are to form part of judicial record later on should never be prepared in pencil. They should always be in ink and should be legible.
29. In view of the above observation, it is held that complicity of Muhon Singh appellant in the offence with which he is charged is not proved Satisfactorily; he is given benefit of doubt.
30. The conviction of Keisham Pisak Singh appellant rests upon the identification of Tolchou Singh P. W. 2 and the retracted confessional statements of the other two accused Jugeswar Singh and Yaima Singh. I have already ruled out the two confessional statements while dealing the case of both the co-accused appellants. They, therefore, cannot be taken into consideration for proving the guilt of Pisak Singh when they are ruled out against the makers of them. Tolchou Singh's identification has already been found unworthy of any reliance while dealing the case of Muhon Singh. I find, therefore, that the guilt of Pisak Singh appellant is also not satisfactorily proved.
31. In view of the above, the conviction and sentence passed against all the 4 appellants namely, Elangbam Muhon Singh, Waikhom Jugeswar Singh, Soibam Yaima Singh and Keisham Pishak Singh in sessions trial case No. 2 of 1953 by the learned Sessions Judge, Manipur, are set aside with the result that all the four criminal appeals Nos. 1 to 4 of 1954 as detailed above are allowed.
32. A copy of the judgment to be sent to the District Magistrate for proper action.