(1) The three appellants were convicted under S. 395 of the Indian Penal Code and each of them was sentenced to rigorous imprisonment for three years by the learned sessions Judge, Akola in Sessions Trial No. 8 of 1959 The charge against the appellants was that on 11th September 1958 they, along with two others, committed dacoity and looted grocery articles belonging to the Akbarali Syed Anwar and thus committed and offence under section 395 of the Indian Penal Code.
(2) Akbarali Syed Anwar has a grocery shop at Khetri and his son-in-law Abdul Munaf is working in his shop. A few days prior to the last pola day, he sent Abdul Munam and one Jardarkhan rto make purchase from Khamgaon from the shopof one Haji Adam Bodabhai, with which shope he had on a Khata. Rs. 500 were paid by him for being paid to the Khamgaon shop towards his previous dues. Abdul Munaf and Jardarkhan left Khetri on 9th September 1958 and reached Khamgaon via Balapur in the evening Rs.500/- were paid in theshop of Haji Adam Bodabhai and Abdul Munaf and Jardarkhan stayed overnight at Khamgaon. On the next day, Abdul Munaf, purchased grocery articles worth Rs.900/- and Jardarkhan purchased articles worth Rs.600/- consisting of wheat, edible oil, gram dal, cocunts Bidis, betelnuts etc. These rticles were given from the shop by one Abu who, it appears, wrote chits bearing Akbaralis name and put those chits on the oil this which were purchased. A torch of 2 cells was also purchased byAbdul Munaf from Taheri shop, at Khamgaon. On the 10th in the evening a truck was engaged and the goods were loaded into that ruck and at about 8-30 p.m Abdul Munf and Jardarkhan left Khamagon. They appear to have been held up at Balapur on accunt of the rains and on 11th September at 11 a.m. they reached Babhulgaon where the truch had to be unloaded because there was only Kacha road from Babhulgaon to Khetri. In accordance with the instructions left at Khetri 21, donkeys had been sent to Babhulgaon at about 1 P.M. for taking these articles to Khetri 21 donkeys had been sent to Babhulgaon at about 1 P.M. for taking these articles to Khetri. The owners of these donkeys were Govinda, Mara, Sheoram and Motiram. The grocery articles were loaded on these 21 donkeys The articles purchased by Abdul Munaf were loaded on 12 donkeys belonging to Mara and Govinda, while the grocery articles purchased by Jhardarkhan were loaded on 9 donkeys to wards Khetri. Abdul Munaf and Jardarkhan asked them about the remaining 12 donkeys, but both of them told them that the donkeys would come soon. The party thereafter proceeded to Chatari. It may be mentioned that the distance. Then shouts and abuses were hared by them and Abdul Munaf flashed his torch to see what was the matter, when he saw the present apellants and two others. According to the prosecution. Abdul Munaf knew accused Nos. `1 and 2 by their names and the other three by their faces. Accused No. 1 Bakshia, it is alleged, put a sickle around Abdul Munaf's neck and someone snatched the torch from is hand. It is the prosectuion case that the dacoits, who were coming from the posite direction, asked sheoram to get down from the donkey and sheoram, being frightened, got down from the donkey and went back running towards Motiram. It apears that when the dacoits approached. Abdul Munaf and Jardarkhan, Sheoram and Motiram ran away with the 9 donkeys towards Khetri. When Abdul Munaf was attacked by one of the dacoits, Jardarkhan went ahead and asked them what the matter was, and the accused are said to have rushed at Jardarkhan also. Accued No. 1 is the alleaged to have put his sickle round jardarkhan neck, but Jardarkhan managed to escape. Abdul Munaf were running to Khetri and told Akbarali,who was sitting in the groery shop, that accused No. 1 Bakshia and accused No. 2Rustum and three other Mahars of Chatari had tried to loot their goods. In the meanwhile sheoram and Motiram arrived with the 9 donkeys. The goods on those donkeys with the were unloaded and sheoram and Motiran went away to their respective houses. Within a short time thereafter, Jardarkhan and Govinda arrived at the shop. According to the prosecution, Govinda and Mara and it appears that the dacoits, according to the prosecution, lotted goods from 4 of these donkeys. Subsequently the remaining 8 out of the 12 donkeys arrived at the shop with goods loaded on them and these goods also were unloaded. Akbarali in the meanwhile personally went to the house of the Police Patil of Khetri, one Tulshiram, and gave him information about the incident. It seems, however, that Tulshiram told Akbarali when he wentto the village limits that the sopt where the offence appared to have been committed was within the jurisdiction of the Police Patil of Chatari and, therefore, a complaint should be loedged with the Police Patil ofthat village. That is why Akbarali, Tulshiram, Jardarkhan, Govinda and two Chowkidars proceeded towards the scene of offence, when thy met at a short distance Mara who told them that the dacoits have taken away his cap and looted keys goods from 4 donkeys. It seems that the 4 donkeys also arrived there without the goods on their backs and thereafter the party reached the scene of offence and found there one tin of edible oil, two saddles of donkeys and a chaddar belonging to Abdul Munaf lying there. The party proceeded to the village Chatari, but Mara who was feeling tired returned back to Khetri. At Chgatari Akbarali and his comapnions went to the house of UTTAMARAO Police Patil. There Akbarali lodged at written complain before him saying that accused Nos. 1 and 2 and three other Mahars had looted goods belonging to him from 4 donkeys at a distance of about 2furlongs from Chatari. Uttamaraao Patil accepted the complaint and wrote and endoresment and should have forwarded the same to the Police station at Channi which, it appears is at a distance of about 2 miles from Chatari as well as from the village of Khetri. But it seems that a Maramari had taken place in the grocery shop of one Sidaji at Chatari on the same night and information about this incident had already been sent to the police station at channi. That was why his party that the Police sub Inspector of Channi would soon arrive at Chatari and therefore, they shoud wait there fro some time, so that the compliant of Akbarali could be handed over to the police Sub-Inspector Personally. Mohd, Awar Mohd. Sarwar, Police sub Inspector f Channi, arrived at the village of Chatari at about 10-30 P,M. He first visited Sidajis shop and arrived at the villag Chavdi at about 11 P.M. and as soon as he arrived there Akbarali handed over his as written complaint to him, which is about Exhibit. P,.1On receipt of the complaint, the sub Inspector went to the scene of offence where one tinn edible oil, two donkey saddles, one Chaddar, and empty box and an old gunny bag were found lying there and all these articles were attached under seizure memo Exihibit p4 . A panchanama (Exhibit P-3) regarding the scene of offence was also made there. When the sub Inspector went to the Maharwadi at Catari, accused Nos 1 and 2 were found in their respective houses and both of them were taken to the village chavdi for interrogation. On the next day, i.e, on was the 12th at about 6.30 a.m., the next day, i.e., on the 12th at about 6.30 am. the sence of offence was visited by the Sub- Inspector along with the Panchas and the complainant Akbarali. When the neighbourhood was inspected, a wheat bag was found at a distance of about 35 paces from the scene of offence in a field in which cotton crop was growing. The wheat bag (Art F) was attached under a seizure memo (Exhibit p-6) and and a distance o 40 paces from this spot a box containing Bidids, betelnuts, etf. was found. That was attached under a seizure memo (Exhibitp-7) and a panchanama (Exhibit p-5) regarding the place where these articles were found was also made. After the sub Inspector returned to the village, accused No. 1 and Bahkshia was called and questioned in the presence of two panchas. It is alleged by the prosecution that the made a statement that he had kept certain grocery articles and corn concealed beneath a stack of Kadbi stems in a field outside the village and be offered to point out and produce these articles. A memo of the statement Ex P-8 was made and accused no. 1 Bhakshia led the police and the panchas to a field stiuate at a distance of about 2 edible il, a bag of wheat, a bag of grm dal and a stack of Kadbi stems situated in the field of on Isanji Supaji and these articles were attached under s seziure memo (Exhibit P-9) After returning to the village, the statements of several persons were her, accused No. 3 Maruti was sent to Balapur Maramari which had taken place at chatari near Sidajis shop. On 14 the September Police Inspector Tikale questioned accused No.3 Maruti in the presence of two panchas and the said accused is alleged to have made a statement that he had kept and offered to point out and produce the same. A memo of his statement Ex. P. 22 was made and accused No.3 led the Police an the panchas to earthen pot in his house. That toch was attached under aa seizure memo (Exhibit P 20) and it is alleged to have been identified by Abdul Munaf and Jardarkhan. An identification parade was held on 16th september 1958 when abdul Munaf, Jardarkhan, Govinda and Motiram identified accused Nos. 1 to 4 as the dacoits of that evening. Accused No. 5 Vikram was undergoing medical treatment. So a separate identification parade was held with regard to him on 4th October 1958 and he was further investigation a charge-sheet under S. 395 of the Indian Penal Code was sent against the three appeallants and two others. The Committing Magistrate, after holding a preliminary inquiry, committed the three appellants along with two for the offecne under Section 395 of the Indian Penal Code.
(3) The defence of the accused was that all of them were falsely implicated and they were completely innocent. All the five original accused were residents of Chatari village and thier plea was that other communities were not pulling on well. They had become Navabudhas about two years back and the caste Hindus were trying to create trouble for the Mahars. It was te case of the accused that in all 75 or 100 Mahar families were residding In the village and they had stopped removing of dead animals since about 3 years and that had given offence to the caste Hindus. Then on Pundlik the Patil gave a donation of Rs. 4000/- for a school in the village, a meeting was convened about it in and it was decided to construct a school, and the suggetion of the accused was that the Maahars were asking for half of the amoung for their own purposes and that created fruther ill feeling btween the mahars and the other communites. One Dnuyandeo was murdered in the village about 3 ears back and some people were suspecting accused Nos. 1,2 and 5 in connection with that murder. It is the case of the accused thato account of this ill feeling thy have been falsely implicated in the present case. On the night of the dacoity there was an attempt to commit dacoitty at Sidajis shop at Chatari, and sidaji, his brother Jairam, Jagdeo and Chinkaji, who ere panchas, and the Police Patil Tulshiram have, therefore, implicated the accused in thepresent offence and these persons had somehow induced Akbarali and Abdul Munaf and the other witnesses to make false case of dacoity against the accused.
(4) The learned Sessions Judge gave a finding that a dacoity did really take place on 11th September 1958 at 7-30 P.M. at a distance of about 2 furlongs from Chatari village, as alleged of by the prosecution. He rejeced the defence o the accused and convicted accused Nos. 1 to 3, the present appellants, of the offence under Section 395 of the Indian Penal Code and sentenced each of them to three years rigorous imprisonment. As regard original accused Nos. 4 and 5 Daulat Jari and vikram Raoji, the leanred Sessions Judge held that the evidence was not sufficient to justify their convictio on the charge levelled against them and they were consequently given the benefit of doubt and acquitted. It is against the cnviction of the appellants under S. 395 of the Indian Penal Code that the present appeal has been filed.
(5) Mr. Naidu on behalf of the appellants contends that the night of the offence was admittedly a very dark night and the offence is alleged to have taken place at 7-30 p.m. and the evidenceimplicating the present appellants, according to Mr. Naidu, is not cogent enough to justify their conviction. It is not disputed in this court that the grocery articles belonging to Akbarali which were being carried on donkeys between Chatari and Khetri, were looted and the dacoits carried away the grocery articles from the backs of 4 donkeys. There is abundant evidence on the record to justify the finding of the trial court that a at 7.30 p.m as alleged by the prosecution, The only question, is whether the present appellants were the dacoits, and on that point the findings recorded by the learned sessions Judge are challenged by Mr. Naidu.
(6-9) As against the three appellants, there is first of all oral evidence and that is sought to be supported by the prosecution by the evidence about the discovery of certain articles as a result of information given by appellant No. 1 Bakshia and appellant No. 3 Maruti.
(His Lordship then discussed the evidence on record and continued as under:)
(10) This is all the oral evidence on the record so far as the complicity of the present appellants In 2the offence of dacoity is concerned. It may be mentioned that the learned sessions Judge was not impressed by the evidence regarding identification of the accused by the eye witnesses nd it is not relied upon on behalf of the state in this appeal either.
(11) So far as the appellants Nos. 1 and 3 are concerned, the prosecution relies on the discovery of certain articles as a result of the information given by the appeallants Nos. 1 and 3 accused No. 1 Bakshia was questioned by the Police sub Inspector on 12 the september and he made a statement in the presene of two panchas, Jagdeo and baliram, which is recorded at Exhibit P 8 That Statement so far as it is admissible, was that accused No. 1 and his partners had hidden grocery articles under a heap of kadba in a field and he would show the same and hand over the same. Now, in pursuance of this statement accused No. 1 took the panchas to the field of the Isnaji supaji and produced from a heap of Kadba in that field foru articles viz., a tin containing oil having a label bearing the name of Akbarali (art A) one of gunnybag containign wheat (art G) one gunny bag containing gram pulse (Art H) and on tin containing tea power (Art C)only on pach was examined in this connection, viz Jagdeo, and Mr. Naidu contends that panchas employed by the police on that day when not only gorcery articles were seized from near the scene of offecne but also in connection with the seizure of articles alleged to have been produced by accused No. 1. In our view, the mere fact these two panchas acted also in respectof the seizure of articles eleswhere would not vitiate in any manner the evidence as to the production by of Kadba in the field of Isnaji Supaji. Isanji Supaji, the owne of the field, has not been examined, but according to Jagdeo, accused No. 1 offered to point out and produce some propertuy concealed by him beneath a kadba stak. That supports the statement recorded in the memo (Exhibit P 8) It is contended by Mr. Naidu that according to the Jagdeo evidence accused No 1 had told the pachas that he had kept half a bag of wheat, one tin of edible oil, one tin of loose tea and a bundle of chana dal, but this statement is not to be found of recorded in exhibit P 8 This is again a matter of detail and we do not think that merely because of this omission the evidence on thispoint is in any manner vitiated. Al the four articles have beebn identified by Abdul Munaf as being amongst the articles purchased by him at Khamgaon. What is more, according to him, when he puchased the articles at Khamgaon one Abu wrote ehits bearing Akbaralis name and put those chits on the oilttins, and the seizure memo (Exhibit P-9) indidcates that Art. A was a tin of oil with a label bearing on it the name of Akbarali. That would clearly theproperty produced by accused No. 1 as containing one of the articles which were purchased by Abdul Munaf at Khamagaon. This evidence of the production of the articles by accused No. 1 Bakshia is a strong piece of corroborative evidence whihc would support the oral evidence on the record.
(12) There can be no dispute that the statement recorded in Exh. P 8 attributed to accused No. 1 is admissible under S. 27 of the Evidence Act. The legal position as regard discovery in consequence of information received from an accused person is well settled. Under S. 26 of the Evidence Act, no confessin made by any person whilst he is in the immediate presence of a Magistrate, shall be proved as against such person. Section 27 provides as exception and it states that when any fact is deosed to as discovered in consequence of information received from a person accused of any offecne, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Kottaya v. Emperor 49 Bom LR 508 : AIR 1947 PC 67 it has been held by the privy council that the condition necessary to bring section 27 to operation is that the discovery of a fact in consequence of information received from a person accused of any ofence in the custody of the police officer must be deposed to, and so much of the information as relates to the fact thereby discovered maybe proved. If a fact is actually discvoered in consequence of inforamtion given some guarantee is affored thereby that the information was true and that is why it can be safely allowed to be given in evidence. But the Fact discovered within S. 27 of the Evidence Act cannot be treated as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledged must relate distinctly to this fact. The principle laid down in this leading case has been followed in several cases of this court and has been referred to : AIR1952Bom299 where it was held that when a statement made by an accues person while in custody of a police offficer in tendered in evidence under S. 27 of the Evidence Act, on the ground that an article which is concealed and the accused knowledge of its whereabouts Acrt, are discovered in consequence of the statement, the words included in the statement with regard to the words included in the statement with regard to the authoriship of the concealment, e.g, I have concealed , I have hdden or I have kept an admissible in evidence under S. 27 of the Act, Now in the present case, accused No. 1 stated before the panchas that he and his partners had hidden cerain grocery articlesunder a heap of Kadhba in field and he actually under a took the panchas tto the fieldof one Isanihi Supaji and produced four articles from below the heap of Kadaba in that field It is clear, therefore, that the place where thre articles were hidden was discovered as a result of this information and the fact that accused No. 1 led the pancas to thisplace and produced the articles shows that he had not only knowledge as to the place where they were hidden but was able to produce them before the panchas, very soon after he made the statement.
(13) Mr. Naidu does not contest this legal position, but he argues that S. 27 of the Evidence Act would not be applicable in the present case because at the time the alleged statement was made by accused No 1 he was not in custody of any police officer. In order to appreciate this argument. certain facts have to be stated., The offence of dacoity took place on 11th September 1958. The first information was lodged at 11 p.m.on that day, in which the name of accused N. 1 was mentioned as being one of the dacoits. The statement recorded in exhibit p-8 was made by accused No. 1 before the panchas on 12 th september and on that very day four articles were produced by him beofre the panchas, from beneath a heap of kadba in a field the evidence of Police sub Insipector Mohd. Anwar indidcates that he had questioned Accused No. 1 Bakshia in connection with this offence. But he actually arrested him Balapur on the 16th. The argument of Mr. Naidu is that if accuse No. 1 was arrested on the 16th, it could not be said that he was in custody of any police officeron the 12th and, therefore, S. 27 of the evidence act would not apply. We are not prepared to uphold this argument. Chapter V of the Code of Criminal procedure contains provisions as to arrest, escape and retaking of the accused, and S. 46(1) provides that in provides that in making an arrest the police officer or othe person making the same shall actually touch or confine the body of the person to be arrested, unless there bne a submission to the custody by word or acton. It is true that the actual arrest of accusedNo. 1 on the 12 th and as a result o that interrogation accused No. 1 made a statement which is recorded at Exhibit P-8 and he not only made a statement but took the panchas and the police officer to the field of Isanji Subpaji and produced 4 articles from below the heap of Kadaba in that field and it has been proved that there were some of the articles looted. In our view, the fact that accused No. 1 was interrogated on the 12 th and made a statement and led the panchas and the police officer to a field and therfter, produced certain articles, which are the subject matter of dacoity, would be sufficient to establish that there was submission on his part to police custody. We are supported in this view by a decision of the Calcutta High Court reported in Sudam Chandra v. Emperor, v. : AIR1933Cal148 , where it was held by a Division bench that where a police officer, although he arrested a after the finding of the cocain with him, intervieable time and walked with him to the place where the accused pointed out the spot where the cocain was in police custody at the time when he made he found and his statment was admissible under S. 27 of the Evidence Act. In our view, thereofre the evidence as to the statement made byaccused No. 1 on 12th September 1958 as well as te evidence as to the discover of a 4 articles produced by him would be admisible under S. 27 and would suport the prosecution case that accused No. 1 was guilty of the offence of dacoity.
(14) As regards accused No. 3 it appears that he was also arrested on 16th September. But on 14th September he made a statement recorded at Exh. P 22 before two panchas, Chinkaji Dhore and Nathu Dhore, to the effect that he had kept one batter in an earthern pot in his house and he offered to give it to the panchas. Pach chinkaji was examined in connection with this statement as P. W 10 and he deposed in this evidence that such a statement was made by accusedNo.3 and when they went to accused No. 3 house the accused Produced a torch which was attached under a seizure memo (Exh. P-20) This torch is Art. L. and it was identified by Abdul Munar (P.W. 1) as the torch which was purchased by him at Khamgaon from a cutlery shop.the ownerof this cutlery from a shop, one Abbasibbhai (P.w.9) was also xamined by the prosecution and according to the evidnce he had sold that torch to Abdul Munaf on 10th September 1958 and there was an entry in connection with that sale in his accounts, though Abdul Munafs name was not mentioned in the accounts. Mr. Naidu contents that this ideification is a very weak piece of evidence because torches of this type are obtainable in the market. It is true that when art L. was shown to witness abbasibhai it had become rested. But since Abdul Munaf also identified it as the one purchased by him at Khamagaon, we think that the evidence as to the identification of the torch can be relid upon. As regards the statement made by accused No. 3 at Exhibit P-22 and its admissibility under S. 2 of the Evidence Act, Mr. Naidu raised thed same contention even with regard to this statement viz. tha accused No 3 as was not in police custody on 14th because he was arrested on 16th. hat argument of his we have examined nd rejected in connection his we have examined and rejected in connection with Exhibit P-8, the statement made by accused No. 1 and we do not think that it would be correct to say that accused No3. was not in police custody when he made the statement, in view of the fact that he also was interrogated and made a statement in the presence of the police officer and the panchas and produced the toch from his house the in thier presence. In our opinion, therefore, this production ofthe torch which Abdul Munaf purchased at Khamagaon by accused No. 3 is also a piece of evidence which would corroborate the oral evidence in the case and especially the evidence of Govinda tht accused No.3 was also one of the dacoits who were responsibile for looting grocery articles.
(15) There is however some difficulty as regards the case of accused No. 2 Rustum It is true that the evidence of Motiram, Abdul Munaf Jardarkhan and Govinda would show that he was present at the scene of offence. As we have already stated, Motirams evidence cannot establis the case against the accused because he appears to have bolted away as soon as the dacoits began to abuse him and sheoram. Abdul Munaf and Jardarkhan do not seem to have witnessed the removal of the grocery articles, but their evidence would undoutbedly indicate that accused No. 2 was also present. The evidence of Govinda (p/W.3) which we have accepted would show that accused No., 2 was not only present but whenever he went near the donkeys both accused Nos. 1 and 2 used to rush at him. Mr. Mudholkar contends that his evidence of Govinda, taken alng with the fact that the name of accused No 2 Rustum is mentioned in the first information report, is sufficient to establish thathe also was one of the dacoits. At the same time there is no evidence on the record that accused No. 2 was in possession of any articles which were the subject matter of dacoity. He made no statement and produced no article. Admittedly it was a dark night when the dacoity was committed and though the oral evidence would indicate that he was present at that time, we do not thin that, so far as accused No. 2 is concerned, it would be safe to rely on the evidence of Govinda that he also took an active part in the dacoity along with accused No 1. It may that he was present at about that time as deposed to by the witnesses. But,in our judgment, there is a possibility of his not having taken any part all in the acutal looting as deposed to by Govinda. A reasonable doubt, therefore arises as to his guilt under S. 395 of the Indian Penal Code and we must gve him the benefit of that doubt.
(16) The result is that the appeals of accused No. 1 Bakshia and accused No 3 Maruti fail and the Indian Penal Code and the sentence of three years rigorous imprisonment imposed on each of them are confirmed. But theappeal of accused No. 2 Rustom will be allowed his conviction under S. 395 of the Indian Penal Code and the senctence imposed upon him will be set aside and he will be directed to be acquited and discharged so far as this case is concerned.
(17) Order accordingly.