1. The three appellants, Sayed Dadan, Daulat-khan and Rangnath, who were the original accused, 1, 2 and 3, were charged under Sections 392 and 397 of the Indian Penal Code. At the end of the trial, the learned Sessions Judge, Auran-gabad, by his order dated 24-12-1956, convicted accused Nos. 1 and 2 under Ss. 392 and 397 and sentenced each of them to seven years' rigorous imprisonment. He also found accused No. 3 guilty under Section 392, convicted him thereunder and sentenced him to four years rigorous imprisonment. It is against this order of conviction and sentence that the present appellants have preferred these appeals.
2.The prosecution case was that, in the evening of 11-2-1956, the three accused, armed with guns and a stick, came to the house of witness Ganpatrao at the village Nipani Pokhari in Jalna taluka, District Aurangabad. Thai was at about 6 p. m. Accused Nos 1 and 2 (Sayed Dadan and Daulat) were in Khaki dress, each armed with a gun, and the 3rd accused was dressed in ordinary dress but carried with him a stick. Witnesses Saraswati and Godavari, the two daughters-in-law of Ganpatrao, were, at that time, sitting on a Chabutara outside the house of Ganpatrao. The 2nd accused Daulat asked wit. Saraswatibai us to who was the owner of the house and, on being told that it was Ganpatrao's house, the 2nd accused asked her where Dasopant, the elder brother of Ganpatrao, was. Saraswatibai told him that Dasopant had gone to Jalna and that Ganpatrao was in the fields. The 3rd accused asked Saraswati to fetch Ganpatrao and when Saraswati asked him as to why they wanted Ganpatrao, the 2nd accused told her that the 1st accused was the Police Moharir and that he had some work with Ganpatrao. A boy of about 12 years of age, one Dinkar, the maternal-cousin of Saraswati's husband, was playing near about there and, therefore, Saraswati asked Dinkar to fetch Ganpatrao from the fields. On his way towards the fields, Dinkar found Ganpatrao and his cousin Bhimrao in a Kirana shop and brought them to the house. When they reached the house, accused Nos. 2 and 3, all of a sudden, caught Ganpatrao and Bhimrao, dragged them inside the house and assaulted them. Accused No. 2, Daulat, struck Ganpatrao and Bhimrao with the butt end of his gun and accused No. 3 also assaulted them with his stick. Just before dragging Ganpatrao and Bhimrao into the house, accused No. 1 had fired his gun.
2a. After beating these two men, accused Nos. 2 and 3 demanded of them to hand over moneys. Daulat, accused No. 2, then assaulted Saraswati and Godavari with the butt end of his gun and the 3rd accused also beat Saraswati with his stick. Accused Nos. 3 and 2 thereafter snatched away 'Mangalsutras' from the persons of Godawari and Saraswati respectively. The two accused then went to a room in the southern part of the house adjacent to the Osri where they broke open three boxes and carried away therefrom two 'Ekdanis', two gold rings and one 'nath'. While they were still inside the house, the 2nd accused had kept on firing his gun at the feet of these people.
3. The 1st accused, all this time, was standing on guard outside the house and kept on firing his gun. The two accused Daulat and Rangnath, were inside the house for about hall an hour to 3/4th of an hour and then all the three of them went away carrying the booty.
4. Ganpatrao and Bhimrao had injuries as a result of which they became unconscious. After a while the Police Patil wit. Waman came there but as the two women were frightened they could not and in fact did not give him any details of the incident in question. At the time of the robbery, the police Patil was in his field. He had heard the shouts but owing to fright he had gone to a temple. It was only after the culprits had left the village that the Police Patil went to the house of Ganpatrao and there he found the two women, Ganpatrao and Bhimrao lying injured and unable to speak due to their injuries.
5. Seeing the two men injured and the two women weeping, it seems that the Police Patil went to the Police Station House and made his report Exh. P-12 wherein, it would seem, because the had not ascertained the facts concerning the incident, he mentioned that there were about 50 dacoits who had entered the village and that property worth Rs. 1800 to 1900 had been looted from Ganpatrao's house. At about midnight, the police arrived and started the investigation. Panchanamas of the scene of the offence, of the things lying scattered about there and the injuries on the inmates of this house were then made.
6. Besides Ganpatrao, Bhimrao and the two women, there was one more person, wit. Bhujangrao, who was also injured by a bullet. The prosecution case was that when Bhunjag-rao returned from his field and reached his house, he heard 3 or 4 gun shots. He looked towards the house of Ganpatrao and saw a man outside Ganpatrao's house firing his gun. That was the 1st accused who fired at Bhujangrao. Bhujangrao, on being hit, went into his house from where his brother, a little later, removed him to the hospital at Jalna that very night.
7. The evidence of Dr. Satyakumar of the Jalna Hospital was that Bhujangrao had a fresh bullet wound in his stomach when he examined him. Ganpatrao had in all 9 injuries out of which two were serious and Bhimrao had six injuries of which only one was really serious. There was evidence that when the Police reached the village Pokhari that night, they found empty cartridges lying about in that house as also outside near the chabutra showing that guns were fired both in the house as also outside. The four inmates of the house had injuries and things were lying scattered about. The Head Constable Ramrao, who was the first Police Officer to reach the place in consequence of the report from the Police Patil, conceded in his evidence that as a result of his investigation he found that the Police Patil had given his report without actually going to the village and that he found that report (Ex-P.12) vague. Mr. Samant for the appellants argued from this evidence that Saraswatibai had told an untruth when she said that the Police Patil had come to her house soon after the robbery. But then there is no dispute and Mr. Samant told us so expressly about the fact of the robbery having taken place and guns having been used in the course of that robbery as also about the fact that the property of Ganpatrao was stolen and Ganpatrao and the three other persons having been injured during the course of the robbery. In view of there being no dispute regarding these facts, the point whether the Police Patil went to the house of Ganpatrao or not or whether he went there 'before making his report does not seem to be important. We do not think, therefore, that this fact, assuming that the statement of Wit. Saraswatibai was incorrect, would really affect her evidence to any appreciable degree.
8. Prom the evidence of the circle Inspector Mustafa Khan, who investigated the case, it would seem that he was at the time investigating six robbery cases in all and if was in the investigation of these cases that he recovered some cartridges from the 3rd accused Rangnath and a rifle from one Trimbak who had been arrested along with Daulat (the 2nd accused herein) in connection with those other cases. Although those cartridges have no connection with the present case, the circle Inspector found Rangnath having a bullet injury on one of his toes. The evidence shows that it was while he was investigating those other cases that this Officer arrested the present accused in connection with this case. Accused No. 3 was arrested in connection with this case on 26-4-1956 and the other two accused were arrested on 31-5-1956. That was how we were told by the learned Assistant Government Pleader that the identification parade in this case was held as late as 16-6-1956 although the incident in question took place on 11-2-1956.
9. The fact of the robbery not being in dis-pute, the learned Advocate for the appellants has agitated before us the question as to whether the appellants were in fact the robbers. Upon that question he has strenuously challenged the evidence of the five eye-witnesses who claimed to identify the culprits.
10. Before we go to their evidence and the contentions of Mr. Samant, we might make a few observations. The first is that Mr. Samant has not challenged that the Taluka Magistrate, wit. Purshottamrao, had held the identification parade in a bona fide manner. No allegations are made in connection with the holding of that parade. Secondly it appears clearly from the record that at the time of the identification parade the accused were not in police but in jail custody. Thirdly the witnesses did not know any of the accused who were all total strangers to them and therefore there is no question of their being hostile to the accused, But Mr. Samant's contention was that the parade was vitiated by reason of the fact that the police had shown the accused to the witnesses sometime before the date of the parade, This contention was based upon the allegation made by the accused before the Magistrate who held the parade that they had been shown to the witnesses while they were in the Police lockup. This objection was recorded by the Magistrate in the Panchanama itself. It is somewhat pertinent to observe in this connection that the 3rd accused, after his arrest on 26-4-1956, was produced before a Magistrate the next day on the 27th and was in jail custody from 8-5-1956 and he remained in jail custody thereafter until the parade was held. If at all, therefore the 3rd accused was shown to any of the witnesses, that could have been done between the 27th of April to the 8th of May 1956.
11. Apart from this allegation and the question as to the justification or otherwise thereof, the position on the question of identity emerging from the evidence is as follows: in Court Wit. Saraswatibai identified all the three accused and so also witnesses Ganpatrao, Bhimrao and Dinkar. Wit. Bhujangrao identified accused No. 1 alone. In the identification parade of which the panchanama is Exh. P-15, Saraswatibai identified accused Nos. 1 and 3 only but failed to identify accused No. 2. Gan-patrao and Bhimrao identified all the three accused. Dinkar identified only accused Nos. 1 and 2 and Bhujangrao identified accused No. 1. It is fair to observe that wit. Saraswatibai, while identifying accused Nos. 1 and 3 from the parade, picked out a wrong man by the name of Ratan-lal.
12. As recorded in the panchanama, Exh. P. 15, the three accused had alleged then that they had been shown to the witnesses at the time when they were remanded to Police custody and were in Thana Aurangabad. The 3rd accused further alleged that he was shown to the witnesses in the village Pokhari while he was in Police custody.
13. The first contention of Mr. Samant was that the fact that Saraswatibai and Dinkar identified all the accused in Court, although Saraswatibai had identified accused 1 and 3 only in the parade, and Dinkar only accused 1 and 2, showed that their evidence on the question of identity could not be relied upon. The second contention of Mr. Samant was that although Saraswatibai's case was that accused No. 2 had asked her when she was still on the 'Cha-butra' outside the house as to who was the owner of the house and where Dasopanl and Ganpatrao were, and in the house itself the 2nd accused had further asked her if she was from Donagar Shevli and to hand over to him her gold 'Patlis', and further more had snatched away her 'Mangalsutra' from her neck, she had failed to identify that very accused from the parade. His contention next was that although Dinkar claimed to have seen all the three accused outside the house, he had failed to identify accused No. 3 from the parade indicating thus that these two witnesses had not the full opportunity to recognise definitely the culprits and for that reason had failed to identify all of them. There is no doubt that there is considerable force in these contentions. The omissions of Saraswatibai and Dinkar would undoubtedly have carried considerable weight with us but for the fact that in this case the identification of the culprits does not merely Test with these witnesses only. Mr. Samant's contention however was that Saraswfitibai was the witness most fitted to establish the identity of the culprits; but then that is not strictly cor-.rect because like her. both witnesses Ganpat-rao and Bhimrao too had had the opportunity of seeing the culprits, first, outside the house and then in the house arid both of them were assaulted and therefore had a chance to see the, culprits from close quarters. There is next the fact that there was plenty of light as all witnesses are agreed that it was in the evening at about 6 p.m. and we have ascertained that the time of sun-set on that day was at 6-35 p.m. and all these witnesses are agreed that the culprits were in the house from 30 to 45 minutes in all. The next contention of Mr. Samant was that although the Police Fatil came to the house soon after the incident, Sa-raswatibai did not give him any particulars of the robbery. There is no doubt that ordinarily a witness placed in the position of Saraswatibai. would narrate the incident and also give particulars. But equally it is clear that she was in. a perturbed condition seeing her father-in-law and Bhimrao grievously hurt, their house robbed, and she and Godavaribai injured. The evidence of the Police Patil also shows that when he came to the house, both these women were weeping. Since there were two persons who were seriously injured, the first concern of the Police Patil would be to inform the police to have the two injured persons removed to the hospital rather than wait there to collect the details of the incident. In our view, therefore, there is nothing surprising that Saraswatibai did not give particulars of the incident in question at that stage. Her failure to do so, would not mean that she had not seen the culprits at the time of the incident as argued by Mr. Samant. Saraswatibai had at least three opportunities to observe the culprits : (1) when she saw them when she and Godavaribai were sitting on the 'Chabutra' outside, (2) when the culprits waited outside the house when Dinkar went to fetch Ganpatrao until Ganpatrao and Bhimrao arrived there, and (3) inside the house itself for more than half an hour. in these circumstances, it cannot be seriously disputed that Saraswatibai. had ample opportunity to observe the faces and. the features of the culprits who rushed into the house, assaulted her amongst others and robbed the property from the house.
14. The evidence of wit. Ganpatrao was, to our mind, as important as the evidence of Saraswatibai. The only defects that Mr. Samant could point out to us were, two discrepancies picked out from his evidence. Mr. Samant pointed out to us that this witness had admitted that he had told the Moharir that night that 'the thieves were strangers and I could not recognise them'. Mr. Samant's contention was that this part of his statement clearly indicated that wit. Ganpatrao was not in a position to identify the culprits. But we have looked carefully into the passage from which this sentence is picked out by Mr. Samant & it is fairly clear to us from the context that what Ganpatrao said was not that he would not be able to identify the culprits but that he did not recognise the culprits in the sense that they were strangers and unknown to him. The next discrepancy that was relied upon by Mr. Samant was that Ganpatrao admitted that he did not tell the Jamadar that night about the two 'mangalsutras' having been robbed that evening. But then there is also the explanation given by Ganpatrao, which does not appear to us to be in any way unacceptable, that he did not mention the two 'mangalsutras* because he thought that wit. Saraswatibai must have already mentioned them before the Jama-dar. As we have already pointed out, these were the only two discrepancies that were relied upon by Mr. Samant in the evidence of Ganpatrao. In our view, neither of these discrepancies-could be said to be so vital as to adversely affect the value of Ganpatrao's evidence. It is needless to say that wit. Ganpatrao does corroborate in all material particulars wit. Saraswati-bai in the narration of the events that took place that evening.
15. So far as the third eye-witness Bhim-rao is concerned, Mr. Samant pointed out to us his omission to state before tne Jamadar that he became unconscious as a result of the injuries received by him. In our view, this is not an important omission. But then it is to be remembered that the evidence of wit. Ramrao shows that when he went to the house of Ganpatrao, he found that Bhimrao and Ganpatrao were not speaking owing to the injuries received by them. It seems, however, that Bhimrao and Ganpatrao recovered consciousness sometime after the incident because Bhimrao himself admits in his evidence that he talked to Ganpatrao and Sara-swatibai about his injuries as also their injuries. Mr. Samant then relied upon another omission of wit. Bhimrao in not mentioning the 'Mangal-sutra' to the Jamadar and his explanation was that it was possible that he might have forgotten to mention this fact. Again we find that this explanation is not unnatural for at that stage while making his statement before the Jamadar Bhimrao would be more concerned about his injuries rather than the particulars of property lost as a result of the robbery. Bhimrao in his evidence does concede, as pointed out to us by Mr. Samant, that he did not see the Police Patil coming to the house that evening. But then his not seeing the Police Patil at tne time does not necessarily mean that the Police Patil did not come to the house that evening nor does it mean that Saraswatibai was making an untruthful statement in regard to the Police Patil having come to the house that evening. Mr. Samant then pointed out to us the statement of Bhimrao in his evidence that lamps were lighted when sometime after the incident he and Ganpatrao and Saraswatibai were talking about the injuries received by them. Mr. Samant told us that inasmuch as none of them could have lighted these lamps after the incident this fact would indi-cate that the lamps had already been lighted before the incident of robbery took place and that therefore the time of the incident given by these witnesses as 6 P.M. could not be correct. But then Mr. Samant forgets that Bhimrao was quite clear that these lammps were lighted after the incident. It is no doubt true that he has not stated as to who lighted the lamps. It is possible that neither he nor Ganpatrao could have light-ed the lamps, but then there were two women Saraswatibai and Godavaribai who could have lighted the lamps and if Saraswatibai had been asked the question as to who lighted the lamps, perhaps she could have thrown some light upon that question. It is also possible -- and it is in fact in evidence -- that some of the neighbours did come to the house after the incident ana seeing two persons seriously injured, it is not beyond the scope of possibility that anyone of them might have lighted the lamps. The fact, however, that these lamps were found lighted by Bhimrao after the incident was over cannot therefore mean either that the time of the incident given by these witnesses was wrong or that at the time of the robbery these lights already been lighted. In our view, there is no substance in the criticism levelled by Mr. Sa-mant, against the evidence of Bhimrao.
16. There is next the evidence of wit Bhujangrao who, is an altogether independent witness having nothing to do either with Ganpatrao or anyone of the other witnesses. The criticism of Mr. Samant against the evidence of Bhujangrao was that at the time when he is. said to have been injured by a bullet, he was 100 paces away from the house of Ganpatrao and, therefore, this witness could not have seen the 1st accused with such definiteness as to be able to identify the 1st accused from the identification parade held in June, 1956. The evidence of Bhujangrao, however, is important in other respects, for he also states that the incident took place at about 6 p.m. when there would be light and he also makes it clear that at that time lamps had not been lighted. It is true that Bhujangrao had less opportunity than the other witnesses to see the culprits; but it must be remembered that Bhujangrao made it clear that when the 1st accused fired at him, there was no one else present near him. This would mean that there was no scope for confusion in his mind about the person who fired at him. It is clear from the evidence that nothing was urged against Bhujangrao. His evidence as to the identity of the 1st accused as the person who fired, at him and injured him with a bullet does not strike us as improbable or such as we cannot salely accept. The contention of Mr. Samant was. based only upon the statement made by trjls witness that the house of Ganpatrao is 100 paces away from his house. But then we must remember at the same time that the distance given by him on the spur of the moment was an estimate. In these circumstances we cannot help feeling that his evidence was natural, that considering, the fact that it was still only 6 P.M. and the time of sun-set on that day was 6-35 P.M. there was ample light to enable him to see the features of the man who levelled the gun and fired at him causing him a serious injury.
16a. The last eye-witness was wit. Dinkar, no doubt, a boy of only 12 years of age. His evidence, therefore, would require considerable caution and scrutiny before it could be accepted with safety. That does not however mean that the fact of his being a boy of 12 years makes by itself his evidence unreliable as Mr. Samant wanted us to hold. All that is necessary in connection with his evidence would be that his evidence should bo approached with caution. Mr. Samant pointed out to us that his statement was recorded at 8 a.m. the next morning. But there again there does not appear to be anything wrong nor does it mean that there was any delay in the recording of his statement. That is clear when we find that the police arrived in the village sometime at midnight. After their arrival they took down the statement of Saraswatibai and recorded, the panchanamas of the scene of the offence of the injuries suffered by Bhimrao and Ganpatrao and of the various articles that were lying scattered about including the empty cartridges both; in the house as well as outside. In these circumstances, it cannot be legitimately said that the statement of Dinkar was taken down after any delay.
17. We may note at this stage that except for wit. Dinkar none of the other eye-witnesses, was cross-examined by any of the accused. It was Dinkar alone who was cross examined, and that too by the 3rd accused only and it was to Dinkar only that for the first time the 3rd accused put his csse that they were shown to him at Jalna when they were in police custody. Dinkar denied that allegation. It is true that the accused were not represented by any advocate and, therefore, we would not naturally expect a close cross-examination of these witnesses out then we cannot help feeling that if their case genuinely was that they were shown at Jalna, then just as the 3rd accused cross-examined wit. Dinkar they could have put their case to the other witnesses as well. Another observation that we might make at this stage is that although they alleged before the Magistrate, who held the parade, that they had been shown, even at that stage they had not mentioned that they were shown at Jalna; there they had stated that they were shown in Thana Aurangabad. Then again the 3rd accused had then alleged that he was also shown at Pokhari. That allegation was not put even to Dinkar much less to any other witness. The allegation that they had been shown to the witnesses was never put to the Police officers also although that allegation, serious though it is, was directed against them. Barring, therefore, the allegation made by them before the Magistrate holding the parade and in their statements under Section 342 of the Criminal Procedure Code, there is nothing else to show that there was any justification in that allegation. We may observe that the allegation of the 3rd accused before the learned Magistrate, who held the parade, was that he was taken to Pokhari and shown to the witnesses. Before the learned Sessions Judge, however, all the accused alleged that the witnesses were brought to Jalna and it was there that they were shown to them. Now, if the allegation was that the police had brought the witnesses to Jalna, then that allegation ought to have been put both to the police officer as well as to the witnesses. The fact that that allegation was not put to any of the witnesses except Dinkar and that too in a somewhat modified form, and these witnesses were not given any opportunity to give any explanation as regards that allegation makes it impossible to attach any force to these allegations.
18. We might mention one more fact at this stage while we are still on the identification parade. Although Mr. Samant has not forcefully put before us, the fact remains that the parade was held on 16-6-1956, that is about four months after the date of the incident. There is, therefore, undoubtedly delay in holding the parade. The question, therefore, is whether that delay is such as would vitiate or take away the importance of the evidence as to the parade. As we have already pointed out, the accused were arrested in connection with this case, one on the 26th April and two on 31-5-1956. It is in evidence that the arrest of these accused in connection with this case came about as a result of the very same Circle Inspector investigating six other robbery cases which had taken place in another taluka and it was while he was investigating those cases that cartridges were found from the possession of the 3rd accused. It would seem from this evidence that it was after the finding of these cartridges from the house of the 3rd accused that the attention of the Circle Inspector came to be focussed upon the culprits in the present case. In view of these circumstances it cannot be said that there was any deliberate delay in the matter of the holding of the parade inasmuch as until 31-5-1956 accused Nos. 1 and 2 at any rate had not been arrested, and even the 3rd accused was arrested on 26-4-1956. Since, however, there is delay in the holding of the parade for reasons for which, it would appear, the Circle Inspector is not to be blamed, we have nonetheless to approach the evidence as to the identification parade with considerable caution. But as we have already pointed out, the only contention raised by the accused in connection with the parade was that no importance could be attached to that evidence by reason of the fact that they had been shown to the witnesses while they were in the police custody. We have already found upon the evidence before us and the facts of the case that that allegation has no force.
19. The learned Sessions Judge, in his judgment, relies, besides the evidence as to the identification parade on certain circumstantial evidence. There is, first, the evidence of Sk. Qamar, a cartman from Ranjnt, whose evidence was that all the three accused got down from the train at Ranjni Station and hired his cart and then he took them to a jungle at Nair which is about two miles from Pokhari. This evidence would indicate, at the most, association of the three accused and the fact of their being near about the village Pokhari on the day in question. But since the witness was not able to and did not give the exact date when his cart was hired by these accused, not much importance could bo attached to the fact of their coming to Ranjni and then going to Nair in this cart.
20. What is somewhat important is the fact of the 1st accused having sold on 16-4-1956 to Habib Khan some pieces of gold, which according to that witness, appeared to be broken pieces of a 'nath' and 'mangalsutra'. There is evidence that 'nath' and 'mangalsutras' were the properties looted that night from the house of Ganapatrao. This by itself, in our view, would not have constituted an important fact, for the pieces of gold that were sold to Habib Khan were not identified by any of the witnesses. But then the conduct of the 1st accused, in our opinion, was both unusual and extraordinary, for the 1st accused wanted to have a ring made of gold melted from these broken pieces of 'mangalsutra' and 'nath' and it was at his instance that Habib Khan got these pieces melted and a ring made thereof and it was that ring when so made that was sold at first by the 1st accused to Habib Khan and Habib Khan, in his turn, sold that ring to wit. Babulal again ai the instance of the 1st accused. In our opinion, if the sale effected by the 1st accused was a bona fide one, then the 1st accused need not have gone through the process of having the broktn pieces of 'nath' and 'mangalsutra' first melted and then converted into a ring and then have the ring sold. This evidence, in our view, shows that the 1st accused was in possession of a 'nath' and a 'mangaisutra' belonging to wit. Ganpatrao and he had broken pieces melted and made into a ring so that the ultimate purchaser would not be able to recognise the original ornaments.
21. The next circumstance relied upon by the learned Sessions Judge were the several judgments in other cases against these accused being Exs. P-22 to P-25 to establish that the accused had been convicted in those cases under Section 19-F of the Arms Act and under Section 380 of the Indian Penal Code on the charge of theft of a cart. There, in our opinion, Mr. Samant was on firm ground when he submitted that these judgments should not have been admitted by the learned Judge in evidence and that they were in any event entirely irrelevant. Wo agree with Mr. Samant and find that there is justification in his comment. There was no connection established between the gun in question in that case with the incident in question in this case before us and the same must be said also with regard to the cart which was the subject-matter of the charge of theft. In our view, therefore, these judgments ought not to have been admitted by the learned Judge as they were irrelevant much less should he have relied upon them as a circumstance against the accused.
22. The contention most strenuously urged by Mr. Samant was the omission of the prosecution to examine Godavaribai who, according to the evidence on record, was present at the time of the incident in question and who therefore would have been as important a witness as wit. Saraswatibai. There is no doubt that, if Godavaribai had been examined, she could have corroborated the evidence of the other eye-witnesses. It is also clear that no explanation was furnished as to why Godavaribai was not examined. Mr. Samant, in these circumstances, called upon us to draw an adverse inference under Section 114 of the Evidence Act and to hold that if Godavaribai had been examined by the prosecution, she would have given evidence adverse to the prosecution. For this submission, Mr. Samant has relied upon the decision in Habeeb Mohammad v. The State of Hyderabad reported in : 1SCR475 . Relying upon certain observations therein contained. Mr. Samant has contended that it was the duty of the prosecution to examine all material witnesses and that Godavaribai was undoubtedly a material witness, and that, since she has not been examined an adverse inference would arise against the prosecution case from the non-production of such an important witness.
23. The question, therefore, is whether it is the bounden duty of the prosecution to examine each and every witness who has knowledge of the incident in question and who is available. It has been said over and over again that the object of a criminal trial, as was observed by Jenkins C. J. In Ram Ranjan Roy v. Emperor : AIR1915Cal545 , is not to support at all costs a theory, but to investigate the offence and to determine the guilt or the innocence of an accused person. The duty of a Public Prosecutor, is also equally clear and that is to represent not the Police, but the State, and this duty he has to perform with fairness, without fear and with a full sense of responsibility attached to his offence. But the view expressed by Jenkins C. J. in this case that all available eye-witnesses especially in a capital case, even if brought in Court by the defence and although they give different accounts should be examined was not fully accepted by their Lordships of the Privy Council in the case reported in Stephen Seneveratne v. The King AIR 1936 PC 289. Their Lordships there expressed the view that it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events upon which the prosecution is essentially based and that the question whether a witness is material and ought to have been called depends upon the circumstances of each case. In Malak Khan v. King Emperor 48 Bom LR 132 : AIR 194S PC 16, an argument was advanced that two witnesses who saw the articles recovered should have been called by the prosecution, That contention was put in a twofold way (1) under Section 165 of the Criminal Procedure Code and (2) that the two witnesses were Crown witnesses and should have been called. Their Lordships disposed of the first contention on the ground that Section 165 of the Criminal Procedure Code did not apply to a case where articles were produced by an accused person. But, in dealing with the second part of the contention, Lord Porter while doubting whether such witnesses could be said to be Crown witnesses, stated at P. 137 (of Bom LR): (at pp. 19 and 20 of AIR) as follows :
'It is no doubt very important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desires to prove.
Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must judge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.'
24. Sir John Beaumont, who was a party to the judgment of Their Lordships of the Privy Council, has also taken a similar view in a Full Bench decision of this Court in Emperor v. Kasamalli Mirzalli 44 Bom LR 27 : AIR 1942 Bom 71. In this case, a certain witness was examined before the Committing Magistrate but the prosecution did not examine that witness at the trial presumably believing that the story that he narrated was false. Beaumont C. J., observed in this connection:
'In our opinion their (prosecution's) proper course in such a case was, not to call him themselves but to give his name to the defence, see that he was present in Court, and tell the defence, if they did not already know it, what he was prepared to say..... In our opinion the duty of the prosecution in criminal cases is clear. It must always be perfectly fair. It has been said over and over again that it is not the function of the Crown to prosecute the conviction of an innocent person. That is obvious. But the Crown is not bound to call before the Court a witness who, it believes, is not going to speak the truth.''
25. Mr. Samant's argument, however, is that the view expressed in Habeeb Mohammad's case (A), by Their Lordships of the Supreme Court is somewhat different from that taken in these cases, and that the view of the Supreme Court is clear that the prosecution is bound to examine all material witnesses who are available and are in a position to depose to facts upon which the prosecution is based. We have with some care gone into the report of the decision but we find that the proposition so widely put by Mr. Samant is not borne out by that decision. Since this decision is often quoted, we propose to go into a few details in order to clarify as to what exactly Their Lordships of the Supreme Court has laid down.
26. The facts before Their Lordships were that the appellant in that case and two others were charged with offences of murder, attempt to murder and arson in that the appellant, a Subedar of Warangal, went on 9-12-1947 to Gur-tur with a pose of police for the purpose of arresting certain bad characters. At Gurtur, it was said that he met 60 to 70 villagers who came forward with a view to make certain representations. The appellant, however, ordered the policemen to fire at them and as a result of the firing two died and several persons were injured. The Appellant, it was said, then, gave match boxes and directed the constables to set fire to the houses in the village. The consequence was that, as many as 191 houses, were destroyed by fire. What was somewhat important in that case was that, in the first information report, lodged on 29-1-1949, it was said that. amongst other officers present at the time of the firing, there was one Biabani, Deputy Commissioner, District Police, Warangal. In a cha-lan prepared subsequently, the whole burden for the crimes committed on 9-12-1947 was sought to be thrown upon the appellant, in spite of the fact that, in the documents prepared and accompanying the first information report, the burden had been thrown upon Biabani. The prosecution had also mentioned the name of Biabani in the list of prosecution witnesses but, for some unexplained reason, did not examine him during the trial and no explanation was given for withdrawing him. On 24-3-1950, the appellant made an application before the Special Judge, who was dealing with this case, that Biabani and certain other officers were present at the time of firing but Biabani was not produced as a witness. The learned Special Judge making his order upon this application observed :
'And in this case the said Biabani is not challaned only because he is a police Officer. This should not be construed in this sense that as the police left Biabani scot-free, because they favoured him, so also the Court should leave. Habeeb Mohamed. A strange logic that 'you left one, therefore I leave the other' will continue.'
Their Lordships of the Supreme Court stated that it was difficult to support these observations made by the learned Special Judge behind the back of Biabani and that such observations could only be made after giving an opportunity to Biabani to explain his conduct. Before the High Court of Hyderabad, the learned Counsel for the appellant also had stressed the point that the police ought to have produced Biabani as a witness to prove the fact that it was the appellant who had ordered the firing or in the alternative the Court should have summoned him as a Court witness. This argument was disposed of by a reference to the decision of tho Privy Council in Adel Moham-mad v. Attorney-General of Palestine AIR 1945 PC 42, where it has been said that there was no obligation on the prosecution to tender witnesses whose names were upon the information but who were not called to give evidence by the prosecution for cross-examination by the defence and that the prosecutor has a discretion as to what witnesses should be called for the prosecution and the Court will not interfere with the exercise of that discretion unless it can be shown that the prosecutor had been influenced by some oblique motive. Dealing with this decision Mahajan C. J., observes that 'the point considered in that case was different from the one before them and held that it was difficult to hold on the record before them that there was no oblique motive of the prosecution in not producing Biabani as a witness. In their Lordships' opinion, it was clear that the object of not producing Biabani was to shield him, who possibly might have been a co-accused in the case, and also to shield other police officers and men who formed the raiding party. What is important for our purpose is that their Lordships laid down in this case that the true rule on the question as to the duty of the prosecution in producing the witnesses was the one laid down by their Lordships of the Privy Council in AIR 1936 PC 289. The observations of the Privy Council quoted with approval by Mahajan, C. J., were (at p. 299) :
'It is said that the state of things above described arose because of a supposed obligation on tho prosecution to call every available witness on the principle laid down in such a case as : AIR1915Cal545 , to the effect, that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of 'defence witnesses'. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumtances of each case. Still less do they desire to discourage the utmost csndour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective ofconsiderations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross examination. Witnesses essential to the unfolding of the narrative on which the prosecution, is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.'
It is clear from the report of the case of Habeeb Mohammad (A), that the rule laid down in the case oi Stephen Senivaratne v. The King (C), by the Privy Council had the approval of Their Lordships of the Supreme Court i3nd, therefore, the rule to be found in the case of Stephen Senivaratne (C), still holds good. in our view, therefore, there is no warrant for the wide proposition submitted before us by Mr. Samant presumably basing that proposition upon the observations of Jenkins C. J., which, as we have already pointed out, did not find complete approval from the Privy Council. in our opinion, considering the facts before us, there is no analogy between the facts in the case before the Supreme Court and the case before us. From the facts before Their Lordships of the Supreme Court it was clear and it was so held that Bia-bani, though a material witness, was withheld by the prosecution with an oblique motive, that motive being to shield Biabani as also other police officers. No such motive could be alleged against the prosecution in this case nor did Mr. Samant venture to make such a suggestion in respect of Godavaribai. it seems to us that Godavaribai was probably not examined by the prosecution because as many as four witnesses from, that very house had been examined and the Public Prosecutor must have thought that her evidence would merely be a repetition of what the other eye-witnesses had already stated. In our view, the proposition submitted to us by Mr. Samant would be contrary to the observations made by the Privy Council by which they declined to approve the idea that the prosecution must call witnesses irrespective of considerations of number and reliability. This disposes of the last contention of Mr. Samant.
27. in the circumstances, we find that there was sufficient evidence before the learned Sessions Judge to convict the appellants of the offence of robbery. We might make one more observation before we finally part with this case. From the charge, as framed by the learned Sessions Judge, it is clear that Section 34 of the Indian Penal Code has not been mentioned. The evidence makes it obvious that accused No. 1 was all throughout outside the house of wit. Ganpatrao. It is no doubt true, as the evidence of Bhujangrao and other witneses show, that he was firing with his gun while standing as a guard outside Ganpatrao's house. But then there is no evidence that he either entered that house or did any act of robbery. In these circumstances, it would have been better if the learned Judge, so far as the 1st accused is concerned, had invoked the aid of Section 34 in the charge that he framed. But since there was a substantive charge against all the accused including accused No. l under Section 302, we find no difficulty in modifying the order of conviction passed by the learned Sessions Judge so far as the 1st accused is concerned, and we hold that the 1st accused is guilty of the offence under Section 392 read with Section 34. Except for this modification, we confirm the order of conviction and the sentences passed by the learned Sessions Judge. In the view we take, the appeals of the three appellants fail and are therefore dismissed.
28. Appeals dismissed.