1. This is an appeal by accused 1 to 5 against their conviction under Section 395, I. P. C., and the sentences passed upon them. The prosecution story briefly is that on the evening of 2-6-1955 at about 2-30 p. m., witness Vithal was waiting for a bus at the bus-stand near Prabhadevi corner. He had in his pocket Rs. 20/-. Accused 1 then pulled Vithal out of the queue and started beating him. He asked Vithal whether he had gone there to murder Baburao and Who had sent him for that purpose. He was then dragged to an open 'maidan' behind the Century Mills.
The other four accused also joined accused 1 and questioned Vithal whether he had gone there to murder Baburao. Vithal was given a further beating in the 'maidan' and thereafter he was taken to a passage on the first floor of the chawl known as Rawate's Chawl. ' There all the five accused beat him. He was stripped of all his clothes, which were taken away by the accused.
Thereafter he was allowed to go. Vithal then Went to his father's confectionary factory, which is also situated in that locality. There he met two factory servants, witnesses George and Bhat. He asked George for some clothes. George gave him a shirt and a pant. Vithal put on these clothes and then accompanied by George and two other persons. Dattaram and Vasant, he went to the residence of accused I in Champa Wadi.
Accused 1 told them that the boy who had gone to murder him, had been stripped of his clothes, and sent away. Thereafter they returned to the factory. Vithal went to his house and then accompanied by his paternal uncle, witness Kalekar, he went to Dadar Police Station. From there he was sent to the K.E.M. Hospital. Dr. Jhaveri, who examined him, found that he hada contusion on the right side check and an abrasion in the Sacro ilise region and that he was complaining of pain in the right elbow.
After Vithal returned from the hospital, his statement was recorded and thereafter the investigation of the offence commenced. Accused 1 to4 were arrested on the same night, while accused 5 was arrested on 7th June. Thereafter they were tent up for trial on the charge of committing dacoity. The case was tried by a jury, who returned a unanimous verdict of guilty against the accused.
The learned Additional Sessions Judge, Greater Bombay, agreed with the verdict of the jury in regard to accused 1. Although the learned Judge was of the opinion that the evidence against accused 2 to 5 did not appear to be sufficient, he did not consider that the Jury's verdict was perverse. He therefore accepted the Jury's verdict and convicted all the accused under Section 395, I. P. C. and sentenced accused 1 to 5 years' rigorous imprisonment and the remaining; accused to 3 years' rigorous imprisonment each.
2. As the accused were tried by a jury, it is not open to us to go into the evidence unless it has been shown that the learned Judge's charge to the Jury contains any misdirections. The prosecution story in this case is that Vithal had been robbed of his clothes by the accused. Before the jury could hold the accused guilty under Section 305, I. P. C., it was therefore necessary for the Jury to find that the accused had stripped Vithal of all his clothes as stated by him.
Towards the end of paragraph IS of his charge to the Jury, the learned Judge stated that the prosecution wanted to corroborate the version given by Vithal by the evidence of George and Bhat regarding the fact that he had gone to them naked and borrowed the clothes. George in his Evidence has nowhere stated that when Vithal went to him, he was naked. He was questioned on this point and he has stated that he did not notice whether Vithal was wearing any clothes, then.
George's evidence does not therefore corroborate Vithal's statement that he had been deprived of all his clothes by the accused. Bhat has also made different statements. In his examina-tion-in-chief he stated that he had been told by George at that time that Vithal had fallen down somewhere and wanted to change his clothes. At the end of his evidence, in reply to a question by Court, he has stated that after Vithal had put on the clothes given to him by George, he stated that his clothes and money had all been removed.
This is inconsistent with his earlier statement that Vithal wanted change of clothes. The learned Judge's statement to the Jury that Vithal's story about the removal of his clothes was corroborated by George and Bhat is therefore not correct.
There was therefore a misdirection on a material point; for, it is possible that if the Jury had been told that George's evidence did not corroborate Vithal's statement that he had gone to him naked and that he had made different statements on this point, they might not have convicted the accused of the offence of dacoity. It is consequently necessary for us to go into the evidence in order to decide whether the jury's verdict is correct.
3. I might also mention that there are other statements in the learned Judge's Charge to theJury which are not quite accurate. The evidence of two witnesses, Tukaram Mhatre and Eknath Velankar, given in the Committal Court has been brought on record under Section 288, C. P. C. In paragraph 14 of his Charge, the learned Judge observed:
'The prosecution intended these witnesses to say that on the night in question they had seen Vithal being dragged by accused 1, that accused 1 was listing him and that later on they saw Vithal naked. Unfortunately these two witnesses have not only not deposed as expected by the prosecution, but they have further gone the length of saying that they were arrested, made to say under pressure whatever they had stated in the Committal Court'.
4. The learned Judge did not thereafter tell the Jury what the evidence given by these witnesses in the Committal Court was and in what respect it differed from that given by them in the Sessions Court. The above observations of the learned Judge were therefore likely to convey an impression to the jury that these witnesses had stated in the committing Magistrate's Court that they had seen Vithal being dragged and given, fist-blows by accused 1 and that later on they had seen Vithal naked.
This, however, is not correct; for even in the Committing Magistrate's Court Tukaram had not implicated accused 1. In fact he then stated that he did not know any of the accused. All that he then stated was that he had seen one man being given fist-blows by another man. He did not say who those two men were.
The learned Judge's observation that in the Sessions Court Tukaram and Eknath had gone to the length of saying that whatever they had stated in the Committal Court had been stated by them under police pressure is again not correct. No such statement has been made by Tukaram. On the other hand, in the Sessions Court he has stated that the statements made by him in the Committing Magistrate's Court were correct.
5. In paragraph 17 the learned Judge has stated that after being beaten, Vithal made an attempt to see whether he could get back his money. Vithal has no doubt stated that he George and two other persons had gone to the residence of accused 1, but he has not stated that they had gone there for the purpose of taking back his money.
On the other hand Bhat has stated that he and George had asked Vasant and Dattaram to go and inquire why Vithal had been beaten.
6. Some of the questions put by the learned Judge to accused 1 were also not quite proper. One of the questions was.
'Q.-- The prosecution will argue in view of the claim of the complainant that he knew you by name and face, that there is no possibility of mistaking your identity and that he had a longer opportunity on that night of noting your features from the time he was accosted on the Bus Stand till he was relieved of his dress and cash. What have you to say?'
While another question was:
'Q.: The prosecution will suggest that the complainant had no motive or reason to involve you falsely and therefore the testimony of the complainant would deserve to be accepted. What have you to say about it '
Under Section 342, Crl. P. C, questions are to be put to the accused in order to enable him to explain the circumstances appearing in the evidence against him. The material evidence againsthim should therefore be brought to his notice In order to enable him to give an explanation, if he chooses to do so. It is, however, not right to question an accused person and ask him what he has to say in regard to arguments which the prosecution might advance after, all the evidence has been recorded.
7. Coming to the evidence, the learned Assistant Government Pleader has frankly conceded that the evidence against accused 2 to 5 is very weak. The only evidence against them is that of Vithal.
Vithal has however admitted that he did not know these accused previously. He has also admitted that it was dark both in the 'maidan' and in the chawl where he was beaten. His statement that he had been beaten by all the five accused does not also appear to be correct; for, the medical evidence shows that apart from his complaint of pain in the right elbow he had only one contusion and one abrasion. No reliance can, therefore, be placed on Vithal's identification of these accused.
8. Accordingly we set aside the convictions of accused 2 to 5 and the sentences passed upon them and acquit them of the offence with which they were charged.
9. The case is different so far as accused 1 is concerned. Vithal has stated that he had been beaten and robbed of his clothes containing Rs. 20-9-0 on that evening. The medical evidence also shows that he had received a beating. Vithal's evidence that he had teen robbed of his clothes and money is however not corroborated, by any reliable evidence.
As I have already pointed' out, George does not say that when Vithal went to him he was not wearing any clothes. In fact, he has stated that Vithal only complained to him that he had been beaten. Bhat has made different statements. If his statement that George had then told him that Vithal had a fall and wanted a change of clothes be true, then it would falsify Vithal's story that he had been, deprived of all his clothes. Eknath has stated in the Committing Magistrate's Court that the boy who was being beaten by accused 1 was seen by -him naked after some time. But for the reasons given by the learned Judge in his Charge to the Jury, no reliance can be placed on Eknath's evidence. The evidence as regards the amount of money which Vithal was then carrying is also discrepant.
Vithal has stated that he had Rs. 20-9-0.George has on the other hand stated that the amount which Vithal had taken from the factory was about Rs. 30 while Bhat has mentioned the amount as being Rs. 15/-. Vithal has also exaggerated the story; for, as I have already pointed out, his evidence that he had been beaten by all the five accused, does not appear to be consistent with the medical evidence.
In view of these facts, we do not think thatwe can hold on Vithal's uncorroborated evidence alone that he had been robbed of his clothes and money on that night.
10. There can, however, be no doubt that Vithal had been beaten. On this point his evidence is corroborated by that of Dr. Jhaveri who had examined him about 2 or 3 hours later on the same night. The next question to be considered is whether the person who assaulted Vithal was accused 1. Vithal's evidence shows that although he did not personally know accused 1 previously he had seen him in the locality and that he also knew his name to be Gulbabu. Hehowever gave his description and also mentioned the place where he was residing. He also mentioned his name as Baburao.
Eknath in his evidence in the Committing Magistrate's Court had stated that accused 1 is known as Baburao. Accused 1 was also arrested on the same night on information given by Vithal. Vithal has stated that it was this accused who had pulled him out of the queue and then dragged him to the 'maidan' and from there to the Chawl where he was beaten.
As Vithal had seen this accused previously and as there were lights near the bus-stand, it was possible for Vithal to identify this accused. We therefore believe Vithal's evidence that accused 1 was one of his assailants. Accused 1 is consequently guilty of the offence punishable under section 323, I. P. C.
11. We, therefore, alter the conviction of accused 1 from one under Section 395 to that under Section 323, I. P. C. He has two previous convictions for offences of assault, one under Section 325 read with Section 34, I. P. C., and another under Section 326 read with Section 34, I. P. C. Having regard to these previous convictions, we sentence accused 1 to one year's rigorous imprisonment.
12. Bail bonds of accused 2, 4 and 5 are cancelled.
13. Conviction altered.