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Bhola Nath and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1939All567
AppellantBhola Nath and ors.
RespondentEmperor
Excerpt:
- - i have gone through the entire statement made by the approver in the court of the committing magistrate as well as the statement which he has made in the court of session. after a consideration of the statements made by sundar singh in the court of the committing magistrate as well as the statement made in the court of session i find myself in agreement with the view expressed by the learned sessions judge to the effect that sundar singh has deliberately made statements before the court of session with a view to help the accused persons. after a consideration of the matter, i feel quite satisfied that sandar singh, approver, made statements favourable to the accused not under stress of any cross-examination but deliberately with a view to help some of the accused. he says that the.....orderrachhpal singh, j.1. these are four connected revision applications arising out of the same judgment and can therefore be conveniently disposed of together. bola nath, bakshi ram, salig ram and debi das, applicants, were tried in the court of the learned assistant sessions judge of dehra dun along with several other persons. the accused persons were charged with having committed offences contrary to sections 408, 417, 120-b, 467 and 471, i.p.c. eleven accused persons were sent up for trial before the court of the learned assistant sessions judge. two of them were acquitted by him and he found that the case was proved against the remaining nine accused who were convicted and sentenced to various terms of imprisonment. these convicted persons preferred appeals against their convictions.....
Judgment:
ORDER

Rachhpal Singh, J.

1. These are four connected revision applications arising out of the same judgment and can therefore be conveniently disposed of together. Bola Nath, Bakshi Ram, Salig Ram and Debi Das, applicants, were tried in the Court of the learned Assistant Sessions Judge of Dehra Dun along with several other persons. The accused persons were charged with having committed offences contrary to Sections 408, 417, 120-B, 467 and 471, I.P.C. Eleven accused persons were sent up for trial before the Court of the learned Assistant Sessions Judge. Two of them were acquitted by him and he found that the case was proved against the remaining nine accused who were convicted and sentenced to various terms of imprisonment. These convicted persons preferred appeals against their convictions and sentences which were heard by the learned Sessions Judge of Saharanpur. He accepted the appeals of Narendra Nath and Gur Dat Singh. In the case of Sri Kishen he confirmed his conviction but reduced the sentence of imprisonment to the term for which he had already been in jail. The appeals of the other accused were dismissed. Four of them named above have preferred revision implications against the order passed by the learned Sessions Judge. Mohan Lai has not preferred an application for revision. One Ram Kishen Singh had filed a revision which was dismissed by a learned Judge of this Court. The prosecution story which has been believed by the Courts below can very briefly be stated as follows.

2. In the month of August 1935, Babu Ram Chandra Singh, Sub-Inspector, District Intelligence Staff, was posted at Hardwar. It was alleged that he received some information on 23rd August that some people at Hardwar were in the habit of forging used railway tickets so that they might be used strain. These tickets were forged and then passed on to various persons. According to the information, one Mohan Lai, who resided in Hardwar, used to receive used railway tickets by post from various persons residing in other stations. On the receipt of this information, the Sub-Inspector named above paid a visit to the Post Office at Hardwar in order to find out whether any such correspondence could be detected. On 24th August 1935 the Sub-Inspector paid a second visit to the Hard-war Post Office. It is said that this time he was successful and that he found in the Post Office one letter addressed to 'Diwan Chand, c/o Mohan Lal.' The letter was opened in the presence of the Post Master and some other persons and the prosecution case was that inside it five used railway tickets were found. The Sub-Inspector got these tickets initialled by the Post Master and then they were put back in the letter which was closed and was sent in ordinary course to the addressee thereof. Mr. Earn Chandra Singh received further information that Mohan Lai had received the used tickets referred to above and that some persons would be using those tickets at the railway station of Hardwar. It is alleged that in the evening of 24th August 1935 the Sub-Inspector proceeded to the railway station of Hardwar and there arrested Mohan Lai and Gur Bachan Singh who were sitting inside a third class compartment. When their persons were searched one genuine ticket was found in the possession of each of them and several used and forged tickets from the possession of Mohan Lal.

3. On the same date after effecting the arrest of these two persons the Sub-Inspector went to another part of Hardwar known as Har Ki Pairi. The prosecution case is that it had been arranged by the Sub-Inspector with the help of Harish Chandra and others to make an attempt to arrest the persons who were in the habit of selling used tickets. That day the Sub-Inspector had approached Mr. Murari Lal, a Deputy Magistrate, and had made an application before him showing what his intention was and the result was that a currency note of the value of Rs. 5'was initialled by the Deputy Magistrate Mt. Murari Lal and this the Sub-Inspector kept with him. In the evening the Sub-Inspector along with certain other persons was near Har Ki Pairi. The note initialled by. the Deputy Magistrate had been given by the Sub-Inspector to Babu Harish Chandra and it had been arranged between the police party that on a given signal the police party would come forward and arrest person's who might be found attempting to sell the used tickets. It is alleged that Harish Chandra saw Sunder Singh, approver, who was accompanied by Debi Das and Sunder Singh was asked to sell a ticket. The prosecution case is that Sunder Singh in his turn asked Debi Das to hand over one ticket to Harish Chandra on payment of Rs. 2. Harish Chandra handed over that initialled currency note to Sunder Singh. He had no change. He asked Debi Das whether he had some change. Debi Das replied that be had none but that he himself had a note of the value of Rs. 5 and that he would go and get it changed so that the balance due to Harish Chandra might be paid. Thereupon he proceeded to get the note changed. In the meantime at the given signal the police rushed forward and arrested Sunder Singh. Immediately afterwards Debi Das, who had gone to change the Rs. 5 note, returned and he was also arrested. One used railway ticket, Ex. 3 is said to have been found on the person of Debi Das at the time of the search which was made. After this the party of the Sub-Inspector went to the shop of Mohan Lai. There a search was made but with the exception of two envelopes and a piece of paper, Ex. BB nothing else was recovered. When Sunder Singh had been apprehended shortly before one key which was in his possession had been taken over by the Sub-Inspector and when his party arrived in the building in which Sunder Singh's quarters were, that key was handed over to him and then at a search a number of articles were recovered. They included 22 used tickets, 13 used bits of sand paper, some rubber erasers, sticking matter and some post cards (Exs. 49 to 70) and some unused sand papers were also found.

4. On the following day, that is to say, on 25th August 1935, the Sub-Inspector recorded the statement of Sundar Singh. On 29th Sundar Singh was placed before Mr. Murari Lal, Deputy Magistrate, and there he made a long statement under Section 164, Criminal P.C. After that a number of arrests were made on the information received from the approver and from other sources. After a protracted investigation the case was ultimately committed to the Court of Session. On behalf of the accused persons there was a total denial of the charges made against them. The plea was that the whole case was fabricated and that Sundar Singh had been made to implicate innocent persons in his statement. The questions which had to be considered by the Courts below were whether or not there was a conspiracy between the various accused persons and whether it was proved that the accused persons were the members of the conspiracy. Further the Courts had to decide whether the accused persons had been guilty of other offences with which they were charged in addition to the charge of conspiracy. Both the Courts below have arrived at the conclusion that the evidence produced in the case proved the conspiracy charge. They have also found that the accused persons are also guilty of the other offences with which they have been charged. The question which I have to decide is whether the four applicants have been rightly convicted.

5. The principal witness in the case was of course Sundar Singh, approver. I have already stated that immediately after his arrest he had made a statement to the Sub-Inspector and that on 29th August he was produced before Mr. Murari Lal where he made a statement. After that in ordinary course the approver made a statement before the committing Magistrate which took several days. He started making his statement on 27th February 1936. In the Court of Session he was examined some time in the month of September 1936. It appears that for some reasons the approver made statements from which it appeared to the Court that he was making deliberately false statements with a view to help the accused persons. I have gone through the entire statement made by the approver in the Court of the committing Magistrate as well as the statement which he has made in the Court of Session. There cannot be the least doubt that the statements made by the approver on several points before the Court of Session are favourable to some of the accused persons and cannot possibly be reconciled with the statements which he had made on those very points before the committing Magistrate. Now, two things are possible. One is that the approver when he was examined before the committing Magistrate made false statements and that by the time when he appeared in the Court of Session he repented and therefore came out with a true story. The other possibility is that the approver may have been induced owing to pressure brought upon him by the accused persons or by some other persons to make statements on certain points which would go to damage the prosecution case. Both the Courts below have come to the conclusion that the approver has been induced by the defence to make statements favourable to them. In this connexion I would point out to the remarks made by the learned Sessions Judge in his appellate judgment at pages 19 and 20 which are as follows:

It seems to me that after being released on bail on 2nd November 1935, Sundar Singh on certain occasions played into the hands of the defence and therefore agreed to make some assertions favour, able to certain accused persons. A number of documents were filed by the defence and proved that they could never have fallen into the hands of the accused persons unless the approver was agreeable to rendering them some assistance. At the same time I must give it as my unhesitating opinion that even in the Sessions Court Sundar Singh did implicate every one of the appellants. The learned Judge of the Court below was however fully justified in admitting his previous statement under Section 288, Criminal P.C.

6. At another place the learned Judge records the following opinion about the approver:

After carefully comparing the various statements made by the man my conclusion is that he has in the main told the truth, especially before the Committing Magistrate.

7. It appears that the prosecution decided to prosecute Sundar Singh on the ground that according to the case set up by them he had not complied with the terms of his pardon. The Public Prosecutor has expressed his view about the evidence of Sundar Singh in the following terms:

I am of opinion that the said Sundar Singh in his statement before the Sessions Court willingly concealed essential facts, gave false statements in order to shield the accused, introduced material discrepancies in his statement with the intent of benefiting the accused and modified his statements in the lower Court in order to damage the charge of conspiracy.

8. Learned Counsel appearing for the Grown has brought to my notice the statement of Ratan Chand, a witness examined by Salig Ram, accused. This witness is a half brother of Salig Ram. In his deposition this witness has stated:

I met Sundar Singh again in September 1936. He said he was then giving evidence and there was still time to save Salig Ram. I said it was his brother-in-law who was owed the money and why he (Sundar Singh) worry, he said his brother-in-law was pressing him to get the money and had sent him a letter. I asked him for the letter and he showed it to me. I have brought it as he gave it to me and this is Ex. 549. Salig Ram has never been a druggist.

9. This post-card, Ex. 549, which the witness produced before the Sessions Court appears to have been sent from Delhi to Sundar Singh, approver. He was at that time giving statement before the Court of Session at Dehra Dun. The post mark is of 26th September 1936. The writer of this letter is brother-in-law of Sundar Singh, approver, and there is a suggestion in this very curious letter that an attempt should be made to get money from Salig Ram. After a consideration of the statements made by Sundar Singh in the Court of the committing Magistrate as well as the statement made in the Court of Session I find myself in agreement with the view expressed by the learned Sessions Judge to the effect that Sundar Singh has deliberately made statements before the Court of Session with a view to help the accused persons. No other conclusion is possible having regard to the nature of the statements made by him. I will refer to one or two instances from the statements made by Sundar Singh on which there has been difference. We have one letter produced in the case which is Ex. 126. The prosecution case was that the letter had been recovered from the possession of Sundar Singh on 9th November 1935 at Amritsar. According to the prosecution, search witnesses were present when this letter was recovered and the search list was attested by some of the prosecution witnesses.

10. In the Court of Session Sundar Singh made a statement to the effect that this letter Ex. 126 had been shown to him by the Sub-Inspector while he was in the police look-up at Roorkee. If the statement) of Sundar Singh could be true, then the necessary conclusion would be that the whole prosecution case about the recovery of letter Ex. 126 from the house of Sundar Singh at Amritsar on 9th November 1935 must be totally false. We have however the statement of the approver which he made under Section 164, Criminal P.C. In that statement he stated that he had returned all the letters of Bhola Nath to him but that one letter of Bhola Nath was still with him lying at Amritsar. Now, this makes it clear that when Sundar Singh made his first statement he admitted having in his possession a letter written by Bhola Nath to him. He further admitted that this letter was lying at Amritsar. It is very curious that after making the statement he should make a statement which is at variance with the statement made by him at first. Now, the question which naturally arises is why should Sundar Singh make a statement which would go to show that his first statement on the point was not true. When he was examined as a witness in the Court of the committing Magistrate it does not appear that any attempt was made to prove that this letter Ex. 126 had been shown to him by the Sub-Inspector. I have not the least doubt in my mind that Sundar Singh was making a statement in the Court of Session on this point solely with a view to discredit his own sworn testimony so that it may be of some help to some accused in the case. Ex. 401 is a letter which, according to the prosecution, was written by Sundar Singh, approver, and which was to be sent to Baksbi Ram, accused.

11. It is said that this letter was found in possession of Mohan Lal, one of the accused persons in the case, and it was recovered at the time when he was arrested at the railway station of Hardwar on 24th August 1935. The Sub-Inspector makes a mention of this letter in the first report which he recorded after arresting various persons on 24th August 1935. So that would go to prove beyond any doubt that this letter was re. covered from the possession of Mohan Lai on 24th August 1935. In the Court of Session it would appear that in order to throw doubt about the genuineness of this letter he said that when he was being taken to the look-up the Sub-Inspector showed him this letter and he was asked to sign it. Again, it may be stated that this statement appears to have been made in order to help some of the accused. It is in evidence that Sundar Singh, approver, and Debi Das, accused, were in the service of Bakshi Ram, accused, for some time. It is very possible that the approver made the statement with a view to help very likely Bakshi Ram. After a consideration of the matter, I feel quite satisfied that Sandar Singh, approver, made statements favourable to the accused not under stress of any cross-examination but deliberately with a view to help some of the accused.

12. Learned Counsel appearing for the defence strenuously argued that the statement of Sundar Singh, approver, should be rejected from consideration altogether. He rightly pointed out that the Courts adopting a rule, which I may style a rule of safety, are generally not inclined to attach importance to the statement of an approver unless it is corroborated by independent evidence produced in the case. In this case learned Counsel for the applicants points out that the position of the approver is much weaker. He says that the prosecution is also agreed that the approver is not a reliable witness, because the prosecution itself has made an application to the Court for the prosecution of the approver. I think that in the circumstances of the case to which a reference has been made above, it was the duty of the Courts below to scrutinize the evidence of the approver with the greatest possible care, because the approver, according to the prosecution itself, was not a reliable man inasmuch as admittedly according to the prosecution case he made statements which were not accepted by the prosecution as true. The question as to whether or not the statement of the approver should be taken into consideration or should be totally rejected is one which will depend on the circumstances of each, case. Beyond reiterating the law on the subject, which is to the effect that the statement of the approver must be very thoroughly scrutinized and should not be accepted unless it is corroborated by other independent evidence in the case, no hard and fast rule can be enunciated which will govern all cases. The question whether the approver is reliable or not will fall for decision in each particular case and the decision on the point will depend on the circum. stances of that case. There may be cases in which an approver has made positively false statements in respect of a particular point and yet the evidence produced in a case might go to prove beyond any doubt that in other respects the evidence of the approver was trustworthy and was fully corroborated by the very best evidence produced. It would be wrong in that case to suggest that because the approver has made a wrong statement on a particular point so his whole evidence should be rejected.

13. Learned Counsel for the defence argued that, so far as the offence of forgery with which the accused persons were charged was concerned, according to the prosecution case, as understood by the defence, the accused persons had committed an offence under Section 468, I.P.C., and, therefore, in view of the provisions of Section 337, Criminal P.C., the approver could not have been granted a pardon. It is said that the offence of forgery which the accused persons according to the prosecution evidence may have committed was not one which was triable exclusively by the High Court or the Court of Session. I find myself unable to agree with this contention. Section 337, Criminal P.C., enacts that:

In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years or any offence punishable under Section 211, I.P.C., with imprisonment which may extend to seven years, or any offence under any of the following Sections of the Indian Penal Code, namely Sections 216-A, 369, 401, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the First Class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

14. It appears to me that all that the officer who can grant pardon under the provisions of this Section has to see is whether on the information at his disposal there is a prima facie case against the person to whom the pardon is going to be tendered for an offence which is exclusively triable by a Court of Session. If that is so he is competent to grant a pardon. In my opinion lit is no part of the duty of the Magistrate to take upon himself the task of making a thorough and searching inquiry in order to find out whether the offence which has been committed by the person is one which will be triable by the Court of Session or by a Magistrate. There may be cases in which at the time such a person is produced before a Magistrate there may be, according to the information of the Magistrate, a good case which is exclusively triable by the Court of Session. It may eventually how-over turn out after the ease has been tried in the Court of Session that on the proved facts the offence committed was not one which was exclusively triable by a Court of Session but could have been tried by a Magistrate. An ordinary instance of that may be given here. A man is charged with an offence under Section 302. The investigating authority goes to a Magistrate and says that one of the accused persons was prepared to tell the truth in respect of the offence if he was given a pardon. The Magistrate's duty would be to grant a pardon and then to examine the person put before him. When the trial takes place in the Court of Session it may be found that the offence committed by the accused persons was one which came within the purview of Section 323, I.P.C. It will be wrong in a case of this description to say that the pardon tendered to the approver was incompetent and therefore the statement of the approver should not be taken into consideration. If the interpretation put by the defence side on Section 337 is accepted, then the result would be that it will be difficult for a Magistrate before whom a person is produced to make a statement to decide on the spur of the moment whether a pardon should or should not be given. I have therefore no hesitation in holding that as soon as the Magistrate is informed that the offence is one which according to the investigating authority is exclusively triable by the Court of Session, then his duty is to record the statement after granting pardon to the person put before him.

15. The next important question for consideration is whether the evidence produced in the case establishes a charge of conspiracy against the various applicants. On this question the argument of learned Counsel appearing for the defence was that the statement of the approver should be rejected as untrustworthy. Learned Counsel further argued that the statement of the handwriting expert examined in the case should also be not relied upon, because there was no corroboration of the handwriting expert's statement. This argument assumed that the statement of the approver was not reliable evidence. As I have already stated, both the Courts below have held that the evidence of the approver is reliable. As I have already stated, I have carefully gone through the statement made by the approver before the learned Assistant Sessions Judge as well as the statement made by him before the committing Magistrate, and I have not the least doubt in my mind that the approver has deliberately made incorrect and false statements in the Court of Session with a view to help some of his friends among the accused persons. The learned Sessions Judge admitted in evidence the statement of the approver made by him before the committing Magistrate under the provisions of Section 288, Criminal P.C. That Section enacts that:

The evidence of a witness duly recorded in the presence of the accused under Ch. 18 may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872.

16. The learned Assistant Sessions Judge, in my opinion, was competent to admit in evidence the statement made by the approver in the Court of the committing Magistrate and to treat it as evidence. It was also open to him under the provisions of law to hold that the statement made by the approver before the Magistrate was a correct statement and that it should be relied upon in spite of the statements which the approver introduced before him in the Court of Session. The learned Judge had to be very careful in the matter of scrutinizing the evidence of the approver in these circumstances. But I am not prepared to say that in a case like this he was not justified in placing reliance on the statement made by the approver in the Court of the committing Magistrate. I have given my anxious consideration to the evidence of the approver and after a deep and careful consideration I have arrived at the conclusion that the view taken by the learned Sessions Judge as well as the trial Court about the statements of the approver is correct. I am thoroughly satisfied that the evidence of the approver given in the Court of the committing, Magistrate in the main was true and I am further satisfied that his statement before the Court of the Assistant Sessions Judge was true with this reservation that the approver deliberately introduced false statements with a view to help the accused persons. It is impossible to believe that the approver could possibly have concocted a story of this type which he has stated before the Courts. It is very easy to see that the statements made by the approver in the Court of Session which might go to throw doubt on his evidence were made deliberately with the sole object of introducing complications in the case and with a view to help the defence side. Some of the attempts made by the approver are nothing also but clumsy inventions introduced with a view to show that he is not telling the truth. I have referred to some such statements made by the approver above. He stated before the committing Magistrate that one letter addressed to him by Bhola Nath, accused, was to be found in his place at Amritsar. When the approver is examined in the Court of Session he comes out with a ridiculous story that this letter had been shown to him by the police just M. few days after his arrest and long before the date on which the letter was actually found at Amritsar.

17. Another statement to which a reference might be made is about Debi Das, accused. The approver made a detailed statement as to his connexion with Debi Das, accused, as to what he and Debi Das accused had done at Hardwar together and as to how they were arrested. Later on, in order to help this accused, he came out with another ridiculous statement to the effect that he had not seen Debi Das for 20 years. The evidence of the approver is supported by a large number of letters produced in the case. If, as argued by learned Counsel appearing for the defence, the statement of the approver is ruled out, then certainly it can be said that no case had been made out against any of the accused persons. But for the reasons given above I am not prepared to rule out the statement made by the approver. Both the Courts below have believed the evidence of the approver as regards the existence of the conspiracy and after hearing both sides 11 find myself unable to come to a different conclusion. The learned Sessions Judge in appeal has referred to a large number of letters written by the various accused in which there is a demand for 'pills and purias (packets)'. The statement of the approver is that these demands refer to used railway tickets and these words were code words. A perusal of some of those letters which have been read over to me convinces me that the statement of the approver on this point is perfectly correct and there does not appear to be any reason to doubt it. I might make a reference to only a few of them.

18. Ex. 53 is a letter sent by one Ram Kishen to Sundar Singh, approver, on 30/31st July 1935. In this he asked that dawaii (medicine) should be sent without fail on Friday so that he could get it on Saturday, 3rd August 1935. He further informed the approver that his case was to be heard on 3rd August 1935. In the end he says: 'Do without fail send the dawaii for myself, my family and for Panditji.' Then Ex. 51 is a further letter addressed by him to Sundar Singh. In this it is recited that Ram Kishan's mother got her foot hurt and her knee is fractured and therefore the dawaii should be sent for the writer as well as for Panditji and for no other member of the family. There are large number of letters in the case in which there is reference to purias, medicine and pills. The accused persons, it may be stated, did not offer any explanation as regards most of these letters for the simple reason that they had totally denied that they had anything to do with the conspiracy or with the approver. Ram Kishen in his defence had admitted writing the above letters but pleaded that they really referred to some medicine. But the learned Judge has not believed this version of the story. The learned Sessions Judge in appeal has discussed most of these letters at pp. 26, 27 and 28 of his judgment. I must say that I entirely agree with the view taken by him.

19. In addition to the statement of the approver, the learned Sessions Judge had before him other evidence which strongly corroborates the approver's story. I refer to the large number of letters which various members of the conspiracy wrote and which are in evidence. The evidence of the approver and the handwriting expert proves these letters. In connexion with this matter, it is important to bear in mind the provisions, of Section 10, Evidence Act, This Section enacts as follows:

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

20. The Section in my opinion is quite comprehensive. The important words in it on which I wish to lay special stress are 'in reference to their common intention.' There is a great deal of difference between English and Indian law as regards the admissibility of evidence in conspiracy oases. Now, according to English law everyone, who agrees with others to effect a common illegal purpose, is generally considered in law as a party to every act, which either had before been done, or may afterwards be done, by the confederates in furtherance of the common design: see R. v. Murphy (1837) 8 Car & P. 297 at p. 311. The provisions of Section 10, Evidence Act, are much wider and this Section renders admissible in cases of conspiracy such evidence which is not ordinarily admissible under the English law, or under the Indian law. Under the English law the acts must be in furtherance of the common design whereas under the terms of Section 10, Evidence Act, the acts need only be 'in reference to their common intention.' For instance, under Section 10 anything 'said or done in reference to the common intention' is admissible and therefore the contents of letters written by one in reference to the conspiracy is relevant against the others even though not written in support of it or in furtherance of it. The Illustration to Section 10 shows the comprehensive nature of the law on the subject. It has been repeatedly laid down that direct evidence is not essential to prove a conspiracy. From the very nature of cases of this description it can be seen that it is not possible for the prosecution to produce a written agreement to show that certain persons entered into a conspiracy. Nor can it be expected that the prosecution could produce oral evidence to prove that a number of persons sat together in the presence of witnesses and decided to form a conspiracy for a particular purpose.

21. The question as to whether or not there was a conspiracy has to be decided in reference to the circumstances which might be proved in the case. I think that no fixed rules can be laid down for proving a conspiracy in some cases; it may be possible to prove the existence of a conspiracy by producing letters or some writings of the conspirators. In other oases, the existence of a conspiracy may be proved by oral evidence. Then, there, may be cases in which the fact may be proved by evidence of surrounding circumstances and by the antecedent and subsequent conduct of the accused persons. Then, there may be cases in which the existence of conspiracy may be inferred from circumstances which raise a presumption of a concerted action. It has been held in a number of ruling cases that in many cases the existence of conspiracy is a matter of inference deduced from the criminal or unlawful acts done in pursuance of a common criminal purpose. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred from the proof of facts and circumstances which, taken together, apparently indicate that they are merely part of some complete whole. The first thing for the prosecution in a case of this type was to give satisfactory evidence to show a common purpose. On this point, the prosecution produced the approver. His evidence has been believed by the learned Sessions Judge in his very careful and elaborate judgment and I agree with that view. Then the prosecution has proved a large number of letters which would connect various members of the conspiracy. These letters would be admissible against members of the conspiracy though they were not parties to them. It is here that the provisions of Section 10, Evidence Act, come into play. The defence relied on Bacha Babu v. Emperor : AIR1935All162 in which a Bench of this Court, of which I was a member, laid down that in a conspiracy case evidence of association to he of any value, should suggest something suspicious in such association, and no inference one way or another can be drawn from a mere casual meeting or meetings or conversation between the parties in a public place or park where mere acquaintance frequently meet and talk.

22. If the prosecution in the present case depended on the evidence which went to show that some of the alleged conspirators had been seen talking with each other in bazars or a park, then it would not be right to draw any inference from such casual association which is carried on in broad daylight and in open manner. The nature of the evidence in the present case is however different. The prosecution does not suggest that an inference of conspiracy should be drawn against the accused persons by mere casual associations. On the other hand, the prosecution relies on circumstances which, if they are believed, would go a very long way to establish the existence of the conspiracy. The members of the conspiracy in the present case, according to the prosecution, were not all residing at one and the same place. From the very nature of the conspiracy it was necessary for its success that it should recruit members at different places. In the present case we find that some members resided in Amritsar and some in Hardwar. The active work of forging the used railway tickets appears to have been carried on at Hardwar under the active supervision of Mohan Lal, Sundar Singh, approver, and Debi Das. We have in the present case not only the evidence of people who casually saw the accused persons associating with each other but direct evidence which goes to connect some of the accused persons with the conspiracy. For instance, we find that on 24th August 1935 when the approver was arrested Debi Das, one of the accused, was with him. They were both together when an attempt was made to sell one of the used tickets to Harish Chandra, one of the prosecution witnesses.

23. The evidence of Harish Chandra and other Hardwar witnesses very strongly goes to show that Debi Das, Mohan Lal and Sundar Singh, approver, associated with criminal purpose with each other. They were actually seen rubbing used tickets by some of these witnesses. It was from the information conveyed by these Hardwar witnesses that Mr. Earn Chandra Singh, Sub-Inspector, came to know the nature of and the existence of this conspiracy. He went to the post office and there a letter addressed to Mohan Lai was opened in the presence of respectable witnesses and in that letter used railway tickets were found. Later on, we find that another letter addressed to Mohan Lai was also received at the Post Office at Hardwar which subsequently fell into the hands of the above-mentioned Sub-Inspector. Now, a very strong inference can be drawn from this fact that there were some persons who were in the habit of sending Mohan Lai used railway tickets. Then we find that the approver has stated that the members of the conspiracy corresponded and in their letters to each other they used code words, a 'green puriya' meant a second class railway ticket, a 'red puriya' meant an inter class ticket and 'dawaii' similarly referred to used tickets. In the correspondence to which a reference has been made by the learned Sessions Judge in his judgment we have constant references to these code words, and it appears to me that the conclusion is irresistible that Mohan Lal was in the habit of receiving used tickets from some person.

24. Then in the letters produced there is constant reference to the code words and if we read them the conclusion is irresistible that they refer to railway tickets and nothing else. In Ex. 56, which is a postcard by Bakshi Bam to Sundar Singh, there is a reference to 'cheese' which is also a code word for railway ticket. Sundar Singh is asked to send the tickets to Amritsar for Hardwar. He is further told that as the party of the writer is leaving Delhi so the 'cheese' should not be sent there. Another letter is Ex. 57 sent by Bakshi Earn, accused, to Sundar Singh. It is very significant. Bakshi Ram says that he had gone to Delhi and had returned from there. Then he further states that he had replied to Sundar Singh and that he was waiting to go to Hardwar. Further, Sundar Singh is asked to send the puriyas (powders) about which a request had been made to him. There is also a mention about the absence of one Babu (ticket collector) who has gone on leave. Then further it is said that the things which he demands should be sent to him immediately and there-should be no delay in the matter because certain persons wished to pay a visit to Hardwar. A perusal of this letter throws a. flood of light and there is not the least doubt in my mind that it has reference to railway tickets. These people demand tickets because they say that they are waiting for them and that they cannot leave without the receipt of those tickets. Of course the word 'ticket' is not used but the letter itself shows that the demand cannot refer to anything else. The approver stated that this has reference to tickets, and I have no doubt that his statement is true.

25. Another significant letter is Ex. 50. It is a post-card sent by Gur Datt Singh to Mohan Lai in which it is said that 'Golis' (refers to tickets) got spoiled at Byas and so the writer makes a request for more Golis which are to be sent to Jullandar. This also goes to show that the real object of the post-card was to get used tickets for being again used by the writer. Having regard to the provisions of Section 10, Evidence Act, all these proved letters are evidence not only against the writer, but also against other members of the conspiracy. In the end I may state that, so far as the present case is concerned, the question as to the existence of conspiracy was one which was a pure question of fact and on that the concurrent findings of both the Courts below are final. I am in agreement with the view of the learned Sessions Judge on this question. Now I proceed to consider the individual cases of the various applicants.

26. Debi Das, accused.--Both the Courts below have held that he was a member of the conspiracy. There is evidence of Sundar Singh, approver, which is amply corroborated by other evidence on the record. It is proved satisfactorily that on 24th August 1935 this man was seen along with Sundar Singh at the Har-ki-pairi platform at Hardwar. One of the witnesses, Harish Chandra, deposed that he had a five-rupee note with him which had been signed by Mr. Murari Lai, Magistrate, and that in the presence of this accused one ticket was sold to Harish Chandra. He was apprehended and then another used ticket was found on his person. One of these tickets was from Goshainganj to Lahore. He gave no explanation as to how he was in possession of that ticket. The other ticket was from Mussoorie to Lahore. There was other evidence before the Courts below which, if believed, would go to show that this accused had actually been seen forging used tickets in order to make them available for fresh journeys. He has not been able to show why the prosecution witnesses in whose presence he was searched or arrested are giving evidence against him.

27. The learned Judge has found that they were respectable witnesses who had no reason to give evidence against this accused, and I, sitting in revision, am not prepared to interfere with the decision of the learned Sessions Judge. I agree with the view taken by the learned Sessions Judge that the charges were proved against this accused. Learned Counsel appearing for Debi Das urged for the reduction of the sentence imposed upon this accused. He has been given a sentence of two years' R.I. under Section 467 and one year under Section 471, Penal Code, and he has further been given one year's sentence under Section 120-B and one year under Section 417, Penal Code. The total sentence passed against this accused now comes to three years' rigorous imprisonment. The only alteration which I propose to make in the case of this accused is that the sentences passed against him under Sections 467 and 471 should run concurrently as is the case in respect of the sentence passed against the other accused in the case. The case of this accused is to be differentiated from the case of Mohan Lai, the chief of the conspiracy, because Mohan Lal was the leading spirit, whereas this man was only one of his several assistants. With the exception of the above-mentioned modification the application of Debi Das will fail.

28. Salig Ram, accused.--His case is discussed by the learned Sessions Judge in his appellate judgment at pp. 91 and onward. Salig Ram was arrested by the Sub-Inspector on 27th January 1936 at Bombay. At the time of the search, among other things, one inter-class railway ticket issued on 16th November 1935 was recovered. The learned Sessions Judge has believed the story about the search, and I find no reason for coming to a different conclusion. It appears from the evidence of the approver that this accused was in affluent circumstances at one time but suffered losses on account of satta gambling. He went to Rewa and it appears that from there certain letters were passed between him and Sundar Singh. The accused was anxious to consult some Pandit who would be able to tell him whether by the aid of astrology his future gambling transaction would be successful or not. This accused made acquaintance with one Lachhman Singh who was stated to be a Health Officer at Eewa. Ex. 88 is a letter sent to Sundar Singh and the learned Judge has found that the Gurmukh writing in red ink is in the handwriting of Salig Ram. In this writing Salig Ram mentions that he is in a hospital at Bombay where he will remain for some time. The evidence in the case proves that this accused was in a hospital at Bombay. A good deal of argument was addressed to show that this part of the prosecution story was not true but I find myself unable to agree with this argument. In my opinion the view of the Courts below that this point has been established by the prosecution is correct. Ex. 62 is a post-card sent by this accused to Sundar Singh. In this, among other things, the accused writes:

I intend to go to Hardwar. Send two green puriyas by registered post so that they may not be misdelivered. I have changed my house.... If you send puriyas I shall go to bathe in the Ganges.

29. This clearly refers to second class railway tickets and the man wants those tickets so that ho may go to Hardwar to purify himself without making any payment whatsoever to the railway. He was in the habit of demanding used railway tickets from Sundar Singh, approver, and therefore there cannot be any doubt that he was a member of the conspiracy. It is remarkable that a number of persons should have been writing letters to Sundar Singh demanding used railway tickets. It cannot possibly be said that those letters were forged or fabricated. In the case of a man who has purchased a used and forged ticket once from a member of the conspiracy it might rightly be argued that that fact by itself does not go to make that man a member of the conspiracy. But when we find that a man makes frequent demands for the used and forged tickets from the approver or from other members of the conspiracy, it can rightly be inferred that he is a member of the conspiracy, otherwise, he would not be making such requests. I therefore agree with the Court below in holding that the case against this accused is also proved.

30. Bakshi Ram, accused.--The case of Bakshi Ram is dealt with by the learned Sessions Judge at pp. 87 to 91. This accused is a resident of Amritsar. It is in evidence that Sundar Singh, approver, had been in the service of this man for a number of years and the learned Judge has rightly pointed out in his judgment that the approver in the Court of Session has tried to shield this accused. In a post-card, Ex. 61 sent by Sundar Singh to Mohan Lal on 24th February 1935 he stated:

I wrote to you if the medicine for eating is given to you by Chaubey Ram you should not send it. Don't forgot this because there has been a jhagra here. Either send it to Duni Chand or to Bakshi Ram.... If Chaubey Ram gives it, the address of Bakshi Ram is as follows : Bakshi Ram Broker, Kucha Goshainwala, Katra Bhai Sant Singh.

31. The learned Judge refers to four unsigned and undated post-cards which are Exs. 56, 57, 58 and 59. In Ex. 56 it is stated:.We will leave tomorrow and get to Amritsar on Sunday. Please note this. Do not fail to send us chiz to Amritsar, as we want to meet you at Hardwar without fail. Do not forget this. It is urgent. You need not now send chiz to Delhi.

32. In another post-card, Ex. 59 it is stated:.I have received your chiz alright. Rest assured. Tomorrow at 7-30 I will entrain Chaman Lal's bhabi. You reach the station at the right time and take over chiz. Shamo will accompany her, which please note....

33. The learned Judge was perfectly right in holding that these letters have reference to used railway tickets. In Ex. 58, it was said that the three puriyas received were spoilt and time-barred and there is a request for valid chiz. This certainly refers to used railway tickets. As the approver stated, it was a part of the conspiracy that the letters sent by the conspirators by each other should not be dated. The words 'chiz', 'puriyas', 'golis' and 'dawai', according to the approver all refer to used railway tickets. In my opinion the charge against this accused has been rightly held to be proved and his revision must therefore fail.

34. Bhola Nath, accused.--The learned Sessions Judge has discussed the case of this accused at pp. 51 to 65. This man is a resident of Moradabad and was in the railway service as a ticket collector. He was posted at Hardwar. The approver's statement is that he was a member of the conspiracy and used to supply used tickets to the members of the conspiracy. The approver's story is that they were anxious to secure the service of some ticket collectors from whom they could get used railway tickets. For the purposes of the conspiracy it was absolutely essential to secure tickets and for that purpose they had commandeered the services of several ticket collectors. Three of them were among the accused persons. Two have been let off, but the learned Judge found that the case against Bhola Nath, accused, was established and he has therefore been convicted. The evidence produced by the approver which is to some extent corroborated by other evidence in the case proves beyond any doubt that the approver Sundar Singh, Bhola Nath and Debi Das were on friendly terms with each other. In my opinion, the approver has stated the truth when he says that this man Bhola Nath was a man of loose character and was anxious to secure a mistress for himself and that with a view to please him Debi Das procured a girl, Mt. Raj Kumari.

35. It has been proved to the satisfaction of the Courts below that Bhola Nath, Mt. Lachmi and Debi Das went together and lived in Dehra Dun where Mt. Raj Kumari was passed off as the wife of Bhola Nath. It is further in evidence that when the house of Sundar Singh was searched at Amritsar a letter written by Bhola Nath to Sundar Singh was recovered. I see no reason to differ from the view of the Court below that this letter was recovered from the possession of Sundar Singh at Amritsar, as alleged by the prosecution, and it appears to me that the subsequent statement of Sundar Singh in the Court of Session to the effect that the Sub-Inspector had shown him this letter at Roorkee a few days after his arrest was made falsely with a view to help Bhola Nath. The learned Judge has found that Ex. 126 is in the handwriting of Bhola Nath, accused. Among other things, he informed Sundar Singh that he was working at Lhaksar Station and that he would meet Sundar Singh on his way to Hardwar at that place. The significant words in this letter are : 'From there I will arrange everything.' Ex. 102 is a post-card written at the request of Sundar Singh, approver, by one Sardar Harnam Singh, B.A., (P.W. 60). Harnam Singh proves that he wrote this letter at the dictation of Sundar Singh. It is sent to Bhola Nath. The significant words of this post-card are:.Received your letter. I am glad that you have done it quite sincerely and one should really do it in such a way.

36. No explanation has been offered by Bhola Nath to explain what this expression meant. The reason is that on his behalf it was denied that this letter had been sent to him. The learned Judge of the lower Appellate Court in these circumstances was quite right in placing this interpretation on the words. He held that Bhola Nath very apparently had sent used tickets to Sundar Singh and therefore Sundar Singh was talking about his good action. The prosecution evidence is that this letter, Ex. 102 was found by the police when a search was made at the quarters of Bhola Nath at Hardwar on 2nd September 1935. To me it appears that the recovery of this letter is a very strong piece of evidence against this accused. It would be most difficult for the prosecution to forge a letter of this kind or to get bold of it from somebody else. We have got to take it as an established fact that the evidence proves satisfactorily that this letter, Ex. 102 is written in the handwriting of Harnam Singh who is a resident of Amritsar. Harnam Singh has deposed that he wrote this at the request of Sundar Singh and that it was addressed to Bhola Nath. Now, in these circumstances, it lay upon the accused to explain how this letter came in his possession if he was not on friendly terms with Sundar Singh. No attempt to give any explanation on this question was made on behalf of the accused.

37. The prosecution evidence was that four used railway tickets were recovered from the house of Bhola Nath at the time of the search made by the police. This point has been very strenuously contested but the learned Judge of the lower Appellate Court found that the point was established. It has been argued before me by learned Counsel appearing for the defence that the evidence of the witnesses does not prove that these four tickets were recovered from the possession of Bhola Nath. Learned Counsel for the defence has argued before me that all that the search witnesses say is that Jhaman Singh, constable, raised a shout that he had seen certain railway tickets in an almirah of the house of the accused. It is said that the search witnesses themselves did not see the tickets in the almirah. The suggestion is that very probably Jhaman Singh placed the tickets there and the story about their recovery is therefore a pure invention. It is also complained that the prosecution did not examine Jhaman Singh deliberately. It becomes therefore necessary to see whether there was a search in accordance with law and whether the four tickets were recovered from the house of Bhola Nath when a search was made there. The witnesses to this search are Circle Inspector, Mota Singh, Sub-Inspector, Earn Chandra Singh, Gauri Shanker (P.W. 68), K.N. Pande (P.W. 69) and Pirthi Nath (P.W. 128). The learned Judge has found that all these witnesses admitted entering the quarters of Bhola Nath and showed to each other that they were not carrying anything on their persons. The learned Sessions Judge has-further held that it is difficult to suppose that there could have been any planting of these tickets in the presence of respectable men like the Station Master and Assistant Station Master. The evidence of Babu Gauri Shanker (P.W. 68) at p. 198 makes it clear that before the various persons of the search party entered the quarters of Bhola Nath they were searched. He states:

Before entering, the police told us to search, them, and they also said we must be searched. We, witnesses and the police were all searched. Nothing was found on any of us. We all entered, as the search was beginning.

38. This statement excluded the possibility of the tickets being taken by one of the police party there. I take it that when this witness says that the police were searched he includes Jhaman Singh constable. I therefore find it difficult to accept the story that the tickets recovered from the almirah of Bhola Nath were placed by some one and that then a show was made about their recovery. As has been pointed out by the learned Sessions Judge, the witnesses present at the time of the search were respectable, and when both the Courts below have believed the story stated by them, I sitting as a Court of revision, do not see any reason for coming to a different conclusion. In my opinion the close association of Bhola Nath with Sundar Singh, the recovery of used railway tickets from his possession and the hint by Sundar Singh about his having done a useful thing are all points which clearly go to show that Bhola Nath was a member of the conspiracy. I therefore hold that the learned Judge of the Court below was right in finding him guilty.

39. The case on behalf of the accused persona was argued before me by Messrs. K.D. Malaviya and B.S. Darbari with great ability and care and they said all that could be said in favour of the accused persons. I also wish to express my appreciation of the able and excellent manner in which Mr. Kedar Nath has argued the case on behalf of the Crown. He was thoroughly prepared and was of great assistance and help to the Court. For the reasons given above the revision applications of Bhola Nath, Salig Ram and Bakshi Ram are dismissed. Similarly, the conviction of Debi Das is also affirmed but in his case the sentences passed against him under Sections 467 and 471, Penal Code, are directed to run concurrently. In all other respects his revision application is also dismissed. I understand from counsel that with the exception of Debi Das all the other applicants are on bail. They will surrender and serve out the sentences imposed upon them according to law.


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