1. This is an appeal of six men from convictions under Section 396, I.P.C., and in the case of Abdul Jalil Khan and Abdul Shakur alias Shakuri, sentences of death and, in the case of Dilawar, Kundan, Chhida and Hemraj, sentences of 10 years' rigorous imprisonment, including three months' solitary confinement. The printed paper-book of the case runs to just over 300 pages. This is partly due to the fact that the learned Additional Judge has admitted on to the record the whole of previous statements made by witnesses. Previous statements of witnesses are only ordinarily admissible to corroborate or contradict the witnesses who have made statements at the trial, or by virtue of Section 288, Criminal P.C. The latter section should only be employed when there is reason to believe that a witness at the trial is deliberately departing from the evidence which he gave before the Magistrate and where it is considered by the trial Judge desirable to bring the whole statement made before the Magistrate on record as substantive evidence. As to corroborating a witness it is unnecessary, and this has been pointed out many times, for the prosecution to corroborate their witnesses by previous statements, until the statement made at the trial has been, in one way or another, challenged. As to contradicting a witness it is not in accordance with law to use his statement made on a previous occasion, until the particular statement, by means of which it is desired to contradict the witness, is put to him and he is asked what explanation he can give. In neither of these two latter cases is the previous statement itself substantive evidence. We recognize however that in the present case, in bringing the whole of previous statements on to the record, the learned Judge was only moved by a desire to give the accused every opportunity of making such criticisms against the witnesses' testimony in the Sessions Court as they could found on the earlier statements. The learned Judge's judgment extends to nearly 40 pages of the printed record, and he has dealt with the case ably and exhaustively. If as we think, he has dealt with it in greater detail than is necessary, we again recognize that is an error on the right side and that he was only desirous of dealing with the case thoroughly. He has certainly succeeded.
2. We have listened to counsel for the appellants for several days and he again has given very commendable labour and time to the study of this brief. These facts, however, which we can and do record with approval make it the less necessary for us to enter into details ourselves. The evidence consists of that of an approver, Narain, and a number of men who were eye witnesses to the dacoity. The learned Judge has further relied on what is described as the confession of one of the accused Dilawar. Except in one very important feature, dealing with the arrival of the dacoits on the spot and the part actually taken by Dilawar, there is no serious discrepancy between the so called confession of Dilawar and the statement of the approver. The approver Narain's statement is that some of the dacoits came to a spot on the road to the village where the dacoity was committed on a tonga driven by one of the witnesses for the prosecution, Hafizul Rahman. Hafizul Rahman minimises his own share in the dacoity and says that he was compelled to drive some of the dacoits there. This explanation of his own presence among the dacoits is apparently accepted by the Crown.
3. Dilawar, accused, in his so-called confession describes how he drove the same two dacoits who are alleged to have come with Hafizul Rahman on his own ekka and says that he was compelled to this course by threats. The Crown did not in the case of this man accept the explanation. The fact remains that we have in the so-called confession of Dilawar and in the statement of the approver, as supported by Hafizul Rahman, two irreconcilable stories, one of necessity deliberately false, as to the manner in which some of the dacoits came 'to the meeting place. It would be possible perhaps to offer an explanation of this conflict, but in view of the line that has been taken in this Court by the Crown, it is unnecessary to deal with it in detail. The learned trial Judge has given some weight to the alleged confession of Dilawar, but in this Court the Crown has thrown it out and does not ask us to rely upon it. We think that the learned Government Pleader was right in adopting this course. Whether or no Dilawar had told the truth in the rest of the story in the alleged confession and only endeavoured to protect himself by explaining that he was forced into the course that he followed, the fact remains that the confession, as it stands, does not implicate him himself and is in fact not a confession at all, but an explanation exculpating himself from his alleged share in the dacoity. We need not therefore say anything further on the subject of Dilawar's confession more than this, that we had to examine very carefully the circumstances in which it was made to see whether any conclusion could be drawn from these circumstances from which the appellants were entitled to reap an advantage. We do not think, however, that any conclusion can be drawn from those circumstances in favour of the appellants.
4. We deal with the case, therefore, as depending upon the statement of the approver Narain, supported by the evidence of eyewitnesses.
5. We do not find it necessary to deal with the cases of any of the appellants, excepting that of Chidda, in any detail. In the case of Abdul Jalil the evidence is, in our opinion, fully satisfactory. In the case of Abdul Shakur we eliminate the evidence of Tara. He identified Abdul Shakur in the Bareilly jail and he made no mistakes. It is true that he picked out Abdul Shakur from a line including Shakuri and Abdul Jalil and 15 other men not suspected in the case, and it is true that he did not pick out in the Bareilly jail any unsuspected person, that is, any person admittedly not suspected in the dacoity. Had his efforts at identification stopped there, there might not have been much to be said against it, but we find that he was also invited to Pilibhit to pick out other accused whom he could identify from the long line of men put up before him, and he failed to identify any one of the suspected persons, while he did identify no less than three persons who admittedly were not suspected. Eliminating Tara we find more than sufficient evidence in the testimony of the remaining witnesses to support the conviction of Abdul Shakur. Similarly in the case of Dilawar, we strike out the evidence of Pitam who, while pointing out two of the suspected persons in the jail and making four mistakes, again failed in the Magistrate's Court and the Sessions Court to point out Dilawar. We do not suggest that an identification by a witness in jail who fails to point him out in the trial Court is necessarily worthless. His evidence that he did at the jail point out certain persons, though he cannot remember them, read with the evidence of other persons who can show who were the persons that were identified, may be of some value read with other evidence. But manifestly it is not evidence on which very great reliance can be placed. Striking out, however, Pitam from the list of witnesses against Dilawar we find there is sufficient remaining. The cases of the other accused, with the exception of Chidda, it is not necessary to deal with separately.
6. In the case of Chidda we find that Kandhai and Radhe, though they picked him out at the identification proceedings in the jail, did not identify him before the Magistrate or in the Sessions Court, and, as we have just said above, such an identification can ordinarily not carry much weight. Lochan, another witness, picked out Chidda in the Pilibhit jail, but he there also pointed out four persons who were not even suspected, while in the Bareilly jail he failed to pick out anybody rightly and did pick out one person wrongly. Lochan though he picked out Chidda in the Sessions Court failed to pick him out in the Magistrate's Court and picked out one Abdulla in his place. The evidence of Lochan is therefore unreliable. There remains against Chidda the statement of the approver supported only by the statement of Piare. We have, therefore, the more carefully examined the statement of Piare, for it does not follow that because there is only one witness, that witness' testimony is insufficient to corroborate the approver. We find, however, in Piare's statement before the trial Court that he constantly lays stress upon the fact that he knew Chidda because he saw him on the chabutra in front of the house where the dacoity was committed walking up and down with a sword. He was asked whether he had not in fact stated before the committing Magistrate that he saw no arms with any dacoit. He replied that he had told the Deputy Magistrate that he did see arms with the dacoits though the Deputy Magistrate may not have recorded the fact. The English record of the evidence in the committing Magistrate's Court shows that Piare there said:
I had not seen gun and weapon with any of the dacoits.
7. To further satisfy ourselves we checked the vernacular record and we found the same statement there. It is impossible then for us to believe Piare's statement that he stated the contrary and that he has been incorrectly recorded. It is difficult to suppose that both the Peshkar and the Magistrate, recording a statement in different languages, would have made the same mistake, and further it is certain that if he had said: 'I did see arms in the hands of the dacoits,' he would have been asked in whose hands he saw them, whatever his answer might have been. We do not think therefore that we can with confidence rely on the statement of Piare.
8. In our view then the appeals of all the appellants, except in the case of Chidda, must be dismissed.
9. A few further comments we must make. On p. 263 of the printed paper-book the learned trial Judge expresses the opinion that the statement of a woman to the police who was one of those residing in the house in which the dacoity was committed, could be treated as a first information report and that therefore such a statement was admissible against the accused, seeing that the woman in question was produced as a witness in the case and could be cross-examined on it. In this the trial Judge was in error. The first information report was clearly that which was made by the chowkidar. The statement made by the woman was nothing more than a statement made by a witness for the prosecution to the police, which could not be used by the Crown for any purpose and could only be used by the defence as a basis for cross-examination.
10. The next comment that we have to make is that in the course of the argument the learned Government Pleader, when dealing with the conflicting statements of Dilawar in his statement as an approver and Narain in his statement as an approver, drew our attention to the evidence of Babu Sri Krishana, Circle Inspector, which is to be found on p. 213 of the printed book. It is indeed astonishing that in the year 1929, when this evidence was given the Government Pleader of Pilibhit should have seen fit to lead it at all. There are no less than two printed pages at the very commencement of this police officer's evidence which are directed to one purpose and one purpose alone, namely, to show what a bad character the appellant Abdul Jalil was and how justified the Crown were in proceeding against him. We quote the following two examples of the evidence that the Government Pleader of Pilibhit permitted himself to lead. They are:
In connexion with that dacoity (some other dacoity) the Sub-Inspector of Khatewa and the circle Inspector of Naini Tal came to me at Pilibhit. They expressed their suspicion about this dacoity on Abdul Jalil. etc.
the police of Pilibhit was very much afraid of Abdul Jalil Khan and was also in collusion with him. Nobody dared to see his house.
12. There are two pages of this sort of thing. It so happened that the Government Pleader of Pilibhit who represented the Crown at the trial was present in Court before us, and we asked him to explain how it came about that he led these two pages of evidence at the very commencement of the Circle Inspector's evidence without there having been any foundation to justify the evidence being led. He could only refer us to some wholly unsubstantiated suggestion that the police were intending originally to run a gang case and, therefore, wanting to put in all the evidence they could to connect various persons suspected in various dacoities or murders. It is manifestly immaterial what the police intended; the present case was a case directed, or at least should have been directed, solely to the proof of single dacoity. The only matter to which the Government Pleader of Pilibhit could direct our attention was a statement of the Magistrate who conducted the identification proceedings in the jail to the effect that he did not know for what case the accused were to be identified, but from the large number of accused put up before him he concluded that it was a gang case.
13. It is unnecessary to deal with this suggestion any further. The case before the Court, and the only case with which the Government Pleader of Pilibhit and the Court were concerned, was this single charge of a single dacoity, and it ought to have been most manifest to the Government Pleader of Pilibhit that he was not entitled to lead evidence to prejudice the Court against the accused or any particular accused and that he could only lead evidence of the bad character of the accused if that particular accused had previously led evidence of his good character (Evidence Act, Section 54). It is not suggested that Abdul Jalil Khan or any of the accused had, up to that period at any rate, led evidence of good character. We may note also that even if the Government Pleader of Pilibhit did endeavour to lead such evidence, it was the duty of the trial Court to have stopped him immediately. We recognize of course that the learned Judge had not had much experience on the date in question of Sessions work, and his failure to stop the Government Pleader in no way detracts from our great appreciation of the care and trouble that he expended on the case.
14. The next comment that we feel compelled to make is in reference to the Magistrate, Mr. Sri Kishen Kumar, who recorded the confession of Narain under Section 164, Criminal P.C. He had already apparently recorded the alleged confession of Dilawar, and we have already made mention of the serious conflict between Dilawar and Narain as to the manner in which the dacoits assembled at the spot, and also in regard to the acts of Dilawar subsequently and during the dacoity. Whether or no it was from Dilawar's previous statement that the Magistrate had got his knowledge, it is manifest that at the conclusion of Narain's statement he realized the serious discrepancy between the two statements and, as the record shows, apparently made a determined effort to get Narain's statement into harmony with that of Dilawar. Narain stated that Shakuri, Jalil and Dilawar went on a tonga while the remaining persons went on foot. Dilawar had stated that Shakuri and Jalil were driven by him to the meeting place on his own ekka. Narain completely finished his own statement, that is, the statement which he had come voluntarily to make, when the Magistrate proceeded to question him at great length manifestly on the basis of some information in his possession. It is only necessary to mention samples of the questions he asked. Question: 'Did Shakuri and Jalil go in an ekka or in a tonga?' There was no ambiguity whatever in Narain's statement that they had come in a tonga, but it was in conflict with Dilawar's statement that he bad taken two men on his own ekka. Narain relied definitely 'in a tonga.' The conflict remained. The next question asked was 'Was Dilawar in the same tonga?' Manifestly this was with a view to giving Narain a chance of saying, 'No Dilawar was in an ekka,' but the witness replied definitely 'yes.' The witness was then asked 'Who was driving the tonga?' and replied 'The tonga belonged to some one else whom I do not recognize?' Now it was manifest from Narain's earlier statements that he knew Dilawar well, for he had given evidence mentioning Dilawar by name and the share that Dilawar took in the dacoity. Notwithstanding this the Magistrate asked him again 'Was it driven by Dilawar?' and Narain again replied definitely 'No.' There are many other instances too numerous to detail showing that the Magistrate was questioning Narain in detail on matters already within the Magistrate's knowledge and endeavouring to reconcile the statement of Narain with that of Dilawar. This was no part of his duty at all. It was his duty merely to record such confession or statement as Narain might desire to make. It was also part of his duty with great caution and exercising the greatest discretion to question Narain in order to eliminate any real ambiguity that there might be in Narain's statement, or in other words to give Narain a chance of making his statement intelligible. But he had no right whatever to cross-examine the man who was making the statement or to endeavour to get particular statements out of him.
15. Before concluding we may discharge the more pleasant duty of expressing our approval of the very careful maps of the locality and the khasras accompanying, that were prepared by the responsible officers on behalf of the Crown. They have been of the very greatest assistance to 'us in appraising the value of the evidence and the facts generally of the case. We have already expressed our appreciation of the careful judgment of the trial Judge, Mr. Ram Ugrah Lal Srivastava, which we have had to consider.
16. The result is that we set aside the conviction of Chidda and direct his immediate release, unless he is required in connexion with any other matter. The appeals of the remaining five are dismissed, and the sentences on Abdul Jalil and Abdul Shakur will be carried out according to law. A separate order will be passed expressing to Government our recommendation that it might consider the grant of an enhanced fee to the counsel, Mr, Abdul Aziz, who represented the appellants.