1. Randhir, Tarif, Ram Prasad, Jaipal, Ram Narain and Ajab Singh were tried before the Assistant Sessions Judge, Meerut, for offences under Sections 399 and 402, I. P. C. on the ground that on the 16th September 1956 at Lisari Gate, Meerut city, they had made preparations for and assembled for committing dacoity. Randhir, Tarjf, Ram Narain and Ajab Singh were further charged under Section 19(f) of the Arms Act with possession of unlicensed fire-arms. The learned Judge convicted these four under Section 19(f) and awarded a sentence of two years' rigorous imprisonment and a fine of Rs. 100/- each.
But in respect of the major charges under Sections 399 and 402, I. P. C., he came to the conclusion that the evidence on the record was not sufficient to establish them, hence he acquitted all the accused of these charges. The State Government have preferred this appeal against the order of acquittal. We might state that the four men convicted under Section 19(f), Arms Act, appear to have submitted to their conviction and sentences for that offence.
2. It is worth bearing in mind that except for the fact that Randhir and Jaipal are brothers, there is no apparent connection between the respondents: Randhir and Jaipa] belong to village Allam, police circle Kandhla, district Muzaffarnagar; Tarif and Ram Prasad to village Barseni, police circle Kanchhla, district Muzaffarnagar; Ajab Singh to village Bhabasia, police circle Kandhla, district Muzaffarnagar; Ram Narain to village Sankrodh, police circle Khekra, district Meerut. Thus, they belong to places more than thirty miles distant from the place where their offences are said to have been committed, and indeed only one of them is of district Meerut, the remaining five hailing from district Muzaffarnagar.
3. In order that the case for the prosecution may be properly appreciated we might mention that on the pucca road connecting Meerut city with Garhmukteshwar, and ten miles from the former, is a village called Hasanpur. Three miles off the main road from Hasanpur lies the village of the Paswara. (We have obtained these facts from the Survey Map.) In Paswara there lives a wealthy family consisting of a military officer (who is away on service) and his brother Raghubir Singh (who resides in the village). On the southern outskirts of Meerut city lies Lisari Gate, which is a centre of road communications. A person travelling by road from the Baghpat railway-crossing just outside Meerut city and going to village Hasanpur must pass Lisari Gate.
4. The case against the respondents may be outlined as follows. On the 16th September 1956 Sub-Inspector B. R. Goel was investigating a crime in a certain village when an informer (whose name has been withheld by the prosecution, a matter in which they are privileged) told him that a gang of dacoits had planned a dacoity in Paswara at the house of military officer aforesaid and would be proceeding there by tonga that very evening. Hearing this Sub-Inspector Goel immediately took the informer to the Senior Superintendent of Police of Meerut and submitted all the facts to him.
The Superintendent summoned Sri Kamla Mal, Deputy Superintendent of Police, and deputed him to arrest the gangsters. Accordingly Sri Kamla Mal, taking Sub-Inspector Goel, the informer and some other persons with him, proceeded in two motor cars to the Baghpat railway-crossing. A tonga containing six passengers was seen coming down the road, The informer pointed out these passengers as the dacoits. Sri Kamla Mal immediately formed to plan of capturing them at Lisari Gate by sending one car ahead and making the other car follow the tonga. The plan was duly put into operation, and at Lisari Gate the tonga surrounded and stopped.
The six respondents who were sitting in it tried to escape, but despite physical resistance offered by them were captured on the spot. The time was 5-15 p.m. The captured men were the six respondents before us. They were strangers to the police party, and themselves furnished their names and addresses. On a search being made of their persons in the presence of witnesses, Randhir was found in possession of a 16-bore D.B.B.L. gun and 20 cartridges; Tarif and Ajab Singh of a country-made pistol and four cartridges each; Ram Prasad and Jaipal of an electric torch each; Ram Narain of a 303-bore rifle, 51 cartridges, a screw driver and some other articles.
None of them possessed any licence for these firearms. All the firearms and the torches were in working order. Further, Randhir's gun and Ram Narain's rifle were found broken up in parts and kept wrapped up in pieces of cloth. Recovery lists were prepared then and there and attested by the witnesses. The arrested men were then marched off to the District Jail. In the expectation that they might have to be put up for identification proceedings in specific dacoity cases their faces were veiled so as not to be seen by anyone.
5. Sri Kamla Mal proceeded to the Meerut Kotwali and on reaching there at 6-30 p.m. dictated the first report of the occurrence detailing all these facts.
6. Pleading not guilty the respondents deny their arrest at Lisari Gate and allege that they were apprehended from their respective houses; they disclaim all connection with the firearms and torches mentioned above. They attribute their prosecution to enmity with the police and certain private individuals. Ram Narain has added that he was suffering from tuberculosis and that he had a plaster on which was cut before he was sent to the jail. It is highly significant that not one of them has attempted the slightest explanation for his presence at Lisari Gate, of indeed for his presence in or near the city of Meerut, nor has any explanation been offered for travelling together in a tonga with illicit firearms.
7. The respondents have produced some defence evidence intended to show that they were arrested from their houses or that they have enmity with certain individuals. This evidence has been considered by the trial Judge and found unworthy of acceptance. Before us their learned counsel has made no attempt to rely on his evidence, hence we think it unnecessary to discuss it ourselves; suffice it to say that we endorse the trial Judge's appraisement of it.
8. The prosecution story narrated above rests on the testimony of Sri Kamla Mal, Sub-Inspector Goel, Nanua, Akhtar, Sri Nivas, Harbans Lal and E.atan Lal. The first two were the Police officers responsible for the arrest of the respondents. Sri Kamla Mal made the first report of the incident, a report which is in full accord with the prosecution case. Nanua and Akhtar were working near Lisari Gate at the time of the capture and the search of the respondents. Sri Niwas is a Municipal Commissioner who was constructing a house at that Gate. Harbans Lal has his house closeby.
Ratan Lal was the driver of the tonga in which the respondents were travelling. All these persons testify to the arrest of the respondents and to the recovery of the aforesaid articles from their possession. Only Sri Niwas has not been sure if the respondents were the very six men who were captured: the other witnesses have no difficulty in identifying them in the dock. In addition. Ratan Lal has given the important information that the respondents engaged his tonga to take them to Hasanpur, and the agreement was that he was to wait for them at Hasanpur while they remained away for three or four hours and that on their return after that period they would use his tonga for the return journey. All these witnesses were total strangers to the respondents, so that no question arises of their deposing mala fide.
9. Two other prosecution witnesses are Raghubir Singh and his neighbour Nain Singh, both of village Paswara. Raghubir Singh is the brother of the military officer referred to by the informer as the person at whose house the dacoity was contemplated. Both witnesses state that a few days before the incident they saw two strangers loitering near Raghubir Singh's house and that when questioned they slunk away without giving any reply. At a test identification held in the jail both witnesses had pointed out to the respondents Randhir and Ram Narain as the two strangers in question.
10. After a careful consideration of the evidence of these witnesses and the criticism levelled against it by defence counsel the trial Judge found the evidence 'true and trustworthy' and held that 'all the six accused in this case were arrested at the tiraha of Lisari Gate in the manner alleged by the prosecution case'. He also upheld the prosecution allegation of the possession by individual accused persons of the illicit arms and torches as already mentioned.
11. The trial Judge, as stated earlier, found no difficulty in convicting four of the respondents under Section 19(f) of the Arms Act for possession of unlicensed firearms. But when he turned to examine the charges under Sections 399 and 402, I. P. C. he considered that they were not made out since it was not
'conclusively established that tile accused persons made preparations for committing dacoity and that they were one of the five or more persons assembled for the purpose of committing dacoity.' For arriving at this conclusion he advanced the following reasons :--
(a) That the informer had not been examined, and the evidence of Sri Kamla Mal and Sub-Inspector Goel in respect of him was mere hearsay and hence inadmissible;
(b) that there was no evidence of any overt act by the respondents which amounted to preparation for committing dacoity;
(c) that no instruments for committing house breaking were recovered from the respondents;
(d) that the respondents were not arrested near the place of the contemplated dacoity;
(e) that Raghubir Singh and Nain Singh did not state that the movements of the respondents Randhir and Ram Narain near the former's house were suspicious; and
(f) that on the strength of the decision of a Division Bench of this Court in State v. Ghissu Khan, 1956 All LJ 853: (AIR 1956 All 464) the respondents could not be held to have made preparations for or assembled for dacoity.
12. In view of the well-settled law governing appeals against orders of acquittal it is imperative that these reasons of the learned Judge be given careful consideration. There can be no quarrel with his reason (a) in so far as it relates to the inadmissibility of the evidence given by the two police officers with regard to the information they received from the informer. But if the reason is intended to serve as a criticism of the non-disclosure of the name of the informer, or his non-production, we must join issue with the learned Judge. In the first place, neither police officer was- asked who the informer was or why he had not been produced,
Secondly, Section 125 of the Evidence Act entitles a police officer to refuse to disclose the source of his information as to the commission of any offence, while public policy demands that no adverse inference be drawn against the prosecution for withholding an informer from the witness box --in this behalf the law in India is the same as in England, where in the case of Home v. Bentick, (1820) 2 B and B 130 at p. 162, quoted in Sarkar's ''Law of Evidence', 8th Edn. at page 1051 it was held:
'.......it is absolutely essential to the welfare of the State that the names of parties who interpose in situations of this kind (i.e., spies, decoys or informers) should not be divulged; for otherwise, be it from fear, or shame, or the dislike of being mixed up in enquiries of this nature, few men would choose to assume the disagreeable part of giving or receiving information respecting offences, and the consequence would be that a great many crimes would pass unpunished;'
and for our part we would add that fear of reprisals on the part of the criminals thus brought to book would be an effective deterrent to bringing crime to thr notice of the public authorities.
13. Reason (b) is a misconceived one, for it ignores that there is no distinction between a da-coity and an attempt to commi one--see Section 391 I. P. C. Any overt act by the respondents for what the learned Judge calls 'preparation of da-coity' would immediately amount to an attempt to commit dacoity, and would immediately make them liable under Section 395, I. P. C. It would plainly be idle to seek for an overt act for recording a conviction under Section 399, I. P. C. Section 395 would be the section applicable.
14. The learned Judge's reason (c) is devoid of force. For meeting it it would be sufficient to quote the following from the judgment of one of us in Criminal Appeal No. 1437 of 1957, D/- 9-2-1959 (All):--
'Implements of house-breaking are not at all required by dacoits, though they may be the necessary tools of a surreptitious burglar. Pistols and spears with which some of the appellants were armed, can be far more effective for the purpose of breaking locks than the conventional implements of house-breaking such as chisels, hammers and jemmies.'
We might add that long experience of dealing with dacoity cases has shown that daccits hardly ever carry jemmies, chisels etc., firearms and other lethal weapons being far more effective for their purposes. It follows that the mere fact that the present respondents did not carry any instruments of house-breaking can in no way weaken the prosecution case.
15. Reason (d) is equally untenable, for there is nothing to prevent a set of criminals from perpetrating a crime at one place after preparing for it or assembling for it at a distant place.
16. With regard to reason (e) we confess we fail to understand what the learned Judge means by saying that Randhir and Ram Narain were not behaving suspiciously in the neighbourhood of Raghubir Singh's house. If their object was, as the prosecution would have us believe, to make a reconnaissance of the house which they were planning to plunder, they would be the last persons to call attention to themselves by suspicious conduct; on the contrary they would do their best to behave naturally. What the learned Judge has ignored is that when questioned by Raghubir Singh and Nain Singh they gave no reply but slunk away. Such could hardly be the conduct of persons whose intentions were innocent. Besides, it was for these respondents to explain what without rhyme or reason they were doing in the vicinity of the house, but they have failed to give any account of it.
17. We turn now to the trial Judge's reason (f), viz., 1956 All LJ 853: (AIR 1956 All 464), the decision which primarily led the learned Judge to believe that the offences under Sections 399 and 402, T. P. C. were not made out. At the very outset we should like to remark that his reliance on that decision illustrates the danger of following precedents without a proper appreciation of the facts on which they are based. Attention to this danger was drawn by the Supreme Court in Prakash Cbandra Pathak v. State of U. P., Criminal Appeal No. 110 of 1957, D/- 10-7-1957 wherein their Lordships have observed:
'.......decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases, which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another. Therefore, it will serve no useful purpose to decide this case with reference to the decisions of this Court in previous cases. We have to determine whether on the facts and circumstances disclosed in the evidence which has been accepted by the Courts below, the crime charged against the appellant has been made out.'
Now, what were the facts in the case of 1956 All LJ 853: (AIR 1956 All 464)? Five persons, several of whom carried unlicensed arms, were arrested from a railway compartment; a witness named Phullan Shah stated that one of these men had earlier told him that they were going to commit a dacoity and had asked him to join them. Phullan Shah's evidence was disbelieved. It was in these circumstances that their Lordships who decided the case held that
'the mere fact that a number of persons were found collected together, some of whom in possession of firearms, does not by itself lead to the inference that they had collected there having made preparation to commit dacoity.'
At the same time their Lordships emphasised that 'each case will depend upon its own circumstances'. We entirely agree that the mere fact that a number of men, some of them armed, are caught in a railway carriage which must inevitably contain scores of harmless persons, and with regard to the passengers of which it cannot even he certain as to which of them are actuated by a common intention or object does not warrant their conviction under Section 399 or Section 402, I. P. C., for it can be perfectly consistent with their innocence. Indeed, 1956 All LJ 853: (AIR 1956 All 464) does not lay down anything more than what we have already quoted from the judgment of their Lordships who decided it.
18. The error into which the learned trial Judge has fallen in the ins'tant case is in thinking that the facts of this case were on all fours with those of 1956 All LJ 853: (AIR 1956 All 464). This, as we shall show presently, is decidedly not true, and we consider this time opportune to strike a note of warning against the misapplication of the reported case aforesaid, as we find a good many subordinate Courts unfortunately doing so.
19. But before we enumerate the established facts of the instant case there arc two matters on which we find it necessary to lay emphasis. The first is Section 106 of the Evidence Act which runs:
'When any fact is especially within the knowledge of any persons, the burden of proving that fact is upon him.'
In Shambhu Nath Mehra v. State of Ajmer, (S) AIR 1956 SC 404 the Supreme Court considered the application of this section in criminal cases, and after laying stress on the word 'especially' appearing in the section and pointing out that the section was an exception to Section 101 which placed the burden of proving a criminal charge fairly and squarely on the prosecution observed:--
'This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience.'
Now, it can scarcely be disputed that the object or intention with which the respondents were proceeding together towards Paswara carrying torches and illicit firearms was a fact 'especially' within their knowledge, and that it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish it -- it could be established only if one or more of the respondents appeared in the witness-box as an approver, an eventuality beyond the power of the prosecution. Consequently Section 106 comes into play, and a statutory burden is placed on the respondents to satisfy the Court as to their object or intention, It should be emphasised that no attempt whatsoever has been made by them to discharge this statutory duty. We consider that we are entitled to draw an appropriate inference from this omission.
20. The second matter arises out of the fact that the respondents have given no explanation of the proved facts of the case but have on the contrary falsely denied their possession of illicit arms or of their arrest at Lisari Gate. The Supreme Court in Deonandan Mishra v. State of Bihar, (S) AIR 1955 SC 801 have laid down that the absence of an explanation by the accused, or a false explanation by him, would itself be an additional piece of circumstantial evidence against him completing the chain of evidence establishing the charge. This brings us to the crucial question in the case: what was the object or intention of the respondents? This is a question of fact which, like any other question of fact can be answered either by direct evidence or by circumstantial evidence. Admittedly there is no direct evidence in the instant case. Is there circumstantial evidence sufficient to furnish a definite reply? Our answer is decidedly in the affirmative. The following are the established circumstances of the case:--
(a) The respondents hail from distant places;
(b) there i.s no apparent connection between them except that two of them happen to be brothers;
(c) they are caught at Lisari Gate travelling together in a hired tonga. The tonga has been hired for taking them to Hasanpur, close to Paswara and has to await their return;
(d) they are found in possession of electric torches and illicit firearms, the firearms of Randhir and Ram Narain being particularly dangerous;
(e) they resist their capture by the police;
(f) earlier two of them are found loitering near Raghubir Singh's house in Paswara, and when questioned slink away without reply;
(g) they fail to discharge the statutory burden cast on them by Section 106, Evidence Act; and
(h) they give no explanation, or give a false explanation, of the facts proved against them. What is the conclusion to which these circumstances lead? For a charge resting on circumstantial evidence the Supreme Court in Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 have laid down the following principles:-- 'It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt has to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probability the act must have been done by the accused.'
These principles have been reiterated in (S) AIR 1955 SC 801 (supra). The circumstances against the respondents would be explainable only on one of the following assumptions:--
(a) That they were going to attend a feast;
(b) that they were going for shikar;
(c) that they were going to commit the murder of some enemy of theirs;
(d) that they had been hired by someone to commit murder; or
(e) that they were going to commit dacoity.
Incidentally, (a) and (b) have been suggested before us by their learned counsel, whereas the Supreme Court have laid down in K. N. Mehra v. State of Rajasthan, 1957 All LJ 669: ((S) AIR 1957 SC 369) that a defence suggested by counsel but not by the accused cannot be accepted by the Court, (a), (b), (c) and (d) can be rejected outright. There is not even a hint that the respondents had any friend or acquaintance who was holding a feast or had invited them. Shikar could not be possible because no one suggests the existence of any shooting area in the neighbourhood, nor did the respondents carry any knives which are so necessary for a hunter, nor could pistols be of any use in shikar. Murder presupposes some enemy, but no one has even remotely suggested that the respondents had any enemy in Hasanpur or Paswara or that there was some individual who wanted an enemy of his residing in that locality killed so as to hire murderers for him.
We are therefore left with (e) as the only solution, and we find no escape from the conclusion that the circumstantial evidence mentioned above is not in any manner consistent with the innocence of the respondents and that it unambiguously shows that 'within all human probability' they had embarked on an enterprise of dacoity, most likely in village Paswara. They had prepared themselves for this crime and had assembled for committing it. They are therefore guilty under both Sections 399 and 402, I. P. C. We should like to stress chat in reaching this conclusion we have endeavoured not to deviate from the rule that the burden of proving a criminal charge lies on the prosecution; where we might be thought to have acted otherwise we have merely followed the law as declared by the Supreme Court.
21. Accordingly we allow this appeal, set aside the order of acquittal for those offences, convict the respondents for both and sentence each of them to seven years' rigorous imprisonment under Section 399, I. P. C. and to five years' rigorous imprisonment under Section 402, I. P. C., these two sentences to run concurrently. We further direct that these sentences should commence after the expiry of the sentences which four of the respondents have been awarded under Section 19(f), Arms Act. If not already in custody, the respondents shall be arrested forthwith for serving out the sentences imposed by us.
We have no doubt from the facts and circumstancesof the case that they are members of a dangerousgang of dacoits, for which reason we refuse toshow them any leniency in the matter of punishment.