1. The three appellants, Bhagwat, Ram Lal and Chhangur, have been convicted by the learned Sessions Judge of Gorakhpur of an offence under Section 395 Penal Code and sentenced to five years' rigorous imprisonment each. The story for the prosecution is that on the night between 13th and 14th April 1934, some 15 or 16 dacoits armed with lathis broke into the house of Sarju and his brother Mahant, and plundered the house and beat the occupants as well as some of the neighbours. Kumar Sukhai and Sundar, who came to their help. Subsequently the dacoits made their escape, and a report was made at the t.hana 14 miles away by Mahant on the following day at 4 p.m. This report does not mention the names of any decoits who had been recognised, though Mahant stated that he could identify them if he were to see them. He added a list of property stolen, which is very insignificant, and when the investigating officer went to the village the same evening a list giving details of some more property was handed to him. An investigation followed, but none of the property said to have been stolen was recovered. The police however found out that Sarju had been threatened by Bhagwat with whom he had had a wrestling match, and after some further enquiry Bhagwat was arrested and made a confession on 2nd April. This confession is to the effect that Bhagwat had had a quarrel with Sarju over a wrestling match, and that the dacoity was planned in order to revenge Bhagwat on Sarju. Bhagwat named himself and several others, some of whom were put on their trial in this case, as having taken part in the dacoity. The learned Judge has relied on the confession and has convicted the appellants because there was, in his opinion, sufficient evidence to corroborate the confession of 'Bhagwat. The rest of those who were named by Bhagwat were put on their trial, but those against whom the corroborating evidence was considered to be insufficient were acquitted.
2. Dr. Vaish, who has argued this appeal on behalf of the appellants, has pointed out that in the report which was made at the thana by Mahant no mention is made of the quarrel over a wrestling match, and although it is stated that the dacoits could be identified Bhagwat is not named, though he was undoubtedly known very well both to Sarju and to Mahant. It is true that when he made a statement in the Sessions Court Mahant was not asked to explain why he did not mention the name of Bhagwat when he made the report at the thana. When Sarju made his statement however this difficulty about the prosecution case did occur to counsel who was cross-examining and Sarju made the following statement:
I saw the dacoits entering the house and coming out of it. I saw the faces of all the dacoits. Bhagwat broke my teeth in the dacoity. I did not say that to the Sub Inspector. I did not see Bhagwat in the dacoity for he did not (happen to come near me.
3. I have compared the statement as recorded in English with the vernacular, and there can be' No. doubt that Sarju did say, in the 'first place,' that he saw the faces of all the dacoits and that Bhagwat. broke his teeth, and that he then went to say after he had been reminded that he had not mentioned this to the sub-inspector, that lie did not, see Bhagwat in the dacoity because he did not happen to come near him. Now it is not absolutely impossible that Bhagwat should have taken part in the dacoity and yet not have been recognised by Sarju and his brother, in spite of the fact that they did recognise some of the other dacoits. But it would be very remarkable, and the statement made by Sarju in Court must arouse grave suspicion. The theory for the defence of course is that although there was a dacoity, no one was recognised and the police not being able to find the real dacoits, built up a case out of the quarrel between Bhagwat and Sarju, of which they ,heard in the course of the investigation. There is a very remarkable circumstance that, throws additional suspicion on the case for the prosecution, and that is that two other persons, Sheopujan and Jabuhans, both of whom are named by Bhagwat in the dacoity, made 'confessions' which on the face of them appear to be as voluntary and as reliable as that, of Bhagwat. Neither Sheopujan nor Jaduoans has been prosecuted in this case and although it appears that their names were included in the list of prosecution witnesses, they did not give evidence. If these two men made voluntary confessions implicating themselves and others and yet were not prosecuted, it can only have been because the prosecuting authorities had not sufficient confidence in their confessions. Yet they appear to have been made in the same circumstance as that of Bhagwat and are similar.
4. There is no doubt about the evidence of eye-witnesses who claim to have identified the three appellants among the dacoits. In the case of Bhagwat there are no less than 7. In the case of Ram Lal there are 5 and in the case of Chhangur no less than eight. The learned Sessions Judge has not made any remarks about the character of these identifying witnesses as such, and there is nothing in the report of the Magistrate who conducted the identification parade to show whether any of them made any mistakes. If they are assumed to be good witnesses, it must be admitted that there is a considerable volume of evidence to support the prosecution. Each of these three appellants however had a special mark by which his identity could be described to a witness who had not seen him and who would not therefore be able to identify him in good faith. Bhagwat himself was suffering from 'small pox' probably chicken pox, but at any rate the rash on his face was evidently a distinguishing mark, because the attention of the witnesses was drawn to it and they said that he had not these marks when he was seen at the dacoity. Ram Lal had a deformed ear and Chhangur had six fingers in his left hand and his left eye was small. It is true that Ghhangur's hand might not be visible, at the identification parade, but Sundar at any rate admitted in cross-examination that toe identified Chhangur because of his small left eye and six fingers in his left hand. It appears likely therefore that these features were shown to some of the witnesses at the time of the identification and is highly probable that they were shown to all of them, from which it follows that they may have identified him because they had been told beforehand that he had a small left eye and six fingers on his left hand, and Bhagwat similarly may have been identified because he had small pox and Ram Lal because he had a deformed left ear.
5. It is not of course always justifiable to infer that identification parades have not been conducted improperly because some of the persons who have been identified have very distinguishing marks. But where grave suspicion has been thrown on the prosecution, it is impossible to avoid the further suspicion that advantage has been taken of such distinguishing marks in order to prepare the witnesses. The learned Sessions Judge's judgment is concise and clear so far as it goes, but it does not deal with these difficulties He said:
The confession which was retracted on the alleged ground of maltreatment by the police contains details which Bhagwat alone could supply and seems to be a true statement of facts volunteered by Bhagwat himself.
6. The details which Bhagwat alone could supply were the facts that he and Sarju had had a quarrel about the wrestling match, which was the allegation made by Sarju himself, and that Bhagwat kept in the background during the dacoity, which it was necessary or at any rate very useful for the prosecution to prove in order to account for the omission of Bhagwat in the original report and in the statements recorded by the police during the first few days of the investigation. Bhagwat had to be represented as keeping in the background in order to> explain why he was not named by any of the witnesses who knew him by sight and by name, such as Sarju and Mahant. But it is curious that if he did keep in the background, he was nevertheless identified by such a large number of witnesses who did not know him by name. In short, I have not been able to persuade myself that the confession of Bhagwat is a voluntary one. There is no evidence of any maltreatment by the police nor is it necessary to assume that there was any; but it is possible that it was represented to Bhagwat that he would obtain a pardon if he made a confession. For all these reasons I think it is necessary to give the appellants the benefit of the doubt in this case, and I therefore allow the appeal, set aside the order of conviction and sentence and direct that the appellants be acquitted and released.