1. This is an appeal against the conviction of the five appellants named above, under Section 402, Penal Code, sentencing them each to 3 years' R.I. and to a fine of Rs. 50, and to a further term of 2 months' imprisonment in default of fine.
2. The prosecution story is that on the night intervening between 30th and 31st July 1951, the last four accused assembled in the house of accused 1 at Khokaria and made preparations for committing dacoity at Taraoli. They had in their possession guns and ammunitions for which they had no licence. Sobharam, Patel of the village, saw lamp light in the deserted house of the accused 1's brother, which is adjacent to his house. He, in the company of Sheikh Mohd., (P.W. 6) went to that house and found that all the accused were whispering. They peeped in from the house of Bakshi which is adjacent to the house in question. Soon after the accused 1 went out and returned to the room with a loaded gun and handed it over to the accused 2 to 5. After seeing this, the party returned and informed Sardar Khan, P.W. 4, about what they had seen. Some villagers were collected in his house to discuss the course to be followed. All of them decided to surround the house and to arrest the accused. But this course was abandoned on reaching the spot, as they apprehended that they will be assaulted. It was then decided to give the information to Ram Rani, widow of the brother of accused 1, about the occupation of her house by the accused at that odd hour. Kala Chamar, P.W. 9, and two other persons were sent to Kachnaria to give the information to her. She gent her servant Himmat Singh, P.W. 3, with the men who had come to call her. All these persons entered the house where the accused were found. Himmat Singh flashed his torch and found that a gun was lying below a cot on which one of the accused was sleeping. He picked it up and handed it over to Shankar. On another cot he saw one of the accused with a double barrelled gun placed by his side. He picked it up but the occupant of that cot awoke and there was a scuffle for the gun. In the meanwhile, Natha gave a lathi blow to the accused and this facilitated the snatching of the gun from him by Himmat Singh. Thereupon the villagers closed the door of the room leaving the accused therein and locked it from outside. A watch was also kept over the room during the night.
3. Shankar, P.W. 10, was sent to Berasia Station House to lodge a report about the incident. He made the report, Ex. P. 6, on 31.7.51, at about 9 A.M. Sayed Noorul Hasan, S.H.O., (P.W. 11), and his assistant Faruq Husain, accompanied by a few constables came to the village at about 10 A.M. The room in which the accused were locked was opened and the accused 2 to 5 were arrested by the Police. Accused 1 who was in his house was also arrested. The two guns, Articles A and C, which were found in the room wore seized from the possession of Himmat Singh, P.W. 3, under Ex. P. 2. Some sundry articles which were found in the room were also seized under Ex. P. 3. From the house of the accused 1 a number of articles were seized.
4. The S.H.O., returned to the station house on 6.8.1951 and recorded another F.I.R., Ex. P. 1, regarding the possession of fire arms without licence. An application was moved to the District Magistrate for permission to prosecute the accused under the Arms Act and that is Ex. P. 7.
5. The prosecution alleged that all the accused had made preparation for committing dacoity in two villages and that they were in possession of fire arms without any licence which they had obtained for facilitating the commission of the crime. A challan under Section 399, Penal Code, read with Section 19(f) of the Arms Act was put up against the accused in the Magistrate's Court who committed the case to the Court of Session for trial.
6. The learned Addl. Sessions Judge, who tried the case, acquitted the accused of the charge under Section 19(f) of the Arms Act, on the ground that it was not proved that any one of the accused was in exclusive and conscious possession of the fire arms without licence. The charge under Section 399, Penal Code, was found not proved but instead the case was found to have been proved under Section 402, Penal Code. As it is a minor offence, conviction was recorded under that section without a charge and the accused were convicted and. sentenced as stated above.
7. The question for determination, therefore, is whether the appellants had assembled in the house of Ram Rani on the night between 30th and 31st July 1951, for making preparations for committing dacoity in the two villages. The intentioned or agreement to commit dacoity must be proved, before the members of the assembly can be punished under Section 402, Penal Code. There is no doubt that it is difficult to prove the agreement by direct evidence. But the circumstances established in a case may lead to the inference that such an agreement existed. In the present case, the prosecution undertakes to prove the agreement by direct evidence and also by circumstantial evidence. It is, therefore, necessary to scrutinise both the direct, and circumstantial evidence with a view to find out whether it is consistent with the guilt of the accused.
8. There are a few fundamental questions of law involved in this appeal and it is desirable to dispose them of first. Strenuous arguments have been advanced before me on behalf of the-appellants on this point and it was urged that it goes to the root of the case and should result in quashing the conviction.
9. The investigating officer questioned the prosecution witnesses and recorded their statements-in a note book which he got signed by the various-witnesses. Thereafter he noted the summary of these statements in the police case diary. The accused had applied for the copies of the statements of the witnesses recorded by the Police during investigation but they were not supplied with them on the ground that the statements of the witnesses did not find place in the case diary at all. What was found in the case diary was only a summary of what was elicited from the witnesses during investigation. The note book in which the statements of the witnesses were recorded was said to be a document which did not form part of the investigation papers. The objection that was taken for not supplying the copies prevailed in the trial Court with the result that the accused could not avail themselves of the statements of the prosecution witnesses recorded by the S.H.O. The appellants contended before the trial Court that as their valuable right was robbed by not supplying the copies of statements to them, they have been irreparably prejudiced, as they could not effectively cross-examine the prosecution witnesses to test their veracity and credibility. The second objection that was raised by the appellants was that as the statements of the witnesses taken down in the notebook were got signed by them, the S.H.O. committed a broach of Section 162, Criminal P.C. and that made the evidence of these witnesses inadmissible. Finally, it is urged that the testimony of these witnesses should be ignored for the purpose of this case.
10. The trial Court did realize that the failure of the accused to obtain the copies of the statements of P.Ws. recorded in the notebook is a denial of the substantial right of the accused. But it did not pursue the point and failed to consider its adverse effect on the prosecution case. On the contrary, the trial Court slipped over the point by holding that the provision of Section 161(3), Criminal P.C. was substantially complied with as a gist of the statement of each witness was reduced to writing in the case diary. In the absence of the copy of the gist noted in the case diary it is difficult to say how far a strict compliance of Section 161(3) was made. As regards the obtaining of the signatures of witnesses on their statements, the Court contented itself by holding that the intention of law in prohibiting the signing the statements by witnesses is to leave them free to tell the truth in the Court of law, even if they did not disclose it to the police. The P.Ws. who were examined in the case did depart from their statements recorded in the committal proceedings which showed that they were not influenced by attesting their statements given to the police. In my opinion, this reasoning of the trial Court is not acceptable inasmuch as a mandatory provision of law has been violated without any justification. Moreover, when the statements are not before the Court, it cannot be said to what extent the witnesses stuck to their original statements given to the police when they gave evidence in the trial Court.
11. In my opinion, the trial Court did not seriously consider the effect of violating the provisions of Sections 161 and 162, Criminal P.C. These sections, in effect, contain legislative safeguards to protect an accused from overzealous and foolish action of the police and so the non-compliance of their provisions cannot be lightly treated. Furthermore, I find that the investigating officer refused to refer to the case diary when he was asked to state during cross-examination on what dates he recorded the statements of the prosecution witnesses and it is surprising that the trial Court did not compel him to do so. It is really a matter of grave concern that the police officer should refuse to answer a relevant question in a Court of law and the Court should be powerless and should not compel him to give a reply. Section 147, Evidence Act, empowers a Court to compel a witness to reply to a relevant question and it follows, therefore, that if he refuses to answer a question, immediate action should be taken against him in the interest of a fair trial. If the Court fails in its duty, it hampers the course of justice and brings the tribunal into disrepute.
12. I shall next examine Sections 161 and 162, Criminal P.C. with a view to find out what they, in effect, provide. Section 161(3) gives discretion to a police officer to reduce into writing any statement made to him during investigation by the witnesses. If he exercises his discretion in favour of reducing the statement into writing, he is bound to make a separate record of the statement of each witness whose statement he records. The matter does not rest with his discretion here. In the present case, the statement of each witness is said to have been recorded in a notebook separately and that notebook was withheld and the substance of the information supplied by the witnesses was entered in the case diary. But it is not known whether this summary was separately recorded or not. Section 162 of the Code lays down that the accused should be supplied with copies of the statements of the witnesses recorded by the police, if he asks for it. The keeping back of the notebook in which the statements of the witnesses were recorded might be an admirable piece of strategy but was positively repugnant to the law as well as spirit of the section and was wholly incompatible with the claims of justice. It is high time for the police officers to realize that the statements recorded by them, either in the case diary or separately, in the course of investigation, are not their private property but constitute an unpublished record relating to the affairs of the State, Exclusion of such statements was, therefore, repugnant to the fundamental rules of practice necessary for due protection of prisoners and the administration of criminal justice. If a particular rule has been prescribed for achieving a particular object, and that object has been defeated by a breach of the rule, it cannot be said that the accused had a fair trial. The object of the Section 13 to protect the accused both against overzealous police officers and untruthful witnesses.
13. There is no doubt that a breach of the mandatory provisions of law has been committed. But the question arises how far this breach will affect the prosecution case. In other words, whether the testimony of the prosecution witnesses should be left out of account as contended by the learned Counsel for the appellants. In my opinion, the learned Counsel for the appellants puts the effect of the non-compliance of the mandatory provisions of law much too high. The matter is encrusted with a series of judicial decisions and it may be profitable to refer to some of them with a view to find out the effect of this failure to comply with the provisions of the Criminal P.C. : In Maganlal Radhakishan v. Emperor I.L.R. (1946) Nag. 126, the Division Bench ruled that where there is a prejudice caused to the accused, the testimony of the witnesses must be received with extreme caution and the Court will be entitled to altogether ignore such evidence in a proper case. This view was reaffirmed in a subsequent Nagpur case reported in Maroti Mahagoo v. Emperor I.L.R. (1948) Nag. 110. But in Cri. Revn. No. 124 of 1948 D/- 26.8.1948 (Nag,) a Single Judge of the Nagpur High Court pointed out that where the accused was not supplied with the copies of the statements of P.Ws. and in consequence ho was deprived of the right of effective cross examination, a prejudice is caused to him, the extent of which cannot be measured. In such a case, it was pointed out that the trial was vitiated. The correctness of the view was doubted in a later case reported in Shyama Rajaram v. Emperor 1949 Nag. L.J. 315. I doubt whether in every case, irrespective of its merits, such a testimony can be left out of account, even if there is reason to believe that the witnesses are truthful. With all respect to the learned Judge who decided the above revision, I prefer to follow the Division Bench ruling in I.L.R. (1946) Nag. 126. That view has bean followed by various other High Courts in India and it is, in my opinion, not necessary to refer to the long line of judicial decisions where a similar view has been taken.
14. It would appear, therefore, that the reading of the two sections coupled with the judicial decisions does not finally solve the problem before me and. that the facts stated by the witnesses and the manner in which they were stated have to be looked into with a view to find out whether their testimony should be accepted or not. A perusal of the depositions of the various witnesses shows that they are ordinary villagers uneducated and not of a high standard of morality. They are capable of obliging the Police without caring for the truth. Apart from this, there is one more factor which makes the testimony of these witnesses of doubtful veracity. A number of these witnesses were rewarded by the State of Bhopal for their alleged excellent work in the detection of the crime and that was when the matter was sub judice in the Court of the Additional Sessions Judge. Even the Additional Sessions Judge disapproved of this action of the State of Bhopal and, in my opinion, he was justified in doing so. But he did not consider the effect of it on the credibility of the witnesses examined in the case. In my opinion, by accepting the rewards the witnesses were almost bound down to narrate what was required of them by the prosecution agency, without which, perhaps, they would have hesitated to tell untruth at the stage of trial. It is common experience that witnesses, when they come before the Court of Session and are under healthy atmosphere, tell the truth which they did not tell before. But in the present case no such opportunity was given to them and their mouths were gagged on account of the rewards they had received from high quarters. This alone is sufficient to discard the testimony o these witnesses. Apart from this, some of these witnesses made improvement over their former statements recorded in the committal proceedings and I have reason to believe that they must have considerably improved their first statements given to the Police during investigation and it is why the prosecution felt shy in supplying the copies to the accused.
15. In spite of this the prosecution witnesses did not give consistent statements on some of the vital points and exaggerated the story to a large extent. The learned Additional Sessions Judge did comment on this. This being the position, I find it difficult to place any reliance on the prosecution witnesses for the purpose of confirming the conviction of the accused with a peaceful mind.
16. Another irregularity of procedure from which the prosecution suffers is that Aziz Mohamad, P.W. 7, on his own saying, participated in the conversation that is alleged to have taken, place amongst the appellants regarding the commission of dacoity at Taraoli and Dangraoli. He had supplied meals to the four accused at the request of accused 1 and was with them for a considerably long time. The appellant 1 is said to have confided in him and the nature of the alleged conversation he had with him reveals that he was directly or indirectly concerned in or was privy to the commission of the alleged crime. This being so, his position was that of an accomplice even though ho has given exculpatory evidence from the witness-box. He was not a free man and he had the apprehension that in case he refused to oblige the Police, he would run the risk of being prosecuted with the rest of the accused. In my opinion, the trial Court was justified in treating the testimony of this witness as tainted and asking for independent corroboration of the story narrated by him. The prosecution was, in fact, wrong in examining him as a witness without following the provisions of Section 337, Criminal P.C. His testimony was thus irregularly recorded and this practice of usurping the powers of the Magistrate in breach of Section 337, Criminal P.C. is reprehensible and cannot be tolerated. His testimony reflects on the entire prosecution case. Fairness to the cause of justice should be the ideal of those who engage in detecting crimes. But very few police officers follow this high principle of justice. They care more for the success of the case they detect and do not hesitate to employ means which are unfair and prejudicial to the defence. Aziz, Mohammad has perjured himself considerably. He has contradicted himself on some of the important points, as will appear from his cross-examination. He does not appear to be a truthful witness and his testimony must be ruled out of account unless independently corroborated.
17. I shall next try to find out how far the testimony of this witness (Aziz Mohammad) has been corroborated by independent evidence, The witenesses who have been examined in the case in support of the prosecution are Sobha Ram (P.W. 1), Himmatsingh (P.W. 3), Sardar Khan (P.W. 4) Sheikh Ramzan (P.W. 6), Sheikh Mohammad (P.W. 6), Mukhtar Ahmad (P.W. 8), Kala Chamar (P.W. 9) and Shankarlal (P.W. 10). All these witnesses were handsomely rewarded and, therefore, it cannot be said that they are independent witnesses, whose testimony can corroborate the testimony of Aziz Mohammad, P.W. 7. One untruthful witness cannot corroborate another untruthful witness is a well-known maxim of the law of evidence. Apart from this, there are other reasons which shake the credibility of these witnesses. The evidence examined in the case discloses that the relation's between the accused 1 and Sobha Ram (P.W. 1) are not cordial. Similarly there have been disputes between Ram Rani and accused 1 over the property of his deceased brother. Himmatsingh (P.W. 3) is a head servant of Ram Rani. Sardar Khan (P.W. 4) and Sheikh Ramzan (P.W. 5) are related to Aziz Mohammad (P.W. 7) and Mukhtar Ahmad (P.W. 8). Mukhtar Ahmad (P.W. 8) had prosecuted accused 1 for theft of grain two years ago. Ramzan (P.W. 5) and Sobha Ram (P.W. 1) are sub-tenants of Ram Rani. Sheikh Mohammad (P.W. 6) is a history sheeter and Kalachamar (P.W. 9) is a village chowkidar under the influence of Sobharam (P.W. 1). It would appear from what has been stated above that none of these witnesses is independent and, therefore, their testimony cannot be accepted even in corroboration of the story of Aziz Mohammad (P.W. 7).
18. In case the witnesses are of undoubtful character and status, their testimony should not be discarded even if the investigating officer commits a breach of the mandatory provisions of Criminal P.C. but the witnesses examined in this case do not reach that standard, as their credibility is not of unimpeachable character. The further rule of law is that if the prosecution wants to substantiate its case on the testimony of partisan and untruthful witnesses, it reflects on the entire case and even if some of the witnesses are truthful, it is very difficult to separate the grain from the chaff and that any attempt to do so is likely to lead to injustice.
19. On behalf of the State it is urged that even if the entire evidence that has been examined in this case is left out of account, there are certain admitted facts which alone are sufficient to confirm the conviction against the accused. The learned Government Advocate has pointed out that it is undisputed that the appellants 2 to 5 were found in a room, which was deserted, at odd hours, with arms and ammunitions and other implements and that they had failed to explain why they were present at that place. Prom this he wants me to infer that the appellants had no innocent purpose to collect at the house of Ram Rani. Their purpose was, no doubt, according to him, which the prosecution stated, namely, that they were out to commit daeoity. In this connection it is desirable to point out that the accused did state the purpose for which they had visited the village. It is not desirable that the statements of the accused should be dissected and that that part which favours the prosecution should be accepted and the rest not. The whole statement of the accused is to be taken if the prosecution wants to rely on what the accused stated. This golden rule cannot be departed from and the prosecution is, in my opinion, not justified in its assertion that the undisputed facts are sufficient to prove the prosecution story. At the same time I would like to point out that the prosecution did not prove that the accused had taken precautions to come to the village stealthily and to keep their presence concealed. No evidence has been led to show that they were seen on the way to the village by anyone. There is also no evidence to show that some time before the accused 1 had a talk with Aziz Mohd., P.W. 7 and had taken him in his confidence. He also does not refer, to it. It is difficult to believe, therefore, that the accused 1 would at once open the talk regarding the nefarious purpose of collecting these men before one in whom he did not confide. The room in which the four accused were arrested at night had a lamp burning and the door was not chained from inside. They were fast asleep when they were apprehended. Even though several people went near the room to watch them, they were not disturbed which fact goes to show that they were fast asleep. As regards the finding of two guns in the room, the accused deny that they belonged to them or that they had placed them in the room. All these facts go a long way to disprove the purpose which the prosecution states, has been proved in this case.
20. When the prosecution has fudged up a case against the accused, it was not difficult to plant the two firearms in the room when its door was not chained from inside, and I see no reason why the explanation of the accused should not be accepted.
21. I will now comment on the course of events of that night as they happened. It appears to mo that it was Aziz Mohd. P.W. 7, who gave information to the villagers about the presence of these strangers in the house of Ram Rani. Thereafter a Panchayat was held in the village in the house of Sardar Khan, P.W. 4. In that Panchayat they concluded that these strangers had come to the village to commit dacoity. If that was the conclusion to which the villagers had arrived, their duty was to send an immediate report to the Police to check the commission of the crime. But instead of doing so, information was sent to Ram Rani and I find it almost impossible to see what useful purpose could be served by sending the information to her. Even though the villagers were in large number, they did not apprehend the accused immediately after the Panchayat was over. It may be that Himmatsingh, who is a servant of Ram Rani, might not have even come to the village at night. The story of the scuffle appears to me to be a myth. It is unnatural that one of the accused would beep the gun by his side on the cot in the open room and would thus give a chance to the villagers to connect him with criminal intention. Over and above this, the most unnatural thing in that the lamp was burning in the house. This alone would destroy the prosecution theory that these persons had assembled with a criminal intention in the room. Howsoever the witnesses may try their best to fasten the criminal intent on the accused, they cannot change the course of natural inference. Every story narrated should appear to be natural and if it is not so, it requires a very strong independent evidence to accept it. In the present case the story is unnatural and the evidence that has been brought in support of it is false and perjured. It is, therefore, impossible to rely on such evidence to prove an unnatural story.
22. It was further urged on behalf of the prosecution that the appellants did not lead any evidence to prove the purpose for which they had collected in the village. It should be remembered that the accused is not bound to give evidence in every case and that a Court will not be justified in drawing an adverse inference if such evidence is not adduced. The rule of law is that if the accused gives an explanation and if that explanation appears to be reasonably true, it must be accepted even if it is not proved. The position of the accused is quite different inasmuch as if the explanation appears to be reasonably true though it may not be true, the prosecution case cannot be said to have been proved beyond all reasonable doubt. When a doubt pervades, the prosecution must fail.
23. I shall next consider the ingredients of the offence of Section 402, I.P.C. Under that section, an assembly of live or more persons whoso purpose is to commit dacoity is mane punishable. From this it would appear that two things have to be established, namely, (i) an assembly of five or more persons, and (ii) the purpose of committing dacoity. In the present case, the first part can be said to have been established. But as regards the second part, there is no reliable evidence to show that the purpose was to commit dacoity. The circumstances established in the case are consistent with the innocence of the accused and if there are two hypothesis, one in favour of the accused and the other against him, the one in favour of the accused must be accepted. The learned A.S.J. seems to think that a mere assembly of five persons as proved in this case comes within the mischief of Section 402, I.P.C. He seems to forget that the purpose of the assembly must be proved like any other fact. The attempt to prove the purpose by direct evidence has failed miserably and the circumstances elicited are capable of yielding a hypothesis in favour of the accused. For these reasons I am not prepared to accept the suggestion of the prosecution that a case has been made out against the accused. Thus the most important ingredient of the offence remains unproved.
24. For the reasons set forth above, I disagree with the trial Court that the prosecution has succeeded in establishing a case under Section 402 against anyone of the accused and they are, therefore, entitled to an acquittal.
25. In the result the appeal is accepted. The convictions and sentences of the accused are set aside and they are acquitted and ordered to be set at liberty.