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Suka Misra and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal App. Nos. 8 and 16 of 1950
Judge
Reported inAIR1951Ori71
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 154, 164(2), 164(3) and 533; Indian Penal Code (IPC), 1860 - Sections 395
AppellantSuka Misra and ors.
RespondentThe State
Appellant AdvocateP.C. Chatterji and ;A.K. Das, Advs.
Respondent AdvocateB.M. Patnaik, Adv.
Cases ReferredGurubaru Praja v. The King I. L. R.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j.1. there are two appeals directed against the judgment of the sessions judge bolangir kalahandi, in sessions case no. 27 of 1949. there are three appellants in cri. app. no. 8 of 1950 and one in cr. app. no. 16 of 1950. all of them have been convicted under schedule 95, penal code and sentenced to seven years rigorous imprisonment each.. altogether twelve persons were put on trial and eight of them have been acquitted.2. the case for the prosecution is that the appellants, along with certain other persons, numbering about thirty, forcibly entered into the house of the complainant sardul nag at about 10 p. m. on the night of 4-9-48 and committed dacoity. they were all armed with thabies, knives, lathis and torches, and carried away paddy, rice, utensils, molasses, as well as.....
Judgment:

Panigrahi, J.

1. There are two appeals directed against the judgment of the Sessions Judge Bolangir Kalahandi, in Sessions Case No. 27 of 1949. There are three appellants in Cri. App. No. 8 of 1950 and one in Cr. App. no. 16 of 1950. All of them have been convicted under Schedule 95, Penal Code and sentenced to seven years rigorous imprisonment each.. Altogether twelve persons were put on trial and eight of them have been acquitted.

2. The case for the prosecution is that the appellants, along with certain other persons, numbering about thirty, forcibly entered into the house of the complainant Sardul Nag at about 10 P. M. on the night of 4-9-48 and committed dacoity. They were all armed with thabies, knives, lathis and torches, and carried away paddy, rice, utensils, molasses, as well as gold ornaments. On the next morning the complainant reported the matter to Dasarathi, Gountia of Rugurupalli, a neighbouring village and also sent word to Sribanta, Gountia of Nagapalli, another neighbouring village. Both the Gountias, along with other villagers, gathered at the house of the complainant, and thereafter Sardul Nag went to the Police Station at Sonepur and lodged F. I. R. at about 7 P. M. on 5-9.48. The Police took up investigation, recovered some properties from the houses of appellants 1, 2 and 3, viz., Suke Misra, Sabda Pujhari and Garjan Dumal (appellants in Cr. App. No. 8 of 1950) and charge-sheeted twelve persons, of whom as has been stated already-all except the four appellants were acquitted.

3. The main incident of dacoity la spoken to by P. W. 11 (the complainant), P. W. 12 (wife of the complainant), P. W. 13 (mother of the complainant), P. W. 14, Damai Gourin (an inmate of the house) and P. W. 15 (a servant of the complainant). Besides these persons, there were also in the house an infant son of the complainant, the complainant's sister and his farm servant, but these were not examined by the prosecution. The prosecution case is that some of the dacoits were known to the complainant even before the date of occurrence and that he could recognise the others by the light of the torches that they had been flashing in the course of the dacoity. The prosecution further alleged that some trails of rice were discovered along the path leading to the house of appellant 2, Subda Pujari, and some articles were recovered from his house. Appellant 4, Shyam Keot (appellant in Cr. App. No. 18 of 1950) absconded the day after the occurrence and was arrested on 27-12-48 by the Police of Binka Police Station in connection with another offence said to have been committed by him. Shyam Keot made a confessional statement on 30-12-48 which was recorded by a Magistrate examined as P. W. 10. Thus, the case for the prosecution rests on the direct evidence of the eye-witneses who were inmates of the complainant's house at the time of the incident, the recovery of some of the articles alleged to have been stolen, the confessional statement of Shyam Keot' one of the appellants. The prosecution has also relied upon a few circumstantial details.

4. The complainant alleged in the F. I. R. (Ex. 5) that as he was about to retire to bed on the night of 4-9-48, a person entered into his house and asked him for some fire and that he refused to give any fire at that hour of the night. Immediately, about 15 persons said to have been armed with knives and axes forced their way into the house and threatened to kill him. They forcibly opened the doors of the other rooms, and it is said that altogether about thirty persons committed theft of various articles belonging to the complainant. He could recognise, among them, appellant 1, Suka Misra, appellant 3 Garjan Dumal and appellant 4, Shyam Keot. The complainant gave a list of the properties stolen worth, according to him, Rs. 247. At the trial the complainant introduced an additional fact into the case, viz., that a pair of silver bangles was removed from the wrist of his infant son and that one silver bangle was removed from his own wrist. According to the evidence appellant Suka Misra snatched away some ornaments from the person of the complainant's wife while appellant Garjan Dumal removed the bangle from the person of the complainant himself. The complainant further stated that he was able to recognise Suka Garjan, and Shyam as he had known them from even before the occourrence. He knew the appellant, Sabda Pujari by sight from before, but as he did not know his name he could not mention it in the F. I. R. He identified the pots containing molasses and rice exhibited as M. O. Exs. I, II and II-A, as also the bellmetal cup (ex. v) and two small cups (Exs. IV and IV-a) which were recovered from the house of appellant Suka Misra. He was also able to identify a brass-vessel (M. O. Ex. VI), a sickle (Ex. VIII), an axe. (Ex. VII), a piece of cloth (Ex, IX) and a gold ornament (Ex x) recovered from the house of appellant 3, Garjan Dumal as his property (M. O. EX. IX) and belong to his wife, while M. O. EX. VI was found concealed inside loose paddy kept in a basket. The cloth (Ex. IX) was also recovered from inside a basket of paddy. Exhibit X was in a small box along with some other ornaments, kept concealed inside the paddy. In cross-examination the complainant admitted that he did not recognise Sabda Pujari even by face during the dacoity. He said that there were bleeding scratches on the wrist of his son, and on the ear and nose of his wife, but these were not examined by any Medical Officer. This evidence is substantially corroborated by P. W. 12, the wife of the complainant, who speaks to having recognised appellants 1 (Sukadev), 3 (Garjan) and 4 (Shyam Keot). Her evidence is chat appellant 1 was guarding her while the dacoity was in progress and later snatched away her nose-ring and ear-rings. She could identify the pots of rice and molassea, the axe, the brass vessels as well as the bundles of rice that had been recovered from the house of the appellants. P. W. 13 the mother of the complainant also speaks to the dacoity having taken place that night, but could not recognise any of the persons who have alleged to have taken part in it. P. W. 14 recognised appellants 1 and 3 as having participated in the dacoity and further speaks to the removal of the nose-ring and ear-rings from the person of P. W. 12 by appellant 1. P. W. 15 speaks to the main incident of the occurrence and swears that appellant & was the first person who came to the house and asked for some fire. He also recognised appellants 1 and 3, among others, as having entered into the house. He corroborates the other witnesses in saying that appellant 1 removed the nose and ear-rings from the person of P. W. 12 and that appellant 3, Garjan, removed the bangle from the wrist of the complainant. P. Ws. 16 and 17, the two gountias of neighbouring villages, who arrived at the house of the complainant early next morning, speak to having seen traces of rice scattered all over the house and also prove the statement made by the complainant to them about the dacoity that took place in his house the previous night. These two gountias were present at some of the searches effected by the Sub -Inspector of Police (P. W. 18). P. W. 8 is a Punch member of Kirtipur, a village within about a mile of the place of occurrence. He was watching his ground-nut crop in his field adjoining the road leading to the complainant's house and saw the appellants in the company of several others going towards that house. On his enquiry one of them is alleged to have told him that they were going to the mango grove at Rugurupalli for gambling. This witness identified appellants 3 and 4 among the persons whom he saw that night, P. Ws. 1 to 3 were present at the search of the house of appellant 2 and prove the search lists Exs. 1 and l-A. P. Ws. 4 and 5 prove the recovery of articles from the house of appellant 1 and also prove the search lists Ex. 1. B. P. Ws. 6 and 7 are the witnesses to the search of the house of appellant 3, Garjan, and prove search list Ex. 1-C. There can therefore be no doubt on the evidence that a dacoity was committed at the house of Sardul Nag on 4-9-1948 between 9 and 10 P. M. In fact this has not been seriously challenged by the appellants.

5. Mr. Chatterji, learned counsel for appellants 1, 2 and 3, contends that the evidence against these appellants is not sufficient to justify their conviction for the offence of dacoity and that the articles alleged to have recovered from their houses are of such common use that their identification by the complainant cannot, in any sense, be deemed as conclusive. On behalf of appellant Shyam Keot, it is urged that his confessional statement is not admissible in evidence as it has not been satisfactorily proved that the confession was made voluntarily. And finally it is contended that there can be no conviction for dacoity, as less than five persons have been found guilty, the other having been acquitted.

6. The case against appellant l, Sukadev Misra, rests on the oral evidence of eye-witnesses, viz., P. Ws.), 11, 12, 14 and 15. He is the person, according to the evidence of these witnesses, who removed the ornaments from the parson of P. W. 12. He was known to the complainant even before the date of the occurrence and was, in fact, named in the F. I. R. as one of the persona who took part in the dacoity that night, The utensils recovered from his house were identified by the complainant and other inmates of the house and there is no person to disbelieve them. Whatever may be said with regard to the identity of the pitcher of molasses, we are of opinion that the identification of the brass vessels, at any rate, stands on a different footing and we are inclined to accept the evidence of P. Ws. 11 and 12 on the point as reliable. It is argued that the F. I. R. is silent on the point as to whether the appellant removed the ornaments from the person of P. W. 12. No doubt the F. I. R. does not furnish this detail, but it mentions not only about the loss of gold ornaments but also gives a description of the articles lost, in the list. It is not necessary that the F. I. R. should specify every little detail and describe the specific part played by each one of the dacoits, when so many of them entered into the house and committed theft. We are accordingly satisfied that the appellant Sukadev Misra has been rightly convicted as the offence has been brought home to him.

7. The appellant Sabda Pujari was not recognized by any of the witnesses nor was his name mentioned in the F. I. R. The only evidence against him is that Borne rice and a pitcher of molasses were recovered from his house and that a trail of rice was found leading to his backyard. This evidence is of a weak character and is not sufficient to support his conviction. His name, doubtless, figures in the confessional statement of appellant Shyam Keot, as one of the participants in the incident, but in the absence of any substantive evidence against him we are not disposed to place any reliance on the statement made in the confession of Shyam Keot and uphold Sabda Pujari's conviction. He is accordingly given the benefit of doubt and acquitted.

8. Appellant 3 Garjan Dumal, has been named in the F. I. R. and has been identified by P. Ws. 11, 12, 14 and 15. P. W.s also speaks to his presence among the persons who were going in the direction of the complainant's house that night. The brass-pitcher, the axe, the sickle, the cloth and nose-ring belonging to P. W. 12 were all recovered from the house of this appellant. The brass pitcher and the gold nose-ring were found concealed inside the paddy. It is contended on behalf of this appellant that the gold no3e-ring was found broken and its identification therefore could not have been satisfactory. The description of the nose-ring has been given in the F. I. R. as Magar Muha with Red Stone. The article was produced in Court and the appellant, if he liked, could easily have established that it did not answer the de3cription given in the F. I. E. Nothing of the kind was done and it is too late now to complain in the appellate Court that the identification of the nose-ring could not be accepted. It is further pointed out that, according to the evidence, appellant 1 removed the gold nose-ring from the person of P. W. 12 and that he also removed the silver bangle from the wrist of P. W. 11, but that the silver bangles alleged to have been removed by him have not been recovered. The recovery of the gold nose-ring alone from the house of this appellants, however, not inconsistent with its having been removed by one of his associates who participated in the dacoity. It may be that this article fell to the share of appellant Garjan or that it wa3 left in his custody as it is said that his father is a man of some means in order to divert suspicion. We are, therefore, not prepared to accede to the contention raised on behalf of this appellant and to discard the identification made by P.W. 11 as unreliable. The oral evidence against this appellant is almost overwhelming and he has been rightly convicted and we see no reason to interfere.

9. The case against appellant Shyam Keot rests on the oral evidence of P. Ws. 11, 12 and 15. He is said to have been known to the complainant from his childhood. It was this appellant who appears to have entered into the house of P. W. 11 on the pretext of asking for some fire. His name is mentioned in the F.I.R. P. W. s also speaks to his presence in the company of persons proceeding towards the house of the complainant on the night of 4-9-1948 when he was watching his ground-nut crop. This appellant, as stated already, absconded immediately after the occurrence and was arrested three months later by the Binka Police. Three days after his arrest, he made a confessional statement, which was recorded by a Magistrate (P. W. 10) under Schedule 64, Criminal P. C. In that statement ha said that he went to Rugurupalli along with appellant 1, appellant 2 and some others, and carried away articles from the house of the complainant, that these articles were kept in the house of appellant 2, Sabda Pujari, and that he was advised by appellants l and 2 to make himself scarce and that he, therefore, left the village and absconded. He states that he joined in the dacoity as he was asked to do so by the persons named by him. In his examination by the Committing Magistrate he repeated the above statements and added that he was asked by appellant Garjan and another parson, about the evening of that day, viz., 4-9-1948, to go to Banjipalli. There were others assembled at that place. Suka Misra and others were present at the house of Sabda Pujari. Others were in front of his house :

'All said : 'Let us go and commit dacoity'. I said : 'I am afraid as I have no previous experience'..... Keot .... were present .... We brought all the articles from there and kept them in the hou3e of Sabda Pujari. They told me to go away to Bargarh side and that they would look after my maintenanoe. I went to Barmarh. I came home and went to Seli to my aunt's house.....'

When he was questioned whether it was a fact that he asked Sardul (the complainant) for some fire that night, he said he did not ask him for any fire but that he was in front of Sardul's house. He further said that he did not take a pie towards his share. In the Sessions Court he said that his statement before the committing Magistrate had been correctly recorded and added that as be was heavily drank he lay under tree in Banjapalli and that the others went to commit dacoity leaving him behind. He named the appellants as those who went to participate in the dacoity. He also says that he made the confession as he was threatened by the Police with assault.

10. The Magistrate who recorded the confessional statement of appellant, Shyam Keot deposed as P. W. 10 that be gave the necessary warnings and explained to the accused that he was not bound to make any confession and that he should not confess even if ha was required to do so either by the police or any other person, and finally that his confession would be used as evidence against him. P. W. 10 also gave evidence to the effect that no police officer was present at the time of his recording the confession and that he was satisfied, in the circumstances, that the confession made to him was voluntary. The witness did not ask the accused why he was making a confession as he was satisfied about the voluntary character of the confession. In cross-examination P. W. 10 admitted that he did not caution the confessant that his confession would be used against him even if he retracted it later, though he repeated that he was satisfied from the answers given to his questions that the accused was confessing voluntarily. The learned Sessions Judge, however, held the confession to be inadmissible on the ground that the record made by the Magistrate (P.W. 10) did not show that the statement was voluntary, and particularly because the accused was not asked that the confession, oven if retracted later, might be used against him, and relied upon the observations of the learned Chief Justice in Gurubaru Praja v. The King, I. L. R. (1949) 1 Out. 207 : (A. I. R. (36) 1949 Orisaa 67 : 51 Cr. L. J. 72). In that case it was established that the accused had been in Police custody for over a fortnight and that he was given 2 1/2 hours time for reflection before his confession was recorded. The learned Chief Justice, delivering the judgment of the Court, observed that in the circumstances of that case the Court was not satisfied that the confessional statement, as recorded under Schedule 64, Criminal P. C., was admissible in evidence. The accused in that case repeated his statements before the Committing Magistrate, but that was not read out and explained to him either by the Committing Magistrate or by the Sessions Judge and on that ground the statements were excluded from consideration. After having thus ruled out the statements of the accused, his Lordship proceeded to summarise the principles of law that should guide a Magistrate in recording a confession under Schedule 63 and made a few general observations. The decision of the case itself proceeded entirely on the evidence of P. Ws. 2, 3 and 4 and as their evidence was found acceptable the conviction of the accused was upheld and the appeal was dismissed. It is, therefore, clear that the observations made by the learned Chief Justice in 'Gurubaru Praja v. The King, I. L. R. (1949) 1 Cut. 207: (A. I. E. (36) 1949 Orissa 67: 51 Cr. L. J. 72) regarding the procedure to be followed by a Magistrate acting under Schedule 64, Criminal P. C. were not necessary for the decision of the particular case and did not form a part of the ratio decidendi, The actual decision is not of much importance and most of the observation in the judgment-and much that is of interest in it-is obiter. It does not appear to have been realised that the principle of a case is limited to the sum of ail the facts held by the Court to be material in that case and all observations of a general nature are merely obiter. The distinction between what is rationis and what is mere obiter should always be borne in mind when following a precedent. It is often embarrassing to the Subordinate Courts even to ignore what is palpably obiter when a case is cited before them. But it must always be remembered that it is the abstract ratio decidendi, which alone has the force of law. The only thing, says Sir George Jessel in Osborne v. Rowlett, (1880) 13 ch. D. 774 at p. 785: (49 L. J. Ch. 310), in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case is decided. Courts of Justice, therefore, take care, in their formulation of principles, to limit themselves to the requirements of the case in hand and shrink from laying down any principle which is wider than is necessary for the purpose of the case. The prerogative of Judges is not to make law by formulating and declaring it-this pertains to the Legislature-but to make law by applying it. A judicial declaration unaccompanied by a judicial application is of no authority, as Salmond puts it. The precautions that a Magistrate acting under Schedule 64, Criminal P. C., has to take by warning the accused before recording his confession are prescribed in the Code itself in Schedule 64(3). A mere failure to record all the questions he puts to the accused does not necessarily entail the rejection of the confession as inadmissible. For, Schedule 33 of the Code provides for evidence being taken that the statement was duly made. Any further precautions prescribed by judicial decisions can have no statutory authority and are intended only to serve as rules for the guidance of the recording Magistrate. In matters of procedure, it is essential that the rules must be certain rather than wise, flexible rather than complete. 'Whether a confession has been properly recorded or not must, therefore, be left to be decided by the Judge before whom it is tendered as evidence. Whether it should be accepted or not will depend upon the wisdom and understanding of the Trial Judge who knows the essentials of a fair trial In the web of human affairs, it will be a futile task to attempt to reduce those conditions to a mathematical formula. The learned Sessions Judge-in more cases than one that have come up before this Court-has rejected the confessions as inadmissible on the only ground that the confessant was not asked why he was making a confession and that he was not told that it may be used as evidence against him, even if retracted later. The evidence in the case before us clearly shows that the Magistrate warned the accused that his statement may be used against him; he did not go further and add that it may be so used even if the confession is retracted. I cannot see any logic or reason for a further warning anticipating a retraction of the confession. Nor can I appreciate the need for asking the accused about the motive for making a confession. He may have several or he may have none. The simplest motive is that it is most natural for a guilty person to lift a load off his mind by making a clean breast,.because truth is natural and dissembling is difficult. Some people confess because they prefer jail life to normal life. The law does not require the motive to be elicited. The only requirement laid down by the law is that the confession should be free from the blemishes of compulsion, inducement, throat or promise. If the recording Magistrate is satisfied that the confession is not tainted by any of these vitiating factors he is entitled to presume that the confession is voluntary. Whether, however, the confession made to him is true or not will be for the trial Judge to decide. Having regard to' the language of Section 163 (2), Criminal P. C., which says that

'no police officer or any other person shall prevent, by caution or otherwise, any person from making..... any statement which he may be disposed to make of his own tree will'

I am inclined to think that too much of questioning by the Magistrate or too many warnings administered by him may amount to dissuading the accused from making a confession. Under Schedule 64 (3) he called upon to 'explain' to the accused that he is not bound to make a confession and that it may be used against him. If, after this explanation, the Magistrate is satisfied that the accused is disposed to make a statement of his own free will, he is under no further obligation to give any further caution; in fact he would be violating Section 163 (2) were he to do so. Ordinarily, Magistrates of the First Class record confessional statements of accused persons and there is no reason to presume that they cannot make up their minds, after putting a few questions, whether a person is making a confession voluntarily or under duress. I do not think therefore that it is possible to prescribe any litmus paper test for determining whether a Magistrate had reasons to believe the voluntary character of a confession made to him. That any such attempt is bound to fail is demonstrated in this very case itself. The appellant not only made a confessional statement but stuck to it in the committing Court and more or less stood by it also in the Court of Session although he attempted to water it down. To reject the confession in such a case would result in a mis carriage of justice. I have, therefore, no hesitation in holding that the learned Sessions Judge was in error in ruling out the confessional statement of appellant Shyam Keot, Under Section 164, Criminal P. C, as inadmissible.

11. The last point urged for the appellants is that the conviction under Schedule 95, Penal Code, for the offence of dacoity cannot stand as the eight persons, along with the four appellants have been acquitted. Mr. Chatterji relied upon the oases reported in Emperor v. Ikram-ud-din, 39 ALL. 848 : (A. I. R. (4) 1917 ALL. 173 : 18 Cr. L. J. 491), Girdhar v. Emperor, A. I. R. (14) 1927 Lah. 519 : (28 Cr. L. J. 547) and Abbas Ali v. Emperor, A. I. R. (15) 1928 Mad. 144 : (29 Cr. L. J. 5).

12. In Emperor v. Ikram ud-din, 89 ALL. 348: (A. I. R. (4) 1917 ALL. 173: 18 Cr. L. Schedule 91), the trial was by Jury and the conviction was set aside on the ground that the legal definition of what a dacoity is was not explained to the Jury. In Girdhar v. Emperor, A. I. R. (14) 1927 Lah. 519 : (28 Cr. L. R. 547), there were four persons charged for dacoity and one of the alleged dacoits was examined as an approver. The Sessions Judge definitely held that two of the accused were not concerned in the offence and convicted the other two under Schedule 95, Penal Code. Following the rule in Rex v. Plummer, (1902) 2 K. B. 339: (71 L. J. K. B. 805), a single Judge of the Lahore High Count held in that case that the conviction for dacoity was bad. The case reported in Abbas Ali v. Emperor, A. I. R. (16) 1928 Mad. 144 : (29 Or. L. J. 5) is really against the point urged for the appellants. In that case three known and named persona were charged with two other unknown men. Of the three persons charged one was acquitted and the other two were convicted of dacoity. A Division Bench of the Madras High Court held that the conviction was not illegal.

13. The learned Assistant Government Advocate appearing for the State drew our attention to the case reported in Kapil Deo Singh v. The King, 1950 S. C. 3. 143 : (A. I. R. (37) 1950 F. C. 80 : 51 Cr. L. J. 1051) which was a case under Section 147, Penal Code. He also cited the case reported in Bashid-uz-Zaman v. Emperor, 12 Or. L. J. 193 : (10 I. C. 684 Cal). It is a Division Bench case of the Calcutta High Court where their Lordships held that though all the persons charged were not convicted, it would not affect the question regarding the number of persons engaged. Plummer's case, ((1902) 2 K.B. 339 : (71 L. J. K. B. 805) was not followed as it related to a case of conspiracy. The last case relied upon the learned Assistant Government Advocate is Mohd. Ahsan v. Emperor, A. I. R. 417) 1930 Lah. 263 : (31 Cr. L. J. 112). This was a Division Bench case and Tekchand J., who delivered judgment in Qirdhar v. Emperor, A. I. R. (14) 1927 Lah. 519 : (38 Cr. L. J. 547) was a party to this judgment. In this case the identity of four out of five persons was established, while the fifth man remained unidentified. It was held that the conviction of the four accused under Schedule 95, Penal Code, was correct though it was not possible to trace and identify the fifth man.

14. The preponderance of authority, therefore, is against the contention raised on behalf of the appellants. I have accordingly no hesitation in overruling that contention.

15. In the result the conviction and sentence of appellants Sukdev Misra, Garjan Dummal, and Shyam Keot under Schedule 95, Penal Code, are upheld and their appeals dismissed. We give the benefit of doubt to appellant Sabda Pujari and acquit him. The sentence of seven years rigorous imprisonment is, however, reduced to five years rigorous imprisonment in the case of appellants Sukdev Misra and Garjan Dummal, and to four years rigorou3 imprisonment in the cage of appellant Shyam Keot as he has already been in Jail trial for over a year and a half.

Jagannadhadas, J.

16. I agree with my learned brother that the conviction and sentence of the appellants Sukdev Misra, Garjan Dummal, and Shyam Keot, should be upheld and that the appellant Sabda Pujari should be given the benefit of doubt and acquitted.

17. I wish, however, to say that I am not satisfied that in the circumstances of this case the conviction Under Section 395, Penal Code, was correct. In the Sessions Court twelve persons were put on trial. Eight out of them have been acquitted by the Sessions Judge and we have given the benefit of doubt to another so that in the result only three out of the twelve persons are convicted. As the offence of dacoity requires the conjoint participation of five persona, the question has been raised before us that the appellants can be convicted only of robbery under Schedule 92. It is no doubt perfectly true that, in spite of the acquittal of a number of persons, if it is found as a fact that along with the persons convicted there were other unidentified persons who participated in the offence, bringing the total number of participants to five or more, the conviction of the identified persona though less than five is perfectly correct. But the difficulty in this case is that certain named twelve persona were charged with having committed dacoity by conjointly doing various acts. The charge does not say that these twelve persons along with other unidentified persons committed the dacoity conjointly. If, therefore, 9 out of 12 parsons are acquitted, the question arises whether the remaining three can be said to be conjoint participants with another two or more persons not identified. Is the Court to find that some persons outside the individuals charged participated or some out of the very persons charged but acquitted? To find the former is to give a decision on a fact of which the accused have no notice through the specific terms of the charge. To find the latter is to assume that some of the very persons that have been acquitted by giving the benefit of doubt have, in fact, been the participants, I find difficulty in arriving at either of these conclusions. Certain oases bearing on this matter have been brought to our notice. The cases in Rashid-uz-Zaman v. Emperor, 12 Cr. L. J. 193 : (10 I. C. 684 Cal), Narayan Dinba v. Emperor, 47 Cr. L. J. 3. 832 : (A. I. R. (34) 1947 Nag. 67) and Mohd. Ahsan v. Emperor, A. I. E. (17) 1930 Lab. 263 : (31 Cr. L. J. 112) have been cited in favour of the legality of a conviction under Section 395 under such circumstances; while Emperor v. lkram-ud-din, 39 ALL. 348: (A. I. R. (4) 1917 ALL. 173; 18 Cr. L. J. 491), In re Koila Thevan, 11 Cr. L. J. 249 : (6 I. C. 797 Mad.), Girdhar v. Emperor, A. I. R. (14) 1927 Lab. 519 : (28 Cr. L. J 547) and Abbas Ali v. Emperor, A. I. R. (18) 1928 Mad. 144 : (29 Cr. L. J. 5) have been shown to us as being against the propriety of such a conviction. It has also been said that Kapil Deo Singh v. The King, A.I.R. (37) 1950 S. C. 80 : (1950 S. C. 3. 143 : 51 Cr. L. J. 1057) concludes the matter. I am not satisfied that it does. I do not propose, however, to go into this matter at any length for the purpose of this case and to dissent from the view taken by my learned brother that the conviction under Schedule 95 is to be maintained in this case. For even if I held that the appellants other than Sabda Pujari were to be convicted only under S. S92, I should not have been inclined to reduce the sentences beyond what has been indicated in the judgment of my learned brother.

18. I desire also to add that I propose to express no opinion, in this case, as to the correctness of the observations in the ruling reported in Gurubaru Praja v. The King I. L. R. (1949) 1 Cut. 207 : (A. I. R. (36) 1949 Orissa 67 : 61 Cr. L. J. 72) and as to whether or not they are obiter because I am satisfied that even if the confession of the appellant Shyam Keot is excluded, as the learned Sessions Judge has done, the evidence of P. Ws. 11, 12 and 15 is quite sufficient for his conviction.


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