1. Hukam Singh, Bal Kishan, Ram Singh, Rattan, Lekhan and Prabhati alias Parshadi were tried by Shri Jagdish Chander, Assistant Sessions Judge, Delhi. They were alleged to have committed dacoity on the night between the 21st and the 22nd October, 1965, while armed with deadly weapons in the house of Neel Kanth in Radhapuri Colony, Hukan Singh, Ram Singh, Rattan and Prabhati alias Parshadi were found guilty under Section 397 of the Indian Peanal Code and each one of them was sentenced to seven years rigorous imprisonment. Bal Kishan and Lekhan were given benefits of doubt and were acquitted.
2. Four separate appeals were filed by the convicted persons, which were registered as Nos. 99, 101 and 102 of 1969.
3. It may be mentioned that on the night of the occurrence Neel Kanth was sleeping in a room of his house. His wife and their five children, including Geeta a girl of about 19 years of age, were in an adjoining room. The elder brother of Geeta, Ramesh Chander, was lying in a separate room which had no door shutters.
4. Ramesh Chander (P.W. 3), at about 11-30 in the night, heard the sound of some persons jumping over a wall of the compund. He saw that ten or twelve men were entering the verandah of the house out of whom two persons came to his room and gave lathi blows to him on his let ear due to which he became unconscious. During the trial Hukam Singh and Rattan Singh were identified by him as the persons who had entered his room. He also stated that his marriage had been fixed for November 1965 and, thereforee, sarees and jewellery has been purchased. A ring and some sarees purchased by him from his earnings were mentioned to have on them the initials of 'RC'.
5. The evidence given by Neel Kanth (P.W. 4) was that on hearing the sound of footsteps in the courtyard of his house he peeped out of a window and saw seven or eight persons in the open verandah. He asked them as to who they were to which they replied that they were police-men. Those persons were then stated to have broken open the door of his room and to have given him and his wife, who had in the meantime come there from the adjoining room, lathi blows. According to him he became unconscious and only regained consciousness on the next day in a hospital.
6. The version of Geeta (P.W. 1) was that when the dacoits broke open the outer door of her father's room four or five of them gave lathi blows to her father and two of them took out her mother in the verandah where she was caused injuries. She also stated that on being threatened she removed her Ballis (ear rings) and handed those over to the dacoits who then started removing boxes from a shelf (parchhati) in the room where she and some others had been sleeping. From her father's room a box and an attached case containing ornaments and sarees were removed. It was added by her that the dacoits also gave beating to a chowkidar who was lying outside the house and when they had left she went to Arjun Nagar for help. Someone in that colony telephoned the police and when the police arrived she made a report (Exhibit P.W. 1A) about what had happened.
7. Lajwanti (P.W. 2) wife of Neel Kanth, supported the prosecution version. According to the above-named witnesses the dacoits had torches with them in the light of which they could be seen.
8. It so happened that in connection with the investigation of some other dacoity case Inspector Bhim Singh, who in the year 1965 was posted as Station House Officer Nangloi, arrested on October 31, 1965 Hukum Singh, Ram Singh, Bal Kishan and one Ram Saran alias Ram Charan from old Delhi main Railway Station. On the same day Hukum Singh was alleged to have made a disclosure statement and then to have taken the police to village Barondi to the houses of Rattan and Lakhan. From the search of their houses certain articles were recovered including sarees. Another disclosure statement dated November 16, 1965 was attributed to Hukum Singh resulting in the recovery of one handkerchief containing certain articles from a corner of the Jhuggi of one Babu Barwaria in village Rabhupura. One of the recovered articles was the gold ring having the initials of Ramesh on it. On December 12, 1965 Hukum Singh was as well stated to have made a confessional statement before Shri Sat Narain, Sub-Divisional Magistrate, Shahdara Circle.
9. The story of Neel Kanth, Ramesh and lajwanti receiving injuries at the hands of dacoits is beyond doubt and finds corroboration from medical testimony. The only matter agitated before the trial judge and in appeals was about the identity of the alleged dacoits.
10-11. The appellants not being represented Shri Charanjit Talwar, Advocate, agreed to act as amices curiae and argued the cases with ability. It was urged by him that Hukum Singh had been tendered pardon under provisions of Section 337 of the code of Criminal Procedure which was duly accepted by him and he could not be tried jointly with the other accused. The joint trial was stated to have caused prejudice. On merits as well it was submitted the case was not free from doubt.
12. The record of the case shows that on February 24, 1966 the police had produced Hukan Singh before Shri R. Jain Additional District Magistrate, Delhi, for being tendered pardon. The Additional District Magistrate after recording the statement of Hukam Singh passed an order under Section 337 of the Code of Criminal Procedure, tendering pardon on the condition of his making full and true disclosure of the whole of the circumstances within his knowledge relative to the offence of dacoity and the offenders concerned therein whether as principals or abettors. The Additional District Magistrate had also read over and explained the order tendering pardon to Hukan Singh who accepted the pardon on the conditions contained in the order.
13. On March 1, 1966 Hukam Singh was produced before Shri Sukh Raj Bahadur, Sub-Divisional Magistrate. Sardar Bazar, Delhi, for his statement being recorded. He, however, expressed his unwillingness to make any statement. The Sub-Divisional Magistrate, thereforee, directed him to be produced before the Additional District Magistrate for 'further orders'. The Additional District Magistrate, on March 8, 1966 cancelled the pardon which had been tendered on February 24, 1966 by remarking that Hukam Singh and stated before him that he did not want to be an approver.
14. Section 339 of the Code of Criminal Procedure provides that where a pardon has been tendered under Section 337 and the Pubic Prosecutor certifies that in his opinion any person who has accepted such tender, has either by willfully concealing any facts essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter. A proviso to sub-section (1) of this section, inserted by Act 18 of 1923, enjoins that such person shall not be tried jointly he shall be entitled to plead at such trial upon he has complied with the conditions upon which such tender was made, in which case it shall be for the prosecution to prove that such conditions have not been complied with.
14A. In A. J. Peiris v. State of Madras : AIR1954SC616 Ghulam Hassan, J., while delivering the judgment on behalf of himself and Chief Justice Mahajan and Bose, J., observed that the moment pardon was tendered under Section 337 of the Code of Criminal Procedure the accused must be presumed to have been discharged whereupon he ceases to be an accused and becomes a witness. The Madhya Pradesh High court in State of Madhya Pradesh v. Dalchand Hardayal. : AIR1960MP63 held that though Section 339 does not expressly say as to how the approver is to be treated if he refused to give evidence on behalf of the prosecution impliedly it is obvious that the holding back of his evidence amounts to willfully concealing the facts which are essential for the prosecution. It was further held that an approver where he gives false evidence or is unwillling to step in the witness boz on behalf of the prosecution forfeits his pardon and can be tried for the offence in respect of which he was tendered pardon but according to the proviso to sub-section (1) of Section 339 of the Code of Criminal Procedure the approver cannot be tried jointly with the other accused in the case.
15. The learned counsel for State relied upon Emperor v. Budhan 1906 4 Cr Lj 142 and Basireddi Narappa v. Emperor Air 1924 Mad 391. In the first of the above mentioned cases an accused who had an opportunity of cross-examining the prosecution witnesses was tendered paron on condition of his making a true disclosure but after accepting that pardon he resuled to make any statement saying that he knew nothing. The Magistrate revoked the pardon and committed him to the Court of Session along with the other accused. A Bench of the Allahabad High Court held that there was no illegality in the Magistrate's procedure. In the other case the Madras High court took the view that when an accused person rejects the conditional pardon tendered to him and refused to give evidence as an approver before he is put into the box, his action does not amount to forfeiture of his pardon so as to make his case fall under Section 339 and bar his joint trial with the other accused persons. The acceptance of the pardon, it was considered, should continue in force till the accused actually gives evidence and then if he forfeits the pardon by not making a full and true disclosure of facts within his knowledge he should be separately tried.
16. With great respect, it seems to me that after insertion of the proviso to sub-section (1) of Section 339 of the Code of Criminal Procedure the view taken in the case relied upon by the learned counsel for State can no longer be accepted as laying down the correct law. The dictum laid down by their Lordships of the Supreme Court in the case of A. J. Peiris : AIR1954SC616 does not support that view. A. H. Khan, J., in the case of Dalchand : AIR1960MP63 referred to above, dissented from the case of Basireddi Narappa Air 1924 Mad 391 and in that connection made the following observations:-
'The learned Judges of the Madras High Court no doubt have taken a view that when an accused person rejects the conditional pardon tendered to him and refused to give evidence as an approver, his action does not amount to forfeiture of his pardon so as to make his case fall under Section 339, and that in the circumstances there is no bar to his joint trial with the other accused person. It seems that there was conflict of opinion as to whether an approver, who has broken the condition of pardon could be tried (for the offence for which he was tendered pardon) along with other accused or not. This controversy was resolved by the enactment of Proviso that was added to clause 1 of sub-section (1) of Section 339 of the Criminal Procedure Code in year 1923. Perhaps the attention of the learned Judges of the Madras High Court was not directed towards the proviso, which had been incorporated a few months earlier.
Moreover, in examining the dictum on merits, the view of the learned Judges that while rejecting the pardon, the accused does not forfeit his pardon, required reconsideration. If the rejection of the pardon by the approver does not amount to forfeiture of his pardon (as stated by the learned Judges of the Madras High Court) then the pardon continues and if the pardon continues, he can be tried neither jointly nor separately for any offence. Anyway, the proviso which was added to Section 339(1) by the Amendment of 1923 sets all doubts at rest and it is now clear that an approver who has resoled from his promise to make a full and true disclosure of facts within his knowledge, cannot now be tried jointly with other accused in the case.'
17. Once the pardon was tendered and was accepted by Hukam Singh he ceased to be an accused and became a witness as observed in the above referred to Supreme Court case. Thereafter he could not be tried jointly with the other accused and could only be tried for the offence in respect of which the pardon was tendered or for any offence of which he may have appeared to have been guilty in connection with the same matter in accordance with the provisions of Section 339 of the Code of Criminal Procedure.
18. Obviously the trial of Hukan Singh jointly with the other accused was against the provisions of the proviso to sub-section (1) of Section 339 of the Code of Criminal Procedure. As an alleged confessional statement made by Hukan Singh was also taken into consideration against the other appellants they were obviously prejudiced. Hukam Singh was also prejudiced by the joint trial as he was deprived of the opportunity of pleading that he had complied with the conditions upon which tender was made. The conviction of the appellants cannot, thereforee, be sustained. The appellants having already been in custody for nearly five years even a retrial would not be in the interest of justice.
19.On merits as well the case against the appellants is not altogether free from doubt. The night on which the occurrence took place was admittedly a dark one. The house of Neel Kanth had yet to be provided with electric connection and there were no other lights. The glimpses which the inmates of the houses had in the momentary flashes of torch lights, at a time when they were naturally greatly agitated, could not normally enable them to property identify the dacoits. It was probably for that reason that in the report made by Geeta only a very general description of the dacoits was given.
20. The confessional statement of Hukam Singh was recorded on December 24, 1965 by Shri Sat Narain, Sub-Divisional Magistrate. On the day Hukam Singh was arrested a disclosure statement was alleged to have been made by him which almost amounted to a full confession. If Hukam Singh was prepared to make a clean breast of everything on October 31, 1965 then it is not clear why he should not have shown his willingness to make a confessional statement before a Magistrate for about two months. At any event the possibility of the confessional statement having been made in view of some promise for tendering pardon to him can also not be eliminated. Considering all the circumstances of the case it is difficult to hold the confessional statement to have been made voluntarily. So far as identification of Hukam Singh during the trial was concerned that too, in my opinion, was not such on which a conviction may be safely based. The disclosure statement alleged to have been made on November 16, 1965, is also not free from suspicion.
21. Though Parbhati was identified by Geeta and Lajwanti but there is no other evidence to connect him with the alleged offence. The position of Ram Singh is almost similar. So far as Rattan is concerned he was not identified by any one during the identification parade.
22. The conviction of the appellants for committing dacoity along with others while being armed with deadly weapons is not altogether free from doubt. The joint trial of Hukam Singh and the other accused was also irregular and against the provisions of the proviso to sub-section (1) of Section 339 of the Code of Criminal Procedure and in the circumstances of the case has caused prejudice. The appeals are, thereforee, accepted and the conviction and sentence of each of the appellants are set aside.
23. Appeals allowed.