1. In Sessions Case No. 2 of 1966, Shri D.A. Desai, Sessions Judge, Bhavnagar, convicted the appellants for having committed an offence punishable under Sections 394, 326 read with Section 34 and Section 324 of the Indian Penal Code and sentenced them for an offence under Section 394 of the Indian Penal Code to suffer rigorous imprisonment for 7 years. No order of sentence was passed in respect of offences punishable under Section 326 read with Section 34 and Section 324 of the Indian Penal Code.
2. The prosecution case was that one Bhikha Sukha was a resident of village Khakhoi, Taluka Botad, District Bhavnagar. Bhikha Sukha had purchased vadi land bearing S. No. 60 admeasuring 75 bighas and situated in the said village. Bhikha Sukha has no child. He has a sister who was married to one Premji Prag who originally resided in village Ugamedi. Premji has four sons. After Bhikha Sukha had purchased the vadi land, he brought his brother-in-law Premji Prag and his four sons to village Khakhoi and they settled in the said village. Dharamshi and Talshi, 2 elder sons of Premji were cultivating this vadi land. In the cultivating season of 1964-65 Premji Prag and his sons had raised Juwar, Sugarcane, chillies and cotton crops in the different portion of the said survey number. The cotton crop was raised in an area of about 14 bighas which was situated on the southern boundary of the vadi land. There was a hedge on the southern boundary of this field. Premji Prag and his sons had also raised wheat crop in a tank in the village Bhimdad. Survey No. 60 abutted on the boundary of the revenue limits of village Bhimdad. Premji Prag had dug a water channel from the well in the field upto the tank and the point where the channel passed through the fence there was an opening in the hedge. Premji had engaged one Chhagan Devji as an agricultural servant since 2 years. Dharamshi, Talshi and Chhagan Devji were sleeping in the vadi during the night to keep a watch on the crop, On the date of the incident i.e. on the night between 3rd and 4th December 1965, Dharamshi, Talshi and Chhagan were sleeping in the field. Near the well there was a small shed, Chhagan was sleeping in the shed while Dharamshi and Talshi were sleeping outside in the field. At mid-night time Dharamshi, Talshi and Chhagan woke up on hearingthe barking of a dog. Dharamshi and Talshi went running in the direction from which they heard the sound. They came near the southern boundary of the field near the cotton crop. They saw one man standing near the opening of the hedge. On seeing Dharamshi and Talshi that man came near them and gave a blow with a stick to Talshi. Talshi fell down on the ground. At that time the appellants and 4 other persons were plucking cotton from the cotton crop and on seeing Dharamshi and Talshi they ran towards them and beat Dharamshi and Talshi. Dharamshi had a dharia with him and Talshi had a spade with him. Dharamshi and Talshi also hit the accused with their respective weapons. Dharamshi and Talshi fell on the ground. The accused and his companions ran away from the place of the incident. Chhagan Devji came near the injured persons. He helped Talshi to get up and Dharamshi, Talshi and Chhagan went near the well. On the way Chhagan asked Talshi as to what had happened and Talshi replied that the appellants and other accused had come to commit theft of cotton crop and that he had identified 4 of them. He gave the names of the 4 accused as Titku, Laghra, Moti and Naja. Chhagan made Talshi to sit on a cot and ran to the village to inform Bhikha Sukha and Premji Prag. He informed Bhikha Sukha and Premji Pragji that thieves had entered his field to commit theft of cotton crop and that they had caused injuries to Dharamshi and Talshi. Bhikha Sukha came to the vadi on a horse back. Dharamshi informed him in the vadi that 6 kolis of Dhankania village had come to commit theft and caused them injuries. Chhagan and Premji also came to the field. Chhagan yoked the cart and Dharamshi and Talshi were removed in the cart by Bhikha Sukha to Botad Hospital. They reached Botad Hospital at 6-30 a. m. and the injured were admitted in the Hospital. The Medical Officer sent a telephone message to Botad Police Station and informed the Police Officer in charge of the Police Station that two persons from Khakhoi had been admitted in the Hospital. Police Head Constable F.R. Zala who was in charge of the Botad Police Station on receiving the telephone message from the Medical Officer. Botad. directed Police Head Constable M.B. Zala to investigate into the matter. So Head Constable M.B. Zala went to the Hospital and contacted Dharmshi and Talshi. Before he reached the Hospital, Talshi Premji had died. Mr. Zala recorded a complaint of Dharamshi Premji and sent it to the Police Station for registering the offence. After some investigation Mr. M.B. Zala left the Hospital at about 11-30 a.m. It was further the case of the prosecutionthat the appellants who were accused Nos. 1 and 2 respectively came to the Hospital and they were also admitted therein. The Medical Officer sent information to the Police Station that two Kolis of Dhankania village with the history of assault had been admitted in the Hospital. Mr. F.R. Zala, was the Officer in charge of the Police Station. He directed Police Constable Mr. Gohil to go to the Hospital and to inquire into the matter. Mr. Gohil went to the Hospital and recorded a complaint of accused No. 1 and sent it to the Police Station for registering an offence at the Police Station. Mr. M.B. Zala who was investigating into the complaint filed by Dharamshi went to the village Khakhoi and carried out the investigation at the place. Mr. Gohil after recording the complaint given by accused No. 1 had also gone to Khakhoi for investigation. Mr. M.B. Zala had handed over the investigation to Police Sub Inspector B.T. Sama who also took over the investigation from Mr. Gohil and the investigation in both the cases thereafter was carried on by Police Sub Inspector Sama. On these allegations the appellants along with other 2 accused were charged for having conjointly committed a dacoitv and in commission of such dacoitv caused murder of Talshi Premji and thus having committed an offence punishable under Section 396 of the Indian Penal Code. They were also charged that during the course of commission of the robbery they had caused hurl to Dharamshi Premji and thus committed an offence punishable under Section 394 of the Indian Penal Code. The accused were alternatively charged for having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused were also charged for having committed an offence punishable under Section 324 read with Section 34 of the Indian Penal Code for causing injury to Dharamshi.
3. The defence of the accused No. 1 was that he had not committed any offence and he did not go to the vadi of Premji Prasji at the time of the commission of the offence. On the night of occurrence his bullock had gone away from the vadi land and, therefore, he and accused No. 2 went out in search of the bullock at night. They went in search of the bullock within the revenue limits-of village Khakhoi. When they were passing through one field two persons came there, beat them and both of them fell down on the ground. He did not know who those persons were and he did not beat them as he was not armed with any weapon He denied to have committed theft of cotton crop from the vadi of Premji Pragji. He also denied that he filed a complaint before the police in res-pect of injuries which he received on that night. He also denied that any Police Officer contacted him in the Hospital. He stated that the contents of the complaint Ex. 27 were false and that a false complaint had been got up by the police to involve him in the case.
4. The defence of accused No. 2 was that he had not committed any offence. He did not know anything about the occurrence. He stated that on the evening just preceding the night of the occurrence he and accused No. 1 had gone in search of the bullock of accused No. 1 which had strayed away. At night time when they were passing through the sim of village Khakhoi, two persons attacked them and both of them fell down on the ground. Thereafter he and accused No. 1 went to their respective houses and on the next day in the morning he and accused No. 1 went to the Botad Hospital He stated that he had not beat their assailants. He denied to have gone to the vadi of Premji Pragji and of having committed theft of cotton crop and beaten Talshi and Dharamshi.
5. The learned Sessions Judge did not accept the evidence of Chhagan Devji and held that there was no direct evidence to connect the accused with crime. The learned Sessions Judge came to the conclusion that the circumstantial evidence was sufficient to hold the accused guilty for having committed offences punishable under Sections 394, 326 read with Section 34 and Section 324 of the Indian Penal Code and convicted them as stated in the earlier part of the judgment. It is against this order of conviction and sentence that the appellants have filed this appeal.
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12. Reliance was then sought to be placed on circumstantial evidence to connect the accused Nos. 1 and 2 with the crime. The submissions of Mr. Nanavati were that the circumstances (1) that the evidence of Dharamshi. Bhikha and Premji Prag established that soon after the incident Dharamshi had informed Bhikha and Premji that six persons from Dhankania village had come to commit theft and beat Dharamshi and Talshi, (2) that the evidence of Dharamshi and Chhagan with respect to the theft of cotton crop was also supported by the evidence of Amarshi Dayal Ex. 14 and Bachu Rajabbhai. Ex. 16, the panch witnesses who proved that cotton pods were scattered in the adjoining field and heap of cotton pods was found lying hear the rivulet which was near the field of the deceased, (3) that accused Nos. 1 and 2 were found injured early in the morning on the date following the date of the occurrence, (4) that the accused No. 1 had given a complaint Ex. 27, which wasrecorded by the Head Constable Gohil wherein the accused No. 1 admitted his presence and the presence of other accused near the scene of offence at the time when the offence was committed, (5) that during the course of cross-examination questions were put to Dharamshi and Premji by the lawyer of the accused which unmistakably indicated that accused No. 1 and accused No. 2 admitted that a fight did take place between them on one side and Dharamshi and Talshi on the other during the night of the occurrence. (6) that inconsistencies in the versions of the incident given by the accused at various stages were sufficient to establish the guilt of the accused.
13. We shall now proceed to consider the submissions of Mr. Nanavati and the circumstantial evidence relied upon by the prosecution. Mr. Shethna did not dispute the circumstance that some six persons of village Dhankania had committed a theft of cotton pods in the field of the deceased on the night of the occurrence and that Dharamshi and Talshi were beaten. Similarly Mr. Shethna did not dispute the second and third circumstances mentioned hereinabove. It is not necessary for us to deal with in detail the evidence on these points. The argument of Mr. Shethna was that these circumstances were innocuous and consistent with the innocence of the accused. In our opinion there is much force in this argument and it is obvious that these circumstances are such that it cannot lead us only to the conclusion that the accused Nos. 1 and 2 were the persons who participated in the crime or guilty of having committed the offence. We then come to circumstance No. 4. We have already set out the circumstances in which the complaint was filed by the two appellants. It is well established that the statement made by an accused must be read as a whole and it is not open to the Court to dissect the statement and pick up a part of the statement which is incriminating and reject the part which is exculpatory. Accused No. 1 had stated in his complaint, Ex. 23, as under:--
'Yesterday, at 1-00 p. m. I. Koli Laghra Bhura, Koli Moti Rupa, Bharvad Natha and Bharvad Naja and younger brother of Naja, in all, we six persona had gone to collect cakes of cow dung in the sim of village Khakhoi. We had gathered the cakes of cow dungs on the south of village Khakhoi. It became dark while collecting cakes of cow dung. We tied bundles of cakes of cow dung. I, Laghra Bhura and Koli Moti Rupa were walking ahead from near the field of a Kanbi from the sim of Khakhoi. The above mentioned three shepherds were coming behind us at a distance of twenty-five paces from us with their goats. The Kanbis who are of Khakhoi, whosenames and their fathers' names I do not know. The shepherds came near their fields. Two Kanbis came out from their field. Out of two Kanbis there was a dharia in the hand of one Kanbi and there was a spade in the hand of the other. Both these Kanbis suspected that bundles would be of cotton seeds stolen from their field. So, both these Kanbis attacked on us with a dharia and spade. They hurt me on my nose. They caused hurt on the head, and on fingers of right hand and on the hand of Laghra Bhura with a dharia. I and Laghra Bhura cried that 'they killed us'. Koli Moti Rupa ran away towards Bhimdad. The three shepherds who had sticks in their hands beat both these Kanbis of Khakhoi and fell them down. We both were injured, so we fell down on that very spot. All these three shepherds -- Natha, Naja and younger brother of Najaran ran away with their sticks towards Dhankania. Koli Moti Rupa who was with us had informed to Shamji the son of Laghra Bhura, so he had come there with a cart where we had fallen down, before rising of the sun. He placed us in a cart and brought us to Sonevala Hospital at Botad for treatment and admitted us in the hospital.'
Applying the aforesaid principle that the statement of the accused must be read as a whole, it is evident that the complaint of the accused contained both inculpatory and exculpatory statements and, therefore, the complaint cannot be used to lend any support to the case of the prosecution that the accused No. 1 had committed the offence. The complaint Ex. 27 given by the accused No. 1 cannot be used as evidence against accused No. 2. Therefore, the averments made in the complaint showing the presence of the accused at the scene of the offence cannot be used as a circumstance against the accused.
14. Mr. Nanavati strongly relied on the fifth circumstance, viz., that during the course of cross-examination questions were put to witnesses Dharamshi and Premji by the lawyer of the accused which unmistakably indicated that accused No. 1 and accused no, 2 admitted that a fight did take place between them on one side and Dharamshi and Talshi on the other during the night of the occurrence. Mr. Nanavati supported this argument by drawing our attention to the cross-examination of the prosecution witnesses Dharamshi, Bhikha and Premji Prag on behalf of the accused. In the cross-examination of Dharamshi it was suggested by the lawyer of the accused that Talshi and he had severely beaten accused Nos. 1 and 2 and he was falsely implicating the accused in order to save themselves from a case that might be filed against them. A similar suggestionwas also made in the cross-examination of Premji Prag and the suggestion was as follows;
'Q: Is it true that your two sons beat accused Nos. 1 and 2 very severely outside your vadi land?
A.: It is not true that my two sons Dharamshi and Talshi severely belaboured accused No. 1, No. 2 outside my vadi. I did not come to know either from Dharamshi or from Chhagan that they had beaten the opponents. It is not true that I wanted to concoct the evidence in this case,'
In support of this argument Mr. Nanavati drew our attention to the judgment of the learned Sessions Judge and particularly to the following passages:--
'This line of cross-examination as pointed out earlier would unmistakably show that accused Nos. 1 and 2 admit that a fight did take place between them on one side and Dharamshi and Talshi on the other side during the night of occurrence. If that is proper inference to be drawn, then field of inquiry becomes very narrow. Only question then remains is whether that fight took place inside vadi land of Premji Prag or outside it If it took place inside vadi land of Premji Prag, why accused Nos. 1 and 2 came inside vadi land on the night of occurrence and that too at unearthly hour of midnight . . . .Evidence against accused Nos. 1 and 2 is that they admit that a fight had taken place between them and Dharamshi and Talshi on the other hand. The question asked in the cross-examination of Dharamshi and Premji Prag is to the effect that Dharamshi and Talshi, sons of Premji, beat accused Nos. 1 and 2 during the night of the occurrence just outside their vadi land. This question leaves no room for doubt that accused Nos. 1 and 2 admit that fight did take place between accused Nos. 1 and 2 on the one hand and Dharamshi and Talshi on the other hand. Mr. Shah had urged that statement of accused has to be accepted as a whole or has to be rejected as a whole. That principle does not arise in this case at all because I am not accepting inculpatory part of the statement and rejecting exculpatory part as inherently improbable,'
15. To put it shortly Mr. Nanavati in advancing this argument merely repeated the main ground on which the conviction of the appellants was based by the learned Sessions Judge viz., that the accused No. 1 and accused No. 2 admitted their presence at the scene of the offence and that they were beaten by Dharamshi and Talshi. If the lawyer of the accused puts a suggestion to a prosecution witness that a particular event happened, or happened in a particular manner, then it cannot be implied that the lawyer com-mits himself to such an assertion. Suggestions put in cross-examination are no evidence at all and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of a prosecution witness.
16. Moreover the lawyer who appears for the accused keeping in mind the facts of the case that he defends, has the right to take up a defence that he thinks just and proper. In Nga Ba Sein v. Emperor, 37 Cri LJ 293 = (AIR 1936 Rang 1), the facts were that the accused was charged for committing murder of his brother-in-law. The defence taken by the accused was that he had not caused the injury. In the Sessions Court the lawyer appearing for the accused openly advised his client to admit the assault and plead the right of private defence but the accused was stubborn and persisted in denying altogether his liability In the crime. The learned Sessions Judge did not allow the lawyer to take up the plea of right of self-defence and the High Court hearing the appeal observed:--
'Moreover, in this particular case it is not correct to say that the right of self-defence was not pleaded. It was pleaded by the pleader who was appearing for the appellant and if the pleader of the accused cannot set up a defence on his behalf, then I would ask what is the use of his appearing at the trial at all. The accused himself may on his own behalf take up a line of defence but it is equally open to his pleader on his behalf to take up another and alternative line of defence.'
Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the case. See Phipson's Manual of Evidence, Eighth Edition Page 134. It is, therefore, evident that the role that a defence lawyer plays in a criminal trial is that of assisting the accused in defending his case. The lawyer has no implied authority to admit the guilt or facts incriminating the accused. The argument of Mr. Nanavati that suggestion put by the lawyer of the accused in the cross-examinations of the prosecution witnesses amounts to an admission underSection 18 of the Indian Evidence Act cannot be accepted.
17. Now in the present case it is in evidence that the question that Dharamshi and Talshi had caused injuries to the appellants was even put to Premji Prag who was not an eye-witness to the incident. It seems question in form of suggestion had been put in the cross-examination of the prosecution witness for question's sake. In their statements under Section 342 accused No. 1 and accused No. 2 stated that on the night of occurrence the bullock of accused No. 1 had gone away from his yadi land and, therefore, they had gone in the search of the bullock, in the field situated within the revenue limits of village Khakhoi. When they were passing through one field two persons came there, beat them and they fell down. The accused did not know who these persons were or to which village they belonged. Thus it was not the case of the accused in their statements that they were beaten near the field of Premji Prag and at the time at which Dharamshi and Talshi were beaten. It was not their case that there was a fight between them and their assailants. The suggestions put by their lawyer in cross examination of Dharamshi and Talshi were thus not adopted by the accused in their statements under Section 342 of the Criminal Procedure Code. It is also to be noted that the attention of the appellants was not drawn while recording their statements under Section 342 of the Criminal Procedure Code to these denials of the suggestions put in the cross-examination of Dharamshi and Premji and no circumstance can be used against the accused unless he has been given an opportunity to explain the same. Thus from mere fact that suggestions were made in the cross examination of the prosecution witnesses to the effect that Dharamshi and Talshi had beaten the appellants outside the vadi land, no inference can be drawn that the accused had admitted the same.
18. There is another principle which is equally to be borne in mind that suggestions made in the cross-examination of prosecution witnesses cannot be used to fill in the gaps in the evidence of prosecution. Burden lies on the prosecution to prove the guilt of the accused. Such suggestions cannot stand higher than the statement of the accused under Section 342 of the Criminal Procedure Code. The statement of the accused under Section 342 of the Criminal Procedure Code cannot be used against the accused unless the prosecution proves its case against him by satisfactory evidence. At times it is used only to lend an assurance to the case of the prosecution case but it can never be used to fill in the gap in the evidence of prosecution.
The learned Sessions Judge was obviously, in our opinion, in error in relying on the suggestions put in the cross-examination of prosecution witnesses Dharamshi and Premji by the lawyer of the accused, accepting them as statements of the accused and binding on them, and treating the case put forward therein as a circumstance against the accused. In the present case the evidence led by the prosecution is totally insufficient to prove that the accused had committed the crime and no question of lending assurance to prosecution arises. The circumstance that suggestions were put to the prosecution witnesses in their cross-examinations that Dharamshi and Talshi beat the accused Nos. 1 and 2 outside their vadi cannot be used against the accused to fill in the gap in the evidence of prosecution.
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20. Thus to summarise the evidence on record it is clear that Dharamshi did not depose that the accused were the assailants. The evidence of witness Chhagan, as we have held, is unreliable. The circumstantial evidence as discussed above is insufficient to prove the guilt of the accused.
21. The result is that the accused areentitled to an acquittal. The prosecutionhas failed to prove that the accused wereguilty of the charge levelled against them.The order of conviction and sentencepassed by the learned Sessions Judge,Bhavnagar, in Sessions Case No. 3 of1966 is, therefore, set aside and theaccused are acquitted and ordered tobe set at liberty forthwith.