Emperor Vs. Faujdar and ors. - Court Judgment

Bennet, J.

1. This is is appeal by Government against the acquittal of three Doms, Faujdar, Sita and Balli,. of the offence of dacoity, and also-the appeal of four persons who have been convicted of the offence of dacoity Ishri Kurmi, Shiva Gobind Ahir, Damri Gond and Dudnath Dusadh. These four persons have been sentenced to six: years' rigorous imprisonment by the Sessions Judge of Ghazipur. A first report was made at 5 a. m. on 15th June 1931, at the police station, Ubhaon, in Ballia district, which stated that a road dacoity had taken place three miles away at 11 p. m. on the night of 14th or 15th June 1931. The report was made by Ramkishore Lal, the complainant, and he stated that he was going in a bullock cart along with women folk and his wife's brother Adya Prasad and three coolies from his house towards Azamgarh, and as he was passing along he met four men on the road with lathis and he spoke to then about a fire and they went on; but shortly afterwards when the cart was four furlongs from Bethara Road railway station some 9 or 10 persons attacked1 the cart with lathis and beat the-coolies, who ran away, and beat the women folk and took away three trunks, and some bundles, the stolen property being valued at Rs. 1,954. A very detailed list accompanied the first report of the property which had been stolen. The report also detailed the-injuries which had been received by the women folk and by Adya Prasad and by the complainant Ramkishore Lai, and also by the three coolies and the cartman. Medical examination was made of the injuries on these persons, which were simple.

2. The first proceeding of the police-in this case was to arrest five persons. who were enemies of the complainant and whom be suspected These five persons and 15 other undertrial prisoners were placed before a Magistrate on 30th June 1931, for identification and Ramkishore Lal and hi? mother Mt. Sukhrani and Adya Prasad picked out a number of these persons. In fact in the case of Mt. Sukhrani, she picked out no less than 9 persons, and Ramkishore Lal picked out 6, and Adya Prasad picked out three, the number of persons then suspected being only five. Subsequently the police came to the conclusion that these five accused persons had nothing to do with this offence and they were discharged. Information reached the police of this offence through the prosecution witness Mahant Sant Sewak Singh, and this witness says that one Balkishun Ahir of his village told him that he had got information about this dacoity from Ishri accused, who had taken part in it, and he repeated the information Ishri had given him. The Mahant sent for Ishri who repeated this story. The Mahant communicated this information to Ibrahim Mian and as a result Sub-Inspector Rafiullah Khan arrived on the third day of his sending the information and a search was made and Ishri took the party to his cattle-shed and gave up certain property which had been concealed in an earthen pot under some cow-dung cakes in the cattle-shed.

3. There were nine articles recovered, clothes and some silver churies and a match box, and these articles were identified as having been stolen from the complainant in the dacoity and it is not contested that they were so stolen. On the same date, 3rd July, P. W. 5, Husain, gave up a bundle of property to the Sub-Inspector in the presence of search witnesses which he said that the accused Dumri had placed with him. This also contained property stolen in this dacoity consisting of four garments. On the next day, 4th July, P. W. 13, Jebodh gave up certain property which he said was given to him by Sita accused to keep, and echu Bhar, P.W. 15, and Sukhdeo Lal, P.W. 17, both gave up property which they said Faujdar accused had given to them to keep. Confessions were recorded of Ishri, Shiva Gobind and Dumri giving a very full and detailed account of how this dacoity was committed on 8th and 10th July. A Magistrate, Mr. Shukla, was then deputed to take these people to the scene of the dacoity to verify these statements. He arrived on the scene on 18th July and he unfortunately adopted the procedure of going round with all the four accused Ishri, Dudhnath, Shiva Gobind and Dumri and also the complainant. He says that Ishri led the way and showed the different places, and the. other accused who were there corroborated what Ishri said and Ramkishore the complainant, also corroborated him with regard to the place.

4. We consider the Magistrate should have taken each accused person separately so that it would have been apparent which place each accused was-pointing out. On this date the accused Shiva Gobinda pointed out a place at a ruined house two furlongs to the south of a village, and when the place was dug an earthen pot was found. which contained five articles of clothing which have been proved to have been taken in this dacoity. (His Lordship after considering the evidence for and', against the accused proceeded). As already noted, the pointing out of property by the Doms is not in our opinion clearly proved, but the learned-counsel Mr. Jawahar Lal argued on the supposition that if we were to accept, the evidence of the Sub-Inspector on the point, this evidence would not be-admissible. The evidence of Sub-Inspector Rafiullah Khan on p. 54, line 18, is as follows:

Then Sita took us to the house of Jebodh and: he asked Jebodh to hand over -the clothes which-, he had given to him.

5. It was contended by learned Counsel that this evidence was not admissible because of the provisions of Section 162,. Criminal P.C. On the other hand it was contended that the evidence was admissible under Section 27, Evidence Act,, which states as follows:

Provided that, when any fact is i deposed teas discovered in consequence of information received from a person accused of any offence, in-the custody of a police officer, so much of such-information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

6. There is no doubt that Section 27 as-it stands does cover evidence of this nature. This has been held by a Full Bench of this Court in the case of Queen-Empress v. Babu Lal (1884) 6 All 509 by a majority of four Judges against one.. But the argument of learned Counsel is that subsequent to that Full Bench ruling the wording of Section 162, Criminal P.C. has been altered and this section now runs as follows:

No statement made by any person to a police-officer in the course of an investigation under this chapter, shall, if reduced into writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

7. The argument of learned Counsel is that under this section a 'statement by any person to a police officer' includes a statement by an accused person to a police officer, and that such ?. statement cannot be used for any purpose. Therefore he argues that a statement such as one under Section 27, Evidence Act, is now barred from being given in evidence if it is made to a police officer, and he argues that the statement would only be admissible in evidence if it was given to a person other than a police officer. There are in our opinion two defects in the argument of learned Counsel for the defence. In the first place Section 161, Criminal P.C. deals with the examination by a Sub-Inspector of any person supposed to be acquainted with. the facts and circumstances of the case. The next section in our opinion deals with the use of the statement made to the Sub-Inspector and it is not intended to include statements by accused persons. It is true that the words 'no statement made by any person' are general and if they stood alone would include accused persons, but the statements of accused persons are governed by Section 164, which follows, and there are also provisions in Sections 24-27, Evidence Act, in regard to the statements made by accused persons. Section 163 repeats certain provisions of Section 24, Evidence Act, and Section 164 makes provision for recording statements or confessions by witnesses or accused persons by Magistrate.

8. Now we have to consider whether in regard to statements made by accused persons the Criminal Procedure Code 'intended in Section 162 as amended by 'Act 18 of 1923 to alter the provisions of Section 27, Evidence Act. We consider that if the legislature had intended to alter the provisions of Section 27, Evidence Act, the legislature would have repealed that section or amended it. We do not think it at all probable that the legislature would have proceeded to enact provisions in Section 162, Criminal P.C. which would be contrary to what was laid down in Section 27, Evidence Act. learned Counsel on his {view argues that there is a contradiction between the two sections, but if we read Section 162, Criminal P.C., as not applying to the statements of accused persons there is no contradiction between the two sections. The first proviso in Section 162 deals with the calling of a witness for the prosecution, and further Section 162, Sub-section (2) deals with the provision in Section 32, Clause (1), Evidence Act, which is a provision relating to statements by a deceased person as to the cause of his death in cases in which the cause of the death comes into question. We note that in Section 162 there is a reference to two sections of the Evidence Act, Sections 145 and 32, Clause (1). Therefore in enacting Section 162, Criminal P.C., the legislature had in mind the provisions of the Evidence Act. But there is another quite separate ground which vitiates the argument of learned Counsel, that is, that in Section 1, Sub-section (2), Criminal P.C., it is provided:

But in the absence of any specific provision, to the contrary, nothing hereinafter contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

9. Now a special law is defined in Section 41. Penal Code, as a law applicable to a particular subject. The Evidence Act therefore is such a special law, as it is a law specially applicable to the subject of evidence. Section 4, last paragraph, Criminal P.C., says:

All words and expressions used herein and defined in the Indian Penal Code and not herein before defined shall be deemed to have the meanings respectively attributed to them by that Code.

10. Therefore the provision in the Criminal Procedure Code is that in the ab-sense of a specific provision to the contrary in the Criminal Procedure Code nothing in that Code shall affect anything in the Evidence Act. If therefore the legislature had desired to modify or alter the provisions of Section 27, Evidence Act, by anything provided in Section 162, Criminal P.C., the legislature would have made a specific provision to that effect. There is no such specific provision to that effect, and therefore the conclusion is that the legislature did not intend to modify Section 27, Evidence Act, by anything provided in Section 162, Criminal P.C. We are therefore of opinion that evidence of the nature stated is admissible in cases like the present. On the merits of this case we consider that Ishri, Shiva Gobind and Dumri have been properly convicted, as there is against them their own confession and evidence that they gave up property. The sentence of six years' rigorous imprisonment on these accused is not excessive, and we do not consider that there is anything in the ages of any of these accused which merits a lesser sentence. In the dacoity in question a large amount of property of nearly Rupees 2,000 was taken and a large number of people including women were injured by lathi blows.

11. Accordingly we dismiss the appeals of Ishri, Shiva Gobind, and Dumri and uphold the convictions and sentences passed upon them under Section 395, Penal Code. As regards the appellant Dudnath, he did not make any confession and no property is shown to have been produced by him or by anyone on his behalf. He was identified by Mt. Sukhrani only, but we have held that her identification evidence is of mo weight. The mere fact that the complainant pointed out in Court Dudnath as having taken part in the dacoity is of no weight. There is also no doubt about the fact that he was named in the three retracted confessions, but that alone is not sufficient for a conviction. Accordingly we allow the appeal of Dudnath and acquit him of the offence under Section 395, Penal Code, and set aside the sentence and direct that he be set at liberty. In regard to the appeal of the Local Government against the acquittals of Faujdar, Sita and Balli we consider that the evidence against them is not sufficient for conviction and we agree with the learned Sessions Judge on this point. Accordingly we dismiss the appeals against these three persons and we direct that they be released forthwith.