Patna High Court
Ragho Laya And Ors. vs Emperor on 23 April, 1917
Equivalent citations: 40IND. CAS.721, AIR 1917 PATNA 322
JUDGMENT Roe, J.
1. The appellants in this case have been convicted on a charge of dacoity and sentenced to five years' rigorous imprisonment in cases in which there were no previous convictions and to six years in the case of previously convicted accused.
2. The dacoity took place on the night of the 9th of April 1916 in the house of dne Hari Pado Ghose of Bhalahit. That there was a dacoity cannot be disputed. The sole point for consideration is whether it has been proved by evidence that the appellants before us were among the dacoits. The investigation was taken up by Sub-Inspector Shujan Kumar Bhattacharji on the 11th of April and no clue appears to have been obtained till the 30th of April. On that day the Sub-Inspector walking with the chaukidar saw an old convict named Dinu Mallik returning to his house at 7 a.m. with a bundle of raw lac on his shoulder. As soon as he saw the officer Dinu threw down the bundle and ran way. The officer searched his house and found nothing in it which could be connected with the dacoity under investigation but nevertheless arrested Dinu Mallik and on a statement made by him, caused searches to be made in the houses of Jitu Manjhi, and Lagwa Manjhiof Jamtara, Pahalan Goala of Aladi, Lakhiram Goala, Gobinda Rai and Bano Bagdi of Dangri; and himself made searches in the houses of Paran Goala and Ragho Laya of Jaspur. The only result of these searches was that a gathi was found in the house of Bagho Laya and that Hari Pado and his brother and another relative have identified that gathi as part of the proceeds of the dacoity.
3. On the 2nd or 3rd of May Gobinda made a statement in consequence of which the house of Manu Mallik of Palatpur was searched. Nothing was discovered, but Manu was arrested on the 6th or 7th of May and made a statement to the Police in consequence of which were found in a jungle, a mile and a half from the scene of the dacoity, traces of a cooking fire. The Sub-Inspector was also allowed to say in his evidence that Dinu Mallik and Manu Mallik had, at different stages of the investigation, pointed out to him spots at which they stood during the commission of the dacoity 20 or 30 yards from the house and also a mango grove in which it was alleged that the dacoits collected before attacking the house. Evidence was also collected to show that Gobinda Bai had been seen sitting with Manu Mallik on the outskirts of Palatpur on a date towards the end of Ghaitra and that Gobinda was in the habit of visiting Manu Mallik.
4. From the evidence of P.W. No. 11 it appears that Dinu Mallik is a cousin of Bagho Laya and often goes to Bagho Laya's house and that in Ghaitra last Paran Goala and Dinu Mallik together purchased at about besham time two handis and two other earthen pots.
5. In consequence of other information the house of Shyam Singh was searched and in a recently made hole in the floor a silk dhoti and a silk sari were discovered which have been identified as part of the proceeds of the dacoity. Dinu Mallik and Manu Mallik also made on the 8th of May 1916 statements to a Deputy Magistrate of the 1st Class which have been used as confessions. In both of their confessions occur the names of Pahalan Goala and Lakhiram Goala. It had been stated by Hari Pado that in the progress of the dacoity two of the dacoits held him down and threatened to kill him if he did not disclose the whereabouts of his valuables.
6. On the 14th of May, 12 suspected persons were mixed up with 58 other undertrial prisoners and out of these 70 persons Hari Pado identified Pahalan and Lakhiram. This exhausts the evidence in the case and upon it Dinu Mallik, Manu Mallik, Pahalan Goala, Lakhiram Goala, Ragho Laya, Gobinda Rai, and Paran Goala have been convicted of dacoity and Shyam Singh of an offence under Section 411. Even upon this bald statement of the facts it is apparent that the case against the majoirty of the accused is a somewhat flimsy case. The accused were not represented in the Sessions Court and I feel bound to say that the learned Assistant Sessions Judge would have been well advised to regard himself as not merely a machine for recording a conviction but as a Judicial Officer required to scrutinise carefully the evidence upon the record. Not one single point has been mentioned in his judgment which might tell in favour of the accused. In the first information it is stated that from the voices of the dacoits they appeared to be low caste people of the locality, Bhuiyans, Dosads or Bouris. None of the accused belong to these classes. Ragho Laya has been convicted upon the identification of a water pot found among the utensils of his house. No allusion is made in the judgment to the fact that one of the assessors recorded his opinion that it was uncertain whether this water pot belonged to the accused himself or to Hari Pado or that in the evidence of the search witness P.W. No. 9 it is admitted that when this witness went to Ragho Laya's house for a sing-song in Magh last, he saw there a gathi similar to that produced as the gathi of Hari Pado.
7. In dealing with the case against Paran, no allusion is made to the fact that the date on which the two handis were purchased by him and Dinu Mallik might be any date in Chaitra, and not necessarily the date of the dacoity.
8. In dealing with the case against Gobinda it is said in the judgment that Manu Mallik and Gobinda were frequently seen together in Chaitra last. It is not mentioned that in the evidence of P.W. No. 16 an excellent reason for that association has been given, namely, that Gobinda when he goes to Manu's village holds puja in the house of Manu.
9. In dealing with the confessions the learned Assistant Sessions Judge does not mention the fact that the statement made by Manu Mallik to the Deputy Magistrate was not a complete confession at all, but a denial that he was aware of the object of the dacoits in going to Bhalahit and a denial that he took any larger part in the dacoity than sitting at the mora of the village and receiving afterwards Rs. 5 from Pahalan; nor is it noted that the confession of Dinu gave no details whatsoever of the occurrence. His confession consists of seven lines of which four lines are names of accused, and the remainder runs baldly committed dacoity in the house of a person at Bhalahit one night about three weeks ago. They did not give me any share out of their booty; we did not beat any one." No definite finding has been recorded that the Court is satisfied that these confessions were voluntarily made.
10. I propose to deal, firstly, with the case of Ragho Laya and to enquire whether it has been established that in consequence of Dinu Mallik's statement to the Police part of the proceeds of the dacoity were found in Ragho Laya's house. The assessor Babu Damodar Lal says it is doubtful whether the gathi Exhibit 10 belongs to Hari Pado or Ragho Laya. I think this is a fair opinion, bearing in mind the evidence given by the witness who sang songs in Ragho Laya's house. It has not been established to my satisfaction that anything was discovered in consequence of any of Dinu Mallik's statements to the Police. The pointing out of a patch of ground upon which the accused sat or the pointing to a mango grove as the place at which the dacoits collected cannot be said to have led to the discovery of anything. Therefore, the whole of the statements made to the Police by Dinu Mallik are inadmissible in evidence for the reason that nothing was discovered in consequence thereof. It is to be particularly noted with regard to Ragho Laya that he was a man well known to Hari Pado and if he was taking an active part in the dacoity, I fail to see why Hari Pado should have failed to recognise him at the time of the dacoity.
11. It is next to be considered whether the identification of Pahalan and Lakhiram by Hari Pado can be said to have arisen from any statement made by Dinu Mallik when under arrest. From the evidence of the Sub-Inspector it appears that the houses of Pahalan and Lakhiram were searched in consequence of those statements, and it is certain that it was on the combined confessions of Manu and Dinu that Pahalan and Lakhiram were among those who were put before Hari Pado for an honest identification. It is alleged in the grounds of appeal that Pahalan and Lakhiram were carefully shown to Hari Pado at the Mirza thana where they were kept for 24 hours before being identified in the jail. No investigation was made into this assertion in either of the Courts below, for the reason that no mention of the fact was made by the accused before the filing of the grounds of appeal. But it is to my mind curious that the two persons identified at this honest identification were persons against whom there was no other evidence whatsoever, and if indeed, the complainant Hari Pado did see these people so clearly on the night of the dacoity as to be able to identify them more than a month later, it is curious that he should not have noticed at the time that they were not low caste Bouris, Bhuiyans or Dosads. It may be said, however, that neither Lakhiram nor Pahalan have any previous convictions and there is no reason why particular efforts should be made to implicate them in the case. My impression of the evidence against the five non-confessing convicts is that there is nothing at all to corroborate the retracted confessions as against Ragho Laya, Grobinda and Paran and that the identification by Hari Pado of Pahalan and Lakhiram is not sufficiently convincing to justify their conviction.
12. The case against Dinu Mallik I regard as extraordinarily weak. He was arrested in the first instance not on account of this dacoity but because he was obviously in a guilty frame of mind when returning to his house at 7 a. m. on the 30th of April. In his house were found a number of old boats, which I take it the Sub Inspector suspected were proceeds of other thefts, but nothing in his house was found connected with the dacoity in question. His confession is on the face of it too bald a statement to carry with it any conviction that to have made such a statement he mast have been fully aware of all the facts of the occurrence. And it was, moreover, recorded in a most slovenly fashion.
13. I have had occasion very frequently to point out that under Section 164(3) of the Code of Criminal Procedure no Magistrate shall record any such confession, unless upon questioning the person making it he has reason to believe that it was made voluntarily. It is the invariable practice of the Deputy Magistrates in this Province to ignore entirely this provision of the Code. It is considered sufficient to make use of a stock phrase which in this instance runs. "I am a Magistrate, if you want to make any statement of your own accord you may do so; do not make any statement which you have been tutored by others to make," and then follows the story of the crime without any answer whatsoever to the Magistrate's formula. To my mind a Magistrate might just as well say to the accused "hocus pocus" or "abra ca dabra." Such phrases Would be as much a compliance with the terms of Section 164(3) as the formula now in vogue. What is meant by the Code is that the Magistrate should ask the accused some such question as why are you confessing are you sorry for your crime or is it that some one has told you that you will gain something by a confession", and to refuse to proceed with the recording of the confession until he has had a satisfactory answer to his question. The attention of Magistrates has been drawn several times to this defect in their procedure but the comments of this Court have invariably been completely ignored. In my view the Local Government should take steps to see that Magistrates understand the requirements of Section 164(3) and that if Magistrates fail to observe them they are severely reprimanded. I am of opinion that none of the statements made by Dinu Mallik to the Police are admissible against him and that th6 confession which he made to the Magistrate has not been shown to be a voluntary confession. It is inconclusive of his guilt and he should be acquitted.
14. The statement of Manu Mallik is very much more full than that of Dinu Mallik, but in it Manu denies taking any part in the occurrence. He does not admit assisting in the dacoity in any way. He acknowledges only the receipt of Rs. 5 after the dacoity as the price of his keeping silence during the dacoity. The statement made to the Police that the dacoits cooked their food at a place a mile and a half from the scene of occurrence resulted in the discovery of the chulha on which the food was cooked. Even granting that the statement made to the Magistrate was voluntarily made and that it is corroborated by the discovery made by the Police with Manu's assistance, there is nothing in the statement upon which Manu can be convicted. There is no evidence on the record to show that the statement is untrue. If true, Manu was merely an unwilling witness. We may suspect that he was something more than this, but in the absence of corroboration of this suspicion, we cannot convict him.
15. The case of Shyam Lal Singh has been clearly proved by the silk articles found in his house and identified with certainty by the complainant. The circumstances in which they were concealed in his house indicate clearly knowledge that they were stolen property. I would, therefore, reject the appeal of Shyam Lal Singh.
16. I would allow the appeals of Manu Mallik, Dinu Mallik, Gobinda Rai, Ragho Laya, Lakhiram Goala, Pahalan Goala and Paran Goala and direct that they be released from jail.
Chamier, C.J.
17. I agree. The case against the men whom we are acquitting proves on careful examination of the record to be even weaker than I supposed when I first read the judgment of the Assistant Sessions Judge. I agree that a stricter compliance with Section 164(3) of the Code of Criminal Procedure should be insisted upon.