Patna High Court
Md. Yunus And Ors. vs The State Of Bihar on 29 July, 1976
Equivalent citations: 1977CRILJ1243
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. These are five appeals on behalf of the five accused persons, who have been convicted at the same trial on charge of conspiracy and arson. The appellants in Criminal Appeals Nos. 185 of 1969, 187 of 1969, 195 of 1969 and 199 of 1969 have been convicted Under Section 120-B read with Section 436 of the I. P. C. and sentenced to undergo rigorous imprisonment for 10 years. They have also been convicted under Rule 41(5) of the Defence of India Rules, 1962 (hereinafter referred to as 'the Rules') and sentenced to undergo rigorous imprisonment for five years, by the Second Additional Judicial Commissioner of Chotanagpur at Ranchi. So far as the appellant in Criminal Appeal No. 210 of 1969 is concerned, he has been convicted Under Section 436 as well as Under Section 120-B read with Section 436 of the I. P. C, and sentenced to undergo rigorous imprisonment for 10 years under each count. He has been further convicted under Rule 41(5) of the said Rules and sentenced to undergo rigorous imprisonment for 5 years. However, the sentences of all the appellants have been directed to run concurrently. As common questions of law and facts are involved in all these appeals, by consent of the parties, they have been heard together and are being disposed of by a common judgment.
2. The prosecution case, in brief, is that these accused persons along with several others, had entered into a conspiracy in between February, 1964 and December, 1964, to blow up the Batia Plant, an important industrial complex of India at Ranchi. In the night of 10-9-1964, smoke had been coming out of the Exhaust Store Shed in E shed at about 1.45 A. M. One Balesihwar Mahto (P. W. 31), a constable who had been on duty, raised alarm and other guards reached there. They discovered that fire was burning in 10 or 12 crates of valuable machineries kept in the E Shed. The key of the Shed was missing and ultimately the lock of the Shed was broken and with the help of the Fire Brigade, it was extinguished. Due to the fire, about six crates containing electrical goods and machineries imported from outside India were destroyed causing a loss of rupees eight lacs. A first information report was lodged in respect of the said incident Under Section 436 of the I. P. C. against unknown persons. The case was investigated by A. K. Biswas (P. W. 42), who, during investigation, found some burnt match sticks near the stores aforesaid, Marks of violence were also found on the shutters. Again on 24-12-1964, at about 5 P. M. constable Lachhi Ram (P. W. 33) saw smoke coming out of crate in 0.7 building and he raised alarm. The Fire Brigade was informed. P. W 46, the Offi cer-in-charge, Hatia Police station, reached the spot and on inspection found partly burnt cotton waste soaked in something like kerosene oil at a distance of about 11/2 from the bottom of the affected crate. During the course of investigation, Sri R. D. Singh (P. W. 46) came across three persons, namely, Chambar Singh (P. W. 2), his sister Salmi Reza (P. W. 14) and one Basirul Haque (appellant in Criminal Appeal No. 210 of 1969), who were working in that building near the affected crate immediately before the smoke had been seen. It was found that these persons were working till 4.30 P. M. inside the building 0.7 with cotton waste, blown lamp with kerosene oil, matches and solder drops at that time. Salmi Reza and Chamar Singh stated before him that Basirul Haque, the appellant on pretext of making water, went near the place of incident and, thereafter, an alarm of fire was raised. Thereafter, Basirul Haque, the appellant, was tackled by the Investigating Officer and he ultimately pointed out to him the place where they were working. There waste cotton, jute, piece of solder, drop of Ranga were found at the spot which were seized. The accused Basirul Haque was arrested on 27-12-1964 and he made a judicial confession, which was recorded by Shri K. K. P. Sinha (P. W. 27), Subdivisional Officer, Ranchi Sadar, on 5-1-1965. As a result of the confession made by the accused Basirul Haque, the names of other accused, namely, Ali Hassan, Nisar Ahmad came to light. AH Hassan, the appellant in Criminal Appeal No. 195 of 1969, was arrested on 2-1-1965 and he made a judicial confession on 8-2-1965 which was recorded by Sri N. K. Sharma (P. W. 30), Magistrate, First Class, Ranchi. Nisar Ahmad, the appellant in Criminal Appeal No. 199 of 1969. was arrested on 2-3-1965 and he also made a judicial confession which was recorded by Sri N. K. Verma (P. W. 28), Magistrate, First Class, Ranchi on 9-3-1965. During the course of investigation, the Investigating Officer contacted one Syed Sayeeduddin (P. W. 1) at Delhi and he made a confession regarding his complicity in the conspiracy for attaining the aforesaid object. The confession was recorded by Sri V. K. Bhalla (P. W. 15), a Magistrate, First Class, at Delhi. According to the prosecution, after communal riot at Jamshedpur and Rourkela, which took place in March and April, 1964, some of the Muslims of Heavy Engineering Corporation and Ranchi had organised a secret organization at Ranchi which was named as 'Khufia Tenzeem'. The president of the said organisation was appellant Nisar Ahmad. Its Secretary was appellant Ali Hasan. Accused Md. Yunus, appellant in Criminal Appeal 185 of 1969, was its member. The members of the said organisation had a feeling that the Muslims have no place in India and one day or other they have to leave this country and go to Pakistan, but before that, they wanted to damage the industrial concerns of India, particularly the Heavy Engineering Corporation, to create chaos and disorder and to cause destruction of the economic condition of India. This was for the purpose of taking revenge of the communal trouble. The aforesaid Syed Sayeeduddin (P. W. 1) was proprietor of Paramount Travel Service, Juma Masjid, Delhi. He was known to some officers of Pakistan High Commission in New Delhi. In August, 1964, appellants Nisar Ahmad and Ali Hassan went to Delhi and met Syed Sayeeduddin (P. W. 1) and they were taken to the office of Pakistan High Commission by P. W. 1. There they contacted one Gulam Ahmad, Second Secretary to the Pakistan High Commission and one Asik Khera. Gulam Ahmad paid Rs. 5.000/- for the aforesaid purpose.
3. After investigation, charge sheet was submitted against 13 persons, including these appellants and aforesaid Syed Sayeeduddin and they were summoned to stand the trial. During the pendency of the commitment proceeding before the Magistrate at Ranchi, Syed Sayeeduddin was given pardon under Section 337 of the Cri. P. C., 1898 (hereinafter referred to as 'the Code'). At the trial, he was examined as an approver. Some of the accused persons, who had been summoned to stand trial, were discharged by the committing magistrate, and on revision being filed on behalf of the State, the Judicial Commissioner directed three, namely, Abdul Quayum, Md. Moin and Badruddin, out of the persons who had been discharged, to be put on trial, but they absconded and they have not been arrested thereafter.
4. The defence of the accused persons at the trial was that they have been falsely implicated in the case. The accused persons, who had made confessions, purported to retract the same and have characterised Syed Sayeeduddin (P. W. 1), the approver, as an unreliable witness. Learned Additional Judicial Commissioner, on a consideration of the evidence on the record, however, came to the conclusion that the evidence of P. W. 1 can be accepted as it is corroborated by other evidence on the record, and on the basis of the said finding he convicted the appellants under different sections of the I. P. C, referred to above and under Rule 41(5) of the said Rules.
5. The appellants have challenged the correctness of the aforesaid finding of the learned Additional Judicial Commissioner before this Court on facts as well as on question of law. It has been urged that P. W 1, who is an accomplice according to his own version, is an unreliable witness and no reliance can be placed on his evidence. It has been further submitted that the so called confession made by some of the accused persons are not voluntary and they are exculpatory in nature, and, as such, they cannot be taken into consideration for the purpose of holding that the charges against the appellants have been proved. The other eve witnesses, who have been examined on behalf of the prosecution to support the case of conspiracy and arson, have been described on behalf of the accused persons as witnesses who have been set up on behalf of the police to secure conviction of these appellants. It may be mentioned here that out of the five appellants in the five appeals, three had made confession during the course of investigation. They are Nisar Ahmad. Basirul Haque and AH Hassan. The learned Additional Judicial Commissioner has held the confession of Nisar Ahmad to be exculpatory, as such being inadmissible. He has, however, relied on the confession of Basirul Haque and Ali Hassan. He has also placed re-lianre cm the confession of the accused Abdul Quayum, referred to above, who is an abseonder.
6. The allegation regarding fire on l0-9-1964 and 24-12-1964 have not been challenged. According to appellants, however, they were in no way connected with the same. Before I deal with the respective contentions of the parties in respect of the evidentiary value of the confessions of Basirul Haque, Ali Hassan, I first propose to examine the evidence of Syed Sayeeduddin (P. W. 1), the approver, in the case, in the light of the comments made against his evidence. It is hardly necessary to deal at length with the true legal position in respect of the evidentiary value of an accomplice. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. Section 133 of the Evidence Act says it in so many words that the accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon uncorroborated testimony of an accomplice. However, the rule of prudence regarding such witness has been provided for Under Section 114(b) of the Evidence Act, which says that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The courts faced with apparently two inconsistent provisions in the said Evidence Act have purported to harmonise the same by following the rule that an accomplice will be a competent witness no doubt in eye of law, but his evidence must receive sufficient corrobo-ration. The question whether every part of evidence of such accomplice should be corroborated was answered in the case of Sarwan Singh v. State of Punjab as follows :
There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous.
In this connection another aspect of the matter should not be overlooked that the accused persons have been charged for an offence of conspiracy and arson. In the very nature of the offence, it is difficult to get direct evidence on the point, as different accused persons play bit of the role assigned to them at different stages of the offence and at different places. As was pointed out in the case of Mohd. Hus-sain Umar Kochra v. K. S. Dalip Singhji, , that conspiracy may develop in successive stages ; the evil scheme may be promoted by a few, some may join at a later stage, some may drop, but conspiracy continues until it is broken up and, perhaps, that is the reason that Section 10 of the Evidence Act makes special provision regarding relevancy of fact while judging a case of conspiracy. Section 10 of the Evidence Act permits prosecution to lead evidence in respect of isolated acts and omissions of different persons to prove the existence of the conspiracy and to prove the complicity of different accused persons who might not have met each other. To that extent, Section 10 is based on the principle of agency and founded on the identity of interest existing between the parties. It is an exception to the general rule in a criminal case that a person cannot ordinarily be made responsible for the acts of others unless they have been instigated by him or done with his knowledge or consent. It was observed in Sardul Singh v. State of Bombay, :
But it is necessary to appreciate clearly that what is sought to be admitted in such a case is something said, or done, or written by any one of the co-conspirators behind the backs of the others as being in law attributable to the others and what is sought to be proved by such evidence taken by itself is the existence of the conspiracy as between the alleged conspirators and the fact that a particular person was a party to the conspiracy.
It is such evidence that is inadmissible otherwise than Under Section 10 of the Evidence Act. Quite clearly, in the normal class of cases, such evidence is admissible as against himself and not against others, excepting where there is relationship of agency or representative character or joint interest. (See Section 18 of the Evidence Act). In civil cases it is well settled that a principal is bound by the acts of his agent if the latter has an express or implied authority from the former and the acts are within the scope of his authority.
Therefore acts of an agent are admissible in evidence as against the principal. An analogous principle is recognised in criminal matters in so far as it can be brought in Under Section 10 of the Evidence Act. It is recognised on well established authority that the principle underlying the reception of evidence Under Section 10 of the Evidence Act, of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency.
7. According to the evidence P. W. 1, he was proprietor of Paramount Travel Service, Delhi which helps the pilgrims in securing passport, visas and passage etc. In connection with the business of obtaining visas, P. W. 1 had occasions to go to Pakistan High Commissioner's Office, Delhi and in this course, he came in contact of one Asik Khera and Anwar Ahmad, who were employees in the Pakistan High Commission Office. Some time in July. 1964, P. W. 1 met Anwar Ahmad and Asik Khera in the Office of Pakistan Embassy and told them about his hard financial position. They suggested to him that he could earn by another business i.e., by collecting the names of the active members of Jamaitul Islam. He was also asked to introduce them to the Editors who could publish news in their paper which would create tension between India and Pakistan, to introduce them to such persons who would create panic and sabotage activities in Jammu and Kashmir and other parts of India, to introduce persons who could furnish defence preparations from the armed forces. In the second week of August, 1964, accused Nisar Ahmad came to Delhi along with accused Ali Hassan and the latter was introduced to P. W. 1. P. W. 1 claimed to know Nisar Ahmad since 1961, as he was his agent of Bus Service at Patna. P. W. 1 also claimed that Nisar Ahmad used to write the accounts of his bus service and proved the entries in the pen of Nisar Ahmad, which was marked as Ext. 2. In general talk, according to P. W. 1, Nisar Ahmad and Ali Hassan spoke about the atmosphere prevailing at Ranchi and Jamshedpur and about the communal riots at Jamshedpur and Rourkella etc. They further told him that some of the Muslims at Ranchi have organised an organisation known as 'Khufia Tanjeem', the object of which was to take revenge for the atrocities perpetrated against the Muslims in Bengal and Bihar. They told P. W. 1 the names of active members, out of which he spoke about the accused Basirul Haque, Allauddin, Md. Yunus and Abdul Quayum. They also informed that Nisar Ahmad was the President of the said organisation. P. W. 1 asked them as to whether they would like to be introduced to a foreign Embassy, on which they agreed and next day, all of them met aforesaid Anwar Ahmad in Pakistan Embassy. According to P. W. 1, accused Nisar Ahmad talked with Anwar Ahmad for about 40 minutes. Later, Nisar Ahmad told P. W. 1 that he will remain at Delhi, but Ali Hassan will return to Ranchi. Accused Ali Hassan while leaving for Delhi, wrote his address in his own pen in the calendar kept at the table of P. W. 1. That writing has been proved and marked as Ext. 3. P. W. 1 and accused Nisar Ahmad again went to the Pakistan Embassy and that day Nisar Ahmad was produced before Mr. Gul Mohammad, the Second Secretary of Pakistan High Commission Office, who gave him Rs. 5,000/-. Next day, according to the evidence of P. W. 1, he again went to the Pakistan Embassy and demanded his remuneration and he was paid Rs. 500/-. In October, on 20-10-1964, P. W. 1 claimed to have met aforesaid Anwar Ahmad, who told him that a report had been sent to him that some work had been done in September, 1964 and asked P. W. 1 to go to Ranchi to bring a comprehensive report. P. W. 1 along with another person came to Ranchi on 23-10-1964 and first met the son of accused Nisar Ahmad. Later, he met accused Nisar Ahmad, who told him about the explosion of the store of Heavy Engineering Corporation in September, 1964 and about the damage done, and that some further steps in that direction would be taken soon. On 29-12-1964, P. W. 1 claimed to have received a letter from Nisar Ahmad by Lucknow address in which it had been written that on 24-12-1964 Basi-rul Haque had set fire to Heavy Engineering Corporation store but it did not cause much damage. That information was passed on to the Pakistani Embassy. He also stated that accused Nisar Ahmad used to write letters to him and he produced two such letters which have been marked as Exts. 4 and 4/1. He stated that he was arrested on 18-3-1965 and on 29-3-1965 he told the Subdivisional Magistrate that he wanted to make confession and he was remanded to jail custody for 24 hours, and, thereafter he made confession on 30-3-1965 before Mr. Bhalla (P. W. 15). He described the said confession as a voluntary one. During the course of cross-examination, the fact that accused Nisar Ahmad and accused Ali Hassan had gone and met P. W. 1 at Delhi in August, 1964, as deposed to by him, has not been challenged and it may be mentioned that Ali Hassan had admitted the said fact in his statement under Section 342 of the Code before the committing magistrate as well as before the sessions court. Similarly, Nisar Ahmad has also admitted that he was an agent in respect of bus service at Patna and in that connection he was in touch with P. W. 1 and he has also admitted the entry made by him, which has been marked Ext. 2. He, however, said that the allegation that he had been to Delhi in August, 1964 is baseless allegation. The prosecution, however, has proved about his visit to Delhi in August, 1964 by the leave applications made and signed by accused Nisar Ahmad, which have been marked as Exts. 15/3 and 15/4. From Ext. 15/3 it appears that he had applied for leave from 10-8-1964 to 14-8-1964 which was extended by the second leave application (Ext. 15/4) sent from Delhi for the period from 15-8-1964 to 5-9-1964. In the leave application (Ext. 15/3) in the column meant for the applicant's address while on leave. It has been mentioned, "B 88, Vinay Nagar, New Delhi". Prosecution has also proved from the evidence of P. W. 17 a Ticket Collector from Delhi Junction, that a reservation had been made in the name of Nisar Ahmad in 12Dn. leaving Delhi on 27-8-1964. When this evidence about the reservation of his seat from Delhi was brought to his notice, accused Nisar Ahmad admitted in his statement Under Section 342 of the Code before the Additional Judicial Commissioner, saying that he had purchased a ticket on 22nd or 23rd of August at Delhi Railway Station for Patna and reserved a berth in three-tier 3rd class bogies. In his examination Under Section 342 of the Code before the Committing Magistrate he had admitted that he did go to Delhi, but regarding the purpose of visit he stated that he had gone for appearing at examination. He stated before the committing magistrate that P. W. 1 had not taken him to Pakistan High Commission Office, meaning thereby that he did meet P. W. 1, but he denied the other part.
8. Apart from other evidence which has been adduced on behalf of the prosecution to corroborate P. W. 1, which I shall discuss later, from the admission, referred to above, it is apparent that accused Nisar Ahmad and accused Ali Hassan did go and meet P. W 1 at Delhi in the second week of August, 1964, as deposed to by him. Now the question that remains to be answered is as to whether this was for the purpose of some business or in connection with the conspiracy, as alleged on behalf of the prosecution.
9. Accused Ali Hassan has said in his statement Under Section 342 of the Code before the Additional Judicial Commissioner that he had visited Delhi and met P. W. 1 because he was interested in establishing a small industry and he had requested P. W. 1 to get some official help. He also stated that he had been introduced to P. W. 1 by Nisar Ahmad. It is remarkable that this very Ali Hassan before committing court, in his examination Under Section 342 of the Code, had stated, that he had gone to Delhi along with accused Nisar Ahmad and met P. W. 1 and only Nisar Ahmad had a talk with P. W. 1 in respect of the bus service for carrying passangers to Ajmer Sharif, He did not disclose any purpose of his visit. On behalf of the appellants, my attention has been drawn to the admission of P. W. 1 that in the year 1950, he had been prosecuted for an offence Under Section 420 of the I. P. C., but, in the next line, he has also stated that he had been acquitted by the appellate court. He has also admitted that in a criminal case, he had to remain in jail for 15 months in 1962. His attention has also been drawn on behalf of the accused persons to a petition alleged to have been sent by him to the Chief Justice, Patna High Court in which he has stated that he had been kept in Red Fort, Delhi in police custody for 12 days for interrogation and during this period high officials of Intelligence Branch had interrogated him, he had also been beaten during interrogation and he has been pressed to sign a false confessional statement. To this, he has stated that he had made the aforesaid statement in that petition itself under pressure and subsequently, he had sent a denial It has been urged on behalf of the appellants that P. W. 1 is a man of questionable character and no reliance can be placed on his evidence. In my opinion, by itself it is difficult to reject the evidence of P. W. 1. P. W. 1 on his own saying is an accomplice, a party to the crime and that is the reason why in law his evidence is not to be accepted on its face value unless it is corroborated in material particulars. In the present case, as I have pointed out above, the claim of P. W. 1 that the appellants Nisar Ahmad and Ali Hassan had met him in Delhi in the month of August, 1964 is not only corroborated by the evidence on record but they are admitted by the appellants Ali Hassan and Nisar Ahmad. The only other part of the evidence of P. W. 1 for which one has to look for corrobora-tion is as to whether this was in connection with the conspiracy to blow up the Heavy Engineering Corporation.
10. In this connection, I shall first refer to the confession of Basirul Haque made on 5-1-1965, which was recorded by the Subdivisional Magistrate, Ranchi. He had been warned that he was not bound to make confession and he had been also given time for reflexion. He has made detailed statement as to how he had been employed in the Batia workshop and how there was a communal riot in March and April, 1964 and he left that place and came to a new house at Hatia Mosque where he met accused Allauddin. He also stated that Allauddin had been to Jam-shedpur soon after the riots at Jamshedpur and he had stayed there for a week, and after his return he informed that there is none, to protect the prestige of Muslims and that they should go to Pakistan. Thereafter, he named other accused persons, some of whom are absconding, and stated that they used to meet in the hotel of accused Yunus. He said that in such meetings, they used to say that if they have to leave India why not they should destroy the karkhana. They used 1977 Cri. L. J./79 VII to discuss as how Habibullah, who was the manager of Heavy Engineering Corporation was insulted and turned out of the Heavy Engineering Corporation. Then he said that they took oath that everybody will play his part and he was told that as he was the electric mistry, he can be most helpful in that regard. He also said that he had received information that his grand-mother had fallen and money had been asked for. He was in need of money and Allaudin gave him Rs. 100/- and promised to pay Rs. 800/- further after the work was over. Then he stated that on 24-12-1964 at about 2,30 P. M, he went along with one Ashik Ali for work and he did the soldering. For soldering he had blow lamp, kerosene oil, match stick, jute etc. Near him was working Chambar Singh (P. W. 2) and one Reza (P. W. 14). At about 4 P. M., he got up with a pretence to make urine and moved towards crates and poured oil in the jute. Thereafter, he directed P. Ws. 2 and 14 to do their work in the store. When they left ; he put match stick where he had thrown the oil on the jute near the crate and saw smoke coming out. Thereafter, he left the place. When there was hulla for extinguishing the fire, he again came there along with other persons. Among the persons who used to attend the meetings, as stated by him earlier, also include Ali Hassan, who, according to him, was in F. P. Store. It is being disputed on behalf of the accused Ali Hassan that he is not in F. P. Store, and, according to him, it refers to some other A. Hussain. At that time there was one A. Hussain in F. P. Store. But, nothing has been substantiated on this point that this related to some other A. Hussain. This confession was retracted on 24-4-1967 before the committing magistrate by saying that he never gave any such statement, but it is remarkable that he has given no explanation as to how his confession (Ext. 17/1) bears his signature. Before the Additional Judicial Commissioner, however, Under Section 342 of the Code he has stated that the Inspector Ramdahin Singh, the then Jailor and the Magistrate Shri K. K. P. Singh (P. W. 27) forcibly took his signature on the said alleged confession. Shri K. K. P. Singh (p. W. 27) was the Sub-divisional Magistrate Ranchi in 1965 and he has stated in detail on oath as to how the confession of this accused Basirul Haque was recorded. He has spoken about all the formalities which have to be observed before recording a confession. Nothing has been taken in cross examination from which it can be held that the said confession has been recorded against any of the provisions of the Cr. P. C. It is difficult to imagine that this Subdivi-sional Magistrate would be a party to a conspiracy to get the signature of this accused on a prepared statement and to certify that the confession has been made by him. Learned Counsel appearing on behalf of this appellant before this Court has not urged that no confession was recorded ; he simply submitted that in view of the fact that the said confession has been retracted no reliance should be placed on the same. In my opinion, it is difficult to accept this contention. The confession of Basirul Haque is fully corroborated by the findings at the spot by the Investigating Officer (P. W. 46), i.e., a cotton waste soaked with oil, lamp, jute, piece of solder drops of ranga etc. According to the confession also, Chambar Singh (P. W. 2) and one Reza (P. W. 14) were working at the spot. They have been examined on behalf of the prosecution, P. W. 2 has stated that on 24-12-1964 he was working in O7 building which had no electric connection at that time and for earthing, blow lamp having kerosene oil in it was being used. He has also stated that accused Bassirul Haque said that he was going to make water and asked him and his sister (P. W. 14) to take the materials to the store and ultimately only Basirul stayed there and after 10 to 15 minutes, he heard the hulla of fire. Nothing has been taken out in the cross examination from which the evidence of this witness can be rejected. Similarly, p. W. 14 (Salmi) has also stated that she and P. W. 2, who is her brother, on the relevant date were working there along with accused Basirul in O7 building and the work of soldering was going on with blow lamp, ranga, jute etc. She has also stated that in blow lamp kerosene oil was given for burning. She has supported the confessional statement made by the accused as well as the statement of P W. 2 on all material particulars. Nothing has been pointed out on behalf of the accused persons in her cross-examination from which it can be held that her evidence is not worth reliance. In my opinion, the confession of Basirul Haque is fully corroborated by the evidence of the two witnesses, P. Ws. 2 and 14 and the findings on the spot, P. W 1 has also mentioned about this Basirul Haque, although not from his personal knowledge but what he learnt from other accused persons Nisar Ahmad and AH Hassan. That by itself may not be of much importance, but certainly that has to be taken into consid-ration along with the other evidence on the record to which I have already referred.
11. I shall also refer to the confession of Ali Hassan. This confession, as already stated above, was recorded on 8-2-1965 by Shri N. K. Sharma, Magistrate, First Class, Ranchi. The Magistrate has made a note that he had warned the accused that he was not bound to make confession and he also save time after such warning and was satisfied that it was voluntary in nature. After giving out the details of his going to East Pakistan and then about his initial employment at different parts of the country, he stated that during the communal disturbances in early 1964, he got acquainted with Basirul Haque, the accused, who was Electrician, Abdul Qayum (accused) who was Welder, Allauddin (accused) who was a crane operator and Mom (accused) who was a pipe fitter, because of the frequent visits to the hotel of accused Yunus at Doranda. In the meetings they used to discuss the fate of Muslims in India. In one of the meetings, accused Allauddin said that he had recently come from Tata and in the way the atrocities had been committed on Muslims that he had a feeling that there was no place for Muslims in India and there was none to look after their prestige and properties. At that, accused Yunus said that why not they were blowing up with dynamite the karkhana (workshop). On that accused Basirul Haque said that he was going to do that work, but before doing any such thing all the members should discuss at a meeting. Thereafter, a meeting was held, which was attended by abovesaid persons and others whom he could identify and everybody took oath to perform his part of the work in setting fire. Accused Basirul Haque and Qayum took oath to do the main job of actually setting fire in O7 building. Accused Yunus had presided over the meeting and assured all financial help. This meeting, according to AH Hassan, took place in the second week of December. In his confessional statement, Ali Hassan has not named Nisar Ahmad. In the examination Under Section 342 of the Code before the committing Magistrate, this confession was put to him saying that he had made a confession on 8-2-1965 before Sri N. K. Sharma, Magistrate, Ranchi and what he has to say about the same. He simply answered by saying that in that connection he will give in writing. He never denied to have made any such confession or Mated that that confession had been made under some pressure or coercion. Before the court of session about this confession, he has stated that he had been kept in police thana Hatia, for more than one month and he was severely tortured, starved and improperly clothed. He has further stated that when the confession was made before the Magistrate he was mentally paralised and nervous due to shock of injury "on my face". He has also stated that police officers used to visit him in the. hospital. I find that this claim that at the time the confession was made, he was mentally paralysed and nervous appears to be incorrect because from a bare reference to the confession recorded by the aforesaid Magistrate it will appear that he has given a very coherent statement and answered the questions put to him in a straightforward manner. The confession runs into three pages and at no stage it appears that it is a product of any paralysed or nervous mind. No allegation has been made on behalf of the accused Ali Hassan that he had been given a prepared confession which he was made to sign. Even in the examination Under Section 342 of the Code, referred to above, he has not made any allegation so far as the Magistrate, who recorded the confession, is concerned. He has also not stated in the examination Under Section 342 of the Code that be had been assaulted by the police officers for extracting a confession, and the injury on his face about which he has referred to was as a result of such assault. From the order sheet of the committing magistrate it appears that on 4-2-1965 a petition had been filed on behalf of the Investigating Officer making a prayer to the court that accused Ali Hassan along with other two accused persons were ready to confess and their confessional statement may be recorded by a Magistrate. The learned Magistrate passed an order directing Shri N. K. Sharma, Magistrate for recording the confessional statement. But in the night of 4th and 5th February, 1965, this AH Hassan, while sleeping, was assaulted by an under trial prisoner in the Jail itself and on 5-2-1965 the Jail Superintendent requested for approval of the transfer of accused Ali Hassan to Sadar Hospital for treatment of his injuries inflicted on him as a result of assault by another under trial prisoner Bandhu Ahir and the learned Magistrate passed an order that this accused Ali Hassan be admitted in the hospital. In connection with the assault on Ali Hassan, a case was also registered and investigated. The supervision note of that case made by the Deputy Superintendent of Police has been proved and marked as Ext. 30. From that it appears that a case had been lodged with the police that at about 3 A. M. in the night, aforesaid Bandhu had assaulted Ali Hassan on his face. He has also mentioned that AH Hassan was to be produced before the subdivisional officer next day for recording of his confession in the Hatia arson case and for that purpose it has been ordered that he should be kept in segregation, but, in spite of that, the Jail authorities had not kept him in segregation, he suspected a conspiracy to kill him So that he might not name other accused persons, namely, Yunus, who is a man of means. Accused Ali Hassan remained in the hospital on 5th, 6th and 7th and on 8th in the morning Shri N. K. Sharma met him and explained to him the consequences of making confession and that he was not bound to make the same and told him that he would return in the evening. Ultimately, in the evening the confession was recorded. At no stage, this accused has said that this injury which was caused on his face during the night of 4th and 5th had been caused by any police officer for the purpose of extracting confession. He was released on bail on 23-9-1966. Thereafter, also he never filed any petition before any court or before the Magistrate saying that his confession was not voluntary. Even before the committing court when he was examined on 24-4-1967, about the confession he simply said that he will give it in writing. He never retracted the said confession saying that it was the result of coercion or threat. For the first time, he filed a petition on 2-5-1967, i.e., more than two years after, to discard the said confession. In this background, I am not prepared to hold that the confession was a result of any pressure or coercion and I am inclined to accept that it was a voluntary confession made by the accused Ali Hassan. Learned Counsel appearing for the other accused persons has submitted that this confession, even if held to be voluntary, is exculpatory in nature, and, as such, inadmissible. In my opinion, there is no substance in this contention. On a mere reading of the said confession, it appears that Ali Hassan had associated himself with all that was said and done. He claimed to have been visiting the hotel of accused Yunus where the plans used to be discussed. He was present in the meeting where everybody took oath. He has never dissociated himself from all that passed prior to 24-12-1964 nor has he said that he was under any pressure. In that view of the matter, I am of the view that the confession in question is not exculpatory in nature and it can be used as an evidence against the accused Ali Hassan and against other co-accused persons as far as it is permissible in accordance with Section 30 of the Evidence Act. In my opinion, the confessional statement of accused Basirul Haque and accused Ali Hassan fully corroborate the statement of P. W. 1 that the accused persons had entered into a conspiracy to burn or blow up certain portions of the Heavy Engineering Corporation, an undertaking of the Government of India. I have already pointed out that in this connection the admissions of accused Nisar Ahmad and Ali Hassan about their going to Delhi and meeting P. W. 1 in August, 1964, along with Ext. 3, the address written by Ali Hassan on the desk calendar of P. W. 1, corroborate P. W. 1 on material particulars. But, apart from that, there are two other witnesses, whose statements also have to be taken into consideration for that purpose and they are Safi Hassan (P. W. 18) and Nem Chand Bhatia (P. W. 19). Safi Hassan was an employee in the Delhi Paramount Travel Service of which P. W. 1 was the proprietor. He has stated that he used to see Pakistan Embassy officials going to that Travel Agency. He has also claimed to have seen accused Nisar Ahmad and Ali Hassan in the second week of August, 1964. He stated that he had seen in one of the rooms these two accused persons along with some Pakistan officers whom he has named. The only contradiction taken in the cross-examination so far as this witness is concerned is that he did not state before the police that he saw these accused persons talking with Pakistan officials. In my opinion this omission is not of such an importance. If he had stated that he had seen these two accused persons along with those officials, still it is an incriminating circumstance and corroborates P. W. 1. P. W. 19 claimed to know P. W. 1 and his Travel Agency and he had seen some of the officials of Pakistan Embassy coming to that Travel Agency and he has named them also. He has also stated that he had seen accused Nisar Ahmad and Ali Hassan going to that Travel Agency in Delhi in August, 1964. About him, it has been pointed out that in court he identified Ali Hassan, but he was doubtful about the identification of Nisar Ahmad. He was being examined after more than four years from the date when he had seen them. In that view of the matter, no importance should be attached to it. The suggestion given by the accused person is that P. Ws. 18 and 19 are in the hands of police and, therefore, they were deposing falsely. Admittedly, these persons belong to Delhi and there is no reason of their being in the hands of the local police at Ranchi.
12. On the aforesaid evidence, in my opinion, it is established that a conspiracy had been entered into by P. W. 1, Nisar Ahmad, Ali Hassan and others at Ranohi to damage and destroy the industrial complex at Hatia of the Government of India, under some fanatic influence. From the aforesaid statements it also appears that Ali Hassan, Nisar Ahmad, Basirul Haque took active part in pursuing the aforesaid object and the prosecution has fully established this fact. In this connection, I have not yet referred to two other witnesses, i.e., Pyare Singh (P. W. 10) and Sipahi Sao (P. W. 44), who had stated that in the second week of December, 1964, they had seen 9 to 10 persons sitting in the P. W. D. field at Doranda. P. W. 10 has stated that he heard the sound and identified accused Ali Hassan, Allauddin and Yunus among those persons, whom he knew from before. P. W. 44, on the other hand, has also stated, that he heard someone saying "Hatia Ura Do" and when he reached near them, everybody became silent. Among the persons sitting, the recognised Ali Hassan, Allauddin, Md. Yunus and Basiruddin meaning Basirul Haque. It has been submitted on behalf of the accused persons that no reliance should be placed on their evidence because they were examined by the police at a quite late stage and on their own statement they are, chance witnesses. As it is, I am not prepared to reject their evidence being false and procured, but I have examined other materials on the question of conspiracy and I propose to refer to the evidence of these two witnesses only by way of further corroboration. The statement of these two witnesses is supported even by the confession made by Basirul Haque and Ali Hassan as they have also spoken about a meeting in which several persons participated and took oath. No motive has been given as to why these two witnesses (P. Ws. 10 and 44) would depose falsely against these accused persons or anyone of them.
13. Coming to the cases of individual accused, on the materials referred to above, in my view, the complicity of appellant Ali Hassan is proved, by the evidence of P. W. 1, the approver, and the confession made by Ali Hassan, which I have held to be voluntary. The retraction of the said confession is belated and an afterthought. The aforesaid materials are further corroborated by the evidence of P. Ws. 18 and 19, who had seen Ali Hassan at the aforesaid Travel Service in Delhi. The fact that this accused went to Delhi is proved by his own writing, Ext. 3, and has been admitted by him in his Section 342 statement made before the committing magistrate, as well as before the court of session. He has given a contradictory explanation in respect of the purpose of the said visit in the two statements. The leave applications (Exts. 15/1 and 15/2) also show that he was on leave between 10-8-1964 to 22-8-1964 and in those leave applications in the column meant for his address during leave he had wrongly mentioned "Darji Mohalla, Post Hinoor, Ranchi", as on his own admission, he was in Delhi during that period. Then there is the confession of Basirul Haque (Ext. 17/1) which can be taken into consideration to the limit permitted by Section 30 of the Evidence Act. So far as this accused is concerned, P. Ws. 10 and 44, about whose evidence I have already mentioned above, have also named him as one of the participants in the meeting that was held in the maid an before the occurrence.
14. So far as the charge of conspiracy to commit arson, against Nisar Ahmad is concerned, P. W. 1, the approver, has stated in detail about it and I have already held that his evidence is corroborated by the materials on the record of the case, among which are the two leave applications (Exts. 15/3 and 15/4) from which it appears that he was on leave from 10-8- 1964 to 14-8-1964 and then from 15-8-1964 to 5-9-1964. The date of the beginning of the leave coincides with the date of beginning of the leave of accused Ali Hassan, and in the column meant for the address during leave in Ext. 15/3, B88 Vijay Nagar, New Delhi, has been mentioned. He has admitted that he was agent of P. W. 1 and that Ext. 2 was in his pen. In his statement Under Section 342 of the Code before the sessions court, first he has said that the allegation that he went to Delhi in August, 1964 and was introduced to the officers of the Pakistan Embassy to be baseless allegation, but later he admitted that he had 'purchased a ticket on 22nd or 23rd of August, 1964, to return from Delhi to Patna and had reserved a berth. Before the committing magistrate, in the statement Under Section 342 of the Code, he had also admitted that he had gone to Delhi and met P. W. 1, but the purpose of his going was to appear at some examination. Accused Ali Hassan has stated in his examination Under Section 342 of the Code before the committing magistrate about his going to Delhi along with this accused Nisar Ahmed. P. Ws. 18 and 19, whose evidence I have referred to above, stated that they had seen this accused Nisar Ahmad at Delhi during the relevant period in the office of the aforesaid Travel Agency. All these materials, in my opinion, sufficiently corroborate P. W. 1 on material particulars that this accused had entered into conspiracy along with other accused persons, including P. W. 1 and Ali Hassan, to achieve the aforesaid object, and, in my view, the charge levelled against him has been proved.
15. So far as appellant Basirul Haque is concerned, I have already discussed about his confession and I have held that it can be acted upon. The said confession is fully corroborated by the evidence of P. Ws. 2 and 14, who were working along with this Basirul Haque at the place of occurrence. His confession is also corroborated by different articles found at the spot by the Investigating Officer. The confession of Ali Hassan can also be taken into consideration so far as this accused is concerned in accordance with Section 30 of the Evidence Act. He has stated that accused Basirul Haque used to attend the meetings and he was also present in the meeting held in the maidan where it was decided to set fire and this accused was given the main job of setting fire because he was in the electrical department. He has also stated that on 25th December, i.e., the next day, this accused had told in the hotel of appellant Yunus that he has fulfilled his promise. P. W. 1 has also stated in his evidence that he learnt from a letter dated 29-12-1964 sent by the appellant Nisar Ahmad that on 24-12-1964 Basirul Haque had set fire to Heavy Engineering Corporation store. Of course, this is not a matter of personal knowledge, so far as P. W. 1 is concerned. On the aforesaid materials, I am satisfied that the confession of this accused, Basirul Haque, along with other materials referred to above, fully establishes the charge against him of entering into a conspiracy and actually setting the store of Heavy Engineering Corporation to fire.
16. So far as appellants Allauddin and Md. Yunus, the two appellants in Criminal Appeal No. 187 of 1969 and Criminal Appeal' No. 185 of 1969, respectively, are concerned, P. W. 1 never claimed to have met them personally. He claimed to have learnt from the other two accused persons, Nisar Ahmad and Ali Hassan, about these accused persons. The accused Basirul Haque and Ali Hassan, in their confession, have stated about Allauddin that he had been to Jamshedpur (Tata) and there he had learnt about the atrocities committed On the Muslims community and after his return from there, in one of the meetings at the place of appellant Yunus he narrated the incident on which a decision was taken to blow up the workshop itself. The fact that a riot had taken place in the month of March, 1964 at Jamshedpur is not disputed and P. W. 49, the Inspector of Police, has also deposed about the riot in March, 1964 in Ranchi, Chaibassa and Jamsihedpur, He has spoken that there were 17 cases in Ranchi district, 183 in Chaibasa district and 321 in Jamshedpur. From Ext. 15, the leave application of this accused Allauddin, it appears that he was on leave between 16-4-1964 to 15-5-1964, and in that he had mentioned the address during leave at Jamshedpur. About Md. Yunus, Basirul Haque as well as Ali Hassan have stated that the meetings of the conspirators used to take place in the shop of the accused Yunus. They have also stated that Yunus was present in the meeting in which oath was taken to pursue the goal. Ali Hassan has stated that when Allauddin narrated the incidents which had taken place at Jamshedpur, this accused Yunus said that "You people are working in the workshop, why not blow the same" and after the occurrence he said that he will try to help in the matter. P. Ws. 10 and 44 have stated that in the meeting held in the second week of December, 1964, these accused, i.e., Allauddin and Yunus, were also present. The result is that so far as these two accused persons are concerned, the main evidence against them is the confessional statement of the other co-accused, Basirul Haque and Ali Hassan. That can be taken into consideration Under Section 30 of the Evidence Act. Now the question is as to whether in such a situation, the conviction of these two accused persons can be upheld. On several occasions it has been pointed out that the confession of an accused person is not an evi dence against a co-accused in the. sense that conviction on that alone could be supported. Section 30 only prescribes that "it would only be taken into consideration", that is to say, it can be taken into account only to lend assurance to the other evidence. It does not indeed come within the definition of evidence Under Section 3 of the Evidence Act. Reference in this connection can be made to the cases of Kashmira Singh v. State of Madhya Pradesh and Ram Chandra v. State of Uttar Pradesh, . In the case, of Kashmira Singh v. State of Madhya Pradesh, while dealing with the question as to how the confession of an accused person should be used against a co-accused, it was pointed out.
The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where, the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.
17. Applying the aforesaid principle to the facts and circumstances of the present case, in my opinion, it is difficult to hold that excluding the confessions of Basirul Haque and Ali Hassan, there are materials on the record on the basis of which the conviction of these two accused persons can be upheld, or that they are of such a nature that the confession of other two accused persons should be taken into consideration for lending assurance to the materials already on record, proving the complicity of these two accused persons. In such a situation, I am left with no option but to give benefit of doubt so far as the appellants Md. Yunus and Allauddin are concerned. Accordingly, their appeals (Criminal Appeal No. 185 of 1969 and Criminal Appeal No. 187 of 1969) are allowed and their convictions and sentences are set aside. So far as the appeals of the remaining three appellants, namely, Basirul Haque, Nisar Ahmad and AH Hassan (Criminal Appeals Nos. 210 of 1969. 199 of 1969 and 195 of 1969, respectively) are concerned, the convictions passed against them under different sections are upheld. However, taking into the facts and circumstances of the case, I am of the view that the sentence of rigorous imprisonment for ten years each Under Section 120-B read with Section 436 of the I. P. C. imposed against Ali Hassan and Nisar Ahmed should be reduced to a period of five years which, in my opinion, will meet the ends of justice. There is no need to interfere with the sentence imposed Under Section 436 of the I. P. C. so far the appellant Basirul Haque is concerned. His sentence Under Section 120-B read with Section 436 of the I. P. C. is, however, reduced to a period of five years. Thus the appeals of the three appellants, namely, Ali Hassan (Criminal Appeal No. 195 of 1969), Nisar Ahmad (Criminal Appeal No. 199 of 1969) and Basirul Haque (Criminal Appeal No. 210 of 1969) are dismissed, subject to the modification in the sentence Under Section 120-B read with Section 436 of the I. P. C. as mentioned above. Their sentences under different sections of the I. P. C. and under Rule 41(5) of the Rules shall run concurrently, as directed by the learned Additional Judicial Commissioner.