Patna High Court
Ramsarup Singh And Ors. vs Emperor on 3 July, 1929
Equivalent citations: 128IND. CAS.121, AIR 1930 PATNA 513
JUDGMENT Dhavle, J.
1. These three appeals have been heard together as they arise out of one and the same trial which was by Jury. Six of the seven appellants have been convicted of dacoity and sentenced to nine years' rigorous imprisonment each; and appellant Dipan Pande has been convicted under Section 412 of the Indian Penal Code and sentenced to five years' rigorous imprisonment in the same connection.
2. The dacoity charged is timed about 10 p. M. on the 18th of September, 1628, and the charge under Section 412, which applied to Dipan Pande and four other appellants, related to the recovery on the 22nd of September of properties stolen in the dacoity. The victim of the dacoity was one Biswanath Bania of Mahmudganj.
3. The Jury brought in a unanimous verdict in the case of all the appellants except Tribeni Tewari whom a majority of three to two found guilty of dacoity.
4. It has been contended that the trial is vitiated by the failure of the Sessions Judge to explain the offence of dacoity to the Jury, and in support of this contention the case of Mari Vallayan v. Emperor 30 M. 44 : 1 M.L.T. 399 : 5 Cr. L.J. 78 has been cited. The heads of charge do not contain an explanation of dacoity, but they do contain several significant passages bearing on the matter. In the first place, a reason has been given for the alternative charge under Section 412 against five of the appellants, and this reason is, "In some cases there is no direct evidence that the accused took part in dacoity. The evidence consists only of the recovery from the possession of the accused of property alleged to have been stolen in the dacoity." Secondly, in dealing with the recent unexplained possession of property stolen in the dacoity, the learned Sessions Judge records, "You might even think that from all the circumstances of the case the proper inference is merely that he (that is to say, the accused from whom the property was recovered) knew the property was stolen property and received it dishonestly, and in that event you could not convict him either of dacoity or under Section 412 but you could convict him under Section 411."
5. It seems to me impossible to imagine, notwithstanding such passages in the heads of charge that an experienced Sessions Judge would have failed really to explain dacoity to the Jury. As was observed in Eknath Sahai v. Emperor 35 Ind. Cas. 657 : 1 P.L.J. 317 : 17 Cr. L.J. 353 : 2 P.L.W. 348, "The heads of charge are not intended to be an exhaustive detail of every particular which the Judge may have addressed to the Jury." It is unquestionably desirable that the record of the charge on question of law should be sufficiently full to show whether the elemental constituting the offences charged have been properly and fully explained to the Jury. In the recent case of Dhanpat Tiwari v. Emperor 125 Ind. Cas. 131 : 9 Pat. 148 : A.I.R. 1930 Pat. 243 : Ind. Rul. (1930) Pat. 483 : 31 Cr. L.J. 786 : 11 P.L.T. 646 decided by this Bench on the 13th of May last, where the heads of charge mentioned that certain sections had been read and explained to the Jurors, my learned brother remarked, "s. 367 expressly provides that in a trial by Jury the Court need not write a judgment. Any suggestion to the Court that in recording the heads of the charge to the Jury they should practically write a judgment, and indeed should write out to no purpose the elements of criminal law which the Judge must explain to the Jury but no experienced Judge sets out in a judgment, is, in my opinion, strongly to be deprecated. To my mind no exception can be taken to the record by the learned Assistant Sessions Judge of the head of the charge showing how he laid down the law to the Jury." In the present case the learned Sessions Judge has failed to note in so many words that he had explained the section defining dacoity to the Jury. At the same time it is clear, as I have already indicated, that he must have done so. It has been held in Chotan Singh v. Emperor 111 Ind. Cas, 308 : 7 Pat. 361 : A.I.R. 1928 Pat 420 : 29 Cr. L.J. 804 : 10 P.L.T. 26 : A.I. Cr. R. 91 that the failure of the Judge to record in the charge what actually his explanation of the law was, did not necessarily involve the setting aside of the conviction if the omission do not occasion a miscarriage of justice, and that the High Court will not order a retrial when it is of opinion that if the Jury accepted the evidence which was put forward on behalf of the prosecution, there was no doubt they were entitled to convict the accused of the offences charged. The evidence in the present case of what happened in Biswanath Bania's house, if believed, makes out a case of dacoity and nothing else. The verdict read with the heads of charge, also shows an appreciation of the three inferences from the finds referred to by the learned Sessions Judge. In my opinion, therefore, it cannot be said that the convictions of the appellants must be set aside merely because it is not stated in the heads of charge that the offence of dacoity was explained to the Jury.
6. In dealing with the question of the dacoity, the learned Sessions Judge refers, inter alia, to the evidence of the approver Nagina Singh, and says, "The defence have not challenged the evidence that there was a dacoity in Biswanath Bania's house and that the approver Nagina took part in the dacoity and there seems to me no reason why you shall not believe this much of the prosecution story.... If, however, you are satisfied that the evidence of the dacoity is generally true, then you will come to what seems to me the only question of any difficulty, namely, which, if any of the prisoners took part in the dacoity...."
7. It has been contended that the learned Sessions Judge was in error in telling the Jury that the defence had not challenged the evidence that Nagina Singh took part in the dacoity, and Mr. Srinarayan Sahay has endeavoured to show from the cross-examination of Nagina Singh that the man was challenged as regards his participation in the dacoity The challenge is, however, confined to a few details and is not of the kind to suggest that according to the defence Nagina Singh was not in the dacoity at all. It is also obvious that the case must have been argued before the learned Sessions Judge on the footing that Nagina Singh had taken part in the dacoity. There is, therefore, no substance in the point raised by Mr. Sahay.
8. It has also been contended that instead of asking the Jury to see how far the, evidence of the approver was corroborated, and corroborated not merely in the general way, but in ways that would point "directly" to the accused concerned, the learned Sessions Judge should have pointed out to the Jury that Nagina Singh was an out-and-out liar and that, therefore, corroboration was immaterial. It its impossible to accept this contention. How far to believe the approver was essentially a matter for the Jury to accept or reject. The learned Sessions Judge pointed out to the Jury the grounds on which the evidence of an approver should be suspect--his criminality and low moral character on his own showing, and his "purchasing his own safety by betraying his own fellow criminals or perhaps his enemies"--and added "In the present case there seems to be no reasons why you should not follow the general Rule (requiring corroboration of the evidence of an approver) There was nothing about the evidence of Nagina Singh that could possibly imprest one with the idea that he has a thoroughly truthful witness...."
9. It has been urged that Nagina Singh, though he is from Kalyanpur, takes care not to implicate people from that village. This on ten lion is not literally correct, because Nagina Singh does not implicate Chotu Ahir and Dukhanti Chamar from that village, though he does not actually send them inside the house of Biswanath Bania. In any case the learned Sessions Judge has expressly dealt with the point while considering the defence contention that the evidence of the approver proves four of the appellants to be guiltless of the dacoity. He says: "You will, however, easily understand that if there is a risk of an approver falsely accusing persons who were not present, there is equally a risk that he may falsely deny the presence of the real criminals in order to save his friends."
10. In my opinion it was not open to the learned Sessions Judge to go beyond this or to tell the Jury that Nagina Singh was an out-and-out liar.
11. Exception has been taken to the next remark of the learned Sessions Judge, "The fact, therefore, that the approver says that a certain one of the accused was not present at the dacoity does not prove that prisoner guiltless unless you are satisfied that the approver is really telling the truth."
12. It has been urged that this is an erroneous direction and that the learned Sessions Judge should have asked the Jury to deal with the approver as a witness who was either truthful or untruthful. I am unable to agree, it is plain that the approver may have told the truth in some parts of his story, but not in others.
13. It has also been contended that the approver's story is inadmissible in evidence because he has said that when he was arrested, the Sub-Inspector took his statement and that before that, the Sub-Inspector had said that if he should confess, he would be made a prosecution witness. But the approver also says that he has deposed of his own free will and that what he has said is completely true. He also made a confession to the Sub-Divisional Magistrate which has been put in by the defence as Ex. C and which was recorded by that officer under a 164 of the Criminal Procedure Code and certified as a voluntary confession. The approver's allegation that before he made his statement to the Police, he had been told that if he confessed he would be made a prosecution witness was not put, as it should have been put by the prosecution, to the Sub-Inspector concerned, but his statement in cross-examination that Biswanath came to the thana, while he and appellants Ramsarup and Chotu were there is flatly contradicted by the Sub-Inspector and points to a distinct bias against the prosecution. I do not, therefore, think that the approver's evidence was, as a matter of law, inadmissible in evidence.
14. Coming now to individual appellants, it has been urged that in the case of Chotu Ahir and Ramsarup Singh it should have been pointed out to the Jury that other members of the family were unable to recognize these men. This contention was apparently advanced under the impression that with Biswanath there lived not only his wife but also Bhrigu Bania and Ganesh Bania. Ganesh gives Hanuman Bania as his father's name and so does Biswanath, but beyond this there is nothing to show that he is related to Biswanath. Bhrigu does not even share with Biswanath the same father's name. The sketch prepared by the Sub-Inspector (Ex. 21) does not show that Ganesh and Bhrigu were living with Biswanath, and the evidence does not show that either of them got so near the dacoits as did Biswanath. Biswanath's wife was prevented from giving evidence in the case by reason, it is said, and said without challenge, of her detention in hospital after a surgical operation. The evidence does not show that the two appellants who were holding Biswanath got close to his wife. It is, therefore, immaterial if the Jury was not expressly asked to note that Biswanath is the only member of the family to identify the appellants. In dealing with the attack on Biswanath's evidence on the ground that he did not give to the chaukidar a description of these two appellants, the learned Sessions Judge has remarked "You have seen the chaukidar and you will consider whether it is likely that he would carry in his head a description of two men given to him by Biswanath."
15. It has been urged that this is a mis-suggestion as it is not the case of the chaukidar that he had been given a description of the two men by Biswanath but had failed to carry it in his head. The chaukidar's capacity is, however, reflected in the, fact that in his information at the thana he stated that Biswanath could identify the dacoits if he saw them, while he told the Committing Magistrate that Biswanath had not said so and had said that he did not recognize any of the dacoits, and in the Sessions Court denied making such a statement. Biswanath himself says that he also told the chaukidar that he could identify two of the men and told him what they looked like In my opinion, therefore, there was no mis-suggestion to the Jury regarding the chaukidar. An attack has also been made on the following observation of the Sessions Judge:
Next morning the Sub-Inspector took Biswanath's statement. Now it is reasonable to suppose that the Sub-Inspector would have asked Biswanath to describe the dacoits, but the defence have carefully avoided endeavouring to contradict Biswanath's evidence that he was able to describe two of the dacoits by means of his statement made to the Sub-Inspector, and if you think proper, you can from this omission infer that actually his statement in Court is correct and that there is nothing in his previous statement made to the Police which can contradict it.
16. It has been urged that the learned Sessions Judge has in this passage improperly used Biswanath's statement to the Police to corroborate his evidence in Court, contrary to the provisions of Section 162 of the Code of Criminal Procedure; but that is not what the learned Sessions Judge has done in terms; he merely asked the Jury, if they thought proper, to infer that his statement in Court is correct and uncontradicted by a previous statement,. It has been urged that the learned Sessions Judge has really proved negatively that Biswanath had made the same statement before the Police and that the law does not permit such an inference to be drawn from the omission of the defence to cross examine the Sub Inspector on the point and thus contradict Biswanath. It seems to me that the learned Sessions Judge could have told the Jury that they were entitled to believe Biswanath, if they thought fit, unless the defence showed, as they had not even attempted to do, that he had on a previous occasion made a contradictory statement. The reference to the statement made to the Police is at the most somewhat injudicious and is not, in my opinion, at all material enough to have led to a miscarriage of justice.
17. Every attack on the Judge's charge to the Jury in respect of these two appellants, Chotu Ahir and Ramsarup Singh, thus fails.
18. Bishuni Kewat is the third appellant for whom Mr. Srinarayan Sahay has appeared. The contention in his case is that in the matter of the corroboration of the prosecution story by the find of the sugar there was misdirection, and by the find of the clothes, non direction. Bishuni was named by the approver and a search of his house led to the discovery of a large quantity of sugar and five articles of clothing which were claimed by Biswanath as stolen in the dacoity. It has been urged that the sugar is not an identifiable article and that the learned Sessions Judge was in error in placing before the Jury the find of the sugar as a corroboration when it could not in a reasonable view of the case be said to corroborate the approver's story. The case of Jamiruddi Masalli v. Emperor 29 C. 782 : 6 C.W.N. 553 which was referred to recently in Rebati Mohan Chakrabarty v. Emperor 115 Ind. Cas. 258 : 32 C.W.N. 945 : A.I.R. 1929 Cal. 57 : 30 Cr. L.J. 431 : Ind. Rul. (1979) Cal. 338 : 56 was cited in support. That the sugar was not capable of identification is expressly mentioned in the heads of charge in the paragraph that deals with appellant Dukhanti Chamar immediately before the appellant Bishuni Kewat, if indeed it was necessary to detail such an obvious fact in the heads of charge. I am unable to accept as correct the contention that the find of sugar could not reasonably be a corroboration of the prosecution story--
Persons employed in carrying sugar and other articles from ships and wharves have been convicted of theft upon evidence that they were detected with property of the same kind upon them recently upon coming from such places, although the identity of the property as belonging to such and such persons could not otherwise be proved" (Woodroffe's Evidence, 8th Edition, page 773, citing more than one authority).
19. As to the clothes, the contention is that the three lists of stolen property filed by Biswanath do not make even a remote approach to the identity of these articles, and that this should have been mentioned to the Jury. That, however, seems to be a trivial circumstance, in comparison with the fact that Biswanath's claim to the clothes was not at all challenged in cross-examination; nor was he asked to show where they were mentioned in his list. It is also obvious that the lists are by no means exhaustive, even though the third and last list was actually put in after the finds in the case; there are for instance the chaukidari receipts (Exs. IV and V) in the Biswanath's name which were found at a place pointed out by the approver and which are not mentioned in any of the lists In my opinion the charge against this appellant Bishuni is snot defective, and there is no reason to interfere with the verdict of the Jury against him.
20. Dukhanti Chamar and Dipan Pande have merely sent in petitions of appeal from Jail stating that they have been wrongly convicted. Mr. Sahay has argued their cases as amicus curiæ. As regards Dukhanti Chamar, who was named by the approver and was stated by him to have carried away a large quantity of sugar, and in whose house a suspiciously large quantity of sugar for a chamar was found besides two quilts and a dhoti with marks which have been identified by Biswanath and which are not claimed by Dukhanti. Mr. Sahay has not suggested that there was any misdirection or non-direction in the charge to the Jury. Dipan Pande has been convicted under Section 412 of the Indian Penal Code in respect of a big thali which was stolen in the dacoity and which (along with two unidentifiable articles wrapped up in a durrie) he was found concealing under the thatch of a house in a narrow blind lane. It has been urged that there can be no inference that the man knew that the thali had been stolen is the dacoity as distinguished from the minor offence of theft or robbery. Accordingly to Illustration (a) to Section 114 of the Evidence Act:
The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
21. This Illustration refers to cases of theft, though" stolen property" is defined in Section 410 of the Indian Penal Code as property "the possession whereof has been transferred by theft, or by extortion, or by rob bey..." but the provision in question is no more than an Illustration, and authority is not wanting for the proposition that the presumption is not confined to charges of theft, but extends to all charges, however penal, not excluding even murder [vide Queen Empress v. Sami 13 M. 426 : 1 W. 290] There is, therefore, no reason to interfere with the verdict of the Jury in the case of Dipan Pande.
22. I now come to the appeal of Tribeni Tiwari and Ramsawarath Singh. Tribeni was found guilty of dacoity by three Jurors against two. He was not named by the approver, and the evidence against him consisted of two articles admittedly found in his house or on the person of his concubine--a cooking pot variously called a batlohi or batua and a pair of silver bracelets with tigers' heads on them. As regards the cooking pot the learned Sessions Judge has fairly placed before the Jury the question whether the article is at all capable of identification by the owner, after stating his opinion that it seems incapable of identification and after referring to a discrepancy in Biswanath's story regarding the article. The learned Sessions Judge says that the weight of the bracelets does not agree precisely with the weight given in the complainant's list, and he leaves it to the Jury to see whether such a loss of weight (from 16 to 13 bharis) might take . place from constant use. He also refers to a mark, which he calls a dent, though the evidence points to a crack, by which it may be possible for the holder to recognize the article, and to the defence suggestion that Biswanath had had an opportunity of seeing the batua (this is obviously a clerical mistake for betua or bracelets) at the Police Station before the test identification. It has been urged on behalf of the appellant that the attention of the Jury should have been drawn to the fact that at the test identification there was only one other pair of similar betuas and the contention is not without force in the circumstances.
23. Stronger exception has been taken to the following passage in the heads of charge:
You well remember that the prisoner Tribeni makes a definite statement that he purchased this batua 18 months ago in Chandauli bazar, and he summoned the shopkeeper Ram bad an and called for his books, yet he has not examined the shopkeeper although the witness was in Court. The accused is not, of course, expected to prove himself innocent but, when he makes a definite statement which ought to be capable of easy proof and he gives no evidence of it, it would not be unreasonable for you to draw some inference against him from the omission.
24. The contention is that it became unnecessary for the defence to examine Rambadan because Lakhmi Narain (P.W. No. 16) admitted in cross-examination that in his jewellery shop in Chandauli Rambadan is a share-holder, that at that shop purjas are given to purchasers for cash payments, that Ex. A is a purja written by Rambadan, and that Ex. B is the account-book of the shop and, further Kedar Tiwari (P.W. No. 27) said in cross-examination that he had seen Tribeni's concubine wearing betuas similar to the article in question fora year or year and a quarter. The purja (Ex. A) refers to the sale of a pair of bracelets with tigers' heads in Baisakh 1984 (Sambat) and is supported by the account-book. Tribeni's case was that he had bought the bracelets from Rambadan 18 or 19 mouths before his examination in January, 1829. It has been contended by Mr. Agarwala on behalf of the Crown that mere proof of the purja and the account book does not establish the purchase and that it was still necessary for the defence to call the seller Rambadan. It has, on the other hand been urged on behalf of Tribeni that it was not to be expected that Rambadan would have any specific recollection of the sale of a particular article of jewellery so long ago, and that in any case, whether conclusive or not, the evidence of Lakshmi Narain and Kedar Tiwari should have been placed before the Jury for what it was worth. In my opinion this contention must be accepted, and having regard to the divided verdict of the Jury, it seems to me impossible to say that the result might not have been different if the evidence had been properly placed before the Jury. Speaking for myself, I should certainly have found it difficult to say without hesitation that it had been established beyond reasonable doubt that the beruas belonged to Biswanath and not to Tribeni. I would, therefore, reverse the verdict of the majority of the Jury against Tribeni on the ground that it is erroneous owing to misdirection by the learned Sessions Judge, such misdirection consisting in the remarks about the failure of the defence to examine Rambadan when coupled with the failure to refer to the evidence of Lakshmi Narain and Kedar Tiwari. Having regard to the exiguous character of the evidence against Tribeni, I do not think that this is a case for directing are-trial.
25. The only other appellant to be dealt with is Ramsawarath Singh. The learned Sessions Judge has pointed out how according to the approver Ramsawarath Singh refused to take part in the dacoity and went away, and how the man was seen concealing a bundle of articles in a shed of one Musafir Singh at the time of the house searches, two of the articles (a big thali of a mixture of metals known as phul and a bundle of yarn) being claimed by Biswanath as part of the stolen property. We has observed that the yarn appears to be incapable of identification, and he has left it to the Jury to say whether the thali can be identified by the owner. He has also referred to the cross-examination of Bhabhuti Singh and the contradictions in the evidence regarding the person who informed the Sub-Inspector and the place where he did so and the defence contentions that being already under arrest Ramsawarath could not have concealed the property stolen, that the Sub-Inspector was in league with Bhabhuti Singh and others, etc, It has been contended that it should have been said to the Jury that the Sub-Inspector must, in spite of his denial, have searched Ramsawarath's house before he left the tola, but that is only a defence contention--one of many defence contentions--on the evidence, and as was observed in Eknath Sahay v. Emperor 35 Ind. Cas. 657 : 1 P.L.J. 317 : 17 Cr. L.J. 353 : 2 P.L.W. 348, "The Judge is not bound to address himself in every particular and in every detail to every suggestion put forward by the defence. It is the duty of the Judge fairly and candidly to point out the main and salient features of the case from the point of view of the prosecution and of the defence, respectively. And in doing so he is entitled to take into consideration the speeches made upon both sides by the Grown and by the prisoners' Counsel, in considering his presentation of the evidence to the Jury."
26. One important circumstance does, however, seem not to have been put to the Jury, namely, the fact that the thali found in the bundle weighs 1 seer 10 chataks (vide Ex. 14) while the phul thali mentioned in Biswanath's list is only 1 1/2 seers in weight and was used for about one year. It has been urged by Mr. Agarwala that weights vary from village to village, but the answer to this is that there is no suggestion in the present case that Biewanath's standard of weight was different from that adopted at the house search. The omission to refer to the weight of the thali assumes importance from the fact that in the case of the beruas found on Tribeni's concubine the learned Sessions Judge mentioned the possible loss of weight while the weight of the thali is in excess of what was mentioned by Biswanath, and also from the fact that apart from the thali there is no evidence against Ramsawarath. On the evidence I cannot imagine how the thali can be positively said to be Biswanath's, and I doubt whether the Jury would have said so if their attention had been drawn to the question of the weight. 1 would, therefore, set aside the verdict against Ramsawarath Singh on the ground that it is erroneous by reason of a non direction amounting to a misdirection. In my opinion Ramsawarath's is also not a case for a retrial having regard to the evidence available.
27. The result is that I would allow the appeal of Tribeni and Ramsawarath, set aside their convictions and sentences, and acquit them. I would confirm the convictions of the five appellants in the other two appeals. The sentences passed upon them do not call for interference.
Macpherson, J.
28. I agree.