Patna High Court
State Of Bihar vs Madanlal Agarwalla And Ors. on 5 July, 1965
Equivalent citations: AIR1967PAT63, 1967CRILJ237, AIR 1967 PATNA 63, 1966 BLJR 133
JUDGMENT Bahadur, J.
1. This Government Appeal, under Section 417 of the Code of Criminal Procedure, is against an order of acquittal passed by a First Class Magistrate of Baghmara, in the district of Dhanbad. Three of the respondents, namely, respondents 1 to 3, were tried on charges under Sections 457 and 380 of the Indian Penal Code and the fourth respondent namely, respondent No. 4, was tried on charge under Section 411 of the Indian Penal Code.
2. The prosecution case, in substance, is that Mangilal Agarwalla (P. W. 5), the informant, has a wholesale cloth shop at Panchgarhi Bazar, within Police Station Katras, located in the house of respondent No. 1, on rent. On the night of the 13th and the 14th June 1962, when his shop was locked and was unattended to by his family members, a theft was committed by breaking open the locks of the shop. Mangilal Agarwalla learnt about the theft when he came to the shop next morning, on the 14th June 1962, and discovered that huge quantity of cloths worth about Rs. 8,000 was missing. He went to the Police Station, but as the Officer-in-charge was not present there, he informed about it to the constable who was on duty. It appears that the Junior Sub-Inspector of Katras Police Station (P. W. 6) was on Special Muhar-ram duty on the 14th June 1962, at about 7 a.m. at Panchgarhi. He received information about the theft in the shop of P. W. .5 in the preceding night. He, thereafter, reached the shop at about 7.30 a.m. and received a written report from Mangilal Agarwalla, which is marked as Ext. 7. He forwarded the same to Katras Police Station through Havildar Bhimeshwar Singh (P. W. 1) and a formal first information report was drawn up by the Officer-in-charge on its basis, which is marked as Ext. 8. The investigation of the case was entrusted to the Junior Sub-Inspector (P. W. 6) who examined the informant Mangilal Agarwalla. He inspected the place of occurrence which consisted of two rooms and they were full of cloths. He found that cloths were stolen from the room lying at the east of the house and they had been removed from the gap. Other disturbed state of the room and cloth due to removal were also noticed. He found that the electric pole had no bulbs and they were broken. He further found that three locks were found lying broken there, but he did not seize them as they did not appear to him to bear any finger prints. Respondent Madanlal Agarwalla's residential house was in front of the shop of Mangilal Agarwalla (P. W. 5) from where the cloths had been stolen.
3. At about 10.30 P.M. on the same night, namely, 14th June 1962, the Junior Sub-Inspector (P. W. 6) got some confidential information about the storage of stolen articles and he, therefore, went to the spot along with Havildar Bhuneshwar Singh (P. W. 1) and some constables. At 11.30 P. M. the same night, P. W. 6 again received certain information about the storage of cloths. Next morning on the 15th June 1962, at about 4 A. M. the Sub-Inspector took down the statement of Madanlal Agarwalla and he also had talks with the other respondents, namely, Kedarnath Agarwalla, Khemi Ram and Bansi Goala. Respondent Kedarnath confessed that he had stolen cloth in complicity with accused Madanlal, Bansi and Khemi and stored them in the room behind his cloth shop, which he was prepared to show. Bansi and Khemi also confessed to P. W. 6 their guilt, whereupon P. W. 6 went to the room which was referred to by Kedarnath. Kedarnath opened the room which was bolted from within at its western exit. Kedarnath pointed out the cloths stored in that room and said that they were the stolen cloths. Madan Lal was also standing close to the room near its western exit which opened towards a lane. P. W. 6 seized seven gunny bags containing new cloths and one Ganth on which it was inscribed "Rajdut", "M. L. A.", "Shalimar" He also seized several pairs of Dhpties and other cloths and prepared a seizure list which is marked Ext. 9/1. Thereafter, at about 9 a.m. in the morning, P. W. 6 took the three respondents Kedarnath, Bansi and Khemi to the Police Station.
4. After completion of the Investigation, the four respondents were put on trial, with the result indicated earlier.
5. The defence of the respondents at the trial was that they had committed no offence and had been falsely implicated.
6. The learned Magistrate held that it had not been proved that the cloths belonged to the informant (P. W. 5), and there was no sufficient evidence of theft or that the three; accused persons had committed theft and the fourth one had received the stolen property. He, therefore, held that the prosecution case was not reliable and acquitted the accused persons as already stated.
7. The various contentions raised on behalf of the appellant by learned Standing counsel are: (i) The judgment of the Magistrate is not in accordance with law; (ii) The statements made by Kedarnath, Khemi and Bansi which led to the discovery of the stolen articles, as pointed out by them, are admissible. In other words, the Magistrate had put a wrong construction on Section 27 of the Evidence Act; and, (iii) The conduct of respondent No. 1 Madanlal by being an absconder showed that he was guilty.
8. I shall first take up the first point raised by learned Standing Counsel. There can be no doubt that the learned Magistrate has extensively used portions of the case diary while dealing with the facts of the case. A perusal of the judgment of the learned Magistrate shows that he has used the statements contained in the Police diary as if they were substantive evidence in the case, and there is absolutely no indication as to what are the contradictions which the witnesses have made. In fact, practically the whole of the judgment of the learned Magistrate contains reproduction of the statements noted in the case diary and the Magistrate appears to have made a wrong approach in considering the facts and the law arising in the case. It is now well settled, as a result of a large number of decisions, that statements made before the Police can never be used as substantive evidence in favour or against the accused or the prosecution. The only use that is permitted is that the defence is entitled to contradict a witness, called for by the prosecution, with reference to his earlier statement before the Police, but the prosecution cannot. Section 162 of the Code of Criminal Procedure lays down in the most positive manner that, apart from the privilege extended to the accused, the statement to the Police shall not be used for any purpose at the trial. See for instance Dhaneshwar Thakur v. State, AIR 1938 Pat 412 and Baladin v. State of Uttar Pradesh; AIR 1956 SC 181.
9. Mr. Nageshwar Prasad, appearing for the respondents, very frankly informed me at the very outset that in the present case he will defend the respondents, but not the judgment of the Magistrate which was pronounced in his favour. I would again revert to the judgment of the Magistrate at its proper place. But the question that remains to be considered is, as learned Standing Counsel haw suggested, as to whether it should be ordered that the case be retried. Having heard learned Standing Counsel and learned counsel for the respondents, I do not think that it is necessary to order retrial in this case, even though the judgment of the Magistrate is unsatisfactory, because no question of jurisdiction is involved in this case. No party has claimed that any new material will be forthcoming. A re-trail would mean expense, harassment and delay. In my opinion, therefore, this case has to be decided on the materials already on the record.
10. The next point is whether the statements made by the three respondents other than respondent Madanlal, is admissible within Section 27 of the Evidence Act. The witnesses to the statements are Havildar Bhuneshwar Singh (P. W. 1), Kamalapat Ram Gupta (P. W. 4) and the Investigating Officer (P. W. 6) The evidence of these three witnesses is identical and the evidence of the Junior Sub-Inspector (P. W. 6), is to the following effect:
"Kedarnath confessed that he had stolen the cloth in complicity with accused Madanlal, Bansi and Khemi and stored them in the room behind his cloth shop which he was prepared to show (noted under serious objection of the defence). While I had talk with Kedar (accused), Madan Lal (accused) was not there. Bansi and Khemi too confessed their guilt. I then went to the room which was referred to by accused Kedarnath Agarwalla. I asked the (Havildar) to bring Madanlal Agarwalla also. I picked Kamalpat Ram Gupta and Bola Ram Agarwalla also on way as witnesses. I searched near the room in question in the early morning before 5.30 a.m. Madanlal came near the room when I was taking out clothes. Kedar opened the room. One room in the west having two exits, are facing the shop and the other at the opposite end, was the place for storage of cloth. Kedar opened the front room after opening the lock and through that room myself along with Havildar, Bhuneshwar Singh, two constables, two search witnesses, Kamalpat Ram and Bhola Ram, and accused Kedar, Khemi and Bansi, made entry in the room lying at the western side. The room was bolted from within at its western exit. Kedar pointed out clothes stored in that room and said that they were stolen clothes."
11. It appears, as far as I have been able to gather from the judgment of the learned Magistrate, that the statements made by the accused persons were at a time when they were not in the custody of a Police Officer; so he excluded the said statements as being inadmissible. Learned Standing Counsel has contended that the statements made to P. W. 6 should be held to be admissible, at least that portion which led to the discovery of the cloths as a result of being pointed out by "the accused persons. He also submitted that the following sentences taken from the evidence of the Sub-Inspector (P. W. 6), namely, ".... .stored them in the room behind his cloth shop which he was prepared to show ..... Kedar opened the room .....Kedar pointed out clothes stored in that room and said that they were stolen clothes" is clearly admissible under Section 27 of the Evidence Act. It was further pointed out that it has not been suggested in the cross-examination of the Investigating Officer that the accused persons had not made those statements. It has, therefore, been submitted that it is now too well settled that, the portion of the statement regarding the place which was pointed out and ultimately led to the discovery of the stolen articles would clearly be admissible in law. Reliance has been placed, and not disputed by learned counsel for the respondents, on the decisions in K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788 at p. 1792. It is, therefore, not necessary to deal with this matter in detail because there is no dispute to the admissibility of this portion of the statement. Learned Standing Counsel has further submitted that the ground given by the learned Magistrate that since the accused persons were not in custody as such, the statements were clearly inadmissible under Section 27 of the Evidence Act is wrong; because "custody" does not mean physical custody by arrest. Reliance has been placed for this proposition upon the case of State of Uttar Prauesh v. Deoman Upadhyaya, AIR 1960 SC 1125 wherein it was held that when a person not in custody approaches a Police Officer investigating an offence and offers to give information leading to the discovery of a fact having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the Police and may be deemed to be in the "custody" of the Police Officer within the meaning of Section 27 of the Evidence Act. In an earlier case of this Court in Santokhi Beldar v. Emperor, AIR 1933 Pat 149 a Special Bench held that when a person states that he has done certain acts which amount to an offence, he accuses himself of committing the offence; and if he makes the statement to a police officer, as such, he submits to the custody of the officer within the meaning of Section 46(1) of the Code of Criminal Procedure and is then in the custody of a Police Officer within the meaning of Section 27 of the Evidence Act. There can therefore, be no doubt that on the facts of this case, the three accused persons who made the statements to the Police Officer (P. W. 6) were in "custody" of the Police Officer within the meaning of Section 46(1), of the Code of Criminal Procedure and Section 27 of the Evidence Act. In my opinion, therefore, the statements referred to above are clearly admissible in evidence. But this would not conclude the matter so far as the respondents are concerned.
12. Learned Standing counsel has submitted that it has been established by reliable evidence that there was theft of the cloths in question. He has taken me through the evidence of the four witnesses, namely, Havildar Bhuneshwar Singh (P. W. 1), Kamalpat Ram Gupta (P. W. 4), Mangilal Agarwalla (P. W. 5) and the Investigating Officer (P. W. 6). Learned counsel for the respondents, on the other hand, submitted that it has not been established by any cogent evidence that there had been theft or anyone had entered into the shop and removed the articles as alleged by the prosecution. This leads me to the consideration of the evidence of the four witnesses referred to above. Havildar Bhuneshwar Singh (P. W. 1) has stated that on 15-6-1962, he had gone with the Investigating Officer (P. W. 6) to the house of respondent Madanlal Agarwalla at about 5 a.m. and had witnessed the search made by him. He stated that the materials had been recovered from a room which had two doors, and were contained in seven gunny bags and one intact bundle. This witness, therefore, proves that there was a theft. Kamalpat Ram Gupta (P. W. 4), who is a businessman and lives in the same Mauza Panchgarhi, has stated that he learnt of the theft on the 14th June 1962, when he was going through the road at 8 a.m.. and saw Police Officer at the shop of Mangilal Agarwalla. The informant (P. W. 5) has also stated that there was a theft in his shop in the night of the 13th and the 14th June 1962, when it was not attended to by any of his family members. It had been locked in the night and he got information of the theft when he came to his shop in the next morning. He found the locks broken and the bulb of the electric pole which was close to his shop was also found to be broken. He has also stated that on entering the shop, he found that huge quantity of cloth was missing and cloth worth Rs. 8,000 was stolen. He has also given some description of the cloth of the shop. The F. I. R., drawn up on the statement of P. W. 5, contained a list of 13 items of cloths and therein it was mentioned that on verification he would be able to say if any other articles had been stolen. It is true that he did not file any supplementary list, but it was not necessary in view of the fact that in the morning of 15-6-1962, he learnt that his cloths had been recovered. He was present at the time the Sub-Inspector was preparing the list of cloths recovered and he claimed them as his.
13. Then there is the evidence of the Investigating Officer (P. W. 6), the substance of which has already been stated earlier. The Investigating Officer (P. W. 6) found various signs of theft, such as the broken locks and the disturbed condition of the room. In my opinion, the evidence of P. W. 6 lends support to the evidence of the complainant (P. W. 5) that there was a theft of cloths of huge quantity from his shop on the night in question. I am, therefore, satisfied that there is sufficient and reliable evidence that there was a theft in the shop of Mangilal Agarwalla (P. W. 5) on the night of the 13th and the 14th June 1962.
14. The next question that, however, arises for consideration is whether the three respondents 2, 3 and 4 are guilty of the offence for which they were charged. In other words, whether there is sufficient and reliable evidence against them so as to convict them under sections 457 and 380 of the Indian Penal Code. Learned Standing Counsel has contended that there is evidence on the statement made by Kedarnath as well as the other two respondents, that Kedarnath had stored the stolen goods behind his cloth shop which he was prepared to show. P. W. 6 then went to the room pointed out by Kedarnath, and Kedarnath opened the room and pointed out cloths which were stored in that room and said that they were stolen cloths.
The submission of learned Standing Counsel, if I have understood him aright, is that as a result of the statements made by the three accused persons, the stolen articles had been recovered; and they had, therefore, knowledge of these stolen articles and would thus be said to be in possession of the same. On the other hand, learned counsel on behalf of the respondents, has contended that even the discovery as a result of the statements made by the three respondents was suspicious and not free from doubt. To support his contention, learned counsel urged that the informant (P. W. 5) had only given some description of some cloths which had been stolen, but there is no evidence that these three respondents were responsible for their removal or that anybody had seen them so doing. His further contention was that no neighbour has been examined to prove the theft by these respondents and there was no corroborative evidence, so far these respondents were concerned, that they were responsible for removing the cloths. Learned Standing Counsel has urged that the mere fact that the respondents had pointed out and the stolen goods had been recovered was in itself sufficient to sustain the conviction of theft. Reliance has been placed on a decision in Udai Bhan v. State of Uttar Pradesh, AIR 1962 SC 1116. But this case is clearly distinguishable on facts. In that case, the complainant had locked his shop and went out for a short while. On his return, he found his shop broken open and boxes containing cash and cloths stolen. He was told by two prosecution witnesses and others that they had seen the accused persons carrying away the boxes. The accused, when asked about the stolen property, brought out a box from a pond near his field and handed it over to the police. The accused also handed over to the police the key which fitted the lock and said that he had opened the lock of the shop of the complainant with that key. Recovery memos were prepared in which the police had stated those matters relating to recovery. It was there held that the evidence in regard to the discovery of the key as well as the box was admissible in evidence under Section 27 of the Evidence Act. It has been urged by learned Standing Counsel that on the authority of this decision, it should be held in the instant case that as the three respondents had pointed out the place which led to the discovery of the stolen articles, it would be sufficient to hold that they were in possession of those goods and as such had committed the theft. Learned Standing Counsel also submitted that a presumption of their guilt would arise under Section 114 of the Evidence Act, because the three respondents were in possession of the stolen goods soon after the theft and had not accounted for their possession.
In my judgment, these contentions are unsound and must be rejected. In AIR 1962 SC 1116, the accused persons were not convicted on merely pointing out the articles which had been stolen. They had been seen carrying the boxes in the neighbourhood and had later pointed out which led to their discovery. So far as the presumption under Section 114 of the Evidence Act is concerned, learned Standing Counsel relied on a decision in Moti Lal v. State, AIR 1959 Pat 54. This was a case in which the accused was convicted under Section 411 of the Indian Penal Code and the point that arose for consideration was the Interpretation of Section 27 of the Evidence Act. In that case, there was a theft in the house of a certain person and an alarm was raised and the thieves were seen running away with valuables and articles from the house, but they could not be caught. During the course of the investigation, the Sub-Inspector had received some information against me accused persons about their complicity in the crime. Later, the accused persons were apprehended and when questioned, they were said to have given out that they had kept some utensils in a stream which was close to their house. On getting such information from the accused, the Assistant Sub-Inspector went to that stream and the accused persons were said to have pointed out to him that place, and one of them took out the utensils from the said stream. Further, the two accused also pointed out a well in their house as a place where some ornaments had been concealed. After elaborate discussion of the facts and the law, it was held in that case that the utensils (stolen property) taken out from a public stream by the accused could be held to be in possession of the accused from the fact of his going alone to the said stream and taking out the utensils, when others failed to do so, from the place of concealment in the stream. It was further held that that fact lent support to the conclusion that it was within his exclusive knowledge as to where the utensils were kept concealed in the stream, and from that fact of knowledge, an inference could be drawn under Section 114 of the Evidence Act, in absence of any other thing on the record to show as to how the accused had knowledge of those things, that he had knowledge because he kept them there and therefore he had control over those articles and had the conscious possession of them. It was further observed in that case that there may be cases where a Court may not be justified in presuming possession of the person who had mere knowledge of the articles placed; but there may be cases where the articles are concealed in a place about which the particular person had the knowledge and it may be assumed in such cases that the articles were in his possession. Their Lordships, therefore, held that so far as the recovery from the well was concerned, no such presumption could arise, because the mere knowledge by the accused of the ornaments being in the well was not sufficient to lead to the inference that he was in possession of those ornaments. There was no evidence as to who had kept the ornaments in the well. In my opinion, therefore, it is not possible to hold in this case that there is sufficient and reliable evidence to connect the three respondents with the theft in question. For these reasons, I am not satisfied that the three respondents, namely, Kedarnath, Khemi and Bansi, could be found guilty of theft because they pointed out the articles which led to the discovery of the stolen articles.
15. So far as the charge under Section 457 of the Indian Penal Code is concerned, there is absolutely no evidence on the record to show that the respondents had committed lurking house trespass by night to commit theft. This charge must also, therefore, fail.
16. So far as respondent Madanlal Agar-walla is concerned, he had been charged under Section 411 of the Indian Penal Code. Learned Counsel for this respondent submitted that the ingredients of the offence under Section 411 of the Indian Penal Code have not been established. It was urged that it had not been established that the properties were stolen. In view of my finding that there was a theft in the shop of the informant (P. W. 5), it is not necessary to deal with this matter any further. So far as this respondent is concerned, the only witness is the informant (P. W. 5). He had stated that one Ganth containing Dhoti was stolen and the rest of the cloths were kept arranged here and there, and that Ganth was marked "M. L. A." and that mark was given in the Mill from where the despatch was made. It has been elicited from him in cross-examination that there was no special mark on the Ganth and they are commonly found in the markets and that mark is not of the Mill but of Arhatias. Further, it has been elicited from him in cross-examination that the Brjaks which he had produced were not produced by him before the Police. Other points taken by learned counsel were that it has not been established from whose possession the stolen cloths had been recovered or, that the room from which the recovery had been made was in exclusive possession of respondent' Madanlal Agarwalla. In fact, the Investigating Officer (P. W. 6) has stated in his cross-examination that Madanlal had not pointed out the stolen cloths nor he had given out the Clause (sic) of the case, though he was present outside the room when the recovery was made. The only evidence against him was, as contended by learned Standing Counsel at one time, that the recovery was made in his presence, and that he had given the key from his possession which was handled by Kedarnath in opening the room. Learned Standing Counsel, however, with his usual fairness, later conceded that it was not possible for him to place his case any higher against respondent Madanlal Agarwalla then what he had already done. Having heard learned counsel for the State, as well as for respondent Madanlal Agarwalla, I think that the prosecution has failed to bring home the charge under Section 411 of the Indian Penal Code against respondent Madanlal Agarwalla.
17. There is no merit either in the submission of learned Standing Counsel that the conduct of this respondent in having suddenly left the place when the Sub-Inspector (P. W. 6) was preparing seizure list, shows his guilty knowledge. In the view that I have taken, it is not necessary to pursue this matter any further.
18. Before I part with this case, I consider it necessary that I should make some observations regarding the approach of the learned Magistrate in appreciating the evidence-It will be recalled that I have already found the Magistrate's judgment to be unsatisfactory because it suiters from glaring infirmities. The judgment shows that the Magistrate has not chosen words to show decorum and restrain. Take for instance :
(i) "..... since prosecution was fast losing its quorum of witnesses it included Bhuneshwar also us an eye-witness to the search under the hope that he being a police witness would be deposing on dictation from the prosecution."
(ii) "The facts which he has stated in chief are not covered by the case diary. Prosecution may argue that he has lost brain due to nervousness, But I drop such pleas from consideration."
(iii) "I am sorry prosecution had to include him in the panel as its witness. Evidences of such witnesses give ground to comment that in Industrial areas to which category Katras belongs, one is capable to keep material and money of considerable amount at stake to build up evidence against innocent hands to satisfy some of their whims. In Industrial belt where money and material flow down the drain under the shadow of evil elements of the society, fabrication of evidence by throwing a few thousands at stake and implicating innocent persons are taken as part of their daily life. Evidences of the case show similar elements behind the scene. T. reserve my final comment as two more witnesses are still to be discussed. But till now all materials have favoured the defence."
(iv) There is one more point in the diary at page 7 of the case diary which creates reasonable doubt about theft."
(v) "In chief he (T. O.) has added that the contents of the rooms were disturbed. This is not in the diary at page 7 which mentions about certain marks of removal only."
(vi) "The diary is totally vague on this point."
(vii) But in this case omissions are overwhelming and most damaging to the prosecution. If prosecution suggests to pick up truth from falsehood it will (?) crisis of wisdom and total disregard of laws and justice which nurse human values."
These are also more in the nature of homily. There can be no doubt that a Magistrate is free to express judicial opinion in the matter before him, but in this case the Magistrate has not only expressed his opinion in irresponsible manner but appears to have lost sight of the law as he was obviously not aware of the elementary provisions of Section 162 of the Code of Criminal Procedure. He would be well advised to acquaint himself with the provisions of Section 367 of the Code of Criminal Procedure which deals with the language and the contents of a judgment. I hope that no further occasion will arise for a comment of this nature.
19. The result is that the appeal fails and is dismissed. The bail bonds of the respondents shall stand discharged.