Chandrama Prasad Chamar vs The State

Sen, J.—The Appellants together with others were tried by the Sessions Judge of Nadia and a jury on a charge of a dacoity. The jury by a unanimous verdict have found the Appellants guilty of that charge and the learned Judge has sentenced them to undergo rigorous imprisonment for a period of five years.

The case for the prosecution briefly is as follows: In the early hours of January 31, 1949, two dacoities were committed in the railway quarters at Chandmari. One of the dacoities was committed in the block occupied by one Binay and the other in the block occupied by one Sushil. The dacoits carried away certain articles from these two different quarters and went away. They were not recognised by any of the inmates of the railway quarters. A telephonic message was sent to Bijpur and the officer in charge of Bijpur set out with some constables at about 3-30 a.m. from the Kanchrapara railway station. As he was proceeding, he met some of the dacoits and arrested them and prepared a search-list of certain articles which were found in their possession. This search-list is Ex. 7. In the meantime, another telephonic message was received by Surendra Nath Das, prosecution witness No. 34, who is "sub-inspector of Chakdah police, from the railway station at about 4-30 a.m. He made a general diary entry of this message and then went to Chandmari in the morning to the houses or the blocks where the dacoities took place. There a written report was made over to him by Bibhuti Bhusan Guha, prosecution witness No. 1 and together with this report was a list of articles stolen, which is Ex. 1. Investigation proceeded and as a result thereof the Appellants and others were sent up for trial. The defence of the Appellants was that they were not guilty and that they had nothing to do with the dacoities. The Appellants Chandrama Prasad and Ram Raj state that they were returning from a feast and they had been arrested for no crime committed by them. They denied that they were with the other persons who were arrested at or about that time. The Appellant Manilal works in the Medical College Hospital. He was arrested there. He says that he was on duty at the Medical College Hospital and that he had nothing to do with the dacoities.

I shall endeavour to place briefly the main points upon which the prosecution relied to establish the guilt of the three Appellants. As against Chandrama, the evidence relied upon relates to the alleged finding of certain articles upon his person. That is one piece of evidence relied upon and the other piece of evidence relied upon is the foot-print on one of the boxes which the dacoits had taken away. The foot-print tallied with the foot-print of Chandrama Prasad. These are the two circumstances upon which the prosecution relied so far as Chandrama Prasad is concerned. As regards the Appellant Ram Raj the prosecution relied upon nothing else but the alleged finding of the articles upon him. So far as the third Appellant Manilal is concerned there is no evidence that any article which was taken away by the dacoits was found upon him, but it is said that the impression of the palm of a hand in one of the glass-panels of a door which had been broken by the dacoits corresponded with an impression of Manilal''s hand taken by a fingerprint expert.

The first point raised on behalf of the Appellants is that the accused have been prejudiced by reason of the defective nature of the charge framed in this case. The charge is in the following terms:

That you, on or about January 31, 1949, at Chandmari, police-station Chakdah committed dacoity in the houses of Binay Bhusan Guha and Sushil Kumar Pait and thereby committed an offence punishable u/s 395 of the Indian Penal Code and within the cognizance of the Court of Sessions.

Learned advocate for the Appellants argues that there should have been a distinct charge with respect to each of the dacoities in each of these houses and that a rolled-up charge of this nature is not permitted by the law and that it has led to the Appellants being prejudiced. In our opinion, this criticism of the charge is well grounded. Section 233 of the Code of Criminal Procedure provides that for every distinct offence of which any person is accused there shall be a separate charge. This provision of Section 233 of the Code has not been observed. We wish to emphasise that we are not at present dealing with the question of joinder of charges or of joinder of persons tried. It is true that these persons may all be tried jointly, but the law demands that, with respect to the two dacoities, there should be separate charges. Separate charges may be tried at a joint trial if the other provisions of the Code of Criminal Procedure regarding joint trial permit it, but there is no provision of law which permits of a charge of the kind framed in this case. It is impossible to ascertain from the charge whether all these persons took part in the dacoity in the house of Binay Bhusan Guha or whether all these persons took part in the dacoity in the house of Sushil Kumar Pait. If all the persons did not take part in both the dacoities, it is not possible to ascertain which of the persons took part in which dacoity. The evidence is also by no means clear on this point. We have been through the evidence and it is not possible for us to come to the conclusion that there is any evidence to show that all the persons charged took part in both the dacoities, nor is there any evidence to show which accused persons took part in which dacoity. This being the state of affairs, we are of opinion that the accused have been seriously prejudiced by this defect in the charge and we shall, therefore, have to examine the evidence and see whether the evidence would justify a conviction or not or whether the evidence is such as would necessitate an order of retrial or justify an order of acquittal.

In dealing with the case of Chandrama Prasad, I pointed out that one of the pieces of evidence against Chandrama is the foot-print. Now, we are perfectly satisfied that the evidence regarding this foot-print is quite inadequate to fasten any guilt on Chandrama. It is admitted on all'' hands that the science of foot-prints is not exact. If, however, the foot-prints show the ridges of the skin, then perhaps it may be said that the identity as regards these ridges would afford strong proof of the identity of Chandrama with the person whose foot-print was found, but in the present case, no ridges were found at all, but just a bare outline of a foot-print and it is common knowledge that it is impossible to identify a person with any degree of certainty by the bare outline of his foot-print.

The next piece of evidence relates to both Chandrama and Earn Raj. It is the alleged finding of certain articles on these persons. The officer in charge of Bijpur police-station searched the persons of Ram Raj and Chandrama together with others and he made a search-list which is Ex. 7. He says that the articles recovered from Chandrama are separately set down in the search-list from those recovered from Ram Raj. The contention on behalf of the Appellants, however, is that this is not true. The officer made a list of articles found with different persons arrested by him and subsequently bracketed certain articles and put the names of each of the suspects against them. The search-list Ex. 7 shows that the list of articles was numbered 1 to 27. Brackets were put against certain groups and the names of different persons arrested were put alongside these brackets. This is a most irregular way of making a search-list. Search-lists are made for the purpose of fastening possession of articles on a particular person. Separate search-lists should have been made with respect to each person. Further, I would point out that if it was the original intention of the officer to group the articles according to the person from whom they were seized, the articles could not be numbered in the way in which they were numbered in the search-list. Each group would begin with the number 1. Next, we find that the usual procedure which should be adopted regarding the making of a search-list was not adopted in this case. The persons who were sought to be made liable with the help of the search-list were not asked to sign or given an opportunity of signing the search-list. The officer says that he did not supply any copy of the search-list to the suspects and he did not take the signature of the suspects in the search-list. He did not even label the articles seized. These are elementary precautions which should be taken when a search-list is prepared and the failure of the officer to observe these elementary precautions renders this search-list useless. The officer is also contradicted by the search witness on a certain point. He says in his cross-examination that the articles he recovered were kept partly in bundles which each of the suspects carried and partly in the hands of the suspects. The search witness Narain Das, prosecution witness No. 16 does not support this case. He says that only one arrested person had a bundle with him. The other persons who were present at the search are the Head Constable Ram Jatan Missir and constable Nani Gopal Bhattacharjya. Their evidence does not indicate that there was any differentiation made in the search-list with respect to the articles which were seized from different persons. We find that, throughout the charge to the jury, the learned Judge was stressing upon one piece of corroboration, namely, another search-list Ex. 1. This was a search-list prepared by prosecution witness No. 1 Bibhuti Bhusan Guha after the investigating officer came to the place of occurrence on receipt of a telephonic communication at Chakdah. The learned Judge keeps on reminding the jury that the articles in Ex. 1 tallied with the articles seized on the persons of the accused. He has said this in more than one place. In doing this, the learned Judge has fallen into serious error. This list, Ex. 1, is inadmissible in evidence as it was a statement recorded after the investigation had begun and was not admissible in evidence on behalf of the prosecution by reason of the provisions of Section 162 of the Code of Criminal Procedure. It will be necessary for us to deal with the law regarding this question in some detail in order to remove certain misapprehension -which seems to be common regarding this matter. Section 161 of the Code is as follows:

(1)Any police-officer making an investigation under this Chapter or any police officer not below such rank as the Provincial Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2)Such person shall be bound to answer all questions relating to such case put to him by such officer, other than questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3)The police-officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statement of each such person whose statement he records.

It is quite clear, therefore, that Section 161 of the Code relates to statements made by persons to a police-officer making an investigation under Ch. XIV. Section 162 of the Code says:

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

Then there is a proviso with which we are at present not concerned. The proviso enacts that the defence may in certain circumstances use this statement for the purposes of the defence. It follows that any statement made to a police-officer by a person after the investigation has started is not available to the prosecution at a trial in respect of the offence which was being investigated. The question which arises in this case is whether the statement, Ex. 1, was made to the police-officer by Bibhuti Bhusan Guha, prosecution witness No. 1, after the investigation had commenced. The court below seems to have been of the opinion that the, statement, Ex. 1, was the first information report and that investigation started after Ex. 1 was recorded. In other words, it treated Ex. 1 as being the information mentioned in Section 154 of the Code of Criminal Procedure. In our opinion, Ex. 1 is nothing of the kind. If Ex. 1 amounted to an information within the meaning of Section 154 of the Code, then certainly that statement would be admissible in evidence both on behalf of the prosecution or on behalf of the defence for the purposes of corroboration or contradiction, but the statement, Ex. 1, is certainly not an information within the meaning of 8. 154 of the Code. Section 154 of the Code is in the following terms:

Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.

The information given under this section must be read over to the informant and must be signed by the person giving it. In the present case nothing of the sort was done, nor was it required to be done. Section 154 of the Code contemplates information given to the police before the police commenced any investigation. Once the police commenced an investigation, then any information given to them would not be an information u/s 154 of the Code. Now, the police may commence an investigation upon receiving information such as is described in Section 154 of the Code of Criminal Procedure. That is provided for in the Code. The police-officer may also commence investigation upon his own initiative without any information being lodged u/s 154 of the Code. This is provided in Section 156 of the Code. If the case is a cognisable case, any officer in charge of a police-station may start investigation. Thus a police-officer on mere suspicion may start investigation. If he does so, then any statement recorded by him in the course of the investigation would fall within the mischief of Sections 161 and 162 of the Code of Criminal Procedure and would not be available as evidence for the prosecution at the time of the trial. That the police may investigate without receiving any information such as is contemplated u/s 154 of the Code is made quite clear by the provisions of Section 157 of the Code of Criminal Procedure, the opening words of which are as follows:

(1) If, from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered u/s 156 to investigate, he shall forthwith, etc.

Therefore, it is quite clear that the Code recognises that an investigation may proceed as a result of an information lodged u/s 154 and also that an investigation may proceed by reason of some other material which is in the possession of the police. In this connection I would refer to the decision of the Judicial Committee in the case of King-Emperor v. Khawaja Nazir Ahmad (1944) ILR 26 Lah. 1; L.R. 71 IndAp 203. The court should, therefore, be careful when admitting statements made to the police. It should decide whether the statements are made in the course of an investigation or not. If they are made prior to the commencement of the investigation, such statements may be admitted on behalf of the prosecution. If they are made subsequent to the commencement of an investigation, they are not available to the prosecution. In considering the statements the court should be careful to see upon what material the investigation was started. It will then be able to come to a correct appreciation of whether the statements made to the police are admissible or not. In the present case the police started investigation u/s 156 of the Code of Criminal Procedure upon receipt of the telephonic message at Chakdah. That telephonic message was not a first information report, inasmuch as it did not comply with the provisions of Section 154 of the Code, but that message furnished materials to the police for action u/s 156 and the police upon those materials commenced investigation u/s 156 of the Code. Thereafter, the information contained in Ex. 1 was given to the police. That information comes within the mischief of Sections 161 and 162 of the Code and is inadmissible in evidence on behalf of the prosecution. It seems to us that the jury must have been impressed by this information contained in Ex. 1, inasmuch as the court stressed upon this statement in many parts of its charge. This error of the court has seriously prejudiced the accused. As regards the Appellant Manilal, the only evidence against him is that of the palm impression and the evidence discloses that the impression left on the piece of glass was a blurred one. There was also some evidence sought to be given regarding the whereabouts of Manilal at or about the time of the dacoity. Prosecution witness No. 25, Kamalapati Ghosh, gave evidence in the Committing Magistrate''s court to the effect that that Manilal was off duty on January 31, 1949, after 8 p.m. That evidence is of no value at all, because the dacoity took place in the early hours of the morning of January 31, 1949. Therefore, whether he was off duty or not after 8 p.m. on January 31, 1949, would be entirely irrelevant to the question whether he could have committed this dacoity or not. In the Sessions Court, however, this witness states that in the Committing Magistrate''s Court he had said that Manilal as off duty after 8 p.m. on January 30, 1949. The learned Judge has dealt with this discrepancy in his evidence in his charge in a very unsatisfactory manner. After pointing out the discrepancy he states this:

the evidence of this witness should be carefully considered and it should be ascertained whether Manilal could possibly be present in the houses of dacoity at the time of occurrence.

What he means by this observation I am entirely unable to appreciate. How can the jury be asked to ascertain something The jury can only decide a case upon the evidence adduced before it. It is no part of the duty of the jury to wander about the countryside and collect information. There is no evidence given regarding the distance of the place of the dacoity from Calcutta nor regarding the means of communication between these two places. The evidence about Manilal''s being absent is discrepant and if it were not discrepant, we do not see how that evidence could be of any assistance in arriving at any conclusion regarding Manilal''s presence at the place of the dacoity in the early hours of the morning of January 31, 1949.

In our opinion, the evidence is quite inadequate upon which to base any conviction. It is of the feeblest nature and we would not feel justified in sending this case back for retrial. We, accordingly, set aside the order of conviction and sentences and acquit the Appellants.

The accused Appellants are directed to be set at liberty forthwith.

The appeal is allowed.

Chundke J.

I agree.