Daroga Singh vs King-Emperor

Kulwant Sahay, J.—The Petitioner was convicted of an offence u/s 411 of the Indian Penal Code and sentenced to three months'' rigorous imprisonment by the Sub-Deputy Magistrate of Muzaffarpur. The conviction and sentence have been affirmed by the District Magistrate on appeal. The principal points argued by the learned Vakil for the Petitioner are: First, that the identity of the accused as the person who sold the bullock to Bishundeo Rai has not been established, and, secondly, that the evidence on the record to prove the plea of alibi is sufficient.

The facts of the case are shortly these: One Narak Singh of village Balthi had a bullock which strayed away from his house sometime towards the end of September 1923; subsequently, sometime in November, 1922, he found the bullock tethered in front of the house of one Bishundeo Rai of Nakardewa. Bishundeo Rai is alleged to have told him that he had purchased the bullock at the Madhuban Mela from one Daroga Singh of Shampore and he refused to make it over to Narak Singh; Narak Singh thereupon went to the Police and the Sub-Inspector, had the bullock brought to the thana and impounded it. Prosecution was started at the instance of the Police and warrant for the arrest of Daroga Singh was issued on the 31st December, 1922. The accused, however, could not be arrested for about six months as the warrants were sent to the wrong thana and the address of the accused could not be properly ascertained. The accused surrendered in court on the 27th of June, 1923. The trial did not commence until 18th of August, 1923, on which date eight prosecution witnesses were examined-in-chief and the case was adjourned to the 5th September, 1923 on an application on behalf of the prosecution who applied for summoning new prosecution witnesses. On the 5th of September, 1923, only one prosecution witness was present who was examined-in-chief besides the Sub-Inspector, and the case was again adjourned to the 22nd of September, 1923, on an application on behalf of the prosecution. On the 22nd September, two new prosecution witnesses were examined-in-chief and the charge was framed. The case was fixed for 11th October, 1923 for defence and argument. Thereafter the Court Sub-Inspector prayed for summoning further prosecution witnesses and the learned Magistrate ordered summons to be issued to them as court witness. On the 11th of October, 1923, none of the court witnesses who had been summoned on the previous date was present and it was found that the defence witnesses had not been at all served with summonses. The court thereupon ordered the court witnesses and the defence witnesses to be summoned and fixed 7th of November, 1923. On the 7th of November, the court examined two witnesses on behalf of the prosecution and again ordered the issue of fresh summons on another witness Janglal and adjourned the case to the 27th of November; the case, however, could not be taken up on the 27th of November, as the trying Magistrate had been temporarily transferred to Sitamarhi and it was ultimately taken up on the 4th of January, 1924, when the remaining prosecution witness, Janglal, was examined, the defence witnesses were examined and arguments were heard.

The case for the Petitioner is that it was not he who sold the bullock to Bishundeo in the Madhuban Mela and that it is a case of mistaken identity, and that on the date on which the bullock is said to have been sold to Bishundeo he was not in the Mela at all but was at Majowna in the District of Saran where he had gone with collections to his zamindar on the Dasahra Touzi day.

The learned Vakil for the Petitioner has invited me to go through the evidence in the case in order to satisfy myself that the conviction of the accused is proper. His case is that the findings of the learned Magistrate are not supported by the evidence, and as regards the question of alibi the learned District Magistrate has not dealt with the evidence properly. On the other hand, the learned Assistant Government Advocate contends that it is not open to this Court in revision to took into the evidence and that the findings of fact arrived at by the courts below must be taken as correct and the conviction can only be set aside on a point of law.

Ordinarily this Court will not in revision go through the evidence in order to satisfy itself about the propriety and correctness of the findings of facts arrived at by the lower courts; but in certain circumstances it is not only open to this Court to examine the evidence but it is its duty to do so. The question as regards the competency of this Court to examine the evidence in order to satisfy itself about the correctness of findings of fact in revision was fully discussed in the case of Ramkishun Misser v. Emperor (1917) 2 Pat. L.W. 298 where Mr. Justice Jwala Prasad, after a very careful and elaborate examination of the law on the subject and the rulings of the different High Courts came to the conclusion that this Court is not debarred from entering into a discussion of and looking into the evidence and the facts in order to And out if there has been a miscarriage of justice. His Lordship quotes the observations of Sir Lawrence Jenkins, C.J., in Emperor v. Bankatram Lachiram (1904) 28 Bom. 533 where the learned Chief Justice examines the powers of the High Court under Sections 435 and 439 of the Code of Criminal Procedure and observes as follows: "The Legislature could not have expressed itself with greater clearness, but it has been suggested that the courts have imposed on the plain terms of these Sections a gloss which narrows the scope of the discretion vested in the High Court," and, after recalling the words of an eminent English Judge to the effect that "the controlling power of the court is a discretionary power, and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances, which vary greatly"; and that "this discretion ought not to be crystalised as it would become in course of time by the Judge attempting to prescribe definite Rules with a view to bind other Judges in the exercise of the discretion, which the Legislature has committed to them. This discretion, like all other judicial discretions, ought as far as practicable to be left untrammelled and free so as to be fairly exercised according to the "exigencies of each case;" the learned Chief Justice ends his observation with the remarks: "These weighty words appear to me to breathe the spirit that should guide us in the exercise of our discretionary powers of revision. This may perhaps increase our responsibilities and add to our labours but no one would shirk the one or grudge the other." Mr. Justice Chapman in the case of Ramkishun Misser v. Emperor (1917) 2 Pat. L.W. 298 agreed with Mr. Justice Jwala Prasad and made an attempt to state the principles which should guide the courts in revision when the question is whether a finding of fact should be interfered with in a case in which there has been no error of law in the strict sense of the term, and his Lordship laid it down that "this Court will not look into the evidence at all unless the applicant in revision can make out that a special occasion has arisen which requires this Court to look into the evidence."

Whether such occasion has arisen in a particular case depends upon a number of circumstances. In the present case having regard to the proceedings and the trial in the first court and to the fact that Mr. Pal after himself having gone through the evidence and satisfied himself, assures the court of the desirability of examining the evidence, I thought it proper to look into the evidence to satisfy myself as regards the propriety of the conviction. An examination of the evidence and the circumstances in the present case have satisfied me that the conviction of the Petitioner cannot be sustained.

The trial of the case lasted from 18th of August, 1923, up to the 4th of January, 1924. The case was started, so long ago as the 31st of December, 1922, and although the accused surrendered six months later yet the frequent adjournments leading to a protracted trial extending over another six months after his surrender in a petty case like the present one is certainly not commendable. Six out of the eight witnesses who were examined on the first date failed to identify the Petitioner as the person who had sold the bullock to Bishundeo. Only two of them, namely, Bishundeo himself and Dowarik Ojha (P.W. 8) were able to identify him on that date. Of the witnesses who were examined on subsequent dates only Keshab Ojha (P.W. 11) and Rajdhari Rai (P.W. 12) who were examined on the 22nd September, 1923, were able to identify him. Two prosecution witnesses, Jhaboo Rai and Jung Rai (P.W.s 6 and 7) made an attempt to identify the accused but failed miserably. Jhaboo Rai at first said that his eye-sight was dim and he was allowed to go out of the witness-box to th2 place where the accused was standing but was unable to identify him. Jung Rai caught hold of one Jata Singh as the person who had sold the bullock and could not identify the Petitioner Daroga Singh. From these circumstances it has been argued that when the prosecution witnesses examined on the first date failed to identify the Petitioner a fresh batch of witnesses were called in at a much later date and attempts were made in the interval to acquaint these witnesses with the feature of the accused so as to enable them to identify him in the dock. Having regard to the fact that all the prosecution witnesses assert that they had never seen the accused any time before the alleged date of sale, and that it is not probable that a man would remember the face of a person from whom a bullock had been purchased several months ago, I am not satisfied that the evidence of identification is sufficient in the present case. The most important witness in the case is the prosecution witness No. 15 (Jang Lal). He was the clerk deputed by the Mela authorities to issue receipts to purchasers at the Mela and he has proved the receipt (Ex. 1) as having been issued by him to Bishundeo; this receipt is on a printed form and it gives the name of the person who sold the bullock as Daroga Singh, inhabitant of Shampore, thana Sheohar and the name of purchaser as Bishundeo Rai of Nakardewa, thana Madhuban for a price of Rs. 36. Now, this witness Jang Lal could not identify the accused and there is nothing unusual in this: it was not possible for him to identify all the people who had been to the Mela either to sell or to purchase bullocks; but what is of importance is that he swears that the particulars entered by him in the receipt were written out by him at the dictation of Bishundeo and not as those given by Daroga himself. He says that at the time he wrote the receipt he wanted Daroga Singh but Bishundeo said that Daroga was in the Mela and that the toll which was payable by the seller was paid by Bishundeo himself on the allegation that Daroga Singh had gone away. He further says that he was not present at the time the accused Daroga entered into the transaction with Bishundeo, and that at the time Bishundeo told him that he had purchased the bullock for Rs. 36 Daroga was not present there. This is directly contradicted by Bishundeo who says that the particulars were supplied to the clerk by Daroga himself and that the clerk who granted the receipt asked the name of Daroga, his village, thana and district; he further says that the man who granted the receipt was standing behind him and the seller and the companions of Bishundeo. There are other discrepancies in the evidence of the prosecution witnesses, such as whether Bishundeo had or had not enquired the name and address of the seller before payment of the price, and as to whether the clerk was or was not present at the place where the transaction took place and having regard to the improbability of a person remembering the face of a man who had sold a bullock in a big Mela whom they had never seen before, nor is there any evidence of their having seen him afterwards, I am not prepared to say that there has been a proper identification of the accused as the man who sold the bullock to Bishundeo in the Mela.

As regards the plea of alibi, it appears that the sale in the Mela took place on the Dasahra day. Defence witness No. 1 who is a respectable zamindar swears that on that day the accused, who is his collecting agent, had gone to his place at Majowna in the District of Saran with the collection money and was there on the Dasahra day on which day he holds his Touzi and receives collections from his villages. There is no reason why this respectable zamindar should not be believed. The only ground upon which the learned trying Magistrate refused to accept the plea of alibi was that the zamindar (D.W. 1) could not say that the accused was all along with him during the 24 hours; this to my mind is not sufficient to disbelieve the story of alibi. Upon this evidence it must be believed that the accused was at Majowna in the District of Saran on the Dasahra day, and if that is believed, the story of the prosecution witness that the accused was in Madhuban Mela selling bullocks on that day and that he was staying there must be false. The learned District Magistrate disposed of this plea of alibi with the remarks that "it is very easy to fabricate and there is every reason for the malik to fabricate such a defence in the interest of his collecting agent." The learned trying Magistrate did not disbelieve the evidence of the zamindar (D.W. 1.); all that he says is that even if he was at Majowna on the Dasahra day, it was possible for the accused to be present on the date in the Madhuban Mela which is held in the District of Muzaffarpur. I see no reason to disbelieve this plea of alibi and I am not satisfied that the petitioner was present in the Madhuban Mela and that it was he who sold the bullock in question to Bishundeo Singh.

The conviction and sentence must therefore be set aside and the accused be set at liberty.