Emperor vs Wajid Sheikh and Others

Rowland, J.—This appeal has its origin in a dacoity case in which 22 accused were committed to the Sessions on a charge u/s 395, I.P.C., in respect of a dacoity committed in the house of Baldeo Bhagat in village Ranipur, P.S. Maheshpur, on the night between 6th March 1932 and 7th March 1932. Of these 22 six were convicted and 16 acquitted. The appeal is presented against those 16 persons. It is contended by the Grown that all the 22 accused ought to have been convicted. The trial was held with the aid of four assessors of whom three thought that all the 22 accused were guilty while the fourth was of opinion that Taiyab was not guilty and that the remaining 21 accused were guilty.

The first information was laid at P.S. Maheshpur, 9 miles distant, at 7.30 a.m. on 7th March 1932, against persons unknown. I need not repeat in detail the story of the dacoity which is given in the judgment of the Additional Sessions Judge or the course of the investigation except so far as it affects the appreciation of the evidence of the approvers and the cases of individual accused. The adjacent police station to Maheshpur on the south-east side is Malhati in District Birbhum. On the same night on which the dacoity took place P.W. 36 Nagendra Nath Ghosh, Assistant Sub-Inspector, and P.W. 25 Nalni Kant Das Gupta, Sub-Inspector of Nalhati, went out to make rounds and visited village Barsore at 10.30 p.m. They found four persons, Joyed, Mamlat, Elahi and Rabbani, absent from their houses.

They picketed their houses with choukidars. At about 2 a.m. they saw Rabbani coming towards his house with 10 or 12 men armed with lathis. Seeing the police Rabbani''s party dispersed. Most of them escaped but Rabbani made an unsuccessful attempt to enter his house by scaling the wall and was arrested in doing so. There was dust on his legs and his clothes, were torn. The Assistant Sub-Inspector remained in the village till 8 a.m. but Joyed, Mamlat and Elani did not come home. Meanwhile the Sub-Inspector left for Nalhati with Rabbani.

The Assistant Sub-Inspector then left Barsore for the thana going into villages on the way to inquire if any dacoity had been committed in the neighbourhood.

He learnt that on the night of 6th and 7th March there had been a dacoity at Ranipur. Inquiries were pursued as to what suspicious characters in neighbouring village had been absent from their homes on the night of 6th March. In consequence of certain information the Assistant Sub-Inspector of Nalhati P.W. 36 with the Sub-Inspector of Nalhati P.W. 25 went to the house of Abdul Rahman in the evening of 8th March 1932. He was arrested and made a statement. He was placed before the Magistrate at Rampurhat to whom he made a confession at 1 p.m. on 9th March 1932, implicating himself and a number of other persons. He has been given a pardon u/s 337, Criminal P.C. and has been examined as a witness (P.W. 1). The prosecution have also examined another approver Mamlat P.W. 2. Mamlat was one of those persons who on the night of 6th March had been found absent from their home and did not return the next morning.

Thereafter Mamlat was absconding till 1st April. He took refuge in the house of one Naku Mandal of village Sareha. This came to the knowledge of Masud Ali Mandal, P.W. 6, who was aware that Mamlat was wanted by the police. He sent word to the police of Nalhati in consequence of which Radha Ballabh Banerji, Assistant Sub-Inspector, P.W. 24, came to the village and found Mamlat at the house of Naku and arrested him. Mamlat made a statement and was sent to the Magistrate at Rampur Hat who recorded his confession at 11 a.m. on 3rd April 1932. The confession implicates himself and a number of other persons. He has been given a pardon and examined as witness P.W. 2. All the 22 accused who were on trial were identified by one of both of the two approvers as having taken part in the dacoity. The police took steps to arrest the persons implicated by the confessing accused and test identifications were held; 6 of the accused were identified by one or more of the eye-witnesses of the dacoity. Those six have been convicted by the Additional Sessions Judge. They appealed from jail and their appeal has already been dismissed.

As regards the remainder the learned Judge after observing that the evidence of the approver so far as the identification of the accused persons is concerned is corroborated by the direct evidence of the witnesses regarding six accused, proceeded to a lengthy discussion of certain decisions regarding corroboration of approver''s evidence, Such discussions of the decisions of other High Courts on matters which are covered by the statute itself (the words of which, strange to say, the learned Judge has omitted to recite) and by decisions of this Court are, (as was pointed out in this Court''s order on the appeal of the six convicted accused) unnecessary. Whenever it is necessary to cite a reported decision care should always be taken to cite it correctly and not to attribute to it a proposition of law which it does not support.

I say this because the learned Judge in referring to Ambica Charan Roy v. Emperor AIR 1931 Cal 697 has said:

the learned Judges, including the Chief Justice, laid down that notwithstanding the provisions of Sections 30, 114 and 133, Evidence Act, a conviction cannot be based upon the uncorroborated testimony of an approver however convincing that testimony may be.

These words the learned Judge has taken from the head-note, but if he had read the judgment itself he would have seen that the learned Chief Justice laid down no such proposition of law. The head-note is entirely misleading. The learned Chief Justice, after disposing of the cases of those accused regarding whom there was direct corroboration of the evidence of the approvers, and:

So far it will be observed that the convictions depend in no way in my judgment upon the evidence of either of the approvers and they depend in no way upon making an exception to the principle that the evidence of an accomplice is not to be believed unless it is corroborated by independent evidence implicating the individual accused. When we come to the others of the accused however it is important to take a careful estimate of the value attributable to the evidence of the approvers and the evidence of the confessing co-accused.

Thereafter he proceeds to estimate the value of the evidence and of the circumstances relied on by the prosecution as corroborative. It is expressly stated that:

Section 14 puts as one of the things that a Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars; and in a later portion of the section, certain qualifications are laid down which show that the legislature when it says ''may presume'' means what it says and does not mean shall presume.

The settled practice always to make this presumption is then referred to and the learned Chief Justice says:

I cannot in the case of these accused dispense with the reasonable caution which requires independent corroboration.

And again he says:

I am not prepared in the case of Ambica to depart one jot or tittle from the principle which it is the practice of this Court to follow. I am not prepared to sustain Ambica''s conviction on the mere evidence of the approvers backed by Narayan''s confession.

I cannot find that in coming to this decision the learned Chief Justice has laid down any new rule of law and I am sure that he would be last to support the proposition imputed to him. The rule of law which was laid down, in the leading case of Ellahi Bux (1866) 5 WR 80 is that on the one hand a conviction founded on the uncorroborated evidence of one or more accomplices alone is valid in law, but on the other hand the evidence of accomplices should not be left to a jury without such directions and observations from the Judge as the circumstances of the case may require:

Examples of the considerations which might with advantage be placed before the jury in determining whether to act or not on the uncorroborated evidence of an approver are given in the judgment of Sir Barnes Peacock which are embodied in the Evidence Act, and it has been held that to let the evidence of approvers go to a jury without giving them proper warning is a misdirection. But I would say emphatically that for a Judge to withdraw consideration of the guilt or innosence of the accused from the jury by telling them that a conviction cannot be based upon uncorroborated testimony of an approver would be no less a misdirection and directly contrary to the statute. The head-note does an injustice to the learned and eminent Judge who decided Ambica''s case AIR 1931 Cal 697 when it imputes to him such a proposition on the face of his treatment of it. He has dealt with it on the merits as a matter of fact and sitting as a Court of fact he chose to make the presumption; and nothing in his judgment countenances the view that a Judge is entitled to insist that a jury should make it. The learned Chief Justice, I am sure, would himself utterly repudiate such a proposition and would never countenance such usurpation by a Judge of the decision of a matter which is by law to be left to the jury. May I refer to two of his decisions dealing with witnesses with reference to whom the Sessions Judge had attempted to give the jury a positive direction to treat the evidence in a particular way. In Emperor Vs. Tazem Ali, the Sessions Judge had directed the jury to presume that the witnesses should be believed while deposing on oath and to accept what the witnesses say as being true until some reason is given to reject their evidence as being tainted. The learned Chief Justice said that the presumption that a particular witness has discharged his duties properly was not a presumption that the jury must make though it was one of the things which a jury ''may'' presume. The conviction was set aside on the ground of misdirection. In Profulla Kumar Sarkar and Others Vs. Emperor, the Sessions Judge had given a direction to the jury to exclude from consideration the evidence of a witness who had been declared hostile by the prosecution. It was held that there was no warrant for a direction to the jury that they were bound in law to place no reliance on his evidence.

The rule of law is that it is for the jury to say. We have now to examine the evidence of the approvers and such circumstances as are relied on by the prosecution for corroboration against individual accused. The learned Judge has found the story told by each of the approvers to agree substantially with that of the other, to agree with the features of the locality and with the evidence of the eyewitnesses. His general impression is that the approvers appear to be deposing truthfully but he thinks that their evidence is not such as to command implicit reliance so as to justify accepting it, in the matter of identification without corroboration, They are ex-convicts. They are men of straw.

They have, he says, made some additions in their evidence to the confessional statements. As regards this last criticizm we have examined the confessions and depositions line by line and are of opinion that the greater detail in which the depositions are taken is not an indication of development and subsequent invention or tutoring. We do not therefore attach much importance to this criticizm.

There is a further criticizm in the case of Mamlat that his statement was somewhat belated as he was absconding till 1st April when he was arrested in the circumstances above stated. Rahman on the other hand was arrested and his confession taken within three days of the dacoity. Of the two we are more impressed by the deposition of Rahman than that of Mamlat who to some extent tries to exculpate himself by saying that when dacoity was proposed to him he was unwilling to go until threatened whereas Rahman does not attempt to make any excuse for himself or to minimise his own guilt.

The Crown coming in appeal ought to show that the view taken by the first Court as to the reliability of the approvers is erroneous. Sir Sultan Ahmad has emphasised the fact that the circumstances of the arrests are such as to render previous concert improbable. This is a fact. Furthermore he has rightly drawn our attention to the fact that the four assessors were prepared to act on the evidence of the approver. The assessors however had not the benefit of receiving a charge and summing up from the Judge. Had this been a jury trial the Judge was bound to caution the jury and to advise them that generally speaking the natural presumption for them to make was that the evidence of the approvers was unreliable though they were not compelled in law to act on the presumption. I am not prepared to say that this is a case in which the presumption should not be drawn and in which corroboration should not be insisted on.

It was next contended that with regard to some at least of the respondents there are corroborative circumstances on which taken with the evidence of the approvers the Court should have acted. Undoubtedly whether some corroboration is insisted on or not, it is not necessary to insist that it should be corroborated by direct evidence. As has been said in Ambica''s case AIR 1931 Cal 697

corroboration need not be sufficient by itself to prove the guilt of the men. It is sufficient if in some circumstance there is independent implication.

This dictum by the way is misquoted by the learned Additional Sessions Judge who substitutes "circumstances" for "circumstance." I have seldom seep a case in which the addition of a single letter made so wide a difference in the meaning of a sentence. I turn now to the cases of individuals, (After discussing the case of each, the judgment concluded).

In the result I would affirm the judgment of acquittal and dismiss the appeal as against respondents Wajid, Majid, Tayab, Sahebjan, Sikandar, Arshad, Mahendra, Kalo, Baneswar and Kurbani; I would allow the appeal set aside the acquittal and record a conviction u/s 395, I.P.C., as against respondents Elahi, Rabbani, Ehsan, Joyed and Jakir, and I would sentence each of these to undergo rigorous imprisonment for five years. Rahim Bux, respondent 5, has not been re-arrested and is reported to be absconding. The appeal has therefore been heard against the remainder of the respondents.

Dhavle, J.

I agree.