Girjanandan Singh vs Emperor

Meredith, J.—These four appeals are from a decision of the; Special Magistrate, Patna, and arise out of a dacoity which took place shortly before midnight on 4th November 1942 in the house of one Sadasiva Mahton of village Yahyachak within police station Asthawan. It so happened that the police ''had received prior information that this dacoity would be committed and so a large force of police led by a Deputy Superintendent of Police hid in ambush near the village. As soon as the noise and flashing of torches indicated that dacoity was being committed, the police party rushed up and attempted to surround the dacoits who were seen to be about 100 in number. One dacoit fired a gun at the police whereupon the police fired a volley in return. The dacoits then attempted to fly in all directions, and the police succeeded in arresting ten of them. Of these ten, four were found to have gun shot wounds. One died at once and the other, three died afterwards in hospital. During the course of the investigation test identifications were held of suspects, and several other persons, who had not been arrested, were identified by various witnesses with the result that eventually eleven persons were placed on trial before the learned Special Magistrate. He acquitted one of them, Aklu Dhanuk, and convicted the remaining ten u/s 395, Penal Code, and sentenced them to undergo seven years'' rigorous imprisonment each.

The cases of all ten are now before us in appeal. Three of them, Peare Dhanuk, Ragho Mahton and Mahabir Mahton, have filed regular appeals. The remaining seven have filed an appeal from jail in which appeal Mahabir Mahton also joined. The cases of Peare Dhanuk, Ragho Mahton and Mahabir Mahton have been argued before us, and in the case of one of the appellants from jail namely, Mathura Singh, Mr. Guneshwar Prasad has argued the case as amieus curise.

The facts of the case have not been challenged by any one and are not in doubt. The only question for decision, therefore, is whether it has been shown in the case of each appellant that he was among the dacoits.

I take first the case of Peare Dhanuk. Mr. Nawal Kishore Prasad has pointed out that the only evidence of his complicity is that of three constables, P. W. 24, Sheonath Singh, p. w. 25, Satya Narain Singh, and p. w. 26, Deokeshwar Singh, who picked out Peare at a test identification, and who also identified him in Court as one of the daeoits. There is also no doubt the fact that the name of one Peare does appear in the first information report which was recorded directly at the spot on the statement of the D.S.P. It appears that a dying declaration was taken then and there from one of the severely injured dacoits, and he mentioned the names of several persons who, he said, had joined in the dacoity with him. In this list he included one Peare Khalifa of Isachak. There is however no evidence at all to show that this is the same man as the appellant, Peare Dhanuk, There is no evidence that the appellant is a Khalifa, and his place of residence has been given by him as not Isachak but Sayeedpur, and no evidence was led to contradict that. The mention therefore of Peare Khalifa of Isachak in the first information, even if the statement is relevant as a dying declaration, should, in my opinion, be ignored.

The question then is: Is the evidence of the three constables sufficient? I see no reason to doubt their bona fides, but the fact remains that the test identification was not held until a very long time after the occurrence. Peare Dhanuk is said to have surrendered in another case only on 5th February 1943, and the test identification therefore was not held until 12th February. The occurrence took place, as I have said, on 4th November. Therefore, more than three months had elapsed before the identification was made. The opportunity which the constables had of making the identification cannot have been a good one. The night was dark. People were scattering here and there. There was a very large number of police constables and of dacoits, and the constables must have been in a state of excitement. Moreover, they unanimously state that the man they identified was wearing a pagri and galmocha. In these circumstances it seems to me that there is room for the possibility of a mistake. It would be difficult after so long a period to remember with certainty the face of a stranger only seen for a brief interval under such conditions. The evidence of the three constables does not, in my judgment, place the complicity of Peare Dhanuk beyond doubt, and I would, therefore, allow his appeal and acquit him.

The next case argued was that of Ragho Mahton. There is a large volume of evidence against this appellant. He was identified both in Court and at the test identification by nine witnesses, some of them police constables and some villagers. In addition, his name, Ragho Mahton of Isachak, appears in the list of names in the first information given by the dying dacoit. I do not propose, however, to examine the sufficiency of this evidence at this stage for a reason which I shall now explain. Ragho Mahton''s main defence was that he was the patwari of Rai Sahib Chunni Lal Rastogi of Bihar Shariff, and that on the-night of occurrence he was actually working with the Rai Sahib until 11 p. M., and so he could not have taken part in the dacoity.

He put in sin affidavit sworn by the Rai Sahib supporting the defence. 16th April 1943 was the date when the accused were directed by the learned Special Magistrate to put in their lisjj.of defence witnesses for summoning. On that date Ragho Mahton put in a list including the name of the Rai Sahib. Summons was issued and was given to him, probably at his own request, for "dusti" service for the 26th. On the 26th the Rai Sahib had not come although in fact the summons had been tendered to him on behalf of the accused on the 24th but refused, possibly because the time was so short. The Magistrate gave an adjournment to the 29th noting that no more time would be allowed. On the 29th the Rai Sahib was again absent, and Ragho Mahton then put in an application for securing his attendance by the issue of a warrant. The Magistrate, however, was not prepared to give further time or issue a warrant, and so refused.

There was an appeal to the learned Special Judge under Ordinance 2 of 1942 who formed the opinion that Ragho Mahton might have been prejudiced by the failure to secure the attendance of this witness, and directed the Special Magistrate to record the evidence of the Rai Sahib in the presence of the accused and certify it to him u/s 428, Criminal P.C. However, before that could be done Ordinance 2 had been repealed by ordinance 19 of 1943, and the Court of the Special Magistrate ceased to exist. After that, under the provisions of ordinance 19, an appeal was made to this Court.

On these facts Mr. Sri Narayan Sahay has put forward two contentions. The first is a technical one. He relies on Section 4 of Ordinance 19 which provides that where the trial of any case pending before a Court constituted under Ordinance 2 has not concluded before the date of the commencement of Ordinance 19, the proceedings of such Court in the case shall be void, and the case shall be deemed to be transferred to the Court of ordinary jurisdiction for trial under the Code of Criminal Procedure. Mr. Sahay''s argument is that the appeal is a part of the trial. An appeal was pending in the present case when Ordinance 19 was promulgated. Therefore the trial had not concluded. Therefore Section 4 is applicable and the whole proceedings of the Magistrate are void under that section.

In my judgment the provisions of Section 4 do not support that contention. Even if it be assumed that the proceedings before the appellate Court are a part of the trial, what Section 4 provides is that if the case is pending in any Court, the proceedings of such Court shall be void; that is to say, it renders void only the proceedings of the Court in which the case is actually pending at the time of ordinance 19. Now even if, as I have said, it be assumed that the trial is pending because an appeal has been filed, still it is certainly not pending in the Court of first instance. It is pending in the ''Court of the Special Judge who is hearing the appeal, and not pending in the Court of the Special Magistrate who has already delivered his judgment, and who is functus officio. Therefore in a case like the present, where an appeal was pending under the provisions of Section 4, the proceedings of the Magistrate could not possibly be rendered'' void. All the section could do, if applicable upon its wording, would be to render void the ''proceedings of the appellate Court.

In fact, however, in my opinion, Section 4 is not applicable at all because it seems to me clear that the intention in that section was to refer only to the pendency of original proceedings and not to the pendency of appellate proceedings. When the entire section is read, that, I think, becomes apparent, because otherwise the expression "such Court" would not have been used referring as it does to the Court in which the case is actually pending, and then proceeding to make a provision not for the re-hearing of any appeal but for the retrial of the case. The fact that the word "trial" is used in no way indicates that reference is made to the entire course of the proceedings including the appeal, if any, because the word "trial" is a word which is used frequently with different connotations according to the context, and the context here, in my judgment, shows its use to refer to the proceedings of the Court of the first instance.

Mr. Sahay relied in support of his argument on the decision of the Federal Court in Criminal Appeal No. 35 of 1943, AIR 1944 1 (Federal Court) and connected cases. That decision, however, does not appear to be to support his contention, rather the contrary. In the first place the learned Chief Justice of India observes that the meaning of the word "trial" must largely depend on the context and the scheme of the enactment in which it occurs. He adds that it is obvious that in the context in which it occurs in Ordinance 19 of 1943 it must comprise all stages of the proceeding, including the imposition of the sentence. The contradistinction made by the Ordinance is between cases in which a sentence had been passed by the special Courts and cases in which no such sentence had been passed, the former falling u/s 3(1) and the latter u/s 4. The opinion of the Federal Court, therefore, seems to have been that it was only when no sentence had been passed that the case fell u/s 4. It is quite true, as pointed out by Mr. Sahay, hat the Federal Court went on to hold that a case u/s 8 of. Ordinance 2 of 1942, in which a review was pending, would fall u/s 4 even though the original sentence might have been passed.

But that was for a special reason. These cases were said to stand on a special footing because in a sense the sentence was not complete till it had been followed by the pronouncement of the Review Judge. The reference to the Review Judge was either compulsory or upon the initiative of the Court itself and not upon the initiative of the convicted person. Therefore, where the review was pending, the case was one where the sentence though passed was not a complete and effective sentence, and this being so, in the special case their Lordships took the view that the original trial was in a sense still pending.

Obviously all this affords no support at all for the contention that the original trial before the Magistrate is still pending simply because an appeal has been filed. The answer is, as I have said, that if it is pending in any sense it is not pending before the Magistrate, and Section 4, even if applicable, could not affect the Magistrate''s proceedings.

Mr. Sahay''s first contention must, therefore, be'' rejected. But he goes on to argue secondly that his client was prejudiced by the failure of the Court to examine this important witness, and consequently there should either be re-trial or he should be accorded an opportunity of examining the Rai Sahib. In my opinion this contention is just. When the Magistrate issued a summons to the Rai Sahib he undertook the responsibility of securing his attendance, and if the accused insisted upon the attendance being secured the Magistrate was legally bound to comply. The evidence in question may well be material or even vital to the defence, and it is, therefore, I consider, necessary in the interests of justice that the appellant should be given an opportunity now to examine this witness. I would accordingly, in the case of Ragho Mahton, direct u/s 428 that the evidence of Rai Sahib Chunni Lal Rastogi should be taken by the Sessions Judge of Patna or by an Additional Sessions Judge, if directed by him, and certified to this Court. The evidence should be taken in the presence of both parties, and the prosecution should be given an opportunity to cross-examine the witness. The evidence should be forwarded to this Court as soon as possible after which Ragho Mahton''s appeal will be re-heard. We do not consider it necessary in the circumstances to order a complete re-trial before the Court of Session so far as this accused is concerned.

The next case argued was that of Mathura Singh, but there is little that can be said for him. He was identified by five witnesses, p. ws. 3, 9, 15, 21 and 27, both at the test identification and at the trial. His name is also clearly mentioned in the first information recorded directly after the occurrence as one of those stated by the dying dacoit to be amongst his companions. His name is given as Mathura Singh of Makhanpur which is the appellant''s village. In his case the test identification was not so belated, having been held on 5th January. Mathura Singh''s defence was that on the day of occurrence he was in a hospital at Jamshedpur and came home about a month after when he was arrested. But he did not do anything to support that defence. He did not express a wish to call in defence witnesses on the date when the case was adjourned for defence, but on the next day he asked for some certificate regarding some injury examined at the hospital to be called for. The Magistrate records that he was prepared to call for the evidence but Mathura Singh did not give him any details upon which he could do so. He admitted that there were several hospitals in Jamshedpur and he could not say in which of them he got his injuries examined. Nor did he give the names of any of the witnesses he wished to summon. It appears, therefore, that there was nothing in this defence.

It seems to me upon the evidence that there can be no possible doubt about the guilt of Mathura Singh, and I would accordingly dismiss his appeal and confirm the conviction and sentence which, having regard to the serious character of the dacoity, does not appear to be too severe.

The last case argued was that of Mahabir Mahton, and the argument now put forward is an unusual one. It was contended when the appeal was admitted that Mahabir Mahton had been of unsound mind since the death of his wife four or five years ago, and had been wandering about as a lunatic. It was suggested that he was not really one of the dacoits but merely happened to be wandering about in the village on the night in question, and was arrested by the police through mistake as one of the dacoits. The Court called for a report from the Superintendent of the Buxar Jail where he is confined, and the medical officer has reported that he kept him under observation from 20th August 1943 to 29th August, and found him of unsound mind. It may be taken therefore that from the medical point of view this appellant is now of unsound mind. It must be noted that it does not follow from that that he could plead insanity in the legal sense which necessitates the incapacity on account of unsoundness of mind to distinguish between right and wrong.

Apart from that, it by no means follows that because the man is of unsound mind now he was also insane at the time of the dacoity nearly a year previously. No such defence was actually put forward. That is sought to be explained by the fact that he had no one to defend him. His sole relative only learnt after his conviction that he had been run in for dacoity. Even if that be so, it seems impossible to believe that, had he really been a lunatic at the time of the occurrence and at the trial, no one could have noticed it, neither the police nor the Magistrate, and the question did not come up at all. There is nothing in the examination of Mahabir Mahton before the Magistrate to suggest that he was of unsound mind or did not understand the proceedings, and there is not a word in the judgment upon the subject. I find it impossible to believe that the police and the Magistrate could have failed to notice it had he really been a wandering lunatic as he alleges.

Moreover, whatever his state of mind may have been, I think he could only have been in the village at that time of night because he had joined the dacoits; otherwise he had no good reason at all for being there. He did not live there. It is said, though there is no evidence, that a relative of his lived within a few miles of Yahyachak. But even if that be so, he still could have no reason for going to the village at night, where he had no connexion at all unless it was with the dacoits. Upon a consideration of all the circumstances I do not find anything in his case which would justify our interfering with his conviction. I would therefore dismiss his appeal also.

The cases of none of the other appellants have been argued before us. Nevertheless we have examined them. Five of them, Girjanandan Singh, Chechan Dusadh, Haro Jaswar, Jago Jaswar and Hari Dusadh, were like Mahabir Mahton, caught red-handed, and arrested by the police at the'' spot. In addition to this, each one of them was identified by a large number of witnesses, and four of them, Girjanandan Singh, Chechan Dusadh, Haro Jaswar and Jago Jaswar were found to have injuries on their persons. The only one who had not received injuries, Hari Dusadh, was identified by no less than ten witnesses. Each of the others was identified by at least four witnesses. In my opinion there is nothing to be said for any of them with regard to their guilt.

The remaining appellant, Sulaiman Mian, was not arrested at the spot, but he has been identified both at the test identification and in Court by a large number of witnesses, namely, P. Ws. 4, 7, 8, 9, 19, 30 and 31. There can, in my opinion, be no doubt about his guilt. In the result therefore I would allow the appeal of Peare Dhanuk, the appellant in criminal Appeal No. 518 of 1943, and acquit him, call for the further evidence I have indicated in the case of Ragho Mahton, and dismiss the appeals of the other eight appellants. After the evidence has been received, Appeal No. 544, that of Ragho Mahton, will be placed before us for final disposal.

Chatterji J.

I agree.