Habib Khan and Others vs Emperor

Adami, J.—The petitioners, other than Habib Khan, have been found guilty of an offence punishable u/s 147 and sentenced to six months'' rigorous imprisonment; Habib Khan has been sentenced to six months'' rigorous imprisonment u/s 344, and the other petitioners, though convicted u/s 344, have no separate sentences passed against them under that section; Mohammad Khan has been convicted u/s 325 also and sentenced to rigorous imprisonment for one year.

According to the facts found by the lower Courts, one Maugal Bhuian with his three sons Nemdhari, Bandhu and Deodhari, being dissatisfied with the conditions of labour under Habib Khan and his family at village Kerasin, about three years ago left that village and settled at the village of Nawadih which is 14 miles from Kerasin. Labour is scarce in that locality and it is evident that Habib Khan, the landlord, missed the help of these four labourers. On 1st July 1927 at noon a chaukidar came to the police station at Sherghati and made a report to the effect that four labourers of Habib Khan, who had left Kerasin and come to Nawadih three or four years before, had been caused to be taken back by Habib through his men, and also that Nanku, who tried to prevent the taking of cattle belonging to his master, Gobardhan, was struck on the head and wounded so much that he could not walk. The Writer Head Constable recorded this statement in the police diary as a sanha and sent a constable to bring in Nanku. When Nanku arrived he was found to have been so seriously wounded that he had to be sent to the Hospital; it appears that Nanku was incapable of making a statement which could be recorded. Next day, early in the morning Mt. Patia, the wife of Mangal, came to the police station and laid an information to the effect that Habib and his men had come to the house and carried off her husband and three sons. The information was a much more detailed one than was the statement made by the chaukidar the day before. Thereafter an investigation was begun, the statement of Mt. Patia being treated as a first information.

Mt. Patia in her statement said that her husband and sons had been taken to Kerasin and confined. On the 9th July the Sub-Inspector went to Kerasin but could find no trace of the missing men. On the 16th he visited Kerasin again and found the four Bhuians there and was told by them that they were working voluntarily for Habib Khan. On the 14th August Deodhari Bhuian went to the police station and laid an information that, with effect from the 1st July up till the day before, Bandhu, Nemdhari and his father had been kept in confinement by Habib Khan and his family.

The story of the prosecution was that from Nawadih these four men were taken first to Barwadih and confined there by the petitioner Subhan Khan, and then to Gaya in order that they might have their statements recorded, though, when they got to Gaya, no such statement was taken, and that subsequently they were kept by the petitioners in the top storey of a house in Kerasin which could only be reached by a ladder. They had managed to escape because the ladder had been, by mistake, left at the door and they used it and got away.

The petitioners were put on their trial before the Sub-Divisional Magistrate and the charges framed against them were at first only under Sections 147 and 325. After the witnesses for the prosecution had been examined and cross-examined, the Magistrate was transferred and another Magistrate continued the trial since the accused stated that they did not want a de novo trial. After reading through the evidence already recorded, the Magistrate decided that a charge must be framed u/s 344. It seems that up to that time the Court had decided to proceed on the information given by Patia and to make the information given by Deodhari on the 14th August the subject of separate trial. The succeeding Magistrate, however, decided that all the events were part of one and the same transaction and that the petitioners should be put on their trial under charges covering the period from the 1st July to the 14th August. After framing this charge the witnesses for the prosecution were recalled in order that the accused might have an opportunity of cross-examining them with regard to the newly added charge. After the defence had called two witnesses the Magistrate found on the evidence that the accused were guilty as I have stated, and sentenced them to the periods of imprisonment mentioned above.

On appeal before the Sessions Judge the convictions and sentences passed against the petitioners were upheld.

Sir Ali Imam, on behalf of the petitioners does not contest the findings of fact by the lower Courts and, in fact, he could not do so. He has put forward two points, the first is that the Courts below were wrong in treating the statements by Mt. Patia and Deodhari as the first information since the real first information in the case covering the whole of the transaction was the statement made to the Writer Head Constable by the chaukidar on 1st July 1927. His argument is that the use of the two latter statements as evidence have prejudiced the petitioners in their trial and that such statements were altogether inadmissible.

His second point is that the petitioners should not have been tried in one trial for all the offences charged against them; since Habib was not found to have been present at Nawadih on the 1st he has been prejudiced by being tried with the other petitioners on a charge relating to the events of that day.

To support his argument with regard to the inadmissibility of the statements of Mt. Patia and Deodhari, Sir Ali Imam has referred us to the cases of Keshwar Gope v. Emperor [1920] 1 Pat. L.T. 491, Chandrika Ram v. Emperor AIR 1922 Pat. 535 and Gansa Oraon v. Emperor AIR 1923 Pat. 550. The first two of these cases are hardly helpful in this case. They state clearly that the first statement complaining of an offence to the police must be treated as the first information and that the later statements made during the course of the investigation are inadmissible except for the purposes laid down in Section 162, Criminal P.C. In the first of these cases the informant went to the police and stated that a certain person had been struck and wounded. He went back home and found that the person who had been wounded had died. He went back towards the thana, and on the way met the Writer Head Constable, who had come to investigate the ease, and made a statement to the effect that, the man assaulted had died. It was held that the first statement must be taken as the first information and the second statement which was made after the investigation commenced was inadmissible. In the second of these cases, a statement was made to the police by one person and later another information was given by another person. The first statement was the statement which mentioned the offence that had been committed and the trouble was that the person who made that statement was not even called as a witness before the Court. In neither of those two cases was the trial set aside on the ground that the statements treated as informations were inadmissible; there were other defects in the trial which led to the appeal being allowed. The most important of the three cases mentioned by Sir Ali Imam is the last. There the learned Chief Justice and Mullick, J., have both made pronouncements as to what constitutes a first information, and the gist of the decision is that a statement made to the police after the police have commenced an investigation should not be treated as a first information and should be inadmissible except for the purposes mentioned in Section 162. The learned Chief Justice remarked:

I therefore, consider that the so-called first information taken from Budhni, the wife of the appellant, ought not to have been placed on the record, as it was not admissible in evidence. I observe that the learned Judicial Commissioner does not refer to this statement as evidence in the case and his judgment does not appear to have been in any way influenced by it. I also think that it should be rejected. Had I considered that it in any way influenced the learned Judicial Commissioner in arriving at the conclusion of the appellant''s guilt, I should have considered whether it was necessary to order a new trial. But after considering the other evidence in the case, coupled with the appellant''s own confession, I feel no reasonable doubt, in my mind that the appellant was guilty of murder.

Now in the present case there may be some doubt about the statement made by Mt. Patia. The chaukidar, who made the previous statement, merely said that the men of Habib Khan had taken away the Bhuians and he said that a man had been wounded. The Writer Head Constable evidently was not sure that a cognizable offence had been committed, and, therefore, sent for Nanku to see whether he was so much injured as to render the offence a cognizable one. Nanku came and could make no statement and, therefore, no information could be recorded, and not many hours afterwards Patia came of her own free will, before the Head Constable could make any investigation. The Writer Head Constable thought right to record her statement as a first information. In my view the Writer Head Constable may have been well justified in treating Patia''s statement as the first information in the case.

With regard to Deodhari''s statement made on the 14th August, there is no doubt that when that statement was made the police were investigating the case brought against the accused charging them with causing grievous hurt, rioting and wrongful confinement, and I am satisfied that the first information of Deodhari cannot be taken to be a first information.

A careful perusal of the judgments of the two Courts below shows that neither Court in any way used either of the statements to help it in coming to a decision in the case; they are not referred to as corroborating the prosecution evidence at all; it is merely stated in those judgments that the first informations were given by Patia and Deodhari. The case was decided by the lower Courts on the oral evidence recorded, and, therefore, it is clear that, even if these two first informations be discarded, as'' certainly the statement made by Deodhari must be, the petitioners have in no way been prejudiced. The judgments of both the lower Courts are very careful ones and they have considered the evidence thoroughly, and I am of opinion that even if we discard the statement of Deodhari and Patia''s also, the conviction must, on the findings of fact arrived at by a perusal of the oral evidence recorded, be supported.

The nest question is with regard to the joinder of the charges and the trial of all the six petitioners together. The transaction started on the 1st July, the object of the petitioners throughout was to take away the four men and keep them confined at Kerasin until they agreed to work for Habib Khan and his family. The action began with the unlawful assembly of which all the petitioners except perhaps Habib Khan were members and of which the object was to take away these men and confine them, and the men were taken away and confined and their confinement lasted until about the 13th August.

In my mind there is no doubt that all the facts which are the subject of the charges constitute one and the same transaction being continuous and directed towards the same object and being part of the one design. it was found clearly that Habib Khan was at Kerasin during the confinement and it was with his knowledge that the four men were confined.

I cannot see that the petitioners can succeed on either of the grounds put forward by Sir Ali Imam and would reject the application.

Wort, J.

I agree.