Jaila and another vs State

Teja Singh, C.J.—A dacoity was committed at the house of Harchand Singh and Sher Singh of village Chupka in the halqa of Malerkotla Police Station (Barnala District), on the night of 20-4-2006 (5/8/ 1949). The matter was reported to the Police by Harchand Singh within half an hour of the occurrence. The culprits remained untraced for sometime but four persons were arrested later on, viz., Jaila alias Jarnail Singh, Amar Singh, Achhal Singh and Jagan Singh. The last-named person was acquitted by the trial Magistrate and the remaining three were convicted and sentenced to various terms of imprisonment and fine. On appeal the Sessions Judge set aside the conviction and sentence of Achhal Singh. Jaila and Amar Singh whose appeal was dismissed by the Sessions Judge have now preferred a revision petition to this Court.

The prosecution story was that the culprits were five in number and that they went to the house of Harchand Singh and Sher Singh between 2 and 9 in the evening; one was carrying a gandasi, the other a kirpan, the third a dang and the remaining two were armed with rifles. One of Harchand Singh''s neighbour when he saw the dacoits proceeding to his house shouted ''to him that his guests were arriving and he had better take care of his dog. On this Harchand Singh came out and was attacked by one of the dacoits with a gandasi. The blow, however, missed him and he made good his escape. Sher Singh who was in the house when the dacoits arrived was also able to escape. One of the dacoits went up the roof of the house, evidently in order to keep a watch and three of them went inside and robbed the women-folk of jewellery. They also took away some clothes.

According to the evidence Jaila and Amar Singh were arrested on 15-9-2006, but who arrested them, from where and in what circumstances, is not clear from the record. It is curious that even the police officer who effected the arrest was not put in the witness-box. As I have pointed out again and again in. cases of this kind when the name of the offender is not mentioned in the first information report and the prosecution contends that he was not known to the persons who witnessed the occurrence it is necessary for the prosecution to make out what led to the identity and the arrest of the offender. If a person is arrested on mere suspicion and later on he turns out to be the real culprit it is also necessary for the prosecution to prove the circumstances which created the suspicion. Unfortunately no light whatsoever was thrown by the witnesses examined by the prosecution on this aspect of the case and in my opinion this, by itself, is a very serious defect in the case and creates a doubt of which the petitioners are entitled to benefit.

The evidence produced by the prosecution to connect the petitioners with the crime is of two kinds. First, we have the statements of the persons who claimed to have seen them either before they committed the dacoity, i.e., when they were proceeding to the house of Harchand Singh and Sher Singh or at the time of the occurrence. As regards the witnesses who saw them before the dacoity I am satisfied that if they saw the dacoits at all, they could only have had just a glimpse of them and taking into consideration the fact that it was night time even though the night was moon-lit it could not have been possible for them to form a full impression of their features so that they could identify them after a lapse of several months.

It may here be mentioned that the parades for the identification of the petitioners and their companions were held on 29-9-2006, i.e., five months after the occurrence. As regards the inmates of the house whom the dacoits are alleged to have robbed of their ornaments etc., I would have attached considerable importance to their statements but for the fact that I am not satisfied that there was light in the house with the help of which they could have had a full view of the culprits. The witnesses stated that the culprits made a light by burning the yarn that was lying in the house but A.S.I., Ram Chand who proceeded to the spot immediately after the report says that he did not notice any ashes which if the light was made in the manner deposed to by the eye-witnesses must have been left behind. It is also significant that no mention of the burning Of the yarn or the making of the light is made in the ruqqasent by A.S.I., Ram Chand to the Police Station on the basis of which the case was registered.

The second kind of evidence relates to the alleged recovery of a Patri from the possession of Jaila and a watch from that of Amar Singh. Both these articles were identified by Harchand Singh and other witnesses as belonging to them. The petitioners'' counsel made an effort to show that the recoveries were doubtful and the Courts below were wrong in holding that they were in the possession of the petitioners. I do not consider it necessary to deal with this point, because in my opinion the prosecution has not been able to prove by legal evidence that the Patri and the watch were part of the property taken away by the dacoits from Harchand Singh''s house. Reliance was placed by the learned Counsel for the State upon two lists, one is exhibited as P/J and other does not bear any exhibit mark which according to the evidence of A.S.I., Ram Chand were prepared, one at the instance of Harchand Singh and the other at that of Sher Singh. On going through the evidence I am satisfied that both these lists were prepared after A.S.I., Ram Chand had sent the ruqqa to the police station for the registration of the case and during the course of investigation and in the view that I take I hold that they were hit by the provisions of Section 162, Criminal Procedure Code, and could not be admitted in evidence.

It appears from the orders of the trial Magistrate and the learned Sessions Judge that an objection regarding the admissibility of the lists was taken before them and while the trial Magistrate upheld the objection the learned Sessions Judge relying upon Brij Lal alias Birja and Others Vs. Emperor., , held that the lists did not amount to statements made to the police and accordingly Section 162, Criminal Procedure Code did not apply to them. Now a perusal of sub-section (1) of Section 162, Criminal Procedure Code leaves no doubt that it definitely forbids the use of statements made by any person to a police officer in the course of an investigation or the record thereof whether in a Police Diary or otherwise, for any purpose, save as mentioned in the provisos to the sub-section and there is ample authority in support of the proposition that whether a list of stolen property is supplied in writing by a person to a police officer or it is prepared according to the oral statement made by him, provided it is supplied or prepared in the course of investigation, it amounts to a statement.

It is sufficient to refer to a Bench decision of the Lahore High Court AIR 1932 488 (Lahore) In Sk. Khabiruddin and Others Vs. Emperor, , a Bench of the Calcutta High Court held that Section 162 embraces all kinds of statements made to a police officer in the course of investigation and on this account refused to admit evidence to prove that some of the witnesses identified stolen property before a police officer during investigation. They observed:

Any identification of stolen property in the presence of a police officer during investigation is a statement made to a police officer during investigation and is, therefore, within the scope of Section 162. Whether a list is supplied to a police officer or is prepared by him at the instance of a witness in the course of investigation is a question depending upon evidence examined in each case, but if the evidence shows that it was so supplied or prepared it has to be treated as a statement coming within the ambit of Section 162 and must be ruled out. If, on the other hand, the report is supplied or is prepared before the investigation starts and it can be regarded as a part and parcel of the first information report Section 162 cannot apply to it and it can be proved.

In the view that I take I express my respectful dissent with the observation on appearing in the judgment of the Allahabad High Court that Section 162 has no reference to a list of stolen property. It may also be mentioned that this judgment was recently dissented from by a learned single Judge of the Punjab High Court in ''Amar Singh v. Crown'', AIR 1949 EP 315. In the present case, as I have already observed, the evidence establishes that both the lists were prepared in the course of investigation and they could not be made use of with a view to showing that according to what the witnesses stated before the police Patri and the watch were among the stolen property.

The result is that the petition is allowed, the convictions and the sentences of the petitioners are set aside and it is ordered that unless they are wanted in connection with any other case, they should be released forthwith.