Mangunath vs State of M.P.

Chandra Pal Singh, J.—The judgment in this appeal shall also govern the disposal of Criminal Appeal No. 40 of 1978 (Bhanpmath v. The State) because both the appeals arise out of the same judgment of the Second Additional Sessions Judge, Mandsaur in Sessions Trial No. 58 of 1977. Both the appellants were charged with and tried for offence punishable u/s 392 read with section 397 Indian Penal Code successfully for which each of them has been sentenced to rigorous imprisonment for 7 years. They appeal.

The facts of the case in short are that on 25-6-1977 at about 5 p. m. Rampal (PW 1), Lilabai (PW 2), her mother Dhapubai (PW 5) and her aunt Basantibai (PW 4) after their day''s work in the field near their village Revas Devda were returning home when suddenly the appellants, who were armed with sticks emerging from the bushes after grievously injuring Basantibai (PW 4) and Dhapubai PW 5) relieving Basantibai (PW 4) of her pair of silver Kadis and Dhapubai (PW 5) of her Bor, her pair of silver Kadis and a silver Cheep, ran away. Seeing the two women Basantibai (PW 4) and Dhapubai (PW 5) being severely injured and apprehending danger to themselves, Rampal (PW 1) and Lilabai (PW 2) abandoning severely injured and unconscious women behind ran away to their village, Rampal (PW I) related the event to villagers and thereafter hurried to Mandsaur at a distance of 20 k.m. from the place of the incident and lodged the first information report (Ex. P-I) at 12-30 p. m. the day following. Dr. A. W. Nargunde (PW 12) on examining Dhapubai (PW 5) found that she had two lacerated wounds, two abrasions and one contusion Lacerated wounds were situated on the right parietal region and left frontal region, abrasions on the vertex of frontal region and on the back of wrist joint and contusion on the right scapular region. Basantibai (PW 4) had two lacerated wounds on the right upper eye-lid and between third, fourth and fifth fingers, an abrasion on the left leg, a contusion oh the right scapular region and swelling on the left wrist joint. He also took the X-ray photographs of Dhapubai''s and Basantibai''s radius and ulna bones and he found that in both the cases there were fractures. In his opinion, the duration of the injuries was within 24 hours of his examining these witnesses on 26-6-1977 at 9.30 a. m. The appellants were arrested and pursuant to their information, ornaments (a pair of silver Kadis, a Bor and a Cheep) were discovered by Kanhaiyalal (PW 10). Babu-singh Tomar (PW 8) conducted to test identification parades one regarding the identification of the miscreants in the district jail, Mandsaur and the other regarding the robbed articles at Datta Mandir, Mandsaur.

On these facts when charged with and tried for offences punishable u/s 392; 397 Indian Penal Code, the appellants denying their guilt as well as every other allegation against them, explained that the concerned witnesses were deposing against them as a result of tutoring by the Police. They examined Harnamsingh (DW 1) in their defence proving that of the appellant Mangunath on 24-6-1977 that is to say a day before the incident in question had lodged a report about his wife one Chandibai having run away with one Nathia along with his minor daughter Nirabai and his being beaten by the said Nathia, when he went to claim back his daughter, The learned trial Judge relying upon the eye-witness-account furnished mainly by Rampal (PW 1), Basantibai (PW 4) and Dhapubai (PW 5) and the corroborative medical evidence coupled with the discovery of some of the robbed articles pursuant to the information furnished in that regard by the appellants, finding each of them guilty of the offence charged, directed them to be punished as already specified.

As regards the offence punishable u/s 392/397 Indian Penal Code having been committed on 25-6-1977 between 5 and 6 p. m. near the field of village Revas-Devda there is no doubt. The evidence of particularly Rampal (PW 1), Basantibai (PW 4) and Dhapubai (PW 5), if considered together conclusively establishes that the two miscreants, each aimed with a lathi had suddenly emerged from some bushes, while these witnesses were proceeding back home after finishing day''s work. Each of the miscreants then started dealing blows severely injuring Basantibai and Dhapubai. Basantibai as a result of injuries sustained became unconscious to discover later on that her pair of silver Kadis had been robbed. Dhapubai (PW 5) also as a result of severe injuries became unconscious and according to her, her ornaments (a) Bor, a pair of silver Kadis and Cheep) were robbed. There is consistency behind the conduct of Rampal (PW 1) in having later on lodged the first information report (Ex. P-1) at a distance of 20 k. m. at Mandsaur Police Station, the day following.

There is corroboration so far as the evidence regarding the injuries sustained by the two Basantibai and Dhapubai is concerned in the evidence of Dr. Nargunde (PW 12) whose evidence has already been referred to in detail while narrating facts. It is further clear from the evidence of particularly Basantibai and Dhapubai that of the two miscreants, one had chosen Basantibai as victim, while the other, the other female. Considering that both Basantibai (PW 4) and Dhapubai (PW 5) has sustained grievous injuries, it could be safely concluded that the offence defined u/s 397 Indian Penal Code had been committed by each of the miscreants because each of them at the time of committing the robbery of the ornaments worn by these two female witnesses, had caused grievous hurt to his respective victim. In other words, the offence punishable u/s 392/397 Indian Penal Code had been committed.

The question for decision is whether those miscreants were the appellants. Their conviction is based, as already pointed out, upon the eye-witness account given by Rampal (PW 1), Lilabai (PW 2), Basantibai (PW 3) and Dhapubai (PW 5) and upon the discovery of some of the robbed ornaments discovered pursuant to the information furnished by the appellants.

As regards the eye-witness-account furnished by the concerned witnesses, it has to be read along with the evidence of Babusingh Tomar (PW 8), who had conducted the identification parade on 23-7-1977, i.e. about 28 days after the incident wherein some of these witnesses had indentified the appellants.

To take independently, the evidence of Rampal (PW I) is that till about sun-set that day after working in the field, the two women and the girl (alluding to witnesses Basantibai. Dhapubai and Lilabai) and he started returning home. Dhapubai (PW 5) and Basantibai (PW 4) were ahead followed by Lilabai (PW 2) and he being the last of the lot. The two women had pulled down their Dhotis to cover their faces. Two Kalbelias (snake charmers or those who catch snakes) came out of the bushes. Both of them started beating Basantibai (PW 4) and Dhapubai (PW 5) with sticks. One of the Kalbelias beat Basantibai and then Dhapubai. As soon as Kalbelias dealt a blow on each of the women turn by turn he, being sacared. ran away. He told about the beating given by Kalbelias to Basantibai (PW 4) and Dhapubai (PW 5) in the village Later on he lodged the report (Ex. P-1) and identified the appellants to be those two Kalbelias in the identification parade before the Sarpanch (alluding to Babusingh Tomar PW 8). It is significant that according to him, he had not actually seen any of the miscreants robbing either of the two women. There is reference in the first information report lodged by him regarding the Kadis put on by the two women being robbed, which in the circumstances appears to be as a result of information later on collected from these females before the lodging of the first information report. Significantly the report (Ex. P. 1) does not make any reference about Leelabai (P. W. 2) accompanying either the two women of him while returning from the field to the village. It, therefore, becomes doubtful that Lilabai (P. W. 2) was actually an eye-witness, particularly when we take into account that the first information report had not followed immediately after the event but had been lodged the day following.

Lilabai (P, W. 2) moreover, is a child witness. Children generally speaking have good memories but no conscience and have a tendency to relate facts which they have been tutored to relate without realising serious consequences their narrative may entail. In any event it is clear from the last answer given by Lilabai (P. W. 2) that it was not in her presence that any ornaments had been lobbed (from the two women), because she had already run away from the scene

The evidence of Basantibai (P. W. 4) is reliable so far as her being beaten and her pair of silver Kadis being robbed are concerned. But she has not been able to identify any of the miscreants. This leaves with us the evidence of Dhapubai (P. W. 5) and of course that of Rampal (P. W. 1). According to Dhapubai (P. W. 5) she had been able to identify only one of the miscreants She identified the one (who was short statured), who is the appellant Bhangunath. There is no reason to disbelieve her testimony because in depriving her of ornaments or particularly a pair of Kadis, considerable time should have been spent enabling her to identify the person robbing her. The purpose of identification parade being arranged during the course of investigation is mainly to lend assurance to the subsequent identification before the Court which alone furnishes substantive evidence. It, therefore, follows that in some cases even if there be no test identification parade arranged, a conviction could follow on the identification of the accused in the Court. As regards the identification by the witness Rampal (P. W. 1) on his own admission as soon as the miscreants had started beating the two women, he being scared or out of fear, had run away. If that was so, he could not have vividly witnessed the event.

For the purpose of identification factors like age, height, colour, length of hair complexion, voice, board, dress put on, gait, address, other distinctive features and the like of a miscreant furnish helpful guide. In this case the only description which Rampal had given in the first information report was that one of the miscreants was with long moustaches with a white bush-shirt on, of average height and the other with black shirt of short stature. Both of them had Dhoti on. It is to be noted that no description about their complexion or any peculiarity except their size was given. Most significant of ail-neither of them had been described to be a Kalbelia which during the trial became one of the important features for identifying the miscreants. Not only from the contents of the first information report but also from his evidence, it appears that Rampal being scared, had run away and he thus having had no opportunity left for closer observation, the acceptance of his evidence regarding the identification of the appellants is not free from danger.

Moreover, Babusingh Tomar (P. W, 8) does not appear to have taken most of the precautions to be taken in conducting a test identification parade. It is the duty of the person conducting the parade, be he even layman like Mr Tomar to make a note of every objection raised by the accused. He should guard against calling witnesses all at once; he should call them one by one making sure that a witness after identifying departs from the place so as to be not left within the view of the next witness. The bearing and general appearance of the persons to be mixed should not be glaringly dissimilar. The atmosphere for conducting an identification parade should be as far as possible similar as was when alleged offence had taken place. These requirements are not exhaustive. In this case, there is no record that enough number of persons, who were short statured were mixed or that persons, who were mixed had long moustaches It is also not clear whether a particular witness after indentifying had been kept there or Mr Tomar had taken precaution that the next witness remained uninfluenced by the identification of the earlier witness. An identification diminishes considerably in value, if a witness identifies one and wrongly identifies someone else present in the identification parade.

Dhapubai (P. W, 5) is such a witness, who had identified only the appellant Bhangunath and not the other appellant Mangunath. Instead, she had identified someone else in place of Mangunath.

Thus, it is mainly on the evidence of Dhapubai (P. W. 5) tendered at the trial about her identifying the appellant Bhangunath that I concur with the finding of the trial Judge that Bhangunath was one of the robbers, who jointly with someone had robbed atleast Basantibai (P W. 4) of her pair of silver Kadis which finds a reference also in the first information report, during the course of which the appellant Bhangunath had caused her (Dhapubai) grievous hurt.

As to the discovery of the robbed ornaments pursuant to the information furnished by the two appellants, the evidence tendered is vague. Generally speaking it is not at all likely that two persons would start stating a fact at once or simultaneously. In such a situation the statement of one would not implicate the other. The provisions contained in section 27 of the Evidence Act do not contemplate such a thing as a joint discovery, namely, the discovery made in consequence of a joint information. It is, however, otherwise that two persons accused of an offence while in the custody of the Police give the aame information one after the other. In such a case, the information given first in point of time would be attributable to that accused person alone provided that information, no matter if it amounts to a confession, relates distinctly to fact the which comes to be subsequently discovered.

When we look to the terms of Ex. P. 2 and P. 3 each of the appellants is alleged to have given information regarding their joint enterprise of robbing (ornaments) and their volunteering to get them discovered. The evidence of Narukhan (P. W. 6) who is one of the attesting witnesses contrary to it, is that the appellant Bhangunath and Mangunath had given information contained in the documents (Ex P. 2 and 2, 3) respectively regarding their having given ornaments at a public place (Kalali). The two appellants then took him and other witnesses to the public place situated at the out-post of Rajpuria where the publican (Kalal) produced ornaments (Arts 1, 2 and 3) which were seized evidencing which Ex. P. 4 was prepared. Kanhaiyalal (P.W. 10) corroborates the fact of his having produced those articles evidencing which Memorandum Ex. P. 4 was prepared. The evidence of Badrilal Soni (P. W. 11), the Investigating Officer is also to the same effect (as in the evidence of Narukhan P. W. 6).

Besides suffering from the defect of joint information given by the two accused, the type of discovery of ornaments from Kanhaiyalal (P. W. 10) has been held to be no discovery u/s 27 of the Evidence Act. It has been construed to be merely related to the whereabouts of a person like Kanhaiyalal (P. W. 10). In the case of Jaffer Husain Dastagir v. State of Maharashtra (1971 SCJ 433), where Jaffer Husain along with two others was prosecuted for stealing a packet of containing diamonds he while in police custody gave information to the Police that he would point out one Ramsingh in the third class waiting-hall of the Bombay Central Station to whom he had given a packet containing diamonds, it was held that "The essential ingredients of the section (section 27) is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused Thirdly, the discovery of the fact must relate to the commission of some offence............Therefore, the information of Jaffer Husain Dastagir that Ramsingh had the custody of the diamonds would not be something unknown to the police so as to constitute a fact deposed to as discovered in consequence of the information received from the accused. This discovery, if any, merely related to the whereabouts of Ramsingh There was no discovery of any fact deposed to by the appellant within the meaning of section 27," The ornaments seized from Kanhaiyalal (P. W. 10), therefore in themselves do not connect either of the appellants with the offence charged.

So also in the case of Kottava v. Emperor (AIR 1947 PC 67) their Lordships of the Privy Council laid down that in their view it Is fallacious to treat the "fact discovered, within the section equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact......Information supplied by a person in custody that ''I will produce a knife concealed in the roof of my house'' does not lead to the discovery of a knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ''with which I stabbed A'' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." Thus, it is clear to me that the only significance of the evidence of Kanhaiyalal (P. W. 10) is that he had produced ornaments (Arts 1, 2 and 3) which were later on at the identification parade (Ex. P. 7) were identified to be belonging to Dhapubai (P. W. 5) and she again before the Court identified those articles to be hers. Neither of the appellants has claimed them. But merely because of these facts it does not automatically stand proved that Dhapubai (P. W. 5) had in fact been robbed of all these ornaments (because there is no reference to this fact in the first information report--Ex. P. 1 which had been lodged in all probability after Dhapubai had also been consulted). It is entirely a different matter that in Dhapubai''s presence Basantibai had been robbed of a pair of silver Kadis which remain unaccounted for.

In conclusion, the fact clearly remaining proved is that the appellant Bhangunath was one of the robbers, who had either himself or acting in concert with his other companion, had robbed Basantibai of her pair of silver Kadis, during the course of which he and his companion had caused grievous hurt to Basantibai (P. W. 4) and Dhapubai (P. W. 5). The evidence against the co-appellant Mangunath being doubtful, he is acquitted of the charge,

In the result, the conviction and sentence of the appellant Bhanganath are upheld. His appeal is dismissed. The conviction and sentence of the appellant Mangunath are set aside. His appeal is allowed. Ornaments (Arts 1, 2 and 3) shall revert to Dhapubai (P. W. 5). Other articles be destroyed.