Narpat and Others vs State

V.G. Oak, J.—This appeal by Gokul and three others arises out of a case of an attempted dacoity. The four Appellants have been convicted by the learned Addl. Sessions Judge Shahjahanpur Under Sections 399 and 402 IPC. Each of them has been sentenced to rigorous imprisonment for seven years u/s 399 IPC and to rigorous imprisonment for five years u/s 402 IPC. The two sentences have been ordered to run concurrently.

According to prosecution, some 20 or 25 dacoits went one night to village Deotra in order to loot the house of one Munna Lal. Nathu and other villagers noticed the dacoits going towards Munna Lal''s house. One Mungoo Khan fired his gun in order to scare away the docoits. The villagers surrounded the dacoits. There was an encounter between the villagers and the dacoits. One dacoit fell down as a result of a shot from the gun of Mungoo Khan. Other dacoits escaped. The dacoit, who fell down in the village, was Chhotey Singh. He disclosed the names of his companions. Chhotey Singh died as a result of his gunshot wounds. He had a pistol. Nathoo lodged at the police station a report next morning about the incident during the previous night.

The police arrested a number of persons on suspicion. They were put up for identification in jail. Nine persons were committed to sessions Under Sections 399 and 402 IPC.

All the accused pleaded not guilty. They said that witnesses knew them from before, or that they were shown to witnesses by the police.

The learned Addl. Sessions Judge held that, the charges were proved against four accused, Gokul, Narpat, Maiku and Ram Nath. These four accused were therefore convicted Under Sections 399 and 402 IPC. The remaining five accused were acquitted.

Mr. Bageshwari Sahai, who appeared for the Appellants, did not challenge the incident which took place in village Deotra. The prosecution examined Nathu and other residents of village Deotra as eye witnesses of the incident. The Civil Surgeon''s statement shows that, Chhotey Singh died as a result of gunshot wounds. Dr. Sana proved that, Lala Ram had some injuries, which were likely to be result of lathi blows. There is thus ample evidence to prove that, some persons attempted to commit a dacoity in village Deotra. The question is whether the Appellants were members of that gang.

It is in evidence that Jauhari (PW 21) set fire to a heap of cow dung covered with straw. This fire produced strong light at the scene of the fight between the villagers and the dacoits, Further several villagers carried torches with them. There was thus sufficient, light to enable the villagers to identify dacoits.

The four Appellants were put up for identification in jail in three different batches. Gokul accused was put up for identification on 2-8-58. This identification test was held 1� months after the attempted dacoity. Maiku and Narpat were put up for identification on 27-8-58, This identification test was held a little over two months after the incident. Ram Nath accused was put up for identification on 30-10 58. This identification test was held more than four months after the attempted dacoity.

As already mentioned, Ghhotey Singh was caught on the spot after he received gunshot wounds. He mentioned names of his companions before the villagers. This point was mentioned in the first information report (Ex Ka 10). We find names of Ram Nath and Maiku as Chhotey Singh''s companions mentioned in Ex. Ka 10, The question arises whether the statement of Chhotey Singh deceased to the effect that Ram Nath and Maiku accompanied him during the attempted dacoity is admissible in evidence.

In Nga Po Yin v. Emperer (1907) 5 CrLJ 300 it was held by the Judicial Commr. upper Burma that, confession of an accused person who is dead implicating himself and an accomplice in a crime is admissible u/s 32(3) Evidence Act and is not excluded by illustration (b) to Section 30.

Similarly, in Janu son of AIR 1947 Sindh 122 it was held that, a confession made by one accused implicating himself and the other accused and admitted u/s 32(3) Indian Evidence Act can be used against the other accused. Such confession is to be regarded as a statement made, by an accomplice, which requires corroboration not only as to the factum of the crime but as to the identity of the accused.

On the other hand, in Achhay Lal Singh and Others Vs. Emperor, it was held that where a person makes a confessional statement incriminating other accused but dies before the commencement or completion of the enquiry his statement is inadmissible either u/s 30 or u/s 32(3) of the Evidence Act in a trial of the other accused.

Ordinarily, a confession can be used only against its maker. But there are exceptions to this rule. One such exception is contained in Section 30 Indian Evidence Act. When two persons are tried jointly for the same offence, a confession made by one accused may be taken into consideration as against the other accused.

It is not necessary to suppose that Section 30, Indian Evidence Act contains the only exception to the rule that, a confession can be used only against its maker. Had Chhotey Singh been alive, it would have been possible to tender pardon to him u/s 337 Code of Criminal Procedure, In that case, Chhotey Singh could be examined as a witness for prosecution against other accused. Another exception is to be found in Clause (3) of Section 32 Indian Evidence Act. This clause lays down that, when the statement is likely to expose a person to a criminal prosecution the statement maybe admitted if the maker of the statement is dead Under Clause (3), the statement can clearly be used against its maker. The question still remains whether such a statement can be used against other persons participating in the crime.

In the Principles and Digest of the Law of Evidence by Monir, 4th Edition, the learned author has observed on page 239 that, when a statement is against the interest of the declarant, it becomes admissible in its entirety and as to every fact contained in it. The statement is evidence not only of the specific fact against interest, but of all collateral or incidental facts contained in the statement, which are not foreign to the part actually against interest. Declarations are evidence not only of the precise fact against interest, but of all connected facts, though not against interest, which are necessary to explain or are expressly referred to by the declaration.

So a statement admitted Under Clause (3) of Section 32, Indian Evidence Act need not be confined to that portion, which exposes the maker to a criminal prosecution. The statement may well extend to connected matters. So such a statement may be admitted in evidence in so far as it implicates accomplices and the maker of the statement. I am therefore of the opinion that, Under Clause (3) of Section 32 of the Indian Evidence Act, the statement made by Chhotey Singh deceased can be used in evidence against the other accused named in that statement.

Two witnesses were examined in defence on behalf of Ramji and Jhinguri accused. These have been acquitted. No evidence was produced by the present four Appellants. They were unable to establish that, either the witnesses knew them from before, or that the accused were shown to witnesses between the arrest and the identification parade.

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Their lordship then proceeded to summarise the evidence against each Appellant separately and came to the conclusion that:

It has been proved that, Gokul and Nat pat accused were members of the gang, which raided village Deotra at night. The two Appellants are residents of two villages in police circle Jaitipur. Village Deotra lies in police circle Tilhar. The Appellants bad no lawful excuse for their presence in village Deotra at midnight. The talk among the midnight visitors indicated that, these men wanted to loot Munna Lal''s house. It is obvious that the object of this gang was to commit a dacoity. They carried fire arms. Gokul and Narpat were rightly convicted Under Sections 399 and 402 IPC for preparation to commit a dacoity and for assembling to commit a dacoity.

It is to be noted that, the act committed by the Appellants was merely an attempt to commit dacoity. No property was actually looted by the Appellants and their companions. The sentence awarded in this case are unduly severe. Narpat accused is 22 years old. Gokul accused is 16 years old. So their sentences must be substantially reduced.

The appeal is partly allowed. I uphold the convictions of Narpat and Gokul Under Sections 399 and 408 IPC but reduce their sentences. I sentence Narpat to rigorous imprisonment for three years for such offence. Gokul is sentenced to rigorous imprisonment for one year for each offence. The two sentences passed on Narpat and Gokul shall run concurrently.

The appeal is allowed as regards Ram Nath and Maiku. Ram Nath and Maiku are acquitted of the charges Under Sections 399 and 408 IPC. They shall be released immediately unless they are required in any other case.