PUNIA MALLAH Vs. EMPEROR

JUDGEMENT

(1.) These two appeals arise out of the same judgment in which, out of 14 persons on trial, the 5 appellants were convicted under Section 395, Indian Penal Code. In Cri. App. No. 314 there is a single appellant by name Punia Mallah and in Cri. App. No. 346 there are four appellants, namely, Charitar, Bansi, Deyali and Harnandan. The occurrence took place in a thakurbari in village Mehdiganj during the night between 12 and 13 August 1943, at 1 A.M. The village is under the jurisdiction of the police-station Khajekalan which is about two miles from the place of occurrence. During that night there were only two people residing in the thakurbari, namely, Mahanth Deodhari Dass, an old man aged 70, sleeping in a room, and another Ram Lal Gareri, a man aged 50, who was sleeping on the verandah. Now, the dacoits entered inside the Math by sealing over the walls. They were about 18 or 20 in number and were armed with various weapons, bhalas, swords, pistol, daggers and lathis. They woke up Mahanth Deodhari Dass and asked him to show his wealth. He said he had no wealth. Then they threatened him with death. On this he made over the keys and with the keys they opened different rooms. First of all they opened the room of the Thakur, took away the silver mukut of the Thakur, dug certain places in the thakurghar and opened other rooms and took away various things including utensils, clothes, cash, ornaments, cigarette case, dari, blankets and some papers. Then they took the Mahanth into a room, assaulted him with a karauli and left him with a bleeding injury on the chest inside the room and chained the room from outside. During the dacoity Ram Lal Gareri was also pushed inside a room and was being watched till the dacoity was finished. He was also confined in a room by chaining the room from outside. This place is an isolated one and was then partly cut off by the flood water, and the place could be reached only by the help of a boat. Therefore, these two inmates remained confined in the place and only in the early morning Ram Lal Gareri from inside the room heard the sound of one Baburam. He called Baburam, who came-and unchained the door and Eamlal Gareri came out. Going out for the search of the Mahanth, he found the Mahanth confined in a room. He was then released by Ram Lal. The Mahanth was in a very bad condition so he was carried on a khatoli to the police-station where the first information was lodged at about 9-30 A.M.

(2.) In the first information report no accused was named, nor was there any subsequent identification of the accused persons at the test identification parade. A list of some articles was given at the time of the first information report and Mahanth Deodhari Dass-further said that his grandson Kishori Pandey had deposited certain articles with him in. the Math and he could give a list of those articles later. The police arrived at the spot and carried on investigation for some time, and getting absolutely no clue, submitted a. final report on 2nd October 1943. Meanwhile certain other dacoities in the neighbourhood were committed and those cases were being investigated. In the course of that investigation on 23rd October 1943, the houses of accused Deyali and P.W. 11, Mt. Tetri, were searched. Prom the person of Deyali a cigarette case with trade mark "Bridgestone" manufactured in Japan was found. On 24 October 1943, the houses of Bansi and Charitar were searched. From the house of Bansi a lota, Ex. IV, was recovered which was later identified to be one of the stolen articles, and from the house of Charitar a tasli which is material (Ex. I) was found which was similarly later identified to be one of the stolen articles. The house of Punia Mallah was searched on 7 Nov. 1943, and from there two articles, namely, a thali and a batlohi, Exs. II and III respectively, were recovered and they were subsequently identified to be-stolen articles claimed by the complainant. On 27 and 28th October 1943, the two appellants Deyali and Harnandan confessed and their confessional statements were recorded by a Magistrate Mr. T.N. Gupta. In the confession of Deyali all the appellants including himself and excepting Charitar, and certain other accused persons, since acquitted by the learned Assistant Sessions Judge were named. But Charitar was named by Harnandan in his confession. Recording of Deyali's confession was started on 27 October 1943, and could not be finished that day and so it was continued on the next day. On 5th December 1943, the articles seized from the houses of the appellants were identified at the test identification parade held by Mr. Rameshwar Prasad Golwar Honorary Magistrate, 2nd class. On 15 February 1944, 14 people, including the present 5 appellants, were charge-sheeted and put on trial in the Court of the Assistant Sessions Judge, Patna.

(3.) The learned Judge in the Court below acquitted 9 people and convicted these five on the evidence of the retracted confessions of the appellants Deyali and Harnandan and on recovery of articles as aforesaid from the houses or from the person of the accused persons. Now, so far as Harnandan is concerned, no article was recovered from his house. His conviction stands on his confession alone and on the confession of Deyali. The principal evidence, according to the learned trial Court, is afforded by the retracted confessions of the two persons. Theeye witnesses, Deodhari Dass, P.W. 5, and Eamlal Gareri, P.W. 6, did not identify any of the accused persons at the test identification parade. The Counsel forthe defence in challenging the correctness of the judgment of the trial Court has laid stress upon two points, namely, that the confessions cannot be relied upon as having not been recorded in accordance with the imperative provisions of Section 164, Sub-section (3), and for his second contention, he has taken us into the evidence regarding recovery of the articles from the respective accused persons as showing that the evidence does not conclusively establish the possession of those articles by the prisoners, nor that the articles recovered are stolen properties. With regard to the confessions, his criticism is that the warning that is necessary to be given under Section 164, has not been given; secondly, that the learned Magistrate did not put questions to the accused persons concerned to elicit answers which would satisfy him that the confessions were voluntary. Beside these two, there are certain other defects, namely, that in certain paragraphs of the form for recording confession, the names and dates have not been stated. The column which requires to record the name of the persons by whom the accused is brought before the Magistrate for the purpose of recording the confession has not been filled in, and the printed certificate at the foot of the record has also not been signed. It further appears that so far as Deyali is concerned, whatever warning the learned Magistrate gave to him, he gave it on 27 October 1943, and when the accused was again brought before him on 28 October 1943, he did not repeat the warning thinking that this confession was in continuation of the previous record and no further warning was necessary. We have carefully considered these criticisms of learned Counsel for the defence, and agree with him that the defects in the record of the confession are really fatal and make the confessional statements irrelevant for the purpose of proving the guilt of the accused persons.