- (1.) RAMPHAL and Bishan Gujars of village Tharkapura Sub-Division, Karauli, have been convicted by the Additional Sessions Judge, Karauli under secs. 325 and 323 of the Indian Penal Code respectively. RAMPHAL has been sentenced to three years' rigorous imprisonment and a fine of Rs. 100/ -. Bishan has been sentenced to one year's rigorous imprisonment and a fine of Rs. 100/ -. In case of non-payment of fine, RAMPHAL has been ordered to undergo six months rigorous imprisonment and Bishan to undergo three months' rigorous imprisonment more.
(2.) THE prosecution case was that on the 15th May, 1948, between 9 and 10 A. M. Mangal gujar with four members of his family, namely Kamod, Shoru, Sriphal and Johri were busy digging a well, when the two appellants Bishan and Ramphal in the company of about thirty persons came to the spot and assaulted Mangal and his companions with lathies, gandasie and lohandi (heavy twig) etc. It was alleged that the party of the accused which was made up of about thirty persons broke up into parties; one of thirteen and another of seventeen persons. THE party of thirteen which included the two appellants and Bhattu, Har Kishan, Jhinsoli, Ramdeo and Chiranji assaulted Mangal, whereas, the remaining, about seventeen persons assaulted Kamod, Johri, Siriphal and Shoru. Mangal was seriously injured and the other companions of his also received various injuries. Budha Ram Lambardar came to the spot and arranged to send Mangal and the other injured persons to the village. A report signed by Budha, Mohna and Latur gujars, among others, was lodged at the police Station Gurla through a chamar. Investigation was taken in hand and ten lathies were received, during the investigation, from the house of the appellants Ramphal and Bishan both as well as from the houses of those who were also among the accused, by the Police. THE deal body of Mangal, who died shortly after he was brought to the village, was sent to the Police Station and then to Karauli Hospital, where post-mortem examination was made by Dr. Chiranjilal. Johri, Kamod, Siriphal and Shoru were also medically examind. THE statements of the two appellants as well as of Har Kishan Jhinsoli, Battu, Chiranji and Ramdeo were recorded under sec. 164 of the Criminal Procedure Code before Mr. Des Raj Chawla 1st Class Magistrate, Karauli. After investigation, the case was challaned in the court of Mr. Chawla, 1st Class Magistrate Karauli, against the appellants Ramphal and Bishen, as well as against Battu, Ram Kishan. Jhinsoli, Ramdeo and Chiranji. THEy were all challaned under sec. 302 and sec. 148 of the Indian Penal Code. After inquiry they were committed to take their trial in the court of the Additional Sessions Judge, Karauli under sec. 304, read with sec. 148 of the I. P. C. At the time when the offence was committed, according to the law prevalent in Karauli, which had not been superseded by any other law of Matsya, which had by then come into being, commitment was not necessary even in cases like the present and the Sessions Judge could try the cases as warrant cases without any commitment. Learned Additional Sessions Judge, therefore, adopted the procedure relating to warrant cases in his court. All the accused denied the charge, but the learned Additional Sessions Judge, while holding that no offence was proved against Battu, Har Kishan, Jhinsoli, Ramdeo and Chiranji, held the appellants Bishan and Ramphal guilty of offence under sec. 323 and 325 of the Indian Penal Code respectively and sentenced them as noted above. Against their convictions and sentence, the appellants Bishen and Ramphal have come in appeal to this Court. It has been argued by Mr. B. B. Sharma on behalf of the appellants that the learned Additional Sessions Judge has himself not believed the prosecution evidence against five of the seven accused. He has not unhesitatingly believed that evidence even against the two appellants but has convicted the two appellants only because in his opinion they made a voluntary and true confession before Mr. Chawla 1st Class Magistrate, Karauli. It was argued that the so called confessions were neither voluntary nor true. The learned Magistrate did not take any of the precautions which are necessary under sec. 164 of the Criminal Procedure Code while recording the statements of these two accused. The accused were produced before the Magistrate from the police custody and were also returned to the police custody after their statements had been recorded. The statements which were made do not support the prosecution in material particulars and went against the medical evidence. The names of the accused were not mentioned in the first information report nor was any of the eye witness examined on the date of occurrence, although they were all present and it has been stated by these witnesses that they had told the investigating officer what they had seen. The names of the accused were disclosed more than twenty four hours after the incident, and, therefore, no reliance can be placed upon the statements of the witnesses who gave out the names of the accused after about twenty four hours and who were themselves not examined at the earliest possible moment. It was further argued that the evidence of the so called eye witnesses was against the medical evidence. It was further argued that all the eye witnesses belonged to the family of Mangal deceased and other injured persons and they were not disinterested witnesses. It was, therefore, argued that the offences were not brought home to any of the accused and they ought to have been given the benefit of doubt. On behalf of the State, it was argued by Mr. Ram Avtar Gupta that there was nothing in the statements of the prosecution witnesses to doubt their telling the truth so far as the two appellants are concerned. It was further argued that there was no material discrepancy between the statements of the prosecution witnesses and the medical evidence. As regards confessions, it was argued that they were voluntary and true and simply because Mr. Des Raj Chawla did not put certain preliminary questions to the accused before taking down their statements, it would not make the statements under sec. 164 of the Criminal Procedure Code inadmissible or unworthy of credit, specially because the accused did not, at the earliest moment, retract those statements. I have considered the arguments of both the learned counsel. There can be no doubt that the prosecution has been able to produce a few witnesses who have deposed that they saw the two appellants dealing blows to the deceased Mangal. These witnesses are P. W. 3 Kamod, P. W. 4 Siriphal, P. W. 5 Johri, P. W. 6 Rattan, P. W. 7 Jawansingh and P. W. 8 Latur. All these witnesses have said that they saw the two appellants' in the company of the five, acquitted by the learned Additional Sessions Judge and a few others, assaulting Mangal. They also said that both the appellants and the remaining eleven companions caused hurt to Siriphal, Shoru, Johri and Kamod, but all these witnesses were related to Mangal deceased. Siriphal, Johri and Kamod were themselves injured and so, it cannot be said that the witnesses were independent and disinterested. However, the mere fact that the witnesses are either the complainants themselves or related to the complainant cannot be sufficient for discarding their evidence if otherwise their evidence is such as to impress the court that it is true. The statements of all these witnesses create doubt in my mind as it appears to me that all these witnesses had departed, to a large extent, from truth and had made exaggeration. They had implicated certain persons who were not proved guilty. Under these circumstances, it is not possible. . . for a court to come to a definite conclusion that it was Ramphal who dealt a lohandi blow to the head of Mangal which caused fracture and resulted in his death. There is yet one more circumstance which goes against the version of the prosecution. Among the signatories of the first information report Latur, who is one of the eye witnesses has not said in the first information report that he saw the fight and as to who were the accused. If he were present at the spot or if the two appellants were among the assailants it is very improbable that the names of the appellants should not be mentioned among the assailants of Mangal. The investigating officer Chagganpal, suggests that he could not take down the statements of Kamod, Siriphal, Johri and Shoru because they were not in their senses. Kamod, however, says that when Budha reached the place of occurrence immediately after the occurrence, he was in his senses and he related the whole story to him. He also says that he had given out the names of the assailants, also. He further says that when the investigating officer came after the report, he had also told him the names of the assailants of Mangal. Johri has stated that when he reached the place after the occurrence, he gave out the whole story. This does not fit in with the suggestion of the investigating officer that Johri was not in a fit state to give an account of the marpit arid also to give the names of the assailants. The police also prepared the plan of site and marked the place where Siriphal was said to be standing at the time of marpit. The position of none of the eye witnesses, who were produced in the case, was shown. Of course, it cannot be denied that the injured person must have been at the marpit which took place, but so far as other eye witnesses are concerned, it becomes very doubtful as to whether they were present at the spot or not. There seems to be absolutely no reason why, if the two appellants were amongst the assailants, their names should not have been given in the first information report and why the eye witnesses should not have been examined immediately on the date of occurrence. A time of about twenty four hours was allowed to pass during which much water could flow under the bridge and any story which might suit the purpose of the prosecution, might be invented. It becomes very doubtful that the names of the accused who were known, should have not been given in the first information report, made by the persons who posed to be eye-witnesses. It also causes doubt why the so called eye witnesses were not examined at the earliest possible moment before the police. In the case of Wilayat Khan and others vs. State of U. P. it was held by their Lordships of the Supreme Court that: - "where telegram about murder, given almost immediately after the murder was committed, does not mention the names of the assailants, the omissions a strong circumstance in favour of accused. " It was further held that: - "where the earliest information did not mention names of assailants, and though spears were alleged to have been used but there were only mild scratches or very minor incised wounds, neither deep, nor wide and where there were many other improbabilities in the prosecution evidence, conviction cannot be founded". The circumstances which have been detailed above induced their Lordships to agree with the Sessions Judge, who had acquitted the accused, and to disagree with the High Court who had set aside the acquittal. In that case too, a number of witnesses were examined on behalf of the prosecution, but in the light of circumstances made out in the case, their Lordships agreed with the Sessions Judge in disbelieving the evidence of the prosecution witnesses. The learned Additional Sessions Judge has not found himself in a position to believe the evidence of the prosecution eye witnesses. He has rejected their evidence in major part and has sought support from it is the case of the two appellants only because in his opinion they made a voluntary confession before Mr. Des Raj Chawla which, in his opinion, was true. It may be said with respect to the so called confession, that it was made when the two appellants were produced from the police custody. Even after the recording of their statements they were sent back to the police custody where they lived for six days more. The learned Magistrate did not try to ascertain from the appellants before proceeding to record their statements whether they knew that he was the Magistrate, No question at all were put to the accused so that from their answers the court might have been in a position to know that the accused had understood that their statements were going to be recording before a Magistrate and they understood well that whatever statements they would make would fee read against them. According to sec. 164 of the Cr. P. C, confession shall be recorded and signed in the manner provided in sec. 364 of the Criminal Procedure Code. Sec. 364 of the Code of Criminal Procedure requires that the whole of the examination of the accused, including every question put to him and every answer given by him shall be recorded in full in the language in which he is examined. It does not appear from the record of the learned Magistrate that he put any questions at all to the two accused before he proceeded to record their confessions. Even if he put any such question he has not given in the language of the witnesses what answers were given by them. He has simply made a note that the accused were warned, that whatever statements they Were going to make, they should make freely and without any fear or pressure of any body. No doubt the learned Magistrate has also made a note towards the end that he had explained to the accused that whatever statements they would make would be read against them. Simply this note does not show in what words the questions were put to the accused and in what words the answers were given. Considering the fact that usual precautions were not taken and that the statements of the accused were recorded, when, before as well as after the recording of the statements they were in the police custody it cannot be said that the statements made were voluntary. If a confession is to be acted upon, it should be voluntary as well as true. It appears from the statements of both the accused that they were not altogether true either. The same exaggeration which finds place in the prosecution evidence is to be found in the confession of both these accused. Ramphal says that after Bishan had pelted Mangal with a piece of stone, he had himself dealt a danda blow to the top of the head of Mangal. Both of them gave Mangal numerous lathi blows. This is not borne out by medical evidence. Similar is the statement of Bishan. He named Battu, Ramdeo, Chiranji, Johri, Panchi, Sheodan, Jhinsoli and Har Kishen amongst the assailants. Both these accused used the words "ham donan ne jhoor dala" which creates suspicion that these words were put into the mouth of these two accused. On a careful reading of the statements of both these accused, it appears that whatever they have deposed was not true, but somehow or other they were made to depose on the lines which he prosecution was adopting. I am not at all satisfied that the statements of these two accused were either voluntary or true. It was argued by Mr. Ram Avtar Gupta on behalf of the State that the accused did not retract their statements at the earliest opportunity and retracted them only when they were examined in the court of the Committing Magistrate. True it is, that they were not retracted at the earliest possible moment, but after their statements had been recorded they were in the custody of the police for six days and if any pressure was exerted upon them or they were intimidated or some other inducement was given to them, it is not improbable that they could not get over it so long as they were in the police custody. Of course, afterwards they could have retracted their statements, but it cannot be expected of illiterate villagers that they would make any statement before the court unless they are asked to make one. As soon as they were examined before the Committing Magistrate, they retracted their confessions and said that their statements were neither voluntary nor true. Under these circumstances, I do not think that the fact that the accused retracted their confession only at the time when they were examined before the Committing Magistrate, would make their statements voluntary and true which for reasons shown above do not appear to be voluntary and true. It is certainly very regrettable that a serious offence like the present should go unpunished. There may be some grounds for suspecting that either the appellants or some of their party might have been the participants in the fight, but the court can neither act upon suspicion nor can it hold a man guilty because the offence is serious unless it is satisfied beyond reasonable doubt that it is the accused who have committed the offence. The appeal is allowed. The convictions and sentences are set aside. Both the appellants are acquitted. They are on bail and need not surrender to it. Fine if paid shall be refunded. .;