RAMHIT Vs. EMPEROR

JUDGEMENT

(1.) Thegu, Rambali, Ramhit, Raghonandan and Jamuna were put on their trial before the learned Sessions Judge of Gorakhpur on a charge of dacoity. He acquitted Raghundan and Jamuna and convicted the remaining three and contended them to five years rigorous imprisonment each, They have appealed; Thegu and Rambali from jail and Ramhit is represented by Counsel. The dacoity is said to have taken place on the night of the 8th of June 1921 at the house of one Chanderbhan. Chanderbhan made a report in which he said he had identified three persons whom he named and that a large number of other dacoits had robbed him. He gave three separate lists, at least, of property which he said had been looted, The persons named in the report were arrested and their houses searched, but they were released by the Police and not sent up for trial as the search of their houses produced nothing suspicious, It is not very clear how the Police got on to the track of the five persons who were ultimately put on their trial. It appear, however, that Sub-Inspector Sat Narain searched the house of Thegu on the 19th of July and took possession of a large quantity of property. A great number of the articles found in the possession of Thegu have been identified by Chanderbhan and other persons of the family. The number is so large that I do not think there can be any doubt as to his guilt. I think it more probable that he was, the actual thief, rather than a receiver . There remains the case of Rambali and Ramhit. When the house of Thegu was being searched the Sub-Inspector says that Thegu mentioned Rambali and Ramhit as persons in whose possession property would be found. In consequence of this information the houses of Rambali, and Ramhit were searched. Nothing suspicions was found in the house of Ramhit but Thegu appears to have indicated a dupatta which Ramhit was wearing and said that it was part of the proceeds of the dacoity. The learned Judge felt that there was some difficulty about the admissibility of this statement. He says: "I think there can be little doubt, in view of the provisions of Section 27 of the Indian Evidence Act, that this statement of Thegu has a certain value both against himself and Rambali and Ramhit, accused". The statement is not admissible in evidence against Thegu himself nor is it admissible against Rambali or Ramhit as proving their participation in the dacoity, I think the learned Sessions Judge is wrong in his interpretation of Section 27 and in this connection I would call his attention to Emperor v. Kangal Mali 26 Ind. Cas. 161 : 41 C. 601 : 15 Cr, L.J. 13. The statement made by Thegu to the Sub inspector amounted to a confession or it did not. A statement made by an accused to a Police Officer, if it does not amount to a confession, may nevertheless be used against him and more particularly if the statement made turns out to be false in the light of the other evidence in the case. If it amounts to a confession (which in my opinion it does not) then it must be excluded from evidence altogether under Section 25, but, in either event, it can only be used against Thegu himself. A statement made by one accused person can only be used against another co-accused person if the provisions of Section 30 are applicable. All really that the Sub-Inspector ought to have been allowed to say was that, in consequence of something Thegu said to him, he searched the houses of Rambali and Ramhit and took possession of these articles. Against Ramhit the only admissible evidence is the fact that on the 19th of July he was wearing a dupatta which two witnesses, namely, Chanderbhan and one of the women, identified with some certainty. Chanderbhan says it was his and Musammat Pirthi corroborates him. Another woman, it is true, identified it as belonging to Chanderbhan, but as she made three mistakes about other articles of clothing, her identification does not carry much weight. The dupatta is not before me. I would call the attention of the learned Sessions Judge to General Letter No. 1037-8-4 of 1921. This certainly was such an exhibit as would prove of material aid to the High Court in reaching a correct decision in this case. There was nothing suggested in the record or in the judgment to indicate that there was anything peculiar about this dupatta which would make its identification easy or probable. Therefore, 1 am not so convinced that this identification is correct that I would base the conviction for dacoity upon it, but, apart from that, it seems to me that even if it be granted that this dupatta was stolen in the dacoity, the fact that it was found some 40 days afterwards in the possession of Ramhit, not hidden away he it noted but actually openly worn, would not lead to the necessary inference that Ramhit took part in the dacoity, I am not sure even if it would be sufficient evidence to convict him under Section 411 mush less Section 412 of the Indian Penal Code. It is true that Ramhit has not been able to convince the Court of how it came into his possession, but it is for the prosecution to establish their case and, because an accused person loses his head or gets frightened and does not tell the truth, he cannot, on that account, be convicted. The learned Judge says that there is nothing to show that Thegu had any comity against Ramhit. It seems to me quite possible that Thegu was a great friend of Ramhit and gave him as a present this head-dress which Ramhit was pleased to wear. In my opinion the Assessors took a correct view of the evidence in his case. Coming now to the case of Rambali, I think it is sufficient to quote the reasons given by the learned Sessions Judge who convicted him, 88 sufficient ground for acquitting him. He says: "The cases of Rambali and, to a greater degree, of Ramhit, are decidedly more doubtful. In Rambali s possession there were found only a woman s dhoti a piece of square cloth or jharan and a piece of long cloth and a piece of muslin, These are articles which he might perhaps have owned himself, although I do not think it is particularly likely. They are fairly well identified, but apart from the dhoti they are not articles which admit of very certain identification. Nonetheless, in view of the identification and of the way which these articles were traced to Rambali s possession, I find it difficult to reject the prosecution case against him." The learned Sessions Judge has shown that these are not such things as would be easily identifiable and they might well have belonged to Rambali. As to the identification, he says: "they are fairly well identified." They are identified to his satisfaction or they were not, I take it that he would not have been satisfied with the identification if it stood alone, for he goes on to say: "in view of the way in which these articles were traced to Rambali s possession, I find it difficult to reject the prosecution case against him." In other words, he brings in aid the statement which he allowed Sat Narain, Sub-Inspector, to depose to as having been made to him by Thegu accused. In my opinion that statement cannot be used against Rambali. The result is, that I dismiss the appeal of Thegu. I allow the appeals of Ramhit and Rambali, acquit them of the offense of which they have been convicted, and direct that they be released.