ABDUL JALIL KHAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal of six men from convictions under Section 396, I.P.C., and in the case of Abdul Jalil Khan and Abdul Shakur alias Shakuri, sentences of death and, in the case of Dilawar, Kundan, Chhida and Hemraj, sentences of 10 years rigorous imprisonment, including three months solitary confinement. The printed paper-book of the case runs to just over 300 pages. This is partly due to the fact that the learned Additional Judge has admitted on to the record the whole of previous statements made by witnesses. Previous statements of witnesses are only ordinarily admissible to corroborate or contradict the witnesses who have made statements at the trial, or by virtue of Section 288, Criminal P.C. The latter section should only be employed when there is reason to believe that a witness at the trial is deliberately departing from the evidence which he gave before the Magistrate and where it is considered by the trial Judge desirable to bring the whole statement made before the Magistrate on record as substantive evidence. As to corroborating a witness it is unnecessary, and this has been pointed out many times, for the prosecution to corroborate their witnesses by previous statements, until the statement made at the trial has been, in one way or another, challenged. As to contradicting a witness it is not in accordance with law to use his statement made on a previous occasion, until the particular statement, by means of which it is desired to contradict the witness, is put to him and he is asked what explanation he can give. In neither of these two latter cases is the previous statement itself substantive evidence. We recognize however that in the present case, in bringing the whole of previous statements on to the record, the learned Judge was only moved by a desire to give the accused every opportunity of making such criticisms against the witnesses testimony in the Sessions Court as they could found on the earlier statements. The learned Judge's judgment extends to nearly 40 pages of the printed record, and he has dealt with the case ably and exhaustively. If as we think, he has dealt with it in greater detail than is necessary, we again recognize that is an error on the right side and that he was only desirous of dealing with the case thoroughly. He has certainly succeeded.

(2.) We have listened to counsel for the appellants for several days and he again has given very commendable labour and time to the study of this brief. These facts, however, which we can and do record with approval make it the less necessary for us to enter into details ourselves. The evidence consists of that of an approver, Narain, and a number of men who were eye witnesses to the dacoity. The learned Judge has further relied on what is described as the confession of one of the accused Dilawar. Except in one very important feature, dealing with the arrival of the dacoits on the spot and the part actually taken by Dilawar, there is no serious discrepancy between the so called confession of Dilawar and the statement of the approver. The approver Narain's statement is that some of the dacoits came to a spot on the road to the village where the dacoity was committed on a tonga driven by one of the witnesses for the prosecution, Hafizul Rahman. Hafizul Rahman minimises his own share in the dacoity and says that he was compelled to drive some of the dacoits there. This explanation of his own presence among the dacoits is apparently accepted by the Crown.

(3.) Dilawar, accused, in his so-called confession describes how he drove the same two dacoits who are alleged to have come with Hafizul Rahman on his own ekka and says that he was compelled to this course by threats. The Crown did not in the case of this man accept the explanation. The fact remains that we have in the so- called confession of Dilawar and in the statement of the approver, as supported by Hafizul Rahman, two irreconcilable stories, one of necessity deliberately false, as to the manner in which some of the dacoits came to the meeting place. It would be possible perhaps to offer an explanation of this conflict, but in view of the line that has been taken in this Court by the Crown, it is unnecessary to deal with it in detail. The learned trial Judge has given some weight to the alleged confession of Dilawar, but in this Court the Crown has thrown it out and does not ask us to rely upon it. We think that the learned Government Pleader was right in adopting this course. Whether or no Dilawar had told the truth in the rest of the story in the alleged confession and only endeavoured to protect himself by explaining that he was forced into the course that he followed, the fact remains that the confession, as it stands, does not implicate him himself and is in fact not a confession at all, but an explanation exculpating himself from his alleged share in the dacoity. We need not therefore say anything further on the subject of Dilawar's confession more than this, that we had to examine very carefully the circumstances in which it was made to see whether any conclusion could be drawn from these circumstances from which the appellants were entitled to reap an advantage. We do not think, however, that any conclusion can be drawn from those circumstances in favour of the appellants.