SIDHESHWAR NATH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against the appellate order of the learned Sessions Judge of Agra, upholding the conviction of Sidheshwar Nath under Section 394, Indian Penal Code. The case for the prosecution was that on 4 January 1933, at about 5 p.m., Rup Narain, who is a postal overseer, was taking a bag containing cash, amounting to over Rs. 4,000 in value, from the branch post office to the head office. When he had reached a gate of the Thomason Hospital he was assaulted by a man who seized the bag and hit Rup Narain over the head with some weapon and attempted to snatch away the bag. Rup Narain resisted vigorously and cried for help whereupon some bystanders came to his assistance and the robber ran away. He was chased, but managed to make good his escape by climbing over a wall and entered the Kalibari temple. Rup Narain made a report of the occurrence the same evening at 7 p.m. He stated that he did not know the name of his assailant, but he gave a description of him as being of wheat complexion, long face, average height, moustaches clipped, wearing a Gandhi cap, a white kurta and a white dhoti and about 20 to 25 years of age. The accused was arrested the same night at about 1 a.m. It appears that his name was mentioned to the police by P.C. Bhattacharya, one of the prosecution witnesses, who had not witnessed the actual assault, but had been in the Kalibari temple through which the assailant escaped. The fact of the attempted robbery is not disputed. It is the case for the defence that the accused was not the robber and has been implicated by mistake.

(2.) The evidence upon which the accused has been convicted consists of the identification made by Rup Narain in jail, and of Rup Narain's evidence in Court, supported by a confessional statement made by the accused to Mr. Evans the City Magistrate. The rest of the prosecution evidence does not implicate the accused, but is distinctly in his favour. The eye-witnesses, namely Daniel Liaqiat Ali, Yakub Ali and Bhattacharya all deposed definitely that the accused was not the assailant. They were declared by the prosecution to be hostile witnesses and have been cross-examined on behalf of the prosecution, but their evidence is distinctly in favour of the accused and tends to show that the actual robber was some person other's then the accused. Liaqat Ali and Yakub Ali were sent to identify the accused in jail and they did pick out the accused, but they have explained that they did not pick him out as being the robber but as being Sidheshwar Nath whom they had been asked by the Tahsildar Magistrate to identify. However this may be, they are clear on the point that Sidheshwar Nath is not the culprit and that they only picked him out in jail because they were asked to identify Sidheshwar Nath and they did so as they knew him from before. The accused made a confessional statement to Canon Holland, the principal of the College, but his evidence was not recorded, as the Magistrate ruled it out as inadmissible because the confession was made to Canon Holland while the accused was in police custody, and when no Magistrate was present. The principal contention of the learned advocate for the applicant is that the unrecorded confession made to Mr. Evans could not be proved by the oral testimony of Mr. Evans.

(3.) It appears that Mr. Evans, who was the City Magistrate of Agra, was asked by the police by telephone to come to the kotwali for the purpose of conducting identification proceedings in connexion with the attempted robbery on Rup Narain. He came to the kotwali at about 9 a.m., and on arrival came to know that no identification proceedings would take place, but the accused was brought to him in a room at the kotwali for the purpose of having his confession recorded. The accused was at first very doubtful about the use which might subsequently be made of his statement. When the Magistrate told him that any statement of confession that be might make would be used in evidence against him he re-fused to have his statement recorded. Mr. Evans therefore did not attempt to record any statement, but he had an informal conversation with the accused in the room at the kotwali for about half an hour. No police officer or other person was present during this conversation. The accused did not make any direct admission of his guilt, but he did make certain statements from which some inference regarding his guilt might be drawn. He ntated that he had exceeded the limit of the instructions he had received from the C.I.D. Authorities. His explanation was that he had been instructed by the C.I.D. Authorities to gain the confidence of a medical student, named Sujan Singh. This Sujan Singh told the accused to get money in order to procure arms and ammunition. He stated that in order to win the complete confidence of Sujan Singh he had done whatever he had done." He also inquired from Mr. Evans that when a police informer is implicated in an offence what action would be taken against him. He also told Mr. Evans that he was a police informer.