HASAN ALI Vs. KING-EMPEROR

JUDGEMENT

(1.) This appeal concerns a dacoity said to have been committed and which was undoubtedly committed, at the house of Brij Rai Pandey, in the village of Pipra Hamail, in the Gorakhpur district, at some time in the middle of the night of the 27th-28 July 1924. The police station of Hata was five miles off, and the first report was made at 10 a.m. on the 28th. One of the alleged dacoits, Dukhi, was captured on the spot, and on the 31 of July, he was taken before a Magistrate and made a confession recorded under Section 164 of the Code of Criminal Procedure, and he has not retracted from that confession though he has filed an appeal from jail. His uncle, Nagri, says that he, Nagri, gave himself up after having consulted the karinda of his zamindar. He suggests that he was alarmed when he found that one of the dacoits, his nephew Dukhi, was missing, and apparently thought it advisable to consult the karinda as to the best way of saving his own skin. On the other hand, a constable takes to himself the credit of having arrested Nagri because he noticed that he had injuries. It is not really material to determine which of these two versions is correct, for the really important question is whether we can believe in substance the confession of Nagri recorded under Section 164 on August the 1st. Two other of the appellants before us, Chilar and Palku, also made confessions on August 3 a August, 4th, which were recorded under Section 164 but which they have retracted. As a result of these confessions and of the subsequent investigation, 19 men were sent up for trial of whom the learned Sessions Judge has convicted 12 who are now the appellants before us. One very important question which arose for decision in the case was as to whether this was an ordinary dacoity in which the purpose of one and all of the dacoits was to loot, or whether it was an attack on the house of Birj Raj of which the motive was the personal animosity of a man called Nirhu, Mukhia of the village of Pipra Hamail, and his supporters. Birj Raj alleges that such enmity existed, and it is admitted on all sides. It was due to the rivalry between Nirhu and Birj Raj for the post of Mukhia when Mangal, the previous holder, died. In this rivalry Nirhu had so far succeeded that he had been appointed. A number of witnesses, chiefly Birj Raj and those under his control in the sense of being members of his family or servants, named Nirhu and others of Nirhu's family. Of those all have been acquitted with the exception of Munshi, who was a cousin of Nirhu. The fact, however, that Munshi has been convicted means that the question remains of some importance as regards his case as to whether this was an ordinary dacoity, or whether it was due to personal animosity, even though a number of those taking part in the attack may have had no motive of enmity themselves, and had merely joined for the sake of what they might be able to get out of it. One fact is clear that they got very little out of it, if anything. No property of any sort or description has been recovered with the exception of a hamel, which was said to have been found in a bagh close by, and two or three articles said to have been taken off the person of Dukhi when he was captured on the spot. According to the prosecution evidence as appearing in the statement of the approver and the confessions of some of the accused, it would appear that the dacoits had very definite information that several Gharas filled with rupees would be found buried under the cot of one of the women living in the house. No serious attempt appears to have been made to get at this money. The only evidence on the record pointing in this direction is that the investigating officer says that he found the ground at one place dug up in Mt. Gomti's room. No attempt was made at the trial to get anything further out of the Sub-Inspector or out of the approver as to why, if it was known that the money was in a particular spot and the object of the dacoity was only loot, some of the dacoits at least did not go straight for that spot and make a serious effort to get it. Another feature of this dacoity is that there were at least 28 men who are said to have taken part in it, while the only men sleeping in the house of whom we hear are Birj Raj complainant, his younger brother Rajendra, and a man called Gudri who was sleeping with them. Three women, of one of whom we hear nothing further, were sleeping inside with two children. The story of the attack on the house really amounts to little more than the beating of Birj Raj and his brother Rajendra, and the snatching of some ornaments from the persons of two of the women. A number of slight injuries appear to have been inflicted, some of them apparently with a pointed weapon alleged to be a spear, but there was nothing in the nature of really serious injuries. On the other hand, some of the dacoits themselves received spear wounds also of a minor description, and apparently inflicted either with the spear that one of the party took with him and which was snatched from him, or with spears which the inmates of the house possessed. The whole occurrence described could not have taken really more than a minute or two before the dacoits fled upon the approach of the villagers. The whole incident, to our minds, indicates that it was rather in the nature of an attack on Birj Raj with a hope and expectation on the part of some of the assailants of getting some loot, rather than that of a determined dacoity for the purpose of loot and loot only. Further, we find in the statements of the approver and of the confessing accused, indications that the dacoits were not old hands at the game, and were rather to be described as bad characters of a petty sort, and, lastly, we find that there is not a single previous conviction against any one of them of any serious offence of violence such as would permit the use of Section 75 of the Indian Penal Code. The general conclusion from these facts and the general impression that we have formed from the evidence on the record is that it is more probable that the origin of the attack is to be found in personal enmity against Birj Raj and his household, rather than in the sole intention to loot. If we express ourselves in regard to this part of the case somewhat vaguely, it is only because owing to the nature of the trial in the Sessions Court, where no proper attention was directed to this point, and where there are no reliable indications in the evidence on the record. The next point upon which we will comment is the statement of Nagri recorded under Section 164. We find that the Magistrate in recording that statement at first approached it in a proper manner. He satisfied himself that the statement was of a voluntary nature, and then proceeded to take it. Nagri detailed his whole story. He had come to within the last few lines of his statement when for the first time he mentioned one of the present appellants before us, namely, Hasan Ali. He said: "In the morning I enquired from Bandhu, Jahangir, Hasan Ali, Sundar, Mundar and Muneshar, but they said that they had got nothing." This was his first and only mention of Hasan Ali. The Magistrate then put him the question: "You have mentioned above the name of Hasan Ali; did he also take part in the dacoity," and the answer was: "Hasan Ali also took part in the dacoity," and the deponent went on to say further things about him. The Magistrate next asked: "What more do you want to state?" In reply to this very proper question the narrative given by the witness continues for some time, but it very soon is apparent from the record of his statement-though question and answer are not recorded that the Magistrate was beginning to ask him questions and the further we go into the record of the statement, the more apparent it is (questions and answers being sometimes recorded) that the remainder of his deposition was solely elicited by questions put to the deponent. The Magistrate himself in his evidence has stated to the Court: "All the questions put to Nagri are not recorded." It is manifest from the statement that is so. Strong objection is taken by Mr. J.M. Banerji, particularly on behalf of Hasan Ali, to this procedure. We think his objection is entirely justified. It would be going much too far to say that a Magistrate recording a statement or a confession under Section 164 cannot and should not ask a single question of the deponent. But it is equally certain that his position when recording such statement or confession, is merely that of a recording Magistrate, and that he is in no sense enquiring into the case, and that he is in no sense an Investigating Officer. The whole object of the section is very clear. Such statements and confessions made to a police officer are not regarded as being made in circumstances which justify a Court, under ordinary circumstances, in relying upon the record of them, and they cannot be ordinarily put in evidence. But it is desirable that if a witness is really willing to make a statement, or a guilty person is really willing to make a confession, that a record of that should be made in such circumstances as may make it reasonably safe to rely upon it. We think that the Magistrate would be justified in, and ought in the ordinary performance of his duties to clear up any matter which is ambiguous on the face of the statement, but that ho is wholly unjustified in extracting by questions from the deponent facts which the deponent has not spoken to in his Court and facts of which the Magistrate himself would only be aware because he has been supplied with some copy of a statement which somebody else alleges the deponent has made and is willing to make again before the Magistrate, or unless he is prompted by somebody who is aware of such facts.

(2.) Every thing must depend on the nature of the questioning and the object of it; and the mere fact that an answer was elicited by a question does not make the proceedings improper, or the statement inadmissible as a confession. In the present case it is clear that the deponent had left the matter of Hasan Ali ambiguous. He had already mentioned fives men as amongst those who had taken part in the dacoity. He then described himself as making an enquiry the next morning about their share of the loot from these five men, and adding a sixth man. The Magistrate was quite right to notice that the facts were left ambiguous as regards this sixth man, and he might very well have said to the deponent: "Why did you ask Hasan Ali if he had received any of the loot?" But the form of the question which he actually put in a leading form: "Did he also take part in the dacoity?," was open to exception. We have said enough to indicate the nature of the questioning which we think is permissible under Section 164, and it is unnecessary to pursue the record of this statement further, for it is obvious on the face of it that a very large number of the questions asked were not prompted by any wish to clear up an ambiguity, but were based on a knowledge of the statement which the deponent might be expected to make, obtained from some record given to the Magistrate or from information supplied to him orally. It is clear that the questions were questions which could not have been prompted by anything which the deponent had himself said before the Magistrate.

(3.) Another point on which the record of the statement is defective is that under Section 164 the Magistrate is bound to record every question that he asks. This he clearly did not do, and admits he did not do. It is of great importance that this provision of the law should be obeyed, otherwise it may be impossible to tell how far a witness voluntarily deposes to a matter, and how far it was extracted from him by questioning even in the nature of cross-examination.