NAUBAT SINGH Vs. EMPEROR

JUDGEMENT

(1.) The seven appellants, Naubat Singh, Chob Singh, Ram Sarup, Shib Cliaran, Hansa, Kharga and Karan Singh, have been convicted by the learned Sessions Judge of Muttra, of an offence under Section 395. Indian Penal Code, and sentenced to seven years rigorous imprisonment each. The dacoity in question took place on the night between 23 and 24 April 1934, at the house of Angan Lal in the village of Bajna in the Muttra District. As to the fact of dacoity there is no doubt whatever, and it is also clear that it was a dacoity of a very serious nature. Some 25 or 30 persons are said to have taken part in it; they used firearms and they looted the property of Angan and took it away. But it is also in evidence that they met with serious resistance. The village is a large one, and two police constables named Sadiq Ali and Babu Singh with two chowkidars were patrolling it. On hearing the noise pf the dacoity, they came to the spot and finding that looting was going on, they went up on to the roof of Durga, who has a shop at a short distance from Angan's house, and from there they observed the proceedings and also fired at the dacoits, one of whom was afterwards found to have been killed by gunshot wounds and another, as afterwards appeared, was seriously injured. Another of the dacoits was killed by one of the villagers with a spear. The dacoits had some "mashals" with them and also electric torches, and as it was a moonlit night, it has not been argued that it would not have been possible for the witnesses for the prosecution to have identified the dacoits on account of the absence of any light.

(2.) Although the list of property said to have been stolen was handed in to the police, none of this property was recovered. One of the appellants however Naubat was arrested in Bulandshahr District, on the 26 April. It should be mentioned that the report of the dacoity had been made in the early morning of the 24th April, at the thana of Nohjhil in Muttra District, and it was only by accident that. Nauhait was discovered by the police to have been suffering from gunshot wounds in the District of Bulandshahr, a couple of days later. The Bulandshahr police do not appear to have had at that time any official news about this dacoity. The second officer of the Bulandshahr Kotwali heard from a resident that Naubat was lying in a dangerous condition with gunshot wounds received in a dacoity, and he naturally made inquiries and found Naubat lying on a cot in a precarious condition. He therefore took him before a Deputy Magistrate where Naubat's statement was recorded on the 26 April. Naubat was subsequently sent to hospital where he was kept for about a month.

(3.) Sixteen men were ultimately prosecuted in connexion with this dacoity, and seven of them have been convicted. The evidence on which they have been convicted consists of the confession of Naubat and a number of statements by witnesses, a large number of whom have identified the present appellants as having taken part in the dacoity. It was argued in the first place in this Court that the statement made by Naubat to the Magistrate on 26 April 1934 was not admissible in evidence. The Magistrate did not record the questions put by him to Naubat arid the answers made by Naubat in the manner required by Secs.164 and 364, Criminal P.C. and also by the Government orders on the subject. The recording Magistrate gave evidence in the course of which he stated that he did not think that it was necessary to note down the questions and answers, though he stated that he had put all the necessary questions and was satisfied that the statement was voluntary. In these circumstances, the Judge held that the statement was admissible in evidence as a confession, and in this he is supported by the decision of a Full Bench of this Court in the case of Muhammad Ali v. Emperor 1934 All. 81. It has been argued by Mr. Kapildeo Malaviya, however that the irregularity in the procedure could not be cured by the evidence of the Magistrate, because in this case Naubat had been prejudiced by the failure to record questions and answers as required by law. The argument is that although the general impression created by the statement as it has been recorded is to the effect that Naubat took part in the dacoity, yet it is capable of the interpretation that Naubat was merely watching the dacoity and was not one of the dacoits, and that this would have been brought out if the statement had been properly recorded. It has also been argued that this confession was not, made to a Magistrate "in the course of an investigation" under Chap. 14, Criminal P.C. because although Naubat had been arrested by the Bulandshahr police, they had not taken action in the course of the investigation which had been instituted in Muttra. It was also argued that the confession, even if admissible against Nauhat, could not be used against any of his co-accused, especially as it had been retracted. I do not propose to discuss these questions at length because after hearing counsel on all the evidence for the prosecution, I am satisfied that the evidence is, sufficient without making any use of this statement. It is clear however that the statement was of great importance. It was made in circumstances that precluded all suspicion of undue influence, and it would have been unfortunate if it had been necessary to decide against admitting it merely on some technical ground or because the rule for recording confessions had not been strictly followed.