BHAGWAT Vs. EMPEROR

JUDGEMENT

(1.) The three appellants, Bhagwat, Ram Lal and Chhangur, have been convicted by the learned Sessions Judge of Gorakhpur of an offence under Section 395 Penal Code and sentenced to five years rigorous imprisonment each. The story for the prosecution is that on the night between 13 and 14 April 1934, some 15 or 16 dacoits armed with lathis broke into the house of Sarju and his brother Mahant, and plundered the house and beat the occupants as well as some of the neighbours. Kumar Sukhai and Sundar, who came to their help. Subsequently the dacoits made their escape, and a report was made at the t.hana 14 miles away by Mahant on the following day at 4 p.m. This report does not mention the names of any decoits who had been recognised, though Mahant stated that he could identify them if he were to see them. He added a list of property stolen, which is very insignificant, and when the investigating officer went to the village the same evening a list giving details of some more property was handed to him. An investigation followed, but none of the property said to have been stolen was recovered. The police however found out that Sarju had been threatened by Bhagwat with whom he had had a wrestling match, and after some further enquiry Bhagwat was arrested and made a confession on 2nd April. This confession is to the effect that Bhagwat had had a quarrel with Sarju over a wrestling match, and that the dacoity was planned in order to revenge Bhagwat on Sarju. Bhagwat named himself and several others, some of whom were put on their trial in this case, as having taken part in the dacoity. The learned Judge has relied on the confession and has convicted the appellants because there was, in his opinion, sufficient evidence to corroborate the confession of Bhagwat. The rest of those who were named by Bhagwat were put on their trial, but those against whom the corroborating evidence was considered to be insufficient were acquitted.

(2.) Dr. Vaish, who has argued this appeal on behalf of the appellants, has pointed out that in the report which was made at the thana by Mahant no mention is made of the quarrel over a wrestling match, and although it is stated that the dacoits could be identified Bhagwat is not named, though he was undoubtedly known very well both to Sarju and to Mahant. It is true that when he made a statement in the Sessions Court Mahant was not asked to explain why he did not mention the name of Bhagwat when he made the report at the thana. When Sarju made his statement however this difficulty about the prosecution case did occur to counsel who was cross-examining and Sarju made the following statement: I saw the dacoits entering the house and coming out of it. I saw the faces of all the dacoits. Bhagwat broke my teeth in the dacoity. I did not say that to the Sub Inspector. I did not see Bhagwat in the dacoity for he did not (happen to come near me.

(3.) I have compared the statement as recorded in English with the vernacular, and there can be No. doubt that Sarju did say, in the first place, that he saw the faces of all the dacoits and that Bhagwat. broke his teeth, and that he then went to say after he had been reminded that he had not mentioned this to the sub- inspector, that lie did not, see Bhagwat in the dacoity because he did not happen to come near him. Now it is not absolutely impossible that Bhagwat should have taken part in the dacoity and yet not have been recognised by Sarju and his brother, in spite of the fact that they did recognise some of the other dacoits. But it would be very remarkable, and the statement made by Sarju in Court must arouse grave suspicion. The theory for the defence of course is that although there was a dacoity, no one was recognised and the police not being able to find the real dacoits, built up a case out of the quarrel between Bhagwat and Sarju, of which they ,heard in the course of the investigation. There is a very remarkable circumstance that, throws additional suspicion on the case for the prosecution, and that is that two other persons, Sheopujan and Jabuhans, both of whom are named by Bhagwat in the dacoity, made "confessions" which on the face of them appear to be as voluntary and as reliable as that, of Bhagwat. Neither Sheopujan nor Jaduoans has been prosecuted in this case and although it appears that their names were included in the list of prosecution witnesses, they did not give evidence. If these two men made voluntary confessions implicating themselves and others and yet were not prosecuted, it can only have been because the prosecuting authorities had not sufficient confidence in their confessions. Yet they appear to have been made in the same circumstance as that of Bhagwat and are similar.