Narain Singh vs The State

P.C. Pandit, J.—The judgment will dispose of three Criminal Revision Petitions 63-D of 1961, filed by Narain Singh, 71-D of 1961, filed by Sher Singh and Nachhittar Singh, and 90-D/ of 1961, in which a learned Judge of this Court had issued notice for enhancement of sentence in Criminal Revision No. 71-D of 1961. These petitions arise out of the judgment of the learned Additional Sessions. Judge dated 25th February, 1961, convicting the three petitioners u/s 394/34, Indian Penal Code, and sentencing them to nine months'' rigorous imprisonment each.

The prosecution story is that on 23rd February, 1957 P.W. 9, Major B. Hanner, came to New Delhi and visited Connaught Place. He had to go back to Calcutta the same night by plane, which had to leave Palam Airport at 11-5 P.M. At about 7 P.M., he is alleged to have hired a taxi, which was being driven by Sher Singh. He asked the taxi-driver to go to Sikandara Road hutments, wherefrom he had to collect his kit. Nachhittar Singh, the other petitioner, is also alleged to have sat in the taxi along with Sher Singh. In the way, Nachhittar Singh asked the Major if he needed some good food. On the Major's giving the reply in the affirmative, both Sher Singh and Nachhittar Singh took him to the house of Narain Singh, the third petitioner. There the Major was served with food and whisky, which the purchased with his money. At about 10 P.M., the Major asked them to take him to Palam Airport. At this both Sher Singh and Nachhittar Singh sat on the front seat and Narain Singh sat with the Major on the back seat, saying that he wanted to go at a short distance of 2/3 miles. The prosecution story goes on to say that when the taxi had gone for some distance, it was stopped by Sher Singh. All the petitioners then pounced upon the Major and robbed him of his wallet containing Rs. 1,200/-, his cigarette-case with gold lining and a signet ring. The Major succeeded in opening the door of the taxi and came out. All the three petitioners followed him and beat him. He then ran away and hid himself in the bushes nearby. Upon this, the petitioners left the place in that very taxi. A Motor-rickshaw happened to pass by that way and the Major got into the same and came to the police-station, where he lodged the first information report at about 1 A.M. He was examined by P.W. 14, Dr. Daya Nand, on 24th February, 1957 at about 11-45 A.M., who found as many as 10 simple injuries on his person. Nachhittar Singh was arrested soon after the occurrence, while Sher Singh was arrested at 4 P.M. on 24th February, 1957. Narain Singh, however, is alleged to have absconded and he surrendered himself in Court on 2nd March, 1957. In an identification parade, which was held on 26th February, 1957, the Major is alleged to have correctly identified both Sher Singh and Nachhittar Singh. Narain Singh, however, refused to participate in the identification parade, which was going to be held for his identification on 15th May, 1957. After the investigation of the case, the petitioners were challaned.

Sher Singh and Nachhittar Singh, petitioners, pleaded not guilty to the charge and denied all the allegations made against them. Their defence was that the Major had hired the taxi, which was being driven by Nachhittar Singh, and of which Sher Singh was the cleaner. They had gone to G.B. Road, where the Major had got himself drunk and did not pay their taxi-charges.

Narain Singh, petitioner, also pleaded not guilty to the charge and denied the allegations made against him. He stated that the case had been brought against him due to his enmity with Malik Ishar Dass, Prosecuting Sub-Inspector. He also added that he did not know Nachhittar Singh and Sher Singh. He stated that it was a fact that he refused to participate in the identification parade, because he had been shown to the Major. The accused produced two witnesses in defence.

The trial Magistrate, after consideration of the entire evidence, found the petitioners guilty and convicted them u/s 394/34, Indian Penal Code, and sentenced them to nine months'' rigorous imprisonment each.

On appeal, both the conviction and sentence of the petitioners were confirmed by the learned Additional Sessions Judge.

Shri Bipen Behari Lal learned counsel for Narain Singh, petitioner in the first instance, submitted that the statement of P.W. 9, Major B. Hanner, was inadmissible in evidence, because, after the charge was modified on 1st July, 1959 and the petitioners had expressed their intention of further cross-examination all the prosecution witnesses, this witness was not produced in Court for the same. For this purpose, he relied on the provisions of section 231 of the Code of Criminal Procedure. He further submitted that the evidence of this witness, given in Court before the charge was modified, could not be taken into consideration and relied upon for basing the conviction of the petitioners under the provisions of section 33 of the Indian Evidence Act, because it had not been proved in this case that the presence of this witness could not be obtained without an amount of unreasonable delay. For this submission, he relied on AIR 1946 1 (Privy Council) 1, wherein it was held-

When evidence given by a witness in a judicial proceeding is sought to be used u/s 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving evidence, that fact must be proved strictly. In a civil case, a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence.

On 2nd December, 1957 a charge u/s 394/34, Indian Penal Code, for committing robbery on 25th July 1957 in respect of Rs. 1,200/- only was framed against the petitioners. On third November 1958, P.W. 9, Major Hanner, was examined as well as cross-examined at length Later, on 1st July 1959 at the request of the prosecution, the charge was modified, so as to be of robbery u/s 394/34, Indian Penal Code, in respect of a wallet containing Rs. 1,200/-, a cigarette-case, and a gold ring, committed on the night between 23/24th July 1957. After the charge was modified, the petitioners expressed their intention u/s 231, Criminal Procedure Code, to further cross-examine all the prosecution witnesses, whose evidence had already been recorded before the charge was amended. Out of the prosecution witnesses, Major Hanner could not be made available for re-cross-examination, because, according to the prosecution, he was, on active service on the border and his presence could not be procured without unnecessary delay. His previous evidence therefore was taken into consideration u/s 33 of the Indian Evidence Act by the learned Magistrate, who, by his order dated 31st December 1959, convicted all the petitioners u/s 394/34, Indian Penal Code, and sentenced them to 9 months'' rigorous imprisonment each. On appeal, the learned Additional Sessions Judge, acting u/s 428, Criminal Procedure Code, vide his order dated 31st August, 1960 directed the trial Magistrate to call Major Hanner and permit his further cross examination by the petitioners. It was further ordered that if Major, Hanner could not be found or was incapable of giving evidence or his presence could not be obtained, then evidence to that effect might be recorded and the additional evidence so recorded should be certified to his Court by 22nd October, 1960. This date was later on extended to 14th December 1980 and then to 27th October, 1960(?). The presence of this witness could not be procured inspite of the best efforts put in by the trial Magistrate. He was served by means of summons and a wireless message was also sent to the Assam Regiment, where he was posted. But a telegram had been received from him, stating that since permission to leave station for giving evidence was not received, he was unable to attend the Court. Under these circumstances, the learned Magistrate examined the wireless-operator, who transmitted the wireless message, and the Ahlmad of the Court, who had despatched the summons and received the telegram sent by Major Hanner. Since it, was not possible to secure the attendance of Major Hanner, the trial, Magistrate certified the evidence so recorded to the learned Additional Sessions Judge. In this situation the learned Additional Sessions Judge was right in holding that the presence of this witness could not be obtained without unreasonable delay. Therefore, his previous evidence could be taken into consideration u/s 33 of the Indian Evidence Act. Besides, as mentioned above, this witness had, already been cross-examined at considerable length and the modification in the charge was not of any substantial nature. Therefore, the petitioners have not been prejudiced in any way, if Major Hanner could not be made available for further cross-examination. Learned counsel then submitted that the evidence of Major was not reliable, because he had suppressed the real purpose for which he had gone with Nachhitter Singh and Sher Singh to some hotel. It was not possible to believe he contended, that the Major would have gone only for food, because, if that had been his sole object, he could have gone to some restaurant or some good officers'' mess. He must have gone, according to the learned counsel for merrymaking, as alleged by Sher Singh and Nachhitter Singh, petitioners, I find from the statement of this witness that this question was put to him and he had denied that he visited any prostitute. Moreover, it has not been proved on the present record by any reliable evidence that he had actually gone to the house of any prostitute. Therefore, there is no reason to suppose that he had suppressed the purpose for which he had gone to the house of Narain Singh, Petitioner.

Learned Counsel next contended that the conviction of his client, Narain Singh, had been based by the learned Additional Sessions Judge mainly on two pieces of evidence-(1) the extra-judicial confession made by him on 28th February, 1957 before P.W. 3, Siri Ram, and P.W. 4. Amar Singh, (2) his identification by Major Hanner in Court.

As regards the extra-judicial confession, the learned counsel contended, that it was not a confession in the eye of law, but a self exculpatory statement. Moreover, it was difficult to believe that Narain Singh would go and make a confession before persons, who were not his friends and one of whom, namely Siri Ram, was not even known to him.

After hearing the counsel for the parties, I am of the view that the statement made by Narain Singh to the two witnesses, mentioned above, could not be called a confession. It is undisputed that when a conviction is going to be based on an oral confession, the accuracy of the statement made by the accused has to be seen and no reliance can be placed upon the same, unless the Court can say with certainty as to the exact words used by the accused. In the present case, this is what Narain Singh is alleged to have said to P.W. 3, Siri Ram-

Two fellow drivers brought to me a passenger bound for the airport. On the way, he was looted. The passenger was brought to my house by those drivers and he was given drinks in my house. He was taken in a taxi and was looted in the way. Watch, a purse and finger ring etc. were looted.

In this connection, P.W. Amar Singh, stated as follows-

Narain Singh told me that the Military Officer was given drink and was being taken to aerodrome. His purse and two other articles were snatched by the drivers and he was severely beaten by them. Narain Singh said that he was also in the taxi with the drivers and he said that he had committed a mistake and he begged for pardon.

It would be noticed from the two statements mentioned above that there is a material discrepancy therein. Narain Singh is alleged to have made this statement at the same time before both these witnesses. According to Siri Ram, Narain Singh did not mention that he was in the taxi, when the Major was beaten and robbed, whereas, according to Amar Singh, Narain Singh is alleged to have admitted that he was also in the taxi at that time and had said that he had committed a mistake and had begged for pardon. Besides, these statements do not amount to a confession of any guilt by Narain Singh. Nowhere had he admitted that he was guilty of any offence. On the other hand, his statement is a self-exculpatory one. In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), their Lordships of the Supreme Court held-

A confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.

It is also noteworthy that the relationship of Narain Singh with Siri Ram and Amar Singh, P.Ws., was not of such a nature that he would ordinarily go and confess his guilt before them. P.W. 3, Siri Ram, admitted that he did not know Narain Singh before he made the alleged confession to him. P.W. 4, Amar Singh, stated "Narain Singh is not of my brotherhood. There had been no business dealings between us, but I am acquainted with him. But I never dined with him. We do not know each other. We do not sit together. I have seen him going about, but there is nothing beyond that. We never had talk with each other". Under these circumstances, it would not be safe to base the conviction of Narain Singh on this piece of evidence.

Regarding the identification of Narain Sigh by Major Hanner in Court, learned counsel submitted that no reliance could be placed on the same, because there had been no test identification parade in jail. He submitted that Narain Singh had surrendered himself in Court on 2nd March, 1957. No identification parade was held during this period. On 11th March, 1957 he was bailed out. On 20th March, 1957 the bail was cancelled, because he was wanted by the police for investigation. He remained in police custody till 25th March, 1957, when he was again released on bail. The case was then adjourned to 4th April, 1957, again to 11th April, 1957, and then again to 15th May, 1957. On 14th May, 1957 the police put in an application that since the accused was coming to Court on 15th May, 1957, the next date fixed in the case, and Major Hanner had also arrived for that hearing, therefore, it would be desirable that the identification parade should be held on 15th May, 1957. Since the petitioner was not informed about this matter, he came to the Court at 10 O'clock on 10th May, 1957 and the Station House Officer, Malik Ishar Das, took him to the room of the Prosecuting Inspector, where Major Hanner was also sitting and the petitioner remained there for quite some time and was shown to the witnesses, who were to identify him. Under these circumstances, there was no point in getting him identified by Major Hanner. His client had put in an application to this effect on 15th May, 1957.

It is true that no identification parade could be held earlier, presumably, because Major Hanner was no available. As a matter of fact, Station House Officer, Malik Ishar Dass, P.W. 13, has stated in his cross-examination that the accused Narain Singh could not be got identified in any identification parade between 2nd March, 1957 and 13th March, 1957 as the complainant was on the front in Kashmir. It is significant to mention that all that Narain Singh had stated in his application dated 15th May, 1957 had not been put to the Station House Officer in cross-examination. If it had been a fact that Narain Singh was actually taken by Malik Ishar Dass to the room of the prosecuting Inspector, where Major Hanner was sitting and was shown to the complainant, all these allegations would have been put to the Station House Officer and he would have been cross-examined on this point. To me, it appears, that this was merely an afterthought on the part of the petitioner. He knew that he would be identified by the Major and, therefore, to avoid the test identification parade, he made this as an excuse. His refusal to participate in the identification parade, which was going to be arranged for him, goes very much against him and his identification by the Major in Court cannot be ruled out on the ground that no test identification parade was held. Under the law, it is undisputed that failure to hold an identification parade does not make inadmissible the evidence of identification in Court (vide Kanta Prashad Vs. Delhi Administration, ). But in the present case, the prosecution was prepared to hold the test identification parade and it was the petitioner who refused to participate in the same. In the instant case, according to the prosecution, the Major remained with the petitioner in his house, eating and drinking along with him for about 2/3 hours and, therefore, he had ample opportunity of seeing him. Under these circumstances, he was in a position to identify him in Court.

It was faintly suggested by the learned counsel that Major Hanner had identified the petitioner at the instance of Station House Officer, Malik Ishar Dass, with whom the petitioner had some enmity. In the first place, the alleged enmity has not been established on the record and, secondly, it is difficult to believe that a responsible officer like Major Hanner would falsely implicate the petitioner, with whom he had no enmity, in a serious offence of this nature, merely at the instance of the investigation officer.

Learned counsel then contended that it would not be safe, in the present case, to base the conviction on the identification of a single Witness, namely, the complainant. I, however, feel that the complainant, being a responsible officer in the Army and who had ample opportunity of seeing the petitioner from close quarters and for a sufficiently long period, could not make any mistake in identifying the petitioner. Besides, it has not been proved on the record that he was, in any way, inimically disposed towards the petitioner.

I was taken through the evidence of Major Hanner and. I see no reason to disbelieve him. The presence of the injuries on his person also supports the version given by him. I may mention that the learned counsel brought to my notice the fact that in the first information report the Major had mentioned that another Sikh (referring to the petitioner) joined them (Nachhitter Singh and Sher Singh) and they took him to a deserted road. He submitted that if the petitioner was that "another Sikh", then the Major could have easily said that the petitioner had joined them. This question was put to the Major in cross-examination and he replied as follows-

It is a matter of expressing in individual's English and I happened to be having this form of brief writing. Therefore, I wrote out in these words...

The explanation is quite plausible. Besides, all the detailed facts were not given in the first information report. Also, one cannot ignore the fact that the Major must have been greatly upset at the whole incident and his immediate object was to report the matter to the police, so that the accused might be apprehended. Under all these circumstances, it would, in my opinion, be quite safe to base his conviction on the identification made by Major Hanner. As a result, his petition (Criminal Revision No. 63-D of 1961) fails and is dismissed.

As regards the revision petition filed by Sher Singh and Nachhitter Singh, their learned counsel submitted that their conviction could not be sustained, because (a) there was delay in the lodging of the first information report, (b) the driver of the motor rickshaw, which happened to pass near the place of occurrence and in which the Major came to the police station, had not been produced by the prosecution, (c) no recovery of the articles was made from the petitioners, and (d) the evidence of Major Hanner was unreliable.

After hearing the counsel for the parties, I find that there is no substance in any of these contentions. The occurrence had taken place between 10 and 11 P.M. and the first information report was lodged at about 1 A.M. Thus, the same was lodged within about two hours. There has been no delay in the filing of the same, especially, when we take into consideration the fact that the Major had hidden himself behind the bushes and came out only when the petitioners had run away from that place. Sometime must have been spent in waiting for the conveyance and the moment he got the motor-rickshaw, he went to the police-station. It was needless to produce the driver of the same, because he was not a material witness inasmuch as he was not an eyewitness of the occurrence. It is also possible that the Major may not have noted the number of the rickshaw, which he could give to the police. As regards the recovery of the articles, namely, Rs. 1,200/- in cash, a ring and a cigarette-case, much point cannot be made about the same, because all these are things which could have been easily disposed of by the petitioners. All the three petitioners were not arrested immediately after the occurrence. Nachhitter Singh was arrested soon after the occurrence, Sher Singh at about 4 P.M. on the next day, while Narain Singh surrendered himself in Court on 2nd March, 1957. Sher Singh and Narain Singh had ample opportunity to dispose of these articles. With regard to the reliability of the evidence of Major Hanner, I have already held, while discussing the case of Narain Singh, petitioner, that there was absolutely no reason to disbelieve him. Both these petitioners admit that their taxi was hired by the Major. They were arrested soon after the occurrence. Both of them were identified by the Major in an identification parade on 26th February, 1957. The defence taken by them seems to be quite frivolous. It is difficult to believe that the taxi-fare was not given by the Major and they came back quietly and did nothing afterwards. Under all these circumstances, I am of the view that they had been rightly convicted by the Courts below. Their revision petition (Criminal Revision No. 71-D/1961) is, consequently, dismissed.

All the three petitioners have been awarded 9 months'' rigorous imprisonment each. Taking into consideration all the circumstances of the case and especially the fact that the occurrence took place more than four years back, and the trial of this case took a sufficiently long time, I feel that the sentence of 9 months'' rigorous imprisonment, already awarded, will amply meet the ends of justice. As a result, no action is called for in Criminal Revision No. 90-D of 1961.