King-Emperor v. Annya

Candy J:-

Nine accused persons were placed before the Sessions Court. Nasik, on a charge of dacoity at Maheruni on 30th November last No. 1, Pandya and No. 9, Krishna pleaded guilty and were forthwith convicted on their own plea. They were then taken from the dock, and examined as witnesses. A question has been raised whether they were competent wit­nesses. I think that they were. They were no longer accused persons: they were convicts. No doubt if the accused is con­victed the Judge shall pass sentence on him according to law (section 309 (3))- but the trial is concluded. Sentence follows the trial, in the case of a conviction (of the remark of Edge, C. J. and Aikman, J. in Queen-Empress v. Pirbhu (1)). If the Sessions Judge had for any reasons refrained from accepting the plea of guilty, and the trial of these two men had pro­ceeded with that of their co-accused, their state­ments could have been taken into consideration. It would seem anomalous that when they were no longer co-accused their statements as witnesses would be inadmissible. But when we come to weigh the value of the evidence of such witnesses, the fact that they had not been sentenced is no doubt a matter for consideration. They might naturally think that it would be to their advantage to tell a story as much as possible in favour of the prosecution. Any how these two men were ac­complices. The Sessions Judge was of opinion that their deposi­tions were full, credible, and consistent both in themselves and with each other. 1 cannot concur with that opinion. These men told a story, which is prima facie improbable, about being forced to go with the dacoits, and not actually joining in the dacoity- and while Pandu pretended that he had asked for no share of the booty and had obtained none, Krishna deposed that Pandu had obtained a share just as he had.

Such a story told by accomplices requires independent cor­roboration.

As against the appellants, Ganu and Bhowani, there is none such. There is simply the confession of the accused Mukund to the Second Class Magistrate on 10th December, in which he mentioned .the Pimplad men, " but could give no names - and his confession to the committing Magistrate on 14th January, in which the only names are Bhoria and Bhowani. In both these confessions Mukunda told a story of having had fever and not actually joining in the dacoity. Then there is the confession of the accused Annya (the barber J before the Second Class Magistrate on 10th December, which was retract­ed before the committing Magistrate and in the Sessions Court. In this confession the names of Ganu and Bhowani appear. This is the only evidence against Ganu and Bhowani. No pro­perty said to have been part of the stolen property was found in their possession.

In the committing Magistrates Court there was apparent­ly certain evidence regarding some Pimplad Kolis who were named having been absent from their village " haziri " on the night of the dacoity, and of a report having been made of the fact, but in the Sessions Court the reference to this was very vague and no names were given. This evidence which might have been corroborative is thus absent.

I think that Ganu and Bhowani must be acquitted.

The accused Annya, the barber, made a confession and pro. Duced property. His conviction must be affirmed, but I agree with my learned colleague that we should reduce his sentence to the same as Bhorias.

The only other appellant is Hari. He is said to have volun­tarily produced several articles of property which were claimed as stolen in the dacoity, and yet he made no admission of guilt. His name was not mentioned by Mukunda and Annya in their confessions. I think that his conviction must be reversed.

Fulton J:-The first point for decision is whether the evidence of Pandya and Krishna was legally admissible against the appellants. They were put up for trial along with other accused on a charge of dacoity. They pleaded guilty and were at once convicted but their sentences were postponed till the end of the trial. In the interval they were examined as wit­nesses against the rest of the accused. I think that this procedure was illegal under the provisions of section 342, Criminal Procedure Code, which provides that no oath (see General Clauses Act, section 3 (36), shall be administered.

It was argued for the Crown that their trials concluded with their conviction and that the sentences did not form part of the trial. It was therefore contended on the authority of the decision in Empress v. Durant (1) that section 342 presented no bar to their examination as witnesses. It is unnecessary for the purposes of this case to question the correctness of this ruling and we may probably accept Mr. Justice Jardiries opinion that in section 342 the accused means a person over whom the Court is exercising jurisdiction. Mr. Justice Candy went further and said that .the accused " in section 342 must mean the accused then under trial and under examination by the Court. Admitting that this is the correct criterion it seems to me that these accused when solemnly affirmed as witnesses were still under trial and they were certainly under examination by the Court. The contention that the trial ends with the conviction and not with the sentence can hardly be maintained in India. Having regard to the arrangement of the Criminal Procedure Code, provision for the sentence is contained in sections 306 and 309 which are included in the portions of Chapter XX.1II that purports to deal with the conclusion of the trial. No authority was cited for the argument that the trial ends with the conviction. The argument seems to be inconsistent with the terms of Chapter XXIII and to be of too doubtful a character to justify us in sanctioning the introduc­tion of what I believe to be a totally new practice. In a matter of this kind where the wording of the Code appears to support the existing practice it would I think be inadmissible to vary it. The reasons why an accused person who has been convicted and is awaiting sentence should not be examined as a witness seem to me similar in kind, though different in degree, from those which prevent his being examined after the trial has begun and before a conviction or acquittal has been arrived at. It is evident that in many cases an accused person when awaiting sentence after conviction could not with any freedom give evidence as to the circumstances of the crime: and it does not appear to me desirable that he should be compelled to do so. However this may be I would base the rejection of the evidence of these witnesses on the express provisions of section 342.

Excluding their statements the evidence against Hari, Ganu and Bhowani seems insufficient to justify the convictions. This appears obvious in the case of Ganu and Bhowani. Hari produced articles A1 to F1 from the ashes of his grate. The circumstance may have been highly suspicious but as the articles can not be identified with certainty as having been stolen in this dacoity his conviction I think cannot be sustained. His name does not appear to have been mentioned in the con­fessions of either Mukunda or Anya.

Anya confessed before the Second Class Magistrate after producing articles I to T. The articles are not conclusively identified though some of them seem to have been positively claimed by Bala. Before the committing Magistrate, Anya retracted his confession. But I think the first confesion supported as it is by the production of property at once claimed by Bala establishes his guilt. His conviction I think must be maintained but there is no legal evidence to show that he was a leader. He was not named by Mukunda. His sentence I think should be reduced to three years rigorous imprisonment-the same as Bhorias.