1. These three appeals have been taken up together because they are concerned with the same incident. There are eleven respondents in Government Appeal No. 11. It arises out of Sessions Case No. 136 of 1957 in which they were all acquitted of charges under section 399 of the Penal Code for having made preparations to commit a dacoity and under section 402 for assembling for the purpose of committing a dacoity. Dhanpat Chamar one of those respondents, is the only respondent in Government Appeal No. 9. This appeal is directed against Dhanpat's acquittal in Sessions Case No. 105 of 1957 in which he was charged for offences under sections 19(f) and 20 of the Indian Arms Act for having been found to be in possession of one D.B.B.L gun in working order and four live cartridges. Brahmadeo Mandal, the only respondent in Government Appeal No. 10, is also one of the respondents in Government Appeal No. 11. In Sessions Case No. 106 of 1957, he was charged under sections 19(f) and 20 of the Arms Act for possession of a country-made shot gun in working order and four live cartridges. Government Appeal No. 10 has been filed against his acquittal in that case.

2. (His Lordship after narrating the facts above summarised, proceeded).

3. The defence of a respondent Sibu Mandal or Sibu Gangota is that he was arrested at about 9.30 P.M near the Clock Tower in Bhagalpur town. The defence of respondents Dhanpat, Wokil Singh, Ram Lakhan Tanti, Suraj Narain Tanti, Kishun Tanti, Chunchun Rabidas, Singheshwar Chamar and Chamru Pasi is that they were arrested at different places at different times varying from 5 to 7 P.M Respondents Brahmadeo and Sukhdeo have not given the time of their arrest. The principles which have to be kept in view in appeals against acquittal are well-known and well-established. While this Court can review the evidence for itself in such an appeal, it is extremely reluctant to interfere with a judgment of acquittal. I cannot do better than to quote the words of S.K Das, J. in Balbir Singh v. State of Punjab (S) AIR 1957 SC 216:

“It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must by given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to conclusion different from that of the trial judge.”

4. The learned Additional Standing Counsel and Mr. Prem Shankar Sahay, who has appeared before me on behalf of the respondents, have painstakingly, taken me through the entire evidence and the judgments in the three cases, and I have carefully perused them, keeping in view the principles laid clown by the Supreme Court. The conclusion witch I have reached is that there had been a failure of justice in this case because the learned Assistant Sessions Judge, who tried all the three cases, got so engrossed with trifles that he failed to consider the evidence from broad aspects. Although be had to hold that “the raiding party that was organised by the D.S.P did go to the Pir Asthan and arrested some dacoits”, he referred to some minor discrepancies and some improbabilities in order to hold that the prosecution case had not been established.

5. In the words of Mahajan, J. in Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31, “he made no effort to disengage the truth from the falsehood and to sift the grain from the chaff but took an easy course and after holding the evidence discrepant held that the whole case was untrue.” Indeed, I do not think that any part of the evidence which has been adduced in this case on behalf of the prosecution can be held to be false. There are discrepancies in the evidence, but when they are considered in the background of the fact that the whole incident took place in the darkness of the night when the members of the raiding party must have been highly excited and when it is remembered that the memory and faculty of observation of different witnesses cannot be alike, the discrepancies cannot but he held to be immaterial. The improbabilities mentioned by the Assistant Sessions Judge are based upon conjectures.

6. I will now proceed to consider each case separately, and will first take up Government Appeal No. 11 which is the main case.

7. Government Appeal No. 11 — (After going through the facts his Lordship proceeded:)

8. Finding as the learned Assistant Sessions Judge did that the Deputy Superintendent formed a raiding party, which went to Pir Asthan, and that members of that party arrested some dacoits and seized some articles, including two guns and cartridges, I do not think that any part of the prosecution case remained for him to doubt or disbelieve. The points taken by him for holding that the prosecution case has not been established may be summarised as follows in the order of importance which he seems to have attached to them.

1. Some reflected light from petromax lanterns in the Ganja fields and electric lights from the Jails must have made it possible for the miscreants assembled at Pir Asthan to see the movement of man, and members of the raiding party must have made sounds which they could have heard. Hence, the respondents must have tied away like four of their companions or at least, they must have thrown away the incriminating articles from their possession.

2. Pir Asthan is not a safe place where dacoits could be expected to have assembled.

3. The evidence that members of the raiding party went to Pir Asthan in a semi circular formation is so discrepant that it cannot, be accepted.

4. The identity of the respondents with the exception of Dhanpat and Brahmadeo as those who were arrested at the alleged place of occurrence has not been satisfactorily established.

5. Witnesses have given discrepant evidence on the question whether there was a chase of the four persons who managed to flee away.

6. The prosecution has not established conspiracy to commit dacoity. Non-examination of the spy damages the prosecution case because his evidence would have thrown light on the point of conspiracy.

9. I propose to discuss each of these points separately. (His Lordship discussed points 1, 2 and 3 and in the course of discussion of point 4, proceeded as follows):—

Prayer was made before the Magistrate on behalf of Sibu Gangota on 25-4-1957, that should be put upon a test identification parade; but the Magistrate rejected the prayer. Sibu than filed an application for revision before the Sessions Judge who, by his order (Ex. A), dated the 26th June, 1957, dismissed the application buff observed that there was no bar to the Magistrate: directing a test identification parade to be held. The learned Assistant Sessions Judge has referred to these facts, and has said that, as no test identification cation parade was held, the evidence of identification is very unsatisfactory. Mr. Prem Shankar Sahay has referred, in support of this view, to the decision of Choudhary, J., in Awadh Singh v. State, 1954 BLJR 23 : (AIR 1954 Pat 483). His Lordship has stated that the accused may or may not have a legal right to claim that they should be put upon test identification parade, but, as a rule of prudence, they should be put upon such a parade if they assert definitely that they are not known to the prosecution witnesses either by name or by face.

10. It seems to me that the Magistrates and police officers suffer from some confusion on the question of holding a test identification parade. If the witnesses do not give the name of any accused they rightly think that it is necessary to hold a test identification parade, and a parade is almost invariably held. Where, however, a witness gives the name of an accused as one whom he has identified, they think that no test identification parade is at all necessary. That is ordinarily correct; but, if any accused holds out a challenge and says that he will not be identified by the witnesses. Or makes a prayer that he should be put upon a test identification parade, such a parade must always be held in order to meet the challenge.

11. If it is not held, there will always be a doubt in the mind of the Judge or the trying Magistrate that, possibly, the witnesses may not have been able to identify the accused, if a parade had been held. This will mean failure of the prosecution case. From this point of view, I entirely agree with the principle laid down by Choudhary, J. There must, however, be one exception, if the accused is arrested on the spot and if he is in custody from that time up to the date of his trial, there can be no question at all about his identity. If a parade is held, it will be only a test of the memory of the witness or witnesses concerned. It cannot possibly be a factor of any importance on the question of identification because the respondents all the time remained in jail. The decision in Awadh Singh's case, 1954 BLJR 23 : (AIR 1954 Pat 483), cannot, therefore, have any application to the facts of the present case.

12. In my judgment, the learned Assistant Sessions Judge was wholly wrong in thinking that he evidence of identification against Sibu Gangota is unsatisfactory. He may well have put the question to himself as to how Sibu Gangota came be in the prisoners' dock if he was not one those who had been arrested on the spot. Besides, as I have already said, there is the evidence of identification by face against all the respondents by members of the raiding party who have been examined as witnesses. The mere fact that they were unable to identify Sibu by name is not a matter of any significance. I hold that the identity of the respondents as those who were arrested at the Pir Asthan has been established beyond any reasonable doubt.

13. The Assistant Sessions Judge has made some comment even about the identity of the guns (Exts. I and VI). But that is based mainly upon the fact that the slips which were pasted to them by the Deputy Superintendent were missing. I do not think that he could legitimately reject the identification of the two guns by P.Ws 1, 2, 3, 4, 5, 9 and 11 merely because the slips were lost,. especially when the D.B.B.L gun, at least, bore the number which I have already mentioned.

14. Point No. 5:— (His Lordship discussed this point).

15. Point No. 6: The Assistant Sessions Judge has said that the prosecution case is that the police officers stayed at Pir Asthan until about 1.30 or 2 A.M, and that Court witness No. 1 gives a direct lie to this case by saying that he and members of the police party left the place of occurrence within half an hour of his arrival. He has observed that the evidence of the Court witness ‘supports the defence version that when the dacoits fled away the police party spread itself in the town at about 10 P.M, and made indiscriminate arrests’. In my opinion, such an observation is not only unreasonable but completely unjustified. As I have mentioned earlier, only one accused says that he was arrested at 9-30 P.M None of the-others has stated that he was arrested at that time or later. The learned Judge should not have allowed himself to be so credulous as to believe that members of the police force had gone mad and had started making indiscriminate arrests of innocent persons without any rhyme or reason.

16. In suggesting that the spy should have been examined, the Assistant Sessions Judge has ignored the provisions of Section 125 of the Evidence Act which provides that no Magistrate or police officer would be compelled to disclose the source of any information as to the commission of an offence. The Deputy Superintendent (P.W 1) has said that he could not disclose the name of his source. There is serious danger in such disclosure. The spy may be made the target of revenge, and, at the very least, his usefulness will come to an end as soon as his name is given out. It is clear, therefore, that the examination of the spy was neither necessary nor desirable.

17. It is perfectly true that the prosecution must establish, in a case of this kind, that, the accused had conceived design for committing dacoity; but it is equally true that the intention of an individual or a number of individuals who have conspired together is seldom known to others, and can only be established by proof of circumstances from which the intention can be inferred. Witnesses cannot give direct evidence as to the intention of the accused; and, if the legitimate inference from the circumstances which are established is that the intention of the accused was to commit dacoity, it is for them to prove that their intention was different. Illustration (a) of Section 106 of the Evidence Act makes this quite clear. Reliance may be placed in this connection upon Jain Lal v. King-Emperor*, AIR 1943 Pat 82, a case to which I will again have to make reference.

18. Let us consider the circumstances which appear against the respondents in this case. (His Lordship considered these circumstances).

19. In my opinion, the circumstances which I have mentioned above lead, in the absence of a probable explanation from the respondents, inevitably to the conclusion that the respondents had formed a design for committing dacoity. The learned Assistant Sessions Judge appears to have thought that it was necessary for the prosecution to prove that the respondents' intention was to commit dacoity in the house of Govind Mandal of village Gopalpur. In my view, that was not it all necessary. The Deputy Superintendent has mentioned what he heard from his spy merely to explain why he formed a raiding party and went to Pir Asthan.

20. The information which he received from the spy is not admissible in evidence at all as it is hearsay evidence. The respondents, their companions and the spy knew where the dacoity was to take place. The spy could not allow his name to be disclosed, and the respondents and their companions could not be expected to give evidence on the point. It seems to me that law does not require that assemblage or preparation must be proved to have been made for the purpose of committing dacoity at a particular place. The legal requirements would be satisfied if it is proved that the assemblage or preparation was made for the purpose of committing a dacoity, irrespective of the place where it was to be committed.

21. As I have already held that it has been established that the respondents and their companions had conceived the design or, in other words had planned to commit a dacoity, the question which has to be considered is what offence or offences the respondents have been proved to have committed. Dacoity is perhaps the only offence which the legislature has made punishable at four stages. When five or more persons assemble for the purpose of committing a dacoity, each of the is punishable under S. 402 of the Penal Code nearly on the ground of joining the assembly. Another stage is that of preparation, and, it any one makes preparation to commit a dacoity, he is punishable under S. 399. The definition of ‘dacoity’ in S. 391 of the Penal Code shows that the other two stages, namely, the stage of attempting to commit, and the stage of actual commission of, robbery, have been treated alike, end come within the definition.

22. I am concerned in this case with the offences under Ss. 399 and 402 because the respondents were charged with those offences. There is manifestly a distinction between these two offences. The offence under S. 402 is complete as soon as five or more persons assemble together for the purpose of committing a dacoity. Preparation for committing a dacoity may take place before or after the dacoits assemble together. I may usefully quote the observations of Varma, J., in Jain Lal's ease, AIR 1943 Pat 82, as follows:

“Preparation consists in devising or arranging means necessary for the commission of an offence, an attempt is the direct movement towards the commission after preparations are made ……From the wordings of the two sections, 399 and 402, Penal Code, it is clear that the Legislature wanted to draw a distinction between preparation for a dacoity and assembling for purpose of committing dacoity. It is not difficult to give illustration in which there may be preparation for dacoity without any assembling. For example, five persons in their respective villages are asked by a person to make preparations, one by purchasing guns, another by getting torches, third buying masks and the fourth by buying gunpowder, and the fifth by collecting lathis, each with the intention of committing dacoity. Each on of them will be guilty of preparation for dacoity.”

In view of the findings which I have arrived at there can be no doubt at all that the respondent had assembled at Pir Asthan for committing dacoity. They are, therefore, clearly guilty under S. 402. On the question as to whether they car be held to have made any preparation for committing dacoity, there are several facts which mus be considered. Firstly, they had all come to a place several miles away from their houses. Secondly, they had provided themselves with we; pons of offence and defence as well as torches and implements for house-breaking. Thirdly, the were sitting together at a time when the usual time for committing dacoity was only, an hour two later.

23. In my judgment, these facts are sufficient to establish that they had made preparation to commit a dacoity. If they had actually arrived at the house where they intended to commit the dacoity, they would have been liable for actually committing dacoity even if their act did not go beyond an attempt to commit that offence. My conclusion therefore, is that the respondents are also guilt under S. 399. This conclusion receives supports from a decision of Shadi Lal, J., in Karmun v. Emperor, AIR 1916 Lah 334, in which the circumstances were similar to those of the present case. The facts in Jain Lal's case were also similar. I may, however, mention that, while there was evidence in that case that the accused persons were making enquiries as to who were moneyed me in the neighbourhood, no weapon at all was found in the possession of the accused persons. It was held by a Division Bench of this Court that the offence under S. 399 had been established.

24. For the reasons given above, I allow Government Appeal No. 11 of 1958, and convict all the respondents under Ss. 399 and 402 of the Penal Code. I sentence each of them under each section to undergo rigorous imprisonment for five years. The sentences will run concurrently.

25. Government Appeal No. 9:— The fact alleged in this case are the same as those Government Appeal No. 11. (His Lordship went through them and proceeded):—

The learned Assistant Sessions Judge has acquitted the respondent, and the grounds to which he seems to have attached importance for the purposes of arriving at his finding of acquittal are as follows:

1. All the witnesses who have been examined including Ram Prasad Mandal (P.W 2), are partisan witnesses, and their evidence cannot be accepted in the absence of corroboration by ind pendent witnesses.

2. The respondent and his companions mus have seen and heard members of the raiding part coming close to them, and they must have fled or at least, thrown away the incriminating article from their possession. The story of their arrest at Pir Asthan is therefore, doubtful.

3. Search of persons is regulated by Section 51 of the Cr PC, and no search witnesses are necessary; but, if search witnesses are present, they must be reliable.

26. I proceed now to discuss these points. Point No. 1. (On this point his Lordship after some observations proceeded):—

There is no rule of law or prudence to the effect that the evidence of a partisan witness cannot be accepted without corroboration by independent witnesses. If there had been any such rule, many offences would go unpunished. For instance, A and B are on inimical terms. A and his friends attack B and members of his family in their own house at night. No witness except B and members of his family can be available to prove the prosecution case. If their evidence must be rejected on the ground that they are partisan or interested witnesses, the prosecution case can never be held to be proved.

27. The true rule of prudence is that, if witnesses are found to be partisan or interested, their evidence must be scrutinised with caution, and unless it is found to be reliable alter such scrutiny, it should not be accepted. The learned Judge does not appear to have made any attempt to scrutinise the evidence and to “sift the grain from the chaff”. He just took the “easy course” of rejecting the entire evidence simply because it was given by witnesses whom he called partisan witnesses.

28. Point No. 2. (On this his Lordship held against the views of the Sessions Judge).

29. Point No. 3. While I agree that Section 51 of the Cr PC, governs a case of personal search and no search witnesses are legally necessary, I do not agree that, if there is a search witness; the entire evidence relating to search must be discarded if he is found to be unreliable. If a search witness is found to be unreliable, his evidence can be ignored, and the evidence of the police officers concerned may be looked into. The prosecution case relating to the search can only be discarded if the evidence of these witnesses is also found to be unreliable.

30. I may further mention that I do not agree with the learned Judge that Ram Prasad Mandal (P.W 2), who was one of the search witnesses, is unreliable simply because he owns some ganja fields. He appears to be a man of substance, and, there being nothing to show that he has any grudge against the respondent, there is no reason for him to have given false evidence.

31. In view of the facts mentioned above there is no substance even in this point which has been taken by the Assistant Sessions Judge. In my judgment the prosecution evidence is wholly reliable. I have not the slightest doubt in my mind that the gun (Ex. I) in working order and the live cartridges (Exs. V to V-3) were recovered from the respondent's possession, as alleged by the prosecution. It is not even suggested on his behalf that he had a licence to hold the arms and ammunitions which he possessed.

32. It is also clear that he was concealing the anus and ammunitions in such a manner as to indicate an intention that his possession of them may not be known to a public servant. He is, therefore, guilty under sections 19(f) and 20 of the Indian Arms Act. Mr. Prem Shanker Sahay has frankly admitted that, if the prosecution case on facts is found to be true, the respondent is guilty under these two sections. I therefore, convict the respondent under sections 19(f) and 20 of the Arms Act, and sentence him to undergo rigorous imprisonment for two years under each section. These sentences will run concurrently; but the sentence imposed in this appeal will be in addition to, and will run consecutively with the sentence imposed upon this respondent in Government Appeal No. 11.

33. Government Appeal No. 10. (His Lordship discussed the evidence and proceeded):—

In my opinion none of the points has any substance.

34. I have carefully gone through the evidence of all the witnesses and the documents, and I am perfectly satisfied that the respondents and his companions were arrested at Pir Asthan at the time alleged by the prosecution, and that the gun and cartridges were recovered from the respondent, as stated by the members of the raiding party who have been examined as witnesses in this case. He must also be held to have concealed the gun and cartridges in such a manner as to indicate an intention that his act may not be known to any public servant. As I have stated while dealing with Government Appeal No. 9, Mr. Prem Shanker Sahay has frankly admitted in this case also that the respondent is liable under sections 19(f) and 20 of the Indian Arms Act, if the prosecution case on facts is held to be true.

35. I, therefore, convict respondent Brahmadeo Mandal under sections 19(f) and 20 of the Indian Arms Act, and sentence him to upndergo rigorous imprisonment for two years under each section.

36. These sentences will run concurrently; but the sentence imposed in this appeal will be in addition to, and will run consecutively with the sentence imposed upon this respondent in Government Appeal No. 11.

37. In the result, all the 3 appeals are allowed.

ID/R.G.D

38. Appeals allowed.