Braund, J.:— This is an appeal from the sentences and convictions of seven appellants by the Additional Sessions Judge of Etawah. The appellants were charged under section 436 of the Indian Penal Code and under rule 35, sub-rule 4 of the Defence of India Rules, read with section 149 of the Indian Penal Code. They were all, with the exception of appellant Munshi Singh, sentenced to seven years' rigorous imprisonment under section 436 of the Indian Penal Code, one year's rigorous imprisonment under section 147 of the Indian Penal Code and seven years' rigorous imprisonment under rule 35, sub-rule 4, Defence of India Rules and in conjunction with the last sentence the learned Additional Sessions Judge imposed a fine of Rs. 100. In the case of the appellant Munshi Singh the sentences under section 436 of the Indian Penal Code and under rule 35, sub-rule 4 of the Defence of India Rules are two years less. In the cases of Jagdish and Puttu Singh there are also sentences of whipping.

The case is known as the Basrehar Canal Kothi Burning Case. The facts may be shortly set out. It happened during the night of the 12th of September, 1942, at the tail end of the August disturbances at or shortly after midnight. There is a small canal inspection house at or near Basrehar village, which is occupied for the purpose of administering and guarding the canal and its appurtenances in that neighbourhood. Basrehar village is itself four miles from the nearest police station at Chaubia. On this particular night, we know that there were in the canal bungalow some five persons the bungalow mali, whose name was Ganesh, the mail runner called Basanta, a beldar or labourer called Parmu and two members of the patrol, Akbar Ali and Sami Ullah. They were asleep, Parmu and Basanta on the eastern verandah of the bungalow, Ganesh on the western verandah and Sami Ullah and Akbar Ali in the stables, which apparently served not only as stables but also as the quarters of the men of the patrol. These stables were in a short distance to the south-east of the bungalow and between the bungalow and the stables there was a small mango grove and a road.

At or shortly after midnight a party of men, variously described as between ten and twenty-five in number, attacked the place by breaking open the doors and eventually burnt a good deal of the contents and did damage which has been assessed at something like Rs. 1,800. In addition to this, a length of telegraph wire was dragged down from the telegraph poles near the bungalow and thrown down a well. Whoever may have done it, there is no doubt that this was a deliberately planned and executed raid on this particular piece of Government property.

It is in respect of this affair that the seven appellants have been, tried and sentenced. I should like to say at once that the learned Additional Sessions Judge appears from the record to have conducted the trial with fairness and with great care and it is right to say that, notwithstanding that my own view, does not wholly agree with his. The evidence against the appellants really goes by stages and corresponds with the events as they are set out in) the prosecution story. It is said that the assault on the canal bungalow had been planned at the instigation of the Congress agitators some days earlier. If the prosecution story of what happened is right, then on the 10th of September there was a meeting between the appellants Jagdish and Puttu Singh, together with another man who has avoided trial by absconding called Arjun Singh, at the house of the appellant Jagdish at Basrehar. This is said to have taken place at about 4 o'clock in the afternoon. It is suggested that Arjun Singh then came and upbraided Jagdish and Puttu Singh for having done very little towards helping the disturbances and in the sabotage of Government property then, going on. The prosecution has endeavoured to establish this meeting by the evidence of the two witnesses, namely, Chiddu, prosecution witness No. 27 and Mahadeo, prosecution witness No. 26.

Thereafter the next event is said to have been a meeting on the same day—which was a thursday—on a chabutra under a banyan tree in the village. At this meeting—assuming it took place—there are said to have been present all the appellants as well as one or two others, including Arjun Singh mentioned above and also two men—Bijai Singh and Brahmadin—who subsequently became approvers in the case. This meeting was again adjourned and they agreed to meet later that same evening in the house of the appellant, Nawab Singh, Two days later on Sunday night, no doubt as a result of what had been decided upon on Thursday, a party, including the appellants and the approvers, is said again to have assembled in Nawab Singh's house armed with the instruments of dacoity and it is from there that they are alleged to have set out for the assault on the canal bungalow.

There were, however, two incidents on the way. They first reached a village, Bankati, and there, if the evidence is to be believed, the appellant, Nawab Singh, was recognized and accosted by an inhabitant of the place called Bala Ram who happened to be at the door of his cow-shed. This Bala Ram has given evidence of seeing, and speaking to, the appellant Nawab Singh, also of the fact that there were a number of other people with Nawab Singh in the background, although owing to the darkness of the night he does not claim to have seen them actually or to have recognized them. He merely heard them. That evidence is intended to prove the sequence of events which took place as the expedition proceeded.

The next incident took place when they reached a maize field belonging to the appellant Jagdish. There they are said to have fallen in with a certain Chiddu, who had gone there from the village to have a quiet smoke. It may perhaps be added that Chiddu was himself subsequently arrested as having taken part in the affair, but he was ultimately released after some four months' detention. Chiddu's story is that the party or rather the number of small parties into which they had split up—arrived at this field at about 10 p.m at night and be (Chiddu) was told to go and scout round the canal bungalow to see if the Chaukidar was awake. This he apparently did, and after reporting on the first occasion that the chaukidar was still awake he subsequently Drought the information that, after the manner of chaukidars, he had gone to sleep. Chiddu was then sent to fetch an axe which he duly did and then the story goes that the party proceeded and—assuming always that Chiddu has spoken the truth—he was pressed to accompany them but he got out of it on the ground that he had sprained his leg.

That having happened at the maize field, the party proceeded for the final assault on the canal bungalow, but before they reached it they climbed at least one telegraph pole, tore down the telegraph wire and by some primitive means of using an axe seem to have succeeded in Cutting it and throwing it down an adjacent well. They then went on to the canal bungalow itself. So far as what actually happened is concerned, it need not be set out at any length. They burst into the kothi and did a good deal of damage and in the end set fire to the contents. What, however, is important is that it was at this point that the next—and the main—group of evidence comes on the scene in the form of the five men, whose names I have given above, who were asleep either on the verandahs of the bungalow or in the stables.

The evidence, therefore, upto this point falls into three groups—first of what happened on the 10th of September; next of what happened on the way to the canal bungalow; and thirdly the evidence of the occupants of the bungalow itself. But the matter goes beyond that, because the prosecution has produced two approvers, Bijai Singh and the other a man named Brahmadin. Practically the whole of the defence was concentrated at the trial, in both cross examination and argument, on destroying the evidence of these two approvers; and conversely, I think I am doing the learned Additional Sessions Judge no injustice if I say that in the long run he accepted the evidence of the approvers, and that it governed his judgment. In this appeal moreover the attack—or at least the main attack—has again been concentrated on these two approvers, since, if their evidence is not discarded, these convictions would obviously have to stand. I must, therefore, deal with the evidence of the two approvers with some little care.

If the evidence of the two approvers, Bijai Singh and Brahmadin, is to be judged by the volume of suggestion and innuendo directed against them by the cross-examination of the defence, then it can be of very little value. But there are, to my mind, more substantial reasons in this case why the evidence of these two approvers has to be considered with the greatest care and I must first set out certain further facts and dates relating to the course of the investigation itself.

The incident took place on the night of the 12th of September, 1942. A very short report was made at the Chaubia police station at 3.45 a.m on the same morning, that is to say, in the early hours of the 13th of September. It was a purely formal report lodged by the chaukidar of the village, and contained little or no detail. On the same day the investigation was begun by the second officer of the Chaubia police station, who naturally enough, began by examining the occupants of the canal bungalow. On the 14th of September, the investigating officer apparently got to know something about the appellants Puttu Singh and Jagdish; but it was not till the 18th of December—three months later—that any one was arrested. The first person to be arrested was the approver, Bijai Singh. He was taken into custody at the village called Nagla Chhati in the same police circle as Chaubia. Now the fact is that from the 18th of December, 1942, until the 4th of January, 1943, a period of sixteen or seventeen days—the approver Bijai Singh was kept in custody at the police station and was not sent to jail. I shall explain how that came about in a moment. On the 4th of January, 1943, he was sent to prison and on the 8th of January—four days later—he offered a confession which was duly recorded before a magistrate. The circumstances in which this protracted detention of Bijai Singh in the police station came about were these. He was arrested, as I have said, on the 18th of December, 1942; and there can be no possible doubt that his arrest was in respect of an offence under the Indian Penal Code. It is true that there was added to it a charge under rule 35 of the Defence of India Rules—that is to say, the rule dealing with sabotage—but the fact remains that the substantial matter for which Bijai Singh was arrested was the charge under section 436 of the Indian Penal Code of committing mischief by fire in relation to the attack on the canal bungalow. It is very important for the purpose of getting a clear view of this matter to appreciate the fact that he was taken into custody—was in fact held in custody — form the 18th of December onwards on a charge (at that time not fully investigated) under the Indian Penal Code. This view is, I think, fully confirmed from Ex. P-83 at page 27 of the record before me which is the report of the policeman, who arrested Bijai Singh “in the case, criminal No. 66, under section 436 of the Indian Penal Code and rule 35 of the Defence of India Rules…”. It goes on, to relate how that arrest was effected. For the next four days he was held in the police station, and, as far as I know, nothing happened. None of the usual steps under section 167 of the Criminal Procedure Code appear to have been taken; but instead what seems to have been done was that Bijai Singh's arrest on the several changes on which he was apprehended was quietly converted into detention in police custody under rule 129 of the Defence of India Rules. In short, the police, having taken the man into custody under the Criminal Procedure Code, then proceeded automatically to hold him in custody under rule 129 of “the Defence of India Rules. That was the position up till the 22nd of December. The police then appear to have applied for, and obtained, an order from the District Magistrate under proviso (1) to sub-rule (2) of rule 129 extending the period of “detention” from fifteen days “until further orders”. It would be interesting to know what reasons were given to the District Magistrate for this. In the result, therefore, Bijai Singh, having been arrested for an offence under section 436 of the Indian Penal Code and having been brought into custody, as it seems to me, under the provisions of the Code of Criminal Procedure, then automatically (and probably unknown even to himself) had the character of his confinement changed, first by the police and then by the District Magistrate, from detention under the Code of Criminal Procedure to detention under rule 129 of the Defence of India Rules—and this over the period of the most active investigation of this crime, and almost immediately preceding the presentation to the authorities of his confession on the 8th of January. So much for Bijai Singh.

The facts as regards Brahmadin are somewhat different. He was arrested on the 17th of January in the forenoon and was again, as I understand, kept in custody in the police station until the 19th of January, when an order was also made for his detention under rule 129 of the Defence of India Rules. However, he was actually sent to prison on the following day (die 20th of January) and his confession was forthcoming on the 22nd of January. It is difficult to see why in his case the formality of detaining him at all under rule 129 of the Defence of India Rules was resorted to, seeing that he was already in custody and was in fact sent to prison on the following day. The not unnatural suggestion of the defence is that, in his case, it took a shorter time in police custody to get him to make up his mind to confess, and that, therefore, it turned out to be unnecessary for the police to hold him in detention under the Defence of India Rules for so long a period as in the case of Bijai Singh.

Those are the facts and I should desire, before proceeding any further, to refer to two recent cases, one from Lahore, and the other from Nagpur, which bear upon the improper use of rule 129 of the Defence of India Rules in relation to criminal proceedings. In S. Dilbagh Singh v. Emperor(1), the learned Chief Justice and another Judge of the High Court of the Punjab in dealing with rule 129 of the Defence of India Rules and the powers on the police to arrest, and hold in arrest under it without a warrant, expressed the view that rule 129 was framed for the purpose of enabling persons who were reasonably suspected of being dangerous to be detained without the necessity of the formal procedure under the Criminal Procedure Code. But these learned Judges did not think that the rule was ever intended to cover the case of a person who, even if he might have committed some past prejudicial act, could be no longer regarded as a potential danger either to the State or to the prosecution of the war. The learned Chef Justice observed that, in his view, rule 129 of the Defence of India Rules had to be read in the light of section 2, sub-sections (1) and (2) of the Defence of India Act and that, on doing that, it became clear that detention under rule 129 could only be justified when a person's continuance at liberty became dangerous. Reverting for a moment to the present circumstances, it is very difficult to see what justification there could be for invoking rule 1, 29, in the case of a person who, whatever he may have clone, was no longer even at liberty but had already been taken into custody under the provisions of the Criminal Procedure Code. One can appreciate that these are cases in which, for special reasons in war time, it is proper to ??? he authorities with arbitrary powers overriding the ordinary provisions of the Criminal Procedure Code. But it is to my mind, impossible to construe rule 129 of the Defence of India Rules as justifying the police, in effect, in taking a person, who is already in their custody under the Criminal Procedure Code, out of that custody and placing him in detention under the Defence of India Rules pending, and for the purpose of, the investigation of the very crime for which he was originally apprehended. In the case referred to above, the learned Judges came to the conclusion that resort to rule 129 of the Defence of India Rules for the purpose of facilitating the investigation of a crime under the Criminal Procedure Code was an abuse of them.

In Nagpur in the still more recent case of Vimlabai Deshpande v. Emperor two learned Judges of that Court came to substantially the same conclusion. They agreed with the learned Chief Justice of the Punjab High Court and said: “If a police officer, for facility of carrying on an investigation unhampered and unrestricted, detains an accused person, or a witness supposed to be acquainted with the facts and circumstances of the case, under rule 129, Defence of India Rules, that would be an abuse of the power conferred under rule 129 …” And the learned Judges described it as a fraud upon the Act. With respect, I agree. In the present case, so far as Bijai Singh is concerned, as I have said more than once, he was taken into custody under the Criminal Procedure Code. Even assuming that the attack on the canal bungalow was a prejudicial act, as no doubt it “was, once Bijai Singh was in arrest under the Criminal Procedure Code, it seems to me that there could by no stretch of imagination be any longer any bona fide reason for setting in motion the machinery of rule 129 of the Defence of India Rules. Nevertheless, by quietly resorting to that rule, the police and the District Magistrate were enabled to keep him in custody in the police station for a period of seventeen days. He was then sent to the prison, and almost immediately afterwards produced a confession. Apart altogether from the bitter attack that has been made on the confession on its merit, this to my mind is enough to discount the confession of Bijai Singh altogether. If there is one thing more than another that the Criminal Procedure Code seeks to safeguard, it is the immunity of potential witnesses and in particular, potential approvers, from police influence. I venture to express some slight surprise that the Magistrate of the first class, before whom the confession of this man was recorded four days later, did not, in view of section 164 of the Criminal Procedure Code, direct some special examination to the circumstances in which this confession was to be made. That observation would, of course, be unjust if the Magistrate in question was not aware of what had happened. It is right to say that it is nowhere shown that he was aware of it and I should not wish to do him any injustice.

For these reasons alone, in my judgment, the confession and evidence of Bijai Singh fails. Taking the whole of the circumstances together, I am not prepared to place the confession and evidence of Brahmadin on any different footing. It is true that the detention of Brahmadin in police custody under rule 129 of the Defence of India Rules was mucli shorter. My mind, nevertheless, is so unfavourably affected by what happened in the case of Bijai Singh that I should be reluctant to place the least reliance on the confession of Brahmadin either.

That, however, is not enough to dispose of altogether of this appeal since there is, as I have already pointed out, considerable further evidence, which is independent of the evidence of the approvers. I shall first deal briefly with that evidence which seeks to implicate the appellants before the point of time at which they began the actual attack on the canal bungalow. We will start with the evidence of the man, Jutwar Singh who says that he met a party of twelve or thirteen men led by the appellant Nawab Singh between 8 and 9 in the night going from the village towards the canal distributary. He then went on to name all the seven appellants together with Bijai Singh as among that party. I am not impressed with this man's evidence. To start with, he is the uncle of Bijai Singh. Secondly, the only person he claims to have spoken to is the appellant Nawab Singh. He was not examined till nearly three months later by the police, and there are curious things said by him in his evidence. Though he must inevitably have connected the party he had met in the evening (assuming it to be true that he did meet a party) with the burning of the canal bungalow, he says he did not tell anyone about it. He suggests that, when he met Nawab Singh with this considerable party of men, he did not think it worthwhile asking him what he was doing at that time of the night or where he was going. It never occurred to him as being curious; nor did he ask any of them what they had been doing that night, and he alleges that, “even after hearing of the burning of the kothi, there was no suspicion in my mind against Puttu Singh …”. This and similar statements leave me with a sense of uneasiness about Jutwar Singh's evidence. I observe too from the statement made by the appellant Nawab Singh that the learned Judge never put to this appellant any question whether he denied having met jutwar Singh on this night. The learned Judge did ask the accused a number of questions during their examination, and I think it would have been proper, to say the least of it, to have given at any rate Nawab Singh an opportunity of denying this most damaging piece of evidence against him. There is then the evidence of Balak Ram who claims to have met the same party a little later, although he only saw Nawab Singh. This again was never put to Nawab Singh at the trial. And I should, for myself, be unwilling to rely on this evidence. Chiddu has related the incident at the maize field. But he had an opportunity of telling the sub-inspector all about this on the 14th of September, and did not do so. This man was himself in custody for four months and then appeared at the sessions trial as a prosecution witness. He was at least under suspicion of having been concerned in the crime himself and one cannot avoid some suspicion that he may have adjusted his evidence to secure his own immunity from trial. It is on his evidence and also on that of Mahadeo that the first meeting between Puttu Singh, Jagdish and Arjun Singh rests. Upto this point none of this evidence would convince me that this case had been brought home beyond a reasonable doubt to the appellants.

We now come, however, to the evidence of the occupants of the canal bungalow itself and this evidence, to my mind, stands on an entirely different footing from all other evidence in the case. There is nothing as far as I can see to lead me to suspect that it has or might have been tampered with by the police. It is moreover, the most direct and the best evidence of what actually happened that there can be. Finally there is sufficient restraint about it to give it, in my view, a high decree of credibility. I do not propose to go through the detail of it at great length. The usual identification parades had been held and in the judgment that I have formed, the result of this case must ultimately rest on those identification parades and nothing else. Where those identification parades do satisfy the test of guilt I certainly should not look to any other evidence in the case; and conversely where the people who were in the best position to know what actually happened have given evidence of what they saw—and have given that evidence in a manner which entitles it to belief—then I should be disposed to believe it whatever the defects in the quality of the rest of the evidence in the case may be.

Judged by this test, I must allow this appeal at once in the case of the appellants, Jagdish and Suraj Prasad. Their convictions, rested on the evidence of the approvers and virtually on nothing else. They have been identified by none of the occupants of the canal bungalow, and in those circumstances in the view I have taken there is no evidence worth speaking of against them. The appeals of Jagdish and Suraj Prasad are accordingly allowed and they must be at once enlarged unless there is any other ground for detaining them.

The next group of appellants with which I propose to deal are the appellants Puttu Singh, Munshi Singh and Budhu Rai. These three appellants have each been identified by three of the occupants of the bungalow. In the case of Puttu Singh, he has been identified by Akbar Ali, one of the patrols who was sleeping in the stable, and he has also been identified by Ganesh and Parmu who were sleeping on the verandahs of the bungalow itself. As regards Munshi Singh, he has been identified by Sami Ullah, Akbar Ali and Basanta and in the case of Budhu Rai, he was recognized and has been identified by ??? Ganesh and Sami Ullah. There is, to my mind, little to be said against the evidence of these eye-witnesses. Most of them ran away to places in which they could hide themselves. One went behind the Dadonean hedge; Sami Ullah went into the little grove at the south-east corner of the bungalow and from these various places they peeped out. There was obviously enough light from the burning that was going on and I can find no flaw in the story told. It is quite true that their evidence has been attacked on the ground of various kinds of hostility, enmity and prejudice but in fact nothing has been shown which, to my mind, discredits their evidence. I have come to the conclusion that, notwithstanding the failure of the two approvers, the convictions of Puttu Singh, Munshi Singh and Budhu Rai must stand by virtue of the weight of the other evidence against them. This brings me to the last two who are the appellants Rangi Lal and Nawab Singh. On the test that I have adopted the only evidence remaining against them is the evidence of one witness in each case. In the case of Rangi Lal it is Sami Ullah and in the case of Nawab Singh it is Parmu. The learned judge in summing up his own judgment in respect of the appellant Rangi Lal has said at page 264 of the record that this appellant was identified by Sami Ullah alone, which is insufficient. He points out, moreover that it is possible that Sami Ullah might have known him and that, therefore, the identification by him would carry less force. Without wishing to lay it down that a man can never be convicted on the evidence of a single identifying eye-witness, I am not prepared in this case to differ from the view expressed by the learned Additional Sessions Judge, and I shall accordingly allow the appeal of the appellant Rangi Lal. For the same reasons I shall also allow the appeal of the appellant Nawab Singh. In his case also the learned Judge has found the evidence of one identifying witness to be insufficient.

The result of this appeal, therefore, is that the appeals of Jagdish, Rangi Lal, Suraj Prasad and Nawab Singh are allowed. The appeals of Puttu Singh, Munshi Singh and Budhu Rai will be dismissed. I have considered the question of sentence. The crime is a serious one and I cannot possibly say that the sentences of five to seven years' rigorous imprisonment imposed upon them by the learned Additional Sessions Judge is in any way improper. I do not propose, therefore, to interfere, in the matter of the sentences of those who remain convicted.

As regards the four appellants whose appeals have been allowed it is to say the least, unfortunate that well over a year should have elapsed before they have been able to have them heard. I understand that they have spent the whole of this term in prison.