Knox and Burkitt, JJ.:— The five appellants in this case have been convicted by the Sessions Court at Agra of an offence under section 402 of the Indian Penal Code, and sentenced each of them to seven years' rigorous imprisonment.
The learned counsel who appears for the appellants does not contest the facts of the case. He contends that even upon those facts as proved no offence is established under section 402, inasmuch as there is no evidence from which it can be inferred, either directly or indirectly, that the appellants, when arrested, were assembled for the purpose of committing dacoity.
Now what are the facts? The appellants were arrested at 11 p.m at night on the 26th of May, 1900. They were all of them heavily armed with guns and swords, and these guns and swords were concealed under their clothes; none of them had any license to carry arms. A further fact, of which we are bound judicially to take notice, is that at that period the district of Agra was notorious as the scene of frequent and recent dacoities Are the above facts, in the absence of any explanation given by the accused as to why they were assembled together at such a time and under such circumstances, sufficient to permit the inference being drawn that they were assembled for the purpose of committing a dacoity? The facts are certainly not inconsistent with the idea that a dacoity was about to be committed, and had there been evidence that at or about that time and in that vicinity a dacoity had been committed, all the facts above mentioned would have been relevant facts which would have gone far to establish a case of dacoity against the appellants.
It cannot be denied that the assembly of these men, under the circumstances established by the evidence, was of a nature to excite suspicion. The object for which they had assembled and for which they were carrying guns and swords concealed about their persons was a fact specially within their knowledge. The Crown alleged that the object for which they had assembled was the object of committing dacoity. If their object was an innocent or proper one, the explanation could have been given without difficulty. In the absence of any explanation we think that the existence of an intention to commit dacoity has been proved by the evidence given of the conduct of the accused, and the circumstances under which they were arrested from such conduct and circumstances we are entitle to infer as so probable the existence, of an intent to commit dacoity that a prudent man would act upon the supposition that such intention, did exist. The burden of proving the contrary would, in accordance with the provisions of section 106 of the Indian Evidence Act, rest upon the accused. In the view we take of this case we are supported by the precedents:— The Deputy Legal Remembrancer v. Karuna Baistobi , Balnakund Ram v. Ghansam Ram and Queen-Empress v. Papa Sani . We dismiss the appeal.