Daniels and Neave, JJ.:— Eighteen men have been convicted by the Additional Sessions Judge of Moradabad under Bection 396 of the Indian Penal Code. Three of them, Abdul Wahab, alias Habbu Khan, Muhammad Saved Khan and Jamna Das have been sentenced to death. The rest have been sentenced to transportation for life. They all appeal.
On the night of the 9th of May, 1923, between 10 and 11 p.m the house belonging to Ram Sarup and Murli, alias Murlidhar, Bishnois, in the village of Fakhanpur was plundered by ducats. The gang found Murli and Ram Sarup sleeping just outside their house, and capturing them, made them lead them into the house and show where the money and valuables were kept. The gang first rifled an iron safe containing cash and ornaments of considerable value and then went on to plunder the house. They set fire to a quantity of straw in order to see what they were doing and also used two lanterns, one of which they had brought with them while the other they found hanging up in front of the house.
The noise and flames aroused the village and three parties of villagers attempted a rescue, approaching the house from the east, the west and the south sides. Ram Sarup and Murli succeeded in making their escape in the confusion caused among the dacoits by the necessity to repel these attacks, though not till after Murli had been roughly handled on account of his refusal to disclose the hiding place of the rest of his money.
The dacoits were well armed with guns and pistols which they used freely. Three villagers were killed outright and a fourth succumbed later to his wounds. Two others have been crippled for life. The medical evidence proves that all the injuries were caused by gunshots.
The dacoits also visited and plundered the house of Nirmal, ten paces away, and finally left the village at 1 or 2 a.m
The dacoits pretended to be Bhantus and Mr. Young, the Superintendent in charge of the special police employed in hunting the Bhantu gang which at the time was terrorizing the Tarai and neighbouring districts, took up the case. He deputed Bai Bahadur Tirath Singh, Deputy Superintendent of Police, to make inquiries. That officer, learning that the reason, for the selection of Ram Sarup as the victim of the dacoity was possibly the: extravagance with which he had recently celebrated the marriage of his daughter and the consequent reputation for wealth which he had acquired among his caste-fellows, asked sheoraj Singh, a Girdawar Kammgo, who is a Bishnoi by caste, to see what he could learn from Bishnois in the neighbourhood. At Surajnagar this officer heard that a quarrel had taken place between two men named Jamna Das and Jiraj over the division of the spoils taken in the Fakhanpur dacoity. Jamna Das is his connection by marriage, and by pretending to sympathize with him Sheoraj Singh extracted from him in the course of conversation an admission that he had taken part in the crime and also the names of a number of his accomplice.
The Kanungo reported what he had learnt on the 17th of May, and on the 7th of June, Jamna Das was arrested. Three days later Abdul Wahab and the appellants who had been named by Jamna Das were arrested. Meanwhile Sadua? had been talking about the dacoity in a way which showed that he had personal knowledge of it. Apparently he, too, had a grievance over the division of the spoils. He spoke to Harnam Singh, who is the samdhi of Ram Sarup, and in this way the information came to the ears of a constable named Lal Singh and on the 16th of July Sadua was arrested. On the 2nd of October he made a confession, which was recorded by a Magistrate under section 164 of the Code of Criminal Procedure. It is argued that the value of this confession must be discounted owing to the time which elapsed before it was made, but we find that no questions on this point were put to Sadua in cross-examination or to the police, and there does not appear to be any reason to suppose that the confession was inspired by the police or its materials supplied by them to Sadua. He has adhered to his confession throughout and has been made an approver. Cross-examination has failed to betray him into any contradictions or inconsistencies. His statement has been abundantly corroborated by the testimony of other witnesses. In addition to this the approver took a Magistrate over the scene of the dacoity and the route taken by the dacoits and produced a kathla which he said he had received as part of his share of the plunder. This kathla has been satisfactorily identified, and the Magistrate's evidence proves that Sadua was able to point out accurately where the various occurrences of the dacoity had taken place and in a manner that tallied exactly both with his own statement and with the evidence of the eye-witnesses. We agree with the learned Judge that the approver's statement may be relied on and is a valuable piece of evidence.
The accused were paraded for identification in the Haldwani jail. Owing to the scarcity of other under trial prisoners in that jail, outsiders were brought in and placed in the line with them. This procedure has been criticized, and it was no doubt unusual, but in the peculiar circumstances of the case no other course could have been adopted and the evidence of the Magistrate who conducted the parade shows that every possible precaution was taken to prevent unfairness. The witnesses were strangers to Haldwani and while outsiders were being collected and taken into the jail they were all kept under the Magistrate's eye near the police station. They thus had no opportunity of seeing them before the parade.
The evidence against the accused consists in the main of the identifications made at the jail by the eye-witnesses, of the statement of the approver and of the confession of Jamna Das. As is always the case, the most important evidence is that of the identifications. The learned Sessions Judge has considered this evidence carefully and where in his opinion it was insufficient he has given the accused the benefit of the doubt and acquitted them. In no instance has he accepted less than two identifications in the jail as adequate corroboration of the approver's evidence. There is, however, one error in his proceedings which might have seriously affected the legality of several of the convictions, though, as it happens, there is in this case sufficient evidence against all the accused who are affected by it. Certain witnesses were unable to identify in the Sessions court, one or more accused whom they had identified at the jail. This is not unnatural, as an interval of eight months elapsed between the identification and the trial, and the appearance of several of the accused had considerably altered in the meantime. In these cases the learned Judge has treated the jail identification as direct evidence against the accused, without anything to link it up with the evidence given in court. As was pointed out in Nagma v. Emperor , for a Magistrate or other officer to come into court and depose that a particular witness in his presence identified one of the accused as having taken part in the dacoity is nothing more than hearsay evidence. The Magistrate's evidence a mounts in substance to this: “The witness said in my presence that a particular accused whom he pointed out took part in the dacoity.” The statement of the witness is not made on oath, and it is not made in court. The statement can only he proved either to corroborate the evidence which the witness after words wives in court, in accordance with section 157 of the Evidence Act, or under some other provision of the Evidence Act. If the witness at the trial is no longer able to recognize the accused, there are two ways in which his previous statement can be rendered admissible. The statement made by the witness before the committing Magistrate may be brought on the record under section 288 of the Code of Criminal Procedure. This was the course adopted in Nagina v. Emperor . It is only available where the witness was able to pick out the accused before the committing Magistrate though he could not do so before the Judge. The other method is to elicit from the witness at the trial a statement that he identified certain persons at the jail and that the persons whom he there identified were persons whom he had seen taking part in the dacoity. If the witness is prepared to swear this, then it is open to the court under section 9 of the Evidence Act to establish by other evidence the identity of the accused whom the witness identified at the jail. For this purpose the best evidence will be that of the Magistrate who conducted the identification, and his evidence will be strictly relevant under the provisions of the Evidence Act. Of the witnesses who failed to pick out in the Sessions Court persons whom they had previously identified, the only one who fulfils these conditions is Tulshi Gir, who deposes that he saw some of the dacoits and that he recognized those same persons again at the identification before the tahsildar at the Haldwani jail. If the case of any of the accused had depended entirely on the evidence of witnesses who were unable to pick him out at the Sessions, it would have been necessary to send back the case to supply the omission in the learned Judge's record. As it happens, however, there is no accused against whom there if not at least one reliable identification in addition in the evidence of the approver.
We note here that the learned Judge says towards the close of his judgment that “the rulings are unanimous that a man cannot be legally convicted on the uncorroborated testimony of an accomplice.” If this be correct, all we can say is that the rulings in question have repeated section 133 of the Evidence Act, which no court is competent to do. The learned Judge will find the law correctly laid down in Mahant Narain Das v. The Crown (2), and various other rulings which have hitherto escaped his notice.
[The rest of the judgment was occupied with discussion of the evidence against each of the accused. The final order of the Court was as follows:—]
We dismiss the appeals of Abdul Wahab, alias Habbu Khan. Muhammad Saved Khan and Jamna Pas confirm the sentences of death passed upon them and direct that these be carried out according to law.
We dismiss the appeals of Ghuima Khan, Shabrati, Abdul Rahim Khan, alias Abdul, Prem, Sahib Singh, Ganga Ram, Alijan, son of Chheda Khan, Alijan, son of Ahmad Bakhsh, Jairaj, Lala, alias Tjalla, Jhabba, Behari, Nur Bakhsh, alias Nuri, Umrao and Baljit, and confirm the sentences of transportation for life passed upon them.
The further sentence of forfeiture passed under section 92 of the Indian Penal Code must be set aside as that section has been repealed by Act No. XVI of 1921.
Appeals dismissed and convictions upheld.