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Case Number

Criminal Appeal No. 314 of 1911

Advocates

Babu Monmatha Nath Mukhergee for the Appellants.
Mr. Sultan Ahmed with Moulvi Khorshaid Hossein for the Crown.

Judges

Caspersz
Sharfuddin, JJ.

Acts

Criminal Tribes Act (now, Act III of 1911).

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Sessions Judge, concurring with four assessors, convicted 39 appellants for belonging to a gang associated for the purpose of habitually committing dacoity. Appellants Nos. 2 and 27 were sentenced to transportation for life; the other appellants received rigorous imprisonment for seven or five years. The trial in the Court of Sessions occupied two months. The substantial question identified by the court on appeal was whether the approver, Bayan Sandar, had been adequately corroborated in respect of each of the appellants.

During the hearing before the appellate court, the learned Deputy Legal Remembrancer stated he was unable to support the convictions of six appellants (Nos. 8, 10, 14, 15, 17, 26), who were thereby excluded from consideration at the outset. The remaining cohort comprised 23 appellants, including two (Nos. 2 and 18) who had made confessions before a Magistrate.

The Crown's case, as presented at trial, characterized the Sandars as a semi-criminal tribe dwelling in boats, predatory by habit, and alleged that the appellants formed part of a gang of Sandars operating between 1891 and 1909 across several districts. The approver, Bayan Sandar, had been convicted in the Gadakhali dacoity case in February 1909 and on a later date made a detailed confession to a Magistrate that was "verified" by another Magistrate; the prosecution relied heavily on his confession and evidence.

Legal Issues Presented

Whether the approver Bayan Sandar was adequately corroborated in respect of each of the appellants so as to sustain convictions under section 400, Indian Penal Code (association for habitual dacoity).
Whether the evidence before the Sessions Court established that the accused belonged to a gang whose business was the habitual commission of dacoity (i.e., whether the requisite association was proved).
Whether the presence of members of the Sandar tribe near scenes of offences, and other circumstantial evidence about the tribe's general reputation, provided sufficient corroboration of the approver's testimony.
What weight should be given to: (a) prior convictions or bonds to keep the peace of certain appellants, and (b) confessions made by appellants Nos. 2 and 18 in a Magistrate's Court.

Arguments of the Parties

Crown's Arguments

Evidence proving an offence under section 400, I.P.C., need not be of the same quality as in the case of ordinary substantive offences; less particularity might be acceptable.
In seven occurrences during the period 1899–1909 Sandars were referred to as being concerned, and their presence near the scenes of those occurrences provides sufficient corroboration for Bayan's story.
Four appellants (Nos. 7, 9, 21, 25) had been sent up but acquitted in the Fulchari dacoity; the Crown referenced the witnesses (P.W. 65, 75, 204) in support.
Previous convictions of some appellants could be taken into account to support the inference of association for habitual dacoity.
The confessions of appellants Nos. 2 and 18 (made in the Magistrate's Court) are sufficient to complete the evidence against them.

Defense / Appellants' Positions

The learned Deputy Legal Remembrancer informed the court that he could not support the convictions of six appellants (Nos. 8, 10, 14, 15, 17, 26).
Appellants Nos. 2 and 18 had made confessions which were subsequently retracted before the Magistrate; they did not admit the existence of a gang when reexamined.
The opinion notes that learned counsel for the appellants (the learned Vakil) assisted in examining the record, but the text does not set out a detailed list of defense contentions beyond the matters above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Public Prosecutor v. Bonigiri Pottigadu	Illustration of the kind of evidence required to establish association under section 400; and that general criminality of a tribe cannot be imputed to individual members for such a prosecution.	The court relied on this case as an exemplar of the type of corroborative evidence required and observed that much of the evidential material in the present case was absent when judged against that standard.
King-Emperor v. Tirumal Reddi	That a special conspiracy (association) must be proved to sustain a conviction under the section.	The court cited the case to support the proposition that the special conspiracy/association element is essential and must be established for conviction under section 400.
The Queen v. Mooktaram Sirdar	The offence under the relevant statutory provision is of a special character and is entirely the creature of statute; therefore the section must be strictly construed.	The court invoked this authority to emphasize strict construction of section 400 and to underline that the section is highly penal, requiring careful application of proof standards.
Empress v. Kure	That evidence need not show the same degree of particularity as to the commission of each substantive offence as would be required in a separate substantive charge.	The court acknowledged this principle but treated it in context: even if less particularity is required than in a substantive charge, evidence must still establish membership in a gang habitually committing dacoity.
Bonai v. The King-Emperor	The past history of accused persons may be significant if association for habitual dacoity has otherwise been made out.	The court noted that previous convictions of some appellants would have been significant only if the essential association element had already been proved; here they were of limited weight.
The Emperor v. Nani Gopal Gupta; Rex v. Plummer	An acquittal in respect of a specific crime cannot give rise to an adverse inference of guilt in subsequent proceedings.	The court applied this principle to dismiss any inference against appellants who had been acquitted in the Fulchari dacoity, holding that such acquittal indicates they had nothing to do with that particular crime.

Court's Reasoning and Analysis

The appellate court reviewed the Sessions Judge's conviction (based on the approver Bayan Sandar's confession and evidence) and focused on whether adequate corroboration linked each appellant to the essential element of the offence under section 400, I.P.C.—association for the habitual pursuit of dacoity.

Key analytical steps and findings in the opinion:

The court noted that the Sessions Judge presented, in tabular form, a list of eighteen occurrences and identified persons implicated by Bayan's confession, together with documents and witnesses for the occurrences. However, many of the witnesses only identified the appellants as members of the Sandar tribe or as boat-dwellers congregating in flotillas; they did not connect individual appellants to specific occurrences.
The court emphasized the legal principle that general evidence of a tribe's reputation or presence in the area does not by itself connect individual members to the specific association required by section 400. The court cited prior authorities to show that the offence is statutory and must be strictly construed, and that proof must establish that the accused belonged to a gang habitually committing dacoity.
The appellate court found that corroboration of Bayan existed only to the extent of confirming some facts about the dacoities generally, but that such corroboration lacked tendency to prove that the appellants were with Bayan on specific occasions or belonged to the gang required to be shown by the statute. The court also pointed out contradictions in Bayan's deposition, which affected his credibility.
The court examined specific occurrences, including the Fulchari dacoity, noting weaknesses in the prosecution evidence—for example, railway booking records showing consecutive ticket numbers did not identify passengers as the dacoits, and Bayan's own confession as to Fulchari mentioned fewer participants than the Sessions Judge's general finding.
The court addressed the Crown's contentions in turn: (a) while acknowledging that some relaxation of particularity may exist compared to substantive offences, the court held that association must still be proved; (b) presence of Sandars near scenes of offences was insufficient to connect the appellants; (c) acquittal in earlier proceedings could not be used adversely against the appellants; (d) previous convictions relied on were of limited weight absent proof of association; (e) confessions by Nos. 2 and 18 had been retracted and were not conclusive in the face of weak corroboration.
The court further noted a material fact: no stolen or suspicious property was ever recovered in searches of the appellants' boats, which, if present, would have served as significant corroboration.
On balance, the court concluded that the required corroborative evidence connecting each appellant to the association for habitual dacoity under section 400 was lacking, and significant doubts remained about Bayan's testimony and the sufficiency of the prosecution's case.

Holding and Implications

Appeal allowed — convictions and sentences reversed.

Direct effect on the parties:

All appellants, including the six whom the Deputy Legal Remembrancer had earlier indicated he could not support, were acquitted of the charge under section 400, I.P.C., in the present proceedings.
The convictions and sentences imposed by the Sessions Judge were set aside, and the appellants were to be set at liberty insofar as the present proceedings were concerned.

Broader implications: The opinion does not announce or purport to establish a new legal precedent beyond applying established authorities about the strict construction of section 400 and the need for corroboration that connects accused persons to the specific association alleged. The court expressly regretted the public time expended on the trial but confined its decision to reversing the convictions in this case.

Appeal allowed.

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Kader Sundar And Ors. v. The Emperor .

The Sessions Judge, concurring with the four assessors, has convicted the 39 Appellants for belonging to a gang of persons associated for the purpose of habitually committing dacoity and he has sentenced Appellants Nos. 2 and 27 to transportation for life and the other Appellants to rigorous imprisonment for seven or five years. The trial of the case occupied two months in the Court of Sessions, but the substantial question for determination is a simple one, namely, whether the approver, Bayan Sandar, has been adequately corroborated in respect of each of the Appellants. Six Appellants Nos. 8, 10, 14, 15, 17, 26 may be excluded at the outset, because the learned Deputy Legal Remembrancer intimated, during the hearing, that he was unable to support their convictions. There remain 23 Appellants including two (Nos. 2 and 18) who made confessions in the Magistrate's Court.

The case for the Crown is that the Sandars are a semi-criminal tribe, dwelling in boats, wandering and predatory by habit and instinct, that the Appellants belonged to a gang of Sandars operating during the years 1891-1909, in the districts of Bogra, Pubna, Rungpur, Mymensingh and Rajsbahye, and that the numerous dacoities that took place were the work of this gang which, however did not invariably consist of the same persons but committed dacoities in detachments.

Bayan Sandar, the approver, was convicted in the Gadakhali Dacoity case in February 1909. Subsequently, on the nth April 1909, he made a detailed confession to a Magistrate of the crimes he had been guilty of, as a member of the gang, and this was “verified” by another Magistrate, On this basis, the 29 Appellants were sent up for trial with the result we have mentioned.

The Sessions Judge, after reciting the history of the initiation of the case and stating the general effect of the evidence of Bayan, proceeds to give, in tabular from, a list of the dacoities and thefts in which Bayan implicated himself and the Appellants who are his relations.

The tabular form gives a list of eighteen criminal occurrences, the date of each such occurrence, the names of the persons implicated by the confession of Bayan and by his evidence in Court, and the documents (first informations, etc.) and the witnesses proving the occurrence. But the numerous witnesses men sinning the Appellants merely say that they are Sandars that they live in boats, and that the boats congregate in bahars, that is in flotillas, at various places in the net work of rivers which constitute a preculiar feature of that part of the country. The witnesses identify the Appellants in one sense, but they do not connect them or any of them with the tabulated occurrences, Identification of this kind does not carry the case for the Crown very far in a prosecution under sec. 400, I.P.C, though no doubt such evidence and the other evidence in this case might be valuable if the proceedings had been for bed livelihood or with reference to the Criminal Tribes Act (now, Act III of 1911). The general criminality of a tribe or caste cannot be imputed to individual members operating in gangs where the prosecution is under sec. 400, I.P.C See The Public Prosecutor v. Bonigiri Pottigadu. Similarly, the documents specified do not prove that particular persons were named as having been concerned in any occurrence to which they Telate. In seven occurrences only, Sandars were suspected as having committed the offence reported, None were convicted. The utmost that can be said is that Sandars were seen within a distance of three miles from the scenes of the occurrences at or about the time in question. We offer these observations in this place because they have an important bearing in the matter of corroboration of the testimony of the approver, and it is as well to state, at once, the difficulty we feel in dealing with the case.

The Sessions Judge, after discussing some discrepancies in the evidence of Bayan, next proceeds to consider each occurrence from the year 1892 to 1908 when the Gadakhali dacoity, in which Bayan was caught red-handed, was perpetrated. The Sessions Judge explains the nature of be corroboration, which, in his opinion, was sufficient, but we do not find anywhere hat he directed his attention to What is legally adequate corroboration, that is, evidence connecting each of the Appellants with each or some of the occurrences we may mention that the Magistrate who verified Bayan's confession was hot examined as a witness, but the inferior evidence of the verification witnesses was recorded and relied on. Even so, the verification does not touch the Appellants.

The Sessions Judge then mentions certain other dacoities and thefts of which the Fulchari dacoity may be taken as a specimen. A Railway Booking Clerk (P.W 65) says that some persons took 7 or 3 tickets, possibly, bearing consecutive numbers, at the Bogra station for Fulchari on the day in question. We are unable to hold that this fact proves that twelve of the Appellants were the dacoits—if fact, railway tickets must be issued in a consecutive series, and the clerk cannot know who the passengers are—whether dacoits or others. Moreover, Bayan said, in his confession, that only eight persons committed the Fulchari dacoity. The finding of the Sessions Judge is in general terms, that—“There appears reason to think Sandars committed those dacoities and thefts”. He also says that a large number of Sandars were seen staying with their boats at the different centres of their association; that thefts and dacoities increased in the quarter where they used to stay; that the Sandars were kept under Police surveillance, and their boats used to be regularly searched. It is a fact of importance that no ??? property was ever recoveied in any of these searches.

The Sessions Judge ??? his judgment with a ??? of the case of each of the Appellants, by his analysis is not conclusive an does not go beyond his previous, estimate of the evidence.

In dealing with the judgment of the Sessions judge we have inevitably expressed the views we are constrained to adopt on the essential aspects of the case. The learned Deputy Legal Ramembrancer and the learned Vakil for the Appellants have afforded us the greatest assistance in examining the bulky record in which, it is admitted, much irrelevant matter is contained. The arguments of the learned Deputy Legal Remembrancer may now be considered in their order, and we proceed to do so.

It is argued for the Crown (1) that evidence proving an offence under sec. 400, I.P.C, need not be of the same quality as in the case of ordinary offences; (2) that in seven ??? during the shorter period 1899-1909, Sandars were referred to as being concerned in the same, and that their presence near the scenes of the occurrences affords sufficient corroboration of the story of Bayan; (3) that four of the Appellants (Nos. 7, 9, 21, 25) were sent up but acquitted in the Fulchari dacoity (P.W 65, 75, 204); (4) that the previous convictions of some of the Appellants may be taken into consideration; (5) that the confessions of Appellants Nos. 2 and 18 are sufficient to complete the evidence against them.

(1) Association is the gist of the offence punishable under sec. 400 of the Penal Code, that is, association for the habitual pursuit of dacoity. The subject is fully discussed by Dr. Gour, in his second volume on the Penal Law of India, and he has collected all the cases under the section (pp. 1587-1590). The section is a highly penal one, and, as was said by Phear, J., in The Queen v. Mooktaram Sirdar, the offence is “one of a very special character and entirely the creature of statute”. The section must, therefore, be strictly construed. Although the evidence need not show the same degree of particularity as to the commission of each dacoity as is required to support a substantive charge of that cirme [Empress v. Kure], it must be established, for the purpose of conviction, that the accused belong to a gang whose business is the habitual commission of dacoity. The special conspiracy must be proved—see King-Emperor v. Tirumal Reddi. A good illustration of the kind of evidence to be adduced in such a case as this is to be gathered from the judgment of Munro, J., in The Public Prosecutor v. Bonigiri Pottigadu, and we think that, in the case before us, the evidence under the seven heads (at p. 181 of the report) is almost entirely absent. For instance, it has not been shown that the Appellants move about in batches, have been arrested in batches, and are absent from home in batches, or that the Appellants have been concerned in a large number of dacoities.

(2) It follows from the principles we have just mentioned that the implication of Sandars generally in the number of even seven dacoities spread over the shorter period of ten years, is not sufficient proof against the present Appellants. The tribe or caste of Sandars contains thousands of human, beings, and even one bohor or flotilla of fifty boats may include two hundred persons. The approver Bayan has been corroborated to some extent as to the facts of the dacoities, but that corroboration has no tendency to prove that the Appellants were with him on each or some of the occasions. Corroboration of the testimony of an approver must connect the accused with the offence—here, the association of a gang of persons for the business of habitually committing dacoity. In this essential respect, the evidence does not sufficiently support the story of the approver, and we may add that Bayan's deposition, which has been placed before us, is not free from important contradictions which cast doubts on his veracity. We have already noticed the vital fact that no stolen property was found in the possession of any of the Appellants; if stolen or suspicious property had been discovered, that would have been adequate corroboration.

(3) The third contention of the learned Deputy Legal Remembrancer may be dismissed with the observation that the acquittal of the accused in Fulchari dacoity can only mean that they had nothing to do with that crime. See the cases of The Emperor v. Nani Gopal Gupta, Rex v. Plummer. No adverse inference can be drawn against the accused after their acquittal.

(4) The next argument concerns the previous convictions of some of the Appellants. Jadu (No. 23) was twice punished for dacoity. Sabed (No. 4), Rahimuddin (No. 6), Jalal (No. 11), Jadu (No. 23) and Tomiz (No. 24) were bound down to be of good behaviour under sec. 110, Cr. P.C Lal Chand (No. 19) was convicted for theft and sentenced to three months' rigorous imprisonment. These are the previous convictions relied on. They do not carry much weight, though; on doubt, if the association for the purpose of habitually committing dacoity; had been made out, the past history of some of the Appellants would have been significant, as was pointed out in the case of Bonai v. The king-Emperor.

(5) The last contention covers the case of the Appellants who confessed in the first Court (Nos. 2 and 18). We have heard the confession read out. The Appellants did not admit the existence of a gang. No. 2 spoke of five thefts and five dacoities. No. 18 mentioned, only one theft and one dacoity. The confessions were retracted before the Magistrate. In our opinion such confessions cannot be deemed conclusive where the other evidence in the case is so Warning in precisions.

The conclusion of the whole matter is that all the Appellants, including the six exempted by the learned Deputy Legal Remembrancer, are in the same category, and must be acquitted of the present charge under sec. 400, I.P.C We regret the expenditure of public time in the trial of this case in the Court of Sessions.

The appeal is allowed. The convictions and sentences are reversed. The Appellants will be set at liberty, so far as the present proceedings are concerned.

Appeal allowed.

Kader Sundar And Ors. v. The Emperor .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Crown's Arguments

Defense / Appellants' Positions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kader Sundar And Ors. v. The Emperor .

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