Ghose, J.:— The Appellants before us Mathura Thakur, Bansi Goala, Gokul Thakur, Jhingur Singh, Maksudan Thakur, Mon Mohun Thakur, Babuaji Jha alias Snreswar, and Musri Thakur alias Mahidhur, have been convicted by the Sessions Judge of Tirhoot, agreeing with one of the Assessors, of the offence under sec. 395 read with sec. 396 of the Indian Penal Code; and Mathura Thakur has been sentenced to death, subject to confirmation by the High Court, and the others to ten years' rigorous imprisonment.

The occurrence with which we are concerned is said to have taken place on the 21st November last between 3 and 4 o'clock in the afternoon. It appears that two fields, measuring each 10 bighas, belonging to one Mewa Lal Thakur and to some of the Thakurs Appellants before us, were sold in execution of a decree on the 26th December, 1899 and the 3rd August, 1900 respectively, and purchased by one Jhoomuk Mistri. It is said that on the day of the occurrence, the crops on one of these two fields, viz., the northern field, were unripe, and those of the other (southern) field were ripe. And the case for the prosecution is that Jhoomuk Mistri's gomastha, Abul Khairat, with 15 or 16 reapers, commenced to reap the crops, standing on about 2 bighas of the southern field, at about 8 or 9 o'clock in the morning, and they went on reaping until 3-30 in the afternoon, when the work was completed, and that at about that time a large body of rioters, numbering about 4 to 5 hundred, headed by Mathura Thakur, and accompanied by the other Appellants, who were variously armed, Mathura Thakur with a garasa, and the others with swords and lathies, came upon the southern field; that they came rather quietly without saying a single word; that Musri Thakur aimed a blow with a stick at Abul Khairat; that thereupon that individual filed from the place, and in this flight he was followed by the other persons, the reapers, in a body, and that Mathura Thakur, the head of the rioters, attacked the deceased Soman Dhania with his garasa near the said field; that upon a blow being given with it, Soman Dhania fell down on a ridge, and that Musri Thakur thereupon gave a blow with a stick which fell on the right shoulder of that man; that afterwards, under the orders of Mathura Thakur, the rioters began taking away the paddy which had been reaped, and they thus carried away the whole of the crops. That, shortly stated, is the case for the prosecution.

At about 9-15 p.m of the same day, the deceased Soman Dhania, who was not then dead, but who seems to have been quite conscious at the time, though unable to speak, was taken to the police-station by Abul Khairat, and the latter in his presence laid the first information, in which he accused all the Appellants, and one or two other Thakurs and one or two other persons, described as Boys, of having taken part in the outrage that was committed upon his party and the deceased Soman Dhania, who, according to his case, were lawfully employed in reaping the crops on the field in question. The deceased was afterwards taken to the hospital, but at the time when he reached that place, it is said he was unconscious and did not regain consciousness until about 3 o'clock the next morning, when certain statements were made by him and were taken down by a Deputy Magistrate. This was in the presence of the Assistant Surgeon, Dr. Kali Prasanna Lahiri.

We may here mention that the Deputy Magistrate who recorded the statement, described in the proceedings in the case as “the dying-declaration of Soman Dhania” has not been examined. And the statement itself was not recorded in the language in which it was made, but in English. In the course of the evidence that the Assistant Surgeon gave he referred to this dying-declaration as having been made in his presence. It may be that he could have referred to it in the course of his evidence for the purpose of refreshing his memory; but that was not what seems to have been done in the present instance. As we have already stated, the Deputy Magistrate, who recorded the dying-declaration, has not been examined; and it has been argued on behalf of the Appellants that the said dying-declaration not having been recorded in the language in which it was made, and not having been proved as required by law, could not be admitted as evidence in this case. The learned Deputy Legal Remembrancer felt the force of this argument, and as we understood him, he did not contend that the said declaration could be properly received; but what he did contend for was that the Assistant Surgeon, who was examined in this case, could have referred to the dying-declaration for the purpose of refreshing his memory to be able to give his evidence in this case.

According to the case for the prosecution, as already indicated, the 2 bighas of the southern field which were harvested by Abul Khairat and the reapers, were on the south-east extremity of the 20 bighas which had been sold on two different dates and purchased by Jhoomuk Mistri; and Abul Khairat being threaten ed with violence, in the way already mentioned by Musri Thakur, filed in company with the reapers towards the east, that is to say, towards the village Narkuttia. The place or the particular spot where Soman Dhania was afterwards found is somewhat south-east of the field in question. According, however, to the map prepared by the Sub-Inspector, it does not appear, how, if these persons were flying towards the east, Soman Dhania should have been attacked at a place about 2 bighas south-east of the field in question. But perhaps no importance ought to be attached to this matter, because the map in question was not drawn to scale. However that may be, according to the evidence of the Sub-Inspector, Nehaluddiu Ahmed, who has been examined in this case for the prosecution, when he went to the locality the next day for the purpose of holding an investigation, he found that the crops of some of the lands on the extreme west had been cut down from the roots, but those on the eastern side had only been cut down, some near to the ears and some in the middle. ??? this statement of the Sub-Inspects ??? it certainly militates against the case for the prosecution as disclosed in the evidence of the witnesses examined 011 behalf of the Crown; but I do not think that any great importance should be attached to this discrepancy as to the exact part of the field from which crops had been harvested, whether it was on the extreme west, or it was 011 the extreme east. According to the case for the prosecution, the crops had been harvested, and the rioters in a body came from the south, and upon their arrival and upon one of them aiming a blow at Abul Khairat, they all fled, and while they were flying towards the east, one of the rioters, namely, the chief of them, Mathura Thakur, cut Soman Dhania with his garasa, and the latter thereupon fell down upon a spot about 2 bighas distant from the field.

The learned Judge of the Court below seems to have thought that if the case for the prosecution as to the exact part of the field from which the crops were cut on that day were found to be untrue, upon the evidence of the Sub-Inspector of Police, the whole case for the prosecution would fall to the ground; but I am not quite disposed to take the same view. As I have already indicated, this part of the case seems to me to be not of such vital importance as the learned Judge of the Court below seems to have thought. But however that may be, the first observation that occurs to one is this, that almost the whole family of the Thakurs have been implicated in this transaction. Mathura Thakur, Gokul Thakur and Musri Thakur are three brothers, and ??? nephews of Mewalal Thakur. ??? and Mon Mohun are the agnates of Mathura Thakur, and Babuaji Jha is the sister's son of Mathura Thakur. The other two Appellants, Bansi and Jhingur Singh, are servants of the family, and according to the case made by Abul Khairat, in his first information, and also in the evidence he subsequently gave before the Court, two other Thakurs were also implicated and one or two others, Roys. But it is noteworthy that whereas the properties of the Thakurs were sold on the 26th December, 1899 and 3rd August, 1900, they should not have are this, made an attempt, if they really did not like the properties to pass into the hands of Jhoomuk Mistri, to regain possession by unlawful means. On the contrary we find that a petition was presented to the Court for the purpose of having the sale of the northern plot set aside, and at the time of the occurrence in question, the matter of the propriety of the sale was actually pending in Court. In these circumstances it seems rather remarkable that when Abul Khairat was employed in reaping the harvest of about 2 bighas of land, out of the 10 bighas constituting the southern plot, the Thakurs should have come in a body and attacked him and his comrades, and after Soman had been felled down with a garasa, they should have remained on the spot with the view to loot the whole of the crops. One should have thought that after Soman had been slain, the rioters would all fly from the place of occurrence, so that no evidence could afterwards be discovered as to their presence, or their complicity in this transaction. But no; according to the case for the prosecution, after Soman had been felled down almost dead near the field in question, Mathura Thakur remained in the locality, gave orders to loot the whole of the crops, which had been harvested, and the rioters were employed in taking away the crops. One does not know if any attempt was made to discover where this vast quantity of crops, said to be worth Rs. 500, were carried away by the rioters; and it is rather remarkable that they should not have been content with looting the crops of the 2 bighas in question, but also looted the unripe crops which were then growing, or which had grown upon the northern 10 bighas, in respect of which an application had been made to have the sale set aside—an application which was then pending trial. These are observations which occur to one at the very outset of the case.

Then, we come to refer to the charges which were made by the Magistrate against the accused, and upon which charges they came to be tried in the first instance before the Sessions Judge. They were charges under secs. 148 and 379 read with sec. 149 of the Indian Penal Code; and in addition thereto a charge was framed against Mathura Thakur under sec. 304, namely, for the offence of culpable homicide not amounting to murder.

In the usual course, the case was placed before the Sessions Judge of Tirhoot for trial, and this trial commenced on the 8th May, when all the important witnesses for the prosecution were examined.

On the 9th, the trial was resumed, when only two unimportant witnesses for the prosecution were examined, and then the accused were called upon to make their statements with reference to the statements which they had made before the Magistrate; and on the same date witnesses for the defence were examined. And finally this rather remarkable thing occurred. On the same day, the 9th May (at what exact stage, we do not know) the learned Sessions Judge added another charge to the charges upon which the accused were being tried, and that charge was under sec. 395 read with sec. 396 of the Indian Penal Code, namely, dacoity, and being members of a dacoity party, in the course of which dacoity a murder took place. And on the same day, the trial was concluded, and the accused was convicted. It is stated on the record, and we must accept that statement to be perfectly correct, that the accused on being called upon to answer this charge pleaded not guilty; but whether any protest was made on their behalf by their vakils to this sudden addition been made to the charges against the accused, we do not know. The Deputy Legal Remembrancer has asked us to hold that, by reason of this addition to the charges made by the Sessions Judge, the accused could not have been prejudiced; but we observe it stated in the petition of appeal presented to this Court that the charge under sec. 395 read with sec. 396 was added by the Sessions Judge after the case for the defence had been concluded, and while the pleaders on their behalf were addressing the Judge. We may presume that the petition of appeal was in the usual course placed in the hands of the officers of the Crown; but the Deputy Legal Remembrancer was not in a position to say “no” to the statements made in the petition of appeal. It is quite possible that the attention of the officers of the Crown was not specifically drawn to this important statement; and in this view of the matter we should not place much reliance upon it. But still the fact remains that this additional charge was framed after all the important witnesses for the prosecution had been examined, and on the 2nd day of the trial, when the trial was concluded; and this lends some support to the statement made in the petition of appeal. But assuming that the additional charge was framed at a time when the evidence for the defence had not been concluded, and when the accused had some little time to call in other witnesses, if they plcased, it seems to me, that when such a grave charge—a charge upon which the accused might be condemned to death—was added to such charges only, as being members of an unlawful assembly, rioting and theft, or of culpable homicide not amounting to murder, it is impossible to conceive that they could not have been prejudiced by reason of the action taken by the Sessions Judge in this matter. We cannot possibly account for the action taken by, or rather, non-action, of the pleaders for the accused in this case. No doubt, the learned Sessions Judge had every authority under the Criminal Procedure Code to add a charge at any time before judgment is delivered; but a reference to secs. 2-27, 228 and 229 of the Code will show that while the law empowers him to do so ??? of the proceedings before judgment, ??? when doing so, exercise a sound and wise discretion and I am unable to say, looking at the proceedings in this case, that the learned Judge did exercise a sound and wise discretion in adding such a grave charge at so late a stage of the trial, and continuing the trial without any adjournment. But assuming that the learned Judge was right in doing what he did in this connection, and assuming also for a moment that the prisoners were not prejudiced by what he did, let us examine the sections themselves under which they have been convicted. Sec. 395 says:—“Whoever commits dacoity shall be punished with transportation for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.” Then sec. 396 says:—“If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death or transportation for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.”

The first essence of an offence under sec. 396 would seem to be that the dacoity is the joint act of the persons concerned; and the second essence of the offence is that the murder is committed in the course of the commission of the dacoity in question. This is to be borne in mind in determining the question whether the offence which was committed by Mathura Thakur in slaying Soman Dhania could be taken to be an offence under sec. 395 read with sec. 396, I.P.C These two sections lead us to consider, in the first instance, the definition of the word “robbery,” as occurring in sec. 390:—“Theft is ‘roberry,’ if, in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.” The essence of the offence as herein defined is that the offender for the end of committing theft, or carrying away or attempting to carry, away properties obtained by theft voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Then we have sec. 391, which defines “dacoity.” “When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit ‘dacoity.’” The question here arises, whether Mathura Thakur, when he attacked Soman Dhania did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested. Now, according to the case for the prosecution, as disclosed by the evidence of the various witnesses examined in the case, when the rioters came in a body on the field, 5 or 7 of them were in advance, so to say, and Musri Thakur having aimed a blow (it is not stated that he actually struck) at Abul Khairat, the latter with all the reapers filed away from the field. Soman Dhania happened to be the last of the flying party, and he was attacked, when he was flying, by Mathura, with a garasa, and the man fell down; that is to say, when the whole body were flying away, and Soman, who was only a reaper, was also flying, he was attacked and fell down. Could it be said that the attack that was made by Mathura upon this man Soman was for the purpose of carrying out the end which it is said that the rioters had in view, namely, of looting the paddy which had been harvested. It seems to me that it could not be so held; and it follows from this, that one of the main elements which constitutes the offence under sec. 395 read with sec. 396 is wanting in this case. In this view of the matter I consider that the charge and the only charge upon which the learned Sessions Judge has convicted the accused cannot be sustained. This, I may here observe, is only upon the supposition that the evidence that has been given by the prosecution is fully reliable. What I mean is that, accepting the evidence of the prosecution as it is, the offence under sec. 395 coupled with sec. 396 has not been made out in this case.

Let us then deal with the question of fact raised in this case. Soman was, no doubt, wounded, and he died in consequence of the wound that was inflicted upon him. But is it proved that it was Mathura Thakur that wounded him? No doubt, the witnesses for the prosecution say so, but looking into the evidence carefully, it seems to me that it is very difficult to hold that the witnesses could have seen Mathura actually slaying the deceased. According to some of the witnesses for the prosecution, and notably according to one of them, Abul Khairat, the gomastba, was the first to fly, and in that he was joined by the reapers, including Soman, and the latter was the last in the fight. No doubt, according to some of the witnesses, a certain position is given to Soman, which might make it possible for some of them seeing this attack by Mathura Thakur; but according to certain other witnesses, it would be almost impossible to believe that any one could, have seen Mathura slaying this man; for according to those witnesses Soman was south-west, and not southeast of the persons who were flying away from the field, they having taken an easterly direction.

We have examined the evidence of the witnesses with as much care as we could bestow upon it; and we are satisfied that the statements of the witnesses, eminently of Abul Khairat, when they say that they saw Mathura Thakur attacking and slaying Soman Dhania cannot be accepted as true. They were all eager to save their own lives, and they could have hardly looked behind to see what was happening; and unless it be assumed that Soman was south or southeast of them, and that they looked round to tee what Mathura or any of the other rioters were doing, they could not have seen that person attacking and slaying Soman.

Then comes another matter for consideration; and that is as regards the looting of the paddy. I have already indicated at the outset, that no attempt was made to discover the whereabouts of the vast quantity of crops said to have been carried away by the rioters; and here I may mention that according to most of the witnesses for the prosecution—and also, according to the first information laid by Abul Khairat—the reapers came with garasas, swords and lathies; and there is no allusion to any scythe having been brought by the rioters; and the question naturally arises what is the instrument with which they cut the vast quantity of paddy standing upon the whole of the 18 bighas, which had not been cut, including the unripe paddy on the 10 bighas on the north. There is no doubt one witness who mentions the word scythe among the instruments which the rioters brought; but this was evidently an afterthought of the person or persons who were advising the prosecution; and I think we ought not to accept this statement.

There is one word I might here say as to the witnesses for the prosecution generally, and it is this: Most of them are more or less defendants or partisans of Jhcomuk Mistri. There are, no doubt, one or two persons who may be taken to be independant. They are said to own some lands, and live close to the land from which paddy had been cut. And it is stated that they came in, and looked on at the whole transaction. It is rather remarkable that they should have been allowed to look on all the time unmolested by the rioters; and it seems to me rather risky to accept their statement when they say that they saw what actually took place in this transaction, but did not attend to Soman, even after the rioters went away, as it appears from their evidence.

The learned Sessions Judge has, in finding the accused guilty, relied in a great measure upon the dying-declaration to which we have already adverted; and for the reasons we have already indicated, we do not think that declaration is properly in evidence, or, at any rate, that it should be relied upon in this case in convicting the accused.

Then the Sessions Judge seems to have relied upon the evidence of certain witnesses who were examined before the Magistrate, that is to say, before the accused were placed before the Magistrate, but who were not examined in the course of the trial before the Sessions Judge. It is said that the accused had absconded at the time. No doubt, there is some indication of this in the evidence of the Sub-Inspector of Police; but it does not seem to be of such a character that one should be justified in holding that these persons really absconded, and were keeping out of the way, so that the evidence which they had already given before the Magistrate might be regarded as admissible in evidence, even if they were not called. There are other irregularities in the course of the trial to which our attention has been called by the learned counsel for the Appellants; but in the view we have already expressed it is unnecessary to discuss them. It is sufficient to say that for the reasons we have already given, the charge upon which the learned Sessions Judge has convicted the accused cannot be sustained. And we may add that the evidence is not also sufficient, to our minds, to justify the conviction of the accused under any of the other sections which were mentioned in the charge drawn by the Magistrate.

Upon these grounds we set aside the conviction and sentence in this case as regards all the Appellants, and direct that they be set at liberty.

Taylor, J.:— I entirely agree in the remarks in the judgment just delivered and I would only add that the inquiry appears to be incomplete and the evidence does not carry to the mind a conviction of its truth. It is a pity that the witnesses were not examined in greater detail and facts elicited from them to show what was done by each of the accused persons. This should be done always in order that the Court may be in a position to judge of the culpability of each individual and to mete out appropriate punishment.

With regard to the so-called dying-declaration the witnesses should not have been allowed to prove the document as if it was a substantial piece of evidence in the case. The relevant fact to be proved was the statement made by the deceased person admissible under sec. 32 of the Evidence Act. That statement is not the document made by the Magistrate but the verbal statement made by the deceased person. The document made by the Magistrate does not amount to a deposition or record of evidence. It was not taken in the presence of the accused; nor was it taken in their absence under the provisions and conditions prescribed by sec. 512, C. Cr. P. The only way of proving the statement was therefore by the oral evidence of some witnesses who heard it made, the said witness being at liberty to refresh his memory by referring to the note made by him or read over by him at or about the time the statement was made. I would lay stress upon this because in many cases irregularities of this nature have led to a miscarriage of justice or to great delay in the trial of pases.

I may note that the record made by the Magistrate is in English. It clearly does not contain the exact words used by the accused which alone would detract considerably from its value as a true record of the statement made. But as it is most probably that the statement was not a continuous statement by the dying person but was elicited in answer to one or more questions the document to be really of use should have clearly set out the exact questions put and the answers made to them.

H.P.C

Appeal allowed:

Conviction set aside.