Shearer, J.:— These appeals are by ten men who have been convicted by Mr. S.N Ahmad, Additional Sessions Judge of Monghyr, of conspiracy, and for that offence have been sentenced to undergo rigorous imprisonment for five years each. The object of the conspiracy was said to be to commit dacoity, and in pursuance of the conspiracy four dacoities were said to have been committed. Each of the appellants, with the exception of Nawal Kisho a Dhawal, was convicted of having taken part in one or more these dacoities and, with the exception of ??? Prasad, Jadav who was sentenced to undergo rigorous imprisonment for six years, was sentenced to undergo transportation for life. The earliest of these dacoities was committed on the night of the 10th of October, 1942, at Matadih. Two more were committed on the following night, one at Bangalwa and the other at Saradhi which are contiguous villages not very far from Matadih. The last dacoity was committed at Gaura, which is some considerable distance away from the other villages, on the night of the 13th of October, 1942. In the dacoity at Bangalwa, and also in the dacoity at Gaura, firearms were used. At Bangalwa one Teju Mian was killed and eight or nine other men were more or less seriously wounded. At Gaura one Sheikh Baser was killed and two other men were wounded. Some members of the gang who committed these dacoities were dressed in military uniform and at first it was suspected that some of the ring leaders of the dacoits had been soldiers from a camp near Jamalpur. This theory was, however, soon exploded and the attention of the police was directed to the appellant Achhai Lall Singh. This man belongs to Daryapur, a village not very far away from Matadih, and in 1941, he had enlisted in the Army and about a year later had deserted. He was arrested at the house of his father-in-law in the district of Bhagalpur on the 24th of October, 1942, and was taken to Monghyr on the following day. He then made a lengthy statement to a sub-inspector Gopi Kant Thakur; who had arrested him, and subsequently, on the 4th of November, 1942 and the day following made a confession to the Sub-divisional Magistrate. After Achhai Lall Singh had been arrested and had made a statement to the sub-inspector, and before he made a confession to the magistrate, another of the appellants, Shital Prasad Jadav, was arrested at Bahadurgamj in the district of Purnea. This was on the 1st of November, 1942, and on the 8th of November, 1942, this appellant also made a statement to a magistrate at Kishenganj. In this he did not confess to having taken part in any of the dacoities but admitted that he had been associating with certain of the other appellants and had fled with them from Monghyr to Purnea. One Kaila Chamar who has since died was arrested on the 6th of November, 1942, and on the 12th of November, 1942, made a confession to a magistrate in which he admitted having taken part in some of the dacoities and admitted also having stolen a number of bombs or hand-grenades from the military camp near Jamalpur and secreted them in a cave on the top of a hill not far away. One Jhaksa Gorhi was arrested on the 21st of November, 1942, and on the 26th of December, 1942, made a confession to a magistrate. The appellant Surhaija Kora who was the only other appellant who made a regular confession, was apprehended some considerable time later. The confession which he made was recorded on the 11th of March, 1943. A pardon was eventually tendered to Jhaksa Gorhi and he gave evidence at the trial in the court of session. He was there subjected to a very lengthy and searching cross-examination, being in the witness-box for several days on end, and this he withstood successfully. The learned Additional Sessions Judge subjected his evidence to the most searching and critical analysis and came to the conclusion that he had in fact taken part in the dacoities and that he had in general given a wholly veracious account of what had taken place. In this Court it has not been suggested that this conclusion at which the court below arrived was erroneous. All that has been said, and rightly and justifiably said, is that Jhaksa Gorhi is a man of the worst possible character, being a hardened criminal who has taken part in many other dacoities and burglaries and that his evidence cannot be relied on as against any of the appellants unless there are other circumstances going to connect that particular appellant with the dacoity or dacoities in which he is said to have participated. This, it may be said, was quite clearly recognised by the learned Additional Sessions Judge.

Achhai Lall Singh belongs to a respectable and fairly well-to-do family and is a young man of some education. In his confession he said that in or about 1937 he had made the acquaintance of the appellant Lakhan Lal who belongs to the Congress Socialist Party. Achhai Lal Singh's father succeeded in breaking off his association with Lakhan Lal but it was subsequently renewed sometime in 1941. In the latter part of 1941 Achhai Lall Singh went to Jubbalpur and enlisted in the Army. According to him, he did so at the instance of Lakhan Lal and another prominent member of the Congress Socialist Party, one Basawan Singh, the idea of these two men being that he should take this opportunity of learning how to use firearms in order that when a revolution broke out he might prove a valuable asset to their party. Achhai Lall Singh appears to have shown some aptitude as a recruit; at all events, he was ultimately made an instructor and was posted to a camp at Deolali. He said that on or about the 29th of August, 1942, Lakhan Lal and another man had come to him at Deolali and induced him to desert and also to get some other sepoys to desert along with him. Achhai Lall Singh waited until he could draw such pay as was due to him and then deserted on or about the 13th of September, 1942. Three other sepoys deserted along with him and all of them came to Achhai Lall Singh's home at Daryapur. Within a very few days, however, they decided to leave Daryapur and live in a cave on the top of one of the hills near Jamalpur. One reason for this was, apparently that arrangements had been made with Kaila Chamar who was employed as a cooly at the military camp, for Kaila Chamar to steal boxes containing bombs or hand-grenades and secrete them in this cave. On the 26th of October, 1942, Achhai Lall Singh took the Superintendent of Police and the Sub-divisional Magistrate to this cave and showed them a number of boxes containing bombs or hand-grenades which had been stolen by Kaila Chamar. Achhai Lall Singh said that Lakhan Lal and Basawan Singh in order to raise money with which to procure firearms and generally further the designs of the political party to which they belonged, decided to commit dacoities, more particularly in the houses of well-to-do Muhammadans residing in the locality. According to Achhai Lall Singh, this decision was taken on or about the 24th of September, 1942, and it was in pursuance of it that the dacoities at Matadih, Bangalwa, Saradhi and Gaura were subsequently committed. The confession of Achhai Lall Singh can be taken into consideration as against the other appellants and goes to show the existence of a conspiracy. Apart, however, from this confession there are other circumstances from which the existence of a conspiracy can justifiably be presumed. There is, for instance, the circumstance that certain of the appellants were shown to have taken part in two or more of these dacoities and the circumstance that the modus operandi of the dacoits in each of the four dacoities was very much the same. Mr. Baldeva Sahay, appearing for certain of the appellants, said that the object of the conspiracy was not to commit dacoity but rather to effect a change in the Government by means of physical force. It may well be that Lakhan Lal and Achhai Lall Singh and some of the other conspirators hoped that in the immediate future a revolution might break out and that in this revolution they would be able to make use of the bombs and hand-grenades which had been stolen for the purpose of enabling the leaders of the political party to which they belonged to seize power. The bombs, however, do not appear to have been stolen from the ‘military camp before the decision to commit a’ number of dacoities in the neighbourhood was taken, and there appears to be no doubt but that some of the dacoits carried bombs with them. There is, for instance, evidence that Achhai Lall Singh himself showed a bomb to a man Bhagwat Singh who happened to meet him and his companions in the jungle immediately before the dacoity at Gaura was committed. It also appears that when Lakhan Lal was arrested at Calcutta on the 1st of December, 1942, a bomb was found in his possession. Jhaksa Gorhi and Kaila Chamar and some at least of the appellants are not men who would seem to take or be able to take an intelligent interest in any political movement. It is scarcely possible that they at least shared any aspirations or hopes which may have actuated Lakhan Lal and Achhai Lall Singh and some of the other conspirators. I am unable to agree with the contention put forward by Mr. Baldeya Sahay, and I am of opinion that the inference to be drawn from the confession of Achhai Lall Singh and from the other circumstances to which I have just referred is that the object of the conspiracy was limited and was to commit dacoities in the neighbourhood of Jamaipur. The charge of conspiracy would seem to have been preferred in order to enable the appellants to be charged at the same trial with having taken part in the various dacoities which were committed in pursuance of it. Technically no exception can be or has been taken to this course and it cannot, I think, reasonably be said that in this particular case any of the appellants was thereby handicapped in his defence. With the exception of Nawal Kishore Dhawal each one of them has, as I have already said, been convicted of having taken part in one or more of the dacoities. The overt act of these appellants in taking part in one or more of these dacoities is by itself clearly sufficient to show that he was a party to the conspiracy. So far, therefore, as they are concerned, it is unnecessary to consider this aspect of the case further. The case of Nawal Kishore Dhawal stands, however, on a very different footing. Nawal Kisore Dhawal is the editor of a vernacular paper published at Monghyr. In convicting him the learned Additional Sessions Judge relied on entries found in a note-book belonging to Lakhan Lal which showed that on several occasions Lakhan Lal had received letters from him while he was in Kishenganj. These letters were, however, in each case written some months prior to the inception of the conspiracy and show no more than that Nawal Kishore Dhawal was on friendly terms or had business relations of some kind with Lakhan Lal. The other circumstance on which the learned Additional Sessions Judge relied was that, to use his own expression,

“the house of Nawal Kishore Dhawail at Monghyr was the headquarters of the conspiracy”.

It is true that when the house was raided on the 26th of October, 1942, one Sajiwan Dhanuk, who appears to have been a leading member of the conspiracy, was found there and arrested. It is also true that this man and also the appellant Shital Prasad Jadav seem to have lived with Nawal Kishore Dhawal. Jhaksa Gorhi, however, made it clear that when he went to the house to meet Sajiwan Dhanuk he did not meet or come into contact with Nawal Kishore Dhawal prior to the 23rd of October, 1942, or thereabouts, by which time the dacoities had already been committed. Jhaksa Gorhi described a meeting of some of the conspirators which took place in Nawal Kishore's house on or about that date and at which Nawal Kishore was present. According to him, the conspirators then decided to leave the neighbourhood of Monghyr and Jamaipur and go to Purnea and commit dacoities there and Nawal Kishore agreed to this plan and on the day following left Monghyr with some of the conspirators taking a gun and a box of cartridges with him. There is some evidence, apart from that of Jhaksa Gorhi, that a man named Gopal had been sent to Purnea to ascertain whether dacoities could suitably be committed there and had returned before this meeting was held. If there was also evidence to show that a dacoity or dacoities were actually committed in Purnea, then possibly Nawal Kishore's conduct in leaving Monghyr and going to Purnea with some of the conspirators might have been regarded as an overt act and sufficient corroboration of what was said by Jhaksa Gorhi. So far, however, from any dacoities having been committed in Purnea, it is quite clear that those of the conspirators who went there immediately broke up into small groups and went more or less into hiding. No one belonging to Purnea or Kishenganj was called to say that he had seen this appellant there, and Nawal Kishore appears to have returned from Purnea after a comparatively short interval as he was apprehended in Monghyr on the 15th of November, 1942. When no overt act in pursuance of the conspiracy was done by this appellant, and when on the evidence of Jhaksa Gorhi himself it appeared that he had not joined the conspiracy until Achhai Lall Singh had been arrested and the conspiracy had been discovered, it was incumbent on the prosecution to show that there was in fact an agreement between him and some of the conspirators under which he was to take part or assist in the commission of dacoities in Purnea. It is, in my opinion, quite impossible to rely on the evidence of Jhaksa Gorhi which in this matter is wholly uncorroborated. It may be that Nawal Kishore Dhawal being on friendly terms with and possibly sharing the political views of Lakhan Lal, and Sajiwan Dhanuk residing in his house, was privy to what the conspirators had done or intended doing. It may well be that it was because he was privy to their plans that when the police got on to their track he decided to leave Monghyr with some of them and hide in Purnea. That, however, is clearly insufficient to justify his conviction for conspiracy.

The case against the appellant Baikunth Dubey rests almost wholly on the evidence of Safdar Mian (P.W 16) who was one of those who were wounded in the dacoity at Bangalwa. This man said at the trial that he had seen and recognised Baikunth Dubey among the dacoits, and prior to this he had picked him out at a test identification. There is no doubt that this test identification was fairly and properly conducted and that the evidence given by Safdar Mian was honest evidence. At the test identification there were, however, as many as 10, suspects and 80 non-suspects, and there is a certain amount of danger that in picking this appellant out Safdar Mian was confusing him with another man bearing some resemblance to him whom he had seen among the dacoits. The learned Additional Sessions Judge would apparently not have convicted Baikunth Dubey if he had not thought that the evidence of Safdar Mian received strong corroboration from the circumstance that Surhaiya Kora and also Kaila Chamar mentioned him in their confessions. Surhaiya Kora said in his confession that when he set out for Matadih the men who went with him were Polo Singh, Baikunth Dubey and three military men. He did not, however, mention Baikunth Dubey as having participated in the dacoity at Bangalwa. It is, I think, somewhat curious that Surhaiya mentioned this man at the very outset of his confession and said nothing at all about him later. Surhaiya Kora did not make his confession until the 11th of March, 1943, and presumably before he did so he had been interrogated at some length by the sub-inspector, and more particularly had been interrogated about those suspects against whom comparatively little evidence had already been obtained.

There is, I consider, more than a possibility that, as a result of such interrogation, Surhaiya Kora got the impression that it would be to his advantage to mention this appellant and mentioned him in his confession accordingly. Kaila Chamar, as I have already said, died before the commencement or completion of the enquiry and his confession is, therefore, not admissible under section 30 of the Evidence Act. The learned Additional Sessions Judge thought it admissible, however, under either section 10 or section 32(3), or possibly under both of these sections. Section 32(3) cannot, I think, have any application whatever. The principle underlying that section is that when a person makes a statement rendering him liable to criminal prosecution, the statement is likely to be a true statement. Now, before he made his confession Kaila Chamar had already been arrested, and prior to his arrest had taken the sub-inspector to the cave where he had secreted the bombs which he had stolen. In other words, the was already in existence evidence against him which would ??? have led to his prosecution and might by itself well have led to has conviction. The applicability of section 10 of the Evidence Act is a point of more difficulty. The learned Government-Advocate relied on a decision of a Division Bench of the Calcutta High Court, Kunjaal Ghosh v. Emperor. In that case, however, the statement made one of the conspirators was made to a private individual and was made price to his arrest and while the conspiracy was still being prosecuted. It is not, in my opinion, very directly in point. The learned Additional Sessions Judge relied on a decision of a Division Bench of the Lahore High Court in Mohammad v. Emperor. That decision is perhaps more nearly relevant. The only decision, however, I can find directly applicable is a decision of a judge of the Chief Court of Oudh sitting singly, Satdeo v. Emperor. With the greatest respect I must say that I entertain considerable doubt as to the correctness of these two decisions. In England a statement made by one conspirator is not admissible as against the other conspirators unless it has been made with a view to furthering the object of the conspiracy. It is true that section 10 of the Evidence Act has been drawn in such a way that in this country a statement made by one conspirator may be admissible as against the other conspirators if it merely shows the existence of a conspiracy, although it may not have been made with a view to furthering the object of the conspiracy. I am inclined, however, myself to think that the section pre-supposes the existence of a conspiracy at the time when the statement in question is made and does not contemplate confessional statements made after the conspiracy has come to an end and certain of the conspirators have already been apprehended and are being or are about to be prosecuted. In my view the learned Additional Sessions Judge was in error in admitting the confession of Kaila Chamar. In any case, even if this confession was rightly admitted in evidence, no more weight can be attached to it as against this appellant than can be attached to the confession of Surhaiya Kora. There is, I consider, a reasonable doubt as to the guilt of this appellant and I would, therefore, allow his appeal and set aside his conviction.

In the result, I would allow the appeals of Mukhlal Gareri, Nawal Kishore Dhawal and Baikunth Dubey, would set aside their convictions and sentences and direct that they be released and set at liberty forthwith. I would dismiss the appeals of the other appellants but would substitute for the sentences which have been imposed on all of them except Shital Prasad Jadav a consolidated sentence of transportation for life. I would impose on Shital Prasad Jadav a consolidated sentence of rigorous imprisonment for six years. The lower court imposed two sentences on him of rigorous imprisonment for six and five years respectively, these sentences to run concurrently. This sentence erred, in my opinion, on the side of leniency, but no rule for enhancement was issued and I do not consider it necessary to delay the disposal of his appeal by issuing one now.

Imam, J.:— I agree that the appeals of Achay Lal Singh, Hari Lal, Lakhan Lal, Shital Prasad Jadav, Polo alias Palakdhari Singh, Saukhi Rai and Surhaiya Kora be dismissed, I also agree to the sentences which my learned brother proposes to pass on them. I also agree that the appeals of Nawal Kishore Dhawal and Baikunth Dubey be allowed and their convictions and sentences be set aside.

The case of the appellant Mukhlal Gareri requires careful consideration and I may say that his case has caused me considerable anxiety. The evidence against him consists of the approver Jhagsu Gori, the retracted confessions of the appellants Surhaiya Kora and Achhay Lal Singh and the identification of P.W 16 Safdar of Bangalwa and P.W 33 Saleem of Saradhi. Jhagsu Gori the approver is a self-confessed ruffian whose own story of his misdeeds convinces me that he is a dangerous man still let loose on society. It has been the well-settled practice of the Courts in India not to convict on the evidence of an approver unless it has been corroborated in material particulars. The character of the approver in this case is so appalling that I am satisfied that in this case it was necessary to adhere more than ever to that practice. It has also been decided more than once by the Courts in India that it would be unsafe to take into consideration the retracted confessions of a co-accused against other accused persons unless it was corroborated by reliable evidence in material particulars. An approver's evidence has always been regarded as tainted ab initio and it has always been thought that one piece of tainted evidence should not be taken as corroborated by another piece of tainted evidence. I have come across at least two reported cases of the Calcutta High Court where their Lordships declined to take into consideration such evidence as corroboration. I refer to Latafat Hussain Biswas v. Emperor and Kashem Ali v. Emperor. In the former case an approver's evidence was corroborated by the confession of an accused. In the latter case the retracted confession of an accused was corroborated by the evidence of two approvers. I do not think that their Lordships laid down any new principle and only repeated what has been regarded in all these years as a sound principle. I respectfully agree with what was said in these two cases and would emphatically declare that it would be dangerous to deviate from it unless the circumstances were exceptional. The confessions of Achhay Lal and Surhaiya Kora have been retracted. It would have been impossible to convict any accused person, except the confessing accused, on such statements without corroboration in material particulars. Prosecution have sought corroboration of these retracted confessions in the evidence of the approver and the identification of Mukhial Gareri by witnesses Safdar and Saleeni, of the appellants whose convictions I have agreed to uphold Achhay Lal Singh, Sital Prasad Jadav and Surhaiya Kora had against them their own confessions in addition to the evidence of the approver and the evidence of identification of witnesses at one or more of the dacoities. Thus in their cases there was reliable evidence for a conviction. The other appellants whose convictions are being upheld, namely, Hari Lal, Lakhan Lal, Polo alias Palakdhari Singh and Saukhi Rai had against them not only the evidence of the approver, but reliable evidence of identification at one or more of the dacoities. Therefore, in the case of these 7 men, the tainted evidence of the approver found corroboration in material particulars by the reliable evidence of identification in some cases and in others in addition by the confessions of the appellants themselves. The appellant Mukhlal Gareri made no confession and it would be necessary, therefore, to examine the refracted confessions of Surhaiya Kora and Achhay Lal Singh and the evidence of the approver with very great care. In addition, it would be essential to see how far the evidence of identification by p.w 16 Safdar and p.w 33 Saleem is reliable and fit to be acted upon.

I have given this appellant's case my anxious consideration for I feel that in offences of the kind disclosed by the evidence in this case no culprit should escape punishment; at the same time to convict means serious consequences for an accused person and I am not satisfied in my own mind that I could with safety act upon the evidence on this record against this appellant and I would give him the benefit of a reasonable doubt, would accordingly allow his appeal, set aside his conviction and sentence and acquit him.

S.H

Order accordingly.