Achhay Lal Singh and Others vs Emperor

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 Kishore Dhawal, was convicted of having taken part in one or more dacoities and, with the exception of Shital 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 10th October 1942 at Matadih. Two more were committed on the following night, one at Bungalwa 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 13th October 1942. In the dacoity at Bungalwa and also in the dacoity at Gaura, fire-arms were used. At Bungalwa 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 gangs who committed these dacoities were in military uniform and at first it was suspected that some of the ring leaders of the dacoities had been soldiers from a camp near Jamalpur. The theory was however soon exploded and the attention of the police was directed to the appellant Achhai Lal Singh. This man belongs to Dariyapur 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 24-10-1942, 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 4-11-1942 and the day following made a confession to the Sub-Divisional Magistrate. After Achhai Lal 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 appellant, Shital Prasad Jadav, was arrested at Bahadurganj in the district of Purnea. This was on the 1-11-1942, and on 8-11-1942, this appellant also made a statement to a Magistrate at Kishanganj. In this he did not confess to have 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 6-11-1942, and on 12-11-1942, 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 21-11-1942, and on 26-11-1942, made a confession to a Magistrate. The appellant Surhaiya Kara, 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 11-3-1943. A pardon was eventually tendered to Jhaksa Gorhi and he gave evidence at the trial in the Court of Session. He wag 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 this evidence to the most searching and critical analysis and came to the conclusion that he had in fact taken part in 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 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 ho is said to have participated. This, it may be said, was quite clearly recognised by the learned Additional Sessions Judge.

Achhai Lal Singh belongs to a respectable and a fairly well-to-do family and is a young man of some education. In his confession he said that in or about the year 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 the year 1941, Achhai Lal Singh went to Jabbalpur and enlisted in the army. According to him, he did so at the instance of Lakhan Lal and another prominent member of the socialist party, one Basawan Singh, the idea of these two men being that he should take this opportunity of learning how to use fire-arms in order that when a revolution broke out, he might prove a valuable asset to their party. Achhai Lal 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 29-8-1942, 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 Lal Singh waited until he could draw such pay as was due to him and then deserted on or about 13-9-1942. Three other sepoys deserted along with him and all of them came to Achhai Lal Singh''s home in village Daryapur. Within a very few days however they decided to leave Daryapur and live in a cave on the top 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 26-10.1942 Achhai Lal 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 Lal Singh said that Lakhan Lal and Basawan Singh in order to raise money with which to procure fire-arms and generally further 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 Lal Singh, this decision was taken on or about the 24-9-1942, and it was in pursuance of it that the dacoities at Matadih, Bungalwa, Saradhi and Gaura were subsequently committed. The confession of Achhai Lal Singh can be taken into consideration as against the 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 circumstances that certain of the appellants were shown to have taken part in two or more of these dacoities and the circumstances that the modus operandi of the dacoits in each of the four dacoities was very much the same. Mr. Baldeo Sahay appearing for certain of the appellants said that the object of the conspiracy was not to commit dacoity but to effect a change in the Government by means of physical force. It may well be that Lakhan Lal and Achhai Lal Singh and some other of 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 that some of the dacoits carried bombs with them. There is, for instance, evidence that Achhai Lal 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 1-12-1942, a bomb was found in his possession. Jhaksa Gorhi and Kaila Chamar and some other at least of the appellants are not men who seem to take or 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 Lal Singh and some of the other conspirators. I am unable to agree with the contention put forward by Babu Baldeo Sahai, and I am of the opinion that the inference to be drawn from the confession of Achhai Lal 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 Jamalpur. 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 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 the 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 appeal of the case further.

The case of Nawal Kishore Dhawal however stands on a different footing. Nawal Kishore Dhawal is the editor of a Hindi daily published from 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 Kishanganj. These letters however in each case were 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 relation of some kind with Lakhan Lal. The other circumstances on which the learned Additional Sessions Judge relied was that, to use his own expression, "the house of Nawal Kishore Dhawal at Monghyr was the headquarters of the conspiracy". It is true that when the house was raided on 26-10-1942, 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 also the appellant Shital Prasad Jadav seem to have lived with Nawal Kishore Dhawal. Jhaksh Gorhi however made it clear that when he went to the house to meet Sajiwan Dhanuk he did not meet or came in contact with Nawal Kishore Dhawal prior to 23-10-1942, or thereabouts, by which time the dacoities had already been committed. Jhaksa Gorhi described a meeting of the conspirators which took place in Nawal Kishore''s house on or about the date and at which Nawal Kishore was present. According to him, the conspirators then decided to leave the neighbourhood of Monghyr and Jamalpur 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 was sent to Purnea to ascertain where dacoities could suitably be committed there and had returned before this meeting was held. If there was also evidence to show that dacoity or dacoities were actually committed there 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 more or less into hiding. No one of Purnea was called to say that he had seen this appellant there, and Nawal Kishore seems to have returned from Purnea after a comparatively short interval as he was apprehended in Monghyr on 15-11-1942. When no overt act in pursuance of the conspiracy was done by this appellant, and when on the evidence of Jhaksa Gorhi it appeared that he had not joined the conspiracy until Achhai Lal 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 the 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 because ha was privy to their plans that when the police got on 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 Achhai Lal Singh rests mainly, if not wholly, on his own confession. This confession was retracted by him at his trial. Nevertheless if it was a voluntary confession and was rightly admitted into evidence, and if it was also a true confession, there is no reason why a conviction should not be based on it. The appellant endeavoured to get rid of the confession by asserting that he had never made it. On 25-10-1942, when he was brought to Monghyr, an order was made by the Sub-divisional Magistrate remanding him to police custody for 15 days. Except during three days he remained in police custody until 8-11-1943. On 3-11-1942, he was produced before the Sub-divisional Magistrate, and the Sub-divisional Magistrate was given to understand that he would make a confession. The Sub-divisional Magistrate instead of recording his confession forthwith, made an order remanding him to Court hajat. According to Rai Bahadur N.K. Banerjee, the Sub-divisional Magistrate, he was brought from the Court hajat to him at his bungalow between 9 and 10 a.m. on the next day. The Rai Bahadur said that he then put him in charge of his orderly peon one Tara. Two or three hours later he sent for him and having satisfied himself that he was anxious to make a confession he began to record it at about 12 noon and continued recording it till nightfall. He resumed the recording of it at 8.30 a.m. the following day and completed it at about noon. Achhai Lal Singh in a written statement which he put in admitted that he had been produced before the Sub-divisional Magistrate on 3-11-1942, and that he had then been temporarily removed from the custody of the police and placed in the Court hajat. He said, however, that some time after dark on 3-11-1942, he had been removed from the Court hajat and taken to the Superintendent of Police, Mr. C.M. Jha. There he had, he said, been brutally assaulted. One of his wrists, he said, was broken with the blow of the stick and he was prodded on the right knee with a bayonet. Prom the bungalow he was, he said, taken to the town police station and there at the point of gun he was compelled to put his signature on a blank piece of paper. According to him the Sub-divisional Magistrate was at his bungalow when he was assaulted and subsequently made out the confession, using statement which bad previously been obtained from him through intimidation and the sheet of paper on which he had been compelled to put his signature.

In this statement Achhai Lal also said that prior to this incident at the bungalow of the Superintendent of Police he had been taken into a remote part of the jungle and there assaulted by a number of soldiers, some of whom had struck him with butt end of their rifles'' and other of whom had prodded him with their bayonet. If Achhai Lal Singh was in fact subjected to maltreatment of this kind he ought to have had little difficulty in showing it. It is, for instance, most unlikely that he would have been admitted to the jail without the Superintendent taking the precaution-of making a note of any injuries on his person. The defence called for the diary of the Sub-divisional Magistrate and relied on the entries purporting to show that he took his seat in the Court at 11 a.m. on 4-11-1942, and also on 5-11-1942 and that on 4-11-1942 he sat till 6-10 p.m. It was apparently contended that if Rai Bahadur N.K. Banerjee was in Court from 11 a.m. to 6-10 p.m. on 4-11-1942 his statement that he began to record the confession of Achhai Lal Singh at mid-day at his house and continued recording that till dark must necessarily be untrue. Apart from recording the confession Rai Bahadur N.K. Banerjee did not, so far as appears from the diary, do any other magisterial works on 4-11-1942 except to examine two persons who lodged petitions of complaint. Although the Rai Bahadur was not in the Court premises after midday he was nevertheless engaged in magisterial work while recording the confession of Achhai Lal Singh: and even if his bench clerk or he himself made an entry purporting to show that his Court rose at 6-10 p.m. the entry cannot be said to be incorrect. As to the entry made in the diary on 5-11.1942 it may be either thai the entry is not accurate or that the Rai Bahadur''s recollection as to how long it took him to complete the recording of the confession was at fault. The point is not, in my opinion, one of any importance whatever.

Mr. Baldeo Sahai for the appellant did not make any attempt to show that the confession was in fact a forgery. What he really contended was that a statement or statements were obtained from Achhai Lal Singh by the police by means of lengthy interrogation and also perhaps by means of violence and that Achhai Lal Singh merely made these statements to the Sub-divisional Magistrate. The confession, Mr. Baldeo Sahai contended, ought to have been excluded on the ground that at the time it was made the undue influence which had been exercised by the police was not effectually removed. Mr. C.M. Jha, the Superintendent of Police, admitted that Achhai Lal Singh was brought to him at 4 a.m. on 26th, October 1942. Shortly afterwards the Superintendent of Police gave direction for the arrest of one of the conspirators, Sajiwan Dhanuk. This man was apprehended and later he and Achhai Lal Singh were taken to Jamalpur and Achhai Lal Singh there showed the Superintendent of Police the cave in which the stolen bombs had been concealed. The conduct of Sub-Inspector Gopi Kant Thakur in taking Achhai Lal Singh to Mr. CM, Jha at 4 a.m. and the conduct of Mr. Jha in shortly afterwards issuing direction for the arrest of Sajiwan Dhanuk go a long way, in my opinion, to show that Sub-Inspector Gopi Kant Thakur was telling the truth when ho said that shortly after Achhai Lal Singh reached Monghyr on 25th October 1942, he made a statement to him the recording of which occupied him until 2 or 3 a.m. The learned advocate for the appellant placed a great deal of reliance on two entries made in the station diary of the mofassil police station. One of these showed that Achhai Lall Singh was taken from the police station to the bungalow of the Superintendent of Police at 9 a.m. on 26th October 1942, and other that he was brought back to the police station at 11-30 p.m. on 27th October 1942. I find it extremely difficult to believe that Achhai Lal Singh was really kept at the bungalow of the Superintendent of Police for so long a period continuously and I observe that in his written statement Achhai Lal Singh said or implied that on 26th October 1942 he was taken back to the mofassil police station and that he spent the night there. No entry was apparently made in the station diary when he was taken to the bungalow of the Superintendent of Police at 4 a.m. on 26th October 1942, and the indications, to my mind, are that no entry was made in the diary when he was brought back to the police station sometime that night after the recovery of the bomb. It may be that Achhai Lal Singh was subjected to a lengthy interrogation by various police officers, but it is impossible on this evidence to say that undue pressure was brought to bear on him, still less, that any violence was actually used to him. It has also to be remembered that Achhai Lal Singh being a deserter from the army and also having been in touch with Baswan Singh and other men of that type the police might well wish to interrogate him about other matter beside these dacoities and the conspiracy which led to them. The intrinsic confession afforded by the confession itself, which is a very lengthy document does not at all suggest that Achhai Lal Singh was merely repeating statements which had at different times been obtained from him by undue pressure by the police. On the contrary, the carefully detailed records of the incidents and events, as they took place in chronological order, rather suggest that Achhai Lal Singh had himself given a good deal of time and thought as to what he was to say to the Sub-divisional Magistrate. I am satisfied that the aspersions which were cast on the Sub-divisional Magistrate were wholly unfounded and that he took the precautions which, at the time he thought most suitable, to ensure that Achhai Lal Singh should have ample time to reflect on the consequences of what he was doing before he proceeded to record his confession. The prosecution, in my opinion, discharged the onus which was on it to show that the confession was a voluntary one.

The question then arises as to whether it-was a truthful confession. The confession is so lengthy and circumstantial one that it is extremely difficult to believe that it is not a substantially true one. Applying however the test which is usually applied to a confession which has been retracted namely to see whether there is a corroboration of any of the incriminatory statements contained in it, it is, I think, clear that this confession satisfies the test. There is for instance the circumstances that on 26-10-1942 Achhai Lal Singh took the Superintendent of Police to the caves in the hills near Jamalpur and showed him a large number of boxes containing bombs and hand grenades. Mr. Baldeo Sahai for the appellant was forced to concede that this was a strong piece of corroboration, but contended that it merely went to show that Achhai Lal Singh had been privy to the stealing of bombs or hand grenades but not necessarily that he had taken part in any of the dacoities. It is quite clear that among those who took part in the dacoities were several men who were dressed in military uniforms and that when Achhai Lall Singh deserted from the army other sepoys deserted along with him. It is in the highest degree unlikely that the other sepoys who deserted along with Achhai Lal Singh and came with him to Daryapur took part in these dacoities and he himself did not take any part at all. I very much doubt if before acting on a confession a Court would feel bound to seek for other corroboration. In any case, there is such corroboration in the evidence of Bhagwat Singh (p.w. 66) who came across the dacoits in the jungle on the day before the dacoity at Gaura was committed. This man said that one of the dacoits whom he recognised as Achhai Lal Singh, came up to him and asked him where he and his companions could find water. Bhagwat Singh said that he had directed them to a small stream. According to him Achhai Lal Singh and himself had had a conversation lasting for 5 or 10 minutes, and"in the course of it Achhai Lal Singh had shown him a bomb which he was carrying and told him what it was. There is no doubt but that Bhagwat Singh and some other men did coma across the dacoits on the day before the dacoity at Gaura was committed as the presence of suspicious characters in the jungle was reported at the police station and a Sub-Inspector proceeded to the jungle in order to try and round them up. In fact, the Sub-Inspector seems at first to have distrusted Bhagwat Singh''s story as he arrested him. That Bhagwat Singh was not mistaken in saying that Achhai Lal Singh was the man with whom he had had the conversations in the jungle and who had shown him the bomb is shown by the circumstances that he picked him out at a test identification. The conduct of the police in not putting Achhai Lal Singh at other test identifications at which the victims of the dacoities and their neighbours were asked to pick out suspects has been criticised. Presumably, however, the reason why this was not done was that Achhai Lal Singh was dressed in uniform and that this would have made it extremely difficult for these persons to recognise him again. Bhagwat Singh had however seen him in daylight and had had a somewhat lengthy conversation with him which, no doubt, made it easy for him to pick him out. The confession of Achhai Lal. Singh is, in my judgment, not merely a voluntary but also a true confession and is sufficient by itself to justify his conviction. This appellant has, I have no doubt, been rightly convicted and his appeal must be dismissed. [After considering the case of each of the appellants i.e., Lakhan Lal, Hari Lal Surhaiya Kora, Shital-Prasad Jadav, Polo Singh and Saukhi Rai and confirming their conviction His Lordship proceeded as follows:]

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 Bungalwa. 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 Bungalwa. 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 11-3-1943, 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 u/s 30, 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 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 bomb which he had stolen. In other words, there was already in existence evidence against him which would inevitably have led to his prosecution and might by itself have led to his 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, Kunjalal Ghose Vs. Emperor, . In that case however the statement made by one of the conspirators was made to a private individual and was made prior 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 Division Bench of the Lahore High Court in Mohammad v. Emperor AIR 1926 Lah. 54 That decision is perhaps more relevant. The only decision, however, I can find directly applicable is a decision of Judge of the Chief Court of Oudh sitting singly, Satdeo v. Emperor AIR 1936 Oudh 164. 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 conspirator 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 presupposes the existence of a conspiracy at the time when the statement in question is made and does not contemplate confessional statement 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.

My learned brother has in a separate judgment dealt at length with the case of the remaining appellant, Mukhlal Gareri. I have for sometime now, and for more than one reason, thought it desirable that the law should be amended and an accused person should be permitted to go into the witness-box and give evidence. If it had been possible for the Public Prosecutor to cross-examine Mukhlal Gareri, I strongly suspect myself that his story that Safdar Mian (P.W. 16) and Saleem Mian (P.W. 33) had a grudge against him as they had not paid the whole of the amounts which they thought to be due to them for the hire of their carts at the Amjhar Camp, would have been shown to be untrue. Safdar Mian (P.W. 16) was shown document (exhibit B) as soon as his cross examination began and without any kind of preliminary warning as to what it was. It is so common for a man of this class to try and evade cross-examination that it is, I think, dangerous to draw too elaborate inferences from one or two untruths he may have told in trying to do so. Much depends on his demeanour when in the witness-box, and apparently the trial Judge and the assessors did not find it unsatisfactory. The difficulty, however, which my learned brother finds in the evidence of this man and of his companion, Saleem Mian (P.W. S3) certainly exists, and we cannot also ignore the fact that the Public Prosecutor did not avail himself of an opportunity to remove it when he omitted to cross-examine Kesho Pasban (P.W. 72) and the other two search-witnesses. The approver Jhaksa Gorhi, both in his confession and in his evidence at the trial, ascribed a very definite part in the commission of the dacoities at Bangalwa and Saradhi to this appellant. It is clear that the dacoity at Gaura had been planned before the dacoits set out for Bangalwa and Saradhi, and it is also clear that for some reason or other many of the dacoits were prepared to go to Bangalwa and Saradhi but not to Gaura. An incident of the kind which Jhaksa Gorhi described as having taken place bet ore the dacoits set out for Bangalawa and Sardhi, therefore, in all probability occurred, and I find it very difficult myself to believe that in describing it Jhaksa Gorhi deliberately ascribed a part in it to this appellant which has in fact been played by some other of the dacoits. It is not suggested that Jhaksa Gorhi, Achhai Lal Singh and Surhaiya Kora had any opportunity of collaborating before they made confession or that any one or more of them had a grudge against this appellant. What is suggested is that the Sub-Inspector, Gopi Kant Thakur, had a grudge against this appellant and, before each of these men made his confession, induced him to incriminate him. The incident which occurred on 30-9-1942, and which led to the prosecution of this appellant was, it appears from the judgment, of such a kind that it is difficult to understand how this sub-Inspector could have refrained from submitting a charge-sheet against Mukhlal Gareri if, indeed, it was he and not some other sub-inspector who submitted the charge-sheet, which the defence made no attempt at all to prove. In fairness to Sub-Inspector Gopi Kant Thakur I ought, I think, to say that I am not at all persuaded that there was any truth whatever in the aspersions which were made on him. On the contrary, I consider that he is deserving of credit for having unearthed a very dangerous conspiracy and brought some of the chief conspirators to justice. If, however, the evidence of Safdar Mian and Saleem Mian is to be discarded, and I am not prepared to say that my learned brother is in error in discarding it, there is nothing against this appellant but the evidence of the approver Jhaksa Gorhi and the retracted confessions of two other accomplices. I agree that the circumstances of this case are not such that it would be proper to deviate from the well-established rule and convict this appellant on that evidence and on nothing else.

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 Achhay Lal Singh, Hari Lal, Lakhan Lal, Sital 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 Baikunath 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 confession 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 confession 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 Hossain Biswas and Others Vs. Emperor, and Kashem Ali and Another Vs. 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 Achhai Lal and Surhaya 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 Mukhlal Gareri by witness Safdar and Saleem. Of the appellants whose convictions I have agreed to uphold Achhai 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 their convictions. 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 Mukh Lal Gareri made no confession and it would be necessary, therefore, to examine the retracted 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. (After discussing the evidence as against the appellant Mukh Lal Gareri his Lordship concluded as follows):

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. I would accordingly allow his appeal, set aside his conviction and sentence and acquit him