K.S. Nirmalkumarsinhji and Others vs State

Shah, C.J.—These are appeals against the conviction and sentence of the Appellants by the Additional Sessions Judge, Gondal, for offences

of dacoity and grievous hurt under Sections 395 and 326, Indian Penal Code. Of the Appellants, K.S. Nirmalukumar- sinhji original accused No.

1, is the younger brother of the Maharaja Saheb of Bhavnagar, and lives at Bhavnagar in his bungalow called Devi Bhuvan. Accused No. 2, Kathi

Bachu ''alias'' Manu Ram, is from Shedubhar, accused No. 3 Kanbi Purshottam Dhana is from Khijadia, and accused No. 4 Kalal Chunilal is from

Rikadia. Accused Nos. 5 and 6 are from Bhavnagar, accused No. 5 Kanji being the driver of accused No. 1, and accused No. 6 being his

Shikari.

There is a ''Gaushala'' and a bungalow attached to it at Bhavnagar owned by the Maharaja of Bhavnagar but managed by accused No. 1, and One

Abhesang the keeper and servant of the ''Gaushala'' lived in one of the rooms in the ''Gaushala''. The six accused are alleged to have committed

dacoity along with one Devayat, a dacoit belonging to the notorious gang of Bhupat, at village Rib at about nightfall on 10-1-1952, in the course of

which they fired guns and looted the. houses of eight Kanbis and caused grievous hurt by gunfire to Bai Dahi mother of Natha Pancha. The

property looted consisted of currency notes, silver rupee coins and coins of other denominations and gold and silver ornaments of the aggregate

value of Rs. 8540/-.

Bhupat and his gang had been terrorising'' the countryside in Saurashtra since a long time . and a prize of Rs. 50,000/- was put on the head of

Bhupat and the Inspector General of Police of Saurashtra State had issued an appeal to the general public of Saurashtra on 24-9-1951 with a

group photo of four outlaws of Bhupat''s gang of whom the one on the left was Devayat. It appears that Devayat had separated himself from

Bhupat''s gang since some ,time & had been taking shelter in different ''wadis'' of the villages of Shedubhar and Khijadia, and while doing so he

came in contact with accused No. 3 Purshottam and also of accused No. 2 Bachu, either independently or through Purshottam.

In about the middle of December 1951 or a few days earlier, Devayat was brought by accused No. 1 and lodged in the ''Gaushala'' bungalow &

he was treated as accused No. l''s guest, being known to the servants and Ors. as the ''Mehman''. From then onwards he lived in the ''Gaushala''

bungalow and the prosecution case is that accused Nos. 2 and 3 used to come there and meet accused No. 1 and Devayat. Accused No. 4 is

alleged to have come to the ''Gaushala'' on 9th January, the day previous to the offence, and met accused No. 1 when accused Nos. 2, 3 and

Devayat were also present, and on the information of accused No. 4 that a large booty could be expected if village Rib was looted, all of them

decided upon a dacoity at Rib on the next! day; and in pursuance thereof it was arranged to go to Rajkot in two batches, the first being of Bachu,

Purshottam and Chunilal who were to proceed in advance and the second of accused No. 1, Devayat, and accused Nos. 5 and 6 who were to

come by car

In pursuance of this plan, It is alleged that accused Nos. 2, 3 and 4 came to Rajkot in the late morning of 10-1-1952, but the evidence is that two

had come, viz., accused No. 2 and Anr. , who has not been identified. The remaining four persons started in accused No. l''s car, which is a station

van and has been referred to as ''Khatari'', in the case,''in the morning of the 10th reaching Rajkot in the afternoon at about 1 or 2 p.m. Accused

No. 2 Bachu is the maternal uncle''s son of Valbai, widow of Vira Khachar, and the said accused and Ors. stopped at her bungalow at Rajkot till

about 6-30 p.m. and then left in the ''Khatari'' of accused No. 1. Rib is about 13 to 14 miles from Rajkot and they reached the village at about 7-

15 p.m. The ''Khatari'' was taken right beyond Rib and was parked some distance away from the village, and five of the occupants, it is alleged, of

whom three including Devayat were armed with rifles entered the village.

Devayat and two Ors. went to the village ''chawky'' and caught hold of Chhagan Govind, the ''Pasaita'' of the village, who was having his meals- in

his room and forced him to accompany them. They were joined by two more and all the five then entered the ''Dehli'' of Natha Pancha. On seeing''

the intruders, Dahi the mother of Natha closed the doors, but one of the culprits fired his gun at the door which forced the door open and also

caused serious hurt to Dahi. They entered the house and looted gold and silver ornaments and'' thereafter they looted the houses of seven more

persons, and then left the village after about an hour. They were firing their rifles both during the looting operation and while leaving the village and

then decamped in the ''Khatari''. They also cut the telephone line from Ribda to Gondal which appears to have been done on the return journey.

One Khumansang Umedsang, who was a writer constable in the office of the Deputy Superintendent of Police at Gondal and who belonged to

Rib, had come to Rib on a cycle that evening and was in the village at the time of this occurrence. After the dacoits left Chhagan and Khumansang

started on bycycles for Ribda, which is two miles from Rib and on the Rajkot-Gondal road, in order to inform the Head Constable of the police

outpost. On the way they met Bava Haridas and two Ors. who were coming towards Rib and Haridas then handed to Khumansang the price list,

Exh. 20, saying it had flown from the ''Khatari'' which was coming from the direction of Rib and had been picked up by him.

Khumansang and Chhagan could not find Head Constable Keshavlal at the police gate and so they tried to contact Gondal by telephone but found

that the Ribda Gondal line was not working, and as in the meantime Khumansang saw a car coming from the direction of Gondal, he stood on the

road and waved to the car to stop. The occupant of the car Mr. Jobanputra, who was the then Collector and District Magistrate of Madhya

Saurashtra, stopped the car. Khumansang told him that a dacoity had taken place at nib and he ''also showed to him the paper, Exh. 20, which

Haridas has given him, and also two cases of cartridges which he had picked up from Rib village.

Mr. Jobanputra thereupon immediately drove back to Gondal taking Khumansang with him and met Mr. Thakkar the Deputy Superintendent of

Police. Khumansang gave the paper as also the two cartridges to Mr. Thakkar, but Mr. Thakkar gave them back to Khumansang for producing

them in the course of the investigation. Mr. Jobanputra then drove back to Rib and was followed by Mr. Thakkar and other police officers. The

District Superintendent of Police, Mr. Megha, who had in the meantime received a message from the Deputy Collector of Gondal also proceeded

to Rib from Rajkot.

Chhagan Pasaita, who had remained at Ribda, in the meantime contacted Head Constable Keshavlal and informed him of the dacoity but before

forwarding the occurrence report Keshavlal contacted the Station Master of Ribda and sent a telephone message through the Station Master,

Gondal, to the Police Station Officer at Gondal, and this message was duly recorded by the latter. He then took down the information of Chhagan

in the outpost register and went to Rib with Chhagan. Sub-Inspector Narvirsinh of Gondal, who was among the police officers who had reached

Rib, then recorded the first information of Chhagan, Exh. 4, which was a copy of the information recorded by Keshavlal, and commenced the

investigation, and there has been some controversy as to which information is to be treated as the first information.

The investigation was taken over by Police Inspector Kantilal Shukla, and among the earliest persons to be examine in the course of investigation

were Bava Haridas, the two Harijans Raja Gova and Teja Tabha and Khumansang. Chhagan''s supplementary statement was also recorded. The

''panchnamas'' of the houses of persons who had been robbed were duly made and twenty cases of fired cartridges and one live cartridge, which

had been found lying at different places in the village were taken possession of by the case under a ''panchnama''. A ''panchnama'' of the piaces

where the ''Khatari'' was parked and where the telephone wire was cut and from where the ''Khatari'' had taken to the trunk road was drawn up

and photographs of the marks of the tyres were also taken.

Mr. Thakkar went to Bhavnagar on 18-1- 1952 in order to locate the ''Khatari'', but could hot find it, and he succeeded in seeing the ''Khatari''

when he went there the second time on 28th January. The bungalow of accused No. 1 was searched on 3rd February and a number of firearms

and cartridges were found in the bungalow. Some of the cartridges, viz., Eley Grand Prix, bore the same mark as some of the cases of the fired

cartridges which were found in village Rib. The price list, Exh. 20, had been given to accused No. 1 by one Jayantilal, the Service Manager of the

Bombay Garage at Rajkot, whom accused No. 1 had met in the afternoon of the 10th January, and the said Jayantilal identified accused No. 1 on

the 8th February at Devi Bhuvan in Bhavnagar. Accused No. 1 was arrested on the same day. As he expressed a desire to meet the Inspector

General of Police, he was brought down to Rajkot and on information supplied by him Devayat was tracked down tod was shot in an enoounter

which took place between the police and Devayat on the outskirts of Bhadli village in the evening of 9th February and in the course of a renewed

encounter which, took place next morning Devayat was killed.

The remaining accused were arrested shortly after, and of them accused Nos. 5 and 6 later made confessions. The police investigation revealed

that gold and silver ornaments had been broken up and melted and while the silver in got, was sold, the gold one and rupee coins were with, one

Pranjivan. All the three items were recovered by the police.

The accused were then tried for the above- said offences. The defence of accused No. 1 was a wholesale denial of all the facts except that he

admitted in the Sessions Court that Devayat was killed on information given by him to the Inspector General of Police. The defence of the

remaining accused too was a complete denial of all the material allegations and they pleaded that, they had nothing to do with the offence. The trial

ended in the conviction of all the accused under Sections 395 & 326, Indian Penal Code The charge of using, a deadly weapon or of causing

grievous hurt at the time of committing the dacoity was not proved against any particular accused and they were therefore not held liable to the

punishment u/s 397, Indian Penal Code The charge u/s 19(e), Indian. Arms Act too was not proved against any of the- accused persons.

Accused No. 1 was convicted under Sections 395 and 326, Indian Penal Code and was sentenced to six years'' rigorous imprisonment and a fine

of Rs. 2000/- in. default six months'' further rigorous imprisonment for grievous hurt. Accused Nos. 2, 3, 4 and 6 were: convicted of the abovesaid

offences and sentenced to five years'' rigorous imprisonment and one. year''s rigorous imprisonment respectively, and accused No. 5 was

convicted of the same and sentenced to four years'' rigorous imprisonment & one year''s rigorous imprisonment respectively, the substantive

sentences in the case of ail the accused being ordered to run concurrently.

On appeal Mr. Somji the learned Counsel who appeared for accused No. 1 and the learned advocates of the remaining accused have not

disputed the fact of the dacoity and therefore no detailed reference need be made to the evidence relating to the actual looting of the houses of

Natha and Ors. and the carrying away of valuable property, except where it might become necessary in other context, and I will therefore deal,

directly with the evidence against each of the- accuse-d. Accused No. 1 has not been identified by any of the victims of the dacoity and the

evidence against him is circumstantial in the main.The first of these is his association with Devayat. since about three weeks prior to the offence

and. even thereafter and this association becomes material since it has been proved conclusively that Devayat was one of the dacoits who took

part, in the present offence.

As to this association with Devayat, the first witness is Abhesang, the servant of the ''Gaushala'' whose evidence recorded in the committing

Magistrate''s Court and admitted in the Sessions Court, u/s 288, Code of Criminal Procedure is that in about the middle of December, according

to the witness''s; estimate of time, accused No, 2 Bachu came to the office of the ''Gaushala'' and saw accused No. 1 and told him that he had a

friend Purshottam,. accused No. 3, and that Devayat was at Purshot- tam''s ''wadi''. Purshottam was then called by accused No. 1, and after

consultation with him, accused No. 1 sent Abhesang and accused No. 1 with two sealed packets and these were delivered to Devayat at

Purshottam''s ''wadi''. Later accused No. I went in his ''Khatari'', along with Abhesang .and Purshottam and with his driver Kanji accused No. 5 to

Purshottam''s ''wadi'' at Khijadia and from there traced Devayat who was at the ''wadi'' of Anr. Kanbi and brought him to Bhavnagarana lodged

him in the bungalow of the Gaushala.

The servants were ordered to look after Devayat who was referred to as the ''Mehman'' (guest). Abhesang has also deposed to the subsequent

events in the course of which accused No. 4 Chunilal came to the ''Gaushala'' bungalow on 9th January, the day previous to the offence, with news

that a large booty of about rupees ten to fifteen thousand was likely to be realised if Rib was looted. Chunilal, incidentally, was married at Rib and

the suggestion is that he therefore knew who the substantial people of that village were. Abhesang deposes to consultations at which

Nirmalkumarsinhji, Devayat, Chunilal as also Bachu and Purshottam (accused Nos. 2 and 3), were present, and the dacoity at Rib was then

decided upon by them.''The witness gave a detailed account of this incident and some more information in his evidence in the committing Court, but

he resiled from it completely in the Sessions Court and denied that any ''Mehman'' had at all come to the ''Gaushala'' bungalow or stopped there,

and also denied certain other facts and was thereupon treated as a hostile witness and permitted to be cross-examined.

Thereafter he denied almost every fact. He was referred to his evidence given in the Court of the Shihor Magistrate in connection with Anr.

dacoity, in which certain preliminary incidents were alleged to be common, and he denied having made any such statements at all. He was then

cross-examined in reference to his evidence in the committing Magistrate''s Court in this case, and to questions relating to accused No. 1 having

brought Devayat from the ''wadis'' of Shedubhar, to which he made a complete denial saying either he had not made the statements, or if he made

them that was on account of police pressure and beating.

On his cross-examination being resumed on the next day, however, he admitted having made the statements put to him from his evidence in the

committing Court but alleged that he had done so on account of the threats of beating given by the police. He was also questioned independently

and he denied several other facts. A perusal of his evidence in the Sessions Court makes it perfectly clear that he has been tampered with by the

defence and that accounts for his complete change of front and the denial of even obvious facts. In the circumstances the learned Judge was

justified in bringing on record the witness''s statement in the committing Court u/s 288, Code of Criminal Procedure and treating it as substantive

evidence.

However, the objection of Mr. Somji was to the evidence of Abhesang in the Court of the Shihor Magistrate being allowed to be referred to.

As the learned Judge has himself stated, certain statements which have been marked in red ink were permitted to be referred to and put on the

record for purposes of corroboration u/s 157, Indian Evidence Act, but the learned Judge does not say in terms which testimony of the witness

was sought to be corroborated by referring to the witness''s statements in the Shihor tourt. Abhesang was examined in the committing, Court on 5-

5-1952, whereas he was examined in the Shihor Court on 7th and 8th June 1952, so that if corroboration of his testimony in the committing Court

was sought, from the statement , to the Shihor Court, the latter being a subsequent statement, Section 157, which stipulates that the statement to be

referred to should be a former statement, apart from the other requirements, does not apply and the statements in the Shihor Court cannot be

referred to for purposes of corroboration.

No doubt Abhesang''s evidence in the Sessions Court was subsequent to his evidence in the Shihor Court, but he has admitted nothing in the

Sessions Court and his evidence is a complete denial of all facts and therefore the statements in the Shihor Court cannot obviously be proved for

purposes of corroboration. Mr. Shah for the State has seen the futility of employing the statements in the Shihor Court for the purposes of

corroboration and has now conceded that he does not seek to prove those statements for purposes of corroboration. The learned Judge was

evidently not right in allowing these statements to be proved u/s 157, of the Indian Evidence Act and we will keep out these statements altogether

from consideration. Mr. Shah has however urged that he could rely upon these statements for purposes of contradiction of the evidence given by

Abhesang in the Sessions Court in order to show which of the two statements of Abhesang, viz., the one in the committing Court or the one in the

Sessions Court should be preferred.

This however appears to me to be an afterthought, and although technically that might be permitted, the statements in the Shihor Court were not

sought to be proved for that purpose and they must be taken as not properly admitted in evidence. However this does not really affect the situation

because the statement in the committing Court is on the record as substantive evidence, and if the question is which testimony of the witness is to

be preferred then there is abundant material in the case to prove that Abhesang''s evidence in the committing Court is true, and must be preferred

to his denials and completely inconsistent statements made in the Sessions Court.

Mr. Somji''s next contention was that Abhesang''s evidence in the committing Court having been brought on the record u/s 288, Code of

Criminal Procedure after he was treated as a hostile witness, it suffers from the defect, viz., that on the prosecution''s own showing the witness was

untrustworthy and therefore his evidence in the committing Court should not be believed unless it was'' corroborated by other evidence. The

contention is, in our opinion, not correct. Under the Section the evidence of the witness in the committing Court may be treated as evidence in the

case for all purposes subject to the provisions of the Indian Evidence Act.

If the witness resiles from his previous statement made in the committing Court and the Court is satisfied that that statement is true, and what he

says in the Sessions Court is not so, then the Court can act upon that statement even in the absence of corroboration. In fact as a matter of law no

corroboration of such a statement is necessary, though the amount of weight to be attached to such evidence is a matter to be decided by the

Court on the facts of each particular case. The evidence admitted u/s 288, Code of Criminal Procedure is substantive evidence quite as much as

any other evidence in the case, & a conviction could even be based on such evidence, though certain decisions of the High Courts lay down that as

a matter of caution such evidence should require corroboration.

The Bombay High Court has held in - ''Maruti v. Emperor'' AIR 1922 Bom 108 (A), that

Section 288 makes statements brought on the record under the said Section substantive evidence of the facts therein deposed to, but it was

considered necessary that there should be some reason why such evidence should be preferred. That however was a matter of prudence and not

of law. In - ''Basappa v. Emperor'' AIR 1925 Bom 266 (B), it was held that if a witness changes the version before the Sessions Judge, his

evidence in the committing Court should be accepted with more caution than the evidence of a witness who adheres in the Sessions Court to what

he has � deposed in the Court of the committing Magistrate.

The question has been considered in some detail in - ''Shamira Mandu v. Emperor'' AIR 1946 Lah 380 (C), and the previous authorities on

the point have been reviewed. It was there contended that when the prosecution declares a witness to be hostile and cross-examines such a

witness as such, the prosecution cannot use the statement of such a witness and base a. conviction on the testimony of that or similar witnesses,

and that where a witness makes two inconsistent statements his testimony is not entitled to much weight, if any at all. Dealing with this point, Ram

Lall J. observed:

The proposition of law then is this that a statement of a witness made before the Committing Magistrate duly transferred to the Sessions record u/s

288 is substantive evidence for all purposes but as a matter of caution requires corroboration. As an abstract proposition this may in a large

number of cases be accepted as true but corroboration can be found in the circumstances surrounding a case and it has been consistently held by

this Court that corroboration as a matter of law is not required.

After reviewing the decisions on the subject his Iiordship further observed:

Having regard to the state of the authorities it appears to me to be clear that as a matter of law no corroboration of any kind is required If the

Judge is satisfied that the earlier statement is true.

Bhandari J. in a separate judgment considered the value of the witness''s evidence admitted u/s 288, and said that in such a case the question arises

whether a person who is capable of uttering a deliberate falsehood on one occasion can be relied upon on Anr. occasion. This was a question,

according to the learned Judge, which may arise in the case of any witness, whether his statement has or has not been transferred u/s 288.

Referring to the maxim, '' ""He who speaks falsely on one point will speak falsely upon all"", the learned Judge said that the maxim was not true to

human nature, because it was impossible to assert that a person who told a single lie was necessarily lying throughout his testimony. He observed:

If the Court is prepared to believe that having regard to all the circumstances of the case, the statement made by a witness before the Committing

Magistrate represents a correct statement of the facts to which he has deposed, it is obvious that corroboration would be a surplusage. The

proposition that it is an absolute rule of law that the Court cannot or should not act on the uncorroborated testimony of a ""Witness whose

statement has been transferred u/s 288, Code of Criminal Procedure is in my opinion, wholly misconceived. The law does not impose letters on the

discretion of the Court and it does not indicate the grooves in which the discretion should run. The maximum limit to which I should be prepared to

go is that the uncorroborated testimony of a witness who has mad(c) utterly contradictory statements on two ,or more different occasions should

be examined with care. If, in the result, it convinces the Court that the statement made by him on the previous occasion was correct, the Court

should accept the statement even though it is entirely lacking In corroboration.

In - AIR 1940 340 (Nagpur) , the view taken was that the evidence transferred oh the record u/s 288, Code of Criminal Procedure is on the

same footing with all other evidence in the case for all purposes and it is not necessary that there should be corroboration of those statements

otherwise. In Anr. case - AIR 1949 254 (Nagpur) , the Nagpur High Court again took the same vie?/ and held that the evidence brought on the

record u/s 288 is a good evidence and does not require corroboration from other sources and that if the Court finds that the evidence given before

the committing Court was true it can act upon it in preference to the one given before it. It further held that as a matter of practice it was desirable

to put the previous deposition to the resiling witness. This latter point has been the subject of a decision by the Supreme Court in - Tara Singh Vs.

The State, . Bose J. who delivered the judgment of the Court observed with reference to the meaning of the words ""subject to the provisions of the

Indian Evidence Act"":

The evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required

by Section 145, Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be

used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the

prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the

witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive

evidence u/s 288.

This requirement has been duly complied with in the present case and Abhesang has been confronted with those parts of his evidence in the1

committing Court which were to be used for the purpose of contradicting him. The position therefore is that as a matter of law no corroboration is

necessary to the evidence of the witness admitted u/s 288, Code of Criminal Procedure though by way of caution corroboration"" should be sought

from other evidence.

Another objection to which Abhesang''s evidence was subjected by Mr. Somji was that Abhesang was an accomplice and that his evidence

cannot be believed unless it was corroborated In material particulars both as to the circumstances relating to the dacoity and to the identity of the

accused persons. I will deal with this objection at a later stage but may observe here that Abhesang is not an accomplice and that his evidence

does not require corroboration on that score.

Reverting then to Abhesang''s evidence (in the committing Court Ex. 142), in so far as it relates to the bringing of Devayat to the Gaushala''

bungalow from the ''wadis'' of Shedu bhar and of his being, kept in the bungalow and treated as a ''Mehman'', there is firstly the testi- 60

Saurashtra mony of Ramji Manji, Ex. 140. This witness too had turned hostile and his evidence in the committing Court was brought on record.

Being substantive evidence, it can corroborate the evidence of Anr. witness though it might have been brought on record u/s 288, Code of

Criminal Procedure The question after all is one of appraising the evidence and if the Court is satisfied that the evidence is true it is open to it to rely

upon it and treat it as corroboration. This proposition was impliedly .conceded in - Abdul Gani Bhuya Vs. Emperor, . (His Lordship considered

further evidence and proceeded:)

(15-23) Mr. Somj''i also laid stress on the fact that the first information, Ex. 4, made no mention of Ex. 20 or of its having been shown to Mr.

Jobanputra or to Mr. Thakkar. Now the facts relating to the first information are that after Khumansing was taken by Mr. Jobanputra in his car to

Gondal, Chhagan Pasayata contacted Keshavlal, the police Head Constable of Ribda, and Keshavlal sent a telephone message from Ribda

Railway station to the Station Master of Gondal, who conveyed it to the Gondal City Police Station. It was received by Nathalal Gopalji Ex. 134

who in his turn conveyed it to Natuppa Kesubha of the Taluka Police Station Ex. 135 and he recorded it according to how he understood it. It is a

brief statement saying that information was received from Gondal City Head Constable Nathalal Gopalji that the Station Master of Gondal gave

information by phone that the Station Master of Ribda had sent a telegram that five or six dacoits had raided Rib and they were firing shots in the

village (Ex. 136).

There was some controversy as to whether this report should be treated as the first information and the learned Judge below appears to have

agreed that it was the first information. After sending the message through the Ribda Station Master, Keshavlal came back to Ribda and recorded

Chhagan''s statement in the outpost register book and despatched it with a village police to Gondal and himself went to Rib along with Chhagan.

By the time the village police man reached Gondal, the Police Officers had left Gondal and had come to Rib and among them was Narvirsing, the

Sub-inspector of the Taluka Police Station. He therefore made a copy of Chhagan''s statement recorded in the outpost register book and this has

been brought on record as Ex. 4 at the instance of the defence which contended that that was the first information and not the telephonic message

Ex. 136. Now a telephonic or a telegraphic message is not the first information according to law but it is unnecessary to enter into an academic

discussion of the point and Ex. 4 may be taken as the first information.

Mr. Somji''s objection to it was that it did not mention the fact of the price list Ex. 20. However it is an account of the incident which took place in

the village of Rib and it was given at a time when Khumansing was not present and had gone away with the Collector, Mr. Jobanputra, to Gondal.

Besides, its importance might not have been realised at the moment. Besides the omission to mention the fact relating to Ex. 20 in Ex. 4 may at the

most discredit the informant Chhagan, and not the Ors. viz., Khumansang, Haridas & Raja & Teja or Mr. Jobanputra and Mr. Thakkar. See -

''Emperor v. Rahemuddin Mondal'' AIR 1944 Cal 323 (H).

Nobody had then the faintest idea who the culprits were and there was no occasion whatever of concocting the story of the price list at the time. In

fact Haridas says that it was shown to him at the time his statement was recorded. The fact of the price list, as ""I have stated, had transpired almost

immediately after the offence and it is impossible to believe that the Collector Mr. Jobanputra, the Deputy Superintendent of Police Mr. Thakkar,

Khumansing, Haridas, Raja and Teja and Chhagan Pasayata conspired to get up the story of the price list having been picked up on the road and

handed to Khumansing and of Khumansing having shown it to the Officers. (His lordship further considered the evidence and proceeded:)

(24-28) There is thus ample cerroboration to the evidence of Abhesang in this case. Mr. Somji has urged that Abhesang was an accomplice and

that his evidence cannot be accepted .unless it is corroborated in material particulars both as to the various incidents of the occurrence and the

identity of the"" accused persons and in support of this plea, he has relied upon certain circumstances. It is urged that Abhesang was sent with two

sealed packets for being given to Devayat before Devayat was brought to the ''Gaushala''from the ''vadi'' of Shedubhar, that he used to feed

Devayat and otherwise attend on him, that he even took Devayat to Jasumati, that he heard the conversation on the storey of the ''Gaushala"" where

seven persons had collected and were planning the robbery of Rib and later left in his presence in two batches. Other circumstances stressed are

that, on their return accused No. 1 even, told him that nothing substantial had been realised from the dacoity and further, that Abhesang had

accompanied accused No. 1 for the melting of the gold and silver pieces.

These circumstances, however, do not make him an accomplice. He was after all a servant of accused No. 1 and lived in the ''Gaushala''

compound, and -ordinarily he would be expected to carry out the behests of his master. He was a man of accused No. l''s confidence and it is

probable that he did not object to his being near them when they were talking of raiding Rib and he might even have been asked to do other jobs

by accused No. 1. But these facts do not constitute him an accomplice. An accomplice means a guilty associate or partner in a crime, a person

participating in the crime or one concerned in the commission of the crime. The question as to who is an accomplice is considered in - AIR 1942

221 (Oudh) , and the observations of Thomas C. J. on the subject being material they bear a reproduction. The learned Judge observed:

An accomplice means a guilty associate or partner in crime, or who, in some way or other, is connected with the offence in question or who makes

admissions of facts showing that he had a conscious hand in the offence.

and further:

In my opinion the word ""accomplice"" is made at times to bear improperly a larger meaning than is permissible according to. its accepted

interpretation in law. An accomplice confesses himself a criminal who has been concerned in the commission of a crime, participes criminis,

whether he is concerned in the strict legal propriety as principal in the first or second degree, or merely as accessory before or after the fact. It is

well-settled law that all accessories before the fact, if they participate in the preparation for the crime, are accomplices, but if. their participation is

limited to the knowledge that a crime is to be committed they are not accomplices. Whether a person is or is not an accomplice depends upon the

facts in each particular case considered in connection with the nature of the crime, and persons to be accomplices must participate in the

commission of the same crime as the accused persons in a trial are charged. If the evidence of a witness falls short of these tests, he is not an

accomplice, and his testimony must be judged on principles applicable to ordinary witnesses. Where a witness is not concerned with the

commission of the crime for which the accused is charged, in my opinion, he cannot be said to be an accomplice in the crime.

In - Narain Chandra Biswas and Others Vs. Emperor, , it was held that where a witness is not concerned with the commission of the crime for

which the accused is charged, he cannot be said to be an accomplice in the crime as it is well settled that all accessories before the fact, if they

participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that crime is to be committed, they

are not accomplices. Whether a person is or is not an accomplice therefore depends upon the facts in each particular case considered in

connection with the nature of the crime; and persons to be accomplices must participate in the commission of the same crime as the accused

person, in a trial are charged.

This view is precisely the same as was taken in AIR 1942 221 (Oudh) In - ''Nga Pauk v. The King'' (K) it was held that although a person who

assists in the disposal of the dead body may become liable to punishment u/s 201, Penal Code, but that is quite Anr. offence, and helping to

dispose of the body of a man who had been murdered, without having taken any part in the murder itself, does not make a man an accomplice with

regard to the murder.

In - ''Nur Muhammad v. Emperor'' AIR 1925 Lah 253 (L), which was cited on behalf of the defence, the facts were that the witness was

found from his testimony to be privy to the crime alleged to be committed by the accused and his evidence was therefore treated as no better than

that of an accomplice. In - Hanumant Vs. The State of Madhya Pradesh, , also cited for the defence, the facts were again different. There the

witness Gadgil was himself a suspect in the case. He was kept by the police away from the office for about eight months during the investigation, he

was asked to proceed on leave at the instance of the police and leave was extended at their request.

On the expiry of leave he was kept off duty without salary and later on he was paid his full salary after he had given evidence in support of the

prosecution. He had made additions and improvement on vital points from stage to stage in his deposition. By his own admissions he was an

accomplice in respect of the forgery of Anr. document Ex. P-27. On these, facts it was held that whether he was telling a truth, or he was telling a

lie, as appears likely from his cross- examination, he was in either event not a person on whom any reliance could be placed. However, the test

there stated is not applicable in the present case.

Abhesang''s knowledge of the deliberations | in the course of which the dacoity was planned, ''his having seen the accused departing for a

particular purpose or his having accompanied the accused No. 1 when the lafttec, went for disposal of the stolen articles cannot by any stretch of

reasoning mean that Abhesang was concerned in or that he participated in the commission of the present crime. He is not an accomplice and his

evidence does not require corroboration on material particulars. However, as I pointed out earlier, there is ample corroboration to his evidence on

almost all material particulars and the learned Judge was therefore right in relying upon his evidence in the committing Court.

(His Lordship considered further evidence and proceeded:)

(32-33) Therefore to recapitulate the circumstantial evidence, which consists of accused No. l''s association with Devayat who has been proved to

be one of the dacoits of this case, the meeting at the. ''Gaushala'' on the day previous, viz., 9-1-1962 at which accused No. 1 was present and at

which it was decided to commit a robbery at Rib, the manner in which they proceeded to Rajkot in two batches, accused No. 1 coming in his own

''Khatari'' along with Ors. , their stopping at Valbai''s place in Rajkot, accused No. 1 taking petrol for the ''Khatari'' and enquiring at the Bombay

Garage and being given the price list, Exh. 20, which price list flew from the ''Khatari'' on its return journey, the fact that 11 empties of the

cartridges out of those recovered at Rib immediately after the dacoity were fired from accused No. l''s own Winchester rifle, accused No. 1 being

found returning to Kesarbaug in the same ''Khatari'' in the company of the other culprits and Devayat about late mid-night and his disposal of the

property '' in a stealthy and surreptitious manner, viewed together must conclusively prove that he did join in committing this dacoity and ''was

present there.

He has therefore been properly convicted and we confirm his conviction and the sentence u/s 395, Indian Penal Code As regards the offence of

grievous hurt in respect of Dahi the mother of Natha, the injuries were caused in furtherance ,of the common intention of the culprits and that being

so each of them will be liable u/s 326, Indian Penal Code read with Section 34, Indian Penal Code and we therefore. confirm the conviction and

the sentence for the said offence also.

(His Lordship considered the evidence against the accused Nos. 2, 3 and 4 and proceeded:)

(34-38) As for accused No. 5, Kanji, he is the driver of accused No. :1, and as the accused No. l''s servant he was required to drive the car and

go along with the accused No. 1 wherever he was ordered to go. His having been seen in the company of Devayat or his having gone with

Devayat to the house of Jashumati are not such material circumstances as would connect him with the offence. He was not present at the talk at the

''Gaushala'' bungalow and there is no evidence that he was aware when he was asked by Nir- malkumar to get ready next morning that they were

going for committing an offence. In the confession made by this accused, which has since been retracted by him, he has admitted having come to

Rajkot and having been in the ''Khatari'' up to village Rib, but he says that he was sitting in the ''Khatari'' and did not leave it at all. He does not

confess to have taken any part in the commission of the dacoity and this statement made u/s 164, Code of Criminal Procedure does not amount to

a confession.

Mr. Shall for the State has fairly conceded this position but he has urged that the statement can be used against the maker thereof viz., accused

No. 5 as an admission. As held in - ''Ghmlam. Hussain v. King'' 52 Bom LR 508 (PC) (N); such a statement which does not amount to a

confession can be used as an admission against the maker , thereof. Therefore treating this statement as an admission it only comes to this that he

was in the ''Khatari"" which had been parked away from the Rib village, and in this view the fact that there is no evidence to identify him at Rajkot

loses much of its importance. (His Lordship considered further evidence against accused No. 5 and also accused No. 6 and concluded:)

In the result we confirm the convictions and the Sentences of accused Nos. 1, 2, 3 and 6 and dismiss their appeals. We allow the appeals of

accused No. 4, Chunilal and accused No. 5 Kanji and set aside their convictions and the sentences and acquit them.

Baxi J.

I agree.