- (1.) THIS is an appeal by Chandan, Roopsingh, Janaksingh, Dharamsingh and Pyare against their conviction by the Additional Sessions Judge, Bharatpur, under sec. 395/397 I. P. C. and sentence of five years' rigorous imprisonment.
(2.) THE prosecution case against the accused was that on the night between the 7th and 8th July 1949 these five accused along with six others namely Maharajsingh, Hatila, Bhura, Kalwa, Inderbhan, and Mula committed a dacoity at the house of Birbal Mina in village Khatipura and during the dacoity murdered Tikam son of Kalli Mina and injured certain members of his (Birbal's) family. It was alleged that the dacoits had taken away by force silver ornaments belonging to the females of the house of the value of Rs. 279/ -. Out of 11 accused Chandan was caught on the spot and produced before the police. Other accused however escaped and six of them i. e. , Maharajsingh, Hatila, Bhura, Kalwa, Inderbhan, and Moola absconded. THE report of the incident was made at the police station Roopbas on the 8th July 1949 at about 5. 30 A. M. by one Bahadur. In this report the names of the alleged dacoits were not mentioned but it was mentioned that one of the dacoits had been caught on the spot. Chandan was handed over to the police on 8th of July 1949. THE other four accused were also subsequently arrested by the police. THE five accused were alleged to have made their confessions before Shri Pyaremohan, Magistrate, First Class, Bayana under sec. 164 Cr. P. C. THE alleged confessions of Roopsingh, Janaksingh, Dharamsingh, and Pyarey were recorded on the 14th of July 1949 and that of Chandan on 15th July 1949. On 5th August 1949 an identification parade was held in Sewar Jail in Bharatpur District before another Magistrate, Mr. Purushottam Lal Gupta, Magistrate, First Class, Bharatpur. At this identification parade it is alleged that Roopsingh accused was identified by Mishri, Lakhi, Ratanlal, and Sheonarain Minas of village Khati-pura; Janaksingh was identified by Mishrij Jailal, Sirmohar, and Lakhi Minas of Khatipura; Pyarey accused was identified by Lakhi only; and Dharamsingh was identified by Sirmohar and Lakhi only. No stolen property was recovered from the possession of any of the accused and a sword, not alleged to be the looted property, is said to have been recovered from the house of Roopsingh accused at his instance and at the instance of Janaksingh and Pyarey two lathis were recovered from the house of Dharamsingh accused. A sword was recovered from the house of Dharamsingh accused at his instance. At the instance of Dharamsingh a bush-shirt, a knicker, an ordinary shirt, and a whistle alleged to be the property of Tikam deceased were recovered. All the weapons recovered from the house of the different accused are not alleged to be among the property looted. After investigation, the case was challaned by the police at Roopbas and the learned Special Magistrate, Bharatpur, with powers under sec. 30 Cr. P. C, committed the five accused to take their trial in the Sessions Court at Bharatpur under secs. 396/397 I. P. C. All the accused denied the charge and Chandan pleaded that he was passing through the village on his way to some other village when he was caught by some of the villagers. THE learned Additional Sessions Judge, Bharatpur, who tried the case, was satisfied from the prosecution evidence that all the five accused were guilty under secs. 395/397 I. P. C. and consequently convicted them for the said offence and sentenced them as mentioned above. He however held that it was not proved that Tikam met his death at the time of dacoity and he therefore acquitted all the accused of the offence under sec. 396 I. P. C. All the five accused have now filed this appeal. It was argued by the learned counsel appearing for the appellants that no looted property was recovered from the possession of any of the accused. The weapons which were recovered were not proved to be those used at the time of the dacoity. The identification of Roopsingh, Dharamsingh, Pyarey and Janaksingh was most unsatisfactory and worthless. As about the so-called confessions it was argued that they were neither voluntary nor true. They were extracted from the accused by violence by the police. It was argued that they were subsequently retracted and conviction could not be founded on these so-called confessions alone without any independent evidence. It was further argued that in their so-called confessions the accused had said that some silver ornaments were taken from them by the police, yet those ornaments were not produced in court, which shows that no such ornaments were ever taken by the police from the accused and they were simply made to make a false statements. The confessions cannot, therefore, be relied upon, specially as there is no independent evidence to corroborate them. On behalf of the prosecution, the learned Deputy Government Advocate argued that in the first instance the confessions which were voluntary and true alone could be made the basis of conviction. Moreover, there was independent evidence in corroboration in as much as the accused were identified before a Magistrate or some of the prosecution witnesses. As regards Chandan it was argued that he was caught on the spot and the offence was consequently brought fully home to him. I have considered the argument of both the learned counsel. So far as the case for the prosecution about a dacoity having taken place at the house of Birbal and the injuring of certain members of his family is concerned there is overwhelming evidence on the record to show that such dacoity was committed. It is fully proved that there were more than five persons who committed the dacoity. There is the evidence of Birbal, P. W. 20, Mst. Budhia, P. W. 3, Mst. Champa, P. W. 4, Jailal, P. W. 5, Sirmohar, P. W. 7, Ratanlal, P W. 18 and Hardia, P. W. 20 which fully proves that the dacoity took place and some members of Birbal's family Were injured and property in the shape of silver ornaments was taken away by the dacoits. Out of these witnesses Birbal received injuries which were examined by Dr. Girraj Prasad P. W. 12. They were seven in number, out of which one was a grievous hurt. The report of dacoity was made within a few hours of the dacoity and it was mentioned therein that 7 or 8 dacoits armed with different weapons came to village Khatipura, killed Tikam Mina and injured Birbal and took away property. Out of the dacoits one was arrested on the spot. The learned counsel for the appellants himself did not seriously dispute that there was a dacoity at which Tikam and Birbal were injured. The only argument that he has pressed is that it is not proved that any of the five appellants took part in the dacoity. It has therefore to be considered whether the accused took part in the dacoity. Only Chandan was caught on the spot. No property alleged to have been looted was recovered from the possession of any of the accused. The weapons which were recovered from the house of different accused were not proved to be the weapons which were used at the time of the dacoity. The only evidence on which reliance has been placed by the prosecution for the conviction of Roopsingh, Janak-singh, Dharamsingh and Pyarey consists of their alleged confessions and of witnesses who are said to have identified them before the Magistrate. As regards the evidence about their identification at the parade Pyarey was identified only by one witness i. e. , Lakha and Dharamsingh was identified by two witnesses namely Sirmohar and Lakha; Roopsingh was identified by four witnesses namely Mishri, Lakha, Moharpal and Sheonarain and Janak-singh by Mishri, Jailal, Sirmohar and Lakha. This Lakha was a very young boy of 12 years who died before his evidence could be recorded at the trial. His statement recorded before the committing Magistrate was therefore admitted in evidence under sec. 33 of the Evidence Act. It is strange that out of so many witnesses it is this boy alone who could identify all the four accused. Of the identifying witnesses Mishri and Sheonarain were not produced in the case. Thus against Roopsingh, the only witnesses for identification who were produced in court were Lakha and Ratanlal and against Janaksingh the only witnesses were Jailal, Sirmohar and Lakha. Thus at the most there were only three witnesses who were produced in court about the identification of one of the accused. In the case of Pyarey, as has already been said, there was only one i. e. , Lakha. Although legally Lakha's evidence was admissible under sec. 33 of the Evidence Act, yet as he could not be examined in the Sessions Court it cannot be said that the accused had full opportunity of cross-examining him. Moreover, it is proved from the prosecution evidence that there was darkness at the time of the dacoity. We find it in the evidence of P. Wa8 Ratanlal that there was darkness at the time the dacoity was committed. It is in the evidence of Sirmohar P. W. 7 that one of the dacoits was putting on a hat at the time of the dacoity but he was not among the accused. He further says that excepting the dacoit who was putting on a hat all other dacoits had their faces covered by the ends of their turbans. It is strange how at that heated moment when loot was going on and persons were being injured any witness could identify the accused who had their faces covered. The identification at the time of the identification parade is therefore not free from suspicion, and no reliance can be placed upon it. The evidence of identification has therefore to be ruled out. Excluding the evidence with respect to identification we are left only with the alleged confessions of Roopsingh, Janaksingh, Dharamsingh and Pyarey. If a confession is duly recorded before a Magistrate under sec. 164 Cr. P. C. and is voluntary and true it is not altogether illegal to convict an accused on the basis of confession only. Generally, however, the rule of prudence requires that there should be some independent corroborative evidence in material particulars of the confession. It was held in a Division Bench case of this Court in Abdul Rahman vs. State (Criminal Appeal No. in of 1950), decided on 4th December 1951, following the ruling reported in Jawan vs. Emperor (25 I. C. 634) that - "experience and common sense show that in the absence of corroboration in material particulars it is not safe to convict on a confession unless, from the peculiar circumstances in which it was made and judging from the reasons, alleged or apparent of the retraction, there remains a high degree of certainty that the confession, notwithstanding its having been resiled from, is genuine". The observations of Cave, J. in Ruggha vs. Emperor (A. I. R. 1925 All. 627 at p, 635) were also incorporated in the judgment. These are as follows: - "i would add that for my part I always suspect these confessions which are supposed to be offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession, a desire which vanishes as soon as he appears in a court of justice. " As we are left with the so-called confessions of these four accused it is necessary to consider whether there are any peculiar circumstances in this case from which it can be said that there remains a high degree of certainly that the confession notwithstanding its having been retracted in court is genuine. I am unable to find any such peculiar circumstances in this case. If certain portions of these confessions are true it was not difficult to find a corroboration for the confessions. It was stated in the confessions that some property out of the looted property was handed over to the police. If this portion of the confession were true it was expected that the property should be produced before the court and the prosecution case would have been very much strengthened if that property could have been identified by the persons who were the victims of dacoity as the property taken away by the dacoits at the time of the dacoity. The fact that such property has not been produced in court goes to show that no such property was handed over by the accused to the police. There are therefore reasons to believe that this portion of the statement of these accused was not true. If the accused could make such a serious allegation against them falsely, there is no guarantee that whatever is contained in their so-called confessions is true. If they could be made to make a serious allegation against them falsely, it would not be a matter of surprise if other things were also put in their mouth. Far from there being peculiar circumstances in this case on account of which conviction could be founded on these confessions alone there are circumstances given above which throw a good deal of doubt upon the truthfulness or the voluntary nature of the confessions. It would, therefore, be unsafe to base the conviction of Roopsingh, Dharamsingh, Janaksingh and Pyarey on their so-called confessions alone. All the accused retracted their so-called confessions as soon as they were examined before the committing Magistrate on the 9th August 1950. On these retracted confessions conviction alone cannot be safely maintained. Roopsingh, Dharamsingh, Janaksingh and Pyarey therefore deserve the benefit of doubt and are entitled to acquittal. The case of Chandan is however different. It is fully proved that dacoity took place and he was caught on the spot. The prosecution witnesses have stated that he was among the dacoits and could not escape He was therefore seized by Ratanlal. There is no satisfactory explanation as to why Chandan who does not belong to village Khatipura was present on the spot at the time of the night in the darkness. His explanation is that he was going with some of his belongings to another village and was passing through the village when he was caught. This explanation is altogether lame. No property of his was found on his person at the time he was caught. His explanation is belied by the evidence on record. There is clear evidence that more than five persons committed dacoity and it is fully established that Chandan was one of the dacoits. He was therefore rightly convicted under sec. 395 of the Penal Code. It is fully proved that deadly weapons were used at the time of the dacoity and grievous hurt was caused to Birbal. He could therefore be rightly punished under sec. 397 I. P. C. The sentence under that section should not have been less than seven years' imprisonment. However he was fortunate enough to escape with a sentence of five years' rigorous imprisonment only and the sentence cannot be enhanced in appeal. The appeal so far as Chandan is concerned therefore fails and is dismissed. The appeal so far as Roopsingh, Dharamsingh, Janaksingh and Pyarey are concerned is allowed, their con-viction and sentence are set aside and they are acquitted. They shall be released forthwith, if not required with any other case. . ;