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Bhabuti And Ors. vs Emperor

High Court Of Judicature at Allahabad|29 April, 1921


1. These appeals have arisen out of a case in which 28 persons were committed for trial to the Court of the, Second Additional Sessions Judge of Agra on charges under Section 400 of the Indian Penal Code. The 24 appellants whose cases are now before us were convicted and sentenced to various terms of imprisonment, the four remaining accused being acquitted. The period severed by the charges was one of three years extending from the month of September 1916 to June 1919, and the case for the prosecution was that during the period in question or portions of the period in question the accused belonged to a gang of persons associated for the purpose of habitually committing dacoity. The principal statement incriminating the accused is that of the approver Bansi, who made two confessions, one on the 15th of July 1919 and the second on the 29th of August 1919. In the first of these confessions he stated that he and his gang had taken part in four dacoities. In his second confession he added five further dacoities, and when he made a statement before the Committing Magistrate on the 2nd of February 1920, he added a tenth dacoity. It has been argued by Mr. Dube with some force that the additions which were made in the second confession and in the statement before the Committing Magistrate throw sufficient doubt on the evidence which was given by the approver, as it indicated that from time to time he was ready to add to the number of dacoities alleged to have been committed by his gang, so as to suit the convenience of the Police who had obtained further information regarding dacoities and persons who were said to have committed those dacoities. The learned Sessions Judge has tried this case with great care and ability and has written an admirable judgment in which he has marshalled all the facts very clearly. We think that he has some to a right conclusion as so the credibility of the statements of Bansi, the approver. He holds that Bansi had made up his mind to benefit by the pardon and faired that if in the end it was discovered that he had concealed some of the acts of dacoity committed by himself and his gang, there was a danger of his being put back and having to stand his trial, and that that was sufficient inducement for him in the evidence before the Committing Magistrate and the Court of Session to make full and detailed statements of all he knew about his gang, although be had concealed some of his knowledge at the time of making his confessions, when he was not certain of obtaining a pardon. Although the law permits a conviction on the uncorroborated evidence of an approver, we do not think that this is a case where the approver's evidence should be acted upon against any accused, unless there is some reliable corroboration against a particular appellant that in fact he did belong to a gang of persons associated for the purpose of habitually committing dacoity. In addition to the approver there is the confession of one Chunna, who is undergoing a sentence of five years' rigorous imprisonment for the dacoity at Kachnau, which was committed on the night of the 6th of May 1919. We see no reason to doubt that Chunna was in the main speaking the truth in that confession, which is admissible in evidence under Section 30 of the Evidence Act in this case against persons who were tried together with him. It may, however, be argued with a good deal of reasoning that after all Chunna's confession is tainted evidence which corroborates other tainted evidence. Fortunately the prosecution had in this case further corroborative evidence upon which the Court was justified in acting. This was the evidence of a large number of witnesses who prove the fact of the association. Many of these witnesses have been able to fix with great precision the time at which they saw together the various persons whom they name or identify. They speak of having seen these persons together shortly before one or more of the dacoities with some of the dacoits, who are undoubtedly persons who habitually commit dacoity. Other witnesses were able to give evidence that some of the appellants, who are specified, were being watehed and were absent from their houses and villages on the dates of certain of the dacoities and returned shortly after the dacoities had been committed. Some of the dacoits, when arrested, wars found in possession of arms including fire-arms and in some cases also of property, the result of a successful dacoity. We do not think it necessary to discuss the cases of such of the appellants whom we consider were rightly convicted by the learned Sessions Judge. There are, however, two cases in which we think the evidence of corroboration is not sufficient to justify a conviction. These are the cases of appellant No. 14, Karan Singh son of Bhola, who has been generally referred to both in the judgment as well as in the arguments as Karan Singh of Adda, and the case of appellant No. 15, Chunna. The learned Sessions Judge, in convicting Karan Singh son of Bhola, relied on the evidence of the approver and the evidence of Hari Singh, witness No. 142. This witness says that on two occasions, which he specified, he had seen certain persons belonging to the gang in question, including Karan of Adda. He did not mention this fact to any body, but after the gang was arrested he told the darogha of having seen these men assembled. He is a person of no partiaular standing. He is an ordinary cultivator who admits in cross-examination that he is really a Police witness, having given evidence on behalf of the Police 50 or 60 times during the last four years. As far as Bansi himself is concerned, we find that in the first confession be omits Karan Singh's name altogether. We do not think that Hari Singh's evidence is sufficiently trustworthy to be treated as reliable corroborative evidence of Bansi's statement, particularly when we find that Bansi himself had omitted this appellant's name in his first confession. It is noteworthy that the assessors, whose opinion the learned Sessions Judge accepts generally, had acquitted Karan Singh. For these reasons we are of opinion that Karan Singh ought to have been acquitted.
2. The strongest point which has been made against Chunna is the fact that undoubtedly took part in the Kachnau dacoity on the 6th of May 1919 for which be is undergoing a sentence of five years' rigorous imprisonment, and in which case he himself confessed. Bansi named him as having taken part only in the Kachnau dacoity. This is net denied by Chunna himself. The other evidence against him is the evidence of Barhamjit and Jhagri which was considered by the learned Sessions Judge as unreliable, In this we agree with the learned Sessions Judge. Therefore, all that is left as far as Chunna is coneerned is the fact of his confession of the Kachnau dacoity and that Bansi also mentions him. Bansi assigns a leading part to Chunna in the Kachnau dacoity, by asserting that it was Chunna who in the first instance came and invited Bansi to take his gang to a place where they would find a bania whose house was well worth dacoiting. This is not the story that Chunna tells. According to Chunna he was asked by Bansi to accompany them and to point out a place where they were likely to find a wealthy man's house to be dacoited. It has been argued by the learned Assistant Government Advocate that it having been shown by the evidence that many of Bans, a companions were well-known dacoits who had been roaming about the country for months, they must have been known to Chunna as persons belonging to a gang associated for the purpose of habitually committing dacoity, and, therefore the evidence of his having joined them in this one dacoity was sufficient to convict him of the offence specified in Section 400 of the Indian Penal Code In the case of Hira Lal v. Emperor 7 Ind. Cas. 1012 : 13 O.C. 243 : 11 Cr.L.J. 554 Evans, J.C., and Lindsay A.J.C., held that "the term 'belong' implies something more than the idea of casual association; it involves the notion of continuity and indicates a more or less intimate connection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected has identified himself with a band, the common purpose of which is the habitual commission of dacoity". With this interpretation of the Section we fully agree. On the facts of this case we hold that it is not shown that Chunna belonged to this gang and for this reason we think that he also should be acquitted.
3. The result is that we dismiss all the appeals except these of Karan Singh son of Bhola and Chunna son of Padam. We allow the appeals of these two men and direst that they be discharged from the performance of any sentence imposed upon them by the judgment under appeal. The fine if paid by Karan Singh, will be refunded.
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Bhabuti And Ors. vs Emperor


High Court Of Judicature at Allahabad

29 April, 1921
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