1. This Is an appeal by Akmat Ali of village Badarpur in Bast Pakistan under Section 420, Criminal P. C., who was convicted by the Sessions Judge, Tripura under Section 395, Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500. His co-accused Sultan Ahamad of village Kalikapur in East Pakistan who has also preferred a similar appeal (Jail Appeal No. 25 of 1956) was convicted under Section 397, Penal Code, and sentenced to rigorous Imprisonment for a period of 9 years and to a fine of Rs. 600. This Judgment will govern both these appeals. It might be mentioned at the very outset that the conviction of appellant Sultan Ahamad under Section 397, Penal Code, was not correct and ought to have been under Section 395 read with S. 397, Penal Code, as Section 397 does not create a substantive offence.
2. It is undisputed and there is ample evidence to prove that there was a dacoity at the house of Surendra Paul (P. W. 1) and Rangahari Paul (P. W. 7) on the night between 31-1-55 and 1-2-55 at mouja Chakbasta-Jagatrampur within the jurisdiction of Jatrapur Police station, in which cash, ornaments, clothes and other movables of a total value of Rs. 3000 were removed from two huts. Surendra Paul (P. W. 1) was on that night sleeping in one of the huts with some members of the family, while Rangahari Paul (P. W. 7) was sleeping with some other members of the family in the other hut which is to the south of the first one. Sometime after midnight 6 or 7 dacoits broke into the first hut in which Surendra Paul was sleeping. The dacoits were armed with lathis and one of them had a gun. The other dacoits numbering 8 or 10 who were armed with lathis similarly broke into the other hut. In the course of the commission of the dacoity both these witnesses and some others were assaulted and beaten and Rangahari Paul (P. W. 7) was given some lathi blows on his head resulting in lacerated wounds.
3. The matter was reported to the Police but the investigation proved to be abortive and none of the offenders was detected. On the morning of 35-3-55 P. Ws. 1 and 7 learnt that a dacoity had been committed at the house of Rahamat Ali of Himmatpur on the previous night and two of the dacoits had been caught and kept tied up at the house of Rahamat Ali. They, therefore, went there and Rangahari Paul (P. W. 7) recognised one of them (appellant Sultan Ahamad) as the dacoit who had hit him with a lathi on his. head, while the sweater which the other (appellant Akmat Ali) was wearing was identified by Surendra Paul (P. W. 1) as belonging to him and which was removed in the dacoity at his house. Others also identified it as belonging to P. W. 1. Later Sova Rani (P. W 4) also Identified Sultan Ahamad as one of the dacoits that had broken into the hut in which she, P. W. 1 and others were sleeping that night and had forcibly removed a brass ring from her finger. Besides this evidence the prosecution also relied on extra-judicial confessions alleged to have been made by both the appellants at the house of Rahamat Ali when appellant Sultan Ahamad and the sweater were recognised by P. Ws. 1 and 7. This evidence including that of the extra-judicial confessions was believed by the learned Sessions Judge and he based the convictions on this evidence.
4. In my opinion the extra-judicial confessions even if proved were inadmissible in evidence and at any rate in the circumstances present it would not be safe to rely on them. While the other witnesses say that when these extra-judicial confessions were made the Police were not present and had not eves arrived. Abdul Mazid Taluquedar (P. W. 10) who also stated this at first, had to admit when con. fronted with his deposition before the Committing Magistrate that it was the Daroga who questioned Akmat Ali on being told that the sweater belonged to P. W. 1 and then Akmat Ali made the confessional statement. It would thus appear that the confessions would fall within the purview of Sections 25 and 20, Evidence Act. Custody contemplated by Section 26 does not necessarily mean a formal arrest and what is necessary is that at the time of making the confession the accused should be in the hands of a Police officer i.e., not free to depart at his own free will. It is quite clear that the two appellants were in this position at the time they are alleged to have made the confessional statement.
5. It is true that P. Ws. 1 and 7 and some others came to know about the dacoity at the house of Rahamat Ali from those who passed their houses on their way to the Police station to make a report in the morning. It is therefore not unlikely that they reached the house of Rahamat Ali before the arrival of the Police. In that case the possibility of appellant Sultan Ahamad and the sweater having been identified and the appellants questioned before the arrival of the Police cannot be wholly ruled out, and some witnesses also say that the appellants made some statements to the Daroga also, thereby lending support to the probability of the confessions having been made before and also after the arrival of the Police, But in view of the circumstances and the state of evidence referred to above I consider that it would not be safe to rely on these confessions and they must, therefore, be excluded,
6. This leaves us with the evidence of identification by P. W. 7 and P. W. 4 alone as far as appellant Sultan Ahamad is concerned, The learned Sessions Judge relied on this evidence and I see no reason to differ from him. The evidence adduced in the case goes to show that the dacoits were carrying country torches with them, and therefore the inmates of the huts could see their faces. There is also reliable evidence to show that P. W. 7 and P. W. 4 had given out soon after the dacoits left that they had been able to see the face of one of the dacoits and would be able to recognise him and as already seen they did so on the first opportunity. It must, therefore, be found that it has been satisfactorily proved that appellant Sultan Ahmad was one of the dacoits and he also gave a blow with a lathi on the head of P. W. 7 Rangahari Paul and snatched away a brass ring from the finger of P. W. 4. There is, however, no evidence to show that the lathi used by this appellant was of a kind which could be called to be a deadly weapon, nor is there any medical or other evidence to support the view that grievous hurt was caused or attempted to be caused by him. The conviction under Section 397 cannot, therefore, be maintained and must be altered into one under Section 305 I, P. C. and I do so. Taking into consideration all the facts and circumstances I think that his punishment should be reduced to rigorous imprisonment for 7 years and the punishment of fine allowed to stand,
7. As against appellant Akmat Ali the only evidence that now remains is that of the identification of the sweater found on his person as belonging to P. W. 1 and that it was removed in the dacoity in question. There is overwhelming evidence of a re-liable kind to prove that this sweater belongs to P. W. 1 and therefore I see no reason to disbelieve P. W. 1 when he says that it was taken away by the dacoits. But I am afraid that in view of the fact that it was found in the possession of this appellant after about two months of the dacoity it would not be either fair or safe to draw the presumption that he took part in the dacoity at the house of P. W. 1. But the circumstances of the case and his association with the other appellant, in my opinion, justify the presumption that he received the sweater with the knowledge that it had been removed in a dacoity. His conviction is, therefore, altered Into one under Section 412 of the I. P. C. and the sentence of imprisonment is reduced to one of rigorous imprisonment for a period of 5 years and the punishment of fine imposed by the Sessions Judge is allowed to remain.
8. In the result, the appeals fail except for the modifications stated above and are accordingly dismissed.