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Emperor Vs. Ganesh Narayan Dikshit - Court Judgment

LegalCrystal Citation
Decided On
Case Number Criminal Appeal Nos. 168, 169, 199, 200 and 201 of 1912
Reported in(1912)14BOMLR972; 17Ind.Cas.705
RespondentGanesh Narayan Dikshit
DispositionAppeal dismissed
criminal procedure code (act v of 1898), section 239-joint trial-conspiracy by accused to procure conviction of innocent person-several acts done by each all converging to the point agreed upon-liability of all conspirators-trial can be joint.;the accused five in number, finding that a robbery of property worth rs. 60,000 was committed, aided and abetted each other in inducing one tukya, whom they knew to be entirely innocent of the theft, for the consideration of a bribe of rs. 100, falsely to confess to complicity in the crime and to acquiesce in being prosecuted for it, with the object that the accused or some of them might share the loot with the real thieves. to this end, the accused wrongfully confined tukya, fabricated false evidence in order to procure his conviction, knowingly.....batchelor, j.1. the five appellants before us, hereinafter called the accused, were jointly tried before the learned sessions judge of sholapur, and were convicted by that judge in agreement with both assessors. at the material times to which the charges relate the accused held the following characters : the first accused was the city sub-inspector of police at sholapur, the second accused was a police jamadar and by caste a kaikadi, the third accused was a police havaldar or head constable, the fourth accused was a money-lender of sholapur, the fifth accused was the police patil of the village patkul in the madha taluka of the sholapur district.2. the accused no. 1 has been convicted of the offences: (a) of fabricating false evidence with intent to procure conviction of an offence.....

Batchelor, J.

1. The five appellants before us, hereinafter called the accused, were jointly tried before the learned Sessions Judge of Sholapur, and were convicted by that Judge in agreement with both assessors. At the material times to which the charges relate the accused held the following characters : The first accused was the City Sub-Inspector of Police at Sholapur, the second accused was a Police Jamadar and by caste a Kaikadi, the third accused was a Police Havaldar or Head Constable, the fourth accused was a money-lender of Sholapur, the fifth accused was the Police Patil of the village Patkul in the Madha Taluka of the Sholapur District.

2. The accused No. 1 has been convicted of the offences: (a) of fabricating false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years; (b) of wrongful confinement; (c) of causing criminal proceedings to be instituted against a person without just or lawful ground; (d) of giving false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years.

3. The second and third accused have been convicted : (a) of the abetment of fabrication of false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years ; (b) of the abetment of wrongful confinement.

4. The fourth accused has been convicted: (a) of the abetment of the institution of criminal proceedings knowing that there was no just or lawful ground for such proceedings; (6) of the abetment of wrongful confinement.

5. The fifth accused has been convicted of the offence of giving false evidence with intent to procure conviction of an offence punishable with imprisonment for seven years.

6. The facts and circumstances attending the alleged crimes are fully and lucidly stated at the beginning of the Sessions Judge's exhaustive judgment. It is unnecessary, therefore, to recapitulate them. It will be enough to say that in substance the accusation is this : that a robbery having been committed at the house of one Paricharak, and property, namely, cash and ornaments worth about Rs. 60,000 having been stolen from that house, the accused aided and abetted each other in inducing a young man, named Tukya Mang, whom they knew to be entirely innocent of the theft, for the consideration of a bribe of Rs. 100, falsely to confess to complicity in the crime, and to acquiesce in being prosecuted for it, the object being that the accused or some of them might share the loot with the real thieves; that to this end the accused wrongfully confined Tukya ; fabricated false evidence in order to procure his conviction ; knowingly instituted a false prosecution against him, and in that prosecution gave false evidence in order to secure his conviction.

7. According to the case for the Crown the important dates in the whole series of transactions are as follows:-On the 29th October 1911 the burglary took place at the house of Paricharak; on the 30th October Paricharak made his complaint to the Police ; on the 7th November the first accused, who had previously been placed on special duty in connection with various thefts of which Kaikadis had been suspected, was appointed to investigate the burglary at Paricharak's. He selected his own assistants for this purpose, and among the persons so selected were his subordinates the second and third accused. On the 22nd November, the first accused sends the second accused to Sholapur ; on the 23rd November the first accused goes to the village Pennur; on the 24th November we find the whole Police party at Patkul, the accused 1 and 3 being joined there by the second accused and a man called Yadu, who was a Police agent or spy. On the 25th November the party proceed to the village of Sarola, where an interview is held with certain Kaikadis, who apparently were the real authors of the burglary at Pari-charak's, or were acting on behalf of the real authors. In the fields of this village Sarola on this day these Kaikadis hand over to the first accused in the presence of the second accused and Yadu certain property forming part of that stolen from Paricharak's house. The property so handed over to the first accused consisted of a valuable bundle of ornaments and about Rs. 2,000 in cash. This being received by the first accused, he and his assistant, the second accused, invite the Kaikadis to give up one of their own tribe for conviction, but this the Kailkadis refuse to do, though they promise to fee any person, presumably any innocent person, whom the Police could secure to undergo prosecution. That evening the first accused suggests to the second accused and Yadu that the person to be victimised should be the lad Tukya, a Mang youth, who about this time was anxious to be put on the ' Hazri' or roll-call, in order to ensure that the Police should regard him as a person of good character. This procedure appears to be usual among members of such castes as the Mangs. On the 27th November the accused 1 and 2, with Yadu, return to the Sarola fields, where they receive from the Kaikadis a further sum of twenty-five sovereigns to be paid as indemnity to the person whom the Police accused should select for wrongful prosecution and conviction

8. On the 28th November the second accused goes to Sholapur with Yadu, and on that day Yadu makes his first approaches to Eknath, who was the prospective father-in-law of the boy Tukya, and under whose protection and guardianship Tukya may be roughly stated to have been then living. These overtures were scouted by Eknath who refused to lend himself to the Police schemes. On the following day, the 29th November, the second accused resumed his negotiations, and in the end they resulted on that day in a settlement. This settlement was mainly brought about through the intervention of the fourth accused, who was Eknath's ' Savkar ', and the man to whom Eknath was looking for protection. The fourth accused however, was won over by the second accused ; and the fourth accused's influence finally succeeded in conquering Eknath's and Tukya's powers of resistance. The result was that the fourth accused was paid Rs. 100 which was to be handed over to Tukya when Tukya should emerge from his wrongful imprisonment. That same evening, the 29th November, the second accused and Yadu and Tukya leave Sholapur by train and go to Mohol, where they spend the night on the Station platform. On the 30th November the second accused, Yadu and Tukya, travel through the villages of Pokhrapur and Adhegaon. At Adhegaon they are met by the first accused and his party, who had arrived on the preceding day. The first accused tutors or coaches Tukya in the role which has been allotted to him to play ; and, that done, the party move on to the village of Patkul which they reach about 4 o'clock in the afternoon.

9. The whole party then proceed to certain jungle or waste lands to the North of the village. The Police accused go ahead, Yadu and Tukya following. The ornaments which accused No. 1 had received from the Kaikadis in the fields of Sarola were taken on by him to Patkul, and these ornaments were buried by the first three accused in the sandy bed of a river running through those waste lands of Patkul. The place of concealment was then pointed out to Tukya, who was further directed what he was to do. When these preparations were complete the Patil of the village, i.e., the fifth accused and the Panch were called for out of the village. Before these people Tukya digs up the buried ornaments, which he professes himself to have concealed, and confesses that he was one of the thieves who broke into Paricharak's house.

10. On the first of December the party come back to Pandharpur, Tukya being in custody and in charge of the first accused. At the first accused's directions the second accused takes Tukya round the town of Pandharpur and shows him the house of Paricharak and other topographical features with which it was essential for the accused's scheme that Tukya should be more or less familiar.

11. On the 2nd December Tukya is taken before the Magistrate, and there he makes the confession which he had been tutored to make, and which is Exhibit 19 in this case. That being done the Police obtain a remand for fourteen days.

12. On the 20th December Paricharak, who throughout had been profoundly dissatisfied with the first accused's investigations and their result, saw the Police Inspector Metkar and complained to him about the first accused's enquiries, so far as they had then proceeded.

13. On the fifth January the accused 1 and 5 were examined as witnesses before the Magistrate in the case against Tukya and gave evidence in favour of that prosecution. On the 6th January Paricharak has an interview with the District Superintendent of Police, Mr. Kelly, and the interview was attended by the two informants Bhavani and Balvant who were mainly responsible for inspiring Paricharak with doubt and suspicion as to the first accused's investigations. The result of this interview was that Mr. Kelly was determined personally to probe matters to the bottom and that without any delay. On the following day, the 7th January, Mr. Kelly accordingly in the presence of the inquiring Magistrate takes the statement of Tukya who was still in the lock-up. Thereafter Mr. Kelly proceeds straight to Sholapur where he examines all the available witnesses referred to in Tukya's statement. These examinations were largely completed on that very night. Those that could not be so completed were taken on the following day, the 8th January, when Mr. Kelly moves the Magistrate to enlarge Tukya on bail, and the Magistrate does so. Then Mr. Kelly goes to the village of Patkul following the same route which had been taken by the Police accused and Tukya. On the way the Superintendent made close enquiries at the villages which the Police party had passed through, notably Pokhrapur and Adhegaon, and in the presence of many of those villagers, Yadu and Tukya were carefully identified before Panchas. On the 12th January the first three accused were arrested on the 14th January Tukya was discharged, and an order was made by the Magistrate under Section 476 of the Criminal Procedure Code against these accused and others. The District Magistrate himself conducted the preliminary inquiry, and as a result committed these accused to take their trial before the Court of Session.

14. As the learned Sessions Judge has observed, the questions which really arise for answer are two : first, was Tukya innocent of the offence of housebreaking and theft with which he was charged? and secondly, if so, did the accused knowing him to be innocent of the said offence conspire to fabricate false evidence connecting him with the crime, and to get him arrested and prosecuted? As we have noticed, the Judge and the Assessors were all agreed in answering these questions adversely to the accused. The learned Judge's own judgment is sufficient proof of the care and thoroughness with which he conducted this trial; and he in turn bears witness to the great care and attention which the assessors paid to the case.

15. It appears to us desirable to consider the case first in its broader aspects paying special regard to natural and ordinary probabilities consistent with the usual motives of human conduct. Judged by this cost, the original story for the defence, the story, that is, that the accusation against Tukya was true, has very decidedly less claim to credit than the story for the Crown-apart from there being no evidence for the defence and much evidence for the Crown. For the prosecution case, though it discloses an odious conspiracy in which no Court should lightly believe, contains nothing unreasonable, nothing inconsistent with the conduct which would be pursued by men who put avarice before honesty and fraud before duty ; whereas the original story for the accused is in violation of ordinary probabilities at every turn. For upon that story what are we asked to believe We are asked to believe that Tukya on being seen by the Police party in the waste lauds of Patkul immediately ran away, was pursued and captured ; that he forthwith made a confession and showed some stolen ornaments buried near the particular spot where he was seized. Now the burglary was over a month old. The Police had no sort of clue or evidence against Tukya. Tukya was as well entitled as the accused themselves to be walking about these waste lands of Patkul. There is no conceivable reason why he should have forced suspicion on himself by running away ; no motive why he should confess ; and if we concede that all this happened so, yet we must go further and suppose that Tukya also happened to have secreted the property just at this particular spot where the Police happened to come upon him, although this particular spot is in the lands of Patkul and Tukya is a permanent resident of Sholapur, and has no sort of connection with Patkul, a village some forty miles away. Other circumstances in the confession also call for notice ; among them the evidently inspired parenthesis that Tukya's associates in the crime were more robust than he, a simple-minded weak lad, a circumstance which would be of great importance to the Police if they inspired this confession but which could be of no importance whatever to Tukya. Then there is the inexplicable assertion that since the theft Tukya had been wandering idly about the jungle as if seeking arrest, though he lived and worked in Sholapur ; the establisned falsehood that Tukya was a resident of Najana in Moglai; the entirely casual manner in which the other burglars happening to come across Tukya as he was vaguely wandering in the lands of Sarola immediately recruited him, a useless and unneeded stranger to join them in their crime ; and lastly his complete ignorance of even the caste of these sudden confederates, so that all he could say of them is that 'they were probably Mussalmans as two or three of them wore beards.' It is quite certain that whoever the gang of robbers were that pillaged Paricharak's house their numbers were not recruited in this fashion. In truth the more we study this confession in the light of obvious facts and probabilities, and quite apart from the evidence for the prosecution, the plainer becomes the inference that it is a fiction and a stupid fiction. Indeed these circumstances are so unanswerable that in the Court below the defence abandoned the theory that Tukya was a real thief, and nothing has been heard of it here. But upon that footing what is left to the defence Nothing but a vague suggestion that the whole prosecution may be the result of a conspiracy on the part of some undefined persons who had a grudge, not only against the Police accused, but against the Savkar of Sholapur, and the Police Patil of Patkul.

16. Postponing for a moment the consideration of this suggestion, let us examine the evidence, for it is upon the evidence that the appeal must be decided. As we have observed, the only evidence called is that for the prosecution. First, then, we have an overwhelming body of evidence which traces the second accused with Yadu and Tukya from Sholapur through Mohol and Pokhrapur to Adhegaon and so to Patkul. This journey is proved, not only by Tukya, but by a large body of unrelated witnesses who come from various villages, are wholly independent of one another and of this case, and have not any interest to link them together; nor has any one of them any cause of grudge or malice against any one of these accused.

17. One proposition is thus, we think, established beyond the reach of doubt, and that is that, as Tukya says, he was not accidentally found wandering in the Patkul lands, but was designedly taken there by the Police accused. But the ornaments were incontestably produced in these lands by Tukya. And the only possible theory to account for the presence of the ornaments in this place of their concealment is that, as Tukya and the witnesses say, they were taken there and buried there by the Police accused.

18. This, in our judgment, is as certain as any proposition can be made certain by human evidence ; and its consequences, when fairly realised, set the whole case for the prosecution beyond suspicion. For since we have the truth of Tukya's evidence on these essential parts of the case thus demonstrated, there is no conceivable reason why we should not trust Tukya also in regard to the preceding events at Sholapur; indeed that evidence, and that evidence alone, can account for the presence of the whole party at Patkul and the travesty which was there played out. It was suggested by Mr. Karandikar that Tukya should be regarded as an accomplice, but we think it would be an abuse of language to apply such a word to this unfortunate lad, an unintelligent youth of a depressed and despised caste, who was forced into reluctant and helpless submission by the threats of the powerful accused Nos. 1, 2 and 4. Tukya was no more an accomplice in the accused's guilt than the traveller who delivers up his purse at the mouth of the highwayman's pistol is an accomplice of the highwayman. This witness, therefore, who was believed by the Judge and Assessors who saw him, who is unshaken by a long and severe cross-examination, and who is supported at every possible point by the ordinary probabilities of the case, needs no corroboration : he is entitled to credence on his own merits, and if the convictions had proceeded on his sole testimony, we should have been prepared to affirm them. But, as we have noticed, that is far from being the case : Tukya, who is corroborated as to the village incidents by the cloud of independent witnesses from the villages, is corroborated also as to the Sholapur incidents of 28th and 29th November by his prospective father-in-law, Eknath, with whom he was living, by Eknath's wife, Pema, by his former employers, Vithu Mali and Tukaram Maratha, and by Tukaram's brother-in-law, Maruti Daji. We are satisfied that these witnesses are witnesses of truth.

19. The result is that, on the testimony of Tukya and the corroborating testimony of the witnesses from the villages and from Sholapur, reinforced by the general considerations to which we have referred at the beginning of this judgment, we have the whole case for the Crown established from the preliminary machinations in Sholapur down to Tukya's extorted confession of the 2nd December.

20. The above evidence is enough, and more than enough, to justify the convictions of all the accused. We have, however, in addition, the evidence of the Police spy and accomplice, Yadu. He tells the same story as the truthful witness Tukya; he is corroborated in all essentials by the same independent witnesses as well as by the diaries of the Police accused Nos. 1 and 2 ; his protracted cross-examination was wholly barren of any inference against him ; and his original story was surprised out of him by the promptitude of the District Superintendent of Police, Mr. Kelly, before he had motive or opportunity for invention. In these circumstances we accept Yadu's deposition as truthful, and are prepared to act upon it.

21. It remains to notice such arguments as seem to call for notice in respect of each accused who has appeared by counsel or pleader. It must be said in liinine that the only difficulty in dealing with the defence lies in ascertaining what precisely the defence is. The main argument was addressed to us by the Honourable Mr. Karandikar who appeared for accused 1 ; but it was obvious throughout his address that lie had no constructive or consistent defence to offer. The defence adopted after full consideration by his client, a man of experience and education, was that Tukya was in truth one of the Pandharpur thieves; that line of defence, however, which was abandoned by accused's legal advisers before the Sessions Court, was also disavowed by Mr. Karandikar here. As we have shown, it is a wholly impossible defence. It thus devolved upon accused I's pleader to submit another line of argument, and it is unfortunate that one of the contentions suggested by the learned pleader is a contention which his client plainly repudiated before the Sessions Judge-we mean the contention that, Tukya being innocent, the first accused was imposed upon by the second accused. This suggestion, however, will not bear examination for a moment. The second accused, a mere Jamadar, was the direct subordinate of first accused, who had specially selected him as his assistant in these matters ; the first accused was, not only formally or ostensibly, but really in charge of the whole investigation, and, as his diaries show, was directing and superintending every step taken; nor could accused 2 and 3 adopt any measure of importance otherwise than by his orders. Also, as we have said, this particular defence was in terms declined by first accused when it was suggested to him by the Sessions Judge; and, finally, it is wholly irreconcileable with the evidence of Tukya and Yadu.

22. Next it was suggested that possibly the accused might themselves be the victims of a conspiracy. The suggestion was so nebulous and unsubstantial that, as we think Mr. Karandikar would acknowledge, he himself found some difficulty in putting it into words. Of course the accused were under no obligation to prove anything, and they are entitled to advance any theory to which an air of plausibility can be given ; but, if it is to prevail, even a theory in defence must bear some relation to established fact: it must not be wholly in the air, but must, so to say, have a foot on the solid earth somewhere. These easy conditions the present theory wholly fails to satisfy. There is no person living of whom it can be, or has been, suggested that he bears malice, not only against these Police accused, but simultaneously also against the wealthy Savkar of Sholapur and the Police Patil of the remote village Patkul. Nor is it possible to hold that accused I alone may be the victim of other people's conspiracy. It is no light matter to trump up a false case against a Sub-Inspector of Police, and the half-hearted suggestion that some of his official superiors may have had an interest in doing so, entirely fails. Moreover, the whole genesis of the case for the Crown flatly negatives such a theory. That case has its origin in the sudden and unforeseen action of Mr. Kelly, who, after his interview with Paricharak and his informants on 6th January, immediately posted off to the lock-up and there, on the 7th January, recorded Tukya's statement in the presence of the Magistrate. Since the 2nd December Tukya had been in the lock-up in the direct custody of the Police, and we observe that one member of the Police guard was accused 2's own brother. It is certain that, during Tukya's detention prior to Mr. Kelly's interview with him, he was kept very safe from any influences, if any influences existed, which could possibly have hampered the first accused or his schemes. Thereafter the case against accused was clinched by the same activity. Tukya gave to Mr. Kelly the names of Yadu and the Sholapur witnesses, and Mr. Kelly hastened off to Sholapur where he examined these witnesses that same night and the following day. All was done before any witness could be tampered with, and at a time when no witness could have anticipated Mr. Kelly's visit. The village witnesses were discovered with similar expedition, Mr. Kelly proceeding to Patkul along the exact route which the accused had followed from Sholapur. It is thus abundantly proved that, as there was no motive or occasion for anybody to bring false accusations against the first or any other accused, so there was no time or change or opportunity for any such concoction,

23. In the case of the second accused nothing that can be called a separate defence has been attempted. The evidence proves that he was throughout the main instrument employed by first accused in this conspiracy, and that the first accused could not have chosen a more willing or active confederate in the prosecution of the common objects of the crime.

24. Accused 3, who was not represented before us, was with the accused 1 and 2 and Tukya at Adhegaon before the party moved on to Patkul, and at Patkul he assisted accused 1 and 2 in burying the ornaments which Tukya was to pretend to discover. There can be no doubt of his guilt, and the learned Sessions Judge has given due weight to the fact that he was probably acting more or less under the influence of his superiors, accused 1 and 2.

25. Mr. Gharpure for the 4th accused has, quite rightly, mainly restricted his argument to the question of motive, contending that no sufficient reason has been shown why this man, a money-lender, should have joined in the first accused's schemes. But even if this assumed absence of proved motive were a fact, we should be compelled to disallow the argument ; and we should do so without hesitation, seeing that the guilt of this accused is abundantly proved by the witnesses whom we believe, namely Tukya, Kknath, Bai Pema and Yadu. It is clear that none of these persons has any motive in giving false evidence against this well-to-do Savkar, nor are they the kind of persons who would have the courage to incur his displeasure. Indeed, as the evidence shows, it was to this man, as being his Savkar that Eknath threatened to appeal when the second accused first tried to bully him into sacrificing Tukya. This danger was, however, at once removed by the second accused, who proceeded to win over the fourth accused, and enlist his assistance in favour of the fraud; and it was this betrayal by the fourth accused, their only influential acquaintance, which finally reduced Eknath and Tukya to helpless acquiescence in the conspirators' plot. As to the Savkar's motive, it does not appear to us to be far to seek ; apart from the possibility of a share in the unlawful profits, it was, no doubt, a great thing for this accused to stand well with a Police Officer of the rank of Sub-Inspector, while in his view, we think, it was a small thing that a boy of the Mang caste should be wrongly condemned to what he was led to believe would have been a few months' imprisonment. Thus the question of accused 4's motive causes neither obscurity nor difficulty, and upon the faith of the witnesses named we must affirm his conviction.

26. In the case of the accused No. 5 there is a preliminary point raised by his learned Counsel which we must deal with before we can come to the merits. The point is that objection is taken on the ground that accused No. 5 was charged and tried jointly with the accused No. 1, though one of the charges against the accused No. 1 was, like the charge against accused No. 5 himself, the charge of giving false evidence against Tukya. From this circumstance it is urged that the joint trial of accused No. 5 with accused No. 1 was illegal, and for this argument reliance is placed upon the decision of this Bench in King-Emperor v. Krishnarao (1902) 4 Bom. L.R. 53. We think that that case is on the facts immediately distinguishable from the case which is now before us.

27. So far as the facts in Krishnarao's case are to be collected at all from the judgment, it would appear that the Court there had before it nothing more than this that two accused persons were severally charged with giving false evidence and were tried together. The offences, says the Bench, were distinct : there was no charge of mutual abetment or con spiracy such as under Section 239 might possibly have justified a joint trial.

28. Here the facts arc very different, for the case for the prosecution, and it is that which must be looked at when we are considering the propriety of the charges, was that there was one sustained and continuous plot for the purpose of screening the real offenders in this robbery, and of exposing Tukya, an innocent man, to a false charge with a view that the accused or some of them might participate in the stolen property. To secure this end various means had to be resorted to. One of those means, and only one, a mere incident in the whole transaction, was the giving of false evidence in the prosecution of Tukya.

29. It appears to us, therefore, that Section 239 of the Code is distinctly applicable, and that, in the circumstances of the case, the joint trial was not only legal but was demanded in the interests of public time and public convenience.

30. We may add that during the course of the hearing before the Sessions Judge additional charges were framed against the fifth accused charging him with abetment of the other accused in respect of other offences committed in the course of this plot. The case in this respect resembles Emperor v. Datto Hanmant Shahapurkar ILR (1905) 30 Bom. 49 and here, as there, the accusation against all the accused persons is that they carried out a single scheme by successive acts done at intervals, but there was complete unity of project, and the whole series of acts were so linked together by one motive and design as to constitute one transaction within the meaning of Section 239. This preliminary objection must, therefore, be disallowed.

31. Coming to the merits and applying the evidence which, for reasons already given, we hold to be trustworthy, we cannot doubt the propriety of this accused No. 5's conviction of having intentionally given false evidence before the First Class Magistrate. It is true that the charge in this respect was not framed with all the precision desirable, but Mr. Binning candidly admits that he can make no point of this since his client certainly had full notice of the particular part of his deposition which was impeached as false. And that is unquestionably the fact. The deposition in question is Ex. 46, and in it this accused stated on solemn affirmation that he accompanied the first accused and the rest of the Police party on their first exodus from the village Patkul to the waste lands to the North; that there he saw Tukya running away; that he and others pursued and arrested Tukya; and that Tukya said he was a Mang from the Nizam's Dominions and confessed that he had committed the robbery at Pandharpur and had got the property. It is to be observed that in this original deposition there is nothing to suggest that the accused No. 5 did not accompany the Police party from the village Patkul itself-indeed that is the plain implication in the deposition; but the main ground upon which the deposition is now sought to be saved is, not that accused No. 5 was with the Police party when they started, but that after they had started and had been gone some minutes, a Constable came and fetched the Patil, who then followed the party to the waste land. It is plain that this rather fine distinction receives no countenance from the original deposition, but appears to owe its origin to the ingenuity of counsel seeking some means of harmonising the deposition with the accepted evidence. But the evidence is fatal to the suggested harmony, for on the evidence it is clear that the Patil did not accompany the Police party at any time on their excursion to the waste lands, but that he went there only afterwards when, after Tukya's pretended capture, he on the first accused's orders took out a Panch from Patkul. This is clear not only from the evidence of the accomplice Yadu and the witness Tukya, but also from the evidence of the witnesses Abaji Vinayak, Sakhya Hari, Shankar Hari, Chandya Khandoo and the two Panch men Krishna and Shivlinga. These last two witnesses prove further that when they and the Patil went out at the Sub-Inspector's summons, they lost their way to the particular spot where Tukya was in custody: there could have been no losing of the way if the Patil had only just returned from the spot after witnessing Tukya's capture.

32. There is nothing on the record to bear out the accused's present attempted defence or to suggest that the witnesses should not be believed. We must, therefore, come to the conclusion that the Patil did not accompany the Police party on their excursion which led to the seizure of Tukya, and all that part of his deposition, to which reference has been made, was false in fact. But if it was false in fact, it was certainly false to the accused No. 5's knowledge. He has been acquitted on the charge of complicity in the general conspiracy, and though the record contains matters of suspicion against him even in this respect, we are willing to accept the Judge's view as most in favour of the accused, and hold that he was no party to the conspiracy prior to the 30th of November. That, however, has no bearing upon the charge upon which he has been convicted, and which for the reasons given has, in our opinion, been fully established against him.

33. We have now explained the reasons for which, in our opinion, these convictions must all be affirmed. Our judgment has run to some length owing solely to the importance of the case, and not at all to the difficulty ; for difficulty there was none. No case in our experience has been more convincingly established. We need not waste words in reprobation of this crime. Such persons as the accused are not to be affected by mere words of whatever severity; they are to be reached only by sharp punishment and the fear of punishment. The sentences imposed by the Sessions Judge have been carefully considered by us, and having regard to the character of this crime, a wicked and cowardly conspiracy against a defenceless lad, we are unwilling to reduce any one of the sentences by a single day.

34. The convictions and sentences are therefore confirmed, and these appeals are dismissed.

35. In parting with the case we desire to place on record our high sense of the admirable work of the District Superintendent of Police, Mr. Kelly. It is to this Officer's detective ability, zeal and promptitude that the cause of justice is indebted for the exposure and punishment of this grave and carefully prepared conspiracy. A copy of these observations should be forwarded to Government for their information.

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