John Edge, Kt., C.J. and Aikman, J.
1. Pirbhu and seven other men who were convicted of the offence punishable under a. 396 of the Indian Penal Code have appealed One of them' Gobind, was convicted of abetting. The dacoity in Son was one which was carried out by some 22 or 25 men They came under different leaders and from different districts of the country, and those who we e not armed with carbines or blunderbusses or swords earned latins. The lagers showed great pluck: they assembled and boldly attacked the dacoits: one of them was killed by the dacoits, and several were more or less severely wounded.
2. As to two of these appellants, Pirbhu and Kishan, they pleaded guilty in the Court of Session; and indeed it would have been useless for them to have attempted a defence, for when the body of dacoits escaped these two men were looked into the room in which they were, and were kept there until the police came Pirbhu was armed with a blunderbuss, which, in firing, burst. He has be sentenced to death, and most rightly sentenced We dismiss, his appeal, confirming the conviction and the sentence of death, direct that the sentence be carried into effect.
3. As to the other men, the evidence clearly shows that they took part in the commission of this dacoity. It appears to us that Nathu Singh, the informer, gave a true account of what took place and spoke truly as to these appellants. His evidence is corroborated as to each of the appellants by one or more witnesses whose truthfulness and accuracy we have no reason to doubt. There is one witness for the prosecution who was called in the Court of Session, on whose evidence we do not rely, and that is Dalla who identified all the accused at the Sessions trial. All these men, except Pirbhu Gobind and Khimmi were sentenced to transportation for life. We think the Sessions Judge adopted a very lenient course in merely passing a sentence of transportation on these men it was a most daring dacoity, and the dacoits were determined to carry it out regardless of life. Gobind and Khimmi have been sentenced to ten years' rigorous imprisonment. As to Gobind, if the case had been tried by us, he would assuredly have been sentenced to transportation for life. There may be a good reason in the case of Khimmi, in view of his youth, why a sentence of ten years was sufficient. We may mention that in arriving at our conclusion we have not relied on the statements of Pirbhu and Kishan, as they, having pleaded guilty, were not on their trial. Nor have we placed any reliance on the dying statement of Kirat Singh. It is not necessary to go into the matter, but we may say that we consider that his statement was not admissible in evidence.
4. Some of the appellants plead that their witnesses were not examined. So far as we can judge from the English record, they did not call any witnesses at their trial. As, however, it is a frequent ground of appeal that the Court of Session has refused or omitted to examine witnesses for the defence, it would be advisable for Sessions Judges to state specifically in their record whether or not the accused had present witnesses, and whether or not the accused refused to call witnesses to call were examined. We dismiss these appeals.