1. In this case seven persons, Dannu Singh, Tulshi, Gajja, Keso Daryao Singh, Girdhari Singh and Dilsukh, appeal from the conviction under Section 395, Indian Penal Code in connexion with a dacoity which occurred on the night of 7th October 1923 at the house of Umrao Singh at Natakpur in the Bareilly district. The police had been aware for a long time that a gang of dacoits under the leadership of a man named Dhani was carrying on a series of dacoities in the Bareiily district and were endeavouring to surprise and arrest them. They had received information that a dacoity was in contemplation at the house of Umrao on this particular night and the Circle Inspector Khan Bahadur Muhammad Sayid, with a number of police proceeded to the village secretly after dark and hid in a chaupal and other places adjacent to Umrao Singh's house. About 11 p.m. fifteen or sixteen dacoits came to the house, broke in, lit fires of straw at various places and commenced to loot the house. One of them had looked into the chaupal but failed to see the constables who were hiding under the wall and reported it empty. Shortly after the dacoits broke in, one of the constables coughed and revealed their presence. A gun was immediately fired by one of the dacoits. The Circle Inspector and the police with him came out and returned the fire. One constable was severely wounded in the thigh by a shot from a gun. Two of the dacoits were shot dead and two others were wounded so seriously that they died shortly afterwards. The other dacoits all escaped. A pistol and other articles belonging to the dacoits were found to have been left behind and on one of the dacoits who was shot a number of lead pellets were found. The two dacoits who were killed were afterwards found to be Brij Lal Nai and Nanhe Brahman. The two wounded men were Tilko and Dhimmi, the latter of whom was nephew of Dhani, the suspected leader of the gang. Both the two wounded men made statements to the police giving the names of a number of their associates, and in this way a clue was obtained. The accused were searched for and arrested on different dates. Dhimmi also made a dying statement in hospital in presence of a Magistrate. Dannu Singh was arrested on the morning after the dacoity under circumstances to be mentioned hereafter.
2. The prosecution sought to tender in evidence the dying statements made by Tilko and Dhimmi. The learned Sessions Judge rejected their statements to the police on the double ground that they were barred by Sections 25 and 26 of the Evidence Act as being irrelevant under the provisions of Section 32 of the Evidence Act. He has, however, admitted in evidence the statement made by Dhimmi to a Magistrate and has attached so much weight to it that he treats it as conclusive against the persons whom Dhimmi named. In this the learned Judge was in error. If Dhimmi's statement to the police was barred by Section 32 his statement to a Magistrate was equally barred by the same section. Dhimmi was not a witness at any stage of the case and he was not examined in presence of the accused nor subjected to cross-examination. There is therefore no provision of law except Section 32 of the Evidence Act under which his statement could be admitted. The learned Judge aaya that this section cannot apply because in the first place the statement does not relate to the causa of Dhimmi's death, and in the second place Dhimmi's death does not come into question in this case. The first of these reasons is hardly correct. Section 32 allows proof of a statement made by a person as 'to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death.'
3. His statements therefore as to the circumstances of the dacoity is in this case a statement as to the circumstances of the transaction which resulted in his death. The second reason is, however, a valid one. Dhimmi's death is not an issue in this case and is only relevant as one of the incidents of the dacoity. The question to be decided in this case is not whether Dhimmi participated in the dacoity but whether the accused who were on their trial took part in it. Dhimmi's statement was, therefore, inadmissible, and the case must be decided without reference to it. It is only in the case of the appellant Dilsukh that this point is material.
4. The evidence against the appellants consists of the most part of the evidence of witnesees who picked them out as having been present in the dacoity at an identification parade held at the jail and who in their evidence swear to them as having been present together with evidence of the circumstances under which they were arrested. One of the appellants, Keso, made a confession before a Magistrate, in which he implicated himself, Dhani and three of the appellants, Tulshi, Gajja and Dilsukh. This confession he afterwards retracted, but the learned Judge has accepted it as genuine. Besides this there is the evidence of Balwant Singh who acted the part of an informer and who says that he went with the dacoits to the scene of the dacoity but slipped away just as they were entering the house. With him was the witness Naubat whom the Sub-Inspector had deputed to accompany him. The learned Sessions Judge has not relied on their evidence and has criticized Balwant in particular as a wholly unsatisfactory witness.
5.Dannu Singh was arrested under the following circumstances. As soon as the dacoits escaped parties were sent in various directions to try and out them off. Among other places which ware washed was the river crossing at Tirkuniya Ghat, six miles from Nakatpur. Just after sunrise Dannu Singh came that way prepared be cross the river. Catching sight of a chaukidar who was standing by the ferry he ran away when ha was still a hundred paces distant. Ha was pursued and caught in a bajra field. He was than taken to the thana. There the Circle Inspector recognized him as the man who had come up to the chaupal at the commencement of the dacoity while the police ware hiding Shore and had reported that the chaupal wag empty and that it was all right, His defence is that he was returning from a visit to his brother-in-law and that he was arrested because the constable at the ferry demanded Rs. 10 from him and ha refused to pay. The evidence against him is sufficient.
6. Tulshi, Gajja and Kasho have been 'identified by four, six and four witnesses respectively. Kosho made a confession, in which he implicated Tulshi and Gajja as wall as himself. Tulshi and Gajja are brothers, Gajja is a tall man, and, according to the confession of Kesho and the evidence of Balwant, was known among the dacoits by the nickname of 'Lamaiya' or the long man. The Circle Inspector confirms (she fact chat at the time of the dacoity the dacoits ware addressing one another by nick-names. He heard among others the name of 'Lakarbaz' which, according to the evidence of Balwant Singh, was the nick-name of Dhani, the loader of the gang. It is right to say, however, that when Kesho after his confession was asked to identify these people on their arrest he identified Gajja and not Tulshi. One or two of the identifying witnesses also named one wroug mm, but none of thorn more than one. Except that Gajja objected at the identification by Kesbo that Kesho had known him before, no objection appears to have been made to the identifications at the time. The witness Chokhe says that both Gajja and Kesho had lathis in their hands when he saw Sham at the dacoity. Against Tulshi there is the further damning circumstances that at the time of his arrest a fortnight after the dacoity 22 gunshot wounds were found in his left hand, buttock and thigh. The defences put forward by these appellants are most improbable, and I agree with the learned Sessions Judge and the assessors that they are clearly guilty.
7. Daryao Singh is named by Balwant alone, but the learned Judge and the majority of the assessors have accepted Balwant's evidence as reliable in this instance because it is corroborated by the evidence of the witness Nimmi. This man is a relative, probably the father's cousin, of Brij Lal, one of the dacoits who was shot dead, and was at Brij Lal's house when Brij Lal left home on the night of the dacoity. His evidence is that three men, the accused Daryao Singh, Girdhari Singh and Tilkha or Tilok Barhi, one of the two dacoits who were wounded and afterwards died, came to Brij Lal's house just after dark and whispered to Brij Lal in the courtyard. Brij Lal took up his lathi and chadar and want away with them. When Nimmi asked Brij Lal where ha was going, he said : 'I am going somewhere ; you had better go ta sleep.' He did not return. Next day the witness learnt that Brij Lal had been killed at the dacoity at Nakatpur. A week later he spoke about the matters to the zamindar of the village, and the zamindar appears to have informed the police. Nimmi impressed the learned Sessions Judge as a truthful witness and no reason was suggested either in cross-examination or by Girdhari Singh or Daryao Singh in their statements before the committing Magistrate as to why he should have given false evidence against them. Ia the Sessions Court Girdhari Singh suggested that Nimmi was a cousin of one Teja with whom ha had enmity; but this suggestion put forward at this late stage does not carry any weight. After considering carefully the evidence of Nimmi I see no reason for overruling the opinion of the learned Sessions Judge in this matter. Against Girdbari Singh in addition to the evidence already considered against Daryao Singh there is also direct evidence of identification by three witnesses. The identifications have been attacked on the ground that Girdhar Singh is a one-eyed man and therefore easy to pick out. But on the other hand this very circumstance may have served to impress his appearance on the minds of those witnesses who noticed him. As the learned Sessions Judge says, there has certainly not been any wholesale identification in his case; for only three out of fifteen identifying witnesses succeeded in picking him out.
8. Against the appellant Dilsukh the learned Sessions Judge has relied largely on the dying statement of Dhimmi which I have found to be inadmissible. Putting this aside the only other evidence against him is the statement of Balwant which the learned Sessions Judge has declined to accept, where uncorroborated, and the fact that he is mentioned in Kesho's confession. The only definite statement regarding this accused is that Kesho agrees with Balwant in saying that this accused is the man known among the dacoits as 'nashabaz.' It appears to me very doubtful whether the learned Sessions Judge would have convicted him if he had not accepted the statement of Dhimmi as conclusive against him. It appears to me that be must be given the benefit of the doubt, and I accordingly allow his appeal, and acquitting him direct that he be set at liberty. The appeals of the other accused are dismissed.