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Debi Dayal and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.672
AppellantDebi Dayal and anr.
RespondentEmperor
Excerpt:
evidence - approver's evidence--corroboration--retracted confession of co-accused. - .....and on the 13th of july nagarjit and his son ram charan were taken to the district jail where the accused persons mixed with other under-trial prisoners were shown to them to see if they could pick out the dacoits. nagarjit with some hesitation picked out sheo dayal. he also picked out another man, who had nothing to do with this dacoity and stated that he suspected him. his son, ram charan, picked out sheo dayal, baz singh, buddhu and pirthi, four of the present accused, identifying them as four of the dacoits. there was a person named by the approver behari as the son of daryai as having taken part in the dacoity. behari singh pointed out the accused dharma as the man whom he had mentioned as the son of daryai. at the magisterial inquiry, behari singh was given a conditional pardon.....
Judgment:

Tudball, J.

1. The fifteen appellants, Debi Dayal and others, have been convicted of dacoity under Section 397 of the Indian Penal Code, and have been sentenced to ten years' rigorous imprisonment each, together with a fine of Rs. 100 each or in default to undergo one year's further rigorous imprisonment. The fact of dacoity is beyond all doubt. On the 15th of June last, a moneylender in Kuberpur, named Nagarjit, was attacked by some twenty or thirty men at about midnight. He was sleeping outside as also was his son Ram Charan, another son was sleeping on the roof and the other members were sleeping inside. Nagarjit was aroused and found himself surrounded by a number of men. He was beaten and one of his arms was broken and he was seized by the dacoits. Some of them climbed up a tree and from there on to the roof and opened the door from inside. Nagarjit was taken inside, was branded on the face and was made to disclose the money and ornaments. His wife was beaten. His son, Ram Charan, was sleeping on a cart. He was struck with a lathi and he hid himself beneath his cart. Some of the dacoits had fire-arms, which they fired off from time to time. The looting of the house took about an hour or an hour and a half, and then Nagarjit was taken out of the house and further ill-treated and the dacoits decamped. The matter was reported the same night and inquiry started the next day. A list of the property was given by Nagarjit. On the 30th of June, the Police officer received certain information which led him to the village of Jaili where he searched the houses of certain persons. Behari Singh, the approver Khushhal, Ganga Din, Gajju and Baz Singh were five residents of the village who were absent from their homes on that date. On the 5th of July, the Police received information that these five men had returned and the Sub-Inspector at once went to the village. The five men were arrested and finally all five of them made statements. In one case, the statement led to the recovery of part of the stolen property from the possession of one Pohap Singh. In the other cases, each man handed over to the Police certain items of property all of which have been identified by Nagarjit. On the 6th of July, these persons were placed before a Magistrate. Each made a confession implicating himself and his other four companions and other persons in the commission of the dacoity. These statements led to the arrest of the other accused and on the 13th of July Nagarjit and his son Ram Charan were taken to the District Jail where the accused persons mixed with other under-trial prisoners were shown to them to see if they could pick out the dacoits. Nagarjit with some hesitation picked out Sheo Dayal. He also picked out another man, who had nothing to do with this dacoity and stated that he suspected him. His son, Ram Charan, picked out Sheo Dayal, Baz Singh, Buddhu and Pirthi, four of the present accused, identifying them as four of the dacoits. There was a person named by the approver Behari as the son of Daryai as having taken part in the dacoity. Behari Singh pointed out the accused Dharma as the man whom he had mentioned as the son of Daryai. At the magisterial inquiry, Behari Singh was given a conditional pardon and was examined as a witness. Baz Singh, Khushhal, Ganga Din and Gajju retracted their confessions. The question in the case of each of the appellants is whether or not there is sufficient evidence on the record to prove his participation in the dacoity.

2. In the case of the other eight appellants, however, the approver's evidence stands uncorroborated unless we may say that the four retracted confessions afford corroboration. It is true that those retracted confessions may be taken into consideration against those four men and their co-accused. But they stand on a very much lower level than the approver's evidence. The latter was taken in the presence of the accused and stood the test of a long cross-examination. The retracted confessions were taken behind the accused's backs and they had no opportunity whatever of cross-examining the persons who made them and though they may be evidence in the strict sense of the word, they do not constitute corroboration of a high value, and without corroboration the approver's evidence is not sufficient basis for conviction in the present case. Except under special circumstances, it would be dangerous in this country to convict on the approver's evidence supported only by retracted confessions of co-accused persons. At least, it does not satisfy me that it proves beyond doubt the guilt of Bachchu, Dharma, Nijju, Bidhi, Debi Dayal, Raghuber Dayal, Parshadi and Dwarka. I, therefore, admit their appeals, set aside their convictions and sentences and direct that they be released. As regards the appellants, Baz Singh, Buddhu, Sheo Dayal, Pirthi, Khushhal, Ganga Din and Gajju, I uphold the convictions and sentences and dismiss their appeals.


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