1. This appeal concerns a dacoity said to have been committed and which was undoubtedly committed, at the house of Brij Rai Pandey, in the village of Pipra Hamail, in the Gorakhpur district, at some time in the middle of the night of the 27th-28th July 1924. The police station of Hata was five miles off, and the first report was made at 10 a.m. on the 28th. One of the alleged dacoits, Dukhi, was captured on the spot, and on the 31st of July, he was taken before a Magistrate and made a confession recorded under Section 164 of the Code of Criminal Procedure, and he has not retracted from that confession though he has filed an appeal from jail. His uncle, Nagri, says that he, Nagri, gave himself up after having consulted the karinda of his zamindar. He suggests that he was alarmed when he found that one of the dacoits, his nephew Dukhi, was missing, and apparently thought it advisable to consult the karinda as to the best way of saving his own skin. On the other hand, a constable takes to himself the credit of having arrested Nagri because he noticed that he had injuries. It is not really material to determine which of these two versions is correct, for the really important question is whether we can believe in substance the confession of Nagri recorded under Section 164 on August the 1st. Two other of the appellants before us, Chilar and Palku, also made confessions on August 3rd and August 4th, which were recorded under Section 164 but which they have retracted. As a result of these confessions and of the subsequent investigation, 19 men were sent up for trial of whom the learned Sessions Judge has convicted 12 who are now the appellants before us. One very important question which arose for decision in the case was as to whether this was an ordinary dacoity in which the purpose of one and all of the dacoits was to loot, or whether it was an attack on the house of Birj Raj of which the motive was the personal animosity of a man called Nirhu, Mukhia of the village of Pipra Hamail, and his supporters. Birj Raj alleges that such enmity existed, and it is admitted on all sides. It was due to the rivalry between Nirhu and Birj Raj for the post of Mukhia when Mangal, the previous holder, died. In this rivalry Nirhu had so far succeeded that he had been appointed. A number of witnesses, chiefly Birj Raj and those under his control in the sense of being members of his family or servants, named Nirhu and others of Nirhu's family. Of those all have been acquitted with the exception of Munshi, who was a cousin of Nirhu. The fact, however, that Munshi has been convicted means that the question remains of some importance as regards his case as to whether this was an ordinary dacoity, or whether it was due to personal animosity, even though a number of those taking part in the attack may have had no motive of enmity themselves, and had merely joined for the sake of what they might be able to get out of it. One fact is clear that they got very little out of it, if anything. No property of any sort or description has been recovered with the exception of a hamel, which was said to have been found in a bagh close by, and two or three articles said to have been taken off the person of Dukhi when he was captured on the spot. According to the prosecution evidence as appearing in the statement of the approver and the confessions of some of the accused, it would appear that the dacoits had very definite information that several Gharas filled with rupees would be found buried under the cot of one of the women living in the house. No serious attempt appears to have been made to get at this money. The only evidence on the record pointing in this direction is that the investigating officer says that he found the ground at one place dug up in Mt. Gomti's room. No attempt was made at the trial to get anything further out of the Sub-Inspector or out of the approver as to why, if it was known that the money was in a particular spot and the object of the dacoity was only loot, some of the dacoits at least did not go straight for that spot and make a serious effort to get it. Another feature of this dacoity is that there were at least 28 men who are said to have taken part in it, while the only men sleeping in the house of whom we hear are Birj Raj complainant, his younger brother Rajendra, and a man called Gudri who was sleeping with them. Three women, of one of whom we hear nothing further, were sleeping inside with two children. The story of the attack on the house really amounts to little more than the beating of Birj Raj and his brother Rajendra, and the snatching of some ornaments from the persons of two of the women. A number of slight injuries appear to have been inflicted, some of them apparently with a pointed weapon alleged to be a spear, but there was nothing in the nature of really serious injuries. On the other hand, some of the dacoits themselves received spear wounds also of a minor description, and apparently inflicted either with the spear that one of the party took with him and which was snatched from him, or with spears which the inmates of the house possessed. The whole occurrence described could not have taken really more than a minute or two before the dacoits fled upon the approach of the villagers. The whole incident, to our minds, indicates that it was rather in the nature of an attack on Birj Raj with a hope and expectation on the part of some of the assailants of getting some loot, rather than that of a determined dacoity for the purpose of loot and loot only. Further, we find in the statements of the approver and of the confessing accused, indications that the dacoits were not old hands at the game, and were rather to be described as bad characters of a petty sort, and, lastly, we find that there is not a single previous conviction against any one of them of any serious offence of violence such as would permit the use of Section 75 of the Indian Penal Code. The general conclusion from these facts and the general impression that we have formed from the evidence on the record is that it is more probable that the origin of the attack is to be found in personal enmity against Birj Raj and his household, rather than in the sole intention to loot. If we express ourselves in regard to this part of the case somewhat vaguely, it is only because owing to the nature of the trial in the Sessions Court, where no proper attention was directed to this point, and where there are no reliable indications in the evidence on the record. The next point upon which we will comment is the statement of Nagri recorded under Section 164. We find that the Magistrate in recording that statement at first approached it in a proper manner. He satisfied himself that the statement was of a voluntary nature, and then proceeded to take it. Nagri detailed his whole story. He had come to within the last few lines of his statement when for the first time he mentioned one of the present appellants before us, namely, Hasan Ali. He said: 'In the morning I enquired from Bandhu, Jahangir, Hasan Ali, Sundar, Mundar and Muneshar, but they said that they had got nothing.' This was his first and only mention of Hasan Ali. The Magistrate then put him the question: 'You have mentioned above the name of Hasan Ali; did he also take part in the dacoity,' and the answer was: 'Hasan Ali also took part in the dacoity,' and the deponent went on to say further things about him. The Magistrate next asked: 'What more do you want to state?' In reply to this very proper question the narrative given by the witness continues for some time, but it very soon is apparent from the record of his statement-though question and answer are not recorded that the Magistrate was beginning to ask him questions and the further we go into the record of the statement, the more apparent it is (questions and answers being sometimes recorded) that the remainder of his deposition was solely elicited by questions put to the deponent. The Magistrate himself in his evidence has stated to the Court: 'All the questions put to Nagri are not recorded.' It is manifest from the statement that is so. Strong objection is taken by Mr. J.M. Banerji, particularly on behalf of Hasan Ali, to this procedure. We think his objection is entirely justified. It would be going much too far to say that a Magistrate recording a statement or a confession under Section 164 cannot and should not ask a single question of the deponent. But it is equally certain that his position when recording such statement or confession, is merely that of a recording Magistrate, and that he is in no sense enquiring into the case, and that he is in no sense an Investigating Officer. The whole object of the section is very clear. Such statements and confessions made to a police officer are not regarded as being made in circumstances which justify a Court, under ordinary circumstances, in relying upon the record of them, and they cannot be ordinarily put in evidence. But it is desirable that if a witness is really willing to make a statement, or a guilty person is really willing to make a confession, that a record of that should be made in such circumstances as may make it reasonably safe to rely upon it. We think that the Magistrate would be justified in, and ought in the ordinary performance of his duties to clear up any matter which is ambiguous on the face of the statement, but that ho is wholly unjustified in extracting by questions from the deponent facts which the deponent has not spoken to in his Court and facts of which the Magistrate himself would only be aware because he has been supplied with some copy of a statement which somebody else alleges the deponent has made and is willing to make again before the Magistrate, or unless he is prompted by somebody who is aware of such facts.
2. Every thing must depend on the nature of the questioning and the object of it; and the mere fact that an answer was elicited by a question does not make the proceedings improper, or the statement inadmissible as a confession. In the present case it is clear that the deponent had left the matter of Hasan Ali ambiguous. He had already mentioned fives men as amongst those who had taken part in the dacoity. He then described himself as making an enquiry the next morning about their share of the loot from these five men, and adding a sixth man. The Magistrate was quite right to notice that the facts were left ambiguous as regards this sixth man, and he might very well have said to the deponent: 'Why did you ask Hasan Ali if he had received any of the loot?' But the form of the question which he actually put in a leading form: 'Did he also take part in the dacoity?,' was open to exception. We have said enough to indicate the nature of the questioning which we think is permissible under Section 164, and it is unnecessary to pursue the record of this statement further, for it is obvious on the face of it that a very large number of the questions asked were not prompted by any wish to clear up an ambiguity, but were based on a knowledge of the statement which the deponent might be expected to make, obtained from some record given to the Magistrate or from information supplied to him orally. It is clear that the questions were questions which could not have been prompted by anything which the deponent had himself said before the Magistrate.
3. Another point on which the record of the statement is defective is that under Section 164 the Magistrate is bound to record every question that he asks. This he clearly did not do, and admits he did not do. It is of great importance that this provision of the law should be obeyed, otherwise it may be impossible to tell how far a witness voluntarily deposes to a matter, and how far it was extracted from him by questioning even in the nature of cross-examination.
4. In this case we do not think that the irregularities we have mentioned should lead us in any way to reject the confession, because the witness has given evidence on oath, and his confession is really only of importance as corroborating or contradicting that evidence given in Court. But the defects might very well, under other circumstances), have been of vital importance.
5. We turn now to a consolidation of the case against each of the accused. As regards Hasan Ali the chief feature of the case is that he and his brother Bandhu are the only two Muhammadans who are said to have taken part in this dacoity. This is no doubt a striking feature. But we note first of all that Hasan Ali and his brother, if he was in it, should not be regarded as being the only two Muhammadans of a party of 28; for it is not suggested that they had anything to do with any others than the five men who are said to have come from Dumri. Even so regarded, it is still urged that they are not said to have been particularly brought by Nagri, who was no doubt the leader of the Dumri party. Both of these considerations deserve weight, but we do not find that they are of sufficient weight to override the direct evidence given by the witnesses who name Hasan Ali; We should note that Bandhu has been acquitted. He was the elder brother of Hasan Ali. He may be said to have been acquitted on two grounds: one that Nagri and he had fallen foul of each other some time before the dacoity, and it would be quite conceivable that Bandhu's name had been put in by Nagri and by others at Nagri's instigation. It is argued that the mere enmity which would induce Nagri to name Bandhu, would induce him to put in the name of Hasan Ali. This is a fair argument, but we find that the name of Hasan Ali is not only mentioned by Nagri, but the case of this man is distinguishable from that of Bandhu in that he is named in addition by Brij Raj, Gudri and Dwarka, while Bandhu was only named by Nagri and Qayamat. It is suggested that Birj Raj, Gudri and Dwarka were naming Hasan Ali to please Nagri and that it was in the nature of a return for his attributing the dacoity to an organization carried out by Nirhu. In other words that Birj Raj said: 'You name Nirhu to please me, and I will name Hasan Ali to please you.' But we think that if there had been any force in this contention, Nagri would have asked Brij Raj to name not Hasan Ali but Bandhu, or at any rate Bandhu as well as Hasan Ali. But we find in fact that Brij Raj does not even suggest that Bandhu was in the dacoity. We find ourselves therefore unable to reject the evidence of Nagri as corroborated by Brij Raj, Gudri and Dwarka. With the question of sentence we will deal later.
6. Similarly, in the case of Sundar we find it impossible to reject the evidence of Udit corroborating that of Nagri. We give no weight to the confessions of Palku and Chilar who did not identify Sundar in jail, nor to the evidence of Jan, who evidently did not give the Judge the impression of being an honest witness. But we find nothing whatever to be said against the evidence of Udit. We have referred to the fact that Palku and Chilar, the two confessing accused, did not identify Sundar in jail. The procedure was unusual. It would appear that the police had on the 2nd of August an idea, hope or expectation, that Palku and Chilar would confess, as they did in fact confess, on August 3rd and 4th. They probably had further the idea that one or both of them might be made into approvers. They may have wished to put the other accused up to be identified by these two men with a view to get these identification proceedings carried out very early and thereby strengthen their value if the men subsequently were made approvers. On the other hand they may have desired to tie Palku and Chilar down very quickly after having brought some pressure to bear upon them. There is no sufficient evidence as the matter was not cross-examined upon to enable us to say whether this procedure was excusable or reprehensible. We are more concerned now with the actual facts, and while at first sight it would seem that the statements of Nagri and Udit must be received with great caution because Palku and Chilar both failed to identify Sundar in jail, yet that consideration becomes of little moment when it is appreciated that Palku and Chilar, not having yet confessed in Court and not having yet any offer made to them of a possible pardon, would naturally think it wise to be cautious and prudent not to identify at that stage any of the accused. The record of the identification proceedings suggests very strongly that this is what happened. We do not think therefore that the evidence of Nagri and Udit can be discounted by the fact that Palku and Chilar did not identify him in jail.
7. The evidence against Mundar requires no detailed discussion. He was named by Nagri, Rajendra, Sharifa and Bandhu. Of these men Sharifa made three right identifications. His evidence was not accepted as sufficient against Muneshar, but the Judge evidently thought that possibly the witness was making an honest mistake and not deliberately naming anybody falsely.
8. The case of Sidhu is on a different footing to the other three. Corroboration of the approver is only to be found in the statement of Qayamat. The Judge has found Qayamat's statement insufficient corroboration of the approver in the case of Bandhu, and he said that he would hesitate to act on the solitary identification by Qayamat. We do not see any material distinction between the case of Sidhu and the case of Bandhu in this respect. We therefore acquit Sidhu.
9. The case of Munshi has really been established by overwhelming evidence, and the only difficulty that we had in his case was to determine whether there was really nothing but an ordinary dacoity, or whether it was a dacoity instigated by personal enmity. With that question we have already dealt, and we have shown that the evidence in our opinion is in favour of the fact that the dacoity was organized owing to personal enmity. If this is so, there is nothing improbable in the presence of Munshi.
10. The case against Bhuindhar is supported by the approver and the confessions of Dukhi and Chilar. While we do not lose sight of the importance of remembering that all these three statements are in the nature of tainted testimony, we think that we can safely rely upon them, at any rate in the case of this man.
11. With the case of the other six appellants we see no reason to deal in detail. Three of them, Palku, Chilar and Dukhi are men who have confessed and as regards the other three, we see no reason to differ from or to criticise the conclusions of the learned Sessions Judge.
12. The result is that we maintain the convictions of all the appellants except Sidhu, whose conviction we sot aside and direct his release. In the view that we have taken of this dacoity and in view of the injuries inflicted we think that the learned Sessions Judge has taken in unnecessarily severe view on the question of sentence. We agree with him in thinking that Chilar, and Palku, Nepal, Nabshi and Manohar are men whose conduct in the dacoity calls for a more severe sentence, but we think that under the circumstances of the case transportation for life is excessive. We therefore in the case of these five men reduce the sentence from transportation for life to one of five years' rigorous imprisonment, and we set aside the conviction of Munshi under Section 397 maintaining the conviction under Section 395 and reducing the sentence as we have stated. The sentence passed on Dukhi, Sundar, Mundar, Bhuindhar and Birbal we reduce from 10 years' rigorous imprisonment to three years' rigorous imprisonment. Of the remaining two accused we have already acquitted. Sidhu. Hasan Ali is only 22 years of age and on that account has been given a smaller sentence, but we think a sentence more severe than that is called for. We accordingly reduce the sentence passed on him from five years to a sentence of 1 year' rigorous imprisonment.