1. Of the three appellants Baijnath has been convicted of offences under Sections 380 and 414, Penal Code, and sentenced to two years' rigorous imprisonment under each. The other two appellants, Gorakh Nath and Sarju Singh have been convicted of offences under Section 414 and sentenced to two years' rigorous imprisonment, and all the three appellants have also been convicted under Section 120-B, Penal Code, and sentenced to two years' rigorous imprisonment under this section as well. The sentences are all concurrent.
2. The case for the prosecution is that Baijnath stole a package of Rs. 1,800 in Government currency notes from the safe of one Sat Narain, who is the local agent at Bindki, Fatehpur District, far the firm of Ramjiawan Munni Lal of Calcutta. The notes were missed soon after they were taken, and Baijnath, on whom suspicion fell, made two confessions in the presence of some witnesses, but retracted them. He afterwards dug up the notes from a field and gave some of them to Gorakh Nath, the appellant, and some to Babu Lal a witness, who says that he handed them over to Sarju Singh, appellant. Such in a very brief form is the story of the offence which has been held to be proved by the Sessions Judge. The evidence is however complicated, and the judgment, though very full, contains a good deal of unnecessary matter. The case for the prosecution falls naturally into two parts : firstly, the circumstances relating to the theft of the notes and the way in which suspicion fell on Baijnath and secondly, the production of the notes by Baijnath in the presence of Gorakh Nath and Babu Lal, who is said to have handed them over to Sarju Singh. The first part is supported by the statements of witnesses who appear to have been reliable and whose evidence has not been shaken in cross-examination. The second part largely rests on the evidence of Babu Lal, who as I shall show, must be regarded practically as an accomplice, so that his evidence has to be scrutinised extremely carefully in every detail and corrborated in such a way as to prove not only that the offences were committed, but that each of the present appellants took part in them or some of them.
3. Sat Narain, who is really the complainant made a statement to the following effect. On 8th January 1934, about 7 or 8 p.m., he put notes to the value of Rs. 1,840 in his iron safe. Of course Rs. 1,800 were done up in one bundle. When he put the notes away Raja Ram his 'munib,' Baijnath the appellant and Deokumar Chaubey were present. Deokumar, like Baijnath had come to Bindki on business and had been staying at Sat Narain's shop for about two months. The iron safe itself was shut by a padlock which has a single lock. There is however an inner lock to the safe, and the key of this was put in a separate box, and this box was also locked. The key of the padlock of the safe and that of the wooden box were tied to the 'janeo' which Sat Narain was wearing, and this he explains was his ordinary practice. After locking the money away Sat Narain went to sleep on what is called the 'gaddi' of his shop and Baijnath and Deokumar also went to sleep there. Next morning Sat Narain and Beokumar went to the bazar leaving Baijnath alone in the shop. At about 3 p.m., Sat Narain returned; and as he wanted to get money out of the safe, he searched for his keys, but found that they had disappeared from Iris 'janeo.' He ordered a search and attended to other business. He evidently at first did not suspect that anything had been taken out of the safe. At about 8 p.m., however he sent for a 'mistri' to break it open and then he found that the bundle con-containing Rs. 1,800 in notes had disappeared, whereas all the other money; and valuables in the safe remained intact. Baijnath was present when the safe was broken open. On realising his loss Sat Narain consulted Sheobalak, a military pensioner, who lives on the premises and appears to be a man of character and respectability. Sheobalak took up the inquiry, and after he with Sat Narain, Deokumar, Baijnath and Raja Ram Munib had gone to the upper story he pointed out that the money must have been taken by someone in the shop, and recommended whoever had taken to return it, otherwise there would be trouble with the police. Sheobalak appears to have suspected Baijnath, who at first denied liaving taken the notes, so that the others left him on the upper story with Raja Ram 'munib' for a tune. Presently Raja Ram called Sheobalak back. From this stage the story is taken up by Sheobalak. He says that he went back to the shop, when Baijnath fell at his feet and confessed that he had made a great mistake and promised to hand over the notes to Sheobalak, but implored him not to go to the police. In answer to an inquiry he further confessed that he had put the notes in the shop of Jaidayal Madangopal. Raja Ram, the 'munib,' it should be mentioned, was present when Baijnath made his confession, and went along with the other two. When they arrived at the 'kothri' outside the gate of Jaidayal Madangopal they found that Sarju Singh, the appellant, and Babu Lal were taking food inside. They appeared to be surprised, but both came out to meet the visitors and then all went in together. Sheobalak told Sarju Singh and Babu Lal what had happened, and Baijnath caught Sarju Singh by the hand and took him aside and said something to him which the others could not overhear. Sarju Singh, however told Baijnath to give back the notes if he had taken them.
4. On this Baijnath denied that he had taken the notes. Sheobalak said that he must pay the money or go to the police. After a good deal of hesitation Baijnath asked Sheobalak to wait for five minutes and went to talk with Sarju Singh again. However nothing came of it, and Sheobalak took him towards the 'thana' accompanied by Sat Narain and Raja Ram. When they reached the 'thana' Baijnath said that he had handed the notes over to Gird-hari in the firm of Baldeo Prasad Debi Dayal and the party therefore proceeded to that shop. But Girdhari denied that he had to do anything with the notes. Raja Ram and Sheobabalak again started to take Baijnath to the 'thana.' On the way they met Gorakh Nath, Constable, the appellant, who asked them to hand over Baijnath to him for half an hour, assuring them that within that period he would return with him and the notes for Rs. 1,800. Sheobalak was very unwilling to do so, but on Gorakh Nath swearing on oath to the effect that he would bring Baijnath and the notes, he allowed Gorakh Nath to go away with Baijnath. At the end of an hour, when Gorakh Nath did not return, Sheobalak again went to the 'thana'; and Gorakh Nath coming out told him that the 'work was complete' and that he should wait for another half hour. Sheobalak came away, and again after waiting fruitlessly for an hour went to the 'thana.' It was now about 1 or 2 a.m. He learnt that Gorakh Nath was no longer at the 'thana,' so he went back to his room. Before sunrise Sat Narain and Raja Ram came to inquire as to progress, and Sheobalak told them what had happened, and asked them to go to the Post Office to find out if any Benares man had sent an insured letter or money order. As he was waiting in the verandah, however Sheobalak saw a man in a green 'chadar' going to the Post Office, and suspecting that it was Baijnath he went after him and met him near the Post Office. He recognized him as Baijnath and tried to catch him but Baijnath ran away towards the 'thana' leaving his 'chadar' in Sheobalak's hands. The latter pursued Baijnath who was stopped and asked him where he had been all the night. Baijnath replied that he had been in the bungalow of the Sub-Inspector. He also said he did not know Gorakh Nath. Sheobalak then spoke to the Sub-Inspector and reported the story. When he named Gorakh Nath, the Sub-Inspector did not wish this to be recorded, because he was a Constable; but Sheobalak insisted. As Gorakh Nath had gone out they waited for his return. He returned at about 10 a.m., Gorakh Nath denied all knowledge; but when Sheobalak repeated his story, he 'hung down his head and stood silent.' The report was then written in full by the the Sub-Inspector at Gorakh Nath's dictation, and is Ex. A, on the record. It is easy to understand from the above how it came to be dictated by Sheobalak, and not by Sat Narain, the victim of the theft. Sheobalak also explained that he was afraid that Baijnath would make a report against him, as in fact he had done. It will be seen that the report accuses Baijnath of the theft; and also accuses Gorakh Nath of failing to fulfill his promise to bring Baijnath and the money to him, but it does not in terms suggest that Gorakh Nath himself had been a party to the theft or the concealment of the notes, nor does it make any complaint against Sarju Singh. Nor, indeed, does there seem to have been any reason why Sarju Singh should have been suspected by Sheobalak at that stage.
5. The statement of Sheobalak is a very circumstantial one, and it is supported by the persons mentioned in it, except of course the appellants. Sat Narain and Raja Ram especially have made long statements, and all these three witnesses were subjected to long and. searching cross-examination without however being shaken in any material, respect. It should be mentioned that the cross-examination of Sat Narain does not challenge either the story about the loss of the notes or the confessions of Baijnath, and although the defence attempted to show that Sat Narain could not have been in possession of such a sum as Rs. 1,800 they utterly failed to do so. It appears-therefore that implicit reliance is placed, on the statements of these witnesses. I will now pass on to the second part of the case. Babu Lal is a 'munib'' in the shop of Jaidayal Madangopal and works under Sarju Singh, the appellant, who is the head 'munib' of the firm. His statement is to the following effect:
About five months before his statement, that is to say, about 9th January, he and Sarju Singh were taking-food in the 'kothri' when Sheobalak. Raja Ram and Baijnath. came there and then he gives a description of what happened very much to the same effect as Sheobalak's. He mentions that Sarju Singh and Baijnath had some-conversation apart and that Baijnath said 'I have taken, but I would not return to the sales,' and that Sarju. recommended him to return the notes. It was about 9 or 9-30 p.m., when Sheobalak and others left, and a little-later Ram Prasad 'palladar' called out from the gate and Sarju Singh told, him to go and bring Gorakh Nath on an urgent matter. Ram Prasad came back from Gorakh Nath with an excuse; but Sarju Singh again sent a message that he would get Gorakh Nath to get some money About 2 a.m., Sarju Singh awakened Babu Lal, who found Baijnath and Gorakh Nath sitting on Sarju Singh's cot. Sarju Singh told Babu Lal to go with Gorakh Nath and Baijnath and to bring what they made over to him to Sarju Singh. So Babu Lal went off with the other two to a field at the back of the. 'thana' and there after some search. Baijnath dug up the earth and took out a bundle of notes tied up in a piece of cloth. Gorakh Nath and Baijnath then sat down and began to divide: the notes, and Baijnath handed Rs., 1,000 to Gorakh Nath and offered the rest to Babu Lal, who at first refused, saying that they were stolen property, but Gorakh Nath said 'take the notes as he had spoken to Sarju Singh about, them.' Babu Lal, then took the notes - which he did not count and Baijnath and Gorakh Nath went off to the 'thana' while Babu Lal went to the go-down, the gate of which was opened by Ram Prasad. Sarju Singh was lying on a cot. He was said to have a boil on his testicles which prevented him from walking and Babu Lal made over the notes to Sarju Singh, who wanted Babu Lal to keep them; but when he refused, Ram Prasad was persuaded to do so. Ram Prasad palladar made a statement which supports Babu Lal to some extent, that is to say, he deposed to taking a message to Gorakh Nath and to hearing Sarju Singh tell Babu Lal to go with Gorakh Nath and Baijnath and to give what they made over to him. He also states that at about 2 a.m., Babu Lal came alone, and that after he had handed over the notes to Sarju Singh, the latter made Ram Prasad take them and keep them for two or three days, after which ha took them back again.
6. Now, it is quite clear that the statements of Babu Lai, and in a lesser degree that of Ram Prasad, are open to grave suspicion. Supposing the story of the conspiracy between Baijnath, Sajrju Singh and Gorakh Nath to be true, it is in the highest degree improbable that they should have taken two others as confederates without any object in doing so and without handing over any of the money to them. Such a course would only increase the number of conspirators and the danger of discovery. It was quite unnecessary for Babu Lal to go with the other two in order to bring notes to Sarju Singh. Either Gorakh Nath or Baijnath could have done this; and if Sarju Singh was afraid of keeping the notes and therefore handed them over for a few days to Ram Prasad, why should he arrange to have them handed over to himself at all. Therefore either the statements are wholly untrue, or both Babu Lal and Ram Prasad were members of the consiracy to a far greater extent than they have admitted and have concealed a part of the story. The evidence of an accomplice is always open to suspicion, and I agree with the learned Counsel for the appellants that the statements of these two witnesses must be regarded in this light, that is to say they are open to suspicion as the statements of accomplices, and they are also open to further suspicion on the ground that they undoubtedly do not state the whole truth, because they conceal the part that Babu Lal and Ram Prasad themselves had in the conspiracy.
7. The Sessions Judge has summed up the evidence against the three appellants separately on the last three pages of his judgment, or rather he has stated the facts proved by the prosecution-but he has not particularized the evidence by which these facts are said to have been proved. For some of hip facts he appears to have relied solely on the statements of Babu Lal and Ram Prasad. For the reasons I have given however these statements should only be accepted if there is independent testimony of them with affects the accused by connecting or tending to connect them with the crime. The independent evidence need not be direct evidence it - is sufficient if it is merely, circumstantial evidence, but there must be such evidence, and of course it must be reliable. It may be said that the statement of Babu Lal plus the statements of Ram Prasad is more valuable than the statement of either of them alone; but the evidence of both together is not sufficient for the conviction of any of the appellants. For these principles I rely on the judgment of Lord Reading in the case of King v. Baskerville (1916) 2 K.B. 658. It appears therefore that the case against each of the appellants stands as follows:
Baijnath has been proved to have been present when Sat Narain put away the notes in, the safe. He slept that night in the same room with Sat Narain, who had the two necessary keys, concealed on his person. When Sat Narain went out early next morning, he left Baijnath alone in the shop. Sometime before 3 p.m., the keys had disappeared from Sat Narain's 'janeo.' The notes were taken, from the safe-between 8 p.m., on the night of 8th January, and about the same hour on 9th Januray, when the safe was broken open The circumstances point to the conclusion that they were abstracted in a hurry, for the packet containing Rs. 1,800 which was compact, easy to remove and easy to conceal, was taken, whereas the rest of the cash, notes and valuables of the safe were left alone. Baijnath twice confessed to having taken the notes, before witnesses whose-testimony has been believed and is, to the best of my judgment, unimpeachable. His conduct, as described by Sat Narain, Sheobalak and Raja Ram, subsequent to the confessions was strongly suggestive of guilt. His defence was that he had a quarrel with Sat Narain, Raja Ram and others, because they wanted to cheat his master at Benares about the price of flax; and that Sheobalak accused him falsely because Sheohalak had joined Sat Narain and others in cheating Baijnath with the result that Baijnath had made a report about this at the 'thana' on the morning of 10th January. It is a fact that Baijnath did make a report at the thana about the assult, but from the narrative given above it is easy to see that this was merely a piece of 'peshbandi.' The evidence against Baijnath therefore appears to be quite sufficient to establish his guilt as regards the offence under Section 380 without the statement of Babu Lal and Ram Prasad.
8. The case against Gorakh Nath is that he was sent for, in the first place, by Sarju Singh, and as a result of this, he accosted Sheobalak and Raja Ram as they were taking Baijnath to the thana and asked to be allowed to take the latter away for half an hour. Instead of keeping Baijnath for half an hour, he kept him for the greater part of the night and, if Babu Lal is to be believed, he went with Baijnath and Babu Lal to the field from which Baijnath produced the notes and took away Rs. 1,000 in notes from Baijnath. For this part of the story, that is to say, his going to Sarju Singh both before he had taken away Baijnath and on the second occasion when he went with Baijnath to dig the notes out of the field, we have to rely on the statements of Babu Lal and Ram Prasad. If these are to be believed, they establish against him that he assisted Baijnath in disposing of property which he knew to be stolen. The question for me to decide in appeal is whether the evidence of Sheobalak and Raja Ram is sufficient corroboration of the statements of Babu Lal and Ram Prasad. Sheobalak and Raja Ram both say that when Gorakh Nath met them taking Baijnath to the thana, he begged them to hand over Baijnath to him for half an hour and promised to return Baijnath at the end of that time with the notes of Rs. 1,800 and that he swore a great and very offensive oath to this effect. Sheobalak has also stated, that, when he met Gorakh Nath on the first occasion of his going to the thana after this, Gorakh Nath came out and told him that the work was complete and asked him to wait for another half an hour, and that when Sheobalak again went to the thana an hour later, Gorakh Nath was no longer there. Finally, Sheobalak testified that on the following morning, when Gorakh Nath had returned from his tour of the village he showed great confusion in the presence of the Sub-Inspector when Sheobalak made his report. This evidence proves clearly that Gorakh Nath brought pressure to bear on Baijnath in private and that he had told Sheobalak in the presence of Raja Ram that he would restore Rs. 1,800. It may be questioned how Gorakh Nath intended to restore Rs. 1,800 if he had any dishonest intention, but the answer appears to be that he had no intention of restoring the money. This evidence, that is to say, the statements of Sheobalak and Raja Ram, is good evidence, and it proves circumstances that show Gorakh Nath's complicity with Baijnath in the disposal of the stolen property, and I am, therefore of opinion that the Judge was right in convicting Gorakh Nath.
9. As regards Sarju Singh however there is no corroborating evidence of any value. It has only been proved by reliable witnesses that he told Baijnath to restore the notes if he had taken them. He cannot be convicted solely on the direct evidence of Babu Lal and Ram Prasad. The final result then is that the appeals of Baijnath and Gorakh Nath are dismissed and that the appeal of Sarju Singh is allowed, his conviction and sentence are set aside, and he should be released at once.