1. This is an appeal by eight accused persons from an order convicting them under Section 395, Penal Code, and sentencing them to transportion for life.
2. So far as the facts relating to the commission of the dacoity itself are concerned, there cannot be much doubt. On the night between 24th and 25th May 1933, a gang of about 15 dacoits raided the house of one Brij Lal at about 1 a.m. His servant Sita Ram was sleeping immediately outside the door, while another servant Sher Ali was sleeping in his cart a few paces away. Another villager He sho was passing that way about that time. The dacoits seized both Sita Ram and Kesho and tied them both by their feet to Sita Ram's charpoy and threatened to kill them if they made any outcry. Sher Ali, who' was sleeping in the cart on the other side of the road and was not noticed by the dacoits escaped to the village and raised the alarm. The dacoits in the meanwhile got into the house and seized the inmates and obtained the keys of the boxes from them, opened the door and removed some properties. All the three inmates were maltreated badly and were tortured in order to disclose where valuables were kept. In particular Brij Lal, the owner of the house, was maltreated very cruelly; rags were tied round his arm, kerosine oil was poured over them and they were set fire to. While the dacoits were engaged in opening the boxes and searching the house and recovered about Rs. 40, Brij Lal found an opportunity to run away with his arm is till burning. Alarm having been raised some villagers came to the scene, but they arrived a little late and the dacoits had by that time bolted away. A report was made at the police station, which was a few miles off, at 6-30 a.m., that very morning and the police Sub-Inspector arrived to make the investigation. However it was not till 9th June that accused Ranjit Kahar was arrested and then on 24th June Anwar Ali was arrested who made a confession disclosing the names of the dacoits which led to the arrest of the other dacoits. Ahmad Khan's house was searched immediately after the confession of Anwar Ali and a revolver and sotne cartridges were found in the house. Other accused like Abdul Majid, Jamil Ahmad, etc., were arrested later still. Anwar Ali's confession referred to two other dacoities in addition to the one in question. Anwar Ali was offered a pardon and has made a statement as an approver in this case.
3. Against the accused there was not only the confession of Anwar Ali and also a retracted confession of the accused Jamil Ahmad but also the evidence of several eye-witnesses who claimed to have identified the accused. The accused in their defence produced very little evidence except Ahmad Khan who produced a number of witnesses to say that he was not arrested in the manner alleged by the prosecution but was brought straight from, the jail to the kotwali.
4. The learned Sessions Judge in summing up the charge to the Jury at the very outset warned the Jury that whatever had been said in the evidence about other dacoities had no relevancy. He emphasized that in considering the charge against the accused they had to exclude from, their mind anything which had been said about other dacoities and that they must not take any notice of the evidence that two of the accused had been tried in some other case and convicted and brought to the Court from Jail and further that they should not, take into account the fact that Jamil Ahmad accused was appearing in Court in convict's clothes. He then, discussed the evidence of the approver Anwar Ali and his previous confession. He rightly pointed out that it was the foundation of the case which had led to the naming, of some of the other accused and warned the Jury to consider carefully what value they would place upon it and pointed out that if it stood by itself it would be open to criticism that as he had been offered a pardon he would be ready to say anything. He also warned them to consider whether there was any justification for an inference that such a statement had been made under the influence of any threat or promise and pointed out that it was for the Jury to consider whether the argument of the counsel for the accused was we founded. He made it perfectly clear that the Jury alone had to decide whether they accepted the statement as entirely or partly true and emphasized that if they did, they could base their verdict of guilty on that statement and a conviction based on the uncorroborated evidence of an accomplice would not be illegal. It is usually considered unsafe to convict on an approver's statement unless corroborated in material particulars and that such corroboration should be in respect of each individual accused. He asked the Jury to consider the case generally first and then to consider the case of each accused separately and find out whether the approver's statement had been corroborated in respect of each of them. He warned them to consider Anwar Ali's statement and see to what extent, if any, it was corroborated. There can therefore be no objection taken to the way in which the value of the statement of the approver was put to the Jury.
5. The learned Sessions Judge then dealt with the identification proceedings and, pointed out that the fact that an accused was picked out by a witness in Jail is not in itself evidence and that the evidence to be relied upon is the statement made by a witness in Court that a certain accused had been seen by him taking part in the dacoity and that identification in Jail, though in itself not evidence, can be used as corroboration of what a witness says in Court. He pointed out that if a witness fails to pick out a man in Jail, his statement made in Court would lack corroboration and emphasized the importance of such corroboration. He rightly impressed' upon the Jury the necessity for bearing in mind the two important questions : first whether the witnesses, we had never seen the dacoits before, had sufficient opportunity of seeing their faces during the dacoity to enable them to recognise them again and whether the identifications in Jail were a real test. He then referred to the evidence that although it was a dark night, there was a lantern and there was some light from the burning cloth, on Brij Lal's arm. Having then discussed the other circumstances he left: the matter entirely to the Jury to decide whether they would accept the correctness of the identification. He reminded the Jury that if the results of the identifications showed that any particular witness had identified a certain number of the accused and also made a proportionately large number of mistakes, the question would arise whether his identification is not fortuitous and therefore less reliable. He got the chart placed before the Jury which, showed how accused persons were identified in Jail, in the Magistrate's. Court and in the Sessions Court.
6. The learned Judge then dealt with the confession of Jamil and explained to the Jury that this could not be used against the other accused in the same way as evidence but that it might be taken into consideration; but as to Jamil himself if the Jury believed the statement they might convict him on it alone but they could not convict the other accused on the retracted statement alone. The learned Judge reminded the Jury that it was necessary that in the case of the other accused there must be other evidence which they were prepared to believe and that if there was such evidence then they could take the statement of Jamil into account and use it to fortify that evidence against the other accused. In this connection he pointed out that Jamil had retracted his statement and had stated in the Sessions Court that he had been tutored to make that statement. The Judge warned the Jury that in seeing whether this was correct they had to consider all the circumstances of the case including the fact that Jamil was arrested purely by chance and on suspicion and that he was sent to Jail and his statement was taken within two days of his arrest.
7. Having dealt with the case generally, the learned Judge took up the case of each of the accused separately and emphasised the evidence against each accused. It is noteworthy that in dealing with the case of the accused persons other than Jamil Ahmad, the learned Judge did not, refer to the retracted confession of Jamil Ahmad at all but when coming to the case against Jamil Ahmad he certainly said that he had given no defence and offered no explanation of his prosecution, but only denied having made the confession. The learned Judge wound up his charge by saying that if the Jury had any reasonable doubt the benefit of it should be given to the accused. In appeal it, is urged on behalf of the accused persons that there has been a misdirection to the Jury. It is said first that the learned Judge did not emphasize that there was a presumption of innocence in favour of the accused and that the burden of proof lay on the prosecution. We have no doubt that these facts must have been emphasized by the learned Counsel for the accused in the first instance and the whole trend of the charge shows that the learned Judge warned the Jury that the burden of proof lay on the prosecution and they had to be satisfied whether the case had been established by the prosecution. We are not satisfied that the omission to mention it in express terms in this case amounted to any misdirection.
8. It is next urged that the learned Judge did not scrutinise the evidence in detail and did not place before, the Jury various circumstances which might have told in favour of the accused. The learned advocate has drawn our attention to a few minor particulars. When it is borne in mind that the evidence adduced in this case covered more than 200 pages it cannot be expected that the learned Judge would refer to the entire evidence in detail when summing up the charge. Indeed such a course would confuse the Jury more than enlighten them. We are satisfied that the learned Judge has emphasized all the important and essential features of this case and drawn the : attention of the Jury to the important evidence and has not overlooked any piece of evidence which would have weighed heavily against the prosecution. Discrepancies as regards the exact date of the arrest or the exact date when Anwar Ali had made his confession were trivial because these dates were not definitely ascertained at the trial.
9. The learned advocate for the accused has very strongly criticised the charge on the supposed discrepancy between the first remark made by the Judge that Jamil Khan had retracted his confession and had stated that his previous statement had been a tutored one and the subsequent remark that he had denied his confession. Before any verdict of the Jury can be set aside on the ground of a mistake in the charge, we have to be satisfied that such verdict is, erroneous owing to a misdirection by the Judge. The error of the verdict must be the direct result of the misdirection : see Section 423(2). Similarly it is provided in Section 537(d) that no finding shall be reversed or altered on appeal or revision on account of any misdirection in any charge to a Jury unless such misdirection has in fact occasioned a failure of justice. As pointed out above, the learned Judge in dealing with the case generally had reminded the Jury that Jamil Khan had retracted his confession and had put forward his explanation that his previous confession was not voluntary but that he had been tutored to make it. He did not refer to this confession of Jamil Khan at all when dealing with the case of individual accused other than Jamil Khan. He apparently excluded it from consideration and certainly warned the Jury that they should not act upon it unless they believed other evidence in the case. It cannot therefore be said that the verdict of the Jury as regards the other accused was in any way influenced by any such misdirection. It. is only when dealing with the case of Jamil Khan that the Judge felt that he should refer to his previous confession and his retraction. The language used by him is to some extent unhappy but that is particularly due to the way in which the accused himself has retracted his previous confession. He first said, that a statement prepared by the police had been read out to him and he was compelled to make it and then said that if it had been his statement he would have stuck to it. Instead of saying that the accused Jamil Khan had been warned by the Magistrate that he should not make any statement while under any undue influence or any promise of reward or punishment and after stating that the Magistrate was satisfied that the statement was voluntary, Jamil Khan had made the statement at great length, giving a long and cogent story of the various dacoities, but that later on he had said that lie had been tutored to make the statement and he failed to produce any evidence whatsoever to prove that he was tutored, the Sessions Judge merely said that he 'denied' his previous confession. We do not think that this in any way prejudiced Jamil Khan and there is no reason to suspect that the Jury came to any erroneous verdict on account of this inaccuracy. We are certainly not satisfied that any failure of justice has been occasioned in consequence of this. In these circumstances the verdict must be accepted.
10. As regards the sentences we have no hesitation in saying that the sentences of transportation for life on all the accused are well merited and are by no means severe. Bearing in mind the brutality with which Brij Lal was tortured there can be no doubt that the accused are hardened criminals who would be prepared to go to any length and cause any amount of pain to inmates of the house if they expected that they would be able to extract admissions as to the place where the valuables were concealed. All the appellants, who were in this dacoity, are guilty of this cruelty. We have therefore no hesitation in saying that the the sentences of transportation for life should be upheld. The appeal is dismissed.