1. The seven appellants, Naubat Singh, Chob Singh, Ram Sarup, Shib Cliaran, Hansa, Kharga and Karan Singh, have been convicted by the learned Sessions Judge of Muttra, of an offence under Section 395. Penal Code, and sentenced to seven years' rigorous imprisonment each. The dacoity in question took place on the night between 23rd and 24th April 1934, at the house of Angan Lal in the village of Bajna in the Muttra District. As to the fact of dacoity there is no doubt whatever, and it is also clear that it was a dacoity of a very serious nature. Some 25 or 30 persons are said to have taken part in it; they used firearms and they looted the property of Angan and took it away. But it is also in evidence that they met with serious resistance. The village is a large one, and two police constables named Sadiq Ali and Babu Singh with two chowkidars were patrolling it. On hearing the noise pf the dacoity, they came to the spot and finding that looting was going on, they went up on to the roof of Durga, who has a shop at a short distance from Angan's house, and from there they observed the proceedings and also fired at the dacoits, one of whom was afterwards found to have been killed by gunshot wounds and another, as afterwards appeared, was seriously injured. Another of the dacoits was killed by one of the villagers with a spear. The dacoits had some 'mashals' with them and also electric torches, and as it was a moonlit night, it has not been argued that it would not have been possible for the witnesses for the prosecution to have identified the dacoits on account of the absence of any light.
2. Although the list of property said to have been stolen was handed in to the police, none of this property was recovered. One of the appellants however Naubat was arrested in Bulandshahr District, on the 26th April. It should be mentioned that the report of the dacoity had been made in the early morning of the 24th April, at the thana of Nohjhil in Muttra District, and it was only by accident that. Nauhait was discovered by the police to have been suffering from gunshot wounds in the District of Bulandshahr, a couple of days later. The Bulandshahr police do not appear to have had at that time any official news about this dacoity. The second officer of the Bulandshahr Kotwali heard from a resident that Naubat was lying in a dangerous condition with gunshot wounds received in a dacoity, and he naturally made inquiries and found Naubat lying on a cot in a precarious condition. He therefore took him before a 'Deputy Magistrate where Naubat's statement was recorded on the 26th April. Naubat was subsequently sent to hospital where he was kept for about a month.
3. Sixteen men were ultimately prosecuted in connexion with this dacoity, and seven of them have been convicted. The evidence on which they have been convicted consists of the confession of Naubat and a number of statements by witnesses, a large number of whom have identified the present appellants as having taken part in the dacoity. It was argued in the first place in this Court that the statement made by Naubat to the Magistrate on 26th April 1934 was not admissible in evidence. The Magistrate did not record the questions put by him to Naubat arid the answers made by Naubat in the manner required by Sections 164 and 364, Criminal P.C. and also by the Government orders on the subject. The recording Magistrate gave evidence in the course of which he stated that he did not think that it was necessary to note down the questions and answers, though he stated that he had put all the necessary questions and was satisfied that the statement was voluntary. In these circumstances, the Judge held that the statement was admissible in evidence as a confession, and in this he is supported by the decision of a Full Bench of this Court in the case of Muhammad Ali v. Emperor 1934 All. 81. It has been argued by Mr. Kapildeo Malaviya, however that the irregularity in the procedure could not be cured by the evidence of the Magistrate, because in this case Naubat had been prejudiced by the failure to record questions and answers as required by law. The argument is that although the general impression created by the statement as it has been recorded is to the effect that Naubat took part in the dacoity, yet it is capable of the interpretation that Naubat was merely watching the dacoity and was not one of the dacoits, and that this would have been brought out if the statement had been properly recorded. It has also been argued that this confession was not, made to a Magistrate 'in the course of an investigation' under Chap. 14, Criminal P.C. because although Naubat had been arrested by the Bulandshahr police, they had not taken action in the course of the investigation which had been instituted in Muttra. It was also argued that the confession, even if admissible against Nauhat, could not be used against any of his co-accused, especially as it had been retracted. I do not propose to discuss these questions at length because after hearing counsel on all the evidence for the prosecution, I am satisfied that the evidence is, sufficient without making any use of this statement. It is clear however that the statement was of great importance. It was made in circumstances that precluded all suspicion of undue influence, and it would have been unfortunate if it had been necessary to decide against admitting it merely on some technical ground or because the rule for recording confessions had not been strictly followed.
4. The other evidence which was brought forward to prove that the appellants took part in this dacoity was that of a large number of witnesses who were said to have been able to observe them at the time. No less than 23 such witnesses were produced, and it has been pointed out that the learned Sessions Judge although he has given a concise and clear abstract of the case against each of the individual accused has not made any comment, on the value of the evidence of any particular witness, but has merely stated in this part of the judgment the number of witnesses who were able to identify each particular accused. It was pointed out by Mr. Malaviya that the identification proceedings in jail were conducted on five different occasions, and on not one of these occasions were there more than three times as many undertrial prisoners as the accused who were put up for identification, while on one occasion, namely on 5th June 1934 when nine accused persons were put up for identification, there were only 24 other persons mixed with them. In the case of Alladia v. Emperor Criminal Appeal No. 148 of 1927, it was held by a Bench of this Court that the proportion of five other persons to one accused person for identification is the minimum desirable proportion for the purpose of satisfying a Court that the identification of the accused was not a question of accident. It is clear, therefore that in the present case these proceeding's would have been very much more satisfactory if the number of under-trials mixed with the accused at each of the identification parades had satisfied the standard described I by the Bench. It is not, however possible to discard these proceedings on that ground. It is only proper to hold that the evidence of identification should in the circumstances, be subjected to a more rigid scrutiny than if the proper standard had been main-rained. Of the 23 witnesses 11 made such a large number of mistakes that their evidence must be discarded altogether and of the other 12 the following Shib Lai, Lalman, Murari Lal Khubi, Jumna and Musammat Rupdei made as many mistakes as correct identifications. I think it is necessary therefore to regard these witnesses not as moderately successful witnesses whose statements can be used, though not absolutely relied upon, but as witnesses to whose evidence no serious weight can be attached. (After examining the evidence of the several witnesses, His Lordship held that the evidence of identifying witnesses should be believed and the judgment concluded). The result is that after giving the case my best consideration, I see no reason for allowing the appeal in the case of any of the appellants. The dacoity undoubtedly took place, and the prosecution as a whole was supported by a large mass of evidence. The learned Judge appears to have tried the case with every care, and he has acquitted those persons against whom he believed the evidence to be insufficient. I agree with him through out in his decision, and I dismiss all the appeals.