1. These are appeals by Mauji and five others from an order of the learned Sessions Judge of Jhansi sitting at Jalaun, convicting the six appellants of offences under Sections 397 and 397/75, Penal Code, and sentencing Abdul Salam and Janki as ring Leaders to eight years' rigorous imprisonment, Mauji was a previous convict to the same term and Nabi Bux, Nanhain and Chhotey Singh to seven years' rigorous imprisonment each. Abdul Salam and Nabi Bux were represented in this Court by Mr. Mohammad Husain and the others have appealed from jail. It should be mentioned at the outset that the convictions purporting to be under Section 397 are wrong for two reasons. In the first place Section 397 does not contain the definition of a substantive offence and no person can be charged or convicted under that section separately. Of course the section may be read with Section 395. In the second place Section 397 provides that:
If, at the time of committing robbory or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
2. But it does not provide that if a gun is used at a dacoity by a person or persons unknown all of the dacoits must be punished with at least seven years' imprisonment. In short, the section does not provide for joint liability as Section 149 does. These however are technical points, and do not affect the merits of the case.
3. The dacoity was committed on the night of 16th or 17th November 1933, at the house of Paras Ram Bania. Several persons were sleeping in it when there was a knock at the door and a call for Bandi Din, who was as a master of fact one of the persons in the house. Bandi Din opened the door, the dacoits ran in boat the inhabitants, duff up the floor, and stole a thousand rupees which they found in an earthenware pot. A number of villagers began to collect, and the dacoits after firing two or three shots left the village, and according to the statement of the approver distributed their booty the same night at the spot near the canal. In addition to cash they had stolen gold and silver ornaments from the persons of two women. About a fortnight later, as a result of information received, Mohan Lal Chamar was arrested in connection with the dacoity. He made a confession in which he named several others who were accordingly taken into custody and Mohan Lal Chamar was made an approver. His statement forms one of the principal parts of the evidence for the prosecution. It is not disputed at this stage that a dacoity took place, and although a great deal seems to have been made in the trial Court of theory, that the dacoits were not really criminals, but that they attacked the house on account of some quarrel between Bandi Din and Paras Ram or rather the wife of Paras Ram, this was not established, and is not now of any importance, if it ever was. The only question that has been argued before me is whether the offence has been brought home to all or any of the present appellants.
4. The approver Mohan Lal made a statement in which he described the dacoity in detail and named all of the appellants. One of these appellants, Chhotey Singh, made a confession which he afterwards retracted, saying that he had been tortured by the police. The learned Sessions Judge does not appear to have made much use of this confession of Chhotey Singh, but he has relied on the statement of the approver, and so it appears did the assessors to a large extent. Evidence was brought to corroborate the statement of the approver, and it was also proved that he had taken the Sub-Inspector together with several respectable gentlemen to the bed of a dry stream, near Jalaum from which he recovered a muzzle loading gun, a few caps and some gun-power, and a pair of anklets. He also took the same people to a sopt near the scene of the dacoity where he said the loot had been divided, and there were found certain small articles, including the pot in which a thousand rupees is said to have been put away. None of the evidence relating to the recovery of these articles was questioned, and there can be no doubt that it was useful to corroborate the general story told by the approver. Mr. Mohammad Husain has pointed out that according to the confession of Chhotey Singh each of the dacoits got Rs. 65 when the money was distributed, while Mohan Lal says that he got only Rs. 20; but the suggested explanation is that the approver is a Chamar, and that he may have been given less than others for this reason. The approver mentioned that others got Rs. 25 Rs. 50 or Rs. 60 and indeed, it is more than likely that the amount awarded was according to the status of each dacoit or the share he had taken in the dacoity. But, at any rate, the fact is one which does not justify me in discarding the statement of the approver after it has been accepted by the Judge and the assessors.
5. It has been pointed out that the statement of an approver is always to be suspected and that it needs corroboration, not only of a general kind, but of a kind that will implicate the person accused in the crime. The law on the subject has been clearly stated, and the proposition put forward by counsel has now been accepted, I think, by all the High Courts in India, although there is no statutory provision that a person is not to be convicted on the uncorroborated testimony of the approver. In the case of King v. Baskerville (1916) 2 K.B. 658 Lord Reading remarked:
There is no doubt that the uncorroborated evidence of an accomplice is admissible in law, but it has long been a rule of practice at Common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimoney of an accomplice or accomplices,
evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.
6. His Lordship further remarked (p. 667):
In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.
the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connexion with the crime.
7. I need not, however dilate further on this point because the prosecution evidence in this case to corroborate the approver was not only evidence to confirm his statement that the crime had been committed, but also to show that each of the present appellants had committed it. The argument advanced however is that the evidence produced for corroboration is in itself act to be believed. That evidence consists of the statements of witnesses who claim to have identified the appellants, and I shall have to take each case separately. (After examining the evidence, his Lordship proceeded). In view of the fact that the approver's evidence has been believed and that it has been corroborated by other evidence which cannot be discarded, involving Abdul Salam and Nabi Bux, I see no reason to interfere with the decision of the trial Court in the case of these two accused.
8. The other four appellants who are not represented were not so favourably regarded by the assessors, but I can dispose of their cases more summarily. Nanhain was identified by no less than four witnesses who were believed by the Judge, Chhotey Singh by two, Janki by two and Mauji by one. The only witness against Mauji was however Nathu Kurmi who did not actually see him at the dacoity. He says that he saw him at the same time as he saw Abdul Salam and three others that is to say when they were sitting at the well near the scene of the dacoity at about 9 p.m. In my opinion, this evidence is admissible on the principle laid down by Lord Reading. It is circumstantial evidence though not direct evidence that Mauji took part in the dacoity. It is therefore evidence that may be accepted, and it has been believed. The conviction of Mauji was therefore fully justified, unless it is to be held that, because lie is a previous convict, the police must be presumed to have implicated him falsely. This is a proposition which I cannot accept. It follows that the conviction of all the appellants ought to be upheld.
9. As regards the sentences I think that they call for a slight reduction. It was not a very serious dacoity, no great violence was used and it appears to me that the Sessions Judge may have been misled by the diea that Section 397, Penal Code, applied to the case, which it does not. While maintaining all the convictions on the facts therefore I allow the appeals to this extent that I modify the orders passed and direct that Mauji be convicted under Section 395 read with Section 75, Penal Code, and sentenced to six years' rigorous imprisonment; and that the other appellants be convicted under Section 395, Penal Code, and sentenced to five years' rigorous imprisonment each.