1. This judgment will govern Criminal Appeals Nos. 659 and 660 of 1927.
2. There is not, in my opinion, any room for doubt that the three appellants have been properly convicted, and that the sentences are appropriate. There are, how-aver, one or two points that require mention. There was evidence that during the dacoity one of the dacoity addressed another as Kamal Singh, and the Sub-Inspector has given evidence in this case that he learns that one of the present appellants, Karey, was also known as Kamal Singh. On behalf of the Crown it is not pointed out to me that there is any other evidence of Karey being known as Kamal Singh, and the evidence of the Sub-Inspector is certainly inadmissible. It is merely hearsay evidence that Karey was known as Kamal Singh. I have, therefore, excluded that from consideration. It would have been different if one or more witnesses had been produced to say:--''I personally know this man and I know that he is known by both the names Karey or Kamal Singh, or he is known to me as Kamal Singh.' I have, therefore, excluded this Consideration from weight against Karey. There remains however, the evidence of Thakur Das Polaram and of his own conduct, and 1 have no doubt of the correctness of his conviction.
3. The other point that requires mention is that the accused have been charged and convicted under Section 397, Indian Penal Code. The learned Judge has not considered whether there is any reliable evidence to establish the fact that either of these men individually used a deadly weapon, or himself did any other of the acts which it would be necessary to prove in order to make Section 397 applicable to his case. That section is wholly different in scope from such sections as Sections 34 or 149. To render Section 397 applicable it must be established that 'the offender' did so and so. This error here, however, is immaterial, as the offences under Section 391, i. e., dacoity, has clearly been committed, and the sentence may extend to seven years under Section 395. I, therefore, alter the conviction to a conviction under Section 395, and maintain the sentence on each of the appellants.
4. With the exception of the alteration of the conviction the appeal is dismissed.