1. All the appellants have been convicted of dacoity and in addition to that the first five appellants have been convicted of an offence punishable under section 412, Penal Code. Their appeal is from the jail. The learned Judges presiding over the undefended Bench thought that this was a case in which the appellants should have some assistance, and at their request Mr. Mukherjee has been good enough to argue the appeal as an amicus curias on their behalf. I need hardly say that we are extremely grateful to him for so doing. The evidence is of the type which one usually finds in these easesection In the first place, there is a confession made by appellant 1. There is evidence of identification supported by a test identification; finally there is evidence that some of the stolen property was recovered from the houses of individual appellants.
2. The only evidence of any value against appellant 1 is this confession. Mr. Mukherjee has contended that this was inadmisssible in evidence, and ought not to have been allowed to go to the jury at all. After examining the circumstances in which it was made we have no hesitation in accepting that contention. There is a ring of truth about the explanation given by this appellant in the statement which he made under section 342. This appellant is a professional criminal of such notoriety that he is what is known as a C. T. Act Dagi. As such he has to pay periodical visits to the thana. He paid one of these visits the day before his confession was recorded. The police ar rested him. He was taken to Narayanganj where he was produced before the Magistrate. When questioned by the Magistrate he stated that he was not confessing with any hopes that he would be acquitted or obtain any lighter sentence and so forth. Of course, if such hopes had been given to him, he would certainly not admit it at that time; but he had to give some explanation of his desire to confess. The explanation was that he had committed a sin but he did not desire to add to his sin by committing the further sin of lying; it was therefore necessary for him to confess and tell the truth.
3. Now, this is not a crime posionelle, which sometimes leads to remorse and in connexion with which a genuine confession may very easily be made. I am bound to say that I am always rather sceptical when the result of an interview between a professional criminal and a police officer is a sudden desire to confess. I have no doubt whatever that the explanation of penitence and a sudden dislike to lying is not a true explanation. The inevitable result is that this confession must have been made at the instigation of the police. It should, therefore, not have been submitted to the jury at all.
4. There is also another practical difficulty with regard to it. It always seems to be assumed that a confession relates to the particular offence charged and that the persons named in it are the other accused. Here there is absolutely nothing to connect the names mentioned in the confession with the other accused persons. Neither their fathers' names nor their residences are given. There is nothing to connect the occurrence with the subject-matter of the charge except the reference to the village Baliapur. When a statement of this kind fails to blossom into an approver's de- position, it really becomes of very little use. It was at any rate essential that evidence should have been given that no other dacoity was committed about that time in this particular village. It might then have been inferred that this statement refers to the present occurrence.
5. The appellants Jamira and Abdul Hakim have been identified by inmates of the house. They were also picked out by these witnesses at a test identification. The learned Judge did his best to persuade the jury to reject this evidence. He certainly viewed the test identification with suspicion and he was very doubtful whether the witnesses would be in a position to identify any of the dacoits. It was purely for the jury to say whether they were satisfied with this evidence, and they convicted in spite of the very strong view taken by the learned Judge that they ought to reject it. It is impossible for us to interfere with this verdict.
6. The other appellants have been convicted solely upon evidence with regard to the finding of certain articles in their possession. The verdict which the jury have brought in shows that they were in some muddle. It is quite: meaningless to convict them both under section 395 and under section 412 with regard to this evidence. The learned Judge did not make it sufficiently clear that it was a matter of evidence whe-ther they would infer from the fact of possession that a particular appellant was one of the thievesection If the jury were prepared to draw such an inference there would, of course, be no difficulty in convicting under section 395, it having been proved that the actual property was stolen in the course of a dacoity. If they were not so satisfied, the position becomes very different because there was no evidence from which a jury could be asked to say that these individual appellants knew or had reason to believe that the stolen properties were trans, ferred by the commission of dacoity. If the charge under section 395 failed the only alternative would be one under section 411.
7. The evidence both with regard to the identity of these very common articles and with regard to the alleged exclusive possession of these individual appellants is so scanty and unsatisfactory that we do not think that we should be justified in directing a re-trial.
8. The result is that we uphold the convictions and sentences of the appellants Jamira and Abdul Hakim under section 395, Penal Code, and set aside the conviction and sentence under section 412, Penal Code. In the ease of the other four appellants their convictions and sentences are set aside and they will be set at liberty immediately.
9. I agree.