1. The appellant Sarat Chandra Dhupi, otherwise known as Das, was convicted by a Special Tribunal at Mymensingh for an offence Under Section 396, I. P. C, and was sentenced to ten years' rigorous imprisonment. He was originally charged along with several other persons who were subsequentlyacquitted by the tribunal on the ground that there was no satisfactory and independent evidence to corroborate that given by the approver in the case. The judgment which we have now to consider deals only with the case of Sarat Chandra Dhupi, the present appellant. The only question in this appeal is whether or not the evidence of the approver ought to be accepted. He narrated a circumstantial and detailed story of an occurrence which took place on the night of Sunday, 5th June 1932. Put shortly, the story was that he was fetched from the place where he lived by Sarat Chandra Dhupi and taken to a spot where other men to the number of twelve or fourteen were assembled together armed with guns and revolvers for the purpose of committing a dacoity and that later in the same evening the whole party proceeded to the village of Kuniati and there forcibly entered the bari of a man named Khoda Newaz. It appears that at the time when the dacoits approached the bari, there was a man named Harip Akanda who was the father of Khoda Newaz's sister-in-law standing in the outer part of the bari. He was seized and tied up and a number of the dacoits mounted guard over him, while the main body went inside the bari. The majority of the dacoits remained in the courtyard but a party of four or five of them entered the western bhiti hut from which the owner, the man Khoda Newaz, had already fled. He seems to have been a person of very small courage because he left his wife Durlabjan Bibi in the hut at the mercy of the dacoits. This Durlabjan Bibi subsequently gave evidence in the case. A wooden chest was broken open and various articles and a quantity of money were taken away to the value of about Rs. 1,300.
2. In the meantime a small boy who was a servant of Harip Akanda had fled into the outer bari. One of the dacoits seems to have noticed him moving away and called attention to him in offensive language. A shot was fired and the boy whose name is Rahim Bux thereupon fell wounded. He died whilst being taken to hospital next day. By the time the dacoits had finished their operations in the bari and were moving off villagers had begun to assemble and a pursuit was started. The dacoits fired shots from time to time in the direction of their pursuers until they reached a place called Rampur Bazar which is situated at the junction of two main roads a mile and a half distant from the actual scene of the dacoity. By that time the villagers had more or less surrounded the dacoits and accordingly the dacoits finding themselves in difficulties fired a volley into the crowd of villagers with the result that five of them were wounded and one of them a man called Rahimuddi was killed. The villagers thereupon retired and the dacoits made good their escape.
3. The approver was a man named Ambika Charan Bhattacharjee. In effect the evidence which he gave set forth the story of the occurrence as above narrated. He had already made some statements of a confessional nature which when examined appear to tally reasonably well with the evidence he subsequently gave before the Court. The learned Commissioners have discussed at very great length the question of the extent to which the evidence of the approver was corroborated by that given by the other witnesses. Mr. Roy Chowdhury who appears for the Crown has in the absence of anyone on behalf of the appellant very properly taken us through all the relevant parts of the evidence. He has pointed out to us such statements in the testimony of the various witnesses as he says tend to corroborate the story told by the approver. It seems to us abundantly clear that there was ample corroboration in several material particulars. The evidence given by the various witnesses shows quite conclusively that there was corroboration on three significant points: (1) the approver's statement that he was fetched from his own house on the night of the occurrence to take part in this dacoity; (2) the evidence to the effect that Sarat Chandra Dhupi, or Das as he is generally referred to, had purchased an axe which was subsequently found about halfway between the scene of the occurrence and Rampur Bazar. A witness was called who said that he had actually made the axe and sold it to Sarat Chandra. The evidence of the approver was that Sarat Chandra carried an axe and he was one of the party who entered the western bhiti and broke open the chest, and (3) the evidence of Jahuruddin who recognized Sarat Chandra Dhupi as being one of the party of dacoits at the time when they were retreating after the occurrence.
4. In my opinion, these three points are in themselves more than sufficient to connect this appellant with the crime with which he was charged ; but over and above all that it is to be noted that the defence set up by this man was one of alibi. At the time when he was arrested he stated that on the night of 5th June 1932, so far from being engaged in a criminal conspiracy and taking part in a dacoity he was peacefully occupied as a guest at a party in the house of a man named Miafar Sheik or Miafur Ali at a place called Balashimal and to give weight and corroboration to what he was saying he explained that he was at a party at which Baul songs were being sung. He also mentioned the names of certain of the other supposed guests at this party. A similar line of defence was set up at the stage of the trial when the accused was examined Under Section 364, Criminal P. C. In answer to one of the questions then put to him he said:
I told him (i.e., Sub-Inspector Jogesh Chandra Roy who arrested the accused, that on the night of the dacoity I sang Baul songs with Samir Shaikh, Adu Shaikh, Banu Shaikh, and others in the house of Miafar at Balasimal.
5. Evidence was given to show that that was untrue. Miafur himself gave evidence to the effect that there was no party in his house on the night in question and no one sang any song there and certainly the prisoner himself was never there on that evening. Whenever a defence of alibi is set up and that defence utterly breaks down it is a strong inference that if the prisoner was not in fact where he says he was then in all probability he was where the prosecution say he was. At any rate the line of defence adopted and his failure to substantiate it is an element which it is right to take into consideration in deciding whether or not the accused is guilty. We are clearly of opinion that there was in this particular case ample and considerable corroboration of the story told by the approver, but at the same time I should like to say that I think in this country the law with regard to corroboration of the testimony of approvers is as stated by Sir Arthur Page in 9 Aung Hla v. Emperor, 1931 Rang 235 at p. 430 where he said
the legislature in enacting these sections (that is to say the relevant sections of the Evidence Act) intended, and effected, subject to the limitations therein prescribed that the question whether and under what circumstances the testimony of approvers and the confessions of co-accused should be treated as evidence against the accused in any particular case should be determined according to the good sense and discretion of the tribunal by which the accused is tried.
6. Later on the learned Chief Justice of Burma said at p. 431:
We venture to think that many of the Indian decisions are based on fallacious reasoning and lay down the law in a sense that is inconsistent with the express provisions of the Act. The opinion that we have formed and expressed on this subject is in consonance with she observations of the Hon'ble Mr. Stephen that the effect of the provision (that is Section 114) is to make it perfectly clear that Courts of justice are to use their own common sense and experience in judging of the effect of particular acts, and that they are to be subject to no technical rules whatever on the subject.
7. In the particular case with which the learned Chief Justice was dealing none of the appellants whose appeals were being considered had been convicted on the evidence of an approver or the confession of a co-accused unsupported by independent and untainted corroboration. If however this is the correct view of the law it follows that it is not imperative that in every case there should be corroboration of the evidence of an approver though no doubt as a matter of precaution it is generally speaking desirable that there should be some sort of corroboration. The question does not arise in the present instance as we are fully satisfied that there was abundant corroboration of the evidence given by the approver and therefore the learned Commissioners were right in coming to the conclusion they did, that this man at any rate was one of those who took part in the dacoity.
8. We have not been addressed on the subject of the sentence, but I would point out that in the course of this dacoity at least two persons were murdered, and having regard to the provisions of Section 396, I. P. C, the sentence of ten years' rigorous imprisonment passed on the present appellant is in no way excessive. The appeal will therefore be dismissed.
9. I agree.
10. I agree.