1. The 20 appellants were tried by the Additional Sessions Judge of Dacca with a jury upon a charge under Section 400, I.P.C., and upon the unanimous verdict of the jury were convicted and sentenced to various terms of imprisonment. The trial presents some unusual features. It began on 15th April 1925 and ended on 9th June. 1926. Over 300 witnesses were examined and the amount of judicial time actually devoted to the hearing was 154 days. The learned Judge's charge to the jury which occupied 8 days dealt very exhaustively with the law and with the facts in their relation to each particular accused and reflects great credit on the patience, industry and carefulness of the learned Judge.
2. At the hearing of the appeal, the appellants Suresh Chandra Banerji alias Fatik, Bhim Dhupi, Gunga Charan Dutt alias Haridas. Abala Ranjan Majumdar, Nalini Ranjan Majumdar and Bama Charan Chaudhuri alias Tuina were represented by Mr. Taluqdar, Nripendra Nath Ghose alias Natu by Mr. Bhattacharjee, while the remaining (13) accused have preferred appeals from jail.
3. The case for the prosecution rests very largely on the evidence of the approver Surendra Mohan Ghose. According to him the appellants with others formed a gang of dacoits under the leadership of Fatik, he himself being one of Fatik's lieutenants. The scene of their operations was the districts of Dacca, Faridpur and Tippera and more particularly Bikrampur within the Munshiganj Sub-Division and they were responsible for no fewer than 18 dacoities exclusive of attempts in the years 1922 and 1923. The head-quarters of the gang was at Panchgaon, Fatik's home, and the evidence shows that the appellants for the most part reside in this area. It was, therefore, not improbable, as the learned Judge puts it, that:
there should be a gang operating In this area which has been responsible for all these dacoities.
4. This was supported by the fact that similar weapons and the same password were used in their commission. Evidence was also led that the accused were seen to associate together regularly a truly remarkable circumstance when it is seen that they profess different faiths and occupy a different status in life. Such associations are shown to have been attended by an outbreak of crime, which coincided with the simultaneous disappearance of the accused from their homes.
5. These being the broad facts of the prosecution, it has now to be considered whether the learned Judge was right in his direction to the jury as to the value of the approver's evidence and as to that corroboration in relation to each accused upon which the statute insists. What the learned Judge says is this:
With regard to the evidence of an approver the legal position may be summed up in one sentence. It is not illegal to convict on the uncorroborated testimony of an accomplice, bat it is highly unsafe to do so unless it is corroborated, in material particulars. Under Section 183, Evidence Act, it is stated that' an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. In Section 114, Ill. (b) it is stated that 'a Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars'. You may take it then that there is nothing in the law to prevent you from convicting the accused in this case on the uncorroborated evidence of the approver Surendra Mohan Ghosh, but it would be exceedingly dangerous for you to do so. There must be corroboration of his evidence in material particulars by impartial and reliable evidence. Corroboration by an accomplice is worthless, as is corroboration by a witness whose competence or truthfulness is under suspicion. Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect them with the dacoities. In other words it must be evidence which implicates them, confirming in some material particular not only the evidence that dacoities have been committed but that the accused were concerned in their commission. If an approver has been corroborated on some points you are free to believe him on points on which he has not been corroborated provided you think it reasonable. It is not necessary that an approver shall be corroborated as regards every single statement which he makes.
6. We think that this is substantially a correct exposition of the law. It has, however, been contended by Mr. Taluqdar that the learned Judge should have placed the character and antecedents of the approver much more elaborately before the jury and that his omission to do so is a serious defect in the charge We find it difficult to accept this contention. The approver was before the jury for 24 days, and a mere perusal of his evidence is sufficient to show that he must have blackened himself in their eyes beyond redemption. Then on the question of the corroboration of the approver's evidence by independent testimony we cannot do better than transcribe as an example of the learned Judge's method of dealing with each individual accused that portion of the charge which relates to the case against Ananta Sarcar:
2 Ananta Sarcar - Ananta Sarcar is said to be the lieutenant of Fatik. He is first mentioned in connexion with the Kamarhowla dacoity. You will remember that he used to be the tabirkar of the master of the house. Vide evidence pf Nisi Karmokar. Then his name appears in connexion with the Bidhnai dacoity, and the search in his house by the police. Ha is implicated by the approver in the Meheran dacoity, and Kalachand Banerji speaks of the improvement in his fortunes after this dacoity. In Gaodia dacoity be is again implicated by the approver, this time as the informer of the dacoity. I remind you of the evidence of Baroda Kanta Pal, Kala Chand Gope, Tufani Kapali, and Srinath Gope. In this dacoity the approver gives Ananta a specific part, in that he was armed with a ballam and struck a man who cried out in consequence of which episode a neighbour asked whether or not these dacoits had any pity. Suren also implicates him in the Abdullapur attempt. He is named in the Mankobati dacoity, and the approver's evidence is supplemented by that of Kala Chand and Kasimali Haldar, P.Ws. 210 and 246. He is also named by Suren as having taken part in the Badhanagar dacoity and the evidence of Suren is supplemented by that of Jitendra Kath Roy P.W. 288 and Abdul Aziz P.W. 72. He is implicated by the approver in all the Kuiohamora attempts and in the last his evidence is supplemented by that of Kalachand Gope, and by Badidzzaman P.W. 76. Suren names him in the Banori dacoity, and you also have the evidence of Maijuddin Mullah 252, and Janaki Kapali 256; Suren names him in the Banori dacoity, and you also have the evidence of Sasadhar Biswaa 296, As regards Banori dacoity there is also the evidence of Ex. 198, and the evidence of Kala Chand 210. Suren names him in the Ganganagar dacoity and there is also the evidence of Brojendra Lal De 230. As regards Wari dacoity there is the evidence of Satinath Banerji 3, and Peari Kapali 245, Ananta was arrested by Eadali Chowkidar on 14th October 1923 and was produced before Sasadhar Biswas.
The same remarks us I have made in connexion with the witnesses of association before apply here as well as in all the individual cases. As regards Ananta, the evidence of the following association witnesses is put before you. Kala Chand 210, Eadali 37, Janaki Kabali 256; Dinesh Bannerji 262, Mon Mohan Kapali 244, Abbas Ali 258, Nisi Karmakar 251, Moijuddin 252, Gagan Karikar 248, Peari Kapali 245, Kasimali Haldar 246, Srinath Gope 253, Tufani Kapali 247, Manindra Nath Mukerji 264, Olimuddin Choukidar 243, Indra Mohan De 265, Mohini Mohan Banerjee 211, Hem Ghatak 291 and Kala Chand Banerjee 272, with reference to this last witness, I remind you of the evidence of P.W. 37 as regards enmity alleged between him and the accused Ananta.
7. The learned Judge has dealt: with the other accused in-a precisely similar manner and we do not think a clearer or fuller direction could have been given. The culpability or innocence of each individual was left entirely to the jury and we cannot say that the evidence upon which they found the accused guilty was inadequate. We have now to consider the various arguments advanced by Mr. Taluqdar. He says that Section 400 contemplates the existence of one gang to which the members permanently belong and are, associated for the purpose of habitually committing dacoity. Here the case for the prosecution is that there are three distinct gangs, and it is, therefore, urged that the trial has been vitiated by the acceptation of evidence relating to these three gangs, each of which should have been separately tried.
8. Now it is quite true to say as the learned Judge has done that when the section says 'whoever shall belong to a gang of persons,' the word 'belong' implies something more than a casual association. It involves the idea of continuity rather than of permanency and also of a connexion extending long enough to warrant the inference that the accused had identified himself with the gang which has for its object; the habitual commission of docoity
The essence of the section, to use the learned Judge's words,
is the agreement habitually to commit dacoity, not the actual commission or attempted commission of dacoities, The existence of such an agreement and the participation of any person in that agreement may be inferred from circumstances.
9. When the evidence is examined it will appear that it was only one gang which was charged and proved and that the approver and the appellant Natu joined it in time for the Meheran dacoity in December, 1922. Consequently there is no question of misreception of evidence or misjoinder of charges on the ground that the three gangs have been intermingled. In point of fact the first group of dacoities, namely Dhamaron and Malolediya affects none of the appellants except Natu with whom we shall deal later. There is, there fore no force, in this argument.
10. It is next contended that the learned Judge has misdirected the jury in regard to the letter Ex. 10, which purports to have been written by the approver to his wife and to show that he is not really a dacoit but a spy in police pay. What the learned Judge says about it is this:
At the close of the cross-examination of the approver he was handed this letter and was asked whether or not it had been written by him. After seeing the letter he answered it is not in my hand writing and not written by me. The letter was marked provisionally 'X'. Then the approver was asked to write fit the dictation of the then pleader for the defence who was then in conduct of the case. Accordingly he wrote at the dictation of the learned pleader. Two other letters purporting to have been written to the approver by his wife were shown to him. He denied that they were in the handwriting of his wife, that he had ever received them and stated that his wife always wrote to him over the signature 'Bini'. Nothing more was heard of the letter purporting to have been written by Suren to his wife until the argument of the learned pleader for the defence. He has now asked you to compare the admitted handwriting as shown in the dictation taken down, with that of the letter purporting to have been written by Suren, and also with the entries in the Khota book of Ram Malakar, Exs. 3 and 4 of Ex. 1 and from this comparison to find that the letter in question wa3 actually written by Suren from the gaol. In the first place I must caution you evidence of comparison of handwriting is often extremely dangerous. Of all methods of proving a document that of comparison of handwriting by an inexpert witness is the most unsatisfactory. Your own common sense will tell you this. If a man wishes to forge a document and make it appear to be in the handwriting of another, then he will, naturally follow as closely as possible the peculiar characteristics of the other's handwriting. He will also imitate any peculiarities of expression. If he knows that the other person is in the habit of using certain expressions or of making certain mistakes in spelling, he will introduce them into the forgery in order to provide an appearance of genuineness in the forgery. In fact the essence of a successful forgery is that it should resemble the original as closely as possible. The better the forgery the more difficult it is for any person who is not a handwriting expert to distinguish it from a genuine script. In the present case the alleged writer of the letter says it is a forgery, is not written by him. The defence have asked you to compare it with his admitted handwriting and find it genuine. It is a point which is for your decision, but your decision must be made bearing in mind the caution that I have given you.
11. We are of opinion that the warning given to the jury was quite proper. It was plainly a matter for the jury to decide whether the letter was genuine or not and if the defence maintained it was, nothing could have been simpler than for them to have called an expert to tell them what he thought. A grievance is sought to be made from the fact that the wife was not examined, but here again the defence might have summoned her if they wanted her.
12. Some criticizm is directed against the way in which the search of Fatik's house was conducted and it is urged that all the witnesses to the search were not called.
13. The search list Ex. 122 shows that a very large number of articles were found and it was important that they should be carefully recorded with all particulars. There is, therefore, nothing suspicious in the fact that this took more than one day to do.
14. As regards the second point, it appears that the search took place in the presence of three witnesses one of whom was examined. It was plainly unnecessary to call every witness. It would be for the jury to say if they were satisfied upon his evidence that there was no reason to suspect any irregularity, and whether they were or were not, there was no reason to burden the record unduly.
15. The further suggestion made by the learned vakil that some of the articles which were identified as stolen property at the trial were planted in Fatik's house rests on no evidence and is apparently unfounded. (The judgment then considered the evidence in the case of each accused and with certain modifications in sentences the appeals were dismissed).
16. I agree.