1. It appears that a dacoity was committed in the house of the plaintiffs in this case on the 27th December 1903. An enquiry was made and in the end the defendants, Manir-ud-din and Reaj-ud-din, were arrested and sent up for trial. Both of them made confessions. Reaj-ud-din, we understand, was discharged in the commitment Court, and Manir-ud-din was tendered a pardon and gave evidence in the Sessions Court. The persons who were accused in that case were acquitted. Thereafter the plaintiffs brought this suit for damages against these two defendants, alleging that they had collected the dacoits, advanced money to them, instigated them to plunder the plaintiffs' house and helped them with weapons. Five issues were fixed for trial in the case. The learned Subordinate Judge has disposed of the case on the 4th issue only leaving the remaining issues undecided. The 4th issue runs as follows: 'Did the defendants in collusion with each other cause the alleged dacoity to be committed in the house of the plaintiffs.' The learned Subordinate Judge has found that there is no trustworthy evidence to show that the defendants caused the dacoity to be committed. He apparently holds that it is not the plaintiffs' case that the defendants aided or abetted the dacoity, and that even if that had been the case still on the evidence it could not be found that the defendants had aided or abetted the dacoity. Considering, therefore, that the plaintiffs had failed to prove their case he dismissed the suit. The plaintiffs accordingly appeal.
2. It is argued on behalf of the plaintiffs that it has been their case from the beginning that the defendants instigated the dacoity and were not themselves participators in the actual commission of the crime. This appears to be so. There is nothing in the plaint to indicate that the defendants themselves joined in the commission of the dacoity. The plaintiff's case was that the defendants financed the dacoits and were privy to the dacoity. It remains to he seen, therefore, whether they have established this case in Court.
3. We may say at the outset that they have failed, in our opinion, to establish any case against the defendant Reaj-ud-din. The evidence upon which the plaintiffs, relied is to the effect that Reaj-ud-din knew nothing of the dacoity until the day after it was committed, and that all he did was to take charge of certain articles which had been taken in the dacoity and come into the possession of the other defendant. There is no reason at all disclosed in evidence for holding that Reaj-ud-din was privy to the dacoity, and under these circumstances the decision of the Subordinate Judge with respect to him was, in our opinion, perfectly right.
4. As regards Manir-ud-din the plaintiffs' principal reliance is placed upon his confession and upon the deposition which he gave subsequently in the Sessions Court. If these two statements are believed there can be no doubt that Manir-ud-din was fully privy to the dacoity and that he took such an active part in bringing it about as to be liable to the plaintiffs for their loss. According to Manir-ud-din's deposition he met one of the dacoits named Ram Lal a long time before the dacoity. Ram Lal was introduced to Manir-ud-din as being a trustworthy man from whom he, Manir-ud-din, might buy gold and silver ornaments, and there seems reason to suppose that the real meaning of the persons introducing Ram Lal to the defendant was that he was a man from whom stolen properties could be acquired. There were subsequent interviews between Ram Lal and others on the one side and Manir-ud-din on the other at which Manir-ud-din purchased ornaments from Ram Lal and his companions. Subsequently at the end of Aughran, that is, not long before the date of dacoity, Ram Lal told Manir-ud-din that he was going to Jalesswar to see about a dacoity. Jalesswar is the village where the plaintiffs live. Ram Lal and Manir-ud-din appear to have had a certain amount of conversation about this business, and in the end Manir-ud-din gave Ram Lal Rs. 12 to spend on food for his men. Later in the day Ram Lal and others again came to Manir-ud-din's house. They all went together to the house of one Saritulla and from there the dacoits went on to Jalesswar, leaving Manir-ud-din at Saritulla's house. They took with them a gun of Manir-ud-din and there is evidence that a gun was fired in the course of the dacoity at Jalesswar. When they returned they gave Manir-ud-din a number of ornaments for which he paid them Rs. 160, Among these ornaments were two gold bracelets. Manir-ud-din saw Reaj-ud-din next day, told him all that had happened, and gave him the ornaments to keep. It is said that Reaj-ud-din concealed the bracelets in a box in his house and the other ornaments else-where.
5. Now, if this deposition is believed there can, in our opinion, be no doubt about Manir-ud-din's liability. It is clear that he actively co-operated in the organisation of the dacoity and the plaintiffs are entitled to damages against him. The principle question, therefore, for decision is whether this statement can be trusted or not. The Sessions Judge did not think it safe to act upon it against the other accused persons, but we do not attach much importance to that fact as the conditions for receiving and acting on evidence in Civil Courts are very different to those governing the procedure of Criminal Courts. Especially is this the case with respect to the statements of accused persons and accomplices. The statement also has not been regarded as trustworthy by the Subordinate Judge in this case. In considering these statements the first thing that strikes us is that up to the present moment they have never been challenged by Manir-ud-din himself. He filed a defence which contains no reference at all to these statements and he did not venture into the witness-box to repudiate or explain them. His brother Reaj-ud-din has given evidence but on reading this evidence no reason whatever appears for supposing that either Reaj-ud-din or Manir-ud-din was ever subjected to any serious ill-treatment of any kind. The reason which Reaj-ud-din gives for making these confessions is that the Police advised them to confess and threatened them that unless they confessed they would be sentenced to imprisonment for 14 years. Now we will deal later on with the evidence as to the finding of certain property in the house of the defendants, but we may say here in anticipation that we have no doubt that some of the property taken in this dacoity was found about a week afterwards in the house of Reaj-ud-din. That being so it was then likely enough that if these men were prosecuted under, Section 412 they might be convicted and sentenced to a long term of imprisonment. It may very well be that in order to escape from this consequence they decided to make a clean breast in the matter and to turn King's evidence. But it does not follow from this fact that any statement they made is of no value as evidence against them of what actually happened. The deposition of Manir-ud-din is long and detailed. We see no intrinsic improbability in it. Certain discrepancies have been pointed, out to us, but we cannot say that they impress us as of great importance. It appears that in his first statement Manir-ud-din said that he had purchased the stolen ornaments for Rs. 6 whereas afterwards he said that the sum was Rs. 100. This, of course, is a discrepancy but it is not one that is incapable of explanation. It is possible that the Magistrate who recorded the first statement may not have heard accurately what Manir-ud-din said, or it may be that at first Manir-ud-din wished to minimize his guilt, but when he found that he had fully implicated himself he saw that there was nothing to be gained by withholding the whole truth. In any case we do not think that this discrepancy much weakens the value of the deposition. Again it is said that the articles, for which Manir-ud-din says that he gave Rs. 160, were not worth nearly as much, to judge from the list filed by the complainant in the dacoity case. But this point seems never to have been really examined, and on the materials given in the statement it is impossible to be convinced that the sum of Rs. 160 was necessarily too little for the ornaments. If, therefore, this statement stood by itself we think that even in that case it would be safe to rely upon it against Manir-ud-din, and we are unable to agree with the Subordinate Judge that it is unworthy of such reliance. It does not, however, stand by itself. It is corroborated very strongly by the discovery of stolen property in the house of his brother, who lived in the same house and in joint mess. It appears that on the 6th January the house was searched and two gold bracelets were discovered and identified by the plaintiffs as their own. The defendants were then arrested and about ten days later were again remanded to Police custody. Another search of the house was made on the 28rd January, and on that occasion the wife of one Kasi produced some other stolen property. We need not deal with the discovery of the property on the 23rd January because the discovery on the 6th January seems to us to be corroborative of the statement of Manir-ud-din quite sufficient to show that that statement was true. It is admitted that these gold bracelets were found. The suggestion is that they were put in Reaj-ud-din's box by the Police. It is not denied that they were identified by the plaintiffs as their own. It is admitted that they do not belong to Manir-ud-din or to Reaj-ud-din. It is admitted that the complainants and the defendants were not on ill terms and indeed were not known to each other. It has been said that the Police had what is called a grudge against Manir-ud-din because he had made a petition to the Magistrate objecting to the exhumation of his father's body by the Police. That petition has been put in and it is to the effect that Manir-ud-din's enemies had put in an anonymous petition accusing him of the murder of his father, in consequence of which the Sub-Inspector of Police had given out that he would cause the dead body of Manir--ud-din's father to be exhumed. There is nothing in this petition that suggests in any way that the Police had exceeded their duty. An accusation of murder had apparently been brought against Manir-ud-din and all that the Police had done was to announce that they would have the body exhumed. There is nothing to suggest that the Police wanted to exhume the body in order to annoy Manir-ud-din, or for any other purpose than to carry out their duties. If the Magistrate on this decided that exhumation was not necessary and forbade it, it appears to us that the Police, who were relieved of an unpleasant duty, had no reason at all to be annoyed with Manir-ud-din for obtaining that order. This suggestion, however, has now received considerable development. The story of the accusation of murder has been ignored and Reaj-ud-din in his evidence puts forward a, story that the Police threatened to exhume his father's body, simply in order to extort Rs. 500. This seems to us a somewhat improbable exaggeration of Police oppression. We should hesitate to believe such a statement on the bare word of the defendant himself, and we find that Manir-ud-din's pleader who filed the petition before the Magistrate says nothing whatever about this alleged extortion nor is it said that Manir-ud-din complained to him about it. We think, therefore, that the assertion that the Police had a special personal animus against these defendants has not been made out. But be that as it may, it is quite clear that the plaintiffs themselves had no animus of any kind.
6. Now if the theory of the defendants that these gold bracelets were placed in Reaj-ud-din's box by the Police is true, they must either have belonged to the plaintiffs or not. It is admitted, as we have said, that they did not belong to the defendant. If then they did not belong to the plaintiffs we have the fact that, immediately after they were discovered; the plaintiffs falsely identified them as their own among other ornaments, none of which did they claim. If they did belong to the plaintiffs we must suppose that they gave them to the Police to conceal in the house of these defendants, with whom it is admitted that they had no sort of enmity. Both these suppositions appear to us altogether improbable; and taking all the fact into consideration we have no doubt at all that these ornaments were ornaments of the plaintiffs, that they were part of the dacoited property and that they were discovered in the defendants' house. This is very strong corroboration of Manir-ud-din's confession and deposition, and we have no doubt that that confession and deposition do represent the substantial truth.
7. It has been argued that the statements are not admissible in evidence and Section 339, Cr. P.C., has been quoted. That section provides that when pardon has been tendered to any person, such as was tendered to Manir-ud-din in this case then, if he does not comply with the conditions on which the tender was made, he may be tried for the offence, and in that case the statement which he has made may be evidence against him. Clearly this section does not lay down that that statement cannot be admitted against the person making it in proceedings of quite a different nature.
8. It has also been argued that the discovery of the stolen property is no evidence against Manir-ud-din as the property was not found in his personal custody. Perhaps, standing entirely by itself, it might be of little value against him, but when we have the fact that the two defendants lived together in joint mess, and have also the statement of Manir-ud-din that he handed over these articles to Reaj-ud-din for safe custody, the discovery of the stolen property, no doubt, has great evidentiary value against Manir-ud-din.
9. Finally it is urged that as the defendants, if the plaintiffs' case is true, were guilty of a felony, the suit against them would not lie unless they had been first prosecuted and convicted. Certain authorities have been shown to us for holding that the law in England may be as stated, but no authority has been shown to us for supposing that this somewhat artificial rule holds good in this country, and it would, in our opinion, be difficult to reconcile such a rule with the clear provisions of Section 11 of the Code of Civil Procedure.
10. In conclusion it is urged that as Manir-ud-din is dead the suit does not lie against his heirs. We are inclined to think that this contention cannot arise here, as Manir-ud-din died after the decree under appeal had been passed. The point, however, has not been fully argued, and we do not think it necessary to express our final opinion upon it, but in the view we take of the whole case we think that the decision of the learned Subordinate Judge on the preliminary issue No. 4 is wrong, and that the plaintiffs were entitled to sue the defendants Manir-ud-din for damages in respect of this dacoity.
11. We, therefore, set aside the judgment and decree of the Subordinate Judge and remand the case to him under Section 562, C.P.C., for decision of the remaining issues.
12. The plaintiffs will be entitled to their costs in this Court from defendant No. 1 and they must pay the costs of defendant No. 2.