1. This is an appeal from the judgment and sentence of the learned Sessions Judge of Sylhet, at the Sessions held at Cachar, who differing from both the assessors found the six appellants guilty of the offence of dacoity under Section 395, Indian Penal Code, and sentenced them each to five years' rigorous imprisonment.
2. There is no doubt that a very serious dacoity took place on the night of the 2nd May 1911 in the house of Sonai Goalini of Ramnagar and a large quantity of valuable property belonging to herself and to her pujari, Balbhadra, was carried off.
3. Of the six appellants Hasan and Sajid have elected to escape from Jail without having their appeal heard. Their appeals must, therefore, be dismissed and the conviction and sentence passed upon them confirmed.
4. With regard to the appellant Basanta, who is a Manipuri, he made a confession before the Deputy Magistrate who speaks to its being entirely voluntary, and that confession, though now retracted, is fully corroborated by his positive identification by the Brahman Balbhadra and he was also described as a fair-complexioned Manipuri long before his arrest. We, therefore, think that there is no doubt as to the propriety of his conviction and his appeal is dismissed.
5. As regards the other three men, Ibrahim, Eusuf and Musan, there is some doubt. The evidence of the deceased approver Rahamat was put in under Section 33 of the Evidence Act and laid before the Assessors. But the Assessors with great force said that they could not give any opinion whatever as to the value of that evidence, inasmuch as there had been no cross examination of the witness and they had neither seen him nor heard him in the witness-box. Now, this is a position which can fairly be taken by a Jury as Judges of fact, and if the Jury took such a position, it is difficult to see how it could be escaped from. The learned Judge, of course, was not bound by the opinion of the Assessors, nor are we. But we cannot shut our eyes to the very cogent objection which the Assessors took to this evidence; and although it may be admissible technically under the terms of Section 33 - even this, in our opinion, seems doubtful-its evidentiary value is small indeed. The doubt which we express as to its admissibility is because Section 33 says that the adverse party in the first proceeding must have the right and opportunity to cross-examine. Now the practice in Sessions inquiries is not to cross-examine the prosecution witnesses unless, at the conclusion of the case when the charge is drawn up, the accused thinks it worth while to defend himself in the first Court, and, under the new provisions of the amended Code of Criminal Procedure, get the charge cancelled by cross-examining the witnesses and by entering into his defence. But if from the first he takes no such action, although it is clear he has the right to do so, it can hardly be said that he had the opportunity to cross-examine. We are borne out in this view by the fact that on the record it is stated that a lengthy examination-in-chief of the approver was read over to him and admitted to be correct and it does not appear that the accused persons were asked then and there to cross-examine if they wished to. We think in the case of approvers, having regard to the difficulty which has arisen in this case, that it would be a sound principle for the committing Court to clearly bring to the notice of the defence that it is their duty to cross-examine the approver, if they desire to do so, directly his evidence is given The fact that some of the witnesses were cross-examined would make the inference from the record itself and from the fact that the approver was not cross-examined even stronger. We can attach no importance to this evidence. That being so, we have to consider whether the independent evidence against these three men is sufficient for their conviction.
6. We take the case of Eusuf first. There appears to be nothing against him except that he was seen attending a meeting in the house of Musan on the day before the dacoity. Now this in itself would not be sufficient to implicate him in the crime, and when the complicity of Musan is doubtful, this evidence becomes practically worthless.
7. Then as regards Ibrahim, there are two matters against him, one that he exchanged certain old coins of the period between 1840 and 1862, containing the head of the late Queen Empress Victoria without the crown which are known as Bibimarka Rupees, and that Hassan Raja Mirasdur, to whom they were offered, stated that he would accept them at a discount of 6 per cent. if he would bring a hundred such rupees. He was unable to bring this number although we have it in evidence that 2,000 old coins had been stolen. But there is no description of these old coins in the record. Sonai says she began to collect them some 33 years ago. That would bring us back to 1878-79 and would not necessarily imply that they were coins of an earlier date than 1864; she says there were two bags of 2,000 rupees and this seems to have included modern coins as well as old coins. In the list given to the Police, no distinction was made, and the present statement that the old coins were kept in a butloi is thereby contradicted; and us there is no mention of the butloi in any of the three lists given to the Police on the day of occurrence on the 3rd May and on the 11th May, it would appear very doubtful whether these coins were kept in the butloi and, therefore, whether the butloi itself, which is an article in common use in all villages, was properly identified as the property of Sonai. This is a matter we shall consider when we are considering Musan's case.
8. The other important matter against Ibrahim is that he was seen in the company of Sajid on Monday, the date of occurrence. Now Sajid appears to be a very dangerous character. But being in his company is hardly sufficient evidence that Ibrahim committed the dacoity. Of course, this evidence would only be corroborative of the approver's evidence, and if we can place no reliance on that, this evidence is also valueless.
9. As regards Musan, the articles which he is said to have produced, to which we have referred, and were said to have been identified are a butloi and a thal said to have belonged to Balbhadra. These articles are of little value, and it is extraordinary, considering the pressure that was brought to bear on Musan and his alleged willingness to produce the stolen property which was in his possession, that he produced nothing more than these two worthless pieces of brass. If he was a party to the dacoity, he must have been in possession of a huge number of rupees and other articles. His nephew first of all produced the tagar and thal which were not identified by the complainant Sonai, and the evidence as to identification is rendered of very little value by the extraordinary procedure of the Sub-Inspector, who left the search witnesses at Musan's house and went to show the things to Sonai in the presence of no witnesses whatever. When he came back, he was very angry at being tricked. He brought pressure to bear on Musan to bring the butloi and thal and again went back to Sonai, and if his temper was not improved by that time, it seems to us extremely probable that he also brought pressure to bear on Sonai to say that the things were hers. There is nothing to show to the contrary, and as we have said, these articles had never been mentioned until they were found with Musan. We, therefore, think that it would be dangerous to uphold the convictions, in these three cases.
10. The appeals of Hassan, Sajid and Basanta are dismissed. The appeals of Ibrahim, Eusuf and Musan are allowed and they will be acquitted and released.