1. In this case, the nine appellants have been convicted under Sections 395 and 396 of the Indian Penal Code, and have been sentenced to ten years' transportation each. The Assessors agreed that Lallan and Sajani were guilty, but, while acquitting the remaining seven prisoners, they expressed the opinion that the deposition of the approver was true, but were doubtful as to whether he had given the names of the dacoits correctly. They also expressed an opinion that Lallan was caught red-handed, and that the confession which he made on the spot was made to a private person and was not obtained by force.
2. The learned Vakil, who appears for the appellants, has taken us at very great length through the evidence of upwards of fifty witnesses who were heard in the course of the case. His object in doing so is not clear because it is conceded by the learned Vakil that it has been established, without any shadow of doubt, that the occurrence took place, and that the only question is whether the evidence of the approver has been sufficiently corroborated to make it safe to uphold the conviction.
3. The facts that were accepted by the Judge and the Assessors are that, on the night of the 6th-7th of December last year, a large gang of dacoits made an attack on Bistoo's house at Mirgi. Bistoo and another-man were sleeping in a varandah. They were assaulted and the dacoits endeavoured with an axe to break into the house. Before they could effect their purpose, the neighbours came up and there was a fight and the dacoits were driven off; but they were not driven off until they had used a gun which was carried by one of them. Bistoo and several other persons, received gun-shot wounds, a man named Mahadeo being so severely injured that) he died of the effects a short time afterwards. One of the dacoits, a man named Lallan, fell into a hole near the bank of a khal as he was running away and was captured by one Ahmed and two other persons and brought back to Bistoo's godown. There he gave the names of certain other members of the party of the dacoits. While he was doing this, a chowkidar, was sent away to lay the first information. As a result of the information received from Lallan, efforts were made to arrest the persons whose names he had given; but, they were not to be found in their villages. Not till the 16th of December, was Biswanath arrested, then on the 186b, Gour Charan was brought by his father and Ganga Charan was caught, on the 29th Pocha MandaL was captured, on January 3rd Sajani, on January 25th, Reajuddi, on February 7th Bepin, on February 18th, Jagadish, who afterwards turned informer, and, in the early part of March, the last prisoner Nabadwip was taken into custody.
4. A great deal of the evidence which was read dealt with the events that took place when the attack was made in Bistoo's house, but no single one of the dacoits was identified during the attack because they had taken the precaution of arranging their pugris so as to conceal their faces and it was on the capture of Lallan that it was possible to ascertain the names. With regard to Lallan, it should be noticed that he appears to have disclosed no defence at all until April 20th, 1911, when before a first class Magistrate, he stated that he went to a fair and that he was seized by persons he did not know on his way back. He had already made to that same gentleman, on December 9th, 1910, a long detailed confession giving an account of the dacoity. I entirely disbelieve the story about his return from the mela. If there was any truth in it, it would have been stated at once, and Lallan would not have taken time from December to April to think out the story. I have no doubt it was an invention concocted as soon as he regretted having made the confession which he did as to his proceedings in the dacoity. This confession is ample evidence to corroborate the approver and his conviction must be affirmed.
5. Another of the appellants, Sajani, has made a confession which has been accepted by the Assessors and it is ample evidence to corroborate Jagadish's evidence against him. The law as to an accomplice's evidence is clearly and explicitly laid down in Section 133 of the Evidence Act, which provides that an accomplice shall be a competent witness against an accused person and that a conviction shall not be illegal merely because the evidence of the accomplice is uncorroborated. In the present case, therefore, to justify the appellants in asking us to set aside the conviction, they must show not only that there is no corroboration but that the Judge, taking all the evidence together, was wrong in acting on it. Now, the informer Jagadish was arrested on the 18th of February. He made his statement on the 20th. It is a very long and detailed statement and is one which it is extremely unlikely that he would be able to invent. When Jagadish went into the witness box, he narrated his story in a way which com-mended itself to those who heard him giving the evidence. He gave the names of no fewer than 19 persons, some Hindus and some Muhammadans. They were inhabitants of different villages and although Reajuddi, Pocha Mandal and Bepin suggest that there was enmity between themselves and Jagadish, there appears to be no evidence to support the suggestion nor does there appear to be any reason whatever for Jagadish's desiring to implicate any one of the particular persons whose names he had given. He described how the eight people, amongst whom were Sajani and Lallan, assembled in his bari and how they went on to Budhai Mandal's gulli, where 11 other persons were waiting, amongst whom were the other seven out of the nine appellants. He described their progress to Mirgi, mentioned their sitting down at a place for smoking and cutting a bamboo from a bamboo hedge, and the fact that they passed persons on the road with whom words were exchanged, and gave details of the attack on the house and his movements after the failure of the attack in detail, which bears on its face the impress of a true story. He said that he got a warning from Mofizuddin after the dacoity that Lallan had been captured and that he had given the names. Lallan's statement as to the persons, who took part in the dacoity, made in the godown gives the names of all the appellants excepting Pocha Namasudra and Ganga Charan,--but the formers name is given in his statement made to the Magistrate. It has been argued by learned Vakil for the appellants that Lallan did not give the names when he was brought back to Bistoo's godown, but that his statement is the result of a later consultation between the Police officers. The only ground on which the suggestion is founded is that there is a discrepancy between the daffadar and the the chowkidar as to the event of the evening. The chowkidar says that he was sent away to lay the first information while the witness Buzlur was writing down the information as to the names of the dacoits which he was obtaining from Lallan. The daffadar says that when he arrived, he saw Lallan in custody of the chowkidar in Bistoo's godown, and that he fat that time heard that a statement of Lallan's had been written down. Now, would that discrepancy justify the inference that the alleged statement by Lallan is a concoction? It is quite possible that the daffadar may have made a mistake as to the presence of the chowhidar when he arrived, but that the names were given directly after the dacoity by the captured dacoit is, I think, clear from the fact that when the chowkidar laid the first information, he mentioned the fact that the captured dacoit had given the names of those who had come to commit the dacoity. Now, this chowkidar clearly started very shortly after the occurrence, and it is quite impossible to suppose that at that time there was a conspiracy between the Inspectors, who had not yet arrived on the scene of the occurrence, to make out a false list and say that Lallan had given if; and, moreover, though Lallan denied, on April 20th, that he had made any statement to Buzlur Munshi, yet he had made on January 9th to a Magistrate a confession implicating, with one exception, the same people whose names he is said to have given to Buzlur. To my mind, the theory that the names might have been concocted by the Inspectors and made up afterwards entirely breaks down because from the first information which was laid long before the Inspectors came, it appears that Lallan did mention who the dacoits were. It has been contended that his statement is inadmissible On the ground that he was in the custody of the Police when it was made: but I do not think that was the case. He had been captured by private persons and was in their charge in Bistoo's godown. I am inclined to think the argument for the Crown that the chowkidar was not allowed to know what names were given, so that there should be no ground for saying Lallan was in his custody when he made his statement, is well founded. We have, therefore, the circumstance that directly after the occurrence, the names of the dacoits were given by a man who was engaged with the party, and that those names and the statement made by Lallan with respect to the occurrence agree with the evidence subsequently given by the informer. Sajani's statement, also made on the 5th of January while implicating himself, gives not only the names given by Lallan but those of Pocha Mandal and Ganga Charan as well; though there is authority for saying that confessions subsequently withdrawn are not evidence against any one except the persons who made them, yet they can be taken into consideration by the Court under Section 30 of the Evidence Act; and it is impossible to disregard the fact that, immediately after the occurrence, the names of all the appellants except Ganga Charan were given, and a story was told which agrees with the evidence of the accomplice, Then of the two confessions made before the Magistrate, that of Lallan implicates all the appellants except Ganga Charan, and that of Sajani all the appellants, and there is no evidence of any circumstance which would induce both Sajani and the informer to falsely accuse Ganga Charan. Besides these circumstances, there is evidence that 5 out of the 19 persons named namely, the appellants Lallan, Reajuddi and Sajani with two other persons who are not before the Court, were seen together by Subdar Hossain just before the dacoity; and another witness, Kadem Sikder, also saw 7 out of the 19, whose names have been given, sitting close together just before dark on the day of the dacoity and out of these seven, Reajuddi, Bepin, Lalan and Sajani are amongst the appellants on the record. No reason was alleged at first as to why either Lallan or Jagadish or Sajani should give the names of these particular individuals, for there was no evidence that there was any quarrel or ill-feeling between them. It is only late in the proceedings that there is a suggestion that they are named because of an ill-feeling against the Namasudras. There is a striking circumstance that Jagadish says that he got a letter from Mozuffudin stating that Lallan had been captured, and he had given the names of the dacoits. It was, therefore, known to one member of the gang at least that the names of the dacoits had been given. It is to be observed that it is not stated that the name of this or that particular person was given by Lallan, but merely that he gave the names of the persons who took part in the dacoity, and then there is a very significant fact that all the persons whose names were given at once disappeared from their houses. I think myself that all these circumstances sufficiently support the evidence which Jagadish has given. In all cases depending on the evidence of an informer, the degree of support that the. evidence requires must depend on the amount of credit in each particular case to be attached to the informer. I have pointed out circumstances in this case which lead me to think that the story that the informer is telling is a true one and that view is strengthened by the impression that was obviously made on the assessors by the informer when he told his story. Then, on the case generally, there has been no attempt to strengthen it by exaggeration or by pro-caring the false witnesses. It would have been quite easy, I have no doubt, to get persons to come and give evidence as to seeing the members of the gang together or it might have been possible to adduce false evidence of identification in the village at the time of the attack and to improperly strengthen the case by methods which are not unknown in this country. There seems to me in this case to have been a studious avoidance of anything which savours of bolstering up the case. I have no doubt that the evidence given is perfectly true, and that the appellants before the Court were a dangerous body of robbers.
6. With respect to the sentences, although the attack on the house failed and the dacoits were unable to appropriate any property, yet, nevertheless, the offence is a very serious one because fire arms were carried by one, at least, of the robbers, and those fire-arms there was no hesitation in using. Several persons have been wounded, more or less seriously, and one man has been murdered. Under these circumstances, I am quite unable to say that the Judge exercised his discretion wrongly in passing the sentences he did. The result is that the appeal is dismissed, and the convictions and sentences are affirmed.
7. I agree.