ABDUL SALAM AND ORS Vs. EMPEROR

JUDGEMENT

(1.) These are appeals by Mauji and five others from an order of the learned Sessions Judge of Jhansi sitting at Jalaun, convicting the six appellants of offences under Sections 397 and 397/75, Penal Code, and sentencing Abdul Salam and Janki as ring Leaders to eight years rigorous imprisonment, Mauji was a previous convict to the same term and Nabi Bux, Nanhain and Chhotey Singh to seven years rigorous imprisonment each. Abdul Salam and Nabi Bux were represented in this Court by Mr. Mohammad Husain and the others have appealed from jail. It should be mentioned at the outset that the convictions purporting to be under Section 397 are wrong for two reasons. In the first place Section 397 does not contain the definition of a substantive offence and no person can be charged or convicted under that section separately. Of course the section may be read with Section 395. In the second place Section 397 provides that:

(2.) But it does not provide that if a gun is used at a dacoity by a person or persons unknown all of the dacoits must be punished with at least seven years imprisonment. In short, the section does not provide for joint liability as Section 149 does. These however are technical points, and do not affect the merits of the case.

(3.) The dacoity was committed on the night of 16th or 17th November 1933, at the house of Paras Ram Bania. Several persons were sleeping in it when there was a knock at the door and a call for Bandi Din, who was as a master of fact one of the persons in the house. Bandi Din opened the door, the dacoits ran in boat the inhabitants, duff up the floor, and stole a thousand rupees which they found in an earthenware pot. A number of villagers began to collect, and the dacoits after firing two or three shots left the village, and according to the statement of the approver distributed their booty the same night at the spot near the canal. In addition to cash they had stolen gold and silver ornaments from the persons of two women. About a fortnight later, as a result of information received, Mohan Lal Chamar was arrested in connection with the dacoity. He made a confession in which he named several others who were accordingly taken into custody and Mohan Lal Chamar was made an approver. His statement forms one of the principal parts of the evidence for the prosecution. It is not disputed at this stage that a dacoity took place, and although a great deal seems to have been made in the trial Court of theory, that the dacoits were not really criminals, but that they attacked the house on account of some quarrel between Bandi Din and Paras Ram or rather the wife of Paras Ram, this was not established, and is not now of any importance, if it ever was. The only question that has been argued before me is whether the offence has been brought home to all or any of the present appellants.