EMPEROR Vs. MATAPRASAD SHIVHARAK

JUDGEMENT

(1.) THESE are appeals by eight persons who were tried by the Additional Sessions Judge of Thana and a jury for offences of dacoity under Section 395, and in some cases under Section .398 of the Indian Penal Code. The jury found a unanimous verdict of guilty against all the accused and the Judge, although it is clear from his order that he did not agree with the verdict, did not think it necessary to refer the case to this Court under Section 307 of the Criminal Procedure Code, but accepted the verdict and imposed various sentences of imprisonment.

(2.) THE offences are alleged to have been committed on the night of September 4, 1941. THE prosecution story is that one Rambhilaksingh, who was afterwards made an approver, and accused Nos. 5 to 8 were at a place called Wangaon where they live and were joined by accused Nos. 1 to 4 who came from Bombay. THEy proceeded first of all to a village called Tanashi, which they reached about 8-30 p.m., and broke into the house of one Waman and carried off the sum of Rs. 12, after unsuccessfully attempting to extort more property. THEy then proceeded to another village Khetkhadi which they reached about midnight. THEre they broke into the house of one Kashinath and were trying to break open a box belonging to him, but as the people of the village collected they all went off without any booty. It is part of the prosecution case that six of the dacoits, i.e. accused Nos. 1 to 6, after returning to Wangaon, proceeded from there to the village of Sakhara, which is three miles from Wangaon on the side away from Tanashi, and spent the rest of the night in the house of one Karim. Waman informed the police patel on September 5 and the matter was reported to the police.

(3.) THE only corroborative evidence practically is the identification of the accused by some of the witnesses. Waman, whose house was broken into at Tanashi, in his evidence in Court identified Nos. 1, 3 and 5 and he said that No.3 had a pistol. But at the identification parade he was only able to identify No.1. Parashram is Waman's son. He says that Nos. 2 and 5 were among the dacoits and No.2 was the one with a pistol. But at the parade he was only able to identify accused No.5. Chimi, Waman's wife, deposes that Nos. 1 and 5 came into the part of the house where she was and No.6 came into another room. She does not explain how she was able to see him if he was in another room. At the parade she identified No.6 and no others and it seems that in the committal inquiry No.6 was the only one she said anything about. Javlya is a servant of Waman. According to him there were ten to fifteen dacoits outside the hedge and Nos. 1, 5, 6 and 7 were among those who came inside the house. At the parade, however, he identified only No.6 and four wrong persons altogether. Kashinath, whose house was broken into at Khetkhadi, identified accused No.3 as a man who fired a pistol at him. He appears to have picked out No.3 at the parade but his evidence shows that he is by no means certain that he was the man.