BALDEO BIN Vs. EMPEROR

JUDGEMENT

(1.) The appellant in this case has been convicted of the offence of dacoity and having bad a previous conviction he has been sentenced to rigorous imprisonment for a period of seven years. He was tried together with a co-accused. The jury found the appellant guilty by a majority of 3 to 2 and unanimously found the other accused not guilty.

(2.) Various points have been taken on behalf of the appellant. It is first of all stated that the learned Judge was in error in failing to draw the attention of the jury to certain portions of the evidence which tended to show that the number of persons present at the occurrence was less than what the Indian Penal Code requires to constitute an offence of dacoity. After perusing the evidence we have come to the conclusion that there is no justification for this argument. Nearly all the witnesses placed the number of the dacoits at some figure between 8 and 12. It is true that a female witness stated that she could not tell by guess how many were there. But even if she had spoken the truth it was hardly possible that there were less than five. We do not think that this point was improperly dealt with by the learned Judge.

(3.) Then it is said that the learned Judge failed to draw the attention of the jury to the weakness of the prosecution case as regards identification. The appellant was identified by two witnesses who professed to have recognized him at the dacoity. The Deputy Magistrate who superintended the test identification was called as a witness and he described the procedure which was followed at the identification parade. We consider that the learned Judge summarized the evidence as to the identification parade in a satisfactory manner and left to the jury to say whether they felt justified in giving any weight to this sort of evidence as to identification. Another part of the prosecution case consisted of a confession made by the appellant to the Deputy Magistrate and subsequently retracted. It was the case of the appellant that this confession was untrue and was induced by threat and persuasion on the part of the police. The learned Judge in discussing the confession drew the attention of the jury to the provisions of Section 24, Evidence Act, and observed that the appellant's confession would be irrelevant: If you believe that it was caused by inducement, threat or promise by the police as stated by Baldeo Bin, it is for you to consider whether or not the confession was caused by such inducement, threat or promise.