GIRJANANDAN SINGH Vs. EMPEROR

JUDGEMENT

(1.) These four appeals are from a decision of the; Special Magistrate, Patna, and arise out of a dacoity which took place shortly before midnight on 4 November 1942 in the house of one Sadasiva Mahton of village Yahyachak within police station Asthawan. It so happened that the police had received prior information that this dacoity would be committed and so a large force of police led by a Deputy Superintendent of Police hid in ambush near the village. As soon as the noise and flashing of torches indicated that dacoity was being committed, the police party rushed up and attempted to surround the dacoits who were seen to be about 100 in number. One dacoit fired a gun at the police whereupon the police fired a volley in return. The dacoits then attempted to fly in all directions, and the police succeeded in arresting ten of them. Of these ten, four were found to have gun shot wounds. One died at once and the other, three died afterwards in hospital. During the course of the investigation test identifications were held of suspects, and several other persons, who had not been arrested, were identified by various witnesses with the result that eventually eleven persons were placed on trial before the learned Special Magistrate. He acquitted one of them, Aklu Dhanuk, and convicted the remaining ten under Section 395, Indian Penal Code, and sentenced them to undergo seven years rigorous imprisonment each.

(2.) The cases of all ten are now before us in appeal. Three of them, Peare Dhanuk, Ragho Mahton and Mahabir Mahton, have filed regular appeals. The remaining seven have filed an appeal from jail in which appeal Mahabir Mahton also joined. The cases of Peare Dhanuk, Ragho Mahton and Mahabir Mahton have been argued before us, and in the case of one of the appellants from jail namely, Mathura Singh, Mr. Guneshwar Prasad has argued the case as amieus curise.

(3.) The facts of the case have not been challenged by any one and are not in doubt. The only question for decision, therefore, is whether it has been shown in the case of each appellant that he was among the dacoits. I take first the case of Peare Dhanuk. Mr. Nawal Kishore Prasad has pointed out that the only evidence of his complicity is that of three constables, P. W. 24, Sheonath Singh, p. w. 25, Satya Narain Singh, and p. w. 26, Deokeshwar Singh, who picked out Peare at a test identification, and who also identified him in Court as one of the daeoits. There is also no doubt the fact that the name of one Peare does appear in the first information report which was recorded directly at the spot on the statement of the D.S.P. It appears that a dying declaration was taken then and there from one of the severely injured dacoits, and he mentioned the names of several persons who, he said, had joined in the dacoity with him. In this list he included one Peare Khalifa of Isachak. There is however no evidence at all to show that this is the same man as the appellant, Peare Dhanuk, There is no evidence that the appellant is a Khalifa, and his place of residence has been given by him as not Isachak but Sayeedpur, and no evidence was led to contradict that. The mention therefore of Peare Khalifa of Isachak in the first information, even if the statement is relevant as a dying declaration, should, in my opinion, be ignored.