1969 PLP 477 (SCMR)

14 persons in all were sent up for trial before the Additional Sessions Judge. 7 persons were acquitted and the remaining 7 were convicted under section 396, P. P. C. and each of them was sentenced to transportation for life. Two appeals were preferred to the High Court of Judicature at Dacca; Cr. Appeal No. 214 of 1953 by four, and Cr. Appeal No. 2 28 of 1953 by three persons. By order dated the 30th November 1953, the learned Judges of the High Court dismissed both the appeals. Petition for special leave to appeal was presented which was granted to," determine the participation of the petitioners in the dacoity, particularly by Wahab Ali alias Gedu and Dudha Osta. The approach to the case by the High Court is indicated in, the following passage from the judgment: "It is true that apart from certain evidence which will be discussed in the individual cases there is no evidence of any observer to corroborate the approver's story that all the dacoits were seen right up to the houses of Montajuddin Howladar. That, however, cannot be expected. If there is evidence on which reliance can be placed to show that they assembled at the rendezvous and were seen at some stage of their journey to Chandpur, and if there is evidence that they were actually seen also at some stage of their journey back to the point of assembly carrying suspicious bundles, we think that is as much as reasonably can be expected." No fault can be found with this approach. The complicity of the approver by the recovery of a part of the stolen property at his instance coupled with his own statement is established. The. case of each individual accused would therefore be determined with reference to the statement of the approver and accepted if it is corroborated by other independent evidence.

1. Wahab Ali alias Gedu, was named by the approver as one of the dacoits. Two live cartridges were also said to have been discovered from his house. This was taken by the learned Judges of the High Court as a material piece of corroboration. The mere finding of two live cartridges from his house would not, in our opinion, be sufficient to connect him with the dacoity. This was, however, not the only evidence against Wahab as found by the learned Additional Sessions Judge. P. W. 21 speaks to have seen him conferring in the dry tank with the accused Sayed Ahmed and others. P. Ws. 18, 19 and 27 speak to have seen him leave home along with the accused Syed Ahmad and others and board a boat in the khal to the west of Syed Ahmed's house armed with a gun. P. Ws. 18, 19, 20 and 26 depose to have seen him return home in the company of the accused Syed Ahmed and others similarly armed and carrying certain bundles. P. W. 28 Khudabux Chowkidar states that on 7th, 8th and 9th of March he visited the accused Sayed Ahmed's brother Khurshed's house to see if Khurshed who was under police surveillance was at home, but he did not find him there. He further stated that the accused Gedu was also absent. None of these witnesses could be shown to have any cause of enmity with or bias against the accused or the approver. The evidence of the approver against Wahab was therefore amply corroborated by other circumstances referred to by the witnessed mentioned above and is sufficient to prove his participation in the dacoity.

2. Dudha Osta resides in the village in which the dacoity was committed. It is at a distance of about 40 miles from the place where Sekendar Bayati and his men used to live. He is mentioned by the approver and P. Ws. 23, 29, 41, 30 and

31. The evidence of P. Ws. 30 and 31 was discarded by the learned Sessions Judge. P. Ws. 23 and 29 say that they saw him in the meeting at Seken dar Bayati's house on the 6th Magh. P. W. 23 further stated that he had been seeing Dudha Osta visiting Sheku Bayati's house for about a month before that date. There is no explanation as, to how he i. e. Dudha Osta, came to know Sheku Bayati and his. people and why he used to visit them. P. W. 41 deposed that about a week before the dacoity, Dudha Osta made the casual remark that there might be dacoity in Muntajuddin Howladar's. house. This would indicate that a plan was in the making and he was aware of it. The learned Additional Sessions Judge thought that it was through the instrumentality of this man that the dacoity was planned and committed in the house of Muntazuddin Howla dar. This accused has no ostensible means of livelihood. The evidence mentioned above would make him equally liable for the dacoity. Delu alias Delawar Hossain.‑He is named by the approver and part of the proceeds of the dacoity was recovered from his house on 29th of January 1952, upon search by Sub‑Inspector Muhammad Yusafali in the presence of P. W. 2 Muhammad Hossain and Ahmed Ali P. W.

35. The description of the jewellery recovered from the house of Delu accused is contained in the khatas of Muntajuddin Howladar as this was pawned with him and there was no reason to suspect that the entries had been manufactured. The evidence of search was believed, supported as it was by disinterested persons, and the fact that the part of the property taken away by the dacoits was found in possession of the accused within a week of the commission of the crime lends unimpeachable corroboration of the approver's statement.

4. Syed Ahmed.‑He was shown to have taken part in the conference which preceded the dacoity and that he set out from the rendezvous with other men armed with deadly weapons, and after the dacoity was seen returning home in the same company carrying arms and also certain bundles. P. Ws 18, 19, 20, 21, 22, 26, 27 and 30 refer to the above facts. His complicity is also proved.

5. Rashid.‑He too was present at the conference which preceded the dacoity. There is evidence of P. Ws. 18 and 19 that he was seen leaving home about sun‑set on Monday the 7th Magh and board the boat that was waiting in the khal to the west of Syed's house armed with deadly weapons. P. Ws. 20 and 26 saw him return home on the morning of Thursday the 10th Magh carrying weapons and certain bundles. None of the witnesses was shown to have any enmity with the accused. On 18th February 1952, a search of his house yielded some ornaments which were identified by P. Ws. 9 and 12 as having been pawned by them with Muntajuddin's Howladar's father. The relevant entries were also available. His participation in the dacoity is proved.

6. Sekendar Bayati alias Sheku Bayati.‑Besides the approver there is credible evidence that he was seen in the meeting as his house two days before the commission of the dacoity. The more important evidence is that of Harish Munshi who had identified him on 22nd of February 1952, as the person who stood guard over him with ramdao. The learned Sessions Judge further found that the description given by Harish Munshi fitted the accused. His complicity may therefore be taken to have been established.

7. Mofazzal.‑He is named by the approver and P. Ws. 18, 19, 20, 21, 26, 27 and

31. He was also seen starting from his home; boarding the boat and returning armed with deadly weapons and carrying bundles. None of the witnesses were proved to have any reason to depose falsely against him. Both the trial Court and the learned Judges of the High Court have considered the evidence and believed it. It has not been shown that any legal principle was violated which would attract the jurisdiction of this Court. We have no reason to differ from the conclusions reached by the Courts below. The appeal is hereby dismissed. Appeal dismissed.