P L D 1967 Dacca 310 (PLP)

A. K. M. BAQUER, J.‑The seventeen appellants before us, namely, Omar Ali, Nazib Ali, Yad Ali, Darog Ali, Tara Mia, Abdur Razzak, Chand Mia, Monsur Ali, Manu alias Manchar Ali, Mahabbat Ali, Latu alias Abdul Latif, Lai Mia, Hura Gazi alias Asgar Ali, Belayet Ali, Pichan Ali, Gada alias Samuz Ali and Ayub Ali have been convicted under section 400 of the Pakistan Penal Code by Mr. M. Huq, Additional Sessions Judge, Sylhet and sentenced to various terms of imprisonment. Appellants 1,4 to 12, 15 and 17, namely, Omar Ali, Darog Ali Tara Mia, Abdur Razzak, Chand Mia, Monsur Ali, Manu alias Manchar Ali, Mahabbat Ali, Latu alias Abdul Latif and Lai Mia respectively to rigorous imprisonment for eight years each and appellants Nos. 2, 3, 13, 14 and 16, namely Nazib Ali, Yad Ali, Hura Gazi alias Asgar Ali, Belayet Ali and Gada alias Samuz Ali to rigorous imprisonment for ten years each. The trial was held with the aid of three Assessors who were unanimous with regard to the guilt of appellants Nos. 1 to 8 namely, Omar Ali, Nazib Ali, Yad Ali, Darog Ali, Tara Mia Abdur Razzak, Chand Mia and Monsur Ali respectively and appellant No. 15, Paichan Ali. As to the rest excepting in the case of appellants Nos. 10 and 14, namely, Mahabbat Ali and Belayet Ali respectively, the unanimous opinion was that of benefit of doubt. In the case of appellant No. 10 Mahabbat Ali‑one found him not guilty; the two others gave him benefit of doubt. In the case of appellant No. 14 Belayet Ali, one found him guilty and the other two Assessors gave him benefit of doubt. The question that confronts us is as to whether these men belonged to a gang of persons and the next question would be as to whether they were so associated together for the purpose of habitual commission of dacoity in terms of section 400 of the Pakistan Penal Code which is in the following terms:‑ " Whoever at any time after the passing of this Act shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with transpor tation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." The number of men required to make a gang has not been specified. It is an unknown quantity but it seems to be surely well above five in the light of section 391 of the Pakistan Penal Code. In our present case, the company is of 17 persons and the dacoities which they are alleged to have committed or participated in are as many as 150 in number. The evidence has been given in some cases of the actual participation of some of them in several dacoities although it has been argued that it was not strictly necessary to show their actual participation in any single dacoity and that the offence arose from the purpose itself, namely, that of association for habitual commission of dacoity. To show the connecting link among these men, the prosecu tion has brought evidence of their actual participation in several dacoities together; evidence of their movements together and in batches and in Bahars of boats, that is, flotillas; of their living rather loudly without any ostensible means of livelihood and without any fixed local habitation an land; of the coincidence of dacoities in the areas near which they halted their boat; the incidents of dacoity rising and falling with their being at large and being under arrest and in some cases recovery of booties of dacoities from their boats. In several cases First Information Reports were lodged although in several others there was no such icing of First Information Report. Evidence has been brought forward also to show that some of the appellants were actually convicted of the charge of dacoity or of receiving the booties of dacoities. In some instances the evidence as brought forward felt short of actual proof of dacoity, but nevertheless such evidence seemed to be indicative of the criminal combination essential to drive the charge home under the section. All the appellants with the exception of Hura Gazi belonged to the same caste, namely, that of Gains and are also inter‑related and thus bound by a natural common tie. It is alleged that they were also bound together by another far stronger common tie which is economic, namely, that of associating and working together as a body to make a living out of their co‑operative and joint enterprise in the field of dacoity. The appellants, do not have any fixed habitation on land and are a riverain group and the dacoities they are alleged to have committed are riverain and Bahar dacoities. The prosecution has brought forward evidence of these men carrying on the depredations from the period from 1954 to 1958 and of their activities spreading over a large area, namely certain parts of Sylhet and Mymensingh districts. They are alleged to have committed one dacoity in the Government Agricultural Power. Pump Station at village Naogaon of Astagram Police Station on the bank of Meghna river on 23‑1‑1958. They also committed dacoities in different boats in Barori Beal of Madan Police Station, Haliar taaor of Jemal ganj Police Station, Kadamsree Haor of Madan Police Station, Hultar Haor of Tarail Police Station, Betem Haor of Mohangan3 Policc Station, Tagor Haor and Satkuriar Haor of Dharmapasha Police Station, a Haor of Jamalganj Police Station near village Sangrampur, Goa Heel of Habiganj Police Station, Solabariarchar of Nikhil Police Station in Dhanai river within Barhatta Police Station, Dupi Beel and Kanjar Haor .within Dharmapasha Police Station and in the flat steamer named "Landoor" in the Surma river near Sukudpur village within Jamalganj Police Station at the junction of Beramonanar river within Itna Police Station as well as at the junction of Sachra Khal within Mohanganj Police Station. The latest of their dacoities took place in Harguar Haor of Dharmapasha Police Station within the Sunamganj sub‑Division of Sylhet district on the night of 2‑10‑1958. It is actually this dacoity that gave the gang away leading to its discovery and ultimate Nemesis. There have been cases of more than one dacoity even in course of the span of 2/3 hours and their victims were mostly businessmen returning on the river with their collections on the Hat days or marriage parties going on the river. Their womenfolk used to sell Churis for which purpose they would go in land and perhaps collect informations of the likely movements of people with money although the prosecution has not brought forward any direct evidence of that kind. , These men had no other profession and lived flourishingly on the slender resources from the sale of Churis by their womenfolk. They sometimes dressed in Khaki clothes so as to make an impression upon their prospective victims; they also carried arms of different kinds. The prosecution story is that appellants Darog Ali, Mansur Ali, Balayat Ali, Omar Ali and Nazib Ali along with the approver Moharam Ali formed the advance party of the gang to commit this Harguar Haor dacoity. They were armed with weapons Exhs. XXXVII to XLIII As well as torch lights. Moharam Ali had Khaki full pant and Khaki half shirt on his wearing. He also had muffler on his person. Appellant Nazib Ali was also in Khaki dress. The others followed them in a different boat. At about sunset of 2‑10‑58 they arrived at Harguar Haor. At that time P. W. 91 Arab Ali Talukdar, an elected member of the Dharmapasha Union Council was returning from Dharmapasba Bazar in a boat along with P. Ws. 257 and 267, namely, Abdul Malek and Ambar Ali respectively and others. They reached Harguar Haor during evening. P. W. 91 Arab Ali found his boat being plied by the party of P. W. 1 Moharam Ali, the approver and appellants Omar Ali, Darog Ali, Nazib Ali and others. This boat of P. W. 91 was stolen in the early part of September, 1958. On seeing the boat P. W. 91 Arab Ali queried as to where they got the boat. The appellant party instead of giving any reply made a counter query as to what P. W. 91 Arab Ali and his fellow passengers had in their boats. P. W. 91 and others of their boat got frightened and raised hue and cry. P. W. 42 Abul Fazal at that time officer‑in‑charge of Dharmapasha reached there in a boat on patrol duty along with P. W. 235 Kala Mia; they were armed with guns. They raised cry of assurance to those frightened by the dacoits and reached near their boat and that of the accused party with some speed. P. W. 91 Arab Ali and others of the Police party arrested appellants Omar Ali and Darog Ali; the remaining four members of the accused party jumped into the water. The police party pointed guns at them and arrested P. W. 1 Moharam Ali and appellant Nazib Ali from the water. The police also found different articles, namely, Ramdaos and other articles with them. In the meantime P. W. 92 Abbas Ali, P. W. 268 Mobarak Ali and P. W. 269 Hossain Ali who were returning from Darmapasha Bazar in another boat reached there. P. W. 269 Hossain Ali wrote the First Information Report Exh. 2; P. W. 91 signed this and lodged the same with P. W.

242. P. W. 242, the O/C, arrested Darog Ali and Omar Ali and also seized the articles preparing seizure list Exh. 7(1). After arrest, P. W. 1 Moharam Ali made a statement and took P. W. 242 and others to Naogaon Bandh Haor, a distance of five miles from Harguar Haor. The party reached there at about 5‑30 a.m. on 3‑10‑1958 and found a Bahar of seven boats. On seeing them the inmates of the boat wanted to run away with the boat but P. W. 242 threatened them with guns; whereupon they surrendered. Then P. W. 242 arrested appellants Mansur Ali, Pichan Ali, Tara Mia, Hur Gazi, Yad Ali and Samuz Ali; searched their boats and seized different articles including petromax lamp Exh. 1 and their boats and prepared the seizure lists Exhs. 7 (2) to 7(8). Thereafter they returned to the thana along with P. W. 1 Moharam Ali. P. W. 1 Moharam Ali thereafter took P. W. 242 to Sunamganj thana office, reaching there on 4‑10‑1958. There P. W. 242 took police force including P. W. 288 from Sunamganj thana office. Therefrom P. W. 1 Moharam Ali took the police party including P. W. 288 to Kurutola Ghat, which is situated within Sunamganj Police Station. There P. W.288 found appellants Chand Mia, Abdul Latif and Abdur Razzak in three different boats and after searching their boats arrested them and seized different articles and prepared lists Exhs. 7(11) to 7(13). On the same date they went to Sunamganj Launch Ghat and arrested appellants Belayat Ali, Mahabbat Ali and Manu alias Manahar Ali from different boats of theirs; searched their boats and seized different articles including the boats and prepared the seizure lists Exhs. 7 (14) to 7(16). Thereafter on 6‑10‑1958, P. W. 1 Moharam Ali was taken to a Magistrate at Sunamganj, namely, P. W. 280 for recording his confessional statement which was so recorded by the Magistrate Exh.

9. Thereafter P. W. 1 took P. W. 288 to Baliakandi Ghat on 8‑10‑1958. There P. W. 288 found appellant Lal Mia in his boat; arrested him and after searching of his boat seized different articles including the boat and prepared the seizure list Exh. 7 (17). P. Ws. 274, 280, .303, 304 and 309, namely, Messrs M. Hossain, W. A. Chowdhury, B. Barua, W. Zaman and Abdul Malek respectively who are all Magistrates held T.

1. Parades of suspects and suspected articles on different dates during the period from 19‑11‑58 to 25‑9‑

59. P. W. 282 also recorded further confessional statement Exh. 9 (1) of P. W. 1 Moharam Ali between 6‑5‑59 to 8‑5‑

59. Another Magistrate, since dead, recorded further confessional statement Exh. 9 (2) on 11‑5‑

59. Thereafter on 13‑10‑58 P. W. 287 A. S. I. Ali Ahmad attached to Sunamganj Police Station went to Jamlabaj village of that thana and arrested appellant Ayub Ali there; searched his house; seized articles and prepared the seizure list Exh. 7 (10). After seizure of suspected articles, the different Investigating officers sent informations to different Police Stations for ascer taining the ownership of the different seized articles and particulars of the dacoities in respect of the same. Thereafter the Investigating Officers examined the claimants of these properties and took steps for T. I. Parades and on that basis some T. I. Parades were actually held. Investigations were taken up by different Investigating Officers and final reports were submitted in many of these cases and charge‑sheets were submitted only in about a dozen cases. On receipt of respective copies of different F. I. Rs., the I. G. directed the Deputy Inspector‑General of Police, C. I. D., to take up investigation of the dacoity cases; whereupon C. I. D. Inspectors M. A. Hamid P. W. 294 and Abdul Hussain were deputed to investigate the cases mentioned in those F. I. Rs. Thereafter Inspector M. A, Hamid took up investigation and investigated some of the cases in respect of which the O/Cs. concerned submitted final reports. Out of these cases, three ended in conviction as under: In the Sessions Case No. 46 of 59 arising out of the Harguar Haor dacoity, appellants, Darog Ali, Umar Ali and Nezib Ali were convicted of the offence under section 395 of the Penal Code on 4‑6‑

59. On 16‑6‑59 appellant Manwar Ali alias Manu was convicted in the Sessions Case No. 47 of 59 arising out of the dacoity in the Flat steamer "Landoor" on the Surma river and that also under section 395 of the Penal Code. On 29‑6‑59 the appellants Darog Ali, Mansur Ali and Pichan Ali were convicted of an offence under section 411 of the Penal Code for dishonestly receiving articles that were robbed in the Kanjar Haor dacoity within the Police Station of Dharma pasha. On 11‑1‑60, Inspector Hamid sent a statement to O/C, Sunamganj Police Station for the offence under section 400 of the Penal Code and after examination of witnesses and completion of investigation, the Inspector submitted the charge‑sheet against the appellants on 23‑1‑

60. After preliminary enquiry by a competent Magistrate, the appellants were committed to the Court of Sessions to stand their trial for the offence under section 400 of the Penal Code. The Magistrate also granted pardon to P. W. 1 Moharam Ali by an order dated 25‑4‑

60. The appellants were thereafter put up for trial under section 400 of the Penal Code for belonging to a gang of dacoits associated for the purpose of habitually committing dacoity. The defence was a plea of not guilty and that of their not committing any offence. They denied having formed any gang or dacoits or that they lived in Bahar of boats. Their version was that some of them used to live in independent boats of theirs and that they also have enmity with P. W. 1 Moharam Ali and that they have all been falsely implicated by P. W. 1 out of that enmity in collusion with the police. So far as the Harguar Haor incident goes, their version was that it was not true that they were arrested on the Haor and that the appellants Omar Ali, Nazib Ali and Darog Ali were arrested in Dharmapasha Bazar and that they have been falsely implicated. Further case of appellant Hura Gazi was that he was arrested from his own house and that no article was seized from his possession. Appellant Nazib Ali's version was that he lived at the house of his father‑in‑law and that he came to bring his daughter from his father and was arrested in the Dharmapasha Bazar when he was engaged in repairing umbrella. The version of appellant Tara Mia is that he lived at Bhairab; came to the boat of his father‑in‑law Darog Ali to take his wife and was arrested in that boat. The case of appellant Chand Mia was that he was a T. B. patient and an old man and that after going to Sylhet for medi cine on leaving his boat at Sunamgunj, he returned to Sunamganj as the doctor demanded high fees and further that he bought articles worth Rs. 30.00 from Sunamganj town and took the same on boat to Kurutala Ghat and that he was arrested there after he went to bed. The prosecution examined 302 P. Ws., and tendered ten P. Ws. out of them 107 P. Ws. deposed as to 22 dacoities that according to the prosecution took place in different watery sheets of Mymensingh and Sylhet districts. 73 P. Ws. deposed as to association. Mr. Abdul Hamid, the learned counsel appearing for the appellants has taken us through the long judgment and the voluminous evidence of these 302 P. Ws. in meticulous detail. We allowed the learned counsel to read the whole evidence as the majority of the appellants remained undefended at the trial. The learned counsel's contention in substance is that these men are innocent and that if they associated together, is was not for the habitual commission of dacoity but because `.hey, belonged to the same Cotra (caste) of Gains and that the identification of these men after such a long period as habitually committing dacoity could not be possible and that the approver in this case, namely, Moharam Ali being himself not a very good character, the value of his evidence is nil and that such evidence cannot be improved by corroboration in material particulars. Mr. Hamid has also argued that the confessional statement of Moharam Ali made when he was in police custody could not be accepted; seizure list witnesses who are many come from far off places; no F. I. R. in many cases; some witnesses were in the nature of accomplices having kept silent for all these years; that in cross‑examination some witnesses had stated that the evidence of dacoity dropped with the advent of Martial Law and not because of arrest of these men. Mr. Hamid has cited the decisions in Bachchu v. Emperor (32 Cr. L J 162), Kedar Sunder and others v. The Emperor (16 C W N 69), Sarwan Singh Rattan Singh Harbans Singh Bhan Singh v. State of Punjab (58 Cr. L J 1014) and Nebi Dusadh v. The State (A I R 1956 Pat. 39), Kallu v. Emperor (18 Cr. L J 456), Kartara v. Emperor (A I R 1934 Lah. 535), Roshen Behari v. The State (58 Cr. L J 678), Empress v. Naba Kumar Patnaik and others (I C W N 146) and Ladu Molla v. Emperor (I L R 52 Cal. 595). Mr. Abdul Hakim, the learned Deputy Legal Remembrancer appearing for the state has cited the decisions in the Public Prosecutor v. Bonigiri Pottigadu and others (I L R 32 Mad. 179), Murli Brahman and others v. Emperor (26 Cr. L J 1412), The Queen v. Mooktaram Sikdar (23 W R 18) Bachchu v. Emperor and Ledu Molla v. Emperor. These last two decisions have been relied upon by both sides for different purposes. The learned Deputy Legal Remembrancer's contentions in substance are that the learned trial Judge has not relied on the confessional statement at all and that the prosecution has been able to prove its case independently of the confession made by the approver Moharam Ali. He has also urged that an approver is a competent witness and his evidence having been corroborated on material particulars by independent evidence that alone is sufficient for justifying the conviction; that the two ingredients of section 400 of the Penal Code, namely, that of belonging to a gang and such a gang being associated for the purpose of having habitual commission of dacoity have been established by direct evidence as well as by proved facts from which those can be reasonably inferred; that it is not necessary to bring evidence of the same degree of particularity in the present case under section 400 of the Penal Code as in the case of specific charge under section 395 of the Penal Code; that the evidence of participation in a given dacoity is evidence both of his associa tion with the gang and of the object in such association; that association is the gist of the offence and this could be proved by direct evidence or by facts from which it could be inferred. We may now examine the particulars of the dacoities which are as follows:‑ (1) Dacoity at Huliar Haor on 23‑9‑1955:‑ Witness in support of this dacoity being P. Ws. 47 to 51 and 53 and witnesses claiming recognition are P. Ws. 48, 49 and

50. P. Ws. 48 and 49 stated that they recognised approver P. W. 1 Moharam Ali; while P. W. 50 stated that he recognised appel lant Mansur Ali, Nazib Ali and even identified the offenders in the T. I. Parade held on 15‑8‑1959. (2) Dacoity at Tagor Haor under the Dharmapasha Police Station: This Haor is also known as Satkuriar Haor. According to the prosecution three dacoities took place in. this Haor in course of the same night on 6‑10‑1958‑one of these dacoities took place in the boat of P. W. 87. (2A). Dacoity in the boat of P. W. 91: Witnesses proving the dacoity are P. Ws. 89, 91, 92, 73, 96, 198 and

302. P. W. 91 stated that he recognised appellants Yad Ali and Hura Gazi and even identified them in the T. I. Parade. P. W. 280, the Magistrate also stated that this witness identified those accused persons in the T. I. Parade held by him on 27‑8‑1959. (2B). The other dacoity was in the boat of P. W. 93 and others: P. W. 93 stated that he recognised P. W. 1 Moharam Ali in that dacoity and identified P. W. 1 Moharam Ali in the T. I. Parade which was supported by P. W. 280, the Magistrate holding the T. 1: Parade on 27‑8‑1959. (3) Dacoity in flat steamer named "Landoor" in Surma river dated 15‑4‑1958. Witnesses proving this dacoity are P. Ws. 167 to 173 and

262. P. W. 170 a crew of the flat steamer, identified appellant Manwar Ali as taking part in the dacoity in the flat and identified the appellant in the T. I. Parade held by P. W. 303, the Magistrate on 29‑11‑1958. P. W. 167 also supported the evidence of P. W. 170 about the incident on the flat Landoor. He stated that on 15‑4‑1958 their flat was on the way to Narayanganj from Chhatak of Sylhet district and on that date they reached on the spot in the Surma river under Sukdebpur village and that they reached there at Magrib prayer time and halted there. He further stated that P. Ws. 168, 169, 170, 171 and 261 were there as crews of that flat. Their evidence was to the affect that at about 12 p. m. on the night of 15‑4‑1958 the dacoits came being armed with Ramdaos, rulers and sticks asserting that they were members of the police staff: P. W. 167 stated that his cabin was closed from inside and that the dacoits broke the glass panes of the window of the cabin, entered into the cabin through the window, throttled the witness, pressed on his chest and gave blows on his legs with rulers. He also stated that the dacoits took away money and other articles. (4) Dacoity at the Haor between the villages Haripur and Jamshedpur under Dharmapasha Police Station dated 17‑8‑1958: ‑ P. W s. 200 to 205 have spoken about this dacoity. (5) Dacoity at Dhani river on 22‑8‑1958:‑ P. Ws. 209, 213, 214, 215, 216, 217, 220 to 224, 236 and 237 are the relevant witnesses of this dacoity. P. Ws. 236 and 237 claimed to be students and stated that they were returning from Sidli Bazar in two boats on the aforesaid date and. when they reached the alleged place of dacoity at 9 p. m. of 22‑8‑1958, the dacoits took away money and other articles. P. W. 236 identified Nazib Ali and Tara Mia and stated that he recognised these appellants at the time of commission of the dacoity and identified them in the T. I. Parade. This witness has been supported by P. W. 304, the Magistrate holding the T. I. Parade on 25‑9‑1959. P. W. 237 Hassen Ali also identified the appellants Nazib Ali and Darog Ali and stated that he recognised them at the time of dacoity. He further stated that appellant Nazib Ali stood on his front with Darog Ali and that appellant Darog Ali took away his pen and money and he further stated that he identified the appellants in the T. I. Parade which has also been supported by P. W. 304, the Magistrate who held the T. I. Parade on 25‑9‑1959. (6) Dacoity at Dhupi Beal on the night of 31‑8‑1958: - Regarding this dacoity P. W. 225 stated that he recognised appellant Darog Ali and P. W. 1 Moharam Ali at the time of dacoity and identified them in the T. I. Parade. P. W. 303, the Magistrate who held the T. I Parade on 9‑11‑1958 also supported in the matter of these dacoities and different articles also have been proved as seized from different appellants; different P‑ Ws. have identified them as their properties. In several other dacoities there was no recognition but according to the prosecution different Alamats in respect of those were also recovered. In respect of the remaining 22 dacoities no Alamat was adduced; even none of the witnesses proving the dacoities claimed to have recognised any offender. Now turning to Moharam Ali, the approver, it appears that he was granted pardon on 25‑4‑1960 under section 337 of the Code of Criminal Procedure. He stated that after evening in one night of Bhadra about five years before the date of his deposition in Court they committed a dacoity in the boat of the sub‑Registrar in Kadamsree Haor and in that dacoity all the accused persons took part; that on committing that dacoity they got the gold ring Exh. (V) as well as money and clothes. P. W. 39 the Sub‑Registrar himself also has stated about this dacoity on his boat on the night of 18‑9‑1955 and he also identified appellants Yad Ali, Manwar Ali and the approver Moharam Ali as having taken part in the dacoity. Moharam Ali further stated that they committed dacoity in the boat of a Hindu businessman of Tarail at 7 to 7‑30 p.m. in the night of one Friday about 10 to 15 days after the aforesaid dacoity at Kadamsree Haor and in that dacoity they got clothes stationery articles, and cash money. P. Ws. 47, 48, 49 and 50 stated that they were businessmen hailing from Tarail and that during the middle part of Aswin, 1362 B. S. they were returning from Chandganger Hat in a boat and when they reached at Huliar Haor at about 8 p.m. the dacoits came there and robbed their money and articles. P. W. 48 identified Moharam Ali and appellant Ayub Ali, P. W. 49 also identified Moharam Ali, P. W. 50 identified Manchar Ali and Najib Ali. They also stated that they identified these particular persons in the T. I. Parade, which has been supported by the Magistrate. The approver's statement with regard to seven other dacoities have been sought to be supported by other P. Ws. namely, the dacoities at Tagor Haor, Surma river, Dhanai river, Dhupiar Beal, Harguar Haor and the Haor between Haripur and Jamshedpur. P. Ws. 91, 170, 236, 237, 225, 257, 288 and 267 have sought to corroborate the approver. In respect of the dacoity at Tagor Haor P. W. 91 recognised appellants Yad Ali and Hura Gazi. As to the dacoity on flat steamer Landoor in the Surma river, P. W. 170 recognised Manwar Ali. As to the dacoity at Dhanai river, P. W. 236 a young Matriculate identified appellants Nazib Ali and Tara Mia and stated that these two appellants took part in that dacoity. P. W. 237, a college student, identified appellants Nazib Ali and Darog Ali and he stated that he recognised them while they were committing the dacoity there. In the dacoity committed at Dhupiar Beel, P. W. 225 stated that he recognised Darog Ali in this dacoity. As to the dacoity at Harguar Haor, P. Ws. 91, 257, 258 and 267 proved the recognition of appellants Darog Ali, Nazib Ali and Omar Ali who according to these witnesses were arrested by P. W. 242, the O/C of Dharmapasha Police Station at the relevant time. P. W. 242 has corroborated the same. That Moharam Ali took part in the dacoities at Huliar Haor, Kadam sree Haor, Tagor Haor, Dhupiar Beel, Harguar Haor and the Haor between Haripur and Jamshedpur has been corroborated by P. Ws. 132, 39, 48, 49, 93, 200, 225, 257, 258, 267 and

242. They have stated that they found Moharam Ali having taken part in the respective dacoities in which the respective witnesses were victims. Moharam Ali stated that when they went to commit the dacoity in Kadamsree Haor, Barori Beel within Madan Police Station, they got a Hindu cloth dealers in a boat there and requested the boatman of that boat to supply fire to them and that the occupants said that there was no fire, P. Ws. 2, 3 and others were the occupiers of the boat in Barori Beel on the night of 5th of Ashar, 1361 B. S. There was a dacoity in their boat also P. W. 2 stated that the boat of the dacoits came from behind them and the inmates of that boat demanded fire from them and that they stated that they have no fire. P. Ws. 116 and 117 as also 118 stated that about three and half years ago in the month of Jaistha they, were returning from Ikramer Bdzar and when they reached Patharia Gua Beel at about mid‑night, they were robbed by the dacoits. They, however, gave chase resulting in the dacoits decamping by leaving some of the articles. P. W. 116 stated that he got his business of selling jackfruits on going to different Bazars and that the articles left by the dacoits were taken by him to the thana and he lodged the First Information Report. The prosecution has proved the F. I. R. 2(3). P. W. 1 Moharam Ali, the approver also corroborated this by stating that he himself as well as 17 accused persons went to the Patharia Gua Beel under Lakhai Police Station within the Habiganj Sub‑Division on Saturday in Jaistha and committed dacoity in the boat of the Muslim jackfruit dealer at about mid‑night. P. W. 1 further stated that after stopping the boat they beat the persons of the boat and took away money as well as other articles and further that 4 to 6 boats came be4ind the boat of the jackfruit dealer and attacked them and that thereafter P. W. 1 Moharam Ali and the other accused took their boats to the bank of the Beel where they left the boat with Ramdao and Khaki uniform but taking away the money. There is also some corroboration of the evidence of the approver with regard to the bases prior to the commission of different dacoities. According to the prosecution, the approver and the accused party used to keep their Bahars at a particular place and used to commit dacoity at a close distance therefrom Those were the bases, P. W. 1 stated that on keeping their Bahars in the beef near Barokuri village they committed the dacoity in the boat of P. W. 39 Shamsul Huda, the Sub‑Registrar to which we have already adverted to. P. W. 39 the Sub‑Registrar stated that he was returning from Adampur village in a boat along with others after executing a document on commission and that after they had reached at Kadamsree Haor at about 8 p.m., the dacoits came in a boat and committed dacoity in their boat; 'robbed him of his gold ring Exh. (V). The ring got a special mark "B". He stated that this letter "B" indicated the name of his younger brother which was Badrudozza and that the ring was a present by Badrudozza to him. The ring had also got manufacture mark "C. M. J." which meant Calcutta Muslim Jewellery. P. W. 46 stated that this firm is situated at Mymensingh town and belonged to them and they inscribed the letter "C. M. J." on the ornaments ‑ manufactured by them and that they also inscribe customers name if the customer so wanted. On perusal of the ring Exh. (V) the witness further stated that on order of Badrudozza they manufactured the ring and inscribed the letters. P. W. 13 the Sub‑Registrar further stated that after the dacoits decamped they went to Barokuri village and stated the particulars of dacoity to persons there. P. W. 1 stated that after evening of one Bhadra five years ago they committed the dacoity in the boat of the Sub‑Registrar at Kadamsree Haor and got the gold ring Exh. (V) and other articles and money and that the accused Monsur purchased this ring. He further stated that they committed this dacoity on keeping Bahar of their boats near Barokuri village. P. W. 42 Sona Mia who is the Bhagina of Omar Ali stated that he found the Bahar of the accused at Barokuri Haor at 9 to 10 p. m. during the later part of Bhadra about five years ago, P. W. 43, a member of the Union‑Council stated that he saw the accused in Kadamsree Haor as well as the contiguous Talarban Haor during Asar prayer time previous to the night in which P. W. 39 the Sub‑Registrar made a statement to him. P. W. 63 Hamendra Chandra Banik stated that he is a dealer of stationery shop articles and that dacoity was committed in his boat on the Surma river at a spot between Bamangaon and Ballampur at about 8 to 8‑30 p. m. on the night of 25th of Jaistha, 1363 B. S. He also stated that P. W. 64 Makhan was also in that boat. P. W. 64 also stated that there was a dacoity at that time in the ‑month of Jaistha, 1363 B. S. P. W. 1 also stated that they committed the dacoity in the boat of a Hindu shop keeper at Sunamganj on the river Surma. Of this he does not give any date but states that 7 or 8 months after the dacoity that was committed by him in Aswin five years ago, they committed this dacoity on the Surma river. He stated that they took away in that dacoity the gold ring Exh.‑V(1). P. W. 63 has stated that his ring Exh. V(1) was robbed away in this dacoity. This ring bears a mark "Hamendra" inscribed on it. P. W. 1 further stated that they committed this dacoity on keeping the Bahar at Birampur under Sunamganj Police Station P. W. 68 Harmuz Ali who belonged to the Gain community also stated that he saw the Bahar at Birampur on the date previous to the date in which P. W. 63 Hamendra made a statement to him as to the dacoity. P. W. 63 Hemendra stated that he made a statement P. W. 68 Harmuz Ali as well as to P. Ws. 69 and 70 in the next morning of the dacoity. P. W. 1 stated that they met P. W. 70 ‑ when they were returning to their camp at night. P. W. 70 has stated that he is a member of the Union Council and that he found Moharam Ali and the accused party getting down from the boats of their Bahar at Baishakhali river at about 10 p. m. during the later part of Jaistha about four and half years ago. P. W. 1 Moharam Ali further stated that they committed dacoity in the boat of a Muslim Jute businessman at about 8 to 9 p.m. in Bhadra on keeping their Bahar at a Haor near Barkapon village and that they took away the money, old clothes and oars of the boat in this dacoity. P. W. 83 Jang Bahadur has borne him out by stating that he had jute business about four years ago and that there was a dacoity in his boat at about 7 to 8 p.m. in the later part of Bhadra and that P. Ws. 84 and 85 also were in that boat at that time. P. Ws. 84 and 85 have corroborated this version. All of them have stated that the dacoits took away money and articles of P. W.

83. P. W. 83 further stated that on going home he gave the particulars of dacoity to P. W. 86 and P. W.

196. P. W. 86 stated that he is a member of Asma Union Council and is also an Ansar Commandar and that P. W. 83 and others went to his home at about 10 to 11 p. m. on the night of Saturday the 30th of Bhadra, 1363 B. S. and gave the particulars of the dacoity. This witness further stated that he found a Bahar at Barkapon river on the previous days for about a fortnight. P. W. 196 stated that at about 12 p. m., P. W. 83 and others went to his house in one night during the later part of Bhadra 1363 B. S. and stated that there was a dacoity in their boat at Shaldir Haor the same night. He also stated that five or seven days before that night he found the Bahar in Barkapon Haor. P. W. 1 also stated that after dacoity in Shaldir Haor they shifted their Bahar to a Beel near Sukhai village and committed two dacoities in Tagor Haor after evening of one Saturday which was a Hat day and that one of the dacoities was in the boat of a Muslim C. I. sheet dealer of Balijuri Chakia Chapa village. He also stated that they committed another dacoity in a boat of a Muslim at Deola village an hour thereafter and took away the shirt Exh. X and the towel Exh. XI and other articles and money including umbrella, shoes and old clothes. P. W. 87 Akmat Ali, a dealer in C. I. sheets who was robbed stated that he sells old C. I. sheets on going to different Bazars and that at about 7 or 7‑30 p. m. on the night of. Saturday the 15th or 20th of Aswin about four years ago there was a dacoity in their boat at Tagor Haor and that P. W. 88 was also there. P. W. 88 has corroborated this version and gave the positive date of dacoity as Saturday the 20tn of Aswin, 1363 B.S. P. W. 87 further stated that on returning home he stated the particulars of the dacoity to 'P. W. 89 and P. W. 89 has corroborated this. P. W. 89 stated that he was a physical Education teacher at the Government Aided Public High School of Badshaganj and was also an Ansar Commander and that he found P. W. 87 one night near the Ghat of a Khal to the west of Balijuri village about three to‑four years ago and P. W. 87 stated to him that his money and articles were robbed by the dacoits in that night and that on the previous date he found the Bahar of the accused in Sukhai river. P. W. 198 an Ex‑Zamindar hailing from Sukhai village has stated that he found their Bahar on a Hat‑ day of Madhyanagar Bazar in one Aswin during upon on the portion of their village Sukhai which went under water. P. W. 1 stated that after keeping the Bahar at Raila river they committed dacoity in the boat of a Hindu cloth dealer at about 8 to 9 p. m. in one night in Magh in the river Baramohana in which they beat the inmates of the boat and robbed their Sharis and other clothes. The version as to this dacoity has been corroborated by the evidence of P. Ws, 99 to 102 and

260. These witnesses stated that the dacoity was in their boat on the alleged river. P. W. 100 stated that he got a cloth shop at Ajmiriganj Bazar. P. W. 102 could not give the date of dacoity but P. Ws. 99 to 101 stated that the dacoity was on the night of 9th of Magh,,1363 B. S. at about 9 p. m. P. W. 104 also stated that P. W. 100 and others went to the shop of P. W. 100 at Ajmiriganj Bazar at about 11 p. m. and stated to them that there was a dacoity in their boat at 9 p. m. on that night on the junction of the Beramohana river. P. W. 97 claims to have lodged the F. I. R. with the O/C of Itna Police Station the F. I. R. marked Exh. 2(17). P. W. 107 the Medical Officer of Ajmiriganj Government Dispensary stated that he examined P. W. 97 at 8 a. m. on 24‑1‑57 and found one abrasion mark 5" long on lower part of sternum. The injury was 24 hours old. P. W. 260 stated that he found the Bahar of about 12 boats in a khal at the Raila Ghat at a distance of 5 to 6 miles from the spot of dacoity 3 to 4 days before that very dacoity. He clarified in the cross‑examination by stating that he saw the Bahar from a distance of only about 200 cubits and that some of their boats had Chhayees. P. W. 1 further stated that they next shifted their Bahar to Birampur at the mouth of Baishal river and successfully committed three dacoities in Karchar Haor after evening on one Saturday night in the month of Ashar or Sraban. According to him one of these dacoities was committed in the boat of 3 to 4 male persons having a seek (sic) female while the other two dacoities were committed in the boat of different persons returning from Bazar. P. W. 120 stated that in Sraban about 3 to 3 years ago he was coming to Sunamganj town in a boat with his Fufu and his cousin Tara Mia P. W. 130, besides the boatman and that there was a dacoity at Karchar Haor at 7 to 7‑30 p. m. P. W. 1.30 Tara Mia and the boatman P. W. 121 has corroborated this. P. W. 120 further stated that he stated the particulars of the dacoity to P. W. 1.23. P. W. 136 stated that he was returning from Sunamganj Bazar in a boat on 5th of Sraban about 3 years ago along with P. W. 142 when there was a dacoity in his boat as well. P. Ws. 137, 138 and 139 stated that they were in another boat. All of them stated that there were dacoities in the respective boats of theirs. P. W. 123 Badsha Mia stated that during the later part of Sraban 3 to 4 years ago he went to the home of P. W. 122 and there P. W. 120 stated the particulars of the dacoity to them. He further stated that he found the Bahar of the accused in the Ghat of P. W. 42 Sona Mia on the previous date but did not find the Bahar on the next day. P. W. 1 further stated that they shifted their Babar to Dighirpal Khal in Bajitpur Police Station and committed dacoity in Sholabariarchar in the boat of Muslims who were taking articles of marriage. P. Ws. 148, 149 and 150 stated that they were returning from Bajitpur Bazar on Thursday in Kartick about three years ago after purchasing articles in connection with marriage and that when they reached Sholabariarchar round about 8 p. m. there was a dacoity in their boat. P. W. 148 identified the quilt Exh. XIV, bedding Exh. XVII and new Tangail Shari Exh. VI(4) and stated that those were their articles and were robbed in that dacoity. . P. W: 149 had also identified the quilt and the bedding and corroborated the version as to robbery of those articles. P. W. 150 also gave details of the robbery and referred to the robbery of quilt, bedding and other articles, P. W. 140 stated that P. Ws. 149 and 150 told them in that night as to the dacoity. P. W. 153 stated that he found the Bahar on one Thursday in Kartick about three years ago in the Gurahutra river which was to the north of Dighirpal village about 100 cubits off and three miles away from Sholabariarchar. P. W. 155 stated that he found the Bahar of the accused on one Thursday in the early part of Kartick three years ago in Healdi Khal near Dighirpal river, P. W. 156 stated that he found a Bahar of the accused during Asar prayer time on one Thursday about three years ago on the spot near Dighirpal village the spot being to the south of Sholabariarchar about four miles off. This witnesses no doubt first gave the month as Magh but subsequently corrected himself by stating that it was Kartick. P. W. .254 also stated that he found the Bahar of the accused one day in Kartick about three years ago in the Khal near Dighirpal village. P. W. 1 stated that they committed dacoity in Dekar Haor on keeping their Bahar of boats on the water near Hassannagar village. P. Ws. 175, 176 and 177 the victims of this dacoity has corroborated P. W. 1 as to this dacoity in the month of Ashar about 2 years ago. P. W. 175 has given the details. He stated that after reaching Tagor Haor at dusk and when he had performed his Magrib prayer the dacoits pounced upon them. P. W. 179 stated that he found the Bahar of the accused in the river near Hassannagar village about 2 to 2 years ago. P. W. 183 specifically named the river as Kuriar Khal and stated that this Kuriar Khal was contiguous to Hassannagar village. He further stated that he found the Bahar of the accused in Jaistha or Ashar about 2 to 2 years ago on the Kuriar Khal. P. W. 1 also stated that on keeping their Bahar at the Beel of Ambari Khal they committed the dacoity in Dhanai river at 10 to 10‑30 p. m. 'in the boat of a Hindu shopkeeper and two Muslim students. P. Ws. 209,. 213 and others' who were the victims of this dacoity, claimed to be the businessmen and P. Ws. 236 and 237 claimed to be the students who were also the victims of that dacoity. P. W. 1 Moharam Ali further stated that they took away seven books Exh. XXVII, plastic bag Exh. XXVIII, old shirt Exh. X(1) and mosquito curtain Exh. XXIV. P. W. 236 has identified all these articles and stated that those were his articles that were robbed away by the dacoits on that night. In three of the books the name of P. W. 230 had been written, namely, Exhs. 5(2) and 5(3). One of the books bore the name of P. W‑237 Hasan Ali Exh. 5 (1). P. W. 236 stated that he borrowed this book from P. W 237 Hassan Ali. P. W. 223 stated that he found the Bahar of the accused in the Ghat near Ambari village on a date in the month of Bhadra about 2 years ago. P. W. 224 who also claims to be a student specifically stated that he found the boat of the accused in Ambari Ghat on the 5th of Bhadra, 1365 B S. P. W. 1 further stated that 7 or 8 days after the aforesaid dacoity of 5th of Bhadra, 1365 B. S. they shifted their Bahar to Ajitpur river and thereafter they committed the dacoity in Ghupi Beel after dusk on one Sunday in the same Bhadra. P. W. 225 stated that he and his brother P. W. 226 as well as P. W. 243 were the victims of that dacoity at Dhupiar Beel at about 7 p. m. on the night of 14th Bhadra. This version receives some corroboration from the F. I. R. filed by him, namely. Exh. 2(6) with the O/C of Dharmapasha. P. Ws. 226 and 243 also corroborated the version; P. W. 245 an elected member of Birhata Union Council stated that he found the Bahar of the accused at about 9 to 10 a.m. on Sunday the 14th of Bhadra, 1365 B.S. at Kangsha river near Ajitpur village and that this spot of Kangsha river was nearly 3 miles off Dhupiar Beel. P. W. 1 Moharam Ali further stated that thereafter they shifted their Bahar to Khurshimahal Beel within Mohanganj Police Station and committed the dacoity in a boat of a Muslim having two females in the boat. He further stated that the booties included Sikka Exh. XXXIII, Sari Exh. VI(5), a pair of gold ear‑ring Exh. XXXIV, silver chain Exh. XXXV, gold nose pin Exh. XXXVI and Murshidabadi silk Sari Exh. VI(6). P. W. 247 as well as his wife Mozlisan Nessa and Chachi Amiran Nessa and P. W. 249 stated that they were the victims of that dacoity at Kanjor Haor. P. W. 250 was the boat man of this boat, and he stated that he was the boat man of the boat in which this dacoity took place. P. W. 247 Abdul Hakim stated that this dacoity took place on the Sunday night that is the 4th of Aswin. P. Ws. 247, 248 identified the articles Exh. XXXIII to XXXVI, Exh. VI(5) and VI(6) and stated that those were their articles and were robbed away in that dacoity. P. W. 249 also identified the articles. But her eye sight being defective much reliance is not placed on her on the point of identification. P. W. 240 did not identify any article. P. W. 1 stated that they distributed all the articles which they got in that dacoity including the Exh. mentioned already and that the articles were distributed in the following way: P. W. 1 got the Sika Exh. XXXIII and the Saree Exh. VI(5), Darog Ali got a pair of gold ear‑ring Exh. XXXIV and the silver Chain Exh. XXXV. Appellant Mansur Ali got the gold nose pin Exh. XXXVI. Appellant Pichan Ali got Murshidabad silk Saree Exh. VI (6). P. W. 242 the Officer‑in‑Charge of Dharma pasha P. S. stated that on search he found these articles in the respective boats of those persons on 3‑10‑1958 which is evidenced by seizure list Exhs. 7(2) to 7(4) and 7(8) as prepared by P. W.

242. It is true that the evidence does not disclose that Hura Gazi and Ayub Ali are in any way related to the rest of the accused who are inter related but the‑ evidence is that these two lived with the other accused persons in the same Bahar. P. W. 1 specifically stated that the accused Hura Gazi is a friend of P. W. 1's Shala Akkas Ali and that the appellant Ayub Ali was a friend of P. W. 1's Samandi, viz., Jabbar and that these two also used to live in the boats forming a part of the Bahar of P. W. 1 and the accused persons. P. W. 1 further stated that he as well as appellants Omar Ali, Nazib Ali, Yad Ali and Mansur Ali came to Sylhet 7/8 years ago and used to live in boats within Baisal river since then and further thereafter the accused persons used to live in different boats and that they used to live in 14 boats in all, each boat accommodating 5/7 persons. He also stated that after their arrival at Baisal river they used to remain in boats while their women folk used to go in land to sell Churis and after this method of living continued for about one year the appellants Omar Ali, Darog Ali, Belait Ali and Mahabbat Ali proposed for formation of a gang of dacoits and that the remaining accused persons supported this proposal. Maharani Ali P. W. 1 next stated that thereafter he and the 17‑accused persons formed a gang of dacoits about 6 or 6 years ago, and he was made the ring leader and thereafter they started their depredations of dacoity. According to him they were responsible for committing about 150 dacoities; in the various water sheets of Mymensingh and Sylhet districts, besides the dacoity in the water pump Station of Naogaon a village of Mymensingh district. He further stated that 4/5 of them had khaki dress so that they might pose for police men and that they also had ramdaos Sulphis, lathis, Koch Shals, torch lights and petromax lamps. The above evidence of P. W. 1 has received substantial corroboration from the mouths of other witnesses as stated before. The defence suggestion on behalf of appellant Abdul Latif to the effect that his Dada and Ctiacba had Maharram Ali's father arrested and that Maharram Ali forced to implicate him out of enmity remained ' unsubstantiated. The defence of Nazib Ali to the effect that he lived at the house of his father‑in‑law, at ‑Durgapur and came to Dharmapasa Bazar where he was running umbrella shop when he was arrested also remained mere suggestion. The defence of Chand Mia to the effect that he was a T. B: patient and was living on the boat at Kurutala after returning from Sylhet where he came for medical treatment also remained unsubstantiated. P. Ws. 39, 48, 91, 93, 170, 236, 237 specifically stated that they saw 7 of the different accused persons actually taking part in dacoities. P. Ws. 91, 257, 258, 267 besides P. W. 242 police sub‑Inspector stated that appellants Darog Ali, Nazib Ali and Omar Ali were caught red‑handed during their committing dacoity at Hurgar Haor. P. Ws. 39, 48, 93, 220 and 225 stated that they even saw P. W. 1 actually taking part in different dacoities. P. Ws. deposing as to the Huliar Haor dacoity also proved that Moharam Ali the approver took part in that dacoity and one of those was arrested red handed. The evidences as above lead sufficient independent corrobor ation to what the approver stated in Court. Those also show the movements of the appellants in batches and of the evidence of dacoity along with their movements. Now coming to the decisions cited on both sides‑the decision of Bachchu v. Emperor (32 Cr. L J 162) shows that "The term "belongs" in section 400, Penal Code implies something more than the idea of casual association; it involves the notion of continuity and indicates a more or less intimate con nection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected has identified himself with a hand, the common purpose of which is the habitual commission of dacoity." So far as this part of the decision goes in the facts of our present case these men were associated and continued to be so associated over 7/8 years and at least during the period of the charge from 1954 to 1958 without break and as such it could not be said that the association was merely a casual one. The other portion of this decision, is to the effect that it is not necessary for a conviction under section 400 of the Pakistan Penal Code, that the person convicted must have taken part in any one of the dacoity and that evidence showing the actual participation by an accused in any given dacoity is evidence both of his association with the gang and of his object in such association and that, evidence which though not believed for the purpose of a convic tion under section 395 of the Pakistan Penal Code may yet be relied upon for the purpose of a conviction under section 400 of the Pakistan Penal Code. A conviction under section 400, Penal Code, cannot be considered bad in law merely because the evidence on the record would also have justified a conviction of specific offence under section 395 of the Pakistan Penal Code. This second part of this decision has been relied on by the learned Deputy Legal Remembrancer also which shows that for a conviction under section 400 it is not necessary that the person g convicted must have taken part in any dacoity and that the evidence of actual participation in any given dacoity is evidence both of his association with the gang and of his object in such association. Incidentally the decision in Public Prosecutor v. Bonigiri Pottigadu and others (I L R 32 Mad. 178) may to mentioned here, in which it was held that in a case under section 400 of the Indian Penal Code, the prosecution is bound to prove that the accused belonged to a gang, which was consciously associated for the purpose of habitually committing dacoity, and that the association' and the purpose of the association may be proved by direct evidence or by proof of facts from which they can be reasonably inferred and that evidence that the accused or groups of them had been concerned in a large number of dacoities in a comparatively short space of time may be sufficient evidence of such association. The other decision cited by the learned Deputy Legal Remembrancer viz., that of Murli Brahmen and others v. Emperor (26 Cr. L J 1412) may also be incidentally discussed here. It was held in this decision that in examining the question of the existence of a gang the Court need not look for the complicity of every one of the appellants in every one of the dacoities and that a conviction under section 400, Penal Code, could be had even where no actual commission of dacoity was made out. These two decisions as also the subsequent part of the decision in 32 Cr. L .J

163. Seem to afford good answer to the general arguments of the learned counsel for the appellants. . The next decision cited by the learned counsel is that of Kader Sunder and others v. The Emperor (15 C W N 69), Mr. Hamid has raised upon the following head note, "Corroboration of the testimony of an approver in a trial under section. 400 must connect the accused with the offence, viz., the association of a gang of persons, for the business of habitually committing dacoity. The general criminality of a tribe or caste cannot be imputed to individual members operating in gang where the prosecution is under section 400 and the fact that members of the tribe generally were alleged to have been implicated in several dacoity within a period of ten years proceeding the trial was not sufficient proof against the persons under trial when it appeared that the tribe contained within it thousands of human beings." The present is not a case of imputing criminality to an individual of a particular tribe. Appellant Hura Gazi is not a Gain. Here the criminality attributed is on the basis of individual activity. Furthermore it appears in the facts of this case that the conviction under section 400 failed in the High Court by reason of the fact that it had not been shown that the appellants in that case moved about in batches, had been arrested in batches and were absent from home in batches or even that the appellants had been concerned in a large number of dacoities. In our present case facts are very much different; ‑ the movements as disclosed were in batches; their arrests also were in batches in some cases, and the number of dacoities alleged to have been participated in is also large. The next decision relied upon by the learned counsel is that in Harbans Singh‑Bhan Singh and Sarwan Singh Rattan Singh v. State of Punjab, in which it was held inter alia that an approver is undoubtedly a competent witness under the Evidence Act. But the appreciation of his evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test, which is common to all witnesses. If this test is satisfied the second test, which still remains to be applied is that the approvers evidence must receive sufficient corroboration. There is nothing in our present case to show that the approver is unreliable as ‑a witness though he may have been a dacoit himself for several years. Moreover the very corrobo ration of the approver's testimony by several independent witness goes to show that as 'a witness he is not untruthful. Besides there seems to be some substance in the argument of the learned Deputy Legal Remembrancer that the evidence in this case is such that there can be conviction even without the testimony of the approver. The Next decision cited by the learned counsel's is that of Kallu v. Emperor (18 C L J 456) in which it was held that in dacoity cases evidence adduced as to the identification of dacoits ought not to be accepted too readily but, should be looked at with great caution. This was a case under section 395 of the Penal Code and there is no quarrel with the general principle, which we have sought to keep in our mind in the matter of identification. Next decision cited by the learned counsel is that of Kartara v. Emperor (A I R 1934 Lah. 525) the head note reads thus. "The recovery of ordinary clothes not bearing any special marks of identifications is no corroboration of approver's story regarding theft. But the recovery of an identifiable ornament is a sufficient corroboration. On the basis of the above the learned counsel wants to say that recovery of ordinary clothes will not be corroboration of approver's story but recovery of ornaments may be corroboration. The following lines of the decision are worth being quoted, the head‑note being misleading.. These articles (meaning Dopatta, silk Sharee stripe shirt etc.) were produced by him before the Sub‑Inspector. Subse quently on a search of his house a Dhoti (P‑17) was recovered. There‑ is no doubt that these articles are of a very common nature and in the case of all the articles but one, namely, the Patti, P‑3, no special marks of identification have been mentioned, except that persons who have been using those articles deposed that they were theirs and some tailors or cloth merchants have supported them. The Patti (P‑3) is of silver, and is an ornament worn on the feet, near the ankles. The gold‑smith who made this Patti states that he made it for the complainant and that it has a design like a web, which he recognises as his own. The learned counsel of Kartara argues that this property was claimed by his client as his own. I find that this argument was based on a remark to that effect made by the trial Court but it is shown by a reference to the statement made by Kartara before the Committing Magistrate and the subsequent statement made at his trial, that Kartara did not lay claim to the property. I see no reason, therefore to disbelieve the identification, of so many articles by the party of the prosecution but I attach particular importance to the identifica tion of the Patti, as a part of the stolen property. The passing of a pair of Patris to Kartara and Kartar Singh was mentioned by the approver and therefore the recovery of this article, among others from the possession of Kartara is a valuable corrobor ation of the testimony of the approver. I think this is sufficient to justify the conviction of Kartara . . . . Other relevant lines are though Kartar Singh had got a number of gold ornaments as well as a pair of silver Patties, according to the approver none of those articles have been traced. He may possibly have disposed of them or got rid of them by the time he was arrested, but the fact remains that the corroboration of the approver's story sought in his case rests on the recovery of three ordinary clothes, which do not appear to me to have any special marks capable of definite identification. I do not think therefore that it can be safe to convict him of this offence on that meagre corroboration. Reading through two parts together it will appear that there is no inherent distinction between conviction on the basis of identification of ornaments and clothes. The Patti in that case had special 'marks of identification and it was in that view that the learned Judge said that he gave more importance on the finding of the Patti. Next decision cited that also on the point of identification is that of Roshen Bahari v. The State ((1957) 58 Cr. L J 678) in which it was held that where in criminal trial for dacoity, the accused was put up for identification 8 days after his arrest, his identification in the parade becomes rather suspicious and if two of the witnesses who were supposed to have identified him in the parade could no longer do so in Court, he was entitled to the benefit of doubt. The facts of the case show that in the case of two of the appellants the only evidence consisted of their alleged identification by some of the witnesses at a parade held on the 17th of August by a Magistrate who was not available to appear as a witness at the time of the trial as he had gone abroad to Holland on some courses of study. The evidence of the identification by the witnesses in the parade thus consisted entirely of the record of the proceedings prepared by the Magistrate which was proved by the former's reader who knew his handwriting and the question was whether this record of the proceedings was admissible in evidence as a proof of its contents without the evidence of the Magistrate. The fact that the accused in that case was put up for identification eight days after his arrest, made the identification suspicious not because the identification was eight days after but as it appears from the facts of this case that two of the witnesses who were supposed to have identified him could no longer do so in Court. The learned counsel has not been able to show any such situation in the present case where the identifications were made at the parade but not in Court. The next decision cited also a decision on the point of identification is that of Nebi Dusadh v. The State ((1956) 57 Cr. L J 95) in which it was held inter alia that no hard and fast rule can be laid down that in every case of dacoity, if there is identification by only one witness, that identification should never be accepted. Every instance of identification in circumstances which usually accompany a case of dacoity has to be judged on the facts of that particular case presented by the prosecution and if after a careful scrutiny, there is the slightest hesitation in the mind of the Court that there was possibility of a mistaken identification or that the statement of the sole witness was influenced by some other cause, the accused, in view of the matter, is entitled, as a matter of course, to the benefit of a reasonable doubt. In our approach of the matter before us we have always kept this principle in our minds. Mr. Abdul Hamid, the learned counsel has next cited the decision of Empress v. Naba Kumar Patnaik (I C W N 144) in which it was held that having regard to the character of the offence under section 400, I. P. C., previous commissions of dacoity are relevant under section 14 of the Evidence Act. Convictions previous to the time specified in the charge or to the framing of the charge are relevant under Explanation 2 of section 14, but convictions subsequent to the time specified in the charge and to the framing of the charge are not so admissible. The learned counsel has also cited the decision of Ledu Molla v. Emperor (I L R 52 Cal. 595) in which it was held that evidence of previous convictions of dacoity, and of orders under section 110 of the Criminal Procedure Code, is admissible for the purpose of proving habit and association on a subsequent trial under section 400 of the Penal Code. On the basis of these two decisions the learned counsel has argued that the conviction under section 395, Penal Code of appellants Omer Ali, Darog Ali, Nazib Ali in the Harguar Haor dacoity on 4‑6‑1959 and the conviction of appellant Monwar Ali under section 395, Penal Code on 16‑6‑1959, in the case of dacoity in flat Steamer Landoor and the convictions of appellants Darog Ali, Mansur Ali and Pichon Ali on 29‑6‑1959, under section 411 of the Penal Code of dishonestly retaining articles robbed in Kanjor Haor dacoity as mentioned in the early part of our judg ment are inadmissible, and that the convictions under sections 395 and 411 of the Penal Code as aforesaid being , beyond the period of the charge namely June 1954 to October 1958, were not relevant. The evidence of these convictions being after the period of the charge are not strictly admissible in the light of the decisions aforesaid. It is only previous convictions that is relevant as evidence of bad character. The convictions being after the period of the charge they are not relevant as evidence of bad character. We therefore do not place much reliance on these convictions in forming our estimate of the offence under section 400 of the Penal Code. These convictions however are indicative of the participation of Darog Ali, Omar Ali, Nazib Ali and Manwar Ali m the dacoities of Harguar Haor and flat Steamer Landoor. 'As to the conviction under section 411, Penal Code of Darog, Ali, Mansur Ali and Pichan Ali we find that they were convicted for having in their possession property robbed in the Kanjor Haor dacoity. In that view of the matter we have taken these convictions into consideration. But not as evidence of bad character. It may be mentioned that these convictions are not entirely independent convictions for Dacoity or for retention of the stolen property, outside the period of the charge. The dacoities committed were within the period of charge and the subsequent conviction only confirmed the evidence in the case. In dilating upon the decisions of the learned counsel for the appellants we have substantially touched upon the decisions cited by the learned D. L. R. excepting the one in the Queen v. Mook taram Sirdar (23 W R 18), (criminal) which is perhaps the earliest case on the subject of association, under section 400 of the Penal, Code. It was held in this decision that it was necessary, in order to establish a charge under section 400, Penal Code, that the prosecution should make out that there existed at the time specified a gang of persons associated together for the purpose of habitually committing dacoity, and that the accused was one of the gang. There is little doubt that in this case the prosecution has placed substantial evidence as to the existence of the gang associated together for the purpose of habitually committing dacoities and the question left is only as to whether each of the appellants before us was one of the gang. Before taking up the individual treatment of each appellant we feel it necessary to say a few words on the general sort of argument made by the learned counsel to the effect that the identification parades in these cases took place long after the incidents. There is no animus and some of the witnesses are very respectable people. When dacoity is attempted by certain persons their faces cannot easily be forgotten. So far as the identification of the articles go the articles that were used by the victims could be identified even long after. The present being not directly, a case of dacoity under section 395, a lot ‑of time was required for verification as to in which of the dacoities the appellants might have taken part and ire which dacoities the articles recovered from the possession of the appellants, were robbed and who were competent witnesses to identify the dacoity concerned and the recovered goods. One other argument of the learned counsel was that the confession of Maharram Ali, approver cannot be accepted as the confession was made when he was in police custody. The order sheet shows that Maharram Ali was in the Jail custody, and further neither the‑ trial Court nor we have placed much reliance on the confession. We will now consider the case of each appellant separately. Appellant 1 Omer Ali.‑His association with other appellants and the approver P: W. 1 has been testified to by the approver P. W. 1 himself and a large number of other witnesses. P. Ws. 91, 92, 242, 257, 267 and 268, have deposed that a boat dacoity was committed in the Harguar Haor in Aswin, 1365, B. S. that is on the 15th Aswin, 1365 B. S. to be precise, that dacoity was committed in the boat of P. Ws. 91, 257, 267 and others. Their evidence in substance is that they were coming in a boat from Dharmapasha bazar and when they reached Harguar Haor at dusk P. W. 91 found his stolen boat being plied by some people. He enquired of the inmates of the boat as to where they got the boat. Thereupon two persons in Khaki dress armed with dao and ramdao came out of the Chayee (Hood) of that boat and made a query as to what they, that is the inmates of the victim boat, had in their boat. The witnesses and other inmates of the boat being frightened, raised alarm which evoked response from the inmates of a Panshi boat which was close by. The inmates of the Panshi boat stated that they were thana police and were coming with guns. Four of the inmates of the dacoits' boats fell into the river and out of them two were caught by the witnesses namely appellant Omar Ali and Darog Ali who were in Khaki dress. Two other dacoits were also arrested by them at the point of gun by the police and they were approver Maharram Ali and appellant Nazib All: Police seized the articles found in the boat of the dacoits including daggers and spears. These witnesses have further stated that there was a Sessions case over that dacoity and the arrested dacoits were convicted in that case. P. Ws. 92 and 268 have corroborated the above witnesses. Their testimony is that on the relevant date they were returning from Dharmapasha bazar in a boat along with some others and when they reached Harguar Haor after dusk they found four persons under arrest with police and Arab Ali (P. W. 91) and others. P. W. 92 identified appellant Omar Ali‑ and two others namely appellant Nazib and approver Maharram Ali while P. W. 268 identified this appellant Omar Ali as also the approver Maharram Ali and appellant Darog Ali. He appears to have at first wrongly identified appellant Yad Alias one‑ of the arrested persons and then corrected him self by saying that the 4th man was Nazib Ali and not Yad Ali. The learned counsel for the appellant has submitted that no reliance should be placed on the identification of this nature as the identifying witness was not certain about the particular accused We do not find any force in this argument having regard to the fact that P. W. 268 made a mistake about one of the four arrested accused and immediately corrected himself saying "I found this (identifying Nazib) as one of them and not the other (Yad Ali)." Another corroborating witness is P. W. 277 who is a respectable person. He has been Sarpanch for about 18 to 20 years and founder Secretary of Khoda Buksh Junior High School of D4armapagha and is a Secretary of Special Growers and Sellers Corporation Society and a member of Dharmapasha thana council. He identified Omer Ali and Maharram Ali in Court. The other witnesses who have corroborated the story of the dacoity in the Harguar Haor are P. Ws., 242 and 235. ‑ Their evidence is that`‑ they were on patrol duty in a Panshi boat on 12‑10‑58 and after they reached Harguar Haor they heard shouts "Dacoits", "Dacoits" whereupon saying that they were police men and were coming with guns and there should be no fear as they were proceeding with great speed to the victim boat. They found two persons under arrest in the boat and two persons in the water and the latter two men were also arrested at the point of gun by P. W.

242. The constable, that is P. W. 235 Kala Mia did not identify the accused as being amongst the arrested accused but the Officer‑in‑Charge identified them as accused appellant Omar Ali, Darog Ali and Nazib Ali and the approver Maharram ` Ali. The Officer‑in- Charge made it clear that Omar and Darog Ali were already under arrest in the boat and. Maharram and Nazib Ali who were found in the water were arrested after their arrival. P. W. 242 the Officer‑in‑Charge has also spoken of the recovery of a number of articles from the dacoits boat. The fact that the approver and the appellants Omar Ali and Nazib Ali were convicted in that dacoity case, in a Sessions Case, is proved by the certified copy of the judgment Exh. I1 (1) dated 4-6‑1959. Thus the association of the aforesaid three appellants and the approver for the purpose of committing the dacoity and their conviction jointly in the Harguar Haor dacoity case have been established beyond doubt. In a dacoity committed at Tagar Haor on 20th Aswin, 1363 B. S. as deposed by P. W. 91 and 92 a Poplin full shirt Exh. 10 amongst other things is said to have been taken away by the dacoits. ‑It has been identified by P. W.

91. It was recovered from a boat in joint possession of this appellant Omar Ali and his sons appellants Nazib Ali and Yad Ali. The evidence of P. W. 242 shows that this shirt was recovered from the boat jointly possessed by all the three accused. This is borne out by the search list Exh. 7 (7) as also by P. Ws. 277 and

278. Several other articles were also recovered from that boat. Those were articles said to have been looted away by dacoits in six separate dacoities. The green Lungi and the three green Sarees according to the evidence of P. W. 48 were robbed by the dacoits in the Huliar Haor dacoity committed in the early pact of Aswin 1362 B. S. in the boat of P. Ws. 47, 48, 49 and 50 who have testified to this dacoity. It has transpired in their evidence that the dacoits took away with them amongst other things a bundle of new clothes of P. W. 48 including new Sarees of different length and a Tahban. The Bhagolpuri Lungi Exh. IV, the new Saree and this Tahban were mentioned in the F. I. R. Exh. 6(6). The Bhagolpuri Lungi Exh. IV is said to have been taken away by the dacoits in another Huliar Haor dacoity committed on 4‑10‑54 and in that dacoity besides Exh. IV the brass Tagari Exh. II and the bed sheet Exh. III were also said to have been looted away. These facts have been testified to by P. W.

132. He identified the Lungi Exh. IV as a property removed by that dacoity. It may be mentioned here that P. W. 52 an Ex‑Zamindar of Sunamganj, father of P. W. 132 sought to corroborate him by saying that when he was returning bare bodied on the relevant date P. W. 132 Manabandu Chowdhury reported about the dacoity to him put his statement cannot be treated as evidence as Manabandu did not say that he reported the incident to his father. P. W. 132 also spoke of having recognised amongst dacoits the approver Maharram Ali and some others. He identified appellant Razzaque saying that he took away his ring and wrist watch. He made a mistake in trying to identify two other accused. His failure to properly identify those two accused has adversely been commented upon by the counsel. The witness of course faltered while trying to identify those two accused but his identification of Maharram and Razzaq was firm and there is no reason to doubt the correctness of the same. P. Ws. 225 and 226 have deposed of a dacoity having been committed in their boat at Dukhia beel at about 7 p.m. on 14th Bhadra, 1365 B. S. the booties whereof comprised of shirt Exh. VIII, one phial of Kostari scented oil, Exh. XXXII, one bottle of Shudashamudra oil Exh. XXXI and five packets of Purnachandra biri Exh. XXX. Exhs. XXX and XXXI were seized from the boat in possession of appellant Omar Ali and his sons Yad Ali and Nazib ali. Another dacoity has been proved by P. Ws. 200 and 201 to have been committed in the Haor between Haripur and Zamsed pur on the night of 32nd of Sraban 1365 B. S. in which a large number of properties were looted away. The evidence of P. W. 200 would show that the looted arti cles included the rose coloured blous Exh. XXIX, one Kora Ganjee Exh. XXI (1) and another Kora Ganjee Exh. XXI (2). In a Test Identification parade held by a Magistrate, these articles were identified by P. W. 200 Afzal Hossain and claimed by him. One Bhagolpuri Chaddar Exh. WIT and one N. D. Chaddar Exh. XVIII (1) which were among the booties of the Flat Steamer Lendoor dacoity were also recovered from the boat in joint possession of Omar Ali and his sons Yad Ali and Nazib Ali. As already mentioned this dacoity has been proved by P. Ws. 167, 168, 169, 170, 171 and

262. The test identification parade of the recovered articles of this dacoity was held by a Magistrate P. W. 274 who has testi fied to the effect that P. W. 167 identified the Endi Chaddar as his property and P. W. 262 identified the Bhagolpuri Chaddar as his property, these properties having been looted away by the dacoits in the flat Steamer Landoor dacoity. P. W. 262 also identified the Endi Chaddar as that of the Sarang P. W.

167. P. W. 171 also identified the Endi Chaddar as belonging to Abdul Awal Sarang P. W.

167. He also identified the Bhagolpuri Chaddar as being his property. Credibility of the above witnesses has remained unshaken. Another dacoity was committed in Dhanai river on the 15th Bhadra, 1365 B. S. at about 9 p. m. in the boat of P. W. 215 which was carrying students namely P. Ws. 236 and

237. The above three witnesses have proved this dacoity in which articles including the shirt Exh. X (1), 7 books Exh. XXVII, mosquito curtain Exh. XXIX and the plastic bag Exh. XXVIII were taken away by the dacoits. Out of the above articles the mosquito net Exh. XXIX and the chocolete coloured shirt Exh. X(1) were recovered from the boat in joint possession of appellants Oniar Ali, Yad Ali and Nazib Ali. These articles were identified by P. W. 236 as belonging to him. This is in all looted properties of as many as seven different dacoities were recovered from the joint possession of Omar Ali and his sons Yad Ali and Nazib Ali. This fact is borne out by the search list Exh. VII (7) and P. Ws. 242, 277 and

278. It has been argued that the above recovered articles were not uncommon articles and as such no reliance should be placed on the testimony of witnesses .of identification of the same. But it must be borne in mind that with the exception of the green Lungi and Sarees; the blouse and the Kora Ganjee, the other articles were used by the owners and they were competent to identify them. The green Lungee and Sarees appear to have been mentioned in the F.

1. R. Exh. 6(6) as lodged by P. W. 47 wherein it was stated that one bundle of Babur Hati Sarees of P. W. 48 was taken away by the dacoits. It is very likely that the green Sarees Exh. 6 to 6 (2) were contained therein. It may be recalled that the green Sarees as well as the green Lungi were identified by P. W.

48. The Siri and Sudhasamundra oil were also specifically mentioned in the F. I. R. Exh. 1(34). Of course Purnachandra Diri was not mentioned but that item was described as (Biri one thousand complete). There is no reason why P. W. 225, falsely identify these articles claiming them as his. All that was suggested to him in cross‑examination was that these articles belonged to appellant Omar Ali but the suggestion was denied. There was no suggestion that the witness was not competent to identify the articles. It may also be mentioned that P. W. 225 identified the Biri and Sudhashamundra oil in a Test identification parade held on 9‑11‑1958 by P. W. 303, Magistrate who has also testified to this fact. In the F. I. R. Exh. 2(2) among the booties of the dacoity committed in the boat of P. W. 200 and others were mentioned sixty blouses and 96 ganjees. P. W. 200 stated in cross‑examination that he put marks to show price and that he put figures according to price. Hence he was in a position to identify the blouses and the ganjees. One Chaddar and one Endi Chaddar were mentioned in the F. I. R. Exh. 2(1) lodged by P.W. 167 in the fiat Steamer Landoor case. The mere fact that "Bhagolpuri" was not mentioned to describe the Chaddar does not go to show that the identification of Exh. XVIII by P. W. 167 was wrong. It was not put by the defence to the identifying witnesses that they were not competent to identify Chaddar. P. W. 167 maintained that he used the articles and were thus in a position to identify those. The Poplin sky coloured shirt and chocolete coloured Saree were also old and used clothes which could be identified by the wearers, thereof. On a consideration of all the facts and circumstances we are unable to accede to the view that the evidence of identification of these articles by the witnesses concerned is unreliable. Besides there is a volume of evidence of specific and general association was deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58; 68, 69, 70, 73, 74, 75, .76, 115, 122, 123, 125, 143, 144, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. To sum up it has been proved beyond doubt that the appellant Omar Ali was implicated in a number of dacoities; that he was convicted along with some other accused in two dacoities and the some articles of as many as seven different dacoities were recovered from his possession (from the boat in joint possession) of himself and his sons Yad Ali and Nazib Ali. It will be seen in course of our further discussions that other properties looted away by the dacoits in the above mentioned seven dacoities, were recovered from the possession of several other accused. It has thus been established beyond any scope of doubt that appellant Omar Ali belonged to a gang of persons associated for the purpose of habitually committing dacoity. Appellant No. 2 Nazib Ali. His complicity in the Harguar Hoar dacoity and his red-handed alongwith his father Omar Ali and brother Yad Ali and the approver has been testified to by P. Ws. 91, 92, 242, 257, 267 and

268. The identification of this accused by P. W. 268 was shaky as at first the witness did not identify this accused and later added that he was one of those who was found under arrest immediately after the occurrence. The evidence of the other witnesses just referred to does not suffer from any infirmity and should be accepted as correct. Besides, Nazib Ali was one of those arrested dacoits who had to face a Sessions trial which ended in the conviction of himself, his father appellant Omar Ali and appellant Darog Ali. This appellant also was identified in a Test identification parade by P. W.

92. It has been urged by the learned counsel for the appellants that if this witness attended the test identification parade why not the others? The simple answer to this question is that since four dacoits were caught red‑handed at the time of commission of the dacoity and were seen by the witnesses, test identification parade with regard to them would be without any significance. P. W. 92 went to identify other dacoits and when he found this appellant also there, he identified him too. The complicity of this appellant in the Huliar Haor dacoity has been deposed to by P. W. 50 Sadhan who identified him in Court and also previously in a test identification parade held by P. W.

280. It may be recalled that this dacoity has been proved by P. Ws. 47, 48, 49 and

50. The evidence of P. Ws. 236 and 237 is that they recognised this appellant Nazib Ali during the Dhanai river dacoity, which was committed in their boat. 7 hey have specifically stated that this accused was standing in front of them with a Ramdao in hand being in Khaki dress. They previously identified this appellant in a T. I. parade held by P. W. 304, a Magistrate on 25‑9‑1959. The only cross‑examination directed against the T. I. parade by this appellant was as to whether he complained that he was in fetters to which the witness returned a negative reply. The evidence as to recovery of properties of as many as seven dacoities from the boat in joint occupation of himself, his father appellant Omar Ali and his brother appellant Yad Ali has already been discussed. There is besides the volume of evidence as to his specific and general association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 7o, 73, 74, 75, 76, 115, 122, 123, 125, `126, 143, 144, 155, 156, 162, 173, 183, 184, 193, 194, 199, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. This is thus no doubt that he belonged to a gang of dacoits associated for the purpose of habitual commission of dacoities which is also borne out by the detailed evidence of the approver P. W: 1 Moharram Ali who has been substantially corroborated. Appellant No. 3 Yad Ali.‑His participation in two dacoities which may be styled as the Kadamsree dacoity and the Tagor Haor dacoity has been proved in this case. The evidence of P. Ws. 39, 40 and 41, has established the fact that a dacoity was committed in their boat at about 8 p. m. on 18‑9‑1955 in the Kadamsree Haor. P. W. 39, is a Sub‑Registrar. He was accompanied by his servant P. W. 40 and the deed writers P. W. 41 and Abdur Razzak. The clear evidence of P. W. 13, the Sub‑Registrar is that amongst the dacoits he recognised this appellant Yad Ali as also appellant Mansur Ali and the approver Moharram Ali and subsequently he identified them in a T: I. Parade. That T. I. Parade, was held on 21‑2‑1959 .by P. W. 303, the Magistrate who has borne out the Sub‑Registrar. No cross‑examination was directed at challenging the correctness of the T. I. Parade. The complicity of this appellant in the Tagor Haor dacoity has been testified to by P. W.

91. P. W. 91 has asserted that appellant Yad Ali as also another appellant Hura Gazi beat the inmates of the boat and took away the articles. He identified this appellant in a T. I. Parade held on 27‑8‑1959, as deposed to by P. W. 280; the Magistrate. Articles looted away in as many as seven dacoities were recovered from joint possession of himself and his father Omar Ali and brother Nazib Ali. On this point evidence against the father and the two sons is common and has already been discussed. His association with the gang of dacoits to which he belonged for the purpose of habitually committing dacoity has been testified to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 96, 115, 122, 123, 135, 126, 143, 144, 155, 158, 162, 173, 183, 184, 193, 194, 198, 203,204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. We, therefore, find that the charge against this appellant has been proved beyond reasonable doubt. Appellant No. 4 Darog Ali.‑His complicity in the Harguar Haor dacoity and his red‑handed arrest have been satisfactorily proved by P. Ws. 91, 92, 242, 257, 267, 268 and

269. P. W. 269 who is a primary school teacher has deposed that when he and his companions reached Harguar Haor in a boat, he found P. W. 91 Arab Ali, Daroga and other persons and four persons under arrest and at the request of Arab Ali he wrote the F. I. R. Exh.

2. He denied the defence suggestion that the accused‑meaning the persons found under arrest‑were arrested in Dharmapasha Bazar. This appellant was also convicted in that Harguar Haor dacoity case on 4‑6‑1959. The evidence showing his engagement in .the Harguar Haor dacoity receives great support from his final conviction. That he was one of the dacoits who perpetrated the Dhani river dacoity has been deposed to by P. W.

237. P. W. 237 has made a specific statement in his evidence that appellant Darog Ali took away his pant and money while appellant Nazib .Ali was standing in front of him with a Dao. The witness also identified him in a T. I. Parade held by P. W. 304, the Magistrate. There is nothing in the cross -examination of the Magistrate to show that the T. I. Parade was in any manner defective. The dacoity committed in Dhupiar Beel at about 7 p. m. on the 14th of Bhadra, 1365 B. S. has been proved by P. Ws. 225 and 226 as already found by us. They have been corroborated by P. Ws.

227. P. W. 225 identified this appellant Darog Ali as the dacoit who beat ‑ him. The identification of Darog Ali by P. W. 225 has not been specifically challenged by the defence. P. W. 225 also earlier identified this appellant in a T. I. Parade held on 9‑11‑1958 by P. W. 303 who has borne him out. There was no specific suggestion challenging the T. I. Parade or its correctness. There is evidence of recovery of articles looted away in three dacoities from the joint possession of this appellant and his son- in‑law appellant Tara Miah. P. W. 93 and his wife P. W. 94 have deposed to a dacoity having been committed in their boat at about 8 p. m. in one Aswin about four years before the date of their deposition, namely, 14‑11‑1960. Their further evidence was that the dacoits took away among other things the brass Badna Exh. XII. They have received corroboration from P. W. 95 to whom these facts were reported. According to P. W. 93 the dacoity was committed at Tagor Haor but the evidence of P. W. 95 is that he reported that there was dacoity in his boat at Satkurir Haor. Whether the Haor is known by both the names or whether Satkurir Haor is a part of Tagor Haor or vice versa, is not clear. But the fact remains that both P. W. 93 and his wife P. W. 94 have claimed the Badna Exh. XII as theirs. Of course, both of them admitted in cross‑examination that it bears no special mark yet it must be borne in mind that the Badna was used by them and that they were in a position to identify it. No reason has been suggested why the witnesses and particularly a woman would depose falsely against an accused against whom they have no animus. This Badna was recovered from a boat in joint occupation of this appellant Darog Ali and his son‑in‑law appellant Tara Miah as deposed to by P. Ws. 242, 277 and 278 who are borne out by the search list Exh. 7(3 ). Another dacoity was committed in Kanjor Haor on the 4th of Ashar, 1365 B. S. at 7 or 7‑30 p.m. This has been proved by P. W. 247, his wife P. W. 248 and his aunt P. W.

249. Their evidence is that the booties included a gold Kanpasha and a silver chain. P. Ws. 247 and 248 have identified the gold Kanpasha Metro pattern Exh. XXIV and the silver chain with locket Exh. XXXV as belonging to P. W.

248. This appellant Darog Ali himself cross‑examined P. Ws. 247 and 248 and suggested that these ornaments belonged to him but the witnesses denied the suggestion. These pieces of ornaments have been proved to have been recovered from the possession of this appellant and his son‑in‑law Tara Miah and that fact has not been challenged but admitted as the cross‑examina tion indicates. It may be mentioned here that the silver neck chain and the gold ear‑rings were mentioned as stolen properties; a list whereof was given in the F.

1. R. Exh. 1 (35), lodged by P. W.

247. A Khaki half pant with back lace (new) was also recovered from the joint possession of this appellant and his son‑in‑law Tara Miah. It has been identified in Court as one of the articles looted away in the dacoity which took place between Jamshedpur and Haripur by P. W.

200. The said witness earlier identified the Khaki pant in a T. I. Parade held on 23‑12‑58 by P. W. 309 a Magistrate who has also testified to this fact. It has come to light in the evidence of this Magistrate that the articles put in the T.

1. Parade were mixed up with similar other articles of same quality and that now clothes of similar nature were mixed up. The recovery of the articles of the three dacoities referred to above from the joint possession of appellant Darog Ali and Tara Miah has been proved by Exh. 7 (3) corroborated by P. Ws. 242, 277 and

278. There is besides the volume of evidence of specific and general association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, i23, 125, 126, 14.5, 144, 155, 156, 162, 173, 183, .184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 24o, 253, 254, 263, 264 and

311. In those circumstances we find that the charge has been driven home against this appellant beyond reasonable doubt. Appellant No. 5 Tara Mia.‑He is the son‑in‑law of appel lant No. 4 Darog Ali. That this appellant was one of the dacoits responsible for the commission of the Dhanai river dacoity has been proved by P. W. 236 who identified him in Court as the dacoit who took away his books, money and other articles. This appellant was also identified by P. W. 236 in a T. I. Parade held on 25‑9‑1959 by P. W. 304, the Magistrate. The Magistrate's evidence shows that 18 suspects were mixed up with 56 other under trial prisoners as more under trial prisoners were not available. In any case the number of under trial prisoners with whom the suspects were mixed up were more than three times the number of the suspects. There is no reason to think that there was any impropriety in the T. I. Parade. P. W. 304 denied the defence suggestion that this appellant Tara Mia complained to him that Moharram Ali showed him to the students on the verandah. We have already discussed above the evidence regarding recovery of some of the booties of three different dacoities from the joint possession of himself and his father‑in‑law Darog Ali. We are satisfied that those were properties of dacoity and found in his possession. There is in addition the volume of evidence of specific and general association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 125, 126, 143, 144, 155, 156, 162, 173, 179, 183, 184, 193, 194, 193, 203, 204, 205, 218, 219, 221, 222, 223, 224 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. The charge, therefore, of belonging to the gang has been driven home against this appellant beyond reasonable doubt. Appellant No. 6 Abdur Razzak. Commission of dacoity at Bathan Khal‑ on the 20th of Bhadra, 1303 B.S. at about 11 p.m. has been proved by P. Ws. 78, 79, 80 and 195 corroborated by P. Ws. 81 and 82 to whom it was reported on the very night of dacoity. This appellant Abdur Razzak has been identified to have been one of the dacoits by P. W. 195 who claims to have recognised him at the time of the dacoity. This story of recognition of this appellant by P. W. 195 has not been challenged by way of cross‑examination. P. W. 132 identified this appellant as a dacoit of the Huliar Haor dacoity in a T. I. Parade as testified to by him as well as by the Magistrate who held the T. I. Parade, namely, P. W. 280 but P. W. 132 made several mistakes in identifying him in Court. He repeatedly identified wrong persons and then affirmed that he recognised this appellant. His identification of this appellant is thus of a shaky character and we would, therefore, leave it out of consideration. P. Ws. 148, 149 and 150 have proved commission of a dacoity at Sholabariar Char at 7 or 8 p.m. in one Kartick about three years before their deposition on 24‑11‑

60. The booties included a green colour new Tangail Shari Exh. VI(IV). This Shari has been proved by P. Ws. 265, 275 and 288 corroborated by search list Exh. 7(13) to have been recovered from the boat in possession of this appellant. It has been identifies as his property by P. W.

148. In the list of articles looted away by the dacoits as given in the F. I. R. Exh. 2(12) a parrot colour Tangail Shari was mentioned. The learned counsel for the appellants contended that green Shari is not the same as parrot colour Shari but the learned Deputy Legal Remembrancer submitted that there is little differe nce between green colour and parrot colour and while one man may describe a thing as green, another may described it as parrot colour. The F. I. R. shows that a Tangail Shari was one of the robbed articles and the Shari recovered is also a Tangail Shari. We are inclined to accept the submission of the learned Deputy Legal Remembrancer that the same thing may be described by one as green and by another as parrot colour; there being no substantial difference between the two colours, Considering these circumstances along with the evidence of association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 69, 6,9, 70, 73, 74, 75, 76, 115, 122, 123, 125, 126; 143, 144, 155, 156, 162, 173, 183, 184, 188 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 218, 244, 245, 246, 253, 254, 263, 264 and 311, and particularly of the approver P. W. 1 Maharram Ali who has given a detailed account of what part this appellant took in the dacoities. We have no doubt that the prosecution has succeeded in substantiating the charge‑sheet against this appellant beyond reasonable doubt. Appellant No. 7 Chand Mia.‑In the Harguar Haor dacoity proved by P. Ws. 91, 92, 242,.257, 267, 268 and 269 participation of this appellant has been testified to by P. W.

267. This evidence of P. W. 267 does not bear scrutiny. His evidence in this connection quoted in verbatim is:‑ "Identifies Omar and Chan (we caught these two). Identifies Najib and Maharram. Daroga arrested these two." Thus according to this witness the four persons arrested in that dacoity were Maharram Ali, Omar, Nazib Ali and Chand Mia but the uniform testimony of the other witnesses of this dacoity referred to above, were that the arrested persons were Maharram Ali, Omar Ali, Nazib Ali and Darog Ali. It is thus manifestly clear that P. W. 267 mistook Chand Mia for Darog Ali. Chand Mia was not one of the arrested persons and he did not face any trial in connection with the Harguar Haor dacoity: For those reasons we place no reliance on the wrong identification of this appellant by P. W.

267. It may be observed here that Chand Mia was not put in any T. I. Parade and was not identified by P. W. 267 or by any other witness. A striped bed sheet Exh. III was recovered from the posses sion of this appellant as proved by P. Ws. 265, 275 and 288 corroborated by the search list Exh. 7(12). It has been claimed by P. W. 132 to have been one of the articles taken away by the dacoits in the Huliar Haor dacoity. In his cross‑examination the witness said that he purchased the bed sheet and the Lungi from Sunamganj market and that similar articles are available in the market. But the bed sheet appears to have been in use of P. W. 132 before it was looted away and as such he was in a position to identify it. No reason has been suggested why the witness would perjure himself on this point. Apart from the above facts and circumstances the prosecution has produced sufficient evidence of association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 125, 126, 143, 144, 155, 156, 162,173, 179, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 258, 263, 264 and 311, Considering all the circumstances we are inclined to hold that the charge against this appellant has also been driven home beyond all reasonable doubt. Appeal No. 8 Mansur Ali.‑The evidence on record shows that properties of as many as eight different dacoities were recovered from the boat in his possession. P. Ws. 225 and 226 have identified one bottle of Kushturi oil Exh. XXXII as an article looted away in the Dhupiar Beel dacoity. P. W. 225 claims this Kushturi oil as his property. This finds corroboration in the F. I. R. Exh. 1(34). The recovery of this article as also the article of seven other dacoities which will be presently referred to, has been proved by P. Ws. 242, 277 and 278 corroborated by the search list Exh. 7(4). P.Ws. 248 and 249 have testified that the nose pin Exh. XXXVI belongs to P. W. 248 and was taken away by the dacoits in the Kanjor Haor dacoity. This item of gold ornament was placed in a T.

1. Parade of properties and identified by the above P. Ws. in a T. I. Parade held by the Magistrate P., W.

302. There is no reason to suppose that the identification was wrong. One Koora Ganji Exh. XXI was also recovered from the boat. It is said to be a looted article of the dacoity that took place between Jamshedpur and Haripur. This Koora Ganji has been identified by P. W. 200 to be his. This witness is a dealer in ready made clothes and a tailor himself. The steel trunk Exh. XX and the aluminum, tifiin carrier Exh. XIX were proved by P. Ws. 167, 168, 169, 170, 171 and 262 to be articles looted away in the flat Landoor dacoity. Some of them also identified these articles in a T. I. Parade held on 10‑11‑1958 by P. W. 274, the Magistrate who has borne them out. The evidence of the Magistrate is that Abdul Khaleque P. W. 262 identified these articles as his own properties and that P. W. 171 also identified the steel trunk as the property of Abdul Khaleque P. W.

262. The quilt (of red Shalu‑Exh. XIV) has been proved to be one of the looted properties of the Sholobarier Char dacoity. It has been identified by P. W. 149 as an article robbed by dacoits in the said dacoity. In cross‑examination the witness gave measurement of the quilt as 4 x 3 cubits and stated that this quilt and the bedding, which was also the subject of dacoity were purchased by him at Rs.

30. It has been contended by the learned counsel for the appellants that the size of this quilt as given in the search list is 4J x 3' cubits and that being so this quilt is a different quilt. The difference in measurement being very slight and negligible, we do not find much force in this contention. The evidence of P. W. 149 the claimant of this quilt discloses that they purchased various clothes and other articles in connection with the marriage. There is nothing appearing in the evidence to indicate any reason for his evidence being disbelieved. P. W. 80 has identified the hammer Exh. VII as one of the articles which formed the booties of Bethanbari dacoity. P. W. 80 is a carpenter and he lost in the dacoity among clothing etc., this hammer and a saw. In cross-examination he asserted that his name was inscribed in these implements although he admitted that such things are sold in the market. As his name was inscribed in the hammer there can be no doubt that the hammer belonged to him and it was looted away by the dacoits. In the Surma river dacoity a gold ring with the name "Hemandra" engraved on it in Bengali Exh. V(1) was taken away by the dacoits. It has been identified by P. W. 63 Hemandra as his gold ring. The fact that his name is engraved in it proves beyond doubt that this is his ring which was removed by dacoity in the Surma river. It was also mentioned in the F. I. R. Exh. 1(12). Another gold ring with "B" engraved on it Exh. V which is proved to have been looted away in the Kadamsree Haor dacoity has been claimed by P. W. 39 and it was mentioned in the F. I. Rs. Exhs. 1(6) and 1(7). P. W. 39 has deposed that "B" signifies Badrodooza which is the name of his younger brother who presented it to the witness. It has transpired in his evidence that Badrodooza was in Karachi from three years before the date of his deposition. P. W. 39 further said that this ring had also nark ‑"C. M. J"., which meant Calcutta Muslim Jewellery Firm. P. W. 46 has corroborated P. W. 39 on this point by stating:‑ "We inscribe C. M. J. on our manufactured ornaments. We inscribe customer's names also if they so orders. (On perusal of Exh. V). This ring is our manufacture. I know BadruddoJJ who is brother of Sub‑Registrar. On order of Badruddoza manufactured this ring and we inscribed the letter "B". In addition to the above evidence, there is the volume of evidence of his specific and general association with the other accused and the approver as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 124, 125, 126, 143, 144, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. In those circumstances we find that the charge has been driven home beyond reasonable doubt against this appellant. Appellant No. 9 Manu alias Manchar Ali.‑The participation of this appellant in the Kadamsree dacoity has been deposed to by P. W.

39. This witness who is a Sub‑Registrar identified, this appellant in Court and also identified him earlier in a T. I. Parade held on 21‑2‑1959 by P. W.

103. His complicity in the Huliar Haor dacoity has been testified to by P. W. 56 who also identified him both in Court and in T. I. Parade held by P. W. 280 who has stated in the evidence that P. W. 50 identified this appellant Manchar Ali alias Man u as a dacoit. P. W. 170 has identified this appellant as one of the dacoits of the fiat Landoor dacoity. This appellant was also identified by this Witness in a T. I. Parade held on 29‑11‑5$ by P. W. 303 who has corroborated P. W. 170 on this point. This appellant was also convicted in the flat Landoor dacoity case by the Sessions Court judgment Exh. 11 (2). Commission of a dacoity at Dakuar Kara Khal on the 24th of Magh, 1363 B. S. at about 9 p. m. has been proved by P. Ws. 106, 108 and 109 the inmates of the victim boat corroborated by P. W. 110 to whom it was reported that very night It has transpired in their evidence that the booties comprised among other articles two Tagaris, P. W. 106 has identified the brass Gamla Exh. XIII (11) as one of the Tagaris belonging to him which was looted away in that dacoity. This Exh. XIII (II) was recovered from the boat in possession of this appellant Manchar Ali as proved by P. Ws. 42 and 288 corroborated by the search list Exh. 7 (16). Besides the above evidence of identification of this appellant as a dacoit in three dacoities and of recovery of an article of dacoity from his possession, there is further the evidence of general and specific association with the other accused and the approver Moharram Ali as testified to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 124, 125, 126, 143, 144, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. In those circumstances we are of the view that the charge has been driven home against this appellant also beyond reasona ble doubt. Appellant No. 10 Mahabbat Ali.‑There is no evidence in his case that this appellant was recognised amongst the dacoits in any of the dacoities proved in this case and no incriminating article was also recovered from him. The only article recovered from his possession is a Ramdao. The Ramdao is said to have been found in his boat. There was no special mark on the Ramdao and such a Ramdao is often kept in boats by those who ply boats in such dangerous zones where dacoities are rampant, for protec tion against on slaughts of dacoits and cannot as such be treated as an incriminating circumstance. The rest of the evidence, so far as this appellant goes, consists of the testimony of a number of witnesses as to his general association with the other accused and the approver P. W.

1. Moharram Ali. We are not inclined in this case to hold that such association was for the purpose of habitual commission of dacoities in the absence of evidence that he was even implicated in any dacoity or retained any stolen article of dacoity. In that view of the matter, we are of the view that this appellant Mahabbat Ali is entitled to the benefit of doubt. Appellant No. 11 Latu alias Abdul Latif.‑P. W. 132 has deposed that the brass Gamla Exh, II is one of the properties taken away by the dacoits in the Huliar Haor dacoity. This witness is a respectable person being a son of an Ex‑Zamindar of Sunamganj and there is nothing against him so as to make us disbelieving him. The recovery of those brass Gamla from the possession of the appellant has been proved by the oral evidence of P. Ws. 265, 275 and 288 as well as by the search list Exh. 7{l l). Further there is evidence of general association furnished by P. Ws. 1, 8, 9, 18, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 124, 125, 143, 144, 155, 756, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 212, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. Having regard to the evidence and circumstances as above we hold that the prosecution has been able to bring home the charge against this appellant. Appellant No. 12 Lal Mia.‑There is no evidence of impli cation of this appellant in any dacoity case and of his identifica tion by any witness as participating in any of the dacoities proved in this case. Half a piece of Dhuti Exh. IX was recovered from his possession as deposed to by P. Ws. 42 and 288 and the search list Exh. 7(17). P. W. 80 has claimed this as a property looted away in the Batankhal dacoity. This witness identified a Dhuti and not half of the Dhuti; but what has been marked Exh. IX is half a piece of Dhuti and not half piece of Dhuti. This kind of identification is utterly unsatisfactory and does not deserve any reliance. The only evidence that remains against this appellant is regarding general association with the other accused and the approver as spoken of by a number of witnesses. We are disinclined to hold on such evidence only that this appellant associated with the others for the purpose of habitually committing dacoity in the absence of any evidence of his participation in any dacoity or of his implication in any dacoity, by even suspecting him in any F. I. R. Hence he deserves the benefit of doubt. Appellant No. 13 Huragazi.‑His complicity in the Tagar Haor dacoity has been deposed to by P. W. 91 who identified him in Court as a dacoit recognised at the time of the dacoity. The witness also identified him in a test identification parade held by P. W.

280. Besides, some articles of three dacoities were recovered from his possession, as deposed to by certain witnesses. One of the booties of the Dhanai river dacoity was a green plastic bag Exh. XXVIII, P. W. 236 has identified the said bag as his saying that it was robbed by dacoits. P. W. 236 was a student who also lost certain books along with other articles in the same dacoity. We have reason to think that the identification of the plastic bag by this student was correct. The recovery of this plastic bag as also of the two other articles from the boat in possession of this appellant has been proved by P. Ws. 242, 277 and 278 and the search list Exhs. 7 (5). P. W. 106 has deposed that two aluminum Tagaris Exhs. XIII (1) and XIII were among the booties of the Daukar Kora Khal dacoity, and that they belonged to him. It may be observed that P. W. 106 is sweetmeat shop‑keeper who sells sweetmeat in different bazars. This is why it is natural that he had Tagaris with him in his boat. The evidence of P. W. 91 shows that a Tarkish towel was lost in Tagar Haor dacoity and that Tarkish towel is Exh. XI. As already observed all these articles were recovered from the boat in occupation of this appellant which fact is testified to by P. Ws. 242, 277 and 278 and borne out by the search list Exh. 7 (5). Over and above the recognition of this appellant in a dacoity and recovery of certain properties of three distinct dacoities from his possession, there is also the evidence regarding his general association with others as borne out by 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 96, 115, 122, 123, 125, 126, 142, 144, 155, 156, 162, 1 73, 183, 184, 193, 194, 198, 203, 204, 205, 212, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. From all these facts and circumstances appearing in the evi dence against him we conclude that he was a member of the gang associated for the purpose of habitually committing dacoity. Appellant No. 14 Belayet Ali.‑The brass Gamla Exh. XIII (3) has been proved to have been recovered from the possession of this appellant in a boat by P. Ws. 42, 265, 288 and the search list Exh. 7 (14). This brass Gamla has also been identified and claimed by P. W. 106 as his property looted away by the dacoits in a dacoity which took place between Nayar Hat and ' Chandpur village. There is also the evidence against him of general association as borne out by the evidence of P. Ws. 1, R, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 125, 126, 143, 144, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264, and

311. In these circumstances we hold that the prosecution has succeeded in bringing home the charge under section 400 of the Penal Code to this appellant. Appellant No. 15 Pichan Ali.‑The prosecution has adduced evidence to the effect that the Murshidabadi green Saree Exh. VI (6) was one of the booties of the Kanjar Haor dacoity. P. W. 247 his wife P. W. 248 and his aunt P. W. 249 identified this‑Saree as belonging to P. W. 247 and as a property looted away in the Kanjar Haor dacoity. P. Ws. 247 and 248 also identified this Saree as such in a Test identification parade held by a Magistrate, P. W, 274 who has also testified to this effect. It may be mentioned here that this Mursbidabadi green Saree was mentioned in the F.

1. R. Exh. 1 (35). This appellant was also convicted in a case under section 411 of the Pakistan Penal Code as will appear from the judgment Exh. 11 dated 29‑6‑1959. We have already discussed the circumstances under which we have taken this conviction into consideration though it is not a previous conviction. The recovery of this Saree from the boat in possession of this appellant has been proved by P. Ws. 242, 277 and 278 corroborated by the seizure list Exh. 7 (8). Over and above this recovery of looted property of a dacoity from his possession there is the evidence of general association as deposed to by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 58, 68, 69, 70, 73, 74, 75, 76, 115, 122, 123, 125, 126, 143, 144, 153, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 221, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264 and

311. Having regard to the recovery of a property robbed in a dacoity from the possession of this appellant and the evidence of general association referred to above we hold that the charge has been established against him beyond reasonable doubt. Appellant No. 16 Geda alias Samuz Ali.‑There is no evidence of recognition of this appellant in any dacoity by any of the witnesses. It has been said that a bedding Exh. XVII which was one of the booties of the Salobariarchar dacoity was recovered from his possession as deposed to by P. Ws. 242, 277 and 278, as shown in the seizure list Exh. 7 (6). It is also said to have been mentioned in the F. I. R. Exh. 2 (12). The only witness of identification of this property is P. W.

149. He identified a bedding saying "Dacoits took away . . . . . this bedding" (Exh. XVII identified). There is no mention of any bedding in the F. I. R. Exh. 2(12). One of the many items mentioned in the list supplied therein is "a mat" and another "a matress". Thus the evidence of P. W. 149 that a bedding was looted away by the dacoits is not borne out by the F. I. R. Confronted with this situation the learned Deputy Legal Remembrancer conceded that there was no reliable evidence that any property robbed in the Shalebariarchar dacoity was found in possession of this appellant. All the evidence that remains against him is of general association. But in the absence of his recognition as a dacoit by any witness and of recovery of any incriminating articles from his possession we are not inclined to hold that he was associating with the other accused and the approver for habitually committing dacoity. Thus we find that in this case the offence has not been brought home beyond reasonable doubt. Appellant No. 17 Ayub Ali.‑The complicity of this appellant in the Huliar Haor dacoity has been testified to by P. W.

48. He identified this appellant as being one of the dacoits. There is nothing in the cross‑examination of this witness to affect his veracity. There is also evidence of recovery of certain articles of two dacoities from his possession and they are one Baburhati violet coloured Saree Exh. VI (3) and one small saw Exh. VII. This recovery has been testified to by P. W. 287, and borne out by the seizure list Exh. VII (10). The evidence of this witness is not, however, satisfactory inasmuch as he had no recollection whether he arrested this appellant Ayub Ali from his house or not. He further stated that he had sent his diary to the Officer‑in‑Charge, Dharmapasha P. S. but was not finding it at the time of his deposition at the trial. But the evidence of search witness P. W. 310 clarified the position. He has categorically stated that the Daroga arrested Ayub Ali on that date. He is a co‑villager of this appellant living only two furlongs away from the latter's house. In cross- examination. He made it further clear by saying that Ayub Ali was arrested in his hut. No enmity of this witness against Ayub Ali was even suggested. Hence there is no reason for non‑acceptance of the evidence of P. W. 310 together with that of P. W. 287 as correct. P. W. 48 has proved that this Saree was one of the looted articles of Huliar Haor dacoity. It also appears to have been mentioned in the First Information Report Exh. VI (6) which describes item No. 3 as "one bundle of Babur Hati Saree of Omar Krishna". Thus we have good reasons to accept this Saree as a property of Huliar Haor dacoity. The small saw Exh. 7 is claimed as his property by P. W.

80. According to him it was lost in the Betambari dacoity. As already mentioned this P. W. 80 is carpenter and according to the evidence on record his hammer and this small saw were looted away by the dacoits. Recovery of this saw from the possession of this appellant in his house has been proved by the same set of witnesses who have proved the recovery of the Baburhati violet coloured Saree from the house, namely P. Ws. 287 and 310 corroborated by Exh. 7 (10). Repetation of discussion of this evidence here is unnecessary. Thus the evidence shows that these two properties of two separate dacoities were recovered from the possession of this appellant. Over and above these facts namely that of his recognition as a dacoit in one of the dacoities and recovery of properties of two dacoits from his possession there is also the evidence of general association as furnished by P. Ws. 1, 8, 9, 18, 19, 23, 24, 42, 43, 44, 45, 43, 58, 68, 69, 70, 73, 74, 75, 76, 115 , 122, 123, 125, 126, 143, 144, 153, 155, 156, 162, 173, 183, 184, 193, 194, 198, 203, 204, 205, 218, 219, 2 22 1, 222, 223, 224, 229, 238, 244, 245, 246, 253, 254, 263, 264.and

311. On a consideration of all these facts, circumstances and evidence we feel satisfied that the charge has been brought home to this appellant Ayub Ali also beyond reasonable doubt. In the result we allow the appeal of appellant No. 10 Mahabbat Ali, appellant No. 12 Lal Mia and appellant No. 16 Geda alias Samuz Ali and dismiss the appeals of all others. We also see no reason to alter the sentences as imposed by the learned Sessions Judge having regard to the fact that the sentence of 10 years and 8 years rigorous have been made on the ground of age of the respective appellants. We set aside the convictions and sentences of the three above‑mentioned appellants viz. Mahabbat Ali, Lal Mia and Geda. Before concluding we feel inclined to observe that both Mr. Abdul Hamid, the learned counsel for the defence as also Mr. A. Hakim, the learned Deputy Legal Remembrancer have been of great assistance to us. We have also been greatly helped by the careful and eleborate judgment of the trial Judge Mr. Mafizul Haque. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Order accordingly.