JUDGMENT

Sulaiman, C.J. - This is an appeal by eight accused persons from an order convicting them u/s 395, Penal Code, and sentencing them to transportion for life.

2. So far as the facts relating to the commission of the dacoity itself are concerned, there cannot be much doubt. On the night between 24th and 25th May 1933, a gang of about 15 dacoits raided the house of one Brij Lal at about 1 a.m. His servant Sita Ram was sleeping immediately outside the door, while another servant Sher Ali was sleeping in his cart a few paces away. Another villager He sho was passing that way about that time. The dacoits seized both Sita Ram and Kesho and tied them both by their feet to Sita Ram's charpoy and threatened to kill them if they made any outcry. Sher Ali, who' was sleeping in the cart on the other side of the road and was not noticed by the dacoits escaped to the village and raised the alarm. The dacoits in the meanwhile got into the house and seized the inmates and obtained the keys of the boxes from them, opened the door and removed some properties. All the three inmates were maltreated badly and were tortured in order to disclose where valuables were kept. In particular Brij Lal, the owner of the house, was maltreated very cruelly; rags were tied round his arm, kerosine oil was poured over them and they were set fire to. While the dacoits were engaged in opening the boxes and searching the house and recovered about Rs. 40, Brij Lal found an opportunity to run away with his arm is till burning. Alarm having been raised some villagers came to the scene, but they arrived a little late and the dacoits had by that time bolted away. A report was made at the police station, which was a few miles off, at 6-30 a.m., that very morning and the police Sub-Inspector arrived to make the investigation. However it was not till 9th June that accused Ranjit Kahar was arrested and then on 24th June Anwar Ali was arrested who made a confession disclosing the names of the dacoits which led to the arrest of the other dacoits. Ahmad Khan's house was searched immediately after the confession of Anwar Ali and a revolver and sotne cartridges were found in the house. Other accused like Abdul Majid, Jamil Ahmad, etc., were arrested later still. Anwar Ali's confession referred to two other dacoities in addition to the one in question. Anwar Ali was offered a pardon and has made a statement as an approver in this case.

3. Against the accused there was not only the confession of Anwar Ali and also a retracted confession of the accused Jamil Ahmad but also the evidence of several eye-witnesses who claimed to have identified the accused. The accused in their defence produced very little evidence except Ahmad Khan who produced a number of witnesses to say that he was not arrested in the manner alleged by the prosecution but was brought straight from, the jail to the kotwali.

4. The learned Sessions Judge in summing up the charge to the Jury at the very outset warned the Jury that whatever had been said in the evidence about other dacoities had no relevancy. He emphasized that in considering the charge against the accused they had to exclude from, their mind anything which had been said about other dacoities and that they must not take any notice of the evidence that two of the accused had been tried in some other case and convicted and brought to the Court from Jail and further that they should not, take into account the fact that Jamil Ahmad accused was appearing in Court in convict's clothes. He then, discussed the evidence of the approver Anwar Ali and his previous confession. He rightly pointed out that it was the foundation of the case which had led to the naming, of some of the other accused and warned the Jury to consider carefully what value they would place upon it and pointed out that if it stood by itself it would be open to criticism that as he had been offered a pardon he would be ready to say anything. He also warned them to consider whether there wa