JUDGMENT

Sinha, J. - In the District of Farrukhabad there is a family of which the founder was a man Thamman Singh. Thamman Singh had three sons, Ulfat Rai, Hukum Singh and Shyam Lal. Hukum Singh has two sons, Harish Chandra and Sita Ram. Shyam Lal's son is Hirdey Ram. Of these Harish Chandra and Hirdey Ram were convicted u/s 20 of the Arms Act, and sentenced to a term of rigorous imprisonment for five years. Both have come before me in appeal. Hirdey Ram's appeal is No. 676 of 1944, that of Harish Chandra is No. 677. The judgment of the learned Assistant Sessions Judge bears an even date in both the cases, namely, 31st July 1944. On 13th October 1942, a man named Hazari Lal was murdered. It was alleged that some dacoits had gone to the house of the deceased and demanded money for political activities. It might be mentioned that that was the time when the place was seething with political discontent and the scene of murder was in a ferment. On 2nd January 1943 Hirdey Ram was arrested and his house was searched. Nothing incriminating was found and he was let off on bail on 3rd January 1943. On 8th January 1943, Hirdey Nath, a student aged 15 or 16 years was arrested and on 21st January he was granted pardon and he turned an approver. He made an elaborate confession which led up, among other things, to the re-arrest of Hirdey Ram and the arrest of Harish Chandra and Nitya Ram on 24th January 1943. On 30th January 1943, Harish Chandra and Hirdey Ram are alleged to have made some confession before the Deputy Superintendent of Police and the kotwal who brought the matter to the notice of the Superintendent of Police. The confession was to the effect that they had, in their possession, unlicensed arms and that they would deliver the same at their village Barjhala. The Kotwal, Thakur Rampal Singh and the Deputy Superintendent of Police, Rai Sahib Pt. Shiva Shankar Dube were ordered by the Superintendent of Police to go to the village Barjhala and take delivery of the arms. On 81st January 1943 these two officers started in the early morning with Harish Chandra, Hirdey Ram and Nitya Ram and reached Barjhala after a few hours and there Harish Chandra took out a fountain-pen pistol, Ex. 1 and a revolver, Ex. 2 from out of a stack of wood in front of his house and by the side of the lemon grove. Hirdey Ram also handed over a stick gun from a place inside his lemon grove. Nitya Nand made no such confession and nothing further was done against him. He may, therefore, be dismissed from consideration. The prosecution has examined Hirdey Nath, the approver in the Hazari Lal murder case as also the kotwal and the Deputy Superintendent of Police. It has also examined two witnesses, Sita Ram and Eambharosey as persons in whose presence the delivery was made by Hirdey Ram and Harish Chandra of the articles which formed the subject of the charge.

2. The defence was that Ulfat Rai was a respectable man of the village. He had a licence for arms. At the time of the disturbances when collective fines were imposed upon the whole village he was the solitary exception. This roused the jealousy, rather the enmity of the other inhabitants of the village and it is they who are at the bottom of the prosecution. The learned Assistant Sessions Judge has found that the witnesses for the prosecution told the truth, on the other hand, the witnesses for the defence did not inspire his confidence. H6 has, therefore, accepted the prosecution case and passed the sentence already mentioned. I must at the outset say that, I am vis-a-vis the approver in a slightly different position from that of the learned Assistant Sessions Judge. He held that:

He is not a liar and that his statement is believable. Being a boy he had to yield in cross-examination and give confusing answers.

3. I have before me a judgment of this Court in Criminal Appeal No. 238 of 1944 which arose out of the murder of Hazari Lal. Two learned Judges of this Court have distinctly disbelieved the confession