JUDGMENT

Abdul Rashid, J. - A dacoity was committed on the Rohtak-Jhajjar road on or about 24th April 1931, in which Asghar Ali was robbed of Rs. 90 and his companions, Jumman and Azim, lost their turbans. The turban which was removed from the head of Jumman by the dacoits belonged to Umrao Ali, chaukidar, who was staying with Jumman as his guest. Three persons, namely, Shibdhan, Pahlada and Kalia ware convicted under Section 395, Penal Code, for having participated in this dacoity. Dip Chand turned an approver. One of the dacoits was an absconder. The appeals of Shibdhan, Pahlada and Kalia were dismissed by this Court on 21st June 1933.

2. Dip Chand has now been convicted under Section 397, Penal Code, and sentenced to seven years' rigorous imprisonment for having participated in the dacoity referred to above. The first question for determination is whether Dip Chand has forfeited his pardon, by giving false evidence and thus not complying with the conditions on which the tender of pardon was made.

3. It is alleged by the prosecution that Dip Chand identified a pagri belonging to Jumman in the Court of the Committing Magistrate, and stated that the pagri had been removed by Shibdhan from the head of Jumman; while in the Court of the Assistant Sessions Judge he failed to identify this pagri. The statement of Dip Chand, approver with respect to this pagri, in the trial is in the following words.

4. The red cloth now shown to me in Court as P/3 is one of the safas we stole but I cannot say anything about the black one.

Q. If you look at the safa you will see that the red cloth you have indentifled is only one of the two ends which are coloured red and that the black cloth, which you do not identify, is the middle part of the same turban. Was there any such turban as this among the two you stole?

A. No, there was a red turban similar in colour to the red cloth I have identified. The purport of my statement in the Court of the Committing Magistrate was that I identified the red cloth on the pagri as shown to me there as being similar to the pagri we stole, and not that the pagri itself was the identical one we stole.

4. In my opinion there is no real contradiction between the statements of Dip Chand before the Committing Magistrate and at the trial. It may be that he over-stated the case before the Committing Magistrate by deposing definitely that he was in a position to identify the pagri that Shibdhan had removed from the bead of Jumman, while before the Assistant Sessions Judge be was not prepared to go to the same length. It cannot be said that in this respect Dip Chand deliberately gave false evidence in order to spoil the case of the prosecution.

5. During the course of a lengthy cross-examination a question was asked from "Dip Chand as to whether any turban had been shown to him for identification in connection with this dacoity and he answered in the negative. The Assistant Sessions Judge remarked in his judgment that "his evidence here is distinctly disingenuous and hardly meeds discussion." In the appeal to this

6. Court the prosecution relied--and rightly relied--on the evidence of Jumman and Umrao Ali regarding the identification of this turban. Umrao Ali was the owner of the turban and Jumman was the person who was wearing the turban at the time of the dacoity. The fact that the approver identified the turban as belonging to Jumman was not a material portion of his testimony, as the best evidence of the identity of the turban was that of the owner thereof and of the person who was wearing the turban at the time of the dacoity.

7. After perusing the statements of the approver before the Committing Magistrate and before the Assistant. Sessions Judge, I am of the opinion that both the statements are substantially true and that the approver cannot be held to have forfeited his pardon owing to the trifling discrepancy referred to above. It cannot be said that in the circumstances of this case the appellant made any alteration in the