JUDGMENT Braund, J. - This is an appeal by six Appellants from their respective convic tions by Mr. Ansari, the Second Additional Sessions Judge of Gorakhpur. They were charged before the learned Judge with committing a dacoity on the night of the 11th June, 1940, and were convicted by him. 2. The scene of the dacoity was at the house of a Bania called Bishnath at a village, Bara Makundpur. It appears that the Bania was bleeping outside his house with his father, Jaggi, and his nephew, Ram Brichh. The story is that in the middle of the night the house was attacked by a dozen or so dacoits who broke in and ransacked the place. Meanwhile, an alarm had been given and many of the villagers collected and put up a stout fight with their lathis. It is said that, in order that they might recognise the robbers, the villagers lit bundles of arhar sticks. The result of all this was that the dacoits were compelled to retreat, but on the way they, or some of them, broke into an adjoining house belonging to Sahdul Jolaha and took property from there also. That is a bare outline of what is said to have happened. The first information report reached the police station seven miles away on the next day at a little after 11 o'clock in the morning. It was a written document dictated by Bishnath to a village writer called Sita Ram and, obviously, had been carefully prepared. It was written during the early hours of the morning and then given to the chaukidar, Gorandhan Chamar to take to the police station. In all the circumstances, 1 do not think that it can be said that there was any undue delay. In the first information report the facts were set out and all the present Appellants, with the exception of the sixth, Basdhar, were named by Bishnath as persons whom he claimed to have recognised. He added, however, that there were others whom he would, or might, be able to recognise. He also gave a list of some of the villagers whom he said were among those that collected and would be able to give evidence. In addition he provided a list of the stolen property, but again qualified it by saying that it was not complete as it had been done in a hurry. He also gave a list of some of the villagers whom he said were among those that collected and would be able to give evidence. In addition he provided a list of the stolen property, but again qualified it by saying that it was not complete as it had been done in a hurry. All that is very reasonable and candidly I think that the first information report in this case is quite impressive. 3. Late in the evening of the 12th of June the Sub-Inspector from the police station came out and on the 14th the five men who were Damed in the first information report were all arrested. 4. Nothing then happened for nearly a month, until on the 12th of July the Appellant, Ghura, took it into his head to confess. Why, no one knows. All the usual formalities were gone through before a Magistrate and his confession was duly made. It is a very curious document, if only for the reason that it namas 17 or 18 people as having taken part in this dacoity and among then are not to be found the names of any of the persons whom Bishnath had mentioned in the first information report. There was, however, included among them the name of the Appellant, Basdhar. I may say at once that of these 17 or 18 people Basdhar alone was arrested and tried. That is a point which is very properly made use of by Mr. Saran to suggest that the confession is worthless I am inclined to agree that, as against any one but Ghura, the confession is absolutely worthless. It is a very fair inference to draw that, where a confessing accused has named 17 or 18 people of whom it was worthwhile for the police to arrest only one, there is something very wrong with the confession. At the same time, 1 think it right to point out that the absence from the confession of the names of the persons who had been denounced in the first information report is, in my view, strong evidence that the confession was at any rate not secured by pressure from the police. At the same time, 1 think it right to point out that the absence from the confession of the names of the persons who had been denounced in the first information report is, in my view, strong evidence that the confession was at any rate not secured by pressure from the police. For, I can imagine no sane Sub-Inspector, who set out to extort a confession from a prisoner in his keeping and who was aware that the first information report had a month earlier denounced five named persons, omitting to insist upon the confession containing those five names also. If the police had enough influence over the accused to compel him to confess, they would surely have had enough influence Over him to compel him to produce a confession which was consistent with the first information report. I have thought it right to say that in justice to the police in this case. The matter, however, is not very material because, except as against Ghura, who made it, I do not propose to pay the slightest attention to the confession. It was retracted by Ghura, but not before it had received substantial corroboration against himself by his having taken the police to his own village and discovered to them a place where there lay buried three items of property subsequently identified as coming from the burgled house. 5. The strength of this case rests on the actual evidence of those who say they saw what happened and identified the men engaged. I do not propose to go through the evidence in detail, because it is very long and is very consistent. It is given by the occupants of the house themselves, by the immediate neighbours and by those other villagers who live close by and had assembled when the alarm was given. It is sufficient to say that in the result nine witnesses claim to have recognised the Appellant, Ghura, four witnesses recognised Balli, three witnesses have denounced Bhuar, five witnesses have named Parag and seven witnesses say they saw Ganga. It is fair to state that no actual witnesses have named the Appellant, Basdhar, as apart from his having been subsequently identified. That is the effect of the evidence and, subject to the general observations which have been made in criticism of the evidence as a whole by Mr. It is fair to state that no actual witnesses have named the Appellant, Basdhar, as apart from his having been subsequently identified. That is the effect of the evidence and, subject to the general observations which have been made in criticism of the evidence as a whole by Mr. Saran, it affords, in my opinion, a very strong case against the first five Appellants. As against the sixth Appellant, Basdhar, the case is a little different, because, as I have already said, no actual witnesses have come into the witness-box to say that they knew him and saw him at the dacoity. But three witnesses did identify him subsequently at the police station. They are the witnesses, Ram Tapesar, Ramraj Lal and Gobri. In my view, subject again to the general comments that have been made, that evidence is amply sufficient to implicate the Appellant, Basdhar. The identifications were, I think, in every way properly held by the Magistrate and there is no ground for any adverse comment in that respect. 6. But Mr. Saran, who, if I may say so, has said everything that can properly be said on behalf of the Appellants, has made a number of quite reasonable comments upon the evidence as a whole with which in Reference to him I ought to deal. He first attacks the evidence of the lighting of the arhar sticks. He says that this is a convenient, if not necessary, fiction which has been introduced into the case in order to overcome in the mind of the Court the darkness of the night. Of couse, if we start with the assumption that the police have set themselves to concoct the case, that would be a possible theory. But the argument really bags the question, because it asks me to assume, before I start, that the case is a false one. As I so often point out in this Court, the whole basis of the administration of justice is to try to arrive at the truth by a scientific investigation of the evidence given and not by a series of ex-cathedra assumptions. If I may venture to make the comment, we are sometimes too apt in India to try cases on pure presumption and not on the evidence given. Here there is a mass of very positive and very definite evidence that the villagers did light arhar sticks. If I may venture to make the comment, we are sometimes too apt in India to try cases on pure presumption and not on the evidence given. Here there is a mass of very positive and very definite evidence that the villagers did light arhar sticks. Moreover, on the next day the investigating officer found traces of it. I cannot discard the whole of this evidence in favour of a prejudice--even suppose I had one--against the honesty of the police. There is a great deal both in judicial and police administration of which I do not approve, but, so long as the law remains, what it is, I cannot discard judicial methods. 7. Then Mr. Saran said that no dacoits possessed of their senses would commit a dacoity in a village within a few hundred yards of their own village and at a place where obviously they were well known. There is a good deal of common ense in this observation. I confess that it does seem to me an extremely stupid thing to do. But, again, I cannot allow that to overcome the clear evidence that in this case they did commit the dacoity. There is no knowing what human beings will do, They will sometimes do the most stupid things and I can only suppose in this case that these men were either induced, or else were so foolish, as to try, to commit this dacoity at a place where they must have been known. There is then a comment that in the lathi fight with the villagers, which admittedly took place, it is very curious that none of the Appellants received any injuries. I do not myself find much difficulty about that. I think the answer is to be found in the evidence of Ram Tapesar at page 52 of the record. He says: There were 10 to 12 dacoits. They had lathis and lights and a spear. Some of the dacoits were looting the house and bringing out property as the fight was going on. 8. What obviously happened was that only some of the dacoits were engaged in the fight, while others went on looting. It so happened that the present Appellants were among those that continued looting, because it has to be borne in mind that the present Appellants were not the only dacoits engaged. 8. What obviously happened was that only some of the dacoits were engaged in the fight, while others went on looting. It so happened that the present Appellants were among those that continued looting, because it has to be borne in mind that the present Appellants were not the only dacoits engaged. Nor do I find it very singular that in making their escape some one or more of the dacoits should have taken the opportunity of breaking open the next door house. That I think was a case of opportunism. Finally, I come to the explanation offered by the Appellants themselves which is that the only reason that they have been implicated in this matter is because that they are at logger-heads with the zamindar. They say--or rather it is the merest suggestion--that the police have prosecuted them at the instance of the zamindar because they are on unsatisfactory terms with him and that the witnesses against them have given evidence merely because they too are tenants of the zamindar and have been told to give it. There is not a syllable of evidence to support that and again I must point out that I am not free to act on mere suggestions where there is actual evidence available of quite a credible nature. 9. The learned Judge in this case has written a good and well-balanced judgment on which in all respects but one I have no comment to offer. There is, however, one respect in which I should desire to make some slight observation. The learned Judge at page 85 of the record says: It is true that the law gives the accused a right to reserve his statement for the Court of sessions, but if an accused person refuses to make any statement concerning the charge against him on the very first opportunity offered to him before a Court of law, his silence does raise a presumption against him. The presumption is no doubt rebuttable presumption, and if the accused is able to put in a satisfactory reason for his silence, the Court will not be justified in drawing any unfavourable inference from his silence. The presumption is no doubt rebuttable presumption, and if the accused is able to put in a satisfactory reason for his silence, the Court will not be justified in drawing any unfavourable inference from his silence. But in this case the accused have failed either to put in any satisfactory defence or to explain why they did not state anything before the lower Court concerning their enmity with their zamindar or with any of the prosecution witnesses 10. With respect to the learned Judge think that possibly goes too far and that it would be dangerous to allow it to pass. 11. In the case of King-Emperor v.U. Datnapala (1936) 14 Ran. 666: AIR 1937 Ran. 83 some years ago in which the question arose as to the significance to be attached to the silence of a suspected person when present at the recording of a dying declaration by which he was implicated, I had occasion to say this: I desire to say at once that, speaking for myself, I do not regard it as permissible to take that into account as a circumstance discrediting the Appellant's case, as subsequently put forward. I have the misfortune to take a somewhat different view to that of my learned brother upon the effect of the silence of the Appellant when U Wunthapala's dying deposition was made. The presence of a suspected person at the dying deposition is, as I conceive, a privilege accorded to him which does not impose upon him any obligation of challenging his accuser. It is, I think a fundamental principle of the greatest value that a person detained upon a criminal charge is entitled to remain silent until he pleads in Court. And, if the law allows him and recognises the privilege of silence, then I do not think that his exercise of it can, in any circumstances be allowed to prejudice his defence when he ultimately puts it forward at his trial. And, if the law allows him and recognises the privilege of silence, then I do not think that his exercise of it can, in any circumstances be allowed to prejudice his defence when he ultimately puts it forward at his trial. And, indeed, I have great difficulty, apart from the question of principle, in seeing that the silence of a person so situated as the Appellant on such an occasion can be in any way legitimate evidence of his guilt It is evidence of no more than the fact of silence itself and to attribute silence to guilt any more than (say) to hardness of hearing, mere stupidly or fright appears to me to be a speculation which, judicially speaking, is quite unwarranted. 12. Those observations of my own may perhaps go a little too far, but they were subject to the scrutiny of three learned Judges of the Rangoon High Court and, with some qualifications I think they were in principle approved. The learned Chief Justice said this at page 677 : The degree of weight to be attached to the silence of an accused person in such circumstances depends upon the nature of the case. Many factors must be taken into account in assessing it and no hard and fast rule can be laid down. Illustrations which may afford a guide can be found in the cases of Rex v. Feigenbaum (1919)1 K.B. 431; Rex v. Whitehead (1929) 1 K B 99 and Rex v. Tate (1908) 2 K.B. 680. Care must be taken in all cases not to put too high a value on the absence of an immediate denial unless the surrounding facts point unequivocally to the conclusion that any accused person, whether educated or ignorant, cautious or impulsive, voluble or taciturn, would have felt bound to make a reminder in view of the particular charge against him and in the particular circumstances prevailing when he was made aware of it. It is not permissible to arrive at an adverse verdict on the strength of opinions formed as to the conduct of an accused person; or to allow the silence of an accused person to supplement a case for the prose.ution which at the conclusion of the evidence heard on both sides is took weak to justify conviction Stephen Senevirante v. The King (1936) 41 C W N 65 : AIR 1936 P.C. 289 (Judgment of Lord Roche at page 78) 13. If however, the silence of the accused is to be regarded as an important point for the prosecution-- and in the case under review the Sessions Judge apparently so regarded it--then at the Sessions trial it is necessary by reason of Section 342 of the Criminal Procedure Code for the trial Court to put to the accused as part of the case for the Crown the fact that he remained silent, and to invite his explanation as to why he did so. The provisions of this section make it clear that this examination lakes place for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, Maung Hman v. King Emperor (1923) 1 Rang. 689 : AIR 1924 Ran 172 (2). 14. I have felt it right to digress to the extent because, in my view, the learned Judge, when he observes that the silence of an accused person raises, a presumption against him until he rebuts it, goes much too far and I think that it is a dangerous idea to leave uncontradicted, I think the truth is that the fact of silence may, with all the other circumstances of the case, be taken into account in a proper case; but, even then, only if it is clearly borne in mind that an accused person always has a right to remain silent if he wishes. And I desire to accept what has been said by the Rangoon High Court; namely that the silence of the accused must never be allowed to any degree to become a substiture for proof by the prosecution of its case. No presumption, I think, arises ipso facto from the silence of an accused person, as the learned Judge seems to supose. 15. For all these reasons, I think that this appeal must be dismissed. No presumption, I think, arises ipso facto from the silence of an accused person, as the learned Judge seems to supose. 15. For all these reasons, I think that this appeal must be dismissed. The sentences are six years But, having regard to all the circumstances, I cannot take any other view than that this was a deliberate dacoity and it seems that a sentence of six years' rigorous imprisonment, though severe, is no more than is deseirved.