RAFEEQ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE above mentioned three revision-applications are directed against the judgment of the learned Additional Sessions Judge, Gangapur City, dated December 18, 1972, whereby he maintained the conviction and sentence of all the three applicants before me as awarded by the learned Additional Munsif Magistrate, Karauli.

(2.) THE facts which it is necessary to recall for the purposes of disposing of these petitions briefly stated are these-In-between the night of 23rd and 24th of March, 1971, two idols which were fitted in the 'chhatri' of Gopalji, of Keladevi and pictures of Keladevi and Madan Mohanji were stolen from Keladevi temple THE matter was reported in the police. In course of the investigation, accused Kherati alias Pappal gave information that he had given the idols to one Aziz the applicant before me and Rafeeq and Shabbir also gave informations to the police that the pictures were given by them to Aziz. On such information having been received by the police under sec. 27 of the Indian Evidence Act 4 pictures and one idol were recovered from the house of Aziz petitioner. Eventually, a case was challenged before the Additional Munsif Magistrate, Karauli. While Aziz was charged under sec. 411, Indian Penal Code, Rafeeq and Shabbir were accused of an offence under sec. 379, Indian Penal Code. When the charge was read out to Kherati alias Pappal he said that he had not broken open the lock. He, Rafeeq and Shabbir were together and they had stolen the 'murty' from outside. On a consideration of the evidence produced by the prosecution the learned Magistrate convicted Aziz under sec. 411, Indian Penal Code, and sentenced him to six months' rigorous imprisonment and Rafeeq and Shabbir under sec. 379, Indian Penal Code, and awarded to each one of them six months rigorous imprisonment. Pappal was also awarded six months rigorous imprisonment and, I am told, he preferred no appeal. Shabbir, Rafeeq and Aziz assailed the judgment of the learned Magistrate before the Additional Sessions Judge, Gangapur City who found no reason to interfere with the judgment. THEse persons are before me seeking a revision of the judgments of the courts below.

(3.) NO doubt, the question, in regard to the admissibility of a confession of a co-accused is interesting in its import and the judicial opinion is not uniform and one feels tempted to enter into this controversy but, I think, it is not necessary to examine it in detail in this case. The accepted position of law in regard to confession made by a co-accused is that it must be kept aside and if there is other evidence which needs strength by way of corroboration then the confession of a co-accused could be imported to lend strength. If any authority for this proposition is needed, reference may be made to Kashmera Singh vs. The State of Madhya Pradesh (3) and Haricharan Kurmi vs. State of Bihar (4 ). The reason for this rule seems to be well founded in jurisprudence when confessions of a co-accused right from the days of Roman law were not admissible. Under the common law also they are inadmissible. Even under the Indian Evidence Act applicable to Ceylon the statute forbids its admissibility. In India, however, confession of a co-accused has been made admissible subject to certain conditions laid down in sec. 30 of the Indian Evidence Act. Such evidence basically comes from a tainted source which is not available for being tested by cross examination. The only factor which lends reliability is that ordinarily no one inculpates himself unless he treads the path of truth and self-inculpation provides it a comparative reliability and, therefore, admissibility. It is not necessary to look into this evidence of a co-accused's confession unless there is some evidence which stands in need of corroboration.