EMPEROR Vs. THAKURDAS MALO

JUDGEMENT

(1.) This is a reference by the Assistant Sessions Judge of Khulna, recommending that the verdict of the jury should be set aside in a case in which two accused persons were charged with dacoity under Section 395, Indian Penal Code. The jury were divided in the proportion of 3 to 2, the majority finding the accused guilty. The learned Judge is of opinion that this verdict is manifestly unreasonable, and that the accused ought to be acquitted. We have carefully examined the record for ourselves. We find that one important item of evidence upon which the prosecution relied, consisted of the retracted confession of one of the accused Thakurdas Malo. The evidence of P. W. 11, Maninaddin Ahmad, casts considerable doubt upon the receivability of this confession in evidence at all. This witness is the Head Master of a Madrassa, and he is also a member of the local Union Board. Speaking of an occasion immediately after the arrest of the accused, he stated as follows: There wag some talk between the Daroga and Thakurdas about getting confession from Thakurdas. The Daroga told Thakurdas that if he admitted the guilt he might be made an approver and be released of the charge. I too asked him to say what, he knew.

(2.) The learned Deputy Legal Remembrancer, on behalf of the Crown, has contended that in so far as the Magistrate who recorded this confession, was satisfied that it was voluntary and in so far as the learned Assistant Sessions Judge has admitted the confession in evidence, the confession should not now be excluded as evidence. We cannot accept this argument. Section 24, Evidence Act, is in these terms: A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

(3.) When a confession comes before us, either in appeal, or upon a reference under Section 307, Criminal P.C. or in any other manner, it is open to this Court to say whether the making of a confession appears, within the; meaning of Section 24, Evidence Act, to have been caused by any inducement, threat, etc., as contemplated by that section. Upon the evidence of a witness to whom we have just referred, we may say at once that it does appear to us that this confession falls within the mischief of Section 24, Evidence Act. It must, therefore, be excluded. The question which next arises is whether we should order a retrial of the accused persons upon the evidence which remains. The learned Assistant Sessions Judge has in his letter of reference, summarised the defects in that evidence We agree that the evidence is infirm for the reasons given by him. There is one other reason, to which he has not referred, why the evidence of the prosecution in support of the charge of dacoity should not be accepted. The case for the prosecution was that the two accused were recognized by three inmates of the house in which the dacoity was committed. These persons were p. W. 1 Madar Chandra Biswas, the complainant, p. W. 2 Kumudini Dasi, his wife, and. P.W. 5, Fulmala Dasi, his mother. All three of these witnesses say that they recognised the two accused persons in spite of the fact that these two persons had attempted to disguise themselves. They also say that the dacoits who entered the room tied the complainant as well as the two women up with strings. They further depose, that after the dacoits left, they shouted for assistance, whereupon a number of neighbours arrived on the scene. One would have expected that the first thing these neighbours would have done in common humanity, would have been to untie these three unfortunate people, yet the inmates as well as the neighbours maintain that no attempt whatever was made to release the complainant, his wife and his mother until after the arrival of the President of the Union Board, who, being sent for, came to the house sometime in the morning. It is the evidence of the President, that these persons were untied after he gave orders for their release. Apart from the fact that there is a good deal of discrepancy between the various witnesses as to the reason why the complainant and his womenfolk were not immediately untied, we consider that this evidence has the effect of introducing a considerable element of suspicion into the case for the prosecution. It seems to us, that one reason which might have induced the persons concerned to allow the inmates of the house to remain trussed up until the arrival of the President of the Union Board, was their anxiety to procure the evidence of the President of the Union Board to the fact that they had been tied up during the night.