BADAN ALI Vs. EMPEROR

JUDGEMENT

(1.) In this case a number of persons convicted of taking part in a dacoity and conspiring to take part in the dacoity were convicted under Section 395 of the Indian Penal Code and Section 395 read with Section 120-B of the same Code. They were convicted before the Sessions Judge and a jury at Chittugong. In all, 20 persons were charged and a number of them, 17 were convicted. Four of them have not appealed against their convictions and sentences and 13 of them have appealed. Those who have appealed are as follows: 1. Bakshu, 2. Abdul Sovan, 3. Ijjat Ali, 4. Makhalasar Rahman alias Bochaiya, 5. Ansur Ali, G. Ahmadar Rahaman, 7. Sona Mia, 8. Manirajjaman, 9. Badan Ali. 10. Abdul Latif choukidar, 11. Abdul Sobhan Serang, 12. Abdul Kader alias Rabijarbap and 13. Noa Mian.

(2.) Badan Ali was represented before us by Mr. Hamidul Huq Chowdhury. The rest wereunpresented. The Crown was represented by Mr. Bhattacharji.

(3.) The ground of the appeal as put, forward by Mr. Huq is that the charge to the jury by take Sessions Judge was not a proper charge in law. The passage objected to read as follows: I have told you, gentleman, that we have also on the record the confession of one of the accused persons, that is, of Bakshu Mia. At this stage I am screened only with the rules of law relating to the manner in which such confessional statement should be used. There is, firstly its use as against the maker, and secondly, as against his co-accused. In so far as you are concerned, the question which calls for attention is whether the confession is a true statement of facts and what value can be attached to it as a piece of evidence. It is no part of your duty to decide whether the confession was made voluntarily or, on the contrary, by reason of any inducement threat, promise or Police torture. It is for me to decide whether the confession was made voluntarily and once I have admitted it into evidence, no person here can urge before you that it was not voluntarily made. As I have said it is for you to examine the confession closely and carefully and to decide whether truth is to hi found in it. In this particular instance Bakshu has retracted; he has pleaded not guilty. Furthermore, in his statement before this Court he has set up an entirely different story. When such is the case, it is a rule of practice not to rely upon such a confession without corroboration end that corroboration must be in respect of material particulars. I have already addressed you, when dealing with the evidence of the approver, a to The corroboration necessary. By a substantive; rule of evidence, when more persons than one are tried jointly for the same offence and a confession made by one of them affecting himself and his co-accused in proved, you may take into consideration that confession not only as against the maker but as against those implicated by him. In this instance also gentlemen, around the substantive rule have grown up rules of caution and prudence. I have told you that even as against the maker a retracted confession requires corroboration. If you seek to use a retracted confession as against persons being tried jointly with the confessing accused, the fullest possible corroboration as to material particulars is necessary. You may take it that such a confession carried practically no weight. Once again I refer you to that portion of my address relating to the evidence of an approver and you will remember what. I stated as to the nature of corroboration.