DUNGAR Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by seven persons who have been convicted and sentenced to 7 years rigorous imprisonment and a fine of Rs. 200 each under Section 457 of the Indian Penal Code. The Appellant No. 4, Ghasita, I am informed by the learned vakil for the appellants is dead. I have, therefore, considered the case of six of these appellants The facts are that the Collector of Bulandshahr was camping at Dadri and thieves entered the tent in which Mrs. Acton and four children were sleeping with property of considerable value. The thieves did not steal any of the jewels which were in cases in the same tent. No trace of the thieves could be found until the Sub-Inspector received some information that Dungar, the first appellant, was concerned in the theft; and he sent for Dungar, who made a confession before the Magistrate on the 27 November 1925.

(2.) Investigation followed, and 12 persons were sent up for trial before the learned Sessions Judge of Bulandshahr. Ten of them were charged under Section 457 and two under Section 457 read with Section 109. The learned Judge has, therefore, disbelieved a considerable portion of the elaborate confession, of Dungar. Even if he has not disbelieved it, he has declined to act on that confession. I have read the evidence and have heard the learned vakil appearing on behalf of the appellants and the learned Government Pleader. It has been proved clearly that the tent in which Mrs. Acton was sleeping was burgled early on the morning of the 21 November 1925. The only point for consideration is whether the conviction of the appellants can stand in view of the fact that the evidence against four of them is only the retracted confession of their co-accused Dungar.

(3.) A Bench of this Court in the case of. Kalwa V/s. Emperor has held that a criminal Court may make the presumption that an accomplice is unworthy of credit unless he is corroborated in material particulars; and where there was nothing in the case outside the confession of a co-accused pointing to his complicity in the crime of murder, the appellant must be acquitted. The case of Dungar is to my mind perfectly clear. He confessed to his complicity in the crime, and he admitted his confession in the Court of the committing Magistrate.