JUDGMENT
1. The six appellants Moyez Sardar, Fakira Pramanik, Fakaruddin Fakir, Jafar Pramanik, Lal Mahammud Shaikh and Misir Sheikh were tried along with two other persons named Nasir Mondal and Kefayetulla Mondal by the Sessions Judge of Pabna and Bogra with the assistance of a jury on a charge under Section 395, Indian Penal Code. The jury returned a unanimous verdict of not guilty as regards Nasir and Kefayetulla and guilty as regards the remaining six. The learned Judge agreeing with and accepting the verdict of the jury so far Nasir and Kefayetulla were concerned acquitted them. So far as the appellants Nos. 5 and 6 were concerned the learned Judge agreed with and accepted the verdict of the jury and convicted them under Section 395, Indian Penal Code and sentenced them each to undergo rigorous imprisonment for 5 years. As regards the appellants Nos. 1 to 4 the learned Judge did not think it necessary to express any disagreement with the verdict and accepting the same convicted them under Section 395, I.P.C. and sentenced them each to undergo rigorous imprisonment for four years. As rightly pointed out by the learned Sessions Judge the evidence as against the appellants consists of the retracted confession of Nasir and the evidence afforded by the result of the searches that were held in the houses of the different accused persons.
2. As regards the retracted confession of Nasir it is not necessary to refer to the portion of the learned Judge’s charge to the jury dealing with it in so far as it affects the maker of it, namely Nasir, for Nasir as has already been observed has been acquitted by the learned Judge and the Jury. In dealing with the evidentiary value of that confession as regards the other accused persona the learned Judge in the first place referred to Section 133 and illustration (b) to Section 114 of the Indian Evidence Act and observed that it is not safe to convict any one simply relying on the statement of an accomplice without material corroboration from other independent and reliable sources, but that at the same time a conviction based on the testimony of an accomplice is not illegal. This rule of law as pointed out by the learned Judge to the jury, so far as it goes, is a perfectly true rule. But it will be seen that it has got very little relevancy in the present case, inasmuch as there is no question of the testimony of an accomplice here. A retracted confession is not the testimony of an accomplice within the meaning of Section 133 of the Evidence Act. A confession made by one accused person affecting himself and others with whom he is jointly tried, may, under Section 30 of the Evidence Act, be taken into consideration as against the said others. This reference to the said sections therefore could only have the effect of creating a confusion in the minds of the jury. In proceeding to deal with this matter the learned Judge rightly observed towards the beginning of his charge that practically speaking a retracted confession has no value as against the other persons against whom it is directed. But then he did not stop there. He next pointed out to the jury the infirmities of the confession in order to enable them to determine whether the confession was free, voluntary and true; and then, he observed that if the jury thought it proper or safe to rely on the uncorroborated statement (meaning thereby the retracted confession), they could well hold that all the accused were concerned in the disputed dacoity. Thereafter the learned Judge dealt with the evidence relating to the searches and the finding of articles alleged to have been the proceeds of the dacoity, in the house of the different accused persons; and towards the close of his charge he emphasized the direction which he had already given with regard to the evidentiary value of a retracted confession as against the co-accused by saying that if, on the whole, the jury believed Nazir with or without corroboration and could find that there was a dacoity and that all the accused were concerned in the same they could well convict all of them under Section 395, Indian Penal Code. He went on further to observe that if they needed corroboration before relying on Nazir the corroboration need be about the existence of the dacoity as well as about the complicity of each of the accused; and lastly he observed again that the confession that was there went against each of the accused, if believed.
3. These directions in our opinion are clearly wrong. The law with regard to a retracted confession, or rather its evidentiary value when it is sought to be used as against a co-accused, is well settled so far as this Court is concerned. It has been laid down in a long series of cases of which it is necessary only to refer to the cases of Yasin v. Emperor (1901) 28 Cal. 689 and Emperor v. Lalit Mohan Chuckerbutty (1911) 38 Cal. 559, that a retracted confession should carry practically no weight as against the person other than the maker, because it is not made on oath, it is not tested by cross-examination and its truth is denied by the maker himself who has lied on one or other of the occasions and the very fullest corroboration would be necessary in such a case, far more than would be demanded for the sworn testimony of an accomplice on oath. The learned Judge’s direction therefore with regard to the evidentiary value of retracted confession that is sought to be used against the co-accused must be held to have been wrong. The conviction and sentence passed on the appellants based on a verdict obtained after such misdirection cannot possibly be sustained.
4. The second kind of evidence, to which reference has already been made, consists in the recovery of certain articles alleged to have been the proceeds of the dacoity from the houses of the different accused persons. “We have perused the summary of the evidence on this point as noted by the learned Sessions Judge in his charge to the jury. We agree with him that so far as the appellants Nos. 1 to 4 are concerned and with regard to the articles that were said to have been recovered from their houses the evidence of identification is certainly not strong and the evidence to use the word of the learned Judge, is rather of a weak character. As regards the articles alleged to have been recovered from the appellants Nos. 5 and 6 the evidence no doubt is somewhat stronger; but it will be seen that the evidence of identification with regard to those articles proceeds from the very same witnesses whose identification of the articles alleged to have been recovered from the first four appellants has not been considered satisfactory or convincing by the learned Judge as observed above. These witnesses are Asgar Ali, his wife Tarikannessa, his mother-in-law Osimannesa and his maternal aunt-in-law Moyjan Bewa.
5. We do not think that upon evidence of this character we should be justified in directing a further trial of the accused persons in this ease. We accordingly set aside the convictions of and the sentences passed on the appellants and direct that they be acquitted. Such of the appellants as may be on bail are now to be discharged from their bail bonds, and those who are in jail should be released forthwith.
