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Criminal Appeal No. 59'of 1954, decided on 16th December 1954.

(On appeal from the judgment and order of the High Court of Judicature at Dacca, in East Bengal, dated the 14th June 1954, in Government Criminal Appeal No. 3 of 1953).

S. 400‑Dacoity‑Corroboration of approver's evidence inadequate‑Conviction set aside.

D. C. Roy, Senior Advocate Federal Court (A. S. Choudhury, Advocate Federal Court with him) instructed by Ahmad Sohhan, Attorney for Appellants.

A. K. M. Baquer, Advocate‑General East Bengal (Sayed A. Ghani, Advocate Federal Court with him) instructed by Abdul Hye Choudhury, Attorney for Respondent.

Date of hearing : 16th December 1954.

‑This is an appeal by special leave, from a judgment of the High Court of Dacca by which 14 persons including the 3 appellants, Dalil‑ur‑Rahman Chowdhury and his two sons, Raja Meah and Nurul Huda, were on appeal by the Crown convicted under section 400 of the Penal Code. Originally, 45 persons were charged before Mr. M. G. Mowla, Additional Sessions Judge, being members of a gang of persons associated for the purpose of habitually committing dacoities. The learned Judge acquitted then all, but on appeal by the Crown against 33 of them 14 were found guilty by the High Court and sentenced, the appellants to seven and the others to five years imprisonment.

The allegation against the accused persons was that between March 1946 and October 1949, they were engaged in habitually committing dacoities in different places in the district of Chittagong and that they were therefore liable to be punished under section 400 of the Penal Code.

The foundation of the prosecution case was the evidence of the approver, Rashid Ahmed. This man was in the employment of a party opposed to Dalilur Rahman appellant and had, with another min of his employer's party, committed the murder of Siddiq Master, a relation of Dalilur Rahman appellant. While he was in custody in connection with that murder a fit of repentance overtook him, and he made a confession in which he gave a long list of dacoities which had been committed by a gang under the leadership of Dalilur Rahman. We do not know whether the approver confessed to that murder at his trial, but we are told that the case ended in a discharge. Apart from this fact which shows that originality the approver was in the service of a party opposed to Dalilur Rahman it was proved against him at the trial that he had named certain persons as having taken part in one of the dacoities who in fact were confined in jail on the day of that dacoity. Though firearms are alleged to have been used by the gang on an extensive scale in the commission of dacoities, no incriminating weapon was recovered from any one of them. Nor was any property or money traced to the possession of any one of the accused persons. Except in the case of one dacoity, there is no evidence that any one of the accused persons was identified by the victims or witnesses of a dacoity. Some cases of dacoities want to Court, but none of the persons accused in the present case was an accused in any one of those cases. In fact, one case ended in a conviction of two persons but they were not accused by the prosecution in the present case.

It was stated in the judgment of the High Court that the approver's evidence received corroboration from a large number of witnesses against each of the persons convicted, but as the nature of the corroborative evidence was not indicated we granted the appellants leave to appeal so that the question whether the evidence held to be corroborative was sufficient corroboration on the charge under section 400 might be examined. We have now gone through the evidence with the assistance of Mr. A. K. M. Baquer. Advocate‑General, who appeared in support of the conviction:, and Mr. D. C. Roy, who addressed us on behalf of the appellants, and have come to the conclusion that the evidence falls very much short of the kind of evidence that is needed to confirm an accomplice's testimony on a charge of the present character, The approver gives details of eleven dacoities in which be claims to have taken part and the evidence relied on in corroboration is the testimony of witnesses who say that they used to see some of the accused persons assemble at the farm house of Dalilur Rahman appellant or at the tea stalls, and that either on that very night or a few days later a dacoity used to be committed in places as far distant as 6 to 80 miles from the farm house. Only one dacoity is alleged to have been committed in the neighbourhood of that house. This evidence of association, even if believed, was wholly insufficient because it did not tend to show that the approver's statement that those dacoities were committed by the accused persons was true.

There is only one case in which the victim of a dacoity, Jogiridra Chandar Pal, made a statement which was recorded in the presence of highly respectable persons that among the dacoits he recognized Dalilur Rahman and his son. But curiously enough, for reasons best known to the authorities, that case was withheld from adjudication by a Court of law and Dalilur Rahman and his sons were not even prosecuted. In his statement the approver does not confess to have taken part in that dacoity, though he alleges that some other members of the gang told him that they were responsible for the dacoity. Having read the evidence and heard counsel on both sides, we take the view that the evidence in corroboration of the approver was quite inadequate and that the appellants should not have been convicted. We, therefore, accept the appeal, set aside the conviction and sentence of the three, appellants, and acquit them.

Appeal accepted.

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