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Criminal Appeal No. 121 of 1948, decided on 3rd May, 1949 from the order of the Sessions Judge, Rajshahi, dated 6th May, 1948.

Ss. 114 and 133‑Charge under section 395 Penal Code‑Stolen property not recovered from accused‑Retracted 'confession of co‑accused and flimsy evidence of‑association‑Improper direction to jury‑Criminal Procedure Code (V of 1898). Ss. 289, 297‑Conviction set aside.

The proper direction to jury should be that unless the other evidence against the co‑accused will stand on its own legs and justify a conviction, the retracted confession should not be used in any way to support a conviction. Where the only evidence against the accused was some very flimsy evidence of association, there being no evidence to show that they were in any way concerned or that any stolen property was recovered from them; indeed apart from the fact that they were named in the retracted confession of a. co‑accused, there was nothing at all against them, the learned Sessions judge would have exercised a proper discretion had he told the jury that in law there was no evi dence on which they could find the appellants guilty.

49 C. W. N. 719 relied on.

Dinesh Chandra Roy, for Appellant.

S. Afzal, Deputy Legal Remembrancer, for Crown.

The two appellants, Nurul Fakir alias Nurul and Faiz Pramanik, were convicted tinder section 395, Indian Penal Code, and sentenced to rigorous imprisonment for 5 years each by the learned Sessions Judge of Rajshahi.

The, two appellants were placed on trial along with eight other persons on a charge of committing dacoity on 23rd May 1947, in the house of one Azer Ali Mridha. The jury returned, a unanimous verdict finding all the accused guilty and they were all convicted. They all appealed to this Court. The appeals of eight were summarily dismissed those of the two present appellants admitted.

Mr. D. C. Roy, appearing on behalf of the appellants before us has drawn our attention to grounds Nos. 2, 3 and 4 of the petition of his appeal and bases his case upon them.

Ground No. 2 recites:

"For that the learned judge having told the jury. The prosecution case practically rests upon the recovery of stolen articles from these accused persons but you have seen that no stolen articles were recovered from the accused Nurul Fakir and Faiz' should have under' section 289, Criminal Procedure Code, asked the jury to return a verdict of not guilty in favour of the said two accused appellants 1 and 4 and such non, direction has amounted to a serious misdirection which has affected the verdict against them."

Ground No. 3 is in the following terms :

"For that the learned judge seriously misdirected the jury, by telling them that the retracted confession has practically no evidentiary value against any co‑accused."

and Ground No. 4 runs:

"For that the learned judge should have told the jury that if the prosecution case cannot stand on its own legs, excepting Pashan Fakir who made the confession and subsequently retracted the same the, other accused persons could not be convicted on the retracted confession."

Mr. D. C. Roy has also drawn our attention to the decision of Haripada Gharami v. Emperor reported in 49 C. W. N. 719 a decision to which one of us was a party. It was there held that the proper direction should be that unless the other evidence against the co‑accused will stand on its own legs and justify a conviction, the retracted confession should not be used in any way to support a conviction. In the light of this dictum it is obvious the conviction of the two appellants cannot be sustained. The only evidence against them was some very flimsy evidence of association. There is no evidence to show that they were in any way concerned or that any stolen property was recovered from them. Indeed, apart from the fact that they were named in the retracted confession of a co‑accused, there was nothing at all against them.

In these circumstances the learned Sessions judge would have exercised a proper discretion had be told the jury that in law there was no evidence on which they could find these two appellants guilty.

The appeal is accordingly allowed. The convictions and sentences of the two appellants are set aside and we direct that they be set at liberty forthwith.

K. M. A. /A. H. Appeal allowed.

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