1957 Dacca 454 (PLP)

AKBAR, J.‑‑This is an appeal by four persons who have been convicted by the learned Assistant Sessions Judge, Noakhali One of them, namely, Israil alias Israfil, was convicted under sections 397/395, P. P. C., and sentenced to rigorous imprisonment for seven years. The other three, namely, Sultan son of Golaler Rahman, Ali Akbar, and Shamsul Huq, were convicted under section 395, P. P. C., and sentenced to rigorous imprisonment for five years each. A dacoity was committed on the night of 23rd February 1955, in the house of Benode Behari Basak at village Olipur within P. S. Feni. The dacoits numbering 11, who were armed with gun, pistol, revolver, lathis, etc., took away with them Rs. 1,218 in cash, gold ornaments worth R. 3,000 to 3,500 and various other articles after injuring Benode, his wife and his sister. On the next day, at 10‑30 a.m., a first information report was lodged at Feni police‑station. No dacoit was named in that first information report, but it was mentioned that the inmates of the house would be able to recognize the dacoits if they see them again. Shaikh Ahmed, the approver, was suspected at an early stage, and he was arrested on 5th March 1955. His confession was recorded by a Magistrate on 7th March 1955. Ultimately 12 accused were committed to the Court of Sessions to stand their trial. The defence of the accused was that there was no dacoity and that they were implicated in a false case at the instance of the police. They were tried by the Assistant Sessions Judge, Noakhali with the aid of assessors. All the four assessors found appellant Ali Akbar, Sultan, Shamsul Haq and one Bazlur Rauf who is not before us guilty under section 395, P. P. C. They also found appellant Israil alias Israfil guilty under section 397, P. P. C. Two of the assessors found accused Kala Mostafa guilty under section 397, P. P. C., and one of them also found accused Kanu guilty under section 395, P. P. C. The learned Assistant Sessions Judge was, however, unable to accept the opinion of the assessors regarding Bazlur Rauf. He therefore, convicted these four appellants as stated above. The conviction of these appellants rests on the evidence of the approver and a certain amount of corroborative evidence. Now, the approver's story is as follows: On 23rd February 1955, at about 9 p.m., when 11, persons named by him were lying in a bush to the north of Benode's house, Benode, his son and his servant returned to the house. As soon as they saw them, they attacked Benode. Some of the dacoits caught hold of him, but he after a struggle managed to escape from their clutches. Just then, the accused Israfil fired a gun at Benode. but the shot, instead of hitting Benode, a injured the left hand of accused Ali Akbar and a thumb of accused Shamsul Huq. Then, accused Sultan, son of Golaler Rahman, Kanu, Ebadullah and Kala Mostafa entered the house of Benode and brought out a tin suit‑case and other articles after breaking open the almirah and the wooden chest. The other persons, namely, Bazlur Rauf, Abdur Rashid, Israfil, and the approver guarded the house at the time of the dacoity. As people started coming, hearing the hue and cries of the inmates of the house, the dacoits left the house with their booty. While they where retreating, they met Benode on the northern bank of the tank lying to the west of his house. There accused Kanu struck him with an axe and he fell down in the water of the tank. The dacoits then went to a jungle near the house of Sultan, son of Golaler Rahman, Sultan then brought a scale from the house of a goldsmith and they then divided the booty. The approver got 5 tolas 5 annas of gold ornaments in his snare and Rs. 60 in cash. They then dispersed. On the next day, the approver took accused Shamsul Huq to Chittagong and through the help of accused Kamaluddin he was admitted in the General Hospital at Chittagong. The approver, through the help of Kamaluddin, was also able to sell his share of ornaments and that of Shamsul Huq to a goldsmith there. The principle of law relating the approver's evidence is well‑established. The testimony of the approver being tainted requires, as a rule, independent corroboration in material particulars, and the present case cannot be con sidered to be an exception to that rule. Mr. Talukdar, the learned Advocate for the appellants, has not challenged the factum of dacoity Mr. Talukdar has, however, contended that in this case there is no satisfactory general corrobora tion showing that the approver really participated in the crime. Mr. A. S. Choudhury, the learned Advocate for the State, relying on the decision in Fazal Dad v. The Crown (1), has argued that an accomplice, in so far as his own participation in the crime is concerned, may be believed by a Court, though there is no evidence to corroborate him on that point. In `Fazal Dad' case question No. 2 for consideration was: "Whether it is open to a Court to accept the evidence of an approver even if there be no corroborative evidence against himself?" His Lordship the Chief Justice, while dealing with ques tion No. 2, observed: "As regards the second question which was permitted to be raised in appeal, the rule is not that where an approver gives evidence a sort of preliminary issue has to be tried by the Court which is called upon to judge his evidence, whether he is or is not proved by the other evidence to have taken part in the offence, and if the issue be answered in the negative, not at all to consider the case against the accused persons. The evidence of an accomplice has to be considered as a whole and though the Court starts with the initial presumption against his trustworthiness it may accept his testimony if it is corroborated in material parti culars. This rule that insists on corroboration does not A require that corroboration must be on all the particulars of the story, nor that there must be corroboration on that part of the story of the accomplice in which he implicates himself. If the independent evidence produced in corrobo ration tends to show that the person named by him were parties to the commission of the offence charged, the Court is entitled to accept his evidence even though there be no corroboration against the accomplice himself. In the present case, there was independent evidence which tended to confirm the approvers testimony that the accused had taken part in the offence charged. This was sufficient corroboration, and it was not at all necessary that the prosecution should have produced some independent evi dence proving that the approver himself took part in the offence." In view of the above observations, it is not necessary for us to see whether there was general corroboration of approver's story implicating himself in the dacoity. We may, however, observe that the approver has made a detailed statement about the manner in which the dacoity was planned and carried out. We also find that he stood the lengthy and searching cross‑examination very well. On a perusal of his evidence we are satisfied that he participated in the dacoity. We may also mention that the recovery of certain incriminat ing articles such as bizlaks etc., pursuant to the confession of the approver, from a bush at Farahadnagar also proves that he participated in the dacoity. Mr. Talukdar has, however, asked us to disbelieve the evidence of the approver, because of certain discrepancies between his evidence in Court and the confession before the Magistrate. He has drawn our attention to the following namely, that the approver did not say in his confession (a) that before the dacoity the dacoits had met at ldd Khola, (b) that Israfil carried a gun, and (c) that after dacoity Israfil carried a suit‑case from the house of Benode. Mr. A. S. Choudhury has contended that the defence, while cross -examining the approver, did not confront him with the alleged discrepancies, and hence he is not entitled to refer to them. In any event, from the fact that the approver did not give some of the minor details in his confession, it cannot be said that he was concocting a story and that he did not participate in the dacoity. Hence, we are unable to attach much importance to the above discrepancy. Now, the main question for consideration in this appeal is : whether the story of the approver is corrobo rated in material particulars connecting each of appellants with the crime. Israil alias Israfil: The approver has named all these four appellants. He was arrested on 11th March 1955. On the next day i.e., 12th March 1955 he took the police to a tank near Idd Khola at Daulatpur and brought out a tin suit‑case containing a cloth bag, shirt and a wrapper. A seizure list was prepared in the presence of witnesses. Benode has identified these articles as the stolen properties. Mr. Talukdar has contended that the police has foisted these articles on him in order to implicate him in this case. We have carefully examined the evidence of the search witnesses. The defence has failed to suggest any motive for the search witnesses to falsely implicate this accused. Beyond a mere denial this accused has given‑ no satisfactory explanation regarding these incriminating articles. In our opinion the story of the approver that this accused was among the dacoits is sufficiently corroborated by recovery of some of the stolen properties from him. Hence, we have no doubt as to his participation in the dacoity. Mr. Talukdar has next argued that the approver's story that he fired the gun at the time of dacoity has not been corroborated by any of the witnesses. He has, therefore, submitted that Israfil's conviction under section, 397, P. P. C. was not correct. The learned Counsel for the State has also failed to draw our attention to any corroborative evidence on this point. We, therefore, think that there is substance in this contention of Mr. Talukdar. No gun was recovered from this accused. The approver's story that he used the gun is not supported by anyone. Hence, we think it will not be safe to convict him under section 397, P. P. C. We shall, therefore, alter his conviction from sections 397 to 395, P. P. C. Sultan, son of Galaler Rahman: -‑This appellant was identified in the test identification parade by P. W. 8 Bisweswar Basak and P. W. 9 Gour Netai Basal. Bisweswar Basak, who resides in the house of Benode, said that at the time of dacoity he saw this accused guarding the house. Gour Netai, who lives close to Benode's house stated that when he proceeded to Benode's house, on hearing hue and cry, he saw the dacoits retreating and at that time he re cognised this accused. Mr. Talukdar has pointed out that the learned Judge has not relied on the identification of Bisweswar. He has, therefore, argued that it will not be safe to rely on the identification of Gour Netai alone. We, however, see no reason to doubt the identification by Gour Netai. We are satisfied from his evidence that he was in a position to recognize this appellant. Further, P. W. 25 Ali Meah's evidence shows that shortly after the dacoity this accused borrowed a scale from his house for weighing the stolen ornaments. Mr. Talukdar has asked us to disbelieve this witness, because he has enmity with Sultan. From his evidence, it appears that once his brother's cattle damaged Sultan's crop, but that matter was settled amicably. Hence we see no reason to doubt his story. In our opinion, the evidence of this witness as well as the evidence of identifica tion by Gour Netai sufficiently corroborates approver's story that he was among the dacoits. AU Akbar: ‑According to the approver, he received gun‑shot injuries on his left arm during the course of dacoity. He was arrested on 25th March 1955. On 29th March 1955 P. W. 7 Dr. Rafiqual Haq found the following injuries on his person: "(1) One irregular interrupted healed up injury 5 " x 1" on the outer aspect of the left arm and forearm. (2) On palpation of the healed up wound, there seems to be some foreign body in the wound surface." Then, after operation, the doctor removed two shots of smooth‑bore gun cartridges from the upper left forearm, The said shots were seized by the police. Further P. W, 3 Benode Behari Basak, P. W. 9 Gour Nitai Basak and P. W. 21, Nabin Chandra Basak have also identified him. In view of the overwhelming evidence against him Mr. Talukdar has found it difficult to say that the approver's story is not corroborated against this accused. There can be no question that he was among the dacoits. Shamsul Huq: ‑ The approver's story is that he also received a gun‑shot injury on his thumb at the time of dacoity. Approver accompanied him next day to Chittagong where he took admission in the General Hospital for treatment of the said injury, P. W. 6 Dr. Ahmadur Rahman has said that on 24th February 1955, when he examined him, he found the following injury "One lacerated crushed injury 2" x 1" x " on the posterior aspect of the left thumb." He was detained in the hospital for treatment from 24th February 1955 to 1st March 1955. It seems that the injury was not completely healed up and he left the hospital after executing a risk bond. The defence suggestion was that he had injured his thumb in a paddy‑husking mill. Mr. Talukdar has drawn out attention to the evidence of P. W. 18 Mafizur Rahman to show that in or about the time of the dacoity he was working in a husking mill at Khaira Bazar within P. S. Feni. If really he received this injury in the husking mill on 23rd February 1955, one fails to understand why he did not go straight to the doctors of Khaira Bazar or at Feni to get at least the first aid. In any event, this suggestion of the defence does not make us doubt the evidence of the approver. On the other hand, we think this injury on his thumb sufficiently corroborates the approver's story regarding his participation in the dacoity. The result is that we dismiss the appeal of Sultan, son of Golaler Rahman, Ali Akbar and Shamsul Huq. In the case of Israil alias Israfil, his conviction is altered from sections 397 to 395, P. P. C., and his sentence is reduced from seven years' rigorous imprisonment to five years rigorous imprisonment. With the above modification, his appeal is also dismissed. NANDI, J.‑

I agree. Z. A. S. Appeal dismissed.