Barnabas Christian vs Emperor

Luby, J.—Barnabas Christian appeals against the judgment, dated 18th December 1933, of Babu B.M. Chatterji, Additional District Magistrate of Dhanbad with special powers u/s 30, Criminal P.C., whereby that officer convicted him u/s 395, Penal Code, and sentenced him to five years'' rigorous imprisonment and a fine of Rs. 50 in default rigorous imprisonment for three months more. The charge framed against Barnabas and six other men was that on 26th August 1933, at Mahalidih, P.S. Tundi, Z. Manbhum, they committed dacoity in the houses of Dinu Mandal and Tiku Mandal. Six of the accused were convicted, but only Barnabas has appealed. The proceedings were instituted on the basis of a "first information report" which was lodged by Dinu''s brother Nathu Mandal at the Tundi police station on 27th August at 1 p. m.

The police station is situated about 18 miles from the place of occurrence. Nathu stated that he had heard the dacoity going on, but was afraid to come out of his house until the dacoits had departed. He found Dinu lying injured. Dinu asked him to go to the police station and lodge information. Dinu did not mention the names of any dacoits to him, so the F.I.R. was lodged against "persons unknown, about 15 or 16 in number." When the Sub-Inspector reached the spot on 28th August in the evening, Dinu named some of the dacoits. It appears from the order sheet that Barnabas, Chandu Kol, Lachhu Kol and two other accused were arrested and taken to Dhanbad together on 30th August. On 2nd September, Chandu Kol and Lachhu Kol made confessions before a Sub-Deputy Magistrate.

At the trial the only witness who claimed to have seen Barnabas taking part in the dacoity was Dinu Mandal, who alleged that Barnabas had entered his hut with three others and assaulted him. Under cross-examination Dinu admitted that it was a dark night and that he did not come out of his room, but became unconscious after being assaulted inside his room. But he said that the dacoits had some lighted torches in the yard and some light entered the room when the door was broken, and he was thus enabled to recognize the dacoits with whom he was previously acquainted. The list of articles stolen (Ex. 4) shows that they were of trifling value. It is suggested that the dacoity was not committed for gain, but in order to satisfy a grudge against Dinu. Chandu and Lachhu in their confessions stated that the dacoity had been planned and led by Kinu Mandal of Mahalidih.

Kinu was not charged, but his son Gurua was placed on trial and acquitted. Dukhu Mandal, P.W.3, gave evidence about the enmity between Dinu and Kinu. And Tiku Mandal, P.W.5, deposed that there had been a land dispute between him and the accused, Chandu Kol. But there is no evidence to show that the appellant Barnabas was concerned in either of those disputes. Barnabas does not live in Mahalidih, but in a neighbouring village called Ghosaldih. Barnabas, when examined by the Court, made the following statement:

I have not seen the house of Dinu. 1 serve Mr. Miller from 10 to 5. Why should I commit dacoity?

The learned Magistrate has convicted Barnabas on the strength of Dinu''s evidence which he considers to have been sufficiently corroborated by the confessions of Chandu and Lachhu. Those confessions were retracted in Court, and have been subjected to criticism on other grounds also.. The law relating to the use of retracted confessions may be conveniently summarised as follows: (1) A confession which has been retracted must be viewed with suspicion. (2) But if it is considered to have been (1) a voluntary confession and (2) substantially true, it can be admitted into evidence and used against its maker. (3) And if it is considered to be such a confession as substantially implicates its maker in regard to the crime with which he and the co-accused are charged, it can be used also against the co-accused. (4) But even then it can carry no weight, except where it is substantially corroborated by good evidence from other sources. Applying these principles to the present case we find that the confessions must be viewed with suspicion, because they have been retracted. Another reason for suspecting them is that the Court Constable, who brought Chandu and Lachhu to the Sub Deputy Magistrate, was allowed to remain present while they were making their confession. This fact does not involve the total exclusion of the confessions from evidence, vide Section 26, Evidence Act, but it certainly detracts from their evidentiary value. And thirdly it cannot be said that the confessions implicate their makers as substantially as they implicate the other accused persons.

Chandu and Lachhu were careful to say that they remained outside Dinu''s house while the others entered and committed the dacoity. In these circumstances it is doubtful whether these confessions could carry any weight as against any of the accused except Chandu and Lachhu. As regards Barnabas, appellant, there is not even room for doubt. The confession can carry no weight as against Barnabas, because Barnabas''s name is not mentioned in either confession. Lachhu Kol mentioned "two Christians" as having taken part in the dacoity, but did not give their names. Chandu named Budhu, Christian and Baraigan, Christian, but there is nothing to show that Baraigan is another name for Barnabas. It is true that at a test identification held on 15th September, Chandu and Lachhu pointed out Barnabas in jail as one of the dacoits. But no importance can be attached to this, because Barnabas was taken to Dhanbad along with Chandu and Lachhu, so they must have known that he was suspected of having taken part in the dacoity.

We are therefore left with the uncorroborated statement of Dinu Mandal. It has not been suggested that Dinu has any reason for accusing Barnabas falsely. But the possibility remains that he may have accused him wrongly by mistake. Eminent psychiatrists tell us that after a man has been rendered unconscious by a blow, he may on recovering his senses be in an abnormal state of mind (which they call "altered consciousness) though appearing to be in a normal condition. While suffering from altered consciousness, the patient may have no recollection of what happened just before he received the blow or he may "remember" things that never happened at all. And he may be peculiarly susceptible to suggestion.

It is not quite clear from the evidence whether Dinu was rendered totally unconscious or not. He stated in examination in chief that he became unconscious and did not see what further mischief the dacoits did or what things they removed. But under cross-examination he said: "I did not become wholly senseless." Nathu deposed that he found Dinu injured, but able to talk; he asked Dinu whether he had recognized any of the dacoits and Dinu said he would state everything to the daroga.

If Dinu had recognized some of the dacoits and was able to talk to Nathu, it is very strange that he did not give Nathu the names of the dacoits, whom he had recognized. If on the other hand Dinu had been rendered unconscious or semi-conscious by violence then there is the possibility that he has accused Barnabas wrongly, either on his own initiative or at the suggestion of Basanta Kumar Das, P.W.12, who is said to have had some conversation with Dinu just before the arrival of the Sub-Inspector. Basanta Kumar Das laid himself open to suspicion in this matter, because he said in examination in chief that the Sub-Inspector reached Dinu''s house before he did, and then contradicted that statement flatly under cross-examination.

In my opinion, the uncorroborated statement of Dinu is not sufficient to support the conviction of Barnabas on such a serious charge, especially when two defence witnesses have given Barnabas a good character, one of them being no less a person than Mr. Miller, the head of the Pokharia Mission. I would allow the appeal and set aside the conviction and sentence and acquit Barnabas, Christian u/s 395, Penal Code.

Mohamad Noor, J.

I agree.