Supreme Court: An appeal by special leave was filed against appellant’s conviction by the Bombay High Court (‘the High Court’) for an offence under Section 394 of the Penal Code, 1860 (‘IPC’) (corresponding Section 309(6) of Nyaya Sanhita, 2023 (‘BNS’)) reversing an acquittal by the Resident Magistrate, First Class, Bhusawal (‘the Trial Court’), on an appeal by the State. The 4-Judges Bench of Patanjali Sastri, CJ., S.R. Das, Ghulam Hasan, and B. Jagannadhadas*, JJ., held that where confession consisted of integrally connected parts, it could not be split to accept some particulars while rejecting others. The Supreme Court held that the High Court erred in relying on part of confession to convict appellant while rejecting other parts as appellant had retracted his confession at a very early stage.
Background
Appellant and complainant were agriculturists of nearby villages who had known each other for some time. The complainant went to appellant’s village with cash of Rs 2680 in currency notes for the purchase of cattle and stayed with appellant in his house waiting for a few days for an auction sale of cattle to be held on 19-03-1949. During the complainant’s stay, he was robbed of the cash that he had with him by appellant on the night of 19-3-1949, around 2 am, while he was sleeping in his house. Later, appellant denied the offence charged against him and that very night appellant’s brother and another person, went to the house of the Police Patil and informed him that appellant had sent them to report that thieves had beaten the complainant in appellant’s house and robbed him of his money. He went to appellant’s house and found the complainant with bleeding injuries on his head and mouth and with a duster tied round his head.
The complainant was unable to speak but made signs conveying his ideas. The Police Patil gathered information, recorded the same in FIR and filed a formal complaint which was taken up by the Sub-Inspector and investigated. Thereafter, the Police Patil questioned appellant, and he thereupon produced Rs 1980 in notes. Appellant was then arrested and during investigation was sent on 20-3-1949 to the Trial Court for his confession being recorded, which was recorded on 23-3-1949.
The complainant submitted that on the night of the occurrence, he had Rs 2385 in the inner pocket of his coat in currency notes, that appellant and himself after chatting with each other for some time in the courtyard retired into a neighbouring room and slept there. Later, appellant got up and sat on his chest, beat him with the fist and with a stone held in his hand over his head and mouth. Appellant thereupon took the coat and went inside the house by the inner door.
The Trial Court opined that the confession was not voluntary and accordingly rejected it. The Trial Court further opined that the defence was not palpably false, that the notes produced by appellant had not been made out beyond doubt to be the identical notes lost by the complainant and that they might have belonged to appellant himself. Thus, the Trial Court acquitted appellant. On appeal, the High Court agreed that the positive evidence that the appellant was the complainant’s assailant and robber was not true. The High Court did not accept that the confession was not voluntary but, however, recognized that in number of particulars, the confession was untrue, but considered that it could be taken as true to some extent. The High Court did not accept the defence that the money produced by appellant was his. Thus, it reversed the acquittal and convicted appellant.
Analysis, Law, and Decision
The Supreme Court stated that the confession was to be accepted in two particulars, namely, (1) it was appellant who had beaten the complainant, and (2) it was appellant who produced complainant’s money before the Police Patil. But it was to be rejected as untrue to the extent it stated that the money was not taken by appellant from the complainant but was given to him by the complainant. The Supreme Court opined that as far as this matter was concerned, the complainant’s evidence that it was taken from (and not given by him) was to be accepted.
The Supreme Court stated that the High Court did not appreciate that even so there was no proof that the beating was for the purpose of taking away the money and that one of the essential ingredients of robbery as defined in Section 390 of IPC (corresponding Sections 390(1), (2), and (3) of BNS) was lacking, unless the evidence of the complainant was to be accepted to this extent also. The Supreme Court further that this would be like acting on the very evidence of the complainant in the total rejection of which the High Court concurred with the Trial Court when it stated that “the case against the opponent rests therefore only upon the so-called confession of the opponent and upon his production of the money”.
The Supreme Court noted that counsel for appellant submitted that the High Court rejected the main prop of the prosecution case viz. the evidence of the complainant should not have acted upon the retracted confession of appellant. He urged that the alleged confession, being exculpatory, taken was not a confession at all and was, therefore, not admissible in evidence and having found a certain portion as untrue, it was not open to the High Court to act on the other portions.
The Supreme Court opined that it could not be maintained that a portion of a confessional statement if it consisted of integrally connected particulars, could be split up and that some of the said particulars could be accepted while others were rejected.
The Supreme Court noted that appellant stated in his confession that the complainant thrust the money into his waistband and produced it before the Police Patil. The High Court treated this as an admission by appellant that the money produced by him was that of appellant with the rider that the same was given to him by the complainant and to accept the former while rejecting the latter. The Supreme Court opined that this process was untenable and the portion of the confession which the High Court had acted upon was inadmissible as evidence that the money produced by appellant was the very money of which the complainant was robbed.
The Supreme Court stated that it was to be noticed that appellant retracted the confession at a very early stage and that in his examination under Section 342 of the Criminal Procedure Code, 1973 (corresponding Section 381 of the Nagarik Suraksha Sanhita, 2023) dated 13-06-1950, he stated that the money was his and he gave evidence at the trial in support of it, consisting mainly that the money was supplied by him to his son for doing business in cattle. The defence was corroborated by the prosecution evidence itself which showed that appellant was a person owning property and doing business in cattle, but this circumstance did not appear to have even been noticed by the High Court.
The Supreme Court opined that the High Court, in rejecting the defence, which was accepted by the Trial Court, had without adequate reason departed from the well-established rule that considerable weight was to be attached, especially in such cases, to the fact that the Trial Court had accepted the credibility of a particular witness before it. However, because the confession even to the extent used by the High Court was inadmissible in evidence and that the confession was the only substantial basis for the conviction by the High Court, the judgment appealed from could not be allowed to stand.
The Supreme Court noted that the sentence of one year’s imprisonment had already been served out during the pendency of this appeal and opined that appellant was however, entitled to a finding of acquittal and to restoration of the money which had been taken from him. The Supreme Court therefore allowed the appeal, acquitted appellant, and ordered that there would be an order directing that Rs 1980 produced by appellant and attached by the Police Patil and Rs 195 seized from his house on search be returned to him.
[Safdarkhan Meer Khan v. State of Bombay, (1953) 2 SCC 545, decided on 24-11-1953]
*Judgment authored by: Justice B. Jagannadhadas
Advocates who appeared in this case :
For the Appellant: S.B. Jathar, Advocate
For the Respondent: Porus A. Mehta, Advocate
Note: Retracted Confession
Retracted confession means a statement made by the accused before the commencement of the trial through which the accused admits the commission of the offence, but which he repudiates at the trial. As the confession is required to be clear, specific, and unambiguous, its retraction shall also not be ambiguous, vague, or imaginary. The person alleging retraction of confession, or his earlier inculpatory statement must satisfy the court that he had withdrawn from his statement at the earliest possible time and without any afterthought or advice and must give reasons for the same. Further, retracted confession cannot be made the sole basis of conviction unless it is corroborated, and it is unsafe to base the conviction of the accused upon his retracted confession even when it is held to be true and voluntary unless it is corroborated in material particulars by independent evidence.
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