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Calcutta HC sets aside Conviction; Rules Conviction cannot be founded on the retracted confession of Co-accused

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On 14th March 2015, a group of people engaged in the looting and plundering of a convent school in Ranaghat as well as brutally raped one of the nuns in the convent. The principal of the Convent, also a prosecution Witness (P.W. 4) lodged a complaint with the police pertaining to the events that took place in the hours between 2 am and 4 am of 14th March. After the complaint was lodged, 6 miscreants were captured in the CCTV cameras placed in the premises of the school.

The appellant, Gopal was convicted under Sections 212 (Harbouring an offender) and 216A (Penalty for harbouring robbers/dacoits) of the Indian Penal Code (IPC). He was also convicted under the Section 120B (Punishment of Criminal Conspiracy). The others accused in the case were convicted under the Section 395 (Punishment for Dacoity); Section 376 (Punishment for Rape); Section 354 (Assault…to woman with intent to outrage her modesty) and 354A (…punishment for Sexual harassment).

Arguments of the Learned Counsel

Among the accused in the case, only the appellant Gopal Sarkar has appealed to the Court for a review of his sentence. The advocate, Mr Ayan Bhattacharya for the appellant makes the following arguments before the Court for showing lack of evidence to connect the appellant;

  • Only the appellant was not identified in the Test Identification (TI) Parade conducted by the police.
  • The CCTV footage is not able to place the appellant in the crime scene.
  • He was not identified by any of the witnesses, including the rape victim.
  • There was no fingerprint match with the samples recovered from the crime scene.

The prosecution argued that there is evidence of the accused committing multiple dacoities while staying at the appellant’s residence. Milan, one of the accused, was Gopal’s wife’s maternal uncle. According to the Investigating Officer, all the accused had assembled at the appellant’s house on the occasion of the marriage of his niece.

On the charges of criminal conspiracy under Sec 120B of IPC and harbouring dacoits under Sec 216A of IPC, the learned counsel points out the inconsistencies in the statements given by the prosecution witness (P.W) 11 and 12.

  • The statement was given by P.W 11, a neighbour of Gopal Sarkar is not able to identify the appellant in the spot where the accused persons discussed a ‘school in Ranaghat’ in a sugarcane field on 11th She also failed to identify Khaledur Rahaman, one of the convicted. Khaledur was the only one who placed Gopal at the place where the discussion of committing the act took place. The neighbour, however, witnessed Gopal serving meat to the accused persons.
  • W 12 who owns a betel leaf shop near the residence of the appellant corroborated that the Gopal served Milan and others with meat and liquor. However, the witness failed to corroborate listening to any conversation regarding a ‘school in Ranaghat’.

The confessional statement of the appellant mentioned that Milan was invited to Gopal’s niece’s marriage. Milan’s friends had come with him to the marriage. Gopal told the court that while he was busy in the procession of her niece leaving, the five accused were drinking in the sugarcane field.

Decision of the Court

The Court stated the Case of State vs Nalini where the Supreme Court ruled that “mere association with one of the principal offenders…cannot make a person a conspirator.” The assembly of all the accused in the house of the appellant was on the occasion of a wedding ceremony to which Milan was invited for being his wife’s uncle. The Court that stated that “mere association with the accused persons owing to family connection…cannot give rise to an inference of meeting of minds between the appellant….and other accused persons…”

Khaledur was the only one who had mentioned discussing the dacoity in his statement. Moreover, Khaledur had retracted the said statement during the course of the trial. In the case of Kashmira Singh vs. the State of M.P, the Supreme Court had held that the retracted confession against a co-accused can only be used to corroborate with other evidence on record. According to the Court, the quality of evidence presented by P.W 11 and P.W 12 is poor; proving uncertain whether the appellant was present during any conversation regarding the dacoity in the convent. Other evidence on record also did not inspire confidence according to the Court.

The Court upheld that

Conviction of the appellant cannot be founded on the retracted confession if a co-accused. Also, it is clear by the appellant’s statement that he allowed Milan others to stay at his residence due to Milan’s familial connection with his wife. It is not uncommon to extend hospitality to family and friends especially at the time of occasions like a marriage. Therefore, the Court stated that the prosecution was not able to prove the case beyond reasonable doubt and that the ‘the appellant is entitled to get an order of acquittal.

Thus, the conviction was set aside.

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