Retracted confession of co-accused, not a sole ground for the conviction of the accused

Harshit Sharma | Amity Law School, Madhya Pradesh | 30th December 2019

Gopal Sarkar V/s. State of West Bengal., CRA No. 693/2017

FACTS OF THE CASE

1. The present case pertains to the incident of lethal dacoity that took place in the early
   hours of 14 th March 2015 at Convent School in Ranaghat, followed by commission of
   the brutal rape of the nuns of the convent school.
2. The appellant in the instant case, Gopal, was one of six persons convicted in a case
   concerning a 2015 robbery in a convent and the rape of a nun from the convent.
3. As per the complaint given by the Principal of the convent, the accused tied nuns of
   the convent, ransacked the place and stole jewellery. One of the men stood accused of
   having raped a nun.
4. All six men had convened some days earlier at Gopal’s house to attend his niece’s
   marriage. One of the invitees, Milan, was also related to Gopal from his wife’s side.
   The five invitees were arrested following the marriage on account of their raucous
   conduct, but later released by the police. The crime was committed, following their
   release by the police.
5. Before the trial initiated, the confession was also being made by the present appellant
   and other co-accused also, which was retracted pleading not guilty with the initiation
   of the trial.
6. All six men were convicted for hatching the conspiracy to commit the dacoity by the
   trial court. An appeal challenging the same was filed by Gopal, who was convicted for
   the offence of harbouring the dacoits read with a criminal conspiracy charge u/s.
   212/216A of Indian Penal Code, 1860.
7. The appeal stands on the ground that the appellant had no knowledge that the persons
   he had harboured will commit, plan to commit or has committed any offence and the
   retracted confession of one cannot be said to be used to convict the other co-accused.

ISSUES RAISED

1. Whether the present case fulfils all the essential ingredients to constitute the offence
   u/s. 212/216A Indian Penal Code, 1860?
2. What is the effect of retracted confession of the co-accused in relation to other
   co0accused and whether it can be a sole ground to sustain conviction?

RULING OF THE COURT/ THE COURT HELD THAT

Hon’ble High Court of Calcutta allowed the appeal and set-aside the conviction & sentence imposed on the appellant, while observing the following:

1. The Court held that the retracted confession of a co-accused can, at best, be used as corroborative evidence, provided the other evidence on record, if believed, is
   sufficient to sustain a conviction. This, was in the light of the case of “Kashmira
   Singh Vs. State of M.P., where the Supreme Court held retracted confession of an
   accused is not substantive evidence against a co-accused and can only lend assurance to corroborate other evidence on record against the latter.”
2. Inter alia, the Bench had occasion to remark, the ingredients which are necessary to
   constitute the offence u/s. 212/216A,

“Mere association with the accused persons owing to family connection, in my opinion, cannot give rise to an inference of meeting of minds between the appellant on the one
hand and other accused persons on the other hand to commit the dacoity.” The Court proceeded to note that in order to attract the offence of harbouring dacoits
under Section 216, IPC, the accused must have knowledge that the person s/he is harbouring has either committed dacoity or is planning to commit dacoity.
The Court relied on the 1925 case of Emperor v Sunderdas to comment on the
extent of knowledge necessary to incriminate a person for harbouring dacoits, i.e. knowledge that the persons harboured intend to commit a particular act of dacoity.”

1. Furthermore, “in the present case there is no evidence with regard to knowledge of the appellant about the prior crimes allegedly committed by the other accused persons.
   One of the accused persons Milan is a relation of the appellant. The latter in his
   confessional statement has clearly explained that the appellant permitted Milan and his associates to stay at his residence in deference to such family tie … the conduct of the appellant in extending hospitality to Milan and his friends was neither unnatural nor opposed to normal human behaviour….”
2. “As the substantive evidence on record is too flimsy and unconvincing, conviction of
   the appellant cannot be founded on the retracted confession of a co- accused.
   Accordingly, I am of the opinion that the appellant was not a party to the conspiracy
   to commit dacoity at the convent and his conviction under section 120B IPC is liable
   to set aside.”