The Gujarat High Court has reiterated that Statement of the co-accused or admission of the co-accused cannot be proved in evidence against the maker of it and it cannot be sole base to convict any person.
It also observed that the provisions of Sections 24-26 of the Evidence Act 'clearly' restrict the acceptance of such confession that are made or caused by inducement, threat, promise while referring to the charge against Accused persons.
The observation was made by a Bench comprising Justice BN Karia while hearing an application filed by the State authorities under Section 397 and 401 of CrPC, seeking to quash the order of acquittal passed the Sessions Court, discharging the accused for alleged offences under Section 413 and 120(B) of IPC.
It noted that the Respondent-accused had been roped in case relating to ornament theft, merely on the basis of a statement made a co-accused.
"Accused no.5 had disclosed the name of accused no.6-respondent no.1 herein that he had received the biscuit made from stolen from accused no.5. Except this incriminated statement of co-accused, nothing was brought on record against the accused no.6-respondent no.1 herein," it observed.
The Respondent/ Accused person was alleged to have been a purchaser of the stolen article (gold and silver ornaments). It was insisted that offences under Section 413 were 'serious in nature' which is why the offence is punishable by life imprisonment, as well. It was further averred that every goldsmith is duty bound to maintain purchase and sale records and in the absence of such records, 'there can be a very strong suspicion' about the knowledge on the part of the Respondent in purchasing silver and gold biscuits without any documentation. Hence, the quashment of the Sessions Court's order was sought.
The Applicant further contested that the Accused Nos 1-4 had committed theft by housing breaking while Accused Nos 5-6 were alleged to have received stolen property which was found in their possession during the investigation. The State claimed that Accused No. 4 got all the ornaments converted into a gold biscuit and the same was recovered from Respondent No. 6. However, the Bench pointed out that there was nothing on record to prove that Respondent No. 6 had mens rea or knowledge about the gold. There was no evidence to suggest the involvement of Respondent No. 6 in the offence committed by Respondent No. 1. Respondent No. 5 had disclosed that Respondent No. 6 had received the gold biscuit from him but barring this incriminating statement made by Respondent No. 5, no other incriminating evidence was shown.
Accordingly, Justice Karia emphasised that Section 25 of the Evidence Act provides that no confession made to the police can be proved as against the persons accused in the offence. Further Section 26 provides that no confession made by any person while in custody of the police can be proved as against the person unless made in the immediate presence of a Magistrate. These provisions of law were relied upon by the Trial Court while delivering the judgement.
Affirming the decision of the Trial Court, the Bench concluded that there was nothing on record to show that Respondent No. 6 was connected with the offence of theft. It was opined that the statement of the co-accused or admission of the co-accused cannot be the sole base to convict any person. The High Court denied to reverse the decision of the Trial Court.
Case Title: State Of Gujarat vs Ajaybhai Champaklal Champaneri
Citation: 2022 LiveLaw (Guj) 174