1. In this case the tour appellants Nazim, Arabdi, Yasin anaTaimiz have been convicted by the Sessions Judge of Sylhet. He has found allthe men guilty under Sections 457 and 411 and has sentenced Nazim, inconsideration of his previous convictions, to 10 years rigorous imprisonment,and the others to three years, under the same section, and has passed nosentence under Section 411 of the Indian Penal Code. One of the Assessors foundthe case not established against the two appellants, Yasin and Tamiz.

2. The judgment of the learned Sessions Judge proceedslargely upon "confessions" since retracted, which he has used notonly against the makers, but also against the other accused in the case.

3. It is obvious that a retraced confession should carrypractically no weight as against a person other than the maker; it is not madeon oath, it is not tested by cross-examination, and its truth is denied by themaker himself, who has thus lied on one or other of the occasions. The veryfullest corroboration would be necessary in such a case, far more than would bedemanded for the sworn testimony of an accomplice on oath. In the present casethe Judge has acted upon these confessions without any indication that he hasappreciated this inherent weakness.

4. We will now consider the facts of the case. On the 23rdJuly 1900 the house of the complainant was broken into under circumstanceswhich amounted to an offence under Section 457 of the Indian Penal Code,Property was stolen, and upon information from one Abdul Ali, the appellantsand two other persons were arrested some time after the occurrence. Nazim andYasin made confessions, and there is the evidence of the wife of Nazim to theeffect that Nazim and Arabdi and Ors. went to commit theft and afterwardsdivided the spoil. There is also evidence that Tamiz gave up some buttons, whichwere part of the stolen property. As to the propriety of the conviction ofNazim, there can be no doubt his confession of the 11th October was repeated onthe 30th; and it was not withdrawn at the trial; it is marked by the SessionsJudge as put in evidence. It is to be noted that in the second statement heexculpated Yasin, saying he did not go to commit the theft, and the evidence ofhis wife does not inculpate Yasin. Even if the statement of Nazim was everformally put in evidence against Yasin, the latter certainly was not questionedin respect of it. It does appear, however, that on the 11th October Yasinadmitted before a Magistrate that he was one of the party of thieves, and thathe got Rs. 15 as his share, but that he had spent it. On the 30th October healleged that he had made the statement in fear of his life. This was,apparently, his first opportunity of retracting. His confession was by no meansfull of detail. The evidence on record does not show when the arrest was made,or how the appellant came to make a confession, when no property was found inhis possession.

5. As Nazim contradicts himself in respect of Yasin, and ashe also tried to minimize his own guilt by saying that he protested against theexpedition, the case against Yasin practically rests on his uncorroborated andretracted confession. This is not sufficient under the circumstances of thiscase to warrant his conviction.

6. Arabdi made no confession, but he was named by Yarchand,the wife of Nazim, as having advised the theft, and as having joined in it. Theaccusation by Nazim may be considered against him, if that statement was put inevidence against him, but as there is no allusion to it in the examination ofthis man it seems doubtful whether it was really put in evidence against him.At any rate, its evidential value would be of the slightest. The confession ofYasin must be discarded as against Arabdi. There is, however, the further factthat some of the stolen property was recovered from this man. His explanationof its possession is not satisfactory. He admits that he burnt a sack in whichthe buttons were kept and that he gave the buttons to Tamiz to dispose of, ashe was told that the possession of them might damage him. We do not doubt hisknowledge that the property was stolen, and his explanation is not sufficient.

7. Finally we have Tamiz. He did not confess, and said thatthe buttons were given to him by Arabdi, and that he hid them in some water,and gave them up to the police. Putting aside the mention of his name by Nazimand Yasin, it is sufficiently proved that he received the buttons with theknowledge that they were stolen property.

8. Then as to the punishment, Nazim has been sentenced toten years rigorous imprisonment, and the others to three years each. As in thecase of the appellants other than Nazim it is admittedly a first offence, thesentence in their case is too severe. Cases of this nature are constantlysettled by the Court of the Magistrate, and only in exceptional circumstancesdo they require a heavier sentence than a Magistrate is competent to inflict.While acquitting Yasin altogether, we would reduce the sentences upon Arabdiand Tamiz to two years rigorous imprisonment each.

9. But in regard to Nazim, who has admitted in his examinationin the Lower Court that he has been three times previously convicted, once in1889, twice in 1890, and once by the Sessions Court in 1894, when he wassentenced to six years, all the convictions being for theft or receiving stolenproperty, the case is on a different footing.

10. Now there is on the record no copy of any judgment, orextract from a judgment or any other documentary evidence of the fact of suchprevious convictions as is required by Section 91 of the Evidence Act, orSection 511 of the Criminal Procedure Code. There was thus no legal evidence tosupport the charge in respect of such previous convictions. The examination ofthe appellant in the Lower Court in respect of those convictions was alsowithout legal warrant or justification; see Section 342 of the CriminalProcedure Code, and the case of Basanta Kumar Ghattah v. Queen-Empress I. L. R.(1898) Cal. 49.

11. But on the Sessions record, pages 39 and 46, we have arecord of an admission by the appellant Nazim of the previous convictions dulyrecorded. Under Section 310 of the Criminal Procedure Code, the Judge wasjustified in proceeding to pass sentence on him accordingly. The irregularityin the inquiry is to be regretted, and should have been detected and remediedat the trial, but it does not appear that the accused was prejudiced by reasonof it.

12. As for the sentence on Nazim, he appears to beincorrigible. He can only very recently have been released from jail, and isagain in his evil ways. We dismiss his appeal.

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Yasin and Ors. vs.King-Emperor (04.01.1901 - CALHC)