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(1964) 6 SCR 623 : AIR 1964 SC 1184 : (1964) 52 ITR 443 : (1964) 2 Cri LJ
344

In the Supreme Court of India

(BEFORE P.B. GAJENDRAGADKAR, C.J. AND K.N. WANCHOO, K.C. DAS GUPTA, J.C. SHAH AND
N. RAJAGOPALA AYYANGAR, JJ.)

1. HARICHARAN KURMI (IN CRA No. 208 OF 1963)

2. JOGIA HAJAM (IN CRA No. 209 OF 1963) … Appellant;
Versus
STATE OF BIHAR (IN BOTH THE APPEALS) … Respondent.
Criminal Appeals Nos. 208 and 209 of 1963* , decided on February 3, 1964
Advocates who appeared in this case :
(In both the Appeals): T.V.R. Tatachari, Advocate (at State Expense), for the
Appellants;
D.P. Singh and R.N. Sachthey, Advocates, for the Respondent (In both the
Appeals).
The Judgment of the Court was delivered by
P.B. GAJENDRAGADKAR, C.J.— The two appellants Haricharan Kurmi and Jogia
Hajam were charged along with four other persons with having committed an offence
punishable under Section 396 of the Indian Penal Code, in that during the night
intervening 24th and 25th March, 1960, they committed dacoity in the house of
Deokinandan Jaiswal, and during the course of the said dacoity, they committed the
murder of Damyanti Devi, wife of the said Deokinandan Jaiswal. The names of the four
other accused persons are: Ram Bachan Ram, Jogender Singh, Ram Surat Choudhury
and Achheylal Choudhury. The learned Sessions Judge, Muzaffarpur, who tried the
case, found all the six accused persons guilty of the offence charged. He accordingly
convicted them of the said offence and sentenced them to suffer imprisonment for life.
2. This order of conviction and sentence was challenged by the said six accused
persons by preferring appeals before the Patna High Court. The High Court has held
that the learned trial Judge was right in convicting five of the six appellants because,
in its opinion, the evidence led by the prosecution proved the charge against them
beyond reasonable doubt. In regard to Jogender Singh, however, the High Court was
not inclined to agree with the conclusion of the trial Judge and gave benefit of doubt
to him. Pending the hearing of these appeals, a rule for the enhancement of sentence
was issued by the High Court against all the appellants. This rule has been discharged
in regard to Jogender Singh who has been acquitted, as well as Ram Bachan Ram,
Ram Surat Choudhury and Achheylal Choudhury, and the sentence of imprisonment
for life imposed on them by the trial Judge has been confirmed. In regard to the two
appellants, however, the High Court took the view that the ends of justice required
that the sentence of imprisonment for life imposed on them should be enhanced to
that of death. Accordingly the rule against them was made absolute and they have
been ordered to be hanged. It is against this order of conviction and sentence that the
present appeals have been brought before us by special leave; and the short question
of law which has been raised before us by Mr Tatachari is that the High Court has erred
in law in treating the confession made by the co-accused Ram Surat Choudhury
substantive evidence against them. This course adopted by the High Court in dealing
with the case of the appellants on the basis of confession made by the co-accused
person is, it is urged, inconsistent with the consensus of judicial opinion in regard to
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the true scope and effect of Section 30 of the Indian Evidence Act (hereinafter called
“the Act”).
3. These appeals were argued before a Division Bench of three learned Judges of
this Court and it was brought to the notice of the said Bench that in dealing with the
case of the appellants in the light of the confession made by a co-accused person, the
High Court had relied on the observations made by this Court in Ram Prakash v. State
of Punjab1 . Since these observations, prima facie, supported the view taken by the
Patna High Court, the Division Bench thought it necessary to refer this matter to a
larger Bench in order that the correctness of the said observations may be examined.
That is how these appeals have come before a Constitution Bench.
4. The facts leading to the prosecution of the appellants lie within a narrow
compass, and so far as the point which falls to be considered in the present appeals is
concerned, there is no dispute in respect of the said facts. Deokinandan Jaiswal is a
fairly wealthy businessman and lives in Village Dumarbana within the Police Station of
Bairgania in the District of Muzaffarpur. He has a house of his own. Achheylal and Ram
Bachan served under him as munims. Jogender Singh was Jaiswal's sepoy and Ram
Surat was his personal servant. The appellants are the co-villagers of Joginder Singh
who was one of the accused persons. It appears that on March 24, 1960, Jaiswal had
received Rs 15,000 in currency notes from his partner Nathmal Marwari in the
presence of his munims Achheylal and Ram Bachan; in fact, as the said amount was
handed over to Jaiswal in the form of different currency notes, Ram Bachan and
Achheylal were asked by him to count the said amount. The said amount was then put
in different bundles by Jaiswal and to it was added another amount Rs 2000 which he
took out from his iron safe. The two bundles were then put together in a bigger bundle
and to it was attached a slip containing his signature and date. According to Jaiswal,
he handed over the amount of Rs 17,000 thus put in two bundles to his wife Damyanti
Devi and in her turn, she put the said bundles into the iron safe which had been kept
at the first floor of the house in the room adjoining the bed-room. About this time,
some functions were organised by the Bharat Sevak Samaj in the village and Jaiswal
was the convener in regard to the said functions. Naturally, he had to attend to the
delegates who had come to the village for the said function. During the days of these
functions, Jaiswal used to return home by about 10 p.m., but on the night of March
24, 1960, the function went on late, and so, Jaiswal slept at the Dharamshala where
the function took place and did not return home. That is how Damyanti Devi was left
alone in the house on the first floor and her only companion was her child Mina about
3½ years old. Apparently, Damyanti Devi retired to her bed-room with her little child
and on the ground floor were sleeping three of the accused persons, Achheylal, Ram
Bachan and Jogender Singh. Ram Surat was on leave, so that out of the four servants
employed by Jaiswal, three were sleeping on the premises. Batahu the cook of the
family, was sleeping in a verandah attached to the motor garage.
5. Next day, Batahu was awakened by Achheylal who reported to him that the door
of the hall was open. Thereupon, Achheylal and this witness went on the first floor and
found that Damyanti Devi was lying dead in a pool of blood. There were cut injuries in
her neck which had presumably caused severe bleeding. The little girl Mina was fast
asleep. The bundles of currency notes had been removed by the miscreants who had
committed the murder of Damyanti Devi. Thereupon, word was sent to Jaiswal and on
his return to the house, steps were taken to report to the police station about the
commission of the offence; and that set the investigation machinery into operation. As
a result of the investigation, the six accused persons were put up for their trial for the
offence under Section 396 IPC. That, in brief, is the nature of the prosecution case.
6. The prosecution sought to prove its case against the six accused persons by
relying on the confessions made by three of them, the recovery of the stolen property
and discovery of bloodstained clothes in respect of the two appellants. There is no
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direct evidence to show how, when, and by whom the offence was committed. Besides
the confessions, the evidence on which the prosecution relies is circumstantial and it is
on this evidence that the case has been tried in the courts below. For our purpose in
the present appeals, it is unnecessary to refer to the details set out by the confessional
statements in regard to the commission of the offence and the part played by each
one of the accused persons.
7. Ram Surat, Achheylal and Ram Bachan made confessions and it has been held
by the High Court as well as the learned Sessions Judge that the charge against them
is proved. With the correctness or propriety of the conviction of these accused persons
we are not concerned in the present appeals. The only point to which reference must
be made at this stage is that there is a concurrent finding of the courts below that the
confession made by Ram Surat is voluntary and true. In fact, both the courts did not
feel any hesitation in taking the said confession into account against Ram Surat who
made the said confession and convicting him on the said confession read in the light of
other evidence adduced against him. The charge against two appellants has been
sought to be proved by the prosecution by the statements contained in the
confessions made by the three accused persons and certain other discoveries, such as
bloodstained clothes with both of them and stains of blood in the house of the
appellant Haricharan. We will presently refer to this evidence. The High Court took the
view that having regard to the decision of this Court in the case of Ram Prakash1 it
was open to the High Court to consider the evidence supplied by the confessional
statements made by the co-accused persons and enquire whether the said evidence
received corroboration from any other evidence adduced by the prosecution.
Approaching the question from this point of view, the High Court came to the
conclusion that the bloodstains on the clothes found with both the appellants and
bloodstains found in the house of the appellant Haricharan afforded sufficient
corroboration to the conviction of Ram Surat, and so, it has confirmed the conviction of
the two appellants under Section 396 IPC
8. The High Court then considered the question about the sentence which should be
imposed on the two appellants. It appeared from the confession of Ram Surat as well
as the confessional statements of Achheylal and Ram Bachan that the two appellants
had played a major part in the commission of the offence. In fact, the injuries which
proved fatal are alleged by all the 3 accused persons who confessed to have been
caused by the two appellants. It is in the light of these statements that the High Court
was persuaded to enhance the sentence imposed by the trial Judge against the
appellants and it has directed that instead of imprisonment for life, the sentence of
death ought to be imposed on them. That is how the only question which calls for our
decision in the present appeals is: is the approach adopted by the High Court justified
by the provisions of Section 30 of the Act as it has been consistently interpreted by
judicial decisions for more than half a century?
9. Before we address ourselves to this question of law, we may briefly indicate the
nature of the other evidence on which the prosecution relies against the appellants.
The appellants were arrested the next day after the commission of the offence on the
report made by Jaiswal that he suspected that the murder of his wife had been
committed by his four employees and their accomplices, the two appellants before us.
On March 26, 1960, at about 3.30 p.m. the investigation officer visited the lane
between the southern wall of Jaiswal's godown and the northern wall of the east-facing
room of the appellant Haricharan and found some bloodstains in the lane and on the
walls of the grain godown. Later, a shirt bearing bloodstains was also found. Pieces of
earth containing bloodstains and the shirt were subsequently sent to the Chemical
Analyser. The origin of the blood found on the pieces of earth sent to the Chemical
Analyser could not be determined by him, but the stains of blood on the shirt which
was seized from the person of the appellant Haricharan were found to have traces of
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human blood. Similarly, the nails of Haricharan's hands showed traces of blood and
they were got cut by a barber and sent to the Chemical Analyser. The report shows
that these bloodstains were too small for serological test. The High Court thought that
“the presence of human blood on the shirt which Haricharan was wearing, his nails and
at several places beginning from the lane leading to his house and on so many
materials kept in his house is a factor” which had to be taken into account. These
discoveries were made about 8 a.m. following the night of the murder.
10. In regard to the appellant Jogia, a red-coloured check Gamcha which bore blood
-like stains was recovered from the top of the earthern granary in his house at about 6
a.m. on 27-3-1960. This Gamcha was sent to the Chemical Analyser and it is reported
to bear stains of human blood. It may be added that when the house of Jogia was
searched on March 26, 1960 this gamcha was not found. As we have just indicated,
the judgment of the High Court shows that it took the view that the confessional
statement by the co-accused persons of the appellants, particularly Ram Surat was
corroborated by the discovery of bloodstains and that justified the conviction of the
appellants under Section 396 of the Indian Penal Code.
11. The question about the part which a confession made by a co-accused person
can play in a criminal trial, has to be determined in the light of the provisions of
Section 30 of the Act. Section 30 provides that when more persons than one are being
tried jointly for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the Court may take into
consideration such confession as against such other person as well as against the
person who makes such confession. The basis on which this provision is found is that if
a person makes a confession implicating himself, that may suggest that the maker of
the confession is speaking the truth. Normally, if a statement made by an accused
person is found to be voluntary and it amounts a confession in the sense that it
implicates the maker, it is not likely that the maker would implicate himself untruly,
and so Section 30 provides that such a confession may be taken into consideration
even against a co-accused who is being tried along with the maker of the confession.
There is no doubt that a confession made voluntarily by an accused person can be
used against the maker of the confession, though as a matter of prudence criminal
courts generally require some corroboration to the said confession particularly if it has
been retracted. With that aspect of the problem, however, we are not concerned in the
present appeals. When Section 30 provides that the confession of a co-accused may
be taken into consideration, what exactly is the scope and effect of such taking into
consideration, is precisely the problem which has been raised in the present appeals.
It is clear that the confession mentioned in Section 30 is not evidence under Section 3
of the Act. Section 3 defines “evidence” as meaning and including—
“(1) all statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called
oral evidence;
(2) all documents produced for the inspection of the court; such documents are
called documents are called documentary evidence.”
12. Technically construed, this definition will not apply to a confession. Part (1) of
the definition refers to oral statements which the court permits or requires to be made
before it; and clearly, a confession made by an accused person is not such a
statement; it is not made or permitted to be made before the court that tries the
criminal case. Part (2) of the definition refers to documents produced for the
inspection of the court; and a confession cannot be said to fall even under this part.
Even so, Section 30 provides that a confession may not be evidence as strictly defined
by Section 3 of the Act, it is an element which may be taken into consideration by the
criminal court and in that sense, it may be described as evidence in a non-techinical
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way. But it is significant that like other evidence which is produced before the court, it
is not obligatory on the court to take the confession into account. When evidence as
defined by the Act is produced before the court, it is the duty of the court to consider
that evidence. What weight should be attached to such evidence, is a matter in the
discretion of the court. But a court cannot say in respect of such evidence that it will
just not take that evidence into account. Such an approach can, however, be adopted
by the court in dealing with a confession, because Section 30 merely enables the court
to take the confession into account.
13. As we have already indicated, this question has been considered on several
occasions by judicial decisions and it has been consistently held that a confession
cannot be treated as evidence which is substantive evidence against a co-accused
person. In dealing with a criminal case where the prosecution relies upon the
confession of one accused person against another accused person, the proper approach
to adopt is to consider the other evidence against such an accused person, and if the
said evidence appears to be satisfactory and the court isinclined to hold that the said
evidence may sustain the charge framed against the said accused person, the court
turns to the confession with a view to assure itself that the conclusion which it is
inclined to draw from the other evidence is right. As was observed by Sir Lawrence
Jenkins in Emperor v. Lalit Mohan Chuckerburty2 a confession can only be used to
“lend assurance to other evidence against a co-accused”. In re Periyaswami Moopan3
Reilly. J., observed that the provision of Section 30 goes not further than this: “where
there is evidence against the co-accused sufficient, if believed, to support his
conviction, then the kind of confession described in Section 30 may be thrown into the
scale as an additional reason for believing that evidence”. In Bhuboni Sahu v. King4
the Privy Council has expressed the same view. Sir John Beaumont who spoke for the
Board, observed that “a confession of a co-accused is obviously evidence of a very
weak type. It does not indeed come within the definition of “evidence” contained in
Section 3 of the Evidence Act. It is not required to be given on oath, nor in the
presence of the accused, and it cannot be tested by cross-examination. It is a much
weaker type of evidence than the evidence of an approver, which is not subject to any
of those infirmities. Section 30, however, provides that the court may take the
confession into consideration and thereby, no doubt, makes it evidence on which the
court may act; but the section does not say that the confession is to amount to proof.
Clearly there must be other evidence. The confession is only one element in the
consideration of all the facts proved the case; it can be put into the scale and weighed
with the other evidence”. It would be noticed that as a result of the provisions
contained in Section 30, the confession has no doubt to be regarded as amounting to
evidence in a general way, because whatever is considered by the court is evidence;
circumstances which are considered by the court as well as probabilities do amount to
evidence in that generic sense. Thus, though confession may be regarded as evidence
in that generic sense because of the provisions of Section 30, the fact remains that it
is not evidence as defined by Section 3 of the Act. The result, therefore, is that in
dealing with a case against an accused person, the court cannot start with the
confession of a co-accused person; it must begin with other evidence adduced by the
prosecution and after it has formed its opinion with regard to the quality and effect of
the said evidence, then it is permissible to turn to the confession in order to receive
assurance to the conclusion of guilt which the judicial mind is about to reach on the
said other evidence. That, briefly stated, is the effect of the provisions contained in
Section 30. The same view has been expressed by this Court in Kashmira Singh v.
State of Madhya Pradesh5 where the decision of the Privy Council in Bhuboni Sahu
case4 has been cited with approval.
14. In appreciating the full effect of the provisions contained in Section 30, it may
be useful to refer to the position of the evidence given by an accomplice under Section
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133 of the Act. Section 133 provides that an accomplice shall be a competent witness
against an accused person; and that a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to
Section 114 of the Act brings out the legal position that an accomplice is unworthy of
credit, unless he is corroborated in material particulars. Reading these two provisions
together, it follows that though an accomplice is a competent witness, prudence
requires that his evidence should not be acted upon unless it is materially
corroborated; and that is the effect of judicial decisions dealing with this point. The
point of significance is that when the court deals with the evidence by an accomplice,
the court may treat the said evidence as substantive evidence and enquire whether it
is materially corroborated or not. The testimony of the accomplice is evidence under
Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a
tainted character and as such, is very weak; but, nevertheless, it is evidence and may
be acted upon, subject to the requirement which has now become virtually a part of
the law that it is corroborated in material particulars.
15. The statements contained in the confessions of the co-accused persons stand
on a different footing. In cases where such confessions are relied upon by the
prosecution against and accused person, the court cannot begin with the examination
of the said statements. The stage to consider the said confessional statements arrives
only after the other evidence is considered and found to be satisfactory. The difference
in the approach which the court has to adopt in dealing with these two types of
evidence is thus clear, well understood and well-established. It, however, appears that
in Ram Prakash case1 some observations have been made which do not seem to
recognise the distinction between the evidence of an accomplice and the statements
contained in the confession made by an accused person. “An examination of the
reported decisions of the various High Courts in India,” said Imam, J., who spoke for
the Court in that case, “indicates that the preponderance of opinion is in favour of the
view that the retracted confession of an accused person may be taken into
consideration against a co-accused by virtue of the provisions of Section 30 of the Act,
its value was extremely weak and there could be no conviction without the fullest and
strongest corroboration on material particulars”. The last portion of this observation
has been interpreted by the High Court in the present case as supporting the view that
like the evidence of an accomplice, a confessional statement of a co-accused person
can be acted upon if it is corroborated in material particulars. In our opinion, the
context in which the said observation was made by this Court shows that this Court
did not intend to lay down any such proposition. In fact, the other evidence against
the appellant Ram Prakash was of such a strong character that this Court agreed with
the conclusion of the High Court and held that the said evidence was satisfactory and
in that connection, the confessional statement of the co-accused person was
considered. We are, therefore, satisfied that the High Court was in error in this case in
taking the view that the decision in Ram Prakash1 was intended to strike a discordent
note from the well-ebtablished principles in regard to the admissibility and the effect
of confessional statements made by co-accused persons.
16. Considering the evidence from this point of view, we must first decide whether
the evidence other than the confessional statements of the co-accused persons,
particularly Ram Surat, on whose confession the High Court has substantially relied, is
satisfactory and tends to prove the prosecution case. It is only if the said evidence is
satisfactory and is treated as sufficient by us to hold the charge proved against the
two appellants, that an occasion may arise to seek for an assurance for our conclusion
from the said confession. Thus, considered, there can be no doubt that the evidence
about the discovery of bloodstains on which the prosecution relies is entirely
insufficient to justify the prosecution charge against both the appellants. In our
opinion, it is impossible to accede to the argument urged before us by Mr Singh that
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the said evidence can be said to prove the prosecution case. In fact, the judgment of
High Court shows that it made a finding against the appellants substantially because it
thought that the confession of the co-accused persons could be first considered and
the rest of the evidence could be treated as corroborating the said confessions. We
are, therefore, satisfied that the High Court was not right in confirming the conviction
of the two appellants under Section 396 of the Indian Penal Code.
17. It is true that the confession made by Ram Surat is a detailed statement and it
attributes to the two appellants a major part in the commission of the offence. It is
also true that the said confession has been found to be voluntary, and true so far as
the part played by Ram Surat himself is concerned, and so, it is not unlikely that the
confessional statement in regard to the part played by the two appellants may also be
true; and in that sense, the reading of the said confession may raise a serious
suspicion against the accused. But it is precisely in such cases that the true legal
approach must be adopted and suspicion, however grave, must not be allowed to take
the place of proof. As we have already indicated, it has been a recognised principle of
the administration of criminal law in this country for over half a century that the
confession of a co-accused person cannot be treated as substantive evidence and can
be pressed into service only when the court is inclined to accept other evidence and
feels the necessity of seeking for an assurance in support of its conclusion deducible
from the said evidence. In criminal trials, there is no scope for applying the principle
of moral conviction or grave suspicion. In criminal cases where the other evidence
adduced against an accused person is wholly unsatisfactory and the prosecution seeks
to rely on the confession of a co-accused person, the presumption of innocence which
is the basis of criminal jurisprudence assists the accused person and compels the court
to render the verdict that the charge is not proved against him, and so, he is entitled
to the benefit of doubt. That is precisely what has happened in these appeals.
18. In the result, the appeals are allowed and the orders of conviction and sentence
passed against the two appellants Haricharan Kurmi and Jogia Hajam are set aside
and the accused are ordered to be acquitted.
———
* Appeals by Special Leave from the Judgment and Order dated 17th August, 1963 of the Patna High Court in
Criminal Appeals Nos. 54 land 556 of 1961.

1 1959 SCR 1219

2 (1911) ILR 38 Cal 559 at p. 588
3 (1913) ILR 54 Mad 75 at p. 77
4 (1949) 76 IA 147 at p. 155
5 (1952) SCR 526

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