TMI Blog1949 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... t he is a relation of accused 1 and 2 who are said to have been on terms of enmity with the deceased, but both of whom were acquitted of the murder. Eight persons were charged with the offence and tried by the Sessions Judge of Ganjam-Puri. The learned Judge convicted six of the accused including the appellant who was accused 7 and one Trinath, who was accused 5. The six convicted persons appealed to the High Court at Patna. Two of the appeals were allowed, but the other appeals, including those of the appellant and Trinath, were dismissed. The only question which arises on this appeal is whether there was evidence upon which the appellant could be properly convicted. 3. The evidence against the appellant consisted of, (a) the evidence of Kholli Behara who had taken part in the murder and had become an approver; (b) the confession of Trinath recorded under Section 164, Criminal P.C. which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or instrument for cutting grass, in circumstances allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther details. In particular he said that the appellant gave him a khantibadi which he, the approver, subsequently gave to Trinath who handed it over at the appellant's house. The approver also alleged that the appellant gave to each of them, himself and Trinath, a sum of ₹ 25, presumably as remuneration for the part they had taken in the murder. On 8th July 1947, the approver gave evidence in the Sessions Court. His evidence was that he knew nothing about the murder, and he denied all the facts to which he had deposed before the Committing Magistrate. He affirmed that his evidence before the Committing Magistrate was the result of beating and tutoring by the police, and he denied that he had made any statement at all before a Magistrate under Section 164, Criminal P.C. Thereupon the Sessions Judge brought the evidence of the approver given before the Committing Magistrate upon record under Section 288, Criminal P.C. the effect being to make the evidence given before the Committing Magistrate evidence in the case for all purposes. Both the learned Sessions Judge, and the learned Judges of the High Court in appeal, preferred the evidence given by the approver before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused sought to be implicated in the crime. 7. Acting upon this principle the learned Judges proceeded to consider, in the case of each accused, whether the evidence of the approver was sufficiently corroborated against him. They were not prepared to accept the confession of Trinath, who was also an accomplice, as sufficient corroboration of the evidence of the approver ; and in the case of Mata Simma, who was accused No. 6, against whom there was only the evidence of the approver and Trinath, they allowed the appeal; but as against the appellant, they found sufficient independent corroboration in the discovery of the deceased's cloth and the production of the khantibadi. With regard to the cloth, as already noticed, the evidence of the approver was that the appellant threw the cloth over a hedge, and it was proved at the trial that the cloth was found in the place pointed out by the approver. This fact no doubt was of value as supporting the credibility of the approver's story, but there is nothing beyond the statement of the approver to connect the appellant with the cloth. It was not found at the appellant's house, or in any place under his control, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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. 9. This section was introduced for the first time in the Evidence Act of 1872, and marks a departure from the Common Law of England. It will be noticed that the section applies to confessions, and not to statements which do not admit the guilt of the confessing party. In the present case the Courts in India appreciated this, and ruled out statements made by certain of the accused which were self-exculpatory in character. The statement of Trinath was, however, a confession. Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But 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, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to secure the benefits the hope of which inspired it. Their Lordships will assume that the confession of Trinath was not weakened by its retraction. Even so, the approver and Trinath were, according to both their statements, working together on the day of the murder when they were summoned by the appellant to take patt in the crime; they were arrested on the following day so they had had a day, in which they must have appreciated that they were under suspicion, in which to arrange their story. After their arrest they were for some two days in police custody before they were sent up together, and with other accused, to the Magistrate to have their confessions recorded, and there is no evidence that they were kept apart during this period. In that state of the evidence, it is impossible to say that the approver and Trinath were kept apart from each other, and that their previous concert was highly improbable. Sir Valentine Holmes has relied strongly on the case In re B.K. Rajagopal A.I.R. (31) 1944 Mad. 117 I 45 Cr.L.J. 373 P.B., in which the Court founded a conviction upon the evidence of an accomplice supported only by the confession of a co-accused. heir Lordships whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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