Headnote:Section 164-Confession of co-accused-Evidentiary value of Evidence of accomplice-Necessity of corroboration. - Criminal appeals-Interference with concurrent finding of fact.
       Held: The Supreme Court does not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice very important points m the a9cuseds favour which swing the balance the other way, It will not let the finding stand. Sections 300 and 302-Charge of murder-Necessity to -examine evidence.
       Held: Where the murder committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial security of the facts and law. - Sections 302, 201-Charge of murder-Conviction for offence under S.201-Legality-Criminal Procedure Code, Ss. 236, 237. - Sections 236, 237-Charge of murder-Conviction for offence under S. 201, Indian Penal Code-Legality.
       Held : Where a person is acquitted of the charge of murder and other cognate charges, with which he is charged, his conviction under S. 201, Indian Penal Code, without any further charge is not illegal. Section 538-Confession-Desirability of examination or magistrate.
       Held: Where it was objected that the prosecution had not examined as a witness the Magistrate who had recorded the confession under S. 164, it was an improper and undesirable practice to examine Magistrate in such cases. - Sections 30, 114, Illus. (b) and 133-Confession-Evidentiary value-Use of in corroboration of accomplices and approvers.
       Held: (1) The question arises how far and in what way the confession of an accused person can be used against a co-accused. It is evident that it is not evidence in the ordinary sense of the term because it does not indeed come within the definition of evidence contained in S. 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 cross-examination. Such a confession cannot be made the foundation of a conviction and can only be used "in support of other evidence." The question is, in what way can it be used in support of other evidence Can it be used to fill in missing gaps 1 Can it be used to corroborate an accomplice or, as in present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refused to believe him except in so far as he is corroborated.
       The proper way to approach a case of this kind, is first to marshall the evidence against the accused excluding the confession altogether from considerations and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend. assurance to the evidence and thus fortify in believing what without the aid of the confession would not be prepared to accept.
       (2) As regards its use in the corroboration of accomplices and approvers, a co-accused who confession is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another is there. The danger is in no way lessened when the "evidence" is not on oath and. cannot be tested by cross-examination. Prudence will dictate the same rule, of caution in the case of a witness who though not an accomplice is regarded by the Judges as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution which experience dictated, in mind and. gives reasons why he thinks it would be safe in a given case to disregard it. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exception of circumstances and for reasons closed. The tendency to include the innocent with the guilty is peculiarly prevalent in India and it is very difficult for the court to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused.

Judgement Key Points

Key Points: - The confession of Gurubachansingh (co-accused) can only be used in support of other evidence and not as a direct basis for conviction (!) (!) (!) (!) . - A conviction can be based on uncorroborated testimony of an accomplice only with caution and independent corroboration against the accused; using accomplice testimony to corroborate another is allowed only in exceptional circumstances (!) (!) (!) (!) . - The court must marshal evidence excluding the confession first and only use the confession to lend assurance if other evidence would not suffice alone (!) . - There is a strong rule against relying on accomplice/confession evidence to corroborate a non-confessing accused, due to risk of convicting the innocent; safeguards require independent evidence (!) (!) . - The appellate court may interfere with concurrent findings of fact if important points favorable to the accused were omitted and could alter the verdict, especially in a particularly cruel murder case (!) (!) . - The evidence regarding the coat and safa did not establish a nexus to the appellant; such identification was weak and cannot sustain conviction (!) (!) (!) . - The court acquitted the appellant of murder, conspiracy, and kidnapping but convicted under Section 201 IPC for disposing of the body and sentenced to seven years imprisonment (!) (!) . - The propriety of examining or calling the magistrate who recorded the confession was judged improper and undesirable; magistrate need not be called (!) . - There were procedural concerns about the treatment and custody of Gurubachan post-confession which affected the reliability of corroboration (!) (!) (!) (!) (!)

What is the proper use and evidentiary value of a confession of a co-accused under Section 30 Evidence Act and how should it corroborate other evidence?

What is the legality and appropriateness of convicting a non-confessing accused on the basis of an accomplice’s confession and corroborative evidence?

How should concurrent findings of fact be treated when important favourable points for the accused are omitted or misapplied, particularly in murders with a particularly cruel and revolting nature?

Judgment

Bose, J. - The appellant Kashmira Singh has been convicted of the murder of one Ramesh, a small boy aged five, and has been sentenced to death. He was granted special leave to appeal. Three other persons were tried along with him. They were his brother Gurudayalsingh, his nephew Pritipalsingh (son of Gurudayal), a boy of eleven, and one Gurubachansingh. Gurudayal and Pritipal have been acquitted. Gurubanchansingh confessed and was convicted. He was also sentenced to death. He has not appealed here.

2. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.

3. The prosecution case is this. The deceased Ramesh was the son of P. W. 48 L. P. Tiwari who was the Food Officer at Gondia at the relevant date. The appellant Kashmira Singh was an Assistant Food Procurement Inspector there. On 1-7-1949 Tiwari found the appellant and Harbilas (P. W. 81) getting rice polished at a certain rice mill At that date the polishing of rice was prohibited by a State law. Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandars. He suspended the appellant and later his services were terminated by an order of the State Government with effect from 7th July. The orders were communicated on 17th November. This embittered the appellant who on at least two occasions was heard to express a determination to be revenged.

4. In pursuance of this determination he got into touch with the confessing accused Gurubachansing and enlisted his services for murdering the boy Ramesh.

5. On 26-12-1949 festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and from there was enticed to the house of the appellant s brother Gurudayalsingh and was done to death in a shocking revolting fashion by the appellant, with the active assistance of Gurubachansing, in the middle of the day at about 12 or 12.30. The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal s house till about 7 P. M.

6. At 7 P. M. the body, wrapped as above, was carried by Gurubachan on his head to a chowkidar s hut near the Sikh Gurudwara. The appellant accompanied him. The map, Ex. P 18A, shows that the distance along the route indicated was about half a mile to three quarters of a mile. It was left there till about midnight.

7. Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao, P. W. 14,. They took him to the chowkidar s hut, recovered the bundle of bedding and went in the rickshaw to a well which appears from the map, Ex. P 18-A, to be about half a mile distant. There the body was thrown into the well. That in brief is in the prosecution case.

8. Gurubachan s confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It in evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King, 76 Ind. App 147 at p. 155.

"It does not indeed come within the definition of evidence contained in S. 3. Evidence Act. It is not required to be given on oath, nor in the presence of the accused and is cannot be tested by cross-examination."

Their Lordships also point out that it is

"obviously evidence of a very weak type ..... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."

They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence." In view of these remarks, it would be pointless to cover the same ground, but we feel it is nece

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1952 Supreme(SC) 17

What is the proper use and evidentiary value of a confession of a co-accused under Section 30 Evidence Act and how should it corroborate other evidence?

What is the legality and appropriateness of convicting a non-confessing accused on the basis of an accomplice’s confession and corroborative evidence?

How should concurrent findings of fact be treated when important favourable points for the accused are omitted or misapplied, particularly in murders with a particularly cruel and revolting nature?

Cases Referred (1)