Judgement

Appeal (No. 39 of 1948), by special leave, from a judgment and order of the High Court (September 19, 1947) dismissing an appeal against a judgment and order of the Court of the Sessions Judge of Ganjam-Puri (July 23, 1947) whereby the appellant, Bhuboni Sahu, was convicted of the offence of murder under s. 302/34 of the Indian Penal Code and sentenced to death.

The following facts are taken from the judgment of the Judicial Committee It was not in dispute that on October 11, 1946, one Kalia Behera was brutally murdered at a place between Berhampur, where he lived and carried on business as a jutka driver, and Golantra, to which he was driving with passengers in his jutka. It was unnecessary to refer to the details of the murder; though it might be noted that the motive attributed to the appellant was that he was a relation of accused Nos. 1 and 2 who were 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 No. 7, and one Trinath, who was accused No. 5. The six convicted persons appealed to the High Court at Patna (Das and Ayyar JJ.). Two of the appeals were allowed, but the other appeals, including those of the appellant and Trinath, were dismissed. The only question which arose on this appeal was whether there was evidence on which the appellant could be properly convicted.

The evidence against the appellant consisted of (a) the evidence of Kholli Behera, who had taken part in the murder and had become an approver; (b) the confession of Trinath, recorded under s. 164 of the Code of Criminal Procedure, which implicated both himself and the appellant in the murder, but which was retracted in the Sessions court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or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 alleged to implicate the appellant

1949. Feb. 14, 15, 17. Pritt K.C. and Subba Row for the appellant. As ruled by the Privy Council in Brij Bhushan Singh v. King-Emperor (1), statements recorded under s. 164 of the Criminal Procedure Code are not evidence of a substantive or corroborative character, and the courts in India were wrong in treating the statements of Trinath and the approver made under that section as substantive evidence against the appellant, and a statement under s. 164 can never be used as evidence to corroborate another witness or to corroborate the evidence of an accomplice. Even if Trinaths statement under s. 164 is regarded as a confession it is not strictly evidence, but could only be taken into consideration against the other accused provided that there is other untainted evidence. For the meaning of “taken into consideration in s. 30 of the Indian Evidence Act, 1872, see In re Rajagopal (I. L. R. [ 1944] M. 308.) and Sarkar on The Law of Evidence as Administered in British India, 7th ed., pp. 309—11. The only evidence against the appellant is that of the approver, who made contradictory statements and, as observed by Ayyar J., his evidence suffers from a double taint. According to the practice of the courts of India, which, it is submitted, is sound, the evidence of an approver is not accepted unless it is corroborated in material particulars by independent evidence, and there is no such evidence in this case. Trinath, as an accomplice, could not corroborate Kholli, the approver. On a full examination of the current of authority in the various High Courts in India the conclusion is that the law in India on this point is the same as that of England, and one accomplice cannot corroborate another; that is the true rule Mahadeo v. The King ([ 1936] 2 All E. R. 813.) ; Rex v. Baskerville ([ 1916] 2 K. B. 658, 663.) ; Ambica Charan Roy v. Emperor (( 1930) 35 C. W.

N. 1270, 1273.) ; Tumah