Sir John Beaumont.-This is an appeal by special leave from the judgment and order of the High Court of Judicature at Patna dated the 19th September, 1947, dismissing an appeal against the judgment and order of the Court of the Sessions Judge of Ganjam-Puri dated the 23rd July, 1947, whereby the appellant was convicted of the offence of murder under section 302/34 of the Indian Penal Code and sentenced to death. At the conclusion of the arguments their Lordships announced that they would humbly advise His Majesty that the appeal be allowed and would state their reasons later. This they now proceed to do.

It is not in dispute that on the 11th October, 1946, one Kalia Behara 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 is unnecessary to refer to the details of the murder; though it may be noted that the motive attributed to the appellant was that he is a relation of accused Nos. 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 No. 7, and one Trinath, who was accused No. 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.

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 section 164 of the Code of Criminal Procedure which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or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.

The law in India relating to the evidence of accomplices stands thus:Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the High Court of Calcutta in R. v. Elahee Buksh1, that the law relating to accomplice evidence was the same in India as in England. Then came the Indian Evidence Act which by section 133 enacts that

“An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice”.

Illustration (B) to section 114 of the Evidence Act however provides that

“The Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars”.

Reading these two enactments together the courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the courts on the phrase “corroborated in material particulars” in illustration (B) to S. 114.

The approver in the present case was a man aged about twenty. He was arrested on the 12th October, 1946, the day after the offence, and on the 14th October was sent by the police to a magistrate, who was called as a witness at the trial, and who on 15th