The admissibility of a confession as evidence against co-accused for a different charge than the one the confession pertains to.

Horwill, J.

1. The three appellants were charged in the Court of the Sessions Judge of Bellary under Section 302 of the Indian Penal Code with the murder of a boy aged 6 years, named Ramappa, by cutting his throat. The learned Sessions Judge convicted the first and second appellants of the offence with which they were charged and sentenced them to death. He however accepted the explanation by the third appellant in his confessional statement that he took no part in the murder and was not aware that it was going to be committed, and so found him guilty only under Section 201 of the Indian Penal Code, because he had buried the knife with which the murder was committed. He was sentenced to 5 years rigorous imprisonment.

2. As the offence was committed in the house of P.W. 4 during the absence of himself and his wife and there were no persons in the house other than the murdered boy and his little sister aged 3, there are no actual eye witnesses of the murder. But there is important circumstantial evidence of persons who saw the three appellants enter the house of P.W. 4 and who saw them leave again. P.W. 5 was working in his rick yard only 100 yards away from the house of P.W. 4; and he saw the three appellants both enter the house and leave it. P.W. 6 did not actually see the accused leaving P.W. 4s house, but he saw them at 2 or 3 yards from the house as they were emerging from the back-yard. P.W. 7 saw the accused going from their village towards the village of P.W. 4 and asked them where they were going. The third appellant replied that he was going to the house of P.W. 4 to get the two bags of cholam for the first appellant. P. Ws. 8 and 9 were grazing bulls and saw the three appellants going in the direction of P.W. 4s village. They, too, asked the appellants where they were going and why, and the third appellant gave the same answer to them as he had given to P.W. 7. P.W. 4, the father of the murdered boy, was not absent for very long from his house. He left late in the afternoon and came back just at dusk; and it was during his short absence that the three appellants entered the house of P.W. 4 and it was during that time that the boy Ramappa was murdered. It is a reasonable conclusion to draw from the circumstances that the three appellants committed the murder. In the Courts below they all denied that they entered the house of P.W. 4; but we see no reason at all for not accepting the disinterested evidence of these five witnesses.

3. The learned Sessions Judge took into account against appellants 1 and 2, the confessional statement of the third appellant, (Ex. H) in which he said that thef three of them went from their village along, a certain foot-path to the house od P.W. 4, removed the door of the rick yard, and found inside the deceased boy an his little sister playing in the yard. The boy was decoyed into the kitchen by the offer of a two-anna piece and while the third appellant was standing in the padasalai in front of the kitchen door, the first appellant held the little boy over the oven while the second appellant cut his throat with the knife which she had, allowing the blood to flow into the ashes of the oven. He exclaimed " You have ruined my maternal uncles house." The first and second appellants, who are women, brought out the weapon used in the commission of the crime wrapped in a piece of blue cloth. They handed over the knife and the cloth to him asking him to conceal it, which he did. As a result of this confession made to the police, the police and panchayatdars proceeded to the spot indicated by the third appellant, from which he produced the knife wrapped in the cloth.

4. It has been argued that the above statement is not a confession at all, because the third appellant did not implicate himself in any way; but we have no doubt that it is a confession of an offence punishable under Section 201, Indian Penal Code, for he admittedly buried the knife in order to conceal evidence of the murder. The m