The interpretation and application of Section 30 of the Evidence Act in admitting confessions as evidence against co-accused, and the reliance on circumstantial evidence in establishing guilt.

Waller, J.

1. I agree that Exhibit G is a statement that should not have been taken into consideration against the 1st accused. He and the maker of the statement were being jointly tried for murder and Exhibit G was not a confession of murder jointly affecting both. The law on the point was correctly laid down by Straight, ]., many years ago in the Allahabad case Empress of India v. Ganraj (1879) I.L.R. 2 A. 444 cited by my learned brother. As regards the case Shivabhai v. Emperor (1926) I.L.R. 50 B. 683 a statement by one of the accused that he by himself had burnt the clothes of a murdered man and would show the place was treated as a confession of participation in the murder and admissible under Section 27 of the Evidence Act against him. To that extent, the decision seems to be correct, but when it goes on to put forward some circumstantial grounds on which the Judges held that the confession "indirectly affected" another accused not named in it and could, therefore, be vised against him under Section 30 of the Evidence Act, I find myself wholly unable to follow it.

2. Apart from the so-called confession, there is, I think, a strong circumstantial case against the 1st appellant. Against the 2nd, there is that and more, that is to say, his statements, Exhibits G and H. They show that he was present when the murder was committed. That they give a true account of what happened is incredible. The murder and disposal of the body could not have been the work of one man. Nor is it believable that the 1st appellant would have suddenly murdered Ramaswami in the presence of the 2nd appellant without the previous knowledge and consent of the latter. The scene of the murder was probably deliberately chosen. It was a place where the Periyar channel, which was then certain to be in flood, runs close to the road. Doubtless the intention was, as stated in Exhibit H, to throw the body into the channel. Apparently, in the darkness, the murderers mistook the water in the burrow-pit for the channel. I agree in the order proposed by my learned brother.

Reilly, J.

3. In this case the appellants, accused 1 and 2, have been convicted by the Sessions Judge of Madura of murdering one Ramaswami Moopan, with whom it has been found they were dealing in sheep as partners.

4. The learned Sessions Judge has taken into consideration against accused 1 a statement, Exhibit G, made by accused 2 before the Sub-Magistrate of Dindigul. In that statement accused 2 does not admit that he took any part in the murder of Ramaswami; he says that accused 1 killed Ramaswami and then compelled accused 2 by a threat to assist in disposing of the body. The learned Public Prosecutor has contended that Exhibit G is a statement which the Sessions Judge was at liberty to take into consideration against accused 1 under Section 30 of the Evidence Act because it was a confession, not indeed of murder, but of causing the evidence of murder to disappear, which is an offence punishable under Section 201, Indian Penal Code. In my opinion that contention is mistaken. Section 30 of the Evidence Act is a very exceptional, indeed an extraordinary, provision, by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that we do not stretch it one line beyond its necessary intention. It is true that the section provides only that the confession of one accused person may be "taken into consideration" against his fellow-accused. As I understand the section, the confession cannot take the place of evidence against the co-accused; nor can it be added to supplement evidence otherwise insufficient. As I understand the matter, the provision goes no further than this- where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believ