Judgment

GAJENDRAGADKAR, C. J.: The two appellants Haricharan Kurmi and Jogia Hajam were charged along with four other persons with having committed an offence punishable under Section 396 of the Indian Penal code, in that during the night intervening the 24th and the 25th March, 1960, they committed dacoity in the house of Deokinandan Jaiswal, and during the course of the said dacoity, they committed the murder of Damyanti Devi, wife of the said Deokinandan Jaiswal. The names of the four, other accused persons are: Ram Bachan Ram, Jogender Singh, Ram Choudhury and Achheylal Choudhury. The learned Sessions Judge, Muzaffarpur, who tried the case, found all the six accused persons guilty of the offence charged. He accordingly convicted them of the said offence and sentenced them to suffer imprisonment for life.

2. This order of conviction and sentence was challenged by the said six accused persons by preferring appeals before the Patna High Court. The High Court has held that the learned trial Judge was right in convicting five of the six appellants because, in its opinion, the evidence led by the prosecution proved the charge against them beyond reasonable doubt. In regard to Jogender Singh, however, the High Court was not inclined to agree with the conclusion of the trial Judge and gave benefit of doubt to him. Pending the hearing of these appeals, a rule for the enhancement of sentence was issued by the High Court against all the appellants. This rule has been discharged in regard to Jogender Singh who has been acquitted, as well as Ram Bachan Ram, Ram Surat Choudhury and Achheylal Choudhury and the sentence of imprisonment for life imposed on them by the trial Judge has been confirmed. In regard to the two appellants, however, the High Court took the view that the ends of justice required that the sentence of imprisonment for life imposed on them should be enhanced to that of death. Accordingly, the rule against them was made absolute and they have been ordered to be hanged. It is against this order of conviction and sentence that the present appeals have been brought before us by special eave; and the short question of law which has been raised before us by Mr. Tatachari is that the High Court has erred in law in treating the confession made by the co-accused Ram Surat Choudhury as sustantive evidence against them. This course adopted by the High Court dealing with the case of the appellants on the basis of confession made by the co-accused person is, it is urged, inconsistent with the consensus of judicial opinion in regard to the true scope and effect of Section 30 of the Indian Evidence Act (hereinafter called the Act ).

3. These appeals were argued before a Division Bench of three learned Judges of this Court and it was brought to the notice of the said Bench that in dealing with the case of the appellants in the light of the confession made by a co-accused person. the High Court had relied on the observations made by this court in Ram Prakash v. State of Punjab, 1959 SCR 1219. Since these observations, prima facie supported the view taken by the Patna High Court, the Division Bench thought it necessary to refer this matter to a larger Bench in order that the correctness of the said observations may be examined. That is how these appeals have come before a Constitution Bench.

4. The facts leading to the prosecution of the appellants lie within a narrow compass, and so far as the point which falls to be considered in the present appeals is concerned, there is no dispute in respect of the said facts. Deokinandan Jaiswal is a fairly wealthy businessman and lives in village Dumarbana within the Police Station of Bairgania in the District of Muzaffarpur. He has a house of his own. Achheylal and Ram Bachan served under him as munims. Jogender Singh was Jaiswal s sepoy and Ram Surat was his personal servant. The appellants are the co-villagers of Joginder Singh who was one of the accused persons. It appears that on March 24, 196