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Case Number

Criminal Appeal No. 282 of 1913

Judges

Sir BASIL SCOTT

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

Eleven persons were jointly tried on a charge of dacoity. Seven of the eleven made confessions at various stages — before a Third Class Magistrate, the Committing Magistrate, or both — and those seven also implicated the remaining four. In addition to the confessions, there was other evidence as to the seven confessing accused. All eleven were convicted by the Sessions Judge and each appealed. The appeal was heard by Heaton and Shah, JJ., who disagreed as to the convictions of accused numbers 4, 9, 10 and 11; the matter was referred to Macleod, J., for final determination. The principal factual points noted in the opinion include that a dacoity was committed at the house of one Aminappa on the night of 18/19 January 1913, that some accused produced cash while in police custody, that several of the confessions were retracted before later magistrates or in the Sessions Court, and that at least some of the confessing accused spent three or four days in police custody before they made statements.

Legal Issues Presented

Whether the confessions made by the seven accused were rendered irrelevant by the provisions of Section 24 of the Evidence Act (i.e., whether they were inadmissible because obtained by inducement, threat or promise).
Whether the confessions of a co-accused can be treated as evidence against other accused under Section 30 of the Evidence Act (i.e., whether the confession of one accused affecting himself and others is admissible and to what extent it may be relied on).
Whether a conviction can properly be founded solely upon the confessions of co-accused (i.e., whether confessions of co-accused, without independent corroboration, can legally support a conviction of those implicated).
If confessions of co-accused may be taken into consideration, what weight should be given to multiple confessions that implicate the same persons, particularly where confessions have been retracted or where there are questions about custody, communication among accused, and lack of cross-examination.

Arguments of the Parties

Prosecution / Government Pleader

Relied on the confessional statements of the seven accused as material against the other four under Section 30 of the Evidence Act.
Also relied upon two additional circumstances to support convictions of some appellants: (1) production of certain cash by accused 4 and (2) the conduct of accused 9 to 11 in being absent from their usual quarters for some time.
Contended that where a Judge is convinced by confessions he may act upon them, and pointed to the Nasik Conspiracy tribunal experience and other authorities to support treating confessions of co-accused as evidence for consideration.

Defence / Appellants

Contended that the ruling in Queen-Empress v. Khandia bin Pandu establishes that the confession of a co-accused is not technically evidence and that a conviction based solely on such confessions is illegal.
Emphasized the retractions of confessions before the Committing Magistrate and in the Sessions Court, extended police custody prior to confessions, the possibility of communication among accused, lack of cross-examination of those confessions, and absence of independent corroboration demonstrating participation in the dacoity.
Argued that the confessions of co-accused, being untested (not made on oath and not cross-examined), have low evidentiary value and therefore cannot alone justify convictions in the absence of independent corroboration in material particulars.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Queen-Empress v. Khandia bin Pandu	Held that a conviction founded solely on the confession of a co-accused could not be sustained; the confession of a co-accused not technically evidence (as ruled in that case).	Shah and Macleod treated this decision as laying down a binding rule of practice that convictions should not be based solely on co-accused confessions; Heaton declined to follow it on reasoning set out in his opinion.
Empress v. Ashootosh Chukerbutty	Calcutta Full Bench view that confessions of co-accused were regarded as evidence but that convictions on such confessions alone would be bad in law (supports requirement of caution and corroboration).	Heaton cited this as authority for treating confessions of co-accused as evidence; Shah cited it as supporting the rule that confessions alone are insufficient and must be corroborated.
Nasik Conspiracy case (Special Tribunal)	Practice in that trial: confessions of co-accused were treated as evidence, tested, and weighed by the tribunal.	Heaton relied on his experience as a member of that tribunal to support the view that confessions of co-accused can be treated and weighed as evidence.
Reg. v. Amhigara Hulagu	One of the Madras authorities reflecting the view that confessions of co-accused cannot, without more, sustain a conviction.	Shah cited this as part of the Madras High Court line of authority that supports requiring independent corroboration.
In re Giddigadu	Another Madras authority consistent with the position that confessions of co-accused alone are insufficient for conviction.	Shah cited it as part of the established Madras High Court view favouring corroboration.
Emperor v. Lalit Mohan Chukerbutty (Noni Gopal Gupta)	Calcutta decision (Jenkins, C.J.) interpreting Section 30 as allowing courts to take confessions into consideration against others but indicating that a conviction on confession of co-accused alone would be bad in law.	Shah cited the judge's reasoning and quotation to support the proposition that S.30 does not make confessions of co-accused a substitute for independent evidence.
Empress v. Bhawant	Allahabad High Court decision accepting the view that confessions of co-accused alone are insufficient; supports requirement of corroboration.	Shah referred to it as demonstrating the Allahabad Court's alignment with the view that S.30 confessions need corroboration to sustain conviction.
Queen-Empress v. Nirmal Das	Allahabad High Court decision cited as accepting the view that confessions of co-accused alone cannot sustain conviction.	Shah cited it as part of the Allahabad authority supporting his approach.
Emperor v. Kehri	Mentioned in argument as a case where some Judges expressed dissent from the view in Nirmal Das' case; not treated as overruling that view.	Shah noted it but concluded that the Allahabad High Court had not definitely dissented from Nirmal Das.
Reg. v. Timava	Earlier decision of this Court relevant to the approach to confessions of co-accused.	Shah cited it among decisions showing the Court's consistent view that conviction should not be based solely on co-accused confessions.
Reg. v. Amrita Govinda	One of the rulings which earlier prompted legislative attention; referenced in the context of historical efforts to amend Section 30.	Shah noted that a proviso was added to S.30 by Act 3 of 1891 to deal with effects of certain rulings like this, but no amendment later changed the view on confessions of co-accused being insufficient alone.
Badi v. Queen Empress	Another ruling referenced in the historical legislative discussion concerning Section 30.	Shah referenced it in noting that although some rulings were addressed by legislative proviso in 1891, nothing thereafter was done to alter the rule that confessions alone cannot sustain conviction.

Court's Reasoning and Analysis

Heaton, J. — Analysis and Reasoning

(Heaton delivered one of the initial opinions; he would have convicted all eleven, with a referral for four accused because of disagreement.)

As to the seven who confessed, Heaton found the evidence conclusive and saw no reason to reject their confessions as irrelevant under Section 24 of the Evidence Act. He pointed to the manner of recording and the Magistrate's assurances of voluntariness as supporting relevance.
He acknowledged an adverse circumstance — that the confessing accused were in police custody for three or four days before confessing and that stolen property was produced — but observed that the record does not explain the custody period and that no cross-examination specifically challenged voluntariness; the Magistrate was satisfied the confessions were voluntary.
On the question whether confessions of a co-accused are evidence, Heaton rejected the Khandia ruling's practical effect, stating that in his experience courts have treated confessions of co-accused as evidence and have weighed them for probative force. He treated such confessions as falling within the definition of evidence, and read Section 30 as applying to a confession already proved in the case so that it may be taken into consideration against others.
He relied on Empress v. Ashootosh Chukerbutty as supporting the treatment of co-accused confessions as evidence.
He rejected the proposition that confessional evidence of a co-accused is categorically of such peculiar character that it cannot sustain conviction: He emphasized that credibility is for the Court to assess, not to be precluded by a rule; if multiple independent confessions implicate the same persons, the combined weight may constitute strong proof.
Applying these views, he concluded that the seven confessions came from independent sources and it was nearly inconceivable that they would all falsely implicate the same four; thus he would have confirmed convictions of all eleven. Because of disagreement with his colleague on four accused, referral to a third Judge was required.

Shah, J. — Analysis and Reasoning

(Shah delivered the opposing opinion on the appeals of accused 4, 9, 10 and 11.)

Shah accepted that S.30 allows a court to take confessions of a co-accused into consideration against others, but emphasized that the provision only permits such consideration "as against other persons" and does not elevate such confessions to the level of independent, tested evidence.
He maintained that the confessions of co-accused have low evidentiary value because they are not made on oath and have not been tested by cross-examination; accordingly, justice requires independent corroboration in material particulars (particularly identity) before acting upon them.
He surveyed the authorities of Madras, Calcutta (Full Bench), Allahabad and this Court, and concluded that these courts have consistently required corroboration beyond confessions of co-accused — i.e., that a conviction based solely upon such confessions is bad in law.
Shah analyzed the facts: all confessions were retracted; arrests were not on the spot; the timing and movement of accused made it impossible to guarantee separation and independent statement-making; none of the confessing co-accused enjoyed an especially credible character that would favor acceptance; and the confessions could not be and were not tested by cross-examination.
Concluding from these considerations, Shah found the confessions insufficient to establish beyond reasonable doubt that appellants 4, 9, 10 and 11 took part in the dacoity, and he would set aside their convictions and acquit them.

Macleod, J. — Final Decision and Reasoning

(Referred case to Macleod for final decision because of difference of opinion between Heaton and Shah, JJ.)

Macleod noted the text of Section 30 and acknowledged the long judicial controversy about its meaning.
He accepted that the court may take co-accused confessions into consideration and that whether one calls such material "evidence" or "matter" is less important than the practical effect; however, he emphasized that High Courts have developed rules of practice that should guide exercise of discretion under S.30.
He regarded Queen-Empress v. Khandia bin Pandu as laying down a definite rule of practice that a conviction should not be founded solely upon the confession(s) of co-accused, and he considered that decision binding where not reversed.
Macleod agreed with Shah that a judge sitting with assessors ought never to convict solely on a co-accused's confession because the judge lacks the materials to decide its truth as against another accused; and even where many co-accused have confessed, that does not convert the confessions into independent evidence sufficient to convict.
Applying this principle to the present case, where there was nothing on record implicating the appellants except the confessions of other accused and where retractions and other defects undermined reliability, Macleod concluded that the convictions of accused 4, 9, 10 and 11 could not stand.
Accordingly, he ordered return of Rupees 240 taken from accused 4 and allowed the appeal of accused 4, 9, 10 and 11.

Holding and Implications

Holding: The appeal by accused numbers 4, 9, 10 and 11 is allowed; their convictions and sentences are set aside and they are acquitted. Rupees 240 taken from accused 4 is ordered to be returned to him. (Appeal allowed.)

Implications:

Direct effect: Accused 4, 9, 10 and 11 are acquitted; a specific sum (Rs. 240) seized from accused 4 is to be returned.
On legal practice: The court reaffirmed, through the decision of Macleod, J., that a conviction ought not to be maintained when it rests solely on confessions of co-accused that have not been corroborated by independent evidence in material particulars; this follows the line of authority cited (Queen-Empress v. Khandia bin Pandu and other High Court decisions) and reflects rules of practice the High Courts have laid down.
No sweeping new rule of law was created by the plurality opinions; the judges debated whether confessions of co-accused are to be treated as "evidence" or "matter" under S.30, and opinions diverged. The final decision applied existing authority holding that confessions of co-accused alone are insufficient to sustain a conviction in the absence of independent corroboration.

Note: This summary reflects only the contents and statements contained in the provided opinion and does not add or infer facts beyond what the opinion itself states.

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Gangapa Kardepa And Others Accused v. Emperor Opposite Party.

Heaton, J.:— 28th August 1913.—In this case eleven persons were tried for dacoity. Seven out of the eleven either before a Third Class Magistrate or the Committing Magistrate or both confessed to their guilt and implicated the other four. As regards these seven there was other evidence besides their confessions. All eleven were convicted and all have appealed.

2. As regards the seven who made confessions, I think the evidence is conclusive.

3. The only matter which requires serious consideration as regards them is whether to their confessions the provisions of Section 24 of the Evidence Act apply, so as to render them irrelevant. The matter was considered Toy the trying Judge and he came to the conclusion that the confessions were relevant. Accused 1 confessed only to the Committing Magistrate and accused 2 and 5 before the Committing Magistrate confirmed the confessions they had previously made. Before the Committing Magistrate accused 3, 6, 7 and 8 repudiated their confessions and two of them Nos. 6 and 7 produced written statements. These two, therefore, had evidently carefully considered the matter. I infer that the others had done the same. Hence the fact that accused 1, 2, and 5 confessed to the. Committing Magistrate is, in the circumstances, a peculiarly strong reason for holding that the confessions of all were given in a way that did not offend against the provisions of Section 24 of the Evidence Act. This inference is confirmed by the manner in which the confessions were recorded and by the assurance of the Magistrate who recorded them that they were voluntarily made. Against this is the circumstance that the confessing accused were in each instance for three or four days in the custody of the police before they confessed and that whilst in such custody they produced property alleged to be stolen. How it come about that they were so long in police custody does not appear. Accused 3, 6, 7 and 8 were all defended by three pleaders but no cross-examination of witnesses was directed to this matter. The Magistrate who recorded the confessions was aware of it, yet he was satisfied that the confessions were voluntary.

4. I do not find any good reason for rejecting these confessions. They appear to me to be relevant.

5. I would, therefore, confirm the convictions of accused 1, 2, 3, 5, 6, 7, and 8.

6. As regards the other four, questions on which my learned colleague and myself are not agreed have arisen.

7. Against the other four, there is nothing substantial to show that they took part in the dacoity except the confessions of the other seven. It has been contended first of all that, as was decided in the case of Queen-Empress v. Khandia bin Pandu (1), the confession of a co-accused is not technically evidence and that, therefore, a conviction based on the confession of co-accused, whether one or more than one, is illegal. As to this point, so far as my own knowledge goes, the ruling where it asserts that the confession of a oo-accused is not evidence, has not in practice been followed. The confession of a co-accused has always within my experience been treated as evidence. The Special Tribunal of three Judges, of which I was a member, which tried the Nasik Conspiracy case, certainly did treat the confessions of co-accused person, as evidence. These confessions were tested as far as possible, and were weighed by such knowledge and experience as we possessed, and we determined whether they had or had not probative force: that is to say, we dealt with them precisely as if they were evidence. Undoubtedly in my opinion, they fall within the definition of evidence in the Evidence Act; for these confessions are documents submitted to the inspection of the Court. Then S. 30 by its own terms applies only where the confession is proved; that is, it applies only to a confession which has become evidence in the case, and the section provides that it may then be taken into consideration against the person implicated as well as against the person making it. These words, in my judgment, are exactly appropriate to making the confession, which is already evidence in the case, evidence against the person implicated as well as the other accused. There are authorities on the point but the only one I will refer to is Empress v. Ashootosh Chukerbutty (2). In this case the Judges did regard the confession of a co-accused as evidence for reasons which to me are convincing. Therefore it is that I feel bound to decline to follow the ruling in Khandia's case and feel that I must treat the confessions of the co-accused as evidence for the purpose of all the accused.

8. The second point is that even so regarding the confessions, they are evidence of so peculiar a character that to found a conviction on that class of evidence alone is illegal and for this proposition there is the authority of the Calcutta case already referred to. But to this proposition also I must respect-fully demur. There is, I believe, no law whatever prescribing the credibility of evidence. Matters relating to the admission of evidence are matters of law, but the credibility of evidence is a matter left to the knowledge, experience and logic of the Court that has to decide on the evidence. I think that much of the confusion which has arisen, more particularly in the case of accomplice evidence, has arisen out of the fact, that questions of credence and questions of law have not been rigorously kept apart but have been confused together. Moreover I think that if a Court lay down a rule touching the credibility of evidence, it does that which it has no authority to do and which it ought to be against the conscience of the Court to do. How can a Court however eminent, lawfully say that a Jury in some, future case shall not be convinced by some particular class of evidence?

9. Dealing with cases of the four appellants against whom there is nothing but the confessions of co-accused, the matter in my judgment stands thus. The confessions are admissible in evidence. They are not found by the Sessions Judge to offend against any of the provisions of the evidence act and I do not think they do so offend. I think also that they are substantially true statements and are not the result of police or other tutoring. A careful perusal of the statements themselves convinces me of this. It is perfectly true that you cannot from the statements collectively gather with absolute precision either what the maker of each statement himself did or what each one of the others did. But this, it seems to me, is due to the fact that each of these accused persons told his own story in his own way. I have, therefore, cometo the conclusion that we have here the implication of four accused persons from seven different and independent sources. To my mind, as a matter of human knowledge and experience it is almost inconceivable that seven men should independently falsely accuse the same four persons. If, as I believe to be the case, the seven accused have independently implicated the other four, then I regard the evidence in this case as coming nearer to scientific proof than is to be found in the majority of cases in which persons are convicted.

10. It has, I am aware, been held, and it is often argued, that one accomplice or one co-accused cannot corroborate another. Why this argument is advanced is difficult to understand, when one refers to the comment on illus. (b) to Section 114 of the Evidence Act. That comment gives precisely this kind of corroboration as in certain circumstances a sound foundation for belief.

11. I should, therefore, confirm the convictions of all the eleven accused, but as my learned colleague is of a different opinion as regards accused 4, 9, 10 and 11, this case will, as regards them, have to be referred to a third Judge.

Shah, J.:— In this case, eleven persons were jointly tried on a charge of dacoity under S. 395, I.P.C All of them have been found guilty by the lower Court.

12. The present appeal is preferred by accused 4, 9, 10 and 11.

13. There can be no doubt in this case that a dacoity was committed at the house of one Aminappa. The main question in the appeal is whether accused 4, 9, 10 and 11 are proved to have taken part in the dacoity. The case against them rests chiefly upon the confessional statements of co-accused 1 to 3 and 5 to 8.

14. In addition to these statements the learned Government Pleader has relied upon two circumstances: viz., (1) the production of certain cash by accused 4; and (2) the conduct of accused 9 to 11 in remaining absent from the usual quarters for some time. The learned Sessions Judge does not attach much importance to these circumstances. I think that the production of cash, which is not identified as being part of the loot, does not afford any corroboration of the guilt of accused 4. As regards, the conduct of accused 9 to 11, I am unable to attach much weight to it, as by itself it is quite insufficient to afford any material corroboration to the confessional statements of the co-accused. The two accused 9 and 10 in fact surrendered not long after the warrants-were issued. The case against the appellants must rest ultimately on the confessions of the co-accused. I agree with the Sessions Judge that “If these four accused persons are to be convicted the conviction can be based only on the confessions of co-accused considered against them under Section 30 of the Evidence Act.”

15. Coming now to those confessions, the learned Sesssions Judge has declined to follow the ruling of this Court in Queen-Empress v. Khandia and has given his reasons for adopting the view that if a Judge feels convinced of the truth of the story as contained in the confessions of the co-accused, not only may he consider the statements but he is bound to act upon them even though there may be no evidence outside those statements to corroborate the story in material particulars. I am unable to agree with the Sessions Judge in his view that the decisions of this Court and of all the other High Courts in India, at least Madras and Calcutta High Courts, have put an erroneous interpretation upon Section 30 of the Evidence Act. I feel clear that the confessions of co-accused may be taken into consideration under Section 30 of the Evidence Act, along with other evidence in the case; but if there is no evidence in the case outside these statements, a conviction based only upon the confessions of the co-accused is not good in law. The confessions of the co-accused could not be considered at all against the other accused but for the provisions of Section 30 of the Evidence Act. These confessional statements are not made on oath and have not been tested by cross-examination. Their evidentiary value is very low. They stand on a much lower footing than the evidence of an accomplice. It is clear, therefore, that obvious considerations of justice require that a Court, before acting upon such statements, should insist upon independent corroboration from other evidence in the case in material particulars, particularly as to identity.

16. It is not a matter of much moment to my mind whether these statements are treated as evidence in the case or are treated as matter which may be taken into consideration under Section 30 of the Evidence Act. The substantial distinction which the Courts have insisted upon that the matter (or evidence) which may be taken into consideration under Section 30 of the Evidence Act stands on a different footing from the other evidence in the case. No matter, which can be taken into consideration only under S. 30, if there is no evidence other than such matter, can form the basis of a legal conviction. I understand this to be the effect of the rulings to which I shall presently refer.

17. The Madras High Court has consistently adapted this view almost ever since the passing of the Evidence Act: see the Proceedings dated 24th January 1873 (3); Reg. v. Amhigara Hulagu (4); In re Giddigadu (5).

18. A Full Bench of the Calcutta High Court, so far back as 1878, accepted this view in the case of Empress v. Ashootosh Chuckerbutty . The same conclusion has been expressed in the recent case of Emperor v. Lalit Mohan Chukerbutty (Noni Gopal Gupta) (6) by Jenkins, C.J, follows:

“The language of the section is guarded and the history of this Act leaves me in no doubt that this section was designedly framed in these terms. While admissions, a word which embraces confessions, are by S. 21 relevant and may be proved as against the person making them, all that S. 30 provides is that the Court may take them into consideration as against other persons. This distinction of language is significant and it appears to me that its true effect is that the Court can only treat a confession as lending assurance to other evidence against a co-accused. Thus to illustrate my meaning in the view I take a conviction on the confession of a co-accused alone would be bad in law. This reading of the section appears to me to gain confirmation from the language of S. 5.”

19. The Allahabad High Court also accepted this view in Empress v. Bhawant (7) and Queen-Empress v. Nirmal Das (8). It was suggested in the course of the argument that the Allahabad High Court has dissented from the view in the case of Emperor v. Kehri (9). In this case no reference is made to Nirmal Das' case and as I read the judgments, I think that the observations of the learned Judges expressing their dissent from the view of law taken in the Calcutta Full Bench case were not necessary for the decision of the case. At any rate the fact remains that the Allahabad High Court has not definitely dissented from the views accepted by it in Nirmal Das' Case .

20. So far as this Court is concerned it has consistently taken the view which has found favour with the Calcutta and Madras High Courts: see Reg. v. Timava (10) and Queen-Empress v. Khandia bin Pandu . So far as I know this Court has never allowed a conviction based entirely upon the confession of co-accused to stand. It was argued by the Government Pleader that the judgment in the Nasik Conspiracy case is not consistent with this view. I do not find anything in that judgment which can be said to be in conflict with the rulings of this Court. It shows that the confessions of accused were considered against other accused under S. 30 either as evidence or matter which may be taken into consideration under the said section. The question whether the confessions of co-accused when taken into consideration under S. 30 could form the basis of a conviction in the absence of other evidence in the case apparently did not arise and was not considered in that case.

21. By the decisions of this Court I am bound. I may add however that I entirely agree with the decisions which broadly speaking accept the view adopted by this Court. In my opinion they lay down a safe and sound rule that no conviction based only upon matter which can be taken into consideration under S. 30 is good in law.

22. There is one more consideration to which I may advert. It is a significant fact that though by Act 3 of 1891 a proviso was added to S. 30 with a view to get rid of the effect of certain rulings such as Reg. v. Amrita Govinda (11) and Badi v. Queen Empress (12) nothing was done then nor has anything been done thereafter by the legislature to get rid of the effect of the rulings on this point by adding any proviso to that section or by adding appropriate words to Section 133 of the Evidence Act.

23. I do not consider it necessary to refer to the law relating to the evidence of an accomplice in connexion with this point. I may however add that Illus. (b) to S. 114, in my opinion, refers to the testimony of an accomplice. The bther illustrations qualifying Illus. (b) also have reference to such testimony and have no bearing whatever on the present question relating to the confessions of co-accused to be taken into consideration under S. 30.

24. In this case there being no other evidence tending to the convictions of these appellants and the confessions of the co-accused being insufficient by themselves to justify these convictions I would allow this appeal.

25. Assuming for the sake of argument however that the confessions of the co-accused may form the basis of a legal conviction, I have to consider whether the confessions of the co-accused in this case corroborate one another in material particulars and prove beyond reasonable doubt that the appellants took part in the dacoity. The confessions to be considered are made by accused 1 before the Committing Magistrate, by accused 2 and 5 before a Third Class Magistrate and adhered to before the Committing Magistrate, and by accused 3, 6, 7 and 8 before a Third Class Magistrate. Accused 3, 6, 7 and 8 retracted their confessions before the Committing Magistrate and adhered to their retractions in the Sessions Court. The other accused 1, 2 and 5 have retracted their confessions in the Sessions Court.

26. In the first place, as all the confessions are retracted, it is most unsafe to place any reliance on them against the co-accused. Secondly, it is clear in this case that these several accused were not arrested on the spot and the account which they give in their respective confessions is not an account given soon after the occurrence. If the dates on which these several accused were arrested, when they were brought to Islampur, and when all of them except No. 1 were taken to the Third Class Magistrate for having their confessions recorded, be carefully examined, it is clear that there is no guarantee in the present case that all the accused were kept separate and that they gave their accounts independently of one another. From the accounts which they give of the occurrence, and particularly of the persons who took part in the dacoity, I am unable to say that, previous concert is highly improbable. None of these confessing co-accused is entitled to any particular consideration on the score of good character. In fact none of the conditions contemplated in the illustrations qualifying Illus. (b) to S. 114 is found to exist in the present case.

27. Further these statements have not been and cannot be tested by cross-examination and are not made on oath. I am unable to agree with the learned Sessions Judge when he says that in this case he has no doubt that any degree of cross-examination would only have confirmed the truth of the confessions. This is an assumption which ibis easy to make but difficult to substantiate. I, for my part, am unable to say that cross-examination would hive only confirmed the truth of the statements in this particular case.

28. Having regard to all these considerations, I am unable to place any reliance upon the confessions of the co-accused so far as they implicate persons other than those making the confessions. I do not consider it necessary to enter into a detailed consideration of these statements. After considering them carefully, I feel clear that they fail to establish, beyond reasonable doubt, that the present appellants took part in the dacoity.

29. I am of opinion therefore that the convictions and sentences should be set aside and the appellants (i.e, accused 4, 9, 10 and 11) acquitted.

30. (Owing to difference of opinion the case was laid before Macleod, J., who delivered the following judgment).

Macleod, J.:— In this case eleven persons were tried jointly before the Sessions Judge of Bijapur sitting with assessors on a charge of dacoity. All were found guilty and sentenced to various terms of imprisonment.

31. Accused 4, 9, 10 and 11 preferred an appeal to the High Court which was heard by Heaton and Shah, JJ. The learned Judged having differed, the appeal has been referred to me for final decision.

32. It is admitted that there is nothing on the record which can be said to implicate the appellants in the dacoity, which undoubtedly was committed on 18/19th January 1913, except the confessions of the other seven persons who were tried jointly with the appellants. No. 1 confessed before the Committing Magistrate, Nos. 2 and 5 confessed before the Third Class Magistrate and the Committing Magistrate; Nos. 3, 6, 7 and 8 confessed before the Third Class Magistrate but retracted their confessions before the Committing Magistrate. Before the Sessions Judge, all confessions were refracted.

33. Section 30 of the Evidence Act, is as follows:

“When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.”

34. It seams surprising that this section which has given rise to so much discussion, so much conflict of judicial opinion as to its real meaning, should have continued to exist without amendment.

35. The confessions made by the co-accused affecting themselves and the appellants having been proved, the Court was entitled to take them into consideration as against the appellants.

36. It seems to me immaterial whether such a confession is called “evidence” or “matter.” If anything that a Court may take into consideration to enable it to come to a conclusion whether the guilt of an accused person is proved, can be called evidence, then the confession is evidence, but that part of it which affects another accused is not evidence as defined by the Act, and the fact that it is included in the Magistrate's record of what the confessing accused admitted against himself, which is relevant, in my opinion, makes no difference.

37. It has been argued for the appellants that as a matter of law the Court could not convict on these confessions standing by themselves, that the confessions referred to in S. 30 must be un-retracted confessions, and that in any event the section must be read as if it said that the confessions might only be taken into consideration along with other evidence against the accused.

38. I do not think that “confession” in S. 30 can be restricted to an unretracted confession, as once a confession is proved it may be taken into consideration. Nor do I think that words can be read into the section when there is nothing in the section to fetter the discretion of the Court, or that there is anything in the section itself which prevents a Court from convicting after taking the confession into consideration.

39. But I do think that the High Courts in India have, as they are clearly entitled to do, laid down rules of practice which deserve all the reverence of law, so that they ought to be observed by Judges when exercising their discretion under S. 30.

40. It was decided in this Court in Queen Empress v. Khandia bin Pandu that a conviction founded solely on the confessions of co-accused could not be sustained. My brother Heaton has declined to follow that decision because the ratio decidendi was that the confessions of the accused were not technically evidence within the definition of S. 3 of the Act, and this Court has since then repeatedly held that such confessions were evidence. But as I have already stated, if these confessions can be called evidence, it can only be by using the word “evidence” in a wider sense as meaning “any matter which the Court may take into consideration.”

41. In my opinion, this decision laid down a definite rule of practice and not having been reversed by any later decision it is binding on me. The confession of a co-accused stands on quite a different footing to the testi-money of an accomplice, which the Evidence Act treats as having a higher probative value than similar evidence has according to English law. In England, it is a rule of practice that Judges should direct a jury to acquit unless they consider that the testimony of an accomplice is corroborated in material particulars by independent evidence. In India, a Judge is entitled to direct a jury that they may convict on the testimony of an accomplice without corroboration if they believe it, provided they are duly cautioned. Again the testimony of an accomplice may be corroborated by the accounts given by other accomplices, S. 114, Illus. (b): whereas in England the corroboration must be by independent evidence.

42. In my opinion, a Judge sitting with assessors ought never to convict an accused solely on the confession of a co-accused, since he has no materials before him to enable him to decide whether as against the accused it is true or false. If he is sitting with a jury he, has a discretion, either to withdraw the confession from the jury, or to put it before them with the discretion that they ought to acquit unless it is corroborated in material particulars by independent evidence. It has been contended by the prosecution that seven co-accused in this case have made confessions before a Magistrate, affecting themselves and the appellants, and that, therefore, each confession has been corroborated by the others. I agree with my brother Shah, that S. 114, illus. (b), only applies to the testimony of an accomplice given on oath before the Court and not to confessions before a Magistrate. Once it is laid down that a Court ought not to convict on the confession of the co-accused, it follows that it ought not to convict, however many of the co-accused have confessed. I agree with my brother Shah that the convictions and sentences should be set aside and the appellants acquitted.

43. Rupees 240 taken from accused 4 to be returned to him.

G.P/R.K

44. Appeal allowed.

Gangapa Kardepa And Others Accused v. Emperor Opposite Party.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Prosecution / Government Pleader

Defence / Appellants

Table of Precedents Cited

Court's Reasoning and Analysis

Heaton, J. — Analysis and Reasoning

Shah, J. — Analysis and Reasoning

Macleod, J. — Final Decision and Reasoning

Holding and Implications

Gangapa Kardepa And Others Accused v. Emperor Opposite Party.

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