Emperor v. Sabitkhan Bahadurkhan Accused.

Heaton, J.:— Three men were tried for warder by the Sessions Judge of Kanara with assessors. He convicted two of them, accuseds 2 and 3, and acquitted Sabitkhan valad Bahadurkhan who is accused 1 in the case. The convicted accused appealed and their appeals were dismissed by this Court some time ago. The Government of Bombay have appealed against the acquittal of Sabitkhan and that is the appeal now before us, My learned brother and myself are unable to agree as to disposal of this appeal and therefore the matter will, as required by section 429 of the cr pc., have to be laid before another Judge of this Court.

2. In dealing with the appeal against the acquittal, we have to consider the evidence in the case and there are also confessions made by accuseds 2 and 3. On the strength of that evidence and those confessions and also the decision of this Court in the appeals of accuseds 2, and 3, there is no doubt that those accused did take part in the murder of Mahammadkhan. If we assume that Mahammadkhan was murdered shortly after leaving his village of Alkerry on or about 25th-September last, by accuseds 2 and 3 and possibly one or more others, and if we then believe all the circumstances deposed to by the witnesses, it follows as natural, though not perhaps as an inevitable inference, that Sabitkhan also took part in the murder. But for this we must believe all the incidents deposed to. These incidents are set out by the Sessions Judge as follows: “Now this Mahammad was a bachelor; but he had a younger brother, named Sabitkhan, who had a wife and family and was penniless. This Sabitkhan conceived himself to have a claim upon the generosity and good offices of his elder brother; and this claim he urged with importunity, both in season and out of season.

“Mahammad khan did not take the same view of an elder brother's obligations. It was his opinion that Sabitkhan should earn his own living and he asked the Ranger to give the same advice. Many of the villagers have heard the brothers' quarrel. Last year the feast of Ganesh Chaturthi came to an end upon 24th September. It was at this feast that Mahammadkhan was last seen alive. The man was then in poor health. He intended to go to Calgutgie for a cure: and he invited one Bussia, Ex. 8, who was thought to be suffering from the same malady, to bear him company, Bussia was willing and he agreed to go. But that same evening Sabitkhan sought out this Bussia and dissuaded him from the undertaking. ‘I myself will fetch you physic’, said Sabitkhan: and Bussia, willing to be spared the labour of a long journey, renounce his project, and allowed Mahammadkhan to take the road alone. This Bussia saw Sibitkhan, who is accused 1, going next morning along the road which Mahammadkhan was to take and with him went the other two prisoners. Half an hour later he saw Mahammadkhan go the same way. Mahammadkhan was never seen alive again. It is a lonely road.

“Time went on, and Mahammadkhan did not return. He had been expected in a few days; but neither he came nor any word of him. But Sabitkhan opened his granary; and he was seen two, three or four times giving grain to his two fellows, accuseds 2 and 3. Juncu saw him do this (Ex. 9): and so did Bay Munna. Now Day Munna had been asked by Mahammadkhan to keep an eye upon that grain: and accordingly he asked of Sabitkhan what he was doing with that rice. But Sabit bade him mind his own business (Ex. 10). When the time came for the tenants to pay their rents, Sabitkhan began to demand that these payments should be made to him. But the tenants had never been used to pay Mahammadkhan's rents to Sabit, and they had no mind to begin. They asked of Sabit by what authority he made these demands: and by-and-bye there came for Sabit a letter, which was read for him by Anant Paund Pie. This letter purported to be an authority to Sabit to collect rents: but it was neither dated nor signed: and it was not in the handwriting of Mahammadkhan. Anant Paund Pie knows the writing of Mahammadkhan, and he had very grave doubts of that letter. He asked the Postmaster to examine the post mark, but the mark was indecipherable.”

3. To accept all this is to put something of a strain on one's power of belief, for though there is no reason to suspect concoction of evidence in this case or to suppose that the witnesses are consciously untruthful, one must be reasonably cautious. No doubt the villagers of Alkerry came to suspect Sabitkhan and that suspicion would colour what they recollected of his doings. For this reason for example, ‘the witness Bussia might in his recollections confuse the day Mahammadkhan was last seen alive with some other day on which he had seen three accused, or three men he came to believe were the three accused, go together into the forest. Similarly he might attribute too much importance to some innocent opposition by Sabitkhan to a suggestion that Bussia should accompany Mahammadkhan. Then recollection of the contents of a better is a notoriously uncertain thing; so far too much may be made by the Postmaster and Anant of the letter that came for Sabitkhan. Nevertheless the hypothetical jury we are so fund of appealing to, might convict Sabitkhan on this testimony. The Sessions Judge however would not; nor so far as I can Judge, would I myself. But accuseds 2 and 3 in their confessions both implicated Sabitkhan in the murder. Does that make any difference? As a matter of appreciation of evidence it certainly may do. When I myself read these confessions, two of which were made before the committing Magistrate and two at an earlier stage, and compare and consider them and take them together with the evidence. I arrive at a positive conviction that Sabitkhan did join in the murder. The two assessors in the case and also the Sessions Judge arrived at the same conclusion. But the fatter felt himself to be bound as a matter of law to acquit Sabitkhan because the conclusion that he was really guilty was based, to too great an extent on the confessions of the co-accused. For my oven part I think he was wrong, though I quite see the force of the Sessions Judge's reasoning. To me it seems that the matter stands thus. The rule is that a man is not to be convicted solely on the confessions of co-accused persons; and it follows that he must not be convicted on such confessions together with evidence of the ordinary kind which is trivial or unimportant. For so to convict him would be in reality to disregard the rule. But in this case we have apart from the confessions, a body of evidence and circumstances enough to support a conviction, if the evidence is accepted as free from untruth or exaggeration or serious mistake or distortion. Therefore we are entitled to take the confessions into consideration and in doing so we must consider together the evidence, the circumstances and the confessions. We should not, it seems to me, divide the material into compartments and say the confessions of themselves are insufficient, the evidence is not altogether convincing and therefore we must acquit. It is not, as I look at it, a case of the weakest link in a chain.

4. Dealing with all the material before us the position to my mind is this: the hypothesis that Sabitkhan designed and joined in the murder explains everything. There is not a single circumstance apparent which it fails to explain. This hypothesis also is not confronted with any serious difficulties. It is not against the probabilities. The evidence and confessions do not bear the impress of falseness. Then there is no alternative hypothesis which so completely and convincingly explains matters. This cannot be a case of mistaken identity. It is not in my judgment a case in which malice has been at work and has fabricated or distorted the evidence. The only possible alternative hypothesis, so far as I can see, is that suspicion has caused the witnesses unconsciously to distort or exaggerate circumstances innocent in them selves; and that it is possible that the confessing co-accused have introduced the name of Sabitkhan in order to lighten their own responsibility. This hypothesis I find myself unable to regard as one for which any fair basis can be found in the known circumstances of the case.

5. Therefore I think the accused Sabitkhan should be convicted of murder. The appropriate sentence would be death, but when one Judge of this Court is not satisfied, though two Judges are satisfied of a man's guilt, the lesser sentence of transportation for life may, in my opinion, be properly imposed.

Shah, J.:— This is an appeal by the Government of Bombay against the acquittal of Sabitkhan walad Bihadurkhan, who was accused 1 in the trial Court. He was tried along with two others by the Sessions Judge of Kanara with the aid of assessors on a charge of murder. The charge was that all the three accused murdered the deceased Mahammadkhan on or about 25th September 1917 at about 8 or 9 a.m at Alkeri in the jungle.

6. The assessors were of opinion that all the accused were guilty. The learned Sessions Judge agreed with them as to accuseds 2 and 3 and accordingly convicted them and sentenced them to transportation for life. He however felt himself constrained to differ from them as to accused 1, whom he acquitted. The appeal by accuseds 2 and 3 to this Courts against their convictions was summarily dismissed in August last.

7. The question in this appeal from acquittal is whether accused 1 is proved to be one of the murderers. The case for the prosecution is that the relations between the two brothers, accused 1 and the deceased Mahammadkhan, were considerably strained, and that with a view to secure the peoperty of Mahammadkhan accused 1 arranged to obtain the assistance of accuseds 2 and 8 and that all the three murdered him on the morning of 25th September 1917 while he was going alone on the way from Alkeri to Kirvatty. Mahammadkhan had no wife and go children. He owned lands in Alkeri and was a man of means. His brother accused 1 had a wife and children. He used to work as a coolie in the Forest Department not with regularity and he had no other means of livelihood. He used to ask Mahammadkhan to help him; but the latter expected him to work and earn his livelihood and would not help him. On this account their relations were strained. They lived separately at Alkeri. Mihammadkhan did not return to the village, and some days after 25th September accused 1 commenced to meddle with the property of his brother, apparently made no inquiry about him, and gave unsatisfactory and evasive answers about his whereabouts. He received a letter soma time in February in 1918, which was supposed to have been written to him by his brother. Ultimately on 31st March, the Range Forest Officer informed the Police Sub-Inspector who arrived on the scene on 1st April when he found accuseds 2 and 3 ready to point out the place where the dead body of Mahammakhan was buried and to confess. The Sub-Inspector wrote to the Magistrate and Mamlatdar of Yellapur, who arrived on 2nd April. Accuseds 2 and 3 pointed out the place where the dead body of Mahammadkhan was buried, and confessed that they and accused 1 had murdered him. All the accused were arrested on. 2nd April. The confessions of accuseds 2 and 3 were recorded on 3rd April; and they adhered to the confessions in their statements before the committing Magistrate on the 26th April. They retracted their confessions and previous statements at the trial before the Sessions Court. The result of the trial is already stated. It is not disputed now, and it is indisputable, that Mahammadkhan was murdered; and it must be taken for the purpose of this appeal that accuseds 2 and 3 were concerned in the murder. The learned Sessions Judge reluctantly acquitted accused 1 as the evidence outside the confessions of the co-accused was weak as regards him, and as his conviction could not be based principally on the confessions of the co-accused.

8. On a consideration of the evidence in the case and the confessions of the co-accused, I am of opinion that the conviction of accused 1, if at all, must rest principally upon the confessions of the co-accused. I think such a conviction would be neither legal nor proper, I do not consider it necessary to discuss in this appeal the value of the confessions of the accused as a matter which may be taken into consideration against the co-accused under Section 30 of the Evidence Act. I have stated my opinion with reasons in Emperor v. Gangapa Kardepa (1) on that point. It will serve no useful purpose to repeat the same here. I only desire to state that the limitation laid down as to the use to be made of the confessions of the accused against a co-accused is not created by the High Courts, but is based upon what they hold to be the true meaning of the provisions of the Indian Evidence Act and, if I may respectfully add, upon sound sense. The rule, as I understand it, requires that before acting upon such confessions the Court should insist upon independent corroboration from other evidence in the case in material particulars, particularly as to the identity of the accused. If this rule be applied properly, personally I do not think that there would be any practical difference in the result whether the rule be accepted in the form in which I have stated it, or whether it is taken to be, as stated by Jenkins, C.J, in Emperor v. Lalit Mohan Chuckerbutty (2) that

“the Court can only treat a confession as landing assurance to other evidence against a co-accused.

9. But whether that is so or not, I am willing to take the rule in the form more favourable to the prosecution under the circumstances of this case, and to consider whether the other evidence in the case affords such independent corroboration. I also take it that there is no rule as to what would constitute sufficient independent corroboration in a particular case. That must depend upon the circumstances of that case. I desire to refer however to two considerations at the start: first, the evidence, which is supposed to afford independent corroboration, must be in itself reliable and not doubtful evidence, which is treated as reliable in consequence of the confessions; otherwise it will not be independent corroboration. Secondly, the value of the confessions of the accused against a co-accused, when those confessions are retracted at the trial, is very low, as pointed out in Yasin v. King-Emperor (3) and in Lalit Mohan's case at p. 588 (of I.L.R 38 Cal) of the report. I shall now deal with the evidence. It is urged for the Crown that the following circumstances afford independent and sufficient corroboration of the confessions of the co-accused in this case:

(1) that accused 1 dissuaded the witness Bussia from accompanying the deceased on the morning of 25th September though the witness had agreed in the first instance to go with the deceased to Devikop for treatment; (2) that accused 1 was seen going with accuseds 2 and 3 that morning on the same path followed by the deceased a short time after; (3) that the accused was on terms of enmity with his brother and in need of money and had a motive in getting rid of his brother; and (4) that his subsequent conduct in dealing with the property of the deceased, in failing to make any inquiry about him, in giving evasive and unsatisfactory replies and in receiving a letter, which must have been a forged letter, purporting to have been written by his brother, indicates a guilty knowledge of his brother's murder.

10. As regards the first two circumstances, they depend entirely upon the evidence of Bussia. His evidence is important. The learned Sessions Judge did not consider it safe to rely upon this evidence. I consider it unsafe to rely upon his testimony for the following reasons:—In the first place he is speaking of incidents which took place nearly six months before he first mentioned these matters to any one and the incidents in themselves are so ordinary that he would not be expected to remember them. Secondly, he does not appear to me to be a witness who can be credited with anything like clear and reliable memory; he mentions his age as eight or nine when he is probably 25 years old. Thirdly, it does not appear from the record as to when and how this evidence came to be known to the investigating officer for the first time, which is a matter of importance under the circumstances. Lastly, he does not appear to have asked accused 1 for the cure which he is said to have promised to procure for him at the time of dissuading him, nor does he appear to have shown any concern for a long time after the disappearance of Mahammadkhan even though, if his evidence were true, he would be clearly interested in knowing whether the treatment which he at one time wanted to have, had done Mahammadkhan any good. I must therefore hold that the first two circumstances relied upon as affording an independent corroboration to the confessions are not proved.

11. The other circumstances relating to motive and conduct generally speaking are proved. There is reliable evidence that the relations of the two brothers were strained and that accused 1 was in needy circumstances. As regards the subsequent conduct, though I regard the details with some suspicion, broadly speaking, the conduct attributed to him is proved. But it is easy to overrate it importance. It is the conduct of a callous and indifferent brother but not necessarily the conduct of a murderous brother. As to the letter, his conduct would be much the same if any enemy had sent him a letter of that kind or if any person interested in tracing the whereabouts of Mahammadkhan had written to him with a view to see what use he would make of the letter. Apparently he did not use the letter in any way. I am not satisfied that the circumstances justify our treating the accused to be a man of such intelligence as to be able to resort to a plan which requires so much forethought and cleverness. I have not thought it necessary to discuss the evidence on this point in detail, as taking it at its best I am satisfied that the evidence as to motive and conduct affords, neither independent nor sufficient corroboration to the confessions. It is independent in the sense that it is proved by evidence outside the confessions but the facts connected with the motive and conduct generally would be known in the village and to the people at Kiravatty who knew the two brothers: and if any one was interested in getting accuseds 2 and 3 to mention the name of accused 1 falsely or if for any reason accuseds 2 and 3 were inclined to mention his name falsely, this knowledge is just the thing, which would render the inculpation of accused 1 easy.

12. It would be plausible and apparently-credible to state that accused 1 was concerned in the murder. Accuseds 2 and 3 knew Mahammadkhan well and as they were the murderers, they would know the whole story generally: and under the circumstances the inculpation of accused. 1, even if incorrect, would be easy. It is because a false inculpation is easy, that the need for closely examining the nature of circumstances affording independent corroboration is great. It is obvious that it would be insisting upon no independent corroboration to treat matters of such common knowledge among the persons concerned as affording that kind of corroboration. In the present case the evidence as to the investigation is rather meagre or at any rate not full. We do not know as to how and when accuseds 2 and 3 were found ready to confess. Apparently accuseds 2 and 3 were found by the Sub-Inspector ready to give out the whole story. The Range Forest Officer says that he first heard the rumour that accuseds 1 and 2 and another had murdered Mahammadkhan on the 30th March. Thus we do not know when and to whom accuseds 2 and 3 first mentioned the name of accused 1, and as to who gave the information to the Range Forest Officer that accuseds, 1 and 2 and another were the murderers. Thus the circumstances under which the name of accused 1 came to be mentioned by accuseds 2 and 3 are left in obscurity. It would be very unsafe to treat the facts proved as to motive and conduct as an independent corroboration. Even treating it as affording some corroboration, I do not think it is sufficient under the circumstances. It is true that the proved circumstances in the case are consistent with the guilt of accused 1; they may create a certain amount of suspicion against accused 1; but do not prove anything as to his participation in the crime. It may be that accused 1 was concerned in the murder, but that is obviously insufficient. I have to consider whether it is proved that he was so concerned. I am of opinion that the confessions of the co-accused are not sufficiently corroborated by independent evidence and the conviction of accused 1 must therefore rest, if at all, principally upon the con fessions of the co-accused. I am clear that such a conviction would not be legal, and that in any event it would not be proper. I doubt whether the assessors could realise the limitation, subject to which the confessions could be used against co-accused; and it does not appear whether the learned Sessions Judge had explained the point to them. I am therefore unable to attach that weight to their opinion which I would do in an ordinary case.

13. The learned Sessions Judge has rightly apprehended the rule as to the value of the coufessions of the accused against a co-accused and has fairly applied it in appreciating the evidence. I am not concerned with his other observations which do not touch the conclusion in any way, but which may have a bearing upon the question whether the rule, which he felt himself bound to follow, ought to exist or not. There is only one point to which I may properly refer. While speaking of an appeal against acquittal, the learned Sessions Judge has referred to the possibility of this Court ordering a re-trial in order that accuseds 2 and 3 may be examined as witnesses now. The learned Government pleader has not asked for a re-trial. In my opinion there is no reason whatever to order a re trial. The trial was valid and proper. It was open to the Crown, if so minded, to have secured the examination of accuseds 2 and 3 as witnesses by asking for the separate trial of accused 1 at the proper time. The joint trial was not objected to: and the trial Court apparently did not think that in the interests of justice a separate trial was necessary. I would therefore dismiss the appeal.

Scott, C.J:— The case against the accused is that in concert with Honya and Umya be murdered his brother Mahammadkhan on or about 25th September 1917 about 8 or 9 in the morning in the forest near Alkeri in Kanara. Honya and Umya were tried jointly with the accused by the Sessions Judge of Kanara and two assessors. Honya and Umya were found guilty upon their own confessions, but the accused Sabitkhan was acquitted, and the Goxernment of Bombay have appealed against his acquittal.

14. The evidence before me is that which was recorded by the Sessions Judge at the joint trial. It establishes that Mahammadkhan was the owner of the most of the land and houses, only eight or nine in number, in the village Alkeri which is situated less than a mile and a half from Kirwatty, Kirwatty being on the mam road from Yellapur to Kalgutgy, and about 12 miles from the latter place. The relations between Sabitkhan and Mahammadkhan the deceased were very strained. Mahammadkhan the neither wife nor children, and was not disposed to support his brother Sabit and his family. Sabit consequently was obliged to work as a coolie in the Forest Department, and was continually importuning the deceased for assistance which was continually refused, and although the two brothers lived in the same building they did not associate and all their intercourse was unfriendly. On or about 24th of September 1917, the deceased who was suffering from pains in his stomach decided to go to Kalgutgy for treatment and requested a neighbour named Bussia in the presence of another inhabitant of Alkeri named Day Munna to accompany him, as Bussia was also suffering from pains in the stomach. On the 25th September the deceased left Alkeri in the morning alone. At all events, he was never seen after that time at Alkeri. He had left a bin of rice in front of his house upon which he had asked a neighbour Day Munna to keep an eye, saying he would be back in a few days. About a fortnight after his departure the accused began to make free with the grain. When Day Munna asked him what he was doing with the rice, Sabit asked what business it was of his.

15. According to witness Juncu, Sabit Said when asked that Mahammadkhan would not be back soon and on several occasions gave rice from the bin to Honya and Umya, the convicts at the first trial. Three months after the Ganesh Chaturthi, the accused told Boojang, a shopkeeper of Kirwatty, that Mahammadkhan had gone for medical treatment to Miraj. He began after the crops had been got in to ask the tenants of Mahammadkhan to pay their rents to him. Four months after the departure of mahammadkhan, namely, on 4th February 1918, the Ranger of the forest, having heard that Sabit was trying to collect the rents of Mahammadkhan, sent for him and asked him if he had heard from Mahammadkhan and what had become of him. He replied that Mahammadkhan had gone to Miraj and that no letter had come. Later in February at Kirwatty when Postmaster Wycunt delivered him a letter in the presence of Anant, a shopkeeper, Sabit tore it open and asked Anant to read it to him. Both Anant and Wycunt depose to the contents of the letter. Their versions are not verbally identical, but are to the same effect. The letter which was unsigned and undated purported to come from Mahammadkhan from Belgaum, and stated that he was getting better and proposed to go to Miraj. It directed Sabit to collect the rents and pay the assessment and said that if Mahammadkhan wanted money he would let Sabit know. The letter was returned to Sabit.

16. Three of the witnesses who lived at Alkeri deposed to Sabit demanding rent from them and stating that he had a letter from Mahammadkhan. At the end of March the convicts Honya and Umya disclosed a spot in the forest between Alkeri and Kirwatty in which the remains of Mahammadkhan were buried. It was found that his ribs had been broken. Bussia of Alkeri, who has already been mentioned in connexion with Mahammadkhan's proposed journey to Kalgutgy, stated that he had been persuaded by Sabit not to go with Mahammadkhan, and that on the day following, i.e the 25th September, he had, while driving cattle towards Kirwatty near the village Tank, seen Sabit together with the two other accused taking the path from Alkeri to Kirwatty, and half an hour later had seen Mahammadkhan take the same path. The muster roll kept by the Forest Officer shows that Sabit was absent from his work on 25th and following days of September. The learned Judge says he has no reason to disbelieve Bussia, but he doubts if Bussia could remember exactly the day on which he saw Sabit and the two convicts go along that path because there was no impressive concomitant circumstance. There is no doubt that Mahammadkhan never went to Belgaum and never reached Kalgutgy and that the letter opened by Sabit in Kirwatty is a false document which might explain the absence of Mahammadkhan and justify Sabit's attempts to collect his rents. If there were no other evidence in the case, and if the evidence of Bussia were discarded, it seems to me there would still be a strong case of suspicion against Sabit as being concerned in the murder of Mahammadkhan.

17. The Sessions Judge, however had before him not merely this evidence, but also the detailed confessions of Honya and Umya (who had reasons for disliking Mahammadkhan), who state that Sabit participated with them in the murder of Mahammadkhan and engaged their services on a promise of payment in grain, and that the body was buried with a spade provided by Sabit, the spade which was found in Sabit's house after the confession. These confessions must be taken in to consideration against Sabit according to the provisions of Section 30 of the Evidence Act. But the learned Judge seems to have been afflicted by a certain paralysis of his judicial faculty owing to a perusal of reported cases which lay down that a man should not be convicted upon the uncorroborated confession of his co-accused, and reading these cases in conjunction with an observation occurring in the judgment of the Calcutta High Court in the case of Emperor v. Lalit Mohan Chuckerbutty , to the effect that

“the Court can only treat a confession as lending assurance to the other evidence against a co-accused.”

18. He considers himself unable to make use of the confessions at all, because there is not a perfect enough case against the accused without them, although as he states he has no doubt whatever that the accused committed the murder. He puts it thus:

“It is not enough that the other evidence should support the confessions. It is the confessions which must support the other evidence, which ‘must afford a basis broad enough and firm enough to sustain a conviction if the superstructure be steadied by some adventitious and subsidiary prop,’ such as the confessions.”

19. The learned Judge in the above quotation from Lalit Mohan's case has omitted the concluding words:

“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.”

20. The rule which the learned Judge conceives to be binding on him is affirmed by Jackson, J., in Queen v. Chunder Bkuttacharjee (4) in this form,

“that, when, as against any such person, there is evidence tending to his conviction, the truth or completeness of this evidence being the matter in question, the circumstance of such person being implicated by the confession of one of those who are being jointly tried with him should be taken into consideration as bearing upon the truth or sufficiency of such evidence.”

21. It is also affirmed in the judgments of Jackson and McDonell, JJ., only out of the Full Bench of five Judges in Empress v. Ashootosh Chuckerbutty (5), where the third question referred was’

“Whether such a confession made by one such person may be used as the basis of proof of the offence charged as against the other, and if corroborated, may sustain a conviction or whether it is necessary, in order to sustain a conviction, to use such confession only as itself corroborative of other independent evidence.”

22. The answer of the Chief Justice to this question was:

“If the confession is corroborated by other evidence, I do not think it matters whether, in proving the case at the trial, the confession precedes the other evidence, or the other evidence precedes the confession. The course of proof in each case is a question of convenience for the prosecution; and they have a right to bring forward the evidence in any order they may think fit.”

23. This question has not, so far as I am aware, been considered in any Bombay case. The passage from the judgment in Lalit Mohan's case is only quoted by Shah, J., in Emperor v. Ganyapa Kardepa in support of the conclusion that he 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 propose to take the judgment of Garth, C.J, in Empress v. Ashootosh Chuckerbutty as a correct statement of the law: it gives effect without qualification to the words of S. 30 that

“the Court may taka into consideration such confession as against such other person as well as against the person who makes such confession.”

24. The question here is not as in Emperor v. Gangapa Kardepa , whether the Court may convict solely on the confession of a co-accused. The Sessions Judge has not done so, nor have either of the High Court Judges whose difference has led to this reference. The question is rather one of appreciation of evidence. I have to consider whether on the facts established there is corroboration of the story of the confessing co-accused so far as it affects Sabit. I will only make this further remark with regard to Emperor v. Gangapa Kardepa that I think Macleod, J., went too far when he said in that case (p. 176 of I.L.R 38 Bom.)

“The confession of a co-accused stands on quite a different footing to the testimony of an accomplice, which the Evidence Act treats as having a higher probative value than similar evidence has according to English Law,”

25. I think it will be apparent to any one who peruses the judgment of Lord Reading, L. C.J, in Rex v. Baskerville (6), that except in regard to corroboration of an accomplice by accomplice evidence there is no difference between the law in England and the law in India. As regards the confessions of co-accused the Indian law has no counterpart in England but it seems to me that for the purpose of admissibility such confessions stand on the same footing as accomplice evidence and that their weight must depend on the circumstances of each case. I propose therefore ??? apply to the question of corroboration of the confessions the same rules as are applicable to the corroboration of accomplice evidence. In Rex v. Baskerville , a criminal appeal heard by a Court of five Judges specially constituted to lay down rules for future guidance, it was said

“there are propositions of law applicable to corroboration which are beyond controversy. For example ‘confirmation does not mean that there should be independent evidence of that which the accomplice relates or his testimony would be unnecessary’ Reg v. Mullins (7). Indeed if it were required that the accomplice should be confirmed in every detail of the crime his evidence would not be essential to the case it would be merely confirmatory of other and independent testimony.”

26. In the same case it was held that

“evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him—that is which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.” “The corroboration need not be direct evidence that the accused committed the crime: it is sufficient if it is merely circumstantial evidence of his connexion with the crime. A good instance of this indirect evidence being Reg v. Birkett (8).”

27. A good Indian illustration of circumstantial evidence corroborative of the confessions of co-accused is to be found in the judgment of Phear, J., in the Queen v. Naga (9). Does then the testimony independent of the confessions affect the accused by connecting or tending to connect him with the crime? I start with the fact that Mahammadkhan was murdered and buried in the forest within a mile of his house. Evidence that when that man has been murdered and buried within a mile of his house his brother and his enemy seeking to profit by has disappearance tells a false story as to his whereabouts affirming him to have gone to Miraj a town distant 100 miles or more for medical treatment tends to connect the brother with the crime. So does evidence that the brother with has been seen on several occasions giving grain to the confessed murderers to whom he had no ostensible reason to be charitable. So does evidence that when trying to collect rents due to the murdered man he calls the tenants and tells them a false story that he has received a letter of authority from his brother.

28. No Judge who has considered the evidence has expressed a doubt as to the credibility of the witnesses who depose to these events. But the trial Judge and Shah, J., are not satisfied that Bussia can remember the day when he saw Mahammadkhan leave preceded by Sabit, Honya and Umya. Shah, J., also appears-to have doubted the story of the letter received in Kirwatty. I do not share these doubts, for the date of Mahammadkhan's departure from his village on the day after the Yansha would be known to all the resident?, and I see no reason to doubt the truth of the story told by Wycunt and Anant about the letter: it is entirely consistent with the other evidence of the false story spread by Sabit that his brother had gone to Miraj for treatment although we do not know by what agency Sabit got the letter written and sent to Kirwatty. I concur in the conclusion arrived at by Heaton, J. I find the accused guilty of the murder of Mahammadkhan and sentence him to transportation for life.

G.P/R.K

29. Appeal allowed.