Emperor v. Kalwa And Others

Walsh and Dalal, JJ.:— This is an appeal by five men who have been convicted for participation in a murder. Two of the appellants, who are unrepresented, viz., Kalwa, who confessed and whose confession has taken great prominence in the evidence at the trial and in the consideration of the case in court, and Rasila, have been condemned to death. Against them there is positive evidence, in addition to the confession of Kalwa, going to show that they were seen coming away from the scene of the crime. Bhure Singh, also unrepresented before us, has been convicted under sections 460 and 302, read with section 109 of the Indian Penal Code, and sentenced to transportation for life upon the statement of the confessing accused who testified to his presence at the commission of the crime and whose evidence against Bhure Singh is clearly corroborated in a manner impossible for the appellant to get over. The two remaining appellants, both of whom have been convicted and sentenced to transportation for life, have been found gilty of abetment, in the sense of instigation and counselling, largely also upon the direct evidence of the confession and such other circumstances as the Judge thought sufficient to justify his accepting the confession against these two men. These two men have been represented by counsel: Jagmohan by Mr. O'Neill, and Brij Narain by Sir Charles Alston, and their cases, no doubt, present some difficulty and have caused us to examine very closely the grounds upon which the learned Judge convicted them. Four other persons were also charged but acquitted, the charge against them being in substance the same as against Jagmohan and Brij Narain, namely, that they were instigators and took part in the preparation and counselling of the crime.

[The judgement proceeded with a discussion of the evidence against the appellants which it is unnecessary to report at length, but the following extract, which deals with the value to be attached to the confession of a co-accused and the corroboration required before such confession can be safely acted, upon as against the other accused, is of general importance and is reported below.]

The view we take is this that in declining to apply the legal proposition, which now has stood for many years, laid down in the case of Emperor v. Kehri, we prefer to follow the view of Chief Justice Garth, in Emperor v. Ashootosh Chukerbutty, quoted in the judgement in the case of Emperor v. Kehri, to the view taken by the members of the Court in Kehri's case. As a matter of fact, if it has not already been pointed out, it is as well to point out that in the judgement in Kehri's case in the passage where Mr. Justice Knox differs from Chief Justice Garth and, gives his reasons for so doing, he has committed himself to a misstatement of fact with reference to the confession having been made in the presence and hearing of the co-accused. We prefer to follow the old established practice,—a practice almost invariably followed throughout India even by those who accept the decision in the order against Kehri—, which is well expressed in illustration (b) to section 114 of the Evidence Act, namely, that amongst the presumptions a court may make is the presumption that an accomplice is unworthy of credit, unless he is corroborated in material particulars. That is a direction of law or of practice—it matters not which—which we ourselves should give to every jury in any case in which we had to direct them upon the law and which in matters of fact we ourselves should follow. Applying that principle to the case of Jagmohan, we accept Mr. O'Neill's contention that there is nothing in the case outside the confession pointing to his complicity in this particular crime. The existence of general enmity and a desire, however strong, or a motive however effective, to procure the death of another person may be a piece of circumstantial evidence, but is not corroboration of a sworn statement of participation in a particular crime. Corroboration must point to the identification of the person charged with the particular act with which the direct evidence connects him.