(Delivered by The Chief Justice).
On the 11th February 1943, in Ordinance Case No. 1 of 1942, the appellants were convicted by the Special Judge of Madura on charges which will be indicated presently and sentenced to terms of imprisonment. The Special Judge was appointed under the provisions of the Special Criminal Courts Ordinance, 1942. On the 5th June 1943 that Ordinance was cancelled by the Special Criminal Courts (Repeal) Ordinance, 1943, but S. 3 of the repealing Ordinance provided that a sentence already passed under the repealed Ordinance should continue to have effect as if the trial had been held in accordance with the Criminal Procedure Code and gave a right of appeal. These appeals have been filed under S. 3 of the later Ordinance, and have been placed before a Bench of three Judges as important questions under the Indian Evidence Act arise.
On the evening of Friday, the 23rd October 1942, Rao Sahib Viswanatha Nayar, Circle Inspector of Police in Madura, visited the Sri Minakshi temple for the purpose of worship. It was his practice to worship at this temple every Friday. On this occasion he was accompanied by Police Constable Palaniappan and a friend named Kumara Menon. They arrived at the temple at about 7-30 P.M and after worshipping at two shrines they proposed to leave by the gateway under the southern tower. To gain access to the street from this gateway they had to mount a flight of stone steps. As they were emerging, corrosive acid was thrown at them and loud explosions occurred. Acid fell on all of them and they all suffered grievous hurt. The Circle Inspector received the most serious injuries and was in hospital for nearly twelve months. The attack was so sudden and was of such a nature that the victims were not able to observe who their assailants were.
On the 30th October 1942 the police arrested eleven persons whom they suspected of being implicated in the outrage. One of them was a student named H. Krishnamoorthi, who subsequently was granted a pardon and gave evidence in support of the case for the prosecution. The other ten persons appeared at the trial as accused 1 to 10 respectively. Five other persons were arrested later and one surrendered himself. They appeared at the trial as accused 11 to 16 respectively. The Special Judge discharged the first, fourth, fourteenth and fifteenth accused under S. 253, Criminal Procedure Code, and acquitted the fifth, sixth, eighth, tenth, eleventh and twelfth accused. The second, third, seventh, ninth and sixteenth accused were found guilty under S. 120-B, Indian Penal Code, of criminal conspiracy to cause grievous hurt to the Circle Inspector. The second and third accused were sentenced to undergo seven years rigorous imprisonment and the seventh, ninth and sixteenth accused to undergo five years rigorous imprisonment. The third accused was also convicted under S. 5 of the Explosive Substances Act, 1908 and was sentenced to three years rigorous imprisonment. In addition to his conviction under S. 120-B the seventh accused was convicted under S. 147, under Ss. 326 and 333 read with S. 149, on two other charges under S. 326 read with S. 149 and under R. 34(6)(c) of the Defence of India Rules. He was sentenced on each of these charges to undergo five years rigorous imprisonment. The ninth and sixteenth accused were also convicted under these sections and under S. 5 of the Explosive Substances Act. Their sentences were the same, except that in respect of the conviction under the Explosive Substances Act the sentence was of three years rigorous imprisonment. The thirteenth accused was merely found guilty of an offence under S. 5 of the Explosive Substances Act and ordered to undergo three years rigorous imprisonment. Where more than one sentence was imposed the Special Judge directed that the sentences should run concurrently. The Penalties (Enhancement) Ordinance, 1942, was invoked where the Penal Code did not provide for the penalty imposed. The second and third accused are the appellants in Appeal No. 412 of 1943; the ninth accused in Appeal No. 413 and the seventh, thirteenth and sixteenth accused in Appeal No. 450. Learned Counsel for the appellants have not criticised in any way the charges as framed or the sentences passed. They have confined their arguments entirely to the broad question whether the evidence on the record justifies the conclusion that their clients were concerned in the outrage.
The Special Judge based the convictions of all the appellants, except the thirteenth accused, on the evidence of the approver. In doing so he indicated that he was fully alive to the fact that usually it is unsafe to base a conviction on the uncorroborated testimony of an approver and to the rule of practice requiring corroboration, but he was convinced that so far as these accused were concerned the approver was speaking the truth. An approver's evidence is admissible under the Indian Evidence Act and if accepted is sufficient to support a conviction, but whether it should be accepted without corroboration is quite a different matter. It may be taken that unless the case is a very exceptional one an accomplice's evidence should not be accepted as being sufficient. S. 114 Evidence Act contains two illustrations indicating when it may be accepted, but neither of them applies here. If there were no evidence on the record of a corroborative nature, the decision of the Special Judge so far as the appellants are concerned might be open to question, but we consider that the record does provide support, and in sufficient measure, for the approver's testimony in so far as the second, third, seventh, ninth and sixteenth accused are concerned. The conviction of the thirteenth accused under the Explosive Substances Act is not based on the approver's testimony and falls to be considered separately.
After their arrest on the 30th October 1942, the accused 1 to 10 and the approver signified their willingness to make statements. In consequence on the 31st October 1942 they were taken before Mr. Felix, the Taluk Magistrate, Madura, who was empowered to record statements under S. 164, Criminal Procedure Code. He warned them that they were not bound to make any statements, but if they did desire to do so their statements would be used in evidence against them. He decided that they could have time until the next day for reflection. Accordingly he remanded them to the District Jail to prevent them being influenced in the meantime. At 11 A.M on the 1st November 1942 they were all brought before him again. He sent the escort away and kept the accused in his Court hall in the custody of his peon. He then told them that they could make statements at 1 P.M if they so desired. At that hour, he called the accused one by one and recorded what they had to say. The third and the ninth accused and the approver confessed to having been parties to the conspiracy. All the other accused denied participation in the crime. There can be no doubt that the Magistrate took every precaution to ensure that the statements should be made voluntarily. At the trial the third and ninth accused retracted their confessions and alleged that they had been beaten and tutored by the police, but until then they had made no complaint. After the charges were framed the prosecution witnesses were recalled for cross-examination, but again no suggestion was made of inducement, ill-treatment or coercion. It may be added that in answer to questions put by the Magistrate before he recorded the confessions of the approver and the third and ninth accused they were all very emphatic with regard to the voluntary nature of their proposed statements. The Special Judge refused to place any reliance on the confessions of the third and ninth accused, but we consider that here he erred.
We will now examine the evidence of the approver and what the third and ninth accused stated in their confessions in so far as they are relevant to these appeals. In 1942 the approver was a student of the first year class in the Madura College. His evidence may be summarised as follows:—He was in the habit of visiting an Air Raid Precaution Post where those present used to discuss the political situation. In the course of the discussions those taking part in them thought that the Circle Inspector had misused his powers in dealing with the civil disobedience movement and that he should be taught a lesson. About ten or fifteen days before the 23rd October 1942 the second accused asked the third accused to prepare acid and crackers for an attack on the Circle Inspector. The acid was to be thrown on him and the crackers were to be used for creating panic among the public in order to help the persons throwing the acid to escape. He himself was present at this conversation as were the seventh and ninth accused. They all agreed to the proposal. At 3 P.M on the 23rd October 1942, the day of the outrage, he met the third accused at the Air Raid Precaution post. The third accused handed over to the ninth accused two crackers and a bulb containing acid. While they were there the eleventh and twelfth accused came in and the third accused handed to each of them a basket, but the witness did not know what the basket contained. The third accused asked all the four to go to the Minakshi temple at 7 P.M From the post the witness and the ninth accused went to the room of one Narayana, who is now absconding, and there met the sixteenth accused and Narayana. Then the ninth accused handed over a cracker to Narayana and one to the sixteenth accused. To the witness he handed a bulb containing acid. The third accused had told him that he should take the bulb to the temple and hand it over to the seventh accused when he asked for it. The third accused had asked the ninth accused to hand over the crackers to Narayana and the sixteenth accused with instructions to fire them after the acid had been thrown at the Circle Inspector. The witness went to the temple about 7 P.M and about 8-30 P.M he met one Ettappan, and the eleventh, twelfth and thirteenth accused, who were standing or wandering about the temple. He saw the Circle Inspector approach and walking in front of him was the ninth accused, who disappeared when he got to the gateway. Twenty or twentyfive minutes later he heard two explosions and he thought that “the occurrence” was over. Five minutes later the seventh accused came running to him at the gateway and he handed over the bulb to him. The seventh accused said everything was over and that they should “secure” in the Kalyana Mantapam of the temple the bulb and the bottle which the seventh accused had with him. The next day the third accused came to him and paid him Rs. 10. During the fifteen days which preceded the 23rd October he met the second accused at the Air Raid Precaution post on several occasions.
It is of importance that a bottle containing acid and a broken bulb were found the next day in front of the Kalyana Mantapam.
In his confession the third accused said that ten or twelve days before the incident the second and seventh accused and he had a conversation at the Air Raid Precaution post when they considered the question of an attack on the Circle Inspector, but it was not then decided what should be done. On the day before the outrage he met the second, seventh, ninth, eleventh and twelfth accused when the second accused spoke of an arrangement made for throwing “onion bombs” (crackers) on the Circle Inspector. At noon on the day of the outrage he received eleven onion bombs from the seventh accused which he distributed, the seventh accused receiving one and the ninth accused receiving two. At 2 P.M it was decided that acid should be thrown upon the Circle Inspector and the bombs used for creating diversion. He had Rs. 3 with him and he handed this to the seventh accused for the purchase of acid. The seventh accused purchased nitric acid with the money. Four days before he (the third accused) had received some sulphuric acid. He mixed this with the nitric acid and put the liquid into two bottles, one of which he gave to the seventh accused. He denied being present at the temple and alleged that he was on duty at the Air Raid Precaution post that night.
In his confession the ninth accused said that he returned to Madura from Lalgudi on the 22nd October and that evening he and the approver went to the Air Raid Precaution post where he met the second and third accused. The third accused told him that they were going to pour acid on the Circle Inspector and asked him to walk in advance of the Circle Inspector when he was coming out of the temple. He also asked him to engage two persons and to give to each one of them an “onion bomb” which were to be thrown on to the ground immediately after the acid was poured on the Circle Inspector. He visited the Air Raid Precaution post at 3 P.M on the 23rd October and there received two onion bombs. On this occasion the third accused handed over a bulb of acid to the approver. At 7 P.M on the 23rd October he went to the temple with the approver, sixteenth accused and Narayana. The seventh accused and others were there. He himself did not actually participate in the outrage. When he heard the explosion he got terrified and ran home.
The evidence of the approver and the confessions of the third and ninth accused vary in some respects and as is to be expected each has endeavoured to minimize his own share in the crime. The statement of the approver that he heard the explosion twenty or twentyfive minutes after he saw the Circle Inspector approaching the southern exit is obviously an exaggeration. But this does not mean that the approver's evidence that the second, third, seventh, ninth and sixteenth accused were parties to the conspiracy is untrue or that the confessions of the third and ninth accused cannot be used against them or under S. 30 of the Evidence Act.
In In re Kesava Pillai (1) this Court held that a conviction can be based on a retracted confession, without corroboration, if the reasons given by the accused for withdrawing the confession are palpably false. We have no doubt that the reasons given for the withdrawal of the confessions of the third and ninth accused are false and consequently we consider that the convictions of the third and ninth accused can be upheld on their own confessions, but in addition there is the approver's evidence which implicates both of them. Read together, the confessions and the approver's evidence provide ample material for the conviction of the third and ninth accused.
The case against the second and the sixteenth accused rests on the approver's evidence and the confessions of the third and ninth accused. In Giddigadu v. Emperor (2) this Court following earlier decisions, held that the confession of a co-accused is in itself insufficient to base a conviction of another person and that S. 30 only provides that such a confession is an element in the consideration of the facts of the case. We agree that a conviction should not be based merely on the confession of a co-accused. Other Courts have considered this section and have arrived at similar conclusions. The decisions have been correctly summarised in Woodroffe and Ameer Ali's Law of Evidence (ninth edition page 312) as follows:
“These words (the words ‘take into consideration’) do not mean that the confession is to have the force of sworn evidence. But such a confession is nevertheless evidence in the sense that it is matter which the Court, before whom it is made, may take into consideration in order to determine whether the issue of guilt is proved or not. The wording, however, of this section (which is an exception) shows that such a confession is merely to be an element in the consideration of all the facts of the case; while allowing it to be so considered, it does not do away with the necessity of other evidence.”
In our judgment S. 30 entitles the Court to take into consideration the confessions of the third and the ninth accused in deciding whether it is safe to rely on the approver's evidence so far as it concerns the second and the sixteenth accused, and when taken into consideration we are of the opinion that they indicate its truth. At no stage of the proceedings has it been suggested that the approver, or the third and the ninth accused, had any motive for bringing a false accusation against either the second or the sixteenth accused or in fact against any of the appellants and as the confessions agree with the approver's testimony that they were members of the conspiracy we hold that they were rightly convicted.
The case against the seventh accused is even stronger. In addition to the evidence of the approver, viewed in the light of the confessions of the third and the ninth accused, there is the evidence of Dr. Mathew, who examined the seventh accused on the 31st October, 1942. He found that there was brownish discolouration of the skin on the left index finger with pus formation beneath the skin. The injury appeared to be a week old and to have been caused by some acid substance. According to the approver the seventh accused came running up to him after the explosion. Is it not a legitimate inference that this injury was caused at the time of the outrage? We think that it is.
The only case which remains to be considered is that of the thirteenth accused, who has been sentenced under S. 5 of the Explosive Substances Act, 1908. In a statement made under S. 162, Criminal Procedure Code, the thirteenth accused said that after the occurrence he met the twelfth accused at the Air Raid Precaution post in South Veli Street, Madura, and there the twelfth accused gave him a bulb filled with acid and three onion bombs which he asked him to bury. Accordingly he buried them in a vacant site south of the Pandi Vinayakar temple lane. Having offered to point out the spot, he was taken to the place by Inspector Ganapathi Nadar (P.W 23) and himself dug up the bulb containing acid and three crackers. Learned Counsel for the thirteenth accused has been unable to advance any reason for asking us to reverse the decision of the Special Judge. This evidence is obviously sufficient to support the conviction under S. 5 of the Explosive Substances Act, and it must be upheld.
For the reasons given the appeals will be dismissed.
N.R.R