{"id":254430,"date":"1964-02-03T00:00:00","date_gmt":"1964-02-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-charan-kurmi-and-jogia-hajam-vs-state-of-bihar-on-3-february-1964"},"modified":"2016-07-10T18:08:05","modified_gmt":"2016-07-10T12:38:05","slug":"hari-charan-kurmi-and-jogia-hajam-vs-state-of-bihar-on-3-february-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-charan-kurmi-and-jogia-hajam-vs-state-of-bihar-on-3-february-1964","title":{"rendered":"Hari Charan Kurmi And Jogia Hajam vs State Of Bihar on 3 February, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hari Charan Kurmi And Jogia Hajam vs State Of Bihar on 3 February, 1964<\/div>\n
Equivalent citations: 1964 AIR 1184, 1964 SCR (6) 623<\/div>\n
Author: B P Sinha<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C., Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nHARI CHARAN KURMI AND JOGIA HAJAM\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT:\n03\/02\/1964\n\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nBENCH:\nSINHA, BHUVNESHWAR P.(CJ)\nWANCHOO, K.N.\nGUPTA, K.C. DAS\nSHAH, J.C.\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1964 AIR 1184\t\t  1964 SCR  (6) 623\n CITATOR INFO :\n R\t    1977 SC1579\t (25)\n R\t    1987 SC 955\t (10)\n\n\nACT:\nEvidence Act<\/a>-Confession of co-accused-Not \"evidence\"  within\nthe  meaning of s. 3<\/a> Evidence Act-Not  substantive  evidence\nagainst\t coaccused-Can\tbe used only to\t give  assurance  to\nconclusion of guilt based on other evidence--Sections 30 and\n133  Evidence Act-Distinction between-Indian  Evidence\tAct<\/a>,\n1872 (1 of 1872). ss. 3, 30, 133.\n\n\n\nHEADNOTE:\nThe  appellants\t along\twith  four  others  were  tried\t and\nconvicted by the Sessions Judge for the offences of  dacoity\nand  murder and sentenced to undergo imprisonment for  life.\nOn  appeal  the\t High Court  confirmed\tthe  conviction\t and\nsentence.   Pending  that  appeal  it  issued  a  rule\t for\nenhancement  of the sentence, and finally the rule was\tmade\nabsolute and they were ordered to be hanged.  The appellants\nthereupon filed the present appeals by special leave granted\nby this Court,\nThe  main point raised before this Court was that  the\tHigh\nCourt  misconceived the ambit and scope of the\tdecision  of\nthis Court in Ram Prakash v.  State of Punjab<\/a> [1959]  S.C.R.\n121  and  that the High Court committed an error in  law  in\ntreating   the\t confession  made  by  the   co-accused\t  as\nsubstantive evidence against the appellants.\nHeld:\t  (i) Though a confession mentioned in s. 30<\/a> of\t the\nIndian\tEvidence Act is not evidence as defined by s.  3<\/a>  of\nthe  _Act,  it\tis  an\telement\t which\tmay  be\t taken\tinto\nconsideration  by the criminal courts and in that sense,  it\nmay be described as evidence in a non-technical way.  But in\ndealing\t with  a case against an accused person,  the  court\ncannot start with the confession of a co-accused person,  it\nmust  begin with other evidence adduced by  the\t prosecution\nand  after  it has formed its opinion ,with  regard  to\t the\nquality\t and  effect of the said evidence, then it  is\tper-\nmissible  to  turn  to\tthe  confession\t in  order  to\tlend\nassurance to the conclusion of guilt which the judicial mind\nis about to reach on the said other evidence.\nKashmira  Singh\t v. State of Madhya Pradesh<\/a>,  [1952]  S.C.R.\n526,  Emperor v. Lalit Mohan Chukerbutty<\/a>, [1911]  I.L.R.  38\nCal. 559.  In re: Perivsswami Moopan, [1913] I.L.R. 54\tMad.\n75  and\t Bhuboni  Sahu\tv. The King<\/a>,  [1949]  76  I.A.\t147,\nfollowed.\n(ii) The distinction between evidence of an accomplice under\ns. 133 and confession tinder s. 33<\/a> Evidence Act is that\t the\nformer is evidence under s. 3<\/a> and the court may treat it  as\nsubstantive   evidence\tand  seek  corroboration  in   other\nevidence but the latter is not evidence under S. 3<\/a>, and\t the\ncourt  should first start from other evidence and then\tfind\nassurance in the confessional statement for conviction.\n624\n(iii)  The High Court was in error in taking the  view\tthat\nthe decision in Ram Prakash's case was intended to strike  a\ndissenting  note  from the  well-established  principles  in\nregard\tto the admissibility and the effect of\tconfessional\nstatement made by accused persons.\nRam   Prakash  v.  State  of  Punjab<\/a>  [1959]  S.C.R.   1219,\nexplained.\n(iv) On\t examining the evidence in the present case  on\t the\nabove  principles  it is found that there is  no  sufficient\nevidence to prove the prosecution case.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals Nos.\t 208
\nand 209 of 1963.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nAugust 17, 1963, of the Patna High Court in Criminal Appeals
\nNos. 554 and 556 of 1961.\n<\/p>\n
T.   V. R. Tatachari, for the appellants.\n<\/p>\n
D.   P. Singh and R. N. Sachthey, for the respondents.
\nFebruary  3, 1964.  The Judgment of the Court was  delivered
\nby
\nGAJENDRAGADKAR C.J.-The two appellants Haricharan Kurmi\t and
\nJogia Hajam were charged along with four other persons\twith
\nhaving committed an offence punishable under section 396<\/a>  of
\nthe Indian Penal Code, in that during the night\t intervening
\nthe 24th and the 25th March, 1960, they committed dacoity in
\nthe  house of Deokinandan Jaiswal, and during the course  of
\nthe  said  dacoity, they committed the\tmurder\tof  Damyanti
\nDevi,  wife of the said Deokinandan Jaiswal.  The  names  of
\nthe four other accused persons are; Ram Bachan Ram, Joginder
\nSingh,\tRam  Surat Choudhury and Achheylal  Choudhury.\t The
\nlearned\t Sessions  Judge, Muzaffarpur, who tried  the  case,
\nfound  all  the six accused persons guilty  of\tthe  offence
\ncharged.  He accordingly convicted them of the said  offence
\nand sentenced them to suffer improvements for life.
\nThis order of conviction and sentence was challenged by\t the
\nsaid  six accused persons by preferring appeals before\t,the
\nPatna High Court.  The High Court has held that the
\n\t\t\t    625<\/span>
\nlearned trial Judge was right in convicting five of the\t six
\nappellants because, in its opinion, the evidence led by\t the
\nprosecution proved the charge against them beyond reasonable
\ndoubt.\tIn regard to Joginder Singh, however, the High Court
\nwas  not inclined to agree with the conclusion of the  trial
\nJudge  and  gave the benefit of doubt to him.\tPending\t the
\nhearing\t of’  these appeals, a rule for the  enhancement  of
\nsentence  was  issued  by the High  Court  against  all\t the
\nappellants.   This  rule has been discharged  in  regard  to
\nJoginder Singh who has been acquitted, as well as Ram Bachan
\nRam,  Ram Surat Choudhury and Achheylal Choudhury, and\tthe’
\nsentence  of  imprisonment for life imposed on them  by\t ‘he
\ntrial  Judge  has  been confirmed.  In\tregard\tto  the\t two
\nappellants,  however, the High Court took the view that\t the
\nends  of justice required that the sentence of\timprisonment
\nfor  life  imposed  on them should be enhanced\tto  that  of
\ndeath.\tAccordingly, the rule against them was made absolute
\nand  ;they  have been ordered to be hanged.  It\t is  against
\nthis  order  of\t conviction and sentence  that\tthe  present
\nappeals\t have been brought before us by special\t leave;\t and
\nthe short question of law which has been raised before us by
\nMr.  Tatachari\tis that the High Court has erred in  law  in
\ntreating  the  confession made by the co-accused  Ram  Surat
\nChoudhury as substantive evidence against them.\t This course
\nadopted\t by the High Court in dealing with the case  of\t the
\nappellants  on the basis of the confession made by  the\t co-
\naccused\t person\t is,  it is  urged,  inconsistent  with\t the
\nconsensus  of judicial opinion in regard to the\t true  scope
\nand  effect  of\t section  30<\/a>  of  the  Indian  Evidence\t Act
\n(hereinafter called ‘the Act’).\n<\/p>\n
These  appeals were argued before a Division Bench of  three
\nlearned\t Judges\t of  this Court and it was  brought  to\t the
\nnotice\tof the said Bench that in dealing with the  case  of
\nthe appellants in the light of the confession made by a\t co-
\naccused\t  person,   the\t High  Court  had  relied   on\t the
\nobservations made by this Court in Ram Prakash v. The  State
\nof   Punjab<\/a>.(1)\t Since\tthese  observations,  prima   facie,
\nsupported the view taken by the Patna High Court, the  Divi-
\nsion Bench thought it necessary to refer this matter to a
\n(1) [1959] S.C.R. 1291.\n<\/p>\n
134-159 S.C.-40.\n<\/p>\n
626<\/span><\/p>\n
larger\tBench  in  order that the correctness  of  the\tsaid
\nobservations  may  be examined.\t That is how  these  appears
\nhave come, before a Constitution Bench.,
\nThe  facts leading to the prosecution of the appellants\t lie
\nwithin a narrow compass, and so far as the point which falls
\nto be considered in the present appeals is concerned,  there
\nis  no\tdispute in respect of the said\tfacts.\t Deokinandan
\nJaiswal is a fairly wealthy businessman and lives in village
\nDumarbana  within  the police station of  Bairgania  in\t the
\ndistrict  of  Muzaffarpur.   He\t has a\thouse  of  his\town.
\nAchheylal  and\tRam  Bachan  served  under  him\t as  minims.
\nJogender  Sinch\t was Jaiswal’s sepoy and Ram Surat  was\t his
\npersonal  servant.  The appellants are the  co-villagers  of
\nJogender  Singh\t who  was one of the  accused  persons.\t  It
\nappears\t that on the 24th March, 1960, Jaiswal had  received
\nRs. 15,000 in currency notes from his partner Nathan Mary in
\nthe  presence  of his minims Achheylal and  Ram\t Bachan;  in
\nfact,  as the said amount was handed over to Jaiswal in\t the
\nform  of different currency notes, Ram Bachan and  Achheylal
\nwere asked by him to count the said amount.  The said amount
\nwas  then put in different bundles by Jaiswal and to it\t was
\nadded another amount of Rs. 2,000 which he took out from his
\niron  safe.   The two bundles were then put  together  in  a
\nbigger\tbundle and to it was attached a slip containing\t his
\nsignature  and date.  According to Jaiswal, he\thanded\tover
\nthe amount of Rs. 17,000 thus put in two bundles to his wife
\nDamyanti  Devi,\t and in her turn, she put the  said  bundles
\ninto the iron safe which had been kept at the first floor of
\nthe  house in the room adjoining the bed-room.\t About\tthis
\ntime,  some  functions were organised by  the  Bharat  Sevak
\nSamaj in the village and Jaiswal was the convener in  regard
\nto  the said functions.\t Naturally, he had to attend to\t the
\ndelegates  who\thad  come  to  the  village  for  the\tsaid
\nfunctions.  During the days of these functions, Jaiswal used
\nto  return  home by about 10 P.m., but on the night  of\t the
\n24th March, 1960, the function went on late, and so, Jaiswal
\nslept at the Dharamshala where the function took ‘Place\t and
\ndid  not  return home.\tThat is how Damvanti Devi  was\tleft
\nalone in the house on the first floor and her only companion
\nwas her
\n\t\t\t    627<\/span>
\nchild Mina about 3 1\/2 years old.  Apparently, Damyanti Devi
\nretired\t to  her bed-room with her little child and  on\t the
\nground\tfloor  were sleeping three of the  accused  persons,
\nAchheylal,  Ram Bachan and Jogender Singh Ram Surat  was  on
\nleave, so that out of the four servants employed by Jaiswal,
\nthree  were sleeping on the premises.  Batahu, the  cook  of
\nthe family, was sleeping in a verandah attched to the  motor
\ngarage.\n<\/p>\n
Next  day Batahu was awakened by Achheylal who\treported  to
\nhim that the door of the hall was open.\t Thereupon Achheylal
\nand  this  witness went on the first floor  and\t found\tthat
\nDamyanti Devi was lying dead in a pool of blood.  There were
\ncut injuries in her neck which had presumably caused  severe
\nbleeding.   The\t little\t girl Mina  was\t fast  asleep.\t The
\nbundles of currency notes had been removed by the miscreants
\nwho  had committed the murder of Damyanti Devi.\t  Thereupon,
\nword  was  sent to Jaiswal and on his return to\t the  house,
\nsteps  were taken to report to the police station about\t the
\ncommission  of the offence; and that set  the  investigation
\nmachinery into operation.  As a result of the investigation,
\nthe six accused persons were out up for their trial for\t the
\noffence under s. 396<\/a> I.P.C. That, in brief, is the nature of
\nthe prosecution case.\n<\/p>\n
The  prosecution  sought to prove its case against  the\t six
\naccused persons by relying on the confessions made by  three
\nof  them, the recovery of the stolen property and  discovery
\nof  bloodstained clothes in respect of the  two\t appellants.
\nThere  is no direct evidence to show how, when, and by\twhom
\nthe  offence was committed.  Besides the  confessions,,\t the
\nevidence  on which the prosecution relies is  circumstantial
\nand  it is on this evidence that the case has been tried  in
\nthe courts below.  For our purpose in the present appeals it
\nis  unnecessary\t to  refer to the details  set\tout  by\t the
\nconfessional  statements in regard to the commission of\t the
\noffence\t rind  the part played by each one  of\tthe  accused
\npersons.\n<\/p>\n
Ram Surat, Achheylal and Ram Bachan made confessions and  it
\nhas  been  held\t by the High Court as well  as\tthe  Jearned
\nSessions Judge that the charge against them is
\n628<\/span>
\nproved.\t With the correctness or propriety of the conviction
\nof these accused persons we are not concerned in the present
\nappeals.  The only point to which reference must be made  at
\nthis  stage  is that there is a concurrent  finding  of\t the
\ncourts\tbelow  (that  the confession made by  Ram  Surat  is
\nvoluntary  and true.  In fact, both the courts did not\tfeel
\nany  hesitation in taking the said confession  into  account
\nagainst\t Ram  Surat who made the said  confession  and\tcon-
\nvicting\t him  on the said confession read in  the  light  of
\nother evidence adduced against him.  The charge against\t the
\ntwo  appellants\t has  been  sought  to\tbe  proved  by\t the
\nprosecution  by the statements contained in  the  confession
\nmade  by  the  three  accused  persons\tand  certain   other
\ndiscoveries, such as blood-stained clothes with both of them
\nand   stains  of  blood\t in  the  house\t of  the   appellant
\nHaricharan.  We will presently refer to this evidence.\t The
\nHigh Court took the view that having regard to the  decision
\nof this Court in the case of Ram Prakash(1), it was open  to
\nthe  High  Court to consider the evidence  supplied  by\t the
\nconfessional  statements made by the co-accused persons\t and
\nenquire\t whether  the said evidence  received  corroboration
\nfrom   any  other  evidence  adduced  by  the\tprosecution.
\nApproaching  the question from this point of view, the\tHigh
\nCourt  came to the conclusion that the blood stains  on\t the
\nclothes\t found\twith both the appellants  and  blood  stains
\nfound  in  the house of the  appellant\tHaricharan  afforded
\nsufficient corroboration to the confession of Ram Surat, and
\nso,  it has confirmed the conviction of the  two  appellants
\nunder  s.  396<\/a>\tI.P.C.\n<\/p>\n
The  High  Court  then considered the\tquestion  about\t the
\nsentence which should be imposed on the two appellants.\t  It
\nappeared  from\tthe confession of Ram Surat as well  as\t the
\nconfessional statements of Achheylal and Ram Bacban that the
\ntwo appellants had played a major part in the commission  of
\nthe  offence.  In fact, the injuries which proved fatal\t are
\nalleged\t by all the 3 accused persons who confessed to\thave
\nbeen  caused by the two appellants.  It is in the  light  of
\nthese  statements that the High Court was persuaded  to\t en-
\nhance  the sentence imposed by the trial Judge\tagainst\t the
\nappellants and it has directed that instead of\timprisonment
\nfor life, the sentence of death ought to be imposed on
\n(1)  [1959] S.C.R. 1219.\n<\/p>\n
\t\t\t    629<\/span><\/p>\n
them.\tThat  is how the only question which calls  for\t our
\ndecision  in the present appeals is the approach adopted  by
\nthe  High Court justified by the provisions of s. 30<\/a> of\t the
\nAct  as\t it has been consistently  interpreted\tby  judicial
\ndecisions for more than half a century ?\n<\/p>\n
Before we address ourselves to this question of law, we\t may
\nbriefly\t indicate the nature of the other evidence on  which
\nthe   prosecution  relies  against  the\t  appellants.\t The
\nappellants  were arrested the next day after the  commission
\nof  the offence on the report made by Jaiswal that  he\tsus-
\npected that the murder of his wife had been committed by his
\nfour  employees\t and their accomplices, the  two  appellants
\nbefore us.  On the 26th March, 1960, at about 3.30 P.m.\t the
\ninvestigation officer visited the lane between the  southern
\nwall of Jaiswal’s godown and the northern wall of the  east-
\nfacing room of the appellant Haricharan and found some blood
\nstains\tin  the lane and on the walls of the  grain  godown.
\nLater, a shirt bearing blood stains was also found.   Pieces
\nof  earth  containing  blood  stains  and  the\tshirt\twere
\nsubsequently  sent to the Chemical Analyser.  The origin  of
\nthe blood found on the pieces of earth sent to the  Chemical
\nAnalyser  could not be determined by him, but the stains  of
\nblood  on the shirt which was seized from the person of\t the
\nappellant  Haricharan  were found to have  traces  of  human
\nblood.\t Similarly, the nails of Haricharan’s  hands  showed
\ntraces\tof blood and they were got cut by a barber and\tsent
\nto the Chemical Analyser.  The report shows that these blood
\nstains were too small for serological test.  The High  Court
\nthought that “the presence of human blood on the shirt which
\nHaricharan  was\t wearing, his nails and\t at  several  places
\nbeginning from the lane leading to his house and on so\tmany
\nmaterials  kept\t in his house is a factor” which had  to  be
\ntaken  into  account.  These discoveries were made  about  8
\nA.M. following the night of the murder.\n<\/p>\n
In  regard  to\tthe appellant Jogia,  a\t red-coloured  check
\ngamcha\twhich bore blood-like stains was recovered from\t the
\ntop of the earthern granary in his house at about 6 A.M.  On
\n27th  March,  1960.  This gamcha was sent  to  the  Chemical
\nAnalyser and it is reported to bear stains of human blood It
\nmay  be added that when the house of Jogia was\tsearched  on
\nthe 26th March, 1960 this gaamcha was not found as
\n630<\/span>
\nwe have just indicated, the judgment of the High Court shows
\nthat it took the view that the confessional statement by the
\nco-accused persons of the appellants, particularly Ram Surat
\nwas  corroborated by the discovery of blood stains and\tthat
\njustified  the conviction of the appellants under s. 396  of
\nthe Indian Panel Code.\n<\/p>\n
The question about the part which a confession made by a co-
\naccused\t person\t can  play in a criminal trial,\t has  to  be
\ndetermined  in the light of the provisions of s. 30<\/a>  of\t the
\nAct.   Section 30<\/a> provides that when more persons  than\t one
\nare  being  tried  jointly  for\t the  same  offence,  and  a
\nconfession made by one of such persons affecting himself and
\nsome  other  of such persons is proved, the Court  may\ttake
\ninto  consideration  such confession as against\t such  other
\nperson\tas  well  as  against  the  person  who\t makes\tsuch
\nconfession.   The basis on which this provision is found  is
\nthat  if  a person makes a confession  implicating  himself,
\nthat  may  suggest  that  the maker  of\t the  confession  is
\nspeaking  the  truth.  Normally, if a statement made  by  an
\naccused person is found to be voluntary and it amounts to ‘a
\nconfession in the sense that it implicates the maker, it  is
\nnot  likely that the maker would implicate  himself  untrue,
\nand  so, s. 30<\/a> provides that such a confession may be  taken
\ninto  consideration even against a co-accused who  is  being
\ntried  along with the maker of the confession.\tThere is  no
\ndoubt  that  a\tconfession made voluntarily  by\t an  accused
\nperson\tcan  be used against the maker\tof  the\t confession,
\nthough\tas  a matter of prudence criminal  courts  generally
\nrequire\t  some\t corroboration\tto   the   said\t  confession
\nParticularly if it has been retracted.\tWith that aspect  of
\nthe  problem. however, we are not concerned in\tthe  present
\nappeals.   When s. 30<\/a> provides that the confession of a\t co-
\naccused may be taken into consideration, what exactly is the
\nscope  and  effect  of such taking  into  consideration,  is
\nprecisely  the problem which has been raised in the  present
\nappeals.  It is clear that the confession mentioned in s. 30<\/a>
\nis  not\t evidence  under s. 3<\/a> of the Act.   Sec.  3  defines
\n“evidence” as meaning and including-\n<\/p>\n
\t      (1)   all statements’ which the Court  permits
\n\t      or requires to be made before it by witnesses,
\n\t      in relation to matters of fact under  inquiry;
\n\t      such statements are called oral evidence;\n<\/p><\/blockquote>\n
\t\t\t\t   631<\/span><\/p>\n
\t      (2)   all\t   documents   produced\t  for\t the
\n\t      inspection  of the Court; Such  documents\t are
\n\t      called documentary evidence.\n<\/p><\/blockquote>\n
Technically  construed. this definition will not apply to  a
\nconfession.   Part  (1)\t of the definition  refers  to\toral
\nstatements  which the court permits or requires to  be\tmade
\nbefore\tit;  and clearly, a confession made  by\t an  accused
\nperson is not such a statement. it is not made or  permitted
\nto  be made before the court that tries the  criminal  case.
\nPart (2) of the definition refers to documents produced\t for
\nthe inspection of the court; and a confession cannot be said
\nto fall even under this part.  Even so, s. 30<\/a> provides\tthat
\na  confession  may  be taken  into  consideration  not\tonly
\nagainst\t its  maker, but also against a\t co-accused  person;
\nthat is to say, though such a confession may not be evidence
\nas  strictly  defined by s. 3<\/a> of the Act, it is\t an  element
\nwhich may be taken into consideration by the criminal  court
\nand in that sense, it may be described as evidence in a non-
\ntechnical  way.\t  But  it is  significant  that\t like  other
\nevidence  which\t is  produced before the Court,\t it  is\t not
\nobligatory on the court to take the confession into account.
\nWhen  evidence as defined by the Act is produced before\t the
\nCourt,\tit  is\tthe  duty of  the  Court  to  consider\tthat
\nevidence.  What weight should be attached to such  evidence,
\nis  a  matter in the discretion of the Court.  But  a  Court
\ncannot say in respect of such evidence that it will just not
\ntake  that  evidence into account.  Such  an  approach\tcan,
\nhowever,  be  adopted  by  the\tCourt  in  dealing  with   a
\nconfession,  because s. 30<\/a> merely enables the Court to\ttake
\nthe confession into account.\n<\/p>\n
As  we\thave  already  indicated.  this\t question  has\tbeen
\nconsidered on several occasions by judicial decisions and it
\nhas  been  consistently\t held that a  confession  cannot  be
\ntreated as evidence which is substantive evidence against  a
\nco-accused person. in dealing with a criminal case where the
\nprosecution relies upon the confession of one accused person
\nagainst another accused person, the proper approach to adopt
\nis  to consider the other evidence against such\t an  accused
\nperson, and if the said evidence appears to be\tsatisfactory
\nand the court is inclined to hold that the said evidence may
\nsustain\t the charge framed against the said accused  person,
\nthe  court  turns to the confession with a  view  to  assure
\nitself that
\n632<\/span>
\nthe  conclusion which it is inclined to draw from the  other
\nevidence is right.  As was observed by Sir Lawrence  Jenkins
\nin  Emperor v. Lalit Mohan Chuckerbuttv<\/a>(1) a confession\t can
\nonly be used to “lend assurance to other evidence against  a
\nco-accused”.   In  In re.  Peryaswami Noopan,(2)  Reilly  J.
\nobserved  that the provision of s. 30<\/a> goes not further\tthan
\nthis  :\t “where\t there is evidence  against  the  co-accused
\nsufficient,  if,. believed, to support his conviction,\tthen
\nthe kind of confession described in s. 30<\/a> may be thrown into
\nthe  scale  as\tan  additional\treason\tfor  believing\tthat
\nevidence.” In Bhuboni Sahu v. King<\/a>(1) the Privy Council\t has
\nexpressed the same view.  Sir.\tJohn Beaumont who spoke\t for
\nthe  Board  observed that a confession of  a  co-accused  is
\nobviously evidence of a very weak type.\t It does not  indeed
\ncome  within the definition of “evidence” contained in s.  3<\/a>
\nof  the\t Evidence Act.\tIt is not required to  be  given  on
\noath,  nor in the presence of the accused, and it cannot  be
\ntested\tby cross-examination.  It is a much weaker  type  of
\nevidence  than\tthe evidence of an approver,  which  is\t not
\nsubject\t to any of those infirmities.  Section 30<\/a>,  however,
\nprovides  that\tthe  Court  may\t take  the  confession\tinto
\nconsideration  and thereby, no doubt, makes it\tevidence  on
\nwhich  the court may act; but the section does not say\tthat
\nthe confession is to amount to proof.  Clearly there must be
\nother  evidence.  The confession is only one element in\t the
\nconsideration of all the facts proved in the case, it can be
\nput into the scale and weighed with the other evidence.”  It
\nwould  be  noticed  that  as  a\t result\t of  the  provisions
\ncontained  in  s.  30<\/a>, the confession has  no  doubt  to  be
\nregarded as amounting to evidence in a general way,  because
\nwhatever   is\tconsidered  by\tthe   court   is   evidence;
\ncircumstances  which are considered by the court as well  as
\nprobabilities  do amount to evidence in that generic  sense.
\nThus, though confession may be regarded as evidence in\tthat
\ngeneric\t sense because of the provisions of s. 30<\/a>, the\tfact
\nremains\t that it is not evidence as defined by s. 3<\/a>  of\t the
\nAct.  The result, therefore, is that in dealing with a\tcase
\nagainst\t an accused person, the court cannot start with\t the
\nconfession of a co-accused person; it must
\n(1)  (1911) I.L.R. 38 Cal. 559 at p. 588.\n<\/p>\n
(2)  (1913) I.L.R. 54 Mad. 75 at p. 77.\n<\/p>\n
(3)  (1949) 76 I.A. 147 at p. 155.\n<\/p>\n
\t\t\t    633<\/span><\/p>\n
begin  with  other evidence adduced by the  prosecution\t and
\nafter  it has formed its opinion with regard to the  quality
\nand  effect of the said evidence, then it is permissible  to
\nturn to the confession in order to receive assurance to\t the
\nconclusion  of\tguilt which the judicial mind  is  about  to
\nreach on the said other evidence.  That, briefly stated,  is
\nthe  effect of the provisions contained in s. 30<\/a>.  The\tsame
\nview  has been expressed by this Court in Kashmira Singh  v.
\nState  of Madhya Pradesh<\/a>(1) where the decision of the  Privy
\nCouncil\t in  Bhuboni  Sahu’s(2) case  has  been\t cited\twith
\napproval.In  appreciating the full effect of the  provisions
\ncontained  ,in\ts.  30, it may be useful  to  refer  to\t the
\nposition of the evidence given by an accomplice under s. 133<\/a>
\nof  the Act.  Section 133<\/a> provides that an accomplice  shall
\nbe  a competent witness against an accused person; and\tthat
\nconviction  is not illegal merely because it  proceeds\tupon
\nthe uncorroborated testimony of an accomplice.\tIllustration\n<\/p>\n
(b) to s. 114<\/a> of the Act brings out the legal position\tthat
\nan   accomplice\t is  unworthy  of  credit,  unless   he\t  is
\ncorroborated  in  material particulars.\t Reading  these\t two
\nprovisions together, it follows that though an accomplice is
\na  competent  witness, prudence requires that  his  evidence
\nshould\t not   be  acted  upon\tunless\tit   is\t  materially
\ncorroborated;  and that is the effect of judicial  decisions
\ndealing with this point.  The point of significance is\tthat
\nwhen the Court deals with the evidence by an accomplice, the
\nCourt  may treat the said evidence as  substantive  evidence
\nand  enquire whether it is materially corroborated  or\tnot.
\nThe  testimony of the accomplice is evidence under s.  3<\/a>  of
\nthe  Act and has to be dealt with as such.  It is  no  doubt
\nevidence of a tainted character and’ as such, is very  weak;
\nbut,  nevertheless,  it is evidence and may be\tacted  upon,
\nsubject to the requirement which has now become virtually  a
\npart  of  the  law  that  it  is  corroborated\tin  material
\nparticulars.\n<\/p>\n
The  statements\t contained  in the confessions\tof  the\t co-
\naccused\t persons  stand on a different\tfooting.   In  cases
\nwhere  such confessions are relied upon by  the\t prosecution
\nagainst\t an accused person, the Court cannot begin with\t the
\nexamination of the said statements.  The stage to consider
\n(1)  [19521 S.C.R. 526.\n<\/p>\n
(2) (1949) 76 I.A. 147 at p. 155.\n<\/p>\n
634<\/span><\/p>\n
the  said  confessional statements arrives  only  after\t the
\nother  evidence is considered and found to be  satisfactory.
\nThe difference in the approach which the Court has to  adopt
\nin  dealing with these two types of evidence is thus  clear,
\nwell-understood and well-established.  It, however,  appears
\nthat  in Ram Prakash’s case(1), some observations have\tbeen
\nmade which do not seem to recognize the distinction  between
\nthe  evidence of an accomplice and the statements  contained
\nin  the\t confession  made by an accused\t person.   “An\texa-
\nmination  of  the  reported decisions of  the  various\tHigh
\nCourts\tin India,” said Imam J., who spoke for the Court  in
\nthat  case, “indicates that the preponderance of opinion  is
\nin  favour of the view that the retracted confession  of  an
\naccused person may be taken into consideration against a co-
\naccused by virtue of the provisions of s. 30<\/a> of the Act, its
\nvalue  was ,extremely weak and there could be no  conviction
\nwithout the fullest and strongest corroboration on  material
\nparticulars.” The last portion of this observation has\tbeen
\ninterpreted  by\t the  High  Court in  the  present  case  as
\nsupporting the view that like the evidence of an accomplice,
\na  ,confessional  statement of a co-accused  person  can  be
\nacted  upon if it is corroborated in  material\tparticulars.
\nIn  our opinion, the context in which the  said\t observation
\nwas made by this Court shows that this Court did not  intend
\nto  lay\t down  any such proposition.   In  fact,  the  other
\nevidence  against  the appellant Ram Prakash was of  such  a
\nstrong character tnat this Court agreed with the  conclusion
\nof  the\t High  Court and held that  the\t said  evidence\t was
\nsatisfactory  and  in  that  connection,  the\tconfessional
\nstatement  of the coaccused person was considered.  We\tare,
\ntherefore,  satisfied  that the High Court was in  error  in
\nthis  case  in\ttaking the view that  the  decision  in\t Ram
\nPrakash’s(1)  case was intended to strike a discordant\tnote
\nfrom  the  well-established  principles\t in  regard  to\t the
\nadmissibility and the effect of confessional statements made
\nby co-accused persons.\n<\/p>\n
Considering  the evidence from this point of view,  we\tmust
\nfirst  decide  whether the evidence other than\tthe  confes-
\nsional\tstatements of the co-accused  persons,\tparticularly
\nRam Surat, on whose confession the High Court has substan-
\n(1)  [1959] S.C.R. 1219.\n<\/p>\n
\t\t\t    635<\/span><\/p>\n
tially\trelied,\t is  satisfactory and  tends  to  prove\t the
\nprosecution  case.   It\t is only if  the  said\tevidence  is
\nsatisfactory and is treated as sufficient by us to hold\t the
\ncharge\tproved against the two appellants, that an  occasion
\nmay  arise to seek for an assurance for our conclusion\tfrom
\nthe said confession.  Thus considered, there can be no doubt
\nthat  the  evidence about the discovery of blood  stains  on
\nwhich  the  prosecution relies is entirely  insufficient  to
\njustify the prosecution charge against both the\t appellants.
\nIn  our opinion, it is impossible to accede to the  argument
\nurged  before us by Mr. Singh that the said evidence can  be
\nsaid  to prove the prosecution case.  In fact, the  judgment
\nof  the High Court shows that it made a finding against\t the
\nappellants   substantially  because  it\t thought  that\t the
\nconfessions  of\t the  co-accused  persons  could  be   first
\nconsidered and the rest of the evidence could be treated  as
\ncorroborating  the  said confessions.\tWe  are,  therefore,
\nsatisfied  that the High Court was not right  in  confirming
\nthe  conviction of the two appellants under s. 396<\/a>  ,of\t the
\nIndian Penal Code<\/a>.\n<\/p>\n
It  is\ttrue  that the confession made by  Ram\tSurat  is  a
\ndetailed statement and it attributes to the two appellants a
\nmajor  part  in the commission of the offence.\tIt  is\talso
\ntrue  that  the\t said  confession  has\tbeen  found  to\t  be
\nvoluntary,  and true so far as the part played by Ram  Surat
\nhimself\t is concerned, and so, it is not unlikely  that\t the
\nconfessional  statement in regard to the part played by\t the
\ntwo  appellants\t may also be true; and in  that\t sense,\t the
\nreading of the said confession may raise a serious suspicion
\nagainst the accused.  But it is precisely in such cases that
\nthe  true  legal  approach must be  adopted  and  suspicion.
\nhowever\t grave,\t must not be allowed to take  the  place  of
\nproof.\t As  we\t have  already indicated,  it,\thas  been  a
\nrecognised  principle of the administration of criminal\t law
\nin this country for over half a century that the  confession
\nof  a  co-accused person cannot be  treated  as\t substantive
\nevidence and can be pressed into service only when the court
\nis  inclined  to’  accept  other  evidence  and\t feels\t the
\nnecessity of seeking for an assurance in support of its con-
\nclusion\t deducible,  from the said  evidence.\tIn  criminal
\ntrials,\t there\tis no scope for applying  the  principle  of
\nmoral  conviction  or grave suspicion.\t In  criminal  cases
\nwhere  the other evidence adduced against an accused  person
\nis wholly
\n636<\/span>
\nunsatisfactory and the prosecution seeks to rely on the con-
\nfession of a co-accused person, the presumption of innocence
\nwhich  is  the basis of criminal jurisprudence\tassists\t the
\naccused\t person and compels the Court to render the  verdict
\nthat  the  charge is not proved against him, and so,  he  is
\nentitled  to the benefit of doubt.  That is  precisely\twhat
\nhas happened in these appeals.\n<\/p>\n
In  the\t result, the appeals are allowed and the  orders  of
\nconviction  and sentence passed against the  two  appellants
\nHaricharan  Kurmi  and\tJogia Hajam are set  aside  and\t the
\naccused are ordered to be acquitted.\n<\/p>\n
Appeals allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hari Charan Kurmi And Jogia Hajam vs State Of Bihar on 3 February, 1964 Equivalent citations: 1964 AIR 1184, 1964 SCR (6) 623 Author: B P Sinha Bench: Sinha, Bhuvneshwar P.(Cj), Wanchoo, K.N., Gupta, K.C. Das, Shah, J.C., Ayyangar, N. Rajagopala PETITIONER: HARI CHARAN KURMI AND JOGIA HAJAM Vs. RESPONDENT: STATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254430","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHari Charan Kurmi And Jogia Hajam vs State Of Bihar on 3 February, 1964 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hari-charan-kurmi-and-jogia-hajam-vs-state-of-bihar-on-3-february-1964\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Charan Kurmi And Jogia Hajam vs State Of Bihar on 3 February, 1964 - 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