Introduction

• This is a landmark case on the admissibility of accomplice evidence in criminal trials.

Facts

• On 11^th October 1946 one Kalia Behara was brutally murdered at a place between Berbampur, where he lived and carried on business as a jutka driver, and Golantra, to which he was driving with passengers in his jutka.
• The appellant was prosecuted and convicted of the offence of murder under Section 302/34 of the Indian Penal Code, 1860.
• The learned Judge convicted six of the accused including the appellant who was accused 7 and one Trinath, who was accused 5.
• The High Court of Patna dismissed the appeal against the judgment and order of the Court of the Sessions Judge of Ganjam-Puri and upheld the appellants conviction.

Issue Involved

• Whether there was evidence upon which the appellant could be properly convicted?

Observations

• The evidence against the appellant consisted of
  • the evidence of Kholli Behara who had taken part in the murder and had become an approver;
  • the confession of Trinath recorded under Section 164, Code of Criminal Procedure, 1973 (CrPC) which implicated both himself and the appellant in the murder, but which was retracted in the Sessions Court; and
  • the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khantibadi, or instrument for cutting grass, in circumstances alleged to implicate the appellant.
• It is not illegal to act upon the uncorroborated evidence of an accomplice but it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice.
• A statement made under Section 164 CrPC can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement.
• The statement made by the approver under Section 164 plainly does not amount to the corroboration in material particulars which the Courts require in relation to the evidence of an accomplice.
• An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition.
• Although the learned Judges of the High Court accepted the evidence of the approver given before the Committing Magistrate, they appreciated that it would be unsafe to act upon such evidence unless it were corroborated in the manner required by the rule of prudence.
• Section 30 was introduced for the first time in the Evidence Act of 1872 and marks a departure from the Common Law of England.
• It will be noticed that the section applies to confessions, and not to statements which do not admit the guilt of the confessing party.
• In the present case the Courts in India appreciated this, and ruled out statements made by certain of the accused which were self-exculpatory in character.
• Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type.
• It does not indeed come within the definition of "evidence" contained in Section 3, Indian Evidence Act, 1872 (IEA). It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.
• It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities.
• Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof.
• Clearly there must be other evidence.
• The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.
• In the present case their Lordships were in complete agreement with the Judges of the High Court in declining to act upon the evidence of the approver supported only by the confession of Trinath.

Conclusion

• The Lordships were of opinion that the conviction of the appellant cannot stand and hence the appeal was allowed.