LexHARI CHARAN KURMI AND JOGIA HAJAM versus STATE OF BIHAR
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6 S.C.R SUPREME COURT REPORTS 623 HARI CHARAN KURMI AND JOGIA HAJAM v. STATE OF BIHAR (P. B. GAJENDRAGADKAR, C. J. K. N. WANCHOO, K. C. DAS GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.) £.,jdence Act-Confession of co-accused-Not ''evidtnce'' within the meaning of s. 3 Evidence Act-Not substantive evidence against co .. accused-Can be used only to give assurance to conclusion of guilt based on other evidence-Sections 30 and 133 Evidence Act-Dis- tinction between-Indian Evidence Act, 1872 (1 of 1872). ~·s. 3, 30, 133. The appellants along with four others were tried and convicted by the Sessions Judge for the offences of dacoity and murder and sentenced to undergo imprisonment for life. On appeal the High Court confirmed the conviction and sentence. Pending that appeal it issued a rule for enhancement of the sentence, and finally the rule was made absolute and they were ordered to be banged. The appellants thereupon filed the present appeals by special leave granted by this Court The main point raised before this Court was that the High Court misconceived the ambit and scope of the decision of this Court in Ram Prakash v. State of Puniab [1959] S.C.R. 121 and that the High Court committed an error in law in treating the confession made by the co-accused u substantive evidence against the appellants. Held: (i) Though a confession mentioned in s. 30 of the Indian Evi- ~nce Act is not evidence as defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non-technical way. But in dealing With a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other "vidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is per- missible to turn to the confession in order to lend assurance to the con- clusion of guilt which the judicial mind is about to reach on the said other evidence. Kashmira Singh v. State of Madhya Pradesh, [1952] S.C.R. 526, l!mperor v. La/it Mohan Chukerbutty, [1911] I.LR. 38 Cal. 559, ln re: Perivsswami Moopan, [1913] I.LR. S• Mad. 75 and Bhuboni Sahu Y. The King, [1949] 76 I.A. 147, followed. (ii) The distinction between evidence of an accomp1ice under s. 133 and confeuion under s. 33 E\-idence Act is that the former is evidence 'Padcr s .. 3 and the court may treat it as substantive evidence and seek s:orroboration in other evidence but the latter is not evidence under s. 3 Jllcl the coµrt should first start from other evidence and then find ass11· naco in the confessional statement for conviction. 1964 Febrl!ary, J · 1964 . Harl CluuaN Kurmi v . • ltaH of Biltar • Gajendragadkar C. J. SUPREME COURT REPORTS (iii) The High Court was in .error in taking the view that the deci· · sion in R.:im ~rakash·.~ case was intended to strike a dissenting note from the well-established principles in regard to the admissibility and the eifcct of confessional statement made by accused persons. Ram Prakash v. State of Punjab [1959] S.C.R. 1219, explained. (iv) On examining the evidence in the present case on the above principles it is found that there is no sufficient evidence to vrove the pro- secution case. ' . CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 208 and 209 of 1963. Appeals by special leave from the judgment and order dated August 17, 1963, of the Patna High Court in Criminal Appeals Nos. 554 and 556 of 1961. T. V. R. Tatachari, for the appellants. D. P. Singh and R. N. Sachthey, for the respondents. February 3, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR C.J.-The two appellants Hari- charan Kurmi and Jogia Hajam were charged along witll four other persons with having committed an offence punishable under section 396 of the Indian Penal Code, in that during the night intervening the 24th and the 25th March, 1960, they committed dacoity in the house of Deokinandan Jaiswal, and during the course of the said dacoity, they committed the murder of Damyanti Devi, wife of the said Deokinandan J aiswal. The names of the four other accused persons are; Ram Bachan Ram, Joginder Singh, Ram Surat Choudhury and Achheylal Choudhury. The learned Sessions Judge, Muzaffarpur, who tried the case; found all the six accused persons guilty of the offence charged
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