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TMI Blog1927 (12) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 1975 in the course of which the culprits were alleged to have removed cash and other properties after-assaulting the inmates of the house being armed with dangerous instruments. On the basis of the first information report lodged by P. W. 1, investigation had been taken up by the Officer-in-Charge of the Nilgiri Police Station (P. W. 8) and on its completion, a charge-sheet was placed against the present appellant and the co-accused person Baina Das besides nine others. The appellant and the co-accused person were not available and were said to be absconding. The other accused persons involved in the same case were tried in batches in Sessions Trial Nos. 70 and 73 of 1977 which were disposed of on 13. 12. 1977. After the appellant and the co-accused Baina Das were apprehended, they were tried jointly being charged under Section 395 of the Indian Penal Code. To bring home the charge, the prosecution had examined eight witnesses of whom P. Ws. 1 to 4 and 7 had been examined to speak about the commission of dacoity and they had identified the appellant and the co-accused Baina Das in the court. P. W. 5, then the Subdivisional Judicial Magistrate at Nilgiri, had recorded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the commission of dacoity by the culprits Ined sufficient assurance to the truth of the confessional statement recorded by P. W. 5 in Ext. 2 From the confessional statement Ext. 2 which is true and voluntary, it can be safely concluded that both the accused persons were participants in the alleged dacoity. Hence both the accused persons are convicted under Section 395 I. P. C. 3. It is thus that the order of conviction against the appellant and the co-accused person based solely on the confession of Narendra Behera who originally figured as one of the eleven accused persons and who had stood trial separately and previously was recorded and the appellant was sentenced as earlier stated. Thus the learned Judge could not do in view of the provisions contained in Section 30 of the Evidence Act which is the only provision dealing with the admissibility and evidentiary value of the confession of a co-accused person. 4. The learned advocate appearing for the appellant has challenged the order of conviction on the ground that it could not have been recorded solely on the basis of the confession of a co-accused person who had not stood trial jointly with the appellant. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -accused person Baina Das. A confession of the accused may be admissible and used not only against him but also against a co-accused person tried jointly with him for the same offence. Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom the confession is used. The confession of an accused tried previously would be rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a co-accused person, the confession of Narendra Behera was not to be admitted under Section 30 of the Evidence Act against the present appellant and the co-accused Baina Das, 8. I would next come to the evidentiary value of the confession of a co-accused person. 9. As provided in Section 30 of the Evidence Act itself, the court may take into consideration the confession of a co-accused person. With respect to the words may take into consideration , Jackson, J, observed in R. v. Chandra 25 WR. Cr 43: The section does not provide as has been repeatedly pointed out by this court. That such confession is evidence, still less does it say, that it may be the foundation of a case against the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke into consideration such confession as against such other as well as against the person who makes such confession. The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking truth. Normally if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of confession There is no doubt that the confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it bas been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When. Section 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is riot evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with ether evidence 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 permissible to turn to the confession in order to receive assurance to the conclusion of which the judicial mind is about to reach en the said guilt other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 2577, has been cited with approval. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a conviction solely on its basis is bad and is unsustainable in law. 11. In view of the clear provisions made in Section 30 of the Evidence Act and the principles laid down by the Judicial Committee of the Privy Council, the Supreme Court and this. Court, to which reference has been made in this judgment, it must be held that in the absence of any other substantive evidence pointing to the guilt of the appellant and the co-accused Baina Das, they could not legally be convicted only on the basis of the confession of a person who was accused of the commission of the same offence and had been tried separately and not jointly with the appellant and the co-accused Baina Das. The order of conviction passed against the appellant and the co-accused Baina Das is, therefore, completely illegal and wholly misconceived. 12. No doubt, to err is human. The subject of law is, indeed, vast and there is no end to one's learning. After all, one learns from the cradle to the grave. When a doubt on any legal question arises, it should be resolved with reference to the statutes and the judge-made laws. As noticed in the instant case, the learned trial judge had not at all applied his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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