# HARI CHARAN KURMI AND JOGIA HAJAM v. STATE OF BIHAR - **Citation:** [1964] 6 S.C.R. 623 - **Court:** Supreme Court of India - **Decided:** 1963-08-17 - **Case number:** Criminal Appeals Nos. 208 and 209 of 1963 - **Bench:** P. B. Gajendragadkar, C. J. K. N. Wanchoo, K. C. Das Gupta, J. C. Shah, N. Rajagopala Ayyangar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-charan-kurmi-and-jogia-hajam-v-state-of-bihar-3208 - **Pages:** 14 ## Headnote £.,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-Distinction 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 permissible to turn to the confession in order to lend assurance to the conclusion 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 prosecution 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 Haricharan 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 ## Text 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-Distinction 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 permissible to turn to the confession in order to lend assurance to the conclusion 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 prosecution 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 Haricharan 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. He accordingly convicted them of the said offence and sentenced them to suffer imQrisonment for life. This order of conviction and sentence was challenged by the said six accused persons by preferring appeals before the Patna High Court. The High Court has held that the 6 S.C.R. SUPREME COURT REPORTS learned trial Judge was right in convicting five of the six appellants- because, in its opinion, the evidence led by the prosecution proved the charge against them beyond reasonable doubt. In regard to Joginder Singh, however, the High Court was not inclined to agree with the conclusion of the trial Judge and gave the benefit of doubt to him. Pending the hearing of these appeals, a rule for the enhancement of sentence was issued by the High Court against all the aP;>ellants. This rule has been discharged in regard to Joginder Singh who has been acquitted, as well as Ram Bachan Ram, Ram Surat Choudhury and Achheylal Choudhury, and the sentence of imprisonment for life imposed on them by wt Jhat it took the view that the confessional statement by the co-accused persons of the appellants, particularly Ram Sμr!I~ was corroborated by the discovery of blood stains and that Gpjendragadkar ~.I. justified the conviction of the appellants under s. 396 of the Indian Panel Code. The question about the part which a confession made by a co-accused person can play in a criminal trial, has to be determined in the light of the provisions of s. 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which 'this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the 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, s. 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 the confession. There is no doubt that a 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 has been retracted. With that aspect of the problem. however, we are not concerned in the present appeals. When s. 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 precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in s. 30 is not evidence under s. 3 of the Act. Sec. 3 defines "evidence" as meaning and including- (!) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry: such 1tatements are called oral evidence; , 6 S.C.R. SUPREME COURT REPORTS (2) all documents produced for the inspection of the Court: Such documents are called documentary evidence. Technically construed. this definition will not apply to a confession. Part (I) of the definition refers to oral statements which the court permits or requires to be made before it:. and clearly, a confession made by an accused person is not such a statement: it is not made or permitted to be made before the court that tries the criminal case. Part ( 2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, s. 30 provides that a confession may be taken into consideration n\Jt only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which is produced before the Court. it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the· Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because s. 30 merely enables the Court to take the confession into account. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the pros~cu tiou relies upon the confession of one accused person agamst another accused person. the proper approach to adopt is to cousider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the coun is inclined to hold that the said evidence may sustam me charge framed against the said accused person, the court turns to the confession with a view to assure itself that ffari ChaK«rmi v. Sta~ of BiMr Gajendragadk41" C.J. 1964 Hari Charan Kur mi . v. Sta# of Bihar ·aa/endragadkar C.J. SUPREME COURT REPORTS [rg64] the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. La/it Mohan Chuckerbutty( 1 ) a confession can only be used to "lend assurance to other evicknce against a co-accused". In In re. Peryaswami Noopan,(') Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King( 8 ) the Privy Council has expressed the same view. Sir fohn Beaumont who spoke for the Board observed that 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 s. 3 of the Evidence Act. 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 tho facts proved in the case; it can be put into the scale and weighed with the other evidence." It would be noticed th~t as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in 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 s. 30, the fact remains that it is not evidence as defined by s. 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 a co-accused person; it must (I) (1911) l.L.R. 38 Cal. 559 at p. $88. (2) (1913) I.L.R. 54 Mad. 75 at p. 77. (3) (1949) 76 I.A. 147 at p. !SS. 6 S.C.R. SUPREME COURT REPORTS begin with other 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 guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh(') where the decision of the Privy Council in Bhuboni Sahu's(') case has been cited with approval. In appreciating the full effect of the provisions contained in s. 30, it may be useful to refer to the position of the evidence given by an accomplice under s. 133 of the Act. Section 133 provides that an accomq>lice shall be a competent witness against an accused person; and that conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to s. 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomq>lice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under s. 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and· as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars . . The statements contained in the confessions of the co-accused persons stand on a different footing. T n cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider· (I) [1952] S.C.R. S, (2) (t949) 76 lA. 147 •Ir. 155. 1964 Hari Charar1 · Kurmi v. State of Bihar GajtndragadkarC. J. 1964 Hari Charan Kurmi· •• ·Sta" of Biluzr -Gajendragadkar C.1. SUPREME COURT REPORTS th~ said ".°nfessi?nal statements arrives only after the other e~1dence ~ considered and found to be satisfactory. The diffe.rence. Ill .the approach which the Court has to adQ?t in dealing with these two types of evidence is thus clear, well- ~nderstood and well-established. It, however, appears that Ill Ram Prakash's case('), some observations have been made which do not seem to recogniz.e the distinotion between the evidence of an accomplice and the statements contained in the confession made by an accused person. "An examination of the reported decisions of< the various High Courts in India," said Imam J., who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co-accused by virtue of the provisions of s. 30 of the Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars." The last portion of