Hari Charan Kurmi and Jogia Hajam vs State of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 208 and 209 of 1963

Decision Date: 3 February 1964

Coram: K.N. Wanchoo, K.C. Das Gupta, J.C. Shah, N. Rajagopala Ayyangar, Sinha Bhuvneshwarl P. (CJ)

In this matter, the petitioners Hari Charan Kurmi and Jogia Hajam were opposed by the State of Bihar. The judgment was delivered on 3 February 1964 by the Supreme Court of India. The bench that heard the case comprised Chief Justice Bhuvneshwar P Sinha and judges K.N. Wanchoo, K.C. Das Gupta, J.C. Shah, and N. Rajagopala Ayyangar. The official citations for the decision are reported in 1964 AIR 1184 and 1964 SCR (6) 623, with subsequent citator references R 1977 SC 1579 (25) and R 1987 SC 955 (10). The case concerns the interpretation of sections 3, 30 and 133 of the Indian Evidence Act, 1872, particularly the legal status of a confession made by a co‑accused. The headnote records that the appellants, together with four others, were tried before a Sessions Judge for the offences of dacoity and murder and were sentenced to life imprisonment. The High Court affirmed the conviction and sentence, later enhancing the punishment and ultimately directing that they be hanged. The appellants consequently filed special leave appeals before this Court, challenging the High Court’s view of the precedent set in Ram Prakash v. State of Punjab [1959] S.C.R. 121, and alleging that the High Court erred by treating the co‑accused’s confession as substantive evidence against the appellants.

The Court held that although a confession referred to in section 30 of the Evidence Act does not qualify as evidence under the definition of section 3, it nonetheless constitutes an element that a criminal court may consider and may be described as “evidence” in a non‑technical sense. However, the Court stressed that in a prosecution against an accused, the court must first examine the other evidence presented by the prosecution and form an opinion on its quality and effect before turning to any confession of a co‑accused. Only after such an assessment may the confession be used to provide assurance that supports the conclusion of guilt that the judicial mind is about to reach based on the other evidence. The Court referenced earlier decisions such as Kashmira Singh v. State of Madhya Pradesh [1952] S.C.R. 526, Emperor v. Lalit Mohan Chukerbutty [1911] I.L.R. 38 Cal. 559, In re Perivasswami Moopan [1913] I.L.R. 54 Mad. 75 and Bhuboni Sahu v. The King [1949] 76 I.A. 147. The Court further distinguished between evidence of an accomplice under section 133, which is evidence under section 3 and may be treated as substantive evidence, and a confession under section 33, which is not evidence under section 3 and therefore requires the court to first consider other evidence before relying on the confession for conviction. The Court concluded that the High Court was wrong in its approach and that the evidence on record was insufficient to sustain the prosecution’s case against the appellants.

In this matter, the Court observed that a confession of a co‑accused may be used only after the trial court has first examined other independent evidence and, having formed an opinion on the quality and effect of that evidence, may then seek corroboration in the confessional statement. The Court stressed that such a confession is not classified as evidence under section 3 of the Evidence Act, and therefore it cannot form the basis of the conviction without first being supported by other material. The Court further held that the High Court erred in treating the decision in Ram Prakash v. State of Punjab as a departure from the well‑settled principles governing the admissibility and effect of confessional statements made by accused persons. After applying the established principles to the material on record, the Court found that the prosecution had not produced sufficient evidence to prove its case against the appellants.

The judgment concerned criminal appeals numbered 208 and 209 of 1963, which were filed by special leave against the order dated 17 August 1963 of the Patna High Court in criminal appeals 554 and 556 of 1961. The two appellants, Haricharan Kurmi and Jogia Hajam, had been charged together with four others—Ram Bachan Ram, Joginder Singh, Ram Surat Choudhury and Achheylal Choudhury—for an offence punishable under section 396 of the Indian Penal Code. The alleged offence involved a dacoity committed on the night of 24‑25 March 1960 at the residence of Deokinandan Jaiswal, during which the murder of Damyanti Devi, the wife of Deokinandan Jaiswal, was alleged to have occurred. The learned Sessions Judge at Muzaffarpur tried the case, found all six accused guilty, convicted them under the charge and sentenced each of them to life imprisonment. All six appellants challenged the conviction and sentence before the Patna High Court. The High Court upheld the convictions of five of the accused, holding that, in its view, the prosecution evidence established the charge beyond reasonable doubt for those five. It differed on the fate of Joginder Singh, granting him the benefit of doubt and acquitting him. While the appeals were pending, the High Court issued a rule for enhancement of sentence against all the appellants. That rule was later set aside for Joginder Singh, who had been acquitted, as well as for Ram Bachan Ram, Ram Surat Choudhury and Achheylal Choudhury, leaving the life sentences imposed by the trial judge confirmed for those four. However, regarding the two principal appellants, Haricharan Kurmi and Jogia Hajam, the High Court held that the ends of justice required that their life sentences be enhanced, a direction that the present appeal sought to overturn.

The High Court had converted the earlier rule of enhancement into a final order of death, directing that the two remaining appellants be hanged. The present petitions were filed before this Court by way of special leave, challenging that conviction and the capital sentence. Counsel for the petitioners raised a concise question of law, contending that the High Court erred in treating the confession of co‑accused Ram Surat Choudhury as substantive proof against the appellants. The argument asserted that such reliance on the co‑accused’s statement conflicted with the settled judicial view on the true scope of section thirty of the Indian Evidence Act. For brevity, the Act is hereafter called the Act. The matter was argued before a Division Bench consisting of three learned Judges of this Court. The Bench noted that the High Court had relied upon the observations made by this Court in Ram Prakash v. State of Punjab. Because those observations appeared, on their face, to support the view adopted by the Patna High Court, the Division Bench considered it necessary to refer the issue to a larger Bench for examination. Consequently, the petitions were placed before a Constitution Bench to determine whether the High Court’s reliance on the co‑accused’s confession was legally correct.

The factual background that led to the prosecution of the appellants is narrow and undisputed, and it forms the basis of the present appeals. Deokinandan Jaiswal, a relatively prosperous businessman, resided in the village of Dumarbana, which falls under the jurisdiction of Bairgania police station in Muzaffarpur district. He owned a house of his own in that locality, and he employed several persons as his attendants. Among those attendants were Achheylal and Ram Bachan, who served as his minims, while Jogender Singh acted as his sepoy and Ram Surat functioned as his personal servant. The appellants are villagers who were acquainted with Jogender Singh, one of the accused persons in the case. According to the prosecution’s narrative, on 24 March 1960 the businessman received a sum of fifteen thousand rupees in cash from his partner Nathan Mary. The transaction was witnessed by his minims Achheylal and Ram Bachan, who were present at the time. Because the money was delivered in various denominations, the businessman asked the two minims to count the amount to verify it. Subsequently, he placed the counted cash into several separate bundles, and then added an additional two thousand rupees that he removed from his iron safe. He combined the original fifteen thousand rupees with the extra two thousand rupees, forming two bundles that were then merged into a larger bundle. A slip bearing his signature and the date was affixed to the larger bundle as evidence of his handover. The businessman subsequently declared that he handed over a total of seventeen thousand rupees, comprising the two bundles, to his wife Damyanti Devi.

According to the record, the money bundles that Jaiswal had received were handed over by him to his wife, Damyanti Devi, who in turn placed the bundles inside the iron safe that was situated on the first floor of the house in a room adjoining the bedroom. At about the same time a series of functions were being organized in the village by the Bharat Sevak Samaj, and Jaiswal acted as the convener for those events. In his capacity as convener he was required to attend to various delegates who had arrived in the village for the programmes. During the days when the functions were taking place he habitually returned home by ten o’clock in the evening. However, on the night of 24 March 1960 the programme continued later than usual, and consequently Jaiswal spent the night at the dharamshala where the function was being held and did not come back to his residence that night. As a result, Damyanti Devi found herself alone in the house on the first floor, her only companion being her three‑and‑a‑half‑year‑old daughter, Mina. It appears that Damyanti retired to her bedroom with her young child and that, on the ground floor, three of the accused persons—Achheylal, Ram Bachan and Jogender Singh—were sleeping. The fourth servant, Ram Surat, was on leave, meaning that out of the four servants employed by Jaiswal, three were present on the premises. The family cook, Batahu, was sleeping in a verandah attached to the motor‑garage. The following morning Batahu was awakened by Achheylal, who informed him that the door of the hall was open. Acting on this information, Achheylal and Batahu proceeded to the first floor where they discovered Damyanti Devi lying dead in a pool of blood. She had sustained cut injuries to her neck that had evidently caused severe bleeding. The little girl Mina was still fast asleep. The bundles of cash were found to have been removed by the perpetrators who also committed the murder of Damyanti Devi. A message was then sent to Jaiswal, and upon his return to the house steps were taken to lodge a report with the police station regarding the commission of the offence, thereby initiating the investigative process. The investigation resulted in the six accused being charged and tried for the offence punishable under section 396 of the Indian Penal Code. In brief, that is the essence of the prosecution’s case. The prosecution sought to establish the guilt of the six accused by relying on the confessional statements of three of them, the recovery of the stolen money, and the discovery of blood‑stained garments in connection with the two appellants. No direct evidence was presented to identify how, when and by whom the crime was committed. Apart from the confessions, the prosecution’s case was based on circumstantial evidence, and the trial in the lower courts proceeded on that basis. For the purpose of the present appeals, it was deemed unnecessary to recount the specific contents of the confessional statements concerning the manner in which the offence was carried out or the role played by each accused. It is recorded that Ram Surat, Achheylal and Ram Bachan made confessional statements.

In this case, the High Court as well as the learned Sessions Judge had both held that the charge against the three accused persons was proved. The Supreme Court indicated that it was not required to examine the correctness or propriety of the convictions of those three accused persons for the purpose of the present appeals. What was important, the Court noted, was the concurrent finding of the lower courts that the confession made by Ram Surat was voluntary and truthful. Both the High Court and the Sessions Judge had taken no hesitation in admitting that confession against Ram Surat and had relied upon it, together with other evidence, to convict him. The judgment of the lower courts therefore rested on the acceptance of Ram Surat’s confession as genuine and on the other material that had been produced during the trial.

The Court then turned to the evidence that the prosecution had adduced against the two appellants. The prosecution sought to prove the charge against them by relying on the statements contained in the confessions of the three accused persons and on several other discoveries, including blood‑stained garments recovered from both appellants and the presence of blood stains in the house of the appellant Haricharan. The High Court, referring to the decision of this Court in Ram Prakash, observed that it was permissible to consider the confessional statements of co‑accused persons and to examine whether those statements were corroborated by any other evidence placed before the court. Applying that approach, the High Court concluded that the blood stains found on the clothing of both appellants and the blood stains discovered in Haricharan’s house provided sufficient corroboration of Ram Surat’s confession. Consequently, the High Court affirmed the conviction of the two appellants under section 396 of the Indian Penal Code. The High Court also addressed the appropriate sentence. According to the confessions of Ram Surat, Achheylal and Ram Bachan, the two appellants had played a major role in the commission of the offence, and all three confessors alleged that the fatal injuries had been caused by the appellants. In light of those statements, the High Court enhanced the sentence originally imposed by the trial Judge, directing that instead of a term of imprisonment for life, the appellants should be sentenced to death. The only issue left for the Supreme Court to decide was whether the High Court’s approach was justified under section 30 of the Evidence Act, as consistently interpreted by judicial decisions for more than half a century. Before addressing that question of law, the Court indicated that it would briefly refer to the nature of the other evidence on which the prosecution relied against the appellants.

In this case, the two appellants were taken into custody on the day following the alleged murder. Their arrest was based on a report filed by Jaiswal, who alleged that his wife’s murder had been carried out by four of his employees together with the two appellants. On 26 March 1960, at approximately three‑thirty in the afternoon, the investigating officer examined the narrow passage that lay between the southern wall of Jaiswal’s warehouse and the northern wall of the east‑facing room belonging to appellant Harisharan. During this inspection the officer observed blood stains on the ground of the lane as well as on the interior walls of the grain warehouse. Subsequently, a shirt that displayed similar blood stains was discovered. Portions of soil that contained blood stains, together with the shirt, were forwarded to the chemical analyst for examination. The analyst was unable to identify the source of the blood present on the soil samples, but confirmed that the stains on the shirt seized from appellant Harisharan contained human blood. In addition, the nails of appellant Harisharan were found to have blood traces; the nails were trimmed by a barber and also sent to the chemical analyst. The analyst’s report indicated that the blood stains on these items were too minute to permit a serological test. With respect to the second appellant, Jogia, investigators recovered a red‑coloured check‑gamcha that bore stains resembling blood from the top of an earthen granary in his house at roughly six o’clock in the morning on 27 March 1960. The gamcha was sent to the chemical analyst, whose report stated that the stains were those of human blood. It is noteworthy that when Jogia’s house was searched on 26 March 1960, this gamcha had not been located, as indicated earlier. The discoveries of the blood‑stained shirt, the blood‑marked nails, the stained soil, and the stained gamcha were all made on the morning after the night of the murder, the earliest at about eight o’clock and the latest at about six o’clock the following day.

The High Court regarded the presence of human blood on the shirt worn by Harisharan, on his nails, and at several locations beginning with the lane leading to his residence and on various objects kept in his house as a material factor that required consideration. The Court observed that the confessional statements made by co‑accused persons, particularly the statement of Ram Surat, were corroborated by the discovery of these blood stains. On that basis, the High Court concluded that the evidence justified convicting both appellants under section 396 of the Indian Penal Code. The Court then identified the legal issue concerning the effect that a confession made by a co‑accused can have in a criminal trial. Determination of that issue required an examination of section 30 of the Act. Section 30 provides that when more than one person is tried jointly for the same offence, and a confession made by one of those persons, which implicates the maker and also another accused, is proved, the court may consider that confession both against the maker and against the other accused. The basis on which this provision

The Court explained that when a person confesses and thereby implicates himself, the confession ordinarily indicates that the maker is speaking the truth. Consequently, if such a statement is made voluntarily and it qualifies as a confession because it incriminates the maker, it is unlikely that the maker would falsely incriminate himself. For this reason Section 30 of the Evidence Act permits the court to consider that confession not only against the maker but also against any co‑accused who is being tried alongside the maker. The Court noted that a voluntary confession can always be used against the person who made it, although, as a matter of judicial prudence, criminal courts ordinarily look for some corroboration before relying on a confession, especially when the confession has later been withdrawn. The Court clarified that the present appeals do not concern the requirement of corroboration. The main issue before the Court was the precise scope and effect of the provision in Section 30 that allows a co‑accused’s confession to be taken into consideration. The Court emphasized that the confession referred to in Section 30 is not classified as “evidence” within the meaning of Section 3 of the Act.

Section 3 defines “evidence” to include (1) all oral statements that the court directs or requires witnesses to make in relation to matters of fact, and (2) all documents produced for the court’s inspection, described respectively as oral and documentary evidence. The Court observed that a confession made by an accused does not fall under either category: it is neither an oral statement made before the court at its direction nor a document produced for inspection. Therefore, a confession does not satisfy the technical definition of evidence contained in Section 3. Nevertheless, Section 30 expressly authorises the court to take such a confession into consideration against a co‑accused, which means that, although the confession is not “evidence” in the strict statutory sense, it may be treated as a relevant element that the court may consider. Importantly, the Court stressed that, like any other material before it, the court is not bound to give effect to the confession; the court has discretion to decide whether to consider it at all. When evidence defined by the Act is placed before the court, the court is duty‑bound to consider it, though the weight to attach remains a matter of judicial discretion. In contrast, a confession under Section 30 merely provides the court with the option to consider it, and the court is not compelled to do so.

In this context, the Court observed that it is not permissible to simply disregard a piece of evidence merely because it is a confession. Nevertheless, the Court may adopt a different stance when dealing with a confession because section 30 only empowers the Court to consider the confession, not to make it mandatory. The Court noted that this issue has been examined repeatedly in judicial decisions and that a consistent rule has emerged: a confession cannot be treated as substantive evidence against a co‑accused. When the prosecution relies on the confession of one accused to incriminate another, the proper method, according to the Court, is first to evaluate all other evidence that the prosecution has produced against the second accused. If that other evidence appears satisfactory and the Court is inclined to believe that it can support the charge framed, only then may the Court turn to the confession, using it to confirm the conclusion that the other evidence appears to warrant. The Court cited Sir Lawrence Jenkins’s observation in Emperor v. Lalit Mohan Chuckerbuttv that a confession can merely “lend assurance to other evidence against a co‑accused.” Similarly, Justice Reilly, in In re. Peryaswami Noopan, explained that section 30 does not go beyond allowing a confession to be added to the scale of evidence when there is already sufficient evidence against the co‑accused to justify conviction. The Privy Council, in Bhuboni Sahu v. King, expressed the same view. Sir John Beaumont, speaking for the Board, described a co‑accused’s confession as a very weak form of evidence. He explained that such a confession does not fall within the definition of “evidence” in section 3 of the Evidence Act because it is not sworn, not given in the presence of the accused, and cannot be subjected to cross‑examination. Consequently, it is considerably weaker than the testimony of an approver, which does not suffer those infirmities. Although section 30 permits the Court to consider the confession, the provision does not elevate the confession to the status of proof. The Court stressed that other evidence must exist; the confession is merely one element among the totality of facts proved, to be placed on the scale and weighed alongside other evidence. The Court further noted that, because anything the Court considers becomes evidence in a generic sense, the confession, by virtue of section 30, is regarded as evidence in that broad context, even though it does not satisfy the technical definition of evidence under section 3.

Although a confession may be regarded as evidence in the generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act. Consequently, when the court is dealing with a case against an accused person, it cannot commence its appraisal with the confession of a co‑accused. The court must first consider the other evidence presented by the prosecution and only after forming an opinion on the quality and effect of that evidence may it turn to the confession for the purpose of obtaining assurance of the conclusion of guilt that the judicial mind is about to reach on the other evidence. The authorities cited for this principle include (1) (1911) I.L.R. 38 Cal. 559 at p. 588; (2) (1913) I.L.R. 54 Mad. 75 at p. 77; and (3) (1949) 76 I.A. 147 at p. 155. In brief, the effect of the provisions contained in section 30 is that a confession can be considered only after the court has evaluated the remaining prosecution evidence. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh (1), where the decision of the Privy Council in Bhuboni Sahu’s (2) case was cited with approval.

In order to appreciate fully the effect of section 30, it is helpful to refer to the position of evidence given by an accomplice under section 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person and that a conviction is not illegal merely because it is based on uncorroborated testimony of an accomplice. Illustration (b) to section 114 of the Act, however, makes clear that an accomplice is unworthy of credit unless his testimony is corroborated in material particulars. Reading sections 133 and 114 together, it follows that although an accomplice is a competent witness, prudence requires that his evidence not be acted upon unless it is materially corroborated; this principle has been reinforced by judicial decisions on the point. When the court deals with an accomplice’s evidence, it may treat that evidence as substantive and must inquire whether it is materially corroborated. The accomplice’s testimony is evidence under section 3 of the Act and must be dealt with accordingly. While such testimony is undeniably of a tainted character and therefore weak, it remains evidence and may be acted upon provided it is corroborated in material particulars. The statements contained in the confessions of co‑accused persons, however, stand on a different footing. In cases where the prosecution relies on such confessions against an accused, the court cannot begin by examining those statements; the stage for considering the confessional statements arrives only after the other evidence has been considered and

The Court explained that the approach required for dealing with evidence of an accomplice differs clearly and unquestionably from the approach required for statements made in a confession by an accused person, and that this distinction is well‑known and firmly established. The Court observed, however, that in the case of Ram Prakash (1) certain remarks had been made that did not appear to recognise this distinction. In that case Imam J., speaking for the Court, had said that “an examination of the reported decisions of the various High Courts in India 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 High Court in the present matter interpreted the latter part of this observation to mean that, like the evidence of an accomplice, a confessional statement of a co‑accused could be acted upon if it were corroborated in material particulars. The Supreme Court held that the context of Imam J.’s observation showed that no such proposition was intended. In fact, the other evidence against the appellant Ram Prakash was so strong that the Court agreed with the High Court’s conclusion that the evidence was satisfactory and, in that context, the co‑accused’s confessional statement was considered. Consequently, the Supreme Court found that the High Court erred in treating the decision in Ram Prakash (1) as a departure from the established principles governing the admissibility and effect of confessional statements made by co‑accused persons. The Court therefore first needed to determine whether the evidence apart from the confessional statements of the co‑accused, particularly the confession of Ram Surat on which the High Court had heavily relied, was satisfactory and sufficient to prove the prosecution’s case. Only if that evidence were satisfactory could the Court seek confirmation of its conclusion from the confession. The Court held that the evidence concerning the discovery of bloodstains, which the prosecution relied upon, was wholly insufficient to justify the charge against both appellants. Accordingly, the Court could not accept the argument advanced by counsel that the blood‑stain evidence proved the prosecution’s case, and noted that the High Court’s judgment itself had found against the appellants.

In this case the Court observed that the High Court had based its finding largely on the view that the confessions of the co‑accused could be examined first and that the remaining evidence could be treated merely as corroboration of those confessions. The Court therefore concluded that the High Court was not correct in upholding the conviction of the two appellants under section 396 of the Indian Penal Code. The Court acknowledged that the confession made by Ram Surat was a detailed statement which assigned a major role in the alleged offence to the two appellants. The Court also noted that this confession had been held to be voluntary and that the part of the confession relating to Ram Surat’s own conduct was established as true. Consequently, the Court recognized that it was not improbable that the portion of the confession pertaining to the conduct of the two appellants might also be true, and that such a reading could generate serious suspicion against them. However, the Court emphasized that even grave suspicion must not replace proof, and that the proper legal approach requires proof beyond suspicion. The Court reiterated a long‑standing principle of criminal law in this country, which holds that a co‑accused’s confession cannot be treated as substantive evidence unless the court is already inclined to accept other evidence and feels it needs an assurance to support the conclusion drawn from that other evidence. The Court stressed that criminal trials do not allow the application of moral conviction or grave suspicion in place of proof. When the evidence presented against an accused is wholly unsatisfactory and the prosecution relies on a co‑accused’s confession, the presumption of innocence inherent in criminal jurisprudence assists the accused and obliges the Court to return a verdict that the charge is not proved, thereby granting the benefit of doubt to the accused. The Court found that this situation applied to the present appeals. Accordingly, the Court allowed the appeals, set aside the orders of conviction and sentence passed against Haricharan Kurmi and Jogia Hajam, and directed that the accused be acquitted.