03 February 1964
Supreme Court


Case number: Appeal (crl.) 208 of 1963






DATE OF JUDGMENT: 03/02/1964


CITATION:  1964 AIR 1184            1964 SCR  (6) 623  CITATOR INFO :  R          1977 SC1579  (25)  R          1987 SC 955  (10)

ACT: Evidence Act-Confession of co-accused-Not "evidence"  within the  meaning of s. 3 Evidence Act-Not  substantive  evidence against  coaccused-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). ss. 3, 30, 133.

HEADNOTE: 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 hanged.  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 Punjab [1959]  S.C.R. 121  and  that the High Court committed an error in  law  in treating   the   confession  made  by  the   co-accused   as substantive evidence against the appellants. Held:     (i) Though a confession mentioned in s. 30 of  the Indian  Evidence 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 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  per- missible  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,  Emperor v. Lalit Mohan Chukerbutty, [1911]  I.L.R.  38 Cal. 559.  In re: Perivsswami Moopan, [1913] I.L.R. 54  Mad. 75  and  Bhuboni  Sahu  v. The King,  [1949]  76  I.A.  147, followed. (ii) The distinction between evidence of an accomplice under s. 133 and confession tinder s. 33 Evidence Act is that  the former is evidence under s. 3 and the court may treat it  as substantive   evidence  and  seek  corroboration  in   other evidence but the latter is not evidence under S. 3, and  the court  should first start from other evidence and then  find assurance in the confessional statement for conviction. 624 (iii)  The High Court was in error in taking the  view  that the decision in Ram Prakash’s case was intended to strike  a dissenting  note  from the  well-established  principles  in regard  to the admissibility and the effect 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 prove the prosecution case.

JUDGMENT: 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 with 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 Jaiswal.  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 improvements 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                             625 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 appellants.   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  ’he trial  Judge  has  been confirmed.  In  regard  to  the  two appellants,  however, the High Court took the view that  the ends  of justice required that the sentence of  imprisonment for  life  imposed  on them should be enhanced  to  that  of death.  Accordingly, the rule against them was made absolute and  ;they  have been ordered to be hanged.  It  is  against this  order  of  conviction and sentence  that  the  present appeals  have been brought before us by special  leave;  and the short question of law which has been raised before us by Mr.  Tatachari  is that the High Court has erred in  law  in treating  the  confession made by the co-accused  Ram  Surat Choudhury as substantive evidence against them.  This course adopted  by the High Court in dealing with the case  of  the appellants  on the basis of the confession made by  the  co- accused  person  is,  it is  urged,  inconsistent  with  the consensus  of judicial opinion in regard to the  true  scope and  effect  of  section  30  of  the  Indian  Evidence  Act (hereinafter called ’the Act’). These  appeals were argued before a Division Bench of  three learned  Judges  of  this Court and it was  brought  to  the notice  of the said Bench that in dealing with the  case  of the appellants in the light of the confession made by a  co- accused   person,   the  High  Court  had  relied   on   the observations made by this Court in Ram Prakash v. The  State of   Punjab.(1)  Since  these  observations,  prima   facie, supported the view taken by the Patna High Court, the  Divi- sion Bench thought it necessary to refer this matter to a (1) [1959] S.C.R. 1291. 134-159 S.C.-40. 626 larger  Bench  in  order that the correctness  of  the  said observations  may  be examined.  That is how  these  appears have come, before a Constitution Bench., The  facts leading to the prosecution of the appellants  lie within a narrow compass, and so far as the point which falls to be considered in the present appeals is concerned,  there is  no  dispute in respect of the said  facts.   Deokinandan Jaiswal is a fairly wealthy businessman and lives in village Dumarbana  within  the police station of  Bairgania  in  the district  of  Muzaffarpur.   He  has a  house  of  his  own. Achheylal  and  Ram  Bachan  served  under  him  as  minims. Jogender  Sinch  was Jaiswal’s sepoy and Ram Surat  was  his personal  servant.  The appellants are the  co-villagers  of Jogender  Singh  who  was one of the  accused  persons.   It appears  that on the 24th March, 1960, Jaiswal had  received Rs. 15,000 in currency notes from his partner Nathan Mary in the  presence  of his minims Achheylal and  Ram  Bachan;  in fact,  as the said amount was handed over to Jaiswal in  the form  of different currency notes, Ram Bachan and  Achheylal were asked by him to count the said amount.  The said amount was  then put in different bundles by Jaiswal and to it  was added another amount of Rs. 2,000 which he took out from his iron  safe.   The two bundles were then put  together  in  a bigger  bundle and to it was attached a slip containing  his signature  and date.  According to Jaiswal, he  handed  over the amount of Rs. 17,000 thus put in two bundles to his wife Damyanti  Devi,  and in her turn, she put the  said  bundles into the iron safe which had been kept at the first floor of the  house in the room adjoining the bed-room.   About  this time,  some  functions were organised by  the  Bharat  Sevak Samaj in the village and Jaiswal was the convener in  regard to  the said functions.  Naturally, he had to attend to  the delegates  who  had  come  to  the  village  for  the   said



functions.  During the days of these functions, Jaiswal used to  return  home by about 10 P.m., but on the night  of  the 24th March, 1960, the function went on late, and so, Jaiswal slept at the Dharamshala where the function took ’Place  and did  not  return home.  That is how Damvanti Devi  was  left alone in the house on the first floor and her only companion was her                             627 child Mina about 3 1/2 years old.  Apparently, Damyanti Devi retired  to  her bed-room with her little child and  on  the ground  floor  were sleeping three of the  accused  persons, Achheylal,  Ram Bachan and Jogender Singh Ram Surat  was  on leave, so that out of the four servants employed by Jaiswal, three  were sleeping on the premises.  Batahu, the  cook  of the family, was sleeping in a verandah attched to the  motor garage. Next  day Batahu was awakened by Achheylal who  reported  to him that the door of the hall was open.  Thereupon Achheylal and  this  witness went on the first floor  and  found  that Damyanti Devi was lying dead in a pool of blood.  There were cut injuries in her neck which had presumably caused  severe bleeding.   The  little  girl Mina  was  fast  asleep.   The bundles of currency notes had been removed by the miscreants who  had committed the murder of Damyanti Devi.   Thereupon, word  was  sent to Jaiswal and on his return to  the  house, steps  were taken to report to the police station about  the commission  of the offence; and that set  the  investigation machinery into operation.  As a result of the investigation, the six accused persons were out up for their trial for  the offence under s. 396 I.P.C. That, in brief, is the nature of the prosecution case. The  prosecution  sought to prove its case against  the  six accused persons by relying on the confessions made by  three of  them, the recovery of the stolen property and  discovery of  bloodstained clothes in respect of the  two  appellants. There  is no direct evidence to show how, when, and by  whom the  offence was committed.  Besides the  confessions,,  the evidence  on which the prosecution relies is  circumstantial and  it is on this evidence that the case has been tried  in the courts below.  For our purpose in the present appeals it is  unnecessary  to  refer to the details  set  out  by  the confessional  statements in regard to the commission of  the offence  rind  the part played by each one  of  the  accused persons. Ram Surat, Achheylal and Ram Bachan made confessions and  it has  been  held  by the High Court as well  as  the  Jearned Sessions Judge that the charge against them is 628 proved.  With the correctness or propriety of the conviction of these accused persons we are not concerned in the present appeals.  The only point to which reference must be made  at this  stage  is that there is a concurrent  finding  of  the courts  below  (that  the confession made by  Ram  Surat  is voluntary  and true.  In fact, both the courts did not  feel any  hesitation in taking the said confession  into  account against  Ram  Surat who made the said  confession  and  con- victing  him  on the said confession read in  the  light  of other evidence adduced against him.  The charge against  the two  appellants  has  been  sought  to  be  proved  by   the prosecution  by the statements contained in  the  confession made  by  the  three  accused  persons  and  certain   other discoveries, such as blood-stained clothes with both of them and   stains  of  blood  in  the  house  of  the   appellant Haricharan.  We will presently refer to this evidence.   The High Court took the view that having regard to the  decision



of this Court in the case of Ram Prakash(1), it was open  to the  High  Court to consider the evidence  supplied  by  the confessional  statements made by the co-accused persons  and enquire  whether  the said evidence  received  corroboration from   any  other  evidence  adduced  by  the   prosecution. Approaching  the question from this point of view, the  High Court  came to the conclusion that the blood stains  on  the clothes  found  with both the appellants  and  blood  stains found  in  the house of the  appellant  Haricharan  afforded sufficient corroboration to the confession of Ram Surat, and so,  it has confirmed the conviction of the  two  appellants under  s.  396  I.P.C. The  High  Court  then considered the   question  about  the sentence which should be imposed on the two appellants.   It appeared  from  the confession of Ram Surat as well  as  the confessional statements of Achheylal and Ram Bacban that the two appellants had played a major part in the commission  of the  offence.  In fact, the injuries which proved fatal  are alleged  by all the 3 accused persons who confessed to  have been  caused by the two appellants.  It is in the  light  of these  statements that the High Court was persuaded  to  en- hance  the sentence imposed by the trial Judge  against  the appellants and it has directed that instead of  imprisonment for life, the sentence of death ought to be imposed on (1)  [1959] S.C.R. 1219.                             629 them.   That  is how the only question which calls  for  our decision  in the present appeals is the approach adopted  by the  High Court justified by the provisions of s. 30 of  the Act  as  it has been consistently  interpreted  by  judicial decisions for more than half a century ? Before we address ourselves to this question of law, we  may briefly  indicate the nature of the other evidence on  which the   prosecution  relies  against  the   appellants.    The appellants  were arrested the next day after the  commission of  the offence on the report made by Jaiswal that  he  sus- pected that the murder of his wife had been committed by his four  employees  and their accomplices, the  two  appellants before us.  On the 26th March, 1960, at about 3.30 P.m.  the investigation officer visited the lane between the  southern wall of Jaiswal’s godown and the northern wall of the  east- facing room of the appellant Haricharan and found some blood stains  in  the lane and on the walls of the  grain  godown. Later, a shirt bearing blood stains was also found.   Pieces of  earth  containing  blood  stains  and  the  shirt   were subsequently  sent to the Chemical Analyser.  The origin  of the blood found on the pieces of earth sent to the  Chemical Analyser  could not be determined by him, but the stains  of blood  on the shirt which was seized from the person of  the appellant  Haricharan  were found to have  traces  of  human blood.   Similarly, the nails of Haricharan’s  hands  showed traces  of blood and they were got cut by a barber and  sent to the Chemical Analyser.  The report shows that these blood stains were too small for serological test.  The High  Court thought that "the presence of human blood on the shirt which Haricharan  was  wearing, his nails and  at  several  places beginning from the lane leading to his house and on so  many materials  kept  in his house is a factor" which had  to  be taken  into  account.  These discoveries were made  about  8 A.M. following the night of the murder. In  regard  to  the appellant Jogia,  a  red-coloured  check gamcha  which bore blood-like stains was recovered from  the top of the earthern granary in his house at about 6 A.M.  On 27th  March,  1960.  This gamcha was sent  to  the  Chemical Analyser and it is reported to bear stains of human blood It



may  be added that when the house of Jogia was  searched  on the 26th March, 1960 this gaamcha was not found as 630 we have just indicated, the judgment of the High Court shows that it took the view that the confessional statement by the co-accused persons of the appellants, particularly Ram Surat was  corroborated by the discovery of blood stains and  that 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  untrue, 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-               (1)   all statements’ which the Court  permits               or requires to be made before it by witnesses,               in relation to matters of fact under  inquiry;               such statements are called oral evidence;                                    631               (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  (1)  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  not  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 prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is  to consider the other evidence against such  an  accused person, and if the said evidence appears to be  satisfactory and the court is inclined to hold that the said evidence may sustain  the charge framed against the said accused  person, the  court  turns to the confession with a  view  to  assure itself that 632 the  conclusion which it is inclined to draw from the  other evidence is right.  As was observed by Sir Lawrence  Jenkins in  Emperor v. Lalit Mohan Chuckerbuttv(1) a confession  can only be used to "lend assurance to other evidence against  a co-accused".   In  In re.  Peryaswami Noopan,(2)  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(1) the Privy Council  has expressed the same view.  Sir.  John 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 the facts proved in the case, it can be put into the scale and weighed with the other evidence."  It would  be  noticed  that  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 (1)  (1911) I.L.R. 38 Cal. 559 at p. 588.



(2)  (1913) I.L.R. 54 Mad. 75 at p. 77. (3)  (1949) 76 I.A. 147 at p. 155.                             633 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(1) where the decision of the  Privy Council  in  Bhuboni  Sahu’s(2) 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 accomplice  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 accomplice 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.   In  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 (1)  [19521 S.C.R. 526. (2) (1949) 76 I.A. 147 at p. 155. 634 the  said  confessional statements arrives  only  after  the other  evidence is considered and found to be  satisfactory. The difference in the approach which the Court has to  adopt in  dealing with these two types of evidence is thus  clear, well-understood and well-established.  It, however,  appears that  in Ram Prakash’s case(1), some observations have  been made which do not seem to recognize the distinction  between the  evidence of an accomplice and the statements  contained in  the  confession  made by an accused  person.   "An  exa- mination  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 this observation has  been interpreted  by  the  High  Court in  the  present  case  as



supporting the view that like the evidence of an accomplice, a  ,confessional  statement of a co-accused  person  can  be acted  upon if it is corroborated in  material  particulars. In  our opinion, the context in which the  said  observation was made by this Court shows that this Court did not  intend to  lay  down  any such proposition.   In  fact,  the  other evidence  against  the appellant Ram Prakash was of  such  a strong character tnat this Court agreed with the  conclusion of  the  High  Court and held that  the  said  evidence  was satisfactory  and  in  that  connection,  the   confessional statement  of the coaccused person was considered.  We  are, therefore,  satisfied  that the High Court was in  error  in this  case  in  taking the view that  the  decision  in  Ram Prakash’s(1)  case was intended to strike a discordant  note from  the  well-established  principles  in  regard  to  the admissibility and the effect of confessional statements made by co-accused persons. Considering  the evidence from this point of view,  we  must first  decide  whether the evidence other than  the  confes- sional  statements of the co-accused  persons,  particularly Ram Surat, on whose confession the High Court has substan- (1)  [1959] S.C.R. 1219.                             635 tially  relied,  is  satisfactory and  tends  to  prove  the prosecution  case.   It  is only if  the  said  evidence  is satisfactory and is treated as sufficient by us to hold  the charge  proved against the two appellants, that an  occasion may  arise to seek for an assurance for our conclusion  from the said confession.  Thus considered, there can be no doubt that  the  evidence about the discovery of blood  stains  on which  the  prosecution relies is entirely  insufficient  to justify the prosecution charge against both the  appellants. In  our opinion, it is impossible to accede to the  argument urged  before us by Mr. Singh that the said evidence can  be said  to prove the prosecution case.  In fact, the  judgment of  the High Court shows that it made a finding against  the appellants   substantially  because  it  thought  that   the confessions  of  the  co-accused  persons  could  be   first considered and the rest of the evidence could be treated  as corroborating  the  said confessions.   We  are,  therefore, satisfied  that the High Court was not right  in  confirming the  conviction of the two appellants under s. 396  ,of  the Indian Penal Code. It  is  true  that the confession made by  Ram  Surat  is  a detailed statement and it attributes to the two appellants a major  part  in the commission of the offence.  It  is  also true  that  the  said  confession  has  been  found  to   be voluntary,  and true so far as the part played by Ram  Surat himself  is concerned, and so, it is not unlikely  that  the confessional  statement in regard to the part played by  the two  appellants  may also be true; and in  that  sense,  the reading of the said confession may raise a serious suspicion against the accused.  But it is precisely in such cases that the  true  legal  approach must be  adopted  and  suspicion. however  grave,  must not be allowed to take  the  place  of proof.   As  we  have  already indicated,  it,  has  been  a recognised  principle of the administration of criminal  law in this country for over half a century that the  confession of  a  co-accused person cannot be  treated  as  substantive evidence and can be pressed into service only when the court is  inclined  to’  accept  other  evidence  and  feels   the necessity of seeking for an assurance in support of its con- clusion  deducible,  from the said  evidence.   In  criminal trials,  there  is no scope for applying  the  principle  of moral  conviction  or grave suspicion.   In  criminal  cases



where  the other evidence adduced against an accused  person is wholly 636 unsatisfactory and the prosecution seeks to rely on the con- fession of a co-accused person, the presumption of innocence which  is  the basis of criminal jurisprudence  assists  the accused  person and compels the Court to render the  verdict that  the  charge is not proved against him, and so,  he  is entitled  to the benefit of doubt.  That is  precisely  what has happened in these appeals. In  the  result, the appeals are allowed and the  orders  of conviction  and sentence passed against the  two  appellants Haricharan  Kurmi  and  Jogia Hajam are set  aside  and  the accused are ordered to be acquitted. Appeals allowed.