Rowland, J.The Agency Sessions Judge of Koraput has made this reference for confirmation of the sentences of death passed on Sadasibo Majhi and on Jalla Dhonorjoy Domb u/s 302, I.P.C., for the murder of Sunamani Dondasena, a widow aged about 60, resident in village Jodapalli, a hamlet of Dungiaputthi. The murder is said to have taken place on the night of 8th November 1937, in the course of a dacoity committed by the two prisoners above-named and Orjuno Challan, Akutia Gudia and Gusang Soma at the house of Sunamani Bewa. It was the pro, secution case that this old woman was of substantial means and that in the dacoity considerable sums in cash as well as numerous gold ornaments including properties of the lady herself and articles deposited with her by way of pledge or pawn were stolen by the dacoits and that some of the stolen properties were recovered from the possession of the five persons I have named and also from Chanda Loichan and Kepai Ghasi who are said to have received such articles from the dacoits knowing them to be stolen property.

2. On these facts the Stationary Sub-Magistrate of Jaypur committed for trial at the Court of Session these seven persons, namely Sadasibo Majhi (accused 1), Orjuno Challan (accused 2), Akutia Gudia (accused 3), Jalla Dhanurjoy Domb (accused 4), Gusang Soma (accused 5), Chanda Loichan (accused 6) and Kepai Ghasi (accused 7). Against the first five he framed charges under Sections 449, 396 and 302, I.P.C. Against the sixth and seventh the charge framed was u/s 414. The fourth accused was also charged u/s 75, I.P.C., as being liable to enhanced punishment by reason of previous convictions. When the case came before the Sessions Judge, he framed a new charge under Sections 302 and 34, I.P.C., and proceeded to try accused 1 to 5 on this charge. He excluded from the trial the charge against accused 6 and 7 reserving their case for a separate trial. As regards the charges under Sections 449 and 396 against accused 1 to 5, he appears neither to have cancelled these charges nor to have taken up the trial of them. The Sessions Judge ought to have recorded some order in respect of these charges and should not have left them in the air. He has given no reason for not trying them; and he was not competent (under Section 215) to quash the commitment, though he could (under Section 240) stay the trial of some charges or allow them to be withdrawn on conviction being had on the murder charge: in that case the consequences set forth in Section 240 would follow in the event of the conviction being set aside.

3. If his intention was to withdraw the charges, I would consider it, in the words of Fazl Ali J. in Kunja Subudhi v. Emperor AIR (1229) Pat. 275 "premature" to do so "before there was time to judge what value could be properly attached to the confession and which part of it was liable to be rejected and which part of it had been sufficiently corroborated." "The rule of caution" (it was there said)

is that it is better to have too many charges than too few and once a charge has been framed, it should not be dropped until the conclusion of the trial unless on the face of it, it is wholly inappropriate or the trial is open to attack on the ground of misjoinder or multifariousness of charges.

4. The facts and the history of the investigation are stated in the judgment of the Sessions Judge and it is unnecessary to repeat them at length. The deceased was last seen alive in her own village Jodapalli on 8th November, and her body was found about a hundred yards from her house at a stream called Kusumjodi the next morning. Death was due to strangulation with dislocation of vertabrae of the neck. There were cut marks on her left ear from which a gold ornament appeared to have been torn. No fruitful clue was obtained till about the beginning of December when the police got some information which led them to make searches. Properties were recovered from the possession of each of the five accused. I shall deal later with the recoveries and evidence of identification of some of the properties. Four of the accused, that, is to say all except accused 1, made confessions before a Magistrate and substantially the convictions rested on the confessions coupled with recovery of stolen and suspicious properties. In addition, there is some evidence of movements and suspicious acts of the accused persons.

5. The first accused and the second, who is his brother-in-law, are residents of Jayantagiri, about twenty miles from the home of the deceased. Accused 3 is of the same village. Accused 4 is of village Mewa, twelve miles from Jayantagiri, and accused 5 is of Sindhiput, six miles from Mewa. According to the confession it was accused 1 who organized and led the gang. He sent accused 3 to call accused 4 and accused 1 and 4 planned to murder Sunamani and take her money and ornaments. It was accused 4 who called accused 5 and brought him in.

6. The description of the murder is given in the several confessions in substantial agreement, the principal difference being that according to accused 2, 3 and 5 these persons were posted outside to keep guard against any interruption while accused 1 and 4 entered the house, overpowered and killed the woman, whereas accused 4 says that while he and accused 1 took the principal parts in gagging the womans mouth and twisting her neck, the other three accused (2, 3 and 5) also assisted in overpowering her by catching her legs and hands. According to the confessions each of the confessing accused got Rs. 60 cash and some ornaments. All the confessions were retracted before the committing Magistrate and at the trial, and the accused persons who made them, have said that they gave those statements under pressure brought by the police. There is no evidence of any such pressure having been brought.

The Magistrate recording the confessions questioned the accused with commendable care and I have no doubt that the confessions were entirely voluntary. One of the accused, namely Gusang No. 5, told the Magistrate that there had been some attempt at tutoring him to change his story so as not to implicate accused 1, but he did not yield to the suggestion.

7. It has been argued that the confessions are self exculpatory, that is to say they did not implicate the makers in the same way as the other persons mentioned in them and therefore should not be considered as against the other accused, particularly accused 1. No doubt Section 30, Evidence Act, requires that the confession should be one affecting its maker and this has been always, since as far back as in Empress of India v. Gunraj (1878) 2 All. 444 understood to mean that the confession must incriminate its maker or it is of no value against a co-accused but each of the confessions in the present case fully implicates its maker in the guilt of dacoity with murder and of participation by assistance at the actual murder, so that principle does not avail the defence here; the law does not go so far as to require that the confession should claim for its maker the leading part in the crime. Then, it is said that a conviction cannot be based on confessions unless there is other circumstantial evidence sufficient to support the conviction independently of the confessions. There is an obiter dictum to this effect in Periaswami Moopan v. Emperor A.I.R (1931) Mad. 177, where Reilly J. observed that,

The confession cannot take the place of evidence against the co-accused, nor can it be added to supplement evidence otherwise insufficient.

8. Now undoubtedly the rule is that the confession of a co-accused uncorroborated by any other evidence is not alone sufficient to support conviction. There is some difference of opinion as to whether this is a rule of law, that is to say a conviction based on confession of co-accused alone would be bad in law, or whether it is a rule of practice which has all the reverence of law. The former view is taken by the Judges composing a Pull Bench of the Calcutta High Court which decided the leading case in Empress v. Ashootosh Chuckerbutty (1879) Cal. 483 and followed by Jenkins C.J. in Emperor v. Lalit Mohan (1911) 38 Cal. 559. The latter was taken in the Allahabad High Court in Emperor v. Kehri (1907) 29 All. 434 arid in the Bombay High Court in Emperor v. Gangappa Kardepa AIR (1914) Bom. 305 where Macleod J. said that:

Confession in Section 80 cannot be restricted to an unretracted confession, as once, a confession is proved, it may be taken into consideration. Nor do I think,

he said,

that words can be read into the Section when there is nothing in the Section to fetter the discretion of the Court, or that there is anything in the Section itself which prevents a Court from convicting after taking the confession into consideration. But, I do think that the High Courts in India have, as they are entitled to do, laid down rules at practice which deserve all the reverence of law so that they ought to be observed by Judges when exercising their discretion u/s 30.

9. In this High Court the Calcutta view was accepted in Devendra Bhattacharya v. Emperor A.I.R (1927) Pat. 257, but not in Sheo Narain Singh v. Emperor A.I.R (1929) Pat. 212 or in Emperor v. Mangru Kisan A.I.R (1938) Pat. 108 . The question which of those views should prevail is in the present case academic, for, on the one hand the whole of the facts are open to us as a Court of fact, and on the other hand, none of the accused is sought to be convicted on an uncorroborated confession. The question may require consideration in a case in which it directly arises. But the point with which we are concerned here, is whether the above rule is to be extended to the length of laying down that when a conviction is sought to be based on the confession of a co-accused together with corroborative evidence, there is a rule that such corroborative evidence cannot be used unless it if sufficient, if believed, itself to support at conviction. This was the opinion of Jackson J. in Empress v. Ashootosh Chuckerbutty (1879) Cal. 483 above referred to. He said:

An accused person other than he who has confessed cannot lawfully be convicted upon such confession alone, nor in my opinion ought he to be convicted on the ground of such confession corroborated by circumstantial evidence, unless the circumstances constituting corroboration would, if believed to exist, themselves support a conviction.

This extension of the doctrine was not accepted by the majority of the Pull Bench. Garth C. J. said:

How far any corroborative evidence would be sufficient, coupled with confession, to convict a prisoner, must depend on the circumstances of each particular case.

In Devendra Bhattacharya v. Emperor A.I.R (1927) Pat. 257 Scroop J. quotes both Empress v. Ashootosh Chuckerbutty (1879) Cal. 483 and Emperor v. Lalit Mohan (1911) 38 Cal. 559 as laying down that corroboration by circumstantial evidence is not sufficient unless the circumstances constituting corroboration would, if believed to exist, themselves support a conviction. With great respect, the majority of the Judges who decided Empress v. Ashootosh Chuckerbutty (1879) Cal. 483 laid down no such proposition, and it was advanced as a rule of prudence, and not of law, even by the minority as is clear from the words I have quoted from the judgment of Jackson J. with whom Mc Donell J. concurred, and I find nothing in the judgment of Jenkins C.J. in the later case to support this extension of the doctrine. Jenkins C.J. said:

The Court can only treat a confession as leading assurance to other evidence against a co-accused. Thus to illustrate my meaning, in the view I take, a conviction on the confession of a co-accused alone would be bad in law.

11. I do not think the learned Chief Justice meant to lay down any doctrine as to the amount of corroboration required. The remarks of Scroop J. seem to me to be obiter dicta and the supposed rule to be not well founded. Its implication is that the Court must assess the effect of the corroborative evidence independently as a condition precedent to considering the confession and applying its mind to determine the cumulative effect of the confession and corroborative evidence taken together. This is a mental gymnastic which I find it difficult to believe that the law requires a Court to practise. The definition of proof in Section 3, Evidence Act, makes the real test to be whether after considering the matters before it the Court believes a fact to exist or considers its existence so probable that a prudent man ought to act upon the supposition that it exists. The criterion is whether the matters before the Court taken as a whole carry conviction. I can find no warrant in the statute for requiring a Court to speculate as to what its findings would be if the materials had been something different, as a preliminary to making up its mind what it thinks of the case on the materials as they stand. Not that I wish in any way to minimize the importance which experience teaches should be attached to independent corroboration of a confession not only in its general outlines but also as against each individual accused affected by it. I would accept, as a rule, at least of prudence if not of law, the statement in Barnabas Christian Vs. Emperor, that against a co-accused a confession "can carry no weight unless it is substantially corroborated by good evidence from other sources." The judgment of the learned Sessions Judge does not show separately the extent to which the case against each individual accused is corroborated by the finds of property; and this aspect of the case needs further examination. (After considering the corroborative evidence against accused 1 by considering the evidence as to identification of property, etc. his Lordship proceeded.)

12. In argument it was sought to discredit the identifications of property on the ground that test identifications were not held. Personally I see no magic about test identifications. The evidence on which the Court has to act is the identification by witnesses at the trial and the question is, are the witnesses to be believed or not I have no doubt as to the identification of material objects 11, 12 and 13 as articles stolen in the dacoity, and I am of opinion that as against this accused there was sufficient corroboration, that the case is true and that he is guilty of the offence. (His Lordship then considered evidence against the other accused and continued.)

13. The explanation of the accused as regards the finding of articles has been in each case on the same lines, that is to say, none of them have claimed to be the owner of any of these properties but all have said that the articles were in some way foisted by the police. Of this there is no evidence and the testimony of the witnesses who speak of the recovery of the articles in the manner alleged by the prosecution has not in any way been shaken.

14. The Sessions Judge has referred to some other corroborative evidence as regards movements of accused. (His Lordship considered this aspect of the evidence and then concluded.) The result of this examination of the evidence is that the case is established fully against all the accused and I would affirm all the convictions. According to the confessions of accused 3 and accused 5, the murder of deceased as well as robbery was in contemplation from the outset, and I believe this to be true. At any rate, there is no room for doubt that the robbery and murder were done in one transaction. The sentence of death imposed on accused 1 and accused 4 is fully merited by them and I would accept the reference and confirm it and dismiss the appeals of all the accused. We have been handicapped in our study of the evidence of this case by the illegible writing of the Sessions Judge Parts of the record could not be correctly transcribed and the brief and there were words which we, referring to the original, could not read. I hope that the Sessions Judge will endeavour in future to prepare a legible record.

Mohamad Noor J.

15. I agree that the reference be accepted and the appeal be dismissed. I would however like to make a few remarks of my own on the value of the confession of an accused affecting another accused who is being jointly tried with him for the same offence. The view taken in Emperor v. Mangru Kisan A.I.R (1938) Pat. 108 which followed Sheo Narain Singh v. Emperor A.I.R (1929) Pat. 212 seems to be that though as a matter of law a confession of a co-accused is sufficient for the conviction of an accused, as a rule of prudence, one must seek corroboration of the confession before conviction. With all respect to the learned Judges who decided the two cases, this view places the confessions of a co-accused on the same footing as 6he evidence of an accomplice, but I venture to think it is not. The evidence of an accomplice is, as a matter of law, sufficient for a conviction. He is a competent witness and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice: Section 133, Evidence Act. The Courts are by law allowed but not compelled to presume him unworthy of credence unless he is corroborated.

16. If in spite of warning, a jury believes him without corroboration, the High Court cannot interfere. If the framers of the Evidence Act intended to attach to the confession of an accused against a co-accused the same value as the evidence of an approver, they would have said so. The confession of an accused can only be considered against his co-accused. Even this would not have been permissible but for Section 30, Evidence Act. The Act itself gives it a position inferior to the evidence of an approver.

17. In practice however in a large number of cases it is immaterial whether the rule of seeking corroboration be taken a rule of practice which has all the reverence of law or whether it be treated as a rule of law. But difficulty is likely to arise in cases tried by jury in which there is nothing against an accused except the confession of his co-accused whether retracted or not. The question may then arise whether the Judge ought to direct the jury to return a verdict of not guilty on the ground that there is no evidence against the accused, or in case the Judge does not give this direction and the jury on this material alone convicts the accused, whether the conviction can be interfered with by the High Court on the ground that it is based upon no legal evidence whatsoever. Garth C.J. in Empress v. Ashootosh Chuckerbutty (1879) Cal. 483 observed as. follows:

A confession by prisoner A, which involves the guilt of prisoner B, is of itself, unsupported by other testimony, evidence of the weakest possible kind against B. It is simply the statement of a third person, not made upon oath or affirmation, and I am of opinion, that no Court ought to convict prisoner B upon such evidence. I consider moreover that if a prisoner were convicted upon such evidence, whether by a jury or otherwise, and were to appeal to this Court, the conviction ought to be set aside; and further, that any Sessions Judge trying such a case before a jury ought to direct them to acquit the prisoner. How far any corroborative evidence would be sufficient, coupled with the confession, to convict a prisoner, must depend upon the circumstances of each particular case.

18. It is clear from this observation that the question whether there can be a conviction on the confession of a co-accused, was treated as one of law and not of prudence. In Emperor v. Lalit Mohan (1911) 38 Cal. 559 Jenkins C.J. went much further and observed as follows:

Reliance has been principally placed on those (confessions) of the accused Soilen Das and Susil Biswas, and these the prosecution would use not only against the person making them but also against the rest of the accused. The warrant for this is to be found in Section 30, Evidence Act, which 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 language of the Section is guarded, and the history of this Act leaves me in no doubt that this Section was designedly framed in these terms. While "admissions," a word which embraces confessions, are by Section 21 relevant, and may be proved as against the person making them, all that Section 30 provides is; that the Court may take them into consideration, as against other persons. This distinction of language is significant, and it appears to me that its true effect is that the Court can only treat a confession as lending assurance to other evidence against a co-accused. Thus to illustrate my meaning, in the view I take, a conviction on the confession of a co-accused alone would be bad in law. This reading of the Section appears to me to gain confirmation from the language of Section 5.

19. This view was. adopted in this Court in Devendra Bhattacharya v. Emperor A.I.R (1927) Pat. 257 , where Das J. (Scroops J. concurring) held that u/s 30, Evidence Act, the Court may take into consideration a confession made by an accused person against the co-accused, but the Court can only treat a confession as lending assurance to other evidence against a co-accused and a conviction based on the confession of a co-accused alone would be bad in law. I am inclined to agree with the views, set, forth in the two Calcutta cases and that of Das J. in the Patna case above referred to. The case in Devendra Bhattacharya and Others Vs. Emperor, which was an earlier decision, was not brought to the notice of the learned Judges who decided the two eases reported in Sheonarain Singh and Another Vs. Emperor, and Emperor Vs. Mangru Kisan and Another, . If a question arises as to whether a conviction based upon an uncorroborated confession of a co-accused is bad in law, a question which did not arise in the two cases, the matter may require re-cop-sideration. I am not prepared to go to the length of saying that there must be, apart from the confession of a co-accused, independent evidence by itself sufficient for conviction as has been stated as an obiter dicta in a Madras case. This will be making Section 30, Evidence Act, practically useless. But I think that the broad proposition that a conviction can legally be had on an uncorroborated confession of a co-accused is somewhat too wide. In my opinion, the correct law seems to be that there must be some evidence which when weighed after considering the confessions of the co-accused should bring the charge home to the accused.

20. The question however is of academic interest in this case, as there, is not only ample corroboration to the confession of the four prisoners, accused 2 to 5, but there is independent circumstantial evidence against every accused. So far as accused 2 to 5 are concerned, they can safely be convicted oh their own confessions supported as they are by the discovery of the material objects. So far as accused 1 is concerned, the material against him is ample. There can be no doubt that the deceased was murdered on the night in question. She was seen alive in the evening. The condition of the dead body with lobes of ears cut off and the condition in which the house was found leaves no room for doubt that robbery was committed along with murder. Then some properties of deceased which have been sufficiently identified were practically produced by accused 1 and he must be taken have been in possession of them. One may therefore safely presume u/s 114, Evidence Act, (the illustrations are not exhaustive) that accused 1 was either involved in the murder and robbery or, at any rate, he received the stolen property knowing it to be the proceeds 6f the robbery. Having come so far, the little aid taken from the confessions proves the guilt of accused 1 beyond any doubt.