Basil Scott, C.J.
1. The case against the accused is that in concert with Honya and Umya he murdered his brother Mahammad-khan on or about the 25th September 1917 about 8 or 9 in the morning in the forest near Alkeri in Kanara. Honya and Umya were tried jointly with the accused by the Sessions Judge of Kanara and two assessors. Honya and Umya were found guilty upon their own confessions, but the accused Sabitkhan was acquitted, and the Government of Bombay have appealed against his acquittal.
2. The evidence before me is that which was recorded by the Sessions Judge at the joint trial. It establishes that Mahammadkhan was the owner of the most of the land and houses, only eight or nine in number in the village Alkeri which is situated less than a mile and a half from Kirwatty, Kirwatty being on the main road from Yellapur to Kalgutgy, and about twelve miles from the latter place. The relations between Sabitkhan and Mahammadkhan the deceased were very strained. Mahammadkhan had neither wife nor children, and was not disposed to support his brother Sabit and his family. Sabit consequently was obliged to work as a coolie in the Forest Department, and was continually importuning the deceased for assistance which was continually refused, and although the two brothers lived in the same building they did not associate and all their intercourse was unfriendly. On or about the 24th of September 1917, the deceased who was suffering from pains in his stomach decided to go to Kalgutgy for treatment and requested a neighbour named Bussia in the presence of another inhabitant of Alkeri named Bay Munna to accompany him as Bussia was also suffering from pains in the stomach. On the 25th of September the deceased left Alkeri in the morning alone. At all events, he was never seen after that time at Alkeri. He had left a bin of rice in front of his house upon which he had asked a neighbour Day Munna to keep an eye saying he would be back in a few days. About a fortnight after his departure the accused began to make free with the grain. When Day Munna asked him what he was doing with the rice Sabit asked what business it was of his. According to witness Juncu, Sabit said when asked that Maharamadkhan would not be back soon and on several occasions gave rice from the bin to Honya and Umya the convicts at the first trial. Three months after the Ganesh Chaturthi, the accused told Boojang, a shop-keeper of Kirwatty, that Mahammadkhan had gone for medical treatment to Miraj. He began after the crops had bean got in to ask the tenants of Mahammadkhan to pay their rents to him. Four months after the departure of Mahammadkhan, namely, on the 4th of February 1918, the Eanger of the forest having heard that Sabit was trying to collect the rents of Mahammadkhan sent for him and asked him if he had heard from Mahammadkhan and what had become of him. He replied that Mahammadkhan had gone to Miraj and that no letter had come. Later in February at Kirwatty when Postmaster Wycunt delivered him a letter in the presence of Anant, a shopkeeper, Sabit tore it open and asked Anant to read it to him. Both Anant and Wycunt depose to the contents of the letter. Their versions are not verbally identical, but are to the same effect. The letter which was unsigned and undated purported to come from Mahammadkhan from Belgaum, and stated that he was getting better and proposed to go to Miraj. It directed Sabit to collect the rents and pay the assessment and said that if Mahammadkhan wanted money he would let Sabit know. The letter was returned to Sabit. Three of the witnesses who lived at Alkeri deposed to Sabit demanding rent from them and stating that he had a letter from Mahammadkhan. At the end of March the convicts Honya and Umya disclosed a spot in the forest between Alkeri and Kirwatty in which the remains of Mahammadkhan were buried. It was found that his ribs had been broken. Bussia of Alkeri, who has already been mentioned in connection with Mahammadkhan's proposed journey to Kalgutgy, stated that he had been persuaded by Sabit not to go. with Mahammadkhan, and that on the day following, j. e., the 25th September, he had, while driving cattle towards Kirwatty near the village tank, seen Sabit together with the two other accused taking the path from Alkeri to Kirwatty, and half an hour later had seen Mahammadkhan take the same path. The muster roll kept by the Forest Officer shows that Sabit was absent from his work on the 25th and following days of September. The learned Judge says he has no reason to disbelieve Bussia, but he doubts if Bussia could remember exactly the day on which he saw Sabit and the two convicts go along that path because there was no impressive concomitant circumstance. There is no doubt that Mahammadkhan never wont to Belgaum and never reached Kalgutgy and that the letter opened by Sabit in Kirwatty is a false document which might explain the absence of Mahammadkhan and justify Sabit's attempts to collect his rents. If there were no other evidence in the case, and if the evidence of Bussia were discarded, it seems to me there would still be a strong case of suspicion against Sabit as being concerned in the murder of Mahammadkhan.
3. The Sessions Judge, however, had before him not merely this evidence, but also the detailed confessions of Honya and Umya (who had reasons for disliking Mahammadkhan ) who state that Sabit participated with them in the murder of Mahammadkhan and engaged their services on a promise of payment in grain, and that the body was buried with a spade provided by Sabit, the spade which was found in Sabit's house after the confession. These confessions must be taken into consideration against Sabit according to the provisions of Section 30 of the Indian Evidence Act. But the learned Judge seems to have been afflicted by a certain paralysis of his judicial faculty owing to a perusal of reported cases which lay down that a man should not be convicted upon the uncorroborated confession of his co-accused, and reading these cases in conjunction with an observation occurring in the judgment of the Calcutta High Court in the case of Emperor v. Lalit Mohan Chuckerbutty (1911) I.L.R. 39 Cal. 559, to the effect that 'the Court can only treat a confession as lending assurance to the other evidence against a co-accused', he considers himself unable to make use of the confessions at all, because there is not a perfect enough case against the accused without them although as he states he has no doubt whatever that the accused committed the murder. He puts it thus : 'It is not enough that the other evidence should support the confessions, It is the confessions which must support the other evidence which 'must afford a basis broad enough and firm enough to sustain a conviction if the superstructure be steadied by some adventitious and subsidiary prop', such as the confessions.' The learned Judge in the above quotation from Lalit Mohan's case has omitted the concluding words: '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.' The rule which the learned Judge conceives to be binding on him is affirmed by Jackson J. in The Queen v. Chunder Bhuttacharjee (1875) 24 W.R. 42 (Cr.) 43, in this form 'that, when, as against any such person, there is evidence tending to his conviction, the truth or completeness of this evidence being the matter in question, the circumstance of such person being implicated by the confession of one of those who are being jointly tried with him should be taken into consideration as bearing upon the truth or sufficiency of such evidence.'. It is also affirmed in the judgments of Jackson and McDonell JJ. only out of the Full Bench of five Judges in Empress v. Ashootosh Chuckerbutty I.L.R. (1878) Cal. 483where the third question referred was: 'whether such a confession made by one such person may be used as the basis of proof of the offence charged as against the other, and if corroborated, may sustain a conviction ; or whether it is necessary, in order to sustain a conviction, to use such confession only as itself corroborative of other independent evidence.' The answer of the Chief Justice to this question was : 'If the confession is corroborated by other evidence, I do not think it matters whether, in proving the case at the trial, the confession precedes the other evidence, or the other evidence precedes the confession. The course of proof in each case is a question of convenience for the prosecution ; and they have a right to bring forward the evidence in any order they may think fit.'
4. This question has not, so far as I am aware, been considered in any Bombay case. The passage from the judgment in Lalit Mohan's case is only quoted by Shah J. in Emperor v. Gangappa Kardeppa I.L.R.(1913) . 38 Bom. 167; 15 Bom. L.R. 975 in support of the conclusion that no matter which can be taken into consideration only under Section 30, if there is no evidence other than such matter, can form the basis of a legal conviction.
5. I propose to take the judgment of Garth C. J. in Empress v. Ashootosh Chuckerbutty as a correct statement of the law: it gives effect without qualification to the words of Section 30 that 'the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.'
6. The question here is not as in Emperor v. Gangappa Kardeppa I.L.R(1913). 38 Bom. 167; 15 Bom. L.R. 975, whether the Court may convict solely on the confession of a co-accused. The Sessions Judge has not done so, nor have either of the High Court Judges whose difference has led to this reference.
7. The question is rather one of appreciation of evidence. I have to consider whether on the facts established there is corroboration of the story of the confessing co-accused so far as it affects Sabit. I will only make this further remark with regard to Emperor v. Gangappa Kardeppa, that I think Macleod J. went too far when he said in that case (page 176): 'The confession of a co-accused stands on quite a different footing to the testimony of an accomplice, which the Evidence Act treats as having a higher probative value than similar evidence has according to English Law.' I think it will be apparent to any one who peruses the judgment of Lord Reading L. C. J. in Rex v. Baskerville, (1917) 86 L.J.K.B. 28 that except in regard to corroboration of accomplice by accomplice evidence, there is no difference between the law in England and the law in India.
8. As regards the confessions of co-accused the Indian Law has no counterpart in England, but it seems to me that for the purpose of admissibility such confessions stand on the same footing as accomplice evidence and that their weight must depend on the circumstances of each case. I propose therefore to apply to the question of corroboration of the confessions the same rules as are applicable to the corroboration of accomplice evidence. In Hex v. Baskerville, (1917) 80 L.J.K.B. 58a criminal appeal heard by a Court of five Judges specially constituted to lay down rules for future guidance, it was said 'there are propositions of law applicable to corroboration which are beyond controversy. For example, 'confirmation does not mean that there should be independent evidence of that which the accomplice relates or his testimony would be unnecessary' (Reg. v. Mullins (1848) 3 Cox C.C. 526. Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony'. In the same case it was held that 'evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him--that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.' 'The corroboration need not be direct evidence that the accused committed the crime it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence' being Reg. v. Birkett (sic) 8 Car. & P. 732. A good Indian illustration of circumstantial evidence corroborative of the confessions of co-accused is to be found in the judgment of Phear J. in The Queen v. Naga (1875) 23 W.R. (Cr.) 24.
9. Does then the testimony independent of the confessions affect the accused by connecting or tending to connect him with the crime? J start with the fact that Mahammadkhan was murdered and buried in the forest within a mile of his house. Evidence that when that man has been murdered and buried within a mile of his house, his brother and his enemy seeking to profit by his disappearance tells a false story as to his whereabouts, affirming him to have gone to Miraj a town distant 100 miles or more for medical treatment, tends to connect the brother with the crime. So does evidence that the brother has been seen on several occasions giving grain to the confessed murderers to whom he had no ostensible reason to be charitable. So does evidence that when trying to collect rents due to the murdered man he calls the tenants and tells them a false story that he has received a letter of authority from his brother.
10. No Judge who has considered the evidence has expressed a doubt as to the credibility of the witnesses who depose to these events. But the trial Judge and Shah J, are not satisfied that Bussia can remember the day when he saw Mahainmadkhan leave preceded by Sabit, Honya and Umya. Shah J. also appears to have doubted the story of the letter received in Kirwatty. I do not share these doubts, for the date of Mahammadkhan's departure from his village on the day after the Vansha would be known to all the residents, and I see no reason to doubt the truth of the story told by Wycunt and Anant about the letter: it is entirely consistent with the other evidence of the false story spread by Sabit that his brother had gone to Miraj for treatment, although we do not know by what agency Sabit got the letter written and sent to Kirwatty.
11. I concur in the conclusion arrived at by Heaton J. I find the accused guilty of the murder of Mahainmadkhan and sentence him to transportation for life.