1. This conviction cannot stand. As an appellate court one would be bound to overrule it without hesitation. There is certainly a strong element of doubt. The fact that this is a revision application does make a difference and compels mo to express an opinion about the procedure as well as about the actual findings.
2. The case is so exceptional that nothing like it will probably occur, at any rate, for some time, and I am not doing more than expressing an opinion, although I have had the advantage of arguments from two of the leading members of the bar and have been referred to one or two cases. The case against Mahadeo was built up upon two statements of one of the original thieves, a man named Jhit, who has already been sentenced to a well-merited thrashing which I hope he has received. These two statements must be clearly differentiated. The theft took place on the 14th of August. On the 16th, Jhit, who was only a carrier, confessed and made a formal confession under Section 164. There is not a word against the present applicant Mahadeo in that statement. Jhit was not made an approver, but was put upon his trial together with the receiver, and evidence was called, which, if you accept a subsequent story told by Jhit, contained certain statements tending to support parts of Jhit's statement though also tending to support Mahadeo's defence. But the evidence of the witnesses at the trial before the Magistrate contained not one word tending for show that Mahadeo had bought or taken possession of these goods knowing them to be stolen. That being so, the case for the prosecution closed without a scrap of evidence against Mahadeo. Nobody seems to have noticed this singular fact, but the Magistrate's duty undoubtedly was to dismiss the case against Mahadeo at-the close of the case for the prosecution. The trial proceeded and the defence was opened and the statements of the accused were taken under Section 364, and then, for the first time, Jhit made a statement implicating Mahadeo, as a matter of fact treating Mahadeo as the principal person concerned in purchasing the goods. This statement has all along been called a confession and has been treated as a confession admissible against the co-accused Mahadeo under Section 30 of the Evidence Act. In other words, the legal proposition may be simply stated in these words, that where there is no evidence at ail against a receiver, at the close of the case for the prosecution a statement made by the thief in his own defence may be taken into account even against the receiver under Section 30. To my mind that is an untenable proposition, it is certainly contrary to the fundamental principles upon which criminal law is administered in England and, I believe, also in India, where the procedure, though different in detail, is largely based upon English ideas. In the first place an accused is entitled to know what the evidence against him is before he is called upon for a defence at all, and She closing of the case, for the prosecution is no mere form but, with certain exceptions, closes the door to any further evidence against the accused. In the second place, the prosecutor cannot re-open his case and make additions to it except such voluntary additions as the accused may make himself. Now, according to the established practice in England and the established practice consistent with the first principles of criminal law, evidence cannot be received against an accused person which he has no power to submit to cross-examination. Secondly, an accused person cannot himself give evidence. Nobody could pretend that the administration of justice would be assisted if upon one accused making a confession implicating his colleague in the dock, his colleague were thereupon allowed to cross-examine him, and there is nothing in the Procedure Code suggesting such a proceeding. Every Judge in such a case in England, where statements are made from the dock after the case for the prosecution is closed, warns the jury that they must not take into account anything which one accused in the dock may say about the other. To use, therefore, a statement made in the dock by one accused against the other in a joint trial, offends against at least two of the fundamental principles of the criminal law. The Legislature in India saw fit to create an exception which is contained in Section 30 of the Evidence Act. In my opinion that mast be construed with reference to the fundamental principles to which it creates an exception. If the section is carefully read-, I think nobody, bearing in mind the fundamental principles which I have just mentioned, ought to have any difficulty in coming to the conclusion that what is-contemplated is formal proof by the prosecution of a confession previously made. The only objection I can see to such an interpretation is that I am inserting in the section the words as part of the case for the prosecution.' But such words would be tautologous, and a draftsman, in my opinion, would consider it superfluous to insert them, because the only thing that ac accused person has to meet in a criminal trial is the case for the prosecution and such additions thereto as he may have voluntarily added by his own statement and those of the witnesses whom he calls in his defence. My view of the meaning of the language may be stated in this way. A prudent prosecutor, when the date is fixed for trial, asks himself: 'What have we got to prove?' The duty of the prosecution is to prove all relevant facts essential to establish the guilt of the accused person. But matters of proof must be facts which are in existence at the time when the charge is made, and the expression 'proving, a confession' is, to my mind, inapplicable to the procedure where the Judge asks questions and an accused person gives explanations under a special section provided for that purpose. The two decisions which have been referred to by Mr. Dillon, which seem to me to strengthen my view, as a matter of general principle, but which have really proceeded on another ground, are the case of Queen-Empress v. Pirbhu (1895) I.L.R. 17 All. 524 and the case of Queen-Empress v. Paltua (1900) I.L.R. 23 All. 53. I am aware that in the case of Queen-Empress v. Chinna Pavuchi (1899) I.L.R. 23 Mad. 151 a different view has been taken, but with due respect to the learned Judges who dealt with the point there, they do not seem to me to have noticed the difficulty which I feel. At any rate it was not argued, possibly nobody thought it worth taking. They proceeded on the question whether, in the case of a man who has pleaded guilty, his trial is over at a particular moment. Allahabad and Madras differ upon that point. It does not seem to me to turn on the question at what period the trial, is over. It seems to me to depend on what was meant by the language in the section as to 'proving' a confession made by one of such persons. It seems to me that when you prove a confession made by a person, you tender evidence at the trial that on some previous occasion he did, in fact, make a confession, and to my mind, that is the only thing which was ever contemplated by the section. Therefore, in my judgment, although in one sense of the word it is not necessary for me to come to a conclusion, to proceed in this way was irregular, and there was no evidence upon which Mahadeo could be convicted at all. But I think that I ought not to pass it by as though it was a proceeding which met with my approval, because it meets with my very strong disapproval.
3. On the assumption that the evidence was admissible, there is some sort of a case against Mahadeo. It is very thin. It is open to many criticisms. For example, the story that Jhit told on the second occasion, during his trial, is not only inconsistent with but utterly destructive of the first story that he told, and except that he got seven annas as wages, he does not pretend to allege what price Mahadeo gave for the goods, whom he paid, or what became of the money. It is difficult, therefore, to deal with a story which is merely a thing of shreds and patches, and the two courts between them appear to have filled up what was wanting in Jhit's second statement, by assuming that the statements of Mahadeo were untrue. Even if the Magistrate's decision were right, he found that Mahadeo had dishonestly bought the goods from Babu Lal. It did not occur to the Sessions Judge that when he acquitted Babu Lal, this knocked the bottom out of the case against Mahadeo as the Magistrate had found it. Sitting as an appellate court I should have differed from the unfavourable inference which the Judge has drawn from the alleged partnership of Musammat Janki and Mahadeo. He may be right, but before one convicts a possibly respectable man, one ought to be quite sure, and if it is possible and consistent with all the evidence that Janki, being not too well off and already being assisted with either advances or help from Mahadeo, approached Mahadeo, seeing her way to making something out of the stolen property, and used him as a tool in order to enable her to complete the fraud, and if he trusted her, the fact that she came with the goods would, of course, naturally encourage him and increase his sense of security. I think an unfair method of dealing with the case has been adopted in both courts in treating the case against Janki and Mahadeo as though they necessarily stood or fell together. They ought to have been examined quite independently. It is true, of course, that Mahadeo's admission that the goods were brought to his premises and were handled for the purpose of selling, and even unpacked and re-packed on his premises, is corroboration of Jhit. But it is only corroboration of a part of Jhit's story. It is no corroboration of that part of Jhit's story which, if he ever said it, consisted of the statement that Mahadeo knew that the goods were stolen, or purchased property which he suspected to be stolen. Judges should rise some discrimination when they are dealing with ambiguous evidence which may have an honest or a dishonest interpretation. In such a case there is no corroboration unless the conduct of the accused, or the admission of the accused, goes to the full length of something inconsistent with honest dealing. The mere fact of the presence of some raisins and some of the packing material in which the goods were originally packed for transit by the consignor, is no corroboration of Mahadeo's guilty knowledge. It is corroboration of the statement that the goods were unpacked at his premises. But that is Mahadeo's defence and his reason for not having entered into this transaction. Another illustration is that whereas nobody said that he had bought the goods at all, he himself said, that he had agreed to buy them and eventually decided not to and sent them away. Under these circumstances the remark of the learned Judge in his judgment about the absence of an entry of the transaction in Mahadeo's book, when Mahadeo himself denied that any such transaction took place, can only be due to a sort of instinctive feeling on the part of the Judge that Mahadeo's guilt was made out and a desire to support that view by some sort of logical reasoning. As a matter of fact, books in such a case are utterly unimportant because if no transaction took place, there would be no evidence. On the other hand, if the transaction was a dishonest one for a contemptuous price, the entry would probably be cooked in order to conceal the disproportionate price. There is another matter which both courts failed to investigate, namely, whether, on any showing, Mahadeo dealt in these goods at a price which showed he must have known he was running a considerable risk. If anything, the evidence points rather in the other direction, but as no transaction is proved to have taken place, it would be hard to come to a definite conclusion even on that point. In my view the conviction is bad and must be set aside. I, therefore, allow the application in revision and acquit the accused. The bail bond is discharged.
4. I may say that if anybody connected with this case comes before me in consequence of anything I have said today, I shall probably hold that he is too late to apply for revision.