1. The five appellants were convicted by the Assistant Sessions Judge of Madura of an offence punishable under Sections 457 and 395, Indian Penal Code and sentenced to five years' rigorous imprisonment and ordered to report all changes of residence to the police for two years after release.
2. The accused were tried by Jury and the verdict was unanimous. There are however one or two directions in the charge which are open to criticism. The most important defect in the charge is that the learned Assistant Sessions Judge has admitted the whole of the confessional statement of the first accused without criticism or question. Only such portions of a confession as lead to the discovery of some fact material to the case can be admitted. What was discovered as a result of the confession of the first accused was a thali kodi wrapped up with a piece of charcoal in a piece of rag. The confession need not however be confined merely to that part of it which deals with the thali kodi. We have to know from the portions admitted that the thali kodi which the first accused disposed of and which was found as a result of his confession was the thali kodi of the complainant. The only way in which the thali kodi recovered by the accused as a result of his confession can be identified with the thali kodi of the complainant is by admitting that portion of the confession which says that the accused entered the house of the complainant and took a thali kodi from somewhere. Excluding all that is not absolutely necessary for the purpose of identification of the thali kodi or which relates to the disposal of the thali kodi, we arrive at the following as the admissible portion of the first accused's confession:
I 'and Guruswami (second accused) .... came to the roof of the Aiyangar's house along the upstairs and I and Guruswami got down .... Four women were lying in that nadai. The woman who was lying to the west among them, was wearing plenty of jewels. I removed the thali kodi by unscrewing the screw .... Perumal (fifth accused) gave a. torn piece of female cloth which he had tied in his waist. I tied the pieces of charcoal in it as also the jewel, placed in a small broken chunam pot of the house of Oomayan, and I buried it underneath a cattle trough of the house of Oomayan.
Two other parts of the charge which can be criticised--but not very seriously--are those found in paragraphs 17 and 22. The learned Assistant Sessions Judge says
The confessional statement of the first accused (Ex. H) may be taken into consideration not only against himself but also against accused 2 to 5. But so far as they are concerned, its evidentiary value is very poor; for the statement is not one made on oath, and the author has not been subjected to cross examination. Such a statement cannot be acted upon as against the others unless corroborated in material particulars so far as it concerns thorn. This means that even if you accept the first accused's concessional statement at its face value as against him, you cannot act on it as against accused 2 to 5 unless you are satisfied that it receives corroboration from material facts proved against them.
This way of putting the case is perhaps not very inaccurate; but it rather puts the cart before the horse. It is not that the confession of one accused must be corroborated by other evidence before it can be accepted against a co-accused; but rather there must be a basis of substantial evidence to which the confessional statement may, be added. If there is substantial evidence against the accused and there remains some lingering doubt, the confession of the accused may be taken into account to set that little doubt at rest. Much the same criticism may be made of paragraph 22 of the charge where the learned Assistant Sessions Judge says,
These recoveries of rags from the houses of the fourth accused and the fifth accused are the only evidence by which the prosecution seeks to corroborate' Ex. H in so far as those accused are concerned. Whether they would amount to material corroboration and whether you would therefore act on. Ex. H as against them, it is for you to decide.
If we accept only that portion of the charge which I have indicated above, the only evidence against the fourth accused is that some pieces of rags were found in his house; and there is no part of the confessional statement that can be taken into account against him. There is the same evidence against the fifth accused. in the portion that I have considered admissible from the first accused's statement there is a mention of the fifth accused; for he gave a piece of sari to the first accused in which were tied pieces of charcoal and the jewel; but there is nothing in that part of the statement which connects the fifth accused with the crime, or even suggests that he knew that the jewel belonged to the complainant or was in any way connected with any offence. The mere discovery of bits of cloth in the houses of the fourth and fifth accused is not sufficient to warrant their conviction. The appeal has therefore to be allowed as far as they are concerned and their convictions set aside entirely.
3. The second and third accused made statements that their share of the spoil was to be found at such and such places, and upon going to the places indicated, articles were found which had been taken from the house of the complainant at the time of the house-breaking. That is sufficient to bring home to them the charge of house-breaking. But if we limit the confession to the portion I have indicated, there is no reason to think that the offence of dacoity was committed; for no witness saw five persons. The case of dacoity rests entirely on the confession of the first accused. Accused 1 to 3 did however commit the offences of housebreaking by night and robbery.
4. Although the sentences are not excessive even for offences of house-breaking and robbery, I think the sentences should be reduced, inasmuch as the learned Assistant Sessions Judge would not presumably have given the appellants quite such heavy sentences had he found them guilty under Sections 457 and 392, Indian Penal Code. The convictions of appellants 1 to 3 will therefore be modified as indicated above and their sentences reduced from five years' rigorous imprisonment to four years' rigorous imprisonment. The order under Section 565, Criminal Procedure Code, will' stand as against the three accused.