Richard Garth, C.J.
1. I am of opinion that under Section 30 the confession of a prisoner which affects himself and some other prisoner charged with the same offence, becomes, when duly proved, admissible in evidence as against both prisoners, and must he so dealt with by the Court. When this confession has been duly proved, it may, by the express language of the section, be taken into consideration against either prisoner; and I do not see in what other way it can he taken into consideration than as evidence. There is no provision in the section by which the confession is to be receivable against one prisoner in one way, and against the other prisoner in another way. But although the section does, in my opinion, make the confession admissible in evidence against either prisoner, the weight which ought to be attached to such evidence, and the question, whether, taken by itself, it is sufficient in point of law to justify a conviction, is a question for the Judge who tries the case.
2. 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.
1. 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 he 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.
2. I consider that the word 'Court' must mean the Court before which the trial of the prisoner is to be held; and in a jury trial must mean the Judge and jury. I cannot think that the word 'Court' is intended to mean 'the Judge and jury' as regards one portion of the confession, and the Judge only, exclusive of the jury, as regards the other portion.
3. 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.
3. In my opinion the confession spoken of in Section 30 of the Evidence Act, to put the intention of the Legislature into a common English legal phrase, 'is evidence. 'I also think it evidence for a jury at a Sessions trial in India; but, I think, at the same time, it is not singly sufficient to support a conviction, that is to say, 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.
4. In considering such questions as these, it appears to me that embarrassment and difficulty will be greatly lessened, if, instead of assuming the English Law of Evidence, and then inquiring what changes the Evidence Act has made in it, we regard, as I think we are bound to do, the Act itself as containing the scheme of the law, the principles, and the application of these principles to the cases of most frequent occurrence.
5. It may be that, as observed by Mr. Norton in his Preface (Law of Evidence, 8th Edition), the framer of the Act over-estimated what had been done, when he claimed to have reproduced within the compass of his 167 sections the whole of Taylor's Work that was applicable to India, and there can be no doubt that cases must arise for which no positive solution can be found in the Act itself, and in such cases we shall probably be justified, and shall always be safe, in adopting English rules, in so far as they follow or are in accord with the general tenor of the Act. But in respect of matters expressly provided for in the Act, we must, so to say, start from the Act, and not deal with it as a mere modification of the Law of Evidence prevailing in England.
6. The Legislature, in my opinion, has not avoided calling the confession of an accused person evidence' against a co-prisoner. It has not so called it, because that is not the phraseology of the Act. What its framers appear to have had chiefly in view, and what they have expressed in the way which they considered most suitable, was--1st what facts are relevant and what irrelevant for the purpose of producing a given belief; and, 2nd, in what manner such facts as are relevant are to be proved.
7. The following definition or explanation of the expression 'proved' is, 'a fact is said to he proved when, after considering the circumstances before it, the Court either believes it to exist, etc'.
8. It seems to follow, therefore, that if a relevant fact is proved and the law expressly authorises its being taken into consideration, that is, considered for a certain purpose, or against persons in a certain situation, the fact in question is 'evidence' for that purpose, or against such persons, although the result has not been expressed in those words by the Legislature; and being 'evidence', it must be used in the same way as everything else that is 'evidence'.
9. What the Legislature intended to denote whenever the word 'evidence' is used in the Act, is carefully explained in the interpretation clause.
10. A confession is an admission, and by Section 21 admissions are relevant. Ordinarily such admissions can only be proved against the person making them, and therefore if the prosecutor at a trial before the Court of Session, proved a confession made by a person then under trial, the Court would be obliged to hold that it was relevant, and could be considered only against the person making it; but the 30th section expressly says that such confession when proved may be considered as against other persons being jointly tried for the same offence who are affected by it. The first point, therefore, seems made out by the terms of the Act itself.
11. In truth, it seems impossible to avoid in such cases producing an effect upon the mind, when a confession is read, extending to every person named in the confession; even the Judge with the beat balanced mind conceivable, if he spoke with absolute sincerity and self-examination, would probably admit that his mind was in some degree affected by the confession of one man criminating another, provided that he believed the confessing prisoner to be in the main veracious.
12. It may be, therefore, that the Legislature did wisely in recognizing and taking under its control the impression thus unavoidable, which might actually do more harm if unrecognized.
13. The confession being thus what is called 'evidence' is, it seems to me, clearly matter for the jury to consider.
14. So far as I can call to mind, the only mention of a jury in the Evidence Act occurs in Section 166, which prescribes how questions may be put by jurors. But certainly neither in that Act, nor in the Code of Criminal Procedure, is there, so far as I am aware, any trace of an intention to separate evidence which may he considered by a jury from that which may be considered by a Court.
15. Nor in my opinion does the definition of the word Court in the Evidence Act exclude the Jury. It runs thus: 'Court' includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence; but it does not, therefore, necessarily exclude a jury, for when a definition is intended to be exclusive, it would seem the form of words (as in the next following definition) is 'means and includes'.
16. Besides, it appears to me that, for the purposes of the definition, the jury are authorized with the Judge to take evidence. They certainly hear it and decide upon its value.
17. As to the language of Section 255, the word 'evidence' there, is not, I think, used with reference to its definition in the Evidence Act, and even if it were, I do not consider that it would create any difficulty.
18. It seems to me impossible to conceive that the Legislature should have intended that confessions admitted to consideration under such circumstances should be used in any other way than by making them (to use the English term again) 'evidence' or that, having made thorn 'evidence', and having contemporaneously provided for the trial of a large class of offences by a jury invested with the powers of determining questions of fact, they should have silently withdrawn such evidence' from the consideration of the jury, permitting it to be considered by the Court which has not the function of deciding on the facts.
19. There remains the question of the effect to be given to such confessions, and this point also appears to me not doubtful.
20. The confession clearly cannot stand higher as to probative force than the testimony of an accomplice, who is declared to be a competent witness against an accused person (Section 133), and the law does not say of the confession, as it says of such testimony, that 'a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice'. That being so, I consider that we are free to lay down the rule, which would undoubtedly prevail in England if it were possible that such matter could be admitted, and to hold that a conviction based upon such confession alone would be legal; and not only so, but that such confession will not illegally suffice when corroborated by other facts of which evidence is offered, unless those facts are such that, if believed to exist, they would of themselves suffice to support a conviction.
21. I need hardly advert to the fact that the Legislature, while declaring that a conviction is not illegal because it depends on the uncorroborated testimony of an accomplice, at the same time enumerates examples of facts which the Court may presumes, mentioning prominently this one, that an accomplice is unworthy of credit unless he is corroborated in material particulars; and the facts afterwards instanced as tit to be considered for the purpose of limiting the application of this maxim, have references, I conceive, only to the case of accomplice witnesses as the illustration (b) itself has also.
22. I would answer the questions put as above stated.
23. Upon a question of the construction of an Act of Legislature it is very desirable that there should be no dissentient opinion. My learned brethren having come to the conclusion that a conviction by a jury, upon the uncorroborated confession of an accomplice, would, except as against the accused person who makes the statement, be illegal, I am content to abandon my own doubts, and to concur in their decision that the confession of an accomplice is, by the law of India, evidence against his fellow-prisoner.
24. Courts of Justice, in dealing with questions of fact, have to determine whether the alleged facts are proved, disproved, or not proved. They can only do this by considering the matters before them bearing upon the existence or non-existence of the alleged facts, and whatever goes to show the existence or non-existence of a fact is evidence in respect of that fact.
25. The Indian Evidence Act, in the 30th section, speaks of certain confessions by a prisoner as proper to be taken into consideration, not only as against the person by whom they are made, but also as against any other person who is being tried jointly for the same offence. Such confessions may legally go to make up the proof of the offence as against the latter, and, if so, it is impossible to describe them as anything but evidence. In the case of a confession proved by oral testimony, or previously reduced to writing by a Magistrate, and proved by the production of the record, the definition of evidence in Section 3 of the Evidence Act will clearly include such proof. There can be no reason for holding that a confession made during a trial in the Court of Session in open Court is to be treated as something different; therefore, I hold that all confessions which can legally be used under Section 30 are evidence.
26. In the case of trial by jury, it is specially the province) of the jury to determine whether the evidence before it, adduced to prove the charges laid against the accused, is trustworthy. It is the duty of the Judges to exclude irrelevant evidence, but as regards the evidence which is decided to be relevant, it is the duty of the jury to determine on its credibility, and generally its sufficiency.
27. If a case is left to go to a jury at all, the whole of the admissible evidence must go to the jury, and therefore the word 'Court' in Section 30 must include the jurors who are to determine on the evidence.
28. But under Section 251, Criminal Procedure Code, a Sessions Judge is empowered to stop a case without referring the evidence to the jury when he thinks there are no grounds for proceeding, and to direct, the jury to return a verdict of acquittal.
29. To a certain extent, therefore, the Judge is to determine on the sufficiency of the evidence, and he is empowered to direct a jury to return a verdict of acquittal when there is no evidence to go to it, except the uncorroborated statement of a confessing fellow-prisoner under trial at the same time.
30. I think that he is not only empowered, hut bound, to exercise this power. The case does not come within the words of Section 133, taken strictly, and that section itself must be taken with illustration (b), Section 114, which shows that it is reasonable to presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The material particulars, as has frequently been pointed out, are those which go to connect the accused with the offence, and not merely those which go to corroborate the general story of the crime. There is not, in my opinion, anything in the law inconsistent with the view that a Sessions Judge is bound to stop a trial when there is nothing against an accused person but an uncorroborated statement of a fallow-prisoner being jointly tried for the same offence, and that a failure to do this amounts to an error in law, which will vitiate a conviction by a jury arrived at under such circumstances.
31. On the first and second points, I agree with my learned brethren. I took the same view when referring the case to the Full Bench. On the third point, I entirely concur in the judgment of Mr. Justice Jackson.