Koshi, C.J.
1. Pyli Yaccob, accused 2 in Sessions Case No. 1 of 1952 on the file of the Parur Sessions Court, has preferred this appeal against the conviction and sentence passed against him by that Court. One Raman Padmanabhan, accused 1 and the appellant were arraigned before the learned Sessions Judge with commission of offences punishable under Sections 302, 394, 397 and 457, I.P.C. The charge for murder (302) against the appellant was one read with Section 34, I.P.C. the principal offender with respect thereof being accused 1. With reference to the offences under Sections 394 and 457 both accused were alleged to be principal offenders. Section 397 only prescribes the punishment for committing robbery or dacoity with attempt to cause death or grievous hurt. The learned Judge acquitted the appellant of the charge for murder read with Section 34 but convicted him of the offences under Sections 394 and 457. A sentence of seven years' rigorous imprisonment has been awarded with respect to the former offence and three years' rigorous imprisonment for the latter. The sentences are to run one after the other. The appeal is from the judgment and order so passed.
2. Accused 1 was found to be guilty of all the offences with which he stood charged. Sentences for like periods as those passed against the appellant for the offences under Sections 394 and 457 have been passed against him as well. With respect to murder he is to undergo rigorous imprisonment for life but all the three sentences against him are to run concurrently. He has preferred an appeal from the Central Jail where he is undergoing his sentence and that appeal was registered here as Criminal Appeal No. 70. That was heard along with this and we have just now dismissed it by a separate judgment.
3. The case against the two accused persons was that during the small hours of the night between 27.9.1950 and 28.9.1950 they broke open into one 'Kadaliparambu Matom' in Cheranalloor Pakuthy, Kovaapadi Kara, near Perumbavoor and that besides committing burglary they also caused the death of Parvathi Ammal, the elderly lady of the house and caused grievous hurt with dangerous weapons to P.W. 2, her son and P.W. 3, daughter. That a daring robbery took place during the night mentioned at the 'Kadaliparambu Matom' and that during that occurrence Parvathi Ammal was killed and that P.W. 2 and 3 sustained very serious injuries as a result of which they had to remain as in-patients at the Ernakulam General Hospital unable to follow their ordinary avocations for more than twenty days admits of no doubt on the evidence and circumstances of the case. The point for determination in this appeal is whether the appellant is proved to have any part or lot in the occurrence. We have mentioned that the charge of murder against him read with Section 34 has been found against by the learned Sessions Judge. What we are therefore called upon to decide is whether his conviction under Sections 394 and 457, I.P.C. could be sustained.
4. Regard being had to the nature of the evidence against the appellant we do not think it necessary to enter into a detailed discussion of the facts and circumstances of the case for disposing of this appeal. The materials on which the learned Judge chose to find the appellant guilty of the offences for which he has been convicted are: (i) the confession which the co-accused made before the Division First Class Magistrate, Alwaye, soon after he was apprehended (Ex. AE), (ii) the evidence that the appellant was in the company of accused 1 before the crime as testified to by P.Ws. 4 to 6, and 8 and after the crime as testified to by P.Ws. 10, 11 and 34, and (iii) the discovery of some of the stolen articles pursuant to information the Police received from the appellant.
The third item of evidence if found to be free from the infirmities pointed out by the learned Counsel for the appellant may in the circumstances of the case justify a conviction under Section 411, I.P.C. for dishonestly receiving stolen property knowing it to be stolen, but whether the cumulative effect of the materials falling under the three heads above would warrant the inference that the appellant had committed robbery or caused hurt or house-breaking by night is a matter which calls for close scrutiny.
5. The co-accused had retracted at the trial from the confession he made before the Division First Class Magistrate, Alwaye, though before the committing Magistrate he had not to say anything against it. The learned Counsel for the appellant severely criticised the use the learned Sessions Judge made of the co-accused's confession. The learned Judge would seem to have approached the matter as if the said confession is only subject to such infirmities as law attaches to the evidence of an approver. The provision in the Evidence Act applicable to the former is entirely different from that which applies to an approver's evidence. While Section 133 and Section 144, Illustration (b) contain the relevant provision's regarding the evidence of an approver Section 30 has to be looked for as to the use to which a co-accused's confession can be put to. Section 30, Evidence Act enacts:
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.
There is no gainsaying that the learned Judge made use of the co-accused's confession in a manner not sanctioned by the section and the criticism levelled against the course adopted is therefore thoroughly justified. In considering the question whether the accused persons had entered into Kadaliparambu Matom after midnight on 27.9.1950 by removing the bars of the window of the western wall of the house, the learned Judge states in para. 22 of his judgment thus:
Coming to accused 2, there is only the confession of accused 1 to prove the point.... Therefore we are loft with the solitary item of evidence viz., the confession of accused 1. Evidentiary value of the confession of a co-accused is not much. It reduces considerably when the maker retracts it. Still where such confession stands unrebutted and there is nothing to show that the accused had any reason for naming another falsely and his story fits in exactly with the facts known or proved and is corroborated sufficiently by material evidence against the co-accused, the confession is a strong piece of evidence against the co-accused.
This by the way, is as the learned Judge himself states, relying upon a passage in an Oudh decision - 'Hazari v. Emperor AIR 1930 Oudh 353 (A) where the learned Judges fell into the error of making use of the confessions made by some accused persons implicating a fellow accused to corroborate the testimony of an accomplice. The lower court then goes on to say in the same paragraph as follows:
We have therefore to see whether the statement against accused 2 is corroborated sufficiently by material evidence against him. Accused 1 in his statement before this Court mentioned that there was enmity between himself and accused 2 ever since 1124. If it is a fact he is not likely to mention it now. The mention indicates a desire to save accused 2. That shows that they are friendly. Further P.W. 27, the father of accused 1, stated that himself and accused 2 were co-accused in 1126. So in 1126 there was no enmity between the families of the accused.
After saying so much the learned Judge proceeded to discuss the evidence falling under heads (ii) and (iii) above and concluded the discussion thus:
These things (the stolen articles recovered pursuant to information the appellant gave to the police) belonged to the members of Kadaliparambu Matom. How did accused 2 get them? The confession statement shows that those things were removed from the Matom by the two accused jointly by committing house breaking by night. That confession is proved to be true and is corroborated in material particulars. Therefore I accept it even as against accused 2. I find that accused 2 also entered into Kadaliparambu Matom after midnight on 27.9.1950, by removing the bars of the window on the western wall of the house (para. 23).
Except for what the co-accused had said in his confessional statement there is nothing on the record of the case to show that the appellant had participated in the commission of the crime forming the subject of the trial or was event present at the scene of occurrence. If the co-accused's confession cannot take the place of primary evidence as to the appellant's participation or presence even, it is difficult to understand how from evidence falling under heads (ii) & (iii) a court could come to the conclusion that the applt. had actively taken part in the commission of the crime or he was present when the crime was committed. Perhaps had there been evidence at least as regards presence with the aid of evidence falling under heads (ii) and (iii) a Court could at least have resorted to the well-known adage that in crimes as in other things they also serve who only stand and wait. A co-accused's confession can only lend assurance to other evidence against a co-accused or^ be thrown into the scale as an additional reason for believing other evidence. The learned Judge, however, omitted to bear this in mind and in-stead of using it to corroborate the other evidence, was seeking to find corroboration for the co-accused's confession in the other evidence on record.
6. In - Bhuboni Sahu v. The King AIR 1949 PC 257 (B) Sir John Beaumont pronouncing the judgment of the Judicial Committee has dealt at length with the use a co-accused's confession can be put to against a person tried along with him. The judgment also points out that it is a rule of prudence universally followed as to amount almost to a rule of law that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The Privy Council was in that case considering whether it would be safe to make use of the confession of a co-accused to corroborate an accomplice's testimony. No such question arises here. What is relevant for our purpose is what that decision states about the provision in Section 30 and that is found in column 2 of page 260 of the report. Sir John Beaumont said:
Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however provides that the Court may take, the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence.
The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction is correct.
A more recent authoritative pronouncement on the question is to be found in the decision of the Supreme Court in - Kashmira Singh v. State of Madhya Pradesh : 1952CriLJ839 . After referring to - Bhuboni Sahu's case (B) Bose J. who gave the decision said:.The question is in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except in so far as he is corroborated?
In our opinion, the matter was out succinctly by Sir Lawrence Jenkins in - Emperor v. Lalit Mohan 38 Cal 559 at p. 588 (D) where he said that such a confession can only be used to 'lend assurance to other evidence against a co-accused' or to put it in another way as Reilly J. did in - Periyaswami Mooppan v. Emperor AIR 1931 Mad 177 at p. 178 (E).
The provision goes no further than this. Where there is evidence against the co-accused sufficient, if believed, to support his conviction then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.
Translating these observations into concrete terms they come to this. The proper way to, approach a case of this kind is, first to mar-shall the evidence against the accused excluding the confession altogether from consideration and see whether 'if it is believed', a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, 'if believed', it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would lot be prepared to accept.
The learned Judge then devotes his attention to the question how far a co-accused's confession can be utilised to corroborate approver's evidence but as mentioned curlier it is unnecessary for us to consider that point here as it does not arise in this case.
7. We may also refer to a still later case where the implications of Section 30 are considered. In - Gunadhar Das v. State : AIR1952Cal618 Sir Trevor Harries C.J. quoted the passage we have extracted above from - Bhuboni Sahu's case (B) and stated thus in. Para. 18 of his judgment:
It seems clear that the view of their Lordships was that a confession of a co-accused can be used to support other evidence. In other words, it can be used to corroborate other evidence. It might assist the court in coming to the conclusion that the other evidence is true and therefore that an accused is guilty. It is one thing to say that a confession of a co-accused can be used to corroborate other evidence, but it is entirely a different thing to say that that other evidence can be used to corroborate the confession of the accused. The learned Assistant Sessions Judge directed the jury that the other evidence could be used to corroborate the confession, but the correct direction appears to me to be that the confession may be used to corroborate the other evidence. In short, the conviction must be based on the other evidence. The confession can only be used to help to satisfy a Court that the other evidence is true. What the learned Judge has suggested is that if the other evidence suggests to the Court that the confession of the co-accused is true, then a conviction can be based on the confession. That appears to the to be an incorrect statement of the law.
The very same error the learned Assistant Sessions Judge in that case made has been made in this case as well. We cannot make use of the co-accused's unsworn statement, given behind the back of the appellant and which has not been tested by cross-examination, to fill up the gap in the prosecution evidence that the accused had participated in the commission of the crimes complained of here. As mentioned earlier had there been some legal evidence of the appellant's presence evidence falling under heads (ii) and (iii) would perhaps have given a different complexion to the case against the appellant. The question whether those pieces of evidence could afford circumstantial corroboration of the appellant's presence at the scene of the crime or participation in it does not arise for consideration here when there is no evidence worth the name relating thereto.
8. The learned Judge has referred at length to the evidence that the appellant was seen in the company of accused 1 both before and after the commission of the crime. We have already indicated who those witnesses are, but in view of what we have stated in the preceding paragraph it is unnecessary to consider whether all their evidence is credible. The evidence of these witnesses however leaves a big gap. All the visits the two accused persons paid to wayside 'toddy' or 'beedy' shops or their activities to enlist assistance or borrow a torch do not take us beyond 10 P.M. That is before the occurrence. The earliest to see them after the crime were P.Ws. 10 and 11 and that was at 4 P.M. on 28.9.1950. P.W. 34 sees them much later. Except for what we find in the confession accused 1 gave we have no knowledge at all regarding the whereabouts of the appellant between 10 P.M. and 4 A.M. of the next day. The prosecution case is that the occurrence was after mid-night. The evidence under head (ii) is of little avail to the prosecution to prove the crimes levelled against the appellant.
9. Does this all mean that the appeal should be allowed and the appellant acquitted completely; certainly not if the evidence under head (iii) clearly establishes that the articles recovered from his possession pursuant to the information he gave to the police included articles stolen that night from Kadaliparambu Matom. (Their Lordships held on examination of the evidence that the ingredients of an offence under Section 411, I.P.C. were established against the appellant and proceeded):
10-12. So far our discussion relating to the recovery of the incriminating articles from the possession of the appellant has proceeded without reference to the irregularities pointed out by appellant's counsel regarding the search under which the recovery was made. Learned Counsel strenuously contended that the search was illegal on account of non-compliance with the provisions of Section 165, Cr.P.C. It was pointed that there was no warrant issued by any Magistrate and the necessary formalities laid down by Sub-section (1) of Section 165 to entitle a police officer to conduct a search on his own responsibility have not been observed. The complaint was that no report was made to the Magistrate setting out the grounds of the police officer's belief to conduct a search without the Magistrate's warrant and it was also stated that there was nothing to show that P.W. 36 was an officer competent to conduct a search.
We are afraid there is no foundation for these criticisms on the materials on record. P.W. 36 has said in his evidence that he was then the person in charge of the Alathoor Police station and that the Sub-Inspector and other senior officers were away on other duty. He is a clerk attached to the Station and there is nothing to show that he is not an 'Officer in charge of the police station' as defined in Section 4(1)(p) of the Code. The point was not mooted at all in the lower Court. Likewise it was not asked whether before he set out to conduct the search of the house of the appellant's brother the witness had made a report to the Magistrate as contemplated by Section 165(1). From the mere fact that search list and the requisition P.W. 29 made at the Alathoor Station to conduct the search have alone been produced in the case we cannot presume that there has been a non-compliance with the provisions of law in the aspect pointed out.
13. Besides we have not been told what result follows in this case assuming that the mandatory provisions of the relevant sections of the Code relating to searches have not been complied with. No doubt learned Counsel for the appellant invited our attention to certain decisions which hold that an officer conducting a search in violation of the provisions of law can be resisted with impunity and that obstruction to such searches will not constitute any offence. As illustrative of the cases referred to, mention may be made of the decisions in - Ram Parves Ahir v. Emperor AIR 1944 Pat 228 (G) and - Emperor v. Mohammad Shah AIR 1946 Lah 456 (H). Decisions were also cited to show that a person conducting a search in violation of the mandatory provisions of the Code will be holding himself up liable for damages in an action for trespass. The two lines of cases referred to are however of no avail to the appellant.
14. The only question that could legitimately arise here is whether assuming the search to have been illegal whether that would vitiate the trial or prevent a conviction being made. Decided eases are clear on the point that there is no such effect. In the words of Sir Lawrence Jenkins C.J., what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which the provisions of the Criminal Procedure Code were disregarded. See - Barindra Kumar Ghose v. Emperor 87 Cal 467 at p. 500 (I). There it was contended that the evidence discovered by the searches held in the case was not 'Admissible as the concerned searches were held in disregard of the provisions of the Code. The learned Chief Justice (Carnduff J. concurring) while disagreeing with the contention that they searches were illegal went on to say that even on the assumption they were illegal evidence was not inadmissible.
To the same effect is the answer a Full Bench of the Madras High Court gave in - Solai Naik y. Emperor 34 Mad 349 (J). In that case a police officer conducted a search at a place beyond his station limits. The question raised was whether that search list could be committed in evidence or other evidence of the search could be let in. In - Emperor v. Allahdad Khan 35 All 358 (K) an Additional Sessions Judge acquitted a person found to be in illicit possession of excisable articles on the ground that the search held was illegal. The Division Bench which heard the appeal by the Crown set aside the order of acquittal stating Shat whether the search was legal or not there was evidence in the case that the accused had kept in his house a certain quantity of cocaine, which is an excisable article, for which the accused had no license and that the order of acquittal was wrong. The accused was convicted. This case has since been followed by the Allahabad High Court in several cases. See - Aliahmad Khan v. Emperor AIR 1924 All 214 (2) (L); - Emperor v. Kutroo AIR 1925 All 434 (M); - Abdul Hafiz v. Emperor AIR 1926 All 188 (N); - Rure Mal v. Emperor AIR 1929 All 937 (O) and - 'Emperor v. Bachcha', AIR 1934 All 873 (P).
The Calcutta High Court is of the same view that an illegality in connection with a search cannot render the trial illegal or the conviction bad. Bonomali v. Emperor AIR 1940 Cal 85 (Q). It was said there that notwithstanding the failure to comply with the provisions relating to a search, when once the evidence has been believed it is obviously no defence to say that the evidence was obtained in an irregular manner and that there was nothing in the law which, makes such evidence inadmissible. The Bombay High Court recognised this rule in - Dinkar Nhanu v. Emperor AIR 1930 Bom 169 (R). The Rangoon High Court almost consistently adopted the same view See - Aung Kim Sein v. The King AIR 1941 Rang 333 (S). Several decisions of the High Courts in India are referred to in this case.
15. In this view of the law, assuming that the criticisms levelled against the search held to recover M.Os. 23 to 27 are well-founded it cannot be of any avail to the appellant once it is found that the evidence of the recovery is reliable. The lower Court believed that evidence and we have said earlier that we see no reason to take a different view.
16. The result is the appellant is found to be in possession of stolen property knowing them to be stolen. He is either the thief or has received them knowing them to be stolen. Illustration (a) to Section 114, Evidence Act, The only explanation the appellant offered with respect to the recovery is that he had not kept the box from which M.Os. 23 to 27 were recovered in his brother's house and that he was on inimical terms with his brother and accused 1 P.W. 20, his sister-in-law has given the lie direct to his denial of having placed the box containing these articles in her house. His conduct shows that he was on friendly terms with his brother nor has the version that he was on bad terms with the co-accused any basis. The lower Court has considered this aspect at some length.
17. The question naturally arises whether without a charge under Section 411, I.P.C. the appellant can be convicted of that offence by the appellate Court. Though there is no charge, on the facts found by us he could rightly be convicted under that section. See Section 237, Cr.P.C. - illustration and also the principle behind the course adopted in - Begu v. Emperor AIR 1925 PC 130 (T) and in - Kashmira Singh v. State of Madhya Pradesh (C).
18. While we therefore hold that there is no evidence to sustain the conviction under Section 394 or Section 457 we hold the appellant guilty under Section 411 and sentence him to undergo the maximum punishment prescribed for that offence viz., three years' rigorous imprisonment.