John Beaumont, J. - (1.)THIS is an appeal by special leave from the judgment and order of the High Court of Judicature at Patna dated September 19, 1947, dismissing an appeal against the judgment and order of the Court of the Sessions Judge of Ganjam-Puri dated July 28, 1947, whereby the appellant was convicted of the offence of murder under Section 302/34 of the Indian Penal Code and sentenced to death. At the conclusion of the arguments their Lordships announced that they would humbly advise His Majesty that the appeal be allowed and would state their reasons later. THIS they now proceed to do.
(2.)IT is not in dispute that on October II, 1946, one Kalia Behara was brutally murdered at a place between Berhampur, where he lived and carried on business as a jutka driver, and Golantra, to which he was driving with passengers in his Jutka. IT is unnecessary to refer to the details of the murder; though it may be noted that the motive atrributed to the appellant was that he is a relation of accused Nos. 1 and 2 who are said to have been on terms of enmity with the deceased, but both of whom were acquitted of the murder. Eight persons were charged with the offence and tried by the Sessions Judge of (Jajnam-Puri. The learned Judge convicted six of the accused including the appellant, who was accused No. 7, and one Trinath, who was accused No.5. The six convicted persons appealed to the High Court at Patna. Two of the appeals were allowed, but the other appeals, including those of the appellant and Trinath, were dismissed. The only question which arises on this appeal is whether there was evidence upon which the appellant could be properly convicted.
The evidence against the appellant consisted of (a) the evidence of Kholli Behera who had taken part, in the murder and had become an approver; (b) the confession of Trinath recorded under Section 164 of the Code of Criminal Procedure which implicated both himself and the appellant in the murder, but which, was retracted in the Sessions Court; and (c) the recovery of a loin cloth identified as the one which the deceased was wearing when he was assaulted, and a khanti badi, or instrument for cutting grass, in circumstances alleged to implicate the appellant.

The law in India relating to the evidence of accomplices stands thus :-Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the High Court of Calcutta in R. v. Elahee Buksh (1866) 5 W. R. (Cr) 80 that the law relating to accomplice evidence was the same in India as in England. Then came the Indian Evidence Act which by Section 133 enacts that An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Indian Evidence Act, however, provides that The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two enactments together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of art accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the Same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase "corroborated in material particulars" in illustration (b) to Section 114.

(3.)THE approver in the present case was a man aged about twenty. He was arrested on October 12, 1946, the day after the offence, and on October 14, was sent by the police to a Magistrate, who was called as a witness at the trial, and who on October. 15 recorded a statement of the approver under Section 164 of the Code of Criminal Procedure. In this statement the approver described the murder, and alleged in effect that he and Trinath had been engaged by the appellant to assist in the murder, which they did; that in the struggle the cloth of the murdered man became untied and the appellant threw it over a bush. On February 17, 1947, the approver, having been tendered a pardon, gave evidence before the committing Magistrate. His evidence followed the general lines of his statement made under Section 164 but added some further details. In particular he said that the appellant gave him a khantibadi which he, the approver, subsequently gave to Trinath who handed it over at the appellant's house. THE approver also alleged that the appellant gave to each of them, himself and Trinath, a sum of Rs. 25, presumably as remuneration for the part they had taken in the murder. On July 8, 1947, the approver gave evidence in the Sessions Court. His evidence was that he knew nothing about the murder, and he denied all the facts to which he had deposed before the committing Magistrate. He affirmed that his evidence before the committing Magistrate was the result of beating and tutoring by the police, and he denied that he had made any statement at all before a Magistrate under Section 164 of the Code of Criminal Procedure. THEreupon the Sessions Judge brought the evidence of the approver given before the committing Magistrate upon record under Section 288 of the Code of Criminal Procedure, the effect being to make the evidence given before the committing Magistrate evidence in the ease for all purposes. Both the learned Sessions Judge, and the learned Judges of the High Court in. appeal, preferred the evidence given by the approver before the committing Magistrate to his evidence given in the Sessions Court. Some discussion took place in the High Court as to whether under Section 157 of the Indian Evidence Act the Court could use the statement made by the approver under Section 164 of the Code of Criminal Procedure. Section 157 is in these terms: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when tile fuel took place, or before any authority legally competent to investigate the fact, may be proved.
A statement made under Section 164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement. The statement made by the approver under Section KM plainly docs not amount to the corroboration in material particulars which the Courts require in relation to the evidence of an accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose, its taint by repetition. Hut in considering whether the evidence of the approver given before the committing Magistrate was to be preferred to that which he gave in the Sessions Court, the Court was entitled to have regard to the fact that very soon after the occurrence he had made a statement in the same sense as the evidence which he gave before the committing Magistrate.