Moore, J -
(1.) Six men were charged before the Sessions Judge with the murder of one Nabi Sahib. He has convicted Nos. 1, 2, 3 and 4 and acquitted Nos. 5 and 6. No. 1 has been sentenced to death and Nos. 2, 3 and 4 to transportation for life, They appeal.
(2.) The case against the first prisoner is very strong. The third prosecution witness, an approver, has described in detail the manner in which Nabi Sahib was killed and has shown that this prisoner took a prominent part in the attack on him. His evidence is corroborated in certain important particulars by the fourth witness, a boy of about 13 years of age, who is the nephew of the first prisoner. This boy was present when the attack commenced, but ran away before Nabi Sahib received very serious injuries. The fifth and seventh witnesses also saw the first prisoner with others strike Nabi Sahib, but they also left the place before the man was killed. Nabi Sahib was killed on the 12 May. His body was discovered on the 16 and on the 19 the first prisoner made a confessional statement which has been recorded under Section 164 of the Criminal P. C. by the Adoni Second-class Magistrate. He there says that the fifth prisoner hit Nabi Sahib with the handle of a hatchet and on that the second, third and fourth prisoners and the approver beat him. The first prisoner also hit him with the handle of a hatchet. This happened at the spot marked D on the plan. They then carried him, the first prisoner assisting, to a spot where there is what is called in the evidence a jammi tree (E in the plan). After that he was carried to the margosa tree (F in the plan) where he was killed. This prisoner did not in this statement admit that he assisted in carrying Nabi Sahib from E to F, or that he was one of those that actually struck him at F. On the 1 June the first prisoner in a further statement made before the Magistrate admitted that he had struck the deceased with the handle of an axe and that he had assisted in carrying him to E and thence on to F. He says "we tied up his hands and legs, took him to the hollow place near Nallagutta (Nallagutta is the place where the body was found. It is close to F) and made him lie down there." When on the 27 June the charge was read to him he adhered to what he had previously said and it was not till he was before the Sessions Judge that he repudiated his confessional statements. I believe the evidence of the approver which has been corroborated in certain most important particulars by the fourth, fifth and seventh witnesses. There are no grounds for supposing that the confessional statements made by the first prisoner were not given voluntarily I have no hesitation in upholding the conviction of this man but I consider that the sentence passed on him should be altered to transportation for life as I am satisfied, from a consideration of the evidence, that the first prisoner was not one of the prime movers in the attack on Nabi Sahib and that, if it had not been for the intervention of other persons, whose case is not now before this Court, Nabi Sahib might perhaps have been beaten, but would certainly not have been murdered. All the evidence in my opinion points to this conclusion.
(3.) Criminal Appeal No. 418 of 1901 has been put in by the second, third and fourth prisoners who have been convicted of murder and sentenced to transportation for life. The evidence of the approver shows clearly that these three men were present at the attack made on Nabi Sahib at the spot marked D, that they assisted in carrying him from that place to the spot marked E and also from E to F where the man was killed. The second prisoner is said by this witness to have held Nabi Sahib's head as he was being carried from E to F and when he had been thrown down at the latter spot the third and fourth prisoners each threw a stone on him. As I have already stated, I believe that evidence but a question has been raised at the hearing of this appeal as to whether it has been corroborated in such a manner as to justify the conviction of these prisoners. The law as to the extent to which such corroboration is required is clear. Section 133 of the Evidence Act lays down that a conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice, but the section must be read with illustration (6) appended to Section 114 where it is stated that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In numerous reported decisions relating to these provisions of the law it has been laid down that the testimony of the approver ought to be corroborated in some material circumstance, such circumstance connecting and identifying the prisoner with the offence or as a learned English Judge observed in a case that is constantly cited "The confirmation which I always advise juries to require is a confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged Beg. V/s. Wilkes 7 C. & P. 272 per Alderson B.-- vide also the judgment of Chief Justice Peacock in Queen V/s. Elahi Bax B.L.R. Sup. Vol. (F.B.) 459. It is therefore necessary to consider in some detail the evidence that has been produced to corroborate the approver in so far as prisoners Nos. 2, 3 and & are concerned. The fourth witness gives an account of the attack made on Nabi Sahib at the spot marked D. He states that when the fifth and sixth prisoners seized hold of Nabi Sahib prisoners Nos. 2, 3 and 4 were present. He says "the others were standing aside,"...."They all surrounded Nabi Sahib." ..."When I went to my house I told my mother that all surrounded and beat Nabi Sahib." In cross-examination he states that he did not see the second, third and fourth prisoners beat Nabi Sahib. This boy is, as has been pointed out already, a nephew of the first prisoner and he has before the Sessions Court shown a great anxiety to implicate his uncle and his uncle's companions, the prisoners whose case is now under consideration, as little as possible. When, however, he was examined before the Committing Magistrate on the 31st May, he deposed as follows: "All beat .... accused Nos. 1, 2, 3 and & beat. I did not see with what they beat," If this evidence is believed, and I see no ground for discrediting it, it proves that the second, third and fourth prisoners took an active part in beating Nabi Sahib at the spot marked D in the plan. This evidence is corroborated to a certain extent by that given by the fifth and seventh witnesses. The former of these women deposes that when the men were disputing with Nabi Sahib about their bundles of wood she saw the second, third and fourth prisoners among the disputants. She then goes on to say that Nabi Sahib seized the first prisoner's bundle, threw it down and pushed him and adds "thereupon they surrounded him." She then described the manner in which Nabi Sahib was wounded by a blow struck with a hatchet. The seventh witness also was present when the altercation took place and she deposes that she saw the second, third and fourth prisoners among others get up and seize hold of Nabi Sahib by the waist. When examined before the Sub-Magistrate on the 16 May, the day that the body of the deceased was found, this witness said that she saw the first, third and fourth prisoners and the approver surrounding Nabi Sahib and beating him. The second prisoner, she says, "was standing afar." Before the Sessions Judge she admitted having made this statement to the Magistrate. When before the Committing Magistrate on the 1 June these three prisoners admitted that they were present at the early portion of the attack on Nabi Sahib, but pleaded that they did not accompany the murderers up to the place where the man was killed. It appears to me that the evidence of the fourth, fifth and seventh witnesses, which I have alluded to, affords such corroboration of the statements of the approver as is required by law in order to uphold a conviction. That evidence shows that not only were the prisoners Nos. 2, 3 and 4 present when the murderous attack on Nabi Sahib commenced, but also that they joined actively in that attack. Such evidence must, as it appears to me, be held to afford a confirmation of the accomplice in important facts which go to fix the guilt on these particular persons. It may also be added that the first prisoner in his confessional statements implicates these prisoners and these statements can be taken into consideration against them although they are not evidence in the strict sense of the word and cannot be held to afford corroboration of the tainted evidence of the accomplice. I am of opinion that the appeal presented by prisoners Nos. 2, 3 and 4 should be dismissed. I however, consider that the case of the second and third prisoners should be brought to the special notice of Government with a view to the reduction of the sentences imposed on them. Dav1es, J.;