S. Rangarajan, J.
1. Jogendra Nath, Lila Nath, Kamala Kanta Nath, son of Sanilora and Kamala Nath son of Dutiram (appellants 1 to 4) have been convicted Under Sections 302/34, I. P. C. and sentenced to imprisonment for life by the learned Sessions Judge, Darrang, Tezpur in the following circumstances. On 7-11-1971 at about 10/10.30 P. M. the appellants are alleged to have attacked Bireswar and Haren Das with sharp instruments and caused several injuries which resulted in the death of both of them. There was not only no eye witness to the occurrence but there is no other direct or even circumstantial evidence to connect the appellants with the crime except their retracted confessions.
2. The dead bodies of the aforesaid Bireswar and Haren Das (also called Haria) were found on the side of a road near the daily bazar of village Bhalukekhowa. The brother of Bireswar the deceased Someswar Bora (P. W. 1) gave an ejahar to the O. C. Tezpur Police Station on 8-11-1971 at 8 A, M., Bhalukekhowa, being about 8 miles from the said place of occurrence. P. W. 1 had merely brought the fact of the said two dead bodies lying at the said place to the notice of the police ; he could not say anything more.
3. Though no motive has been mentioned in the ejahar it was stated at the trial by Hem Chandra Nath (P. W. 6) that there was a litigation concerning a plot of land from about three years prior to the occurrence between Bhadreswar, father of the first appellant and himself, in which the deceased Bireswar had been helping Bhadreswar. According to P. W. 6, on the night of occurrence, namely, 7-11-1971, at about 9-30/10 P. M the two deceased persons came to his house and called him, but he did not come out ; they went away after calling him for about three times. Next morning, on receipt of information, he went and found the dead bodies lying at the aforesaid place. None of the two magistrates who recorded the confessional statements of the appellants spoke about them at the trial ; one of the two magistrates Md. Faizuddin Ahmed Chowdhury (P. W. 8), who was alone examined as P. W. 8 at the trial, only spoke about the Verification which he made concerning the confessional statements made of the appellants. The evidence given by him in the Committing Court as well of the other Magistrate (in the Committing Court) who recorded the confession had been only tendered in evidence. So far as appellants 1 and 3 are concerned, it is seen that they had each of them been given only an hour's time for reflection. A longer time, about 3 to 31/2 hours, seems to have been given to the other two appellants for reflection ; one is not even able to say how much time actually was given to them for reflection except that both of them had been sent away after the confession being recorded in less than about 4 hours time, after they were produced before the Magistrate. The first appellant had stated to the magistrate concerned that he was taken into police custody on 10-11-1971 and produced before magistrate on 11-11-1971 and, on the prayer of the police, he was handed over back to police custody for 48 hours upto 13-11-1971 and then sent to judicial custody on 13-11-71 ; he had been produced before the magistrate at 10-30 A. M. on 11-11-1971 and was given an hour for reflection before his confession was recorded. The second appellant Lila Kanta Nath stated that he had been taken into police custody at 8 P. M., on 10-11-1971 at village Bhalukekhowa ; he was arrested on 10-11-1971 and sent to the magistrate at 12 A, M. on 11-11-1971 ; after his confession was recorded he was forwarded to the S. D. M. ; thereafter, he was sent by the S. D- M. to police custody. Kamala Nath son of Sarulora (Appellant No. 3) said that he was taken into police custody on 11-11-1971 at 9 A. M. at village Bhalukekhowa and taken to Tezpur P. S. at 4 P. M. on 11-11-1971, taken before the magistrate at 11 A. M. on 12-11-1971 and given one hour's time for reflection before his confession was recorded. Kamala Nath, appellant No. 4, said that he was taken into police custody at 2/4 P. M. at village Bhalukekhowa and taken to Tezpur P. S. at 4 p. m. ; he was arrested on 10-11-1.971 and then produced before magistrate at 11 A. M. on 11-11-1971 for his confession being recorded ; the magistrate forwarded the accused to the S. D. M. at 2-30 P. M., who sent him to police custody for 48 hours.
4. Abani Kumar Deb (P. W. 11), who was officer attached to Tezpur P. S., stated that he arrested appellant Kamala Nath son of Sarulora (appellant 3) on 12-11-1971 at about 9.30 P. M. without recording the time of his arrest. He arrested the other three appellants on 10-11-1971. There were certain recoveries, said to have been made in this case, but it seems sufficient to notice that a big sword was recovered from Kamal (discharged accused) on 11-11-1971 and a spear, with no handle was recovered from appellant No. 3 on the same day. None of these weapons were sent for chemical examination.
5. We have been taken through all the confessional statements of the four appellants ; in this case, on the basis of which, essentially, the learned Sessions Judge has convicted the appellants, despite the appellants having retracted from the said confessions. All the appellants had complained, when they were examined Under Section 342 Cr. P. C. (old) that they were tortured and induced to make the said confessions. Apart from the fact that appellants 1 and 3, in any case, were given riot more than an hour for reflection, one common feature, referred to in all the confessions of the four appellants, is that deceased Bireswar and Haren had taken liquor in the house of P. W. 6 and were rebuking the appellants, the people of that village ; it was only thereafter the appellants, according to their confessional statements, assaulted both the deceased and removed their corpses to the place where they were found. We are not setting out the variations in the versions in the confessions ; it may be sufficient to set out the version as given in the confessional statement of appellant No. 2. The first appellant Jogendra Nath woke him and brought him from his house to the road. When they were coming, they met appellauts 3 and 4 near the 'Namghar' of the village. The first appellant told them about the deceased having taken liquor in the house of P. W. 6 and having rebuked them. He then took Lila Kanta and went towards the house of P. W. 6 to ascertain whether the deceased were rebuking. They heard them rebuking the appellants and other villagers. Then Lila Kanta and himself had come back towards the 'Namghar' and met appellants 1 and 4 near the 'Namghar'. Then all the four went in a body towards the Sarkari road. Before they reached the road they stopped near the L. P. school of the village apprehending that deceased Bireswar might create further trouble. They discussed the matter amongst themselves. Near the L. P. school they met both the deceased coming on bicycles. Appellants 1 and 3 grasped the bandle of the cycle of Bireswar and questioned him why deceased Bireswar rebuked them. The first appellant dealt a blow with the dagger on Bireswar who fell into the ditch. Since Bireswar was accompanied by the other deceased Haren ; appellant 3 assaulted him with the spear, as a result of which he also fell down into the ditch. It was also mentioned (in the said confessional statement) that Haren was murdered because if he was left alive, he would depose against the appellants. Neither 3rd appellant nor any other appellant referred to their having a sword. When both of them died, the four appellants had a discussion and decided that it was not proper to leave the dead bodies in the village. Appellant 4 came to his house and brought a sack and all of them carried the dead body of Bireswar in it to the drain of the Sarkari road and left it where it was found ; the dead body of Haren was also similarly brought there. They also kept the two cycles near the two dead bodies. The sword, used for the purpose was thrown away ; deceased Bireswar's 'Khukri' (knife) was also thrown away along with the sack. It will be seen that all the four confessions, apart from not being corroborated by any other evidence adduced by the prosecution, have been contradicted by the evidence of P. W. 6, as noticed earlier, in a fundamental manner. It is worth recalling that P. W. 6 only said that both the deceased came to his house to call him, but he did not come out ; in other words he did not say that the two deceased were inside his house. The second appellant, in his confessional statement, went to the extent of stating that since none of the members of the first appellant's family came there in spite of the two deceased, who were drunk, declaring that they would assault him and his members of the family, they went to the extent of felling a plantain tree (in sheer anger and frustration). This part of the confession does not receive support from the testimony of P. W. 6 ; on the other hand, it has been vitally contradicted.
5A. It is worth noticing that the whole case, as revealed from the above confessional statements, squarely rests on the incident which is alleged to have taken inside the house of P. W. 6, where both the deceased, who were drunk, wanted to attack the appellants and, some of them overhearing it, which led to the attack on the deceased. It is, therefore, not at all possible to act upon any of the above said confessional statements, for this sole reason.
6. According to the evidence of P. W. 5, Dr. Nabibur Rahman, the following injuries were found on the two deceased persons :
1. One stab injury over the front of left chest two inches below and lateral to the nipple l1/2'xl'x5'.
2. One incised wound over the front of right chest two inches below the nipple-- 2'x1/2'x1/2'.
3. One bruise over upper part of left chest-- 4'x3'.
4. One incised wound along the mid-line of head extending from forehead backward-- 4'x3/4'x underlying bone partially cut.
5. One incised wound along the left lower Jaw -- 4'x1/2'x1/2'.
6. One incised wound along under surface of left jaw 2'x1/2'x1/2.
7. One incised wound front of left leg 2' below knee -- 2'x1/2'x1/2'.
Internal Injuries :
Left 1st to 5th ribs fractured interiorly, pleura punctured at the side of injury No. 1 and contains blood on the left side. Left lower lobe of lungs punctured, Right lobe of liner ruptured. Other organs healthy. Peritoneum contains fluid blood.
Fractures of 1st to 5th left ribs. Cut injuries to the left lungs with bleeding and rupture of liner with bleeding.
1. One stab injury over right Hypochondrial region of abdomen l1/2'x3/4'x4'.
2. One incised wound over left frontal region of scalp -- 2'x1/2'x1/2',
3. One incised wound over left temporal region of scalp 3'x1/2'x1/2'.
4. One incised wound over left forehead 3'x1/2vx1/2.
5. One incased wound over right occipital region of scalp -- 4'xl' underlying bone cut.
6. One incised wound over right chest--11/2'X1/4'x1/4'.
7. One incised wound over left eye brow l'x1/2' bone cut.
8. One incised wound over right gluteal region of back ll/2'x3/4'x1/2'.
9. One incised wound over medial surface of right knee 3'xl'xl'.
10. Abrasion over lower part of abdomen extending upto right back 13'x2'.
11. Three number of incised wounds over right scapular region of back -- l'x1/2''x1/2' each.
12. One lacerated wound with fracture of proximate phalange of left index finger. Interal injuries.
Occipital bone fractured and a slice 2'x1/2' separated from scalp making a hole. Membrane lacerated at occipital region. Brain lacerated at occipital region. Transverse colon punctured on right side. Peritoneum contains blood and faecal matter. Under surface of right lobe of liner punctured. Other organs healthy.
Fractured skull with laceration of membrane and brain. Perforation of large intestine and puncture of liner with bleeding into peritoneum.
7. The important fact to be noticed is that on each of the deceased there was only one stab injury. On Bireswar there were at least 11 incised wounds in addition to the stab injury. Oil deceased Hanen there were five incised wounds in addition to the stab injury. According to the second appellant, however, only lathi has been used by all of them. It is thus seen that the confessional statement of the second appellant is seen to be contradicted even by the medical evidence. No long sword was said to have been used, but still unaccountably a long sword was said to have been produced by the discharged accused Kamal and seized by the police. The legal position is now well settled ; we have discussed it at length in (The State of Assam v. Andresh Islari). Death Reference No. 2 of 1976 disposed of by us on 15-2-1977. Though a conviction based on a retracted confessional statement would not be illegal, prudence requires that the same should generally be corroborated in material particulars. Not only is there no other corroboration in respect of any of the confessional statements of the appellants, but it has also been materially contradicted, as noticed above. Confessional statements, such as we have in this case, even contradicted by the other prosecution evidence, cannot be safely acted upon in the absence of any corroboration.
8. The confessional statement of one appellant cannot be used as evidence Under Section 3 of the Evidence Act against the other appellants. The same could be only taken into consideration only Under Section 30 of the Evidence Act. The Supreme Court explained in Haricharan Kurmi v. State of Bihar : 1964CriLJ344 that the confessional statement made by one accused could only be taken into consideration against other co- accused if there is other acceptable evidence against the other co-accused for the purpose of lending further assurance which the Court may need ; in other words, if the Court which was willing to act upon other evidence has some hesitation in acting upon it against the other co-accused, the confessional statement could be taken into consideration only for getting the assurance which it may need. The confessional statement of one appellant is not evidence Under Section 3 of the Evidence Act against the other appellants.
9. It follows from the above discussion that in the absence of any other evidence in this case the confessional statement made by any one of the appellants cannot be used against the other appellants. What we have said so far, is sufficient to dispose of the present appeal.
10. It seems necessary, nonetheless, to refer to three unsatisfactory features which have come to our notice during the hearing of the appeal.
1. Sri Md. Faizuddin Ahmed Choudhury (P. W. 8) was asked to verify the confessional statement made by the appellant in this case ; he submitted a memorandum Ext. 12 (pages 140-141 of the paper book) concerning the verification made by him. P. W. 6 had incorporated therein the places which were shown to him by the accused as well as the further statement said to have been made orally by the accused to him including the production of certain weapons by some of the appellants. The learned Sessions Judge has also acted upon the said verifica tion and thought it lent credibility to the confessional statements of the appellants. This was clearly erroneous. The Supreme Court has considered this question in Deep Chand v. State of Rajasthan : 1SCR662 , Subba Rao, J. speaking for the Court, harmoniously interpreted Section 9 of the Evidence Act and Section 164, Cr. P. C. (old) in the same manner in which Section 25 of the Evidence Act and 164 of the Cr. P. C. had been considered by the Judicial Committee in Nazir Ahmed v, King Emperor AIR 1936 PC 253 : 37 Cri LJ 897. Subba Rao, J. referred to the overlap between Section 9 of the Evidence Act and Section 164 of the Cr. P. C. and pointed out that if a statement of a witness recorded by a magistrate in derogation of the provisions of Section 164, Cr. P. C. is allowed to go in as evidence Under Section 9 of the Evidence Act, then the object of Section 164 of the said Code will be defeated. It was further pointed out that such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded, if and to the extent to which Section 164, Cr. P. C. (old) was breached. All that may be permissible, while verifying the confessional statement of accused, recorded Under Section 164 Cr. P. C., is to ascertain, for instance, that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken or in furnishing clues to further enquiry. The statement of the law to the above effect by Teunon, J. as well as by the other learned Judge Shamsul Huda, J. in Amiruddin v. Emperor AIR 1918 Calcutta 88 was referred to with apporval. In the present case all the appellants were present before P. W. 8 when he made the said verification ; the places said to be pointed out by the concerned appellants must have been known only by the oral statements made by them, which the Supreme Court has said, (were) not admissible ; the verification report of P. W. 8 also expressly refers to the appellants' oral statements concerning production of weapons. The said report abounds in such inadmissible statements and ought, therefore, to have been excluded.
2. Another glaring illegality committed by the learned Sessions Judge is that he had relied upon the statements of the accused made before the I. 0. even after the production of the material objects. It is only a statement made to a police officer by a person in police custody leading to the discovery of the material objects in pursuance of the said statement that will alone be admissible Under Section 27 of the Evidence Act. The further statements of the accused to the effect that they attacked and killed the deceased with certain weapons could not also have been admitted.
3. The learned Judge has also wrongly understood the decision of the Supreme Court in Nishi Kant v. State of Bihar : 1969CriLJ671 as enabling the Court to reject a portion of a confession and act upon the rest in all cases ; this is not so. This can be done only in cases where there is other acceptable evidence on 1977 Cri. L. J,/83 VIII the side of the prosecution, in the light of which the portion of the confession so contradicted by the prosecution can be rejected and the rest acted upon. In the present case such a course could not be adopted because there is, as already noticed, no other evidence against the appellants, except their retracted confessions.
11. We hold that no case against any oil the appellants has been made out ; the con-| victions and sentences are set aside. The appeal is allowed in respect of all the appellants, who would be released forthwith unless they are liable to be detained for some other valid cause.
12. Since we have found it necessary to correct the learned Sessions Judge on the legal questions discussed above, we direct that a copy of this judgment should be sent to him (by name) wherever he may be now.