N. Ibotombi Singh, J.
1. This appeal is preferred by the accused Kuthu Goala alias Bistha Goala, who is convicted under Section 302, Penal Code, for offence of murder of one Lakhinath Karmakar and sentenced to undergo rigorous imprisonment for life.
2-3. The facts of the case giving rise to this appeal may be briefly stated as under:
On 5-10-74, the Officer-in-Charge of the Bordubi Police Station received a telephonic message from Dibrugarh Police Station that one man appeared at Dibrugarh Police Station with a severed human head. He made entry of the message in the General Diary, Ext. 6 after which he came to the Dibrugarh Police Station and took charge of the accused Kuthu Goala and the severed human head. He also seized a bag by which the severed head was alleged to have been taken by the accused to the Police Station. Thereafter, he proceeded to the Keyhong Tea Estate as led by the accused where he found a dead body with its head severed. He held inquest on the dead body by framing the severed head with the dead body and seized a cycle found near the dead body. On his return to the Police Station, he lodged a report, Ext. 9, stating that the accused attacked and killed the deceased on 4-10-74 while the deceased was coming on cycle to attend to his night duty at Keyhong Tea Garden. He arranged for post-mortem examination of the dead body. The accused made the alleged confession, and his confession was recorded by a Magistrate, 2nd Class, who was specially empowered to record confession. A Medical Officer held autopsy on the dead body. On completion of the investigation, the Investigating Officer submitted a charge-sheet against the accused to stand his trial for an offence of murder punishable under Section 302, Penal Code.
4. The accused was tried by the learned Sessions Judge, Dibrugarh and Lakhimpur District at Dibrugarh. Pleading not guilty to the charge, the accused retracted the confession. The learned Sessions Judge found him guilty of the offence of murder with which he was charged. Hence, this appeal.
5. The conviction of the accused rests on his (i) judicial confession, Ext. 1, (ii) conduct of the accused by his surrender to the police station with a severed human head, in a bag, and (iii) the alleged statement of the accused to the police, P.W. 5, leading to the discovery of the dead body with its head severed from near the road within the Keyhong Tea Garden.
6. The Medical Officer, Dr. N.G. Pegu, who held the autopsy on the dead body found the following injuries:
(i) Head was found cut of at the neck at the level of the 3rd cervical vertebra with two overlapping oblique cut wounds at the back of the neck, one at hair margin and one at one inch below cutting completely through the 3rd cervical vertebra, spinal cord, vessels and muscles, trachea and aesophagus.
(ii) One cut wound 1 'X1/2'X scalp deep over the forehead right side.
(iii) One cut wound 1 'X1/2' X skin deep near the left nostril.
(iv) One cut wound 2 1/2'Xl' X bone deep over the left jaw, blood cloth present.
7. The Medical Officer opined that the injured died instantaneously due to shock and haemorrhage as a result of the severance of the head from the trunk by cutting at the neck. The deed body was identified to be that of the deceased by the Head Constable and also by the father of the deceased. It is proved beyond doubt that death was due to unlawful violence or criminal negligence. The only question for our determination is as to whether the accused is responsible for the murder of the deceased.
8. In this case the report, Ext. 9, cannot be treated as F.I.R., nor is the entry in the General Diary can be treated as F.I.R. as the Officer of the Dibrugarh Police Station who was said to have sent the telephonic message has not been examined to confirm the message.
9. As the conviction is based on the retracted confession which is said to have been corroborated by the two pieces of circumstantial evidence mentioned above, it is necessary to examine as to whether the confession was voluntary and true.
10. It is a settled law that when in capital case the prosecution demands a conviction of accused primarily on the basis of the confession, the Court must apply double tests, (i) whether the confession is perfectly voluntary and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence, and if the confession appears to the Court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. In such a case the question of proceeding further to apply the second test does not arise,
11. We shall now consider the question as to whether the accused made the confession, Ext. 1, voluntarily or not. According to the testimony of P.W. 1, Sri H.R. Hazarika, who recorded the confession, the accused was produced before him at 10-30 A.M. on 7-10-74 to record his confession, as sent by the Chief Judicial Magistrate. He further deposed that after giving him preliminary warning as provided under law, he remanded the accused to the judicial authority for reflection to be produced on the next day at 10-30 A.M. The accused was produced according to his evidence, on 8-10-74; and after giving him warning in the like manner and on his satisfaction that the accused was making the confessional statement voluntarily, he recorded the confession, Ext. 1.
12. It may be noticed that the confession, Ext. 1, does not bear any date. The learned Public Prosecutor, who appeared before us, took time to produce the records showing that the accused was kept in the judicial lock-up on 7-10-74, as directed by the Magistrate, Sri H. R. Hazarika. The register maintained by the Jail Department, which was produced before us is not conclusive of this fact. The custody warrant remanding the accused to the Jail Authority has not been produced before us. It is doubtful if the accused was kept in the Judicial lock-up on 7-10-74, giving him time for reflection before recording his confession. The prosecution has failed to prove this fact conclusively by positive evidence.
13. That apart, the confession, Ext. 1, ex facie does not show that the accused was given preliminary warning on 7-10-74, as deposed to by the Magistrate before he was sent to the judicial authority for reflection to be produced on 8-10-74 to record the confession. The order sheet dated 7-10-74 speaks otherwise. It does not support the version of the Magistrate that the accused was kept in judicial lock-up after giving him preliminary warning. As shown by the order sheet, the accused was produced before him on 7-10-74 to record his confession, after which he was sent to the judicial authority due to the closure of the Court on account of the sudden demise of Krishna Menon. Had the Magistrate given the preliminary warning, mention would have been found about it in the order sheet. There is, thus no contemporaneous record to show that the accused had before the confession being kept in judicial lock-up, as directed by the Magistrate or is there positive evidence to prove that he gave preliminary warning on 7-10-74 before he was remanded.
14. The confession also suffers from another infirmity. The accused was asked only a few questions. The questions and answers rendered into English are as follows:
Q. No. 1:- Do you know that I am not a police officer but a Magistrate?
Answer:- Yes, I know.
Q. No. 2:- You have nothing to be afraid of. You say whatever you want to say voluntarily.
Answer:- Whatever I say about the incident will be out of my voluntariness. Nobody has tutored nor threatened me.
Q. No. 3:- Has anybody beaten you to state before me?
Answer:- No I was not beaten.
Q. No. 4:- Do you know that you are not bound to make confession?
Answer:- Yes, I know it.
Q. No. 5:- You are liable to be convicted on your own statement? Answer:- Yes, I know it.
15. It is true, whether the confession was made voluntarily or not is a question of fact, and the appellate Court would be slow to interfere with such a finding unless the Court itself is satisfied that the impugned finding has been reached without complying with the true and legal test in the matter. In this case, the Magistrate has not put any pointed and searching question to the accused to ensure that the confession was made voluntarily. No doubt the Magistrate asked the accused about the date of arrest and the period of detention in the police custody but the Magistrate has not asked him as to how he was treated in the police custody. The Magistrate also did not question the accused as to why he was making the confession and there was nothing in the statement of the Magistrate from the questions on record to show that he told the accused that he would not be remanded to the police later on even if he did not confess his guilt. Such questions by the nature of the circumstances are pertinent and important. See Devendra Prasad Tiwari v. State of Uttar Pradesh : 1978CriLJ1614 .
16. The act of recording confessions under Section 164, Cr. P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164, Cr. P.C. must be fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the questions intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24 of the Evidence Act.
17. In this case as revealed by the questions and answers above, only a few questions were put as matter of mechanical enquiry. Taking into account the totality of the circumstances pointed out above in regard to the doubt of remanding the accused to the judicial lock-up and the absence of positive proof of the preliminary warning, and considering the omission to put pertinent and searching questions discussed above, the confession, in our opinion, suffered from serious infirmity. It is unsafe to rely on such retracted confession as the basis of the conviction for the offence of murder under Section 302, Penal Code. The accused has retracted the confession stating that he made the confession as he was beaten by police.
18. We next conside0r if there is other evidence to link the accused with the offence of murder, when the confession, Ext. 1, is excluded. There are two pieces of evidence, one relating to the statement of the accused relating to the discovery of the dead body under Section 27 of the Evidence Act and another relating to the conduct of the accused under Section 8 of the Evidence Act.
19 The first piece of evidence cannot be taken into consideration. According to the testimony of the Investigating Officer, P.W. 5, on the information given to him, he proceeded to the place as led by the accused, where he found a dead body with its head severed near a road within the Kehong Tea Estate. It is in evidence from the testimony of P.W. 3 Kali Charan Marmakar, father of the deceased that on getting an information on 5-10-74 from the Manager of the Tea Garden that a dead body was lying in the Tea Garden, he went to the Tea Garden and found the dead body of his son without head and that he recognised the dead body as that of his son. From the evidence of this witness, it transpires that he accompanied the police officer, P.W. 5, after he had known the place where the dead body was found. The police officer, P.W. 5 as such had got prior information about the place where dead body was lying before he went to the place along with the accused. The alleged statement of the accused to P.W. 5 as such does not come within the purview of Section 27 of the Evidence Act. This piece of evidence which formed one of the circumstantial evidence to corroborate the retracted confession is as such to be excluded.
20. The conduct of the accused that he came to the police station at Dibrugarh with the severed head of a human body in a bag is, however, admissible under Section 8 of the Evidence Act. In respect of this evidence, the accused in his statement under Section 313, Cr. P.C. admitted that he brought the human head of a dead body to the Police Station, but he stated that he happened to touch the severed head while he was in a state of drunkenness and brought it to the Police Station.
21. The result of our discussion is that except the piece of evidence in regard to the conduct of the accused admissible under Section 8 of the Evidence Act, there is no other evidence to fasten the accused to the offence. In our opinion, this evidence alone is not sufficient to find him guilty of the offence of murder. It may give rise to suspicion, but it cannot be the basis for conviction of the offence of murder. The prosecution has not succeeded to lead evidence to rule out beyond reasonable doubt the possibility of the deceased being killed by somebody else. The accused has explained his conduct in his statement under Section 313, Cr. P.C. as already mentioned. In our view, in the circumstances, the accused is entitled to the benefit of doubt and is entitled to be acquitted on that ground.
22. In the result, the appeal is allowed and the conviction and sentence of the accused are set aside. The accused is set at liberty forthwith, if he has not been released on bail.
K. Lahiri, J.
23. Although I have concurred with my learned brother in the decision, I have been asked by my magnus spirited brother to supplement it with my opinion.
24. Confession always brings back Harrision's Case (1783) 1 Leache's CC 264, where a woman and her two sons were executed for the murder of Harrision, who sometime afterwards reappeared; the conviction rested mainly upon the confession of one of the accused.
25. The old adage 'Optimum habemus testem confitentem reum' (the best testimony we have is the confession of the accused) inspirited in all ages the extreme human desire to obtain from the lips of the prisoner an admission of his crime notwithstanding various means and methods adopted to prevent, extortion of confession, like the provisions of Sections 331 and 348, Penal Code. Complaints and allegations of such procurements do not escape our notice. Statements are wrung out of the prisoner by external as well as internal forces. The instrumentality of his fellowmen, his own inhibitions, his self-created fear, hope and desperation and other mental reactions are some of those external and internal elements which prompt a weak-minded person to admit his guilt. However, genuine voluntary confessions are not uncommon.
26. The provisions of Section 164, Cr. P.C. is a safety valve, meant to muzzle involuntary confession. The century old provisions have remained intact so also the instructions of the High Court for the guidance of the Magistrate recording confession. Obviously, those who try to bye-pass the rigours manage to procure confession merrily bye-passing the obstacles by adopting various ingenious methods. The task of recording is on the judicial officers who are admittedly overworked. Recording of confessions, I am informed, does not go to their credit like, disposal of cases. It is natural that the solemn duty and obligations cannot be properly exercised by the over-burdened judicial officers.
27. What ought to be the presumption as to the state of mind of an accused who has just committed a gruesome offence like murder? The author of confession belongs to a class of persons known as criminals. Does it really stand to scrutiny that of criminal having committed murder can keep his composure, retain his mental faculty intact; retain his receptive capacity to understand the implications of the warnings. A confession must be 'perfectly voluntary' otherwise the Court should reject it. The term 'voluntary' means one who does anything of his own free will. It must be made spontaneously on his own volition. After commission of such a crime the existence of state of mind cannot be normal. Therefore, is the need to establish that the state of mind of the author was fit enough to make a voluntary incriminatory statement comprehending the implications of his admission. The warnings set forth in Section 164 of the Code are merely illustrative and not exhaustive. In my opinion, a Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. Penitenence, qualms of conscience, remorse etc. might be the ready and prepared answers. He must find out the real motive behind making the confession. If he finds that the reason to be wellgrounded and the prisoner has a real, genuine and impelling motive to make a clean breast of his crime, he must proceed to record the confession. However, if the answers are halting, incoherent and do not appear to be cogent, the recording Magistrate should cry a halt. The basic object to entrust the serious business of recording confession upon the judicial officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not. To adjudge voluntariness, in my opinion, two basic factors should be taken note of. First, the existing mental condition of the prisoner. The Magistrate ought to proceed with the assumption that the prisoner is labouring under mental agony or disorder having arrayed as an accused of a crime. A man in peril undergoing distress and torture, worry and strain is ordinarily not mentally fit person to make a statement to endanger his life and liberty. The Prosecution must confirm that the judicial mind of the recording officer was satisfied, by some objective tests; that a mentally disabled person coming from a criminal class was mentally fit enough to understand the implications of the warnings and to make a fatal statement. Secondly, the Magistrate must satisfy the court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession. Failing, a confession ought not to be accepted as voluntary.
28. Why not ask the prisoner to write out his own confessional statement, when he knows how to write? Thereby, the Court gets the real version coming from the prisoner himself; it ensures that the prisoner was mentally capable of translating his thoughts into writing as well. His inability to write the confession in his own words, though otherwise capable, would establish that he was mentally incapable of penning his thoughts in writing, when he could do it under ordinary circumstances.
29. Confession vis-a-vis Sections 164, 303, Cr. P.C. and Articles 22(1), 20(3) of the Constitution: Experience shows that ordinarily affluent persons do not make confession whereas almost cent per cent of the confessions come from those who are economically, educationally and/or socially backward. The reason is not far to seek. The rich get readymade legal assistance. What happens to a person like the present appellant a poor little Indian. He does not know his rights guaranteed under Article 20(3)-no person accused of an offence can be compelled to be a witness against himself nor does he know that there is a provision under Article 22(1) that a prisoner has a fundamental right to consult and to be defended by legal practitioner of his choice. He is uninformed about the salutary provision like Section 303 of the Cr. P.C. which provides that a person against whom proceedings are instituted under the Cr. P.C. has a right to be defended by a pleader of his choice. The term 'investigation' defined in Section 2(h) of the Code includes all the proceedings under the Code for the collection of evidence conducted by police. Recording of confession under Section 164 of the Code is part of the police investigation and falls in Chapter XII of the Code, Such recording of confession is a part of the Police investigation and is proceeding under the Code. The accused has fundamental rights under Article 20(3) as well as Article 22(1) of the Constitution to get legal aid. He has a similar statutory umbrella under Section 303, Cr. P.C.
30. In Nandini Sathpaty v. P.L. Dani : 1978CriLJ968 their Lordships recognised the right of an accused to consult his lawyer in the course of police investigation under Section 161 of the Code. In my opinion, the right of an accused to consult his lawyer, when he is interrogated by police, is equally applicable in the case of an accused brought by the police to cause his confession recorded by a Magistrate under Section 164 of the Code. I am of the firm opinion that it is absolutely essential for all Magistrates to explain to accused before proceeding to record confession, his fundamental rights under Article 22(1) and Article 20(3) of the Constitution as well as the provision of Section 303 of the Code. In the absence of clear explanation of the provision to a poor economically and socially backward accused like the appellant, recording of the confession should be abjured. When the rich and educated by dint of their wealth or education can safeguard their own interest why not those who are educationally, socially and economically backward should be afforded similar opportunities. In my opinion, in the absence of due explanation of the provisions to a handicapped person, like the present appellant, confession should not be accented. I am constrained to observe that if free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to a needy person it should begin from the moment when a poor and needy person is apprehended by the Police. It is useless to allow the roots to dry and thereafter to water the plant. Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality.
31. I entirely agree with my learned brother that in the instant case there is nothing to hold that the confession was voluntary. The prosecution has failed to satisfy the voluntariness of the confession. There is nothing on record to show that the accused who was labouring under great mental disorder as a prisoner, was capable of understanding the warnings and was in a fit frame of mind to make the confession. We have nothing before us as to the reason that impelled the accused to make the alleged confessional statement. The reason attributed is stereotyped and there was no effort made by the Magistrate to find out the impelling factor that had prompted the prisoner to make the statement. There is nothing to show as to why the prisoner was not asked to write his own confessional statement. These apart, I find that the learned Magistrate has perfunctorily recorded the statement in a very casual manner. The prisoner, a tea garden laboure economically, educationally and socially backward was not explained his constitutional and statutory rights to legal aid. It is no explanation that if lawyers are engaged at the stage of recording the confession most of the accused will refuse to make confessional statement. If persons economically, socially and educationally advanced can get the advantage of legal aid why should 99 per cent of the Indians be deprived of the opportunities?
32. In fine, I conclude that the provision of Section 164 requires a second look by the law-makers, the Judges Rules or the Executive Instructions issued by the High Courts to the Magistrate about recording of confession require modification and alteration, provided the observations made above are just and timely.