P.K. Goswami, J.
1. This appeal is directed against the judgment of conviction under Section 396, Indian Penal Code and sentence of imprisonment for life.
2. Prosecution case is that there was a Homoeopathic practitioner by the name of Rabindra Bhattacharjee at Gumrah village under Katigora Police Station. On 14th July 1966 he went to Silehar and did not return that day. His wife Lila Debi, deceased, two daughters Gita Bhattacharjee (P. W. 1) and Gayatri Bhattacharjee (P. W. 13) and two sons Ramendra alias Rama Bhattacharjee (P. W. 2) and Rathindra were sleeping at night inside their house. At about midnight, they were roused by the sounds of footsteps all round the house. In the meantime, two persons opened the door forcibly and got into the house. A lantern was burning inside the house. The intruders struck the lantern with an oar and the light went off. Lila Debi immediately flashed a torch and in that light accused Faizul Haque and Akal alias Akaddas could be recognised by both Gita and Gayatri. Simultaneously, 20/25 persons entered the house and enquired about Rabi Bhattacharjee. The two girls told that he had gone to Silchar. The intruders then ransacked the whole house and took away the belongings. They also took away the ornaments from the person of the wife and the daughters of Rabi Bhattacharjee. The inmates were assaulted. At that time there was high flood in the locality. One Parameswar Baisnab had taken shelter with his family in the compound of Rabi Bhattacharjee and was staying in the outhouse. Lila Debi called him from inside and asked him to inform the Police. At that time two persons got over the bedstead and assaulted her. One man kicked her down from the bedstead. Sounds of gun fire were also heard. After this, the intruders went out. While going out they called one of them as Atoi. After the miscreants had left the place,'' Gita. Gayatri and Rathindra went to the house of Begu Das (P. W. 6) who lives nearby with a common court yard. Then Arun Paul, Rajendra Deb Roy and Rama Bhattacharjee came to the house of Begu. Arun Paul had bleeding injuries on his leg and head. He told that dacoity had taken place in his house. At that time Gita and Gayatri told about the dacoity in their house and that her mother was assaulted. They also stated that they recognised Akal and Faizul and heard the name of one Atoi. They also told that ('hey would he able to identify some others if seen. The men who collected came to the house of Rabindra Bhattacharjeo and found his wife lying dead. The Officer-incharge of Katigora Police Station, who was staying over the night somewhere near Gumrah, on receipt of the news of the dacoity came early in the morning and recorded the first information report at about 6 A. M. lodged by Ramendra (P. W. 2). He registered the case and sent the injured for medical examination. He also held inquest over the dead body of Lila Debi. Afterwards, investigation was taken over by a C. I. D. Inspector specially deputed for the purpose. Accused Faizul Haque made a confessional statement before the Magistrate and tost identification parades were also held. After investigation, Police submitted charge-sheet against 22 persons under Sections 395, 396, 397 and 307, Indian Penal Code, and 20 of them were duly committed to the Court of Session under Section 396, Indian Penal Code.
3. Prosecution examined fifteen witnesses including the police officer. The evidence of three doctors examined in the committing Court was tendered under Section 509 Criminal P. C. From the evidence of P. W. 1 Gita, P. W. 2 Ramendra, P. W. 5 Praneswar Baisnab and P. W. 13 Gayatri Debi, it is clearly established that about 20/25 persons had entered the house of Ramendra Bhattacharjee, assaulted the inmates and forcibly took away the belongings and ornaments. The doctors who examined the inmates found injuries on their person and Lila Debi was killed in the course of the dacoity. The doctor has deposed that Lila Debi died of the injuries sustained. In view of this evidence, it has not been seriously disputed before us by Mr. Choudhuri about the commission of dacoity in the house of Ramendra Bhattacharjee. We are clearly satisfied on the evidence on record and agree with the finding of the learned Sessions Judge that dacoity was committed in his house.
4. Next important question for consideration is whether the appellants have been properly identified to have taken part in the aforesaid dacoity. The eyewitnesses are P. Ws. 1, 2, 5 and 13. P. Ws. 8, 9 and 10 recognised Khalilur Rahman Mekai Hazi by his voice. There were two test identification parades. The learned Sessions Judge disbelieved the evidence of P. W. 2 and we are also not going to rely on that evidence. So far as accused Akal is concerned, his name appears in the first information report and he is identified by P. Ws. 1 and 13. P. W. 1 stated that in the lower Court she had not identified any accused except Faizul and she said that she could not recognise Akal out of fear. P. W. 13 also did not identify any accused in the lower Court, She stated that she did not state in the lower Court that she has recognised the accused persons as she was not asked this question. In view of this evidence we are prepared to give Akal the benefit of reasonable doubt and he is acquitted of the charge.
5. Regarding Faizul, whose name appears in the first information report, he has been recognised by P. Ws. 1, 2, 5 and .13. This accused also made a confessional statement, before the Magistrate, P. W, 12, which however has not been considered by the learned Sessions Judge as a voluntary confession. So far as his recognition by P. W. 1 is concerned, we are satisfied that she can be relied on in respect of this accused. She named and identified him in the lower Court. We are not giving any importance to the recognition by P. W. 2. So far as P. W. 5 is concerned, although he identified this accused in the parade as well as in the Sessions Court, he had not identified him in the committing Court. We are, therefore, not prepared to accept his evidence of recognition of this accused. P. W. 13 also had not identified any accused in the lower Court and hence her evidence of recognition with regard to this accused cannot be relied on. So far as this accused is concerned, we are therefore left with the evidence of P. W. 1 regarding recognition and his confession.
6. The learned Sessions Judge has held that the confession of this accused has no utility for the following reasons. To quote his own words: 'It appears from the statement as per Ext. 2 that the Magistrate did not observe all the formalities very carefully in recording the statement. It does not appear that he disclosed his identity that he was not a Police Officer. The record does not show what questions he put to the accused to be satisfied that the confessional statement was voluntary. It also does not show to whom the accused was forwarded after the confessional statement was recorded. Whether cautions were given to the accused after the period of reflection was over is also not known. The accused now says that the confessional statement was obtained from him by subjecting him to police torture. It does not appear from the confessional statement that the Magistrate tried to ascertain how the accused was treated while in Police custody. So under all the circumstances I am of opinion that this confessional statement cannot have any utility whatsoever even against the maker himself. We have very carefully gone through the evidence of the Magistrate, P. W. 12, who clearly stated as follows:
In July, 1966 I was (the Sub-Divisional Officer at Silchar. Accused Faizul Haque was produced in my Court for recording his confessional statement. I explained to him that I was not a Police Officer but Magistrate and he was not bound to confess. He should not tell a lie or should not tell anything as tutored by others and any part of his confession might he used against him in the case. He was then allowed more than three hours time for thinking. During that period he was kept in my chamber under the charge of my peon Aswini Nath. After that period had elapsed I again announced the words of warning to him as before. Then I put some questions to the accused. From the answers to the questions I was sure that he wanted to confess his guilt of his own accord. And when I recorded his confessional statement... There was no police officer present while words of warning were announced, when he was allowed time for thinking and at the time of recording of confessional statement.
In cross-examination ho stated that there was no mention in the form recorded by him that he had said to the accused that he was not a police officer but a Migstrate. The accused made no allegation to him against the police. He had not asked him about the police treatment towards him and that he had not recorded the confessional statement in the question and answer form.
7. It is not understood what the learned Sessions Judge meant by stating that the confessional statement has no utility, He has not in so many words held that the same is not voluntary nor false. Assuming that he intended to exclude the confession from consideration on the ground that the same is not voluntary, we have to scrutinise the confession as well as the evidence of P. W. 12, the Magistrate recording the confession. We have already quoted the material portion of the evidence of P. W. 12. It clearly appears from his evidence that he explained to the accused that he was not a police officer but a Magistrate and that he was not bound to confess. That fact that this statement has been given on oath by the Magistrate and the same had not been recorded in the confession (Ext. 2) is not of much consequence. The Magistrate has not been cross-examined to the effect that this statement which he has given is not correct. The Magistrate is a Senior Sub-Divisional Magistrate and the accused was produced before him in his Court and it can fairly be presumed that the accused well knew that he was produced before a Magistrate, particularly because the Magistrate himself has stated so in his evidence and the same has not been challenged. This reason given by the learned Sessions Judge is therefore not correct Learned Sessions Judge has also remarked that the Magistrate has not observed all the formalities very carefully. As is well-known that the Magistrate recording the confession has to comply with the provisions of Section 164 and Section 364 of the Code of Criminal Procedure. Reading the confession which has been duly recorded in the form prescribed for the purpose, we find that no objection can be taken to the recording of the confession that it has not complied with the provisions of Section 164 and Section 364 of the Code. It is true that the confession has not been recorded in the form of questions and answers. Section 364(1) provides that 'whenever the accused is examined by any Magistrate, or by any Court other than a High Court, not being a Court of the Judicial Commissioner, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined....' Even though the entire confessional statement is not in the form of questions and answers, we do not think that this is an obligatory procedure under Section 364. Even if the confessional statement is given by the accused in the form of a narrative without the intervention of the Court and the same is recorded in the language in which the accused has expressed, there is no serious infirmity in recording such a confession. If, however, during the process of the recording of the statement, some questions are put by the Magistrate, the same have got to be noted and the answers given to those questions shoul'd also be recorded. There is nothing to show in the cross-examination of P. W. 12 that the Magistrate got this statement by putting questions to the accused. It may therefore be fairly assumed that the confession was in the form of a narrative as disclosed and the Magistrate has recorded the same in the language of the accused. We are therefore satisfied that there is no non-compliance with Section 364, Criminal P. C. in recording the confession. We also do not find any non-compliance with the provisions of Section 164, Criminal P. C. in recording the confession. The Magistrate made a memorandum at the foot of the confession as required under this section . We find from Exhibit 2 that he has also put several questions in order to determine for himself whether the confession was voluntary or not. The question may be noted:
Question. Whether you are confessing your guilt of your own accord or you are making the confessional statement as tutored by others?
Answer. I confess the guilt of my own accord.
Q. If you confess guilt you will be punished and will not be condoned? A. I know this.
Q. Has anybody told you to confess the t?
A. Nobody has said.
Q. If you confess guilt you will be punished basing on this?
A. I known this.
He has also given brief reasons for his believing that his confession was voluntary any the same may be also quoted:
The accused was cautioned that he is not bound to make any confession before me and I gave him more than three hours for reflection. From the mode of demeanour of speaking, I understand that the so-cused made the statement voluntarily.
We are, therefore, not at all satisfied that the learned Sessions Judge has any justifiable reasons to exclude the confession and for holding that the confession is either not voluntary or that it has no utility on the ground that the Magistrate has not observed the formalities required under the law. If the learned Judge had any misgiving about the recording of the confession it was his duty to put to the Magistrate necessary questions to clear the entire matter. We are satisfied from the recording of the confession as well as from the evidence of P. W. 12 that the accused's confession was voluntary and the only point that will be required to be considered is whether it is true and can be safely relied upon against the accused since the same has subsequently been retracted.
8. We will now read the confession which is as follows:
A dacoity had been committed at Chikar-kandi Refugee Colony 20 days before the Puja. In one day 6/8 days after the dacoity Mati Mia, Abdul Hazi, Mati, Hanai Mia, Habibur Rahman, Barbhuyan, Azei, Sukkur, Konai, Faizur, Safi, Lutfur, Safar Ali, Mekai Mia discussed in the Tea Stall of Azoi that the Hindu Refugees had outraged the modesty of a Muslim girl. At that time I was sipping tea in the tea stall. At that time Suresh Malik, Rajani and Putul were in the shop. They also joined with the Muslim.
4/5 days prior to this dacoity everybody assembled in the house of Mekai Mia and talked about this. Habib Ali and Akal were present, along with the men who assembled in the tea stall. I was also present. We all decided that we would commit dacoity in the house of Arun Paul. And then at 9/10 O'clock we all went to our respective houses. And it was decided that Akal and Habib Ali would bring dacoits from Pakistan. Akal and Habib went to Pakistan on the Wednesday and returned on the day of dacoity with twenty dacoits, The dacoits dined out in the house of Balu Mia of Mahadevpara. The dacoits told me that they had taken their meals at Mahadevpur, The dacoits came along with Akal. Habib, Junoi from their house and assembled to the west of Gumra bazar at a distance of one and half furlong from my house. They were coming by three boats. Lutfur of my own village called me 'Faizul! Faizul! get up there is a word.' I asked him what was the matter. He replied that they would commit dacoity in the house of Anil Babu. I am a handyman of Anil Babu. I said 'No.' one man came with a rifle and told me 'If you do not go you will be killed,' I stood and followed them. I found them to the east of the homestead of Mekai Mia. Razak, Azizul, Mantazir, Amin Ali Matula, Katu Mia came and assembled there along with some persons. We all, about 30 persons took rest on the Sadirkhar Road proceeding towards the Gumra Bazar. Then one Pakistani and Lutifur Rahman went towards Khelma village with rifle. We all were sitting. They came with 20/30 persons. Khairul, Abdul Khalique, Abdul Rahim, Abdul Mazid came from the side of Khelma. We all met at the crossing of the three roads at Gumra Bazar. Some persons went to the house of Doctor Babu to the north. 12/14 Pakistani went there accompanied by Farid, Abdul Matin, Fazlur, Azoi, Lutfur. We encircled the house of Doctor, Then there ensued 'halla' and cry and I heard the sounds of two rifle shots. Parameswar Vaisnab was in the out house of the Doctor Babu. The Vaisnab raised alarm coming out of his house. The rifle was fired immediately after the alarm was raised. The articles were brought out and we received the same. We had not received much goods. Farid went inside with a 1970 Cri. L. J. 50. rifle. There were two rifles in the outside.
We all went to the house of Arun Babu, Abdul Matin, Fazlur, Lutfur, Azoi broke the door of the house of Arun Babu along with some Pakistani. Immediately after the door had been broken 6/8 persons went inside the house of Arun Babu with a rifle. And with another rifle four Pakistani, Abdul Razak, Azizur and Habib Ali went towards the Thana. And the remaining all halted in front of the house of Arun Babu. The daroga Babu came out calling one Assamese Babu. At that time Farid stood on the road with a rifle. As soon as the Bara Babu had raised the loud cry then Farid focussed torch light and fired rifle. After that heard the sounds of rifle shots from inside the house of Arun Paul. The dacoits went out with all the articles they wanted to take away. I alone stood in front of the house of the Babu. Then the people of the eastern villages went towards east and the residents of the western villages went towards west. I also ran away with them towards west. At the time of running one man dropped something on the bridge with a sound. Crossing the bridge 6/8 persons went away sailing on the village boat. The Pakistani people went away sailing on the very two boats of Ghandpur. I had gone first along with them and then went to my house. It is Farid who has assaulted Bara Babu.
When Farid had fired shot then the persons who were at the side of the Thana came back. The Daroga raised a cry '1 have been killed' and instantaneously fell on the ground.
This confession gives lot of details as we have seen. It starts by referring to a dacoity at Ghikarkandi Refugee Colony which has also been mentioned by P.W. 3 in the course of his cross-examination. The confession not only implicates the accused himself but also others against whom, of course, we will not take this retracted statement into consideration. He has clearly stated that 'we all decided that we would commit dacoity in the house of Arun Paul'. It is true, as pointed out by the learned Counsel for the accused, that since he was a handyman of Arun Paul, he was not willing to go to the house of Arun Paul for committing dacoity and that ho was threatened to be killed if he would not. It, however, appears from the confession that he with others were encircling the house of the Doctor, namely, Rabi Bhatta-charjee. He at first naturally declined to go to the house of Arun. The fact that the house was encircled is corroborated by the evidence of P.W. 1, who stated that she heard the sounds of footsteps around the house. The accused also refers to Praneswar Baisnab who was in the outhouse of Doctor Babu, meaning Rabi Bhattacharjee and that he raised alarm coming out of the house, when the rifle was tired. This fact is corroborated by P.W. 5 Praneswar Baisnab. The accused also mentioned about the articles being brought out and that 'we received the same'. From the house of Rabi Bhattacharjee, the confession proceeds to disclose, they all went to the house of Arun Babu and certain persons mentioned therein broke the door of the house of Arun Babu and 6/8 persons went inside his house with a rifle. This fact is established from the evidence of P.W. 7, Amalendu Paul, brother of Arun. His evidence is that he went to the house of Rabi Bhattacharjee running while dacoity was in operation in their house and found the wife of Rabi Bhattacharjee dead. This clearly shows that the dacoity was first committed in the house of Rabi Bhattacharjee and after that only the dacoits went to the house of Arun Paul. This sequence of events is clearly mentioned in the confessional statement which is corroborated by P.W. 7. He also stated in the confession that he heard rifle shots from the house of Arun Paul and it appears from the evidence of P.W. 6 that Arun Paul had three gunshot injuries on his person. This witness also found several gunshot injuries on the person of Praneswar Baisnab (P.W. 5). There is another reference in the confession to the bridge which was said to be crossed by the dacoits after the occurrence. To quote from the confession again--'At the time of running one man dropped something on the bridge with a sound. Crossing the bridge 6/8 persons went away sailing on the village boat. The Pakistani people went away sailing on the very two boats of Chandpur'. The fact of the dacoits leaving the locality by passing through the bridge is deposed to by P.W. 8. He stated in his evidence that while the dacoits were passing through the bridge he heard the voice of Mekai Mia and Basir. Although in the confession there is also reference to a certain Daroga Babu being fired at by Farid, there is nothing in the prosecution evidence to support this. It is, however, mentioned by Mr. Choudhuri that there was a separate case regarding the murder of the Daroga Babu, which, it is said, ended in acquittal. We would, however, not give any importance to the part relating to the Daroga Babu in considering the confessional statement. As noticed above, there are various facts and circumstances recorded in the confession which have been fully corroborated by the evidence of the respective prosecution witnesses with regard to these. Reading the confession as a whole, we are satisfied that the statement made by the accused before the Magistrate is voluntary as well as true and it has been also corroborated in several material particulars, which lend further assurance to the genuineness of the same. This confession itself, although retracted, will be sufficient in law for the purpose of convicting accused Faizul, Coupled with this, we have in addition the evidence of P.W. 1 who has recognised him and this evidence of recognition is also reliable.
9, Mr. Choudhuri submitted that we must not give any importance to this confession which was recorded by the Magistrate on the same day when the accused was produced from police custody. This accused was arrested at 6-30 a.m. on 15th July 1966 and was sent to the Magistrate the following day at 12 noon. His confession was recorded at 3-30 p.m. and ended at 4-30 p.m. Although it does not appear in the statement as well as in the evidence of P.W. 12, where he was forwarded after the recording of the confession, it is clear from the order sheet of that date that be along with other accused were forwarded to the Jail Kazat. The learned Counsel relied on a decision of the Supreme Court in Sarwan Singh Rattan Singh v. State of Punjab : 1957CriLJ1014 , to support his submission that at least twenty-four hours' time should have been given to this accused before his confessions were recorded. The Supreme Court observed in that case as follows;
It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.
After making these observations, their Lordships in that case held that in the circumstances of that case the time allowed, namely, half an hour to the accused was not sufficient. Here was a case where the confessing accused Sarwan Singh was arrested on 25th November 1955 and was kept in police custody 'without any ostensible explanation or justification' until 30th November on which date he was sent to the Magistrate to record his confessional statement at about 2-30 p.m. He was given about half an hour to think about the statement and soon after the confessional statement was recorded. The learned Magistrate was asked in that case why he did not give more time to the accused and his answer was that the accused seemed to insist upon making a statement straightway. It is in the background of these facts that the Supreme Court made the above observation which we have quoted and held that the particular confessional statement was not voluntary.
10. We are, however satisfied in the instant case that the confession of Faizul is a voluntary confession which he made on 16th July 1966 and retracted in the course of his examination in the Court of Session on 4th September 1968. There was no suggestion to the Magistrate about any police torture nor was the fact brought to the attention of the Magistrate or the Court at any time during or immediately after the confession was recorded. We have already held that the confessional statement has been corroborated in several material particulars and as such we are satisfied that we can act on this statement for convicting the accused under Section 396, I, P. C. Besides, as already noted, he has been recognised by P.W. 1 and corroborated by P.Ws. 3 and 4.
11. Regarding accused Abdul Rahim alias Katai, Khalilur Rahman alias Mekai Hazi and Ataur Rahman alias Atoi, we have noticed in the evidence of the identifying witnesses that they were not properly identified both in the Committing Court and in the Court of Session. P.W. 1 admitted in the course of her cross-examination that she did not identify any accused except Faizul in the committing Court and that she could not recognise Akal out of fear. It will, therefore, not be safe to rely upon the evidence of recognition of this witness regarding any of the accused persons other than Faizul about whom, however, she made no mistake. P.W. 5 also admitted in cross-examination that he did not identify Mekai, Faizul and Kotai in the committing Court as nobody had asked him. This very statement makes the recognition of the accused persons open to doubt. P.W. 13 knew Akal and Faizul from before by name and face. She recognised them and also identified Akal, Faizul, Atoi and Mekai in the Sessions Court. She, on the other hand, admitted in her evidence that she did not identify any accused in the committing Court. She further deposed that she did not state in the committing Court that she had recognised any accused persons as she was not asked. This admission makes her evidence of recognition of any of the accused persons very suspicious and we will not rely upon her testimony regarding the recognition of any of the accused. Regarding Faizul, as discussed above, we have no hesitation, whatsoever, in relying upon his confession for convicting him under Section 396, I. P. C. and also accept the evidence of recognition of P.W. 1 so far as this accused is concerned. The learned Counsel strenuously contended that his confession has not been corroborated in material particulars. But we have already analysed the confession and found that this argument has no substance. It is well established that there is no legal bar to base a conviction on a retracted confession if the same' is voluntary and true. There is, however, a rule of prudence to look for corroboration of the same in order to assure the mind of the Court that it is safe to convict the accused on his retracted confession.
The test for the evidence of an accomplice may not be appropriate for dealing with confession which is retracted. Section 133 and Section 114, Illustration (b) of the Indian Evidence Act relate to the evidence of accomplice only. As the Supreme Court has observed in Subramania Goundan v. State of Madras : 1958CriLJ238 , at p. 70, 'not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and, therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient, while an accomplice's evidence should be corroborated in material particulars.'
12. Mr. Choudhury also submitted that we should not interfere with the finding of the learned Judge rejecting the confession as involuntary. Section 423, Cr. P. C. gives ample powers to appellate Court to reappreciate the whole case afresh. Even' in an appeal against conviction, although the appellate Court will naturally be slow and circumspect in negativing the conclusions of the Court below in favour of the accused, it will not merely ditto such findings when the grounds on which these are based are patently wrong or non-existent. We have, therefore, already refused to accept the reasons of the learned Judge regarding the confession. The following observations of the Supreme Court in Jai Dev v. State of Punjab : 3SCR489 are apposite:.even if the trial Court had disbelieved the evidence, it was open to the High Court, on a reconsideration of the matter, to come to a contrary conclusion.
The evidence of recognition of Mekai Hazi by voice as stated by P.Ws. 8, 9 and 10 cannot also be considered as trustworthy in the entire circumstances of the case.
13. In the result, we give the benefit of reasonable doubt to accused Akal All alias Akaddas, Atoi alias Ataur Rahman, Mekai Hazi alias Khalilur Rahman and Abdur Rahim alias Kotai and set aside their conviction and sentence. Their appeal is allowed. They shall be released from jail forthwith. We affirm the conviction of Faizul Hague under Section 396, I. P. C. together with his sentence of imprisonment for life. His appeal is dismissed.
M.C. Pathak, J.
14. I agree.