1. [His Lordship dealt with the case of accused Nos. 1 to 8 and 22 and came to the conclusion that their conviction was correct and should be upheld. The judgment then proceeded:] The convictions of accused Nos. 9 and 10 are mainly based upon their retracted confessions. It has been contended by Mr. Thakor before us that the confession of accused Nos. 9 and 10 were not recorded by the Magistrate in accordance with the requirements of Sections 164 and 364 of the Criminal Procedure Code and of the High Court Criminal Circulars in that behalf, and are, therefore, inadmissible in evidence. In both these confessions the Magistrate has recorded the necessary certificate at the end to the effect that they were voluntarily made; but he has not recorded the questions he put and the answers given, the perusal of which would satisfy the Court that the confessions were voluntarily made, and there was no inducement held out by the police by which the confessions could be said to be prompted. In order to remedy the defect the Magistrate was examined as a Court witness before the Sessions Court. It was contended by Mr. Thakor that the defect in recording the questions and answers amounts to an infraction of the law and is not a mere omission which can be cured under Section 533 of the Criminal Procedure Code. Section 164(3) of the Criminal Procedure Code inter alia pro-vides that no Magistrate shall record a confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot of such record to the effect that the confession was voluntarily made. Section 364 of the Criminal Procedure Code inter alia provides that whenever an accused person is examined by a Magistrate, the whole of such examination including every question put to him and every answer given by him shall be recorded in full and such record shall be shown or read or interpreted to him and he shall be at liberty to explain or add to his answers. There are certain exceptions to this general rule, but they would not apply here. The High Court has by its Criminal Circulars issued certain instructions for the guidance of the Magistrates recording confessions and statements under Section 164 of the Criminal Procedure Code. These are set out in para. 3 of Chap. I at p. 2, of the printed Criminal Circular Orders, 1925. Paragraph 3 (i) requires that the Magistrate should invariably question the accused person as to the length of time during which he has been in the custody of the police, and that it is not sufficient to note the date and hour recited in the police papers at which the accused person is said to have been formally arrested.
2. Section 533 of the Criminal Procedure Code provides that whenever the Court finds that any of the provisions of either Section 164 or Section 364 have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded and notwithstanding anything contained in Section 91 of the Indian Evidence Act such statement shall be admitted if the error has not injured the accused as to his defence on the merits. In Queen-Empress v. Visram Babaji I.L.R(1896) . 21 Bom. 495 Strachey J. at p. 501 reviewed the earlier authorities and came to the conclusion that neither the language nor the object of 8, 533 would justify a distinction between an 'omission' which would be curable by Section 533 and an 'infraction'or'direct violation' which would not be curable by that section. The learned Judge lays down the test that as long as the irregularity does not injure the accused as to his defence on the merits it can be cured under the provisions of Section 533. This ruling was followed by a Divisional Bench of our Court in Queen-Empress v. Raghu I.L.R(1898) . 23 Bom. 221 The learned Judges there observe that the true principles which should govern such cases are those which are laid down in Queen-Empress v. Viran I.L.R.(1886) Mad, 224 viz., that Section 533 merely gives legal sanction to the maxim omnia prcesumuntur rite case acta. The test laid down is that whenever no attempt has been made to comply with the provisions of the law, Section 5ii3 would not render a confession admissible. Section 533 is intended, according to this ruling, to apply to all cases in which the directions of the law have not been fully complied with, and would apply to omissions to comply with the law as well as to infractions of the law. We are bound by this ruling. To the same effect are the rulings of the Allahabad High Court in Emperor v. Deo Dat I.L.R(1922) . All. 166 and of the Patna High Court in Ramai Ho v. King-Emperor I.L.R. (1924) Pat. 872
3. The evidence of the Magistrate has satisfactorily proved that the confessions made by both accused Nos. 9 and 10 were voluntarily made and that he had as a matter of fact satisfied himself by putting questions and getting answers that the confessions were being voluntarily made by both accused.
4. Mr. Thakor has contended in the alternative that the confessions would be inadmissible in evidence, but under the provisions of Section 533 the Magistrate's oral testimony as to the contents of the confessions would be admissible notwithstanding the provisions of Section 91 of the Indian Evidence Act. He has urged that the language of Article 533 making the statement admissible, notwithstanding Section 91 of the Indian Evidence Act, has reference to this that the evidence which is being made admissible is not the confession itself, but the evidence given by the Magistrate of its contents. The rulings to which I have referred above would not, in my opinion, support such a contention. They seem clearly to lay down that the confession itself is admissible and the defect in it is curable under Section 533. The Magistrate's evidence would however meet the point raised by Mr. Thakor, The Magistrate has stated in his evidence that the contents of the two confessions were correctly recorded by him, and has thus made the contents of the confessions part of his evidence.
5. The next question we have to consider is what weight should be attached to these confessions against the accused making them, Mr. Thakor has urged that there is internal evidence in the confessions that at any rate some of their contents are untrue. Both confessions refer to the pelting of stones at the scene of offence, but there is no evidence in the Panchnama of the scene of offence that any stones were found lying there. I am not inclined to attach much importance to the absence of positive evidence to corroborate this part of the confessions. Mr. Thakor has further relied on the point that in the confession of accused No. 10 only accused Nos. 3, 18 and 20 of those convicted are implicated. A confession, in my opinion, in order to be relied upon need not make a clean breast of all the details in connection with the crime, but if the Court is satisfied that it has been voluntarily made, it may take into consideration such parts of it as it may by itself or in the light of the other evidence in the case consider to be true. Mr. Thakor has further relied upon the point that neither of the two confessing accused implicates himself in the commission of the murder of Mandeppa and Yemanurappa, but implicates himself to the extent only of having taken part in the beating and the robbery which took place. If the accused took part in beating Mandeppa, Yemanurappa and Basawa they would be liable for the natural and probable consequences of such act. Whether the part they took in the com- mission of the crime would or would not amount to the offence of murder or grievous hurt would be a matter of law for the Court to determine in the light of the evidence and the surrounding circumstances as well as their confessions.
6. In Queen-Empress v. Basvanta I.L.R(1894) . 19 Bom. 728 our Court has held that a retracted confession, if proved to be voluntarily made, can be acted upon along with the other evidence in the case, and that there is no rule of law that the retracted confession must be supported by independent reliable evidence corroborating it in material particulars, The use to be made of such a confession, it is observed, is a matter of prudence rather than of law. In Queen-Empress v. Gangia I.L.R(1898). 23 Bom. 316 our Court, following the decision in Queen-Empress v. Gharya, again held that there is no rule of law that a retracted confession cannot be treated as evidence unless it is corroborated in material particulars by independent reliable evidence.
7. In Queen-Empress v. Basvanta . 2 Bom. L.R. 761 our Court has held that the law in India is not identical with the law in England on the relevancy and admissibility of confessions and that a mere subsequent retraction of a confession is not enough in all cases to make it appear to have been unlawfully induced. The earliest ruling of our Court on this point is to be found in Queen-Empress v. Balya Dagdul (1898) Unrep. Cr. C. 952 to which a reference is made in Queen-Empress v; Basvanta 2 Bom. L.R. 761 . According to that ruling a confession to be admitted at all in evidence must be proved to have been made voluntarily; and when it is admitted in evidence it has to be dealt with like any other piece of evidence and acted on only if it is believed to be true. A confession, it is observed, though made voluntarily by an accused person before a Magistrate and subsequently retracted is sufficient by itself to justify a Sessions Court to act upon it. To the same effect is the ruling of the Madras High Court in Queen-Empress v. Raman I.L.R(1897) . Mad. 83.
8. Reliance is placed on behalf of the accused Nos. 9 and 10 on the case of Emperor v. Azimyddin (1920) Cr. L.J. 638 where a Divisional Bench of the Allahabad High Court held that a statement by an accused person not recorded in strict compliance with the rules for recording confessions, and without asking any incidental questions to test the voluntariness and genuineness of the confession, and which was wanting in considerable details and only contain- Vi ed matters which could have been easily got from the investigation made by the police, and which was uncorroborated and withdrawn at the earliest opportunity, could not be regarded as a voluntary and genuine confession upon which to base a conviction. That case in my opinion governs its own facts which were materially different from those with which we have here to deal.
9. The confessions of accused Nos. 9 and 10 are corroborated in one material particular by the evidence of Hanma Fakirappa, namely that they were among the persons who had assembled at the temple prior to the commission of the dacoity. The evidence of Hanma has been impeached on the ground that he is an omnibus witness who speaks to having seen all the accused except accused No. 6 at the temple on the evening of the offence. There is no sufficient reason shown why the evidence of Hanma should be doubted that he saw accused Nos. 9 and 10 among those who had assembled at the temple on this occasion, In my opinion the convictions of both accused Nos. 9 and 10 can be sustained on the strength of their own confessions and the corroboration those confessions have received in a material particular by the evidence of Hanma.
10. With regard to the conviction of the remaining accused they are based mainly upon the retracted confessions of accused No. 9 who implicates all of them and accused No. 10 who implicates accused Nos. 18 and 20 only. Although the weight of these confessions may be regarded as great against the parties making them, they must be accepted with great caution against the co-accused whom they implicate unless there is corroboration forthcoming from an independent source which would make it safe to act upon the confessions. In Makaud Ali v. Emperor (1920) 22 Cr. L.J. 200 the High Court of Patna held that though, as a matter of law, a conviction may be based upon a retracted confession if the Court can come to the unhesitating conclusion that the confession is voluntary, yet, as a matter of prudence, no conviction should be based upon such confession unless it is corroborated in material particulars and that whatever value may be attached to the retracted confession of an accused person against himself, the value to be attached to such a confession as against a co-accused is exceedingly weak, In Emperor v. sabitkhan (1919) 21 Bom. L.R. 648 on a reference on difference of opinion between Heaton J. and Shah J., Scott C.J., concurring with Heaton J. and differing from Shah J., held that the confessions of the co-accused were evidence against the accused, inasmuch as there was testimony independent of the confessions which affected the accused by connecting or tending to connect him with the crime. Scott C. J remarked (pp. 469,470):-
If the confession [of a co-accused] is corroborated by other evidence,... it matters not whether, in proving the case at the trial, the confession precedes the other evidence, or the other evidence precedes the confession... As regards the confessions of accused the Indian Law has no counterpart in England, bat it seems to me that for the purpose of admissibility such confessions stand on the same footing as accomplice evidence and that their weight must depend on the circumstances of each case.
On this point Scott G.J. differed from a dictum of Macleod J. in Emperor v. Gangappa Kardeppa I.L.R(1913) . 38 Bom. 156 where Macleod J. had expressed the opinion that a confession of a co-accused would stand on a different footing to the testimony of an accomplice, and that the Indian Evidence Act treats it as having a higher probative value than similar evidence would have according to the English law. According to the later ruling there is no difference between the law in England and the law in India on this point except with regard to the corroboration of accomplice evidence. Both decisions agree that the confession of one co-accused could not be said to be corroborated by the confession of other co-accused. In Emperor v. Gangappa Kardeppa the Court observed that there was nothing in Section 30 of the Indian Evidence Act of 1872 which prevented a Court from convicting after taking the confession of the co-acoused into consideration; but the High Courts in India had laid down a rule of practice which had all the reverence of law, that a conviction founded solely on the confession of the co-accused could not be sustained.
11. [His Lordship then considered how far the confessions of accused Nos. 9 and 10 were corroborated in material particulars in so far as they affected the other accused, and continued :] Considering the evidence as a whole against the accused in this group there is room, in my opinion, for a reasonable doubt in their favour. All the assessors are agreed that these accused are not guilty. I would, therefore, give them the benefit of the doubt, reverse their convictions and sentences, and acquit and discharge them.
12. With regard to the sentence on accused Nos. 1 to 10 and 22, the learned Judge has sentenced accused Nos. 2, 3, 4, 5, 6, 7 and 22 to transportation for life. The sentence would be justified on the ground that two persons were murdered in the course of the gang's operations, Under Section 396 of the Indian Penal Code a larger discretion is vested in us with regard to the sentence than would be the case if the offence charged were under Section 302. When a gang of forty or fifty persons took part in the dacoity it is difficult to ascertain which one out of them inflicted the fatal injuries on the deceased. A stick stained with human blood and a dhoti similarly stained were recovered respectively from the houses of accused Nos. 7 and 22. It is certain, therefore, that they were among those who took an active part in the beating of Mandeppa and Yemanurappa which caused their deaths. The sentence of transportation for life in the case of these two accused should, in my opinion, be confirmed With regard to accused Nos. 2, 3, 4, 5, and 6 it is satisfactorily established that they were among those who beat the deceased Mandeppa, but as no blood stains have been discovered on their clothes or other possessions I am inclined to treat their case more leniently than the case of accused Nos. 7 and 22. I would reduce their sentences from transportation for life to rigorous imprisonment for ten years each.
13. The sentences on accused Nos. 1 and 8, in my opinion, are not excessive and should be confirmed. The sentences on accused Nos. 9 and 10 should in my opinion be reduced in each case to three years' rigorous imprisonment.
14. In this cage accused Nos. 1 to 19, 21 and 22 were tried on a charge of having conjointly committed dacoity early in the morning on December 12, 1927, and murdered Yamnurappa and Mandappa in the course of the dacoity and thus committed offences punishable under Section 396, Indian Penal Code, or in the alternative under 89. 402 and 399, Indian Penal Code; and accused No. 20 was tried on a charge under Section 396 read with Section 114, or in the alternative under Sections 399 and 402, Indian Penal Code. [His Lordship after setting out the facts of the case dealt at length with the case of accused Nos. 1 to 8 and 22.] I think, therefore, that the convictions of accused Nos. 1 to 8 and 22 are correct.
15. As regards accused Nos. 9 and 10, their convictions depend on their confessions, Exs. 97 and 100, made on December 24, 1027. It appears that the Magistrate did not follow the High Court Circulars and did not comply with the requirements of 88. 164 and 364 of the Criminal Procedure Code when recording the confessions of accused Nos. 9 and 10. The Magistrate was examined as a witness, Exhibit 126. He proves that accused Nos. 9 and 10 were brought to him on the 21st and he examined the bodies of both the accused and found no marks of violence and transferred them to the Magisterial custody. He is corroborated by the remark on Exhibit 127, the yadi sent by the Sub-Inspector of Police, that the accused had no injuries and that the warrant was sent to the jailor. On the 22nd the Magistrate received the yadi from the Sub-Inspector of Police, Exhibit 71, intimating that accused Nos. 9 and 10 wished to make confessions. It is urged that the serial numbers on Exhibits 71 and 127 do not coincide with the dates, and that the guard on duty on the Magisterial lock up is appointed by the Sub-Inspector. It is, therefore, suggested that the accused were either tutored or forced to make a confession. It appears, however, from the evidence of the Magistrate that when he examined the bodies of the accused he found no marks of violence and they stated that they were willing to confess. On December 23, he sent for the accused and gave them time for reflection and their confessions were recorded on the 24th, When they were again brought for confession, they were asked whether any inducement was given by any police officer, and they said that no inducement was given by any police officer and that they were going to make the confessions of their own free will. No marks of violence on the body were found on the day when the confessions were recorded. The learned Magistrate is an experienced Magistrate and swears that he satisfied himself that the accused were going to make voluntary confessions before he recorded them. The Magistrate asked his clerk to fill up column No. 5 of the confessions but the karkun omitted to record the details. The Magistrate was under a wrong impression that every question and answer need not have been recorded in full. The Magistrate was examined before the Sessions Court. The Magistrate has recorded the necessary certificate at the end of the confessions, and though questions and answers necessary to satisfy the Magistrate that the confession was voluntary and was not induced either by torture, threat or inducement, were not reduced into writing, the Magistrate when examined before the Court has proved that be asked those questions and was satisfied that the confessions were voluntary and both the accused duly made the statements recorded in the confessions, It is urged that the failure of the Magistrate to reduce into writing the questions and answers on this point amounts to an infraction of the law and not to an omission and cannot be cured under Section 533 of the Criminal Procedure Code. It is further argued that the statements themselves are inadmissible in evidence and the Magistrate has not proved the statements made by the accused. It appears clear from the evidence of the Magistrate that the accused duly made the statements recorded. He swore when he saw the forms that whatever was written on them was correctly written. He has, therefore, proved that the accused made the statement recorded in the confessions, Exhibits 97 and 100. Section 633 of the Criminal Procedure Code, according to the decisions of this Court, cures not only omissions but also infractions of the law. In Queen-Empress v. Visram Babaji I.L.R(1896) . 21 Bom. 495 the statements were in the forms prescribed by Section 364 except that the question was recorded in English and not in Maratbi which was the language in which the accused was examined, and it was held that such statement or confession though not taken in the proper form was admissible in evidence against the accused. In Queen-Empress v. Raghu I.L.R(1898) . 23 Bom. 221 it was held that Section 538 of the Criminal Procedure Code applies to omissions to comply with the law as well as to infractions of the law. To the same effect is the decision in the case of Emperor v. Fernand (1902) 4 Bom. L.R. 785. It is urged that the record of the confession is not admissible owing to the failure to comply with the law and that parol evidence may be given of the terms of the confession, and those terms, if and when proved, may be admitted and used as evidence in the ease but that the record of the confession was not admissible. Parol evidence of the terms of the confession would be admissible under Section 533 when the Magistrate is examined and proves the statement orally, but it is unnecessary to prove orally all the statements made by the accused when the record though formally incomplete is a true and full account of the confession. According to the evidence of the Magistrate, the statements made in the confessions were duly made by the accused and his evidence supplies the defect of recording questions and answers which would lead to an inference that the Magistrate was satisfied that the confessions were voluntary. Further it appears that the term 'such statement' in Section 533 refers to the statement recorded regarding which the Magistrate gives evidence under Section 533 that such person duly made it. The evidence of the written confession can be given by the Magistrate under Section 533 if the record is proved to be an accurate and true statement made by the accused. It would follow that the statements recorded can be acted upon as statements duly made by accused to the Magistrate. In Ramai Ho v. King-Emperor I.L.R(1924) . Pay. 872 it was held by the Patna High Court that where the record of a confession did not show that the accused been warned by the Magistrate or that the accused had been asked whether he made the statement voluntarily and the Magistrate was examined and proved that he had cautioned the accused and explained to the accused that he was not bound to make a statement and if he did so it might be used against him, the confession as recorded was admissible. In Emperor v. Deo Dat I.L.R(1922) . All. 166 it was held that the examination of the Magistrate under Section 533 that he was satisfied that the accused had not been tutored cured the defect in the recorded confession although the questions and answers were not taken down in writing. It is not shown that the error of the Magistrate has injured the accused as to his defence on the merits, I think, therefore, that the confessions, Exhibits 97 and 100, are admissible in evidence against accused Nos. 9 and 10.
16. It is further urged that the confessions being retracted cannot be acted upon unless corroborated by other evidence in the case. It was held in Queen-Empress v. Gharya I.L.R(1894). 19 Bom. 728 that a retracted confession, if proved to be voluntarily made, can be acted upon along with the other evidence in the case, and that there is no rule of law that a retracted confession must be supported by independent reliable evidence corroborating it in material particulars. The use to be made of such a confession is a matter of prudence rather than of law. In Qibeen-Empresa v. Gangia I.L.R.(1898) 23 Bom. 316 it was held that there is no rule of law that a retracted confession cannot be treated as evidence unless it is corroborated in material particulars by independent reliable evidence. In Queen-Empress v. Basvanta (1900) I.L.R. 25 Bom. 168 it was held dissenting from the view in Queen-Empress v. Balya Dagdu (1898) Unrep. Cr. C. 952 that a mere subsequent retraction of a confession is not enough in all cases to make it appear to have been unlawfully induced and that a retracted confession could be made the basis of a conviction. When a confession is retracted, it is the duty of the Court especially in a case of murder to inquire into all the material points and surrounding circumstances and satisfy itself that the confessions cannot but be true: see King-Emperor v. Durgaya (1901) 3 Bom. L.R. 441 . The only question in this case is whether the confessions, Exhs. 97 and 100, are true and can be acted upon...The two assessors and the learned Sessions Judge have believed the confessions, and I think the convictions of accused Nos. 9 and 10 are correct.
17. With regard to accused Nos. 12 to 14, 16 and 18, the only evidence against them is the confession of accused No. 9 who implicates accused Nos. 12 to 14, 16 and 18 and the confession of accused No. 10 who implicates accused No. 18, There is further the evidence of Hanma. The confession of a co-accused cannot be made the basis of conviction unless it is corroborated in material particulars by the other independent evidence proving the identity of the accused, and the confessions of one co-accused cannot be said to be corroborated by the confession of another co-accused. See Emperor v. Gargappa Kardeppa I.L.R(1913) . 38 Bom. 156 and Emperor v. Sabitkhan : AIR1919Bom104 . These accused have been convicted under Section 396', and the evidence of Hanma, even if believed, would show that they were present at the temple. Their presence at the scene of offence is not proved by any other reliable evidence. Their conviction, therefore, under Section 396 cannot be sustained. The evidence of Hanma cannot be relied upon implicitly... I do not think that the evidence of Hanma can be considered sufficient corroboration of the confessions of the co-accused Nos. 9 and 10 for the purpose of convicting accused Nos. 12 to 14, 15, 16 and 18. I would, therefore, set aside their convictions and order them to be acquitted and discharged [The rest of the judgment is not material to this report.]
18. Per Curiam. We allow the appeals of accused Nos. 12, 13, 14, 16, 17, 18, and 20, reverse their convictions and sentences, acquit and discharge them, and order that they be set at liberty. We confirm the convictions and sentences of accused Nos. 1, 7, 8 and 22 and dismiss their appeals.
19. We confirm the convictions of accused Nos. 2, 3, 4, 5, 6, 9 and 10 but reduce the sentences of accused Nos. 2, 3, 4, 5 and 6 from transportation for life to rigorous imprisonment for ten years each, and the sentences of accused Nos. 9 and 10 from five years' rigorous imprisonment to three years' rigorous imprisonment each.