Leonard Stone, Kt., C.J.
1. We have before us the appeals of ten persons alleged to be concerned in a dacoity which took place at a house near Dharwar on the night of May 6, 1943. All the ten accused were arrested on and between June 18 and 20, 1943. The investigating police-officer sent all the ten accused, together with some other persons who had been arrested, to the Magistrate where they were detained in Magisterial custody, in each case requesting the Magistrate to record a confession. In a letter written by the investigating officer to the Magistrate, Mr. Sankolli, which is dated June 21, 1943, it is stated as follows:
They (i.e. the ten accused) have been sent herewith for your custody and seven days remand. As they are willing to make a confessional statement, hence their statement may kindly be recorded under Section 164 of the Criminal Procedure Code.
2. In fact no statement was taken from any of the, accused before us until July 14, 1943, when accused No. 8 made his alleged confession. This was followed by the alleged confessions of accused Nos. 6 and 10 who made their statements before the Magistrate on July 24. These three alleged confessions were made to Mr. Sankolli, the First Class Magistrate at Dharwar. Pausing there for a moment, it might well be said why this delay of three weeks in the first case and a. month and more in the other two cases, if these three accused, who are represented as going willingly to make confessions to the Magistrate, in fact were willing so to do. Search for an explanation reveals that on July 1, 1943, one Bhimappa was arrested as being concerned in this dacoity. On July 2 he was sent to the same Magistrate, Mr. Sankolli, with the letter of that date. That letter, if it be worthy of that name, is written in pencil on a flimsy piece of paper. On July 3, with unexplained and unexampled haste, contrasting strangely with the fact that the ten other accused had by then been waiting for more than a fortnight to make their confessions alleged by the prosecution to be voluntary, the confession of Bhimappa was recorded by the Magistrate. The nature of this confession is not without significance. 'The accused (so the confession records) is asked if he is disposed to make a confession of his own free will. He replies as follows:-'I have come here to make a confession of my own free will.' He states in the confession that he was arrested on July 1, that is to say two days previously. Asked what he had to say he replied:
About seven months back I came to Dharwar for earning my bread and since then I am at Dharwar.
He then goes on to explain how he was approached by certain persons and how on the evening of this dacoity he went to Basrikop, there met a number of other persons and they sat under a mango tree. His alleged confession continues as follows:
There we prepared four torches and prepared six or seven sticks and we then proceeded to Belligatti. As soon as we reached near Belligatti we took some stones in our kambal and langoties. We then entered the village Belligatti where Jodhalli people showed the house saying that it was the house. We lighted the torches by standing in front of the said house. Myself, Govindappa, Ramchandra and Fakirappa Gorabal had each held one torch. Then we shouted loudly and threw stones here and there so that the people in the neighbourhood should not get up. Thereupon (and he gives the names of a number of the accused) and myself entered the house. Bhimapa Pyati broke down the lock with the axe put to the wooden box in the house.
3. He then goes on to describe what they found in the house and describes how they carried it away.
4. Now although that confession was recorded by Mr. Sankolli, the First Class Magistrate, Bhimappa was not apparently asked to put his thumb impression to it, at any rate it bears no such mark. Nor did the Magistrate sign the English version. The dates are very material. It would be recollected that the first of the ten accused to-make a confession was on July 14. Is it to be inferred that the confessions of accused Nos. 6, 8 and 10 were obtained by their being shown or read the confession of Bhimappa and in effect told that the story was out and that it was no use resisting any longer? It is fair to Mr. Sankolli to say that there is no evidence as to this at all., But an unwholesome suspicion is left on the mind that the confessions of accused Nos. 6, 8 and 10 were not obtained with that degree of fairplay and detached independence which it is the duty of Magistrates to uphold in these cases. Mr. Sankolli was called to give evidence in the Sessions Court to explain the absence of the thumb mark and the failure to sign the English version of Bhimappa's confession. His evidence about the taking of the four confessions (that is to say Bhimappa's who was then known as accused No. 1 and the confessions of accused No. 6, 8 and 10) is as follows:
I was First Class Magistrate Dharwar Taluka in 1943. I was requested by the Sub-Inspector Mugad Police Station to record the confessions of the accused in this case. I received four Yadis to that effect dated 21-6-43, 14-6-43, 16-6-43 and 19-6-43. I have recorded the confession of four accused out of these namely accused 1, 6, 8 and 10. These were recorded by me and taken down by my clerk also in my presence and they were correctly recorded as stated by the accused and they were read over after they were recorded and when admitted signatures were taken. I gave them warning as required by law and sufficient time for reflection. After confession of accused No. 1, my clerk did not take the thumb mark of accused No. 1 through oversight and I forgot to sign the English version. I signed the Kannad version. In confessions of accused Nos. 1, 6 and 10 the word Sub-Inspector or Head Constable has not been scored by me through oversight both in Kannad and English of accused 1 and 6 and only in Kannad for accused 10 due to oversight. The accused were brought to me from my own custody and were sent back by me to my own custody.
5. Under cross-examination by the pleader who was appearing for accused No. 1 the Magistrate said this:
I had asked questions about illtreatment by the police. I always ask a question as to whether the accused is willing to make a confession when an accused is sent to me by the police for making a confession.
6. Under cross-examination by the pleader of accused No. 6 he gave the following answer:
Accused 6 was sent to me with yadi Ex. 61 dated 19-6-43. I do not ask the accused when he is produced before me whether he is willing to make a confession or not. I told him that he was sent for making confession by the police and that he was not bound to make a confession and it was his sweet choice to make one or not ; so he should think about it and take his time and then I would record the confession. Except confession there is nothing else to show that those questions ; were asked by me when the accused was produced before me for the first time. I would record the question if the accused was found willing if I was satisfied that the time that I had given was sufficient and that I had sufficient time to record the confession.
7. These two answers of the Magistrate to the pleaders of accused Nos. 1 and 6 are quite irreconcilable. As there is no corroborative evidence at all against accused Nos. 6, 8 and 10 and having regard to the circumstances in which these alleged confessions were taken, I am not prepared to place any reliance at all on any of these confessions taken by Mr. Sankolli as being voluntarily made within the meaning of Section 164 of the Criminal Procedure Code. I call attention to the following passage in the Government Resolution, Judicial Department, No. 1333 of February 27, 1886, as modified by No. 3832 dated June 13, 1902, which is reprinted for the information and guidance of all criminal Courts in the High Court's 'Circular Orders' at p. 4 under letter (j);
The Magistrate should question the accused with the view of ascertaining the exact circumstances in which his confession was made and the connection of the police with it. It should be the endeavour of the Court to record the confession in as much detail as possible with a view of affording material from which its genuineness can be judged, and of testing whether it is freely made or is the outcome of suggestion.
8. That direction was not followed by Mr, Sankolli in the case of the confessions of either accused Nos. 6, 8 or 10.
9. The position with regard to the alleged confessions of the other accused, that is to say accused Nos. 9, 11, 13, 14, 15 and 16 is even more reprehensible. Their confessions were taken by the Second Class Magistrate Mr. Betkerur, the earliest in date being that of accused No. 13 which was recorded on July 26. He had reached Magisterial custody on June 21 previous, so that his alleged confession was recorded on the thirty-sixth day of his confinement, while on June 23 the Police Sub-Inspector of Mugad, who was the investigating officer, wrote to Mr. Betkerur the Magistrate as follows:
The report of the Sub-Inspector of Police Mugad Thana dated 23-7-43 is as follows:
It is requested that statements of the accused mentioned below be recorded under Section 164, Criminal Procedure Code.
And then are set out the names of three accused, the first name being accused No. 11 and the second name being accused No. 13, the third accused being not before us.
The abovesaid accused have been produced before the First Class Magistrate, Dharwar Taluka, on 21-6-43 before 2 p.m. Sd. P.S.I.II Mugad.
10. Accused No. 13 in fact made his alleged confession on July 26 and accused No. 11 made his alleged confession on July 28. Similar letters were also written by the Sub-Inspector to Mr. Betkerur on July 24 with regard to accused No. 9 who is alleged to have confessed on July 29, another letter on July 26 with regard to accused No. 14 who is alleged to have confessed on July 31, a further letter on August 3 with regard to accused Nos. 5 and 16 who are alleged to have confessed on August 5 and 6 respectively and yet a further letter on August 7 with regard to accused No. 15 who is alleged to have confessed on August 12, that is to say on the 53rd day of his Magisterial custody. No explanation is forthcoming as to how it happened that accused persons sent to Magisterial custody in order to make voluntary confessions can remain in that custody for periods ranging up to 52 days without any confessions being made, and the natural inference to be drawn is that the circumstances in which the confessions were ultimately made were not such that any credence ought to be given to the confessions as being of a voluntary character.
11. In the case of Mr. Betkerur the position however does not rest there. Accused No. 4, whose confession was taken by Mr. Betkerur, was acquitted by the learned Sessions Judge on the ground that his confessions had been extracted through harassing the father of the accused. This is what the learned Judge says with regard to the confession of accused No. 4 in his judgment:
The case of accused No. 4, however, stands on a different footing. According to this accused he made this confession because his father told him that he was considerably harassed by the police and that his father asked him to make a confession in order to free him from the police harassment. There is evidence in this case to show that the father of accused No. 4 was brought by the police from his village and detained at Dharwar from the 64th of June up to August 4, 1943, There is the evidence of the Police Patil (Ex. 40) who stated that this Gurushantgouda, the father of accused No. 4, was taken by the police along with the other persons of the village to Dharwar and that ten days later when he came to Dharwar he found Gurushantgouda still in the Police club. There is also the admission of this witness-the Police Patil-to the effect that subsequently he found from the wife of Gurushantgouda that Gurushantgouda had not returned. This witness also states that he had gone to Gurushantgouda when he returned from Dharwar and when he learnt that Gurushantgouda was ill and that thereafter Gurushantgouda did not leave his bed and died shortly after. There is the evidence of the senior Sub-Inspector that this Gurushantgouda was there with the junior Sub-Inspector on June 23, 1943, when his statement Under Section 164, Criminal Procedure Code, was recorded at Dharwar. It is not improbable that the Police would tackle Gurushantgouda because he had produced two Ling Boxes, in order to get something like definite evidence for the case either against Gurushantgouda or against his son accused No. 4. With this evidence and the clear statement of accused No. 4 that he made the confession at the instance of his father whose misery he could not see, I am inclined to think that the confession of accused No. 4 might not have been quite voluntary.
As to the recording of that confession Mr. Betkerur himself said this in cross-examination before the Sessions Judge:
There were a number of persons in my office when I recorded that confession. I tried to ascertain whether there were any policemen from Mugad police station in my office at that time in plain clothes. I asked myself if there was any policeman in the office. I have stated that I had sent out one Balkrishna Ramchandra No. 296. I do not know if he is a policeman of Mugad station. I did not try to ascertain if he was armed or unarmed police. I sent him out as he had come with the accused. I did not ascertain before recording confession if he was previously produced before any other Magistrate for his confession. I did not ascertain before recording confession if the accused had shown his willingness or other-wise before any other Magistrate. I tried to ascertain from accused as to how many days he was in magisterial custody and how many days in Police custody.
12. It is to be noted in examining the vernacular in original of the alleged confession of accused No. 4 that as in the case of all these confessions they are made on printed forms resulting in the all important portion at the commencement which deals with the voluntary nature of the confession being reduced to a mere formality, so much so that in the record before us no one has troubled to translate it into English. In my opinion it is very undesirable that confessions should be made on any printed form and that the Magistrate should not be made to express in his own words exactly why he considers that the confession is being made voluntarily. The case of accused No. 4 discloses a most deplorable state of affairs, a state of affairs in which the confidence of Judges, juries and the public may well be shaken in the value of these confessions. For the fair and proper administration of justice it is essential that Magistrates should remember that it is their bounden duty to be completely and judicially independent and that they should fully satisfy themselves in each case that the confessions which they record are in the fullest sense of the word made voluntarily. It is in my opinion not possible to record such a confession in the atmosphere of a room in which according to Mr. Betkerur there were a number of other persons. I place not the slightest reliance on any of the alleged confessions in this case as being voluntarily made within the meaning of Sections 164 and 364 of the Criminal Procedure Code read with Section 24 of the Indian Evidence Act. The appeal of all the accused is allowed on this ground. Accused No. 14 is also charged under Sections 13 and 19(e) of the Indian Arms Act which provides that no person shall carry any arm without a license. ' Arms ' are defined by Section 4 of that Act as including firearms, and what is alleged against accused No. 4 is that he was present at this dacoity with a pistol. There is no evidence at all against accused No. 14 with regard to the pistol except what is contained in his own confession which, as I have already stated, I reject. In the result all the accused succeed in their appeal and are acquitted. They are to be released immediately. They have been in custody for nearly two years for an alleged offence for which they cannot be proved guilty. The learned Assistant Government Pleader, does not know in which jail or jails the accused now are. This is a most unsatisfactory state of affairs and in all future cases this Court will expect that the Crown's representative will know in whose custody the accused are. In this case the Assistant Government Pleader must take immediate steps to ascertain where the accused are now confined and he will report to this Court on Monday April 2 at the sitting of the Court with regard to: the whereabouts of all the accused.
13. In conclusion I desire to thank the two advocates Mr. Athavale and Mr. Belvi who have appeared for the accused for giving their service to the Court and in the interests of the due administration of justice.
14. I agree. In these appeals sixteen persons were tried for taking part in a dacoity committed in the village Belligatti near Dharwar Taluka on May 6, 1943. Of the sixteen accused four were acquitted and the others were convicted and have appealed to this Court against their convictions and the sentences passed on them. The appeals of accused Nos. 2 and 7 were summarily dismissed and the remaining ten accused are now before us. They were tried with the aid of four assessors and three of them were of opinion that none of the accused was guilty. But the learned Sessions Judge convicted the ten accused before us under Sections 395 and 457 of the Indian Penal Code and sentenced them to rigorous imprisonment for two years under Section 395 and to rigorous imprisonment for six months under Section 457, the sentences to run concurrently. Accused No. 14, who was further charged with being in possession of a pistol, was convicted under Section 19(e) of the Indian Arms Act and sentenced to rigorous imprisonment for one month. This sentence he was ordered to suffer consecutively with the other sentences passed on him.
15. There is no doubt that on the night of May 6, 1943, about twenty-three or twenty-four dacoits entered the village Belligatti, and going to the verandah of Dyamappa's house they beat Dyamappa and Somayya who were sleeping on the verandah and also injured Satyavva, the mother of Dyamappa. They then carried away property including cash, currency notes, clothes and ornaments. Information was given to the police but no clue was found until some of the accused were arrested in connection with another offence committed in Ramdurg State on June 13, 1943. Thereafter the second Sub-Inspector in charge of Mugad Police Station took up the investigation and arrested accused Nos. 5 and 6 on June 18, 1943, and sent them to the First Class Magistrate, Dharwar, with a request that their confessions should be recorded. On June 20, 1943, he arrested the remaining eight accused before us and sent them to the same Magistrate with a similar request on the next day. But in fact no confessions were recorded immediately or within a few days thereafter. Subsequently separate letters were written from time to time to the Second Class Magistrate by the second Sub-Inspector requesting him to record their confessions. The confessions of accused Nos. 6, 8 and 10 were recorded by Mr. Sankolli, the First Class Magistrate, and the confessions of the remaining accused were recorded by the Second Class Magistrate, Mr. Betkerur.
16. There is absolutely no evidence to connect any of the ten accused with the dacoity except their confessions. None of them was identified when the dacoity was committed and no stolen property has been traced from any of them. Some attempt was made to suggest that some of the stolen property was found with some of these accused, but that evidence was disbelieved by the learned Sessions Judge and is not pressed in this Court. All the accused retracted their confessions before the committing Magistrate as well as in the Sessions Court, and the case for the prosecution rests almost wholly on those confessions. There is no absolute rule of law that a retracted confession cannot be acted upon unless there is material corroboration, if it is found to be voluntary. But as a rule of prudence it is regarded not safe to base a conviction solely on a retracted confession unless there are circumstances which leave no doubt that it is voluntary and true.
17. In this case we have to consider several circumstances before acting upon such retracted confessions. It is true that the learned Additional Sessions Judge has held that the confessions of all the ten accused before us were made voluntarily. But unfortunately he has not properly taken into consideration the circumstances under which those confessions were made. All the ten accused were sent to the First Class Magistrate for their confessions being recorded, within twenty-four hours after they were arrested. The letters written by the Sub-Inspector indicate that he had requested that their confessions should be recorded as they had expressed their willingness to make confessions. But the learned Magistrate has not given any satisfactory explanation why he did not record their confessions within a reasonable time. The confession of accused No. 1 was the first to be recorded, and it is significant that in his case the learned Magistrate recorded his confession on the very next day after he was presented before him along with the yadi of the Police Sub-Inspector. But in the case of the other accused, further yadis had to be written. The second Sub-Inspector who was in charge of the investigation wrote a yadi to the Second Class Magistrate Mr. Betkerur on July 23, 1943, requesting that the confessions of accused Nos. 11 and 13 should be recorded. Why he thought it necessary to take such an unusual step has not been explained. It is true that Mr. Sankolli, the First Class Magistrate, says that he was very busy and did not find time to record the confessions as requested by the Sub-Inspector and that he made a report to Government and waited until the Second Class Magistrate was invested with power to record confessions. The Second Class Magistrate admits that he was invested with such power on May 27, 1943, that is to say, long before these accused were sent to the First Class Magistrate for confessions. If the First Class Magistrate had no time, he should have asked the Second Class Magistrate to record the confessions of the other accused as he had already been empowered to do so. It is not unusual for the investigating officer to remind the Magistrates to record the confessions of the accused sent by him if their confessions are not recorded. Assuming that the Sub-Inspector thought it proper to send reminders, he should have sent such reminders to the First Class Magistrate to whom he had sent a yadi originally along with the accused. Instead of that he sent a fresh yadi to the Second Class Magistrate with a request that the confessions of the accused should be recorded because they had expressed their willingness to make confessions ; but he sent such yadis by instalments. In the first yadi of July 23, he mentioned the names of only three of the accused, accused Nos. 2, 11 and 13, as the persons whose confessions should be recorded. Their confessions were recorded on July 26 and 28. Then he wrote a yadi on July 24 for the confessions of accused Nos. 9 and 12. Their confessions were recorded on July 29. Then he wrote a yadi on July 26 for the confession of accused No. 14 which was recorded on July 31. He wrote a yadi on August 3, for the confessions of accused Nos. 5, 7 and 16 and they were recorded on August 5 and 6, and lastly, on August 7 he sent a yadi for the confession of accused No. 15 which was recorded on August 12. There is no explanation why such an unusual step was taken by the Sub-Inspector and why he did not request the Magistrate to record the statements of all the accused whose confessions he wanted to have recorded. This circumstance raises a strong suspicion regarding the voluntary nature of the confessions and this suspicion is strengthened by the manner in which the confession of accused No. 4 was recorded by the Magistrate. The learned Additional Sessions Judge has found that the confession of accused No. 4 was not voluntary and he believed the statement of accused No. 4 that he made a false confession as he could not bear the harassment of his father by the police. In the same way some other methods may have been used for inducing the other accused to make confessions and that must be the reason why the Sub-Inspector reported by instalments that their confessions should be recorded. I, therefore, agree that we cannot act on the uncorroborated confessions of such a nature. It is admitted that there is no other evidence to connect all the ten accused with the dacoity.
18. As regards accused No. 14 he is further charged that he was armed with a pistol at the time of the dacoity. For that also there is no evidence except his own confession which has been found to be suspicious and not voluntary. The learned Additional Sessions Judge has referred to the statement of accused No. 6 who produced the pistol and by way of explanation stated that it had been given to him by accused No. 14. Accused No. 6 did not admit that he had any hand in the dacoity, and such a self-exculpatory statement of the co-accused could not be taken into consideration against accused No. 14 under Section 30 of the Indian Evidence Act. The learned Sessions Judge was wrong in treating that statement as a piece of evidence against accused No. 14. If that evidence is discarded, there is nothing else in the record to show that accused No. 14 was armed with a pistol at the time of the dacoity. Hence his conviction under Section 19(e) of the Indian Arms Act also must be set aside.
19. I, therefore, agree with my lord the Chief Justice that the convictions of all the ten appellants and the sentences passed on them should be set aside and they be acquitted and discharged.