B.J. Wadia J.
1. This is; a case in which the two accused are charged with having committed the offence of murder under Section 302 of the Indian Penal Code and also with having voluntarily caused hurt in committing robbery under Section 394 of the Indian Penal Code.
2. A preliminary question has arisen at the commencement of this trial with regard to the admissibility of a statement made by accused No. 2 before the Coroner of Bombay at the end of the inquest proceedings on February 9, 1940.
3. It is laid down in Section 26 of the Indian Evidence Act that no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Under Section 19(3) of the Coroners Act, Act IV of 1871 as amended by the Bombay Act, Act XIII of 1930, it is provided that, for the purpose of Section 26 of the Indian Evidence Act, 1872, a Coroner shall be deemed to be a Magistrate. The object of Section 26 seems to be that the presence of the Coroner who is in the same position as a Magistrate tends to secure the free and voluntary nature of any statement or confession which a person seeks to make before him, and also gives the confessing person an opportunity to make that statement uncontrolled by any fear of the police before he seeks to make it. It is further provided by Section 19(2) of the Coroners Act that if the person himself wishes to make a statement, it shall be the duty of the Coroner to warn him that he is not bound to make any statement, but if such person persists, the Coroner shall, without administering to him any oath, record his statement in full after duly warning him that any incriminating statement which he may make may be used in evidence ins any subsequent trial or other proceeding under the Code of Criminal Procedure, 1898. The learned Coroner, Rao Bahadur B. N. Athavale, before recording the statement warned accused No. 2, who was suspect No. 2 before him, at the time, that he was not bound to make any statement to the Coroner, but that if he insisted on the Coroner recording his statement, the Coroner would have to record it. The Coroner further stated that it was his duty to warn No. 2 that if he said anything likely to incriminate him the same would be used against him in another Court. No. 2 answered that he understood what the Coroner said, but that he wanted the Coroner to record what he wished to state. The Coroner has been examined before me on behalf of the prosecution, and he stated that besides warning No. 2 he took the extra precaution of asking all the police-officers to withdraw from his Court during the time No. 2 made his statement. The Coroner has also stated, in answer to the Court, that No. 2 spoke in Hindi or Hindustani, but that he understood what was said, and he took down the statement in English. He further stated that he did not notice that No. 2 was speaking under any compulsion or pressure; that No. 2 did not fumble at all; and that if No. 2 had fumbled whilst making the statement, he would have at once stopped him. He added at the end that the impression left on his mind was that the statement made by No. 2 was freely and voluntarily made from beginning to end, and that he was perfectly sure of it.
4. Certain objections have been taken by counsel as to the admissibility of this confession in evidence. It was pointed out that the confession was neither free nor voluntary, but that it was made in the hope or promise held out to No. 2 by Superintendent Dyer and Sub-Inspector Quereishi that if No. 2 made such a statement he would be pardoned, and that his evidence would be made use of in this trial as an approver on behalf of the Crown. It is provided by Section 24 of the Indian Evidence Act that a confession by an accused person is irrelevant if it is caused by any inducement, threat or promise which refers to the charge against the accused, proceeding from a person in authority, and sufficient in the opinion of the Court to give the accused person reasonable grounds for supposing that by making the confession he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The words ' accused person ' in Section s 24 and 26 include any person who subsequently becomes accused. Counsel for No. 2 particularly relied on The Queen v. Thompson  2 Q. B. 12, 17 in which the learned Judges of the Court of Crown Cases Reserved held that in order that the evidence of a confession by a person might be admissible, it must be affirmatively proved that such confession was free and voluntary, that is, was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or was not made until after such inducement had clearly been removed. This case is an illustration of the long established rule of English criminal law that no statement by a prisoner is admissible in evidence against him unless it is proved by the prosecution to have been a free and voluntary statement, in the sense; that it has not been obtained from him either by fear of prejudice or by hope or advantage exercised or held out by a person in authority. The learned Judges held in that case that the prosecution were bound to satisfy the Court affirmatively that the confession which they sought to use against the prisoner was not obtained from him by improper means. This case has been commented upon by our Appeal Court in Queen-Empress v. Basvanta (1900) I.L.R. 25 Bom. 168 which is binding upon me. Mr. Justice Fulton, at. pages 171-172, observed that in India the Courts were governed by the provisions of Section 24 of the Indian Evidence Act, and that on a fair construction of that Section, according to its language, it seemed to the Court impossible to contend that the law in India was identical with the law in England as explained im The Queen v. Thompson  2 Q. B. 12. The learned Judge pointed out the difference arising from the words 'if it appears' in Section 24 which are not as strong an expression as 'proved', and said that even if a Court might perhaps in a particular case fairly hesitate to say that it was proved that the confession had been unlawfully obtained, the Court yet might be in a position to say that such appeared to have been the case. The learned Judge also went on to observe that even if a confession might be rejected on well-grounded conjecture, then: must be something before the Court on which such conjecture could rest, but that to require as the criterion of admissibility affirmative proof that a duly recorded and certified confession was free and voluntary could not be consistent with the provisions of Section s 21 and 24 of the Indian Evidence Act. See also Nayeb Shahana v. Emperor 1934 I.L.R. 61 CaL 399 Further, it has been held by Mr. Justice Mirza in Emperor v. Rama Kariyappa : (1929)31BOMLR565 . that a confession, in order to be relied on, need not make a clean breast of all the details in connection with the crime, but if the Court was satisfied that it had been voluntarily made, it might take into consideration such parts of it as it might by itself or in the light of the other evidence in the case consider to be true. All parts of a confession are not entitled to equal weight. It is nevertheless the duty of every Court to enquire very carefully into all the circumstances which led to the making of the confession, and I agree with counsel for the accused that the length of time during which an accused person is in police custody1 before he makes1 his confession is an important element for the consideration of the Court in reference to the admissibility of the confession. There can, however, be no hard and fast rule in this particular matter, and the admissibility of each confession must be decided on all the facts and surrounding circumstances and also from the intrinsic value of the confession itself.
5. I have already said that it is alleged by counsel for accused No. 2 that he was induced to make his statement by the hope or promise held out to him, which I have referred to before. No. 2 in his statement to me only said that he was promised to be let off if he made it he did not mention his being made an approver. Two police-officers were examined by the prosecution before me, although strictly speaking, according to the judgment of the Appeal Court which I have referred to before, it was not necessary for the prosecu-tion affirmatively to prove that the confession was freely and voluntarily made. Both these officers were also cross-examined on behalf of accused No. 2, and they both denied having ever made such a promise or held out such a hope. If such a promise or hope was held out by responsible police-officers to the accused, I have no hesitation in saying that it would be not only improper but dishonourable on their part not to have carried out the promise, unless there was any special consideration which made them hesitate. I have no evidence to the contrary on behalf of the accused, and I see no reason why I should disbelieve the testimony of two responsible police-officers, one of whom occupies a high position in the police force, that no such hope or promise was held out nor given. It is true that before the statement was made accused No. 2 had been in custody for nearly fifty days, and the fact and duration of police custody of a confessing accused has, as pointed out by Jenkins C.J. in Jogjibam, Santosh and Surendra v. TheKing-Emperor (1909) 13 C. W. N. 861 a material bearing on the question whether the confession is voluntary or not. (See also Queen-Empress v. Naraym (1901) I.L.R. 25 Bom. 543 The length of time during which he was in custody is certainly an element to be taken into consideration before accepting the testimony of the police witnesses. It may be here mentioned that the length of time was in one respect at least due to the difficulty in tracing the witnesses and completing the investigation. It is also necessary, in order to determine the admissibility of the confession to read the confession itself as a whole. No doubt, it is a long statement. But on carefully considering it, I do not think that a statement of this nature would have been asked for or expected as a return for the alleged hope or promise. Originally, three persons were put under arrest, namely, the two accused and one Baboo Cheena. Baboo Cheena was released by the police as no evidence was found against him, and yet in this statement made by No. 2 the major portion of it seems to deal more with the alleged guilt of Baboo Cheena than of Nos. 1 and 2. It is on that statement that Baboo Cheena was re-arrested and put up before the Magistrate, but the Magistrate could find no evidence against him. I cannot hold that this statement is the outcome, directly or indirectly, of the alleged hope or promise. In passing, I would refer to Section 28 of the Indian Evidence Act, which says that if such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully rempved, it is relevant. I need not deal with this Section beyond citing it, because holding as I do that no such promise was held out, the question does not arise whether the impression created by it had been removed before the confession was made.
6. I will now deal with Section 30 of the Indian Evidence Act. This is a confession which affects not only the person making it but the person who is jointly tried with him, namely accused No. 1, for the same offence. Offence is defined in the Explanation to that Section as including abetment of or attempt to commit the offence. What is necessary for the purpose of this Section is that the maker of the confession and the other accused must be tried jointly for the same offence, and the confession must be legally proved. It is further necessary that the admission or confession implicates the maker to the same extent as it implicates the co-accused. The confession must implicate the confessing person substantially to the same extent, as it implicates the person against whom it is to be used, in the commission of the offence for which they are both being jointly tried. In other words it must be shown that the confessing accused has tarred himself with the same brush with which he seeks to tar his co-accused. Reading this confession as a whole, it reads as if both the accused before me were guilty of abetment of a crime by Baboo Cheena. Baboo Cheena is not one of the accused before me, and the confession therefore is relevant under Section 30 as being used in the course of the trial of the two accused for the same offence.
7. This confession was retracted before the committing Magistrate. It has also been retracted in this Court. The mere subsequent retraction of a confession, though no doubt it is to be carefully considered by the Court, is not by itself, if duly recorded, sufficient to make it appear not to have been freely and voluntarily made. The rules regarding confessions which are retracted are spread over a large number of decided cases. The rules are (1) that a confession is not to be regarded as involuntary merely because it is retracted; (2) as against the maker of the confession, the retracted confession may form the basis of a conviction if it is believed to be true and voluntarily made (3) as against the co-accused, both prudence and caution require the Court not to rely on a retracted confession without independent and full corroborative evidence. The corroboration should not only confirm the general story of the alleged crime, but must also connect the co-accused with it. The words of Section 30 are that a confession against a co-accused may be taken by the Court into consideration. These words show that even if it be not illegal to convict an accused person on the confession of a co-accused, prudence and caution, more especially in cases tried by a Judge with the help of a jury, require that the confession or statement is fully and strongly corroborated. There is, however, no rule of law requiring a retracted confession to be supported by corroborative evidence in material particulars. The use to be made of such a confession is more a matter of prudence than of law.
8. Taking all these facts and circumstances into consideration, I hold that this confession made by No. 2 is admissible in evidence, subject to its being proved before the jury, as they form the Court, along with me, and they alone are the judges of fact, and subject also to what I have stated before, namely, that such a confession is fully corroborated by other independent evidence.
[The trial proceeded. Both the accused were found guilty of aiding and abetting each other in the commission of the offence of murder under Section s 302-114, Indian Penal Code. Accused No. 1 was sentenced to death. Accused No. 2 was sentenced to transportation for life.]