1. The appellant in this case was accused No. 2 in case No. 9 of 1982 in the Sessions Court of Satara, and was charged with having committed the murder of the infant child of accused No. 1 on the morning of October 24, 1931, near the Wathar railway station on the Southern Mahratha Railway line, somewhere near the road leading from Wathar to Wai. Accused No. 1 was charged with abetment under Section 109, Indian Penal Code. She was found not guilty, and was acquitted and discharged. The appellant was sentenced to transportation for life with a recommendation for reduction of the sentence.
2. The appellant is the widowed daughter and accused No. 1 is the widowed daughter-in-law of one Govind Ganu, and they were all living in the village of Raranjkhop which is about seven miles from Wathar. The prosecution story is that accused No. 1 conceived through her father-in-law Govind. When her pregnancy had advanced about seven months, she was sent out of the village for delivery accompanied by the appellant and another. Together they first went to Bhuinj which is about fifteen miles from Wathar, where accused No. 1's parents lived. Accused No. 1's parents refused to harbour her, and thereupon the party proceeded to Poona. The same thing happened in Poona, and as no one harboured them in Poona, the party proceeded to Bombay and went to the place of their relative Anandrao. Anandrao also refused to harbour them. They stopped at his place for two or three days, and then they all returned to Poona. From Poona accused No. 1 alone first went to Bombay. She was sent to the Motlibai hospital on September 10, 1931, but was discharged. Later on she was sent again to the hospital, and was delivered of a male child on October 16, 1931. About a day or two after she was delivered, the appellant went to Bombay to meet accused No. 1 and to bring her back to the village. Both accused No. 1 and the appellant returned to Poona and rested at the dharmashala near the Poona station. Then they took the train from Poona, and got down at the Wathar station early morning at about 5 a.m. on October 24. After waiting at the station for some time they proceeded on foot towards the village of Karanjkhop. The prosecution story is that both accused No. 1 and the appellant Bat down on the way to the village, and the appellant took the infant child from the hands of its mother, went at some distance, throttled the child to death, and kept the dead body on an otta near the road, bringing back the red cap which was purchased for the child at Poona. On the evening of the same day Babaji Daji Ramoshi (Exhibit 7) was informed that a corpse was lying somewhere near the road. He in turn informed the Police Patil and took the Police Patil to the spot where the dead body was lying. Thereafter the police investigation commenced, and accused No. 1 and the appellant were arrested on November 12, 1931. They were placed before the First Class Magistrate of Koregaon on November 13, and their confessions were recorded on November 14,1931.
3. Exhibit 42 is the confession of accused No. 1. But as her confession did not suggest any inference that she had committed the crime and was self-exculpatory, the learned Sessions Judge did not rely on it, and giving the benefit of the doubt to accused No. 1 acquitted her. The appellant also made her confession, and it is on the strength of her confession (Exhibit 45), which was subsequently retracted, that she was convicted and sentenced as above. The confession was recorded by the Magistrate who put to her certain questions, but according to the record before us he did not put to her the question which is enjoined by Section 164(3), Criminal Procedure Code. The first question put to her was whether she was beaten by anybody for making the confession, and she answered in the negative. The second question that was put to her was whether she was threatened or induced to make the confession, and she answered again in the negative. The third question that was put to her was whether she was willing to make the confession notwithstanding the fact that it would be used in evidence against her, and she answered in-the affirmative. Section 164(3), however, requires that a Magistrate shall, before recording a confession, explain to the person making it that he is not bound to make a confession, etc. That question was not put to her according to the record, and the Magistrate failed to record the warning, namely, that he had explained to her that she was not bound to make a confession. I may also mention that the warning appears in the certificate appended at the end of the confession, but that certificate was written out by the clerk and was signed by the Magistrate. The section distinctly requires that it is the Magistrate who shall explain to the accused that she was not bound to make a confession, and it also requires that the Magistrate shall make the necessary memorandum. This defect in the confession was sought to be cured by calling the Magistrate in evidence before the learned Sessions Judge. He was examined on March 81, 1932, that is, about four months and a half after the confession had been recorded. He stated in his evidence that he had warned the appellant that she was not bound to make the confession, and that it would be used against her if made. In his cross-examination he stated that he actually put the question that she was not bound to make the confession, but he says that he failed to write it out, and the reason why be says he did not write was, to give his own words, that ' she could not understand the words, ' You are not bound in law to make the confession.' ' He, therefore, used 'simple' words, and told her that she was not bound to make the confession. The question, therefore, that arises for consideration is whether the confession which has been duly recorded satisfies the requirements of the statute and is relevant and can be used against the appellant, irrespective of whether the statements in it are corroborated in all material details and particulars. The evidence of the Magistrate was evidently taken under the provisions of Section 533 of the Code of Criminal Procedure, and that section provides that where any of the provisions of either Section 164 or 364 have not been complied with by the Magistrate recording the statement or confession, the Court shall take evidence that such person duly made the statement, and notwithstanding anything contained in the Indian Evidence Act, Section 91, such statement shall be admitted,
if the error has not injured the accused as to his defence on the merits.
4. The first point to consider is whether the question that the appellant was not bound to make the confession was actually put. The record as it stands clearly shows that the question was not put, and the Magistrate admits that he failed to write it down. The second point is whether that question was implied in the question that was actually put and recorded, viz., 'Are you willing to make the confession notwithstanding the fact that it will be used in evidence against you ?' To the trained mind of an educated person it may be the same thing whether a person is asked if he is willing to make the confession notwithstanding the fact that it will be used in evidence against him, or whether he is told that he is not bound to make the confession. But what we have got to consider is whether that would also be the impression produced on the mind of the appellant. She is an illiterate widow, and we cannot speculate here as to what must have been the impression produced upon her mind. The next point is whether the error has or has not inj ured the appellant as to her defence on the merits. We cannot say definitely whether it has or has not, We will rather assume in favour of the accused that it did injure her as to her defence on the merits, for if the question had been actually and properly put by the Magistrate, it was just probable that she might not have made the confession at all. The learned Government Pleade for the Crown has referred to a recent judgment of this Court, Emperor v. Rama Kariyappa : (1929)31BOMLR565 , in which the assistance of Section 533, Criminal Procedure Code was invoked: In that case the confession was recorded by the Magistrate, but column 5 of the record which referred to certain details as to the length of time during which and the places where the accused had been in the custody of the police had not been filled in. The Magistrate gave evidence, and the learned Judges came to the conclusion that that evidence cured the defect and therefore it was open to them to act upon the confession of the accused and find the accused guilty on the strength of the statements contained therein. The facts of that case are not quite the same as in this case. The omission in this case which we have got to consider is more important than the omissions of details as to the length of time and the places which are mentioned at page 566 in the reported case. The omission in this case being important, we are of opinion that the confession is not relevant and cannot be used against the accused. In making these observations we do not wish to be understood to say anything derogatory against the Magistrate who recorded the confession and who subsequently gave evidence. He relied on his memory, and no doubt he was under the bona fide impression that he had actually put to the appellant that she was not bound to make the confession though he had failed to record it. But the impression might be mistaken, and we are, therefore, prepared to give the benefit of doubt to the appellant.
5. The only important piece of evidence, therefore, against the appellant is her confession which has been retracted, and which, as I have stated above, is defective in twoparticulars viz., that the important question required by Section 164(3) was not put to her, and secondly, the memorandum which is required to be made by the Magistrate himself was not so made. It is, therefore, not necessary for us to consider at any length whether the statements in the confession have been corroborated by other material particulars. There is no absolute rule of law that a retracted confession cannot be accepted as evidence of the prisoner's guilt without independent corroborative evidence ; but it has been held in various cases that it is a rule of prudence which requires that a retracted confession which is generally always open to suspicion shall not be acted upon to the prejudice of the accused, unless it is corroborated by reliable and independent evidence to a material extent and also in material particulars The corroborative evidence in this case is the evidence of Exs. 23, 24, 25 and 34, and taking all that evidence to be true, it does not corroborate the statement in the confession that it was at the hands of the appellant that the infant met its death. Taking all these facts and circumstances into consideration, we are of opinion that this is a case in which the benefit of the doubt should be given to the appellant.
6. We, therefore, set aside the conviction and the sentence of transportation for life, and direct that the appellant be acquitted and set at liberty.
1. It is clearly proved that the appellant with her sister-in-law came to Wathar and that at that time the sister-in-law had a newly born infant with her. They left the Wathar station and on their way home they left the child on the side of the road. One of them obviously had killed the child by squeezing its throat. There is no evidence apart from the statement made by the present appellant to the Magistrate on November 14, that is about a week after the murder, which of the women was guilty.
2. The appellant has been convicted on the strength of her confession which, as has been pointed out by my learned brother, was defective under Section 164(5) of the Code of Criminal Procedure. That section provides that a Magistrate shall, before recording any confession, explain to the person making it that he is not bound to make a confession. At the end of the confession in this case there is a certificate to the effect that the Magistrate had explained to the appellant that she was not bound to make a confession ; but the record of the questions put by the Magistrate and her answers does not contain any such question or answer, and since the certificate was not written by the Magistrate in his own hand but by a clerk and merely signed by him, I am not willing to accept it as supplementing the questions and answers in the confession. In these circumstances the Magistrate was called as a witness and he has deposed that he did in fact explain to this woman that she was not bound to make a confession. Here, again, without in the least wishing to throw any aspersion on the Magistrate's honesty, I must say that I am not willing to accept the oral evidence given four months after the recording of the statement in preference to the actual statement recorded at the time. I, therefore, agree that the learned Magistrate did not explain to the appellant that she was not bound to make the confession.
3. I now come to Section 533 of the Criminal Procedure Code which provides that if any Court finds that any of the provisions of Section 164 or Section 364 have not been complied with, it shall take evidence that such person duly made the statement recorded ; and notwithstanding anything contained in the Indian Evidence Act, 1872, Section 91, such statement shall be admitted, if the error has not injured the accused as to his defence on the merits. We can, therefore, admit the confession on the evidence of the Magistrate that it was made, if we are satisfied that the error of the Magistrate in omitting to put this question to the appellant has not injured her. But I agree with my learned brother that we cannot make any such assumption. It is of course not at all improbable, as pointed out by the Government Pleader, that even if the Magistrate had explained to the woman that she was not bound to make the confession she would still have made the confession. This we see every day. But I do not think that we are entitled to take this for granted, and, therefore, I accept the view that this confession was not admissible and must; not be considered. Therefore, the appellant is entitled to an acquittal.