1. This is a reference by the learned Sessions Judge of Thana, under Section 307 of the Criminal Procedure Code, in a case where one Rama Dhan Powar was charged, under Section 302 of the Indian Penal Code, with murder by causing the death of his uncle, Balu Rama Powar, on the night of the 22nd April 1915. The Jury unanimously returned a verdict of 'not guilty.' But the learned Judge disagreed with that Jury, and being clearly of opinion that it was necessary for the ends of justice to submit the case to the High Court, he has accordingly submitted it, recording the grounds of his opinion that the accused should have been convicted of murder.
2. Upon this reference the whole case is open before us, and we have heard a complete argument. The result of that argument on our minds is to satisfy us that upon the evidence on the record the accused is entitled to a verdict of acquittal.
3. There is, we think, no doubt that the accused bore ill-will to his uncle, the deceased, whom he regarded as a sorcerer and to those malign influences he attributed the illnesses which had befallen his wife and son. That, no doubt, would supply to the accused a motive for wishing to kill his uncle. It would also supply to the villagers and the police a reason for suspecting the accused of his murder if no other more likely clue happened to present itself. It was natural then in the circumstances stated that suspicion should fall upon the accused, and it may be that that suspicion still rests upon him. But a man cannot be convicted of murder on suspicion, and the question remains whether the evidence on the record is such as would justify a conviction. It is clear that the learned and experienced Sessions Judge before whom this trial was had bestowed great care on the case. But we could wish that his charge to the Jury had been somewhat more moderate and neutral in tone, having regard to the undeniable infirmities which attach to the evidence for the Crown.
4. The evidence for the prosecution falls into three classes: the so-called judicial confession, the alleged extra judicial confession and the conduct of the accused. Dealing, first, with the judicial confession as it has been called, that is Exh. 19 on the record, and the record of it was made by Mr. V.H. Thakor, Second Class Magistrate and Mamlatdar of Kalyan. In place, however, of the certificate required by Section 164(3) of the Criminal Procedure Code, for the admissibility of such statements, we have a certificate in these words :
I believe that this confession is not voluntary. It was taken in my presence and hearing and was read out to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.
5. Upon this certificate it appears to us that the confessional statement is inadmissible in evidence being made under circumstances diametrically the opposite of those which the law requires as a condition precedent to the admissibility of a confession. The case appears to us stronger than that in Reg. v. Garbad Bechar (1872) 9 B.H.C.R. 344, where a detailed confession, made by an accused before a Magistrate but retracted on being read over to the accused, was held to be inadmissible in evidence. It seems to us that the only course which the Second Class Magistrate could properly follow when he came to the conclusion that the accused was not speaking voluntarily before him was to refuse to continue to record the examining any further. The prosecution sought to remove this difficulty by calling the Second Class Magistrate and examining him as to the precise parts of the statement which, in his opinion, were involuntarily made. In our opinion, however, it is not competent for the prosecution by this means to supply the deficiencies which exist in this confession and which existed in it from the time it was recorded. Moreover, even if the confessional statement were held to be admissible in evidence, its value would, in our judgment, be nil, for a confession must be read as a whole, and this statement which is self-contradictory, is simply incapable of being read as a whole so as to give it any sensible meaning. The Court would be driven to speculate whether it should believe the first inculpatory part of the statement or the second exculpatory part. For, both parts cannot be believed at once. We think, therefore, that the case of the prosecution is not advanced by reason of this so-called confession. We observe further that in one not unimportant particular the confession is curiously at variance with the evidence which admits of no doubt. According to the confession the accused strangled the deceased with his own hands. According to the medical evidence that is an impossible theory, and the marks left on the deceased's body show decisively that the strangulation was by means not of human hands but of a cord or rope.
6. Next the prosecution relied upon what is called an extra judicial confession, that is to say, a confession alleged to have been made by the prisoner to a group of villagers on the 23rd April at some time, presumably in the afternoon, though the time is not definitely stated. The case, however, for the Crown is that this confession was made before the arrival of the District Police on the night of the 23rd April. It is unfortunate that evidence as to this confession was excluded by the Committing Magistrate on the ground that the confession was made in the presence of the Police. We do not suggest that the learned Magistrate was not right in excluding that evidence. We mean only that for purposes of the present argument it is unfortunate that we are without the assistance which we should derive from a study of the depositions of the material witnesses before the Magistrate. For, the result is that the evidence concerning this extra judicial confession is first disclosed before the Court of Session, and there the witnesses to it are Soma and Valku. Soma, whether for the reasons staled or for other reasons, made no allusion to this incident in the Magistrate's Court. Valku was not examined before the Magistrate at all. He was first called in the Court of Session. Now if Valku is to be believed, when this confession was made by the accused to a group of villagers the Patil was among the group, and it was the Patil who directed the questioning of the prisoner. If the Patil was present at all, it is, we think, natural and probable to suppose that it would be he who would conduct this informal examination of the suspect. But a confession thus made to the Police Patil would clearly be invalid. It is true that Soma says that the Patil was not present when the villagers were examining the prisoner. But we see no particular reason why the evidence of Soma on this point should be preferred to that of Valku. And, as we have said, if Valku's statement be accepted, the confession goes out of the case. The matter, however, does not rest there; for, there is, it appears to us, grave reason to doubt whether this extra judicial confession was ever made at all. The witness Hari Rama who was the deceased's employer, and who seems to be a witness of credit, deposes that: 'before the arrival of the Police we made inquiries about the murder. The accused did not make any statement before the police came'. And this is the more significant as Hari Rama was one of the village party who found the deceased's dead body on the bank of the river. The inference, therefore, would naturally arise that the alleged confession made to this group of villagers would be as familiar to Hari Rama as to any one else. Hari was examined on the 9th July before the Court of Session, and on the same day the Village Police Patil Dharma Hari was first examined. In this statement the Patil says: 'We did not make any inquiry before the Police came. The accused Rama did not give me any information'. Soma and Valku were examined on the 12th July, and the Patil recalled on the 12th July bethinks himself for the first time of this alleged confession made to the villagers. It seems to us, therefore, to detract materially from the value of his evidence that throughout his deposition made on the 9th July this circumstance seems never to have occurred to his memory. Moreover the Head Constable, Parbati Haibati, deposes that he arrived in the village on the night of the 23rd April, which would be some hours after this alleged confession to the villagers, yet Parbati makes no effort to arrest the accused, nor is the accused arrested even when the Sub-Inspector arrives on the following morning at 7-30. He is merely kept under surveillance, such as would be amply accounted for by the villagers' suspicion to which we have alluded, and is not arrested till the night of the 24th. It seems to us that this delay in the arrest of the accused is also difficult to reconcile with the theory that the accused had made a clean breast of his crime to his fellow villagers on the afternoon of the 23rd. In this connection it may be added that the Patil's report, Exh. 4, made after the villagers had found the body by the bank of the river, contains no mention of the name of the accused. We think, therefore, that the case against the accused is not materially strengthened by this alleged confession to the villagers.
7. There remains only the third piece of evidence upon which the prosecution have relied, and that consists in this that while the accused was under the surveillance of the District Police he was allowed to go home to take his meal, and that thereafter, under the pretext of retiring for natural purposes, he broke away from those who were guarding him and leapt down a well some twenty cubits deep. We see no reason whatever to doubt the truth of this evidence. But the significance of it is much more uncertain. For the prosecution it is contended that the true meaning of it is that the accused, conscious of his guilt which he had confessed, made this attempt to commit suicide, and it cannot be denied that the accused's conduct is consistent with such a theory. On the other hand, it seems to us to be even more consistent with the theory that the accused had not confessed, but that being goaded and annoyed and harassed by the villagers who were endeavouring to force him to confess the offence of which they suspected him, he was unable to tolerate such treatment further, and jumped into the well in order, temporarily at least, to liberate himself. It seems to us that this explanation of the admitted conduct is even more probable than the explanation offered on behalf of the Crown. For, if the accused, being guilty of this crime, had made a clean breast of it by means of an open confession to his co-villagers, we regard it as not specially likely that he would, within a short time of such confesson, have sought to commit suicide. While, therefore, we have no doubt as to the truth of this evidence of the third item in the case for the Crown, we very gravely doubt whether the meaning of it is in favour of the theory which the Crown submit.
8. There is no other evidence in the case and, for the reasons Which we have given, it seems to us impossible to hold that on this evidence any man could safely or properly be convicted whether of murder or of any other crime.
9. We direct, therefore, that the accused be acquitted and discharged.