M. Sadasivayya, J.
1. This is an appeal against the conviction of the present appellant in Sessions Case No. 58 of 1956 on the file of the Sessions Judge, Dharwar. The facts of the case, briefly stated, are as follows:
2. The present appellant along with two other persons who were accused Nos. 2 and 3 in the said Sessions Case, had been charged for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, or in the alternative, for an offence punishable under Section 201 read with Section 34 of the Indian Penal Code.
The case of the prosecution was that between the 7th and 8th of September 1956, these three accused persons had intentionally caused the death of one Sangappa Hanamappa Haglad of Halligudi village while the said Sangappa was proceeding on his bicycle from Venkatapur to Halligudi, and that thereafter all the accused persons removed the dead body of Sangappa and burnt it in a hay stack with the intention to cause disappearance of the evidence of the commission of the murder.
There were no eye-witnesses to the commission of the alleged offence. The evidence and circumstances on which the prosecution case rested were, briefly, as follows: There was ill-will between the deceased Sangappa and A-1 (the present appellant) and A-1's father. At the instance of A-1's father proceedings had been initiated against Sangappa, under Section 107 of the Cr. P. C.; in those proceedings 6-9-1956 had been fixed by the Executive Magistrate at Mundargi as the date for passing final orders.
Therefore, Sangappa had been to Mundargi on his bicycle, from the village of Halligudi. The final orders were not passed on that day and the passing of final orders was postponed to another date. Sangappa and P.W. 2 Neelappa both left Mundargi and spent the night at Hatti. On the next morning i.e., on 7-9-1956 they started for Halligudi and on the way they halted at Venkatapur and ad their lunch in the house of Laxmawwa P. W. 3.
Thereafter, P.W. 2 left Laxmawwa's house first and proceeded to Halligudi. Sangappa left Laxamawwa's house about an hour or so afterwards, but he never reached Halligudi and has not been heard of since then. According to the evidence of P.W. 2, on his way from Venkatapur to Halligudi, he saw the three accused persons sitting together near a tank known as 'Bhavikatti Tank' which is about 2 miles from Venkatapur, and at that time A-1 had an axe in his hand and the accused persons bad also a bullock-cart with them, which belonged to A-1's father.
At about the time of the mid-night of 7-9-1956, P. W. 8 who had got tip to answer calls of nature saw a big blaze of fire towards Hallikere village. On the morning of 8-9-56 P. W. 8 went to his uncle's land S. No. 202 of Halikeri for ploughing and found that the hay-stack of his uncle had been burnt. When he went there he also saw a half-burnt human body and a half-burnt bicycle in that stack. Thereafter he went and informed the Police Patil P.W. 9, who made a report as per Exhibit 17 and sent the same to the Police Outpost at Dambal which was about 10 miles from Hallikeri.
The information reached the Police Sub-Inspector P. W. 15, at about 9 P.M. on 8-9-36. He registered a case and proceeded to Hallikeri via Halligudi. He reached Halligudi at 5 A.M. on the next day, and he informed the villagers at Halligudi that a half-burnt human body and a bicycle were found near Hallikeri. P.W. 1 the brother of Sangappa came and informed him that Sangappa who had left his house on the 6th had not returned.
Thereafter P.W. 15 took P.W. 1 and 2 withhim to Hallikeri where, P.W. 1 identified the bicycleas that of his brother and the dead body as thatof his brother Sangappa, He then gave the complaint Exhibit 7. PAV. 15 took A-1 into his custody on the night of the 9th alone, though the formal arrest of A-1 took place on the 10th.
On 11-9-1956 the Police Patil of Halligudi produced a bullock-cart belonging to A-1 and it was found that there were some bloodstains on thy inner side of the right wheel; Exhibit 3J is the panchanama pertaining to the attachment of this cart.
On the 13th of September, 1956. A-1 led the panchas to a place (which was about 2 miles from Venkatapur) near the road between Venkatapur and Halligudi and pointed out a spot at which some bloodstained earth and human hair was attached by the police, and then he took the panchas to his house and produced an axe-head, which was smeared with ashes, from a cup-board in his house; then he took them to a field known as 'Yeri-Hola' which was about a mile to the east of Halligudi village and pointed out a spot from which the police officers took out some lumps of burnt millet seeds and a small quantity of burnt ashes.
Exhibit 30 is the panchanama which pertains to these transactions. On the night of 13th September, A-1 was produced before the Mahalkari of Mundargi (P.W. 13) and his confession as per Exhibit 28 was partly recorded that night. A-1 was again produced on 14-9-56 before P.W. 13 and the rest of A-1's confession was recorded on 14-9-56. In the course of his examination by the learned Sessions Judge, A-1 stated that the confession made by him was neither true nor voluntary and that he had made that statement under the pressure of the police.
The learned Sessions Judge took the view that the confession was voluntary and true and he accepted the prosecution evidence in so tar as this accused was concerned. Giving the benefit of doubt to accused 2 and 3 he acquitted them and convicted the present appellant for offences under Sections 302 and 201 of the I. P. C. and sentenced him to imprisonment for life.
3. The main contentions which have been urged by the learned counsel for the appellant are the following :
(1) that the confession Exhibit 28 which has been recorded by P.W. 13 does not satisfy the requirements of law; that it is neither voluntary nor true and that the learned Sessions Judge should not have placed any reliance on it;
(2) that the learned Sessions Judge should not have drawn any inference against the accused from the recovery of the axe, the discovery of certain bloodstains on the wheel of the cart and from the discovery of ashes of burnt 'navane' in a field near the one in which was the burnt bay stack;
(3) that the evidence adduced by the prosecution to show that Sangappa, on his way back from Mundargi had purchased 'navane' at Venkatapur is not worthy of belief and that the Sessions Judge should not have placed any reliance on it; and
(4) that the identity of the burnt corpse has not been satisfactorily established and that the learned Sessions Judge erred in taking the view that the half burnt corpse found in the hay stack was that of Sangappa.
After going through the entire evidence in the case and bearing the arguments on both sides, we find that there is much force in these contentions which have been urged by the learned counsel for the appellant.
4. Exhibit 28 is the confession statement of A-1, which has been subsequently retracted by him. From a perusal of Exhibit 28 and from the evidence of P.W. 13 it is clear that the recording of this statement was done in a most unsatisfactory manner. Neither from Exhibit 28 nor from the evidence of P.W. 13, does it appear that A-1 was made aware of the fact that he was in the presence of a Magistrate. It is of the utmost importance that the Magistrate, before proceeding to record the confessional statement, should satisfy himself thoroughly, that the accused person is completely freed from any possible influence of the police.
It was very necessary that P.W. 13 should have apprised A-1 before he commenced recording the statement, that A-1 was in the free atmosphere of a Magistrate's Court. As staled in In re Madegowda, AIR 1957 Mysore 50 at p. 52, the omission on the part of the Magistrate, to make known to the accused that he was in the presence of a Magistrate takes away much of the force of the confession statement.
The High Court of Orissa in a case reported in : AIR1953Ori149 , goes to the extent of holding that a confession recorded by a Magistrate without disclosing his identity to the accused cannot be said to comply with the strict formalities required by Section 164 of the Cr. P. C., and on that ground alone it should be ruled out as inadmissible. The first accused was produced before P.W. 13 at 8-30 P.M. on 13-9-1956.
From a perusal of Exhibit 28 itself, it is difficult to say whether it was recorded actually On 13-9-56 or whether it was recorded on 14-9-56; but, according to the evidence of P.W. 13 a portion of it was recorded on 13-9-58 and the remaining portion was recorded by him on 14-9-56, P.W. 13 has, no doubt, refuted the suggestion made during the course of his cross-examination to the effect that at 8-30 P.M. on 13-9-56 he was in his house and not in his office; but it is strange that P.W. 13 should not have realised the desirability of recording the statement during the usual court hours; it is not clear as to what urgency there was to commence recording of the statement at 8-30 P.M. on 13-9-56, particularly when, according to the version of P.W. 13, the recording was discontinued shortly after the commencement and was further continued on tile next day.
As pointed out in AIR 1955 Pepsu 33 Mt. Bhagan v. State of Pepsu, it is a highly undesirable practice to produce accused for recording confessional statements after court hours. From the evidence of P.W. 13 it appears that he did not question A-1 in order to ascertain for how many days he had been in police custody; it is not clear as to whether he had put any questions to satisfy himself that the accused was free from influence of the police.
In the course of his examination-in-chief, P. W. 13 states that immediately after he received A-l at 8-30 P.M. on 13-9-56, he warned A-1 that he (A-1) was not bound to make a confession and that if he were to make one it might be used against him, in the ensuing trial; but, in the course of his cross-examination it is admitted by him that he has not made a note in writing, of this warning stated to have been administered by him on the night of the 13th.
It is further clear from the statement of P. W. 13 during his cross-examination, that on the night of the 13th itself he came to know from A-1 that the offence took place at 5 P.M. on the 7th. The subsequent portions were recorded by him, (according to his evidence) on 14-9-56 after A-1 had been given time till 4 P.M., for reflection. It is admitted by him (during his cross-examination) that there is nothing in the statement itself to show that time was given till 4 P.M., on the 14th.
On the other hand, on the top portion of Exhibit 28, it has been noted at 11-30 A.M. on 14-9-56, that A-1 'was allowed sufficient time for reflection to revive his memory.' In Exhibit 28, item No. 3 is a printed certificate to the effect that the accused had been asked if he is disposed to make the statement of his free will; towards the end, P.W. 13 has made a routine certificate to the effect that he believes that the confession was voluntarily made.
Apart from these, Exhibit 28 contains no indications as regards the questions, if any, which P.W.13 put to A-1 in order to assure himself that the confession statement was being made voluntarily after A-l had been made to understand the full implications of his making such a statement. The result, therefore, is that apart from the statement of the Magistrate who recorded the confession, there is no material from which the court can satisfy itself as to whether the confessional statement was really voluntary in its nature.
As pointed out by the learned Chief Justice of the Orissa High Court in Gurubaru Praja v. The King, AIR 1949 Orissa 67 at p. 72, it is not I enough if the conscience of the Magistrate is satisfied as to the voluntary character of the statement; but, it is also necessary that the Magistrate
'leaves such materials on record in proof of compliance with the imperative requirements of the section as would satisfy the Court that sits on judgment in the case that the confessional statement was made voluntarily.
In short, the provision of the statute must be complied with both in law and spirit.'
The learned Chief Justice has, in that decision, explained as follows :
'A Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to the task of ascertaining that the statement he is going to make is of his own accord and not on account of any influence on him. That is what is the meaning of voluntary statement within the meaning of the section.'
We arc in respectful agreement with the above Statement of the learned Chief Justice; and in the present case we are not satisfied that P.W.13 had applied his judicial mind to the task of his ascertaining that the statement which A-1 had offered to make before him was not on account of any influence on A-1. Both the learned Sessions Judge and P.W.13 appear to have been satisfied from the insistence of A-1 to make the confession (in spite of the warning administered by P.W.13) that the confession was made voluntarily.
A-1 had been produced by the police before the Executive Magistrate outside the usual court hours and the insistence to make the confession statement should have been viewed by the Magistrate with suspicion. The Supreme Court, in a case reported in Sarwan Singh v. State of Punjab : 1957CriLJ1014 , where the Magistrate had given a similar explanation and had stated that the accused had insisted upon making a statement straightway, has observed at p. 644 that such insistence to make the confession immediately, should have put the Magistrate on his guard because, it obviously bore traces of police pressure or inducement.
Therefore, the mere insistence on the part of A-1 to make a statement is not a proper basis for taking the view that his confession was voluntary. In the said decision of the Supreme Court, his Lordship Gajendragadkar has repeated the warning which he had given earlier in a case reported in Rangappa Hanamappa v. State : AIR1954Bom285 , that the recording of the confession under section 161 of the Cr. P.C., is a very solemn act and that the Magistrate who records the confession must never allow any element of casualness to creep into the recording of a confession.
The compliance with the requirements of section 164 of Cr. P. C., should be undertaken by the Magistrate not as a mere matter of form, but as a matter of essence, Vide, AIR 1949 Orissa 67 at p. 71. The very manner of the recording of this statement, (as can be seen from Exhibit 28 itself), shows that P.W.13 has proceeded in a very casual way and that he did not fully realise the solemnity of the act. When considering the question of the truth of the confessional statement, the learned Sessions Judge seems to have got the impression that this statement is very rich in details. The Supreme Court, in a decision reported in Muthuswami v. State of Madras : AIR1954SC4 , has cautioned against the acceptance of a confession merely on the ground that it contains a wealth of details.
Therein, the Supreme Court has stated that it is unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth. There are two important features in regard to Exhibit 28 which lay open the confession statement, to the suspicion that it is a tutored one. The first is his statement in regard to his axe; it is stated in Exhibit 28 that the axe with which the offence was committed has been kept in A-1's house; but, according to the evidence of P.W. 14 with reference to the panchanama Exhibit 30, the axe had already been recovered from the house of A-1, on the morning of 13-9-56.
If the confession statement subsequently made by A-1 (be it on the evening of 13-9-56 or on the next day 14-9-56) before P.W.13 was an untutored and a true statement, the axe should have been referred to as having been already recovered from his house that morning, instead of being referred to as if it had been still remaining in his house.
The second feature is that though the first accused is an illiterate person (his L. T. mark has been taken to Exhibit 28), he has been able to mention in his statement not merely the dates but also the exact time or hours at which he was at different places. The learned Sessions Judge, while realising the importance of the confession as a connecting link between A-1 and the crime, did not unfortunately, consider all these aspects before making up his mind to rely on Exhibit 28. Instead, the learned Sessions Judge put forward a special plea on behalf of P.W.13 in regard to his ignorance of the circulars of the Bombay High Court intended for the guidance of the Magistrates recording confession.
From a scrutiny of Exhibit 28 and after a careful consideration of the evidence of P.W.13, we are satisfied that there has not been a proper compliance with the requirements of Section 164 of the Cr. P. C., in regard to the recording of the confession statement and that there are very grave doubts both in regard to its truth and its voluntariness. We are satisfied that it would be most unsafe to place any reliance on this confessional statement, which has been subsequently retracted by A-1.
(After discussing the evidence their Lordships held that no adverse inference should be drawn against the accused on the basis of the blood stains found on the wheel of the cart and that the recovery of the ashes from the field was not of much importance. Their Lordships then discussed the evidence relating to the burnt body found in the burnt hay-stack and continued :)
(5-8) It is seen from the evidence of P.W.9 that Sangappa was of bad character and had been setting fire to hay stacks. Even if it were to be assumed, for purposes of argument, that the burnt corpse found in the hay stack was that of Sangappa, the possibility of his having met with his end in a manner different from that sought to be made out by the prosecution, cannot he excluded.
There appears to have been some ill-will between A-1 and his father on the one side, and Sangappa and P.W. 11 on the other; P.W. 2 appears to have been a surety for Sangappa and P.W.1l. The non-appearance of Sangappa after the Chapter Proceedings were adjourned at Mundargi, may have given rise to some suspicion against A-1. It is contended on behalf of the appellant, that it is not improbable that this circumstance was taken advantage of by those who were not well-disposed towards A-1, to implicate him.
The burning of the hay stack with the body in it, may have been to cause the disappearance of the evidence of a foul murder; but, there is no evidence to establish that it was A-1 that had set fire to the hay stack. The disappearance of Sangappa and the ill-will between him and A-l, may even give rise to suspicion against A-1; but, as indicated by the Supreme Court in : 1957CriLJ1014 , it is not enough to say that the prosecution story may be true; as observed by their Lordships,
'between may be true and must he true there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.'
The mere possibility of the half-burnt corpse being that of Sungappa and there being some grounds for suspicion against the appellant, are not by themselves sufficient to sustain a conviction, particularly when it has been found that no reliance could be placed, in this case, on the retracted confession.
9. On a careful consideration of the entireevidence and all the aspects of the case we aresatisfied that this appeal should he allowed. Therefore, we allow this appeal and set aside the conviction and sentence awarded by the learned SessionsJudge. It is ordered that the appellant be set atliberty forthwith.
10. Appeal allowed.