Basi Reddy, J.
1. This is an appeal by the State Government against the acquittal of the seven respondents in Sessions Case No. 32 of 1961 on the file of the court of Sessions, Warangal Division. The seven respondents who figured as Accused-1 to 7 respectively and will be referred to as such in the course of this judgment, are:
1. Shaik Ibrahim (Accused) 2. Syed Hasan Ali (Accused-2) 3. C. Janardhanrao (Accused-3) 4. G. Satyanarayanarao (Accused-4) 5. Ahmed Ali (Accused-5) G. K. Narasimhamurthy (Accused-6) and 7. K. Ramaiah (Accused-7).
2. The accused were all members of the police force, and at the material time Accused-1 was the Circle Inspector. Accused-2 and 3 were the Sub-Inspectors and Accused-7 was a police constable attached to the Central Crime station, Warangal. Accused-4 was the Sub-Inspector and Accused-5 and 6 were the police constables Nos. 957 and 885 respectively attached to the Mathwada police station. Both the Central Crime Station and the Mathwada Police Station were located in one and the same building in adjoining halls.
The accused were tried by the Sessions Judge, Warangal, on two charges. The first charge comprised of two parts -- the first part was against Accused-2, 5, 6 and 7 under Section 302 read with Section 34 I. P. C. on the allegation that on the night of 24-4-1961 at the police station, Mathwada in Warangal town, they had in furtherance of their common intention, caused the death of one Botla Chandriga, hereinafter referred to as Chandriga, while the second part of the charge was framed against Accused 1, 3 and 4 under Section 302 read with Section 109 I. P. C. for having abetted the commission of the aforesaid offence.
3. The second charge was against all the seven accused under Section 201 read with Section 34 I. P. C. for having caused the evidence of the said offence to disappear with the intention of screening themselves from legal punishment.
4. The learned Sessions Judge acquitted all the accused after recording the following finding in the penultimate paragraph of his judgment.
'The eye evidence and the circumstantial evidence adduced by the prosecution is unreliable. It is not established that the death of Chandriga was homicidal. The guilt of the accused on any of the charges framed against them or for the offence under Section 330 I. P. C. (Voluntarily causing hurt to extort any confession or any information which may lead to the detection of an offence) is not proved. All thee accused are fit to be acquitted'.
5. In support of this appeal by the State Government against the order of acquittal, it was contended by the learned Public Prosecutor that the judgment of the Sessions Judge is vitiated by gross misappreciation of evidence and by manifest errors of Jaw, and the acquittal of the accused has resulted in a miscarriage of justice.
6. This is a case of alleged use by the accused-police officers of third-degree methods to extort information regarding an offence from a suspect, which ended in the death of the suspect. The facts unfolded by the oral and documentary evidence adduced by the prosecution are as follows: On the night of 22-4-1961 the house of one Maganti Ramachandram in Warangal town was broken into by thieves and property consisting of gold and silver ornaments and cash of the total value of about Rs. 2200/- was stolen. On a complaint filed by the said Kamachandram, a crime was registered under Sections 457 and 380 I. P. C. as Crime No. 44 of 1961 of Mathwada Police Station and the case was entrusted to the Central Crime Station, Warangal, for investigation.
Accused-1, who was then the Circle Inspector of Polce in charge the Central Crime Station, Warangal took up the investigation. As the crime was suspected to be the work of professional criminals, Accused-1 directed his subordinates to check up all suspects and ex-convicts in Warangal and round about. P. W. 8 (Khaja Basheeruddin) is police constable No. 876 who was at that time working in the Central Crimo Station Warangal. According to him on the night of 23-4-1961 Accused-1 instructed him to bring Chandriga and P. Ws. 1 and 2 (Pasula Komaraiah and Jannu Kankaiah), who were all exconvicts and who were living at that time in a locality known as Desaipet, near Warangal town. Accordingly P. W. 8 and a Head constable by name Asgari Hasan went to Desaipeta early on the next morning i. e. on 24-4-1961, to bring those three persons but they were able to get at only Chandriga and the latter was taken to the Mathwada police station at about 8 A. M. and handed over to Accused-3, one of the two Sub-Inspectors attached to the Central Crime Station. Similarly P. Ws. 1 and 2 as well as P. Ws. 3 and 4 (Balasani Kotiah and Ponna Venkiah) were taken to the Mathwada police station for purposes of interrogation on the same day i.e. 24-4-1961.
7. The case of the prosecution is that on the night of the 24th between 10-00 and 11-00 P. M., Accused-2 to 7 took Chandriga inside the Mathwada police station, tied up his wrists with a cloth, hung him by the wrists to a peg driven into the wall and tortured him whilst so suspended, by placing a pestle on his neck and pressing it down with a view to extort a confession or information from him regarding the aforesaid property offence. The process was carried on to such a pitch that Chandriga died, presumably due to the fracture of the vertebrae. Thereupon in the course of the same night, Accused-3 and Accused-4 contacted Accused-1 and in accordance with his instructions Accused 2 to 7 first threw the body of Chandriga into a well situated near the police station and subsequently removed the dead body from the well, took it to a distant spot some thirty miles away from Warangal and buried it in the bed of a river.
8. However on the next morning i. e. on the morning of the 25th, it was given out at the Math-wada police station that Chandriga had escaped from custody during the night and his whereabouts were not known. Entries were made to that effectin the General Diary of the Central Crime Station.This was a false story and the truth could not be suppressed for long. There were persistent rumours that Chandriga had been tortured and killed in the police station. Matters came to a head on the 28th April when a large crowd consisting of about a thousand persons collected at the Math-wada police station and demanded that those responsible for the death of Chandriga, should come out.
P. W. 31 (Sri S. Ananda Ram), the Superintendent of Police, Warangal, was informed by telephone about the situation at the police station in the evening of the 28th. He proceeded to the police station and took stock of the situation. Various voices were heard in the crowd that one Chandriga had been brought to Mathwada police station four days earlier along with P. Ws. 1 and 2 and that Chandriga had been done to death in the police station during interrogation. P. W. 31 tried to pacify the crowd and get a coherent version. He picked out P. W. 1. took him into the police station compound and asked him to give an account of what had happened. P. W. 1 then gave a statement which was recorded by P. W. 20 (Franklin), the Town Inspector of Police, Warangal. The statement is Ex. P.6 and it runs thus:
'First Information Report.
Time 9-30 P. M. on 28-4-1901. Pasala Korn riah, son of Abbiah, resident of Desaipet.
I am the resident of Pesaipet. On Sunday one C, J. D. II. ' C. came to my house in my absence and informed my wife that I am wanted by S. J. Janardan Sab (A 3), so I came to P. S. Mathwada on Monday at about 11 A. M. When 1 came to P. S., I saw Botla Chandriga, S. I. S Janardhan Sab (A. 3), Junior S. I. and S. I. Satyanarayana (A. 4) present at the P. S. After an hour, 2 P. c8. Ahmed Ali (A-5) and Murthy (A-6) brought Jannu Kanakayya. (P. W. 2) S. I. S. Satyanarayana (A-4) and Janardan (A-3) and Hassan Ali (A-2) made me, Jannu Kanakayya (P. W. 2) and Botla Chandriga sit separately. At about 10 in the night Botla Chandriga was taken inside for interrogation. P. C. Murthy (A-6) came to me and took my upper cloth and the hands of Botla Chandriga were tied by S. I. Satyanarayana (A-4). Later the P. Cs. hung him to the peg. The P. Cs. who have interrogated are Ahmed Ali (A-5), Murthy (A-6), Venkat Narsiah, Ramanna (A-7) and Bashir, also Vaikuntam. There were also some more police constables. I can identify them by their faces. While the interrogation was going on I was called inside by the 3 S. Is. and shown the condition of Chandriga and threatened that I will also be subjected to the Fame treatment. At the Time Chandriga was tied to the peg with his hands and a pestle was placed on his neck which was being pressed by the constable. Chandriga was crying of pain then. At the same time S. I. Janar-dhan Sab (A-3) was beating and questioning him to reveal, while S. I. Satyanarayana (A-4) held his neck and pressed. At this time, the tongue of Chandriga came out and he became unconscious and froth was coming out of his mouth. In the meanwhile the Seth Sindi Abbiga brought the parents of Chandriga, his wife, the wife and children of Kana-kayya and my wife to the station in the night. For sometime after their arrival Chandriga was crying. On hearing the cries of Chandriga, his parents, wife and children wept. When Chandriga became unconscious, he was removed from the peg and made him lie on the ground. S. I. and P. C. Murthy (A-6) beat him with stick saying that he was pretending. Then S. I. Satyanarayana (A-4) sent P. C. Ahmed Ali (A-5) for a doctor. The doctor came and examined and went away making signs with his hands. After Chandriga's death a 'cumbal' was brought and her was covered with it. The parents, wife of Chandriga and others were sent back as there was no need for them to remain. Later I was confined in the office room. About 1 a. m. the same P. Cs. and S. Is. wrapped him in the 'cumbal' and took him out to the back of the Police Station. I was seeing this through the window of the room. In the early morning at about 4 a. m. myself and Jannu Kankayya (P. W. 2) were confined together in the small office room and not allowed to speak with anybody. Later when we raised alarm, C. I. Ibrahim (A-1) made us sit outside.
Left thumb impression of (Pesala Komriah) Recorded by me and read over in Telugu to the deponent and admitted to be correct.
I issued F. I. R. in Cr. No. 45/61 under Section 302 I. P. C. and the case is being transferred to the S. P. M. for investigation.
S. Town Inspector,
9. This was treated as the First Information Report and the crime was registered as Crime No. 45/61 under Section 303 I. P, C. against Accused-2 to 7 and some other police constables. Thereafter a copy of the, First Information Report was sent to the Sub-Collector, Warangal, who was also the Joint Executive First Class Magistrate, P. W. 16 (Sri P. Sitapati) was the officer at that time and he received the First Information Report on the morning of 29-4-1961 at about 7 A. M. and proceeded to the Mathwada police station with a view to hold an inquiry under Section 176 Criminal Procedure Code into the cause of death of Chandriga. He reached the police station at 8 A. M, P. W. 31. the Superintendent of Police, was present and there was a boisterous crowd outside the police station.
P. W. 16 had a talk with the Superintendent of Police. P. W. 31, and the latter told him that Accused-2 was about to reveal some inculpatory facts about the incident. Thereupon P. W. 16 sent for Accused-2 and questioned him with a view to ascertain whether he wished to give a statement voluntarily. After satisfying himself that Accused 2 was desirous of making a statement of his own free will regarding the incident, P. W. 16 recorded the statement given by Accused-2. That statement is Es. P. 40 and it contains a record of the preliminary questions put by P. W. 16, the answers given by Accused-2 to those questions and the narrative given by Accused-2 about the occurrence which resulted in the death of Chandriga and the parts played by himself and the other accused in the incident. It is necessary to set out Ex. P. 40 in full. It runs thus:
'Statement of Sri Syed Hasan Ali, S. I. (Central Crime Station, Warangal), son of Syed Ahmed Ali, 28 years, permanent resident of Hyderabad residing at present in Warangal Girimjipeta, Warangal),
8-30 a. m.
Sri Syed Ahmed Ali who is one of the Sub-Inspectors involved was called before me. All other police officials were asked to go away. No other police official in view of this S.I. or the Magistrate recording statement. I have explained to him that he is not bound to make any statement unless it is voluntarily made by him. Given ten minutes to think over in my presence. He has been told that any statement made by him may be used against him.
8-40. Sri Syed Ahmed Ali was asked whether he is going to make any statement. The following record is maintained as per rules.
Q. Mr. Syed Ahmed Ali, are you making this statement voluntarily ?
A. Yes, Sir,
Q. Has there been any threat, inducement or promise to influence you?
Q. You are aware that the statement if any made by you is liable to be used against you.
A. Yes Sir.
Q. What have you to say?
A. I am a Sub-Inspect or, C. C. S. Warangal. I have been C.C.S. Warangal since a year. The crime occurred on Sunday i.e. 23-4-61. On 23-4-61 C.I. Sri Sheik Ibrahim (A-1) instructed S.I. Janardhanarao (A-3) and mo to call for the Chagal gang criminals of Desaipeta namely, Panila Peda Komrab (P.W. 1), Prakasam, Jannu Kanka (P.W. 2) and Botla Chandrayya. We acted on his instructions, deputed H.C. 459 and P.C. 876 (P.W. 8) to call them. This H.C. and P.C. both went brought only Botla Chendriga but at the time when these persons were brought I was not at C.C.S. I was engaged in crime investigation No. 44/61 and was moving in the town. During night also I did not return to C.C.S. I went home for rest, as I was too tired. Although I knew that I have to go and interrogate the Desaipeta criminals but due to tiredness, I was forced to die on bed. Meanwhile between 9 or 9-30 P.M. P. C. 849 Abdul Majid (P.W. 10) came to my house and informed me that C.I. (C.C.S.) Sri Sheik Ibrahim (A-1) is seated at Mathwada P. S. and the criminals namely, Pasula Pedda Komra and Botla Chendriga and Jannu Kankam are at Mathwada P. S. I came over to C.C.S. and found that C. I. was not present that C. I. had left instructions that these persons should be thoroughly interrogated in Cri. No. 44/61 and also in other undetected cases. Meanwhile S. T. Janardhanarao (A-3) came, and I and S.I. Janardhanarao (A-3) with the assistance of H.C. 459 and P.C. 429 Hamayya (A-7) and 459 H.C. Askar Hussain of C.C.S. and P. C. 1090 Bhadrayya of C.C.S. and P. Cs. 885 (A-6). 957 (A-5), 507 of crime detachment Mathwada P. S. took Botla Chendriga, brought him over to the police station room (the room in the right in Mathwada police station as one enters from the road into the P. S) the room in which we are sitting. Then I and Janardhanarao (A-3) instructed these P.Cs. and H.Cs. to start interrogation. I sat in the corner (left as yon enter the room) and Janardhan (A-3) sat on the chair (near the door from the left room). P.Cs. with Botla Chendriga were in the centre of the room. As per the interrogation system of the police, they tied the hands of Botla Chendriga towards up, and then put a 'Munug' (pounding stick, wooden pestle) on his neck. In this way they started giving him tease so that he may confess of having committed the offence'. Because he is a criminal involved in Chagal Gang case, which is a grave H.B. in which it is learnt from Botla Chendriga himself that he was the same person who had made manhole while attempting that case. As the same case was here in Cr. 44/64 of Mathwada that a hole in the wall besides the door-frame was made and the culprits gained entrance by opening the inner chain by inserting their hands through the hole, we suspected him and his co-accused of the gang because their M.O. (Mudus operandi) tallies. These P.Cs. and H.Cs. continued this thing for a period of half an hour. All the P.Cs. in turn Ahmed Ali, A-5 Murthy (A-6), Vykuntam were near to him and active and applying pressure with the pestle on Botla Chendriga. Ramayya (A-7) also was doing this. Then after half an hour, sweat) came out of his body. Within a short period it stopped again. At the same moment we found that he was not well. I observed that he was not well and in order. The 'Mussal' was immediately taken off. No sooner was it taken off, he fell down unconscious and breathed his last. We are not in a mood, at that time when we saw the scene of his death and without thinking of law, committed a sin to hide the fact and instead of informing the Magistrate, in fear, with the help of P.Cs. and H.Cs. above wrapped him in a rag and took him from the back door of the room behind the police station. The body was taken 2, 3 furlongs and there to safeguard ourselves threw him in a well. At this time S.I. Janardhan Rao (A-3) was not with us as he feared a lot and was unable to walk. He later informed me that he informed to C.I.C.C.S. (A-1) who did not guide him in a better manner. Instead of that he guided in a wrong manner. The time of going behind the P.S. was between 2 a.m. to 3 a.m. (early morning). The time of death was approximately 2-3 a.m. (or less also). It is not 2 to 3. Excuse me. It may he all about 12 midnight (between 12 and 1 a.m.). I am sure it is between 12 midnight and 1 a.m. the body was also disposed of during 12 midnight and 1 a.m.
The next day, on the instruction of C.I.C.C.S. (A-i) to take him to a distant place and to bury him, I and S.f. Janardhanrao (A-3) with the above P. Cs. and H.Cs. went to the same well where we dropped him. This was the second night. The P. Cs. and H.Cs. took off the dead body. We kept the body in a jeep and took him from Khammam road nearly 32 to 33 miles. In between there is a road on the river bed. We stopped the jeep. Then at about 1/2 furlong in between the river, we carried the dead body and there dug the sand of about 1-1/2 feet. As we tried to dig more the sand again began to fill up. We could not dig up more. He was then thrown in and covered with sand. We then returned. I will show you the well into which the body was thrown. Come, I will lead to the place where he has been buried without any clothes on him. His clothes are said to have been thrown by some of the P. Cs. in this well only,
All this fact I have not done with a criminal intention but this was my duty. Only for the sake of detection, I did and that too I have not beat him. It is my bad luck and misfortune that be accidentally expired by heart failure. There are no signs of any injuries on his body except the 'Mussal' injuries. Only because as I am the responsible' Inspector and in my presence the P.Cs. have interrogated him, as such I am also considered to be one of the accused of the case. Sd/ Syed Hassan, Sub-Inspector CCS.
I have explained to Syed Hasan Ali, that heis not bound to make a confession and that if hedoes so, any confession he may make may beused as evidence against him, and I believe thatthis confession was voluntarily made. It was takendown by me and was read over to the personmaking it and admitted by him to be true andthat it contains a full and true account of thestatement made by him.
10. It will be observed that although P. W. 16 was conducting an inquiry under Section 176 Cr. P.C. yet by way of abundant caution, he followed the procedure prescribed by Section 164 Cr. P. C. for recording confessions.
11. The recording of this statement was completed by 11 A.M. P.W. 16 went home and came back to the police station by 2 p.m. By then he learnt that Accused 2 had been taken by some police officers to Vardannapet. (It is necessary to mention here that after P.W. 16 had gone home, the crowd outside the police station became unruly and demanded the production of Accused 2 having come to know that he had made a confession. To prevent the situation from taking an ugly turn, P.W. 31. the Superintendent of Police, had Accused 2 escorted by the Taluk Inspector with specific instructions that the party should remain at Vardannapet Travellers' Bungalow and await the arrival of the Magistrate, P. W. 16). P.W. 16 accompanied by Mr. James the Additional Executive District Magistrate; Dr. Seshagirirao, the Superintendent of the M.G.M. Hospital; Dr. Tilak (P.W. 25), the Civil Assistant Surgeon attached to the M.G.M. Hospital; Adavala Satyanarayana (P.W. 23) who is a labour leader and claims to be a public worker, and one Govinda Rao, started from the police station and reached Vardannapeta in a jeep by 3 p.m.
Accused 2 and the police officers were waiting at the dak bungalow at Vardannapet. All of them then proceeded in two vehicles to a 'vagu' near Nelli Kudur and covering a total distance of about 33 miles, reached it by 5 p.m. This journey was undertaken by P.W. 16 because in Ex. P-40, Accused 2 had stated that the body of Chandriga had been buried there in the bed of the river more than thirty miles away from Warangal. At that place the police brought some local 'panchas' and, in the presence of P. W. 16, the Doctors and all the others. Accused 2 showed a spot near a boulder in the bed of the river. A photograph was taken of that spot. Under the orders of P. W. 16, the spot was dug to a depth of 1-1/2 to 2 feet and; from there were recovered a jaw-bone, a shoulder bone and two smaller bones forming portions of the tibia and fibula besides three pieces of cuticle of hand and feet. They were all seized under a panchanama Ex. P-55- The inquest report was drawn up and that is Ex. P-41. By 9-30 P.M., P. W. 16 went back to the Mathwada police station and there, recorded the statement of P.W. 15 (Botla Veera Mallu) the father of Chandriga, and of P.W. 2 and two others. At midnight Accused 2 took P. W. 16 and the 'panchas' to a well which is about two furlongs away from the police station and from that well a banian (M.O. 2) was recovered. It was seized under a 'panchanama' Ex. P-42.
It will be remembered that in the confessionalstatement Ex. P-40, Accused 2 had stated thatthe body of Chandriga had first been thrown intoa well near the police station and removed from,there the next night to a distant spot. (It mayhe mentioned here that P.W. 15, the father ofChandriga, identified M.O. 2 as the banian of hisson.) On the next day i.e. 30-4-61, P. W. 16examined P.W. 4 (Ponna Venkaiah). That nighthe issued warrants for the arrest of Accused 2 to7 and when they were produced before him bythe Town Inspector he remanded them to judicial custody for fifteen days. On 1-5-61 P. W. 16examined P. Ws. 1, 3 and anotherperson and then sent his reportEx. P-49 to the Executive District Magistrate,Warangal, for necessary action.
12. On a report by P. W. 20 (Ganji Venkatadri), the Mali patel of Kachikal, that some cowherds had informed him that a human skull and some chest bones had been seen by them lying at 'kattukaluva' which is about half a mile from the river-bed from which some bones and cuticle had been recovered two days earlier, P. W, 21. the Head Constable of Kesamundrara, went there, seized the skull and twenty broken ribs under a 'panchanama' Ex. P-54 and handed them over to the Deputy Collector, Warangal.
13. The Circle Inspector of Police, C.I.D., P.W. 33, took up the investigation on 26-5-61 and after examining all the material witnesses and completing the investigation filed a charge sheet against the seven accused on 4-7-61.
14. P. W. 25, (Dr. T.B. G. Tilak) was the Civil Assistant Surgeon in charge of the M.G.M, Hospital, Warangal. at the time. He had accompanied P.W. 16 and others on 20-4-61 to the river near Nelli Kudur where the bones and other things were recovered. On a requisition from the District Medical Officer, Warangal, be examined the bones sent to him and sent his report Ex. P-67. The bones he examined were M. Os. 3 to 5, 10 and 11 and they were (1) Skull with atlas bone in tact and with ten teeth in the upper Jaw; (2) two ribs with vertebrea attached: (3) clavicle (one) and (4) 17 ribs some broken. He could not express any definite opinion regarding the bones and suggested that they might be sent to the Forensic Expert for further examination.
15. P. W. 24 (Dr. I. Bhushna Rao), Professor of Forensic Medicine in the Osmama Medical College, examined the bones recovered at the aforesaid two spots and gave bis opinion that the deceased was a male aged between 24 and 30 years: and that the deceased had died due to fracture of odontoid process of the second cervical vertebra and the slipping of the first cervical vertebra over the second cervical vertebra producing medullary compression. He added that sudden tilting of the head and stretching of the neck and upward blow on the chin, judicial hanging and sudden stretching of the neck backwards may cause the fracture of odontoid process. He was also of the opinion that the lower jaw and the skull belonged to one and the same person. He forwarded the sealed glass in which the skin pieces of the hand and feet along with some hair were found to the Print Bureau.
16 to 32. (After narrating the depositions of some of the witnesses the judgment proceeds).
33. At the close of the evidence of these two witnesses, the Public Prosecutor filed an application before the Sessions Court under Section 288 Criminal Procedure Code stating that since P.Ws. 1 and 2 had resiled from their depositions before the committal Court but had however admitted having given portions of statements which were put to them as Exs. P-1, P-2, P-3, P-8 and P-9, their depositions in the committal court may be treated as substantive, evidence and brought on record under Section 288 Cr. P.C. The learned Sessions Judge dismissed the application on the following reasoning: --
'The first and foremost requisite to allow this petition which is under Section 288 Cr.P.C. is that the court should come to the conclusion that the evidence of P. Ws. 1 and 2 in the committal court was a true one. In re Gurramkonda Chinnabba Vide 1958 Cri LJ 850: (AIR 1958 Andh Pra 443). According to the evidence of P.Ws. 1 and 2 they are previous convicts. I have gone through their earlier statements. In the committal court their version? appeared to he improved ones. Considering the circumstances of this case this petition cannot be allowed. The petition is rejected.'
34. It would thus appear that the learned Judge refused to exorcise the discretion vested in him under Section 288, Cri. P. C. on the ground that even the evidence given by these two witnesses before the committing court, could not be regarded as true because it did not tally with the earlier statements made by them.
35. We have gone through the depositions of these' witnesses in the committal court and we find that on their own showing they had given false statements to the police and to the Magistrate, P. W. 16. When cross-examined in the committal Court, P. W. 1 stated as regards the statement he had given to the Superintendent of Police, which was marked as Ex. P-1 in the committal court and as Ex. P-6 in the Sessions Court, that its contents were partly correct and partly incorrect. He admitted that the allegations in Ex. P-6 concerning Accused 4 were false; likewise the allegations regarding Accused 3 were also false. He added that at the instigation of the Head constable Akbar Hussain he had implicated them in the statement he gave before the Sub Collector. He also stated in the committing Magistrate's Court that he had been directed by the Town Inspector to give a statement to the Sub-Collector in the same terms as Ex. P-6 and he had done so.
36. Similarly P. W. 2 had given very unsatisfactory evidence in the committing court. He had admitted that he had told the Sub Collector that Accused 1 had directed Accused 4 to beat Chandriga but he had explained it away by saying that that statement was false. He had asserted that he had seen only Accused 2, 5, 6 and 7 that night but the others were not there.
37. In view of the prevaricating and inconsistent statements made by P. Ws. 1 and 2 before the trial court as well as before the committal court, in our opinion, the learned Sessions Jndge was not wrong in declining to treat the depositions of P.Ws. 1 and 2 in the committal court as substantive evidence under Section 288, Crl. P. C.
38-77. (After discussing the evidence on RE-cord, the judgment proceeds).
78. It will thus be seen that in this statement (Ex. P-40) Accused 2 had clearly and uneqpivocally admitted his guilt although he attributed to has ill-luck that Chandriga had succumbed to the torture; Accused 3, 5, 6 and 7 were implicated in the torture while Accused 1 was stated to have given instructions that the body should be removed to a distant place and buried there. It is important to note that in this confessional statement Accused 2 did not implicate Accused 4 at all and there is no reference to him throughout that statement.
79. It was, however, contended by the learned counsel for Accused 2 that the confession Ex. P-40 is inadmissible because a Magistrate holding an inquiry under Section 176 Cr. P. C., has no power to record a confession as the scope of that inquiry is to ascertain the cause of death when a person dies whilst in the custody of the police but not to find out who the offender is. We are clearly of opinion that this argument is devoid of force. The terms of the section make it clear that the Magistrate holding such an inquiry is invested with all the powers in conducting it which he would have in holding an inquiry into an offence and shall record the evidence taken by him in any of the manners prescribed by the Criminal Procedure Code, according to the circumstances of the case. Chapter XXV of the Code prescribes the mode of taking and recording evidence in inquiries and trials; and Section 364 which occurs-in that chapter indicates how the examination of the accused is to be recorded.
In the present case in recording Ex. P-40, P.W. 16, the Magistrate, has acted in strict conformity with the provisions of S. 364, Cri. P. C. The questions put by him, the answers given by Accused 2 and the narrative he gave, were taken down-fully and correctly; the statement was read over to Accused 2, admitted by him to be correct and true and thereafter the record was signed: by Accused 2 and the Magistrate. Indeed, the Magistrate went a step further and in his anxiety to be scrupulously fair followed the procedure prescribed by Section 164 Cr. P. C. for the recording of confessions, although what he was recording was not such a confession, as it was not made in the course of an investigation by the police under Chapter XIV of the Code. We have found supra that Ex. P-40 is a voluntary confession made by Accused 2 out of his own free will, and it is therefore, in our opinion, admissible in evidence and may be used for all permissible purposes. If authority were needed for this position, it is to be found in a Division Bench ruling of the Madras High Court in the re Ramaswami, : AIR1953Mad138 and we respectfully agree with the reasoning and the conclusion of Mack, J.
80. Learned counsel for Accused 2 relied on certain observations contained in another Division Bench decision of the Madras High Court in P. Rajangam v. State of Madras, : AIR1959Mad294 . In that case the learned Judges were dealing with two connected applications under Article 226 of the Constitution seeking a writ of certiorari to quash the proceedings relating to an inquiry conducted by one of the Presidency Magistrates in the City of Madras under Section 176 Cr. P. C. read with Police Standing Order No. 157, issued by the Government of Madras, which inquiry had culminated in the filing of complaints against the police officers concerned. In dismissing the Writ Petitions the learned Judges held 'inter alia' that an inquiry under Section 176 Cr. P. C. read with 'P.S.O. No. 157 does not offend the other provisions of the Criminal Procedure Code nor is it violative of Articles 14, 20(3) and 21 of the Constitution; that such an inquiry is nothing more than a fact-finding inquiry and as it does not decide or determine the rights of the parties, the impugned proceedings were not amenable to a writ of certiorari. But the learned counsel relied on the following observation of Ramaswami, J. at page 312 (paragraph 35) of the report and in particular, the portion we have (here into ' ') underlined :
'Bearing these principles in mind, if we examine the instant case, it will be found that the proceedings of the Fifth Presidency Magistratewhich are sought to be quashed by the writ ofcertiorari are not judicial or quasi-judicial proceedings amenable to a writ of certiorari in that those proceedings constitute nothing more than a fact-finding inquiry and have none of the characteristicsof judicial or quasi-judicial proceedings, that it isonly optional for the Magistrate holding the enquiryunder Section 176 to make a report or not, that theobject of the inquiry is nothing more than to furnish materials on which action might be taken or not, that the report by itself would purely be recommendatory and not one effective 'proprio vigore'that it does not dispose of the rights of parties and 'in fact neither the report nor the statements recorded therein would be admissible in evidence in any future proceedings,' Therefore, I find myself in entire agreement with the contention of the learned Advocate-General that in these circumstances a writ of certiorari cannot issue.'
81. It is not necessary for us to consider the correctness of the view of the learned Judges that the proceedings under Section 176 Cr. P.C. are not judicial or quasi-judicial, having regard to the power given to the Magistrate holding such an inquiry to record evidence, and the definition of 'judicial proceeding' in Section 4(m) of the Criminal Procedure Code; but with great respect to the learned Judges, we find it difficult to agree with the dictum that the statements recorded by a Magistrate in the course of an inquiry under Section 176 Cr. P. C., would not be admissible in evidence in any future proceedings. We are unable to see why such statements cannot be treated and used as former statements of witnesses, or as confessions or admissions of accused persons is accordance with and subject to the relevant provisions of the Indian Evidence Act. At any rate, the question of the admissibility of a confession made by a person in the course of an inquiry under Section 176 Cr. P. C., did not directly or indirectly call for decision in that case, and we do not understand the learned Judges as laying down, contrary to the earlier Bench decision of the same court which was not even referred to, that such a confession is inadmissible even if it is free from the taint of involuntariness and is not hit by Section 24 of the Indian Evidence Act.
82. We are therefore of opinion that Ex. P-40 is a valuable piece of evidence against its maker, Accused 2, and can be taken into consideration against his co-accused accused Nos. 1,3,5,6 and 7 under Section 30 of the Evidence Act. So much for Ex. P-40.
83-96. (After discussing the oral testimony of eye-witnesses, the judgment proceeds.)
97. For the foregoing reasons, we are firmly of the view that the learned Sessions Judge was wrong in disbelieving the evidence of P. Ws. 3, 4, 5 and 9. Ex. P. 40, the confession of Accused-2, which we have found to be voluntary and true, lends assurance to the testimony of the above witnesses. In our opinion the prosecution, has succeeded in bringing home the guilt to Accused-2, 3 and 5 to 7.
98. The case of Accused-1 and Accused-4 stands on a different footing and we are unable to disagree with the conclusion reached, by lower court as regards them.
99. We shall now summarise the items of evidence against each of the accused.
100. Accused 1; Admittedly he was notpresent at the police station on the night in question when Chandriga was subjected to torture, asa result of which the man died and he did nothimself take part in disposing of the body. Theevidence of P. Ws. 11 and 12 shows that on thenight of the 24th-25th, Accused-3 and 4 had gonein a truck to the house of Accused-1, but neitherP. W. 11, who acted as a guide nor P. W. 12, thedriver of the truck, states that Accused 3 and 4had actually contacted Accused-1 and spoken tohim. On the contrary P. W. 11 swears that hewas told that Accused-1 was not in the house. Theevidence of these two witnesses does not establishthat Accused-3 and 4 had actually contacted Accused-1 that night, from which it might be inferred that they had sought his instructions as towhat to do with the body of Chandriga.
It is true that in Ex. P. 40, Accused 2 bad stated that the Circle Inspector, Accused-1, had instructed them that the body should be removed to a far-off place and buried, and accordingly the body had been removed from the well to a distant place and buried in the river-bed. Ex. P. 40 is the confession of a co-accused and cannot be used as a substantive piece of evidence against Accused-1, The other items of evidence relied on by the prosecution are the entries made by Accused-1 in the General Diary and in the pocket note-book (Ex.P. 68) to this effect that Chandriga had escapedfrom custody. But these entries must have beenmade on information furnished to him by others,and not out of his own personal knowledge. Wetherefore agree with the learned Sessions Judge(sic) is no legal evidence to connect Accused1 with the abetment of the offence or with thecausing of disappearance of evidence, and thereforehis acquittal will stand.
101. Accused 2. First, there is his own confession Ex. P. 40, which is voluntary and true. Though it was retracted, it finds corroboration in material particulars from the various recoveries made at his instance. There is then the direct evidence of the eyewitness, P. W. 5, and the corroborative evidence of P. W. 9. His plea that he was not at ail present on the night in question at the police station, is demonstrably false in view of the above items of evidence and the entries made in his own hand in the General Diary, Exs. P. 33, 35 and 37.
102. Accused 3: As against him, there is the direct evidence of P. W. 5 and the corroborative evidence of P. W. 9 His attempt to contact Accused-1 on the night of the occurrence is spoken to by P. Ws. 11 and 12. Accused-2's confession (Ex. P. 40) implicates him to the hilt and can be taken into consideration in support of the evidence of P. Ws. 5 and 9. His plea that he was not present at the station on the night in question, is palpably false.
103. Accused 4: In Ex. P. 40, the confession of Accused-2, he is not attributed any part either in the commission of the crime or in the subsequent disposal of the body. He was not connected with the investigation of the property offence which led to the occurrence. P. W. 5's evidence does not involve him in the crime, but on the contrary exonerates him. No doubt P. W. 9 speaks to his presence later at about 1 A.M. on the night in question, but that was some considerable time after the occurrence and does not establish his participation in the crime either as a principal or as an abettor. His acquittal cannot be said to be erroneous.
104. Accused 5: As against this accused, there is the direct evidence of P. Ws. 3, 4 and 5 and the corroborative evidence of P. W. 9. He is implicated in Ex. P. 40, His plea denying his very presence at the police station is a desperate and futile one.
105. Accused 6: Likewise as against this accused, there is the direct evidence of P. Ws. 3, 4 and 5. corroborated by the testimony of P. W. 9. He is implicated in Ex. P. 40. His plea of total denial of even his presence is wholly unacceptable.
106. Accused 7: As against this accused, there is the direct evidence of P. W. 5 and the corroborative testimony of P. W. 9. He is implicated in Ex. P. 40. He denies his very presence at the police station, which denial is demonstrably false.
107. The net result is that while the guilt of Accused 1 and 4 is open to doubt, that of Accused 2, 3 & 5 to 7 has been proved beyond reasonable doubt. The evidence which we have accepted establishes that Accused 5, 6 and 7 had taken an active part in torturing Chandriga, while Accused-2 and 3 had actively abetted the commission of the crime. As regards the disposal of the dead body, the only item of evidence is Ex. P. 40 but that can be used only as against its maker. Accused 2, and cannot ho used as substantive evidence as against any of the other accused.
108. The next question that falls for consideration is the nature of the offence committed by Accused 2, 3 and 5 to 7. While the evidence establishes clearly and clinchingly that Accused 5, 6 and 7 had subjected Chandriga, to torture with a view to extort a confession or information and that Accused-2 and 3 had actively abetted them, it cannot he said with judicial certitude that in doing so, any of the accused could have had the intention or knowledge of causing the death of Chandriga or even of causing grievous hurt to him. All that can be safely predicated is that they had subjected the unfortunate man to torture and in doing so. had voluntarily caused hurt to him. We may point out here that in a case closely similar in the present one, which went up to the Supreme Court (Criminal Appeal No. 142 of 61) wherein the 'modus operandi' employed by the police officers was the same as in this case, their Lordships convicted the accused under Section 330 I. P. C.
109. We would therefore set aside the order of arquittal passed by the court below with regard to Accused-2, 3, 5, 6 and 7 and confirm the order of acquittal as regards Accused-1 and 4. We convict Accused-2 and 3 under Section 330 read with Section 109 I. P. C. and sentence each of them to undergo rigorous imprisonment for three years: and we convict Accused-5, 6 and 7 under Section 330 I. P. C. and sentence each of them to undergo rigorous imprisonment for three years.
110. We further convict Accused-2 under Section 201 I. P. C. and sentence him to undergo rigorous imprisonment for one year. This sentence shall run concurrently with the sentence awarded to him under Section 330 read with Section 109 I. P. C.
111. We uphold the acquittal of Accused-1 and Accused-4.
112. The appeal is allowed to the extent indicated above.
113. Before parting with this case, we wish to observe that torturing suspects with a view to extorting information from them, is a crude, barbarous and reprehensible method of investigating and detecting crime. Those who are entrusted with the duty of enforcing the law, must learn to obey the law. In police investigation as in other matters, the end does not justify the means; the means are as important as the end.