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Emperor Vs. Kehri and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1907)ILR29All434
RespondentKehri and ors.
act no. i (indian evidence act), section 30 - evidence--confession--retracted confession--use of retracted confession as against person making it and as against co-accused. - - i think it well to state at once that the case before us is one in which, if we were to exclude from consideration the statement made by the convict kehri and recorded by a deputy magistrate on the 12th of june 1906, no conviction could follow. the statement is corroborated by other evidence, but most certainly the facts disclosed by that evidence are not of themselves sufficient to support a conviction, i therefore propose to state why, after most prolonged and careful consideration, i am satisfied that that statement is a true and reliable statement. 8. i have no doubt that the police did send for his knox, j.1. this case has been submitted by the sessions court of aligarh for confirmation of sentence of death passed upon kehri, aheria, and two brothers, bansidhar and kanhaia lal. we have also to consider appeals filed by all three convicts and all three are represented in court by the same learned vakils. the learned judge has considered the case in a very long and elaborate judgment, and i do not propose to go into the facts at any great length except as they bear upon the real issue which was raised in appeal before us.2. the fact that ghafur bakhsh, a printer and publisher at agra, and his manager, muhammad ayub, were murdered on the 13th of april 1906, is not denied and is abundantly proved. the questions which i have really to consider are, first whether kehri was or was.....

George Knox, J.

1. This case has been submitted by the Sessions Court of Aligarh for confirmation of sentence of death passed upon Kehri, Aheria, and two brothers, Bansidhar and Kanhaia Lal. We have also to consider appeals filed by all three convicts and all three are represented in Court by the same learned vakils. The learned Judge has considered the case in a very long and elaborate judgment, and I do not propose to go into the facts at any great length except as they bear upon the real issue which was raised in appeal before us.

2. The fact that Ghafur Bakhsh, a printer and publisher at Agra, and his manager, Muhammad Ayub, were murdered on the 13th of April 1906, is not denied and is abundantly proved. The questions which I have really to consider are, first whether Kehri was or was not one of the persons who murdered Ghafur Bakhsh and Muhammad Ayub; secondly, whether Bansidhar and Kanhaia Lal, either or both of them, instigated Kehri to commit the murder above mentioned. I think it well to state at once that the case before us is one in which, if we were to exclude from consideration the statement made by the convict Kehri and recorded by a Deputy Magistrate on the 12th of June 1906, no conviction could follow. The statement is corroborated by other evidence, but most certainly the facts disclosed by that evidence are not of themselves sufficient to support a conviction, I therefore propose to state why, after most prolonged and careful consideration, I am satisfied that that statement is a true and reliable statement. If that statement is true, Kehri was one of the murderers, and Kanhaia Lal and Bansidhar instigated the murder, The statement made was, however, retracted on the 25th July 1906. In the Court of Session and also before us, Kehri says that he was forced to make the statement under severe police pressure, and there is evidence which shows that he was prepared to withdraw, if he did not actually withdraw, it as far back as the 16th and 17th of June. Mr. Satya Chandra, who confined himself to the case of Kehri, contended that as regards Kehri the confession was inadmissible, first, because it was made by Kehri while in police custody, and, secondly, because it was made by Kehri under distinct inducement offered him by the police to make it. Mr. Kedar Nath, who confined his arguments to the cases of Bansidhar and Kanhaia Lal, contended equally strongly that as against his clients the statement having been retracted could not be considered at all, and even if it could be considered, it could not be proof of any facts against his clients and could only at the utmost be used to supplement evidence which in itself and by itself was sufficient to convict them of the offence charged. There being no such evidence on the record, to convict Bansidhar and Kanhaia Lal upon the so-called confession of Kehri would be illegal.

3. I am fully conscious that the fact that the confession was retracted and that independently of it there is no evidence which would be sufficient to convict the accused of the several offences with which they have been charged, makes it necessary to examine the confession most carefully and to consider with equal care the circumstances under which it was made.

4. I will consider first the two objections put forward on behalf of Kehri.

5. The murders were committed on the 13th or 14th April 1906.. Kehri was not arrested until the 10th of June 1906, and the confession was placed on record just two days after his arrest. I find that the arrest took place in Agra. The officer who arrested him was a police officer from the District of Aligarh. Upon his arrest he was not taken to the Agra police station, though that station was within a few paces of the place of arrest; the officer who arrested him, produced him at once before a Magistrate of Agra, asked for a remand and stated that he wished to take the prisoner to appear before the Magistrate of Aligarh. On his way to Aligarh the train would pass Hathras, and the prisoner was undoubtedly taken to Hathras police station on the 11th and not produced in the Aligarh Magistrate's Court before the 12th.

6. Mr. Satya Chandra contended that the above procedure on the part of the arresting officer (especially his acting without consulting the police at Agra and his breaking journey at Hathras) was irregular, and being irregular, open to grave suspicion. He also points to a passage in the evidence given by Abdul Ghafur Khan, the arresting officer, in which he says that when he arrested Kehri and got the remand he wanted Kehri to make a statement. The evidence then continues as follows: 'He said that as the Inspector was investigating he would make his statement to him. On the way to Hathras he asked me to send for his relatives. I did so. I reached Hathras with accused on 11th June, at 2 P.M. The Inspector had not then arrived. He came during the night of the 11th at 8 or 9 P.M. and I put accused before him next day. Neither I nor any of my subordinates ill-treated him.' He maintains that the proper inference to be drawn from this is that the police were between the 10th and the 12th using inducements to make Kehri confess and that the statement made by Kehri on the 12th was made under this inducement. The probability is, he adds} that the inducement was a promise of pardon.

7. I have considered these arguments very carefully. I have also taken into consideration the fact that the Magistrate who recorded the statement appears to have recorded it after satisfying himself that Kehri was not making the statement under any inducement, threat or promise, and also the further fact) that the prisoner had never up to the date of this appeal put forward the plea that he made the statement under the influence of any inducement. Before the committing Magistrate he denied having made any statement; and he added details of vile torture to which both there and in the Court of Session he says he was subjected by the police.

8. I have no doubt that the police did send for his relatives and that he was overpersuaded by his relatives, or by the police, or by both, into making the statement which he did make on the 12th of June, but I am satisfied that he was not duped into it by a promise of pardon, and that what he stated about torture is absolutely untrue. I consider the record as made by the Deputy Magistrate and the evidence of Major Woodwright as conclusive on this point. The probabilities too are against it. This is not the first time that Kehri has been under police arrest. He belongs to a class who are not ignorant of police methods, and I feel sure that if any inducement of pardon had been held out to Kehri he would, on finding that the police were playing him false, have alluded to it on one of the several occasions on which he subsequently did make statements.

9. I do not consider the confession open to exception on the ground that it was made under inducement brought about by torture or by any other irregularity. I fail to find this or any other misconduct on the part of the police.

10. Coming to the statement itself (and I have examined it carefully both with and without the aid of the vakils who appear for the convicts) I do not find in it traces of its being a manufactured story. It is a very long and very clear statement. It is consistent throughout and Kehri most clearly takes upon himself the responsibility of the murder of both the deceased. It is a statement which I consider so probable that I have no alternative but to act upon it as being the truth, at any rate in what concerns Kehri; and find myself asking the question--Is there any provision of law which renders it inadmissible so far as Kehri is concerned? It is true that it was retracted, but the very way in which it was retracted leads to the conclusion that the retracted statements are the improbable and the original statement the probable statement.

11. Giving full weight to the danger of acting upon retracted confessions, as I can find nothing in the law which says that they cannot be used against the person who makes them, I find myself compelled to accept the statement made by Kehri as a true statement which convicts him of the offence of which he is charged. Both the character of the confession and circumstances, under which it was taken indicate to my mind that the confession was a voluntary confession when it was made and that when Kehri says he and Kallan went and killed Ghafur and Muhammad Ayub, he was telling the truth. A prisoner may be convicted on his own confession without any corroborating evidence, and this Court had held that, even when a confession has been retracted, if a Judge believes that that confession contains a true account of that prisoner's connection with the crime, he is bound to act, so far as that prisoner is concerned, on the confession which he believes to be true--Queen-Empress v. Maiku Lal (1897) I.L.R., 20 All., 133. I do not therefore propose to consider further in his case the corroborative evidence beyond saying that there is such evidence. I believe the confession, and this in itself makes it necessary to dismiss the appeal of Kehri.

12. I next proceed to consider the case of the appellants Kanhaia Lal and Bansidhar.

13. Does the law anywhere forbid a Court in this country from considering at all against persons tried jointly for the same offence a confession made by one of such persons affecting himself and the persons who were being tried jointly, when such confession has been subsequently withdrawn? It appears to me that this is a limitation which does not exist in and would have to be introduced into the words used in Section 30 of the Indian Evidence Act, 1872, and that to do so would be not to follow the law as it stands but to legislate. By making the confession, especially where it is made under the protection of a Court, the person who makes the confession has exposed himself to the pains and penalties prescribed for the offence, and we have this guarantee, quantum valeat, for the truth of the statement. It may be a weak guarantee, but it is some guarantee, and I cannot agree that the retraction of the confession, especially if that retraction bears on the face of it indicia of being false, can still further weaken the value which attaches to it when it has once been made. If something said by the prisoner afterwards puts a Court upon inquiry and raises the suspicion that it is inadmissible as a confession that suspicion may prove to be well founded or may engender a doubt and make it safer, to hold that it is inadmissible, and the fact that the prisoner made it together with all contained in it vanishes, so to speak, into 'thin air' and there is no longer any basis, so far as the confession is concerned, for inference of any kind. But if that something so said afterwards by the prisoner turns out to be false, we are thrown back upon the original conclusion that until the contrary is shown the confession is prima facie voluntary and is admissible. Section 30 adds that under the circumstances set out in that section it may be taken into consideration against others, and I agree with what Garth, C.J., laid down in Empress v. Ashootosh Chuckerbutty (1878) I.L.R., 4 Calc., 483, at p. 490 when he says: 'I do not see in what other way it can be taken into consideration than as evidence. There is no provision in the section by which the confession is to be receivable against one prisoner in one way, and against the other prisoner in another way. But although the section does, in my opinion, make the confession admissible in evidence against either prisoner, the weight which ought to be attached to such evidence and the question whether taken by itself, it is sufficient in point of law to justify a conviction is a question for the Judge who tries the case.'

14. He goes on to say: 'A confession by prisoner A which involves the guilt of prisoner B is of itself, unsupported by other testimony, evidence of the weakest possible kind against B. It is simply a statement of a third person not made upon oath or affirmation, and I am of opinion that no Court ought to convict prisoner B upon such evidence.'

15. I accept the first part of this statement as a sound exposition of the law upon the point and one with which I am prepared to agree; but with regard to the second portion, and with the utmost respect to the eminent Judge who delivered it I can only accept it with the reservation that it does not take into sufficient account the sanction which such a statement has from, first, the fact that the confessing prisoner has brought himself within the penalty of the law, and from the further fact that the statement is made in the presence and hearing of the co-accused, and it is therefore too much to say that it is evidence of the weakest possible kind. I go on to consider whether in the confession of Kehri there are any reasons evident upon the face of it which would disentitle that confession from being considered at all. Such a consideration would be the existence of malice on the part of Kehri against either Kanhaia Lal or Bansidhar or against both, the existence of any ground for the inference that the police who conducted the investigation were wrongly interested in establishing a conviction against these men or either of them, or any indication that Kehri was trying to save himself at their expense. I find no trace of any ground for suspicion of this nature. Kehri, if actuated by any motive, may reasonably be supposed to be actuated by motives friendly to his masters. There is not a vestige of any evil motive on the part of the police who conducted the investigation, and Kehri in his confession does not anywhere appear to attempt to save himself at their expense. He does not attribute to them any conduct which is on the face of it absurd or improbable.

16. Is the confession supported by other independent unimpeached testimony in any particular point or points which affect Bansidhar and Kanhaia Lal--Queen v. Mohesh Biswas (1873) 19 W.R., Cr. R., 16? I find that as regards Kanhaia Lal it is corroborated by such testimony in regard to motive on his part, in regard to the meeting between Bansidhar, Kanhaia Lal, Kallan, Kheri and Bhopal (vide testimony of Faiaz Husain) on the 12th of April. There is also the fact that Kanhaia Lal did go to the railway station on the 12th and on the 13th of April. I have examined all the evidence bearing on this by, and in the light of, the criticism applied to it by Mr. Kedar Nath, and I find no difficulty in accepting it. It is, I consider, both independent and unimpeachable. There is the fact that he absconded. In the case of Bansidhar this evidence is not quite so strong and we have not the visit to the railway station. There is the possibility that Kehri may have got into the habit of viewing the two partners as together and of the same mind in all transactions and have thus been led to supposing that Bansidhar must have taken part in an affair of such magnitude affecting the business. This too may have affected the evidence of the other witnesses, notably that of Faiaz Husain. It is at best a weak doubt, but weak or strong I am bound to give him the benefit of it.

17. I would accept the appeal of Bansidhar, set aside the conviction, find him not guilty of the offence with which he is charged and direct his immediate release.

18. Considering then both the statement of Kehri and the independent evidence by which it is corroborated, I consider it proved that Kanhaia Lal did abet the murder of Ghafur Bakhsh and of Muhammad Ayub on the 13th of April 1906.

19. The murder was a deliberate and carefully planned murder, in which there are no extenuating circumstances, and there can be only one sentence.

20. I would dismiss the appeals of Kehri and Kanhaia Lal, confirm the convictions and sentences and direct that the latter be carried out according to law.

Richards, J.

21. Bansidhar and Kanhaia Lal are brothers and carried on the business of printers, book-sellers and publishers at Agra.

22. It is alleged that Bansidhar and Kanhaia Lal instigated the appellant Kehri and a man named Chandan, Aherias by caste, to murder one Ghafur Bakhsh. Ghafur Bakhsh carried on the same business in Agra as the appellants Bansidhar and Kanhaia Lal. The case for the prosecution is that intense enmity sprung up between Bansidhar and Kanhaia Lal on the one side and Ghafur Bakhsh on the other. As the result of this enmity Bansidhar and Kanhaia Lal determined to get rid of Ghafur Bakhsh and conspired with Kehri and Chandan for his murder. In pursuance of this conspiracy Ghafur Bakhsh and his manager Muhammad Ayub were decoyed to a jungle near a place called Pora and there brutally murdered by Chandan, Kehri and two other persons. It is not alleged that Bansidhar or Kanhaia Lal took any part in the actual murder. Notwithstanding the very able way in which each division of the evidence has been criticised by Mr. Kedar Nath, I have no doubt that great bitterness due to trade rivalry did exist between Bansidhar and Kanhaia Lal and the deceased Ghafur Bakhsh. The evidence on this point has been fully dealt with by the learned Sessions Judge, and I deem it unnecessary to refer to this part of the evidence in detail.

23. On the 14th of April 1906, the dead bodies of two men were found near the Railway line in the vicinity of a village called Ahan. There can be no doubt whatever that the corpses were the corpses of Ghafur Bakhsh and Muhammad Ayub. It was not known whose the bodies were at the time, but they were photographed and subsequently recognised. Whoever were the culprits, there is also no doubt that Ghafur Bakhsh and Muhammad Ayub were brutally murdered.

24. A false story was invented that a printing press which belonged to a man named Tota Ram was for sale, and by means of this story Ghafur Bakhsh and Muhammad Ayub were decoyed to the place where they met their death. The deceased left their homes at Agra to go to Pora to negotiate for the purchase of the printing press. This is all clearly proved. The question remains whether the guilt of all or any of the appellants is established. Kehri made his confession shortly after his arrest. He was in the employment of Bansidhar and Kanhaia Lal, and in his confession he states that his employers Bansidhar and Kanhaia Lal asked him to got a man to kill Ghafur Bakhsh; that he went to his own village a place called Ramnagar, about six miles from the spot where the bodies were afterwards discovered, and brought from thence his uncle Chandan; that he produced Chandan before Bansidhar and Kanhaia Lal in Agra; that the false story of the printing press and sale was then concocted, and that eventually Ghafur Bakhsh and Muhammad Ayub on the 13th of April 1906 went from Agra to Pora by train and thence to the jungle where they were murdered by Chandan himself and two other persons, one named Kallan and the other Kundan. He says that subsequently in his presence Kanhaia Lal paid Chandan seven sovereigns of 15 rupees for what he had done and promised to pay him more when the whole thing was hushed up. In this confession Kehri does not say specifically who it was who asked him to get a man to kill Ghafur Bakhsh. His words are: 'Bansidhar and Kanhaia Lal told me in their press that I should bring a man to murder Ghafur.' There is no doubt but that Kehri intended by his confession to implicate both Bansidhar and Kanhaia Lal, but he attributes separate and distinct action to Kanhaia Lal, who, he says, went to the Railway station on two occasions, first, on the 12th April and, secondly, on the 13th, evidently to see that the deceased actually started on their fatal journey. He also alleges that Kanhaia Lal paid Chandan his reward, as also a sum of 1 rupee and 4 rupees to Kehri and Kallan, respectively. He makes no similar allegations against Bansidhar. Apart from the confession of Kehri the direct evidence against Bansidhar and Kanhaia Lal is not very strong. A motive no doubt is established, and the false story which induced the deceased to leave Agra and go to Pora was just such a story as might be invented by Bansidhar and Kanhaia Lal. They knew that Ghafur Bakhsh would be a likely and willing purchaser for a printing press of the description supposed to be on sale. Bansidhar and Kanhaia Lal are much more likely to have concocted such a story than the Aherias Kehri or Chandan. Some weight, but not an undue weight, must be given to the fact that, while it is proved that enmity existed between the appellants Bansidhar and Kanhaia Lal and Ghafur, it is not suggested that either of the deceased had any other enemies in the world. The learned Government Advocate has admitted, as he was bound to admit, that unless the confession of Kehri could be considered the case for the prosecution must fail. Without the confession of Kehri the evidence against all the accused is quite insufficient. This being so, it will be well now to consider whether or not we ought to admit this confession, I feel that this consideration is the most important part of the whole case.

25. Kehri was arrested on the 10th June. His confession was recorded in accordance with law by a Magistrate on the 12th of June. On the 16th or 17th of the same month he placed a petition in the hands of the authorities in which he complained that he had been tortured by the police with a view to his making a statement. On the 25th July Kehri denied that he had made any statement to the Deputy Magistrate, or that he had ever been before him, and he alleged cruel ill-treatment against the police. In his examination at the trial Kehri still denies that he ever made the confession before the Magistrate, and he repeats his allegations of torture against the police.

26. On the 13th of June Kallan was arrested and on the 14th he was placed in the same lock-up as Kehri. Kallan was a fellow servant with Kehri in Bansidhar and Kanhaia Lal's employment. I find that there is no truth in the allegations of cruelty made by Kehri. He made no complaint to the Deputy Magistrate when he made his confession on the 12th June. He made no complaint when he was admitted to jail on the evening of June 12th nor on the morning of the 13th when Major Woodwright saw him. He did complain on the 16th or 17th, and Major Woodwright then examined him, but found nothing that would corroborate his story. Kehri's denials that he made the confession at all to the Deputy Magistrate and that he was brought before him are obviously false. I agree with the learned Judge that Kehri's petition and retraction may probably be traced to the fact that Kallan, his fellow servant, was placed with him in the same lock-up on June 14th. It is then contended on behalf of the accused that the confession appears by the evidence to have been caused by the inducement or promises of the police. Kehri himself never alleged that it was. At the same time we would reject the confession if we found anything to show that any promise or inducement was held out to him. The vakils for the accused strongly urge us to consider on this point the evidence of Abdul Ghaffar Khan and Muhammad Ishaq Khan. The former said: 'When I arrested Kehri and got a remand in Agra on the 10th, I wanted him to make a statement. He said that as the Inspector was investigating he would make his statement to him. On the way to Hathras he asked me to send for his relatives. I did so, '

27. Muhammad Ishaq Khan says: 'It was only on the 12th June I learned that Kehri wished to make a statement. Two of hie friends were there and they said he would tell the truth if he were promised a pardon. I said I could make no promise and that if accused wished to make a statement he could. I told him that power to pardon rested with the Court.'

28. It is urged that we ought to draw the inference from this that the Sub-Inspector of Hathras was holding out to Kehri a promise of pardon, and the confession was wrongly obtained, and therefore irrelevant under Section 24 of the Evidence Act. The Government Advocate on the other hand contends that no such inference should be drawn, that the Sub-Inspector was quite justified in asking a man whom he had arrested to make a statement. He did not ask him to make an untrue statement or any particular statement, and he made no promise, and Muhammad expressly states that he told Kehri's friends that he could not promise a pardon. The Government Advocate further points out that it is not any statement made by Kehri to the police that is offered in evidence, but the confession made to the Deputy Magistrate after Kehri had expressly stated to the Magistrate that he made his confession of his own free will without any inducement, threat or promise.

29. The confession was taken in accordance with law: there is nothing whatever in the confession itself to show that Kehri was making it on account of any promise or inducement. After most careful and anxious consideration, I have come to the conclusion that there is nothing in the confession or the evidence to 'make it appear' to us that the making of Kehri's confession was caused by any inducement, threat or promise. This being so the confession is relevant and must be taken into consideration, not only as against Kehri but also as against Bansidhar and Kanhaia Lal. Later on I will deal with the question how the confession ought to be considered with regard to each of the appellants.

30. The case for the prosecution is that the false story about the press was told to Ghafur by Chandan, the uncle of Kehri. Kehri in his confession says that it was Chandan who told the story. The evidence of Riaz Bakhsh and Faiyaz Husain is that a stranger who gave his name as Bhopal came and told the story to Ghafur. The prosecution of course say that the man who called himself Bhopal was Chandan. There is some discrepancy between the evidence of these two witnesses and the confession of Kehri. Kehri says that Chandan came to Agra, had an interview with Ghafur, went away for three days and then returned, and after two or three days' stay in Agra took away the deceased. Both Riaz Bakhsh and Faiyaz Husain only speak of Bhopal corning on the 12th and 13th. Faiyaz Husain says he did not come before. The two different accounts are not irreconcilable because Bhopal might have come on the occasion mentioned by Kehri without either Riaz Bakhsh or Faiyaz Husain's knowing of it. The point is only important as a test of the validity of Kohri's confession, because I have not the slightest doubt, apart altogether from the confession, that a false story about the press was told to Ghafur by a strange man who called himself Bhopal. We will now consider whether the prosecution have proved the identity of Chandan. The prosecution relies first on the description given from the first of the stranger who gave the name Bhopal. This coincides with the description of Chandan. Then comes the evidence that Kehri visited Chandan at their village Ramnagar; that they left the village together, and there is strong evidence that Chandan was seen in Agra about the 12th or 13th of April: it is also proved that when Chandan returned to Ramnagar he had money and was able to redeem ornaments and purchase grain; lastly, there is the undoubted fact that Chandan has absconded. If we believe the confession of Kehri, we can have no doubt that Chandan and the man who gave his name as Bhopal were one and the same person. Kehri in his confession never mentions the name Bhopal. This does not at all show that the men were the same, perhaps rather the contrary. If, however, the confession was false and suggested by the police, it is hard to believe that Kehri would not have said that the murderer was Bhopal or that Chandan had given the name Bhopal. There is another discrepancy in the details of the story told by Kehri and by some of the witnesses for the prosecution. Kehri says (apparently speaking of the visit to the Railway station on the 12th when the train was missed): 'When we were going to the station Ghafur met an old man * * * and Ghafur had told him to tell his son to send paper cover to the station.' There is some inaccuracy about the translation. It would seem that what Kehri said was that Chandan had told Kanhaia Lal, that Ghafur had met the old man. This is much more probable, because of course Kehri was not going to the station with Chandan and Ghafur. Nevertheless the incident of meeting the old man and sending for the paper cover is represented as having taken place on the 12th and not on the 13th by him. Khwaja Bakhsh distinctly says that the incident took place on the 18th, and Ata-ullah makes it quite clear that the incident, if it happened at all, happened on the 13th.

31. It may be that Kehri made a mistake in his confession about the day on which this happened. It is also possible that the Deputy Magistrate in recording the long statement mistook Kehri's meaning. The discrepancy certainly exists and has not been explained. Male Khan, who is alleged to be the old man whom Ghafur met, says that Ghafur did ask him to tell his son to send his prayer book and that he did so. He does not mention the date, This witness was considered a very Hostile witness by the prosecution. He denied the rest of the statement he made before the committing Magistrate and his prosecution for false evidence has been ordered. There is also some discrepancy as to the dates of Chandan's departure and return to his village Ramnagar. This uncertainty as to dates is almost universal in this country, so much so that one might almost suspect a case when the dates fitted in too well. The question is, do the several discrepancies I have mentioned cast such suspicion on the confession of Kehri as to make me disbelieve it, or any rate feel that I ought not to act on it

32. The circumstances mentioned in the confession could not possibly have been invented by the police. Kehri was on the best of terms with his employers Bansidhar and Kanhaia Lal. There is not the smallest reason why he should have implicated them unless he was compelled to do so by the police. Mr. Kedar Nath has told us that he was employed by Bansidhar and Kanhaia Lal to defend Kallan, and the petition of appeal of Kehri is signed by Mr. Kedar Nath as well as Mr. Satya Chandra. The confession of Kehri in part is corroborated by direct evidence, some of it absolutely uncontroverted; it is also corroborated by certain facts and circumstances. After careful consideration I have come to the conclusion that the confession of Kehri is substantially true.

33. The next question is how far it can or ought to be used against the several accused. Kehri confessed himself to be one of the actual murderers of Ghafur Bakhsh and Muhammad Ayub; his confession affected the other accused who were being tried for the same offence, and Section 30 of the Evidence Act enacts that such a confession under such circumstances may be taken into consideration against the person who makes the confession and his co-accused. Section 3 of the Evidence Act explains or defines the expression 'proved' as follows: 'A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.' I agree with the Full Bench decision in the case of Empress v. Ashootosh Chuckerbutty that the meaning of the legislative enactment in Section 30 of the Evidence Act that a confession may be taken into consideration by the Court is that the Court may treat the confession in the circumstances provided for by the section as evidence. The weight to be given to such evidence and the way in which the Court ought to scrutinize such evidence is another matter depending upon the particular circumstances of every case, but in all cases the Court should approach the consideration of such evidence with the greatest caution and with at least the caution with which the Courts have always approached the consideration of the evidence of an accomplice or informer. In the end, it seems to me, that the question which the court must ask itself is, do we believe the confession? It is urged on behalf of the appellants 2 and 3 that, if the Court were to believe all the evidence that has been given against these appellants other than the confession of Kehri, they could not be convicted, and that this being the case the confession of Kehri, cannot be used to supply the missing links in the chain of the evidence, and a passage in the judgment of Jackson, J. in the case I have just referred to is quoted in support., The learned Judge says, at p. 491 of the report: 'In my opinion the confession spoken of in Section 30 of the Evidence. Act to put the intention of the Legislature into a common English legal phrase, is evidence... but I think at the same time it is not singly sufficient to support a conviction, that it is to say, an accused person other than he who has confessed cannot lawfully be convicted upon such confession alone, nor in my opinion ought he to be convicted on the ground of such confession corroborated by circumstantial evidence unless the circumstances constituting corroboration would, if believed to exist, themselves support a conviction.'

34. Now in the present case, if we believe the evidence, it is proved that appellants 2 and 3 had a motive for getting rid of the deceased. It is proved that the deceased was murdered by a person in their employment with the assistance of other persons. It is proved that the employe was on the best terms with his employers, and that he had any quarrel with the deceased other than the quarrel of his employers is not suggested. It is proved that the murder was committed for a reward given to the murderers as the wage for the act, and there is evidence that one of the murderers, not the employe, was seen with the two appellants shortly before the murder was committed. Now I think it must be admitted that all these facts, even if believed, would not warrant the conviction of the appellants 2 and 3. The missing link in the chain of the evidence is that there is, apart from the confession, no evidence to show that the appellants 2 and 3, or either of them, instigated the servant or any one else to commit the murder, nor is there any evidence to show that the reward which was paid for the murder was paid by the appellants 2 and 3 or either of them. Can the missing links be supplied by the consideration of, or, as I prefer to call it, the evidence of the confession of Kehri? This High Court has decided that an accused person can be convicted on the unsupported evidence of an approver. I can imagine many cases in which it would be impossible for the Court to disbelieve a confession, and I can see no reason why a Court could not legally convict an accused person on the unsupported evidence afforded by the confession of a co accused. At the same time I think that it is very seldom that a Court would or ought to convict on the unsupported evidence afforded by the confession of a co-accused or the evidence given by an accomplice. At the same time I cannot agree with the dictum of Jackson, J., in so far as he says in the passage quoted that such a conviction would be unlawful.

35. As I have already said, I believe that the confession of Kehri is substantially true. Taken as a whole, it is amply corroborated by the other evidence in the case. A motive has been proved against Bansidhar and Kanhaia Lal, and Kehri, their servant, has confessed to having taken part in the actual murder. I feel that I am bound to act on the confession. I have already pointed out that the evidence against Bansidhar is not the same as against Kanhaia Lal. I have very little doubt that he knew of and approved of the murder, but I do not think that it would be safe to convict him. I would therefore dismiss the appeals of Kehri and Kanhaia Lal and acquit Bansidhar.

36. The appeal of Bansidhar is admitted. The conviction and sentence in his case are set aside. The appeals of Kehri and Kanhaia Lal are dismissed; the conviction and are confirmed; and we direct that the latter be carried out according to law.

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