1. In this case we have come to the conclusion that to some extent, in fact to a large extent, the appeal must be allowed, although it is impossible not to feel that this result leads to an apparent miscarriage of justice, due partly to mishandling by the police, and partly to a fundamental error made by a very experienced and able Judge, who in his ruling on one point has made our task exceptionally difficult. The case, as it came before Sessions, was a difficult and complicated one, and it has been dealt with in a painstaking judgment, which as an analysis of the facts, is an admirable piece of work, although perhaps somewhat too elaborate, and would have been open to little or no exception, if the Judge had not made a fundamental error by admitting in evidence and acting upon a confession in breach of an elementary rule of law with which everybody ought to be familiar. Section 24 provides that a confession by an accused person is irrelevant in a Criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement having reference to the charge against the accused person proceeding from a person in authority.
2. Four out of five persons, originally accused, have been convicted, and now appeal against their conviction for having stealthily and cruelly murdered one Hori, a Kurmi, whose wife was living apart from him, and who was an attractive young woman but unchaste. There can be no doubt that Hori was murdered shortly after the Saturday, 26th January, when he left the village where his wife was living and was seen no more. The motive for the murder obviously, was - there is no conceivable alternative - to get rid of the husband who was persistently endeavouring to get his wife back to his own house. One of the accused was acquitted altogether. Three, Munna Lal Brahman, Fateh Chand and Narain have been sentenced to death mainly on the confession of one of them, namely Munna Lal Brahman which is said to be corroborated in various ways, while the 5th another Munna Lal Mahajan, wealthy zamindar with much influence in the village, has been sentenced to transportation for life for having abetted and encouraged the murder being also proved by clear evidence to have taken a great interest in trying to hush the matter up. The murder, as we have pointed out, wag committed about the end of January. Narain one of the convicted appellants was originally suspected owing to what we think was a false scent deliberately started by the mother of the deceased's wife, and in consequence of this information given by her being discredited, Kishan Lal, a near relative of the deceased man who had accompanied him to where his wife was living made a report on the 8th of February. There can be no doubt that the investigation of the crime, which had undoubtedly been committed, by that time, was neglected and hampered by the conduct of the police, and that the appellant Munna Lal zamindar had a hand in these transactions. It was not until the father of the deceased man an old man nearly blind and doubtless in a state of great grief and indignation as to the fate which had overtaken his son, petitioned the Superintendent of Police and the Circle Inspector was appointed to take charge of the investigation, that anything substantial was done. This new phase began on the 16th of April. But on the 25th of April Munna Lal Brahman made a full and voluntary confession under Section 164 before a Magistrate implicating himself and the other four accused, and The case for the prosecution was built up round this confession and accepted by the Judge and the majority of the assessors.
3. We come to the serious mistake which has boon made. Sohan Lal The Circle Inspector was called at the trial at Sessions on the 3rd of October, and was allowed to say that Munna Lal Brahman confessed to him on the 24th, Muqaddar Ali the original Investigating Officer, whose failure had necessitated the Circle Inspector being called in was allowed on the same day to give the same evidence. This piece of evidence must have been known to Sohan Lal, a man of high position in the police force, and to the Government Pleader, to be a breach of Section 25 of the Evidence Act, and the learned Judge ought instantly to have stopped the witness and the Pleader, and to have excluded the statement from the evidence in the case. He has in fact relied upon it in his judgment. As a result of this inadmissible communication, Munna Lal pointed out to the Circle Inspector in the pra3onoa of several people a place in a stream, 22 miles from the village where Hori had last slept, and 4 or 5 miles from the thana, where he himself found in the water some dilapidated clothes, which have been identified as belonging to the deceased, and which, as far as they can be said to correspond to any description at all, correspond in some particulars to the description which has been given by Kishan Lal of the garments which Hori was wearing. There was also found a light and old gandasa. With this piece of corroboration which they doubtless thought convincing, the police put Munna Lal Brahman to make the voluntary confession which he made before the Magistrate on the 25th April. Sewa Ram, a Kurmi of the village most of the people concerned are Kurmis of the village - was called for the prosecution at the trial to corroborate the first inadmissible confession and the finding of the clothes. He said at the trial that Munna Lal had said to the Inspector that he would point out the place where he, Munna Lal, had killed the deceased, which was another inadmissible confession. But he went on to say in cross-examination that before Munna Lal went to the spot where the clothes were found, he was told by the Inspector that he would be let off which is a promise of Pardon, if he would give true particulars. This piece of evidence by itself is sufficient to make the confession irrelevant under Section 24. It must be recognized by everybody and Judges must never allow themselves to lose sight of the fact, that, whatever other incidents may follow an incident of this kind, an astute Inspector conscious of the circumstance which, by law vitiated the confession is not unlikely to endeavour to cover it up by other incidents and a promise of this kind is a continuing offer. It does not differ from any other bargain which may be made by men in the ordinary course of life. If a man is told by a person in authority that if he gives a true account of the matter he will be pardoned, that is a continuing offer, the thread of which continues unbroken until it is accepted by the confession which completes the bargain, unless there is some circumstance which breaks it so as to show that the inducement no longer operates, and that the person confessing has no longer any hope of gaining anything from the authorities by making a confession. The fact that the Circle Inspector made this offer or promise was denied on oath by the Circle Inspector in answer to the Court. But one is bound to receive with some caution the evidence of an astute witness like the Circle Inspector, who has already given evidence as to a confession which he knows was inadmissible. There was therefore direct conflict of testimony on this point. Unfortunately the learned Judge came to no decision on this conflict. In several places in the course of his judgment he referred to the confession as being clearly voluntary. No doubt what was passing in his mind was the fact that Munna Lal had also alleged that the Inspector Lad beaten him and insulted him and used throats, and the Judge did not believe him. It is not surprising that it should be discredited because if the promise of pardon had been made, the threats would be superfluous, But unfortunately it is necessary to refer again to the case of Khetal v. Emperor A.I.R. 1923 All. 352 in which a member of this Bench endeavoured to point out to Judges trying Sessions cases the necessity of trying this matter with care, and the fact that where there is any evidence of any inducement, it is no answer to say that a confession is voluntary, because it must be voluntary if the parson confessing is acting under the inducement. The section requires the Judge to decide whether it appears to him that there was any inducement. He might have refused to believe Sewa Ram. The accused Munna Lal had been confronted with two formidable witnesses, Mt. Pirani and Jograj who were prepared to make compromising statements against him, and this may have induced him to throw up the sponge, and to entertain the hope that if he did so quickly, he might be made an approver. On the other hand he has also always stoutly alleged that he was promised a pardon, and if this course had been followed by the police and the man made an approver so that his statement could have been closely examined and cross examined at the trial, a complete elucidation of the cage might have been reached. But the learned Judge has unfortunately held that the evidence of this inducement, even if true, does not establish that the inducement led to the confession made before the Magistrate and relied upon by the prosecution, because the accused had already made the first confession, thus using one piece of inadmissible evidence to destroy the in-admissibility of the other. It is necessary to repeat once more, as emphatically as this Court can do, that Sessions Judges must try and master the simple rules for dealing with this question. When the admissibility of a confession depends upon a conclusion as to the truth about conflicting evidence antecedent to the making of the confession and tending to show that it is liable to rejection under Section 24, the trial Judge must make up his mind upon this issue, and decide the question of admissibility before relying upon the contents of the confession. All this seems obvious enough, but the importance of it in this case is emphasised by the fact that two of the assessors expressly based their opinion on their belief in the truth of the confession, which never ought to have formed part of the evidence in the case at all. We have, therefore, been compelled to undertake the difficult task of sifting the evidence afresh, and discarding completely from our minds, directly or indirectly, any influence created by the fact that this confession has formed the basis of the whole decision which we have to review.
4. As against Narain, the only evidence is a statement that Hori left with him to go to some market for the sale of our. We are of opinion that this statement was not only untrue, but was deliberately made with a view to create a false scent in the interests of other persons. Narain is therefore entitled to an acquittal, there being really no evidence against him.
5. With regard to Munna Lal Brahman, on the other hand his guilt is clear. It is conclusively shown against him in consequence of information given by him clothes were found in the stream 22 miles away. This is quite legitimate under Section 27 of the Act. The question at once arises how came he to know this fact. It is an admission of knowledge showing intimate acquaintance by him with some of the circumstances relating to the, disposal of the relics of the deceased. A significant and apparently quite innocent remark made by the witness Sewa Ram about an incident which occurred on their way to the stream shows further intimate acquaintance. Sewa Ram says that when they had got to a certain spot between the police station and the stream, Munna Lal asked that the bullock waggon might be stopped as there was no way to reach the spot by which a bullock cart could go. When at the trial Munna Lal knew that the promise of pardon had been broken, that he had been tricked by the police, mid when he had retracted his confession, lie failed in any way to explain, or to attempt to contradict this piece of evidence, showing his acquaintance with the spot and with the things which were found there. This is a damning piece of evidence against him. Going back to the inception of the case against him, there is evidence which we see no reason to distrust by Mt. Pirani that Munna Lal came with Pateh Chand and took Hari away on the last occasion when he was seen alive. Jograj saw these two men in company with Hari shortly afterwards on the same evening Sewa Ram, who appears to be a perfectly honest witness, says that in his presence Munna Lal Brahman admitted that he had taken Hari away. But what is even more significant is the overwhelming evidence not only that he had obtained the affection of Hari's wife, but that he was determined to prevent her returning to her husband, and had used language suggesting that he was determined to carry this resolve into effect. Hari bad been for a long time trying to get his wife back. There is very strong evidence, not merely of Mt. Pirani but of other witnesses in the village, that Munna Lal was carrying on an intrigue with her. She has admitted that he was the father of the child of whom she expected to be delivered, and although she went back from it at the trial, she stated before the Magistrate that when Hari come for the last time to fetch her Munna hal told her mother in her presence that there would be no return, that he would put an end to the rukhsat, and that subsequently he told her that he had fixed Hari, which she understood to mean 'killed,' and that when she complained, he said that if she told anybody she would be killed. These circumstances are sufficient to justify the conviction, and his appeal must be dismissed.
6. With regard to Pateh Chand the case is far from being so strong, although it is impossible to say that there is no evidence against him which leads to suspicion. It is in his favour that there is no real ground for supposing that he wished to murder Hari. Mt. Pirani, whom we are inclined to believe swears that he also was having an intrigue with this woman of easy virtue, which is quite possible as he was visiting her from time to time, and she was the sister of his wife. Other witnesses speak to the same belief, and as he lived in another village, and was obviously not on anything like the close terms with her that Munna Lal was, there is no reason to suppose that he would have the same incentive for getting rid of his brother-in-law. Accepting the evidence of Mt. Pirani and Jograj, all that there is against him, with one exception, is that he came with Munna Lal the guilty person and fetched Hari away, and was seen shortly afterwards in the company of the deceased and the guilty man. No doubt the guilty man had assistants, probably several. The exception which does create an additional factor in the case against Pateh Chand, is that he perpetuated the story which had been started by Lachhma that Hari had gone to the market with Narain, which certainly is a somewhat suggestive circumstance against him, because if it was untrue - he must have known it was untrue - he could have no motive but a guilty conscience for perpetuating this falsehood, especially as we believe that he was with the deceased and Munna Lal who may have had good reason for trying to conceal that circum-stance. On the whole we have come to the conclusion that he is entitled to the benefit of a reasonable doubt. One cannot say that he may not have been a dupe and an unconscious assistant of Munna Lal. We, therefore, allow his appeal.
7. The result is that the convictions of Munna Lal Zamindar, Narain and Pateh Chand are set aside. They must be acquitted and discharged. The appeal of Munna Lal Brahman is dismissed, his conviction and sentence are confirmed, and the latter must be carried out according to law.