1. The appellants Mohammad Sabir, Mustafa and Ashiq Dad have been convicted under Sections 377 and 302/34, Penal Code for having committed sodomy on, and thereafter having murdered, one Babbu, a boy nine years old. They have been sentenced to transportation for life under Section 377 and to death under Section 302, Penal Code. The learned Sessions Judge has referred the case to this Court for confirmation of the death sentences.
2. Babbu deceased was the son of Onkar Nath Kaul, Naib Nazir in the District Judge's Court at Gorakhpur. Onkar Nath Kaul had two sons, Mahendra Nath, 12 years old, and Said Babbu deceased, nine years old. Sabir appellant was at one time a civil Court peon employed in a temporary vacancy and was also in the service of Onkar Nath Kaul and his usual job was to escort Babbu deceased to the school. On 12-6-1948, Onkar Nath Kaul left Gorakhpur on a short visit to Lucknow. Before leaving the place, he instructed Nathe and Sundar, process-servers, to look after bis house and get a Government Thela repaired. On 14th June at about 8 A.m. Nathe took the Thela for repairs to the shop of one Churawan carpenter, which was about 100 paces away from the house of Onkar Nath Kaul. Babbu also accompanied Nathe.
3. The prosecution gtory is that thereafter Sabir appellant came to Onkar Nath Kaul's house at about 9 A.m. and enquired from Mahendra Nath, Onkar Nath Kaul's elder son, as to where Babbu was. Mahendra Nath informed him that Babbu had gone with Nathe to the carpenter's shop. Sabir then went to the carpenter's shop and induced Babbu to go with him to the compound of the Normal School where, according to a previous arrangement, the other two appellants Mustafa and Ashiq Dad joined Sabir. Then the three appellants took the boy to a pit in the compound of the School and all the three committed sodomy on the boy one after the other. Babbu began to cry and threatened to report the matter to his father, whereupon the three accused in order to avoid disclosure, throttled the boy, killed him and threw him in a well nearby and thereafter threw branches and leaves of a tree to cover the dead body.
4. When the boy did not return home, a search was made at about noon. Sabir was questioned and he said that he had left the boy near the house. He also joined in making the search which continued till the afternoon. Then Fasahat Husain, the Central Nazir, was apprised of the fact. He also deputed a few persons to search for the boy. When no trace was to be found till the evening, a report was lodged at the police station at about 7 P.M. In this report it was merely stated that Surendra Nath (alias Babbu), son of Onkar Nath Kaul, aged nine, or ten years, had gone out of his house that day at about 9-30 A.M. to see a Thela being repaired, that he had not returned by then and that it appeared that he had been misdirected somewhere. The police sent an information to all the chowkies by telephone that a search be made for the boy. The boy was not found even the next day.
5. On 16-6-1948 Onkar Nath Kaul returned from Lucknow. Shri Jamuna Singh, Second Officer, Kotwali, then started for making enquiries. At about 11 p. m. he arrested Sabir accused who, on being questioned, gave information about the whereabouts of the dead body of Babbu He was brought to the house of Onkar Nath Kaul. There also he pointed out that the dead body of Babbu bad been thrown in the well in the compound of the Normal School. Sabir thereafter took Onkar Nath Kaul, the Sub-Inspector Jamuna Singh and other persons to the well. A corpse was found in the well and was taken out and identified to be that of Babbu. Mustafa, and Ashiq Dad were then arrested and the dead body was sent for post mortem examination which was held on 17th June.
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6-9. Two days later, that is, on 19th June, Sabir made a confession before a Magistrate in which he narrated the prosecution story with this exception that he did not admit his own part in the murder. He attributed the murder to the other two appellants, though he admitted the guilt of all the three appellants so far as the offence of sodomy was concerned. According to him, when the boy cried because his anus was ruptured and said that on going home he would relate the facts to his Papa and get the appellants beaten, all of them got afraid.
'I moved away a little. Asbiq Dad and Mustafa Husain throttled him and threw him in the well. I was through out seeing this occurrence. I did not raise any shouts. I told them that I shall make A report against them. They said that they would then throttle me as well and throw me in the well.'
10. The three appellants were then prosecuted before the Committing Magistrate. Babir did not retract his confession. To all questions about the crimes that were put to him, he replied that he would make a statement in the Court of Session. With regard to the confession even he said he would make a reply in the Court of Session. Mustafa and Ashiq Dad denied their complicity in the crimes. The Magistrate committed all the three accused to stand their trial in the Court of Session. In that Court Sabir retracted his confession and stated that he did not know anything about the incident. He alleged that the confession had been extorted from him by beating and making him drink liquor. [After discussing the evidence his Lordship proceeded :
11-13. It has been nest urged that the confession made by Sabir was not admissible in evidence against Mustafa and Ashiq Dad. It is urged that Sabir did not implicate himself in the offence of murder, although he implicated the other two co-accused, and as such, even though he inculpated himself in one of the offences, namely, that of sodomy, his confession could not be used at all against his co-accused. We think there is force in this contention.
14. On the question whether the confession of an accused, who does not implicate himself along with the co-accused in all the offences about which it is made, is admissible against the co-accused at all, there is a divergence of opinion in India.
15. It is now well-known that, according to English law, the confession of one co-accused is not at all admissible in evidence against the other accused, whether such a confession implicates all the accused equally or not. See Taylor on Evidence, Section 904. R. v. Turner, (1882) 1 Moo. C. C. 347 and R. v. Blake, (1844) 6 Q. B. 126.
16. The Indian Statute Law, however, has relaxed the strictness of this rule. Section 90, Evidence Act enacts:
''When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation: 'Offence' includes the abetment of, or attempt to commit, the offence.' The section requires that a confession made by one accused may be taken into consideration against another co-accused if (1) all such persons are being tried jointly for the same offence, and (2) the confession 'affects' the confessing accused and the other co-accused.
17. It has been held in some cases that the words 'affecting himself and some other of such persons' in this section do not imply 'equally' affecting. According to this view, if there are more offences than one for which certain persons are being tried jointly, and the confessing accused implicates himself and some other accused in one of such offences and does not implicate himself in the other offence, such a confession can be taken into consideration against the other co-accused so far as that offence is concerned for which the confessing accused implicated himself as well as the other co-accused. See Mirza Zahid Beg v. Emperor, A. I R. 1938 ALL. 91; Mangal Singh v. Emperor, 17 Lab. 547; Mian Khan v. Grown, A. I. R. 1923 Lah. 293.
18. On the other hand, it has been held in some other cases that unless the confession implicates the maker thereof in all the offences in which the other accused are implicated, it cannot be said that it 'affects' himself and some other of the accused. See Periyaswami v. Emperor, A. I. R. 1931 Mad. 177; Empress of India v Ganraj, 2 ALL. 444; In re Govindu Subbaramayya, A. I.R. 1937 Mad. 321.
19. We have, in a recent decision reported in Dr. Jai Nand v. Bex, 1949 ALL. L. J. 60, expressed an agreement with the latter view. In that case we observed:
'The words 'affecting himself and some other of such persons' are important and do suggest that before the confession made by one person can be taken into consideration as against other persons, who are being tried jointly with him for the same offence, it must affect the maker as well as others. If the statement does not affect the maker thereof or only ascribes to him a part not sufficient by itself to justify his conviction for the offence for which he is being jointly tried with others it will not be confession of the nature contemplated by Section 30. ....Where more persons than one are being tried jointly for offences, one of which is major and the other is minor offence, and those offences are inter connected, if the person who makes the confession does not incriminate himself so far as the major offence is concerned, it cannot be said that the confession affects him as well as others. It could not be the intention of the Legislature that if the confession affects the maker thereof only to some extent while it affects the co-accused to a larger extent, it should be used against both of them.'
20. As laid down in Section 13, General Clauses Act, Act X  of 1897, the words in the singular shall include the plural, and so the word 'offence' in this section must be read as including 'offences'. If, therefore, a confession implicates the maker in one out of several offences and implicates the other co-accused in the other offences as well, it can hardly be said that the confession 'affects himself and some other of such persons,' because ex hypothesi the confession does not affect himself and some other persons with respect to some of the offences. The rule, being an exception to the general rule that admission of one co-accused is not admissible against the other co accused must be construed strictly and on such construction the view expressed by us in Jai Nand's case (1949 ALL. L. J. 60) seems to us to be the only reasonable view.
21. We must make it clear, however, that all that is necessary for a confession to be admissible against a co-accused is that the maker should inculpate himself in all the offences in which he implicates the other co-accused, and it is not necessary that he should ascribe to himself as major a part in the commission of the crime as he ascribes to the other co-accused. The explanation to the section makes it clear that an attempt to commit the offence and an abetment of the offence are included in the term 'offence'. So even if the maker implicates himself only in an attempt to commit, or, in the abetment of, the offence, or a minor part in the commission of the offence, the admissibility of the confession against the other accused is not affected.
22. We have seen that in the confession Sabir, though implicating himself and the other two accused in the offence of sodomy, did not implicate himself in the offence of murder. The confession, therefore, is not admissible at all against Mustafa and Ashiq Dad, even so far as the offence of sodomy is concerned. It is, of course, admissible against Mohammad Sabir so far as the offence of sodomy is concerned.
23. The question then is whether the appellants could be convicted of any and, if so, of what offence.
24. Taking up the case of Sabir first, he is clearly guilty of the offence of sodomy under Section 377, Penal Code. His confession, though retracted in the Court of Session, is admissible in evidence against him as it is corroborated in material particulars by the medical evidence and the evidence of other witnesses. He is, therefore, guilty under Section 377, Penal-Code. So far as the offence of murder is concerned, we have got the following, facts proved against him :
1. He was seen with the boy going towards the place where the dead body was found at two stages of the journey.
2. He commits sodomy on the boy shortly before the alleged murder.
3. After the alleged murder, he is seen without the boy near the place where the sodomy was committed and the dead body was found.
4. He points out the dead body and the dead body is recovered in consequence of his pointing out.
25. All this evidence is circumstantial evidence. There is no direct evidence of murder. When we consider the circumstantial evidence, we must remember the rule that no one can be convicted on such evidence unless it is quite incompatible with the innocence of the accused. In the case of Queen Empress v. Hosh Nak, 1941 ALL. L. J. 416, Straight and Duthoit JJ. laid down the tests by which circumstantial evidence must be judged before a conviction can be recorded. Their Lordships observed :
'To prove by circumstantial evidence four things are essential:
1. That the circumstances, from which the conclusion is drawn, be fully established.
2. That all the facts should be consistent with the hypothesis.
3. That the circumstances should be of a conclusive nature and tendency.
4. That the circumstances should, to moral certainty, actually exclude every hypothesis but the one proposed to be proved.'
26. Considered in this light, the pieces of circumstantial evidence proved against Sabir are fully established, they are consistent with the prosecution hypothesis, they are of a conclusive nature and tendency, and exclude every other hypothesis but the one proposed by the prosecution. The only other hypothesis suggested is that which is alleged in the confession. According to the confession Sabir did not commit the murder, but Mustafa and Ashiq Dad committed it in spite of his protest and that when he protested, they threatened to kill him also. The story of Mustafa and Ashiq Dad threatening him is so fantastic that one cannot swallow it. He admits that all the three were afraid when the boy cried and threatened that he would report the matter to his father. He admits that he remained along with the other two accused throughout. He was found by a passer-by shortly after the murder along with the other two accused eating Jamun and he participated in the throwing of the leaves in the well to cover the dead body lest it should be discovered. All this conduct is consistent only with his participation in the crime and belies his statement to the contrary.
27. We are, therefore, of opinion that Sabir was rightly convicted of the offence of murder also.
28. We have then to consider whether there is any evidence against Mustafa and Ashiq Dad either for the offence of sodomy or for the offence of murder, or both.
29. The confession of Sabir being not admissible against them, the only evidence on the record connecting them with the crimes consists of two facts, (i) They were both seen along with Sabir and the boy shortly before the offences of sodomy and murder were committed, and (2) they were seen with Sabir but without the boy shortly after the commission of the offences. These two facts undoubtedly create a strong suspicion that Mustafa and Ashiq Dad participated in the two crimes along with Sabir. But, in our opinion, they are not conclusive and leave room for a reasonable doubt. There are certain factors which cannot be overlooked. There was no previous acquaintance between the deceased and these two appellants. There was no motive for murder except what is suggested by Sabir's confession which is not admissible. It is quite possible, and the possibility is not fantastic, that Sabir might be going with the boy with the intention of committing sodomy on him and he met Mustafa and Ashiq Dad, unwanted persons, in the way. He asked them to stay near the tree and then went alone with the boy to the pit where he committed sodomy, then murdered the boy and threw him in the well and after finishing this he came back to the place where Mustafa and Ashiq Dad were waiting. It must be remembered that there is no evidence on the record that from the Jamun tree, where the three appellants were seen together, a man committing sodomy on a boy in the pit could be seen or the well could be seen. The evidence against Mustafa and Ashiq Dad does not satisfy the test which all circumstantial evidence must satisfy in order that a conviction be based thereupon. In their case there is a reasonable doubt of which the benefit must be given to them.
30. As regards the sentence awarded to Sabir, we are of opinion that there is no reason to inter, fere. It was a case of exceptional moral depravity. It is true that Sabir is a young man of 19 years, but as the learned Sessions Judge has pointed out, the act was committed in a most brutal and inhuman manner, and a deterrent sentence was called for, so that it may be a lesson to others. The maximum punishment provided by law was rightly awarded to him.
31. The result, therefore, is that we dismiss the appeal of Mohammad Sabir and confirm the sentence of death passed upon him. His sentence shall be carried out according to law.
32. We allow the appeal of Mustafa and Ashiq Dad, quash their convictions and sentences and acquit them. They shall be released forthwith unless required in connection with some other case.
33. The reference is accepted in the case of Sabir appellant and rejected in the case of Mustafa and Ashiq Dad appellants.