1. Shiam Lal, Musaddi Lal, Jagat Narain, Bam Behari Lal alias Behari Lal and J wala, accused, were tried in the Court of the Sessions Judge of Etawah under Section 302 of the Indian Penal Code. The charge against them was that they had murdered one Musammat Pista. The learned Sessions Judge found all the five accused appellants guilty. He has sentenced Shiam Lal and Musaddi Lal to death, while the other three appellants have been given a sentence of transportation for life. All the five appellants have preferred appeals against their convictions and the record of the case has also been sent to this Court by the learned Sessions Judge for confirmation of the death sentence.
2. Shiam Lal was the patwari of village Chhapora and some other villages. Jagat Narain is his brother. They have another brother whose name is Sheo Narain, Bam Behari Lal is the father of Shiam Lal and his brothers, while the accused Musaddi Lal is their maternal uncle. Bam Behari Lal had a brother named Lachhman Prasad. Musammat Pista deceased was the widow of Lachhman Prasad. The learned Sessions Judge has found that the husband of Musammat Pista died about 20 or 25 years ago. All these four accused are Kayesthas, while Jwala, appellant No. 5, is a Kachhi by caste, and the prosecution has not established how this man Jwala is connected either as a servant or as a tenant with the family of Shiam Lal accused.
3. The prosecution story briefly put may be stated to be as follows:
4. Shiam Lal, his brothers and their father live in one and the same house. Lachhman Prasad's widow Musammat Pista also used to live with them. She was a woman of loose character. She had illicit connection with Musaddi Lal, appellant. After that she contracted illicit intimacy with one Ram Prasad Kahar and became pregnant. A sister of Shiam Lal was to be married and the family became apprehensive that if the news about Musammat Pista's being in family way spread abroad, the proposed marriage of the sister of Shiam Lal may not take place, and it is also alleged that this was the reason why the members of the family decided to kill Musammat Pista. The story goes that on the night between March 9 and 10, 1934, Jwala appellant was working in his field along with his partner Bhadain. At about 10 p.m. Jagat Narain appellant went to Jwala and told him that he was wanted by Shiam Lal. Jwala went to the house of Shiam Lal accompanied by Jagat Narain and there found Musammat Pista in an unconscious state. Shiam Lal told him that he had throttled Musammat Pista with the result that she had become unconscious. Jwala was further told the reason as to why it had become necessary to finish Musammat Pista. Jwala was taken in confidence and he was told by Shiam Lal that it was their intention to take Musammat Pista outside and then murder her and that he was the right person to be of help. He did not agree to the proposal but somehow or other he went along with the other appellants. The story for the prosecution is that the body of Musammat Pista was taken out of the house to a place near a well which is at a distance of about six furlongs from the house of Shiam Lal and there Jwala was asked to murder Musammat Pista but he declined to take any part, whereupon the other accused murdered her. She was, it is alleged, in the habit of smoking and Shiam Lal made a statement that if her hands were not cut off she might be identified when her fingers were found stained with nicotine. On account of this both her hands were cut off and severe blows were given with a chopper on her face so that she might not be identified. Then her dead body was thrown in a well and after this Twala and all the other appellants left the place and went to their respective houses. On the morning of March 11, at about 8 or 9 a.m. Allah Din chaukidar was informed by one Rikkhu that he suspected that there was something in the well, because he had seen blood stains near by which had been scraped. The chaukidar went to the well taking with him Jwala accused appellant No. 5 and several other villagers. One of them was asked to go into the well and then it was discovered that there was a body of a woman inside. Thereupon the chaukidar went to the thana which is at a distance of about three miles and made a report which is printed at page 5. In this report he stated that Rikkohu had noticed some blood marks on the platform of a kachcha well and had also seen that an attempt had been made to scrape some of these marks with a khurpi, that thereupon he went to this well and saw some blood stains and that Kishora Chamar was asked to go into the well and he found that there was a dead body of a woman. After this report had been recorded the chaukidar proceeded to the village and then in his presence the dead body of a woman was recovered from there. As a result of the Police investigation all the five appellants were arrested. For the purposes of this case it is necessary to record here that Jwala accused was arrested on March 14, 1934. On March 15, 1934, Jwala appellant was produced before a Magistrate who sent him to the Jail and he was produced before him on the 16th when he made a confession which was subsequently retracted.
5. All the accused persons denied the charge. The defence of the first four appellants was that they did not murder Musammat Pista, and it was said that she had gone to another village and the suggestion thrown was that she may have been murdered by some body else. The fifth appellant Jwala stated that the confession which he is said to have made before the Magistrate was not made by him but the Magistrate wrote what he liked. Shiam Lal appellant had stated in his defence that he had enmity with the villagers who were all against him and had made a complaint against him to the Sub-Divisional Magistrate, the result of which was that he was dismissed from the service.
6. The learned Sessions Judge found that the prosecution evidence satisfactorily proved the case against all the appellants, and, therefore, he convicted them. The question which we have to consider is whether the prosecution evidence which has been produced in this case makes out a case against the five appellants.
7. We have heard the arguments of the learned Counsel appearing for the appellants at great length. The learned, Sessions Judge has written a very lengthy judgment dealing with the evidence produced in the case, and it is necessary that we should briefly state what evidence there is on behalf of the prosecution and whether it is worthy of credit.
8. In addition to the retracted confession of the accused Jwala, the prosecution has produced other evidence with a view to corroborate this confession. We propose to deal very briefly with that. (After examining the evidence of the witnessss His Lordship proceeded). There remains the retracted confession of Jwala appellant. The question for our consideration is whether reliance can be placed on that confession. We have to bear in mind the fact that the confession has been retracted. A retracted confession may be used against the man who has made it; but its value as a piece of evidence against other accused is almost nil. Unless there is satisfactory evidence which would support the confession, no Court would be justified in basing a conviction on the strength of a retracted confession. In the present case a careful perusal of the confession shows that it is no confession at all. The man takes particular care at every stage to show that he did not take part in the murder. If we are to believe the confession, then it would appear that there was only one object with which it was made and that was that there was a desire on the part of Shiam Lal and the others to have a witness who might depose against them in order to implicate them. The story of the witness that he was called by Shiam Lal at 10 o'clock to his house is highly improbable able and cannot be accepted. It appears to us that the learned Sessions Judge in placing reliance on the prosecution evidence did not consider this aspect of the case. No evidence has been produced to show that Shiam Lal and Jwala were on friendly terms with each other. It is not suggested that the services of Jwala were requisitioned for a reward. Nothing is suggested to show why Shiam Lal all of a sudden should have taken into his head to summon Jwala after he had almost killed Musammat Pista himself by throttling her. It is highly improbable that Shiam Lal and others could have sent for this accused Jwala for getting his help. If the case had been that here was friendship between Jwala and Shiam Lal and that Shiam Lal had previously arranged to get help of Jwala, we could have very well understood this evidence to the effect hat he was called at 10 o'clock at night. But it is highly improbable that without knowing whether Jwala would agree to the proposal, Shiam Lal and other members of his family should have invited Jwala and told him everything without satisfying themselves whether he will keep the matter secret. We are, therefore, clearly of opinion that this confession made by Jwala is not a true one.
9. On a consideration of the entire evidence produced in the case we are of opinion that the prosecution has entirely failed to make out a case against any of the appellants. We have to take into consideration the fact that it is proved that there exists enmity between the villagers and Shiam Lal and his family. It is not necessary for us to decide whether the story related by the accused is true or whether the suggestions made on their behalf are correct. But we cannot lose sight of the fact that it is equally probable that owing to the existence of this enmity the villagers or some of them might have done away with Musammat Pista when she was out of her house. We hold that the charge against the appellants is not proved.
10. We accordingly allow this appeal, set aside the convictions of all the accused and acquit them and direct that they be set at liberty immediately.