1. In this case two women, Musammat Sukhia and Musammat Halki related to one another in this way, that Sukhia is the own sister of Halki's husband, Brahmins by caste, residents of a village, in the Mahoba sub-division of the Hamirpur District, were tried before the Court of Session on the charge of having murdered two little girls, the daughters of their own neighbour and caste-fellow, Madho. They have been found guilty and the case has been referred to us for confirmation of the sentence of death passed by the Sessions Court. The women have submitted to us petitions of appeal, in which they vehemently protest their innocence and we have had the advantage of hearing the case argued by Counsel on their behalf. We may say at once that we have come to the conclusion that the conviction cannot be sustained. The learned Sessions Judge has written a well-considered judgment, in many respects admirably thought out ; but having said this , we feel it incumbent upon us to comment at the very outset on the procedure which he adopted at the trial and on his attitude towards certain statement's by the accused women which constituted the principal (or we might rather say almost the sole) evidence against them. The two women had admitted their guilt in the Court of the Committing Magistrate and it would almost seem from the record as if their plea of 'not guilty' in the Sessions Court took the learned Sessions Judge by surprise. At any rate, he proceeded at once to take in evidence, before a single witness had been examined, the previous statements made by the two women, not only before the Committing Magistrate, but prior to the commencement of the proceedings in the Magistrate's Court when they were examined under Section 164 of the Code of Criminal Procedure. He then examined, and almost cross-examined, the two accused upon these confessions and having done this began to record the prosecution evidence. The Trial Court was certainly contravening the provisions of Section 286 of the Code of Criminal Procedure and, although under Section 342 of the same Code the power given to the Court to examine an accused person is one which may be exercised at any stage of the trial in the discretion of the Court, this provision must not be regarded as in any way superseding the clear directions contained in Section 286 as to the manner in which a trial at Sessions should be commenced. We must point out further that, in our opinion, what is involved in this matter is something more than a mere error of procedure. It indicates a mistaken attitude on the part of the Trial Court towards the entire question of the value to be attached to a retracted confession. It is only very recently, in the case of Dalli v. Emperor 66 Ind. Cas. 427 : 30 A.L.J. 326 : 23 Cr. L.J. 283 : (1922) A.I.R. (A) 233, that his Court has found it necessary to re-affirm a rule of practice upon which it has long insisted. That rule is that, when an accused is on his trial on a capital charge, it is not expedient that the Court should convict him even upon a plea of guilty entered before the Trial Court itself. As a matter of practice, the Court should, in its discretion, put such a plea on one side and proceed to record and consider the evidence, in order to satisfy itself, not merely of the guilt of the accused, but of the precise nature of the offence committed and the appropriate punishment for the same. Now, if this be the proper attitude to take up towards a plea of 'guilty', it is clear enough what the duty of the Court should be when a plea of 'not guilty' is entered by an accused person (and particularly by an accused person in a capital case) after the said accused has admitted his guilt before the Magistrate. It becomes particularly incumbent on the Trial Court to proceed with the hearing of the evidence, to enquire very carefully into the conduct of the Police investigation and the whole circumstances under which the confession of guilt now retracted was obtained. The proper time for taking into consideration such a confession comes after the Court is in. possession of the entire prosecution evidence and can estimate what the effect of that evidence would be, considered apart from any statement which the accused person or persons may from time to time have made. In this particular case, indeed, we feel we cannot leave the subject without adding a word or two regarding one aspect of the matter which has struck us very strongly. We should like the Sessions Judge to realise that, in adopting the irregular procedure on which we are commenting he ran what we can only describe as a terrible risk. It is easily conceivable that these two ignorant peasant women, finding themselves confronted immediately upon their plea of 'not guilty' with the record of confessions previously made by them, might have been seized with a fit of unreasoning terror at the apparently hostile attitude of the Court and might have fallen back hopelessly upon a re-affirmation of the confessions which they desired to re-tract and an appeal to the mercy of the Court. If this had happened in the present case, we are satisfied that the result would have been a really disastrous miscarriage of justice.
2. We propose now to reverse the procedure adopted at the trial and to take into consideration at once the statements of the prosecution witnesses. The following recital of facts will make the evidence (what there is of it) easily intelligible. The two little girls named, Binia and Sumetra, aged, respectively, about eleven years and six or seven years, disappeared from their home sometime in the course of the afternoon or evening of the 12th of October 1921. So far as the evidence goes, their father, Madho, seems to have taken singularly little interest in the matter; but their mother Musammat Ladli spent the following day in fruitless search for her missing daughters. The only information, if it can be called information, which she succeeded in obtaining was from the witness Kamta, to whom we shall refer presently; but on the 14th of October, in the morning, she presented herself at the Police Station, four miles distant from her village, and reported the disappearance of the two girls, saying that she knew nothing whatever as to what had become of them. The investigating Sub-Inspector, Munshi Sheo Ratan Lal, reached the village of Billbai on the morning of the 15th October. He was led astray at first by a false clue which suggested that the mising girls might have wandered off on their own account to attend a certain mela; but by 7 o'clock on the evening of October the 15th the Police, search ing certain rocks in the neighbourhood of the village, discovered the corpses of the unfortunate girls roughly hidden under the brushwood. By the time those corpses were produced before the medical expert, Dr. Manik. Chand, they were in an advanced stage of decomposition. The medical evidence is to the effect that no marks of violence could be traced and certainly no bones were broken. The Medical Officer, therefore, could form no conclusion whatever as to the probable cause of death and, so far as the medical evidence goes, we have no assurance that a murder had been committed at all. It is perhaps not particularly probable, but it is at least conceivable, that the little girls straying too far from the village may have been killed by some wild animal. Against this, however, there is the undoubted fact that the corpses when found had been more or less hidden and that the silver ornaments which the girls were wearing when they left their home had disappeared. On the other hand, again, it is possible that the corpses might have been found and plundered and hidden away after the girls had met with their death by some accident. The investigation dragged on for a full week and more, the Police Officer finding it exceedingly difficult to arrive at any clue. He seems to have had nothing to go upon at the outset beyoud certain information which pointed to the witness, Kamta, as a person who possibly know something about the matter. We do not wish to be in any way unjust to the Sub-Inspector, who had a very difficult and almost hopeless task before him; but we feel bound to say that his own admissions regarding his methods of investigation are not such as to inspire us with very much confidence. At one time or another he seems to have arrested quite a number of residents of the village, in each instance acting upon the vaguest possible suspicion. He has himself admitted that he did not feel it to be in any way inconsistent with his duty to threaten an apparently recalcitrant witness with personal violence in order to extract information from him. We will do him the justice to suppose that he wished the Court to understand that the threats used by him towards the witness, Kamta, were mere bluff, and not intended to be carried into execution; but even then such a method of investigation cannot be passed over without unfavourable remark. Finally, certain information was obtained from Kamta and corroboration of the same, to a certain limited extent, was forthcoming. The ornaments which had been taken from the persons of the girls were eventually recovered, tied up in a dirty rag and more or less hidden in the ground, in a field belonging to this witness, Kamta, in the neighbourhood of a ruined shed which he had at one time used in the said field. The Police, however, believed that the presence of these ornaments in Kamta's field could be connected by evidence with their having at one time been in the possession of the two accused women, Sukhia and Halki. These accused were, therefore, finally arrested and the Investigating Police Officer set out to produce them before a Magistrate, in order that the confessions which he understood they were prepared to make might be duly recorded. It would seem that in the Hamirpur District it has not been found possible to enforce what is undoubtedly a very salutary rule observed in many districts, namely, that the duty of recording all confessions under Section 164 of the Code of Criminal Procedure is laid upon the Magistrate working at head-quarters. The advantage of this rule is that the confessing accused can be at once released from Police custody and placed in the security of the jail lock-up. In this instance we know that the accused women had to be taken a very considerable journey, first by rail and then by road, before they were produced in the Court of the Parganah Officer, then sitting at a village 15 miles from the nearest railway station. Certain statement made by them under these circumstances on the 26th of October, that is to say, 14 days after the death of the two girls, were recorded by the Magistrate and the accused women, necessarily, remanded to Police custody, were taken away.
3. A great deal of the evidence at the trial is directed towards proving facts and circumstances which have no particular bearing on the question of the guilt or innocence of these two women. Putting their own statements on one side there are only three items of evidence to be considered against them.
(1) Kamta deposes that on Wednesday, the 12th October, the day on which thegirls disappeared (he does not say at what hour of the day), he happened to be at the shop of one Ramadhin and, while there, heard a scream as of a child proceeding from a house which the witness spoke of as the house of the accused Sukhia, thougl he immediately admitted that it was not really Sukhia's house at all but that of her brother, Jagannath. According to the evidence of Kamta, of Ramadhin and of Ramadhin's mother, Piari Bahu, this screaming or crying of a child was heard more than once and Kamta and Piari Bhau actually went up to the house and entered the courtyard. They found themselves against an inner door which was closed. Piari Bahu says that she heard nothing inside the house. Kamta says that he heard the voices of some persons whispering inside. However this may be, none of the witnesses made any attempt to pass beyond the closed door or to attract the attention of the persons, whoever they may have been, who were behind that door. We have to consider, first of all, whether these statements can be relied upon at all. The witness, Kamta, has played a very curious part in this case. It seems that he has a local reputation as a medium or clairvoyant. He is apparently able to throw himself into a real or apparent trance and his utterances while in this trance state are supposed by the villagers to be inspired by the goddess Bhawani. Musammat Ladli, the mother of the missing girls, obviously in good faith believes in the possession of these supernatural endowments on the part of Kamta. Her evidence shows that she went to him on the evening of October the 13th and that at her request he managed to throw himself into a trance and gave her certain information about the missing girls. According to Musammat Ladli his statements were quite inconsistent with themselves. He told her that the girls were dead and had been robbed of their ornaments, but afterwards told her that if she would go quietly home the girls would return the same night. Kamta himself, with a naivete which is perhaps not surprising in a witness of his class, seems to take it as a matter of course that he is perfectly aware in his waking moments of what he had been saying while in a state of trance. His own account of what he told Musammat Ladli is not quite the same. If we could be certain that Kamta said what Musammat Ladli puts into his mouth, we should find it very difficult to avoid the suspicion that he knew a great deal more about the disappearance of these two girls than he has ever admitted. It is possible, however, that the man is a mere charlatan and that he was talking at random with a view to impress the woman and keep up his reputation. The Investigating Police Officer, having nothing else to go upon, made an attempt to extract more information from Kamta by getting the man to throw himself once more into the trance state. This time Kamta came out with specific accusations against two residents of the village with whom we are not further concerned. The search of their house led to nothing and there is no reason whatever to supose that Kamta's trance utterances against them had any foundation in fact. It was after this failure that the Sub-Inspector, losing all patience, took it upon himself to threaten Kamta definitely with personal ill-usage unless he would say something more, and under these circumstances the witness, more than a week after the commencement of the Police investigation, came out with this story about the screams heard in Jagannath's house. We have certainly formed a very low opinion of the veracity of Kamta and we should not be prepared to accept any fact as proved upon his bare evidence. The question is whether his evidence, taken in connection with that of Ramadhin and Musammat Piari Bahu, has any substratum of fact. We find it difficult to believe that, if that evidence were in any degree true, the circumstance of screams having been heard inside Jangannath's house on the evening of October the 12th (for the witnesses Ramadhin and Piari Bahu place the occurrence very shortly before sunset on that day) would not have been mentioned to Musammat Ladli in the first instance, while she was wandering about the village making enquiries, or, at any rate, to the Sub-Inspector at any early stage of his investigation. There are, moreover, details in the story told by Piari Bahu and Kamta which the learned Sessions Judge himself has distrusted and which certainly look to us very like what a learned Judge of this Court used to describe as 'padding.' The only explanation which we can think of, consistent with a possible substratum of truth in this story, is one which Kamta himself offered at the close of his examination-in-chief. His explanation was that he had been terrorised into silence by Jagannath and his two brothers.
5. Now, the accused Musammat Halki is the wife of Bharosa, whose two brothers are Jagannath and Mullua. Bharosa is the only one of the three who is married. Musammat Sukhia is a widowed sister of these three men. She does not ordinarily live at Bilbai at all but comes there from time to time to look after certain fields of which she seems to hold the tenancy. She was undoubtedly in Bilbai in the month of October last, but the fact she does not ordinarily reside there is of some significance when we come to consider the suggested motive for the crime. For the present, however, the point we have to make is this; that if Katnta was really being terrorised into silence by Jagannath, Bharosa and Mullua, then these three men knew something from the very beginning about the disappearance of the two little girls and were bestirring themselves to stifle enquiry into that disappearance. The conclusion which seems to follow inevitably is that, either this story of the screams heard in Jagannath's house is a pure invention, which has cropped up somehow or other amongst villagers rendered uncomfortable and almost desperate by the discomforts of a prolonged Police investigation in their midst; or, if there be any substratum of truth, it is evidence pointing towards the guilt, not of these two women whose cases are before us, but of one or more of the male members of that family. This is all we need say about this portion of the prosecution evidence.
(2) The next point against the accused is the solitary statement of a barber woman of the name of Dulari. She says that on the fatal Wednesday evening, October the 12th, shortly before sunset, the accused Sukhia had come to her to have her hair dressed. At that time the two girls Binia and Sumetra were playing in the lane in front of the barber woman's house. As Sukhia went away the two girls followed her up to Jagannath's house, at the door of which the accused Halki was standing. The two women and the two girls then entered the house together. If we could believe this evidence it would certainly be of considerable importance, but We are unable to do so. The learned Sessions Judge himself has practically rejected it, that is to say, he has rejected the only part of it which is of any importance, namely, that part which brings the missing girls inside Jagannatb's house. He has done this mainly on the ground that an examination of the map proved by the Investigating Police Officer has satisfied him that Dulari could not from her own house door have seen what she professes to have done. We might add to this that Dulari, while under cross-examination, admitted herself to be quite painfully short-sighted. She was unable to recognize the faces of the two accused women, where they stood in the dock in front of her. Finally, there is in the case of this evidence, as in the case of that of the group of witnesses of whom we have already spoken, the fact that Dulari made no mention of what she is supposed to have seen until a late stage of the investigation. We feel confident that her evidence, whatever may be the correct explanation of the fact of her having given it, must be put aside as wholly untrustworty.
(3) There is the evidence regarding the recovery of the missing ornaments. A learned Judge of this Court of great experience in criminal matters took occasion, as long ago as the year 1895, to express a very decided opinion as to the small evidential value to be attached to the mere recovery of stolen property from a hiding place pointed out by an accused person, when the hiding place is not in itself such as to involve possession over the articles in question on the part of the person who is supposed to have made the disclosure. We refer to the case of Queen Empress v. Narpat A.W.N. (1885) 229. In the present case, however, the discovery of these ornaments is in itself no evidence whatever against the two women. They were not pointed out by any body; they were found by the Police on searching Kamta's field in the neigh-bourhood of his ruined hut. If their discovery is in itself evidence against any one it is evidence against Kamta. The way in which it is sought to make it evidence against the eccused is this;--The search in Kamta 9 field was conducted upon information given by a cultivator named Antoo. Antoo deposes that he received information as to the probable whereabouts of the ornaments from Mullua, the brother of one accused and brother-in-law of the other. Mullua says that his sister, Sukhia, came to him, confessed herself guilty of the murder of the girls, told him that the missing ornaments were in a certain well and got him to take them out of the well and to hide them in Kamta's field. He then proceeded in the most unscrupulous manner, to set to work through Antoo to get the Police to discover the ornaments where he had put them, presumably in order that they might constitute a serious item of evidence against Kamta. These facts are sufficient in themselves to show that Mullua is an utterly untrustworthy witness and that no importance whatever attaches to the statement he makes against his own sister. As a matter of fact, Mullua broke down in the witness-box in the most conclusive manner possible. He contradicted himself over and over again and finally told the Court in so many words that what he had said against Sukhia was a lie which had been put into his mouth by the Police constables who were attending on the Sub-Inspector at the investigation. We have said enough (sic) show that this item of evidence is almost worse than useless as against the accused women.
6. There remains, therefore, only for us to consider the statements which the two women made on the 26th of October and the fact that they adhered to those statements when they were questioned by the Committing Magistrate on the 5th of November. This latter circumstance does at first blush appear to add very considerably to the weight to be attached to the confessions recorded under Section 164 of the Criminal Procedure Code. We greatly fear, however, that the Committing Magistrate has fallen into an error precisely analogous to that on which we have commented in case of the Sessions Judge. He would have been well-advised in a matter of this sort to have entered upon the examination of the accused women with a peculiarly strict and scrupulous observance of the directions in the Code of riminal Pocedure regarding the examination of accused persons, He should have asked the two women in the first instance rega rding the statements made agairst them by prosecution witnesses and have been careful to ascertain whether they admitted those statements to be true in fact and what explanation, if any, they had. to offer of those statements it they admitted them to be true. Instead of doing this, he confronted the two women at once, each in her turn, with the confessions of the 26th October and simply demanded to know whether those statements had been made by them and whether they were true. Under such circumstances it is scarcely surprising that the two women simply replied in a hopeless spirit that they had made the statements read over to them and that those statements were true. The fact of their doing so does not, under the circumstances, add appreciably to the evidential value of the statements themselves. We now come back to those statements. They seem to us unreal and unconvincing in a very high degree. Take, for instance, the question of motive. Both the women repudiate the suggestion that they had killed the girls for the sake of the ornaments. Musummat Sukhia starts of with a story, of which there is no corroboration to be found any where, as to a quarrel between the girls Binia and Sumetra and another little girl the daughter of Bhorasa and Musammat Halki. She really asks the Court to believe that she and Halki strangled the two girls in a fit of anger brought about by a quarrel of the most trumpery description. She adds certain details which practically give the lie to her own version as to the quarrel. Musammat Halki has something, at any rote, a little more plausible to suggest. She says that her own husband Bharosa had for years been living in adultery with Ladli, the mother of Binia and Sumetra. She suggests that the motive for the murder was revenge on account of this long-standing unfaithfulness. The suggestion is in itself rather thin, in view of the allegation that the intrigue had been going on for years. But in any case the motive is one which would not touch Musammat Sukhia at all, and according to the story told in the confessions, it is Musammat Sukhia who takes the leding part in the commission of the crime. We have already commented upon the circumstances under which the confessions were made.
7. We think that the story told in the confessions is in all probability untrue. In saying this, it is not necessary for us to believe all the allegations against the Investigating Police Officer which the two women have put forward to account for their having made those confessions. It is far easier to believe that after this prolonged enquiry the two women were induced to sacrifice themselves in order to avoid the arrest and prosecution of one or more of the male members of the family. At any rate, it seems to us quite beyond question that these two retracted confessions, practically uncorroborated as they are by anything in the prosecution evidence, do not afford anything like a satisfactory besis for the conviction of the accused.
8. The result is that we allow this appeal, set aside the conviction and sentences, acquit Musammat Sukhia and Musammat Halki of the offence charged and direct that they be released.