M. Hidayatullah, C.J.
1. The appellant Bharat has been convicted under Section 302 of the Indian Penal Code and sentenced to death by the Sessions Judge, Gorakhpur and his conviction and sentence have been maintained by the High Court of Allahabad, He appeals to this Court by special leave.
2. On the night following; 10th December, 1967, between the hours of 7 and 10 p. m. in Mohalla Basharatpur, P. S Cantt. Gorakhpur, three persons were murdered. They were Shoo Dhan, Smt. Bhagwani and Din Dayal. The appellant is the son of Shoo Dhan and Smt. Bhagwani and Din Dayal was his brother. The appellant was charged with the commission of these offences and has been found guilty and sentenced to death. Shoo Dan had four sons. Of these, deceased Din Dayal was the youngest. Besides the appellant Bharat, there were two other sons Ram Bilas and Mahadeo. Din Dayal used to live with the parents in the family house at Basharatpur. Ram Bilas was also staying in the family, Mahadeo was residing in another house opposite Murarka Mills where he had a shop. Bharat used to live with Mahadeo. Mahadeo and Bharat were married. Mahadeo's wife had given a birth to a child a few days before the occurrence and Bharat's wife had gone over to Mahadeo's house to help.
3. The prosecution case is that Bharat was unemployed and his mother Smt. Bhagwani used to tell him to get employed and also to threaten him that she would give the property to the youngest son Din Dayal who appealed to be the mother's favourite. The prosecution suggests that this was the motive which promoted Bharat to do away with the parents and the Din Dayal. On the night of the 10th Ram Bilas had gone away to the market to make some purchases. The offence was committed on victims who must have been shaping, because all three of them had their heads fractured with blows of pickaxe belonging to the family. There was no evidence of anything having been stolen, nor was there any evidence that any outsider had made an ingress. The evidence disclosed that near about the time of the commission of the offence Bharat was seen in the neighbourhood of the house and boarded a rickshaw from there. The offence was not discovered till after the return of Ram Bilas and on discovering this triple murder, he ran to the house of Sugriva (P. W. 4), Sugriva and one other went to Mahadeo. They woke up Mahadeo. Bharat's wife advised Mahadeo not to go alone to Basharatpur house and asked him instead to go to her parent's house and take people from there. Mahadeo went to the house of Bharat's father-in-law. All the people were at the cinema. He waited, when they returned a car was procured and he returned to Mahadeo's house. Bharat who had also returned from the cinema was with them. He detained them while he himself went into the house and changed his clothes, then got into the car and went to the house of his parents. Bharat is literate and so the first information report was dictated to him and it was signed by Mahadeo and Bharat and was sent to the police station house. Till then, it appeared as if the offence was committed by some outsider. Later the police suspected Bharat and arrested him. Bharat then made a statement about his clothes and they were duly seized. The bushcoat which he was wearing on the night in question had been put by him under a tap. His trousers were found inside a box. The police seized these garments and sent them to the chemical examiner. The bushcoat answered the Benzidine test for blood but it was not confirmed spectroscopically. Later it was confirmed by the Serologist that it was not stained with blood. The trouser was found to be stained with blood, but the original could not be discovered as blood had disintegrated.
4. On the 12th December, 1967, Bharat was placed before a First Class Magistrate for recording his confusion. The Magistrate remanded Bharat to the judicial lock-up and on the 13th he was called from the judicial lock up and was questioned by the Magistrate, whether he wished to confess or not. The Magistrate gave him the usual caution that he need not confess unless he was so minded, that he was confessing before a Magistrate and that the statement would be taken down in writing and used against him, that he should not confess because of any inducement, threat or promise from anyone. To these, Bharat replied that he was aware of these facts and added that he was confessing out of repentance and because he had committed a grave blunder. The confession was then recorded by the Magistrate who appended the usual certificate to it.
5. In the trial before the Court of Session, this confession was produced and has formed the basis of the conviction against the appellant although Bharat retracted it by saying that it was not his confession at all. The learned Sessions Judge and the High Court have found corroboration of the retracted confession in the evidence of motive, the presence of Bharat near the place of occurrence and at the critical time, his clothes being found stained with blood with no explanation from him and his general conduct in charming his clothes before going to the house of his parents after learning that his parents and brother had been murdered. All these were held by the High Court to corroborate the retracted confession and to lend assurance to the truth of that confession.
6. In arguing the appeal, Mr. Mohan Behari Lal naturally attacked the confession first of all. He stated that the Magistrate had omitted to record the time when the accused was produced before him on the 12th December and again the time when the accused was brought from the judicial lock-up to the Court to record his confession. He stated that from this omission, it was impossible to say what period of time the appellant had to reflect over the matter before his confession. He stated that the statutory requirements laid down by rules for recording confessions had not been followed. He also drew our attention to the fact that the appellant stated that he was beaten by the police the night before he was produced before the Magistrate for the first time and that the High Court had noted that this was probably a fact although the High Court wrongly felt that the effect of that beating had passed because of the time given to Bharat to make up his mind about the confession. He, therefore, contended that the confession was not voluntary and that it should not be acted upon. He also stated that a retracted confession is a poor piece of evidence and should be discarded unless it is substantially corroborated not only in general particulars but also against the accused. He cited in support a ruling of this Court reported in Pyare Lal Bhargava v. State of Rajasthan (1), where it is stated that as a general rule of practice it is unsafe to rely upon a confession, much less on a retracted confession unless the court is satisfied that the retracted confession is true and voluntarialy made and has been corroborated in material particulars. Mr. Mohan Behari Lal contended that the retracted confession could not be used unless it was corroborated in all the material particulars and he argued that there was no corroboration of the story of the appellant as disclosed in the confession from the prosecution case.
7. The law as to confession is perhaps too widely stated. Confessions can be acted upon if the Court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted it is safe to rely on it. Indeed a confession, if it in voluntary and true and not made under any inducement or threat or promise, is the most potent piece of evidence against the maker. Retracted confession, however, stands on a slightly footing. As a Privy Council once stated, in India it is rule to find a confession and to find it retracted later. A Court may take into account the retraced confession, but it must look for their reason for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrent its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subaamania Gounden v. The State of Madras. (2).
8. Applying these principles, we have to see whether the confession in the present case was made voluntarily or not. There is some suggestion that the appellant was beaten although the Sub-Inspector who conducted the investigation stoutly denied it. There is no evidence, however, that the appellant was subjected to beating. Indeed the Sub-Inspector stated that his brothers were bent upon giving him a thrashing when they learnt that he was the offender but he prevented it. The appellant also stated quite frankly to the Magistrate that he was making the confession because he had committed a blunder and out of repentance. He was closely questioned before the confession was recorded and the Magistrate gave him all the necessary cautions and informed him that he need not make the confession & that he should not act because of any threat, inducement or promise and also that he was before a Magistrate and the statement would be taken down in writing and used against him. Inspite of all these cautions, Bharat gave the firm reply that he was making the confession and he stated quite clearly that he was doing so out of repentance. We have read the confession and we feel that it is true. The learned Judges in the. High Court as well as the learned Sessions Judge also found that it was voluntary and that it was true and in our opinion rightly.
9. Since the confession was retracted, one has to look around to see whether there is any corroboration to connect the accused with the crime, although not containing the full evidence about the commission of the offence. As we stated already, there is no eye-witness in the case; but there are other pieces of evidence against the accused, of a circumstantial nature which show his complicity. The first is the evidence that he was aggrieved because the mother loved Din Dayal more than him and that he was being reprimanded for not doing any work. This furnished a motive for doing away with that brother and also the partial mother. The father was probably killed because without the father's death, the property would not be inherited by the sons. Then, there is the conduct of the accused in changing his clothes before going to the scene of occurrence. As the High Court rightly pointed out, no son who learns of the death of his parents and brother would wait to change his garments before going to see the dead bodies. His clothes were obviously changed because he had a suspician that they might be found to be stained with blood. His trouser was later found to be stained with blood. The bushcoat had been put under a tap and this also slowed guilty conduct. Further he was seen near the house about the time of the murders boarding a rickshaw and therefore was in a position to commit this offence, and then to have run away. There is no evidence of any theft in the house or ingress by an outsider. On the whole, therefore, the circumstances which have been proved aliunde furnish corroboration for the retracted confession which, as we have stated, we consider to be voluntary and true. In the result, we reject the appeal of the appellant. As regards the sentence there is no mitigating circumstance, because the appellant had committed three murders of his nearest kith and kin and the only penalty would be the penalty of death. The sentence is also accepted. The appeal fails and is dismissed.