1. These are two criminal appeals. Cri. Appeal No. 191/61 is by the original accused No. 1 and Criminal Appeal no. 197/1961 is by the original accused No. 2 in Sessions Case No. 30 of 1960, decided by the learned Sessions Judge of Broach. That case was against four accused persons, and the two present appellants, who were accused Nos. 1 and 2 were convicted under Section 302 read, with Section 34, Indian Penal Code, for having committed the murder of one Shantilal Bhagwandas of Simartha at about 5-30 P. M. on 19-3-60. Accused Nos. 3 and 4 were acquitted by the learned Sessions Judge.
2. The prosecution case was that accused No. 1 was in the service of the deceased Shantilal for seven years and that on account of certain, suspicion against accused No. 1, deceased Shantilal removed him from service. On this account according to the prosecution case, accused No. 1 conspired with accused No. 2 and others to encompass the death of Shantilal. According to the prosecution, on 19-3-60 when the deceased Shantilal had gone on his bicycle to visit a neighboring village and when he was returning home, he was way-laid and murdered by accused Nos. 1 and 2 and others. As he did not return home, his relatives became anxious and searched for him, His dead body was recovered on 21-3-60, which was taken out of a, well and identified. There were injuries, on the head and the left leg was completely cut, .... Investigation then continued' and accused No 1 was arrested on 4-4-60 at 9 A.M. and accused No. 2 was arrested, on 5-4-60 at 6 P. M. Accused No. 2 was taken on remand in police custody till 9-4-60. On 9-4-60 he was sent back to the judicial custody with a request to the Taluka Executive Magistrate to record his confession. He was produced before the Taluka Executive Magistrate on 13-4-60 at about 12 noon and his confession was recorded at 4 p.m. on the same day. After the completion of the investigation, both' the accused were prosecuted and committed to the Sessions Court for trial.
3. At the Sessions trial, the learned Sessions Judges relied only on certain items of evidence and rejected the other items of the prosecution evidence. As .against accused No, 2 he relied on the confession said to have been made by him to. the Taluka Executive Magistrate, on 13-4-60.' In addition he relied on the fact that a wrist watch. Article 3, said to be of the deceased, was found on his person when he was arrested. - In addition, reliance was placed on the evidence' that 'accused' No. 1 had a strong motive to commit the murder of Shantilal. Accused No; 2 is said to have made a statement before the police and the Panchas' that he would show a pen of Shantilal hidden by him, and accordingly, a fountain-pen. Article 9, was discovered. As regards accused No. 2, the learned Judge relied on Articles 6, 7, 9 and 12. Article 6 consists of half burnt plants, of Juwar,; Article 7 is a piece of Bhindi string, Article 9 is a fountain pen known as 'Pilot Pen'' made in Japan and. Article 12 is ashes of burnt clothes and piece of a gunny bag. He also relied on the evidence of his subsequent conduct. As regards accused No. 1 he relied on the confession made by accused No. 2 and, in addition, he relied on the evidence of motive and the evidence that he had made a statement before the police and the Panchas that he would discover the shoes of the deceased and that accordingly the shoes and a leather piece out of a shoe namely Articles 4 and 5 were discovered. The rest of evidence adduced by the prosecution was rejected by the learned Sessions Judge as unreliable and not impressive.
4. The judgment of conviction is founded on these pieces of evidence. The finding of the learned Sessions Judge that Shantilal is dead and that he died as a result of the injuries inflicted on him is not challenged by the learned counsel for either of the appellants. The learned counsel of the appellants have challenged the finding of the learned Judge that the guilt of accused Nos. I and 2 is proved by the items of evidence already set out above, and we shall consider these items of evidence. We shall first consider the confession of accused No. 2. He was arrested on 5-4-60 at 6 A. M. by one Pratapsing, P. S. I. of Jambusar in the village of Sindhav, and he was sent to the P. S. I. at Amod at 10 A. M. At the time of his arrest, a wrist watch was found on him. He was taken on remand till 9-4-60. On 9-4-60, he was sent to the Judicial Magistrate, and on that day the P. S. I. also wrote a letter to the Judicial Magistrate and also to the Taluka Executive Magistrate requesting that a confessional statement of accused No. 2 should be taken. It appear that the Taluka Executive' Magistrate wanted accused No. 2 to be produced on 13-4-60 and not earlier. At 12 noon on 13-4-60. accused No. 2 was 'produced before the Taluka Executive' Magistrate Mr. Pandya, P. W. 22. The Magistrate has deposed that he asked the police guard to go away and put the accused in the custody of his peon Shamsher Gulab. The Magistrate then told the accused that he was not in police custody and that if the wanted to say anything of his own accord; 'he' 'should say. The Magistrate also explained to the accused at that time that whatever he would 'tell him would be1 used as evidence-against him at the trial. The Magistrate examined his body but did not find any mark of injury on him. The Magistrate then gave him time till 4 P, M, to cool down. The Magistrate also asked accused No. 2 whether he was given any threat or promise by the police or was in any way compel-led 'to confess. But the accused replied that there was no such thing and that he had come to confess voluntarily. The accused was called at' 4 P. M. and before that the Magistrate noted down all the questions and answers asked to him in the confession. At 4 P. M. the Magistrate again explained to, the accused that he was not bound to make a confession and that if he made any, it will -be used as evidence against him. The accused then replied that he wanted to confess voluntarily. Then the Magistrate put certain questions regarding the confession and recorded his replies and read the confession to him. The accused admitted the contents of the confession. and the Magistrate took the signature of the accused on the confession.
5. At the Sessions trial, it was the case of accused No. 2 that he had been tortured by being made to sleep on an ice slab, that promise of payment of Rs. 5000/- was made to him and it was also his case that in fact he made no statement before the Taluka Magistrate. Section 24 of the Indian Evidence Act' requires the proof of inducement, threat or promise of the type as mentioned in that section. In cases like this, it is easy for an accused person to make allegations' against the police, and at the same time it is difficult for an accused person to prove the allegations made by him even if they are true. But in this particular case, it must be observed that the accused was in police custody for about four days, and in these circumstances, it would not be unreasonable to hold that a promise may have been made to the accused during the time he was in police custody. In such cases, the mere fact that a promise had been made to an accused person when he was in police custody does not technically make the confession involuntary. In such a case, we have to look at the provisions of Section 28 of the Evidence Act, which provides that if such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. Having this section in view, various High Courts have issued criminal circulars as to the manner of recording confessions and as to the precautions to be taken before recording the confessions. The important instruction given is that time for reflection of at least 24 hours should be given. In Sarwan Singh v. State of Punjab, (S) AIR 1957 SC 637, it' has been observed by their Lordships that speaking generally at least 24 hours time for reflection should be given and that in some cases even more time may be necessary. But the question whether a confession is voluntary or not is always a question' of fact, and there is no rule of law that if a certain period is not given for reflection that itself Would be sufficient to rule out the confession. But at the same time all 'the factors and all the circumstances of the case including the important factor of the time given for reflection must be considered before deciding whether the Court is satisfied that 'in its opinion the impression caused by any inducement, threat or promise has been fully, removed as provided in Section 28. . It is therefore necessary to first see whether the Magistrate who recorded the confession has followed the necessary directions and whether as a result of what, the learned Magistrate has done, the Court can see that the impression if any caused by any inducement, threat or promise has been fully removed. In the instant case, we find it difficult to' say that the requirements of Section 28 of the Evidence Act have been satisfied having regard to the following circumstances:
(1) Only four hours were given for reflection.
(2) There is no admissible evidence to show where the accused was between 8 A. M. and 12 noon on 13-4-60.
(3) The confession was not recorded by the Jambusar Magistrate; where the accused was in police custody, but the accused was sent to have bis confession recorded by the Taluka Magistrate at Amod, where the P. S I. who investigated the case, had his head-quarters.
(4) The P. S. I. has admitted that even after 8-4-60, the accused was not in a mood to confess.
(5) The compounder of Jambusar dispensary'(P. W, 30) Has deposed that accused No. 2-was treated as an outdoor patient on 12-4-60 and.13-4-60 for cold and fever and that on 14th he-was admitted as an indoor patient as he was-found to be suffering from pneumonia.,
It is true that there is no evidence to show that the Magistrate knew about the physical condition-of the accused. But we are here to see whether in view of the circumstances we can say that in our opinion the impression, if any, caused by any inducement or promise had been fully removed. Having regard to the state of health of the accused person, one would not hold that the impression had been fully removed by merely giving: four hours' time for reflection. As to the period, between 12 noon and 4 P. M. on 13-4-60, it is-mentioned in the certificates appended to the confession that the accused was sent to the sub-jail custody at Amod. The P. S. I. admitted that the sub-jail is near the police lock-up at Amod and that the head constable in charge of the sub-jail at Amod is a subordinate of the police investigating officer. Having regard to the above circumstances, we are not prepared to say that in our opinion, the impression, if any, caused by the-threat, inducement or promise, which appears to have been made to the accused during the four days he 'was in police custody, had been fully removed. A confession is an extraordinary type-of evidence. Ordinarily, the prosecution relies on the judicial evidence given by witnesses who depose in the Court on oath. It is true that under the Evidence Act, a confession is relevant and admissible, and may, some times; be used to found a conviction on it. That can be done provided the Court is fully satisfied that the confession is voluntary as provided in Section. 24 or in Section 28 of the Evidence Act. For these reasons, we are not prepared to hold that the confession is relevant and admissible in evidence. In', view of our finding, it is not necessary to consider whether the confession is true or not, though a lengthy argument has been advanced before us to show-that the confession is not true and could not have-been true.
6. As regards accused No. 1 if the confession is left out of consideration, the other items of evidence relied on by the learned Sessions Judge are; (1) the evidence of motive, (2) evidence of absconding; and (3) the evidence that in 'the course of police investigation accused No. 1 had made a statement before the police and the Panch (Ex. 33) that he would show the place-where he had hidden the shoes of Shantilal. According to the Panch, after having made the statement accused No. 1 led the police and the Panchas to a place where a pair of shoes. Article 4 and pieces of leather, Article 5. were found in a 'Bharod' about 2 feet deep and 4 inches wide; Article 5 consisted pieces of leather and there was-a cut on the left shoe. The medical evidence of Dr. Bhaskaray (P. W. 21) show that the left foot of the deceased Shantilal was cut. . The Shoes have' been identified by Taraben, the widow of the deceased and also by a shoe-maker of the Regal Shoe Mart. Taraben,, Ex. 86. has identified Articles 4. and 5, 'the shoes,' as those of her husband, and which' he, had put on the last day when he, left' home. This witness was hot cross-examined in relation' to her evidence of the identity of the shoes. Witness Dalsukh Ranchhod. (P. W. 12) who runs a shop of Regal Shoe' Mart at Amod, also has deposed that he had prepared the shoes Articles 4 and 5, as those of the deceased Shantilal. Witness Ranchhod (P. W. 4), who had last seen the deceased, has also identified Article 4, the shoes of the deceased. The' learned Sessions Judge has accepted the evidence of this witness, and nothing has been pointed out in the cross-examination of this witness-to' Show that his evidence should be rejected. We, therefore, agree with the learned Sessions Judge's finding that the shoes, Article 4, have been identified to be those of the deceased Shantilal. As regards the evidence of the Panch that accused No. I had made & statement, the evidence of the Panch is commented on the ground that he is a party of the same caste as that of the deceased. It was also contended that the Panch was a bosom friend of the deceased, but there is nothing on the record to justify this contention. It is easy to make such suggestions. The learned Sessions Judge has accepted the evidence of the Panch, and in view of the fact that the shoes were actually found, we see no reason to differ from his appreciation of evidence on this point.
7. According to the Panch, accused No. 1 also made a statement' as follows:-
'I have burnt one Theli and I will show you that place.':
Accordingly, accused No. 1 took the police and the Panchas to a 'Bid' at a distance of two furlongs, from the village of Kurchan and at a Bavalbush they found some ashes of a burnt Theli and burnt pieces of papers. There were also somepieces of burnt Karanthas, Articles 8 and 13.This evidence is of little use, because there is nothing to show what Theli or whose Theli was burnt.
8. As regards the evidence of motive, the prosecution has led evidence of Taraben, the wile of the deceased, of Revaben, the mother-in-law of the deceased, of Chitra and Chhagan two Rakhas said to have been engaged by Shantilal after the services of accused. No. 1 were terminated. All these witnesses have deposed that accused No. 1 was in the service of the deceased Shantilal for seven years and that shortly before the murder of' Shantilal accused' No.1's services were terminated. The evidence of the subsequent Rakhas, namely Chitra and Chhagan is that they were threatened by accused No. 3. The threats were given in the presence of accused Nos. 1 and 2 who were at some distance. This evidence does not directly implicate accused No. 1, and. in any case it is alleged, that threats were given to the Rakhas and not to the deceased Shantilal, and it is not of much importance to the prosecution. , The prosecution has led substantial evidence that accused 'No. 1 had a good motive for the commission of the murder of Shantilal. In his examination at the sessions trial, accused No. 1 did not 'deny that his services were terminated, although a question was put to him about the termination of his services. The fact that the services of accused No. 1 were, terminated is not challenged' by his learned counsel, and in fact it is his case that after the' services, were terminated, accused No. 1, went round several villages to look, for another job,. ,
9. Although there is motive on the part of accused No. 1 against the deceased, we must 'look for other evidence for the proof- of the guilt of accused No. 1. As regards the evidence of alleged absconding, the P.S. I. has deposed that he went to the house of, accused No. 1 on two or three occasions and he did not find him. But this is not sufficient proof of the alleged fact of absconding. There, is no evidence to show that a search was made for accused-No. 1 at the' places where he would likely have been during the period, -Moreover, no question was put to the accused in his examination at the sessions trial regarding the alleged fact of absconding. The circumstance of the alleged absconding must, therefore, be ignored.
10. The next piece of evidence relied on by the prosecution against accused No. 1 is that he had made a statement that he had hidden a pen of the deceased Shantilal and had pointed it out. The evidence on this point is that o the Panch witness Bhikhabhai (P. W. 16), Ex. 33, who has deposed that on 6-4-60 accused No. 1 was present at the Chora of village Simartha. He was then in police custody. He then made a statement that he would 'show the (place where he had hidden the shoes of Shantilal.. A Panchnama of the, statement was made. Afterwards, they' went in a car to a 'Nel' from the road leading to Chamand from. Amod. At that time accused No. 1 was sitting near the driver in front. Accused No. 1 led them, there and he found a pair of shoes Article 4 mid pieces of leather Article 5 from the Bharod about 2 feet deep and 4 inches wide. The pieces of leather Article 5, fitted with. Article . 4.
11. As regards the identity of the shoes, there is the evidence of Taraben, the Widow of the deceased. She has deposed that the shoes in question had been put' on by her husband on the -date on which he left her house, namely, of 19-3-60. She was not cross-examined on this point. There is also the evidence of Shoe-maker Dalsukh ' Ranchhod, P. W. 12, who runs a shop' in the ' name of Regal Shoe Mart. He has identified the shoes as those prepared for the deceased. This witness is evidently an independent witness, and nothing has-been brought out in his cross-examination to justify the rejection of his evidence. Shoemakers like this witness are always able to identify the shoes made by them, and in this particular case, the deceased Shantilal had placed an order and the witness also produced an extract : from a note book containing the orders. , We, therefore, agree with the learned Sessions Judge in holding that the identity of the shoes. Article 4, has been proved. There was also a cut in the left shoe, which corresponds to the injury described by the, medical officer as injury No. 7. ' That in jury is described as follows:
'A transverse incised wound 3' X1/2 x bone deep extending from the middle of the left foot to the outside of the foot in the middle.'
It is, therefore, proved beyond' reasonable doubt that 'these' shoes' of', the deceased, Shantilal were concealed in a Bharod. In his statement, accused. No. 1 has also stated that these were the shoe' of Shantilal. But it is contended., by' his learned counsel that his 'statement that, these were the' shoes of Shantilal is inadmissible in evidence under. Section 27 of the Evidence Act. Their Lordships of the Supreme Court, however, held in Pershadi v. State of Uttar Pradesh, (S) AIR 1957' SC 211, that such evidence is admissible. In that case, the accused made a statement that he would give the clothes of the deceased Chimanlal, which he had placed in a pit above' a brick-kiln, and this statement was held as admissible. The contention of the learned counsel' is, therefore, rejected.
12. As regards the evidence that a Theli was burnt and ashes were pointed out by accused No, 1, this evidence, is of no value, as there is nothing to show that the ashes were of a Theli and that the Theli was of the deceased. In. his statement, the accused, had not stated that the Theli belonged to the deceased. It is unnecessary to consider the other items of evidence not relied by the learned Sessions Judge, like the evidence relating to Dharia. So we are left with the solitary item regarding 'the shoes. No doubt there is a great deal of suspicion about the guilt of accused No. 1 But in our opinion, having regard to the observations of their Lordships of the Supreme Court in:Sanwat Khan v. State of Rajasthan, (S) AIR. 1956 SC 54, where the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the property was taken from the deceased, by the accused at the time of the murder, 'it is not safe to draw the inference that the person in possession of the property was the murderer. It is also important to, note that the shoes were appointed put about 18 days after, the commission of the alleged murder. In these circumstances, it is difficult to hold, that accused No. 1 had taken part in the commission of the murder, merely on the basis of the evidence regarding the shoes. We, therefore, think that the learned Sessions Judge' was wrong in; convicting accused No. 1, under. Section 302, Indian Penal' Code, and set aside the conviction and' sentence passed under Section' 302, I. P. Code. The evidence regarding the production of the shoes taken with the' statement made by him regarding the discovery of the shoes of the deceased would clearly show that he bad destroyed the evidence regarding the commission of the murder 'with the intention of screening the offender from punishment. The shoes of the deceased would be- a part of the evidence of the commission of the murder, and in his' statement, accused No. i stated that he had hidden the shoes of Shantilal. This statement is clearly admissible in evidence under Section 27, of the Evidence Act in view of the ruling in Rama v. State, AIR 1952 Bom 299 (FB), that the intention to screen the offender from punishment must be inferred in the circumstances. We, therefore, hold accused No. to gailty under Section 301, Indian Penal Code, and sentence him to rigorous imprisonment forfive years,
13. As regards accused 'No. 2, we have al-ready rejected his alleged confession: No direct motive is alleged against him by the prosecution! The Only 'piece of evidence relied on by the prosecution and accepted by the learned - Sessions Judge is one relating to the' find of a wrist watch; on the person of accused No. 2 when he was arrested on 6-4-60. The 'identity of this wrist watch is sought to be proved by the evidence of Taraben, the widow of the deceased, and also of the watch-maker. It is true that Taraben has stated that she can identify' the 'wrist watch if the belt of the writs watch is shown to her. But she has also stated that the original belt is not shown to her and has not been found. Her evidence relating to the identity of the wrist watch is therefore not beyond doubt. But there remains the evidence of the watch-maker Chinubhai; P. W. 13. He has deposed that he had sold one wrist watch Sando Steel 3253 for Rs. 148/- on 17-4-55 to the deceased and that he can identify the wrist watch' because of the description in the bill. He identifies the wrist watch as Article 3 in the Court, He has also deposed that although the model number Of different wrist watches cannot differ, the serial number b bound to differ and the serial number of one watch cannot be found in the serial number of another watch of the same' model. After looking at the invoice he has also deposed that the serial number, namely, 56094 had been sent to him by the Favre Leuba Co., on 6-4-55 about 10 days' before he had sold the watch to the-deceased Shantilal. ' This Serial number corresponds with the serial number of the wrist watch. Article 3, which was found on the person of accused No. 2, when he was arrested. It is contend ed by the learned counsel for the appellant that this invoice was wrongly admitted in evidence as it was not proved. In a case like this, the serial number can be deposed to by the witness who can refresh his memory from the invoice in view of the provisions contained in Sections 158 and 159 of the Evidence Act. It is true that the invoice has not been exhibited in evidence, but it could not be exhibited in evidence unless it was sought to be exhibited by the cross-examining counsel. But the evidence of the watch dealer that the Favre Leuba Model 3253 bearing Serial No., 56094 had been sold by him to the deceased is proper evidence, and that 'completely identifies the wrist watch as that of the deceased Shantilal. In addition, there is the evidence that a fountain pan was shown by accused No. 2. But the learned Sessions Judge did not put any value on this evidence because be was not inclined to accept the evidence regarding the identity of the fountaiapen. Although witnesses may not have been able to identify the fountain pen as that of the deceased, there is the statement of accused No. 2 himself that this pen belonged to the deceased, and this circumstance has not been sufficiently' considered, by the learned Sessions Judge. , The learned Sessions Judge did not say that he rejected the evidence regarding the statement made by accused No. 2, but he rejected the evidence regarding the fountain pen merely ,on the ground that' the identity of the fountain pen was not beyond doubt. But if we take the statement of accused No. 2 that the fountain pen belonged to the deceased, there is no need to reject the evidence relating to the fountain pen. However, both these articles were found about 18 days after the commission of the murder, and having regard to the observations of their Lordships of the Supreme Court in (S) AIR 1956 SC 54, it would not be safe, in the instant case, having regard to all the items of evidence and in particular having regard to the fact that no motive is established against accused No. 2, to convict accused No. 2 for the offence of murder of the deceased Shantilal. We, therefore, reverse the conviction of accused No. 2 under Section 302 and also the sentence passed upon him. Accused No. 2 also made a statement before the police and the Panchas that he had burnt the clothes of Shantilal and he would show the ashes. He had shown the place where he had burnt the clothes of Shantilal and a gunny bag. There is the evidence of the Panch on this point, and we have already given reasons for holding that there is no reason to reject the evidence of the Panch. There is no evidence that the gunny bag belonged to the deceased. The fact that he had burnt the clothes of Shantilal is proved by accused No. 2 himself. It is, however, contended by the learned counsel that this statement is not admissible in evidence under Section 27 of the Evidence Act. We reject this contention having regard to the view taken by the Bombay High Court in AIR 1952 Bom 299 (FB), and also having regard to the wording of Section 27 of the Evidence Act itself. We, therefore, hold it proved beyond reasonable doubt that accused No. 2 had burnt the clothes of deceased Shantilal. We, therefore, hold that accused No. 2 had destroyed the evidence regarding the commission of the death of Shantilal and that his intention to screen the offender from punishment must be inferred in the circumstances of the case. He is, therefore, guilty under Section 201, Indian Penal Code, and is sentenced to Rule 1. for five years.
14. We, therefore, set aside the convictions of accused Nos. 1 and 2 under Section 302, Indian Penal Code, and the sentence passed upon them under that section. But they are convicted under Section 201, Indian Penal Code, and both accused Nos. 1 and 2 are sentenced to five years' rigorous imprisonment.