1. These are three connected appeals, NOS. 1.3 of 1949, and all of them will be disposed of by this judgment. Balia, Moolia and Ramla have been convicted and sentenced under Section 302, Penal Code, to rigorous imprisonment for life each for causing the death of Lalia, and under Section 894, Penal Code to 7 years rigorous imprisonment each for robbing him of his money and ornaments. Both the sentences have been made to run concurrently. The three appeals referred to above have been filed by them.
2. Lalia deceased, a young man of 94 years of age, was resident of Mirpur in Bind and came to Aimer in search of a match for himself. He was wearing a few silver ornaments and had RS. 500 with him, He knew Balia of Gola in Ajmer Merwara and therefore visited him. Balia brought him to Sumel in Marwar and they stayed with Ramla for 5 or 6 days. Moolia who cultivates a bera in this village also joined them and the deceased is alleged to have eaten 'Makkias' from his field a day before the occurrence. Kamla purchased liquor from the shop of Ghisa on the evening of 9th September 1946 and soon after all of them including the deceased left Sumel for Rawania at about sunset. They passed by the field of P. W. 3, Baldeo and he heard them talking aloud as they were going, Lalia however never reached Rawania, as when they neared Dhed Magri, liquor seems to have got the better of him as he lay down there and fell asleep. It appears the accused were after his money and ornaments and this gave them the opportunity they were looking for, with the result that Moolia caught him by the feet, Bamla by the hands and Balia tied his turban round his throat and strangled him to death. They then relieved him of his money and ornaments and threw the dead body in the 'bali' of Marawara field at the foot of the Magri in about knee deep water, P. W. 8 Abbey Singh, while grazing his cattle, saw the dead body there and informed P. W. 9 Gopal Singh, Kamdar of the Kawania Jagirdar and the latter, after verifying the report given to him, lodged a first information report with the police. Thereafter the Jagirdar who recognised the dead body as that of Lalia, as ho had seen him two or three days back, began the investigation himself. Abbey Singh informed the Jagirdar that he had seen the deceased the previous day eating Makkias in Moolia'a field. Accordingly Moolia was tackled first of all and on coming to know from him that Lalia was the guest of Ramla, the Jagirdar detained both Moolia and Ramla. Ramla hav-ing informed him that the deceased had come to Marwar with Balia, he went to Gola and, through a Mabajan, sent for him on the pretext that he wanted his services for making 'Charas'. When all the three accused came together in the Kot of the Jagirdar and faced one another, Bamla could not contain himself and is alleged to have confessed his guilt. Thereupon the other two aacused also followed suit and threw themselves at the mercy of the Jagirdar, requesting him to save them. The police arrived in the village on 11th September and took all the three accused in custody. The dead body was sent for post mortern examination on 12th September and P. W. 11 Dr. Sri Nath found the following injuries;
1. External in juries:-- (a) Contusion-bead-left parieto temporal region.
3. Internal injuries.--(a.) Fracture of skull--Ecchymosis below the external injury, Irregular in shape, 2' x 2 1/2' (b) Depressed fracture of the left parieto-temporal bone. Squamosal suture, upper in central portion going inside.'
3. The cause of death was, in his opinion asphyxia due to strangulation, secondary to coma, because of the fracture of the skull. During the course of the investigation the same day, 3 silver ornaments, namely Kari, Kandora and Sulphi, were recovered at Moolia's instance from under a heap of Makka fodder and a ten rupee cote from his possession. On 15th September 1943, Second Glass Magistrate, Sendra recorded the confessions of Ramla and Moolia and on 17th September 1946 the confession of Balia was recorded by him. Ultimately all the three accused were challaned under Section 302, Penal Code, in the Court of First Class Magistrate, Jetaran and later committed by him to Sessions Court. The accused denied having committed the offence and retracted the confessions as having been made under police torture. Moolia even denied recovery of the ornaments from his possession, though in the Court of the committing Magistrate, he had admitted that they had been recovered from him and stated that they had been given to him by Ramla. The prosecution relied upon (i) the retracted confessions, (ii) the extra-judicial confessions as proved by P. W. 8 Abbey Singh, P. W. 9 Gopal Singh and P. W. 2 Karan Singh, (iii) the statements of P. W. 1 Asia, P. W. 3 Baldeo and P. W. 4, Chhogla showing that deceased was last seen in the company of the accused and (iv) the statements of P. W. 7 Inder Singh, P. W. 18 Bastimal and P. W. 14 Gulabchand in whose presence ornaments were recovered from underneath a heap of Makka fodder in Moolia's field. These ornaments were identified as belonging to the deceased by P. W. l Asia, P. W. 2 Karan Singh, P. W. 4 Chhogla and P. W. 8 Abbey Singh. The accused produced three witnesses in defence in order to prove their alibi but the learned Sessions Judge rejected this evidence as worthless and, relying upon the prosecution evidence, convicted and sentenced the accused both under Sections 302 and 394, Penal Code as mentioned above.
4. The accused being unrepresented Mr. Mool Chand, who had conducted their case in the Sessions Court, undertook to argue the appeals on their behalf as amicus curiae and has accordingly taken us through the entire record and also addressed us at length. There is not the slightest doubt that Lalia died an unnatural death and the important question calling for determination in these appeals is whether the accused are responsible for it. There is no eyewitness and the evidence on which the prosecution relies consists of the following ; (1) Statements of P. W. 1 Asia, P. W. 3 Baldeo and P. W. 4 Chhogla showing that the deceased was last seen in the company of the accused, (2) Extra-judicial confessions, as deposed to by P. W. 2 Karan-Singh, P. W. 8 Abhey Singh and P. W. 9 Gopal Singh (3) Retracted confessions. (4) Recovery of ornaments as deposed to by P. W. 7 Inder Singh, P. W. 13 Bastimal and P. W. 14 Gulab Chand and their identification by P. W. l Asia, P. W. 2 Karan Singh, P. W. 4 Chhogla and P. W. 8 Abhey Singh. We will consider these items of evidence one by one and appraise their value.
5. The circumstantial evidence, showing the association of the deceased with the three accused and their having been seen going together on the evening of 9th September 1946, consists of the statements of P. W. l Asia, P. W. 3 Baldeo and P. W. 4 Chhogla. P. W. 1 Asia came to know the deceased when he stayed at Ramla's house in village Sumel for 6 or 6 days. He saw him first when he was passing by the house of Ramla and the deceased was sitting inside, and again when the deceased was passing by the shop of Ramla. On the third occasion, he saw the accused going with the deceased on the evening before the occurrence. The witness was cross-examined at some length with reference to what is alleged to be his statement to the police and some discrepancies appear to have been brought out, but it is urged by the learned Public Prosecutor that these should be ignored inasmuch as the witness denied having made any statement to the police and therefore, until that statement is duly proved, the witness could not be contradicted. There is force in this contention of the learned Public Prosecutor. The head constable and the Sub-Inspector of Police were cross-examined at length but not a single question was put to them in respect of this statement. The words 'if duly proved' in the proviso to Section 162, Criminal P. C. clearly show that an alleged record of a statement to the police cannot be admitted in evidence straightway and that the officer before whom the statement is said to have been made should ordinarily be examined as to any alleged statement that is relied upon by the accused for the purpose of contradicting a witness. In other words, there is no presumption as to the genuineness of the statements of the witnesses entered in the police diary and, unless they are duly proved, they cannot be used to contradict the evidence given in Court. In the circumstances, the contradictions brought out by the learned counsel for the accused cannot be referred to and must be ignored. So far as the rest of the statement of the witness is concerned, it seems to be forthright and there appears to be no reason for disbelieving it. (After discussing the evidence of P. W. 3 Baldeo and P. W. 4 Chhogla, the judgment proceeds as follows :) The statements of the above mentioned three witnesses are sufficient to establish that the deceased was seen in the company of the accused shortly before he disappeared. Next, there are three confessions made by all the three accused. The confessions of Moolia and Ramla were recorded on 16th September 1946 and the confession of Balia was recorded on 17th September 1946. These confessions, it may be pointed out, are consistent in important details relating to the commission of the crime. So far as Balia's confession is concerned, it also gives us information regarding Lalia having gone to his house in Gola and having been brought from there to Marwar to the house of Ramla where he was left by Balia on the understanding that he would come back after a few days. He returned to Bamla's house in village Sumel on Bhadwa Sud 13th i. e., 9th September 1946 and purchased a bottle of liquor, half of which was consumed by Lalia. Thereafter, all the accused went towards Dhed Magri and since Lalia had taken too much liquor, he felt intoxicated and not only went to sleep but also appears to have become unconscious. The accused then did what they could to do him to death. Moolia caught him by the feet, Ramla by the hand and Balia tied a turban round his throat and strangled him to death. When he began to struggle in his last moments, Balia sat on big chest till be expired. Thereafter, they searched his person and relieved him of the cash and his ornaments. To this effect are also the confessions of Moola and Ramla except that while Balia mentioned the cash to be Rs. 160, Moola and Eamla stated that the amount taken was the sum of Rs. 500. It appears from these confessions that the ornaments were entrusted to Moola and a currency note of Rs. 10 was also given to him while the balance of the amount was retained by Balia who undertook to come back and share it with the other two accused. Possibly, it is for this reason that, while the other two accused mentioned the total amount taken to be RS. 500, Balia reduced it to Rs. 150. We consider this little difference in de-tail immaterial so far as the commission of the crime concerned. The confession was recorded by P. W. 10 Mr. Suresh Chandra, Second Class Magistrate, Sendra, and it appears from his statement that he had satisfied himself by putting questions to the accused that they were making the confessions voluntarily. These confessions were, however, retracted by the accused persons in the committing Magistrate's Court and, accordingly, it is urged by the learned counsel on their behalf that they should not be relied upon. The law on this question is fairly well established and may be briefly stated. When a retracted confession is given in evidence, the Court has first to determine whether the confession is admissible. The admissibility depends upon the confession having been made without any inducement, threat or promise referred to in Section 24, Evidence Act. The mere fact that a confession has been retracted does not by itself show that it was not voluntary but was made in consequence of some inducement threat or promise. There is absolutely no material on this record to establish that the confessions in this case were brought about by any one of these things. On the contrary, according to the statement of the learned Magistrate, who recorded these confessions, there is no escape from the conclusion that they had been made voluntarily. Now, once the Court holds the confessions to be voluntary, there is nothing in the law to prevent it from basing a conviction on retracted confessions provided they are believed to be true. It is no doubt due to a rule of prudence that the Courts have declined to record a conviction on a retracted confession alone and have required some independent evidence in support of it. Now on the question as to what will constitute a sufficient corroboration of a retracted confession in a particular case, it is not possible to lay down any rule except that corroboration must be on some material particular connecting the accused with the offence. The production of property has in some cases been held to be sufficient corroboration. One such case referred to by the learned Public Prosecutor is Arjan Singh v. Emperor, A.I.R. (17) 1930 Lab. 257 : (30 cr. L. J. 1046). The accused in that case retracted the confession at the first possible moment, that is, before the Magistrate who had recorded the confession and yet it was held that such a confession was sufficient to warrant a conviction if corroborated by the production of property for which the accused could offer no explanation. In the present case also the recovery of the ornaments constitutes a sufficient corroboration of the confessions but we will deal with this aspect later. The learned counsel for the accused next urged that the confessions should not be made a basis for the conviction of the accused-as, after they had been recorded, the accused were placed in custody which was nominally judicial but was in its essence police custody. He has contended in this connection that the lock-up where the accused were detained was in charge of the police, and that accordingly, since the accused were apprehending that they would be remand ed to police custody after their confessions had been recorded, their statements must be held to have been influenced by that consideration and should be treated as being of no value. We are not aware if the accused were cognizant of the nature of the custody to which they were going to be remanded after their statements had been recorded by the Magistrate. Be that as it may, as pointed out by the learned Public Prosecutor and held in Sarkar v. Peerchand, 1941 M.L.R. 18 (23) (cr.), the judicial lock-up is in the court compound and under the direct supervision of the Magistrate and the mere fact that there is a constable outside is not sufficient to turn it into a police lock-up. In the words of this judgment, the constable on guard is no doubt a police man but, for the purpose of the performance of his duties as such, he is amenable to the jurisdiction of the Magistrate and accordingly the lock up continues to be a judicial lock-up. Having held the confessions to be of a voluntary nature, and perused them carefully, we are definitely of the view that they bear the ring of truth. We will now proceed to discuss the corroborative evidence consisting of the recovery of ornaments which belonged to the deceased and were on his person at the time he was done to death. This evidence consists of the statements of P. W. 7 Inder Singh, P. W. 13 Bastimal and P. W. 14 Gulab Chand. P. W. 7 was present at the time Moolia took out the ornaments, tied in a piece of cloth, from underneath a heap of Makkia fodder in his field and gave it to the police. To the same effect are also the statements of the other two witnesses. They were identified as belonging to the deceased by P. W. 1 Asia and P. W, 4 Chhogla and also P. W. 8 Abbey Singh. Moolia admitted in the Court of the committing Magistrate that these ornaments were recovered from his possession, although he stated that they had been given to him by Balia. It appears that these ornaments were given to him by Balia for safe custody and that they had been concealed by him under a heap of Makkia fodder in his field. They came into his possession on account of the combined action of all the three accused and their recovery furnishes in our opinion a material corroboration of the version contained in the confessions. The learned Public Prosecutor has also referred to the extra-judicial confessions as deposed to by P. W. 2 Karan Singh, P. W. 8 Abhey Singh and P. W. 9 Gopalsingh but the learned counsel for the accused urged that they were not reliable as the details given by these witnesses did not tally with those contained in the judicial confessions recorded by the learned Magistrate. That is obviously on account of the fact that the details were retained by the witnesses in their memory and it is for this reason that evidence of oral confessions of guilt is generally received with great caution. The witnesses are led away by the zeal which generally prevails against the offenders and there is also an inclination to introduce exaggerations. It is for thisreason that the value of this kind of evidence isvery much reduced. In this case on account ofthe fact that the Jagirdar has not been shown tobe inimical towards the accused, we are quita prepared to believe that possibly, when the threeaccused were brought together inside the Kot and faced one another, they felt an irresistibleurge to make a clean breast of the whole affairBut beyond the fact that confessions were madeto the witnesses referred to above, we are notprepared to rely upon the details furnished bythem in their statements. The above evidencefurther establishes the voluntary nature of thejudicial confessions. As it is, the material on therecord is more than sufficient to establish theguilt of the accused. They have led some evidence in defence in order to establish their alibi but the learned counsel for the accused has notreferred to it and in our opinion, it has beenrightly rejected as worthless. The result is thatthese appeals fail and are hereby dismissed.