1. The applicants were convicted Under Section 411, IPC and sentenced to one month's R. I. each by the Sub-Divisional Magistrate, Kekri. Their conviction and sentences have been upheld toy the learned Sessions Judge in appeal.
2. The legality of the conviction Is challenged in revision.
3. A theft was committed at the house of Raghubir Singh constable during the night of 15th Mid 16th September 1953. On receiving information of the theft Raghubir Singh lodged the report Ex. P/I. The stolen property was recovered from Tillage Dabalana (Rajasthan) on 17-10-1953.
4. The case for the prosecution in brief was that the recovery of the different articles was Made from the accused Beoparia, Sm, Naraini, Sm. Kanti and Sm. Premi, who were in possession knowing that it was stolen property. One Ahmad was also an accused but he was acquitted.
5. It is urged in revision that the search was illegal as it was not made in compliance with the provisions of Section 103, Cr.PC and the confession relied upon by the Court below was not voluntary .r properly recorded and applicants possession, of the stolen property was not proved.
6. The search was made in the presence of Hafeez and Ramniwas who were driver and cleaner respectively on the lorry in which the police party went from Deoli to village Dabalana and they figured as witnesses on the recovery lists which were also signed by the accused. The contention on behalf of the applicants is that as the two witnesses were under the influence of the police and were not Inhabitants of the locality, the search was illegal. The learned Sessions Judge discarded the recovery lists on the ground that they were signed by the accused, but he took into consideration the oral evidence of the search witnesses Hafeez and Ramniwas. The provisions of Section 103, Cr.PC are mandatory, designed to guard against possible chicanery and unfair dealings and must be strictly compiled with. Every departure does not however render the search illegal. But unless an explanation is given of the omission to secure respectable inhabitants of the locality as witnesses the Court will view the evidence with deep suspicion. There is nothing on the record to show that the inhabitants of the locality could not be secured as search witnesses.
7. There is a material discrepancy in the evidence of Hafeez and Ramniwas relating to the recovery. Hafeez stated that the accused Narainl, Kanti and Premi brought the articles from the jungle where they had gone unaccompanied by anybody. He does not say that anything was recovered from the accused Beoparia. Ramniwas, on the other hand, stated that the articles were pro- X, duced by the accused from the houses. He further says that Beoparia produced the Kanagtl Ex. 2, but he also admits that nobody accompanied &. accused to the places from where they produced the articles. . A finding of fact should noi ordinarily be disturbed in revision. But if there are material discrepancies in the evidence which'have not been explained or referred to by the Courts below, then it is open to the Court in revision to review the evidence. S. I. Todarjingh who was responsible for conducting the search did not improve the position as he stated that the articles were brought to the place where he was sitting. On the evidence it cannot therefore be held beyond all reasonable doubt that the different articles were produced by the accused.
8. Even assuming that the articles were produced by the accused it still lay upon the prosecution to establish that the accuse were in possession with the knowledge that the property was stolen. The three womaa accused have husbands and presumably they live together. If the articles were produced from their houses as stated by Ramniwas, then the possession cannot be said to be exclusively theirs. Where a house is occupied jointly by the husband and wife, it cannot in the absence of positive evidence be held that one is in exclusive possession. If the various articles were produced from the Jungle as stated by Hafeez, then to it cannot be held that the accused were in possession unless there was evidence to show that the place was not accessible to anybody else. A person may know where a stolen property is concealed without being actually in possession of it. There being no evidence about the nature of the place and its surrounc'ngs, the possession Of the three- women accused cannot be presumed.
9. Much stress on behalf of the prosecution has been laid on the so called confessions of the accused Naraini, Kanti and Premi. The confessions were reported at the jail by Shri Sharman Magistrate, 2nd Class, on 23-10-1953. It appear? that the accused were produced before him on 22-10-1953 when he put to them the preliminary questions 1-9 and then sent the accused to the judicial lock-up. But as noted in the endorsement of the Magistrate, the questions 1-9 were not put to the accused on 23-10-1953. The accused retracted the confessions and stated that they were not voluntary. The Magistrate who recorded the confessions was not examined and the confessions were read in evidence under 8. 80, Evidence Act. The burden of proving that a confession is voluntary lies on the prosecution and in view of the confessions having been retracted by the accused, the Magistrate was a most important witness to prove if the confessions were voluntary or not. The confessions were recorded in Roman and the language used could not possibly be used by the accused who belong to a tribe to whom literacy is almost; unknown. It is of utmost importance that, the questions are put to the accused in a language which they can easily understand. It is remark~| able that the pattern of the confessions is almost identical and the answers of. the accused are practically the same. A confession is a most. important evidence and every care should be taken in recording it. It should not be recorded mecha-i 1955 Cri. L. J. State of Bihar v. Lala Mahto (Ahmad J.) tnlcally. The questions put to the accused must be directed to eliciting facts which will enable -Pi Magistrate to judge of the voluntary char-lacttr of the confession. As already mentioned, the primary questions 1-9 were not put to the accused on 23-10-1953 when the confessions were recorded..It was held by the Palna High Court in -'Funia Mullah v. Emperor' AIR 1946 Pat 169 (A) that where after recording part of the confession on the preceding day, the accused is produced the next day, the Magistrate before recording the confession must give a fresh warning to the accused that he is not bound to make a statement and if he does so it may be used as evidence against him even if such warning was given on the previous occasion. The confession recorded Without giving a fresh warning is inadmissible in evidence and the defect is not cured Under Section 533, Cr.PC I am in perfect agreement with the above view and hold that the confessions were inadmissible to evidence.
10. The confessions were almost exculpatory as there was not the remotest suggestion that the accused knew about the property being stolen. The learned Sessions Judge has, however, relied upon the confessions as admissions. But every confession is essentially an admission and if it is not admissible in evidence as a confession it is doubtful if it can be relied upon as an admission.
11. The case against Beoparia is distinguishable as he must be presumed to be In possession of the place from which he produced the stolen property, Ex. 2. But Hafeez did not state that Bfioparia produced the article Ex. 2 and Beoraria did not make a confession. The recovery of Ex. 2 from Beoparia is, therefore, open to grave doubt.
12. For the reasons given above, I am of the .pinion that the conviction and sentences of the applicants are not sustainable. The revision is allowed and the conviction and sentences of the applicants are set aside.