Panchapakesa Ayyar, J.
1. These are two appeals by Venkata Reddi and Vebulu, accused 3 and 4 in S. C. No. 42 of 1949 on the file of the Sessions Judge, Cuddappah. They have been convicted under Sections 302 and 34, Penal-Code, and sentenced to transportation for life, and also under Section 201, Penal Code, and sentenced to rigorous imprisonment for two years to run concurrently with the sentences under Section 302, Penal Code. The facts are briefly these. One Reddanna was living in Poanellavandlapalli in Rayachoti taluk in Guddappah district. Though he was married he was not on good terms with his wife for sometime before this murder and he was carrying on with a woman called Chinna Ammani of Ragatiguntapalli, an adjoining village. Accused 2 was also carrying on with the same Chinna Ammani Reddanna wanted to have this Chinna Ammani exclusively for himself, by marrying her, and accused 1 and 2 went and told him on 8-4-1949, that they would get him married to Ammani that midnight. So, taking some jewels of his and borrowing some jewels as a loan from a barber P. W. 1, Reddanna set out with accused 1 and accused 2 on the night of 8-4-1949 with intent to get the marriage performed that midnight. Accused 1 and 2 who are closely related, took the help of accused 3 and 4, two persons alleged to be hired assassins, and all the four are said to have murdered Reddana that night while sleeping and waiting for the girl Amman who was said to be on her way, by accused 2 pressing his throat with terrific force and the remaining accused holding his arms and legs, near Marrimani Bhavi in a jungle and buried his corpse there. Thereafter, fearing that the corpse might give out a stink which would be noticed by people in the neighbourhood frequenting that place, they are said to have removed the corpse to Yedurlakunta valley in the jungle and buried it in a pit there. There also they seemed to have feared later on that the body would be discovered by its stink and so removed it and put it in a gunny bag in order to transport it to a more unfrequented place. But small portions of the decomposed corpse, like the skin of the palm of the left band and the sole of the right foot, got left behind in the Yedulakunta valley. The rest of the corpse was put in a gunny bag and taken to Devarthi Bhavi, a disused well, a mile away, and shoved into it. P. W. 6, the elder brother of Reddanna, got suspicious about the disappearance of Reddanna and he went and gave a complaint to the police on 14-4-1949 about his disappearance and his suspicions that he might have been murdered. The police began vigorous investigation. Owing to the great stink in Yedurlagunta valley people came to know that some corpse might have been buried there and P. W. 15 the Circle Inspector of Police went on 17th with P. W. 10, the Sub-Magistrate, and big men and dug up the spot and recovered the skin of the palm and sole of the foot of a decomposed corpse, and not the other portions. The scar of a cut wound on the skin of the thumb corresponded to such a wound on the thumb of Reddenna. Accused 4 was arrested on suspicion on the night of 21-4-1949 and he offered to show the main corpse of Reddanna. He took the Circle Inspector of Police and the Sub-Magistrate and the big men to Devarathi Bhavi and pointed out the gunny bag containing the remaining portion of Reddanna's corpse. According to the medical evidence of P. W. 9, that corpse could be identified by the heir, teeth etc., by persons who knew the man and the witnesses who were related to Reddanna or knew him well identified the corpse, by the curly hair, coated teeth, jutting forehead bone and other signs and features and also a key of Beddanna (M. O. 1) found with the remains.
Lower Court believed the evidence of the prosecution witnesses that the remnants found in the gunny bag represented the corpse of the murdered Reddana P. W. 9, the doctor swore that the murder should have taken place 14 days before, that is on the 8th. The evidence to show that the death had been brought about by throttling or strangulation rested only on the confessions of accused 4 and 3. There was no direct witness to speak to the murder, P. W. 7, who keeps a private school, swore that accused 1 and 2 approached him to aid in this murder, but he excused himself as he was already involved in another murder case and it was all such a bother. The confessional statements were recorded from accused 3 and 4 by the Sub-Magistrate, P.W. 10, on 28-4-1949 and 24-4-1949 respectively. They gave a detailed account of the murder but minimised the part taken in the murder by accused 3 and 4 and exaggerated the part played by accused 2. But one important thing was that the Magistrate omitted to warn accused 4 or accused 3 that it was not intended to take them as approvers as required by Rule 85, Criminal Rules of Practice. It has been held by a single Judge of this Court in Govinda Subbaramayya v. Emperor, 1937 M. W. N. cr. 1 and by a Bench of this Court in R. T. no. 55 of 1947 (an unreported case), that such an omission is fatal to the admissibility of such a confession as it causes a grave doubt on the voluntary nature of such a confession in cases where there are more than one accused and there is a reasonable ground for supposing that the confessions might have been made on the assumption that the persons confessing would be taken on as approvers and escape punishment. In the present case, some persons had been suspected in the first instance of this murder and 8 persons were actually charge-sheeted of whom four were committed to the sessions and two finally acquitted. It is obvious, therefore, that this is one of those oases which would come within the scope of the two rulings quoted above which, in our opinion, have laid down a salutary rule of prudence in such cases. Accused 3 and 4 retracted from their confessions in the committing Magistrate's Court. Accused 4 when taken be fore the District Magistrate for recording his statement in order to be tendered a pardon and taken on as an approver refused to make a statement and said that he knew nothing about the murder. It is obvious that the confessions of accused 3 and 4, which are the main pieces of evidence against them regarding the conviction under Section 302, Penal Code are of no value in the circumstances. Nor were these retracted confessions corroborated in any material particulars regarding the murder itself. The fact that accused 3 and 4 were charged for another murder, as hired assassins and acquitted shortly before this case was launched for lack of evidence, is of course, irrelevant. So, we set aside the convictions of both the appellants under Section 302, Penal Code, and the sentences, of transportation for life, and acquit them both of that offence, by giving them the benefit of the doubt. It is regrettable that despite many rulings of this Court emphasising the need to follow Rule 85, Criminal Rules of Practice, some Magistrates are still not following that rule strictly and putting all the questions and warnings required thereunder. We hope that such cases of carelessness on the part of Magistrates will not recur hereafter.
2. Now we come to the convictions of the appellants under Section 201, Penal Code. There is no satisfactory evidence at all regarding this offence so far as accused 3 is concerned. His confession was four days later than that of accused 4 and led to no new incriminating discovery. His being alleged to be a hired assassin and a confederate of accused 4 in two murders is of no use. We set aside his convention under Section 201, Penal Code, and the sentence thereunder and acquit him of this offence also. But regarding accused 4 there is sufficient evidence, in our opinion, to support the conviction under Section 201, Penal Code. He was the first to give information about the corpse of Reddanna thrown into the Davarathi Bhavi. Nobody knew about the existence of the corpse that was found in the well in the jungle before he gave information regarding it, and there is ample ground for presuming that he had a hand in concealing the corpse in that well in order to prevent the detection of this murder. The identity of that corpse as that of Reddanna, who was held to have been murdered on the 8th night, was taken as established by the lower Court, which saw the witnesses and heard their evidence, and we are not prepared to take a different view. In the end, therefore, we confirm the conviction of accused 4 under Section 201, Penal Code, and also the sentence awarded thereunder which was not at all excessive.