1. This is an appeal on behalf of Government against the acquittal of six prisoners tried on a charge of dacoity. The appeal is supported on the ground that the Sessions Judge has in several matters misdirected the Jury. As regards the first two prisoners, the evidence consisted of statements made by them shortly after their arrest and the discovery of things said to be part of the stolen property in the houses or under the control of these prisoners. These two prisoners were both arrested on the 4th of June, and they appear to have been brought before the Second-Class Magistrate on the 6th. On the 9th of June they were again brought before him, and each of them made a statement implicating himself in a qualified way in the dacoity. They mention the circumstances of their arrest in their houses and admit that they gave over the things produced at the trial to the Police. The usual certificate is appended by the Second-Class Magistrate to the statements made by these two prisoners.
2. On the 8th of July the first prisoner was again brought before the Magistrate and again admitted that he took part in the dacoity, but pleaded that he did so under compulsion. The other prisoner made a statement on the same day to much the same effect. On the 13th August 1896 when the case was committed for trial by another Magistrate, the first prisoner denied that he had ever made a confessional statement before the original Magistrate and denied the search in the house and the discovery of property in it. The other prisoner on the same occasion said that he had made his confessional statement under the belief that he would be taken as an approver, and denied the truth of the allegations made in it.
3. The Sessions Judge makes the following observations with regard to these confessions. He says 'they have been retracted and I advise you to pay no attention to them unless you think that they are corroborated by independent evidence. If you find that it has been satisfactorily proved that the first and second accused had in their possession property which was stolen on that night, that, no doubt, would be a corroboration, and you may rely upon the confessions although they have been retracted.' Exception is taken by the Public Prosecutor to this direction on the part of the Judge. We are aware that language of this sort is frequently used by Judges with reference to confessional statements which have been retracted, and there are, no doubt, cases in which the proposition involved is a correct one. But we are of opinion that it cannot be laid down as an absolute rule of law that a confession made and subsequently retracted by a prisoner cannot be accepted as evidence of his guilt without independent corroborative evidence. The weight to be given to such a confession must, it is clear, depend upon the circumstances under which the confession was originally given and the circumstances under which it was retracted including the reasons given by the prisoner for his retraction. It is obvious that a confession in itself reasonable and probable must, if repeated more than once and retracted only at a late stage in the proceedings, have greater weight attached to it than a confession made once only and retracted after a short interval. There are other circumstances which may go to diminish or to increase the weight that should be attached to a confession. In the present case certainly the circumstances under which the confessions wore originally made and the fact of their repetition a few days later are circumstances which clearly ought to be brought to the attention of the Jury. The question which should have been put to them with regard to the confessions was not whether they were corroborated by independent evidence, but whether--having regard to the circumstances under which they were made and the circumstances under which they were retracted--having regard to all the circumstances connected with the confessions--whether it was more probable that the original confessions or the statements made before the Committing Magistrate were true. We think that the omission on the part of the Judge to place the circumstances before the Jury and to put this question to them amounts to a misdirection, and the misdirection is the more important, because except in the second paragraph of the summing up--part of which has been quoted--there is no other mention whatever of the confessional statements.
4. The fourth paragraph of the summing up deals with the subject of the searches, and the Public Prosecutor takes exception to various observations of the Judge made in this and in the fifth, eighth and tenth paragraphs. The Sessions Judge in effect recommends the Jury to regard the evidence respecting these searches with the greatest possible suspicion, being of opinion that the precautions, which the law requires, were not duly observed. The points which be takes are that the persons called upon to witness the searches were selected by the Head Constable and the Inspector, and were not shown to be respectable inhabitants of the locality in which the. place of the search was situate. The observations made by the Sessions Judge are, in our opinion, founded on a mistaken view of the law, and were calculated seriously to prejudice the prosecution. Section 103, Criminal Procedure Code, requires the officer about to make a search to call upon two or more respectable inhabitants of the locality in which the place of the search is situate to attend and witness the search. There is nothing in that or in any other Section of the Code to justify the notion that the required witnesses are to be selected by any person other than the officer conducting the search. Assuming what is by no means clear that the witnesses to the search of the first and second prisoners' houses were not inhabitants of the locality, we do not think that that circumstance must necessarily expose the conduct of the Police to suspicion, or render the evidence of the search inadmissible. In the fifth paragraph of the summing up after referring to the selection of the witnesses by the Inspector, who was present at the time, the Judge observes: 'The usual game of hide and seek is played. The Inspector does not come to this Court to give evidence.' We do not quite understand the force of this observation. If the Sessions Judge had, after the examination of the Head Constable, considered that the evidence of the Inspector was necessary, he ought to have intimated his opinion to the Public Prosecutor and given him an opportunity of calling that official. That course would have been the more advisable having regard to what the Sessions Judge observed in the eighth paragraph of the summing up about the conduct of the Inspector and the inquiry before the Magistrate--an observation which does not appear to he founded upon any evidence before the Judge.
5. Dealing first with the case of the first and second prisoners, we are of opinion that there have been material misdirections to the Jury as well with regard to the confessional statements made by those prisoners, as with regard to the searches made in their houses and the discovery of property said to be part of the stolen property. As regards the other four prisoners, the case stands on rather a different footing, for none of them made anything in the way of a confessional statement. As against the third and fourth prisoners, there is evidence to the effect that they were identified on the night of the dacoity by some of the witnesses. Them is no misdirection in the charge with regard to that part of the case. Against all the four prisoners--prisoners 3, 4, 5 and 6--there is evidence that searches were made in their houses, and parts of the stolen property found therein. We have already dealt with the general observations of the Sessions Judge regarding these searches contained in the fourth paragraph of the summing up; dealing with the ease of the fourth prisoner, in the eighth paragraph of the summing up, the Sessions Judge makes other observations to which exception is taken. He refers, as already mentioned, to the conduct of the Inspector and the inquiry before the Committing Magistrate. He speaks to one of the witnesses, Kunhi Komu, in language which would be suitable to the counsel for the defence, but certainly not suitable in the mouth of a Judge directing a Jury. Bat the most serious objection taken to the observations in this paragraph is the reflection on the conduct of the Police in taking the witnesses whom they had summoned from the search of one house to that of another. The Sessions Judge says that the Inspector took these witnesses from one house to another 'just as if they were a theatrical company Proceedings of that kind are open to the utmost suspicion.' This is an observation which ought never to have been made. The Head Constable testifies to the difficulty of finding respectable persons in the neighbourhood in which the dacoity took place. We can see no reason for supposing that the conduct of the Police in this connection was influenced by any improper motives. In the tenth paragraph of the summing up, the Sessions Judge charges the Head Constable with the direct breach of the Police Regulations, in that when he went to the attom in the course of the search of the sixth prisoner's house, he had a loose shirt on. It is not apparent even according to Venkateswara Patter's evidence, that there was any breach of the Police Regulations, because he does not say that the Head Constable's body was not examined before he began the search, and that is the effect of the Regulation to which we suppose the Sessions Judge refers. However that may be, the Head Constable was not examined about it, and it was therefore unfair to make this charge against him. We are of opinion that there has been misdirection by the Sessions Judge with reference to the evidence touching the searches of the houses of the third, fourth, fifth and sixth prisoners, and the misdirection is a material one. We set aside the acquittal of all the prisoners, and direct them to be retried by the Sessions Judge of North Malabar.