Govinda Menon, J.
1. The main, if not the sole, piece of evidence against the appellant is his confession made before the Stationery Sub. Magistrate and marked as Ex. P. 3 in the case. If that confession is accepted, as true, then, there can be no doubt that the deceased Govindammal was done to death by the appellant by cutting her throat by a deadly weapon. But the question is whether it is safe to act upon that document alone and find the appellant guilty of the offence.
2. The appellant is a young man of 18 or 19 years of age and the deceased Govindammal was practically double his age. She was a woman possessed of some property and the appellant was employed by her as a farm servant to look after the cultivation. During the course of this service, the appellant became intimate with the deceased and stayed in the house of the deceased. Contemporaneously with the appellant's criminal intimacy the deceased was also carrying on with P. W. 5. a cooly, as spoken to by P. W. 4. The appellant's desire was that P. W. 4, a young daughter of the deceased, was to be married to the appellant and to that the deceased was a consenting party, but no marriage took place. Just about four months prior to the occurrence which took place on 6th August 1949, the deceased dispensed with the services of the appellant and the appellant had to go away from the deceased's house. Subsequently, as he seems to have demanded his cultivation wages but, for some reason or other, the deceased was putting him away. Therefore, on 6th August 1949, the prosecution case is that when the deceased was returning from the fields after taking food to her other paramour, P. W. 5 who had, in the meanwhile, supplanted the appellant not only in the affections of the deceased but also in residing in the house the appellant met her on the way, cut her and billed her.
3. There is no direct evidence regarding the crime but it is proved that at 7 P. M. on 6th August 1949 when P. W. 5 was returning he saw the dead body of the deceased on the way. He gave information to the Village Magistrate who passed it on to the police who took up the investigation and charge-sheeted the appellant. The appellant was produced before P. W. 1, by the Sub-Inspector of Police on 11th August 1949 and was remanded to the sub-jail at Pollachi, He was directed to be produced before the Magistrate on 12th August 1949 when the necessary warnings contemplated under Section 164, Criminal P. C., and Rule 85 of the Criminal Rules of Practice were administered and he was again remanded to the sub-jail. The appellant was given time for reflection, was told that he was not bound to make a confession and that if he made a confession it would be used against him and was also questioned as to whether there was any inducement, threat or promise as a result of which he was making the confession. He was also told that if he made the confession it would not absolve him from the guilt. Thereafter the appellant was produced before the Magistrate in his court room on 14th August 1949. The Magistrate says that he warned the appellant on that day also. In his evidence, P. W. 1 says that he was satisfied that on 14th August 1949 the appellant was going to make a voluntary statement. Then he recorded the confession which is marked as Ex. P-3. But we have the record of the previous warning marked as Exs. P-2 P.2 (a) and P.2 (b). In Ex. P.2 (b) which is recorded on 14th August 1949 the Magistrate states that though he explained to the appellant that the latter is under no obligation to answer any question at all and had warned him that it is not intended to make him an approver and that anything he would say might be used against him still the appellant was prepared to give a statement. Therefore, the Magistrate states that he was satisfied that the appellant was prepared to make the statement voluntarily. The necessary warnings were given and the Magistrate therefore proceeded to take the statement on 14th August 1949. There is a further note appended, viz., that since 14th August 1949 and 15th August 1949 were holidays and since the appellant had been warned on 12th August 1949 itself and as the Magistrate has no other time to record the statement he is recording the statement on 14th August 1949.
4. Mr. Viraraghavan for the appellant con-tended that, whatever the Magistrate might have done, he did not put the necessary questions on the day when he recorded the statement to satisfy himself that the accused was giving the confession voluntarily. In support of this contention, reliance is placed on a judgment of the Patna High Court in Emperor v. Kommoju Brahman, : AIR1940Pat163 . At p. 314, one of the learned Judges--Meredith J --discusses this aspect of the case; and at pp. 315 and 316 the learned Judge goes into some detail as to what should be done by a Magistrate when recording confessions. The learned Judge says that the question or questions, whatever the form, must be designed to show whether the accused is making the statement voluntarily. Then he gives specimens of questions which ought to be put and a little later it is observed that, though the law does not compel any particular question or particular form of question, there must be some question or questions the answer to which will indicate whether the confession is a voluntary one. Where there is no such question, the Magistrate has no jurisdiction to record the confession and it will not do to point out to some question which may have been asked but was directed to some other end. In view of that, the learned Judge was of opinion that the mandatory provisions of clause (3) of Section 164, Criminal P. C., had not been complied with, and consequently there was a total absence of jurisdiction on the part of the Magistrate to record the confession.
5. The point as to whether a confession so recorded without the Magistrate satisfying himself on the day when he recorded the confession that it was made voluntarily can be cured by the effect of Section 533, Criminal P. C., was also considered at length. In our opinion, the learned Judge is right in holding that what Section 533 cures is a defect of form and not one of substance, that is as one of us pointed out elsewhere
'where a Magistrate had put the questions actually bat did not record them in the statement and evidence was given that such questions were put and the Court believed that such questions were put the mere fact that the record does not contain anything to show that questions were put in that form would not make the confession invalid or inadmissible in evidence.'
Such a thing can be cured by the provisions of Section 533, that is, the section is intended to cure defects of form and not one of substance as has been held in Farid v. The Crown, 2 Lah. 325 : A. I. R. 1922 Lah. 237 : (1922) Cri. L. J. 149 and Pratap Singh v. The Crown, 6 Lah. 415: A.I.R. 1925 Lah. 605 : (1925) Cri. L. J. 514, but when no questions have been actually asked one cannot resort to Section 533 to cure that defect. It is as if there is a void or a gap which cannot be filled and not a thing which can be validated as the defect was only one of form. In Ramai v. Emperor, : AIR1925Pat191 the Patna High Court has considered a question like this and come to the same conclusion. Our attention has been invited to a decision of this Court in Vellamooji Goundan, In re, 55 Mad. 711 : A.I.R. 1932 Mad. 431 : (1932) Cri. L.J. 526, where Waller J. in delivering the judgment of the Court, was of opinion that there is a conflict between Section 29, Evidence Act and Section 164, Criminal P. C. Section 164 says that the Magistrate ought to put the necessary questions to the person making the confession, should satisfy himself that the confession was voluntary and should ask him whether any inducement or threat had been administered in order to get the confession, But Section 29, Evidence Act, says that even if he had not been warned that he was not to make a confession still a confession made by an accused person can be used if admissible against him. We are of opinion that though Section 29, makes a confession made by an accused person who had not been warned according to the provisions of Section 164, Criminal P. C., admissible in evidence still, we have to find out how far such a confession can be acted upon if the provisions of Section 164 have not been properly complied with. In our opinion, though the confession is admissible still it suffers from the infirmity that the necessary pre-requisites validating a confession and making it acceptable in Court are absent if the accused had not been warned that he was not bound to make a confession. We feel that the learned Magistrate ought to have satisfied himself on the day of his recording the confession that the confession was being made voluntarily and the failure to do so is a not defect of form but of substance which, in our opinion, baa vitiated the confession.
6. Mr. Veeraraghavan then contends that since 14th August was a Sunday and was a holiday, that is, a dies non when no judicial work should ordinarily be transacted, the Magistrate in recording the confession has transgressed the provisions of Rule 85, Criminal Rules of Practice, in that the confession was not recorded during court hours. We feel that there is substance in this argument, but a defect of that kind cannot be said to be a defect of substance but only one of form. If that had been the only infirmity in this case, we would probably have held that the action of the Magistrate did not invalidate the confession.
7. The learned Public Prosecutor invited our attention to the fact that, apart from the confession, there is the evidence of P. W. 11 who has deposed that the addigai which had been proved to have been on the person of the deceased at the time she was murdered had been produced by the appellant when questioned by the Head Constable P. W. 11 on 10th August 1949. From this the learned Public Prosecutor contends that unless the appellant is able to show satisfactorily as to how he came to be in possession of a piece of ornament which was on the body of the deceased at the time she died, the inference is irresistible that it was the appellant who committed the murder. But, in our opinion, though we do not intend to say that the evidence of P. W. 11 is false, the circumstances attendant upon the possession of this article by the appellant are rather suspicious. The prosecution case is that :after the murder P. Ws. 6 and 7 saw the appellant in their house with the addigai of the deceased in his possession along with M. O. 1, the arrival, used for committing the murder. It is stated that the appellant came to the house of P. W. 6 and kept the addigai and the aruval in the house. Later on, he went to his own residence, had a wash, combed the hair came to the house of P. W. 6 and began to play cards as if nothing untoward bad happened within a few hours before that. It is further stated that P. Ws. 6 and 7 put the addigai in the oilcan of a hurricane lantern and gave it to the appellant who took it away from the house of P. Ws. 6 and 7. If that was how the appellant came to be in possession of the addigai belonging to the deceased--this is the prosecution case--we feel the story of how the appellant came to be in possession of the addigai is rather unacceptable. There is quite a lot of suspicion attaching to the conduct of P. Ws. 6 and 7 and, therefore, in view of the prosecution evidence itself as to how the appellant came to be in immediate possession of the jewel, we feel that no inference can be drawn that the appellant took the jewel from, the body of the deceased at the time she was murdered.
8. In this view, it seems to us that the reasons given by the appellant for retracting the confession cannot be said to be false and therefore, the decisions in Kesava Pillai In re, 53 Mad. 160 : A. I. R. 1929 Mad. 837 : (1929) Cri. L. J. 768 and Rajagopal In re, I. L. R. (1944) Mad. 308 : A.I.R. 1944 Mad. 117 : (1944) Cri. L. J. 373 cannot be usefully applied to the facts of the present case. The learned counsel for the appellant also invited our attention to the observations of King and Happell JJ. in Peria Chelliah Nadar In re : AIR1942Mad450 to the effect that it is very unsafe to rely upon a retracted confession in circumstances similar to the present. It is unnecessary for us to rely upon the observations contained therein because, on the materials placed before us, we feel it a matter of great doubt to act upon the confession of the appellant.
9. In such circumstances, the benefit of doubt has to be given to the appellant and, therefore, the appeal is allowed and be is acquitted and directed to be discharged.
10. Before we depart from this case, it is necessary to advert to a circumstance which is rather of unusual occurrence. P. W. 1, the Committing Magistrate, was the same Magistrate who recorded the confession Ex. P. 3 and it is before the same Magistrate that the appellant retracted the confession at the time of the committal proceedings. Though, in our opinion, there is nothing illegal for a Magistrate who has recorded a confession to conduct the preliminary inquiry it is but proper that a Magistrate who would be a witness in the case should, as far as possible, not be the Committing Magistrate. As has happened in this case, at the time when the appellant retracted the confession, it was open to him to have cross-examined the Magistrate before whom the confession was given in order to show that the confession made was not made voluntarily. But that cannot be done where the Magistrate who ought to be a witness was the Committing Magistrate; and, moreover, Section 164, Criminal P. C. says that the Magistrate recording the confession should, as soon as may be, send the confession to the Magistrate who conducts the inquiry. In such circumstances, we feel that the proper procedure should be that, the Magistrate who has recorded a confessional statement under Section 164 should not take part in the committal or the Preliminary Register proceedings.