Pandrang Row, J.
1. This is an appeal from the judgment of the Sessions Judge of Nellore dated 13th July 1936 in Sessions Case No. 11 of 1936 in which the two appellants were charged with murder but were convicted as follows: Appellant 1 Under Section 326, I.P.C., and appellant 2 Under Section 201, I.P.C. Appellant 1 was sentenced to rigorous imprisonment for ten years, and appellant 2 to rigorous imprisonment for three years. The charges relate to the killing of one Subbi described by the learned Judge as 'a buxom wench of 22 years', who though married and living with her husband, was said to have been kept by appellant 1, Subbaramayya for some years prior to the occurrence. The learned Sessions Judge observes that appellant 2 also was one of those to whom the deceased was distributing her favours but there does not seem to be sufficient evidence to support this view. It is, however, established that appellant 2 and appellant 1 are friends and used to move together. The dead body of Subbi was found in a well in the compound of the Board Elementary School, Kavali, sometime in the morning of 15th February 1936. The peon of the school saw a bundle of clothes near the well and he reported the matter to the Head Master, P.W. 15, and, as he suspected that there was something like a dead body in the well, a report was sent by the Head Master to the Village Munsif, and the Village Munsif who had been given information to the effect that the deceased was missing by the deceased's father, went to the school compound and got the dead body taken out of the well. The Village Munsif does not appear at least to have sent for or informed the police though the police station is in the same town, not only till after the dead body was taken out but even after he examined one of the witnesses who turns out to be the principal witness in the case, P.W. 7, who said that he had seen appellants 1 and 2 and the deceased near the well the previous night at about 9 p. m. Appellant 1 was arrested that very night in his house at Kavali. Appellant 2 is said to have left Kavali the next morning by train and he was ultimately arrested on the 18th at Sitarama-puram where he was staying with a relation of his. He was produced before the Stationary Sub-Magistrate of Kavali on the 19th. It is said that because later on appellant 2 expressed a desire to the police to make a confessional statement the Sub-Magistrate of Kavali who was not empowered to record confessions forwarded him on 1st March 1936 to the Stationary Sub-Magistrate of Kovvur who was so empowered. This Sub-Magistrate, P.W. 8, kept appellant 2 in a separate cell in the sub-jail, and after giving him two days' time for reflection recorded a confession from him on 3rd March 1936.
2. The case for the prosecution is that the two appellants and the deceased went together to the school compound in question sometime in the evening of the 14th of February between 8 and 9 p. m., and were seen talking there. The evidence relating to the previous movements of the deceased and of the appellants is not of very great importance except perhaps that portion of it which relates to the conversation that took place between the deceased and one Polugadu, P.W. 9, a cousin of hers, which was heard or seen by appellant 1. It is necessary to refer to this because the learned Sessions Judge appears to have thought that this conversation, trivial as it was, was the real cause of the tragedy as it led appellant 1 to suspect that Polugadu was one of the newly found lovers of the deceased, and that it was because his jealousy was so aroused that he dogged the steps of the deceased and finally induced her to go with him and the other appellant to the school compound. The evidence of P.W. 7 is to the effect that he saw the two appellants and the deceased near the well talking at about 9 p. m.; what happened thereafter he does not know. As to what happened in the school compound afterwards there is only the confession of appellant 2; and it is on this that the prosecution rests mainly. It is conceded by the Public Prosecutor that if that confession goes it must follow that the prosecution has failed to establish the guilt of either of the appellants. Before dealing with this confession it may be desirable to mention that the case for the prosecution, as shown in the confession, is that the deceased was beaten with a stick by appellant 1, the stick itself being that of appellant 2.
3. The injuries caused were not very serious so far as appearances go. The medical evidence does . not show that there was any serious internal injury, and the principal external injuries were a small incised wound on the centre of the head, a contusion below the right breast, and an irregular contusion on the left side of the abdomen besides a contused swelling on the left side of the neck. According to the Sub-Assistant Surgeon all these injuries, besides the minor injuries noted by him, might have been caused by a blunt instrument. The cause of death is no doubt given by him as shock due to the injuries, but the nature of the injuries does not seem to support fully this conclusion. Unfortunately, the Sub-Assistant Surgeon was not cross-examined as to the cause of death and in this state of the evidence, however unsatisfactory the position may be, it is difficult to say that the medical opinion as to the cause of death is wrong, though if the point was very material and had to be decided, I should say that the cause of death has not been satisfactorily established. It is, however, unnecessary to go into the question of the cause of death because neither of the appellants has been found guilty either of murder or of culpable homicide. The offence of which appellant 1 has been convicted is one of causing grievous hurt with a dangerous weapon and the offence of which appellant 2 has been convicted is one punishable Under Section 201, I.P.C. It may, however, be mentioned that it is very difficult to understand the reasoning of the learned Sessions Judge which led him to think that the stick said to have been employed in inflicting the injuries on the deceased was a weapon of the kind mentioned in Section 326, I.P.C., that is to say, an instrument for shooting, stabbing, or cutting or an instrument which, used as a weapon of offence, is likely to cause death. There is nothing in the evidence so far as I can see to show what the size of the stick was or its weight or its length; the evidence refers to it merely as a stick. It cannot certainly be said that every stick is an instrument of the kind described in Section 326, I.P.C. Finally, the learned Sessions Judge does not clearly explain why he was of opinion that grievous hurt had been caused in this case. The nature of the injuries themselves does not show that they constitute grievous hurt. His view appears to have been that:
The offence committed by accused 1 would fall Under Section 326, I.P.C., because the accused would have known full well that beating a person on the tender parts of the body forcibly with a stick would cause grievous hurt.
4. In other words, he seems to have been of opinion that beating a person with the knowledge that such beating would cause grievous hurt would amount to the offence of causing grievous hurt. This is not correct because unless grievous hurt is actually caused the offence of causing grievous hurt is not established. Mere knowledge that grievous hurt is likely to be caused is not enough if grievous hurt is not actually caused. There is no finding by the learned Sessions Judge in this case that grievous hurt had been actually caused to the deceased. I turn now to the all-important question of the admissibility of, and the weight to be given to, the confession made by appellant 2, namely Ex. B series. In the first place that confession was retracted at the very first opportunity, that is to say during the preliminary enquiry before the committing Magistrate, by appellant 2. His case was that he made that confession under the hope held out to him by the police that he would be taken on as an approver; in fact, he mentioned the particular head constable who held out such a hope. It is not as if we have only a vague statement that the confession was induced by the police. The specific allegation made by appellant 2 is to some extent supported by the fact that only three days later, that is to say, on 6th March, the Sub-Inspector of Police, i.e. the officer investigating the case, told the Magistrate who recorded the confession that the question of taking appellant 2 as an approver was under correspondence. It would therefore appear as if there was some idea in the mind of the Police Officer investigating the case of taking appellant 2 as an approver. Whether the idea arose for the first time only after the confession was recorded or even before is difficult to say. It is a remarkable coincidence that the Magistrate who recorded the confession, while he, with meticulous care put a number of other questions to appellant 2 before recording his confession in the very words contained in the rule (Rule 85 of the Criminal Rules of Practice), did not give him any warning as required by that rule that it was not intended to make appellant 2 an approver. Indeed, this is one of the imperative directions contained in Rule 85 of the Criminal Rules of Practice the first part of which runs as follows:
No Magistrate shall record any statement or confession made by an accused person Under Section 164, Criminal P.C.: (1) until the Magistrate has first recorded in writing his reasons for believing that the accused is prepared to make the statement voluntarily; and (2) until he has explained to the accused that he is under no obligation to answer any question at all and has warned the accused that it is not intended to make him an approver and that anything he says may be used against him.
5. In the second part of Rule 85 certain questions are suggested as questions which may be usefully put by the Magistrate to the accused for the purpose of satisfying himself that the confession is voluntary. All these questions were put in the very words found in the rule by the Magistrate in this case. At the end of the confession, and as a part of the certificate of the Magistrate, it is stated that it had been explained by the Magistrate to appellant 2 that he was not bound to make a confession and that if he did so any confession which he might make might be used against him. It would have been far more satisfactory if this had been done before the confession was recorded than at the end. If the explanation that the accused was not bound to make a confession, and that any confession which he may make may be used against him, had been given only after the confession was recorded, it would not help in deciding whether the confession was voluntary. The certificate itself does not say that this explanation was given to the appellant before the confession was made. The Magistrate who was examined about the confession says that he did not warn appellant 2 that it was not intended to make him an approver. This was in his cross-examination. The prosecution has not elicted the reason why he did not give this warning, whether the omission was deliberate or accidental. Nor did the Court whose duty it was to satisfy itself that the confession had not been brought about as a result of any inducement held out take the precaution of ascertaining why the Magistrate did not give the warning. The importance of this warning cannot be underrated. It may be that the rule prescribing such warnings to be given, namely Rule 85 of the Criminal Rules of Practice, is only a rule of practice and not a rule having the force of law. But that does not conclude the matter. It is a rule which has been in existence for nearly 50 years past. The rule was made as the result of a representation made by the High Court as will be seen from G.O. No. 2883, Judicial, dated 17th December 1887, a reference to which appears to be not out of place. The High Court had called the attention of the Government to the increasing number of cases in which there was reason to believe that:
Accused persons have been subjected by the Police to ill-treatment or torture in order to extort a confession or that confessions possibly so obtained have been too hastily admitted or relied on by the Criminal Courts.
6. The Governor-in-Council recognized the great importance of the subject and expressed his fears that the representation of the High Court was not exaggerated. It was also observed that the commonest course employed by the police
is to accompany a threat or a moderate degree of ill-treatment with a promise or hint that on confession the accused shall be made an approver.
7. One of the suggestions made by the High Court and approved by the Government was that village munsifs should be absolutely prohibited from taking the signature of an accused person to any confession or statement whatever, or even reducing such statement to writing. The second suggestion was, and it was also accepted by the Government that:
No Magistrate should record any confession or statement Under Section 164, Criminal P.C., until he has first recorded in writing his reasons for believing that the accused is going to make such statement voluntarily; and until he has explained to the accused that he is under no obligation to answer any question at all, and warned him that it is not intended to make him an approver, and that anything he says will be used against him.
8. These are the very words of Rule 85(1) of the Criminal Rules of Practice as it stands now. No doubt this rule was issued as an executive order to all Magistrates. But the rule is one which is so obviously a rule of justice and reason that its non-observance must be regarded as a serious defect and must necessarily have a bearing on the question of the admissibility or at any rate, the value of the confession. This is so all the more in cases like this where practically the case for the prosecution rests on a confession obtained without observing the precautions which have been prescribed as necessary and observed as such as a general rule of practice for nearly 50 years; the question is, not whether the omission to give this warning invalidates the confession as being one not recorded in the manner prescribed by law, but whether the omission to give such a warning does not raise a strong suspicion that the confession was not voluntary, a suspicion so strong that when taken in connection with other circumstances it would amount to a fairly strong probability that the confession was the result of an inducement held out to the effect that the accused would be taken as an approver.
9. The learned Sessions Judge seems to have thought that this retracted confession could be taken into consideration even as against appellant 1 forgetful of the fact that this was not a case in which the confession of appellant 2 was in respect of the offence of which both of them were charged, namely the offence of murder. The confession is only a confession about taking part in the disposal of the dead body so far as the maker of the confession is concerned. It does not implicate the maker of the confession in anything which preceded the death. It is enough in this connection to refer to the observations of Reilly, J. in In re Periyaswami Moopan AIR 1931 Mad 177. This is therefore a case in which the confession even if unretracted could not be taken into consideration as against appellant 1; and the learned Sessions Judge has erred in law in not only taking it into consideration against appellant 1 but in actually basing his finding about the guilt of appellant 1 on such a confession. It is astonishing to find, in view of the actual confession made by appellant 2, the learned Sessions Judge saying:
This is not a case where the accused 2 wants the hangman's rope to be wound round the neck of the co-accused and assign to himself a minor part.
10. In fact, this is indeed a case of this kind, for while assigning the cause of death to appellant 1 the maker of the confession assigns to himself the comparatively minor part of assisting the person who killed the woman in disposing of the dead body. In view of the opinion that I have formed about the nature of this confession it is not necessary to deal with the other aspects of the case, for instance the absence of any motive as regards both the appellants. It may be that some feeling of jealousy might have been aroused, but the subsequent conduct in going together to the school compound after appellant 1 had given a few blows with appellant 2's stick to the deceased, and, according to the learned Sessions Judge's view appellant 1 and the deceased thereafter having intercourse just prior to the beating appear to show to an unprejudiced mind that the temporary feeling of jealousy must have ceased to oppress appellant 1's mind. The learned Sessions Judge was of opinion that they went to the school compound after 'composing their differences for the time being', and they were chatting together there. The learned Sessions Judge moreover expresses a doubt as to whether appellant 1 'ever intended to give anything more than a good hammering to his concubine for her suspected unfaithfulness'.
11. As I have found already, the confession, on which the finding of the learned Sessions Judge rests almost entirely in the sense that without it the finding cannot stand, was in all probability made because of some inducement held out by the police officers in charge of the case that the maker of the confession would be taken on as an approver. Even as against the maker of the confession it is not admissible and it must certainly be disregarded entirely as regards appellant 1. Whereas in this case the prosecution seeks to rely almost entirely on a confession, it is all the more necessary that every precaution must have been taken to ensure that the procedure prescribed by Rule. 85 of the Criminal Rules of Practice is observed not merely in the letter but in the spirit. I am of opinion that in this case this rule has not been observed either in the letter or in the spirit. The convictions and sentences of both the appellants are, therefore, set aside and they are acquitted Under Section 423, Criminal P.C. Their bail bonds will be cancelled.