Pandrang Row, J.
1. This is an appeal from the judgment of the Sessions Judge of Meiiore, dated July 13, 1936, in Sessions Case No. 11 of 1936 in which the two appellants were charged with murder but were convicted as follows: 1st appellant under Section 326, Indian Penal Code and the second appellant under Section 201, Indian Penal Code. The 1st appellant was sentenced to rigorous imprisonment of 10 years and the 2nd appellant to rigorous imprisonment for 3 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 the 1st appellant Subbaram-ayya for some years prior to the occurrence. The learned Sessions Judge observes that-the 2nd appellant also was one of those to whom the deceased was distributing her favour but there does not seem to be sufficient evidence to support this view it is, however, established that the 2nd appellant and the 1st appellant 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 February 15, 1936. The peon of the School saw a buudie of cloths near the well and he reported the matter to the Headmaster, P.W. No. 15, and as he suspected that there was something like a deadbody in the well a report was sent by the Headmaster 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 alter 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. No. 7, who said that he had seen appellants Nos. 1 and 2 and the deceased near the well the previous night at about 9 P.M. The 1st appellant was arrested that very night in his house at Kavali. The 2nd appellant is said to have left Kavali, the next morning by train and he was ultimately arrested on the 18th at Sitaramapuram 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 the 2nd appellant 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 March 1, 1936, to the Stationary Sub-Magistrate of Kowur who was so empowered. The Sub-Magistrate, P.W. No. 8, kept the 2na appellant in a separate ceil in the sub-jail and after giving him two days' time for reflection recorded a confession from him on March 3. 1936.
2. The case for the prosecution is that the two appellants and the deceased went together to the School compound in question some time in the evening of February II, 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. No. 9 a cousin of hers, which was heard or seen by the 1st appellant. 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 the 1st appellant to suspect that Polugadu was one of the newly found lovers of the deceased, and that it was because 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. No 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 the 2nd appellant; 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 the 1st appellant, the stick itself being that of the 2nd appellant. The injuries caused were not very serious so far as appearance 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 Lira 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 the 1st appellant has been convicted is one of causing grievous hurt with a dangerous weapon and the offence of which the 2nd appellant has been convicted is one punishable under Section 201, Indian Penal Code. 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, Indian Penal Code, 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, Indian Penal Code. 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 the 1st accused would fall under Section 326, Indian Penal Code, 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.
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.
3. I turn now to the all important question of the admissibility of, and the weight to be given to, the confession made by the 2nd appellant, 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 the 2nd appellant. 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 the 2nd appellant is to some extent supported by the fact that only three days later, that is to say, on March 6, the Sub-Inspector of Police, i.e., the Officer investigating the case, told, the Magistrate who recorded the confession that the question of taking the 2nd appellant 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 the 2nd appellant 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 the 2nd appellant 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 take the 2nd appellant as 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 of the Code of Criminal Procedure (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 he has warned the accused that it is not intended to make him an approver and that anything he says may be used against him.
4. 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 the second appellant 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 he 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 the 2nd appellant that it was not intended to take him as an approver. This was in his cross-examination. The prosecution has not elicited 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 fifty years past. The rule was made as there-suit of a representation made by the High Court as will be seen from G.O. No. 2883, Judicial, dated December 17, 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.
5. The Governor-in-Council recognised 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.
6. 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 of the Criminal Procedure Code 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.
7. 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 precaution which have been prescribed as necessary and observed 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 string suspicion that the confession was not voluntary, a suspicion so strong the it when taken in connection with other circumstance, 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.
8. The learned Sessions Judge seems to have thought that this retracted confession could be taken into consideration even as against the 1st appellant forgetful of the fact that till is was not a case in which the confession of the 2nd appellant 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 re Periaswami Moopan 54 M. 75 : 129 Ind. Cas 645 : A.I.R. 1931 Mad. 177 : 32 Cri. L.J. 448 : 59 M.L.J. 471 : (1930) M.W.N. 858 : 32 L.W. 527 : Ind. Rul. (1931) Mad. 309. This is therefore a case in which the confession, even if unretracted, could not be taken into consideration as against the 1st appellant; and the learned Sessions Judge has erred in law in not only taking it into consideration against the 1st appellant but in actually basing his finding about the guilt of the 1st appellant on such a confession. It is astonishing to find, in view of the actual confession made by the 2nd appellant the learned Sessions fudge saying
This is not the case where the 2nd accused wants the hangman's rope to be wound round the neck of the co-accused and assigned to himself a minor part.
9. In fact, this is indeed a case of this kind, for while assigning the maker of the confession assigns to himself the comparatively minor part of assisting the person who killed the woman and 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 1st appellant had given a few blows with the 2nd appellant's stick to the deceased, and according to the learned Sessions Judge's view the 1st appellant 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 the 1st appellant's mind. Tue learned Sessions Judge was of opinion that they went to the school c impound ''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 the 1st appellant 'ever intended to give anything more than a good hammering to his concubine for her suspected unfaithfulness.
10. 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 the 1st appellate. Where as in the case the prosecution seeks to rely almost entirely on a confession, it is all the more necessary that every precaution must have been the 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.
11. The convictions and sentences of both the appellants are, therefore, set aside, and they are acquitted under Section 423, Criminal Procedure Code. Their bail bonds will be cancelled.