1. The three appellants Bhakta Bhusan Pramanik, Durgapada Modak and Jaladhar Kundu have been convicted of offences punishable under Sections 302 and 392, I. P. C. The two former have been sentenced to death and their case has been referred to this Court by the learned Sessions Judge. The third has been sentenced to transportation for life. All the three persons have appealed and the appeal and the reference have been heard together. Briefly the facts of the case are as follows: There was an old woman named Saibalini who had been living alone for sometime. On the morning of the 16th August last, her nephew went to her house to see her but found the door in the compound wall locked. He scaled the wall, made his way into the house and there found the old woman lying dead on her bed. Information was given to the Police who started to inquire into the matter as being the case of an unnatural death. P. W. 2, Golak Behary Roy, is the landlord of the village. He received certain information which aroused his suspicions. Amongst other things, he was told by P. W. 6, Ranjan Pal, that the three accused persons had been seen together talking in a suspicious manner on the night of the murder, and suggested that they might be in a position to give some information with regard to the old woman's death. This gentleman said that while he and Ranjan Pal were discussing the matter, the accused Jaladhar used to come and sit unnecessarily there and on two occasions actually followed him. On the second day he asked him if he had anything to say.
2. The boy then burst into tears and confessed that the old woman had been murdered by himself and the other two accused. Subsequently, similar confessions were made by the other two accused and Durgapada handed over to Golak Roy four gold earrings which, he said, were part of the stolen property. After consulting a friend, he sent information with the said earrings to the Police and the accused persons were arrested. Jaladhar and Bhakta then made confessions before a Magistrate. The earrings were identified by the daughter of the deceased as her own and she said that they had been left in the custody of the deceased. On these facts, the three appellants were placed on their trial before the learned Sessions Judge of Burdwan and a jury. All three of them were unanimously found guilty. It is clear from what has been said above that the most important evidence is that of the confessions made by the three appellants and it is therefore inevitable that the problem of the respective functions of the Judge and the jury in this matter should have been agitated before us. On behalf of the appellants, Mr. Mookerjea has contended, firstly, that the Judge left the question of the admissibility of these confessions to the jury instead of deciding it himself; and, secondly, that the directions which he actually gave to the jury were not correct in law. Now, it could hardly be doubted that when the prosecution seek to put a confession into evidence, it is the duty of the Judge to decide whether that evidence is admissible or not. Hence, it is sometimes said succinctly that it is the duty of the Judge to decide whether a confession is voluntary and of the jury to decide whether it is true. But when one comes to examine the matter, I think it will become apparent that the first proposition is too broadly stated, while the second is too narrow.
3. When the Judge has to determine whether a confession is admissible, he has to see if it is hit by the provisions of Section 24, Evidence Act. This succinct use of the word 'voluntary' is therefore rather un-fortunate. A confession which is not hit by the precise terms of Section 24 may at the same time not be voluntary in the ordinary sense of the term. The duty of the Judge, however, is to decide whether he will allow the confession to go in, that is to say, he has to satisfy himself that it is not within the prohibition of that section. When once it has been let into evidence and put before the jury, it is for them to say whether it is true or not. Now, I am bound to say that I am unable to see how, when they have to de cide that matter they can ignore the question whether it was voluntary or not. It would be almost impossible to decide the question without considering that matter. It is clear that if the Jury are to perform their duty satisfactorily, they must consider all the circumstances under which the confession was made and it may well be that in many cases there may be circumstances which would support an inference that the confession was not voluntary.
4. The moment one comes to find that, it arouses a suspicion in one's mind whether a confession which is not voluntary is true, I am therefore of opinion that the jury are not debarred from considering whether the confession which has been placed before them was voluntary, I very much doubt if they were so debarred whether such a legal prohibition would have the slightst effect on their minds and I find it difficult to believe that whatever a Judge might say, a jury would accept as satisfactory, a confession which they themselves thought had been induced. The matter was recently carefully considered by Section K. Ghose and Khundkar, JJ., in the case of Kasimuddin v. Emperor 1934 Cal 853. In my opinion, that decision is both good law and commonsense and I respectfully agree with it. Turning to the facts of the present case, the learned Judge said this:
If you are satisfied that these confessions were made and were not obtained by any threat or inducement from Golak Babu, then they are admissible in evidence. It is nobody's case that they were obtained by threat or inducement, because the defence is that they were not made at all .... But if you are satisfied that they were made, then it would be well if you further see if you can feel satisfied that they were not obtained by threat or inducement .... If you think that they were obtained by threat or inducement (although there is no evidence), then they could not be admissible in evidence against them, because Golak Babu is the zamindar of the village and a member of the Union Board, and so a person in authority.
5. As regards the confessions to the Magistrate, the learned Judge said this:
The accused at that time were in police custody. But as these confessions were made in the immediate presence of the Magistrate, these are admissible in evidence. You have to consider whether these confessions made to the Magistrate were voluntary and whether they were true.
6. It was contended by the learned Deputy Legal Remembrancer, Mr. Bhattacharya, that what the learned Judge really meant to put before the jury was this: He had himself come to the conclusion that the confessions were admissible and having put them before the jury, he directed them, if they thought they were not voluntary, to refuse to believe them. He therefore contended that in fact these directions went too far in favour of the accused and the appellants could not possibly have suffered any prejudice thereby. I think that argument might apply to the directions with regard to the confessions made to the Magistrate. But I find it very difficult to interpret in that sense the directions with regard to the confessions made to Golak Roy. The plain meaning of the words used by the learned Judge is that he directed the jury to decide whether they were admissible in evidence or not. If this be so, there can be no doubt that he committed an error in law on this point and it is necessary to consider whether any failure of justice has been caused thereby. Now, there can be no doubt that the jury were satisfied that these confessions were both voluntary and true and it could not be said that any failure of justice has occurred, unless we are to hold that in fact these confessions were inadmissible in evidence and ought not to have been put before the jury at all. Mr. Mukerjee asked us to hold that they were. But we have carefully considered all the circumstances and are unable to reach such a conclusion.
7. As at present advised I should feel rather doubtful whether Golak Roy, who is merely the landlord of the village and a member of the Union Board, is a person in authority within the meaning of Section 24. But in the view we take of the confessions themselves, it is not necessary to decide this point. The appellants themselves never suggested that any inducement was offered. On the contrary, they deny that they ever made these confessions at all and suggested that the whole story had been concocted by this gentleman. There is no evidence to suggest that any inducement was offered. (His Lordship then examined the evidence and concluded.) To sum up: we have no doubt at all that the guilt of the three appellants has been most clearly established and the appeal accordingly must be dismissed.
8. I am of the same opinion on the facts of this appeal. I only wish to add a few observations in defence to the arguments which were addressed to us on the question of the consideration of the confessions in criminal cases tried before a Judge and a jury. There is no doubt that the question is not altogether free from difficulty and I think that the difficulty arises because it is sometimes forgotten that the voluntary or involuntary nature of a confession involves a mixed question of both fact and law. It was long ago decided in the Old Court of Crown Cases Reserved in England in R. Gurner, 1 Den C C 329, that if it is apparent from the evidence produced during the trial that a confession upon which the prosecution originally relied is not a voluntary one, it is the duty of the Judge to make his decision at once and to withdraw that confession and everything contained in it from the consideration of the jury. So that the difficulty only arises when the Court has come to the conclusion that the confession under consideration is a voluntary one when the Court had heard the argument and the evidence to the contrary which it is unable to accept. In that position, it becomes a practical question. There is a presumption, of course, in the law of evidence that all confessions are voluntary. It is a presumption which can be rebutted and frequently is rebutted. But when we come to the position to which I have already referred, where an argument is addressed to the Court upon evidence adduced that a confession originally supposed to be voluntary and admitted prima facie is not voluntary and that argument and evidence is rejected, then the difficult question which had caused a good deal of controversy comes to light. Recently there has been a decision, which is still unreported, to which we were referred by the learned Deputy Legal Remembrancer. That is the case of Badan Ali v. Emperor. The learned Chief Justice of this Court in delivering the leading judgment of the Bench of three Judges, relied upon a dictum of Mr. Justice Coleman, an American Judge, in Burton v. State 107 Ala 108. During the course of the quotation from the American Judge's judgment, we find these words being used in reference to confessions which have been admitted by the Judge after argument against their admissible nature in evidence. The learned Judge said this:
The Jury have no authority to reject them (i.e.. the confessions) as incompetent. But the Jury are the sole judges of the truth and weight to be given to confessions, as they are of any other fact. In weighing the confessions, the Jury must take into consideration all the circumstances surrounding them and under which they were made, including those under which the Court declared, as a matter of law, they were voluntary. In weighing confessions, the Jury necessarily consider those facts upon which their admissibility, as having been voluntarily made, depends. While there is no power in the Jury to reject the confessions, as being incompetent, there is no power in the Court to control the Jury in the weight to be given to facts.
9. That passage shows that the real difficulty is to distinguish in an involved question of this character where law ends and fact begins. But the American Judge has taken the broad line that whereas it is the function of the Judge to give his decision on the purely legal side of the question before the Court is safe to leave open the final decision of fact in their verdict to the Jury, even though that decision may involve some disagreement with the Judge in his decision of mixed law and fact on the preliminary question as to admissibility. That to me seems both good law and good sense, and as my learned brother has observed the question is an academic one. On the other hand it is not altogether academic, when one considers that any Judge trying a case with a jury can safely leave every question of fact to the jury, provided they are cautioned carefully and sufficiently enough. Finally, we must consider the question of sentence. All the three appellants were convicted of murder. Appellants 1 and 2, viz. Bhakta Bhusan Pramanik and Durgapada Modak, were sentenced to death. They are respectively aged 22 and 27 years. The third appellant, Jaladhar Kundu, who was a young boy of 16, was sentenced to transportation for life under the alternative power invested in Judges in India in murder cases. The learned Judge properly took into consideration the youth of the third appellant. We can see absolutely no reason why these first two appellants should not suffer the extreme penalty. That is no reason in law. I frequently had addressed to me the argument that two lives should not be forfeited for one. It is an argument which I completely reject. When persons are convicted for murder, the only way in which that sentence can be altered is by the exercise of the prerogative by the King-Emperor and it has got nothing to do with law at all. In these circumstances we confirm both the sentences of death.