1. The appellant Kali Charan Haldar was tried with one Afazuddin Sheikh by the Additional Sessions Judge at Malda and a jury of nine, charged with an offence under Section 396, I.P.C. The jury found the appellant guilty' unanimously. By a majority they found Afazuddin 'not guilty.' Thereupon the Judge acquitted Afazuddin, accepting the verdict of the jury and sentenced the appellant to death, saying that he had admitted several previous convictions in dacoity cases, that he was a hardened criminal, obviously dangerous, that he should be removed from further possibility of harming society and that he had withdrawn from his confessional statement which might have been regarded as a sign of grace. The appellant had no pleader to defend him and, therefore he was defended by a pleader appointed by Government.
2. The facts cut of which this case arose are shortly as follows: On 2nd April 1932, there was a dacoity in the house of a man named Kristo Mandal. He and his son were away at the time. But a number of women belonging to his household were sleeping there. None of the dacoits were recognizable, because they had smeared their faces with chalk. There is no doubt whatever about the dacoity having been committed. The dacoits beat the inmates of the house, dug up the floor and broke into all the rooms. While the dacoity was going on, the villagers were roused and the house was surrounded by the choukidar and a servant Nimai who called for assistance. When the dacoits saw this, they fired a gun from inside the house wounding some of the people outside. Then they came out of the house and escaped. The choukidar threw a spear at them and struck one man. Kulu who had been sleeping on the verandah of the house with Nimai threatened to attack them. They fired a gun and he fell down dead. Suren also fell down dead. The man whom the choukidar had injured with a spear died of his wounds; but the dacoits picked him up and escaped. The choukidar want into the house and found that Khiroda had been injured and that a dacoity had been committed. Information was lodged at the thana and the Sub-Inspector took up the investigation. Daring the investigation he found a head which had been cut off from the dead body of the dacoit who had been speared by the chowkidar. Owing to the fact that none of the dacoits had been recognised, the investigation went on for several months without success. It is clear that the investigation would never have been successful, had it not been that the present appellant made a long confession in which he admitted a series of crimes and implicated a large number of persons, including himself. One of the women said that the dacoits took a pair of makri, a pair of patchuri, two pairs of ruli and other things. Subsequently, some of these articles were recovered as I shall explain hereafter, and ware identified by the women of the house.
3. An old woman named Harimani was examined who said that the appellant stayed with her before the dacoity for three days and after the dacoity he and Afazuddin again stayed with her for three days and that the appellant hid some churis in the floor of her room. She said that they were in the floor of her southern hut, but, in fact, they were recovered from the northern hut. She says that she heard about the dacoity in Kristo Mandal's House at that time. Subsequently, the Sub-Inspector searched her house and, according to her evidence, the appellant, who was still there, escaped at the time. It is said that she knew the appellant some years before when he had been her neighbour at a place called Haripur, At a later date the appellant was taken to her house and there in the presence of the search witnesses he produced a makri from the thatch. It is clear therefore that this conviction must depend substantially on the question whether the appellant's confession can be relied upon. The evidence of the beggar woman, Harimani, admitting, as she does that some of the stolen property was given to her by the appellant, cannot be considered satisfactory and the evidence with regard to the discovery of the makri in the thatch is suspicious. It is true that the rest of the goods were found in the hut, and it seems curious that this piece of ornament should have been hidden in the thatch of the house. There is some reason to think that as the makri was an article which the woman of the house seemed to remember very clearly, somebody thought it necessary that the makri should be produced in order to strengthen the evidence for the prosecution. The confession was retracted and was apparently challenged by the pleader who appeared for the appellant at the trial. Thereupon the learned Judge dismissed the jury for the day and heard the arguments in their absence. This was the proper procedure. Where it is convenient for the jury to be out of Court while there is such a discussion, it is, always desirable.
4. It is for the Judge to decide whether a confession was voluntary or not. The examination and cross-examination of the Magistrate does not seem to have been very thorough. The Magistrate described how he warned the accused in the usual way,' and was satisfied that the confession was voluntary. In cross-examination, he said that the accused was produced from jail by a constable, that he did not give the appellant any particular time to reflect nor did ha ask him whether he had any conversation with any other police officer, except the constable who produced him. He did not specifically caution the appellant that he need not fear the police. He told him that there was no need to confess and that he need not be afraid. The fact that this inquiry was so unsatisfactory is explained by the prosecution by saying that at the time the facts which have since been recorded by the appellant in his petition of appeal were not known to the prosecution nor had any suggestion of the kind been made to them. Nevertheless, it seems to me extraordinary, when once the voluntary character of the confession had been challenged by the defence that the Judge did not make a much more thorough inquiry to see whether, in fact, the confession was voluntary. This confession had boon taken at extraordinary length throughout a considerable number of days. It described in the greatest possible detail a whole series of crimes which had been committed, and it was obvious that he was implicated in each one of them. I should have thought it would have struck the Judge at once, from his ordinary knowledge of human nature, that it was most likely that such a confession had been induced by some promise or hope held out or threat made to the appellant.
5. It is just the sort of confession that one would expect to be made where the police promised the appellant that if he assisted them in clearing up a number of pending inquiries, and if he implicated the suspects in such a way as to assist the police to bring them to conviction, he himself would be treated as an approver and would, after giving his evidence, be released, and would escape from the consequences of the crimes which he had admitted. Yet neither the Magistrate, when he recorded the confession, nor the Judge at the trial, made any attempt to clear this matter up. I should have thought that it would have been desirable to call the police officers who had been in contact with the appellant during the time when the inquiry before the Magistrate was taking place and up to the time of the trial. The result was that the Judge admitted the confession in evidence holding, as he did, that it was made voluntarily, that is to say, he was satisfied that no such promise had been made to the, accused. Nor that he had been threatened, for instance, by telling him that his accomplices had already confessed, and that if he confessed, he would be treated as leniently as those who had admitted their guilt. These points seem to me to be obvious as points which ought to have been thoroughly investigated before the Judge decided to admit this confession. The result was that when the accused was examined during the trial, he said that he had been seized and produced before the Daroga Babu by three men Samiruddin, Yanus Miah and Asir Sheikh. He also said:
A sepoy beat me and sent me up. I was taken to the S.D.O. and asked to make a confession. Afterwards the C.I.D. Inspector came to the jail and said that I would be released and rewarded if I would name Harimani and Afazuddin.
6. He tutored the appellant to mention the names of many parsons, but he denied that he had any knowledge of the dacoity which was the subject matter of the present case. He has submitted a very long petition of appeal to this Court in which he describes certain matters of business connected with his family, and says that, owing to the constant harassment of the police, he was unable to stay in his native village. Finally, he found it absolutely necessary to come back, and on his arrival he found that his house had been pulled down and his father, his son and his mother were missing. Before he could go to the police to make a complaint about this, he was seized by his co-villagers Somaddi Molla, Ajij Sheikh and Enous Meah, his hands were tied behind him and he was marched off to the thana where he was handed over to Aswini Babu Daroga. Aswini Babu and a C.I.D. Officer Sudhir Babu pressed his arms and legs, struck him on the head with a ruler and said:
Tell us, you fellow, at what places you committed thefts and dacoities.
7. The next day, he was produced before the Subdivisional Officer at Malda and complained that he had been assaulted by the Daroga Babu and the C.I.D. Officer. Thereupon the Subdivisionl Officer sent him for examination to the jail doctor. We adjourned this case in order that the Grown might have an opportunity of investigating the charges made in this petition of appeal and some information has now been obtained. It appears that some of the statements of the appellant are accurate, and that if was found on examination that he had a number of injuries on his body which confirmed his statement. After a few days he was produced again before the Subdivisional Officer, and for failing to report himself as a C.T. Act member, he was sentenced to a year's imprisonment and sent to jail. A few days afterwards, the C.I.D. Inspector came to the jail and had the appellant called before him into the office room. The Inspector said:
Kali, you should give the names of the persons I ask you to give, and the names of the places where the thefts and dacoities were committed. If you don't do as we tell you, we will give you more thrashing than we have done already. We will have all the tin sheets of your houses sold by auction.' (This was the property to which the appellant referred in the beginning of his petition.) 'If you won't listen to me, I wil1 do you a great mischief. If you will listen to me, I will have your tin sheets returned and I will engage men and have all the houses of your bari restored to their former condition. I will have a sum granted to yon as a reward from Government and your name will be removed from the list of C.T. Act offenders. I will also get the sentence of 15 months' imprisonment passed on you set aside: I will procure your release in all these cases and I will cite you as a Government witness. I will treat you to Rasagollas, Biris and Sandesh on the days of hearing.
8. Thereupon, the petitioner asked him who he was and he said that he was a C.I.D. Officer from Calcutta. He asked the appellant to reflect over the matter and added that he would come over again in two or three days. He came again and the appellant said that he had reflected over the matter, but that nobody would trust the police, and asked him how was he to trust him. The officer then said that he was a Hindu and that if he liked, the appellant could administer an oath to him. Thereupon he took an oath before the petitioner and the latter trusted him and asked him whose names he was to mention. Then the appellant goes on to describe how various names were suggested to him and how he was tutored to mention the names of the places where the dacoities were committed. At the end, the C.I.D. Officer instructed the appellant to make an application to the District Magistrate offering to secure the arrest of the dacoits. The Inspector then went away and the appellant drew up an application to the District Magistrate. He was produced in Court two days afterwards. The Inspector then told him what he was to say and that if he mentioned the police, it would do him no good, nor would the police be able to make him an approver. Subsequently, he was taken to the police every day and produced before the Magistrate and treated to sandeshes and + and afterwards taken to jail.
9. After a few days, he asked the C.I.D. Inspector about his property. He was reassured by the police and after that he was told at night that there was a pair of makris secreted in a quantity of straw inside the west bhiti ghar in the bari of Harimoni, and the Inspector would take him there and show him by signs whereupon he was to discover them and that he was to find in a similar way some articles hidden in an adjoining jungle. Afterwards he was kept in the thana for three days and sent up. After he had been in jail for a few days the Inspector had his son and brother brought to the district headquarters at the expense of the Inspector and on their arrival the police made an application to the District Magistrate for the return of the tin sheets. Later on, the C.I.D. Inspector came and told him how he had his elder brother and son brought there and a petition drawn up and, as a result, the Magistrate had ordered a return of the sheets, and he promised to bring the elder brother to the jail in order to prove his bona fides. A couple of days afterwards, he came to the jail with the elder brother who confirmed what the Inspector had done with regard to his property. Thereafter the Inspector told him that certain cases were ready and the hearing had been fixed and that the appellant was not to worry and that the police would do him no harm but good. On being brought to Court, he was again treated to sandeshes and biris. These were the two cases from Pukhuria and Haripur. On the last day, the Inspector told him that he would have to give evidence before the Court. Afazuddin and Chota Faquir were on their trial in that case and they complained to the Court that the C.I.D. Inspector had been treating the appellant to sandeshes and biris and tutoring him to name them and that if the Court would order a search, biris would be found on him. Thereupon, the Magistrate asked him to produce the biris, as otherwise he would be searched.
10. The appellant admitted that he had the biris on him. The Magistrate asked the petitioner where he got these from and he told him that the C.I.D. Inspector had given them to him. In the end he was put on trial himself, instead of being called as a witness. Now, it is quite true that this petition is not evidence. Nevertheless, we must take it into consideration just as much as it is necessary to take into consideration the written statement of the accused which also is not evidence. The fact that the police were in a position to make the suggestions which are recorded in this petition is now admitted by the Crown, because Mr. Bhattacharya has, in the meantime, ascertained that the appellant was arrested on 3rd November as stated, by his co-villagers, that he was examined on 6th November when the injuries were found on him and that he was sentenced on 10th November under the C.T. Act, also that on 26th and 27th November the C.I.D. Inspector interviewed him in the jail for the purpose of ascertaining facts to be used in this trial. All that we know about what took place between the Inspector and the appellant is what is recorded in this petition. It may be untrue; but if the learned Judge had made a proper inquiry before he admitted this confession in evidence, the police would have had an opportunity of stating what, in fact, took place in the jail.
11. At the end of the confession, the appellant stated that the reasons for his confession were that he had committed so many crimes and would probably be either hanged or transported for what he had done in this dacoity and that, feeling disgusted with his past life, he desired to make this confession. All that I can say is, that my experience of life which, I must admit, is not a very long one so far as this country is concerned, leads me to disbelieve the suggestion that a confession of this kind is ever made for the reasons elicited by the Magistrate. I can understand a simple admission of guilt, free from a detailed description of events and matters of that kind; this is quite usual when an accused person feels that the game is up. But a confession of this kind with this amount of detail and covering so many crimes leads me to think that it is much more likely that it was made in response to a promise by the police, that if he helped them in this way, he would escape the consequences of what he had done. It has been suggested by Mr. Bhattacharya that we ought to send this case back for a new trial, in order that all these matters may be re-investigated. If we have to keep on sending cases back for retrial, owing to the fact that at the trial they have not been properly handled, and the Crown have not elicited the facts which are necessary for the purpose of proving their case, we shall repeatedly have to send matters back for these reasons.
12. In a matter of this kind, a prisoner in this country is in the unfortunate position of not being able to give evidence himself and obviously there will be no other witness of what takes place between him and the police in the jail. The proper course in this case, in my opinion, was for the Judge to examine the accused on these points in the absence of the jury and to ascertain from him, without cross-examining him, what it was that he stated and what the Inspector said and promised. Thereupon, the police could have been further examined on those points. I do not think it desirable in the circumstances of this case that it should be sent back for retrial. I do not say that I am satisfied that this was not a voluntary confession, because there is not sufficient evidence to enable me to hold that; but I do say that the circumstances are so suspicious that I am inclined to believe that the confession was obtained in the way which I have already indicated. It is obvious therefore that as the case rests almost entirely upon this confession, the conviction cannot be supported. The result is that the conviction and sentence must be set aside and the appellant acquitted.
13. I agree with the order setting aside the conviction and sentence in this case. I am not however prepared to hold on the legal evidence before us that the confession was inadmissible on the ground that it was due to an inducement, threat or promise proceeding from a person in authority and having reference to the charge. I base my decision on two considerations, first that the confession was a retracted confession; and secondly, that the extraneous evidence adduced by the prosecution in support of that confession is not, to my mind, of sufficient cogency to warrant any conviction being based on the confession itself. I think the position is that in the present state of the evidence, the accused is entitled to the benefit of the doubt.
14. I agree and have no hesitation in coming to the conclusion that this confession was obtained by means of an inducement. That is the explanation which the appellant has given in his petition of appeal, and in my judgment it is the only explanation which fits in with the facts which have now been elicited. The question whether this confession is voluntary or not was raised at the trial; but the prosecution did not put all the facts before the learned Judge. Before one can say whether such a confession is voluntary, one wants to know all the circumstances in which it was made and the circumstances under which the accused was arrested. The prosecution did not attempt to put these facts before the learned Judge, but merely examined the Magistrate who had recorded the confession. At any rate, there was one fact which should have aroused the suspicion of the Magistrate. The appellant was not produced by the police. So far as we have been able to ascertain, he was not charged with this offence. He was a convict undergoing a sentence of imprisonment in connexion with another matter. In these circumstances, he made a petition to the District Magistrate expressing a desire to make a confession of various offences. If the Magistrate had then investigated into the matter, he would immediately have discovered that this petition was shortly preceded by an interview in the jail between the appellant and a C.I.D. Inspector. My suspicion is always aroused when the prosecution comes into Court with a case that as the result of an interview between a detective and a professional criminal, the latter is moved to repentance.
15. The explanation given at the time when the confession of the appellant was recorded was that he had become repentant. Had that been so, there is no reason why be should not have confessed before. The plain fact of the matter is that this desire to confess followed upon the interview with a police officer. I have no doubt whatever that, apart from that interview, this confession would never have been made. I also agree with my learned brother Lort-Williams that the evidence upon which the prosecution relied to corroborate this confession is highly suspicious. The appellant never said in his confession that he had kept the makri concealed in the thatch of the woman's house. There is nothing to explain what made the police think that it was there or why they should think that the appellant would be anxious to produce it himself. If they had really reasons for supposing that the makri was where it was found, they could have seized it themselves and there was no real reason for asking that a convict undergoing a sentence of imprisonment should be made over to their custody. I accordingly agree with the order which my learned brother proposes to make.