Syed Shumsul Huda, J.
1. Mobarak Ali and his son Subban Ali were placed on their trial before the Sessions Judge of Barisal on charges framed under Section 302, Indian Penal Code, for having caused the death of, one Azmat Ali. The Judge, agreeing with both the Assessors, convicted the accused of the offence charged and sentenced them to transportation for life. Against the conviction and sentence this appeal has been preferred by both the accused.
2. The case for the prosecution mainly rests on the confessions made by the Accused and as the learned Judge has himself said, apart from these there is practically no case Whatever We have, therefore, to consider first of all whether these confessions were voluntary or whether they were the result of any inducement or threat. The Assessors found the accused guilty and apparently they believed the confessions to be true, bat they gave no indication of their opinion on the Question whether the confessions were or were not voluntary.
3. The circumstances of the case are shortly these: the deceased was a nephew of the accused Mobarak Ali. He bad lost his father at an early age and was brought up by his uncle who bad got him married. They lived in the same Bari, deceased occupying the west Bhita and the accused the east Bhita, It appears that the deceased, when he came of age, claimed his father's share of the ancestral properties There was an arbitration and the arbitrators divided the properties between the uncle and the nephew in the proportion of 10 annas and 6 annas Mobarak agreed to the division and himself demarcated the lands but when the deceased went to plough the land that was allotted to him, Mobarak Ali is said to have opposed him. it is also alleged that the deceased complained of his uncles conduct to the landlord and that in consequence the landlord fined Mobarak Ali's sop Sobhan Rs. 25, It is also said that the day before the occurrence Mobarak All's cows had damaged the paddy crop of the deceased which had led to a quarrel between them. This was alleged as a possible motive for the crime in the first information lodged by the wife of the deceased on the 27th of July 1918, On the whole it may be taken as established that the uncle and the nephew were not on good terms. On the 25th of July the wife of the deceased, Rupsan Bibi, had gone on a visit to her father's house. She came back the next morning and found her husband pot in the house. from what she saw on her return her suspicions were roused and she informed, her father who came almost immediately, and there was a search in which the second accused Suban took part under the direction of his father. The dead body was found in a deserted Bhita a quarter of a mile from the house of tap accused and close to it was a Donga boat ha-longing to the deceased. There was a palm, fruit in the boat. Information was lodged in the Thana by the wife of the decease. The Police Sub Inspector came and the dead body was sent for post mortem examination. The cause of death could not, however, be ascertained owing to the fact that the body was in an advanced stage of decomposition.
4. As I have said, the point for consideration is whether the confession is relevant under Section 24 of the Evidence Act. The confession was made at 6 p.m. on the 30th of July 1918. It was subsequently retracted and was said to have been induced by ill treatment of the Police. The Judge was of opinion that there was intrinsic evidence that the confession was true. I shall deal with this matter later on, but it seems to me that before considering the intrinsic evidence bearing on the truth of the confession I must answer the question whether the confession was admissible. In my opinion the confession was made under circumstances that would exclude its admissibility. It appears that the Sub-Inspector of Police came to the spot at 5 p. m. on the 27th of July and from the very beginning he suspected the first accused. It also appears that even before the Sub-Inspector came and almost immediately after the discovery of the dead body, the Chowkidar and the Dafadar had arrested the accused Mobarak Alt, or at any rate kept him under restraint. There is some conflict of evidence as to when the accused were formally arrested by the Sub-Inspector. The Sub Inspector says that he arrested the accused at 2 P.m. on the 29th of July. It is, however, clear that the accused were Under the control of the Police almost immediately on the Daroga's arrival, although they might not have been under actual arrest. The Sub-Inspector admits that on the 28th he questioned the accused from 7 to 10 P. M. He also says that he told Amir Ali, Hujjat Ali, Dafadar and the Chowkidar to talk with the accused. We are not told what was the nature of the talk. As I have said, we are dealing with a retracted confession, It may be that the story of ill treatment is false. At any rate, it has not been proved, but it is always difficult for an accused to prove ill treatment even when it is true. One would naturally ask why was the Sub Inspector questioning the accused for 3 hours, if not for the purpose of getting a confessional statement. Why did he ask the Dafadar, Chowkidar and two others to talk to the accused P. Talk on what subject if not of the murder? The accused Mobarak Ali and his son had been both from the very beginning pretending, (if they were the murderers) that they knew nothing about the murder What happened between the evening of the 26th and the afternoon of the 30th July which influenced the accused to throw off the mask and make a clean breast of their sins before the Magistrate? To my mind, it can only be accounted for by the influence of the Police exercised over them daring the time the accused were under their control I cannot think that it Was a sudden attack of penitence, nor can it he y said that accused were confronted with any very damaging evidence, and thought that it was useless any longer to insist on their innocence. Except on the hypothesis that the confession was due to inducement or threat on the part of the Police the conduct of the accused seems to be inexplicable. The learned Judge was very much impressed by the incident of the palm fruit. Subhan said that as they were carrying the dead body in the boat a palm-fruit fell from a tree in Naimuddin's home stead and his father asked, him to pick it up. He asked his father for an explanation and was rebuked for his curiosity. Mobarak Ali-states in his confession that he put the palm-fruit in the Donga so that it might ore ate the impression that the deceased had gone to steal palm fruits and was killed by a ghost. I do not think this circumstance carries any great weight. The fruit was found in the boat and its presence had to be accounted for It is not a thing that came out incidentally is the course of the narration. If the story told in the confession was a got, up-story, those who are responsible for it must have felt the necessity of getting the explanation both from the father and the son and we have the explanation in the confession of both. I am not, therefore, impressed by the Judge's argument on the intrinsic evidence furnished by the confession itself. If the confession is put aside, as I have said, there is little else to go upon. All we have is the evidence of a quarrel between the uncle and the nephew , but that to my mind is not sufficient to account for the murder of a nephew by an uncle who had himself brought him up from his infancy. In addition to this evidence of motive we have only the evidence of Meherjan that on the 25th of July about midnight, i. e, about the time when according to the confession the murder was committed, she saw two men going from south to north. It was a moonlight night and she could recognise Mobarak Ali and Subhan Ali In cross-examination she said: 'there were same jute plants between her and the accused and their were taller than herself.' In re-examination she explained that she saw the accused after they had passed the jute plants. Between her Bari and the Bari of the accused a khal intervenes. From the earliest moment suspicion had attached to the two accused. She saw them going together at an unusual hour of the night in which the murder had taken place and yet she did not mention the incident to her husband until Monday the 29th, i. e., 4 days after. This is suspicious. It also seems to me that the possibility of death by snake bite or any other cause of like nature has not been excluded. The discovery of the Piri with which the murder is said to have been committed carries no weight. Piris are to be found almost in every cultivator's house
5. For all these reasons I think it would be unsafe to convict the accused upon evidence such as we have before us. I would, therefore, acquit them.
6. I have had the advantage of reading the judgment of my learned brother in this case and concur in the conclusion at which he has arrived.
7. The case turns on the confessions of the two accused. It may be that this is not a case in which the Sessions Judge would have been justified in ruling as matter of law only that the confessions were inadmissible on the ground that they were not voluntary. But if the case had been tried by a Jury, the Jury should certainly have been instructed that if they same to the conclusion on the evidence that the confessions were in fact not voluntary confessions, they should be discarded. When inquisitorial methods are employed, as they seem to have been in the present case, the question will arise whether the confession which follows has not been obtained by inducement or threat or other improper means. The employment of such methods has often been condemned.
8. Moreover, the confessions here were retracted and, the only corroboration which they receive is from the doubtful evidence of Meherjan Bibi.
9. I agree that the conviction and the sentences should be set aside.
10. Conviction and sentence set aside.