1. This is a reference by the Assistant Sessions Judge of Khulna, recommending that the verdict of the jury should be set aside in a case in which two accused persons were charged with dacoity under Section 395, Penal Code. The jury were divided in the proportion of 3 to 2, the majority finding the accused guilty. The learned Judge is of opinion that this verdict is manifestly unreasonable, and that the accused ought to be acquitted. We have carefully examined the record for ourselves. We find that one important item of evidence upon which the prosecution relied, consisted of the retracted confession of one of the accused Thakurdas Malo. The evidence of P. W. 11, Maninaddin Ahmad, casts considerable doubt upon the receivability of this confession in evidence at all. This witness is the Head Master of a Madrassa, and he is also a member of the local Union Board. Speaking of an occasion immediately after the arrest of the accused, he stated as follows:
There wag some talk between the Daroga and Thakurdas about getting confession from Thakurdas. The Daroga told Thakurdas that if he admitted the guilt he might be made an approver and be released of the charge. I too asked him to say what, he knew.
2. The learned Deputy Legal Remembrancer, on behalf of the Crown, has contended that in so far as the Magistrate who recorded this confession, was satisfied that it was voluntary and in so far as the learned Assistant Sessions Judge has admitted the confession in evidence, the confession should not now be excluded as evidence. We cannot accept this argument. Section 24, Evidence Act, is in these terms:
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority, and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
3. When a confession comes before us, either in appeal, or upon a reference under Section 307, Criminal P.C. or in any other manner, it is open to this Court to say whether the making of a confession appears, within the; meaning of Section 24, Evidence Act, to have been caused by any inducement, threat, etc., as contemplated by that section. Upon the evidence of a witness to whom we have just referred, we may say at once that it does appear to us that this confession falls within the mischief of Section 24, Evidence Act. It must, therefore, be excluded. The question which next arises is whether we should order a retrial of the accused persons upon the evidence which remains. The learned Assistant Sessions Judge has in his letter of reference, summarised the defects in that evidence We agree that the evidence is infirm for the reasons given by him. There is one other reason, to which he has not referred, why the evidence of the prosecution in support of the charge of dacoity should not be accepted. The case for the prosecution was that the two accused were recognized by three inmates of the house in which the dacoity was committed. These persons were p. W. 1 Madar Chandra Biswas, the complainant, p. W. 2 Kumudini Dasi, his wife, and. P.W. 5, Fulmala Dasi, his mother. All three of these witnesses say that they recognised the two accused persons in spite of the fact that these two persons had attempted to disguise themselves. They also say that the dacoits who entered the room tied the complainant as well as the two women up with strings. They further depose, that after the dacoits left, they shouted for assistance, whereupon a number of neighbours arrived on the scene. One would have expected that the first thing these neighbours would have done in common humanity, would have been to untie these three unfortunate people, yet the inmates as well as the neighbours maintain that no attempt whatever was made to release the complainant, his wife and his mother until after the arrival of the President of the Union Board, who, being sent for, came to the house sometime in the morning. It is the evidence of the President, that these persons were untied after he gave orders for their release. Apart from the fact that there is a good deal of discrepancy between the various witnesses as to the reason why the complainant and his womenfolk were not immediately untied, we consider that this evidence has the effect of introducing a considerable element of suspicion into the case for the prosecution. It seems to us, that one reason which might have induced the persons concerned to allow the inmates of the house to remain trussed up until the arrival of the President of the Union Board, was their anxiety to procure the evidence of the President of the Union Board to the fact that they had been tied up during the night.
4. We do not think it would be right to order a retrial of the accused persons on the evidence which remains after the retracted confession of the accused Thakurdas Malo has been excluded. The reference is accordingly accepted and the accused are acquitted. If they are on bail, they will be discharged from their bail bonds, and if they are in custody, they will be released forthwith.
5. I agree that this reference must be accepted, but for reasons somewhat different from those given by the learned Judge referring this case. It is unnecessary for me to deal in detail with the facts of this case as they have already been dealt with by my learned brother. The confession made by the accused Thakurdas Malo should never have been put in evidence in view of the statement made by P.W. 11, Maninaddin Ahmed, who says that the investigating officer told the accused that if he confessed he would be most probably pardoned. The learned Judge seems to have completely ignored the provisions of Section 21, Evidence Act. That section clearly lays down that where it appears to the Court that a confession was obtained by an improper inducement such as is mentioned in the section, then that confession is irrelevant in a criminal proceeding. I would draw the learned Judge's attention to the words 'appears to the Court.' It is not necessary that it should be proved that the confession was brought about by improper inducement. It is quite sufficient if circumstances are placed before the Court which would make it appear that the confession was so induced. There can be no doubt that in the present case there was very good ground for the Court to apprehend that the confession was obtained by improper inducement. This is not the only error which the learned Judge has committed. When charging the jury about the genuine ness of the confession he says this:
The Magistrate recording the statement was authorised in that behalf and you have got from his deposition before us that he properly followed the rules and procedure as enjoined by the law. There is, therefore, a presumption of Section 80, Evidence Act, that the document is genuine, that the statements as to the circumstances under which it was recorded are true and that it was duly taken. We are thus quite at liberty to presume that this confession of Thakurdas was voluntarily made by him. Thakurdas no doubt is not bound to make any statement in this behalf, but there must be evidence to rebut this presumption if he likes to say that his statement was not voluntary. He has not suggested anything of the sort in his own statement.
6. The learned Judge has gone entirely wrong I in his interpretation of Section 80, Evidence Act. There is nothing in Section 80, Evidence Act, which would justify this view. All that Section 80 says is that the Court will presume that the confession was duly recorded and that the circumstances under which the confession was recorded are such as have been set down in the record made by the Magistrate. It says nothing about there being any presumption regarding the voluntariness of the confession. The learned Judge was, therefore, entirely wrong in telling the jury that they must presume that the confession was voluntary, and that there must be evidence to rebut this presumption. He was equally wrong when he said that there was nothing in the accused's a statement to indicate that the confession was not voluntary. The accused pleaded not guilty and he retracted his confession. This is certainly a circumstance to indicate that the case of the accused was that his confession was not a voluntary one. The learned Deputy Legal Remembrancer says that even if it be held that the confession was wrongly admitted the learned Judge told the jury not to take any notice of this confession, and he contended that, therefore, it should be inferred that the admission of this confession in evidence had nothing to do with the verdict of the jury. I am not impressed by this argument. It is true that the learned Judge told the jury that in his view the confession was. not of much value. He took great pains to show the defects in the confession, but after doing this is what he says:
You have, gentlemen, to find for yourselves whether you shouldregard this confession as true, and should not allow yourselves to be in any way influenced by what I have just expressed.
7. Therefore it is quite clear that the Judge did tell the jury that they could rely upon this confession if they thought proper. In this connection I would point out to the learned Judge the futility of making remarks like these. I can never understand why a Judge should take great pains to direct the jury as to the view that they should take about a matter and to tell the jury what his opinion in the matter is and then tell the jury that they should in no way be influenced by what he has expressed. It seems to me to be sheer waste of time to tell the jury things and then to tell them not to take any notice of what has been said. It was entirely wrong for the Judge to tell the jury that they should not be influenced by what he has said. What he should tell the jury is that they should take, what he has said, into consideration, but that they should remember that they are not bound to accept his view. The question remains as to whether a re-trial should be ordered. I agree with my learned brother that if the confession be excluded the other evidence is not of such a nature as to justify us in directing a re-trial.