C.C. Ghose, J.
1. This is a reference by the learned Sessions Judge of Rajshahi and Malda under Section 307, Criminal P.C., arising out of a case, in which the accused Bandhu and Kutub were charged with having committed an offence punishable under Section 302, I.P.C., The jury brought in a unanimous verdict of not guilty against both the accused. The learned Judge disagreed with the verdict of the jury and, being of opinion that, in the ends of justice, it was necessary that the entire case should be laid before this Court, has made this present reference.
2. The case for the prosecution, shortly stated, is as follows : On 1st January 1928, which was a Sunday, the deceased Paltu left his home, after taking his meals in the evening, to look after his kalai in a field, which was at a little distance off to the west of his house. There was a hut in the kalai field. It appears that three persons, named Chhota Uniad, Makbul and Kutub, went later in the evening to the house of Paltu and made enquiries about him. Salikhan Bewa, the mother, told them that he had gone to the field. They called Bandhu, brother of the deceased Paltu, and persuaded him to accompany them. The next morning, Bandhu returned home alone. The mother, Salikhan Bewa, asked him what had happened to Patlu. Bandhu replied that Paltu had gone to Panchananpur. Palfcu did not however return on the next day, namely Tuesday, and Salikhan Bewa, feeling worried went to two co-villagers, Paigambar and Hamid. She told them that Paltu had been absent since Sunday night. Paigambar thereupon questioned Bandhu and the latter promised to go and enquire at Panchananpur. As a matter of fact, Bandhu did not go to Panchananpur. In the evening, at about 10 p.m. Hamid, on his return home from Paigambar's house, heard voices in the adjacent house. He heard Bandhu and Chhota Uniad talking. Chhota Uniad was saying that the dead body must be removed or else there will be great trouble.' Hamid overheard this and went over at once to Paigambar's house and told him what he had heard. Barha Unaid was then present at Paigambar's house and the three went together to Chota Unaid's house. They saw Bandhu come out and Paigambar caught him and brought him to his house. Bandhu asked Paigambar to save him. Paigambar promised to do so; Bandhu said that he, Makbul, Chhota Unaid and Kutub had killed Paltu and had kept his body concealed in the Kalindri river.
3. A number of villagers were then called and, in the presence of them all, Bandhu repeated what he had already said to Paigambar. Kutub, who is a servant of Paigambar, was present at the time at the house of Paigambar and was immediately arrested by the villagers. The chaukidir was informed and both the accused were kept under the custody of the chaukidar during the night. Next morning, Bandhu showed the villagers the spot where the dead body had been concealed. The barley field, where Paltu had been killed, was pointed out by Bandhu. The villagers went to the barley field mentioned by Bandhu and found that the barley plants were damaged, that there were marks of struggle and also marks of blood on the ground. Information was then lodged at the thana; investigation followed and, after the necessary enquiries, Bandhu and Kutub were committed to take their trial in the Sessions Court on a charge of murder. Makbul and Chhota Unaid could not be traced and it is said that they are still absconding.
4. We have been taken through the entire record by the learnel Deputy Legal Remembrancer and by Mr. Chatterji and it would appear that the evidence of Paigambar, Hamid, Hazrat, Gahar, Aujal and Jagir, if believed, would tend to show that Bandhu made a confession before them on the night of Tuesday, implicating himself and Kutub and two other persons. It is not necessary to go through the evidence in detail of these witnesses; it will be sufficient if a few extracts from the evidence of Paigambar are set out herein. Paigambar stated as follows:
At about 9 or 10 p.m., Hamid and other parsons left for home. I was about to go to my inner apartments, when Barha Unaid came. We had talk about missing Paltu. Soon after this, Hamid returned. I asked him why he returned. Hamid told ma that he sat down to pass water on the outer yard, when he heard Chhota Unaid speaking to Bandhu 'the dead body will have to be removed, otherwise there will be great danger.'
Then I, Barha Unaid and Hamid went to the house of Chhota Unaid. Just when we arrived at the house of Chhota Unaia, Bandhu was coming out of Chhota Unaid's house. I at once caught hold of Bandhu and brought him to my house. At my house, I questioned, as to what he was talking to Chhota Unaid, and why ha did not go to Panohananpur to search for Paltu. At first he kept quiet. I then asked him to tell the truth and that I would help him in saving him. He fell into my feet and stated that he, Chhota Unaid, Makbul and Kutub-these four persons-had killed Paltu.
When Bandhu made this statement, Barha Unaid and Bandhu were also present. Barha Unaid then cried out very loudly.
Barha Unaid is cousin of Paltu. Barha Unaid is dead. On hearing Barha Unaid's cry Nasiruddin, brother of Barha Unaid, came. I, sent Nasuruddin to call Hasrath Mandal, Gahar Ali, Mir Waresali, Asgir Mandal and others. They all came. I then made over Bandhu to Hasrath, as ha is the pradhan of the village and asked him to question Bandhu about Paltu. Hasrath questioned Bandhu about Paltu. Bandhu stated to him also that he, Kutub, Makbal and Chhota Uniad killed Paltu.
Hasrath asked Bandhu, as to wherefrom he was called away. He stated that he, Chhota Uniad and Makbul wera lying in wait at the jala (low land) to the west of Sangu's mango garden; and Kutub went and called Paltu from his kuria (hut). After Paltu came, Chhota Uniad and Kutub knocked him down and sat on his chest, Bandhu oaught hold of his legs and Makbul cut his throit with a knife. Hasrath then asked him, 'Where have you kept the dead body?' He replied, 'The dead body has been concealed in the Patia jungle in the Hilsamari dhab.
Hilsamari is about three miles from our village. We did not believe that the dead body was carried so far. We then pressed Bandhu to tell the truth about it. Then Bandhu said : The dead body has been kept under water in the Kalindri river near the Usir. The body has been tied to a post.
5. The evidence of the other witnesses is, as indicated above, on the same lines, and there can be no doubt whatsoever that Bandhu did make a confession before these villagers on Tuesday night. That the confession was of a voluntary character and was true, there cannot be much doubt. The learned Sessions Judge points out in his charge to the jury and, in his letter of reference, that the confession of Bandhu has been amply corroborated in various material particulars. On this point, I accept the statement of facts, as set out by the learned Sessions Judge, and will not, therefore, repeat the same here. It has, however, been strenuously argued before us that the confession of Bandhu is inadmissible in evidence, having regard to the provisions of Section 24, Evidence Act. It is said that Paigambar was a person in authority within the meaning of Section 24 and that he held out an inducement to Bandhu before he made the confession and that such inducement was sufficient to give Bandhu grounds which would appear to him reasonable for supposing that, by making the confession, he was going to gain an advantage or avoid evil. Therefore, the real point for determination is whether Paigambar was a 'person in authority.' The mere fact that the accused Bandhu thought that Paigambar was a person in authority is clearly not sufficient : Emperor v. Ganesh Chandra Goldar A.I.R. 1923 Cal. 458. It has no doubt been held from time to time that too restricted a meaning should not be given to the expression, but the test has always been : Had the person authority to interfere with the matter? and any concern or interest in it would appear to be held sufficient to give him that authority; see for an illustrative case Regina v. Warringham  2 Den. C.C. 447n. Now, Paigambar was not a panchayat as in Emperor v. Jasha Bewa  11 C.W.N. 904, nor a lambardar as in Mohammad Yar v. Emperor A.I.R. 1922 Lah. 263, nor a pradhan or village matbar. It does not. appear from the evidence on record that Paigambar was a person who exercised any influence or authority in the village. In other words, the evidence does not show that he can be described as being a person whose word was accepted by the villagers. In these circumstances, in my opinion, it would be doing violence to the terms of Section 24, Evidence Act, if I were to hold that Paigambar was a person in authority within the meaning of that section. I am, therefore, of opinion that Section 24, Evidence Act, has no Application and that the confession of Bandhu was admissible in evidence.
6. I am not unmindful of the fact that the confession was retracted. It is a rule of practice not to rely on a retracted confession unless it is corroborated by some evidence to show that the confession is true. As a matter of law it cannot be laid down that a confession made and subsequently retracted by a prisoner cannot be accepted as evidence of his guilt without independent corroborative evidence; and &, prisoner may be convicted, on his own confession, without any corroborative evidence and even when a confession has been retracted, if the jury believe that the confession contains a true account of the prisoner's connexion with the crime. As referred to above, the confession, in this case, has been corroborated by reliable evidence to a material extent and in material particulars. Therefore, in my opinion, so far as Bandhu is concerned, the evidence on record is such that the conclusion may safely be drawn therefrom that Bandhu was guilty of murder.
7. I have not gone into the question of motive. The motive alleged, in this case, is that Paltu objected to the marriage of Bandhu with the daughter of one Guruji. There is some evidence on this point, but, after all, the guilt or otherwise of Bandhu must be determined upon the circumstances related by the witnesses.
8. The case against Kutub stands on a different footing, The main evidence against him is the retracted confession of the co-accused. The learned Sessions Judge is of opinion that the confession of Bandhu, so far as Kutub is concerned is also true. It is said that the confession of Bandhu, as against Kutub, derives corroboration from the fact that blood-stains were found on the vest that he was wearing and that several injuries were found on his right hand, namely, three scratch marks, one cut and one abrasion. On behalf of Kutub, it was sought to be suggested that the injuries referred to above were caused by a fall with a tin canister. No doubt, the Imperial Serologist is of opinion that the blood that was detected in the stains on the vest was human blood, but it is by no means clear, on the evidence on record, that the vest in question had not been stained with blood due to the fact that Kutub had several injuries on his person. At any rate, after examining the entire record, I am unable to say that the case against Kutub is of such a clear character that I have no other alternative but to come to a conclusion adverse to him. In my view Kutub should be given the benefit of the doubt and forthwith discharged.
9. The result is that I find Bandhu guilty under Section 302, I.P.C. I have examined the record carefully to find out if there are any circumstances present, which would justify me in inflicting the lesser penalty indicated in Section 302. Bandhu is aged 18 or 19 : see p. 44 of the paper book. It is clear from the record that Paltu objected and strenuously objected to his marrying the daughter of Guruji. This is spoken to by several witnesses. It is, therefore, possible that he was led to commit the crime in question, because of the opposition of Paltu to his marriage. In these circumstances, I think the ends of justice will be sufficiently met if, instead of passing the extreme penalty of the law on Bandhu, I direct that he do undergo transportation for life. I order accordingly.
10. I agree.