1. The appellants have been convicted of murder. There is no reason to doubt that the husband of the female appellant was actually murdered. She was his fourth wife and many years younger than he. There are indications in the medical evidence to suggest that the motive of the murder was a love affair and there is also some evidence which will support the case that the male accused washer lover. Be that as it may, the case presented before the Court was a curious one and a story of robbery was introduced and both the appellants have been convicted of it. It is a curious story because a large bulk of the property which is supposed to have been stolen in the course of the robbery was the property of the female appellant herself. The jury were unanimous. The learned Judge stated that death would bathe proper punishment. We entirely agree. The murder was brutal, deliberate and cold-blooded and there were no extenuating circumstances. The learned Judge refrained from passing this sentence not because of any circumstances in connexion with the actual crime but because of the nature of the evidence by which it was proved. We have had more than one case oft this sort recently in which Judges have refrained from passing a sentence of death in what they regard as a weak or suspicious case. The Judge has really done a disservice to the accused because he has deprived hint of the right to ask this Court to examine the facts in order to see whether the conviction is appropriate. The case was a. most extraordinary one. The murder was-brought to light by the action of the female appellant. She immediately gave out a story that her husband had been murdered by some dacoits who carried off certain, ornaments. The police came and investigated for two or three days on those lines. The investigation was entirely fruitless and it is perhaps not surprising that it was not long before their suspicion fell upon the female appellant. They took a statement from her and pressed her. As a result the male appellant was arrested. Eventually on 3rd October both the appellants were produced before a Magistrate and made confessions. The only evidence on which these convictions are based consists in these confessions. The first question, therefore, for our determination is whether they were properly admitted in evidence or not. In order to decide that question we must examine the confessions and the circumstances in which they were made.
2. The first thing to notice is that neither of the appellants had any desire to confess until after their arrest and when they were produced before the Magistrate. It is to be observed that the first thing the female appellant did was to concoct a false story of dacoity. When suspicion fell upon her she was closely examined and kept under what is sometimes known as informal arrest. Her house was surrounded by police officers and she was unable to come out at all. Even then she had no desire to confess. Similarly when Siddique Akbar was arrested, so far from having any desire to confess, he stoutly maintained his innocence. Neither of the appellants in their confessions have explained what it was that led to this change of heart. The suspicion of the Magistrate might well have been aroused and it is a pity that he did not himself question them upon the point in order to see what explanations would be forthcoming. Then again, there is nothing spontaneous about these confessions. They are mutually contradictory and both of them cannot be true for the simple reason that each of the accused persons tries to throw the chief blame upon the other. Siddique goes so far as to suggest that he had no desire at all to murder the deceased and only did so when he was reduced to a mental state resembling that of drunken, ness. When there is an entire absence of spontaneity in a confession, it is clearly a reluctant statement and we cannot be satisfied that these confessions were made without inducement of some kind being offered by the police. Then thirdly the confessions show signs of inspiration and reflect the mind of somebody else rather than the mind of the makers. It is quite clear that the ornaments must have been buried by the female appellant in order to give an air of truth to the false story which she put forward of a dacoity which she had herself witnessed. It is absurd to suppose that there was any robbery in the case at all; yet if we read the confessions they appear to be putting forward what was apparently the police theory of the crime at the time when they were made. We cannot believe the last passage in the confession of Siddique about the burial of the ornaments and the inability of the police to find them during the investigation to be anything but inspired. We therefore reach the conclusion that these confessions ought never to have been allowed to go before the jury at all. The learned Judge should have excluded them and then auto, matically the case would have come to an end.
3. We are also not satisfied with the way in which they were put before the jury. Great stress was placed upon passages in the evidence which would corroborate statements in the confessions which were of no importance, which might very well be true and which had nothing to do with the actual story of the murder. The learned Judge did not clearly put before the jury the essential features which had to be examined in order to determine whether the confessions were true or false. After all, both the persons who make them, alleged, them to be false. They cannot both be true because they give different inconsistent accounts of the same occurrence, each accused trying to minimize his own guilt. Other unsatisfactory features in them have been dealt with by me in connexion with their admissibility. Mr. Mukherjee on behalf of the Crown very fairly pointed out to us that the learned Judge admitted evidence of lists of stolen property which were inadmissible in view of the provisions of Section 162, Criminal P.C. The learned Judge laid great stress on this evidence in connexion with the ornaments and it may very well be that the jury were influenced to a considerable extent by it. For these reasons the appeals are allowed, the convictions and sentences are set aside and the appellants will be set at liberty immediately.
4. I agree. In my opinion the learned Sessions Judge has dealt with the case in a very unsatisfactory manner. It is the duty of a Judge to place the case before the jury in such a way as to enable them to come to a reasonable and fair conclusion. The Judge's charge to the jury in this case is so confusing that I am sure that the jury received no assistance from it whatsoever. In fact, I think that the jury must have been confused by the charge of the learned Judge. In no part of the charge can one find a connected account of what the case for the prosecution is or what the defence case is. The learned Judge has mixed up the arguments of the defence with the statement of the case for the prosecution. The whole charge is muddled. Speaking for myself the charge left me quite unable to form a clear idea of what the respective cases of the parties were. Apart from the other illegalities in this case I am of opinion that this unsatisfactory feature of the charge to the jury by itself would be a sufficient ground for setting aside the verdict of the jury. I agree that the two confessions should never have been placed before the jury. It is quite clear that one or the other of the confessions was false, if not both. It is also quite clear that these confessions were reluctantly made. It is further clear that each of the accused persons was trying to throw the blame on the other. No acceptable reasons have been given to show why the accused persons should suddenly make these confessions when very shortly before the making of them they had been telling an entirely different story exculpating themselves. These circumstances afforded sufficient reason for putting the learned Judge on enquiry as to whether the confessions were voluntary or not. I would draw the learned Judge's attention to Section 24, Evidence Act, and point out that before admitting confessions it is the duty of the Judge to satisfy himself that there has not been any induce, ment of the nature described in the Section. The Section says that a confession is irrelevant 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 proceeding from a person in authority. I lay stress on the words 'appear to the Court.' If the circumstances are such as to raise a strong suspicion in the mind of the Judge that the confession has been induced by threats or promises of the nature described in the Section, then the confession is irrelevant. It is not necessary for the defence to establish conclusively that there was such inducement or threat. It is sufficient if the circumstances afford reasonable grounds for believing that there was such an inducement or threat. The learned Judge did not seem to have the provisions of this Section of the Evidence Act in view when he admitted these two confessions. I agree with my learned brother that the confessions are inadmissible. If the confessions are kept out of the case then obviously there is no evidence against these appellants. They must therefore be acquitted.
5. I would also point out to the learned Judge that when he accepted the verdict of the jury he should have passed the appropriate sentence required by law upon the appellants; in this case if the appellants were guilty the only appropriate sentence was that of death. The reasons given by the learned Judge for passing the sentence of transportation for life are, in my opinion, unworthy reasons. For these grounds I agree with the order which has been passed.