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Criminal Appeal No. 20 of 1949, decided on 3rd November 1949, from the order of the Sessions judge, dated 30th July 1949.

Ss. 164, 364- Confession‑Magistrate failing to carry out requirements of law‑Subsequently examined as a 'witness‑Irregularities, held, cured by Magistrate's evidence‑Criminal Procedure Code S. 533.

Where the. Magistrate recording the confession bad failed to follow the requirements of law as set out in sections 164 and 364 Criminal Procedure Code but had subsequently been examined as a witness under the provisions of section 533 Criminal Procedure Code.

Held, that the evidence of the Magistrate cured irregularities and that the confession was not inadmissible in evidence.

(b) Criminal Procedure Code (V of 1898), S. 237‑Accus ed charged with and convicted by Sessions Court under S. 302. Indian Penal Code‑‑Conviction altered on appeal to one under S. 201 Indian Penal Code.

In brief the facts of this case, as alleged by the prosecution, are that a corpse was found buried on 22^nd September 1948 under the floor of a house belonging to one Akhter Muhammad by Chabil Dass, an employee of Akhtar Muhammad.

The foot of Chabil Dass went through the earthen floor and a body was exposed. The police carried out investigations and the body was identified as that of Sess Ram, the husband of the accus ed Mst. Channo. Post mortem examination indicated that death probably occurred from a fracture of the skull due to a blow from a blunt weapon.

It was then found that accused Chandar and Mst. Channo were missing from Fortsandeman ; they were subsequently arrested at Multan.

Sartu, the third accused, had rented the house from Akhtar Muhammad. He was arrested tend assisted the police in their investigations and he volunteered a confession before a Magistrate. Subsequently, on their return to Fortsandeman under arrest, Mst. Channo made a similar confession and two days latter Cbandar did likewise.

It is alleged that Chandar and Mst. Channo were having illicit relations and that the deceased was invited to the Railway quarter on 7th September 1948 which was shared by these two accused. Sartu was also present and they proceeded to drink liquor. When the deceased was completely intoxicated, Chandar struck him violently on the back of the head with the back of an axe and the wound was immediately stopped with cotton wool to prevent bleeding. The mouth of the deceased, before he expired, was stuffed with a child's pyjama and the body was placed in a trunk. The body was later removed and buried in the place in which it was subsequently found.

From the post mortem evidence and evidence regarding recovery there can be no doubt that Sees Ram was murdered and his body concealed deliberately.

Before proceeding to examine the, confession of the accused and their value as evidence, it is first necessary to examine the remaining evidence to see whether it corroborates, to any material extent, the confessions recorded. Without such material corrobo ration it has repeatedly been held that it would be difficult to rely entirely on retracted confessions without other corroborative evidence though there is not absolute rule of, law forbidding the acceptance of such unsupported confessions.

In a case of murder of this nature it is rare that there will be direct evidence and so it is in this case. Such other evidence which has been led is circumstantial. The accused Mst. Channo and Chandar, shortly after Sees Ram was known to be missing, fled to Multan and they have 'been unable to give a convincing account of their actions. Coupled with the fact that the body was discovered by pure chance from the very house of which they had recently been the occupants must cast grave suspicion on them." But suspicion alone is insufficient to find them guilty though if I were to hold that the confessions were tantamountly true and were admissible in evidence against the accused, the combination of circumstantial evidence and the confessions, even though retracted, would be sufficient to establish the case against the accused.

It is therefore necessary to give the most careful consideration to each of three confessions and the manner in which they were recorded in order to determine whether they are admissible.

Section 164 read with section 364 of the Criminal Procedure Court clearly stipulates the manner in which, and the care with which, confessions are to he recorded. In this case, the Magistrate recording the confessions failed to follow the requirements of the law and he was subsequently examined as a witness under the provisions of section 533 of the Criminal Procedure bode. The evidence of this witness cures the irregularities committed and I consider that the confessions are not inadmissible as evidence for the failure of the Magistrate to comply with the provisions of the Law.

This does not however infer, at this stage, that I accept with out question the contents of the confession or that they were recorded voluntarily and without coercion. Moreover, it has been repeatedly held that retracted confessions when they form the main basis for prosecution, must be viewed with extreme care.

I will now, proceed to examine each confession both in relation to the confessor and to the other accused as well as the circum stances under which they were recorded. I take the case of accused Sartu first. This accused is a relative of the accused Chan dar and is his friend. His confession mainly implicates Chandar and Mst. Channo as an abettor. His subsequent action is mainly con fined to the removal of the body though not to its burial.

I first observe that Sartu was the first to be produced by the police before the Magistrate for recording his confessions. In this connection almost all the High Courts have held that it is most desirable that the accused should be removed from Police influence before they are placed before Magistrates for the recording of their confessions and must be sent to jail after the confessions have been recorded (A I R 1934, Oudh p. 153), 1 am in agreement with this view as it cannot be assumed, with any degree of certainty, that an accused person‑in this case a sweeper‑would not be subject to threat or influence by the Police and might thus be compelled, out of fear, to volunteer to confess.

The same argument is applicable to the confessions of the other two accused who were produced from Police custody before the same Magistrate for recording their confessions on 2nd and 4tli October 1948.

In the case of Sartu, however, there is additional and direct evidence about his state of mind as given by P. W. 18 who states that Sartu was being harassed by the Police. For some .reason which I am unable to discover, learned counsel for the defence objected to this evidence though I consider it is evidence in favour of Sartu. Although the witness was confronted, I cannot find any indication that his evidence on this point is a fabrication. If then the fact that Sartu was in Police custody up to the time he confessed is coupled with the evidence of P.W.18 regarding Police harassment, I cannot, beyond reasonable doubt, accept the con tention that the confession of Sartu was made voluntarily and with the full knowledge of the serious consequences which might ensue from the making of such a confession. In the case of Sartu he is the only one of the accused who retracted his confession before the Committing Magistrate. In these circumstances, there is a serious element of doubt about the authenticity of Sartu's con fession.

As for the confession of Chandar, there is not the same element of doubt. He has again confessed in his statement made to the Committing Magistrate and lie did not retract until his statement was recorded in the Sessions Court. It would be difficult to accept most of this statement as being the truth, particularly the portion in which he even denies making a confession before a Magistrate. On this point I have no reason to doubt the evidence of the Magis trate who recorded the confession.

The confession of Mst. Channo is an indication that she was mainly a witness to the murder though she gave cotton wool to plug the wound of the murdered man. Her evidence before the Committing Magistrate is not in the nature of a retraction but is an "appeal on behalf on the other two accused that they committed the crime dire to drunkenness.

In examining the confessions together I have observed that there are several versions of what is alleged to have happened; there are also several other discrepancies, In attempting to arrive at the truth about the guilt or innocence of the accused it is neces sary .to see whether, in the case of the discrepancies, they are of such a serious nature as to cast doubt on the authenticity of the confessions themselves. One point is plain and clear from all the confessions, namely that Chandar was the accused who actually struck Sees ,Ram‑ In other respects discrepancies occur over the part the other two accused played. For instance, Chandar accuses Sartu of putting a rope round the deceased's neck, but Mst. Channo does not support this Sartu accused Mst. Channo of holding the deceased's legs; while Mst, Channo accused Sartu in assisting Chandar after the blow with the axe had been struck and before Sees Ram expired.

I find then that while all confessions are agreed on the main fact that Chandar struck the blow there is considerable counter accusation regarding participation in the other events which imme diately followed or preceded the striking of the blow.

Other discrepancies in the confessions are not such as would lead me to discard them, on these grounds alone, as totally unreli able and inadmissible as evidence.

I consider, therefore, that while the confession of Sartu must be considered doubtful, the confessions of the other two accused can be accepted in regard to the main events which took place because their retractions in the Sessions Court are most unconvinc ing. For instance, had Sees Ram really been alive when they left for Multan, as they allege, it would have been perfectly simple to produce reliable defence evidence to the effect that some one had seen him. Fortsandeman is a small town and it would have been impossible for Sees Ram to remain undetected if he were alive, particularly when both accused allege he was employed in the Zhob Militia. Furthermore Chandar's denial that he even confessed is definitely untrue. The retraction of Chandar cannot, therefore, be accepted as reliable and I accept, as the truth, the confessions of the two accused Chandar and Mst. Channo in regard to Chandar Striking Sees Ram with an axe and subsequently stuffing his mouth with a garment.

It remains, therefore, to decide whether the accused are all guilty of the crime of which they have been convicted. For reasons which I have already given I cannot treat the confession of Sartu as being reliable as evidence against himself. In that event, the only remaining evidence against him is that appearing in the con fessions of the other two accused. In this they differ; and even if Sartu were present at the time, there is no reliable evidence to indicate that he took an actual part in the commission of the murder. He cannot, therefore, be convicted of murder on the sole statement of Mst. Channo that he assisted Chandar when the latter's statement does not offer corroboration of this fact. Accordingly I accept the appeal of Sartu and order his acquittal of the charge of murder under section 302/34, Indian Penal Code.

In the case of Mst. Channo, her confession discloses no more than the fact that she was present. It is only Sartu who states that she held the deceased's legs. But as I have already held that the confession of Sartu is unreliable, any statement he makes in the case of lust. Channo cannot be accepted as evidence against her. It is however in her own statement and that of Chandar that she took cotton wool and handed it over to stem the flow of blood from the wound. This is no criminal action as it cannot be inferred with any safety that she did this simply to prevent the blood flowing or whether it was as a first‑aid measure. In either event it was no part of the act of murder.

For the same reasons as in the case of Sartu, it is evident that lust. Channo, on her own confession, was only present when the murder took place. Accordingly I set aside the conviction of Mst. Channo under section 302/34, Indian Penal Code and order her acquittal under, that charge.

It is however necessary to examine the evidence further regarding these two accused to discover whether they are guilty of any other offence of a lessor degree than murder. While again placing no reliance on the confession of Sartu it is a fact the body of the murdered man was carefully concealed and was only recovered by chance. Except for that pure chance the body might never have been found and the accused might never have been brought to trial.

The confession of Mst. Channo indicates that all three accused removed the body to the house where it was found. This is confirmed in the confession of Chandar. Both confessions further state that Sartu and Chandar together dug the pit in which the body was buried. Even though there are discrepancies in the details regarding disposal of the body they are not, I consider, sufficient for me to disregard the evidence about disposal of the body in toto.

The evidence of the recovery of the body, showing that it had been deliberately concealed, coupled with the evidence of the confessions of the two accused Mst. Channo and Chandar, lead me to believe beyond any question of doubt that both Mst. Channo and Satru aided in the disposal of the body. They are therefore guilty of an offence under section 201, Indian Penal Code. I cannot but take a serious view of these actions and as they were jointly and equally responsible for assisting in the disappearance of the body their degree of guilt must be the same. Under the provisions of section 23.7, Criminal Pro cedure Code‑ I accordingly convict Mst. Channo and Sartu of an offence under section 201, Indian Penal Code for causing the disappearance of evidence in a capital offence and direct that they suffer three years' rigorous imprisonment each and shall be fined Rs. 100 each or undergo further rigorous imprison ment for a‑period of three months in default of payment of fine.

Finally in the case of Chandar, even if the confession of Sartu is discarded as unreliable, there is his own confession corroborated by Mst. Channo that he struck Sees Ram with an axe. He further confirms his statement before the Committing Magistrate' and does not retract until his trial in the Sessions Court. In his latter statement he cannot be believed when totally denying that he ever made a confession.

The only argument in favour of this accused is that he was drunk at the time. Moreover, as there is no reliable evidence on record to indicate that this was a premeditated crime I believe the truth of the story is substantially the same as recorded in the two confessions of Mst. Channo and Chandar, namely that he was drunk, and in his drunken state struck Sees Ram. The motive for the crime .is not proved to my satisfaction but the motives of a man under the influence of drink are often notoriously peculiar. A sudden dislike, a sudden unreasonable temper, an alleged grievance might, any of them, be a reason for this sudden assault, While accepting the fact that Chandar was responsible for striking the blow, when possibly under the influence of drink, that influence could not have been very great iii view of his subsequent action. , had he made the attack without intention .to kill, and in a drunken state. I do not believe it to be within the bounds of possibility that he would then stuf3 the unfortunate man's mouth with a garment in order to complete his grim task unless he were in full possession of his senses and was fully aware what his actions were intended to bring about, namely the death of the deceased.

In brief therefore the case against Chandar, accused is that, on his own confession, corroborated by that of Mst. Channo and further supported by circumstantial evidence, he murdered Sees Ram in a manner which leaves no doubt about his intention to cause the death of the deceased. Had the evidence disclosed that Chandar gave a sudden blow to his victim which resulted in his death, it might have been possible to take a more lenient view of the crime if the intention of the accused to kill the. deceased was in doubt. But the striking of Sees Ram did not suffice his mouth was stuffed with a garment subsequently which is clear indication that, for some reason, Chandar was determined to complete the killing of Sees Ram, In the circumstances it is plain to me that deliberate murder was committed and that there are no extenuating circumstances which would justify a lesser sentence than that imposed. Accord ingly the appeal of Chandar is dismissed and the sentence of transportation for life against him his upheld.

I can find no reliable evidence on record to infer that there was common conspiracy between the three accused which would fall within the purview of section 34, Indian Penal Code. Moreover, my order of acquittal of charges under section 302/34, Indian Penal Code in favour of Mst. Channo and Sartu is such that common intention .is not proved. In upholding the sentence passed against Chandar, I modify it to the extent that he is convicted under section 302, Indian Penal Code only and not under section 302 read with section 34 of the Indian Penal Code. As the conviction under section 302 Indian Penal Code has been upheld I do not propose to examine evidence against Chandar for his complicity in hiding the body, although he might be held equally guilty under this section. The correct practice would appear to be that Court would not normally convict an accused both of the main offence and under this latter section.

I must invite the attention of all Magistrates to the pro visions of section 164 read with section 364 of the Criminal Procedure Code. It is essential in the interests of justice and the accused that Magistrates recording confessions should give the greatest care and attention to the provisions of these two sections. Magistrates must satisfy themselves beyond any possibility of doubt that the confessor wishes to make his statement entirely voluntarily and without compulsion from any quarter. The power to record confession is not manda tory and if there is any doubt in the Magistrate's mind he may either record the fact in the confession or may refuse to record the confession at all. Magistrates should always give the person some time in which to think the matter over, before the confession is recorded.

Again on the question of persons in Police custody who desire to confess, I draw the attention of the Magistrates and the police to this undesirable practice. I do not necessarily wish to infer that those in police custody are placed under any form of compulsion to confess but during the course of trial such interference is almost certain to be made. The true worth of a confession is in its voluntary nature after the person confessing has been warned that his confession may be used in evidence against him. That being so, it is most desirable that persons confessing should be completely free from police influence both before and after the confessions are recorded,

K. M. A. Appeal disallowed.

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