Mirza, J.:— (After dealing with the case of accused 1 to 8 and 22 and coming to the conclusion that their conviction was correct, the judgment proceeded.) The convictions of accused 9 and 10 are mainly based upon their retracted confessions. It has been contended by Mr. Thakor before us that the confession of accused 9 and 10 were not recorded by the Magistrate in accordance with the requirements of Sections 164 and 364 of the Cr PC, and of the High Court Criminal Circulars in that behalf, and are, therefore, inadmissible in evidence. In both these confessions the Magistrate has recorded the necessary certificate at the end to the effect that they were voluntarily made; but he has not recorded the questions he put and the answers given, the perusal of which would satisfy the Court that the confessions were voluntarily made, and there was no inducement held out by the police by which the confessions could be said to be prompted. In order to remedy the defect the Magistrate was examined as a Court witness before the Sessions Court. It was contended by Mr. Thakor that the defect in recording the questions and answers amounts to an infraction of the law and is not a mere omission which can be cured under Section 533 of the Cr PC. Section 164(3) of the Cr PC, inter alia provides that no Magistrate shall record a confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot of such record to the effect that the confession was voluntarily made. Section 364 of the Cr PC, inter alia provides that whenever an accused person is examined by a Magistrate, the whole of such examination including every question put to him and every answer given by him shall be recorded in full and such record shall be shown or read or interpreted to him and he shall be at liberty to explain or add to his answers. There are certain exceptions to this general rule, but they would not apply here. The High Court has by its Criminal Circulars issued certain instructions for the guidance of the Magistrates recording confessions and statements under Section 164 of the Cr PC. These are set out in para. 3 of Chap. 1 at p. 2, of the printed Criminal Circular Orders, 1925. Para. 3(i) requires that the Magistrate should invariably question the accused person as to the length of time during which he has been in the custody of the police, and that it is not sufficient to note the date and hour recited in the police papers at which the accused person is said to have been formally arrested.
2. Section 533 of the Cr PC, provides that whenever the Court finds that any of the provisions of either S. 164 or S. 364 have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded and notwithstanding anything contained in Section 91 of the Evidence Act such statement shall be admitted if the error has not injured the accused as to his defence on the merits. In Queen-Empress v. Visram Babaji(1) Strachey, J. at p. 501 reviewed the earlier authorities and came to the conclusion that neither the language nor the object of S. 533 would justify a distinction between an “omission” which would be curable by S. 533 and an “infraction” or “direct violation” which would not be curable by that section. The learned Judge lays down the test that as long as the irregularity does not injure the accused as to his defence on the merits it can be cured under the provisions of S. 533. This ruling was followed by a Divisional Bench of our Court in Queen-Empress v. Raghu(2). The learned Judges there observe that the true principles which should govern such cases are those which are laid down in Queen-Empress v. Viran(3), viz., that S. 533 merely gives legal sanction to the maximum omnia proesumunturrite esse acta. The test, laid down is that whenever no attempt has been made to comply with the provisions of the law, S. 533 would not render a confession admissible. S. 533 is intended, according to this ruling, to apply to all cases in which the directions of the law have not been fully complied with and would apply to omissions to complete with the law as well as to infractions of the law. We are bound by this ruling of the same effect are the rulings of the Allahabad High Court in Emperor v. Deo Dat(4), and of the Patna High Court in Ramai Ho v. King-Emperor(5). The evidence of the Magistrate has satisfactorily proved the confessions made by both accused 9 and 10 were voluntarily made and that he had as a matter of fact satisfied himself by putting questions and getting answers that the confessions were being voluntarily made by both accused. Mr. Thakor has contended in the alternative that the confessions would be inadmissible in evidence, but under the provisions of S. 533 the Magistrate' oral testimony as to the contents of the confessions would be admissible notwithstanding the provisions of Section 91 of the Evidence Act. He has urged that the language of S. 533 making the statement admissible, notwithstanding Section 91 of the Evidence Act, has reference to this that evidence which is being made ??? is not the confession itself, by the evidence given by the Magistrate of its contents. The rulings to which I have referred above would not, in my opinion, support such a contention. They seen clearly to lay down that the confession itself is admissible and the defect in it is curable under S. 533. The Magistrate's evidence would however meet the point raised by Mr. Thakor. The Magistrate has stated in his evidence that the contents of the two confessions were correctly recorded by him, and has thus made the contents of the confessions part of his evidence.
3. The next question we have to consider is what weight should be attached to these confessions against the accused making them Mr. Thakor has urged that there is internal evidence in the confessions that at any rate some of their contents are untrue. Both confessions refer to the pelting of stones at the scene of offence, but there is no evidence in the Panchnama of the scene of offence that any stones were found lying there. I am not inclined to attach much importance to the absence of positive evidence to corroborate this part of the confessions. Mr. Thakor has further relied on the point that in the confession of accused 10 only accused 3, 18 and 20 of those convicted are implicated. A confession, in my opinion, in order to be relied upon need not make a clean breast of all the details in connexion with the crime, but if the Court is satisfied that it has been voluntarily made, it may take into consideration such parts of it is it may by itself or in the light of the other evidence in the case consider to be true. Mr. Thakor has further relied upon the point that neither of the two confessing accused implicates himself in the commission of the murder of Mandappa and Yemanurappa, but implicates himself to the extent only of having taken part in the beating and the robbery which took place. If the accused took part in beating Mandeppa, Yemanurappa and Basawa they would be liable for the natural and probable consequences of such act. Whether the part they took in the commission of the crime would or would not amount to the offence of murder or grievous hurt would be a matter of law for the Court to determine in the light of the evidence and the surrounding circumstances as well as their confessions.
4. In Queen-Empress v. Gharya(6) our Court has held that a retracted confession, if proved to be voluntarily made, can be acted upon along with the other evidence in the case, and that there is no rule of law that the retracted confession must be supported by independent reliable evidence corroborating it in material particulars. The use to be made of such a confession, it is observed, is a matter of prudence rather than of law. In Queen-Empress v. Gangia(7), our Court, following the decision in Queen-Empress v. Gharya, again held that there is no rule of law that a retracted confession cannot be treated as evidence unless it is corroborated in material particulars by independent reliable evidence.
5. In Queen-Empress v. Basvanta(8), our Court has held that the law in India is not identical with the law in England on the relevancy and admissibility of confessions and that a mere subsequent retraction of a confession is not enough in all cases to make it appear to have been unlawfully induced. The earliest ruling of our Court on this point is to be found in Queen-Empress v. Balya Dagdu(9), to which a reference is made in Queen-Empress v. Basvanta. According to that ruling a confession to be admitted at all in evidence must be proved to have been made voluntarily; and when it is admitted in evidence it has to be dealt with like any other piece of evidence and acted on only if it is believed to be true. A confession, it is observed, though made voluntarily by an accused person before a Magistrate and subsequently retracted is sufficient by itself to justify a Sessions Court to act upon it. To the same effect is the ruling of the Madras High Court in Queen-Empress v. Raman(10).
6. Reliance is placed on behalf of the accused Nos. 9 and 10 on the case of Emperor v. Azimuddin(11), where a Divisional Bench of the Allahabad High Court held that a statement by an accused person not recorded in strict compliance with the rules for recording confessions, and without asking any incidental questions to test the voluntariness and genuineness of the confession, and which was wanting in considerable details and only contained matters which could have been easily got from the investigation made by the police, and which was uncorroborated and withdrawn at the earliest opportunity, could not be regarded as a voluntary and genuine confession upon which to base a conviction. That case, in my opinion, governs its own facts which were materially different from those with which we have here to deal.
7. The confessions of accused 9 and 10 are corroborated in one material particular by the evidence of Hanma Fakirappa, namely, that they were among the persons who had assembled at the temple prior to the commission of the dacoity. The evidence of Hanma has been impeached on the ground that he is an omnibus witness who speaks to having seen all the accused except accused 6 at the temple on the evening of the offence. There is no sufficient reason shown why the evidence of Hanma should be doubted that he saw accused 9 and 10 among those who had assembled at the temple on this occasion. In my opinion the convictions of both accused 9 and 10 can be sustained on the strength of their own confessions and the corroboration those confessions have received is a material particular by the evidence of Hanma.
8. With regard to the conviction of the remaining accused they are based mainly upon the retracted confessions of accused 9 who implicates all of them and accused 10 who implicates accused 18 and 20 only. Although the weight of these confessions may be regarded as great against the parties making them, they must be accepted with great caution against the co-accused whom they implicate unless there is corroboration forthcoming from an independent source which would make it safe to act upon the confessions. In Maksud Ali v. Emperor(12), the High Court of Patna held that though, as a matter of law, a conviction may be based upon a retracted confession if the Court in come to the unhesitating conclusion that the confession is voluntary, yet, as a matter of prudence, no conviction should be based upon such confession unless it is corroborated in material particulars and that whatever value may be attached to the retracted confession of an accused person against himself, the value to be attached to such a confession as against a co-accused is exceedingly weak. In Emperor v. Sabitkhan Bahadurkhan…Accused.(13), on a reference on difference of opinion between Heaton, J., and Shah, J., Scott, C.J, concurring with Heaton, J., and differing from Shah, J., held that the confessions of the co-accused were evidence against the accused, inasmuch as there was testimony independent of the confessions which affected the accused by connecting or tending to connect him with the crime. Scott, C.J, remarked (pp. 469, 470):
“If the confession [of a co-accused] is corroborated by other evidence, … it matters not whether, in proving the case at the trial, the confession precedes the other evidence, or the other evidence precedes the confession … As regards the confessions of co-accused the Indian Law has no counterpart in England, but it seems to me that for the purpose of admissibility such confessions stand on the same footing as accomplice evidence and that their weight must depend on the circumstances of each case.”
9. On this point Scott, C.J, differed from a dictum of Macleod, J., in Emperor v. Gangappa Kardeppa(14), where Macleod, J., had expressed the opinion that a confession of a co-accused would stand on a different footing to the testimony of an accomplice, and that the indian evidence act treats it as having a higher probative value than similar evidence would have according to the English law. According to the later ruling there is no difference between the law in England and the law in India on this point except with regard to the corroboration of accomplice evidence. Both decisions agree that the confession of one co-accused could not be said to be corroborated by the confession of other co-accused. In Emperor v. Gangappa Kardeppa the Court observed that there was nothing in Section 30 of the Evidence Act of 1672 which prevented a Court from convicting after taking the confession of the co-accused into consideration; but the High Courts in India had laid down a rule of practice which had all the reverence of law, that a conviction founded solely on the confession of the co-accused could not be sustained. (The judgment then considered the question of corroboration of the confessions of accused 9 and 10 and continued). Considering the evidence as a whole against the accused in this group there is room, in my opinion, for a reasonable doubt in their favour. All the assessors are agreed that these accused are not guilty. I would, therefore, give them the benefit of the doubt, reverse their convictions and sentences, and acquit and discharge them.
10. With regard to the sentence on accused 1 to 10 and 22, the learned Judge has sentenced accused 2, 3, 4, 5, 6, 7 and 22 to transportation for life. The sentence would be justified on the ground that two persons were murdered in the course of the gang's operations. Under S. 396, I.P.C, a larger discretion is vested in us with regard to the sentence than would be the case if the offence charged were under S. 302. When a gang of forty or fifty parsons took part in the dacoity it is difficult to ascertain which one out of them infected the fatal injuries on the deceased. A stick stained with human blood and a dhoti similarly stained were recovered respectively from the houses of accused 7 and 22. It is certain, therefore, that they were among those who took an active part in the beating of Mandeppa and Yemanurappa which caused their deaths. The sentence of transportation for life in the case of these two accused should, in my opinion, be confirmed. With regard to accused 2, 3, 4, 5, and 6 it is satisfactorily established that they were among those who beat the deceased Mandeppa, but as no blood stains have been discovered on their clothes or other possessions I am inclined to treat their case more leniently than, the case of accused 7 and 22. I would reduce their sentences from transportation for life to rigorous imprisonment for ten years each. The sentences on accused 1 and 8, in my opinion, are not excessive and should be confirmed. The sentences on accused 9 and 10 should in my opinion be reduced in each case to three years' rigorous imprisonment.
11. Patkar, J.:— In this case accused 1 to 19, 21 and 22 were tried on a charge of having conjointly committed dacoity early in the morning on 12th December, 1927, and murdered Yamnurappa and Mandappa in the course of the dacoity and thus committed offences punishable under S. 396, I.P.C, or in the alternative under Ss. 402 and 399, I.P.C, and accused 20 was tried on a charge under S. 396 read with S. 114, or in the alternative under Ss. 399 and 402, I.P.C (His Lordship after dealing at length with the case of accused 1 to 8 and 22, and holding that the convictions of accused 1 to 8 and 22 are correct, proceeded). As regards accused 9 and 10, their convictions depend on their confessions, Exs. 97 and 100, made on 24th December, 1927. It appears that the Magistrate did not follow the High Court Circulars and did not comply with the requirements of Sections 164 and 364 of the Cr PC, when recording the confessions of accused 9 and 10. The Magistrate was examined as a witness, Ex. 126. He proves that-accused 9 and 10 Were brought to him on 21st and he examined the bodies of both the accused and found no marks of violence and transferred them to the magisterial custody. He is corroborated by the remarks on Ex. 127, the yadi sent by the Sub-Inspector of Police, that the accused had no injuries and that the warrant was sent to the jailor. On 22nd the Magistrate received the yadi from the Sub-Inspector of Police, Ex. 71, intimating that accused 9 and 10 wished to mike confessions. It is urged that the serial numbers on Exs. 71 and 127 do not coincide with the dates, and that the guard on duty on the ministerial lock-up is appointed by the Sub-Inspector. It is, therefore, suggested that the accused were either tutored or forced to mike a confession. It appears, however, from the evidence of the Magistrate that when, he examined the bodies of the accused he found no marks of violence and they stated that they were willing to confess.
12. On 23rd December, he sent for the accused and gave them time for reflection and their confessions were recorded on 21th. When they were again brought for confession, they were asked whether any inducement was given by any police-officer, and they said that no inducement was given by any police officer and that they were going to make the confessions of their own free will. No marks of violence on the body were found on the day when the confessions were recorded. The learned Magistrate is an experienced Magistrate and swears that be satisfied himself that the accused were going to make voluntary confessions before he recorded them. The Magistrate asked his clerk to fill up column 5 of the confessions but the karkun omitted to record the details. The Magistrate was under a wrong impression that every question and answer need not have been recorded in full. The Magistrate was examined before the Sessions Court. The Magistrate has recorded the necessary certificate at the end of the confessions, and though questions and answers necessary to satisfy the Magistrate that the confession was voluntary and was not in educed either by torture, threat or inducement, were not reduced into writing, the Magistrate when examined before the Court has proved that he asked those questions and was satisfied that the confessions ware voluntary and both the accused duly made the statement recorded in the confessions. It is urged that the failure of the Magistrate to reduce into writing the questions and answers on this point amounts to an infraction of the law and not to an omission and can not be cured under Section 533 of the Cr PC. It is further argued that the statements themselves are inadmissible in evidence and the Magistrate has not proved the statements made by the accused. It appears clear from the evidence of the Magistrate that the accused duly made the statements recorded. He swore when he saw the forms that whatever was written on them was correctly written. He has, therefore, proved that the accused made the statement recorded in the concessions, Exs. 97 and 100. Section 533 of the Cr PC, according to the decisions of this Court, cures not only omissions but also infractions of the law.
13. In Queen v. Visram Babaji the statements were in the forms prescribed by S. 364 except that the question was recorded in English and not in Marathi which was the language in which the accused was examined, and it was held that such statement or confession though mot taken in the proper form was admissible in evidence against the accused. In Queen-Empress v. Raghu it was held that Section 533 of the Cr PC, applies to omissions to comply with the law as well as to infractions of the law. To the same effect is the decision in the case of Emperor v. Fernand(15). It is urged that the record of the confession is not admissible owing to the failure to comply with the law and that parol evidence may be given of the terms of the confession, grad those terms, if and when proved, may be admitted and used as evidence in the case but that the record of the confession was not admissible. Parole evidence of the terms of the confession would be admissible under S. 533 when the Magistrate is examined and proves the statement orally, but it is unnecessary to prove orally all the statements made by the accused when the record though formally incomplete is a true and full account of the confession. According to the evidence of the Magistrate, the statements made in the confessions were duly made by the accused and his evidence supplies the defect of recording questions and answers which would lead to an inference that the Magistrate was satisfied that the confessions were voluntary. Further it appears that the term “such statement” in S. 533 refers to the statement recorded regarding which the Magistrate gives evidence under S. 533 that such person duly made it. The evidence of the written confession can be given by the Magistrate under S. 533 if the record is proved to be an accurate and true statement made by the accused. It would follow that the statements recorded can be acted upon as statements duly made by accused to the Magistrate. In Ramai Ho v. King-Emperor it was held by the Patna High Court that where the record of a confession did not show that the accused had been warned by the Magistrate or that the accused had been asked whether he made the statement voluntarily and the Magistrate was examined and proved that he had cautioned the accused and explained to the accused that he was not bound to mike a statement and if he did so it might be used against him, the confession as recorded was admissible. In Emperor v. Deo Dat it was held that the examination of the Magistrate under S. 533 that he was satisfied that the accused had not been tutored cured the defect in the recorded confession although the questions and answers were not taken down in writing. It is not shown that the error of the Magistrate has injured the accused as to his defence on the merits. I think, therefore, that the confessions. Exs. 97 and 100, are admissible in evidence against accused 9 and 10. It is further urged that the confessions being retracted cannot be acted upon unless corroborated by other evidence in the cage. It wat held is Queen-Empress v. Gharya that a retracted confession, if proved to be voluntarily made can be acted upon along with the other evidence in the case, and that there is no rule of law that a retracted confession must be supported by independent reliable evidence corroborating it in material particulars. The use to be made of such a confession is a matter of prudence other than of law. In Queen-Empress v. Gangia it was hold that there is no rule of law that a retracted confession cannot be treated as evidence unless it is corroborated in material particulars by independent reliable evidence. In Queen-Empress v. Basvanta it was held dissenting from the view in Queen-Empress v. Balya Dagdu that a mere subsequent retraction of a confession is not enough in all cases to make it appear to have been unlawfully induced and that a retracted confession could be made the basis of a conviction. When a confession is retracted, it is the duty of the Court especially in a case of murder to inquire into all the material points and surrounding circumstances and satisfy itself that the confessions cannot but be true: sea King-Emperor v. Durgaya(16). The only question in this case is whether the confessions, Exs. 97 and 100, are true and can be acted upon…. The two assessors and the learned Sessions Judge have believed the confessions, and I think the convictions of accused 9 and 10 are correct.
14. With regard to accused 12 to 14, 16 and 18, the only evidence against them is the confession of accused 9 who implicates accused 12 to 14, 16 and 18 and the confession of accused 10 who implicates accused 18. There is further the evidence of Hanma. The confession of a co-accused cannot be made the basis of conviction unless it is corroborated in material particulars by the other independent evidence proving the identity of the accused, and the confessions of one co-accused cannot be said to be corroborated by the confession of another co-accused: see Emperor v. Gargappa Kardeppa and Emperor v. Sabitkhan Bahadurkhan…Accused.. These accused have been convicted under S. 396, and the evidence of Hanma, even if believed, would show that they were present at the temple. Their presence at the scene of offence is not proved by any other reliable evidence. Their conviction, therefore, under S. 396 cannot be sustained. The evidence of Hanma cannot be relied upon implicitly. I do not think that the evidence of Hanma can be considered sufficient corroboration of the confessions of the co-accused 9 and 10 for the purpose of convicting accused 12 to 14, 15, 16 and 18. (His Lordship, therefore, set aside their convictions and ordered them to be acquitted and discharged.)
S.N/R.K
15. Order accordingly.