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Tangedupalle Pedda Obigadu Prisoner (2Nd Accused). v. The Public Prosecutor .

Madras High Court

Sep 19, 1921

Judgment

Subsequent
References

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Factual and Procedural Background

Five men of the Yarla caste were tried in the Sessions Court for the murder of Kuppuswami Iyengar, the late Police Sub-Inspector of Chekrayapet. The Sessions Court convicted only the 2nd accused under Section 302 of the Indian Penal Code; the others were acquitted. The Government preferred an appeal against the acquittal of accused numbers 1, 3 and 4, and the sentence of death passed on the 2nd accused was referred for confirmation under Section 374 of the Criminal Procedure Code. The case of the 5th accused was not before the appellate court.

Material evidence in the record included: testimony concerning the deceased's last seen movements on 20 February 1920 (wife P.W. No. 20; constables P.W. Nos. 12 and 13; two last-seen witnesses P.W. Nos. 17 and 18); P.W. No. 24's account of seeing the five accused cross the Papagni river near where a man who may have been the deceased was seen; confessional statements made by each accused on 12 April 1920 to the Deputy Magistrate of Rayachoti (P.W. No. 2); conduct evidence showing the accused pointed out human remains on 13 April at Erramatti Kanama (some of which had been shown on 10 April by K. Pedda Chennagadu); evidence that the accused showed a place in the 2nd accused's field from which a bundle containing fragments of a watch belonging to the deceased was extracted; and testimony (P.W. No. 24 and P.W. No. 15) placing the accused near the last-seen locality and indicating they had been drinking that evening.

Legal Issues Presented

Whether the oral evidence of the Deputy Magistrate (P.W. No. 2) is admissible to prove that each accused confessed to the crime of drowning the Sub-Inspector in the river, despite the confessions not having been recorded in writing under Section 164 of the Criminal Procedure Code.
Whether the confessions spoken to by the Deputy Magistrate were made voluntarily, such that they could be admitted in evidence.
Whether, if the confessions are excluded, the remaining evidence is sufficient to sustain the conviction of the accused.

Arguments of the Parties

Government / Appellant

The Government appealed the acquittals of accused numbers 1, 3 and 4 and sought confirmation of the death sentence passed on the 2nd accused. (The opinion does not elaborate further on distinct legal arguments advanced by the Government in support of the appeal.)

Prosecution

The Public Prosecutor expressly conceded that, if the confessions made to the Deputy Magistrate were excluded from evidence, the remaining material would be insufficient to sustain the convictions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Queen Empress v. Viran (Brandt, J.)	Stated that evidence may be given of a confession provided it is not excluded by statute, even when made to a Magistrate otherwise than in the course of an inquiry or judicial proceedings; such oral confessions may be proved like any other fact.	The opinion relied on this authority to support the proposition that oral statements made to a Magistrate are not automatically inadmissible merely because they were not reduced to writing under Section 164.
Emperor v. Maruti Santu More	Contains a judicial view (Shah, J.) that, despite the use of the word “may” in Section 164(1), the Legislature intended confessions to be reduced to writing; another judge (Hayward, J.) dissented, observing there was no express provision making oral statements to Magistrates inadmissible.	The court rejected Shah, J.'s view (that confessions must be in writing) as based on implication and on obsolete precedents, and preferred the reasoning that oral confessions need not be excluded solely because they were not recorded.
Emperor v. Gulabu	Held that when a Magistrate (Tahsildar) was conducting an inquiry and Section 364 applied, no evidence could be given of the terms of a confession to him except by the record made; where no record was made, Section 533 could not be invoked and oral evidence of the confession was inadmissible.	The opinion used this decision to explain the limited operation of Section 533: it applies only where there is some written record (even if defective) and cannot rescue situations where no written record at all exists; it distinguished cases where a Magistrate was actually conducting an inquiry (triggering Section 364) from cases where he was merely observing police investigation.
Queen-Empress v. Bhairab Chunder Chuckerbutty	Dealt with statements recorded by a Magistrate in the course of an investigation under Section 159 in the form of Section 364 but lacking the voluntary-certificate required by Section 164.	The court observed that this authority was not especially helpful in assessing the value of unrecorded confessions, because it concerned recorded statements lacking a required certificate rather than wholly unrecorded oral confessions.

Court's Reasoning and Analysis

The court proceeded in two main analytical stages: (A) admissibility of the Deputy Magistrate's oral testimony as to confessions; and (B) voluntariness of those confessions.

(A) Admissibility of oral evidence of confessions

The Deputy Magistrate explained he did not record the confessions under Section 164 CrPC because he considered the recording non-obligatory and wished to avoid delay that might cause material objects to disappear. He did not explain why he did not record the confessions later.
The Deputy Magistrate stated he was acting under Section 159 CrPC (an enquiry/investigation direction) and was not holding a trial or preliminary inquiry in the sense of a Magistrate conducting an inquiry under Chapter XVIII. The court examined the statutory distinction between “investigation” (police) and “inquiry” (Magistrates) from the definitions in Section 4.
The court observed that, after a person is taken as an accused, Section 364 makes it obligatory for a Magistrate to record the whole of the examination; by contrast, Section 164 governs statements made during an investigation prior to trial and permits but does not compel Magistrates to record such statements.
Because in this case the Deputy Magistrate did not appear to have conducted an independent inquiry and was essentially observing police investigation, the court held he was not legally bound to record in writing what was said to him.
The court relied on Brandt, J.'s statement in Queen Empress v. Viran that oral confessions made to a Magistrate outside the course of inquiry may be proved like any other fact. It rejected a contrary interpretation (from Shah, J., in another case) that would render oral statements to Magistrates inadmissible unless reduced to writing, finding that such a restrictive view rested on implication and obsolete authority.
Having applied these principles and distinctions, the court concluded that the oral statements deposed to by the Deputy Magistrate were not inadmissible solely because he failed to record them in writing under Section 164.

(B) Voluntariness of the confessions

Even if admissible in principle, Section 164 requires a Magistrate not to record a confession unless, upon questioning the accused, he has reason to believe it was made voluntarily; the statutory certificate that would ordinarily assure voluntariness was absent here because nothing was recorded at the time.
The Deputy Magistrate subsequently deposed that the confessions were voluntary and that the accused stated they were voluntary. The court examined the factual circumstances surrounding the confessions and found them to cast doubt on voluntariness:
All accused were in police custody at the time (some charged with theft; one held to give security); they were brought from the police thana to the Deputy Magistrate's camp (chatram); the police inspector questioned them before the Magistrate did; and one K. Pedda Chennagadu had previously shown the cave with human remains, a fact the accused then repeated.
The court observed a plausible motive for inducement: one accused might have hoped that by implicating others (Baya Reddi and Pedda Roshan) he would obtain approver status or leniency on the theft charge; similar inducements could have affected others.
The court also noted evidentiary difficulty: because the confessions were not recorded, there was uncertainty as to the precise words used, and one year had elapsed between the confessions and the Deputy Magistrate’s deposition, making it impracticable to judge genuineness from the language used.
On balance, the court was not satisfied the confessions were voluntary and therefore excluded the evidence of those confessions.

The court further analyzed the evidentiary consequences: with the confessions excluded, there remained no proof on the record that Kuppuswami Iyengar had been murdered or that the bones found at Erramatti Kanama belonged to him. The Public Prosecutor conceded that, absent the confessions, the remaining evidence would not sustain a conviction. Accordingly the court set aside the conviction and sentence of the 2nd accused.

Holding and Implications

Holding: The conviction and sentence of the 2nd accused were set aside and he was acquitted; Criminal Appeal No. 377 of 1921 was dismissed. Justice Kumaraswami Sastri agreed with this disposition.

Implications:

Direct effect on the parties: The 2nd accused is acquitted and his death sentence and conviction are vacated. The Government's appeal was dismissed.
Evidential implications stated by the court: (a) oral statements made to a Magistrate are not automatically inadmissible merely because they were not recorded under Section 164; (b) notwithstanding admissibility in principle, confessions must be shown to be voluntary — absence of the statutory certificate and surrounding circumstances may render them inadmissible; and (c) if central confessions are excluded and no other evidence connects the accused to the offence, convictions cannot be sustained. The opinion did not purport to establish a novel binding precedent beyond applying those statutory distinctions and prior authorities to the facts of this case.

Order: Conviction set aside.

Show all summary ...

Spencer, J. — In the Sessions Court five men of Yarla Caste were tried for the murder of Kuppuswami Iyengar late Police Sub-Inspector of Chekrayapet, but the 2nd accused alone was found guilty and convicted under Sect. 302, Indian Penal Code. There is before us an appeal preferred by Government against the acquittal of accused 1, 3 and 4, and the sentence of death passed on the 2nd accused has come up for confirmation under Sect. 374 of the Criminal Procedure Code, The case of the 5th accused is not before us.

It was proved by the deceased Police Officer's wife, P.W No. 20, that she last saw her husband at 3 p.m on February 20th, 1920, when he left his house at Kumarakalva for the Police Station at Chekrayapet saying he would return at night. It was proved by P. Ws. Nos. 12 and 13, constables of that station, that he worked in the station that day till 6 p.m, when he left for home. He was last seen alive by two Mahomedans, P. Ws., Nos. 17 and 18, near Gandikovur, a village which lies midway between Chekrayapet and Kumarakalva. About the same time a blacksmith, P. W. No. 24, says he saw the 5 accused crossing, the Papagni river in the direction of Gandikovur and a man in white, who may have been the deceased (except for the fact that P. W. No. 18 says he was wearing a dark coat) descend into the riverbed from the Gandikovur side just as P. W. No. 24 was about to ascend by the separate path to Bajjireddivarapalli.

The evidence to connect the accused with the crime consists, first of confessional statements which they each made in turn on April 12th, 1920, to the Deputy Magistrate of Rayachoti, P. W. No. 2; secondly of evidence of conduct in pointing out on April 13th, certain human remains which one K. Pedda Chennugadu, who is not an accused or a witness in this trial, had shown on April 10th on the top of a hill called Erramatti Kanama, and some charred bones concealed in a cleft in the rock a furlong away which Chennagadu had not previously shown; thirdly of evidence of conduct in showing a place in 2nd accused's field from which the village Munsif extracted a bundle containing the fragments of a watch which is proved conclusively to have belonged to the deceased Kupppuswami Iyengar; and lastly of the statement of P. W. No. 24 that the accused were seen in the neigbourhood of the place where the deceased was last seen alive and were shouting as if drunk, and the statement of P. W. No. 15, toddy shop keeper, at Kumarakalva that he sold them toddy that evening.

The first question for decision is whether the oral evidence of the Deputy Magistrate is admissible to prove that the accused confessed to the crime of having drowned the Sub-Inspector in the river.

In his further examination, this Magistrate has explained that he did not record these confessions under Sect. 164, Criminal Procedure Code, as the section does not make it obligatory that he should do so and he thought that if he wasted time on formalities the material objects might disappear in the meantime. He has not explained why he did not record these confessions either at Erranatti Kanama or after he and the accused returned to his camp. He says he was acting as a Magistrate but was not holding any trial or preliminary inquiry but was enquiring into the crime under Sect. 159 under the directions of the District Magistrate. That is a section which authorises Magistrates, who are empowered to take cognizance of offences upon a police report, to direct an investigation or to themselves proceed to hold a preliminary inquiry upon receiving a report of the commission of a cognizable offence or to depute a subordinate Magistrate to do so From the definitions in Sect. 4 (l) and (k) it appears that “investigation” is a word confined to proceedings of the Police or persons other than Magistrates, and that “inquiry” is the word appropriate to the proceedings of Magistrates prior to trial.

The expression ‘preliminary inquiry’ in Sect. 159 appears to be used in a different sense from its use in Sect. 288, where it refers to inquiries under Chapter XVIII prior to commitment to the Sessions, which are held after the Police investigation is complete, after a charge sheet is drawn up, and after the accused is forwarded under custody under Sect. 170 to the Magistrate empowered to take cognizance of the case.

After a person is taken as an accused it is made obligatory upon the Magistrate who examines him to record the whole of the questions put to him and the answer given by him under Sect. 364, Criminal Procedure Code. But statements whether in the nature of information given by witnesses about a crime or admissions by persons who have taken part in a crime, if made during the course of an investigation before the commencement of a trial or inquiry, are governed by Sect. 164, and this section permits Magistrates to record the same without compelling them to do so.

In this case it does not appear that the Deputy Magistrate made any inquiry independently of the police or recorded any Statements from the available witnesses. The police were conducting an investigation and collecting evidence of the crime. The Magistrate was watching the progress of their work of detection. Under such circumstances he was not bound by law to record in writing what was said to him.

The law is stated by Brandt, J., in Queen Empress v. Viran(1) at 240 thus: “Evidence may be given of a confession provided that it be not excluded by an express provision of law, whether made to a private person, or to a Magistrate otherwise than in the course of an inquiry or other judicial proceedings; it may then be proved, and must be proved, if at all, like any other fact.”

In Emperor v. Maruti Santu More…Accused., J., gave his reasons for thinking that in spite of the use of the expression “may record” in Sect. 164 (1) it was the intention of the legislature to make all confessions matters required by law to be reduced to the form of a document. He relied on the implied purpose of the section and on the terms and the existence of Sect. 533; but Hayward, J., who sat with him, dissented from this view and observed that “if it was intended to make oral statements which would be relevant when made to private persons, irrelevant when made to Magistrates, then there would surely have been express provision that such statements should not be proved except by writings duly recorded by Magistrates” and “it would not have been left to mere implication from the provisions relating to the manner of proof of such writings when recorded by Magistrates under Sect. 533 of the Criminal Procedure Code.” With due respect I am unable to adopt the view taken by Shah, J., which is founded partly on theories as to implications to be drawn from certain sections, whereas the law is always precise in stating what “may” and what “shall” be done, and partly on 4 decisions of the Bombay High Court which became obsolete by the enactment of Sect. 533 in the Code of 1882. In Emperor v. Gulabu*(2) it was held that no evidence could be given of the terms of a confession of an accused person made to a Magistrate, except the record, if any, made under Sect. 354. That was a case in which it was found that the Tahsildar was actually conducting an inquiry as a Magistrate when the statement was made to him and therefore Sect. 364 strictly applied. When no record at all had been made of Gulabu's statement in spite of the provision in Sect. 364 that the whole of the examination of an accused including the questions put to him and every answer given by him shall be recorded in full, Sect. 533 was inapplicable and no oral evidence could be admitted to prove what Gulabu said. It is quite plain that Sect. 533 can only be invoked when there is some written record but that record is defective through some error in not strictly following the provisions of Sect. 164 or Sect. 364. The object apparent from the words of the section is to take such records out of the excluding provisions of Sect. 91, Indian Evidence Act. Queen-Empress v. Bhairab Chunder Chuckerbutty(3), which has been cited for the defence is not really helpful in considering the value of unrecorded confessions. It dealt with a case where statements were recorded by a Magistrate in the course of an investigation under Sect. 159 in the form provided by Sect. 364 but without the certificate required by Sect. 164 to the effect that they were made voluntarily.

I hold then that the oral statements of the Deputy Magistrate as to what the accused admitted in his presence are not inadmissible on account of his failure to record them in writing.

The next question is whether the confessions spoken to by the Deputy Magistrate were made voluntarily. Sect. 164 provides that a Magistrate should not record such a confession unless upon questioning the accused he has reason to believe that it was made voluntarily.

The Deputy Magistrate now deposes that these confessions were made voluntarily and that the accused said they were voluntary.

But the conditions under which they were given make it very doubtful whether he was right in his supposition. The accused did not come forward spontaneously. They were in police custody at the time, accused 1, 2, 3 and 5 being charged with theft of sheep and the 4th accused being put up for giving security for good behaviour. They were brought over from the police thana to the chatram where P. W. 2 was halting. The Police Inspector first put questions and then the Deputy Magistrate put questions to each accused in turn. K. Pedda Chennagadu had 3 days previously shown the Inspector the cave where the human remains were hidden. The accused repeated the process. 1st accused said that they drowned the Sub-Inspector at the instigation of Baya Reddi and Pedda Roshan who were looking on. It is possible that he may have had an idea that if he gave information against Baya Reddi and Pedda Roshan he would be taken as an approver like K. Pedda Chennagadu and would be let off on the charge of theft of sheep. So also with the other accused. It is difficult to conceive that they all confessed to the murder without any threat or promise or other inducement.

In this case the guarantee that would be afforded by the Magistrate's certificate under Sect. 164 (3) written at the time the confessions were made is wanting owing to the course adopted of not recording what they said. There is moreover some uncertainty as to what each accused said, as it is too much to suppose that the Deputy Magistrate carried in his head the actual words used by each accused during the year that elapsed between the date of the confessions and the date of his deposing in the Sessions Court. Without knowing the words in which the confessions of guilt were made it is impossible to judge of their genuineness from the language.

I hold therefore that the evidence as to the confessions must be excluded as I am not satisfied that they were voluntary.

Without them there is no proof that Kuppuswami Iyengar was murdered or that the bones shown at Erramettri Kanama were his. The Public Prosecutor concedes that, if the confessions were left out, the rest of the evidence is insufficient to sustain the conviction of the accused.

The 2nd accused is therefore acquitted, his conviction and sentence being set aside.

Criminal Appeal No. 377 of 1921 is dismissed.

Kumaraswami Sastri, J.—I agree.

C.KConviction set aside.