1. Four persons, Neharoo, Gohri, Chaitu and Sukhroo, stood their trial in the Court of the Sessions Judge, Raipur, on the charge of the murder of one Dau Satnami of mauza Derba. The deceased Dau was brutally murdered on the night of 2nd May last, and his body was found the following morning on the edge of a tank near the village with his throat cut from side to side, his eyes gouged out, and other injuries on the head. All the ornaments which he had been wearing were missing: these included ornaments both of gold and silver. On the previous day the deceased had been with the accused, Chaitu, to a village some distance away, looking for a potential wife. He had already had two wives, one of whom had been turned out as it was found that she offended against the principle of exogamy, and the other had run away from him. He was a man of about 30 years of age, and the post mortem report describes him as stout, which we take to mean “well-built”. On the evening of Saturday the 2nd of May, after his return he was sitting outside his house where he lived with his grandparents, when Chaitu called him to witness a dance which was going on in another house. He left with Chaitu and was not seen again. There is no evidence that he was seen at the dance or that he was seen by anybody at all after he left his home. The prosecution case depended entirely on the statements made by one of the accused, namely the present appellant Neharoo. This accused on 9th May made a voluntary statement before a Magistrate, Mr. Furankar. In this statement he incriminated all the other accused but exculpated himself. In the course of the investigation the accused Neharoo is said to have stated that a pair of karas belonging to the deceased had been concealed by him in the biara of Sital (P.W 1), and he recovered them from that place. These karas are Ex. R. As there was no evidence whatever against the accused Gohri and Sukhroo, they were acquitted. Neither was there any evidence against Chaitu beyond the fact that he had been with the deceased on the Saturday and had called him from his house that evening, and he too was acquitted. The appellant Neharoo has been convicted and sentenced to death.
2. It is manifest that the acquittals of the three of the accused are correct. Even if the confessional statement of Neharoo before the Magistrate had been self, inculpatory instead of self-exculpatory, as it was, it would have been insufficient by itself to form the basis of a conviction of his fellow-accused. His confessional statement itself, however (and it was retracted in the course of the trial), is open to such grave criticism that reliance on it, even to support the conviction of Neharoo, is impossible.
3. The learned Sessions Judge, although he has admitted that the record of the confession was not made with due care and formality, and that the certificate which is required by Section 164 of the Cr PC, was not given, and that the accused's signature was not taken, has nevertheless held the confession admissible as the Magistrate who recorded it was called as P.W 11 and has deposed that the confession was in his opinion voluntarily made.
4. The practice of allowing defects in the formalities in recording confessions to be cured by the application of Section 533 of the Cr PC, has been permitted of late years with considerable frequency in the Courts in India, and any omissions on the part of Magistrates recording confessions to comply with the formalities laid down in Ss. 164 and 364 of the Code have been allowed to be condoned by the evidence of the Magistrates themselves as witnesses for the prosecution. The practice, and the theory underlying it, is crystallized in a Full Bench judgment of the Allahabad High Court in AIR 1934 All 81. AIR 1931 All 81 , 1931 Cr C 145 , 147 IC 390 , 35 Cr LJ 385 , 56 All 302 (FB) This practice has now received a check by a very recent ruling of their Lordships of the Privy Council in AIR 1936 PC 253, AIR 1936 PC 253 , 1936 Cr C 752 , 163 IC 881 , 37 Cr LJ 897 , 17 Lah 629 , 63 IA 872 (PC) where the practice is emphatically condemned and, by implication, the decision of the Allahabad High Court overruled, as also numerous decisions to the same effect in the Lahore High Court; the case itself, AIR 1936 PC 253, AIR 1936 PC 253 , 1936 Cr C 752 , 163 IC 881 , 37 Cr LJ 897 , 17 Lah 629 , 63 IA 872 (PC) came from Lahore. It was laid down that in the matter of construction Ss. 164 and 364 must be looked at and construed together and that it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. It was also observed that the practice of allowing Magistrates as witnesses to depose to confessions was improper and that, where matters could be put on record and would be admissible when so put, there were the strongest reasons of policy for supposing that the Legislature designed that such matters should be available in that form and in no other. We must hold therefore that the evidence of the Magistrate, Mr. Furankar is, in the circumstances, inadmissible and that the recorded confession is accordingly ineffective.
5. This however is not the only criticism that we have to make on the confession. It is less of a confession than an inquisition, and is really little less than an examination of the person who was brought before the Court for the purpose of making a confession on a note prepared by the Sub-Inspector which was furnished to the Magistrate and which the Magistrate subsequently returned. The opening question was: “Did Chaitu, at eight o'clock at night on Saturday, dated 2nd May 1936, take you outside the basti of Darba near the bridge of the nahar, (canal)?” This is a direct question which could only have been asked as the result of information in the possession of the Magistrate. When this question was answered, Neharoo was then asked who were present on that night, and after he had named the other accused the question was then asked: “Did you kill Chaitu?”—a piece of carelessness which should never have occurred in naming Chaitu for Dau. On this question the accused made a statement which, if it had been made without any prompting, might have amounted to a confessional statement. The last sentence of the statement is to the effect that “Chaitu out Dan's throat with a razor”; and a most improper question was then asked: “Whence did Chaitu bring the razor?” The accused answered that he had taken it from his own house early on that morning. The accused was also asked whether he got any ornaments as his share of the proceeds, and stated that he had received a pair of silver karas. The learned Sessions Judge defends this extraordinary procedure by stating that recording of confessions in the form of question and answer is allowed by Criminal Circular 1-6 of the Judicial Commissioner, although he admits that the accused is not to be subjected to a close and inquisitorial questioning and no attempt is to be made to elicit unwilling or unguarded admissions. The last phrase is of course a quotation from the circular itself; but the point of permission to examine by means of question and answer has been entirely misinterpreted. What the circular says is:
…. but he may properly be questioned so far as may be necessary to enable the Magistrate (a) to elicit from him whatever facts he is willing to state; (b) to understand exactly what his meaning is and how far he intends his confession or admission to go;
and illustrations are given. Even if the statement of Neharoo were admissible, we could not, from the manner in which it was made, place any reliance on it or believe, from the manner in which the questions were put, that the accused was under the impression that he was not being examined and that he was making a purely voluntary statement. Although it appears from Mr. Purankar's evidence that the police had been excluded from the Court room, nevertheless Neharoo was hand-cuffed and the Magistrate's orderly was holding the end of the chain. This would hardly conduce the accused to believe that he was making a voluntary confession.
6. As the confessional statement of the accused must be entirely discarded, all that remains is the recovery of the bracelets, Ex. B, made by him. There is evidence in the deposition of a local malguzar, Lachmandas (P.W 12), who was present when the statement which led to the discovery was made, that the statement was elicited by inducements on the part of the Circle Inspector of Police to the effect that Neharoo would be released if he told the truth; and it is contended on behalf of the appellant that this circumstance would render the statement made by him inadmissible under Section 24 of the Evidence Act. This is not so. The learned Sessions Judge has correctly stated the law with respect to the effect of Section 27 of the Evidence Act, and we ourselves have recently held in Cri. App. No. 31 of 1936 Reported in AIR 1936 Nag 200 , 1936 Cr C 814 , 164 IC 964 , 37 Cr LJ 1047 , ILR 1936 Nag 78 that Section 27 of the Evidence Act, is in the nature of a proviso relating to the previous sections which lay down the general rules as to the inadmissibility of confessions made in certain circumstances. Whether a confession to which Section 27 of the Evidence Act, applies was induced by promises or not is immaterial. The general ground for not admitting confessions made either to a police officer, or made under any inducement, or made by persons while in custody, is clearly the danger of admitting false confessions; but the necessity for this precaution disappears when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given.
7. The statement therefore that the accused had deposited two karas belonging to the deceased in a certain place and offered to show the police the spot is admissible. The statement made is in this particular case no more than a bare statement which could be deduced from the fact that he showed the spot, which is evidence of conduct admissible under Section 8 of the Evidence Act. Although the accused had not been formally arrested, we are satisfied that he was in the custody of the police. The police officers certainly state that he had been questioned the day before and allowed to go home—a fact which we are inclined to doubt, as the Circle Inspector states that the accused was summoned early in the morning of the 6th May by the Sub-Inspector at his request, and the Sub-Inspector states that when he went to the place of investigation on that morning he found the accused already there and does not know how he got there. We have little doubt that the accused was kept in custody throughout the previous night. We would also note a very considerable discrepancy between the evidence of the police witnesses that the statement was made at 6 o'clock in the morning, which the learned Sessions Judge has accepted as a reason for there not being any witnesses there at the time, and the statement of Lachmandas (P.W 12) that the admission was not made till 11 o'clock in the morning when he himself was present.
8. Now, although the statement is admissible, we are of opinion that very little reliance can be placed on it; and even if it were unreservedly accepted it would be quite insufficient, in the absence of other evidence against the accused, and there is none. In the first information report on the disappearance of Dau, Sital the brother of his grandfather, in describing the ornaments on Dau's person, stated that there was one kara which weighed 30 tolas. The seizure memo, recorded when Ex. B was recovered from Sital's biara, states that the karas were a pair and that the weight of the pair was 15 tolas. It was suggested by the learned counsel for the appellant that a pair of karas weighing 15 tolas would not be such as would be worn by a grown up man but would be those of a child. We have sent for the karas and on seeing them we are inclined to agree. They are small and, as they are before us with about half an inch between the openings, could not be worn on the wrists of an ordinary man. Also, although they are of the same pattern in that they are crude rings of silver without any design, they are decidedly unequal in size and weight and would not appear to form a pair. As we see them now, they could not have been slipped off anyone's wrists, neither could they have been slipped over anyone's hands: to open them at all requires very considerable force. In their present condition they are certainly not as karas would be if they had been removed from the body of a dead person. It is of course possible that they may have been pulled apart and opened and subsequently closed for the purpose of being mixed with other karas for identification, but this is an assumption which we, in the absence of any evidence to this effect, are not entitled to make. If the karas which were recovered were such as indicated that they had been removed from the person of anyone, then they have been subsequently tampered with and altered in shape, and there is no evidence how or why this was done. If they have not been tampered with, they cannot have been the karas which were taken from the body of Dau.
9. There is another circumstance which throws further suspicion on the manner in which the investigation in this case has been conducted. In the course of the investigation one Sakharam was examined, and while under examination, according to the police, on the morning of 7th May he absconded on the pretext of making water, and despite an intensive search in the village of Derba and in the surrounding villages he could not be found. Neharoo, in his examination in Court, states that he himself was tortured by the police and that Sakharam also was tortured and died in consequence. There is of course no evidence at all to support this allegation of torture, which is very commonly made, but there are events connected with the death of Sakharam, who is said to have committed suicide by hanging himself on a tree in Sitaram's biara on the night of th May which call for investigation—an investigation which was not made. It is a matter for some surprise that Sakharam could not be found despite the intensive search which is said to have been made, and yet that he should commit suicide in the village that night. The Circle Inspector in his evidence states that it was reported to him on the morning of 8th May that Sakharam had been found, hanging on a tree. As a matter of fact be was found, according to Bhagatram (P.W 5) who is the malguzar of Derba, under a tree with a portion of a out safa tied round his neck: the rest of the safa was found tied to a branch of the tree and hanging down from it. Now, if a cloth which is used in hanging a man breaks under the weight of the body, the presumption is that it breaks immediately the weight is applied, and it would appear unusual for strangulation to result at once. It was certainly a question requiring investigation.
10. Now under para. 485 of the Police Manual it is laid down for the instruction of police officers that when a person dies a sudden or unnatural death, and such person dies either while he is in police custody or when he was in any way connected with a police inquiry, intimation has to be sent by the quickest possible means to the nearest Magistrate authorized to hold inquests, and that in cases of emergency the police officer himself present can draw up the inquest report and forward the body for post mortem examination; but it is clearly laid down that there should be an inquiry and that, if the superior police officer arrives before the Magistrate, he should commence the inquiry and examine witnesses, but that this inquiry will be regarded as a preliminary to the special inquiry by the Magistrate. The Sub-Inspector was aware of this particular rule and states in his evidence that he realized that the inquest on Sakharam should have been held by a Magistrate, and that he told the Circle Inspector so: the Circle Inspector told him to mind his own business. He held the inquest himself the same day and sent the body to Rajim for post mortem examination. A report was certainly made to a Magistrate, and this report is Ex. D-2. It is however made on the ordinary form for reporting sudden and unnatural death under Section 174 of the Cr PC, and appears to have been sent to the Magistrate by the ordinary channel, and no attempt was made to get into touch with the Magistrate as soon as possible, so that an inquiry might be held as the Police Manual directs.
11. The report itself is not worded so as to make it clear that the deceased Sakharam had actually been questioned and was being questioned in the course of the inquiry. The information was sent from Abhanpur Police Station on 9th May and did not reach the Magistrate until the 17th. Not only then was no report made urgently to a Magistrate, but even the inquest report drawn up by the Circle Inspector of Police cannot be found. The Circle Inspector states that a search had been made for it in the station-house, in the Sub-divisional Magistrate's office and in the Deputy Commissioner's office, but with no result. Although Sital (P.W 1), who is the father of the deceased Sakharam, states that he had no complaint to make as to the manner in which the inquest was conducted; he is clearly not frank when he states that he does not know how his son died; and Bhagatram (P.W 5) would appear to be telling the truth when he states that Sital expressed his surprise to the police that they had been searching for Sakharam the whole of the previous day and that Sakharam was found dead that day at Sitaram's biara. Considering the suspicious nature of Sakharam's death, the omission of the Circle Inspector to mention in his evidence that he was found at the foot of the tree with a cloth tied round his neck, and leading the Court to believe by his evidence that Sakharam was found hanging on the tree, and the non-production of the inquest report, it is surprising that the Circle Inspector in his own interests should not have done all that was possible in respect of the duties enjoined on him by the Police Manual to see that a proper magisterial inquiry took place. It would seem desirable that such an inquiry should take place now, and a copy of this judgment will be forwarded to the District Magistrate. As neither of the two grounds on which the conviction by the learned Sessions Judge rests has been accepted by us, it follows that the appeal succeeds. The conviction is set aside and we direct that the accused Neharoo be released forthwith.
K.B/A.L
12. Appeal allowed.