Geidt, J.:— The Appellant Radhe Halwai is one of six persons who were tried jointly by the Sessions Judge of Gya on the charge of having caused the death of Lekhraj Mohuri. The other five were acquitted. As regards Radhe Halwai the assessors were unable to make up their minds whether he was guilty or not. He was however convicted by the Sessions Judge and sentenced to be hanged. The case comes before us both on appeal, and on the submission of the proceedings for confirmation of sentence.

It appears that in the early morning of Friday, 23rd May, Lekhraj was found by his uncle Kharag Sen lying dead in the shop of his verandah with his throat nearly cut through. Information was at once given to the police-station at Nawada only four miles off by the chowkidar, and the chowkidar was immediately followed by Kharag Sen. Both these persons threw suspicion on Radhe, as the latter had quarrelled with Lekhraj on account of the latter's intimacy with the wife of the former. The same morning Radhe's house was searched, and a shirt with a torn sleeve was found hidden under a heap of cowdung. On the following day Radhe took the Police and other villagers to the dry bed of a river near his house, and produced from under the send a small sickle. Later on the same day Radhe was produced before the Sub-Deputy Magistrate; and we find on the record a statement purporting to have been recorded by that officer as having been made by Radhe. The statement however amounts to a confession, and it should therefore have borne the certificate which sec. 164, C.Cr P., requires to be appended to all confessions recorded by a Magistrate during the course of a Police investigation. That certificate is wanting and the confession was therefore not taken in accordance with law and could not be admitted under sec. 80 of the Evidence Act without proof of its having been made.

Some five days afterwards, an Honorary Magistrate was deputed to verify the statements previously made and this gentleman has been examined as a witness. He deposes that the Appellant took him over the various places where the murder was planned and made certain statements in connection with the commission of the offence. We propose to deal with this part of the proceeding separately. On June 4th before the committing Magistrate, after the witnesses for the prosecution had been examined, Radhe made another full and detailed confession. These statements go to show that Radhe and the five other accused conspired to put Lekhraj out of the way in consequence of his licentious character and the dishonour he had brought on them and they indicate that the murder was deliberately planned. Five of the men held the unfortunate man down while the sixth Gopi cut his throat with the sickle which the Appellant had produced from the river. The share which the Appellant took in the matter was to hold Lekhraj's head, and in so doing he received a cut on the left forefinger from the sickle. The case against Radhe does not rest therefore on the confession alone, full and detailed as it is. That confession is corroborated by the stained coat found hidden in the heap of cow-dung in Radhe's house, by the production from the river bed of the sickle with which the deed was done, and by the cut on Radhe's forefinger. In our opinion these materials are amply sufficient to convict the Appellant of having taken part in the murder of Lekhraj.

It only remains to consider whether the sentence of death should be confirmed. The statements made by the accused show that the murder was, as we have said, deliberately planned, and it is not at all probable that the Appellant has exaggerated his share in that transaction. If he did not himself inflict the death wound, by holding the deceased's head, he helped actively in the commission of the murder. We see therefore no reason to interfere with the capital sentence pronounced.

We would point out to the Sessions Judge that as a confession made to a police-officer cannot be proved against an accused person, the Sub-Inspector should not have been allowed to say that Radhe confessed to him, even though the terms of the confession were not allowed to be proved.

Prinsep, J.:— The evidence set out in the judgment of my learned colleague leaves no reasonable doubt that Radhe Halwai has been properly convicted of murder, and as it is shown to have been premeditated and of an atrocious character I concur in confirming the sentence of death and dismiss the appeal. But I desire to add some observations on a part of the proceedings taken.

The prisoner Radhe Halwai was arrested by the Police at 9 A.M on 23rd May, that is, almost immediatly after the murder was reported. He was placed before the Magistrate on the following day and a statement purporting to be his confession was then recorded. At the same time the investigating police-officer sent in a statement to the same effect recorded by him. For what purpose this was so sent to the Magistrate is not stated. It finds a place on the Magistrate's record and from this there is reason to believe that it was before the Magistrate who recorded the confession of the prisoner under sec. 164, C.Cr P. If this be so, the proceedings were highly irregular. The Sub-Inspector stated in cross-examination in the Sessions Court that “he commenced questioning him at one o'clock in the night and as his statements appeared to be false he confessed at four in the morning. He was not threatened or induced when his statements were found to be false. At the time he confessed only police-officers were present and no villager was there.” From this it appears that the prisoner was subjected to a prolonged cross-examination which resulted in his confessing. He clearly did not of his own free will confess. His confession was undoubtedly the result of some pressure. When he was placed before the Magistrate for the purpose of having his confession recorded under sec. 164, C.Cr P., he was asked “what statement do you wish to make voluntarily about the murder of Lekhraj Mohuri?” and on this his statement was recorded. There was no attempt made to ascertain whether his confession was voluntarily made nor was the certificate required by sec. 164, C.Cr P., recorded by the Magistrate that he believed that the confession was voluntarily made. In the present case this was especially necessary. In considering the evidence against Radhe Halwai I have therefore put aside this statement in considering the evidence at the trial. The carelessness in regard of the law on the part of the Magistrate is reprehensible and should be brought to his notice by the District Magistrate.

The Police Inspector when placing the prisoner before the Magistrate asked for the verification of his confession “regarding conference and place where they assembled, etc.,” and for this purpose he asked for a remand of the prisoner to Police custody for two days. This was granted by the Magistrate, but it would seem that the Magistrate refused to order what is termed “a verification” the proceedings of which will be presently described.

On 28th May the Sub-Inspector thus addressed the Magistrate:

The Sub-Divisional Officer, Nawadah.

The Court Sub-Inspector informs me just now that you will hear the evidence for the prosecution to-morrow morning in the Quadergunge murder case. It appears that my prayer about sending a man to Quadergung for the verification of the confession of the accused has been rejected. I beg to state that the verification should have been done before the commencement of hearing the evidence in Court. This procedure would have assisted the Crown much as corroboration of the confession in such an important and difficult case. I request that Syed Mahomed Tazi Abazaffar, Deputy Magistrate or other reliable gentleman may be requested to verify the confession before you take evidence in Court. There is no harm if you yourself inspect the scene afterwards.

Beni Pershad Roy.

28-5-02, 4 P.M

On this the Magistrate directed the Honorary Magistrate named by the Sub-Inspector to “verify the statement of the accused” who was again remanded to Police custody for this purpose. It is remarkable that the statement to be verified was not made over to this Magistrate. He appears to have gone to the spot where the prisoner was brought before him and it is said that the prisoner pointed out to the Magistrate various places connected with the occurrence. The necessity for this is not apparent for the prisoner in a confession duly recorded by a Magistrate under sec. 164 could have indicated these places sufficiently so that they could be traced in the course of the investigation. This was the only stated object of the verification. But the Honorary Magistrate who has been examined at the trial has further stated that the prisoner made various statements to him describing how the murder was committed and giving some details not previously mentioned. The Honorary Magistrate appears to have recorded this statement which is not before us and although all this time the Police were present and the Magistrate states that the Sub-Inspector came there fifteen minutes after the prisoner. The Magistrate states that “the prisoner gave all this information voluntarily, no one threatened or induced him.” The proceedings taken before the Magistrate seem to us to be open to the strongest objection. The verification system apparently has been recently introduced in consequence of a circular issued by the Inspector-General of Police last year and there is scarcely a case of any heinous crime in which it is not now put into operation. It can very rarely be adopted for any useful purpose. Its real object seems to be to add fictitious weight to a confession recorded after an accused has been for twenty-four hours in Police custody and to embarrass a judicial officer when he has to determine at the trial whether that confession which has been repudiated and denied almost immediately after it was made and on the first opportunity when the prisoner was free from all influences, real or imaginary, from the Police, was voluntarily made and whether it is a true statement of what actually took place. From this point of view we think that the practice is very objectionable. There may possibly be cases in which it may be desirable to require an accused who has confessed to explain matters stated by him on the spot in the presence of some responsible officer unconnected with the Police investigation. Such cases must necessarily be rare. And before a Magistrate should order such proceedings to be taken he should consider the case before him and exercise some discretion before passing such an order. In this case as in several that have recently come before us no such discretion was exercised. A remand to Police custody was first of all ordered without any good reason and as already stated it was not until the police-officer had nominated an Honorary Magistrate as available for this purpose that the Magistrate deputed him to conduct what is termed a verification. It was highly objectionable and officious of the police-officer to nominate this Magistrate. I cannot believe that the system of verification as it is universally ordered has the sanction of the Local Government. In this case we have verifications before a Magistrate of matters absolutely irrelevant and we have also a Magistrate obtaining statements from an accused while in Police custody amounting to confession of guilt and without any guarantee of a written record and proceedings regularly conducted under sec. 164, C.Cr P., that the statements described were freely and intentionally made or have been accurately described. The general effect of a verification so conducted would be to give the sanction of a Magistrate's presence to anything that the investigating police-officer might bring before him. Such verifications are surely always committed to a Magistrate of the lowest class and of little or no experience. In the present case an Honorary Magistrate was so employed who would not otherwise be competent to conduct any of the proceedings in the case. How would the rural and unintelligent public regard proceedings so conducted by a Magistrate in close connection with the Police? Is it likely that any complaint would be made to such a Magistrate regarding misconduct of the Police 1 The villagers would certainly not feel that such a complaint would receive proper attention and they would therefore abstain from making a complaint which if not established would render them liable to serious consequences.

The matter is of considerable importance and deserves careful consideration and I therefore desire that these remarks be placed before the Local Government.

A.N.C

Appeal dismissed.