Emperor vs Jamuna Singh and others

Bennett, J.—This is a reference by the learned Additional Sessions Judge of Darbhanga for confirmation of the sentence of death passed by him upon Jamuna Singh, Sardanand Jha, Baldeo Chaudhri and Lala Singh. There are also appeals by the condemned persons which have been taken and heard together with the reference.

The four appellants together with two other persons, Deo Narain Gurmatia and Suraj Narain Singh alias Thahar Babu, were all tried together upon charges under Ss. 148, 302/149 and 396, and in the case of Deo Narain Gurmatia under S. 302, Penal Code. Deo Narain Gurmatia and Suraj Narain Singh alias Thahar Babu were acquitted, but the four appellants were found guilty of the charges under Ss. 302/149 and 396, Penal Code, and were sentenced to death.

The case for the prosecution was that on 5-9-1944, Junior Sub-Inspector Udit Narain Jha left Darbhanga Sadr Police Station to execute processes under Ss. 87 and 88, Criminal P.C., against one Ramlochan Singh of Andama who was an absconder. J.S.I. Udit Narain Jha left the police station at 2-30 P.M. with constables Suraj Narain Singh (P.W. 7) and Abdul Wahid (P.W. 9) on a tumtum belonging to Dil Mohammad (P.W. 8). The J.S.I. had a fully loaded five chambered revolver, No. 49886, in a holster with a Sam Brown belt and five spare bullets, which were the property of S.I. Jagdish Pande (P.W. 24) who had lent them to J.S.I. Udit Babu. The two constables were armed with shot-guns and cartridges. They reached Andama between 4-30 and 5 P.M., where they met sis chaukidars, who had been sent on ahead, namely Ramdhari Dusadh (P.W. 12), Sukhdeo Dusadh (P.W. 15), Ramcharan Dusadh (P.W. 16), Tunia Dusadh (P.W. 13), Khusilal (P.W. 14) and Kamala Dusadh, the latter being the chaukidar of village Andama. They all went to the house of Ramlochan Singh, son of Sonedhari Singh of Andama, which was pointed out to them by Kamala Dusadh. Ramlochan Singh was not there but his father was. S.I. Udit Babu attached various properties, including nine kewaries, one pair tetalia and some dried chillies. Kamala Dusadh pointed out one pair of bullock which were tied at the house of another person and they were also attached. Kamala Dusadh then brought a bullock-cart and the attached articles were loaded on it. In the meantime, on 5-9-1944, a party of members of the Azad party, including the six appellants, who had been collecting arms elsewhere, had arrived at Beruaghat, about one mile northeast of Andama, and had contacted Kapileshwar Singh, the younger brother of Eamloehan Singh, and through him had obtained food and provisions. Later, they heard through Kapileshwar of the arrival of the police party and the attachment of the articles belonging to Ramlochan and his family. After consultation amongst themselves they decided to attack the Sub-Inspector, the police men and the chaukidars, to tie them up and take away their guns and revolvers. Therefore, at dusk they moved west from Beruaghat through an orchard and then across some fields and a road running north from Andama to join the Darbhanga Beruaghat Road and into a mango orchard lying south of that road. The mango ochard in question is about two bighas in area and is situated at a solitary place. Between the road and this orchard there is a small embankment lined with sisam trees. The orchard is about one mile north of Andama village. The northern side of the orchard is about eight laggas in length. The party of the members of the Azad party, according to the approver Kapileshwar Singh (P.W. 1), consisted of the sis accused and himself. When they reached the northern boundary of the orchard they lined the embankment, Deo Narain Gurmatia and Suraj Narain Singh standing to the east of the line and then, going west, appellant Lala Singh, then appellant Sardanand Jha, then appellant Baldeva Chaudhri, then the approver Kapileshwar (P.W. 1) and then the appellant Jamuna Singh. Suraj Narain had light and a rope in his hand, Deo Narain Gurmatia had a gun, Lala had a light in his hand, Sardanand Jha had a gun, Baldeva Chaudhri had a gun, the approver Kapileshwar had a gun, and the appellant Jamuna Singh had a light and a rope. They agreed that when the police party should come opposite to them, Deo Narain Gurmatia should fire from the east, Sardanand Jha should fire from the west, that they would all of them call upon the police party to surrender and, if they did not surrender that they would fire at their legs and would snatch away the gun and the Sub-Inspector''s revolver. When the police party left Andama it was already dark. They were followed by a large crowd of villagers who were protesting against the attachment of the bullocks and other property belonging to Ramlochan Singh''s family and trying to bribe S.I. Udit Narain Jha to release the attached articles. They found that the road leading from Andama and Beruaghat Road had been cut in two places. They had to halt to mend the road, which they did with the help of an electric torch carried by S.I. Udit Narain Jha. There was also a lantern on the bullock-cart. By the time the police party arrived at a point opposite the ambush, it was already 7-30 P.M. At this point or shortly before, the villagers, who had been following them turned back to Andama. As they reached that point, Suraj Narajn Singh flashed his torchlight on the Sub-Inspector who thereupon also flashed his torch in the direction of the orchard. Upon this 3 or 4 torchlights were flashed and two shots were fired from the orchard in quick succession. S.I. Udit Babu was hit and felled from the tumtum on to the road. The pony shied and the tumtum overturned into the field a adjacent north of the road. Further shots were fired and the tumtum drives Dil Mohammad and constable Abdul Wahid were injured. The members of the police party ran away in all directions and they hid in the fields in the vicinity of the place of occurrence where there were standing paddy crops. A number of dacoits then came on to the road. Further shots were fired and at least one constable Suraj Narain Singh returned the fire with two shots from the paddy field in which he had concealed himself. The dacoits on the road with the help of their torchlights removed the belt and revolver from the body of Sub-Inspector Udit Narain Jha. After this the dacoits all went off towards the east.

The fard-beyan of constable Abdul Wahid (P.W. 9), which has been treated as the first information report in the case, was recorded at Darbhanga Hospital at 3 A.M. on 6-9-1914, by Rai Bahadur Ram Narain Singh, Superintendent of Police. On receiving information from the Superintendent of Police, S.I. Jagdish Pande left Andama with an armed force. He first met the tumtum driver Dil Mohammad on the way at Chandanpatti at 315 A.M. and recorded his statement. He then proceeded to Jogiara Hat where he met Suraj Narain Singh constable and Ramdhari, Sukhdeo, Khusi, Ramcharan and Tunia chaukidars, and he there recorded their statements commencing to do so at 4 A.M. He then proceeded to Andama taking the constables and the chaukidars with him. On reaching the place of occurrence he found the bullock-cart lying across the road and the articles attached by S.I. Udit Babu still present therein, but the two bullocks had disappeared. He found the body of the Sub-Inspector on the road with gunshot injuries thereon. The tumtum was found north of the dead body in the fields about 6 or 7 yards away. The tumtum was overturned, the pony was underneath and the basta of S.I. Udit Babu was found under the tumtum together with a short-gun which had been given to constable Abdul Wahid. S.I. Jagdish Pande inspected the orchard and found indistinct foot-prints leading from there to Beruaghat and from Beruaghat thereto, and also to and from Andama. He sent the body of S.I. Udit Babu for post-mortem examination and about 11 A.M. he found the body of Kamala Dusadh chaukidar in a field about 300 yards northwest of the place of occurrence. His body too had gunshot wounds. The Sub-Inspector found the two breaches on the road between the place of, occurrence and village Andama and then went to Beruaghata and there, about 300 yards south of the temple of Ham Fadarath Das, he found 20 plantain leaves with remains of rice, pulse, vegetables and curd on them. On the same day in addition to the police and chaukidar witnesses and the tumtum driver, he also examined Chaudhri Deohar (P.W. 17), Dorhai Mallah (P.W. 20), Jhingur Dusadh (P.W. 19), and on 7-9-1944, he examined Gobind Missir (P.W. 21). On 8-9-1944, he found two bullocks in the char near Andama with gunshot injuries. On 15-10-1944, at 1 A.M. an armed police force led by S.I. Zakaria (P.W. 47) and A.S.I. Gaya Prasad (P.W. 46) raided the house of one Ramlakhan Salaita of village Nihri, police station Laukaha, and in one of the rooms of that house the appellant Jamuna Singh and another person named Upendra Missir were arrested. Jamuna Singh when arrested was in possession of a D.B.B.L. gun and one live revolver-cartridge was found in Upendra Missir''s pocket. After their arrest and at about 3 A.M., whilst completing the search of the house, they found a five chambered fully loaded revolver in a holster concealed under the earth in the same room as that in which the appellants Jamuna Singh and Upendra Missir had been arrested. A piece of the strap was protruding from the ground. A seizure-list (Ex. S2) was prepared by the A.S.I. at the dictation of the Sub-Inspector and was signed by Muhammad Jan Laheri, (P.W. 44) and Lalji Salaita (P.W. 43) both of village Nihri, who were witnesses of the search and the recovery. On inspection it was found that at two places the number on the revolver and also the inscription "Mahendra Narain Singh P.T.C. 1930" had been erased, apparently by filing, but the No. 49886 was loft at one place inside the revolver, having apparently been overlooked.

The appellant Jamuna Singh was arrested on 15-10-1944, and at a test identification parade held on 7-11-1944, he was identified by P.W.''s 9, 12, 13, 14, 15, 16, 17, 19, 20 and 21 as a member of the attacking party.

On 12-11-1944, the appellants Sardanand Jha and Lala Singh were arrested together at Benares by Dallu Singh (P.W. 41). Suraj Narain Singh was arrested on 24-11-1944, at the same place in Benares by Narendra Nath Dubey (P.W. 40). Appellant Baldeva Chaudhri was arrested on 26-11-1944, in company with Ram Lochan Singh at Samaspur, police station Shakra, by Agar Singh (P.W. 3). Deo Narain Gurmatia was arrested on 10-1-1945, by Nirsu Jha (P.W. 25) in Calcutta. On 8-1-1945, the appellant Baldeva Chaudhri was brought before a Magistrate and his confession taken under S. 164, Criminal P.C. On 3-2-1945, the approver Kapileshwar Singh was arrested in Muzaffarpur, and on 23 and 24-2-1945, be was taken before a Magistrate and his confession recorded under S. 164.

A test identification of appellant Sardanand Jha and Lala Singh was held on 30-3-1945. A farther test identification was held on 2-4-1945, of appellant Baldeva Chaudhri. On the same day a further test identification was held of Baldeva Chaudhri together with the approver.

The case for the appellants, which was argued by Mr. Jaleshwar Prasad with his usual ability and restraint, was that the alleged confession of Baldeva Chaudhri should not have been admitted in evidence, that the evidence of the approver Kapileshwar Singh (P.W. 1) could not be relied upon to any substantial extent, that Kapileshwar Singh had been instigated by the police to falsely implicate the appellants as political suspects, that the circumstances pointed to an act of revenge by the villegers of Andama for the processes under Ss. 87 and 88, Criminal P.C., that Kapileshwar to protect his Co-villagers would have been willing, therefore, to fall in with the police suggestions, that none of the test identifications could be relied upon and that in the case of Jamuna Singh the circumstances of the finding of the revolver stolen from S.I. Udit Narain Jha did not, in any way, implicate Jamuna Singh as one of the persons who had taken part in the incident in question.

It will be convenient to consider in relation to the case against all four appellants, first, the admissibility of the appellant Baldeva Chaudhri''s alleged confession, and secondly, the weight to be accorded to the evidence of the approver Kapileshwar Singh, and thereafter to consider the individual cases of each of the appellants.

A number of grounds were relied upon by Mr. Jaleshwar Prasad for his contention that Baldeva Chaudhri''s alleged confession should not have been admitted in evidence. He pointed out, firstly, that although the Magistrate who took that confession on 28-1-1945, had signed the prescribed memorandum that he had explained to Baldeva Chaudhri that be was not bound to make confession, yet there was no mention of that explanation in the questions asked by the Magistrate for the purpose of ascertaining whether Baldeva Chaudhri was prepared to make a statement of his own free will and that in cross-examination the Magistrate had admitted that he asked no other questions and that he had filled up the form as a matter of routine. Provided that the Magistrate has explained to the person about to make a confession that he is not bound to make a confession, there is no necessity for him to include a statement to that effect in, the questions which he asks in order to ascertain whether the accused is prepared to make a statement of his own free will and the admission by the learned Magistrate that he asked no questions for that purpose, other than those recorded, does not, on the face of it, carry the matter further, since the explanation required by the opening words of S. 164 (3), Criminal P. C., is not a question. Nor do I think that the Magistrate''s mere admission in cross-examination that he filled up the form as a matter of routine is sufficient in itself substantially to throw doubt on the statement, which the Magistrate certified by his signature to the prescribed memorandum, that he had given the prescribed warnings. I do not think that the above mentioned circumstances are sufficient in themselves to displace the presumption which the Court is directed to make by S. 80, Evidence Act, 1872. Nevertheless some substantial doubt is thrown upon the certificate in the prescribed memorandum by the fact that in the questions asked by the Magistrate in order to ascertain whether the accused was to make a statement of his own free will is included the following statement : "Your statement may be used in evidence against you". If the Magistrate had given the warning prescribed by the opening phrase of S. 164 (3), which includes the warning that any statement made may be used as evidence against the accused, it is difficult to understand why he only repeated half of that warning in the questions asked to ascertain whether the accused was prepared to make & statement of his own free will, and the inference is that no warning or explanation was given other than that which he included in the said questions. Section 164 (3), Criminal P.C., however, does not lay down any specific form of words in which the Magistrate is required to give the necessary explanation. It is sufficient that before the confession was made it was brought home to the mind of the accused that he was not bound to make a confession. The actual questions and answers asked by the Magistrate in order to ascertain whether the accused was prepared to make a statement of his own free will were as follows:

Questions. Answers.

"I am a Magistrate. Have you got to make any statement?". "Yes, Sir".

"Are you making statement not at the instigation and pressure by any one?" "Yes, Sir, I am stating of my own accord."

"Why do you want to make a statement?" "I want to give out the true fact,"

Your statement may be used in evidence against you?" "Yes. Sir I under-stand It shall make statement."

"Think over the matter again. I give you time, two hours." (After two hours of time granted for reflection).

"shall make statement."

In para. 7 of the memorandum the Magistrate stated his reasons for believing that the statement was voluntarily made in these words:

The accused is literate and insists for making confession in spite of repeated warning as above.

Having regard to the answers given by Baldeva Chaudhri to the last three questions asked by the Magistrate, as above set out, I am of opinion that it can hardly be suggested that he did not fully realise that he was not bound to make a confession and that, therefore, the requirement of the first phrase in S. 164 (3), Criminal P.C., has been satisfied. If the case depended on a decision on this point I should hesitate long before I dissented from the view of my learned brother who has formed a contrary opinion; but, even if I am wrong, I am very doubtful whether the failure of the Magistrate in accordance with the opening phrase of S. 164 (3), Criminal P.C., to warn the appellant Baldeva Chaudhri that he was not bound to make a confession, would of it self suffice to render the confession inadmissible. As will be seen later, I am of the opinion that the confession is inadmissible on other grounds and it is not, therefore, desirable that I should express a final opinion on the point in this ease. I think it right, however, in deference to the arguments which were addressed to us, to point out that in none of the cases rolled upon by Mr. Jaleshwar Prasad for his contention that this failure of the Magistrate operated to make the confession inadmissible, namely, the decision of the Privy Council in AIR 1936 253 (Privy Council) and the two decisions of a Division Bench of this Court, namely, Emperor Vs. Kommoju Brahman, and Punia Mallah and Others Vs. Emperor, , was the attention of their Lordships called to nor did their Lordships in any way consider the effect of S. 29, Evidence Act, 1872, and in the first two cases above referred to, this specific point did not arise. There are, in my view, the following five weighty matters which would have to be considered and discarded before following the decision of the Division Bench of this Court in Punia Mallah and Others Vs. Emperor, , namely firstly, the principle that a provision in a subsequent statute, which does not refer to a provision in pari materia in a former statute, must not be taken to repeal the former provision unless the two provisions are so inconsistent and repugnant to each other that they cannot stand and be read together; secondly, the principle that the test as to whether in such a case the two statutes can be read together, is whether some application may be made of the words in the later statute consistently with the acceptance of the words in the earlier Statute; thirdly, that the opening phrase of S. 164 (3) which was introduced by the 1923 amendment, can be given some application, if the direction there given to a Magistrate taking a confession is read as being directory only and not as being mandatory and that S. 29, Evidence Act, and S. 164 (3) Criminal P.C., can, therefore, be read together; fourthly, that the manner in which the first phrase of S. 164 (3), was introduced by the 1923 amendment, when compared with the then existing and immediately following negative and mandatory provision, lends considerable support to the proposition that the opening phrase, introduced by the 1923 amendment was intended to be directory only, since, if the Legislature had intended that it should be mandatory, the natural form of the amendment would have been to include the provision in the existing and immediately following negative and mandatory provision, and the subsection would then have read, "No Magistrate shall record any such confession unless be has previously explained to the person making it that he is not bound to make a confession and that, if, he does so, it may be used as evidence against him and unless, upon questioning the person making it, he has reason to believe that it was made voluntarily etc., etc."; fifthly, because no fundamentally useful purpose would be served by holding that the provision in S. 164 (3) introduced by the 1923 amendment is mandatory since the explanation which the Magistrate is there directed to give is nothing more than one, amongst other means, of ensuring that the confession is made voluntarily, but that purpose is ensured by the mandatory and then existing provision which immediately follows the 1923 amendment; the greater purpose of this latter provision therefore includes for all practical purposes the lesser purpose of the former provision.

Mr. Jaleshwar Prasad next contended that the confession was inadmissible because the Magistrate had made no sufficient inquiry as to the voluntary character of the confession he was about to make. (His Lordship considered the contention of the learned counsel and concluded that the Magistrate had discharged the mandatory duty put upon him by provision 2 of S. 164 (3), Criminal P.C., and then proceeded further) :

Thirdly, Mr. Jaleshwar Prasad contended that the circumstances showed that the confession had been obtained by some form of improper inducement, threat or promise, and was, therefore, inadmissible under S. 24, Evidence Act, 1872. He emphasised, firstly, Baldeva Chaudhri''s lengthy detention in an interrogation camp in conjunction with the admission in cross-examination by P.W. 42, Kedarnath Sharma, the then Sub-inspector in charge of that camp, that although he said it was not his duty to interrogate persons in the camp yet it was his duty to elicit information from them by any method he thought proper; secondly, the fact that Ramlochan Singh, who was arrested with Baldeva Chaudhri and also taken to this camp, and Kapileshwar Singh who was later taken to that camp, all confessed, whereas no other accused made any confession; thirdly, he referred to the terms in which Baldeva Chaudhri in his examination under S. 342, Criminal P.C., had retracted his confession. It will, I think, be convenient to set out this latter statement in full:

In connection with 1942 disturbances I was brought to Samastipur under arrest. Ramlochan Singh was in the same jail. We were both sent together from there to Patna Camp Jail. There I came to know Ramlochan. The police kept oppressing me in various ways after I was acquitted. On 26th December 1944, I was arrested and brought to Sakra police station. Ramlochan Singh was also brought there. On 27 12-1944 Jagdish Pandey, Bedanand Jha and Deonandan Prasad arrived at Sakra police station. Kedar Sharma and Nirsu Jha and others also came there from Muzaffarpur. They began pressing me to make a statement. I said I knew nothing about the affair. Kedar Sharma and Bedanand Jha and Jagdish Pandey then began assaulting me, till I became unconscious. When I recovered they again threatened to kill me unless I disclosed everything. I still protested my ignorance of the whole affair. Then they forcibly pulled out my moustache and made me drink urine. On the evening of 27th December I was taken to Muzaffarpur and kept in the town police station and I was kept there for one week. During this time I was similarly maltreated by the police and threatened with hanging but I always refused to make any statement. One day Nirsu Jha and Kedar Sharma took me a way in a track and kept me locked up in a room. Ramlochan Singh was shut up in the next room. From there Ramlochan told me that it was advisable to do as the C.I.D. people said, but I refused. One day Ramlochan was taken away. When he returned he told me that his relations and many people of Andama had been falsely implicated in the murder case and that the whole village had been looted by the police. He advised me that the only way I could escape was to do according to the wish of the C.I.D. When I thought over this I became upset when I was again much beaten by Nirsu Jha and others and threatened with hanging and became very weak. I consented to do as they said. They then gave me a copy of a statement and told me that I should have to depose to that effect before the Magistrate. I said that it was entirely false. Then they again beat me and put dung and urine into my mouth. Then I was made to memorise the statement which was given to me. After 2-3 days I was sent to jail and was told that I should be produced before Magistrate and made to say all these things. I assented. On 25-1-45 I was sent to jail and on 27-1-45 Nirsu Jha and Kedar Sharma took me to the Magistrate. On the way I refused to become approver. Then they took me back to the same place in which I was formerly and there began beating me again very severely of which the scars are still visible. Then I said I was willing to make a statement before the Magistrate that day. In the evening I was taken back to jail. On 28-1-45, Kedar Sharma again took me to the Magistrate and I did not dare to refuse to make a statement. Then I made a false statement to the Magistrate out of fear of the C.I.D and I signed on it as directed by the Magistrate. Then I was again sent to jail. After wards the C.I.D. frequently visited me and pressed me to turn approver but I refused. Then they stopped coming to see me.

I am quite innocent. My so-called confession was false and obtained by police torture and brutality. I have no acquaintance with Kapileshwar.

fourthly, the apparently evasive answers given by Kedar Nath Sharma (P.W. 42) in his cross-examination as to the circumstances surrounding the confession. In the course of his cross-examination Kedarnath, Sharma stated inter alia

I learnt from some jail-warder that Baldeva was ready to make a confession. I took him from the jail to the Magistrate. I do not remember if on the first day, he was produced before the Magistrate he did not confess. I produced him before the Magistrate once. I do not remember if I produced him before the Magistrate on both occasions. It is not a fact that in camp I was always pressing Baldeva to confess. It is not a fact that I pulled out Baldeva''s moustache. I do not know when he appeared before the Magistrate he had the moustache. I do not know how long he was kept outside jail. He made confession after being in jail for 4 or 5 days. During this time I learnt that he wished to confess. I cannot say the name of the warder from whom I learnt this, nor on which date it was, I do not remember if I verified this from Baldeva before petitioning the Magistrate. I understood the confession would be about the Arms Act case. I was not anxious that he should make the confession. I do not remember if Baldeva was kept out of jail for 4 hours for the first time he was taken out of jail I did not tell him that he was still in my power although, he had been sent to jail. I came to know Baldeva had confessed. I did not Bee confession. I did not want to see it.

The learned Sessions Judge, to whom we are indebted for an admirably clear statement of the facts and analysis of the evidence, rejected the plea that the confession had been improperly adduced, partly because he considered that the onus of proof of invalidating circumstances rested upon the accused, partly because he observed that it was impossible to credit that the Magistrate at the time of questioning Baldeva Chaudhuri and recording his statement would not have detected that the accused had been severely beaten only on the previous day, partly because the fact that Baldeva Chaudhuri was taken from the jail on 27-1-1946, and kept outside the Jail for several hours although not produced before the Magistrate, was a matter readily susceptible of both oral and documentary proof. In view of the apparently obvious evasions by Kedar Nath Sharma (P.W. 42) in regard to the happenings on 27-1-1945, when, as Baldeva Chaudhuri alleged in his statement under S. 342, Criminal P. 0� he was taken from the jail and beaten until he agreed to make a statement and the apparent means thereby provided of testing, firstly, whether there was any truth in Baldeva''s statement, and secondly, the purpose behind Kedar Nath Sharma''s apparent evasions, we considered it proper in the interest of justice, there being no objection either by Mr. Jaleshwar Prasad on be half of the appellants or on behalf of the Crown, to hear additional evidence as to whether or not Baldeva Chaudhury was, in fact, taken out of jail on 27-1.1945. We, therefore, called Ramdeo Ojha, who has been Assistant Jailor at Muzaffarpur District Jail, since 5-5-1944, This witness produced the jail register maintained by the gate-warder for the period from 21-1-1935, to 8 2-1945. This register showed that Baldeva Chaudhuri was brought to jail at 10 P.M. on 25-1-1945, by Kedar Nath Sharma (P.W. 42) and four constables, that on 27th January, he was taken out of the jail at 3-40 P.M. by two constables for the purpose of being taken to the Sub-divisional Officer''s Court and that he was brought back at 5-30 P.M. on that day by Kedar Nath Sharma and the same two constables. The register further showed that on 28-1-1945, the date on which Baldeva Chaudhuri finally made, his confession to the Magistrate, he was taken out of the jail at 9-32 A.M. for the purpose of being taken to the Sub divisional Officer''s Court and was brought back at 6-25 P.M. by Kedar Nath Sharma and the five constables. The Magistrate, who took his confession, has noted that he was brought to him at 9-30 A.M. on 28th January. The witness stated that the Magistrate''s house was 4 miles from the jail, and it is, therefore, apparent that Baldeva Chaudhuri must have seen taken there by car. These entries in the jail-register lend substantial support to part of Baldeva Chaudhuri''s statement under S. 342, Criminal P.C., and they cast the gravest suspicion on the reasons for Kedar Nath Sharma''s apparent evasions in cross-examination. Baldeva Chaudhuri was not, so far as we know, produced before the Magistrate on 27-1-1945, and he was brought back to the jail by Kedar Nath Sharma. To my mind, it is unlikely that Kedar Nath Sharma had really forgotten this incident at the date of the trial. If he had not forgotten, what was he concealing? It is possible that out of ignorance and a mistaken impression that he would thereby assist the prosecution case he desired to conceal his efforts to obtain the confession. But it is also possible that he was trying to conceal what the nature of these efforts was. The learned Sessions Judge was, I think, to some extent incorrect in stating that, the burden of proving circumstances invalidating a confession lies upon the accused. The word used in S. 24, Evidence Act, 1872, is "appear" and not "prove" and it is sufficient to exclude a confession under that section if there are circumstances in evidence which afford a well grounded conjecture that the confession was not voluntary. Having regard to all the circumstances above staged, and in particular to the inferences arising from a comparison of the entries in the jail-register with the statements of the appellant Baldeva Chaudhuri under S. 342, Criminal P.C., as above stated I am of opinion that there is in the record matter upon which a well-grounded conjecture that Baldeva Chaudhuri''s confession was not voluntary can and should be made, and that the confession was therefore inadmissible in evidence.

His Lordship then considered the evidence of the approver and continued): It seems to me, therefore, that the suppressions in the approver''s evidence do not necessarily or even substantially affect the probable truth of his statement on the two essential points. Nevertheless, this is very clearly not one of those very exceptional cases where the circumstances are such as to remove all the grounds upon which the evidence of an accomplice can be regarded with suspicion and am justify a conviction on his evidence alone.

Before turning to the separate case of each appellant, I will first deal with an argument raised by Mr. Jaleshwar Prasad that the convictions under S. 302/149, Penal Code, cannot stand because on the basis of the approver''s story the common intention to kill the police officers alleged in the charge cannot be substantiated. In considering whether the alleged common intention was or was not established, we must look to the evidence as a whole and not merely to that of one of the witnesses. It is true that; the approver speaks, and he is the only witness to speak with any pretension to knowledge, of the agreed common object of the attacking party. But the common intention of an unlawful assembly may also properly be gathered from its acts, and in this sense S. 149 differs from S. 34, Penal Code, in that whereas S. 34 connotes a pre-arranged plan, S. 149 does not. To establish; that an unlawful assembly had a particular common object within the meaning of the later section, it is sufficient to show that at any moment before the commission of the act in; question, the behaviour of that assembly was such as to justify the imputation of a common object to commit that act. Of course, where a pre-arranged plan is established, the burden of proving that the common object of that plan was abandoned in favour of some other purpose is on the prosecution. The evidence of the approver on this point was as follows:

I told Suraj Narain that my properties were being attached including my bullocks and hewars etc. Sura; Narain told me to go apart from whore they were. They made me go 2 or 3 laggas apart and they all began consulting each other. There wore only the six accused persons there. After consultation they called me and Suraj Narain told me that they would tie up the police and take their guns and evolver. We waited till dusk. Then we left that orchard and cape to another orchard. From that orchard Andarm is visible.....When we saw the police party we left the orchard and went to Beruaghat. We met Sarda Pandit there, We told Sarda Pandit that the police party was coming. Then Sarda Pandit said that the Sabarsa incident, where 5 or 6 members of the Azad Party were shot by the police, should not be repeated here. Suraj Narain, Deo Narain and others again consulted amongst themselves. After consultation we went to a mango gachhi belonging to Shiblal Singh .... At Beruaghat it bad been decided after Parda Pandit spoke of the Sonebarsa incident that when the police party should come, the; should form a line from east to west and that the armed men should open fire from the east and west sides and the others should flail on them to surrender.....After the bullocks and the bullock cart had gone ahead when the S.I. on tumtum came level with Deo Narain Gurmatia and Suraj Narain who were on the eastern, side Suraj Narain flashed his torch on the S.I. and Deo Narain Gurmatia fired both barrels of his gun at the S.I.

Of the first two shots, one was directly responsible for the death of the Sub. Inspector Udit Narain Jha, and the other wounded him in the ear. It is clear that both shots were deliberately aimed at him. Acts speak louder than words, and the ordinary inference from these two shots fired from ambush would be that this party had formed a common intention to kill the police. It is possible, however, that Deo Narain Gurmatia, if it was he who fired at the Sub-Inspector, or if, not, whoever did so, went further than the pre-arranged plan, and it is possible to read the approver''s evidence as meaning that the, common object was to fire to frighten the police and then to call upon them to surrender. Even, however, if the appellants are given the benefit of the doubt upon this point, I do not think myself that the convictions under S. 302/149 should in any way be vitiated. It would have been open to the Court to have framed an alternative charge alleging a common object to commit dacoity and forcibly to steal the guns of the police and the revolver of the Sub-Inspector in circumstances where each member of the unlawful assembly knew that death was a likely result, and it was, therefore, open to the Court, and is, therefore, open to us to convict the accused of that offence. I have no doubt whatsoever that in the circumstances of the case each member of the attacking party, which was armed with guns, and who all of them knew that the police party was armed with guns, must be deemed to have known that death was a likely consequence of the carrying out of their common object to steal the guns. If, as this alternative common object connotes, the intention was not to fire to kill in the first instance, each member of the party must have realised the possibility that the police would do their duty and fight and return the fire and that in the ensuing fight the death of one or more of the police party was likely. Moreover, the accused ware also charged and convicted under S. 396, Penal Code, which section also carries the death sentence. The point of the contention, therefore, in the circumstances of this case, has a little more than academic interest, except as to sentence.

Turning to the case against each particular appellant, I will first take the case against Baldeva Chaudhri. The minimum corroboration which the law ordinarily requires of the evidence of an accomplice is evidence of at least one material fact pointing to the guilt of the accused person. The weight of such corroborative evidence which is necessary in any case, depends upon the particular facts and circumstances of that case. The corroboration of the approver''s evidence relied upon as against Baldeva Chaudhri is his identification by Chaudhri Deohar P.W. 17. Mr. Jaleshwar Prasad has urged that the evidence of this witness is not to be relied upon because at the trial he said that Ramlochan whom he had seen in the party of 20 to 25 men going from Beruaghat to Shiblal''s orchard was the Ramlochan son of Jamuna and not Ramlochan Singh the brother of Kapileshwar, whereas he clearly told the police that he had seen Ramlochan Singh with his brother Kapileshwar Singh and that both had guns. This witness''s statement was taken by the investigating officer on the day after the occurrence, and the fact that he has allowed himself to be influenced by the prosecution to fall in with the approver''s statement that Ramlochan Singh was not present, does not in my opinion substantially detract from that part of his evidence which was not contradicted by his statement to the police. Mr. Jaleshwar Prasad also urged that the note made by the Magistrate holding the test identification in para. 7 of the identification chart as to the connection in which this witness identified Baldeva Chaudhri, namely, "as a member of a mob of 10 to 12 persons whom he had seen moving in village Andama on the alleged date of gun-firing", was prima facie inconsistent with his evidence, and threw doubt on his statement in evidence that he had identified Baldeva Chaudhuri as one of the 7 to 8 persons, of whom 4 to 5 had guns, who were ahead of the party which at 7 p.m. on the night in question went from Beruaghat to Shiblal''s orchard. This Suggestion can only possess force if there was a possibility that at the test identification parade the witness was referring to some other mob of persons than those to whom he was referring in evidence. In cross-examination the witness denied that he had told the Magistrate that he had seen the suspect Baldeva Chaudhuri moving in Andama with 10 to 12 others. It is to be remarked that in para. 1 of the test identification chart the instructions to the Magistrate as to what should be recorded by him as to the connection in which a suspect is identified, are

No detailed statement is to be recorded by he officer holding the parade but merely the briefest note

It is further to be noticed that in para. 1 of the identification chart, whore the Magistrate holding this test identification has set out the required brief statement of the alleged facts of the case in connection with which the identification parade is being held and which he is required to explain to each witness, the Magistrate had entered the following note :

On the 5th September at about 8 p.m., S.I.U.N. Jha was returning after execution of processes against Ramlochan Singh. At the end of village Andama from an orchard torches were flashed and gun shot at the party. Prior to this there was assemblage of suspects at Birua and some had crossed at Beruaghat after occurrence

It Seems to me, therefore, to be possible, at the very least, that the Magistrate''s note as to the connection in which this witness identified Baldeva Chaudhuri was merely a very rough summary by the Magistrate who was bearing in mind both what the witness said and the alleged facts of the case which he had previously entered in para. 1 of the identification chart. It was not suggested in the cross-examination of this witness that he had seen any other mob moving in village Andama on that day. Nor was any suggestion made to him in his cross-examination that when examined by the Sub-Inspector on the day after the occurrence he had given any substantially different account of the matter in this respect to that which he gave in evidence. In these circumstances, the note in para. 7 of the identification chart does not appear to me necessarily to constitute any substantial ground upon to doubt that the witness''s identification of Baldeva Chaudhuri at the test identification was, as he has said in his evidence, that of one of the men whom he saw in the leading party of 7 or 8 men going from Beruaghat to Shiblal''s orchard on the night in question It is true that this witness failed to identify Baldova Chaudhuri in the committal proceedings, but a further seven months had elapsed between the test identification and the committal proceedings. Due precautions were taken to obviate collusion, there is no ground for supposing that the test identification was not a genuine one, and the witness''s failure to identify this appellant, seven months later, would, not necessarily detract from the fact of his identification at the test identification parade.

All the above mentioned circumstances must be given their due weight in concluding whether or not the identification of Baldeva Chaudhri by P.W. 17 constitutes a sufficient corroboration of the approver''s evidence against him, but, for the reasons which will shortly appear, I do not think that I should express any final opinion thereon at this stage. It was accepted as a sufficient corroboration by the learned Sessions Judge on the basis that Baldeva Chaudhari''s confession was admissible in evidence, and the learned Sessions Judge has not stated whether he would have accepted the test identification alone as a sufficient corroboration of the approver''s evidence. The fact that Baldeva Chaudhri was seen in the company of an armed party of men going from Beruaghat to the place of occurrence shortly before the occurrence is a fact pointing to his guilt and it is a fact which, if fully accepted, would, in the absence of explanation by the appellant, be sufficient to have justified his conviction. Unfortunately, Baldeva Chadhuari, contrary to the provisions of S. 342, Criminal P.C., has been given no specific opportunity of explaining why the inference that he was actually in the attacking party should not be drawn from the fact that he was seen with that party shortly before the occurrence. In examination under S. 342 he was asked only the general question, "What have you got say?", to which) be answered, "I have not committed the offence. The case is false." It has been pointed out in a series of decisions that such a general question does not suffice to discharge the duty placed upon the Court by S. 342, Criminal P.C., and any doubt, if there ever was any doubt on the point, was completely dispelled by the decision of their Lordships of the Privy Council in 14 P.L.T. 305, where their Lordships held that it was the duty of the presiding Judge under S. 342, Criminal P.C., to cause the accused''s attention to be drawn to any vital point in the evidence against him and ask for an explanation, and that unless that is done no inference against the accused can be drawn upon that evidence. Baldeva Chaudhuri may or may not be able to give a convincing explanation of his presence with the attacking party shortly before the occurrence consistent with his absence there from at the time of the occurrence itself. The point is that he has been given no opportunity to give that explanation. Having regard to the apparent strength of the case against Baldeva Chaudhuri, I do not think that this is a case where we should simply quash the conviction, and I think that there must, therefore, be a retrial, but, in accordance with practice, that retrial will be only from the stage of his examination under S. 342, Criminal P.C. The two vital facts in evidence against Baldeo Chaudhuri are, firstly, the approver''s evidence that be was in the attacking party, and secondly, P.W. 17''s identification of him as a member of that party shortly before the occurrence. Before he is examined at the re-trial under S. 342, Criminal P.C., the section should be read out to him and particularly it should be explained to; him both that he is under no obligation to tender any explanation of the matters as to which he is about to be questioned and that the Court will, be at (sic) to draw such inferences as it may think just both from any such refusal and from any explanation he may give. His attention should then be drawn to the vital parts of the approver''s evidence against him and he should be asked whether he desires to furnish any explanation as to why that evidence should not be believed. After that, his attention should be drawn to P.W. 17''s identification of him as being a member of the accused party of 7-8 men of whom 4-5 were armed with guns who at 7 P.M. on the night of the occurrence were seen moving from Beruaghat to Shiblal''s orchard and he should be asked, firstly, whether be desires to furnish any explanation why that evidence should not be believed, and secondly, whether he desires to furnish any explanation as to why, if P.W. 17''s evidence is believed, the Court should not infer there from that he remained with and formed part of the party that actually carried out the attack.

The evidence against Jamuna Singh was, firstly, that of the approver, secondly, his identification at the test identification held on 7-11-1944, by P.W''s 9, 12, 13, 14, 15, 16, 17, 19, 20 and 21, and thirdly, the finding of the revolver which was stolen from J.S.I. Udit Narain Jha, partially concealed in the earth of the floor of the room in which he was arrested on 15-10-1944. The test identification in question is open to criticism on several grounds. The parade was held in Darbhanga Jail and the Magistrate holding the parade (P.W. 32) admitted in cross examination that the appellant Jamuna Singh had told him at the time of the test identification that he had been taken to the police-station and shown to the identifying witnesses before the parade and had asked him to note his objection in the chart, though he had not done so because there was no column for it in the identification chart. The Jail register, which was produced by P.W. 35, showed that Jamuna Singh was taken to the Jail on 5-11-1944, and that he had not been taken out of Jail either, on 6th or 7-11-1944. P.W. 39, Constable Chandreshwar Sing, who was a member of the escort party, who took Jamuna Singh and Upendra Missir from Madhubani sub jail on 5-11-1944, said that they left Madhubani at 2 P.M. and reached Darbhanga Jail, 25 miles away, at 5-15 P.M. He accounted for the delay by stating that the party went to the bungalow of the Sub-divisional Officer and remained there for about half an hour. The test identification in question was both of appellant Jamuna Singh and of Upendra Missir who had been arrested with him. Of the 12 identifying witnesses at this parade, Upendra Missir was identified by 8 witnesses and Jamuna Singh was identified by 10 witnesses. P.W. 9, Abdul Wahid said that he had seen Jamuna Singh standing by the side of the road with a gun, doing nothing. P.W. 12 Ramdhari Dusadh said that he identified him as having fired his gun on the Sub-Inspector. P.W. 13 Tunia Dusadh said that he identified him as having had a torch in one hand and a gun in the other. P.W. 14 Khusi Dusadh said that he identified him as holding a gun and simply standing with it. P.W. 15 Sukhdeva Dusadh said he identified him as having had a gun in one hand and a torch, which he was lighting, in the other. P.W. 16 Ramcharan Dusadh identified him as having had a gun in one hand and a torch, which he was lighting, in the other, P.W. 17 Chaudhuri Deohar said that he identified him as crossing the road with a gun. P.W. 20 Dhorhai Mallah identified him as having been in Andama with ten to fifteen men who were not doing anything. P.W. 21 Gobind Missir identified him as going south with a galteri in his hand, but no gun. The Magistrate made no note as to the connection with which P.W. 19 Jhingur Dusadh identified him. On 30th March 1945, the same 12 identifying witnesses, and also P.W. 8 Dil Mohammad, attended the test identification parade of the accused Suraj Narain Singh, the appellant Sardanand Jha and the appellant Lala Singh. On this occasion, only 3 of these identifying witnesses picked out any of the suspects, P.W. 19 identifying Sardanand Jha as one of the dacoits and Suraj Narain Singh as one of the dacoits he had seen at Berua-Andama, P.W. 13 identifying Sardanand Jha and Lala Singh as being amongst the dacoits who had guns etc. with them and P.W. 17 identifying Lala Singh as being among the dacoits. Even, allowing for the lapse of four months between the two test identifications, the contrast between the number of identifications effected by these witnesses at each parade and the details given by them thereat as to the connection in which they identified each suspect, is a striking one. No one of the three suspects at the latter parade was identified by more than two of the identifying witnesses and then only generally as having been seen amongst the dacoits, where as at the former parade 10 witnesses identified the appellant Jamuna Singh, and 8 of them purported to have noticed that Jamuna had a gun in his hand, whilst 3 of them said he also had a torch. The approver in his evidence said that Jamuna Singh only had a torch. The learned Sessions Judge in the course of his judgment said :

Even if the evidence of identification against Jamuna Singh be viewed with some suspicion on account of the apparent delay in proceeding from Madhubani to Darbhanga and the exceptionally large number of witnesses who were able to identify him in the test identification parade, there, remains one grim piece of evidence which directly connects this accused with the murder of S.I. Udit Narain Jha.

and the learned Judge went on to consider the finding of S.I. Udit Narain Jha''s revolver on the occasion of Jamuna Singh''s arrest and came to the conclusion that that fact afforded sufficient corroboration of the approver''s evidence to warrant the conviction of this appellant. No doubt the finding of this revorver in the room in which Jamuna Singh had previously been arrested is a fact which, in the absence of any acceptable explanation by Jamuna Singh, constitutes evidence pointing to his complicity in the attack upon S.I. Udit Naraiu Jha. But, in his examination under S. 342, Criminal P.C., Jamuna Singh was given no specific opportunity of explaining why the finding of the revolver should not give rise in the circumstances to the inference that he had been in the attacking party. The appellant Jamuna Singh''s examination under S. 342 consisted solely of the question, "Do you wish to make any statement", and the answer, "I will file a written statement". A written statement was, in fact, filed inter alia on behalf of this appellant, but it neither explained nor purported to explain'' why the evidence as to the finding of S.I. Udit Narain Jha''s revolver in the room in which Jamuna Singh had just previously been arrested should not be believed, nor why, if it was believed, the Court should not draw the inference therefrom that he was one of the attacking party. The learned Government Pleader contended that when, in answer to a general question under S. 342, Criminal P.C., an accused person says that he will file a written statement, the presiding Judge is excused from any further compliance with the provisions of S. 342, and that, in such a case, it is not in the interests of the accused person that any further examination under S. 342 should take place. In my opinion, these contentions betray an entire misconception of the purpose and scope of S. 342, Criminal P.C. The provisions of the Code of Criminal Procedure are designed, no doubt, to ensure that no innocent person should be wrongly convicted but, subject to that, they are designed to secure the conviction of a guilty person. A failure to give a guilty person the chance of explaining the evidence against him may often result to his advantage, but the failure to give an innocent person the chance of explaining the evidence against him can only result to his disadvantage. In this connection, I would quote from the judgment of Meredith J. in (cri. Appeals Nos. 684 and 687 of 1945, disposed of on 6-5-1946), in which case I also delivered a judgment dealing with this question, Meredith J. said:

There was no adequate examination under S. 342. Had the learned Judge told Dwarka that a written statement could he no real substitute for his own positive explanation in his own words, and had he put specific questions, it seems possible that Dwarka''s Story might have been put forward by himself in a form and in a manner which might have led to the learned Judge attributing considerably more weight to it. It is important that accused persons, and the lawyers defending them; should realise that a written statement drafted by the defence lawyer cannot possibly be regarded by the Court as more than a formal statement of the defence case drawn up by the defence lawyer for the convenience of the Court, and admitted only for that purpose, since the law nowhere provides for the admission of any written statement at sessions trials. On the other hand, a positive statement of his defence by the accused himself in his own words and his explanation of why the witnesses had given the evidence against him in his own words may well, if put forward convincingly and with assurance and the appearance of truth, carry very great weight with the Judge Therefore, it is not only desirable for the Court to give the accused a full opportunity of taking this course by putting specific questions, but it is desirable for the defence, when given that opportunity, to adopt it.

It is indeed obvious that an explanation given personally by an innocent person in his own words will always tend to carry a far greater conviction of its truth to the Court than any written statement drafted by his counsel, however lengthy and however ably expressed that statement may be, and S. 342 (1), Criminal P.C. is designed to ensure that every accused shall be given the opportunity of so explaining every vital point in the evidence against him. Section 342 (2), Criminal P.C., is designed to ensure that the Court may draw all proper inferences from the accused''s answers and refusals to answer, and the provisions of this sub-section are defeated by the mere substitution of a written, statement for the accused''s examination under S. 342 (1) since, the Court is nowhere authorised, and indeed, it would be at least comparatively unsafe, to draw inferences against an accused upon the basis of what his counsel has seen fit to include or to omit in the written statement. In my view, however, harmless in its inception may have been the practice of putting in a written statement on behalf of the accused as a kind of aide memoire for the benefit of the Court, when that practice grew, as it has grown, into a trial procedure alternative to that laid down by the Code of Criminal Procedure, it became entirely illegal; illegal, because the Code lays down a procedure which is to be exclusively followed, and, illegal, because the practice is, at any rate in part, specifically designed to avoid the procedure laid down by the Code. This does not mean that a failure properly to question an accused person under S. 342, Criminal P.C., necessarily vitiates a trial. The trial will only be vitiated if it is reasonably apparent either that the accused has been prejudiced by being deprived of his right under S. 312,(1) of giving his personal explanation upon some one or more specific and vital point in the evidence against him, or, that the Crown has been prejudiced by the fact that the Court has precluded itself from drawing an otherwise justifiable inference under S. 342 (2) by a failure to examine the accused upon the point. No doubt this latter case will be rare, but its possibility illustrates the full scope and purpose of S. 342, Criminal P.C.

It is true that there are three decisions of this Court, which, at first sight, may seem to lay down a contrary view to that which I have just expressed and particularly the judgment of Brough J. in 22 Pat 681, where the learned Judge, relying upon two previous decisions of this Court--4 pat. 231 and 4 Pat. 488, held, that an inference arising from certain statements and documents relied on by the Crown could be drawn against the accused in that case although neither the statements nor the documents were specifically put to them in their examination under S. 342, Criminal P.C. Brough J., after quoting from the judgments in the two cases above-mentioned, went on to say:

In my view the decision in 4 Pat. 231 is perfectly correct and one which we ought to follow. But I would go farther and say positively that when, as in this case, the accused having heard the evidence for the prosecution and on being questioned by the Court in compliance with the provisions of S. 342 in general terms indicates his intention of leaving his defence to his legal adviser by filing a written statement, the Court is neither bound nor entitled to question him further. Different considerations would arise if the accused were not legally represented or the Court thought for any reason that the accused or his legal adviser did not properly appreciate the case that had to be met. If the Court addresses any observations to the defence lawyers on this point it would be highly desirable to record such observations and the replies. In this case it is quite clear that the accused were represented throughout by competent lawyers who were fully capable of appreciating all the points that had been made and on whose advice the accused were relying. I hold, therefore, that the statements of Woodhouse and Satyanarayana made before the departmental enquiry and the other documents referred to are admissible and that the Crown is entitled to make use of their contents against each accused.

In 4 Pat. 231, in answer to a general question as to whether they would make statements, all the accused said, "No, I shall file a written statement," and thereupon a written statement was filed meeting the points put forward by the prosecution. The relevant part of the judgment of Adami J. in that case was as follows:

Now, experience shows that, when a written statement has been drawn up for an accused, he will commonly refuse to answer questions orally; he is very often instructed by his pleader not to answer questions; and where an accused has refused to answer questions and puts forward a written statement, it would be useless for the Magistrate to go on questioning him, knowing that the only reply he will get is a refusal to answer questions.

The learned Government advocate has shown that in the present case the written statement put forward by the petitioners covered all the points in the case. It is very difficult to lay down a rule as to the minimum number of questions which should be put to an accused. If numerous questions are put, there is generally an allegation that the Court has attempted to cross-examine the accused.

While Agreeing that it is the duty of the Magistrate to question the accused generally on the case, after the close of the prosecution, we are not prepared to hold that where the accused refuses to answer a question, the Magistrate is bound to go cm asking questions especially where a written statement is put in at the time meeting the points of the prosecution.

I can see no reason to hold that in the present case the trial has been vitiated by the fact that the Magistrate did not continue asking questions after the accused had refused to answer.

It is clear that the ratio decidendi in that case was that the accused had not been prejudiced by the failure to continue his examination after he had said that he would file a written statement. In the other case relied on by Brough J., 4 Pat. 488, the same question arose and it is important to note that there also the accused had filed a written statement which purported to explain all the circumstances in evidence against him. The ratio decidendi of the judgment of Mullick J. in that case is contained in the following passage:

The result is that in every case the test is whether there has been prejudice to the accused by reason of the absence of judicial questioning and whether the defect is cared by S. 537 of the Code.

I do not think, therefore, that the ratio decidendi of the judgment of Brough J. in 22 Pat. 81 can properly be understood as being more than that the accused in that case had not been prejudiced by reason of the failure to give them a specific opportunity of explaining why the inference arising against them from the statement and documents there in question should not be drawn. In so far as the judgment of Brough J. purported to lay down the wider proposition of law, quoted in the head note, namely

When an accused having heard the evidence for the prosecution and on being questioned by the Court in compliance with the provisions of S. 342, Criminal P.C., 1898, in general terms indicates his intention of leaving his defence to his legal adviser by filing a written statement, the Court is neither bound nor entitled to question him further

It was, I think, obiter to the actual decision. Even if it was not obiter, I cannot think that it is binding on this Court. The Code of Criminal Procedure lays down a form of criminal trial which is exclusive. It to not open to the Courts to lay down any alternative procedure. The decision, therefore, can only be binding on this Court in so far as it is expository or interpretative of the Code, but the laying down of a procedure alternative to that authorised by the Code cannot be either expository or interpretative of the Code itself. With the greatest possible respect to the learned Judges who were parties to that decision, I feel bound entirely to dissent from the wider proposition of law there laid down and also from the comparison with English Procedure to the disadvantage of the Code upon which it appears to be based. In my opinion, the provisions of S. 342, Criminal P.C., when properly applied, are not inferior and are fairer to the accused than the corresponding provisions of the law of England. In accused person if he wishes to explain the circumstances in evidence against him is faced with the dilemma that he must either subject himself to cross-examination or incur the prejudice in the eyes of the jury resulting from his election either to make a statement not upon oath or to say nothing. No doubt the prosecution are precluded from commenting on such election, hut every juryman knows the law in this respect and the prejudice is inevitable. In India, under the Code of Criminal Procedure, the accused by S. 342 (1) thereof, is given the chance of giving his explanation without subjecting himself to cross-examination. Indeed, Meredith J. in the course of his judgment in Death Ref. No. 44 of 1945, to which I was a party, stated his opinion that, in the conditions prevalent in India, S. 342, Criminal P.C., unduly favoured the accused and that, for this reason, the English procedure was preferable. In this connection, I very respectfully dissent from the proposition contained in the following passage of Brough J.''s judgment :

The position of the Court under S. 342 is very in vicious; if it fails to ask proper questions, no inference may be drawn against a prisoner from his failure to give a satisfactory explanation, which may result in the quashing of a conviction; if, on the other hand, the Court presses the witnesses too hard it is charged with cross-examining the accused which is equally not permitted.

At the close of the case for the prosecution if a prima facie case has been established, there are, save in an exceptionally complicated case, a small number of vital points in the evidence against the accused, and it is those vital points which the accused must be given a chance to explain. No question of cross-examination arises if the questions are put in the correct form. The accused''s attention is to be drawn not to the evidence in detail, but to its general purport so far as the vital point in question is concerned, and he should then be asked "Do you wish to explain why the Court should not believe this evidence" and then, if an inference is to be drawn there from, "Do you wish to explain why the Court should not infer from that evidence that so and so". If the explanation given omits to deal with some specific point in the evidence, the accused should be asked "Do you wish to give any further explanation of the evidence that.........". In my judgment in Death Ref. No. 44 of 1945 above cited, in which case, Meredith J. expressly concurred on the point, I laid down the tests by which a Court may properly judge whether any particular point should so be put to the accused in the course of his examination under S. 342, Criminal P.C.

If an accused person says he will file a written statement, the Court should explain that a written statement cannot take the place of his examination under S. 342, Criminal P.C., and should only desist from his examination if it is abundantly apparent that the accused will refuse to give any explanation of any point and if it has been made abundantly apparent to the accused that the Court will draw such inferences as may be just from his refusal to answer any question.

In this case it is not possible, in my opinion, to exclude the possibility that the appellant Jamuna Singh has been prejudiced by reason of the failure to give him a specific opportunity of explaining the two matters above referred to. He may or may not be able to give a satisfactory explanation. The possibility of prejudice is, therefore, obvious.

The learned Additional Sessions Judge has not stated whether he would have been prepared to rely solely upon the test identification of the appellant Jamuna Singh as sufficient corroboration of the approver''s evidence against him. I do not think that at this stage I ought to express any final opinion thereon. I have indicated the matters which prima facie appear to detract from its weight. Unless, at the retrial, the learned Additional Sessions Judge forms the opinion that it would not be safe to rely upon this test identification either as the sole corroboration of the approver''s evidence or in conjunction with any inference that the Court may draw from the circumstances in which S. I. Udit Narain Jha''s revolver was found, he should in the examination under S. 342, Criminal P.C., in addition to the other two vital points in evidence against this appellant, namely, the evidence of the approver and the finding of the revolver, also give Jamuna Singh an opportunity of explaining personally why the Court should not rely upon his identification at the test identification parade on 7-11-1944. The case against this appellant will, in view of the failure sufficiently to question him under S. 342, have to go back for re-trial as from that stage of the proceedings.

The case against Sardanand Jha is the evidence of the approver and his identification by Abdul Wahid (P.W. 9) and by Tunia Dusadh (P.W. 13). (His Lordship considered the evidence in this respect and then continued): In these circumstances it seems to me that the test identifications by [P.W. 9) Abdul Wahid and, particularly, that by (P.W. 13) Tunia Dusadh, afford ample corroboration of the approver''s evidence, and I am of opinion that the case against the appellant Sardanand Jha was proved beyond any reasonable doubt.

The case against Lala Singh was the evidence of the approver and his identification by Tunia Dusadha (P.W. 13) and Chaudhri Deohar (P.W. 17). (After considering the evidence his Lordship continued.) But having regard to the approver''s evidence and the evidence of Tunia Dusadh, both of which derive some support from the identification by Chaudhri Deohar, even though the appropriate question under S. 342, Criminal P.C., has not been put, I am of the opinion that the case against this appellant was established beyond any reasonable doubt.

In regard to sentence, as I have above indicated, I think that the appellants should be given the benefit of the doubt as to the alleged common object to kill the police, but as I have also above indicated, I am of opinion that all the members of the attacking party must be deemed to have known that death was a likely result of their common intention and that all of them were, therefore, guilty of murder under S. 302/149, Penal Code. The approver said that Lala Singh was not armed with a gun but that Sardanand Jha had a gun and that he had fired twice at the constables and chaukidars who were running away to the north. Baldeva Chaudhri, in his confession, which I think I am entitled to look at in regard to sentence in so far as it disclose anything in favour of the appellants, said that it was Deo Narain and Jamuna Singh who went off about 50 yards to the west where two shots were fired, and it seems probable that these two shots were responsible for the death of Kamala Dusadh, It appears, therefore, that neither Sardanand Jha nor Lala Singh were directly responsible for the death of either S.I. Udit Narain Jha or Chaukidar Kamala Dusadh. The persons who, according to the case of the prosecution, were directly responsible for these two murders, have been acquitted through lack of evidence. If they had been convicted and sentenced to death together with these appellants, I think that this Court would probably have distinguished between their acts and those of these two appellants and that in all probability the sentence of death upon these two appellants would have been commuted. There is the further element militating against the carrying out of the sentence of death upon these two appellants, that they have been implicated by the evidence of a person who had a greater motive, and since he was armed, had an equal opportunity for both these murders, and who, there were substantial grounds for believing, has successfully concealed the complicity of his brother Ramlochan Singh, the leader of the party. I am acutely conscious of the necessity of protecting the police in the performance of dangerous public duties and I have Considered with anxiety whether this necessity does not outweigh the factors above mentioned militating against the carrying out of the death sentence; but, after most careful thought, I find myself left with a repugnance to the confirmation of the death sentence upon these two appellants a repugnance, which I feel is based on fairplay and which would therefore, be shared by public opinion. To exact the death penalty against the force of a right thinking public opinion cannot but reflect upon the administration of criminal justice. I do not think that the fact of the acquittal of those directly responsible for these two murders should, in the particular circumstances of this case, operate to prevent the commutation of the death sentence which would, I think, have been granted if those directly responsible for the murders had been convicted and sentenced to death.

I would, therefore, discharge this reference, set aside the convictions of the appellants Jamuna Singh and Baldeva Chaudhri and directed that they be retried from the stage of the commencement of their respective examinations under S. 342, Criminal P.C. After such examination, the retrial will follow the usual course of a trial from that stage and as if the previous-trial had never been concluded. I would confirm the convictions of the appellants Sardanand Jha and Lala Singh and commute the sentence of death upon them to a sentence of transportation for life.

Ray, J.

I entirely agree with the order proposed by my learned brother. I have had the advantage of reading his judgment and I wish to add a few words, The four accused who are appellants in the aforesaid appeals are Sardanand Jha, Lal Singh, Baldeo Chaudhary and Jamuna Singh. The cases of Sardanand Jha and Lal Singh, as dealt with in the judgment of my learned brother, present no difficulty in law. The evidence of the approver, corroborated in such material particulars of the prosecution case as concerned and affected their case, affords sufficient proof of their guilt, and in view of the circumstances, set out in their proper bearing, amply justify commutation of their sentence from capital punishment to transportation for life, and I desire to add nothing to this part of my learned brother''s judgment. (After reviewing evidence his Lordship proceeded):

There has been a long controversy at the Bar with regard to the admissibility of Baldeo''s confession as such, and the point is worth while considering at some length. Before doing so, let me keep in view the respective contentions of the learned counsels appearing for the defence and the Crown respectively. The former contends that the provisions of S. 164, Criminal P.C., have not been strictly nor substantially complied with by the learned Magistrate recording the confession of Baldeo, and, therefore, it is inadmissible in evidence, or, in other words, it should not be taken into consideration at all, while the learned counsel for the Crown urges with equal force and sincerity that the provisions of the section have been substantially complied with at least to show that the accused''s confession was made voluntarily and not under threat or inducement, and urges that in this view of the matter even though the warning that the accused was not bound to make a statement etc. was not expressly, and in terms, addressed to the accused, such a warning is implicit in and inferable from the questions asked and explanations addressed by the Magistrate, and that, in the alternative, in view of the provisions of S. 29, Evidence Act, the absence of such a warning will not vitiate the confession so as to make it irrelevant for the purpose of the trial, question of weight to be attached to the confession being quite apart.

In my judgment, the contention of the learned counsel for the defence must prevail and for the following reasons. Confessions which form a species of the genus of admissions are dealt with, in the matter of their relevancy, in Ss. 24 to 30. These sections fall within the part of the Indian Evidence Act dealing with admissions. They, therefore, suffer from lack of relevancy like other admissions as evidence in favour of the person who makes them. Like admissions they are, however, admissible against the person who makes them. As in the case of admissions in civil suits, so in the case of confessions in criminal proceedings, there have been certain defined circumstances in the sections above referred to, which would make confessions inadmissible even as against the person making them. One of such sections is S. 24 which provides that if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, the confession is irrelevant in a criminal proceeding. Section 25 rules out confessions made to a police officer irrespective of either the presence, or absence of any of the circumstances referred in S. 24. Section 26 disqualifies any confession made by asp accused while he is in police custody unless in the immediate presence of a Magistrate. It will appear that S. 24 deals with confession at large, while the following two sections have reference to confessions made either to a police officer or to anybody other than a Magistrate while the maker is in the custody of a police-officer. The obvious policy behind the enactment of the later two sections is to make it a rule of law that any confession made to a police officer or to anybody other than a Magistrate while in the custody of a police-officer shall suffer from irrebuttable presumption of being considered to possess the character of a confession made under circumstances enumerated in S. 24, and would, therefore, be irrelevant. The only exception that the Legislature provides in favour of confessions made to police-officers is contained in S. 27 where its truth is ensured by discovery made in consequence of the confessional information, the admissibility being limited to the extent of the fact discovered. The provisions of S. 23 are in a sense exegetical of the preceding sections as the section by providing in the form of a substantive enactment that "If such a confession as is referred to in 8. 24 is made after the impression caused by any such (as is referred to in S. 24) inducement, threat or promise has in the opinion of the Court, (before whom it is sought into evidence) been fully removed, it is relevant" explains the necessity of Ss. 25 to 27. The Court, therefore, is the ultimate arbiter of the existence or otherwise of the vitiating circumstances such as (1) whether the confession is extracted under inducement, threat or promise by or from a person in authority; (2) whether it was made to the police; (3) whether it was made by the man who was in police custody, the latter two being circumstances in which inducement, threat or promise are implicit by rule of law and (4) whether the confessional statement led to discovery of any fact relevant to the maker''s guilt or it was made after the impression caused by inducement, promise or threat is fully removed. The procedure prescribed in the Criminal Procedure Code for recording a confession with a view to render the same admissible in evidence, against the accused in relation to the charge has, for its end, to secure freedom from the vitiating circumstances and ensure application of S. 28, Evidence Act. The compliance with the procedure, therefore, has reference to its admissibility even though nothing express is found in S. 164, Criminal P.C., as referring thereto. Section 29 in the context of the fascicle of sections dealing with admissibility of confessions as such must be interpreted in a way which is neither repugnant to nor inconsistent with the provisions of its preceding sections. In my judgment, the key to its interpretation is furnished by its opening words, namely, "If such a confession is otherwise relevant," One has, therefore, to find out what do these words connote. To confine one''s attention to the words "such a confession," they may mean confession made by an accused person either under circumstances referred to in S. 24 or S. 25 or S. 26 or S. 27. The acceptance or rejection of either of the meanings aforesaid will necessarily conduce to different interpretation being attributed to the section as a whole, and this difference may be put aside for the time being. In this connection it may be noted that S. 28 also opens with similar words, namely, "If such a confession" but the latter are succeeded by the words "as is referred to in S. 24" which words are absent in S. 29. This may lead one to think that the confession referred to in both the sections is the same, and it is for the sake of brevity, that the words "as is referred to in S. 24 are omitted from S. 29. If this be so, that also will have an important bearing on the meaning to be assigned to S. 29. For the time being I shall not halt over the different readings indicated above, and shall assume that the words in their widest sense would mean ''confessions made by an accused person''.

Then turn to the phrase "otherwise relevant". This to my mind, may always convey as one of its meanings, "relevant otherwise than as a confession". One has to bear in mind if that phrase can be replaced, without involving a change in the meaning, by the phrase "not otherwise irrelevant". The Legislature in using the word "relevant" in affirmative form instead of in the negative, that is "not irrelevant" in this setting (as it is in S. 29) must be taken to have in its mind circumstances leading to relevancy rather than irrelevancy,. Such circumstances must be contained in the previous Ss. 24 to 28. Section 29, therefore, without being read referentially in the form in which it has been enacted may be enlarged as follows: If a confession made by an accused person is relevant otherwise than as suggested in the preceding sections (meaning thereby not irrelevant on account of circumstances other than the removal or accrual of, as the case may be, of circumstances that would have made it inadmissible according to the preceding sections) it does not become irrelevant merely because.........This would mean, for example that if a confession is relevant not because the impression caused by any inducement, threat or promise has been fully removed, as contemplated in S. 28 or that it is made in the immediate presence of a Magistrate as in S. 26 or because it leads to discovery of a fact as in 8. 27 but otherwise, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception, or when he was drunk, or because it was made in answer to incriminating questions, or because he was not warned etc. In this view of the matter, S. 29 shall be taken to cover the field of confessions other than those dealt with in its preceding sections, or in other words, extra-judicial confessions. In my judgment, any other view, as to the meaning of the section, would lead to repugnancy between it and the preceding sections and may, in certain conditions of things, lead to absurdity. I shall now proceed to illustrate the position just indicated. Suppose an accused makes a confession under a promise of secrecy proceeding from the recording Magistrate that his confession will be kept a secret while every effort has been made by him to remove the impression caused by threat, promise or inducement and he has not told the accused that he was not bound to make a confession and that his confession if made shall be used in evidence against him. On the other hand, this amounts to saying, at least, that it will not be used as evidence against him in Court. Section 29, Evidence Act, would not make it irrelevant. But is it not shocking to common sense that it should be so ? Does it not offend against the principles of law underlying S. 24 of the Act? Similarly, when an accused is given to understand that the law is that any confession made by him would be used against his co-accused but not against him, and that the accused who confesses is more often than not given some concession in the matter of punishment; the person who gives him to understand this is a person in authority and he refrains from promising or inducing him; a confession made under such circumstances is certainly a confession made in consequence of a deception within the meaning of S. 29 practiced on the accused person for the purpose of obtaining it, and this deception from a person in authority is hardly distinguishable from an inducement within the meaning of S. 24, Evidence Act, which does not mention "deception" as one of invalidating circumstances. The result, therefore, will be that a confession, the making of which is caused by a promise of secrecy or deception of the above description from any body including a person in authority within the meaning of S. 29, Evidence Act, is not irrelevant because of such promise or deception but the promise or deception, viewed as a promise or inducement within the meaning of S. 21 makes the confession irrelevant. This absurdity or repugnancy can be avoided only if S. 29 is construed not so as to cover the field already occupied by Ss. 24 to 23 of the Act. Section 29, therefore, must refer to such confessions only as are not governed by or contemplated in the preceding sections, that is to say, confessions made not to Magistrates or police officers or to persons in authority having some relation to the charge against him. According to me the inconsistency, in application of S. 29 to the occasion just referred to, lies in the fact that at least some of the circumstances, if not all, enumerated in S. 29 are, in certain state of things identical with circumstances contemplated in S. 24, and that the existence of identical factors operate contrarily upon the same field of operation a result never compatible nor consistent. Similarly where address of a word of caution, referred to in the last part of S. 24, is needed to make the confession voluntary, or to remove the impressions referred to in S. 28, S. 29 granting its full operation, in relation to confessions at large, will land in repugnancy.

The rules of evidence contained in Ss. 24 to 29 are based on certain rules of procedure adopted in English jurisprudence for excluding involuntary confessions. The said system of jurisprudence divides them into two different classes as is explained by Mr. Chamberlain. He, in his Law of Evidence, says :

The rule of procedure which rejects so called involuntary confessions induced by threats and promises by those in authority is based entirely upon an assumed ground of public policy. In reality like other rules of procedure it is practically an instance of substantive law controlling the normal exercise of the function of the judicial administration. As at present Conducted it proceeds upon no sense of fairness to the prisoner and even as has been suggested frequently operates against him by substituting private irresponsible investigation for responsible official enquiry. The rule assumes that those in authority over legal criminal proceedings ought, in the public interest, to refrain from placing pressure upon the free will of their prisoners. What injury he may suffer at the hands of private persons is none of its concern. So long as the accused is not influenced by a person in authority in certain specified ways, he may be deceived, flattered, whittled, tricked betrayed, into a perfectly admissible confession. If the procurer of the confession be not actually a person in authority be may offer any benefit or threaten any injury he sees fit in connection with the proceedings.

The English system of criminal law very jealously guards against any sort of pressure either direct or indirect being put upon the accused by one in authority. Earle C.J. in (1852) 6 Cox. C.C. 388 rejected an answer (confessional) given by the prisoner to question put to him by a Magistrate. It was so done in 1 Beng. L.R. (Cri.) 15. In (1903) 20 cox. C.C. 711 it was held :

If there is reason to think that the confession was induced by the pressure of questions by one in authority, it should be rejected.

In (1894) 18 Cox. C.C. 54 Hawkins J. said that it was impossible to discover the facts of a crime without asking question as he held that the questions there were properly put after due warning. He admitted evidence of defendant''s answers saying that every case must be decided according, to me whole of the circumstances.

The aforesaid cases would indicate that the tendency of the English law was always to safeguard the position of the accused against being made to make a confession by any official act of a person in authority. Even mere questioning for the purpose of getting at the truth by such a person was viewed with disfavour though the rule was not without a break here and a break there by some Judges in some cases. Under the circumstances, it would be rather extravagant to conceive that the framer of the Indian Evidence Act should on the one hand jealously guard against official pressure upon or interference with the accused by person in authority for the purpose of extracting a confession and will, on the other hand, open floodgate to such interference by them in the various shapes of promise of secrecy, deception, drunkenness, questioning without warning, etc. The co-existence of provisions of S. 29, with those of its preceding sections can only be explained by the hypothesis that the rule of law promulgated in S. 29 had reference to confessions made under circumstances very different from those contemplated in the preceding sections. It will not be far from correct to say that the confessions made by an accused to a Magistrate during investigation is not one, the relevancy of which is governed by S. 29 of the Act. However loose might have been the practice that existed with regard to administration of caution before questioning an accused by a person in authority for obtaining information with regard to his guilt, it was set at rest by the passing of the Indictable Offences Act 1848, S. 18. Wigmore in his Law of Evidence, Art. 842, observes:

It will be noted that in the cases confirming the orthodox doctrine of which R.V. Alice and R.V. Chilham are most frequently cited, some of the confessions received were under a caution and some were made without questions preceding, but neither of these circumstances seems to have been treated as essential to their reception before the passing of the Statute. In 1849 the Indictable Offences Act, S. 18, was passed which revised the method of conducting such examination, That Statute required two cautions to be given. Of the two cautions required to be given under the Statute, the first one was intended to warn the accused that he was not bound to say anything in answer to the charge, and that if be said anything, it would be used as evidence against him, and the second one was intended to dispel from accused''s mind any hope of favour or any fear of prejudice in relation to the charge. Of the two, much greater importance used to be attached to the caution '' first referred to in S. 164, Criminal P.C. Archbold''s Criminal Pleading, Evidence and Practice at p. 396--. Under Indictable Offences Act, it was held that the second caution was not strictly necessary unless it appeared that some inducement or threat had previously been held out to the accused but that it was always prudent to give it. The form (N) of the prisoner''s statement before a Magistrate contained the first caution, but not the second.

The Statute, Indictable Offences Act, S. (sic) was replaced by Criminal Justice Act, 1925, S. (sic). Of the several sub-sections of this section, sub-Ss. (2) and (3) can be prayed in aid to throw some light on the subject under discussion. Sub-section (2) requires the examining Justices to address to the accused the following words or words of the like effect:

Do you wish to say anything in answer to the charge ? You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial

Sub-section (3) provides :

Before the accused makes any statement in Answer to the charge, the examining Justices shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been held oat to him to induce him to make any admission or confession of his guilt, but that whatsoever he then says may be given in evidence on his trial notwithstanding the promise or threat.

and sub-s. (6) provided :

Nothing contained in this section shall prevent the prosecutor in any case from giving in evidence at the trial any admission or confession or other statement of the accused made at any time which is by law admissible as evidence against the accused.

A careful perusal of these sub-sections would sufficiently indicate that statements made by an accused by way of Confession to the examining Justices or to a Magistrate were required to be preceded by the two different cautions while, according to sub-s. (6) any admission or confession or other statement of the accused made at any other time without any warning could be admitted. This also reinforces the theory that statements of the accused to the persons in authority in relation to the charge were treated in a different manner from admissions or confessions made to any other person or at any other time. With this background of the English law on the subject, it is not at all difficult to appreciate the respective fields of operation of S. 29, on the one hand, and Ss. 24 to 28, on the other. Sub-section (6) of S. 12, Criminal Justice Act, bears an analogy to S. 29, in its contrast with the preceding sections, particularly S. 24.

The point can be viewed from another angle of vision. Under the English Common Law examination of a prisoner taken upon oath before Justices respecting a criminal charge was not admissible at some stage of development of the law of evidence in criminal cases. It was thought desirable to give the accused an option to give evidence on his own behalf. It was provided in S. 12, sub-s. (2), Criminal Justice Act, 1925, that after the charge was read over and explained to the accused, he should be informed about his right to call witnesses and "if he so desires to give evidence on his own behalf." After so doing, the examining Justices shall then address to him the words of caution that he was not obliged to say anything unless he desired to do so, and that whatever is said would be taken down in writing and might be given in evidence upon his trial. The Indian criminal law is rather stricter in this respect as here the accused has not even the option of examining himself as a witness on his own behalf thereby subjecting himself to cross-examination by his opponent in the trial. But he is afforded an opportunity to say anything he likes in answer to the charge as in done in his examination under S. 342, Criminal P.C. But there also he cannot be compelled to say if he did not so desire. In other words, he has a right of election. He may elect to make a statement in answer to the charge or he may not. It is fundamentally wrong to say that there can be election until there is knowledge of the right to elect. This doctrine finds support in such cases as (1904) 2 K.B. 628, (1926) 2 K.B. 380. The origin of addressing the accused words of warning thereby intimating to him the knowledge of his right of election is referable to the aforesaid doctrine which is as old as law. This may not apply and probably does not apply when a person other than a person in authority questions him in relation to the charge against the accused for information about his connection with the subject-matter of the charge. But it would fee highly repugnant to the very foundation of the system of criminal jurisprudence in which the accused is privileged not to speak anything in relation to the charge against him if he does not so desire, to hold that when he has to make a statement in relation to the charge, he should not be informed that he has his right of election. Approached from this standpoint, it appears quite clear to me that it cannot be the intention of the Legislature in enacting S. 29, Evidence Act, that the confession of an accused made before, and recorded by a Magistrate acting in his judicial capacity, should be taken to have been made by him, in voluntary exercise of his right of election to make a statement, without being told that he has such right, and that he could with immunity refrain from speaking anything if he so desired. The provision contained in S. (sic) must, therefore, be construed to have reference to a state of things different from the one under consideration.

In my view there is still another approach to the question. If the Legislature intended S. 29, to be a general provision applicable to confessions at large, the purpose could have been well served or rather better served by not enacting it, because confessions like admissions are relevant against the person who has made it in the absence of circumstances delimiting their admissibility and if Ss. 24 to 29 stood alone, at should have meant that the respective circumstances prescribed therein were the only ones which could detract from relevancy of confessions, and that they under any other circumstance whatsoever would be admissible, In my judgment, S. 29 was meant to dispel doubts with regard to extra-judicial confessions made under circumstances similar to those which make judicial confessions inadmissible and with respect to confessions relevant otherwise than as confessions; for example, as admissions under conditions not requiring proof of guilt.

Section 164, Criminal P.C., as I have already observed, assigns a jurisdiction to a Magistrate to record statements of witnesses and confessions of accused, if made to him, in course of an investigation or at any time before the commencement of the enquiry or trial. Before recording confessions, certain duties are cast upon the Magistrate in order to ensure their admissibility under the Indian Evidence Act. As already shown, the admissibility is conditional upon removal of impressions upon the accused caused by any such inducement, threat or promise as is referred to in S. 24, Evidence Act, and other police influences. Sections 25 and 26 justify their existence in the Evidence Act on the ground that so long as an accused 13 in the custody or under the control of the police, his confessional statement is to be conclusively presumed to have proceeded from such inducement, threat or promise. The Magistrate''s duties as enumerated in S. 164, sub-s. (3) are co-related to the circumstances dealt with in Ss. 24 to 28. The Magistrate has, therefore, first of all, to bring it home to the accused that he is completely out of control of the police and then to proceed to make enquiries, put questions and explain matters to him so as to make it clear that the confession is a spontaneous act of the accused made at a time when be has freed himself from any impressions '' created upon him that he was bound to make a confession or that if he made confession he would derive any benefit there from or avoid any evil thereby in respect of the charge which he has to answer. Our law reports abound in cases where confessions recorded by Magistrates at a time when, and at a place from where the accused could see a policeman or officer in whose custody he was brought or through whose custody he might be remanded to jail after the recording was over, art inadmissible; and if I may say so with respect, these decisions are perfectly right.

There is a school of thought that addressing a warning to the effect that the accused is not bound to make a confession, and that, if he does so, it may be used as evidence against him is a mere surplus-age. Whether it is 30 will depend upon whether or not such a warning, if given would produce an effect upon or bring about a change in his decision to make a confession or not. It is some times thought that such a warning is not necessary to remove such impressions as are referred to in S. 28, Evidence Act. Let us take an example to appreciate the distination, Suppose an accused while in custody has been told by a police officer that under the law he is bound to make a statement and a true statement, or otherwise is under the impression that when he is produced before a Magistrate, he must make a true statement. If an accused while in this state of mind, or under the influence of an impression of the like nature makes a confession, it cannot be said that it is voluntary. As I have indicated above, under the British system of jurisprudence which has been adopted in India, it is a long established rule that the accused is priviledged from making any statement, however true, in relation to a charge against him. He has a right of election in this matter. This warning, therefore, in my view, has reference to voluntary character of the confession. I have shown above that in the English criminal law the warning corresponding to the one contained in the first part of sub-s. (3) of S. 164, Criminal P.C. was considered more imperative in nature than the other questions referred to in second part of the sub section. It cannot, therefore, be urged with any amount of reasonableness that this warning is a mere superfluity and its non-address leaves the confessions unaffected as if it was not incorporated in the statute book. Its imperative character can be easily ascertained from the fact that it is not only incorporated as part of sub.s. (3) but the Magistrate is made to sign a memorandum at the foot of the record of the accused''s confession to the effect that he has addressed this warning to the accused. The Magistrate is rather free in putting such questions and making such enquiries as he considers fit to ascertain the voluntary character of the confession. With regard to that part of his duty, he has simply to say in the memorandum that "I believe that this confession was voluntarily made"; but with regard to the first warning or caution he has to say expressly, in terms, that he has explained to the accused that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him. This incorporation in the memorandum bears, an analogy to Form (N) prevalent in England at a time when S. 18, Indictable Offences Act, was in operation and the judicial interpretation that the first caution (as it is there called) was much more important than the other one flowed from it.

It has further to be borne in mind that the portion of sub-s. (3) of S. 164 which provides for the yarning in question is the result of an amendment at a time when S. 29 had already been enacted, and stood in the statute book for near about half a century. If the amendment was thought to be a merely directory one, the Legislature should not have used the word "shall" and thereby introduced a difficulty in its application. Sub-section (1) of S. 164 contains the word ''may''; sub-s. (2) expresses mandatory character by using the word ''shall'' as to the manner of recording of statements and confessions as the case may be ; then follows sub.s. (3) which again uses the word ''shall''. ''Shall'' in this context cannot be reduced to ''may''. An emphasis is sought to be laid by its incorporation in the memorandum already observed. I had to establish before that S. 161 is meant to give the status of relevancy to a confession by freeing it from circumstances which, if it existed, would make it inadmissible. If we omit S. 164 from the statute book, we are left with no machinery for securing the admissibility of the judicial confessions except at the enquiry or trial, as the case may be, where the accused is given an opportunity to explain the charge against him under S. 342. If he makes a statement to a Magistrate while in police custody under S. 26, Evidence Act, it may be ruled out as inadmissible as having been made at a time when he might still be labouring under the impressions referred to in S. 28, Evidence Act. The procedural law, therefore, has provided a machinery for recording of confessions by Magistrates and has made it obligatory upon the Magistrates to caution the accused intimating to him his option in the matter and also intimating to him the consequences that he might Buffer if he exercised his option one way or other, and lastly, to assure him that any hope of favour or fear of prejudice on his part were futile, and that he would be free since then from the domination of such persons who might, in all probability, have created such hopes or fears. The section, therefore, is very intimately connected with the question of relevancy and every duty cast on the Magistrate in sub-s. (3) of S. 164 is imperative.

In case it is held that the field of operation of S. 29 is identical with the field of operation of S. 164, Criminal P.C., in the sense that both are applicable to confessions recorded by a Magistrate in course of investigation or at any time prior to the commencement of the trial, the doctrine that a later Act when contrary in matter, quality and form repeals the former Act will apply. Pursuant to this doctrine, it will be held that so much of S. 29, Evidence Act, as is inconsistent with S. 164, Criminal P.C., must be taken to have been abrogated by implication. Such implied abregation or repeal can be avoided only when the prior and subsequent legislation can stand together. It is no reconciliation of the two apparently contradictory provisions by making one nugatory except by the method of implied repeal. The subsequent legislation cannot be impliedly repealed because that must be taken to have been done with knowledge of the previous legislation to the contrary effect. The two sections can be fully reconciled, by each of them being given effect to, according to their tenor, in the view that I have taken of what the correct interpretation of S. 29 would be. Any other mode of reconciliation by making the pro visions of the first part of S. 164(3) merely directory is in substance a repeal of that part; this is contrary to all canons of construction of statutes. In my view, therefore, address of the warning contained in the first part of sub-s. (3) of S. 164, is compulsory and S. 29, Evidence Act, must either be taken so far as it conflicts with this mandatory provisions of the Criminal Procedure Code to have been impliedly repealed or must be taken, in its operation, never to have occupied the field that is occupied by sub-s. (3) of S. 164.

I am not unaware of several decisions of the Indian Courts that apparently hold a view somewhat different from what I have done here in this case. They are Emperor Vs. Nanua, . I have examined these cases myself and I find that in all those cases there are no discussions on the subject but in a summary manner the position has been assumed to be that S. 29 decides the question of relevancy in all such cases of conflict. In one of the cases it has been said that the Indian Evidence Act deals with admissibility while the Criminal Procedure Code does not and that S. 164, Criminal P.C., is not in chap. 41 of 4th Code which deals with special rules of evidence.'' The sections in that Chapter also do not deal with the question of admissibility but they simply provide mode of proof of certain records. I have given my reasons why I hold that S. 164 is intimately connected with the question of admissibility of judicial confessions by which I mean confession recorded by a Magistrate and I need not repeat the same. That compliance with the provisions of S. 164 affects the admissibility of the Magistrate''s record of confession is now settled beyond all controversy. A short shrift of the problem can be made by another very simple method which is this. Section 164 provides that confession made by an accused to a Magistrate before commencement of trial shall be recorded in writing. Section 91, Evidence Act, provides that when a matter is required by law to be in writing, the writing alone and nothing else can be adduced in proof of that matter. The record of the Magistrate is, therefore, the only evidence of the confession. If that record has not been duly made in accordance with the law that provides the manner and conditions for its recording it is deemed to be no record at all. Hence, it is not admissible. Section 533, Criminal P.C., does not cause any defect unless the confession is duly recorded. It only affords facility for parol evidence of due recording.

My view gets support from the trend of certain authorities which I shall briefly review in the following paragraph. In Queen-Empress Vs. Bhairab Chunder Chuckerbutty a confession not recorded in accordance with the requirements of Ss. 164 and 364 of the Code was sought to be admitted into evidence against the accused as an admission under S. 21, Evidence Act. Maclean. C. J., observed:

To revert for a moment to the law of England upon this point from which in a great measure the law of India derives its source any such statement, to be admissible against an accused, must be free and voluntry, and this principle appears to me to find expression, in substance, in Ss. 21, 24, 25 and 26, Evidence Act, coupled with S. 164, Criminal P.C., though Ss. 25 and 26, Evidence Act, are apparently peculiar to this country, and the safeguards in India, in favour of the accused, are, in some sense, more pronounced than in England. In my opinion the Code, only allows confessions to be recorded against the accused, if the primary requirement--as the primary requirement under English law--be complied with, viz., that it was Voluntary. That is clear from S. 164, Criminal P.C. ... As regards the argument, based on S. 21, Evidence Act, that section must, in my opinion, be road with Ss. 24, 25 and 26 of the game Act, and Ss. 164 and 364, Criminal P.C.

Banerjee J. at p. 714 of the report observed: "that the statements in question are inadmissible in evidence, S. 21, Evidence Act, being controlled by Ss. 154 and 364, Criminal P.C." I should pause here and observe that there is no reason why S. 29 should not be controlled by Ss. 164 and 864 of the Code. The learned Judges can be taken to have inferentially held that S. 29 had nothing to do with confession before a Magistrate. It is remarkable that this decision was strongly approved by the Judicial Committee in 63 I.A. 372.

In 50 Bom. 111 at. p. 116 while dealing with a conflict between S. 164 of the Code and S. 29, Evidence Act, the Court observed :

But that is a special enactment applying only to certain statements made in the particular circumstances contemplated by this S. 164. It cannot override the general provisions of S. 29, Evidence Act, except where those circumstances bring the section into operation.

This authority though apparently against my view is not really so because, my conclusion is that under the circumstances which bring S. 164 into operation, S. 29 has no effect. The decision of the Bombay Court is to the same effect. It is far from holding that S. 29 of the Act overrides S. 164 of the Code. Section 164 deals with special cases which, according to the well-known canon of construction, should be viewed as an exception to the general provisions in S. 29, Evidence Act, if and where they collided.

In 56 Mad. 63 at p. 67 an accused examined as a witness made certain statements which turned out to be a confession in a subsequent criminal proceeding. It was held that it was admissible under S. 29 even though the procedure of S. 164 was not valid. This view does not at all conflict with the view I take. This is a case where a confession was not made as a confession. This ease comes within my view that the section deals with confessions which are relevant otherwise than as confessions.

The case in 55 Mad. 711 is directly in point but contains no discussion whatsoever. 31 ALL. 592 is not in point as it deals with S. 27, Evidence Act, which never comes in conflict with any provisions of Criminal Procedure Code. With regard to the imperative character of the injunctions contained in S. 164, sub-s. (3), Criminal P.C., I need only quote a passage or two from a decision of this Court reported in 12 Pat. 301.

On the explicit terms of section 164, Criminal P.C., the confession (Ex. A) is inadmissible in evidence. In 6 Lah. 183 it was held that the provisions of S. 164 (3), Criminal P.C., as amended, render it incumbent upon the Magistrate who is'' called upon to record a confession, to explain to the person who is to make it (a) that ho is not bound to make a confession at all; and (b) that if ho does so, it may be used as evidence against him; and further (c) the Magistrate should record the confession only if upon examination of the person making it he has reason to believe that it will be made voluntarily.

In the same case in answer to a contention that if the confession is not recorded under S. 164 it might be proved against the accused under Ss. 17, 21, 24 and 26, Evidence Act. To this Meredith J. observed as follows:

The answer to this is that the Privy Council in 63 I.A. 372 has considered this very question and has said ''No.'' In view of that decision it must be held that, though an extra-judicial confession to any ordinary person (other than a police officer) can be proved, such a confession cannot be proved at all if made to a Magistrate unless the provisions of S. 164, Criminal P.C., have been complied with; and it will not help, in view of that decision, for a Magistrate to say that he did not purport to act trader the provisions of S. 164.

The effect of non-compliance with the above sections came for consideration in AIR 1936 253 (Privy Council) . Lord Roche in delivering the judgment of the Privy Council observed:

Upon the argument of the appeal the attention of the Board was rightly directed to a considerable number of decisions in the Courts of India dealing with the same or similar points arising upon the same statute or upon earlier statutes of much the same tenour. In the course of the judgments in these cases the various considerations on both sides have been presented and dealt with, so that their Lordships are not without information as to the views of Judges in India on the subject . . . The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts-- (1876) 1 Ch. D. 426 at p. 431--and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to S. 164 . . . Upon the construction adopted by the Crown, the only effect of S. 164 is to allow evidence to be put in a form in which it can prove itself under Ss. 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Ss. 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of S. 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. ... Their Lordships are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.

It has been argued at the bar that this decision does not take notice of S. 29, Evidence Act. Before giving effect to this contention, the assertion of their Lordships contained in the earlier portion of the passages quoted above to the effect "that their Lordships ate not without information as to the views of Judges in India on the subject" has to be given its due weight. Another circumstance which detracts from the force of this argument is that besides Lord Roche, the other members of the Committee were Sir John Wallis, ex-Chief Justice of the Madras High Court, Sir Lancelot Sander son, ex-Chief Justice of the Calcutta High Court, Sir Shadi Lal, ex-Chief Justice of the Lahore High Court and Sir George Rankin, ex-Chief Justice of the Calcutta High Court. In their discussions in the judgment their Lordships have addressed themselves to the question of admissibility and have overruled expressly the contention of the Crown that the object behind enactment of S. 164 was simply to bring the statement of confession of an accused into a particular form acceptable within the four corners of Ss. 74 and 80, Evidence Act.

Since the decision of the Privy Council above referred to, it has been considered in India that compliance with the provisions of S. 164 goes to the root of the Magistrate''s jurisdiction to record a statement. Non-compliance, therefore, amounts to looking at the record of confession as one which has been done "not at all," (to use the language of their Lordships of the Privy Council). If there is no record of confession at all, then there is no evidence of confession. That is how the matter stands, call it a rule of admissibility or not as you like. It would be flying in the face of the authority of the decision of the Judicial Committee to take any other view of non-compliance of the provisions of S. 164, Criminal P.C. The presumption of S. 80, Evidence Act, does not arise unless the statement is recorded in accordance with law, that is, in the manner prescribed in S. 164 (3) of the Code.

Now, turning to the manner of the record of Baldeo''s confession, I have no hesitation in holding that it shows a flagrant breach and contravention of sub-s. (3) of S. 164 of the Code. I summarise my reasons in a few words and do not propose to deal with them at length, as they have been so done in the judgment of my learned brother, from whose view, however, I regret that I have to differ in certain respects though we both agree that in this particular case the confession of Balder? is not admissible in evidence inasmuch as it comes within the mischief of S. 24, Evidence Act. My reasons are : He has not addressed the warning contained in first part of sub-s. (3) of S. 164. That the questions and explanations, such as (1) why do you want to make a statement; (2) your statement may be used in evidence against you; and (3) think over the matter again, may impliedly convey to the accused that he was not bound to make a statement, does not amount to compliance with the mandatory provision of law, because an accused having the notion that he is obliged to make a statement will not thereby be at all relieved of that notion. The time for reflection and the query as to the motive to make a statement may set him thinking as to what statement he should make. As long as he is under the impression that he is bound to make a statement, he may think it risky to make false statement and may thereby be compelled to make a confession. But the policy of the law is that the accused will not even be bound to speak the truth in support of his own accusation. I do not appreciate how this principle of law be obeyed without making it plain to him that he is at liberty either to make or not to make a confession. Further, the Magistrate made a perfunctory enquiry as to the whereabouts of the accused since his arrest till he was brought before him. Had he done so, he should have come to know from the answers of the accused that he was for a month in police custody and that he had been taken out from jail on the preceding day for the purpose of being produced before him for recording his confession but was never produced. These circumstances were very much necessary to be known so that the Magistrate could have taken steps appropriate to removal of a long-standing influence of the police on the accused. In none of his explanations he has given the accused to understand that he should not be under any impression of either hope of favour or fear of prejudice. In his evidence in Court he says that lay repeated warning he meant repetition of the same set of questions several times. His examination of Baldeo can be contrasted with the examination of Kapileshwar only to convince that the learned Magistrate has fought shy of putting appropriate questions boldly and pointedly. It appears that he has not even cared to ascertain where the offence was committed, He has not even cared to state correctly in his record where the accused made his confession, whether in his Court or in any other place. Until his examination in Court, we do not know that the accused was taken to his bungalow. His statement should have been recorded in open Court ft not otherwise impossible. This is violation of general circular order of this Court. One of his vital questions, namely, "Are you making statement not at the instigation and pressure by any one?" is in a leading form showing as if the Magistrate assumes that there was no such pressure. On the contrary, the law requires that he should be searching in his examination to ascertain, if it is so, and should be assuring and encouraging in his explanation to nullify the effect of any such pressure or instigation. There is nothing of the kind. To use the Magistrate''s own words in cross-examination, he filled up the columns as a matter of routine. He, therefore, violated the law and thereby injured the cause of justice. In this connection I will do no more than quote a few passages from the judgment of that eminent Judge, Mukherji J. in AIR 1925 Cal. 58725 in which he says :

The Honorary Presidency Magistrates, I take it would undoubtedly not have recorded the confessions unless they considered them as being voluntarily made; but my duty is to investigate into the circumstances in order to ascertain whether the confessions were voluntary. In order to ensure the voluntariness of a confession the questioning of the accused before he makes the confession forms a factor, the importance of which can seldom be overestimated. It has been enjoined in decisions of which the number is legion that the Magistrate must question the accused with a view of discovering whether the prisoner confesses voluntarily, and this questioning must be in pursuance of a real endeavour to find out the object of it, the requirement not being satisfied by putting a few formal questions.

The learned Judge in that particular case has examined the nature of the questions put by the Magistrate and his explanation addressed to the accused and applying the same standard of examination to the matter in hand, I have no hesitation in holding that the learned Magistrate has not complied with the provisions of law. I should, therefore, rule out the confession on the ground of non-compliance with the mandatory provisions of S. 164, Criminal P.C., and should therefore hold that it falls within the mischief of S. 24, Evidence Act. Had the provisions of S. 164 (3), Criminal P.C., been duly and fully complied with, there should be in my view, no room for such well-conjectured suspicion as is referred to in S. 24, Evidence Act. The due compliance would bring about the condition of removal of impressions within the meaning of S. 28, Evidence Act.

Ruling out this evidence, however, does not dispose of Baldeo''s case. The approver has named him as one of the culprits and he has been identified by P.W. 17 as being one of the members who were moving that day in village Andama. P.W. 17 has also identified other accused persons in the test identification parade and in Court. Some he has identified to have been seen by him while crossing the road and going into the orchard from which the culprits fired upon the unfortunate Sub-Inspector. Some he has identified as having been seen with a gun. The tenor of the prosecution evidence is that there was a party of much larger number than 7 persons in village Andama and preparing for commission of the crime, but sometime before the fatal time, they had divided themselves into two groups, one going into the maize field and the other into the garden, and that nothing further is known about the activities of those who went into the maize field. The evidence also shows that the party were moving from orchard to orchard in the afternoon of the day of occurrence. Under the circumstances, in order to convict Baldeo, it may be necessary to find whether he was one out of the seven, and that though he was not in the mob of the seven in the orchard, he was there near the place of occurrence and shared the common intention of all, and that he should, if not directly but constructively be held guilty of the offence. His attention has not been directed to this and other circumstances as noticed in the judgment of my learned brother in his examination under S. 342, Criminal P.C.I am satisfied that he was prejudiced in his defence by such omissions. Besides, we do not know what view the learned Judge in Court below should have taken about his guilt had he held that his confession was inadmissible. He should, therefore, get the benefit of a retrial and the order of conviction and sentence passed against him is, therefore, set aside, and his case is sent back to the learned Court below for retrial from the stage from which the trial is vitiated as indicated on account of defective examination under S. 342, Criminal P.C.,

Coming to the case of Jamuna, I am also of opinion that he should be retried. The most incriminating circumstances against him which lend a corroboration of the approver''s evidence against him is the recovery of the pistol which the deceased Sub-Inspector had, as it has been well proved, with him at the time of his murder, and which, as is proved by the prosecution witnesses, was taken by the dacoits. I cannot resist pointing out the defective nature of the search as it appears from the evidence of P.WS. 43 and 47 who have proved the search and find of the revolver. P.W. 43 says :

The police officers gave personal search in the angan. I cannot say if this was once or more than once. In that case I cannot say if I said that police gave personal search only once.

P.W. 47 deposes :

I led a police, party which raided the house of Ram Lochan Salaita at Nairn at 1 A.M. . . . Near him in the same room was found a fully-loaded 5 chambered revolver and case. . . . The revolver was recovered at about 3 A.M.

It is deposed to by Gaya Prasad P.W. 46, that Jamuna, Singh was arrested at 1-15 A.M. and that the party began searching the house (from which Jamuna was arrested) at 3 A.M. It is admitted that the party discovered the revolver at 3 A.M. and did not discover it at the time of Jamuna''s arrest. The Sub-Inspector P.W. 47 further says:

The witnesses did not sign the search and seizure lists at the same time.... The search witnesses came of their own accord on hulla. I found them inside the house. Members of the public were not prevented from entering the house during search and arrest. 5-7 villagers came inside the house. We did not arrest them. I know what they were doing. They all entered by the south door. There is a main door to every house. I do not know which is the main door of that house. I saw several doors of the same type. I did not enquire why those villagers had entered. I was running about. I cannot say who gave the names of the search witnesses. I asked them to witness the search and they consented.

As is apparent from the evidence which is quoted, that there was some circumstance of suspicion about the search and good care was not taken by the search party so as to be sure about exclusive possession of the incriminating substance by the accused. The further circumstance is that Upendra, not an accused in the case, was also arrested in the same room with a live revolver cartridge in his pocket. In the evidence as it is there are circumstances both for and against the case of Jamuna and in his examination under 3, 342 he has not been given an opportunity to explain the same and vital as the matter is in relation to his defence, it must be held that he too by defective examination has been prejudiced. Under the circumstances, the order of conviction and sentence against him must be set aside and his case must be sent back for retrial from the stage from which it has been found defective,, namely, from the stage where the accused''s examination under S. 342 is required. Both Baldeo and Jamuna should be examined again under S. 342, Criminal P.C. All the circumstances appearing against them in the evidence should be called to their attention and they should be given an opportunity to say in relation thereto as they may desire to say. Besides they must be given all other opportunities available under law in case of retrial. With these words, I entirely agree with the orders proposed by my learned brother.