In Re: Battu Musalayya and others

Ramaswami, J.—These are appeals preferred against the convictions and sentences of the learned Assistant Sessions Judge of West

Godavari division at Eluru in Sessions Case No. 46 of 1950. The facts are : The dacoity in this case took place in the house of P. W. 3 Pullayya,

at Kodigudem village on the night of 27th May 1950. On that night P. W. 3 and his eldest son Gangaraju were not in the village and the inmates of

the house were Manikyam (P. W- 1) and her daughter-in-law (P. W. 2) and the children of the family. They were sleeping inside the house and the

outer door had been bolted from inside. P. Ws. 5 and 6 Venkatachalam and Vekanna were sleeping on the peals of that house on cots. Then at

about midnight P. W. 5 was awakened by some conversation carried on in low tones. On getting up he was caught hold of by the tuft by one of

the dacoits who had come there armed. P. W. 5 was told to keep quiet on pain of being stabbed. Another dacoit stood keeping guard over him.

P. W. 6 had his hands tied by one of the dacoits to the cot on which he was sleeping. Then some of the dacoits knocked on the front door of the

house which was not opened. Thereupon some of the dacoits, excepting the one who was keeping guard over P. Ws. 5 and 6, scaled over the

wall of the backyard of the house and jumped into the backyard They opened the back door of the house and the others trooped in. Some of

these dacoits caught hold of P. Ws. 1 and 2 and beat them and took them inside the house and after beating P. Ws. 1 and 2 and Venkataratnam,

the younger son of P. W. 1, and threatening them, took possession of the keys of the iron safe (M. Os. 3) which was kept in a room in that house.

That safe could not be opened and all the battering with the crowbar resulted in nothing more than the handle of the iron safe getting broken. The

dacoits opened the other boxes including a trunk, they took possession of the clothes in the boxes used by the inmates of the house as well as Rs.

20 kept in another box. They snatched and took away also the Mangalasutrams of P. Ws. 1 and 2. The dacoits left the place taking with them

property estimated at Rs. 600 and probably much less.

On the next morning of 28th May 1950. P. W. 13, who was the Village Munsif and Triune Officer residing at Kothapalli, a mile from

Kodigudem, learnt about this dacoity, went to Kodigudem, recorded the information given by P. W. 1 and sent his usual reports to the Police and

the Magistracy. On account of the fact that the Tadikalapudi police station is nearly 30 miles away from Kodigudem, the Station House Officer P.

W. 26 received the report on the night of 28th May 1950, registered the case as Crime No. 19 of 1950, started investigation the next morning and

reached Kodigudem by midday of 29th May 1950. P. 21 the Circle Inspector of police who had received express report on 29th May 1950

reached Kodigudem on 30th May 1950 along with the Deputy Superintendent of Police, Eluru.

On receiving information the Circle Inspector arrested accused 6 on 18th June 1950 near Sriramavaram, and accused 7 on 25th June 1950 at

Ramanagudem. P. W. 19 who is the Inspector of Bhimadole who also investigated the case arrested accused 1 at Bohogapuram, accused 2, 3

and 4 at Surappagudem, accused 5 at Ambarpetta on 18th June 1950 and accused 8 and 9 at Apparaopalam on 25th June 1950. Under orders

of the District Superintendent of Police, P. W. 14 who was the Sub-Inspector and Crown Traffic Sargeant at Eluru, also took up investigation and

arrested accused 10, 11 and 12 at Madras on 30th June 1950. After investigation was completed P. W. 26 filed a final charge sheet on 15th July

1950 in the Stationary Sub-Magistrate''s Court, Eluru, for offences under Ss. 397, 398, 459, 461, 440 I. P. C., read with S. 511, I.P.C. The

accused were committed to the Court of Session on 9th October l950.

In the course of the investigation properties were recovered from several of the accused persons. The Panchanams prepared at the time of the

recovery of the properties from accused 6, 7, 1, 2, 3, 4 and 5 between 18th June 1950 and 25th June 1950 are Exs. P. 29, 31, 33, 34, 35, 36,

37, and 39,

Before the charge-sheet was filed P. W. 9, the Additional Stationary Sub-Magistrate. Eluru, held an identification parade in respect of accused I

to 9 on 1st July 1950 and another parade in respect of accused 10 to 12 on 7th July 1950.

P. W. 15 recorded the confessional statements of accused 1 to 9 on 30th June 1930. These confessional statements have been marked as Exs.

P. 19 to P. 27. On 9th July 1950 the Stationary Sub Magistrate recorded the statements of accused 10, 11 and 12. The said accused mentioned

to P. W. 15 while giving the statements that the Police beat them and compelled them to confess. So the statements recorded from accused 10, 11

and 12 on 9th July 1950 cannot be made use of as confessional statements.

The case for the accused was that the identification evidence in this case is untrustworthy and should not have been acted upon; secondly, that

the recovery of the stolen properties had not been brought home to them beyond reasonable doubt and thirdly, that the confessional statements

recorded from them were tutored and enforced statements and that they are vitiated by material irregularities and that no use should have been

made of these vitiated and retracted confessions.

The learned Assistant Session Judge convicted all the accused except accused 3 as follows: He convicted each of the accused 1, 2, 4, 5, 11

and 12 under Ss. 395, 461, 440, 342, 394, 148 and 458, I. P. C. and gave varying terms of imprisonment and made them to run concurrent, the

maximum of which was 3 years in the case of accused 1 and 2, five years in the case of accused 4, 5 and 11 and six years in the case of accused

12 under S. 395, I.P.C. These accused were also sentenced to pay a fine of Rs. 25 each under S. 395, I.P.C. or in the alternative to one month''s

rigorous imprisonment. In the case of accused 6, 8 and 9, each of them was convicted under Ss. 397, 398. 459. 461, 440, 394, 342, 148 and

458, I.P.C. and sentenced to various terms of imprisonment the maximum of which was 7 years under Ss. 379 and 393 I.P.C. In the case of

accused 10. he convicted him under Ss. 398, 461, 440, 342, 394, 148 and 458, I. P. C. and sentenced him to various terms of imprisonment and

made them to run concurrently the maximum of which being 7 years under S. 398 I. P. C. He convicted accused 7 under S. 411, I. P. C., and

sentenced him to simple imprisonment for a period of six months. Out of the fine amounts recovered a sum of Rs 50 was made payable as

compensation to each of P. Ws. 1 and 2.

In appeal the three points which are taken are the same as in the lower Court by the accused persons because the evidence against accused 5,

6, 8 and 9 consists of identification, recovery of stolen properties and confessional statements; the evidence against accused 1. 2 and 4 consists of

recovery of stolen properties and confessional statements; the evidence against accused 7 consists of recovery of stolen property and confessional

statement and the evidence of identification having been disbelieved and rejected and the evidence against accused 10 to 12 consists of

identification and recovery of stolen properties, their statements not having been accepted as confessional statements.

Point 1 :- In regard to identification it consists of identification at the scene which enabled the witnesses to identify the respective accused at the

identification proceedings. There is no section in the Evidence Act under which the identification proceedings is evidence at all : Bindeshri and

Others Vs. King-Emperor But under S. 9 of the Evidence Act the evidence of identification proceedings are facts which establish the identity of the

accused persons and are themselves relevant : 51 Cri. L. J. 180. In some cases where the accused make good their escape and are not caught at

the spot, identification parades are held, There is no prevision in Criminal Procedure Code which entitles an accused to demand that an

identification parade should be held at or before the enquiry or at the trial. An identification parade belongs to the stage of investigation by the

police. Identification parades are held not for the purpose of giving defence Advocates material to work on, but in order to satisfy investigating

officers of the bona fides of the prosecution witnesses: In re Sangiah 49 Cri. L.J. 89. The evidence as to identification ought in each case to be

subjected to a close and careful scrutiny, It is an important fact or whether all the persons identified were previously known to the witnesses or

were perfect strangers to them. The time of the occurrence, the state of light and the opportunities which the witness had of identifying are material

circumstances. The range and the distance from which the witnesses say that they saw the accused ought to be determined: Man Singh and Others

Vs. Emperor, In some cases like dacoity, murder, not etc, when the accused make good their escape and are not caught at the spot, the names of

the culprits are not found in first information report and they are arrested after some months, the accused persons are brought up for identification

and if the identifying witnesses had no opportunity of seeing these accused before the parade, the fact that these witnesses picked out the same

persons would be a strong corroboration of the prosecution case. But one cannot shut one''s eyes to the fact that the identifications do require the

most careful scrutiny because if the witness had before the parade seen the accused he is going to identify, it does not matter in what order you put

this person, for such a witness will no doubt identify that man: Nanni Kudumban v. Crown AIR 1924 Mad. 232= 18 L.W. 482. Identifications in

jail are. of considerable value when the conduct of the investigation by the Sub-Inspector gives the Court evidence in the correctness of his

method. But where the investigation in a case inspires the Court with very little confidence, the identification cannot be accepted : Tahawar Ali

Khan v. Emperor AIR 1946 Oudh. 26.

Bearing these principles in mind, we shall examine the identification of accused 5, 6 and 8 to 12. P. Ws. 2, 4, 7 and 8 have identified accused

5 at the scene; P. Ws. 1, 2, 4 and 8 identified accused 6; P. Ws. 2, 5 and 6 identified accused 8 : P. Ws. 1 and 2 identified accused 9; P. Ws. 5

and 6 identified accused 10; P. W. 1 identified accused 11 at the Sessions Court and P. W. 2 identified accused 12 at the identification parade. P.

W. 1 identified accused 7 to 9 in the identification parade and accused 5, 7, 8 and 9 in the committing Court as the persons who beat her and

accused 6, 9 and 11 in the Sessions Court as the persons whom she remembered as being among the dacoits who came inside and molested her.

P. W. 2 identified the accused as the persons who came inside the house and particularly identified accused 6, 8 and 9 as the dacoits who

intimidated her and P. W. 1. She identified accused 5 and 6 as the persons who came 15 days before the occurrence posing as Sales Tax Officers

and conversing with her husband about the prices of the articles in the shop. In the committing Court also she particularly identified accused 7, 8

and 9 as the persons who beat her and accused 5 and 6 as the person who came posing as Sales Tax Officers. In the first identification parade she

identified accused 7, 8 and 9 as persons who beat her and in the second identification parade she identified accused 10 and 12 as the persons who

beat her and robbed her. Thus, she has identified throughout accused 8 and 9 as two of the dacoits. P. W. 4 identified accused 5 and 6 as the

persons who came to the shop a few days before the occurrence posing as Sales-Tax Officers and apparently to find out the he of the land. P. W.

5 identified only accused 8 and 10 as the persons who came and caught hold of him and also as persons who tied P. W. 6 and that out of the two,

one remained with him till the others arrived and that alter the others left accused 10 who was in the pial also left and that it was accused 8 who

caught hold of his tuft as soon as he woke up and threatened him not to make a noise. in the committing and Court in the first parade also tins

witness identified accused 8 and 10. P. W. 6 identified accused 8 as the dacoit who tied him to the cot. He has identified him at the parade and in

the committing Court also. P. W. 7 identified accused 5 and 6 in the following circumstances. He stated that before the dacoity in the house of P.

Ws. 1 to 4, accused 5 and 6 came in khaki shorts and white shirts on cycles brought by P. W. 4 and that he (P. W. 7) was asked about the two

rice bags in his house, that accused 5 and 6 asked for the account books and said that he was evading tax and threatened to take him to

Bhimadole and put up a case against him, that they took him and P. W. 8 outside the village and on their saying that they would be let off if P. Ws.

7 and 8 paid money, P. W. 7 paid Rs. 2 and P. W. 8 also paid Rs. 2 and that thereupon accused 5 and 6 left them. P. W. 8 corroborated P. W. 7

and from his evidence it is seen that he is another victim of this bogus representation of accused 5 and 6. In the identification parade P. Ws. 7 and

8 identified accused 5 only as one of the bogus officers. This identification at the scene of offence can be accepted for three reasons, viz, that there

was sufficient light for the dacoits to be identified and secondly, there was sufficient time for the victims to acquaint themselves with the features of

these dacoits and thirdly, specific acts were committed by these dacoits which fixed their features on the minds of these victims. That there was

sufficient light furnished by torch light is spoken to not only by these witnesses but also by the fact that the dacoits have been able to move about

without getting tripped up knocking against others and things, make searches and select and annex various things and carry away the booty and for

all of which the dacoits also required and had obviously sufficient light, The dacoits were in close proximity to these victims and there was sufficient

time during which this dacoity took place for these victims to acquaint themselves with the features of the dacoits. In addition, the important thing to

be borne in mind in this case is that the dacoity took place in a village and country men, who have not got their minds contused by too many sights

and too many visual impressions crowding their minds and who have not lost their powers of observation like urban people, where the victims in

this case and their powers of observation can be relied upon safely. That is why nothing which happens in a small village escapes the prying eyes

and retentive memories of the rustics. Then, on account of the importance of the incident and on account of no other equally important thing which

would efface that impression, the visual images formed at the time of the commission of the offence and constantly reinforced by thinking about it

and not allowing it to be forgotten, make the identification in such cases trustworthy. It would be different if in a crowded town a man casually sees

an act in which he is not vitally interested and then gets it quickly blurred away by other sights and then pretends to identify a long time thereafter

the person who committed the act. In this case the difficulty is not whether these victims would remember the faces of their torturers but whether

they could ever forget them. In regard to identification parades, it is found that they have been held by the Stationary Sub Magistrate taking all

necessary precautions to ensure a fair and legitimate identification. The net result of this analysis of the evidence is that the identification in this case

is trustworthy and has been rightly accepted by the learned Assistant Sessions Judge. This scrupulous weighing of the evidence is also evident from

the fact that the learned Assistant Sessions Judge convicted accused 7 only under S. 411, I. P. C.

Point 2 : In regard to the recovery of properties the prosecution has established three things, viz, that these properties were recovered on

information given by these accused. Secondly, that these properties were recovered from their possession and thirdly, that the properties so

recovered from them on information given by them formed part of the properties taken away by the dacoits from the house of P. W. 3. The

learned Assistant Sessions Judge has carefully analysed the information under this head in paragraphs 37 to 43 in his judgment. It is unnecessary to

recapitulate the details set out in these paragraphs as the criticism advanced is not regarding the details which are admitted to have been carefully

set out but in regard to three maulers of general criticism viz., that the first information has not given meticulous description of the property,

subsequently recovered; secondly, that these articles are articles of common pattern having no particular distinguishing marks and thirdly, that they

have been recovered from places not in the exclusive possession of the concerned accused persons.

It is quite true that Courts in India are insistent upon relevant information finding a place in the first information report. The object of first

information report is to have a record of all the relevant information before there is time for them to be forgotten or embellished. This would

safeguard the excused against subsequent variations and additions: Hafiz Mohamad Sani and Others Vs. Emperor, But it is a matter of common

sense that a report which is given under circumstances of haste or bodily pain or incomplete knowledge of the true; facts cannot be expected to

mention all the minute details; and to consider that the information is the last word in the prosecution case is to say the least a too narrow view of it

: Raja v. Emperor AIR 1924 Lah. 591, AIR 1928 913 (Lahore) Asiruddin Ahmed Vs. The King-Emperor and AIR 1928 17 (Lahore) In a

dacoity case it will be obviously impossible for the owners to give an exact inventory of all that had been lost because few of us make inventories

of our possessions as is done in the case of offices and firms in regard to their furniture, books etc. That is why a differentiation is made in regard to

lists of properties supplied to the police after the investigation has literally started and still in the preliminary stage and they are treated as part of the

first information in proper cases : Brijlal v. Emperor AIR 1943 All. 210, AIR 1931 74 (Oudh) and AIR 1931 83 (Oudh) and as not being hit at by

S. 162 Crl. P. C., In the instant case sufficient particulars have also been given though naturally enough every article has not been described in

detail and which is not always possible to do so. I am unable to discount, therefore, the value of the first information report in this case on the

ground that minute details of the articles lost are not given.

Turning to the contention regarding the articles identified being of a common pattern with no distinguishing marks. It has been repeatedly laid

down by this Court that even in such a case it is possible for the owners to identify such articles. In advancing this criticism it is forgotten that small

and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any

special attention to them, make an impression on the mind. They are component parts of the thing and go to make the whole of which the mind

receives an impression. In this case the impression is the general appearance of the thing. This sort of impression is exceedingly common; a

workman has it of his tools and most people have it of their dress, jewellery and other things they are frequently seeing, handling or using, It occurs

every day that by remembrance of their general appearance a carpenter, mason or other workman recognises his tools; and dress, jewellery or

other properly is known by its owner. Undoubtedly animals and things may be identified by those familiar with them. Observation teaches that such

identification may be safely relied upon. But at the same time a witness would not be able to formulate his reasons for the identification since it is

based upon general untranslatable impressions of the mind, I may readily recognise my Veshti, my cow, my wife''s addigai or my friend''s

handwriting in the midst of multitude of other things in most respects like them. But if questioned I would not be able to formulate any cogent or

intelligent reason for the identification, It would be fatuous to discredit, such identification on the ground that reasons are not being formulated for

them. It is not the case for these appellants that these properties belong to them. On the other hand they deny all knowledge of producing them and

do nut claim any acquaintance with the properties. Therefore, when it is found that respectable witnesses have identified their own articles, of

merely by their frequently seeing, handling and using them, it is silly to reject their testimony on the ground that identification parades for these

articles were not held and that reasons have not been formulated by these witnesses. In the instant case the owners who have identified these

articles are persons who had been frequently seeing and handling them and were therefore competent to identify. The learned Assistant Sessions

Judge who has seen these witnesses in the box has unhesitatingly accepted their evidence and this is a circumstance entitled to great weight.

Finally, the articles have all been recovered on information given by the concerned accused persons and what is more they have been

recovered either from places in which they have been living and where from they got and produced these articles, or from places only known to

them and which no ordinary member of the public could legitimately be expected to know. In other words, we have a combination of three bits of

evidence bringing home the recovery of the stolen properties to these accused persons. The decision of the Privy Council in Pulikuri Kottayya v.

Emperor 1947 M. W. N. Crl. 45= 60 L.W. 258 (P.C.) explained in the Public Prosecutor v. Oor Goundau 1948 M. W. N. Crl. 12, Vellingiri v.

The King 1950 M. W. N. Crl. 77 and Sheik Khnder Sahib v. The King 1949 M. W. N. Cl. 128= 62 L.W. 768 makes it clear that in the class of

cases where the gist of the offence is possession words such as ""I hid"", ""I pledged"", ""I sold"" ""I gave"", or ""I have kept"" are admissible. In addition, if

the article is so hidden away that no member of the ordinary public would know of its concealment there and if it is the accused who takes it out

and produces it, the legitimate presumption under S. 114 of the Evidence Act is that it was the accused who had secreted it there. The conduct of

the accused becomes relevant under S. 8 of the Evidence Act. The prosecution having brought home the possession to these accused of the stolen

properties and such possession being unexplained by any innocent origin the inference under S. 114 of the Evidence Act that a person in

possession of stolen property recently stolen is either the thief or has received the goods knowing them to be stolen unless he can account for their

possession, has to be drawn.

The learned Stationary Sub-Magistrate who has recorded the confessional statements has adhered to the procedure followed in the Madras

State for recording the confessional statements, (1) Accused desiring to make a confessional statement is produced before a competent Magistrate

preferably in the Court house and during working hours by the police escort if he had not been remanded already or from the sub jail on police

requisition to record confessional statement; see Rr. 84 and 85 of the Criminal Rules of Practice. (2) The Court house is cleared of all Police

Officers and the co-accused and the hand cuffs are got removed and a calm atmosphere is ensured. Though all the accused expected to confess

must normally be sent up together their confessions should be recorded one after another and without interval and when the statement of one

accused is recorded the other accused should not be present. Brief examination by the Magistrate to assure himself that (i) the accused wants to

make a statement and (ii) bears on his person no marks of ill-treatment and (iii) has no complaint to make of pressure, inducement etc., then takes

place. Then the Magistrate warns the accused that he is not bound to make a confessional statement and that if be does so it might be used in

evidence against him later and if there is more than one accused in the case it is not intended to take him as an approver and that time will be given

to him to reflect over the matter. The Magistrate then and there makes a note of what he had done. The warning in terms of S. 163 (4) Crl. P. C.,

is mandatory, See R. 85(1) Criminal Rules of Practice. (3) The accused is remanded to the sub jail with instructions to the Sub Jail Superintendent

who is gent-rally the S. S. M., himself to keep the prisoner separate from other prisoners and cut off all access to the police investigating the case.

(Rule 86 Criminal Rules of practice), and normally one day''s time is given for reflection. (4) On the appointed day when the accused is produced

after the interval in Court and during working hours the Magistrate once again asks him if he wishes to make confessional statement and if the

accused says ""yes"" he is once again warned that he is not bound to make a confessional statement and that if he does so it might be used as

evidence against him and that it is not intended to take him as an approver and if the accused still states that he wants to make a statement the

Magistrate puts to him the questions set out in the Criminal Rules of Practice of the Madras High Court 85 (1) and (2) and similar orders of other

High Courts and records the questions and answers. If the Magistrate is satisfied both from the answers and the demeanour of the accused that the

statement the accused is going to make will be a voluntary and not a tutored and enforced one, the Magistrate records this satisfaction of his in

continuation thereof and proceeds to take down the statement in the narrative form; see R. 85 of the Criminal Rules of Practice. The questions,

assurances and the answers may conveniently be appended to the memorandum prescribed by S. 165 (3) Crl. P. C., R. 85 (2) latter part,

Criminal Rules of Practice, and S. 364 (1) Crl. P. C. The confessions must be recorded in the language in which it is received or if that is not

practicable in the language of the Court or in English. (5) After recording the statement the Magistrate reads it and if necessary gets it interpreted to

the accused and if it is admitted by him to be correct his thumb impression or signature is got affixed thereto. The Magistrate then signs the record

and certifies it as prescribed and appends the memorandum prescribed under S. 164 Crl. P. C., to the foot of the statement. The entire record will

thus consist of (1) note regarding the warning given to the prisoner and the time given for reflection on his first production in pursuance of

requisition to record confessional statement; (ii) note regarding the warning given to prisoner when produced after interval the questions put to him

and the answers given by him; (iii) the note of the Magistrate that he is satisfied that the confession was going to be made voluntarily; (iv) the

confession statement in the narrative form; (v) the certification of the deposition and (vi) the memorandum appended at the foot of the statement.

The accused who has either made a confessional statement or declined to make one should be returned to the jail and not sent back to Police

custody.

These rules which at first sight may appear complicated and grandmotherly are based upon sound reasons as has been pointed out in the case

law on the subject. Inasmuch as Jermy Bentham has pointed out ""If the laws were constantly accompanied by a commentary of reasons they

would be more pleasantly stated, more easily known, more constantly retained, more cordially approved. I shall briefly set out the reasons for

these rules as expounded by our Courts. The rule that the prisoner should not be produced at unusual hours and outside Court premises is based

upon the anxiety of the Police to get the statement of the accused recorded even at late hours in the night and in the houses and Muzafari

bungalows occupied by Magistrates, might be consistent with their being nervous that by the morning or if given time the accused might go back on

his promise to make a clean breast of the affair. It may indicate shock tactics on the part of the Police which must be severely discouraged as

confessions to be of value must be both voluntary and stuck to and not obtained by unfair methods. Emperor v. Jamuna Singh AIR 1947 Pat. 305,

AIR 1937 98 (Lahore) and Kishan Chand v. Emperor AIR 1938 Pesh. 5= 39 Cri. L. J.448. The precaution about all the accused expected to

confess having to be sent up together and the confession of each being recorded one after another without interval and in the absence of the other

co-accused is based upon the fact that if confessions of accused who have all been apprehended are recorded piecemeal and separated by time,

this may raise a strong suspicion that pressure was being exerted on the subsequent accused confessing to follow the example of the previous

accused confessing and if confessions are recorded with a number of persons crowded in the place, it would not be conducive to a calm

atmosphere and what is more, such crowding together would lead to corroborations in minor details of the confessions which would not otherwise

be the case; Kuruba Linga and Kuruba Mahadeva v. Emperor 1930 Mad. Crl. C. 270, Bhagvandin v. Emperor AIR 1934 Oudh. 51 = 35 Crl. L.

J. 915, Emperor Vs. Bhimappa Saibanna Talwar, Similarly, the precaution of removing hand cuffs is based upon the fact that otherwise the

accused could not really believe that he was making a voluntary confession : AIR 1937 220 (Nagpur) It is enjoined by Prag v. Emperor AIR 1930

Oudh. 449= 32 Cri. L. J. 97 that the first thing that a Magistrate has to tell the prisoner is that he is in the presence of a Magistrate. This is to make

the prisoner who wants to make a statement feel that he is under the strong protection of the Magistrate and that the Police would not be able to

molest him whatever he might say or decline to say. Time is given for reflection because if after reflection a man makes up his mind to make a

confessional statement, there is far more likelihood of its being voluntary and his sticking to it at the later stages and would also be more precise.

There is no statutory period of time for reflection and normally 24 hours are to be given. See R. 85 (3) of the Madras Criminal Rules of Practice.

The time should be sufficient to enable us to feel that the accused was no longer suffering from the effect of Police or other influence to confess.

The time therefore to be given for reflection will depend upon the circumstances of each case and as I have pointed out normally 24 hours should

be given after production from custody : Public Prosecutor v. Rajula pati Basayya 1937 M.W.N. Crl. C. 370, and Emperor Vs. Chavadappa

Pujari, The precatuions about the accused being sent to jail custody and not to police custody at any stage after his production for the confessional

statement being recorded and the Magistrate seeing that the investigating police in the case having no access to the accused person in the jail are all

intended to prevent unfair practices and pressure being brought on the accused to confess : AIR 1934 151 (Oudh) , and Gurubaru Praja and

Another Vs. The King,

In regard to the questions to be put, the Madras High Court and other High Courts have after consideration evolved a questionnaire which

would seem to ensure the object in hand. The Magistrate should not merely repeat mechanically the questions but must intelligently follow the spirit

and make sure that the person contesting fully understands that the confession will be given in evidence against him and that there was no intention,

if there were more than one accused, of taking him as an approver and that he has not in any way been induced, threatened or promised that he

has a real motive like e.g, contrition, having no choice in the face of the overwhelming evidence against him but to confess. In recording the

confessional statement in the narrative form, oath should not be administered to the confessing accused. But the illegality is however a durable one :

Karan Ilahi v. Emperor AIR 1947 Lah. 92. The accused giving a confessional statement may be questioned so far as may be necessary to enable

the Magistrate to elicit from whatever facts he is willing to state to understand exactly what his meaning is and how far he intends his confession or

admission to go : AIR 1937 220 (Nagpur) If the statement contains any ambiguity it is the duty of the Magistrate to question the accused and give

the accused a chance for make his statement intelligible : Abdul Jalil Khan and Others Vs. Emperor, If a concession is of great length, it can be

recorded picemeal: Nil Madhah Chowdhury v. Emperor A. I. R. 5 Pat. 171. In the course of questioning by a Magistrate it accused complains

that he was beaten by the Police, Magistrate must examine his body; other wise not: Emperor Vs. Chavadappa Pujari, If in the later stages of

recording the confessional statement the accused states complaining ill treatment by the Police the Magistrate must pursue this matter and satisfy

himself afresh about the voluntariness of the statements: AIR 1947 95 (Oudh)

It is refreshing to find that in this case the criticisms levelled against these confessional statements and the use made of them by the learned

Assistant Sections Judge fall only under two heads, viz, that the learned Assistant Sessions Judge has not paid attention to certain infirmities and

secondly, the he should have treacle these retracted confessional statements as entirely worthless.

The infirmities pointed out are three in number, viz, that the Magistrate did not disclose him self as a Magistrate to the deponents; secondly that

the confessions were non recorded in open Court and during Court hours, and thirdly that none of the deponents was warned that it was not

intended to take him as an approver. These infirmities either singly or completely, did not vitiate the confessional statements recorded in this case. If

the confession is otherwise unassailable it does not become inadmissible merely because it was recorded on a Sunday or on any other holiday and

in a place other than the Court-house, since there is no provision of law which forbids a Magistrate from recording a confession on such a day and

at such a place: AIR 1930 171 (Lahore) Nowhere does the Code provide that the confession should be. recorded in open Court: Nil Madhah

Chowdri v. Emperor 5 Pat. 171, A Magistrate in recording a confession on a Sunday transgresses R. 85 of the Criminal Rules of Practice in that

the confession was not recorded in Court house. But it has been held in Karunthambi v. State 1950 M.W N. Crl. 73= 63 L.W. 449, that this is a

defeat of that kind which cannot be stated to be a defeat of substance but only of form. In this case as a matter of fact the Magistrate has sworn

that he recorded the confessional statements in the Court hall and not in his Chambers. The Magistrate has so recorded because he is a Tahsildar

Magistrate and has to make use of the Court hall only when the Magistrate was not working. I am unable to see what prejudice has been caused

to these accused persons and none is alleged. Then, as regards the Magistrate not disclosing himself it is quite true that the first thing that a

Magistrate has to tell the prisoner is that he is in the presence of a Magistrate: Prag v. Emperor AIR 1930 Oudh. 449. But there is no illegality in an

omission to do so when the prisoner is aware of the fact, as has been the case in the instant case: AIR 1932 103 (Lahore) Turning to the final

infirmity pointed out that the Magistrate omitted to warn each of the accused persons that it was not intended to take him as an approver, the

omission does not become ipso facto fatal to the reception of the confessional statement. The circumstances surrounding the omission and the

resultant prejudice caused to the accused must be considered. In Govindu Subbaramayya v. Emperor AIR 1937 Mad. 321 = 1937 M.W.N.

178= 45 L. W. 93, the Magistrate who recorded the confession with meticulous care and put a number of questions to the accused before

recording the confession, did not give any warning as required by R. 83 of the Criminal Rules of Practice that it was not intended to take him as an

approver. This omission was considered fatal because the accused in that case had definitely pleaded in the preliminary enquiry itself that he made

the confession under the hope held out to him by the Police that he would be taken as an approver and the surrounding circumstances also showed

that such a hope might have been held out by the Police. Therefore there was prejudice to the accrued by this warning not being given to him. In

Chinnapureddi Ammi Reddi alias Hamini Reddi v. Emperor 1935 Mad. Crl. C. 363, it was pointed out that the rule of practice is not a rule of

statutory obligation and the omission to observe a particular rule does not by itself make the confession inadmissible and the surrounding

circumstances have to be examined to find out the resultant prejudice to the accused. In this case there was evidence of talk to take the accused as

approver after his arrest and just about the time of his confession and in such a case it was held, the omission to give the warning that it was not

intended to take him as an approver becomes important. In other words, there was material on record in that case for holding that the omission to

give the warning was not without significance and bearing on the voluntariness of the confession. If on the other hand the birth of the idea of taking

the accused as an approver was after he made the confession, it would certainly not make the omission material. Therefore, the surrounding

circumstances have got to be examined. In Boya Karrevadu alias Anjanigadu v. Empetor 1937 Mad. Crl. C. 175, the Magistrate did not record

that he had warned the accused that he would not be taken as an approver and in his oral testimony the Magistrate said that he had given such a

warning to the accused and there was no reason to disbelieve the evidence of the Magistrate. Therefore the omission to record was not considered

material, especially as the Magistrate was shown to have complied with the other requirements of the rule and had assured himself that the

statement he was going to record was a voluntary one. In Re: Vridhichand Sowcar and Others, , the Magistrate had substantially complied with the

requirements of R. 85 of the Criminal Rules of Practice and had satisfied himself that the confession was a voluntary one and not brought about by

threat, coercion or inducement. It was held that the question that there was no intention of taking the accused as an approver was one of the many

questions set out in the Criminal Rules of Practice as a means whereby the Magistrate might assure himself that the confession was a voluntary one,

and that when he had done so and that there were no other surrounding circumstances showing resultant prejudice, this omission was not fatal to

the reception of the confessional statement. On the same principle, owing to the particular circumstances of that case in In re Venkatareddi (1950)

2 M.L.J. 298= 63 L.W. 839, the omission to give such a warning was held fatal to the admissibility of the confession as it cast a grave doubt, in

the circumstances of the case, regarding the voluntary nature of the confession might not have been made if the person confessing had not hopes of

being taken as an approver.

In regard to retracted confessional statements, in view of the Supreme Court''s decision in Kashmir Singh v. State of Madhya Pradesh (1952)

S.C.J. p. 201, which is the final word on the subject there is no necessity to discuss the previous case-law on the subject. In this case the

confessional statements have been affirmatively shown to be voluntary and secondly, they are also found to be corroborated and hence there is no

necessity to discuss the line of decisions of our High Court that a retracted confession, which is a common phenomenon, can be acted upon even if

it is uncorroborated if the reasons given by the accused for withdrawing the confession are palpably false; In re KeSava Pillai AIR 1929 Mad.

837= 31 Crl. L. J. 768= 30 L. W. 642, and In re Rajagopal AIR 1944 Mad. 117= 45 Crl. L. J. 373. The corroboration which is available in this

case consists of identification at the scene of recovery of stolen properties. Therefore these confessional statements have been rightly received as

evidence and acted upon by the learned Assistant Sessions Judge. The learned Assistant Sessions Judge has convicted accused 6, 8, 9 and 10

under Ss. 397 and 398, I. P. C. The conviction under S. 397 cannot be supported in the circumstances of this case as it has not been shown that

deadly weapons had been caused or death or grievous hurt had been expected to be caused. The learned Public Prosecutor agrees that the

conviction under S. 398, I. P. C. is absurd as it relates only to attempts and the case for the prosecution here is of completed acts. Therefore, the

convictions under Ss. 397 and 398 are set aside and these accused are convicted under S. 395, I. P. C. instead. The other convictions are

confirmed. In regard to sentence each of them is sentenced to R.1. for 3 years under S. 395 I.P.C. the sentence of 5 years given to accused 4, 5

and 11 and 6 years given to accused 12, are reduced to 3 years, under S. 395, I. P. C. In other respects the sentences of imprisonment awarded

to these accused are confirmed. The conviction and sentences on accused 1 and 2 are confirmed. The sentences of fine imposed on accused 1, 2,

4, 5, 11 and 12 and the compensation awarded are cancelled. Subject to the above modifications the appeals will stand dismissed.