King-Emperor vs Dewan Kahar

Das, J.—This is a reference by the Judicial Commissioner of Chota Nagpur for confirmation of a sentence of death passed on one Dewan Kahar who was charged with having murdered his wife on the afternoon of Monday the 15th of June, 1922. There is also an appeal by Dewan Kahar against the conviction and sentence passed on him.

The admitted facts are very few and may be stated as follows:-

Dewan, the appellant, and Bhawan are two brothers, and they lived near each other in separate houses in the same Mohalla. On the day of the alleged occurrence, Dewan''s daughter and the younger sister of Bhawan''s wife were both married, and it appears that the ceremony took place in the house of Bhawan who had more accommodation in his house, and whose wife is very much attached to Dewan''s children. Dewan and Bhawan each contributed Rs. 125 for the expenses in connection with the wedding ceremony. The wedding took place between 6 a.m. and 8 a.m. and the Barat parties left at about 11 a.m.; before the parties left, Bhawan asked Dewan for Rs. 20, as he wanted to give each girl a present of Rs. 20 at the time of their going away; but Dewan said that he had no more money. The parties left, as I have said, at about 11 a.m. and Dewan and his wife stayed on in Bhawan''s house, and it appears that the two brothers lay down to rest. At about 2 p.m. Bhawan got up and he saw Dewan still reposing, and Dewan''s wife sitting near Dewan. Shortly after, Dewan''s wife got up, took the key of the house from Dewan, and went off, leaving her husband in Bhawan''s house. At about 4-30 p.m. Dewan himself got up and left his brother''s house, taking with him his little child. He returned in about fifteen or twenty minutes with his child, and it is the prosecution case that the occurrence took place between the time he left his brother''s house and the time he returned to it. Dewan returned to Bhawan''s house, as I have said, in fifteen or twenty minutes, and asked for a glass of water. Bhawan saw marks of blood on his Dhoti and asked him how those marks came on his Dhoti. He gave no answer, but put his boy on the ground and threw down Rs. 40-8 which he had with him. Bhawan again asked him what had happened, and he said "We shall meet in Hell": and then he added: "Some one has killed my wife" and then, he went off in the direction of the thana. At the thana he made a statement which the Police took down as the First Information Report in the case, but which the learned Judicial Commissioner very properly excluded from his consideration on the ground that it was in the nature of a confession. The appellant was then sent by the Police to a Deputy Magistrate, in order to enable him to make a confession to the Deputy Magistrate. The Deputy Magistrate, Babu Baijnath Sahay, for some reason which has not been made clear, did not record the confession that day. The appellant remained in the Hajat that night, and was again sent to the Deputy Magistrate the next morning. The Deputy Magistrate then recorded a confession u/s 164 of the Criminal Procedure Code. The Inquiring Magistrate examined the appellant u/s 364 of the Criminal Procedure Code, and it appears that the appellant made another statement before the Committing Magistrate which was in the nature of a confession. In the Sessions Court, however, the appellant retracted his confession, and said that some one came to him at midnight while he was in the Hajat and asked him to admit the murder and said that if he admitted it he would be discharged by the Magistrate. His case before the Sessions Judge was that he followed the instructions given to him by this unknown person or persons as he thought that the Magistrate would discharge him if he admitted the murder.

The whole case of the prosecution rests on the confessions alleged to have been made by the appellant; first before Babu Baijnath Sahay, and secondly before the Committing Magistrate. Apart from these confessions, there is no evidence whatever to connect the appellant with the murder of his wife except, perhaps, certain statements alleged to have been made by him to certain persons as he was proceeding to the thana after the alleged occurrence. It has not been argued before us that there is sufficient evidence to support the conviction if for any reason we are unable to act upon the confessions. It, therefore, becomes very material to consider first as to whether the confessions were properly admitted in evidence, and secondly whether they or any of them, can be acted upon in the present case.

The argument in regard to the confession recorded by the Committing Magistrate is a short one, and it will be convenient to dispose of it at once. The argument is that there is no evidence that the confession, as recorded by the Committing Magistrate, was shown or read to the appellant or that he had any opportunity to explain or add to his answers. The argument is founded upon the express provision of Section 364 of the Criminal Procedure Code which provides as follows:- "Whenever the accused is examined by any Magistrate, or by any Court other than a High Court established by Royal Charter, or the Chief Court of Punjab, or the Chief Court of the. Lower Burma, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers." It will be noticed that the legislature makes it obligatory on the Court to show or read the record to the accused persons; and the reason is that he is at liberty to explain or add to his answers until he puts his signature to the record. Now, there is nothing in the record itself to show that it was shown or read to the accused person; but the learned Sessions Judge has taken the view that there is no law requiring the Magistrate to record any formal note in excess of what is prescribed by the form. We are not for the moment concerned with the question whether there is anything in the law which requires the Magistrate to record a note to the effect that the record was shown or read to the accused person. It may be pointed out that there is nothing in Section 360 of the Criminal Procedure Code for instance which requires a Magistrate or Sessions Judge to record any formal note to the effect that the evidence of a witness has been read over and explained to a witness; but we find that the learned Sessions Judge has been very careful to add that formal note to the evidence of each of the witnesses examined by him. The question is not whether there is any obligation on a Magistrate or a Sessions Judge to record any formal note to the effect that the record was read over to the accused person, but whether there is any evidence that the record was in fact read over to the accused person. The point was taken before him before the evidence was concluded, and the learned Sessions Judge should certainly have examined the Committing Magistrate on the point. As it happens, there is no evidence whatever that the record was shown or read to the accused person, and I must hold that the statement made by the accused person, to the Committing Magistrate cannot be used as evidence against him.

I now come to the confession recorded u/s 164 of the Criminal Procedure Code. There is an endorsement of the Deputy Magistrate to the effect, that the confession was voluntarily taken and that it was taken in his presence and hearing and was read over to the person making it who admitted it to be correct, and that it contained a full and true account of the statement made by him. The learned Deputy Magistrate who recorded the confession has been examined in the case, and he says that he "judged that Dewan accused was talking quite voluntarily and without pressure." The learned Vakil for the appellant has argued before us that notwithstanding the certificate of the Magistrate, it has still to be proved by the prosecution that the confession was a voluntary one, and in support of his argument he relied upon section 24 of the Evidence Act. That Section runs as follows: "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by an 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 an advantage or avoid any evil of a temporal nature in reference to the proceedings against him." It was argued that the use of, the word "appears" shows that the section does not require positive proof of improper inducement to justify the rejection of the confession; such word indicating a lesser degree of probability than would be necessary if "proof" had been required. The argument, in my opinion, is not correct; for section 80 of the Evidence Act provides in distinct terms that whenever any document is produced before any Court purporting to be a statement or confession by any prisoner or accused person taken in accordance with law, purporting to be signed by any Judge or Magistrate, the Court shall presume that the document is genuine; that statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true, and that such statement or confession was duly taken. In my opinion, there is no real conflict between section 24 of the Evidence Act and section 80 of that Act. Whenever the conditions specified in section 80 are complied with, it must be presumed that the document is genuine, and that the confession was duly taken; but nevertheless the Court is bound to treat it as irrelevant if it should appear to the Court that the confession was procured by any inducement, threat, or promise. Now I do not see how it is possible for a Court to say that the making of the confession "appears" to it to have been caused by any inducement, threat, or promise, except upon evidence which is before the Court. The inference may be suggested by the confession itself, or by the evidence of the prosecution or by the evidence adduced by the accused person, or by the surrounding circumstances which the Court is always bound to take into consideration; but the conclusion cannot be reached on surmise or conjecture. The question, however, is of academical interest in this case for, as I have pointed out, the confession has been retracted, and it is the universal practice of this Court not to rely or act on a confession which has been retracted, unless after consideration of the whole evidence in the case the Court is in the position to come to the unhesitating conclusion that the confession is true. As it has been pointed out, this procedure will practically effect the same results as a rule requiring proof of the voluntary character of a confession, inasmuch as though these decisions require evidence of the truth of the confession and not of its voluntary character, the truth of voluntariness may not unreasonably, though not necessarily be inferred where the truth of the confession is established. I hold on the argument which has been advanced before us that the confession was properly admitted in evidence by the learned Sessions Judge.

It was next argued that the learned Magistrate in recording the confession acted so irregularly that we ought not to give effect to the confession. It was said that the learned Magistrate did not ask the accused person how long he was in custody. I quite understand that where an accused person has been in the custody of the Police for a very considerable time, that circumstance itself ought to put the Magistrate on his guard in recording the confession of an accused person; but in this case the learned Magistrate was aware of the fact that the accused person was in the custody of the Police, if at all, for one night. I myself think that the learned Deputy Magistrate should have recorded the confession of the accused person as soon as he was produced before him. If he had done so, it would not have been open to the accused person to put forward the story that while he was in the Hajat after his arrest he was tutored to make a confession by some body or other. It is greatly to be deplored that the learned Deputy Magistrate waited till the next morning to record the confession of the accused person but that is entirely a different matter. The question which we have to decide now, is, is the confession to be excluded because the Magistrate did not ask the question how long the accused person had been in Police custody? In the case of Queen Empress v. Narayan (1901) 25 Bom. 543 upon which reliance was placed, the Court found that although the accused person was in fact arrested on the 11th of June, the Police records showed, and falsely showed, that he had been arrested on the 21st of June, on which date he made the confession. The Bombay High Court thought that in a case where the confessing accused had been for ten days in detention by the Police, obviously the first question which a Magistrate should put, in order to satisfy himself that the confession will be a voluntary one, is, how long has the accused been in custody of the Police. Each case must be decided on its own facts, and I can see no resemblance whatever between the case of Queen Empress v. Narayan (1901) 25 Bom. 543 and this case. Section 164(3) of the Criminal Procedure Code forbids a Magistrate to record a confession, unless upon questioning the person making it he has reason to believe that it was made voluntarily. The form of questions is not indicated in the Code, for the obvious reason that each case has its own peculiarities. In the present case the accused person was actually produced before the Magistrate as soon as he was arrested and was produced before him the next day. I am unable to hold that the confession should be ignored on the ground that the Magistrate did not ask him how long he was in Police custody. I do desire to point out, however, that it was highly irregular for the Magistrate to have perused the alleged statements of the accused made to and recorded by the Police Officer before proceeding to question the prisoner. This was pointed out in Emperor v. Radhe Halwai (1902) 7 C.W.N. 220 and was repeated in Jogjiban v. The Queen Empress (1908) 13 C.W.N. 861. It is a matter of considerable surprise to us that these decisions were ignored by the Deputy Magistrate in question.

It was next argued that the learned Magistrate should have asked the accused person his motive for making the confession. In support of this argument a dictum of Roe, J. in the case of Jiubodhan v. The King Emperor (1917) I. Pat. L.W. 388 was relied upon. In that case the Court found, first that the confessions were made in response to an inducement by the Police to the effect that nothing would happen to the persons making the confession if they gave information, secondly that they were recorded in the presence of Police Officer by a Magistrate who failed to comply with the provisions of Section 164 of the Criminal Procedure Code, and thirdly that the confessions were inconsistent with each other and with the evidence recorded in the case. On these findings the Court refused to take the confessions into its consideration. Mr. Justice Roe in the course of his judgment said as follows: "In the second place, as I understand Section 164(3), a Magistrate is bound to question the accused closely as to his motives in making a confession, and if he fails to do so, he has no jurisdiction to say that he is satisfied that the confession is voluntarily made." If Mr. Justice Roe intended to lay down the proposition which he in fact did, as a proposition of law, then I respectfully dissent from it. If, on the other hand, he laid down the rule as a rule of prudence then I entirely endorse it. As I have pointed out, the Criminal Procedure Code lays down very emphatically that no Magistrate shall record any confession unless upon questioning the persons making it he has reason to believe that it was made voluntarily. Now, each case depends on its own facts and just as there are cases which on the face of them attract the suspicion of a Magistrate, there are others which do rot attract the suspicion of the Magistrate. It is quite impossible to lay down any hard and fast rule on the subject. The Court must in each case satisfy itself that the Magistrate honestly believed that the confession is a voluntary one. If a Court is so satisfied, then the failure on the part of the Magistrate to put any particular question to the accused person would not involve the rejection of the confession. The rules laid down in the various cases to which we have been referred are rules of prudence rather than rules of law, and though it is very necessary that the Magistrates in this country should, in recording the confessions, observe these rules, it must be remembered that these rules have been formulated in order to enable the Magistrate to decide whether the confession is a voluntary one or not, and where the Court is satisfied that there was nothing in the circumstances connected with the making of the confession to attract the suspicion of the Magistrate, the confession will stand, though the rules were not strictly observed.

It was next argued that a comprehensive question, such as was put by the Magistrate in this case, is not sufficient. It is, I think, desirable that a Magistrate in recording the confession should put various questions to an accused to enable him to decide whether the confession is a voluntary one or not; but, as I have said before, there is nothing in law which lays down that a Magistrate cannot satisfy himself as to the voluntariness of the confession by putting a single question to the accused person. In my opinion, if the accused person had not retracted his confession, there would be no ground whatever for not acting on the confession made by him.

But, as I have pointed out, the confession has been retracted; and, the question which we have to decide is whether we ought to convict the accused person on the confession which he has retracted. Now, there is no rule or law which compels us to raise an inference of improper inducement from the mere fact that a confession is retracted; but, as a rule of prudence, the Courts in this country have consistently declined to act on a retracted confession, unless after consideration of the whole evidence in the case the Court is in the position to come to the unhesitating conclusion that the confession is true, that is to say usually unless the confession is corroborated by credible independent evidence.

I propose then to consider whether we are in a position to come to the unhesitating conclusion that the confession upon which the prosecution relies is true. The learned Sessions Judge has come to the conclusion from the evidence in the record and from the surrounding circumstances that the confession is true. I have come to the opposite conclusion. It is, therefore, necessary to deal with this subject with some care, and I propose to deal with the whole confession in order to see whether the confession has received corroboration from independent evidence.

The confession runs as follows:- "I had in my house Rs. 500 (in cash) tied in a piece of cloth in an earthen jar (Chukka) which was put underneath the ground below the hearth. Out of the sum I paid Rs. 260 to one creditor named Haricharan he is a Munshi in the coolie depot." There is no evidence whatever to show that he did in fact conceal Rs. 500 underneath the ground or, that he paid Rs. 260 to one creditor named Haricharan. It may be urged that with the appellant in the dock and his wife dead it is impossible for the prosecution to prove that he did in fact conceal Rs. 500 underneath the ground; that is undoubtedly so. But, it was possible for the prosecution to prove that he did in fact pay Rs. 260 to a creditor named Haricharan. I lay particular stress on this point because the burying of the money underground, as will presently appear, is an important part in the confession. The confession goes on as follows:-

I had taken out of it Rs. 100 for the celebration of the marriage ceremony, Rs. 140 was left as balance. It is two months since I last concealed it underground. I had settled the marriage of my daughter with the Rs. 100 which I had taken out, besides I had an extra sum of Rs. 100 which I had kept for the marriage." Stopping here for a moment, it is sufficient to point out that he gave his brother Rs. 125 and not Rs. 100 as is alleged by him in the confession; but the point is a small one and may be ignored. The confession then goes on as follows:- "The Barat party came to my place the day before yesterday at 8 p.m. There was a dancing party in the Barat. A large number of persons were witnessing the dance. I was working inside the house, I felt thirsty and asked my wife to give me water to drink. After fifteen minutes she said that she would give me water on her coming back, and she went away towards the place where the boy was dancing. But I felt very thirsty and so I followed her. She went into the courtyard of Mistiri. I remained standing there. The Mistiri whose name was Mangar Kahar, was also witnessing the dance. He left the place and went into the house. Suspicion arose in my mind. I went into the house and then I found Mangar Mistiri having sexual intercourse with my wife in the verandah. I did not raise any alarm and came back silently." This is an important part of the story and undoubtedly constitutes, so far as the confession is concerned, one of the motives for the murder. Now, there is not only no corroboration of the incident to which the confession refers; but the learned Sessions Judge has recorded a distinct finding to the effect that this portion of the story is untrue, and was probably introduced by him to save himself. The view of the learned Sessions Judge is that some friend with superficial knowledge of law must have advised the accused that he would be acquitted of murder, if he showed that his wife had been unfaithful. The conclusion of the learned Sessions Judge is, in my opinion, a remarkable one. There was no obligation whatever on the accused person to make any confession to the Magistrate. It is only when a person is seized with remorse after committing a crime that he at all thinks of making a confesion of his crime, unless indeed any inducement is offered to him. We will assume in this case that no inducement whatever was offered to the accused person. Why then should he make, any confession at all to the Magistrate if at the same time he thought it necessary to invent a story in order to escape the penalty of law? I know of no authority which enables a Court of law in the case of admission or confession to ignore a portion of such admission or confession and act upon what remains of that admission or confession. It is settled law that an admission or confession must be taken and considered as a whole. It is, however, sufficient to say at this stage that this portion of the confession which undoubtedly according to the confessing accused person constituted one of the motives for the crime, has not only not received any corroboration from the evidence in the case, but has been distinctly found to be false by the learned Sessions Judge. The confession then goes on as follows:- "I had to send back the Barat party the following morning. I then asked my wife to come with me and point out the money as I had to send back the marriage party. Then my wife and I went to the spot where the money was buried." This again is at variance with the evidence of Bhawan Kahar. Bhawan Kahar''s evidence is that he wanted Rs. 20 from his brother as he wanted to give each of the girls Rs. 20 at the time of the going away of the brides, and that his brother told him that he had no money with him. The evidence of Bhawan Kahar establishes beyond a shadow of doubt that the accused person stayed in his house after the Barat parties had gone, and did not leave his house till about 4 or 4-30 P.M., his wife having preceded him shortly after 2 P.M. The confession suggests that he went to his house with his wife before the Barat parties actually left Bhawan''s house and that he went to his house in order to get the money which he might give to his daughter at the time of the going away. The confession is, therefore, in material respects at variance with the evidence for the prosecution. In the next place, as the confession later on makes it clear, he had some money with him. According to the evidence of Bhawan Kahar, he had Rs. 40-8 in his pocket at that time. His brother asked him for Rs. 20. It is unlikely that he should have gone to his house to fetch Rs. 20 buried under the Chulha, when he had Rs. 40-8 in his pocket. The confession then runs as follows:- "I found the spot where the money was buried dug out and there was no money". So far as this portion of the confession is concerned, the prosecution claims that there is corroboration in the circumstance that the Police found that there was disturbed earth on the floor under the Chulha. I can hardly regard it as corroboration, although this is a circumstance on which the prosecution is entitled to rely. "Then I asked my wife what had become of the money. She said that she did not know it." I said that "None but you and me have got an entrance into the house, who else will then take the money? I asked her twice but she said that she knew nothing about the money." She then said "that she would tell the truth. She then said that with the money she had purchased a pair of Goraon of silver, as pair of Angutha and Haikal all made of silver from his maternal uncle Rangi Kahar. But she further said that she was tutored by her uncle not to confess it at first, but that when she would be vexed much, she should say so." Now, it was open to the prosecution to examine Rangi Kahar on this point. Rangi Kahar, the maternal uncle of the deceased, was in fact examined on behalf of the prosecution. He was in no way friendly to the accused person, and would most certainly have taken to heart the fact that his niece had been murdered by the appellant. If in point of fact, the deceased had purchased the jewelleries through her uncle Rangi Kahar, it is incredible that the prosecution while examining Rangi Kahar, should have missed the point that his evidence could have corroborated the confession on a material point; but there is nothing in the evidence of Rangi Kahar which lends any support to the confession. The inference is irresistible that Rangi Kahar, if he had been asked, would have failed to support this portion of the confession. The confession then runs as follows:- "I was much annoyed at this-Why had she spent the money without my permission. Thereupon my wife laid down upon the Charpoy, but she was awake. I then went to cut her throat with a knife. She then got up and began to raise an alarm. I then took up a Tabal (axe) that was kept on the Patwat of the room." Stopping here for a moment, it may be pointed out that the axe which was produced in Court, and which was alleged to be the instrument with which the accused person killed his wife has not been identified as the property of the accused person. There is absolutely no evidence on the record on this point, and it is impossible to hold that the axe with which the murder is alleged to have been committed is the property of the accused person. It may also be pointed out that the Police made no attempt to find out whether any one heard the cries of the deceased. The confession then proceeds as follows:- "I struck her with it and she fell down on the Khatia. I dealt her several blows with the axe on the neck and then she died. 1 then started for the Police Station to lodge information. I locked up the room in which was the corpse of my wife, and shut the door of the verandah. I started with my son. I met an old Dusadhin in my way, I said to her, ''Look here, I have killed my wife. I am now going for good. You will please take care of my son.'' Thence I went to my brother. He having seen my Dhoti stained with blood, enquired of me what the matter was, I said to him ''I have killed my wife. Here is my son, keep him in your custody." I gave him what I had left with me out of Rs. 200, and told him that I was then leaving the place for good, that there was no hope of my escape and that he would take care of my son. In my way I met one Chhatu Teli''s wife to whom also I said that I had killed my wife and that I was going to the Police Station. Thus I proceeded raising an alarm and telling similar things to lots of persons. I met Laloo constable as well. I told him the same thing. Thence I went to Mangtu Seth. I purchased cloth from his shop and owed some money to him. I asked him for my account. He replied that some pice was due from me. I told him that 1 had paid the pice. Then he replied that it would be due from my brother then, and that it would be realized from him. I did not speak to him about my killing my wife. I then went direct to the Police Station and having arrived there myself lodged the information. I shall not make any further statement." The learned Sessions Judge strongly relies upon the statements which he did make to various persons on the way from his house to the Police Station and he comes to the conclusion that there is strong corroboration in the evidence of the persons, whose names are mentioned by him in the confession, of the truth of the confession. It is necessary then to see whether the view of the learned Sessions Judge can be supported. The first person mentioned by the accused person is an old Dusadhin to whom he is alleged to have said "Look here, I have killed my wife. I am now going for good. You will please take care of my son." The old Dusadhin is Kalpha Dusadhin, the fifth witness examined on behalf of the prosecution. Her evidence is as follows:- About 4 p.m. on the day of occurrence I came home and saw Dewan pass with his infant child and I greeted him. After we had passed he turned and said he was going away and asked me to look after his son and daughter. He went in the direction of his brother''s house. At 5 P.M. a crowd collected at Dewan''s house and I heard that Koili had been killed". It is quite clear from the evidence of Kalpha Dusadhin that she never knew anything about the occurrence until 5 P.M. when she heard that Koili, that is to say, the wife of the accused person had been killed. It was one thing to say that he was going away, and quite another thing to say that he had killed his wife and that the Dusadhin would have to take care of his son. It is quite clear that the Dusadhin did not infer from what the accused person stated to her that he had killed his wife. Next, he is alleged to have admitted to his brother that he had killed his wife. ''The evidence of Bhawan Kahar and Sheo Lochan does not support the confession on this point. Bhawan distinctly says that the accused told him that some one had killed his wife. It is quite true he also said this, "We shall meet in Hell," but it is impossible to come to an inference of guilt from the expression used by him. Sheolochan, it may be pointed out, is a friend of his brother, and was present in the house of Bhawan when Dewan came to him after the alleged occurrence. The evidence of Bhawan Kahar and Sheolochan is undoubtedly at variance with the confession. The next person mentioned in the confession to whom he is alleged to have confessed is Chhatoo Teli''s wife; but she has not been examined in the case. The next person mentioned in the confession is one Laloo constable who is probably the same person as Latoo Ram, the ninth witness examined on behalf of the prosecution. His evidence is as follows:-

"On the Monday of occurrence I was at my door and saw accused passing in the direction of the thana. He said Ham Jahannum Jate Jai Ganga." I called to him but he said no more. Later the Police came and I heard that his "wife had been killed." Now, there is no implication of guilt in the expression used by him to Latoo Ram, and it is clear that Latoo Ram himself did not think that he had committed any crime. The expression is capable of a perfectly reasonable explanation, and I can hardly regard the expression "Ham Jahannum Jate Jai Ganga" as corroborating the confession when he says that he confessed his guilt to Laloo constable. In this connection it is important to remember that the evidence of conduct of an accused person, unless it is incompatible with his innocence, is, as was pointed out by Sir Lawrence Jenkins in Jagjibany. Emperor (1908) 13 C.W.N. 861 in fact a make-weight and nothing more, and that care should be taken that it may not have an exaggerated effect. As was pointed out in that case it depends upon temperament, surroundings, and other circumstances as to how a man would act in a particular situation, and that all these combine to form a most fallacious basis for assured conclusions. The expression used by the accused person is, at best, an equivocal one, and you cannot have corroboration of that which requires corroboration by evidence which itself requires explanation. These are all the persons mentioned in the confession; but certain other persons have been examined by the prosecution, and it is necessary to examine their evidence with a view to see whether they, or any of them, in any way, corroborates the confession made by the accused person. I have already dealt with the evidence of witness Nos. 1 and 2 examined on behalf of the prosecution. The third Witness is Mossamat Etwaria Kaharin, the wife of Bhawan. She says definitely that she heard the accused telling her husband that some one had killed his wife, and that he was going to the thana to lodge information. There is clearly a conflict between her evidence and the confession. The next "witness is Deodhari Teli who says that the accused was passing his house and was repeating "Zanana ke mar delin." In his cross-examination he said that when he saw Dewan pass he was sitting at the door of his stall in the Bazar, that it was a Bazar day and that many persons were about. With reference to this evidence the learned Sessions Judge says as follows:- "This important evidence may perhaps have less weight when it, is remembered that the witness was busy in the market, and that it would be quite possible for him to make a mistake between the first and third persons of the verb. The third person would be Mar Delak or Mar Delan. This is important, as it is accused''s case now that he found his wife murdered by some one and ran to the thana to report it." The seventh and eighth witnesses are important from this point of view. The seventh witness is Mahadeo Prasad, and the eighth witness is Gazafir Hussain. They were both seated at the Marwari Library, when the accused Dewan passed the road and Salaamed Mahadeo Prasad. It is the evidence of both the witnesses that what the accused person said was addressed to Mahadeo Prasad. Mahadeo Prasad''s evidence is this: "I was sitting at the Marwari, Library about 4 P.M. about three months ago when this accused Dewan passed on the road and salaamed to me. He said he was going. I said "where." His answer was "Hamesha ka waste jate hain." Thence he went towards the bazar. He had on yellow clothes. From his articulation I took him to be intoxicated." The expression used by the accused person to him, according to the evidence of Mahadeo Prasad, in no way lends any corroboration to the confession because, as I have said before, you cannot rely upon an expression which itself requires explanation as corroborating a fact which requires corroboration. Gazafir Hussain, however, supports the prosecution on this point. His evidence is as follows:- "He salaamed to Mahadeo Babu and said: I have finished one person and now am off for the rest of my life.'' It may be pointed out that he is the only witness who does support the prosecution on this point. Now, both Mahadeo Prasad and Gazafir Hussain are undoubtedly independent witnesses, and it is remarkable that what the accused person did say to Mahadeo Prasad was interpreted by them in two different ways. He is, however, the only witness who supports the prosecution, and when all the circumstances connected with the confession are considered and critically considered, it is impossible to rely upon the evidence of a single witness, and to hold that the confession has received corroboration in material parts.

In my opinion, the confession is in material respects at variance with the evidence for the prosecution, and it is quite impossible to say that the truth of the confession has been established. It is admitted that if the confession be excluded from our consideration there is not sufficient evidence on the record on which we can support the decision of the learned Sessions Judge. It may be that the whole conduct of the accused person is very suspicious, but then, as has been pointed out, more than once, "suspicion" however strong can never take the place of "legal proof". In my opinion, the evidence in the case falls far short of the proof which we would require in a case of this nature. I would allow this appeal, set aside the conviction and the sentence passed on the appellant, and direct that he be set at liberty forthwith. The reference will stand discharged.

Adami, J.

I agree.