Mst. Bhagan vs State of Pepsu

Gurnam Singh, J.—Mst. Bhagan aged 25 was tried for the murder of Mst. Bholan. She was convicted and sentenced to transportation for life. She appeals against her conviction and sentence.

Prosecution story briefly is as follows:

On 1-10-1953 at about 9 a.m. P.W. Sisu saw the deceased entering the cattle compound Jointly owned by the husbands of the deceased and the accused. Mst. Bhagan convict was also seen by him at the same time following the deceased into the same compound. Phula (P.W. 7) who was going to his fields saw the accused coming out of that compound at about 9 or 10 a.m. The convict appeared to him to be perplexed and her hands were blood-stained.

On his inquiry she confessed that she had murdered Mst. Bholan and requested him not to disclose this to anybody else. Saying this, the appellant ran in the direction of her house. The witness then proceeded towards the village Dharmshala and gave information to Hari Singh P.W. The latter advised him to collect the village lambardars. Consequently, Phula contacted Hans Ram, Tara Chand and Ram Singh (P.Ws.) and conveyed the same information to them. These four persons went to the place of occurrence while Phula proceeded to his field.

On arrival at the spot they found the dead body of Mst. Bholan lying there. About half an hour later the convict and Ram Kala (P.W. ) husband of the deceased also reached that place. The appellant then confessed her guilt before I hem. She requested them to save her from the natural consequences of her act. She also disclosed to them the motive for the murder.

She stated that she was carrying on intrigue with Raghunath (P.W. ) and that the deceased did not like this and was scandalizing her. Before making this confession, according to the prosecution story, she had already confessed her guilt to Ram Kala, the husband of the deceased, in the fields where he was working. The lambardars asked Ram Kala (P.W. ) to report the matter to the police but he declined to do so for the reason that his children were crying. The four persons mentioned above then sent Dhirja (P.W. ) to contact Raghunath brother of Ram Kala. After an hour or so Dhirja brought Raghunath from the fields. As advised he proceeded to police station Narwana at a distance of about 13 kos and made a report of the occurrence on the same evening at 7 P.M.

Head Constable Ved Prakash arrived in the village on 2-10-1953 at 3 a.m. He found Hari Singh, Hans Ram, Tara Chand (P.Ws.) and others sitting by the side of the dead-body. F.O. Dhaluram was deputed to guard the dead-body. On that morning at 7 a.m. he prepared the inquest report and by 7-30 a.m. had despatched the dead-body, for the purpose of autopsy. He took into possession some blood stained earth from the spot.

On the same day at 12-15 p.m. he sent for the accused and arrested her. On interrogation she made a statement as a consequence of which a blood stained gandasa and blood stained skirt were recovered at her instance. The gandasa was found under a heap of fuel wood in the same compound in which the murder was committed and the skirt was found hanging on a peg in the house occupied by the convict and other members of her family. These articles were put into parcels which were sealed. The investigating officer recorded the statements of the witnesses and carried on his investigation till next day.

On 3-10-1953 he took the convict along with lambardars, 2/3 constables and other prosecution witnesses including Hari Singh, Ram Singh, Hans Ram, Tara Chand, Phula and Sisu to Jind. From this place they were taken to Narwana police station. At Narwana their statements were recorded under S. 164, Criminal P.C. and they were allowed to go away on 5-10-1953. At Jind on the same day (3-10-1953) the convict was produced before Shri Mohan Lal Magistrate I Class (Judicial) who remanded her to judicial custody until 12-10-1953. Head Constable Ved Prakash, however, kept her in his own custody till 7 p.m. when he produced her before Executive Magistrate for the purpose of getting her confession recorded.

It may be mentioned here that he made no request to the Judicial Magistrate for recording her confession when she was produced before him for the purpose of remand. Sardar Shamsher Chand, Magistrate (Executive) recorded her confession at 7 p.m. at his residence. After recording confession the Executive Magistrate handed over the person of the accused to the police and gave no order in writing about her custody. However, the convict along with lambardars and other witnesses mentioned above were taken to police station Narwana. The convict was kept there the whole night. Ram Singh and Hans Ram lambardars also remained there. Some time next day she was sent to the Judicial lock-up.

Dr. J.R. Khastri conducted autopsy on the dead body of Bholan. He found 12 incised wounds on the person of the deceased. He found several injuries in the region of the head. Death, in his opinion, was due to shock and haemorrhage on account of injuries to vital organs. The deceased had about five months pregnancy. The Doctor found undigested food material in her stomach. In his opinion, the deceased must have taken food couple of hours before death. Death was in this case instantaneous.

The convict was questioned by the Committing Magistrate regarding her confessional statements made to the lambardars in the village and to the Executive Magistrate at Jind. She admitted having made those confessions but stated that they were made on account of promise of release made to her by the lambardars and the husband and the brother-in-law of the deceased. It is unfortunate that she was questioned about the extra judicial confession made in the village and judicial confession made next-day before the Magistrate by a single question.

At the trial she was also questioned regarding confession made to the Magistrate. She stated:

Yes. My statement was recorded there in the light of a lamp. I was confined in a Kothri by the police before I was taken to the S.D.M. and the Police threatened me to make the statement.

When further questioned she stated that she made a statement before the Magistrate but she was not informed that if she made a statement it would be used against her. She also denied having made any extra judicial confession in the village. In short, she retracted the confession and denied her guilt.

As a result of investigation she was tried for the murder of Mst. Bholan with the result indicated above.

There is no eye-witness to the murder. Prosecution case entirely rests on the circumstantial evidence and confessions made by the convict. If the judicial confession is voluntary then this is a very strong piece of evidence connecting the appellant with the crime.

In order to make such confession relevant under S. 24, Evidence Act it must be shown that it was made voluntarily by the person accused of an offence. So to base conviction on such a confession the court must satisfy itself that it was voluntary and true. Unfortunately in this country it appears to be well known that the police are in the habit of extorting confessions by illegal and improper means. Confessions obtained in this manner must be excluded from evidence as it is not safe to receive a statement made by an accused person under any influence of fear or favour. I am inclined to the view that the burden of proving the voluntary nature of the confession lies on the prosecution; at any rate the onus, if on accused, is very light.

Section 24, Evidence Act reads 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 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 of avoid any evil of a temporal nature in reference to the proceedings against him.

The word ''appears'' indicates a lesser degree of probability than the word ''proof'' as defined in s. 3 of the Act. It was designedly used by the legislature in the interest of the accused. More often than not, accused is alone in police custody when he is induced or threatened to make a confession. In such cases it is well nigh impossible for him to adduce positive proof in support of such inducement, promise or threat offered to, him by the police. Section 24, therefore, does not require positive proof of improper inducement etc., to justify its rejection. A well grounded suspicion based on facts and surrounding circumstances, therefore, is sufficient to exclude confessions from consideration. It is entirely for the Court to decide whether the confession was voluntarily made and was not the result of inducement, threat or promise.

In the present case judicial confession was not relied upon by the trial court. In support of his conclusion, the learned Judge has given a number of reasons. I agree with his finding.

The convict was arrested by the Head Constable on 2-10-1953 at 12-15 p.m. She remained in his custody till long after the confession was recorded by the Magistrate. He took her to Jind on the morning of 3-10-1953. He was accompanied by the lambardars of the village, the prosecution witnesses and foot constables, to that place. The convict was produced by him before the Judicial Magistrate, Shri Mohan Lal at 2.45 p.m. on 3-10-1953. The Magistrate ordered remand of the convict to judicial custody uptil 12-10-1933. It is significant that no request for recording her confession was made by the Head Constable to the judicial Magistrate.

Instead of taking her to the judicial lock-up the Head Constable disobeyed the order of the Magistrate and kept this young woman in his own custody. He produced her before the Magistrate (Executive), S. Shamsher Chand, on the same day at 7 p.m. It appears that he did not intimate to him that he had already obtained the remand orders for judicial custody. It is obvious that the custody of the prisoner with the Head Constable at that time was illegal. He deliberately flouted the order of the Magistrate (Judicial) in not sending her to the Judicial lock-up.

This must have been done with some ulterior motive. Law is very jealous of the liberty of the subject and does not allow detention unless there is legal sanction for it. Section 60, Criminal P.C. requires a police officer making an arrest without warrant to send such person to the Magistrate having jurisdiction without any unnecessary delay, and S. 61 prohibits the police officer from detaining the arrested person for more than 24 hours. Head Constable, no doubt, produced the convict before the Judicial Magistrate as required by law, but did not obey his orders in sending the prisoner to the judicial lock-up.

As already observed this in all probability was done by him to extort confession out of the prisoner. This confession was recorded at 7 p.m. i.e., beyond court hours and at the house of the Magistrate. Undoubtedly the Magistrate deposed that he had observed all the formalities prescribed by law. It must be remembered that the confessing accused was a young illiterate village woman to whom an inducement for making confession had already been offered in the village by the lambardars and the Panchayat. She was kept under the influence of the same lambardars and the police officer till her confessional statement was recorded by the Magistrate.

I am not convinced that this illiterate woman could have clearly understood the nature of the words alleged to have been used by the Magistrate in warning her. At any rate the parrot-like use of the form used in such cases could hardly have any effect on the mind of a prisoner of such limited intelligence. If the police resorted to obtain confession, as it did in this case, it is almost certain that it would tell the confessing accused the nature of the questions to be put by the Magistrate and would make her believe that actually they meant nothing. Magistrate did not tell her that she was not to be returned to the police custody after recording her confession. In fact he returned her to the police custody and gave no order in writing that she was to be sent to the judicial lock-up. The police officer in turn kept her whole night in the police station under his influence and that of the lambardars of the village. She was sent to the judicial lock-up some time next day.

In these circumstances, in my opinion, it was not difficult for the police officer to work upon the feelings of the prisoner. It has been frequently observed that confessing accused on no account should be Returned to police custody after the confession is recorded. This practice is wholly improper and is always likely to damage the prosecution case. If an accused person knows that he is to return to police custody after making confession he would be inclined to make false confession at the instance of the police. In such a case the court must very carefully examine the confession and the surrounding circumstances under which it was obtained in order to satisfy itself if it was voluntary and true.

In this particular case the police officer obtained the confession of the prisoner by undesirable tactics and in my opinion, played fraud upon the Executive Magistrate by keeping him in dark regarding the order of the Judicial Magistrate remanding the prisoner to judicial custody. This act of the police officer is highly undesirable and indeed condemnable. To conceal his illegal acts he deposed at the trial that he had obtained the remand of the person of the accused from the judicial Magistrate. In cross-examination he attempted to explain that he could not produce the prisoner before the judicial Magistrate as the Sessions Judge was inspecting the Court. This explanation to my mind is not true.

Evidently he produced the prisoner before the Judicial Magistrate to obtain a remand from him. He made no request at that time for recording the confession of the prisoner. It is, therefore, clear that the explanation offered by him at the trial is only to conceal his own illegal acts. For producing the prisoner at the house of the Magistrate, he explained that he (Magistrate) was on tour and had returned to the head-quarters by 3 p.m. train.

The evidence of the Magistrate does not show that he was out of head-quarters. S. Shamsher Chand when questioned stated. "The Court work was already over when I recorded the statement. Court hours in those days were from 10 a.m. to 4-30 p.m." It appears from this also that the Magistrate was in station on that day.

It has been repeatedly observed that the confessing accused should be produced during court hours for recording confessions. It is a highly undesirable practice to produce accused for recording confessional statement after court hours and at the house of Magistrate. The Magistrate in the present case did not give a note that he gave time to the prisoner to think over the matter. Under these circumstances I am not convinced that the prisoner made the confession voluntarily.

It is true that the Magistrate deposed that he was satisfied about the voluntary nature of the confession. He admitted that he did not record the questions put by him to the prisoner and the answers given by her. It is no doubt true that the law does not require that questions and answers must be recorded. It is, however, desirable that they should be so recorded so that the trial Court and the appellate court could judge from the questions put to the prisoner and answers given by him that he was making a voluntary confession. This aspect of the case was considered by a bench of Allahabad High Court in Shambhu and Another Vs. Emperor

It is the Magistrate''s duty to satisfy himself in ''every reasonable way'' that the confession is made voluntarily and it is further the imperative duty of the magistrate to record those questions and answers by means of which he has satisfied himself and that the confession is in fact voluntary. It is only by recording those questions and answers prior to taking down the story of the accused that the Magistrate recording the confession furnishes data which enable the Court of Sessions and the High Court or the Chief Court to arrive at the same conclusion as that to which the recording Magistrate has come, as regards the voluntary nature of the confession. Without supplying these data or materials it is impossible for the trial court (i.e. the Court of Session) or for the High Court to form any estimate as to the voluntary nature of these confessions. The Court of Session or High Court cannot merely accept the ipse dixit of the Magistrate recording the confession as to its being voluntary.

The genuineness of the confessions and the fact of its being voluntarily made are matters which are within the exclusive province of the Court of Session and of the High Court and neither the Court of Session nor the High Court can blindly accept the readymade opinion of the recording Magistrate on these points without having before it materials from which it could arrive at an independent opinion on these crucial questions on which the fate of the accused hangs.

Section 364, Criminal P.C. requires the confession to be recorded in the form of questions and answers if such questions are put to the prisoner. The Magistrate undoubtedly put questions to the prisoner but he did not follow the procedure laid down by law. In my opinion, the legislature intentionally made this provision.

Failure to follow this procedure makes it impossible to distinguish the portions of the statement voluntarily made from those which were obtained from the confessing accused by cross-examination. It is, therefore, clear that a departure from this practice makes the whole record of confession defective. I agree that ordinarily the confessing accused be left to narrate the story without any interference by the Magistrate. But if questions are put and consequently some answers are elicited it is desirable that those questions and answers should be recorded as required by law. The violation of the procedure however, may not be fatal in view of the provisions of S. 533, Criminal P. C. provided the accused is not prejudiced by the irregularity. It is, however, proper and just that any question put and. the answer elicited must be recorded by the Magistrate. For the various reasons stated above I am clearly of the opinion that the judicial confession must be excluded from consideration.

Let us now examine the extra-judicial confessions. Ordinarily, it is unsafe to base conviction on an extra-judicial confession. It is not possible to ascertain the exact words and the language used, by the confessing accused. Therefore, it is not of such a nature as to entitle it to any weight. This aspect of the case was considered by a Division Bench of this Court, in - ''Ram Singh v. State'', Criminal Appeal No. 102 of 1951, D/- 28-6-51 (Pespu) (B), in which the leading judgment was written by my learned brother. He observed

Evidence in respect of extra judicial confession, particularly when it is entirely oral, should be strictly scrutinized and no reliance should be placed upon it unless the court is in a position to pronounce with certainty upon the exact words used by the accused.

With this observation I respectfully agree.

Apart from this it appears from the prosecution evidence that the confession in the village was the result of inducement and promise offered to her by lambardars of the village. P.W. Ram Singh who is also a lambardar, stated:

I did not ask Mst. Bhagan to tell the truth. Panchayat was talking to her. It is correct that I stated before the Magistrate I Class, Narwana that I asked Mst. Bhagan to tell the truth. The P.Ws. and others asked Mst. Bhagan to speak the truth even to the police and that may save her.

Out of the prosecution witnesses to whom this confession is alleged to have been, made, at least two were lambardars. They are P.Ws. Ram Singh and Hans Ram. In my judgment the words used by the lambardars in obtaining the confession from the prisoner import both threat and promise. Presumably the prisoner knew that the police must come to investigate the case.

She was told that she could be saved if she told the truth to the witnesses as well as to the police. These words do not merely mean exhortation to tell the truth, they are also susceptible of interpretation that she was told that it would be bettor for her if she told the truth. In that case she could be saved. This, to my mind, clearly amounts to inducement coupled with threat and promise contemplated by S. 24, Evidence Act. As such this confession must be ruled out of consideration.

Learned Counsel for the state urged before us that the lambardars were not ''person in authority'' and, therefore, any confession made to them under these circumstances could not be ruled out. I cannot persuade myself to agree with this contention. Expression ''person in authority'' should be interpreted liberally. If such a person is interested or is concerned with the investigation of a case it would be sufficient to give him that authority. Village lambardars and zaildars are part of investigation machinery. It is their duty to report cognizable offences and also to join the investigation of such offences. Their position is, therefore, such that they would be considered as persons in authority. Apart from this, the position of a lambardar in village is such as to appeal to a villager as a person who is able or is likely to be able to promise him a pardon.

In - ''Kutab Ali v. Crown'', 14 Pun Re Cr 1911 (C), a strong bench of the Punjab Chief court consisting of Sir Arthur Reid Kt., Chief Judge, and Rattigan J. observed,

Held also, that a promise held" out by a zaildar is a promise ''made by a person in authority'' within the meaning of S. 24, Evidence Act, and that a confession made to a zaildar in consequence of such promise is inadmissible in evidence.

With great respect I entirely agree with the observation made by the learned Judges.

It may also be mentioned, here that there is no distinction between the duties of a Zaildar and that of a lambardar. Both the village dignitaries have to perform almost similar duties towards the administration.

Similarly in - ''Mustafa v. Crown'', 35 Pun LR 359 (D), a bench consisting of Sir Shadi Lai, Kt. C. J. and Hilton, J. held,

An extra judicial confession made to a lambardar and a sufedposh is inadmissible in evidence.

There is a string of authorities of Punjab High Court as well as of other High Courts in support of this view. It is unnecessary to quote all of them here.

Learned Counsel for the State mainly relied on an authority reported in - ''Bhojo v. Emperor'', AIR 1234 Siud 172 (E), where it was observed by the bench

A person in authority must be a person who stands in such relations to the accused as to imply some power of control or interference in regard to his prosecution. The belief of an accused that that the persons to whom he made a confession were ''persons in authority'' is not sufficient to bring them within the term. The test is: Had the person authority to interfere with the matter? Whether a certain person is a person in authority would largely depend upon the circumstances of each particular case. Mukhias to whom confession was made by accused were held to be not persons in authority.

Learned Counsel was unable to tell us what were the functions and duties of Mukhias in the province of Sindh. As such, therefore, it cannot be said with, certainty if a Mukhia in that province is or is not a person in authority. On the contrary, as already observed, the duty of a lambardar here is to report cognizable cases and also to join the investigation of such cases. He is a village dignitary, who has influence with the local police. As such, therefore, he is in such a position as to induce a villager to the belief that he could earn a release or pardon to him.

At any rate I prefer to follow the consistent view expressed by the Punjab Chief Court and. High Court in a number of authorities. I am, therefore, of the view that this confession should also be ruled out of consideration.

Apart from this, the conduct of the investigating officer in extorting the judicial confession from the prisoner and the method adopted by him to achieve this end makes me more suspicious about the extra judicial confession. It would not be difficult for an investigating officer of this type to induce the village lambardars and others to support such confession. It is significant that the lambardars and other witnesses who have been produced to support it were taken by the Head Constable along with him first to Jind and then to Narwana on 3-10-1953. They remained with him till 5-10-53 when their statements were recorded by a Magistrate under S. 164, Criminal P.C. The witnesses were, therefore, pinned down to a particular position from which it was difficult for them to get out.

It was urged by the Learned Counsel for the State that only Ram Singh P.W. supported the fact of inducement, promise or threat. A solitary statement of this witness, according to him, should not be believed. It is difficult to agree with this contention. The other witnesses were not questioned on this point. Ram Singh himself was not cross-examined by the prosecution to show that he was not telling the truth. In fact Ram Singh had already stated at the earliest in a statement recorded under S. 164, Criminal P.C. that he had asked Mst. Bhagan to tell the truth. When questioned by the defence, he admitted this fact at the trial. Therefore, the position of Ram Singh even at that time was the same.

It therefore, cannot be said that he made this statement in order to help the prisoner. Apart from this, I have no reason to doubt the testimony of this witness on this point. He is in no way interested in the convict nor there is an iota of evidence present on the record to show that he made this statement in order to help her.

We are then left with extra judicial confessions made to Phula and Ram Kala (P.Ws.). The statement of Phula does not appear to be natural and believable. His name does not appear in the first information report. It is admitted that he was present at the spot when Raghunath left for the police station. It is not even mentioned in the first information report that the prisoner was seen coming out of the compound with blood-stained hands by Phula and that she confessed before him.

For the first time he was examined by the police on 2-10-1953 at 8 or 9 p.m. He was the first man, according to the prosecution story, to give clue to the murder and it appears that he was the last man to be examined by the police. Even in the Judicial confession made by the prisoner, Phula''s name and the factum of confession to him is missing. Like other witnesses he remained almost in police custody from 3-10-53 to 5-10-53 when his statement was recorded under S. 164, Criminal P.C. He has made several improvements on that statement. The convict entreated Phula to keep the matter a guarded secret, but soon after disclosed the whole affair first to Ram Kala and then to others including the lambardars. This appears to be highly unnatural.

He saw the woman coming out of the compound with her hands full of blood. She confessed to him that she had murdered Mst. Bholan. In spite of that the witness did not go inside the compound to see if it was a fact. Dhiraj P.W. was sent to call Raghunath by the village Lambardars and others. Even he (Dhiraj) did not convey to him at that time that the deceased was killed by the convict. It is, therefore, clear that the murderer of the deceased was not known to any one upto that time. This fact also raises suspicion against the evidence of Phula. Phula deposed that after confessing to him, the convict ran in the direction of her house. It is in evidence that she had to pass by the house of Hari Singh P.W. in order to go to her house.

It is further in evidence that Hari Singh was taking bath in the lane when Phula soon after gave the information to him. It is strange that Hari Singh himself did not see the convict proceeding to her house in that condition. I, therefore, do not believe that Phula''s evidence is true of that he saw the prisoner coming out of the compound in the manner stated by him and that she made the confession to him.

The only other person to whom extra judicial confession was made is Ram Kala P.W. , husband of the deceased. He was present in his fields at about 9 or 10 a.m. when the convict along with two children of the witness went to the fields and informed him that she had murdered his wife. There is no mention of this confession in the first information report in spite the fact that Raghunath was sent for reporting the matter from the spot where Ram Kala was present. Actually if such a confession had been made to him, I am sure it would have been mentioned in the report.

The witness does not appear to be a person of high moral character. Raghunath deposed that he was carrying on intrigue with the deceased and it was connived at by this witness. When questioned the witness himself stated that he did not resent the illicit connections of Raghunath with his wife. It is highly improbable that after committing a murder the convict would run to the husband of the deceased and disclose the entire matter to him. It is in evidence that she did not arrive at the spot along with Ram Kala. If she had gone to the fields and accompanied Ram Kala back to the village I would have expected her to reach the place of occurrence along with him. It is in evidence that she arrived there half an hour later.

In case such a confession was made to Ram Kala, he would naturally secure her. It is a strange story that in this case in spite of all these confessions none of the witnesses including the lambardars made any attempt either to secure the convict or put a guard on her movements. For all intents and purposes she remained a free agent and could abscond if she had so desired. One thing, however, is significant which needs to be mentioned is that Ram Kala hesitated to report the matter to the police.

In dealing with the oral extra judicial confession the court must be very careful and should be slow to act upon it unless such confession was proved by evidence of most reliable character. Apart from this, the judicial as well as extra judicial confessions were retracted by the convict at the earliest possible opportunity.

Assuming that these confessions were voluntary, as they were retracted by the prisoner, it is necessary to look for an independent corroborative evidence. The weight to be attached to such confessions depends upon the circumstances under which they were made and later retracted including the reasons given by the prisoner for retracting them. The circumstances under which these confessions were obtained from the convict have already been narrated in detail. In my opinion, in the circumstances of this case, it is not safe to act upon the retracted confession as it is not possible to come to the unhesitating conclusion that the confessions were voluntarily made and were true. It is, therefore, absolutely necessary to look for independent corroborative evidence in order to make them the basis of conviction. It is now well settled that without sufficient and substantial corroboration in material particulars it is not safe to convict the accused on retracted confession alone.

This view found favour with their Lordships of the Supreme Court in - Puran Vs. The State of Punjab (I), (P), where it was observed:

It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone.

In another authority of the Supreme Court reported in - '' Muthuswami Vs. State of Madras, , it was held,

No hard and fact rule can be laid down regarding the necessity of corroboration in the case of a retracted confession in order to base a conviction thereon. But apart from the general rule of prudence where the circumstances of a particular case cast a suspicion on the genuineness of the confession it would be sufficient to require corroboration of the retracted confession.

Yet in another case, their Lordships view was that conviction based on retracted confession alone was opposed to law and could not be upheld.

This view was expressed in - Arjuna Lal Misra Vs. The State, wherein it was observed,

Conviction based solely on the retracted confession was opposed to law and could not be allowed to stand.

It is, therefore, clear from the perusal of this authority that no conviction can be based on retracted confession alone. this Court is bound by the expression of views of their Lordships of the Supreme Court.

It is also proper to note here the observations made by Straight J. regarding retracted confession. In - ''R. v. Babu Lal'', 6 All 509 (FB) (I) the learned Judge observed that retraction of a confession is,

An endless source of anxiety and difficulty to those who have to see that justice is properly administered.....I have said, and I repeat now, it is incredible that the extraordinarily large number of confessions, which come before us in the criminal cases disposed of by this Court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented........the retraction follows almost invariably as a matter of course.

Similarly in - ''R. v. Thompson'', (1893) 2 QB 12 (J), Lord Cave made the following very pertinent observations in this connection,

I would add that for my part 1 always suspect these confessions, which are supposed to be the offspring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner''s guilt is otherwise clear, and satisfactory, but when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with a desire, born of penitence and remorse, to supplement it with a confession - a desire which vanishes as soon as he appears in a court of justice.

These observations made by eminent Judges are of great importance while considering, the question of retracted confession.

It is common knowledge, as observed by Lord Cave, that evidence of confession is only imported when the other evidence against the accused is weak. With respect I entirely agree with the observations made by Straight J. and Lord Cave.

It was also urged by the Learned Counsel for the State that the prisoner gave different reasons before the Committing Magistrate and the trial court for making the confession. He, therefore, contended that the reasons given by the prisoner were not true. I do not see any substance in this contention. The Committing Magistrate put a compound question to the prisoner questioning her about the extra judicial confession as well as judicial confession in a single question. The prisoner, therefore, might not have understood the true import of the question. It is not desirable to put such a question to a person in the dock.

Before the Committing Magistrate she stated that Ram Kala, Raghunath and the lambardars obtained a confession from her by offering her inducement and promise. At the trial she stated in answer to a question about judicial confession alone, that it was extorted out of her under threat and pressure of police. I do not, therefore, see any irreconcilable discrepancy in the statements made by the prisoner. As already observed, the extra judicial confession was extorted by the lambardars by offering her inducement, threat and promise. The reply given by the prisoner before the Committing Magistrate, therefore, was in answer to a question regarding extra judicial confession. The contention raised by the State counsel is, therefore, devoid of any force.

Prosecution alleges that the convict made a statement and in consequence of that statement blood stained gandasa (weapon of offence) was recovered from the same compound where murder was committed and a blood stained torn skirt was recovered from the house hanging on a peg.

Attar Singh lambardar of a neighboring village deposed that he arrived in the village of the accused at 8 a.m. The accused was already present with the police at that time. On interrogation by the police she made a statement as a consequence of which these recoveries were made. Head Constable Ved Prakash who is the investigating officer, on the other hand, stated that he sent for the accused for the first time at 12-15 p.m. and arrested her. She was interrogated and this interrogation led to the recoveries. It is very clear that the statements of the two witnesses are conflicting. According to Attar Singh convict was interrogated at breakfast time and she then made a statement leading to the recoveries. This fact is directly contradicted by the investigating officer who deposed that she was arrested at 12-15 p.m., and after that she was interrogated and made a statement in question. These facts create grave doubt about the genuineness of these recoveries.

Even the statement made by her leading to the recoveries, in my opinion, is not admissible, if we accent the testimony of Attar Singh. According to him, the prisoner was already present with the police when he arrived at 8 a.m. Head Constable, therefore, must have already interrogated her and if she was so willing to tell everything as the prosecution wants us to believe, she must have made a statement to him regarding weapon of offence as well as the skirt. She was again questioned in the presence of P.W. Attar Singh and others. At that time the investigator knew what precisely she was going to tell him. So procuring of the witnesses who signed the confessional statement was a mere farce. The whole story appears to me to be artificial.

In these circumstances it is not possible to say that the recoveries took place in consequence of the statements made by the prisoner to the Head Constable in the presence of Attar Singh and others. It is not the first case of this kind when the recovery of weapon of offence has been made in this manner. This type of cases are now too common and it is felt that in almost every case the police resort to this method of obtaining the evidence against the person accused of an offence. I have already had an occasion to deprecate this method of manufacturing evidence.

Section 27, Evidence Act was never designed by the legislature to encourage such proceedings. I do not mean to lay down that use of S. 27 is totally prohibited. Genuine cases must deserve consideration. In the circumstances of this case I am of the view that it is highly doubtful if the recoveries took place in the manner alleged by the prosecution.

Apart from this, the gandasa was recovered from an accessible place in the compound. This place was jointly owned by the husbands of the convict and the deceased. Before the actual recovery a large number of persons had an occasion to visit that place and several of them including police officials remained present there before actual recovery. There was, therefore, ample opportunity to plant the weapon. The weapon might have been already detected by the persons present in the compound for such a long time. Even if we assume that the gandasa was recovered from that place and it was blood stained in my opinion, it does not lead us to any definite conclusion in connecting the accused with the crime. The ownership of the gandasa is not traced to the prisoner. It is not identified to be a weapon of offence. We are then left to consider the presence of blood on it. The prosecution is unable to say that the blood on this weapon belonged to the same group as that of the deceased.

If it had been so the value of this evidence would have been immense to the prosecution. The discovery of blood on the weapon, therefore, is not such which can be associated with the deceased. This evidence, in these circumstances, is of no value to connect the accused with the crime. It is not even possible to hold definitely that it is the weapon of offence. The gandasa was taken into possession by the police on 2-10-53. It was received by the Chemical examiner on 14-10-53. There is no evidence on the record to show in whose custody the parcer remained in the interval. In case prosecution wants to rely on this piece of evidence, it is necessary to prove that the parcel remained intact from the time it was taken into possession to the time it was received by the Chemical Examiner. To prove this the prosecution must produce each person in whose custody the parcel remained in this interval. This link is missing. For this reason also this evidence must be ruled out of consideration.

As far as the recovery of skirt is concerned, Learned Counsel for the State conceded that it was not of much value. It was recovered from a house in possession of several persons. It was not found concealed. There is no evidence regarding the extent of blood found on this garment. There is also no evidence to show that this skirt belongs to the convict and that she was wearing it when she was seen coming out of the compound. Apart from this, there is nothing extraordinary in finding blood on such garment of a woman. This recovery, therefore, also is of no assistance to the prosecution to-bring home guilt to the appellant. In order to justify the inference of guilt the circumstantial evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This test, in the circumstances narrated above, is not supplied by the recovery of the gandasa or of the skirt.

The prosecution story, as given at the trial, does not appear to be genuine. If it is to be believed, the convict was mentioned as the murderer in the first information report. The investigating officer arrived at the scene at 3 a.m. He found all the important prosecution witnesses present at the spot. He did not interrogate any one of them at that time. The police officer knew that she had made a confession to those witnesses who were present by the dead body. It is strange that he did not question any one of them. This fact leads me to the conclusion that the first information report oven might have been recorded afterwards, though there is no positive evidence present on the record to reach that conclusion, except the circumstances mentioned above.

Again in spite of the fact that the culprit was named. Head Constable Ved Prakash made no arrangements to secure her person or even to put guard on her to prevent her from absconding. For the first time he called her from her house at 12-15 p.m. on 2-10-1953. From these circumstances it appears to me that it was during investigation that he for the first time suspected the appellant to be the murderer of Mst. Bholan. Otherwise there is no reason or satisfactory explanation given by the prosecution for not securing the person of the prisoner or guarding her movements. It is significant that this investigating officer recorded the statements of the four witnesses including the lambardars before whom she had confessed, between 3 P.M. to 7-30 P.M. If it was known that the prisoner had already confessed to them. I should have expected him to record their statements at once, especially so when they were present near the dead body at the time of his arrival in the village, at 3 A.M. This he did not do.

This fact again leads me to the inference that they were made witnesses of extra judicial concession after the arrest of the accused.

The only other relevant evidence relied upon by the prosecution is that of P.W. Sisu, who saw the convict following the deceased into the compound at about 9 A.M. In my judgment this evidence, even if it be believed to be true, does not connect the accused with the crime. This compound was jointly owned by the husbands of the convict and the deceased and they were daily making use of it. Therefore, the visit of the convict into that compound that morning was not abnormal and, in my opinion, is a neutral factor. After all, Sisu did not stop there to see if the convict had remained in that place or had gone back from it. It, therefore, cannot be said that she was present in that compound till the commission of murder.

Apart from this, Sisu''s name is conspicuous by its absence from the first information report. Like P.W. Phula he also appears to have been introduced later. The witness was kept by the police, in a way, under restraint from 2-10-53 to 5-10-53. He was first taken to Jind and from there to Narwana Police Station where his statement was recorded under S. 164 Criminal P. O. It was after this that he was allowed to return to his village. The witness admits that he did not disclose this fact to anybody before making a statement to the police. This conduct is not natural.

The prosecution case regarding motive for the murder is supported by Ram Kala and Raghunath husband and brother-in-law respectively of the deceased, Raghunath was carrying on intrigue with the deceased with the knowledge and at the connivance of his brother Ram Kala. This shows how morally low both these brothers are. Both of them did not hesitate to improve upon the original prosecution story in order to suit their ends.

At the trial, he introduced a quarrel between the deceased and the convict about 20 days prior to the murder. He also introduced a new fact at the trial inasmuch as he stated that the convict kept silent when prosecution witnesses informed him about the confession made by her before them. This important fact which had relation to her conduct was never mentioned by him in the first information report. Likewise he also stated for the first time at the trial that the deceased had seen him making overtures to the convict about 15 days before the incident.

In the same manner the confession made to Ram Kala as well as the entreaties made by the convict to the lambardars and all others present there were not mentioned in the first information report. In these circumstances, in my opinion, these two witnesses do not inspire any confidence and I cannot persuade myself to believe their testimony. Assuming that their testimony is true on this point, in my opinion, it does not supply adequate motive for the convict to commit the murder. There was no immediate cause for doing so. Both of them lived in the immediate neighborhood and daily used the same compound. In fact in the first information report it is mentioned that they lived jointly. At any rate it is clear that they were immediate neighbors. There was, therefore, always ample opportunity for the convict to commit the crime, if she had so desired and if this was the motive for the commission of this offence.

On the other hand the deceased was not a woman of virtue. She was openly carrying on intrigue with her brother-in-law. In cross-examination defence suggested that she was killed by her husband P.W. Ram Kala and in fact he was first put under restraint by the police. It was however, denied by him. It may be mentioned here that his hesitancy to report the matter to the police raises a suspicion against him. There is, however, no proof to hold him responsible for the murder. This may or may not be true. On account of the misconduct of Mst. Bholan, her husband, her brother-in-law or even any other person may be interested and may have a reason to do away with her. This possibility, specially in absence of clear evidence connecting the accused with the crime, cannot be ruled out.

For the reasons stated above I am clearly of the opinion that the prosecution has failed to establish the guilt of the appellant. I, therefore accept her appeal, set aside her conviction and order her acquittal.

Chopra J.

I agree.