Suker Dusadh and Another vs Emperor

Rowland, J.—The appellants, Suker Dusadh and Bisesar Dusadh have been found guilty of dacoity by the unanimous verdict of a jury and sentenced u/s 395, I.P.C., Suker to six years'' rigorous imprisonment and Bisesar to four years'' rigorous imprisonment.

The dacoity was committed on the night of 9th January 1940 in the house of one Lukhar Mahto in whose service Suker had been employed as a labourer. As the appeal does not lie on the facts, the only question we have to consider is whether there was evidence to support the conviction and whether there was any misdirection affecting the merits. Bisesar had made a confession to a Magistrate implicating himself as well as Suker. The appellants have been convicted on this confession together with the identification of Suker by Eamsaran Koeri one of the eye-witnesses and of Bisesar by the same Eamsaran and another eye-witness Basdeo as having been present and taking part in the dacoity. Bisesar however in his statement at the trial said that he had made a confession at the instance of the police who beat him severely and tutored him to make that statement before the Magistrate. In his charge to the jury the Sessions Judge said "it is for you to decide whether this statement was made voluntarily or not;" and he continued:

If you believe the confession to have been voluntarily made and if there is no reason to disbelieve the statement, it can be used in evidence against him (Bisesar) and he can be convicted thereon.

As regards Suker, he cautioned them against adopting the confession of Bisesar for the purpose of convicting this accused unless there was also satisfactory corroborative evidence implicating him. To this last observation no objection could be or has been taken, but we have been asked to hold that the Sessions Judge misdirected the jury in telling them that they were to decide whether Bisesar''s confession was made voluntarily or not. It is the duty of the Judge u/s 298(1)(c), Criminal P.C.,

to decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given.

In Khiro Mondal Vs. Emperor, the Judge had left it to the jury to determine whether the confession was or was not voluntarily made; or, in other words, whether it was admissible. On appeal, it was held that he was guilty of a serious error of law. The Judge in that particular case had also misdirected the jury in telling them that the onus of proving that a confession was not voluntary lay on the accused and that "it is not of course possible to prove such allegations even if they were true" and this was held also to be a serious misdirection.

In Kashim Ali and Others Vs. Emperor, it was said:

The position must now be accepted as settled that the Judge could not leave it to the jury to decide whether a confessional statement was voluntary or not. It was not open to the jury to reject the statement or accept the same in evidence. The Judge was required to decide the question of admissibility of the statement on a decision come to by him that it was voluntary or not; after the Judge''s decision on the question of admissibility of the confessional statement, depending on its voluntariness, has been given, which was binding on the jury as a decision on a question of law, the Judge was required to ask the jury to say whether the confessional statement (if it was held to be voluntary) was; true or not, upon the materials before the Court, and so give their verdict on the question of fact whether the statement was true or not.

On the other hand, in another case of the Calcutta High Court decided in Kishori Kishore Mishra Vs. Emperor, , the Judge had assumed to himself the function of deciding whether the confessions relied on by the prosecution were voluntary or not. He told the jury his conclusion that there was no reasonable ground for surmising that the confessions were not entirely voluntary. He continued as follows: "You are bound by my decision on this point." The jury, he said, must proceed on the assumption that no undue influence was used, that the accused persons were warned and so on, and would then have to decide whether the accused persons were telling the truth when they confessed and what weight should be attached to their confessions. This was held to be a serious misdirection.

It was said that although the Judge has to decide the question of voluntariness of a confession in its bearing upon admissibility, still after he has admitted it the jury are entitled and must be allowed to consider for themselves the question of voluntariness in its bearing upon the truth of the confession. In Kasimuddin and Others Vs. Emperor, the Sessions Judge had told the jury that it was for himself to decide whether the confession in the present case was voluntary. "I have decided" he said,

that it was voluntary, that warning was duly given to the accused as required by law, that enough time was given to him to ensure that the confession'' was really voluntary and that he made it of his own accord without any inducement. You should take all these points as settled and then decide what value should be attached to the confession and whether the accused was telling the truth when he made it.

The High Court observed that the sessions Judge had committed a serious misdirection in telling the jury to take all those points as settled, thereby withdrawing from them an issue of fact relating to the truth of the confession. It was observed that to the extent of the admissibility of the confession, it was for the Judge to decide whether the confession is voluntary, but that when it came to considering the truth of the confession, the two questions of truth and voluntariness were mixed up, and so they said:

If the Judge has to decide the question of voluntariness in its bearing on admissibility there is no reason why the jury should not consider the question of voluntariness in its bearing on the truth of the confession.

They said:

It would be quite correct for the Judge to admit the confession for the consideration of the jury and leave it to the jury to decide whether the police officer should be believed or not.

(in a case where the police officer had denied tutoring which the accused alleged.)

These successive decisions of the Calcutta High Court may well have left the Sessions Judges in a state of some anxiety as to what line they could take in charging a jury as to the voluntariness of a confession without danger of their direction being treated as a misdirection and in 1935 a Bench of three Judges including the Chief Justice dealt with the question in Badan Ali v. Emperor (36) 63 Cal. 833 which may be taken now to have settled the law so far as Courts subordinate to the Calcutta High Court are concerned. The view taken is in general accordance with that in the preceding case last cited. The learned Chief Justice cited with approval the words of Coleman J. in Burton v. The State AIR 833, an American case, in which it was held that:

Whether confessions are voluntarily made or not, we hold is a question of law, to be determined by the Court from the facts, as a condition precedent to their admission. Having been declared competent and admissible, they are before the jury for consideration.

In weighing the confessions, the jury necessarily consider those facts upon which their admissibility as having been voluntarily made depends. The jury may therefore determine that the confessions are untrue or not entitled to any weight upon the grounds that they were not voluntarily made. The case from which those observations were cited was an American case presumably decided on the principles of English common law, or else on statutes which are not before us.

So far as the principles of English law are concerned, we may get some guidance from Ibrahim v. The King AIR 1914 P.C. 155. Lord Sumner delivering the judgment of their Lordships referred to the positive rule of English criminal law that no statement by an accused is admissible against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. Reference is next made to the actual objections raised by the appellant, and it was observed that "logically these objections all go to the weight and not be the admissibility of the evidence."

As to the first of these observations in the judgment of their Lordships, a question of some difficulty may arise whether in India the burden lies on the prosecution to prove that a confession was voluntary or on the accused to prove the contrary. It was said in Queen-Empress v. Basvant (01) 25 Bom. 168 that the law in India as laid down in Sections 24 to 27, Evidence Act, is not the same as in England and that in India to require affirmative proof that a duly recorded and certified confession was free and voluntary, would not be consistent with the terms of Sections 21 and 24, Evidence Act. It is perhaps not necessary to go into the question further than to say on the one hand that the point falls to be determined in India on the terms of the statute rather than on supposed principles of law prevailing in another country and on the other that if the procedure laid down in Section 164, Criminal P.C., has been strictly followed and if the Magistrate in accordance therewith has to the best of his ability satisfied himself that the statement being made to him is voluntarily made without any influence of fear or hope that is strong evidence to support a finding that the confession is voluntary even if it be assumed that the burden to prove that fact is on the prosecution.

As regards the second observation of Lord Sumner that the appellant''s objections were of a nature to go rather to the weight than to the admissibility of the evidence, it is interesting to compare Sections 24 and 25, Evidence Act, and to note that whereas in Section 25 the statute enacts that no confession made to a police officer shall be proved the words in Section 24 are quite different. The section says that a confession made by an accused person is irrelevant in a criminal proceeding if, etc. The difference of language between the two sections seems to run parallel with the distinction drawn by Lord Sumner between matters going to the weight and going to the admissibility of the evidence and from this point of view it may fairly be said that it is not inconsistent that the Judge should take upon himself as Section 298 (1)(c), Criminal P.C., requires him to do, the decision, for the purpose of admitting a con. fession into evidence, that it was voluntarily made, while at the same time leaving it to the jury for the purpose of determining what weight should be given to it to decide both whether it was true and whether it was voluntary. This conclusion, I think, is in accord with that arrived at in Badan Ali v. Emperor (36) 63 Cal. 833.

From this point of view, there is no misdirection in the charge to the jury in the case before us. So far as his own duty in the matter of the confession was concerned, it may be presumed that the Judge had satisfied himself that the confession was voluntary before allowing it to go to the jury. There was not a scintilla of evidence except the statement at the sessions trial of the accused himself to indicate that he had been induced to make this confession by any fear or hope held out to him by the police officer.

On the contrary, the prosecution had proved that Bisesar was arrested on 20th January and sent to jail, that while in jail and therefore not accessible to any police influence he had more than once asked and reminded the jailor to arrange for his statement to be taken by some officer. A statement was taken from him by a police officer on 29th Jaauary and he appeared before a Magistrate and made a confession to him on 1st February 1940. The record of the confession shows that the Magistrate took all proper precautions and the Magistrate has himself been examined as a witness. There can be no doubt that the Sessions Judge rightly allowed this confession to go to the jury.

It was contended then that the confession having been retracted, no weight should have been attached to it even against the person making it still less as against the co-accused, and authority for this contention was sought in Queen-Empress v. Rangi (87) 10 Mad. 295, a case which on a difference between two Judges was decided in accordance with the opinion of a third Judge. The decision of that case does not appear to have been followed in succeeding cases of the same High Court, for instance Queen-Empress v. Raman (98) 21 Mad. 83 or Kesava Pillia v. Emperor AIR 1929 Mad. 837; nor does such a view appear to have been taken in the other High Courts. The view generally accepted has been that laid down in Emperor v. Kehri (07) 29 All. 434, a decision repeatedly followed both in that Court and in other Courts.

In this Court there is a series of cases from Guja Majhi v. Emperor AIR 1917 Pat. 247 to Emperor v. Mangru Kisan AIR 1938 Pat. 108. The view here taken accords with the Allahabad view and that of the Lahore High Court in Pratap Singh v. Emperor AIR 1925 Lah. 605. There are some cases in the Calcutta High Court in which it is suggested that a conviction ought not to be founded on the confession of its maker alone without material corroboration, but this is not a rule of law. As far back as in Queen v. Jhurree (67) 7 W.R. Cr. 41, it was held that a voluntary and genuine confession is legal and sufficient proof of guilt and this decision has never been overruled though it has sometimes been said that the rule of prudence is in favour of seeking corroboration of a confession which has been retracted.

In the latest decision shown to us Emperor Vs. Kutub Bux, , it was said that there was no rule of law that an accused person cannot be convicted on a confession made and subsequently retracted without independent corroborative evidence. The point, however, hardly arises here for against both the appellants there was in evidence not only the confession of Bisesar but the direct evidence of the identifying witnesses to whom I have already referred earlier.

There is no defect therefore in the charge and the verdict cannot be successfully attacked in this appeal. As regards the sentence I am unable to regard the sentence of six years on Suker and four years on Bisesar as being in any way excessive, and

I would dismiss the appeal.

Shearer J.

I agree.