Tulsi vs State

Shivdayal, J.—Both the appeals are being decided together.

In the early hours of September 24, 1959, Mishri and Tulsi lay in wait and as soon as Balakdas passed by Tulsi gave him a Lohangi blow and Mishri 3 blows with his pharsa. Balakdas sucummbed to his injuries.

Both the appellants have been convicted u/s 302 read with S. 34 of the Penal Code and sentenced to life imprisonment.

Chimna P. W. 1 and Motiya P. W. 2 are the two witnesses who saw the accused near the injured Balakdas at the time of the occurrence. Chimna stated that he knew the two accused for a number of years. On the day of the occurrence he had just got up from his bed when he heard cries of Balakdas. He came out of his house and proceeded towards the direction from which the cries were coming. At about 25 paces from his house he saw Balakdas lying on the ground and at about 5 steps from it were standing both the accused. Each of them had something like a stick in his hand. The witness reached near Balakdas and found him dead. His throat had been cut and one of his legs was completely cut off. This statement is fully corroborated by Motiya P. W. 2, who also lived in the same vicinity and reached the spot immediately after Chimna. This witness also saw the accused standing near Balakdas who had fallen down after receiving injuries. Both the witnesses were cross-examined but there is nothing to show why they should not be believed. There is no indication or suggestion in the cross-examination of either as to why they would fasely implicate the appellants. Shri Sharma, learned counsel for the appellants, has been unable to attack the veracity of these witnesses. It is remarkable that these witnesses did not state to have seen the actual beating. This only points towards their truthfulness. The trial Judge has relied on their statements and, I have no doubt, rightly. Even in the memo of appeal before us the appellants have not attacked the impartiality of these witnesses although there is a vague statement that villagers got them involved in this case out of spite. The statements of of these two witnesses are by themselves sufficient to uphold the conviction.

The next day of the occurrence, that is, September 25, 1959, both the appellants went to the Sub-Divisional Magistrate and confessed their guilt. When they actually reached his court room the Magistrate had arrived. They awaited his arrival. Tulsi related the matter to Chhitar Ali, the Magistrate''s orderly. When the Magistrate arrived they made clean brest of their guilt before him. The Magistrate recorded their confessions one by one and took their thumb impressions. Each of them stated that the relations between their family and Balakdas had been strained and the latter had beaten the members of their family and also threatened them. The accused then decided to settle their account with him one way or the other and so they way laid him. Balakdas''s attention having caught them, he struck a Lohangi blow to Mishri in his leg. Balakdas tried to run away but Tulsi gave a Lohangi blow and Mishri gave three pharsa blows to him. Thus there was concurrence in the confessions of both. These confessions were retracted at the trial.

It is urged by Shri Sharma that the confessions cannot be considered as evidence because it does not appear from them that the Magistrate had complied with the formalities prescribed in Ss. 364 and 164 of the Cr. P. C. It does not appear that the Magistrate told them that he was a Magistrate, that they were not bound to make confessions and that their confessions could be used as evidence against them. Nor did the Magistrate record a memorandum at the foot certifying his satisfaction that the confessions were voluntary. Reliance is placed on AIR 1936 253 (Privy Council) (2), Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , Sarwun Singh vs. State, AIR 1957 637, Ram Singh Vs. State, and Sardar Miya vs. Emperor AIR 1937 N. 257.

It is quite true that from the confessions it does not appear that any questions were put to them in the beginning nor is there any certificate as to the Magistrate''s satisfaction. The question is whether because of these irregularities the confessions are in-admissible. In the peculiar circumsances of this case my answer is in the negative. This is a case where the accused without being arrested by the police went of their own accord to the Magistrate and got their confessions recorded by him. It is not that the accused came from the police custody. It is not insignificant that they were two in number and both came together. They are cousins. There can be no doubt whatever that they were not under the influence of the police nor did the police come in contact with them until after their confessions had been recorded and they had been sent by the Magistrate to the police together with the recorded confessions. Why I say that this is a genuine case of their reaching the Magistrate''s court without any intervention of or prompting by the police is that before the trial Judge when they retracted their confessions they never complained that the police had arrested them or had induced them to go before the Magistrate. In the Sessions Court they admitted to have made the confessions before the Magistrate but they said that they did so because Babulal, Pooran and Babu had beaten them and asked them to confess their guilt. There is no evidence whatever to support this allegation which is too vague to be taken notice of. When they were beaten and where and who these three persons were was not stated by the accused. In their appeals before us they have complained that the police had also threatened them and made them confess and that the police officers were standing outside the Magistrate''s Court room. This is obviously an-after thought because they never said so in their statements u/s 342 Cr. P. C. to the Session Court. All this leaves no manner of doubt that the confessions were made voluntarily having regard to all the circumstances of the case.

The requirements of S 164 Cr. P. C. are three; The first two are warning, namely, that the accused is not bound to make a confession and that if he does, it can be used against him. The third requirement is that the Magistrate must satisfy himself that it is being made voluntarily. If the Magistrate proposes to record the confession, it is his duty to comply with these requirements. The omission in respect of the first two would not make the confession inadmissible because of the saving provisions contained in Section 29 of the Evidence Act. Even so, the question whether the confession should be relied on or not still remains and is to be decided with reference to the facts of each case. It must be remembered that S. 29 of the Evidence Act does not make any exception as regards the necessity of questioning the accused for the purpose of finding out the voluntary character of the confession. Such questioning is absolutely essential. The defect can however, be cured by adopting the course provided in Section 533 Cr. P. C.

But to me it is quite clear from the language of Section 164 Cr. P. C. that it comes into play only where any statement or confession is recorded by a Magistrate "in the course of an investigation." This Section does not exclude evidence of a confession made to a Magistrate otherwise than in the course of an investigation or after investigation but before the commencement of inquiry or trial. It appears from Section 4 (1) that ''investigation'' really connotes the collection of evidence by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf. It is quite clear from this that a confession made before investigation, is excluded by the Section. Where an accused approaches a Magistrate and Volunteers to make a confession without having been arressted or produced or prompted by a police officer, [Section 164 Cr. P. C. has no application. See Nainamuthu vs. Emperor, 1939 MWN 172 (Cr.) cited in re Ramaswami, AIR 1939 Mad. 138

In AIR 1936 253 (Privy Council) , the Magistrate jotted down certain points on loose chits of paper. Later on, he dictated the confession to his stenographer and destroyed those chits. It was in those circumstances that the Privy Council rejected the confession. In Shiv Bahadur Singh''s case ( 1954 Sc. 322) also the District Magistrate had not recorded any statement; he merely heard what the accused told him and then stepped into the witness box to depose to that fact. Although the statement was non-confessional, yet having not been recorded, and investigation having already started, their Lordships rejected oral testimony of the Magistrate. That dictum does not apply here, because in this case the statements were actually recorded, and moreover, recorded not in the course of investigation. In Sarwan Singh''s case their Lordships observed that at least 24 hours time should have been given for deliberation to the accused before his confession was recorded. That, too, if I may say with utmost respect, was the Rule laid down in a case where an accused was brought from police custody. Here the accused had more than 24 hours'' time after the commission of the offence, for their confessions were recorded at 1 P. M. on the 25th Sept. When a person comes to a Magistrate directly, different considerations apply. The Allahabad and the Nagpur cases are also distinguishable because there the accused were put up for confession after they had been taken in police custody.

As regards Section 364 Cr. P. C the Magistrate appears to have recorded in full the confessions of both the accused made before him and they afixed their thumb impressions. The Statements were signed by the Magistrate. As a prosecution witness the Magistrate stared that he recorded the confessions in full as made by them. Thus the defect was rectified as allowed by Section 533 Cr. P. C.

On principle it is the duty of the Magistrate who records a confession to satisfy himself that it is voluntary. The importance lies in the fact that on the one hand a confession, if voluntarily made, has its own probative value, and, on the other hand, if it is made because of any inducement, threat or promise or any other reason so as not to be voluntary, it has got to be rejected out right. Whether a confession is really voluntary or not assumes significance when it is retracted. The confession forced from the mind by the flattery of hope or by tortures of fear becomes so questionable that no credit ought to be given to it. In each case this has to be judged from its circumstances.

I have already stated the circumstances of this case which satisfy me that the confessions were voluntarily and truthfully made.

The conviction of the appellants being well founded, their appeals are dismissed.

A. H. Khan J.-14 Apart from the reasons stated by my learned brother for maintaining the conviction and sentences, there is one more piece of evidence against the accused. From the statement of Chhittar Ali P. W. 7, who was a peon, it appears that both the accused went to the Magistrate''s Court on 25-9-59 and when he (that is the witness) reached there at 9 A. M., he found both the accused in the Court, one had a Lohangi and the other had a Pharsa. They told him that they wanted to be produced before Sahib (the Magistrate) and that they had killed Balakdas, that later on when the Magistrate came to the Court, he produced both the accused before the Magistrate. He further said that of the two accused only accused Mishri, whom he, pointed out, had told him that they had killed Balakdas. This information given by Mishri to the peon the (P. W. 7) amounts to extant-judicial confession and there is no reason to disbelieve this witness.

I agree that the appeal must be dismissed.