TMI Blog1962 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... is son Babu Singh were not cordial. In fact, Mehtab Singh had complained to the police authorities that he apprehended danger from his son. The prosecution case as it was laid before the trial court was that on December 22, 1960, the two appellants entered the house in which Mehtab Singh lived. They caught hold of Mehtab Singh while he was sleeping on a cot. Babu Singh sat on his chest and throttled him while his companion held the victim down. The dead body of the victim was then packed up in a gunny bag and concealed in corner. Babu Singh who was familiar with the house and its contents forced open a locked trunk and removed a bag containing ₹ 1200/-. With this bag the culprits left the house Babu Singh taking care to lock the house before they left the scene of the offence. With the money thus obtained, Babu Singh made several purchases. Some days later Babu Singh with the help of Babu Lal removed the dead of his father to the house of Babu Lal where it was put underground in a kotha. That, in brief, is the prosecution case against the appellants. The discovery of this offence was made in a some what unusual manner. Babu Lal was arrested in connection with another theft ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 7 years for the offence under s. 201. Babu Lal was sentenced to imprisonment for life for the offence under s. 302 read with s. 34 and 7 years for the offence under s. 201. 7. The sentence of death imposed on Babu Singh was submitted to the Punjab High Court for confirmation. The two appellants also preferred appeals challenging the order of conviction and sentence passed against them by the trial court. The High Court heard the said matters together and concurred with the view taken by the trial court. The High Court has held that the confessions were duly recorded by the magistrate, and that they were voluntary and true. The High Court took into account the fact that the said confessions had been retracted and so it proceeded to examine the question as to whether they were corroborated. In dealing with this question, the High Court took into account the discoveries made as a result of the Dagduas made by the two appellants and it held that the said discoveries corroborated the two confessions. That is how the order of conviction and sentence imposed by the trial Court on the two appellants were confirmed. It is against this decision that the appellants have come to this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement on which the High Court appears to have acted in dealing with the question as to whether the confession had been duly recorded or not. When the magistrate was cross-examined in regard to the recording of these confessions, he admitted that the confessions had in fact not been recorded by himself. The two confessions are Exhibits P.P. and P.Q. and he stated that they were recorded by his Ahlmad Reader. He was asked whether he remembered which confession was recorded by which Reader and he added that he could not say who wrote Ex. P.Q. or P.P. The magistrate explained why he adopted this course by saying that the Dagduas were recorded by the Reader as a verbatim record in urdu was required and he was not well conversant with Urdu writing. Then he was asked whether he made a separate memorandum of the statement as required by S. 364(3) and he stated that he had not made such a memorandum. He was further asked whether he remembered the sequence in which the Dagduas were recorded and he stated he did not remember the sequence. He was asked whether he remembered where appellant Babu Singh was kept when Babu Lal made his confession and where Babu Lal was kept when Babu Singh m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven evidence as a witness for the defence. It is very much to be regretted that in a case of this kind where the appellants are charged with murder the prosecution should not have examined the scribes who actually recorded the confessions. It is conceded by the Magistrate that he was not familiar with the writing of Urdu and that indeed is his justification for not recording the confessions himself. In such a case, it was of utmost importance that the scribes should have given evidence and an opportunity should have been given to the appellants to test by cross-examination, the prosecution claim that their confessional Dagduas had been duly and properly recorded. That is the safeguard to which the appellants were undoubtedly entitled. That is another aspect of the matter which has to be borne in mind in dealing with the points raised before us by Mr. Rana. 12. If the Magistrate under whose supervision the confessions were recorded has not complied with the provisions of s. 364(3) of the Code of Criminal Procedure, can it be said that the said confessions are not proved or that the making of the confessions and their recording is vitiated so as to make them inadmissible. The deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself, he shall be bound as the examination proceeds to make a memorandum thereof in the language of the court or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the magistrate or judge with his own hand and annexed to the record. It also says that if the magistrate is unable to make a memorandum as required he shall record the reason of such inability. It would thus be clear that if a confession is recorded not by the Magistrate himself as required by s. 364(1) it is necessary that the magistrate should make a memorandum as the examination proceeds and the memorandum should be signed by him. It is conceded that in the present case, the confessions were not recorded as required by s. 364(1) and yet the safeguard prescribed by s. 364(3) has not been complied with. Mr. Rana contends that the failure to comply with the requirements of s. 364(3) makes the confessions inadmissible. 14. In dealing with this question we must consider the provisions of s. 533 of the Code. It is on the provision of this section that Mr. Khanna, for the respondent, relies. Section 533(1) lays down that if any Court before which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and that is the alternative argument which has been urged before us by Mr. Rana. 16. Now, in dealing with the question as to whether the confessions are voluntary or not, we have to bear in mind some broad features of this case. The first important circumstance on which Mr. Rana relies is that though both the appellants made discovery Dagduas on January 22, and though it appears that on that date the substantial part of the investigation was really over, the investigating officer kept both appellants in police custody until February 6. It is true that an investigating officer is entitled to keep an accused person in his custody if it is essential to do so for the purpose of investigation subject to the conditions prescribed by the Code of Criminal Procedure; but where it appears that the investigating officer has kept an accused person in the police custody even after a substantial part of the investigation is over, the detention of the accused person in police custody is a matter which has to be borne in mind in considering the question as to whether the confessions substantially made by the accused persons are voluntary or not. That is one important fact in favour of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police custody. This Court has always emphasised the fact that before confessions are recorded the magistrate who records the confessions should satisfy himself that the accused person's mind has been freed from fear or other complexes developed during police custody and generally 24 hours at least should be allowed to lapse before a confession is recorded. There can of course be no inflexible rule in the matter. In each case the magistrate was to decide how much time should be given to the accused before his confession is recorded. In the present case, having regard to the fact that the appellants were kept in police custody for a long period it seems to us that the time given to them to consider whether they should make the confessions or not is wholly insufficient and unsatisfactory. That is another fact on which Mr. Rana is entitled to rely. 18. Then we have the third unusual feature in the case and that is that the magistrate who recorded the confessions has taken part in assisting the investigation by attesting recovery memos in two cases. Mr. Khanna contends that there is no legal prohibition against a magistrate who has attested the recovery memos from recording a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the case we are not prepared to uphold the finding of the High Court that the confessions made by the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore, excluded from consideration it is impossible to sustain the charge of murder against either of the two appellants. In a case where the charge of murder was founded almost exclusively on the confessions it was necessary that the High Court should have considered these relevant factors more carefully before it confirmed the conviction of the appellants for the offence under s. 302 and confirmed the sentence of death imposed on Babu Singh. In our opinion, if the confessions are left out of consideration, the charge of murder cannot be sustained. The result is the conviction of both the appellants for the offence under s. 302 read with s. 34 is set aside and consequently the sentence imposed on them for that offence is also set aside. 20. That takes us to the question whether the alternative charge under s. 201 can be held proved. This charge is held established against Babu Lal substantially because of the recovery of the dead body in his house. That recovery is evidenced by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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