Chowdhry, J.C.
1. Haria and Kirpa were tried by the learned Additional Sessions Judge of Mahasu and Sirmur for having committed criminal trespass into the house of an old man aged 77, named Panu, in village Dilli, tehsil Theog, on the night between 4th and 5th of May 1948, murdered him and committed robbery of his ornaments and household effects. They were acquitted of the charge of murder but convicted of the offences in respect of the other two charges under Section 394 and the second part of Section 451, Penal Code. Each of them has been sentenced to transportation for life and a fine of Rs. 300, or further two years' rigorous imprisonment in default of payment of fine, under the former section, and to three years, rigorous imprisonment and a fine of Rs. 200, or one year's further rigorous imprisonment in default of payment of fine, under the latter, the sentences running concurrently. Both have appealed to this Court.
2. The case presents certain special features the adverse bearing of some of which on the result of the case will be considered at their proper places. The offences are alleged to have been committed in May 1948, the appellants were arrested in September 1948, inquiry against them commenced on 20-12-1948 and they were committed to sessions on 27-7-1949 and eventually convicted as aforesaid on 26-10-1951 The protracted sessions trial was due to the fact that Kanwar Shiv Singh had all but completed the trial when he met with a fatal accident in August 1950, and therefore the Additional Sessions Judge, Sri Ramji Das, who convicted the appellants had to begin the trial de novo from November 1950. Anyhow, the total period from arrest to conviction was over three years.
3. The investigation of the case had an equally chequered career. Gulab Singh (P. W. 46), officer in-charge of the police station at Ghorna within which Dilli lay, received the first information report at 9 A. M. on 5-5-1948 and reached Dilli, a distance of only 2 1/2 miles, at about 10 A. M. the same day, with a large posse of constables and a doctor. He drew up the inquest report Ex. P. V. Section 174, Criminal Procedure Code, requires that the investigation and the drawing up of the report should be done in the presence of two or more respectable inhabitants of the neighbourhood, and that the investigation and the report must be about the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. None of these facts appear in the report although it purports to be drawn up in the prescribed form containing all the necessary columns. It may be mentioned here that the post-mortem, which was performed the same day at 5 p. M., revealed two injuries which were the cause of death and which could not but have been noticed even on a cursory view.
In fact, Gulab Singh admits that he saw the two prominent marks of injury. The injuries were two incised wounds on the left side of the face fracturing the upper and the lower jaw completely. The so-called report was therefore a mere travesty of inquest. The officer had the temerity to admit that he made no entries against all the columns of Ex. P. V. although he knew that it was wrong on his part not do so and that it was necessary to make the entries. He professes to have stayed at the scone of occurrence for 2 or 2 1/2 hours, but the only other thing which he appears to have done was to ask the village patwari to prepare the site plan Ex. P. Z. He did not take the trouble of even supervising the preparation of the plan. In point of fact he admits that ho recorded no statements, made no investigation and prepared no case diary, but handed over charge of the investigation the following clay to S. I. Sher Singh (P. W. 45).
Panu is said to have been murdered in the third and uppermost storey of his house, and boxes and almirahs from which property was stolen are alleged to have been broken open in an adjoining room. Gulab Singh stated that he did not go into every room of Panu's house and did not see any broken locks. The deceased's near relations who were the first to enter his house on the morning following the occurrence, and who profess to have seen at that very time the broken box and almirahs in the adjoining room and to possess knowledge of the things stolen were present there. They were the deceased's niece Ledri (P. W. 12), his daughter Tanglu (not produced), the latter's husband Dhangtu (P. W. 16) and the deceased's heir and nephew Mangni (p. W. 3). Gulab Singh did not take the trouble of asking any of them to give him a list of the stolen property, nor did any of the said relations themselves offer to produce one. It may be stated here that no list of stolen property was given in the first information report although Karmu (P. W. 1), the son of the aforesaid Mangni (P. W. 3), at whoso instance Ratnu lambardar (P. W. 26) lodged the report, had left the scene of occurrence after meeting the aforesaid first arrivals.
Gulab Singh professes to have closed and chained the outer door of Panu's house, to have locked the door and sown a cloth over the lock, and to have kept the key of the lock and handed it over the following day to S. I. Sher Singh (P. W. 45). Incidentally the learned Sessions Judge is wrong in saying that Gulab Singh left the key with Ratnu lambardar. It was only on 7-5-1948 after preparation by Khushi Ram (P. W. 4) of the lists Exs. D-1 to D-5 of the property left in the house of the deceased that Ratnu locked the door and kept the key with himself. Gulab Singh also professes to have posted a sentry outside the door. S. I. Sher Singh, however, states that when he reached the house of the deceased on 6-5-1943 ho found the door chained from outside but without any lock, and he does not speak of any key having been given to him by Gulab Singh. He did not also find any police officer or Government servant posted there.
4. The story of the three locks Ex. P-16, of the broken box and almirahs is also shrouded in mystery. Ratnu lambardar (P. W. 26) says that Gulab Singh handed over the locks to him on 5-5-1948, but there is nothing of the kind in the statement of Gulab Singh himself. On the contrary, Gulab Singh says, as noted above, that he did not see any broken locks. No memo, in respect of handing over of the locks was prepared. There is therefore no writing whereby to check the voracity of one witness or the other.
5. The veracity of S. I. Gulab Singh may be further judged from the following circumstance. Although admittedly he prepared no case diary in respect of the short, but important, investigation held by him immediately after the occurrence, ho stated definitely in cross-examination that ho handed over charge of the investigation to Sher Singh on 6-5-1948 and not on 7-5-1948 During the trial before Kr. Shiv Singh, however, he had stated that he handed over charge on the morning of the 7th of May. The difference is really not material for it is explicable on the ground of lapse of time, but what is noteworthy is that when confronted with his aforesaid previous statement Gulab Singh was rash enough to state that that statement had been wrongly recorded.
Again, he stated daring the trial before Sri Ramji Das that ho did not see any weapon used for murder or any axe lying in the room where the dead body was found. Before Kr. Shiv Singh, however, the witness had stated that the weapon used for murder, a kulhari (axe), was lying near the head of the deceased. When confronted with this previous statement of his, Gulab Singh stated that it was incorrect and that the correct statement was the one which ho had made before Sri Ramji Das. The explanation which he offered for making the said incorrect statement was that the axe was not shown to him when he was deposing before Kr. Shiv Singh. This explanation was falsified when he was confronted with another statement of his in the Court of Kr. Shiv Singh which showed that the axo in question was in fact shown to him. It is further noteworthy that in this latter statement of his before Kr. Shiv Singh he admitted that he did not take into possession the weapon used for murder. It is really difficult to say which is more reprehensible, the masterly inactivity of this police officer, who was in charge of the investigation at the important initial stage, or his disregard for truth.
6. The investigation by the next police officer, S. I. Sher Singh (P. W. 45), was only a little less perfunctory and shortlived. Ho professes to have got the plan Ex. P. Z. prepared under his instructions although it purports to have been prepared by Kalsi Ram on 5-5-1948, a day before he took over charge and two days before he countersigned the plan. Ho admits having examined a number of persons, of whom he remembers only the deceased's niece Mt. Ledri (P. W. 12), but he also did not ask any of the relations of the deceased for a list of the stolon property. Ho further admits that none of them gave him any such list or even told him what had been stolen. He handed over the investigation to one Inspector Sardar Singh after 2 or 4 days.
Alter Sardar Singh the investigation is said to have been in the hands of one other police officer, named Atma Ram, before it was taken up about the middle of June 1948 by Inspector Kishan Chand (P. W. 49), who completed the investigation and challaned the appellants and certain others. The last named police officer submitted as many as four incomplete chalans on 19-9-1948, 4-10-1948, 19-10-1948 and 27-10-1948 before ho submitted a complete chalan on 9-11-1948. There seems to be a practice in this State of submitting a number of incomplete chalans before a complete chalan is forwarded to the Magistrate concerned. Sometimes, the Magistrate is even revailed upon to commence the inquiry or trial on foot of the incomplete chalans and to record prosecution evidence piecemeal as names of witnesses are disclosed in instalments in the various incomplete chalans. This is against law for Section 173, Criminal P. C., contemplates the submission of only one police report, and that when the investigation is completed. The practice also necessarily prejudices the accused in their trial. It must therefore stop.
7. The two police officers Sardar Singh and Atma Ram have not been produced. The latter is still in Himachal Pradesh service. The former is said to have arrested one Dhanna with a sword and sheath and axe, and this Dhanna made good his escape from police custody and is still absconding. The method adopted by Inspector Kishan Ghand of making recovery of certain articles attributed to Haria appellant, e.g., of the gold piece EX. P. 1 from Parma (P. W. 32) and of a gun Ex. P. 12 from Meena Ram (P. W. 52). was arbitrary and without a check. These articles wore not discovered on being pointed out by Haria, but were recovered by the police officer from the possession of the said persons on the basis of information alleged to have been furnished to him by Haria. As to whether any such information was in fact imparted to him by the accused there is only the ipse dixit of the police officer himself. Where property is recovered on being pointed out by, an accused in the presence of respectable witnesses of the neighbourhood, and a recovery memo, is prepared by the police officer concerned and attested by the witnesses, the memo, and the testimony of the witnesses of recovery form material from which it is possible for the Court to arrive at a conclusion as to the genuineness or otherwise of the alleged recovery.
That is, however, not possible where a recovery is said to have been made on information given to the police officer by the accused, especially as in this case, when there is no corroborative evidence in regard to the alleged imparting of information. True, discovery of property on information received from the accused and that on being pointed out by the accused himself fall equally under the exception contained in Section 27, Evidence Act, and therefore escape the mischief of Section 25 of that Act and of Section 162, Criminal P. C., but, unless there is some special reason for recovering the article on an information previously given by the accused, and unless there is satisfactory corroborative evidence in respect of the imparting of such information, a careful police officer who is anxious to prove his investigation as genuine will resort to the other method of recovering the property on being pointed out by the accused himself in the presence of independent witnesses of the locality. Another curious procedure adopted by Inspector Kishan Ghand was to recover the axe Ex. P. 13 and then himself to hold identification proceedings in respect of it immediately thereafter. Such proceedings do not come under the exception contained in Section 27, Evidence Act, since they follow the discovery and do not lead to it. That being so, the oral and documentary evidence relating to such proceedings is barred by Section 25, Evidence Act and Section 162, Criminal P. C. That is why identification proceedings are conducted by Magistrates and in the absence of the police. Not only did the police officer adopt the illegal procedure, but the learned Sessions Judge also admitted the said inadmissible oral and documentary evidence with regard to the identification proceedings.
8. The irregular and irresponsible manner in. which investigation was conducted in the present case has naturally resulted in the creation of considerable doubt as regards the culpability of the appellants, as I shall show presently. The cases of the two appellants may now be taken up. separately. The evidence against them consists of their retracted confessions and of corroboration. of those confessions by recoveries from their possession of alleged stolon properties. In the case of Haria there is the further evidence of his having slept in the house of the deceased on the night in question and of no trace of him having been found, the following morning. As against Kirpa appellant there is the further evidence of his having been seen in the vicinity of the place of occurrence both on the evening preceding and the morning following the night in question.
9. There was considerable argument before me on behalf of the appellants as to the statements in question not amounting to confessions, as to the two confessions being discrepant in material particulars and as to there being no independent evidence in corroboration of the confessions. I do, not, however, deem it necessary to deal with these aspects of the matter, for I agree with the further contention put forward on behalf of the appellants that the confessions were not voluntary. The robbery and murder are said to have been committed on the night between the 4th and 5th May 1948. Kirpa appellant was arrested on. 4-9-1948 and Haria appellant on 8-9-1948. Recoveries at the instance of Kirpa are said to have been made on 6-10-1948 and 7-10-1948, and those at the instance of Haria between 12-9-1948 and 15-10-1948. The two confessions were recorded by Sri Mohan Lal Magistrate first class (P. W. 27), that of Kirpa on 1-11-1948 and that of Haria on 4-11-1948.
The confessions were recorded at Dhali near Sanjauli at a distance of about 14 miles from the judicial lock up at Theog, wherefrom the two appellants were brought for the purpose. As stated above, proceedings started in the Court of committing Magistrate on 20-12-1948. On that Very date both the appellants filed written applications retracting their respective confessions and complaining that the confessions had been brought about as a result of the ill-treatment to which they were subjected by the police. It may be stated here in passing that the learned Sessions Judge in wrong that it was only Haria who retracted his confession on 20-12-1948 and that Kirpa retracted it only on 4-7-1949 in his statement before the committing Magistrate under Section 342, Criminal P. C. As already stated, both the appellants filed applications on 20-12-1948 retracting their confessions. Thus, the confessions were retracted at the earliest possible opportunity.
10. Right from the dates of their arrest, i.e. from 4-9-1948 in the case of Kirpa and from 8-9-1948 in the case of Haria, to the dates 1-11-1948 and 4-11-1948 when their respective confessions were recorded, the two appellants were in police custody. Much was sought to be made of the fact that for a number of days prior to the recording of their confessions the appellants were in judicial lock up. The difference between police custody and custody in judicial lock up in this case is, however, merely a difference between tweedledum and tweedledee. Head Constable Shiv Dayal (P. W. 38) has admitted that the judicial lock up in question was in charge of a police head-constable. Again Inspector Kishan Chand (P. W. 49) has admitted that the lock up was under the Magistrate at Theog and that a police guard with a head-constable at its head, who were under the Superintendent of Police Mahasu, were in charge of it.
The so-called custody in judicial lock up was, therefore, really police custody. The learned Sessions Judge did not take this fact into consideration and was carried away by the mere slogan of judicial lock up. It will thus be seen that the appellants were in continuous police custody for about two months prior to the recording of their confessions. They were not only produced from such custody but restored to it after their confessions had been recorded. The Magistrate who recorded their confessions admittedly did not put any questions to them to find out the nature and the length of their custody prior to their being brought before him. He professes to have given them half an hour to compose themselves before recording their statements. He, however, made no record of that fact. It is unsafe to rely on his memory in regard to his taking this step since he did not remember whether he made a statement to that effect in the Court of the committing Magistrate. The learned Sessions Judge was of the opinion that it was sufficient for the Magistrate to have explained to the person making the confession that he was not bound to make the confession and that if he did so it might be used as evidence against him, and that it was nowhere laid down that the accused should be given time to compose himself.
This argument takes no heed of the further direction contained in Sub-section (3) of Section 164, Criminal P. C., that no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntary. One method of bringing about such satisfaction as to the voluntary nature of the confession is to give enough time to the person concerned to compose himself. 'Jahangiri Lal v. Emperor', A. I. R. 1935 Lah. 230 at page 244 column 1. For the information of the learned Sessions Judge it may further be pointed out that there is also a rule to that effect in the Rules and Orders of the High Court of Punjab adopted by us, being Rule 13 (i) (a), in Chap. 13 of Vol. III of the Rules.
11. There is one other circumstance which is worthy of note in connection with the confessions. There is on record the application Ex. P. A. J. dated 19-9-1948 submitted by Inspector Kishan Chand (P. W. 49) to the Magistrate concerned to record the confessions of Parmanad (one of the persons suspected of having committed the offences in question) and other accused. A reminder Ex. P. A. L was sent on 20-10-1948. It was, however, not till 1-11-1948 and 4-11-1948 that the two confessions were actually recorded. It is said that correspondence was all the time going on between the Magistrate and the District Magistrate concerned on the question of who should record the confession. Be that as it may, it cannot be gainsaid that the time that elapsed between the alleged willingness of the accused to confess their guilt and the actual recording of their confessions was in this case an inordinately long one, about a month and a half. It is surprising that the appellants should have stuck to their resolve of confessing their guilt for a month and a half but resiled from it a month and a half later immediately on the commencement of inquiry against them on 20-12-1948.
This is, therefore, a case to which the following remarks made by me in 'Vidyamati v. The State', A.I.R. 1951 Him. P. 82, apply:
'Where not only was the accused produced from police custody but she was restored to that custody after her examination, and there was unaccountable delay in the police producing her before the Magistrate for the purpose, the voluntary character of her confession under Section 164, cannot but be doubted. It makes no difference whether the confessing accused had been kept in police custody in defiance of rules of custody or of ordinary and natural course of prudent conduct. The mere fact that the Magistrate kept the accused sitting for about half an hour in a corner of his room before recording her confession does not in the circumstance make any difference especially when he does not do anything to reassure her that she need not make any statement under police pressure.'
It was further remarked by mo in that case as follows :
'The length of time during which an accused person is in police custody before he makes his confession is an important element for the consideration of the Court in reference to the admissibility of the confession. As it is an element for the determination of the voluntary nature of the statement, it is an equally important element for the consideration of the Magistrate who is about to record a confession, so that where he fails to do so despite the accused having been produced from police custody he can hardly be said to have done all that is reasonably necessary to lead him to believe, under Section 164, Criminal P. C., that the confession was being made voluntarily.'
I, therefore, hold that the prosecution have failed in this ease to prove that the confessions alleged to have been made by the appellants were voluntary. They must, therefore, be discarded.
12. The prosecution evidence with regard to Kirpa having been seen near the place of occurrence before and after the occurrence has been disbelieved by the learned Sessions Judge, and rightly so. It only remains to see whether the recovery from his possession of a silver kanthi Ex. P. 20 on 6-10-1948 and of a gold laung Ex. P. 4 on 7-10-1948 implicates him in any way. Ho admits having disclosed them but claims that they belong to him. The learned Sessions Judge has held, and that for good and valid reasons, that the prosecution evidence failed to establish conclusively that the two articles produced by Kirpa belonged to Panu. He, however, came to the conclusion that they were stolen property from the mere circumstance that they were taken out from a grain receptacle in Kirpa's house. He was of the opinion, that they were put in the grain receptacle in order to conceal their presence, and that the obvious conclusion from that was that the property was stolen property. I am afraid the reasoning adopted by the learned Sessions Judge is a forced and far fetched one, for it is common knowledge that villagers possess no boxes or safes and keep their valuables in grain pits. So far as Kirpa appellant is concerned, the prosecution case has totally failed against him.
13. As regards Haria, I am not prepared to believe the story of the prosecution witnesses with regard to his having slept with the deceased on the night in question. It is said that he was with the deceased during the preceding clay and night as well, the whole of the day having been spent by him in helping the deceased to reap the harvest. The prosecution ease is that the offence was not committed on the previous night because of the failure of the companions of Haria to appear on the scene according to plan. Mt. Ledri (P. W. 12) professes to have joined the deceased and Haria in reaping the harvest. Another witness on the point is Suba (P. W. 2), who professes to have seen Haria working in the field of the deceased from his own neighbouring field. It is strange that a person bent on committing the said offences should have so exposed himself to view.
Mt. Ledri's testimony is especially unworthy of credence because, although Karmu (P. W. 1) left on his errand to have a first information report lodged by Ratnu lambardar (P. W. 26) after meeting her, there appears in the report the bare fact of some body having slept with the deceased in the night in question but no description of the man. The learned Sessions Judge has also discarded the evidence with regard to the identification of the appellants held by the Magistrates Th. Narain Singh (P. W. 44) and Sri Jit Ram (P. W. 11) on 19-9-1948 and 21-10-1948 respectively. It was not sought to be shown by the learned Government Advocate that the learned Sessions Judge was wrong in doing so. 'The prosecution evidence with regard to Haria having slept with the deceased on the night in question must, therefore, be discarded.
14. There now remain the recoveries. Of the various articles alleged to have been discovered on information supplied by the appellant or on being pointed out by him, the appellant admits having produced only one of them, a pair of silver bracelets Ex. P. 19, but he claims them as his own. The learned Sessions Judge has held that the said pair of bracelets had not been proved to be stolen property and, therefore, their recovery was of no significance. As regards the other recoveries, Haria does not claim those articles and he denies their recovery at his instance. These recoveries must however be discarded for various reasons. Firstly, no list of stolen property was given in the first information report or to the police during investigation, and this inspite of the fact that near relations of the deceased who profess to know what articles Panu owned, and who subsequently came forward to identify the recovered articles as belonging to him, were the first to reach the scene of occurrence and even to inspect the adjoining room wherefrom the articles are said to have been stolen.
The story of robbery of the articles in question appears, therefore, to be an after-thought. Secondly, from what has been stated above regarding the mystery attaching to the locking up of the deceased's house after the occurrence and to the recovery of broken locks it is further apparent that there was every opportunity for Panu's property having been tampered with between his murder and the preparation of lists of existing property by Khushi Ram (P. W. 4) on 7-5-1948. Thirdly, recoveries alleged to have been made from third persons on information received from Haria and in his absence must be discarded because there is no independent corroboration of the police officer's statements that the information in question was really imparted to him. Fourthly, the rest of the recoveries must be discarded because these recoveries, on being pointed out by Haria, were made long after the alleged theft. It has been stated above that the recoveries were made between 12-9-1948 and 15-10-1948.
In order that any presumption against the appellant could arise under illustration (a) to Section 114, Evidence Act, the recoveries should have been recent. As to what is recent possession, the question must depend upon the facts and circumstances of each case. One criterion laid down is whether the stolen article is such as is likely to pass readily from hand to hand : Baliram Tikaram v. Emperor, A. I. R. 1943 Sag. 1. In the present case all the articles were of that description. That being so, the recoveries made in the present case more than four months after the alleged robbery could not possibly be said to be recent recoveries. Prom the mere fact of these articles having been recovered so long after the alleged robbery on being pointed out by Haria appellant all that can, therefore, be presumed is that he had knowledge where the property was, but not that he was either, a thief or the receiver of goods knowing them to be stolen: Chavadappa Pujari v. Emperor, A. I. R. 1945 Bom. 292, and Giyan Chandra v. Emperor, A. I. R. 1937 ALL. 47. The case against Haria appellant also falls to the ground.
15. The appeals of Haria and Kirpa are allowed, their convictions and sentences under Sections 394 and 451, Penal Code, are set aside and they are acquitted of the charges. The fines, if already realised, shall be refunded to them. Kirpa Ram is on bail, his bail bonds are discharged and he need not surrender. Haria is in jail, and he shall be released forthwith unless wanted in some other connection.
16. The silver kanthi Ex. P. 20 and the gold laung Ex: P. 4 shall be restored to Kirpa appellant and the pair of silver bracelets Ex. P. 19 to Haria appellant. The rest of the recovered properties shall be restored to the respective persons from whose possession they were recovered. The order of the Additional Sessions Judge regarding restoration of properties to Nanku and regarding properties recovered from Dhanna will stand.