Venkatarama Ayyar, J. - (1.) On 17-5-1952 Sri Nand Lal Kureel, the City Magistrate of Manipuri, returned home from court at about 5 p.m. and found his son, Sumer Singh, aged about 10 or 11 years, missing. After some fruitless search, he reported the matter to the police. On information given later that night by P. W. 26, Sri Kureel sent for Bhola, the first accused, who stated that he and the second accused, Ram Singh, had in the course of the day lured away the boy. The second accused was then sent for, and he also made similar statement. Thereupon, Sri Kureel handed them over to the police for further investigation. At about 3 a.m. on the same night; Bhola and Ram Singh took the police, Sri Kureel and some others to any outlying garden, and at their instance, the dead body of Sumer Singh was discovered in a well in that garden. The post-mortem examination showed that death was due to asphyxia. Both the courts below have held that it was not a case of accidental drowning but of murder by strangulation; and that finding has not been disputed. The only question is, who perpetrated the crime
(2.) Accused 1 and 2 were in the lock-up until 22nd May, when they were taken into jail custody. On the 24th, both of them made confessional statements (Exhibits P-5 and P-6) before a Special First-class Magistrate, P.W. 28. These confessions, though subsequently retracted, have been found by both the courts to have been true and voluntary, and it was on the strength of these confessions which received corroboration in material particulars from the evidence in the case, that accused 1 and 2 were convicted. In the confessional statement, accused 1 and 2 stated that on the day previous to the occurrence, the appellant told them to bring the deceased and promised to pay Rs. 5 each, that accordingly on 17-5-1952 they enticed the boy away to an outlying garden stating that they might eat mangoes, that while they were in the garden the appellant came there, tied an 'angochha' round the neck of the deceased and stragled him, themselves holding the deceased by the hand and feet, and that they then threw him into the well. These statements have been relied on in support of the conviction of the appellant and one of the contentions urged on his behalf is that they are inadmissible in evidence, and that the conviction based thereon is illegal. This question will be considered in due course.
(3.) The appellant, as appears from the evidence of Sri Kureel, which has been accepted by both the courts, was arrested on the night between 20th and 21st May. Though the confessional statements of accused 1 and 2 were recorded on the 24th May, seeing that they were in police custody from the night of the 17th down to the 22nd it may be presumed that the appellant was arrested on the night of the 20th as the result of statements made by accused 1 and 2. The police, however, released the appellant immediately, and it was not till 8-6-1952 that he was re-arrested. It is certainly remarkable that the police should have released the appellant immediately after his arrest on the 20th without further investigation, and it is even more remarkable that no steps should have been taken to apprehend him at least after the confessions implicating him were made by accused 1 an 2 on the 24th. The explanation for this conduct as found by both the courts below was that the local police were reluctant to bring the real offenders to book. To appreciate this, it must be mentioned that the fourth accused, Bagh Ali, was a head constable who had been dismissed from service, that proceedings were taken against him under S. 107 Criminal P.C., and by an order passed by Sri Kureel on 30-4-1952 he had been bound over. It is the evidence of Sri Kureel that Bagh Ali was shadowing him thereafter, and there is also the evidence of P. Ws. 21 and 22 that Bagh Ali was swearing vengeance against Sri Kureel. Sri Kureel naturally suspected the forth accused of having had a hand in the affair, and communicated his suspicion to the police. The station officer at the time was Sri Surendra Shankar Singh, P. W. 32, and it is stated that he had known the fourth accused since 1941 when the latter was a head constable at Agra and the witness a constable, and was interested in shielding him. It is suggested that P. W. 32 released the appellant on the night of the 20th, and failed to take action against him with a view to save the fourth accused P. W. 32 denied that he arrested the appellant on the 20th, but his evidence has not been accepted.;