Sharma, J. - (1.) THE appellant Krishana has been convicted by the Sessions Judge, Baran under sec. 325 of the Penal Code. He was challaned by the Police Morpur under sec. 302 of the Penal Code and the allegations of the prosecution were that the accused was taking a number of jawar bags in his cart from Baran to Chipa Barod for the firm of Madho Lal on the 22nd January, 1949. In the way one of the bullocks was found unable to proceed any further and consequently from the village Chhajawa he hired a bullock of Dhanna Chamar for Rs. 6/ -. THE bullock of the accused was left at Dhanna's house and Dhanna accompanied the accused in the Cart. When the cart reached within the boundaries of village Kabail sometime in the evening a dispute arose between the accused and Dhanna (hereinafter to be referred to as the deceased) near Village Chhegra between the said village and Chipa Barod about two furlongs from the Platier's Bungalow. THE accused wanted to pay only Rs. 4/- whereas the deceased demanded Rs. 7/ -. THE deceased abused the accused who took out a wooden stump from his cart called Kharla and dealt it over the head of the deceased from behind the latter's back. THE deceased fainted and the accused dragged him down from the cart and made him lie down on one side and dealt two more blows to the left temple of the deceased who immediately succumbed to his injuries. THEreafter the accused reached his destination Chipa Barod and after unloading his cart was going to Baran when he was seized by Dhanna's widow Mst. Ganga who asked him to return the bullock and also as to what had happened to her husband. THE accused replied that the deceased would be coming by train and that the bullock had been exchanged for his own bullock after paying a sum of Rs. 10/ -.
(2.) MST. Ganga with the help of one Hira took the accused to Mangla Chowkidar who took the accused along with the cart and the bullock to Atru Police Station. Meanwhile a police constable Dhuli Lal was informed on the 23rd January, 1949 by Bhanwar Lal Mahajan of Chipa Barod that a corps was lying about five furlongs from Salpur Railway Station. Dhuli Lal went to the spot along with Bhanwar Singh Constable and Madan Lal Jat of Kabail and found the dead body there with blood stains. He lodged a report at the police out post Kabail. Ali Mohd. A. S. I. Morpur went to the spot and inspected the site and the dead body. A case was registered under sec. 302 of the Penal Code on the 24th January, 1949 and the dead body was sent for post-mortem, examination on the 25th March, 1949. Certain articles including a Barsati (Rain Coat) are said to have been recovered at the instance of the accused. The Rain Coat was recovered on the 29th January, 1949. On the 31st January, 1949 the accused was produced before Shri Zahid Hussain Additional Magistrate, Baran and his confession was recorded by the said Magistrate. After further necessary investigation the case was challaned in the Court of the Sub-Divisional Magistrate, Atru who committed the accused to take his trial under sec. 302 of the Penal Code before the Court of Sessions at Baran. The accused retracted the alleged confession before the committing Magistrate as well as the Sessions Court and stated that it was made on account of the undue influence and pressure exercised by the police. In the committing Magistrate's Court he admitted that he had hired Dhanna's bullock and that Dhanna had accompanied him and that he was killed while he was sitting in the cart of the accused. But he denied having hit the deceased but said that it was some robbers who had killed him. He admitted that the Barsati recovered by the Police was his and that it bore blood stains and that Dhanna was sitting on the bullock cart and he was killed by the robbers. However, in the Sessions Court he denied that Dhanna was sitting in his cart and that the rain coat belonged to him and showed ignorance about the cause of Dhanna's death. The learned Sessions Judge was satisfied that the accused had hit the deceased which resulted in the latter's death. He however, held that the accused had no intention to kill Dhanna nor could he know that the blow would cause such bodily injury as was likely to cause death. He therefore, acquitted the accused of the offence of murder under sec. 302 but convicted him under sec. 325 of the Penal Code and sentenced him to seven years' rigorous imprisonment. The accused Krishna has come in appeal to this Court. It has been argued by Mr. B. P. Agarwal on behalf of the accused that there was absolutely no evidence to show that the accused gave any blow to the deceased. He conceded that it was proved by the evidence on the record that the accused had hired Dhanna's bullock and that Dhanna had accompanied the accused. He also conceded that the deceased's body was recovered by Dhuli Lal before the accused was seized by Dhanna's widow near her village Chhajawa. He also conceded that the death of Dhanna was due to violent action but argued that there was nothing to show that the deceased died as a result of any violence on the part of the accused. He urged that the so called confession of the accused was brought about by undue influence and pressure of the police and the accused being a lad of 16 or 17 years was caught in the trap laid by the police for securing his confession. It was argued that the accused was produced before the Magistrate who recorded the confession from police custody and that he was made to sit in a room at Baran Dak Bungalow where none was present except the Magistrate and his orderly. He had been there only for an hour before his confession was recorded. The influence exercised by the police could not be washed off in such a short time and even after his statement was recorded the accused was delivered to the police. Under the circumstances his confession was not free and voluntary. Moreover, it was argued, that the confession did not give an impression of being true as the medical evidence was opposed to what the accused had stated in his confession. It was further argued that confession alone cannot be made the basis of conviction unless it is corroborated in material particulars by independent evidence in this case to corroborate confession. On behalf of the prosecution it was argued by learned Government Advocate that the Magistrate took pains to satisfy that the confession was made voluntarily and without any fear from any quarter. The Magistrate not only observed the formalities laid down by sec. 164 of the Criminal Procedure Code but fully explained to the accused that he was not bound to make any statement before him and that if he made any statement it could be read against him. It was further argued that the confession reads as a natural and cogent statement and there is nothing to show that it is not true. It was also argued that it was corroborated in material particulars by the recovery of blood stained Barsati, medical evidence and the statements of Mst. Ganga, Brij Mohan of Chipa Barod and other witnesses. Further it was argued that under the circumstances of the case the only conclusion that can be arrived at. even apart from the confession was that it was the accused who had killed the deceased by violence. When the case was first argued it was felt that if the accused is connected with the crime the offence may amount to an offence under sec. 302 and in that case sentence shall have to be enhanced. A notice was therefore, given to the accused to show cause why his sentence be not enhanced. The learned counsel for the accused has argued that in no case the circumstances of the case warrant an offence under sec. 302 or 304 and so there is no question of the enhancement of the sentence. We have considered the arguments of both the learned counsels. There can be no doubt that Dhanna met an unnatural death and the cause of it was violence. The medical evidence shows that the wound 2" long and 1-1/4" in breadth was found over the head of the deceased and that his left parietal bone was found fractured. It was broken into three pieces which pierced the brain and caused the bursting of the cerebral artery. This bursting of cerebral artery and haemorrhage caused the death of the deceased. It has been conceded by the learned counsel for the appellant himself that the death was due to violence. The only thing which has to be seen is as to who was responsible for this action. The back bone of the prosecution case so far as this question is concerned is the confession of the accused. I have therefore, got to examine whether the confession is such as can be made use of in the conviction of the accused. A number of authorities have been cited before us on the question as to under what circumstances a retracted confession can be made the basis of conviction. To make the confession made by an accused person irrelevant in a Criminal proceeding, it is laid down in sec. 24 of the Evidence Act, that such a confession is irrelevant if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Thus where the prosecution wants to make use of a confession of an accused person it has got to be seen with care that the confession is free and voluntary and has not been brought by any inducement, threat or promise as mentioned in sec. 24 of the Evidence Act. If the court is of opinion that there was no such inducement, threat or promise as could give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him the confession is irrelevant and cannot be considered. The first thing therefore, to be seen is whether the confession in the present case was free and voluntary and not tainted with any of those things which are mentioned in sec. 24. It is not necessary for the accused to definitely prove that no such inducement, threat or promise was held out to him. If there are any circumstances in the case on the basis of which the court can form an opinion that there was inducement threat or promise of the nature mentioned in sec. 24 and it can give reasonable grounds to the accused person to suppose that by making it he would gain any advantage or avoid any evil of a temporal nature. . . . . . . . . . . . it should be discarded. I have read the alleged confession with very great care. It was recorded by a competent Magistrate under sec. 164 of the Criminal Procedure Code after observing the necessary formalities. The learned Magistrate took care not only to be satisfied with the bare formalities enjoined by law but he put a number of questions to the accused in order to satisfy himself that no inducement, threat or promise of the nature mentioned in sec. 24 of the Evidence Act was held out to him. More than once he warned the accused that if he made a confession it would be read against him and he might be convicted on its basis. He also satisfied himself that the accused fully knew that he was a Magistrate. He also specifically asked the accused if any police employee threatened him that if he did not confess he would be maltreated and the accused gave a clear reply in the negative. The learned Magistrate more than once assured the accused that he should not at all fear that he would be sent back to police custody and the accused replied that he had fully understood that he would not be sent back to the custody of police. The Magistrate also specifically asked the accused to tell whether he had been belaboured and if so to show him the injuries if he had received any and the accused clearly replied where was the question of injuries when he had been given no beating. It appears from the answers given by the accused to the preliminary questions put by the Magistrate that the accused is an intelligent lad with considerable com-monsense. The answers given are not only in 'yes' or 'no' but the accused has given full answers to the questions put to him. From the reading of the confession it cannot at all be doubted that it was made involuntarily or on account of any inducement, threat or promise. The only thing that the learned counsel for the accused was able to point out was that the accused was a lad of 16 or 17 years only, that his confession was recorded in a solitary room in the Dak Bungalow at Baran where there was no body else excepting the Magistrate and one or two of his subordinates, that it was made only after an hour of his production before the Magistrate, that after the recording of the statement, the accused was sent in the custody of police constable and that the Magistrate instead of using the word confession used the word statement when putting questions to the accused. Some rulings have been referred to where one or the other of the above factors given above has been considered along with the certain others and it has been held that a confession under such circumstances was not free or voluntary. Learned counsel for the accused referred to the ruling reported in The Queen vs. Thompson (1893 (2) Queen's Bench Division Page 12) in which it has been laid down that in order that evidence of a confession by a prisoner may be admissible, it must be affirmatively proved that such confession was free and voluntary, that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed. This ruling does not apply to the facts of the present case. In that case the evidence of a chairman of the company, at whose instance the warrant for the prisoner's apprehension had been issued itself showed that he had spoken to the prisoner's brother and brother-in-law about the desirability of the prisoner making a clean breast of it. The Court thought that the object of the chairman in speaking to the prisoner's relations was that he expected that what he had said would be communicated to the prisoner. Under these circumstances it was incumbent on the prosecution to prove whether any, and if so, what communication was actually made to the prisoner before the Magistrate could be satisfied that the confession was free and voluntary. There were clear grounds in the case to suspect that the confession of the prisoner might have been brought about by communication of the chairman's view to the prisoner by his relations and the confession was therefore, not free and voluntary. It is true that it is not necessary for the accused to prove definitely that the confession was brought about by any inducement, threat or promise and if it can be gathered from the circumstances that such inducement, threat or promise was held out, the confession would not be acted upon. But there must be something to show that there was any such inducement, threat or promise. When the confession is quite clear and cogent and has been made after due formalities and Sufficient caution there must be some such circumstances from which inducement, etc. may be reasonably inferred. In Emperor vs. Pancham (A. I. R. 1933 Oudh P. 192) referred to by learned counsel for the appellant the confession recorded after the accused was kept for more than 24 hours in police custody was rejected as it was very brief without any details as to the crime and it was retracted when the accused was brought from jail before the committing Magistrate. In the present case the confession is not very brief without any details as to the crime but is a detailed one as I have said above is quite clear and cogent. It cannot therefore, be said that simply because the accused was produced before the Magistrate from police custody and was sent in the company of the police for production before Atru Magistrate and because his statement was recorded not in the usual court room but in the room in the Dak Bungalow in the presence of the Magistrate and his staff only after an hour from his production in the court, it was relevant because there were circumstances to show that it was not free and voluntary. To my mind these circumstances alone in the face of the clear and cogent confession of the accused after due warnings cannot make the confession irrelevant under sec. 24 of the Evidence Act. In Harold White vs. The King (A. I. R. 1945 Privy Council Page 181), confession was rejected because it was said to have been made to a prosecution witness who had motives to implicate prisoner. It was not recorded before the Magistrate. There were grounds for believing that the evidence of the witness who gained by implicating the accused could not be entirely true. In Re B. K. Rajagopal and others (A. I. R. 1944 Madras Page 117) it was laid down by a Full Bench of the Madras High Court that a conviction can be based on a retracted confession without corroboration, if the reasons given by the accused for withdrawing the confession are palpably false. In Sural Singh Buta Singh vs. Emperor (A. I. R. 1938 Lahore Page 292), the confession of the accused was made use of although the accused was handed back to the police soon after the confession was recorded. Of course the confession was closely and carefully examined and having satisfied that it was true the court came to the conclusion that the simple fact that the accused was returned to police custody after the recording of the confession did not make it irrelevant. Having read and re-read the confession very carefully and cautiously I am perfectly satisfied that it was free and voluntary and not brought about by any inducement, threat or promise referred to in sec. 24 of the Evidence Act. Having come to the conclusion that the statement was free and voluntary, the next thing that I have to see is whether it was true. If the confession is to be acted upon it is not sufficient that it should not have been brought about by any inducement, threat or promise but it is necessary that it must also be true. Of course there might be other motives for making a false confession than those given in sec. 24 of the Evidence Act. The accused person may for notoriety's sake make a wrong confession or he may make a wrong confession in order to save a friend or a relation of his. There might be other motives on account of which a false confession may be, made quite freely and voluntarily without any inducement, threat or promise. But if it is not true it would be simply unjust to convict the accused on that confession. It has been laid down in a number of rulings that unless the court is satisfied that the confession is true, it would not be justified to convict the accused simply because he has made a free and voluntary confession. It was held in Harold White vs. The King (A. I. R. 1945 Privy Council Page 181) that confessions are not always true, and they must be checked, more particularly in a murder case, in the light of the whole of the evidence on the record in order to see if they carry conviction. The rule of prudence also requires that although it is not illegal to convict an accused on the basis of his retracted confession believed to be true alone, yet ordinarily the confession should be corroborated in material particulars by other independent evidence. It was held in Dikson Mali and another vs. Emperor (A. I. R. 1942 Patna Page 90) that although it is not illegal to act upon a retracted confession so far as the maker there of is concerned, provided the court believes it to be true, generally as a rule of prudence it is unsafe to rely upon a retracted confession made by an accused unless it is corroborated in material particulars so as to satisfy the court that the confession may be acted upon. A number of rulings of various High Courts in India were considered in the case of Abdul Rehman vs. State Criminal Reference No. in of 1950 recently decided by this Bench on the 4th December, 1951. It was observed that experience and commonsense show that in absence of corroboration in material particulars it is not safe to convict on a confession unless, from the peculiar circumstances in which it was made and judging from the reasons, alleged or apparent of the retraction, there remains a high degree of certainty that the confession, notwithstanding its having been resiled from, is genuine. Thus it has got to be seen whether the confession is true and is corroborated in material particulars. A careful reading of the confession shows that it is quite natural, consistent and cogent and is not the result of any tutoring. The accused has given detailed account of his journey from his own place to his destination Chipa Barod. He has deposed why he felt the need of hiring a bullock of Dhanna. He has struck to the statement that he hired the bullock of Dhanna upto the very end. He has said many things in his confession which could be within his special knowledge only and could not be put into his mouth by any other person. Even in the committing Magistrate's Court although he resiled from his confession yet he stated that the deceased was killed in his own presence while sitting in his cart although it were the robbers who killed him. Only one thing has been suggested by learned counsel for the accused in order to show that the confession was not true. It is that the accused said in his confession that he dealt one blow on the head of the deceased with a Kharla while the deceased was sitting in his cart and dealt two more blows to him on his temple after dragging him down from the cart after the first blow. This, it was contended, was against the medical evidence which showed that there was only one injury on the head of the deceased. Of course it cannot be said with definiteness that the deceased received more than one blow yet there is some reason to believe that the blows might have been more than one. The injury which was found at the time of medical examination was quite a big one (2" x 1-1/4") and it is in the evidence of the medical examiner that it might be the result of more than one blow. It cannot therefore, be said that the statement of the accused was definitely untrue and advantage can be given to him on account of this apparent discrepancy while considering the offence committed by him. I am perfectly satisfied that the confession is quite true. Now remains the question whether there is any material corroboration of the confession. So far as the hiring of the bullock of Dhanna and his accompanying the accused is concerned, it is fully supported by the statement by Mst. Ganga P. W. 6 the widow of the deceased and Moti Lal P. W. 13. The accused himself sticks to this till the end. So far as the accompaniment of the accused by Dhanna is concerned it is corroborated by the statement of Mst. Ganga P. W. 6, Moti Lal P. W. 13, Roru P. W. 7 and Jag Ram P. W. 8. That the deceased was seen in the company of the accused in the latter's cart upto the place near the place of occurence is proved by the statement of Jag Ram P. W. 8 and Roru P. W. 7. They have clearly stated that they asked the accused as to who was the person sitting in his (tart and the accused replied that he had taken his bullock on hire as his (accused) bullock had become unfit to proceed any further. There is, therefore, ample evidence to corroborate the confession that the deceased was seen in the company of the accused uptil near the place where the dead body was found by Dhuli Lal constable. Even upto the committing Magistrate's Court the accused admitted that the deceased was in his cart when he met his death. In his confession the accused says that a Barsati of his which was in his cart at the time the deceased was dealt the fatal blow became stained with the blood of the deceased. That the Barsati belonged to the accused is proved by the statement of Ibrahim P. W. 9. It was contended by the learned counsel for the accused that the identification by Ibrahim was not reliable. Ibrahim has however, stated on oath that the Barsati belonged to the accused and even upto the committing Magistrate's Court the accused admitted that the Barsati belonged to him. Ibrahim's evidence is under the circumstances sufficient to corroborate that part of the confession where the accused said that the Barsati belonged to him. This Barsati was found blood stained by the Chemical Examiner. The sero-logist found that the blood was human blood. Thus that part of the confession where the accused says that his Barsati was stained with the blood of Dhanna which flowed after the fatal blow was dealt to him is corroborated by the human blood stains found on the Barsati of the accused. Of course there is no direct evidence of the fact that the accused dealt a blow to the deceased which led to his death. But it is not necessary that confession should be corroborated in every particular. Law requires that it should be corroborated in material particulars and the material particulars in which the confession has been corroborated by other evidence in this case cannot be said to be negligible. I have already said above that it cannot be said with definitness as to whether the accused dealt one blow or more than one as at the time of medical examination only one injury was found on the head which according to the doctor could be the result of more than one blow. The medical evidence therefore, also supports to a great extent the confession and cannot be said that it is definitely inconsistent with the confession. To my mind the confession is free and voluntary and true and is materially corroborated by other direct and circumstantial evidence. The accused did not retract the confession at the earliest possible moment. He retreact-ed it after having attended the court of the committing Magistrate on two or three dates. If the confession was not free and voluntary and was not true there was nothing to prevent the accused from complaining to the court on the first day he was brought before it that the confession was untrue and was brought about by threat or pressure.
(3.) I do not think that the learned Sessions Judge was justified in doubting the genuineness of the confession. Having come to the conclusion on the basis of the confession materially corroborated by other evidence that it was the accused who dealt the fatal blow to the deceased, it would be relevant to say that he was the perpetrator of the crime. Of course on this alone it is not permissible to hold the accused guilty when it is not possible to convict the accused on other evidence. It was within the special knowledge of the accused that the deceased had died in the way from Chhajawa to Chipa Barod. He did not make any report of the murder to the police as an innocent person ought to have done. He concealed as far as possible the fact of the death of deceased. Even when by chance he was caught while going to his village by Dhanna's widow he gave false explanation that the deceased might be coming by train and that he had exchanged Dhanna's bullock with his own on payment of Rs. 10/ -. It is not the conduct of a person who is innocent. Any way this is only by the way because in the circumstances of the case it has been fully proved by other evidence coupled with confession that the accused was the perpetrator of the crime. The only thing now remains as to what offence the accused committed. I would have found without doubt that the accused was guilty of murder if it had been established beyond reasonable shadow of doubt that the accused gave two more blows to the deceased on dragging him down from the cart after dealing the first blow. As I have said above it is not quite clear and therefore, the benefit must go to the accused. The only thing that can be said with definiteness is that the accused dealt at least one blow to the deceased. As to under what circumstances it was dealt, we have no other evidence except that of confession of the accused. We have, therefore, to accept that the accused under grave and sudden provocation caused by the quarrel and the gross abuses hurled at him by the deceased dealt the fatal blow. His action, therefore, does not amount to murder. It however, amounts to culpable homicide not amounting to murder as when he dealt the heavy blow to the deceased, on the vital part of the body like head he must have known that it was likely to cause death. I do not agree with the learned Magistrate that the accused can have any such knowledge and therefore, he only committed an offence of grievous hurt. A notice was issued to the accused to show cause why his sentence be not enhanced on the supposition that the offence might amount to that of murder. It has however, been held that the offence does not amount to that of murder. For an offence of culpable homicide not amounting to murder in the circumstances of the present case the sentence of seven years' rigorous imprisonment awarded by the lower court is quite sufficient. There is therefore, no necessity for enhancement of sentence. There is no necessity for reduction too as argued by the learned counsel for the appellant. The only alteration that I would like to make in the order of the lower court is that the conviction is altered from one under sec. 325 to 304 Penal Code. In other respects the appeal is dismissed. The notice for enhancement of sentence is discharged. . ;