WANCHOO, C. J. - (1.) IN order to make a confession admissible in evidence, it is necessary that the court should be satisfied that it is voluntary. This is specially, so when the confession is retracted afterwards. After the court has come to the conclusion that the confession is voluntary, and has held it to be admissible, then the next thing to see is whether it is true. IN some special cases it may be that the conviction of the maker can be founded on his confession alone; but as a rule of prudence, ordinarily corroboration in material particulars of the confession should be sought. All these things are necessary because it is very unnatural why a man, who has committed an offence, after precautions to keep it concealed, should, out of his own free will, be coming forward afterwards to expose his guilt. (Para 7) Sec. 24 does not require that the accused should be able to prove that he made the confession under any inducement, threat or promise, as mentioned in the section, but the words used are "appears to the Court to have been caused by any inducement etc. " If, therefore, there are circumstances, from which it appears that the confession was not made voluntarily, the Court would be justified in rejecting that confession even though there is such material on the record which might amount to the proof of its being involuntary. (Para 8) The fact, that there was no evidence amounting to proof, of the fact that any inducement, thereat or promise was given to the accused, would not compel this Court to reject off-hand the statement of the accused in the Committing Magistrate's Court as well as in the Sessions Court that the confession was obtained from him by improper means it is necessary to examine the circumstances under which the confession was made, so that the Court might be able to hold whether it appeared to it or not that the confession was obtained by any inducement, thereat or promise. (Para 8) It is true that the accused may not be able to substantiate his allegations about beating by any evidence, but the circumstances in the case may suggest that some force might have been used with him. Even though there may not have been any beating, the circumstances may be created so that fear may be engendered in the mind of the accused that it would serve no useful purpose, if he did not get his confession recorded. (Para 9) Per Wanchoo C. J. (in agreement with Sharma J.) It is hardly possible that an accused person would interrupt the proceedings and ask the Magistrate to take down his retraction of the confession before taking the prosecution evidence. IN the normal course the earliest time is when the accused is being examined by the committing magistrate, and if be retracts the confession then, then it should not be said that he did not retreat it at the earliest opportunity. It is difficult to expect that, in the normal course, an average villager would make a complaint about a concession before his attention was drawn to it during his statement in court. (Para 20) The facts, whether an accused was in police custody before he was produced before the magistrate for recording confession and for how long, and whether he was given back to police custody, are always relevant in judging the voluntary nature of the confession. It will depend upon the circumstances of each case whether those facts would lead to the inference that the confession was involuntary. (Para 21) Thus where the accused, a village boy of seventeen years, stated to have confessed his guilt to the police on the very day of his arrest was kept in police custody for a period of eight days and the questions put by the magistrate before recording the confession were not searching enough to remove the influence that might have been produced on the accused, a boy of 17 years of age, by the police while he was kept in their custody for an unnecessarily long time, it was held that the confession could not be treated as voluntary. (Para 21) Krishna vs. The State (1952 RLW 103) and Bhainrolal vs. The State (1952 RLW 376) distinguished. C. B. Bhargava, Dy. Govt. Advocate SHARMA, J.- This is an appeal by Durga Datt accused, who has been convicted under sec. 302 of the INdian Penal Code by the learned Additional Sessions Judge, Jhunjhunu, and sentenced to transportation for life.
(2.) THE facts, put briefly, are as follows. On the 19th of May, 1950, one Ganpat, a servant of Shri G. D. Birla, went to a temple on the hillock, which lies to the North of Pilani. He saw blood near the Kund, which aroused his suspicion. When he looked into the Kund, he found a dead body therein. THE matter was reported to the Police Outpost, Pilani, at about 12 or 12-30 noon. Two constables, Beju Ram and Sultana Ram, were deputed, and they found the dead body in the Kund. Beju Ram remained at the Kund, while Sultana Ram returned and reported the matter to Bhawani Shanker, Sub-Inspector, Police Station Narhar. THE dead body was recovered by the police from the Kund on the 20th May, 1950, and investigation started. THE dead body was identified to be that of Durgaprasad, also called Durga Datt, son of Anandilal Brahmin of Pilani. Postmortem examination of the dead body was made by Dr. Girdhari Lal, Medical Officer, Chirawa, on the 20th of May, 1950, and an Irandi and a Payajama as also a Lota and Kulri were recovered by the police during investigation. THE accused was arrested on the 20th of May, 1950, and his statement was recorded by Mr. Suganchand, Extra Magistrate, Jhunjhunu, on the 29th of May, 1950. THE prosecution case is that the accused murdered the deceased. He was challenged under sec. 302 of the Indian Penal Code in the court of the City Magistrate, Jhunjhunu, who committed the accused to take his trial before the Court of Session. The accused denied the charge and suggested that it might possibly be the prosecution witness Kishori Lal, who might be responsible for the crime. He retracted the confession in the court of the Committing Magistrate as well as in the court of Session. The learned Additional Sessions Judge convicted and sentenced the accused as mentioned above. The appeal has been preferred from jail, and the accused is unrepresented. We have gone through the record of the case, and also heard Mr. C. B. Bhargava on behalf of the State. There is no direct evidence of murder in this case. The case hangs on the so called confession of the accused dated 29. 5. 1950, and certain circumstantial evidence, to be discussed shortly. We might first examine Ex. P. 9, which has been put forward by the prosecution as the confession of the accused. Under sec. 24 of the Indian Evidence Act, a confession made by an accused person is irrelevant in a criminal proceeding, 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. In the case of Krishna vs. The State (1) (1922 RLW, 103) it was held by a Division Bench of this Court that : - "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. " It was further held that : - "if the confession is to be acted upon it is not sufficient that it should not have been brought about by any inducement, thereat or promise but it is further necessary that it must also be true. " In the case, the Magistrate, who recorded the confession, put very searching questions to the accused to satisfy himself whether he was making the confession voluntarily, and from the answers he was perfectly satisfied that the confession was being made voluntarily. Due formalities, which are necessary for a valid confession, were also gone through by the Magistrate. The confession was quite clear and cogent, and the court was satisfied that it was quite true. There was material corroboration also, and it was held that under the circumstances the confession was voluntary and true. , and being materially corroborated was fit to be acted upon for conviction. There is another Division Bench case of this very Court Bhaironlal vs. The State (1) (1952 RLW 376!) in which it was held that: - "where there is corroboration available of various parts of the confession which goes to establish its truth, then simply because the accused was given back to the police custody, the confession cannot be held as not voluntary. " In that case also the Magistrate had taken great precautions to satisfy himself that the accused was making the confession voluntarily, and not under any inducement, threat or promise. A number of cases of different High Courts in India were taken into consideration in both the cases of this Court, referred to above,, and the principle which emerges from the authorities is that in order to make a confession admissible in evidence, it is necessary that the Court should be satisfied that it is voluntary. This is specially so when the confession is retracted afterwards. After the Court has come to the conclusion that the confession is voluntary, and has held in to be admissible, then the next thing to see is whether it is true. In some special cases it may be that the conviction of the maker can be founded on his confession alone; but a rule of prudence ordinarily, corroboration in material particulars of the confession should be sought. All these things are necessary because it is very unnatural why a man, who has committed an offence, after precautions to keep it concealed, should, out of his own free will, be coming forward afterwards to expose his guilt. As observed by Mukerji J. at page 635 in the Full Bench case of Raggha vs. Emperor (2) (AIR 1925 All. 627) "there indeed some cases in which a man would be so very careless of his life and his determination so strong that he would after committing the crime, himself go to the authorities and give himself up and hand over the instrument of the crime. But such cases are rate. In the majority of cases a culprit tries his best to hide his crime and to escape punishment. " The observations of Mr. Justice Cave in the case of Queen vs. Thompson (3) ( (1898) 2 Q. B. D. 12), which the learned Judge quoted, and find place at the same page 635, may usefully be cited. They are as follows : - "i would add that for my part I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rate occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession, a desire which vanishes as soon as he appears in a Court of Justice. " It is, therefore, necessary to see, in the first instance, if the confession relied on by the prosecution call be said to be voluntary. Of course, the accused, when he was put before the Magistrate, did not complain that he was given any inducement, threat or promise to make the confession; rather he replied to the preliminary question of the Magistrate, whether he was making his statement under any threat or inducement, that it was not so and that he was getting the statement recorded voluntarily. The Magistrate has also appended a certificate to the said confession according to sec. 164 of the Code of Criminal Procedure that before recording the confession it was explained to the accused that he was not bound to make a confession, and that if he did so, any confession that he might make might be used as evidence against him, and that the Magistrate believed that this confession was voluntarily made. There is a preliminary question to the effect whether the accused understood that he was not bound to make a confession, and that if he did so, it would be read in evidence against him. It is also true that the accused did not produce any evidence to prove that he was maltreated by the police, and the confession was extorted from him by such maltreatment. Sec. 24, however, does not require that the accused should be able to prove that he made the confession under any inducement, threat or promise, as mentioned in she section, but the words used are "appears to the court to have been caused by any inducement etc. " If, therefore, there are circumstance, from which it appears that the confession was not made voluntarily, the court would be justified in rejecting that confession even though there is no such material on the record which might amount to the proof of its being involuntary. This was the view expressed by Muker ji J. in the Full Bench case of the Allahabad High Court quoted above. The same view was expressed by Mukerji J. of the Calcutta High Court in the case of Emperor vs. Panchkowri Dutt (5 ). On a review of several authorities, the learned Judge says at page 83 that: - "the section does not require positive proof (as defined in sec. 3 of the Act) of improper inducement to justify the rejection of the confession, the word 'appears' indicating a lesser degree of probability than would be necessary if 'proof' had been required. " The learned Judge further observes at page 85: "in order to ensure the voluntariness of a confession the questioning of the accused, before the makes the confession, forms a factor, the importance of which can seldom be over-estimated. It has been enjoined in decisions, of which the number is legion, that the Magistrate must question the accused with a view to discovering whether the prisoner confesses voluntarily, and this questioning must be in pursuance of a real endeavour to find out the object of it, the requirement not being satisfied by putting a few formal questions. " The fact, therefore, that there was no evidence amounting to proof, of the fact that any inducement, threat or promise was given to the accused, as mentioned in sec. 24, would not compel this Court to reject off-hand the statement of accused in the Committing Magistrate's Court as well as in the Sessions Court that the confession was obtained from him by improper means. Therefore, it becomes necessary to examine the circumstances under which the confession was made, so that the Court might be able to hold whether it appeared to it or not that the confession was obtained by any inducement, thereat or promise. Going into the circumstances I find that the accused was arrested on the 20th of May, 1950. The entire evidence of the prosecution witnesses had been recorded by the police and the last article recovered till the 25th of May, 1950. All this comes out from the statement of the investigating officer, Sub-Inspector Bhawani Shanker, who also stated that the accused had confessed to him on the 20th of May, 1950. There does not appear to be any reason why the accused should not have been brought before the Magistrate as soon as he had confessed on the 20th May, 1950, or at least on the 25th May, 1950, when the last article produced in the case had been recovered. The Sub-Inspector was asked why he detained the accused in police custody and did not produce him in Court even after he had confessed on the 20th May, 1950, and he replied that he detained him for recovery. First of all, there was no reason why the accused should not have been produced before the Magistrate on the 20th May, 1950, for the purpose of recording confession, even though recovery of all the articles necessary in the case had not been made by then. But even if it might be some reason, there is no reason why the accused was not produce before the Magistrate for the recording of confession on the 25th May, 1950, when the last article had been recovered, or a day after that; Again there is a very extraordinary procedure in this case, which, to my mind, has no relevancy to it, and which was adopted a day before the accused was produce before the Magistrate for the recording of the confession. It is that on the 27th May, the accused was got medically examined, with the result that it was found that his anus was dilated and the folds were partly obliterated, and the funnel shaped depression towards the anus was present. From all these symptoms the doctor opined that the accused was a habitual passive agent in sodomy. This is proved by the evidence of Dr. S. C. Benerji, Medical Officer Jhunjhunu. It does not appear how this helps the prosecution in the case. The investigating officer has not explained it. It was not the case of the prosecution that the accused and the deceased had some sort of unnatural connection in which the accused acted as passive agent and the deceased as active agent, and that this connection gave rise to the murder of the deceased by the accused. This medical examination was, therefore, altogether unnecessary and the production of the accused for medical examination with this purpose suggests that either upto the 27th of May the mind of the investigating agency was working in the direction that the death of the deceased had something to do with the accused's acting as a passive agent in sodomy or it might be that it was with a view that the accused might be under a constant fear that his disgraceful habit might be flaunted in his face, in case he did not get a confession recorded. It appear from the whole trend of investigation that as much evidence should be accumulated about the accused confessing his guilt as was possible, no matter whether it was relevant or not. The investigating agency might have known that any confession of the accused before a police officer or when he is in police custody was irrelevant and inadmissible. However, in most of the documents which the investigating officer has prepared, he has recorded that the accused confessed about one incriminating thing or the other While making the recovery memo, Ex. P. 6, about a lathi, said to be the weapon of offence, it was mentioned that the accused had confessed that he had killed the deceased with that lathi. Again, while preparing the recovery list Ex. P. 5 about the Irandi it has been mentioned that the accused confessed that he had taken off the Irandi after killing the deceased. Similarly, in the recovery list, Ex. P. 7, about the lota, it has been stated that the accused confessed that the Lota, belonged to the deceased, and that the accused had thrown it into the Kund along with a Handi, after throwing the corpse into the Kund. All these documents, which are in Hindi, were got signed by the accused in Hindi, who appears to know that language well. This could very well create an impression in the mind of the accused that concessionary statements having been recorded in more than one document, which were signed by him, it would not be useful to him to go against those statements. The accused was retained in police custody for full. 8 days for no satisfactory reason, and although he was given about 24 hours' time by the Magistrate to remain in judicial lock up before his confession was recorded on the 29th May, 1950, the impressions could hardly be removed from his immature mind that his confession had already been recorded, and his going back on them would serve no useful purpose. The accused was only 18 years old at the time of his statement in the Session Court on the 29. 5. 1952, so he should have hardly been 17 when his confession was recorded. He was brought by the police from judicial lock up on the 20. 5. 1950, and as soon as he was brought, his statement was recorded. The preliminary questions, which were put by the learned Magistrate were formal questions, excepting one, whether he was going to get his statement recorded on account of any fear or inducement; but here too it was not specified whether he was acting under fear or inducement held out by the police. The boy appears to be a simple boy not very intelligent. It is true that the accused has not been able to substantiate his allegations about beating by any evidence, but there are circumstances in the case which suggest that some force might have been used with him. The accused stated in his confession that when he took the deceased to task for teasing an 11 year old girl, whom he met in the way on the day of occurrence, the deceased gave a beating to him. It is not beyond the range of possibility that this statement was inserted for fear that if any injury was found on the body of the accused and if he happened to complain, it might be explained. Even there may not have been any beating, the circumstances detailed above point to the conclusion that the circumstances were created so that fear may by engendered in the mind of the accused that it would serve no useful purpose, if he did not get his confession recorded. In the case of Emperor vs. Panchkowri Dutt cited above, the reasons given for false confession in his retraction by the accused ware not believed, and still it was found that there were circumstances in the case which made the Court hesitate to hold that the confession was not such as would be excluded as coming within sec. 24 of the Evidence Act, and acting on the principle that in a case of doubt on the question of admissibility of evidence, when it is of such vital importance to the prisoners as their own confessions, one should not hold them as admissible unless one is satisfied as to their relevancy, the confession was held to be inadmissible on account of those circumstances. In this case it cannot be said that before his statement was recorded, the impression created upon his mind by the previous activities of the investigating agency had been wiped off his mind. It is true that he did not retract the statement before he was examined by the Committing Magistrate on the 25th November, 1950, but that was the first occasion when his attention was drawn to his confession under sec. 164 of the Code of Criminal Procedure. It may be that a more intelligent and shrewd man might have taken care to bring it to the notice of the Magistrate or superior police authorities that the confession which he had made was under some threat or inducement, but he being a simple boy of 17 years, it could not be expected of him that he would complain to the Magistrate about the confession before his attention was drawn to it in court. The learned Deputy Government Advocate drew our attention to the ruling in the case of Krishna vs. The State (1) (1952 R. LW. 103.), referred to above, and argued that in that case it was taken into consideration that the accused did not retract his confession on the hearings prior to the date on which his statement was recorded under sec. 342. But there it was held that the accused was a very intelligent man, and full of common sense. In that particular case the factor might have justifiably weighed with the Court that prior to the date of his recording the statement under sec. 342 before the Committing Magistrate, the accused did not complain to the court about the confession having been obtained improperly. But in the normal course, in the case of an average villager, it is difficult to expect that he would make a complaint about the confession before his attention was drawn to it in court, I, therefore, do not lay much importance to the fact that the accused in the present case did not make any complaint against the confession having been obtained improperly before he was asked by the Committing Magistrate to state what he had to say about the said confession. To my mind, it can be said in this case that it appears to this Court that the confession of the accused dated 29th May, 1950, was not altogether a voluntary confession. It is, therefore, irrelevant, and can be excluded on this ground, alone. I may, however, also say that having carefully read that statement, I find that it does not bear a ring of truth. The motive given by the accused for the committing of the crime appears to be altogether absurd. He has said that because the deceased had teased one of his sisters on a previous occasion about a month before the incident, his mind had begun thinking to do away with the deceased. For a month, however, he kept altogether silent. Then he says that on the date of occurrence the deceased teased another girl, which acted as an impetus for the accused to carry out his former resolve of doing away with the deceased. Even then he did not do away with the deceased then and there, although he was in a lonely place. Then the accused says in his confession that when he took the deceased to task, the latter gave him a beating. This incident of beating is alleged to have taken place at about 8 or 8-30 in the morning. The accused did not retaliate then and there, and waited till the evening, when he is said to have gone along with the deceased first to a temple and then to the Kund, and it was after the deceased had broken open the lock of the Kund and had gone to sleep there that the accused is said to have thought of finishing the deceased, and carried out his resolve by giving him four Lathi blows. It does not appear probable why it became necessary for the accused to kill the deceased with four Lathi blows when it was much easier for him to throttle the deceased. According to the prosecution evidence, the accused has two sisters, one who is 24 or 25 years old, was married and the other who was unmarried, was only 10 or 11 years old. No evidence was produced to show which of these sisters was teased by the deceased. It does not appear probable that the married sister was teased. If the unmarried sister was teased, she should have been produced by the prosecution to prove that the deceased had teased her. The story about the teasing of the sister by the deceased a month before the occurrence and the teasing of another girl about 11 years old a few hours before the occurrence appears to be altogether false, and has been inserted only for finding out some motive for this heinous crime. Even if were that the deceased had teased the accused's sister a month back or another girl a few hours before the accurrence,it does not appear to be a strong motive for the doing away of the deceased by the accused, who is said to by an intimate friend of the deceased. The fact that the accused was got medically examined on the 27th May, 1950, suggests that the mind of the investigating agency was working in the direction that murder was the outcome of unnatural connection between the accused and the deceased, and it appears that the theory of the two girls was an eleventh hour invention when probably the accused could not be persuaded to state that murder was the outcome of the unnatural connection. According to the medical evidence, an injury was found in the onus of the deceased, and it appeared to have been caused by forcing of some substance harder than penis. The medical evidence also shows that both the injuries, one on the head and the other in the anus, could cause death. There is nothing in the confession about any injury having been caused to the anus of the deceased when violence was caused to him. I very much doubt about the truthfulness of the confession, and on this ground also it is liable to be rejected, because for the acceptance of the confession it is not only necessary that it should be voluntary, but it should also be true. Having excluded the confession, there remains very little evidence for proving the guilt of the accused. The evidence of Bhuramal, who has deposed that the accused confessed before that he had killed the deceased because the latter had teased his sister, can be very easily discarded. He never made this statement before the Committing Magistrate when he examined there on the 5th August, 1950, rather he said that when he told the accused that the cause of the death should not be hidden from him he denied having any knowledge about it. This witness lied in this respect, and no credence can be given to his evidence. Then there is the evidence of Chandgi, P. W. 15, who has stated that he saw the deceased and the accused going towards the hillock a day before the dead body was found in the Kund. He says that he did not disclose the matter about the dead body to anyone, and that he heard after 7 or 8 days that the deceased had died. The statement is incredible. From the prosecution evidence, it appears that it was only on the 19th of May, 1950, at about 10 A. M. that the fact of the dead body being in the Kund was for the first time discovered by somebody. Even at its lace value it does not go further than that this witness saw the deceased and the accused going towards the hillock. The prosecution produced Kishori Lal, P. W. 4, who simply stated that he saw the accused and the deceased going towards the hillock on 17 of May, 1940, at about 9 P. M. , and that Peda was offered to him by the deceased, who said that it was the Pershad of Balaji, and that afterwards both the boys went towards the Pahari of Balaji. The accused admits that the deceased gave a peda to Kishori Lal, and the evidence of this witness does come to no more than that he saw the two, the accused and the deceased, together on the night of the 17th May, 1950.
(3.) THE prosecution also produced P. W. 7, Sita Ram, whose evidence goes to show that pedas were purchased from him by the accused at about 7-30 or 8 P. M. on the 17th of May, 1950. THE Bahi, in which the entry is made about the purchase of pedas bears no date, and it cannot be said whether this purchase of Pedas relates to 17th of May, 1950, or not. THE accused admits to have purchased pedas from the shop of Sita Ram on the 16th of May, 1950, which was Tuesday, and says that it was for the purpose of offering to Hanumanji. As it is well-known that on Tuesdays Pershad is generally offered to Hanumanji, the statement of the accused appears to be correct in this respect, especially so when we find it admitted by Parmanand, P. W. 5, the brother of the deceased, that Sita Ram had told him that he had sold sweetmeats worth Rs. 4/- to Durga Datt accused on the 16th of May, 1950, in the night time. So the evidence of Sita Ram only shows that Pedas were purchased from his shop by the accused; but it does not prove that it was on the 17th May, 1950, that Pedas were purchased. Rather the inference from the evidence is that he statement of the accused is correct that they were purchased on the 16th of May, 1950. If Pedas were purchased on Tuesday, that is, 16th May, 1950, then the evidence of Kishori Lal well also relate to the 16th of May, 1950, and not 17th of May, 1950, and it being admitted by the prosecution that before night of 17th May, 1950, the deceased had not become untraceable, the evidence of these two witnesses, that is Kishori Lal and Sita Ram, does not help the prosecution. Then the only evidence for the prosecution which is worth noticing is that of Ramniwas, uncle, and Parmanand, brother of deceased. Their evidence only shows that the deceased was on friendly terras with the accused, and that the deceased became untraceable from the night of the 17th May, 1950. It is, however, strange that neither of these two close relations of the deceased cared to make any search for him, when he could not be found. It is still more strange that Parmanand, the real brother of the deceased, having come to know on the evening of 19th May, 1950, that the dead body of his brother had been found in the Kund did not go to the Kund that very day, and waited till the 20th May, 1950 for going there. It is also very strange that having learnt about the murder of his brother on the l9th May, 1950, he did not even inform the police on that day. From the statement of Parmanand in the Committing Magistrate's Court, with which he was confronted, it comes out that besides the accused, the deceased had several more friends, as for example, Phool Chand, Prahlad Rai, Sita Ram, and Badri Prasad. At the time of the trial however, he denied having any knowledge about the other friends of the deceased. This shows that this witness has scant regard for truth. The fact, therefore, that the accused was one of the friends of the deceased is neither here nor there, so far as his alleged participation in the crime is concerned. The only circumstance which gives rise to suspicion against the accused is that an Irandi was recovered from a covered pit in his Chauk, and this Irandi is said to be the Irandi belonging to the deceased. The other circumstance is the recovery of the Lota from the Kund about which the witness Badri, P. W. 7 has stated that it was borrowed from him by the accused and the deceased on the 17th of May, 1950. It is difficult to believe how this witness could remember the exact date when he was examined in the case after a fairly long time. It may be that it may have been borrowed a day or two before the 17th May, 1950. So far as the Irandi is concerned, the accused says that it belonged to him, and the manner in which it was identified does not satisfactorily prove that it belonged to the deceased. It is admitted by Mr. Sugan Chand, the Magistrate before whom identification took place, that the Irandi was kept uncovered, and it was brought to his house for identification from the Nazarat. The Irandi was also torn, and it cannot, therefore, be said that the identifying witnesses could not have learnt the details necessary for identification before they actually identified it. The fact that it was recovered from a pit also does not raise any adverse inference against the accused, when it is found that a Payajama belonging to the accused was also recovered along with it from underground. To my mind this circumstantial evidence, although it creates a certain amount of suspicion - may be strong suspicion - -against the accused, is not enough to found a conviction on. It is a well-known principle of law that conviction can be founded on circumstantial evidence alone, if it cannot be explained on any other hypothesis than that of the guilt of the accused. To my mind, the conviction of the accused cannot be sustained. The appeal is allowed, the conviction and sentence are set aside, and the accused is acquitted. He shall be released at once, if not required in connection with any other case. - I have read the judgment of may brother Sharma and would like to add a few words. The main evidence in this case consists of retracted confession of the accused. Two points arise with respect to that confession, namely (1) whether it was made voluntarily, and (2) whether it is true. My brother Sharma has held that there are circumstances in this case to suggest that the confession was not made voluntarily, and that it does not bear a ring of truth. I generally agree with the reasons given by him for coming to these conclusions. ;