ANTAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Appellant Antappa had been charge-sheeted before the Magistrate at Yadgir for having committed the murder of his son Girappa, about four days prior to the Ugadi day of 1957. After the necessary preliminary enquiry, the said Magistrate framed a charge against the accused for an offence Punishable under Section 302 of the I. P. C. and committed him to take his trial before the Court of Sessions at Gulbarga. The learned Sessions Judge of Gulbarga who tried the appellant, in Sessions Case No. 31/8 of 1957 or the file of his Court, modified the charge by adding thereto an additional charge for an offence under Section 201. of the I. P. C., for the accused having buried the corpse on the next day after the offence. The case of the prosecution was that Girappa who was the son of the accused person had been working somewhere at Bombay and that he used to be coming now and then to his native village, namely Konakal of Yadgir Taluka and that on such occasions there used to be quarrels between himself and his father the accused; it had been suggested by the prosecution that Girappa was a drunkard and that he used to frequently quarrel with his father demanding money from the latter. The prosecution case was that in consequence of those quarrels, the accused had killed his son Girappa about four days prior to the Ugadi of 1957 and had buried the dead body in the bed of a stream. The investigalion by the Police appears to have started as a result of rumours in the village that Girappa had been murdered by the accused. The accused was arrested on 13-5-1957 by the Police Sub-Inspector P. W. 14; according to the prosecution on the information furnished by the accused, an exhumation took place on 15-5-1957, in consequence of which, portions of a dead body in a highly decomposed stage were recovered from the bed of a stream near Konkal village. According to the medical evidence, the dead body had been buried more than a month previously. There were no eyewitnesses to the occurrence; the prosecution rested their case on three main grounds, namely,-

(2.) The main contentions which have been urged by Sri Malimath the learned Advocate on he-half of the appellant are, (1) that it has not been established that the dead body is that of Giroppa and (2), that the confessional statement having been excluded by the learned Sessions Judge, there is absolutely no evidence to show that the person disposing of the dead body knew or had reason to believe either that any offence had been committed or that the dead body constituted evidence of the commission of any such offence. On these grounds, it is urged by him that the appellant is entitled to an acquittal. On the other hand, Sri Santosh the learned High Court Government Pleader appearing for the State while supporting the conviction by the learned Sessions Judge had contended that the learned Sessions Judge was not right in refusing to place any reliance on the confessional statement as per Ex. P-21. He contends that the confessional statement considered together with the fact that it was the accused that pointed out the place at which the corpse was discovered would be sufficient to justify the conviction for an offence under Section 201 of the I. P. C.

(3.) It is no doubt true that the accused has not made any attempt to adduce any evidence in support of his statement that he had been beaten by the Police, that he had got fever and that while he was in that condition he made the statement before the Magistrate. But, on a careful consideration of the arguments addressed by the learned Advocates, we find that there are certain circumstances in the case which raise very grave doubts about the confession as per Ex. P-21, having been a voluntary one. P. W. 15 Sri Murdikar the Munsiff Magistrate of Yadgir, had taken part in the investigation by having been present at the time of exhumation of the corpse and by drawing up an inquest report as per Ex. P-3 to which he appears to have secured the attestation of the accused. As pointed out by the learned Sessions Judge at para 9 of his judgment, it was not proper under those circumstances, that the accused should have been produced before the same Magistrate for the confessional statement being recorded. Though P. W. 15, in the course of his evidence, has staged that he told the accused that he was a Magistrate, there is nothing in Ex. P-21 itself to show that the accused had realty been informed of his being in the presence of a Magistrate. The fact of an accused person having been assured that he is in the free atmosphere of a Magistrate's Court is of the utmost importance for the purpose of determining the voluntariness of a confessional statement. In a decision reported in re, Shivabasappa Rayappa, AIR 1959 Mys 47 (to which one of us was a party), it has been pointed out that the omission on the part of the Magistrate to make known to the accused that he was in the presence of a Magistrate takes away much of the force of the confessional statement. In regard to a matter of such vital importance it was necessary that the Magistrate should have left on record the fact of his having told the accused that he was in the presence of a Magistrate, so that there may be material on record from which the Court of trial could reach the conclusion as to whether the confessional statement was voluntary. In the very same decision above referred to, it has also been indicated that it is not enough if the conscience of the Magistrate is satisfied as to the voluntary character of the statement of the accused, but it is also necessary that the Magistrate should leave such materials on record as would satisfy the Court that sits in judgment in the case that the confessional statement was made voluntarily. Again, in Shantappa Yemanappa Samagar v. State of Mysore, Criminal Referred Case No. 6 of 1958 and Criminal Appeal No. 133 of 1958 which was recently decided by us, we had occasion to point out the need for the Magistrate to put down in the record of the confession itself every circumstance and every detail which is necessary for the Court of trial to determine whether the confession was made voluntarily. In the present case, it is in no way improbable that the accused person may very well have been under the impression that P. W. 15 was connected with the Police as he had taken part in the exhumation of the corpse shortly before, ft was very necessary under those circumstances, for P. W. 15 to have made a clear record of his having informed the accused that the accused was in the presence of a Magistrate and that the accused was under no obligation to make any confessional statement. The subsequent statement by P. W. 15 that he had informed the accused that he (P. W. 15) was a Magistrate is not, in our opinion, a sufficient substitute, in the circumstances of the case, for an actual record made at that time alone to show that the accused had been so informed. We are not satisfied as to the voluntariness of this confessional statement and we think that the learned Sessions Judge was right in refusing to place reliance on Ex. 21.