EMPEROR Vs. BHAGWANDAS BISESAR

JUDGEMENT

(1.) THIS is; a case in which the two accused are charged with having committed the offence of murder under Section 302 of the Indian Penal Code and also with having voluntarily caused hurt in committing robbery under Section 394 of the Indian Penal Code.

(2.) A preliminary question has arisen at the commencement of this trial with regard to the admissibility of a statement made by accused No.2 before the Coroner of Bombay at the end of the inquest proceedings on February 9, 1940.

(3.) I have already said that it is alleged by counsel for accused No.2 that he was induced to make his statement by the hope or promise held out to him, which I have referred to before. No.2 in his statement to me only said that he was promised to be let off if he made it he did not mention his being made an approver. Two police-officers were examined by the prosecution before me, although strictly speaking, according to the judgment of the Appeal Court which I have referred to before, it was not necessary for the prosecu-tion affirmatively to prove that the confession was freely and voluntarily made. Both these officers were also cross-examined on behalf of accused No.2, and they both denied having ever made such a promise or held out such a hope. If such a promise or hope was held out by responsible police-officers to the accused, I have no hesitation in saying that it would be not only improper but dishonourable on their part not to have carried out the promise, unless there was any special consideration which made them hesitate. I have no evidence to the contrary on behalf of the accused, and I see no reason why I should disbelieve the testimony of two responsible police-officers, one of whom occupies a high position in the police force, that no such hope or promise was held out nor given. It is true that before the statement was made accused No.2 had been in custody for nearly fifty days, and the fact and duration of police custody of a confessing accused has, as pointed out by Jenkins C.J. in Jogjibam, Santosh and Surendra v. The King-Emperor (1909) 13 C. W. N. 861 a material bearing on the question whether the confession is voluntary or not. (See also Queen-Empress v. Naraym (1901) I.L.R. 25 Bom. 543, 546: s.c. 3 Bom. L.R. 122) The length of time during which he was in custody is certainly an element to be taken into consideration before accepting the testimony of the police witnesses. It may be here mentioned that the length of time was in one respect at least due to the difficulty in tracing the witnesses and completing the investigation. It is also necessary, in order to determine the admissibility of the confession to read the confession itself as a whole. No doubt, it is a long statement. But on carefully considering it, I do not think that a statement of this nature would have been asked for or expected as a return for the alleged hope or promise. Originally, three persons were put under arrest, namely, the two accused and one Baboo Cheena. Baboo Cheena was released by the police as no evidence was found against him, and yet in this statement made by No.2 the major portion of it seems to deal more with the alleged guilt of Baboo Cheena than of Nos. 1 and2. It is on that statement that Baboo Cheena was re-arrested and put up before the Magistrate, but the Magistrate could find no evidence against him. I cannot hold that this statement is the outcome, directly or indirectly, of the alleged hope or promise. In passing, I would refer to Section 28 of the Indian Evidence Act, which says that if such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully rempved, it is relevant. I need not deal with this Section beyond citing it, because holding as I do that no such promise was held out, the question does not arise whether the impression created by it had been removed before the confession was made.