EMPEROR Vs. CHAVADAPPA PUJARI

JUDGEMENT

(1.) AFTER stating the facts of the case, the judgment proceeded: All the convicted accused have appealed to this Court, and the question is whether the accused who have confessed are guilty because of their confessions and production of property and the remaining accused guilty on the ground that they produced stolen property after having known or reason to believe that it was taken in dacoity. I will first deal with the confessions of accused Nos. 1, 3 and 7, because the prosecution relies on those confessions not only as against the confessing accused but also against the other accused who have been mentioned in them. As regards the confession of the first accused, it was made on February 14 before the Magistrate at Navalgund. On the 13th the Sub-Inspector took this accused as well as accused No, 3 to Navalgund and the confessions were made on the next day. It is stated by accused No. 1 in his confession that he along with several other accused went to Hiremannur for the purpose of committing dacoity and some of the accused were armed with weapons. He himself did not go into the village but asked some of the other accused to go and he and one Rayappa remained in a field outside the village. It is stated further that some of the accused went to the village and after midnight they returned to the field after committing the dacoity. Thereafter they all went to a field near Datnal about half an hour before day-break and divided the booty which consisted of several gold and silver ornaments as well as cloth. Then the accused further stated that he took the property which fell to his share and concealed it below a Yekki tree in his field. On the next day the Police Sub-Inspector came and the accused was beaten and was forced to make a statement and thereupon he made a statement. The accused finally stated that he took the police to the place where he had hidden the property, pointed it out and handed it over to the Sub-Inspector.

(2.) IT is urged by Mr. Jahagirdar on behalf of the defence that this confession is neither true nor voluntary and should also be rejected on other grounds. The main grounds on which it is challenged are, firstly, that the Magistrate did not give the accused sufficient time for reflection, that the accused was beaten and made to confess, that at the time when the confession was made the Magistrate did not examine the accused's body, and that the Sub-Inspector of Police was present at the time when the confession was taken. IT is further urged that the confession was not taken down by the Magistrate in his own handwriting, nor did he make a memorandum as required by a. 364 of the Criminal Procedure Code, and it is finally urged that instead of one certificate the Magistrate appended two certificates below the confession. Now, as regards the first ground, although it is true that the confession was made on the next day after the accused was handed over to the Magisterial custody, there is nothing whatever to show that that period was not sufficient for reflection. There is no-statutory period of time to which an accused is entitled for making a confession after he is sent to the Magisterial custody. All that is required is that he must have sufficient time for reflection, and the mere fact that the confession was made one day after the accused was handed over to the Magisterial custody would not by itself show that he had no sufficient time. I do not think, therefore, that the confession is bad on that ground. As regards the second ground that the accused was beaten and made to confess, he has not stated in the confession that it was taken by the police by beating him. If he had said that, the confession would not have been taken down at all. What is stated is that he was beaten at the time when the police took him for production of the property on the 12th. The confession, however, was made on the 14th. There is nothing to show that the alleged beating for taking his statement, which even is not proved on the evidence, was given for the purpose of extorting his confession. That ground also must be rejected. Then it is urged that the learned Magistrate recording the confession did not examine the accused's body as admitted by the Magistrate himself. IT is true that the Magistrate says that he did not examine the body. But he further says that the accused did not complain to him that he was beaten at all. If the accused had so complained, it was certainly the duty of the Magistrate to examine his body, but in absence of such complaint I do not think that the mere fact that the Magistrate did not examine his body may be regarded as an invalidating circumstance for the confession. IT is then urged that the accused was brought by the Sub-Inspector before the Magistrate and that the confession was taken in his presence. On this point the learned Magistrate, who has been examined in this case, stated in his examination-in-chief that the Sub-Inspector had brought the accused for his confession, but he also said that he was directed to leave the place before recording it. In his cross-examination he says that the Sub-Inspector brought this accused as well as accused No. 3 to him on the 14th for their confessions but that he cannot say who brought them. He says that as soon as the accused were brought before him on the 13th, he questioned them whether they had been ill-treated by the police, and he noted on the yadi that there was no complaint against the police. The Sub-Inspector says in his deposition that before accused Nos. 1 and 3 were brought to the Magistrate for their confessions on the 14th, he had gone to the Magistrate to take accused Nos. 2 and 3 in his custody on remand, and while he was there, accused Nos. 1 and 3 were brought before the Magistrate for recording their confessions, and the Magistrate directed him to go away. On this evidence it cannot be said, in my opinion, that the Sub-Inspector was present in the room when the confession of accused No. 1 was taken by the Magistrate. IT is no doubt proved that the Sub-Inspector was in the Magistrate's Court on the 14th because he wanted to take a remand order for accused Nos. 2 and3. But the learned Magistrate himself says that he asked the Sub-Inspector to leave the place before the confession was recorded, and I do not see any reason to disbelieve him, and the Sub-Inspector also says that the Magistrate asked him to go away. Then as to the contention that the confession was not taken by the Magistrate in his own handwriting and had not made any memorandum thereof, the learned Magistrate admits that he did not make any memorandum of the confession in English, but that the confession was recorded in the vernacular in his presence and he has appended this certificate at the end of the confession. No doubt under Section 164 read with Section 364 the Magistrate has to make a memorandum in his own handwriting, but that defect, as we have recently held, is cured by the provisions of Sub-section (1) of Section 533 when the Magistrate is examined in the case. As the Magistrate has been examined and has given a satisfactory explanation of the same, I do not think the omission to make the memorandum in the Magistrate's own handwriting makes the confession inadmissible in evidence. Lastly, the contention that there were two certificates at the end of the confession instead of one has no force in it. Really speaking a note has been added to the certificate which is attached to the confession, and the note simply states what the Magistrate did after the accused was produced before him. That note is not a part of the certificate. There is, therefore, no substance in that contention. In our opinion, the confession of accused No. 1 must be regarded as true as we'll as voluntary and it is undoubtedly evidence against him. The confession of accused No. 3 is also challenged on the same grounds, and for the same reasons which I have given above, his confession must also be regarded as true and voluntary. As regards the confession of accused No. 7, he made it in the afternoon of the 14th before the Magistrate at Ron, and the inherent evidence of that confession shows that it must be true as well as voluntary. This accused says that he and accused No. 1 did not take part in the commission of the dacoity itself, that they were watching the clothes of the other accused, and they were sitting outside the house, Then he says that the other accused came to the field after committing the dacoity. The property was divided among the dacoits and he got for his share five tolas of gold and some clothes. There is nothing to show whatever that the accused made his confession at the instigation of the police, and we, therefore, regard it as true as well as voluntary.

(3.) THE same general principle would apply though with less force where the stolen articles are merely pointed out and produced by the accused from a place of which he had only joint possession. It must, however, be noted that dependents of a person living with him cannot be said to be in joint possession of the house for this purpose as they are in occupation under him and not independently of him. In cases of joint occupation it is sometimes difficult to decide whether the person in such occupation of the place producing the property should be regarded as being in its possession. Generally speaking, in all cases of joint possession of a place from where the property is produced, the possession of the articles must be clearly traced to the accused as held in Empress v. Malhari (1882) I. L. R. 6 Bom. 731.