EMPEROR Vs. AZIM-UD-DIN

JUDGEMENT

(1.) AZIM-ud-din, aged 22 years, has been convicted of an offense under Section 302 of the Indian Penal Code and sentenced to death, the ease has been referred to us by the Additional Sessions Judge of Meerut and we have before us an appeal put in by the convict. The accused has been presented in this Court by the learned Counsel and the case very fully argued before us. There is also a petition of appeal sent in from jail and we have Been this also. The alleged murder took place on the night of the 15th December 1919 and it is said to have been committed about 8 P.M. The boy who was murdered is said to be 20 years of age. It is not open to doubt that the boy Kailashi Ram died from the effect of some violent act committed upon his person. Different reasons are given for the cause of death, but we have nothing absolutely safe to act upon except the evidence of Dr. Hafizullah, Assistant Civil Surgeon, who unfortunately never saw the body until, as he considered, some six days after death and it was at the time in an advanced state of decomposition. He gives an account of the state in which he found the body, and in his opinion he could only safely say that the death of the deceased might have been caused by-shook. One can see from his evidence that he doubted very much whether it was a ease of strangulation. He says that the chief signs of strangulation were destroyed by advanced decomposition. He found both sides of the heart empty and he tells the Court that the emptiness of both sides of the heart was a symptom of death from shock, such as a blow over the epigratio region. We have been taken through the evidence and we have read the judgment. The learned Additional Sessions Judge has recorded a very lengthy judgment, in which he favoured the idea that death was due to strangulation. He gives soma reasons for forming this opinion, but they are not of a convincing nature. He really, although he does not say so, rests the case upon the statement made by the accused AZIM-ud-din. This is to be found at page 11 of the papar book. It is a statement which was undoubtedly made by AZIM-ud-din before Rai Sahib Ratan Chand, Magistrate, 1st Class, of Muzaffarnagar, on the 20th of December 1919. It is well at this juncture to turn to the evidence of Abdul Ghaffur Khan, Sub-Inspector, Khatauli, to be found at page 26. He says that he got the first information about the murder on the 16 th of December 1919. It was on the 19th of December, after he had been apparently on investigation for some three days, that he got information at 10 o clock at night to the effect that the boy s body was discovered in a heap of rubbish. He had the corpse taken out in the presence of Zamindars and had it identified and also the clothes. He could find no wound on the body His suspicion rested upon one Litif. He sent for Latif and examined him. Latif denied all knowledge. Then the Sub-Inspector says that he placed the Koran on Latif s hand and asked him to tell the truth. It is then that he revealed the name of AZIM-ud-din. From what AZIM-ud-din said of a knife which, according to AZIM-ud-din, had been abstracted from the pocket of the deceased and given to one Musammat Saidan, the Sub Inspector went with the accused to Musammat Saidan s house, re-covered the knife from her and then and there arrested the accused. He sent him to a Magistrate to mike a statement which was made before B. Ratan Chand, as already stated in this judgment. We have examined the statement very carefully. The first thing which struck us about it was that it did not appear to have been made in strict accordance with the Rules which have been prescribed by this Court for taking evidence of this nature. The next thing is that it was a statement that wanted in considerable details--details such as could be brought to a check by evidence on the record and judged by that evidence. All that it says is matters that could have been easily got, and probably have been got, from the investigation which the Police Officer had made. As regards the actual deed of violence AZIM-ud-din simply tells us this that when Kailashi, the murdered boy, same out of the house to which he had gone, he, AZIM-ud-din, caught him in the lawn in front of the door and strangled him with his hands and he died instantly, and that he killed him because he bore a grudge against the boy for calling him bad names. This is really the sum total of the statement regarding the manner in which the boy was killed. He does speak of carrying away the dead body and burying it, but there is no evidence whatever on the record bearing upon this point. It seems to us very doubtful, considering the time revealed by the statement of AZIM-ud-din, that it is the true and actual statement of what did take place. The only motive that AZIM-ud-din assigns for having acted as he did was that the boy used to call him bad names and so he has killed him. The learned Magistrate tells us that the accused was told that the statement was being made before a Magistrate and that no hope of pardon should be entertained and that no Police official was present. This very meager recital of what must have taken place does open a suspicion that the statement may have been a taught statement easy to remember and easy to repeat, Not a single question appears to have been asked to the aroused and there is in consequence no answer recorded. One of the best ways of testing a confession is to introduce incidental questions and so gather some test as to whether the statement may not be a taught statement repeated. The difficulty is that the statement is so meagre that knowing the darger that surrounds the making of confessions in India, one does not care to act upon it unless and until it is corroborated by other matters upon the record. If we exclude this statement, there is nothing on the record which can account for the sudden onslaught upon this boy by AZIM-ud-din and the doing of him to death. We cannot understand why the learned Magistrate, who was examined, tells us that the Urdu version, which is the one that we have specially considered, was written under his direction and supervision by his reader. He thinks that the accused was fully in his senses when he made the statement as there was no sign to suggest that he was drunk or in any way intoxicated. Then there is another curious paragraph which is not helpful to one who is considering the confession. The Magistrate tells that be thinks the accused present in Court is the man who made the statement and that he had to record the statement of a large number of parsons One would expect to find more strict compliance with the provisions of the Rules of this Court concerning the recording of confession by a Magistrate of the 1st Class, who says that he has recorded many confessions. We must confess that we entertain considerable doubt as to whether we have before us a voluntary and genuine confession made by AZIM-ud-din. His feelings were undoubtedly worked upon, for he at first denied the statement altogether and only made it when he was coerced, and he retracted it on the first possible opportunity. The assessors were divided in their opinions and we feel that we entertain a doubt the benefit of which must be given by us to the accused. The appeal is allowed, the conviction and sentence are set aside and the direction of the Court is that the accused be forthwith released from custody.