(1.) The appellant in this case was accused No. 2 in case No. 9 of 1982 in the Sessions Court of Satara, and was charged with having committed the murder of the infant child of accused No. 1 on the morning of October 24, 1931, near the Wathar railway station on the Southern Mahratha Railway line, somewhere near the road leading from Wathar to Wai. Accused No. 1 was charged with abetment under Section 109, Indian Penal Code. She was found not guilty, and was acquitted and discharged. The appellant was sentenced to transportation for life with a recommendation for reduction of the sentence.
(2.) The appellant is the widowed daughter and accused No. 1 is the widowed daughter-in-law of one Govind Ganu, and they were all living in the village of Raranjkhop which is about seven miles from Wathar. The prosecution story is that accused No. 1 conceived through her father- in-law Govind. When her pregnancy had advanced about seven months, she was sent out of the village for delivery accompanied by the appellant and another. Together they first went to Bhuinj which is about fifteen miles from Wathar, where accused No. 1's parents lived. Accused No. 1's parents refused to harbour her, and thereupon the party proceeded to Poona. The same thing happened in Poona, and as no one harboured them in Poona, the party proceeded to Bombay and went to the place of their relative Anandrao. Anandrao also refused to harbour them. They stopped at his place for two or three days, and then they all returned to Poona. From Poona accused No. 1 alone first went to Bombay. She was sent to the Motlibai hospital on September 10, 1931, but was discharged. Later on she was sent again to the hospital, and was delivered of a male child on October 16, 1931. About a day or two after she was delivered, the appellant went to Bombay to meet accused No. 1 and to bring her back to the village. Both accused No. 1 and the appellant returned to Poona and rested at the dharmashala near the Poona station. Then they took the train from Poona, and got down at the Wathar station early morning at about 5 a.m. on October 24. After waiting at the station for some time they proceeded on foot towards the village of Karanjkhop. The prosecution story is that both accused No. 1 and the appellant Bat down on the way to the village, and the appellant took the infant child from the hands of its mother, went at some distance, throttled the child to death, and kept the dead body on an otta near the road, bringing back the red cap which was purchased for the child at Poona. On the evening of the same day Babaji Daji Ramoshi (Exhibit 7) was informed that a corpse was lying somewhere near the road. He in turn informed the Police Patil and took the Police Patil to the spot where the dead body was lying. Thereafter the police investigation commenced, and accused No. 1 and the appellant were arrested on November 12, 1931. They were placed before the First Class Magistrate of Koregaon on November 13, and their confessions were recorded on November 14,1931.
(3.) Exhibit 42 is the confession of accused No. 1. But as her confession did not suggest any inference that she had committed the crime and was self-exculpatory, the learned Sessions Judge did not rely on it, and giving the benefit of the doubt to accused No. 1 acquitted her. The appellant also made her confession, and it is on the strength of her confession (Exhibit 45), which was subsequently retracted, that she was convicted and sentenced as above. The confession was recorded by the Magistrate who put to her certain questions, but according to the record before us he did not put to her the question which is enjoined by Section 164(3), Criminal Procedure Code. The first question put to her was whether she was beaten by anybody for making the confession, and she answered in the negative. The second question that was put to her was whether she was threatened or induced to make the confession, and she answered again in the negative. The third question that was put to her was whether she was willing to make the confession notwithstanding the fact that it would be used in evidence against her, and she answered in-the affirmative. Section 164(3), however, requires that a Magistrate shall, before recording a confession, explain to the person making it that he is not bound to make a confession, etc. That question was not put to her according to the record, and the Magistrate failed to record the warning, namely, that he had explained to her that she was not bound to make a confession. I may also mention that the warning appears in the certificate appended at the end of the confession, but that certificate was written out by the clerk and was signed by the Magistrate. The section distinctly requires that it is the Magistrate who shall explain to the accused that she was not bound to make a confession, and it also requires that the Magistrate shall make the necessary memorandum. This defect in the confession was sought to be cured by calling the Magistrate in evidence before the learned Sessions Judge. He was examined on March 81, 1932, that is, about four months and a half after the confession had been recorded. He stated in his evidence that he had warned the appellant that she was not bound to make the confession, and that it would be used against her if made. In his cross-examination he stated that he actually put the question that she was not bound to make the confession, but he says that he failed to write it out, and the reason why be says he did not write was, to give his own words, that " she could not understand the words, You are not bound in law to make the confession." " He, therefore, used "simple" words, and told her that she was not bound to make the confession. The question, therefore, that arises for consideration is whether the confession which has been duly recorded satisfies the requirements of the statute and is relevant and can be used against the appellant, irrespective of whether the statements in it are corroborated in all material details and particulars. The evidence of the Magistrate was evidently taken under the provisions of Section 533 of the Criminal P. C., and that section provides that where any of the provisions of either Section 164 or 364 have not been complied with by the Magistrate recording the statement or confession, the Court shall take evidence that such person duly made the statement, and notwithstanding anything contained in the Indian Evidence Act, Section 91, such statement shall be admitted, if the error has not injured the accused as to his defence on the merits.