EMPEROR Vs. KEHRI

JUDGEMENT

(1.) This case has been submitted by the Sessions Court of Aligarh for confirmation of sentence of death passed upon Kehri, Aheria, and two brothers, Bansidhar and Kanhaia Lal. We have also to consider appeals filed by all three convicts and all three are represented in Court by the same learned vakils. The learned Judge has considered the case in a very long and elaborate judgment, and I do not propose to go into the facts at any great length except as they bear upon the real issue which was raised in appeal before us.

(2.) The fact that Ghafur Bakhsh, a printer and publisher at Agra, and his manager, Muhammad Ayub, were murdered on the 13 of April 1906, is not denied and is abundantly proved. The questions which I have really to consider are, first whether Kehri was or was not one of the persons who murdered Ghafur Bakhsh and Muhammad Ayub; secondly, whether Bansidhar and Kanhaia Lal, either or both of them, instigated Kehri to commit the murder above mentioned. I think it well to state at once that the case before us is one in which, if we were to exclude from consideration the statement made by the convict Kehri and recorded by a Deputy Magistrate on the 12 of June 1906, no conviction could follow. The statement is corroborated by other evidence, but most certainly the facts disclosed by that evidence are not of themselves sufficient to support a conviction, I therefore propose to state why, after most prolonged and careful consideration, I am satisfied that that statement is a true and reliable statement. If that statement is true, Kehri was one of the murderers, and Kanhaia Lal and Bansidhar instigated the murder, The statement made was, however, retracted on the 25 July 1906. In the Court of Session and also before us, Kehri says that he was forced to make the statement under severe police pressure, and there is evidence which shows that he was prepared to withdraw, if he did not actually withdraw, it as far back as the 16 and 17 of June. Mr. Satya Chandra, who confined himself to the case of Kehri, contended that as regards Kehri the confession was inadmissible, first, because it was made by Kehri while in police custody, and, secondly, because it was made by Kehri under distinct inducement offered him by the police to make it. Mr. Kedar Nath, who confined his arguments to the cases of Bansidhar and Kanhaia Lal, contended equally strongly that as against his clients the statement having been retracted could not be considered at all, and even if it could be considered, it could not be proof of any facts against his clients and could only at the utmost be used to supplement evidence which in itself and by itself was sufficient to convict them of the offence charged. There being no such evidence on the record, to convict Bansidhar and Kanhaia Lal upon the so-called confession of Kehri would be illegal.

(3.) I am fully conscious that the fact that the confession was retracted and that independently of it there is no evidence which would be sufficient to convict the accused of the several offences with which they have been charged, makes it necessary to examine the confession most carefully and to consider with equal care the circumstances under which it was made.