MAROTI JAGO KUNBI Vs. EMPEROR

JUDGEMENT

(1.) MAROTI , Sitaram and Gulab were tried in the Court of the Sessions Judge, Nagpur, on the charge of murdering one Raghudeo, a money lender of Khurasgaon in the Saoner Tahsil on 23rd April 1939. Gulab was acquitted and Maroti and Sitaram were found guilty of the offence punishable under Section 302,I.P.C., and sentenced to death subject to confirmation by this Court. Maroti and Sitaram have preferred separate appeals and this judgment governs the disposal of both. A dead body was discovered on the Bengal Nagpur Railway line about a mile from Saoner not far from the village of Khurasgaon where the parties reside. It was first observed by the driver of the night train which had therefore to be pulled up. The body was identified by the local people as that of Raghudeo, a money-lender of Khurasgaon village. In the course of the investigation Sitaram made a confession which was recorded by Mr. R.D. Beohar, Magistrate, First Class, under Section 164, Criminal P.C. Sitaram also pointed out the place where the murder had taken place. That was in the field of one Nanhu and a sample of earth was taken from the spot pointed out by him and sent to the Imperial Serologist who declared that it was stained with human blood. Maroti also produced from the hedge round his garden which was close to the place of the murder, a piece of bamboo, article R, which as declared by the Imperial Serologist was stained with human blood. On the strength of these and the oral evidence in the case the learned Sessions Judge concluded that both Maroti and Sitaram were guilty of the murder.

(2.) THE evidence against Sitaram mainly consists of his confession which was recorded by Mr. Beohar on 29th April 1939. He retracted it in the committing Magistrate's Court. It is now well settled that a confession, though retracted, is admissible against the person making it, provided that the Court is satisfied that it was voluntarily made. The confession is attacked on the ground that in the absence of a certificate as required by Section 164(3), Criminal P.C. it was inadmissible in evidence. Reliance is placed on Nazir Ahmad v. Emperor (1936) 23 AIR PC 253 and Neharu v. Emperor (1937) 24 AIR Nag 220. It was pointed out by a Bench of this Court in Baliram Singh v. Emperor (1939) 26 AIR Nag 295 that no-thing that was said in the two cases stated above was applicable to a case such as this where the only irregularity consisted in the Magistrate's failure to observe all the formalities described in Sub-section 3 of Section 164, Criminal P.C. As the learned Judges did in that case, we have again to impress upon the Magistrates the supreme necessity of exercising carefulness in every detail connected with the recording of confessions as their carelessness in this respect not only results in lengthy arguments which are avoidable but also creates difficulty in the admission of what in many cases is an essential piece of evidence.

(3.) IN Neharu v. Emperor (1937) 24 AIR Nag 220 the placitum of the report no doubt supports the appellant's contention but the circumstances of that case are clearly distinguishable from those in the present case and the exposition of the law made there must be understood as applying to the peculiar facts of that case. At p. 270 the learned Judges pointed out that the confessional statement itself was open to such criticizm that no reliance could be placed on it. The accused's signature itself was not taken. The confession produced in that case was itself characterized by the learned Judges as being more of an inquisition than a confession, and the Magistrate had examined the accused person with the aid of a note prepared by the Sub-Inspector. It is therefore clear that in that case there was not merely a formal defect but a defect which affected the substance of the confession itself. Nobody can contend in a case such as this, that the confession could be cured by Section 533, Criminal P.C.