1956 Supreme(SC) 102

SUPREME COURT OF INDIA
26th November 1956
B. JAGANNADHA DAS, SYED JAFER IMAM AND P.GOVINDA MENON, JJ.
Ram Chandra and another, Appellants
Versus
State of U.P., Respondent.
Criminal Appeals Nos. 133 & 134 of 1956.
Advocates Appeared
Dr. J. N. Banerjee, Senior Advocate, (Mr. P.C. Agarwala, Advocate, with him), for Appellant in Cri. Appeel No. 133/56. Mr. G.C. Mathur, Advocate, for Appellant in Cri. Appl. 134/56, Mr. S.P. Sinha, Senior Advocate, (Mr. C.P. Lal, Advocate with him) for Respondent in both the Appeals.

Headnote:(78A) Sections 164, 367-Confession-Confession recorded in jail not proper-U.P. Mauua) of Government orders, 1954, Appendix 19, R.1 Evidence Act, 1872, Section 24.

       Corpus delicto not traceable-Proof of murder solely dependent on retracted confession--Improbability of manner of murder-Benefit of doubt.

       Held: The first rule in the Manual says that confessions may ordinarily be recorded in open Court and during court hours unless for exceptional reasons it is not feasible to do so. This is a very important provision which emphasises that the magistrate in recording confession is exercising part of his judicial function in the manner prescribed by law. A confession taken in jail without any adequate reason there for and in disregard of the instructions contained in the Government orders is improper. - U.P. Manual of Government Orders, 1954, App. 19, R. 1 Place of recording confession-Confession recorded in Jail not proper Criminal Procedure Code (1898), Section 164.

       Held: The first rule in the Manual says that confessions may ordinarily be recorded in open Court and during court hours unless for exceptional reasons it is not feasible to do so. This is a very important provision which emphasises that the Magistrate in recording confession is exercising part of his judicial function in the manner prescribed by law. A confession taken in jail without any adequate reason therefore and in disregard of the instructions contained in the Government orders is improper. - Sections 300, 302, 364, 3~6, 34, 109, 120B-Murder-Corpus delicti not traceable--Retracted confession only proof of murder-Manner of murder improbable-Be with of doubt.

       Recovery of ransom under threat of murder of son-Confession of co-accused- Use of.

       Accused acting under common intention and common conspiracy-Conviction and sentence-Concurrent finding of fact by court below-No Interference by Supreme Court.

       According to the prosecution case, the appellants, along with five others who were acquitted, conspired to extort a sum of Rs. 10000 from C by kidnapping and murdering his son. Both of them were living in the same street in Allahabad as C. The boy O was in the habit of going to appellant, Rs house now and then and mixing with the members of that family including R. In pursuance of a conspiracy between the two appellants and the acquitted accused, the boy was taken by the two appellants and One S to the river Jumna on the evening of 9th June 1952 on the pretext of teaching him swimming and drowned him there forcibly and also stabbed him with knife. Having thus brought about his death and disappearance on that evening, they sent a series of threatening letters purporting to be from one Zalim Daku on various dates commencing from June 10, up to July 4 1952 and pretending that the boy was in his possession and that if a sum of Rs. 10000 would be paid up he would be restored or otherwise he would be beheaded. During this period they were constantly moving with C posing themselves as his friends to help him in tracing the boy but in fact misle1ding him from the right track and persuading him to agree to pay up the amount in order that he may be able to recover the boy. C ultimately agreed to pay Rs. 5000 and in fact arranged to pay the S1me in the manner which the letters from Zalim Daku indicated. The letters also undertook that the boy would be restored the next day after the payment .But ultimately the boy was not restored though the money was taken away. During this period the police were also on the track as C had lodged a complaint to the police about the dis-appearance of the boy on .June 10 1952 and he was also ke2ping the police in touch with all the stages and was handing over to them then and there every letter that he was receiving from Zalirn Daku. When he paid the ransom on July 4 he to k the Step of previously producing before the Additional District Magistrate the currency notes of Rs. 5000 and getting their numbers noted by him. The police traced the possession of some out of these notes to the appellants. Investigation showed that all the letters received by C purporting to have been sent by Zalim Daku were in the hand writing of the appellant R, according to the opinion of the handwriting expert. No trace however of the boy could be found. Not only was the dead body not found but absolutely no other material had been discovered which would ind cate either the factum of murder or the perpetrator thereof. Both the app31hnts were arrested on July 6, 1952. R made a confession before a Magistrate on October 10. The appellants were there after tried and convicted in respect of charges under S. 120•B, Ss. 302, 201, 364 and 386 read with S. 12 -B or in the alternative with 8. 34 of the Indian Penal Code and were sentenced to death and to various terms of imprisonment under different counts. No separate sentence was awarded in respect of the offences under S. 120-B.

       Held: (1) It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicli being found. There may be reliable evidence, direct or circumstantial of the commission of the murder though the corpus delici are not traceable. But the question here is whether the con ession by the alleged murderer, by itself, and without more is enough as matter of prudence, if not of law, to base a conviction for murder thereupon. Normally speaking it would not be quite safe to do so, though it cannot be laid down as a matter of law. In this particular case the con ession of R is clearly open to a good deal of criticism, and has be0n taken in jail without adequate reason, and the story of murder as given ill the confess in is somewhat hard to believe. Conviction for murder therefore cannot be based on confession alone.

       No doubt in a case where there is other clear and reliable evidence of murder such a description of manner in which the murder was committed might be of no serious consequence. But where the proof of the factum off the murder is itself solely dependent upon the confession the apparent improbability of the manner in which the murder is said to have been brought about in the confession would be cogent circumstance against the confession being relied upon. The confession in this case is not safe to be acted upon, at least, in so far as the commission of murder is concerned. Both the appellants are entitled to the benefit of doubt in respect of the offence of murder, and they must be acquitted in respect of the offences under Ss. 302 and 201 read with Ss. 120 B and 34, Penal Code.

       (2) So far as the appellant R is concerned the circumstantial evidence against him in respect of both the offences, namely, Ss. 364 (kidnapping) and 386 (extortion), Penal Code, is clear. On the finding that the various ransom letters are in his hand-writing and on the finding that a very large number of the noted currency notes which formed the ransom money was traced to his possession, there can be no doubt as to his conviction under S, 386, Penal Code. It may be that normally it is not safe to treat expert evidence as to hand-writing as sufficient basis for conviction. But in this case the authorship of the letters has been held by the courts below to be that of appellant R, on various items of external and internal evidence, in addition to the opinion of the expert. As regards the charge against him under S.364, Penal Code, for kidnapping, though there is no direct evidence, the various ransom letters categorically state that the missing boy is in the custody or control of the writer thereof. It is asserted therein that on payment of the ransom money, the boy will be restored at a particular time and place. It may also be mentioned that though it had been considered unsafe to act upon the confession as basis for the conviction in respect of murder, there is no reason why the confession is so far as it relates to the two offences of kidnapping and extortion should not be taken into consideration as against this accused to lend assurance to the conclusion reached against him in so far as these offences are concerned based on circumstantial evidence.

       (3) As regards the case of the other appellant, both the courts have for good reasons found that he along with the appellant R, is guilty of criminal conspiracy to commit the offences charged. This would equally support the case against him under 8.34, Penal Code and there is no reason to reverse that finding. The concurrent finding that he is guilty of criminal conspiracy along with R for the commission of the offences under Ss. 364 and 386, Penal Code, is not open to challenge before the Sur erne Court. It is also clear that, on the same circumstantial evidence, both must be held equally guilty of the main offences themselves under S. 34, Penal Code. -Further, in view of the fact that the offences were actually committed in pursuance of the conspiracy or in pursuance of the common intention this appellant would be equally guilty with R of the two substantive offence under Ss. 364,386, Penal Code and would be liable to the same sentences (See S. 120-B, Penal Code taken with S. 109, Penal Code).

       In this case, even excluding the confession as substantive evidence there is enough against this appellant to find him guilty of the offence for criminal conspiracy to commit the offences of kidnapping and extraction along with the appellant R.

       (4) In a case like this where the two accused acted in concert by virtue of a common intention and of a criminal conspiracy, their entire activities cannot in the very nature of things be brought out in evidence. Obviously such daring offences would necessarily have called for active planning and co-operation of both these appellants together and probably of others. No distinction can therefore be made between them even as regards the sentence. - Article 136-Concurrent finding-Interference by Supreme Court.

       See under "Penal Code" post. - Sections 3, 5, 24--Murder-Corpus delicti not traceable - Proof of murder solely dependent on retracted confession-Improbability of manner of murder-Benefit of doubt-Penal Code, Sections 300, 302- Criminal Procedure Code, Sections 164, 367.