The admissibility of a confession under Section 164 and Section 364, Criminal Procedure Code is not necessarily fatal if the statement was made and can be proven, especially when there is overwhelming evidence supporting the conviction.

1. The appellant Shamla, a resident of Mungeli, Bilaspur district, has been convicted of the murder of a small crippled boy of 5 years of age and has been sentenced to death. The child was murdered on 24th November 1939, the accused disappeared from Mungeli the same day and was found working in a rice mill in Raigarh State under the assumed name of Itwari and was arrested on 19th December. The child was a cripple, having deformed feet, and the child's mother Mt. Bija deposes that when she went every day to work in the fields she sometimes took the child with her and sometimes left him at home. On the morning in question she had considered taking the child to the fields, but Shamla, who lives close by and who was fond of the child, picked it up and petted it, and so she left the child with him. On her return at midday the child was not to be found, and Shamla on being questioned said that he had left it playing in the lane. Mt. Dasmat, a vegetable seller, deposes that about 9-30 that morning on her way to the market she saw the accused and the child together and that her attention was attracted by the fact that the accused had picked up the child which was crying and she told him to put the child down. As the child was not found by evening, a report was made to the police, and as this happened in Mungeli itself, the Sub-Inspector arrived very soon. As Shamla was the last person to be seen with the child, it was suggested that he should accompany the police to the police station, which he did, but when the party returned, there is evidence that Shamla ran away and disappeared from the village. Meanwhile enquiries has elicited the fact that Shamla had pawned a bracelet with one Sukaluram (P. W. 8) at 10 or 11 o'clock in the morning. The bracelet was seized that day and also Sukaluram's books (vide Ex. P-4 and P-6) which recorded the entry that he had bought the bracelet that day from Shamla. This bracelet has been identified as belonging to the child by its parents and also by Jugul Sonar (p. W. 15) who made it.

2. The accused admits that the bracelet produced in Court is one which belonged to the deceased and he admits pawning a bracelet with Sukaluram, but he denied that the bracelet in Court is the one which he pawned. Beyond this no explanation is afforded. As it was night time, a watch was kept round the house of Shamla in which his old mother alone lived. The following morning another son of hers who lived in another house was told to question her as to what she knew (she had been away all the previous day), and she admitted that the dead body was in the house. The police then entered and found the body of the child crammed between the grain bin and the wall with minor injuries to the face and head. Death has been established by the medical evidence as being due to asphyxia, and this is not disputed. According to the police the accused when he ran away first went to mauza Baijana, and on being questioned what he was doing there by Hatteram (p. w. 6) and Mahengu (p. W. 7) the latter of whom is a distant relative of his, stated that he had committed a murder and run away and had removed a kara from the deceased child. The learned Additional Sessions Judge has preferred not to accept their evidence as he considered it unlikely that the man would first make his confession to Hatteram who was a stranger and only afterwards to his relation Mahengu, although he does consider it probable that these two persons harboured him for a day and a night and had made no attempt to inform the police when the police came to enquire about him. One would have thought that if the harbouring and the denial to the police is accepted, it would follow that the witnesses did have knowledge that he was a murderer.

3. The learned counsel for the appellant is unable to offer any explanation as to Shamla's sudden disappearance from the village and his working in a rice mill at Raigarh under an assumed name, and he selects two points in the prosecut