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PETITIONER: BABU SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 28/08/1962

BENCH:

ACT: Criminal   Trial-Confession-Voluntariness   of-Circumstances showing confession involuntary-Duty of Magistrate  recording confession Code of Criminal Procedure, 1898 (Act V of  1898, ss.164(3), 364(3).

HEADNOTE: The appellants were tried for murder and for concealing  the dead,  body.  The evidence against them was their  retracted confessions  and  the  recovery  of the  dead  body  at  the instance  of appellant Babu Lal from his Kotha.  The  courts below held that the confessions were duly recorded and  were voluntary  and relying upon them and on the evidence of  the recovery  of  the dead body convicted  both  the  appellants under  ss.  302 and 201 read with s.34, Indian  Penal  Code. The  appellants  contended  (i) that  the  confessions  were inadmissible as the provisions of s.364(3),Code of  Criminal Procedure, were not complied with in as much as the  confes- sions  were  actually  reordered  by  the  readers  of   the magistrate and the magistrate had not made any memorandum of the   examination  as  it  proceeded,  and  (ii)  that   the confessions  were not voluntary.  The  respondent  contended that the non-compliance with the provisions of s.364(3)  was cured by s.533 of the Code as the error had not injured  the accused  as  to  their  defence  on  merits  and  that   the confessions were voluntary: Held, that the confessions were not voluntary and could  not be  used against appellants.  The investigating officer  had kept the appellants in police custody for several days  even after  a  substantial part of the investigation was  over  ; there was no endorsement on the confession showing how  much time bad been given to the appellants before they made their confessions  ;  less than 24 hours had elapsed  between  the time when the appellants came out of police custody and  the time  when their confessions were recorded ; the  magistrate who recorded the confessions had taken part in assisting the investigation by attesting the recovery memos ; in recording the confessions the magistrate had adopted a somewhat casual attitude  by  disregarding the provisions  of  s,164(3)  and s.364(3) which provided valuable safegaurds to protect the 750 interests  of  innocent  persons.  Having  regard  to  these features,  the  confessions could not safely be  treated  as voluntary.   After exclusion of the confessions, the  charge of  murder  could not be sustained against  the  appellants. But the conviction of Babu Lal under s.201 Indian Penal Code could stand on the basis of the recovery of the dead body at his  instance  and of the evidence of the witnesses  of  the recovery.

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Nazir  Ahmed v. The King Emperor (1936) L. R. 63 1.  A.  372 referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 121 & 140/62. Appeals  by special leave from the judgment and order  dated March 6, 1962, of the Punjab High Court in Criminal  Appeals Nos. 63 and 213 of 1962 and Murder Reference No. 10 of 1962. O.   P. Rana, for the appellants. B.   K.  Khanna,  R.  H. Dhebar, R. N. Sachthey  and  P.  D. Menon, for the respondent. 1962.   August 28.  The Judgment of the Court was  delivered by GAJENDRAGADKAR., J.-These two Criminal Appeals Nos. 121  and 140  of 1962, arise out of a criminal case in which the  two appellants Babu Singh and Babu Lal were charged with  having committed  offences under s. 302 read with s. 34 and a.  201 of the Indian Penal Code.  The prosecution case against them was  that on or about December 22, 1960, the two  appellants murdered  Mahtab  Singh  in  furtherance  of  their   common intention  and there. by committed an offence under  s.  302 read  with s.34. The case further was that on or  about  the day  or the third week of January 1961, they did  cause  the evidence of the said murder to disappear by burying the dead body of Mehtab Singh and thereby committed an offence  under s. 201 of the Code. 751 The victim Mehtab Singh was the father of the appellant Babu Singh and Babu Lal is the friend of Babu Singh.  It  appears that  Mehtab Singh was living alone and that  the  relations between  him  and his son Babu Singh were not  cordial.   In fact, Mehtab Singh had complained to the police  authorities that  he apprehended danger from his son.   The  prosecution case  as  it  was laid before the trial court  was  that  on December  22, 1960, the two appellants entered the house  in which Mehtab Singh lived.  They caught hold of Mehtab  Singh while he was sleeping on a cot.  Babu Singh sat on his cheat and throttled him while his companion held the victim  down. The  dead body of the victim was then packed up in  a  gunny bag and concealed in a corner.  Babu Singh who was  familiar with  the house and its contents forced open a looked  trunk and removed a bag containing Rs. 1200/-.  With this bag  the culprits  left the house Babu Singh taking care to look  the house  before they left the scene of the offence.  With  the money  thus  obtained, Babu Singh  made  several  purchases. Some days later Babu Singh with the help of Babu Lal removed the dead of his father to the house of Babu Lal where it was put  underground  in  a  kotha.   That,  in  brief,  is  the prosecution  case against the appellants.  The discovery  of this  offence was made in a somewhat unusual  manner.   Babu Lal was arrested in connection with another theft case,  and whilst  he  was  being interrogated in  the  course  of  the investigation of that offence he made a disclosure statement and  showed  his willingness to make some  discoveries.   He then  took the police party to his house and as a result  of the statement made by him the kotha containing the dead body of Mehtab Singh was dug up.  On the same day, Babu Lal  made another disclosure statement as a result of which a pair  of those,  watch, radio, hundred rupees in currency  notes  and some other articles were found.  The prosecution alleges tha these goods had been purchased by Babu Singh 752

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with  the money he took away after murdering his father  and were kept in the house of Babu Lal. Babu  Singh who was arrested ’on ’January 22, 1961,  made  a similar  disclosure statement which led to the discovery  of shoes,  copper  trunk and purhase receipt  relating  to  the watch. After  these  discoveries  were made  in  pursuance  of  the statements  made by the appellants it is alleged  that  they expressed  a desire to make confessional statements, and  so they  were sent to the magistrate on February 6, 1961.   The learned magistrate directed that they should be handed  over to jail custody and accordingly they were taken to the jail. On  February  7, 1961, both the  appellants’  were  produced before  the  said  magistrate  and  their  confessions  were recorded.   In  addition  to  the  discovery  made  by   the investigating  officer. the prosecution relied on these  two confessions   in  support  of  their  charge   against   the appellants. It  also  appears that on January 15, 1961, a  telegram  was sent  addressed  to the appellant Babu  Singh  described  as Bhola  Ram  from Patiala.  This telegram  purported  to  say Mehtab  Singh seriously ill, send Babu Singh".  It  was  the prosecution  case that this telegram had  been  deliberately sent by Babu Lal and was addressed to Babu Singh in order to conceal  the commission of the principal offence of  murder. It  is  on  this material that  the  prosecution  relied  in support  of its case against both the appellants in  respect of the two charges already specified. The  learned trial judge has accepted this evidence and  had attached  no  importance  to the fact  that  the  appellants retracted  the  confessions made by them.   Accordingly,  he convicted  both the appellants under s. 302 read with s.  34 as well as. 201.  Babu Singh was sentenced to death for  the offence, 753 of  murder and to rigorous imprisonment for 7 years for  the offence   under   s.  201.   Babu  Lal  was   sentenced   to imprisonment for life for the offence under s. 302 read with s. 34 and 7 years for the offence under a. 201. The sentence of death imposed on Babu Singh was submitted to the Punjab High Court for confirmation.  The two  appellants also  preferred appeals challenging the order of  conviction and  sentence passed against them by the trial  court.   The High  Court heard the said matters together  and  concurred’ with the view taken by the trial court.  The High Court  has hold  that  the  confessions  were  duly  recorded  by   the magistrate, and that they were voluntary and true.  The High Court  took into account the fact that the said  confessions had  been  retracted  and so it  proceeded  to  examine  the question  as to whether they were corroborated.  In  dealing with  this  question, the High Court took into  account  the discoveries  made as a result of the statements made by  the two  appellants  and  it  held  that  the  said  discoveries corroborated the two confessions.  That is how the order  of conviction  and sentence imposed by the trial Court  on  the two appellants were confirmed.  It is against this  decision that  the  appellants have come to this Court by  their  two appeals. Mr. Rana, for the appellants, contends that the  confessions on which the prosecution relies have not been proved in this case.  In the alternative he contends that having regard  to the  circumstances under which and the manner in  which  the said  confessions  have been recorded, they  should  not  be treated  as  voluntary.  Unfortunately, this aspect  of  the matter has not, been considered by the High Court.  The High

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Court  has observed that the confessions were duly  recorded by  the magistrate and it has held that the appellants  were given  enough time to consider whether they should make  the confessions before the said confessions were 764 recorded.  In coming to the conclusion that the  confessions had  been  duly recorded by the magistrate  the  High  Court appears  to  have  relied  on the  statements  made  by  Mr. Agnihotri,  the magistrate, in his examination-in chief  and its  attention  does not appear to have been  drawn  to  the admissions  made  by  the  said  magistrate  in  his  cross- examination.   From the said admissions it is clear that  in recording  the said confessions the procedure prescribed  by s. 364 (3) of the Code has not been complied with, and  that naturally raises a very important issue in the present case. It is to be regretted that though this aspect of the  matter obviously  arises  in  view of the statements  made  by  the magistrate in his cross-examination, the High Court has  not addressed  itself  to  this point and has  not  noticed  the defect  in  the recording of the said  confessions  and  its effect before it decided to come to the conclusion that  the confessions  had been duly recorded and were  voluntary  and true. We  have  already stated that the appellants  were  produced before the magistrate on February 6, 1961    and  they  were directed to be sent to jail custody     on  the  evening  of February 6. On February 7,    1961,  their confessions  were recorded  during court hours.  When the magistrate gave  his evidence  to  prove these confessions, he  stated  that  the appellants  were  produced before him on February  7,  1961, that  he gave them one hour to consider whether they  should make  the  confessions and then he proceeded to  record  the confession  in  question verbatim.  "I  verbatim  recorded", says  the magistrate, "whatever the accused stated", and  he adds  ’,the statements were read over by me to  the  accused and  he  thumb-marked  it after admitting  the  same  to  be correct".   It  is this statement on which  the  High  Court appears  to  have acted in dealing with the question  as  to whether  the  confess. ions had been duly recorded  or  not. When the 755 magistrate was cross-examined in regard to the recording  of these  confessions, be admitted that the confessions had  in fact  not been recorded by himself The two  confessions  are Exhibits  P.  P.  and P. Q. and he  stated  that  they  were recorded  by  his  Ahmad Reader.  He was  asked  whether  he remembered which confession was recorded by which Reader and he added that he could not say who wrote Ex.  P. Q. or P. P. The  magistrate  explained  why he adopted  this  course  by saying that the statements were recorded by the Readar as  a verbatim  record  in urdu was required and he was  not  well conversant with Urdu writing.  Then he was asked whether  he made  a separate memorandum of the statement as required  by s.  364  (3)  and  he stated that he had  not  made  such  a memorandum.  He was further asked whether he remembered  the sequence in which the statements were recorded and he stated he  did not remember the sequence.  He was asked whether  he remembered where appellant Babu Singh was kept when Babu Lal made  his confession and where Babu Lal was kept  when  Babu Singh  made his confession.  He stated he did  not  remember where the other appellant was it would thus be seen that the confessions have not been recorded by the magistrate in  his own  hand for the reason that he was not familiar  with  the writing  in Urdu and that means that the requirements of  s. 364 (3) have not been complied with.

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There  is  another  aspect  of the  matter  which  would  be relevant  in  dealing with the question as  to  whether  the confessions  can  be safely taken to be  voluntary  in  this case.   It  appears  that the Magistrate  who  is  an  Haqua magistrate of Ambala was directed by the Additional District Magistrate to go to the police station at Ambala  Cantonment on  January 22, 1961, in connection with the recover of  the dead body.  Accordingly, he went to 756 the  police  station and he has attested the  signatures  of witnesses  of  the  disclosure document  which  led  to  the discovery  of  the  dead  body.  He  was  present  when  the statement  was  made by Babu Lal.  He was present  when  the dead  body  was recovered and he has attested  the  recovery memo.   He has also attested the other recovery  memo  which showed the discovery of other articles made in pursuance  of another  statement made by Babu Lal.  It is thus clear  that the  magistrate  who recorded the confessions  had  actively assisted  the investigation by attesting the recovery  memos which naturally play an important part in the present  case. This  aspect of the matter has also not been  considered  by the High Court. It  is  unfortunate that though it was brought  out  in  the cross-examination of the Magistrate that the confessions had not been recorded by the Magistrate himself, the prosecution did  not  examine  the officers of the  court  who  actually recorded the said confessions, nor did the trial court  call upon  the  prosecution  to  examine  those  witnesses.   The defence  examined  Harbans Singh, one of  the  officers  who recorded  the confession of Babu Lal.  This  witness  stated that  the  two appellants were brought to the court  of  the magistrate  and that they made their confession on  February 7,  1961.  lie stated that the confession of  Babu  Lai  was recorded  first  and it was he who wrote it down.   Then  he added  that  the  statement of Babu Singh  was  recorded  by Rajinder  Dat,  Ahmad of the court.  It would thus  be  seen that  Rajinder  Dat  Ahmad, who  recorded  the  confessional statement  of Babu Singh has not given evidence and  Harbans Singh has given evidence as a witness for the de. fence,  It is  very  much to be regretted that in a case of  this  kind where the appellants are charged  757 with  murder  the prosecution should not have  examined  the scribes  who  actually  recorded  the  confessions.   It  is conceded by the Magistrate that he was not familiar with the writing of Urdu and that indeed is his justification for not recording  the confessions himself.  In such a case, it  was of  utmost  importance that the scribes  should  have  given evidence  and an opportunity should have been given  to  the appellants  to  test by cross-examination,  the  prosecution claim  that their confessional statements had been duly  and properly  recorded.   That  is the safeguard  to  which  the appellants  were  undoubtedly  entitled.   That  is  another aspect  of  the  matter which has to be  borne  in  mind  in dealing with the points raised before us by Mr. Rana. If  the Magistrate under whose supervision  the  confessions were  recorded  has not complied with the provisions  of  s. 361(3)  of  the Code of Criminal Procedure, can it  be  said that the said confessions are not proved or that the  making of the confessions and their recording is vitiated so as  to make them inadmissible.  The decision of this question would naturally take us to three sections of the Code of  Criminal Procedure.   Section  164 of the Code confers power  on  the magistrate  specified in s. 164(1) to record statements  and confessions.   Section 164(2) provides safeguard to  protect

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the  interest of innocent persons.  It lays down  that  such statements, meaning the statements authorised to be recorded by  a.  164(1), ,%hall be recorded in such  of  the  manners hereinafter prescribed for recording evidence as is, in  the opinion of the magistrate, best fitted for the circumstances of  the case.  Then the section adds that  such  confessions shall  be recorded and signed in the manner provided  in  s. 364  and they shall then be forwarded to the  magistrate  by whom the case is to be inquired into or tried.  It would 758 thus  be seen that sub-s. (2) requires that the  confessions should be recorded in the manner prescribed by s. 364;  that is one safeguard provided by this section.  Sub-section  (3) then  proceeds to provide further safeguards.  It lays  down that  the magistrate shall, before recording any  such  con- fession,  explain  to the person making it that  be  is  not bound to make a confession and that if be does so it may  be used as evidence against him and no magistrate shall  record any  such  confession unless, upon  questioning  the  person making  it,  he  has  reason to believe  that  it  was  made voluntarily;  and  it provides that when the  confession  is recorded after following the procedure prescribed by it, the magistrate  shall  make  a memorandum at the  foot  of  such record to the following effect. When we turn to s. 361 we find that sub-s- (1) provides  for the  recording  of  the confession in  full  in  the  manner prescribed  therein and for explaining the contents  of  the same to the accused in a language which he understands,  and the  accused  shall be at liberty to explain or add  to  his answer.   Subsection (2) lays down that when the  ’whole  of the  confession is made conformable to what he  declares  is the truth, the record shall be signed by the accused and the magistrate,  and the magistrate shall certify under his  own hand  that  the examination was taken in  his  presence  and hearing and that the record contains a full and true account of  the statement made by the accused.  Sub-section  (1)  is important  for  our purpose.  It provides that in  cases  in which  the  examination of accused is not  recorded  by  the magistrate  or  judge  himself  he shall  be  bound  as  the examination  proceeds  to make a memorandum thereof  in  the language  of the court or in English, if he is  sufficiently acquainted  with  the latter language; and  such  memorandum shall be written and signed by the magistrate or judge  with his own band and annexed to the record.  It also  759 says  that if the magistrate is unable to make a  memorandum as  required he shall record the reason of  such  inability. It would thus be clear that if a confession is recorded. not by  the Magistrate himself as required by s. 364 (1)  it  is necessary  that the magistrate should make a  memorandum  as the examination proceeds and the memorandum should be signed by  him.   It’  is conceded that in the  present  case,  the confessions were not recorded as required by s. 364 (1) and, yet  the  safeguard prescribed by s. 364 (3)  has  not  been complied with.  Mr. Rans contends that the failure to comply with  the requirements of s. 364 (3) makes  the  confessions inadmissible. In   dealing  with  this  question  we  must  consider   the provisions of s. 533 of the Code.  It is on the provision of this  section that Mr. Khanna, for the  respondent,  relies. Section  533 (1) lays down that if any Court before which  a confession  recorded or purporting to be recorded  under  s. 164 or s. 1364 is tendered or has been received in  evidence finds that any of the provisions of either of such  sections have  not  been  complied by the  magistrate  recording  the

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statement, it shall take evidence that such person duly made the  statement recorded ; and it adds  that  notwithstanding anything contained in s. 91 of the Indian Evidence Act, 1872 such  statement  shall  be admitted if  the  error  has  not injured  the accused as to his defence on the  merits.   Mr. Khanna  contends  that  the magistrate  has  in  fact  given evidence  in  the  trial  court  and  the  evidence  of  the magistrate shows that the statement has been duly recorded ; and  he  argues that unless it is shown that  prejudice  has been caused to the accused the irregularity committed by the magistrate in not complying with s. 364 (3) will not vitiate the  confessions nor will it make them inadmissible.   There is some force in this contention, 760 In  this connection it would be necessary to consider s.  80 of  the Indian Evidence Act as well.  This section  provides that  whenever  any document is produced before  any  Court, purporting to be a record or memorandum of the evidence,  or of  any part of the evidence, given by a witness in a  judi- cial  proceeding or before any officer authorised by law  to take such Evidence or to be a statement or confession by any prisoner  or accused person, taken in accordance  with  law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, ’the Court shall presume that the  document  is genuine ; that any statements  as  to  the circumstance under which it was taken, purporting to be made by the person signing it, are true, and that such  evidence, statement  or  confession was duly taken.  Mr.  Khanna  also relies  on this section in support of his argument that  the confessions  must be taken to be proved in the light of  the evidence  given  by  the  magistrate,  and  his  certificate appended to the confessions.  It is open to argument whether s. 80 of the Evidence Act would be available in a case where the  recording of the confessions is irregular in the  sense that  s.  364 (3) has not been complied with.  But  for  the purpose of the present appeals we are prepared to assume  in favour  of  the prosecution that the confessions  have  been proved  and may, therefore, be considered on the  merits  if they  are shown to be voluntary and that is the  alternative argument which has been urged before used Mr. Rana. Now,  in  dealing  with  the question  as  to  whether  the- confessions  are voluntary or not, we have to bear  in  mind some  broad  features of this, case.   The  first  important circumstance  on which Mr. Rana relies is that  though  both the appellants made discovery statements on January 22,  and though it appears that on that date the substantial part  of the investigation was really over, the investigatin  761 officer  kept  both  appellants  in  police  custody   until February  6.  It is true that an  investigating  officer  is entitled  to keep an accused person in his custody if it  is essential to do so for the purpose of investigation  subject to  the  conditions  prescribed  by  the  Code  of  Criminal Procedure  ;  but where it appears  that  the  investigating officer  has  kept an accused person in the  police  custody even after a substantial part of the investigation is  over, the  detention of the accused person in police custody is  a matter  which  has to be borne in mind  in  considering  the question as to whether the confessions substantially made by the  accused  persons  are voluntary or not.   That  is  one important fact in favour of the appellants. The  other  fact  which is equally  important  is  that  the appellants were produced before ’the magistrate on  February 6  in  the  evening  and they  were  sent  to  jail  custody Thereafter they were brought back to the magistrate’s  court

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on  February 7 and the magistrate proceeded to record  their confessions.  In his evidence the magistrate has stated that he  gave them one hour to consider whether  the  confessions should  be  made or not.  Unfortunately, the record  of  the confessional  statements  does not make any  endorsement  to that  effect.  Usually, when a confession is recorded  under s. 364 the magistrate makes an endorsement showing when  the accused was arrested, when he was brought before him and how much time he gave him to consider whether he should make any confession   or  not.   Amongst  the   many   irregularities committed in the recording of this confession in this ea-se, this one also is noticed that there is no endorsment showing how  much time was given to the appellants before they  made their confessions.  The confessions were made on February .7 and  the  magistrate gave evidence in December.  It  is  not easy to 762 appreciate how the magistrate could have remembered that  he gave  the  appellants  one hours  time  to  consider.   This comment  falls  to be made because when the  memory  of  the magistrate  was tested in other particulars he  pleaded  his inability  to make any definite answer.  Take  for  instance the question as to who recorded these concessions.  That was a  matter of some importance and yet the  magistrate  stated that he did not remember which Reader in his court  recorded which  confession.   The magistrate was also asked  in  what sequence the two appellants came and made their confessions. That again is a matter of some importance and the magistrate said  that  he  did  not  remember  in  what  sequence   the confessions  were made.  The magistrate was asked where  the other accused was when one was making the confession and  he stated  he did not remember.  It is in the light  ’of  these admissions  made by the magistrate in respect of  the  other impartent  details that we have to consider whether  in  the absence  of any contemporaneous evidence on the  record  his statement that one hour was given to the appellants could be accepted without any reservation.  Besides even if we assume that one hour was given to the appellants that does not make up  even  24  hour  after the accused  came  out  of  police custody.   This  Court has always emphasised the  fact  that before  confessions are recorded the magistrate who  records the  confessions  should satisfy himself  that  the  accused person’s  mind has been freed from fear or  other  complexes developed  during  police  custody and  generally  24  hours atleast  should be allowed to lapse before a  confession  is recorded.  There can of course be no inflexible rule in  the matter.  In each case the magistrate had to decide how  much time should be given to the accused before his confession is recorded.   In the present case, having regard to  the  fact that the appellants were 763 kept  in  police custody for a long period it seems  ’to  us that the time given to them to consider whether they  should make  the  confessions  or not is  wholly  insufficient  and unsatisfactory.   That is another fact on which Mr. Rana  is entitled to rely. Then we have the third unusual feature in the case and  that is  that  the magistrate who recorded  the  confessions  has taken  part  in  assisting the  invastigation  by  attesting recovery memos in two cases.  Mr. Khanna contends that there is  no  legal  prohibition  against  a  magistrate  who  has attested  the  recovery memos from recording  a  confession. That  technically may be true, but the point we  are  consi- dering  is not a matter of technicality; it is a  matter  of propriety.  The magistrate who recorded the confessions  has

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stated  that when the appellants were brought before him  he told  them  that he was independent of the police  and  that they  were free either to confess or not to  confess.   When the  magistrate has taken active part in attesting  recovery memos,  to the unsophisticated appellants the claim made  by him that he was independent of the police may have struck as rather subtle.  It would be recalled in this connection that the  Privy Counsel in the case of Nazir Ahmed v.  Thee  King Emperor(J)  has  stated that "in their  Lordship’s  view  it would be particularly unfortunate if magistrates were  asked at  all generally to act rather as police officers  than  as Judicial  persons".  We are therefore inclined to  take  the view that it is desirable that magistrates who take part  in attesting  recovery memos should not record  confessions  by person  accused  of the offence being investigated.   It  is conceivable  that  the investigating  department  seeks  the assistance of the magistrates in the matter of investigation by requesting them to attest the recovery memos in order  to give  assurance and authenticity to the investigation.   But if that is done care should be taken to see that 764 for  recording concessions the accused persons are  sent  to some  other  magistrate.  That is another factor  which  has weighed in our minds in dealing with the voluntary character of the confessions in the present appeals. We have also been disturbed to notice that in recording  the confessions  the  magistrate has adopted a  somewhat  casual attitude.    It  is  unnecessary  to  emphasise   that   the safeguards  provided  by  s.  164 (3) and  s.  364  (3)  are valuable  safeguards  intended to protect  the  interest  of innocent  persons.  The recording of confession is a  solemn and   serious  act.  and  so  any  magistrate  who   records confessions  must see to it that a tone of  casualness  does not enter in the transaction.  Having regard to the evidence given  by  the  magistrate  in  the  present  case  we   are constrained  to  observe  that  when  got  the   confessions recorded  in the present case he was not fully conscious  of the  solemnity  and the seriousness of what  he  was  doing. That  is  another  factor which has weighed  in  our  minds. Having  regard  to  these features of the case  we  are  not prepared to uphold the finding of of the High Curt that  the confessions made by the appellants can be safely treated  to be  voluntary in the present case.  If the confessions  are, therefore,  excluded from consideration it is impossible  to sustain  the  charge  of murder against either  of  the  two appellants.   In  a  case where the  charge  of  murder  was founded  almost  exclusively  on  the  confessions  it   was necessary that the High Court’ should have considered  these relevant  factors  more carefully before  it  confirmed  the conviction  of the appellants for the offence’ under s.  302 and confirmed the sentence of death imposed on’ Babu  Singh. In our opinion. if the concessions are left out of consider- ation, the charge of murder cannot be sustained.  The result is  the conviction of both the. appellants for  the  offence under s.302 read with s.34 is set  765 aside and consequently the sentence imposed on them for that offence is also set aside. That takes us to the question whether the alternative charge under  s.  201  can be held proved.   This  charge  is  held established  against Babu Lal substantially because  of  the recovery  of the dead body in his house.  That  recovery  is evidenced  by a memo made in that behalf, and the  witnesses who were present at the time of, the recovery gave  evidence in  support  of the memo.  The High Court has held,  and  we

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think  rightly, that the circumstances under which the  dead body  of Mehtab Singh was recovered, the time at  which  was recovered  and the statement made by Babu Lal prior  to  the said recovery, all indicate that Babu Lal has committed  the offence  under s.201 I. P. C. The same cannot,  however,  be said about the conclusion of the High Court in respondent of Babu  Singh.  In dealing with the charge against Babu  Singh under s. 201, the High Court was no doubt influenced by  its finding  that Babu Lal was quilty under s. 302/34.  If  that finding  had been affirmed by us, there would have  been  no difficulty  in con., firming Babu Lal’s conviction under  s. 201,  because that finding was based on the two  confessions made  by  Babu  Lal  and Babu  Singh.   If  we  discord  the confessions,  then there is no evidence on which Babu  Singh can  be  convicted under s. 201.  The  recovery  of  certain articles  purchased  by him with the money alleged  to  have been  stolen by him from the house of his father cannot,  in law,  justify the inference that he assisted the  commission of  the offence under s. 201.  Therefore, the conviction  of Babu Singh under s.201 cannot be sustained. It  may be that Babu Singh and Babu Lal both  committed  the offence under s.201 and it is not unlikely that both of them were  concerned with the main offence of murder.  But  in  a criminal 766 trial,  the  presumption  of innocence  is  a  principle  of cardinal importance and so, the guilt of the accused must in every   case   be   proved  beyond   a   reasonable   doubt. Probabilities however strong and suspicion however grave can never take the place of proof.  That is why we are satisfied that the appeal preferred by Babu Singh must be allowed  and be  must be acquitted of both the offences charged under  a. 302/34  and s. 201 and ordered to set at liberty.   Criminal Appeal  No.  140  of  1962  preferred  by  Babu  Lal  partly succeeds.   His conviction and sentence under a.’ 302134  is set  aside, but his conviction under section 201 as well  as the sentence of seven years imposed on him for that  offence are confirmed, Cr.  A. 121 of 1962 allowed. Cr.  A. 140 of 1962 partly allowed. 767