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PETITIONER: CHINNA GOWDA

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT: 27/04/1962

BENCH:

ACT: Criminal    Trial-Approver-Corroboration    of-    Retracted confessions of co-accused-When can be used as corroboration.

HEADNOTE: The  appellants were convicted of murder.   The  substantial evidence on which the conviction rested was the evidence  of an approver and the confessions of two coaccused. Held,  that  the conviction of the appellants could  not  be sustained.   Though there is no bar for a  conviction  being based upon the evidence of an approver alone, as a matter of prudence the courts always require that such evidence should be  corroborated  in  material particulars.   The  need  for corroboration is all the greater in a case like the  present where the approver, apart,from being of bad character, could not  be said to be a man of truth since he had resiled  from his  confession before the Committing Court.  The  retracted confessions of the co-accused in the present case could  not be  safely relied upon for corroborating the approver.   The confession of an accomplice which cannot be tested by cross- examination  is a very weak type of evidence.  Even if  some weight could be attached to confessions when made by two  or more  accomplices independently of each other implicating  a particular accused the confessions in the present case  were not  such  as could be taken as good  corroboration  of  the approver. Bhuboni  Sahu  v.  The King [1949] L.R. 76  I.  A.  147  and Kashmira Singh v. State of Madhya Pradesh [1952] S.C.R. 526, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos, 172 & 173 of 1961. Appeals  by special leave from the judgment an, order  dated July  7, 1961 of the Mysore-High Court in  Criminal  Appeals Nos.  352 and 355 of 1959 and Criminal Referred Case No.  25 of 1959. 518 N.   H. Hingorani, for the appellants. B.   R. Iyengar and R. H. Dhebar, for the respondents. 1962.  April 27.  The Judgment of the Court was delivered by MUDHOLKAR,  J.-The appellant, China Gowda, was  tried  along with  six  other  persons for committing the  murder  of  an entire  family  consisting  of eight persons  on  the  night intervening  the 12th and 13th February, 1958, in  Handigodu hamlet of the village Viavalli.  The learned Sessions  Judge convicted every one of them under a. 302, Indian Penal Code,

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and sentenced each of them to death.  In appeal, the accused No.  2, Sbivappa Naika and accused No. 7, Gunde  Gowda  were acquitted.   The  appeals of the remaining  accused  persons were dismissed.  The High Court, however, confirmed the con- viction and sentences only of the appellant Chinna Gowda and of  Rame Gowda, appellant in Criminal Appeals Nos.  172  and 173 of 1961 and while affirming the conviction of the  other three  accused commuted the death sentences  passed  against them  to imprisonment for life.  The. appellants in the  two appeals were granted special leave by this Court under  Art. 136 of the Constitution and that is how the appeals are  now before us. The facts as alleged by the prosecution are briefly these: The deceased, Mariappa Gowda took up residence in  Handigodu about  eight  or ten years prior to the murder.  He  was  an industrious   and  thrifty  person  and  soon  became   very prosperous.   This  aroused  the envy and  jealousy  of  the appellant,  Chinna Gowda.  In the course of years,  numerous disputes  over  the  boundaries  of  fields,  trespasses  on fields, the flow of water and so on arose between the two of them.  For some time prior to the                             519 murders, the relationship between Mariappa Gowda  (deceased) and  the appellant as well as Rame Gowda, the  appellant  in the other appeal, became very strained.  It may be mentioned that Rame Gowds was actually living with Mariappa Gowda  for some  time and Mariappa Gowda leased out some lands to  him. Shortly thereafter, both of them fell out and Mariappa Gowda was  anxious  to evict Rame Gowda, from  the  leased  lands. Mariappa  Gowda was, therefore, reluctant to issue  receipts for  rent  paid  by Rame Gowda, to him.   This  annoyed  the latter.    Eventually,  however,  on  the  intervention   of Chandiah Hegde, P. W. 67, Mariappa Gowda passed a receipt in favour of Rame Gowda.  To his surprise, Rame Gowda, however, found  that  the  receipt contained false  recitals  to  the effect that he had surrendered the leased land to  Mariyappa Gowda.  He, therefore, complained about this to Chandiah who promised  to  settle  the matter.  In  the  meanwhile,  Rame Gowda’s  anger increased.  One day, he actually stopped  the bullock cart of Mariappa and challenged him to try and evict him   from  the.  leased  lands.   Sometime  thereafter   he complained  to one Singappagowda that Mariappa  had  cheated him  and said "you will see what I will do to him in  a  few days."  According to the prosecution, the remaining  accused were  the friends of the appellant, Chinna Gowda but  it  is not  suggested that they had any personal grievance  against Mariappa Gowda. It is common ground that Mariappa’s house is 3ituated  about a  furlong and a half of the house of Chinn& Gowda and  that no  other  house than Chinna Gowda’s  is  nearer  Mariappa’s house.  Mariappa lived there with his wife Bellamma and  six children.  Since he was living in an isolated place, he  bad kept  a dog.  He also used to keep a light  burning  outside his  house.   Further, he had a gun which was  usually  kept loaded in the house.  Few days 520 before  the incident, the dog had died but the cause of  the death of the dog is not known. Between  6.30  and  7.00 a.m. on  the  morning  of  February 13,1958, P.W. 12 Narayan of Handigodu who was employed as  a labourer by Mariappa Gowda, went, as usual, to his  master’s house.   He was horrified to find that all the doors of  the house  were open and the inmates of the house were lying  on their  beds in pools of blood, having been done to death  by someone.   Thereupon  he went to the house of  one  Harithal

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Chandegowda, P.W. 31, and informed him of what he had  seen. Both of them along with another man proceeded to the village Handigodu.   Eventually,  the first information  was  lodged with   the  police  who  commenced   investigation.    After investigation,  the  seven  accused  persons  and  P.W.  40, Venkappa  Naika, who later turned an approver in  the  case, were  arrested in connection with the murders.   During  the course  of  the  investigation,  P.W.  40,  Venkappa  Naika, accused  No. 3 Manjappa Gowda, and accused No.  4,  Manjappa Naika,  made  confessions.  Venkappa Naika was  tendered,  a conditional  pardon  on his agreeing to’  give  evidence  on behalf of the prosecution.  At the committal stage, all  the three persons retracted their confessions.  However, all the alleged  participants in the crime, except  Venkappa  Naika, were  sent  up for trial and were tried  by  the  Additional Sessions Judge, Chikmagalur. At   that  trial  Venkappa  Naika  gave  evidence  for   the prosecution  on the lines of his confession, saying that  he had  retracted the concessions at the commital stage as  the appellant,  Chinna  Gowda had threatened to kill  him.   The learned  Additional  Sessions Judge, relying mainly  on  the evidence  of the appover, as corroborated by  the  retracted confessions  of  two of the amused  persons,  convicted  sad sentenced all the accused persons. as already  521 stated.   In addition to the evidence of the  approver,  the prosecution  has relied upon the evidence of two  witnesses, P.W. 16, Dugamma, a neigbbour of Chinna Gowda and.  P.W.  59 Mariappa,  son  of Rame Gowda, an  agricultural  servant  of Chinna  Gowda.   The learned Additional Sessions  Judge,  as well as the High Court, believed their evidence and regarded it  as affording some corroboration to the evidence  of  the approver.  The prosecution further relied upon the fact that just prior to the date of the murders, Chinn& Gowda, who was heavily pressed for money, had arranged to obtain a loan  of Rs. 600/- for one T. Shivaiah alias T. Shivaswamy, P.W.  75, who  had agreed to advance it to him on February  13,  1958. Inspite  of T. Shivaiah agreeing to advance the loan,  China Gowda  did  not go to his house on the appointed  day.   The suggestion  is  that after committing the murders,  all  the accused persons looted the cash and jewellery found in  that house and the cash was retained by China Gowda with himself, Fi.  nally,  the  courts below have  relied  upon  the  cir- cumstance  that  the  accused  person,  in  particular   the appellants in the two appeals before us, did not, like other innocent villagers, go to make enquiry about the incident or go to the hospital where the dead bodies were taken. The  evidence  of  P.W. 16, Duggamma and that  of  P.W.  59, Mariayappa does not afford corroboration to the evidence  of the approver on material particulars and in fact two of  the statements made by the latter contradict the evidence of the approver on some important points.  The substantial material on which the case rests is thus the evidence of the approver and the retracted confessions of two of the accused persons. The  question,  therefore,  is  whether  conviction  of  the appellants could be sustained on the basis of this material. There is no doubt that s, 133 of the 522 Evidence  Act  does  not debar the  court  from  basing  the conviction  of  an  accused person on the  evidence  of  the approver alone but as has been observed in a large number of cases,  including  the  decision of  the  Privy  Council  in Bhuboni  Sahu  v. The King (1) the Courts, as  a  matter  of prudence,  always require that the evidence of the  approver should  be corroborated in material particulars.  This  rule

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has  been  founded on s. 114(b) of the  Evidence  Act  which enables  the  Court  to presume that an  accomplice  is  not worthy  of  credit  unless he is  corroborated  in  material particulars,  The need for such corroboration would  be  all the  more greater where, as here, the approver,  apart  from being   a  person  of  bad  character  by  reason   of   his participation in a heinous crime, cannot be said to be a man of truth since he had refiled from his confession before the committing  magistrate.   This circumstance  emphasizes,  if emphasis was necessary, the need for requiring corroboration to his evidence in material particulars. The  substance  of the evidence of  the  approver,  Venkappa Naika,  is  this.   On the day prior to  the  incident.  the appellant  Chinna Gowda met him at Thyavananda  Angadi  when both of them were returning to their village from  Sringeri. Venkappa  Naika,  it  may be  mentioned,  is  a  bootlegger. Chinna Gowda asked him whether he had any arrack’  available and upon Venkappa Naika answering in the affirmative, Chinna Gowda gave him Rs. 5/- and asked him to take two bottles  of arrack to his house the next evening as there was a party at his house.  Accordingly’, on the next day, i.e., on the  day of  the incident, Venkappa Naika went there in  the  evening carrying  with  him two bottles of arrack.  He did  not  see Chinna Gowda but saw Manjappa Gowda, accused No. 3, grooming two bullocks in front of the house.  He, therefore, (1)  (1949) L.R. 76 I.A. 147.                             523 enquired  of him where Chinna Gowda was.  On being  told  by Manjappa  Gowda to go to the area garden where Chinna  Gowda would  shortly  be  going, Venkappa Naika  went  there.   He noticed  three of the accused persons, Shivappa Naika,  Rame Gowda  (appellant  in  the other  appeal)  and  Gunde  Gowda sitting  under a jack fruit tree.  A little  later  Manjappa Naika  who  is accused No. 4 came there   and  was  followed shortly  after  by  Chinna Gowda and Ramappa  Naika  who  is accused  No. 5 in the case and Manijappa Gowda.  The  latter brought ’rotti’ and chicken and curry.  Thereafter, all  the persons  present were served with arrack.  Then they  had  a meal consisting of chicken curry and rotti which was  served by  the  Manjappa Gowda.  After finishing their  meals  they again had a round of arrack.  While they were having arrack, Chinna Gowda said.  "Handi godu Mariappa Gowda is  harassing me.  We must go and finish him today".  Thereupon,  Shivappa Naika  said,  "’work  must  be  done  carefully.    Whatever punishment  may  be  meted out., you should  not  open  your mouth.   I am there to see to the rest." After  that,  China Gowda  took  Shivappa to his house and left him,  there  and returned alone to the garden.  By that time it was midnight. All of them then got up and at the instance of Chinna  Gowda went  to  the house of the deceased Mariappa  Gowda.   China Gowda,  Manjappa Gowda, Manjappa Naika, Rame Gowda  and  the approver,  Venkappa Naika, each had a chopper with him.   On the way, Chinna Gowda observed "We should not leave even  a’ worm.  You must do the work carefully." On reaching the house of Mariappa Gowda they noticed a  bed- lamp  burning  on the Jagali, which was put  out  by  Chinna Gowda.  He, as well as Rame Gowda, had torches with them and they, flashed them now and again.  Then Rame Gowda struck on the neck of Mariappa Gowda who was, 524 sleeping  on  the  jagali, with-the  chopper  in  his  hand. Chinna  Gowda dealt a similar blow on the neck  of  Bellamma who  was sleeping close to Mariappa.  The approver,  himself struck Bellamma on her head.  Rame Gowda next struck a  male child  on his neck. with his chopper.  It appears  that  the

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others  were  just  looking on.   Chinna  Gowda  looking  at Manjappa  Naika  said,  "Why are you  looking  on,  fool  ?" Whereupon  that  person  struck on the neck  of  Gunda,  the eldest son of Mariappa Gowda with his chopper.   Thereafter, Cbinna Gowda, Manjappa Gowda and Rame Gowda went inside  the house  and murdered the four children of Mariappa Gowda  who were  sleeping there.  Then Chinna Gowda re-lighted the  bed lamp which had been blown out earlier, took out the bunch of keys  from the waist of Mariappa Gowda, opened the  lock  of one of the rooms of the house and took out from it a  trunk. He  opened  the lock of the trunk.  This trunk  contained  a gold chain, a pair of bugudis, three gold rings and one gold flower.   It also contained two bundles of. currency  notes. Chinna Gowda took possession of all these articles.  In  the meanwhile  Rame  Gowda removed the gold ear-rings  from  the ears of Bellamma as well as removed her ’manisara’ which she was  wearing  on  her neck and handed them  over  to  Chinna Gowda.  Chinna Gowda wrapped up the jewellery in a towel and handed  it  over to Ramappa Naika but he kept  the  currency notes  with himself Thereafter the party left the  house  of Mariappa.  They went to a nala nearby and washed their hands as well as the choppers.  On their way back to the house  of Chinna  Gowda; the latter said, "Let the commotion be  over. Thereafter  let us distribute the gold and the, money.   Let no  one demand it now.  There is Shivappa Naika.  We  ,shall distribute  it."  Thereupon Manjappa Naika, Rame  Gowda  and Gunde  Gowda  went to their respective houses  while  Chinna Gowda, Manjappa                             525 Gowda and Ramappa Naika, went to the house of Chinna  Gowda. The  approver  went along with. them.   After  reaching  the house,  Chinna Gowda took the jewellery from  Ramappa  Naika which  he  kept  inside the house.  Chinna  Gowda  gave  the approver  a ’kambal’ and asked him to sleep on the jagali.   He, therefore, slept there along with Majappa    Gowda       and Manjappa  Naika  while  Chinna morning,  the  approver  left Chinna Godwa’s house and went to his own house. What is first to be considered is the evidence of P. W.  16, Duggamma and that of P. W. 59, Maryappa, sun of Ramae Gowda. We   have  already  indicated  that  it  does   not   afford corroboration  to the evidence of the approver.  The  former stated  in his evidence that just when she was going to  bed she heard Ramappa Naika saying, "Torch light fell." At  that time, Chinna Gowda and.Manjappa Gowda were with him and  all the three of them were on the jagali.  There is no reference whatsoever to the flashing of the torch in the- evidence  of the  approver.   All  that could be said is  that  there  is perhaps  a  partial corroboration to the  statement  of  the approver  that while some of the participants in  the  crime were  sitting  in  the arena garden early  in  the  evening, Chinn& Gowda and Rammappa Naika came there together and were followed  shortly after by Manjappa Gowda.  But much  impor- tance cannot be attached to a partial corroboration.   Later in her evidence, Daggamma stated that she woke up during the night  and noticed torch light being flashed on her  jagali. Just then Chinna Gowda came near the jagali.  Thereupon  she asked  ,,who is it".  On that, Chinna Gowda said: ",No  one. Have  you not got sleep.  Sleep on." Now, according  to  the approver, he was accompanying Chinna Gowda at that time, but there  is  no reference whatsoever to the  incident  in  his evidence, 526 In the circumstances, it cannot afford any corroboration  to any part of the evidence of the approver. Now,  coming to the evidence of P. W. 59, Maryappa,  son  of

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Rame Gowda, who was a servant of Chinna Gowda, what he  says is  that  on the evening of the date of  the  incident,  the approver,  Venkappa  Naika came to his  master’s  house  and asked  Manjappa Gowda where the appellant Chinna Gowda  was. Thereupon Manjappa Gowda told him that Chinna Gowda was  not at  home,  and perhaps had gone  somewhere.   After  hearing this,  Venkappa Naika went towards the garden at about  9.00 or 9.30 p.m. While the witness was sitting on his bed on the jagali  of  Chinna’Gowda’s house, Chinna Gowda  and  Ramappa Naika  came  to the house and had their  meals.   Thereafter Chinna  Gowda, Manjappa Gowda and Ramappa Naika sat  talking on  the  jagali.   When they were chatting he  saw  a  torch lighting flashed on a tree near the house.  Thereafter,  all these three persons got up saying that they should go to the garden  and  accordingly went there.  Five. or  ton  Minutes later, they came back to the house.  Chinna Gowda warned the witness not to mention to any one about the flashing of  the torch.   The witness then went to sleep and, got up at  6.00 or  6.30 a. m. He then found Chinna Gowda and Ramappa  Naika still in bed on the jagali.        Instead   of  affording  any  corroboration  to   the evidence  of  the  approver, the evidence  of  this  witness contradicts  the approver on several points.  Now  according to  the  approver, he went to the garden of  being  told  by Manjappa  Gowda to do so, but that is not what  the  witness says.   According to the witness, Chinna Gowda  and  Ramappa Naika had their food in the house and thereafter, after  the torch light was flashed, they went inside the areca  garden. According to the approver, all the participants in the crime has barrack as well as                             527 chicken  curry  and "rotti" in the garden,  that  the  whole party  got  up at mid-night, Chinna Gowda  returned  to  the house  with  Shivappa, then came back to  the  garden  after leaving him and then they all went towards the house of  the deceased,  Mariappa  Gowda.  According to the  witness,  not only  Chinna Gowda and Ramappa Naika had their meals in  the house  but  that  they returned to the jagali  five  or  ten minutes  after they went to the garden and it was then  9.30 p.m.  This in wholly inconsistent with an important part  of the  story  as narrated by the  approver.   Finally,  while, according  to  the approver, Chinna Gowda slept  inside  the house  on  the night in question, the witness says  that  he slept  on the jagali.  Considering, therefore, the  evidence of  the  witness as a whole, it must be said that  far  from affording  corroboration to the evidence of the approver  on material  particulars,  it contradicts the evidence  of  the approver at least with respect to one fact which is material and that is the entire party leaving the garden at  midnight for  the  house of Mariappa Gowda.  If the evidence  of  the witness is true it would seem that Chinna Gowda, instead  of going  to  the house of Mariappa Gowda,  along  with  others returned to his house and slept on his jagali.  For, he does not say that after coming back from the garden-at 9.30 p.m., Chinna Gowda again went there.  No doubt, the approver  said that  before  going to the house of Mariappa,  Chinna  Gowda went   with  Shivappa  to  his  house  and   then   returned immediately.   But according to him it was at  midnight  and not  at 9.30 p.m. Thus, far from corroborating the  evidence of  the  approver  in so far as  the  participation  of  the appellant  Chinna Gowda is concerned, the evidence  of  this witness tends to contradict it. Then there is the corroboration, said to be afforded by  the retracted  concessions  of the accused  Manjappa  Gowda  and Manjappa  Naika.   We  have  not  been  taken  through   the

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confessions of these 528 two  persons but we will assume that these two persons  tell the  same story as the approver but the question is  whether the  confessions  can  safely be relied  upon  as  affording corroboration to the evidence of the approver. Since  the  appellants and the Confessing  accused  persons, Manjappa Gowda and Manjappa Naika were tried jointly for the same  series  of  offences, their confessions  can  be  used against the appellants under s. 30 of the Evidence Act.  But a  confession cannot be regarded as a piece of  satisfactory evidence  because  it  is not made in the  presence  of  the person  or  persons whom it  incriminates  and  consequently cannot  be  tested  by  cross-examination.   A   confession, therefore,  is  a  much weaker type  of  evidence  than  the evidence  of  the approver which is not subject to  such  an infirmity.   No  doubt,  by virtue of s.  30  they  can,  as pointed out in Bhuboni gahu’s case ( cit. sup.) can be taken into  consideration  by the ’Court and  thereby  treated  as evidence  upon which the court may act, but s. 30  does  not say that the confession amounts to proof.  In Kashmira Singh v.  State of Madhya Pradesh (1) this Court has  approved  of the decision in Bhuboni Sahu’s case and observed :               "But  cases may arise where the judge  is  not               prepared  to act on the other evidence  as  it               stands  even though, if believed, it would  be               sufficient  to sustain a conviction.  In  such               an  event  the  judge  may  call  in  aid  the               confession and use it to lend assurance to the               other  evidence  and thus fortify  himself  in               believing   what  without  the  aid   of   the               confession   he  would  not  be  prepared   to               accept." After  making these observations this Court has pointed  out the  danger  of  using the testimony of  one  accomplice  to corroborate another because (1)  [1952] S. C. R. 526, 530.                      529 for  one thing evidence consisting of the confession of  the accomplice cannot be tested by cross. examination. Relying upon illustration (b) to a. 114 of the Evidence  Act it  was contended on behalf of the Crown in  Bhuboni  Sahu’s case  (1)  that where several participants  in  the  alleged crime  have  in  their  separate  confession  implicated   a particular  person  as being the culprit and  there  was  no previous  concert amongst the confessing accused, there  was no reason to reject their confessions and that the  evidence of the approver which, as here, was the primary evidence  in the   case   should  be  regarded  as   being   sufficiently corroborated by such confessions.  The argument was rejected by the Privy Council on several grounds.  One of the grounds was that the confessing accused had been produced before the magistrate  together for recording their confessions.   Then they pointed out at p. 157 :               "................ whilst appreciating that the               coincidence  of  a number  of  confessions  of               coaccused   all  implicating  the   particular               accused,  given independently, and without  an               opportunity  of  previous consent ,  might  be               entitled  to  great weight  (their  Lordships)               would nevertheless observe that courts  should               be  slow to depart from the rule of  prudence,                             based  on long experience, which requires  som e               independent    evidence    implicating     the

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             particular  accused.  The danger of acting  on               accomplice  evidence  is not merely  that  the               accomplice  is on his own admission a  man  of               bad character who took part in the offence and               afterwards to save himself betrayed his former               associates,  and who has placed himself  in  a               position in which he can hardly fail to have a               strong bias in favour of the prosecution;  the               real               (1)   (1949) L.R. 76 I.A. 147.               530               danger is that be is telling a story which  in               its  general outline is true, and it  is  easy               for him to work into the story matter which is               untrue.   He  may implicate ten people  in  an               offence, and the story may be true in all  its               details as to eight of them, but untrue as  to               the  other two, whose names have  been  intro-               duced   because  they  are  enemies   of   the               approver." It  would appear from the record of these appeals  that  the confessions of the approver and Manjappa Gowda were recorded on  the  same day, i.e., March 27, 1958 by Mr.  V.  Revanna, Magistrate,   First  Class,  Chikamagalur,  while  that   of Manjappa  Naika was recorded by another Magistrate on  March 29,  1958.  Mr. V. Revanna was examined as P. W. 41 in  this case  and  he  has stated in evidence  that  he  received  a requisition  from the Deputy Superintendent of  Police,  Mr. Ramaswamy  on March 22, 1958 for recording the  confessional statements  of  Manjappa Gowda and  the  approver,  Venkappa Naika  and  those persons were produced before him  on  that very  day.  He informed them that thereafter theY  would  be removed from the police custody and then he remanded them to the judicial look-up till March 24, 1958.  He also told them that  they  were  not bound to make  any  confessions.   As, however, he was on casual leave from March 23, 1958 to March 26,  1958, they were produced before him on March 27,  1958. It would appear that these persons were in the police  lock- up since their arrest till March 22, 1958 and were  actually brought  together  to  the  magistrate’s  court.   There  is nothing  to  show  that they were  kept  separate.   In  the circumstances there is no guarantee that the accounts  which they  have given of the incident in their  confessions  were independent and without previous concert.  Therefore,  apart from being a very weak type of evidence, there is an                             531 absence of intrinsic evidence in the confession of  Manjappa Gowda which would go to provide an assurance that it is true in  all its details.  It may be that the general outline  of the incident given by Manjappa Gowda is correct but  insofar as  it  iraplicates  the appellants before us  there  is  no guarantee  about  its truth.  We cannot,  therefore,  regard that  confession as affording corroboration to the  evidence of the approver. The  defect  which we have pointed out with respect  to  the confession  of Manjappa Gowda does not appear to be  present in  Manjappa  Naika’s  confession.  He  was  first  produced before  a magistrate for recording his confession  on  March 27,  1958,  and  was  then remanded  by  the  Magistrate  to judicial  custody till March 29, 1958.  It is possible  that since  this persons was arrested on March 15, 1958 by  which date  the approver and the other accused including  Manjappa Gowda  had presumably been arrested, they may have  been  in police custody together for some time.  It is, however,  not clear from. the record whether they were kept in custody  at

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the  same  place.  The circumstance appearing in  the  Privy Council case may , therefore, not be present in so far as he is concerned.  All the same we find that there is one  grave infirmity in his confession.  The record does not show  that when  Manjappa  Naika was produced before  a  magistrate  on March 27, 1958, and remanded by him to the judicial  custody he was given due warning by the magistrate and told that  he should reflect whether he should make any confession at all. In his examination as witness No. 44, the magistrate, Mr. K. S. Malle Gowda has stated as follows :               "On March 27, 1958, the Deputy  Superintendent               of  police produced before me AManjappa  Naika               and gave me the requisition, Ext.  P. 23,  for               recording his statement under               532               s.    164,  Cr.  P.C. On that, I remanded  A-4               Manjappa  Naika to the judicial  custody  till               March  29,  1958.  Accordingly, on  March  29,                             1958,  he  was produced before me in  my  Cour t               hall by the Sub-Jail authority at about  11.00               a.m." Thereafter  he  said  that he asked  the  usual  preliminary questions and then recorded the statement of Manjappa Naika. No  doubt,  it  would appear that on  March  29,  1958,  the Magistrate  asked Manjappa Naika whether he wanted  time  to think over the matter to which the latter replied:  "write", presumably meaning thereby that he did not want time.  That, however, is not sufficient compliance with the  requirements of  law.   It has been pointed out by this Court  in  Sarwan Singh v. The State of Punjab (1) that when accused person is produced by the investigating officer before the  Magistrate for recording his confession, it is of the utmost importance that  his mind should be completely free from  any  possible influence of the police and he must be send to Jail  custody and given adequate time to consider whether he should make a confession  at  all.  It is true that here  Manjappa  Naika, after  being produced by the Investigating officer before  a Magistrate for recording his confession the latter  remanded him to the judicial custody upto March 29, 1958, i. e.,  for two days but it was necessary for the magistrate to make  it clear  to Manjappa Naika that he was not bound to  make  the confession and that if he made the confession, it was likely to  be  used  against him and  that,  therefore,  he  should reflect  whether he should make any confession at  all.   It does  not  appear from the evidence of  the  Magistrate  Mr. Malle  Gowda that he brought these important matters to  the notice of Manjappa Naika while remanding him to the (1)  [1957] S.C.R. 953.                             533 judicial  custody.  In the circumstance, the  confession  is not one upon which a Court can properly act. That leaves for consideration only one circumstance on which the High Court has relied and that is   the  failure of  the appellant, Chinna Gowda, not to    go  to  the house  of  T. Shiviah alias T. Shivaswamy, P.    W.  75, for  receiving  a loan on February 13, 1958.  It is said that he did not do so because  he had with him the booty collected from the  house of the deceased Mariappa Gowda and, therefore, he no  longer stood  in  need of raising the loan.  There may  be  various reasons  why Chinna Gowda did not keep his  appointment  but even  assuming that he had come by some money and that  this happened as a result of the incident which took place on the night  between  February 12 and 13, 1958, it  would  not  be legitimate  to conclude that he had himself participated  in

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the murders. Thus we are left only with the evidence of the approver.  As already   pointed  out,  his  evidence  suffers   from   two infirmities:  on  his  own  showing  be  is  a  man  of  bad character,  and  further  in the  court  of  the  committing magistrate  he  went  back upon his  confession  before  Mr. Revanna, Magistrate First Class.  Again he is a person whose business is to manufacture illicit liquor.  Thus, apart from participating  in the heinous crimes which were  perpetrated on  the night in question, he has been leading a life  of  a lawbreaker.   His  evidence,  standing  by  itself,  cannot, therefore,  carry conviction.  Indeed neither  the  Sessions Judge nor the learned Judges of the High Court regarded  his evidence  as bring sufficient to justify conviction  of  the various accused persons.  In the circumstances we must  hold that  his  evidence cannot safely be regarded  as  the  sole basis  for  resting  the conviction of  the  two  appellants before us. 534 We  therefore, allow each of the two appeals, set aside  the conviction  and sentences passed against the appellants  and direct that they be set at, liberty. Appeals allowed.