LexBABU SINGH versus STATE OF PUNJAB
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3 S.C.R. SUPREME COURT REPOR'rS 749 BABU SINGH v. STATE OF PUNJAB (P.' B. GAJENDRAGADKAR, K. C. DAS GUPTA and J. R. MUDHOLKAR, JJ.) Criminal Trial-Confession-Voluntariness of-Circuma-· tances showing confession involuntary-Duty of Magistrate recori£ing confession-Code of Criminal Procei£ure, 1898 (Act V of 1898), ss.164(3), 364(3). 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 appellanh under ss. 302 and 201 rt>ad 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 recorded 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 had 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 1111 .4.u:i111 28. 1912 Babu Si"IJh v. State of PunJab 750 SUPREME COURT :REPORTS [1963] 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 bis instance a.nd of the evidence of the witnesses of the recovery. Nazir Ahmed v, The King Emperor ( 1936) L. R; 63 I. A. 372 referred to. · CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 121 & 140/62. Appeals by special leave from. the jn.dgment 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 G1J1ndragadkar J. GAJENDRAGADKAR, J.-These two Criminal Appeals Nos. 121 and 140 of 1962, ariBe out of a criminal case in which the two appellants Babu Singh and Babu Lal were charged with having com- mitted offences undflr s. 302 read with s. 34 and s. 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. 3 S.C.R.. SUPREME COURT REPORTS 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 authori- ties that he apprehended danger from his son. The prosecution case as it was laid before the trial court
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