JUDGMENT This appeal is filed by the accused in Sessions Case No. 38 of 1962 against the judgment of the Second Additional Sessions Judge, Bijapur, convicting the accused for an offence punishable under Part II of section 304 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years. The appellant-accused was charged with the offence of having committed culpable homicide not amounting to murder by causing the death of his brother Dyavappa on 19th May, 1962, at about 12 noon at Hireyargal by hitting the deceased on his head with a stone. Though the charge was for an offence under the first part of section 304 , Indian Penal Code, the learned Sessions Judge convicted him under the second part of section 304, Indian Penal Code. The prosecution case, briefly stated, is as follows: Deceased Dyavappa and accused Shankarappa Irappa Keraki are the sons of Siddawwa (P.W. 2). Siddawwa also has a daughter by name Yellawwa (P.W. 5). Siddawwa's husband Gurappa died about twenty years ago. Deceased Dyavappa who was the elder of the two brothers was leading an immoral life since about seven years prior to his death. He was addicted to drinking and gambling. Though he was married to his mother's brother's daughter he was keeping a woman by name Mahabubbi. He was residing at Sindhagi with Mahabubbi. Accused was living with his mother and cultivating the family lands at Hireyargal. The deceased was coming to Hireyargal to his mother's house at Hireyargal now and then, creating trouble, demanding monies from his mother and brother and beating and abusing them often. About the time of Holi Hunnime in the year 1962 he came to Yargal took away a cow and a calf belonging to his mother and brother and removed them to the house of another person in that village. Thereafter his mother gave him some money and brought back the cow and the calf. A few days later, he again came to Hireyargal and demanded his mother and his brother to leave the house as he wanted to occupy it. A day prior to the date of occurrence the deceased came to the house of his mother and his brother and again demanded them to leave the house. When his mother advised to live amicably with his brother, he abused her and kicked her. A day prior to the date of occurrence the deceased came to the house of his mother and his brother and again demanded them to leave the house. When his mother advised to live amicably with his brother, he abused her and kicked her. When the accused came to the house, the deceased prevented him from entering the house and drove him off. On the day of occurrence, namely, Saturday the 19th May, 1962, the deceased again came tothe house of his mother and his brother carrying some bottles of liquor and began to create trouble. Just ten or twelve days prior to that date, his sister Yellawwa (P.W. 5) had given birth to a child and was since then living in her mother's house. After creating trouble, the deceased was found lying near a banni tree outside the house. P.W. 2 Siddawwa brought him to the house and made him lie down in the padasala. She went out topick up some fuel. When she was about to return to the house the accused also was returning from his filed and entering the house. The prosecution case is that when the accused went near the house, the deceased Dyavappa again prevented the accused from entering the house. Enraged by the acts of the deceased the accused threw a stone on the head of the deceased which resulted in severe injuries on the head of the deceased. The deceased fell down profusely bleeding. The accused ran away from the place and informed his mother. P.W. 2, Siddawwa, made the deceased lie down on a gunny bag and put a pillow underneath his head. The accused brought some medicinal tablet from a shop powdered it and applied to the wounds on the head of the deceased. But the deceased succumbed to the injuries. The Police Patil of Hireyarsal had gone to Sindhagi on that day. One of the Walikar conveyed the information to the Police Patil at Sindhagi on the next morning. The Police Patil returned to the village got the first information from P.W. 2 Siddawwa and sent it with a Karbari report to the Police Station at Sindhagi. The walikar kept a watch over the dead body. The first information reached the Police at about 2 P.M. on 25th May, 1962. The Police Patil returned to the village got the first information from P.W. 2 Siddawwa and sent it with a Karbari report to the Police Station at Sindhagi. The walikar kept a watch over the dead body. The first information reached the Police at about 2 P.M. on 25th May, 1962. The Head Constable who was in the Police Station proceeded to the scene of occurrence and held an inquest over the dead body. He sent the dead body for postmortem examination to the Assistant Surgeon at Sindhagi. In the mean while the Police Sub Inspector came there and took over further investigation. The accused was arrested on 21st May, 1962, at about 7 p.m. When questioned by the Police at about 4 a.m. on 22nd May, 1962, the accused offered to point out the place where he had put the stone which he threw on the head of the deceased. As it was dark, the Police Sub-Inspector summoned the Panchayatdars at day break. The accused took the Police and the Panchayatdars to his cattle shea and pointed out the said stone. The said stone was seized under a Panchanama. But there were no traces of Hood oh the said stone. Sometime after he was arrested the accused expressed his willingness to make a confession. On 22nd May 1962, the accused was taken before the Judicial Magistrate, Sindhagi, who remanded him to Magisterial custody for seven days. The accused was taken before the Taluka Magistrate, Sindhagi, on 25th May, 1962, with a memo requesting the said Magistrate to record the confession of the accused. After putting a few questions to the accused, the Taluka Magistrate remanded the accused to judicial custody till the next day On 26th May, 1962, at 3 p.m.., the accused was again brought before the Taluka Magistrate. After satisfying himself that the accused was prepared to make a voluntary confession, the Taluka Magistrate recorded his confession. The accused confessed that in a fit of anger caused by the conduct of the deceased, he (the accused) threw a stone on the head of the deceased and ran away and that he later returned to his house and applied some medicinal powder to the head of the deceased. The Assistant Surgeon conducted the post-mortem examination of the deceased body on the morning of 21st May, 1962, and issued a post-morten certificate. The Assistant Surgeon conducted the post-mortem examination of the deceased body on the morning of 21st May, 1962, and issued a post-morten certificate. According to the Doctor, there were three injuries. (i) a lacerated wound near the left eye-brow ; (ii) another lacerated wound about 3/4th “above injury No. (i) ; and (iii) another lacertated wound on the occipital region of the head 1/4” × 1/4“by 1/4”. There was fracture of skull and the brain matter was coming out. According to the Doctor, the aforesaid injury was sufficient in the ordinary course of nature to cause death. The Doctor opined that those injuries could be caused by hurling of stones. He also opined that these injuries could be caused by the deceased falling more than once on a hard surface like a stone slab, though such injuries would not normally be caused by a fall of a person on a hard surface. The Police placed a charge-sheet against the accused in the Court of the Judicial Magistrate, First Class, Sindhagi. During the course of the committal proceedings, the accused was examined by the learned Magistrate under section 207-A (6) of the Criminal Procedure Code. Even before the committal Court, the accused retracted the confession and stated that he made that confession as the police had beat him. The learned Magistrate committed the accused to take his trial in the Court of Sessions. The prosecution examined 23 witnesses including the two investigating officers. The prosecution had called P.W. 2 Siddawwa and P.W. 5, Ycllawwa the mother and the sister of the accused, respectively as eye witnesses to the occurrence. But both of them did not support the prosecution. The prosecution sought permission to treat them as hostile. The Court granted such permission and the Public Prosecution was allowed to put questions by way of cross-examination. The Taluka Magistrate who recorded the confession was examined as P.W. 4 in the Sessions trial. As the alleged direct witnesses to the occurrence did not support the prosecution, the prosecution case rests on circumstantial evidence under the following heads: (i) Evidence of motive ; (ii) The discovery of the stone (M.O. 12) alleged to have been thrown by the accused on the head of the deceased, on the information furnished by the accused ; (iii) The evidence of P.Ws. 2 and 5 that the accused was at his house close to the time of occurrence and that the accused ran away from the house soon after the deceased fell down with severe injuries on his head ; and (iv) The confession of the accused recorded by the Magistrate under section 164 of the Criminal Procedure Code. I think it does not admit of serious doubt that the evidence adduced by the prosecution establishes that there was sufficient motive which could have impelled the accused to commit this crime. P.W. 2 Siddawwa, P.W. 5 Yellawwa, P.W. 6 Malakappa, Police Patil and P.W. 19 Mahabubbi have all spoken to the profligate life which the deceased was leading and his creating trouble in the house of the accused, his beating and abusing the accused and his mother, his demanding money for his dissolute activities and his obstructing the accused both on the day of occurrence and on the previous day, from entering the house. There is no reason to disbelieve the evidence of these witnesses regarding the motive. The evidence adduced by the prosecution regarding the discovery of the stone (M.O. 12) on the information alleged to have been furnished by the accused suffers from a serious infirmity. According to P.W. 22 the Police Sub-Inspector, the accused stated at 4 a.m.. on 22nd May, 1962, that he had kept a stone in the cattle shed of his house and that he would produce the same. It was open to the Sub-Inspector to have recorded the statement of the accused in his Police Diary and proceeded with the accused to the place where the accused would point out the stone. Instead of doing so, he waited until he was able to get certain panch witnesses. He made the accused repeat the same information in the presence of Panchayatdars and lead the Panchayatdars and the Police to the place where the stone was lying. The statement made by the accused before the Panchayatdars cannot be said to be the information which led to the discovery of the stone. In Public Prosecutor v. Subba Reddi, A.I.R. 1939. Mad. 15, A.I.R. 1948 Nag. 344, (1925) I.L.R. 52 Cal. The statement made by the accused before the Panchayatdars cannot be said to be the information which led to the discovery of the stone. In Public Prosecutor v. Subba Reddi, A.I.R. 1939. Mad. 15, A.I.R. 1948 Nag. 344, (1925) I.L.R. 52 Cal. 67 the facts were briefly as follows: The Circle Inspector knew beforehand what the accused was going to say, but finding it necessary to have more trustworthy persons present as witnesses when the information should be disclosed, he sent for two witnesses to go to the Police Station where the accused was kept in custody and on the arrival of those witnesses the accused was brought out of the lock-up and examined by the Circle Inspector. The statement of the accused was embodied in a panchayatnama and signed by the witnesses. The information said to have been then given by the accused led to the discovery of certain instruments by which the accused was alleged to have committed murder. Burn, J., observed as follows: “It is impossible to say that anything was discovered in consequence of the statement made by the respondent to the Inspector in the presence of P.Ws. 15 and 16. We have had occasion to depreciate this manner of manufacturing evidence before and we shall if necessary continue to do so. Section 27, Evidence Act, is not designed by the Legislature to encourage proceedings of this sort. Section 27, as we have frequently held, is quite simple; it says that where any fact is deposed to as having been discovered in consequence of information given by a person in custody accused of an offence, so much of the information as relates distinctly to the fact thereby discovered maybe proved, whether it amounts to a confession or whether it does not. Apparently, the Circle Inspector (P.W. 18) like so many of his fellow officers, was afraid that if he went into the Court and said that he had received such and such information from the accused, the Court would not believe him. He therefore found it necessary to have more trustworthy persons than himself present as witnesses when the information should be disclosed. This is a regrettable attitude on the part of any Police Officer and much more on the part of an officer of the grade of Circle Inspector. The Circle Inspector ought to expect to be believed when he gives evidence on oath. This is a regrettable attitude on the part of any Police Officer and much more on the part of an officer of the grade of Circle Inspector. The Circle Inspector ought to expect to be believed when he gives evidence on oath. We think that the evidence regarding the statements made by the respondent and embodied in the panchayatnama (Ex. G-2) and spoken to by P.Ws. 15,) 6 and 18 was wholly inadmissible.” I am in respectful agreement with the above observations of Burn, J., In the circumstances, the evidence of the Police Sub-Inspector (P.W. 22) and the panch witnesses (P.Ws. 8 and 9) regarding the statement alleged to have been made by accused, and which is alleged to have led to the discovery of the stone, M.O. 12, is wholly inadmissible in evidence. Further no blood stains were found on the stone. The presence of such a stone in the cattle shed by itself does not help the prosecution to connect the accused with the crime. Regarding the circumstance that the accused ran away from the house soon after the occurrence, the accused had offered an explanation that he ran from the house with the object of bringing some medicine and to render aid to his injured brother. According to the Prosecution evidence the occurrence took place at about 12 noon. P.W. 13 Shankarappa who sold some medicinal tables to the deceased on that day has stated that the accused came to his shop at about 2-30 p.m. Thus it is difficult to accept the explanation of the accused that he ran from the louse to bring medicine. The two circumstances namely that the accused was present in his louse at about the time the occurrence took place and that the accused ran away from the house soon after the occurrence are undoubtedly incriminating circumstances. But they by themselves are not sufficient to lead to an inference that it is the accused who caused the death of the deceased on that day. Mr. Ashrit the learned Government Pleader, frankly stated that unless the confession of the accused is accepted in evidence, these two circumstances, by themselves, are not sufficient to bring home the guilt of the accused. Hence the most important question in this appeal is whether the confession of the accused was voluntary and acceptable in evidence. Mr. Ashrit the learned Government Pleader, frankly stated that unless the confession of the accused is accepted in evidence, these two circumstances, by themselves, are not sufficient to bring home the guilt of the accused. Hence the most important question in this appeal is whether the confession of the accused was voluntary and acceptable in evidence. No doubt P.W. 4, the Taluka Magistrate who recorded the confession has stated that he put several questions to the accused to satisfy himself that the accused was making the confession voluntarily and free from any influence by the Police. He had also complied with the formalities of putting the questions appearing in the form prescribed in the Bombay High Court Criminal Circular. But the following three circumstances make it difficult to accept this confession as voluntary: (i) The Magistrate recording the confession putting a leading question about complicity of the accused ; (ii) Inordinate delay in the accused being taken before the Magistrate for recording the confession ; (iii) The situation of the jail and the of the Taluka Magistrate and the custody of the accused in that jail. After putting preliminary questions to satisfy himself as to the voluntariness of the confession the Taluka Magistrate questioned the accused as follows: “Why did you murder Devendrappae” In the original of Exhibit 19 the question in Kanada. [* * * * * *] It is needless to say that this question was highly objectionable. It made the accused feel that the Magistrate had already come to the conclusion that the accused had committed the offence and that the Magistrate was merely interrogating him to get some particulars of the offence committed by the accused. Naturally in those circumstances the accused would feel that he was not allowed to make a statement of his own and his answers must be on the hypothesis that he had committed the offence and that it might not be open to him to state that he had not committed the offence. In Mt. Bhukhin v. Emperor, (1956) S.C.J. 243: (1955) 2 S.C.R. 1285 : (1956) 1 MLJ. (S.C.) 135 similar leading questions were put by the Magistrate who recorded the confession. In Mt. Bhukhin v. Emperor, (1956) S.C.J. 243: (1955) 2 S.C.R. 1285 : (1956) 1 MLJ. (S.C.) 135 similar leading questions were put by the Magistrate who recorded the confession. Considering whether the confession were voluntary their Lordships of the Nagpur High Court observed as follows: “The questions indicate that the learned Magistrate was told what Malikram was to state and he elicited the necessary facts by putting him three leading questions. The procedure adopted by the learned Magistrate was highly objectionable and the confession so recorded must be rejected as not voluntary.” P.W. 22 the Police Sub-Inspector has deposed that he arrested the accused at about 11 A.M. on 21st May, 1962, and that when the accused was questioned he expressed his willingness to make a confessional statement. When the accused was taken before the Judicial First Class Magistrate, Sindhagi, on 22nd May, 1962, the Police Sub-Inspector sent a Memo. In that Memo, it was stated as follows: “In case the accused is prepared to make confession statement, he may be produced for recording the confession statement before the Tahsildar, Sindhagi, whenever he requires his presence.” From this statement, it is not possible to state that the PoliceSub-Inspector made known to the said Magistrate that the accused had clearly expressed an intention to make a confession. The accused was taken before the Taluka Magistrate on 25th May, 1962, for recording the accused's confession. The prosecution has not explained this inordinate delay in sending the accused to the Magistrate for recording his confession. During the course of his examination before the Sessions Court under section 342 of the Criminal Procedure Code, the accused reiterated chat he made the confession out of fear of the Police. He even alleged that the Police Sub-Inspector gave him threats, beat him and directed him to state as per the directions of the Police Sub-Inspector. In Emperor v. Panchakowri Dutt1 Mukherji, J., observed as follows: “&&..if a prisoner wishes to make a voluntary statement, the Police must produce him before a Magistrate and let him do it whatever might be its character. Delay in producing prisoners, who are willing to have their confessions recorded has been always held to affect the value of the confessions: Emperor v. Noni Gopal Gupta, 15 C.W.N. 593 that is so because of the principle that such confessions cannot safely be regarded as voluntary. Delay in producing prisoners, who are willing to have their confessions recorded has been always held to affect the value of the confessions: Emperor v. Noni Gopal Gupta, 15 C.W.N. 593 that is so because of the principle that such confessions cannot safely be regarded as voluntary. As I have said the delay is deplorable&&&.” Quoting the aforesaid observations of Mukherji, J., with approval, Divatia, J., stated as follows in Savlimiya v. Emperor, A.I.R. 1944 Bom. 338: “Although the section does not say anything as to when the accused can be brought before the Magistrate after he shows his willingness to confess, there is no doubt on general principles that the accused must be sent to magisterial custody as soon as he expresses such willingness. It may be that the Police might not have at that time started any investigation or that the investigation might be incomplete, but, in my opinion, there is no justifiable reason why the Police should keep an accused person in their custody for several days after they know that he wanted to confess, merely on the ground that his presence was necessary for further investigation. In all cases where the investigation by the Police is either conducted or continued after the accused expresses his desire to confess, and if ultimately after the investigation is over the accused does make a confession, there would not be an unreasonable ground for apprehension that the confession was made to fit in with the result of investigation so that it may be regarded as having been corroborated”. I am in respectful agreement with the aforesaid observations of the two learned Judges. Thus, the delay in the Police sending the accused before the Magistrate who recorded the confession, throws a considerable doubt as to the voluntariness of the confession. Mr. K.J. Shetty, the learned Counsel for the appellant contended that the confession made by the accused cannot be said to be voluntary as the Police Sub-Inspector was observing the accused when the accused was making the confession and as the Police Guard of the Sub-Jail was a Police Constable working under the said Police Sub-Inspector. Amplifying his contention Mr. Mr. K.J. Shetty, the learned Counsel for the appellant contended that the confession made by the accused cannot be said to be voluntary as the Police Sub-Inspector was observing the accused when the accused was making the confession and as the Police Guard of the Sub-Jail was a Police Constable working under the said Police Sub-Inspector. Amplifying his contention Mr. Shetty stated that the Office of the Police Sub-Inspector adjoins the Office of the Taluka Magistrate and that a person standing in the verandah of the Police Sub-Inspector's Office can see the inside of the Office of the Taluka Magistrate through the windows ana doors. But P.W. 22 the Police Sub-Inspector, has denied during the course of his crossexamination that he was standing in the venandah of his Office and was making any gestures by way of threat when the confession of the accused was recorded. The mere fact that the Office of the Police Sub-Inspector is within twenty feet of the Office of the Taluka Magistrate would not be a ground for holding that the accused was under the influence of the Police Sub-Inspector when making the confession. But the contention of Mr. Shetty that the Police Guard of the Sub-Jail was a subordinate of P.W. 22 Police Sub-Inspector has been admitted by P.W. 4 the Taluka Magistrate in his cross-examination. Mr. Shetty has relied on the decision of the Supreme Court in Raja Khima v. State of Saurasktra1 wherein Bose, J., observed as follows: “The length of time is unusual but no objection about its fairness to the accused could reasonably have been raised had it not been for the fact that the judicial lock-up is in charge of a Police Guard which is under the direct control, orders and supervision of the very Sub-Inspector who had conducted the investigation and had earlier suspected and, according to the accused actually arrested three other persons ;&&&&&&&&..” The mere fact that the Police Guard in charge of the judicial custody is a Police Constable subordinate to the Police Officer investigating into the case, need not always lead to the conclusion that the accused was under the influence of the police even when he was in such judicial custody. But this circumstance, coupled with the circumstances of inordinate delay on the part of the Police in sending the accused before the Magistrate would throw a serious doubt as to the voluntariness of the confession. In view of the aforesaid circumstances, the confession made by the accused cannot be considered as voluntary and hence has to be rejected. If the confession of the accused is excluded, the circumstantial evidence in the case is far too slender to establish the complicity of the accused. In the result, this appeal is allowed; the conviction and sentence passed by the learned Additional Sessions Judge, Bijapur, is set aside, and the appellant accused is acquitted. The bail bond of the appellant-accused is hereby cancelled. S.V.S.-----Appeal allowed.