( 51 ) MEHFOOZ llahi appellant had produced his wife Smt. Khurshid Begum (DW-7 ). her two brothers, Noor Ahmad (DW-6) and Guizar Ahmad (DW-9) to show that he was at Meerut from the 4th to the 11th January 1968. As the prosecution has failed to prove its case against Mehfooz Ilahi it is unnecessary to discuss the defence evidence. ( 52 ) BOTH Criminal Appeals Nos. 55 and 56 of 1969 are allowed; the conviction and sentence of both the appellants are set aside and they are acquitted of the offence with which they were charged. They should be released forthwith. ( 53 ) IT is a matter of regret that a cold blooded and gruesome murder of an innocent child would go unpunished, but the prosecution has to thank itself for this regrettable result. Om Parkash, J. ( 1 ) THIS order will dispose of Criminal Appeals Nos. 55 and 56 of 1969, which have arisen out of the same case and are directed against the. same judgment of the learned Additional Sessions Judge. The appeals have been filed by Babu, son of Mohd. Rafiq, resident of Gali Saydan Bazaar Chitlikabar, Delhi, and Mehfooz Ilahi, son of Ashiq Ilahi, resident of Gali Madarsa Churiwalan, Delhi, respectively. The prosecution case against the appellants was as under :- MEHFOOZ llahi appellant was a tenant of a premises owned by Azizul Rehman (Public Witness -1 ). The premises had been let as a store, but Mehfooz llahi had started a Tandoor therein. Azizul Rehman (Public Witness -1) had obtained an order of eviction against Mehfooz llahi. He had sought permission of the slum authorities for eviction of Mehfooz llahi. During the course of proceedings, Mehfooz llahi had undertaken that he would stop the running of the Tandoor and would use the premises as a store only. On this undertaking the proceedings for permission to evict were dropped. But Mehfooz llahi had felt aggrieved as he had been prevented from running a Tandoor in the premises. He, therefore, entertained a grudge against Azizul Rehman. Babu appellant was a friend of Mehfooz Alahi. Babu loved a daughter of Azizul Rehman (Public Witness -1 ). That daughter was married by Azizul Rehman to some other person. The frustration in love had embittered Babu against Azizul Rehman. ( 2 ) AZIZUL Rehman had another daughter, named Saira. aged 8 or 9 years. Babu appellant was a friend of Mehfooz Alahi. Babu loved a daughter of Azizul Rehman (Public Witness -1 ). That daughter was married by Azizul Rehman to some other person. The frustration in love had embittered Babu against Azizul Rehman. ( 2 ) AZIZUL Rehman had another daughter, named Saira. aged 8 or 9 years. On 9-1-1968, at about 4 or 4. 30 P. M. , Saira had gone to witness a Tamasha of a tame bear in the Churiwalan street. Shortly thereafter, Saira was seen by Mohd. Hafiz (Public Witness -2) being taken away by Babu appellant. She had a dona containing Namak Batasha in her hand. Babu had taken Saira to the house of Mehfooz llahi. There, he had committed rape on her. Saira had become unconscious. Babu had, with the Khukri (Ex. P-8), which was lying in the house of Mehfooz llahi, chopped off the head, arms and legs of Saira from the rest of her body and had badly mutilated her private parts. Babu had put the head, wrapped in a gunny bag, in a canister and had thrown the canister in the drain near the Municipal Corporation office. Babu had then returned to the house of Mehfooz llahi. He had wrapped the arms and legs of Saira in a gunny bag and had also put the torso in another gunny bag. The gunny bag, containing the arms and legs, was taken by Babu and Mehfooz Ilahi in a rickshaw to the Railway Station, Delhi. The bundle was carried by them to the platform. It was placed, by Babu, in a third class coach of a train which was leaving for Allahabad. Both Babu and Mehfooz llahi had come back to the house of Mehfooz llahi. The gunny bag, containing the torso, was thrown into the moat of the Red Fort by Mehfooz llahi. ( 3 ) AS Saira did not return home on 9-1-1968, after she had left for witnessing the Tamasha, her mother, Smt. Mumtazi (PW-5) made inquiries in the neighbourhood, but Saira could not be traced. At about 7. 00 P. M. , Azizul Rehman (Public Witness -1), the father of Saira, had also returned to his house from his work. Both the husband and the wife made a search for Saira throughout the night. But their search did not yield any result. On 10-1-1968 at about 10. At about 7. 00 P. M. , Azizul Rehman (Public Witness -1), the father of Saira, had also returned to his house from his work. Both the husband and the wife made a search for Saira throughout the night. But their search did not yield any result. On 10-1-1968 at about 10. 00 A. M. , Smt. Mumtazi lodged the report, Ex. Public Witness. 12/a, at the Police Station, Kotwali Delhi about the missing of Saira. On 11-1-1968, Azizul Rehman and Smt. Mumtazi had decided to go to Meerut to consult an astrologer about the missing of Saira. Mehfooz llahi was at Delhi on the 11th. At Meerut, Azizul Rehman and Smt. Mumtazi had visited the house of the in-laws of Mehfooz llahi. Mehfooz llahi was lying there on a cot. Smt. Mumtazi had asked Mehfooz llahi that he should return Saira to them and that they would not take any action against him. Mehfooz llahi had replied that he did not know about Saira and that if they so desired they could have one of his children. Azizul Rehman and Smt. Mumtazi had come back to Delhi on 11-1-1968, in the evening. Mehfooz llahi had reached back Delhi before them. ( 4 ) ON 12-1-1968, Tirath Ram (Public Witness -15), S. H. O. Police Station, Kotwali Delhi, had received information that human body was lying in the moat of the Red Fort. Tirath Ram had gone to the spot and had found a torso and a gunny bag. Tirath Ram had got a case registered on the basis of Ruqqa Ex. Public Witness -15/a and had started investigation. During the course of investigation, he had learnt that a human head had been recovered in the area of the Police Station, Daryaganj. The human head had been recovered on 13-1-1968 from the municipal drain near the Municipal Corporation Office, on the Circular Road. Kifayat Ali (PW-3) and Thakur Dass (Public Witness -4) were cleaning the drain when they had come across the human head. The aforesaid persons had informed A. S. I. Ram Parkash (Public Witness -20 ). who was on patrol duty in the area. D. S. P. Rattan Singh (Public Witness -34) had also come there. The human head was of a girl. The photographs, Exs. PW. 1/a to Public Witness. 1/c, of the head were taken. The aforesaid persons had informed A. S. I. Ram Parkash (Public Witness -20 ). who was on patrol duty in the area. D. S. P. Rattan Singh (Public Witness -34) had also come there. The human head was of a girl. The photographs, Exs. PW. 1/a to Public Witness. 1/c, of the head were taken. On learning from some women that a human head had been recovered from the municipal drain, Smt. Mumtazi (Public Witness -5) had gone there. She had identified the head to be that of her daughter, Saira. ( 5 ) DR. S. S. Kaushal (Public Witness -11) had conducted postmortem examination on the head recovered. He had found an incised wound with laceration of subcutaneous tissues and bruising at the edges. Larynx and trachea had been cut through and through. In the opinion of the doctor, death had been possibly caused by the cutting of the neck with a heavy cutting sharp edged weapon. ( 6 ) ON 13-1-1968 the house of Mehfooz Ilahi was searched and the Khukri (Ex. P-8) was recovered. The sharp edge of the Khukri had some stains of blood in it. On 15-1-1968, Mehfooz llahi was arrested from the house of Shri Mir Mushtaq by D. S. P. Rattan Singh (Public Witness -34 ). He was brought to the police station and interrogated. His clothes, Exs. P-6 and P-7, whichhad blood stains, were taken into possession. Mehfooz llahi had made the disclosure statement. Ex. Public Witness -6/b, stating that he had buried the clothes of Saira and would get them recovered. He had taken the police to a place near Mahatma Gandhi s Samadhi and had, from underneath a mound of earth, discovered the frock (Ex. P-2) and the Salwar (Ex. P-1 ). The clothes were blood stained They were taken into possession. Thereafter, Mehfooz Ilahi had taken the police to the moat of the Red Fort. The gunny bag (Ex. P-22) was recovered from the moat, Mehfooz Ilahi had then taken the police to his house in Gali Madarasa. The floor of the room. a wooden plank and bench, lying there, had blood stains. The police had taken into possession the blood stained earth from the floor, the blood-stained portions of the wooden plank and the bench. ( 7 ) BABU had been arrested by S. I. Avtar Singh. near Delite Cinema on 15-1-1968. The floor of the room. a wooden plank and bench, lying there, had blood stains. The police had taken into possession the blood stained earth from the floor, the blood-stained portions of the wooden plank and the bench. ( 7 ) BABU had been arrested by S. I. Avtar Singh. near Delite Cinema on 15-1-1968. He was handed over to D. S. P. Rattan Singh (Public Witness -34 ). The clothes (Exs. P-13 and P-14), worn by Babu at the time of arrest had blood stains. They were taken into possession. On interrogation, Babu had made the disclosure statement. Ex. Public Witness -8/f, that he would discover the canister. Babu had then led the police to the municipal drain near the Municipal Corporation Office and had discovered the canister (Ex. P-15 ). On 26-1-1968. Babu had made the disclosure statement (Ex. Public Witness -1/f) to S. I. Ruchi Ram (Public Witness -33) staling that he had hidden the coat of Saira and would discover it. Babu had then taken the police to the eastern side of Maharaja Ranjit Singh Road and had discovered the coat (Ex. P-3) from a place near the crossing of that road with Jawahar Lal Nehru Marg. ( 8 ) ON 21-1-1967, Mehfooz Ilahi had made the confessional statement (Ex. Public Witness -21/g) before Shri M. M. Oberor (PW-21), Magistrate First Class. The confessional statement was a detailed one. It narrated the whole incident very vividly. It stated how Babu had brought Saira to the house of Mehfooz Ilahi, committed rape upon. her dispute Mehfooz llahi protestations, had then chopped off the head, arms and legs of Saira and how the chopped off limbs were disposed of. ( 9 ) THE legs and arms of Saira which had been placed in the train were discovered at Allahabad on 11-1-1968. The staff washing the train had reported to Lal Bahadur (Public Witness -16), a train examiner, that a gunny bag containing some part of the body of a child was lying in the compartment of the train, which had come from Delhi. The gunny bag containing the legs and arms was taken out of the compartment and was forwarded to the police. Dr. B. N. Srivastava (Public Witness -26) had performed postmortem examination on the legs and the arms. The doctor had found incised wounds. The gunny bag containing the legs and arms was taken out of the compartment and was forwarded to the police. Dr. B. N. Srivastava (Public Witness -26) had performed postmortem examination on the legs and the arms. The doctor had found incised wounds. The doctor was of the opinion that the injuries were ante mortem and that the person, whose body parts the legs and the arms had formed, might be between 10 to 12 years of age. The doctor was further of the opinion that the wounds had been caused by a sharp edged weapon. ( 10 ) THE clothes (Exs. P-1 to P-3) the clothes (Exs. P-6 and P-7), the clothes (Exs. P-13 and P-1 4) and the pieces of the wooden plank and the bench were found to be stained with human blood by the Serologist. ( 11 ) ON the above facts and circumstances, the two appellants were hauled up and committed for trial for various offences. ( 12 ) BOTH the appellants denied the charges levelled against them. Mehfooz Ilahi appellant admitted that he was a tenant of Azizul Rehman (Public Witness -1) and that the latter had taken out ejectment proceedings against him. But he denied that he bore any grudge against Azizul Rehman. On the other hand. according to Mehfooz Ilahi, Azizul Rehmam. entertained a grudge against him and had got him falsely implicated in the case. In as much as Azizul Rehman wanted the appellant to vacate the premises or to pay pugree and the appellant had declined to do either. Mehfooz Ilahi admitted that Saira was the daughter of Azizul Rehman but denied that she had come to his house with Babu or that Babu had raped her in his house or that Saira was murdered in his house. Mehfooz Ilahi denied that he had buried the clothes of Saira or that he had made any disclosure statement or had discovered the clothes (Ex. P-1 and Ex. P-2) or the gunny bag (Ex. P-22 ). He also denied that the Khukri (Ex. P-8 or the blood stained pieces of the wooden plank and the bench or the blood stained earth had been been recovered from his house. Mehfooz Ilahi admitted that the clothes, Exs. P-6 and P-7. belonged to him. P-1 and Ex. P-2) or the gunny bag (Ex. P-22 ). He also denied that the Khukri (Ex. P-8 or the blood stained pieces of the wooden plank and the bench or the blood stained earth had been been recovered from his house. Mehfooz Ilahi admitted that the clothes, Exs. P-6 and P-7. belonged to him. His explanation about the blood stains, found on the clothes was that he was called to the police station on the 12th January and interrogated and given beating. He was again called on the 13th and given beating. According to Mehfooz llahi. blood had come out of his nose and had fallen on his clothes. Mehfooz Ilahi admitted that he had made the confessional statement (Ex. Public Witness -21/g ). But pleaded that it was false and was made at the instance of the police who had given him beating and had also given a promise that he would be set free if he made a statement as desired by the police. ( 13 ) MEHFOOZ Ilahi had produced defence evidence. Chaman Lal (DW-1), news editor, Daily Pratap, New Delhi, stated that the news item (Ex. D-1) (wrongly recorded as Ex. D. A. in the deposition. Ex. D. A. is a report made by D. S. P. Rattan Singh (PW-34) on the application of Mehfooz llahi for making him an approver in the case), had appeared in the Daily Partap of the 15th January 1968. This new item was dated the 14th January. It was stated that the police was interrogating two young persons in connection with the gruesome murder of a 7 years old girl Saira of Mohalla Churiwalan and that both the youngmen were in the police custody. It was further stated that a Khukri had been recovered from the house of one of the youngmen. Mangu Ram (DW-2), Assistant Superintendent Central Jail, Tihar, produced an application made by Smt. Khurshid Begum (DW-7), wife of Mehfooz llahi, for the grarit of permission to a lawyer to interview Mehfooz llahi in jail. Smt. Nafisa Begum (WD-3) had stated that Mohd. Hafiz (PQ-2) had not got stitched any clothes from her. Mangu Ram (DW-2), Assistant Superintendent Central Jail, Tihar, produced an application made by Smt. Khurshid Begum (DW-7), wife of Mehfooz llahi, for the grarit of permission to a lawyer to interview Mehfooz llahi in jail. Smt. Nafisa Begum (WD-3) had stated that Mohd. Hafiz (PQ-2) had not got stitched any clothes from her. Shri Kashmiri Lal Juneja (DW-4), an Advocate of Tis Hazari Courts, Delhi, had stated that he had accompanied Shri D. R. Sud, Advocate, to Tihar Jail for interviewing Mehfooz Ilahi and that the Deputy Superintendent Jail had informed them that Mehfooz Ilahi was being made an approver in the case and, therefore, no interview could be allowed. Abdul Hakim (DW-5) had stated that Mehfooz Ilahi and he were residing in the same house and that he had allowed Mehfooz Alahi to use electricity from his portion. Smt. Khurshid Begum (DW-7 ). her brothers Noor Ahmad (DW-6) and Guizar Ahmad (DW-9) had stated that Smt. Khurshid Begum, Mehfooz llahi and their children had come to Meerut on the 4th January and had remained there upto the 12th January 1968, Constable Des Raj (DW-10) had produced Roznamcha of 13th and 15th January 1968, of Police Station, Darya Ganj. ( 14 ) BABU appellant had denied all the allegations made against him. He had denied that he knew Azizul Rehman (Public Witness -1) or his daughter, Saira. He had further denied that he had taken Saira to the house of Mehfooz llahi or had committed rape upon her or had murdered her. He had also denied that he had made any disclosure statement to the police or had recovered the canister (Ex. P-15 ). or the coat (Ex. P-3 ). Babu had also denied that he was wearing the clothes (Exs. P-13 and P-14) at the time of his arrest or that those clothes belonged to him. Babu did not lead any defence evidence. ( 15 ) THE learned Additional Sessions Judge, who had tried the case against the appellants, held that the recovery of the head of Saira from the municinal drain established that Saira had been murdered. The learned Additional Sessions Judge did not believe the evidence of Mohd. Hafiz (Public Witness -2) that he had seen Saira with Babu on 9-1-1968, being taken to the house of Mehfooz Ilahi. The learned Additional Sessions Judge did not believe the evidence of Mohd. Hafiz (Public Witness -2) that he had seen Saira with Babu on 9-1-1968, being taken to the house of Mehfooz Ilahi. The learned Additional Sessions Judge also did not believe the prosecution case that Mehfooz Ilahi was putting on the clothes, (Exs. P-6 and P-7) and Babu was putting on clothes (Exs. P-13 A and P-14) at the time of arrest. He also rejected the prosecution case that the torso recovered from the moat of the Red Fort was that of Saira. He did not accept the prosecution case that Mehfooz Ilahi had recovered the gunny bag (Ex. P-22) or that Babu had recovered the canister (Ex. P-15 ). The learned Additional Sessions Judge also held that the mere recovery of the Khukri (Ex. P-8) from the house of Mehfooz Ilahi did not connect him with the crime. The learned Additional Sessions Judge was of the view that the recovery of the blood stained earth and the blood stained pieces of a wooden plank and a bench on the 15th January from the house of Mehfooz Ilahi was of a very doubtful nature. It was also held that the prosecution had not brought out any plausible motive, which could induce the two appellants to commit murder of Saira. It was observed by the learned Additional Sessions Judge, that Saira was of too tender an age to satisfy the sexual lust of Babu and that the dispute about the misuser of the demised premises had ended when Mehfooz Ilahi had given up Tandoor business there and there was no evidence that Mehfooz llahi had displayed any grudge or resentment against Azizul Rehman. The learned Additional Sessions Judge was of the view that the confessional statement (Ex. P-21/g) had been made by Mehfooz Ilahi at a time when the matter of making him an approver had considerably advanced and that the confession had been made in an atmosphere which was not completely free from police influence. The learned Additional Sessions Judge was, further, of the view that in the circumstances of the case, it was desirable that Mehfooz Ilahi should have been committed to judicial lock-up for 24 hours for calm reflection before recording the confessional statement. The learned Additional Sessions Judge was, further, of the view that in the circumstances of the case, it was desirable that Mehfooz Ilahi should have been committed to judicial lock-up for 24 hours for calm reflection before recording the confessional statement. In spite of the afore- said views the learned Additional Sessions Judge accepted the confessional statement and acted upon it as, in his opinion, it was corroborated by the discovery of clothes (Ex. P-1 to Ex. P-3) and the recovery of the blood stained pieces of the wooden plank and the bench which in the earlier part of his judgment, he had characterized as of doubtful nature. The learned Additional Sessions Judge did not consider the question as to what extent the confession, made by Mehfooz Ilahi, which had been retracted by him, could be used as evidence against Babu, a co-accused. Acting on the confessional statement (Ex. Public Witness -21/g) and the discoveries of various articles, the learned Additional Sessions Judge convicted both the appellants under Section 302/34, Indian Penal Code, and sentenced each of them to imprisonment for life. He also convicted them under Sections 201/34, Indian Penal Code, and sentenced each of them to two years rigorous imprisonment. Babu appellant was also convicted under Section 366, Indian Penal Code, and sentenced to three years rigorous imprisonment. The sentences of imprisonment were made to run concurrently. Babu appellant was acquitted of the charge under Section 376, Indian Penal Code. ( 16 ) MEHFOOZ Ilahi and Babu have, by separate appeals, challenged their conviction. ( 17 ) IT admits of no doubt that Saira had been murdered between the 9th and the 13th January 1968. Smt. Mumtazi (Public Witness -5) had stated that Saira had left the house at about 4. 00 or 4. 30 P. M. on the 9th January to witness the Tamasha of a tame bear being displayed in the street and that she was not seen alive after that. Kafayat Ali (Public Witness -3) and Thakur Dass (Public Witness -4) had stated that they were cleaning the municipal drain near the Municipal Corporation Office on the 13th January at about 10. 00 A. M. and that they had come across a human head. The witnesses had further stated that the police officials had come there and they had reported about the human head of them. 00 A. M. and that they had come across a human head. The witnesses had further stated that the police officials had come there and they had reported about the human head of them. A. S. I. Ram Prakash (Public Witness -20) had stated that on the 13th January 1968 he was on patrol duty on the Jawahar Lal Nehru Marg at about 11. 00 A. M. and that when he had reached near the Municipal Corporation Office, his attention was diverted towards the municipal drain where there was assemblage of some people. The witness had gone there. Kifayat Ali (Public Witness -3) had reported to the witness that a human head had been found in the drain. D. S. P. Rattan Singh (Public Witness -34) had also come there. On hearing that a human head had been found in the municipal drain. Smt. Mumtazi had gone to the spot at about 3. 00 P. M. She had identified the human head to be that of her daughter, Saira. Azizul R. ehman (Public Witness -1) had also come at the spot and he had identified the head to be that of Saira. The photographs (Exs. PW-1/a to Public Witness -1,/c) of the head. found in the municipal drain. show that the head was identifiable. ( 18 ) DR. S. S. Kaushal (Public Witness -11) had conducted the postmortem examination on the human head found in the municipal drain. He had appeared as a witness in the committing Court. His statement (Ex. Public Witness -11/a) made in the committing Court, was transferred to the record of the Court of the Additional Sessions Judge. Dr. S. S. Kaushal had stated that he had conducted postmortem examination on the head of a female, aged 10 or 11 years, at 9. 00 A. M. on the 14th January and had found that the neck had been cut through and through and separated clearly from the rest of the body. There was an incised wound with laceration of subcutaneous tissues and bruising at the edges. Larnyx and trachea had been cut through a. nd. through. The doctor was of the opinion that death possibly was caused by cutting of the neck with a heavy cutting sharp edged weapon. There was an incised wound with laceration of subcutaneous tissues and bruising at the edges. Larnyx and trachea had been cut through a. nd. through. The doctor was of the opinion that death possibly was caused by cutting of the neck with a heavy cutting sharp edged weapon. ( 19 ) LAL Bahadur (Public Witness -16), Gopalji Srivastava (Public Witness -17) and Hira Lal (Public Witness -28), train examiners, at Allahabad, had, on 11-1-1968, at about 6. 20 A. M. , found a gunny bag, containing some parts of a child s body in a coach of the train No. 376 which had arrived from Delhi and had been shifted to the washing line tor cleaning. The aforesaid train examiners had reported the matter to P. M. Sharma (Public Witness -27), Assistant Station Master. By his memo. Ex. Public Witness -24/a, P. M. Sharma, had informed the railway police about the discovery of the gunny bag. H. C. Abdul Khalil (Public Witness -29), who had received the memo. Ex. Public Witness - 24/a, had registered a case. S. H. O. Ram Rachpal Singh had gone to the station and had taken into possession the gunny bag which contained the legs and arms of a child. Dr. B. N. Srivastava (Public Witness -26) had conducted postmortem examination on the legs and arms (legs below patella and arms from Scapula ). The doctor had found incised wounds on the legs and the arms. He was of the opinion that the injuries were ante mortem and that the age of the body to which the legs and the arms belonged, was between 10 and 12 years. It cannot be positively held, on the prosecution evidence that the legs and aims, recovered from the train at Allahabad were those of Saira. They may or they may not be. Nobody had identified them to be those of Saira. If the confessional statement (Ex. Public Witness -21/g) be excluded from consideration (and it must be as will be shown later on) there is no evidence that the legs and arms of Saira were placed in the coach of a train going to Allahabad. ( 20 ) A human torso was recovered from the moat of the Red Fort by Tirath Ram (Public Witness -15 ). S. H. O. Police Station, Kotwali. A gunny bag was also recovered. ( 20 ) A human torso was recovered from the moat of the Red Fort by Tirath Ram (Public Witness -15 ). S. H. O. Police Station, Kotwali. A gunny bag was also recovered. Tirath Ram had stated that he had sent the torso for postmortem examination but the report of the postmortem examination was not produced by the prosecution. Torso was not identified by any person to be that of Saira. In fact, there is no evidence that the torso, recovered was of a child. ( 21 ) THE recovery of the head of Saira from the municipal drain and the evidence of Dr. S. S. Kaushal (Public Witness -11), who had conducted postmortem examination, clearly establish that Saira had been murdered. ( 22 ) THE next question, which requires determination, is whether the prosecution has, by reliable and satisfactory evidence, proved the prosecution for proving the guilt of the appellants, is the that Saira had been murdered by Mehfooz Alahi and Babu appellants. The first and foremost piece of evidence, relied upon by confessional statement (Ex. Public Witness 21/g ). The confessional statement was recorded by Shri M. M. Oberoi (Public Witness -21) Magistrate First Class. Shri M. M. Oberoi stated that the application (Ex. Public Witness -21/a) was presented before him for recording the confessional statement of Mehfooz Ilahi. The witness further stated that Mehfooz Ilahi had been produced before him at 11. 00 A. M. on the 27th January and that handcuffs were removed and he was allowed to compose himself in the retiring-room. According to the witness, no police official was present in the retiring- room nor could any one communicate with Mehfooz Ilahi. ( 23 ) MEHFOOZ Ilahi was given time for reflection upto 2. 30 P. M. At 2. 30 P. M. , the witness had put questions, detailed in Ex. Public Witness 21/d to Mehfooz llahi. The witness had stated that he had A satisfied himself that Mehfooz llahi was making the statement voluntarily. Thereafter, the confessional statement (Ex. Public Witness 21/g), was recorded by the witness. ( 24 ) THE confessional statement (Ex. Public Witness -21/g) is a detailed one. Its translation in English covers eight typed pages. The confessional statement narrates how Babu appellant had brought Saira to Mehfooz Ilahi s house on 9-1-1968 at about 6. Thereafter, the confessional statement (Ex. Public Witness 21/g), was recorded by the witness. ( 24 ) THE confessional statement (Ex. Public Witness -21/g) is a detailed one. Its translation in English covers eight typed pages. The confessional statement narrates how Babu appellant had brought Saira to Mehfooz Ilahi s house on 9-1-1968 at about 6. 00 P. M. on the pretext that her lost chappal would be found there. According to the confessional statement Babu had told Mehfooz llahi that he had brought the girl with an intention to commit rape on her. Mehfooz llahi had dissuaded him from doing so and urged him to let the girl go. Babu had reminded Mehfooz llahi of the debt of gratitude he owned to him. Babu had told Mehfooz llahi that he had loved the elder sister of the girl but that she had run away with some other person and that he would console himself by committing rape on the girl. The confessional statement further, states that Babu had asked Mehfooz llahi to commit rape on the girl but Mehfooz llahi had refused. Babu had then laid the girl on the ground and had asked Mehfooz llahi to keep the mouth of the girl shut by putting his hand on it. Mehfooz Ilahi, had accordingly shut the mouth of the girl. A Khukri was lying in the roof. Babu had taken that Khukri and had cut the frock and tying string of the girl with the Khukri. Babu had then committed rape upon the girl. The girl was in great agony and had become unconscious. According to the confessional statement, Mehfooz llahi had pushed back Babu with both his hands. Babu had then chopped off the head and the arms and legs of the girl. The chopped off limbs were put in gunny bags taken from the house of Mehfooz llahi. The gunny bag containing the head was put in. a canister and thrown in the municipal drain by Babu. The legs and arms, wrapped in a gunny bag were placed in a coach of a train standing at the Delhi Railway Station. The torso wrapped in a gunny bag was thrown, in the moat of Red Fort by Mehfooz Ilahi. ( 25 ) AFTER the confessional statement (Ex. Public Witness -21/g) had been recorded, Shri M. M. Oberoi, had appended the certificate (Ex. The torso wrapped in a gunny bag was thrown, in the moat of Red Fort by Mehfooz Ilahi. ( 25 ) AFTER the confessional statement (Ex. Public Witness -21/g) had been recorded, Shri M. M. Oberoi, had appended the certificate (Ex. Public Witness -21/l) staling that he had explained to Mehfooz Ilahi that he was not bound to make the confession and that if he did so, the confession may be used as evidence against him, etc. . etc. That certificate was signed by Shri M. M. Oberoi. After that, the note (Ex. Public Witness -21/m) was made. The note stated that Mehfooz Ilahi wanted to make a further statement. The statement (Ex. Public Witness -21/n) was then taken down. In that statement, Mehfooz Iahi had stated that he had buried the clothes of the girl, Saira, in the heap of earth lying in front of the Nehru Samadhi. This statement was in conflict with his earlier state- ment, made in the confessional statement (Ex. Public Witness -21/g) that he had hidden the clothes removed from the person of Saira in the courtyard. ( 26 ) IT was contended, by the learned counsel for the appellants, that the circumstances brought on the record, show that the confessional statement (Ex. Public Witness -21/g) was not made voluntarily by Mehfooz Ilahi but was made as a result of beating administered to, and pressure brought upon him, by the police. The learned counsel, further, contended that the circumstances further show that an inducement had been held to Mehfooz Ilahi that if he confessed he would be made an approver and would not be prosecuted. The learned counsel for the State controverted the suggestion, made on behalf of the appellants that the confessional statement was the result of beating and pressure and inducement. The learned counsel contended that the details of events given in the confessional statement could not have been possibly known to the police and, therefore, could not have been tutored to Mehfooz Ilahi. The wealth of details, in the confessional statement, the learned counsel argued was a guarantee of the confessional statement being voluntary. ( 27 ) IN our opinion, the circumstances of the case indicate that the confessional statement had not been made voluntarily by Mehfooz llahi. The wealth of details, in the confessional statement, the learned counsel argued was a guarantee of the confessional statement being voluntary. ( 27 ) IN our opinion, the circumstances of the case indicate that the confessional statement had not been made voluntarily by Mehfooz llahi. The first circumstance which throw a doubt on the voluntariness of the confessional statement is that the Magistrate, recording the confessional statement did not exercise that care and circumspection which was expected of him in satisfying himself that Mehfooz Ilahi was making the confession voluntarily. Mehfooz Ilahi had stated that he had been called by the police on the 12th January, interrogated and given beating and that again he was called on the 13th January and given beating. The prosecution case is that Mehfooz Ilahi was interrogated, for the first time on the 15th January on which date he was arrested. Azizul Rehman (Public Witness -1) had admitted that he had seen Mehfooz ( 28 ) ILAHI with the police on the 13th January. The news report, (Ex. D-1) in the Daily Pratap. dated the 15th January stated that two persons had been taken into custody in connection with the murder of the girl. It was also stated that arms and legs of the girl had been recovered at Allahabad and one Khukri had been recovered from the house of one of the persons apprehended. The new item was dated 14th January. Khurshid Begum (PW-7), wife of Mehfooz Iahi, had stated that Mehfooz llahi had been called by the police on the 12th January. The house of Mehfooz Iahi had been searched on the 13th January. Mehfooz Ilahi must have been interrogated on that date if not earlier. The statement of Mehfooz llahi that he had been called by the police on the 12th January and interrogated does not appear to be incorrect. Mehfooz llahi was under interrogation from 12th to the 15th January on which date he was formally arrested. The confessional statement was recorded on the 27th January. Mehfooz llahi had been in the custody of police almost for two weeks till that date. Keeping this fact in view, it was incumbent on the Magistrate to send Mehfooz Ilahi to Judicial lock up for at least one day for calm reflection A whether he should make the confession or not. In Swaran Singh Rattan Singh v. State of Punjab (A. 1. Keeping this fact in view, it was incumbent on the Magistrate to send Mehfooz Ilahi to Judicial lock up for at least one day for calm reflection A whether he should make the confession or not. In Swaran Singh Rattan Singh v. State of Punjab (A. 1. R. 1957 Supreme Court 637) , (1) it was laid down that though no hard and fast rule as to the time which should be allowed to an accused person in a given case before recording his confession under Section 164, Criminal Procedure Code, be laid down, however speaking generally it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. The Magistrate, in the present case, had admitted that he had not sent Mehfooz Ilahi, who had been produced from police custody, to the judicial lock up before recording the confessional statement. The Magistrate had given only about three hours to Mehfooz Ilahi for reflection. The C Magistrate had put only routine questions to Mehfooz llahi before recording his confession. He should have put more searching questions in order to satisfy himself whether Mehfooz Ilahi was confessing voluntarily as the latter had been produced from police custody and not from judicial custody. The Magistrate had stated that he did not remember whether he had taken up n criminal cases or whether any police official had come in the Court-room when Mehfooz llahi was sitting in the retiring-room. The possibility that some police official might have come in the Court-room when Mehfooz Ilahi was sitting in the retiring-room. not be ruled out. The suspicion that some police official might have been present in the Court is confirmed by the note (Ex. Public Witness 21/m) and the subsequent statement (Ex. Public Witness -21/n), made by Mehfooz llahi. In the confessional statement (Ex. Public Witness -21/g), Mehfooz Tiahi had stated that the clothes, removed from the body of Saira had been hurried in the courtyard. This statement did not fit in with the prosecution case that the clothes (Ex. P-1 and Ex. P-2) had been concealed near Samadhi of Jawahar lal Nehru and the coat (Ex. P-3) near Maharaja Ranjit Singh Road. After the statement had been closed and the Magistrate had appended the certificate (Ex. Public Witness -21/l) the note (Ex. This statement did not fit in with the prosecution case that the clothes (Ex. P-1 and Ex. P-2) had been concealed near Samadhi of Jawahar lal Nehru and the coat (Ex. P-3) near Maharaja Ranjit Singh Road. After the statement had been closed and the Magistrate had appended the certificate (Ex. Public Witness -21/l) the note (Ex. Public Witness - 21/m) was made and the subsequent statement (Ex. Public Witness - 21/n) was recorded. According to Ex. Public Witness -21/n, Mehfooz llahi had stated that he had buried the clothes of Saira in a heap of Saira had been buried in the courtyard. This statement did viously failed to mention that fact. The clear inference is that after Mehfooz llahi had made the statement that the clothes had been buried in the courtyard which did not suit the prosecution. somebody most probably a police official connected with the case, had asked him to make the statement contained in Ex. Public Witness - 21/n. It is clear that police influence was operating on the mind of Mehfooz Ilahi at the time of making the confessional statement. ( 29 ) THE Magistrate had admitted that he had not assured Mehfooz Ilahi that after the recording of the confessional statement, he would not be sent to the judicial lock up. It is true that he was, after the recording of the confessional statement was sent to A judicial lock up. But this fact did not cure the infirmity, caused in the recording of the confession on account of the failure of the Magistrate to assure Mehfooz Ilahi that he would be sent to judicial lock up and not to police lock up. ( 30 ) THE second circumstance, against the voluntariness of the confessional statement is that it appears to have been made under pressure and inducement. It is very difficult for an accused in police custody to prove that he had been beaten by the police for the purpose of extorting a confession. In the present case, Mehfooz llahi had stated in the confessional statement, itself that he was given beating. A case under the Arms Act had been registered against the wife of Mehfooz llahi and was pending at the time of making the confession. In the present case, Mehfooz llahi had stated in the confessional statement, itself that he was given beating. A case under the Arms Act had been registered against the wife of Mehfooz llahi and was pending at the time of making the confession. The case related to the Khukri, alleged to have been recovered from the house of Mehfooz llahi on the 13th January, It appealed, that the object of the institution of the case was to bring pressure on Mehfooz Ilahi. ( 31 ) MEHFOOZ Ilahi was under interrogation since the 12th January. He had been formally arrested on the 15th. He had made discoveries of the clothes (Ex. P-1 and Ex. P-2) and the gunny bag (Ex. P-22) on the very day of his arrest. His house was searched for the second time on the 15th and blood stained articles were recovered. Nothing was recovered at his instance after the 15th. The prosecution did not furnish any explanation or justification for keeping Mehfooz Ilahi in police custody from the 16th to the 27th January. The inference can legitimately be drawn that he was being pressurized to make a confession. ( 32 ) THE inducement, held out to Mehfooz Ilahi was that he would be made an approver and the case would be dropped against him if he were to confess. The prosecution had produced an application (Ex. Public Witness -21/r) purporting to havebeen made by Mehfooz Ilahi, requesting that he may be declared as an approver in the case. Mehfooz Ilahi denied that he had made any such application. The writer of the application has not been produced. The application contains the number of the case registered against the appellants. Mehfooz llahi could not have possibly known the number of the case. It is clear that the application must have been made by the police. The application was made on 5th February, 1968. D. S. P. Rattan Singh had made the report (Ex. D,a.) on the application. After giving the facts of the case. D. S. P. Rattan Singh had stated that Babu accused was a man of desparate nature and a habitual offender and that Mehfooz Ilahi accused who was not a previous convict willingly wanted to reveal the true facts of the case. The Public Prosecutor had given his opinion on the application (Ex. Public Witness -21/r) and the report (Ex. D. A. ). The Public Prosecutor had given his opinion on the application (Ex. Public Witness -21/r) and the report (Ex. D. A. ). The Public Prosecutor had opined that Mehfooz llahi may be made an approver as otherwise the case was a very weak one. It is thus clear that nearabout the time Mehfooz Ilahi had made the confessional statement (Ex. PW-21/g) the police had decided to make him an approver. This stands confirmed from the evidence of Shri Kashmiri Lal Juneja (DW-4) Advocate, Tis Hazari Courts. Shri Juneja had stated that on the 8th February, 1968, he had accompanied Shri D. R. Sud Advocate to Tihar Central Jail for interviewing Mehfooz llahi. Shri D. R. Sud had presented an application for interview at the jail. The Deputy Superintendent of Jail had informed them that Mehfooz llahi was being made an approver in the case and, therefore, no interview could be allowed with him. There is absolutely no reason to disbelieve the statement of Shri Kashmiri Lal Juneja that he and Shri D. R. Sud Advocate had visited the jail on 8th February and that the Deputy Superintendent of Jail had told them that Mehfooz Ilahi was being made an approver in the case. Smt. Khurshid Begum (DW-7), wife of Mehfooz Ilahi, had made the application (Ex. D. B.) for interview with her husband. In that application, she had stated that the lawyer engaged by her had visited the jail on 8th February 1968 for interviewing Mehfooz llahi but the interview was refused. The only conclusion from the application (Ex. Public Witness - 2 I/r) th. s reports, made thereon by D. S. P. Rattan Singh (Public Witness - D 34) and the Public Prosecutor, and the evidence of Shri Kashmiri Lal Juneja is that the police had held out an inducement to Mehfooz Ilahi that he would be made an approver in the case and the charge against him would be dropped. ( 33 ) FOR the reasons, stated above, the confessional statement (Ex. Public Witness -21/g) is to be held not to have been made voluntarily and, therefore, inadmissible in evidence. The mere fact that the confessional statement contains details which could not have been invented by the police is not a guarantee of its voluntariness, vide Muthaswami v. Slate of Madras (A. 1. R. 1954 Supreme Court 4 ). (2 ). Public Witness -21/g) is to be held not to have been made voluntarily and, therefore, inadmissible in evidence. The mere fact that the confessional statement contains details which could not have been invented by the police is not a guarantee of its voluntariness, vide Muthaswami v. Slate of Madras (A. 1. R. 1954 Supreme Court 4 ). (2 ). ( 34 ) THOUGH the learned Additional Sessions Judge did not specifically hold that the confessional statement (Ex. Public Witness -21/g) was not voluntarily made, yet the observations, made by him, at various places in his judgment, indicate that he had a suspicion that the confessional statement was not voluntary. The learned Additional Sessions Judge had observed in paragraph 51 of the judgment that the matter of making Mehfooz Ilahi an approver had considerably advanced. While discussing the nature of the confession in paragraph 54 of the judgment, the learned Additional Sessions Judge had pointed out that the Magistrate had failed to apprise Mehfooz Ilahi that after the recording of his statement, he would not be handed over to the police but would be sent to judicial custody. This according to the learned Additional Sessions Judge was highly desirable to remove police fear from the mind of Mehfooz Ilahi. The learned Additional Sessions Judge had, further, observed that a completely free atmosphere for the recording of the confession was lacking and that the Magistrate should have sent Mehfooz Ilahi to judicial lock up for 24 hours to make up his mind whether he should A make a confession or not. ( 35 ) IN spite of the above observations, the learned Additional Sessions Judge had accepted the confessional statement and used it against the appellants, as in his opinion, the confessional statement was corroborated by other evidence. This was a wrong approach on the part of the learned Additional Sessions Judge. Once it appears to the Court that a confessional statement is not voluntary, it is to be excluded from consideration, no matter how true it may be. It was held in Aher Raja Khima v. State of Saurashtra (A. I. R. 1956 Supreme Court 217 that :- "a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and while the Court is considering this question the question whether it is true or false does not arise. It was held in Aher Raja Khima v. State of Saurashtra (A. I. R. 1956 Supreme Court 217 that :- "a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and while the Court is considering this question the question whether it is true or false does not arise. It is abhorrent to notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily. " ( 36 ) THE learned Additional Sessions Judge, therefore, erred in using the confession, against the appellants which had not been made voluntarily. It could not be used against Mehfooz llahi muchless against Babu, a co-accused. ( 37 ) THE next piece of evidence, relied upon by the prosecution, consists of the various recoveries and discoveries. The case for the prosecution is that the house of Mehfooz llahi had been searched on the 13th January and Khukri (Ex. P-8) was recovered from a trunk lying therein by S. I. Tara Chand (Public Witness -32 ). The other two witnesses to this recovery were Mohd. Khalil (PW-8) and Prakash Chand (Public Witness -13 ). Prakash Chand was the son of the owner of the building of Agra Hotel, Delhi. Prakash Chand had stated that he was coming from Jama Masjid side when he had seen S. I. Tara Chand. The witness had greeted Tara Chand who had asked the witness to accompany him. According to the witness, the police party had gone to a house in Churiwalan and had searched that house. From one of the trunks, one Khukri with a sheath was recovered. The Khukri (Ex. P-8) was shown to the witness in Court. He stated that it was not the same which had been recovered. At that stage, the prosecution, on its request, was given permission by the learned Additional Sessions Judge to cross-examine the witness. The witness then admitted that Khukri (Ex. P-8), was the same which had been recovered from the house. Prakash Chand, who had made contradictory statements in examination-in-chief and cross- examination cannot be regarded as a trustworthy witness. Mohd. Khalil (Public Witness -8) was the wife s sister s son of Azizul Rehman (PW-1 ). Mohd.-Khalil had been associated with almost all the important stages of the investigation. Mohd. Prakash Chand, who had made contradictory statements in examination-in-chief and cross- examination cannot be regarded as a trustworthy witness. Mohd. Khalil (Public Witness -8) was the wife s sister s son of Azizul Rehman (PW-1 ). Mohd.-Khalil had been associated with almost all the important stages of the investigation. Mohd. Khalil had stated that on the 13th January atabout 4. 00 or 5. 00 P. M. a police constable had come to his house and had taken him to the house of Mehfooz Ilahi. Later on, he contradicted this statement by deposing that he was at the house of Saira s parents when a police constable had come there and had asked that some male member of the family should accompany him to Mehfooz Ilahi s house. The witness had accompanied the constable. According to the prosecution witnesses Nanak Singh (Public Witness -6) and Surjit Singh (PW-18), Mohd. Khalil was present on the 15th January when Mehfooz llahi had discovered the clothes, (Exs. P-1 and P-2 ). In fact, according to these witnesses, and also according to D. S. P. Rattan Singh (Public Witness -34), the seal with which the packet, containing the clothes, had been sealed, was given to Mohd. Khalil (PW-8 ). But Mohd. Khalil denied that he was present at the time of the recovery of the clothes which had been recovered at about 2. 30 P. M. He had stated that he had not met the police before 5. 00 P. M. on the 15th. The version, given by Mohd. Khalil, about the arrest of Babu appellant on the 15th January was contradictory to the version given by D. S. P. Rattan Singh. D. S. P. Rattan Singh had stated that he had directed S. I. Avtar Singh to be on the look-out for Babu appellant and that he was going towards Delite Cinema on the 15th when S. I. Avtar Singh had produced Babu appellant before him. According to Mohd. Khalil (Public Witness -8), Mehfooz llahi had told the police that Babu would be at Delite Cinema and the police had gome there. Babu was standing outside the Cinema. According to the witness. Babu was looking in another direction and the police had gone from behind and had apprehended Babu. Mohd. According to Mohd. Khalil (Public Witness -8), Mehfooz llahi had told the police that Babu would be at Delite Cinema and the police had gome there. Babu was standing outside the Cinema. According to the witness. Babu was looking in another direction and the police had gone from behind and had apprehended Babu. Mohd. Khalil did not mention that Babu had already been apprehended by some police official and had been produced by him before D. S. P. Rattan Singh. Mohd. Khalil was an interested witness and had made contradictory statements. His evidence is not reliable. ( 38 ) THE evidence of the recovery of the Khukri is not worthy of reliance. The recovery becomes highly suspicious. No blood stains were discovered on the Khukri. There is no evidence to connect the Khukri with Mehfooz llahi or with the murder of- Saira. ( 39 ) CLOTHES (Exs. P-6 and P-7) were alleged to have been recovered from the person of Mehfooz llahi at the time of his arrest on the 15th January and clothes (Exs. P-13 and P-14) were alleged to have been recovered from the person of Babu. The clothes were found to be stained with human blood. As has been rightly pointed out by the learned Additional Sessions Judge it appear most unusual that the appellant who were alleged to have committed a brutal murder should be wearing blood stained clothes about six days after the murder. Such a conduct would hardly seem in consonance with the cunning manner in which the evidence about the murder was alleged to have been screened. Babu had denied that the clothes (Exs. P-13 and P-14) belonged to him. Mehfooz. Ilahi admitted that the clothes (Exs. P-6 and P-7) belonged to him but he had explained that the blood stains were due to the bleeding of his nose. It may be pointed out that Mehfooz llahi is alleged to have been arrested at the house of Shri Mir Mushtaq, to whom he is alleged to have confessed his guilt. The prosecution has not produced Shri Mir Mushtaq who was a material witness. He could have at least given the circumstances in which Mehfooz llahi had been arrested. The non-production of Shri Mir Mushtaq raises an adverse inference against the case of the prosecution. The prosecution has not produced Shri Mir Mushtaq who was a material witness. He could have at least given the circumstances in which Mehfooz llahi had been arrested. The non-production of Shri Mir Mushtaq raises an adverse inference against the case of the prosecution. ( 40 ) IT is the case of the prosecution that after his arrest Mehfooz llahi had made the disclosure statement (Ex, Public Witness -6/b) in the presence of Nanak Singh (Public Witness -6) and Surjit Singh (Public Witness -18 ). That statement reads :- "i along with Babu accused murdered the girl Saira Begum. I have buried the clothes that is one silken frock of green colour with hooks on the back portion and the front poition whereof is cut with the Khukri and one silken Salwar of green colour, the tying string whereof (made of wick) is also got with the Khukri removed from her person under the heap of earth by the side of the patri of the road in front of Nehru Samadhi towards the side of Ghata Masjit and I can get the same recovered after going there. " ( 41 ) THE above statement, on the face of it, appears to be unnatural. It is difficult to believe that Mehfooz llahi could have given the description of the frock to the effect that it had hooks on the back portion and that the front portion had been cut with the Khukri or the description of the tying string of the salwar as made of wick. Neither Nanak Singh (Public Witness -6) nor Surjit Singh (PW-18) gave the version of the statement alleged to have been made by Mehfooz Ilahi as contained in Ex. Public Witness -6/b. Nanak Singh (Public Witness -6) had stated that Mehfooz Ilahi had said that he had committed the murder and would recover clothes. Surjit Singh (Public Witness -18) had stated that Mehfooz llahi had said that he would get the clothes of the girl recovered. Nanak Singh and Surjit Singh had stated that they had gone to the police station at about 2. 00 or 2. 30 P. M. and that the clothes (Exs. P-6 and P-7) of Mehfooz llahi were taken into possession and the disclosure statement "ex. Public Witness -6/b) had been made after 2. Nanak Singh and Surjit Singh had stated that they had gone to the police station at about 2. 00 or 2. 30 P. M. and that the clothes (Exs. P-6 and P-7) of Mehfooz llahi were taken into possession and the disclosure statement "ex. Public Witness -6/b) had been made after 2. 30 P. M. D. S. P. Rattan Singh (Public Witness -34) contradicted the above statement by deposing that Nanak Singh and Surjit Singh had come to the police station at about 11. 00 A. M. and that the clothes (Exs. P-6 and P-7) had been taken into possession and the disclosure- statement recorded before 2. 30 P. M. ( 42 ) THE statement that he along with Babu accused had murdered the girl Saira Begum in Ex. Public Witness -6/b, does not distinctly relate to the discovery of the clothes and will be inadmissible in evidence. The learned counsel for the State contended that the whole of the statement (Ex. Public Witness -6/b), was admissible in evidence. He placed reliance on Harnam Singh v. Emperor (A. I. R. 1928 Lahore 308) (4 ). In that case the disclosure statement that "i have sold part of my share of the Kotli Moman dacoity to Wadhawa Singh goldsmith of Kalsian Khurd" was held to be admissible in evidence. The authority, relied upon by the learned counsel for the State was over ruled in Sukhan v. Emperor (A. I. R. 1929 Lahore 344) F. B. In the Full Bench case, the disclosure statement was that "i had removed the karas, had pushed the boy into the well andhad pledged the karas with Allah Din". It was held by the Full Bench that only the statement that the accused had pledged the karas with Allah Din was admissible in evidence and that the rest of the incriminating statement could not be received in evidence. The Full Bench decision was approved by their Lordships of the Privy Council in Pulukuri Kottaya and others v. Emperor (A. I. R. 1947 P. C. (67) ( 43 ) THE discussion about the admissibility of the statement (Ex. Public Witness -6/b) is only academic as the whole of the statement appears to be unnatural and suspicious. ( 44 ) MEHFOOZ Ilahi is alleged to have recovered the clothes (Exs. P-1and P-2) of Saira from a heap of earth near Ghata Masjit. Public Witness -6/b) is only academic as the whole of the statement appears to be unnatural and suspicious. ( 44 ) MEHFOOZ Ilahi is alleged to have recovered the clothes (Exs. P-1and P-2) of Saira from a heap of earth near Ghata Masjit. The witnesses to the recovery were Nanak Singh (Public Witness -6), Surjit Singh (Public Witness -18) and Brij Lal (Public Witness -19 ). Mehfooz llahi is also alleged to have recovered a gunny bag from the moat of the Red Fort on the 15th January. The witnesses to this recovery were also Nanak Singh (Public Witness -6), Surjit Singh (Public Witness -18) and Brij Lal (PW-19 ). A gunny bag had already been recovered from the moat by S. H. O. Tirath Ram (Public Witness -15) on 12th January, on which date the torso had been recovered. Tirath Ram had stated that he had thoroughly searched the moat with the help of dogs and police men on the 12th. It is difficult to believe that the thorough search carried out would not have revealed the gunny bag if it was there on the 12th. The recovery of the gunny bag was a faked one. ( 45 ) BABU appellant, who was arrested on the 15th January, was alleged to have made a disclosure statement and discovered the canister, (Ex. P-l 5), from th. e municipal drain. The witnesses to the disclosure statement and the recovery of the canister were Brij Lal (Public Witness -19) and Manohar Shah (Public Witness -22 ). According to Brij Lal (Public Witness -19), Babu had discovered the canister (Ex. P-l 5) only. But Manohar Shah (Public Witness -22) had, stated that a head was recovered on the one side of the road near the Municipal Corporation Office and a canister was recovered from the other side. He had further stated that two separate recovery memos. had been prepared with respect to the head and the canister. The head already been recovered on the 13th January. It appears that Manohar Shah was not present at the time of the recoveries, if any. The canister (Ex. P-15) was not found to be stained with human blood. It is not connected in any way with the crime. had been prepared with respect to the head and the canister. The head already been recovered on the 13th January. It appears that Manohar Shah was not present at the time of the recoveries, if any. The canister (Ex. P-15) was not found to be stained with human blood. It is not connected in any way with the crime. ( 46 ) IN the evening of the 15th, the police had again searched the house of Mehfooz Ilahi and was alleged to have collected blood stained earth from the oor of a room and blood stained pieces from a wooden plank and a bench. The police had already searched the house of Mehfooz llahi on the 13th January. It appears strange that it did not notice any blood stains on the floor or on other articles on that date. It was urged on behalf of the prosecution that the search on the 13th had been carried out in the evening and as there was no electric light in the house of Mehfooz llahi and it has become dark, the search could not be continued and had to be stopped. It is to be pointed out that the search on the 15th was also effected in the evening and that electric light had been taken from the adjacent premises. This could have done on the 13th as well. Further, Abdul Hakim (DW-5) had stated that he had given temporary electric connection from his own premises to Mehfooz llahi. The house of Mehfooz Ilahi was thoroughly searched on the 13th as is apparent from the statement of Mohd. Khalil (Public Witness -8 ). Had there been blood stains on articles in the house, they would have been noticed on the 13th. It also appears improbable that Mehfooz llahi and his family members would have allowed the blood stains to remain upto the 15th when the house had already been searched on the 13th and there was strong suspicion against Mehfooz llahi. The recovery of the blood stained earth and blood stained wooden pieces appears to be a faked one. ( 47 ) BABU appellant is alleged to have made a disclosure statement (Ex. Public Witness -1/f) on 26th January 1968 to the effect that he would recover a coat. The coat was recovered from near the crossing of Maharaja Ranjit Singh Road with Jawahar Lal Nehru Marg. ( 47 ) BABU appellant is alleged to have made a disclosure statement (Ex. Public Witness -1/f) on 26th January 1968 to the effect that he would recover a coat. The coat was recovered from near the crossing of Maharaja Ranjit Singh Road with Jawahar Lal Nehru Marg. The disclosure statement and the recovery of the coat were made in strange circumstances. S. I. Ruchi Ram (Public Witness -33) who had recorded the statement (Ex. Public Witness -1/f) and had recovered the coat (Ex. P-3) stated that he had started interrogation of Babu at about 3. 45 P. M. and that he had taken Babu to. the rickshaw- stand so that he may point out or identify the rickshaw man in whose rickshaw the gunny bag containing the legs and arms had been carried to the station. According to Ruchi Ram, Babu had shown ignorance about any rickshaw man. It was at the rickshaw stand that Babu is alleged to have made the disclosure statement (Ex. Public Witness -1/f ). S. I. Ruchi Ram (Public Witness -33) did not get the statement attested by persons who were present at the rickshaw stand. He had summoned Mohd. Khalil (Public Witness -8) and Azizul Rehman (Public Witness -1) from their houses for that purpose. The recovery was made in the presence of Azizul Rehman (Public Witness -1), Mohd. Khalil (Public Witness -8) and Khazan Chand (Public Witness -9) ). The discoverey of the coat (Ex. P-3) is of a doubtful nature. ( 48 ) THE clothes (Exs. P-1 to P-3) had been recovered from places which were accessible to the public. Any body else might have hidden those clothes and the appellants might have somehow come to know about the clothes. The clothes (Exs. P-1 to P-3) do not connect the appellants with the murder of Saira, ( 49 ) THE only piece of evidence which remains to be dealt with is the statement of Mohd, Hafiz (Public Witness -2 ). This witness had stated that on 9-1-1968 at about 4. 00 or 5. 00 P. M. he had gone to the house of the widow of Latafat to get his clothes stitched and that he had seen Babu appellant taking Saira towards the house of Mehfooz Ilahi. In cross-examination, Mohd. Hafiz had admitted that he had known Saira s father, Azizul Rehman and Mohd. 00 or 5. 00 P. M. he had gone to the house of the widow of Latafat to get his clothes stitched and that he had seen Babu appellant taking Saira towards the house of Mehfooz Ilahi. In cross-examination, Mohd. Hafiz had admitted that he had known Saira s father, Azizul Rehman and Mohd. Khalil (Public Witness -8) and that about nine or ten days after he had seen Saira with Babu. he had learnt that Saira had been murdered, but that in spite of this he did not either inform Azizul Rehman or Mohd. Khalil that he had seen Saira with Babu. The statement of Mohd. Hafiz was recorded by the police on 18-2-1968-more than one month after the incident. Mohd. Hafiz could not tell the date on which his statement was recorded before the learned Additional Sessions Judge or in the committing Court, though he remembered the date. 9th January. Smt. Nafisa Begum (DW-3) had stated that she was the widow of Latafat. She denied that she had at any time stitched the clothes of Mohd. Hafiz (Public Witness -2 ). It is clear that Mohd. Hafiz was a got-up witness and his evidence is absolutely unreliable. ( 50 ) THE result of the above discussion is that there is no legal and reliable evidence on which the conviction of the appellants can be based. The learned Additional Sessions Judge erred in convicting the appellants.