Narayana Pai, J.- Shantappa Yemanappa Samagar of Kakkalmeli village of Bijapur District was tried before the learned Sessions Judge of Bijapur in Sessions Case No. 47 of 1957 on his file for offences under sections 366, 376, 302 and 201 of the Indian Penal Code. The learned Sessions Judge has found him guilty of all the offences. For each of the offences under sections 366 and 376 he has awarded a sentence of 3 years’ rigorous imprisonment, the two sentences to run concurrently; for the offence of murder under section 302 he has imposed the penalty of death, in view of which he has not awarded a separate sentence for the offence under section 201. The reference is by the learned Sessions Judge for confirmation of the sentence of death. The appeal is by the accused against his conviction and sentences. The case against the accused shortly is that on the 5th of April, 1957, at about 12 noon he by deceitful means induced Bhimava, a minor girl aged about 9 years, to go with him, took her to a field belonging to one Shalimia and there committed rape upon her and murdered her, and later took steps to cause disappearance of the evidence of these offences with a view to screen himself from legal punishment. Bhimava, who is said to have been murdered, is the daughter of Shekappa, the deceased son of P.W. 2 Shivamma. Shivamma is an old lady, 70 years of age. Living with her in her house were the said Bhimava as well as another son of hers called Hulakanti, who is P.W. 5. According to the evidence, Bhimava was a born idiot. Shivamma states that her son Hulakanti is also an idiot. He lives by begging. In a portion of the same house the accused and his father were staying by virtue of some understanding in connection with a loan of Rs. 400 said to have been advanced by accused’s father to Shivamma. P.W. 5 Hulakanti is said to have left for another village on Thursday, the 4th of April, 1957. On the morning of 5th April, Shivamma went out to work in the field of one Dundappa. 400 said to have been advanced by accused’s father to Shivamma. P.W. 5 Hulakanti is said to have left for another village on Thursday, the 4th of April, 1957. On the morning of 5th April, Shivamma went out to work in the field of one Dundappa. P.W. 3 Kolleppa, whose house is not far away from Shivamma’s, deposes that when at about noon he returned to his house for food he saw Bhimava and his son Tulajappa, P.W. 4, playing in front of his house. When he was taking his food, he says, he saw the accused come and call Bhima saying that her grandfather was picking groundnuts in his field, and thereupon taking hold of her hands took her away towards the ruins of an old fortress, described as Huda in the evidence. P.W. 4 is P.W. 3’s child, who was 3 years old at that time and 4 years when he gave evidence before the learned Sessions Judge. His evidence is to the same effect as that of his father P.W. 3. P.W. 2 Shivamma deposes that when she returned to her house sometime after 12 noon she did not find Bhimava at home. She had left two cakes of Jawar for the noon meal of Bhimava, out of which she found that one had been eaten and the other left untouched. Bhimava did not return for over an hour whereupon Shivamma started making enquiries of her neighbours including Kolleppa, P.W. 3. On hearing from Kolleppa that the accused was seen taking Bhimava away towards the Huda she returned home and asked the accused whether he had so taken her grand-daughter. The accused, she says, said that he had not seen her granddaughter’s face at all. Next day, i.e., Saturday the 6th of April, Shivamma went over to a village called Kule Kumatagi, where her daughter was living, to make enquiries. At that place she met her son Hulakanti who had come from another village called Kumasgi. Both the mother and son continued their search for 3 more days without any result. On Wednesday, the 10th Hulakanti, while returning home from a village called Jatnal, saw a dog biting bones in Shalimia’s field. He went over to the place and saw besides the bones a gagari (skirt) and Kulai (cap). He passed on this information to his mother. On Wednesday, the 10th Hulakanti, while returning home from a village called Jatnal, saw a dog biting bones in Shalimia’s field. He went over to the place and saw besides the bones a gagari (skirt) and Kulai (cap). He passed on this information to his mother. Both the mother and son went over again to the place pointed out by the son after which Shivamma is said to have gone to the Police Patil, P.W. 7 and made a complaint, Exhibit 10. In that complaint after mentioning the disappearance of her grand-daughter, the information given by P.W. 3, the reply of the accused to her enquiry and her subsequent search for the missing girl, the discovery of the bones, the gagari and the kulai, she charges the accused with having taken away her grand-daughter and murdered her. She asserts that the gagari and kulai are of her grand-daughter Bhimava. In her evidence also she deposed to the effect that the grand-daughter was wearing those items of clothing on the day of her disappearance. On the nth of April, the Police Patil, P.W. 7, got a panchanama prepared, recording the details discovered at the place where Hulakanti had seen the dog biting bones. Exhibit 15 is the Panchanama. P.W. 6 is one of the Panchayatdars who speaks to it. According to Exhibit 15 and the evidence of P.W. 6, the field of Shalimia is skirted on the north by the Somanal road. About 105 paces to the south of it a shallow pit was discovered in which was found a tuft of hair and some liquid cozing from the ground emitting bad smell. The tuft of hair and some earth from that area were attached. 28 paces to the south of the pit were discovered a skull, 30 other bones, a gagari and a kulai. These also were attached. 71 paces away from that place in the dried bed of a streamlet was discovered a place where were found some faecal matter and some blood-stained pebbles. 11 blood-stained pebbles were attached. In a supplementary Panchanama, Exhibit 16, it is recorded that the skull had a hole of the size of a rupee on its right-side and a crack about two inches below it. 11 blood-stained pebbles were attached. In a supplementary Panchanama, Exhibit 16, it is recorded that the skull had a hole of the size of a rupee on its right-side and a crack about two inches below it. Regarding the tuft of hair and the bones, which were sent over for opinion to P.W. 12, Professor of Forensic Medicine, Medical College, Mysore, the only definite opinion stated by him is that they were those of a human being and that from the state of dentition that human being must have been of 8 to 9 years of age. Although the Professor states that on looking at the bones he got the general impression that they might be of a female, he clearly states that he cannot give any definite opinion on that question. He saw and speaks to the bones having been broke 1 or gnawed post mortem. He is unable to discover any evidence of ante-mortem injuries. To a specific question in his cross-examination he states that it is possible to discover on the bones signs or evidence of ante-mortem injuries, which signs, however, may disappear by exposure or burial. In the case of the bones shown to him he could not discover any evidence of ante-mortem injuries. The kulai and the gagari as well as the earth attached from the pit and the stones attached from the streamlet were sent to the Chemical Examiner to the Government of Mysore. He discovered mammalian blood on the stones and the Kulai but the stains on the other two articles were so disintegrated that he could not give any opinion. The mammalian blood so discovered by the Chemical Examiner has been certified by the Serologist to the Government of India to be human blood. Pausing at this stage it has to be observed that the evidence so far considered is quite inconclusive. It has not been established that the bones are those of Bhimava, the only definite opinion being that they must be of a human being 8 to 9 years of age. Nobody was asked to state any opinion as to the approximate time at which the owner of the bones might have met with death. The only point of identification is what is spoken to by P.W. 2, viz, that the gagari and kulai undoubtedly belonged to her grand-daughter, who was wearing them at the time of her disappearance. Nobody was asked to state any opinion as to the approximate time at which the owner of the bones might have met with death. The only point of identification is what is spoken to by P.W. 2, viz, that the gagari and kulai undoubtedly belonged to her grand-daughter, who was wearing them at the time of her disappearance. It is, however, suggested to her in her cross-examination that such articles of clothing are generally worn by the children in the village. There is also evidence to show that close to the field of Shalimia there is a burial ground of Muslims and that clothes like these are sometimes discarded on the burial ground. Shivamma herself is an old women of 70 years of age. Hence there is force in the argument on behalf of the accused that the possibility of mistake has not been eliminated in this solitary point for identification. So far as the accused himself is concerned the only direct evidence is that of Kolleppa, P.W. 3, and his child P.W. 4 having seen him taking Bhimava away towards the Huda. The evidence of these two witnesses is attacked by the learned counsel for the accused on the ground of some enmity alleged against P.W. 3 and on the ground of immaturity and tender age of P.W. 4. We do not think that the suggestion of enmity is sufficient to furnish P.W. 3 with so strong a motive as to implicate the accused in no serious a crime as murder. After all, he has deposed to a simple fact of having seen the accused with the child Bhimava. The evidence of the child witness P. W. 4 does not add very much to that of his father. Even taking the evidence of these to be absolutely true in all respects, it does not take the case very far. The offence alleged against the accused in the nature of things must have occupied some considerable time. The alleged place of occurrence is an open field recently ploughed. The exact time when Shivamma met and questioned the accused is not stated in the evidence. No witness has spoken to having seen the accused anywhere near the filed of Shalimia or witnessed any part of the transaction in the course of which several acts constituting the offences are said to have been committed. The exact time when Shivamma met and questioned the accused is not stated in the evidence. No witness has spoken to having seen the accused anywhere near the filed of Shalimia or witnessed any part of the transaction in the course of which several acts constituting the offences are said to have been committed. The only ground for suspicion is the alleged reply of the accused to Shivamma’s enquiry to the effect that he had never seen the face of Bhimava that day. In ordinary circumstances even this should not be ground for such suspicion. The suspicions are aroused because of the opinion of all concerned that the skeleton discovered in Shalimia’s field is that of Bhimava which opinion, for reasons already stated, cannot be said to be absolutely well-founded or correct. The prosecution, however, seeks to establish the complicity of the accused by two circumstances. The first is certain discoveries said to have been made upon the information furnished by the accused. According to the evidence of the Investigating Officer, P.W. 10, the accused who was arrested at about 6-30 a.m. on the 13th of April expressed himself willing to make a statement within half an hour of his arrest, as a result of which he took the officer and the Panchas once again to Shalimia’s field and pointed out a spot where he had buried Bhimava’s body. The Panchanama with reference to this is Exhibit 17. P.W. 6 is one of the Panchas. He clearly deposes that the place pointed out by the accused was no other than the pit 105 paces to the south of Somanal road already seen by the Panchayatdars and described in the prior Panchanama Exhibit 15. The Panchanama Exhibit 17 also records the discovery of two bangles 20 paces away from this pit. P.W. 6, however, distinctly deposes that these brass bangles were discovered by the Panchayatdars themselves on a closer scrutiny of the area. It is clear, therefore, that nothing was discovered in consequence of any information given by the accused. The pit said to have been pointed out by him had already been seen by them and described in Exhibit 15. The bangles were discovered by the Panchayatdars themselves. Hence there is no statement by the accused which could be admitted under section 27 of the Indian Evidence Act. The pit said to have been pointed out by him had already been seen by them and described in Exhibit 15. The bangles were discovered by the Panchayatdars themselves. Hence there is no statement by the accused which could be admitted under section 27 of the Indian Evidence Act. This attempt on the part of the prosecution to connect the accused with the place of offence must fail. The more important piece of evidence against the accused is a confession made by himself before the Executive Magistrate of Sindgi Taluka, P.W. 1 but later retracted before the committing Magistrate. The confession was recorded by him on the 17th of April, 1957 and is in the following terms: “On a Friday 15 days ago I had gone to the field in Kakkalmeli to give bread to my uncle’s son. He was then ploughing. After giving bread, I brought stone and put it near the Don. Five hours after sunrise, he took the plough and went home. I too returned home. After ablutions, I took food. Then I went towards the house of my aunt Yamanawwa. At that time, on the Way, Bhimawwa was sitting near the house of the Waddar. I told her ‘come, let us go to the field’. That girl was an idiot. She merely made a sound signifying consent. We came to the field. I took her to the field of Bavasab. I asked her to sleep. The girl said ‘yes ‘and lay down to sleep. Then I caught hold of her legs and ravished her. When I ravised her, blood came out from the private parts. I beat her by stones fearing that he might go home and tell against me. Then I went home. I threw the body in the field and came home. The girl was 9 years old. I beat her on her cheek with a stone as big as a palm. Soon after she Was beaten, she began to cry. I struck her again with a stone. Then the girl fell down and life passed away. I threw her there and came home. In the evening, I went back and buried her in the furrows. The girl’s grand-mother asked me about her. I said I do not know anything about her. Soon after she Was beaten, she began to cry. I struck her again with a stone. Then the girl fell down and life passed away. I threw her there and came home. In the evening, I went back and buried her in the furrows. The girl’s grand-mother asked me about her. I said I do not know anything about her. This is all that I have got to say and I have nothing more to say.” The learned Sessions Judge has accepted this confession to be voluntary and true and in our opinion the conclusions of the learned Judge are largely, if not solely, based upon this opinion of his. In his own words “the accused stands condemned on his own confession”. We apprehend that this strong belief on the part of the learned Judge in the truth of the confession has to a considerable extent prevented the learned Judge from adverting to serious defects in the prosecution case. In coming to the conclusion that the confession has been voluntary the learned Judge has relied upon the following circumstances, the accused made the confession within a short time of his arrest; both the Executive Magistrate P.W. 1, who recorded the same, and the Judicial Magistrate, P.W. 11, who sent him over to the former for the purpose, have deposed that the accused did not complain of any ill-treatment by the Police and that there were no marks of ill-treatment either on his body; the Executive Magistrate further deposes that he had taken all precautions before recording the confession and had administered the usual warnings. The learned Judge, however, finds on the evidence that the confession was recorded at 9 a.m., out of Court-hours, and that P.W. 1 had not noted in the record of confession that the accused had been given two days’ time for reflection as required by the circulars of the Bombay High Court. He, however, thinks that these are immaterial points and accepts the explanation of P.W. 1 for both these omissions and irregularities, viz., that he was a touring officer and that he did not have with him at the time the relevant circulars of the Bombay High Court. We must at once state that we cannot accept the view of the learned Sessions Judge that the omissions or irregularities admitted by P.W. 1 are immaterial and of no consequence. We must at once state that we cannot accept the view of the learned Sessions Judge that the omissions or irregularities admitted by P.W. 1 are immaterial and of no consequence. The value of recording confessions of accused persons in Court-halls during Court-hours is perfectly obvious. It ensures that such person knows and feels that he is in the free atmosphere of a Court and that he is absolutely free from any fear or apprehension induced by his having been in the custody of police officers conducting the investigation. Every person who knows anything of Courts, particularly Judicial Officers, are not unaware of the fact that outside Courts and outside Court-hours there is always an air of informality and that the solemnity, dignity and a sense of freedom and protection associated with Courts are true only when the Court sits in the Court-hall during Court-hours. Secondly the forms and detailed instructions issued by High Courts for the guidance of Magistrate recording confessions of accused persons under section 164 of the Code of Criminal Procedure are not to be lightly treated as mere forms or formalities. They are all intended to sub-serve the main purpose of the law, viz., to ensure that the accused person feels free to speak the truth. Although a particular Magistrate may record a confession, it is ultimately for the Court which tries the accused to decide whether the confession has been voluntary and represents the truth. It is, therefore, essential for Magistrates recording confessions to put down in the record of the confessions itself every circumstance and every detail which is necessary for the trial Court to come to the above conclusion. The view of the learned Sessions Judge that the confession was recorded veryshortly after the arrest does not appear to be correct. There is, no doubt, positive evidence of the Police Patil, P.W. 7, and the Outpost Amildar, P.W. 8, to the effect that the accused was not available in the village and was absconding. The Investigating Officer, P.W. 10, deposes to his having issued a warrant under section 56 of the Code of Criminal Procedure requiring P.W. 8 to arrest the accused. The Investigating Officer, P.W. 10, deposes to his having issued a warrant under section 56 of the Code of Criminal Procedure requiring P.W. 8 to arrest the accused. P.W. 8 further deposes that learning upon confidential information that the absconding accused was in hiding in the neighbouring village called Jatnal, he proceeded to that place at about 5-30 a.m., on the 13th of April, 1957 and found the accused coming towards his native village Kakkalmeli, apprehended him there and produced him before P.W. 10 at 6-30 a.m. All this fabric of evidence is destroyed by the answer of the accused to one of the preliminary questions put to him by P.W. 1 while recording his confession. The accused clearly states as follows: “I Was taken at 2-3 hours on Thursday 7 days back from my house in Kakkalmeli and questioned. On Saturday my statement was recorded. On Sunday I was taken to Indi and produced before the Magistrate.” We have read the original in Kannada and are satisfied that the translation clearly brings out the sense of the original. The detailed reference to the name of the day on which he was apprehended and the period elapsed since then leaves no room to doubt that according to the accused he was actually arrested in his own village on Thursday the 11th of April itself. It is unlikely that in the course of these preliminary questions the accused would have thought out deliberately false answers, especially when we remember that he did not complain of ill-treatment by the Police either to P.W. 1 or to P.W. 11. We would rather believe that the truth must have slipped out of his mouth when this question was put to him by the Magistrate, P.W. 1. It is difficult for us to accept the evidence of P.Ws. 7 and 8 that the accused was absconding. Abscondence does not mean mere absence. It means an attempt to evade the law. If the accused had run away from the village with that intention, it is difficult to believe why he should return to his village at a time when he should have known that the Police were in the village conducting the investigation. Abscondence does not mean mere absence. It means an attempt to evade the law. If the accused had run away from the village with that intention, it is difficult to believe why he should return to his village at a time when he should have known that the Police were in the village conducting the investigation. In this connection it must be remembered that it was definitely suggested on behalf of the accused to P.W. 2 in her cross-examination that both the accused and his father actually joined P.W. 2 in her search for Bhimava. Along with this, certain other suggestions in the cross-examination of witnesses assume importance. If the evidence of P.Ws. 2 and 7 is to be believed, P.W. 2’s complaint Exhibit 10 was given to P.W. 7 at 9 p.m. on the night of 10th April, a few hours after the discovery of the bones by Hulakanti, P.W. 5. The clear statement in Exhibit 10 is that the bones were discovered on the day previous to the day on which Exhibit 10 was written. If the bones, as deposed to by P.W. 5, were discovered on the 10th, the complaint must have been made only on the morning of11th, immediately after which the Panchanama Exhibit 15 would have been drawn up. Both P.Ws. 2 and 7 in their chief examination itself depose that the term “yesterday” (ninnaya divasa in kannada) in Exhibit 10 is a mistake for “today” (i divasa). Then again with reference to the 3rd Panchanama, Exhibit 17, which bears the date 13th April, 1957, P.W. 10 admits that there is an over-writing on the date without any initials by him, although he denies that he had changed the date from 12th to 13th. All these small details leave the impression that the dates given by the witnesses for the complaint Exhibit 10, the Panchanama Exhibit 17 and for the arrest of the accused are in all probability false. In addition, there is the fact that both Kolleppa, P.W. 3 and Hulakanti, P.W. 5, had told the Investigating Officer at the time he recorded their statements on the 12th of April, 1957, that the accused had ravished Bhimava, although P.W. 2’s. complaint, Exhibit 10, makes no mention of rape. In addition, there is the fact that both Kolleppa, P.W. 3 and Hulakanti, P.W. 5, had told the Investigating Officer at the time he recorded their statements on the 12th of April, 1957, that the accused had ravished Bhimava, although P.W. 2’s. complaint, Exhibit 10, makes no mention of rape. In the light of all these, one cannot discount the possibility of the investigation itself proceeding upon a theory of rape (motives of robbery or hatred for murder being obviously ruled out in the circumstances of the case), and the confession of the accused following upon threats or inducement against the background of that theory as admittedly spoken to by P.Ws. 3 and 5. The confession itself is full of details. In the absence of any eye-witness to the occurrence, it is impossible to find any corroboration of these details in the other evidence on record. If one is to suppose that Bhimava was selected by the accused for sexual attack because she was an idiot would be an easy prey for it and most unlikely to speak out about it, it is unlikely that he would have got afraid of her going and telling people about it. If so, one wonders why the accused should have proceeded to murder her. The confession would have us believe that the accused stoned her to death by beating her on her cheek with a stone as big as a palm. Such an attack must have resulted in at least some of the check bones getting cracked. No such injuries have been discovered on the skull found in Shalimia’s field. This would mean either that the skull is not that of Bhimava at all or if it is that of Bhimava she was not beaten by stones on her cheek. Above all, according to the confession, the accused made two trips to the place, the second one late in the evening to bury the body. It is most surprising that nobody would have seen him especially if one remembers, that within about a couple of hours in the afternoon Kolleppa had told Shivamma about the accused taking the girl away and Shivamma did actually go to her house, found the accused there and questioned him. All these circumstances go to show that the story made out in the confession is intrinsically improbable. All these circumstances go to show that the story made out in the confession is intrinsically improbable. Confessions have at all times to be scrutinised by Courts with great care and particularly in a case like this where an offence of murder is sought to be made out on the basis of retracted confession. It may be that as a matter of law a confession by an accused even though retracted need not be treated on a par with confession by a co-accused to require corroboration on every material particular. Yet as a measure of prudence Courts would require some corroboration before they could think of believing in the truth of the confession. In this case the process appears to have been reversed by the prosecution. Far from placing before the Court circumstances which would corroborate the confession they have sought to rely upon the confession to fill up the blanks in other evidence. If one really a analyses the entire evidence on record along with the confession, every thing left inconclusive by other pieces of evidence is sought to be given a meaning consistent with the theory of rape followed by murder by relying upon the picture drawn in the confession. If there had been on record other evidence sufficient at least to picture the prosecution case in broad outline, one would have had some scope to examine the truth of the confession by trying to see whether it would fit into the outline suggested by other evidence. There is no such possibility in this case. Examined from any point of view, therefore, the record does not sustain the theory of the prosecution. We are not at all satisfied that there is my case against the accused other than the confession or that the confession is either voluntary or true. It has, therefore, to be held that the prosecution has not proved its case against the accused. The result is that the reference is rejected, the accused’s appeal is allowed and he is acquitted. He shall be set at liberty forthwith.. S.V.S. ----- Reference rejected. Acquittal ordered..