Chinna Gowda v. State of Mysore

Judgment

I StJPREME COURT REPOR1:8 CHINNA GOWDA STA1'E OF MYSORE (K. C. DAB GUl'Ta, J. R. MUDHOLKAR and T. L. VENKATAR.ill.A AIYAR, JJ.) Criminal Trial-Approver-Corroboration of-·· Retracted confe•Bion• oJ co..accu•ed-When can be 'l<Bed a. corroboration. The appellants were convicted of murder. The sub- - stantial evidence on which the conviction rested was the evidence of an approver and the confessions of two coaccused. Held, that the conviction of the appellants could not be sustained. Though .there· is no bar for a conviction being based upon the evidence of an approver alone, as a matter of prudence the courts always require that· such evidence should be corroborated in material' particulars. The need for corroboration is all the greater in a case likethe present where the approver, apart from being of bad character, could not be said to be a man of truth since he had rcsiled from his confession before the Committing Court.

The retracted confessions of the cc>·accused in the present case could not be safely relied upon for corroborating the approver. The confession of an accomplice which cannot be tested by cross-examination is a very weak type of evidence. Even if some weight could be attached to confessions when made by two or more accomplices independently of each other implicating a particular accused the confessions in the present case were not such as could be taken as good corroboration of the approver. Bhuhoni Sahu v. Tht King [1949] L.R. 76 I, A. 147 and K~l:mira Singh v. State of Madhya PradeBh [1952] S.C.ll. 526, relied on. CimnNAL APPEi.LATE JumsDIOTION : Criminal Appeal Noe. 172 & 173of1961. Appeals by special leave from the judgment and or~er d~t~d July 7, 1961 of the Mysore High Court m Criminal Appeals Noe. 352 and 355 of 1959 and Criminal Referred Case No. 25 of 1959, Aprilt7. IHI ChiMO Goa:irh sw .. JM,. ... N. H. llingorani, for the appellants. B. R. /,, Iyengar and H. H. Dhebar, for the respondents.

1962. April 27. The Judgment of the Court was delivered by MuDHOLKAR, J.-1'hc> appellant, China Gowda, was tried along with six othe1· persons for committing the murder of an entire family conaisting of eight persons on the night intervening the . 12th and J:Jth February, 1958, in Handigodu hamlet of the village Viavalli. The learned Sessions Judge convicted every one of them under e. 302, Indian Penal Code, and sentenced each of them to death. In appeal, the accused No. 2, Shivappa Naika and accused No. 7, Gunde Gowda were acquitted. The appeals of the remaining accused persons were dismissed The High Court, however, confirmed the conviction and sent;inces only of the appellant Chinna Gowda and of Rame Gowda, appellant in (...'riminal Appeals Nos. 172 and 173 of 1961 and while affirming the conviction of the other three aooused commuted the death sentences passed against them to imprisonment for life.

The appellants in the two appeals were granted special leave by thi1 Court under Art. 136 of the Constitution and that is how the appeals are now before us. The fu.cts as alleged by the prosecution are briefly these: The deceased, Mariappa Gowda took up residenc" in Handigodu about eight or ten yeal'll prior to the murder. He was an industrious and thrifty person and soon became very prosperous. This aroused the envy and jealousy of the appellant, Chinna Gowda. In the course of years, numeroua disputes over the boundaries of fields, trespasses on fields, the flow of water and so on arose between the two of them. For some time prior to the l I murders, the relationship between Mariappa Gowda (deceased) and the appellant as well as Rame Gowda, the appellant in the other appeal, became very strained. It may be mentioned that Rame Gowda was actually living with Mariappa Gowda for some time and Mariappa Gowda leased out some lands to him.

Shortly thereafter, both of them fell out and Mariappa Gowda was anxious to evict Rame Gowda, from the leased lands. Mariappa Gowda was, therefore, reluctant to issue receipts for rent paid by Ra.me Gowda, to him. This annoyed the latter. Eventually, however, on the intervention of Chandiah Hegde, P. W. 67, Mariappa Gowda passed a receipt in favour of Rame Gowda. To his surprise, Rame Gowda, however, found that the receipt <'ontained false recitals to the effect that he had surrendered the leased land to Mari>ippa Gowda. He, therefore, complained about thi~ to Chandiah who promised to settle the matter. In thA meanwhile, Ra.me Gowda's anger increased. One day, he actually stopped the bullock cart of Mariappa and challenged him to try and evict him from the leased lands. Sometime thereafter he complained to one Singappagowda that Mariappa had cheated him and said "you will see what I will do to him in a few days."

According to the prosecution, the remaining accused were the friends of the appellant, Chinna Gowda but it is not suggested that they had any personal grievance against Mariappa Gowda. It is common ground that Mariappa's house is situated about a furlong and a half of the house of Chinn& Gowda and that no other house than Chinna Gowda's is nearer Mariappa's house. Mariappa lived there with his wife Bellamma and six children. Since he was living in an isolated place, he had kept a dog. He also used to keep a light-burning outside his house. Further, he had a gun which was D8U&IIJ kept loaded in the house. Few daJB 1161 • Chlnoa fJowd• ·s1at1 ,,f JL-,1or llludl>lkar J, IHI Ch .... G.Wo Slate of M,,.,. Jludholl;•r J, SUPREME OOURT REPORTS (1963) before the incident, the dog had died but the ca.use of the death of the dog is not known. Between 6.30 and 7.00 a.m. on the morning of February 13, 1958, P.W. 12 Narayan of Handigodu who was employed as a labourer by Mariappa Gowda, went, as usual, to bis master's house.

He was horrified to find that all the doors of tho house were open and the inmate• of' the house were lying on their beds in pools of blood, having been done to death by someone. Thereupon he went to the house of one Harithal Chandegowda, P.W. 31, and informed him of what he had seen. Both of them along with another man proceeded to the village Handigodu. Eventually, the firet information was lodged with the police who commencr.d investigation. After investigation, the seven accused persons and P.W. 40, Venkappa Naika, who later turned an approver in t.he case, were arrested in connection with the murders. During the course or the investigation, P.W. 40, Venkappa Naika, accused No. 3 Manjappa Gowda, and aocusad No. 4, Manjappa Naika, maJe confessions. Venkappa Naika was tendered a conditional pardon on his agreeing to give eviclence on behalf of the prosecution. At the committal stage, all the three persons retracted their confessions.

However, all the alleged participants in the crime, except Venkappa Naika, were sent up for trial and were tried by tho Additional Sessions Judge, Chikmagalur. At that trial Venkappa. Naika gave evidenoe for the prosecution on the linC11 of his confession, saying that he had retracted the confessions at the oommita.l stage as the appellant: Chinn& Gowda had threatened to kill him. The learned Additional Slll!Bione Judge, relying ma.inly on the evidenoe of the a.ppover, as corroborated by the retracted confoBBioos of two of the atlCused persons, convicted .-icl BBQtenoed aU the aoomed penooa u alread1 stated. In addition to the evidence of the approver, the prosecution has relied upon the evidence of two witnesses, P.W. 16, Dugamma, a neighbour of Chin· na Gowda and P.W. 59 Mariappa, son of Ra.me Gowda, an agricultural servant of Chinna Gowda.

The learned Additional Sessions Judge, as well as the High Court, believed their evidence and regarded it as affording some corroboration to the evidence of the approver. The prosecution further relied upon the fact that just prior to the date of the murders, Chinna. Gowda, who was heavily pressed for money, had arranged to obtain a loa.n of Rs. 600/- for one T. Shivaiah alias T. Shivaswamy, P.W. 75, who had agreed to advance ·it to him on February 13, 1958. Inspite of T. Shivaiah agreeing to advance the loan, China Gowda did not go to his house on the appointed day.

The suggestion is that after committing the murders, all the accused persons looted the cash and jewellery found in that house and the ca.eh was retained by China Gowda with himself, Finally, the courts below have relied upon the circumstance that the accused person, in particular the appellants in the two appeals before us, did not, like other innocent villagers, go to make enquiry about the incident or go to the hospital w.'1ere the dead bodies were taken. The evidenoe of P.W. 16, Duggamma and that of P.W. 59, Mariayappa does not afford corrobora· tion to the evidence of the approver on m11terial particulars and in fact two· of the statements made by the latter contradict the ·evidence of the approver on some important points. Thesubstantial material on which the case rests is thus the evidence of. the approver and the retracted confessions of two of the accused persons.

The question, therefore, is whether conviction of the appellants oou Id be sustained on the basis of tbis '.ID&teria,l. ".fbere iii! :,o doubt tba.t s, 133 of tho IHI Chinn• GolJlflo Slate •f Jlpo,, Mudholta J. Cli iftna C"'"4 Ste11 •f .~y1•r1 Jlullrolf.ar J. SUPREME OOURT REPORTS [1963] Evidence Act does not debar the court from basing the conviction of an accused person on the evidence of the approver alone but a.a h~e been observed in a large number of cases, including the decision of the Privy Council in Bhuboni Sahu v. The King(') the Courts, as a matter of prudence, always require that the evidenoe of the approver should be corroborated in mu.torial particulars. Thie rule has been founded on a.

114(b) of the Evidence Act which enables the Court to presume that an accomplioe is not worthy of credit unless he is corroborated in material particulars, The need for such corroboration would be all the more greater where, as here, the approver, apart from being a person of bad character by reason of his participation in a. heinous crime, cannot be ea.id to be a man of truth since he had resiled from his confession before the committing magistrate. This circumstance emphasizes, if emphasis was necessary, tho need for requiring corroboration to his evidence in material particulars. The substance of the evidence of the approver, Venkappa Naika, is this. On the day prior to the incident the appellant Chinna. Gowda met him at Thyava~anda. Anga.di when both of them were returning to their villa.go from Sringeri. Venka.ppa Na.ika., it may be mentioned, is a. bootlegger. Chinna. Gowda. a.eked him whether he had any 'arrack' available and upon Venka.ppa.

Na.ika. answering in the affirmative, Chinna. Gowda gave him Rs. 5/- and asked him to take two bottles of arrack to his house the next evening as there was a party at his house. Accordillgly, on the next day, i.e., on the dg.y of the incident, Venkappa Naika w!lnt there in the evening carrying with him two bottles of arrack. He did not see Chinna Gowda. but saw Manjappa Gowda, accused No. 3, grooming two bullocks in front of the house. He, therefore. (I~ (l!Mll) LR. 76 J.A. lt7. enquired of him where Chinna Gowda was. On being told by Manjappa Gowda to go to .tho areca. garden where Chinna Gowda would shortly be go· ing, Venka.ppa Na.ika. went there. He uoticed three of the accused persons, Shivappa Naika, Rame Gowda (appellant in the other. appeal) and Gunde Gowda sitting under a jack fruit tree. A little later Manjappa Naika who is· accused No. 4 came there and was followed shortly after by Chinna Gowda and Ramappa Naika who is accused No. 5 in the case and Manijappa Gowda.

The latter brought 'rotti' and chicken and curry. Thereafter, all the persors . present were served with arrack. Then they had a meal consisting of chicken curry and rotti which was served by the Manjappa Gowda. After finishing their meals they again had a round of arrack. While they were having arrack, Cbinna Gowda said. "Handigodu Mariappa Gowda is harassing me. We must go and finish him today". Thereupon, Shivappa Naika ~aid, "work must be done carefully. Whatever punishment may be meted out, you should not open your mouth. I am _there to see to the rest." A{ter that, China Gowda t.ook Shivappa to his house and left him there and returned alone to the garden. By that time jt was midnight. All of them then got up and at the instance of Chiima Gowda went to the house of the deceased Mariappa Gowda. China Gowda, Manjappa Gowda, Maojappa Naika, Rama Gowda and the approver, Venkappa Naika each had a chopper with him. On the way, Chinna Gowda observed "We should not leave even a worm.

You must do the work carefully." On reaching the house of Maria.ppa Gowda they noticed a bed-lamp burning on the Jagali which was put out by Chinna Gowda. He, as well as Ra.me Gowda, had torches with them and they flashed them now 1md again. Thel\ Rame Gowda struck on the neck of Ma.ria.ppa. Gowda. who wu OhinM CouHI• Slate of M;y•or1 '"\£ udholkar J. r Chtnn• Cow'" Sl•l1 oj M,s111 M udholAttr J. SUPREME OOURT REPORTS [1963J sleeping on the jagali, with the chopper in his hand. Chinna Gowda dealt a similar blow on the neck of Bellamma who w&& sleeping close to llfariappa. The approver, himself struck Bcllamma on her head. Ra.me Gowda. next struck a male child on his neck with his chopper. It appears that the others were just looking on. Chinna Gowda looking at Manja.ppa Naika said, "Why a.re you looking on, fool ?" Whereupon that person struck on the neck of Gunda, the eldest son of Mariappa Gowda with his chopper.

Thereafter, Cbinna Gowda., Manja.ppa Gowda. and Rame Gowda. went inside tho house and murrlered the four children of Ma.riappa. Gowda. who were sleeping there. Then Chinna Gowda re-lighted the bed lamp which had been blown out earlier, took out tho bunch of keys from the waist of Mariappa Gowda, opened the Jock of one of the rooms of the house and took out from it a trunk. He opened the lock of the trunk. This trunk contained a gold chain, a pair of bugudis, three gold rings and one gold flower. It also contained two bundles of currency notes. Chinna Gowda. took possession of all these articles. In the meanwhile Harne Gowda removed the gold ear-rings from the ears of Bellamma as well as .removed her 'ma.ni-sa.ra' whioh she was wearing on her neck and . handed them over to Chinna Gowda. Chinna Gowda wrapped up the jewellery in a. towel aud handed it over to Ramappa Naika but he kept the currency notes with himself. Thereafter the party left the house of Ma.riappa.

They went to a na)a nearby nnd washed their hands &8 well as the choppers. On their way back to the house of Chinna Gowda; the latter said, ••Let tho commotion be over. Thereafter let us distribute the gold and the money. Let no one demand it now. There is Shivappa Na.ika. We shall distribute it." Thereupon Manjappa Naika, Rame Gowda and Gunde Gowda. went to their reepective ho\UIC!6 while Cllinna Gowda, Manjap\>8' 2 S.O.R. Gowda and Ramappa Naika, went to the house of Chinna Gowda. The approver went along with them. After reaching the house, Chinna Gowda took the jewellery from Ramappa Naika which he kept inside the house. Chinna Gowda gave the approver a 'kambal' and 'asked him to sleep on the jagali. He, therefore, slept there along with Majappa Gowda and Manjappa Naika while Chinna Gowda himself slept inside the house. Early in the morning, the approver left Chinna Godwa's house and went to his own house. What is first to be considered is the evidence of P. W. 16, Duggamma and that of P. W. 59, Maryappa, sun of Rame Gowda.

We have already indicated that it does not afford corroboration to the evidence of the approver. The former stated in his evidence that just when she was going to bed she heard Ramappa Naika saying, "Torch light fell." At that time, Chinna Gowda and Manjappa Gowda were with him and all the three of them were on the jagali. There is no reference whatsoever to the Clashing of the torch in the evidence of the approver. All that could be said is that there is perhaps a partial corroboration to the statement of the approver that while some of the participants in the crime were sit.ting in the areca garden early in the evening, Chinn& Gowda. and Rammappa Naika came there together and were followed shortly after by Manjappa Gowda. But much importance cannot be attached to a partial corroboration. Later in her evidence, Duggamma stated that she woke up during the night and noticed torch light being flashed on her jagali. Just then Chinna Gowda came near the jagali.

Thereupon she asked "who is it". On that, Chinna Gowda said: "No one. Have you not got sleep. Sleep on." Now, according to the approver, he was accompanying Chinna Gowda a.t that time, but there is no reference whatsoever to the incident in his evidence. 196• Chin.na Gowda Stat# of M11s1r1 Mutlbo/kar J. JMI Clu'nna G(JtDia s1.t1 of Jly1(1fe Mudhollt.,. .J. SUPREME OOURT REPORTS [1963] In the circumstances, it cannot afford any corro boration to any part of the evidence of the approver. Now, coming to the evidence of P. W. 59, Maryappa, son of Rame Gowda, who waa a eervant of Chinna Gowda, wh'tt he eays is that on the evening of the date of the incident, the approver, Veokappa Naika came to his master'8 house and asked Manjappa Gowda where the appellant Chinna Gowda w&s. Thereupon Manjappa Gowda told him that Chinna Gowda was not at home, and perhaps had gone somewhere. After hearing this, Ven kappa Naika went towards the garden at about 9.00 or 9.30 p. m.

While the witness was sitting on his bed on the jagali of Chinna Gowda' a house, Chinna Gowda and Ramappa Na.ika came to the house and had their meals. Thereafter Chinna Gowda, Manjappa Gowda and Ra.mappa Naika sat talking on the jagali. When they were chatting he saw a torch light being flashed on a tree near the house. Thereafter, a.II these three persons got up sn.ying that they should go to tho garden and accordingly went there. Five or ten minutes later, they ca.me back to the house. Chinna Gowda warned the witness not to mention to any one about the fla.ahirig of the torch. The witness 1 hen wont to sleep and got up at 6.00 or 6.30 n. m. He then found Chinna Gowda and Ramappa Nai!m still in bed on the jagali. Instead of affording any corroboration to the evidence of tho approver, the evidence of this witness contra.diets the approver on several points.

Naw according to the approver, ho went to the garden of being told by Ma.njappa Gowda to do so, but that is not what the witness says. According to the witnoss, Chinna Gowda a.ml Ramappa Naika had their food in the housr and thereafter, after the torch light was flashed, they went inside tho areoa. garden. According to tht• approver, a.II the participants in the crime had arrack as well aa l SUPREME COURT REPORT8 chicken curry and 'rotti' ·in the garden, that the whole party got up at mid-night, Chinna Gowda returned to the house with Shivappa, then came back to the garden after leaving him and then they all went towards the house of the deceased, Mariappa Gowda ... According to the witness, not only Chinna Gowda and Ramappa Naika had their meal& in the house but that they returned to the jagali five or ten minutes after they went to the garden and it was then 9.30 p.m. Thie is wholly inoc:insistent-with an important part of the story as narrated by the approver.

Finally, while, according to the approver, Chinna Gowda slept inside the house on the night in question, the witness says. that he slept on the jagali. Considering, therefore, the evidence of the witness as a whole, it must be said . that far from affording corroboration to the evidence of the approver on material particulars, it contradicts the evidence of the approver at least with respect to one fact which is material and that is the entire party leaving the garden at midnight for the house of Mariappa Gowda. If the evidence of·the witness is true it would seem that Chinna Gowda, instead of going to the house of Mariappa Gowda, · along with others returned to his house and slept on his jagali. For, he does not say that after coming back from the garden at 9.30 p.m., Chinna Gowda again went there. No doubt, the approver said that before going to the house of Mariappa, Chinna Gowda went with Shivappa to his house and then returned immediately.

But aooording to him it was at midnight and not a~ 9.30 p.m. Thus, far from corroborating the evidence of the approver in so far as the participation of the appellant Chinna Gowda is concerned, the evidence of this witness tends to contradict it. Then there is the corroboration, said to be afforded by the retracted confessions of the accused Manjappa Gowda and Manjappa Naika. We have not been taken through the oonfelisions of these Chinna Guu:da Mudholkor J. IHI CAi .... C.Wda StoleofM}lsffl M tJ/iolW J. SUPREME OOURT REPORTS fl963J twq persons but we will a.ssame tha.t these two persons tell tho sa.me story a.a the a.pprov.-ir but the question ia whether the confeseions oa.n safely be relied upon sa affording corroboration to the evidence of the approver. Since the a.ppella.nts and the confessing accused persona, Manjappa Gowda and Manjappa Na.ika were trfod jointly for the same series of offences, their confoseiona can be used against the appellants under s. 30 of the Evidence Act.

But a. confession cannot be regarded as a. piece of satisfactory evidence because it is not ma.de in the presence of the person or persons whom it incriminates a.nd con. sequently oa.nnot be tested by croes.exa.mination. A conf688ion, therefore, is a much weaker type of evidence than the evidence of the approver which is not subject to such an infirmity. No doubt, by virtue of s. 30 they can, as pointed out in Bhub<mi SaJvu's case (cit. sup.) can b) taken into consideration by the Court and thereby tr~ted as evidence upon which the court ma.y a.ct, but s. 30 does not sa.y that the confession a.mounts to proof. In Kashmira Singh v. State of Madhya Pradesh (1) this Court has approved of the decision in Bhuboni Sahu's CMe and obsel'Ved : "But ca.ses may a.rise where tho judge is not prepared to a.ct on the other evidence as it stands even though, if believed, it would be Rufficient to sustain a conviction.

In such an event the judge ma.y call in a.id the confes~ion and use it to lend assure.nee to the other e~ence a.nd thus fortify himself in believing what without the aid of the confesaion he would not be prepared to a.ooept." After making these observations this Court has pointed out the danger of using the testimony of one accomplice to corroborate another because (1) (1952) S. C. R. 526, 530. 2 s.c;n. for one thing evidence consisting of the confession · of the accomplice cannot be tested by cross-. examination. Relying upon illustration (b) to e.

114 of the Evidence Act it was contended on behalf of the Crown in Bhubani Sahu's case (I) that where several participants in the alleged crime have in their separate confession implicated a particular person as being the oulprit and there was no previous concert amongst the confessing accused, there was no reason to reject their confessions and that the evidence of the approver which, as here, was the primary evidence in the case should be regarded as being sufficiently corroborated by such confessions. The argument was rejected by the Privy Council on several grounds. One of the grounds was that the confessing accused had been produced before the magistrate together for recording their confessions. Then they pointed out at p. 157 :

"............... whilst appreciating that the coincidence of a number of confessions of coaooused all implicating the particular accused, given independently, and without an opportunity of previous consent, might be entitled' to great weight (their Lordships) would nevertheless observe· that courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused. The danger of acting on accomplice evidence is not merely that the aocomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he oan hardly fail to have a strong bias in favour of the prosecution; the real (I) (1'49) L.R. l'& I.A. lt7. I96B - Stat• of MJIWI Mudholkar J. 11111 aiirrraQowJo Stak of Jl,-1 JI uditol /tar J. SUPREME OOlJRT REPORTS [1963] ci qer is tha.t he is telling a story which in its genera.I outline is true, and it is tasy for him to wqrk into the story matter which is untrue.

He may implicate ten people in a.n offence, and the story ma.y be true in all its deta.ils a.e to eight of them, but untrue a.e to the other two, whose na.mee ha.ve been introduced because they a.re enemies of the approver." It would appear from the record of these a.ppeals that the oonfessions of the approver and Ma.njanppa. Gowda were recorded on the same day, i.e., March 27, 1958 by Mr. V. Heva.nna, ~la.gietra.te, First Class, Chikamagalur, while tha.t of Ma.njappa. Na.ika wa.s recorded by a.nother Magistrate on Ma.rch ~9, 1958. Mr. V. Rcvanna. was examined as P. W. 41 in this case and he ha.s eta.ted in evidence that he received a requisition from the Deputy Superintendent of Police, Mr. Rama.swamy on Ma.rch 22, 1958 for recording the confeseional statements of Ma.njappa. Gowda and the approver, Venkappa. Naika and those perRons were produced before him on that very day.

He informed .them that thereafter thev would be removed from the police ouatody and then he remanded them to the judioial Jock-up till March 24, 1958. He also wld them that they were not hound to make any confessions. As, however, he was on oaeua.l leave from March 23, 1958 to March 26, 1958, they were produced before him on Maroh 27, 1958. It would appear tha.t these persons were in the police lock-up since their arrest till March 22, 1958 and were actually brought together to the magistrate's oourt. There is nothing to show that they wer1o kept separate. In the circumstances there is no guarantee that the accounts which they have given of the incident in their confessions were independent and without previous concert. Therefore, apart from being a very weak type of evid .. noe, there is an absence of intrinsic evidence in the confession of Manjappa Gowda which would go to provide an assurance that it is· true in all its details.

It may be that the general outline of the incident given by Manjappa Gowda is correct but insofar as it iropli· ca.tea the appellants before us there is no guarantee about its truth. We cannot, therefore, regard that confession as affording corroboration to the evidence of the approver. The defect which we have pointed out with respect to the confession of Manjappa Gowda does not appe.ar to be present in Manjappa Naika's confession. He was first produced before a magistrate for recording his confession on March 27, 1958, and was then remanded by the Magistrate to judicial custody till March 29, 1958. It is possible that since this persons was arrested on March 15, 1958 by which date the approver and the other accused including Manjappa Gowda had presumably been arrested, tlrey may have been in police custody together for some time. It is, however, not clear from the record whether they were kept in custody at the same place.

The circumstance appearing in the Privy Council case may, therefore! not be pre· sent in so far, as he is concerned. A I the same we find that there is one grave infirmity in his confes• sion. The record does not show that when Manjappa Naika was produced before a magistrate on Ma.r()h 27, 1958, and remanded by him to the judicial custody he was given due warning by the magistrate and told that he · should reflect whether he should make any confession at all. In his eumination as witness No. 44, the magistrate, Mr. K. S. Malle Gowda has stated as follows : "On March 27, 1958, the Deputy Superintendent of p.olice produced before me A·4 Manjappa Naika and· gave me the requisition, Ext. P. 23. for recording his statement under Olli•aa Ge.,da 81dle •f MJI••" Mw!AolTtlw J, J96J CAir.na G.w•a Start oj M,..,, M.flholllar J. SUPREME 001.JRT REPORTS [J1163J s. 164, Cr. P.C. On that, I remanded A-4 Manjappa Naika to the judicial custody till March 1958.

Aocordiiigly, on March 29, 1958, he was produced before me in my Court hall by the Sub-Jail authority at about 11.00 a.m.'' Thereafter he said that he asked the usual preliminary questions and then recorded the statement of Manjappa Na.ika. No doubt, it would appear that on Mai ell 29, 1958, the Magistrate asked M&Jlf jappa Naika whether he wanted time to think over the matter to which the latter replied: "write", presumably meaning thl'reby that he did not want time. That, however, iA not sufficient compliance with the requirements of law. It has been pointed out by this Court in Sarwan Singh v. 'l'he State of Punjab(') that when an accused person is produced by the invl'Stigating officer before the Magistrate for recording his confeBBion, it is of the utmost importance ~hat· his mind should be completdy free from any p 'BBible influence of the police and he must be sen; to Jail custody and given adequate time to consiJer whether he should make a confession at all.

Jt. is true· that here Manjappa Naika, after being produced by the Investigating officer before a Magiatrate for recording his confession the latter remanded him to the judicial custody upto March 29, 1958, i.e., for two days but it We.I! necesllllJ"Y for the magistrate to make it clear to Manjappa Naika that he We.I! not bound to.make the confession and that if he 'me.de the confession, it w&B likely to be used against him and that, therefore, he should reflect whether he should make any confeBSion at a.II. It does not appear from tho evidence of the Magistrate Mr. Mall'l Gowda that he brought these important matters to the notice of Manjappa Naika while remandmg him to t,he (I) [1957] s.c.R. 9S3. stTPREME COURT REPORTS judicial custody. In the circumstance, the confes· sion is not one upon which a Court can properly act.

That leaves for consideration only one circums· tance on which the High Court has relied and that is the failure of the appellant, Chinua Gowda, not to goto the house ofT, Shiviah alias T. Shivaswamy, P. W. 75, for receiving a loan on February 13, 1958. It is said that he did not do so because he had with him the booty collected from the house of the deceased Mariappa Gowda and, therefore, he no longer stood in need of raising the loan. There may be various reasons why Chinna Gowda did not keep his appointment but even assumiJ!.g that he had come by some money and .that this happened ·as a result of the incident which took place on the night between February 12 and 13, 1958, it would not be legitimate to conclude that he had himself participated in the murders. Thus we are Ieft only with the evidence of the approver.

As already pointed out, his evidence suffers froin two infirmities: on his own showing he is a man of bad character, and further in the court of the committing magistrate he went back upon his confession before Mr. Revanna, Magistrate First Class. Again he is a person whose business is to manufacture illicit liquor. . Thus, apart from parti· cipating in the heinous crimes which were perpe· trated on the riight in question, he has been leading a life of a law.breaker. His evidence, standing by itself, cannot, therefore, carry conviction. Indeed ;neither the. Sessions Judge nor the learned Judges of the High Court regarded liis evidence as bring sufficient to justify conviction of the various accused persons. In the circumstances we must hold that his evidence. cannot safely be regarded as the sole Qasis for resting the conviction of the, two appellants before us. Chittna. Gowda S tsle of M,sore Mudholk4'J. CMnna Gow.ta S1.i. .J Jlysor• MtMIAalk., J. We, therefore, allow ea.oh of the two appeals, set a.side the conviction a.nd sentences pa.BBed a.gs.inst the the a.ppella.nts and direct tha.t they be set at. liberty.

Apptal8 allcwe.d. IHI THE REGIONAL SETTLEMENT COMMISSIONER April 27. SUNDERDAS BHASIN (B. P. SINHA, c. J., P. B. GAJENDRA.GAD.KAR, K. N. WA.Nonoo, N. RA.JAGOPALA. AYYA.NGA.R a.nd T. L. VENKA.TA.RA.MA. AIY AR, JJ.) Rthahilitation of DUp/actd per.!OM-Compenaation for rural buildill{l1-Not payabl< for rural building valtud at IU4 than&. 10,000-More than cme rural building each valutd"" lw than Ra. 10,000-Wht.th<r valti< ean be add<d up to reaeh total of Rs 10,000-Displaeed Perll01&8 (CompeMaation and R<Mbilitation), Ru/.,, r. 65. The respondent, a displaced person, had agricultural land as well as houses in the rural area in what iJ now Wcat Pakistan. Each house was valued at ICM than Rs. 10,000J· but the total value of all the houses was more than Rs. I 0,000/-. He was allowed 2-1/2 acres of land in lieu of the agricultural land left by him. He applied for compensation for the rural hOU3CJ, This claim was rejected on the !!"Ound that It was barred by r.

65 Displaced Persons (Compensation and Rehabilitation) Rules. Ruic 65(2) provided that any person to whom less than 4 acrea of agricultural land had been allotted shall not be entitled to receive compcnoation sepa'tately in respect of any rural building the assessed value of which was less than Rs. I0,000/-. The respondent contended that in order to determine the limit of Rs. 10,000 in r. 65(2) the value of all the rural buildingi should be added up. Htld, that r. 65(2) applied to the ca"' and the ""J'llR• dent was not entitled to compensation for the rural bOUlcs left by him in Pallitan. When r. 65(2) spcal<s of any l;uildlng the assessed value of which iJ Rs. I 0,000/- it refers to each building being of less than that value; docs not