P (PLP)

(d) Confession‑Extra judicial‑To be viewed with extreme Caution. It has been frequently held that in the case of extra judicial confessions they must be viewed with extreme caution owing to the possibility of some mistake or malice of the witnesses concerned, misuse of words, or from infirmity of memory. (e) Evidence Act (I of 1872), S. 26‑Confession made while in custody of Military Police‑Whether inadmissible. The object of protecting persons against making confessions while in police custody cannot apply to a case in which a member of the Armed Forces is in temporary Military Police custody. The provisions of the law are to the effect that persons must be protect ed from the natural fear of the consequences ensuing from possible ill‑treatment by the Civil Police for their failure to do as the police wish and it is with that object alone that the necessary safeguards have been provided. But the law as it stands does not in my opinion, extend to the case of Military personnel in tem porary Military Police custody. Public Prosecutor, for Crown. Mirza Mohammad Ahmed, for Accused. JUDGMENT: This is an appeal under the provisions of section 417 Criminal Procedure Code against a Judgment dated 31st January 1950 passed by the Sessions Judge in Baluchistan whereby the accused respondent was acquitted of offences which were alleged to have been committed by him under sections 376/377, Pakistan Penal Code. The facts of the case, as alleged by the prosecution have al ready been stated in the judgment of the learned Sessions judge, but for clarity I propose to reiterate them briefly in this order. It is alleged that the accused respondent on the afternoon of the 25th August 1948 met a certain girl named Mirza Begum aged about 10 years when she was returning from the market. The accused respondent asked the girl to accompany him, but when she declined to do so he placed her on his cycle, having wrapped her with a chadar, and took her to a vacant kitchen in the certain Military Lines. On entering the kitchen he ordered her to remove her shalwar, and on her refusal to do so the accused respondent is alleged to have thrown her on the floor, removed her shalwar, and committed sodomy. Later he is alleged to have turned the girl over and to have raped her. Ali Jan, Chaukidar of the Lines, on hearing screaming, arrived at the scene and looked through the window. He noticed that the girl was lying on the floor on her back with the accused‑respondent lying on the top of her The Chaukidar then entered the kitchen when the accused got up and pulled up his trousers. The Chaukidar caught hold of the accused and took him outside. In the meanwhile another Chauki dar, Kala Khan arrived, but the accused wrenched himself away from Ali Jan, mounted his cycle and rode off. A third Chaukidar, namely Gut Mohd. who happened to be cycling passed at the time, apprehended the accused when Ali Jan and Kala Klan shouted to him, The accused was then taken to the Lines of the P. A. O. C. where a report was made to the Subedar or duty. The accused was then placed under arrest and the police were in formed. The police then sent both the accused and the girl to the Civil Hospital for examination and it was revealed that both rape and sodomy had been committed on the girl within recent period. The girl's clothes, as well as those of the accused were sent for chemical analysis, and the accused was produced before a Magis trate for recording his confession which now forms part of the record. Before I proceed to examine the case, both for the prosecu tion and for the defence, it is necessary for me to reiterate that the cardinal principles followed by this Court in cases relating to appeals from acquittal are that an accused person who has once been acquitted should not be found guilty unless it is obvious from the facts of the case and the judgment of the lower Court that a completely perverse view of the evidence has been taken. My attention has been invited to the remarks of this Court made in a similar appeal appearing in P. L. D. 1950 Baluchistan P. 13 and as the views expressed in this judgment were my own I find no reason to take another point of, view in the case now before me. It will therefore be necessary for me to be satisfied completely, firstly, that the evidence recorded on behalf of the prosecution, leaves no element of doubt whatsoever that the accused respondent was guilty of the crime or crimes of which he has been accused, and, secondly, that the lower Court has erred very materially to the extent of being completely perverse in acquitting the accused.' I need not here enlarge further on this elementary principle of justice in dealing with cases of appeals against acquittal except to observe that my judgment in this case will be guided by this principle. It is however, a well accepted principle that cases of this nature are at large before the Court both as to the facts and the law. The first fact which emerges, and which has not been denied on behalf of the accused‑respondent, is that both sodomy and rape had recently been committed on the girl Mirza Begum. This is not only in evidence from the girl herself but is also supported by unrebutted medical evidence after her examination in the Civil Hospital soon after the alleged offence against her was committed. The issue before me is therefore reduced to a relatively simple one, namely, whether the accused respondent was guilty of the offences or whether, as an unfortunate result of mistaken identity, some other person committed the offences against the girl. Before proceeding to examine the oral evidence adduced on behalf of the prosecution, it is first necessary for me to take into consideration the confession which the accused‑respondent made before a Magistrate. I do not refer in this order at this stage to the extra‑judicial confession he made to a Subedar in the Lines. In recording this confession the Magistrate concerned complied fully with the provisions of Section 164 and Section 364, Criminal Procedure Code. I also observe that the Magistrate further gave time for the accused‑respondent to reflect before he was called upon to make his confession. The Magistrate has been examined as a prosecution witness (P. W. 7). This confession was retracted in the Sessions Court in the statement made by the accused in that Court. The grounds for retraction are to the effect that the accused‑respondent had been threatened by the police that he would not be released until he had made a confession. This allegation is unsupported by any form of evidence and I cannot place undue reliance upon it, as it is not uncommon for persons who retract confessions to accuse the Police either of beating them or of threatening them. It has been held by a Division Bench of the Nagpur High Court in A. I. R. (36 1949 Nagpur) 405 that `undo: the law, a confession must be presumed to be made voluntarily unless the contrary is proved.' With this view I am disposed to agree for there is no evidence in the case before me that the con fession was not made voluntarily except for the retracted statement of the accused‑respondent at his trial. It is clear also from the record that the Magistrate who recorded the confession complied with the provisions of the law in taking care to ask the accused whether his statement was a voluntary one. In absence of evi dence to the contrary, I can only come to the conclusion that the confession was of a voluntary nature. I further observe that the offences were alleged to have been committed on August 25th while the accused made his confession the next day. The accused was therefore only in police custody a few hour. He could not lave been subjected to long mental or physical torture by the police, to extract a confession from him. I therefore propose to deal with the confession as it stands and to come to a conclusion on its evidentiary value against the accused respondent. The accused respondent in his confession does not admit the offences with which he was charged. He merely states that he was enticed by the girl concerned to commit intercourse with her on payment Money but that penetration was not effected and therefore the two Crimes of sodomy and rape have not been committed. The confession as such cannot be used in its entirety to confirm the actual offences which are alleged to have been committed. But at the same time I feel that this confession, which is a partial confession of guilt, cannot be discarded in toto. Parts of the confession cars, and should be taken into consideration with other corroborative evidence to prove whether or not the accused‑respondent did in fact commit the crimes of which he has been accused. Mirza, J. in A. I. R. 1929 Bombay P. 327 held that "a confession in order to be relied upon need not make a clean breast of all the details in connection with the crime, but if the Court is satisfied that it ha: been voluntarily made, it may take into consideration such part of it as it may by itself or in the light of the other evidence in the case consider to be true". With these views I am in entire agreement for in the case before me, the confession recorded, while not being a confession of guilt as to the two crimes alleged to hay; been committed, is a confession of a less serious nature in itself Criminal. I propose therefore, to accept subject to other corrobora tive evidence the fact that the accused respondent associated himself with the girl Mirza Begum on the day and at the time the alleged offences were committed. The grounds for discarding this evidence in the lower Court, as disclosed in the judgment of the learned Sessions judge, are that the confession does not state that either rape or sodomy was committed. But for the reasons stated above, I cannot accept this opinion as a valid argument for totally disregarding the confession made. If by other corroborative evidence, it is proved to my satisfaction that the accused‑respondent and the girl were associated on this clay in the manner narrated in the confession there will be the irresistible conclusion that as recent sodomy and rape had been committed on this girl of tender age, the accused‑respondent must have been responsible for these crimes and not for the less serious offence of which he makes mention in his confession. I now come to the question of other evi dence against the accused. I observe from the record that the trial in the Sessions Court took place about one year after the alleged offences had been committed. It has been argued before me on behalf of the accused‑respondent that the evidence of the minor girl is unreliable and must therefore be discarded. While there are indications that discrepancies have occurred, particularly when this witness was cross‑examined, I must also take into consi deration the fact that she was of very tender age and that her evi dence was recorded a year later. Moreover, the discrepancies which have occurred are in my considered opinion only of a minor nature. Human memory being as it is, it is more than probable that a grown‑up and mature person would be unable to recollect, with complete accuracy, the minor details of some incident which occurred as long as a year ago. In the case of a girl of tender age, the ability to remember must be even less and I am not disposed to discard the evidence of this witness merely for the sake of minor discrepancies which have occurred in her evidence. These relate mainly to her denial or admission of what she actually stated to the police and what she stated in evidence before the committal Magistrate. None of these discrepancies are in my opinion suffi cient to shake her evidence about the main facts of what took place on that day. More serious, however, might be considered the fact that this girl was unable to identify the accused‑respondent in Court; and it must be arguable to what extent her inability to identify the accus ed goes in his favour. It is a fact that the accused‑respondent and this girl were complete strangers to each other until the day of the alleged offences. It follows therefore, that when, some months later, this girl saw the accused in the committal Magis trate's Court, she might well have been unable to identify a complete stranger even though he had committed certain heinous offences against her some months previously. I do not, therefore feel dis posed to assume on the doubtful evidence of this witness about identity, that it was not the accused who committed these offences if there is, other evidence identifying him. The most valuable evidence for the prosecution in this case apart from the girl, is undoubtedly that of P. W. 4 Ali Jan who was an eye‑witness to the incident. Apart from his evidence catching the accused in flagrante delicto, there is nothing on record to show that he had any doubt in his mind about the identity of the accused‑respondent in Court. While not called upon to give evidence of identity, in referring to the accused, he could only have meant the person appearing as the accused in Court. The evidence of this witness coupled with that of the remaining Chaukidar, Kala Khan, must be taken into consideration. There has been no argument before me that these Chaukidar witnesses, were in any way biased against the accused for personal reasons. In fact, neither of them have ever seen him before the day on which these offences occur red. Argument has however been adduced before‑me to the effect that there are certain discrepancies in their evidence, namely that as these witnesses only knew Pushtu it would have been impos sible for them either to communicate with the girl or with the accused. It is recorded below the statements of these witnesses that they gave their evidence in Pushtu. On the other hand, these witnesses are local Pathans, and being employed as Chaukidars, it was reasonable to assume that their standard of education was not high and that as Pushtu was their mother‑tongue they would prefer that their evidence should be recorded in that language. It does not by any means follow that they were completely unable to communicate with anybody else in any other tongue, and in this connection I observe from the evidence of D. W. 3 in whose cross-examination it is stated that one of the Chaukidars appeared to be a Pathan and spoke broken Urdu. He also spoke in Pushtu. I do not consider therefore that this argument is a particularly strong form of defence in favour of the accused and I discard it accordingly. Apart from the evidence of these Chaukidars, the accused was produced before a Military Officer and other witnesses. I come next to the evidence relating to the extra‑judicial con fession alleged to have been made by the accused‑respondent to Subedar Yasin Mohd. P. W. 6, It has been frequently held that in the case of extra‑judicial confessions they must be viewed with extreme caution owing to the possibility of some mistake or malice of the witnesses concerned, misuse of words, or from infirmity of memory. While I accept the view that extreme caution must be exercised, I will proceed to consider this extra‑judicial confession in terms of the circumstances of this particular case. The accused respondent is a member of the Armed Forces and the witness, to whom he is alleged to have made this extra‑judicial confession, is a Junior Commissioned Officer. There is nothing on record to indicate that this witness was in any way biased towards the accused. He has given in evidence that the accused respondent stated he had illicit intercourse with the girl Mirza Begum. The witness then ordered the confinement of the accused‑respondent in the Quarter‑Guard and subsequently handed him over to the police. In this case, therefore, there is nothing of a complicated or difficult nature relating to this alleged confession. It was beyond the bounds of possibility for the witness concerned to have misunder stood what the accused‑respondent said or to have made any mis take in identity, for there is only one accused in this case. The learned Sessions Judge makes no mention of this important evi dence in his judgment though it has been argued on behalf of the accused‑respondent that as he was produced before this witness, Subedar Yasin Mohd. in police custody his extra‑judicial confession must be discarded. I observe, however, that the accused respond ent was produced by a member of the Military Police. I feel convinced that the object of protecting persons against making confessions while in police custody cannot apply to a case in which al member of the Armed Forces is in temporary Military Police custody. The provisions of the law are to the effect that persons must be protected from the natural fear of the consequences ensu ing from possible ill‑treatment by the Civil Police for their failure to do as the police wish, and it is with that object alone that the neces sary safeguards have been provided. But the law as it stands (foes riot, in my opinion, extend to the case of Military personnel in temporary Military Police custody. Nor has any ruling of any High Court to this effect been produced in support of this argu ment. Moreover, the evidence of Subedar Yasin Mohd. merely indi cates that the accused‑respondent was brought before him by an S. I, of the Military Police though he bad not been in Military Police custody for any length of time. I would, therefore be reluct ant to discard this important evidence which has apparently been overlooked by the learned Sessions Judge. In regard to extra‑judi cial confessions I have read the judgment of a Division Bench of the Oudh High Court‑A. I. R. 1928 Oudh 393 in which inter alia, the learned judges come to the conclusion that an extra‑judicial confession made to a trustworthy witness may be as strong evidence against an accused as a confession before a Magistrate. It. was further held that such a confession requires no corrobora tion. In this case I have no reason to doubt the trustworthiness of the witness to whom the accused is alleged to have made a con fession and though I would be reluctant to accept this confession without corroboration, it must, I feel, be taken into consideration read with other evidence in support thereof. I next come to the evidence on behalf of the accused respond ent. The evidence is entirely oral and is some endeavour to pro duce an alibi on behalf of the accused‑respondent. While I do not assume the evidence of the various defence witnesses to be unreliable, they by no means go to prove that the accused‑respondent himself was elsewhere at the time and date of the commission of the crimes. In fact, the majority of the defence witnesses clearly state that the accused‑respondent was in the station on the day in question, though, it was alleged he was either leaving Quetta that day or the following day. The value of this evidence is therefore of no avail whatsoever to the accused respondent and I must discard it. I now propose to sum up the case as it stands against the accused‑respondent Firstly, there is the judicial confession upon which, for reasons stated, I am prepared to rely to prove the association on the day in question between the girl Mirza Begum and the accused respondent. Secondly, there is the evidence of the two Chaukidars, one of whom was an actual eye‑witness and whose evidence as to the identity stands unrebutted. Thirdly, there is the extra‑judicial confession which supports the evidence of the Chaukidar the eye‑witness. Finally, there is the evidence of the girl Mirza Begum herself, coupled with the medical evidence to the effect that sodomy and rape had been committed upon her recently. If all these facts are taken into consideration together, there can be only one possible conclusion' to be drawn from this evidence. As I have already stated there is no defence and in the face of the overwhelming evidence, there is no doubt whatever in my mind that the accused‑respondent was responsible for these crimes. This is no case of mistaken identity as the lower Court' has attempted to infer, the accused was caught by Ali Jan, Chaukidar, in the act and was subsequently identified by him in Court. It would be difficult to find stronger evidence in a case of this nature where there was an actual eye‑witness to the offence itself; where the accused had been caught red‑handed: where he has made an extra-judicial confession, where he has made a judicial confession, and finally where he is unable to produce any sound defence as to alibi. The lower Court has, in my opinion, taken a completely erroneous view of the evidence. The extra‑judicial confession has been ignored the judicial confession has been discarded completely for reasons which are totally illogical and the evidence of the witnesses Ali Jan about the identity of the accused and what took place has been disbelieved. In the case of the evidence of the girl Mirza Begum, her failure to identify accused‑respondent in the committal Court has led to the complete discarding of the evidence and to the disbelief of the prosecution story. The age of this witness, her association with the accused for a short space of time on one day only, arid the fact that she saw the 'accused months later at his trial were never considered. Accordingly, I accept the Crown appeal and reverse the judgment of the learned Sessions Judge. The accused‑respondent is found guilty of the offences alleged against him and I accordingly convict him under sections 376/377 Pakistan Penal Code. In considering all the circumstances of the case, I can find no extenuating circumstances which go in favour of the accused‑res pondent. This unfortunate girl was aged only 10 years and a re volting crime was committed against her for which there can be no possible excuse. I am therefore unable to take a lenient view of this case. Accordingly, I sentence the accused to 7 years' rigorous imprisonment and a fine of Rs. 100, or in default of payment of fine to a further term of 3 months' rigorous imprisonment under each count. The substantive sentences of imprisonment shall run con currently. A. H. Appeal accepted.