“6. It is contended for the appellant that this confession cannot be acted upon, firstly because it is not voluntary, and secondly because there is no evidence worth the name to corroborate it. On the question whether Exhibit P-15 was voluntary, the cardinal feature to be noted is that the appellant was kept separately in the custody of the C.I.D. Inspector (PW 33) from the 7th August to 20th August, and the confession was recorded on the 21st August. It appears to us that the prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp Exhibit P-15 as involuntary. PW 33 made no attempt to explain this unusual circumstance. It is true that with reference to this matter the appellant made various suggestions in the cross-examination of PW 33, such as that he was given bhang and liquor, or shown pictures, or promised to be made an approver, and they have been rejected—and rightly—as unfounded. But that does not relieve the prosecution from its duty of positively establishing that the confession was voluntary, and for that purpose, it was necessary to prove the circumstances under which this unusual step was taken. There being no such evidence, we are unable to act upon Exhibit P-15, as a voluntary confession. It was argued that better evidence was not forthcoming, as the investigation by PW 32 was, as already stated, halfhearted and perfunctory, and no adequate steps were taken to secure evidence before PW 33 took up the matter on 18-7-1952. All this is true, and the result is no doubt very unfortunate; but that does not cure the defect from which Exhibit P-15 suffers. It was also argued that both the courts below had found that Exhibit P-15 was voluntary, and that that was a finding with which this Court would not interfere in special appeal. But then, the courts below have, in coming to that conclusion, failed to note that PW 33 has offered no explanation for keeping the appellant in separate custody from the 7th to 20th August, and that is a matter which the prosecution had to explain, if the confession made on 21-8-1952 was to be accepted as voluntary. In this view, the only substantive evidence against the appellant. Exhibit P-15, falls to the ground, and in strictness, the further questions whether that has been corroborated by the evidence of PWs 13 and 15, and whether Exhibits P-5 and P-6 lend assurance to it do not arise.”
