Adami, J.[After discussing the facts, His Lordship proceeded:]

2. The chief evidence then as to the occurrence is the statement of these two witnesses, the production of the blood-stained tangi by the appellant himself, and the confession which the appellant made.

3. With regard to this confession Mr. Prasad has urged before us that it is inadmissible in that the Deputy Magistrate who recorded it did not sign the certificate which is prescribed by the Code as now amended; he signed the certificate which was in use under the old Code. He urges too that the appellant was not asked if he made the statement voluntarily. With regard to this, the question put to the appellant by the Deputy Magistrate was:

Are you prepared to make a statement of your own free will

4. And surely that is equivalent to asking him whether he made the statement voluntarily. The record of the confession too does not show that the appellant was warned that he was not bound to make a confession and that if he did, it might be used in evidence against him. However, owing to this omission, the Deputy Magistrate himself was called as a witness and in his evidence he has said, in clear terms, that he cautioned the accused, explaining to him that he was not bound to make any statement and that if he did so, it might, be used in evidence against him.

5. Mr. Prasad has relied on two cases that of Queen-Empress v. Viran (1886) 9 Mad. 224 and Farid v. The Crown AIR 1922 Lah. 237, in arguing that owing to defects the provisions of Section 533 of the Code of Criminal Procedure cannot cure the defect and make the confessions admissible. In the former case, the confession was found to have violated all the provisions of Section 164; in the latter case there was a failure to ask whether the confession was made voluntarily and I am not inclined to agree with the finding in the latter case. In the case of Maksud Ali v. King Emperor AIR 1921 Pat. 337 Jwala Prasad and Sultan Ahmed, JJ. decided that the evidence of the recording Magistrate that he had observed all the provisions of Section 164 was sufficient. In my mind, there is no doubt that the present confession as recorded is admissible in this case, especially since the Deputy Magistrate has been examined and has shown that he observed the provision of the law.

6. His Lordship while discussing evidence, referred to the confession attributed to the appellant and proceeded:

7. We have to remember that the confession of Ramai was retracted and he went so far as to state that he never made any statement at all to the Deputy Magistrate. This confession, therefore cannot be given any weight unless it is well corroborated by reliable evidence and I think that in the evidence of Palo and Damu, as well as in the evidence of the witnesses as to what subsequently occurred, we have strong corroboration of the confession.

8. (His Lordship continuing his discussion on the evidence, concluded by confirming the conviction and sentence passed by the lower Court.)

Bucknill, J.

9. I agree.