K. Lahiri, J.
1. The true role of a Judge trying a criminal case has been underscored by the Supreme Court in : 1981CriLJ609 , Ramchander v. State of Haryana. Chinnappa Reddy, J., speaking for the Supreme Court has outlined instructive guidelines for the trying Judges which must put all the Judges, on gear. Drawing inspirations from 'The History of English Law' by Pollock and Maitland to Jones v. National Coal Board (1957) 2 All ER 155 : (1957) 2 WLR 760 and instructive observations of his Lordship in ILR (1972) Andh Pra 683 : 1972 Cri LJ 1485, Sessions Judge, Nellora v. Intha Ramana Reddy, it has been ruled that in adversary system of trial which we have in India, the trying Judge should shun the role of 'a referee' or 'an umpire' to permit the prosecution and the defence to combat in the legal arena. He should assume an active role in the proceedings.''The trial Judge must be an effective instrument in dispensing justice; he must cease to be a spectator, a mere recording machine. The trial Judge must be a participant in the proceedings with the sole objective to ascertain the truth. 'Truth finding' 7s the sole job of the Judges. However his Lordship has warned in no uncertain manner, that while participating in the proceeding, the trial Judge should not unduly trespass upon the functioning of the public prosecutor or the defence counsel nor should the Court exhibit any partisanship or make any gesture to frighten or bully the witnesses. While dealing with the provisions of Section 165 of the Evidence Act and Section 172 of the Cr. P. C, his Lordship observed, 'Every criminal case is a voyage in which the truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and advance the cause of justice...Section 172 (2) of the Cr. P. C. enables the Court to send for the police diaries in a case and use them to aid in the trial. The record of the proceeding of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.'
This is the true role of a trial Judge.
2-3. Has the learned Sessions Judge who has despatched the indigent accused to guillotine played his part of the game ?
While performing the duty of investigation the police carry out 'a sacred public duty'. The noble objective of investigation is to enable the Court to find out truth. The police, who have been put in trust of investigation by the will of the people must bear that 'the people's trust' or the 'public trust' should not be shaken by unseemly, unbecoming, improper, partial and biased investigation. The police must fairly and squarely investigate the cases of the prosecutor as well as the accused. In our system of jurisprudence, the burden to unearth a case is entirely entrusted upon the police. In most of the cases, the accused are poor and the responsibilities of the investigating agencies are very onerous. The police, under the constitutional mandate, are obliged to see that proper 'Justice' is dispensed and the guilty is punished. It is never the duty of the police to hook a suspect at any cost, nor is it the function of the police to eschew investigation of the case appearing in favour of the accused. The police must make antiseptic investigations — it should leave no germs or virus of reasonable doubts nor should the investigating agency exhibit imbalance in favour of either party. An able investigator should not leave germs of apparent doubts or suspicions; they should be resolved at the investigation stage, as far as possible. An antiseptic investigation establishes a case beyond reasonable doubt whereas germful investigation where lurk doubts and suspicions, eat up the foundation of an otherwise strong prosecution case and the Courts are compelled to acquit the accused on benefit of doubt.
Has the investigation agency performed its duties which it was obliged to do under the Constitution of India and the laws Have the judicial officers who came in aid of the investigating agency performed their duties to elucidate truth and nothing but truth? I shall answer the questions posed in this unfortunate case, where the appellant was given the CAPITAL punishment — the death penalty.
4. By applying the rule of logic, we conclude, that the case where the appellant was condemned to death by the Sessions Judge was surely an important case with serious consequence involved. It sounds, a tell-tale story but it is as true as steel that in the instant case the learned Sessions Judge appointed State defence for the indigent accused on the date of trial when the previously appointed State defence was found absent. So the learned Judge in a case which could result in capital punishment, without caring for the consequences, 'persuaded' a fresh lawyer to take up the brief and to cross-examine the two most important witnesses on the very same date and left the conduct of the case with the new lawyer. The Sessions case was posted for hearing on 20-1-1981. The Judge found the appointed State Defence absent, waited for him till 11.45 A. M. and then what the Judge did, in his own words, 'then Shri Kasem was persuaded to be State Defence Counsel'. The learned Counsel expressed his inability to cross-examine the witnesses other than two official witnesses 'for want of preparation'; the brief was handed over to the Counsel upon his appointment and he was asked to cross-examine the two vital witnesses on whose testimony the fate of the accused was sealed. The two witnesses are P.W. 1 Sri P. K. Das, learned Magistrate who had recorded the confessional statement and P.W. 2 Sri G. K. Deka, learned Magistrate who had recorded the statement of the important witnesses Under Section 164 of the Cr. P. C. and held the inquest. Is it meting out justice to appoint a lawyer on the date of trial when the accused was charged with a grave offence of MURDER? Can it be reasonably concluded that it was just and expedient, proper and rational for any Judge to hand over a brief of such an important case to a new lawyer, call upon him to prepare the case and cross-examine the witnesses forthwith? I feel that the accused was consigned to death on the date of the commencement of the trial It was humanly impossible even for a matured lawyer to prepare the case without instructions and without having at least a fortnight's time to prepare the case. It was a complicated case and very many intricate questions of law and facts were involved. It was not the fault of the Counsel who was 'persuaded' by the Judge to accept the brief. Undoubtedly the advocate could not refuse to accept the brief to incur the displeasure of the highest officer of the subordinate judiciary. This is why we find that it missed the counsel to object to examination of Shri G. C. Deka, Magistrate, who had recorded the statement of the witnesses Under Section 164 of the Code before the cross-examinations of P. Ws. 3, 4, 5 and 6. In fitness of things, the learned Judge should have examined the Magistrate after the examination of P. Ws. 3, 4, 5 and 6 was over. Vital contradictions of the witnesses could not be proved by the newly appointed lawyer as he had no time to prepare the case. The learned Magistrate who had recorded the confession could not be properly cross-examined for the obvious reason. The learned Magistrate stated that the accused was arrested on 14-12-76 and produced before him on the 17th. The detention by the police was not only suspicious but illegal and violative of the procedural law. It missed the notice of the learned Counsel that 'The Judges Rules' or the Executive Instructions of the High Court were abided by the Magistrate to be violated. It is unthinkable that in a Sessions case where the punishment was death, a responsible Judge could appoint a lawyer for the indigent accused, on the date of the commencement of the trial and 'persuade' the lawyer to cross-examine forthwith the two vital witnesses and ask him to continue with the trial which was concluded on the 2nd day in so far as recording of the evidence was concerned. It was a mockery and travesty of trial. Legal aid was given to be denied. I am of the opinion that the accused was deprived of trial and deprived of his constitutional as well as statutory right of being defended by a lawyer. The trial was vitiated and on this ground alone the appeal must be allowed. The reason for the apathy is not far to seek — the accused was poor and that was his grave crime.
5. What the police did in the name of fair investigation They commenced investigation from 14-12-76. The police diary reveals a sad story. The learned public Prosecutor had to concede that the pagination of the police diary was irregular, disorderly, messy and unsystematic. The diary commenced from page 10 and the serial numbers of the police diary read as 30, 33, 38, 39, 42, 45, 48, 51, 56, 57, 60, 63, 68, 69, 72, 75, 78, 81, 84, 87, 90, 93, 96, 1, 4, 7, 10, 13, 46 etc. We have perused the police diary and were shocked and exclaimed, how could it be thus maintained This was revealed when the counsel for the indigent accused challenged the regularity of maintenance of the diary. Counsel for the accused further urged that there was no record of the investigation from the 14th till the 18th. In reply, the learned Public Prosecutor stated that the police diary contained the records of investigation from the 14th Dec, 1976 onwards. On perusal of the police diary, we find that at the first page, viz., page 10 of the police diary, it was shown that the investigation was in respect of P.S. Case No. 12 Under Sections 302/202, IPC dated 16-12-76, but the contents were the records of the investigation dated 14-12-76. We are at a loss how the police case No. 12 dated 16-12-76 could show records of investigation dated 14-12-76. The relevant extracts of the police diary read: 'Under Section 172, Cr. P. C. No. 12 Sections 320/201, IPC dated 16-12-76. Police Station Bngn. M case 6 dated 14-12-76'. The learned Public Prosecutor has failed to explain how the case registered on 16-12-76 could contain the record of the investigation prior to that date, viz., the 14th and 15th Dec, 1976. Therefore, the recording of the police investigation of the 14th and 15th were undoubtedly post-dated (?) recording. Where is the original case diary where the result of the investigation of the 14th and 15th had been recorded It was not produced in Court. Therefore, the police diary produced and claimed as the basis of investigation, is a suspect — as it contains post dated entries. This was the nature and character of the police investigation against a helpless, poor accused. It is shocking. However, this is only one of the lapses on the part of the investigating agency. These facts were overlooked by the learned Judge.
Turning to the nature of the obligation discharged by the learned Magistrate, who went to make the inquest we find that he was oblivious of the fact that he had no jurisdiction to make the inquest, as Section 174 (4) of the Cr. P. C. does not empower a judicial Magistrate to hold such inquest. Parliament in fitness of things empowered only the Executive Magistrates to hold the inquest. Without caring to ascertain whether he had power to make such inquest, the Magistrate hurriedly went to the spot and held the inquest. Is it not startling? He did not care to inquire why the owner of the hut, where-from the dead body was allegedly recovered, was not present. No sketch map was prepared by him nor was any memorandum of the inquiry recorded. It was a slipshod inquiry by any standard.
What the learned Magistrate who recorded the confession did is another part of the sad story. He left most of the columns blank, did not care to follow 'The Judges Rules' or the mandatory instructions of the High Court as to the governing rules for recording confession. Within an hour, the learned Magistrate finished the whole hog of the entire business and got rid of the accused. During this period he made the necessary inquiries, gave the warnings, afforded time for reflection, questioned the accused and recorded the confession — alt these solemn duties were finished within only 65 minutes — to be precise. Why did he show such apathy, indifference, lack of interest and inattention to the cause of justice He derived knowledge, as he states, that the prisoner was in police custody from 14-12-76 to 17-12-76, well beyond 24 hours fixed by Sections 57 and 167 of the Cr. P. C, yet it did not create any stir in his mind as to why and how could the police detain him in custody violating the mandatory provisions of law Was it because the accused was an undefended and indigent person ?
6. These are but only a few sprinkling curious features of the case which unmask our existing socio-legal order; the poor can legitimately fume that they have even no right to live or get justice from 'any quarter' and a poor is consigned to death the moment he is born.
7. The accused was painted black. It is alleged that he killed his life-partner, a hapless woman. The accused is indigent, worked as a petty Khalasi in the Railways. He did not get any free legal aid during the course of investigation, be he was offered mock free legal aid during the trial. It is an illusion to grant free legal aid to indigent accused at the trial withholding such aid in the earlier stage of the proceedings. The accused killed his dear wife because she had requested for 20 paise. The death penalty is perhaps a very soft punishment in wife-murderer cases. But the records of the case reveal inherent human qualities of the alleged 'brute'. After the day's hard work, the accused made endeavour to eke out some more money by selling betel-nut. For whom? Unquestionably, for the members of the family. Who is the sheet-anchor of the case Who is the sole eye-witness against him His own minor daughter aged about 5/6 years. The accused pined in jail but his paternal love prompted him to endorse all his subsistence allowances in favour of his child, on whose evidence he was condemned to death. Is it possible for a man devoid of love and affection to bestow love Could an ordinary soul provide maintenance to the sole eye-witness, without asking any favour? True, this was his subsequent conduct, perhaps he was in remorse, perhaps he was repentant. But any way, the silver linings of the alleged killer, cannot be swept aside while considering his human qualities antithetical Mr. Hyde character. We cannot shut our eyes to the fact that if Jaba had perished from hunger it would have been a passport to liberty for the prisoner.
8. The prosecution case may be summarised as follows :
The accused and the members of his family were undergoing economic hardships. The accused was a poor Khalasi on the Muster Rolls of the Railways. One of his distant relations, P.W. 6 Sudhir, had a Railway Quarter No. 130 B at Old Bongaigaon. Sudhir permitted the accused to construct a 'shanty' or shed. It was attached to Sudhir's quarter. It is alleged that on 12-12-76, Moni, young and handsome wife of the accused asked for 20 paise and the accused got infuriated, assaulted her with 'Sabal' (an iron instrument for digging), spade, dagger and 'dao' and throttled her as well. In consequence she died. The entire drama was enacted in the presence of the three children, namely, P.W. 3, Buri alias Jabarani, then aged about 5 to 6 years, her younger sister and her baby brother. The accused asked P.W. 3 Jaba not to disclose as he would be arrested by the police. However, on Monday, the 13th when her father went away, she narrated the incident to P.W. 4 Dipali and P.W. 5 Mayarani. The accused asked for leave on Monday. P.W. 6 Sudhir, as well did not go for his work. However, on the 14th, the accused did attend work. It is alleged that on the 14th evening, P.W. 6 informed the Officer-in-Charge of Bongaigaon P.S. that Moni had been missing, as well as reported that she had been killed. The police came to the shanty of the accused, examined witnesses but went in search for Moni in her father's village after examination of P. Ws. 3, 4, 5 and 6. Later, the investigating officer got the statements of P.W. 3 Jaba, P.W. 4 Dipali, P. W- 5 Mayarani and P. W, 6 Sudhir recorded by the Magistrate (P.W. 2 Sri G. Deka), Under Section 164 of the Cr. P. C. On 16-12-76 in the presence of Shri G. C. Deka, Judicial Magistrate the dead body was exhumed from the hut of the accused. On the 17th, the accused was produced before a Magistrate to have his confession recorded. On the 18th his confession was recorded by P.W. 1 Sri P. K. Das, Sub-Divisional Judicial Magistrate, Goalpara. Although the alleged incident happened on 12-12-76 and the witnesses were all of Bongaigaon, the charge-sheet was submitted on 18-3-80, for no obvious reasons. In due course the case came up before the learned Sessions Judge on 21-7-80 but the trial commenced on 20-1-81 and it took only two days to record evidence. The accused was charged Under Sections 302 and 201 of the IPC The learned Judge found the accused guilty of the offences and sentenced him to death on the first count, and, naturally, he could not pass any sentence on the second count. The learned Judge believed the testimony of P.W. 3 Jaba, disbelieved the first part of the confessional statement of the accused as to the commission of the murder but believed his second part of the confession as to burial of the dead body. The learned Judge held that some circumstantial evidences were duly proved against the accused. They are, in the words of the learned Sessions Judge, as follows:—
(1). The first and the strongest circumstances against this accused is that the dead body was found buried in the one-room house of the accused himself. Who else could have done it. In para 17 of this judgment I have discussed that it was not possible for a stranger to do so.
(2) The accused stated to Sudhir on the following day that there was quarrel with his wife. He wanted him (P.W. 6) to believe that his wife is still alive and he has just quarrelled with her.
(3). In the office he applied for leave by stating that he has got some domestic work.
(4) When he found that his wife was missing and did not return home as usual, in the night, he should have lodged a Missing Entry but as he knew that his wife is dead and hence he did not care to do so.
(5) When he found that his wife did not return home as usual, in the night, he should have enquired about her in her father's house and also in the houses of other relations and her friends, neighbours etc. but as he knew that his wife is dead and hence he did not care to do so.
(6) He gave a misleading story before the Sub-Divisional Judicial Magistrate that he had killed his wife with an iron rod.
As alluded, the accused was denied proper legal aid in the instant case. We have already stated how the investigating agency showed lack of interest.
9. The three vital elements against the accused are:—
(1) the testimony of P.W. 3 Jaba, his own daughter.
(2) the discovery of his wife's dead body buried in his own room and the circumstantial evidences; and
(3) his own confessional statement.
At first blush, we were very much impressed that this was a fit case in which the learned Judge was fully justified in convicting as well as sentencing the accused. However, upon hearing the learned Counsel for the parties, we find that the prosecution had failed to prove its case against the accused.
10. Let us turn to the first vital element viz., the testimony of the eye-witness. P.W. 3 Jaba was aged 5/6 years at the time of occurrence. As such, she is a child witness. A child is a competent witness Under Section 118, Evidence Act. According to one school, the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. Children can be surely tutored, so in spite of the fact that they possess unsophisticated minds and have hardly any motive to deceive, their evidence ought to be received with great care, caution and circumspection. No corroboration is needed to support the evidence of a child witness, but it is a practice not to act on the uncorroborated testimony of a child. However, this is just a rule of prudence and not of law or rather a rule of caution. One is to find out whether a child is a witness of truth or a witness of imagination as most children of tender age generally are. Once an impression is created it becomes imbeded in the mind and the imagination plays havoc in the child's mind. If the child is the witness of truth, there is no legal bar to sustain conviction on the sole testimony of a child. However, the evidence of a child witness needs close scrutiny. Let us examine the testimony of P.W. 3 Jaba, to find out whether we can rely on her testimony. P.W. 3, depicts a fairy tale. According to her testimony we find that her father started assaulting her mother and asked P.W. 3 and the other children to be asleep and they 'slept'. But, P.W. 3 woke up on hearing cries. This is the first phase. Does it stand to scrutiny that any person would commit murder asking his children to be asleep, knowing very well that they would undoubtedly see the occurrence? Palpably, the story is unbelievable. The accused, in fitness of things would have asked them lo go out and then to commit murder which would have been surely acceptable. The next part of her story is the actual killing. We give her allowance as to the time as she stated that the killing was in the morning and in the second breath stated that it was about 3 P. M. But, let us test the veracity of her statement as to the killing or murder as pictured by her. How did the accused kill her mother? She said that her mother was assaulted with Sabal (an iron instrument), spade, dagger and dao. She stated that the accused 'hacked her neck with the dao'. She also stated in re-examination that 'Mat. Ext. 5 is a dagger with which my father cut my mother's belly and put salt there'. She also stated that her mother was cut with dao. To others, she stated that her mother was cut to pieces. Therefore, if her statement is true, her mother's belly was cut and the intestines came out, the neck of the deceased was hacked with dao blows and other sharp cutting instruments were used to kill her. Witnesses may lie but circumstances do not. When the dead body was recovered, the police made an inquest on the 16th of Dec., 1976. We were anxious to see the ghastly wounds on the dead body of the deceased, belly cut with intestines out, neck severed or partially severed and the dead body having several cut injuries. What the Police Inspector and the Magistrate found:
A cut injury on the sole of the left leg and a cut injury above the ankle joint and on rolling over the dead body', the inquest report runs, 'no other injury was found.
Therefore, can we believe that P.W. 3, Jaba was a witness of truth? Was not she a witness of imagination How could the cut injuries in the belly as well as neck and other injuries inflicted with so many sharp weapons evaporate? We have seen the photographs of the dead body. The bare parts of the body include neck and portion from toes to thighs. We do not see any cut injury anywhere except a speck of injury in the sole. It is also in evidence that this girl stated to the Magistrate that her mother was cut to pieces and buried. In our opinion, it is hardly possible to reply on the evidence of this witness as to the actual assault on Moni. We are constrained to hold that she did not see the incidence. The next part of the story is about the digging of pit and burial of the dead body. She described how the pit was dug and the dead body buried in every detail. She also stated that the instruments of assault i.e. Sabal and a bamboo basket (were) placed thereon. She contradicted this in her cross-examination and said 'at the time of the digging the hole I was not present'. If this version is correct, how could she describe in details how the hole was dug by her father and with what instruments Regarding the burial of the dead body, P.W. 4 says that the girl 'did not tell me where the dead body had been kept'. Now we find that when the dead body was exhumed, Sabal, Spade, Dao and Dagger were not found inside the pit. They were in the room all along. This we get from Ext. 4, the seizure list. It clearly shows that the instruments were seized from inside the room of the accused. These were seized on 16-12-76. Whereas, in the pit only the dead body and a sickle were found. This is another vital contradiction which could not be explained away by the prosecution. The next facet is whether the girl narrated the story of killing and burial immediately after the incident, if not, why so The girl claims that the next morning, she divulged the incident to P. Ws. 4, 5 and 6. If we turn to the evidence of p. Ws. 4, 5 and 6, recorded Under Section 164, Cr. P. C, we find that the girl made a dimetrically opposite version of the story to them. P.W. 4, Dipali stated, Under Section 164, Cr. P. C, that on Monday morning i. e. on 13th, when she had asked Jaba (P. W, 3) about her mother, she told that her mother had left her house to some destination. Similarly, P.W. 5, Maya stated that on Monday morning Jaba, on her query, told her that her mother had left their house. P.W. 4 said that the deceased used to go away like that previously as well. P.W. 6, Sudhir stated, in his statement Under Section 164 that on Monday at about 9 O'clock when he went to the house of the accused, the accused told him that he had a quarrel with his wife and he had no mind to go to office and got an application written by him. He stated that he went in search of Moni at Dangtoli. It seems true, as Sudhir did not attend office on Monday, the 13th of Dec. As such, the girl made statements to P. Ws. 4 and 6 that her mother had left the house after quarrelling with her father This is her first version of the story. The learned Judge believed the version that the accused had threatened her, he was all the time at home so the poor girl out of fear could not divulge the real story to anybody. Unfortunately, the learned Judge is absolutely incorrect. P.W. 3 Jaba, herself says that her father left the house on Monday directing her not to go out. In fact, the accused went to the office to have his leave application written. P.W. 5 stated that on Monday at about 7.30 A. M., the accused was not at home. P.W. 6 says that on the 13th he went to the shed of the accused to enquire whether the accused was going to office, and, about an hour thereafter the accused left his house. As such, the accused was away on Monday at least for some hours. The documentary evidence, 'The Attendance Register' i. e. Muster Roll: Ext. 17 shows that the accused attended his office on Tuesday, the 14th. As such, the finding of the learned Judge that the girl made the statement because of the presence of her father is erroneous. Be that as it may, why did the girl make a false statement that her mother had gone away after quarelling? This was never tutored by the accused. If the story of threat is correct, in fitness of things, she should have remained silent or could have stated that she had no knowledge. How could she build up a story about her mother going away from the house after quarrelling with her father? If the witness could 'construct' a story based on her imagination immediately after the incident, we cannot overrule the possibility of her constructing another story at a later stage of the proceeding. At any rate, we find the girl was capable of creating story based on her imagination. This is another factor which is destructive of the veracity of this witness. However, that being the first version of the story narrated on the 13th must be believed as true. It is difficult to accept the subsequent story when she had enough time to come in close contact with interested persons. Next, let us grip her story of killing and burial as relayed to P. Ws. 3, 4, 5 and 6, either on Monday or on Tuesday or on any other subsequent day and test the reactions of the witnesses. Surely, they would have visited the room, enquired in the absence of the accused to see for themselves the recent signs of digging. Does any of the witnesses say that he/she found any corroboration of the statement of the girl The instruments were very much there in the room. The place of burial was supposedly fresh. None claims to have witnessed any sign of recent digging up inside the room or the existence of the weapons of assault. The accused went out for some time on the 13th. He was in his office on the 14th, but nobody found or noticed these nor was curious enough to look at the spot of burial or to see the instruments of assault, lying in the room. What follows? It follows that the girl never told such 'a story' to any of these witnesses. Now, we travel to the next stage when the police was informed and they came to investigate the case. It is claimed that the girl made the statement and she also claims, 'I showed the police the place where the dead body had been buried'. The police examined the girl, as they claim, at the place of occurrence. Can we imagine that any sensible person would have overlooked to have a glance at the place where the dead body had been allegedly buried Can we imagine that a responsible police officer having commonsense would have left the instruments of assault lying as they were without seizing them, on the 14th itself It shows that there was no sign of burial on the 14th night, inside the 'shanty'. The girl never made such statement. This is the reason why the extracts of the police diary dated 14-12-76 and 15-12-76 were withheld from the Court. We are handicapped as the real police diary of the 14th Dec, 1976 is not before us, only sham proceedings of the 14th and 15th were recorded on the 16th or later. Therefore, we are of the firm opinion that the girl never made such statement to the police on the 14th night. If we leave this aside, we find another shocking conduct of the police who came to the place and recorded the statement of the girl. The police did not care to look at the floor where the dead body had been buried nor did they care to look for the weapons of assault or to seize them but queerly enough made a bee line for the house of Moni's father. It follows that the girl did not make any such statement to the police, nor did she show the place of burial. At any rate, the police on making on the spot enquiry of the shed or shanty, placed no reliance on the_statement of the girl Can we accept 'the version of the girl on whom even the police could not place any reliance? We have no hesitation in rejecting her statement on this ground as well.
11. Now, let us test her story with her subsequent conduct. She claims that she had seen a ghastly, brutal murder on the 12th. She was just a normal kid, aged 5/6 years. Let us see how did she behave, comport, act and bear after the incidence. If she had seen the atrocity and brutality, killing of her beloved mother the eerie upshot would have completely shattered her nervous system. But the little kid showed no sign of fear, terror, panic, horror, alarm or worry in her ways, manners, actions or deeds. Nobody noticed any change in her behaviour and comportment. She behaved just like she had behaved all along. P.W. 6 Sudhir says, he saw P.W. 3 Jaba, on the 13th morning, playing with the children. These go to show that Jaba could not have seen any such ghastly spirit (sic) but a normal child. She could not have kept her calm and comportment if in fact she had witnessed the killing.
12. Further, the deceased Moni used to run away from her home after having rows with her husband. It was not an uncommon incident. The neighbours had lost all interest in such quarrels, as the witnesses say. As such there was no earthly reason for P. Ws. 4, 5 and 6 to be so interested as to query, as they did. It appears fishy why the witnesses were so inquisitive when they had had no knowledge about any quarrel between the couple. Therefore, the questionings of P. Ws. 4, 5 and 6 and the answer of the girl that her father had cut her mother to pieces and buried the body in the room were all afterthoughts.
13. When did the girl turn turtle? Her father was arrested, as stated by P.W. 3, Jaba, on Tuesday, the 14th. The factum of arrest on the 14th has been stated by P.W. 6, Sudhir; P.W. 5 Maya was unsure whether it was 14th or 15th, P.W. 2, the Magistrate stated in his cross-examination that the accused was in police custody from 14-12-76 to 17-12-76. It shows that the accused was arrested on the 14th. The Investigating Officer made all futile endeavours to establish that the accused was arrested on the 16th. We cannot disbelieve so many witnesses. On the other hand, the documentary evidences, Exts. 3, 4 and 5 clearly show that the accused was absent on the 16th when the dead body was exhumed, seizures and inquest were made. They prove that the accused was already in police custody on or before the 16th. Were did the little girl stay after her father's arrest? She says, 'On Tuesday the police arrested my father. Since then my sister, brother and I had been living with Dada and Boudi'. The said 'Dada' and 'Boudi' are P. Ws. 6 and 5 respectively. Therefore since the 14th night the girl was under the care and custody of P.W. 6 Sudhir. The accused had been arrested. P.W. 6 Sudhir expressed his fear in connection with the case in Ext. 6. Why of all persons he had such fear The murder, if any, was committed within the compound of his quarter. He was interested. He was also on leave on the 13th. Therefore, we find that the girl was under the control of P.W. 6 Sudhir and she was taken by the police allegedly for recording her version Under Section 164, Cr. P. C. The dead body was still unrecovered. As such, nobody knew the cause of the death, including the police. Therefore, it is apparent some agency instructing the girl cooked up an imaginary case of killing by cutting the deceased to pieces by various sharp weapons and burial of the body. Accordingly, the girl vomited the imaginary story, perhaps imagining that her father was the killer as he had been arrested by the police and narrated the story which was completely contradicted by the circumstances revealed after the recovery of the dead body, viz., absence of the cut injuries. Therefore, we conclude that the poor girl was completely at the mercy of others and was a helpless 'orphan'. That she revealed a false story has been clearly set forth above. It shows that some extraneous force pictured the imaginary story in her mind and she was dictated to narrate it. Her story of relaying the incident of killing and burial on the 13th stands contradicted by the evidences of P. Ws. 4, 5 and 6 made before the Magistrate Under Section 164 of the Cr. P. C.
14. When the girl divulged different stories at different stages, when the manner of assault, the time of assault, the weapons used in the assault, the injuries caused to the deceased are all contradicted by the facts and circumstances of the case, it is hardly possible to rely on the child witness and to sustain conviction on the basis of her testimony. We are constrained to hold that she is a child of imagination and not of truth. There is another factor which compels us to reject her testimony. However, that relates to the discovery of the dead body; we shall deal with that facet while considering the question of the recovery. In short, we find that none noticed any sign of digging inside the room. On the contrary the evidence on record shows that the dead body was put inside the room thro' a hole dug from outside the shanty. It is destructive of the evidence of the girl about burial of the dead body by her father.
We cannot rely on the testimony of P. Ws. 4, 5 and 6 as to report of the girl regarding the killing and burial. P. Ws. 4, 5 and 6 made statements to the Magistrate Under Section 164 that the girl told a different story until 14th afternoon. However, in the Court of Sessions they narrated a completely different story. They asserted that the girl disclosed on the 13th itself about the incident. Their conduct in not caring to look at the place of burial notwithstanding the alleged statement of the girl makes their testimony unreliable and unbelievable. That apart, P.W. 6 Sudhir was under cloud. The incident happened in his compound. He had expressed his apprehension and sought police protection out of fear. Why had P.W. 6 such fear, if he was innocent like a flower? As alluded, the witnesses had no reason to be inquisitive, as according to their own version, Moni used to leave the house oft and on after quarrelling. It was a common incident. It is hardly possible for the close neighbours not to hear any scream or shout of the woman on the 12th, when admittedly they were inside their house, notwithstanding the alleged musical performance in a nearby house where a wedding ceremony was allegedly going on,. Their conduct in not raising hue and cry after hearing about the gruesome murder to attract attention of the neighbour is unbelievable. We are constrained to hold that in view of their contradictory statements before the Magistrate Under Section 164, Cr. P. C, their conduct and the circumstances set forth above, we cannot rely on their testimony that Jaba had narrated the incident to them on the 13th of Dec, 1976 as claimed by them.
15. Now let us turn to the discovery of the dead body which is undoubtedly a very strong circumstance against the accused. The police made every endeavour to show that the accused was arrested on 16th Dec, 1976, with positive object in view. If, in fact, the accused was arrested on the 16th, a reasonable explanation from the accused could be expected as to how the dead body could be found there when he was all along residing in the shanty. However, this attempt ended in a fiasco. P. Ws. 3, 4, 5 and 6 deposed that the accused was arrested on the 14th. This finds corroboration from the evidence of P.W. 1, Shri P. K. Das, the learned Magistrate. Therefore, we arrive at the conclusion that when the dead body was recovered, the accused was safely lodged in illegal police custody. As such, the theory of the learned Judge that the accused was a free agent on the 16th must be held to be erroneous. The next question is whether anybody noticed any sign of recent digging inside the room of the accused until the accused was arrested? We have alluded that not a single soul stated that he/she found any such mark inside the room of the accused. The accused was intermittently away on the 13th and attended his office on the 14th. P.W. 6 came to the shanty on the 13th morning and allegedly heard about the digging of the grave inside the room from P.W. 3 Jaba, after her father had left the house. How queer that P.W. 6 Sudhir as well did not notice any sign of recent digging As such, it can be safely concluded that there was no sign of digging of any pit inside the room until the accused was arrested, at least not noticed by any of the witnesses, viz., P. Ws. 4, 5 and 6. Could it be possible for the witnesses not to be inquisitive and to have a look at the spot? Impossible, is the only conclusion that we draw, basing on the natural conduct of reasonable, prudent human being. Next, we find that a responsible police officer, the Officer-in-Charge of the Police Station, himself visited the hut, recorded the statement of the witnesses; the prosecution claims that the girl had narrated the story to the police officer. We have already rejected that part of the story as unbelievable. We are sure that the girl could not have made that statement. If she would have made the statement, the officer would have undoubtedly inspected the place of burial, which he did not. No reasonable police officer would have omitted to notice the spot, had the girl made the statement. But the fact remains that he came to enquire into a murder case and surely visited the shanty. In fitness of things, the least that we expected of the police officer was to inspect carefully the shanty and the surrounding areas. Surely, he would have noticed on the 14th some suspicious signs of digging. But he did not notice. As such, there was no mark of digging till the accused was arrested. Thereafter, P.W. 2, Shri Deka, Magistrate was brought to exhume the dead body. Now, let us see whether he noticed any sign of digging inside the house. The learned Magistrate has not stated that he found any sign of digging inside the room; the body was exhumed when the accused was in illegal police custody. The witness said that a spade, an iron shiprang, dao and dagger were seized from inside the room. The witness said in his cross-examination that the surface of the land of burial was not hand-plastered. He makes it clear that there was no digging inside the house. He stated, 'More than half of the dead body was inside the house and the rest was outside the wall. The hole was dug from outside'. The evidence pointedly shows that the digging of the hole was from outside and as such there was no mark of digging inside the room. It further follows that the dead body was put thro' the hole inside the room by digging hole ''from outside'. Therefore, the dead body was put from outside ‘thro' a hole dug from outside by somebody Now, this is destructive of the evidence of P.W. 3. The fact that the dead body was put from outside establishes that P. Ws. 4, 5 and 6 rightly did not find any sign of digging inside the room. As such, the prosecution case that the accused dug and buried the dead body inside his room is falsified from the circumstances found by the learned Magistrate. Now, we find as to why no sketch map was proved in this case. Any sketch map would have shown non-existence of any sign of digging inside the room. The police diary is suspect and we cannot take resort to the police diary. In the seizure lists of the dead body and the weapons as well as the inquest report, we do not find any signature of the accused. It shows that he was not produced by the police to witness the inquest proceedings. In our opinion, the learned Magistrate holding the in-quest' should have called upon the police to produce the accused. It is a fatal omission. Now, we arrive at the conclusion that the dead body was recovered after the arrest of the accused, there was no mark of digging inside the room and that' the dead body was put thro' a hole dug from outside. These destroy the entire structure of the prosecution case. It does not stand to scrutiny that of all persons the accused would have killed his wife inside the room, dug a hole from outside, to put his wife's dead body inside his room by digging the hole in that manner. It establishes that the dead body must have been put inside thro' the hole from outside 'the shanty' by someone other than the accused. If the accused would have been present, he could have surely told the learned Magistrate holding the inquest about the case framed against him and the learned Magistrate would have certainly recorded the queer placement of the dead body. This brings us to another facet of the police investigation. How comes Ext. 6, the Ejahar? Undoubtedly, it was introduced later. It does not bear the seal of the Police Station nor any signature of any police officer about its receipt. We cannot believe that an Officer-in-charge of the Police Station would have ignored it and continued to investigate the case although it contained allegation of murder and concealment of dead body inside the room. Any reasonable police officer would have treated this as the first information report. It was brought in after the investigation proceeded to support the case that the allegation of murder and concealment of the dead body had been reported earlier to the arrest of the accused. We have no hesitation to reject Ext. 6 which is an afterthought and introduced later by the prosecution to support its case. Can we believe that the police officer after noticing any sign of digging would have gone in search of the dead woman? Can we believe that a responsible police officer having knowledge of burial of the dead body inside the room could have missed to note the place All the allegations in the statement of the girl about the burial of the dead body on the 14th were created for the purpose of the case. Now comes the question as to whether the room, after the arrest of the accused on the 14th was untenanted? The accused was arrested on the 14th. The girl says that after the arrest of her father she lived with P. Ws. 5 and 6. So, the house remained untenanted and we can assume that the police must have locked and sealed the room. As such, nobody could enter the room and the killer dug the hole from outside and put the dead body inside the room to lay the blame on the indigent accused. From these facts and circumstances, we are constrained to hold that the dead body was never buried by the accused, in the manner alleged by the prosecution, inside his room. We are constrained to hold that the dead body was surely put inside the room by somebody and that too from outside by digging a hole from outside. As such, we hold that the prosecution has failed to prove the circumstance beyond reasonable doubt against the accused.
16. The other circumstantial evidences are not compatible with the guilt of the accused. The alleged statement of the accused to P.W. 6 Sudhir that the accused had a quarrel with his wife was not put to the accused by the learned Judge. This apart, the quarrel was not an unusual phenomenon, rather it was the way of life of the couple. It is a neutral factor. The next circumstance, that the accused applied for leave on Monday is also a neutral factor. It was natural that the accused wanted to stay back home as his wife was away. P.W. 6 Sudhir also did not attend office. This factor does not establish the crime alleged against the accused. Non-lodgment of Missing Entry on the 13th or even on the 14th is not at all a circumstantial evidence. When quarrels took place at regular intervals, non-lodgment of Missing Entry is not at all relevant. The accused expected that his wife would return back as usual, and this has been clearly explained by him. No poor and illiterate person lodges any Missing Entry when his wife temporarily leaves for her parent's place. The learned Judge expected too much from a common man. The next circumstance as to the reluctance of the accused to go to his father-in-law's place to enquire about Moni, is never an unusual circumstance to fasten the liability to the accused in the offence. These are merely circumstances and are not circumstantial evidences incompatible with the innocence of the accused. The learned Judge committed an error in holding that the alleged confessional statement of the accused that he had killed his wife with an iron rod, a misleading story, was a circumstance against the accused. It does not appeal to us. At best it can be said that he made a false statement. The statement can be made use of only after we accept the confession to be true and voluntary. Falsity of the statement of the accused never proves a prosecution case when the prosecution has failed to establish its case. In the instant case, no conviction can be sustained only on the false statement of the accused. In the result, we hold that the circumstances Nos. 2 to 6 referred to by the learned Judge were neither circumstantial evidence nor were they incompatible with the innocence of the accused. In the result, we hold that the prosecution has failed to establish any circumstantial evidence against the accused.
17. The last element is the confessional statement. We have already stated, that the accused was arrested on the 14th and kept in police custody till the 17th. The detention of the prisoner beyond 24 hours was violative of Section 57 r/w Section 167 of the Cr. P. C. However, the police tried to cover-up the illegality by stating that the accused was arrested on the 16th. However, the oral and documentary evidence pointedly show that the accused was arrested on the 14th. Hence, the accused was in illegal detention and the police tried to suppress the fact. Therefore, the police pressure was very much there and there was unexplained delay why the accused could not be produced within 24 hours before the Magistrate. This creates a reasonable doubt that the police pressurised the accused to confess. The accused also stated in his examination that he was tortured by police. A confession must be 'perfectly voluntary as well as true'. The burden is on the prosecution to show the two elements. When prosecution demands conviction on the basis of a confession, the Court must1 apply double tests: (1) Whether the confession is voluntary, (2) If so, whether it is true or trustworthy. Satisfaction of the first test is a 'sine qua non' for it's admissibility. If a confession appears to the Court to have been caused by any inducement, threat or promise, as mentioned in Section 24, Evid. Act, it must be excluded and rejected. No question of proceeding further to apply the second test arises. This is the sum and substance of the law enunciated in 1981 Cri LJ 424 (Gauhati) Kuthu Goala. The object of Section 164 of the Code read with the 'Judges Rule' i. e. the Executive Instructions of the High Court, is to find whether the statement sought to be made by an accused is perfectly voluntary or not. The requirement of observing the mandatory provisions contained in Section 164 and 'the Rules' is to find out the voluntariness of the statement. A Magistrate, before recording a confession, must make inquisitorial enquiry, make adequate exercise to ascertain as to whether the accused was compelled by any external element or impelled to make the confession. The Magistrate must exercise to find out the real motive behind making the confession. If he finds the motive to be well grounded i.e., the prisoner has a real, genuine and impelling motive to make a clean breast of his crime, the Magistrate should proceed to record the confession. We have dealt with elaborately as to the duties of a Magistrate before recording of a confession in 1981 Cri LJ 430 (Gauhati) Gendra Brahma v. State of Assam as well. We reiterate that the provisions of Section 164 and the Judges' Rule are safety valves made to muzzle involuntary confessions. It has also been held in the said decisions that the warnings set forth in Section 164 arc merely illustrative and not exhaustive. One of us (Lahiri, J.) observed in Kuthu Goala (supra) and Gendra Brahma (supra) that it is imperative for the Magistrates to explain to the accused his constitutional rights under Article 22(1) of the Constitution as well as the provisions of Section 303 of the Code about his right to consult a lawyer before recording any confession. It has been held that even at the investigation stage, an indigent accused has a right to free legal aid. The importance of legal aid to an indigent at the investigation stage and particularly when the accused is produced for making confession was highlighted in the aforesaid decisions. It has been held that failure to provide free legal aid to an indigent is violative of the basic and fundamental norms of justice and no Court' of Justice ought to act upon such confession. One of the ingredients of 'fair procedure' is1 providing free legal aid to the prisoners who are indigent or otherwise disabled from securing legal aid. We rely on the observations of Prof. Vence Yale, 'Gideon's Trumpet' of Black, J. the stimulating philosophy of legal aid by Mr. Justice Brennan, quotes from 'The Poverty Jurisprudence' of Douglas, J., in Jon Richard Argersinger v. Raymond (Co. known as Raymond's case), reported in (1972) 407 US 25: 32 L Ed 2d 530 (534, 536 and 554), Article 8 of the Universal Declaration of Human Rights, Article 14 (3) of the International Covenants on Civil and Political Rights and extracts from the Report of the High Powered Committee on Free Legal Aid, 'Proccssual Justice to the People', May 1973 p. 34, para 93 and Article 39A of our Constitution — all referred in Haskot : 1978CriLJ1678 . In Hussainara's case reported in : 1979CriLJ1052 , the Supreme Court observed (at p. 1054):. the right of the under trial prisoner to the assistance of a lawyer provided at State cost is secured to him.
It is the constitutional right of every prisoner who is unable to engage a lawyer or secure a legal service on account of poverty, indigence or incommunicado situation to have free legal service. In default of compliance with the obligation by the Magistrate the confession is vitiated as contravening Article 21. I reiterate what one of us (Lahiri J.) observed in Gendra Brahma 1981 Cri LJ 430 (Gauhati) (supra):
I made certain observations in Kuthu Goala 1981 Cri LJ 424 (Gauhati) (supra) and I still stick to it. I would quote the relevant portions.
Experience shows that ordinarily affluent persons do not make confession whereas almost cent per cent of the confessions come from those who are economically, educationally and/or socially backward. The reason is not far to seek. The rich get ready-made legal assistance. What happens to a person like the present appellant — a poor little Indian 1 He does not know his rights guaranteed under Article 20(3) — no person accused of an offence can. be compelled to be a witness against himself nor does he know that there is a provision under Article 22(1) that a prisoner has a fundamental right to consult and to be defended by legal practitioner of his choice. He is uninformed about the salutary provision like Section 303 of the Cr, P. C. which provides that person against whom proceedings are instituted under the Cr. P. C. has a right to be defended by a pleader of his choice. The term 'investigation' defined in Section 2(h) of the Code includes all the proceedings under the Code for the collection of evidence conducted by police. Recording of confessions Under Section 164 of the Code is part of the Police Investigation and falls in Chap. XII of the Code. Such recording of confession is a part of the police investigation and is a proceeding under the Code. The accused has fundamental rights under Article 20(3) as well as Article 22(1) of the Constitution to get legal aid. He has a similar statutory umbrella Under Section 303, Cr. P. C.
In Nandini Satpathy v. P. L. Dani : 1978CriLJ968 , their Lordships recognised the right of an accused to consult his lawyer in the course of police investigation Under Section 161 of the Code. In my opinion, the right of an accused to consult his lawyer, when he is interrogated by Police, is equally applicable in the case of an accused brought by the police to cause his confession recorded by a Magistrate Under Section 164 of the Code. I am of the firm opinion that it is absolutely essential for all Magistrates to explain to the accused before proceeding to record confession, his fundamental rights under Article 22(1) and Article 20(3) of the Constitution as well as the provision of Section 303 of the Code. In the absence of clear explanation of the provision to a poor economically and socially backward accused like the appellant, recording of the confession should be abjured. When the rich and educated by dint of their wealth or education can safeguard their own interest why should those who are educationally, socially and economically backward not be afforded similar opportunities In my opinion, in the absence of due explanation of the provisions to a handicapped person, like the present appellant, confession should not be accepted. I am constrained to observe that if free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to a needy person it should begin from the moment when a poor and needy person is apprehended by the police. It is useless to allow the roots to dry and thereafter to water the plant. Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality ........ If persons economically, socially and educationally advanced can get the advantage of legal aid why should 99 per cent of the Indians be deprived of the opportunities ?
27. Is it fair, just and equal treatement not to inform the uninformed about, the constitutional and statutory right? Is it meting out justice I say emphatically that the non-performance of the basic duties to inform the requisite safeguards and not' to provide an indigent person with free legal aid at that stage is violative of the basic and fundamental norms of justice and no Court of Justice ought to act upon such confessions.
18. We add herein that recording of such confession is violative of Article 21 of the Constitution,
In a recent pronouncement of the Supreme Court, what is commonly known, as Bhagalpur Blinded Prisoner's case, Khatri v. State of Bihar : 1981CriLJ597 , it has been ruled :
We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stages when he is first produced before the Magistrate as also when he is remanded from time to time.
We feel that the observations of this Court that free legal aid must be provided to an indigent accused produced for recording his statement finds ample support in Khatri (supra).
19. Bearing in mind the rules, let us consider the nature and impact of the alleged confessional statement. The accused was produced before the Magistrate on the 17th and he was sent to jail custody and produced again on the 18th. The learned Magistrate states that on the 17th due warnings were given to the accused. The learned Magistrate also states that he gave warnings and explained the effect of the confession on the 18th as well and followed the Rules for recording the confession meticulously. However, we find that the accused was produced at 10.25 A. M. and the proceedings were finished within 65 minutes. The High Court Rules provide, inter alia, that recording of confession is not a mere formality; the Magistrate must apply his mind judiciously and endeavour to base his findings as to voluntariness upon definite premises and grounds. 'The Rules' also provide that' the .confession should not be recorded perfunctorily and hastily. It also rules that the accused 'shall be given at least three hours for reflection during which period he shall not be in contact with any police officer and shall not be permitted to hold converse with any person.' (Emphasis added). These are only a few of the warnings prescribed by the High Court. They are mandatory Rules. The accused, according to the learned Magistrate, was in police custody from 14th to 17th, but the learned Magistrate did not enquire why the accused had been detained in violation of the mandatory provisions of law. Nor did the learned Magistrate consider the impact of such detention. He never pondered that such detention generated grave doubts as to voluntariness of the confession and 'it gives the stamp of police pressure. We are constrained to hold that the accused was under police pressure and the confession was involuntary. We also find that the proceedings of the confession lasting for 65 minutes only was violative of the High Court Rules which demand, inter alia, at least three hours' time for reflection. The accused was deprived of his statutory right. It may be noted that the Police took the accused to jail and brought him from the jail custody. As such, the learned Magistrate was obliged to give the accused sufficient time to reflect. It was denied. Columns 2 and 3 of the form for recording confession were left completely blank. It shows casualness on the part of the recording Magistrate. It follows that the learned Magistrate violated the provisions of Section 164 of the Code and the High Court Rules. On these grounds as well the confession must be abjured.
20. While putting questions, the learned Magistrate posed some questions and one of them reads:
Q, If you do not confess, I will not punish you, I cannot punish you even if you confess. But if you confess your confessional statement will be used against you. Have you understood me (underscored)
We fail to understand what the learned Magistrate meant by 'I cannot punish you even if you confess.' It invariably carried the impression to the accused that if he confessed no Court would punish him. Further, the Magistrate did not tell the accused that the confessional statement would be used 'in evidence' against him. It is a fatal omission. At any rate the questions were misleading. In view of the prolonged detention in police custody, the slipshod manner of the recordings, omissions to fill in the columns required by law to be filled in and the completion of the entire proceedings of recording confession within 65 minutes compel us to conclude that it must be abjured. It was recorded in violation of law as well as the norms of justice. Further, the accused was entitled to legal aid being an indigent person, and he was deprived of his constitutional right. On these grounds we cannot accept the confession as voluntary.
21. The learned Judge has rightly held that the statement of the accused as to the killing was false. It was the main offence. As such the substantial part of the confession was false. In our opinion, iv is difficult to accept the rest, which is rather a minor part of the story. Further, we find that the subsequent part, viz., burial of the dead body inside the room was also a false statement. We have held that the dead body was never buried inside the room as alleged. Further, the Police produced the accused on the 17th after the dead body had been recovered. As such, the confession as to the burial did no contain 'any new fact' which had not been known to the Police. The statement of the accused that his wife was busy preparing food, his wife did not (urn up when he called her, and he rebuked her, whereupon she assaulted him, are all false statements. Nor is it the prosecution case that the woman died of iron rod injury. As such, the confessional statement in its entirety was false. We hold that the confession was neither true nor voluntary.
22. For the foregoing reasons we hold that the prosecution had failed to prove its case against the accused beyond reasonable doubt. These were the reasons why we allowed the appeal of the accused, set aside convictional sentence and directed his release vide our order dt. 9-7-1981. These are the reasons why we rejected the reference made by the learned Sessions Judge for confirmation of the death penalty.
B.L. Hansaria, J.
23. I generally agree with what has been stated by my learned brother in his laboured and exhaustive judgment. I have however some reservations about remarks relating to the learned trial Judge and P.W. 2. On the subject of legal aid also, I reserve my thoughts for some other occasion.