D. Pathak, Actg. C.J.
1. A brief narrative of the facts giving rise to this appeal from jail depicts a horrendous and luried scenario of the obsolescent .superstition of witch-hunting taking the toll of the life of an innocent man, Chida Soren and his wife Sumi Mardi. No. 2 Demdema village within the jurisdiction of Gossaigaon Police Station was afflicted with diseases causing the death of several children including two of the appellant Sikiram Soren and three of appellant Som Soren, after short spell of fever. The villagers were obsessed with belief that their co-villager, Chida Soren was an imp and his wife Sumi Mardi a witch. The villagers thought that they cast evil spirits on the children of the village, several of whom fell ill and died. On 18-8-1975 at nightfall the villagers gathered in a meeting in an open space of the village. Deceased Chida Soren also attended as he was called to come to the meeting. It is the prosecution case that appellant Som Soren, , Munshi Soren, Sikiram Soren and one Barka Soren (since deceased) attended the meeting being armed with short lathies concealed under their wearing clothes. The evidence discloses that deceased Barka Soren was- the real brother of deceased Chida and the other three appellants before us are the cousins of the deceased. It is alleged that the appellants and Barka Soren charged Chida Soren and his wife Sumi Mardi as 'Daini' (witch) and then all the four started beating Chida Soren with lathies which they secretly carried. Chida Soren died instantaneously on the spot. The same persons then went to the house of Chida Soren and beat his wife Sumi Mardi to death. Early next morning Barka Soren, Sikiram Soren and Som Soren appeared before the Offlcer-in-Charge of Kochugaon Police Out-Post. Barka Soren informed the police officer that Sikiram Soren and Som Soren had beaten Chida Soren and his wife t0 death. The said Barka Soren also delivered two lathies to the police officer. Sometime thereafter P. W. 3, Jetha Soren, son of deceased Chida Soren and Sumi Mardi went to the same Police Officer with some co-villagers and submitted a report on the killing of his parents by the accused persons. The Police Officer took up the investigation on the report of Jetha Soren. He arrested all the four witch-hunters and produced them before the Sub-Divisional Judicial Magistrate, Kok-rajhar on 20-8-1975 and they made confessional statements on 22-8-1975 before a Magistrate. During the course of investigation the dead bodies of the deceased were sent for post-mortem examination and P. W. 12, Dr. B. H. Bhat-tacharjee held the autopsy on them. After completion of the investigation the four of the accused-persons were charge-sheeted.
2. Accused-appellants Som Soren, Munshi Soren, Sikiram Soren and also Barka Soren were charged under Section 302/34 I.P.C. Accused-person pleaded not guilty to the charge and accordingly they were put on trial. Accused Barka Soran died before the evidence was recorded. The appellants denied to have attended the meeting of the villagers or to have killed Chida Soren and his wife Sumi Mardi by beating them with lathies. Their further plea is that they were compelled to confess before a Magistrate, being assaulted by the police and that their confessional statements are neither voluntary nor true. During the trial prosecution examined 13 witnesses in the case and on consideration of the evidence on record the trial Court convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life. Hence this appeal.
3. Miss Usha Baruah, who has been engaged to represent the appellants as they are not represented by any counsel, has submitted that there is no reliable evidence to prove the charge against the appellants. The further submission of the learned Counsel is that the confessional statements made before the Magistrate was a result of coercion and torture made by the police. Therefore, according to the learned Counsel the prosecution has totally failed to prove the guilt of the appellants beyond any reasonable doubt.
4. The death of the two deceased persons are not disputed. P. W. 12 Dr. B. H. Bhattacharyya performed the autopsy on the two deceased persons on 21-8-1975. He records the following injuries on the person of Chida Soren.
Body swollen, decomposed, full of maggots eyes closed mouth open. Post mortem blisters and peeling of skin all over the body seen.
1. There is one lacerated injury on the scalp over the right temporal bone of the head size 3' x i' x bone deep.
2. There is one crack fracture on the temporal bone right side under the injury No. 1. Cranial cavity contains blood.
3. All soft parts decomposed. The head injury is ante-mortem.
In the opinion of the doctor the death was due to shock and haemorrhage resulting from the head injury sustained by the deceased.
He (P. W. 12) found the following injuries on the person of Sumi Mardi Soren .
Whole body swollen, decomposed, full of maggots, post mortem blister: and peeling of skin all over the body. Eyes closed mouth open.
1. There is one lacerated injury on the scalp over the parietal bone of head, right side size 2' x1/2 ' x bone deep.
2. There is one crack fracture of the right parietal bone under the injury No. 1. Cranial cavity contains clotted blood.
He found all soft parts decomposed and in his opinion the head injury was ante-mortem. He has further opined that death was due to coma from shock and haemorrhage resulting from the head injury sustained by the deceased. The witness has further given the opinion that the injuries on both the deceased persons could be caused by lathies like the Mat. Exts. I, II, III. He has stated that the head injuries of each were sufficient to cause death in the ordinary course of nature. To a query by the Court he deposed that as the bodies were decomposed and swollen any other never injuries could not be located, if there were any such injuries at all. He has stated that the injuries could have been caused more than 72 hours ago. Some of the prosecution witnesses also testify about the fact of the death of these two deceased persons as a result of injuries sustained by them.
5. The learned trial Court rests the conviction of the appellants, on (1) judicial confessions of the appellants, (2) the evidence of the eye witnesses and also (3) the extra-judicial confessions made by the appellants as deposed to by P. Ws. 5 and 9.
6. The learned trial Court after going through the evidence has recorded the finding that Ext. 1, the F. I.R. lodged by P. W. 3, Jetha Soren is not the first in point of time. The learned trial Court has taken the G. D. Entry No. 154 recorded on the information given by Barka Soren to be the foundation of the prosecution case, as a result of which the actual investigation started P. Ws. 5 to 9 are the witnesses who attended the villager's meeting where Chida Soren was beaten to death. P. W. 3 Jetha Soren and P. W. 4 Bhoja Mardi are the witnesses for the assault on Sumi Mardi by the appellants.
7. P. W. 3 Jetha Soren in his ex-amination-in-Chief has stated that he saw all the accused persons beating his mother Sumi Mardi to death. But in the cross-examination he has stated that he took his meal at night and slept and he did not see anything: He also d:d not state to the investigating officer tho names of the persons who had killed his mother. Therefore his evidence cannot advance the prosecution case. But his evidence that he submitted a written information to the police officer about the occurrence has been corroborated by P. W. 2, Jiban Tudu, a literate man and a Pharmacist of Kachugaon who lives away from the village of the appellants. P. W. 2 has slated that he wrote the F. I.R. Ext. 1 at the instance of Jetha Soren who approached him with some co-villagers. P. W. 10, Basid Murmu who is also a disinterested witness was present when the F. I.R. was written P. W. 11, the police officer has stated that before the Ext. 1 was submitted to him he received information about the occurrence from Barka Soren who appeared before him with accused Sikiram and Som Soren and he made G. D. Entry No. 154 dated 19-8-1975 according to which Sikiram and Som Soren had beaten Chida Soren and Sumi Mardi to death. In view of the aforesaid state of evidence the learned trial Court did not think that the F. I.R. Ext. 1 was first in point of time and hence the trial court relied on the G. D. Entry No. 154 to be the foundation of the prosecution case. The information given by Barka Soren as seen from the G. D. Entry No. 154 is to the effect that accused Sikiram and Som Soren had killed Chida and Sumi. But from the evidence it is found that Barka and Munshi Soren are equally implicated in evidence. In view of the unimpeachable state of evidence, the learned trial court rightly found that the reasons got the better of obsession and therefore they decided that instead of all the four Bo-ing the gallows let two of them live and keep home and let two others surrender to police for punishment.
P. W. 4, Bhojo Mardi is the brother of deceased Sumi Mardi. On the night of occurrence he was staying in the house of Chida and Sumi. He has stated that Chida Soren left for the villagers' meeting. He was sitting in the verandah of the house. Accused Sikiram, Som and Munshi and also Barka came together to the house and killed his sister Sumi Mardi by giving indiscriminate lathi blows. In cross-examination he admittted the defence suggestion that he slept after taking meal and he saw the dead body of his sister on the next morning. However, his evidence that he saw his sister being killed, has not been any way shaken,
8. P. Ws. 5 to 8 have satisfactorily proved that a meeting was held under a mango tree at about dusk. They have deposed that the appellants and the deceased Chida Soren attended the meeting. All these witnesses were present. In their examinalion-in-Chief they have stated that they saw accused persons beating Chida Soren to death. But in cross-examination they broke down and made incoherent statements. Therefore the learned trial court did not rely on for direct evidence on the charge of murder against the appellants. However, their entire evidence cannot be thrown out. They have in their evidence categorically stated that there was a meeting of the villagers after the nightfall in which the deceased Chida Soren was present and they have also stated the purpose for which it was convened. What, they have stated in 'heir cross-examination is that they left the meeting out of fear before the killing of Chida Soren took place. However, all of them have said that the meeting was convened to light the disease that had broken out in the village. They have stated that all the three appellants and deceased Chida Soren attended the meeting,
9. P. W. 5 Mangol Murmu has said that appellants Sikiram. Som, Munshi and deceased Barka Soren charged Chida Soren and his wife Sumi Mardi as witches and creating trouble. It is in his evidence that they took out lathies which were concealed under their clothes. He has further deposed that accused Sikiram, Munshi, Som and Barka declared in his presence that they had finished Sumi Mardi also. This statement of the witness goes unchallenged.
10. The evidence of P.W. 9 Barka Hembrnm is an unimpeachable piece of evidence. He is a person of the same village. He has stated that he was present in the place of the meetings from the beginning to the end. The only suggestion given to him is that he gave false evidence because of his quarrel with the appellants. He has denied the truth of the charge and nothing of any substance could be alleged by the defence to show that he was any wav inimical to the appellants and that he was not a truthful witness. From the evidence of this witness it emerges that some children of the village died. Appellants Bom Soren and Sikiram also lost their children, The meeting was held for that reason. Appellants Som, Munshi and Sikiram and also Barka Soren (since deceased) began to beat Chida Soren with lathi. It is in his evidence that Barka first aave a blow pn his head. Chida Soren fell down and died. Sufal Hudah, the Goanburah went to intervene when the appellants dealt blows on him causing injury on his person. The said Sufal Hudah died before the trial commenced. But the statement of P. W. 9 has been corroborated by that of P. W. 1, Dr. N. Basu-matary who examined Sufal Hudah being sent to him by police and found two lacerated wounds on his hand. P. W. 9 has further stated that after killing Chida Soren all the four accused left the meeting and all of them returned after some time. The accused persons declared in his presence that they had killed Sumi Mardi also. This statement of the witness goes unchallenged. P.W. 9 has further stated that all the accused beat Chida with lathies. P.W. 4. Bhopo Mardi also said that all the accused took part in beating Sumi Mardi. Head injury to each of the deceased appears to have been caused by a single blow. It appears from the doctor's evidence that he found both the bodies highly decomposed and swollen with postmortem blisters and peeling of skin. Therefore if both the deceased sustained other minor injuries, it was not possible to find them on decomposed bodies.
11. The confessional statements of the appellants and also that of Barka Soren were recorded by P.W. 13, Harendra Nath Barua, Munsiff-Magis-trate at Kokrajhar at the relevant time. On 22-8-1975 he recorded the confession of appellant Sikiram, Som, Munshi and Barka. Confession of Barka Soren who is already dead does not call for our scrutiny. Exts. 7, 9 and 10 are respectively the confessional statements of accused Sikiram, Som and Munshi.
It is the settled law that when in capital case the prosecution demands a conviction of accused primarily on the basis of the confession, the court must apply double tests, (i) whether the confession is perfectly voluntary and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence, and if the confession appears to the court to have been caused by any inducement, threat or promise such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. In such a case the question of proceeding further to apply the second test does not arise. The act of recording confession under Section 164 Cr.P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164, Cr.P.C. must be fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the questions intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24 of the Evidence Act.
Miss Baruah, the learned Counsel for the appellants submits that no pertinent caution was given to the appellants before making confessional statements. She has submitted that there was no caution given to the appellants to the effect as to why they were going to make the confessional statement. It is also submitted that there was no such caution given to the appellants before these confessional statements that they would not be sent to the police lock-up even if they do not make any confessional statements. In support of her contention she has relied on a decision of Supreme Court in Davendra Prasad Tiwari v. State of Uttar Pradesh : 1978CriLJ1614 where their Lordships observed in the following terms :
Before a confessional statement made under Section 164 Cr.P.C. can be acted upon, it must be shown to be voluntary and free from police influence. Held that the confessional statement made by the appellant in the instant case could not be taken into account, as it suffered from serious infirmities in that (1) there was no contemporaneous re- cord to show that the appellant was actually kept in jail as ordered by Judicial Magistrates; (2) the Judicial Magistrate who recorded the confessional statement of the appellant did not question him as to why he was making the confession and (3) there was also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock up even if he did not confess his guilt.
In the present case, we find that sufficient caution was given by the learned Magistrate. Therefore this submission of the learned Counsel for the appellants is not at all tenable.
12. From the records we have seen that the accused persons were not produced from fresh police custody on the day on which their confessional statements were recorded. They were produced on 20-8-1975 before the Magistrate and since then they were in judicial custody till their confession was recorded on 22-8-1975. From the perusal of Exts. 7, 9 and 10 we have found that the learned Magistrate duly cautioned the accused persons and gave them about four hours' time for reflection when they were produced before the Magistrate for recording their confessional statements. It is not found that the appellants made any complaint to the Magistrate of police atrocities or of any undue influence that might be brought to bear upon them. The learned Magistrate was satisfied that all these appellants confessed voluntarily. It is in evidence that appellant Sikiram Soren and Som Soren voluntarily appeared before the Police officer and in their presence and without any protest from them Barka Soren reported that they had killed Chida Soren and his wife. This clearly shows that appellant Sikiram and and Som were mentally prepared to admit their liability. In these circumstances the Police Officer had no reason to extort confession from these two accused by assaulting them or putting them in fear of assault.
13. At this stage we may notice the confessional statement of these appellants. Appellant Sikiram Soren stated as follows :—
Chida Soren is my younger brother. He and his wife Sumi Mardi were witches. So, children of the village suffer from disease and die. Two of my children 'died in this manner within 3/4 days. .3 sons of Chak Soren and two sons 'Of mine died. A meetinK was convened in the village. The people asked us to kill the two, otherwise our Jives would be finished. Then, my brother Barka, Som, Munshi and myself killed Chida Soren in the meeting. After that went to Sumi Mardi's house and (killed her there.
Appellant Som Soren stated as follows;-
Barka, Munshi, Sikiram and myself are brothers in relation. Chida Soren was my uncle, Chida and his wife Sumi Mardi were the witches. So, the children of our village suffered from fever and died within a few days. Three of my children died in such a condition. The village people convened a meeting ora Monday. The people warned us that If we do not kill Chida and his wife oot lives would be finished. On being warned, Barka, Siki, Munshi and myself killed Chida at the meeting with lathi. Afterwards we went to the house of Sumi Mardi and killed her with lathi.
The statement of appellant Munishi Soren reads as follows:—
Chida Soren is my brother's son. He and his wife Sumi Mardi were witches. For this reason, children of the village suffered from fever and died. My brother Som Soren lost three children, two children of Sikiram were died in this manner. A meeting was convened at the village. The people asked us to kill them otherwise our lives would be finished. So, out of fear from the people, myself, Siki, Som and Barka killed Chida Soren with lathi. Afterwards we went to the house of Sumi Mardi and killed her there.
On going through the confessional statements of these appellants, we find that they are strikingly consistent and in conformity with the prosecution case as is found from the evidence of the witnesses for the prosecution.
In Madi Ganga v. State of Orissa : 1981CriLJ628 it has been held that it is now well-settled that in order to sustain a conviction on the basis of the confessional statement it is sufficient that the general trend of .the confession is substantiated by some evidence which would tally with the contents of the confession. In this case we have already noticed the evidence of P. Ws. 5 and 9. Their evidence corroborates in material particu- lars with the contents of the confessional statement.
14. Miss Baruah in her criticisms of the evidence of P. W. 9 has contended that the statement of this witness was recorded by the investigating officer after an inordinate delay. It is found from the evidence of investigating officer, p. W. 11, that th's witness was examined by him on 23-8-1975 whereas P. W. 5, Mangal Murmu was examined on 19-8-1975. We do not find any question to have been put to the investigating officer as to how the delay in recording his statement was occasioned. It is in the evidenc that P. W. 5 Mangal Murmu went to Kochugaon Police out-post with Jetha Soren. Therefore he was available at hand and the investigating officer might have examined him immediately. The learned Counsel for the appellant submits that when there is inordinate delay in recording the statement of a material witness then the evidence of such witness becomes weak. In support of her submission, the learned Counsel relies on a decision of the Supreme Court in Balakrushna Swain v. State of Oris-sa, reported in : 1971CriLJ670 where it was held that uniustified and unexplained long delay on the part of investigating officer in recording statement of material eye-witness during investigation of murder case will render evidence of such witness unreliable. After going through the report of that case it is found that the material eye witness was not examined for nearly 10 days and that witness was also found to be telling falsehood on material aspects of the case. In that context their Lordships ruled that — 'It becomes difficult to place any reliance on such testimony particularly when he tries to conform to the evidence of P, W. 1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head. When this very statement of p. W. 1 has not been reved on by the High Court there is no reason for taking a part of his statement from the Sessions Court and a part from the Committal Court to piece it as a whole for a narration as to how the deceased was killed.'
15. We have properly scanned the evidence of P. W. 9. We do not find any infirmity in his statement. His statement was recorded by the investigating officer on 23-8-1975. Further there is no suggestion or question put to the investigating officer regarding the delay in recording the statement. In view of the aforesaid state of evidence, we do not find any reason to accede to the submission made by the learned Counsel.
16. From the appreciation of the evidence on record, judicial confessional statements of the appellants as well as the unchallenged testimony of P. Ws. 6 and 9 regarding the extra-judicial confession made by the appellants, we are of firm opinion that the prosecution has been able to prove the guilt of the appellants beyond any reasonable doubt. The evidence also discloses that the appellants had their prior concert among themselves for taking the lives of Chida Soren and his wife Sumi Mardi as they were suspected to be possessed with evil spirit and hence the appellants decided to do away with their lives. Therefore in furtherance of their common intention they acted conjointly in beating them up and causing their death.
17. For the reasons stated above, we are satisfied that the conviction of the appellants under Sections 302/34, Indian Penal Code has been proved against the appellants Som Soren, Munshi Soren and Sikiram Soren beyond any reasonable doubt.
18. In the result the appeal is without any merit and the same is dismissed.
T.C. Das, J.
19. I agree.