1. Both the conviction and sentence in this case must be confirmed. The Sessions Judge and the Assessors have believed the evidence of the witnesses Jetha, Fulbhai and Lallu, who give direct evidence as to the murder. All that is urged against them is that they had not told anyone of what they had seen until the Police came upon the scene: but they have explained that they were afraid and the unwillingness of people of this class to come forward to depose to an offence committed in their presence lest they should themselves get into trouble is well-known. Further the evidence of Diwali, widow of the deceased man, an unwilling witness for the prosecution, corroborates to some extent the case for the prosecution. It shows that the present appellant . Ranchhod and the deceased, his brother, were not on good terms, because the former was on terms of criminal intimacy with her and that the appellant's conduct was suspicious when she made enquiries of him as to the disappearance of the deceased. Then we have the appellant's confession before a Third Class Magistrate. That Magistrate has been examined and he deposes that he believed the confession to have been made voluntarily and that on examining the person of the appellant he found no marks of any injury or ill-treatment. The corpse was found buried in the field of the appellant. The Panch witnesses state that it was the appellant who pointed out the place and the appellant in his statement Ex. 37 admitted that it was he who had informed the Foujdar that there was something like a dead body in his field and that his brother Bhaiji had disappeared some four or five days before.
2. I am in entire agreement with my learned colleague's observations as to the admission of the Panchnamas in this case, in evidence.
3. I agree with the order that the conviction and sentence in this case must be confirmed. Mr. Thakor, who appeared for the appellant in this case, argued very clearly and ably. The purport of his arguments was that there were clear traces of concoction, in the evidence for the prosecution. After considering very closely what he said, and going through the evidence, it seems to me that there are no clear traces of concoction ; but that the evidence taken as a whole is conclusive and convincing. But I should like to add that I do not think that enough care was taken in this case to exclude from the record and from consideration, certain panchnamas which were made in the presence of the Police officer and signed by him, and which contained confessions made by the appellant. In one of the panchnamas, which relates to the pointing out of the place where the dead body was buried, certain statements made by the appellant are entered; but it seems to me that the rending of the corpse was due, not to anything that the accused said, but to his conduct in pointing out the place. Then again certain statements made by the accused, when he pointed out the scene of the offence, were recorded in a panchnama. But nothing was discovered in consequence; there were no blood stains; there was nothing, which was proved in the case as a fact, which would help to establish the guilt of the accused. It seems to me that in both these matters all that was justifiably proved was what the accused had done, not what he had said. Consequently, in my opinion, these panchnamas ought to have been excluded; neither read nor referred to. If I may express a hope then I do hope that our Sessions Judges will be very careful to exclude from the record panchnamas of this kind, which contain statements by an accused person which either are clearly inadmissible or which are of doubtful admissibility.