1. In this case we had the Advantage of hearing from Counsel for the accused all that can fairly be said on their behalf, but in the result I am satisfied that this is a clear case of murder. We have had the further assistance of an extremely clear judgment from Mr. Broomfield the Sessions Judge of Ahmednagar, which relieves me from the necessity of setting out in any detail the facts of the case.
2. Shortly stated the deceased was a moneylender belonging to the village of Brahmanwadha, and it is alleged by the prosecution that he was murdered by people to whom he had lent money, namely, the accused who were inhabitants of the neighbouring village of Kalamb. The two villages are about a couple of miles distant and the case for the prosecution is that the deceased left his own village one morning to settle up some accounts at Kalamb, that he left Kalamb the same evening, and was murdered on his way home by the accused and one other man called Yesu, an approver in the case; and that the accused afterwards earned the deceased's body to an inaccessible spot and threw it down a precipice.
3. The exact fate of the deceased man was not discovered for a long time. Suspicion arose next morning by his horse turning up at his home. Thereupon inquiries were at once made. The Police were communicated with and searches were made without any result for some 11 days. The alleged murder took place on the 15th November and it was on the 26th or 27th that the Police first got any real information as to what had happened. The Sub-Inspector of Police did not even know for certain whether the deceased was dead, and was at a loss to know what had really-happened. However, suspicion had fallen, on accused No. 1, partly because he was in debt to the money-lender and had been in litigation in connection with the debt, and partly because of his suspicious movements. Accordingly the Police questioned him and they proceeded to move their camp to Brahamanwada the other village taking accused No. 1 along with them. It was then that accused No. 1 volunteered to point out certain matters which would show the fate of the deceased.
4. The Punch were accordingly summoned and accused No. 1 took the parties first of all, to the spot called Kothal Dara very-much north-west of the village of Kalamb, and approximately west of the village of Lahit, shown in the map which is exhibited in the case. Nothing however was found there. Then accused No. 1 said that he would take them to this other village of Lahit, and there to nothing was found in one of the house that he took them to. But in the other house that he took them to, some clothes of the deceased man were found. Then he said that he would show them the place where the dead body was, and going south they went to the place, Koch Kada No. 12 in the map and, there were found certain, human remains and, other articles which have been identified as those of the deceased man. Later again he said he would show a certain further' point, and, so he took them further south again to the place where the murder is said to have taken place, and where there were found more articles which were identified as having belonged to the murdered man. In particular there was the chit, Ex. D, admittedly in the, handwriting, of the deceased, and referring,, to Certain accounts with persons who Were called, as witnesses in the case. Later on again the saddle of the deceased's horse was found at a point close by deceased's own home. Following on other information given by accused No. 1, the Police arrested accused No. 2, and he also took them to certain spots connected with the murder. After this both the accused were arrested and they were sent at once to the Magistrate to make their confessions.
5. The confessions are Exs. 37 and 38. In my opinion they have been taken with great care by Mr. Phanase, the First Class Magistrate, and in particular, I notice with approval that the Magistrate was careful to follow the English practice of warning prisoners that whatever was said might be used in evidence against them. The confessions, to my mind, read as being entirely true stories. These confessions together with the evidence of the approver Yesu and the discoveries which I have already alluded to in which accused No. 2 also took part to some extent, constitute in the main case against the accused.
6. There is in addition the evidence of the deceased's brother that the accused borrowed different sums and that they were in debt to the deceasad. The prosecution case too is that the deceased was a hard man and was exorbitant in the terms which he demanded from his constituents and that in fact half the village of Kalamb was in debt to him. There is one other man, Sheku Sakharam (Ex. 12) who purports to have overheard a talk about the murder and to have seen the parties returning homes late, that night. But the learned Sessions Judge thought it safer to discard his evidence altogether, and for the purpose of my judgment I prefer to do the same.
7. My learned brother raised one point on the evidence which is nonetheless value-able because it is technical. I refer to the certificate which was admitted in evidence of the Professor of Anatomy at the Grant Medical College as to the bones. That is Ex. 36 and it is referred to by the learned Sessions Judge at page 49, line 35, of his judgment. The technical point is whether that certificate as such is admissible in evidence. What took place is this, that certain articles which were found in the place I mentioned, such as sack, dhoti, rags, gunny bag, etc., were sent to the Chemical Analyser. The Chemical Analyser was not called but merely his certificate was put in. That is correct. The person who was called was the Sub-Assistant: Surgeon and his evidence was: 'The, Sub-Inspector of Police, Akola, had sent tome some articles. They are all before the Court. All the articles except bones were sent to the Chemical Analyser, Bombay. The bones were sent to the Professor of Anatomy, Grant Medical College, Bombay. The certificates from these officers were received and they are those shown to me, The articles were also received back and were then sent by me to the Sub-Inspector of Police, Akola.' There was no cross-examination of the Sub-Assistant Surgeon. The point is whether the certificate which he thus produced was evidence without the Professor of Anatomy being himself, called. The, Government Pleader has said that there is a High Court Circular giving directions in this class of cases that bones are to be sent to the Professor of Anatomy Grant Medical College. That of course is a right and proper course, but the certificate of the Professor is not per se admissible in evidence, apart from special authority like Section 510 of the Cr.P.C. It seems to me then that without some special authority on that behalf a certificate from a third party like this is only hearsay evidence and is not admissible in the absence of any statutary authority. But even setting aside that certificate as I in fact do, it still remains in evidence that certain bones were found.
8. Now what are the real facts here. I have not the smallest doubt that, the articles which were found at point 4 and point 16 were those of the deceased man and that the remains at point 16 are his remains. It is also perfectly clear to my mind, having regard to the circumstances of the case and the blood which was found on some of the articles that this man: had been, murdered.
9. The next question is on what hypothesis ought I to reject the confessions made by the accused? I would rather. take the earlier instance Of the discovery of the articles by ;the accused. No explanation is given so far as I. am aware as to how they account for their guilty knowledge of the locality of these particular articles. When a man points out unknown matters like these, one may presume under the Evidence Act, Section 114, that he is connected with the crime unless he can give some satisfactory explanation as to how he comes by that knowledge. As far as lean see these accused give no explanation as to that, apart from their confessions which, as I have already said, are exeremely clear arid bear on them prima facie the stamp of truth. Apart froth that the identifications, like, for instance the rafter used to carry the body and the discovery of the particular building from which it was taken as stated by the accused are to my mind most material, I have, already referred to Ex, D. and other articles found at point 4.
10. Next, if one turns to the evidence of the approver there is ample corroboration of that evidence in the various circumstances of the case and in what was actually found at particular places. If I understand rightly the defence argument that has been presented to us amounts to this that two men Manku and Aba who were parties to the conspiracy to commit murder are not before the Court and that Manku has in some way got up this case against the accused. But the argument involves this difficulty that it leaves no explanation as to how Manku induced the accused first of all to point out these various articles and then to confess what they had done.
11. Then there is one other point which hap been urged upon us, viz., that some of the articles, clothes for instnce, were found at the village of Lahit and that the saddle was found just close, to the house of the deceased. This it is said shows that something must have taken place after the death of the deceased and that somebody must have removed the articles in this way so as to throw suspicion upon others. Let that be so but I fail to see how the placing of these clothes in another village could in any possible way damnify the accused. That would be no evidence against them so far as that goes. The whole point against the accused is how did they come to know where these particular articles were. The explanation given so far as it goes about the second village is that the articles which were found: there were placed there by some enemy of the accused in order to arouse the suspicion of the Police against them and that this was similarly the reason for the saddle being found in the house of the deceased instead of at the place of the murder. I fail to see how these two matters really assist the accused in any way. The suspicion would not be thus directed against them, for they lived in Kalamb, and not at either of the other two villages.
12. Another point was urged regarding the delay in the Police discovery of the crime between the 15th and the 26th November. But when one thinks of this mountainous district and its valleys, I fail to see how it helps the accused that it was not until the accused themselves opened their mouths on the subject that the Police had any real idea as to what had happened. In, fact, one can see from the facts that the Police were searching in the wrong direction from where this body was. The body was far away at Koch Kada north-west of Kalamb though the murder had taken place south of Kalamb.
13. I have now dealt with the main points urged in favour of the accused. As I have already said the case is an extremely clear one, and in a premeditated cold blooded murder such as this there can be only one sentence namely, that which the learned Sesssions Judge has passed upon the accused.
14. There is one matter about motive which was urged before us. This is not the first time that a money-lender has met with his death at the hands of people who owed him money, and to my mind, that formed an adequate motive for the crime being committed in the present case.
15. The convictions and sentences will accordingly be confirmed and the appeals dismissed.
16. I agree. The main point for consideration in the present case is what weight should be attached to the confessions made by the accused persons. Considering the care with which these confessions were recorded and the precaution adopted by the Magistrate to secure that they were voluntary and in the absence of any circumstance in the case suggesting that they were improperly obtained, it is difficult to see any ground for refusing to accept them as good evidence. In particular I am impressed by the fact that the Magistrate allowed these two persons a delay of 24 hours before recording their statements during which time they were kept in his custody and not in the custody of the Police. Assuming that the confessions were voluntary, and no other conclusion seems to be possible in the circumstances of the case, their truth can hardly be questioned having regard to the corroboration which is furnished not only by the conduct of the accused but also by the evidence of the approver. The disclosure of properties connected with the crime at places spread at a considerable distance in a wild and mountainous country, and the discovery of the human remains at the foot of the precipice known as Kock Kada, convince me that the confessions contain, a trite account; of the manner in which the deceased met his death, That the deceased was murdered is fairly established even apart from the confessions of the accused. The deceased left his village on the morning of 15th November 1921 with the intention of being absent for a day only and on the following morning his horse returned to his house without the saddle and trappings. From that day onwards he has never been heard of and the various articles and property found at different points noted in the case have been proved to be the property of the missing man. Although the portion of the skull which was found at the foot of the precipice cannot naturally be identified, the general evidence leading up to that point is so clear that it is impossible to feel any reasonable doubt that this was the skull of the missing man, and that he was murdered by some person or persons is a reasonable inference in the circumstance of the case. Everything points to the death having been caused by some of the deceased's debtors in the neighbourhood and, therefore, the general facts of the case go strongly to support the case against the accused. In view of the very clear and cogent judgment of the learned. Sessions Judge I do not feel that it is necessary for me to deal, at any greater length with the case. I agree in the conclusions arrived at by the learned Sessions Judge, and in the circumstances of the case, having regard to the premeditated nature of the crime, I can see no ground for refusing to impose the extreme penalty. I agree, therefore, with my learned brother that the convictions and sentences must be confirmed and the appeals dismissed.