1. The appellants have been convicted under Sections 302 and 34, IPC and sentenced to transportation for life, and a fine of Rs. 50/- with R.I. for three months in default, for murder of Bazi Panka a village ojha. Besides the facts which are simple, the case involves questions of law about the caution to be observed in recording a confession under Section 164, Cr.P.C. about the value of a plea of guilty before the committing Magistrate which is subsequently retracted before the Sessions Judge, the weight to be attached to the evidence of an eye-witness who does not interfere or raise a hue and cry at the sight of the murder, and the manner in which investigating officers should record the statements of the witnesses.
2. Two of the appellants Kandhai Teli and Dadu Teli son of Ram Ratan belong to village Atraila and the third, Dadu son of Shivadhari belongs to the adjoining village Shahpur both in thana Waidhan. At a short distance from those villages, there lived one Bazi Panka, professonal ojha or witch-doctor. So completely did the villagers believe in his ability to cure them that every failure or relapse of illness, was to them the result of the ojha's perversity or greed for more money by continuing the treatment. For sometime before of 27.9.52, all the appellants had reason for dissatisfaction with him.. Kandhai Teli had a four years' old son who had suffered and ultimately died from what was later on diagnosed by a doctor to be diarrhea. For two months Bazii PariKa had made several professional calls, and taken money but had allowed evil spirit of the disease to return. Dadu son of Shivadhari had a child whose fever had repeatedly relapsed, in spite of the ojha's treatment; later on, the doctor diagnosed it as malaria, but the patient's father knew it to be an evil spirit which Bazi Panka was setting on his child whenever he wanted to extort money. Dadu son of Ram Ratan Teli had an ailing father who also was ill off and on.
3. At about sunset on Saturday, the 27th September, 1952 Kandhai Teli went to the house of Bazi Panka and fetched him to see the ailing child. The latter's wife states further that she asked Kandhai to accompany her husband back to his house, if it got late at night. He did not reach home but was found on the next day dead on the road near the place of Kandhai Teli and Dadu son of Ram Ratan. Other witnesses speak of what happened at this end. Sadhu Tell the brother-in-law of Kandhai, and a distant relation of the two other appellants states that he saw Kandhai bring Bazi Panka to his house, Dadu, son of Sheodhari came there, anxious to take him to his own house; ha stated to Sadhu that if the ojha was unsuccessful this time, it would, be bad for him. After a short visit to this Dadu's house, Kandhai and Bazi returned and continued the ojha. In the meantime he came again and wanted the ojha to pay another visit to his house; the latter tried to put off but the inviter was insisting. By now, the other Sadhu i.e., the son of Ram Ratan, joined them and asked the ojha what he was doing there to which he replied that he had been called by Kandhai to treat his son. This Dadu s/o Ram Ratan also told Sadhu Teli that he would beat up Bazi Panka as he was setting spirits upon people. About that night's happenings Sadhu's story ends here. He adds that on the next morning Kandhai said to him that he and these two Dadus had killed Bazi Panka.
(3a) The witness Daokaran Chamar states that later on that night he saw Kandhai, footh the Dadus, and the deceased going by his house. The witness Ram Lakh an Teli a relation of Kandhai, living within 50 paces from Kandhai's house, says that he was at Kandhai Teli's house that night and saw Dadu s/o Shivadhari, come and ask Bazi Panka to accompany him to go to his house; after making futile excuses and the inviter's insistence the ojha went with him.
4. Paramsukh Muri arid Dalsingha Brahman claimed to be eye-witnesses and give substantially the same account. They were looking for their straying cattle on that night and saw these three appellants holding Bazi Panka Dadu s/o Ram Ratan on the head; Kandhai pressing down his knee; and Dadu s/o Shivadhari squeezing the neck with some-thing. All other witnesses are on purely for mal points of evidence; the Tahsildar Magistrate specially empowered under Section 164 who recorded the confessions of all the three appellants, Rajnath Teli who gave the F.I.R., and the police officer who investigated the case. The appellants were arrested on the second or 3rd October and remanded on the 4th. They confessed on the 6th October before the Tahsildar Magistrate. In the committing Magistrate's Court, they were asked to state if they wanted to give a statement. Upon this Kandhai stated:
I certainly attacked (mara) Bazi. My eon was ill and I took Bazi for ojhai. Afterwards, I and Dadu, son of Shivadhari, and Dadu son of Ram Ratan, beat him on the road, but we ran away when he was still alive. We really did not mean to take life; but somehow, he died.
Dadu son of Ram Ratan stated:
I beat Bazi but he was still breathing when we left him. Kandhai took us with him to kill this man. We all went and attacked Bazi Panka.
Dadu son of Shivadhari stated:
I beat Bazi but I did not take his life. Somehow he has died. He was treating my son by ojha and I believed he could cure him. As it went on I gave him money, but I was not satisfied. Thereupon Kandhai called me and I went. We beat him but he was still breathing slightly when we ran away. God had turned our heads and we did not know what we were doing.
5. In the Sessions Court they retracted their confessions and denied having made these statements before the Magistrate. All stated that they knew nothing about the murder.
6. It is clear that Bazi Panka was murdered sometime on that night. The post-mortem report shows that the death was caused by asphyxiation, the assailant or assailants, drawing around the neck something with great pressure. There were some minor injuries indicating some struggle. The twisting process had dislocated one of the vertebrae,. Death must have been instantaneous, the assailants obviously intending to take life by a process not involving the shedding of blood, superstitious avoidance reminiscent of thug gee and human sacrifice to Kali. The post-mortem report also indicates the' active co-operation of several assailants - one or more holding the victim and one or Snore pulling the cloth or cord around the neck.
7. Coming to the direct evidence, the statements of Sadhu Teli, of the dead man's wife and of Ram Lakhan are all to the effect that the dead man was last seen at night with the three appellants, who were insisting upon immediate cure and were threatening the ojha with consequences. He was murdered shortly after, in course of the night, not far off from Kandhai's house, and was left on the road. So much is beyond doubt.
8. However, I do not consider it safe to believe the two eye-witnesses Paramsukha Ram and Dalsingha. Their vivid picture of the killing corroborates the inference from the P.M. report; but any body who saw the corpse could really guess the modus operand!. It is true that the appellants have not proved that these two witnesses have any reason to wish them ill; still I would not accept their evidence. They were examined not on the day of the arrival of the police but on the next. Considering that it was local sensation this delay in their going to the police shows their anxiety to keep out of the investigation. They see a fellow human being dispatched in a cruel manner, but do not shout or call for help, or lift a single finger to save him. They do not tell anybody or report to the authorities, but kept quiet for two days just as if nothing had happened. It is provable that quite a number of the villagers knew of this murder, if not during its commission, at least very soon after. They seem to have been perfectly satisfied at the disappearance of the witchdoctor, who seems by no means to have been a local favourite. A man who quietly looks on at a murder may not necessarily be an accomplice; but he is not' a safe witness against the alleged murderer.
9. In regard to Dalsingha Brahman, there is one more point also. The officer has noted in his case diary, a gist of what Parasurarq had stated, and has followed it with a note that 'Dalsingha also corroborated him', which is really no statement but a mere opinion or impression. Even before the amendment of Section 161, Cr.P.C. by the insertion of the new Sub-clause (3), this manner of writing the diary was wrong; now it is clearly illegal. Each witness should be examined separately and the answers recorded not verbatim, but in the form of a gist, clear enough to convey a correct idea, and sufficient to enable the Court, if the defence draws attention, to see whether the story has materially varied in the evidence. Its absence deprives the accused of one of the ways in which he can attack the credit-worthiness of that witness.
10. This takes us to the statements the accused had made on different occasions. Firstly, we have the statement of Sadhu that Kandhai confessed to have committed the murder along with Dadu son of Ram Ratan and Dadu s/o Shivadhari. When there is no pressure or threat and the extra-judicial confession is made freely, there is, in principle no bar to admissibility. But the real difficulty is one of prudence and not of principle. If a confession is written down immediately, we know what exactly was said by the confessing accused. Where the confession is recorded in the manner provided in Section 364, Cr.P.C. we also know what questions were put and are in a position to reconstruct the scene. This reduces considerably, if it does not eliminate, tricks of memory and misunderstanding of the words used by the accused. But an extra-judicial confession is usually carried in the memory of untrained, and often uneducated, witnesses. They may be acting in strictest good faith, but that is no guarantee against unintended tricks of memory, and the unavoidable tendency for the witnesses' own preconceptions, an subsequent impressions, colouring the mental record of the earlier conversation. The absolutely unmistakable nature of the language used by the accused, the special mental training of the witness, and his immediate report to somebody in authority, who makes a written record, these provide safeguards, which might render it safe to look into an extra-judicial confession. But these are not available in the present case. So I reject the extra-judicial confession, though I have no doubt about the honesty of the witness who deposes to it.
11. Then come the confessions recorded on 6.10.52 by the Tahsildar Magistrate who has been specially empowered under Section 164, Cr.P.C. The record and the evidence show that there was no apparent pressure or persuasion. The cautions prescribed by Section 164, Cr.P.C. have been generally observed; but there has been one serious slip. Before questioning each of the accused generally about whether there had been any threat or whether he was making the confession voluntarily, the Magistrate asks:
Do you know that I am a Magistrate and that the statement that you might give may be used as evidence against you.
The accused answers 'yes. I know this'.
This is the wording in all the three confessions. Then there are other questions with which we are not now concerned. Nowhere during the questioning, has the Magistrate told any of them that 'he was not bound to make any confession'. It therefore difficult to be assured that the accused was not under the impression that once he were produced before a Magistrate, ho was bound to give some statement at that stage whether or not he really wanted to confess. The cautions prescribed by Section 164, Cr.P.C. are mandatory and are intended to assure that the confession is made freely, voluntarily, and with a full sense of responsibility. The failure to tell the accused that he was not bound to confess is certainly an omission of one of the cautions mentioned in Section 164, Cr.P.C. and calls for the rejection of the confession.
12. Then come the statements made under Section 209, Cr.P.C. The accused need not necessarily be examined at this stage, nor is he bound to give a statement then. There is certainly the general Section 342, Cr.P.C. which applies to all warrant cases, but when it is going to be committed there are later stages for the examination of the accused. On the other hand, before the commitment, the Magistrate may in the interest of the accused himself bring on the record anything he may say by way of explanation. The usual manner is to ask him after the completion of the prosecution evidence whether he wants to say anything. If he does give a statement, whether of an exculpatory or of a confessory nature the Magistrate has to record in the very words. Certainly, there should be no inquisitorial questioning, the aim being only to enable the accused to give his explanation if he likes. But if he makes a statement of a confessory nature, the Magistrate need not follow the procedure laid down in Section 164, Cr.P.C. Whereas during the investigation, the accused is not yet fully aware of the case against him, and has really no evidence before him calling for an explanation, after the evidence is recorded, he knows what the case is, and can be most properly presumed to realize his responsibility if he allows it to go unexplained. Any statement at this stage has to be recorded by the Magistrate, the only caution being against misunderstanding and inquisitorial questioning. In time it has to be tendered under Section 287, Cr.P.C. and becomes evidence. Such a statement is certainly of greater weight than a confession properly recorded under Section 164, Cr.P.C. I have already quoted these statements in extensor they admit a joint and intentional attack but they disclaim any real intention to take life, they plead that they ran away even when their victim had still some signs of life.
13. Subsequently, in the Sessions Court, they denied having given this statement. In theory a retracted plea is of greater force than a retracted confession; but it is only prudent that in the one case as in the other, there should be good independent corroboration also before the retracted plea is acted upon. Each of the three stated that he attacked the dead man along with two others; this being retracted, it is altogether without any force as against the accused other than the maker of the statement. But this is of no practical importance here as each of the three has given a statement exactly to the same effect. The independent corroboration comes from circumstantial evidenced Firstly, that they were seen together with the dead man shortly before the time of murder, they being in fact the very last persons seen with him. They had also given out that in case their relations were not cured, they would teach a lesson to the ojha. Thirdly, the murder itself had Deen committed by several men acting together. These in my opinion form sufficient corroboration and justify the finding that these three made the fatal attack. They, no doubt, state that they did not intend to take life, but one has to only see the modus operandi, and the result that was the most probable one. The man was held down, his neck was twisted, & he was strangled by a cloth or a cord being passed round and pulled from opposite ends. The common intention of the assailants, therefore, was to take life1 without spilling any blood; each of them actively co-operated in the process, which made death the most probable, in fact the inevitable, result.
14. In agreement with all the assessors, the learned Sessions Judge has convicted these men under Section 302 read with Section 34, I.P.C. This is, in fact, only the proper finding. I am not sure of the wisdom of his not awarding the extreme penalty; but he was apparently moved by this being an offence of superstition. The conviction and sentence are upheld and the appeal is dismissed.