1. The appellants have been convicted of murder and sentenced to transportation for life. The deceased Godra Jani is to oar tain extent a relation of the appellants having married their mother, the first informant, after she was divorced by their father, Dalima Praja, who, it is said, is still alive. It is Bug. gested by the prosecution that the appellants felt aggrieved that the deceased Godra Jani had kept their mother as a wife. Besides there were oertain other reasons, suoh as, Godra Jani having practised witchcraft and having thereby killed one of the brothers of the appellants which caused oertain animosity against him. On the date of occurrence (8th July 1946), the appellants, Godra Jani, P.Ws. 2, 3, 4, 5, 10, 11, 12 and several other persons about 10 to 20 in number had gone to cremate the dead body of one Biting Kondhuni, appellants' father's elder sister The cremation was over some time in the morning. As customary, the entire party proceeded to a liquor shop for having a drink. The shop is in village Khamarpadar on the side of river Indravati The road to village Indravati iscros3ed by the said river. They had their drink and as it appears from the evidence adduced for the prosecution, they all became heavily drunk. After finishing their drinking, they came back home. On the way there ensued an altercation between the accused Turkul and Godra Jani, deceased, Turkul accused him of having kept his mother as a wife and having exercised witchcraft on his deceased brother and the child. Godra took this insinuation to heart and gave a slap to Turkul on which scuffle ensued. Godra somehow or other extracted himself from the grip of Turkul and fled into the nearby jungle. He was chased by the appellants It is said, inside the jungle he was done to death and his dead body was thrown into the river Indravati. This is the short story about the occurrence These facts, however, are not to be found in the first information report, lodged by the deceased's widow, Balmundi Prajani, though the report was made on the next day (9th July 19i6) at 2 p. m. at the police station which is 5 miles away from the place of occurrence. The facts, so far known to the first informant, were that her husband and the party went to have a drink at the liquor shop on the morning of 8th July 1946 and in the evening of that day all except her husband returned home. On her querry, she could not get any information as to the whereabouts of her husband on which she, in company with certain other persons, amongst whom this is worth mentioning were Gurubaru Praja, the first appellant, and Bite Gomtia, P W. 5 uterine brother of the deceased, Godra Jani. The only search that they made that evening was at the liquor shop where they were informed that all those who had come to drink had returned. Next day before lodging the report with the police, there was another search. In this seach, besides the persons already named, second appellant, Turkul Fraja also joined. In course of this search they came upon the place of occurrence, where they found some stones containing blood-like stains and some foot-prints leading to the river and nothing more. On this the first information report was lodged in which, as is expected on the facts of this case, nobody was named as accused but a suggestion was made as to the probable suspects in connection with the crime. The following is the passage which can be quoted in this connection :
Dali Parja of village Chirkulguda was my husband, I ran away from him and I am living with Godra. I suspect that Dalimo Praja killed him with the help of his men. None except him killed him. Hence I lodge this report.
It is to be noted that in her evidence in Court, she went back upon her statement that she had run away from her former husband and had been living with Godra and as such she had been divorced from Dalimo. In all probability, the statement in the first information report is the comet version to be accepted a3 otherwise there would be no animosity left in Dalimo and his sons against Godra.
2. A literate constable recorded the first information report in the absence of the officer-in-charge of the police station and the head constable as well It is he who visited the spot; that day and collected inhabitants of the place on the 10th morning. In course of that day. he discovered the dead body from the river being led to the place on account of certain informa-tion received from the appellants and in consequence of their pointing out a place where the dead body is said to have been thrown. Ha sent the dead body to the doctor for post mortem examination according to whose opinion the death must have been caused by very severe injuries inflicted on the head of the deceased, I shall deal with the report of the post mortem examination in more detail presently. He also found Biri Gountia, deceased's brother, to have certain injuries on the nose and sent him for medical examination. The Sub Inspector came to the spot towards evening of 10th and took over charge. In course of his investigation, he examined a number of witnesses including P.Ws. 2, 3 and i, who deposed to have seen the occurrence. He produced the accused persons before the Magistrate for recording their confessions.
3. Ultimately the prisoners were tried in the Court of Sessions and have been convicted and sentenced as above.
4. The evidence against the accused persons can be classified into three classes, namely, (i) their statements admitting their guilt to the police while in police custody in consequence whereof the dead body of the deceased was recovered from under the water of river, Indravati; (ii) the confessional statement of Turkul in which he admits to have murdered the de. ceased and to have thrown his body into the river and the statement of Gurubaru in which he admits having thrown the corpse into the river along with his brother, Turkul, but doss not take any share in the crime of murder; and lastly (iii) the direct evidence of the eye-witnesses, namely, P.Ws. 2, 3 and 4.
5. Mr. G. B. Mohanty, in his very careful arguments, has taken exception to the admissibility of the statements made to the police and the confessional statements as recorded by the Magistrate. With regard to the direct evidence, his criticisms are that the witnesses are not reliable and even if their evidence, as recorded, is accepted, it does not go to the full length of establishing the guilt of the accused persons.
6. As regards the statements leading to discovery, the evidence is that of the police constable and of the witnesses, p. WSection 10 and 11. The constable is p. W 7, Hrishikeah Patnaik, His evidence on the point at issue is :
I questioned the accused persona as what did you do with the dead body. Upon this the accused peaces told 'we threw away the dead body in the river' and pointed out the place.
P.W. 10 says :
Turkul and Gurubaru than told 'we threw the dead body in the river and pointed out the placs where Bikram (P.W. 9), one Gurubaru, who is since dead, and Khuja entered into the water and searched for the dead body and found it'.
He, however, in cross-examination, said that the accused persons did not make the statement, but in answer to Court's question, said that they showed the place from where the dead body of Godra was found out. P.W. 11 corroborates the evidence of the constable and further adds that the accused persona pointed out the place from where the dead body was discovered. Mr. Mohanty argues that this joint statement is not admissible Under Section 27, as it is not definite as to whose statement it was which led to the discovery. In support of his contention, he has invited our attention to several decisions, namely, Fahira v. Emperor A.I.R. (16) 1929 Lah. 665 : 30 Cr. L, J. 639; In re Mahboob A.I.R. (29) 1942 Mad, 532 (1) : 13 Cr. C. J. 772 and Durlav Namasudra v. Emperor, 59 cal. 1040 : A.I.R. (19) 1932 cal. 297 : 33 Cr.L.J. 516. So far as the joint statements are concerned, Faqira and Ors. v. Emperor A.I.R. (16) 1929 Lah. 665 : 30 Cr.L.J. 639 is not an authority. It was not a case of joint statement but it was a case of joint pointing out. The ratio of this decision is contained in the following passage:
It has been frequently pointed out by this Court that these joint discoveries are not admissible at all against any of the accused unless it can be shown who first made the disoovery. If Section 27 is to be used then since the information has been supplied by the first person to the police subsequent pieces of information are not informations leading to any disoovery.... It is impassible in this case to say who pointed out or what exactly was the gesture employed by which the accused can be fastened with the oonduct relevant to the facts In issue. There is a vague statement that all theaocused pointed out the place, but I do not think that this evidence can be used againat any of the accused at all.' It appears from this that the question of joint statement was not before his Lordship and any observation in relation to that must be taken to be obiter dicta. The case of Durlava Nama. sudra v. Emperor, reported in 59 Cal. 1040 : A.I.R. (19) 1932 cal. 297, 13 a case in point, where just, as it is here, the evidence of Sub-Inspector was to the following effect :
On the forenoon of 13th July 1930, I proceeded to Abdua tank with the accused Durlava,Kola, Kama and Abhay and certain other witnesses. I went to that, tank in consequence of the information given to me by all the four accused named above that the dead body of Rai Namasudra was concealed in the tan with stones tied to it.
With reference to the admiasibility of this evidence, his Lordship C. C. Ghose J. said :
'Now, apart from the question whether these persons were in the custody of the police, it is quite clear that the statements of the persons other than the first person who made the statement cannot be used in evidence. The statement made by the list individual Under Section 27 and in the circumstances described therein may be treated as evidence against him ; but it is not allowable, under the provisions of law, to treat the evidence of other persons who may have made statements of the description referred to in Section 27 as evidence admissible under the provisions of that section.
7. As pointed out by my learned brother in course of the argument, a thing cannot be discovered several times. If, in consequence of an information, given by one of the several accused persons, the incriminating material is discovered, it does not remain to be discovered within the meaning of' Section 27, Evidence Act, in consequence of any subsequent information, given by any other. That would amount to discovery of a thing already discovered. Taken in thi3 sense, the word 'discovery' will lose its meaning. Apart from the question of principle, the evidence is not clear as to who gave the information first and who next. Had it been known, we could have held the statement, made first by one of the two accused persons, as admissible in evidence against him; but the evidence is too vague to lead us to any conclusion as to which of the accused persons made the statement in consequence whereof the dead body was discovered first. The next case relied upon is that of In re Sheik Mahaboob accused, reported in A.I.R. (29) 1942 Mad. 532 (1) : 43 Cr, L. J. 772, wherein it is said, if the police discovered the whereabouts of the stolen article from the statement of one accused then the statements of other accused would not be admissible because they did not lead to any disoovery. The reason, given by his Lordship, is just the same a3 was pointed out by my learned brother. With reference to the facts of that particular case Hor-will J. said :
Since there was no evidence that the accused 4 made the crucial statement, or that be led the police to the place where the stolen articles were found, he should be given the benefit of the doubt and acquitted.
These reasonings can be employed in this particular case to each one of the accused by Baying that there is no evidence to show that either Gurubaru or Torkul made the crucial statement which led to the discovery, the evidence relating to its being very vague. Nest remains the question whether the evidence of P.W. 10 that both the accused persons pointed out the place from where the dead body was recovered is admissible and can be acted upon, The decision of the Lahore case is against this view. I should, however, for the present, reserve my opinion about it. I do not share the view of the learned Judge who decided the Lahore case, but as the point does not arise for consideration, it need not be decided. P.W. 10's evidence cannot be safely relied upon as he was a hostile witness before the Committing Magistrate and in the Court of the Sessions too. In the result, the joint statement and the joint pointing out, as they are in this particular case, cannot be held admissible in evidence to establish the guilt of the prisoners.
8. With regard to the confessional statements referred to above, the objection of Mr. Mohanty is that the method of questioning of the learned recording Magistrate did not disclose that the statements were made voluntarily. In this connexion too, he has referred to us several decisions of the Patna and other High Courts and that of the Privy Council. The leading case on the subject is that of Jslazir Ahmed v. King Emperor, reported in 63 I.A 372 : A.I.R. (23) 1936_P,.C.JS63 : 37 Cr.L.J. 897. The other cases cited by him are, Emperor v. Jamuna Singh and Ors. A.I.R. (34) 1947 Pat, 805 : 25 Pat. 612 (a case to which I was a party), Emperor v. Kommoju Brahman A.I.R. (27) i9iO Pat. 163 : 11 Cr.L.J. 533, Ragho Laya v. Emperor, 18 Cr.L.J. 721 at p. 724 : R. I, R. (4) 1917 Pat. 322, Emperor v. Nazir and Ors. 55 ALL. 91 Frs. p. 105 : A.I.R. (20) 1933 ALL 31 : 34 Cr.L.J. 489 and Punia Mallah and Ors. v. Emperor A.I.R. (33) 1916 Pat 169 : 48 Cr.L.J. 30. I do not propose to deal with each one of the cases. All these oases go to establish not only that the requirements of Section 164 are imperative but that the mere satisfaction of the recording Magistrate that the confession was made voluntarily is not enough but that both from his evidence as well as from what he has recorded in the form of questions to the accused and his answers, it should appear explicitly to the Judge, who has to consider the admissibility of the statement, that they were made voluntarily. In this case, Mr. Mohanty urgos that the Magistrate, besides undergoing the barest minimum of the formalities, has not strained his nerve to put any question so as to make it olear that the accused was making the statement voluntarily. The omissions, as urged by Mr. Mohanty, are that he has not asked as to the previous custody from which the accused was produced before him for the purpose of making the statement; he has not asked as to why he was going to make statement disclosing his connexion with the crime and so forth. He also takes exception to the insufficiency of the memorandum. The memorandum has been statutorily provided for in tha section. In the memorandum of the present cage, the portion that has been added by the Amending Act of 1923 is absent. We do not know whether the Criminal Procedure Code Amendment of 1923 was extended to the Kalahandi State. But, however, if the Magistrate put sufficient questions and made sufficient enquiries so as to show that he applied his mind to elucidate the yoluntary character of the statement, it would not do to rule out the confessional statement for mere omission, as pointed above, in the endorsement. In order to satisfy ourselves as to the cogency of this argument, we examined the record and we found that the accused persons were apprehended on 10th July and were produced by the police before the Sub-Divisional Magistrate for the purpose of recording their confessional statements on the 14th and as circumstances would have it, their statements could not be recorded till 30th July 1946. During all this time (from 14th to 30th) the accused persons had never been remanded to jail custody but were moving from place to place in the custody of the police who must have been connected with the investigation of the case. When they were produced before the Magistrate who recorded the confession, he gave them 2l hours' time for reflection. After the record of the confession they were remanded to jail custody. Under the circumstances, we cannot imagine what should have been the Magistrate's decision as to the time for reflection had he ascertained that since their arrest, the accused persons had always been in the custody of the police. The object of the provisions of the Evidence Act which bear upon admissibility of confessional statements maile to the police and which deolare admissible only such statements as are proved to be true by discovery of incriminating articles and the provisions of the Criminal Procedure Code aim at voluntary character of the statements and for that purpose to ensure making the accused person completely free from the influence, if any, of the police on his mind which might have led him to make the confession. The observance of the safeguards is all the more necessary in a case where the accused retracts his confession. It has been pointed out over and over again that the Magistrates who have the task of recording confession should bear in mind that they have no jurisdiction to record until they satisfy themselves on making proper enquiries from the accused that he is making the statement voluntarily. In this connexion, I should recommend the observation of Straight A. C. J. of Allahabad High Court as quoted in Emperor v. Nazir, 55 all. 91 at p. 105 : A.I.R. (20) 1933 all 31: 34 Cr. h. J. 489. The Magistrates sometimes think that they help the cause of the prosecution in the interest of justice in not probing too much into the accused's mind before recoring the confession. This is high time that they should now realise that by the perfunctory performance of their duties they mar the cause of the interest of justice. In the circumstances of the present case, we are not satisfied that the confessional statements of the accused persons as recorded Under Section164, Criminal P. On are admissible in evidence.
9. It is a pity, however, that even though the prisoner, Turku], in his statement in the Court of the Committing Magistrate did not retract from the confession but stuck to it, his statement was never read out and explained to him either by the Committing Magistrate or by the learned Sessions Judge. Had not this deficiency occurred, his confessional statement made to the committing Magistrate and admitted in evidence in the Court of Sessions should have been admissible and could have been acted upon in establishing his guilt. Under the cireumstances, we have to exclude that as well. Mr. Government-Advocate has invited our attention to the memorandum of appeal presented to this Court from jail and urged that here too, he has admitted his guilt and his statement contained therein may be acted upon. I regret that I cannot accept this contention. There is abaolutely no evidence before us that this memorandum was properly written according to his statement. If this memorandum is admissible in evidence, I do not see any reason why should not his confessional statement recorded under Section 164 and his examination before the committing Magistrate, though not read out and explained to him, will not be admissible. The memorandum, therefore, is no evidence in this case. In my judgment, the confessional' statements, relied upon by the prosecution must be ruled out as inadmissible nor can the record of examination of the accused by the enquiring Magistrate be considered as evidence in the absence of anything on record to show that the same was read over and explained to the accused before it was admitted into the case record. Before leaving this part of my judgment, I should summarise the purport of the decisions bearing upon the question of recording of confession by Magistrate under Section. 161, Criminal P.C. and the requirements for their admissibility. As laid down-by their Lordships of the Privy Council, the requirements of Section 164 are imperative in their nature. Their Lordships have expressly said that when a thing is required by law to be done in a particular manner, not to do it in that particular manner amounts to not doing it at all. Notwithstanding that there has been a long series of decisions of which the number is a legion, the Magistrates still proceed in their own way of inadvertence and perfunctorine33 in recording the confesaional statements. They consider themselves not to have to do any judicial work as it were in performing this part of their duties. They sometimes act in such a way that they leave an impression as if they think themselves subservient to the investigating police though I am quite sure that they are not so. It has always been said on high judicial authority that that justice should be done is hardly more significant than that it should appear that justice is being done. In this view of the matter I shall summarise the principles of law in the following paragraphs:
(i) Full and adequate compliance with the provisions of Section 164, Criminal P.C. is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record and reduces the statement recorded by him to a nullity.
(ii) Such compliance must net be undertaken, in the spirit of being done as a matter of form but as a matter of essence.
(iii) Every enquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned and the treatment that he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the accused's mind ; in case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during this time of reflection, he is completely out of the police influence.
(iv) Besides the warning specifically provided for in the first part of Sub-section (3) of Section 161, namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that was to follow, he should also, in plain terms, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement.
(v) He should particularly be asked the reason why he is going to make a statement which would surely go against his self-interest in course of the trial and he should, further be told in order to remove any lurking suspicion in his mind that even if he contrives subsequently to retract the confession, it will be evidence against him still.
(vi) The Magistrate which entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and that he must apply his judicial mind to the task of ascertaining that the statement he is going to make is of his own accord and not on account of any influence on him, That is what is the meaning of voluntary statement within the provision of the section.
(vii) Lastly, he should also consider it expedient that satisfaction of his conscience as to the voluntary character of the statement is not the only act to be achieved by him but he should Jeave such materials on record in proof of compliance with the imperative requirements of the section as would satisfy the Court that sits on judgment in the case that the confessional statement was made voluntarily. In short, the provision of the statute must be complied with both in letter and spirit.
10. Unfortunately however, notwithstanding all pronouncements in favour of the appellants' above contentions, the appeal has to be dismissed and the order of conviction and sentence has to be upheld. The case against the appellants has been thoroughly well proved by the direct evidence afforded by the eye. witnesses, P.Ws. 2, 3, and 4 and their evidence is sufficiently corroborated by the injuries that are found on the body of the deaeaeed by the Doctor on Post Mortem examination. The only serious comment that has been made against their reliability is that none of them disclosed anything about the occurrence before they were examined by the police on 11th of July, that is on 3rd day of the occurrence. This comment no doubt carries some measure of conviction, but in consideration of the habita of the people of this country, particularly of the undeveloped districts from which the case comes, there is nothing unusual in such conduct The members of the public are not yet consoioua of their duty, either legal or moral, to render such assistance, legitimately and lawfully, as they can to bring the offender to justice. Besides as it appears from the evidence, the people of the locality were more or less afraid of Turkul and until the police called them and confronted them they would not feel inclined to get into the trouble as they thought it to be by speaking out what they saw. Nothing has been brought on record to discredit any of these witnesses either on the ground of having any interest in the prosecution or any hostility against the accused. The lewned Court below made some exception with regard to P.W. 1 and said that he should not believe him unless he was corroborated by P. Ws 2 and 8, I do not, however, share the same view. No doubt, on account of his some relationship with the accused persons, there was an attempt to win him over but ultimately it appears to me that he withstood it and spoke what he saw.
11. Besides their evidence is corroborated by all surrounding circumstances in the case As the witnesses have impressed the trial Court as truthful witness ova, I see no reason to differ. In my judgment, by the evidence of those witnesses, corroborated as they are by surrounding circumstances, the charge has been brought home to the accused persons. Their appeal is, therefore, dismissed and the order of conviction and sentences passed against each of them is confirmed. My learned brother and myself would both like that the Government should issue a circular to all the Magistrates impressing upon them their duty in connexion with the recording of the confessional statements of the accused persons under S 164 and extracts from this judgment may be sent down to the Government to accompany the suggested circular.
12. I entirely agree with my Lord the Chief Justice.