1. Machindra Majhi (respondent 1 and accused 1) has been acquitted of the charges under Sections 302 and 201, Indian Penal Code and his wife Lal Dei (respondent-2 and accused-2) of the charge under Section 364, Indian Penal Code. The prosecution case may be stated in brief.
Accused-1 reclaimed a piece of land called Suktaguva by clearing the jungle. There is a su-perstition amongst the aboriginals, the tribe to which the accused belong, that the land is haunted by evil spirits. A kusum tree stood on the Sunktaguva land. It was not cut down in the process of clearance as it was believed to be the abode of deity Maili Debata. To appease the deity the accused wanted to make a human sacri-fice.
On 21-4-1962 in the morning, deceased Tuta, a boy of three years, was playing with two other children Ugra and Bilam, who are respectively the grand-son and grand-daughter of the accused. Urlu Majhi P. W. 2, a boy of 8 years, was grazing his goats under a Mohul tree near about the place where the children were playing. While P. W. 2 tried to collect his goats, he saw that accused 2 picked up the deceased and carried in her arms towards Suktaguva land. Sometime later accused 2 again came back near the Mohul tree and took her grand-son and grand-daughter to her house. P. W. 2 asked accused-2 about the whereabouts of the deceased, but she denied knowledge. As the deceased could not be traced out, the mother (P. W. 7) made a search for him and learnt from P. W. 2 that accused-2 had taken the boy towards Suktaguva land. To P. W. 7's enquiry, accused-2 stated that she did not know the whereabouts of the boy. There was a thorough search thereafter, but the boy could not be found.
On 23-4-1962, P. W. 10, the father of the deceas-ed, lodged a missing report (Ex. 11) stating therein that his son was u'ntraced. On. 30-4-62, Murla Majhi, P. W. i, Laxman Majhi P. W. 4 and some others had been to Sudan dangar to hunt hares, At the time of their returning back they found the dead body of a male child lying in the midst of stone in the dangar. P. W. 10 was sent for, he identified the dead body to be his deceased son, At 10 p. m. on that day, F. I. R. (Ex. 1) was lodged.
Accused-1 in company of P. W. 4 and others gave watch over the dead body during the night. At about midnight accused-1 made an extra judicial confession before P. W. 4 that he sacrificed the deceased before the deity in his Suktaguva land. On 1-5-1962, P. W. 4 disclosed to P. W. 11 (Bali Majhi) the extra-judicial confession. This is how both the accused were under prosecution. The de-fence is one of complete denial.
2. The learned Sessions Judge, after discussing the various pieces of evidence, held that the prosecution failed to establish its case beyond reasonable doubt. There is no dispute that the boy Tuta Majhi is dead. The learned Judge, however, holds that it cannot be said with any amount of certainty that the death of the deceased was homicidal. This finding, based on the evidence of the doctor, P. W. 12 is unsustainable. P. W. 12 clearly stated that the neck injury could be caused by either of the two knives (M. Os IV and VI) and the injury could cause instantaneous death. There was a suggestion to him that as the dead body was in a highly decomposed condition at the time of post-mortem examination held on 3-5-1962, it was not possible for him to say that there was a cut injury on the neck. This suggestion was denied. The statement on the basis of which the learned Sessions Judge came to the conclusion that the death might not be homicidal is--
'The cut injury found by me on the throat of the dead body was possibly homicidal. As the dead body was in high stage of decomposition no definite opinion could be given.'
This statement does not establish that the doctor was not sure of the existence of the cut injury. P. W. 12 was not sure whether it was homicidal or not. The suggestion to the doctor is as much fantastic as the answer given by him. Once the cut injury was found on the neck, which would cause instantaneous death, the injury could not be result of a suicide committed by the deceased who was only 3 years old. It must necessarily be homicidal. I am, therefore, unable to accept the finding of the learned Judge, and am of the opinion that the death was homicidal.
3. I would now examine if accused-2 carried away the deceased in her arms as deposed to by P. W. 2. P. W. 2 is the son of Tepra Majhi P. W. 3, who is the younger brother of accused-1. No reason has been assigned as to why P. W. 2 would at all implicate accused-2. He does not even implicate accused-1. If tutored, he could implicate both. His positive statement on solemn affirmation is that his aunt (accused-2) came from the Suktaguva land, picked up the deceased and took him in her arms towards Suktaguva land. To his question about the whereabouts of the deceased, she replied in the negative.
On a perusal of his evidence, I am fully satisfied that he is a witness of truth and has successfully stood the test of cross-examination. The only comment made against him is that he is a child witness and as there were no preliminary questions put to him to test whether he understood the questions put to him and gave rational answers, his evidence is inadmissible. Despite the caution given by their Lordships of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, it is remarkable that the learned Sessions Judge absolutely made no record of his own opinion. For that reason alone, however, the evidence of P. W. 2 is not inadmissible.
Section 118, Evidence Act, enacts that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The section has been worded negatively. If the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take the evidence of that witness. Where there is absence of record, but yet the Court proceeds to record the evidence, it must be taken that the Court considered the witness as competent to testify. There is no provision in law to ask preliminary questions to test the capacity of a child witness to testify, though it has always been taken to be a wholesome course to be adopted. The object of such preliminary questioning is not to legalise the evidence but only to save time of the Court not to further progress in the examination of such witness if it is satisfied that the child is not a competent witness. If in fact the child is examined as a witness, the best test of his capacity to testify is the evidence itself and the manner in which it is given. There is nothing illegal in the procedure if the Court satisfies itself by recording the evidence straightway without resorting to preliminary questions : Daru Singh v. Emperor, AIR 1942 Pat 159 and Lakhan Singh y. Emperor, AIR 1942 Pat 183. On a perusal of the evidence of P. W. 2 I am satisfied that he fully understood the questions, gave rational answers and was competent to testify. The learned Judge took his evidence on oath.
P. W. 2 told his father (P. W. 3) in the morning of 22nd that the deceased had been taken away by accused-2 towards Suktaguva land. P. W. 3 made enquiries from both the accused who disclosed complete ignorance. As they feigned ignorance, he did not inform the villagers about what he heard from his son. P. W. 7, the mother of the deceased, and P. W. 10 the father of the deceased, also deposed to the fact that P. W. 2 intimated them that the deceased had been taken away by accused-2 towards Suktaguva land. They have stood the test of cross-examination. They being closely related to the accused, there is no reason why they would falsely implicate accused-2. On the evidence of these four witnesses, I am satisfied that P. W. 2 saw accused-2 taking the deceased in her arms towaids Suktaguva land and that he narrated this fact to P. Ws. 3, 7 and 10.
The learned Sessions Judge discarded their evidence on the ground that if P. W. 2's statements were true, it would have been mentioned in the missing report (Ex. 11) and that the accused would have been arrested soon after. There is no much force in this criticism. Accused-2 is very nearly related to the deceased. The deceased carried no ornaments on his body. When on confronting accused-2 denied knowledge of the whereabouts of the deceased, P. W.s 3, 7 and 10 and other villagers did not entertain any suspicion about her complicity. Once the dead body was recovered and the extra judicial confession by ac-cused-1 was made regarding his complicity in the murder, the statement of P. W. 2 that accused-2 carried the deceased in her arms towards Suktaguva land loomed large. In such circumstances, the prosecution case cannot be subjected to the criticism that P. W. 2 was tutored to involve accused-2. If that was so, he could have been also tutored to implicate both the accused. I accordingly hold that accused-2 took away the deceased in her arms towards Suktaguva land. Whether on this ground accused-2 is guilty of any offence would be considered later.
4. I will now proceed to examine if the charges have been made out against accused-1. The learned Sessions Judge considered various circumstances against him item by item and gave him benefit of doubt. His very approach is vulnerable. He should have first examined if the extra-judicial confession made by accused-1 was voluntary and true and as it was retracted if it was corroborated. The law on this point is now well settled. If the extra-judicial confession is voluntary and true, it can constitute the basis of a conviction. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not an invariable rule that the evidence regarding extra-judicial confession is not acceptable unless the actual words used are given. It is always a question of fact to be determined in each case if such evidence is acceptable or not. Mulk Raj v. State of U. P., AIR 1959 SC 902.
P. W.4's statement regarding the extra-judicial confession may be quoted. --
'Then he told me that he was very much afraid after discovery of the dead body. I asked Machiadra as to why he was afraid. He replied he had killed Tuta and sacrificed him to the deity of Suktaguva land and that is why he was very much afraid, after discovery of the dead body of the child. Having said so Machindra began to weep and did not sleep in that night. The accused Machindra also requested me to take him to the member of the village that he would be arrested for having killed the child and therefore he should take care of his wife and children. Next morning I reported this fact to the member of the village Bali Majhi and thereafter went away to my father-in-law's house Serged.'
It is somewhat remarkable that no cross-examination was made to effectively demolish this version. Mr. Das emphasised on the following statement in the cross-examination. --
'The accused Machindra told me that his predictions became true and therefore he was afraid that he might be arrested by Police. The accused Machindra did not tell me that the villagers may blame him for sacrificing the boy. I told him that if he had sacrificed the boy he would be arrested, or else he need not be afraid. There was no other talk between us.'
The answers so elicited do not militate against the statement made in examination-in-chief. From the answer that there was no other talk between them, it cannot be said that there was no talk as narrated in examination-in-chief unless his attention was specifically drawn to it. There is absolutely no suggestion against P. W. 4 as to why he would invent a false story against accused No. 1. In fact, next morning he narrated the story to P. W. II, who is a respectable person and whose veracity is unquestionable. He is a Ward member, Naib Sar-panch and the Vice President of the Grain Gola. In substance, he narrated the story which P. W. 4 gave. The only cross-examination made to him is--
'It is not a fact that Laxman did not tell me anything regarding extra-judicial confession of the accused.'
P. W. 11 corroborates P. W. 4. Both are reliable witnesses and there is no reason to discard the extra-judicial confession as being not true. There is no suggestion that it was not voluntary. It was made in the midnight when both P. W. 4 and accused were giving watch over the dead body. It is not unlikely that accused-1 might have a psychological breakdown at the critical moment. The learned Sessions Judge discarded the extra-judicial confession on the ground that the accused was not arrested until 3-5-1962 though P. W. 11 had been examined by the police on 1-5-1962. The explanation given by the prosecution that P. W. 4 had been to his father-in-law's house and was not available till 3-5-1962 for examination by the Police and that P. W. 11's statement is not to be acted upon until the examination of P. W. 4, is very plausible. P. W. 11's statement on the extra-judicial confession is hearsay if P. W. 4 is not examined. P. W. 4's evidence is substantive. Until the substantive evidence is taken, the police is not justified in arresting the accused merely on the corroborative evidence of P. W. 11. The reasons given by the learned Judge for rejecting the evidence of P. Ws. 4 and 11 are unsatisfactory.
It is now necessary to examine if the retracted extra-judicial confession has been corroborated. Accused-i in his statement under Section 342 Criminal Procedure Code admitted that he had been to his Suktaguva land in the morning of 21-4-1962; but he denies to have gone towards Suden dangar. P. Ws. 5 and 6 found accused-i going towards Suden dangar. P. W. 5 deposed that accused Machindra was going towards Suden dangar with a bundle which he had kept in his left armpit, but the bundle was visible. P. W. 6 also gave the same story. Both these accused belong to village different from that of accused. They have no axe to grind against the accused. Nothing has been suggested against their veracity. Their evidence has not been accepted by the learned Judge as they were examined by Circle Inspector (P. W. 16) on 5-5-1962. No suggestion has been put in cross-examination either to these witnesses or P. W. 16 as to why they were examined on 5-5-1962 and not earlier. In the absence of any explanation being elicited from them, the learned Sessions Judge was not justified in discarding their evidence. I am satisfied that P. Ws. 5 and 6 gave a true story and their statements corroborate the extra-judicial confession. The learned Judge unnecessarily attached great importance to the discrepancy in the evidence of various prosecution witnesses regarding time. Most of the witnesses were aboriginals. All of them come from that backward area having no idea of time. No importance should have been attached to their statements regarding difference in time.
Accused No. 1 admits that two knives (M. Os. IV and VI) belonging to him, were recovered from his house. The evidence of the doctor P. W. 12 is that the cut injury on the neck of the deceased could be caused by the knife (M. O. IV). P. W. 11 and the I. O'. (P. W. 15) testified that accused No. 1 led the I. O. to his house and gave discovery of M. O. IV from inside a bag (M. O. V) M. O. IV, which can be the instrument of murder, contained blood stains though the Serologist could not say that it was of human origin on account of disintegration. In his statement under Section 342, Criminal Procedure Code Accused-1 stated that M. O. IV did not contain any blood. The statement of P. W. 11 that the accused had at one stage stated in presence of the police that he cut a fowl with M. O. IV is hearsay and is inadmissible. The accused himself does not give that statement. M. O. IV which can be the instrument of murder containing blood stains, was discovered from the house of the accused on his own information. It is admissible in evidence and corroborates the extra-judicial confession.
The accused also gave discovery of a piece of paper containing vermillion and Arua rice lying under the Kusum tree in Suktaguva land. For human sacrifice these articles are used. The discovery made on the basis of this information corroborates the extra-judicial confession that the sacrifice was made in Suktaguva land.
The admission of the accused in his statement under Section 342, Criminal Procedure Code that he went to Suktaguva }and in the morning also corroborates the extra-judicial confession.
The finding that accused-2 took the deceased in her arms towards Suktaguva land and he was last seen with accused No. 2 going towards the Saktaguva land corroborates the extra-judicial confession that the sacrifice of the deceased was made in Suktaguva land.
All these aforesaid circumstances corroborate the retracted extra-judicial confession. Accused No. 1 is therefore liable to be convicted under Section 302, Indian Penal Code and also under Section 201, Indian Penal Code for concealing the dead body in Sudan dangar towards which he was proceeding with a bundle in his arms and in which the dead body was discovered.
5. I find that accused-1 is guilty of the charges under Sections 302 and 201, Indian Penal Code and on the finding that the deceased was last seen in the arms of the accused No. 2 whereafter he was untraced and murdered, accused No. 2 is guilty of the charge under Section 364 Indian Penal Code. She kidnapped the boy Tuta in order that he may be murdered.
6. I have considered all the reasons given by the learned Sessions Judge. I am aware of the position that the presumption of innocence of the accused has been reinforced by the factum of acquittal. On a thorough scrutiny of the evidence I am, however, satisfied that the view taken by the learned Judge is an unreasonable one and cannot be supported.
7. The accused belong to the aboriginal class and acted under superstitions that they would appease the deity by making a sacrifice of the deceased on Saturday as he was born on Saturday. Accused No. 1 is convicted under Section 302, Idian Penal Code and sentenced to imprisonment for life. He is also convicted under Section 201,Indian Penal Code, but no separate sentence needbe passed. Accused No. 2 is convicted under Section 364, Indian Penal Code and a sentence offive years rigorous imprisonment would meet theends of justice as she acted on the direction of her husband.
8. In the result, the appeal is allowed, the order of acquittal passed by the learned Sessions Judge is set aside and the respondents are convicted and sentenced as already stated.
9. I agree.