1. The four appellants herein were convicted of murder of a woman in Keonjhar town under Section 302/34 Indian Penal Code. Appellant Dukhi Dei, was further convicted under Section 302/291 and 404/511. Appellants Dukhi Dei, Lokenath alias Loki Patra and Abdul Hague were sentenced to death subject to confirmation by this Court. Appellant Rangadhar Patra was sentenced to rigorous imprisonment for life. No separate sentence was passed on Dukhi Dei under Section 302/291 and Section 404/511. The learned Sessions Judge made a reference under Section 374 Criminal Procedure Code of confirmation of the sentences of death passed as aforesaid.
2. The prosecution case is that on January 7, 1962, Sunday between 3 P. M. and 7 P. M. the four appellants murdered the deceased Mandira Dei, wife of one Gopinath Giri, in the house of the appellant Dukhi Dei in Keonjhar Town. The date of the incident is said to be a market day. The murder is alleged to have taken place after the deceased was called to the house of the appellant Dukhi. Appellants Lokenath Patra and Rangadhar Patra (sons of one Udaynath Patra) and appellant Abdul Haque are all said to have been called at the instance of Dukhi Dei. The apparent purpose for which this meeting was initially arranged is said to be in connection with a monetary transaction involving the deceased (a creditor pressing for payment) on one side and all the accused appellants on the other who are said to have combined against the deceased. I shall deal with this involved motive aspect of the case hereinafter. After the murder the dead body was dragged and concealed in a corner of the back-ground of the appellant Dukhi Dei.
The deceased's husband P. W. 5 after returning home made enquiries about his wife and called at appellant Dukhi's house, where she is said to have gone. The deceased's husband was told that his wife had come but had gone away. The husband having failed to find out his wife filed a missing report at the local police station Ext. 9 at about 11 P. M. the same night. The following morning, January 8, 1962, a constable P. W. 17 searched and discovered the dead body in a corner of the backyard of the appellant Dukhi Dei. Thereafter, First Information Report was lodged by the husband of the deceased at 1-30, P. M. on the spot.
The only eye witness to the incident is said to be the appellant Dukhi Dei's daughter P. W. 2 Kunda Dei who is a child aged about 12 1/2 years. P. W. 2 Kunda Dei is said to have been examined by police on Tuesday January 9, 1962, and she is said to have narrated the entire incident in which she implicated all the four appellants including her mother Dukhi Dei. On the basis of the statement made by the eye-witness P. W. 2 Kunda Dei all the accused appellants were arrested. Accused appellant Dukhi Dei herself also made a confession on January 15, 1962. The said confession was recorded on January 17, 1962, (Ext. 1).
3. The defence was this: -
Appellant Abdul Haque, who is a butcher by occupation, took the plea of alibi stating that he was in the market at the time of the incident and in support of the alleged alibi one witness was called. Abdul Haque's further case is that out of enmity he was falsely implicated by the appellant Dukhi Dei and others.
Appellants Lokenath Patra and Rangadnar Patra denied their alleged complicity in the crime, Lokenath stating that he was falsely implicated out of enmity, and Rangadhar also stating that the allegations against him are false.
Appellant Dukhi Dei, while admitting the occurrence, pleaded not guilty, stating that she did not kill the deceased and that she (Dukhi Dei) was a mere spectator when the other three appellants killed the deceased.
4. At the trial the prosecution called as many as 24 witnesses and the defence called only one witness who gave evidence for appellant Abdul Haque in support of his alleged plea of alibi as aforesaid. The prosecution witnesses include P. Ws. 2 and 3, two daughters of appellant Dukhi Dei, P. W. 4 her husband, P. W. 5, husband of the deceased, P. W. 6 doctor, P. Ws. 8, 9 and 10, the three neighbours of the houses adjacent to the appellant Dukhi Dei's house, the place of occurrence. P. Ws. 14 and 19 are among the corroborating witnesses for the prosecution.
5. At the trial the prosecution case mainly rested on the motive for murder; confession of the appellant Dukhi Dei, circumstantial evidence, namely discovery of dead body of Mandira Dei covered up in the backyard of appellant Dukhi Dei, confession leading to the discovery of the ornaments of the deceased and the Bale (axe) -- the weapon of offence; the medical evidence consistent with murder theory; the fact of the deceased visiting appellant Dukhi Dei's house at the alleged time; evidence of the witnesses seeing appellant Lokenath Patra, Rangdhar Patra by the vicinity and Abdul Haque coming to and going away from the scene of the crime, and lastly the evidence of the eyewitness P. W. 2 Kunda Dei. The learned trial Judge rightly ruled out the confessional statement of appellant Dukhi Dei out of consideration as a self-serving statement.
6. The learned trial Judge, after careful examination of the entire evidence as fully discussed in his judgment, came to the finding that the prosecution had proved beyond any doubt that the accused appellants were all guilty of the crime of murder. Apart from the direct testimony of the eye-witness P. W. 2 Kunda Dei, the learned trial Judge took into consideration the admitted position, -- with regard to which there can be no controversy, -- namely this : the deceased had advanced money to appellant Dukhi Dei which had been given to the father of appellants Lokenath Patra and Rangadhar Patra; on the date of incident at the time alleged the deceased had been called to the house of appellant Dukhi Dei; the fact that the dead body of the deceased was found in the back-yard of the appellant Dukhi Dei; recovery of some blood stains in the room (point '8' in the spot map) where the murder is alleged to have taken place and which on chemical examination shows existence of human blood; recovery of Bala M. O. I (axe) which belongs to appellant Dukhi Dei and which had been kept hidden; the fact that the silver bangles of the deceased and the gold neckless were kept hidden under water in the small compound of appellant Dukhi and the recovery of the came.
The learned trial Judge was justified in draw-Ing from these admitted facts an inference that the deceased had been done to death on the alleged day, time and place with some design; that the room at point 'S' in the spot map is clearly the scene of the murder; that the weapon (Bala) had been used to kill the deceased and further that the recoveries show the motive behind the murder. This, in short, forms the basis on which the appellants were convicted as aforesaid.
7. The point for consideration before this Court is whether on evidence the trial Judge was justified in this conclusion about the complicity of the four appellants in the crime. I must at the very outset make it clear that all the defence attempts to throw cloud on the prosecution case lose their force in the face of the positive evidence of the eye witness P. W. 2 Kunda Dei. Her narration in gist about the actual murder is this: -
'In our house, all the accused and the deceased had some conversation regarding money matters. This talk was in a broken room and I could not catch glimpses of the talk. Suddenly A-4 (appellant Abdul Haque) gagged the deceased with a piece of cloth and blindfolded her and then A-2, A-3 and A-4 (appellants Lokenath, Rangadhai and Abdul Haque) bodily removed the deceased to a newly half-constructed room. There she was laid on aside; then my mother (appellant Dukhi Dei) handed over a Bala (identified-marked M. O. 1) to A-2 (appellant Lokanath). This Bala is ours. Then A-2 (Lokanath) gave strokes on the deceased with M. O. 1 while A-3 and A-4 (Rangadhar and Abdul Haque) had caught hold of her hands and legs. A-2 (Lokanath) gave two blows. Then the three accused namely A-2, A-3 and A-4 (Lokanath, Rangadhar and Abdul Haque) dragged down Mandira to the courtyard. On the backyard, the dead body of Mandira was laid and myself and my mother (appellant Dukhi Dei) covered the dead body with basketful of ash, mustered coverings, cow dung etc. ..............'
If this evidence of P. W. 2 -- although she is a child witness -- is accepted, then many of the arguments urged on behalf of the defence lose their weight and significance.
8. The question therefore is whether the evidence of P. W. 2 as an eye-witness is reliable for conviction of the appellants. No doubt the evidence of a child witness is to be taken with great caution. Normally evidence of Child witnesses should not be accepted as it is notoriously dangerous unless immediately available and unless narrated before any possibility of coaching is eliminated; there should be closer scrutiny of the evidence of child witnesses before the same is accepted by a court of law.
9. As regards the credibility of P. W. 2 Kunda Dei, she was found to be a girl of 12 1/2 years old. The trial judge recorded that the witness is 'quite intelligent and as such a competent witness'. The trial Judge had an opportunity to see and hear her and, from answers to questions put to her in court, she was found to have given cogent answers as expressed in the judgment of the trial Judge who observed the demeanour of the witness while giving evidence in court. The witness took oath. The witness appears to be intelligent for her age and she gave her answers frankly and without hesitation. The very fact, -- that she implicated her own mother appellant Dukhi Dei and in a way also herself stating that she helped the appellants in covering up the dead body by throwing ash in the manner it was done while hiding the corpse in the backyard, and further admitting that the Bala (weapon of the murder) belonged to them, -- shows that the witness was speaking frankly and truthfully.
10. On the question of necessity for corroboration of a child witness, their Lordships of the Privy Council in Mohammad Sugal Esa v. The King AIR 1946 PC 3 rejected a defenco argument that assuming the unsworn evidence of a child witness was admissible, the court could not act upon it unless it was corroborated and held that in the Indian Evidence Act, the evidence of a child witness is made admissible whether corroborated or not. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accu- sed but in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not; once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence; it is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. In the present case, the learned trial Judge appears to have been alive to this rule and that he applied it and he rightly took into account the matters corroborative of P. W. 2's evidence.
11. Thus although under the Indian Law corroboration is not necessary, still in fact, the evidence of the child witness P. W. 2 stands generally corroborated by these telling circumstances; The dragging of the dead body of the deceased by the appellants Lokanath, Rangadhar and Abdul Haque to the backyard after murder, as deposed by P. W. 2 in court, is supported by the presence of few abrasions on the dead body as found by the doctor P. W. 6. The handing over the Bala (axe) by the appellant Dukhi Dei to the appellant Lokanath, as deposed by P. W. 2 is also corroborated by the fact of recovery of the Bala from the bush on the bank of the pond within the compound of appellant Dukhi Dei's house (scene of the murder) from where it was seized. The recoveries of the incriminating articles seized by the police, particularly the blood stained blue Sari (M. O. 2). This corroborates P. W. as statement in court that the wearing cloth of the deceased Mandira was thrown away by the appellant Abdul Haque beyond the backyard, and so the deceased Mandira was stark naked before the dead body was covered up with a basketful of ash. This recovery further corroborates P. W. 2's statement that the blue sari M. O. II had been put on by the deceased Mandira at the time of the murder.
12. That apart, there is also independentgeneral corroboration of the P. W. 2's statements by the evidence of other witnesses.
Thus, the evidence of p. w. 2 is supported by two neighbour witnesses P. Ws. 9 and 10 with regard to appellant Abdul Haque's complicity in the murder. P. W. 9 who lives in the same compound of the scene of the murder said that at sun set time she saw the appellant Abdul Haqua going away hurriedly from the house of appellant Dukhi Dei (scene of murder) towards his own house. This evidence of P. W. 9 fits in with the prosecution case that appellant Abdul Haque participated in the crime and that at about dusk left the place of murder after washing as deposed by the eye-witness P. W. 2. Furthermore P. W. 10 another neighbour witness living in the same compound said that sometime before the sun is set, appellant Abdul Haque came from his house through the fields and entered the house of the appellant Dukhi Dei.
The evidence of P. W. 2 is further corroborated by P. Ws. 14 and 19 with regard to the complicity of appellants Lokanath and Rangadhar in the crime. P. W. 14 said that on the date of the incident be found appellants Lokanath and Rangadhar avoiding him near the ditch of Pans Saha P. W. 4 (husband of appellant Dukhi Dei) when the sun was setting. P. W. 19 also corroborated the evidence of P. W. 2 by stating that on the date of the incident at about 5 P. M. he saw P. W. 3 calling and going with appellant Lokanath Patra, On this point, the evidence of P. W. 2 in court was that her younger sister P. W, 3 was deputed by their mother appellant Dukhi Dei to call the appellants Lokanath Patra and Rangadhar Patra. P. W. 3 corroborated the evidence of her sister P. W. 2 on the point by stating that she was deputed to call appellants Lokanath and Rangadhar which she did.
Thus on scrutiny of the evidence of the child witness P, W. 2, comparing the same with the evidence of the other supporting witnesses and the recoveries, I am satisfied that P. W. 2 is a truthful witness and her direct testimony can be safely relied on.
13. The learned defence counsel Mr. H. Kanungo appearing for appellant Abdul Haque, however strongly urged that the evidence of child witness P. W. 2 Kunda Dei should be discarded for the following reasons; The evidence of P. W. 2 suffers from initial infirmity as she is a child witness. It was also contended that P. W. 2 is in the position of an accomplice because admittedly she helped in covering the dead body with a basketful of ash after murder, thereby suggesting that further corroboration is necessary in this case because of the alleged double infirmity of this witness both as a child witness and also as an accomplice.
There is no oral or circumstantial corroboration so far as appellant Abdul Haque is concerned. P. W. 2 comes from a family with whom appellant Abdul Haque is alleged to be on hostile terms by reason of some difference over alleged forcible removal of straw from certain lands by Abdul Haque, as admitted by p. w. 2 herself. The evidence of P. W. 2 is said to be tainted as she was datained by the police for more than 24 hours and thus there was sufficient opportunity for tutoring the witness. In support of this contention the learned defence counsel relied on the evidence of P. W. 2 where she said that she and her mother were detained the day following i. e. on Monday (day and night) and that on Tuesday they were taken to their house, and that she was told by the police that she had no reason to fear if she reported as directed. The defence point is that there was thus sufficient time and opportunity for tutoring the witness.
In this context, the defence further commented that it is significant that p. w. 2 did not divulge anything about the occurrence, not even to her father P. W. 4 or sister P. W. 3 or anybody else until she made a statement to the police on Tuesday 9-1-1962. That apart, the defence also (sic) on certain alleged discrepancies in the statement of P. W. 2 regarding the sequence of events on that date on the question whether the (sic) Mandira. came first in the house of appellant Dukhi Dei or whether the appellant Abdul Haque was called first. That apart, it was also submitted that none of the allegations against the appellants Abdul Haque as to his (sic) the deceased, lifting her along with appellants Loknath and Rangadhar, holding of the legs, and after murder dragging of the dead body to the courtyard have been corroborated. The defence case is that far from any corroboration, P. W. 2 stands contradicted and stands (sic) as an untruthful witness. In this (sic) our attention was drawn to p. w. 2's statemet that appellant Abdul Haque had referred the deceased Mandira's ornaments; while the investigating officer P. W. 24's evidence as that P. W. 2 stated before him that her mother took the ornaments.
14. After the Privy Council decision in AIR 1946 PC 3 cited above, the defence arguments, based on the supposed stigma of initial infirmity attached to P. W. 2 as a child witness, have no value whatsoever. Indeed, all the arguments urged on behalf of the defence have hardly may force in the face of the direct positive evidence of the eye-witness P. W. 2 who stands generally corroborated in all material particulars as discussed above. If in fact P. W. 2 was an untruthful witness then she would not have implicated her own mother appellant Dukhi Dei in the crime. The reason why P. W. 2 did not tell anybody that night about the incident is presumably to protect the mother which is a natural child instant. With regard to the defence comment about the opportunity of P. W. 2 having been (sic) there is no substance in this contention. There could be no occasion for alleged or suggested police influence after the statement of P. W. 2 was recorded on January 9, 1962 (Tuesday). Now, as regards Monday, which was the only day which intervened between the date of murder and the state on which her statement was recorded --the mere fact that she remained in the police station with her mother the appellant Dukhi Dei does not mean that the Police was tutoring her. In fact there is no defence suggestion to the investigating officer in cross-examination that there was no influence on P. W. 2 (sic). Much has been commented on a statement made by P. W. 2 in Cross-examination, namely,--
'I was told by the police that I had no reason to fear if I report as directed.'
The only reasonable interpretation of this sentence is that the witness was directed by the police to tell the truth. The witness does not indicate that the Police was influencing her. This view is further confirmed by the position that the witness stuck to her statement in Court after she got all protection there, and the witness had nothing to fear when she was deposing in Court, The learned trial Judge put specific questions to the witness to find out if she had been in any way influenced by the police, and the learned Trial Judge was satisfied and recorded that the witness gave straightforward answers.
15. As regards the alleged discrepancies in the evidence of P. W. 2, -- regarding sequence of events, as to who was called or came first, whether the deceased Mandira or the appellant Abdul Haque, and regarding removal of ornaments from the dead body, whether by appellant Abdul Haque or by appellant Dukhi Dei, --these are only minor discrepancies of trivial nature. It may all be due to loss of memory. In any event it is not a material discrepancy with regard to any essential fact. The substance of what P. W. 2 stated both before the Police and in Court is consistent and she could., not be shaken in cross-examination on any of the material points. The evidence of P. W. 2 represents the substantial truth and the incident is true. The Court cannot reject such an eye-witness, -- who spoke with slight and inconsequential variations, -- on unsubstantial grounds and on the basis of insignificant discrepancies. The alleged discrepancies and contradictions in the evidence of this eye-witness are not such as to detract from truthfulness. The evidence of P. W. 2 is natural and consistent and the alleged discrepancies are so trivial as not to affect in any way her veracity.
16. As regards the alleged enmity between the family of P. W. 2 and the appellant Abdul Haque by reason of which it is said that P. W. 2 had falsely implicated appellant Abdul Haque in the crime, -- the point is without any substance. There is no proof of such alleged enmity. The forcible removal of straw by the appellant Abdul Haque is not a convincing reason for the alleged grudge.
17. The defence also strongly commented on the evidence of the neighbour witnesses P. Ws. 9 and 10 that these witnesses as living in the same compound as the family of P. W. 2, and that the said witnesses' (P. Ws. 9 and 10) timing of the accused appellant Abdul Haque coming into and going out of the scene of occurrence does not fit in with the prosecution case. Mere living in the I same compound is no proof of interestedness. As regards the said witnesses' sense of time, it is to be noticed that these witnesses are Bhuian class hardly having any sense of correct time. They gave only an approximate time according to their own estimate and not by watch. The whole question is whether the appellant Abdul Haque had gone into and come out of the house of the appellant Dukhi Dei near about the time of murder. These witnesses are quite clear on this point. The evidence of these witnesses, in substance, is that the appellant Abdul Haque was found entering and coming out of the house (scese of murder) hurriedly near about sun-set time. Appellant Abdul Haque's presence in the house of appellant Dukhi Dei at the material time is thus corroborated by P. Ws. 9 and 10. The appellant Abdul Haque failed to explain the circumstances appearing against him.
18. Mr. V. Passayat learned counsel appearing for the appellant Dukhi Dei submitted that circumstantial evidence is consistent with her innocence, namely, that she was either a tool or a by-stander over-powered by the presence of Abdul Haque who is a butcher. The appellant Dukhi Dei's point is that whatever is alleged to have happened had happened as a sudden untoward turn of events from money-deal to murder, and she was a mere spectator; that she had no motive for helping in the commission of the crime of murder by the other three appellants. It was further submitted that her conduct is consistent with innocence because the same morning she had gone to the house of the deceased and presented to her sag (vegetables) and sent her daughter with Gara (pitcher) and thus she claims to have been intimate with the deceased even on the date of the murder.
The explanation why the appellant Dukhi Dei called for the other appellants to her house was to see the deceased Mandira, who was her creditor, paid her dues and to settle the monetary transaction which was somewhat of involved nature. According to appellant Dukhi Dei there are reasons for appellant Abdul Haque to have some grievance because under the proposed arrangement he was to be dispossessed of some land which was under mortgage in favour of his brother with whom he was living jointly. In my opinion all these appear to be more extraneous considerations which have no weight in the present context. The staggering circumstance against the appellant Dukhi Dei is the fact of her having handed over the Bala (axe) to appellant Lokanath who struck the blows resulting in the death of the deceased Mandira.
There is no substance in attempted explanation that the Bala (axe) was handed over to appellant Lokanath not for the purpose of killing. It is further in evidence that it was appellant Dukhi Dei -- who had called the appellants Lokanath and Rangadhar instead of their father Udi Patra who was directly concerned in the monetary transaction. The other incriminating circumstance against appellant Dukhi Dei is that she helped in covering up the dead body with a basketful of ash after murder. It is also in evidence that she made no protest to all that was going on in her house in her very presence and her own daughter P. W. 2 while giving evidence as an eye-witness implicated her mother appellant Dukhi Dei in the crime. P. W. 3 clearly deposed as to what part the mother had taken in the entire incident. Thus in the face of the evidence of the eye-witness P. W. 2, none of the other points raised in defence on behalf of the appellant Dukhi Dei are of any avail.
19. In course of hearing of this appeal Mr. V. Passayet learned counsel appearing for the appellant Dukhi Dei submitted that her defence before the trial Judge was prejudiced by reason of the State Government having appointed one common counsel for the three accused persons Dukhi Dei, Lokanath Patra and Rangadhar Patra, although the interest of Dukhi Dei was conflicting with the interest of the other accused person who actually committed the murder. The defence point is that the accused Dukhi Dei's fundamental right of being defended by a legal practitioner of her choice as provided under Article 22 of the Constitution has thus been infringed. Section 342 of the Criminal Procedure Code also provides that any person accused of an offence before a Criminal Court, may of right be defended by a pleader. In support of this contention, the learned defence counsel submitted that presumably by reason of the conflict of interest, some important prosecution witnesses including the only eye-witness P. W. 2 had not been cross-examined on behalf of the accused Dukhi Dei.
20. These contentions have, however, no force in view of the position that no complaint was ever made by the accused Dakhi Dei before the trial Judge about the alleged prejudice in her defence by reason of engagement of a common pleader nor do the records show that the learned trial Judge felt that the defence was in any way embarrassed by reason of engagement of a common pleader for the three accused persons. Government ment circulars, relating to defence at Government expense of persons without pecuniary means wfeem charged with murder, -- show that the Sessions Judge shall engage a pleader who is competent to do justice to the case, and rules provide that facilities shall be arranged to enable the pleader engaged to receive instructions from the accused and to take other necessary steps; and scrupulous observance of those rules as enjoined by Government circulars in order to prevent the possibility of any disability to the defence.
It is also the settled law, -- as laid down by their Lordships of the Supreme Court. -- that the right conferred by Section 340 (1) Code of Cr. Procedure does not extend to a right in an accused person to be provided with a lawyer by the State or by the Police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity. The provision of Section 340 must fee constured liberally in favour of the accused and must be read along with the rules made by the High Courts and the circular orders issued by them enjoining that where in capital cases the accused has no means to defend himself, a Counsel should be provided to defend him. Their Lordships further expressed the view that it cannot be laid down as a rule of law that in every capital case where the accused is unrepresented, the trial should be held to be vitiated, and that a Court of appeal or revision is not powerless to interfere, if it is found that the accused was so handicapped for want of legal aid that the proceedings against him may feel said to amount to negation of a fair trial. Tara Singh v. The State, AIR 1951 SC 441; Janardhan Eeddy v. State of Hyderabad, AIR 1951 SC 217.
21. In the present case, there is nothing to show that the accused Dukhi Dei was in any way handicapped for want of legal aid. It was open to her to give instruction to the pleader engaged by the State and submit to the trial Judge that the same pleader cannot fairly represent the alleged conflicting interests of the three accused persons -- Dukhi Dei, Lokanah and Rangadhar. The accused Dukhi Dei could have prayed for separate representation. But she did not choose to do so. Now, at the appellate stage, she cannot raise these vague points of alleged prejudice. In fact, there has been no prejudice in her defence. It is not that none of the prosecution witnesses were cross-examined on her behalf. In fact P. Ws. 3, 4, 11, 14, 15, 16 and 19 were cross-examined on her behalf separately. If the accused Dukhi Dei had any grievance at all about the engagement of the common pleader by the State, it was open to her to take this objection before the trial Judge. There is no question of alleged prejudice as contended by Mr. V. Passayet. There is no substance in this point.
22. As regards appellants Lokanath and Rangadhar, -- who are the two sons of Udi Patra directly interested in the said monetary transaction, -- the eye-witness P. W. 2 said that appellant Lokanath gave the fatal blows on the deceased with the Bala (axe) which resulted in the death of the deceased. Appellant Rangadhar along with appellant Abdul Haque caught hold of the hands and legs of the deceased after she was laid down on the grounds, and thus helped and participated in murdering her. Apart from the eye-witness P. W. 2 the other corroborating witnesses for the prosecution are P. Ws. 3, 14 and 19. P. W. 14 said that on the date of the incident at about the time when the sun was setting, he found the two appellants Lokanath and Rangadhar avoiding him near the ditch which was in the vicinity of the place of murder. This evidence fits in with the prosecution case that appellants Lokanath and Rangadhar participated in the crime and that about dusk left the place of murder after washing themselves, as deposed by the eye-witness P. W. 2.
P. W. 19 corroborated the eye-witness P. W. 2 by stating that he saw P. W. 3 calling and going with appellant Lokanath on the date of incident at about 5 p. m. P. W. 3 corroborated P. W. 2 that she P. W. 3 had been sent by her mother appellant Dukhi Dei to call the appellants Lokanath and Rangadhar. Thus the evidence of the eyewitness P. W. 2, -- that the appellants Lokanatkhand Rangadhar committed and participated in the murder of the deceased, -- stands sufficiently corroborated in all material particulars.
23. Now generally as to motive of the murder, it appears that the deceased Mandira was a creditor of appellant Dukhi Dei, who had borrowed some money to help Udi Patra, the father of appellants Lokanath and Rangadhar. Appellant Dukhi Dei was also a debtor on mortgage of some lands to the brother of appellant Abdul Haque who is said to be living in joint mess with his said brother. When the deceased Mandira was pressing appellant Dukhi Dei for repayment of her loan, this meeting on the date of the incident is said to be arranged purporting to be for settlement of the involved monetary transaction between the parties. In this context the relevant documents had been tendered in evidence.
The documents, chronologically put, are these; -- Ext. 5 is the mortgage bond dated February 10, 1960. executed by Dukhi Dei in favour of Golam Rosul, said to be brother of appellant Abdul Haque. Ext. 4 is the deed of agreement dated April 14, 1961, executed by appellant Dukhi Dei in favour of Gopinath Giri, husband of the deceased. Ext. 6 is a deed of gift dated December 27, 1961. executed by Udayanath Patra in favour of appellant Dukhi Dei. The transaction is of somewhat involved nature and it is difficult to make out of this, any clear rational motive of murder. This, however, is clear that the deceased Mandira was pressing for money and the appellant all combined against her out of some sense of grievance which they came to bear in course of these transactions. The learned trial Judge, after stating the facts on the question of motive, found that appellant Abdul Haque had got himself involved in the monetary transaction affecting the land in his possession and further that, -- whether motive or no motive, -- if the fact is otherwise established, proof of a particular motive is unnecessary. On this point the Supreme Court held that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. Gurcharan Singh v. State of Punjab, (S) AIR 1956 SC 460.
24. Lastly, with regard to sentence, appellant Rangadhar Patra being a student of young age was rightly sentenced to transportation for life. The remaining accused appellants were sentenced to death.
There is no extenuating circumstance so far as appellants Abdul Haque and Lokanath Patra are concerned. The order of conviction and the sentence of death passed on them by the learned trial Judge is justified.
With regard to appellant Dukhi Dei it was submitted that she having not participated in the actual killing of the deceased but having been a mere spectator to the incident, as a victim of circumstances, the sentence of death was not justified. This argument however is not tenable in the face of the position that the charges against the appellants are under Section 302 read with Section 34 Indian Penal Code. On this point their Lordships of the Supreme Court in Rishideo Pande v. State of Uttar Pradesh, (S) AIR 1955 SC 331 held that even where it is true that the appellant convicted under Section 302 read with Section 34 did not inflict any blow on the deceased, yet if it is found that he shared the common intention to kill her and actually participated in the criminal act by I being present on the spot armed with his lathi, then in the eye of law, he is as much guilty of the whole criminal act as is his co-accused who actually dealt the fatal blow on the victim, and in the said case their Lordships maintained the sentence of death.
In the present case also, there was a charge under Section 34 and appellant Dukhi Dei was found guilty of murder. In fact, it was found that she had handed over the Bala (axe) to appellant Lokanath Patra who struck the fatal blow which caused the death of the deceased. In course of hearing of this appeal, our attention was drawn to the fact that appellant Dukhi Dei has a child 1 1/2 years old and therefore on that ground she should be spared the capital sentence of death. A Division Bench of the Madras High Court in In re, Thithachumma (1940) Mad WN 961 : (AIR 1941 Mad 27) held that the existence of an extremely young baby born to the accused since the murder is not a ground for passing the lesser sentence, transportation for life when there are no extenuating circumstances and confirmed the conviction for murder and the sentence of death passed by the trial Judge. We, therefore find no extenuating circumstance in favour of the accused appellant Dukhi Dei for passing lesser sentence.
25. I agree with the learned trial Judge that the offence was clearly established against all and each of the appellants. I would, therefore, confirm the order of conviction and sentence of transportation for life passed on appellant Rangadhar Patra. As regards the other appellants, I would accept the reference, confirm the sentence of death passed on each of the appellants Abdul Haque, Lokanath Patra, and Dukhi Dei and dismiss the appeals of all the appellants.
26. I agree.
As the death sentence has been imposed on three persons I would express my view on two points as to if P. W. 2's evidence is acceptable and if accused 4's complicity has been established.
27. The only witness who has seen the murder and implicates all the appellants is P. W. 2. Her age is 12 1/2 years and she is daughter of accused 1. Mr. Kanungo for accused 4, who advanced the leading argument, strenuously contended that the evidence of P. W. 2 should be discarded. He advanced the following criticisms on the evidence of P. W. 2:
(i) P. W. 2 is a child witness and as such her evidence should not be accepted unless satisfactorily corroborated, and that she did not understand the questions put to her and failed to give rational answers thereto:
(ii) Her family is on hostile terms with accused No. 4:
(iii) She was detained by the Police in the Thana for a period of about 24 hours and therefore the possibility of coaching by the police is not eliminated;
(iv) She was examined by the Police on 9-1-1962. Before that she did not disclose the facts to anybody and so her evidence was not immediately available:
(v) There are two major discrepancies in her statement -- firstly, regarding the sequence of the assemblage of different accused persons in the house of accused 1 which was the place of murder, and secondly, regarding the removal of ornaments from the body of the deceased; and lastly:
(vi) She assisted her mother in putting ashes, cowdung and human excretion on the body of the deceased in screening the offence and so she stands in the role of accomplice.
28. The essence of the aforesaid criticisms is that on her intrinsic evidence P. W. 2 is a condemned liar; on account of the family dispute she had a motive to falsely implicate accused 4; as she is an accomplice her evidence requires corrobora-tion in material particulars, and as a child witness, her evidence also requires corroboration. Taken as a whole, therefore, the evidence of P. W. 2 should not be accepted unless it is fully corroborated in material particulars. I have heard Mr. Kanungo at great length and am unable to accept his contentions. I will deal with each of the arguments in detail.
29. P. W. 2 is a child witness and is 12 1/2 years old. It is a matter of common knowledge that most of the girls in Orissa attain puberty in between 12th and 13th years. Ordinarily at that age, girls have full power of understanding and give rational answers. In this particular case, the learned Sessions Judge has recorded that the girl gave quite straightforward answers. He put a large number of questions to test her power of understanding and was satisfied that her competency as a witness is beyond question. Mr. Kanungo brought to our notice 2 or 3 questions and answers here and there contending that P. W. 2 did not understand the nature of the questions. I am not impressed with his argument. That apart, the evidence of the witness, read as a whole, absolutely leaves no doubt in the mind that she is a competent witness and was in a position to fully understand the questions and give rational answers.
The law on the question as to how far theevidence of a child witness requires corroborationwas succinctly and lucidly laid down in AIR 1946PC 3. Their Lordships observed:
'In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But in Indian Act there is no such provision and the evidence is made admissible wEether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.'
This decision was approved in Rameswar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54. Their Lordships laid down:
'......... the rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the Judge. In a Jury case he must tell the jury of it and in a non-jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the Jury, or, when there is no jury, he himself is satisfied that it is safe to do so. The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corrobration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.'
The Supreme Court decision lays down the law in absolute terms and it is unnecessary to discuss various other authorities cited. The aforesaid decisions were referred to and followed in Ghasiram Behera v. State, ILR 1962 Cut 505. I will examine at a later stage whether and how far the statement of P. W. 2 has been corroborated in this particular case.
30. Mr. Kanungo relies on the statement of P. W. 2 to the effect:-
'To the west of our residential house, there are cultivable lands, which are under the possession of A-4. We had stacked straw from those lands which A-4 forcibly removed. We had done with the help of Radhu and his wife. We contend that we will cultivate half of those lands and the rest by A-4 to which A-4 does not agree. A-4 contends that he will give up the lands if his money will be returned.'
and argues that there is clear enmity in between the family of the accused-4 and that of P. W. 2 and so there is every possibility of her falsely implicating accused-4.
There is absolutely no force in his contention. Admittedly Golam Rasul, the brother of Accused No. 4, lives jointly with him and he had taken mortgage of lands from accused-1. In respect of a part of the lands it appears from the evidence of P. W. 2 that accused No. 1 wanted accused No. 4 to part with and there was some dispute over removal of straw from such land. This dispute is not of such a magnitude and character that P. W. 2 would implicate accused-4 in a ghastly and gruesome murder. There is no reason why she should implicate accused-4 and not Golam Rasul.
31. It was argued by Mr. Kanungo that P. W. 2 was detained in the police custody for a period of about 24 hours and therefore the possibility of coaching cannot be eliminated. He relies on the following statement of P. W. 2;
'The occurrence was on a Sunday when the weekly market sits at Keonjhar garh. The day following i.e. on Monday the Police brought myself and my mother to Police Station. 'We were detained that day and night and on Tuesday, we were taken to our house. And after some investigation, we were again brought back to the P. S. That night i.e. Tuesday night, we were detained at the P.S. Thus we remained at the P. S. for Wednesday, Thursday and Friday. So I got fear. I was told by the police that I had no reason to fear if I report as directed.'
P. W. 2 was examined by the Police on 9-1-1962. No question has been put to the I. O. (P. W. 24) that P. W. 2 was detained in the Thana. Mr. Kanungo contends that once P. W. 2 had already deposed in court that she was detained for about 24 hours in the P. S. it was the duty of the prosecution to ask the I. O. in examination-in-chief as to whether the statement of P. W. 2 regarding her detention was correct. This argument is not altogether without force. But it appears from the evidence of P. W. 2 that both she and her mother were together detained at the P. S. and questions had been put to the I. O. regarding the detention of accused-1. The I. O. replied that though accused-1 gave her statement on 8-1-1962 and on the basis of her statement accused 2, 3 and 4 were arrested, still he thought it proper not to arrest accused-1 till 12th as he got information that she had concealed the gold ornaments of which no recovery was given till 12th, and. after she gave recovery from the place where it was concealed, accused-1 was arrested; and during that period of 4 days accused-1 was kept in close vigilance.
It, therefore, appears legitimate to infer that as the murder had taken place in the house of ac-cused-1 and P. W. 2 was a girl of tender years and as the mother had to be kept in close vigilance for the purpose of obtaining information about the crime, the daughter was accompanying the mother to the Thana and considered herself to be detained during the period prior to her giving evidence. Despite the fact that accused-1 was in the Thana for 4 days under close vigilance, she never implicated herself as having taken part in the murder in any way. If this close vigilance which has been characterised as one of detention, could not produce any effect on the mother, it is difficult to conceive that the daughter would implicate the mother herself in the act of murder by ascribing to her the essential part of supplying their own Bala with which the deceased was killed, if either there was any opportunity for coaching or in fact there was coaching. This conclusion is fortified by the very answers given by P. W. 2 before the learned Sessions Judge to certain questions put by the court to test whether there was any manner of influence by the police.
The learned Sessions Judge clearly asked a question to the witness as to whether what she stated in court was at the instance of the police or as to what she had actually seen. Her categorical answer was that she was stating the truth and not at the tutoring of the police. From the start to finish she sticks on to two important statements which implicate her mother and herself. She implicates the mother by saying that the mother supplied the Bala and that after the dead body was removed it was covered with ashes, cowdung and human excretion by herself and her mother. These two statements which directly implicate the mother and partly herself too in screening the offence insure against the falsity of her statements. She was deposing in court in the presence of her mother both before the committing court and the Sessions Judge. If the statements were at the instance of the police, the presence of her mother at the time of deposition would have inspired her with a feeling of love and terrified her with a sense of fear and she would have retracted the statement which she had previously made implicating her mother.
I am fully satisfied from the facts and circumstances of the case that she gave evidence as to what she saw without being in any way influenced and that the possibility of her being coached is fully eliminated. Relying on her statement that 'I am told by the police that I had no reason to fear if I report as directed'. Mr. Kanungo argues that the police directed her to state falsehood. I am unable to subscribe to such a view. It is not unlikely, as is usually said, that police might have told her to state the truth in which case she had nothing to fear. The cross-examiner should have pursued the matter further and should not have left the answer in ambiguity. The subsequent answer given by P. W. 2 that she was speaking the truth and not at the instance of the police demolishes any such contention.
32. It was argued that there was opportunity for divulging the incident by P. W. 2 to her father P. W. 4, sister P. W. 3 and the husband of the deceased P. W. 5 before she gave statement on 9-1-1962. It is true that P. W. 5 came for enquiry in the very night of the date of occurrence (7-1-1962) and P. W. 2 could have replied that his wife had been killed. To expect such answer would be unnatural in the peculiar circumstances of this case. The ghastly murder was committed in her presence and her mother was a party to it. Her statement in court is that she was threatened not to disclose the offence to anybody by all the accused persons including her mother. It was therefore not unlikely that she did not disclose the incident until police came on the scene. In Gurubaru Praja v. The King, ILR (1949) I Cut 207 : (AIR 1950 Orissa 67) Ray, C. J. observed that in consideration of the habits of the people of this country, particularly of the undeveloped districts from which the case comes, there is nothing unusual in the conduct of not disclosing the occurrence until the police arrives. With great respect I endorse this view. P. W. 2 could not be expected to divulge the matter to P. W. 5 and much less to her sister and father against her mother herself. No adverse inference therefore can be drawn.
33. Two major discrepancies have been brought to our notice in support of the contention that P. W. 2 is a liar and deliberately wants to implicate accused-4 and her evidence should not be accepted. In court she stated that after she finished her meals, her mother asked her to go and call accused-4. Thereafter she was deputed by her mother to return the Gara to the deceased. Her mother then deputed her younger sister Asha (P. W. 3) to call accused 2 and 3 and her mother herself went to call Mandira (the deceased). She had stated before the I. O. P. W. 24 that after the arrival of Mandira she was deputed to call accused-4. The change in the sequence is whether Mandira came first or accused-4 was called first. This discrepancy does not affect the essence of the story. She was deposing in court about 5 months after her statement before the police. It is not unusual for a child of her age to forget the sequence of incident that before the dead body was covered up with ashes, cowdung etc. accused-4 had removed Mandira's ornaments, such as a pair of silver bangles, and a gold necklace, which he had tied up in a rag and put in a small pond. She stated before the I. O. (P. W. 24) that her mother took away the ornaments and not accused 4.
Mr. Kanungo strenuously contends that this is a purposeful lie introduced by P. W. 2 to save the mother and to enhance the gravity of the offence against accused-4. This contention might have had some force if in court P. W. 2 would have endeavoured to completely absolve her mother and put all the blame on other accused persons including accused-4. She gives a consistent story all through implicating her mother regarding supply of Bala with which the murder was committed and covering the dead body for concealing the evidence. If these statements against the mother as deposed to by P. W. 2 are accepted, the evidence would be sufficient to implicate the mother in the offence of murder and attempt to screen evidence to conceal the murder.
Her consistent version that acused-4 gagged the deceased, took part in holding her hands and legs while accused-2 gave the murderous assault, took part in dragging the dead body and threw it where it was lying with the other accused, clearly makes out a case of murder against accused-4, and the gravity of the offence cannot be in any way enhanced by further falsely implicating accused-4 with the removal of the ornaments. Closely analysed the discrepancy in the s'tatement of P. W. 2 regarding the removal of ornaments does not enhance the gravity of the offence against accused-4. nor does it reduce the magnitude of the offence against her mother (accused-1). This discrepancy must therefore be ascribed to loss of memory due to lapse of time and not due to deliberate falsehood.
34. The contention that P. W. 2 took part in covering the dead body with ashes, cowdung and human excretion, she is to be treated as an accomplice, has no substance. The murder was committed in her own house and her mother was an active participant not only in the commission of the murder but also in the concealment of the dead body. It was therefore not at all unnatural that she would put ashes, cowdung etc. on the dead body at the direction of her mother to assist her. No animus can be ascribed to her on this ground. On the contrary, though there is no other evidence to implicate her with this part, the fact that she comes forward to disclose her part which might form the basis of an argument that she was an accomplice shows that she is a straightforward and truthful witness. Her evidence inspires confidence in my mind.
35. I have fully discussed all the arguments of Mr. Kanungo commenting upon the evidence of P. W. 2. She being a child witness, as a rate of prudence, some corroboration of her evidence is necessary. There is corroboration of her statement in material particulars on the factum and manner of commission of the crime. She stated that the dead body was dragged after the murder. Injuries 3 and 4 support her testimony. Injury No. 3 is an abrasion on the anterior aspect of the chest 5' x 1/2' running from above downward. Injury No. 4 is an abrasion 2 1/2' x 1' below the mamary region left side. According to her, a Bala was used in the commission of the crime. The Bala recovered, according to the medical evidence, is a weapon with which injuries 1 and 2 could be caused. Her statement was that the dead body was covered with ashes, cowdung and human excretion. At the time of recovery, the dead body was found to be in the aforesaid condition. Her statement that the dead body had been made naked is also corroborated by the fact that the dead body was found naked and the cloth which she was wearing was recovered from near about the stream with blood stains.
These are some of the important features giving corroboraton to her statement. It was contended that all these were noticed by P. W. 2 prior to her giving statement before the police on the 9th and as she had opportunities of seeing and knowing these recoveries and other facts are not admissible to corroborate her statement. There is no force in this contention. In Hem Raj v. State of Ajmer, AIR 1954 SC 462 a similar contention was advanced with regard to the confession of an accused. It was repelled by their Lordships with the observation :
'The contention that a confession can only toe corroborated by evidence discovered by the police after a confession has been made and any material that is already in their possession, cannot be put in evidence in support of it, is not valid. A confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the court of the committing magistrate and materials already in possession of the police may well be used for purposes of corroboration.'
The principle is the same and applies with equal force to corroboration of the evidence of a witness.
36. As the nature and extent of corroboration required when it is not considered safe to dispense with it, law is well settled. It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to maintain conviction. The independent evidence must not only corroborate that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular that the accused committed the crime. The corroboration must also come from independent sources and lastly the corroboration need not be by direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.
37. The nature of corroboration of the evidence of a witness from that of an accomplice is 1 different. In Lachman Singh v. The State, AIR 1952 SC 167 their Lordships observed as follows;
'In the circumstances of a particular case it would be proper for an appellate Court not to rely upon the oral evidence of eye-witnesses implicating particular accused unless there is some circumstantial evidence to support it. By adopting this standard the appellate court does not condemn the oral evidence outright, but as a matter of prudence and caution it decides not to convict an accused person unless there were some circumstances to lend support to the evidence of the eye-witnesses with regard to him. The corroboration required is not that kind of corroboration which one requires in the case of an approver or an accomplice, but corroboration by some circumstances lend assurance to the evidence before the court and satisfy it that particular accused persons were really connected in the offence.'
This decision was followed in Karnail Singh v. State of Punjab, AIR 1954 SC 204. The standard of corroboration in the case of a witness is not as strict as it is in the case of an accomplice or an approver. The difference is not material in this particular case as there is corroboration of the statement of P. W. 2 in material particulars by facts and circumstances regarding the factum and manner of the commission of the crime.
38. With regard to the complicity of accused No. 4 in the crime itself, the evidence of P. Ws. 9 and 10 fully corroborates the evidence of P. W. 2. Sambari Dei (P. W. 10) is a lady. Her statement is that on a Sunday while she was standing in front of her house and it was yet sometime for the sun to set, accused-4 came from his house through field and entered the house of accused-1. If her evidence is accepted it is clear that accused-4 went to the house of accused-i in the afternoon on the date of occurrence which was a Sunday, She was examined by police on the 9th and she made the same statement before the police. To the question why she did not make the statement earlier, she replied that she is Bhuyan by caste and she got afraid. Bhuyans are aboriginals an'd the answer is plausible. It was urged that the time she gives does not fit in with the time of murder according to the prosecution story. It is in evidence that the deceased had taken her meals at about 1 o'clock. On examination of the food in her stomach, the evidence of the doctor is that the deceased must have taken her meals about 2 to 3 hours before the murder. So the time of murder would be near about 4 o'clock.
On 7-1-1962 the time for the sunset would be about 5.50 P.M. So her evidence that it was yet sometime for the sun to set does not militate against the prosecution story regarding the time of murder. Moreover the witness being a Bhuyan by caste and almost all the witnesses examined in the case being illiterate and belonging to abo-rigin class, evidence regarding time should not be overemphasised. The learned Sessions Judge has mentioned in the deposition of some witnesses that they have no idea of time. Absolutely nothing has been suggested to P. W. 10 as to why her evidence should not be accepted. P. W. 9, another lady, states that her house is at a distance of 30 vards from the house of accused-1. She saw on a Sunday while she was easing at the sunset tune that accused-4 was going away hurriedly from the house of accused-i towards hjs own house. Nothing substantial has been elicited from her in cross-examination to discard her statement. On the contrary, to a suggestion in the cross-examination that she had not marked accused-4 going away she categorically asserted that she saw accused-4. Her evidence proves beyond reasonable doubt that near about sunset time accused-4 was hurriedly leaving the house of accused-1.
The evidence of P. Ws. 10 and 9 establishes beyond reasonable doubt that accused-4 came to the house of accused-1 at about the time of murder and left the house hurriedly by the time of sunset. No doubt P. Ws. 9 and 10 have not seen the actual murder but their evidence satisfactorily corroborates the evidence of P. W. 2 that accused 4 was present in the house of accused-1, which was the place of murder, at about the time of the commission of the murder. Accused-4 was given an opportunity in his examination Under Section 342 Cr. P. C. to explain his presence at the time of the murder. He took the plea of alibi and stated that he never came to the house of accused-1. The falsity of the plea of alibi is established by the evidence of P. Ws. 9 and 10 who are independent, disinterested and reliable. Aceused-4 has examined D. W. I to establish his plea of alibi which has been rightly rejected by the learned Sessions Judge. There can therefore be no doubt that the prosecution has been able to prove beyond reasonable doubt the complicity of accused-4 in the murder.
39. As regards complicity of accused 1, 2 and 3, my learned brother has fully discussed the matter and I need not repeat them. The question of sentence received our anxious consideration. No extenuating circumstance could even be urged in favour of accused 2 and 4. The only extenuating circumstance brought to our notice in favour of accused-1 was that she had a suckling child of 1 1/2 years old. A child of 1 1/2 years can live without suckling. Moreover it is well settled that existence of a suckling child is not by itself an extenuating circumstance. The murder is well-calculated, cold blooded and ghastly. Sentence of death is the only penalty that can be conceived of in the circumstances. For reasons given in my judgment and those discussed in my learned brother's judgment with which I agree, the appeals fail and the Death Reference is accepted.