1. This is an appeal from the judgment of the Sessions Judge of Mayurbhanj-Keonjhar convicting the petitioners under Section 302/34 of the Indian Penal Code for the murder of one Dukh Haran Harijan on the 17th December, 1961 at about 10 P.M. and sentencing them to R. I. for lite. The learned Sessions Judge further convicted them under Section 201/34, I. P. C. but did not pass a separate sentence for that offence.
2. The crime is said to have been committed in a jungle near Kiriburn in the district of Keonjhar where due to extensive mining projects recently started by the National Mineral Development Corporation there is a large colony of up-country labourers including several people from Gorakhpur and other districts of Uttar Pradesh. One of these labourers was the deceased Dukh Haran Harijan, who came there from his village in Gorakhpur district accompanied by his wife Munari (P. W. 19) and was employed under Dr. Asthana (P. W. 6), the senior Geologist in the said Corporation. One of his relatives is Ram Murat (P. W. 13) who was also working there as a Chowkidar in that project. The two appellants Ram Jatan Jadab and Paramhansa Jadab also belonged to Gorakhpur district and they were working at Kiriburn as Choukidars. Appellant Ram Jatan Jadab was the Choukidar in the prospecting camp and appellant Parmahans Jadab was working as Choukidar at another camp on a hill-top some miles away. It was alleged that these two appellants seduced Munari (P. W. 19) and for some days she actually lived with appellant Paramhans on the hill-top. Her husband Dukh Haran made a complaint before Dr. Asthana P. W. 6 against this conduct of the appellants and as this became a scandal, Dr. Asthana discharged appellant Ram Jatan Jadab from service. He could not punish appellant Paramhans as he was working under the Senior Administrative Officer, Mr. Kachru. Hence on the suggestion of Dr. Asthana a petition (Ext. 6) was prepared and signed by Dukh Haran complaining against the conduct of appellant Paramhans in carrying on illicit intrigue with Dukh Haran's wife. The petition was however not sent to the Senior Administrative Officer on account of the happening of the subsequent events which eventually ended in the murder of Dukh Haran.
3. According to the prosecution the circumstances leading to the murder of Dukh Haran are as follows :
The two appellants decided to get rid of the inconvenient husband. But with a view to allay his suspicion they pretended to agree to his taking back his wile and returning to his home in Gorakhpur Dist. Accordingly Dukh Haran gave up his job on 14-12-61 and received his wages for the week ending 14-12-61 on the 16th or 17th Dec. 1961. Then on the 17th December 1961 the two appellants Dukh Haran and his wife Munari P. W. 19 proceeded from Kiriburn to the nearest Railway Station at Bada Jamda. But the appellants were anxious to divert suspicion from themselves and hence they all went to the Mechanical draftsman of the project (P. W. 9) where, at the suggestion of the appellant Paramhans, a Sulenama (compromise petition) was written to the effect that the dispute between the appellants and Dukh Haran was settled; that Dukh Haran's wife was returned to him (Dukh Haran) with her ornaments and the couple was returning to their native place. P. W. 9 accordingly scribed the document and handed it over to the appellant Paramhans. Then at about 7 P.M. Dukh Haran was said to have handed over some silver ornaments of his-wife to Paramhans who pledged them with a hotel-keeper, P. W. 10 for Rs. 25/- and received an advance of Rs. 15/- from him. The balance of Rs. 10/- was paid several days later by P. Ws. to Paramhans. Dukh Haran was also present then and the hotel-keeper (P. W. 10) was informed that the money was required to pay the expenses of Dukh Haran to go to his native place and a document was also executed by Dukh Haran in favour of the hotel keeper (Ext. 7). Thereafter the party proceeded towards Bada Jamda. On the way they were also seen by two Chowkidars Ramjit (P. W. 14) and Bhagaban Das (P. W. 15) at about 10 P.M. proceeding on a foot-path towards the base camp of the project. That was the last occasion when Dukh Haran was seen alive.
4. As to what happened subsequently we have the direct testimony of Dukh Haran's wife Munari P. W. 19. According to her the appellants deliberately chose a path through a jungle saying that that was a short cut to reach Bada Jamda railway station. After proceeding some distance appellant Paramhans suddenly attacked Dukh Haran, felled him and also sat over his chest. Then appellant Ram Jatan took out a knife from the pocket of Parmahans and inflicted several injuries on the neck of the victim. Then both the appellants severed the head and right hand of Dukh Haran and concealed them in a bush nearby. His right hand was cut because the name of Dukh Haran was tatooed on that hand. Munari stated that it was appellant Ram Jatan who severed the head and right hand and concealed them in a bush. Then they took away the cash from his pocket of Dukh Haran and leaving the mutilated trunk there returned to the quarters of appellant Paramhans that night. Munari was threatened with murder if she would disclose the crime to anybody. Then they later on went to the base camp where two seats were arranged in a truck by Paramhans for Ram Jatan and Munari to take them to Bada
Jamda railway station. Paramhans however stayed behind at Kiriburn. Ram Jatan took Munari to his house in Gorakhpur district and kept her for sometime. But when his relations objected to keeping her as she is a Chamar by caste he took her to Gorakhpur Railway Station and left her there. From there she went to her native village by train. For sometime thereafter she did not disclose the crime to anybody due to fear of Ram Jatan.
5. In the meantime on 25-12-61 the corpse without the head and right hand was noticed by some of the labourers who reported the matter to the Section Officer, Birendra Sharma (P. W. 5) who saw the corpse and then sent a report (Ext. 2) to the Deputy Administrative Officer (P. W. 2) who immediately forwarded it to the Officer-in-charge, Barbil police station (P. W. 20). His A. S. I. (P. W. 17) registered it as an U. D. case, went to the spot and held an inquest over the trunk. The severed right hand was found lying at a distance of about 30 cubits from the trunk. The head, however was not traced. Some clothes (M. Os. I to IV) were on the dead body. The body was then sent for post-mortem examination to Dr. Hazra (P. W. 1). As the body was in an advanced stage of decomposition the Medical Officer could not say how the head was severed from the body and he could not give any definite opinion about the cause of death. Similarly, he could not give any opinion about the cause of severance of the right hand from the body as the muscles were in a state of decomposition and the skin margin were in black and pulpy condition. But as the fleshy portions were still attached to the body the Medical officer further stated that the possibility of a tiger attack was remote. This opinion is material because some of the witnesses have stated before the Police that they noticed the marks of paws of wild animals near the place where the corpse was found.
6. The case was investigated by the S. I. P. W. 20 and the Circle Inspector (P. W. 22). They both visited the spot and found it to be a rocky bed near a stream. There were cut marks on the rocky bed and small particles of bones were also found near those cut marks. These pieces of bones were sent to the Chemical examiner whose report shows that they were stained with human blood. The police then took vigorous steps to arrest Paramhans at Kiriburn, Munari in her village in Gorakhpur district and also to trace out appellant Ram Jatan. Munari's statement was recorded by the police on 4-3-1962 in her home village and she was also produced before a Magistrate at Gorakhpur where her statement was recorded under Section 164 of the Criminal Procedure Code on 5-3-62. Appellant Paramhans was also interrogated and produced before Dr. Asthana (P. W. 6) in the afternoon of 18-2-62. He made an extra judicial confession before this Officer completely confessing his guilt and implicating appellant Ram Jatan also. He was then arrested by the police on the next day 19-8-62 and produced before the Magistrate. Sometime later appellant Ram Jatan was found in the labour camp at Barrackpore near Calcutta. He was arrested on 15-3-62 and produced before a Magistrate at Barrackpore (P. W. 21) where on 17-3-62 he madea confession Exhibit 12. (The judgment then discussed the evidence in the rest of the para and in paras 7 to 10 and proceeded : )
11. The case against the two appellants will be dealt with separately.
Appellant Paramhansa Jadav.
12. Though Munari's evidence about the con-duct of this appellant till the departure of the party towards Bada Jamada has been amply corroborated as given above, there is no corroboration of her evidence as to what happened sub-sequently except his extra-judicial confession. The crucial question for consideration is whether that, extra-judicial confession made before Dr. Asthana. (P. W. 6) on 18-2-62 in the afternoon and again repeated before Uchhab Swain (P. W. 12) on the next day early morning is admissible. When questioned about this confession Paramhansa stated that he was actually in police custody from 16-2-1962 before he was taken to Dr. Asthana. It was however urged by Mrs. Padhi on behalf of this appellant that though the police took care to formally arrest him only on 19-2-1962 as stated by the Circle Inspector (P. W. 32) he was for all practical purposes in police custody at the time he made the confession before Dr. Asthana and that consequently that confession would be inadmissible under Section 26 of the Evidence Act.
13. It is now well settled that 'police custody' for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v. Emperor, AIR 1924 Rang 173 the learned Judge pointed out the danger of construing the expression 'police custody' in Section 26 of the Evidence Act in a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge observed that if such a view be taken it will be very easy for the police to evade that section and that the correct interpretation would be that
'as soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in 'custody' within the meaning of Sections 26 and 27 of Evidence Act'. In Haroon v. Emperor, AIR 1932 Sind 149 and Pharho Shahwali v. Emperor, AIR 1932 Sind 201 it was pointed out that, even indirect control over the movements of sus-pects by the police would amount to 'police custody' within the meaning of that section. In Gurdial Singh v. Emperor; AIR 1932 Lah 609 and in In re Edukondalu, AIR 1957 Andh Pra 729 also the same principles were emphasised and it was observed that there may be police custody without formal arrest. In this connection some of the observations of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhya, AIR 1960 SC 1125 (at p. 1131) may also be noticed: The majority of Judges observed :
'Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be, said to be taken in custody : submission to the custody by word of mouth or action by a person is sufficient. A person directly giving apolice officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27 of the Indian Evidence Act.'
14. Here regular investigation of the case commenced on 15-2-62 by the S.I. (P.W.20) and the Inspector of Police (P.W.22), took over charge from him on the same day. He had examined some of the witnesses on that date and interrogated appellant Paramhansa on 17-2-62. Dr. Asthana stated that in the afternoon of 18-2-62 this Inspector accompanied by the S.I. came to his office with appellant Paramhansa at about 4 or 5 p.m. left Paramhansa there and went away. Then Param-hansa made the confession at 5-30 p.m. that day. He also admitted that Paramhansa was brought by the police in a police van and that the regular police officers went away after leaving him with Dr. Asthana, but some other persons who came in the Police van were left there. Apparently he did not realise the consequence of this admission. But the Circle Inspector who knew the dangerous consequences which could flow from these admissions went to the extent of flatly denying that he took appellant Paramhansa in a Police van to the residence of Dr. Asthana in the afternoon of 18-2-62. He totally denied having met Paramhansa anywhere on 18-2-1962. It is obvious that the evidence of Dr. Asthana should be believed and this Inspector must be held to be making an untrue statement with a view to take the confession outside the scope of Section 26 of the Evidence Act. The Inspector was very careful to say that he arrested Paramhansa at 9 a.m. on 19-2-1962. But ia the circumstances of this case I would hold that Paramhansa was in police custody for the purpose of Section 26 of the Evidence Act from the date of his interrogation by the Inspector on 17-2-1962 and that he continued to be in police custody when he was brought and left in Dr. Asthana's residence on 18-2-1962, at about 4 or 5 p.m. It is true that when this appellant made the confession before Dr. Asthana no police officer was near him. But some persons who came with the police in the Police van were left there. Thus there was indirect control and surveillance over the movements of the appellant by the police. This continued till the next day when the Circle Inspector came there and formally arrested him at 11 a.m. There is no doubt that the Circle Inspector adopted this clever subterfuge with a view to evade the provisions of Section 26 of the Evidence Act and he would have succeeded but for the admissions made by Dr. Asthana (P. W. 6).
15. It is well settled that once police custody has commenced, the mere fact that for a temporary period the police discreetly withdraws from the scene and left the accused in charge of some other person will not render the confession of the accused before that person admissible. Thus in Emperer v. Sheo Ram, AIR 1928 Lah 282 confession before a Post Master was held inadmissible. In Mt. Hassan Pari v. Emperor, AIR 1941 Pesh 22, confession before a Medical Officer in Hospital was held inadmissible under Section 26 of the Evidence Act as police custody had commenced. In Emperor v. Mt. Jagia, AIR 1938 Pat 308 the very fact that the accused was in charge of aprivate individual after he was first taken into police custody was held to be not sufficient to render his confession before that individual admissible. Empress v. Lester, ILR 20 Bom 165 and Emperor v. Mallangowda Parwat Gowda, ILR 42 Bom 1 : (AIR 1917 Bom 130) may also be seen in this connection. The Circle Inspector took him into custody on 19-2-62. He was produced before the Magistrate at Champua on the next day on 20-2-62 for recording his confession. But he refused to confess before the Magistrate. This shows that as soon as police influence was removed, the accused would not confess. I would, therefore, hold that the confession made before Dr. Asthana at 5-30 P.M. by appellant Paramhans on 18-2-1961 in the presence of Mr. Bose (P. W. 18) and repeated next day morning before Uchhab Swain (P. W. 12) would be inadmissible under Section 26 of the Evidence Act.
16. If the confession of appellant Paramhansais thus ruled out there is practically no corroboration of the evidence of Munari about his part inthe commission of the crime. Merely because hehad a strong motive to get rid of the inconvenienthusband and he was seen going with the party atabout 10 P.M. on the fatal night (17-12-1961) itcannot be said that he must have joined in thecommission of the crime. His subsequent conductalso is not at all suspicious. He stayed at Kiriburn and Ram Murat (P. W. 13) stated that aweek after the disappearance of Dukh HaranParamhansa told him that he went to Bada Jamadastation to see off Ram Jatan, Dukh Haran andMunari when they were proceeding to their nativeplace. Munari contradicted this statement bysaying that Paramhansa did not accompany themup to Bada Jamada. But she had stated beforethe police officer and the Magistrate at Gorakhpurthat Paramhansa also accompanied the party upto Bada Jamda.
17. It is true that in the judicial confession of Ram Jatan Paramhansa has been given the most prominent part in the commission of the crime. But this confession of the co-accused which was retracted could not be used as corroboration of Munari's evidence against Paramhansa, as I shall show presently while discussing the case against Ram Jatan Jaday.
18. I would, therefore, hold in disagreement with the Lower Courts that the charge of murder has not been established against appellant Paramhansa Jadav. Appellant--Ram Jatan Jadav.
19. The evidence against this appellant up to the stage of his going with Munari, Dukh Haran and Paramhansa towards the Bada Jamda is identical with that against Paramhansa. Munari's evidence is therefore fully corroborated up to that stage. As regards his participation in the crime the best corroboration is found in his own judicial confession (Ext. 12). He was found working in a Jute mill near Barrackpore, taken into custody and produced before a Magistrate (P. W. 21) on 16-3-62 for recording his confession. The learned Magistrate stated that he disclosed his identity gave him a warning and remanded him to jail custody for reflection. He was again produced before him the next day. The Magistrate gave him warningand further gave him three hours' time for reflection and then his statement was recorded after he was satisfied that no police officer was present in the Court room. The confession was attacked on two grounds. Firstly, it was not voluntarily made and secondly, it was not true. So far as voluntariness is concerned, the main contention of Mrs. Padhi for this appellant is that the record of confession (Exhibit 12) does not show that the Magistrate (P. W. 21) told this appellant that he was a Magisrate. But the record clearly shows that the Magistrate told the appellant that he was not bound to make a confession and that if he confessed that confession would be used against him. But the Magistrate has given evidence in Court and stated that he did tell the appellant that he was a Magistrate and he also asted him as to why he was making a confession to which the appellant replied that as he had done something wrong, he was going to confess. This oral evidence is admissible under Section 533 of the Criminal Procedure Code, (Bala Majhi v. State of Orissa, 1952 Cri. L. J. 1743 : (AIR 1951 Orissa 168). I would therefore hold that Exhibit 12 is admissible.
20. As regards the truth of the confession however, I must point out that on many essential details connected with the murder it is at variance with the evidence of Munari. Ram Jatan wanted to show that it was Munari who wanted to get her husband killed. But Munari pleaded complete innocence of any such intention. Ram Jatan wanted to ascribe the prominent part in the murder to appellant Paramhansa saying that Ram Jatan assisted him out of fear. According to him it was Paramhansa who severed the hea3 from the body. But according to Munari's evidence it was Ram Jatan who cut off the head and took prominent part in the commission of the crime having declared his intention to kill Dukh Haran prior to the party's leaving Kiriburn. Ram Jatan's confession is significantly silent as to the cutting of the right hand of the victim. Thus, in view of the studious attempts made by Ram Jatan to show that he was an unwilling accomplice in the commission of the crime it cannot be used against appellant Paramhansa.
21. But in my opinion, the confession of Ram Jatan can be used to limited extent against himself as corroborating the evidence of Munari about his participation in the commission of the crime notwithstanding the other unsatisfactory features noted above. It was, -however, urged that the confession should be used as a whole and should not be accepted in part. If the main evidence against the accused is based on the confession there may be some force in this contention. But where the main evidence against the accused is that of Munari that portion of the confession which incriminates the maker may be used as corroborative of her evidence (see Bhima Shaw v. State, 22 Cut LT 317 : (AIR 1956 Orissa 177) ). Ram Jatan has unambiguously admitted that he was a joint participant in the murder of Dukh Haran. According to him he caught hold of the victim and thereby facilitated his murder by his companion. His explanation that he was threatened with death by Paramhansa will not exonerate him from criminal liability. Hence, Munari's evidence against this appellantis adequately corroborated.
22. The prosecution has also relied on the fact that this appellant ran away from the place and was actually found working in Jute Mills near Barrackpore where he was arrested by the police. The labour officer of the factory P. W. 4 has stated that this appellant was working there under the name of Lakhman. This conduct of the appellant was urged by the learned Standing Counsel as an incriminating piece of evidence against him. But I find that in cross-examination this witness admitted that he had no personal knowledge of the fact that the appellant was working in the Jute Mills under the name of Lakhman. It was the clerk-in-charge of the attendance register who knew this fact. He was not examined as a witness. Even it be assumed that the appellant worked in a Jute Mill in Bengal in another name no inference of guilt can be made from this conduct alone. By February 1962 the suspicion had fallen on both the appellants and even innocent persons may lose their balance, abscond and try to conceal their identities under a false name. I would therefore, attach no importance to the subsequent conduct of Ram Jatan while working in the Jute Mills in Bengal.
23. For these reasons the appeal of appellant, Paramhansa Jadav Under Section 302/34, I. P. C. is allow-ed, his conviction and sentence are set aside and he is acquitted. He shall be set at liberty forthwith. But the conviction of the appellant Ram Jatan Jadav Under Section 302/34, I. P. C. and the sentence of imprisonment for life passed for that offence on him are maintained. His conviction Under Section 201/34 is also maintained.
23a. The appeal is thus allowed in part.
24. I agree.