G.K. Misra, J.
1. The appellants have been convicted under Section 302/34 I. P. C. and each of them has been sentenced to imprisonment for life. They have also been convicted under Section 201/34 I. P. C. and each has been sentenced to R. I. for 5 years. The sentences are to run concurrently.
2. The prosecution case may be outlined in short. The 3 accused and the deceased are all Adibasis. One Bhasavan had two sons Tiharu and Niharu (the deceased). Pingal (accused No. 1) is the son of Tiharu. Each of the accused had separate disputes with the deceased. On 26-2-66 at about 4 to 5 P. M. the deceased and accused Budni purchased two bottles of liquor from P. W. 11. They drank one bottle and carried the other bottle and proceeded to the house of Budni. Being drunk the deceased slept in the house of Budni. At about 10 to 11 P. M., Budni called the other two accused and supplied them the plough-share (M. O. II) and the sickle (M. O. VII). With these two weapons accused Pineal and Bisram assaulted and killed the deceased. These two accused called P. Ws. 9 and 10 (P. Ws. 8 and 9?) to come to the house of Budni to take liquor. P. Ws. 9 and 10 came to the house of Budni, but were not supplied liquor. There they found Pingal and Bisram bringing out the dead body of the deceased from inside the house of Budni and carrying it towards the paddy field of one Syamsundar. Next morning P. W. 3 noticed the dead body, while going to his field. He informed the fact to P. Ws. 4 and 5 who identified the dead body to be of the deceased. P. W. 5 lodged the F. I. R. (Ext. 4). The defence is one of complete denial. The learned Sessions Judge held that the death was homicidal and that the accused killed the deceased.
3. There is no dispute before us that the death was homicidal. The Doctor (P. W. 1) opined that the death was due to asphyxia by strangulation. The strangulation was not by means of throttling, but by placing a hard substance, such as, iron rod or a lathi. The strangulation might have been caused by plough-share. The injuries were ante-mortem. On the Doctor's evidence, conclusion is irresistible that the death was homicidal.
4. The next question for consideration is whether the accused killed the deceased. There are no eye-witnesses. The conviction is based on circumstantial evidence, judicial confessions of all the accused and extra-judicial confession of accused Budni. Before dealing with the judicial and extra-judicial confessions, it will be better to examine the circumstantial evidence to find out if they are sufficient to warrant the conviction.
5. There is ampte material on record that all the three accused had separate disputes with the deceased. There was land dispute between accused No. 1 and the deceased. In his statement under Section 342 Cr. P. C. accused No. 1 Pingal admits that there was a dispute regarding possession of the ancestral land. Similarly accused No. 2 Bisram admits in his statement under Section 342 Cr. P. C. that he had a dispute over kusummal land. Accused No. 3 Budni does not admit the existence of any quarrel. It is however established that Budni being drunk caught hold of the deceased and got over his chest in broad day light. Budni begged apology and paid a fine of Rs. 5/- imposed by the punch. 15 to 20 days before the date of occurrence, the deceased had been fined Rs. 5/- for outraging the modesty of Budni in village lane. P. Ws. 6 and 7, the son and the wife of the deceased respectively deposed to the fact of existence of bad feelings between the deceased and each of the accused separately. P. W. 12, a member of the punch, refers to the dispute between the deceased and Budni when Budni got over the chest of the deceased. He deposes to the fact of Budni tendering apology and paying Rs. 5/- as fine. The position is thus well established that each of the accused had bad feelings towards the deceased.
6. P. W. 11 deposes that on the date of occurrence at about 4 to 5 P. M. Budni and the deceased purchased two bottles of liquor. They drank one bottle in his shop and carried the other bottle, and proceeded towards the house of accused Budni. Nothing substantial was elicited in cross-examination to destroy his evidence. All that was pointed out was that before the police he had stated that the price of the two bottles of liquor was 12 nP. and not 12 annas as is deposed in court. The learned Sessions Judge rightly pointed out that the price of two bottles of liquor can in no circumstances be 12 nP. and the recording by the I. O. was obviously a mistake.
7. From the house of Budni, a cloth, a mat, some earth and a plough-share were seized. All these articles were stained with human blood, as found on serological test. P. Ws. 8 and 9 found the dead body of the deceased inside Budni's house. Accused Pingal and Bis-ram had tied the dead body with ropes and were carrying it with the help of wooden pole as animals are carried. As P. Ws. 8 and 9 were not in fact supplied with liquor, the learned Sessional Judge treated them to be in position of accomplices. He however relied on their evidence as being corroborated otherwise. We do not agree with the learned Sessions Judge that P. Ws. 8 and 9 are analogous to accomplices. There are no materials on record to come to such a conclusion. They were cross-examined at length. Nothing was suggested as to why they would falsely implicate the accused. We accept their evidence as reliable.
On the aforesaid recoveries and the evidence of P. Ws. 8 and 9, conclusion is irresistible that the deceased had been murdered in the house of Budni and that he was thrown away into the field by accused Pingal and Bisram with the knowledge of Budni.
8. The plough-share was kept in a very suspicious place. It was seized from a paddy-container inside the house of Budni, as would appear from the evidence of P. Ws. 16 and 19. The evidence of the Doctor is that with the plough-share the strangulation could be caused. The plough-share (M. O. II) was stained with human blood. Thus the weapon of offence was recovered from the house of Budni kept in a paddy-container where plough-shares are not kept.
9. Budni furnished no reasonable explanation as to in what circumstances the murder was committed in her house, particularly when the deceased was seen in her company last when both of them were drunk. On the contrary, she took a false defence that she was residing in the house of her husband's elder brother and this fact is disproved by the prosecution evidence. The other two accused also furnished no explanation as to their presence in the place of murder and their conduct in carrying the dead body.
10. Both accused Pingal and Bisram furnished information to the I. O. that they had each concealed a separate piece of rope in the paddy field of one Brusav. Each of them separately led the I. O. and other witnesses to the paddy field and brought a rope. One of the ropes contained human blood, as found on serological test. By the time the ropes were exhibited in court as material objects, they had been tied into one. It is therefore not possible to say as to whether the rope produced by one or the other contained human blood. Whatever they may, each of them gave discovery of a piece of rope, and according to the evidence of P. Ws. 8 and 9 the dead body was carried with the help of ropes.
11. The circumstances may be summed up:
(i) All the accused had separate disputes with the deceased. Each of them had therefore a motive.
(ii) The accused and the deceased were seen together last and also proceeding towards the house of Budni. Both of them had taken liquor and carried one bottle home.
(iii) The deceased was murdered in the house of Budni.
(iv) Accused Pingal and Bisram were found carrying the dead body with ropes from the house of Budni towards the paddy field.
(v) Accused Pingal and Bisram had no reasonable explanation as to how they were at the place of murder and carrying the dead body. They merely denied the fact.
(vi) Budni furnished no reasonable explanation as to how the murder was committed in her house and the dead body was carried by the other two accused. On the other hand, she gave a false explanation that she was not residing in her own house, but was residing in the house of her husband's elder brother.
(vii) The plough-share, which is the weapon of offence, was seized from the house of Budni being stained with human blood.
(viii) Accused Pingal and Bisram furnished information to the I. O. that they each had separately concealed a piece of rope. The evidence is that the dead body was carried with the help of ropes. They gave discovery of the ropes, and their statement is admissible under Section 27 of the Evidence Act.
All these circumstances taken together leave absolutely no room for doubt that the three accused joined together and killed the deceased and threw the dead body to the field so as to screen the offence. All the links in the circumstantial chain are established. The conviction is well founded on the circumstantial evidence alone.
(In Paragraph 12 the judgment holds that the extrajudicial confession made by Budni to P. Ws. 13 and 14 and which had been retracted, was voluntary and substantially corroborated. The judgment then proceeds:)
12-13. All the three accused made judicial confessions before the magistrate Sri K. N. Pradhan (P. W. 15). So far as Budni is concerned, her confessional statement runs thus:
'A month before, the deceased had outraged my modesty by raising my cloth in the village lane of my village Kendudihi. I never heard that he used to drink. In the night of Saturday the deceased went to my house drunk and slept there. I closed my doors. I called Pingal and Bisram as I had fear.'
It would be apparent from the aforesaid statement that she does not implicate herself to have committed any offence. It is self-exculpatory. As was said in AIR 1939 P. C. 47, Pakala Narayana Swami v. Emperor:
'A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.'
It was contended that the admission made by Budni is not admissible in evidence as it was not recorded in the manner prescribed for recording evidence and that the statement of an accused recorded under Section 164 Cr. P. C. is not admissible as an admission if it does not amount to a confession. To appreciatethe aforesaid contention, Section 164 (1) and (2) Cr. P. C. may be noticed-
' (1) Any Presidency Magistrate, any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the State Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the enquiry or trial.
(2) Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the magistrate by whom a case is to be enquired into or tried.'
It will thus be seen that the section makes provision for recording of statement or confession. Confession clearly refers to that of an accused. The word 'statement' used in the section is not limited to the statement of a witness alone. It also covers the non-confessional statement of an accused. Thus a statement of an accused, not amounting to a confession, is admissible in evidence provided it is relevant and admissible under any of the provisions of the Evidence Act.
In (1950) 77 Ind App 65 (PC) Ghulam Hussain v. King, their Lordships of the Judicial Committee accepted the aforesaid view thus:
'The question here is quite different. It is whether a statement made under Section 164, which does not amount to a confession, can be used against the maker as an admission within the purview of Sections 18 to 21 of the Indian Evidence Act. This question has been raised in Courts in India and it has been answered in the affirmative. . . .Their Lordships consider that the affirmative answer is right. The fact that an admission is made to a magistrate while he is functioning under Section 164 of the Code of Criminal Procedure cannot take it outside the scope of the Evidence Act.'
The statement of Budni is certainly not a confession, but contains admissions of certain relevant facts. It is accordingly admissible under Sections 18 to 21 of the Evidence Act, provided it was voluntary.
14. Accused Pingal's judicial confession runs thus:
'Niharu was my uncle. On account of dispute over land I killed him with a plough-share on Saturday night in the house of Budni. Bisram Khadia was with me. He also caught hold of the accused and killed him.'
Accused Bisram's judicial confession is as follows:
'On Saturday night, I and Pingal killed deceased in the house of Budni with a plough-share. We had disputes with him over land.'
These are clear confessions, and proved to be voluntary and true, are admissible in evidence.
15. The only question for consideration is whether the judicial confessions made by Pingal and Bisram and the statement made by Budni were voluntary and true, as each of them has denied to have made any statement before the magistrate.
For reasons already discussed at length, there cannot be any doubt that the statements are true. It is not necessary to repeat how they are fully corroborated in material particulars.
16. The more important question, in the facts and circumstances of this case, is whether the statements are voluntary. The learned Sessions Judge accepted the statements as voluntary, as no reasons for retraction were given by the accused and on the other hand each of them made a false statement in saying that they did not give any statement before the magistrate. In this case the magistrate (P. W. 15) has thrown his responsibility to the winds. He was very perfunctory and superficial in examining the accused. Under Section 164, Sub-section (3) Cr. P. C., a magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him, and no magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily, and, when he records any confession, he shall make a memorandum at the foot of such a record to the following effect:
'I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(signed) A. B., Magistrate'
17. Questions put to all the accused were word per word same. Only two questions were put. They are-
Q. 1-- Do you know that I am a Magistrate, 1st class and any confession made by you will be used as evidence against you.
Ans. -- Yes.
Q. 2 -- Are you willing to confess voluntarily?
Ans. -- Yes.'
No other question was put The question for consideration is whether the learned magistrate substantially complied with Section 164 Cr. P. C.
As has already been stated, Sub-section (3) enjoins that two questions must at least be put to the accused. It shall be made clear to him that he is not bound to make a confession. The learned magistrate omitted to put this vital question. In his deposition he admits that he did not explain to the accused that they were not bound to make confession. In the confessional statement he has however given a certificate that he explained to each of the accused persons that he was not bound to make a confession. The certificate is in direct contradiction of his evidence in court The certificate must accordingly be taken to be a false one. Law is well settled that besides putting the compulsory questions as prescribed in Sub-section (3), the magistrate must put all possible questions to explain to the accused that he would not be afraid of any extraneous pressure, threat, promise or inducement. The questions put in the confessional statement are too cryptic and general, and were not intended to disabuse the mind of each of the accused from external influence.
As was pointed out in AIR 1957 SC 637, Sarwan Singh v. State of Punjab:
'The act of recording confession under Section 164 Cr. P. C. is a very solemnact and, in discharging his duties underthe said section, the magistrate musttake care to see that the requirements of Sub-section (3) of Section 164 are fullysatisfied.'
We are however not to be taken to mean as emphasising upon mere technicalities and the form of the questions to be put. What we want to impress upon is that there must be clear endeavour on the part of the magistrate to explain the position to the accused so that he would feel that he was a free man.
This learned Magistrate was wholly oblivious of his responsibilities. We are of opinion that he should not be vested with criminal powers until he gathers more experience and becomes alive to a real sense of responsibility. For the aforesaid reasons, we reject the confessional statements of Pingal and Bis-ram and the statement of Budni evidenced by Ext. 5 series.
18. The rejection of the confessional statements does not however affect our ultimate conclusion. As has already been discussed, the convictions of the appellants are well founded on circumstantial evidence. The conviction of Budni can also be supported on the basis of her retracted extra-judicial confession.
19. There is no merit in this appeal. It is accordingly dismissed.
20. I agree.