G.K. Misra, J.
1. Ambai Majhi (appellant) has been convicted under Section 302, I.P.C. and sentenced to imprisonment for life. Though he has been convicted under Section 201, I.P.C., no separate sentence has been passed. The appellant was first married to one Kapura Del through whom he has a son Bhuchand Majhi (P.W. 6). Later on he married Sake (the deceased). After the second marriage, the first wife left the house and lived with her brother in another village; but P.W. 8, aged 6 years, remained with the father. In the night of Gamha Purnima day (5.8.63) there was a folk dance. The appellant was. ringing and tin deceased joined the chorus. As the deceased somewhat faltered in the chorus, the appellant asked her to go back home. As she expressed unwillingness, the appellant forcibly took her back home. At home he asked her to serve food. As she refused, he assaulted her with a bamboo stick. After she fell down, he throttled her and pierced an arrow on the right side of her chest. On the next morning, P.W. 11, a brother of the appellant found him weeping in front of the house. On being asked the appellant stated that his wife died.
P.W. 11 called some of the villagers who found the deceased lying in the bed room of the appellant with bleeding injury on the right side of the chest. They also found profuse blood lying on the floor. The villagers sent for Dibru Majhi (accused 2), who is the ex-chowkidar of the village. On being asked by accused 2, the appellant confessed in the presence of the villagers that he killed the deceased. He brought out the blood-stained arrow from the thatch and showed it to the villagers. Accused 2 was asked to lodge F.I.R. at the police station. It may be noted that the Chowkidari system had been abolished by then, and that though accused 2 was not the Chowkidar, the villagers were under a wrong impression that he had authority to look into these matters.
Accused 2 demanded Rs. 2 towards his expenses if he was to go to the thana for lodging the F.I.R. The appellant paid Rs. 1.75 nP. and both the accused left for the thana. At about noon, both of them came back and accused 2 stated that the matter should be hushed up and no case should be started if the appellant paid a sum of Rs. 10 as hush-money to him. The appellant borrowed a sum of Rs. 12 from P.W. 12 by pledging his bullock and gave Rs. 10 to accused 2. The appellant and some of the villagers carried the dead body to the cremation ground and burnt it. Thus the dead body was not available for postmortem examination.
2. Accused 2, who has been convicted under Section 201/109, I.P.C. and sentenced to R.I. for one year, has not filed any appeal.
3. The plea of the appellant in his statement under Section 342, Cr.P.C. is as follows: After the dance, he returned home with the deceased and his son. They were alone in the house till morning. He kept the blood-stained arrow in the thatch after bringing it out from the body of the deceased. The dead body was lying on the Charpoi in his bed room and there was pool of blood on the ground. He paid Rs. 1.75 nP. to accused 2 towards his expenses for accompanying him to the thana. He paid Rs. 10 to accused 2 in presence of the members of the Punch so that accused 2 would not take him to thana and on receipt of Rs. 10 the dead body was burnt under the permission of accused 2.
He admitted that he made the confession (Ex. 5) but it was made under threat and assault from a police constable named Hara. He, however, denied to have killed the deceased.
4. The learned Sessions Judge found that the death of the deceased was homieldal This finding is not disputed in view pf the adenitis case of the appellant that he found his wife killed by somebody and that he pulled out the blood-stained arrow from the chest of the deceased who was lying in a pool of blood. The only question for consideration is whether appellant killed the deceased.
5. The following pieces of evidence were, relied upon by the prosecution:
(i) The extra-judicial confession of the appellant before P.Ws. 7 to 11 and 13.
(ii) The evidence of the eye-witnesses (P.W. 6).
(iii) The Judicial confession (Ex. 5) before the Magistrate (P.W. 4) on 10.8.83, and
(iv) Some circumstantial evidence.
The learned Sessions Judge discarded the first two items of evidence for reasons elaborately discussed in his judgment. The learned Government Advocate has not pressed those items of evidence into service before us. We have gone through the evidence of P.Ws. 6 to 11 and 13. Those two pieces of evidence were rightly ruled out from consideration.
6. Mr. Nanda contends that the conversional statement was not recorded in conformity with Sections 164(3) and 364 (1), Cr.P.C. and, as such, it is inadmissible. Section 164(3) lays down that
no Magistrate shall record any confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily, and, when he records any conformity, he shall make a memorandum at the foot of such record to the following effect:I have explained to the accused 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.
Section 364(1) lays down that whenever/ the accused is examined by any Magistrate, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English and such record shall be shown or read to him, or, if he does not under stand the language in which it is written, shall be interpreted to him in the language which is understands, and he shall be at liberty to explain or add to his answers.
Both the appellant and the Magistrate understand Oriya. The Magistrate has recorded almost all the questions and answers in Oriya. In fact the essential confessional statement has been fully recorded in Oriya. Even the preliminary statements that P.W. 4 was a Magistrate and any confession made before him may be used as evidence against the accused and the answers thereto that the accused realised the position - have been recorded in Oriya. The preliminary questions - as to where, and when, the. accused, was first arrested, whereto he was taken after arrest and where form he came to Court were recorded In Oriya, but the answers to these questions have beep recorded in English. The basis of Mr. Nanda's argument that the questions and answers were not recorded in Oriya but in English, even though the Magistrate and the appellant knew Oriya, is confined only to the answers given to the aforesaid preliminary questions.
Under Section 533(1), Cr.P.C. if any Court, before which a confession recorded under Section 164 or Section 364 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in Section 91 of the Evidence Act, such statement shall be admitted if the error has not injured the accused as to his defence on the merits. It is well settled that Section 533 can cure errors of form and not of substance : 4SCR485 affirmed the dictum of the Privy Council in Nazir Ahmed's case in AIR 1936 PC 253 (2) where their Lordships have observed that where a power is given to do a certain thing in certain way, the thing must be done in that way and not at all, and that other methods of performance are necessarily forbidden.
Section 364, Sub-section (1) prescribing that the whole of the examination of the accused including every question put to him and every answer given by him shall be recorded in full in the language in which he is examined is one relating form and is not mandatory. The very provision in the section itself that in case it is not practicable, the examination can be recorded in the language of the Court or in English - shows that non-compliance with such form does not vitiate the confession unless prejudice is shown under Section 533. (1890) ILR 17 Cal 862 no doubt supports the contention of Mr. Nanda. But we are unable to accept it as correct in view of the language of the section not making it imperative. AIR 1940 Pat 163 and : AIR1952All486 are clear authorities in support of our view that it is merely an irregularity of form which is curable under Section 333. In this particular case, there is absolutely no question of prejudice.
The answers to the two preliminary questions were merely recorded in English and all the rest were recorded in Oriya, which is the language of the appellant. No suggestion was made to P.W. 4 that recording of those two answers in English was prejudicial to the case of the accused on the merits. The Magistrate, however, stated that the accused understood Oriya in which language all the answers were read over and explained whereafter the accused put his thumb impression and the Magistrate signed. We find no substance in this argument.
The next objection is based on the statement of the Magistrate (P.W. 4)-
I have not noted down all the questions put by me and the answers given by the focused.
It was not elicited from the Magistrate as to what were the other questions put which were not recorded. The identical questions cropped up for decision before a Full Bench of this Court in ILR 1951 Cut 65 : AIR 1951 Orissa 168, Their Lordships unanimously held that the Magistrate recording a confession was bound to record every question put by him to the accused and every answer given by the accused to the same in order to satisfy himself that the confession made was voluntary. It was, however, further observed that if the questions had been made, evidence could be given both of the factum of the questions and answers and of the contents of the same. If the substance of the actual questions and answers can be supplied by such evidence, that cures that defect completely. In this ease, all the relevant questions and answers have been recorded.
The only suggestion made in cross-examination to P.W. 4 was that he did not enquire from the accused as to whether he was tutored by anybody to make the confession. P.W. 4 denied the suggestion. We are satisfied that in this case almost all the relevant questions and answers were recorded and the only other question put by the Magistrate to ascertain whether the appellant was tutored before the confession was not recorded and the non-recording of such question and the answer thereto is supplied by his evidence in Court and the defect is curable.
Mr. Nanda also contended that column 7 in the confessional statement prescribing a brief statement of the Magistrate's reasons for believing that the statement was voluntary has been kept blank. Factually this is correct. In ILR 1951 Cut 65 : AIR 1951 Orissa. 168 (F8)) this promt was also considered and their Lordships observed that the requirement of the certificate was essentially one of form and non-compliance with it could be cured under Section 533, Cr.P.C. though the absence of such a certificate might raise doubts as to whether the Magistrate intelligently and consciously complied with the other requirements under Section 164(3), Cr.P.C.
We have gone through the evidence of P.W. 4 carefully and looking to his evidence and the questions and answers in the confessional statement, we are satisfied that the confession was voluntary and the provisions of Section 164(3) and Section 364(1), Cr.P.C. were substantially complied with.
7. The next question for consideration is whether the confession is true. To appreciate this contention, the substance of the confessional statement, given in Oriya, may be translated into English-
There was a dance in the village on last Monday which was a Full Moon day. My wife Salge had been there to dance. Both of us had taken wine. When I felt hungry I called her from the dance to the house. I asked her for food but she refused to serve and told me that I should ask for food from my other wife. In anger I went out of the house but I came back and assaulted her. I pierced her right side belly with an arrow. She died. Next day I told my brother that I killed my wife under intoxication. He told me that I had commited an offence and I should give intimation in Thana irrespective of the consequences. He called the Chowkidar and narrated the entire story before him. To lodge information the Chowkidar asked for his expenses. I paid him Rs. 1.75 nP. and both of us went together to the Thana. On the way Chowkidar Dibru Majhi asked for Rs. 10 more and told me that if 1 would pay the amount, there would be no necessity to go to the Thana. Then after bringing Rs. 10 from Suna Majhi, a moneylender, I paid to the Chowkidar. He asked me to get the dead body burnt. Then in presence of members of the Punch I got the dead body burnt.
Though as a matter of pure law a conviction can be based on retracted confession, as a matter of prudence, it requires corroboration. It is the duty of the Court to enquire into all the material points and surrounding circumstances and satisfy itself that the confession is true. What constitutes sufficient corroboration of retracted confession in a particular case, no hard and fast rule can be laid down. Corroboration must, however, be on some material particulars connecting the accused with the offence. Production of property, the subject of the offence, or some other articles connected with the commission of the offence, will be sufficient corroboration. The rule of prudence does not, however, require that each and every circumstances, mentioned in the confession with regard to the participation of the accused person with the crime, must be separately and independently corroborated. In that case, the rule itself would be nugatory as independent evidence would itself afford sufficient basis for conviction and it would be unnecessary to call confession in aid (S) : 1957CriLJ481 .
The truth of the confession in this case is corroborated by the statement of the appellant under Section 342, Cr.P.C. The appellant speaks of the dance and returning home with his wife. The statement in the confession that he pierced the deceased with an arrow on the right side of the belly is corroborated by his statement under Section 342 that he brought out the blood-stained arrow from right side of the belly of the deceased and kept it in the thatch wherefrom he produced before the villagers. This production connects the appellant with the crime. He admits to have paid Rs. 1,75 nP. to the Chowkidar for accompanying him to the Thana and that he paid a further sum of Rs. 10 to the Chowkidar on their return from the way and that on his direction he got the deceased, who had died as a result of murder, burnt. These statements fully corroborate the confessional statement in material particulars. It is needless to search for any further circumstances. The admission of the appellant in Court established the truth of the confessional statement.
That apart, there are telling circumstances which corroborate the confessional statement. The deceased, P.W. 6 and the appellant were the only inmates of the house in that dreadful night. He found the wife murdered. His normal conduct would be to search out the real offender. Without so doing, he got the dead body burnt on payment of Rs. 10 to the ex-Chowkidar. His conduct throughout is fully inconsistent with his innocence. On, examination of the confession and comparing it with the rest of the prosecution evidence and the broad probabilities of the case, we are satisfied that the confession is true. The conviction can, therefore, safely be based on the retracted confession.