S.K. Ray, J.
1. The appellants; have been convicted under Sections 302/34, I. P.C. for having committed murder of Shyama Gouda in furtherance of the common intention of all of them on 13th July, 1972 in the evening, and sentenced to rigorous imprisonment for life each.
2. Appellants 2 and 3, namely, Sada Kichei and Gopi Kichei are nephews of appellant No. 1 Bandhu, There was enmity between the accused persons on the one hand and the deceased, on the other on account of dispute over a parcel of land qall-ed Dpmbobanal which was subsisting on the date of occurrence. There were several litigations pending between them in respect of the said land. P.W. 1 Js a Gunia who practises witchcraft and is reputed to cure ailing persons by occult practices and also by administration of country medicines. The daughter of the deceased fell ill and so he wanted to fetch P.W. 1 to cure her. He took his sister P.W. 2 alone with him and went to the village of P.W. 1. On the date of occurrence at about 5 p. m, the deceased accompanied by P.Ws. 1 and 2 was returning to his village and on the way they passed through the village Nanda-puriaguda of the accused persons. When they came near the house of the appellants the deceased began whistling in a provocative manner. Hearing this, Samara Kichei, brother of appellant No. 1, Bandhu, came out of his house armed with bow and arrow and challenged the deceased to a duel. At this stage, P, W. 1 intervened and separated them. Suddenly the appellants appeared on the scene fully armed and assaulted the deceased. Appellant No. 1 Bandhu, who was armed with a Tangi (M. O, I.) dealt three successive blows on the neck of the deceased who fell down in consequence of such assault. The other two appellants Sada and Gopi who were also armed with Tangis (M, Qs. II and III) dealt several other mows. The deceased died on the spot. After the occurrence, the accused persops went to the house of P.W. 3, the Naik of village Gangara juguma, of which the village of the accused is a hamlet, and appellant No. 1 Bandhu confessed to have killed his enemy, the deceased, with M. O. I, This, in short, is the prosecution story..
P.W. 1 accompanied by P.W. 2 went to Mundiguda Out Post under Mudulipada police station and .reported the occurrence on 14-7-1972 at 11 a, m. P.W. 7, the A. S.I. in charge of the out post, made a station diary entry, Ext. 3, and sent a copy of it to Mudulipada police station and himself commenced investigation by proceeding to the village of occurrence, The A. S, I. P.W. 7 found the deceased lying near the thrashing floor of one Dhobulu Madami and held inquest over the dead body on 14-7-1972 and despatched it for post-mortem examination. He seized one umbrella and some rice from the place of occurrence. After examining the witnesses he arrested the accused persons. He seized the Tangi M. O. I. on production by appellant No. 1, Bandhu, from his house. Similarly, appellants Nos. 2 and 3 respectively produced M. Os. II and III from their houses which were also seized. He forwarded the accused persons to court with a prayer to record their confessional statements. The confessional statements of appellants Bandhu and Sada were recorded by the Magistrate on 8-8-1972 which are respectively Exts, 18 and 18/1. Appellant Bandhu in his confessional statement admitted that he gave two strokes with his Tangi on the head of the deceased as a result of which he died. He, however, does not implicate his co-accused in this murder. P.W. 8, the officer-in-charge of Mudulipada police station, treated the copy of the station diary entry as F. I. R. (Ext, 11) and took over charge of investigation from P.W. 7 on 15th July, 1972. He tested the witnesses already examined by P.W. 7, prepared the spot map and seized some documents and sent the material objects for chemical examination and seroloeical test, On completion of investigation, he submitted charge-sheet.
3. Appellant No. 1 Bandhu pleaded guilty before the committing court by stating that he alone killed the deceased with Tangi as the latter was threatening to kul him since about two years. He varied this plea to a plea of right of private defence of person in the court of session. He states that when he came to the spot, the deceased shot two arrows at him and in order to defend himself he dealt blows with Tangi on the deceased.
The defence plea of appellant No. 2 Sada is one of denial, He has also denied to have made any judicial confession before the Magistrate. The defence plea of appellant No. 3 Gopi is also one of denial.
X X X
(After considering the evidence, the Judga proceeded-Ed.)
According to him the injuries were an-temortem in nature and injuries; 2, 3, 8 and 10 with corresponding internal injuries could independently cause death which was probably instantaneous. He opined that injuries 2, 3, 8 and 10 could probably be caused by M. O. I, and the other injuries by M. Os. n and III. There can be no question that death of the deceased was homicidal.
5. The prosecution has amply established a motive in this case which was a long standing enmity between the accused persons on the orte hand and the deceased on the other regarding Dombobahal land,
6. The prosecution in order to establish its case against the appellants has relied upon the direct evidence of the eye-witnesses P.Ws. 1 and 2, Judicial confessions made by appellants Bandhu and Sada (Exts. 18 and 18/1), extra-judicial confession made by appellant Bandhu to P.Ws. 3 and 4, the reports of the Chemical Examiner and the Serologist showing that M, OS.I. and II were stained with, human blood and M. O. HI with blood.
P.W. 1 has recounted the occurrence in detail. He has stated that appellants 1, 2 and 3 were respectively armed with M. Os. I, II and III and appellant No. 1 first dealt a blow with M. O. I on the neck of the deceased and when the deceased was falling down as a result of it, delivered successively two more blows. The other two appellants followed him by dealing several blows with their weapons on different parts Of the body. He has, however, stated in cross-examination that the deceased gave provocation by whistling and hurling abuses at the accused persons. He has, however, denied the defence suggestion that the deceased shot two arrows at appellant No, 1. He is neither a friend of the deceased nor an enemy of the accused persons. He is undoubtedly an independent witness. His evidence is also corroborated by the reports of the Chemical Examiner and the Serologist from which it is found that all the three weapons M. Os. I, II and III were staiped with blood, two of them (M, Os. I and II) with human blood. The origin of blood on M. O. Ill could not be determined due to disintegration. The second eye-witness is P.W. 2, the sister of the deceased. She has substantially and essentially corroborated the testimony of P.W. 1 as regards the different parts; played by the accused persons and the weapons with which they assaulted the deceased. The only discrepancy appears to be that while P.W. 1 has stated that the deceased was holding a bow and arrow, P, W. 2, on the other hand, has stated that her brother was not holding any such weapon. We think the P.W. 2's version in this respect is correct, because P.W. 7, A. S. I, who went to the spot immediately after recording the station diary entry has stated that he did not find any bow and arrow at the spot. On the contrary he found the umbrella and rice which according to P.W. 1 the deceased was carrying, The statement of P.W. 1 that the deceased was holding a bow and arrow can be discarded as a mistake or having been made out of confusion. P.W. 2 being a relation of the deceased can be said to be interested in the prosecution. Relationship alone cannot be a ground for discarding her evidence wholly, but has to be scrutinised a little more carefully. On an analysis wo do not find that her statement is untrue. Her relationship on the contrary would rather lend assurance to the truth of her statement because it is not expected of a relation that he or she will let the real culprit go scot-free while implicating an innocent person. In our opinion, therefore,' the testimony of P.Ws. 1 and 2 can be safely relied on.
7. Though conviction can be based on their testimony, nevertheless, it will be seen that their evidence is amply corroborate ed by other circumstances as indicated here-to-below. The first circumstance is the extra-judicial confession made by the appellants to P.Ws. 3 and 4, According to P.W. 3, all) the three appellants came to his house shortly after the occurrence, appellant No. I holding M. O. I and appellants 2 and 3 holding M. Os. II and III respectively. Appellant No. 1 confessed to him that he had killed the deceased with M. O. I. which was found by him to be stained with blood. P, W. 4 also states that while the appellant No. 1 was entering into house he was giving out that he had killed the deceased. These. extra-judicial confessions, however, implicate only appellant No. 1 and is silent about the part played by his co-accused. In the line with this he stated in the committing court that he killed the deceased and so also in his judicial confession (Ext. 18), The judicial confessions mady by appellants 1 and 2 have been exhibited in this case as Exts. 18 and 18/1. Appellant No. 1 has stated that there was some land dispute between him and the deceased and on the date of occurrence a quarrel arose between them on account of that dispute and he gave two cut blows on the head of' the deceased. Appellant No. 2 in his confession has stated that there was a quarrel between appellant No. 1 and the deceased in consequence whereof appellant No. 1 dealt Tangi blows on the head of the deceased and when the latter fell down he also dealt several blows with the Tangi. The confessions of appellant No. 1 to the extent that they do not implicate appellants 2 and 3, cannot be said to contain the whole account and, as such,, partly true so far as appellant No. 1 is concerned. It has also been made voluntarily and can be used at least against him as the part admittedly played by him appears to be true in the light of the testimony of P. Ws, 1 and 2 and medical evidence. Appellant No, 2 implicates himself as also appellant No. 1 but is silent about the part played by appellant No. 3. This confession, though does not contain a full account, is nonetheless partly true so far as he is concerned. It having been made voluntarily, there being nothing on record to suggest a contrary view and being found to be true to the extent of the parts played by him and appellant No, 1, in view of the oral testimony of P.Ws. 1 and 2 and medical evidence, can be utilised against him.
The learned defence counsel contended that these judicial confessions should not have been admitted_ into evidence at all in absence of examining the Magistrate who recorded the same,- We think this contention has no force. Section 80 of the Evidence Act provides that whenever any document is produced before any Court purporting to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any officer authorised by law to take evidence, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The Supreme Court in the case of Kashmira Singh v. State of Madhya Pradesh : 1952CriLJ839 , repelled the defence criticism in that case based on the fact that the Magistrate who recorded the confession had not been examined as a witness. Their Lordships endorsed the remarks of the Privy Council in Nazir Ahnied's case AIR 1936 PC 253 : 37 Cri LJ 897 regarding the undesirability of calling the Magistrate who recorded the confession as a witness. this Court in the case of Bisipati Padhan v. State 1969 O. J D. 71 : 1969 Cri LJ 1517, has also taken the view that the confessional statement can w admitted into evidence and made an exhibit without examining the Magistrate in court. This is what has exactly been done in this case by exhibiting the two judicial confessions as Exts. 18 and 18/1. If the defence had brought out such facts as would have destroyed lie presumption of Section 80 of the Evidence Act, then, in such a contingency, the prosecution may probably have baa to examine the Magistrate to corroborate the presumption and to prove that all the formalities required by law had been complied with before recording the Judicial confession. The appellants 1 and 2, however do not take any such plea that the formalities were not complied with. On the contrary, appellant No. 2 completely denied to have made a confession, a statement which is palpably false.
Another circumstance which corroborates the prosecution case is the medical evidence. P.W. 5, the doctor, had found ten external injuries and thirteen internal injuries. Unless several persons had been involved in the alleged offence, such a large number of in Juries would not be possible. This evidence greatly probabilises the prosecution case that all the three appellants Joined in the assault on the deceased.
The further circumstance which fortifies the prosecution case is that all the three murder weapons were detected to be stained with bleod, out of which M. Os. I and II were found to contain human blood. M. Os, I to III respectively were produced by appellants 1 to 3 from their houses while in police custody. Appellants 2 and 3 have denied to have produced M. Os. II and III, a denial which, in view of the prosecution evidence, is untrue and, as such, not acceptable. Then the production of murder weapons by the appellants are pieces conduct of incriminating significance and such conduct coupled with failure to explain stains of human blood by appellants 2 and 3 corroborate the direct evidence of murder led against them.
8. The appellant No. 1 has taken the plea of right of private defence of person, His case is that he assaulted the deceased with Tangi after the latter had shot two arrows at him. Reliance is placed on a statement mady by P.W. 1 in cross-examination that the deceased had arrow and a bow with him. As already found while discussing the testimony of P. Ws, 1 and 2, such a statement was an error and might have been made out of confusion. P.W. 7 who had immediately reached the place of occurrence and seized the articles lying there specifically states that he did not find any bow and arrow. If the deceased had in reality shot two arrows, those must have been lying near about. It is not the defence case that somebody else had picked up those arrows and the bow. If the umbrella and rice bag were lying there near the dead body, the bow and arrow should also have been lying there if really the deceased was armed with a bow and arrows, The defence has not been able to discharge its burden of establishing the plea of right of private defence of person.
9. The evidence that all the three accused persons came together armed with sharp-edged weapons (Tangis) and immediately started assaulting the deceased leads to the irresistible conclusion that they had entertained the common intention of causing the death of the deceased and that in furtherance of such intention they committed the offence of murder. The ingredients of Section 34 of I. P.C. appear to have been established.
10. In consideration of the aforesaid evidence, both direct and circumstantial, there can be no doubt that the prosecution has been able to bring the charge under sections 302/34, I. P.C. home to the appellants. In the result, therefore this appeal has no merit which is, accordingly, dismissed.
11. I agree.