P.K. Mohanty, J.
1. This appeal has been preferred against a judgment of the learned Sessions Judge of Ganiam-Boudh convicting appellants 1 and 2 under Section 302, I.P.C. and appellants 3 to 7 under Section 302/149, I.P.C. and sentencing each of them to undergo imprisonment for life. The offence under Section 201, I.P.C. was found to have been established against all the appellants, but no separate order of conviction and sentence was passed for this offence.
2. The prosecution case was that the appellants suspected the deceased Somanath Behera to be a sorcerer. The wife of appellant No. 3 Apudu Das died about two years before the occurrence and the appellants believed that her death was due to witchcraft practised by the deceased. They held a meeting in the village and directed the deceased to pay a fine of Rs. 400/- or else to go away from the village. The next day Somanath left the village since he could not pay the fine. Subsequently his wife paid the fine by sale of some articles. Even then the deceased remained away from the village. About 15 days before the occurrence he came to the village in ' the evening and went away on the next morning. On the date of occurrence i.e. 4-11-70, he came to the village in the evening when P.W. 4 Jasoda Behe-rani complained before appellant No. 1 that her child died due to the witchcraft practised by the deceased. At about midnight while the deceased and his wife were asleep, the appellants went there in a body being variously armed with weapons and forced open the front door of his house. They forcibly took the deceased towards a canal and killed him there.
3. On the next day, i.e. on 5-11-70 P.W. 1 Rekhy Beherani, the widow of the deceased reported at the P. S. that on the previous night her husband was forcibly taken away by the appellants and that he had not returned to house thereafter. (Vide Station diary Ext. 30). On 7-11-70 she found the dead body of her husband floating in the canal and informed the police. On the same day the headless body of the deceased was recovered from the canal. On 8-11-70 the Officer-in-charge of Hinjilikatu P. S. held inquest over 1 the dead body and despatched it for post-mortem examination. On 9-11-70 the accused persons were arrested and some blood stained articles were recovered from them. On 12-11-70 appellant No. 7 Gobardhan made a judicial confession implicating himself as well as his co-accused persons in the crime. After due investigation, the appellants were charge-sheeted by the police.
4. During their examination under Section 342, Cr.P.C. the appellants denied the charges and pleaded innocence. Appellant No. 7 Gobardhan retracted the confession and contended that it was made at the instigation of the police.
5. There is no direct evidence of any eye witness to the occurrence of murder. The order of conviction is based on circumstantial evidence and the judicial confession of appellant No. 7 Gobardhan Das. On appeal it is urged that the confession was inadmissible and the circumstantial evidence is not sufficient to sustain the conviction.
6. It was urged on behalf of the appellants that identity of the dead body has not been established. We see no force in this contention. Though the head was missing the dead body has been duly identified to be of the deceased. P.W. 1 identified it from the tattoo mark on the hand and the general features. It appears from the evidence of the Investigating Officer and the Doctor that there was tattoo mark on the forearm of the deceased. . Ws. 11 and 14 also stated to have identified the dead body from the tattoo mark. The evidence of P.W. 1 further shows that she identified the dead body from a brass ring on its finger and a cotton thread around its waist. The ring and the thread (M. Os. Ill and IV) were found on the dead body at the time of inquest by the Investigating Officer. The evidence of these witnesses clearly establishes the identity of the dead body.
7. The doctor (P. W. 16) who held the post-mortem examination on 8-11-70 found several injuries on the dead body and opined that the incised injuries on the neck and the amputation wound of the penis were possible by a sharp cutting weapon and that the death was due to shock resulting from the injuries. There is, therefore, no room for doubt that death of the deceased was homicidal.
8. The confessional statement is attacked on the grounds that it was recorded without allowing any tune for reflection and that the Magistrate did not explain to the confessant that he was not bound to make a confession and that any confession made by him would be used as evidence against him. There is no universal mandatory rule of law that a confession recorded without allowing time for reflection must be declared as inadmissible. The question has to be decided on the facts of each case. The observations of the Supreme Court in the case of Sarwan Singh v. State of Punjab : 1957CriLJ1014 that in ordinary circumstances an interval of twenty-four hours may be regarded as reasonable time for reflection is not to be taken as an absolute rule and as laying down fhat, whatever the circumstances, a confession recorded without allowing time for reflection is to be rejected as a confession that is not voluntary. Section 164, Cr. P. C does not lay down any rule for Riving time for reflection before recording & confession.. By Rule 14 of Chapter III, Part I of the High Court's General Rules and Circular Orders (Criminal) Volume I this Court also does not specify as to what minimum time should be given to the accused for reflection. All that it says is, 'whenever possible he (accused) should be allowed a few hours for reflection, free from the influence of the police, before his statement is recorded.' This rule has been framed for the guidance of the subordinate criminal courts. But failure to comply with the same will not ipso facto render the confession inadmissible if the Magistrate has complied with the requirements of Section 164, Cr.P.C.
9. Section 164(3) Cr.P.C. requires that the Magistrate before recording the confession should explain to the accused that he is not bound to make a confession and that if he does so the ame will be used against him as evidence. The Magistrate (P. W. 15) has omitted to comply with this requirement. In this evidence he admitted that he did not explain to the accused that he was not bound to confess. Failure to comply with this rudimentary requirement of law takes away much of the value of the confessional statement. There is nothing to show that the accused knew that he was not bound to make a confession and that if he did so, it would be used as evidence against him. In the circumstances, we hold that the confession is not one upon which a Court can properly act.
10. Now coming to the circumstantial evidence, the evidence of P. Ws. 1, 2 and 14 shows that the appellants believed that the death of the wife of appellant No. 3 Apudu Das was due to the witchcraft practised by the deceased and that on such superstitious belief they directed him to pay a fine of Rs. 400/- or else to leave the village. Being unable to pay the fine the deceased left the village and subsequently P.W. 1 paid the fine by selling some of her articles. But even then the deceased remained away from the village. About 15 days before the occurrence he had once come to the village and remained there for a night. Thereafter a child of P.W. 4 Jasoda Beherani died by vomiting and purging. On the evening of the date of occurrence when the deceased came to his house, P.W. 4 complained that the deceased was responsible for the death of her child, and the appellant No. 1 said that he would take care of the deceased. The evidence of these witnesses has not been materially shaken by cross-examination. We would, therefore, agree with the findings of the learned Sessions Judge that the appellants had a motive to do away with the life of the deceased
11. P.W. 1 Rekhy Beherani, the widow of the deceased has narrated as to how all the appellants came in a body being armed with weapons and forcibly dragged away her husband from the house. She stated that when the appellants entered into her house by breaking open the door, her husband got up on the thatch with a view to escape, but appellant No. 2 pulled 'him down from the thatch. Appellant No. 1 put a napkin around his neck and pulled him. Then all the appellants forcibly took away the deceased towards the canal. On her protest, appellant No. 1 gave her laps and threatened to kill her. She stated that appellants 1 and 2 were armed with swords and appellant No. 5 with a lathi. Appellant No. 7 was holding a torchlight. The recovery of the broken door left from a manure pit at the instance of appellant No. 2 amply corroborates her evidence. The Investigating Officer (P. W. 21) visited her house on 6-11-70 and found that the front door was missing and there were marks of violence on the door frame. He also found that the house-hold articles were lying scattered here and there. P.W. 5 Sombaria Behera who is a neighbour of P.W. 1 stated that in the night of occurrence he heard a noise and coming out of the house he saw appellant No. 4 Bansi Das holding the hand of the deceased and appellant No. 5 Pedini Bhagaban present there being armed with a lathi. He ateo found some other persons standing there but he could not recognise them due to darkness. He could recognise appellant No. 4 Bansi Das as he was only 20 feet away from him. He also found P.W. 1 crying at that time. Nothing has been elicited in his cross-examination so as to discredit his sworn testimony. P.W. 6 Danda Behera implicated appellants 1, 2, 4 and 5. According to him, appellant No. 4 was dragging the deceased by a napkin around his neck and others were with him. He found ell these persons taking the deceased towards the canal. He stated that when he went near, appellant No. 5 pushed him back and threatened to assault P.W. 11 Govinda Behera who is also a neighbour of P.W. 1 deposed to have seen all the appellants forcibly taking the deceased towards the canal. His evidence 6hows that appellants 1 and 2 were armed with swords, appellants 4 and 5 with lathis and appellant No. 3 with a Khanati. Though it was a dark night, he could recognise the appellants from close quarters. We see no reason to disbelieve his evidence. The evidence of these witnesses by itself is more than enough to prove, beyond possibility of any doubt, the case for the prosecution, but we have also on record some evidence about recovery of blood-stained articles from the appellants. The swords (M. Os. VII and VIII) were recovered from different places being pointed out by appellants 1 and 2. On chemical examination, blood was detected on these two weapons, but the quantity of blood was not considered sufficient for serological test. Some bloodstained clothes were recovered from appellants 2, 3, 4, 5 and 7, but the quantity of blood was not sufficient for serological test. Besides the above, the nail clippings and scrappings of all the appellants were taken and on chemical examination, blood was detected in the same though the origin could not be ascertained. The appellants did not offer any explanation about the seizure of the blood-stained articles and remained content with a mere denial. They did not also offer any explanation as to what happened to the deceased who was last seen alive in their company in the night. On a careful appraisal of the entire evidence on record, we come to the unhesitating conclusion thai; the appellants formed themselves into an unlawful assembly with the common object of committing the murder of the deceased Somanath Behera. Appellants 1 and 2 were charged under Section 302, I, P. C. and alternatively under Section 302/149, I.P.C. The learned Session* Judge relying on the confessional statement (Ext. 4) convicted them under Section 302. I.P.C. and though he recorded a finding in paragraph 16 of his judgment that the offence under Section 302/149, I.P.C. had been sufficiently established against all the accused persons, he refrained from recording a separate order of conviction and sentence under Section 302/149, I.P.C. against them. Once the confessional statement is excluded from consideration the fatal injuries cannot be attributed to these two appellants. On the facts proved, we are satisfied that all the appellants must be convicted under Section 302/149, I.P.C. even though it cannot be said which appellant is responsible for the fatal blow. The sentence of imprisonment of life awarded against each of the appellants! is, justified.
12. We see no merit in this ap-peal and it is. accordingly, dismissed.
G.K. Misra, C.J.
13. I agree.