S.K. Ray, J.
1. The two appellants and another were charged under Section 302/34, I. P.C. for having committed murder of one Bidika Jadumani by intentionally causing death in furtherance of their common intention, and under Sections 201/34, I. P.C. for having caused disappearance of the evidence of murder knowing or having reason to believe that murder had been committed, by burying the dead body with the intention of screening themselves from the legal punishment, in furtherance of their common intention. The third accused having died during the trial, the case proceeded only against these two appellants who have been convicted on both these charges and sentenced to rigorous imprisonment for life under Sections 302/34 and to rigorous imprisonment for four years under Sections 201/34, I. P.C. Both these sentences have been directed to run concurrently.
2. Appellant No. 1 is the father of appellant No. 2. On 1-4-1972 at about 7 p.m. they came to the courtyard of the deceased and called him to come out of his house. When the latter came out, they assaulted him with lathis indiscriminately. As a result of such assault, the deceased sustained bleeding injuries and fell down on the ground. Thereafter the appellants bodily lifted the deceased and carried him to the tobacco fleld of one Himirika Nai and furthej assaulted him there to death in which the third accused, who died during the trial, joined. They then carried the dead body towards Khargadpati jholla and buried him. The wife of the deceased (P.W. 3) informed P.W. 13 and other villagers about this occurrence, as her husband did not return that night. A panch was held in the village next day. The accused persons attended the panch and admitted of having killed the deceased, but did not disclose the place or manner of disposal of the dead body. P.W. 3 then went to her father-in-law and mother-in-law in village Chatorguda and informed them about the occurrence. They came to the village of occurrence and went to Khargadpati jholla seeking to find out the place of disposal of the dead body and then went to K. Singpur police station, which is at a distance of 40 K. Ms. from the village, and lodged first information report at noon on 4-4-72. The F. I. R. was recorded by the Officer-in-charge who then took up investigation.
The Officer-in-charge made a requisition to the S. D. O., Rayagada for deputing a Magistrate for disinterring the dead body. After disinterring the dead body on 6-4-1972 in presence of the Magistrate (P.W. 2), he held inquest over it and sent it for postmortem examination. The post-mortem examination was held at 11 a. m. on 7-4-72 by the doctor P.W. 4. He seized two wooden pieces (M. Os. V and VI) from a place about 30 cubits from the place of burial under the seizure list Ex. 5/1. These wooden pieces were stained with blood. He also seized blood stained earth from the tobacco field of Himirika Nai as per seizure list Ex. 6/1. He also seized some vomits from the road in front of the house of the deceased under the seizure list Ex. 7/1. He seized M. Os. VII to X (which are respectively cloth, a torn silk, a crow bar and a spade) on production by appellant No. 1. He also seized blood stained earth from the place of burial as per seizure list Ext. 10/1. He arrested the accused persons on 6-4-1972. While in custody, the appellant No. 1 produced a bloodstained lathi (M. O. I) from the haystack which was seized as per seizure list Ext. 11/1. The third accused who died during the course of trial also produced M. Os. II & XII, both bloodstained, from his house while in police custody. He sent the seized articles for chemical examination and serological test. After receiving their reports (Exts. 18 and 19) he submitted chargesheet.
3. The defence plea was originally one of denial, but from the trend of cross-examination of the prosecution witnesses it appears that they have also adopted the plea of right of private defence of person.
4. The prosecution in bringing home the charge relies on the testimony of eyewitnesses, namely, P.Ws. 3, 10, 11 and 12, extrajudicial confession made to P.Ws. 8, 9, 10, 11, 12 and 13, judicial confession recorded on 11-4-1972 by the Magistrate P.W. 2 (Exts. 2, 2/1 and 2/2), the conduct of appellant No. 2 who while in police custody led to the recovery of the lathi (M. O. I) from the haystack which was found to be stained with human blood as per reports of the Chemical Examiner and Sexologist (Exts. 18 and 19), and the conduct of appellant No. 1 in producing the hawine shirt M. O. VIII from bia house while in police custody which has been found to be stained with human blood (as per Exts. 18 and 19), and the conduct of the accused persons in disclosing the place of burial to the police.
The learned Sessions Judge discarded the judicial confession altogether holding the same to be inadmissible as only 3 hours had been given to the accused persons for reflection; but relying upon the evidence of the eye- witnesses and the conduct of the accused persons in giving discovery of the place of burial and in producing some murder weapons and other articles of clothing, all of which were found to be stained with human blood, convicted the accused persons as aforesaid.
5. There is no evidence of clear-cut pre-existing motive for this occurrence. As appears from the trend of cross-examination of P.Ws. 3, 10, 11, 12 and 13, the spyel-lants assaulted the deceased in defence against threatened assault on them from the Jailer. So the immediate motiv-s inferable from this type of cross-examination is protection of their own persons. But, however, it is well settled that if evidence of commission of offence by the appellants is clear and unimpeachable, absence of motive or omission to lead evidence of motive would not affect ths ultimate conclusion, derivable from the direct or circumstantial evidence, of the commission of the crime by them.
6. I will now proceed to analys; the evidence to see if the conclusion of the Sessions Judge that the appellants are guilty of murder is justifiable. But before that I most state that the evidence of the doctor makes it crystal clear that the death was homicidal. P.W. 4, as already stated, held post-mortem examination at 11 a. m. on 7-4-1972. The body was highly decomposed, but all the same he found the following injuries:-
(1) One lacerated wound over the face and involving the entire right side. On dissection of this injury he found fracture of the right arm of the right mandible at its middly crushed, lower premolar, molar teeth missing and in its place there was a socket. This injury was antemortem;
(2) One lacerated wound 3'xl' over the right shoulder, which on dissection disclosed fracture of the right clavicle lateral third; and
(3) Bruise with abrasion all over the neck and chest wall of the right side. This was antemortem in nature.
The medical opinion clearly is that the death was due to hearnorrhage and shock resulting in cardio respiratory failure flowing from the above injuries. Injury No. 1 was sufficient in ordinary course of nature to cause death which might have been instantaneous, or at any rate it must have taken place within one hour after infliction of the injuries. This medical opinion coupled with the oral testimony of P.W. 3 and other eyewitnesses establishes that the death was homicidal,
7. I will now proceed to analyse tha evidence of the eye-witnesses. P.W. 3 is the widow of the deceased. She speaks of the first part of the transaction when her husband was called out of the house and assault-ed in front of that house and, after some assault, he was carried away to a tobacco field for further assault. She informed this fact to P.W. 13 implicating the accused and the latter has corroborated her in this respect. Her evidence that during the first part of the assault P.Ws. 10, 11 and 12 were present is also corroborated by the latter. She has admitted that before the assault commenced there was exchange of hot words between her husband and the appellants. Nothing has been brought out in her cross-examination so as to affect the intrinsic merit of her testimony. A comment has been made that she is interested in the prosecution. It is true that she is, but it is most unlikely that she would let the real culprits get away and implicate persons who had nothing to do with her husband's death. This aspect would rather give an added weight to her testimony.
P.W. 10, the next eye-witness, is a witness to both parts of the occurrence, namely, assault in front of the house of the deceased and subsequent assault on the tobacco field and also to the fact that the three accused persons carried away the dead body from the tobacco field towards Khargadpati jholla. P.Ws. 11 and 12 also speak to the same effect. There is nothing in the cross-examination of P.Ws. 10, 11 and 12 which would affect the intrinsic merit of their evidence. They are co-villagers of the accused and it has not been shown that they are either inimically disposed towards the accused or unduly interested in the prosecution. On the contrary their evidence gets ample corrobora-tion from other circumstantial evidence as will be discussed hereinafter.
8. P.W. 9 is a witness to the carrying of the dead body by the accused persons towards Khargadpati jholla. He had gone out to attend the call of nature at about 10 p.m. during the night of occurrence and as it was a moonlit night he saw the accused persons carrying the dead body towards the Jholla at a distance of about 30 cubits from him. P.W. 8 also during the night of occurrence saw the appellant No. 1 holding M. O. X and appellant No. 2 holding M. O. IX and the third deceased accused holding another lathi. That was probably after the disposal of the dead body. In the context of v other facts and circumstances of the case this has some incriminating significance. No reason has been brought out and no ground has even been suggested to them on the basis of which the varacity of their testimony could be doubted.
The next piece of evidence is the conduct of the accused persons in keeping away from the village during the night of occurrence. It is in evidence of P.Ws. 9, 10, 11, 12 and 13 that they went to the house Of the appellants after the occurrence, but the latter was absent. Though by itself this piece of conduct may be consistent with innocence, yet in conjunction with other pieces of evidence this gives rise to a suspicion and probabilises the prosecution case.
8-A. The next item of evidence is the extrajudicial confession of the accused persons made before the P< Ws.' 9, 9, 10, 11, 12 and 13. This confession was faade in the panchayat convened on the morning following the night of occurrence. All the accused persons told that they had killed the deceased with lathis, but did not disclose the' manner and the place of disposal of the dead body. They also, at the same time' said that they killed him because he had come to assault them. The Sessions Judge ; discarded this extrajudicial confession holding that since the statement comprised of a part which is exculpatory in nature, the wholfr confession must be discarded as inadmissible. This position of law is not correct. As held by the Supreme Court in the case of Nishi Kant Jha v. State of Bihar : 1969CriLJ671 where a confession comprises of portions partly inculpatory and partly exculpatory, inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable or is contradicted or is shown to be untrue either by the statement of the accused under Section 342, Criminal P.C. or by other evidence on record. The exclupatory portion comprised of a statement that they killed the deceased by way of right of private defence of person. That defence plea has not been established by the accused persons, the burden being on them. Except a bald suggesion to witnesses here and there, there is no material on which such a plea could be said to be even probable. That apart, this part of the confessional statement is contradicted and shown to be false by the evidence of the eye-witnesses, whose testimony is beyond impeachment Therefore, that part of the extrajudicial confession in which the appellants have admitted of having killted the deceased is a piece of evidence which the court is entitled to take into consideration. On a perusal of the testimony of all these witnesses there is no doubt that the confession was voluntary any true.
9. The next pace of evidence is the judicial confession made by the accused persons before the Magistrate P.W. 2. The accused persons have confessed to have killed the deceased, but say that they did so as the deceased started abusing them in obscene language. This explanation or justification for the assault being somewhat exculpatory in nature end, for reasons already discussed in connection with the extrajudicial confession, being unacceptable as true, can be discarded and the I inculpatory part of the judicial confession can be relied on, in absence of any other infirmity in the same. This confession, however; was held inad- missible in evidence by the Sessions Judge on the ground that sufficient time had not been given to the accused persons for reflection. The same ground of attack also is repeated by the defence counsel here. It appears from the evidence of P.W. 2. the Magistrate, that the accused were produced before him.: by the police at 12,30 p.m. on 11-4-1972. He disclosed his identity to them and after warning them that whatever they might say may be used against them, gave them time for reflection till 4 p.m. Again at 4 p. m, he repeated his warning and thereafter recorded the confessional statement. According to the Sessions Judge the time of 3 1/2 hours given to the accused persons for cool reflection was not sufficient and that they should have been given at least 24 hours as is indicated in a Supreme Court case reported in : 1957CriLJ1014 (Sarwan Singh v. State of Punjab). I do not think that whatever the Supreme Court said in that case was a rule of law. There is no universal rule as to the extent of time to be allowed, for cool reflection, to the accused persons desirous of confession. In the cases of Dewan Chand v The State. : AIR1965Ori66 ; Akal Ali v. The State, 1970 Cri LJ 781 (Assam) and Subodh Kumar Dhar Ray v. State, 1966 Cri LJ 323 (2) (Cal) three hours of reflection were considered to be sufficient. The object of giving time for cool reflection to the accused persons is to give them sufficient time to free themselves from possible inducement or coercion which might have been exercised by or on behalf of the police on them for the purpose of confession. No suggestion has been made either to the Magistrate or to the I. O. that the accused persons were terrorised or induced by or on behalf of the police to make the confession which they did before the Magistrate. The facts of the present case are, therefore, not parallel to those of the case of Sarwan Singh v. State of Punjab (supra). In my opinion this judicial confession was voluntary and as indicated by other evidence on record was true. The learned Sessions Judge was wrong in discarding this evidence on the sole ground that sufficient time for reflection had not been given. This confession is, therefore, accepted as a valid piece of evidence on which alone the conviction could have been based. But. in this case, the direct and circumstantial evidence discussed above amply corroborate this judicial confession.
10. It has been amply proved by the I. O.. and also by the seizure witnesses that discovery of the lathi M. O. I was given by appellant No. 2 while in police custody from the haystack and this lathi was found to be stained with human blood as per the report of the Chemical Examiner and Serologist (Exts, 18 and 19). Appellant No. 1 also produced M. O, VIII from his house which has also been found to be stained with human blood. When asked about having produced the bloodstained clothes M. Os. VII and VIII which were found to be stained with human blood as per the Serologist's re- port (Ext. 19) he denied both the production and also the finding of the Serologist and the Chemical Examiner without affording any reasonable explanation for presence of blood on those articles. This is a false explanation in view of the evidence of P.Ws. 6 and 14 and Exts. 18 and 19. The falsity of the explanation is a factor which adds weight to other prosecution evidence against him, M. O. I, the lathi, which was found to be stained with human blood by the Serologist's report (Ext. 19) was produced by appellant No. 2 while in police custody from the haystack. When asked about such production he also denied it, which is apparently false in view of the testimony of P.Ws. 6 and 14. Since question regarding this lathi being bloodstained has not been put to him, that incriminating circumstance cannot be utilised against him. But all the same, his false explanation is also a conduct which goes against him.
11. Another piece of conduct which can be used against the accused is that they gave discovery of the place of burial of the deceased. P.W. 14, the I. O., has stated that all the accused persons pointed out the place of burial. There is no cross-examination on this point. That shows that all the accused persons had prior knowledge of the place where the dead body was buried. This inference coupled with the conduct in pointing out the place of burial is undoubtedly of incriminating significance..
12. In view of the overwhelming evidence coupled with extra-judicial confession and judicial confession and the various pieces of conduct of the accused persons, the only inevitable conclusion is that they were animated by common intention of not only causing the death of the deceased by assault but also causing disappearance of the evidence of murder, in furtherance of their common intention, for the purpose of screening themselves from the legal punishment for such offence of murder. The learned Sessions Judge was justified in finding both the appellants guilty under Sections 302/34 and 201/34, Indian Penal Code.
13. In the result, therefore, there Is no merit in this appeal which is dismissed.
14. I agree.