P.K. Mohanti, J.
1. This appeal has been preferred by the State against an order of acquittal passed by the learned Additional Sessions Judge of Keonjhar acquitting both the respondents of the charges under Sections 302/34 and 201/34, Indian Penal Code.
2. Prosecution case was that on 27-4-1971 the respondents committed the murder of a tiny boy named Bimbadhar aged about 2j years and threw his body into a pond with the common intention of causing disappearance of the evidence of murder. The incident took place iat the house of P .W, 4 Govinda Sahu at village Mudulipada under Anandapur police station in the district of Keonjhar.
3. The deceased is the daughter's son of P.W. 4. He belonged to village Baniari which is adjacent to village Mudulipada. On the date of occurrence he had come with his father (P.W. 3) to the house of P.W. 4. P.W. 3 went to a market leaving the boy incharRe of his mother-in-law Panchali (P.W. 6). After some time Panchali went to the paddy field carrying meal for her husband. She left the boy in charge of her daughter-in-law Suruji (respondent No. 1). After her return from the paddy field P.W. 6 did not find the deceased. On enquiry. Suruji told her that the bov had gone somewhere without her knowledge. P.W. 4 along with some others searched for the deceased but could not find him anywhere. At about 7 P, M. in the night, P.W. 4 and P.W. 10 Narayan Chandra Maharana lodged a missing report at Nandipada out post upon which a station diary entry was made vide Ext. 16.
In the meantime P.W. 1 Hari Barifc discovered the dead body of the deceased in the pond of one Rama Ojha of village Mudulipada, He raised an alarm which brought the villagers to the spot. The Sartpanch (P.W. 5) and the NaUo Sar-panch (P.W. 7) came there and saw the deadi body lying in the pond with cut in- juries. Then P.W. 7 went to the house of P.W. 4 and found marks of blood on the wearing saree of respondent No. 1. He intimated this fact to the Sarpanch. When the Sarpanch enquired about the cause of death from respondent No. 1 she said that she would narrate the facts if the sarpench would go inside the house. Then the Sarpanch went inside the house. Respondent No. 1 narrated before him that while she was having sexual intercourse with respondent No. 2 in the kitchen room the deceased went there and cried loudly. So she along with respondent No. 2 committed the murder of the deceased by giving strokes with a Paniki. She also said that after committing the murder they took the dead body and kept it inside the granary and sometime thereafter they threw it into the pond. When P.W. 5 confronted the confession of respondent No. 1 to respondent No. 2 Sripati, he denied his alleged complicity in the crime but offered a sum of Rs. 100/- to P.W. 5. When P.W. 5 questioned him as to why he was offering Rs. 100/-, he confessed that he had committed the murder of Bimbadhar along with respondent No. 1.
4. After the occurrence came to light, P.W. 2 along with some others proceeded to Anandapur Police Station (about 24 kilometres distant from the spot) and lodged F. I. R. on the next morning at 8 A. M. The A. S.I. of Police (P.W. 18) arrived at the spot at 12 noon and arrested both the respondents at 3 p.m. He seized the saree (M. O. Ill) from the person of respondent No. 1 as it contained blood stains and seminal stains. He also seized the Paniki (M. O. II). He found blood stains on the doors of the granary. Going inside the granary he found that the paddy heap had undergone a depression. He seized some paddy soaked with blood. P.W. 16, the S.I. of police took charge of the investigation on 29-4-1971 at 9 A. M. The doctor P.W. 20 held post mortem examination over the dead body on 29-4-1971' and found six incised wounds on different parts of the body. He opined that the injuries were ante mortem and might have been caused by the Paniki - M. O. II at the time of post mortem examination he found some paddy sticking to the injuries. He also examined the vaginal smear of respondent No. 1 Suruji and found some dead spermatozoa present. He opined that respondent No. 1 had cohabitation about 72 hours before the time of her examination. On 3-5-1971 respondent -No. 1 made a judicial confession (Ext. 24) before the Magistrate - P.W. 19. After due investigation, charge-sheet was submitted against tooth the respondents under Section 302/34 and 201/34, I. P.C.
5. The respondents pleaded not guilty to the charge and retracted from the confessions.
6. In order to establish the charges, prosecution relied on the following items of evidence:
(i) judicial confession of respondent No. 1 before the Magistrate (P.W. 19);
(ii) extra-judicial confessions of both the respondents before P Ws, 5. 7 and 14; and
(iii) the circumstantial evidence about the deceased having been last seen alive in the company of respondent No. 1 and the seizure of the blood stained articles.
7. The learned Sessions Judge came to the finding that the death of the deceased was homicidal. This finding is not assailed before us. The medical evidence clearly establishes that the deceased died as a result of the injuries sustained.
8. In the Judicial confession (Exhibit 24), respondent No. 1 stated that while she was having co-habitation with respondent No. 2 in the kitchen room the deceased went there and cried loudly. She apprehended that the deceased might reveal this affair to P.W. 6. So, being asked by respondent No. 2 she caught hold of the deceased and respondent No. 2 gave him three to four blows on the chest and head by means of a Paniki as a result of which the deceased died. Then both of them carried the dead body inside the granary and concealed it there. At about evening, being asked by respondent No. 2, she brought out the dead body from the granary and respondent No. 2 carried it in a basket and threw it into the pond. The learned Sessions Judge held that the confession was not voluntary. The grounds taken by him for such a finding are:
(a) The confessant was under police custody for more than 24 hours.
(b) The Magistrate recording the confession did not allow 24 hours time to the contestant for cool reflection.
(c) The confession was not recorded in the Oriya language in which it was made, but in English.
Relying upon some minor contradictions in the Judicial and extra-judicial confessions of respondent No. 1 the learned Sessions Judge also held that the confession was not true.
9. It appears that both the accused were taken to custody by a Con- stable on the night of 27-4-1971. Ext. 27, the order-sheet f the Magistrate shows that they did not complain of any ill-treatment by the police. Immediately after their production, the Magistrate cautioned the accused persons that they were not bound to confess and that any confession made by them would be used as evidence against them. Then he gave them time till 3-5-1971 for cool reflection. When they were produced before the Magistrate on 3-5-1971, accused No. 1 Suruji offered to confess while accused No. 2 Sripati declined to do so. Then the Magistrate withdrew respondent No. I from the police custody and kept her in charge of the Court peon. He disclosed his identity to respondent No 1 and explained to her that she was not bound to make any confession and that any confession made by her would be used as evidence against her and sihe would be punished according to law.
The record of confession (Ext 24) shows that the following questions were asked by the Magistrate 'Do you know that I am a Magistrate, first class and you are not bound to confess anything?' to which respondent No. 1 replied 'Yes.' 'Do you know that if you confess, it would be used as evidence against you and you would be punished according to law ?'; The answer was 'Yes'. The next question was 'Are you confessing voluntarily ?' The answer was 'Yes.' Then she was asked 'Are you tutored or threatened to confess ?' The answer was 'No' The last question was 'Why do you confess The answer was 'I have committed the offence and hence confessing.' It was after these questions- and answers that a confession covering about six pages and full of details was recorded
It appears that respondent No. 1 had been in judicial custody for two days before her confession was recorded. She had, therefore, sufficient time to make up her mind whether to make a confession or not after she was told by the Magistrate that she was not bound to make any confession and if she made one, it would be used as evidence against her. Save and except the bald allegation of respondent No. 1, there is absolutely no evidence on record to show that the confession was extorted from her. Looking to the facts of the case, we are of the view that sufficient time had been given to her to reflect and to free her mind from any possible influence of the police. The confession is a long narrative of facts and contains a wealth of details. The police could not make any effort to tutor such a detailed confession and it is unthinkable that such a tutored confession would be narrated by Suruji after two days of any possible attempt made to tutor her.
The learned Sessions Judge relying on a decision of the Supreme Court reported in : 1957CriLJ1014 , (Swaran Singh v. State of Punjab) observed that at least 24 hours time should have been allowed for cool reflection. The evidence on record shows that respondent No. 1 had been allowed two days time for reflection after she was first produced before the Magistrate on 30-4-1971 and that when she was again produced on 3-5-1971, the Magistrate also allowed half an hour time for cool reflection in the Court room before actual recording of the confession. this Court had occasion to say before and would repeat here once again that in : 1957CriLJ1014 their Lordships did not lay down an absolute rule that unless 24 hours time was given the confession should be held to be not voluntary. In (1974) 40 Cut LT 313 :1975 Cri LJ 564, (Naidu Budhia v. State of Orissa) this Court observed:
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 that in ordinary circumstances an interval of 24 hours time may be regarded as reasonable time for reflection is not to be taken as an absolute rule and as laying down that, whatever the circumstances, a confession recorded without allowing time for reflection is to be rejected as a confession that is not voluntary.
We may also mention that in : 1959CriLJ90 , (Ram Parkash v. State of Punjab) the accused on whose confessional statement relianee was placed and whose confession was held to be voluntary had been given only an hour's time for reflection. In the facts and circumstances of the instant case we hold that the confession was made voluntarily. The grounds taken by the learned Sessions Judge for holding that the confession was not voluntarily made are untenable.
10. It is true that the confession was not recorded in the language in which it was made, but in English. In our opinion, the irregularity, if any, cannot be considered to be material in view of the evidence of the Magistrate that the confession was made voluntarily and correctly recorded Under Section 364, Criminal P.C. a Magistrate is authorised to ('record the confession in English, if necessary. We do not see how the respondent |o, 1 has been (prejudiced in any way by 7ie recording of the confession in English. i c is not her case that the confession was of actually made or that it was not correctly recorded, Her plea as reflected in je cross examination of the Investigating officer (P.W. 18) was that the confession vas made as a result of threat, promise, document and coercion. We hold that is irregularity, if any, in recording the I confession in English is curable under Section 533, Criminal P. C g 11. The next question is whether he confession is true. As it was retracted luring trial, it needs corroborated The aw is well settled as to what amount of reparation is necessary for basing a invocation on a retracted confession. It is A necessary that each and every circumstance mentioned in the confession ..with regard to the participation of the , accused person in the crime must be separately and independently corroborated. ''he circumstantial evidence on the record ' substantially corroborates the confession. According to the confession, the deceased -and the respondent No. t were the only ma tea of the house prior to the occurrence. P.W. 6, the grandmother of the J-ceased testified that when she left the mess carrying food for her husband to #e field, the deceased and the respondent ^o. I were the only inmates of the house. 1 has, respondent No. 1 was the last per-on in whose company the deceased was been alive. She has not offered any examination as to how the deceased died. ' during her examination under Section 342, Criminal P.C. she remained content with . i mere denial. The statement in the confession that the dead body was thrown into the pond is corroborated by the fact of discovery of the dead body from the pond as deposed to by P.Ws. 1'. 5. 7. 11 and 14.
The statement that the dead body was first kept concealed in the granary finds corroboration from the evidence of the ^witnesses about presence of blood on the ^ of paddy in the granary. The Investigating Officer found that the paddy had been soaked with blood and a certain .^portion of the paddy heap had undergone .la depressions. The paddy soaked with blood was seized by him from the granary sunder the seizure list Ext. 14/3 in presence of P.W. 11. The Serologist had detected human blood on the seized paddy. P.Ws. 5, 7. 11 and 14 stated that they found some paddy sticking to the dead body when it was lying near the pond. The doctor (P.W. 20) also stated that at the time of post mortem examination he found some paday particles sticking to the injuries on the dead body. These circumstances clearly establish the truth of the statement made in Ext. 24. The statement of the confessant that she put the dead body in a basket and the other accused carried it to the pond finds corroboration from the evidence of P. Was 8, a neighbour. According to P.W. 8, at about 2.30 or 3 p.m. on the date of occurrence while he was sitting on his verandah, he saw accused Sripati going with a basket towards the pond.
The evidence of P.Ws. 5 and 7 shows that immediately after the extra-judicial confession was made by respondent No. 1, they found out the basket (M. O. I) lying in the Bari of P.W. 4 with blood stains and some paddy sticking to the same. The Investigating Officer (P.W. 18) seized the basket on 28-4-1971' under the seizure list - Ext 7/3 but no blood could be detected on it as the chemical examination took place about eight months after the seizure. It is in evidence that the door and tibe wall of the granary were stained with blood and the floor of the kitchen where the occurrence took place showed signs of mud-wash. Another incriminating circumstances appearing against respondent No. 1 is that her wearing saree (M. O. Ill) was found to be stained with blood and on serological test, human blood has been detected on it (vide Ext. 23). P.Ws. 4, 5, 6 and 7 have clearly slated that they found blood stains on the saree (M, O. Ill) worn by respondent No. 1. There is nothing to disbelieve their evidence. During her examination under Section 342, Criminal P.C. respondent No. 1 was asked how her wearing saree was stained with blood and semen. The answer was 'I cannot say.' Thus, the circumstantial evidence as referred to above lends ample corroboration to the judicial confession. We, accordingly, hold that the confession was both true and voluntary.
12. The extra-judicial confession made by respondent No. 1 on the date of occurrence is proved by the evidence of P.Ws. 5, 7 and 14. P.Ws. 5 and 7 are respectable witnesses being the local Sar-panch and Naib Sarpanch respectively. P.W. 14 is a teacher and an old man of 66 years. There was no suggestion far less any proof that these witnesses had any axe to grind against respondent No. 1. The extra judicial confession made before these witnesses tallies with the judicial confession in material particulars. There is nothing to show that the extra judicial confession was made as a result of any outside pressure having been brought to bear upon respondent No. 1'. We hold that the retracted confessions coupled with the circumstantial evidence clearly establish her guilt.
13. Respondent No. 2 Sripati IB the father-in-law of Rama Ojha a neighbour of P.W. 4, H& was living with his son-in-law on the date of occurrence. The evidence of P.Ws. 5, 7 and 14 shows that when they confronted the confession of Suruji to respondent No. 2 he offered a sum of Rs. 100/- to P, W. 5 as hush money. When P.W. 5 questioned him as to why he was offering Rs. 100/-, he confessed that he had committed the murder of Bimbadhar along with his co-accused Suruji. P.Ws. 7 and 14 have categorically stated that respondent No. 2 admitted before them that he along with Suruii had killed the deceased as he saw the act of co-habitation. He also admitted before them that he along with Suruji had concealed the dead body in the granary and subsequently removed it to the pond of Rama Ojha. The evidence of these witnesses remained unshaken by cross-examination. There is nothing to a how that any threat, undue influence or coercion was brought to bear upon the respondent No. 2. The confessional statement is corroborated by the circumstantial evidence as discussed above. It is in the evidence of P.W. 8 that he had seen respondent No. 2 carrying a basket and as has been stated earlier the basket was found to be stained' with blood. The fact that this respondent offered hush money to P.W. 5 shows his guilty mind. The above evidence is sufficient to establish the guilt of this respondent He has also been implicated by respondent No. 1 in her judicial and extra-judicial confessions which can be taken into consideration under Section 30 of the Evidence Act.
14. The evidence on record clearly shows that both the respondents acted in concert in committing the murder of the deceased and throwing his dead' body into the pond. Obviously their intention was to cause disappearance of the evidence of murder. We have scrutinized the evidence carefully bearing in mind the principles governing appeals against acquittals and have come to the conclusion that the offences under Sections 302/34 and 201/34, I. P. C have been well established. The learned Sessions Judge made no real effort to assess the credibility of the evidence and wrongly acquisition the accused persons resulting in &' carriage of justice.
15. In the result, the appeal is lowed and the order of acquittal f' aside. Both the respondents are coil ed under Section 302/34, I, P. sentenced to undergo imprisonment be life, They are also convicted under of Won 301/34, I.P.C. and sentenced to R. for two years each. The sentence she run concurrently.
B.K. Ray, J.
16. I agree.