A.N. Ray, J.
1. This is an appeal by special leave from the judgment dated 16 July, 1970, of the High Court at Patna accepting the reference under Section 374 of the Criminal Procedure Code and confirming the sentence of death.
2. The appellant was convicted under Section 302 of the Indian Penal Code for having committed the murder of Anange Nayak, a boy aged about 10 years and his younger brother Gourange Nayak, aged about 7 years.
3. Anange & Gourange were sons of Mossomat Kamila Nayak, widow of Shashi Nayak. The prosecution case was this. Both the brothers disappeared from the house of Kamila on 25 July, 1967 which was a Thrusday. Kamila was a day labourer. When she returned in the evening she did not find her sons in the house. She searched for them in vain. On the following day (Friday) at mid-night she was informed by some villagers named Kartik Patar, Shashidhar Nayak and Chandra that the appellant had staled before them that he had killed the two children. Kamila thereafter went to the house of the appellant in the company of those villagers and enquired from him whether it was a fact that he had killed the two children The appellant admitted that it was a fact that he had killed the two children. The appellant took out a Kulhari from his house and said that that was the weapon with which he had killed the children. The appellant took Kamila and the other villagers to the neighbouring jungle and showed them the dead bodies of the children. Kamila identified the dead bodies as those of her two sons. On Saturday morning a cow herd boy named Rakhal came to the house of Kamila and told her that at mid-day on Thursday while he was grazing the buffaloes in Bana Dungri Jungle he saw the appellant taking the two children to the jungle with a tangi in his hand Thereafter, Kamila proceeded to Musabani Police Outpost along with Ishwar Chandra Nayak and the appellant and two other persons. Kamila gave the first information report at 5 p m. on Saturday, 27 July, 1967. The first information report was recorded by the Assistant Sub Inspector, Jhalakdeo Singh. The appellant was then put in custody.
4. The Additional Sessions Judge said that the relevant circumstances available for the purpose of decision were that a day before the occurrence the appellant quarrelled with Kamila and threatened to kill her boys. On Thursday at about noon the cowherd boy Rakhal saw the appellant going to Bana Dungri forest taking the two boys Anango and Gourango and carrying a tangi. The dead bodies of these two boys were found on Saturday in the Bana Dungri forest. According to the post-mortem report and the testimony of the Medical Officer the two boys were killed by a sharp-cutting weapon like tangi. The Additional Sessions Judge held that the circumstances led to the only conclusion that the appellant must have committed the murder of the two boys and the circumstances that on Thursday at about noon the appellant was seen taking the two boys to the Bana Dungri forest pointed to that conclusion.
5. The High Court said that the Additional Sessions Judge placed no reliance upon the evidence of extra judicial confession. The extra judicial confession is contained in the testimony of three prosecution witnesses. They are Kamila, the mother ; Kartik Patar a cultivator and Shashidhar Nayak a cultivator.
6. Kamila's evidence was that after the information from the villagers on Friday mid-night when she went with Chandra, Kanik Paiar, Kundru and Shashidhai to the house of the appellant the latter took cut a kulhari a sharp weapon from his house in their presence and showed it and said that he had killed the children with that kulnaii. Kamila further said that on Wednesday, a day before the occurrence the appellant quarrelled with her for land and told her that he would kill her and her children.
7. Kartik Patar, the cultivator said that he Chandra, Shashidhar met the appellant on Friday night. They asked the appellant as to where the children Anauge. and Gourango were The appellant said that he had killed the two children and now he would kill their mother Thereafter, the appellant took out a sharp weapon called kulhari and said that he had killed the children with it. Kartik Patar further said that later Kamila came there and the appellant took out and brought the kulhari and said that he had killed Anango and Gourango with it and he would kill her also.
8. Shashidhar Nayak said that on Friday night he Chandra, Kartik and Kundru went to the house of the appellant and asked him where Anango and Gourango were. The appellant said that he had cut them and their bodies were lying in the Bana Dungri jungle. The appellant of his own accord took out the kulhari from his house and he said that he had cut the children with that kulhari. After a while Anango's mother came there. The appellant said the same thing to her and showed the kulhari to her saying that he had killed the children with it.
9. The additional Sessions Judge did not place reliance on extra judicial confession because such a statement was not to be found in the first information report. The High Court, however, said that both the witnesses Kartik Patar and Shashidhar Nayak said that the appellant had stated before them that he had cut the two children and taken out the tangi or kulhari a sharp weapon and said tha he had cut the children with that very weapon. The High Court was satisfied that the two witnesses Kartik and Shashidhar truly deposed about the voluntary confession made by the appellant before them to the effect that he had cut the two children and he had used the tangi for that purpose.
10. The High Court said that there were two confessions by the appellant. The first was not made in the presence of Kamila and that explains why Kamila made no mention about it in her first information report. The High Court did not place reliance on the second extra judicial confession by the appellant to the mother Kamila. The High Court found that after the appellant had confessed in the presence of Kartik, Shashidhar and Kundru, Kamila was informed that the appellant was responsible for killing her children That is how she went with the appellant to the police station and stated that the appellant had killed her two children.
11. The Additional Sessions Judge found that the quarrel between the appellant and Kamila on Wednesday that is a day before the occurrence was a strong link in the chain of circumstances. The appellant was the younger brother of Kamila's husband. On Wednesday there was a quarrel between the appellant and Kamila over land. The High Court however held that the motive for the crime attributed to the accused had not been substantiated. The High Court was wrong in eliminating the motive. It is true that if there is substantive evidence of the guilt of person's movie may not be an important aspect. But, in the present case, the motive is established.
12. It is true that there was no eye-witnesses to the murder but an important piece of evidence is that of the cowherd, boy. He said that he had seen the appellant on Thursday noon going with the two children and with a tangi in his hand. Counsel on behalf of the appellant said that Rakhal Rabidas. the cowherd boy was a child witness and there was nothing on record to show that the court was satisfied that the witness understood the duly of speaking the truth. Rakh il Rab.das the cowherd boy was aged about 8 or 10 years. He gave evidence on solemn affirmation. It therefore plain that the Additional Sessions Judge was aware of the age of the witness at the time of putting him on oath If this point had been specifically taken in the High Court perhaps the entire record of the case would have been before the court to show that the court satisfied itself about the understanding arid capacity of the witness to give evidence on oath. The evidence of Rakhal Rabidas that he had seen the appellant on Thursday noon with a tangi in his hand accompanied by the two children was not at all challenged in cross-examination.
13. The evidence of Rakhal Rabidas establishes two important links in the chain of circumstances. First, that on Thursday the appellant was seen going with the two children and a tangi in his hand. Second, that Rakhal heard on Thursday that Kamila was searching for the boys and on Saturday he told Kamila what he had seen on Thursday afternoon.
14. The recovery of the sharp instrument called kulhari or tangi by the Assistant Sub-Inspector of Police from the appellant is another important piece of evidence. Counsel on behalf of the appellant put in the forefront the contention that tangi was not sent for chemical examination. It appears from the seizure list that the tangi when seized was blood s'ained. Ishwar Chandra Nayak, Ghatwal went to the police station with Kamila. He said that the appellant also went with the witness and Kamila to the police station. Ishwar Chandra Nayak further said that the appellant had given a blood stained tangi to the Sub-Inspector of Police at the police station in his presence. Counsel on behalf of the appellant said that Lalan Sharma and Mritunjai Prasad Dutt the two witnesses to the seizure list when the blood stained tangi was seized from the appellant were not produced as witnesses. Ishwar Chandra Nayak said that Lalan Sharma had left the village and it was not known where he had gone.
15. The gist of evidence about the tangi is this. The appellant was seen on Thursday afternoon with the tangi and the two children. The appellant showed the tangi to the witnesses as also Kamila. The appellant said that he had cut the children with the tangi. The appellant went to the police station along with the tangi. The tangi was blood stained The circumstances are all consistent with the connection of the tangi with the murder. These circumstances are conclusive of the guilt of the appellant and exclude any other hypothesis.
16. Counsel for the appellant submitted that extra judicial confession ought to have been discarded in the present case. The extra judicial confession of the appellant to the witnesses Kartik Patar and Shashidhar Navak has been believed by the High Court. Before the court will act on extra judicial confession the circumstances under which the confession is made, the manner in which it is made, the persons to whom it is made will be considered along with two rules of caution. First, whether the evidence of confession is reliable and secondly whether it finds corroboration. The High Court believed the evidence as to confession and found it free from infirmity. The extra judicial confession is corroborated by the evidence of the cowherd boy Rakhal Rabidas that the appellant had a tangi in his hand and further that the appellant accompanied by Karnila went to the forest and showed the dead bodies and the appellant went with the mother Kamila to the police station and produced the blood stained tangi.
17. The High Court rightly accepted the reference and confirmed the death sentence.
18. The appeal therefore fails and is dismissed.