1. The appellant has been sentenced to death for the murder of Papanna on the night of 6th November, 1940. As the learned Sessions Judge observes, the case against the appellant depends substantially on his own confessional statement, corroborated by the recovery of incriminating articles as a result of that statement. The main question is whether this statement was rightly admitted and made the basis of his conviction, having regard to the provisions of Sections 24 and 27 of the Indian Evidence Act.
2. Papanna was murdered when he was asleep at night and no one saw it being done. The complaint mentioned seven suspects, including the appellant and his co-accused, but this was evidently mere guess-work. The Sub-Inspector arrived on the 7th and on the 8th he secured the evidence of P.W. 7 that on the night of the murder as he was coming home from the fields he had seen the two accused sitting on the sluice of the tank (some distance from the place of the murder) and had spoken to them and that the appellant had an axe, while the second accused had a spear. The witness saw nothing suspicious in their appearance or conduct. Apparently as a result of this information, the Sub-Inspector (who appears to have taken no action on the vague suspicions in the complaint) deputed constables to arrest the two accused. Those constables are not witnesses. On the morning of the 9th, when the Sub-Inspector was at the chavadi with the village munsif and others, the appellant was produced by the constables and was formally arrested and questioned by the Sub-Inspector. In response to these questions he is alleged to have at once confessed that he and the second accused had murdered Papanna and that he had thrown his axe into the tank and had hidden his blood-stained clothes in a pot in his house. He then produced the blood-stained clothes from : their hiding place and the axe from the water of the tank. As was to be expected, the weapon bore no certifiable trace of blood, but the clothes were stained with human blood.
3. After these recoveries, the constables produced the second accused (who has been given the benefit of the doubt by the lower Court). He was also arrested and questioned and stated that he had hidden his spear in the fodder in his manger. This was produced and was found to be blood stained, but the Imperial Serelogist could not say whether or not it was stained with human blood.
4. On the 9th, the Sub-Inspector also secured the evidence of P. W. 8, who has deposed that on the night of the crime he met the two accused at about mid-night, coming away from the fields, armed with an axe and a spear. He said nothing about what he had seen till the police examined him.
5. The Sub-Inspector in cross-examination denied that he had told either of the accused that he would be taken as an approver, denied that he told the second accused that the appellant had confessed and repudiated a suggestion that the accused were arrested on the 6th along with others and compelled to confess. Before the committing Magistrate, the appellant stated that his nose bled and that his clothes thus became stained, but he denied having produced those clothes from his house. He also asserted that he had been detained since the 7th afternoon and had been beaten by the police in order to make him confess, but that he had made no statement. The second accused also denied having produced the spear and asserted that he had been beaten. In the Sessions Court the appellant added that P. Ws. 7 and 8 were false witnesses and that he never had the axe.
6. On this evidence it is contended that there is a serious doubt as to the voluntary nature of the appellant's confessional statement, which the prosecution ought to have removed by positive evidence; and that in any case this confession is retracted and is substantially uncorroborated. The argument is that something must have preceded the confessions and that the prosecution have not discharged the duty laid upon them of proving that the confession was not induced in an objectionable manner. It seems to me that this argument overlooks the nature of the appellant's own statements. He has not alleged that he was induced to confess by violence or promises. His case was that though he was beaten he did not confess at all and did not produce the incriminating articles. It is true that the Sub-Inspector was asked questions which seem to suggest that the confessions were improperly induced, but these suggestions are difficult to reconcile with the appellant's own denial that he made the statements and produced the articles. Two witnesses have corroborated the police evidence that the confessions were voluntary. There is no evidence to support the assertions that the accused were arrested on the 7th, nor does this seem likely. There is no evidence that the accused were beaten. There can be no doubt that the appellant did produce the blood-stained clothes. There is only his own assertion as to the way in which they came to be stained with blood and this explanation is inconsistent with the fact that they were hidden. There is no explanation of the circumstance that he produced the battle-axe from the water of the lank. The appellant having contented himself with a complete denial of the incriminating statements and conduct, I do not think that it was incumbent on the prosecution to let in further evidence of the absence of threats, promises or inducements leading to the confessions.
7. In my opinion the appellant has been rightly convicted and sentenced. But as my learned brother has taken a different view of the evidence, the case will have to go before a third Judge.
8. I regret that I have felt compelled to differ. The appellant has been convicted of the offence of murder and sentenced to death by the Sessions Judge of Kurnool. Two persons were charged and tried for the offence; the appellant who was the first accused was convicted and the second accused was acquitted.
9. The appellant is said to have murdered one Papanna of Ulindakonda, Kurnool District on the night of 6th November, 1940 when he was sleeping alone in his field which is about 1 1/2 miles from the village. The deceased went to the field to watch over the harvested korra crop and while asleep, he was undoubtedly killed by some one. The question is 'was it the appellant that did so'.
10. Enmity between the appellant and the deceased was alleged; the Judge finds that no enmity has been proved and the learned Public Prosecutor has not challenged this finding before us.
11. The conviction rests solely on the retracted confession of the appellant which it is said is corroborated by the evidence of two witnesses, P. W. 7 and P.W. 8 and by the discovery of some property as the result of the confession.
12. P.W. 3, the son of the deceased, discovered his father dead after mid-night and informed his mother P. W. 4. Then a complaint Ex. B was made to the village munsif at about 2 A.M.; the report of the village munsif was despatched at about 5 A.M. and reached the Kurnool Taluk Police Station at 10-30 A.M. The Sub-Inspector reached the village at 2-30 P.M. the same day. He got some information from P.W. 7 on the 8th and deputed his constables to fetch the two accused. On the 9th he examined P. W. 8 and on the same day, the appellant was brought before the Sub-Inspector and when questioned in the presence of P. W. 9 and P.W. 10, the appellant is said to have straightaway confessed his crime. The confessional statement Ex. D was written by P.W. 9. The second accused was also brought before the Sub-Inspector on the same day; in fact, the constables had been asked on the 8th to secure the second accused also. When the second accused appeared he was questioned by the Sub-Inspector and he is also said to have at once confessed and given a statement Ex. E. Ex. D was recorded at 9 A.M. and Ex. E at 12 noon.
13. Exhibit D runs as follows:
At the instigation of Obigadu, son of Boya Thimmappa, Hanumanthagadu, son of Boya Chinna Mari Yankata and I cut and killed the deceased Boya Ullam Papanna four days ago now, on the night of Wednesday, while he was sleeping near the korra sheaves in the field. I cut and killed him with the battle axe while, Hanumanthagadu cut and killed him with the spear. I threw away my battle axe in the waters of the tank (or lake) at the terminal (last) sluice, on my return trip. It is blood-stained. The white angi and the white dhoti which I had then worn were stained with blood. I have concealed that dhoti and angi in an empty mud pot, in my house in which water is boiled. I shall get them and deliver to you.
After recording Ex. D a search was made of the appellant's house and the appellant is said to have produced from a pot inside the house a white angi, a (coat) and a white dhoti (cloth) ; these were said to contain blood marks. Then they proceeded to the tank mentioned in Ex. D; the appellant is said to have produced the battle axe from underneath the water. This was at 11 A.M. (D. 2). After the searches and recovery of the articles evidenced by Ex. D. 1 and Ex. D. 2, the party returned to the chavadi and all of them remained there till 12 noon when the second accused was produced. When questioned he gave the statement Ex. E which runs as follows:
At the instigation of Boya Obigadu, Boya Chinna Papigadu and I together, cut and killed four days ago now, on the night of Wednesday. I cut and killed with my screw-spear and Chinna Papigadu cut and killed with a battle axe. (I have concealed my spear amidst (fodder) rubbish in the manger, inside my house. It is blood-stained. I shall produce it). Chinna Papigadu threw away his battle axe that night, on our return trip in the waters, of the pond (tank or lake).
After recording Ex. E, a search was made for the spear, the second accused produced a spear from his house and Ex. E. 1 was recorded at 1 P. M., evidencing this search. Then both the first and second accused were charged with the offence of murdering Papanna. Before the Committing Court, both the accused retracted their confessions. The appellant said that he had no motive to kill the deceased, that the police beat him severely and asked him to confess. He denied that the axe was his. As regards the blood-stained cloths, he said that owing to excessive heat, his nose had bled and the cloths had become blood-stained in consequence. At the trial in the Sessions Court, the accused adhered to the statements which they gave in the Committing Court. The Judge acquitted the second accused on the ground that the admissible portion of Ex. E did not amount to a confession. As regards the appellant he held that the confession contained in Ex. D was voluntary and that though it is a retracted confession, it is corroborated by the recovery of M. Os. 9, 10 and 11 and by the evidence of P. Ws. 7 and 8. The appellant's explanation for blood stains on M. Os. 9 and 10 was rejected on the ground that it was inconsistent with Ex. D. The Judge then referred to the evidence of P.W. 7 and P.W. 8 that the appellant was seen in the vicinity of the field where the deceased met his death on the night of the 6th and that the first accused had been armed with a battle axe. On this evidence he convicted the appellant of the offence of murder of Papanna and sentenced him to death.
14. It is urged in appeal that it is unsafe to convict a person on the basis of a retracted confession, that in this case there was no motive proved for the appellant to kill the deceased, that P.W. 7 himself stated that there was nothing unusual in villagers going about with a battle axe when going in nights to watch their fields, that even if his evidence is accepted as true, there is nothing suspicious about the appellant's conduct on the previous night, that the evidence of P.W. 7 and P.W. 8 should not be accepted on the ground that their statements were available only on the 8th and 9th, that is, two and three days after the occurrence. It is also urged that there are enough indications in the evidence to show that the confession was not voluntary.
15. Taking the evidence of P. W. 7 and P.W. 8 first, the evidence of P. W. 8 was available only on the 9th, that is, on the day of the confession. Three days had elapsed and it is unsafe to rely upon the evidence which is given so late. - The same remarks apply to P. W. 7 whose statement was available only on the 8th. Two days had elapsed. Neither of them had stated to any one what they had seen on the night of the 6th even though they knew that the deceased was murdered on the night of the 6th. Their conduct is inconsistent with their having seen the appellant armed with a battle axe on the night of the 6th anywhere near the scene of occurrence. I think it is unsafe to accept the evidence of P. W. 7 or P. W. 8.
16. Before I go to Ex. D, we must see what happened on the 7th and 8th. P. W. 11, the Sub-Inspector of Police, Kurnool Taluk Station came to the village on the 7th at about 2-53 P. M. In Ex. B, the wife of the deceased gave the names of seven persons as suspects. Among these are accused 1 and 2. After P. W. 11 arrived in the village, he did not take any steps to verify if these men were in the village nor even to visit the house of any of the seven persons mentioned in Ex. B. The village munsif who was examined as P. W. 9 was asked about it and he said:
Till the arrival of the Sub-Inspector I did not take any steps to verify if these seven men were in the village. The Sub-Inspector was in the village on the 7th and 8th. Neither he nor I visited the houses of any of the seven men named in Ex. B on the 7th or 8th.
The Public Prosecutor conceded that as the Sub-Inspector was not asked in chief examination to deny what the village munsif stated, we must take it that the statement of the village munsif is true. It is said by the learned Public Prosecutor that merely on the ground that the names of these persons were given as suspects in Ex. B, their houses could not be searched. True, but that is no explanation why, as the village munsif says, steps were not taken to see whether these people were even in the village or why their houses were not even visited. According to the prosecution, what put the Sub-Inspector of Police ultimately on to the accused 1 and 2 is the statement given by P. W. 7 on the 8th. P. W. 7 stated that he saw accused 1 and 2 on the night of the 6th, the first accused with a battle axe and the second with a spear. It is this information that evidently led the Sub-Inspector of Police to take action against these accused and to depute two constables to fetch them. It is strange that with the information given by P.W. 7 the Sub-Inspector did not think it worth while to search the houses of the first or second accused but contented himself with merely deputing two constables to fetch them. He says:
Till I deputed the constables on the 8th to arrest accused 1 and 2, I did not take any steps to apprehend any of the seven persons mentioned in Ex. B or to search their houses. I did not attempt to search the houses of accused 1 and 2 even after deputing constables on the 8th to get them. I had no reason to believe that accused 1 and 2 would confess. I thought had no sufficient grounds to search their houses though I had decided to arrest them.
This is a curious answer. If he had sufficient grounds to arrest them, it is difficult to understand his statement that he had not sufficient grounds to search their houses. The way in which the accused are said to have confessed the moment they appeared before the Sub-Inspector and what went before lead me to suspect that everything was known to the police and that the whole thing was merely a farce of having a confession first and a search immediately thereafter to bring the case within Section 27 of the Evidence Act. The appellant is first produced at 9 A.M. Immediately he makes a confession, Ex. D. Then the first search is made and that is recorded at 10 o'clock. At 11 o'clock the second search was made which led to the recovery of the battle axe. At 12 noon, the second accused is produced and he confesses immediately. Then the search of his house is made and the search report was prepared at 1 P. M. to show the recovery of the spear in consequence of information contained in Ex. .E. If the prosecution evidence is true, I cannot understand why even after Ex. D in which the second accused was very clearly implicated, his house was not searched. The searches in connection with Ex. D were finished at 11 A.M. Then as P. W. 10 states in cross-examination, the party returned and were simply sitting until 12 noon when the second accused was brought. P. W. 10 says:
When we returned from the tank to the chavadi we did not expect the second accused to be produced. Still we stayed on there although we had. nothing specific to wait for.
There is another point taken by the appellant. It is said that the confession itself is not admissible under Section 24 of the Evidence Act. That section runs thus:
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The rule in England as stated in Taylor on Evidence is this (12th edition, 872):
Before any confession can be received in evidence in a criminal case, it must be shown to have been voluntarily made....The rule which excludes confessions not shown to have been made voluntarily is a rule of policy. It is not that the law presumes such statements to be untrue, but that owing to the danger of receiving such evidence, Judges have thought it better to reject it.
In Ibrahim v. The King (1914) A.C. 599 the Judicial Committee observed:
It has long been established as a positive rule of English Criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
In India, however, the matter is put more elaborately in Section 24. One question that arises under Section 24 is whether it is really on the prosecution to prove that the circumstances mentioned in Section 24 do not exist or whether it is upon the accused to prove that the making of the confession was caused by inducement, threat or promise. It is no doubt true that the burden of proving facts which are specially within the knowledge of a person may be thrown upon him but having regard to the well-known principle of criminal jurisprudence recognised in Ibrahim v. The King (1914) A.C. 599 I have no reason to doubt that what the Indian Legislature attempted to enact more elaborately in Section 24 of the Evidence Act is that a Court must be satisfied before admitting a confession that it is free from all taint. The wording of Section 24 is if it appears to the Court to have been caused by inducement, threat etc., a confession is irrelevant. It is not 'if it is proved to have been caused by inducement, threat or promise.' As pointed out in Emperor v. Panchkowri Dutt I.L.R.(1924) Cal. 67 the Indian Legislature has deliberately used the expression 'if the making of the confession appears to the Court' and not 'if it is proved to the satisfaction of the Court.' Therefore, if the Court has any reason to doubt the free and voluntary nature of the confession, then it is for the prosecution to prove that it was made without any of the inducements, threats or promises mentioned in this section. It is not as if there is less need for protection to an accused person in India than in England. Yet in England, the burden lies undoubtedly on the prosecution to prove that the confession was voluntary before it is admitted. I have no reason to think that the standard is less strict in India. As I said before, the Legislature seems to have endeavoured to enact the same rule in a more elaborate manner.
17. It is said that in this case the appellant set up the story that he was beaten by the police and that if it was true, there would have been some marks of violence on the person of the accused. As regards the argument that the accused has not proved that he was beaten, it is as in most of such cases impossible to expect him to be able to prove to the satisfaction of the Court that he was belaboured or that there are any of the infirmative circumstances mentioned in Section 24. Then it is said that what was suggested to the Sub-Inspector during the cross-examination was that some inducements were held out to the appellant in order to induce him to confess and not that he was beaten. P.W. 11 was asked whether he did not tell either of the accused that he would be taken as an approver if he confessed and he was also asked whether it was not true that accused 1 and 2 were arrested even before the 9th and compelled to make a confessional statement. There is enough suggestion in this second sentence that they were compelled and what is mentioned in the accuseds' statement is only an elaboration of what is taken down as compelled in the cross-examination of P.W. 11. There is nothing in the evidence of P. W. 10 to advance the case of the prosecution. There are enough materials in this case to raise a very serious doubt in my mind about the free and voluntary nature of Ex. D. 1 apply therefore the rule enunciated in Emperor v. Panchkowri Dutt I.L.R.(1924) Cal. 67 and hold that it was the duty of the prosecution to have satisfied the Court that none of the circumstances mentioned in Section 24 exist in this case and the evidence falls far short of it. On the other hand, all the circumstances point to the conclusion that very much more should have happened than what is admitted by the prosecution.
18. Lastly there is the fact that the accused retracted the confession and the question is whether it is safe to convict him on the strength of the retracted confession. Necessity of corroboration in a case of this kind, is recognised by all the authorities and was not seriously questioned by the Public Prosecutor. It is said that in this case the corroboration is to be found in the evidence of P.W. 7 and P. W. 8 and in the discovery of M. Os. 9, 10 and 11. It is unnecessary to go into this question fully in the view that I have taken on the other points. But there seems to be some force in the appellant's contention that what was discovered by reason of the information given in Ex. D ought not to be treated as corroboration of the statement made in Ex. D and that even if as P. W. 7 and P. W. 8 say, the first accused was carrying a battle axe which it was very common for every villager to do then, there is nothing suspicious in that act and that again would not be a corroboration of Ex. D.
19. I would reverse the conviction and sentence and direct the appellant to be set at liberty.
20. Before leaving this case, I should say that the question whether Section 27 of the Evidence Act has been altogether abrogated by Section 162 of the Criminal Procedure Code ought to be set at rest by the Central Legislature without leaving the matter in a state of confusion. It is enough to point out that the Lahore High Court by a majority held that it was repealed and the local Legislature interfered in the matter. The Allahabad High Court has also held that Section 162 abrogates Section 27 of the Evidence Act. I am very strongly in favour of this view. Two decisions of the Madras High Court have been brought to my notice in which it has been held that Section 27 still stands in spite of Section 162, Criminal Procedure Code and this view has been taken by the Nagpur and Patna High Courts. It is obviously very unsatisfactory to leave the matter in this state. Advantage might be taken of this opportunity to examine the whole law of confessions and amend Section 24 so as to make it clear that before a confession is allowed to go in, the prosecution must prove that it is voluntary.
21. [On the appeal being posted before a third Judge, the Court delivered the following Judgment:]
22. The appellant was convicted of an offence punishable under Section 302, Indian Penal Code, by the Sessions Judge of Kurnool and sentenced to death. On a difference of opinion between Wadsworth and Somayya, JJ., the appeal has been posted before me.
23. The facts of the case have been stated in the judgments of my learned brothers and the main question that I have been asked by the learned advocate for the appellant to consider is whether the confession made by the appellant was made voluntarily. On this point Wadsworth, J., held that it was and Somayya, J., that it was not.
24. The wife of the deceased person had no information as to who had committed the murder, but because of past enmity she suspected seven persons, and amongst them were the two persons who were accused in the lower Court. No definite material was forthcoming for a day and a half or so that was sufficient to warrant the arrest of either of them; but on the 8th of November, the offence having taken place on the night of the 6th, P.W. 7 told the Sub-Inspector that he had seen the two accused together on the night of offence, the appellant armed with a battle axe and the other accused with a spear. As the deceased man seemed to have had his head battered in with blows from an axe and to have been stabbed with a spear, the Sub-Inspector sent two constables on the night of the 7th to arrest the accused; and they were brought to the Sub-Inspector the following morning. He then had with him the village Magistrate and the President of the Panchayat Board to assist him in his investigation. The Sub-Inspector immediately questioned the appellant, who told him that he and the other accused had committed this offence and that he had thrown the axe with which the offence was committed into a certain tank and that the blood-stained clothes which he was wearing on the night of the offence had been placed in a pot inside his house. The learned advocate for the appellant contends that it was not sufficient for the prosecution to let in evidence of the questions put and the answers of the appellant; but that they were bound to show by all evidence possible that the confession was made in circumstances from which it could be conclusively deduced that the statement was voluntary. Particular reliance has been placed on a decision of the Privy Council reported in. Ibrahim v. The King (1914) A.C. 599 in which it has been said:
It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
Our own Evidence Act does not put the matter in the same way. Section 21 makes admissions relevant and says that they may be proved as against the person who makes them. Section 24 deals with an admission which amounts to a confession and adds a proviso to the ordinary rule that an admission can be proved against the person who makes it by laying down that:
A confession made by an accused person is irrelevant if the making of the confession appears to the Court to have been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient to give the accused person grounds... for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature....
This wording suggests that unless it appears to a Court that an inducement, threat, or promise was held out by a person in authority, a confession would be relevant under Section 21 of the Indian Evidence Act without any formal proof of the voluntary nature of the statement.
25. It has certainly not been the practice of the Courts of this Presidency to require from the prosecution formal evidence that the statement was voluntary. There is always cross-examination on this point and the accused is always questioned by the Court about his confession. It is customary for the Court to consider the suggestions made in cross-examination and the statement of the accused and for the Court then to decide whether there is anything in those suggestions or in the evidence which would lead it to suspect that the confession was not voluntary. However, this discussion whether formal proof by the prosecution of the voluntary nature of the confession is necessary is an academic one, because P. W. 9 has set out the circumstances under which the accused was questioned; he says that:
A policeman brought accused 1 to the Sub-Inspector about 9 A.M. We had gathered there casually.... After arresting the first accused, the Sub-Inspector asked him 'what do you know of the death of Vullam Papanna?'
The accused's confession seems to have been an answer to that question. This is very much what happened in the Privy Council case above referred to (Ibrahim v. The King (1914) A. C. 599 where the officer who was the superior of the soldier charged, said to him 'why have you done such a senseless act?' to which the accused replied:
Some three or four days he has been abusing me. Without a doubt I killed him.
That statement was held to be a voluntary one; and I see no reason for holding that the statement in the present case was not made voluntarily. It is probably true that the Sub-Inspector preferred obtaining information from the accused rather than by searching his house; but that does not in any way cast any doubt on the voluntary nature of the confession made.
26. It is frequently assumed that a person would not make a confession of his guilt which would be prejudicial to his interest unless some pressure were exerted on him. I do not believe this to be the case. A man who has committed a grave crime--unless he is a hardened offender--has an overwhelming desire to unburden himself and share with somebody his terrible secret. If he thinks of the consequences of his conviction, fear of them will act in restraint of his natural impulse to confess. At the moment of his arrest, the ordinary accused feels that the game is up and that it is futile to attempt to try to conceal his guilt any longer. Even in cases in which no confession of the accused is tendered in evidence, because it does not lead to any discovery, a perusal of the records frequently shows that some sort of a confessional statement is made. There is nothing in the evidence in this case which suggests that the appellant was detained and questioned for a considerable time before he made his statement. The evidence is in fact to the contrary.
27. That voluntary confessions made to a police officer are admissible if they satisfy the conditions laid down in Section 27 of the Evidence Act--despite the provisions of Section 162, Criminal Procedure Code--has been held consistently by this Court over a long course of years. If the statement made by the appellant was voluntary--as I hold it was--there can be little doubt of the truth of his confession. As a result of it the axe was found in a tank, and it is unlikely that it would have been found had it not been for the confession. Further, certain clothes stained with human blood were found in the house of the appellant, which he said in his confession were worn by him at the time of the murder. The evidence of P.Ws. 7 and 8 is also corroborative of the confessional statement; for they saw the two accused persons on the night of offence not far from the scene of offence, armed with instruments similar to those with which the appellant says they committed the murder. The medical evidence shows that such weapons could have caused all the injuries found on the body of the deceased.
28. P. Ws. 7 and 8 are unconnected either with the appellant or with the deceased; and it is difficult to believe that they would be willing to say that they saw the accused armed with an axe and a spear respectively near the scene of offence on the night when the offence was committed unless they had actually seen them. If it were customary for witnesses to come forward at the very first opportunity and tell the police that they had seen something connected with the murder, then the value of the evidence of P. Ws. 7 and 8 would be seriously diminished by their failure to inform the police at the earliest opportunity. P.W. 7 waited a day or so before he told the Sub-Inspector what he knew and then probably spoke only because he was questioned, whilst P. W. 8 probably did not come forward with information until after the appellant had made his confession. Unfortunately, witnesses are almost always unwilling to speak and thereby risk the enmity of the accused and his friends and put themselves to great inconvenience unless they are personally interested. There is nothing improbable in this evidence of these witnesses. They are absolutely disinterested and so there is no reason why their evidence should not be accepted.
29. I therefore agree with Wadsworth, J, that the appellant was properly convicted of the offence with which he was charged.
30. A strong plea has been made for the modification of the sentence; but I do not find any circumstances that extenuate the crime of the appellant. The murder was apparently a deliberate one, committed in cold blood while the deceased was lying in his field. The side of his head was crushed by repeated blows with a weapon such as the axe used by the appellant, which shows that these blows must have been delivered while the deceased was lying on the ground. The conviction and sentence are therefore confirmed and the appeal dismissed.