K.C. Sen, J.
1. This appeal is at the instance of Subodh Kumar Dhar Roy, Nityananda Sarma and Ashutosh Chandra. They were placed on dial before the learned Sessions Judge of Nadia with the aid of a Jury under Section 302/34 of the Indian Penal Code. The gentlemen of the Jury returned a unanimous verdict of guilty against all the three appellants. The learned Sessions Judge agreeing with and accepting the verdict of the Jury convicted the accused under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life by his order dated 6th February, 1961.
2. The present appeal has been preferred against the said order of conviction and sentence. Before dealing with the points of law it is first of all necessary to set out the prosecution case in brief. The victim Bimal Kanti Das, son of P. W. 1. Rajendralal Das lived with his parents and other family members at the village Gouripur Chuadanga within the police station Chakdah. His father is a practising Homeopathic Doctor. He lives in a Bhagirathi Silpa Asram where his dispensary is also located. In one of the dispensary rooms, Bimal used to sleep and prosecute his studies, being student of Class IX of Purbachal Bidyapith at Chakdah. The appellant Subodh was a fellow student and the other accused persons ac-cording to the prosecution were his intimate friends. Of all the accused persons Asbutosh was a close neighbour and he happened to sleep in the same room with Bimal from time to time. The accused Nitai is an inhabitant of the village Fanstala.
3. The genesis of the trouble according to the prosecution was that P. W. 8 Minu Rani, the sister of Bimal was taking fancy of the accused Ashutosh. Taking advantage of his intimacy with Bimal he used to cut jokes with her from time to time. On this being detected, Bimal took exception to such a conduct on the part of Ashutosh. Bimal also reported the said matter to his parents with the result that his father P. W. 1 Bajendralal Das also asked Ashu not to come to his house.
4. As he was thus taken to task by Bimal and by his fatther, Ashutosh entered into a conspiracy with Subodh and Nitai for removing Bimal from the obstacle put to him in the matter of his love over-ture to Minu Rani. Then came the fateful day on the 30th January 1960 corresponding to 16th Magh 1366 B. S. In the afternoon of this day Bimal and his brother (P. W. 7 Nirmal Kumar Das) were in their house. At that time Subodh went there and called Bimal with a request to accompany him. At that time his brother Nirmal supplied him with a lungi and a shirt and a ganji. Thereafter, Subodh placed him on the rod of the bicycle and went away towards the village Sahispur. Bimal did not return thereafter and his whereabouts could not be traced. He was however seen by different persons that afternoon on Sahispur sugarcane farm at the village Bistupur and near the Chuadanga Bazar in the evening of the 16th Magh 1366 B. S. When the parents found that Bimal was absenting himself from the house they became very anxious. On the following day the inmates of the house searched for him but without any result. What happened next was that on the 31st January 1960 P. W. 1 Rajendra came in the evening to the tea-stall of P, W. 15, Gopinath in the Chuadanga Bazar and ha made a statement to the effect as to the missing of his sou in presence of various witnesses. No trace of Bimal could also be found on the 31st January 1960. In evening of this day he again went to the tea-stall of P. W. 15 in the said bazar where the other witnesses who were present on the previous day were also present. When P. W. 1 was frantically enquiring about his son, Nemai Chandra Biswas (P. W. 16) and Sudhir Kumar Karmakar (P. W. 17) were going towards the bazar to see the image of goddess Saraswati (this being the Saraswati Puja day). They overheard that some discussions about the missing boy was going on and voluntarily came inside the tea-stall and made a statement to the effect that they saw and found in the evening of the 18th Mash 1366 B. S. Bimal sitting on the culvert and three accused persons sitting under a Bat Tree near the culvert. The three accused persons were sent for and on being questioned, they could not give any satisfactory explanation. On the next day, that is, on 2-2-50 Rajendra Babu (P, W.1) went to the house of Subodh and requested him to divulge the information of Bimal. At that time too he did not give any satisfactory reply. Again on the 2nd February 1960 he went to the house of Subodh and made enquiries about the whereabouts of his son. For the first time, Subodh gave out that he found Bimal in the company of Nitai and Asu in the Bhatpara field where they went to take date juice. Further they informed him that on the very Same day he found Nitai and Asu re-turning in the evening but did not notice Bimal to return. Hearing this P. W. 1 became panicky and forthwith went to the Chakdah Police station and informed the police by a written report (Ext. 1). This was treated as a first information report and P. W. 37 Nani Gopal Dey came to the Chuadanga Bazar by Bus accompanied by P. W. 1 and some constables. The appearance of the Police Officer attracted many people and at that time Subodh was also seen passing by. P. W. 37 the Sub-Inspector Nani Gopal Dey had some talk with him and soon thereafter a party of men followed Subodh who led them to the Bhatpara Mat not for away from Chuadanga Bazar. On reaching there Subodh pointed out a place in the said field where some Masur and Dhane plants were found in a broken condition and marks of violence and of blood were also noticed. From that place Subodh led the party near the Talpukur tank and a place was pointed out by him where some loose earth was noticed. At that time one spade was requisitioned and when it was brought Subodh began to dig out the earth from the said place where newly cut loose earth was placed. He carried on the digging for sometime but after he was exhausted the work of further digging was done by P. W. 5 Durga Mohan Banerjee and P. W. 6 Pran Krishna Nath. They exhumed the dead body and to their astonishment the dead body was identified to be that of Bimal. Thereafter, the normal procedure of inquest and seizure of incriminating articles was completed. The Sub-Inspector sent the dead body to Ranaghat for post-mortem examination and searched for the other two accused Netai and Ashutosh, but they could not be found at home. Although Netai was not found at his place on 2-2-1960 the Sub-Inspector seized one hair-shirt (Ext. VI) from his house which was produced by his mother. Ashutosh's house was also searched. Subodh was then produced in Court on 3-2-1960 and subsequently on 3-2-1962, police arrested Netai at Chakdah railway station. Ashutosh was thereafter arrested on 5-2-1960 at 10'30 p. m. by P. W. 37 Nanigopal, who seized the full shirt (Ext. IV)and the half-pant (Ext. V) from his person at about 1 a. m. on 5.2-1960 in presence of witnesses. He was thereafter forwarded to the Ranaghat Court on the self-same day. In the meantime, the bicycle (Ext. VII) was also seized from the house of Subodh. It will be profitable to mention here that when Netai was forwarded to Court on 4-2-1660 he was remanded to the police custody for that day only and when on the next day, i. e., 5-2-1960 he was produced before the Court he made a confessional statement before the learned Magistrate (P. W. 33) Jitendra Nath Sarkar. Similarly Ashutosh on the next day, that is, on 6-2-1960 made a confessional statement which was recorded by the said learned Magistrate.
5. Thereafter a charge-sheet was submitted before the Magistrate who after enquiry committed the three appallants to Court of Session to stand their trial under Section 302/34 of the Indian Penal Code.
6. As regards the defence, the accused Subodh admitted in his examination under Section 342 of the Code of Criminal Procedure that he was a close friend of Bimal reading in Class IX. He then denied all the allegations against him. He admitted that in the evening of the 18th Magh 1366 B. S. he was called In the tea-stall of P. W. 15 Gopi Nath Mukherjee. He did not however make any statement as to the whereabouts of Bimal as he did not know anything about it. Furthermore, he stated that the accused Netai was not known to him. As regards the discovery of the dead body, his categorical statement is that he was forcibly taken to the place of occurrence in the Bhatpara field and it was not a fact that he had dug out the earth from the ditch for the purpose of dis-covering the dead body of Bimal.
7. Ashutosh denied his connection with Minu Rani Dasi and also that in the evening of 18th Magh he was sent for in the tea-stall of P. W. 15 and was asked as to the whereabouts of Bimal. Further regarding the confession, he pleaded that he was forced to make a statement as tutored by the police and in order to get rid of this torture he made such a statement. He also denied that he absconded but had been to his maternal uncle's house to bring some money.
8. Netai completely denied his friendship with Bimal. He could not say anything when he was called at the tea stall of P. W. 15 as he did not know anything about Bimal. He denied that he either made a voluntary confession or absconded. They further suggested that the deceased Bimal was a naughty boy and he assaulted the son of Krishnapada Saha over which there was a criminal case about 5 or 6 months back before the day of occurrence. He had also an illicit connection with the daughter of one Krishna-gopal and was suspected for theft of date juice from the gardens of different persons.
9. The learned Judge's charge to the Jury was assailed for misdirection and non-direction resulting in failure of justice. We have carefully considered the charge to the Jury which is generally very fair and full. Mr. Mukunda Behari Mallick, the Learned Counsel, appearing for the accused persons, has however pointed out that the exposition of law regarding Section 34 was misleading inasmuch as the learned Judge has not explained the distinction between the common act performed by the accused persons and their common intention to commit an offence. The portion of the charge which according to Mr. Mallick is not according to law is as follows:
To justify the application of Section 34, I. P. C, it is necessary to prove what may be briefly described as a common act and a common intention.
The word 'and' between the expressions 'common act and 'common intention' according to Mr. Mallick shows that he could not make any distinction between the act and the intention of the accused persons. On a perusal of the charge in this regard it appears to us that the learned Judge really meant to say that the common act is a sequel to the common intention, but in the absence of more clear exposition there is just a possibility of the Jury interpreting the direction in the other way to the prejudice of the accused. That being the position, it seems that there is possibility of the verdict being erroneous owing to a misunderstanding of the law as laid down by the Judge. This being the position, we accept the contention of Mr. Mallick that we should in this case in spite of the absence of any misdirection enter into the evidence in terms of the latter part of Section 423 (2) of the Code of Criminal Procedure.
10. Mr. Sanyal, appearing for the State, has with his usual fairness drawn our attention to the fact that in view of the recent Supreme Court decision it was incumbent upon the learned Judge to tell the Jury whether in view of the time at the disposal of the accused persons while in police custody to deliberate whether they should make a confessional statement, I am of opinion that there has been a non-direction in this regard which amounts to misdirection and this gives rise to the question whether we should enter into the evidence of this case or not. For all these reasons we have decided to see for ourselves how far the verdict of the Jury is justified.
11. First of all, it appears to us from Exhibit 8(1) that the accused Nityananda Sharma has made a confessional statement before the learned Magistrate to the following effect:
In the evening of the last Saturday, I, Subodh and Ashu took Bimal to the Chuadanga field on the pretext of taking (date) juice. 1 and Subodh caught Bimal firmly. Ashu cut Bimal's throat with a knife.' From Exhibit 9 it appears that the following confession was made by the accused Ashutosh Chanda.
Between 7-30 and 8 O'clock approximately in the evening of the last Saturday, Subodh and Nitai took Bimal to Bhatpara Chuadanga field on the pretext of taking (date) juice. Netai caught Bimal's throat and mouth and Subodh caught Bimal's hands and feet and I, sitting upon Bimal's chest, cut Bimal's throat with a knife.
12. These confessional statements were, however, retracted at the time of the trial. If this confession is believed by the Court to be true no question of corroboration can arise. There is however no legal bar to convict on voluntary confession if believed to be true, but the rule of prudence requires that whenever possible it should be corroborated by independent evidence. Accordingly, both retracted and unretraeted confessions are admissible. We shall, however, discuss in detail later on whether the confessions made by the accused persons, viz., Netai and Ashutosh have in material particulars been corroborated by the evidence in record which nonetheless is only circumstantial as there is no direct evidence to show that anybody had seen the commission of an offence by three of the accused persons.
13. The question that arises is whether this confession was voluntary. A voluntary and genuine confession is undoubtedly legal and sufficient proof of guilt. In this particular case Mr. Mallick has argued that there cannot be any semblance of voluntariness of this confession as the provisions of Section 164 of the Criminal Procedure Coda and of Section 24 of the Indian Evidence Act have not been followed in their true letters. In deciding as to whether this contention as raised by Mr. Mallick is correct or not reference should be made to the orders passed by the learned Committing Court in respect of the accused persons. It will appear from Exhibit 16, the learned Magistrate's order, sheet that the accused Subodh Kumar Dhar Rai was brought under arrest on 3-2.60. He was said to be confessing but he declined to do so. Accordingly he was remanded to Hazat on 17-2-60. On 4-2-60 the accused Netai was brought before the learned Magistrate under arrest and he was allowed police remand for one day only. On the following day the accused is said to be confessing and his confessional statement was recorded. On the following day, i. e., on 6-2-62 accused Ashutosh Chanda was brought under arrest in this case and he was said to be confessing. His confessional statement was recorded on that date. So it appears that the confessing accused were in police custody for a very short time before they confessed before the learned Magistrate. This being the position, it will appear from the evidence of P. W. 33 Shri Jitendra Nath Sarkar, the learned Magistrate who recorded the confession, that on 5-2-60 the accused Nityananda was produced before him at about 10-30 A. M. for recording his confessional statement. He duly followed the provision of law as enjoined in Section 164 of the Code of Criminal Procedure and gave him due caution and warning. Further, it appears that he gave him more than three hours time for reflection and after reflection the due caution and warning was repeated and he recorded his statement at about 2-30 p. m. Similarly, such a Statement was made with regard to the accused Ashutosh Chandra who confessed before him on 6-2-60. He gave warning to all the confessing accused persons to the effect that they were not bound to make a confession and if he did so it might go against him and it might be used as evidence against him. Accordingly, it appears to us that no threat was administered to the accused persons nor is there any suggestion in the cross-examination of P. W. 37 that these confessing accused persons were put under torture and, therefore, it has got to be considered whether a mere bold assertion on behalf of the accused persons that they were threatened, tutored or that inducement was offered cannot be accepted as true without more. The crux of the whole thing is that the accused persons were in custody for a short period and such a stay in the police custody does not prima facie warrant the conclusion that the ingredients as stated in Section 24 of the Indian Evidence Act were not complied with or that any threat, inducement or tutoring was done in the case of these accused persons. Furthermore it appears that the Magistrate whose duty was to record a confession did so in his judicial capacity and from his statement before the learned Sessions Judge it does not appear that he was not satisfied as to the voluntary nature of the confession.
14. Now the question is as urged by Mr. Mallick whether the time as given to the accused persons for reflection was sufficient for recording a confession as being a voluntary one. In this connection he has referred us to the decision of the Supreme Court reported in : 1957CriLJ1014 , Sarwan Singh Rattan Singh v. State of Punjab. Their Lordships at p. 643 observed that--
The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in Section 24 of the Indian Evidence Act.
Their Lordships further observed in this connection that-
There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely free from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.' (underlined by us (here into)
However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.
On the facts of the case their Lordships were of opinion that in the circumstances of the case it was impossible to accept the view that enough time was given to the accused to think over the matter.
15. What we find from the facts of the case is that the accused in the reported decision namely Sarwan Singh Rattan Singh was arrested on the 25th November and was kept in police custody until 30th November. What happened on the 30th November is still more significant. On this day he was sent to the Magistrate to record his confessional statement. The evidence of the Magistrate shows that the accused was produced before him at about 2:30 P. M., he was given about half an hour to think about the statement which he was going to make and soon after the confessional statement was recorded.
It is true that the Magistrate did not put the accused the questions prescribed by the circular issued by the High Court of Punjab.
16. As regards the circular of the Punjab High Court we are not at all concerned, but it appears that the accused Sarwan Singh was in police custody for more than 5 days and he was just given half an hour's time to reflect as to whether he would make a confession. On these facts their Lordships were pleased to make the above observations. Although their Lordships' opinion is binding on us, yet it appears to us on a perusal of the judgment that their Lordships were pleased to observe as above on the facts as placed before their Lordships. There may be cases where each case must have governed of (sic) its own merits. Accordingly, it appears to us that although it would be reasonable to insist upon accused persons at least 24 hours time to decide yet the facts as presented in this case would clearly give rise to the conclusion that there was no material on record to show that any threat, coercion or inducement was offered by the police to the accused persons before they made their confession during their short stay in the police custody. Furthermore, the Magistrate was also satisfied that three hours' time for deliberation was sufficient for making a voluntary confession in the instant case.
17. Regard being had to this position, we are of the view that the confession as recorded by the Magistrate was voluntary and not as a sequel to any threat, inducement or tutoring. As regards the confession, therefore, the position is that that they cannot however be convicted on their retracted confession unless it has been corroborated in material particulars by independent evidence (sic). In so far as these accused persons are concerned we think that unless their confessional statements, though retracted are corroborated in material particulars by independent evidence no conviction on such a confession should follow.
18. It will appear that the accused Subodh has not made any confession. As against him, although a retracted confession may be taken into consideration this rule is not established that its value against the co-accused is practically nil and cannot form the basis of a conviction without substantial corroboration both as to the crime and the criminal. In this connection, reference may again be made to a Supreme Court decision reported in : 1952CriLJ839 Kasmira Singh v. State of Madhya Pradesh. Their Lordships observed as follows:
The confession of an accused person can only be used against a co-accused to lend assurance to other evidence against an accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from considering and sen whether; if it is believed) a conviction could safely be passed on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though) if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus verify himself in believing what without the aid of the confession he would not be prepared to accept.
19. Having regard to the position in law discussed above, we are of opinion that the confession as made by Ashutosh and Netai will not warrant a conviction against the accused Subodh unless and until it is found that there is an independent evidence worthy of credit for bringing home the guilt to him. If such an evidence is available then in that event the confession of the co-accused may bring in aid to the legal evidence against him as recorded by the learned Judge; otherwise the value of such a confession against the co-accused as we have stated before is nil.
20. We shall in the first instance discuss the question of motive which has been tried to be made out by the prosecution as being the genesis of the offence alleged to have been committed by the three accused persons. Before dealing with the evidence it may be said that clear proof of motive lends additional support to finding of guilt. Motive though not sine qua non for bringing the offence home, is relevant and important on the question of intention. Absence of proof of motive has the effect only that the other evidence bearing on guilt has to be very closely examined. Another point is that in this particular case there is no evidence as to the commission of offence. There is, however, only circumstantial evidence. We have to consider whether the circumstantial evidence as adduced in this case is proximate to the principal fact, viz., the factum of the guilt of the accused persons. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused, Incriminating facts must necessarily be incompatible with the innocence of the accused. Furthermore, there must be a chain of evidence so far complete as not to leave any ground for a conclusion therefrom consistent with the innocence of the accused.
21. Now let us proceed to examine the evidence which has been adduced in this case. It will appear from the evidence of P. W. 1 Rajendralal Das that he speaks of friendship of Bimal with Ashutosh and Subodh of Pararigram. Ashu used to sleep with Bimal. It so happened that taking advantage of his residence in the house of Bimal's father he used to very often cut Jokes with his daughter Minu Rani. On this the deceased Bimal used to chastise him and such a chastisement took place sometime 15 or 20 days ago. Since SO-1-1960 Bimal was untraced and on this date his son Nirraal told him in the evening that Bimal went on a bicycle being carried by Subodh. Thereafter on the following day he went to a tea-shop belonging to P. W. 15 Gopinath and made enquiries about his son. No clue of his son was however obtained on that date. On the following date he went to the tea-stall and discussed the missing of his son from his house. At that time, P. Ws. 16 and 17 Nimal and Sudhir Karmakar respectively, who have been described as child witnesses by the learned Sessions Judge before the Jury came to the shop after hearing their conversation. They gave out that on 13-1-1960, they saw Bimal sitting in the evening on a culvert and others (Ashutosh, Netai and Subodh) sitting under a Bat Tree. So hearing they sent for Ashutosh, Netai and Subodh in the tea-stall and they made inconsistent statements about the whereabouts of the deceased Bimal. On the following morning that is on 2-2-1960 he went to Subodh's house and at that moment Subodh gave out that he had found Bimal in company of Ashu and Netai for taking date juice. Thereafter upon hearing the statement from Subodh he went direct to the police station at Chakdah and lodged a complaint as per Exhibit 1. Therein he has stated that his son (Bimal) aged about 15 years went to Bistupur with Subodh Chandra Dhar Hoy on the same bycycle and they came together and alighted at Chuadanga Bazar at about 6:30 P. M. Thereafter Ashutosh Chanda and a certain boy named Netai of Phashtola and the aforesaid Bimal and Subodh together went towards the western side of the bazar. Since then, no trace of Bimal is available. Subodh at about 7 O'clock in the night told him that all four of them went to the west of the bazar on the pretext of taking date juice. Therefrom the aforesaid Ashu, Bimal and Netai went towards the field on the northern side of the metalled road for taking juice. After sometime Ashu and Nitai came back, but Bimal did not come back with them. In this document no reference has been made by P. W. 1 as to what he had heard from the P. Ws. 16 and 17 Nimai and Sudhir Karmakar. Accordingly it is urged by Mr. Mallick that the whole affair is a concocted one and these child witnesses have been set up for the obvious purpose of engineering a case against some innocent persons. It may be said in this connection that this complaint before the police consists in substance the allegation that the accused persons with Bimal went to the northern side for the purpose of talking date juice. But, further details as to who (sic) they were seen by P. Ws. 16 and 17 have not been mentioned. In any event, the complaint as it appears is nothing but a missing report and if the details as to what he had heard on the previous evening are found absent from this complaint, it cannot be said that these witnesses have been tutored to give false evidence unless it is found that they are really tutored witnesses. The details as regards the veracity of these witnesses will be discussed later on.
22. As regards the motive, P. W, l's son, P. W. 7 Nirmal Kumar Das has been examined. He has said that Ashutosh had fascination for Minu Rani. Minu Rani in her turn as P. W. 8 has said so and that Ashu was also cutting jokes with her when she went to fetch water. It is the only evidence as to the motive for perpetrating a gruesome murder as alleged by the prosecution. It is, however, true that the incident took place after the chastisement by Bimal on Ashu and it is not clear from the evidence of the prosecution witnesses as to whether such a motive after such a lapse of time could have been possible. Although as regards Ashutosh it may be said that he might have borne some grudge against Bimal and for that purpose he might have designed to get rid of Bimal once for all; yet there is no direct evidence as to the motive that this was the genesis of the whole trouble. In any event as we have already said that if there is a clear proof that a man has committed a crime motive or ill-will becomes immaterial and is not necessary to sustain a conviction. Therefore the principal material whether these persons combined together for committing the offence has to be gathered from the evidence.
23. The next set of witnesses on whom the prosecution has relied as to the missing of Bimal are P. Ws. 2, 3,4, 5, 6,13, 15 and 19. It will appear that in Chakdah Bazar all these witnesses assembled at the tea-stall all for taking their tea in the evening, where also P. W. 1 Rajeadralal Das joined. We have already discussed the evidence of P. W. 1 in some details. It will appear from the statement of P. W. 2 Santimoy Bhattaeharyya, P. W. 3 Paresh Chandra Saha, P. W. 4 Kalipada Chatterjee, P. W. 5 Durga Mohan Banerjee, P. W. 6 Pran Krishna Nath and P. W. 19 Chandra Nath Bhattacharjee. They have all in unambiguous terms stated about the report by P. W. 1 that his son was missing and that on 1-2-1960, really the two child witnesses P. Ws. 16 and 17 made their appearance at the tea-stall and communicated to them as to the time and place when Bimal was seen by them. It will appear from the charge of the learned Judge that he really cautioned the Jury about this child witnesses and have directed them hat there is some danger in believing the child witnesses in certain circumstances. If, however, the Jury in spite of warning believed these child witnesses it was for them to decide whether on their statement a conviction should follow or not. Be that as it may, as we have entered into the evidence, it is necessary for us to discuss their evidence also in its proper perspective for coming to a conclusion whether they are witnesses of truth and whether non-mention of their names in the complaint made by P. W. 1 before the Police has anything to do to belie their statement.
24. P. W. 16 Nimai Chandra Biswas has stated before the learned Judge that he found Bimal Kanti Das sitting on the culvert to the west of the Chuadanga Bazar and he found accused Subodh, Netai and Ashutosh sitting under a Bat tree near the said culvert. Sudhir was with him; he had a talk with Bimal and on being questioned Bimal told him that Sudhir had stopped talking with him. What will appear from his statement that he narrated to the gentlemen present in the tea-stall about the incidents stated before and the object of their going to this Chuadanga Bazar was to sea the Saraswati images which were worshipped at that place. Similar statement was made by P. W. Sudhir as well. Mr. Mallick has invited our attention to the statement of Sudhir to the effect that he did not come to the shop on the 2ud February 1960, as it was a Saraswati Puja day. If this be the fact then according to Mr. Mallick it was not possible for him to go to the tea-stall for communication of what they had seen on the 30th January 1960 to the gentlemen present. It will appear that he was engaged with the Saraswati Puja festival and in his examination-in-chief he has categorically stated that in the evening he and Bimal came to Chuadanga Bazar to see the images of goddess Saraswati. In view of this unchallenged statement it cannot be said that they were not present for the purpose of communicating the feature of their seeing Bimal and the accused persons in the manner he stated before the Court. Apart from this it appears that these witnesses were put to tough cross-examination to show partisanship with P. W. 1 but nothing has been elicited in cross-examination to justify such conclusion. As a matter of fact, the learned Judge was satisfied as to the veracity of the statement of these witnesses and although he was so satisfied, he directed the Jury to be cautious about the evidence of these two witnesses. In the circumstances it cannot be said that they were tutored witnesses for the purpose of engineering a false case against the accused persons.
25. The above evidence as discussed by us would operate a nucleus to the prosecution case about the missing of the deceased Bimal.
26. We have already stated that there is no direct evidence in this case. The murder of Bimal as appearing from the doctor's evidence was rather cruel and revolting one inasmuch as his throat was cut after he was pressed on the ground, and than buried pear the Talpukur tank. Accordingly, when the murder of Bimal is proved beyond reasonable doubt, it has to be ascertained from the circumstances whether the accused are guilty under Section 302/34 of the Indian Penal Code. It may be said in the first instance that the place of occurrence is on the Bhatpara Mat and thi3 place is not far off from the village of the deceased and the other accused persons. It has been gathered from the evidence of the prosecution witnesses that all these villages where the accused persons lived as also the place of occurrence are very close to the Chuadanga Bazar. It will appear from the evidence of P. W. 7 Nirmal Kumar Das, the brother of the deceased, that Bimal accompanied Subodh on a bicycle in the afternoon of 30-1-60 and at about 3 p, m. P. W. 30 Panchanan Dutt who was in charge of the Sahispur Sugar cane farm saw the accused Subodh and Bimal coming to his place on a bicycle and were supplied with some sugar cane. Then comes the evidence of P. Ws. 16 and 17 Bimal Chandra Biswas and Sudhir Karmakar about whose testimony we have discussed before. He stated before several witnesses including P. W. 1 that he found Bimal seated on a culvert and the three accused persons were under a bat tree which is very close to this culvert. Such a statement has been corroborated by a large number of witnesses, viz., P. Ws. 2, 3, 4, 5, 6,13,15 and 19. Undoubtedly these witnesses meet mostly at a common place, viz., the tea stall of Gopinath (P. W. 15) but nothing has been elicited from them to show that they have any animus or grudge against the accused persons for implicating them in a false case. Accordingly, there cannot be any room for doubt as to why the statement of P. Ws. 16 and 17 should be disbelieved regarding the fact that they saw the accused persons standing under a bat tree and the deceased Bimal was seated on a culvert. At the next place, we find from the evidence that on or about 4 P. M, on 30-1-60 Nitai and Subodh were both present in Ashu's house. This fact has been testified to by P. W. 8 Minu Hani, P. W. 9 Kazal Rani and P. W. 20 Chanchala Bhattacharya. Chanchala Bhattacharyya is, however, close neighbour of the deceased. But she has explained that she had been to Ashu's house which is very close to her house for the purpose of bringing a Mahabharata. She also saw Minu Hani and Kazal at this place. This is the first instance where we find that both Ashu and Netai were together. Mr. Mullick has not been able to find out any discrepancy from their statement or any trace on which it may be found that their testimony is not worthy of belief.
27. The next witness who saw Subodh and the deceased together is, as we have stated before, P. W. SO, At the next place we got the evidence of P. W. 27 Sudhir Nabik, who has said to have seen both Subodh and Bimal near a bat tree on a bicycle. The next witness is P. W. 28 Madhai Chandra Mondal who saw Subodh alone on a bicycle in the evening of 31-1-60 near Bistupur which is half a mile from Chuadanga bazar. The next chain of evidence is that Ashu slept in the night following the day of occurrence at the house of P. W. 22 Suhasini Ray. There cannot be any reason why this accused Ashu made it a point to live in the house of a different person and unless there was any idea of hiding from the place such a conduct cannot be explained. In this connection it may be stated that when three accused persons were called at the tea-shop of Gopinath after hearing the report of P. Ws. 16 and 17, they made inconsistent statements about the whereabouts of the deceased Bimal. Further it appears from the evidence of P. W. 1 that although Subodh accompanied Bimal on a bicycle he also could not give any satisfactory explanation as to Bimal's whereabouts when asked by P. W, 1. It is in evidence that all the accused persons and the deceased were of the same age and this will be borne out from the statement of Suboth as well under Section 342 of the Code of Criminal Procedure before the learned Magistrate. He has said that Bimal was his friend and he told him that he would accompany Subodh to Sahishpur on the 30th January 1960. At first he refused but afterwards he agreed for the sake of friendship. This much is apparent from his statement that he went to Sahishpur with Bimal thereafter, Subodh returned to Bistupur where he was certainly seen by P. W. 28 Madhai Chandra Mondal alone. Accordingly this statement of his corroborates the statement of P. W. 28 that he was seen alone coming back at Bishtupur. In so far as the accused Netai is concerned we have already said that he was found at or about 4 P. M. in the house of Ashu and it appears from the evidence of P. W. 21 Maya Rani Biswas that at about 1-30 to 2 P. M. Netai took a spade from her as a loan for the purpose of clearing his cow-shed. Furthermore, it appears from the evidence of P. W. 37, the Investigating Officer that after the occurrence he went away to Santipur and came back to his village and was arrested at the Chakdah Railway Station on 3-2-60, Immediately after the occurrence this conduct on the part of Netai is also relevant for the purpose of considering as to whether any guilt as against him has been proved.
28. As regards pre-concert, we are of opinion that there is still the evidence of Kazal and Maya (P. Ws. 9 and 21). It will appear that these two accused persons Ashu and Netai were together and secondly it may be said that they were found under the bat tree by P. Ws 16 and 17. This will also be borne out from the statement of the accused Subodh before the learned Magistrate under Section 342 of the Code of Criminal Procedure. We have already stated that this fact as to the stay of Subodh and Bimal under a bat tree has been testified to by Sudhir Nabit (P. W. 27).
29. In the chain of events the most important fact which has been brought to our notice is that on 2-2-60 when Daroga babu alighted at the Chakdah bazar from the bus for the purpose of investigating the case, Subodh also made his appearance there and after he had talks with him he was led to the place of occurrence. According to the testimony of a great number of witnesses it is quite clear that Subodh is the person who led the party to the place of occurrence which was found by all of them bearing signs of struggle on the ground and he also led the party to a place near the ditch which was not visible from the road level. There he began to dig a spot and after he became exhausted, the digging operation was taken over by P. W, 5 and P. W. 6 Durga Mohan Banerjee and Pran Krishna Math respectively. It has been suggested on behalf of the defence that the place of occurrence and the burial of dead-body was a talk amongst the people and Subodh was made to accompany the Daroga and their party with the obvious purpose of implicating him in the crime. As a matter of fact, it has been suggested on behalf of this accused that he never bestirred himself in this matter nor did he dig out the place for the purpose of finding out the dead body. This suggestion was given to some of the prosecution witnesses viz., P. Ws. 2, 3, 4, 5, 6,13, 15, and 19 but from none of them it could be elicited that Subodh was dragged to this place by the Daroga or that any mechanization was adopted for the purpose of implicating Subodh. As regards the finding of the place of occurrence and of the digging of the place in the first instance by Subodh, we do not find any reason as to why the aforesaid witnesses should be disbelieved. It may again be pointed out that none of these witnesses has been found to bear any grudge against the accused Subodh. In the circumstances this is a conduct which cannot be explained away merely by saying that he was one of the men who has happened to know that an incident has happened like this and, therefore, he was led to that place for finding out where the dead body lay. These are the chain of circumstances which go to show that there was a pre-concert amongst the three accused persons at the place of occurrence, if not, earlier for the purpose of committing the murder of Bimal.
30. At the next place, we find from the evidence of P. W. 37 that at the time of the arrest of Ashutosh a full shirt and a half-pant respectively marked (Exts. IV and V) were seized from the person of Ashu and that in the absence of Netai from his house a half-shirt belonging to Netai (Exts. VI) was made over to him by his mother and it had some bloodstains. From the Chemical Examiner's report it appears that all these exhibits bore marks of human blood. Accordingly, this piece of evidence is also a very strong link in the chain of circumstances which we have discussed before. It has been argued by Mr. Mallick that these circumstances are not at all strong enough to show that the accused persons were really implicated in the commission of the crime but in so far as the facts and circumstances stated before are concerned, it is unmistakably clear that the chain of circumstances were linked up in such a manner that there was no lapse from which it can be argued that any break in the chain of circumstances was effected.
31. Now let us turn to the medical evidence. It appears from the evidence of the Doctor (P. W. 34) that he held the post mortem examination upon the dead body of Bimal. He found that there was an incised wound 3 1/2' x 2' x 2 1/2' across the middle of throat, the depth of the wound shallowing as it ran from left to right and ending with tailing at the right. The Doctor also found on his person multiple small echymoses and abrasions. The injuries other than the cut injury, according to him, appear to have been caused due to the struggle the victim might have had before his throat was cut. Now referring to this Doctor's evidence we have to see whether it fits in with the confessional statement made by the accused Ashutosh. He has stated as pointed out before, Netai caught Bimal's throat and mouth Subodh caught Bimal's hands and feet and I, sitting upon Bimal's chest, cut Bimal's throat with a knife. Mr. Mallick has argued that his statement in the confession has not in any way been corroborated by the medical evidence inasmuch as it has not been possible for a man like Subodh to catch hold of Bimal's hands and feet before the cutting operation was started by Ashu. It is undoubtedly true that at the same time when a victum is laid on the ground it is not possible for one man to catch hold of both hands and feet together. But in this connexion it may be said that the confessional statements are not in any way characteristic of meticulous precision. What appears from the confessional statement is that Subodh was a person who really caught hold of the deceased Bimal and if that be so and if Netai caught Bimal's throat and mouth it could easily have been possible for Ashu to inflict the fatal cut wound. Accordingly, we do not think that the discrepancy with regard to this fact alone is not sufficient to warrant the conclusion that the confessional statement has no legs to stand upon and should not be relied upon. As a matter of fact, retracted confessional statement has in material particulars been corroborated by the evidence which has been laid by the prosecution.
32. This being the evidence on record, it appears to us in the first instance that the evidence of P. Ws. 9, 10, 20 and P. Ws. 16 and 17 with reference to the statement of P. Ws. 1, 2, 3, 4, 5, 6,13,15,18, 19, 23 and 22 have independently of the confessional statements proved the circumstances in such a manner that Ashu was really a participant in the commission of the act of murder and that he had pre-concert with the other accused persons and this evidence does really corroborate the confessional statement of Ashutosh.
33. As regards Netyananda Sharma his complicity has been duly testified to by P. Ws. 16 and 17 and their statement as to its veracity may be referable to the evidence of P. Ws. 1, 2, 3, 4, 5, e, 13 and 15. The evidence in this regard as against Netai, in our opinion, clearly goes to show that they have duly corroborated the statement made by Netai before the learned Magistrate, who has categorically stated that he and Subodh caught Bimal firmly and Ashu cut Bimal's throat with a knife.
34. As regards Subodh it will appear that he has made no confessional statement before the learned Magistrate but in the foregoing paragraphs we have shown that he must have pre-concert with the other two accused persons and such pre-concert has been clearly evident from the evidence of P. Ws. 1, 2, 3,4,5,6, 7,13.15,16,19, 23, 24, 27, 28 and 30 which have been elaborately dealt with before. Furthermore, much importance should be attached to the conduct which has been discussed before his leading to the Sub-Inspector of Police and the other members of the party to the place of occurrence and his actual participation in digging out the grave under which the unfortunate deceased Bimal lay. Accordingly, the circumstantial evidence against him is strong enough for a conclusion that the guilt against this accused 'person Subodh has also been proved.
35. Before parting with this case one thing must be referred to regarding the statement made by P. W. 34 which necessitated the learned judge for calling for a court-witness. P. W. 34 Dr. Rabindra Nath Ghose has stated that his stomach was found healthy and contained about half of slightly digested food consisting of rice etc. and small amount of clotted blood. Thus his evidence shows that his stomach contained some food which was not totally digested. The learned Judge had perhaps in his mind that if he had undigested food at the time of occurrence, viz., between 7 and 8 P, M. in the night it may be doubted whether the time of occurrence was correct -- the deceased must have taken his mid-day meal between 12 noon and 1 P. M.; as he was doubtful of this matter he cited the court-witness No. 1 Dr. Rathindra Mohan Guha Neogi, the District Medical Officer of Nadia. He has said that ordinarily full digestion of foods such as rice in the stomach takes places within 3 or 4 hours maximum and by that time the stomach is emptied. If that be so then it may be said that the deceased had taken his meal sometime at 3 p.m. to 3-30 p.m. The learned Judge has cautioned the Jury regarding the time of the occurrence. According to the confessional statement of Ashutosh the murder has been committed between 7.30 and 8 P. M. It might be so that the deceased might have taken rice sometime between 3 p.m. and 3.30 p.m. otherwise there could not be any undigested food in the stomach. But in so far as the undigested food is concerned if the deceased had really undigested food he, according to the medical evidence might have been murdered between 4 and 4.30 p.m. This is nobody's case as the association of the deceased Bimal with the accused Subodh was testified to be between 3-30 and 4.30 p.m. and morever there is no evidence on the prosecution side as to when really did Bimal take his meals and this factum of finding of an undigested food in the stomach cannot play any important part inasmuch as the doctor's evidence is merely an opinion which cannot override the large number of evidence in this case regarding the association of Subodh and the deceased at about 3 p.m. or 3-30 p.m. This being the position) the evidence of the Court witnesses is not of much importance in this case.
36. Before parting with the case it may be mentioned that the learned Sessions Judge has charged the Jury on all points and have pointed out the weakness of the prosecution evidence if any, to the Jury and has directed them with great care regarding the points of law. If in spite of it the gentlemen of Jury came to the conclusion that the accused were guilty, it cannot be said that there was any misdirection in the charge of the jury who find as the final Court of facts that the accused persons were guilty under Sub-section 302/34 of the Indian Penal Code. Apart from the verdict of the Jury we have ourselves gone into the evidence at great length and cannot on the face of the evidence as it stands accept the argument of Mr. Mallick that no case has been proved by the prosecution beyond reasonable doubt against the three accused persons.
37. In the result, the appeal must stand dismiss-ed. The conviction of the accused persons underSub-section302/34 of the Indian Penal Code made by the learned Sessions Judge and the sentence to imprisonment for life passed upon them are hereby affirmed.
A.K. Das, J.
38. I agree with the conclusion of my Lord and I would only add a few words regarding the admissibility of the confessional statement regarding which lengthy arguments were advanced from the Bar. In the present case the two appellants, Netai and Ashutosh, made confessional statements which were recorded by a Magistrate. The Magistrate gave them more than three hours for reflection and recorded the statements only after he was satisfied that the statements were voluntary and not result of pressure or Ill-treatment by the police. The learned Advocate for the defence has referred to the case reported in : 1957CriLJ1014 , and has argued that the learned Magistrate should have given at least 24 hours' time for reflection and sent the confessing accused to jail custody before recording the statements and for failure to do that the confessional statements should not be used against either of the accused. In the above case the confessing accused was produced from police custody. He was in police custody from 25th November to 30th November for a full period of six days for which no satisfactory explanation was given. Thereafter, when produced, the learned Magistrate straightway proceeded to record the confession giving only half an hour's time for reflection. The Magistrate also candidly admitted that he recorded the statement as the accused was eager to make the confession. In the light of these facts, their Lordships of the Supreme Court not only advised the Punjab High Court to revise the criminal rules but stressed the importance of having the accused's mind completely freed from any possible influence of police. According to their Lordships the effective way was to send the accused to jail custody and to give him adequate time to consider if he should at all make a confession, In doing that, their Lordships pointed out that it was difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case but stated that speaking generally a period of 24 hours' time would be reasonable. Their Lordships, therefore, did not lay down any hard and fast rule prescribing a period of 24 hours but conceded that the period would vary from case to case and that what was important was to be judicially satisfied that the confession was voluntary and not due to police pressure or influence. In the present case the accused Netai was arrested on 3rd February 1960 and was produced in Court on 4th February 1960 and his confession was recorded on the next day, that is, 5th February 1960. Ashu was arrested in the midnight of 5th February 1960 and forwarded to Ranaghat Court on 5th February 1960 at 2 P, M. and his confession was recorded on the next day, that is, 6th February 1960. The Magistrate recorded the statement after giving them more than three hours' time for reflection and he was satisfied that the confession was voluntary and the learned Sessions Judge was, therefore, fully justified in taking the statement in evidence and placing it before the jury. I may incidentally point out that in this very case one of the three accused, Subodh, was produced before the Magistrate for the purpose of recording the confession from police custody but he did not confess. This fact also strengthens the view taken by the Magistrate that the confession was voluntary and not result of any pressure. The Supreme Court decision was referred to in the case reported in : AIR1958Ker207 , Davasia Yohannan v. State, and the learned Judges found that the observation in the Supreme Court case of : 1957CriLJ1014 , that in ordinary circumstances an interval of 24 hours may be regarded as reasonable time for reflection, is not to be taken as an absolute rule and it cannot be said that whatever the circumstances, a confession recorded without allowing this interval for reflection is to be rejected as a confession that is not voluntary. In another case reported in , Mohd. Ishaq Ahmad Din v. State, the same decision was again considered and the learned Judges held that there is no universal mandatory rule of law that a confession recorded after about one hour or so of the willingness shown by the accused must be declared as inadmissible or untrustworthy. The decision of the Supreme Court in our view also, has to be read in the light of the facts of each case and judged by that standard the confessions recorded by the learned Magistrate appears to be perfectly admissible and the Judge was right in placing it before the jury.