1. On the evening of August 22. last year, a particularly revolting murder took place near a village in the District of Bogra. The victim of this murder was a man of the name of Oli Mahmud Mandal. He was first badly hacked about the body and in addition to that, he was decapitated. The medical evidence showed that on the whole, the examining officer was of the opinion that this cutting of the head took place when he was still alive. I mention that to show the extreme brutality of this crime. His headless body was found in a brinjal field close to his village. Subsequently, the appellant Arajaddin Molla together with two other men were arrested. They were put on their trial before the Sessions Judge of Pabna and Bogra with a jury. The result of that trial was that the appellant was convicted and sentenced to death but his two companions were acquitted for, what I gather was want of proper evidence.
2. The basis of the prosecution case against the appellant was the confession made before a Magistrate. The confession has been attacked, because it is said that it was not made with the accompaniment of the proper formalities demanded by Section 164 of the Code of Criminal Procedure. I propose to read the confession which is quite a short one and also to read out the preliminary questions and answers which preceded the making of the confession. It may be noted that the Magistrate who took down and superintended the making of the confession was called as a witness at the trial, what he said was this. It is set out in Ex. 8:
The accused Arajaddin Molla is brought by Ahmad Ali, Police, before me at my house at Bogra on August 25, 1935, at 8-15 A.M. to have his confession recorded.
3. He then goes on to describe the questions put to the accused as to the length of time that he has already been in prison and the details of his arrest end after that the following is recorded:
Having talked with the accused explaining to him each of the matters mentioned in para. 5 hereunder and cautioned that he ought to reflect carefully before making any statement, I have placed him in charge of Jajneswar Das, peon, and directed the accused to wait in my house till 11-30 a.m. in order that he may have time to reflect before making any statement.
4. Then the Magistrate makes a further record that he had satisfied himself that during this time between 8-15 a.m. and 11-30 a.m. no Police Officer had access to the appellant who was kept in the Court house, next to the Magistrate's dwelling and when he was brought up to the Magistrate, he was cautioned in the following manner. He was told that the Magistrate was not an Officer of the Police, but a Magistrate; that he was not bound to make a confession, that if he (the accused) did make a confession, it might be used in evidence against him; that he must not say anything because others had told him to say but he was at liberty to say whatever he really liked to say and finally that Me should say nothing which was untrue. The accused was next asked about his reasons for making the confession and he said 'I have committed the murder and so I feel repentant in my mind and that is why I confess.' Just before the confession was actually recorded, he was asked about some wounds on his finger and he said that the wounds had been caused by the knives of his companions at the time of committing the murder. Now, this is the confession which is a short one:
Last Thursday after dusk Tafiruddin Akonda and Kasir Akonda of our village came to my house. They have two knives with them. They said that Oli Mondal of our village had to be murdered. At first I did not agree to go. Afterwards at their request I agreed to go to commit murder. Oli Mondal was a spy. He always used to oppress all of us unjustly. I, Tafiruddin and Kasir went to the east side of a dike and waited there. The night was dark. At 8 or 9 o'clock at night Oli Mondal was returning home for the hat with a bhar (load carried by means of a piece of bamboo) by that dike. He had a hurricane lantern in his hand At first Tafiruddin struck Oli Mondal with a knife. Oli Mondal threw down the hurricane and the load and ran towards his house. Then Tafiruddin, Kasir and I held Oli Mondal down. I caught Oli Mondal by the hand and Tafiruddin and Kasir began to strike him with knife. In the darkness I was also struck with a knife on the left hand. Tafir also got knife wound on his hand. After murdering Oli Mondal, we cut off his head, Oli Mondal was murdered in our brinjal field by the side of the dike. A large quantity of blood was there. Tafiruddin skinned the head with His knife. Then I and Kasir took the head into a jungle situated on the west side of Madhai Nath's house and buried it into the ground there. Tafiruddin threw the skins of the head into the tank of Darga. Then we went back to our respective houses, I had a black garncha on my person. It became stained with blood. After returning home, I bathed that very night. When the gameha was dipped in water the blood marks became almost faded. Later on I produced the gameha and the head before the Daroga Saheb. I have made over the head to the Daroga Saheb after digging it out from under the earth.
5. Subsequently, he retracted that confession at the trial and, said that he made it because he was beaten. It is to be noted that one of his companions made an exculpatory confession which was also retracted. But it is on the record and although it is even shorter in its description of what happened than the confession which I hare just read out, it does refer to the hurricane lantern, the association of the three men and their intention to murder Oli Mondal. It is not disputed also that after the appellant's arrest he went off to the spot where the head was burried and he dug up the head from the ground. That in itself seems to me to be corroboration of one of the most important parts of the retracted confession and there are other incidents also which are not challenged at all. There was evidence, for example, of the fact that Oli Mondal was very unpopular in the village and that the three persons who were put on this trial had a particular enmity against him. There is further evidence which is also in the nature of corroboration. These three had been heard talking over the possibilities of attacking this man. And their striking piece of corroboration of the details of the confession was the fact that as we have seen it was mentioned in the statement that for the purpose of destroying his identity, the skin of the dead man was pealed off his face with a knife. That incident was confirmed by the fact that there was no skin on the face when the head was found. There were also certain statements and evidence with regard to the blood on the appellant's gomcha which he was wearing and which he washed. Finally, it is to be observed that no evidence was given for the defence.
6. Mr. Talukdar, who strenuously argued on behalf of the appellant, said, I think, immediately the extreme weakness of this appeal on facts. He confined himself almost entirely to an attack upon the manner in which the confession was made and the way in which he contended that the Magistrate had not complied with all the necessary warnings and so on, that the law, he says, must be administered and brought to the notice of the accused persons who wished to make voluntary statements of this character. I am convinced, however, that the Magistrate here did everything that could be reasonably possible to bring to the notice of the accused person the position in which he found himself before he recorded his very short and very straightforward confession. I am not in the least impressed by the argument that he was not properly warned. I read out the questions which were put to him, and, in my opinion, before he made that confession, he was in complete possession of the position. The mind of an accused confessing man who has proceeded to unburden himself is difficult to understand. That is the reason why it is advisable that even after they arrived before the Magistrate, he should be allowed time to think over what he is going to do. Another feature of the case is this: We are not in the position of a jury here. We do not need the warning that the jury must have that no overwhelming inference is to be drawn from the failure of defence witnesses or the non-calling of defence witnesses. We know the prosecution must prove their case against the accused beyond a preadventure and that is why two of these men have been quite properly acquitted. The jury thought that the evidence against them was not strong enough and they were given the benefit of the doubt. But sitting in a Court of appeal, one is entitled to look at the other side of the story. How could the Police have known where the head was and could such knowledge be fixed upon the accused in a way which was false? It has been argued that the evidence of the production of the head does not give the information of the best kind as to what he and his companions were doing. It is so fantastic an argument that it does not require any serious consideration.
7. The only other matter to comment upon is, quite shortly, that I doubt very, much whether I have ever met in this country a more admirably arranged and concise charge to the jury than the learned Judge made here. It is a model address, and does not contain that redundant repetition which is so often to be found in mofussil charges. We view these murder cases with a good deal of anxiety, and I think I am justified in saying that the jury here must have fully appreciated the facts of this case, and there is every evidence that they applied their minds properly to the facts before them and that they were abundantly justified in finding the appellant guilty. There are no extenuating circumstances, and in my opinion, the sentence of death ought to be confirmed.
8. The appeal, accordingly, is dismissed.
9. Henderson, J.
10. Although there are no reasons to suppose that the confession made by the appellant was untrue, at the same time it can hardly be said that the remaining evidence alone would be sufficient to sustain the conviction. It is, therefore only natural that the defence concentrated upon this confession and endeavoured to have it excluded from the record altogether. As soon as the prosecution attempted to put it in, its admissibility was objected to on three grounds which the learned Judge overruled. Those grounds have also been passed before us in this Court.
11. The first objection is to the effect that the learned Magistrate did not write down the warnings which [he gave to the accused in Bengali. In the first place, in my opinion, the decision of the learned Judge was correct. It cannot be said that these preliminary warnings given by the Magistrate were part of the statement made by the appellant. In the second place, the prosecution actually put the Magistrate into the witness-box, and he gave evidence as to the actual warnings which he gave to the appellant.
12. Secondly, it was urged that the confession was inadmissible, because it was not signed by the appellant. When the appellant was making the confession, he informed the Magistrate that he was illiterate and, accordingly, his thumb-impression was taken. Now, before a confession can be admitted into evidence, the first thing which requires proof is that the accused person really made it, it could hardly be said that there is any presumption that an unsigned piece of paper is a statement made by the accused. It is, therefore, necessary that the Magistrate should take the signature of the accused person. Had the Magistrate not been examined as a witness, in view of the fact that the appellant signed his own signature in the Judge's Court, it could not be said that this confession was proved. But as I have already pointed out, the Magistrate was examined, and he proved that it was the appellant who made the statement. Nor, indeed, was there any suggestion (as there is in some cases) that the appellant did not actually make the statement.
13. Thirdly, it was argued that the confession is inadmissible, because the Magistrate did not ask the accused in so many words whether it was a voluntary confession. This objection is supposed to be based upon the decision in the case of Farid v. The Crown 2 Lah. 325 : 65 Ind. Cas. 613 : 5 P.W.R. 1922 Cr.: 23 Cr. L J 149 : 4 U.P.L.R. (L) 33; A.I.R. 1922 Lah 237. In my opinion, that decision does not support the argument which has been presented before us. All that is required is that the Magistrate should satisfy himself that the confession is voluntary and in this case, there can be no question that he did so. All the objections as to the admissibility of the evidence, therefore fail.
14. The only other thing I need say here is that I agree with my learned brother's appreciation of the charge delivered to the jury by the learned Judge which was full, clear and concise. There is no doubt at all that the guilt of the appellant is established. The jury would have failed in their duty, if they had brought in any other verdict. I accordingly, agree that the appeal must be dismissed and the sentence of death confirmed.