B.C. Chakrabarti, J.
1. This is an appeal against an order passed by the learned Additional Sessions Judge, Purulia in Sessions Trial No. 14 of 1979, convicting the appellant under Sections 302 and 309, Penal Code, and sentencing him to undergo imprisonment for life on the first charge and simple imprisonment for one year under Section 309, I. P. C
2. The charge against the appellant Mihir Adhikary was that on 15th day of September, 1977 he did commit murder by intentionally causing the death of Hira (wife of the appellant) and Sarada (daughter of the appellant aged about 11/2 years) and thereby committed an offence punishable under Section 302 of the Code. The second count of the charge was that on the same day and at the same place he attempted to commit suicide and did an act to wit caused stab injuries on his person with a view to commit suicide and thereby committed an offence punishable under Section 309 of the Code.
3. The accused appellant is the son of the informant Tinkari Adhikary by his first wife. Tinkari Adhikary was the postmaster at Purulia and was residing in the official quarters meant for the postmaster at the relevant time. The appellant lost his mother when quite young and Tinkari married again. Tinkari has several children by his second wife named Puspa. The elder sister of Puspa is the mother-in-law of the appellant Mihir.On the relevant date the accused-appellant went to sleep in the eastern.verandah of the quarters along with his wife and daughter after taking theirmeals while the other inmates, viz. Tinkari, his wife Puspa, his children, viz. Dhanapati, Nirupama, Sanjoy and others slept in the two rooms of the quarters. The mother of the deceased Hira was also there in that house on that night. Up to this there is no dispute. The prosecution case now is that at about midnight Tinkari and other members sleeping in the rooms were awakened by shouts raised by Hira to the effect that she was being killed, by her husband. Immediately Tinkari along with Dhanapati and Nirupama, a son and daughter of Tinkari by his second wife, rushed to the police station. The police station is about 1/8th of a kilometre from the house. There Tinkari made a statement which was recorded in the G. D. being Entry No. 586 (Ext. 6). Immediately after recording the G. D. S. I. Atul Chakrabarty came to the house of the informant. Then the door leading to the eastern verandah was opened and the party came into the verandah. Some outsiders also were in the party. They found Hira and the baby lying dead in a pool of blood. The accused was lying in a cot with a knife stuck to his chest. On seeing the people the accused threw away the knife to the courtyard and made a statement confessing that he had murdered his wife and the child and thereafter attempted to commit Suicide. The injured, viz., the appellant was then sent to the hospital in a rickshaw. At the hospital too the appellant made a statement confessing his guilt. The statement was recorded by the medical officer countersigned by two witnesses.
4. In the meantime Tinkari again went to the police station and made a statement before the officer-in-charge who after recording the statement, started puruliaTown P. S. Case No. 18 dated 15-9-1977.
5. The accused was formally arrested at 4 a.m. and was forwarded to Court on the very same day. After completion of investigation charge-sheet was submitted against the : accused on the two charges aforesaid. The defence as far as it could be gathered from the trend of cross-examination, the statement made under Section 313 Cr. P.C. and the submissions made on his behalf is that he has been falsely implicated in this case. In fact, some miscreants raided the house and the accused repeatedly asked his father to open the door. The door was not opened. The miscreants killed his wife and daughter and also attempted on his life. He became unconscious and lay unconscious when the witnesses came and when he was sent to the hospital. He denied to have made any statements in the nature of confessions either at the house or at the hospital.
6. As many as 21 witnesses have been examined in this case for the prosecution. The defence did not adduce any evidence. Of the witnesses examined P. Ws. 13, 15, 17, 18, 19 and 20 are police officers and constables. P. W. 14 is the autopsy surgeon who held postmortem examination on the dead bodies of Hira and Sarada. P. W. 16 Dr. Mahanty was the medical officer attached to Purulia Sadar Hospital at the relevant time. He examined the appellant and also recorded the alleged extra-judicial confession made by him at that time. P. W. 21 is a formal witness proving a report of forensic examination of certain articles sent for the purpose. The knife was one of the articles sent and it was found to contain stains of human blood. Of the remaining witnesses P. Ws. 1, 2, 3, 4, 6 and 7 are inmates of the house. P. Ws. 5, 8, 9, 11 and 12 are outsiders who assembled at the house on the night of occurrence.
7. P. W. 1 says that on the relevant night he and the other members of his family went to sleep at about 10.30 p.m. after taking their meals. He was occupying one of the rooms with his wife Puspa and 3 of their children. The other room was occupied by his mother-in-law, the mother-in-law of the accused and Dhanapati, the eldest son of P. W. 1 by his second wife. The accused and his wife along with their daughter Sarada went to sleep in the Eastern verandah. There were two cots in the verandah for their, use. At about 12.30 in the midnight P. W. 1 heard Hira shouting that she was being killed by the eldest son of. the witness. She was shouting for help. Out of fear the witness did not venture to open the door and come out to the verandah. Instead he rushed to Purulia Town P. S. along with his son Dhanapati and daughter Nirupama. At the police station the information given by him was recorded and thereafter the police came to the house when the door leading to the verandah was opened. The party went into the verandah and found Hira and Sarada lying dead with bleeding injuries and also found a knife stuck in the body of Mihir the appellant. On seeing the people Mihir drew out the knife and threw it into the court-yard. Mihir at that time gave out that he had murdered his wife and daughter and also made attempt to put an end to his life. The police arranged for removing Mihir to the hospital. The witness again went to the police station and made a statement which was recorded and was signed by him (Ext. 1). The knife which the accused threw away was also seized by the police under the seizure-list (Material Ext. I). From the cross-examination it appears that the quarters occupied by P.W. 1 has two rooms with a verandah on the east and a compound thereafter surrounded by compound walls. It also appears that a new post-office building was under construction close to his quarters and the office of the telephone exchange is also close by. The Witness or the other members of the household did not raise any alarm after hearing the shouts of Hira. The first thing that they did was to rush to the police station. He has also stated that 4 or 5 outsiders came along with them when they entered the varandah along with the police. He has admitted that sometimes he had altercation and quarrel with the appellant but did not admit that he was not in good terms with the appellant or that the other members of his family were ill disposed towards him.
8. P. W. 2 Dhanapati Adhikari is the eldest son of P. W. 1 by his second wife. Ha materially corroborates P. W. 1 and also speaks of the extra-judicial confession made by the appellant when they came to the varandah. He has stated that while going to the thana they shouted for help. He has denied the suggestion that the appellant was lying unconscious at the time they entered the varandah.
9. P. W. 3 Nirupama Adhikary is the eldest daughter of P. W. 1 by the second wife, and P. W. 4 Puspa Adhikary is the second wife of P. W. 1, They too have materially corroborated P. Ws.1 and 2 in regard to the main incident. P. W. 4 has categorically stated that even after hearing the shouts raised by Hira they did not attempt to go to the verandah out of fear and that her elder sister (mother of Hira) also did not come out to the verandah. They came to the varandah only after the police came and that was within about 2 minutes. She too has denied the suggestion that the appellant was unconscious at that time. The obvious defence suggestion was that he was not in a fit state to make any confessional statement at that time. P. W. 6 is another son of P. W. 1. He was merely tendered and cross-examination was declined. P. W. 7 AparnaChowdhury is the mother of Hira. She was living in the quarters of P. W. 1 on the relevant night. Her evidence is that her daughter, son-in-law and their daughter went to sleep in the varandah, that sometime later she heard her daughter shouting to the effect that her husband was killing her and at once Tinkari went to call the police along with Dranpati and Nirupama. After the police came they all entered inside the verandah. She also corroborates P. Ws. 1, 2, 3 and 4 when she says that the appellant drew out the knife from his person and threw it away and that he made a statement to the effect that he had killed his wife and daughter and that he attempted to commit suicide.
10. P. W. 5 Abdul Samad Khan, P. W. 8 Nemai Chandra Sen, P. W. H Gouri Sankar Mondal, P. W. 12 Rengtu Bauri were some of the outsiders who had assembled at the house. P. W. 5 and P. W. 8, have spoken about the statement made by the appellant to the doctor at the hospital. P. W. 5 has further stated about the statement made at the house before removal to hospital. They both claimed that the doctor recorded the statement at the hospital and that they signed the paper. P. W. 9 is a witness who came after the incident and is not a very material witness in proving the prosecution case. P. W. 11 is a seizure-list witness in respect of a guilt and the knife seized from the quarters of the postmaster, viz. P. W. 1.
11. P. W. 14 Dr. D. L. Kar is the medical officer who held post-mortem examination on the body of Sarada Adhikary on 15-9-1977. He found as many as 12 punctured wounds of varying sizes and depths-- all on the back of the victim who was aged only about 11/2 years. The doctor opined that the injuries might be caused by a pointed weapon like a knife and when Material Ext.1, was shown he further corroborated that the injuries could have been caused by that weapon. The injuries were ante-mortem and homicidal in nature. On the same day he held postmortem examination on the dead body of Hira and found 5 punctured wounds of varying sizes and depths from 3' to 4', all on the front of the chest between the breasts. These injuries too in the opinion of the doctor could be caused by the knife (Ext. I). On behalf of the accused this doctor was cross-examined to some length to find out if it was possible for Hira to have shouted after having received the injuries of the nature found by the doctor. The cross-examination was directed possibly to indicate that the prosecution story that Hira gave out the name of her husband as the assailant could not possibly be correct. The doctor has stated that it might be that the injured person became unconscious after receiving some injuries and that he was unable to say whether she became unconscious immediately after receiving the first blow.
12. P. W. 16 Dr. P.C. Mahanty examined the appellant at the hospital and found 5 stab injuries all in the front of his chest of which two were on the upper part of the sternum and three on the lower part. The sizes of the injuries were about 1' in length and 1/4' in breadth. The patient was fully conscious. He made a statement which P. W. 16 recorded and got signed by P. Ws. Nemai and Abdul Samad. The statement so recorded was admitted in evidence and marked Ext. 2/2. In the opinion of the doctor all the injuries found on the person of the accused might be self-inflicted. The other witnesses are police officers and some formal witnesses as has already been indicated.
13. Upon a consideration of the evidence, the circumstances of the case and relying upon the extra-judicial confessions made at the house and also at the hospital the learned Judge found the accused guilty of the charges brought against him. He overruled the contention that the extra-judicial confessions made at the two different places were hit by Sections 25 and 26 of the Evidence Act and were not therefore admissible in evidence. The theory that some miscreants from outside had raided the house was also disbelieved. Accepting the prosecution evidence the learned Judge found the accused guilty and convicted and sentenced him in the manner aforesaid.
14. Mrs. Moitra appearing for the appellant contended before us that the conduct of the inmates of the house was most unnatural and unusual, that the document which has been treated as the F.I.R. could not have been so treated in view of the earlier information given by P. W. 1 at the police station, viz., Ext. 6, that the initial entry in the G. D. contained no reference to Hira crying out that she was being killed by her husband and that the story that was subsequently given at the trial was a later concoction. She also complained that the alleged extra-judicial confessions at the house and the one made before the doctor are hit by Sections 25 and 26, Evidence Act. She also made a grievance that the statement recorded by the doctor was not corroborated by P. Ws. Nemai and Samad in so far as they had blindly put their signature to the document without trying to ascertain what was written there. Finally it was contended that in any event the case had not been proved beyond all reasonable doubts against the accused.
15. It is true that normally the inmates of the house were expected to open the door when they heard the shouts of Hira. But what we get from the evidence is that they rushed to the police station and their evidence invariably is that they were afraid to open the door. It is in evidence that the police station is only a stone's throw from the house of P. W. 1. The evidence further shows that the police after recording the G. D. came back within a matter of a few minutes. The inmates having heard Hira crying that she was being killed by her husband it was not unusual for the inmates to get frightened. One does not kill one's wife and child unless one is in a state of extreme frenzy and in a hysterical mood. In such a state of mind a man is lost of the power of self-control and of distinguishing between right and wrong. He may do anything in such circumstances and the fear that the inmates had in their minds cannot be said to be unusual or unnatural. This is specifically so when police assistance was so readily available. Therefore they thought it wise not to open the door at once and thereby incur the risk of assaults upon themselves.
16. In regard to the F.I.R. it is true that the document which has been treated as the F.I.R. could not be so treated. In fact, the G. D. Entry No. 586 (Ext. 6) was the earliest information and the subsequent statement made by PW1 cannot therefore be treated as the F. I. R, It is complained by Mrs. Moitra that in the G. D. there is no reference that Hira cried out that she was being killed by her husband. Therefore it was argued that the case subsequently made out must be an embellishments. We are unable to subscribe to this view, for in the G. D. what is recorded is that Mihir (the accused) was murdering his wife and that the wife was crying that she was being killed. The G. D. does not record the exact statement made by him. It only records the gist or the substance of what is stated and there are indications even in the G. D. that it was Mihir who was the assailant. Consequently we are unable to accept the defence contention that the prosecution evidence as given at the trial is an improvement upon the initial case made out in the G. D.
17. In regard to the extra-judicial confession made at the residence it istrue that S. I. A. Chakrabarty was present at the time when the alleged confession was made. The question is whether that alone is sufficient to attract Section 25, Evidence Act, and thus exclude the statement as inadmissible. Section 25, Evidence Act, provides that no confession made to a police officer shall be proved as against a person accused of any offence. The evidence on record shows that the statement made by the accused was not a statement made to a police officer. There was a large number of people present there including some outsiders. The statement was made generally to the crowd who had assembled at the place. The mere fact that the policeman was there cannot be construed to mean that it was a statement made to a police officer. What Section 25 contemplates is a statement to a police officer, but the section does not exclude all statements made in the presence of a police officer unless it comes within the meaning of Section 26, Evidence Act Learned Public Prosecutor in this case contended that the confessional statement made by the accused appellant in the house was not meant for the police or for anybody in particular and that it was more in the nature of a soliloquy. We think, in the circumstances of the case, we should interpret the evidence as such. The statement cannot be said to be a statement made to the police
18. At the time when the statement was made there was no extraneous influence or extortion which might induce the accused to make the statement. The object behind exclusion of statements made to the police is obvious. The police are suspect and often extort confessions by inducements, undue influence, torture and oppression. It is with a view to prevent the abuse of their power that Sections 25 and 26 have been enacted, not that confessions to police is not relevant. In this case the statement was made, at a time when there was no question of the police exerting any extraneous influence by their mere presence amongst the crowd The statement was not made to them though they might have heard it among the crowd. Therefore, in our view, such a statement cannot be said to be hit by Section 25, Evidence Act. The view so taken by us finds support from the decisions in the cases of Ghunnai v. Emperor. AIR 1934 All 132 : 1934-35 Cri LJ 448, Emperor v. Shankar AIR 1934 Oudh 222 : 1934-35 Cri LJ 894. Sridevi v. State 1974 Cri LJ 126 (All). We think, therefore, the statement made at the house is admissible and the objections relating thereto cannot be suistained.
19. But the alleged confession proved by Dr. Mahanty stands on a different footing. This was certainly made at a time when the accused was in custody and the statement was not made in the immediate presence of a magistrate. Therefore, Section 26 operates as a bar to its admission. Learned public prosecutor agrued that the accused was in fact arrested at about 4 a.m. and that therefore the statement made before that time cannot be said to be a statement made while in custody of the police. We are unable to accept this contention. The bar under Section 26 is not attracted only after the man is formally put under arrest. A man may be in custody without having been formally arrested. Custody includes a state of affairs in which the accused can be said to have come into the hands of the police or have been under some form of police surveillance or restriction on his movements by the police. In the present case after the accused was sent to hospital by the police after he had made the confessional statement at the quarters he curtainly had no freedom of movement and he was in the custody of the police from that very moment even if the formal arrest was made sometime later. The fact that the formal arrest was made at 4 a.m. in our view, make: no difference. The accused certainly was in the custody of the police from before the formal arrest. Therefore the confession recorded by the doctor at the hospital is hit by Section 26, Evidence Act. Incidentally it. may be mentioned that at the time when the alleged statement was recorded by the doctor, two police constables were standing in close vicinity.
20. Even though we are inclined to exclude the statement recorded at the hospital as an extra-judicial confession, we have taken into consideration the confession made earlier. Besides the extra-judicial confession we think the circumstances of the case also point to the guilt of the accused. Admittedly the accused, his wife and daughter after taking their night meals went to sleep in the eastern varandah of the quarters. It may be useful to bear in mind the topography, of the house as has transpired from the evidence. The rooms are on the western side. The verandah is to the east of the rooms and to the further east is the courtyard which is surrounded by compound walls on all sides with a height varying between 6 to 7 feet. There is a door affixed to the compound wall on the eastern side. This door was found closed from inside at the time of the occurrence and when the witnesses came upon the verandah. The inmates of the house woke up on hearing the shout of Hira that she was being murdered by her husband. When the in: mates came to the place of occurrence with the police they found the accused lying on a cot with a knife stuck to his chest which he threw away on seeing the witnesses. Hira and Sarada were found lying dead in a pool of blood. The theory that the accused was lying unconscious is not only disproved by the evidence of the witnesses but also by the testimony of the doctor who found that he was conscious and able to speak. This injuries on the person of the accused were minor in nature and could well have been self-inflicted. It is significant that in spite of the injuries it was possible to forward him to court on the very next day. This indicates that the injuries were superficial in nature. If miscreants from outside raided the house as has been suggested, the entire look of the place would have been different. Even assuming that it was possible for miscreants from outside to enter the compound by scaling the wall, it does not seem possible that they would while making good their escape would follow the same path, viz., scaling the wall instead of taking recourse to the more convenient, safe and easier course of opening the door and running away. Then again if the miscreants had Altered the house with a view to kill all three of the persons sleeping in the verandah as has been suggested on behalf of the defence, the normal course oh their part would be not to start with the wife or the child making it possible for the appellant to offer resistance or to cry for help. Their first impulse would be to attack the person who might, if at all, effectively offer any resistance. Even assuming that the miscreants acted foolishly in selecting the wife or the daughter as the first victim, even then it does not stand to reason why they would spare the accused and leave him with only some superficial injuries. Such being the position, we think that the theory that some miscreants from outside committed the act must have to be ruled out. The presence of any other person seems impossible in view of the fact that the door of the courtyard was bolted from inside and also from the manner of assault and the selection of the victims.
21. The inhuman and brutal manner in which the baby was killed and the wife was murdered indicates that possibly the victim had some suspicion about the fidelity of the wife or the parentage of the child. But this, however is a matter of guess and we have it there. But the fact remains that the assailant made no mistake in selecting the victims and made no mistake in selecting the site of attack so as to render every chance of survival impossible. An outsider raiding the house as suggested on behalf of the defence, could not have behaved in that manner and even if he did so, could not have left the accused practically unscathed, We are satisfied that it was the accused who did the act, It is true that the motive why he did so has not come to light, but proof of motive is not a must. Motive there always is-- sometimes it is known, sometimes it remains undiscovered. If known it lends assurance to the finding but failure to discover the motive cannot be a ground for disbelieving a case if it is otherwise established upon reliable and cogent evidence. In the instant case, we find that the charge against the accused has been proved and established beyond all shreds of doubt. Therefore we find no substance in the appeal.
22. The appeal accordingly fails. The order of conviction and sentence isaffirmed.
J.N. Chaudhuri, J.
23. I agree.