1. The three appellants, Kalu, Wazir Hussain and Mohammad Hus-sain were charged in the court of Sessions Judge, Poonch, with having committed offences punishable under Sections 302/201 read with Section 34, R. P.C. at the trial the learned Sessions Judge found that the first appellant, Kalu, was guilty of both the offences and sentenced him to death for the offence under Section 302, R. P.C. and to rigorous imprisonment for five years and a fine of Rs. 500/- for the offence under Section 201, R. P.C. He however, found that the offence under Section 201, R. P.C. alone was brought home to the other two accused and sentenced them each to rigorous imprisonment for five years and a fine of Rs. 500/-. By this appeal the accused challenge their conviction as also the sentenced imposed on them. There is also a reference from the Sessions Judge for the confirmation of the death sentence imposed on Kalu. This judgment will govern the disposal of both the appeal and the reference.
2. Briefly stated, the prosecution case-is that in the early hours of the morning on 7-8-1970, the accused kalu, acting in concert with the other two accused, caused the death of the deceased, Mir Hussain, by cutting him with an axe while he lay asleep on a cot in a room in the house of the accused. it is suggested that the accused wanted to get rid of the deceased because of certain disputes existing between him and kalu, one relating to Nautor Land and the other respecting sheep which were allegdly stolen by Kalu from the possession of the deceased and later on resorted to the deceased through the intervention of the village Baradari. In order to achieve his object, as the story goes, Kalu, acting in collaboration with the other two accused, invited the deceased to his house on the day preceding the night of occurrence falsely holding out to him that they would sit together and compose their differences. Having murdered the deceased, as the story goes further, the accused wrapped the dead body in a loi (Blanket) and deposited it in their field nearby amidst maize crop grown over it. On the night following they lifted the body from there and carried it to Jabreli Nullah where they hid the trunk of the body in the bushes and the head underneath the stones. Thereafter on the expiry of about 10/11 days they removed the trunk from the bushes and threw it into the Nullah. The current of the water swept the trunk down the Nullah, until it was discovered at a distance by Alam Din P.W. 6 on 21-8-1970 with its one leg and one feat missing. The body was identified on the next day by Sakhi Mohammad. Numberdar P.W. 1; as that of Mir Hussain. He conveyed the information to the police as per Ex. A. Investigation ensued during the course of which certain recoveries were made by the police particularly that of the head of the deceased and the axe at the instance of the accused Kalu. Eventually the accused were tried, convicted and sentenced, as aforesaid.
3. On behalf of the accused-appellants, it was contended before us as before the learned Sessions Judge that the prosecution had failed to prove that the trunk and the head belonged to the body of the deceased. The learned Sessions Judge has rejected the argument observing:
The most important question in the present case that warrants a careful consideration of the prosecution evidence is the identification of the dead body. It is on record that the dead body of Mir Hussain deceased was recovered after a number of days. The learned Counsel for the accused argued that the dead body as it was lying in the Nala was without head and that it could not be identified and also that the skull which is supposed to have been recovered at the instance of the accused Kaloo had also decomposed and was without skin and hair and that it was not identifiable. He, therefore, stressed the point that there is no evidence on record to indicate that the dead body was that of Mir Hussain and that unless this fact is proved, the accused cannot be convicted for the murder of Mir Hussain. It is in evidence that the face of the skull that was recovered at the instance of Kaloo accused was without skin, but above the eyelids there was some skin and hair on the skull thus recovered. It was, therefore, not difficult for Kaloo P.W. brother of the deceased to identify the skull as that of Mir Hussain deceased. There is plenty of evidence on record that when the dead body of Mir Hussain was located in Nala, P. Ws. Sakhi Mohd. and Kaloo brother of the deceased identified the dead body as that of Mir Hussain deceased. Sakhi Mohd. P. W., therefore, made a report Ex. A to the police station Darhal and in that report he has categorically stated that the dead body infact is that of Mir Hussain deceased. This Sakl' Mohd. P.W. has in clear terms stated that the deceased besides being his neighbour had also worked as his employee and that he identified the dead body to be that of Mir Hussain deceased after examining its arms and nails. He further identified the skull of the dead body. Similarly Kaloo P.W. who is the step brother of the deceased Mir Hussain who also identified both the dead body as well as the skull to be that of his deceased brother Mir Hussain. Nabi Baksh P.W. has also identified the dead? body as that of Mir Hussain deceased. P.W. Dr. Abdul Rehman has categorically stated that bones of the Vault of the skull were examined by him and he found them to be that of a male human being aged about 35 years. Bones comprised of two parietal and one occipital were together and there was no trace of any tissue attached with the bones. The Doctor on clinical examination came to the conclusion that these bones were parts of' the dead body of the deceased on which he conducted the post mortem. He further states that due to the external appearance of the Vault of the skull it could be detected that it belonged to the dead body and the skeleton was also having resemblence. This opinion of the Doctor was assailed by the learned Counsel for the accused after taking support from Dr. K. L. Sharma, Surgeons Specialist District Hospital Rajouri who 00 examination stated that the age and sex cannot be determined by these bones as stated by Dr. A. Rehman. He, therefore, is of the. view that in view of the opinion of the Surgeon Specialist Dr. Rehman's statement to the effect that the vault of the skull belonged to the same dead body should be brushed aside.
After considering the entire facts and1 after taking into consideration the series of events that led to the murder, discovery of the dead body and skull and other discoveries I find myself in complete disagreement with the learned Counsel for the accused : What Dr. A. Rehman has said is that on clinical examination he found the head to be belonging to the same dead body. Dr. K. L. Sharma D. W's opinion cannot be considered in isolation of other facts of this case and when Dr. A. Rehman's opinion is combined with other facts and events one can easily conclude that the skull belonged to the dead body of Mir Hussain deceased that was recovered from the Nala. In this connection it is important to record that the dead body was identified by Kaloo brother of the deceased and Sakhi Mohd. P.W. a neighbour and once a master of the deceased. He identified the dead body on examination of its arm and nails. Such type of identifications are possible particularly when a P.W. had a chance to be very close to the deceased. Over and above this it is in evidence that when the skull was recovered, it was found containing some hair and some skin was in tact though above the eyelids; Kaloo P.W. brother of the deceased identified the head as that of Mir Hussain deceased. Besides what is more important is that the deceased was last seen with the accused and thereafter he disappeared. It was the accused Kaloo who pointed to the place where he had concealed the skull of the dead body and it was within his exclusive knowledge. Above all the shirt, under coat and the umbrella of the dead body of Mir Hussain were also hidden by the accused Kaloo and thesse articles were recovered at his instance. In their confessional statements also the accused Wazir Hussain and Kaloo have admitted that they had hidden the head of the deceased at a particular place. All these facts combined together if looked at and if the statements and opinion of Dr. A. Rehman is considered in conjunction with these facts, one can easily conclude that the head that was recovered at the instance of Kaloo accused belonged to the dead body of Mir Hussain deceased. Therefore, clinical examination apart the facts, evidence and circumstances leave no doubt in my mind that the head recovered by the police was that of the dead body of the deceased Mir Hussain, In these circumstances I am of the opinion that despite the decomposition of the dead body it has sufficiently been identified by the prosecution witnesses.
These observations of the learned Sessions Judge are as much erroneous and unconvincing as they are high sounding. He has mixed up the various circumstances of the case least realising that each circumstance is separate from the other and must stand or fall on the affirmance or nonaffirmance of the features peculiar to it. His appreciation of the evidence is laconic and faulty.
4. It is in the evidence that the dead body was first discovered by Alalm Din P.W. 6. He says that the deceased, Mir Hussain, was known to him closely and yet he was not able to identify the body as there is nothing in his statement to indicate that he identified the body as that of Mir Hussain. as he should have, when the deceased was known to him. The reason appears to be very plain. The body was in a state of advanced decomposition with its skin peeled and giving out a foul smell, as the witness has put it. It is also in his evidence that he informed Lalla Numberdar P.W. 7 who admittedly came on spot along with several other persons. It is therefore of interest to note what he has to say on the question of identification. He admits that he knew Mir Hussain deceased and yet he does not pre tend to have identified the body as his. He plainly states that neither he nor anybody else could identify the body. He could not identify the body, as he plainly puts it, because it was headless with its right leg and a portion of the abdomen missing. In fact, as he also puts it, none from his village could identify the body. Then how could Sakhi Mohammad, Kalu or Nabi Baksh do it is something which must be accepted with: caution. This caution is missing in the line of treatment adopted by the learned Sessions Judge in appreciating their evidence. He has put implicit faith in what they have stated without putting it on the touchstone of reason and logic. Judged on their own merits their evidence does not inspire confidence. Take first the statement of Sakhi Mohammad1 P.W. 1. He says that he identified the body us that of the deceased by identifying the arm and the nails as his. There is nothing in his statement to show that the arm or the nails bore any special mark which would help him to identify the same. Next comes Kalu P.W. 11. He says that he had a look at the body and he identified it as that of deceased. He does not testify to the presence of any mark on the body which could have led to its identification by him. Then comes Nabi Bakshi P.W. 8. He states generally that he identified the body as that of the deceased. According to both Kalu and Nabi Baksh, the wife of the deceased too came on spot before the police actually arrived but there is nothing in the evidence of the prosecution to suggest that she could identify the body as that of the deceased. If the arm or the nails of the body, as it was, could provide any clue for its identification there is no reason why others like these witnesses. who knew the deceased, particularly his wife should have failed to identify it. According to Alam Din P.W. 6, Sakhi Mohammad' was the first man who identified the body as that of the deceased when he arrived on spot on the day following its discovery. Till them not even Nabi Baksh P.W. 8 or Kalu P.W. 11 appear to have identified the body. There is nothing in the evidence to show that like Sakhi Mohammad they too were absent from the village and could not therefore see the body till the next day. All these circumstances are self speaking and one cannot help observing that the evidence regarding the identification of the body is made up and unreliable. This is equally true about the identification of the head. What has been described as the head consists of two parietal bones and one occipital bone united together at the switchers with no traces of any tissue attached with the bones, as Dr. A. Rehman P.W. 12 puts it, and yet the prosecution puts forward P.W. 11 to say that it was the head which belonged to the body of the deceased. The statement need only be referred to be rejected, Perhaps it needs no argument to state that it is difficult for anybody to identify the bones as belonging to a particular body. This is why none else, not even Sakhi Mohammad and Nabi Baksh have volunteered to identify these bones as the head of the deceased.
5. Why, at all, should Sakhi Mohd. Nabi Baksh and Kalu P. Ws. have volunteered to identify the body, one is tempted to ask? Unfortunately for the appellants the cross examination of the witnesses in the trial Court has neither been detailed nor precise. Even so the truth has leaked out. There is some evidence to provide the requisite explanation. Kalu P.W. 5 has frankly stated that Sakhi Mohammad P.W. and Kalu accused own contiguous lands and that there have been long standing boundary disputes between them. He has no doubt played down the event adding that these disputes were the source of friction between them before the year 1965 and he did not know if the friction persisted now but it does not show that the ill will and animosity have died out. Accordingly it is not improbable that Sakhi Mohammad should have chosen to settle old scores with the accused. He could not do so unless he first identified the body and then roped in the accused. This is what he has actually done. In the report Exp: A submitted by him to the police he has identified the body as that of Mir Hussain and in the oral statement accompanying the report given by him to the police, which appears at the bottom of Exp-R, he has tried to connect the -accused with the murder of the deceased by raising suspicions against them. In the game that he played he found a supporter in Nabi Baksh P.W. 8 who is his maternal uncle, as admitted by Nabi Baksh, when he says that Sakhi Mohammad is his sister's son. In his anxiety to implicate the accused, Nabi Baksh has gone to the extent of saying that, just one day before the discovery of the dead body, the accused, Kalu, met him and told him, pursuant to his enquiry about the whereabouts of Mir Hussain, that he (Kalu) had invited the deceased to his house and had chopped off his head with an axe during the night, while he lay asleep on a cot addins that, just before the police came on spot, Wazir Hussain and Mohammad Hussain too testified to Kalu having killed the deceased. He says that he communicated this information to Sakhi Mohammad on the very day it was received by him, whereas Sakhi Mohammad states that he was away in the meadows and came to the village only on 21-8-1970 after the information about the discovery of body was conveyed to him by Lala Numberdar P.W. 7. One cannot therefore help the conclusion that Sakhi Mohammad and Nabi Baksh had conspired to involve the accused in the matter making Kalu P.W. 11 as a tool in their hands. There is evidence to show that Nabi Baksh sent men to apprehend the accused, Kalu, and got the other two accused apprehended before the police arrived on spots Why should he have done so? That speaks for itself. The learned Sessions Judge has failed to notice all these circumstances and thereby led himself into error by putting reliance on the testimony of these witnesses as regards the identification of the trunk and the head which, they have stated, were those of the body of the deceased.
6. That much about the oral evidence. The medical evidence too produced by the prosecution does not inspire confidence that the head and the trunk were of the same body. Dr. Abdul Rehman P.W. 12 has stated that it was by external appearance of the Vault of the skull that he could certify that the skull belonged to the trunk in the instant case. What was the scientific background for it, he has nowhere explained? The opinion appears more to be of a layman than of an expert. In his anxiety to please the prosecution he has even gone to the extent of saying that the skull was of a male human body aged about 35 years without giving any reasons for the same. Nowhere does he give an idea of what knowledge was brought by him to bear on the conclusions recorded by him. It is not, therefore, safe to rely on his statement on the question that the skull and the trunk were of the same body particularly so when there is a statement to the contrary from Dr. K. L. Sharma D. W. who unequivocally states that, from the parietal bones and the occipital bones having no tissues attached with them, which were seized in the instant case, age and sex could not be determined nor also could it be stated to which particular body they belonged. According to him age and sex can be determined from other bones like mediaeval bone but not from the bones in the instant case. Even here he has been careful to add that there is no clinical test for examination of bones and 1 think that is the correct view.
7. In these circumstances there is no convincing evidence that the trunk and the skull belonged to the same body or that either of them belonged to the body of the deceased. The finding to the contrary recorded by the learned Sessions Judge is clearly erroneous and must be set aside.
8. Assuming however that the trunk and the head belonged to the body of the deceased, the question still remains whether or not the offences are brought home to the appellants. Here it may be noted that there is no eye witness of the occurrence. The accused are sought to be connected with it on the basis of the following circumstances:
(1) That the accused had a strong motive to get rid of the deceased on account of the disputes existing between him and the accused, Kalu;
(2) That the deceased was last seen residing with the accused in their house;
(3) That the accused made extra-judicial confessions about the commission of the crime by them;
(4) That the accused Kalu and Wazir Hussain made confessions before the Magistrate under Section 164 Cr.. P.C. which they subsequently retracted from before the committing court and the trial Court;
(5) That, pursuant to the disclosure statements of the accused, Kalu recovery was made at his instance--
(i) of Skull of the head of the deceased;
(ii) of an axe, pick axe, stick and gunny bag, all stained with blood;
(iii) of a Waist coat, shirt, umbrella and torn pieces of blanket and turban belonging to the deceased;
(6) That blood stained shirts were seized from the person of Kalu and Mohammad Hussain; and
(7) That the accused Kalu disappeared after the dead body was discovered.
The case for the prosecution is that the accused wanted to kill the deceased because of the disputes respecting Nautor land and sheep existing between him and Kalu accused, It is in the evidence that the deceased was the brother-in-law of the accused, having married their sister. It is therefore, highly improbable that minor disputes, if at all these existed, as regards land or sheep should have driven the accased, Kalu, to think of committing this dastardly crime or at least persuaded his brothers, Mohammad Husain and Wazir Hussain to be party to it. In any case there is no satisfactory evidence affirming the existence of those disputes. It is generally stated in the evidence that ill-will and animosity existed between the deceased and the accused Kalu because of a dispute about Nautor Land and also on account of the fact that sheep allegdly stolen by Kalu from the possession of the deceased were restored to the deceased by the village Baradari. Which was that land and where was it located and how much did it measure, has nowhere been stated It is surprising to note that not even a single question was asked from Patwari P.W. 9 to identify the disputed land. In fact his testimony docs not even remotely suggest (hat any such dispute existed between the parties. Were it that such dispute really existed, he could know it better than anybody else. As such it is difficult to hold that the alleged dispute about land had any real basis. Same is true about the dispute respecting sheep. There is not a single witness who himself was a member of the Baradari that resolved the dispute about sheep. Not even has a mention been made of the members of the village community who intervened, in the matter. Accordingly the statements generally made by Sakhi Mohammad. P.W. I, Lalla, P.W. 7 and Kalu, P.W. 11 that disputes existed between Kalu and the deceased as regards land or sheep does not inspire confidence. Judged on merits also their testimony on this point is worthless. Sakhi Mohammad P.W. says that the deceased had purchased some Nautor land from one Saddar-ud-Din which his son, Ghulam Husain, did not approve of and which created some brickering between the father and the son. Then how did Kalu come in, it is difficult to understand? Lalla P.W. 7 asserts that there was land dispute between the deceased and the accused adding that the deceased had told him that the accused had also stolen his sheep. Cross-examined he says that the police also visited the spot in this connection, but no police officer nor even any police record has been produced to support the assertion made by him. Kalu P.W. 11 stated that animosity existed between Kalu accused and the deceased: firstly, because of the theft of the sheep belonging to Kalu and, secondly, on account of the dispute over land which the deceased had purchased from Ghulam Hussain and which Kalu accused wanted him to part in his favour. He has not however stated how the accused felt interested in the land purchased by the deceased from Ghulam Hussain and how did he feel aggrieved about the theft of the sheep. On the other hand he has stated in the cross-examination that there was no dispute between Ghulam Hus-sain and Kalu about this land before it was purchased by Mir Husain deceased. Then how could a dispute arise between Kalu and Mir Husain after it was purchased by Mir Hussain is something which it is difficult to understand. The allegations made on the question of motive are, if I may say so, simply wild. It is suggested in the defence that the persons really inimical towards the deceased were Abdul and Bashir, local residents of Godasarkari where the deceased lived, the reason being as the defence has put it, that their family was killed during the disturbances of 1965 as a result of a Bomb having been planted in their house which, they suspected, was planted by the deceased and Ghulam Hussain. This is what is endorsed by Hakam Din P.W. 3, leave alone the defence witnesses. He says that Abdul and Bashir had disclosed it to him that Gh. Hussain and Mir Husain had in fact killed their family. Even Kalu P.W. 11 has stated in his statement under Section 161, Criminal Procedure Code before the police that Abdul and Bashir were inimical towards the deceased Mir Hussain, though he has subsequently retracted from it when confronted with it at the trial. In fact Abdul and Bashir were arrested by the police and kept under detention only to be released in the end without giving any reasons in the final charge-sheet submitted by them before the committing court or even making a mention of it in the same. This is significant and self-speaking. Taking all these circumstances into consideration one cannot help observing that the motive attributed to the accused is a far fetched, false and unreal. The learned Sessions Judge has omitted to consider all these circumstances and instead referred it from a mechanical reading of the statements of Sakhi Mohammad, P.W. 1 and Kalu P.W. 11 that the motive was established. The conclusion arrived at by him is clearly untenable and erroneous and must be set aside. I therefore hold that the motive attributed to the accused has no real basis in it.
9. This brings me to the consideration of the circumstance that the deceased was last seen residing with the accused in their house. The solitary witness produced by the prosecution to affirm this circumstance is Kalu P.W. 11. According to him he and his brother, Mir Hussain, deceased, were clearing bushes from the land purchased by the deceased from Mohammad Husain and, in this process, at about 3 or 4 O'clock in the afternoon Kalu accused came there and put it to the deceased that they should sittogether and resolve their dispute about the sheep. Mir Hussain approved of it and accompanied them but came back while the deceased stayed for the night and could not be seen till the body was discovered. Relying on this statement the learned Sessions Judge has affirmed the circumstance that the deceased was last seen residing in the house of the accused. Here too he has not tried to appreciate the evidence correctly. As stated by the witness in his cross-examination he made it known to the Numberdar, Chowkidar and others in the village that Mir Hussain had gone to the house of the accused but did not return adding that the accused told everybody that Mir Hussain had gone to Kashmir. Suprisingly enough there is not a single witness not even Lumberdar or Chowkidar to lend support to him on this point. Judged by the terms of his own deposition, therefore, the witness cannot be considered to be trustworthy. Otherwise also his evidence on this point does not inspire confidence, as I will presently show.
10. The prosecution case is that the dispute about the sheep was resolved by the village Baradari who restored them to the deceased. There is nothing in the evidence to suggest that he flouted the decisions of the Baradari or refused to comply with it. Then what was left out of the dispute which Kalu should have sought to compose with the deceased, if at all such dispute existed. That speaks for itself.
11. There is another point which gives a lie to the assertion made by the witness. Once the body was discovered and it was identified by the witness to be that of Mir Hussain, deceased, he could not, regard being had to the common course of human conduct, help make a spontaneous statement that the deceased had stayed last in the house of the accused and could not be seen thereafter but there is nothing in the prosecution evidence to suggest that any such statement was made by him.
12. That is not all. It is not suggested that the witness raised any suspicions about the deceased having been murdered during the period intervening the day when the deceased who went to the house of the accused, as stated by him, and the day when the body was discovered. He explains it away by saying that a week after Kalu, accused, met him and told him that he had composed his dispute with the deceased, and that the deceased had gone to Kashmir with his sheep. The explanation does not appear to be convincing. Normally the deceased was expected to go back to his house first and meet the witness, being his brother, before he would think of going outside the village. This should have been enough to raise a suspicion in the mind of the witness or at least set him on enquiry whether or not the deceased had actually gone to Kashmir but there is no evidence to suggest that he raised any suspicions against the accused or made the necessary enquiry.
13. In this state of the matter it is difficult to accept his testimony and affirm the circumstance that the deceased resided last with the accused in their house. The finding to the contrary recorded by the learned Sessions Judge is clearly erroneous and cannot be upheld.
14. There is a series of extrajudicial confessions, most of which are attributed to the accused, Kalu. The first in the series is. that allegdly made by the accused, Kalu before Nabi Baksh P.W. 8. As Nabi Baksh puts it, the accused Kalu met him on the road and when he enquired about the whereabouts of Mir Hussain deceased, the accused told him that he had killed the deceased adding that he invited the deceased to his house on the representation that he will resolve the dispute about sheep with him next morning and then during the night, while the deceased lay asleep, he took up an axe and chopped off his head and thereafter threw the body in the Jabrela Nullah. This was so, as the witness also puts it, on 20-8-1970, just one day before the body was discovered. The confession is to be mentioned only to be rejected. It is simply absurd to suggest that the accused should have made such confession. In any case the witness could not be expected to have secreted the news, once it was received by him. Alarming as it was, the news would immediately become the property of the entire village community and yet we do not find a single witness who would say that he got it. According to the own showing of the witness, Sakhi Mohammad P.W. 1 met him on the 20th August, 1970, itself when he conveyed the information about the confession to him but there is nothing in the statement of Sakhi Mohammad to support the same. He does not even make a mention of it in the report EXP. A nor also-in his statement accompanying the report recorded at the bottom of EXP. R, although the report was filed on 22-8-1970, that is, two days after the news was allegdly conveyed by Nabi Baksh to Sakhi Mohammad. This is not all. According to Sakhi Mohammad he was in the meadows looking after his sheep and did not come to his home for 1 1/2 months preceding the discovery, of the dead body, the news with regard to which, as he says, was conveyed to him by Lalla Numberdar P.W. 7 on the night intervening 21/22nd August, 1970. The question of Nabi Baksh meeting him on 20th of August, 1970, did not arise. The story about the confession revealed by the witness is simply a figment of his imagination. Overlooking all these circumstances the learned Sessions Judge has observed that 'There is nothing untoward in his statement to warrant any adverse conclusion against the prosecution.' He has also observed that the witness had no ill will against the accused. I have already pointed out, while dealing with the question of identification, how and why he and Sakhi Mohammad had combined to foist this occurrence on the accused. The observations of the learned Sessions Judge are ill founded and untenable. By placing an implicit reliance on the witness he has simply landed himself into error in holding that the alleged confession was in fact made by the accused Kalu before the witness.
15. Next comes the confession allegedly made by the accused, Kalu, before Hakam Din P.W. 3. The witness says that, after the dead body was discovered, Nabi Baksh asked him and Noora P.W. 2 to find out Kalu accused and get hold of him. Accordingly, the witness further says, he and Noora went in search of Kalu and found him in village Sakri and brought him along. In route, the witness also says, the accused told them on his own that he had killed the deceased and chopped off his head and, when asked why that was so, he told them it was so because of the enmity and ill-will between them. It is highly improbable that the accused should have volunteered the statement. That apart, the assertion is negatived by other evidence and circumstances on the file. To begin with, consider the statement made by the witness himself in cross-examination. He says that the accused met them at Sakri while he was coming to his home and they told him that Nabi Baksh wanted him whereupon he joined them without making any protest or even refusing to accompany them. This shows that the accused Kalu was neither agitated nor anxious, when perhaps it could be argued against him, that his power of rational thinking had got paralysed forcing him to make a spontaneous statement about his involvement in the murder of the deceased. Leave that alone, the witness says that he communicated the information to Kalu Chowkidar. Fortunately, for the accused Kalu Chowkidar has appeared as P.W. 5 but not a hint has been thrown by him on this point. In any case the witness is emphatically contradicted by his companion Noora P.W. 2 who says that they did not have any talk with the accused Kalu enroute. On the other hand he says that it was Nabi Baksh who told him that Kalu had killed the deceased and absconded and suggested it to them to get hold of him. The learned Sessions Judge has held that the witness was withholding the truth, arguing that he as also his companion must have naturally enquired from the accused Kalu about the matter when they met him at Sakri. This is however not the case put forward by Hakam Din on whom he has retied Hakam Din suggests that they did not talk about the matter and that the statement was made on his own by the accused Kalu. Otherwise also it is natural that the witnesses should not have talked about the murder for fear that the accused Kalu, whom they wanted to apprehend, might escape. The logic employed by the learned Sessions Judge in disbelieving the witness Noora is therefore without any foundation. Noora seems to be more truthful on this point than the other witness Hakam Din. Considering all the circumstance, therefore, the alleged confession before Noora and Hakam Din cannot be held to have been proved.
16. Then comes the confession allegedly made by Kalu after he was apprehended by Noora and Hakam Din and produced before Nabi Baksh. The testimony on this point is provided by Lalla, P.W. 7 who says that after the accused Kalu was brought from Sakri he confessed having killed the deceased, Mir Hussain, when asked about it by Nabi Baksh. Nabi Baksh does not however make any mention of this confession nor also Noora or Hakam Din. This confession cannot also, therefore, be held to have been proved.
17. Finally comes the confession attributed to the accused Kalu by Kalu P.W. 11. The witness says that following an enquiry made by him the accused Kalu admitted having killed the deceased and having thrown the dead body into the river and also having hid the head in Phalayjug when the accused was produced by Noora and Hakam Din. On the face of it the assertion made by the witness is absurd. It is improbable that the accused should have volunteered to make the statement and made it so exhaustively. In any case the confession should have been known to Noora and Hakam Din who actually produced the accused but neither of them even throws a hint at it. This confession too cannot, there fore, be held to be proved.
18. Before leaving the matter of extra judicial confession it may be stated that the learned Sessions Judge has also relied upon the statement of the other two accused, Mohammad Hussain and Wazir Hussain, allegedly made before Nabi Baksh P.W. to the effect that Kalu killed the deceased, which he has described as an extra judicial confession. Leave alone the fact that the statement does not stand amply proved, it is clearly exculpatory and cannot therefore be read against the accused, Kalu. The statement could be read against Kalu under Section 30 of the Evidence Act only if the two accused had while connecting Kalu accused with the murder connected themselves also with it.. The learned Sessions Judge has overlooked this circumstance as also the circumstance that the statement could not be treated as an extra judicial confession.
19. Turning next to the confessional statements given by the accused Kalu and Wazir Hussain under .Section 164 Cr.P.C., these are EXP, N, and EXP. G on the trial court file. The accused have resiled from these confessional statements both in the committing court and in the trial court. The confessions, however, stand proved on the evidence of Syed Moh'd Amin Shah, Magistrate first class, who was examined as P.W. 10 at the trial.
20. On behalf of the accused it was argued before us as before the learned Sessions Judge that the confessional statements were involuntary. The learned Sessions Judge has rejected the argument observing that from the evidence of the Magistrate as well as from what has been recorded in the form of questions to the accused and their answers it is clear 'that the statements were voluntary'. He has added further 'that the statements read conjectively with the extra judicial confessions and the disclosure statements leave no loom for doubt that they were voluntary'. Here too as elsewhere in the judgment he has landed himself into error. The extra judicial confessions and disclosure statements constitute circumstances independent from the one based on judicial confession. Proof or nonproof of one would not affect the other. Each circumstance must stand or fall on its own strength and strength of the evidence bearing on it. The second ground taken by the learned Sessions Judge to justify his conclusion is therefore wholly extraneous. As regards the first ground too his finding is vitiated as he has completely overlooked the evidence and other relevant circumstances having bearing on the matter.
Section 24 of the Evidence Act Provides:
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
As observed by this Court in Hari Ram v. State 1972 Kash LJ 64 : 1972 Cri LJ 961:
The words 'appears to the court' in the Section are significant and indicate a lesser degree of 'proof than that contemplated by Section 3 of the Evidence Act. That does not certainly imply that mere allegation by an accused about inducement, threat or promise is sufficient to exclude the confession made by him but it does imply that a suspicion regarding such inducement, threat or prdmise reasonably founded on the facts and surrounding circumstances would justify the exclusion of such confession.
The question arises: Whether on the facts and circumstances of the present case the confession can be stamped as involuntary From the record it transpires that the accused were formally arrested on 24-8-1970. By evening on the following day the recoveries were complete. Their part was done. One should, therefore, expect the police to produce the accused for getting their confessional statements recorded within a day or two following 25-8-1970, if it was a fact that the accused wanted to make confessional statements voluntarily. This was not done. Instead the police continued to keep the accused in their custody for the full period of fifteen days upto 8-9-1970 when they were transferred to judicial custody. If the idea was not to compell the accused to give their confessional statements, what else could it be? Whatever be the reason, there is none on record to justify this prolonged detention of the accused in the police (custody). Even when considered alone, this circumstance, lends itself to the inference that the accused were compelled by the police to make the confessional statements that they eventually made before the Magistrate and were, therefore, involuntary. Yet there is another circumstance which supports this inference. The circumstance appears in the evidence of no less than four prosecution witnesses namely Lall Din P.W. 4, Kalu P.W. 5, Nabi Baksh P.W. 8 and Kalu P.W. 11 who, unanimously and un-equivocally too, stated that the accused were subjected to violence by the police. This is one aspect of the confessional statements which has been completely overlooked by the learned Sessions Judge.
21. There is another aspect of these statements which deserves consideration and which too has been overlooked by the learned Sessions Judge. According to these statements the accused Kalu, gave three cuts to the deceased with an axe which resulted in his death one on his forehead, the second on his neck and the third on his chest. The cut on the neck, it was suggested, separated the head from the trunk. Comparing this version with the post-mortem report EXP. K testified to by Dr. M. A. Rehman P.W. one cannot help observing that the two are irreconcilable. The Doctor noticed the following injuries on the body:
(1) Incised would antemorten 4' X 2 1/2' over the right upper arm. The margins were fine and sharp. The adjacent and subjacent tissues were ecchymosed. The humerus at its middle in through and through. The blood vessels were cut. Decomposition (+ + +)
(2) Right thumb was dislocated at its base and exterminated out. There was extravasation of blood at its base;
(3) There was an incised wound of the size of 12' x 8' over the left thigh, extending right from the inguinal ligament in the anterior triangle. The femora] vessels were exposed and cut. Left femor had been fractured and. exposed and there was a thick corgulum of blood covering the wound. It was liquified due to decomposition. The subjacent issues had been damaged.
(4) Left foot dislocated out at the ankle joint and exterminated out;
(5) There was a lacerated wound over the right thigh in the interior triangle. The femora] vessels had been cut and exposed. The femor had been fractured at the site of the injury and was defleshed due to decomposition of the tissue from mid 2/3rds downwards and lower end of the bone was exposed altogether. Lower link had been exterminated out including right foot.
(6) Left thumb of the left hand was dislocated at its base and exterminated out.
He also noticed some injuries on vital organs like intestines bladder and lungs. As he puts it in the post-mortem report EXP. K, the decapitation of the head was done after the death of the deceased at antlento-oc-cipital joint. in his opinion the death of the deceased was 'due to homicidal infliction of grievous injuries on various sites of the body by a sharp object, on account of profuse, prolonged and fatal haemorhage leading to irreversible shock and injuries to some vital organs such as intestines, bladder and lungs due to some object.
Why this wide gap between the confessional statements and medical evidence? There can be no other explanation than the one that the accused were drilled up in making these statements by the police in the absence of postmortem report which, as it appears from the file, was received by them in late November, 1970.
22. In this background the burden lay heavily on the prosecution to prove that the confessional statements were voluntary. Have they discharged that burden the question follows? Here it may be noted that the accused were lodged in the judicial lock-up at Rajouri which, it is not disputed, is guard-ed by the police. There too they had not stayed for more than one day and two nights when they were produced on 10-9-1970 before the Magistrate for getting their confessional statements recorded under Section 164, Criminal Procedure Code. The Magistrate gave them two hours for reflection and then instantaneously recorded their statements. Beyond fulfilling the formalities, he made no effort to put any question to the accused to make it sure and clear that the statements that they were making were voluntary. He put two questions to the accused; one, as to where they were standing then and, the second, was it not that they were giving the statement under duress and whether they knew that the statements would be read against them. He took no care to ascertain the custody wherefrom they were produced; the period during which they had remained in the custody of police; the treatment that they had received; whether they apprehended trouble if they did not give any statement and what was the motivating force which impelled them to make statements involving, themselves in the crime. While asking the accused if they knew that the statements might be read against them, he even forgot: also to put it to them that they were not bound to make a statement. He perhaps considered it no part of his duty to dispel the apprehensions, if any, lurking in the mind of the accused and to assure them of his protection in case they were not willing to make a statement. He perhaps thought that he was subservient to the police or mistakenly felt that the cause of justice would be better served if he did not probe too much into the mind of the accused. In these circumstances the evidence given at the trial by the Magistrate to the effect that after questioning the accused he was satisfied that the statements were voluntary, which has impressed the learned Sessions Judge, does not really inspire confidence. It must be remembered that the act of recording confessional statements under Section 164 Cr.P.C. is a solemn act and must be performed with all the seriousness that it deserves. It has grave implications for the prosecution and the accused alike. Sometimes an innocent person may get implicated while at other time a guilty person may get free, depending on the manner in which the act is performed by the Magistrate, Sooner the Magistrates realize this, the batter it would be for all concerned. In any case where a Magistrate is satisfied on proper enquiries that the statement is voluntary he should leave .something on record to enable the courts dealing with the case to satisfy themselves that the impression formed by the Magistrate was well-founded.
23. Before leaving this part of the judgment, I .should recommend that the Magistrates in our State should, while record-ing confessional statements under Section 164, . Criminal Procedure Code, bear in mind the following principles set out by Ray. C. J., in Gurubaru Praja v. The King AIR 1949 Orissa 67 at p. 71 : 51 Cri LJ 72:
(i) Full and adequate compliance with the provisions of Section 164, Criminal Procedure Code, is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record and reduces the statements recorded by him to a nullity.
(ii) Such compliance must not be under-taken in the spirit of being done as a matter of form but as a matter of essence.
(iii) Every enquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned and the treatment that he had been receiving in such custody in order to ensure that there is no scope of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the accused's mind; in case the Magistrate discoveres on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should ensure himself that during this time of reflection, he is completely out of the police influence.
(iv) Besides the warning specifically provided for in the first part of Sub-section (3) of Section 164, namely, that the accused is not bound to make a statement and that if lie makes one it may be used against him ias evidence in relation to his complicity in the offence at the trial, that was to follow, he should also, in plain terms, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement.
(v) He should particularly be asked the reason why he is going to make a statement which would surely go against his self-interest in course of the trial and he should, further be told in order to remove any lurking suspicion in his mind that even if he contrives subsequently to retract the confession, it -will be evidence against him still.
(vi) The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and that 'he must apply his judicial mind to the task of ascertaining that the statement he is going to make is of his own accord and not on account of any influence on him. That is what is the meaning of voluntary statement within the provision of the section.
(vii) Lastly, he should also consider it expedient that satisfaction of his conscience as to the voluntary character of the statement is not the only act to be achieved by him but he should leave such materials on record in proof of compliance with the imperative requirements of the section as would satisfy the court that sits on judgment in the case that the confessional statement was made voluntarily. In short, the provision of the statute must be complied with both in letter and spirit.
Coming then to the dieclosure statements, it may be stated that like the judicial confessions they are vitiated by compulsion re-, suiting from the physical torture to which the accused were subjected by the police on the evidence led by the prosecution itself. In that view these statements are inadmissible in evidence. In this I am supported by a judgment of the SuDreme Court in case State of Bombay v. Kathi Kalu : 1961CriLJ856 in which it was held that the information given by an accused person to a police officer leading to the discovery of a fact will be hit by Clause 3 of Article 20 of the Constitution if the information was procured as a result of the compulsion by the police. Otherwise also these disclosure statements cannot be said to be relevant, considering the fact that they have not led to the discovery of any 'fact' in the sense that none of the things discovered can be associated with the deceased. Take first the skull. As already stated it has not been proved to belong to the body of the deceased. Its recovery cannot be therefore be considered to be a recovery of any fact. Take next the pick axe, stick and gunny bag. They were alleged to be stained with blood. The Director Forensic Science Laboratory Jammu has negatived this plea in his report 32/1070/ Exam/crime-8 dated 7-11-1970 addressed to the Superintendent of Police Rajori. These articles are of common use usually found in the houses of villagers and as such their discovery from the house of the accused cannot be considered to be the discovery of any fact. So is the case with waist coat, shirt. Umbrella and torn pieces of blanket and turban. They are common place articles like the pick axe, stick and gunny bag, as also admitted by Lai Din P.W. 4. Their discovery cannot therefore be construed as the discovery of any fact. The discoveries or even the disclosure statements cannot therefore be held to constitute circumstance adverse to the accused.
24. The case of the prosecution is that blood stained shirts were seized from the person of Kalu and Mohammad Hussain but Director of Forensic Science Jammu has excluded the presence of blood on these shirts. Their seizure, therefore, becomes meaningless.
25. It was suggested that Kalu accused disappeared after the dead body was discovered. There is however nothing in the evidence to show that he was present in the village before the discovery of dead body and disappeared only after the news about the such discovery went round. Merely because he was absent from the village when the body was discovered does not necessarily mean that he had left the village on hearing that the body was discovered. In any case it transpires from the evidence of Noora and Hakam Din P. W's. that he was in a nearby village known as Sakri coming towards his home when they met him and told him that he was wanted by Nabi Baksh. It is also in their evidence that the accused consented to accompany them to Nabi Baksh without any protest or hesitation, and actually produced himself before Nabi Baksh in their company. As such it is difficult to believe that he absconded or even tried to abscond after the dead body was dicovered. The conclusion to the contrary recorded by the learned Sessions Judge is absolutely unfounded.
26. In these circumstances I am of the considered opinion that the prosecution has misreably failed to bring home the guilt to the accused or even to prove that the dead body or the head belonged to the body of the deceased. This is actually a case of undetected crime. The responsibility for this situation squarely rests on the Investigating Officer. Shree Inayatullah, whose investigation of the case has been one sided, biased, faulty and incompetent. From what has transpired in this case, it is really dangerous to trust him with any investigation particularly so in a case like the present where death sentence may ensue. It will be only just and fair if he or officers like him are not allowed to play with the liberties of the people.
27. In the result I accept this appeal; set aside the conviction of and sentences imposed on the appellants and acquit them. They shall be set at liberty forthwith. The fine, if paid, shall be refunded to them. The reference shall stand rejected.
Devi Dass Thakur, J.
28. I agree.