Dikson Mali and Another vs Emperor

Manohar Lall, J.—This is a jail appeal by three persons who have been convicted by the learned Agency Sessions Judge of Koraput by his order dated 2nd April 1941, for an offence u/s 302, Penal Code, and sentenced to transportation for life. The case of the prosecution is that on 30th December 1940, the three appellants jointly beat to death the deceased Buda Mali under a mohua tree in village Motigam. The appellants are men of different castes residing in that village. It has been amply established by the evidence that the appellant Dikson Mali had a quarrel with the deceased because the latter [sic] suspected him of illicit intercourse with his wife Naik Buda. It is enough to refer to the evidence of Urdhab Mali, the father-in-law of the appellant, who states that in the last Dasahra his daughter came to his house and complained that the appellant was ill-treating her because he suspected her of being too friendly with Buda Mali. There upon the witness went to Motigam where the appellant resides and called a panchayat at the house of the Gauntia. The panchas assembled, sent for Dikson and Buda and warned Buda not to go to Dikson''s house and told Dikson not to chastise his wife any more. This evidence is supported by the evidence of the Gauntia himself P.W. 12, as well as by the evidence of Ghansi Ganda, P.W. 3, who is the Ganda of the village. The prosecution has further adduced some evidence to establish that notwithstanding the panchayat the deceased did not give up his attentions to Naik Buda. For instance P.W. 7 relates to an incident which happen, ed on Wednesday previous to the date of occurrence in these words:

I heard of Buda''s death on Tuesday. The previous Wednesday I went to Mohana Shandy. On my return home I saw Dikson and Buda in the path. They were quarrelling and I heard Dikson say "Take care you are having illicit intrigue with my wife. I shall see what I can do. I interfered and took Buda Mali with me towards my village. Dikson went off.

P.W. 4, Bara Mali, stated that he knew that Buda used to go to Dikson''s house now and then, that Dikson accused Buda of illicit intimacy with his wife and told him not to come to his house and that he reprimanded his wife for her intimacy with Buda�the evidence is not clear as to the time about � which the witness is speaking.

Early in the morning of Tuesday 31st December 1940, Butia Mali aged about ten went to his nigar field to watch the crop, but on the way he found his father, the deceased lying dead underneath a mohua tree, with injuries on the head, lobe of the ear and right side of the face. Upon an outcry raised by him Jogu Mali and another who were in the field close-by came running up. The boy later related the incident to Ghari Ganda and the Gauntia and was sent to the Police Station Jorigam which is 27 miles away from his village Motigam, and tfiere he lodged the first information at 8 P.M. In that information he stated that on the previous night while he was cooking his food after the lamps were lit and the deceased was lying on a cot one person came and called his father to follow him with the adda (measure) to purchase kachya paddy; upon hearing this the deceased went away holding the adda and a stick and never returned alive. The boy suspected that the persons of Jhikarpada to whom the deceased had advanced loans may have come and taken his father with them upon the pretext that they would give him paddy. The Sub-Inspector reached the scene of occurrence on 1st January, at 3 P.M. He says that upon the information received from Chota Mali (P.W. No. 8) he sent for the appellant Ransai Lohara and learnt from him about certain weapons which will be found in the house of the three appellants. Accordingly on a search being made a heavy stick was recovered from the house of the appellant, Dikson Mali. The appellant Ransai Lohara was taken in custody on 2nd January 1941. The Sub-Inspector further states that all three accused took him to a river and on their information a ibag containing rupees was recovered from a bush there--the bag was recovered by accused 2 and was found to contain Rs. 5-6-6. Thereupon it is stated that all the accused persons again took the Sub-Inspector to the house of one Majid Khan and from under the eaves of that house the appellant Ransai Lohara took out from a pot a red bordered cloth. It is suggested by the prosecution that the net bag contained Rupees 10 and was on the person of the deceased when he left the house on the fatal night and also that the red bordered cloth was wrapped round the waist of the deceased when he was done to death under the mohua tree. It may be stated that as the result of a search a hammer was produced by Ransai Lohara and a pen-knife was produced by Chhoti Bairagi from their respective houses.

The three accused in custody were sent from the village on 4th January 1941. They were produced before a Magistrate for "recording their confessions. The confessions were recorded by Mr. U.N. Rath, First Class Magistrate of Naurangpur on 9th January 1941A.M.11 In the confession all the three accused stated that the police arrested them on a Saturday, that after arrest they were taken to Jorigam where they were kept for a day and that they reached Naurangpur on 8th January 1941 and were lodged in the jail. All the accused were placed in charge of an armed police peon, Laximnarayan. The learned Magistrate on being satisfied that there was no police officer in Court or in place whence the proceeding could be seen or heard except the armed police peon proceeded to question the accused and on being satisfied that the confessions which they wanted to make were voluntary he recorded their respective confessions. These confessions are very brief and are to the effect that the appellant Dikson Mali paid a sum of four annas to Ransai Lohara to call the deceased to the threshing floor whereupon the other two accused went there and Ransai Lohara struck the deceased on the head with an iron hammer, Dikson struck him with a lathi and Chhoti Bairagi struck him with a pen-knife. In the committing Magistrate''s Court where the proceedings terminated on 1st March 1941, the accused persons retracted their confessions and asserted that the whole of the evidence given by the prosecution was false. This retraction was adhered to at the trial before the Agency Sessions Judge when Dikson Mali said that the Sub-Inspector beat him to make a confession. He added that the other two accused were not related to him and that he would not have committed the offence in their presence. The examination of the appellant Ransai Lohara u/s 364, Criminal P.C., shows that the learned Sessions Judge asked him the following questions: "You have heard your statement in the lower Court. Have you anything to say?" The statement in the lower Court was:

Q. You have heard the witnesses. Have you anything to say?

A. What I am to say?

Q. Have you got any witnesses?

A. No.

Q. Can you engage a Vakil?

A. No.

The answer as recorded by the learned Sessions Judge is as follows:

It is correct. Dikson gave me annas four and asked to call Buda Mali. Then I went and called him and went away. I said the other accused had killed him, because the Sub-Inspector said I had done it. Deceased did not belong to my caste; why should I do it.

It seems to me there has been some error in recording the question. It may be that the learned Sessions Judge intended to ask him whether his statement which was in the form of a confession to Mr. U.N. Rath was correct. The appellant Chhoti Bairagi was asked a similar question. The record in this case also suffers from a similar defect. The appellant answered that the Sub-Inspector J arrested him and seized the knife from his house, that he did not go with the other accused to the scene of the murder and that he did not cut the deceased''s ear. From the above brief outline of the case of the prosecution it is obvious that the conviction rests mainly upon the retracted confessions. It has been held in a large number of cases that although it is not illegal to act upon a retracted confession so far as the maker thereof is concerned provided the Court believes it to be true, but generally as a rule of prudence it is unsafe to rely upon a retracted confession made by an accused unless it is corroborated in material particulars so as to satisfy the Court that the confession may be acted upon, and that a retracted confession is very slight evidence indeed against the co-accused who are named as participants in the crime. The appellant Dikson Mali had the strongest motive to do away with the deceased but unfortunately there is no evidence at all upon which it can be held that his retracted confession is true. There is no evidence that this appellant gave four annas to Ransai Lohara, that Ransai Lohara took the deceased to this appellant and that this appellant struck the deceased with the lathi at the place of occurrence. His conviction, therefore, must be set aside.

The appellant Chhoti Bairagi had no motive whatever to join Dikson in the fatal assault on the deceased. There is no corroboration of his retracted confession that he went to the threshing floor and that he was present when Lohara struck the deceased with the hammer and Dikson struck him with lathi. It may be noted that in his confession which was subsequently retracted so far his own part was concerned he stated:

I was afraid and moved aside. They said to me-''you also asault him. I was afraid I struck him in the side of the year, with a knife. By that time he died.

This appellant belongs to a different class and there is no reason why he should have joined Dikson or Lohara in killing the deceased. His confession which has been retracted remains absolutely uncorroborated on any material particular. In his case also I would set aside his conviction. The case of Ransai Lohara stands on a somewhat different footing. The prosecution has adduced some evidence that this appellant was the person who was last seen alive with the deceased, that it was this accused who called the deceased after the lamps were lit, that he produced the money bag and the red bordered cloth which were on the person of the deceased and that the deceased left his house alive that night with him. His case therefore requires careful consideration. The accused in the present case had told the committing Magistrate that they were too poor to engage a lawyer to defend them. In the Sessions Court a lawyer was engaged at the expense of the Crown to defend them but he appears to have conducted the defence in a most perfunctory manner. I would like to re-call here the following observations made by a Division Bench of this Court in Darpan Potdarin Vs. Emperor, .

We desire to make some remarks about the defence of prisoners who are too poor to instruct lawyers on their own account. Those whose duty it is to select lawyers to defend at the expenses of the Crown should not treat the selection as a matter of patronage for the benefit of the lawyer so appointed. The selection should be made from among young men of marked ability. We have frequently observed that the persons actually appointed do their work very badly and conspicuous opportunities for cross-examination and obvious arguments are entirely ignored. In such circumstances also the trial Judge should remember that he has the duty not only to the prosecution but to the defence. He has the police diary in front of him and should use his greater experience to cross-examine the witnesses when he sees that the defence lawyer is incompetent. He should not do this unnecessarily but only when it is desirable in the interest of justice.

As I shall presently show, the record of this case gives abundant evidence of the fact that the defence lawyer failed in putting obvious questions to the witnesses for the prosecution and the learned Judge did not care to use his experience to cross-examine the witnesses even though the police diary and the record of the committing Magistrate''s Court were in front of him. At the outset it must be held that no explanation has been given by the prosecution as to why the accused Ransai Lohara who was arrested by the Sub-Inspector on 2nd January 1941, was kept by him in custody for more than 24 hours. Further no explanation is offered as to why it took five days to bring the accused before the learned Magistrate at Naurangpur. The confessions of the accused were therefore recorded after they had been in the custody of the police for six days and in the presence of an armed police. Again the Magistrate did not ask the accused as to why they were making the confessions or as to the motive which urged them to make these confessions. I desire to draw attention to the following remarks of Cave, J. in Reg. v. Thompson (1893) 2 Q.B.D 18 :

I would add that for my part I always suspect these confessions, which are supposed to be the offspring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is on very rare occurrence for evidence of a confession to be given when the proof of the prisoner''s guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; a desire which vanishes as soon as he appears in a Court of Justice.

Lord Coleridge, C.J., Hawkins, Day and Wills, JJ., concurred. The remarks of Straight Offg. C.J., in Queen-Empress v. Babu Lal 6 All. 509 are equally instructive and apposite. I now proceed to consider the extent of the corroboration which is said to be afforded by the evidence of prosecution to the retracted confession of this appellant. (His Lordship reviewed the evidence in this respect and continued.) I, therefore, conclude that there is no evidence on the record to justify the conclusion that the confession of this appellant even if it is strained to mean that he went out with the deceased on Monday night is corroborated and may therefore be accepted as correct.

It has been strongly suggested that the discovery of the money bag and the piece of red bordered cloth are ample corroboration of the truth of the retracted confession of the appellant. The money bag was examined by us. It appears to be an ordinary money bag which villagers use. There is no distinguishing mark on it to show that this was the identical bag which was with the deceased on that night. Further, it is impossible to believe that the money bag would be thrown away in a bush with the coins in it. The boy, Butia Mali, stated in the first information that his father had Rs. 10 in his bag, but in the evidence before the committing Magistrate he stated that he could not say how much money the bag contained on that date. The evidence of the Gauntia is that all the three accused took the search party to the river Updadi and there the appellant picked up this bag from underneath a bush. The Sub-Inspector says that all the three accused took him to the river and on their information a bag containing rupees was recovered from a bush there�-accused 2 took out this bag. This does not clearly suggest that the applicant had put the bag in the bush but that it was the hand of the appellant which took out the bag. The evidence of the prosecution rather suggests that some of the three accused knew that the bag would be found in the bush. Upon a careful consideration of the circumstances in which this bag was recovered, the fact that a small sum of money was still in it, that it was thrown in a bush near a river and specially that no mention is made of this bag and the money in it in the confession of the appellant, I feel great doubts as to the truth of this story.

The prosecution also relied upon the recovery of a red bordered cloth which was alleged to be on the body of the deceased on that night. Here again the circumstances are still more peculiar. This red bordered cloth was not recovered from the house of the appellant but was recovered from the eaves of the house of one Majid Khan. There is no evidence on the record to show who was living in that house and as to whether the eaves of the house were accessible from outside or not. There is no special distinguishing mark on this cloth which was examined by us and which is an ordinary piece of dirty cloth that would be used by a villager. The Sub-Inspector states in his evidence that he did not see any blood stains on this cloth. This is not correct. The record shows that the Sub-Inspector thought there were blood stains on this cloth, but as the cloth was never sent to the chemical examiner he now says that he did not see any blood stains on the cloth. The appellant does not state in his confession that he removed the cloth from the body of the deceased and kept it in Majid Khan''s house. I am not satisfied that the cloth has been proved to be the identical cloth which was on the person of the deceased on that night. There are no particular marks on it and it is somewhat remarkable that there are no blood stains on it if the deceased was done to death in the manner suggested when he had this cloth on. The recovery of the cloth from the eaves of another man''s house rather supports the suggestion that attempt was being made to find out some circumstantial evidence to connect the appellant who was the only Lohar in that village with the crime after the enquiring officer had made up his mind that the head of the deceased was smashed with a hammer upon which again no blood marks were found.

Having given the case my most anxious consideration I am unable to hold that it is safe to rely upon the retracted confession of this appellant also. The confession has not been corroborated in any material particular, on the other hand, there is evidence such as, it exists upon the record which disproves the strength of the links which are suggested to be found in the confession. I would, therefore, give this accused in any event the benefit of doubt and hold that the truth or voluntariness of his retracted confession has not been established beyond reasonable doubt. Before parting with the judgment I desire to observe that I have not allowed myself to be influenced in the least by what is stated in the police diary in accordance with the decision of their Lordships of the Judicial Committee in Dal Singh v. Emperor AIR 1917 P.C. 25 where it was pointed out that the only legitimate purpose for which the diary may be used was to assist the Court which tries the case by suggesting means of further elucidating points which need clearing up, and which are material for the purpose of doing justice between the Crown and the accused but not as containing entries which can by themselves be taken to be evidence of any date, fact, or statement contained in the diary. For the reasons which I have given I would allow the appeal, set aside the convictions of all the appellants and direct that they may be set at liberty forthwith. We are indebted to Mr. S.C. Chakarvarty for assisting us by his careful argument as amicus curies.

Meredith, J.

As my learned brother has pointed out, this case depends mainly on the retracted confessions. This being so it is most unfortunate that the learned Magistrate, who recorded these confessions, has laid himself open to criticism. I do not understand why the presence was necessary while the confessions were being recorded of a peon of the armed police. This armed policeman may not have been concerned in the investigation of the crime, or the arrest or production of the accused, as the Magistrate states, but, one may ask, how could the accused know that? The way they looked at it must have been that a policeman was present. If no subordinate official unconnected with police was available, surely the Magistrate could have taken the slight risk of remaining alone for a short period with the person confessing.

Then in each case the Magistrate omitted to ask the one simple and obvious but vital question "Why are you making this confession, knowing that it may be used against you?" I desire to draw attention to my remarks in Emperor Vs. Kommoju Brahman, . It is extraordinary how Magistrates despite constant admonitions from the High Court, keep on omitting to ask this obvious and necessary question, and I make the suggestion to Government that this question be included in the printed form which is used for recording confession. In the case of the appellants, Dikson Mali and Chhoti Bairagi, there is practically no corroboration of their confessions, and I agree with my learned brother that the case against them is not proved. In the case of Ransai Lohara, I am afraid I am unable to concur in some of the observations of my learned brother, but since he feels there is doubt I agree that the appeal should be allowed in this case also.