Emperor vs Dubai

Manohar Lall, J.—This is a reference u/s 374, Criminal P.C., by the learned Sessions Judge of Singhbhum, dated 11th August 1941, by which he sentenced Dubai Majhi alias Ungu Majhi to death and has submitted the proceedings for the confirmation of this Court. The accused has also preferred an appeal from jail dated 16th August 1941. The appeal and the reference will be disposed of together.

At about 8 A.M. on 29th July 1940, Hira Santalin aged about 25 resident of village Kapui Police Station Chakradharpur, was killed as a result of serious injuries inflicted on her in a field near that village. The prosecution case is that the appellant was responsible for her death by killing her with an axe resulting in instantaneous death. The motive alleged by the prosecution was that owing to the annoyance felt by the appellant for allowing her land, which she had inherited from her deceased father to be looked after by the brother of the appellant Balkan the appellant was so provoked that he killed her own cousin. The appellant and Salkan Majhi are the sons of Uday Majhi. Hira Santalin was the daughter of Bhogan Majhi an elder brother of Uday Majhi. Information of this occurrence was given to the police station at 5 P.M. by Chandra Mohan in the form of a report by Turi Munda of Kapui that the appellant on; coming from village Inchinda had killed a woman named Hira Santalin of village Kapui by cutting her head into pieces with a tangi. The Sub-Inspector of Police after recording the case immediately set out for the place of occurrence where he reached at 7-30 P.M. But before he left the police station he deputed Babu Ramdeo Narayan Singh, a junior Sub-Inspector to proceed to village. Ichinda to arrest the accused who was said to be residing there. This officer reached village Ichinda promptly at about 5-30 P.M. and was able to arrest the appellant who was found lying on a khatia in the house of his father''s sister Salo Santalin. On 1st August 1940, the accused who was forwarded on 30th July 1940, by the Sub-Inspector to have his confession recorded appeared before the Magistrate who after putting questions which will be considered hereafter, satisfied himself that the accused was going to make a voluntary confession. His confession was recorded at about 2-45 P.M. on 1st August 1940. In that confession the accused stated that Salo, his father''s sister, Labho and Bhogla told him that ''Hira Santalin does such and such thing, kill her.'' Thereupon he says that he went and killed Hira with an axe; this confession was retracted when the case came for trial before the Sessions Judge. On the conclusion of their investigation the police sent up the charge sheet on 9th August 1940. The commitment proceedings were concluded with equally commendable speed on 20th September 1940, but the trial before the Sessions Judge did not begin till 4th August 1941. The trial was held with. the aid of assessors three of whom were of '' opinion that the accused was not guilty and that it was unsafe to rely upon confession made by the accused before the Magistrate and also because the chemical examiner''s report did not show that any human blood was found on the dhoti of the deceased. This is how the opinion was recorded by the learned Sessions Judge. Obviously he meant to say that no human blood was found on, the dhoti of the accused. I should have stated that the axe with which the crime was said to have been committed and the dhoti which was seized by the junior Sub-Inspector from the person of the accused when he was arrested were sent to the chemical examiner for report. The result of the chemical examiner''s analysis is that blood was detected in stains on the tangi and on the dhoti but regarding the origin of the blood the report was to the effect that owing to disintegration of the blood stains their origin could not be determined.

The evidence to prove the occurrence resulting in the death of Hira Santalin consists in the main of the evidence of three eye-witnesses, namely Choto Sona Majhi P.W. 3, Madu Ho, P.W. 4 and Bagan Majhi, P.W. 5. It will be useful to give the substance of the evidence given by Choto Majhi. He states that on a ''Monday about a year ago at about 8 A.M. while he was repairing the ridge of the field of Duka Majhi, he heard the cry of Hira ''Oh mother, I am being killed." The cry was coming from a place close to a spring. The witness went towards that side and saw the accused striking Hira with an axe on her head. The witness was then at a distance of 150 yards. In cross-examination he stated that he saw the accused fleeing towards Inchinda village and that he did not see any other person of the neighbouring fields running to the spot although a number of women came to that spring soon afterwards to fetch water. The witness also found a tangi in the field of Bodro where the accused is said to have thrown it after he had attacked Hira. The cross-examination of this witness is short and nothing has been elicited which would lead us to hold that the evidence of this witness should not be believed. The next eyewitness is a boy aged Madu Ho, P.W. 4. His evidence is also to the same effect. He heard a cry when he was taking his buffaloes to his field for yoking them to the plough and he saw the accused giving blows with his axe to the deceased in the field of Labho Majhi. The accused then ran away to his house. The cross-examination of this witness is very short and the only fact elicited was that the witness did not see any one going towards the spring; nor did he see accused bending down at any place near the spring. The last witness is a boy aged eight, Bhagwan Majhi, P.W. 5, who stated that he saw the accused giving blows to Kede, (the deceased was also called Kede in the village) with an axe. He saw the assault from a distance of about 100 yards. The accused then ran away throwing the axe in the field of Bodro. The cross-examination of this witness was recorded in the form of questions and answers. The only questions relevant to the occurrence were whether the witness saw any females collect near the spring, or whether any one else went to that place before the collection of the females and lastly as to the number of blows dealt on the deceased. Having read and considered the evidence of these three witnesses, it is difficult to come-to any other conclusion than that arrived at by the learned Sessions Judge, namely, that these witnesses are competent witnesses whose evidence should be accepted.

The learned advocate for the appellant in-the course of a strenuous and careful argument submitted that the prosecution has not been able to prove the motive which they alleged for the murder. He pointed out that it is difficult to believe that the accused after a lapse of six years would suddenly take it into his head to kill Hira Santalin simply because she was allowing her lands to be looked after by Saltan Majhi. He urged that it was far more likely that in these circumstances the accused would attack Salkan and not Hira. The evidence for the prosecution that the accused was annoyed owing to the attitude of Hira in allowing her lands to be looked after by Salkan Majhi is not convincing. Although a number of villagers of Kapui have been examined nobody was able to give any details of any serious difference which arose between Hira Santalin and the accused on account of her allowing Salkan to look after her land. It must be remembered that Hira Santalin was, at least for the time being, the rightful owner of the lands which descended to her as the sole heir of her deceased father and nobody had any right to interfere as to how she should allow her lands to be looked after. On the other hand the evidence on the record shows that the accused was living in village chinda for about five and six years before the occurrence in the house of his father''s sister and was making a living by preparing biris: see for instance, the evidence of p. w. 14 Rajendra Tanti.

Suggestions were made by the cross-examiner to a number of witnesses that Hira Santalin although aged 25 was still unmarried. No witness while admitting this could say why she remained unmarried; but they all persisted in saying that there was nothing against her character even though she was unmarried at such an age. It was also suggested that there was some sort of criminal intimacy between Salkkan and Hira; but as in the case of the former suggestion, this suggestion remained at the stage of a suggestion only and there is no evidence to support the truth of this suggestion. It is impossible for the Court to resort to any surmise or conjecture and all that can be safely held is that there is no evidence to support the motive for the occurrence as was suggested by the prosecution; nor was there evidence to support the motive which lias been suggested on behalf of the accused in cross-examination although this motive so suggested finds place in the confession.

The prosecution also relies upon the confession which was retracted. The learned advocate on behalf of the appellant argued that no reliance should be placed upon this confession not only because it had been retracted but also because it has not been re. corded in accordance with law. He argued that the provisions of Section 164, Criminal P.C., had been violated in that the learned Magistrate had not put proper questions which he ought to have put before proceeding to record the confession and in particular reliance was placed upon the case in Jiubodhan Bhuin v. Emperor (''17) 4 AIR 1917 Pat. 475 where Roe, J. in an agreeing judgment thought that it was the duty of the Magistrate to question the accused closely as to his motives in making a confession before the confession can be recorded. A large number of authorities were also cited by the learned advocate where apparently contradictory views have been taken-as to the nature of questions which should be put to the accused by the Magistrate who proposes to record the confession of that accused. It may be said that at a proper place when it is necessary to examine that question it will be found that the various dicta of the learned Judges had special significance with regard to the facts of the case which arose for decision before them. It is enough in the present instance to point out that in the decision of this Court in the Full Bench case in Ghinua Oraon v. Emperor AIR 1918 Pat. 179 the matter with which we are concerned was considered where the learned Chief Justice who delivered the judgment of the Pull Bench pointed out, if I may say so with respect, the correct view of the matter at page 301:

The last objection that the confession was on the face of it bad as it did not disclose all the questions and answers put and received must also fail. No form of questions is prescribed by Section 164(3) from which the Magistrate must satisfy himself that he believes the confession was made voluntarily. The questions recorded as having been put and the answers given as well as the demeanor of the appellant may well have convinced the Magistrate that the confession was a voluntary one, and there is no reason to suppose that the recorded statement does not record all the questions put. Moreover, u/s 533 a defect in the compliance with the provisions of Section 164 or Section 364 can be cured by evidence taken by the Court before which the confession or statement of the accused person is tendered. In the present case the Magistrate was examined by the Court and deposed that the statement was recorded as given and that he was satisfied that it was voluntarily made.

Having in view these observations, I now approach to consider the question raised by the learned advocate as to the admissibility of the confession of the present accused. I find that the Magistrate first satisfied himself as to the date and place where the as caused was arrested and the place or places where he was kept and the place where he was last in custody before he appeared before the Magistrate. After that he put to him the usual question of warning that he was a Magistrate and that any statement which may be made by the accused before him would be taken down and liable to be used against him and therefore he was not bound to make any statement. The learned Magistrate then put to him this question: "If you want to make any statement of your own free will you may do that." The answer by the accused was: "I want to make statement of my own accord." The learned Magistrate thereafter put to him this question: "What statement do you want to make?" The accused thereupon gave the answer which has already been stated by me. After this the Magistrate gave his certificate that he explained to the accused that he was not bound to make any confession and that if he does so, it will be used as evidence against him and that he believed that the confession was made voluntarily and did contain the true and full account of the statement made by the accused and was read over to the person who made it and admitted by him to be correct. Then follows another certificate by the Magistrate which gives briefly the reasons which the Magistrate had for believing that the statement by the accused was made voluntarily. The certificate is to this effect:

The warning was very clearly explained to the accused and he was given sufficient time to deliberate. He insisted on making a confession.

Although it is not stated how much time was given to the accused to deliberate, the matter was made clear when the learned Magistrate was examined as a witness on behalf of the prosecution. He stated that he was satisfied that the confession was voluntary and that he gave the accused two hours after giving the warning to enable him to collect his thoughts and to deliberate. It seems to me that in this case there is no violation of any of the provisions of Section 164, Criminal P.C. All that the law required was that the Magistrate should put some questions to the accused so that it may appear satisfactorily that the accused was making a voluntary statement. The learned Magistrate has shown from the questions and also from his evidence that he was of the opinion that the confession was voluntary and was made after due warning and after giving the accused sufficient time" to collect his thoughts and to deliberate. If in these circumstances the accused insists upon making a statement how can it be held that such a statement was made under the influence of any tutoring or as a result of undue suggestion. No suggestion has been made on behalf of the accused that he made this confession as a result of some sort of illegal pressure or inducement. All that he says to the learned Sessions Judge is that he did not confess in answer to the question "Did you confess before this Magistrate (Mr. B.K. Dutt) that you killed Hira."

For these reasons I am satisfied that the confession in this case was a voluntary confession and is admissible in evidence. The confession has been retracted; but as I have believed the evidence of p. Ws. 3, 4 and 5, I hold that the confession has been sufficiently corroborated also. It was argued that there was a discrepancy between the date of occurrence as given in the evidence of the prosecution witnesses and as is to be found in the first information report. In that report which is at p. 3 it is stated that: "coming from village Ichinda on Sunday, Dubai Santal killed a woman named Hira Santalin." It is, therefore, argued that the occurrence took place on Sunday and not on the following day. It is true that there is this discrepancy, but the statement in the first information report is not a piece of substantive evidence. Its chief purpose is to acquaint the Court with the case which the prosecution has set out at the earliest stage and the statement is admissible merely to corroborate or contradict the maker thereof. 1 In this case the report was of Turi Munda.'' He was examined as the first witness by the prosecution. He definitely stated in his evidence that he received this information on the Monday at 10 A.M. from Salkan Majhi. He was not cross-examined that he had made a different statement in writing in the first information. It must be concluded, therefore, that the record of the first information where Sunday is put down is a mistake and is due to some oversight. It is curious to observe that in the post mortem report in cols. 8 and 9 a similar mistake is to be found. At p. 18 it is stated that in cols. 8 and 9 of the post mortem report, the date should be 30th July 1940, and not 29th July 1940 as noted by mistake. Our attention was also drawn to the evidence of Salkan which was admitted u/s 83, Evidence Act. That evidence was given before the committing Magistrate, but before the trial began in the Court of the learned Sessions Judge, Salkan was dead. In that evidence he also stated that "on a Sunday (I cannot say how long ago) at about 8 or 9 A.M. Sinhu Majhi informed me that J Dubai Santal had killed Hira." There is no cross-examination as cross-examination was declined. As the witness was not available for examination in the Court of Session, it is difficult to find out how he came to make that mistake. The evidence of the other eyewitnesses is clear and emphatic and is supported by the evidence of the villagers including respectable witnesses that the occurrence was reported to and by them on 29th July 1940 and not on 28th July 1940.

It was also argued that the story that the accused concealed the axe in the field is not believable. The foundation of the argument was that one of the witnesses had said that he had seen the accused bending down in order to throw the axe in the field. Another witness says that he was not bending down. It was also suggested that the accused could have thrown away the axe as there was no reason for him-to have tried to hide the axe as is now sought to be made out in the evidence. Lastly, it was pointed out that the axe was not found concealed but was lying completely covered with mud and water in the field of Bodro (see the evidence of the investigating officer, P.W. 16). In my opinion these discrepancies are not material. Witnesses are clear that they saw the accused throw the axe. Whether the axe fell down and became covered by some earth or not the conclusion must be drawn on the evidence that it was the accused who had the axe in his hands and he threw it away. For these reasons I am of opinion that the accused has been rightly convicted.

There remains the question of sentence which should be passed upon the accused. It was argued strenuously on behalf of the appellant that when the prosecution has failed to prove the motive, there was no reason why this Court should not accept the motive which is given in the confession by the accused, namely, that he at the instigation of Salo and others after being fed with meat and rice went on to the field and killed Hira, in order to save the honour of the family. It may be noticed that the strength of this argument depends upon the assumption that it has been proved that Hira was leading a vicious and immoral life in that village. There is no evidence as has already been observed in support of that state of affairs. Neither is there any evidence that the accused was instigated by Salo and others to go and kill Hira. It is, therefore, impossible to give the accused the benefit of this assumption for a cold-blooded crime like the present one. It has not been established that the accused came unarmed and picked up the axe which was lying near about at the place of occurrence. On the other hand the evidence is that the accused was seen going towards the field of occurrence, that the axe was in his hand and after using it with deadly effect he threw it in the field and then ran away to his house in Ichinda. It may be that the accused had some other motive for the crime which is not ascertainable; but when the facts are clear, the onus is upon the accused to show the circumstances which would bring the offence within the category of those offences where capital sentence should not be imposed. I see no extenuating circumstances in this case, and I do-not see why the sentence of death should not be passed in this case. Accordingly I confirm the sentence of death imposed upon this accused by the learned Sessions Judge.

Before parting with this case I desire to make some observations with regard to the delay in bringing this accused to trial. As already stated the accused was arrested on 29th July 1940 at 5-30 P.M. The investigation before the police was concluded with commendable speed and the commitment proceedings were also over at a very early date, namely, on 20th September 1940. Thereafter it is regrettable to find that this accused was not placed for trial before 4th August 1941. It is impossible to discover from the order sheet of the learned Sessions Judge as to why he did not think of fixing the date for the trial in this case before 11th March 1941. The first order of that, date shows that the learned Sessions Judge fixed 28th April 1941 for trial. On 25th April 1941 upon the information received by the Public Prosecutor that Chaibasa was very badly affected with small pox and that the epidemic had now spread in a virulent form especially in the vicinity of the court premises, the trial of the case was postponed. On 10th May 1941, the case was fixed for trial for 23rd June 1941; but the trial did not begin even on this date. On 16th June, the learned Sessions Judge recorded an order in the order sheet that as his term of appointment expires on 25th June, and the permanent Sessions Judge is not likely to resume his duties before the 25th, it is not possible to hold the sessions trial of this accused. The case was accordingly adjourned. Ultimately on 2nd July 1941 an order was passed that this trial should take place on 4th August 1941. Then the trial at last began. But on the other hand after the reference was received in this Court from the Sessions Judge who had passed his orders on 11th August 1941 and after the memorandum of appeal dated 16th August 1941 was received the paper-book was made ready with the utmost expedition on 27th August 1941 and the case was taken up on the date fixed for hearing, namely, 1st September 1941 and is being disposed of on the second day of hearing today.

Rowland, J.

I agree both as to the convection of the accused and as to confirmation of the sentence. I agree also as to the admissibility of the confession. We were invited to treat every word of Section 164, Criminal P.C., as being specifically mandatory so that any noncompliance with a single particle of that section will become an incurable illegality, with the result that a confession purporting to be recorded under that section not only loses its character as a record which can go into evidence u/s 80, Evidence Act, but also has a defect not curable, under the provisions of Section 533, Criminal P.C., by calling as a witness the Magistrate who recorded the confession. It was argued that the Privy Council case in AIR 1936 253 (Privy Council) , and decisions following it, are to this effect. Such a view, however, is not supported by the observations of their Lordships in that decision. Their Lordships referred to, without discussing, a number of cases which they said turned on the scope and effect of Section 533 and upon the extent to which that section operated to cure defects and to enable statements or records not complying with the requirements of the material sections of the Act to be made admissible in evidence. Their Lordships pointed out that, in the case before them,

no question of the operation or scope of Section 533 arises and their Lordships desire to express no opinion on that matter. It is here conceded that the '' Magistrate neither acted nor purported to act u/s 164 or Section 364 and nothing was tendered in evidence as recorded or purported to be recorded under either of those sections.

In Emperor v. Kommoju BrahmanA.I.R. 1940 Pat. 163 in which Nazir Ahmad v. Emperor AIR 1936 P.C. 253 is referred to, the confession purported to have been recorded u/s 164 but the Magistrate''s memorandum did not disclose that he ''had actually questioned the accused in the manner contemplated by the section, although he had given the accused the warning. It was held by Varma, J., in that case that the confession could not be admitted in evidence. Meredith J. in a concurring judgment said that the Magistrate

did not, in my opinion, comply with the mandatory provisions of the second part of that clause, and consequently he had no jurisdiction to say that he was satisfied that the confession was voluntary.

This obiter dictum goes beyond anything that was said by Varma, J. who delivered the leading judgment and is not supported by anything that can be found in the Privy Council decision in Nazir Ahmad v. EmperorA.I.R. 1936 P.C. 253. On the other hand, in Emperor v. Ramsidh Rai AIR 1938 Pat. 352, the confession was admitted in evidence, Khaja Mohammad Noor J. observing:

In recording the confession in this case the learned Magistrate omitted to put any question to the accused whether he was confessing voluntarily. No doubt the learned Magistrate gave him a warning but the Courts before whom the confession is used have materials on which they can be satisfied that the confession was in fact voluntary. In the present case the record does not show that any question was asked by the Magistrate in order to ascertain that the confession was made voluntarily. It appears, however, that in giving answer to the warning of the Magistrate, Jagadish himself stated that he was making the statement voluntarily; and the Magistrate has in his evidence stated that he was satisfied that the confession was voluntary.

There is no conflict between this decision and that in Ram Babu Jadav v. Emperor AIR 1938 Pat. 60 a decision cited before us in which a confession was excluded from consideration, the accused having stated at the trial that he had been induced to make the confession and that it was not voluntary. It was observed that the object of recording both questions and answers by the Magistrate before recording the confession itself is to enable the trial and the appellate Courts to form their own conclusions as to the voluntary nature of the confession and it was observed that the Magistrate''s failure to observe an important provision of the Code intended to safeguard the voluntary nature of the confession had the result that neither the record nor the Magistrate''s deposition gave this Court the necessary materials for dealing with the allegation that the accused had confessed at the instance of various Police Officers on the understanding that he would be made an approver. The effect of this and the previously cited decisions is that it is a question of fact for the trial Court whether a confession was voluntary or not. I agree with my learned brother that the law was authoritatively stated in the Full Bench decision in Ghinua Oraon v. EmperorA.I.R. 1918 Pat. 179, and in my view there is nothing in Nazir Ahmad v. Emperor AIR 1936 P.C. 253 and the subsequent decisions to detract from its authority. Those decisions have made no change in the law as laid down in the Full Bench decision.