Koli Jera Jodha and Another vs State

Chhatpar, J.—This is an appeal from an order of conviction of the two Appellants of an offence u/s 302 read with Section 34 or u/s 302 alone and sentence of transportation for life imposed on both the Appellants by the Sessions Judge, Sorath, for the murder of one Sava Govind near the village Ambaliala in the Sessions District of Sorath.

The deceased Sava was working as a labourer and it is established in evidence and which has not been disputed that he had abducted Sumel a girl of about 20 years, who was a sister of the second Appellant Vagha Lakha and cousin of the first Appellant for the purpose, as the prosecution says, of selling her. This event happened on 3-3-1953. The girl was restored to her brOrs. two or three days thereafter.

A complaint for abduction was also filed against the deceased Sava Govind. This constituted a very strong motive for revenge by the near relatives of the girl including the present two Appellants. On 7-3-1953 at about 8 P.M., the deceased Sava Govind had gone to the field of Kana Harji, which is on the outskirts of the village, to answer a call of nature. He had a water jug in his hand and no other instrument or weapon.

It was alleged that he was accosted by the two Appellants dicing with three Ors. named Koli Bhana Kala, Naja Lakha and Jodha Ranchhod, who all assaulted him with sticks, as a result of which he received numerous injuries, mostly upon his legs, both of which were fractured. The deceased also received a blow on 4aw which was also fractured. He became unconscious and was taken to his house, where tie expired after about two hours. The scene of the offence is at a distance of about 300 feet from the outskirts of the village and the deceased''s house was the last one on the outskirts. Consequently, both the accused-Appellants as well as the other three persons were put on trial and charged with offences under Sections 147, 149 and 302, Penal Code. The three other persons were acquitted and the present Appellants were convicted and sentenced as above stated.

The prosecution case rested upon the evidence firstly of one Govind, who is alleged to be an eye-witness to the assault, secondly on the statements made by the deceased to several persons, while he was lying seriously injured and in expectation of death. There was no dying declaration before any Magistrate. Thirdly, the prosecution relied upon two confessions made by the Appellants; fourthly, on the circumstantial evidence of the accused having been seen near the scene of the offence soon after the offence was committed; and lastly on the discovery of iron-ringed sticks alleged to have been used by the Appellants and which were recovered from places of concealment pointed out by the two accused respectively.

That there was a strong motive for the crime Cannot for a moment be disputed and the learned advocate Mr. Dave for the Appellants has not addressed us on this score. The learned Sessions Judge has not relied upon the evidence of Govind as an eye-witness, holding that he had not witnessed the incident of the assault itself, but he was the first man to come on the scene of the offence; nevertheless, his evidence becomes relevant as a piece of circumstantial evidence along with other witnesses, who had come on the scene of the offence and seen the two Appellants near it soon after the occurrence.

The dying declaration was made by the deceased implicating the present Appellants along with Bhana Kala and Naja Lakha as his assailants to the Pasaita Devait, to his mother Monghi and Anr. person Bhikha. These names of the accused were also contained in the first information report, which recites that they were given by the deceased. The fifth accused Jotha''s name was not given by the deceased and it does not appear why he was roped in as one of the assailants; but as he was been acquitted, we need not discuss the question further. The fact that the deceased had given out the names of his assailants including the two Appellants has been satisfactorily established. It is also corroborated by the first information report.

Mr. Dave has questioned it on the ground that the deceased having received an injury on the jaw, which was fractured, could not have been in a condition to speak. He may not have been capable of carrying on ordinary conversation with a broken jaw but it is in evidence that a definite question was put by the Pasaita Devayat to him as to who had .caused him the injuries and he just mentioned the names of the four persons. It was quite possible for him to'' have spoken these words in spite of the injury on the jaw. The corroboration of the disclosure of the names of these persons in the first information report dispels any doubt that the deceased did give out their names.

We may next deal with the circumstantial evidence against the Appellants apart from the confessions with which we will deal later as there are some legal objections raised in connection with them. This circumstantial evidence is of several witnesses of whom Madha Bala, Raja Naran and Bhana Dahya were certainly not interested. The witness Govind, who posed as an eye-witness but was found by the learned Sessions Judge as not to have witnessed the commission of the cirme but was. the first person to come to the scene of the offence and seen the accused including the Appellants can also be relied upon for the purpose of proving that the two Appellants were seen near the scene of the offence immediately after the assault on the deceased.

Now, as stated above, the assault had taken place only about 300 feet from the village and several witnesses who say that they saw the Appellants along with Ors. during the interval of time when the deceased was struck down and raised cries on which they came on the scene of the oilence appears to us to be natural. Nothing has been said at least against the above witnesses, who are disinterested and had no motive to side with either the accused''s or the complainant''s party. We therefore accept the finding of the learned Sessions Judge in this respect that there is sufficient circumstantial evidence to connect the two Appellants with the crime taken with the strong motive stated above and the discovery of the weapons used by the Appellants from the places of concealment at their instance.

The finding of the weapons has been, challenged by the learned advocate for the Appellants on the ground that it is not shown that they were in their respective exclusive possession. But reading the two panchnamas it is clear to us that the two iron- ringed sticks were lying in places of concealment and since they were respectively pointed out by the Appellants, the accused should be deemed to have the special knowledge and therefore possession. We therefore repel this contention of the learned advocate and hold that there is no irregularity in. securing the two weapons and making the discovery as a relevant factor to be used against the Appellants u/s 27, Evidence Act.

We next deal with the two confessions of the Appellants. The Appellants were arrested on 0-3-1953 at about 8 p. m. They were sent to the judicial custody on 10-3-1953 with a memorandum that the accused wanted to confess. Their confessions were actually recorded at 1-30 p. m. on 11-3- 1953. The memorandum mentions the time of receipt as 8-30 in the morning of 10-3-1953. So the confessions were recorded about 29 hours after the Appellants were taken into judicial custody.

The first Appellant Jera in his confession recites the fact of abduction of the girl Sumel and her restoration a few days thereafter. Then he refers to the assault and states that the deceased met the(SIC) in the Khetar of the Patel and he assaulted their;, whereupon they beat him with sticks; they wanted to give a little beating but overdid it. The second Appellant Vagha after reciting the fact of the abduction states that on the next day of the restoration of the girl, the deceased had threatened them if they took any action against him. Thereafter he states how the incident of the assault had taken place and that the deceased had first abused and assaulted them whereupon he dealt him a single blow, which felled him down, whereafter the first Appellant dealt the blows on the legs of the deceased which caused the fractures. He also states that he dealt some blows with the blunt end of a knife to the deceased. Thereafter they ran away, while the deceased was crying loudly.

These confessions were retracted in the Magistrate''s Court, and although the recent rulings of the Supreme Court have clarified that there is nothing in law to prevent a Court from basing a conviction solely on a retracted confession prudence required that a retracted confession should be corroborated in some particulars, though not in every particular. We had occasion to refer to these rulings of the Supreme Court reported in- Rameshwar Vs. The State of Rajasthan, and - Kashmira Singh Vs. State of Madhya Pradesh, ); and a subsequent ruling of the Bombay High Court in - L.S. Raju and Others Vs. The State of Mysore, ), wherein the principles laid down by the Supreme Court have been summarised in our judgment in - ''Rajput Abhesang Veraji v. State'', Criminal Jail Appeal No. 56 of 1953 (SAU) (D). We need net therefore discuss the law over again.

There is more than sufficient corroboration in the present case. There is first the circumstantial evidence of several witnesses who came on the scene of the offence and saw the two Appellants near it soon after the occurrence of the crime. There is also the dying declaration of the deceased to several persons and corroborated by the first information report, wherein the names of the present Appellants have been disclosed and there is also the discovery of the two weapons with which one Appellants had dealt the blows to the deceased. So there is hardly any doubt that the retracted confessions are supported in material particulars by independent evidence on the record which has been accepted by the learned Sessions Judge and with which we agree.

But Mr. Dave the learned advocate for the Appellant has challenged the legality of the confessions. The Magistrate has not been examined. The ground of attack is two-fold. Mr. Dave first argues that the confessions do not show the exact words used by the Magistrate in warning the Appellants as required by law u/s 164(3), Code of Criminal Procedure and the exact answers given by the Appellants; his second ground is that the Magistrate -had not given sufficient reflecting or cooling time to the Appellants after they were sent to judicial custody to make up their minds whether to confess or not. He particularly relied upon the want of specific evidence saying that at the time when the Appellants were taken in magisterial custody they were told that their confessions would be recorded.

Now Section 164 required three things to be done: (1) it enjoins on the Magistrate the duty to explain to the person making the confession that he is not bound to make a confession; (2) that if he makes a confession, it may be used as evidence against him; and (3) the Magistrate must be satisfied and should believe that the confession was voluntarily made. The first two requirements consist of merely explaining to the accused that he is not bound to make a confession and that if he makes it, it would be used against him. For the purpose of the third requirement, the Magistrate is required to satisfy himself that the confession is voluntary by asking questions to the person making the confession and from the fact that the person had sufficient time to reflect whether to make a confession or not and to be free from any undue influence while he was in police custody.

The two confessions in the case are in the form prescribed by this High Court and at the end of the confessions there are the certificates in the form mentioned in Section 164. The confessions mention the time and the date as to when the accused were sent to the judicial custody and when their confessions were recorded. The memorandum, with which the two Appellants were sent mentions that their confessions were to be recorded. This leaves no doubt about the Appellants from the very inception knowing that they were being sent to the judicial custody for the purpose of their confessions being recorded. They must have expressed their desires to do so to the police, whereupon they were sent to the Magistrate.

They were kept in the judicial lock up for about 29 hours. There is however nothing on the record to show that the Magistrate brought specifically to their notice by any order directly or indirectly that their confessions would be recorded. But this is not required by any law. We have no doubt that the Appellants were fully aware that they knew that they were being sent to the judicial lock-up and would confess as desired by them.

The argument of Mr. Dave that the Magistrate did not record the exact words of the questions and answers of the preliminary warning which the Magistrate has to administer to the Appellants is easily met by the confessions wherein it is clearly mentioned that he had explained to the accused that they were not bound to make confessions and that if they did the confessions would be used as evidence against them. The law does not require anything further to be done in this respect.

The next argument that no sufficient time was given to the applts. for reflection and to be free from any influence while in police custody is based upon a Division Bench decision of this Court in - ''Rabari Merawan v. State'', Cr. Appeal No. 49 of 1952 (Sau) (E) but in that case, as held in the peculiar circumstances of that case, only five minutes were given to the accused as reflecting or cooling time to make a momentous decision whether to confess or not. The accused had remained in judicial custody for about 4 days but there were irregularities in sending him to the judicial custody by the police which aroused the suspicion of the Court; it was not established that the accused knew that he was being sent to the judicial custody for the purpose of recording his confession. The facts of that case were peculiar and that judgment cannot apply to the facts of the present case.

In the present case we hold that the Appellants knew on 9-3-53 that they were being sent to the judicial custody as they had expressed their desire to confess and it was not till the expiry of about 29 hours that their confessions were recorded. In - Emperor Vs. Chavadappa Pujari, , a Bench of the Bombay High Court observed that there is no statutory period of time to which an accused is entitled for making a confession after he is sent to the magisterial custody; all that is required is that he must have sufficient time for reflection, and the mere fact that the confession was made one day after the accused was handed over to the magisterial custody would not by itself show that he had no sufficient time.

The law does not require any particular time to be given to an accused to make up his mind whether to confess or not. But as the Magistrate has to satisfy himself and give a certificate to that effect that the confession is voluntary, it is necessary that some time should be given to the accused to reflect whether he should make a confession or not. No hard and fast rule can be laid down as to the time to be given. It will depend upon the circumstances of each case. An educated intelligent person who may be expected to know his mind and not be under any outside influence while in police custody may hardly require any time to make up his mind to be free from the burden of his guilt and make a clean breast in a confession while on the other hand a person of week intelligence and will may require very much longer time to get rid of any coercive influence while in police custody and to make up his decision whether to confess or not.

In the present case there is nothing to throw any suspicion of coercion on the police. The confessions were retracted on the ground that they were made under police pressure. The Appellants have not been able to show that any coercive methods were employed by the police while they were in police custody. We are therefore of the opinion that in the circumstances of the present case the time given to the Appellants for reflection whether to confess or not was sufficient and under the circumstances we agree with the finding of the learned Sessions Judge that the confessions were voluntary.

The last argument advanced by Mr. Dave on behalf of the Appellants in connection with the confessions is that the Court should accept the confessions in their entirety and since there is an allegation of a preliminary assault by the deceased on the Appellants, and as one of the Appellants has mentioned that they never intended to give such a severe beating to the deceased, we must take a very lenient view of the case.

The question whether a confession should be taken in its entirety including both the inculpatory and exculpatory parts thereof has been the subject of several decisions of Courts. This Court had occasion to deal with the subject in a Division Bench decision of this Court to which I was a party in - ''Charan Kana v. State of Saurashtra 4 S LR 249 (G) & we held following - Emperor Vs. Itwa Munda, and - ''Jado Rahim v. Emperor AIR 1938 Sind 202 (I) that a statement or a confession of an accused person need not be considered as true in its entirety, if there is other evidence including circumstantial evidence which cast doubt upon some portion thereof and it is open to the Court to accept a part of the admission of confession which appears to the Court to be true and reject the other part which is not in the light of such other evidence.

The Supreme Court in - Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), recently observed:

The Court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so, it contravened the well accepted rule regarding the'' use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. Reference in this connection may be made to the observations of the Full Bench of the Allahabad High Court in - Balmakund Vs. Emperor, with which observations we fully concur. The confession there comprised of two elements, (a) on account of how the accused killed the women, and (b) on account of his reasons for doing so, the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench was: Can the Court, if it is of opinion that the inculpatory part commends belief and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter? The answer to the reference was that "where there is no other evidence to show affirmatively that any portion of the exculpatory clement in the confession is false", the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.

The words underlined (here in (SIC)) by us show that if there is other evidence to disprove the exculpatory portion of the confession, chat portion need not be accepted. It is quite clear that there is ample evidence on the record in the present case to reject that part of the, confession which says that the Appellants did not intend to give a severe beating to the deceased, and that the provocation was from the deceased. (Here His Lordships referred to this evidence and proceeded). Therefore, we are justified in not relying upon those parts of the confessions which attempt to minimise the gravity of the offence and to show that the deceased was the aggressor in the first instance.

This disposes of the question of the confessions and how far their illegality can be challenged. We have already held that they were not only voluntary but being retracted there was sufficient evidence to corroborate them in material particulars. Even apart from the confessions, the offence has been sufficiently proved by the circumstantial evidence as discussed above. We have therefore no doubt that the Appellants caused the injuries to the deceased with the iron-ringed sticks, as a re-suit of which the deceased died two hours thereafter.

The last question to be considered is as to the offence committed by the Appellants and whether Section 34 would apply in the present case. Mr. Dave has argued that the offence charged was u/s 149 read with Section 302 I. P. Code and that the Magistrate had not framed any specific charge u/s 34, I. P. Code. No charge u/s 34 is required by law to be framed. This has been held by us in a previous case; a recent ruling of the Privy Council (Supreme Court?) which is on all fours with the present case so far as this point is concerned is a complete answer to the argument of Mr. Dave. In-''Lachhmen Singh v. The State AIR 1952 SC 187 (L), it was held:

Where the facts of a case are such that the accused could have been charged alternatively, either u/s 302 read with Section 149 or u/s 302 read with Section 34, the conviction of the accused u/s 302 read with Section 149 can be altered by the High Court in appeal to one u/s 302 read with Section 34, upon the acquittal of the other accused persons.

We consequently repel the plea of the learned Advocate for the Appellants that the Court could not appropriately include Section 34, I. P. C. in the order of conviction. We may incidentally remark that in the charge actually framed the words ''common intention'' have been used; so that although Section 34 is not specifically mentioned, the principal ingredient of common intention has in fact been brought to the notice of the accused.

The Sessions Court has convicted the Appellants u/s 302 or Section 302 read with Section 34 I. P. C. The learned advocate for the Appellants argued that no case of common intention has in fact been established as one of the accused gave only one blow and the other gave the other blows and that there, is no evidence that the attack was premeditated. Now it is not necessary in every case to establish a preconceived common intention to commit an offence. The common intention can develop on the spot provided it is inferable from the circumstances of the case.

In the present case, we have the background that the Appellants had a very strong motive for injuring the deceased who had dishonoured their family by abducting their sister. The Appellants had sticks in their hands and seeing the deceased alone and unarmed, it is not surprising that both of them immediately thought of wreaking revenge. The manner in which their object was accomplished shows their common intention. The nature and number of the injuries inflicted leave no doubt that both intended to cause at least severe injuries, which were likely to result in breaking of bones, if not death. The deceased had eight injuries, five of which were on the legs causing three compound fractures and one simple fracture, while the other injuries were on the jaw causing a compound fracture, on the fibula of the ear and on the neck, the last two being minor.

This leads us to the last question whether the offence would be of murder u/s 302 or any other lesser offence. In this respect, the learned advocate General has very fairly conceded that considering that the major injuries were inflicted on the legs, the offence should appropriately fall u/s 326. We accept this suggestion and therefore set aside the conviction of the Appellants u/s 302 I. P. C. and instead convict them of the oilence u/s 326 read with Section 34 I. P. C. and we reduce the sentence from transportation for life to one of rigorous imprisonment for seven years on each of the Appellants. Subject to this variation, the appeal is dismissed.

BAXI, J.

I agree.