Thibu Bhogta and another vs The King Emperor

Dawson Miller, C.J.—In this case Phasur Bhogta was tried before the Judicial Commissioner of Chota Nagpur assisted by two assessors in February last on a charge of murdering Sukru Bhogta and Musammat Pandari his wife by poisoning on the 22nd of October last year. Thibu Bhogta was tried at the same time on a charge of abetment of the murder of Sukru Bhogta who was his elder brother. The learned Judicial Commissioner as well as the assessors found both the accused guilty and they were sentenced to death.

The proceedings have been submitted to this Court for confirmation of sentence u/s 374 of the Code of Criminal Procedure and the convicted men have appealed.

The appellants and the deceased persons belonged to the same village, Aidega, in the Simdega sub-division of the Ranchi district in Chota Nagpur. The date upon which the alleged crime took place was the Sohrai Basi, that is the day after the Sohrai festival, which is observed as a holiday in that part of the province and is devoted to feasting and drinking throughout the village, the residents going from house to house for that purpose. But shortly the case for the prosecution is that the appellant Thibu Bhogta was on bad terms with his brother, a blind man with whom he had quarrelled as to the division of their land. The quarrel was one of long standing and Thibu had on a previous occasion purchased poison for the purpose of poisoning his brother. On the 22nd of October last he procured some poison which he made over to Phasur Bhogta promising him a reward of Rs. 10 and two bullocks if he would administer it to his brother Sukru. The same evening Phasur invited Sukru to his house whore he went ac companied by his little daughter Jamni. As Sukru was blind, either Jamni or one of his other children usually accompanied him when he went out. At Phasur''s house he partook of Handia, a spirit distilled from rice, and Konhara Chakna, a preparation of pumpkin and chillies used as a sort of relish apparently to induce thirst. This was offered to him by Phasur. Shortly afterwards Sukru''s wife Pandari also accompanied by their small daughter Gangi, a twin of Jamni''s, arrived and she also was offered and partook of the same food and drink The time was in the evening about sunset. Shortly after they returned home, both Sukru and his wife were attacked with symytoms of poisoning from which they died, Sukru the same night and Pandari in the early hours of the next morning.

The principal evidence against the appellants consists of confessions made by each of them on the 2nd of November before Mr. Walze, Magistrate of the first class, at Simdega. The confessions so made were repeated with slight additions, but substantially to the same effect, before Committing Magistrate on the 8th of December. At the trial before the Judicial Commissioner on the 3rd of February they withdrew their confessions, stating that they had been asked to confess by the daroga, and pleaded not guilty.

Apart from the confessions of the appellants themselves, the evidence is purely circumstantial, and although it might be sufficient to raise great suspicion against the accused, we should not be prepared to convict them upon that evidence alone.

The main question for determination is whether we can rely upon the confessions. This involves a consideration of whether the evidence in the case affords corroboration of the matters alleged by the accused themselves before the Magistrate in their confessions. According to the evidence called on behalf of the prosecution, it would appear to be clearly established that the two brothers were on bad terms.

[After discussion of evidence about enmity judgment proceeded as follows:-]

There is no evidence of any quarrel between Phasur the other appellant and Sukru: in fact it is stated by at least one of the witnesses that they were not on bad terms. I have referred in some detail to the evidence as to the quarrel between the two brothers as it is a matter alleged in both the confessions as the motive for the poisoning.

I now come to the evidence of the actual occurrence which took place on the 22nd of October There is evidence to show that both Sukru and his wife had been at the house of Phasur eating and drinking about noon or a little earlier on the same day. Other persons were also present on that occasion and it would seem clear that if poison was in fact administered by Phasur it was not on that occasion. It was urged on behalf of the appellants that there was in fact no reliable evidence that the deceased couple were at the house of Phasur on the later occasion in the afternoon, but I am satisfied from the evidence, which I shall refer to, that it has been proved that they were there shortly before sundown.

[His Lordship then dealt with the evidence of witnesses in detail and continued as under.]

A post-mortem examination was made on the bodies but no poison was found in the viscera and unfortunately none of the matter vomitted was preserved for chemical analysis. The bodies were those of healthy persons with no signs of injury, and it would appear that the actual cause of death was asphyxiation. The internal organs were much congested. According to Colonel Murray, the Civil Surgeon of Ranchi, who gave evidence at the trial and who had received the post-mortem examination report, it could not definitely be said from the indications appearing from the reports that death was due to poisoning but that a suspicion of poisoning arose from the absence of any injury or organic disease. He stated that poison could be entirely evacuated by vomitting and that the condition of congestion of the internal organs brain, lungs, etc. may appear in the case of persons who had taken poisons such as aconite, dhatura, or yellow Oleander. He also stated that vomitting might lead to asphyxia by particles of vomitted matter being drawn into the respiratory passage. The post-mortem examination, therefore, is of a negative character which shows symptoms consistent with poisoning or other causes. It is well known, however, as reference to books on Medical Jurisprudence will show that certain poisons, such as aconite, do produce the symptoms which were observed in the present case. In Lyon''s Medical Jurisprudence, 7th edition, 691, the action and symptoms of aconite poisoning are described. It first produces tingling and then paralysis, the sensory nerve-terminals causing numbness. It produces similar effects on the motor nerves and centres of the medulla and cord. The motor ganglia of the heart are paralysed, the respiratory centre is slowed being usually due to arrest of respiration. Amongst the other symptoms it is there stated that the tingling is followed by numbness and great muscular weakness, the patient staggers, if he attempts to walk, respiration becomes slow and weak, and death may occur from shock or syncope but usually occurs from asphyxia due to paralysis of the respiration. Most of these symptoms were observed in the present case. At page 696 the importance of examining the vomitted matter as well as the viscera in fatal cases is insisted on, and several instances are given of this kind of poisoning where no poison was found in the stomach or its contents or the liver or other organs but was found in the vomitted matter.

I now turn to the confession of the appellants on which the conviction was mainly based. It would appear that they were both arrested on the 30th of October and sent to Simdega where they arrived on the following day. The Magistrate understanding that they wished to make confessions gave them time for reflection and committed them to the local jail until the 2nd of November, so that they might have time for reflection freed from police influence. The Magistrate informed them that he was a Hakim and asked Phasur Bhogta "do you like to make any statement before me of your own free will". He answered "yes" and on being asked "what do you want to state", replied that there was a quarrel between Sukru and Thibu in the month of Jeth and both brothers were ready to fight armed with arrows and baluas; that Sukru Bhogta had ploughed the land and that there was enmity between the brothers. In Asar last Thibu one evening had asked him to do away with Sukru but he refused; that on Sunday about 12 days ago Thibu called him to his house and gave him Handia to drink and some poison like maida flour on a leaf of a green colour and asked him to administer it to Sukru. He first declined and Thibu said that he would pay him Rs. 10 and give him a pair of bullocks and any other thing he would demand. This took place at noon. He then describes how the same day he met Sukru returning after drinking and took him to his house and having mixed the poison given by Thibu with Chakna made him eat it and also gave him Handia to drink; that Sukru''s wife Pandari also came and ate the Chakna into which poison was mixed and also took Handia. They then went way and he adds that Sukru died at 10 p. m. and his wife at cock crow. He also adds that Thibu did not tell him that the medicine was zahur (poison) but told him that it was bish (poison) and that if it was taken by any man he would emaciate and die within two or three months.

In the case of Thibu the Magistrate stated to him "I am a Hakim, you may make your statement if you so wish". He States in effect that he had a quarrel with his brother in Asar last over their land and there was an altercation between them. He told the landlord Chandrabhan who said that he too had enmity with Sukru because he did not pay his rent, and advised Thibu to kill him but he refused. Later, in the month of Bhado, he again complained to the landlord that Sukru was cutting his Gondli and asked him to expostulate and again the landlord advised him to kill his brother and offered to give him poison for the purpose, suggesting that if Thibu could not administer it he should get Phasur Bhogta to do so. He got the poison on a Friday and gave it to Phasur Bhogta on the following Sunday, the day after the Sohrai and told him that Chandrabhan had given him the poison to kill Sukru; that as he, his brother, could not administer it to him Phasur had better do it The same day in the evening Phasur called Sukru to his house and gave him the poison mixed with Chakna. When doing so his wife Pandari also came to the house and took the Chakna with her husband and they both died. The Magistrate recorded that he believed the confessions to be voluntarily made.

It was strongly urged before us that the confessions ought not to have been recorded by the Magistrate at all because he did not comply with the provisions of Section 164 of the Criminal Procedure Code, the third clause of which provides "that no Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that he has made it voluntarily." It was contended that the question put to Phasur was not sufficient to enable the Magistrate to arrive at the conclusion that the confession was made voluntarily, and that in the case of Thibu no question in fact was put but he was merely told that he might make a statement if he so wished. I may say at once that with regard to the last contention. I can see no material difference between asking a person if he wishes to make a voluntary statement and stating to him that he may make a statement if he so wishes. It is contended, however, that even if a general question of this sort should be put, that is not enough within the provisions of the section to entitle the Magistrate to record the confession.

Certain cases were relied upon in support of this contention: Ragho Laya v. Emperor [1917] 18 Cr. L.J. 721: 40 I.C.721 Jogjiban Ghose and Others Vs. Emperor Farid v. Emperor [1922] Lah; 237: 5 P.W.R. 1922 Cr.: 23 C.L.J. 149: 65 I.C. 613 Queen Empress v. Narain [1901] 25 Bom. 543 and Jiuboahan v. King Emperor (decided by Patna High Court in 1917). In the last mentioned case the Court found that the confessions were improperly induced by the police and recorded in the presence of a police officer and they refused to accept them. One of the learned Judges, Chapman, J. did not deal with the question of Magistrate''s jurisdiction. The other learned Judge, Roe J. who agreed with him added "As I understand Section 164, clause 3 a Magistrate is bound to question the accused closely as to his motives in making the confession and if he fails to do so he has no jurisdiction to say that he is satisfied with the confession as voluntarily made. He has therefore no jurisdiction to record it as a Magistrate." In the case of Ragho Laya v. Emperor [1917] 18 Cr. L.J. 721: 40 I.C.721 the same learned Judge refers with disapproval to the invariable practice of Deputy Magistrates in this province of ignoring entirely the provisions of Section 164(3), and expresses the view that it is not sufficient for the Magistrate merely to inform the accused person that he is a Magistrate and tell him that he may make a statement of his own accord if he so chooses but not to make any statement which he had been tutored by others to make, and adds that what is meant by the Code is that the Magistrate should ask the accused some questions as "why are you confessing, are you sorry for your crime, or is it that some one has told you that you will gain something by a confession.," and that he should refuse to proceed with the recording of the confession until he has a satisfactory answer to his question.

In a more recent case, King Emperor v. Dewan Kahar, [1922] 4 P.L.T. 187 the dictum of Roe J was criticised and dissented from if it was meant to lay down a proposition of law; but if it was merely a rule of prudence it was unobjectionable. All that the section requires is that the Magistrate on questioning the person making the confession shall have reason to believe that it was made voluntarily. No express form of question is prescribed, and, in my opinion, the extent to which a Magistrate should question the person making the confession must largely depend upon the particular facts of each case. As pointed out by Mr. Justice Das in the case last mentioned, there are cases which on the face of hem attract the suspicion of a Magistrate and there are others which do not attract suspicion at all, and it is quite impossible to lay down any hard and fast rule on the subject. The Court must in each case satisfy itself that the Magistrate honestly believed and took steps to ascertain that the confession was a voluntary one. I think it would be a very dangerous rule to lay down that any particular form of questioning is necessary. Whilst it is clearly desirable that a Magistrate should always put such questions as may be necessary to enable him to determine whether the confession is voluntary, I can see no reason why a comprehensive question such as that objected to by Roe J. in the case of Ragho Laya v. Emperor [1917] 18 Cri. L.J. 721: 40 I.C.721 should not be sufficient in certain cases. In the present case the persons confessing had not been in police custody for more than 24 hours. They were then given two days for reflection freed from police influence and came again voluntarily to make their statements. There was primarily no reason why the Magistrate should expect any undue pressure although he was bound to satisfy himself by a proper enquiry that the statements were voluntary, and I can see no reason why the confessions as taken down by the Magistrate should be inadmissible under the Section. The question is not whether, having regard to all the circumstances and the other evidence in the case, we should accept the confessions as true, but whether the Magistrate, in the circumstances shown, exceeded his jurisdiction in recording them at all. Even if they were properly recorded, there always remains the further question of whether the Court should accept them as statements of the truth. In the present case although the questioning was meagre, the circumstances were not such as to create any suspicion in the mind of the Magistrate and he may well have been satisfied from the demeanour of the persons making the statement as well as the questions put and the manner in which the statements were made, that they were voluntary. In my opinion the confessions recorded are not objectionable on the ground that the provisions of Section 164 of the Criminal Procedure Code were not complied with. The real question is whether on the rest of the evidence in the case there is sufficient corroboration of the facts mentioned in the confessions to enable us to judge of their truth. The evidence, as already Stated, clearly shows that there was a feud between these two brothers of long standing and that their quarrel was cropping up from time to time. It is suggested that the motive was really inadequate to induce Thibu and certainly Phasur to commit a crime of this magnitude. It must be remembered however that all the parties in this case are Mundas descended from aboriginal tribes and one cannot apply to them the same tests of conduct as one would in the case of more cultured people, and what might well appear to be no adequate inducement to commit a crime in the case of people of a higher standard of intelligence and morals, might appear to them to be more than adequate. There seems to be no reason why these confessions should have been made if they were not in the main true. One feature which is frequently observable in confessions amongst people of a low standard of intelligence is present in this instance. It will be observed that in both cases whilst confessing their crime, they introduced circumstances which probably appeared to them to show a certain amount of extenuation. In the case of Thibu he seeks to excuse his action on the ground that he was influenced and urged thereto by the landlord. In the case of Phasur he alleges, which was no doubt true, that Thibu was the prime instigator and further that he told him that the poison was such that the man would not die immediately but would emaciate and die later and in his examination before the Committing Magistrate he puts the extenuating circumstances even higher by saying that Thibu told him that Sukru would not die if he took the poison but would only be emaciated. It is impossible however to accept this part of his statement as it was clearly an afterthought.

After considering the whole of the evidence it seems to me ample to support the truth of the confessions made and I hare no reasonable doubt that they were true in so far as they disclosed the guilt of the appellants. In my opinion this appeal should be dismissed and the sentences confirmed.

Mullick, J.

I agree.