Guja Majhi Accused v. Emperor Opposite Party.

Sharfuddin, J.:— This is an appeal by five persons who were tried along with another, acquitted, for the murder of one Kartik, under S. 302. The murder is said to have taken place some time on the might to 2nd Judo 1916. On the next morning the dead body of Kartik was found outside his house, and thereupon a choukidar went to the thana and lodged information at about 6 a in on 3rd June. An inquiry was set afoot by the police, and during the inquiry the investigating officer happened to come to know that between the deceased on the one side and a man named Bholoo and his son Sarguja, on the other, there-was a dispute with regard to some land. On this clue the police officer conducted the inquiry and arrested the six accused, the five present appellants and one acquitted by the Sessions Court. They were arrested on 27th June and they made a statement under Section 164 of the Cr PC, on the 28th.

2. The only evidence during the trial to connect the accused with the act of murder was their own statements—in the case of the five appellants their statements are confession and in the case of the accused who was acquitted, an ordinary statement. The trial was conducted with the aid of assessors, and the opinion of the assessors was that the accused were guilty under S. 460, I.P.C, but not guilty under S. 302 of that Code. The learned Session Judge however convicted the accused of the offence of murder, but in consideration of the fact that there was nothing to show as to which of the accused had struck the fatal blow to Kartik, he sentenced them to the lesser punishment, namely, transportation for life; and the five accused now appeal to this Court. The first ground taken against the conviction and sentence is, that the statements that the accused made were made at a time when they were drunk. Of that there is no evidence on the record, except their own statements in the grounds of appeal, and also in the statement of one of the accused. This accused, while making that statement, said that Moti Rai, choukidar, beat him and tied him and asked him to make confession. But just a little further on in the same statement when he was asked whether he made the statement voluntarily or not, he said:

“I have given my statement voluntarily, it is true have not made any statement through being beaten.”

3. In the grounds of appeal on behalf of all the petitioners, they state that the sardar caused them to make statements by beating them. This grounds fails. The next ground taken is, that these confessions were retracted before the trial, and that therefore these retracted confessions ought not to have been allowed to support each other. But there can be no doubt as to one fact, and that is that these accused were far away from their own village, a distance of about six miles' on that particular night; because we find in the grounds of appeal to this Court the following pasage:

“That your petitioners are not aware of any thing about the murder of Kartik. They went there at the instance of Sargnja and were standing, on the road. So, your petitioners are innocent be far as the murder is concerned.”

4. They were in the village where the murder took place, of that there can be no doubt but no explanation is forthcoming from the accused as to why and on what mission they had sallied out of their own village, which was at a distance of six miles, and came and stopped on the road in the village of Sanpatti where the murder took place. With regard to the confession itself, it appears that the officer who recorded the confession was not examined in the trial. When this was pointed out to the Crown side they referred to Section 114 and Section 80 of the Evidence Act. S. 80 makes it very clear that it is not necessary that the recorder of the confession should be always examined. Section 80 of the Evidence Act, provides in cases of confession by any prisoner or by any accused taken in accordance with law and purporting to be signed by the examining Magistrate, that it shall be presumed that it was so made. This ground also fails. The last ground was about retracted confessions. It has been held in many cases that a retracted confession is evidence not only against the accused but may also be treated as evidence against his whole case. The only question that we have to decide therefore is as to whether these confessions were made voluntarily or not, or whether they were made under coercion. Of the last there is no evidence.

5. The certificate attached to the confessions clearly shows that they ware voluntarily made and after warning being given to the accused.

6. In these circumstances I do not see my way to interfering either with the convictions or the sentences. I therefore dis miss this appeal.

7. Atkinson, J.:— I concur.

V.S/R.K

8. Appeal dismissed.