Dingur, a Manipuri, Kampu and Kappu, two Kukis, have been convicted by the Sessions Judge of Cachar in concurrence with the assessors of murder of Maidem, a Kabuli, and Dingur and Kampu have been sentenced to death and Kappu to transportation for life. Kappu has not appealed. The case is before us on a reference from the Sessions Judge for confirmation of the sentences of death as well as on the appeals of Dingur and Kampu.

Ainuddi and Maidem were two brothers, Kabuli traders in this locality and apparently had many outstanding debts due to them. Amongst these debtors was the prisoner Dingur who, it seems, was also security for other debtors. They pressed Dingur for payment and he induced Maidem to accompany him to his village with Rs. 400, half in cash and half in notes, offering to obtain for him profitable purchases of property. What this property was to be is doubtful, but it would seem to have been gold. They left on Thursday, 10th April. As Maidem did not return on the following day, Ainuddi became alarmed and went on Saturday to Dingur's village which is at some distance. Ainuddi could find no traces of his brother, so he gave information to the Sub-Inspector at the police-station on the 15th April at 5 P.M The Sub-Inspector did not record that information under sec. 154, Code of Criminal Procedure, but he directed a Head Constable to make inquiry and, on the following day, he commenced the investigation himself. He says that he made private inquiries but could not find out until 19th April whether the man had been murdered or was only missing. On that day, he says, Ainuddi, Naju Khan Kabuli and Mafiz Ali brought to him Kabuli shoes, a bag and some pieces of a pugri said to have been worn by Maidem.

The Sub-Inspector then recorded the statement of Ainuddi which he describes as the first information and he ordered the arrest of Dingur and Kampu. He sent these men to the Magistrate on 20th April with a request that they might be remanded for five days to Police custody and he obtained the necessary order from the Magistrate. These men were again brought before the Magistrate on 25th or 26th April. The exact date is not quite clear. At any rate on the 26th April, statements purporting to be confessions by these men were recorded under sec. 164, Code of Criminal Procedure, not by the Magistrate who committed this case but by a Subordinate Magistrate.

The proceedings up to this point are open to most serious objections.

In the first place what has been regarded by the Sub-Inspector as the first information as well as in the judicial proceedings before the Magistrate and at the sessions trial is nothing of the kind. The police-officer seems to have considered that until he had some good reason to believe that an offence was committed, he was justified in abstaining from recording the information on which he had acted, that is to say, although, on information given he was led to believe the commission of a murder and on this information he had proceeded to the spot to make an investigation and had been so engaged for three or four days, he had nothing on record to show on what information he had been so engaged and until the matter under investigation had so developed that there was some reason to believe that an offence had been committed he was not bound to reduce to writing what is termed a first information. No statement recorded under such circumstances can properly be regarded as a first information. It cannot represent the account originally given and what is then recorded must always be regarded as open to the suspicion of containing what has been discovered up to that time and not as what was known to the informant and at once told to the Police.

Such a practice is altogether contrary to sec. 154, Code of Criminal Procedure. The first information, if recorded as directed by sec. 154 at the time that it is made, is of considerable value at the trial because it shows on what materials the investigation commenced and what was the story then told. Any statement, recorded as in this case several days after the commencement of the investigation and after there had been some development, is not only no first information, but has very little or no value at all as the original story, because it can be made to fit into the case as then developed. It may be observed that the Sub-Inspector professes to state what Ainuddi the informant first told him, but this cannot be accepted as supplying what the law has directed to be done and has been left undone. No one would accept such a statement as reliable in its details after the lapse of time, even if it were admissible in evidence. We do not, moreover, find that Ainuddi has himself stated what he then told the Police. The statement of the police-officers in this respect stands alone and cannot be compared with the statement of the informant himself made several days later.

In the next place the two accused, Dingur and Kampu, were brought before the Magistrate in accordance with law on 20th April. They did not then offer to make any statements, so none were recorded under sec. 164 of the Code of Criminal Procedure and from this it may be taken that they did not then admit having taken any part in the suspected murder of Maidem. The Sub-Inspector, however, when placing these men before the Magistrate, asked for a special order under sec. 167, Code of Criminal Procedure, authorising their detention in Police custody for five days. He represented that it was “necessary that the accused should remain with him until next Thursday when the Dhuarbond Bazar will be held.”

On this, the Magistrate recorded an order “allowed.” Sec. 167(3) requires that the Magistrate, authorising under that section detention in the custody of the Police shall record his reasons for so doing, evidently intending that such detention shall be allowed only in special cases and for stated reasons and not as a matter of course whenever it may be asked for by an investigating police-officer. By requiring a Magistrate to record his reason for authorising detention in Police custody the law contemplates that a Magistrate shall consider whether on the facts placed before him there are good grounds for allowing such detention. The occurrence of the local bazar which is the reason stated by the Police, is certainly no sufficient ground. There should at least be something to satisfy the Magistrate that the presence of the person arrested while the Police investigation was being held would assist in some discovery of evidence and that his presence was indispensable for this purpose, as for instance, when he had confessed before the Magistrate and had pointed out some of the property stolen in the offence and was wanting to do more but unable to do so because the Police were by law unable without a special order to detain him. In ordering further detention in Police custody where there are good reasons for such an order, a Magistrate should invariably limit the term as much as possible to what may be necessary for the object in view. We observe that it does not appear from the record that this Magistrate was the District Magistrate or a Sub-divisional Magistrate, and, therefore, he was bound under sub-sec. (4) to send a copy of his order to such superior Magistrate who is then made acquainted with it and thus responsible for it. It does not appear that this was done and, therefore, here again the most useful and necessary provisions of the law were disregarded. What followed on this further detention shows the mischief that must almost inevitably result. These two men who, after arrest and when placed before the Magistrate, showed no inclination to make a confessional statement, when they were placed before him after five days' unlawful detention in Police custody made statements purporting in some degree to admit their guilt. These statements, it may be observed, were, for some reason not stated in the proceedings, not recorded by the Magistrate who held the judicial inquiry and committed the case to the sessions. They were recorded by a Subordinate Magistrate who was not otherwise competent to act, although from its gravity the case should have received proper attention from the superior Magistrate. Now, although it may be as stated by the Sessions Judge that “the accused have never alleged that the confessions in any way were extorted from them,” the record shows that Dingur in cross-examination asked the Sub-Inspector whether he did not been him, which was of course denied. In reference to this, the Sessions Judge remarks “he (Dingur) has not alleged that he was beaten in order to make him confess, and, I believe, if he had been, he would have stated so before me if not before the confessing Magistrate.” The prisoners are Kukis, men of a rude and uncivilized tribe, and they were not defended. Some allowance must, therefore, be made in considering this matter. After the denial of the Sub-Inspector that he had beaten the prisoner, it is not unreasonable to suppose that the former would think that his uncorroborated statement of ill-treatment would receive no weight. The question put in cross-examination is, however, not without significance as showing that the prisoner did complain of ill-treatment. We have also the fact that these men showed no inclination to confess when first placed before the Magistrate and that they did not make the statements on the record until they had been in Police custody for five days. To what can this change be attributed except to some improper influences during that time, when ample opportunity had been given by the illegal order of the Magistrate for this detention? Notwithstanding the certificate of the Sub-Magistrat'e under sec. 164 that he believed that the “confessions were voluntarily made,” it is impossible not to regard them with the greatest suspicion from the circumstances under which they were obtained. The statements themselves moreover add considerably to this suspicion, for they are not statements made by men describing truly what really took place. This will be presently referred to in consideration of the evidence on which the accused have been convicted. What we desire here to state is that there is very strong reason to believe that these statements were not voluntarily made and that they are not reliable as true. We are, therefore, commencing a consideration of the evidence with good grounds for believing that an important portion of it is unreliable.

In reference to another man Kappu, who has not appealed, it may be observed that he was placed before the Magistrate on 23rd April, but his statement was not recorded under sec. 164 until the following day and that meanwhile he was not sent to hajut as usual, but was detained in Police custody.

Two points are clear in this case, Maidem left his usual place of residence in company with the prisoner Dingur, taking with him Rs. 400 half in cash and half in notes for the purpose of making a profitable purchase at the suggestion of Dingur who was his debtor. Next, since that time he has nob been seen alive, that human bones with some clothing identified as his, have been found in a jungle in the neighbourhood of the prisoners' houses. And that these bones show marks of a cut through the neck sufficient to have caused death. There is some evidence to show that Maidem was seen in the company of the prisoners on the morning after he had left his ordinary place of residence with Dingur. Four witnesses speak to this, Golap Singh, the nephew of Dingur, Beni Bowra, a neighbour against whom there is some ground for ??? that he is concerned in the murder, Phirpa, the father-in-law of the prisoner Kampu, and Chengu, Kampu's wife. Their evidence in this respect is of no particular consequence since there is no doubt that Maidem left his ordinary residence with Dingur and, therefore, most probably was in Dingur's company on the following morning. Phirpa has also stated that at the entreaty of Dingur and Kappu, who has not appealed, he took Maidem's bag and shoes and placed them where they were afterwards found some days later. The Sessions Judge has rightly described Phirpa as a most unsatisfactory witness on which it would be unsafe to place any reliance. Chengu, the wife of Kampu, says that two days after she saw Maidem, she found a knife in the sugarcane mill. She was frightened and gave it to her mother who buried it. Her father dug it up. She does not know to whom the knife belonged and she never saw it before. Why she was frightened does not appear. Reference has been made to the evidence of Phirpa and Chengu regarding the finding of certain articles said to have belonged to Maidem because their names have been already mentioned. The other evidence in respect to this part of the case will be again described.

The first discovery in the Police investigation was the finding of a bag, shoes, and a piece of a pugri, said to have belonged to Maidem. The evidence on this point is not so clear as it should have been. Ainuddi, the brother of Maidem, says that a man came from Dhuarbond and told him that these things had been found. He next says that he found them at night “on the other side of a drain in Dhuarbond.” The Sub-Inspector states that, at 11 P.M on 19th April, Ainuddi Kabuli, Nagur Khan Kabuli and Mafez Ali came to him with these things. Nazir Khan and Mafez Ali have not been examined. The only witness to this finding is Ainuddi. The man on whose information he says he made this discovery has not been examined and it is remarkable that those things should have been found at night near the road side. On this discovery the Sub-Inspector says that he arrested Dingur and Kampu and sent them on to the Magistrate. What followed has already been mentioned. Kappu, who has not appealed, was apparently arrested on 21st because he showed the place where human bones, a piece of a Kabuli coat and four handkerchiefs said to have belonged to Maidem were found in a dense jungle some two miles distant from the prisoners' houses. On the 24th, a knife said to have belonged to Maidem was found. The Sub-Inspector says that it was dug up by Phirpa, the father-in-law of the prisoner, Kampu. Phirpa, whose evidence has rightly been rejected by the Sessions Judge as unreliable, states that he dug it up, but he also says that he cannot say who dug it up, and he further says that he cannot say who put the knife there. Chengu, the prisoner Kampu's wife, as has been already stated, says that his mother buried the knife and that Phirpa, her father, dug it up. The knife which apparently bears a Sheffield mark, is stated by Ainuddi to have been the property of his brother Maidem.

The Sub-Inspector next says that the prisoner Dingur, on the 25th, that is, after he had been five days in Police custody, produced a dollar, a square rupee, a pair of scissors and a lock and key. The last two articles are identified by Ainuddi as the property of Maidem, but he says that the scissors “were brought out by the women” in contradiction to the Sub-Inspector and the Sub-Inspector's evidence is all that we have as to this discovery. It may, however, be, as stated by Dingur in his statement of the 26th April to the Magistrate, that he took these articles after Maidem had been killed and that he afterwards gave them up to the Sub-Inspector. On 30th April, when again examined, he repeated this in answer to a question on the subject.

Irrespective of the statements of the accused, this is the evidence against the prisoner.

We have already stated how statements purporting to be confessions were obtained after long detention in the hands of the Police and we have expressed our very strong disapproval of the proceedings both of the Magistrate and the Police and we have also stated that while there is a very strong doubt whether these statements were voluntarily made, we have no doubt from their contents that the statements are untrue so far as they describe how Maidem met his death. It is very remarkable that, although undoubtedly the object of the murder was to possess themselves of the money that Maidem had on his person and the prisoners admit that they took some part in the murder and are said to have been in possession of articles of no value belonging to the deceased, not one of them attempts to explain what has become of the money. But if the statement made by Dingur on 26th April when he was placed before the Magistrate after five days' detention in Police custody be set aside, we still have his admission to the Magistrate on the 30th when he was free from such influence that he gave up the scissors, padlock and key, identified as the property of the deceased, and coins of an unusual description, not current or likely to be with people of that part of the country, but such as would be with the Kabuli deceased. Taken with the fact that the deceased was induced by Dingur to accompany him with a large sum of money in hope of making a profitable purchase as suggested by him, we think that the evidence is sufficient to convict Dingur of murder.

In respect of Kampu, we have the same objection to his statement of 26th April when he was placed before the Magistrate after five days' detention in Police custody and we find at the end of that statement that Kampu said to the Magistrate will the responsibility be on us two Kukis or on Dingu?” From his statement it is clear that he desired to place the whole responsibility on Dingur. In his next statement made to the Magistrate on 30th, while denying much that he had previously stated, he admitted that he was present when Maidem was killed and that he and Kappu dragged the dead body to a cave and threw it into it. How the body found its way into the jungle at some distance is not explained. We cannot accept the suggestion that it was dragged there by the wild beasts who devoured it. Kampu, it may be observed, also admitted in this statement that he was in possession of the knife found buried in his house which is proved to have belonged to the deceased. On this evidence we think that Kampu should be convicted of murder.

Having regard to the character of the offence committed, for there can be little doubt that the deceased Maidem was decoyed by Dingur to his death, we think that there should be some distinction between the sentences on Dingur and on his accomplice Kampu. We accordingly Sentence Dingur to death and Kampu to transportation for life. Their appeals are dismissed. The very serious irregularities committed in the proceedings which have been set out at considerable length have caused great difficulty in dealing with this case. These irregularities amount to a direct disobedience of the law on the part of the Magistrate who has thus defeated the manifest object of the law.

This is not the first case which has, within a very short time, been before of such misconduct on the part of a Magistrate in the Province of Assam, and we direct that a copy of the judgment be sent to the Chief Commissioner for proper notice of the proceeding of this Magistrate.