Adami, J.:— (After stating the facts, as set out above, proceeded as follows):—
The learned Sessions Judge has written a very full and well considered judgment and has dealt with all the points which have been put before us in this appeal. He has shown that the direct evidence to the occurrence is that of Gardi and Palo and he has shown that the demeanour of these two witnesses was such as to assure him that they were speaking the truth and were manifestly relating what they had seen without any embellishment. Neither of these witnesses are related to Muthuri or are shown to have an enmity against Ramai. The learned Sessions Judge says:
“Their testimony alone is sufficient to prove that the accused was the assailant who with his tangi cut Muthuri Kui and killed her instantaneously.”
The chief evidence then as to the occurrence is the statement of these two witnesses, the production of the blood-stained tangi by the appellant himself, and the confession which the appellant made.
With regard to this confession Mr. Prasad has urged before us that it is inadmissible in that the Deputy Magistrate who recorded it did not sign the certificate which is prescribed by the Code as now amended; he signed the certificate which was in use under the old Code. He urges too that the appellant was not asked if he made the statement voluntarily. With regard to this the question put to the appellant by the Deputy Magistrate was:
“Are you prepared to make a statement of your own free will?”
and surely that is equivalent to asking him whether he made the statement voluntarily. The record of the confession too does not show that the appellant was warned that he was not bound to make a confession and that if he did it might be used in evidence against him. However, owing to this omission, the Deputy Magistrate himself was called as a witness and in his evidence he has said in clear terms that he cautioned the accused explaining to him that he was not bound to make any statement and that if he did so it might be used in evidence against him.
Mr. Prasad has relied on two cases, that of Queen-Empress v. Viran and Farid v. The Crown, in arguing that owing to defects the provisions of section 533 of the Code of Criminal Procedure cannot cure the defect and make the confession admissible. In the former case the confession was found to have violated all the provisions of section 164; in the latter case there was a failure to ask whether the confession was made voluntarily and I am not inclined to agree with the finding in the latter case. In the case of Maksud Ali v. King-Emperor, Jwala Prasad and Sultan Ahmed, J.J, decided that the evidence of the recording Magistrate that he had observed all the provisions of section 164 was sufficient. In my mind there is no doubt that the present confession as recorded is admissible in this case especially since the Deputy Magistrate has been examined and has shown that he observed the provisions of the law.
With regard to the finding of the tangi, there has been some discrepancy among the witnesses, but the only discrepancy is really that between the evidence of Rali Pandu and the evidence given by prosecution witnesses nos. 1, 4 and 17. The learned Sessions Judge has recorded a remark with regard to Rali Pandu that he was an extremely dull person and seems to have forgotten many details and could not be relied on where he differs from witnesses of greater intelligence. According to Rali Ramai stayed in Kami's house while the Munda and others brought the tangi from the kalihan. Even so his evidence proves that the tangi was found in the kalihan of Ramai whither Ramai had filed after assaulting Muthuri. The Munda (P.W 1) says that Ramai took him and the other villagers to the straw but and picked up the blood-stained tangi from a heap of khar grass and made over the tangi to his brother Gore and Gore handed it to the Munda. I do not think that the mere difference between Rali's evidence and the evidence of the three other witnesses should throw any doubt as to the fact of the production of the tangi by Ramai. There is in this case absolutely no reason to think that the Munda was in any way biassed against Ramai. He has given a clear story which has been supported by the other witnesses except Rali Pandu. I am not of opinion that the discrepancy between some of the witnesses as to when the cart carrying Muthuri's body to Chaibassa started, is material, but the discrepancy seems to be easily accounted for.
The learned Sessions Judge has pointed out that the Ho witnesses had very little idea of time and it is also quite likely that the Dakua who was entrusted with the duty of taking the body of Muthuri to Chaibassa delayed till the early morning before starting out owing to the dislike of travelling through the night.
With regard to the other witnesses who saw the body of Muthuri on the ground after death and Ramai's flight to the kalihan and his subsequent movements, there is nothing I think which gives rise to any doubt that they are speaking the truth. Damu of course was related to Muthuri but he gives a clear account of the quarrel between Ramai and himself and his evidence is really confined to giving an account of the quarrel. His account too is supported by the documents he has produced to show the litigation which went on between him and Ramai.
We have to remember that the confession of Ramai was retracted and he went so far as to state that he never made any statement at all to the Deputy Magistrate. This confession, therefore, cannot be given any weight unless it is well corroborated by reliable evidence and I think that in the evidence of Palo and Damu as well as in the evidence of the witnesses as to what subsequently occurred, we have strong corroboration of the confession.
Mr. Prasad has urged before us that it is unlikely that Gardi Ho could have seen the occurrence since he said in his examination-in-chief that he was in his angan suffering from fever; but in answer to the Assessor he stated that he was a few paces outside his house within a fencing which surrounds the front of his house and that he saw from there. The sub-inspector of police has shown that it was quite possible for him to have seen from the place where he says he saw the occurrence.
Having read the evidence very carefully and having taken into consideration the confession and the fact that Ramai himself produced the tangi no doubt is left in my mind that it was Ramai who killed Muthuri and the motive for the attack is fully proved.
Mr. Prasad Damu was the principal defendant in the civil suit it would be more likely that Ramai's anger would be turned against him and that he would have made an attack on Damu by night if possible. But it has to be remembered that Muthuri was the widow of Dising Ho and was also a co-defendant in the civil suit though in that suit no damages were asked for against her. It is quite likely that having lost the civil suit and having come to know that Damu had filed a criminal complaint against him Ramai's anger was aroused when he saw Mussammat Muthuri coming. Though we do not know how the conservation began, we are told by the witnesses that in the course of the fight Ramai shouted out:
“You say ‘I have not eaten it,’ so I am killing you, you she devil.”
It is likely that Muthuri was taunting him about his failure to get the paddy back or that she was asking why she should give back the paddy as she had no enjoyment from it. Anyhow it seems quite likely that Ramai's anger was aroused and he took up the tangi and killed Muthuri.
There are no extenuating circumstances that I can see in this case and consequently I think that the conviction must be upheld and the sentence of death confirmed.
Bucknill, J.:— I agree.
Sentence confirmed.