Chatterji, J.:— Two brothers Manu Chik, aged about 32, and Sita Chik, aged about 26, of village Labdera, police station Kurdeg, have been convicted by the Judicial Commissioner of Banchi, Manu Under S. 302, I.P.C for murdering his paternal aunt Budhni, a widow, on 18th January 1937, and Sita under S. 201, I.P.C for concealing her dead body in Labdera tank. Manu has been sentenced to death and Sita to five years' rigorous imprisonment. There is a reference under Section 374 of the Cr PC for confirmation of the sentence of death which has been heard along with two appeals, one filed by Manu and the other by Sita. The prosecution story as disclosed from the evidence may be stated as follows: The husband of Mt. Budhni and the father of the two accused were brothers, both of them residing in the same village Labdera in contiguous houses. Budhni after she became a widow lived there for sometime with her two infant sons. Due to quarrels with her nephews, the two accused, and their father, she went with her sons to live in a village called Jhunka-Chapar with a relation Sobhnath Chik. Subsequently she alone, leaving behind her sons at Jhunka-Chapar, shifted to another village Khinda, two miles from Labdera, where she lived with Gobra Chik a distant relation of her husband. In December 1935, while Budhni was at Jhunka-Chapar, the father of the accused went to her but never returned and subsequently his dead body was found. The accused who believed Budhni to be a witch suspected that she was responsible for their father's death. There were several other deaths in their family. On the day of occurrence, i.e 18th January 1937 (Monday), Budhni left Khinda saying that she was going to Labdera to see her step-son's widow Mt. Bunji who was suffering from pox and the accused Sita's wife who was also ill. Sita's wife however died on the previous Satur day. Budhni arrived at the house of the accused at about noon on Monday. She sat in the angan and began weeping on account of the bereavements and while weeping she suggested that the accused should remove elsewhere as there were so many deaths in the house. Hearing this Manu who was cutting wood struck her on the neck with the back of his are and she fell down. Manu then dragged her into Sita's room. At that time Sita turned up and Manu throttled her to death while Sita stood on her legs. They then dug a pit in the room and there buried her. Subsequently in the night they removed the dead body and threw into the Labdera tank.

2. After several days Mahabir son of Gobra began to search for her. Being unable to trace her, he went on the 11th February to the police station at Kurdeg and reported the fact of her disappearance saying that he had searched for her at the nearest coolie depot and at Labdera but without any result. He suggested that she might have gone to work at some tea garden in Assam. He furnished a description of her mentioning among other things that she had two upper teeth broken and was wearing bracelets and rings and a red bordered sari. In the meantime the accused pulled down their house and with its materials erected a new one in another part of the same village where they removed with their family. On the 13th April, a dead body was found floating in the Labdera tank. This was reported to the village chaukidar Rasool who lodged an unnatural death report at the police station on the following day. The Sub-Inspector in charge of the Kurdeg police station, T.P Madhu, went to the place, made the usual in quest report and sent the body to Simdega for post mortem. The post mortem was held on the, 16th April and the report showed that the dead body was that of a female in a highly decomposed condition with head, both hands and both feet mis, sing and the second cervical vertebra cut through completely. The Sub-Inspector proceeded with the investigation as if it was a case of unnatural death, though he noted that the absence of the limbs gave rise to some suspicion of foul play. On the 25th April, the Divisional Inspector came to supervise the enquiry and examined certain Witnesses. The Deputy Superintendent of Police also came later and apparently after examining certain witnesses, he ordered the Sub-Inspector to institute a murder case. Accordingly the latter drew up a first information report ton the 8th May and on the following day arrested the two accused. On that very day, the 9th, both of them got away from the police station and went directly; to Simdega where they met the Sub-divisional Magistrate on 10th May and made a complaint to him against the Sub-Inspector. The Magistrate did not record their complaint but asked them to come to Court the next morning. In the meantime, the Sub-Inspector of Kurdeg sent a report saying that they were accused in a murder case and had escaped from police custody. They were re-arrested on the 11th and on that very day the Magistrate recorded the following order in the order sheet: “Manu is reported to be confessing. Let them be produced on 13th May 1937.”.

3. On 13th May, Manu was taken to the Magistrate and his confession was recorded by him. The Sub-Inspector Madhu on account of his inaction in the matter was replaced by a Sub-Inspector of Gumla, Ramdeal Prasad. The latter took up the investigation on 15th May. He went to Labdera on 18th May and found in the old abandoned house of the accused a hole, 4 cubits × 1½ cubits × 1½ cubits, dug in the floor of Sita's room. On 23rd and 24th May he got the water of the Labdera tank drained out, and from its bed he discovered 1 the following things, two large stones with ropes round them, a post which was fixed in the bed between the two stones, a skull, a lower law and number of bones, large and small, three beras (bracelets), one chandwa (necklace), a key ring with key, and two toe-rings. On 29th May he sent up no less than 12 witnesses for examination under Section 164 of the Cr PC. On 6th June he submitted a charge sheet under S. 302 against both the accused. The case was transferred to the Sub-divisional Magistrate of Gumla as the Sub-divisional Magistrate of Simdega was to be a witness. The Magistrate committed the two accused to the Court of Session to take their trial, Manu under S. 302 and Sita under S. 201, I.P.C Both before the committing Magistrate and in the Court of Session Manu retracted his confession. In the Sessions Court no less than 69 witnesses were examined for the prosecution and two as Court witnesses Three out of the four assessors with whose aid the trial was held were of opinion that the evidence was not satisfactory to establish that the corpse found in the tank was Budhni's corpse and therefore they would acquit both the prisoners. Assessor 4 was satisfied on the evidence that the dead body found in the tank was Budhni's corpse and she had been murdered and that Manu had murdered her and Sita helped him to conceal the corpse and in his opinion Manu was guilty under S. 302 and Sita under S. 201. The prosecution evidence may be divided under three heads: (1) direct evidence; (2) circumstantial evidence; (3) confession of Manu. I shall first of all deal with the direct evidence. It consists of the testimony of Ladhu, P.W 2, a lad of about 15, and Rebi, P.W 7, a girl of about 19. (His Lordship after examining their evidence and of those corroborating it, rejected it as unreliable. Similarly the evidence of eye-witnesses P.Ws 38 and 48 was discarded. His Lordship proceeded.) If the evidence of these four witnesses P.Ws 2, 7, 38 and 48 be discarded, there remains very little of the prosecution case. Indeed a large number of witnesses have been examined, but some of them are quite unnecessary and out of the rest those whose evidence; may be said to be material are the witnesses who corroborate Ladhu and Rebi. Their evidence has already been dealt with. There remains for consideration the evidence of the four female relations of the accused who were declared hostile, namely Parbatia (P.W 41), Sadamani (P.W 42), Sunsuni (P.W 51) and Runji (P.W 43). They all made statements under Section 164 of the Cr PC, implicating the accused and they have all retracted those statements in the Sessions Court. Of course the mere fact that they retracted their statements in the Sessions does not show that what they stated before the Magistrate under S. 164 or before the committing Magistrate was false; but we have to consider whether the earlier statements were in fact true. (His Lordship after discussing the evidence concluded that they were not voluntary. His Lordship then reproduced the confession in full and proceeded.) This confession has been retracted. As a rule of prudence a retracted confession should not be the basis of a conviction unless it is substantially corroborated by independent evidence. The object for looking for corroboration is to find out how far the confession is true and whether it can be acted upon for the purposes of a conviction. The best test to my mind is whether the story as set forth in the confession is consistent, natural and plausible. (His Lordship after examining the confession found that it was neither consistent and natural nor true or voluntary and proceeded.) Coming to the circumstantial evidence, I should at once say that after the direct evidence and the confession are discarded, there remains practically nothing to support the conviction. In this connection the foremost question that arises is whether the dead body that was found in the Labdera tank was that of Budhni. From the doctor's evidence it is clear that some of the bones, namely two cervical Vertebrae, one radius and an ulna, which wears discovered from the bed of the tank could not belong to the body on which he had held post mortem examination on 16th April. The learned Judicial Commissioner finds fault with the evidence of the doctor; but he is quite definite in his opinion and in the absence of anything put to him to suggest that his opinion might be wrong there is no reason why his evidence should not be accepted. Mahabir (P.W 1), in whose house the deceased Budhni was living at the time she disappeared stated in his report before the police dated 11th February 1937 that she was wearing a mala and silver bera, small Jhoutia on her right leg and she had two upper teeth broken. Now from the bed of the tank a mala and some beras and Jhoutia together with the rings and key-ring and a law without two upper teeth were recovered. Of course the ornaments as admitted by the witnesses who identified them are of very common use; but taking all the things together, it seems that in all probability the body that was found in the tank might be of Budhni; but I do not think it necessary to pronounce any definite opinion on the point because even assuming that Budhni was murdered, the evidence adduced by the prosecution falls far short of proving that it was Manu that committed the murder. In my opinion therefore he ought to be acquitted.

4. As regards Sita, he must also be necessarily acquitted on the finding that Manu has not been proved to have committed the murder. Apart from this, the evidence on which Sita has been convicted consists of the testimony of Rebi (P.W 7) and Pheku (P.W 48) which I have already disbelieved. I would accordingly discharge the reference and allow the appeals and acquit both Manu and Sita.

Dhavle, J.:— I agree. The learned Judicial Commissioner says that the Sub-Assistant Surgeon, who expressed the opinion that the radius, ulna and vertebrae sent to him on 25th May did not belong to the dead body which he had examined of 16th April, has not, as regards the vertex brae, given any reason. But in the first place the Sub-Assistant Surgeon had found on 16th April that the second cervical vertebra was cut through, and this shows clearly enough that the two vertebrate found on the later date could not belong to the dead body of April. Secondly, the Sub-Assistant Surgeon was not asked any reason for his opinion in the only Court in which he was examined, namely the Court of the committing Magistrate. Thirdly, there was nothing to prevent the Sub-Assistant Surgeon from being called to depose in the Court of Session. This should have been done because in his post mortem report the Sub-Assistant Surgeon had stated that what the police called the “approximate time of the corpse” was “probably more than a month”, while in the commitment proceedings he deposed that death took place probably more than two months before the post mortem, adding “I say it from the condition of decomposition. The process of decomposition is slower inside water”. He was not asked by the Magistrate what had made him change the opinion that he had expressed in his post mortem report; nor was he asked whether from the “condition of decomposition” noticed by him, the death could not have taken place about three months earlier though Budhni's murder is dated 18th January. No saponification was observed, and even after two days of rapid decomposition on exposure to the air, there were some viscera available. There was yet another reason for which the Sub-Assistant Surgeon might have been called, viz. the find of the left radius and ulna on the first occasion, regarding which there is a conflict between the in quest and the post mortem on one hand and the oral evidence on the other. But the medical evidence was of comparatively small importance in the case.

5. As regards the direct evidence of murder, my learned brother has pointed out how, if the story told by the two eye-witnesses Ladhu and Rebi in Court be believed, Sita would be just as guilty of the murder as Manu. The committing Magistrate has dealt with this point and referred to the fact that the Baraik, P.W 42, when he inquired from Rebi whether Sita also had committed the murder along with Manu, was definitely told that he had not. But if that part of the story of Ladhu and Rebi which relates to the participation of Sita in the murder is disbelieved, this obviously shakes the credit to be attached to their implication of Manu in the murder. The learned Judicial Commissioner observes that the eye-witnesses are both very young, that they come from a very uncivilised part of the district, that in his Court they had been describing events which had taken place nearly a year ago etc., and adds that he was left with the impression that they were trying to tell the truth to the best of their ability and had actually seen the murder committed by Manu. The considerations set out by the learned Judicial Commissioner are entitled to weight; but we cannot altogether shut our eyes to the fact that the witnesses' story against Manu was given in the same circumstances as that against Sita which has been discarded by both the Courts in which they deposed. Another circumstance bearing on the credibility of the two eye-witnesses, which has been ignored below, is the fact that though they told their story to the Inspector on 25th April, he did not have a case of murder instituted, and as was brought out in the cross-examination of Sub-Inspector Madhu, Court witness No. 2, it was the Deputy Superintendent of Police who got this done on 8th May.

6. It has been argued for the defence that the inference is that the story told to the Inspector could not be the same as that told in Court. An alternative inference is indeed possible, viz. that the Inspector failed to do the obvious thing and erroneously allowed the investigation to proceed as in a case of unnatural death. Be that as it may, the learned Judicial Commissioner should have taken appropriate steps for ascertaining whether or not the witnesses had told a different story to the Inspector. The Inspector's notes of the witnesses' statements were apparently not included in the police diaries of the case, and the learned Judicial Commissioner declined to call for them (though requested by the defence to do so) on the ground that his supervision was carried out in April before the murder case was started. This was unfortunate as the credibility of the witnesses would obviously be materially; affected, if their earliest statements to the police did not point to murder as clearly as do their later statements in Court, and this, irrespective of whether such statements were made before or after the institution of the murder case. It was still more unfortunate that the learned Judicial Commissioner also refused the request of the defence to call the Inspector as a Court witness. The “supervision note” of the Deputy Superintendent of Police was also not included in the police diaries, though it is dated 5th June as we see from what the Assistant Government Advocate obtained for us (together with the Inspector's supervision note) at our request. I doubt very much whether the learned Judicial Commissioner, if he had looked into the supervision notes of the Inspector and of the Deputy Superintendent of Police to aid him in the trial as provided in Section 172(2) of the Cr PC, would have been so ready to believe the story of Ladhu and Rebi as regards the murder.

7. It is a mistake to exclude such supervision notes from the police diaries sent to the Courts. The investigation may be (and usually is) in the hands of a Sub-Inspector and the supervision is conducted by superior officers. But the Court which may use the diaries to aid it in the inquiry or trial cannot rightly be left in ignorance of the supervision which necessarily determines the course of the investigation at point after point and in this particular case actually covered the earliest account of the murder obtained by the police. This is not the first occasion on which such notes have been found kept out of the police diaries, though supervision usually involves a fresh questioning of the principal witnesses in the course of what is still the police investigation of the case. Their exclusion is are to lead to a miscarriage of justice, if not also to leave a suspicion that something must be wrong with the investigation which it is not desired should become known to the Courts. The notes cannot of course be used as evidence, any more than can the diaries of the investigating officer himself; but they usually, make these diaries more intelligible and more useful as aids in inquiries and trials. In the present case they would have helped the Courts below to find out the value of the eyewitnesses' evidence more correctly. There is yet another circumstance which calls for remark, and that is the examination of Ladhu and Rebi among other witnesses under Section 164 of the Cr PC. It was pointed out by Prinsep, J. in the well-known case in 27 Cal 2951 that a statement of a witness obtained under this section always raises a suspicion that it has not been voluntarily made, and that the section was not intended to enable the police to obtain a statement from some person (in that case it was an incriminating statement) and as it were to put a seal on that statement by sending in that person to a Magistrate practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken. That something of this kind occurred in the present case seems clear. Ladhu speaks of being escorted to Simdega by the Sub-Inspector and constables, though he denies the presence of the Sub-Inspector in the room where the Magistrate took his statement. Rebi says that she and other witnesses had to go to the thana in the morning and come home in the evening for no less than 18 days and that they were then taken by the police to the Simdega Court where the Magistrate took their statements, and that after that the police took them home again.

8. It is not clear what importance the learned Judicial Commissioner attached to the evidence of Udai who speaks of coming out on hearing from Rebi and seeing Manu standing, are in hand, in the court-yard with Budhni fallen on the ground, etc. But Udai also was sent to the Magistrate along with the two eye-witnesses and nine other witnesses. Why these witnesses should all have been examined under S. 164 at a time when the investigation by the Sub-Inspector Ramdeal Prasad was almost complete, if not to pin them down in the commitment; and other proceedings to certain statements, does not appear. If the Sub-Inspector had any good reason for resorting to S. 164 at this stage, it ought to have been looked into. The learned Judicial Commissioner has altogether failed to attend to this aspect of the matter. The next matter on which the learned Judicial Commissioner has relied is the confession of Manu fie finds that it was voluntary, and rests this view on the facts that the man had been in jail for two days before he made his confession and that the Magistrate was satisfied from his speech and demeanour that he was making a voluntary statement. But the Magistrate has had to make so many damaging admissions against his conclusion from Manus speech and demeanour. He knew that Manu and Sita had (after escaping from the police lock-up at Kurdeg) come to him on 10th May to complain of a beating by the police. He had promised to enquire into their complaint the next morning. When they were brought before him on the 11th, he did not ask them about the alleged beating, but remanded them to jail on the report of the Simdega police that they were accused of a murder and had escaped from the lock-up at Kurdeg and that their confessions might be recorded. He admits that on 10th May they did not express any intention of making any confession and did not even tell him that they had been accused of any crime; and yet when they were again placed before him on the 13th for recording their confessions, he did not ask them anything about the beating, but first recorded Manu's confession without recording his statement that lie had been beaten by the daroga of Kurdeg “because he made it after I had finished recording his confession”; and he afterwards held what he calls a confidential enquiry into the alleged beating 1 Nor was this all. The last question put by the Magistrate to Manu at the time of recording his confession was whether his brother Sita was an accomplice in the act. After answering this in the negative, Manu is recorded to have volunteered:

I had stated everything to the Sub-Inspector of Kurdeg. The Sub-Inspector of the thana and the jamadar, both of them, asked me not to disclose these things to the superior officer who might come, adding that they would save me. Hence I stated before the Inspector and the Deputy Superintendent of Police that I did not kill Budhni.

9. How with all this before him the Magistrate could persuade himself from Manu's speech and demeanour that he was making a voluntary statement, it is not easy to imagine; and it is even more surprising that the learned Judicial Commissioner attached any importance to the opinion of the Magistrate from the speech and demeanour of the accused that the confession was voluntary. It is true that the Magistrate had given him the usual warning that he was not bound to make a confession, and that if he did make one, it might be subsequently used against him. But having regard to the very uncivilized part of the district from which Manu came, the warning could not but have been a merely formal affair. I find it also difficult to understand the remark of the learned Judicial Commissioner that he was not prepared to believe the defence suggestion about the ill-treatment and tutoring of Manu (and of Sita) at the Simdega police station for two nights “in face of the evidence given by the Sub-divisional Magistrate and the Sub-Inspector of Police”. On the admissions of the Sub-divisional Magistrate, the question would plainly arise why the man who had gone to him on 10th May to complain against the Kurdeg police and not to make a confession should, two days after his arrest by the Simdega police on a report from the Kurdeg police that he had escaped from the police lock-up there, make a confession of an offence which he said he had been asked by the Sub-Inspector of the thana and the jamadar not to disclose to the superior police officer who might come. One looks in vain into the records for an answer to this question; and if by any chance the question did not occur to the learned Judicial Commissioner, that by itself would make it impossible to accept his view that the confession is voluntary. The treatment of the confession by the learned Judicial Commissioner as substantially true is also open to remark. He regards it as a significant circumstance that after the date of occurrence Manu and Sita vacated their house and pulled it down and built another house for themselves in another part of the village. There is no question that Manu and Sita did so; but if any inference was to be drawn from that circumstance against the accused, it should have been put to them, and the simple explanation suggested by the record should not have been overlooked, namely that they preferred to abandon a house in which they had lost so many relatives in recent times. The learned Judicial Commissioner considers that Manu's statement in his confession regarding the digging of a hole in the room was corroborated by the find of a hole in that room. We do not know the size of the roorh, but having regard to Manu's position in life, the hole which is said to be 4 × 1½ × 1½ cubits may betaken to be relatively large. Would such a hole be overlooked and remain there for months after the house itself had been-pulled down and the materials utilised for building another house? Such things do happen sometimes but are not very probable, and the demolition of the house may possibly have furnished some explanation if the point had been put to the accused under Section 342 of the Cr PC. Another consideration which has been overlooked arises-on the confession, according to which Manu had called Budhni from Khinda in order that she might look after the widow of her step-son who was ill and Budhni came in the evening of the Monday, safe in the angan and said: “I have already caused Mato (?) to be killed. I shall cause all the remaining salas also to be killed.”

10. Budhni does not, according to the confession, seem to have said this to Manu or anybody else in particular, but Manu heard it as he was in the adjoining house. But this story seems inconsistent with the evidence in the case and is improbable in itself-If Budhni was called to look after her step-daughter-in-law and came for that purpose, why should she, sitting in the angan, speak, to nobody in particular of causing her surviving relations to be killed? Ladha and Rebi give a more intelligible account, when they say that Budhni was weeping and saying “You are all dying off” or “you are dying here, why not move to Chotki Biura or Kurdeg?” But that is not Manu's account in the confession, which the learned Judicial Commissioner has found to be substantially true. Manu says that it was Budhni who had, by means of witchcraft, brought about the death of his-father and of Sita's wife. Assuming that this was substantially true, would Budhni dwell on her powers as a witch without any apparent reason as we have it from Mann's confession? That Manu claimed to have given only one blow to the unfortunate Budhni “with the other side of the iron of the are”, without drawing any blood, and that he expressly denied cutting the hands or throat of the dead body at the time of throwing it into the tank, cannot also be regarded as altogether immaterial on the point whether the confession is substantially true.

11. Such confessions do undoubtedly tend to minimise the part played by the offenders; but in the present case, if the blow given by Manu (as the confession itself says) brought about Budhni's death, why should he—if the confession were substantially true—deny cutting the throat and the hands of the dead body, while taking care from the beginning to exculpate his brother Sita, though it is fairly obvious that he alone could not have carried the dead body from the house to the tank? I am therefore unable to accept as correct the view of the learned Judicial Commissioner that the confession was substantially true,—any more than I can accept the view that it was voluntary; and I have already shown why it is impossible to accept his estimate of the value of witnesses like Rebi and Ladhu, to say nothing of Udai who too (as I have already said) was examined under Section 164 of the Cr PC. There may have been neglect (if not something worse) in the earlier stages of the investigation: that primarily is a matter for the police authorities. The evidence and the confession ought, nevertheless, to have been carefully scrutinized before being acted upon.

V.B.B/R.K

12. Conviction set aside.