Ratan Gond v. the State of Bihar

Judgment

StTPREME COURT REPORTS [1959] r958 This wrapper had blood-stains. They (l;itre too sma.11 B . . in quantity to enable a. S@rologist to determine their tpon /Jtloa" k Ll h bl d SarAar & Another Or11pn, Ut It IS rema.r a .. e t at W ere\·er t 0 00 • sta.ms were found on the wrapper a.n a.tternpt had The State of been ma.de t-0 burn out those ma.rks. Unfortunately, Wtst Bencal for the a.ppella.nt, his attempt to burn out th•3 bl<iod- Imam ]. Stplrmbtf' r9 stains on the wrapper was not entirely successful. This was, in our opinion, an incriminating circumstance against this appellant. Tho circumstantial evidence taken as a whole leaves no room for 1~ reasonable doubt in our minds about the guilt of th is appellant. In our opinion, the High Court rightly found the appellants guilty under s. 302/34 of the lndiim Penal Code. It could not be said that the sentence of death. for a. murder of the kind proved in this case was unduly severe. The appeals a.re accordingly dismisser!.

Appeals dismi8sed . RATAN GOND THE STATE 01'' BIHAR (JAFER IMAM, S. K. DAS and J. L. KAPUR JJ.) Jo:videncc-Statemwt of dt'ad person 11ot made in j"dicial proceeding or to puso" at4lhorised nor relating to the cause of hts death- Admis~ibility-Co,.fession-Perso" in authority- Cir.:umstantial t:vidence-Use in corroboration of confession-/11dian Ei·ide1Ju Act, (/ of 1872), ss. 24, 32 and 33. The appellant was charged with the murder of a girl Haisakhi. On information gi,·cn by Aghani, younger sister of the deceased, the headless body of the decease<! was recovered. The "appellant absconded but was found ;n another village and was brought back by the village voluTlteer force. On interrogation by the ~lakhia, Sarpanch and a panch of the Gram Panchayat the appellant mad< an extraju<licial confessi'on. A blood-stained cutting ."'c~pon was rep covered fronra room of the appellant. At 111s mslance some sttands of hair \Vere recovered from a place at• a short •distance S.C.R. SUPR!j:ME COURT REPORTS from the plac"> "'11.ere the dead ·body had been recovered, which were stained with human blood i-nd appeared to be scalp hair of a human female.

The appef!ant jVaS convicted and sentenced to Ratan Gond death and the High Court upheld the conviction and sentence. The Courts took into consideration the statements made by Th• Stats 0! Bthor ·Aghani to her mother and io other persons that the deceased wa~ last seen in the company of the appellant. Aghani, however, died before her statement could be recorded in a judicial proceeding. It was contended by the appellant that the statements of Aghani were inadmissible, that the extra-judicial confession was not relevant and that the circumstantial evidence was not sufficient to establish the guilt of the appellant. Held, that the statements of Aghani were not admissible either under s. 32 or s .. 33 of the Evidence Act. Section 33 had no application as her statement was not made in any judicial proceeding or before any person authorised by law to record the same.

The statements did not relate to the cause of her death •or to any circumstances relating to her death but related to the death of her sister and did not fall under cl. r of s. 32 which was the only clause which could have any bearing on the question. Held, further, that though having regard to the Bihar Panchayat Raj Act, the Mukhia, Sarpanch and panch of the • Gram Panch~yat to whom the extra-judicial confession was made were persons in authority within the meaning of s. 24 Evidence Act, no. threat, promise or inducement for making the confession was proved. The facts that the appellant was brought back to 'the Village by the village volunteer force and that it took two or three hours before he made the confession do not indicate that the confession was not voluntary. Jhere was nothing to show that the confession contained any untrue or inaccurate statement.

The circumstantial evidence may not be sufficient by itself to prove the guilt of the appellant, but it afforded sufficient corroboration to the confession and the corroboration was of such a nature as to connect the appellant with the murder.• CR.IMINAL APPELLATE JURISDICTION: ·Criminal Appeal No. 76 of 1958. Appeal by special leave from the judgment and order dated March 4, 1958, of the Patna High Court in Criminal Appeal No. 50 of 1958 and Death Reference No.'6 of 1958 arising out of the judgment and order dated January 18, 1958, of the Court of the 1st Additional Judicial Commissioner of; Chotanagpur at Ranchi in Sessions Trial No. XC of 1957: . B. R~ L. Iyengar, for the appellant. SUPREME COURT REJ'ORTS [1959] r95a R. H. Dhebar, for the respondent. RaJa11 Gond 1958. Sept.ember 19. Theo Judgment of the Court was delivered by 'Thi Stat1 of BiJia,. S. K. DAS J.-This is an appeal by special leave. 5. K. Das J. The appellant is Ra.tan Gond, aged about 28 ytl!l.rs.

Tried on a. charge under s. 302, Indian Pena.I Gode, he was convicted a.nd sentenced to death by the learned Additional Judicial Commissioner of Ranchi in the State of Bihar. The learned Additional Judicial Commissioner submitted the record to the High Court of Patna. for confirmation of the sentence, as he was required to do under the provisions of s. 374 of tho Code of Criminal Procedure. Rata.n Gohd also preferred an appeal to tho High Court. The appeal and the, reference under s. 374, Criminal Procedure Code, were heard together by a Di vision Bench of the said High Court and it accepted the reference and dismissed the appeal thereby confirming the sentence of deatn passed upon the appellant. On May 19, 1958, the appellant prayed for and obtained special leave ana then filed • the present appeal in pursuance of the leave granted to him. The facts lie within a narrow compass.

The appel-· lirnt was a resident of village Urte, Tola Banmunda, police station Kolebera in the district of Rimchi. Ono Mst. Jatri (P. W. 2), who was a widow, also lived in the same village and same Tola. She had two young daughters, one named Baisakhi and the other named Aghani. Baisakhi was about nine years old and Aghani about five years old. The subject of the 'present appeal is the murder of the girl Baisakhi. On a Tuesday, May 7, 1957, tho two sisters, Baisakhi and A"hani, had gone out to pluck wild berries iu a hilly jn~1gle situated at a short distance from their Yillage, the distance being estimated varionsly by various witnesses from 300 vards to a little more th:m a mile . w c may give here. some idea of the location or the village and t.he hilly area. near it. Accordiag to the evidence of fu.Jp Rt1.m (P. W. 1), uncle of the two girls, Tola Banmunda. consists of a.bout 40 hou,ies. At a snort distance to the north, there is a hil'ly tn.ct"known S.C.R. as Amtis Chua ell!.

Close to the hill, there are jungles '958 on two sides and there is a,so a spring or well in Ratan Gond between the two strips of jungle's. On Tuesday, Mst. Jatri (P. W. 2) had herself gone to pluck berries The Stato of Bihar known as Keond berries at another place. When she left the house in the morning, her two daughters'were 5• K. Das J. in the house. Mst. Jatri came back at about noon and found Aghani alone in the house. She enquired from Aghani about the elder sister Baisakhi and Aghani made certain statements to her mother as well as to other persons later that day and the next day. Aghani, however, died within a few months of the occurrence, before her statements could be recorded in a judicial proceeding. The courts below have referred to,.and the High Court has relied on, the statements of Aghani. One of the points urged on behalf of the appellant is that the statements of Aghani were not admissible in evidence either under s. 32 or s. 33 of the Evidence Act {l of 1872).

As we are of the view th.,at this coniention is correct, we are omitting all ·reference to the statements of Aghani in stating the facts of the case. When Baisakhi did not return to the house" even in the evening ,Mst. Jatri went in the dir'ection of Amtis Chua hill, but could not find Baisakhi. Next morning, information was sent to Rup Ram (P. W. 1) about the fact that 'Bai'sakhi was missing, Rup Ram having gone to village Targa for making tiles on the preceding Monday. Rup Ram came back to Banmunda on Wednesday, May 8, 1957. In the m~antime certain other villagers including Dalpat Sai(P. W. 4),mukhia of the village, and Sohar (P. W. 5>, chaukidar of the village, had been informed that Baisakhi was missing. Aghani took Rup Ram and these villagers to the foot of Amtis Chua hill and showed them the spring or well. This village party found the headless body of Baisakhi a~ a short distanc~ from the aforesaid spring. The body was identified by Mst.

Jatr\ and others as the dead body of Baisakhi by reason of the white saree of yellow border which Baisakhi was wearing, fi~e red" churi&" round the.right hand, two red "churis" round the • [1959] left hand, one " bera " round the left l~nd, one brass ring on the left finger afld -certain beads of a "ma.la. " Ralan Gon4 which Ba.isakhi had piit on. \Vhen the headless dead The s1a1. of Dihar body was discovered and identified, Dalp~.t Sa.i left some of his companions to guard the dead body and s. K. Dos J. went'to the house of tho appellant, but did not fiii1d him there. Ho then sent Rup Ram and the ch:rnkidar to the police station which was at a distance of 43 miles. He also sent some voluntoors of the Gram l'a.ncha.yat to look for the appellant. On Thursday, MILy 9, 1957, at about 10 a.m., Rup Ram and the chaukida.r appeared at the police station of Kolebera and Rup Ham gave an information, which was recorded by the Assistant Sub-Inspector of Police.

This information referred to the statements of Aghani and to the otber facts which had been discovered by that time. On the same Thursday, the appellant was found in the house of his sister's husband in another village called Ka.rmapani. The appellant was caught hold of by the village volunteers and brought b11ock to villa~e Banmunda. on Thursday. At about 1 or 2 p. m. on • that day, he was questioned by Dalpat Sai (P,W.4) mukhia of the Gram Pa.nchayat, Krishna· Chandra. Singh (P. W. 7), Sarpanch of tho Gram Panchayat, and Pra.duma.n Singh (P. W. 13), one of the panches of the Panchityat, and it is stated that the appellant made i.n extra-judicial confession to these persons to the effect that he had killed the child :Baisakhi for greed of money, as a contract-Or who was building a bridge on the Lurki river had offered H.s. 80 for a human head.

The appellant was detai,1ed by the aforesaid village authorities till the As3ista,nt Sub- Inspector of Police arrived at tho villagE• on Friday, May 10, 1957. The Assistant Sub-Inspector arrived at about 3 a.m. He was taken to the place where the headless ,dead body of Ba.isakhi lay. Tho Assistant Sub-Inspector made an inquest on the dead body and seized the articles found there inch1ding 29 beads of tho "mala" which Baisakhi 'was wearing and which lay scattered 'llear the place. The A3sistant Sub- • Inspect-Or ·of Police arrested the appcll<.nt, who was already in custody of the mukhia. The house of the S.C.R. SUPREM:Jll COURT REPORTS· appellant was. then searched and a sharp cutting z958 weapon called " balua" Wa.B found in the north facing R•••n GoHa room of the house, between a wall and the roof. This "balua " had certain blood-stains on it, but the stains The Slat• of Bihar having disintegrated, the origin of the blood could not be det1irmined.

It is stated that on being questioned s. K. Dtu J. where the head of the girl Baisakhi was, the appellant took the Assistant Sub-Inspector of Police and some of the villagers to a place at a short distance of 100 yards or so from where the dead body was. At that place were discovered some strands of bloodstained hair which were seized by the Assistant Sub. Inspector of Police. The strands of hair looked like the hair on the head of a female person and the CJ::i.emical Examiner later reported that the strands of hair were st,ained with human blood and "appeared to be scalp hair of human (female) origin morphologically". After further investigation by two different Sub-Inspectors of Police, the appellant was sent up for trial. Th~re was an enquiry by a Magistrate of • tlie first class, who, at the conclusion of the enquiry, committed the appellant for trial by the Court of Session. • 'i'he defence of the a ppellartt was that he had been falsely implicated.

He denied that he killed Baisakhi near the jungle at Amtis Chua hill. He.further denied that he had made any extra-judicial confession to Dalp11t Sai, Krishna Chandra Singh and Praduman Singh. He deuied that any blood-stained weapon was found in his house by the Assistant Sub-Inspector of Police anci he also denied that he was absent from his village or was found in the house of his sister's husband in village Karmapani. The learned Additional Judicial Commissioner, as also the High Court, rightly stated that the case against the appellant rested on (a) circumstantial · evidence and (b) the extra-judicial confession stated to havli been made by the appellant. The courts below concurrently heltl that the extra-judicial confession was voluntary and it did not a,ppea.r to the.m to have been_ caused by any inducement,· threat or promise ha. ving reference to the charge made against • .SUPREME COURT ~EPORTS [1959) r958 the appellant so as to attract the pr<Jvisions of s. 24 Rot ...

Go•d of ;he .Evidhenco A 1 ct. ,dT~y further held that the con1ess10n, t ough ater emed by the appellant, was Th• s1.,, of Biha• sufficiently corroborated by the circumstantial evidence and the confession and the circumstantial evidence s. 1<. Dos J. read , together led to only one reasonable inforence, namely, that the appellant had killed t.he child Baisakhi in the hope of getting some monoy. It is not disputed that in an appeal filed by special leave under Art. 136 of the Constitution it is not normally open to the appellant to raise questions of fact or to ask for interference by us with concurrent findings of fact, unless the findings aro vitiated by errors of law or the conclusions reached by t.he courts below are so patently opposed to well-established principles as to amount to a miscarriage of justi~e­ Mr. Iyengar for the appellant has urged before us three main points. :Firstly, he has submitted that the extra-judicial confession said to have been made by the appellant is not admissible in eviden~e.

Secondly, he has contended that even if admissible, there is 1fo guarantee of its truth. Thirdly, he has submitted that even with regard to circumstantial evidence, the courts below have relied tm inadmissible evidence, with particular reference to tho statements of Aghani, to establish oqe of tho circumstances, namely, that the appellant was last seen with Baisakhi oefore her murder. His argument is that the other cireumstances established against the appellant, namely, tho recovery of the blood-stained "balua ", of the blood-stained hair and the absence of the appellant from the village on. Wednesday, do not carry the case against the appellant far enough so as to complete the chain and make them inconsistent with any hypothesis other than the guilt of tho appellant.

He haE. submitted that in considering the circumstantial evidence in this case the ·courts below have departed from the wellestablished principle that the circumstances afflrmativoly proved against an accu~ed person must be of such a chli.racter as to be consistent only with his g~ilt and inconsistent with any reasonable hypothesis • of his innocence. S.C.R. SUPRE},t:E COURT REPORTS Before we $lx.'amine the aforesaid submissions, it is necessary to state that the fi11ding of the courts below Ratan Gond that Baisakhi was murdered s~me time between May 7 and May 8, 1957, and that the headless dead body which Th• state of Bihar was discovered on May 8, 1957, was correctly identified as the dead body of the girl Baisakhi has noi been s. K. Das J. challenged before us.

The post-mortem examination on the dead body was held on May 11, 1957, and the ante-mortem injuries which the doctor found were (1) complete severance of the head from the neck, (2) one incised wound on the left shoulder and (3) an incised wound on the left upper arm. The doctor's evidence makes it quite clear that the unfortunate girl was brutally done to death. The identification of the headless dead body also rests on a very sure foundation .. We have already referred to the clothing, ring, beads, etc., from which the identity of the dead body was established. The murder of the girl Bu,isakhi having been clearly established, the courts below rightly applied their mind to a consideration of the principa1 question . in the case, namely, if the appellant was responsible for that murder. This 'brings us to a consideration of the submissions made on behalf of the appellant.

We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghani,. who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under s. 32 or s. 33 of the Evidence Act. Section 33 is clearly out of the way because Aghani made no statements in a judicial proceeding or before any pocson authorised by law to take her evidence. The only relevant clause of s. 32 which may be said to have any bearing is cl. (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction w h"ich resulted in hi~ death. In the case before us, the statements made by Aghani do"not relate to the cause of her death or to any of the circumstances relating tu her death; on the contrary, the statements ·relate to the death o:!'her sis1!er.

We are, therefore, of the opinion 8UPREME COURT REPORTS [1959] that the statements do not come withifl ;. 32(1) of the Evidence Act and, indeed>, Mr. Dhohar appearing on Ralar1 Con.I behalf of the State, has oonceded thats. 32(1} does not Ti.. si.1e of Bihar apply to t.he statements of Aghani. Excluding tho stateipents of Aghani, what then is s. K. Das J. the evidence against the appellant? firstly, wo have the extra-judicial confession. Then, we h:~ve the following circumstances which the courts below have held to have been clearly established against the appellant, namely, (a) recovery of the blood-stained " balm~ " from a room of the appellant, (b) recovery of the blood-stained strands of hair from a placc pointed out by the appellant and (c) disappearance of the appellant from the village immediately after the murder and his arrest in village Karmapani in circum0 stances mentioned by Maheshwar Sai (P. W. 6).

Lastly, there is another ad verse circumstance which arises out; of the total denial by the appellant of the rec·Jvery of the blood-stained " balua " and of his arrest in villa.go Karmapani. As to the extra-judicial eonJ"ession, two questions arise: is it voluntary, and, if so, is it true?" The a.ppclla.nt denied at a. later stage that; he had made a confession, but it is not necessary f,o consider in this ca.so tho abstract question as to ·.vhether, as against its maker, a conviction can be based on a confession w b.ica is found to be voluntary and true.

It is enough to stale that usually and as a matter of caution, courts require some material corroboration to such a confessional statement, corroboration which connects the accused person wit.h the crime in 3uestion, arid the real question which falls for decision in tho present case is if the circumstances proved against the appellant afford sufficient corroboration to tl:.e confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true. Let us first see if the confession was voluntary. Section 24 of the Evidence Act states: "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the. confession apipcars to the Court to have been caused by any inducement, threat or promise having reference to the charge against the"accused person, S.O.R. SUPREME COURT REPORTfS proceeding fr'ilni a person in authority and sufficient, ·z9sB in the opinion of the Oou£t, 1lo give the accused person Ratan Gond grounds which would appeftr to him reasonable for supposing that by making it he would gain any The Stal• of Bihar advantage or avoid any evil of a temporal nature in reference to the proceedings against him". s.

K. Das J. Mr. Iyengar has referred us to the evidence of the three witnesses, Dalpat Sai (P.W. 4), Krishna Chandra Singh (P. W. 7), and Praduman Singh (P. W. 13), Mukhia, Sarpanch and Panch respectively of the Gram Panchayat. We agree with Mr. Iyengar that having regard to the provisions of the Bihar Panchayat Raj Act (Bihar VIII of 1948) the aforesaid three persons can be said to be persons in authority within Johe meaning of s. 24. The question, however, is-are there any circumstances which tend to show '.that the making of the confession appears to have been caused by any inducement, threat or promise, having reference to the charge against the appellant and proceedjng from any one of the aforesaid three persons and sufficient in the opinion of the court to give the appellant grounds which would appear to him to be reasonable for supposing th~t by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

The courts below have categorically 1mswered this question ill' the negative .. We have examined the evidence of the three witnesses mentioned above. That evidence shows that the appellant was brought to the house of Dalpat Sai (P. W. 4) at about 10 a. m. on Thursday (May 9, 1957). He was questioned for some time;. Dalpat Sai (P.W. 4) said that he was questi6ned for about two hours. The evidence of Dalpat Sai makes it clear, however, that it was not a process of continuous questioning for two hours. Ratan was given some food and then, when he was questioned, he kept quiet for some time and then said that he had kille\l the girl because the contractor who was building the bridge on river Lurki had offered to pay a sum of Rs. 80 for a huma.n hood. Having examin~d the evidence of the three witnesses who prove the extra:judioial confession, we do not come to 5UPREME COURT REPORTS [1959] '958 a conclusion different from the one arr~ved at by the l/aton Go>1d courts below. Mr. IyengAr rderred us to the observa. tio11s made by Cave J. (Its he then was) in The Queen Tio• s101e of Bihor v. Thompson(').

That was a case in which a prisoner was tried for embezzling the money of a comp1rny. It 5· K. Dos f · was proved at the trial that, being taxed with the crime by the Chairman of the company, the prisoner said that he had taken the money. The Chairman stated that at the time of the confession, no threat or promise was made, but he said to the prisoner's brother, " It will be the right thing for your brother tu make a statement " and the court drew the inference f,hat the prisoner, when he made the confession, knew ·chat the Chairman had spoken these words tu his brother. In these circumstance$, the learned Judge said: "I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in rase of doubt, that the prisoner's statement was free and voluntary, and that they did not discharge themselves of this obliga· tion ".

He further added that there \~re always reasons to suspect those confessions which were· supposed to be the offspring of penitence and remorse, and which nevertheless were repudiated by the prisoner at the trial. It is true that in the case under our con'. sideration the appellant denied to have ma.de the confession wliieh he had made earlier; but we find no such circumstances as Wl're present in Tl!11mpson's case('), such as the statement of the Chairm<~n of the company to the brother of the prisoner. It is true that the appellant was brought back from village .Karmapani by members of the village volunteer force. He was•ta.ken to the vil11tgo authorities to whom he.made a confession. The evidence does not even remotely suggest that, any threat, promise or inducen:.ent was made. The only circumstance relied on by Mr. Iyengar is that it took about two tu three hours from ;he tinrn when the appellant was brought to the howie ~f the mukhia. up to the time when he made his confessional statement. :\Ir.

Iyengar has relied Oil In re Kataru Chiuna l'apiah ('}, where a Superintendent of Police ~uestioned tlie !iCCused person for fom; hours ~t night (1) (1893) 2 Q. B. 12, 18: (•) A.l.R. 1940 Mad. J36 . 'c ...... I S.C.R. SUPREME COURT REPORT8 and again foi 'two hours in the morning. It was z958 pointed out that this was Mflagrant violation of the 1 t 1 ' th · t ffi Ratan Gond re evan ru e m e ms rue 1000 ISsue o po we o cers. All that we need say is that there was no such ques- The state of Bihar tioning in the present case. Another decision to which Mr. lyengar has invited our attention is H11,shmat s. 1c. Das J. Khan v. The Grown (1). We do not think that that decision is of any assistance to Mr. Iyengar. It was held therein that a mere possibility of there having been some inducement is not sufficient to attract s.

24 of the Evidence Act; but only when it appears to the court" that the confession has been made as a result of some inducement held out by a person in authority that it becomes irrelevant. That was a case in which t}le accused person, when questioned, was told that it would be better for him if he told the truth ; it was held that this amounted to an inducement within the meaning of s. 24 of the Indian Evidence Act. As to the trnth of the confession, nothing has been brought to opr notice which would show that -the confessional statement contained any untrue or inaccurate statement. It is true that the prosecution has given no evidence to show that the contractor who was building the bridge over river Lurk'i, or for that matter, any contractor, had offered a sum of Rs. 80 for a human head.

In the very nature of things, i1; is not expected that any contractor, even if he had made such an offer, will admit having done so, and we do not think that the prosecution can be asked to give evidence in support of any such offer. We recognise that in ordinary 'and normal circumstances nobody asks for a human head for building a bridge ; nor is it uaual normally for a person to accept such an offer, even if it is made. We must not forget, however, that we are dealing in this case with aboriginal people who are still steeped in superstition. It is worthy of note that Maheshwar Sai (P. vV. 6) said that when the appellant was taken in custody in village Karmapani, he did not even enquire why he was arrested; on the contrary, he offered Rs. 20 and a he-goat to the witness and (1) (I934J I.L.R. r5 Lah. 856. IJl SUPREME COURT R~PORTS [1959] 1 958 implored the latter to save him. S11ch a statement was again of an incrilllin11otory nature, and if the Ra1,u1 Gond evidence of !\1aheshwar.

Sai is correct, the statement n, s1.1e of Uiha• was absolutely voluntary and was not the result, of any questioning at all. For these reasons, we do not think s. K. Das J. that ihe reference to an offer of Rs. 80 for i. hJJman head in the confessional statement of the appellant necessarily destroys it.~ veracity. There can be no doubt that the recovery of the blood-stained" balua" (even though the origin of the blood could not he determined owing to di:iintegra. tion) and of the blood-stained strands of female h1tir at the place pointed out by the appellant, a.re circum. stances clearly proved against the appellant. These circumstances may not be sufficient by themselves t-0 prove that the appellant was the murderer, but there is no doubt that they lend assurance to the confes. sional statement of the appellant, assurance of a kind which connects t.he appellant with the crimn in question.

This is a case in which the confession and the circumstances have to be read together. 'There is th~ additional circumstance that soon after the murder the appellant disappeared from his village 1\nd when arrested in another villa~, his conduct was weh as kl show that he was suffering from a guilty mind. On the top of all this, there is the total denial by the appellant that any blood-stained "balua." was recovered from his house or that he disappeared from the village after the murder. It is unfortunate that the leiu·ned Additional Judicial Commissioner did not ask the appellant to explain the recovery of the blootl-stained strands of female hair. That was an important circumRtance against the appellant and when the learned Additional Judicial Commissioner examined the appellant under the provisions of s. 342 of tho Code of Criminal Procedure he should have asked the a.ppel- !ant to eieplain this circumstance.

We take this opportunity of inviting the attention of the lt!arned Additional ,Judicial Commission'tlr to this very serious om1ss10n. Another omission on the part of the learned Additional Judicial Commissioner is hi:i failure to 'comply with the provisions of s. 2817 of th'I': Code of S.C.R. Criminal Procedure. The examination of the accused '958 recorded by or before the ()orhmitting Magistrate does Ratan Gond not appear to have been tendered by the prosecutor in the present case ; at least we do not find any such The Stat• of Bihar statement in the printed paper-book. We are satisfied, how~er, that no prejudice has been caused, The 5 · I<. Das J. Assistant Sub-Inspector of Police who gave evidence of the recovery of blood-stained hair from a place pointed out by the appellant was not even cross-examined on the point.

The defence of the appellant was a total denial and even if the recovery of the blood-stained strands of female hair was put to the appellant, he would undoubtedly have denied such recovery as having been made at his pointing out the pl.ace. To sum up: we see no reasons to differ from the conclusion arrived at by the courts below that the confessional statement made by the appellant was voluntary and admissible ; there are no reasons for thinking th11,t it was not true. The circumstances clearly proved against the appellant, even excluding the circumstance which rested on the statements of Aghani; afford sufficient corroboration to the confession of the appellant, thougli. denied at a later stage, and the corroboration is of such a nature as to connect the appellant with the murder of the· child Baisakhi.

The only reasonable inference which can be drawn from the confession read with the circumstantial evidence is that the appellant killed the child Baisakhi between ,May 7 and 8, 1957, in the hope of getting some money. Whether that hope was realised or not is mm::e than we can tell. The head was neverrecovered, but there can be no doubt that the dead body was correctly identified to be the dead body of the child Baisakhi. As to the sentence, in view of the circumstances in w hici. the child Baisakhi was killed, we do not think that we shall be justil}ed in interfering with it in the present case. For these reasons, we hold that· the appeal is without merit and must be odismissed. Appeal di~missed.