Varma, J.This is a reference u/s 374, Criminal P.C., by the Judicial Commissioner of Chota Nagpur, who has passed the sentence of death upon Mangru Kisan, aged 25 years, and Bagul Khorwar, aged 27 years, u/s 302, I.P.C. for the murder of one Lakhu alias Labha Kisan, aged about 20 years according to the post mortem report. The accused have also appealed from jail and their appeal has been heard along with this reference.

2. The murder seems to have been committed on the night of 25th January 1937. It came to light in a peculiar manner. One Kashi Prasad (P. W. l), a constable, while he was passing the dak bungalow in Mahuandar noticed a dead body covered with a cloth and a dog near about it. He informed the Sub-Inspector who came to the spot. The Sub-Inspector found that the throat of the dead man had been out. He drew up a first information report (Ex. 8) on his own information, as well as an inquest report and a list of articles found. The dead body was naked except for a vest and the dhoti covered the dead body (Exs. 5 and 4 respectively). A neck thread with ornaments (Ex. 6) and a waist thread with a purse and tweezers (Ex. 7) and some rice dyed yellow (Ex. 10) were found lying near the dead body. Similar rice was found tied in a corner of the dhoti. It was on 26th January, which happened to be a chaukidari parade day, and the Sub-Inspector showed the dead body to the various chaukidars who had assembled. One Ghunja, chaukidar of Nawatcli, identified the dead body as that of Lakhu Kisan of his village. Later on the dead body was identified by Lakhua wife (P. W. 3), Baghu Kisan (P. W. 6) and Damber Kisan (P. W. 20) of Nawatoli. After identification the dead body was sent for post mortem examination. The Assistant Surgeon who held the post mortem examination found three incised wounds on the right side of the cervical region (neck) at the level of the 3rd, 4th and 6th cervical vertebrae, All the injuries were almost horizontal but at slightly lower level in front. The wounds measured 6", 6" and 7" respectively in length. The depth of each was 4" to 5", and the width of each was 1" to 2". Death, according to the Assistant Surgeon, was due to the neck injuries which had been caused by a sharp-cutting instrument by some man or men, and each injury was sufficient to cause instantaneous death. In the opinion of the Assistant Surgeon the injuries could be caused by a balua.

4. The Sub-Inspector started investigation and on 27th January 1937 on receipt of some information he went to the house of Bagul, accused, in Gawalkhar village. He found Bagul there and searched his house. Inside the house he found a vest (Ex. 14) and a pair of shorts (Ex. 15) which bore suspicious stains. Then the Sub-Inspector went to village Berapahar where Mangru lives, and found Mangrus wife in the act of washing three male garments (Exs, 11, 12 and 13). These garments also bore suspicious stains. The Sub-Inspector then, went out in search of Mangru and found him in village Marhari where he arrested) Mangru. Mangru was wearing a dhoti (Ex. 17) which bore suspicious stains. Then in consequence of certain statements made by Mangru, the Sub-Inspector went to the house of Sudan Kisan in Gurgurtoli where Sudans wife produced an axe (Ex. 9) from under the eaves at the back of the house belonging to another Sudan. The axe also had some stains which the Sub-Inspector took to be blood stains. Then on 28th January the Sub-Inspector on the strength of some statements made by Mangru went to Berapahar jungle where Mangru produced three garments (Exs. 1, 2 and 3). The Sub-Inspeotor noticed suspicious stains on Exs. 1 and 2.

5. These materials were sent to the Chemical Examiner from whose report (Ex. 4) it appears that be found human blood on Exs. 1 and 2 found in the jungle, on Exs. 4, 5 and 6 found on the dead body, on Exs. 12 and 13 found with Mangrus wife, on Ex. 15 the shorts found in Baguls house, on Ex. 17 found on Mangrus pereon, on Ex. 9 the Balua, and also on some bark taken from the mahua tree and in a sample of earth taken from underneath the corpse. Blood stains were found on Exs. 11 (found with Mangrus wife) and 14 (found in Baguls house), but the Chemical Examiner could not determine the origin of the blood.

6. From the post mortem examination, it appears that the deceased had three in. juries on the right side of the neck each of which was sufficient in itself to cause his death, and further the doctor was of opinion that the wounds could be inflicted with an axe, and judging from the nature of the wounds he thought that the man was either asleep or intoxicated when he sustained the injuries. There is no direct evidence in this case, and the witnesses examined can be classified into sets speaking about the motive for the crime, the incidents immediately preceding the crime, and incidents after the crime. (His Lordship then discussed the evidence and proceeded).

7. On this evidence the learned Judicial Commissioner has convicted both the accused u/s 302, I.P.C., and awarded the capital sentence. Mr. K. K. Banerji, while dealing with the case of Mangru, has referred to the various items of evidence against him and tried to point out that these taken individually do not lead towards the guilt of the accused; but where it is a case of circumstantial evidence, the Court has to see whether the evidence taken as a whole points conclusively towards the guilt of the accused. In the case of Mangru the evidence is conclusive. His intrigue with Ghasni afforded sufficient motive for the crime, his inquiries about the movements of the deceased, his finding out articles from the Berapahar jungle which bore signs of blood, the finding of blood stained clothes from his house, his borrowing the balua from his brother-in-law which bore blood stains, and finally his extra-judicial confession to his brother-in-law Sudan which was heard by his brother-in-laws wife Pardesia leave no room for doubt that Mangru committed the crime of which he has been convicted and sentenced.

8. Mr. K.K. Banerji lays special stress on the case of Bagul and says that the evidence against him is not conclusive. He raises a point of law that the retracted confession of a co-accused should not be taken into consideration to come to a finding of guilt of any person, and for this proposition he refers to various cases. He refers to Barnabas Chistian v. Emperor A.I.R.1934. Pat. 586 where it was held that a confession which has been retracted must be viewed with suspicion, but if it is considered to have been a voluntary confession and substantially true, it can be admitted into evidence and used against its maker, and that if it is considered to be such a confession as substantially implicates its maker in regard to the crime with which he and the co-accused are charged, it can be used also against the co-accused, but even then it can carry no weight, except where it is substantially corroborated by good evidence from other sources.

9. He then refers to Emperor v. Gangappa Kardeppa A.I.R.1914. Bom. 305 where it was pointed out that the High Courts in India have laid down the rule of practice which had all the reverence of law, that a conviction founded solely on the confession of a co-accused could not be sustained, although there was nothing in Section 30, Evidence Act which prevented the Court from convicting after taking the confession of a co-accused into consideration. The strongest case in his favour is Kasimuddin and Others Vs. Emperor, where dealing with a retracted and uncorroborated confession of an accused person, their Lordships observed that such a confession has no value at all against the co-accused. This they have stated as a proposition of law relying on Emperor v. Lalit Mohan 1911 38 Cal. 559 which in turn is based on Yasin v. King Emperor 28 Cal. 689 .

10. But whatever views may have been expressed elsewhere, in our own High Court it was laid down in Guja Majhi v. Emperor A.I.R.1917. Pat. 247 that a retracted confession was admissible in evidence against the accused. In Sheonarin Singh v. Emperor A.I.R.1929. Pat. 212 it was laid down that a retracted confession is admissible in evidence, but should have no weight attached to it unless it is corroborated in material particulars or the tribunal comes to the conclusion that the statement as a whole is a truthful statement. In either of these cases the retracted statement must be given full weight and may be used against a co-accused. In the judgment, speaking of retracted confessions, their Lordships said that a retracted confession must be regarded with stronger suspicion than that which attached to the confession of an approver who gives evidence in Court. But nevertheless such evidence is admissible and criticisms upon it can only be directed to its cogency.

11. In Pratap Singh v. Emperor A.I.R.1925. Lah. 605 it was laid down in agreement with the Patna view that the fact that a confession once made has been retracted is immaterial as regards the legality of the admission of the confession as evidence either against the person who made it (of whose conviction it may form the basis even without corroborative evidence) or as against other persons tried jointly with him for the same offence. But the weight to be attached to a retracted confession depends upon the circumstances of each particular case. Looking at these cases, I feel no doubt that the law is as stated in Sheonarin Singh v. Emperor A.I.R.1929. Pat. 212 and has not been affected by any observations in Barnabas Chistian v. Emperor A.I.R.1934. Pat. 586. A retracted confession by a co-accused is admissible in evidence but the rule of prudence is to seek corroboration before the conviction of a co-accused is based thereon; as to what the nature of the corroboration should be will depend upon the facts of each particular case. In accordance with this proposition of law we have to consider the case of Bagul. (His Lordship then discussed the evidence and proceeded.) In these circumstances I have no doubt that the charge of murder has been brought home to Bagul conclusively.

12. Then comes the question of sentence. So far as Mangru is concerned, his motive was a sordid one, he wanted to have the deceaseds wife and for this purpose he committed the crime. There is no extenuating circumstance. Although I have no doubt about the guilt of Bagul, at first sight the part taken by him did not appear to be so important as that of Mangru; but on further consideration I am of opinion that this accused is equally responsible. Mangru may have been influenced very much by his anxiety to get the deceaseds wife, but whatever Bagul did was done in, cold blood. Mangru is aged 25 according to the Sessions Judge, and Bagul is aged 27 years. It cannot be said that he was coerced into giving his help because he was an older man than Mangru. I do not find any extenuating circumstance in his case either.

13. I would therefore accept the reference, dismiss the appeal and confirm the sentence of death passed against both the accused.

Rowland J.

I agree.