STATE OF ORISSA Vs. SAM DIMBA HO

JUDGEMENT

(1.) THIS is an appeal by the State of Orissa against the judgment of the Sessions Judge of Mayurbharij, Baripada acquitting the respondent of an offence under Section 302 Indian Penal Code.

(2.) THE respondent is an aboriginal Ho boy aged about 16 years living in village Simba Sahi, P.S. Raruan in Karanjia sub -division of Mayurbhanj district. It appears that two of his brother died of illness 4 or 5 years ago. His father also was said to be suffering from continued illness for sometime, near about the date of occurrence namely 27 -8 -1962. The prosecution case was that the respondent suspected the deceased Let Bewa to be a witch and that he killed her on 27 -8 -1962, during night by first shooting her with an arrow and then by smashing her head with a piece of stone.

(3.) SO far as the judicial confession is concern -ed the learned Sessions Judge rightly pointed out that it was not recorded in the manner required by law and that it should not be given any importance. The learned Magistrate (P. W. 10) who recorded the confession has not noted in the record that he informed the accused that he was a magistrate, that he was not bound to make a confession, and that if the confession was made it would be used as evidence against him even though he might retract later on. But he supplied these omissions by stating in Court that he did give him the necessary caution and also disclosed that he was a Magistrate. It is true that subsequent oral evidence is admissible to show that the requirements of Section 164 Criminal Procedure Code were satisfied though the official record may not indicate that those requirements were fulfilled.