Fazal Ali, J. - (1.) The appellant has been convicted under Sec. 303 of the Indian Penal Code for causing the murders of Kuhrami and Suresh Chandra, both of whom were convict warders along with the appellant in Bilaspur jail. It appears that between the night of 23rd and 24th June, 1974 the accused was sleeping with the two deceased persons and near about dawn he is alleged to have murdered both of them by assaulting them with handle of a handpump. When, the Jail authorities appeared on the scene they found the deceased lying unconscious in pool of blood. The accused had in the meantime climbed the tower and proclaimed from there that he had committed the murders and that he was not coming down. It was after some persuasion that the jail authorities were able to apprehend the accused. Thereafter, F.I.R. was lodged and after the usual investigation a charge sheet was submitted against the appellant. The appellant is also stated to have made extra-judicial confession before the Assistant Jailor, P.W. 1 Mr. Sexena, which was followed up by judicial confession before a Magistrate.
(2.) The two courts below have carefully analysed the evidence against the appellant and have found that although the case of the appellant rests wholly on circumstantial evidence, the evidence is absolutely conclusive and excludes every other hypothesis except the guilt of the accused. The High Court has catelogued the circumstances against the appellant at page 114 of the paperbook, which are as follows: (a) When Arjun (P.W.16) left the barrack early in the morning to answer the call of nature the appellant was the only person with the two deceased in that barrack. When Arjun (P.W. 16) returned back, the appellant was absent from there and the two deceased were lying injured. (b) The conduct of the appellant inasmuch as that he had climbed on the tile roof of the Octagon Office and in spite of persuasions refused to come down till about 8.30 a.m. (c) The statement, made by the appellant that since he had committed the murder hence he would not come down. (d) The clothes of the appellant which were seized from his body were found to be stained with human blood. (e) The discovery of the handle of a pump on an information given by the appellant which was found to be stained with blood. However, the origin could not be determined by the Serologist, as the stains had disintegrated. (f) Confession made by the appellant before a Judicial Magistrate. (g) Motive.
(3.) Mr. Krishan Pal Singh appearing for the appellant submitted in the first instance that judicial confession is inadmissible as the Magistrate who recorded the same, has not been examined to prove the confession, or the voluntary nature of the same. It appears that the Magistrate was not examined before the trial Court but both the courts have relied on the confession and have held that it was voluntary. Even if we exclude the judicial confession from consideration, there is sufficient circumstantial evidence to connect the appellant with the crime. The circumstantial evidence, namely, the fact that the accused was last seen with the deceased, before he climbed up the tower of the jail and proclaimed that he committed the murder, that after being apprehended he made an extra-judicial confession before Mr. Saxena, Asstt. Jailor, that at this instance the murder weapon the handle, was recovered and the fact that his blood-stained clothes were recovered from his person, lead unmistakably to the only irresistible conclusion that the appellant himself had committed the murder of the two deceased.;