1981 (2) TMI 240

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....big stone on the head and killed him. the occurrence was said to have been witnessed by the ten year old son of the deceased, who immediately went to the house of his father's cousin and told him about the occurrence. Next day there was a Panchayat in the village and on being questioned by the elders, the accused admitted that he had killed the deceased by throwing a stone on his head. Thereafter a report was made to the police and investigation started. The accused who was arrested on 15th was produced before the learned 1st Class Magistrate Malkangiri Sub Division. Koraput District for recording a confessional statement. The accused was given time for reflection and his confessional statement was recorded by the learned Magistrate on ....

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.... 3. Mr. R.K. Jain, learned counsel for the appellant urged that the High Court was wrong in reversing the judgment of the learned Sessions Judge. He submitted that the evidence of P.W. 1 should not have been accepted. He urged that the extra judicial confession made to the village elders should not have been accepted as it was the result of inducement. He submitted that though PWs. 2 to 5 were not persons in authority in the sense that they had no official position, as village eiders they certainly were persons in authority in the eyes of the accused who was an Adivasi. With regard to the confessional statement, made to the Magistrate his submission was that it should have been excluded from the evidence as the Magistrate was not examined ....

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....earned Magistrate should have been examined as a witness. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorises the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. Shri Jain submitted that if the Magistrate had been examined as a witness, the accused might have been in a position to show, by cross examination that the confession recorded by the Magistrate was not voluntary. The Magistrate has appended a certificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magis....