LALA Vs. STATE

JUDGEMENT

(1.) This is an appeal by Lala, alias Sukh Lal, aged 27, of Theola, a hamlet of village Pantehra, who was challaned and committed to sessions for an offence under Section 302, I. P. C., for the murder of one Prabh Dayal, aged 25, between 9 and 10 p.m. on 9.8.1951, but who has been convicted by the learned Sessions Judge of Bilaspur under the second Para. of Section 304, I. P. C., because in his opinion the appellant caused the death of Prabh Dayal whilst deprived of the power of self control by grave and sudden provocation within Exception 1 to Section 300, I. P. C., and sentenced to ten years' rigorous imprisonment and Rs. 200/- fine, or further six months' rigorous imprisonment in default of payment of fine.

(2.) Prabh Dayal has been described by his widow Mt. Ajudhya (P. W. 2) as a resident of Pantehra but by Didu (P. W. 1), lambardar of that village, as a resident of Theola. This discrepancy is immaterial since Theola is a hamlet of Pantehra and their abadis adjoin each other. Mt. Ajudhya and the deceased's mother Mt. Gandhu (P. W. 3) have stated that in the early part of the night in question Prabh Dayal left his house to secure the help of one Lohku and others for the ploughing of his fields, that shortly after that they heard an outcry that he had been murdered by Lala, and that they left immediately and found Prabh Dayal's dead body lying on the thoroughfare with blood oozing out of the wound on the right side of the neck. According to the postmortem report, there was only one incised wound 3" x -" x 2 " deep parallel with the lower margin of the right jaw just in front of the ear, and death was due to shock and haemorrhage as a result of that injury. According to the prosecution, this injury was caused with a hatchet which was recovered blood-stained from the house of the appellant when Didu lambardar and others reached there within only about half an hour of the occurrence and arrested him. The way from the deceased's house to the house of Lohku has been shown in the sketch Ex. P. R. The spot on this thoroughfare where the dead body was found is in close proximity to the abadi of Theola. The nearest house was only 3 ft. and 4 inches away. The houses of Chaudhari (P. W. 15) and Mangtu (P. W. 16), produced as eye-witnesses, were only 33 paces and 16 yards respectively from that spot. The house of another important witness Gonju (P.W. 18), who over-heard the altercation between the deceased and the appellant immediately before the murder and the sound of the fall of Prabh Dayal on receiving the hatchet blow, was at a distance of only 12 ft. from the said spot. A number of other residents of the neighbourhood also reached the place of occurrence soon after and found the dead body in the aforesaid condition as described by the deceased's widow and mother. Prom the statements of these witnesses and the medical evidence it has been established that within a short time of leaving his nouse Prabh Dayal was done to death with a sharp cutting weapon between 9 and 10 p.m. on 9.8.1951, on a thoroughfare close to the abadi of Theola. Indeed the learned counsel for the appellant did not seriously challenge the correctness of this conclusion. What he challenged was the finding that it was the appellant who had committed the murder.

(3.) The evidence against the appellant consists, firstly, of the testimony of the said witnesses Chaudhari (P. W. 15), Mangtu (P. W. 16) and Gonju (P. W. 18), who profess to have over-heard the altercation or seen the murder committed; secondly, of extra judicial confessions which the appellant is said to have made at the time of his arrest at his house soon after the occurrence, and again when brought from there to the spot where the dead body was lying; thirdly, of the recovery of a blood-stained hatchet from his house at the time of his arrest, and of a blood-stained shirt from his person at police-station Ajmerpur on 11.8.1951, by S. I. Sukh Ram (P. W. 20); fourthly, of a confession which he is said to have made on 18.8.1951 before Sri Sohan Singh (P. W. 19) Magistrate first class Ghumarwin; and, fifthly, of actual or suspected illicit connection between the wife of the appellant and the deceased as a motive for the offence. Of these the confession recorded under Section 164, Criminal Procedure Code, and the extra judicial confessions have been discarded by the learned Sessions Judge, and, although the learned Government Advocate sought again to rely upon them, I am of the opinion that the judicial and extra judicial confessions have been rightly discarded. It appears that the appellant was twice produced for a remand before the same Magistrate who recorded the confession once on 12.8.1951 and again on 17.8.1951. The Magistrate says that he gathered from the police that Lala was willing since 12.8.1951 to make a confession. There is no explanation forthcoming why then he was produced before the Magistrate for confession six days later. The confession was retracted before the committing Magistrate, and the appellant stated that he had been tortured into making it. Admittedly, the appellant was produced for his confession from police custody and sent back again to police custody after his confession. The Magistrate says that in spite of the fact that he was given to understand that Lala was willing to make a confession ever since 12.8.1951, and that he was produced for the confession only on 18.8.1951, after he had been produced twice before for a remand, no suspicion was aroused in his mind and he did not think it necessary to take any steps to satisfy himself that the confession was being made voluntarily. He further admitted that although it struck him that some time should be given to Lala to compose himself and so to get rid of the fear of the police, he gave him no time whatsoever before proceeding to record his confession. He professes to have asked the accused as to why he was making a confession, but he admits that he did not record either the question or the answer given by the accused. Strangely enough, the Magistrate also stated that he committed to writing every question put by him to the accused. In fact, the Magistrate made a mess of the whole thing and does not appear to have been aware of the elementary precautions which a Magistrate should take, and the questions he must put, at the time of recording a confession in order to satisfy himself that the confession was being made voluntarily. The Magistrate in question is a Tehsildar invested with first class magisterial powers. It is essential that he and other Magistrates empowered like him to perform the important task of recording confessions possess the requisite knowledge of how confessions ought to be recorded. The relevant provisions of the High Court Rules and Orders and of the Criminal Procedure Code should be brought to their notice, and even practical training imparted to them in the art of recording confessions properly.