GOVINDA SUBBARAMAYYA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from the judgment of the Sessions Judge of Meiiore, dated July 13, 1936, in Sessions Case No. 11 of 1936 in which the two appellants were charged with murder but were convicted as follows: 1 appellant under Section 326, Indian Penal Code and the second appellant under Section 201, Indian Penal Code. The 1 appellant was sentenced to rigorous imprisonment of 10 years and the 2nd appellant to rigorous imprisonment for 3 years. The charges relate to the killing of one Subbi described by the learned Judge as "a buxom wench of 22 years", who though married and living with her husband, was said to have been kept by the 1 appellant Subbaram-ayya for some years prior to the occurrence. The learned Sessions Judge observes that-the 2nd appellant also was one of those to whom the deceased was distributing her favour but there does not seem to be sufficient evidence to support this view it is, however, established that the 2nd appellant and the 1 appellant are friends and used to move together. The dead body of Subbi was found in a well in the compound of the Board Elementary School, Kavali, sometime in the morning of February 15, 1936. The peon of the School saw a buudie of cloths near the well and he reported the matter to the Headmaster, P.W. No. 15, and as he suspected that there was something like a deadbody in the well a report was sent by the Headmaster to the Village Munsif, and the Village Munsif who had been given information to the effect that the deceased was missing by the deceased's father, went to, the School compound and got the dead body taken out of the well. The Village Munsif does not appear at least to have sent for or informed the Police though the Police Station is in the same town, not only till alter the dead body was taken out but even after he examined one of the witnesses who turns out to be the principal witness in the case, P.W. No. 7, who said that he had seen appellants Nos. 1 and 2 and the deceased near the well the previous night at about 9 P.M. The 1 appellant was arrested that very night in his house at Kavali. The 2nd appellant is said to have left Kavali, the next morning by train and he was ultimately arrested on the 18 at Sitaramapuram where he was staying with a relation of his. He was produced before the Stationary Sub-Magistrate of Kavali on the 19th. It is said that because later on the 2nd appellant expressed a desire to the Police to make a confessional statement, the Sub-Magistrate of Kavali who was not empowered to record confessions forwarded him on March 1, 1936, to the Stationary Sub-Magistrate of Kowur who was so empowered. The Sub-Magistrate, P.W. No. 8, kept the 2na appellant in a separate ceil in the sub-jail and after giving him two days time for reflection recorded a confession from him on March 3. 1936.

(2.) The case for the prosecution is that the two appellants and the deceased went together to the School compound in question some time in the evening of February II, between 8 and 9 P.M. and were seen talking there. The evidence relating to the previous movements of the deceased and of the appellants is not of very great importance except perhaps that portion of it which relates to the conversation that took place between the deceased and one Polugadu, P.W. No. 9 a cousin of hers, which was heard or seen by the 1 appellant. It is necessary to refer to this because the learned Sessions Judge appears to have thought that this conversation, trivial as it was, was the real cause of the tragedy as it led the 1 appellant to suspect that Polugadu was one of the newly found lovers of the deceased, and that it was because jealousy was so aroused that he dogged the steps of the deceased and finally induced her to go with him and the other appellant to the School compound. The evidence of P.W. No 7 is to the effect that he saw the two appellants and the deceased near the well talking at about 9 P.M. What happened thereafter he does not know. As to what happened in the school compound afterwards there is only the confession of the 2nd appellant; and it is on this that the prosecution rests mainly. It is conceded by the Public Prosecutor that if that confession goes, it must follow that the prosecution has failed to establish the guilt of either of the appellants. Before dealing with this confession it may be desirable to mention that the case for the prosecution as shown in the confession is that the deceased was beaten with a stick by the 1 appellant, the stick itself being that of the 2nd appellant. The injuries caused were not very serious so far as appearance go. The medical evidence does not show that there was any serious internal injury, and the principal external injuries were, a small incised wound on the centre of the head, a contusion below the right breast, and an irregular contusion on the left side of the abdomen besides a contused swelling on the left side of the neck. According to the Sub-Assistant Surgeon all these injuries besides the minor injuries noted by Lira might have been caused by a blunt instrument. The cause of death is no doubt given by him as shock due to the injuries, but the nature of the injuries, does not seem to support fully this conclusion. Unfortunately, the Sub-Assistant Surgeon was not cross-examined as to the cause of death, and in this state of the evidence, however, unsatisfactory the position may be, it is difficult to say that the medical opinion as to the cause of death is wrong though if the point was very material and had to be decided I should say that the cause of death has not been satisfactorily established. It is, however, unnecessary to go into the question of the cause of death because neither of the appellants has been found guilty either of murder or of culpable homicide. The offence of which the 1 appellant has been convicted is one of causing grievous hurt with a dangerous weapon and the offence of which the 2nd appellant has been convicted is one punishable under Section 201, Indian Penal Code. It may, however, be mentioned that it is very difficult to understand the reasoning of the learned Sessions Judge which led him to think that the stick said to have been employed in inflicting the injuries on the deceased was a weapon of the kind mentioned in Section 326, Indian Penal Code, that is to say, an instrument for shooting, stabbing, or cutting or an instrument which, used as a weapon of offence, is likely to cause death. There is nothing in the evidence so far as I can see to show what the size of the stick was or its weight or its length; the evidence refers to it merely as a stick. It cannot certainly be said that every stick is an instrument of the kind described in Section 326, Indian Penal Code. Finally, the learned Sessions Judge does not clearly explain why he was of opinion that grievous hurt had been caused in this case. The nature of the injuries themselves does not show that they constitute grievous hurt. His view appears to have been that the offence committed by the 1 accused would fall under Section 326, Indian Penal Code, because the accused would have known full well that beating a person on the tender parts of the body forcibly with a stick would cause grievous hurt. In other words, he seems to have been of opinion that beating a person with the knowledge that such beating would cause grievous hurt would amount to the offence of causing grievous hurt. This is not correct because unless grievous hurt is actually caused, the offence of causing grievous hurt is not established. Mere knowledge that grievous hurt is likely to be caused is not enough if grievous hurt is not actually caused. There is no finding by the learned Sessions Judge in this case that grievous hurt had been actually caused to the deceased.

(3.) I turn now to the all important question of the admissibility of, and the weight to be given to, the confession made by the 2nd appellant, namely Ex. B series. In the first place that confession was retracted at the very first opportunity, that is to say, during the preliminary enquiry before the Committing Magistrate by the 2nd appellant. His case was that he made that confession under the hope held out to him by the Police that he would be taken on as an approver; in fact, he mentioned the particular head constable who held out such a hope. It is not as if we have only a vague statement that the confession was induced by the Police. The specific allegation made by the 2nd appellant is to some extent supported by the fact that only three days later, that is to say, on March 6, the Sub-Inspector of Police, i.e., the Officer investigating the case, told, the Magistrate who recorded the confession that the question of taking the 2nd appellant as an approver was under correspondence. It would, therefore, appear as if there was some idea in the mind of the Police Officer investigating the case of taking the 2nd appellant as an approver. Whether the idea arose for the first time only after the confession was recorded or even before is difficult to say. It is a remarkable coincidence that the Magistrate who recorded the confession, while he with meticulous care put a number of other questions to the 2nd appellant before recording his confession in the very words contained in the rule (Rule 85 of the Criminal Rules of Practice) did not give him any warning as required by that rule that it was not intended to take the 2nd appellant as an approver. Indeed, this is one of the imperative directions contained in Rule 85 of the Criminal Rules of Practice, the first part of which runs as follows: No Magistrate shall record any statement or confession made by an accused person under Section 164 of the Criminal P. C. (1) until the Magistrate has first recorded in writing his reasons for believing that the accused is prepared to make the statement voluntarily and (2) until he has explained to the accused that he is under no obligation to answer any question at all and he has warned the accused that it is not intended to make him an approver and that anything he says may be used against him.