BHAKTA BHUSAN PRAMANIK Vs. EMPEROR

JUDGEMENT

(1.) The three appellants Bhakta Bhusan Pramanik, Durgapada Modak and Jaladhar Kundu have been convicted of offences punishable under Secs.302 and 392, I. P. C. The two former have been sentenced to death and their case has been referred to this Court by the learned Sessions Judge. The third has been sentenced to transportation for life. All the three persons have appealed and the appeal and the reference have been heard together. Briefly the facts of the case are as follows: There was an old woman named Saibalini who had been living alone for sometime. On the morning of the 16 August last, her nephew went to her house to see her but found the door in the compound wall locked. He scaled the wall, made his way into the house and there found the old woman lying dead on her bed. Information was given to the Police who started to inquire into the matter as being the case of an unnatural death. P. W. 2, Golak Behary Roy, is the landlord of the village. He received certain information which aroused his suspicions. Amongst other things, he was told by P. W. 6, Ranjan Pal, that the three accused persons had been seen together talking in a suspicious manner on the night of the murder, and suggested that they might be in a position to give some information with regard to the old woman's death. This gentleman said that while he and Ranjan Pal were discussing the matter, the accused Jaladhar used to come and sit unnecessarily there and on two occasions actually followed him. On the second day he asked him if he had anything to say.

(2.) The boy then burst into tears and confessed that the old woman had been murdered by himself and the other two accused. Subsequently, similar confessions were made by the other two accused and Durgapada handed over to Golak Roy four gold earrings which, he said, were part of the stolen property. After consulting a friend, he sent information with the said earrings to the Police and the accused persons were arrested. Jaladhar and Bhakta then made confessions before a Magistrate. The earrings were identified by the daughter of the deceased as her own and she said that they had been left in the custody of the deceased. On these facts, the three appellants were placed on their trial before the learned Sessions Judge of Burdwan and a jury. All three of them were unanimously found guilty. It is clear from what has been said above that the most important evidence is that of the confessions made by the three appellants and it is therefore inevitable that the problem of the respective functions of the Judge and the jury in this matter should have been agitated before us. On behalf of the appellants, Mr. Mookerjea has contended, firstly, that the Judge left the question of the admissibility of these confessions to the jury instead of deciding it himself; and, secondly, that the directions which he actually gave to the jury were not correct in law. Now, it could hardly be doubted that when the prosecution seek to put a confession into evidence, it is the duty of the Judge to decide whether that evidence is admissible or not. Hence, it is sometimes said succinctly that it is the duty of the Judge to decide whether a confession is voluntary and of the jury to decide whether it is true. But when one comes to examine the matter, I think it will become apparent that the first proposition is too broadly stated, while the second is too narrow.

(3.) When the Judge has to determine whether a confession is admissible, he has to see if it is hit by the provisions of Section 24, Evidence Act. This succinct use of the word "voluntary" is therefore rather un-fortunate. A confession which is not hit by the precise terms of Section 24 may at the same time not be voluntary in the ordinary sense of the term. The duty of the Judge, however, is to decide whether he will allow the confession to go in, that is to say, he has to satisfy himself that it is not within the prohibition of that section. When once it has been let into evidence and put before the jury, it is for them to say whether it is true or not. Now, I am bound to say that I am unable to see how, when they have to de cide that matter they can ignore the question whether it was voluntary or not. It would be almost impossible to decide the question without considering that matter. It is clear that if the Jury are to perform their duty satisfactorily, they must consider all the circumstances under which the confession was made and it may well be that in many cases there may be circumstances which would support an inference that the confession was not voluntary.