EMPEROR Vs. MAYADHAR POTHAL

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Cuttack under Section 374, Criminal P.C. for confirmation of the sentence of death passed by him on Mayadhar Pothal who has been convicted under Section 302, Indian Penal Code, on a charge of the murder of an old woman named Fula Bewa who used to live alone in her house in Krishnaraipur. The murder is said to have been committed on the night of 21 October 1938, in the angan of the deceased. There is a chula or a raised hearth with a hole in the top. The body was found on the morning of 22nd October 1938, with the head thrust into the mouth of the chula. Death had been caused by a number of incised wounds on the back of the neck and the back. The lobes of the ears had been cut by some cutting instrument and the ear-rings removed from them. Robbery is naturally the motive ascribed. There is evidence of several neighbours that the deceased used to wear two pairs of gold ear-rings.

(2.) There is no eyewitness and the case against the accused rests entirely on circumstantial evidence consisting in the recovery from his house of certain suspicious articles on a statement made by him to the Investigating Sub- Inspector; the recovery of a weapon proved to be blood-stained, from the house of his neighbour Danai or Danadar Khatua as a result of a statement made by this accused and the finding of some marks of injury on the person of the accused which suggest that he may have-taken part in some sort of a struggle at about the time of the crime. As to the statement made by the accused and leading to the recovery of the articles we have it only in a fragmentary form. P.W. 12, Mayadhar Jena, one of the search witnesses, says: "The accused told the Sub-Inspector of Police, that he had got the ear-rings of the deceased." Sub-Inspector Narayan Prasad Prija says that accused told the witness-that he had got the ear-rings of the deceased hidden in his thatch. The note as to accused's statement made in the search list-Ex. 5 is: Mayadhar Pothal having produced the carings from the bundles of straw of the lowest layer of the thatch of his house over the eaves four rafters from the corner beam towards his bari (garden) side to the south saving that Janardan Khatua of Krishnaraipur after killing Fula Bewa had handed-them over to be kept, they were seized.

(3.) If is was intended to admit under Section 27, Evidence Act, the statement made by the accused regarding these ear-rings, the correct course was to use "so much of the information as relates distinctly to the far thereby discovered" and no less. The question arises whether a proper reading Section 162, Criminal P.C. prohibits the use of a statement made by an accused person to a police officer in the course of an investigation when it is made under the special circumstances provided for in Section 27, Evidence Act. It has recently been laid down by their Lordships of the Judicial Committee of the Privy Council in Pakala Narayan Swami V/s. Emperor that Section 162 is not confined-to statements made to the police by witnesses but applies equally to statements made by accused persons; but their Lord, ships expressly abstained from deciding the question whether a statement followed by a discovery of fact such as is contemplated by Section 27 is rendered inadmissible or still remains admissible on the ground that Section 27, Evidence Act, is a special law within the meaning of Section 1(2), Criminal P.C. and is not specifically repealed by Section 162. Undoubtedly it has long been an unquestioned practice in all the High Courts that statements made to a police officer in the circumstances provided for by Section 27, Evidence Act, have been treated as admissible in evidence notwithstanding that they may have been made to an investigating officer during the progress of an investigation. And in Emperor V/s. Syama Mahapatro A.I.R (1932) Mad. 391. Reilly, J. has adopted the line of reasoning by which in Chinna Thimmappa V/s. Talu Kunto Thimmappa A.I.R (1928). Mad. 1028. Section 27, Evidence Act, and Section 162, Criminal P.C. were both given effect to, Section 162 having effect in every case except those to which Section 27 applies by way of exception or proviso.