R.S. Bindra, J.C.
1. The two appellants, Sudhir Chandra Das and Satya Ranjan Das, were charged, Under Section 302 read with Section 34 of the Indian Penal Code before Shri S. M. Ali, Additional Sessions Judge, Tripura, for having murdered Gobindalal Das in the ,early part; oft the night of 25th of April, 1968, in the area ,of village Pekuchhera, They were both found, guilty and each sentenced tp life imprisonment. They challenge the correctness of their conviction and the sentence.
2. The murder of Gobindalal Das came to light in somewhat quixotic manner. Some women of Halam tribe of Pekuchhera, including P.W. 4 joytanting and P.W. 5 Naikubjang, happened to go to the market at Panisagar on the 25th of April, 1968, for selling -'their load of fuel wood. They returned from the market after the darkness had descended. On their way back, they heard a person lying deep down on the slope of the road moaning and articulating the words 'mother mother' The women got frightened. They believed that either it was a case of an attempted manslaughter or some Carnivorous animal had mauled the man. On reaching the village, this set of women reported the occurrence to Raitenthai P.W. 1, the Sardar of the para of Halams and a member of the Gao Panchayat. Raitenthai collected a few villagers including Sudar-shan, a Bengalee, and then all made for the place of occurrence. The injured man had a large number of cut wounds in the regions of throat and head and he was helplessly tossing on the ground because of the pain. He was almost hovering between life and death. Sudarshan aforementioned identified, the injured as an uncle of the accused Sudhir. On getting that information, Raitenthai, accompanied by Pairenbul, went to the house of Sudhir and reported the occurrence to him. Sudhir and the accused Satya, who was then in the house of Sudhir, accompanied the two visitors to the house to the place where Gobindalal lay injured. The two accused, on reaching the place, confirmed that it was Gobindalal Das. The accused Satya then left the place on the pretext of bringing a dao for cutting branches of the trees in the area to improvise a stretcher for carrying the injured to the house. He never returned either to the place of occurrence or to the house of Sudhir. Raitenthai sent for the Gao Pradhan Debendra Chandra Debnath P.W. 9 through Joyram and Jai-tambul. About an hour after the arrival of Debendra Chandra at the spot, the injured expired. He, therefore, sent Bulbul alias Saradindu Chakraborty P.W. 15 and another person to the police station Dharmanagar for reporting the occurrence, The report was lodged with Manindra Sen Gupta P.W. 22, the Officer-in-charge of the police station, at 2 A. M. on 26th of April. After making an entry in the general diary, Shri Gupta left for the scene of occurrence where he reached at about 4 A, M. He recorded the statement, Ext. P-10(b), of the accused Sudhir respecting the identity of the deceased and other matters. He considered that statement to be the first information report and so started the investigations. The document Ext. P-10(b) was sent by him at 9 A. M. to the police station for registration of the case. He prepared the inquest report, collected some bloodstained earth from the spot, arranged a few snaps of the deceased, and then sent the cadaver to Panisagar for autopsy. He searched frantically for the accused Satya but failed. He then arranged a police dog from Agartala to help him in tracking the culprit. He contacted the Officer~in-Charge of the police station Fatikroy for help in the matter of arresting the accused Satya. On 13-5-68, he sent a radiogram, to the Officer-in-charge of the police station Sabroom that the accused Satya was reported to be. somewhere within his jurisdiction and so he should take steps to arrest him. Satya was actually arrested on the morning of 14-5-68 by Jogesh Chandra Das P.W. 14 from the village Magurchhera.
3. After Satya had been arrested by Jogesh Chandra, he (Satya) made a lengthy statement before the latter at the police Out-Post, Manu Bazar. Jogesh Chandra was then in charge of that Out-Post. This Jogesh Chandra forwarded Satya to the. Magistrate through the Officer-in-Charge of the police station Sabroom for recording his confessional statement, The confessional statement Ext. P-12 of Satya was recorded by Shri Amal Kumar Roy, the Sub-divisional Magistrate at Kailasahar, on 18th of May, 1968. The Court Sub-Inspector, Sabroom, sent a. ladiogram to Shri Gupta, informing him that in the confessional statement made by Satya he had implicated the accused Sudhir. It is after the receipt of that information that Shri Gupta happened to arrest Sudhir.
4. The accused Sudhir is said to have disclosed to Shri Gupta on 3-6-1968 that he had kept one dao and an umbrella, used by him in committing the offence, in his house and so could produce the same. The accused Sudhir was then taken to his house and from within the southern hut of his house he produced the dao M. O. 1 and the umbrella M. O. 2. None of the two articles was found stained with blood.
5. On 5-8-1968, Shri Gupta seized certain documents relating to one Money Order for Rs. 30, sent by accused Satya in the name of the deceased Gobindalal when he (Satya) was employed as a labourer with Sudhangshu Kumar Datta P.W. 11 at Magurchhera, police station Sabroom. Thereafter, on 14-8-1968, Shri Gupta seized the original telegram, Ext. P-25, alleged to have been sent by the accused Sudhir on 27-4-1968 to Ketaki Ranjan Das (a brother of the accused Satya) of Fatikroy communicating that Gobindlal Das had expired and enquiring the whereabouts of the accused Satya.
6. The post mortem examination was carried out by Dr, S. C. Sircar P.W. 13 at 2-45 P. M. on 26-4-1968 at Panisagar. , He was found no less than eight cut wounds on the various parts of Gobindalal including the neck and the head. The muscles and the blood vessels of the face and neck were cut. The wounds, the witness testified, were homicidal in nature. He gave the expert opinion that the death was attributable to haemorrhage and shock borne of the grievous injuries, occasioned to the deceased.
7. It is necessary, at this stage, that the nature and the contents of the confessional statement Ext. P-12 should be set out here. That would help us to understand what led the Investigating Officer to prosecute the two accused. The accused Satya mentioned in that statement that some time after he had migrated frqm East Pakistan he made acquaintance with his co-accused Sudhir and began to put up in the house of the latter. During the course of his stay in that house, he developed illicit intimacy with Sailabala, the widowed mother of Sudhir. Sometime thereafter the deceased Gobindalal also trekked on from East Pakistan to the village of the accused Sudhir and met the latter. Saila-bala raised no objection to Gobindalal also, Staying in her house and so he too took up residence there. In course of time, Gobindalal began to earn money and he shared his earnings with Sailabala with a view to pay ,off the charges of the food which he happened to take from her. A suspicion entered the mind of Satya that Sailabala had fallen in the hands of Gobindalal. He, therefore, lodged protest with Sailabala but she refuted the charge and affirmed that she was in love with him and not with Gobindalal. However, that profession of Sailabala did not carry conviction with Satya. The canker of jealousy remained lodged within the mind and heart of Satya. He, therefore, kept watch over mutual connections between Sailabala and Gobindalal, and felt convinced that Sailabala was more warm towards Gobindalal as compared to himself. Satya affirmed further in his confessional statement that the accused Sudhir had illicit connections with one Juthika, that Gobindalal one day happened to make amorous overtures to that woman, that Juthika reported that development to Sudhir, that Sudhir felt completely upset and was very hot with Gobindalal, and that Sudhir then took him (Satya) into confidence about his intention to murder the latter in the jungle by beguiling him to that place on the pretext that he wanted to cultivate a plot of land there. It was also given out by Sudhir that he would carry a dao concealed in an umbrella to achieve that objective. Sudhir asked Satya to accompany him armed with a weapon when he (Sudhir) would move out with Gobindalal. Sudhir dispelled the suspicions given vent to by Satya by affirming that he would give currency to the rumour that Gobindalal had been killed by some one when he went out 'to commit acts of roguery'. About 20 to 25 days after the conspiracy had been finalised, Satya went on to state, at about 7/8 P. M. Sudhir left in company with Gobindalal, and he (Satya) followed them at a short distance in a clandestine manner armed with a cudgel. Sudhir gave a push to Gobindalal at a place about half a mile from his residence, Gobindalal fell 'on a low land', and then Sudhir took out the dao from within the umbrella and administered some blows therewith on the person of Gobindalal. The victim raised an outcry but Sudhir, unmindful of that gave more blows to him. Just then, Satya added, he heard some tribal people talking between themselves nearabout. He, therefore, secured the dao from Sudhir and struck a blow therewith on the neck of Gobindalal, perhaps to kill him outright so that his cries may not be heard by way farers and lead to arrest of the culprits. The cudgel carried by Satya was dropped at the place and then he and Sudhir fled from there. Sudhir replaced the dao inside his umbrella and brought the two articles with him. While on the run, Sudhir told Satya that he would go to his house for getting two bottles of liquor which he wanted to sell in the market to buy rice with the proceeds thereof. Sudhir advised Satya not to go to his house. Consequently Satya went elsewhere for a while. Sudhir took two bottles of liquor from his house and left for the market along with his younger brother. However, he could find no buyer for the liquor and so they all had to sleep during the night without any food. At about 10-45 P. M. on the same night, some tribal people shouted out to Sudhir, and when Sudhir met them he was told that his uncle lay injured in the jungle. Sudhir then asked Satya to accompany him to the place, and so they both went with those tribal people to the place where Gobindalal lay injured. On their arrival at the spot, Gobindalal asked for water which was arranged by Satya. The condition of Gobindalal being grave, Satya left for his house to bring a dao for preparing a 'machang' (an improvised stretcher). Instead of bringing a dao to the place for the purpose mentioned, Satya took the money and the clothes lying in the house and went to Kumarghat, boarding a truck from Pani-sagar. On the next day he proceeded in the same truck to Agartala and then left for Udaipur. From the latter place he went to Manu Bazar in Sabroom Sub-division. He spent 3 days at Manu Bazar when he happened to work as a carpenter. During that short stay at Manu Bazar he developed acquaintance with Prasanna Datta, the father of Sudhangshu Kumar Datta P.W. 11, of Magurchhera, and so managed to get employment with him as an agricultural labourer. He had Rs. 15 with him which he made over to Prasanna Datta and requested the latter that he should lend him another Rs. 15 and send a Money Order for Rs. 30 to Gobindalal, and that was done. He also wrote a letter to the latter. However, he did not get acknowledgment receipt of the Money Order sent or any reply to the letter posted. He had no knowledge if Gobindalal was still alive, Satya stated while concluding the confessional statement, and then added that he was arrested by the police and brought before the Magistrate.
8. It is on the basis of the data outlined above that the police charged the two accused Under Sections 302/34, IPC.
9. Both the accused entered the plea of not guilty. The defence set up was one of pure denial. Of course, no witness was examined bv the accused, nor any other evidence relied upon.
10. The prosecution examined no less than 22 witnesses. The conviction of both the accused was claimed on the basis of the confessional statement made by the accused Satya, the recovery of dao and umbrella at the instance of the accused Sudhir, and circumstantial evidence of the nature which I shall presently dwell upon.
11. The learned Additional Sessions Judge believed the prosecution story in its entirety and put faith in the various pieces of circumstantial evidence relied upon by it.
12. In the first instance I would like to take up the arguments addressed at the bar by Shri Sarkar, the learned Advocate representing the accused Sudhir. He submitted that the trial Court was wholly wrong in founding the conviction of Sudhir on the confessional statement Ext. P-12 made by .his co-accused Satya. He stated further that the telegram Ext. P-25 alleged to have been sent by Sudhir to Ketaki Ranjan, a brother of the accused Satya, is not proved to have been registered by him. Another point urged by him was that none of the prosecution witnesses had affirmed that Sailabala, the widowed mother of Sudhir, was a woman of loose character, or that there was rivalry between the deceased Govindalal and the. accused Satya in claiming that woman, or that the accused Sudhir had illicit intimacy with Juthika, or that Gobindalal had also an eye on that woman. Shri H. C. Nath, appearing for the State, frankly conceded that there was no evidence beyond what is mentioned in the confessional statement Ext. P-12 establishing loose morals of Sailabala and Juthika, or that Sailabala and Juthika had excited rivalries between Gobindalal and Satya and Gobindalal and Sudhir respectively, Shri H. C. Nath also could not controvert the assertion of Shri Sarkar that prosecution had failed to prove by any dependable evidence that the telegram Ext, P-25 had been registered by the accused Sudhir.
Section 88 of the Evidence Act provides that the Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent, but the Court shall not make any presumption as to the person by whom such message was delivered for transmission. The language of the Section is much too plain to demand any serious analysis to find out its exact: isoopie. It is true that the telegram Ext, PSi purports to have been sent by one Sudhir pas. However, no particulars of Sdhir t)as are mentioned in tha't telegram, nor is there any evidence that the signature reading 'Sudhir Das', on the document is that of the -accused Sudhir, Hence, the trial Court was clearly j wrong'in treating this telegram as cpnstitutng a piece of circumstantial: evidence jndicat-jing the culpability of Sudhir respecting the murder of Gobindalal.
13. Another piece of circumstantial evidence utilised against Sudhir by the, trial JCourt is that the' dao M. O; 1 and the umbrella M. O. 2 were recovered ; pursuant to the disclosure statement made by him to the Investigating Officer Shri Gupta. It is not the contention of the prosecution that the two articles were stained with human blood or that there was any other evidence excepting what is mentioned in the disclosure statement Ext. P-12 to establish that they had been used in murdering Gobindalal, Hence, assuming that they were recovered from within the house of the accused that recovery would not constitute any incriminating circumstance. Such articles, it was admitted at the trial, are found in the houses of all Bengalees putting up in Tripura.
14. The only other evidence which the trial Court availed of against the accused Sudhir was the recitals in the disclosure statement made by Satya. This was done in terms of Section 30 of the Evidence Act. That Section enacts that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The word 'may' in the Section makes it clear that the Court is not bound in law to use confession made by one accused against his co-accused and that the legislature has left the matter of utilization of confession for such purpose in the discretion of the Court. The expression 'take into consideration' used in the Section has been the subject of a large number of judicial pronouncements which are in complete accord in holding that it does not make the recitals in the confession as constituting evidence against the co-accused. It has also been emphasised that such confessional statement being not given on oath, nor in presence of a co-accused, its veracity cannot be tested by cross-examination and so it should be used against the co-accused with circumspection. It may be appropriately pointed out that the provisions of the Section constitute an exception to the rule that a confession is evidence only against the maker and not against others who may be tried along With him arid that as such the Section has; introduced a dangerous element in the administration of criminal justice in India inasmuch as though such a confession is-not evidence against a co-accused, speaking technically, it may be used against him at Ms trial. There is consensus of judicial authority on the point that the provision: enacted in Section 30 must; be used with greatest caution 'and with care to ensure that we do hot stretch it by a jot beyond the legislative intendment. The authorities go-to the length' of expressing apprehension, and I thinks rightly, that the Section has introduced for ;the first time in the Indian Evidence Act of 1872 an innovation of a very serious character which is liable to cause miscarriage of justice if not properly understood; and I applied Anyway, it provides relief to note that it is well settled that the confession made by ran accused can be used against his-co-accused only in support of other evidence and cannot be made the foundation of conviction against him. The exact scope of Section 30 vvas discussed by the Privy Council in the case of Bhuboni v. The King A.I.R. 1949 PC 257, I cannot do better than reproduce the relevant extract from the authority, It runs as under:—
Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party. Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in Section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the Section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction.
The Supreme Court cited with approval these observations of the Privy Council in the case of Kashmira Singh v. The State of Madhya Pradesh : 1952CriLJ839 .
15. It would be evident from the above interpretation of Section 30 of the Evidence Act that the confession made by Satya does not constitute a piece of evidence against his co-accused Sudhir, and that what is mentioned in that document could be availed of against Sudhir if there is other relevant evidence tending to prove his guilt. In other words, that confession can be used only in support of other evidence and cannot by itself form the foundation for convicting Sudhir. Since, as held above, there is no other evidence to establish the culpability of Sudhir in the murder of Gobindalal, the recitals against him in the document Ext, P-12 alone cannot form the basis of his conviction Under Section 302, Indian Penal Code.
16. Now I take up the appeal filed by the other convict Satya. The primary evidence against him is the confessional statement Ext. P-12. Two important incidents mentioned in that confessional statement, and which are clearly of incriminatory nature, gather corroboration from independent and reliable testimony. They are, (1) that some tribal people approached Sudhir on the night of 25th of April to inform him that his uncle lay injured and that the accused Satya accompanied Sudhir to that place and after having stayed there for sometime he (Satya) told the persons present that he was proceeding to the house to bring a dao which he required for making an improvised stretcher required for carrying the injured and then he did not return to that place, and (2) that after he had taken employment with Prasanna Datta of Magurchhera soon after the murder, he had sent a Money Order for Rs. 30/-in the name of Gobindalal, the deceased. The first of these incidents is proved by the testi-moiiy of Raitenthai P, W. 1 and Pailenbul P.W. 2. P.W. 6 Joyram also deposed that after Sudarshan had identified the injured as Gobindalal, P.W. 1 Raitenthai asked him (the witness) and Sudarshan to fetch the Gao Pradhan at the spot, and that on their way back from Panisagar he saw the accused Satya walking away briskly. None of these three witnesses is proved to have any motive for implicating Satya falsely in the case. Hence, their statements have to be accepted at face value, Their testimony establishes that Satya left the scene of occurrence on a false pretext that he would bring a dao from the house, that he never returned to the place, and that a short while after he was seen moving away briskly in the vicinage of Panisagar. All these facts are consistent with his guilty conscience. It has to be e& phasised that the deceased was a cousin brother of Satya, that they both jointly were putting up in the house of Sudhir, and that the condition of Gobindalal was near death when Sudhir and Satya were brought to the scene. If in view of that grave condition of his cousin brother the accused Satya could slip away from the place on a false pretext, it is legitimate to infer that the story given by him in the confessional statement stands re-inforced and corroborated.
17. The other incident detailed above is proved by the statement of P.W. 11 Sudhang-shu Datta of Magurchhera. He deposed that 13 days before his arrest by the police of Manu Bazar Out-Post the accused Satya was engaged by him as a labourer, that the accused deposited Rs. 15/- with him on the day of his engagement, that a week thereafter the accused got back that sum of Rs. 15/-and after securing another Rs. 15/- from him sent a Money Order for Rs. 30 to Gobindalal at Panisagar, and that the postal receipt which was in his (witness's) possession was subsequently secured by the police. Another fact mentioned by the witness was that after the accused had been engaged by him, he (the accused) told his father on enquiry that he had come to Magurchhera because he had to leave his house on account of quarrel with his mother and brothers. This witness is a person of status and since he is a ranknattt-sider he could conceivably have no background to involve his employee falsely in a case so serious as that of murder. Moreover, what he affirmed at the trial finds mention in the confessional statement itself. His statement also gathers corroboration from the testimony of Sub-Postmaster Gouranga Bardhan, P.W. 12 who deposed that the Money Order receipt Ex. P-3,' dated 7-5-1968, had been issued by a clerk subordinate to him. Gouranga Bardhan also proved the office copy Ext. P-3 (a), of that receipt and affirmed further that the Money Order could not be delivered because the addressee was reported dead and that he made a note to that effect in the office records. He also deposed that when search was made for refunding the money to the remitter, the latter was not found at the address given and consequently the Money Order form was sent to the Head Office 'as unclaimed'.
18. In his statement Under Section 342 at the trial, the accused Satya admitted that he used to live generally in the house of accused Sudhir at Panisagar, that at about 10-30 P.M. on 25-4-1968 he found his cousin Gobindalal Das lying injured on the foot-track of Halam para in Pekuchhera, that some Halam women had heard Gobindalal groaning near the road when they were returning from Panisagar market, that P.Ws. 1 and 2 then visited the house of Sudhir when the latter and he (Satya) accompanied them to the spot, that he (Satya) after seeing the condition of the injured left the place never to return, that he thereafter took his money and clothes from the house of Sudhir and firstly went to Kumarghat, then to Udaipur, and thereafter to Sabroom where he stayed for three days and worked as a carpenter, and that finally he engaged himself as a ploughman with Sudhangshu Datta P.W. 1.1 of Magurchhera. He also admitted that he was arrested by the police on suspicion and produced before the Magistrate at Sabroom on 10th of May, 1968, when he made confessional statement admitting the offence. Having made all these admissions, the accused then took a somersault and denied his complicity in the murder of Gobindalal in reply to other questions put to him. However, it was clearly admitted by him, it may be repeated, that he had been putting up in the house of Sudhir along with his cousin Gobindalal, the deceased, that he had seen Gobindalal lying injured at an out of way place, that he had left that place a short while after and never returned there, that he collected his money and clothes from the house of Sudhir on the same night and then after spending 3/4 days at different stations he finally got employed with Sudhangshu Datta P.W. 11 at Magurchhera. It was also admitted by him that after he was arrested from Magurchhera he was produced before the Magistrate where he made the confessional statement. These admissions at the trial coupled with non-retracted confession and the circumstantial evidence discussed above leave no scope for doubt that Satya had participated in the assault made on Gobindalal, and I hold accordingly.
19. A somewhat difficult question that has now to be answered is what offence is made out against the accused Satya on the basis of the evidence marshalled above against him. At the trial he pleaded not guilty to the charge of murder. The learned Government Advocate placed reliance on the document marked Ext. P-30 to support the contention that Satya had pleaded guilty to the charge. That document is a copy of the charge formulated by the committing Magistrate against the two accused Under Section 302 of the Code and the statements made by the latter after the charge had been read over and explained to them. It appears that the Magistrate proceeded to record their pleas immediately after formulating the charge, Sudhir denied having committed the offence whereas Satya said: 'I have committed the offence, I had given a dao blow on my brother Gobindalal Das. I did not give the dao blow voluntarily'. This plea when read as a whole does not amount to confession of the commission of offence with which Satya had been charged. According to his statement, he had given one blow to Gobindalal and that blow had also not been given in a voluntary manner. Heflce, I fail to see how that statement amounts to a confession of the offence despite the words, 'I have committed the offence' used by him. The apparent force and value of these words is wiped out by the concluding words of the statement that the single blow dealt by him was not administered voluntarily.
Moreover, sub-section (2) of Section 210 enjoins the Magistrate only to read and explain the charge to the accused and to supply him a copy thereof, if the accused so requires, That provision does not authorise the Magistrate to call upon the accused to plead to the charge. That is only the privilege of the trial Court. Therefore, any statement that the accused may have made when asked by the committing Magistrate to plead to the charge has to be ignored. It was held in the case of Nazir Ahmad v. King Emperor A.I.R. 1936 PC 253 (2), that where a power is given to do a certain thing in -a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. On the basis of this principle the Privy Council held in that case that where in the course of an investigation an accused person is taken to a Magistrate to have his confession recorded, but the Magistrate does not record the confession in the manner laid down by Section 164 of the Code, the confession cannot be admitted in evidence on the oral testimony of the Magistrate. The Supreme Court held in the case of State of Uttar Pradesh v. Singhara Singh : 4SCR485 , that when a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers and that no other officer can exercise that power, for it has not been given to him. The point that the Supreme Court had to deal with was when a second class Magistrate not specially empowered by the State Government to record a statement or confession Under Section 164, Criminal Procedure Code has purported to record a confession of the accused Under Section 164, whether his oral evidence to prove the confession will be admissible or not. The Supreme Court upheld the principle enunciated by the Privy Council in Nazir Ahmad's case A.I.R. 1936 PC 253 (2) and on the footing thereof observed that oral evidence was inadmissible to prove the confession made before the second class Magistrate who had not been specially empowered. I may emphasise that no attempt was made before the Supreme Court in that case or before the Privy Council in Nazir Ahmad's case A.I.R. 1936 PC 253 (2) to canvass the proposition that the confessional statement recorded by such Magistrate was admissible in evidence. The principle that weighed with the Privy Council and the Supreme Court in enunciating the rule reproduced is that if the direction given by the legislature can be violated with impunity then the statutory provision might as well not have been enacted. I would, therefore, hold that since the committing Magistrate has no jurisdiction to call upon the accused to plead to the charge formulated against him, if he oversteps his jurisdiction and calls upon the accused to plead to the charge then the plea recorded by him would be inadmissible in evidence.
20. It appears to be well settled on the highest authority that where all the accused except one arc acquitted, that one cannot be convicted for the offence read with Section 34, Indian Penal Code where the charge was that he, along with the other accused, had committed the offence in furtherance of the common intention of all. The reason of the rule is that in such a case the essential element of the offence being committed by a number of persons in pursuance of their common intention cannot be regarded as established. Of course, in such a situation there is no bar to the conviction of the remaining accused for the offence which he himself is proved to have committed. In support of these propositions reference may usefully be made to the eases of Baul v. State of U. P. : 1968CriLJ872 , and Krishna v. State of Maharashtra : 1SCR678 . It was held in the case of Baul that when two accused are convicted by the Sessions Court Under Section 302 read with Section 34 and one of the accused is acquitted by the High Court in appeal, the other accused cannot be convicted Under Section 302 simpliciter in the absence of proof of exact nature of injuries caused by each accused. It cannot be postulated in such circumstances, it was stated further, that the other accused alone caused all the injuries. The Supreme Court happened to examine the question at anvil in details in the case of Krishna. la that case the High Court had acquitted three out of the four accused charged for an offence Under Section 302, read with Section 34 on the principle of the benefit of doubt in view of the fact that their identity had not been established, but convicted the fourth Under Section 302 read with Section 34 holding that he had committed the offence along with one or other of the acquitted accused. The Supreme Court set aside the conviction, of the fourth accused describing it as 'clearly wrong'. It was observed that when accused were acquitted either on the ground that evidence was not acceptable or by giving benefit of doubt to them the effect in law would be that they did not take part in the offence. Hence, it was observed further, the effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder. If that was so, the Supreme Court concluded, the fourth accused could not be convicted Under Section 302 read with Section 34 for having committed the offence jointly with the acquitted persons. The view taken in the cases reported in : 1957CriLJ581 , Zabar Singh v. State of Uttar Pradesh, and : 1956CriLJ147 , Prabhu Babaji v. State of Bombay was also identical.
21. Let us now apply the principles outlined above to the facts of the case in hand. The charge on which the accused were tried was Under Section 302 read with Section 34, Indian Penal Code. It was specifically mentioned in the charge that the two accused, Sudhir and Satya, had committed the murder of Gobindalal pursuant to their common intention to murder him. At no stage of the enquiry or trial it was the case of the prosecution that murder had been committed exclusively by any one of the two accused or that any other person had joined with them in committing the felony. Nor was any evidence led to prove that it was Satya who had exclusively committed the murder. Therefore, after the acquittal of Sudhir it is not possible to hold Satya guilty of murder with the aid of Section 34, Indian Penal Code. He can, therefore, be convicted only for his individual act and not vicariously for what other or others may have done-respecting Gobindalal.
From the confessional statement, Ext. P-12 all that we can gather is that Satya had administered one blow with a dao to Gobindalal before he (Satya) and Sudhir fled from the place on hearing the talks being exchanged between members of the Halam tribe, proceeding on the adjoining pathway. Other relevant facts mentioned in the confessional statement are that that blow was given by Satya on snatching the dao from the hand of Sudhir in the region of the neck of Gobindalal and that occasion for it was provided by the facts that Gobindalal had raised the cry using the word 'mother' and Satya had heard the voice of tribal people in the vicinity. Obviously, Satya wanted to kill the man outright so that he could not raise any cry and involve his assailants in difficulty. The injuries in the region of the neck or Gobindalal were all grievous. Though it is not possible to hold that the solitary injury occasioned by Satya had caused the death of Gobindalal, yet it is too clear that that injury was grievous in nature. I would, therefore, acquit the appellant Satya of the charge Under Section 302 read with Section 34 Indian Penal Code and instead convict him Under Section 326, Indian Penal Code.
22. The only question that remains for determination is what is the appropriate sentence that should be 'imposed on Satya. The offence Under Section 326 is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, besides fine, I think 10 years' imprisonment would meet the ends of justice and I order accordingly.
23. As a result of the conclusions recorded above, I accept the appeal of both the accused and acquit them of the charge Under Section 302 read with Section 34 of the Indian Penal Code. However, I convict Satya Under Section 326, Indian Penal Code and sentence him to 10 years' Rigorous Imprisonment. The accused Sudhir should be set at liberty forthwith.