S. Rangarajan, J.
1. The two appellants, Baldeo Goala and Harduar Goala, have been convicted by the learned Sessions Judge, Dibinigarh and LakMmpur district, Dibrugarh Under Section 324 read with Section 34 as well as Under Section 302 read with Section 34 of the I. P. C. ; both of them have been sentenced to rigorous imprisonment for life, plus a fine for Rs. 500/-, in default imprisonment for 3 months ; it does not appear from the judgment of the learned Sessions Judge whether a separate sentence Under Section 324/34 was or was not awarded in view of the conviction Under Section 302/34, I. P. C. It is not possible, however, to understand the judgment as imposing the sentence of imprisonment for life in respect of an offence Under Section 324 I. P. C. as well.
2. The prosecution case is briefly as follows :-- On 20-3-1975 the deceased Sarowar Goala along with Sukur Goala (P. W. 8) and Punn Goala (P. W. 9) went in search of the missing calves belonging to the former. When they were returning home via Baluchapari, they saw Akalu, Patiram and Sahadeo, who are brothers and Mahadeo (all of them acquitted by the trial Court) as well as the two appellants--Baldeo and Harduar, (Mahdeo, Baldeo and Harduar are brothers). The connection between these two sets of brothers is not apparent ; they lived in different places. Being afraid of them, P. Ws. 8 and 9 and the deceased went to a Baluchaari, to which place they were followed (in a boat) by all the above six persons. Appellant Baldeo asked the deceased, P. Ws. 8 and 9 as to why they fled, to which the deceased put a counter question as to why they were chased by them. The appellant Baldeo thereupon said 'maro' (kill). Appellant Baldeo, according to the ejahar given by P. W. 8 assaulted the deceased with spear and appellant Harduar dealt a spear blow on P. W. 8 : others assaulted them with lathis. According to Sew Kumar (P. W. 7), Pws. 8 and 9 went to his place (charkhoria chapori) and requested shelter for the night saying that they would not be able to return home. P. W. 7 ascertained from P. W. 9 that the six accused (Baldeo and his two brothers along with Akalu and his two brothers) quarrelled with deceased, P. W. 8 and P. W. 9 and assaulted them. P. W. 7 was also told that Sarowar was injured at the ghat. He went and found Sarowar lying there with injuries ; he was alive then. P. W. 7 took Sarwar, who was speechless, to his house and noticed he had injuries on his stomach. Sarowar died later that night in the house of P. W. 7.
3. The ejahar in this case was given by P. W. 8 at the Dibrugarh Police Station at 3.30 P. M. on the following day i. e. 21-3-1975. Appellant Harduar was arrested on 31-3-1975 ; the exact time and place of his arrest is not clear since even the I. O. who arrested him has not been examined. Appellant Harduar seems to have been sent to the Court of S. D. M. (j), Dhemaji at 10.30 A. M, on 1-4-1975. After giving necessary caution and giving him only four hours time for reflection, during which period the appellant Harduar was kept in the custody of the peon of the Court, the learned Magistrate, L. Bardaloi (P. W. 1) recorded his confession. It appears from the answer to a question put to Harduar by P. W. 1 that he was at first in police custody, at Jorhat P. S. where he was arrested at 1 P. M, on 31-3-1975 and kept in the lock-up. It was from the lock-up of that P. S. that he was produced before P. W. 1 on the following day (Page 63 of the paper book) ; but there is some difficulty caused by the further record which P. W. 1 has made as part of the so-called confessional statement of appellant Harduar that he got his injuries treated at Jonai by the doctor at Jonai and since he was informed by another accused Sahadeo Goala (acquitted) that his name had also been reported to the police, he went to Jonai P. S. on 31-3-1975 and reported about the occurrence. It was then, he said that he was apprehended by Jonai Police and sent to Court. It is a pily that the O. C. was not examined ; we are not even told why he was not examined. We only find that S. Sonowal (P. W. 10), the Assistant S. I. attached to (judge's Court, was examined as P. W. 10 for proving that he was acquainted with the handwriting of Shri Dimbeswar Bora, S. I. who, as it appears from the F. I. R. in this case, had been ordered to investigate the case by Shri Banamali Sen, O. C. Dibrugarh P. S. In these circumstances, it is not surprising that no question could be addresesd to or even information elicited from anyone concerning the Police Station, Jonai as to whether any entry had been made at the General Diary of the said P. S. about appellant Harduar going to the said P. S. The appellant, according to the so-called confessional statement recorded by P. W. 7 (1?) had appeared before the said P. S. on 31-3-1975. We thus do not even have the benefit of an assertion by the concerned Police Officer that the appellant Harduar did not have any injury on him when he was arrested.
4. Some submissions have been made to us concerning sufficient time not having been given for reflection and the said statement to P. W. 1 not being voluntary or shown to have been made when he was free from the Police influence ; it seems to us needless to pursue the details of this argument in the view that the so-called confession, read as a whole, is self-exculpatory (since it asserts the exercise of the right of private defence) ; no part of it which is inculpatory could, therefore, be relied upon by the prosecution against appellant Harduar.
5. The legal position is now well settled. The Judicial Committee of the Privy Council pointed in Narayana Swami v. Emperor AIR 1989 PC 47 : 40 Cri LJ 364 that ;
The word 'confession' as used in Evidence Act cannot be construed as meaning a statement by any accused 'suggesting the inference that he committed' the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. Ah admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.
6. The same view was taken by the Supreme Court in Palvinder Kaur v. State of Punjab : 1953CriLJ154 as well as in still a later case in Om Prakash v. State of U. P. : AIR1960SC409 . Our attention has already been drawn in this connection to a Division Bench of this Court to which one of us (Rangarajan J.) was a party in (Manik Malakar v. State of Assam) 1976 CH LJ 1921(Gau).
7. In the light of the aforesaid decisions we have only to set out what appellant Harduar had stated before P. W. 1.
On 20-3-1975 last Akalu, Patiram and I set up a new cattle farm at Nichali. We have cattle and deal in milk. Nichali is about 8 miles away from Borka Chapari, I came to the old cattle farm from new one. On my arrival at the old cattle farm at 1 or 11/2 P. M.I saw that the houses of the cattle farm were on fire. On my arrival Akalu and Patiram arrived there. They are my brothers. The wife and children of my brother, Akalu were in that cattle farm. Smti Jirjurini, the wife of Akalu told that 1. Sarowar, 2. Sukw and 3. Puuu had removed boxes etc. from the house and set the same to fire. When 1 found the three persons going away on seeing us I asked them to stop by shouting repeatedly. As they did not pay any heed to me I rushed to them. When I reached near them Punu wanted to hurl a 'ballom' (spear) at me. Striking with a lathi I diverted the ballam'. When the 'ballam fell down I picked it up. About that time Sarowar and Sukur dealt me lathi blow at my hands and legs, I, then hurled that 'ballam' at Sarowai and he fell down.
As Sarowar fell down Punu and Sukui were fleeing away. I, then, hurled the 'ballam' at Sukur too. As it did not hit Sukur well he and Punu fled away. I took the box and reached the old cattle farm. I halted at the cattle farm for the night, heard in the morning that Sarowar had died and left the place out of fear and reached Jonai. I got my injury at the hands and legs treated by the doctor at Jonai. At that time Sahadeo Goala of the nearby cattle farm arrived there and told that our names had been reported to the police. When the doctor removed the bandage of the hand on 30-3-1975 I appeared at the Jonai P. S. on 31-3-1975 and reported the occurrence. Then we were apprehended by Jonai Police and challaned to the Court.
8. There is no other evidence in this case concerning what appellant Harduar stated in the abovenoted confession regarding the old cattle fram being set on fire by the deceased and P. Ws. 8 and 9 and a box being removed from that house ; not even a suggestion to that effect was made to any of the prosecution witnesses in the case. P. Ws. 8 and 9, who purport to be the only eye-witnesses, did not even attempt to explain why the appellants and the other acquitted accused chased them. It appears that they are suppressing an essential part of the happenings on that day and in order to cover that gap resorted to several false particulars, resulting in their being confronted with a number of contradictions and even important omissions.
9. So far as P. W. 8 is concerned (from) his evidence it does not seem possible to reconcile it with what was stated in the ejahar at least on one essential particular. It has now been held by the Supreme Court when there is an omission in the previous statements of a witness which does not amount to a contradiction but yet throws some doubt on the veracity of what was omitted that doubt hast to be removed, vide Laxman v. State of Maharashtra where Beg J, (as he then was) observed : 1974CriLJ369 :--
It may not be out of place to mention here that the 11th Report of the Criminal Law Revision Committee in England, has recommended the abrogation of several artificial rules of evidence which may result in the exclusion of what is logically relevant (See Criminal Law Review, June 1973, p. 329). So far as our law goes, we do not think that Section 145 of the Evidence Act, on the very reasoning of Tahsildar Singh's case : 1959CriLJ1231 , cited by the High Court, was intended to exclude from evidence what is relevant and admitted, and, therefore, a proved omission from having its due effect in the assessment of probabilities. Section 145, Evidence Act applies only to 'contradictions.' If there are omissions in previous statements which do not amount to contradictions but throw some doubt on the veracity of what was omitted, the uncertainty or doubt may be capable of removal by questions in re-examination.
10. It is worth noticing that P. W. 8 did not mention in the ejahar about the appellant Harduar attacking the deceased, a fact of which he spoke only from the witness box for the first time, A serious doubt therefore arises concerning whether appellant Harduar attacked the deceased, a doubt which was not even attempted to be removed in any manner.
11. It is worth repeating that appellant Harduar had made a statement to P. W. 1 about his having gone to a doctor at Jonai for getting the injuries on his hands and legs treated ; but no doctor has been examined nor has any medical certificate placed before the Court ; the appellant Harduar thus suffered from the handicap of not even being able to elicit from the I. O. that he had injuries on his persons ; no witness, not even P. Ws. 8 and 9, spoke to the contrary, namely, to the effect that the appellant Harduar had not come by any injury. This is one more circumstance which bears upon the appreciation of the testimony of P. Ws. 8 and 9.
12. The next feature of some importance to notice is, that whereas P. W. 8 had stated in the ejahar that the persons other than Baldeo assaulted P. Ws. 8 and 9 with lathis his evidence before the Court was that appellant Harduar attacked P. W. 8 with a spear. There are also other contradictions between the ejahar and the evidence of P. W. 8, of lesser importance to which we consider it needless to refer.
13. The evidence of P. W. 7 does not tally with that of P. Ws. 8 and 9. Whereas according to P. W. 7. P. Ws. 8 and 9 came to his residence, according to P. W, 8. P. W. 9 alled the Majhis (fishermen) who came then and took them by boat to Charkharia ghat where there is a mango tree ; P. W. 7 came there and took (them) to his house. None of the fishermen have been examined. P. W. 8 also stated that, the deceased was taken to the house of P. W. 7. According to P. W. 9, after the fishermen left (after leaving him and P. W. 8 near the mango tree at the ghat), he called P. W. 7 and P. W. 7 took him and P. W. 8 to P. W. 7's house.
14. There are some other serious contradictions in the evidence of all the three witnesses namely, P. Ws. 7 to 9, between what they deposed in Court and what they had told the police. P. W. 7 had told police (vide the evidence of P. W. 10) that in the evening of 20-3-1975 two Majhis (fishermen) went to his residence and reported to him that they had brought two injured persons and that he should bring them ; despite his having made such a statement to the police, P. W. 7 denied that fact in Court. He also denied the fact of his having made a former statement to the police that on receipt of the information from the said fishermen, he (P. W. 7) informed one Iswari Singh ; Iswari Singh has not been examined! Contrary to the version now given by all the three witnesses before the Court, P. W. 7 had told the police that when he went to the ghat he found not only the deceased but P. W. 8 also there P. W. 7 has only mentioned that he got the information only from P. W. 9 but not from P W. 8.
15. In addition to the above infirmities we have it in the evidence of P. W. 8 before the Court that he had sustained injuries on his legs and left hand. According to the ejahar he had not mentioned the place where he had sustained the injuries ; even though P. W. 9 also, in addition to P. W. 8, had sustained injuries and both of them were sent to the doctor, no medical report concerning their injuries had been proved nor has any medical witness been examined.
16. P. W. 9 told the police that Akalu and Patiram (both the accused acquitted) had assaulted the deceased and P. W. 8 seriously ; they fell down. Not only P. W. 9 denied before the Court his having made such a statement before police, but he only admitted that Akalu-assaulted P. W. 8 and the deceased with lathi.
17. Besides the above features pertaining to the testimony of P. Ws. 8 and 9 there are several other contradictions to which we do not consider it necessary to refer here. We have been taken through their evidence fully and have listened to the comments on their evidence by both sides, We are not persuaded that P. Ws. 8 and 9 are witnesses of truth.
18. Besides P. Ws. 7 and 8, Hari Narayan Goala (P. W. 4), Sagor Goala (P. W. 5) and Indradew Goala (P.W. 6) were alone examined concerning the occurrence ; the rest are official witnesses. P. W. 4 only stated about having searched his buffaloes on the morning of 21st March, 1975 saw P. W. 7(?) being carried by some people ; P. W. 8 called him and saw the injuries on his body, As requested by P. W. 8, he came to the Dibrugarh hospital. P. W. 5 also stated that he was called by P. W. 8 to take him to Dibrugarh which he did along with P. Ws, 4 and 6. P. W. 6. spoke about the hearing of the cries in the house of P. W. 8 when he was milking cows and he saw P. Ws. 2 and 5 to carry P. W. 8. He was asked to help them, which he did. He saw the dead body of Sarwar near the mango tree at the ghat but nobody told him how P. W. 8 or the deceased sustained those injuries.
19. Dr. N. C. Pegu (P. W. 3) conducted the autopsy of the deceased and noticed the following injuries :--
(1) One punctured wound 2'x1/2' x whole thickness of the abdominal wall 1' below the right costal margin at the mid axillary line in direction of the wound inwards, slightly backwards. One foot length of small intestine protruding through the wound. Margin of the wound is retracted. Blood clot seen around.
(2) One lacerated wound l'x1/2' scalp deep over right parietal area 1' above right ear.
Further dissection of cranium and spinal cord mambrane and brain congested and softened. Thorax-lungs pale. Heart-empty Abdomen Paritonial cavity contained blood clot of 1 Itr. Stomach-empty, Large intestine and ascending column cut 2' x 1/2' whole thickness of the gut. Extravasation of blood around the wound. Faecal matters coming out. Liver cut in the lower margin 1/2 x1/2' and pale. Spleen and kidney pale, Bladder-empty.
20. According to P. W. 3 the injuries were ante-mortem and that could have been the result of shock and haemorrhage which are sufficient to cause, in the ordinary course, death. There can be no doubt concerning Sarwar Goala having died as a result of violence. The further question is whether the appellants have been proved to have been responsible for the same.
21. It not being possible for the prosecution to avail of the so-called confession of appellant Harduar, the only question for consideration is whether evidence of P. Ws. 8 and 9 could be safely relied upon for the purpose of convicting both or any of the appellants. The above discussion of the evidence of P. Ws. 8 and 9 clearly shows that it is not at all safe to act upon their evidence, which is discrepant in material particulars ; none of the discrepancies and contradictions discussed by us have been considered by the learned Sessions Judge.
22. In the circumstances, we are constrained to hold that no case free from reason, able doubt has been made out against both the appellants. The so-called confession of appellant Harduar cannot be used against him on the ground that on a full reading of the same it seems exculpatory, asserting a right of private defence. The same cannot, in any case, be used partially against the appellant Harduar ignoring that part which is in his favour. It cannot at all be used against the other appellant Baldeo. We find it appropriate therefore, to give the benefit of doubt to both the appellants and set aside the conviction and sentence on both the counts ; we do so accordingly. The joint appeal by both these appellants is allowed. They are directed to be released from jail forthwith unless they are liable to be detained for any other sufficient cause.