Rajindar Sachar, C.J.
1. This is an appeal by one Passang Lama who has been convicted by the Judge Central Court under Section 304(II) read with Sections 149, 147, 448, 452 and 342 of the Indian Penal Code and sentenced to undergo R. I. for 18 months, 1 month, and 3 months and 1 month each on two counts respectively. The sentences have been however ordered to run concurrent.
2. The appellant along with four other accused namely Tek Bahadur Chetri, Bhim Prasad Chetri, Nim Tshering and Dhan Bahadur were charged under Sections 147. 302 read with Sections 149, 452, 448 and 342 read with Section 149 of the Indian Penal Code for having formed an unlawful assembly in prosecution of common object and committed a house trespass into the house of Phool Maya and Chandra Maya and of Champa Sherpani and of committing the murder of Abhiram, Constable, on the night between 26th and 27th April, 1973, at Taja Pachey Khola.
3. The prosecution case is that one Ghishing Tamang had let out some land to Maniraj - husband of Phool Maya Tamangni and brother of Chandra Maya Tamangni, for cultivation on Adhya. The appellant wanted that piece of land for cultivation and on refusal he bore enmity with Maniraj. On 23-4-1974 there was quarrel between Maniraj and his second wife Hari Maya who left her house. One Lal Bahadur was sent to search for the wife but when he did not come back, Mani Raj himself went out and informed his family members that Lal Bahadur had been detained at the house of the appellant. Maniraj then accompanied by one Budhirnan Sherpa is said to have left for police station Rhenock for reporting the incident of wrongful confinement of Lal Bahadur. They however never returned to their houses and have not been heard of since then, However Lal Bahadur was removed from the house of Passang Lama by the police and was challaned for working in the village without any work permit.
4. On 26-4-1973 Lal Bahadur returned to the village in the company of writer constable Abhiram deceased who stayed at the house of Maniraj for the night. At 11-00 p. m. a crowd came to the house of Maniraj shouting 'Chor Ayo Chor Ayo.' Chandramaya opened the door. The appellant and the other four accused were said to be carrying lathis and torches with them and they searched for Maniraj Tamang and Budhiman Sherpa but having not found them there they went to the house of the appellant. Soon after the deceased asked Phulmaya and Chandramaya to leave the house and these two women accompanied the deceased and had gone about 200 paces when a crowd again came shouting 'Chor Ayo Chor Ayo.' The two women went and hid themselves in the maize field close by and saw several persons beating the deceased who on receiving injuries fell down. Chandramaya and Phulmaya were then asked to go to the house of the appellant where they remained for the night but were allowed to go back early in the morning. Abhi Mukhia who had been injured had been removed to the house of the appellant.
5. On 27-4-1973 at 11-40 a. m. accused Nim Tshering made a report and thereafter one Mr. P. D. Subba, the then Officer Incharge Rhenock started investigation. He found Abhi Mukhia lying injured in an unconscious state and removed him to the police station where from he was sent to the military hospital at Chalishey through Havildar Karnabir. Thereafter he was removed to the hospital at Gangtok.
6. The deceased was admitted as out door patient on 27-4-1973 and on 30-4-1973 Dr. P. S. Giri did the autopsy of the deceased and found the following injuries:
1. Haematoma all over the Scalp.
2. A transverse fracture from the right base of the Skull to the left base, involving the right temporal, parietal and left temporal bones.
3. Haematoma over the left parietallobe of the brain.
4. Haemorrhage all over the brain area.
7. The death is said to be due to internal haemorrhage and shock on account of the injuries.
8. On 28-4-1973 the appellant, Dhan-bahadur and Bhim Prasad Chettri were put under arrest others having been detained already. Three other persons namely Phulesar Prasad, Ainul Haq and Himalchand had also been charged sheeted but they have been discharged by the lower court.
9. The accused denied that they participated in the murder of writer constable or that they wrongfully confined. Phool Maya and Chandra Maya. The appellant has further stated that he has been involved due to enmity as some land belonging to Abhishing Tamang had been given to both him and Maniraj but the later had not allowed him to cultivate the said land.
10. The accused Nim Tshering Sherpa, Tek Bahadur and Dhan Bahadur made confession under Section 164, Criminal P. C. which was recorded by P. W. 7, the then District Magistrate East, Sikkim at Gangtok, P. W. 1 Phulmaya Tamangni wife of Maniraj and P, W. 3 Chandra Maya sister of Maniraj are said to be the eye-witnesses of the occurrence.
11. The court below has relied on P. Ws. 1 and 3 and also the confessional statements of the three accused to come to the conclusion that the common object of the accused may not have been to commit murder of Abhiram but the object and act was such that it was likely to cause death of Abharam. He accordingly found the offence punishable under Section 304(II) read with Section 149, I. P. C. proved against all the accused. Similarly he also found charges of offence under Sections 147, 448, 452 and 342, I. P. C. also established against the appellant and convicted him.
12. Now it will be seen that the prosecution case is that the appellant was inimical to Maniraj because of dispute over the land and because of this that he along with his co-accused had gone to the house Maniraj with a view to beat him. It is important to note that it was never the prosecution case that any of the accused including the appellant had any motive to kill or even beat the deceased Writer constable Abhiram Mukkhia. Not only was there no motive, but even no prosecution witness has deposed that the accused had a common object to murder Abhiram Writer Constable, P. W. 1 who has narrated the main prosecution story has stated that her husband Maniraj accompanied by Budhiman Sherpa left for Rhenock police station for reporting about the wrongful confinement of Lal Bahadur, and that it was on the following day that the Writer Constable came to her house to stay for the night. According to her at about 11-00 p. m. several persons entered the house and when her husband's younger sister opened the door she found the accused present in front of the crowd. According to her they seemed to have come for Maniraj, but on not finding him went away. The crowd went to the shop of Durga Prasad and thereafter to the home of Budhiman Sherpa which were close by and then the crowd went to the house of the appellant. After the crowd had disappeared the constable came back and suggested that they along with the children should leave the place. They had gone about 200 paces when the crowd came shouting 'Chor Ayo Ayo.' The women hid themselves in the maize field. The crowd asked them to return home. The crowd was carrying torches and she recognised appellant and Bhim Prasad by torch light who asked them to return to the house. At that time the accused Tek Bahadur who was carrying a torch and a stick flashed his torch at constable and hit him with a stick. The stick hit the constable over his head. The entire crowd then surrounded the constable who on receiving the stick blow had fallen down. Thereafter the crowd on the asking of the appellant went to the house of the appellant and where on reaching the house she recognised the appellant, Nim Tshering, Tek Bahadur, Dhan Bahadur, Bhim Prasad accused. She also found the writer constable in an injured state lying at the house of the appellant. She and P. W. 3 stayed for the night at the house of the appellant and at 4-00 a. m. they along with the children were allowed to leave the house. She has also stated that the appellant wanted the land for cultivation which had been given by Gyshing Tamang to Maniraj. Now according to this witness the only person who had hit the deceased was accused Tek Bahadur and no one else. The Court below has however mis-read the evidence because it has stated that according to this witness after the deceased had been hit by Tek Bahadur the entire crowd beat the Writer constable. In her evidence I do not find any mention that the entire crowd beat the writer constable, rather the evidence is that after Tek Bahadur had hit the Writer constable the entire crowd then surrounded the Writer constable. The version that the entire crowd would have beaten the constable is also not consistent with the injuries which are only three and which could not be the case if 8/10 persons had taken part in beating Writer constable. It is also significant that this witness does not name accused Dhan Bahadur and Tshering Sherpa as being amongst the crowd when the constable was hit. She only names them as having seen them at the house of the appellant but that is nobody's case that any beating was given at that time.
13. P. W. 3 the sister of Maniraj has apart from narrating the story as given by P. W. 1 has stated that after they had covered a small distance they found a crowd and were told to go back to their house and that in the light of the torches she found the accused Tek Bahadur, Nim Tshering Sherpa beating the Writer constable with a stick. According to her the appellant was also in the crowd there. The writer constable then fell down and was surrounded by the crowd. The appellant asked them to go to his house, where on reaching they found Nim Tshering and Tek Bahadur appellant (sic) (accused?) there and the constable lying injured in the verandah. Apart from the admissibility of the evidence of this witness (which I shall discuss a little later) it is significant to note that no part is attributed to the appellant in beating of the deceased.
14. P. W. 2 wife of Budhiman Sherpa has deposed about the crowd having gone to her house which included the appellant and his co-accused who asked about her husband and not finding him there they went away. She further says that she was told on the following morning that some body has hit the writer constable. Of course she is not the witness to the actual occurrence. P. W. 4 only deposes that on the night he heard the appellant shouting that those people would run away and that they should be removed to his house and that he took child to the house of the appellant and found there the writer constable lying injured. P. W. 5 is Lal Bahadur Chettri who has stated that he was taken to the house of the appellant as it was said that he was roaming in the village in the day and would commit theft in the night and that on the same night a Havildar came from the police station and removed him to the police station. He was sent to Gangtok with the writer constable and when they came back he went into his room and the writer constable stayed in the house of Maniraj. Next day he was asked by the accused Nim Tshering, Tek Bahadur, Dhan Bahadur and others who came there to accompany them to the house of the appellant where he found the constable lying unconscious. He is also not a witness to the occurrence, P. W. 6 has stated that the appellant came to him early in the morning at 4 a. m. and asked him to come to his house where he found the children of Maniraj sleeping there in the verandah and writer constable lying injured. He stayed there till 5-0 a. m. when he went back. P. W. 7 is the District Magistrate who recorded the confessions. P. W. 10 is the investigating officer who had stated that he found the writer constable lying unconscious on the night between 26th and 27th April, 1973 and was removed from the house of the appellant. He has stated that Nim Tshering came to the Police station at 11-45 a. m. and had informed him that the writer constable was found lying in an unconscious state. On 28th April he got the appellant, Dhan Bahadur and Bhim Prasad Chettri arrested. He stated that he did not register the case on getting information from the accused Nim Tshering because there was no evidence and that he has registered the case only after visiting the house of the appellant.
15. Thus the only alleged two eyewitnesses are P. W. 1 and P. W. 3.
16. Confessions, statements, of accused Tshering, Dhan Bahadur and Tek Bahadur were recorded by P. W. 7 who has proved them. There is nothing to suggest in the cross-examination of this witness that the confessions were not voluntary. But before any reliance can be placed on the confession it has to be proved that it amounts to an acknowledgment of the guilt by a person who has committed the crime. It is well settled:
No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession,' vide Narayana Swami v. Emperor AIR 1939 PC 47 : 40 Cri LJ 364.
17. The alleged confession of Tek Bahadur when translated into English reads as under (I have had his statement translated into English jointly by the counsel for the appellant and the court inspector for the prosecution who have certified it to be a correct translation of the statement of the accused Tek Bahadur):
Tek Bahadur Chettri.
My True statement.
As there was rumour that thief had come the villagers held a meeting to keep a watch and all of us started to keep a vigil. One was even apprehended. The deceased Writer had brought him back from Gangtok towards Rhenok P. S. At night there was a Halla that someone from the house of Moni-raj Rai had flashed a torch light to the house of P. S. Lama. Thinking that a thief had come all of us gathered together. We searched the houses of Maniraj and one Modi but we found nothing. So again we returned to the house of P. S. Lama some returned to their own houses. We were sitting there and were getting ready to go to our own houses. It was raining. It was then about 1.30 A. M. in the night. At that time Bol Tamang informed that thieves were taking away Maniraj's children and running away. Therefore P. S. Lama said 'we should catch hold of the thief.' We all went towards the bridge. Actually one man was going away with a sack on close behind were the wife, younger sister and children of Maniraj. When we went there the man with the sack on started running away along the road. The wife, younger sister and children of Maniraj ran towards the Jungle. As we tried to catch the man with the sack on he ran away. And so I struck him once with a lathi. And others also assaulted him with lathis, kick and fists. He fell down. When the sack was taken out we recognised him to be Writer Babu. Thereafter we escorted him to the house of P. S. Lama and laid him down there. As it was night who were the persons hitting I could not see properly. We also brought the wife, younger sister and children of Maniraj. Atta was also carried. On top of it a sack was also worn. No one recognised him to be Writer Babu and he did not give out his identity. But as he was running away and we could not catch him he was assaulted. The following day he was taken to Rhenok Military Hospital. I have this much to say.
Sd/- Tek Bahadur Chhetri.
18. Now according to the statement of the accused Tek Bahadur he and other co-accused searched the house of Maniraj accused because they heard a rumour that a thief had come to the village and also because some one had flashed a torch at the house of Passang Lama. Subsequently on hearing the rumour that the children of Maniraj were being taken away they went towards the side when they saw one man going away with sack behind the wife and younger sister of Maniraj. The man with sack started running and in order to catch him he hit him with a lathi and others started beating him with a Lathi. He fell down and when the sack was taken out they recognised him to be writer constable from where he was brought to the house of the appellant. He has also stated that as it was night the person hitting could not see him properly and no one recognised him to be writer babu and he also did not give out his identity.
19. Dhan Bahadur, accused had also made a statement and has also stated that when he went towards the bridge, one man was carrying 9.10 kgs. atta on his head and on top of that he was wearing a sack and was taking away the wife, younger sister and three children and in attempt to apprehend him he ran away and Tek Bahadur gave a chase and struck him with a lathi from behind. Thereafter he fell down and the sack was taken out and then he was recognised to be constable babu. He had also stated that he did not see the appellant assailing him. The writer constable was assaulted because he was taken to be a thief and due to mistake.
20. Accused Nim Tshering has stated that on hearing some noise he went towards the bridge and when he reached there it was the deceased police constable and there was a sack of atta also.
21. Thus in none of the statements made by these three accused is there any admission of having committed any offence. As a matter of fact the statements are totally bereft of even a suggestion that the accused had common object or wanted to murder Maniraj or writer constable or even beat either of them.
22. It is thus apparent that neither of these statements are in any way inculpatory or as amounting to an admission of guilt. Confession is an admission of an of-fence by a person charged with the offence and as there is no admission, the trial court committed an illegality in assuming these statements of the accused to be confessions and seeking to use them for convicting them. It is clear that the statements made by the three accused do not suggest that they had any ulterior motive to give beating to the Writer constable, even to Maniraj. Their version that on getting the. information that some Goondas and thieves were taking away their children they followed them and one person who was running away was chased, and given stick blow by Tek Bahadur in trying to apprehend him are completely exculpatory and do not in any way amount to any admission of guilt. There is nothing improbable in itself in this version of the accused nor the prosecution has produced any material to show that the version of the accused is contradicted by any evidence. Reliance by the court below on these alleged confessions is therefore misplaced.
23. The prosecution has produced allegedly two eye-witnesses P. W. 1 and P. W. 3, Neither of them attribute any blow having been given by the appellant nor is there anything in their evidence to show that there was any common object of the accused to beat the Writer constable. That apart even the evidence of P. W. 3 is inadmissible in evidence. It appears that P. W. 3 was examined before the charge was framed by the court on 8th of August, 1973. The court framed the charge on 9th of November, 1973. Thereafter summons were issued to recall Champa Sherpani P. W. 2 and Chandra Maya P.W. 3 for cross-examination but the report was that they were not traceable. The court thereupon on 9th of October, 1974 noted that it is no use issuing the summons any more and observed that the evidence of such witness shall have to be considered cautiously in accordance with law. Though under the Code of Criminal Procedure 1898 the procedure to be followed in the present case is that as laid down in Section 207 but as the Code in terms is not applicable in the state, the procedure that was followed by the court below was that of a warrant case, as laid down in Section 251 of the Code. Section 254 of the Code envisages for the framing of the charge and Section 256 provides if the accused claims to be tried he shall be required to state whether he wishes to cross-examine any of the witnesses, and if so which of the witnesses produced by the prosecution whose evidence has been taken and if he wishes the witnesses named by him shall be recalled. Though the accused had wanted to cross-examine P. Ws. 2 and 3 but they were not made available for cross-examination, as summons could not be served on them. Thus a valuable right of the accused as given in Section 256 has been denied to them. The fact that the accused had cross-examined P. Ws. 2 and 3 before the charge had been framed is no reason to deny the right of cross-examination of the said witnesses after framing the charge. The accused was thus denied the right to cross-examine P. W. 2 and P. W. 3 and their evidence was no legal evidence, and could not be relied upon as held in Sadek Mahammad v. Jyotish Chandra AIR 1948 Cal 83 : 49 Cri LJ 12. As the trial Court has based his judgment on the inadmissible evidence of P. W. 2 and P. W. 3 it has acted against the mandate of law and principles of natural justice and its judgment is therefore vitiated.
24. The charge of wrongful confinement found against the accused or the charges under Section 147 for rioting or house breaking under Section 448 and house trespass after making preparation for causing hurt under Section 452 are all intimately connected with the charge under Section 302 of having formed unlawful assembly in prosecution of the common object to cause death of Writer constable. Once it is found, as I do, that there was no common object of the accused to cause death of the Writer Constable the other charges against the accused automatically fell down. Even the prosecution story as narrated does not make out a case of any rioting or of unlawful assembly or of house breaking. The accused went to the house of Maniraj shouting 'Chor Ayo Chor Ayo' and not finding any one came back without causing any damage which conduct is inconsistent with the object to commit riot. When P. W. 1 and P. W. 3 were brought to the house of the appellant they were only kept in the night apparently for safety and then allowed to go early in the morning without any hindrance, even before the police had reached the house of the appellant. This conduct is also not consistent with any object to wrongfully confine these two witnesses.
25. I thus find that the prosecution has failed to prove any charge against the accused. The whole story seems to be mixed up. Apparently the motive suggested is enmity between Maniraj and the appellant. The prosecution story nowhere tries to explain how is it that the Writer Constable who was said to be staying at the house of Maniraj for the night did not disclose the identity when he was chased. The prosecution case itself is that the crowd was shouting 'Chor Ayo Chor Ayo'. It is not shown that that was a drama which was put up and that the accused were not genuinely looking for a thief and that in this melee and confusion blows were given inadvertently to Writer constable but without any intention to beat or murder him. In this state of affairs it seems to me that it would be unsafe to base conviction on paltry and unsatisfactory evidence of P. W. 1.
26. I would thus find that the case is not free from doubt and therefore giving him the benefit of doubt I would set aside the appellant's conviction and acquit him.
27. The other accused have not filed any appeal against their conviction. But as I have found that the whole prosecution story is not free from doubt, it would not be in accordance with justice to allow their conviction to stand. I would therefore in exercise of the powers of this Court under Section 439, Criminal Procedure Code set aside their conviction as well and acquit them.
28. The result is that the appeal is allowed. Conviction of the appellant and the other accused namely - Nim Tshering, Tek Bahadur, Dhan Bahadur and Bhim Prasad is set aside and they are hereby acquitted.