1. This is a case of some peculiarity inasmuch as the appellant has been convicted of murder on his own plea and has been sentenced to death, there being no evidence recorded in the Court of Session. The learned Judge below has explained very carefully and fully why he adopted the course of convicting the accused on his own plea, and it seems to me clear from the judgment that the learned Judge gave the matter much consideration and acted as he thought for the best in the circumstances of some novelty. Nor can it be said, at least in my opinion, that the learned Sessions Judge was definitely wrong in any point of law. Probably if his attention had been called to the practice of the Courts in such circumstances, he would have acted otherwise. That practice is defined by Sir Lawrence Jenkins, C.J. and Mr. Justice Russell in Emperor v. Chinia Bhika Koli 8 Bom. L.R. 240 : 3 Cri. L.J. 337 where it is laid down that 'it is not in accordance with the usual practice to accept a plea of guilty in a case where the natural sequence would be a sentence of death '. The learned Judge below points to Section 271 of the Criminal Procedure Code and observes quite correctly that he was bound to record the accused's plea of guilty. The section, however, though it directs that the plea shall be recorded, does not direct that the accused shall be convicted thereon, but only that he may be so convicted, that is to say, it is left to the discretion of the presiding Judge in each particular case to determine whether in spite of the plea it is or is not desirable to enter upon the evidence. In the case before us the practical difficulty as entailed by the accused's conviction on his mere plea is obvious. For the question which we have to determine is, assuming that the appellant is guilty of the murder, whether the sentence of death should or should not be enforced. Now that is a question which could only be answered when the circumstances of the crime are known to us, and the circumstances of this crime are not known to us. It may be that there are cases of murder where the circumstances would be so clear that a Bench of this Court would have no difficulty in confirming the capital sentence on the accused's mere plea of guilty. But this is not such a case. In the Magistrate's Court there was, we under-stand some evidence led with a view to the inference that the accused was of unsound mind, and that is the plea which is the basis of his present appeal to us. There is nothing on our record which could enable us to say whether that plea is substantial or groundless. It is urged on behalf of the appellant that the crime itself was committed without any assignable motive, and, on the other hand, it is contended that there was some quarrel preceding the crime and that that quarrel led to the deceased's murder. It is precisely upon such points as these that we desire information in order to guide us to a decision whether the capital sentence is deserved. Was there a quarrel between the deceased and the accused prior to this offence, and, if so, what was its nature and by what interval of time did it precede the offence? These are questions upon which it is manifestly important to us to have an answer. They are, however, questions upon which on this record we have no answer. Therefore, in this particular case it seems to me that the learned Sessions Judge would have been better advised if he had taken the evidence available and I think that must now be taken in order that hereafter we may be in a position to decide rightly the important question which it is our business to decide.
2. I would, therefore, reverse this conviction and sentence and direct, as was done in Chinia's case 8 Bom. L.R. 240 : 3 Cri. L.J. 337, that the accused be tried in accordance with law notwithstanding his plea of guilty.
3. I agree.