1. The appellant Sudama son of Sheoba has been convicted Under Section 302, Penal Code, of the murder of one Sk. Budhan of Nagardas and sentenced to death. He has also been convicted Under Section 392 read with 8. 34, Penal Code and sentenced to rigorous imprisonment for four years. With his appeal will also be considered a reference Under Section 374, Criminal P.C., for the confirmation of the sentence of death imposed on him.
2. The appellant Sudama was tried along with two others, Kisan Kanhuji and Sakharam Sonaji, who were acquitted. The prosecution ease is that on 20th October 1947 the three ac cussed assaulted Sk. Budban when he was work-ing in his field at Nagardas and inflicted a deep wound on his neck which severed the windpipe and the underlying tissues. Sk. Budban died of this wound in the hospital after an illness of about a week.
3. The conviction against the appellant rests cipon the dying declarations of Sk. Budhan and the confession of the accused made before Shri G. E, Verma, Magistrate, First Class, Basim. In appeal the learned Counsel for the appellant argues that the dying declarations are both inadmissible and incredible and that the confession of the accused was retraoted by him and is neither voluntary nor true. He argues that if these two pieces of evidence were discarded there is no evidence against the accused.
4. The motive for the offence wag robbery. The deceased Sk. Budban was in the habit of carrying a large sum of money on his person, and according to Sk. Nabi (P.W. 1) he had a thousand rupees with him that day. Sudama, the appellant, probably knew of this fact because be was-in the employment of one Govind, who was the bataidar of the deceased Sk. Budhan. Sudama used to see the deceased whenever the latter visited the field. The fact that the deceased was robbed of his money is proved also by the dying declarations of the deceased where, in answer to questions put to him; he showed by aigns that he had one thousand rupees with him. This part of the case, like the complicity of Sudama in this offence, rests upon the dying declarations of the deceased Sk. Budhan.
5. The dying declarations are four in number. Of these, two were not recorded because one was made to Shrawan, Police Constable (P.W. 6), when the injured person was being carried to the Akola dispensary and the other was made to Mahadeo (P.W. 11) which formed the basis of the first information report (ex, p-1). The other two were reduced to writing, and they are Exs. P-3 and p. 31. The former was recorded by the Police Head Constable Bajkaransing (P.W. 22) in the presence of two witnesses and the latter by Shri R. J. Kulkarni, Magistrate, Second Class (P.W. 12).
6. The attack of the learned Counsel for the defence m, therefore, directed against all these dying declarations, and he argues that none of them is admissible in evidence and that while the description of the signs ought to have been given the witnesses have given their own inter, pretation of the signs made by the deceased and not the description. The learned Counsel also argues that with such a serious injury the deceased could not speak as the air required to form the words must have escaped through the wound in the throat. We take up these arguments one by one.
7. The learned Counsel for the accused relies mainly upon the use of the word 'verbal' in Section 32, Evidence Act and supports his argument by referring to the dissenting judgment of Mah. mood J. in Queen Empress v. Abdullah, 7 ALL. 385 : 1885 A. W. N. 78 That case was considered by their Lordships of the Privy Council in Alexander Perera Chandraselcera v. The King, 41 0.W.N. 513 : A.I.R. (24) 1937 P.C. 24 : 38 Cri. L.J. 281 and the opinion of the majority in the Full Bench case was approved. Their Lordships' decision is that the questions put to the injured person and the signs made by him taken together amount to verbal statements within the meaning of the section. Though the decision of their Lordship of the Privy Council was given in connexion with a Ceylon Ordinance, the interpretation is binding upon us, because the words of the Ceylon Ordinance are identical with the words used in the Indian Evidence Act, The dying declarations would, therefore, be admissible in evidence, whatever the value one might attach to them.
8. The learned Counsel for the defence nest argues that even if the deceased mentioned the name of the appellant it was because the accused arrived on the scene immediately after the murder had been committed by other persons; in other words, that Sudama's name was mentioned because he was a witness rather than the murderer, In our opinion, the context in which Sudama'a came was mentioned by the deceased Sk. Budhan leaves no room for doubt that he was being named as an as3ailant and not as witness.
9. It was contended by the learned Counsel for the defence that the persons who recorded Exs. P. 3 and P-31 should not have given their own interpretations of the signs, but should have left that to the Court. This undoubtedly is the true mode of recording dying declarations made by signs. But, as their Lordships of the Privy Council have pointed out, the dividing line between the description of signs and their interpretations is very thin. In our opinion, the manner in which the replies were elicited was so open and simple that a nod in answer or any other sign of assent could not be mistaken for anything else, Again the dying declaration was not made once but on four different occasions to four different persons, and it is inconceivable that all of them would be mistaken about the meaning of Sk. Budhan. The matter has been exhaustively considered by the learned Additional Sessions Judge, Akola, and we are of opinion that his conclusion is correct. We have scrutinized all the evidence and the four dying declarations made by Sk. Budhan and have satisfied ourselves that Sk. Budhan did mean that the appellant was one of his assailants.
10. In reaohing this conclusion we have examined not only the questions which were put to Sk. Budhan but also the description of the signs given by him and the context in which such questions wersput. Sk. Budhan realized that he was being questioned about his assailant when he gave the replies by signs, which were described and also interpreted in Exa. P-3 and p.. 81 by Bajkaransingh (P.W. 22) and Shri B. J. Kulkarni (P.W. 12).
11. The general argument that Sk. Budhan was not in a position to speak because of the injury to the throat can be disposed of easily. This argument affects the testimony of Shri Eulkarni, to whom the deceased named Sudama, and also Shrawan's evidence. The injury was situated at the upper margin of the larynix and would therefore be above the vocal cords. Even if it were below the vocal cords, it would still be possible for the deceased to speak is the wound was not gaping at that time. We have the opinion of Taylor in his Medical Jurisprudence, vol. I, at pages 358-353, 9th edition and Modi in his Medical Jurisprudence and Toxicology, 9th j edition, at pages 250-251. Further the medical ' evidence in this case shows that it was pos3ible for Sk. Budhan to speak if his throat was bandaged at the time. It is obvious that immediately after the discovery of the injury to his throat some effort to bandage the wound must have been made. In fact, Shrawan (P.W. 16), Police Constable, tells us that a dupatta had been firmly tied round the neck and the post-mortem report disclosed that after the admission of the deceased to the Basim Hospital his wound was stitched. The learned Counsel for the defence contends that even then it would not have been possible for Sk, Budhan to make any coherent speech. As we have shown above, the opinion of the learned doctors in the two treatises to which we f have referred shows that the victims of cutthroat wounds are sometimes in a position to speak even without their wounds being stitohed. It is unlikely that so many persons would be mistaken about the simple fact whether the deceased was capable of speaking or not. We are accordingly satisfied that the deceased Sk. Budhan was in a position to speak as alleged by Shrawan and Shri Kulkarni and also to make signs by which the accusation against Sudama could be made out. The suggestion that Sudama was being named as a witness cannot possibly be accepted in view of the manner in which the questions were put and the replies given.
12. The conviction can be rested solely upon the dying declaration of the deceased, but in the present case, we have a confession of the accused recorded by a Magistrate. The confession, as is usual in such cases, has been retracted by the accused, who alleged that he was beaten by the Carole Inspector and was forced to confess by the police. In support of this, the learned Counsel for the defence has drawn our attention to the evidence of some witnesses who have stated that they were also suspected and were beaten by the police, All these witnesses are persons who were, at one time or other, detained by the police because according to the police information they had shared in the spoils. Their testimony would in any case be suspicious, and their statements that they were beaten by the Cirole Inspector must be taken with great deal of caution. It is to be noticed that the accused was placed before a Magistrate almost immediately after his arrest, and he did not protest even before the committing Magistrate till the time he was examined Under Section 812, Criminal P.C. One would expect that the earliest opportunity would be taken by the accused to get rid of a confession which was not voluntarily made and also to inform the Court about the beating, if any Under the law, a confession must be presumed to be made voluntarily unless the contrary is proved. The 1s Magistrate gave due warnings and appended a certificate that he was satisfied for the reasons he had given that he believed the statement to be voluntary. In our opinion there is no material on which a contrary view can be taken by us. The confession in question sets out the whole incident with a wealth of detail which it would be impossible to put in the mouth of the appellant Sudama if he had been coached by the police to make a false confession. In our opinion the confession is voluntary and also true and very powerfully corroborates the dying declaration of Sk. Budhan.
13. We are fully satisfied that there is no manner of doubt about the guilt of the appellant Sudama, and his conviction is perfectly correct. No question of any extenuation in punishment arises in the present case. The offence was extremely brutal and was carried out upon the helpless old man probably by more than one assailant, some of whom must consider themselves lucky inasmuch as they were not ecnvicted and no appeal wag filed by the Provincial Government. It was for robbery and gain. There are no extenuating circumstances whatever in the present case, and we confirm the sentence of death passed upon the accused as well as the sentence of imprisonment passed upon him Under Section 392, Penal Code. The appeal is dismissed and the reference accepted.