M. Sadasivayya, J.
1. The appellant Awwannappa was the accused in Sessions Case No. 21 of 1957 on the file of the Extra Additional Sessions Judge of Belgaum. He was charged and tried for having caused the death of his son Thimmappa by cutting him with a sickle on the morning of 11-11-1956 at Hoskoti, and thereby having committed an offence punishable Under Section 302 of the IPC The accused had pleaded not guilty. The learned Sessions Judge bund him guilty of the offence and sentenced him to imprisonment for life; it is against the said conviction and sentence, the present appeal has been preferred.
2. The prosecution case was to the effect that the deceased Thimmappa was the son of the accused by his first wife. The said first wife of the accused having died while she was still very young, the accused married a second wife about 20 or 25 years back. About 1 or 1 1/2 months prior to the occurrence, a division, had taken place between Thimmappa and the accused; along with some other properties, an open site adjoining the house of the accused had been given to Thimmappa; on this site, Thimmappa had put a mud covered roof over the walls and he had been residing there with his wife.
As the rain water used to be flowing from the roof of the accused's house on to the mud roof under which Thimmappa had been dwelling, Thimmappa had put up some obstruction on his roof in order to prevent the water flowing on to his mud roof from the adjoining roof of the accused's house. The accused wanted this obstruction to be removed and in that connection, words had passed between the accused and the deceased on the day previous to that of the occurrence. On the morning of the day of the occurrence (which was a Sunday), the accused attacked Thimmappa with a sickle when Thimmappa was near his cattle shed which was near his hcrase.
The accused inflicted injuries with the sickle and on being pursued by the accused, Thimmappa ran away in the direction of Koreva temple which was about 20 akadis away and fell down there and expired. (We are informed that an akadi is about a baru or about 4 feet in length.) P.W. 2 Lachappa who happened to be passing in front of Thimmappa's house just at that time, heard a cry 'Ayyoyo' from the side of Thimmappa's house, ran in. that direction and saw the accused hitting...Thimmappa on the neck with a -sickle. He also law Thimmappa running towards the temple of Karcva, being pursued by the accused. He went and caught hold of the accused, and Pandappa another son of the accused came and snatched away the sickle from the hands of the accused.
Thereafter, P.W. 2 took the accused and made him sit on the katta in front of the accused's house. P.Ws. 3 and 4, who are two women who had been standing on the road talking with each other, also saw Thimmappa running in the direction of Kareva temple and falling down there. P.W. 3 has given evidence in a somewhat confused manner and it is probable that she must have become extremely frightened and ran away without observing the details. At one time she states that she saw the accused having a sickle in his hand and at another time she states that she did not see the sickle in the hands of the accused; admittedly she had got frightened and ran away. But, P.W. 4 Neelawa has given very clear evidence.
She has stated that P.W. 2 Lachappa caught hold of the accused who was pursuing Thimmappa. She states that Thimmappa had been cut and was bleeding and that the accused had a sickle in his hand. She also states that Pandappa snatched away the sickle from the hands of the accused. P.W. 1 Hanamappa who is a nephew of the accused, had interceded on the previous day between the accused and the deceased when they were quarrelling about the removal of the obstruction that had been put up by the deceased on his mud roof.
On the morning of the occurrence, when P.W. 1 was returning from the side of his field after answering the calls of nature, he saw a crowd which had gathered near Kareva's temple. He went and saw the corpse of Thimmappa which was lying there with injuries on the body. He learnt from P.W. 2 Lachappa that it was the accused that had killed Thimmappa. He also saw the accused who was sitting on the katta of his house and that the clothes on the body of the accused had been stained with blood.
He immediately went and reported the matter to the Police Patil. Then he also got written his complaint as per Ex. 5 and gave it to P, W. 9, the Police Patil. The Police, Patil P.W. 9, on learning from P.W. 1 about this incident went and saw the dead body of Thimmappa which was lying near Kareva temple. He was informed by P.W. 2 Lachappa who was there, that it was the accused that had killed the deceased. P.W. 9 saw the accused sitting in front of his (accused's) house and that the accused's clothes were blood-stained. P.W. 9 took the accused into custody.
Then, P.W. 9 took P.W. l's complaint Ex. 5 and his own report as per Ex. 22 and went to the Police Station at Katkol; he took with him the accused also. After reaching Katkol which was about 18 miles away, he handed over the accused and Exs. 5 and 22 to the Police Officer who was in charge of the Police Station House. P.W. 11 who is the Police Sub-Inspector that was in charge of the Police Station House at Katkol, states that it was at about 6-15 P.M. that he received Exs. 5, 22 and the accused who had been brought there by the Police Patil.
3. The evidence of P.W. 2 shows that he actually witnessed the accused hitting Thimmappa on the neck, with the sickle. The evidence of P.W. 2 about the accused having pursued Thimmappa, about Pandappa having snatched the sickle from the hands of the accused and about P.W. 2 having caught hold of tie accused and led him away has been corroborated by P.W. 4 Neelawa. To some extent it is corroborated by the evidence of P.W. 3 also, though P.W. 3 appears to have been too much frightened at that time to have properly observed the details. Without any delay, the whole incident was reported to the Police Patil by P.W. 1. The Police Patil took the accused into custody and took him to the Police Station House and produced him before the Police Sub-Inspector P.W. 11 on the same day. The accused wore blood-stained clothes when he was produced before P.W. 11. No good reason has been shown, as to why the evidence of these witnesses should not be believed. In the course of his examination Under Section 342 of the Cr.PC, the accused has admitted that he had been wearing the bloodstained articles Nos. 1 and 2 and that he was taken into custody by the Police Patil and then produced before the Police Station Officer at Katkol. But the explanation given by him is that it was his son Pandappa that had inflicted the injuries on Thimmappa, and that thereupon, he (the accused) went and embraced Thimmappa and that is how his clothes came to be bloodstained. He also denied that there was any sickle in his hand; he denied that any sickle from his hand was snatched away by Pandappa.
It is worthy of note that this explanation was not put forward in the court of the Committing Magistrate; on the other hand, the accused stated before the Committing Magistrate that he did not know anything about the offence. The explanation given by the accused before the Court of Session is clearly an afterthought. The evidence of the prosecution witnesses above referred to, is, in our opinion, sufficient to establish that it was the accused that committed the offence which resulted in the death of Thimmappa. The reason given by the accused for these witnesses deposing against him is, that they are doing so with a view to shield Pandappa.
We do not see any ground for the witnesses trying to shield Pandappa if he was the real offender; there are no good grounds to suspect these wit-nesses of trying to falsely implicate the accused. Sri Dayananda the learned Advocate for the appellant urged that Pandappa should have been examined as a witness; but, we find from the records that a memo has been filed in the trial Court by the Public Prosecutor to the effect that the prosecution does not wish to examine Pandappa on the ground that he has become hostile. There is nothing very surprising in this, in view of the fact that Pandappa is no other than a son of the accused. t Objection cannot be properly taken, under these circumstances, to the non-examination of Pandappa.
It was pointed out on behalf of the appellant that while according to the evidence of P.W. 2, one Sivanappa who came there removed his shirt from his body and bound it round the neck of Thimmappa after the incident, it appears from Ex. 5 as if P.W. 2 had informed P.W. 1 that it was the accused that bandaged the neck of Thimmappa with the shirt; we find from Ex. 5 which is in Kan-nada that what P.W. 1 was told by P.W. 2 was really that it was Sivanappa that bound his shirt round Thimmappa's neck; while typing the English translation of Ex. 5, a typing mistake appears to-have been made with the result that the typed copy reads as if it was the accused that was bandaging Thimmappa's neck.
From the original document, we are satisfied that there is no inconsistency between P.W. 2's evidence and what he told P.W. 1 in regard to this matter. It was pointed out that this Shivanappa has not been examined. There is nothing to indicate that Shivanappa, apart from having gone there and bandaged the injury on the neck of Thimmappa, had 4 witnessed any part of the incident as such; his non-examination by the prosecution cannot be said to be a material omission.
4. On 13-11-1956, which was the day alter the occurrence, the sickle (article No. 8) was recovered by the Police, on the information of the accused from a hay-stack in the backyard of the accused's house. In the course of his examination Under Section 342 of the Cr.PC, the accused denied having produced the sickle. It was argued by Sri Dayananda that the recovery of the sickle is liable to be viewed with suspicion, in view of the circumstance that the accused had been taken into custody shortly after the occurrence and had been all the while in Police custody and could not have had any opportunity to conceal the sickle in the haystack. Such a contention had been advanced before the learned Sessions Judge also.
There is no force in this contention Because, there was considerable interval of time between the occurrence and the accused being taken into custody by the Police Patil and it is not improbable that the sickle which had been taken away by Pandappa may have been hidden in the haystack to the knowledge of the accused. But, we are not inclined to attach much importance to the recovery of the sickle in view of the fact that the sickle had not been sent to the Chemical Examiner for establishing that it had been stained with human blood it was contended by Sri Dayananda that the accused is a fairly old man and that it is unlikely that he could have successfully attacked d young man like the deceased Thimmappa.
But this contention overlooks the fact that while the accused was armed with a sickle, Thimmappa was unarmed; further, there is no evidence-to indicate that Thimmappa offered any resistance or fight. On the other hand, he appears to have run away and was being chased by the accused. Even a young man when taken unawares and attacked by an old man armed with such a deadly weapon as the sickle, may not be able to offer successful resistance.
5. In addition to the prosecution evidence above referred to and which by itself, in our opinion, is sufficient to establish the guilt of the accused, there is also the confession statement made by the accused before the Judicial Magistrate P.W. 5. This confession statement has been marked as Ex. 11. It is seen from Ex. 11 that the accused has stated that he got wild on account of the refusal of Thimmappa to remove the bund which had been put up on the roof and that, therefore, he attacked Thimmappa with the sickle. We find that ail the requirements of Section 164 of the Cr.PC. had been complied with and that the Magistrate had satisfied himself before recording the confession, that the accused was making the confession voluntarily.
But the learned Advocate for the appellant has contended that as it is not noted in Ex. 11 that P.W. 5 had disclosed his identity as a Magistrate, to the accused the confession must be held to be inadmissible in evidence. He also contended that the clear evidence given by P.W. 5 to the effect that he had informed the accused that he (P.W. 5) was a Magistrate, should also be excluded from consideration. In support of these contentions, Sri Dayanand sought to rely on the decision in Antappa v. State of Mysore reported atp. 511 of 37 Mys LJ : A.I.R. 1959 Mys 250. It is no doubt true that the head note in the report does, to some extent, give the impression that the subsequent statement by the Magistrate that he had informed the accused that he was a Magistrate is not a sufficient substitute for an actual record made at the time of the recording of the confession. One of us (myself) was a party to that decision and we find after a careful perusal of the same, that this particular portion in the head' note has been set out by the reporter in wider terms than what has been actually stated in the decision. In that case, the Magistrate who recorded the confession had, a short time before, taken part in the exhumation of a corpse in the course of the investigation and it was in the background of that circumstance that the need for the Magistrate to record about his having disclosed his identity to the accused, was considered. What has been stated therein, in that connection, is as follows:
In the present case, it is in no way improbable that the accused person may very well have been under the impression that P.W. 15 was connected with the police as he had taken part in the exhumation of the corpse shortly before. It was very necessary under those circumstances, for P.W. 15 to have made a clear record of his having informed the accused that the accused was in the presence of a Magistrate and that the accused was under no obligation to make any confessional statement. The subsequent statement by P.W. 15 that he had informed the accused that he (P.W. 15) was a Magistrate is not, in our opinion, a sufficient substitute, 'in the circumstances of the case', for an actual record made at that time alone to show that the accused had been so informed,
(The underlining (here into) is by us.) It is, therefore, clear that it was having regard to the circumstances in that case that the oral evidence of the Magistrate to the effect that he had informed the accused about his identity, was found to be not a sufficient substitute for an actual record about his having so informed. We have also perused the decision in Shivabasappa Rayappa v. State 36 Mys LJ 594 : A.I.R. 1959 Mys 47 and the decision in Shantappa Yamanappa Samagar v. State of Mysore 37 Mys LJ 462, which have been referred to in the case of 37 Mys LJ 511 : A.I.R. 1959' Mys 250. While in all those decisions the importance of informing the accused that he is in the presence of a Magistrate has been stressed, nothing has been shown therein which can properly support a contention to the effect that where a Magistrate has not made a record about his having disclosed his identity to the accused, his subsequent oral evidence to that effect must be viewed as being inadmissible.
On the other hand, in all these three cases, the evidence given by the Magistrate has actually been considered and has not been treated as being inadmissible. The desirability of leaving on record the fact that the accused was informed that he was in the presence of a Magistrate, cannot be overemphasized; but, at the same time, it does not mean that where the Magistrate has failed to make such a record, his oral evidence and such other materials as may be available in the record, should not be taken into consideration by the Court for finding out as to whether the accused was really aware of the fact that he was in the presence of a Magistrate.
It is seen from a decision of the Supreme Court in Hera Raj Devilal v. State of Ajmer : 1954CriLJ1313 , the oral evidence of the Magistrate was taken into consideration and accepted for repelling the contention that the Magistrate had not disclosed his identity to the accused when he made the confession statement. It is really a matter for the Court to decide, in the circumstances of each case, whether from the oral evidence of the Magistrate and such other materials as may be available in the record, the conclusion can be reached that the accused was aware of his having been in the presence of a Magistrate, though there may be no note made by the Magistrate to the. effect that he had disclosed his identity to the accused.
In the present case, we find the clear evidence of P.W. 5 the Magistrate, to the effect that he had told the accused that he was before a Magistrate. The accused had been kept in Magisterial custody. It was after the accused had been produced before the Magistrate on more than two occasions, that the confession was subsequently recorded by the Magistrate. The Magistrate concerned, is not an Executive or a Revenue Magistrate, but is a Joint Civil Judge and Judicial Magistrate; we find from the records that when the accused was produced on the 20th of November 1956, P.W. 5 had been engaged in hearing a civil suit and therefore required that the accused should be produced before him on the next day.
On 21-11-1956, which is the date on which Ex. 11 was recorded, the accused was produced before P.W. 5 at 3 O clock in the afternoon which would be during court hours. These circumstances, show that the accused must have been aware of the fact that he was in the presence of a Judicial Officer. Having regard to all these circumstances and accepting the evidence of P.W. 5 in this behalf, we are satisfied that there is no strength in the contention of the accused that he had been under the impression that he was in the presence of a Police Officer when he made this confession We are also satisfied that this confession had been voluntarily made by the accused and that it was recorded by P.W. 5 after compliance with all the requirements of law.
It was contended by Sri Dayananda that even If the confession is held to be voluntarily made, it cannot be said to be true. He points out that while the confession does not disclose that the accused gave a number of blows with the sickle, the medical evidence in the case discloses a number of incised Injuries on the body of the deceased. It is, therefore, argued by him that the version given by the accused in his confession statement, in regard to the attack not being in accord with the medical evidence, must be held to be untrue. We do not find any force in this contention. Merely because, the accused has not stated in his confession statement that he inflicted a number of blows, it does not mean that his confession in regard to his attack itself, must be viewed as being untrue.
We find from a perusal of the original confession statement which is in Kannada that the expression used is 'Kadgolinind aatana Kutfcigeyamele Kadadenu'. This statement does not exclude, more than one blow having been dealt. Further, the number of blows dealt is really a matter of detail, (which need not be viewed as being necessary in a I-confession statement. In the case of Subramania Goundan v. State of Madras, reported in : 1958CriLJ238 , a similar contention was put forward, but was repelled by the Court. It was held in that case that the absence of elaborate, details in a confession cannot brand it as false. Under these circumstances, the contention that the confession statement is untrue, has to be rejected.
6. The oral evidence, in the case is by itself, sufficient to 'sustain the conviction of the accused. The confession statement is voluntary and true and has been corroborated in all material particulars. We do not find any impediment to our accepting the confession statement. We find that the conviction of the appellant by the learned Sessions Judge is quite correct; the learned Sessions Judge, in his discretion, has imposed the lesser penalty of imprisonment for life. We do not find any good grounds to interfere; this appeal fails and is dismissed.
K.S. Hegde, J.
7. I agree.