1. This appeal is against the judgment dated 15-11-52 of Sri R. C. Misra, Sessions Judge of Sambalpur-Sundergarh, convicting ap-pellant Sham Behera under Sections 335 and 201, Penal Code, and sentencing him to undergo rigorous imprisonment for 4 years under the former section and to undergo rigorous imprisonment for 3 months under the latter; and convicting appellant Srinibas Bandasena under Sections 323 and 201, Penal Code and sentencing him to rigorous imprisonment for 6 months under the former section and to rigorous imprisonment for one yearunder the latter. Both the accused persons were charged under Sections 302 and 201, Penal Code.
2. The prosecution case is that on 24-11-51, deceased Kartika Padhan, the Gountia of village Barbank, left home with a torch in hand at about 8 O'clock in the night to fix up labourers to reap his paddy. He not having returned, his youngerson P. W. 5 made an unsuccessful search in the village and sent words to his elder brother P. W. 1, an Agricultural Overseer at Bairakhol. Next morning, P. w. 1 came to the village and the dead body of Kartik was also discovered in a dry well on 25-11-51 by P. W. 6, who had seen the Gountia alive on the previous night. The substantial part of the prosecution case is that the deceased was in love intrigue with Chanchala, P. W. 2, aged 26, who is the wife of Sham Behera (accused 1). Sri-nibas (accused 2) is a close neighbour of Sham. Accused 2 informed of this love intrigue between Chanchala and deceased Gountia to Sham. Sham, in fact, on one previous occasion saw the Gountia having sexual intercourse with Chanchala, but as Sham was obliged to the Gountia in various ways he forgave him with a warning. Chanchala also made a clean confession before her husband that the Gountia had such intercourse with her on several occasions but asked for her husband's unconditional pardon. The husband pardoned with a warning that there should be no further continuance of the intrigue. Subsequently, however, Srinibas informed Sham that the love intrigue was still continuing in spite of his warning, so on the date of occurrence, that is, on 24-11-51, both these accused persons kept themselves concealed in the cowshed belonging to accused Srinibas to watch the movements of the Gountia and Chanchala. It is to be observed that from the said cowshed most of the parts of the house of Sham are visible and the talks going on over there may be over-beard. The Gountia approached Chanchala several times during the day soliciting for an intercourse with her, but she (Chanchala) had persistently refused such requests during day time. But at night when Chanchala went to bed with her children, the Gountia came and had sexual intercourse with her. The two accused persons who had kept themselves concealed at that time in the cowshed nearby overheard the conversation between Chanchala and Gountia and rushed in. While the accused persons were attempting to catch the deceased, the deceased struck against the door-frame and fell down with his face downwards. The two accused persons gave him quite a number of fist blows and the further part of the prosecution case is that accused Sham caused burn injuries on the body of the deceased by a 'Niakhunta', that is, a burning piece of fire-wood. The Gountia died on the spot. Thereafter, the two accused persons, in order to conceal the offence committed by them, carried the dead body and threw it into a dry well nearby from which place the dead body was discovered as mentioned above by P. W. 6. The accused persons pleaded not guilty before the Sessions Judge.
3. Notice was issued by the Bench consisting of Das C. J. and Narsimham J. While admitting the appeal to show cause why the accused persons may not be convicted under Section 302, Penal Code and why the sentences passed on them may not be enhanced even though Das C. J. had expressed some doubt as to whether any conviction under Section 302 was likely to be sustained.
4. On a careful examination of the entire record of the case we are satisfied that the chargeunder Section 302 can never be sustained. According to the evidence of the doctor, he found several contusions and abrasions on the fore-head and other parts of the face and one abrasion on left knee. On opening of the skull, he, however, found that there was a fracture on the floor of the anterior fossa and, in his opinion, it was the head injuries that were the causes of the death. He also found several burn injuries on the body of the deceased. On a careful examination of the evidence, adduced on behalf of the prosecution, as we find there is nothing to establish that any of these accused persons was responsible for the head injuries which were the causes of death df the deceased, the charge under Section 302 must fail. We agree with the learned Sessions Judge, who, after giving his reasons, has come to the finding that the deceased received the fatal head injuries by his fall and that the accused persons had no intention to kill Kartik; on the other hand their only intention was to teach him a fitting lesson.
5. The learned Sessions Judge, in support of his judgment of conviction, has relied firstly upon the statements of the three eye-witnesses, P. W. 2 Chanchala, wife of accused Sham, P. W. 3 Udari, wife of accused Srinibas, and P. W. 4 Bhimsena Dandasena, son of Srinibas; secondly upon the extra-judicial confession made by accused Sham before the village Punchayat, convened on 25-11-51 for the purpose of ascertaining who the culprits were (P. Ws. 7 and 8 are the persons who gave evidence about the extra-judicial confession), thirdly upon the judicial confession recorded by a Magistrate made by accused Sham and implicating the co-accused; and fourthly upon the recovery of the torch-light (M. O. I) which has been proved by the evidence of the son of the deceased as belonging to the deceased from the Bari of accused Sham.
6. As we find, the most important piece of evidence on record, relied upon by the prosecution in support of their case, is the evidence of the two eye-witnesses (P. Ws. 2 and 3) Chanchala and Udari, the wives of Sham and Srinibas. It has to be mentioned here that, while deposing before the Sessions Judge, they completely resiled from the statements made by them before the committing Magistrate. The Sessions Judge, however, under the provisions of Section 288, Criminal P. C., has used their statements before the committing Magistrate as substantive evidence and, relying upon their statements before the committing Magistrate in preference to their statements before him, has come to the finding that the prosecution case has been proved to establish offences under which he has convicted the accused persons.
7. A point has been taken by Mr. G. B. Mohan-ty, appearing on behalf of the appellants, that when the witnesses resiled from their statements made before the committing Court and completely exonerated the accused persons in the Court of the Sessions Judge even though their statements before the committing Court may be substantive evidence under Section 288, Criminal P. C., they alone cannot serve as the basis of the conviction without substantial independent corroboration. The point being of some importance, it is better to lay down a rule, specific as far as possible, for the guidance of the Sessions Courts. It would be pertinent here to quote Section 288 as it stood prior to the amendment of the year 1923 and as it now stands after the amendment. The section stood as follows before the amendment :
'The evidence of a witness duly taken in the presence of the accused before the committingMagistrate may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case.'
The altered section reads :
'The evidence of a witness duly recorded in the presence of the accused under Chap, is, may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872.'
It is clear from the language of the section, as it now stands, that in the discretion of the Sessions Judge the evidence, taken before the committing Court, may be treated as evidence in the case 'for all purposes subject to the provisions of the Indian Evidence Act, The clause 'subject to the provisions of the Indian Evidence Act' manifestly means that it must be relevant and admissible evidence under the provisions of the Indian Evidence Act. But the more important point is whether the evidence taken before the committing Court can be treated as substantive evidence & whether a conviction can be based upon such statement before the committing Magistrate without any cor-robpration. The point has been the subject of judicial interpretation in several decisions of the Patna High Court. The question is very well discussed by Bucknill J. in -- 'Jehal Teli v. Emperor', A. I. R. 1925 Pat. 51 (A). After review of several decisions touching on the point, as arose before the amendment, his Lordship thought it fit to lay down as a principle for guidance in the following language :
'I think, therefore, that the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilised in support of a conviction.'
This principle has been accepted as a right principle in several subsequent Bench decisions of the same Court reported in -- 'Bigna Kumar v. Emperor AIR 1926 Pat. 440 (B) and -- 'Babu Lal V. Emperor', AIR 1947 Pat 144 (C), These decisions do not at all support the contention of Mr. Mohanty that it has got to be laid down as a matter of prin-ciple or even as a rule of prudence that in no cases the statement admissible under the provisions of Section 288, Criminal P. C. can serve as the basis for conviction without independent corroboration. In the Patna case, their Lordships intended to lay down that it was no doubt substantive evidence and was evidence for all purposes. But indeed, the Criminal Procedure Code does not lay down for the guidance of the Courts the amount of weight which should be attached to such evidence. That is a matter which is to be decided by the Court according to the facts and circumstances appearing in each case. It is equally to be observed that when a witness makes two contradictory statements at different times, his evidence has got to be taken with a good deal of caution; but nevertheless it is not a question of principle or of any rule of prudence even, but is a question purely of the weight to be attached to such evidence. If the Sessions Judge finds sufficient reasons as to why he should accept the evidence taken before the committing Magistrate in preference to that taken by himself, he can base his judgment upon the statement admissible under the provisions of Section 288, Criminal P. C., even though the evidence is not corroborated by any other independent evidence. But it will be the incumbent duty of the Sessions Judge to search for convincing reasons from the materials on record why he should prefer the earlier statement to the later. Mr. Mohanty, however, relies upon two other decisions reported in -- 'Parita v. Emperor', AIR 1946 Lah 48 (D) and 'In re Chinna Papiah', AIR 1940 Mad 136 (E). I have gone through both the decisions very carefully and none of them discussed the principle as indicated above nor have they referred to any of the decisions of the Patna High Court fully discussing the point. In the Lahore case, their Lordships observed that in a criminal trial, the mere fact that a witness resiled from his previous statement and completely exonerated the accused in the statement made by him at the trial, makes it incumbent upon the Court not to act upon his evidence unless it is corroborated by any other independent evidence. With great respect, from the above observation, I do not understand that a general principle has been laid down that a statement admissible under Section 288 does require corroboration in all cases as a matter of principle or as a rule of prudence. Exactly a similar passing observation appears also in the Madras case. In those cases, their Lordships have discussed the evidence taken before the Magistrate and the Sessions Judge and the reason for not accepting the evidence taken by the Magistrate. To me it appears the decisions are weighed more by the reasons for not accepting the statement before the committing Magistrate rather than by the proposition relied upon by Mr. Mohanty.
8. In this view of the matter, therefore, we are-inclined to agree with the Sessions Judge in accepting the statements made by P. Ws. 2 and 3 (Chan-chala and Udari) before the committing Court in preference to those made by them in the Sessions Court for very convincing reasons appearing in the case. The two witnesses are the wives of the two accused. There can possibly be no other reasons why they should be making such elaborate and cogent statements before the committing Court incriminating and implicating their own husbands in the occurrence as alleged by the prosecution. There is absolutely no material to suggest that there was any pressure or inducement on the part of the Police to which they would yield in spite of the position that their husbands are charged under Section 302, Penal Code. The reason why they prevaricated at the later stage is manifest that by lapse of time they have been able to realise the far-reaching consequences of their statements and now they make a serious attempt to save their own husbands from the charges.
9. Apart from the above considerations, in the present case, however, we find substantial corroboration of the statements of the two eye-witnesses by the three very important items of evidence. The extra-judicial confession made by accused I (Sham) is attempted to be proved from the evidence of P. Ws. 7 & 8 who belong to the same village. Their evidence is to the effect that soon after the occurrence a Punchayat of the village was con- vened for the purpose of ascertaining who the real culprits were and when the villagers were seriously attempting to so ascertain, accused Sham volunteered and made a confession that he and the other co-accused Srinibas killed the Gountia. Manifestly, Indeed, from the evidence, as it appears it has not been Droved that they are responsible for the death of the Gountia. But the confession is significant to this extent that the two accused were certainly responsible for the occurrence which had taken place on 24-11-1951. Mr. Mohanry contends that this confessional statement is not admissible under the provisions of Section 24, Evidence Act. The contention has no force inasmuch as there are no materials that there was an inducement, threat or promise nor is there any material that such inducement, threat or promise came from any person in authority.
The other item of important evidence is the Judicial confession made by accused Sham before the committing Magistrate implicating the co-accused also to the some extent. On a perusal of the confessional statement made by Sham, we are perfectly satisfied that the statement was absolutely voluntary. We are impressed that in the narration of the antecedents leading upto the incident itself which culminated in the death of Kartik and the occurrence itself and how they disposed of the dead body, the confessional statement is in substantial consonance with the statements made by these two eye-witnesses (P. Ws. 2 and 3) even though in the cqniessional statement there is no reference to the infliction of injuries by accused Sham with the help of a burning fire-wood. The statements of P. Ws. 2 and 3 before the committing Court standi corroborated by another feature also, i.e., the discovery from the Bari of accused Sham of the torch (M. O. I) which has been proved by the son of the deceased Gountia as belonging to the Gountia. On a careful consideration of the above features, therefore, we are satisfied that the occurrence as alleged by the prosecution has been satisfactorily proved except that any of the accused is responsible for the death of Kartik.
10. The question that now comes for determination is under what section or sections each of the accused persons is guilty. The learned Sessions Judge has convicted accused Sham under Section 335, Pertal Code on the finding that he had inflicted the grievous hurt under grave and sudden provocation. In our view, there was no sudden provocation for the occurrence. It is clear that both the accused persons were concealing themselves in the adjacent cowshed even during afternoon. At the time of occurrence also they concealed themselves in the said cowshed and overheard the conversation between the two, that is, the deceased and Chanchala. They were, as it were, waiting for the opportunity for teaching Kartik a fitting lesson. If they so intended they could have averted the intercourse in that night by timely intervention. In our view, therefore, there was no sudden provocation; but nevertheless the injuries inflicted by Sham with the help of a burning fire-wood cannot be considered as a grievous hurt. The observation of the learned lower Court 'According to medical opinion, the burns, though grievous, could have caused only shock but could not have caused death by itself', is incorrect. We have gone through the evidence of the doctor carefully. Nowhere he says that the burn injuries are grievous. The burn injuries do not come within the specific items of the Injuries mentioned in the definition of grievous hurt; nor do they endanger life. The conviction of Sham under Section 335 cannot, therefore, be sustained.
11. It has been contended by Mr. Mohanty that in any view it has got to be found that the prosecution has not been able to establish that Sham inflicted injuries with the help of a burning firewood inasmuch as the two important eye-witnesses, that is, P. Ws. 2 and 3, do not mention that part of the incident in their statements under Section 164, Criminal P. C.; but each of these two witnesses, has so stated before the committing Magistrate that Sham inflicted burn injuries on Kartik with the help of a burning fire-wood from the fire which, was in the adjacent-cowshed. In the doctor's evidence also we get it that there were several patches, of wounds like burn ones with healthy skin intervening in between, covering an area of the left side of the back from the left shoulder down to the lower part of the back. They were greenish. On dissection, the doctor found that the skin had burnt upto the subcutaneous tissues. The intervening tissues between the patches were swollen and red. The tissues underlying were found congested. On a consideration of the feature that, the evidence of the eye-witnesses before the committing Court regarding the burn injuries stands. sufficiently corroborated by the doctor's evidence, we believe that part of the prosecution case that Sham inflicted burn injuries with the help of a burning fire-wood. The offence, therefore, committed by Sham is one under Section 324, Penal Code, instead of one under Section 335 as found by the learned lower Court. The other accused, Srinibas, having dealt only fist blows, is guilty under Section 323, Penal Code. Coming to charge under Section 201, Penal Code, we agree with the learned Court below in finding that the two accused persons removed the dead body and threw it into the well. In this connexion, we have relied upon the testimonies of P. Ws, 2 and 3, as corroborated by the evidence of P. W. 6, who discovered the dead body from the well. The intention of the accused persons in throwing the dead body into the well was manifestly to screen his companion as well as him-self from the rigorous punishment and in this view, therefore, each accused is guilty under Section 201. Sham wanted to screen his co-accused Srinibas from the rigorous punishment under Section 323 : and Srinibas wanted to screen his co-accused Sham from the rigorous punishment under Section 324.
12. Now coming to the question of sentence, we have found Sham guilty under Section 324, Penal Code. The maximum punishment provided under the section is three years rigorous imprisonment. But in view of the fact that the deceased had almost continuous adulterous connexion with the wife of Sham and Sham, in the first instance, showed restraint in forgiving both Ka-rtik and Chanchala, and on the date of occurrence also Kartik committed adultery in spite of the repeated refusals of Chanchala during the whole day, in our opinion, therefore, one year rigorous imprisonment will be adequate to meet the ends of justice. We agree with the Sessions Judge in the matter of sentence passed under Section 201, Penal Code that Sham is to undergo rigorous imprisonment for three months on that count. Accused Srinibas is sentenced to rigorous-imprisonment for six months under Section 323 as ordered by the Sessions Judge; but under Section 201, Penal Code in our opinion, it is proper to reduce the sentence to nine (9) months rigorous imprisonment instead of one year as ordered by the Sessions Judge.
13. In the result, therefore, accused Sham stands convicted under Section 324, Penal Code and is sentenced to undergo rigorous imprisonment for one year; he is also convicted under Section 201, Penal Code and is sentenced to rigorous imprisonment for 'three months; accused Srinibas is convicted under Section 323, Penal Code and is sentenced to undergo rigorous imprisonment for six months; he is also convicted under Section 201, Penal Code and is sentenced to undergo rigorous imprisonment for nine months. The sentences of each of the accused persons on each count will run concurrently.
14. The appeal is allowed in part with modifications as indicated above.
15. I agree.