R.N. Misra, J.
1. The Reference is Under Section 366(1) of the Cr.PC 1973, for confirmation of the sentence of death imposed on Gouranga Sahu by the learned Sessions Judge of Dhenkanal for the offence punishable Under Section 302, I.P.C. Criminal Appeal No. 47 of 1977 is by the said Gouranga against his conviction and sentence while Criminal Appeal No. 48 of 1977 is by the co-accused Prahallad Sahu alias Choudhary against his conviction Under Section 302/109, IPC and sentence of rigorous imprisonment for life. All the three matters have been heard together and are being disposed of by this common judgment.
2. Briefy stated, the prosecution case is : The deceased Kartik Chandra Mohanty was the Sub-Inspector of Police attached to the Bantalo Police Station in the Angul area of the district of Dhenkanal. Appel-lant Prafeallad Choudhury happens to be am influential person of the locality. He had) beem arrested on more than one occasion by the deceased police officer in execution of warrants in certificate cases amidi their relationship was strained. Appellant Prahaillad was in the habit of making complaints against the deceased to- the admrainiistrartive superiors. He instigated Goeranga, a relation of his, to commit murder of the deceased. On 19th September, 1974, on the occasion of Ganesh Chaturthi, a Jatra was being held around the temple of the deity Kalapata Thakuraami located not far away from the village. The deceased along with a young son of his aged about three years had gong to the temple on a motor bicycle and after having darshan of the deity, he had come out and leaning on his motor bicycle he was engaged in talking with some youBg naem of the locality about the prospect of locating a football field in the neighbourhood. Suddenly appellant Gou-raraga came from behind with an iron pipe (M.O.I.) and dealt a severe blow on the head of the deceased, as a result of which the deceased fell on the ground. Prosecution alleged that the assailant gave several successive severe strokes on his head until he was pushed aside by P.W. 5. Gouranga ran away from the spot with M. O. I. in his hand and concealed himself in a Kothaghar of a neighbouring village from where he was ultimately apprehended by a police party.
The deceased bled profusely from his head and while lying unconscious was brought to the local dispensary where he was given first-aid. Thereafter the Assis-that Sub-Inspector of Police (P.W. 32) managed to send him to the Angul hospital. The First Information Report (Ext. 24) was recorded by P.W. 32 on his own information at 5.05 P.M. At 5.45 P:M., the deceased succumbed to his injuries in the hospital. The Circle Inspector of Police (P.W. 33) arrived at the spot around 7 P.M. After holding inquest over the dead body at Angul Hospital, investigation followed and it having transpired that appellant Gouranga had committed the offence on the instigation of appellant Prahallad, the two accused persons were committed to stand their trial for the offence Under Section 302/109, Indian Penal Code.
3. Appellant Gouranga admitted to have assaulted the deceased on his head with an iron pipe. He, however, pleaded that he did so being instigated by Prahallad, the co-accused. Gouranga being poor and illiterate had completely been overpowered by Prahallad and under his instigation, allurement of money and maintenance for the family, he had assaulted the deceased. Gouranga confessed his guilt under Ext. 22 recorded by a Magistrate (P.W. 29) and therein he had supported his plea of instigation by Prahallad. Prahallad denied his involvement in the matter and contended that he had no association with Gouranga in the killing of the police officer. Defence led no evidence.
4. Prosecution examined 33 witnesses in all. Of them, P.Ws. 1, 2, 3, 4 and 5 are said to be eye-witnesses. P.W. 10 came to the spot immediately after. P.Ws. 6 and 14 are the police constables who appre--hended appellant Gouranga. P.Ws. 7, 1L and 13 were examined to support the plea of extrajudicial confession by Gouranga. Medical evidence came from P.Ws. 8, 9 and 27-P.W. 8 conducted the post-mortem examination, P.W. 9 was the Pharmacist and P.W. 27 was the doctor of the Primary Health Centre at Bantala where first-aid had been given to the deceased. P.W. 27 also claims to have accompanied the deceased upto the Angul Hospital. P.Ws. 12, 17 and 18 were witnesses in support of the prosecution plea of preexisting animosity between the parties which supplied the motive for the crime. P.W. 15 was a witness to the seizure of M.O.I, while P.W. 16 was the Constable who guarded the dead body. P.W. 19 was an attesting witness to the seizure under Exts. 11 and 12. P.W. 20, a Sub-Inspector of Schools, was called in to support the story of negotiation of sale of land but he turned hostile. P.W. 23 was the Additional Tahsildar of Angul at the relevant time and he was examined in connection with the arrest of the accused persons in certificate proceedings. P.W. 26 is the mother of Gouranga. P.Ws. 21, 22 24, 25, 28, 32 and 33 are police officers who are connected with the investigation of the case. P.W. 29 is the Sub-Divisional Judicial Magistrate who recorded the confessional statement (Ext. 22). P.W. 30 is the Amin who prepared the spot map and P.W. 31 was the Bench Clerk of the Magistrate.
5. The learned Sessions Judge on an analysis of the evidence came to accept the prosecution case that Prahallad was the instigator and Gouranga was the assailant. Accordingly, he convicted Gouranga under Section 302 of the I.P.C. and sen- tenced him to the punishment of death subject to confirmation by this Court and convicted Prahallad Under Section 302/109, IPC and sentenced him to rigorous imprisonment for life.
6. It is settled position in law that for disposing of a reference Under Section 366(1) of the Code of Criminal Procedure, it is the duty of the referee Court to deal with the entire evidence and make its own appraisal of the material and come to an independent conclusion. As we propose to do that, it is indeed unnecessary to refer at length to the judgment of the learned trial judge and the comments advanced against the findings.
7. We shall first deal with the charge against Gouranga. The evidence against him may be broadly divided under the following heads for convenient treatment:-
(i) Evidence of eye-witnesses who saw him assaulting the deceased;
(ii) Judicial confession;
(iii) Extra-judicial confession;
(iv) Circumstantial evidence; and
(v) Statement in the trial court in course of his examination under Section 313 of the Cr.PC
(After discussing the evidence of eyewitnesses 1 to 5 the judgment proceeded.) Mr. Mohanty next contended that these witnesses have been tutored by the police to depose in support of an inherently improbable story. If Gouranga intended to kill the deceased, he would not have chosen the time and place when and where the occurrence is said to have taken place. The incident took place in broad day-light and at a place where a huge crowd had gathered for the mela. This again by itself is no ground to throw out the testimony of so many witnesses who had absolutely no reason to perjure themselves. As we shall indicate later, Gouranga had run to the place under instigation and he was certainly oblivious of the consequences of his acts. The learned Sessions Judge who had recorded the evidence was impressed by the evidence of these witnesses and we indeed see no ground to differ from his conclusion on this score.
The next important piece of evidence is the judicial confession (Ext. 22). Gouranga was taken into custody within an hour of the incident. He was once sent up to the court for recording of his confession, but he had declined to confess. Subsequently the Sub-Divisional Judicial Magistrate of Angul received a petition from Gouranga while he was in jail custody (vide Ext. 21) wherein, he had stated that when ara 21-9-1974, he had been produced by the police before the Court, he was not in a position to make any statement and $ he is produced before the court, the would make a confession. This application is dated 6-10-1974 and was forwarded to the court an 7-10-1974. On .8-10-1974, the accused was produced before the Magistrate (P.W. 29). He was given one hour's time for reflection. The Magistrate explained to him that he was a Magistrate and if the accused made a confession, it might be utilised against him. He further explained to him that he was not bound to make a statement and if he had been threatened or induced to make a statement, he need not make it. After being satisfied that there was no inducement or threat or promise and on being further satisfied that the confession was being made voluntarily after due reflection, the Magistrate recorded the confession. The learned Magistrate has recorded the several questions he put to the confessing accused in order to satisfy himself that the statement he was going to make was voluntary. It was commented by counsel for Gouranga that the confession had been recorded in the verandah of the court building which is an open place and if a police officer moved about at a distance, he would still be visible to the confessing accused. Thus it must be found that the confession was recorded in presence of a police officer. This reasoning does not require any consideration because in the absence of positive material that a police officer was in the vicinity at the time the confession was recorded and on the mere supposition that one could be there, we are not prepared to throw out the confession. It was further commented that adequate time for reflection had not been given. There is sufficient material on record to show that the confessing accused was no more in police custody and after several days of the confessing accused being in jail custody, he had been brought before the Magistrate for the purpose of recording confession. Mr. Mohanty for appellant Gouranga had further contended that Ext. 21, the application of the confessing accused to the Magistrate, must be found to have been written out by the Investigating Officer. That fact was suggested to the Magistrate (PW 26) and he did not deny that it had not been written by the Investigating Officer. We are surprised that Mr. Mohanty thought it appropriate to raise such an argument. The Invests gating Officer himself was before the court as P.W. 33 and in cross-examination has stated:
It is not a fact that I caused a petition to the S.D.J.M. purporting to be of accused Gouranga so as to confess and not that we brought the accused Gouranga in a jeep with the help of other police to the court premises on 8-10-74 and not that we all remained under the banyan tree ....
Following the dictum of the Full Bench 'decision of this Court in the case of Shanti alias Satyabhama Devi v. State (Criminal Appeals Nos. 212 of 1974 and 24 of 1975) disposed of on 4th May, 1977: (1977 Cri LJ 2053) (Orissa) (FB), we are satisfied that the confession is true and voluntary and does not suffer from any lacuna which would make it inadmissible. The material portion of the confession reads thus:
Prahallad Choudhury sold land to Maheswar Sahu. That land is adjoining mine. He cancelled the sale deed. Pra-hallad Choudhury told me that Sub-Inspector Kartika Chandra Mohanty arrested him and me on several occasions and asked me to kill Kartika Mohanty (murdered). He also told me that he would spend even ten thousand rupees or even fifteen thousand rupees and save me.
On the Ganesh Chaturdashi day, I asked Prahallad Choudhury if Kartika Mohanty attended the grama puja. Prahallad Choudhury told me that Kartika Chandra Mohanty has gone to attend puja and that was good opportunity and asked me to kill him (Jaikiri Taku Maro). I went home and brought an iron rod to attend the Grama Puja. I told my mother that I am going to kill the Sub-Inspector K. C. Mohanty on the instigation of Prahallad Choudhury and asked my mother to take care of my house and children. My mother dissuaded me but I did not pay any heed to her and went to the Grama Puja and saw the Sub-Inspector talking to three- or four persons standing near a motor cycle. I went behind him and assaulted the Sub-Inspector with the iron rod. I then went to my village and from there I went away to Garh Taila.
This confession is undoubtedly inculpatory and is thus admissible to establish the charge, for which appellant Gouranga is being tried. (See Nishi Kant Jha v. State of Bihar, : 1969CriLJ671 .
At the trial, this appellant has also not retracted from his confession. In his examination Under Section 313 of the Cr.PC 1973, he has admitted that he inflicted two or three blows on the deceased with M. O. I. It is true that to one of the questions, the appellant has answered that he had been tutored by the police and had been promised lenient treatment which led him to make the confessional statement. Reading the confessional statement and the statement recorded by the learned Sessions Judge Under Section 313 of the Code, we do not find any material difference. In the confessional statement, the appellant had not indicated the number of blows and in his examination Under Section 313 Cr.PC he admitted to have given two or three strokes. That being the position, there is no truth in the statement of the appellant that he had been tutored and/or lured by the police to confess. What he had confessed he also substantially accepts in his examination in the court. The confessional statement is thus corroborated by the appellant himself in his examination before the trial court.
8. The evidence of P.Ws. 7, 11 and 13 given in proof of the extra-judicial confessions by Gouranga may now be considered. P.W. 7 is a bidi maker of village Garh Taila from where Gouranga admits in his confessional statement to have been arrested. This witness stated that while he and some others were sitting on the verandah of a co-villager, appellant came running and stated that he had committed a murder and was looking for shelter. The people sitting there including the witness directed him to go to the Kothghar of the village. Soon thereafter the police party arrived and arrested him.
P.Ws. 11 and 13 are residents of village Sankhapur which is stated to be about two miles from the [place of occurrence. Both these witnesses are opera masters. It is said that they had come to enquire from one Bhramar Das, the village opera master, to find out as to what performance the villagers were staging on that day at the Jatra. On their way, these witnesses had occasion to pass by the side of Prahallad's house and there they found appellant Gouranga with M.O.I in his hand reporting to Prahallad that he had murdered the Sub-Inspector and now he should be given appropriate protection.
Mr. Mohanty has contended that all these three witnesses should be disbelieved. It is claimed that P.W. 7's evidence is unnatural and P.Ws. It and 13 had indeed no business to pass by the side of the house of Prahallad as they could have reached the house of Bhramar by another straight route. P.Ws. 11 and 13, it is further claimed, had no justification to return to their village immediately after hearing the news of the murder without contacting Bhramar and there was discrepancy in their evidence as to whether they had gone to the hospital to see the deceased. Learned Government Advocate has contended that these two witnesses are wholly independent and there is no justification to discard their testimony on the grounds indicated above. It is quite possible that the witnesses did not go to Bhramar because once they were told that the local police officer had been murdered, they were afraid that no Jatra would any more be performed that night, If the defence wanted the reason as to why these witnesses did not think of contacting Bhramar, the witnesses should have been asked about it and in the absence of cross-examination on that score, the witnesses should not be discarded. We are inclined to agree with the approach of the learned Government Advocate. We would accordingly hold that there is substantial evidence to support the prosecution story of extra-judicial confession.
P.W. 36 is the mother of appellant Gouranga. She has categorically stated that on the date of occurrence, Gouranga went out with an iron pipe and when she accosted him, he replied that he was going to kill the police officer at the instigation of Prahallad. She tried to dissuade him, but he did not listen and went away. Ever since then Gouranga has not returned home. She is an elderly lady of about 65 years of age. It was suggested to her that she was under the influence of the police and she had been prevailed upon to depose in the aforesaid manner so that her son may be leniently treated. She has categorically denied that she was moving with the police and she was now being looked after by her nephew. It is not the defence case that P.W. 26 and appellant were not pulling on well. In fact, the mother's previous conduct is clearly indicative of how anxious and worried she was in not seeing her son. When she had been sent earlier by the police to the Magistrate for recording her statement Under Section 164 of the Cr. P.C she had declined to make any statement until she saw her son alive. Reading the deposition of P.W. 26 and particularly her cross-examination, we are not in a posi- tion to hold that the witness was a rustic lady not understanding the implication of her evidence. In the natural setting, we do not think P.W. 26 would have deposed falsely to implicate her son in an offence which might ultimately take away his life. The evidence of P.W. 26 had rightly been relied upon by the learned Sessions Judge in coming to his conclusion.
The direct evidence of the eye witnesses is thus clearly corroboratd by the confession, the extra-judicial confession, the statement at the trial of the appellant himself and the circumstantial evidence. The prosecution case against the appellant Gouranga has thus been proved to the hilt and there is no scope to take a different view.
9. We may now deal with the case against Prahallad. Prosecution has alleged that Gouranga murdered the deceased at the instigation of Prahallad, while Prahallad's defence is that he had no association with Gouranga in the matter and he knows nothing about it.
Prosecution relies on the following materials so far as LPrahallad's complicitj is concerned :-
(i) evidence of P. Ws. 11, 13 and 26;
(ii) presence of motive;
(iii) confession of the co-accused (Ext. 22);
(iv) the statement of Prahallad in his examination Under Section 313, Code of Criminal Procedure;
(v) the station diary entries in Exts. 27, 28 and 32; and
(vi) circumstantial evidence. P.Ws. 11 and 13, as we have already noticed, are the two opera masters from village Sankhapur. two miles away from Bantala village. P.W. 11 has deposed:-.I passed through the house ofaccused Prahallad Choudhury. I saw him standing in the front verandah of his house. I saw accused Gouranga Sahu coming there with an iron pipe in his hand and he told accused Prahallad that according to his saying he had killed the S. I. Kartika Mohanty and now he should be saved and what should he do. Accused Prahallad replied that accused Gouranga should seek his own way and accused Gouranga went away with the iron pipe in his hand....P.W. 13 has said:-.We were passing through the lane of Prahallad Choudhry accused. It was then about 4 P.M. There accused Gouranga Sahu soon arrived and ques- tioned accused Prahallad Choudhury who was standing on the verandah as to what he is to do now. As per his instructions he had finished (killed) the S. L Kartika Mohanty and that accused Gouranga was holding an iron pipe. Accused Prahallad replied that he should see his own way. Then accused Gouranga went away with that pipe, ....Counsel for Prahallad has argued that the evidence of these two witnesses is against natural human conduct. If Gouranga had indeed taken the life of the Sub-Inspector at the instance of Prahallad, he would not have quietly gone away from Prahallad's place when Prahallad advised him that he should now find his own way. In ordinary course, Gouranga was expected to raise a row and shout at Prahallad for his indifferent conduct. It is further argued that even accepting the evidence of these, two witnesses, they do not implicate Prahallad with any overt or positive act. Gouranga's statement may amount to a confession of his own. But that certainly would not implicate Prahallad. It is next contended with reference to the spot map prepared by P.W. 30 that the houses of Prahallad and Gouranga are adjacent and, therefore, the fact that Gouranga had come upto a point when P.Ws. 11 and 13 saw him is of no material consequence inasmuch as Gouranga may have returned to his own house only. None of these three contentions appeals to us.
We must first indicate that these are independent witnesses and the general criticism offered by Prahallad's counsel that police made an attempt to implicate Prahallad as the villain of the piece as we shall presently show has no basis. These two witnesses being independent and disinterested have been accepted by the learned Sessions Judge to be dependable and we also rely on their evidence. Learned Government Advocate has rightly contended that after Gouranga had given the blows on the head of the deceased, in natural course he ran to acquaint Prahallad under whose persuasion he had done the act. Gouranga was looking for a place to hide himself because he apprehended arrest. That was no time to raise a dispute with Prahallad and, therefore, it is not unnatural that he ran away to seek refuge somewhere. Undoubtedly, the houses of Prahallad and Gouranga are adjacent, but there is no material to show that Gouranga was standing in front of his own house when P.Ws. 11 and 13 saw him, The clear evi- dence of these two witnesses is that Prahallad was standing in front of th verandah of his house and Gouranga was addressing him. We propose to deal with the admissibility of the confession of the co-accused separately, but it is sufficient to indicate here that even if the confession may not be used against Prahallad, the fact that Prahallad was standing on his front verandah and Gouranga had come there and was making a confession of his own act, is a circumstance available to be used against Prahallad. What Prahallad stated in presence of these witnesses is also admissible as direct evidence. If Prahallad had no complicity in the matter, he would certainly have been surprised being a local leader that Gouranga had killed the Sub-Inspector' of Police against whom he himself had raised a tirade since 1973. He did nothing and remained content by advising Gouranga to go his way. His conduct is thus unnatural.
P.W. 26, as already noted, is Gouranga's mother. learned counsel for Prahallad reiterated their contention that the old lady was absolutely under police control and police had tempted her to depose by implicating Prahallad so that her son may be saved from the gallows. There is n313 of the Code. He relies upon the decision of the Supreme Court in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat : AIR1953SC468 , where it was pointed out that the circumstance of absconding could not be used against the accused without the fact being asked to him. Here we find that the Sessions Judge did put the evidence of P.W. 26 to the witness though not very specifically. The appellant was represented by a number of senior advocates and had not chosen to cross-examine the witness on this point. We can- not hold in the circumstances that there has been any prejudice. P.W. 26's evidence, therefore, goes to establish that Prahallad had been tutoring Gouranga at intervals to the effect that Gouranga might kill the Sub-Inspector of Police. It is admitted that Prahallad had been arrested by the deceased. It is established that Gouranga had also been arrested. It is natural, therefore, as deposed by P.W. 26 that Prahallad started negotiating with Gouranga when both of them gathered the impression of being harassed by the Police Officer. It may be recalled that the two apart from being neighbours are relations too. This part of the evidence, therefore, is cogent and acceptable.
That Prahallad had strong motive to harm the deceased has been established beyond reasonable doubt. The fact that he had been arrested on more than one occasion by the deceased has been established by evidence. That Prahallad had been systematically making complaints against the deceased has been established by the prosecution and is also admitted in Prahallad's own statement Under Section 313 of the Cr.PC There is evidence also to support the prosecution allegation that Prahallad had threatened to see the deceased. We may here refer to four station diary entries marked as Exts. 27, 28, 30 and 32. Ext. 27 had been recorded by the deceased on 26-11-1973 and ran thus:-
I effected arrest of Prahallad Chou-dhury in C.P. Case No. 52/60-61 on the strength of N.B.W. issued by certificate officer S.D.O. & M.F.C., Angul, while I effected arrest of Pahali Choudhury he threatened in grumbling to see me and my staff in future by filing petition and cases. I noted it for future.Ext. 28 had also been recorded by the deceased on 27-11-1973 and the contents
Opened the diary at P.S.
In the Bontala Bus Stand while I am moving I found the warrantee Prahaliad Choudhury and I called him near me and lead him to the P.S.
I showed him the file amount of Rs. 1000/- and the body warrant (N.B.W.) in C.P. Case 52/60 & 61 and he being dumbfounded told that he did not know all these and he will contest the court. I forwarded him to court with the escort party and he threatened me to see and will effect my transfer within the 30th December. As he had escaped in as identical case I sent him to court in proper custody(t) the escort party.
Ext. 32 which too was entered by the deceased on 26-8-1974 (less than four weeks before the incident) was to the following effect:-
While being escorted Prahallad Choudhury did not accept the copy of warrant and threatened to see to the P.S. staff ... S.D. for reference.These are statements recorded by the deceased in due course of his official business and would certainly be admissible Under Section 32(2) of the Evidence Act. A bare reading of these entries would show the extent of animosity between Prahallad and the police officer.
Ext. 30 is a station diary given by P.W. 18. In paragraph 2 of his deposition this witness stated that he had informed at the Police Station what he had heard when Prahallad directed Gouranga and the witness was also cross-examined with reference to his evidence on this point. Though P.W. 18 did not formally exhibit the entry, since he has been examined and the defence had adequate opportunity to cross-examine the informant, we are prepared to rely upon the document. Ext. 30 runs thus :-
Maheshwar Sahu, s/o Nimai Sahu of Bantala Bazar came to P. S. with Parkhit Karof Manapur and reported that today at about 4.30 P.M. Pahali Chaudhury is instigating to Gouranga Sahu of Bantala to behead Maheswar Sahu and take his head to Angul Court and produce there. Parakhit Kar also supported this report on verification vide P.S. Case No. 13/74. Gour Sahu was forwarded in custody as land dispute and murder is threatening at the spot. Dates under collection to pro- secute the parties Under Section 207, Cr.P.C. S. D. for reference.It certainly implicates Prahallad. His counsel has argued that we may not rely upon P. W. 18 as he is an interested witness. If at all, P. W. 18 would be expected to support the defence as he has purchased the land from P. W. 26, Gouranga's mother after the incident.
In these circumstances, we are satisfied that the relationship between Prahallad and the deceased had been strained enough and the existence of such relationship highly probabilises the prosecution allegation that Prahallad set up Gouranga to commit the heinous offence. Gouranga by himself did not have that amount of animosity against the deceased as Prahallad. Left to himself, as learned Government Advocate has rightly argued, Gouranga may not have been bold enough to raise his hands against the police officer. The evidences of P. Ws. 11, 13 and 26, as discussed above in the background of the motive which we have referred to above, clearly lead us to hold that it was Prahallad who had instigated the incident and had set up Gouranga to commit the crime.
learned counsel for Frahallad strenuously contended that we may not deal with this case as any other relating to a charge of murder. The police officer having been murdered, the entire police machinery has combined. The local police staff had grievance against Prahallad. They found it handy to kill two birds with one stone and, therefore, implicated Prahallad so that he could be withdrawn from the scene once for all and their enemy would vanish.
Reliance is placed on the evidence of P. W. 2 who has said that an armed police force arrived in the P.S. that very night and villagers had fear of torture. P. W. 3 also said that 25 or 30 armed police were at the Police Station. It is in evidence that some women residents of the village went away from the village apprehending danger. The presence of the armed police, the visit of the Deputy Superintendent of Police to the village or the stay of the Intelligence Inspector for three days are not features by themselves from which we should presume that a reign of terror prevailed. It was natural for the police to protect their own position and when their officer had been brutally murdered, they took care to investigate the case with the care and attention that normally is not bestowed though due. This would not vitiate the investigation or make the prosecution case open to doubt or being discarded.
We may now consider the confessional statement (Ext. 22) of Gouranga and its use against Prahallad. In the confessional statement (Ext. 22) Gouranga has clearly stated that he had been instigated by Prahallad to commit the murder. It is contended by learned counsel appearing for Prahallad that such confession of a co-accused even though inculpatory is not available to be used against him. Reliance has been placed on the decision of the Supreme Court in the case of Haricharan Kurmi v. State of Bihar : 1964CriLJ344 . The learned Chief Justice speaking for the Court observed (at pp. 1187, 1188):-The question about the part which a confession made by a co-accused person can play in a criminal trial has to be determined in the light of the provisions of Section 30 of the Act (Evidence Act). Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When Section 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the con- fession mentioned in Section 30 is not evidence Under Section 3 of the Act.... As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.... It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 30 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence....
In our view assurance is available to the prosecution case against Prahallad from the confessional statement of the co-accused Gouranga and we hold on these materials that prosecution has successfully established its case against Prahallad too.
10. The next question for consideration is as to what would be the appropriate punishment. The learned Sessions Judge had inflicted the punishment of death on Gouranga and rigorous imprisonment for life on Prahallad. When the appeal came up to be heard, we did not approve of infliction of a lighter punishment on Prahallad when it had been found by the trial court that it was he who was the brain behind the incident. Therefore, notice of enhancement of sentence so far as Prahallad is concerned from one of imprisonment for life to death had been given.
11. It has been contended by counsel for the accused persons that the learned Sessions Judge did not act prudently in hearing the question of sentence on the same day as he pronounced the judgment holding them guilty. Reliance is placed on the decision of Santa Singh v. The State of Punjab AIR 1976. S. C. 2386 : 1976 Cri. LJ 1875, where it was observed (at pp. 2389, 2390):
But, on the interpretation of Section 235(2), another question arises and that is, what is the meaning and content of the words 'hear the accused.' Does it mean merely that the accused has to be given an opportunity to make his submissions or he can also produce material bearing on sentence which has so far not come before the court? Can he lead further evidence relating to the question of sentence or is the hearing to be confined only to oral submissions? That depends on the interpretation to be placed on the word 'hear'. Now, the word 'hear' has no fixed rigid connotation. It can bear either of the two rival meanings depending on the context in which it occurs. It is a well settled rule of interpretation, hallowed by time and sanctified by authority, that the meaning of an ordinary word is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which it is used and the object which is intended to be attained. It was Mr. Justice Holmes who pointed out in his inimitable style that
a word is not a crystal, transparent and unchanged: it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.
Here, in this provision, the word 'hear' has been used to give an opportunity to the accused to place before the court various circumstances bearing on the sentence to be passed against him. Modern penology, as pointed out by this Court in Ediga Annamma v. State of Andhra Pradesh, : 1974CriLJ683 'regards crime and criminal as equally material when the right sentence has to be picked out'. It turns the focus not only on the crime,
but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative a the deterrent element. It is necessary for this purpose that 'facts of a social and personal nature, sometimes altogether irrelevant, if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined'. We have set out a large number of factors which go into the alchemy which ultimately produces an appropriate sentence and full and adequate material relating to these factors would have to be brought before the court in order to enable the court to pass an appropriate sentence. This material may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hearing on the question of sentence would be rendered devoid of all meaning and content and it would become an idle formality if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court. This was also the opinion expressed by the Law Commission in its Forty-Eighth Report where it was stated that 'the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process'. The Law Commission strongly recommended that 'if a request is made in that behalf by either the prosecution or the accused, an opportunity for leading evidence on the question' of sentence 'should be given'. We are, therefore, of the view that the hearing contemplated by Section 235(2) (Code of Criminal Procedure) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings. The claim of due and proper hearing would have to be harmonised with the requirement of expeditious disposal of proceedings.
Reliance has also been placed on the case of Narpal Singh v. State of Haryana, : 1977CriLJ642 , where it was stated (at pp. G53, 654 of Cri. LJ):-
This, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after delivering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately. In Santa Singh v. State of Punjab, : 1976CriLJ1875 this Court has taken the view that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accused en the question of sentence and give him an opportunity to lead evidence which may also be allowed to be rebutted by the prosecution. This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh can not be sustained although the convictions recorded against them are confirmed by us and will not be re-opened under any circumstance whatsoever.
Undoubtedly the learned Sessions Judge has heard the advocates of the accused persons in the afternoon of 2-3-1977 (the same day as delivery of judgment) on the question of sentence. But we see no justification to remand the matter to the trial court. Under the Indian Penal Code, the sentences provided for the offence Under Section 302 are imprisonment for life or death. The incident is of the year 1974 and almost three years are over. Gouranga has already been suffering the agony of sentence of death. The Sessions Judge who tried the case, as we are told, may no longer be available at the same station. He had inflicted the sentence of death on one and of rigorous imprisonment for life on the other. In these circumstances, we are of the view that no prejudice would be caused to the appellants if in lieu of the death sentence inflicted on Gouranga, the sentence oil rigorous imprisonment for life is imposed and the notice of enhancement of sentence be discharged and the sentence inflicted by the trial court on Prahallad is retained. That in fact would be the minimum sentence imposable once conviction is sustained.
12. The net result, therefore, is that the Death Reference is discharged, Pra-hallad's appeal is dismissed and Gou-ranga's appeal is dismissed subject to the modification of the sentence from one of death to one of rigorous imprisonment for life.
13. I agree.