1. This is an appeal brought by Rattan Lal and Chhanga against their convictions for murder under Section 302, Penal Code, and the sentences of death and transportation for life passed against them respectively by the learned Additional Sessions Judge. The matter is also before us for confirmation of the sentences under Section 374, Criminal P. C.
2. Rattan Lal is stated to be a son of the daughter of the uncle of Mst. Bharto P. W. 1 who is' now the widow of the deceased. Chhanga appellant is stated to be a nephew of the deceased Khushi Ram. On the night between the 1st and 2nd July 1953 in village Garauli in Police Station Shahdara Khushi Ram was murdered. The prosecution story is that after he was injured in his neck he came into the house, woke up his wife Mst. Bharto P. W. 1 and on her asking him as to what had happened told her that he had been murdered by Rattan Lal who had inflicted the injury while Chhanga was catching hold of him. The wife raised a hue and cry as a result of which several persons arrived at the place. Of them Dharam Pal P. W. 2 is a son of Khushi Ram and a step-son of Mst. Bharto. Other persons to arrive at the spot were Panwa P. W. 4, Chet Ram P. W. 5 and Charnu P. W. 6. It is stated that they arrived almost simultaneously and that & dying declaration was repeated in their presence to the effect that the murder had been committed by Rattan Lal while Chhanga was catching hold of the deceased.
While Mst. Bharto was washing herself outside an a well after easing herself the met the police who arrived there at about 4-30 a.m. (i.e., 2nd July 1952) and she made a statement to them which is the basis of the first information report. The only thing one need mention about this first information report is that after about midnight Khushi Ram is stated to have come running into the house and woke up his' wife. She saw that blood was coming from Khushi Ram's neck. Re fell in front of the kotha and told her that Rattan Lal had killed him. Thereafter the other witnesses also arrived. The notice given in the first report-is that Rattan Lal had borrowed Rs. 207- from the deceased some years ago which he had not returned and he was also demanding another sum, of Rs. 100/- which Khushi Ram and his wife had refused to lend to Rattan Lal. Khushi Ram died-soon after aad a 'post mortem' examination was performed and the following injury was found, on his person;
'An incised wound 2 1/4' x 3/4' in front of the neck, cutting the thyroid cartilage & the oesophagus. The thyroid was so cut that the upper piece was about l/4th and the lower piece was about-3/4th. The wound went through the back wall of the larynx and made a cut in the anterior wall of oesophagus about half an inch long, transverse in direction. The wound in the larynx was below the level of the vocal chords.'
3. In cross-examination the doctor stated: 'It is possible that after the wound the two pieces of thyroid cartilage may not have separated from one another but may have remained in opposition with one another. In that state-the injured person could speak with a low voice.'
He also stated that if a little air could escape through the injury, then the victim's voice could be heard with a lower whisper and if considerable air was passing through the injury then naturally there would be no audition.
4. Rattan Lal was arrested at 12 noon on 2-7-1953 while Chhanga was arrested on 5th July, and on the 10th July he is alleged to have made a confession to a Magistrate. On the following day Rattan Lal, it is stated, pointed out a knife in a hut in the field. The evidence consists or four pieces. Firstly, there is the dying declaration which was made in the presence of P. W. 1, the widow, P. W. 2 Dharam Pal, the son of the deceased, and three outsiders Panwa P. W. 4, Chet Ram P. W. 5 and Charnu P. W. 6. Secondly, there is the retracted confession of Chhanga. Thirdly, there is the bloodstained shirt of Chhanga, and fourthly there is the recovery of an alleged-blood-stained knife at the instance of Rattan Lal. It has been found that this was not stained with human-blood.
5. The learned Judge rejected the evidence in regard to the bloodstained shirt and the recovery of the knife at the instance of Rattan Lal. The only two pieces of evidence that remain available to the prosecution in support of the conviction are the dying declaration and the retracted confession. I will take up the latter first.
6. As it has been held in a judgment of the Supreme Court in -- 'Kashmira Singh v. State of Madhya Pradesh', AIR 1952 SC 159 (A), a retracted confession does not come within the definition-of evidence contained in Section 3 of the Indian Evid-ence Act and their Lordships approved of the' observations of Reilly J. in -- 'Perlyaswaml Mooppan v. Emperor', AIR 1931 Mad 177 (B) at p. 178; where the learned Judge said:
'the provision goes no further than this -- where there is evidence against the co-accused sufficient,, if believed, to support his conviction, then the kind or confession described in Section 30 may be I thrown into the scale as an additional reason ' for believing that evidence.
In that view of the matter, we have to see what is tile evidence in support of the prosecution. There is only the dying declaration.
7. In view of the injury, which I have described above it is very doubtful that the deceased could have made any statement at all and it is significant that although in the first information report the name of only Rattan Lal has been mentioned and Chhanga's name has been added in the subsequent statements made by other persons to the Police, yet we have the evidence of Kala Lambardar P. W. 16 who in cross-examination staled that Charnu, Chet Ram and Panwa P. Ws. went to his house at night and mentioned that Khushi Ram had been murdered, but they did not name who had murdered him, and Panwa as P. W. 4 stated in cross-examination at p. 18; line 18, that when he got to the house of Khushi Ram he (Khushi Ram) was already dead. In view of the medical evidence and of the statements which have been made by the various witnesses it is very doubtful that the name of the alleged murderers could have been mentioned by the deceased because of his injury. On this evidence, I am not prepared to accept the veracity of the evidence in regard to the dying declaration, and if that vanishes the retracted confession is of no avail whatsoever.
8. I would therefore allow this appeal, set aside the conviction and order that the appellants be released forthwith.
9. I agree.