1. [The accused was a widow some 29 years of age who was undergoing a course of training to fit her to be a teacher in the Government Training School at Conjeevaram. She decoyed one of the pupils of the school about 9 or 10 years of age, took her to a place 10 miles, had her ornaments taken off and afterwards sold them to two goldsmiths and received the sale-proceeds. The next morning the child's body was found floating in water some 4 miles from the place and was very much decomposed. It was clear the child died of asphyxia and the balance of probability was that the child was dead before the body was put into the tank. The accused while she admitted that she was a party to removing the ornaments denied the murder and stated that the removal was at the instance of a person to whom the child's father owed money. On a consideration of the evidence, the Court came to the conclusion that the accused was responsible for the murder of the child to hush up the robbery she committed by taking the ornaments. The sentence of death was accordingly confirmed.]
2. We should like to add a word on one matter which arose during the trial.
3. By Section 342(1) of the Cr.P.C. the Committing Magistrate of the Court at the trial is entitled to put questions to the accused. Chief Justice Sir John Wallis and one of us have held in a decision which, so far as we know, is unreversed, In re Abibulla Rowthan 2 L.W. 939 : 16 Cr.L.J. 623 that the object of that section is to give opportunity to the accused if he so desires to tender any explanation he likes of his part in the case that is presented against him. Sub-section (2) of that section runs as follows:
The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the Jury (if any) may draw such inference from such refusal or answers as it thinks just.
4. In that state of things a Full Bench of this Court has held in In re Varisai Rowther (1923) M.W.N. 477 : A.I.R.(1923) (M.) 609 : 24 Cr.L.J. 547 in that particular case it was in ?the interests of the accused although we cannot think otherwise than that it will more often be greatly to his detriment, that the direction that the Judge shall ask the accused what he desires to say is mandatory and not discretionary. There is no provision in the Code for the accused being warned of the consequence of the statement he makes. The main consequence, of course, would be that the statement he makes must be given in evidence against him.
5. We contrast with that the provision of 11 & 12. Victoria, Ch. 42, Section 18 which runs as follows:
After the examination of all the witnesses on the part of the prosecution of a person brought before any Justice or Justices of the Peace, charged with any indictable offence, shall have been completed, the Justice of the Peace, or one of the Justices, by or before whom such examination shall have been so completed as aforesaid, shall, without requiring the attendance of the witnesses read or cause to be read to the accused the depositions taken against him, and shall say to him these words, or words to the like effect: 'Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial,' and whatever the prisoner shall then say in answer thereto shall be taken down in writing, and read over to him, and shall be signed by the said Justice or Justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards upon the trial of the said accused person, the same may, if necessary, be given in evidence against him, without further proof thereof, unless it shall be proved that the Justice or Justices...before such, accused person shall make any statement, shall state to him and give him clearly to understand, that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon, his trial, notwithstanding such promise or threat.' The first thing we desire to observe is that the English Act says' that the statement made by the prisoner in such circumstances may be given in evidence against him. It is within the experience of all Barristers who have practiced in the English Criminal Courts that the prosecution will always put in the statement of a man as part of their case when it helps him or amounts to a denial of the charge. But there are cases in which an accused person makes a foolish incriminatory statement, not understanding the position he is in, where prosecuting Counsel, with that sense of fair play which, we may say, invariably characterises them, they think it is in the interests of the man himself not to put in the statement. They always point out the statement to the presiding Judge and he understands why it is the prosecuting Counsel does not think it fair to let the statement of the prisoner go before the Jury. If the Judge thinks it ought to go in, he says so.
6. It seems to us that it would be a salutory amendment of the Indian Law if it were; not compulsory to put in such a statement. If there were any danger of prosecutors unfairly keeping back a statement that helped the accused, the Judge is there to insist on its being put in. Further, we think it is extremely desirable that some such form of caution as is prescribed by 11 & 12 Victoria should be introduced into the Cr.P.C., The, form in which this woman was invited to make a statement by the Committing Magistrate in this case was as follows:
You have heard all the statements of the prosecution witnesses; you have heard read all the records filed in Court on the side of the prosecution. What explanation, do you offer for it.
7. That seems to us a most undesirable method of inviting the accused person to make a statement. He is not warned that, it will be usable in evidence against him; he is not warned that, if he does not wish, he need not offer any explanation whatever. We think it is extremely desirable that Magistrates should follow the practice of warning accused persons when they invite their explanation under Section 342 of the Code that they are not obliged to say anything unless they desire to. The object of the section should be to give them an opportunity if they so desire, to explain their conduct and further warn them that anything they say will be put in evidence against them at their trial.
8. The Local Government will necessarily have this judgment before them when the question of confirmation comes up and they may possibly consider it advisable to approach the Government of India to amend the law in this respect and bring it into conformity with the very careful provisions of the Indictable Offences Act intended to safeguard the liberty of the subject.