Beverley and Banerjee, JJ.
1. The appellant Jagat Chandra Mali has been convicted of murder and sentenced to death by the Sessions Judge of Tipperah, and the proceedings have been referred to this Court for confirmation of the sentence under the provisions of Section 3741 of the Code of Criminal Procedure.
2. The appellant Udoy Tara has been convicted of abatement of murder and has been sentenced to transportation for life.
3. The deceased was the husband of the female accused Udoy Tara, and the medical evidence shows, beyond all reasonable doubt, that, on the night of Monday, the 26th February last, he was done to death by being beaten severely on the head and upper portion of the body. The case for the prosecution is that the male accused had an intrigue with the deceased's wife Udoy Tara, and that, on the night in question, the deceased was enticed out of his house by the female prisoner when he was set upon by Jagat Chandra, and with the woman's assistance was beaten to death. The case may be said to rest entirely upon the so-called confessions of the accused.
4. Before going into the merits, we must point out a grave irregularity Which was committed in the trial of the case in the Court of Session, which alone, as we think, would suffice to prevent us from affirming the present conviction in the case of either of the accused.
5. It appears that, during the preliminary inquiry before the Deputy Magistrate, the female accused Udoy Tara was on the 24th April offered a pardon Under the provisions of Section 3372 of the Code, and the tender having been accepted, her deposition was recorded, and she was sent up to the Court of Session as a witness for the prosecution.
6. In the Court of Session she was the first witness examined, and as she deviated from the statements made by her to the Deputy Magistrate, the Sessions Judge seems to have stopped her examination, made an order that she should be tried for the offence in respect of which the pardon was tendered, and then and there to have transferred her from the witness-box to the dock. At the same time her name was inserted in the charge by the Sessions Judge, and the trial proceeded as against both the accused jointly.
7. Now, it has been pointed out in several reported cases that this procedure is irregular and unfair to the accused. In the case of The Queen v. Petumber Dhoobee 1.4 W.R. Cr. 10 which was a case tried when the Criminal Procedure Code of 1861 was in force, Phear, J., commented upon the unfair- ness of such a proceeding and pointed out how it tended to prejudice, not only the approver himself on his trial, but also those with whom he was being jointly tried. In the case of In re Joyudee Paramanick (7 C.L.R. 66), which was a case very similar to the present, and was decided when the Code of 1872 was in force, the Court expressed the opinion that the Sessions Judge would have exercised a wiser discretion had he refrained from trying the approver along with the other accused. In Queen-Empress v. Sudra I.L.R. 14 All. 336, the same view was taken by Knox, J. In Queen-Empress v. Malua I.L.R. 14 All. 502 the accused Malua had, along with others, been committed to the Court of Sessions upon certain charges and had pleaded guilty. After two witnesses had been examined for the prosecution, the Sessions Judge tendered a pardon to Malua, who was then put into the witness-box and examined as a witness. The Judge being of opinion that his evidence was false, then revoked the tender of pardon and put Malua back from the witness-box into the dock and proceeded with the trial as against him and the other three accused. In regard to this procedure the High Court remarked: 'Whether or not that proceeding was illegal, it is quite clear to our minds that it might most seriously prejudice the defence of a man who was taken out of the dock in the middle of a trial to give evidence upon a tender of pardon, to put him back in the dock after his evidence had been taken and to proceed to try him as if the tender had never been made. It would be most difficult for a man placed in such circumstances to deal with the evidence or to defend himself and put forward any points which might be in his favour with effect.' And having a doubt as to the legality of the procedure adopted, the Court set aside the conviction of Malua and ordered him to be retried.
8. In the case of Queen-Empress v. Rama Tevan I.L.R. 15 Mad. 352 the facts wore very similar to those in the present case. Two approvers had been sent up to the Sessions Court as witnesses. The Judge revoked their pardon and proceeded at once to try them along with the other accused. The High Court held that the approvers not having been committed for trial the action of the Judge was ultra vires. The Court, therefore, set aside the conviction of the approvers and directed a fresh trial of the other accused on the ground that they had been prejudiced by the action of the Judge. As regards the approvers the Court said: 'By Section 349, 3 Act X of 1872, a Sessions Judge was empowered to commit or direct the commitment of any person who, having accepted an offer of pardon, did not conform to the conditions under which the pardon was tendered, but the present Code contains no such provisions, and in Section 339 it is merely laid down that such a person may be tried for the offence in respect of which the pardon was tendered; but Section 193 provides that no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction, unless the accused has been committed to it by a Magistrate duly empowered.' And, farther on, the Court say: 'Even supposing that the Sessions Judge had had power to try the two approvers, we concur with the learned Judges of the Calcutta Court- The Queen v. Petumber Dhoobee 14 W.R. Cr. 10 and The Queen v. Bipro Dans 19 W.R. Cr. 43: that it is unfair to put an approver, whose conditional pardon has been cancelled, on trial along with the other prisoners, in the course of whose trial such approver has given evidence, and that the proper course is to defer taking action against the approver until the conclusion of the trial then proceeding.' See also the case of Rama Varma Baja v. The Queen I.L.R. 3 Mad. 351.
9. For the reasons given in the two cases last cited we are of opinion that the course pursued by the Sessions Judge in this case was not merely irregular, but that the trial of the appellant Udoy Tara was all together illegal. Section 1934 of the Code now in force runs as follows: 'Except as otherwise expressly provided by this Code, or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.' We are not aware of any provision either in the Code itself or in any other law now in force, and Mr. Leith has been unable to refer us to any such provision, which would authorise the Sessions Judge in this case to, take cognizance of the offence of murder and to try Udoy Tara for that offence without a commitment duly made by a competent Magistrate That being so, we must set aside the conviction of Udoy Tara on. the ground that the Sessions Judge had no jurisdiction to charge and try her for the offence of murder. In the view we take of the matter it is almost unnecessary to add that she was unfairly prejudiced by the course which the Sessions Judge followed in suddenly putting her on her trial without notice, without any preliminary enquiry and without an opportunity being allowed her to-retain legal advice or to adduce evidence in her defence.
10. But we are further of opinion that the other accused Jagat Chandra was also prejudiced by the course which the Judge thought fit to take in this case. Udoy Tara having been tried along with Jagat Chandra, certain statements of the former have been put in evidence, which would not have been admissible in evidence against Jagat Chandra had he been tried alone. Moreover, Udoy Tara having been sent up by the Committing Magistrate as a witness against him under Section 337 of the Code, Jagat Chandra had the right to cross-examine her, which right was apparently not allowed him.
11. The statements of Udoy Tara used at the trial were:
(I) Her statement to the police on the 27th February, Exhibit X.
(II) Her statement to the Magistrate on the 2nd March.
(III) Her statement to the Magistrate on the 9th March.
(IV) Her deposition before the Magistrate on the 24th April.
12. It appears that the woman was also examined as a witness by the Deputy Magistrate on February 27th and February 28th, but these depositions were apparently not put in evidence at the trial.
13. The statement of the 27th February (Exhibit X) was apparently intended to be used as the first information in the case. But it was clearly not the first information. The evidence shows that the first information was given to the police by Sharat Chandra at the thanna. That information, though admittedly reduced to writing, has been suppressed. Udoy Tara's statement(Exhibit X) was made by her at her house after the arrival of the police. It was the statement of a witness, not of an accused person, and Udoy Tara not being a witness at the trial, we are not aware of any provision of the law under which it was admissible against Jagat Chandra. On the contrary, Section 162 of the Code distinctly says that such statement shall not be used as evidence against the accused. Udoy Tara's statements of the 2nd and 9th March were those of an accused person, and could only be taken into consideration as against Jagat Chandra, under Section 30 of the Evidence Act, if the two accused were being tried jointly for the same offence. As we are of opinion that the trial of Udoy Tara in the absence of any commitment by a Magistrate was bad in law, it follows that the statements (II) and (III) were not admissible against Jagat Chandra.
14. Nor in our opinion was the deposition of the 24th April (IV) admissible in evidence against Jagat Chandra. If it is contended that the deposition was treated as evidence under the provisions of Section 288 of the Code, the answer is obvious that it ceased to be evidence as soon as Udoy Tara was withdrawn from the witness-box and placed in the dock. Moreover, no opportunity was given to Jagat Chandra to cross-examine Udoy Tara upon this deposition. The admissibility of such depositions was doubted in the following cases, namely : In re Joyudee Parafnanick 7 C.L.R. 66 and Nanha Mulla v. Empress 13 C.L.R. 326, but as the matter was not argued in those cases the question was not decided. In the case of Queen-Empress v. Rama Tevan I.L.R , 15 Mad. 352 the point was raised, and it was contended that the depositions would have been admissible had the other accused been allowed to cross-examine upon them. The Court did not expressly decide the point, but it seems to have been admitted that, in the absence of the opportunity for cross-examination, the depositions were inadmissible.
15. If, on the other hand, the deposition be regarded as a confession, we think that it was clearly inadmissible against Jagat Chandra, not only for the reasons given above, but also because it was irrelevant under Section 245 of the Evidence Act, it having been made after the tender of pardon.
16. For these reasons we think that the statements of Udoy Tara were not admissible in evidence against Jagat Chandra, and we must, therefore, consider, having regard to Section 1676 of the Evidence Act, whether there is sufficient evidence against him, independently of those statements, to justify us in affirming the conviction.
17. In convicting Jagat Chandra, the Sessions Judge has mainly relied upon his confession of the 1st March, but before considering that confession, it may be well to consider certain other evidence to which the Judge attaches some importance. The Judge thinks it abundantly proved that an intrigue existed between the two accused. We are not at all satisfied upon the evidence that any such intrigue really existed. In the first place it is improbable; the two persons are related to each other and the woman is much older than Jagat Chandra. Then the evidence respecting it is all hearsay, extremely vague, and not in our opinion such as would be forthcoming had any such intrigue really existed. The evidence of Sharat Chandra in particular on this point is very unsatisfactory. If an intrigue existed, he must have known of it, yet he denies all personal knowledge of it, and contents himself with saying: 'People say so.' The statements of the accused themselves are contradictory as to the period of this intimacy. It is not improbable that Jagat Chandra, while in the service of Mr. Delawnay, lived in the same hut with Sharat and the deceased and his wife, but that fact is not sufficient in itself to raise the inference of an intrigue between him and the wife of the deceased.
18. Then it appears that after leaving the service of Mr. Delawnay, Jagat went to live at Kartola, some four or five hours' journey from Kandipur, where the deceased lived, and it was at Kartola that he was arrested on the Wednesday. But evidence is given that he was seen in Kandipur on the Sunday and the Monday, and that he returned to Kartoia early on the Tuesday morning. It may be that he was in Kandipur on the Sunday, though it is to be observed that there is a contradiction between the evidence of Sharat Chandra and of Obhoy Chandra as to where he took his meal that night. As regards the Monday, Lakhi, the wife of Ramratan Mali (who is not called), says that Jagat ate his mid-day meal that day at their house, and in this she was corroborated before the Sessions Court by Jagannath Mali, who lives in the same bari. But before the Magistrate Jagannath said that he had not seen him there after the Sunday. We cannot, therefore, attach much weight to this evidence, any more than to that of Ramkumar Mali, who deposes to the fact of Jagat's arrival at Kartola early on the Tuesday morning.
19. Kandipur, where the murder took place, is about a mile distant from the Comilla Police Station. The Sub-Inspector states that information was brought to the Police Station by Sharat Chandra at about 8 A.M. on the 27th February. He recorded his statement, but did not make it the first information inasmuch as no one was charged with the crime. He then went to Kandipur, and at 9-30 A.M., recorded the statement of Udoy Tara (Exhibit X). Udoy Tara was examined the same day as a witness by the Deputy Magistrate, her statement being the same as in Exhibit X, namely, that she had seen Jagat Chandra throw her husband's body into the bamboo clump. On the 28th Jagat Chandra was arrested at Kartoia, and was brought in to the Sub-Inspector. The Sub-Inspector says he did not arrive till 8 P.M., but the same night he was sent to a Magistrate in order that his statement might be recorded, as 'he had almost confessed.' A statement was accordingly recorded that night by Deputy Magistrate Harendra Lal Kastagiri, in which Jagat charged not himself, but Sharat and Udoy Tara with the murder, but which statement is certified as a free and voluntary confession. Jagat remained in the hands of the police that night, and next day, namely, March 1st, he made another statement to another Deputy Magistrate, Bissessur Bhuttacharji, in which he charged himself and Udoy Tara with having been concerned in the murder. It is on this confession that we are asked to affirm the conviction.
20. After that statement had been recorded, Udoy Tara was also charged with the crime, and on the following day (March 2nd), she made another statement before the Deputy Magistrate, in which she fully implicated Jagat and herself. But at the close of her examination occur the following significant questions and answers:
' Q-Why did not you state all these when you previously gave deposition to me?
' A.-So long I did not say; he threw every thing upon me, and I therefore said.
' Q.-How could you know that everything was thrown upon you?
' A.-At that time in the jail he said to the Court Babu that Sharat and his sister killed him. Lastly, he changed his version and said Sharat did not know anything, he and I killed him.
' Q.-Whether the statement made by you before' is correct or the statement made by you now is correct?
' A.-The statement made by me now is correct.
' Q.-Has anybody frightened you or tortured you to make such' statements?
Q.-Whether the Court Babu or Inspector Babu went to the jail?
A.-Both Court Babu and Inspector Babu went to the jail.' From these answers it is clear to us that the police were inducing the two accused to confess by playing them off against each other.
21. On the 9th March both Jagat Chandra and Udoy Tara retracted their confessions, stating that they had been made under fear of the police. Now, what we have to decide is, whether Jagat's confession of March 1st was such a free and voluntary admission of his guilt that we should be justified in acting upon it and upholding his conviction for murder upon the strength of it, and it is with a view to this consideration that we have thought it necessary to set out at length the circumstances under which the confession was made. And upon a full consideration of these circumstances and of the various statements made by the two accused from time to time, we are of opinion that Jagat's statement of March 1st was not such a spontaneous admission of his guilt that we should be justified in acting upon it. It seems clear from the hot haste in which these two persons were placed before the Magistrate at different times between the 27th February and the 2nd March that the police were anxious to elicit some statement from one or both of them which should serve as a confession. There is also reason to believe, as we have said above, that the police were playing off one accused against the other, so as to induce them to charge each other with the crime. Then, if we look at the statement itself, we do not think it bears the impress of being genuine and spontaneous. A few hours before, Jagat had made a totally different statement, equally certified to be a true and voluntary confession, in which he had charged Sharat with the murder, and although in the statement of March 1st he does say that it was he himself who beat the deceased to death, the statement is mainly occupied with what Udoy Tara did and is so framed as to throw the real blame on her. The statement is not corroborated in any way. Nothing was discovered or brought to light in consequence of it, and it was protracted on the next occasion on which Jagat Chandra was placed before the Magistrate.
22. Under these circumstances, we feel that we cannot safely act upon this confession, and there being no other evidence upon which Jagat Chandra could be convicted, we have no alternative but to reverse the finding of the Sessions Judge and to acquit him.
23. We, accordingly, reverse the conviction of both the appellants. We acquit Jagat Chandra, and we direct that both the accused be released.
1 Sentence of death to be submitted by Court of Session.
[Section 374: When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.]
2 Tender of pardon to accomplice.
[Section 337 : In the case of any offence triable exclusively by the Court, of Session or High Court, the District Magistrate, a Presidency Magistrate, any Magistrate of the first class inquiring into the offence, or, with the sanction of the District Magistrate, any other Magistrate, may, with the view of obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, the offence under inquiry, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to such offence, and to every other person concerned, whether as principal or abettor, in the commission thereof.
Every person accepting a tender under this section shall be examined as a witness in the case.
Such person, if not on bail, shall be detained in custody until the termination of the trial by the Court of Session or High Court, as the case may be.
Every Magistrate, other than a Presidency Magistrate, who tenders a pardon under this section, shall record his reasons for so doing; and when any Magistrate has made such tender and examined the person to whom it has been made, he shall not try the case himself, although the offence which the accused appears to have committed may be triable by such Magistrate.]
3 When Magistrate, Court of Session or High Court may direct commitment of person to whom pardon has been tendered.
[Section 349: When a pardon has been tendered under section three hundred and forty-seven or section three hundred and forty-eight, if it appears to the Magistrate before the trial, or to the Court of Session before judgment has been passed, or to the High Court as a Court of reference or revision, that any person, who has accepted such offer of pardon, has not conformed to the conditions under which the pardon was tendered, either by wilfully concealing anything essential, or by giving false evidence, such magistrate or Court may commit or direct the commitment of such person for trial for the offence in respect of which the pardon was so tendered.
The statement made by a person under pardon, which pardon has been withdrawn under this section, may be put in evidence against him.]
4 Cognizance of offences by Courts of Session.
[Section 193: Except as otherwise expressly provided by this Code or by any other Jaw for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the accused has been committed to it by a Magistrate duly empowered in that behalf.
Cases to be tried by Additional and Joint Sessions Judges.
Additional Sessions Judges and Joint Sessions Judges shall try such cases only as the Local Government by general or special order directs them to try, or as the Sessions Judge of- the Division makes over to them for trial.
By Assistant Sessions Judges.
Assistant Sessions Judges shall try such cases only as the Sessions Judge of the Division, by general, or special order makes over to them for trial.]
5. Confession caused by inducement, threat or promise irrelevant.
[Section 24: A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.]
No now trial for rejection or improper reception of evidence.
6.[Section 167: The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court, before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.]