J.P. Mitter, J.
1. The appellant was tried upon a charge of murder by the learned Sessions Judge of Hooghly sitting with a Jury. By ' a majority verdict of 8 to 1 the Jury found the appellant guilty under Part I of Section 304, Penal Code. The learned Judge accepted that verdict, convicted the appellant of the relative offence and sentenced him to suffer rigorous imprisonment for 10 years.
2. The prosecution case against the appellant was as follows: The appellant was brought up by the deceased Angurbala who was his mother's sister. The deceased also brought up a girl named Kanchanbala. Both the appellant and Kanchanbala grew up as brother and sister and were reared by the deceased as her own children. The deceased possessed a fair amount of landed properties Including a house at Tarakeswar.
When Kanchanbala grew up she was married to a man called Karnala Kanta. When the appellant came to age, he too was married, and at the material time he had a wife and children. The only home the appellant had was that of his foster mother Angurbala, whose affairs he looked after. Sometime in 1950 Angurbala executed a Will whereby she devised 4 1/2 bighas of land to Kanchanbala.
Shortly before Angurbala came by her death she had promised to make a gift to Kanchanbala of half of the Tarakeswar property. The appel- , lant did not relish the idea of any further gift to Kanchanbala. Indeed, he quarrelled with the deceased over the letter's intention to make the gift.
On or about the 12th Falgoon, corresponding to 25-2-1954, Karnala Kanta was summoned by the deceased to her home in Bajitpur, a village within the police Station Tarakeswar. That evening Angurbala went to her lawyer, a gentleman by name E'kkari Mukherjee and made over to him her original Will which she had executed in 1950 with certain Instructions about it.
This enraged the appellant. Kamala Kanta stayed on at the deceased's house for the night. The appellant occupied one of the ground floor rooms while the deceased and Kamala Kanta each occupied a room on the first floor. The house was a two storied mud kotha structure. At about 2-30 In the morning of 26-2-1954, the deceased Angurbala came down into the courtyard of her house to answer a call of nature.
The appellant came out of his room with a Katari with which he struck the deceased on the head and on other parts of her body. The attack was so serious that the deceased fell down. As she was attacked, she cried out. This roused Kamala Kanta from his sleep. Kamala Kanta on coming out of his room on the first floor saw the appellant striking the woman on the head with a weapon.
Kamala Kanta raised an alarm, whereupon the appellant went out of the house by a back door. After the exit of the appellant, Kamala Kanta came down and found the woman lying in a pool of blood, gave her a little water and then went out to obtain help from neighbours. Soon, two neighbours, named respectively Sudhir Mandal and Surendra Nath Chatterjee, appeared on the scene. Others, whose names will be referred to hereafter, also followed.
The woman was still alive and she was soon surrounded by these people. Kamala Kanta went out for a doctor and about an hour later a doctor by name Anil Chandra Bagchi arrived. He had her removed to Tarakeswar Hospital for first aid. The woman, on being questioned as to who had assaulted her. mentioned the name of the appellant. In the meantime, at 5 A, M. or thereabout, the appellant turned up at the local thana wearing a 'dhoti' which was stained with blood. There he made a certain statement, whereupon he was taken into custody.
As the deceased had several injuries upon her head, some of Which appeared to be fatal, she was sent by a morning train to Walsh Hospital at Serampore. As the deceased's condition was considered to be precarious and there was no time to be lost, the investigating officer could not make any arrangement at Tarakeswar to have a proper dying declaration recorded.
But he sent a request to the police at Serampore to fry and obtain a proper dying declaration from the woman. The first information report had already been filed by Kamala Kanta. It appears to have been reported at 6-30 A. M. At the hospital the deceased was given an intra-veinous injection of glucose and saline which made her rally a little.
She was then asked by the doctor as to who had caused her the injuries, to which the woman replied saying that Sital Maity of Bajltpur had caused her the injuries. This statement was said to have been made in the presence of a police officer. No record of this statement however was preserved, although, according to the police officer, a note of it was made on a piece of paper which was subsequently thrown away after the relative entry had been made in the Diary.
The woman died in the hospital at about 1 or 1-30 P. M. on 26-2-1954. As a result of the investigation which followed the first information report, the appellant was sent up and ultimately committed to the Court of Session upon a charge under Section 302, Penal Code.
3. The appellant's defence was that he had not committed the crime. In his statement under Section 342, Criminal P. C., the appellant stated that he had a cut injury on his finger which was responsible for the stains of blood found on his cloth or 'dhoti'.
4. In order to establish the case for the prosecution as many as 16 witnesses were called. The only eye-witness to the attack was Karnala Kanta who was P. W. 1. He It was who lodged the first information report at about 6-30 A. M. the same morning, According to this witness, he saw the appellant striking the deceased with a Katari'.
In the first information report the weapon mentioned by the witness was a dagger. The witness deposed not only to seeing the actual attack but also to the appellant leaving by the back door with the 'Katari' in his hand. It was Kamala Kanta who went out to call Sudhir Mandal and Surendra Chatterjee. He also deposed to the deceased having mentioned that the appellant had struck her and wanted to kill her, Sudhir Mandal, P. W. 2, and Surendra Nath Chatterjee, P. W. 3, testified to the deceased lying in a pool of blood in the courtyard of the house. According to Sudhir, when he turned up, the appellant was not at the house but was later found in a grog shop near his field of potatoes. Sudhir called out to the appellant, apprising him of the condition of Angurbala and asked him to call a doctor and to report the matter to the Thana.
According to Sudhir, the appellant did not return to the house but proceeded towards Tarakeswar. Neither Sudhir nor Surendra Chatterjee corroborated Kamala Kanta as to his having mentioned to them the name of the appellant as the deceased's assailant or as to the deceased having mentioned the appellant as her assailant.
Apart from Kamala Kanta's evidence as to what the deceased, while still lying in the courtyard, said about the attack on her, there was the evidence of Dr. Anil Chandra Bagchi, F; W. 6, to the effect that when the woman slightly re-covered at the hospital she stated that Sital Maity of Bajitpur had caused her the injuries.
The evidence was that the statement so made was in answer to a Question as to who had caused her the injuries. The other witnesses, viz., Adhar Chandra Ghose, P. W.' 6, GOUR Samanta, P. W. 7 and Chandi Charan Roy, P. W. 8, who turned up at the woman's house afterwards, did not corroborate the evidence of Kamala Kanta as incriminating the appellant. Gour Samanta, P. W. 7, deposed as follows:
'P. w. 1, Sudhir Mandal, Chatterjee and I went to Angurbala's house. There was none else. I found Angurbala lying injured by the side of a tubewell. Chatterjee called her but she did not give any response. She was lying uncons-cious. Chatterjee asked P. W. 1 as to how it happened to which P. W. 1 said that he could not say anything.'
It is thus seen that not only did the witness not corroborate Kamala Kanta but in factcontradicted the evidence of Kamala Kantaabout his having witnessed the appellant attackAngurbala. There was however unimpeachableevidence that the appellant presented himself atthe thana at about 5 A. M. while he was in a'dhoti' with blood-stains. . ' - -' ' -'
Biswanath Chandra (P. W. 10) who was a witness to the seizure of the cloth which the appellant had on stated that he had not seen that Sital had any finger cut while Sital was at the thana. There was also evidence to prove that the deceased had executed a Will in 1950 whereby she had bequeathed 4 1/2 bighas of land to Kan-chanbala, that the deceased in fact Went to her lawyer on the night of the 12th Falgooh with the Will in question and that she left the Will behind with the lawyer.
Ekkari Chandra Mukherjee, P. W. 14, admitted having received the woman's Will but) stated that the woman had not expressed to him her desire to cancel the Will and to execute another Will. Upon examination of the blood stains on the 'dhoti' of the appellant they were found to be stains of human blood. The accused's statement made at the thana was recorded in the General Diary at 5 A. M., that is, at least an hour before the first information was lodged.
A portion of this statement was never placed before the Jury. That portion is in brackets in Ext. 8. Ext, 8 minus the portion in brackets is therefore the accused's statement made to the police that morning. As a considerable amount of argument was advanced as to the admissibility of this statement, it is as well to set it out. This is what the appellant stated at the thana:
'Sital Maity, son of late Manmatha Malty of Bajltpur coming to the thana with blood-stained cloth informs (the police) that he has been living for a long time in the house of his mashi (aunt) Angurbala. Yesterday, i. e., on 24-2-1954 at day time, he (the informant) had a quarrel with Angurbala Dasi, as a result thereof, Angurbala said that she would. drive him away from the house and as she told him that she would not make any gift of the properties to him, he became angry and when Angurbala came out to answer a call of nature this night, he struck Angur with a Katari on her head and shoulder and as a result thereof Angur fell down on the ground.
He cannot say if Angurbala is alive now. I put the informant under arrest under Section 54, Criminal P. C., and take him into custody. I hereby seize the bldod-stained cloth which is in the wearing of the accused and after preparing a seizure list in the presence of witnesses, take it into my custody as an alamat and I set out for Eajitpur to ascertain the detailed, information about the occurrence and to make proper arrangement for (the treatment of) the injured.
Jiten Babu A. S. I. is placed in charge of the thana together with the articles belonging to the Government.'
5. This appeal was admitted upon a petition from jail by the Bench taking undefended criminal cases. Before us, the appellant's case has been very ably, argued by Mr. Sudhansu Sekhar Mukherjee who has taken the following points :
(1) In the summing up to the Jury there was no direction as to the use to be made of a first information report in a criminal trial.
(2) There was no direction that a dying declaration had to be corroborated.
(3) There was no direction that in the circumstances of the case the declaration as made by the woman could have been inspired by some interested persons.
(4) Ext. 8 was inadmissible and the direction relating to it was both inadequate and. incorrect.
6. It is admitted that there is nothing in the summing up as to the use which may properly be made of the first information report. There can be no doubt that such a direction was necessary. It is to be observed however that although the learned Judge appears not to have expressly given such a direction, he was careful to point out that in certain respects the evidence of Kamala Kanta was contradicted by his statement to the police which was the first information report,
For instance, the learned Judge pointed out that whereas in his evidence Kamala Kanta deposed to having seen the appellant attack the deceased with a 'Katari', in his statement to the police he mentioned that the weapon was a dagger. The contradictions were, in our view, sufficiently exposed to enable the Jury to assess the evidence of Kamala Kanta.
The failure on the part of the learned Judge to point out to the Jury that the first information report was not a piece of substantive evidence but could be used for the purpose of corroboration or for contradiction of the evidence of the maker of the first information report did not, in our view, affect in all the circumstances of this case the decision which the Jury ultimately reached.
7. As to the point that Ex, 8 was inadmissible as having been hit by Section 25, Evidence Act, one has only to look at the statement minus the part which can be said to incriminate the appellant. It must be said that Mr. Mukherjee was not in the end prepared to say that Ex. 8 was a confession. Mr. Mukherjee however maintained that Ex. 8 constituted an admission of an incriminating circumstance and that it would not therefore have been allowed to be placed before the Jury.
In 'Pakala Narayana Swami v. King Emperor' , Lord Atkin, delivering the Judgment of the Board, pointed out that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. Continuing, his Lordship observed: 'An admission of a gravely incrimi-nating fact, even a conclusively incriminating fact, is not of itself a confession.' Ex. 8 not being a confession could not be excluded by Section 25, Evidence Act.
The statement concerned having been made to the police prior to the investigation in the case was also not hit by Section -162, criminal P. C, If Ext. 8 was admissible, as we hold it was, then the fact that on 24-2-1954 the appellant had a quarrel with Angurbala can be said to have been proved not only by the evidence of Kamala Kanta but also by the statement made by the appellant at the thana.
That the appellant presented himself at the police station at 5 A. M. with a dhoti on which had stains of human blood could not be doubted by anybody. According to Kamala Kanta, the deceased woman, while lying in her courtyard, mentioned that she had been attacked by Sital. According to Dr. Anil Chandra Bagchi, the woman said the same thing at the hospital.
It is clear that both the declarations were in answer to questions put to her. It does not however appear from the narrative of the evidence that the declarations were in answer to any leading question, such as, 'Were you attacked by Sital?' From the evidence of the doctor, P. W. 5, it seems dear to us that the question put to her was: 'Who caused you these injuries?'
It is true that no record of what was actually put to her or of what her answer was has been preserved, but it cannot be argued that the evidence as to the declarations for what they were worth was inadmissible.
8. Mr. Mukherjee has not stressed the point of admissibility as much as the point that the learned Judge should have directed the Jury as to the necessity of corroboration. The learned Judge did not tell the Jury that a dying declaration was required to be corroborated. It was however pointed out to the Jury that it was open to them to consider the declarations along with the rest of the evidence in the case.
If this had been a case where the only evidence to connect the accused with the crime was a dying declaration, then it would clearly have been the duty of the learned Judge to point out to the Jury that it was unsafe to found a conviction upon a mere dying declaration unless it was corroborated in material particulars by independent evidence.
In this case there was the evidence of Kamalal Kanta and all the surrounding circumstances which clearly pointed to the conclusion that it must have been the appellant who attacked the woman and caused the Injuries to which she ultimately succumbed. Although therefore the direction as to the dying declaration was defective in certain respects, the omissions cannot be said bo have aftected the ultimate decision of the Jury.
As however a good deal more should have been said about the value to be attached to a dying declaration in the circumstances disclosed, we thought it necessary to examine the evidence in the case so as to see for ourselves if the ver-dict was justified by the evidence. In this task we have had the assistance of both Mr. Mukher-jee for the appellant and Mr. Chatterjee on behalf of the State.
We have examined the evidence and are satisfied that upon that evidence the Jury could properly have come to the conclusion they did as to the guilt of the appellant. We have already referred to the evidence of P. W. 1 Kamala Kanta. We have indicated that in certain respects witnesses Sudhir and Surendra contradicted Kamala Kanta.
'Now, the evidence of Kamala Kanta and Sudhir establishes beyond doubt that appellant Sital was absent from the house when the woman was discovered to be lying fatally injured. The appellant had not only been brought up since the age of 11 or 12 by his aunt, the deceased, but at all material times he had his home in the same house with a family of wife and children.
The appellant had known the deceased as his mother. He was absent from the house when his presence was to be expected. While the woman was lying In a pool of blood in the courtyard of the house, the appellant was at the thana with blood-stains on his 'dhoti'. The evidence of Sudhir Mondal was to the effect that appellant Sital had gone to his potato field and was keeping watch over it.
Sudhir said that he asked Sital to inform a doctor and the thana about Angurbala having been wounded. Sital asked him if a doctor had been sent for and the police informed, to which Sudhir said, 'no'. Sital, according to Sudhir, then proceeded towards Tarakeswar. Sital did not come to the house.
In his statement under Section 342, Criminal P. C., the appellant stated as follows:
'I am innocent, Your Honour. I had a cut injury on my finger. I showed it to the doctor who had been to the Serampore Jail. He asked me if I had got the injury by some (weapon)? put of fear, I told him that it had developed into what is like a septic wound. I did not make any mention of the cut injury.
He told me to compress it and bandage it with cotton. My cloth had stains of blood of that cut injury, which I had on my finger. I mentioned about that when the cloth was seized. As I was asked to sit, I took my seat in the Thana.
Q: Will you say anything else?
Q: Will you adduce any evidence in defence?
9. As to whether Angurbala stated, while she was still in her own house, that the appellant had attacked her, there is only the evidence of Kamala Kanta. Even if this evidence be discarded, there would still be the evidence of the doctor, P. W. 5,>that at Serampore Hospital after the woman had slightly recovered she stated that Sital Malty of Bajitpur had caused her the injuries. The relative evidence of P. W. 5 was as follows:
'I asked her as to who had caused her these injuries to which she replied that Sital Malty of Bajitpur had caused her these injuries. Officer in charge was there as also Others. I examined her and sent the injury report to Thana.'
It seems to us clear from the evidence that the deceased's answer was not in response to any leading question. The evidence as to the condition of the woman in spite of injuries concerned remained unshaken. As to whether or not the deceased made the declaration concerned, the evidence of the doctor, corroborated as it was by that of the investigating officer, was, in our view, conclusive.
There Was no evidence which went counter to it unlike the evidence of Sudhir and Surendra in relation to the declaration alleged to have been made by the deceased while still in the courtyard of her house. Having examined the evidence we are satisfied that this evidence of the woman's dying declaration, though not reduc-ed into writing, could not be rejected.
As we have already said, the statement that appellant Sital had attacked the woman does not appear to us to have been elicited in answer to any leading question. The learned Judge's direction as to the weight to be attached to a dying declaration, though not full, indicated that there was not only nb oath to support it, but It was untested by cross-examination.
The learned Judge pointed out that the evidence as furnished by the said declaration was to be treated with a certain degree of caution. Further warning was administered to the Jury as to the credibility of a dying declaration. This is to be found at page 57 of the paper book.
We think that in all the circumstances of this case the failure of the learned Judge to direct as to the necessity of corroboration of the dying declaration did not cause the appellant any prejudice. Kamala Kanta's evidence amply corroborated the dying declaration.
The accused's own conduct, his statement about the quarrel with the deceased, his statement as to the cause of that quarrel, the absence of the accused from the house at that hour of the morning, his subsequent presence at the thana, the blood-stains on his 'dhoti' and the evidence of Kamala Kanta together with all the surrounding circumstances of the case would appear to us to be sufficient to connect the appellant with the crime alleged to have been committed by him.
Upon a -careful examination and analysis of the evidence in the case, making all such allowances as may reasonably be made in favour of an accused, having regard to such conflict as there was between the evidence of Kamala Kanta and Dr. Anil Chandra Bagchl, P. W. 5, on the one hand, and the evidence of Sudhir Mondal, Suren Chatterjee and one or two other persons, on the other, we are satisfied that the case for the prosecution was established beyond any reasonable doubt.
We are satisfied further that the defects pointed out by Mr. Mukherjee either singly or collectively could not possibly have affected the conclusion to which the Jury reached upon the evidence in the case. Although we have not had the advantage of hearing and seeing the witnesses, the evidence satisfies us, beyond any reasonable doubt, that it was the appellant who committed the crime. That being the position, this appeal fails and is dismissed.
Renupada Mukherjee J.
10. I agree.