1. The appellant has been convicted of the offence of abetment of murder (ss. 114 and 302 of the Penal Code) of a person named Muddun Banikya, and sentenced to transportation for life. The assessors were for acquitting the appellant. That, on the night of Friday the 8th Joist last (20th May); Muddun was murdered in his hut while asleep, and on the following morning his corpse was discovered with a ram-do lying near it, is proved beyond the possibility of a doubt. It appears that the appellant was suspected of having committed this murder, and was arrested by the Police on the 22nd May and challaned on the 30th May. On the 31st May the appellant made a statement to the Deputy Magistrate in charge of the Subdivision within which the murder was committed, confessing his guilt and implicating one Ramkristo Banikya and four other Mussulmans of his village. On the 7th June the Deputy Magistrate, under Section 347 of the Criminal Procedure Code tendered pardon to the appellant, who, having accepted the tender, was examined as a witness in the case, which was prosecuted against Ramkristo and the aforesaid four Mussulmans. The case was ultimately committed for trial in the Sessions Court. In the Sessions trial, which was held by Mr. Kirkwood, the appellant was examined as a witness on the 27th July. His evidence was substantially the same which was given by him before the committing officer. On the 28th July, after the first witness for the defence had been examined, the assessors intimated to the Judge that, in their opinion, the evidence adduced on behalf of the prosecution was not sufficient to warrant a conviction. The Judge, concurring in that opinion, stopped the trial; and on the following day delivered his written judgment, acquitting the persons then on their trial. At the end of the judgment he recorded an order, directing the Magistrate to commit the appellant to be tried for the murder of Muddun, as it appeared to him that the appellant, having been guilty of wilful concealment of essential facts and of giving false evidence against Ramkristo, had not conformed to the conditions under which the pardon had been tendered to him. This order was passed under Section 349 of the Criminal Procedure Code. The appellant was ultimately committed and convicted as stated above. The present Sessions Judge, Mr. Beighton, in support of his conclusion, relies chiefly upon the appellant's statements made from time to time while under pardon, and thinks they are corroborated by the fact that the ram-do, which was found lying near the corpse of the murdered man, is proved to have been purchased by the appellant from a blacksmith, named Ram Gopaul, about fifteen or sixteen days before the occurrence.
2. The learned Counsel who appeared for the appellant before us contended, (i) that the order of Mr. Kirkwood under Section 349, Criminal Procedure Code, directing the appellant to be committed, having been made after the judgment was passed, was not warranted by the provisions of that section; (ii) that, notwithstanding the express provision of Section 349, Criminal Procedure Code, the statements of the appellant, while under pardon, should not have been allowed to be put in in evidence, inasmuch as these statements, amounting to confession of guilt on the part of the appellant, are not relevant under Section 24 of the Evidence Act; (iii) that the finding of the Sessions Judge is against the weight of the evidence in the record.
3. It has been urged by the learned Counsel who appeared before us to support the conviction, that Mr. Kirkwood's order under Section 349, Criminal Procedure Code, is in accordance with the provisions of that section, because it is clear from his judgment that it appeared to him before it was passed that the appellant had not conformed to the conditions under which the pardon was tendered; that the section only requires that the Court of Sessions should come to this conclusion before the judgment has been passed; and that, if this condition be fulfilled, the actual order directing the commitment may be passed at any time without any limitation.
4. I am of opinion that the order of Mr. Kirkwood, withdrawing the pardon to the appellant, and directing him to be committed, was passed contrary to the provisions of Section 349 of the Criminal Procedure Code. It appears to me that the words 'before judgment has been passed' have been inserted in the section with a view to put a limitation in respect of the time within which the power of the withdrawal of the pardon conferred in the Court of Sessions may be actually exercised. This intention of the Legislature would not be attained if we put upon the section the construction for which the learned Counsel who appeared in support of the conviction contends. According to his contention a person, to whom a pardon has been tendered under the provisions of Section 347, may be ordered to be committed by the Court of Sessions after the lapse of any length of time, provided it would appear that, before the judgment was passed, it had come to the conclusion that he had not conformed to the conditions under which the pardon was tendered. It seems to me that this is not a reasonable construction. It frustrates the very object for which this limitation of time is laid down. In my opinion the power of directing commitment conferred by the section in question upon the Court of Session can be exercised only before the judgment has been passed. In this case, therefore, Mr. Kirkwood, after passing the judgment in the case in which the appellant was examined as a witness under the provisions of Section 347 of the Criminal Procedure Code, had no power to withdraw the pardon granted to him, and direct his commitment. The subsequent trial of the appellant is consequently illegal. The conviction cannot, therefore, stand. In this view which I take of this question of law, it is unnecessary for me to express any opinion upon the other objections urged before us against the validity of the conviction. I would, therefore reverse the conviction and direct his release.
5. The appellant, stated in the record to be twenty years of age, was placed before the Magistrate charged on his own confession with abetment of the murder of one Muddun Banikya. The Magistrate thought proper to tender to him a pardon under Section 347 of the Criminal Procedure Code with a view to procuring the conviction of four other persons also charged with the murder. The appellant accepted the pardon, and was examined before the Magistrate on the 7th June last. The other persons were committed for trial, and the appellant gave his deposition on the 27th July. On the 28th July the assessors, at the close of the evidence of the first witness for the defence, intimated that they had made up their minds and did not wish to hear further evidence. The Judge expressed his concurrence, but no finding was recorded on that day. On the following day the assessors' opinions were recorded and judgment delivered, acquitting the persons under trial. At the close of his judgment the Judge recorded that the appellant had not conformed to the conditions under which the pardon was tendered (Section 349, Criminal Procedure Code), and he directed that the appellant should be committed for trial for the offence in respect of which the pardon was so tendered. The appellant was thereafter committed, and has been tried before a different Judge and assessors. The assessors would have acquitted him, but the Judge has convicted him of abetment of murder and sentenced him to transportation for life.
6. Before dealing with the merits of the case two matters have to be disposed of, which Counsel for the appellant have urged against the proceedings before and at the trial.
7. In the first place it was urged, that the order of the Judge, dated 29th July, directing the commitment of the appellant, was not made before judgment was passed, and is, therefore, illegal with reference to Section 349 of the Procedure Code. Counsel for the prosecution urged against this view of the case, that it is not necessary that the order should be made 'before judgment is passed,' as the section requires only that it shall have 'appeared to the Court of Sessions before judgment is passed' that the conditions under which pardon was tendered have not been conformed to. I think the correct view of the section is, that it must appear to the Judge before he passes his judgment that the conditions of pardon have not been complied with, and reading the judgment in this case it is abundantly clear that it did so appear to him. It is impossible to hold that because the actual order for commitment of the accused was written (although in the judgment) after the acquittal, therefore it did not appear to the Judge before passing judgment that there were grounds for his order. The judgment prior to signature must be taken as a whole, as representing the view taken by the Judge of the whole case, and nothing would justify us in dealing with it paragraph by paragraph and founding any conclusion upon the order in which they come. I therefore reject this objection.
8. The next objection is, that the statement of the appellant under pardon, viz., his. deposition on 27th July, was improperly used in evidence against him, although the last clause of Section 349 (Criminal Procedure Code) directs that it may be put in evidence against him. The argument in support of this objection is, that, by Section 24 of the Evidence Act, a confession made by an accused person is irrelevant, if it appears to the Court to have been caused by inducement, threat or promise, etc., and that there is thus a conflict between the Evidence Act, Section 24, and the later Act, Section 349. The appellant's counsel asked us to read the last section as if it contained the words 'provided it is otherwise admissible in evidence.' I must say, that, in my opinion, Counsel asked us to reduce the last clause of Section 349, Criminal Procedure Code, to an absurdity. I can see no connection whatever between the two sections. The deposition or statement made by the appellant under pardon was not a confession made by an accused person. The appellant was not an accused person on the 27th July. He had ceased to be so on the 7th June, when pardon was tendered and accepted. Holding this opinion, I decline to waste any time in considering what are called canons of construction on supposed inconsistencies between an earlier and a later Act.
(The learned Judge, after stating the facts of the case, continued.)
9. In the present case the first point for consideration is, whether the same statement, condemned as false in part and in other respects untrustworthy by the Judge who tried the first case, and again condemned in many respects by the Judge who tried this case, can be accepted as justifying the appellant's conviction.
10. I entertain a very strong opinion that the story told by the appellant is in the main true, and that Muddun Banikya was murdered with the prisoner's dao, and with his knowledge and consent. I share the belief expressed by the two Judges who considered the case, that, as regards Ramkristo Banikya, the statement is false. My impression is, that the dao having been found by the body of Muddun Banikya, the case was so strong against the appellant that he was induced to make such statements as would, while implicating himself in a minor degree, secure, it was thought, the conviction of Ramkristo. Appellant was evidently in the hands of the Police from the 22nd to 31st May; and considering his youth and the pressure to which he was evidently subjected both by the finding of the dao and by the steps taken against his family who were put under restraint, I can quite understand his yielding.
11. I confess, however, that I cannot justify his prosecution. The Judge who directed this committal did so on two grounds--firstly, that he had concealed something essential; secondly, that he had given false evidence. This last ground would have justified his trial for that offence, but nothing has transpired at his trial to show that his evidence was false as regards his own share in the crime. If it is false in that respect, he must be acquitted on the ground that he had nothing to do with the murder. It was not to be expected that he should prove his own perjury, and therefore his silence cannot be unfavourably construed. As for the concealment of essential particulars, I am unable to discover it. It rather seems that he has stated false particulars.
12. The result, therefore, of my consideration of the case is, that this trial has properly ended in a conviction, but it is a trial which ought not to have taken place.
13. But I have, on a previous occasion, held, that this Court had no authority to set aside a conviction in a trial properly held. In the case I refer to, there was much that resembles this case. The appellant had accepted a pardon. The Judge considered his statement false, and ordered his trial. The Bench of which I was a member held, that the appellant's statement was not false, and that the conditions of the pardon had really been complied with. The proper course we then thought to be to uphold the conviction and refer the case to the Local Government with a view to pardon, which was done, and the pardon was granted. On re-consideration, however, I think this Court may itself set aside a conviction made upon a trial improperly originated, and on this ground, I would direct the release of the appellant.