1. In this ease one Lolit Mohan Singh Roy was plated on his trial before the Sessions Court of Hooghly on a charge of murder. The trial was by Jury and by their unanimous verdict the Jury found him not guilty. Accepting the verdict, the learned Sessions Judge acquitted the accused, and against this order of acquittal the Local Government has preferred the present appeal. The person whose death is in question is a young girl or woman, Taralika Debi, the 2nd wife of the accused. She was about 16 years of age while the accused is over 50, and the case for the prosecution is that on the night of the 23rd March 1920, or early morning of the 24th, while they were in their bed-room together the accused, from motives of jealousy, attacked his wife with a sword, inflicting many injuries on her neck, head, face and other parts of her person and causing practically instantaneous death.
2. The first information of the murder was lodged at the Thanah (Pursura) by the accused himself at 7 A.m. on the 24th of March and the main ground taken in this appeal is, that this first information, or all but the first portion thereof, marked 'Bxhibit 21,' has been erroneously excluded from the consideration of the Jury, as amounting to a confession made to a Police Officer.
3. That by reason of the provisions of Section 25 of the Evidence Act the first information is not admissible in its entirety is conceded. But it is contended that the preliminary portions of the first information, giving a history or narrative of events preceding the night of the 23rd of March, are admissible as statements or admissions not being confessions, and that of the 2nd half of the first information, such portions as led to discovery, e.g. in the bed room, of the dead woman's body, the sword and a certain padlock are admissible under the provisions of Section 27 of the Evidence Act.
4. In support of the first branch of this contention reference is made to Section 21 of the Evidence Act and to certain decisions of this Court, more particularly the eases reported as Queen v. Macdanald 10 B.L.R. App. 2; Queen-Empress v. Meher Ali Mullick 15 C. 589 : 7 Ind. Dec. (N.S.) 976 and Emperor v. Kangal Mali 26 Ind. Cas. 161 : 41 C. 601 : 15 Cr. L.J. 713, also the judgment of Carnduff, J., in Barindra Kumar Ghose v. Emperor 7 Ind. Cas. 359 : 37 C. 467 at p. 520 : 14 C.W.N. 1114 : 11 Cr. L.J. 453.
5. On the other hand, on behalf of the accused it is contended that as part of the first information is inadmissible, the whole is inadmissible and that the preliminary narrative should be regarded as merely leading up to the confession and not severable from it.
6. Though, no doubt, when portions of a statement are admitted, the persons affected thereby may demand that the statement should be admitted and considered in its entirety, yet the principle that portions of a statement or confession may be admitted and others excluded is recognised in the Evidence Act itself (e,g., Section 27) and also in the cases cited in support of the appeal. We are, therefore, of opinion that, as contended by the Crown, the first information, in so far as it speaks of events prior to the eight of occurrence, i.e,, down to the words 'I have not been successful,' if and when proved, is admissible in evidence.
7. With regard to the second branch of the Crown's contention, the principle enunciated in Section 27 of the Evidence Act cannot be disputed. But one of our difficulties here is that the first information was excluded at the outset of the trial and before any evidence had been taken. The examination of the Police Officer or Officers has, therefore, not been directed to the provisions of Section 27 of the Evidence Act. All we can say, therefore, on this point is that if and when certain facts are deposed to as discovered in consequence of information received from the accused when in custody of the Police, so much of the information as relates distinctly to the fact or facts thereby discovered will become admissible.
8. On the point of discovery we may refer to the case reported as Surendra Nath Mukerji v. Emperor 47 Ind. Cas. 659 : 19 Cr. L.J. 935 at p. 937 : 16 A.L.J. 478 though with all deference to the learned Judges who decided that case, we should say that in our opinion the words 'I have killed my wife' should not have been treated as admissible.
9. On behalf of the accused it is here contended that when facts are already known to persons other than Police Officers, such fasts cannot be said to be discovered in consequence of information received within the meaning of Section 27 of the Evidence Act. We are unable to accede to this contention. The language of the section and its place in the Evidence Act, in our opinion, make it clear that the discovery therein referred to is discovery to or by Police Officers, and in support of this view we may refer to the one of Adu Shikdar v. Queen Empress 11 C. 635 : 5 Ind. Dec. (N.S.) 1182.
10. On the point of custody we may refer to the provisions re 'submission' in Section 46 of the Code of Criminal Procedure, Sub-section (1).
11. The second contention on behalf of the Crown is that the learned Sessions Judge has improperly admitted evidence of opinion and the third contention is that he has similarly admitted evidence of rumour, In the cross examination of prosecution witness No. 3, Debendra Nath Singh Roy, who is the accused's brother-in-law and was defraying the expenses of the defence, the witness was permitted to say: 'I had no talk about the evidence in the case with Mr. Roy (Counsel for the defence) beyond this that Mr. Roy said he did not find any evidence in the case.'
12. Similarly prosecution witness No. 30, Satish Chandra Singha Roy, accused's cousin, was permitted to say in cross examination: 'The reply I gave was It is a case of a man killing his mistress' (or 'of a fight between a man and his mistress) I had heard this from Jogendra Mullick. I spoka to Nitai about this, Nitai said that he also had heard about it.'
13. The introduction of defense Counsel's opinion of the value of the evidence, and of the above hearsay statements regarding the nature of the occurrence in question, is clearly reprehensible and the absence from the Judge's charge to the Jury of any caution against the attaching of any value thereto is to be regretted.
14. It was next contended on behalf of the Crown that in the charge to the Jury the Sessions Judge misdirected them by saying: 'There is no evidence adduced before you to show that the accused Lolit had actually slept in that room that night.'
15. Now on the 25th of March the accused was produced before a Deputy Magistrate, Jnanendra Nath Banerji, prosecution witness No. 32. The accused made no confession and the statement which he did make was for that reason not recorded in the manner provided in Section 164 of the Cole of Criminal Procedure. There being no record, the Deputy Magistrate was then required and permitted to give oral evidence regarding the statement made to him by the accused. Inter alia he deposed that the accused said to him that he (the accused) had slept that night with his wife.
16. The Crown relies on this part of the Deputy Magistrate's evidence, while the defense contends that the whole of the Deputy Magistrate's evidence, in so far as he speaks of the unrecorded statement made to him by the accused, is inadmissible. In support of their contention the defence relies on the decisions of this Court reported as Queen-Empress v. Bhairab Chunder C huc(Sic)erbutty 2 C.W.N. 702 at p. 703; King Emperor v. Rajani Kanto Kosr 8 C.W.N. 22 : 1 Cr. L.J. 10 and Amiruddin v Emperor 44 Ind. Cas. 321 : 45 C. 557 : 22 C.W.N. 213 : 27 C.L.J. 148 : 19 Cr. L.J. 305. On behalf of the Crown it is contended that the word 'statement' in Section 164. Sub-section (l), of the Code of Criminal Procedure refers to statements made by persons appearing as witnesses and that the section has no application in the case of statements not being confessions made by accused persons. In support of this contention the learned Advocate-General cites the case of Queen-Empress v. Bhairab Chunder Chuckerbutty 2 C.W.N. 702 at p. 703. But this view has not been generally accepted and following the cases reported as King-Emperor v. Rajani Kanto Koer 8 C.W.N. 22 : 1 Cr. L.J. 10 and Amiruddin v. Emperor 44 Ind. Cas. 321 : 45 C. 557 : 22 C.W.N. 213 : 27 C.L.J. 148 : 19 Cr. L.J. 305,we must hold that in this respect no distinction can be drawn between a statement made by an accused person and a confession made by him. It follows that the statement made in this case should have been recorded as provided in Section 164 and that the Deputy Magistrate's evidence regarding the unrecorded statement is inadmissible. In the result there was on this point no misdirection.
17. Lastly, it has been contended that the Judge's reference in the opening passage of his charge to the punishment provided for the offence of murder, and the consequent need for careful consideration, involves a misdirection. Personally we are of opinion that to suggest that in capital cases stronger evidence or a higher degree of certainty is required than in other criminal cases is wrong, but we need not hold that what was said by the Judge in the present case amounts to a misdirection.
18. Having regard, however, to the just grounds of complaint advanced by the Crown, and more particularly the manner in which the first information was dealt with, we must set aside the order of acquittal and direct that the accused be re-tried. The re trial, we further direct, will take place before the Additional Sessions Judge of Hooghly sitting at Howrah.
19. The accused will now be called upon to surrender to his bail in the Court of the District Magistrate of Hooghly. On his thus surrendering he may make such further application in the matter of bail as he may be advised.
20. I agree.