1. The appellant, Nathu, has been convicted of murder by the learned Sessions Judge and baa been sentenced to death. He has also been found guilty under Section 450, Penal Code, and sentenced to four years' rigorous imprisonment. He has, further, been found guilty under Section 394, Penal Code, and sentenced to the sama terms of rigorous imprisonment. The sentences, under Sections 450 and 394, Penal Code, have been directed to run concurrently.
2. The appellant No. 2, Padam Pal, has been convicted under Section 450, Penal Oode, and sentenced to four years rigorous imprisonment. He bas also been found guilty under Section 397, Penal Code, and has been sentenced to seven years rigorous imprisonment. The sentences are directed to run concurrently.
3. The appellant No. 3, Ganga Ram, has been found guilty under Section 450, Penal Code, and has been sentenced to two years' rigorous imprisonment. He has also been convicted under Section 394, Penal Code, and has been sentenced to the same terms of imprisonment. The two sentences are directed to run concurrently.
4. Sis Ram, the deceased, was staying with his wife, Mt. Debku, P. W. 1, in his 'Dochi' (farm-house), about a mile and a half from his residence in village Basal, in the State of Baghat on the evening of 5-3-1947. He had just finished his meal when his dog barbed. His wife went out to see who was there. She did not see any one in the dark, and returned to tbe kitchen, but was closely followed by three accused persons, with cloths wrapped across the face to conceal their identity. It is alleged that appellant 3, Ganga Bam, caught hold of the hands of Mt. Debku and Padam Pal, appellant 2 tore off earrings from her ear-lobes, causing them to bleed. Then, three of them caught Sis Ram, deceased, throwing Mt. Debku on the ground. They commenced to beat both the husband and wife and threatened them with pocket knives. They took Sia Ram and his wife to the adjoining room and with the keys, which were offered to them by Mt. Debku, opened the boxes. Mt. Debku had, on her person, Rs. 11-10-0 (Rupeea eleven and annas ten) only, which the accused persons took away from her. The boxes were opened and clothes scattered oa the floor but as no jewellery or ornaments were found, the appellants again used threats and violence. Upon this, Sis Bam, deceased, told them that the valuables were in their residential house in village Basal, and as this was their farm house, they did not being any gold or silver with them. The robbers held a consultation and it was decided that two of them, Padam Pal and Ganga Bam, appellants 2 and 3, should accompany Mt. Debku, P. W. 1, to the village and obtain the valuables, meanwhile her husband Sis Bam, having to remain behind as a 'hostage' in charge of appellant l, Nathu Ram.
5. According to this plan, Mt. Debku, P.W. 1 accompanied by appellants 3 and 3, Padam Pal and Ganga Bam, left the farm-house. But these two robbers did not accompany her upto the residential house. A short distance from the village, they lay in waiting, while Mt. Debku, was directed to go quietly to her house and fetch the jewellery.
6. Mt. Debku, P. W. 1, took courage in her both hands and immediately on arrival at her house in the village, informed her tenant, Sangatia, P. W. 3, who went to inform the neighbours. An alarm was raised and the people of the village collected and Shiv Ram P.W. 5, undertook to fetch the police from Solan (capital of Baghat State, situated at a distance of about two miles from Basal). Others proceeded to the 'Dochi' (farm-house) with Mt. Debku.
7. Meanwhile, an unexpected development took place at the 'Dochi' Sis Bam, a man of about fifty five years, of small stature with a bandage over his left eye, on account of some previous eye-trouble, was feeling desperate. He took advantage of slight relaxation of the watch and managed to lay his hands on a khukri under the pillow of his bed. He whipped out the kkukri from its sheath and attacked Nathu, appellant 1, who was momentarily taken aback. In the fight that ensued, it is alleged by the prosecution, Nathu Bam received several injuries on the face, but eventually, he overpowered his assailant and wrested the khukri from his hand, hit him on the head, shoulders and face. Sis Bam fell down in a dazed condition and Nathu Bam, it ia alleged, burnt a portion of Mt. Debku's pyjama in the fire and applied to his bleeding wound its ashes, known in these parts as a first aid, At this time, Padam Pal and Ganga Bam, appellants 2 and 3, appeared and warned bim to get away, as an alarm had been raised in the village. According to the prosecution, Natbu Ram removed a pattu (homespun woolen cloth) to cover his injuries and removed tbe sheath and the khulcri, which he threw a short distance from tbe house into the buses down in the path way. The prosecution further alleged that Nathu Ram felt weak and disabled through loss of blood. He spent the night with Ganga Bam in the woods adjoining his village, Dewar, near Dharampur, in Patiala State, while the accused, Padam Pal, went ahead to prepare Nathu's mother by telling her that Nathu had a fall from a lorry.
8. The main story of the prosecution, nest, proceeded as follows : the villagers arrived and found the door chained from outside. They removed the chain and entered and saw Sis Ram lying on the floor with blood round about him. They removed Sis Bam to another room, made him comfortable and gave him a little water to drink, and washed his face and head with water. Sis Ram recovered consciousness and related the story how be had attacked the robber and how he wanted to kill him, thinking that his wife must have been done to death by the other two robbers. Before the police arrived, Bam Rattan, P. W, 2, and Hem Bam P. W. 4, and others heard his statement. Meanwhile, Sangatia, P. W, 3, left to fetch Dr. Ved Prakash from Solan. On his way to the doctor's house, he met the police proceeding to the scene of occurrence.
9. On arrival, Shree Narain Dev, Assistant Sub-Inspector of Police, proceeded to record the dying declaration. Soon after Dr. Ved Prakash arrived. He gave all the aid that he could, in the circumstances. Sis Ram died, sixteen hours afterwards, without gaining consciousness, at about 4 P. M.. the next day, that is, 6.3.1947.
10. Dr. Miss Grewal held the post-mortem examination at Solan. According to the medical evidence and the post-mortem report, there were altogether nine injuries but it was the seventh injury, which alone was enough to cause death in the ordinary course of nature, this injury having been described aa a clean cut wound, three and a half inches long, over the vertex of the skull, in a line drawn from an inch in front of the right ear to the middle of left ear, extending from sagittal suture in the middle and downwards to the right. It had cut the skull and gone into the brain. The three other in juries are worth mentioning, namely, (1) a clean cut wound six and a half inches long, extending from the middle of left eye brow to one inch above and behind the left ear; (2) a clean cut wound five inches long, extending from the left comer of the left eye-brow towards the left ear and (3) a clean cut wound two and a half inches long, passing through the soft tissues deep down to the jaw. The other minor injuries were located near about the left ear. There were two clean cut wounds over the dorsum of the left hand, measuring two and a half inches by one and a half inches. According to the medical evidence, it is the injury, number seven, that cut the skull deep into the brain that, very likely, caused the death.
11. The doctor was of the view that a person receiving such injuries could regain consciousness for a while, if there had not been enough loss of blood.
12. The accused, that dealt these blows with the khukri, had so managed to conceal his face that the victim was not able to observe who his assailant was.
13. It is worth remembering that this incident happened when Baghat was still one of the Simla Hill States and on its north, lay Kandaghat (Patiala), Simla and on the south, Dharampur (Patiala State).
14. On 21-9-1917, a fortnight after the commission of the crime, Nathu Ram, appellant 1, was arrested at the Bipon Hospital at Simla, with the help of the Punjab Polioe, having been suspected of being implicated in the outrage. Working upon the clue obtained from Nathu Bam, Padam Pal and Ganga Bam, appellants 2 and 3 were arrested on 22.3-1947, at their village, Dewar, within Dharampur. Between 22nd March and 4th April 1947, the discoveries were made at the instance of the accused persons, by the Baghat police, accompanied by Rulia Kam of the Patiala police. On 4.4-1947, the confessions of Ganga Bam and Padam Pal were recorded by Shri Gita Bam, Magistrate First Class, Solan, and as the accused persona were to be formally surrendered by Patiala State after clue extradition proceedings, they were immediately returned to the Nazim or the District Magistrate of Kanda-ghat for being kept in the judicial lock-up,
15. It ia important to remember, at the state, that Nathu Bam, on extradition from the Punjab, was released on bail by the committing Magistrate. Padam Pal, appellant 2, had been released on bail by the Patiala Court, during the extradition proceedings. On 1-10-1948, Ganga Bam appellant 3, was extradited and placed before the Court of the Committing Magistrate, Solan (Baghat). On 22-10-1948, Padam Pal was extradited. He was enlarged on bail by the committing Magistrate. On 5-11-1948, the challans were produced before the Court and the case was ad. journed. On 22-11-1948, Ganga Bam, appellant 3, was released on bail.
16. The commitment proceedings commenced on 28-12-1948, when two witnesses for the prosecution were examined the next day. The examination of twelve prosecution witnesses was over the following day. On 31-12-1948, Padam Pal, who, amongst the three accused persons, could read and write, made an application before the Magistrate, retracting his confession. From the record, it appears that he had been represented by a counsel since 22-10-1948.
17. On 30-7-1949, upon the closing of the prosecution case, the accused persona were examined under Section 342, Criminal P. C., by the committing Magistrate, when Ganga Bam, appellant 3, retracted his confession.
18. On 26-8-1949, the accused persons were committed for trial and the trial commenced on23-12-1949.
19. The defence of all the accused persons was that they were falsely implicated in the crime.
20. The learned Sessions Judge, agreeing with the unanimous opinion of the assessors, in a very careful and well-balanced judgment, ex-amined the confessions and the circumstantial evidence very carefully and held all the three accused persons guilty under different sections of the Penal Code, as stated above and sentenced Nathu Bam, appellant 1, to death. The other sentences under Sections 450 and 394, Penal Code, which he imposed on Nathu Ram have been stated above. He sentenced Padam Pal and Ganga Ram, appellants 2 and 3, to different terms of imprisonment, which have also been stated above.
21. Counsel for the appellants have not criticized, in any way, the charges, as framed, nor the sentences passed. They have confined their arguments entirely to broad question, whether the evidence, on the record, justifies the conclusion that the accused persons were concerned in the crime.
22. The learned counsel for the appellants have taken some major and minor points regarding the evidence on the record.
23. I shall proceed to deal with the minor points first.
24. They impugn the first information report, Ex. P-A, According to their contention, the report, Ex. P-E, ia the first information report, which the police recorded at the instance of Shiv Bam, P. W. 5, who was directed to fetch them. The consideration of the first information report has become a subject of controversy, in view of the fact that the report, Bx-P-A, embodying a list of stolen property given by Mt. Dabku, wife of the deceased, bears a suspicious alteration of the date recorded therein. According to the contention of the appellants, this alleged first information report, EX. P-A, recorded soon after the dying declaration, comes within the mischief of Section 163, Criminal P. C. A large number of authorities have been cited at the Bar. I need refer only to a few of them; Fulbash v. Emperor, A. I. R. (16) 1929 Cal 443: (31 or. L. J. 127); Sucha Singh v. Emperor, A. I. R. (19) 1932 Lah. 488: (34 Cr. L. J. 379) and Amar Singh v. Crown, A. I. R. (36) 1949 E. P. 316 ; (50 Cr. L. J. 794). In the last case, Harnam Singh J. has referred to the first two cases and has followed them. I have gone through these authorities very carefully, and I find that a full report had been made by the complainant and upon that complaint, the investigation commenced and hence a list during the investigation was considered to have been hit by Section 162, Criminal P. C.
25. Counsel for the State refers to BhonduV. Rex, A. I. R. (36) 1949 ALL. 364 : (50 Cr. L. J,561). It was held by Wanchoo and Agarwala JJ. as follows :
'The mare faat that an investigating Officer starts from the police station to the scene of occurrence after the lodging of the first information is not commence-ment ot the investigation. The first information report lodged with the police may not be a complete document. If during the interval between the first informa-mation and taking of some steps in the nature ot investigation, something, which may legitimately be considered to be an information supplemental to the first information, ia lodged with the police, it need not necessarily be considered to be a statement made during the coarse of investigation...... If after the first information report regarding the theft which report mentions merely the fact of the theft without giving a list of articles stolen or names of culprits suspected, the complainant hands over a list of stolen property, as soon as the Sub-Inspector arrives on the spot for investigation, such a list is not covered by Section 162, Criminal F. C., bat is a part oE the 0ret information report under 8.154, Criminal P. C., and IB admissible in evidence.'
Their Lordships discussed fulbash v. Emperor, A. I. R. (16) 1929 Cal. 448 : (31 Cr. L. J. 127), Sucha Singh v. Emperor, A.I.R. (19) 1932 Lah. 488: (34 Cr. L. J. 379) and Zahiruddin v. Emperor, A. I. R. (34) 1947 P. C. 75 : (48 Cr. L. J. 679), or in other words their Lordships discussed those oases which were relied upon by counsel for the appellants. In the Privy Council case, cited above, Zahiruddin v. Emperor, A. I. R. (34) 1947 P. C. 76 : (48 Cr. L. J. 679). a witness had given a signed statement to the police and made substantial use of this statement while giving evidence. This written statement was given to the police during investigation. It was given three months after the events with which it dealt and hance their Lordships held that it was made to the police in the course of their investigation, as contemplated by Section 152, Criminal P. C.
26. Counsel for the State baa referred to another authority, Suba Chaudhary v. The King, A. I. R. (37) 1950 Pat. 44; 61 Cr. L. J. 331), in which a first information report was laid and the Sub-Inspector commenced investigation and while arriving at the hospital to see the dead body, he came across the accused persons, who had been admitted as indoor patients. He then recorded the statement of the accused which was, exculpatory and instituted another first information report on the basis of this statement. It was held that the statement of the accused persons was nob hit by Section 162, Criminal P. C. The facts of this case have no bearing upon the present case. But I find that the correct interpretation of 'in the course of investigation' found ia Section 162, Criminal P. C., has been given by theirLordships in Bhondu v. Rex, A.I.R. (36) 1949 ALL. 364 : (50 Cr. L. J. 561) and it has, in my opinion, the support of the Privy Council authority in Nazir Ahmad v. Emperor, A. I. R. (32) 1946 P. c. 18 : (46 Cr. L. J. 413), wherein their Lordships have observed as follows :
'The; see no reason why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence has been committed, should not of their own motion undertake-an investigation into the truth of the matters alleged. Section 157, Criminal P. C., when directing that a police officer who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156 has been committed, shall proceed to investigate the facts and circumstances, supports thia view. In truth, the provisions as to an Information report (commonly called a first information report) are enacted for other reasons. Its object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished, and it has to be remembered that the report can be put in evidence when the informant is examined if it is desired to do so.'
27. There are other considerations which will weigh in a Court of law, namely, Shiv Ram, the informant, only informed the police that a cognizable offence (robbery) had been commit-ed. He heard from lambardar and ran to Solan o lodge the information. On arrival at the 'Doohi', Narain Dev, Assistant Sub-Inspector, found a new development which considerably altered the character of the information received from Shiv Bam, P, W, 6. He recorded the dying declaration, and soon afterwards, Mt. Debku, P. W. 1, gave a list of stolen articles. The first information report, in my opinion, is the dying declaration of the deceased, Sis Ram, and simultaneously with it the list was furnished by the deceased's wife, Mt. Debkn. There is one grave objection tbat the date on this list, Ex. P. A., has been superimposed by another date. Hem Ram, P. W. 4, states that he signed this document soon after the dying declaration had been recorded. The date on Ex. P. A purported to be 1-4-47 instead of 6-8-47, as it was intended to be. I do not think that Ex- P. A. comes within the prohibition of S. 162, Criminal P. C., but the date on it gives the whole document a doubtful colour. If it were really an interpolation, that is, if it were really made on 1-4-1947, and later on, this date was scored and 6-3-47 was substituted, then this document, Ex, P. A, is not admissible on the authority of the Privy Council in Zahiruddin v. King, A.I.R. (94) 1947 P. 0, 75 : (48 Cr. L. J, 679), on the ground that it was made about a month later on. I would, therefore, prefer the evidence of Mt. Debku, p. w. 1, and Hem Ram, P. W. 4, and the identification of stolen property by Mt. Debku to this document.
28. Counsel foe the appellants next impugned the evidence of Narain Dev, given before the committing Magistrate, which was subsequently transferred to the record of the trial Judge. Counsel argue that the provision of Section 33, Evidence Act, has not been complied with. The learned counsel for the State draws my attention to the summonses issued to Narain Dev at the address known to Government. Upon the merger, he was transferred to Chopal in Mahuau district of Himachal Pradesh, Later on, he retired from service and the only address given by him is village Mohammadabad in the district of Farrukhabad in Uttar Pradesh. Prom the order-sheet, it appears that on 19.10.1949, the learned Sessions Judge requested the committing Magistrate to summon Narain Dev before the Court of Session on 26th December. Till 24-12-1949, that is, two days prior to the date fixed for his appearance, the summonses were not returned served. The learned Sessions Judge adjourned the trial directing the Magistrate to ascertain the correct address of Shri Narain Dev. A special messenger was sent to Moham-madabad. Mohan Lall, constable No. 839, of the police-station Solan, left with the summonses on 22-8-1950. He gave evidence, on oath, before the Court of Session that he had gone to Mohammadabad and with the help of Tulsi Ram constable and Ram Singh lambardar of Mohammadabad, made every endeavour to locate the place of residence of Shri Narain Dev, but failed to find him or his address, Counsel for the appellants contend that the prosecution should have made better attempts to summon Narain Dev, who is an important witness.
29. The principle underlying Section 33, Evidence Act, has been explained by their Lordships of the Privy Council in Chinchal Singh v. Emperor, A. I. R. (33) 1946 P. C. 1 : (I.L.R. 1945 Kar. P. C. 66).
'Where it is deaired to have recourse to this section (Section 33, Evidence Act) on the ground that a witness ia incapable of giving evidence, the fact must be proved and proved strictly .... In a criminal case atrict proof ought to be given that the witness is incapable of giving evidence.'
30. This authority dealt with a case of a witness being incapable of giving evidence due to illness. In my opinion, the same principles apply to a case where the presence of such a witness cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable, as laid down further by Section 33, Evidence Act.
31. In my view, the prosecution has been able to prove that serious attempts were made to obtain the presence of this witness. The learned Sessions Judge also took all precautions in this matter and recorded the evidence of the special messenger, who was Sent for the purpose. In my opinion, the contention of counsel for appellants fails as strict proof has been given that the presence of Narain Dev cannot be ob-tained without unreasonable delay or expense, and I hold that the evidence of Narain Dev, recorded by the committing Magistrate, hag been rightly transferred to the record of the Sessions Judge, especially, in view of the fact that this witness was cross-examined at length by the learned counsel for the appellants, before the Court of the committing Magistrate.
32. After having disposed of these two minor points of attack, I propose to deal with the major questions, namely, (1) the dying declaration, (2) the discoveries and (3) the confessions, in relation to which counsel for the appellants challenge the judgment of the trial Court.
33. The dying declaration, as recorded by Shri Narain Dev, who first took up the investi-gation, has been condemned on two grounds; firstly, that Narain Dev's evidence was improperly transferred to the record of the trial Judge, I have already disposed of this contention holding that the evidence of Shri Narain Dev has rightly been transferred. Shri Narain Dev had proved the dying declaration in the Court of the committing Magistrate. Secondly, it was improbable that the deceased could have gained consciousness in order to make any statement. This is a question of fact. I have already discussed the medical evidence, which touched upon this point and according to which, the deceased could gain consciousness, if there had not been enough loss of blood. The word 'enough' is very difficult to assess, Shri Bhagat Singh Chawala has referred me to the text-books on Medical Jurisprudence and argued that it was impossible for the deceased to have regained consciousness after having received such injuries. But while arguing on this point, counsel for the appellants forgets that there was only one injury which would, in due course, cause death. Further, there is the evidence of Ram Rattan, P. W. 2, and Hem Bam, P. W. 4, to whom the deceased had made a statement, corroborating in all its details the statement subsequently reduced in writing and bearing his thumb-impression. It has been argued that the deceased mentioned in tbe recorded dying declaration that when be became unconscious and fell down, his assailant burnt a piece of pyjama and applied the ashes on his wounds. I have carefully examined the wording to tbis effect. These words are not in sequence of his falling down unconscious. On the contrary, these words stand alone and are the consequence of his endeavour to relate the salient points of the straggle. I do not find anydiscrepancy, upon which counsel for the appellants lays great stress. Ram Rattan, P. W. 2 and Hem Bam, P. W. 4, state that the deceased said that he could not identify his assailant bat he had delivered blows with his khukri on his person and caused him serious injuries. I have compared the written as well as the oral statements, very closely, and in my opinion, the recorded dying declaration bears on it nothing that has not been heard by the two witnesses, Ram Battan and Hem Bam, P. Ws. 2 and 4. I concur in the reasonings given by the learned Sessions Judge that the dying declaration has been proved, beyond all reasonable doubt, and that it can be taken into consideration along with other circumstantial evidence against the accused persons.
34. I wish to mention particularly that in the recorded dying declaration, the deceased stated tbat he had wanted to kill the robber and for this purpose, he attacked him. He was, however, aoon overpowered and in return, received one fatal injury on the head, which, according to the medical evidence might, in the ordinary course of nature, cause death. The other injuries were Dot fatal. Sis Ram succumbed to the injuries at about 4 P. m., on the 6th March, sixteen hours after the incident. The credit of Sis Ram, the deceased, may under Section 158, Eviddnce Act, be impeached or confirmed in the same way as that of a witness actually examined in Court. A dying declaration falls within Sub-section (1) of Section 32, Evidence Act. The rule admitting a dying declaration is also subject to the rule against hearsay. It is immaterial to whom the declaration is made. The declaration may be made to a police officer, Rahman v. Emperor, A. I. R. (19) 1932 Lah. 14: (32 Cr. L J. 1118), or to a pri-vate person. It does not become in admissible by reason of its having been made in the course of the investigation. A dying declaration may be oral or it may be reduced in writing by any other person but in either casa, it must be duly proved. Bearing in mind these broad principles, it appears to me to be an appropriate case in which Narain Dav's statement before the committing Magistrate, in proof of the recorded dying declaration, was properly admitted to the Sessions record, under Section 83, Evidence Act, see Tafis Pramanik v. Emperor, A. I. R. (17) 1830 Cal 228 : (31 Cr. L. J. 916). (His Lordship then discussed the evidence of witnesses and proceeded :)
35-41. These dying declarations, taken with the evidence of Mt. Debku (P. W. 1) and Ram Rattan and Hem Ram, (P. Ws. 3 and 4) prove conclusively that they were three persons, who bad covered their faces with cloth, entered in the wake of Mt. Debku, into the 'Dochi' andtee off her ear-rings, ransacked boxes and out of them, two accompanied Mt. Debku out of the bouse, leaving the third person on guard over the deceased. They further prove that the deceased made a violent assault with a khukri on the third ruffian, who, however, managed to wrest it from his hand and dealt with it overpowering blows on him. They have further proved that the robber received serious injuries and burnt cloth and applied ashes to his wounds. When he left, he removed the khukri, its sheath and a piece of pattu and chained thedoor from outside.
42. The discovery of the two pugrees has next been challenged. It is contended that thecolour of one ia not black, as stated by the dying man or Mt. Debku. It ia of dark blue colour like blue-black ink. The other pugree is of onion or magenta colour. Both the pugreeswill, in my opinion, look dark, seen in the fitful light of a country lamp. I do not find much force in this contention. Even if a pugree, as contended by counsel for appellants, slipped during the struggle, it is evident that the deceased did not recognize the wearer of it, otherwise hewould have stated so in his verbal arid writtendying declarations. The learned Sessions Judge has rightly dismissed the statement of Mt. Debku that she remembered, after the incident, that the face of the youngest of the ruffians appeared tobe familiar and it waa this youth, who had come with others to see her when she waa confined in the Simla hospital for an operation.
43. The bearing of tha discovery of these two pugrees on the case will be better understood, when the confessions of Padam Pal, appellant 2 and Ganga Ram, appellant 3, are discussed.
44. Let me recall here that on 21.3-l947 Nathu, appellant 1, immediately upon his discharge from the Ripon Hospital, Simla, was arrested. Dr. Mukand Lal, P. W. 21, in charge of the hospital, stated from the register that Nathu had been admitted on 10-3-1947, Nathu gave the story that he had a fall from a tree, while cutting would, four days buck. Nathu used to cover his face when the witness went on his round and never asked questions, as usual with the patients. This pecularity, he remembered, when the police arreated Nathu. According to him, the injuries were incised wounds, whichcould not have been caused by a fall from a tree. This evidence proves that Nathu received the injuries four days before his admission into the hospital, corresponding to the date on which the prosecution alleges the occurrence to have taken place. The position of the injuries and they were caused four days previous to his admission and attempt at concealment of his fac arecircumstantial evidence and form links in the chain of proof.
45. On 22-3-1947, Padam Pal and Ganga Ram, appellants 2 and 3, were arreated in their homes. It is in evidence that Padam Pal is a grasa-cutter and lives on selling the grass, which he cuts. Immediately upon the arrest of the accused persons, their persons were searched. A sum of Rs. 177-6 6 (Rupees one hundred and aeventygeven annas six and six pies) was recovered from the person of Padam Pal and a sum of Rs. 47-11-6 (Rupees fortyseven annaa eleven and six pies) was recovered from the person of Ganga Ram and these recoveries are admitted by these accused persons, who have not explained how each of them came by such a large sum of money.
46. On 22-3-1947, the house of Nathu Ram was searched and a blood-stained pyjama and a blood stained woollen muffler and a shirt were recovered. They were sent to the Chemical Examiner and the report is that the pyjama and the woollen muffler contained human blood bull not the ahirt. In his examination under Section 848, Criminal P. C., before the trial Judge, Nathu admitted these properties to be his. But he explained that before he fell from the tree, he had put them on and they contained his blood. The muffler bore a small clean cut.
47. An objection has been taken in this Court by counael for the appellants that the search witnesses were juat 'chance' witnesses and did not belong to the locality. The lambardar, Kirpa Ram D. W. 1, of the locality was not present. I have looked into this objection and I find that is not based on the evidence on record. Rulia Ram, constable of Patiala State, was present during the search. He called in Pratap Singh, P. w. 12 and Din Dayal, P. W, 14. There waa a lambardar present, whose name waa Nek Ram, P. W. 19. This lambardar is a neigh-bour of the accused peraona. On behalf of the defence, Kirpa Ram. D. W. 1, the lambardar of the locality, has admitted that his home is at a distance of nine miles from the village. He haa farther stated that the three accused persons belong to the village, Dewar, and they are close neighbours. The Bhagat police had no hand in choosing the search witnesses.
48. In Malak Khan v. Emperor, A. I. R. (33) 1946 P. C. 16 ; (47 Cr. L. J. 489), an objection was raised with regard to the manner of the search as also with regard to the search witnesses. Their Lordships were considering the case of an accused who himself produced the stolen articles. It was held
'the presence ot witnesses at a search is always desirable and their absence will weaken and may some time, destroy the acceptance of the evidence as to thafinding of the articles, but their attendance at the search is not always essential in order to enable evidence as to the search to be given. ........ Therewould be no necessity to call either of the witnesses to search having regard to the express terms of Sub-section (2) of Section 103, Criminal P. C.'
49. I do not attach much importance to this objection. The recovery of the pyjama and brown woollen muffler, bearing a small clean cut and human blood and the shirt claimed by Nathu, appellant 1, is of great importance, if the prosecution can prove that the blood was not due to the injury received from the fall from a tree. The prosecution has so far proved, from the medical evidence, that the injuries on the person of Nathu could not be due to a fall from the tree. This is another link in the chain no doubt but it requires elucidation, which is given below.
50. On 24-3-1947, Padam Pal, appellant 2, takes the police to Simla and at hig instance, the discovery of the sale of the ear-rings to one Manghi Ram, P. W. 17, a jeweller, was made. The evidence of Manghi is that he recognized Padam Pal, appellant 2, on the dock, who had twice sold some pieces of broken ear-rings and for which the witness made him two payments of Rs. 213-12 (Rupees two hundred and forty-three and annas twelve) and Rs. 69-6 (Rupees sixtynine and annas six). He had melted the pieces before the police came to his shop with Padam Pal. He has produced an account book and there are two entries therein in English and signed as 'Nand Kiehore' and the payment Rs. 69-6-0 is dated 17-3-1947.
51. Objection has been taken to the account book that it is not one that is regularly kept in the course of the business. The learned Judge asked Padam Pal, appellant 2, to write his name in English and compared his signature with 'Nand Kishore' borne on the book. I have examined the page of the accounts books in question, and though there are entries relating to other transactions yet these two entries do not appear to me to be evidence that can be used against Padam Pal. The account book is kept in English and Manghi Ram, P, W. 17, admits that be does not know how to read and write English. Moreover, Padam Pal is alleged to have signed as 'Nand Kishore'. The test, which the learned Sessions Judge applied, cannot prove that Padam Pal wrote the name 'Nand Kishore'. It might be actually misleading as observed by the Judicial Committee in Jaswant Singh V. Sheo Narain Lal, 16 ALL. 157 at p. 162: (21 I. A. 6 P. C.),because Padam Pal, appellant 2, would have a motive for distinguishing his hand. I reject this portion of the evidence and agree with the contention of counsel that a piece of melted gold cannot be considered to have been originally broken pieces of ear-rings. Manghi Ram's evidence may, at best, prove that he recognized Padam Pal as the person who had twice visited his shop. But the recovery of such a large amount as Rs. 177-6-6 from the person of Padam Pal and Rs. 47-11-6 from the person of Ganga Bam can only be looked upon as circumstantial evidence, which, if analysed, may be incompatible with the innocence of the accused persons. It has been suggested that because Padam Pal tore off the earnings himself, he kept the major share of the proceeds. This will also be borne in mind, when the circustance of possession of this large sum of money is proved by other evidence.
52. I proceed, next, to other discoveries.
53. On 27-3-1947, the pugreas mentioned above were recovered from the house of Ganga Ram. At the instance of Ganga Bam, appellant 3, pattu cloth was recovered buried under a stone in Neri Nali (water-course) in the laud of Padam Pal, appellant 2. It was found twisted and it bad a tear at one end by which it was identified by Mst. Debku. On the same day, at the instance of Ganga Ram, a partly burnt coat, charted by fire and some ashes, were recovered from the ground in the ghati near the house of Padam Pal, appellant 2. Nathu, appellant l, denies wearing a coat or the burning of a coat. According to the Chemical analysis, the bloodstains on the coat have been 'disintegrated'. The contention of the learned counsel for the State is that Nathu wore the coat and therefore, the shirt did not get any blood mark. It is not possible for the pyjama to get the stain of blood without the shirt having the same from bleeding injuries on the face, unless a coat was worn, either at the time of the alleged accident of the fall from the tree or at the time of the alleged souffie.
54. On 1-4-1947, the discovery of khukri and its sheath (EXS. p. 3 and P. 4) was made at the instance of Nathu, appellant 1. They were recovered from some bushes near the curve of the path, at a short distance below the house of Sis Ram, deceased.
55. Counsel for the appellants have pointed out to a single statement of Shiv Ram, P. W. 13 stated that Ram Battan, P. W. 2, picked up the khukri and the delivered it to the police and that the khukri was about three, fourth inside the sheath at the time. When the discovery list was read out to him, he immediately corrected his mistake and stated that the discovery list was correct and that khukri and its sheath (EXS. P. 3. and P. 4) were lying separately. I do not think that this slight discrepancy is of much value. The trial took place nearly three years after the incident. Under Section 159, Evidence Act, a witness may, while in examination, refresh hismemory by referring to any writing made by himself. Bam Rattan, P. W. 2, has stated clearly that the khukri and its sheath (EXS P. 3 and P. 4) were lying apart. This slight discrepancy on the part of Shiv Ram. p. w, 13, cannot detract from the value of evidence of Bam Rattan, P. W. 2, and of himself too, when he admits that the fard is correct and that he has mistakenly stated that the khukri was three fourth inside the sheath.
56. The importance of these discoveries, namely, the pieces of burnt coat, pattu and khukri and its sheath, will appear from the two confessions, which I now propose to take up.
57. It may be mentioned here that the inside of the leather sheath, according to the chemical analysis, bore marks of human blood.
58. On 4-4.1947, the confessions of Pudam Pal and Ganga Bam, appellants 2 and 3, were recorded by Sbri Gita Bam, Magistrate 1st Glass, Solan.
59 The contention of counsel for the appellants is first directed against the illegal custody of these two persons at the time of the recording of the confessions. They argue that, at the time the confessions were recorded, the two accused persons had not been formally extradited and therefore, the Baghat police kept them in police custody and obtained remand from the Magistrate as the investigation proceeded, under circumstances, which are wholly illegal. In my opinion, this contention has no substance in view of the authority of the Privy Council in Prabhu v. Emperor, A. I. R. (31) 1944 P. C. 73: (46 Cr. L. J. 119). In that case, the accused who was not a British subject but a native of Jind State, in which he resided, committed an offence within the jurisdiction of the British Indian Court. He was arrested in the State of Jind by British Indian Police. The contention of the accused was that his arrest having been effected in Jind territory by British Indian Officer was illegal and that the illegality of his arrest vitiated the whole subsequent proceedings. A confession by the accused was recorded by the British Indian Magistrate of Bohtak (Punjab) and the accused was sent to the judi-cial lock up in Jind and later on, formally extradited to the authorities of Robtak district of the Punjab. Their Lordships rejected this contention of the illegality of his arrest. Their Lordships assumed that the arrest was open to objection as an infringement of the sovereignty of Jind, although the Jind authorities, so far from resenting what had been done or regarding their rights as having been flouted, cooperated most readily with the British Indian police in bringing the appellant to justice. In their Lordships' view, the validity of the trialand conviction of the appellant were not affected by any irregularity in his arrest. Their Lordships relied upon Ex parte, Susannah Scott, (1829) 9 B. & C. 446: (4 Man & By. 361) and Emperor v. Vinayak Damodar Savarkar, 35 Bom. 225 : (12 Cr. L. J, 856) and Muhammad Yusufuddin v. Queen Empress, 24 I. A. 137. Their Lordships referred to the observation of the Lord Chancellor in the last case :
'It may well be that the procedure taken wag-irregular and improper and brought a person wrong-fully within the jurisdiction, but if he is there and if he has committed an offence, whatever else may be said about it, it ia no answer to the offence committed, within the jurisdiction that he has been brought irregularly within the jurisdiction. That has been decided more than once in our Courts. There was a case where a man was tiled for murder in which it waa clear that he was not properly arrested in the jurisdiction where he was found, but nevertheless he was tried, convicted and executed.'
60. The appellants, therefore, fail on the first point.
61. The second point is whether the accused persons were sent to the judicial lock up, after their confessions had been recorded.
62. The defence has produced a certified copy of the Station House record of Kandaghat, Patiala State. From it, it is clear that soon after the recording of the confessions, the accused persons were handed over to the Patiala police and the latter produced them before the Nazim or District Magistrate of Kandaghat, who directed them to be kept in the judicial lock up. It will further be seen that when Padam Pal, appellant 2, made an application, Ex. D-B, before the committing Magistrate, retracting his confession, he mentioned therein that he had been in the judicial custody at Kandagbat, after the recording of his confession. The second point, therefore, fails.
63. The third point is that the confessions are not voluntary and have not been recorded in conformity with the provisions of Sectiion 164, Criminal P. C.
64. I have looked into the confessions very carefully and I am of opinion that both the confessions have been recorded in strict compliance with law and they are voluntary and can be acted upon. It appears to me that these two accused persons, after the discoveries were made, thought that the game was up and it was better for them to make a clean breast of the crime. I have been referred, by counsel for the appellants, to a formidable list of authorities, all dealing with the subject of the voluntary nature of the confession. I need only say that these authorities are all unanimous that if a confession is to be acted upon, the Court should see that it has been made voluntarily and that it conforms to Sub-section (3) of Section 164, CriminalP. C. It is frequently assumed that a person would not make a confession of his guilt, which will be prejudicial to his interest unless some pressure is exerted on him. But this proposition is not wholly correct. A man, who has committed a grave crime, unless he is a confirmed offender hardened by his repeated crimes, feels an overwhelming desire to unburden himself and share with some person his terrible secret. In this case, at the moment of their arrest and recovery of such a large sum of money on their persons, incompatiable with their vocation in life, they both felt that the game was up and that it was futile to try to conceal their guilt, though they did make such an endeavour between the 22nd March and 4th April 1947. But when the discovery of the khukri and its sheath, EXS. p. 3 and P. 4, was made at the instance of their co-culprit, Nathu, appellant 1, and the discovery ot burnt pieces of coat and pyjama and shirt and brown mufflar was made upon the search of Nathu's house, those two accused felt that all their attempts to try to conceal their guilt would be of no avail.
65. In Ibrahim v. Emperor, A. I, R, (1) 1914 P. o. 155 ; (15 cr. L. J. 326), the Judicial Committee observed that it was a positive rule of English Criminal law that no statement by an accused would be admissible in evidence against him unless it were shown by the prosecution to have been a voluntary statement in the sense that it was not obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority. Section 24, Evidence Act, elaborately deals with this matter. The wording of Section 24 is 'if it appears to the Court to have been caused by inducement, threat etc., a confession is irrelevant.' In Emperor v. Panchkuri, 52 cal 67: (A.I. R. (12) 1925 cal. 587: 26 Cr. L.J, 732) it is pointed out that Legislature has deliberately used the expression 'if the making of the confession appears to the Court' and not 'if it is proved to the satisfaction of the Court.' Therefore, if the Court has any reason to doubt the fres and voluntary nature of the confession, then it is for the prose-cation to prove that it was made without threats or promises or inducements.
66. It is not the case of the appellants that they were beaten by the police. Padam Pal, appellant 2, was released on bail by the Patiala authorities. He could have immediately taken steps to retract the confession, alleging threat or inducement. Before the committing Magistrate, on 31-12-1948, twenty-one mouths after the confession, he made an application, Ex. D-B, retracting his confession, faintly alleging that he was induced to make the confession by a promise of the investigating officer that he would be a witness and not an accused person in this case. It is necessary here to repeat the dates relevant to this fact. On 22-10-1948, Padam Pal, appellant 2, was extradited. On 5-11-1948, the challans were produced and Padam Pal was re-presented by a counsel. On 37-12-1948, commitment proceedings commenced. Till then, Padam Pal, appellant 2, never moved to retract his confession.
67. Ganga Ram, appellant 3, did not retract hia confession throughout the proceedings before the committing Magistrate. It was on 30-7-1949, when he was examined by the Magistrate under Section 342, Criminal P. C, he retracted the confession.
68. I agree with the reasonings of the learned Sessions Judge that the confessions conform to the provisions of Section 164 (3), Criminal P. C. and that they are voluntary. Shri Gita Ram, the recording Magistrate, gave them time to deliberate. It is argued that there was a police officer present. But it is not borne oat by the evidence on record. The Magistrate warned them that they were not bound to make the confessions and if they made any, such confessions would be used against them. The Magistrate also enquired if they were confessing voluntarily or whether they were confessing on account of fear or pressure or promise or inducement. Padam Pal, appellant s, bad been released on bail before the extradition and did not complain to the Patiala Magistrate. Ganga Bam was released on bail on 22-11-1948, about a year before the date of his retraction, daring which he did not retract his confession.
69. After giving my most anxious consideration to all the circumstances, leading to the confessions and other circumstances, following upon the confessions, I cannot but come to the conclusion that the confessions are voluntary.
70. Many authorities have been cited by counsel for the appellants and I need refer to only those of them directly bearing upon the facts of the case: (1) Dikson Mali v. Emperor, A. I. R. (29) 1942 Pat. 90 : (43 or. L. J. 36). The confession was rejected because a police constable was standing by the accused and the con-fession was so short that it could not be relied upon; (2) Emperor v. Kumoji Brahmin, A.I.R. (27) 1940 pat. 163 : (41 Cr. L. J. 533). The confession was rejected because the Magistrate did not enquire if the accused was confessing voluntarily or of Ms own free will, and (3) Bhuboni Baku v. The King, A. I. R. (36) 1949 P. C. 257 : (50 Cr. L. J. 872). Their Lordships of the Privy Council were discussing the preference between the evidence of an approver before the committing Magistrate and before the Sessions Court and were discussing the scope of Section 30, Evidence Act. Their Lordships finally observed as follows:
'Retraction of a confession by an accused is a common phenomenon in India. The weight to be attached to it must depend upon whether the Court thinks that it was induced by the consideration that the confessionwas under, or by realisation that it had failed to secure the banefits the hope of which inspired it.'
Their Lordships assumed that the confession of Trinath was not weakened by Us retraction. Then their Lordships proceeded to the consideration of the accomplice evidence. It will be necessary to reproduce the observations of their Lordships in full in order to attract their application to the case of Nathu, appellant 1 ;
'Their Lordships whilst not doubting that such a conviction is justified in law under Section 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co-accused all implicating the particular accused giveu independently and without an opportunity of previous concert, might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some Independent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and after wards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline as true, and it ia easy foe him to work into the storymatter which ia untrue. He may implicate ten peopla in an offence, and the story may be true in all itsdetails as to eight of them, but untrue as to the other two, whose names have been introduced because theyare enemies of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in Sadia, as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger.'
71. The above principle, I shall, most respectfully, adopt in the case of Nathu, appellant 1.
72. The learned counsel for the State have cited Emperor v. Dubai, AIR (29) 1942 Pat. 113: (43 cr. p. J. 90) and Jhiktu v. Emperor, A.I.R. (29) 1942 pat. 427: (43 Cr. L. J. 544). In both these authorities upon the Magistrate's inquiry, if the accused was making the statement voluntarily, it was held that the accused was making a voluntary statement. Shri Gita Ram, who recorded the confessions, stated that he was satisfied that the accused persons were making statements voluntarily.
73. These retracting confessions have further been corroborated in all material particulars. (His Lordship pointed out the corroborative evidence and proceeded.)
74. I wish to revert to the story of the accident pleaded by Nathu, appellant 1. It is unreasonable that he should have a muffler while climbing a tree to cut branches. Heclaims the shirt as his own but the shirt did not bear any blood-stain. He must have been wearing a cover over the shirt, an overcoat or a coat. The blood-stains on the coat have been reported by the chemical analyst to have disintegrated, having been burnt and laid under the earth. Information supplied by Nathu in custody led to the discovery of the fact that the khukri and its sheath were thrown to the bushes adjoining the curve of the path near the house of Sis Ram. As the khukri has been proved by the statements of the deceased and also by the circumstantial evidence of the injuries on the person of Nathu, to have been used in the commission of the offence, the fact discovered is very relevant (see Pulukuri Kottaya v. Emperor, A.I.R. (34) 1947 P. C. 67 : (48 Cr. L. J. 533).
75. I shall now take up the question how far the retracted confession of an accomplice can be used against Nathu, appellant 1. The learned Sessions Judge has referred to Bhuboni Sahu v- The King, A.I.R. (36) 1949 P. C. 257 : (50 Cr. L. J. 872). I have also referred to this authority as a decision upon which counsel for appellants also relied. The view that the confession of a co.accused can be used in support of other evidence and cannot be made the foundation of a conviction is held by their Lordships to be correct. The confession is only one element in the conaideration of all the facts proved in the case. It can be put into the scale and weighed in the scale. The only real safeguard against the risk of condemning Nathu, appellant 1, with Padam Pal and Ganga Ram, appellants 2 and 3. who have confessed, lies, in my judgment, in insisting upon the independent evidence which in some measure implicates each of the accused persons. This aspect of the matter was well expressed by Sir George Rankin in Ambika, Charan v. Emperor, A.I.R. (18) 1931 Cal. 697 : (33 Cr. L. J. 19 S.B.) which the Privy Council in Bhuboni Sahu v. Emperor A.I.R. (34) 1947 P. C. 67 : (43 Cr. L. J. 533), approved,
76. I find from the record that the dying declaration relates to injuries inflicted on the person on whom a violent assault was made by the deceased, Sis Ram. I further find that such injuries compelled Nathu, appellant 1, to become an indoor patient in Ripon Hospital. I further find that his story of a fall from a tree was untrue not only in view of the medical evidence but also in the absence of any evidence relating to the accident. It is also in evidence that Nathu, appellant 1, when admitted into hospital stated that he had received the injury four days previously, coinciding with the date of occurrence. On the search of Nathu's house,blood-stained brown muffler with a clean out and a pair of pyjamas and a shirt were found, which Nathu, appellant 1, claimed aa his own. The discovery of the khukri and its sheath, at the instance of Nathu have been proved beyond all reasonable doubt. All these are links in the chain of proof forged in a manner allowed by law. The muffler bore a clean cut, showing that the sharp edge of an instrument made it. If it were worn wrapped round the neck, as alleged by Natbu it is not possible to have such a mark of clean cut. The muffler bore human blood marks, as proved by the chemical analysia. The shirt found on search was claimed by Nathu as his, as one worn with muffler and pyjama at the time of his 'fall' from the tree yet the shirt does not bear any bloodstain. The shirt then must have been covered by an outer wrapper or coat. There is a very strong presumption that the piaces of charred coat burnt by Padam Pal and buried under the ground by Ganga Bam belongs to Nathu.
77. It will now be seen if these two confessions of the co-accused, Padam Pal and Ganga Ram, appellants 2 and 3, can be used against the co-accused, Nathu Sam.
78. The injuries on Nathu's face and their gravity bear out the oral and written statements of the deceased. His explanation that these injuries were due to a fall from the tree is not borne out by the medical evidence nor has he adduced any evidence to support his story. His choice of the distant Ripon Hoapital Simla instead of nearby Solan hospital and his own statement that the date of his so-called fall coincided with the date of occurrence and the, discovery of the charred coat and its ashes, gulband, pyjama (bearing human blood-stain) and pattu recovered under a stone in a water-course (nalla) all point to one fact that these circumstances are incompatible with his innocence.
79. Further, it has been found that the confessions of Padam Pal and Ganga Ram have been proved beyond all reasonable doubt, to be 'voluntary' and they have been corroborated in every material particular by the evidence on record. According to Section 30. Evidence Act and bearing in mind the principle as laid down by their Lordships of the Privy Council in Bhuboni Sahu v. The King A.I. R. (36) 1949 P.c. 257: (50 Cr, L. J. 872), already referred to these circumstances can be put into scale and weighed with them.
80. After having considered in full details (a) the dying declaration (EX, P.f.) of Sis Ram, deceased and its cocroboration and (b) the injuries received by accused Nathu and the conduct of this accused in the hospital, as observed by Dr, Mukand Lal and (c) the re-covery of blood stained pyjama and muffler (gulband) and shirt in a bundle from his house on a police search and (d) discovery of charred coat, wet pattu at the instance of Ganga Ram, appellant 3, who was directed by Padam Pal, appellant 2, (who had tried to burn the coat in, his oven) to bury them, on the grounds of Padam Pal's house and (e) the discovery of khukri and its sheath, at the instance of this accused himself, and finally, the choice of Ripon Hospital, Simla, the learned Sessions Judge concludes, as against Nathu Ram, as follows:
'I have already enumerated the corroborative circumstantial evidence against Natha consisting of the dying declaration of Sis Ram, the recovery of blood stained clothes from his house, the incised injuries sustained by him on the very date of the incident which has remained unexplained by the accused, his journey to Ripon Hospital and his unnatural conduct there and the recovery of the khukri and mian Exs. P 3 and P 4, after being pointed out by the accused of which the mian Ex. P 4 ia proved to be stained ia human blood, all of which are strong circumstantial evidence, which .are both corroborations as to the factum of the crime and as to identity. After such dual corroboration Section 30, Evidence Act, does come into operation, when the confessions are considered against Nathu the co-accused. As held in Ismmail v. Emperor, A, I, R, (33) 1916 Sind 43 : (47 Cr. L. J. 548) and Ghulam Mohammad v. Emperor, A. I. R, (29) 1942-Lah. 271 : (44 Cr. L. J. 77), the scales against Nathu do weigh heavily againat him after such substantial corrobaration, and I feel fully satisfied, that he was a participant in the crime, with the other co-accused, and it was be alone, who had killed Sis Ram so mercilessly ae is evidenced by the post mortem report Ex. P. D, of P, W. 6 Mrs. Grewal. In this connection, it is also worth consideration, why Ganga Bam and Padam Pal accused should have mentioned Nathu, as their co participant in the crime. It is recorded in the confession of Padam Pal, that all the three accused were friends and lived at a common place, and this fact is fully substantiated in the testimony of D. W. 1 Kirpa Ram lambardar, that all the three accused had goad relations between themselves and had been seen seated together. The mention of Nathu in the confessions nude by his own friends, has therefore, an added significance.'
81. I fully concur in the reasonings given by the learned Sessions Judge.
82. It is in the oral and written statements of the decaased that he was left at the 'Dochi' helpless and his broodings led him to take advantage of the momentary lapse of Nathu's vigilance. He succeeded in remembering and laying his hands on the khukri. He attacked Nathu. The learned trial Judge held that it was not proved that tbe knife lying on the bloodstained flow belonged to any of the accused persons. May be, these accused had pocket knives but the prosecution has failed to prove that the accused persons came armed with knives or pen knives. The attack by the deceased was so sudden that Nathu wag taken aback and received grave injuries inflicted on him beforebe could wrest the khukri. But his condition was causing him anxiety, too, because he was also losing blood. All theae circumstances may be taken into account. Padam Pal started the violence by forcibly tearing off the ear-rings. He can sign his name and appears to knowalphabets. He was the ring-leader. These circumstances may not be as extenuating as one would expect them to be, but it cannot be denied, in the light of the statements of the deceased that Nathu was compelled to fight for his life with a man bent upon killing him with a khukri.
83. I have given my most anxious thought to this aspect of the case whether Nathu deliberately, with malice aforethought, intended to murder the deceased. The considerations, which I have stated above, may weigh in a Oourt of law as they argue persuasively in the Court of my own judgment, I would, therefore, affirm his conviction under Section 302, Penal Code, but raduce his sentence to transportation for life while affirming bis convictions and sentences on two couuta. Padam Pal was, as I have said above, the ring-leader. It waa he who forcibly tore off the ear-rings. He had gone to Simla. He has been identified in the dock by the goldsmith. A large share of the proceeds was found on his person and he has not chosen to account for such a large sum when he ekes out a poor existence by sale of grass, which he himaelf cuts. He tried to burn the coat which Nathu wore because it bore incriminating evidence on it. Nathu was too sick then to look after its disposal. This coat coveted the shirt from receiving any bloodstains. Padam Pal further directed Ganga Bam to conceal the evidence of the crime. The evidence has been fully discussed on all these points by the learned Sessions Judge and I agree with his findings. In my opinion, Padam Pal has been rightly convicted under Sections 460 and 397, Penal Code, and his sentences are adequate to his crime. I do not wish to interfere with them. I would, therefore, affirm his conviction and sentences and dismiss his appeal.
84. Ganga Bam, the baby of the gang, has been dealt with proper justice tempered with mercy. He is just a youth who took part in the robbery and received a minor share. He has shown throughout a willing follower of Padam Pal. His conviction and sentence do not require any interference. I would, therefore, affirm hisconviction and sentences and dismiss his appeal.