Das, J.@mdashThe appellant, Akal Sahu, aged about 30-35, has been found guilty of the offence of murder u/s 302, Penal Code, and has been sentenced to transportation for life by the learned Sessions Judge of Monghyr. He was tried with two other persons, Bhagirath Mandal and Narain Sahu, both of whom have been acquitted by the learned Sessions Judge. The trial was held with the aid of four assessors who were of the opinion that the appellant was not guilty. The learned Sessions Judge, in disagreement with the opinion of the assessors has found the appellant guilty of the offence of murder with which he was charged.
2. It was alleged against the appellant that he had killed one Damodar Mandal at about 8-30 P.M. on 26th August 1945 in the following circumstances. His Lordship then set forth the facts of the case and the contentions of the two sides and after discussing the evidence proceeded as follows.
3. Turning now to the defence version, there is the first information which the appellant Akal Sahu had given at the thana at 7 A.M. on 27th August 1945. The question is whether this first information is admissible in evidence. Learned Counsel for the appellant has contended first, as a general principle, that the previous statement of a person, who is subsequently accused of an offence and is thus, rendered incapable of giving evidence on oath, is rot admissible in evidence in a case against him, unless it comes under any of the provisions of Section 32, Evidence Act, and secondly, that the information given by the appellant in this case is of the nature of a confession and, therefore, inadmissible in evidence u/s 25, Evidence Act.
4. As the question of the admissibility of an information given by a. person, who subsequently figures as an accused, often arises in criminal trials, I propose to consider this question in some detail. I may say at once that the first contention of learned Counsel, in the wide terms in which it has been stated by him, finds no support from the provisions of the Evidence Act. Section 17, Evidence Act, explains what is meant by an admission it states that an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances hereinafter mentioned. Section 18, etc., indicate the persons and circumstances referred to in the concluding part of Section 17; for example, statements made by a party to a proceeding or by an agent to any such party are admissions. Section 21 states inter alia that admissions are relevant and may be proved as against the person who makes them certain exceptions are provided in which an admission may be proved by or on behalf of the person making it. Under the aforesaid provisions, the statement of a person, who subsequently figures as an accused, may be admissible in evidence as an admission if the statement suggests any inference as to any fact in issue or relevant fact. Ordinarily, such an admission may be proved against the person who makes it but in certain exceptional circumstances mentioned u/s 21, Evidence Act, the admission may be proved by or on behalf of the accused person.
5. The aforesaid general provisions regarding admissions are, however, subject to certain excluding sections, such as, Section 24, Section 25 and Section 26, Evidence Act. These sections deal with a confession made by an accused person. The word ''confession'' has not been defined in the Evidence Act, and I shall presently discuss what is a confession. It is, however, clear, as has been observed in several decisions, that ''confessions'' are a subspecies of ''statements,'' and a species of admissions. If, therefore, the statement of a person, who is subsequently accused of an offence, whether the statement is embodied in a first information or not, is of the nature of a confession and comes within the provisions of any of the excluding sections mentioned above, then the statement is clearly not admissible in evidence. This general statement is again subject to Section 27, Evidence Act, which is a proviso to the preceding sections.
Besides the sections of the Evidence Act referred to above, there is another section, Section 162, Criminal P.C., which may exclude the statement of a person made to a Police Officer in the course of an investigation, even though the statement is treated as a first information and is made by a person who is subsequently accused of an offence. The test for the application of Section 162, Criminal P.C., would be if the statement was made to a Police Officer in the course of an investigation. At one time it was thought that Section 162, Criminal P.C., did not apply to statements made by an accused person: vide the decisions in
6. Turning now to some of the decisions which have been placed before us, I refer first to a decision of their Lordships of the Judicial Committee in Dal Singh v. Emperor AIR 1917 P.C. 25. In this case it was argued before their Lordships that the information given to the police by the appellant (that is, the accused person) was not admissible in evidence u/s 25, Evidence Act, being a confession to a Police Officer and tending to prove the guilt of the appellant. Dealing with the argument their Lordships said as follows:
It is important to compare the story told by Dal Singh when making his statement at the trial with what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpore. As such the statement is proper evidence against him.
7. In Legal Remembrancer Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342 the main question for consideration was the application of Section 27, Evidence Act. Their Lordships were dealing with a first information given by a person who himself admitted having hit his wife with a sword: the information also contained statements relating to certain antecedent events. Dealing with the argument that the statement, as a whole, was hit by Section 25, Evidence Act, their Lordships stated as follows:
That by reason of the provisions of Section 25, 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 23rd March, are admissible as statements or admissions not being confessions, and that of the second half of the first information, such portions as led to discovery, e.g., in the bedroom, of the dead woman''s body, the sword and a certain padlock, are admissible under the provisions of Section 27, Evidence Act.
Their Lordships referred to Section 21, Evidence Act, in support of the contention that part of the first information was admissible as containing admissions not being confessions, and also to certain earlier decisions of the Calcutta High Court, such as, Emperor v. Kangal Mali AIR 1915 Cal. 256. The decision in Legal Remembrance Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342 has been the subject of some comment in other decisions, particularly as respects that part of the decision which allows the statement of an accused person to be divided or separated the non-confessional from the confessional portion. In Harnam Kisha v. Emperor A.I.R.1935 Bom. 26 Beaumont C.J. (as he then was) expressed, his doubt about the correctness of the principle on which the Calcutta High Court proceeded in Legal Remembrancer Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342, in the following words:
Section 25, Evidence Act, seems to be founded on the view of the legislature that confessions made to a Police Officer are suspect, since they may have been induced by improper pressure. If that be the true underlying principle of Section 25 it is, to my mind, very difficult to see how any part of the confessional statement can be admitted in evidence.
8. In Bharosa Ramdayal v. Emperor AIR 1941 Nag. 86 the following observations have been made with reference to the afore, said criticism of Beaumont C.J. (as he then was):
With the greatest respect we do not consider that the doubt there expressed was justified.... The confessions in those cases and in the one which we are considering were made in circumstances which preclude any possibility of improper pressure, as in each case the accused person went of his own accord to the police station before any suspicion had been aroused and stated that he had killed some one, and in Legal Remembrancer Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342 that part of the confessional statement which was admitted had no connection with the actual narrative relating to the crime.
It is clear that before admitting a portion of a statement, care must be taken to see that that portion is not so connected with the confessional portion as to be inseparable from it. This has also been pointed out in Emperor v. Kommoju Brahman AIR 1940 Pat. 163 where it has been observed that the principle in Legal Remembrancer Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342 is not applicable in a case where no parts of the first information report can be extracted from the rest, and be relevant in themselves and admissible as not being incriminatory. In Gopaldas Shivalomal v. Emperor AIR 1945 Sind 132 the first information of a person, who was subsequently accused of an offence, was admitted in evidence on the ground that it was not a confession and a reference was made to the decision of their Lordships of the Judicial Committee in Dal Singh v. Emperor AIR 1917 P.C. 25. In Abdul Ghani v. Emperor AIR 1931 Lah. 763 it has been observed that a statement made by a person, at the time when he was not an accused, which in no way connects him with the offence, is not a confession; but if the person subsequently becomes an accused and the statement is tendered in evidence against him, it must be treated in exactly the same way as if he had been an accused at the time he made it: although reliance is placed upon the truth of the statement so far as a portion is concerned, that does not invalidate the statement if it is not incriminating in itself, and such a statement is admissible Tinder the general rule as an admission.
9. Prom a consideration of the case law discussed above it is clear that the first contention of learned Counsel for the appellant that the statement of a person, who is subsequently accused of an offence, cannot be admitted in evidence, unless it comes u/s 82, Evidence Act, is not correct. The statement may be admissible in evidence as an admission, provided it is not hit by the excluding section of the Evidence Act relating to the confession of an accused person or by Section 162, Criminal P.C. The first information which the appellant gave in this case is clearly not hit by Section 162, Criminal P.C. It was given at 7 A.M. on 27-8-1945, long before the Sub-Inspector had any information of the occurrence as alleged by the prosecution. The statement was not, therefore, by a person in the course of an investigation. Learned Counsel has then contended that the first information is of the nature of a confession, and that no part of it is separable from the rest, so as to attract the rule laid down in Legal Remembrancer, Bengal v. Lalit Mohan Singh AIR 1922 Cal. 342 The first information reads as follows:
That I have got a maize field of about 4 kathas in the bahiar of mouza Kirpur. Last night when I was watching my maize field at about 10 p.m. I heard a rattling sound in the fields to the northern side of the machan. At this I armed with a bhala, went towards that side. Hearing the sound of my footsteps, the thief van away. I gave him one bhala blow. The thief whom I could not identify fled away towards the north crying ''Bap re bap'' (O father) and leaving behind in the field a small bundle of maize valued at about Re. 1 which was cut by the unknown thief. I also raised outcries ''run I struck the thief. I struck the thief. On the outcries being raised by me, Asman Mandal, son of Harpad Mandal, Baijnath Mandal, son of Bansi Mandal, Baijnath Mandal, son of Akal Mandal, Bandhi Mandal, son of Baman Mandal, and other residents of Nirpur eame, and I told them all about the occurrence. The maize, which was cut by the thief, is still lying in the field. The unknown thief was of medium stature and was wearing a Tcurta and a dhoti. The head was bare. I do not suspect any person. The bhala with which I assaulted the thief is in my house. I cannot say which part of the thief''s body was hit by the bhala.
10. The question is whether it is of the nature of a confession. I can do no better than quote here certain observations of their Lordrships of the Judicial Committee as to the meaning of the expression "confession," Occurring in Pakala Narayanaswami v. Emperor AIR 1989 P.C. 473:
As the point was argued, however, and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships'' view no statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not itself a confession e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man''s possession. Some confusion appears to have been caused by the definition of ''confession'' in Article 22 of Stephen''s ''Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author, after dealing with admissions generally, is applying himself to admissions in criminal oases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872 and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused ''suggesting the inference, that he committed'' the crime.
Applying the test laid down by their Lordships, it appears to me that the information given by the appellant in this ease was in no sense a confession. The appellant did not confess to having committed any crime, much less the crime with which he was charged. He merely stated that he had hit an unknown thief who was committing theft of makai crop.
11. Learned Counsel for the appellant has referred us to certain decisions where it has been observed that a useful test as to the admissibility of statements made to the police is to ascertain the purpose to which they are put by the prosecution; if the prosecution rely ort the statements of the accused to the police as being true, then they may, and probably in many cases will, be found to amount to confessions; if, on the other hand, the statements of the accused are relied on, not because of their truth, but because of their falsity, they are admissible as admissions. Speaking for myself and with all deference I doubt if the test referred to above can be said to be an absolute or universal test; it is difficult to understand how a statement becomes admissible as an admission merely because of its falsity. As has been observed in Abdul Ghani v. Emperor AIR 1931 Lab. 763, the mere fact that reliance is placed upon the truth of the Statement so far as a portion is concerned, does not invalidate the statement if it be not incriminatory in itself. In. the case before us all that the appellant admits in his first information is that some unknown thief had cut a portion of his maize crop, and he had assaulted that thief. No part of the statement is a confession, and it is admissible as an admission, because it suggests an inference as to a fact in issue or relevant fact. As I have stated above, the appellant has made substantially the same statement before the Committing Magistrate, This version of the occurrence as given by the appellant at the earliest stage is different from his defence at the trial, and, is not supported by any evidence in the record, except that of the Sub-Inspector of Police who found that a small part of the crop had been cut in an irregular manner. Even if a portion of the appellant''s statement is true, it is not a confession. I am, therefore, of the opinion that the learned Sessions Judge was right in admitting the said first information in evidence. I may also state that even if the first information is altogether excluded from consideration, the prosecution case is still proved by the dying declarations of Damodar Mandal and the evidence of Bhubneshwar Missir (P.W. 3) to which I have already made a reference.
12. The only other point that remains for consideration is the question of the offence which the appellant has committed in hitting Damodar Mandal on the chest with a bhala. It has been very seriously contended before us that the offence is one u/s 304, Penal Code. Learned Counsel for the appellant has stated that if the first information of the appellant is admitted in evidence it shows that a thief was stealing the appellant''s makai crop, and, therefore, the appellant had a right of private defence against such theft, and if he has exceeded that right, his case comes under Excep. 2 of Section 300, Penal Code. He has also pointed out that the evidence of the investigating Police Officer shows that some part of the makai crop of the appellant was cut in an irregular fashion. I have given this point a very careful consideration. I have already pointed out that there is no evidence on which it can be held that Damodar was stealing Akal''s crop that night. One may feel sympathy for a person whose crop, almost ripe for harvesting, is either damaged by cattle or is cut by a thief. I am unable, however, to hold that Excep. 2 of Section 300, Penal Code, applies in this case. Moreover Excep. 2 contains the important clause "without any intention of doing more harm than is necessary for the purpose of such defence." This clause is a necessary corollary of Section 99, Penal Code, which says that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defenee. Even though the damage of ripe crops can be very exasperating, it does not give the right to kill a person. The appellant hit Damodar Mandal on the chest with a bhala with such force that the left lung was penetrated. The opinion of the doctor was that the injury was sufficient in the ordinary course of nature to cause death, though Damodar Mandal "died some days after, the infliction of the injury. Nor can it be said that the appellant had such grave and sudden provocation as to deprive him of the power of self-control. For these reasons, I am unable to hold that the offence is one u/s 304, Penal Code. In my opinion, the learned Sessions Judge has rightly found the appellant guilty of the offence u/s 302, Penal Code, and, in the circumstances of this case, he has rightly imposed, on him the lesser sentence of transportation for life.
13. The result, therefore, is that I would uphold the conviction and sentence passed upon the appellant and dismiss the appeal.
Dalziel, J.
I agree.
