1. This is an appeal from Jail against the order of conviction and sentence of the appellant Jit Bahadur Chetri under Section 326 Indian Penal Code. The appellant was tried by the Magistrate First Class at Along, Arunachal Pradesh on a charge under S. 326 I.P.C and convicted and sentenced to undergo rigorous imprisonment for two years and also to pay fine of Rs. 600/-, in default of payment of fine, to undergo rigorous imprisonment for another period of six months. Against the order of conviction and sentence passed by the Magistrate 1st Class, Along, an appeal was preferred before the Deputy Commissioner, Siang District, Along, who summarily dismissed the appeal.

2. The prosecution case was that in the evening of 25th June, 1976 the accused-appellant armed with a dao came to the house of Tenzing Lama of Along, the complainant of the case, and inflicted cut injury with the dao on the person of Pasang Lama, a minor son of the complainant. The Sub-Inspector of Police, who was in charge of Along Police Station, investigated the case and filed a charge-sheet under S. 326 I.P.C The learned Magistrate framed the charge against the accused-appellant under Section 326 I.P.C, and the charge reads as follows:—

“That you on or about the 25th day of June, 1976 at Along voluntarily caused grievous hurt to Pasang Lama s/o Tenzing Lama of Along by means of a dao which, used as weapon of offence, is likely to cause death and thereby committed an offence punishable under S. 326.”

3. The charge was explained to the accused person and he pleaded not guilty. The Magistrate therefore recorded that regular proceedings would be taken up and fixed the case on 23rd July, 1976. The case came up for hearing on 24th August, 1976, on which date one witness namely, Tenzing Lama, the complainant was examined. From the record it is found that after the examination-in-chief of the witness Tenzing Lama, the Magistrate has recorded cross-examination as ‘Nil’. On 24th August, 1976 some other prosecution witnesses were also present but the Magistrate did not examine any other witness; he only examined the accused Jit Bahadur Chetri and the record shows the following question was put by the Magistrate and the following answer was given by the accused:

“Q. On 25th June, 1976 at Along you inflicted bodily injury on the person of Pasang Lama son of Tenzing Lama with a dao. Do you have anything to say?

A. I did so and now I plead guilty.”

4. Thereafter on the same day the Magistrate passed the order by which he found the accused-appellant guilty of the offence under S. 326 I.P.C, and he fixed 25th August, 1976 for consideration of the sentence. Accordingly on 25th August, 1976 the Magistrate sentenced the accused-appellant to undergo rigorous imprisonment for two years and also to pay fine of Rs. 600/-, in default of payment of fine, to undergo rigorous imprisonment for another period of six months. The accused-appellant's appeal before the Deputy Commissioner was also unsuccessful.

5. It is clear from the record that when the charge was explained to the accused-appellant he pleaded not guilty and the learned Magistrate also directed that the case should be tried in a regular manner. Thereafter the learned Magistrate examined only one witness, that is, the complainant. Then the accused was examined. He was purported to have pleaded guilty to the charge. This statement of the accused recorded in the case cannot be construed as a statement recorded under S. 313 of the Cr. P.C

6. When a confession is made by an accused person, it is recorded under Section 164 of the Cr. P.C The statement, recorded in this case is not a confession as contemplated under S. 164 of the Cr. P.C The other provisions of recording of statements of accused persons are in Ss. 232, 239 and 313 of the Cr. P.C

7. Section 232 of the Cr. P.C, reads as follows:—

“232—Acquittal.—If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.”

8. Section 239 of the Cr. P.C, reads as follows:—

“239. When accused shall be discharged.—If, upon considering the police report and the documents sent with it under S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.”

9. A plain reading of the provisions of Ss. 232 and 239 of the Cr. P.C, reveals that the statement recorded in the instant case cannot be said to be recorded under Ss. 232 and 239 of the Cr. P.C

10. Section 313 of Cr. P.C, reads as follows:—

“313. Power to examine the accused.—

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court,

(a) may, at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnessses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them;

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.”

11. In the instant case all the witnesses for the prosecution were not examined. The statement of the accused was recorded after recording the evidence of one witness, namely, the first informant. So it may be submitted that the statement recorded in the instant case is a statement recorded under clause (a) of sub-s. (1) of S. 313 of the Cr. P.C But such a submission cannot be sustained in law inasmuch as the accused may be put questions for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him.

12. I have gone through the evidence of the only witness Tenzing Lama. He has not stated that he saw the accused giving dao blows or other blows to his minor son. The relevant portion of his evidence may be quoted below:—

“In the meanwhile the eldest boy left me and was going to his mother. At that time I heard a sound of something striking against the wall. Simultaneously the son cried “Mama Mardeya, Bachao.” I immediately rushed towards the child and found cut mark on his face and blood coming out of the injured portion. I immediately caught hold of the accused by his shift and held the dao by my other hand so that he may not injure me and I shouted for help. Ram Bahadur, Shri Prasad Mechuk Rollen came there…………”

13. On going through the deposition of Tenzing Lama, it is found that he did not actually see the accused-appellant causing the injury on the person of his son with a dao. That being the position, the question that was put by the learned Magistrate to the accused was against the latter and spirit of sub-s. (1) of S. 313 of the Cr. P.C The Magistrate put the question as follows:—

“Q. On 25th June, 1976 at Along you inflicted bodily injury on the person of Pasang Lama, son of Tenzing Lama with a dao. Do you have anything to say?”

14. From the deposition of Tenzing Lama, we do not find such an allegation in so many words though one may infer from the general statement made by Tenzing Lama. The Magistrate, therefore, acted illegally in framing the question as such, since Tenzing Lama did not personally see the actual infliction of the injury by the accused on his minor son. The answer of the accused to the question of the Magistrate is simply — “I did so and now I plead guilty.” Such an answer cannot be construed as pleading, guilty within the meaning of the provisions of the Criminal Procedure Code and the learned Magistrate acted illegally in accepting this answer of the accused-appellant as a plea of guilty. The learned Magistrate acted contrary to law in convicting and sentencing the accused-appellant when it has been specifically recorded by himself that when the charge was explained to the accused he pleaded not guilty and that a regular trial would be held.

15. The appellate Court also erred in law in upholding the conviction and sentence passed by the learned Magistrate against the accused. The appellate Court has failed to appreciate the true meaning and scope of S. 313 Cr. P.C The appellate Court has tried to support its judgment by saying that the spirit of S. 313 Cr. P.C, was followed.

16. In my opinion, the learned Deputy Commissioner is wholly wrong on this point. The spirit of S. 313 Cr. P.C, has been given a go-by in putting the question by the Magistrate in the manner put to the accused-appellant. That apart, the learned Deputy Commissioner should have carefully considered the provisions of clause 32 of the Assam Frontier (Administration of Justice) Regulation, 1945, which reads as follows:—

“32. Criminal Procedure.— The High Court, the Deputy Commissioner, the Assistant Commissioner shall be guided in regard to procedure by the principles of the Code of Criminal Procedure, 1898, so far as they are applicable to the circumstances of the Tracts and consistent with the provisions of this Regulation.”

17. The provisions of the Criminal Procedure Code 1898 and the provisions of the Criminal Procedure Code 1973 on the points discussed above are identical or similar. Therefore the Deputy Commissioner committed an error of law in trying to support the conviction and sentence passed against the accused-appellant by the learned Magistrate saying that the spirit of S. 313 Cr. P.C, was followed. In any view of the matter, it must be held that in the instant case there was no proper trial of the accused on the charge framed against him. Hence the conviction and sentence passed against the accused-appellant are liable to be set aside and I do hereby set aside the conviction and sentence passed against the accused-appellant.

18. The next question arises whether the case should be sent for re-trial.

19. It is found that the accused was convicted by the learned Magistrate on 25-8-76 and he is in Jail custody at least from 2-7-76. So he is in Jail for about 11½ months. Considering this aspect of the matter and the nature of the offence alleged to have been committed, I do not think that it would be justified to send the case for re-trial. In the result the appeal is allowed. The conviction and sentence passed against the accused-appellant are set aside. The accused-appellant shall be released forthwith.

20. Appeal allowed.