The appellant, Akal Sahu, aged about 30-35, was convicted of murder under section 302 of the Penal Code and sentenced to transportation for life by the Sessions Judge of Monghyr. He was tried alongside two others, Bhagirath Mandal and Narain Sahu, who were acquitted. The trial involved four assessors who opined that the appellant was not guilty; however, the Sessions Judge disagreed and convicted him.

The incident occurred on the night of 26th August 1945, when Damodar Mandal, a servant of Deonandan Jha, went in search of a stray buffalo that had entered a maize field near the accused's lands. It was alleged that Bhagirath suggested assaulting Damodar, and the appellant hit Damodar on the chest with a bhala (a spear-like weapon). Damodar fell injured and was taken to medical facilities where he made multiple dying declarations identifying the appellant as his assailant. Damodar died on 5th September 1945.

After investigation and charge-sheeting, the appellant was charged under section 302, Penal Code, while the charges against the other two accused were altered to section 302 read with sections 109 and 34. The Sessions Judge convicted the appellant and acquitted the others.

Legal Issues Presented

Whether the dying declarations of Damodar Mandal were reliable and admissible evidence against the appellant.
Whether the first information statement given by the appellant at the police station was admissible in evidence.
Whether the appellant’s act fell under the offence of murder (section 302) or culpable homicide not amounting to murder (section 304), considering his claim of private defence.

Arguments of the Parties

Appellant's Arguments

The appellant denied the prosecution’s case and alleged false implication by interested parties.
He contended that the dying declarations were tutored and unreliable, influenced by Deonandan Jha and his relatives.
The appellant argued that the first information statement he gave to the police was inadmissible as it was a confession and should not be used against him under sections 25 and 162 of the Evidence Act and Criminal Procedure Code respectively.
He claimed that he assaulted a thief damaging his maize crop and thus his act was protected under the right of private defence, potentially reducing the offence to culpable homicide not amounting to murder under section 304 and Exception 2 of section 300, Penal Code.

Prosecution's Arguments

The prosecution relied primarily on the dying declarations of Damodar Mandal, which consistently implicated the appellant as the assailant.
They argued that the first information given by the appellant was not a confession but an admission and was admissible in evidence.
The prosecution contended that the appellant’s act caused a fatal injury intentionally and with sufficient force to cause death, negating the defence of private defence or grave and sudden provocation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dal Singh v. King-Emperor	Distinction between confession and information; admissibility of police reports not amounting to confession.	The court held the appellant’s first information was not a confession but an admissible statement akin to information.
Legal Remembrancer v. Lalit Mohan Singh Roy	Application of section 27 Evidence Act to separate confessional and non-confessional parts of statements.	Discussed but the court expressed caution in applying this principle rigidly; relevant non-confessional parts may be admissible.
Harnam Kisha v. Emperor	Criticism of the principle allowing part of confessional statements to be admitted.	The court noted doubts about admitting parts of confessions and emphasized caution.
Bharosa Ramdayal v. Emperor	Confessions made voluntarily without improper pressure may be admissible.	The court found no reason to doubt voluntariness of the appellant’s statement to police.
Emperor v. Kommoju Brahman…Accused	Principle that no parts of first information can be admitted if inseparable from confession.	Used to caution against admitting statements inseparable from confessional parts.
Gopaldas Shivalomal v. Emperor	First information of accused admissible if not a confession.	Supported admission of appellant’s first information as not amounting to confession.
Abdul Ghani v. Emperor	Statements made before becoming accused admissible as admissions if not incriminatory.	Confirmed admissibility of appellant’s first information as admission, not confession.
Pakala Narayana Swami's case	Section 162 CrPC applies to accused’s statements to police; confessions to police are suspect.	Clarified that section 162 CrPC excludes statements made to police during investigation, but appellant’s first information was before investigation commenced.

Court's Reasoning and Analysis

The court carefully examined the dying declarations of Damodar Mandal, considering allegations of tutoring and fabrication. It found no credible evidence of enmity or motive for false statements by Damodar or his associates, and preferred the medical officer’s testimony over that of Deonandan Jha regarding the dying declaration’s recording. The presence of signatures and thumb impression on the declaration reinforced its genuineness.

The court analyzed contradictions between the doctor’s and the Sub-Inspector’s testimonies about the handing over of the dying declaration but found no reason to conclude fabrication.

Regarding the first information statement given by the appellant, the court engaged in a detailed legal analysis of its admissibility. It rejected the appellant’s contention that such statements by a person who later becomes accused are inadmissible unless under section 32 of the Evidence Act. The court explained that admissions by accused persons are generally admissible unless excluded by provisions relating to confessions (sections 24, 25, 26) or section 162 CrPC if made during investigation. Since the appellant’s statement was made before any investigation and did not amount to a confession, it was admissible.

The court relied on various precedents to distinguish between confessions and admissions, concluding that the appellant’s statement was self-exculpatory and did not confess to the crime charged but admitted assault on an unknown thief. Thus, the statement was admissible as an admission.

On the question of the nature of the offence, the court found no evidence that Damodar was stealing the maize crop or that the appellant acted in private defence. The injury was inflicted with such force that it penetrated the lung and caused death, which negated the applicability of Exception 2 of section 300 or section 304, Penal Code. The court held that the appellant committed murder under section 302 and upheld the sentence of transportation for life.

Holding and Implications

The court upheld the conviction and sentence of the appellant, Akal Sahu, for murder under section 302, Penal Code, and dismissed the appeal.

The direct effect of this decision is the affirmation of the appellant’s life transportation sentence. No broader precedent was set beyond the application of established principles concerning the admissibility of statements by accused persons and the interpretation of dying declarations. The court’s reasoning reinforces the careful scrutiny required in assessing dying declarations and first information statements and clarifies the limits of private defence in cases involving fatal injuries.

Show all summary ...

Das, J.:— The appellant, Akal Sahu, aged about 30-35, has been found guilty of the offence of murder under section 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.

It was alleged against the appellant that he had killed one Damodar Mandal at about 8-30 P.M on the 26th of August, 1945, in the following circumstances. Damodar Mandal was in the service of one Deonandan alias Deonandan Jha (P.W 1) of village Nayatola Phulkia, police-station Muffasil, Monghyr. Damodar Mandal used to look after the cattle of. Deonandan Jha. On the night in question one of the buffaloes of Deonandan had strayed into a field of one of the accused persons, on which maize crop had been grown and was very nearly ripe for harvesting. This field, according to the evidence of the investigating Police officer (P.W 9), was at a distance of about 50 paces west of the house of Deonandan. Damodar Mandai went in search of the buffalo and arrived at the field info which it had strayed. It is stated by the prosecution that one of the accused persons, Bhagirath, said that Damodar got the field grazed daily, and that he should be assaulted. On this, the appellant, Akal Sahu, hit Damodar Mandai on the chest with a bhala. It may be stated here that the usual practice in villages is to watch the maize crop from a machan, when the crop is very nearly ripe for harvesting. Damodar fell down on receiving the bhala blow on the chest. The third accused, Narain, is stated to have extracted the bhala from the chest of Damodar Mandal. There was some hulla of ‘char, chor’, and the three accused persons ran away after the assault on Damodar. Damodar, it is stated, fell down on the western ridge of ‘Bhagirath's land. On the hulla, raised some persons came there, namely, Deonandan Jha (P.W 1), Bhubneshwar Missir (P.W 3), Nenalal Jha (P.W 4) and Kapileshwar Jha (P.W 8). The first two of these four persons are stated to have seen the appellant running away from near the place of oceurrence along with two other persons. The remaining two, namely, Nenalal Jha (P.W 4) and Kapileshwar Jha (P.W 8) merely saw Damodar lying on the ridge of Bhagirath's land and one of them Kapileshwar Jha saw two or three persons running away whom he did not recognize. Both these persons heard, however, from Deonandan or Bhubneshwar that the three accused persons had been seen running away from near the place of occurrence. These four persons took Damodar Mandai on a khatia to a District Board Dispensary known as the Bariarpur Dispensary which was situated at a distance of about miles from village Phulkia. The doctor in charge of Bariarpur Dispensary found that the condition of Damodar Mandai was grave, and he is stated to have recorded the dying declaration of Damodar Mandai, and also sent information to the officer in charge of Muffasil police-station. In the dying declaration Damodar Mandal had stated that he had gone in search of his buffalo which was grazing near the ridge of Narain's land. He further stated that Bhagirath abused him and complained that the fields were being grazed every day; thereupon, Akal hit Damodar with a bhala. On receipt of the information sent by the doctor in charge of the Bariarpur Dispensary, the Sub-Inspector of Police arrived at the Dispensary at about 11-30 a.m on the 27th August, 1945. Damodar Mandal made a statement to the Sub-Inspector of Police which has been treated as the first information of the case. In this statement Damodar substantially gave the same story, namely, that his buffalo was grazing near the ridge between the lands of Bhagirath and. Narain; he went into the field in search, of the buffalo when Bhagirath abused him; thereupon Akal Sahu gave him a bhala blow on the left side of the chest, and Narain extracted the bhala. Two other statements of Damodar were recorded, by the Sub-Inspector of Police on the 27th of August 1945, and the 28th of August, 1945, to which I shall refer in due course. Damodar Mandal was sent to the Monghyr Sadr Hospital, and his dying declaration was again, recorded by a Magistrate at about 8-30 p.m on the 27th of August, 1945, in the Sadr Hospital. This dying declaration is of some importance, inasmuch as in this statement Damodar had said, that three persons assaulted, him, namely, Chero, Akal Sahu and one Guruji. The prosecution has led some evidence to prove that accused Bhagirath is called Guruji and Narain is called Chero. The learned Sessions Judge has not,- however, accepted this evidence, and one of the main reasons for the acquittal of Bhagirath and Narain is the absence of their names from this statement made by Damodar Mandal at the Sadr Hospital of Monghyr. Damodar died in Hospital, on, the 5th of September, 1945. The doctor in charge of the Monghyr Sadr Hospital had examined Damodar Mandal on the 27th of August, 1945, and had also held the post-mortem examination on the dead body after Damodar's death. He had found one penetrating incised wound which had perforated the left lung. In the opinion of the doctor, death of Damodar was due to the injury on the left lung—an injury which the doctor opined was sufficient in the ordinary course of nature to cause death. After the death of Damodar, investigation was completed by the local Police Officer, and charge-sheet was submitted on the 15th of September, 1945. There was an enquiry and the appellant and the other two accused persons were committed to the Court of Sessions on a charge under section 304, Penal Code, against the appellant and under section 304 read with section 114. Penal Code, against the other two. In the Court of Session, the charges were altered: into one under section 302, Penal Code, against the present appellant and under section 302 read with section 109 and section 34, Penal Code, against the other two accused persons. The result of the trial in the Court of Session has already been stated by me.

The defence of the appellant, Akal Sahu, is a denial of the truth of the prosecution case. In a written-statement filed on behalf of the appellant it has been alleged, that he has been falsely implicated, that the prosecution witnesses are interested persons, and that the dying declarations made by Damodar Mandal were, tutored statements. When the appellant was examined by the Committing Magistrate, he stated as follows:—

“I did not assault Damodar. I assaulted a thief who was cutting javera in my field”

It appears that the appellant had himself gone to the police-station at Monghyr at about 7 a.m on the 27th of August, 1945, and had given an information in which the same, story was given, namely, that some thief was cutting the maize crop at about 10 p.m, and the informant, i.e, Akal Sahu, had given a bhala blow to the thief. Learned Counsel for the appellant has contended before us that this first information (Ext. 5) lodged by the appellant at the than a on the 27th of August; 1945, at 7 a.m is not admissible in evidence, and the learned Sessions Judge should not have used this first information against the appellant. This contention requires very careful consideration, and I shall deal with it in subsequent-paragraphs of this judgment. I wish merely to state here that the story given in this first, information is substantially the same as has been stated by the appellant himself when he was examined by the Committing Magistrate under the provisions of section 209, Criminal Procedure Code. The statement made by the appellant before the Committing Magistrate, which has been tendered and read as evidence under the provisions of section 287, Criminal Procedure Code, is somewhat different, from his written statement which was filed in the Court of Session and in which the appellant had stated that he was falsely implicated at the instance of his enemies.

There are no eye-witnesses in this case, and the prosecution case against the appellant rests on the dying declarations made by Damodar Mandal before his death, and the testimony of the two witnesses Deonandan Jha (P.W 1) and Bhubneshwar Missir (P. W: 3) who say that they saw the appellant running away from near the place of occurrence when they were proceeding to the place on hearing the hulla. Of these two witnesses the learned Sessions Judge has not relied on Deonandan Jha (P.W 1), but has relied on Bhubneshwar Missir (P.W 3). The other two witnesses Nehalal Jha (P.W 4) and Kapileshwar Jha (P.W 8) merely give corroborative evidence. I would take up first the statements made by Damodar Mandal before his death, namely, the dying declarations which were clearly admissible in evidence under section 32 of the Evidence Act. The main contention of learned Counsel for the appellant is that these statements were tutored, statements, tutored at the instance of Deonandan Jha and his relatives, and should not, therefore, be relied on. It has been urged before us that the ‘Jhas’ are Brahmins and had originally come from Binda Diara, and had settled in a tola of the village; with the passing of years, they had grown in number, and they wanted more land; it was suggested to Deonandan Jha that the appellant refused to sell his land to these ‘Jhas’ and, therefore, he has been falsely implicated. Deonandan Jha (P.W 1) has admitted that the ‘Jhas’ originally came from Binda Diara. He has, however, repudiated the suggestion that they wanted more lands or that they had asked for lands from the appellant or that the appellant had refused to sell lands to the ‘Jhas’. Deonandan has stated that though his house and bari stand on about 8 kathas of land, he has in his cultivation about 12 or 13 bighas of land. There is no reliable evidence in the record to show that there was any previous enmity between the appellant on one side and the ‘Jhas’ on the other. There would, therefore, be no particular reason why the ‘Jhas’ should tutor Damodar Mandal to make a false accusation against the present appellant; nor is there any particular reason why Damodar Mandal would agree to let oil the real assailant and make a false accusation against the present appellant. The first statement which Damodar Mandal had made was at the Bariarpur Dispensary at about 10-30 p.m on the 26th of August 1945. The genuineness of this statement has been very seriously challenged before us by learned Counsel for the appellant. The doctor in charge of the Bariarpur Dispensary, who recorded this statement, has been examined in the case (P.W 7) This doctor has stated that he got two witnesses to sign the statement, namely, Deonandan Jha (P.W 1) and Nenala Jha (P.W 4). He further stated that he: got Deonandan called from the basti. For some reason, which is not very clear, Deonandan Jha (P.W 1) has disowned his signature on this dying declaration. Deonandan's evidence has also been unsatisfactory on another point. He admitted that he had made pairwi in the case against the appellant so that the latter might not be released on bail. He denied, however, that he had tried to get the order for bail cancelled. The petition at page 74 of the paper-book shows that Deonandan Jha had filed the petition on the 11th of September, 1945, for the cancellation of the bail of the appellant. As between the evidence of Deonandan Jha and the Medical Officer of Bariarpur Dispensary, I would certainly prefer the evidence of the latter. Unfortunately, however, the Medical Officer of Bariarpur Dispensary has also made some inaccurate statements due probably to lapse of memory. He had stated that he made over the dying declaration to the Sub-Inspector of Police next day in the morning, which would be the morning of the 27th of August, 1945. The Medical Officer then stated as follows:—

“I also showed the patient to the Sub-Inspector. The Sub-Inspector kept the dying declaration in his pocket without reading it. I had told him that the condition of the patient was very serious. The Sub-Inspector kept the declaration with him and took down the statement of the injured.”

The Sub-Inspector says that he did not meet the Medical Officer of Bariarpur when he went to the Dispensary. On the 28th of August, 1945, the Sub-Inspector sent a constable to bring the dying declaration from the Medical Officer of Bariarpur Dispensary, and that on the evening at about 6 p.m he received the dying declaration and the injury report from Bariarpur. There is, therefore, this contradiction between the evidence of the doctor and that of the Sub-Inspector of Police regarding the question as to when the first dying declaration made by Damodar Mandal was made over to the Sub-Inspector of Police. I am unable, however, to agree with learned Counsel for the appellant in his inference that this contradiction shows that the first dying declaration of Damodar Mandal was subsequently cooked by the doctor. The doctor had no reason for doing so. Nenalal Jha (P.W 4) had attested the dying declaration, and admits his signature thereon. He is a student, and was on leave at the time, and I can find no good grounds for disbelieving his testimony. This witness has stated that the statement made by Damodar Mandal was read over by the doctor and Damodar replied that the statement was correct. Damodar's thumb impression was then taken and the witness attested the statement. There is a, thumb impression on the dying declaration. The evidence of this witness no doubt shows that Deonandan Jha and his three companions including the witness were present at the Dispensary at some time or other from the night of the 26th of August, 1945, till the arrival of the Sub-Inspector of Police on the 27th of August, 1945. It further appears that Deonandan Jha, accompanied Damodar Mandal when the latter was sent to the Monghyr Sadr Hospital. Damodar Mandal was the servant of Deonandan Jha, and I find it nothing strange if he or some other persons, stayed at the Dispensary for sometime or other. Much comment was made before us on the fact that Damodar's own relatives, such as, his father or mother, were not present. The evidence of Deonandan Jha, however, shows that at the time of the occurrence no body was present in the house of Damodar Mandal. Deonandan Jha says that Damodar's father, brother and mother were not at home at the time. Another point, which has been urged before us in connection with the first statement made by Damodar Mandal at Bariarpur Dispensary is that there is no reference to it in the letter which the Medical Officer sent to the Sub-Inspector of Police. The time 10.45 p.m is mentioned below this letter and the dying declaration is stated to have been taken at 10-30 p.m it is contended that the letter to the Sub-Inspector of Police being later in time should have contained a reference to the dying declaration. The reply to this contention is that the time below the letter merely shows when it was sent to the Sub-Inspector of Police. Therefore, mere non-mention of the dying declaration in the letter to the Sub-Inspector of Police does not necessarily mean Chat the dying declaration was subsequently cooked. For the reasons given above, I am unable to accept the contention that the first dying declaration made by Damodar Mandal at Bariarpur Dispensary is either tutored or cooked. It is worthy of note that when the Sub-Inspector came to Bariarpur Dispensary at about 11-30 a.m on the 27th of August, 1945. Damodar made a long statement to him in which he repeated the same story. This statement of Damodar made at 11-30 a.m on the 27th of August 1945, has been treated as the first information of the case. Nothing has been stated before us which would lead us to think that this statement was either tutored or-cooked. Apart from the statement which has been treated as the first information, of the case, the Sub-Inspector of Police examined Damodar a second and a third time on the 27th of August, 1945, and 28th of August, 1945, on some additional points. These statements have also been admitted in evidence under section 32 of the Evidence Act. In one of these statements, made on the 28th of August, 1945, it was stated that Bhagirath and Nara in were there, though the assault was made by the appellant Akal Sahu. The learned Sessions Judge has given Bhagirath the benefit of doubt which arises out of this statement. The last statement of Damodar (except the one recorded by the Sub-Inspector of Police on the 28th of August 1945) is the one made before the Magistrate at Monghyr Sadr Hospital at 8-30 p.m on the 27th of August, 1945. This statement is, to some extent, different from the other statements, inasmuch as it mentions two names, Chero and Guruji, which do not find place in any of the earlier statements. The Magistrate who recorded this statement is P.W 5. He says that the man was then in agony and further says that the man made the statement in his own dialect which the witness recorded in the Hindustani language. The learned. Sessions Judge has not accepted the prosecution evidence that Narain was also known as Chero and Bhagirath as Guruji. The learned Sessions Judge was probably right in not accepting that evidence. As far as the present appellant is concerned, there is no discrepancy whatsoever. In all his different statements made on the 26th of August, 1945, 27th of August, 1945 and 28th of August, 1945, Damodar had consistently said that it was the appellant Akal Sahu who had given him the bhala blow on the chest. In my opinion, there are no good grounds for disbelieving these statements of Damodar Mandal, so far as the present appellant is concerned.

I now turn to the other evidence in the record. Of the two witnesses, Deonandan Jha (P.W 1) and Bhubneshwar Missir (P.W 3) who say that they saw the appellant running away from near the place of occurrence, the, learned Sessions Judge has not accepted the evidence of Deonandan Jha (P.W 1). Deonandan Jha's evidence has been somewhat unsatisfactory on some points to which I have already made a reference. The reason given by the learned Sessions Judge for not accepting the evidence of Deonandan Jha regarding the identification of the appellant near about the place of occurrence, does not, however, appear to be very convincing. The reason given is that there was makai crop all round, and, therefore, it was not possible, for Deonandan to identify the persons who were moving along a different ridge from the one along which Deonandan was coming. It appears that the night was a moonlit night, being the second day after the full moon. Deonandan saw the three persons moving at a short distance, and I do not see any great improbability in identifying them. Even if the evidence of Deonandan Jha is excluded on the ground mentioned by the learned Sessions Judge, there is the evidence of Bhubneshwar Missir (P.W 3) who says that he recognized two out of the three persons, namely, the present appellant and Narain Sahu. This witness also mentions that the appellant stated—“Sale ko dag de dia” which statement the witness does not appear to have made before the Committing Magistrate. Whether the appellant made any such statement or not at that time is not very material for the purpose of judging the reliability of the identification made by Bhubneshwar Missir (P.W 3). The house of Bhubneshwar Missir is not very far from the place of occurrence, and there is nothing improbable in his hearing a hulla and going towards the place from where the hulla, was coming. In my opinion there are no good reasons why the evidence of this witness should be disbelieved. His evidence corroborates the dying declarations made by Damodar Mandal, and connects the appellant with the occurrence. The other two witnesses, Nenalal Jha and Kapileshwar Jha, did not identify any of the persons who were running away. They, however, said that they, had heard from Deonandan or Bhubneshwar that the three persons were Bhagirath, Akal and Narain.

The evidence of the aforesaid four witnesses supports the statements made by Damodar to the effect that he had been hit on the chest with a bhala when he had gone to the field of the accused persons in search of the buffalo. These witnesses found Damodar lying on the ridge of Bhagirath's land. There has been some argument before us as to the ownership of the particular piece of land which was grazed or on which the assault was made. The prosecution evidence is consistent to the effect that Damodar was found lying on the western ridge of Bhagirath's land. There is also evidence to show that all the three accused persons have lands near one another. Deonandan has stated that just west of Bhagirath's land was the land of Narain therefore, the ridge on which Damodar was lying was the common ridge between the two pieces of land. The investigating police officer had stated in his deposition before the Committing Magistrate, which was admitted in evidence under section 288, Criminal Procedure Code, that he investigated both the cases together, namely, the case instituted on the information of Akal Sahu and the case instituted on the fardbeyan of Damodar Mandal. He further stated that he found maize crop on 4 kathas of land of Akal, Sahu. On the north-eastern corner of the field maize plants had been grazed and there were proof marks of buffaloes.—Ten paces north of a machan on the field the Sub-Inspector of Police found maize plants cut in an irregular manner. The Sub-Inspector of Police also saw the western ridge of the field of one Aghori Mahto in which Narain had grown maize crop. This was the ridge near which Damodar Mandai had been found lying injured. Accused Narain, it may be stated, is the brother of appellant Akal. The Sub-Inspector of. Police did not find any blood marks: he had explained that flood water had come right up to that place, and that is why no blood marks were found. The learned Sessions Judge has, I think, rightly stated that in this case the ownership of the particular land on which the assault was made, is not of any particular importance. There is no change in the place of occurrence, the assault having taken place near the common ridge between the two pieces of land, one in the cultivation of Bhagirath and the other in the cultivation of Narain. The present appellant is, the brother of Narain, and he has also a piece of land near by on which there was makai crop which was found to have been grazed and partly cut by the Sub-Inspector of Police. It is not necessary that the assault should take place exactly at the place where the buffalo had grazed. Damodar had gone in search of the buffalo, and when he had entered into one of the fields in search of the buffalo, he was assaulted by the appellant Akal. I am unable to accept the contention raised on behalf of the appellant that the prosecution has been guilty of a change of the place of occurrence, or that the place of occurrence has not been clearly fixed by the prosecution.

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 the 27th of 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 not 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 confessoin and, therefore, inadmissible in evidence under section 25 of the Evidence Act. 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 of the 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 under section 21 of the Evidence Act, the admission may be proved by or on behalf of the accused person. The aforesaid general provisions excluding admissions are, however, subject to certain restrictive sections, such as, section 24, section 25 and section 26 of, the 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 sub-species 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 of the 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, of the Criminal Procedure Code 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 of the Code of Criminal Procedure 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 of the Criminal Procedure Code did not apply to statements made by an accused person, vide the decisions in Azimuddy v. Emperor. Rajkumar Singh v. King Emperor and certain other decisions. In view of the decision of their Lordships of the Judicial Committee in Pakala Narayana Swami's case, those decisions must be considered to have been overruled, and section 162 of the Code of Criminal Procedure will apply to the statement of an accused person if the other conditions of the section are fulfilled. The position, therefore, comes to this. The statement of a person, who is subsequently accused of an offence, may be admissible in evidence as an admission, provided it is not of the nature of a confession and does not come within the excluding sections of the Evidence Act or is not hit by section 162 of the Criminal Procedure Code. Such a statement may also be admissible under, other sections of the Evidence Act, e.g, section 8, Explanation 1.

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. King-Emperor. In this case it was argued before, their Lordship that the information given to the Police by the appellant (that is, the accused person) was not admissible in evidence under section 25 of the 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 be 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.”

In. Legal Remembrancer v. Lalit Mohan Singh Roy the main question for consideration was the application of section 27 of the 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 of the Evidence Act, their Lordships stated as follows:—

“That by reason of the provisions of section 25 of the Evidence Act the first information is not admissible in its entirety is conceded. But it is contended that the preliminary portions of the first information, giving a history or narrative of events preceding the night of the 23rd of March, are admissible as statements or admissions not being confessions, and that of the second half of the first information, such portions as led to discovery, e.g, in the bed-room, of the dead woman's body, the sword and a certain padlock, are admissible under the provisions of section 27 of the Evidence Act.”

Their Lordships referred to section 21, of the 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. The decision in Lalit Mohan Singh Roy's case 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 the divided or separated—the non-confessional from the confessional portion. In Harnam Kisha v. Emperor Beaumont, C.J (as he then was) expressed his doubt about the correctness of the principle on which the Calcutta High Court proceeded in Lalit Mohan Singh Roy's case, 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.”

In Bharosa Ramdayal v. Emperor the following observations have been made with reference to the aforesaid 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 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 49 Calcutta 167 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 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…Accused . where it has been observed that the principle in Lalit Mohan Singh Roy's case 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 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's case. In Abdul Ghani v. Emperor 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 under the general rule as an admission.

From 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 under section 32 of the Evidence Act, is not correct. The statement may be admissible in evidence as an admission, provided it is not hit by the excluding sections of the Evidence Act relating to the confession of an accused person or by section 162 of the Criminal Procedure Code. The first information which the appellant gave in this case is clearly not hit by section 182 of the Code of Criminal Procedure. It was given at 7 a.m on the 27th of August, 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 Lalit Mohan Singh Roy's case. The first information reads as follows:—

“That I have got a maize field of about 4 kathas in the bahiar of mauza Nirpur. Last night when I was watching my maize field at about 10 a.m I heard a rattling sound in the fields to the northern side of the machan. At this 1 armed with a bhala vent towards that side. Hearing the sound of my footsteps, the thief ran away. I gave him one bhala blow. The thief whom I could not identify filed away towards the north crying ‘bap re bap’ (O father) and leaving behind in the field a small bundle of maizf valued at about Re. I which was out 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 Manda, Bandhi Mandal, son of Raman Manda, and other residents of Nirpur came, 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 hurta 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.”

The question is whether it is of the nature of a confession. I can do no better than quote here certain observations of their Lordships of the Judicial Committee as to the meaning of the expression “confession” occurring in Pakala. Narayana Swami's case:—

“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 the 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 cases, 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 case 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 be bad hit an unknown thief who was committing theft of makai crop. 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 prosecutions if the prosecution rely on 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's case, 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 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 declaration's of Damodar Mandal and the evidence of Bhubneshwar Missir (P.W 3) to which, J. have already made a reference.

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 under section 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 Exception 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 Exception 2 of section 300, Penal Code, applies in this case. Moreover Exception 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 of the 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 defence. 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 under section 304, Penal Code. In my opinion, the learned Sessions Judge has rightly found the appellant guilty of the offence under section 302, Penal Code, and in the circumstances of this case, he has rightly imposed him the lesser sentence of transportation for life.

The result, therefore, is that I would uphold the conviction and sentence passed upon the appellant and dismiss the appeal.

Dalziel, J.:— I agree.

S.H

Appeal dismissed.