Rampini, J.:— The accused in this case, Rajani Kanto Koer, has been tried for the murder of a boy, about five years old, named Brindabun Mondol. He was tried by the Sessions Judge of Burdwan with the assistance of a jury. The jury acquitted the accused of murder, but found him guilty under sec. 411 of dishonestly receiving stolen property. The Judge has referred the case to this Court under the provisions of sec. 307, as he is of opinion that the accused is guilty of an offence under sec. 302, Indian Penal Code.
The facts of the case are as follows:— The boy was last seen about 8 a.m on the morning of the 6th December. He was then wearing (1) a string of gold beads, (2) two gold bangles on his wrists, and (3) a silver waistband.
Five days afterwards, or on the 11th December, his body was found in a tank in the village.
On the 2nd or 3rd Pous (i.e, the 20th December) the brother of the accused found a gold bead in some rice which he was washing, and part of which had been taken by him from the accused's store. This bead was identified as one of the beads worn by the deceased.
The accused was arrested on the 21st December, and on the same date he took the Police to a small tank near the tank where the body had been found, and there dug out from a hole near a tree a bundle which contained a piece of rag, and in the rag were two gold bangles and a silver waistband, and in the earth below the bundle were some gold beads. All these ornaments have been identified as the ornaments the boy was wearing when he was last seen on the morning of the 6th December. The bead found in his rice by Tulsi Koer has been identified as Brindabun's by his mother, the witness Khetramoni Dassi. On the 12th January the accused stated to the committing Magistrate that the child fell down from a terrace and his respiration stopped, and that he had buried his ornaments under a sheora tree. On the 6th February he added: “When I went to throw the body into the tank the accused Punchanon Ghose was with me.” This Punchanon Ghose was another accused, at first charged with having abetted the commission of the murder, but released for want of evidence. On the 5th February, Sub-Deputy Magistrate, Mohendra Nath Gupta, took the accused to the place of occurrence. The accused then pointed out to the Sub-Deputy Magistrate a place on the roof of his house from which he said the boy had fallen, and a place near it where he said he had at the time been sitting to case himself, and also a place in his bari where he admitted he had buried the body of the boy.
These statements made by the accused to the Sub-Deputy Magistrate have, however, been objected to on the strength of the rulings in Queen-Empress v. Bhairab Chunder Chuckerbutty, and we think that this objection must be given effect to, and that, for the reasons given in these judgments, particularly in the judgments in the latter case, these statements are inadmissible and cannot be made use of as evidence against the accused. The statements made by the accused to the trying Magistrate on the 12th January and 6th February have also been objected to on the ground that the certificate required by sec. 364 appears only on the first page of the record of his examination while the record of his examination of the 12th extends over two pages and that of the 6th February is written entirely on the second page. But this defect has been cured by the evidence of the Deputy Magistrate having now been recorded (see sec. 533). The medical evidence shows that the death of the child was due to strangulation, either homicidal or accidental.
On this evidence the jury have, as already said, acquitted the accused of murder but found him guilty of being in possession of ornaments stolen from the child knowing them to have been stolen. They also found that the deceased died from strangulation which they were more inclined to think was accidental.
The Judge has come to the conclusion that the accused is guilty of the offence of murder, and though we feel little moral doubt of the accused's guilt, yet we are unable to see that there is sufficient legal evidence to justify this conclusion. No doubt the accused admits that the deceased was at his house immediately before his death. He declares he fell from the roof, and his respiration stopped. He admits that he subsequently took the body and threw it into the tank where it was afterwards found. He admits, and it is well proved, that he produced the ornaments which the boy is shown to have been wearing on the morning on which he was missed, from a hole underneath a tree near the tank where the boy's body was found. But we do not consider that this is sufficient to justify the accused being found guilty of murder, especially as the medical evidence shows that the deceased may have been either intentionally or accidentally strangled. The accused, it will be observed, nowhere admits that he had anything to do with the boy's death, and there is no evidence to this effect. The production by him of the boy's ornaments about a fortnight after his death is not conclusive that he killed him. We think, in the circumstances, we must accept the verdict of the jury that the accused is guilty only of an offence under sec. 411. We accordingly convict him under that section, and sentence him to undergo three years' rigorous imprisonment, and to pay a fine of Rs. 300, or to undergo nine months' additional rigorous imprisonment in default.
It is unfortunate that the disposal of this case has been so long delayed owing to the necessity of curing the formal defects in the trial committed by the Sessions Judge. We had first to direct him to record the evidence of the Sub-Deputy Magistrate because there was no evidence of the admissions alleged to have been made to him by the accused, and which the Judge referred to in his charge to the jury and in his letter of reference to us. The Judge both in his charge to the jury and in his letter of reference gave an epitome of the statements of the accused as if he was quoting his exact words which we found very misleading. Then, we had again to remand the case to him for the recording of the evidence of the committing Magistrate so as to cure the defect referred to above. In recording the depositions of the Magistrate, we observe that the Judge disallowed a question put to him as to the circumstances which led to the examination of the accused on the 6th February. The Judge has not recorded his reasons for disallowing this question, which does not seem an irrelevant one. The accused does not appear to have been prejudiced by the disallowance of this question, particularly on the view which we now take of the case; otherwise we would have been obliged to remand the case to the Sessions Judge for the third time.
N.G
Verdict upheld.