- (1.) THIS is an appeal by Mohan against his conviction under section 304 of the Indian Penal Code by the Sessions Judge, Partabgarh.
(2.) THE prosecution story was briefly this. THE incident in question took place on the 19th of February, 1950, at about 8 or 9 P. M. THE appellant Mohan and the deceased Bheria are brothers. THEy have another brother named Debia. It is said that that evening the appellant was drinking in his room, while Debia was drinking in his. THEse brothers live in the same compound but in different rooms. THEre is a fourth brother also. It seems that a silver ornament belonging to that brother had been lost a few days before. THE appellant and Debia started quarrelling about the loss of that ornament, and the appellant accused Debia of having stolen the ornament. On this Debia got up with a lathi and wanted to strike the appellant, who, however, came to his room. THE deceased saw this conduct on the part of these two brothers, and thought that they were going to fight. He, therefore, went up to the room of the appellants and after the appellant had gone into the room was chaining it from outside. While he was doing so, it is said that the appellants hot at him through a hole in the chokhat of the door by putting the muzzle of the gun through that hole. Bheria was injured in the chest, and fell down at once. Debia had seen this incident. Soon after the shot had been fired, the women folk came out of the rooms. So did two other persons, namely, Deva and Mangia Bhils. Information was then sent to the Numberdar who arranged to send a person to the Thana to make a report. This report was made the same night, and the Police arrived on the spot next morning. THE appellant was still inside the room, and was arrested. THE gun was handed over to the Police by Debia. Later on, the appellant was put up before a Magistrate and he made a confession on the 22nd of February, 1950, which, however, was retracted in the Committing Magistrate's Court. The appellant pleaded not guilty. His story is, in many respects, similar to the prosecution story. He admitted that he and his brother Debia and the deceased were drinking wine together in the compound of their house when a quarrel arose between him and Debia about the ornament which had been lost. In his statement in Court he merely said that he and his brothers were drinking wine. He got drunk, and did not know what happened, and that he only came to know of his brother's death next morning. In his confession, however, the appellant said that he and his brothers, Debia and Bheria, were drinking together, when a quarrel took place between him and Debia on account of the ornament which had been lost some days before. Debia came up with a stick, and wanted to hit him. This annoyed the appellant, and he went into his room. Bheria was nearby, and thought that there would be trouble, and, therefore, was shutting the door of the roam from outside. As soon as the appellant entered the room, he found a gun, and shot through the hole in the Chokhat thinking that the man outside, who was shutting the door, was Debia. The result was that Bheria was shot in the chest, and fell down. The appellant added that he was drunk at that time, and came to know only next morning that Bheria was dead. The fact that Bheria was shot dead is proved amply from the evidence on the record. Further, it is proved that he was lying just in front of the room of the appellant, and the only question that is to be decided in this appeal is whether it was the appellant who had shot the deceased. The main witness in this case was Debia, brother of the appellant. He stated in the Sessions Court that there had been a quarrel between him and the appellant over the ornament that had been lost, and this took place after they had been drinking for some time. He also said that he took hold of a stick to strike the appellant, who thereupon went into his room. Debia then went to the verandah and lay down. After this he merely said that he heard a gun shot, and saw Bheria lying injured, and that he could not say who had fired the shot. But in his statement in the Committing Magistrate's Court he stated that while Bheria was shutting the door, Mohan shot at him through the hole in the Chokhat. Bheria fell down injured, and Debia immediately went to his room. Thereafter Mangia and Deva Bhils turned up. In the morning Bheria died of the injury received. The other witnesses arrived on the scene after Bheria had fallen down, and did not actually see the shot being fired. Their evidence is, therefore, only circumstantial, and shows that the deceased was shot at that spot, and was lying in front of Mohan's room when seen by these witnesses after a few minutes of this incident. The Sub-Inspector, when he inspected the locality, saw a mark of a shot having been fired through the bole in the Chokhat. It has been urged that the other witnesses did not make a mention of this mark found by the Sub-Inspector. But we have no reason to doubt the statement of the Sab-Inspector in this respect, and that is a material corroboration of the fact that shot was fired from inside the room of Mohan through that hole. Most of the witnesses have gone back on the statements which they had made in the Committing Magistrate's Court. Generally speaking one cannot place much reliance on the evidence of witnesses who go back in the Sessions Court on what they state in the Committing Magistrate's Court. But there may be exceptional cases where in spite of the fact that a witness has gone back on his statement in the Committing Magistrate's Court, it is possible for the Sessions Court to rely on the statement given in the Committing Magistrate's Court, if it believes that that statement is true. The present is an exceptional case of that kind. We can easily understand that reason which has led the witnesses, and particularly Debia, to go back on the statements made in the Committing Magistrate's Court. By the time these witnesses, and particularly Debia, came to make their statements in the Court of Session, many months had gone by after the death of Bheria. The grief caused by his death must have got less, and the witnesses must have felt that something should be done by them for the appellant who is after all a brother of one of them viz. , Debia, and a relation of others. A feeling must have come in the the minds of these witnesses that one brother had been killed and the other brother stood in danger of being sent to Jail, and that they should do something for his brother. This must, in our opinion, have been the feeling uppermost in the mind of Debia by the time he came to the Court of Session. That is why we find that in the Sessions Court, while he has stuck to the story as to how the trouble began, he just said at the end that he did not notice who fired at Bheria. The statement of Debia in the Committing Magistrate's Court has been used under section 288 of the Code of Criminal Procedure by the Sessions Judge, and he has relied on that statement. Learned counsel urges that the Sessions Judge was not justified in using the statement of Debia under section 288 of the Code of Criminal Procedure. He relies particularly on the fact that there is no order of the Sessions Judge to the effect that the statement of Debia would be taken in evidence under that section. It is no doubt true that no such order was passed by the Sessions Judge when the witness was being examined or soon after the examination of the witness on oath. But the point has been discussed at length in the judgment of the learned Sessions Judge. It seems that the Public Prosecutor asked the Sessions Judge at the time of arguments that the evidence of Debia be admitted under section 288 of the Code of Criminal Procedure. This was objected to by the learned counsel on the other side, and the Sessions Judge admitted that statement for reasons given by him. We are of opinion that it is desirable that a request for admission of such a statement under section 288 should be made while the witness is in the witness-box or just after his evidence is over. But the mere fact that such a request is made at a late stage would not, by itself, mean that the evidence should not be looked into under section 288 of the Code. It is only when the conditions required by section 288 are fulfilled that the statement would be admitted by the Judge in such circumstances. The case relied on by learned counsel is Mt. Bhukhin vs. Emperor (A. I. R. 1948 Nagpur 344 ). That case lays down that "the power under s. 288 is not to be lightly used. The discretion vested under that section has to be judicially exercised. As the evidence before the committal Court, which is admitted in evidence under s. 288, is substantive evidence, the prosecution and the accused are entitled to notice so that they may have an opportunity to test it by further cross-examination. " This case thus lays down three propositions, and so far as the first two are concerned, it cannot be said that in the present case the Sessions Judge was wrong in exercising his discretion in admitting the evidence of Debia under section 288. What learned counsel argues is that there was no notice to the accused, at any rate, that the learned Judge intended to use the statement under section 288. So far as that is concerned, we are of opinion that though the learned Judge or the Public Prosecutor did not say in so many words at the time Debia was in the witness-box that his evidence would be used under section 288, the circumstances all show that the counsel for the accused could not have been ignorant of the fact that that statement would be so used. After Debia had gone back on the vital part of his statement in the Committing Magistrate's Court, the entire statement in the Commuting Magistrate's Court was read over to him, and he was asked whether he had made that statement. He admitted that he had made that statement, but said that it was false in material particulars, and that he made that false statement because he had been beaten by the Police, and was in fear of it. Thereafter the witness was cross-examined by the Public Prosecutor. Then he was cross-examined by the counsel for the accused on what he had stated on the questions of the Public Prosecutor. The cross-examination was both on the statement in the Committing Magistrate's Court and on the statement in the Sessions Court. We do not think, therefore, that the counsel for the accused was taken by surprise when a request was made by the Public Prosecutor at the time of arguments for the admission of the statement under section 288 of the Code of Criminal Procedure. We are of opinion that there was notice in this case, and, therefore, the third proposition laid down in the Nagpur case, cited above, has also been complied with. We, therefore, hold that the Sessions Judge was right in admitting the statement of Debia made in the Committing Magistrate's Court under sec. 288. But we would like to point out that the better course for the Sessions Judge would have been to make an order to that effect while the witness was in the witness-box or just after his evidence. So far as the truth of the statement of Debia is concerned, we are of opinion that the statement he made in the Committing Magistrate's Court is true. We are not prepared to believe that he made that statement, because he was beaten by the Police. We are satisfied that he has gone back on his statement in the Magistrate's Court because of his feeling for the living brother which had gone on increasing, while his feeling for the dead brother had faded. We now come to the confession made by the appellant. This confession is, more or less, in accord with the statement of Debia. The Magistrate, who took down this confession of the accused, amply warned him, and we have no doubt that the confession was voluntary. Learned counsel urges that the Magistrate did not ask the appellant why he was making the confession. The Magistrate could have asked that question, and in all probability the answer that he would have got would be that the accused wanted to make a clean breast of the whole show. The mere fact that this question was not asked, does not detract from the voluntary nature of this confession, and we are satisfied that the Magistrate took sufficient pains to satisfy himself that the confession was being made voluntary. We are also satisfied that this confession is true. Learned counsel urges that the confession must have been put in the mouth of the appellant, because he was dead drunk, and could not possibly remember the details. We are not prepared to accept this argument. It must be remembered that the appellant made this confession two days after the incident. He must have come to know on the morning of 20th February from his relations and Debia that Bheria was dead. That is the reason why he said in his confession that he came to know of Bheria's death on the 20th of February. It is obvious that when he came to know of Bheria's death, he must have remembered what had happened in the night, and his confession is only a statement of what he remembered. We, therefore, accept this confession as both voluntary and correct. We have already said that it is, more or less, in accord with the statement of Debia, and is corroborated by the fact that a mark of gunshot was found in the hole of the chokhat. The last point that was urged on behalf of the appellant was that the gun was not found in the room. So far as that is concerned, we are satisfied that the room was not watched for the whole night, and it was quite possible for the gun to be removed from that place and put outside from where Debia gave it to the Police. The evidence of Shrimati Hagami, wife of the appellant himself, shows that she had come out of the room in which the appellant was lying. The evidence of other witnesses does not show that the room was kept chained throughout the night, and there was any watch on the door. The fact that the gun was not found in the room does not mean that the appellant could not have fired it. It was also urged that the door had been closed from outside, and that Mohan could not have been seen firing the shot. So far as that is concerned, the circumstantial evidence leaves no doubt that the shot must have been fired by Mohan. Shrimati Hagami was in the room in which the appellant was shut. She said that she was sleeping and only woke up after the shot had been fired, and that when she came out, she saw Bheria lying in front of her room. According to her, only Mohan was in the room then. We see no reason to disbelieve her evidence, and are satisfied that Mohan was the person who must have shot from inside. In the end, it was urged that the sentence of 10 years' rigorous imprisonment might be reduced. We are of opinion that this is not a case in which sentence should be reduced. As a matter of fact the appellant should have been prosecuted under section 302 I. P. C, and it is lucky that he has got off lightly. We, therefore, dismiss the appeal. . ;