JUDGMENT

Sulaiman, J. - This is an appeal from a conviction u/s 328 and Section 458-75 of the Indian Penal Code. The prosecution case is that on the 6th January last the accused sold some flour to the complainant Bhaggi, a money-lender, which had been poisoned with dhatura; that his children partook of the loaves of bread made of it and were taken ill; and that the accused with three others entered the complainant's house during the night and caused injuries to him.

2. The learned Sessions Judge is unable to believe the oral evidence for the prosecution. According to him "the case against Dip Singh must depend on whether the Court believes his confession."

3. The facts that Bhaggi's relations, who partook of the bread, ware poisoned and that Bhaggi himself was assaulted during the night, admit of no doubt. The only question is whether the complicity of Dip Singh has been established by the evidence.

4. Bhaggi had known Dip Singh from before, yet, admittedly, he did not recognize him as one of the assailants, Bhaggi did not go to the thana on the morning of the 7th January, but a report was made by the village chaukidar the next day, although the thana was not very distant. Till then Bhaggi had not made any charge against Dip Singh. Neither the village Mukhya nor any other villager gave any early information to the police. The learned Judge has rightly commented on this curious feature of the case.

5. When the Sub-Inspector went to the village on the 8th January, Bhaggi Singh did not name. Dip. Singh at all, but said that; "a man of 45 years of age with black and white moustaches had brought the flour to him." As pointed out by the Judge, Dip Singh does not at all answer to this description. He is about 23 or 24 years of age and has not white hairs. The explanation of this discrepancy, as given by Bhaggi, was that he was not in his proper senses. 'The Judge has declined to believe this. He thinks that the motive for a wrong statement was fear. It is highly improbable that some fear existed even after the police had arrived.

6. In face of all these difficulties the learned Judge has discarded the oral evidence. The notice found posted outside Bhaggi's house, which never came to the knowledge of Bhaggi, was inadmissible in evidence against the accused. In fact having regard to the incorrect facts it contained, it was probably a fabrication by some mischievous person.

7. There remains the confession of the accused. The fact that the accused adhered to it in the Magistrate's Court is certainly a matter of importance, and has influenced the Judge considerably. But the following facts have to be considered in connexion with it.

8. Dip Singh was a previous convict, and as such a person on whom the suspicion of the police was likely to fall from the very start. The learned Judge has erred in law in referring to "the confession to the police." The confession before the Magistrate was not made till the 19th January, i.e. some 9 days after. The confession, as it reads, throws the major part of the blame on Bhola, and makes the accused take a minor, almost a passive part. Bhola is said to have 'mixed something of green colour' before telling the accused what it was. At that time he had no idea of any intended raid during the coming night. He was called out after nightfall by Bhola who asked him to accompany him.' Then at the last moment when Bhola wanted to use the knife on Bhaggi's neck, the confession says that Dip Singh, accused, "stopped him and caught hold of his hand. '

9. The learned Judge has himself pointed out that although the confession speaks of a knife (chaqu, being used), the medical evidence shows that 'the injuries wore probably caused by a blunt weapon.' The learned Judge thinks that the injuries were caused by a blunt implement of some sort, whether of wood or metal. He has tried to explain away the discrepancy in the confession by a reference to Dip Singh's confession to the police where he is stated not to have clearly mentione