NIKA RAM versus THE STATE OF HIMACHAL PRADESH

NIKA RAM

THE STATE OF IDMACHAL PRADESH

April 28, 1972

[J.M. ~HELAT AND H. R. KHANNA, JJ.]

Code of Crinzinal Procedure s. 164--Confe.rsion recorded by Magistrate not empowered to record it is inadtnissible-So ir oral evidence of such n1aglstrate in support of the confession-Reduction of sentence, considera-Jionf fnr,

The appellant was tried by the Sessions Judge for an offence under •. 30 of the Indian Penal Code for the 'murder of his wife.. According t~ the prosecution the appellant had suspected the fide:ity of his wife because he believed that son born tc: her was not his. The wife was last seen in· the company of the appellant on the evening of the murder. It was alleged that the appellant went to the Tahsildar and made confession. The Tahsildar thereafter called the police. At the instance of the appellant the body of his wife was recovered from his house. When produced before first class Magistrate for having his confessional statement recorded the appellant declined to make any confessional statement. Rel)'-ing upon the confession .made to the Tahsildar and the other evidence the Sessions Judge convicted the appellant. The High Court upheld the conviction, Jn appeal before this C.Onrt it was inter alia contended on behalf -0f 1he appellant that the. confession recorded by the Tahsildar was inadmissible in evidence since he was second class Magistrate not spe-cially empowered by the State Government in terms of s. 164 of 1he Code of Criminal Procedure to record confession.

ll:ELD : In Sin11hara Sin11h·s case this Court _relying '?n N~zir .Ahmed'.• \lase laid down that confession recorded during the mveshgat1on of case by second class Magistrate not specially ~mpow~red could not be put in evidence under ss. 74 and 80 of the .Indian Evidence Act. It 'Y"s also held that the oral evidence of the Mag•s'rate to prove the confes51on was inadmissible. Jn. the present case therefore the confesston recorded by the Tahsildar was inadmissible and so was his oral testimony to prove it. [434 B-Cl

S:ate of Uttar Pradesh v. Singhara Singh and Others, [1964] 4. S:C.R. 485 and Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372, apphed

It could not be said that the Tahsildar recorded the staten1~nt before the commencement of investigation. !he confessic;>n was recorded . at 11 p.m. while the intimation to the police regarchn~ murd~rer p.avn1g come to the residence of the Tahsildar was entered in the daily diary at 10.50 p.m. The Head Constable after having. made that entry proceeded to the residence of the TahS1ldar and on arrival there put the accused 1[inder arrest. ]lt is well established that the discovery and arrest . of t-h_e suspected offender is one of the essential steps in 1he course of an 1nvest1-gation. [415 E-G]

H. R. Rishbud and Inder Singh v. The State of Delhi, [19551 l S.C.R \ 150 and The State of Madhya Pradesh v. Mubarak Ali. [1959] Supp. l S.C.R. 201, followed.

Supp.

In re Yendra Narasimha Murthy, A.l.R. 1966 A.P. 131. referred to

However in the present case ~ven if the confession was excluded the rest of .the .material on record proved the gliilt of the accused. [435 EJ

[Conviction maintained but in view of the special facts of the ca~e ·sentence i:educed from death to imprisonment for li'fe.l

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. U of 1972.

Appeal by special leave fro)ll the judgment. and .order. dat~ September 16, 1971 of the Himachal Pradesh High Court m Cn-minal Appeal No .. 37 oi 1970 and Murder Reference No. 3 of 1970.

G. Narayana Rao, for the appellant.

H. R. Khanna and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Khanna J. Nika Ram ( 34) was convicted by learned Ses-D sions J udg~ Mahasu under section 302 Indian Penal Code for committing the murder of his wife Churi (26) and was sentenced to death. On appeal and refernce under section 374 of the Code of Criminal Procedure, the High Court of Himachal Pradesh con-firmed the conviction and death sentence. Nika Ram has now come up in appeal to this Court by Special leave. ·

The prosecution case is that Nika :Kam was married to Churi deceased near about 1958. In 1964 Chmi gave birth to soil named Joginder. Nika Ram considered that Joginder was not his son and had been born as result oi adulterous conduct on the part of Churi. When Joginder was three months old; Churi and Joginder were sent to the house of Churi's mother Smt. Nagju (PW 2) in village Gani. Churi on arrival at her mother's house told her that the accused had not been treating her welL Afte: Churi had stayed at her mother's house for about three or four years, the accused paid visits to her and wanted to t~ke Churi to his house.· The accused, however, declined to take Joginder wit.'t him. At the suggestion of Nagju, Churi, Joginder and Nagju came to the house of the accused in village Shilaroo which is at distance of 1 ! mile from_ Gani. At his house, the accused. gave beating to Churi deceased. Nagju consequently returnd alon" with Churl and Joginder to her village Gani. On the d<jy of .Shivratri b.>fore the present occurrence, the accused took Churi along with him to his house. Joginder was, however, left with Churi's mother Nagju. The accused and his wife lived alone in their house in Shilaroo. No one else resided with them in that house. On the evening of September 16, 19.69, the accused an<! his wife were seen together at the house.

KQtkhai is at distance 0£ 2! furlongs from Shilaroo. At about 10.30 p.m. on September 16, 1969 the ac~used went t~ the re~i­de11ce of Shri Sudershan Kumar Mahaian (PW 15), Na1b Tehs1l· dar who exercised the powers of second class magistrate, ":t Kotkhlli. The accused appeared to be nervous and told Shn Mahajan that he had murdered his wife. Shri Mahajan told the accused to sit down and be composed. On enquiry of Shri M.aha-jan, the accused stated that his wife was of loose character and had given birth to an illegitimate son. His relations with her were comrquently strained. The accused, who was wearing Kachha and coat, added that he had tried to commit suicide by jumping into nulla but had somehow survived. Shri Mahajan thereafter recorded statement PH of the accused, wherein the accused stated that he had murdered his wife by giving her three Khokhri blows. According to the accused, he had enquired from the wife regarding the father of the child, whereupon she had abused him. He con-se,quently killed her, There was no reference to the attempt at suicide in statement PH of the accused.

At about 10:45 p.m. Shri Mahajan called his peon Manga~ Ram (PW 10) and sent him to the police post at Kotkhai to call the officer incharge of the police post. Mangat Ram went to the police post and arrived there at 10-50 p.m. At the police post he told Head Constable Bhag Singh (PW 13) that an accused in murder case had come at the residence of the Naib Tehsildar and the police was wanted there. Entry 26, copy of which is PY. was made in the daily diary of the police post at 10-50 p.m. regarding the above intimation given by Mangat Ram. The entry was signed by Mangat Ram.Head Constable Bhag Singh then went to the residence of Shri Mahajan Naib Tehsildar. TI1e accused, who was present there, was put under arrest by t,he Head Constable. The Head Constable found that the coat and Kachha of the accused were wet. Writing PH was also handed over by the Naib Tehsildar to the Head Constable. The Head Constable returned with the accused to the police post .and made entry in the daily diary. Intimation about the occurrence was also sent to police station Theog a> well as to the Superintendent of Police.

At about 12 mid night, Head Constable Bhag Singh went to th~. village of the accused. He awakened Poshu Ram (PW 7), Mani Ram (PW 8) and Bhagat Ram (PW 16) and went to the house of the accused with those witnesses. The door of the verandah of the accused was found bolted from inside. Poshu Ram PW jumped into the verandah and unbolted the door. The door of the residential room of the accused was found closed and was opened. Torch light was thrown inside and the dead body cf Churi deceased was found lying in pool of blood. There was

quilt up to the chest of the body. no~mber of injuries were found on the body. Khokhri, its scabbard, males_ hirt and pair of tongs were lying near the body stained with blood. The Head Constable then took steps for keeping watch o;ver the houSD.

Police station Tbeog is at distanl 3 of 20 miles frclil Shi!ll[QO. Sub Inspector Devi Singh of Theog police station wus on the ni§ht of Scpiember 16, 196<; aw&y to Gajairi at dist<:nce of five or six miles from Theog in connecticn with fair tilcre. At about mid night the Sub Inspector received innmation that murder had taken place at Kotkhai. The Sub Inspector acco~dingly went in truck to Kotkhai and reached there at about 3 a.m. The Suh Inspector took rest at the police post and after sunrise went lo the place of occurrence. . The accused too was taken by the Sub Inspector to the spot. The party reached the house of the accused at about 8 a.m. Inside the room the Sub Inspector found the dead body of ·Churi deceased lying on the floor. The Sub Inspector prepared .injury statement and inquest report. · The blood-stained clothes as well as Kilokhri P. 1 and its scabbard were taken into possession and were made into sealed parcels. The dead body of Churi deceased was sent for post mortem examination to Civil Hospital Kotkhai. Post mortem examination was performed at the said hospital by Dr. G. C. Gupta at ,6 p.m. on Scpkmber 17, 1969. Parcels containing the blood-stamed articles which had been taken into pos;ession from the spot were sent to the C)lemical Examiner and the Serologist, whose reports showed that human blood was found on the Khokhri, scabbard and the male shirt.

The accused was sent to judicial ·1ock up on September 17; 1969. On September 29, 1969 Sub Inspector Devi Singh made an application to PW 6 Shri Raj Kumar Sharma, magistrate first class Theog for recording the confessional statement of the accused. The accused was also produced before Shri Sharma. Shri Shanna then apprised the accused of the conseq ucnces of confession. The accused volunteered to make confessional statement. .Shri Sharma, however, considered it necessary to give him time to thlnk over the matter. The accused was accordingly ordered. to be produced on C'ztober 4, 1969. Shri Sha1ma, who .also holds his G.__ eourt at Kasumpti, could not visit Theog on October 4, 1969. · The accused was directed to be produced before Sbri Sharma on October t 8. 1969. On that day the accused declined to make any confessional statement.

. At the trial the accused stated that he had b~n married to 11 Cl>uri deceased in 1957. It was admitted ·by the accused.tMt Churi had· given birth to Joginder about fuilr .yean af111r :ibe martiiige, but 'he denied having ttiaJtreatu! Chun. '1'!1e ~ll.91!d admitted that Churi had come to bJS house. on:the Sh1natti dayi

bul, according to him, the child too had c0111e along wilh her. '\s regardS the date of ·occurrence, the accu>cd stated that he was with Churi in the house during the day but at 6 p.m. he left fqr Kolkhai leaving 'his wif.i: alone at the house. The accused denied having gone to Shri Mahajan and having made any confe>sional statement on the night of occurrence. It was also denied by the a~cused that his Kachha and coat were. in wet condition at ti time of Ills arrest. As regards the biood-stained Khokhri aod shirt, the accused stated that those articles did not belong to him The accused further made the following statement :

"I had cordial relations with my wife for the last 14 years. I claim the son to be my own. He is not illegitimate. I left my house at 6 o.m. on 1st of Asuj )ast year. It was Tuesday, 2026 Dk. leaving my wire a( home, to ·see documentary Jilm being exhibited at Kotk}iai. Gaddu Ram was with me in the show. The picture finished at about 9-30 p.m. I was taken by the police to the Police Post from the bazar. I was called through police constable who was not produced as prosecution witness. I was given beating at the police post. A.S.l. was there besides other Foot Constable. My signatures were obtained on paper. I do not know what had been written on that. It was disclosed to me by the S.H.O. next morning that my wife had been murdered, and I was taken to my village. From there I was brought to Theog. I am innocent and have no hand in the crime."

No evidence was produced in defence.

Learned Sessions Judge accepted th1; prosecution case that it was the accused who had caused injuries 10 Churi deceased, as result of which she died. Reliance in this connection was pla~cct upon the other evidence addt!ced by the p10secution in the case as well as upon the confession made to Shri Mahajan PW. On appeal the learned Judges of the High Court in maintaining the conviction of the accused relied upor. the confession made .by the accused to Shri Mahajan PW as well as upon the other circum-stances of the case. The confession was found to have been amply corroborated by the other evidence on record.

The present appeal was filed by the acwsed-appellant through jnil. Arguments have, however, been addtessed on his behalf by Shri Narayana Rao, who has contended that the material on reord is not sufficient to justify the conviction of the accused-aµpcllJnt. Admissibility of the confessional statement of the accused recorded · by Shri Mahajan PW has also been que>tioned. As against that, Mr. Khanna on behalf of the State has convassed for the correct~ ness of the view taken by the High Court.

It cannot be disputed that Churi deceased died as result of the injuries ihllicted upon her. Dr. G. C. Gupta, who p<r-formed. po3t mortem examination on the dead body of the deceas-ed, found ten injuries on the body of the deceased, out of whi~h the follow'ng three were individually sufficient to cause death m the ordinary course of nature : u "(1) Punctured wound right side of the neck, 2

"(1) Punctured wound right side of the neck, 2 inches diameter, It inches deep.

(2) Punctured wound 2" di:;metcr, lt" deep, 2" below injury No. I.

(3) Incis~ wound 6"X l"X !" on left side of the neck."

· Besides the above three injuries, there were one incis'd wound

OH the left eyebrow, two incised wounds on the left forearm, on'! incised wound on the fingers of the left i1ar.d, one inciscJ wound on the right hand and one incised wound in the right arm. scratch was also found on the right hand. The punctured and incised wounds, in the opinion of the doctor, could be ~aused by Khokhri P. 1 Larynx and trachea were found to be tom and punc-tured. Probable time between the reczipt of injuries and de~th was five minutes, while between death and post mortem was 19-} hours.

According to the prosecution case, the injuries found on the body of Churi deceased were caused by tite accused. The accused, as stated earlier, has denied this allegaliJn. 1 In order to biing the cha1ge home to the accused, the prosecution has relied upon the confessional statement PH of the accused recorded by Shri Maha-jan as well as the other circumstances of the case.

It has been argued on behalf of the accused-appe;J.mt that confessional statement Ex. PH is n.:>t aJmissible in evidence. In this connection it is pointed out that Shri Mahajan was second class magistrate and there is nothing on the record to indicate that he was specially empowered by the State Government to record confession. The confession, it is further stated, was recorded durinl!; the investigation of the case and as it was not recorded in the manner presctibed by section 164 of the Code of Criminal Prccedure, the same is inadmissible in evidence. In this context, we find that according to sub-section ( 1 ) of section 164 of the Code of Criminal Procedure, any Presidency Magistrate, :iny Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the State Government may, if he is not polic~ officer, record any statement or confession made. to him in the course of an investigation under this cha,oter • (Chapter XIV of the Code) or under any other law for the time being in force or at any time afterwards before the commencement

of the enquiry of trial. There is. no material on tho record to indi-

cate that Shri Mahajan was second cla&s magistrate who had oeen specially empowered by the Statlil Government to record confession. Indeed, Mr. Khanna on behalf of the re&pondent-State has argued the case on the assumption that Shri Mahajan was not specially empowered in this behalf. Question as to whe-the1 confession recorded during the investigation of case by second class magistrate not specially empowered was admissible in C;Vidence was considered by this Court m the case cf State of U liar Pradesh v. Sing hara Singh and Others. (1) It was held that the record of such confession could not be put in evide11..e under sections 7 4 and 80 of the Indian Evidence Act. Reliance in this connection was placed upon the decision of the Judkial Ccm1U1ttee in the case of Nazir Ahmed v. King Emperor.(') Argument was further advanced in Singhara Singh's case that oral evidence of the magistrate to prove the confession was admissible. This con-tention was rejected by this Court in the following words :"When statute confers pow~r on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been -iven to him. Now the power has been conferred by s. 164 on cenaiu ma,gistrates of higher classes. Obviously, it was not inte.nded to confer the power on magistrates of lower classes. If, there-fore, proper construction of s. 164, as we have held, is that magistrate of higher class is prevented from giving oral evidence of confession made to him be-cause thereby the safeguards createj for the benefit of an accused person by s. 164 would be rendered nugat0ry, it would be an unnatural construction of the srction to hold that these safeguards were uot thought nece>sary and could be ignored, where the confession had been made to magistrate of lower class and that such magistrate was, therefore, free to give oral ev1denc0 of the confession made to him. W cnnnot put an inter-pretation on s. 164 which produces the anomaly that whilt; it is not possible for higher class magistrates to Practically abrogate. the safeguards created in s. 164 for the benefit of an accused person, it is open to lower class magistrate to do so. We, therefore, think that the decision in Nazir Ahmed's case (supra) also covers the case in hand and that on the principles there applied, ~ere to oral evidence given by Mr. Dixit of the confes-sion made to him must be held inadmissible."

Mr, Khan!!~ on behalf o! the State concedes that in view of the above dec1s10n, confession recorded by second class magistrate

(2) LR.63 I.A. 372.

not specially, empowered during the investigation of case is. not admissible in evidence and no oral evidence in re;pect of that confession can also be led at the triai. Mr. Khanna, however, contends that the restriction on the aJmbsibility of the i;bove evidence would operate only if the contession is recordt:d during the course of investigation. If, however, the confession is 1\!COrd-eJ at stage prior to the commencement of investigation, there would be no bar to the admissibility of such confes;ion. Refer-ence in .this connection has been made to the case of In re Yondra Narasimha Murthy.(') In that case an accused·afte1 committing mu1der w:nt to second class magistrate and made statement that he had killed the deceased. The otatement wa; recorded by . the magistrate and was signed by the accu;cd. It was lield that the aforesaid statement was admissible in evidence. Dealing with the contention that there had not been compliance with section 164 of the Code of Criminal Procedure, the court observed that the p~>son making the confession was not an accused at the time he went to the magistrate artd no investigafon of cnme registered against him was in progress at that tim~.Question consequently arises whether statement Ex. PH was rewrded by Shri Mahajan during the investigation of the case or whether it was recorded before the commencement of the investi-gation. In this connection we find lhat the time mentioned by Shri Mahajan of the recording of conf~ssional statement was 11 p.m. while the intimation which was given by Mangat Ram (PW 10) to the police regarding murderer havmg come t0 the resi-dence of Shri Mahajan was entered in the daily diary dt 10.50 p.m. Head Constable Bhag Singh (PW 13) ~ft.er hwing made that entry proceeded to the residence of Shri Mahajan and on arrival there put the accused under arrest. It is well established that the discovery and arrest of the suspected offende1 is one of the essen-tial steps in the course of an investigation (see in this connection H. N. Rishbud and lnder Singh v. The State of Delhi(') and The State of Madhya Pradesh v. Mubarak Ali.(') We are, therefore, of the view that the contention advanced on behalf of the appellant that the confessional statement Ex. PH was recorded during the investigation of the case cannot be deemed to be devoid of force. It is not, however, necessary to dilate upon this aspect of the matter because we are of the opinion that even after excluding the con-fes:.ional statement PH from consideration, the other material on record proves the guilt of the accused.

It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani 'Ram (PW 8), · whl• is the uncle

(2) [1955] I S.C.R. 1150.

(I) A.LR. 1966 A.P. 131.

ol tfle accused, and Bhagat Ram school teacher (PW 16). . Ac-cording to Bhagat Ram, he saw the accused and the deceased to, . gether at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram. (PW 7) saw the accused and the deceased at their house on the evening Qf the day of occurrance. The accused also does uot deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused '\·ith the deceased, as would be shown hereafter. were strained would, in the absence of any cogent explanation by him, point to his guilt.

· The evidence of Naf?Ju (PW 2), mother of the deceased, shows that tlie accused had· been illtreating Churi deceased. It is further in the testimony of Girju (PW 1) that the accused had Khokhri at his house similar to Khokhri P. 1 which was found near the dead body of the deceased an<l with which the injuries on the body of the deceased, according to Dr. Gupta. could have been caused. Besides that it is established by the <:vidence of Mangat Ram (PW 10) and Shri Mahajan (PW 15) that the accused on the night of occurrence at about 10.30 p.m. went to !he house of Shri Mahajan and talked to him. Shri Mahajan thereafter sent foi: Head Constable Bhag Singh through Mangat Ram. Head Constable Bhag Singh has deposed rng:irding his having arrested the accused at the house of Shri Mahajan. The: dead body of Churi deceased was thereafter discovered iying in the house of the accused. · The discovery of the dead ·body from the house of the accused can thus be traced to tk visit of the accused to the residence of Shri Mahajan.The various circumstances. referred to above, in 01,1r opinion, clearly point to the conclusion that it was tl1e accused and none ebe _who was responsible for the mutder of Churi dece~sed. The plea of the accused that he had gone to see film show at Kotkhai on that evening and that the murder of the deceased was com-mitted during his absence cannot be accepted. Had the nccused gone to the film show, the persons with whom he s:it at the film show must have noticed his presence there, but no evidence has been adduced to show that anyone noticed the accused at the film show. According to the accused, Gaddu Rain was with him (It the film show. Gaddu Ram has, however, not been examined as witness. The film show at Kotkhai, which had been arranged by the Publicity Department, according to Head Constable Bhag Singh PW, lasted from 7 to 8-30 p.m. Assuming' that the accused Went to the film ~how, it would not have taken more than l 0 or

15 minutes for the accused to return to hi; house after the film show. The accused would thus be presert al his house at about 9-30 p.m. when the present occurrence took place. Had some-one other than the accused murdered his wile Churi, the accused would have raised hue arid cry and this fact must have ~ttracted to the spot his neighbours like Poshu Ram PW. The accused wouid have also in that event . gone and made report to the police. The conduct c;>f the accused in neither raising hue and cry nor going to the police even though his wife was murdered in his house is hardly consistent with his inn0cen~e. The version of the accused that he was taken by the i::olice to th~ police pest from the bazar cannot be accepted because there is nothing to· shOIY that the police was aware of the murder of Churi deceased before the visit of the accused to the house of Shn Mahi1jan. On tl1e contrary, ihe evidence on record establi>hcs beyond any manner of doubt that the dead body of the dec.:11~cd wa;; recovered after the accused had visited the house of Shri Mahajan. We are, therefore, of the view that .it was the a~cused and none else who· caused injuries, to Churl deceased as result of which she died. We, therefore, maintain his conviction.

So far as the sentence is concerned, we are of the view that it is not fit case in which the extreme penalty need be exacted from the accused. It is the case of the prosecution itself that the accused suspec~ed the fidelity of Churi deceased and believed that Jciginder had been born to her as result of her adulterous con-E duct. Had Joginder been the son of the arcus~d, the accused wouid have had natural affection for Lile er.lid and it is difficult to believe that he would have insisted upon Churi staying with him without the child. It is also the case of the prosecution . that shortly before '!he occurrence, th>~ accused enquired from the· deceased regarding the father of the boy and the deceased there-F uprn abused him. The act of the deceased in abusing the accused must have been taken oy the accused to be adding insult to the· injliry by an unchaste. wife. In view of tbi;; above, it would, in our opinion, meet the ends of justice lf the accused is awarded' the lesser penalty. We, therefore, alter hi8 sentence into that of: imprisonment for life.