NAGLA Vs. STATE

JUDGEMENT

(1.) THE appeal is by Nagla against his conviction under secs. 302 & 201 of the Indian Penal Code. He has been sentenced to death under sec. 302 but no separate sentence has been passed under sec. 201. THE reference is by the Court, namely, the Civil & Additional Sessions Judge, Balotra, for confirmation of the sentence of death.

(2.) THE prosecution story was briefly this. THE appellant Nagla is the son-in-law of Bena of village Jas-wantpura. He used to live in the house of his father-in-law along with his wife Mst Sanjki. It is said that the deceased Bena had gone about midnight on the night between 1st & 2nd of February, 1950 to hunt along with the appellant. THE appellant returned alone in the morning but Bena did not. When questioned as to where his father-in-law was, he replied that he had gone away to village Golana. It appears that a perfunctory search was made about Bena who, however, has never returned to his village. No report of the incident was made for over five months. On the 5th of July, 1950, however, Bena's wife Mst. Kishni made a report to the Tehsildar of Jaswantpura in which she said that her husband had gone with her son-in- law Nagla that night and her son-in-law had returned alone and had told them on enquiry that her husband had gone to Golana. As there was no trace of her husband since then, she was making this report and prayed for an investigation. This report was forwarded by the Tehsildar to the Sub-Inspector, Jaswantpura, who enquired into the matter. Eventually, two persons were prosecuted in connection with the alleged murder of Bena, namely, Nagla appellant and one Phulia who has been acquitted by the Additional Sessions Judge.

(3.) THIS case is of 1866 and since then the words "duly recorded" have been introduced in the Code of Criminal Procedure in sec. 287 which corresponds to sec. 366 of the Code of 1861. The words "duly recorded" were not directly considered in Re Abidulla Ravuthan alias Kabib Ravu-than (I. L. R. XXXIX Mad. 770)but the principle laid down in that case has been generally followed by the High Courts. It was held that if in a criminal case the prosecution had not let in any evidence implicating the accused or some of the accused in the crime charged, the Magistrate is not entitled under sec. 342 of Criminal Procedure Code to put questions to such accused or to invite them to make a statement; and this rule equally applies to trials before the Sessions Courts. Answers to questions received by the committing Magistrate in contravention of sec. 342 of the Criminal Procedure Code are not admissible in evidence against the accused in in the subsequent trial before the Sessions Court.