Decided on February 13,1952

NAGLA Appellant
STATE Respondents


- (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.
Nagla & Phulia both pleaded not guilty in the court of Sessions. Nagla denied completely that he had gone with his father-in-law for the purpose of hunting on that night and said that he had been implicated falsely as his wife wanted to marry another person after getting rid of him and his mother-in-law was supporting his wife in the matter.

The evidence that has been led against the appellant is all circums-tancial and there is no eye-witness to the alleged murder. We propose to examine this evidence in detail. The first witness is Mst. Sanjki, the wife of the appellant. She said that her husband and her father were not on good terms because her husband did not use to put his heart into earning his livelihood. For this reason, her father did not allow her to sleep with her husband. As to the incident of the night itself, she said that her husband had returned after watering the fields late in the night and she was awake at the time. He asked her father to accompany him for shooting rabbits and her father went away with her husband. At that time, her father was wearing a turban and a bandia and had put his shoes on. He was also wearing silver karas in his hands and had taken two pachhevris with him. He was wearing one of these pachhevris while with the other he had covered himself as it was very cold. Next morning, her husband returned alone and on enquiry told them that Bena had gone away to Golana. Three days later, her husband is said to have confessed to her that he had murdered her father and had buried him in a pit because of the bad blood between the two. He also threatened to kill her in case she disclosed this fact to anybody. We are not impressed with the evidence of this witness. In the first place, it is very unlikely that she noticed at that time of the night what particular things her father was wear-ing when he left the house, even if it is true that she woke up and heard him going away. In her statement to the police she bad not said that she was awake when her husband returned in the night. All that she had said was that she woke up when she heard the sound of the False i. e. the gate and she called to her father who replied that he and her husband were going out to shoot. If the statement to the police is correct, she could hardly have noticed what her father was wearing when he left the place, for her father was just going out when she woke up. Besides, she said in her evidence that she was beaten by the police so that she might stick to the statement she had made before the Sub-Inspector, though she added on being questioned in re-examination that what she had said in the Sessions Court was true. Her admission, however, that she was beaten by the police so that she might stick to her statement makes us very doubtful whether her story is correct. Further, we find it impossible to believe that her husband told her after three days that he had murdered her father, for, if that were so, she would certainly have told her mother about it. Her explanation that she did not tell her mother about it because she was afraid of her husband does not appear to be satisfactory. Further, her evidence does not show that though there might have been some bad blood between her husband and her father, there was any motive for the commission of the murder by the appellant at the particular time. She admits that though her father did not allow her to sleep with her husband, her mother permitted her to do so, while her father was away. This particular reason for bad feelings between her father and her husband had been continuing for a long time and it does not appear that anything particular happened about January 1950 which might have led the appellant to murder his father-in-law at about that time. On the whole, therefore, we are not satisfied with the evidence of this witness and find it difficult to rely upon her.

The next witness is a young boy aged ten or twelve years named Sabla. He said that on that night he and Phulia who was the other accused, went out to drive the bullocks that were damaging their crops. When they were returning, he saw the appellant warming his hands before a fire near the field of one Roopa Brahmin. The appellant called Phulia and the two of them went to him. A gathri was lying near the appellant and this witness asked the appellant what the gathri contained and the appellant told him that he had murdered his father-in-law and the gathri contained the dead body. The appellant asked the two of them to help in removing the gathri and they refused. But the appellant threatened to implicate them in the murder if they did not help in putting the gathri on his head. Thereafter, the appellant gave one rupee to Sabla and also gave the two of them a pachhevari, a pair of shoes, a bandi and a kara. These things were later recovered and that is how they are of importance in this case. Thereafter, Phulia & Sabla came away. They made no mention of this incident to anybody and the explanation given by Sabla is that Nagla had threatened to implicate them in the murder if they disclosed it. We consider that the evidence of this witness also is unreliable. He admits that the bundle was not opened and he and Phulia did not see what it really contained. If that was so, there was no reason why the appellant, who had committed the murder, should have drawn attention to himself by calling these people and then telling them that the gathri contained the dead body of Bena. Further, the evidence given by this witness before the police was very different from the evidence which he gave in the Sessions Court. In one of his statements, he said that the incident took place after Holi which would mean that he could see nothing, for Bena had disappeared much before Holi. Further if it is true that Nagla-confessed to him that he had just murdered Bena, we fail to see why he did not relate this story to someone soon after. We cannot believe his explanation that he was so afraid of being implicated falsely in a murder case that he kept quiet. We consider that the evidence of this witness also is unreliable.

The next witness to whom we may refer is Mst. Kishni mother-in-law of the accused. She has given the story that her husband was taken away by Nagla on the pretext of shooting rabbits that night and that he never returned while Nagla returned next morning. In cross-examination, however, she admitted that she was asleep at the time when her husband left the house and as such her evidence is not of much value as she cannot prove that her husband left with Nagla that night. It is also curious that she denied a part of the report which she is said to have made to the Tehsildar. She said that she did not tell the Tehsildar that she believed that Nagla had killed her husband Bena and had buried him somewhere in a pit. Her evidence, therefore, proves nothing against the appellant.

Then there is the evidence of a number of witnesses about the recovery of certain article which Bena was said to be wearing when he left the house. It is unnecessary to consider this evidence in detail because it relates to Phulia who has been acquitted. The only evidence to show that Phulia had got these articles from the appellant is in the statement of Sabla. But we have already held that the evidence of Sabla is unreliable.

Then we come to the statement of Gajendra Narain who investigated the case. According to him, he inspected the site which was pointed out by Nagla. He says that he saw a spot of blood on a big stone to which some human hair were sticking. He also says that be recovered the skin of the deceased and twenty-eight bones of the deceased at the instance of Nagla. He further said that a piece of turban of the deceased was also recovered at the instance of Nagla. Lastly, he said that the, pachhevari belonging to the deceased with blood stains on it was taken in possession from the possession of Nagla. Leaving out the recovery of the pachherari, the other evidence of Sub-Inspector Gajendra Narain is, in our opinion, of no value even if it be that these things were recovered at the instance of the appellant. We may in this connection refer to the case of Pulu-kari Kottaya and others vs. Emperor (A. I. R. 1947 P. C. 67 ). In that case it was held that "the fact recovered" within sec. 27 of the Indian Evidence Act is not equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history of the object produced is not related to its discovery. In the setting in which it is discovered. Information supplied by a person in custody that he would produce a knife (concealed in the roof of his house does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that the knife was concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant".

In the present case, the bones or the skin or the human hair that are said to have been discovered at the instance of Nagla have not in any manner been connected with Bena. It is not even known whether the bones belonged to a male or a female. All that can be said is that they belonged to a human being. Under these circumstances, these recoveries, in our opinion, have not much value in this case, particularly after the statement of the appellant that the place, from where these things were dug out, is used for the burial of Bagries and Bhils. The appellant, of course, denied that he pointed out the places from where these bones etc. were recovered. Further, it appears strange to us that a blood-stain with human hair sticking to it should have been found five months after the alleged murder and the evidence of Sub-Inspector Gajendra Narain does not advance the case against the appellant any further. As for the pieces of turban, it is enough to say that we are not prepared to believe that these pieces, which have been called rotten pieces of cloth by the Doctor, could have been identified by anyone. We place no reliance, therefore, on the identification of these pieces as belonging to the turban which Bena was wearing when he is supposed to have left his house. Then there remains the pachhevari which was recovered from the possession of the accussed. It is said to have been blood-stained but there is no proof of that and we are not prepared to believe that blood-stains could have been found on it five months after the alleged murder. Further, the appellant said in his statement that it belonged to him. He added that it was out of fear of the Sub-Inspector that he was forced to say that it belonged to Bena and that Bena was wearing it at the time of his death. Apparently the appellant had been using this pachhevari for so many months and if it really belonged to the deceased and had been taken away by him when he was last seen alive, the wife of the deceased as well as his daughter would have immediately questioned the appellant about his possession of the pachhevari. The very fact that it remained with the appellant for five months without these women questioning him about this shows, in our opinion, that it belongs to the appellant as claimed by him.

This is all the evidence against the appellant and if it stood by itself, it completely fails to prove any case of murder. As a matter of fact, from this evidence it cannot even be said with certainty that Bena is dead.

This brings us to the last piece of evidence in this case, namely, the statement of the appellant in the committing Magistrate's Court. It is this statement which is the main basis of his conviction and we, therefore, think it right to give it here in detail: Ques.- The witnesses depose that you and Phoolia killed your father-in-law Benia & buried him and you distributed his clothes etc. also gave them to witness Sabla. Then later on you got these things recovered in police at your instance. What have you to say? Answer - I killed. In addition to my-self my wife and Begri, Lakhia also joined in killing him. The evidence which has been recorded against me is true. The evidence against Phoolia is false It is true that one Rupee was paid to Sabla. Pachhevari Bandia and mathli were sold by us to Phoolia. Question - Have you to depose anything more? Answer - The matter about stick is incorrect. He was killed with a sword. The sword belonged to Lakhia. The stick does belong to me and the second stick belongs to Phoolia. When we were sitting with the gathri of Benia after having tied it, Phoolia and Sabla did come to drive bullocks. Two rupees were given to Phoolia. I gave a pair of shoes. It was given for sale six to seven days back. Pachhe-vari,bandia and mathli were given on the third day after killing him"

It is obvious that in this statement the appellant admits that he killed his father-in-law Bena. It is contended on behalf of the State that this statement is evidence under sec. 287 of the Code of Criminal Procedure which reads as follows : - "the examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence".

Undoubtedly, therefore, this statement of the appellant made before the committing Magistrate would be evidence in the case provided it proved that it was duly recorded. If the statement is not duly recorded, there is consensus of authority that it is not admissible at all. But, even if the statement has been duly recorded, a further question will arise whether the statement is true and the court is prepared to believe it. The earliest case on the point is VI S. W. R. (Cr.) 73, Queen vs. Ranjeet Sontal. In that case, it was pointed out that it was necessary that there should be corroborative evidence in support of an inculpating statement made in the court of the committing Magistrate. It was further said that "sec. 366 of the Code of Criminal Procedure provides that the examination of an accused person before the Magistrate shall be given in evidence at the trial; and if there are no grounds for questioning the statement then made, either as regards the manner of recording it, or as to the facts stated in it, the prisoner can be convicted on that statement without other corroborative evidence. " This case therefore, shows that if the manner in which the record is made and the facts mentioned in the statement cannot be questioned, a conviction can be based on that statement alone without corroborative evidence.

(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.
In an earlier Madras case Queen-Empress vs. Viran and others (I. L. R, IX Mad. 224) it was held that the examination of an accused by a Magistrate before there was any legal evidence against the accused was illegal and, therefore, the record of such examination could not be used in evidence against the accused. Similar was the view taken by the Allahabad High Court in Queen-Empress vs. R. Hawthorne (I. L. R. XIII All. 345) where it was held that an accused could not be questioned under sec. 342 Cr. P. C. before any evidence whatsoever is recorded against him. The principle, of course, is that the examination of the accused under sec. 342 is made in order that he may explain the circumstances appearing in the evidence against him, and if there is no evidence at all against him, there are no circumstances which he has to explain,

The matter was considered again by the Madras High Court in Emperor vs. Kuppammal (A. I. R. 1941 Mad. 1) and it was held that a statement which was not duly recorded would not be admissible under sec. 287 of the Code of Criminal Procedure. The learned Judge went on to say that where in a case in which the evidence against the accused fails far short of making out a prima facie case against the accused and the Magistrate proceeds to examine the accused and record his answers, the examination of the accused cannot be said to have been duly recorded within the meaning of sec. 287. We would only like to add that the committing Magistrate has not to weigh the evidence that is produced before him and all that he has to see is whether, if the evidence that has been produced before him is accepted as true, a prima facie case for commitment to the court of Sessions is made out. If that is so, the Magistrate would be entitled to examine the accused and the statement that is so recorded would be held to be duly recorded.

We have, therefore, to see whether in this case there was evidence which, if believed, would entitle the Magistrate to commit the accused to the court of Sessions. This evidence consisted of the statements of Mst. Kishni, Mst. Sanjki & Sabla and the evidence of recovery of various articles and on that evidence, if believed, the Magistrate, in our opinion, was entitled to commit the case to the court of Sessions as he actually did. He could, therefore, examine the appellant under sec 342 of the Code of Criminal Procedure in order to explain the circumstances appearing against him. Unfortunately, however, the question that he put to the appellant was not quite correct inasmuch as he told him that the witnesses had deposed that the appellant and Phulia had killed Bena and buried him. There was no direct evidence on this point and no witness had deposed that the appellant and Phulia had killed Bena and buried him. But the mere fact that this mistake was made in putting the question would not make the statement as not "duly recorded" when there was some evidence of a circumstantial nature which, if believed, would justify the committal of the appellant to the court of Sessions. We are, therefore, of opinion that the statement made by the appellant in the committing Magistrate's Court cannot be ruled out on the ground that it was not duly recorded.

We then come to the next question, namely, whether we can accept the statement of the appellant as true. The explanation of the appellant as to how he came to make this statement is that the Sub-Inspector was standing outside the court near a window and he made that statement out of fear of the Sub-Inspector. This explanation is not satisfactory. But we cannot overlook the fact that the evidence that has been produced before the committing Magistrate connecting the appellant with the crime was comparatively weak and if the appellant had not made that statement, the case against him would have failed. It seems strange, therefore, that the appellant made such a statement and put himself in danger. It is very difficult to say what led him to do so but we feel that it is still open to us to accept that statement as correct or not. In this connection, we may refer to the case of Fakira Appaya vs. Emperor (A. I. R. 1915 Bom. 249 ). That was a case where an accused made a statement before the Magistrate and his explanation was that he had been induced to do so by a Patel. While charging the Jury, the Judge pointed out that there was no reason why the accused should have implicated himself falsely in such a serious charge at the instance of that Patel. The Jury convicted the accused. The conviction was, however, set aside by the High Court on the ground of misdirection as only one side of the case was presented to the Jury. The learned Judge pointed out that there was no substantial evidence whatsoever against the accused when he made the statement and there was no apparent occasion or reason why consistently with the usual motives of human nature, he should, at this late date, have gone out of his way suddenly to convict himself of a crime of which no one else could have convicted him. It is, therefore, open to the court to consider even when the statement is duly recorded whether it is prepared to act on that statement. We feel that in this case also there was no apparent reason why, when the evidence against the appellant was so weak, he decided suddenly to admit that he had killed Bena. But for this admission it would have been difficult even to hold that Bena was dead. Further, the statement is to the effect that his wife and one Lakhia also joined in killing Bena. This is something which it is impossible to accept and there is no suggestion on behalf of the prosecution that the wife of the accused was also privy to the murder or that anyone of the name of Lakhia had anything to do with it. It seems that something impelled the appellant not only to inculpate himself but to accuse his wife and Lakhia of this murder, and this in itself is sufficient indication of the fact that the statement which the appellant made in the committing Magistrate's Court was not true. When, therefore, there is no satisfactory evidence to prove that Bena is really dead, it seems to us impossible to accept this isolated statement made by the appellant in the committing Magistrate's Court. It is remarkable that he had made no confession before the trial. He also went back on this statement in the Court of Sessions; but something which is very difficult to understand impelled him to admit the crime in the committing Magistrate's court and to involve his wife and Lakhia Bagri also in it. It is true that no corroboration is required of a statement of this kind. But where, as in this case, even the fact of the death of Bena is not established by any satisfactory evidence, it seems to us unsafe to rely on this statement suddenly made by the appellant in the committing Magistrate's court without any apparent rhyme or reason. Under these circumstances, with no evidence worth the name on behalf of the prosecution to prove the guilt and his statement in the committing Magistrate's court being of a doubtful quality, we feel that the benefit of the doubt should be given to the accused. We, therefore allow the appeal, set aside the order of the court below and acquit the appellant. He shall be released at once if not required in any other connection. The reference is hereby rejected. .

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