- (1.) THIS is an appeal by the accused Ganesh son of Dhanna Teli of village Kapren, District Bundi, against the judgment of the Sessions Judge, Bundi, dated the 15th October 1949 by which he convicted the accused of an offence under sec. 302 I. P. C. and sentenced him to transportation for life.
(2.) KESRILAL alias Kesra son of Kanha Teli of village Batawari, Tehsil Nanwa, came to the house of the accused in Kapren on the 9th of July 1948. The wife of the accused Ganesh and the wife of KESRILAL were both sisters. It is said that during the night between the 10th and nth of July 1948 he was murdered by the accused while asleep in the house of the accused. The accused is said to have inflicted an injury on the head of KESRILAL by means of a hammer thus causing his death. KESRILAL cried when he received the first blow of hammer and Bheria, Sundra and Modia, neighbours of the accused Ganesh, came to his house and enquired from him as to what had happened but the accused told them that his son had raised that cry in sleep and that nothing had happened. All of them therefore returned to their houses. The accused then buried the dead body of KESRILAL in his own house in order to hide the offence. About 20 days after this incident when KESRILAL did not return to his house his father Kanha went out in the search of his son. He came to Kapren and made enquiries and was told by the accused that his son had left Kapren long before, but when he came to know from the neighbours of Ganesh that his son had come and lived in the house of the accused and that a cry was heard during midnight by some of his neighbours, he suspected that something had gone wrong with his son. He therefore lodged a report at the police station Kapren on the 31st of July 1948. The police recovered the dead body of KESRILAL from the house of the accused from the information received from the accused on the 1st of August 1948 and the dead body was identified to be that of KESRILAL by his father Kanha. A hammer was also recovered from the house of the accused by the police which is alleged to have been used by the accused in murdering KESRILAL. A confession of the accused was also ecorded under sec. 164 Cr. P. C. by Mr. Rampratap Sharma, First Class Magistrate, Patna, but the accused in the course of the enquiry and trial retracted from it. The case of the accused at the time of the trial was that Kesrilal came to his house and on the day of occurrence while the accused was sleeping in his house Kesrilal came and strangulated his throat but he woke up and Kesrilal ran away and was pursued by the accused. In hurry Kesrilal fell down from the first floor of his house in the courtyard and cried and broke his head. The accused was afraid lest he may be he d responsible for the murder of Kesrilal and hence he buried the body of Kesrilal in his house which was recovered by the police at his instance. In this appeal, the learned counsel of the accused has contended that the trial court was wrong in admitting the confession of the accused into evidence against the accused, as the Magistrate did not, before recording the statement, put any question to the accused in order to find out the voluntary nature of the statement of the accused. Reliance has been placed on A. I. R. 1936 P. C. 253, A. I. R. 1917 Pat. 475 and A. I. R. 1940 Pat. 163. It may be observed that the conviction of the accused in this case entirely depends on his confession recorded under sec. 164 Cr. P. C. which, if held to be inadmissible in evidence, would leave a big gap in the prosecution evidence against the accused and consequently the conviction of the accused in that event would not be sustained. The learned Government Advocate has also conceded that in case the confession under sec. 164 Cr, P. C. made by the accused is ignored very little evidence will be left on the record of the case to secure the conviction of the accused under sec. 302 I. P. C. It is therefore essential to examine whether the contention of the learned counsel for the accused that the confession is inadmissible in evidence is tenable. It is argued that the Magistrate did not care to put any questions to the accused before he took down the confession of the accused to ascertain that the statement which the accused was going to make was voluntary. The confession recorded by Mr. Rampratap Sharma, First Class Magistrate, Patan, under sec. 164 Cr. P. C. is marked Ex. P. 4. It is clear from a perusal of Ex. P. 4 that the Magistrate did not put any question to the accused before recording his confession to find out the voluntary nature of the statement of the accused but after having recorded the confession the Magistrate asked the accused the following question : - "have you given this statement due to some body's pressure or inducement" to which the reply of the accused was that he had made the statement voluntarily. " The next question asked by the Magistrate was "is Bajrang at Capren? Were both of you under some intoxication at that time? and the accused's reply was "no, he is absconding for ten or fifteen days and we were made to smoke a Chilam of Ganja by Kesra. " Two more questions were asked as regards the presence of policeman present at the time of the recording of the statement and as regards the fact of the detention of the accused in the judicial lock-up for 24 hours before the recording of the confession to which the accused replied by saying that he had been in the judicial lock-up for 24 hours before the making of the statement and that there was no policeman in the court room at that time. Even though the Magistrate did not question the accused as regards his motive for the making of the confession which he put regarding the making of the statement under pressure or inducement and the answer of the accused that he had made the confession voluntarily, goes to show that the Magistrate did ascertain after recording the confession as to whether the accused had made the confession voluntarily or otherwise. Sec. 164 (3) Cr. P. C. lays down that "a Magistrate shall, before recording any such confession, explain to the accused person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. According to the provisions of the law it is necessary for a Magistrate to ascertain from the accused before recording the confession as to whether the person making the statement was making it voluntarily. In the present case, the Magistrate instead of having ascertained from the accused as regards the voluntary nature of his statement before recording the confession did do so after having recorded the confession. The question that arises for determination in this case therefore is whether simply because the Magistrate failed to put any question to the accused before recording the confession to satisfy himself regards its voluntary nature and because he did put such question after having recorded the confession in disregard of the provisions of sec. 164 Cr. P. C. in this behalf, the statement of the accused would be rendered inadmissible in evidence. The learned counsel of the accused has cited A. I. R. 1936 P. C. 253 wherein it has been held by their Lordships of the Privy Council that where the Magistrate has neither acted nor purported to act under sec. 164 or sec. 364 Cr. P. C. and nothing has been tendered in evidence as recorded or purporting to be recorded under either sec. 164 or sec. 364, oral evidence of the Magistrate is not admissible. In that case the conviction of the accused solely depended on the evidence of the Magistrate before whom the accused had confessed his guilt, but the Magistrate did not record the confession of the accused under the provisions of sec. 164 or s. 364 Cr. P. C. The Magistrate drew up a memo of what the accused had told him and he was put in the witness-box and he had made a statement against the accused that the accused did confess his guilt in his presence. As the formalities prescribed by sec. 164 or sec. 364 were not complied with by the Magistrate nor was any statement accorded by him the oral evidence of the Magistrate and the memo drawn up by him were held to be inadmissible by the Privy Council. In that case their Lordships observed as follows: - "a decision in Burmah favourable to the appellant 3 L. B. R. 173 was also called to the attention of the Board as were a number of other cases which however mainly turned upon the scope and effect of sec. 533 and upon the extent to which that section operated to cure defects and to enable statements or records not complying with the requirements of the material sections of the Code to be made admissible in evidence. In this case no question of the operation or scope of sec. 533 arises and their Lordships desire to express no opinion on that matter. " It is therefore clear that in that case the operation or scope of sec. 533 Cr. P. C. was not considered by their Lordships and no opinion was expressed in this behalf. Sec. 533 Cr. P. C. is as follows: - "533 (1) If any court, before which a confession or other statement of an accused person is recorded or purporting to be recorded under sec. 164 or sec. 464 is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement it shall take evidence that such person duly made the statement recorded, and notwithstanding anything contained in the Indian Evidence Act, 1872 sec. 91, such statement shall be admitted if the error has not injured the accused to his defence on the merits. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision. " In dealing with the operation of sec. 533 in A. I. R. 1940 Pat. 163 Varma J. has observed as follows: - "by using provisions of sec. 533 a defect or form can be removed but not a defect of substance. Where the Magistrate is able to say in court that he had asked the necessary questions but had forgotten to record them, then sec. 533 would be applicable and sec 91 Evidence Act will cause no difficulty since sec. 533 expressly states that it shall not do so. But where the Magistrate does not or cannot supply the defect in the written form with oral evidence, sec. 533 cannot help. Hence, if no questions required by sec. 164 (3) were actually asked, sec. 533 will not help; but if the Magistrate's evidence shows that the questions were asked, then that is merely a defect of form and sec. 533 will cure it. " A similar question arose in A. J. R. 1914 Cal. 600 and it was decided that where a Magistrate instead of questioning the accused as to the voluntariness of a confession before recording the confession asked him after the confession was recorded, the defect was merely one of form and did not alter the character of the confession. The statement of the Magistrate in the present case goes to show that he took precaution of keeping the accused in the judicial lock-up for 24 hours before recording his statement and the Magistrate has written at the foot of the confession a certificate as is required under s. 164 Cr. P. C. In his statement as well he has made it clear that he had warned the accused that it was not necessary for him to make any confession and that if he made any confession it could be used against him in the subsequent proceedings. From the questions which the Magistrate put to the accused after having recorded the confession as regards its voluntary nature the Magistrate stated that he was satisfied that the accused made the confession voluntarily. The defect which has been pointed out by the learned counsel of the accused in this case is obviously one of form only and it is cured by the provisions of sec. 533 Cr. P. C. because the Magistrate had carried out the requirements of sec. 164 Cr. P. C. by satisfying himself at the end as regards the voluntary nature of confession. In answer to the question regarding voluntary nature of the confession the accused could have stated what he felt about the nature of the confession. In substance, therefore, the Magistrate has complied with the provisions of sec. 164 but instead of doing so before recording the confession he did do so at the end. This is a defect which can be termed as formal. Such defects are cured by sec. 533 Cr. P. C. Under the circumstances of this case the confession of the accused which has been admitted into evidence by the trial court cannot be regarded as inadmissible in evidence. The learned counsel of the accused had contended that the ruling in A. I. R. Cal. 600 which has been referred to above has been over ruled by A. I. R. 1936 P. C. 253 but it appears that the learned counsel has not read the judgment of their Lordships of the Privy Council careful y. As has already been remarked above, their Lordships have not expressed any opinion as regards the scope or operation of sec. 533 Cr. P. C. and it cannot be said that the decision in 1914 Cal. 600 is over ruled by the decision of their Lordships of the Privy Council in this behalf. The confession of the accused which has been recorded under section 164 has been subsequently retracted by him. It has been admitted by the accused at the time of the trial that the deceased Kesrilal came to his house and stayed with him. The evidence of Bhairon Teli P. W. 2, Jagannath Teli P. W. 5, and Bajranga Teli P. W. 8 also shows that the deceased Kesrilal came to Kapren and stayed with the accused. The confession of the accused is corroborated by the statements of Bheria, Sundra & Modia Lohar, in so far as they have stated that during the night at about 12 O'clock they heard a cry from the house of the accused Ganesh and they came to the house of the accused after having heard it and upon enquiries were told that the son of the accused had cried in sleep. The dead body of the accused was recovered by the police at the instance of the accused which was buried in one of the rooms of the house of the accused. The frontal and the parietal bones of the skull of the deceased were found fractured at the time of the post mortem examination. The opinion of the doctor was that the injuries of the head were responsible for causing the death of the deceased Kesrilal. A hammer has also been recovered from the house of the accused which it is said, was used in inflicting injuries on the head of the deceased by the accused. The confession of the accused has, therefore, been corroborated in material particulars by the statements of the aforesaid witnesses. The relations of the accused and deceased were alleged to be strained and it is said that this was the main reason why the accused committed this murder. The accused has himself admitted at the time of the trial that his relations with the deceased were not good, which affords an explanation for the commission of this offence. The confession of the accused goes to show that the accused intended to cause the death of Kesrilal and with that intention injuries were inflicted by the accused on the head of Kesrilal while he was sleeping and the injuries inflicted by the accused on the head of Kesrilal caused his death. The ingredients necessary for proving an offence of murder have been established against the accused in this case. The learned counsel of the accused has laid stress on the statement of the Medical Officer who conducted the postmortem examination in showing that the injuries found on the head of the deceased Kesrilal could also have been caused by a fall from the first floor of the house. The defence version of the accused is, it is said, supported by the medical evidence of the doctor. As regards the point how the injuries were caused on the head of the deceased Kesarlal the only evidence that has come on the record is that of the confession of the accused which goes to show that it was the accused himself who intentionally, in order to murder Keshrilal, caused injuries on his head with a hammer. When there is specific evidence on this point, it is not necessary to make any surmise as to how the injury was caused. The statement of the doctor has also made it plain that the injuries could have been caused by the hammer that has been recovered by the police from the house of the accused. In view of the confession of the accuseds the finding of the court below that the injuries were caused on the head of Khesrilal by the accused does not appear to be wrong.
(3.) IN conclusion, it may be said that the offence of murder under sec. 302 I. P. C. has been proved against the accused Ganesh and the trial court was not wrong in convicting him. The sentence of the accused appears to be lenient but having regard to the position of the law and the practice then obtaining, the sentence passed by the lower court is not inappropriate. This appeal is therefore dismissed. .;