- (1.) THIS is an appeal by Ramsingh against his conviction under sec. 302 of the Jaipur Penal Code and sentence of life imprisonment. The case has been reported for confirmation of the sentence because under the law of the former Jaipur State, a sentence of imprisonment for life had to be confirmed by the High Court.
(2.) THE prosecution story was briefly this. THE deceased Mst. Sia Dulari was the wife of the appellant. She was married to the appellant about four years before the incident took place on the 17th of May I949. She was then about fifteen years old. It is said that the relations between the appellant and his wife were strained because her father used to take her away often to his house. On the last occasion she had returned from her father's house about eight days before the 17th of May 1949. Her father again came to take her away on the 26th of May and she then made some complaint to him against her husband. This had led to a quarrel between the appellant's father and the father of the deceased. This annoyed the appellant and consequently, it is said that he murdered her on the morning of the 17th of May 1949 by stabbing her with a dagger. THEreafter, the appellant himself went to the Thana and made a report of the incident. This is Ex. P. 13. THE police immediately arrested the appellant and took up investigation of the case. THE condition of the appellant when he arrived at the Thana to make the first report has been described by Sub-Inspector Ramzan Ali. Both the appellant's hands were smeared with blood. He was putting on two Dhoties one above the other and the Dhoti which was next to the skin was saturated with blood. THEre was also an injury on the right knee of the appellant and the blood on his hands and clothes appeared to be fresh. THE Sub-Inspector took possession of the blood-stained Dhoti and prepared a recovery list. THEreafter, the appellant was taken to his house where the dead body of his wife was found in a room in the upper story. THEre were several wounds on the dead body and fresh blood was lying on the floor. An inquest report was prepared then and there. THE Sub-Inspector also found a sheath of a dagger lying near the head of the dead body. THE clothes which the deceased was wearing were also taken in possession and sealed and sent later for examination by the Chemical Examiner. Mst. Sarju, P. W. 1, produced a dagger and that was also taken in possession as it was supposed to be the instrument by which the murder had been committed and was blood-stained. On the 20th of May 1949 the appellant was produced in the court of Pt. Jagdish Narain Sharma, Assistant City Magistrate, Jaipur, early in the morning which would be about 7 A. M. The Magistrate took him out of police custody and put him in the judicial lock up. Thereafter, he was sent for at about 11. 25. A. M. and bis confession Ex. P. 4 was recorded. There was no eye-witness of the murder and the appellant has been sent up for trial on the basis of circumstantial evidence and his own confession which he later retracted. The appellant pleaded not guilty. He admitted that he had gone to the police to make a report but said that he had found his wife lying dead and had, therefore, gone to inform the police. He said at the Thana that his wife was lying dead and that the matter should be enquired into. The police, however, arrested and took him to his house. The body of his wife was then sent to the hospital and he was taken back to the Kotwali and the police asked him who had killed his wife. He replied that he did not know. Then they began to beat him and he was told that if he confessed, he would be saved. He, however, refused to make a confession. Thereupon, he was beaten mercilessly for some time. Then the beating was stopped for two hours. Thereafter, he was again given a severe beating and was told that if he did not confess, he would be beaten still more. So in order to avoid further beating, he confessed and signed the first report Ex. P 1 which, in effect, amounts to a confession. Further, the appellant denied that he was putting on two Dhoties at the time when he went to the police station. He also denied that the Dhoti Ex. P. 4 which had been taken from his person and which was saturated with blood belonged to him. He also denied that his wife had made any complaint against him to her father on the previous day. He admitted having made the confession Ex. P. 13 before the Magistrate but said that he had made that confession because of the inducement offered to him by the police As for the injury on his knee, he said that it had been caused because of his having fallen down on the Khura (pavement ). No evidence was produced in defence. It is thus clear that there is no direct evidence of eye-witnesses in the present case and the guilt or otherwise of the appellant has to be decided on circumstantial evidence and the confession that he has made. Before, however, we deal in detail with the evidence available, we should like to consider certain points of law which have been raised on behalf of the appellant. The first point that has been urged is that the appellant was given no opportunity 10 produce defence and was not questioned either in the court of the committing Magistrate or before the Sessions Judge whether he would like to produce defence. It is, therefore, urged that as a mandatory provision of the law has not been complied with, the trial is vitiated. There is no doubt that the committing Magistrate did not ask the appellant whether he would produce defence. Sec. 210 of the Criminal Procedure Code provides for the framing of the charge. Then comes sec. 211 which lays down that the accused shall be required atonce to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial. There is also provision for a further list being given by the accused but this depends upon the discretion of the Magistrate. In view of the provision of sec. 211 (1) it is the duty of the Magistrate to ask atonce the accused to give a list of his witnesses and the list may be given either orally or in writing. It appears that this provision was not complied with in this case and the accused does not appear to have been asked to give a list of his defence witnesses. The order-sheet of the 5th September 1949 in the committing Magistrate's Court shows that the charge was framed on that day and the accused wanted to produce defence in the committing Magistrate's Court and consequently, the 7th of September was fixed. The order-sheet of the 7th of September, however, does not say anything on this point and merely states that the accused was being committed to the court of Sessions. It may, however, be mentioned that the appellant was throughout represented by a Lawyer in the committing Magistrate's Court and his lawyer also made no attempt to put in a list of defence witnesses. When the case came to the Sessions Court, the Sessions Judge did not ask the appellant whether he wanted to produce defence. The note of the Sessions Judge in this connection is this: - "accused has not named any witnesses before the Magistrate. He has no right now to have the witnesses summoned. " Our attention has been drawn to sec. 289 (1) in this connection which provides that after the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce any evidence. Further, sec. 291 provides that the accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance but he shall not, except as provided in sec. 211 and 231, be entitled of right to have any witness summoned other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial. It appears from the proceedings before the Sessions Judge that there was some question about defence, though there was no strict compliance sec. 289 (1) by the Sessions Judge. It appears that the accused was represented by counsel in the Sessions Court also throughout but no application was made by counsel under sec. 292 to the effect that witnesses were present and should be examined or that in view of the fact that the accused was not asked to give a list in the committing Magistrate's Court, he should be permitted, in the interest of justice, to summon witnesses in the Sessions Court, A review of these facts shows that there was technically no compliance with the (provisions of sec. 211 by the committing Magistrate and sec. 289 (1) by the Sessions Judge. It is, in our opinion, essential that the committing Magistrate should always question the accused whether he means to adduce any evidence and ask him either to give a list of his witnesses orally or produce a written list. It is also essential that the Sessions Judge should ask the accused whether he means to adduce any evidence as provided in sec. 289 (I ). The question, however, still remains whether a trial becomes vitiated because these sections are not strictly complied with. We are of opinion that this is a mere irregularity in the proceedings and is covered by sec. 537 of the Code of Criminal Procedure and unless it can be shown that the omission has in fact occasioned a failure of justice, the trial, cannot be vitiated. We, therefore, turn to the question whether in this particular case it can be said that the -omission to put this question has in fact occasioned a failure of justice. It seems to us that considering that the appellant was represented throughout both in the committing Magistrate's Court and in the Sessions Judge's Court and the omission to, put the question about defence is not so serious and that if the appellant had really any defence to offer, his counsel must have either in one court or in the other insisted on the right which the appellant had under sec. 211 or under sec. 291 Cr. P. C. The very fact, that counsel never tried to produce a list of witnesses shows that the accused really had no witnesses to produce. Nor does this appear to us to be a case in which much good could have been done to the accused by the production of defence evidence on his behalf, the case depending practically on circumstantial evidence. We may also point out that in the grounds of appeal to this court which the appellant sent from Jail, he makes no grievances of the fact that he was not questioned whether he would produce defence. Further, he does not suggest that he wanted to produce defence evidence and the Sessions Court shut him out from doing so. Under these circumstances, we are of opinion that no prejudice has been caused to the appellant and the sentence cannot be reversed on this ground alone. We now turn to the second point that has been urged on behalf of the appellant and it relates to the first information report. As we have already pointed out, this report was made by the appellant himself and contains his confession of guilt. The argument of learned counsel is that as such this report is completely inadmissible under sec. 25 of the Indian Evidence Act, which provides that no confession made to a Police-Officer shall be proved as against a person accused of any offence. First information reports are reduced to writing under sec. 154 of the Code of Criminal Procedure and are admitted in evidence as they are not statements to a Police Officer in the course of any investigation, which begins after the first information report has been made. A question, however, arises whether those first information reports which contain a confession of the accused should be completely ruled out in view of sec. 25 of the Indian Evidence Act. The first authority on the subject is Dalsingh vs. King Emperor (A. I. R. 1917 P. C. 25 ). In that the question arose whether all first information reports made by accused persons were inadmissible in evidence. That was a case in which the accused was tried for the murder of another man's wife and for injuring that man with an axe. It was also said that that man's brother had beaten the accused in return with a lathi. The accused went to the police and made a report that he had been beaten by that man and his brother and, therefore, he was making the report. It was held by their Lordships of the Privy Council that all reports made to the police by the accused were not inadmissible and that that particular report was admissible because it did not amount to a confession. The principle, therefore, which was laid down in this case was that such first information reports which did not amount to a confession were admissible in evidence even if they were made by an accused. The next case to which we may refer is Emperor vs. Lalit Mohansingh Roy (A. I. R. 1921 Cal. III ). In that case, the accused had committed murder and went and made a report at the Police Station in which he confessed to the murder. The question then arose whether the whole report was inadmissible or only that part of it which was in the nature of a confession. The learned Judges held that the preliminary portions of the first information report giving a history or narrative of events preceding the night of occurrence were admissible as statements not being confessions. They also pointed out that the principle that portions of a statement or confession might be admitted and others excluded was recognized in the Indian Evidence Act itself vide sec. 27 The next case to which refe-rence may be made is Pakala Narayana Swami vs. Emperor (A. I. R. 1939 P. C. 47 ). This case does not deal directly with the point before us but has explained the meaning of the word "confession" in the following words at page 52: - "in their Lordships' view no statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate subsequently all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e. g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. " Learned counsel for the appellant has relied on certain cases to which we may now refer. The first of these is Harji and another vs. Emperor (A. I. R. 1918 Lah. 69 ). That was case of murder and the report had been made by one of the accused, Hira. The learned Judges were of the view that a first report was generally very valuable corroborative evidence of the testimony of the person who made it but where it was made by an accused, it was not admissible in evidence at all and constituted no corroboration either of the case against himself or of that against any other co-accused. No reference, however, was made in this case to any other authority and there is no reasoning in support of the view that the entire first information report made by an accused is inadmissible in evidence.
(3.) THE next case is Harnam Kishna vs. Emperor (A. I. R. 1935 Bom. 26 ). This was also a murder case in which the first information report had been made by the accused. THE learned Judges were of the view that if the first information report was given by the accused to a Police Officer and that informant admitted his own guilt, it was a confession which sec. 25 did not allow to be proved. If the confession showed opportunity for the offence, motive for the offence, and commission of the offence, it could not be said that the portion of it which dealt with opportunity, or the portion of it which dealt at with motive, could be treated as no part of the confession. THE Cal. case which we have referred above was distinguished in this case on the ground that the whole confession dealt with the events occurring on the night of the offence. THE learned Judges however, doubted whether the principle on which the Calcutta High Court proceeded in that case could be justified. THEre was no reference, however, to the Privy Council cases which we have mentioned above. The last case relied upon is Emperor vs. Knmmoji Brahman (A. I. R. 1940 Pat. 163 ). That was a case of murder and the first report was made by the accused. The learned Judges were of the view that the first information report was inadmissible as it was a confession to the police and as such under sec. 25 Evidence Act, it would not be proved as against the accused. They distinguished the Cal. case we have mentioned above on the ground that there were no parts of the first information report which could be extracted from the rest and said to be relevant in themselves and admissible as not being incriminatory. Their view was that the first information report in the case before them formed a single connected story and no part of it had any meaning or significance except in relation to the whole. They thought it would, therefore, be wrong to extract fragments from it in which the accused did not make any self-incriminating statement, for, there were no such fragments which in themselves had any relevance or significance. On a careful consideration of these authorities, we are of opinion that the entire first information report is not inadmissible in evidence merely because it has been made by an accused person. Parts of it which can be properly separated from the confess* ing part can be and should be admitted in evidence as first information. The view taken by the Cal. High Court in the case mentioned above appears, if we may say so with all respect, to be sound and in consonance with the view enunciated by their Lordships of the Privy Council in (A I. R. 1917 P. C. 25 ). Where, therefore, it is possible properly to separate parts of the first information report by an accused from that in which he had made a confession, that part which can be so separated should be admitted in evidence. It is with these principles in mind that we turn to the first information report made by the appellant in this case. We are of opinion that the following portion of the report can be properly separated from the portion which amounts to a confession and should be admitted in evidence, namely - "about four years back Mst. Sia Dulari, the daughter of Phulji, was married to me. She was of fourteen or fifteen years of age. I have had resentment against her for she would not learn the printing work that I wanted to teach her. She was taken away frequently and without my consent by her father owing , to which I had to cook my food several times. She had come to me only eight days back and again her father came to take her away. She made a complaint to her father against me which led to a voilent quarrel between my father and that of hers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I have left hear lying wounded and breathing in the tibari and there is no hope of her surviving. I. have come here having covered her with a cloth. The dagger is also lying by her. Hence I lodge this report". The next point that has been urged on behalf of the appellant relates to the confession that he made before the Magistrate. The learned counsel urges that this confession should be ruled out because questions which ought to have been put to the appellant before the Magistrate recorded the confession in order that he may be satisfied that it was voluntary were not put to the appellant. Our attention is drawn to the provisions of sec. 164 of the Code of Criminal Procedure in this connection. Sub-sec. (3) of that section reads as follows : - "a magistrate shall, before recording any such concession, explain to the 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; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect : - " The learned counsel urges that this sub-section requires three things : (1) a warning that the accused is not bound to make a confession, (2) a further warning that if he does so, it will be used against him, and, (3) it is the duty of the Magistrate before he records any confession to question the person making it to satisfy himself that it was made voluntarily. Reliance in this connection was placed on Emperor vs. Kammoji Brahman (A. I. R. 1940 Pat. 163) to which we have already referred. While dealing with the third of these conditions, the learned Judges were of the view that it was not necessary that the questions must be in any special form, but there must be some question or questions designed to reveal whether the statement was being made voluntarily. Where there was no question asked to reveal whether the statement was voluntary, the Magistrate had no jurisdiction to record a confession and, therefore, a confession recorded without asking any question to reveal its voluntary nature was inadmissible. We respectfully agree that it is the duty of the Magistrate before he records a confession to question the accused in order to satisfy himself that the confession is being made voluntarily and if no questions are put besides giving the two warnings, namely, (1) that the accused was not bound to make a confession and (2) that if he did so, it would be used in evidence against him, the confession would not be admissible in evidence as the mandatory provision of sec. 164 (3) would not be complied with. We have, however, to see what the Magistrate did in this regard. He told the appellant that there was no police pressure and inducement on him to make the confession and also asked him whether he was making the confession voluntarily. It. is thus clear in this case that besides giving the formal warning contemplated by sec. 164 (3) Cr. P. C. the Magistrate did put a few more questions in order to satisfy himself that the confession was being made voluntarily. What the value of these questions is will be considered by us later, But the confession cannot be ruled out on the ground that no questions were put and there was thus a breach of sec. 164 (3) of the Criminal Procedure Code. The confession in this case will, therefore, have to be admitted and we shall later consider whether taking all the circumstances into account, it can be relied upon. ;