Sharma, J. - (1.) THIS is an appeal by Laxminarain who has been convicted by the learned Additional Sessions Judge, Baran under sec. 326 of the Indian Penal Code and sentenced to five years' rigorous imprisonment and a fine of Rs. 100/ -.
(2.) THE case for the prosecution is that the appellant who is a young lad of about 18 years was married to Mt. Bhanwari. On the evening of the 29th of November, 1963 Mst. Bhanwari was coming to the village from fields along with Mst. Panna, wife of the elder brother of the accused and Mst. Pansuri daughter of the maternal uncle of the accused when the accused met her outside the village and asked her to wait. Mst. Bhanwari did not stop whereupon the accused gave a lathi blow on her back and thereupon grappled with her and threw her on the ground. Mst Bhanwari got up and tried to run to wards the village, but the accused overtook her and the accused along with Mst. Panna, Kedara Khati and Lachman Dhabar began to drag her towards the nala. In the meanwhile Mst. Mathuri and Mst. Govindi who were working near the nala came to the nala and the accused sent for a rope through Kedara and after tying the hands and feet of Mst. Bhanwari with a rope which was tied to a log pipal tree nearby the accused sat on the breast of Mst. Bhanwari and began to cut her nose with a knife. When he was not able to chop off the nose with the knife he demanded another knife from Lachman who was nearby and cut off her nose with it. THEreafter, he cut off the upper liof Mst. Bhanwari. On the meanwhile two brothers of the accused, Prabhu and Ramchandar came on the stop and the accused with all his companions ran away after untying Mst. Bhanwari. Mst. Bhanwari went to Bishna who is said to be the Chowkidar of the village and the accused also accompanied her. Mst. Bhanwari related the story to Bishna who asked both her and the accused to march to the police station Barod, where the first information report was lodged by Mst. Bhanwari at about 8 P. M. THE occurrence is said to have taken place at about sunset. The accused was formally arrested. Investigation was taken in hand. The clothes which the accused was wearing were taken into the custody of the police and it is said that a knife was also recovered from him. Mst. Bhanwari was sent for medical examination. She was medically examined partly on the same night and partly the next day i. e , the 30th of November, 1953. According to the medical evidence, her nose was found cut and a contused wound was found on her upper lip and two bruises were found, one on the left foot. Some earth and broken pieces of bangles are said to have been recovered by the police on the spot and it is alleged that the earth was blood stained. The accused was challaned in the court of the Sub-Divisional Magistrate, Chhabra who committed the accused to take his trial under sec. 326 of the Indian Penal Code before the court of the Additional Sessions Judge, Baran. In his statement before the committing Magistrate, the accused admitted having heat Mst. Bhanwari and having cut he nose, but in the Sessions Court he retracted this statement and denied the charge. He said that the statement which he had made before the Committing Magistrate was due to police pressure. Eight witness were examined for the prosecution out of whom Mst. Bhanwari, P. W. 8 is the eye witness, so far as the cutting of nose is concerned. P. W. 1 Bishna deposed about Mst. Bhanwari having approached him and the accused also having gone to him at the same time and has said that Mst Bhanwari told him that her nose had been cut by her husband and that accused Lachminarain also admitted it and he took both these persons to the police, where a report was lodged by Mst. Bhanwari. He has also deposed that he found that the shirt and the waist coat of the accused which he was wearing at that lime were stained with fresh blood. He also stated that he had taken in possession a Lathi from the accused at the time he and his wife Mst. Bhanwari had come to his place. Chatra P. W. 2 is a witness who has stated that at the time of the occurrence he saw the accused giving a Lathi blow to Mst. Bhanwari when she came to him along with the sister of the accused Mst. Pansuri from side of the west. He also disposed that the accused caught hold of Mst. Bhanwari's hand and took him to a distance of about three fields from the place where he had struck her the Lathi blow He also disposed that although he could not see what happened afterwards, yet he heard the cries of Mst. Bhanwari that she was being beaten. P. W. 3 Hiralal is a Head Constable who was incharge Police Station Barod on the date of occurrence. B. W. 4 Anandilal and P. W. 5 Chandra Mohan are witnesses of the recovery of certain articles. P. W. 6 Dr. Bhanwarsingh is the medical examiner and P. W. 7 Chatarbhuj is a witness of the recovery list Ex. P. 7 which is a recovery memo about a knife, and some other things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The learned Additional Sessions Judge relied upon the evidence of Mst. Bhanwari and found support from the evidence of Chatra and the statement of Gopal which had been recorded in the Committing Magistrate's court and was taken on the record under sec. 33 of the Indian Evidence Act as Gopal had died before the trial commenced. He also found support for this evidence from the statement of the accused before the Committing Magistrate and from the recovery of certain articles, which were said to have been blood stained. Consequently, he found the accused guilty of an offence under sec. 326 of the Indian Penal Code and sentenced him as above. I have heard Mr. V. P. Tyagi on behalf of the appellant and Mr. C. B. Bhargava on behalf of the State. It is was urged by Mr. Tyagi that there is the solitary evidence of Mst Bhanwari regarding the cutting of nose and it has not been corroborated by the evidence of Chatra and Gopal who are said to have been present at the time of the occurrence. It was argued that according to Mst. Bhanwari several persons including the accused dragged her to the Nala, whereas Chatra and Gopal stated that it was only the accused Laxminarain who dragged her. It was argued that the police itself did not believe that there was any other person who took part in the occurence excepting Laxminarain and, therefore, only the accused Laxminarain was challaned. It was argued that according to the medical report, only the accused could not cause all the injuries to Mst. Bhanwari and therefore, it appears that the occurrence took place in a manner different from that given by the prosecution. It was argued that the lower court was not justified that finding support from the evidence of Mst. Bhanwari from the recovery of certain articles which were alleged to be blood stained because they were not sent to the chemical examiner and the serologist and therefore, it could not be said without doubt that they were stained with human blood. As regards the statement of the accused before the committing magistrate, it was argued that it was not voluntary nor was it true because it does not support the statement of Mst. Bhanwari. It was argued that the accused was in the police custody when he made his statement before the committing magistrate and he has said that the police officers were standing nearby and were advancing threat to him when the prosecution witnesses were being examined and at the time the accused was himself examined. It was argued that it was a trick of the police that the statement of the accused was not got recorded under sec. 1,64 of the Criminal Procedure Code because if the accused had been produced for the recording of such statement, he would have been warned that he was not bound to confess and he would then have been put on the alert. Next day, the police adopted an unfair method of putting the accused before the committing Magistrate for enquiry and on the very day, he was produced and the prosecution witnesses were examined, statement under sec. 342 of the Criminal Procedure Code was recorded and the influence of the police was still there at the time. Rulings in the cases of Abdul Salam vs. State, (1), Sullah vs. Emperor, (2),narantulsidas vs. The Kutch Government, (3) and Chandan vs. State (4) were relied upon in order to show that the statement of the accused in Committing Court under the circumstances of the present case, cannot be used for the conviction of the accused. It was further argued that the extra judicial confession said to have been made by the accused before Bishna and Gopal should not have been believed by the learned Additional Session Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I have considered the arguments of both the learned counsel. To my mind the case rests mainly upon the evidence of Mst. Bhanwari. If her evidence is disbelieved then the indirect evidence which has been produced in this case will not suffice for the conviction of the accused. If however, her evidence is believed, the other evidence is relevant only for the purpose as to how much support it lent to Mst. Bhanwari's evidence. I have, therefore, read the entire evidence of Mst. Bhanwari with great care and I find that her statement is straightforward. I do not find anything in her statement from which it might be inferred that she was falsely naming her husband as the chief actor in the matter of her nose cutting. It cannot be denied that Mst. Bhanwari's nose was cut. The evidence of Bishna and the medical evidence clearly showed that her nose had been cut. The only question that remains is as to who is responsible for that nose cutting. The time at which the nose is said to have been cut was the time of sufficient light arid it could not be said that Mst. Bhanwari was naming her husband on a mistaken identity It is quite clear that Mst. Bhanwari could have very well recognised the person who cut her nose. If any other person had cut her nose, there seems to be no reason why she should be exculpating that person and falsely implicating her own husband. As soon as her nose was cut she went to Bishna Chowkidar P. W. 1 and related before him how her nose was cut by her husband. Within a very short time she made a police report at Barod Police Station and there too she said that it was her husband who had cut the nose. There is nothing to show that between the time the occurrence took place and the time the first information report was made, there was any opportunity to Mst. Bhanwari to concoct a false case in collusion with some other persons. As seen as the reached Bishna, her husband the accused was there. The accused was all along with her from the time he reached Bishana's place, upto the time she lodged the first information report. If she had concocted a false case in collusion with some other persons, it would have been possible for the accused to say so but he had not said a word that it was at the instigation of some body that his name was falsely taken by Mst. Bhanwari. Mst. Bhanwari says in the first information report that the accused Laxminarain dragged her along with Mst. Pansuri, Kedar Khati an Lachman Dhabar towards the nala and before that he began to be labour her. So far as her be labouring with a lathi and her being dragged to the nala by Laxminarain is concerned, her statement finds support from the evidence of Chatra and Gopal who are mentioned in the first information report as the persons who were present at the time. Of course Gopal and Chatra did not mention the names of Kedar, Mst. Pansuri and Lachman Dhabar as the persons who along with the accused dragged Mst. Bhanwari but this only creates some doubt so far as Mst. Pansuri, Laxman Dhabar and Kedar are concerned and it is probable on this account that these three persons were not challenged by the police. For this reason alone, the statement of Mst. Bhanwari so far as it relates to the accused cannot be corroborated by the evidence of Chatra and Gopal. To my mind even if there were no indirect evidence to support the evidence of Mst. Bhanwari, her statement, coupled with that of Chatra and Gopal and the medical evidence would have sufficed to bring home the charge under sec. 326 of the Indian Penal Code to the accused. However, the evidence of Mst. Bhanwari finds support from the statement of the accused himself which was recorded in the Committing Magistrate's court. I do not think that the said statement should be disregarded altogether simply because the accused retracted it in the Sessions Court. I do not find any reason whatsoever why the accused should have made the statement which he made before the Committing Magistrate if it were not a true statement. The accused was represented by a counsel in the court of the Committing Magistrate and naturally he must have had consultation with his counsel before the prosecution witnesses were examined and the statement of the accused under sec. 342 was recorded. It cannot be believed that even in the Committing Magistrate's court the Police could have the audacity to din into the ears of the accused that if he did not confess his guilt when asked by the court, dire consequences would follow. It cannot be believed that either the Magistrate or the counsel for the accused himself were puppets in the hands of the police and although the police acted so daringly as to advance threats to the accused in the presence of the Magistrate neither the Magistrate nor the counsel for the accused took any exception to it. When the investigating officer was examined before the Additional Sessions Judge no question was put to him in cross-examination that the police advanced any threats to the accused. It appears to have drawned on the accused only at the time of the statement in the Sessions Court that he should invent something to get rid of his statement made before the committing Magistrate. It was argued that right from the arrest of the accused till the time he was produced before the Magistrate, on the7th of December, 1953. the accused had been in police custody. First of all there is no evidence to show that he had been in the police custody throughout, but even if he were, I do not think that under the circumstances of the case, the statement which he made under sec. 342 of the Criminal Procedure Code before the Magistrate could be held to be irrelevant. No authority has been cited to show that a statement like the one which is being attacked on behalf of the accused can be rejected under sec. 287 of the Criminal Procedure Code. In the case of Abdul Salam vs. State (l),the statement which was being considered was the statement recorded under sec 164 of the Criminal Procedure Code and it was argued on behalf of the prosecution that because that statement was struck to in the statement of the accused under sec 342 before the Committing Magistrate the statement made under sec. 164 of the Criminal Procedure Code should be considered to be voluntary and true. In that case, the statement under sec. 342 was not held to be irrelevant or in admissible but it was held that because certain circumstances gave rise to a suspicion that the accused might have been maltreated by the police before he made his confession under sec. 164, it could not be said that the statement under sec. 164 or that under sec. 342 was true. In the case of Chandan vs. The State (2), the court was considering the confession recorded under sec. 164 and it is in that connection that it was observed that the prosecution ought to prove that the said confession was voluntary as well as true. In that case also no question arose whether a statement recorded before the Committing Magistrate in which the accused admits his guilt can be considered under sec. 287 of the Criminal Procedure Code. In the case of Naran Tulsidas vs. The Kutch Government (3) also whatever remarks are there, have been made in connection with the statement under sec. 164 of the Criminal Procedure Code In the case of Sullah vs. Emperor 2) the accused was examined under sec. 342 of the Criminal Procedure Code by the Committing Magistrate and the inquiry had started, even before the complete challan was put up. Under the circumstances, it was suspected that this device had been reported to in order to get over the mandatory provisions of law contained in sec 164 of the Criminal Procedure Code and therefore, the statement of the accused was disregarded. In the present case, no such circumstances as existed in the case of Sullah vs. Emperor (2), have been shown to exist. No incomplete challan was put up before the complete challan was filed. After the complete challan had been put up the accused was sent for inquiry The prosecution evidence was recorded by the Magistrate in a normal way and thereafter the accused was examined under sec. 342 of the Criminal Procedure Code. The accused was represented by a counsel. It has been shown above that it cannot be believed that pressure was being put on the accused even when he was before the Commiting Magistrate or the examination of the accused was being taken down. Under these circumstances, it cannot be said that the statement of the accused under sec. 342 in the Committing Magistrate's court should not be considered under sec. 287 of the Criminal Procedure Code. The evidence of Mst. Bhanwari which by itself was quite sufficient for the conviction of the accused, under the circumstances of the case receives support from this statement of the accused and I am perfectly satisfied that on this evidence alone the conviction of the accused could very well be founded. On the view which I have taken above, it is unnecessary for me to consider whether the evidence of recovery or the extra judicial confession can be of any use for the conviction of the accused However, I may observe that in most of the cases, it has been observed by this Court that articles said to be blood stained are not sent by the police for chemical examination or the serologist. As in the present case such articles were not sent for chemical examination or the examination of the serologist, it cannot be said without doubt that they were stained with human blood and the learned Deputy Government Advocate has been frank enough to concede that no support should be taken from this evidence for the conviction of the accused. As there is other sufficient evidence in the case on which conviction could be based, the omission of the police in not getting the articles, alleged to be blood stained examined by chemical examiner as well as serologist is immaterial. However, there may be cases which depend mainly upon the fact whether certain articles were stained with human blood or not and if the police continues to ignore the necessity of sending such articles for the said examination, courts fail to record conviction in many a true case. It is, therefore very necessary for the prosecution to send such articles for the examination of the chemical examiner as well as of the serologist so that the offenders may not escape punishment on account of this lacuna alone. From the evidence for the prosecution which has been relied upon by me above, the guilt is brought home to the accused under sec. 326 of the Indian Penal Code Mr. Tyagi has argued that in any case the accused was a lad of 18 years and he ought not to have been given a sentence of five years' rigorous imprisonment. It is no doubt true that the accused committed a very reprehensible crime, but he is a young lad of 18 years and it appears from the statement of Mst. Bhanwari, that the accused committed the crime on the instigation of some of his family relations. Under the circumstances, I think two years' rigorous imprisonment will meet the ends of justice.
(3.) THE appeal is partly allowed, the conviction under sec. 326 of the Indian Penal Code is maintained but the sentence of imprisonment is reduced to two years' rigorous imprisonment. I do not find the sentence of fine is necessary. It is set aside. .;