CHHEDDU Vs. STATE

JUDGEMENT

(1.) THIS is an appeal from jail by Chheddu against his conviction by III Additional Sessions Judge, Kheri under Section 302, I. P. C. for the murder of his own wife on 4-9-74 at about day time at his house in village Issanagar P. S. Issanagar district Kheri and a sentence of imprisonment for life. The prosecution case was that the appellant suspected that his wife Smt. Parki (deceased) had illicit connection with one master of the village So on 4-9-74 finding her alone he committed her murder by assaulting her with a khurpa. While giving blows he was also saying that he would also not leave the master. On the shouts of the deceased, wit nesses Jia Lal (P. W. 3). Achhey Lal (P. W. 5), Bhagat (P. W. 7) and Raghunath (P. W. 9) were attracted towards his house. They saw the appellant coming out of the house with a bloodstained khurpa in his hand. They then entered the house and saw that the deceased had been murdered. They saw the dead body of the deceased lying in a pool of blood inside the house. Raghunath (P. W. 9) then went to P. S, Issanagar and lodged a report at 2.00 P. M, The police sta tion was four miles from the scene of occurrence. Sri Bishun Singh (P. W. 10) was Sta tion Officer of Issanagar at that time. The report was lodged in his presence. He left for the spot since. On reaching the house of the appellant, he found the dead body of the deceased lying in the Sehan near a verandah. He prepared an in quest report and other connected papers. He sent the dead body for post-mortem examination. He took sample of the blood stained earth from there. He interrogated some witnesses and searched for the appellant but he was not available. On 5-9-74 on receipt of some information through an informant he arrested the appellant and took from his possession blood stained khurpa, Dhoti and Sadri Vide exhibit Ka. 13. On the same day he made report to the Judicial Magistrate for recording the confession of the appellant. The confessional state ment of the appellant was, however, re corded on 9-9-1974 by Qazi Khurshed Ahmad, Judicial Magistrate (P.W. 1). On 13-9-74 he submitted a chargesheet Ex ka. 15 against the appellant. The appellant had denied the charge. He also denied that there was any illicit connection of his wife (deceased) with one master of the village or that he was angry on that ground. He also denied to have assaulted her. He also denied any recovery of the articles from his posse ssion. He made a confessional statement before the magistrate but he alleged that he did so due to the threat of the police. The learned Sessions Judge held the prosecution case to be proved not only by the confessional statement of the appe llant but also by evidence of witnesses of the prosecution and other circumstances. Accordingly he convicted and sentenced him as aforesaid. At the time of the hearing of the app eal the appellant was unrepresented. However, a young advocate JSri Arun Sinha offered to argue the case on his behalf. We accordingly gave him some days time and then heard him. We are obliged to him for the great pains he had taken in preparing this case. The factum of murder of the wife of the appellant on the date and place alleged by prosecution is not disputed. The prosecution had also tendered the statement of Dr. Ram Singh who had con ducted the post-mortem examination on the body of the deceased along with the post-mortem report. It shows the follow ing injuries on the person of the de ceased :- 1. Incised wound size 16.5 cm. X 2 cm. oesophagus completely cut on the front of neck upper part extending on both sides equally, slightly oblique, covered with blood clots, direction from left to right, underneath traches, oesophagus completely cut, all the ribbon muscless underneath blood vessels completely cut.

(2.) LACERATED wound 8 cm. X 2.5 X sclap deep on the right side of head, 6 cm. above the right ear obli que covered with blood clots. On internal examination he found that trachea and oesophagus have been com pletely cut in the upper part of the neck under injury no. 1. All the ribbon muscles of the neck both side with external jugu lar vain and external carotid artery on the left side were completely cut with accom panied nerves all covered with blood clots. There was fissured fracture of right parietal bone under injury no. 2. He was clearly of the opinion that the death took place due to these antemorten injuries. The question is only whether it was the appellant who had committed this offence. Two kinds of evidence had been led by the prosecution in support of this case. (1973 Allahabad Criminal Reports 113 = 1973 A.L.J. 251.) Some eye witnesses (A. I. R. 1957 S. C. 216) confes sional statement. On the first kind of evidence, the pro secution examined four witnesses, namely, Jia Lal (P. W. 3), Acchey Lal (P. W. 5), Bhagat (P. W. 7) and Raghunath (P. W. 9), of these Jia Lal (P. W. 3) and Achhey Lal (P. W. 5) did not support the pro secution case at all. They denied to have been the incident. "I hey were accordingly declared hostile. The remaining two wit nesses Bhagat (P. W. 7) and Raghunath (P.W. 9) however, supported the prosecu tion case. They stated that they were re turning from their fields. They heard shouts from the house of the appellant and when they turned towards the same they saw the appellant coming out of the house with blood stained khurpa. They further stated that when they entered the house they saw the dead body Smt. Parki. Then Raghunath (P. W. 9) went to the police station and lodged the report. The witnesses were independent and their pre sence was also probable because the house of the appellant lay in the way from their fields to their houses. The appellant of course did state in his state-merit that Raghunath (P. W. 9) was against him as he was holding his field on Batai but no suggestion was put to this witness in cross-examination. So this allegation has no force. Learned counsel for the appellant, however, contends that there is a contra diction between the statements of the witnesses and the facts appearing in the confessional statement (Ext. ka. 2). In the confessional statement (Ext. k a. 2) it is stated by the appellant that he con cealed the khurpa in the house itself and had himself gone to the police station to report about this incident. Then a con stable had come and recovered the khu rpa from his house. From that statement it also appears that probably the incident had taken place some time in the morn ing and thus the question of these wit nesses having seen the appellant coming out with a khurpa at about noon did not arise. This fact no doubt stands but there is other evidence on record which also does not support this part of the confessional statement. Constable Shyam Bahadur (P. W. 6), who recorded F. I. R;, stated that only Rughunath (P. W. 9) had come at 2.00 P. M. and lodged the report. The Investigating officer Bishun Swarup (P. W. 10) also stated that the ap pellant was not found in the village when he went on the spot and it was only next day that he succeeded in arresting him with a khurpa in his hand. There is no reason to reject all this independent evidence. So his part of the prosecution evidence was believable. The other part of the evidence is a confession made by the appellant (Ex. ka. 2) wherein he stated that he had killed his wife with a khurpa. Learned counsel for the appellant first contended that this confessional statement was not admissible because it was not recorded in the man ner required by law. He further contends that it being a retracted confession, it should not be acted upon without corroboration which is lacking in this case. About the manner of recording the confession the learned counsel for the appellant points out two material irregularities. One was that the magistrate had not warned the appellant that he was not bound to make a confession. He did question him for the other points but that was also done after the confession was recorded. The warning and the other questions should have been done and mentioned before recording confe ssion. The mere certificate incorporat ing these facts at the end was not substi tuted. The other defect was that there was no certificate at the foot of the statement. The certificate was on the margin. As regards the first defect, that is not fatal. Though it was desirable that a magistrate must record the warning and the question which he has to put to satisfy himself that the statement was being given voluntarily before recording a statement, the omission to record that fact at that stage is not fatal. The only im portant thing is that this must be proved that these things have been done before the confessional statement was recorded. This fact has been proved by the statement of the magistrate Qazi Khurshed Ahmad (P. W. 1) He was not at all cross-exami ned on this point. It was not suggested to him that he was giving oral statement to make up the defect in the recording of the statement, and that such precaution had not been taken. The law (Section 463 Cr. P. C.) permits such oral evidence to be given and if that is acceptable, then the statement would be deemed to have been recorded in accordance with law. The other defect pointed out by the learned counsel for the appellant also has no legal importance. In the lower court reliance was placed in the case of Badri v. State of U. P. (1973 Allahabad Criminal Reports 113 = 1973 A.L.J. 251.). But as pointed out by the learned lower court the facts of that case were different from the present one. A certificate was also purported to be given on the margin of the confessional statement, but actually it was not so. It was found that on the margin of that paper instructions neces sary to be observed by a magistrate for recording the statement under section 164, Cr. P. C. were printed. The magis trate merely signed those instructions. It was thus held that actually the magistrate had not signed the certificate required by section 164, Cr. P. C. In the present case, however, it is different. It is true that the certificate was on the margin but this fact by itself is not enough to doubt the veracity of the certificate. No space was left at the end of the page. Natura lly the certificate had to be signed either on the margin or on the next page. The magistrate chose to do so on the margin. The language of the certificate is typed and then signed by the magis trate. So the certificate was valid. It is then contended that if a confe ssion had been retracted, it cannot be the basis of conviction without corroboration. Reliance was placed for this upon a num ber of rulings, viz., Balbir Singh v. State of Punjab (A.I. R. 1957 S.C. 216.) and Sanvan Singh Rattan Singh v. State of Punjab (A. I. R. 1957 S. C. 637). Their Lord ships had observed there that though in law it was always open to the court to convict an accused on confession alone even though it was retracted at the earlier stage, by way of prudence, the court requires some corroboration to such a confessional statement. There has how ever been some change in emphasis in later rulings In Pyarey Lal Bhargava v. The State of Rajasthan(A. I. R. 1963 S. C. 1094), it was held that it cannot even be laid down as an inflexible rule of practice or prudence that under no cir cumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without cor roboration. In Ram Chandra Prasad Sharma and others v. State of Bihar and another (A. I. R. 1967 S. C. 349.), their Lordships approved this view in the case of Pyarey Lal Bhargava (supra). So it was not necessary that there should be corroboration of a con fessional statement in each and every case. In this case we are satisfied that the confessional statement made by the ap pellant was wholly voluntary. The expla nation given by the appellant that he had made the confessional statement under threat by the police is not at all-acceptable. As pointed out earlier the appellant was brought from jail after four days, when he was initially produced before him by the investigating agency, for recording his confession. So there could not have been any fear, even if any earlier, in his mind after a lapse of such a long time. There is no corroboration of his allegation that he was threatened or beaten when he was brought from the jail to the court for recording of his confessional state ment. Actually he made no allegation about it till after about seven months. The statement was recorded on 9-9-74 but this allegation was made by him at the time when his statement was recorded after close of prosecution evidence under section 313, Cr. P. C. Even no such suggestion was made to the magistrate (P. W. 1) when he was examined in court. So a bald statement of the appellant that he was so threatened was not acceptable. As observed. Hem Raj Devi lal v. The State of Ajmer (A. I. R. 1954 S. C. 462-para 8.). Hence a conviction was justified on this confession alone even if we reject the oral evidence produced by prosecution for some corroboration. But even other wise we find some corroboration on cer tain material points. As earlier observed, there is the evidence of two eye-witnesses, namely, Bhagat (P. W 7) and Raghunath (P. W. 9) having seen the appellant com ing out of his house with khurpa in his hand and we have accepted this part of the prosecution evidence in spite of a statement to the contrary on this point in the confessional statement. Then the dead body of the deceased was found inside the own house of the appellant. No one else was inside the house. If some one else had committed the offence, it was expected that the appellant would have taken some action. Hence after considering the evidence on record we are satisfied that the appellant was rightly convicted. In the result the apppeal has no force and it is accordingly dismissed. The appellant is in jail. He will serve out the sentence. A copy of this judgment may be sent to the appellant in jail through the superintendent jail concerned.