KASTOORI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) MST. Kistoori appellant, her son Mahesh aged 17 years and her daughter MST. Premlata, aged 15 years were tried in the court of the Sessions Judge, Alwar for an offence under sec. 302 read with sec. 34 IPC. The learned Session Judge found the appellant guilty under sec. 304, Part Two I. P. C. read with sec. 109 I. P. C. The other two accused were also found guilty under sec. 304 Part Two I. P. C. and they have been released on probation of good conduct. They have not come up in appeal against their conviction, nor has the State filed any appeal or revision so far, against their release on probation of good conduct. MST. Kistoori appellant has been sentenced to rigorous imprisonment for five years.

(2.) THE case against her was that on 21st of May 1962 she sat on the legs of her deceased daughter-in-law Mst. Sharda, aged 20/21 years while Mahesh and Mst. Premlata throttled her to death. It is said that the appellant did not like the way of her daughter-in-laws's living and she also often complained that she had not brought a good dowry from her father's house. THE appellant is a Brahmin by caste and is the wife of Kishenchand compounder who was posted during that period at Lachhmangarh. Shyam Suder the husband of the deceased was also in service and posted at Jaipur. Dr. Jagdishnath who conducted the post-mortem examination on the body of Mst. Sharda stated that she died of Asphyxia. He found the following external injuries on her body : - (1) Ante-mortem bruise on the middle of neck extending to left side 2-3/4" x 2" scattered and diffused; (2) Ante-mortem bruise on right side of neck 1/4" x 3/4" (3) Ante-mortem bruise on the left side of chin 1/2" x 1 /3" (4) Ante-mortem bruise on the right side of neck lower most portion l-1/2"x l/6" (5) Ante-mortem brusie on the right forearm 1/2" x 1/6" (6) Ante-mortem bruise on dorsum of left waist 1/3" x 1/4" (7) Ante-mortem bruise on right side of face just above lip on the right side 1-1/4" x 1/2". (8) Ante-mortem bruise on upper lip 1-1/4" x 1/2". (9) Ante abrasions (3 small marks 1/4" x 1/4", 1/5" x 1/5" & 1/6" x 1/6") on the right ankle. (10) Ante mortem abrasion on bridge of nose 1/3" x 1/5". (11) Abrasion on right side of loin just below nara 1" x 1/2". THE finding of the learned Session Judge that Mst. Sharda died of strangulation has not been challenged in this Court. THE conviction of the appellant is based on the retracted confession (Ex. P-7) made by her, before Shri K. M. Sahay, Sub Divisonal Magistrate, Rajgarh on 28th of May 1962. THE learned Judge found corroboration on the appellant's confession from the following facts : - (1) She was at the place of occurrence; (2) From the injuries on the deceased; (3) From the medical evidence; and (4) From the fact of broken pieces of her bangles. THE learned counsel for the appellant contends that the statement (Ex. P. 7) does not amount to confession, that the Sub Divisional Magistrate committed illegality in giving oath to the appellant at the time of recording Ex. P-7, that it was as a result of inducement that the appellant made the statement, that it was not true and was not corroborated in material particulars. THE learned counsel has pointed out that Ex. P-7 was made on account of inducement is patently clear from the confession itself. My attention is invited to the reply to question No. 6 of the prescribed form. THE answer runs thus : - "police people have of course told me that if I would tell the truth and make a plain statement, perhaps the magistrate might take pity on me and may give me some advantage. THE Judge being pleased with my truthfulness may give me some advantage. " In answer to question No. 7, she replied that she was aware that she would not be sent back to the custody of the Police. She had no inconvenience either at the jail or while she was in Police custody but if she was released, she would be able to look after young children at her house. On the basis of the answer to question No. 6, it is contended that the confession is hit by sec. 24 of the Evidence Act. Reliance is placed on Dinanath Sunderji Ravte vs. Emperor (1 ). Sec. 24 of the Indian Evidence Act runs, as under : - "a confession made by an accuced person is irrelevant in criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference-to the proceedings against him. " Before the provisions of this section are applied, the court has to see firstly, whether the confession has been made by any inducement, threat or promise having reference to the charge against the accused person ; secondly, that the said inducement, threat or promise has proceeded from a person in authority, and thirdly whether in its opinion, it gave the accused person grounds which would appear to him to be reasonable in supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It is not possible to lay down as to what language is sufficient to constitute an inducement. Much would depend upon the effect the words used were likely to create on the mind of the accused having regard to all the circumstances of a particular case. It is always a question of fact depending upon the circumstances of each case whether certain words used have not had certain effect on the mind of the accused. In Pyarelal Bhargava vs. THE State of Rajasthan (2), their Lordships of the Supreme Court observed : "the threat inducement or promise must proceed from a person in authority and it is a question of fact in each case whether the person concerned is a man of authority or not. What is more important is that the mere existence of the threat, inducement or promise is not enough, but, in the opinion of the court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of the accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him : while the opinion is that of the Court, the criterion is the reasonable belief of the accused. THE section, therefore, makes it clear that it is the duty of the court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case. " In Hashmat Khan vs. Emperor (3), it was held that - 'the expression "you had better tell the truth" has always been held to import a threat or promise unless the words are qualified in some manner. THE words do not mean mere exhortation to tell the truth, for the accused had already been questioned by the police. THE words are susceptible of the interpretation, that the accused was told that it would be better for him if he told the truth and that amounts to an inducement. " In the case (1) relied on by the learned counsel for the appellant, 'the accused had told the Magistrate that he had been told to tell the truth by the Sahib i. e. Police Superintendent who told him to' tell the truth and he would be released. ' THE learned Chief Justice observed that - ". . . . . . once the accused had told the Magistrate that he was making the confession under inducement it was no use whatever continuing to record the confession. " THE confession was excluded from consideration in that case. In Ibrahim vs. Kling-Emperor (4), it was held that : "it is a positive rule of English criminal law that no statement of an accused is admissible in evidence against him unless it is shown by the prosecution t]o have been a voluntary statement, that is, not obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. THE rule excluding evidence of statements made by a prisoner when induced by hope held out or fear inspired by a person in authority is a rule of policy. THE law does not presume such statements to be untrue but from the danger of receiving such evidence, Judges have thought fit to reject it for the due administration of justice. " In Durga Dutt Vs. THE Siate (5), it was held that : "sec. 24 does not require that the accused should be able to prove that he made the confession under any inducement, threat or promise, as mentioned in the section, but the words used are "appears to the Court to have been caused by any inducement etc. " If, therefore, there are circumstances, from which it appears that the confession was not made voluntarily, the Court would be justified in rejecting that confession even though there is no such material on the record which might amount to the proof of its being involuntary. THE fact, that there was no evidence amounting to proof, of the fact that any inducement, threat or promise was given to the accused, would not compel this Court to reject off-hand the statement of the accused in the committing magistrate's court as well as in the Sessions Court that the confession was obtained from him by improper means. It is necessary to examine the circumstances under which the confession was made, so that the court might be able to hold whether it appeared to it or not that the confession was obtained by any inducement, threat or promise. It is true that the accused may not be able to substantiate his allegations about beating by any evidence, but the circumstances in the case may suggest that some force might have been used with him. Even though there may not have been any beating the circumstances may be created so that fear may be engendered in the mind of the accused that it would serve no useful purpose, if he did not get his confession recorded. "