NANHKOO MAHTON Vs. EMPEROR

JUDGEMENT

(1.) The appellant Nanhkoo has been convicted under Section 211. I.P.C. by the unanimous verdict of a jury on a finding that an information laid by him on 25th May 1935 before the Assistant Sub Inspector at Mokamah, which he confirmed the same evening before the Sub-Inspector of P.S. Sarmera was false, and by making it he falsely charged and instituted criminal proceedings against Munshi Mahton and Sheocharan Nahton.

(2.) The child of the accused an infant of eight months died on 24 May 1935 in village Govindpur, P.S. Sarmera but the accused went first to police station, Mokamah where his statement was taken in the form of fardbeyan by the Assistant Sub Inspector who after taking down the statement sent the informant to the Sub-Inspector of Sarmera. The latter officer read the statement to Nanhkoo who confirmed it and the officer then drew first information report on the basis of it. The allegation was that the two accused had come to the house of Nanhkoo in his absence, had thrown down his wife causing the fall and death of the child by injury to the head and had snatched away the hasuli from the neck of his wife. The hasuli was described in detail, mention being made of an inscription of the name of the informant engraved upon it. On investigation of the case the Sub-Inspector came to the opinion that it was wilfully and maliciously false, and the Court of Session has given effect to that view of the facts. The only point of law that could be taken in connection with the question of fact was that the Court was wrong in allowing a statement of accused made on 29 May to go to the jury. This was a statement made by him before a Magistrate who recorded it under Section 164, Criminal P.C. The Magistrate did not caution Nanhkoo in the manner prescribed for warning a confessing accused and did not record the statement in the form prescribed for recording confessions.

(3.) The answer to this argument is that at time Nanhkoo was not an accused person but a witness and the statement which the Magistrate recorded was not a confession It was, however, an admission and as such relevant and admissible in evidence under Section 21, Evidence Act, subject to being properly proved Besides the record of the statement we have the oral evidence of the Deputy Magistrate who recorded it. Therefore the admission in evidence of this statement was correct in law. In this statement the accused said that as far as he knew nobody killed his daughter, that is to say he withdrew all the charges he had preferred on the 25th. Incidentally he denied having made those charges before the Police. Then it is suggested that as he reported the incidents not as an eyewitness but as having heard of them from his wife, there was no evidence on which it could properly be held that he made the report in bad faith or that he did not make it in good faith relying on the statement of his wife. The wife naturally has not been examined as a prosecution witness. Whether the accused could have made the report which he did in good faith, in the circumstances of the particular case, was a question of fact for the jury, but we have noticed that the first information report of the accused contains a mention that he had seen with his own eyes injury on the head of the dead child, and the doctor found no such injury. Therefore on the facts there is nothing to be said against the verdict. It is not based on inadmissible evidence.