TMI Blog1961 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence under s. 452 there of. The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under s. 347, 2 years under s. 365 and 3 1/2 years under s. 386, Indian Penal Code, and direct the sentences to run concurrently. When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error. In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant. Appeal dismissed. - Criminal Appeal No. 156 of 1960 - - - Dated:- 30-3-1961 - SUBBARAO, K. AND DAYAL, RAGHUBAR, JJ. For the Appellant : Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, For the Respondent : H. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta,. JUDGEMENT SUBBA RAO, J.- This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he convicted the appellant under ss. 347, 365 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the abduction, Suraj Bhan was made to write three letters to his father and put down his father's address on the envelopes. He was made to write these letters under the cover of a blanket after his bandage was removed temporarily. In the first letter he was made to write that if his father reported the matter to the police, he would not see his son again in the second letter, he was made to inform his father that in view of the attempts made by his father to trace him, his abductors had made up their minds not to release him, but in view of his entreaties they had agreed to release him on- payment of a ransom of Rs. 60,000; and in the third letter, he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment. After the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations. Meanwhile, to facilitate the smooth conduct of the negotiations, on November 29, 1954, Suraj Bhan was removed to the house of one Lachhman and was confined there till his release. Kashi Ram has a son-in-law by name Shiv Bhagwan, the son of one Durga Parshad. Dhannaram and Shiv Bhagwan kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under s. 458, Indian Penal Code. The State also preferred a revision for enhancing the sentences passed on Deep Chand. All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan. Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954. In the result, the High Court convicted the appellant not only under ss. 347, 365 and 386, Indian Penal Code, but also under s. 452 thereof. In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid. Deep Chand preferred the present appeal by special leave. Learned counsel for the appellant in an attempt to dislodge the findings arrived at by the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room in which he was interned. He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before. During his confinement there, he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query. He had also given in detail the landmarks he gathered in the course of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chand's house. This evidence of Suraj Bhan was corroborated by the evidence of Devisingh, the Magistrate, Randhawa and Ratan Singh. The Magistrate took Suraj Bhan along with him to the house of Deep Chand. He inspected the house and got the plan, Ex. P-28, prepared under his supervision by P.W. 25, the Reserve Inspector, Churu. He also recorded the memorandum, Ex. P-27, in which his observations and the statements made by Suraj Bhan were noted down.' The Magistrate gave evidence as P.W. 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him. His evidence is further corroborated by the evidence of two witnesses, P.W. 25, Randhawa, and P.W. 39. The memorandum prepared by the Magistrate, his evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at by the courts below and there are no exceptional circumstances in this case to depart from the usual practice. We shall now proceed to consider the arguments of learned counsel for the appellant seriatim. His first criticism is directed against the verification proceedings conducted by the Magistrate at the house of Deep Chand. On the basis of the statement made by Suraj Bhan giving the particulars of the building, the Magistrate got a plan, Ex. P-28, prepared and also a memorandum, Ex. P-27. He also gave evidence in the court. It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate. The relevant provisions are s. 164 of the Code of Criminal Procedure and s. 9 of the Evidence Act. The material part of s. 164 of the Code of Criminal Procedure reads: "(1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police-officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done in that way or not at all, and other methods of performance are necessarily forbidden. Adverting to s. 164 of the Code of Criminal Procedure, the Judicial Committee proceeded to state at p. 642 thus: "It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle." The Judicial Committee also stated the policy underlying the section thus at p. 643: "In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever." These are weighty observations and we respectfully adopt them. But this decision does not preclude, a Magistrate from deposing to relevant facts if no statute precludes him from doing so either expressly or impliedly. Neither the Evidence Act nor the Code of Criminal Procedure prohibits a, Magistrate from deposing to relevant facts within the meaning of s. 9 of the Evidence Act. In Legal Remembrancer v. Lalit Mohan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 164 of the Code of Criminal Procedure. The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath v. Emperor (A.I.R. 1937 Cal. 99). In that case, the learned Judges observed at p. 110 thus: "In one case there was a verification report so far as the confessional statement of an accused person was concerned, which it would appear was fairly supported by other evidence bearing on matters covered by the said report by the Magistrate by whom it was recorded, and which cannot be ruled out on the ground that it was inadmissible in evidence, seeing that the Magistrate himself was examined as a witness in the case, and spoke to the contents of the report made by him, which is placed on record as evidence, in support of the confessional statement of Sudhir Bbattacharjya." Then the learned Judges proceeded to state, "Statements made by the accused to the verifying Magistrates in the course of the proceedings, if they are not recorded in the manner provided in s. 164, Criminal Procedure Code, are however inadmissible." It is, therefore, clear that the memorandum prepared by the Magistrate describing the present condition of the house and the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said affidavit made and attested. On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime. Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact. The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated, the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan. At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh. On the other hand, both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident; for, at one stage, they were anxious to save the life of Suraj Bhan and at a later stage they were equally anxious to get back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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