TMI Blog1958 (9) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... eight months old. With them also lived Banwari Lal's sister Vina, a girl of about 16 to 17 years of age. Banwari Lal had employed Prem as a servant about four months before the murder of Nirmala Devi on February 12, 1957. This Prem was a youngster of about fourteen years of age at that time. According to the prosecution, lie was an associate of the appellant who was posted at Rupar in the capacity of a foot- constable in the police force. The appellant and Prem became friendly and it is said that the appellant had an eye on the ornaments of the deceased Nirmala Devi, which she was in the habit of wearing when she went out. The deceased was a young person in her twenties and of good character. She used to be left alone in the house with her child, when Banwari Lal went to court and Vina went to school. Prem, however, used to remain at the house. It is the case of the prosecution that the appellant in conspiracy with Prem took advantage of the deceased being alone in the house, when the appellant went upstairs and killed Nirmala Devi and stole her ornaments, while Prem remained down-stairs with her child. Vina had returned from school round about, 12-30 in the afternoon as it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure, clearly stated that the confession was a voluntary one. Indeed, his statement to the Committing Magistrate showed that the crime was committed by the appellant and that Prem had assisted him in the commission of that crime. Although in the Court of Session Prem had retracted his confession, his memorandum of appeal in the High Court would indirectly suggest that the con- fession made by him was voluntary and true. Before we consider whether the confession was a voluntary and a true one, it is necessary to deal with the submission on behalf of the appellant that the confession, having been retracted by Prem, is irrelevant so far as the appellant is concerned as the retracted confession of an accused cannot be used against his co-accused. Although on behalf of the appellant it had not been argued that the retracted confession of Prem was inadmissible, we regard the submission that it was irrelevant and cannot be used against the appellant as tantamount to saying the same thing. Section 30 of the Indian Evidence Act states: When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad adopted a device to get the accused Prem into their custody again on a charge of theft as lie had already been placed in the judicial lock-up after his arrest in connection with the murder of the deceased Nirmala Devi. He was arrested on June 25, 1957, in connection with a burglary which had taken place on December 5, 1956, and he had been since then in police custody in connection with the investigation of that case until July 10, 1957, the last day of remand to police custody. On July 10, 1957, Prem made a confession before a Magistrate concerning the murder of Nirmala Devi. Prem was discharged in the burglary case on July 20, 1957. Having adopted this device of getting Prem into police custody the police were in a position to exercise great influence upon Prem, a, young' lad of about 14 years of age. When lie made his confession on July 10, 1957, he must have been still labouring under the influence of the police and sufficient time was not given by the Magistrate to remove that influence. The Magistrate ought not to have recorded his confession on July 10, 1957. He ought to have remanded Prem to jail custody for a few days in order that the police influence may be remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course, the police had kept him awake. The Magistrate also enquired whether the police or any other person had made any promise or had given any undertaking to help Prem or had given all temptation to him or had influenced or frightened him. If so, he should state this fully from his heart, to which Prem replied that he had not been given any promise, temptation or inducement, nor was he subjected to fear or exhortation. He had been merely asked to make a true statement. Prem then said that he would make his statement of his own free will and the Magistrate could believe him or not. The Magistrate also asked Prem whether any one had beaten him or if there was any mark of injury on his body, to which, the answer was 'no'. The Magistrate then examined the body of Prem and found that there was no mark of injury on his person. The Magistrate then asked as to why he was making a confession, to which, Prem answered that he was doing so of his own free will and to lessen the burden of his heart. The nature of the questions put and the manner in which the Magistrate examined Prem clearly showed that the Magistrate took every precaution to be satisfied whether Prem was going to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement should be read as evidence. Although Prem retracted the confession in the Court of Session, his memorandum of appeal filed in the High Court showed that he had acted under the influence of the appellant and had been allured by him to achieve his object. He, however, pleaded that be should not have received such severe punishment. On the contrary, lie should have been acquitted. These circumstances clearly indicate that the confession recorded on July 10, 1957, was a voluntary confession. It remains now to be seen whether it was a truthful confession. Prem asserted in his confession that he had acquaintance with the appellant previous to the appellant's posting to Rupar and their association continued at Rupar. There is nothing inherently improbable in this story of Prem. It is true that there is not much evidence to corroborate Prem. that lie and the appellant were acquainted and used to associate. Banwari Lal had seen them talking to each other once or twice before the murder. The police station at which the appellant was posted was almost opposite to the house of Banwari Lal where Prem was employed as a servant and there was every probability of the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... child in a perambulator. The presence of the accused Prem at Banwari Lal's house near about the time of the murder appears to be clear. When Vina had left for her school at 9-45 a.m., Prem was in the house. Vina returned to the house from her school at about 12-30 noon. At that time Prem was present in the verandah in front of the office. When she finally returned from the school at about 3-45 p.m., apparently Prem was not in the house but arrived shortly thereafter. The murder was committed at any time between 12-30 p.m. and 2-15 p.m. if the appellant was the murderer, because Gurbachan Singh's evidence showed that the appellant was at the thana at 2-15 p.m. Apparently, the appellant went out with Gurbachan Singh and returned to the thana with him in time for Gurbachan Singh to be on duty from 3 p.m. If the appellant was the murderer he must have committed the murder before 2-15 p.m. Nirmala Devi was alive at 12-30 p.m. when Vina saw her feeding her child. Assuming that Vina did not stay long, as she had come to get some money to purchase a copy-book, it would not be unreasonable to assume that Nirmala Devi was alive up to 12-40 or 12-45 p.m. The interval of time betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... door adjoining the stair-case was looked while the other door was lying open. Banwari Lal's clerk, Naranjan Das, came to the house at 4-15 or 4-30 p.m. He went up to the verandah in front of the office and found both the doors of the office locked from outside. He asked Prem to open the office, but Prem told him that the key of one of the locks which was fixed on the door adjoining the stair-case, had been lost. He gave the key of the other lock and then Prem took out a key from his pocket and opened the lock fixed on the other door of the office. There is no reason to distrust all this evidence which would indicate that after Vina had left the house on her first visit at about 12-30 p.m. the two doors were locked from outside which was something unusual and that the keys of the looks of these doors were with Prem. He had given evasive answers about the keys to Vinia and Naranjan Das while the key was in his pocket. These circumstances also indicate the truthfulness of Prem's statement that he was present in the house during the period in which Nirmala Devi was murdered. His statement in the confession that the appellant had locked the door and had thrown the key in tile o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on the day of the murder when he left for court. On some statement made by the appellant his mistress Raj Rani was visited by the authorities and in the presence of respectable witnesses some ornaments were recovered and they were identified as the ornaments of the deceased. The evidence of Raj Rani also showed that these ornaments were given to her by the appellant. She apparently had no reason to depose against the appellant, because she had said in her evidence that she wished to meet the appellant before giving clue to the ornaments and that she wished to give the ornaments to the police in his presence. The defence case was not that these ornaments did not belong to the deceased but that, on the contrary, they were hers but had been produced by Banwari Lal during the police investigation and that it was falsely alleged that they had been recovered from Raj Rani. The evidence of Charan Dass, P. W. 24, President of the Municipal Committee of Rupar, however, clearly shows that in his presence the appellant made a statement to the police to the effect that one gold kara and seven gold bangles had been given by him to Raj Rani. This statement was made on August 3, 1957. His evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, however, had stated the reason for his visiting the police station. He went there to complain to the police that people parked their push-carts in the bazar and thus obstructed the passage. In our opinion, as the President of the Municipal Committee of Rupar, if a nuisance was being created by people parking their push-carts in the bazar, it was a natural thing for him to go to the police station in order to get such obstruction removed and for the police to see that the nuisance did not continue. We can find nothing strange in the conduct of Charan Dass or Gori Shanker in having gone to the police station in the circumstances deposed to by them. We have no hesitation in believing the evidence of Charan Dass and Gori Shanker that the appellant made a statement to the effect that he had given one gold kara and seven gold bangles to Raj Rani and that the same were recovered from Raj Rani in their presence. It would appear, therefore, on the evidence of Raj Rani and these witnesses, that not long after the murder of Nirmala Devi the appellant was in possession of her ornaments and that he had given them to Raj Rani. The ornaments being in possession of the appellant soon after the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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