TMI Blog1972 (4) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... house told her that the accused had not been treating her well. After Churi had stayed at her mother s house for about three or four years, the accused paid visits to her and wanted to take Churl to his house. The accused, however, declined to take Joginder with him. At the suggestion of Nagju, Churi, Joginder and Nagju came to the house of the accused in village Shilaroo which is at a distance of 1 1/2 mile from, Gani. At his house,, the accused gave beating to Churi deceased. Nagju consequently returned along with Churi and Jogindler to her village Gani. On the day of Shivratri before the present occurrence , the accused took Churi along with him to his house. Joginder was, however, left with Churi s mother Nagju., The accused and his wife lived alone, in their house in Shilaroo. No one else resided with them in that house. On the evening of September 16, 1969, the accused and his wife were seen together at the house. Kotkhai is at a distance of 2 1/2 furlongs from Shilaroo. At about 10.30 p.m. on September 16, 1969 the accused went to the residence of Shri Sudershan Kumar Mahajan (PW 15), Naib Tehsildar who exercised the powers of second class magistrate,, in Kotkhai. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light was thrown inside and the dead body (If Churi deceased was found lying in a pool of blood. There was a quilt up to the, chest of the body. A number of injuries were found on the body. A Khokhri, its scabbard, male shirt and a pair of tongs were lying near the body stained with blood. The Read Constable then took steps for keeping a watch over the house. Police station Theog is at a distance of 20 miles from Shriaroo. Sub Inspector Devi Singh of Theog police station was on the night of September 16, 1969 away to Gajairi at a distance of five. or six miles from Theog in connection with a fair there. At mid night the Sub Inspector received intimation that a murder had taken place at Kotkhai. The Sub Inspector accordingly went in a truck to Kotkhai and reached there at about 3 a.m The Sub Inspector took rest at the police post and after sunrise went Lo the place of occurrence,. The accused too was taken by the Sub Inspector to the spot. The party reached, the house of the accused at about 8 a.m. Inside the room the Sub Inspector found the dead body of Churi deceased lying on. the floor. Ile Sub Inspector prepared injury statement and. inquest report. The blood-stained clot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. I claim the son to be my own. He is not illegitimate. I left my house, at 6 P. m. on 1st of Asuj last year. It was Tuesday 2026 Bk. leaving, my wife at home, to see a documentary film being exhibited at Kotkhai. Gaddu Ram was with me in the show. The picture finished at about 9-30 p.m. I was taken by the police to the Police Post from the bazar. I was called through a police constable who was not produced as prosecution witness. I was given beating at the police post. A.S.I. was there besides other Foot Constable. My signatures were obtained on a paper. I do not know what had been written on that. It was disclosed to me by the S.H.O. next morning that my wife had been murdered, and I was taken to my village. From there I was brought to Theog. I am innocent and have no hand in the, crime. No evidence was produced in defence. Learned Sessions Judge accepted ,lie prosecution case that it was the accused who had caused injuries to Churi deceased, as a result of which she died. Reliance in this connection was placed upon the other evidence adduced by the prosecution in the case as well as upon the confession made to Shri Mahajan PW. On appeal the learned Judges of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnection it is pointed out that Shri Mahajan was a second class magistrate and there is nothing on the record to indicate that he was specially empowered by the State Government to record a confession. The confession, it is further stated, was recorded during, the investigation of the case and as it was not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure, the same is inadmissible in evidence. In this contexts we find that according to sub-section (1) of section 164 of the Code of Criminal Procedure, any Presidency Magistrate, and 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 (Chapter XIV of the Code) be under any other law for the time being in force or at any time afterwards before the commencement of the enquiry of trial. Mete is no material on the record to indicate that Shri Mahajan was a second class magistrate who had been specially empowered by the State Government to record a confession. Indeed, Mr. Khanna on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the a decision, a confession recorded by a second class magistrate not specially empowered during the investigation of a case is not admissible in evidence and no oral evidence in respect of that confession can also be led at the: trial. Mr. Khanna, however, contends that the restriction on the admissibility of the above evidence would operate only if the confession is recorded during the course of investigation. If, however. the confession is recorded at a stage prior to the commencement of investigation, there would be no bar to the admissibility of such a confession. Reference in this connection has been made to the case of In re Yondra Narasimha Murthy. (A.I.R. 1966 A.P. 131. ) In that case an accused after committing murder went to a second class magistrate and made a statement that he had killed the deceased. The statement was recorded by the magistrate and was signed by the accused. It was held that the aforesaid statement was admissible in evidence. Dealing with the contention that there had not been compliance with sect-ion 164 of the Code of Criminal Procedure, the court observed that the person making the confession was not an accused at the time he went to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, ts would be shown hereafter. were strained would, in the absence of any cogent explanation by him, point to his guilt. The evidence of Nagju (PW 2), mother of the deceased, shows that the accused had been illtreating Churi deceased. It is further in the testi mony of Girju (PW 1) that the accused had a Khokhri at his house similar to Khokliri P. 1 which was found near the dead body of the deceased and with which the injuries on the body of the deceased, according to Dr. Gupta, could have been caused. Besides that it is established by the evidence of Mangat Ram (PW 10) and Shri Mahajan (PW 15) that the accused on the night of occurrence at about 10.30 p.m. went to the house of Shri Mahajan and talked to him. Shri Mahajan thereafter sent for Head Constable Bhag Singh through Mangat Ram. Head Constable Bhag Singh lids deposed regarding his having arrested the accused at the house of Shri Mahajan. The dead body of Churi deceased was thereafter discovered lying in the house of the accused. The discovery of the dead body from the house of the accused can thus be t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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