TMI Blog1957 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased's uncle and his wife, who is the sister of the accused, On the day of the occurrence except Gunji Thirupathamma, P. W. 3 one of the daughters of P. W. 1, all had gone to attend the marriage in Seetharamareddi's house and when P. W. 1 who is the grand-mother of the deceased returned at 1 P. M. she saw her daughter at the gate of Ankamma's house shouting that the accused was killing Lakshamamma after bolting the door. P. W. 1 and others who had come there shouted that the accused should open the door whereupon the accused opened the door with the left hand and with the knife in his right hand had stabbed himself in the left abdomen and fell down. The knife also fell by his side. It is further stated that Lakshamamma was lying in a pool of blood struggling, and died a few minutes afterwards. P. W. 1 got a report written by Ramalingareddi whom she met on the way and gave the report Ex. P-1 to the Police. The Police came and sent the accused to the Government Hospital. The doctor found at least eleven injuries on the body of the deceased some of which were serious having pierced the diapharagm on the right side cutting several muscles as well as the right lung ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana in the house and he went and informed the brothers of the deceased and Gopalam, one of the brothers of the deceased came and stabbed the deceased and when the accused intervened he received injuries. The first information report given by P. W. 1 (Ex. P-1) is as follows: The marriage of my grand daughter Mannem Lakshamamma was performed about eight years ago with Mannem Ilamaswamy's son Edukondalu of Nandigama Gudipudi in Sattenpalli Taluk. About 15 days back, the couple came to our house for the marriage of my second granddaughter Channamma. Since about a week, the husband Edakondalu was asking my grand-daughter Lakshamamma to come to his village. My grand-daughter was saying that she has been ill and that they could go after taking medicine and getting cured here for the present. From then the husband and wife have been disputing. Even today they have been disputing from morning. By the time I returned home at 1 p. m. today after attending the marriage in Syamla Seetlmramareddy's house and saw the grand-daughter was groaning in the house producing kee'' sound. Edukondalu was lying down by the side of my grand-daughter, towards her west. There are knife stabs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused to stay saying that they would look after her character, that it is not they who kept the deceased and her husband in Ankamma's house and that they did not chastise the deceased and did not tell the accused to report to them if she misbehaved. In the Committal Court (Ex. D-1) she said that after coming for the marriage when the deceased said she would not come to the accused agreed to stay here as his father-in-law, mother-in-law and brother-in-law promised to keep her under control. They chastised the deceased and asked the accused to tell them if she committed any untoward thing. This evidence given in the committal Court is denied by her in the Sessions Court. She further states that opposite to her house Muslims and Telagas are living and all of them saw the accused stabbing himself and falling down and except for one daughter of hers, the rest of the people in her house went to the marriage feast. Later on she admits that she did not. say in Ex. P-1 or in statement under Section 164 or in the Committal Court that she heard the deceased crying oh, sister (elder) I am dying. With respect to her statement in Ex. P-1 she denies any knowledge of the contents and giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce cannot be believed for holding that the accused stabbed the deceased and then stabbed himself, ( 6. ) In so far as the other witnesses are concerned, the first point taken by the learned advocate for the accused is that P. Ws. 3, 4, 5 and 6 were all examined by the police at the time of the inquest and in spite of the fact that an application was made on behalf of the accused on 4-2-1956 for furnishing copies of the same, they were not furnished because the Circle Inspector denied that he took any such statements. It has already been seen that P. W. 1 admitted that she was examined by the Circle Inspector at the inquest and that she put her Nisani and that she and other panchayatdars attested. Similarly P. W. 3 states that the police examined her at the inquest. Her mother, Lakshmayya, P. W. 4, Appa Rao P. W. 5 and Thirupathi Reddy P. W. 6 and Seetharamayya were examined. They told the Circle Inspector what they had seen. She says that Ramakottayya wrote what they stated and their signatures or thumb impressions were taken. They were recorded in vernacular and they were read out in vernacular. Similarly, P. W. 4 says that the S. I. examined him at the inquest. He noted what h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gorically stated by the witnesses at the time of the inquest in vernacular. The non-supply of these statements leads to the irresistible inference that prejudice to the accused was likely to be caused inasmuch as the accused was deprived of his right to confront the prosecution witnesses with contradictions in their statements made then and those made at the Sessions under Section 145. Evidence Act. Their Lordships of the Privy Council in Pulguri Kotavya v. Emperor 1947 Mad WN 217 : AIR 1947 PC 67 (A), observed as follows: The right given to an accused person by Section 162, Criminal P. C. , is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross--examination may (sic) to be, it is difficult to guage its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence. Where the statements are never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. In the view taken by me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month and fifteen days back, as there was a marriage in my mother-in-law's house. My wife wag living in aduitery. I told my mother-in-law. I chastised my wife. There was no effect. . At about 3 p. m. yesterday, I saw while my wife was in the house with a dhobi called Narayana. I told my mother-in-law and my brother-in-law Gopayya. I told my another brother-in-law Mastan also. They came saying we shall see, come on . The person called Narayana jumped over the wall and escaped. Then, as there was a knife there, I stabbed with it in my stomach. Peeling that it is not proper to live, I did it. When I attempted to stab myself a second time, my brother-in-law spatched away the knife. I fell down on account of reeling. My brothers-in-law, Gopaiah and Mastan and my wife's paternal aunts, Kotamma and Thirnpathamma, thought this fellow is likely to die and if he dies, we will be accused' Kotamma said, stab both. I heard that. I do not know what happened later. I regained consciousness after the police brought so near me. If the whole of the statement is taken into consideration, as indeed it must be, this statement if it is to be taken as a confession is at the most a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or in English : and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. 2. When the whole is made conformable to What he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. Those provisions came in for consideration by their Lordships of the Privy Council in 63 Ind App 372 : AIR 1936 PC 253 (2) (B), where the question was whether oral evidence of a confession said to have been made by the accused to a Magistrate of the class entitled to proceed under the provisions of Section 164 of the Code of Criminal Procedure relating to the recording of confessions; it was held that the Magistrate's evidence of the alleged confession was inadmissible, as it did not conform to the above provisions. Lord Roche observed:. . . The rule which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to some extent distinguishable, at the same time it is very difficult to meet the argument that the reasons given by their Lordships of the Privy Council would apply to a case of this kind where a Magistrate knowing that a confession was bound to be recorded diliberately omitted to give any kind of warning to the person making the confession. In the above case it was said that the Privy Council in Nazim Ahmed's case (B), did not anywhere refer to the provisions of Section 29. In my view it was not necessary to refer to Section 29, because Sub-section (3) of Section 164, Cr. P. C. , having been added in 1923 and being a special provision for Magistrate's recording confessions would not apply to confessions elicited by persons in circumstances mentioned in Section 29 and which are otherwise relevant. The provisions of Section 164, Cr. P. C. , therefore would apply to the particular circumstances contemplated by it. For instance where a confession is made to a police officer under Section 25 or a confession made whilst in custody of a police officer under Section 25 cannot be proved against him, such confession being inadmissible, the provisions of Section 29 do not apply. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in similar circumstances as those in this case held that: Where a statement made by an accused is recorded by the Magistrate as a dying declaration wherein the accused incriminated himself by stating that he attacked his wife and then inflicted the wounds on himself, such a statement, if becomes admissible in evidence under 8, 32, Evidence Act, 1372 by reason of the accused surviving the wounds, cannot be admitted in evidence as a confession if it is found that the Magistrate failed to comply with the provisions of Section 164, Criminal P. C. , and that he was available for being examined as a witness under the provisions of Section 533. To such a statement the rule laid down in Nazir Ahmed v. King Emperor (B) applies. In the view I have taken there can be no question of the statement Ex. P. 2 being admissible in evidence as a, confession against the accused. If this is rejected, the evidence in this case is such as would without doubt point to the direction that none of the prosecution witnesses had witnessed the actual incident, In any view of the matter the conviction and sentence is liable to be set aside. ( 9. ) I allow the appeal end set aside the conviction and sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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