iminal Appeal No 11 of 1972
Appeal by special leave from the judgment and order dated September 16 1971 of the Himachal Pradesh High Court in Criminal Appeal No 37 of 1970 and Murder Reference No 3 of 1970
G Narayana Rao for the appellant
H R Khanna and R N Sachthey for the respondent
The Judgment of the Court was delivered by Khanna J
Nika Ram 34 was convicted by learned Sessions Judge Mahasu under section 302 Indian Penal Cods for committing the murder of his wife Churl 26 and was sentenced to death
On appeal and reference under section 374 of the Code of Criminal Procedure the High Court of Himachal Pradesh confirmed the conviction and death sentence
Nika Ram has now come up in appeal to this Court by Special leave
The prosecution case is that Nika Ram was married to Churi deceased near about 1958
In 1964 Churi gave birth to a son named Joginder
Nika Ram considered that Joginder was not his son and had been born as a result of adulterous conduct on the part of Churi
When Joginder was three months old Churi and Joginder were sent to the house of Churi s mother Smt
Nagju PW 2 in village Gani
Churi on arrival at her mother s 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 12 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
430 Kotkhai is at a distance of 2 12 furlongs from Shilaroo
At about 1030 pm 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
The accused appeared to be nervous and told Shri Mahajan that he had murdered his wife
Shri Mahajan told the accused to sit down and be composed
On enquiry of Shri Mahajan the accused stated that his wife was of loose character and had given birth to in illegitimate son
His relations with her were consequently strained
the accused who was wearing a Kachha and a coat added that he had tried to commit suicide by jumping into nulla but had somehow survived
Shri Mahajan thereafter recorded statement PH of the accused wherein the accused stated that he had murdered his wife by giving her three Khokhri blows
According to the accused hehad enquired from the wife regarding the father of the child whereupon she had abused him
He consequently killed her
There was no reference to the attempt at suicide in statement PH of the accused
At about 1045 pm Shri Mahajan called his peon Mangan Ram PW 10 and sent him to the police post at Kotkhai to call the officer incharge of the police post
Mangat Ram went to the police post and arrived there at 10 50 pm
At the police post he told Head Constable Bhag Singh PW 13 that an accused in a murder case had come at the residence of the Naib Tehsildar and the police was wanted there
Entry 26 copy of which is PV was made in the daily diary of the police post at 10 50 pm regarding the above intimation given by Mangat Ram
The entry was signed by Mangat Ram
Head Constable Bhag Singh then went to the residence of Shri Mahajan Naib Tehsildar
The accused who was present there was Put under arrest by the Head Constable
The Head Constable found that the coat and Kachha of the accused were wet
Writing PH was also handed over by the Naib Tehsildar to the Head Constable
The Head Constable returned with the accused to the police post and made entry in the daily diary
Intimation about the occurrence was also sent to Police station Theog as well as to the Superintendent of Police
At about 12 mid night Head Constable Bhag Singh went to the
village of the accused
He awakened Poshu Ram PW 7 Mani Ram PW 8 and Bhagat Ram PW 16 and went to the house of the accused with those witnesses The door of the verandah of the accused was found bolted from inside
Poshu Ram PW jumped into the verandah and unbolted the door
The door of the residential room of the accused was found closed and was opened
Torch light was thrown inside and the dead body If Churi deceased was found lying in a pool of blood
There was 431 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 am 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 am
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 clothes as well as Khokhri P 1 and its scabbard were taken into possession and were made into sealed
parcels
The dead body of Chun deceased was sent for post mortem examination to Civil Hospital Kotkhai
Post mortem examination was performed at the said hospital by Dr G C Gupta at 6 pm on September 17 1969
Parcels containing the bloodstained articles which had been taken into possession from the spot were sent to the Chemical Examiner and the Serologist whose report showed that human blood was found on the Khokhri scabbard and the male shirt
The accused was sent to judicial lock up on September 17 969
On September 29 1969 Sub Inspector Devi Singh made ail application to PW 6 Shri Raj Kumar Sharma magistrate first class Theog for recording the confessional statement of the accused
The accused was also produced before Shri Sharma
Shri Sharma then apprised the accused of the consequences of confession
The accused volunteered to make a confessional statement
Shri Sharma however considered it necessary to give him time to think over the matter
The accused was accordingly ordered to be produced on October 4 1969
Shri Shalma who also holds his court at Kasumpti could not visit Theog on October 4 1969
The accused was directed to be produced before Shri Sharma on October 18 1969
On that day the accused declined to make any confessional statement
At the trial the accused stated that he had been married to Churi deceased in 1957
It was admitted by the accused that Churi had given birth to Joginder about four years after the marriage but he denied having maltreated Churi
The accused admitted that Churi had come to his House on the Shivratri day 432 but according to him the child too had come along with her
As regards the date of occurrence the accused stated that he was with Churi in the house during the day but at 6 pm he left for Kotkhai leaving his wife alone at the house
The accused denied having gone to Shri Mahaian and having made any confessional statement on the night of occurrence
It was also denied by the accused that his Kachha and coat were in a wet condition at the time of his arrest As regards the blood stained Khokhri and shirt the accused stated that those articles did not belong to him The accused further made the following statement I had cordial relations with my wife for the fast 14 years
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 pm
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
ASI 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 SHO 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 Court in maintaining the conviction of the accused relied upon the confession made by the accused to Shri Mahajan PW as well as upon the other circumstances of the case
The confession was found to have been amply Corroborated by the other evidence on record
The present appeal was filed by the accused appellant through jail
Arguments have however been addressed on his behalf by Shri Narayana Rao who has contended that the material on record is not sufficient to justify the conviction of the accused appellant
Admissibility of the confessional statement of the accused recorded by Shri Mahajan PW has also been questioned
As against that Mr Khanna on behalf of the State has convassed for the correct ness of the view taken by the High Court
433 It cannot be disputed that Churi deceased died as a result of the injuries inflicted upon her
Dr G C Gupta who performed post mortem examination on the dead body of the deceased found ten injuries on the body of the deceased out of which the following three were individually sufficient to cause death in the ordinary course of nature 1 Punctured wound right side of the neck 2 inches diameter 1 12 inches deep
2 Punctured wound 2 diameter 1 12 deep 2 below injury No 1
3 Incised wound 6 X 1 x 1 on left side of the neck
 Besides the above three injuries there were one incised wound on the left eyebrow two incised wounds on the left forearm one incised wound on the fingers of the left hand one incised wound on the right hand and one incised wound in the right arm
A scratch was also found on the right hand
The punctured and incised wounds in the opinion of the doctor could be caused by Khokhri P 1 Larynx and trachea were found to be torn and punctured
Probable time between the receipt of injuries and death was five minutes while between I death and post mortem was 19 12 hours
According to the prosecution case the injuries found on the body of Churi deceased were caused by the accused
The accused as stated earlier has denied this allegation
In order to bring the charge home to the accused the prosecution has relied upon the confessional statement PH of the accused recorded by Shri Mahajan as well as the other circumstances of the case
It has been argued on behalf of lie accused appellant that confessional statement exhibit PH is not admissible in evidence
In this connection 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 434 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 respondent State has argued the care on the assumption that Shri Mahajan was not specially empowered in this behalf
question as to whether a confession recorded during the investigation of a case by a second class magistrate not specially empowered was admissible in evidence was considered by this Court in the case of State of Uttar Pradesh vs Singhara Singh and Others1 It was held that the record of such a confession could not be put in evidence under sections 74 and 80 of the Indian Evidence Act
Reliance in this connection was placed upon the decision of the Judicial Committee in the case of Nazir Ahmed vs King Emperor
 2  Argument was further advanced in Singhara Singh s case that oral evidence of the magistrate to prove the confession was admissible
This contention was rejected by this Court in the following words  When a statute confers a power on certain judicial officers that power can obviously be exercised only by those officers
No other officer can exercise that power for it has not been even to him
Now the power has been conferred by section 164 on certain magistrates of higher classes
Obviously it was not intended to confer the power on magistrates of lower classes
If therefore a proper construction of section 164 as we have held is that a magistrate of a higher class is prevented from giving oral evidence of a confession made to him because thereby the safeguards created for the benefit of an accused person by section 164 would be rendered nugatory it would be an unnatural construction of the section to hold that these safeguards were not thought necessary and  could be ignored where the confession bad been made to a magistrate of a lower class and that such a magistrate was therefore free to give oral evidence of the confession made to him
We cannot put an interpretation on section 164 which produces the abnormaly that while it is not possible for higher class magistrates to practically abrogate the safeguards created in section 164 for the benefit of an accused person it is open to a lower class magistrate to do so
We therefore think that the decision in Nazir Ahmed s case supra also covers the case in hand and that on the principles there applied here to oral evidence given by Mr Dixit of the confession made to him must be held inadmissible Mr Khanna on behalf of the State concedes that in view of the a decision a confession recorded by a second class magistrate 1 1964 4 SCR 485
2 LR63 IA 372
435 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
1 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 the magistrate and no investigation of a crime registered against him was in progress at that time
Question consequently arises whether statement exhibit PH was recorded by Shri Mahajan during the investigation of the case or whether it was recorded before the commencement of the investigation
In this connection we find that the time mentioned by Shri Mahajan of the recording of confessional statement was 11 pm while the intimation which was given by Mangat Ram PW 10 to the police regarding a murderer having come to the residence of Shri Mahajan was entered in the daily diary at 1050 pm
Head Constable Bhag Singh PW 13 after having made that entry proceeded to the residence of Shri Mahajan and on arrival there put the accused under arrest
It is well established that the discovery and arrest of the suspected offender is one of the essential steps in the course of an investigation see in this connection H N Rishbud and Inder Singh vs The State of Delhi2 and The State of Madhya Pradesh vs Mubarak Ali2 We are therefore of the view that the contention advanced on behalf of the appellant that the confessional statement exhibit PH was recorded during the investigation of the case cannot be deemed to be devoid of force
It is not however necessary to dilate upon this aspect of the matter because we are of the opinion that even after excluding the con fessional statement PH from consideration the other material on record proves the guilt of the accused
It is in the evidence of Girju PW that only the accused in Churi deceased resided in the house of the accused
To similar effect are the statements of Mani Rm PW 8 who is the uncle 1 AIR 1966 AP 131
2  3 1959 supp
2 SCR 201
436 of the accused and Bhagat Ram school teacher PW 16
Ac cording to Bhagat Ram he saw the accused and the deceased together at their house on the day of occurrence
Mani Ram PW 8 saw the accused at his house at 3 p in while Poshu Ram PW 7 saw the accused and the deceased at their house or the evening of the day of occurrance
The accused also does not deny that he was with the deceased at his house on the day of occurrence
The house of the accused according to plan PM consists of one residential room one other small room and a varandah
The correctness of that plan is proved by A R Verma overseer PW 5
The fact that the accused alone was with Churi deceased in 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 1030 pm 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 traced to the visit of the accused to the residence of Shri Mahajan
The various circumstances referred to above in our opinion
clearly point to the conclusion that it was tile accused and none else who was responsible for the murder of Churi deceased
The plea of the accused that he had gone to see film show at Kotkbai on that evening and that the murder of the deceased was committed during his absence cannot be accepted
I lad the accused gone to the film show the persons with whom he sat at the film show must have noticed his presence there but no evidence has been adduced to show that anyone noticed the accused at the film show
According to the accused Gaddu Ram was with him at the film show
Gaddu Ram has however not been examined as a witness
The film show at Kotkhai which had been arranged by the Publicity Department according to Head Constable Bhag Singh PW lasted from 7 to 8 30 pm
Assuming that the accused went to the film show it would not have taken more than 10 or 437 15 minutes for the accused to return  to his house after the film show
The accused would thus be present at his house at about 9 30 pm when the present occurrence took place
Had someone other than the accused murdered his wife Churi the accused would have raised hue and cry and this fact must
have attracted to the spot his neighbours like Poshu Ram PW
The accused would have also in that event gone and made a report to the police
The conduct of the accused in neither raising hue and cry nor going to the police even though his wife was murdered in his house is hardly consistent with his innocence
The version of the accused that he was taken by the rolice to the police post from the bazar cannot be accepted because there is nothing to show that the police was aware of the murder of Churi deceased before the visit of the accused to the house of Shri Mahajan
On the contrary the evidence on record establishes beyond any manner of doubt that the dead body of the deceased was recovered after the accused had visited the house of Shri Mahajan
We are therefore of the view that it was the accused and none else who caused injuries to Churi deceased as a result of which she died
We therefore maintain his conviction
So far as the sentence is concerned we are of the view that it is not a fit case in which the extreme penalty need be exacted from the accused
It is the case of the prosecution itself that the accused suspected the fidelity of Churi deceased and believed that Joginder had been born to her as a result of her adulterous conduct
Had Joginder been the son of the accused the accused would have had a natural affection for the child and it is difficult to believe that he would have insisted upon Churi staying with him without the child
It is also the case of the prosecution that shortly before the occurrence the accused enquired from the deceased regarding the father of the boy and the deceased thereupon abused him
The act of the deceased in abusing the accused must have been taken by the accused to be adding insult to the injury by an unchaste wife
In view of the above it would in our opinion meet the ends of justice if the accused is awarded tile lesser penalty
We therefore alter his sentence into that of imprisonment for life


Summary:
The appellant was tried by the Sessions Judge for an offence under section 30 of the Indian Penal Code for the murder of his wife
According to the prosecution the appellant had suspected the fidelity of his wife because he believed that a son born to her was not his
The wife was last scen in the company of the appellant on the evening of the murder
It was alleged that the appellant went to the Tahsildar and made a confession
The Tahsildar thereafter called the police
At the instance of the appellant the body of his wife was recovered from his house
When produced before a first class Magistrate for having his confessional statement recorded the appellant declined to make any confessional statement
Relying upon the confession made to the Tahsildar and the other evidence the Sessions Judge convicted the appellant
The High Court upheld the conviction
In appeal before this Court it was inter alia contended on behalf of the appellant that the confession recorded by the Tahsildar was inadmissible in evidence since he was a second class Magistrate not specially empowered by the State Government in terms of section 164 of the Code of Criminal Procedure to record a confession HELD  In Singhara Singh s case this Court relying on Nazir Ahmed s case laid down that a confession recorded during the investigation of a case by a second class Magistrate not specially empowered could not be put in evidence under sections 74 and 80 of the Indian Evidence Act
It was also held that the oral evidence of the Magistrate to prove the confession was inadmissible
In the present case therefore the confession recorded by the Tahsildar was inadmissible and so was his oral testimony to prove It
434 B C State of Uttar Pradesh vs Singhara Singh and Others 1964 4 SCR 485 and Nazir Ahmed v King Emperor LR 63 IA 372 applied It could not be said that the Tahsildar recorded the statement before the commencement of investigation The confession was recorded at It pm while the intimation to the police regarding a murderer having come to the residence of the Tahsildar was entered in the daily diary at 1050 pm
The Head Constable after having made that entry proceeded to the residence of the Tahsildar and on arrival there put the accused under arrest
It is well established that the discovery and arrest of the suspected offender is one of the essential steps in the course of an investi gation
435 E G H R Rishbud and Inder Singh vs The State of Delhi  and The State of Madhya Pradesh vs Mubarak Ali 1959 Supp 2 SCR 201 followed
In re Yendra Narasimha Murthy AIR 1966 AP 131 referred to 429 However in the present case even if the confession was excluded the rest of the material on record proved the guilt of the accused
435 E Conviction maintained but in view of the special facts of the case sentence reduced from death to imprisonment for life