# DEEP CHAND v. THE STATE OF RAJASTHAN

- **Citation:** [1962] 1 S.C.R. 662
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** c rim in a I A ppcal No. 156 of 1960
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deep-chand-v-the-state-of-rajasthan-2158
- **Pages:** 14

## Headnote

Criminal Trial -
Memorandum prepared by Magistrate in
verification proceeding-Statements made to such Magistrate not
recorded in prescribed manner-Deposition of Magistrate-Admissibility-Code of Criminal Procedure, r898 (V of r898), s. r64--
lndian Evidence Act, r872 (r of r872), s. 9.
·
In a verification proceeding held by him the Magistrate
prepared a memorandum recording his own observations as also
the statements made to him by a prosecution witness but not in
the manner prescribed by s. 164 of the Code of Criminal Procedure. He proved the memorandum in court and gave his evidence. It was contended that the High Court was wrong in
acting upon the said memorandum.
Held, that although s. 164 of the Code of Criminal Procedure and s. 9 of the Indian Evidence Act deal with two different matters, they must be read together and harmoniously construed so as to give full effect to both of them.
So construed, there could be no doubt that the evidence of
the Magistrate himself on the basis of the memorandum would
be relevant under s. 9 of the Evidence Act and as such admissible in evidence but the statements made to h.im by the prosecution witness, having been recorded in contravention of the
mandatory provisions of s. 164 of the Code, must be excluded as
inadmissible on evidence.
Nazir Ahmad v. The King-Emperor, (1936) I.L.R. 17 Lah.
629, Legal Remembrancer v. Lalit Mohan Singh Roy, (J92r)
I.L.R. 49 Cal. 167 considered.
Amiruddin Ahmed v. Emperor, (1917) I.L.R. 45 Cal. 557, and
Jitendra Nath v. Emperor, A.I.R. 1937 Cal. 99, referred to.

## Text

March 30.
662
SUPREME COURT REPORTS
[1962)
DEEP CHAND
v.
THE STATE OF RAJASTHAN
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Criminal Trial -
Memorandum prepared by Magistrate in
verification proceeding-Statements made to such Magistrate not
recorded in prescribed manner-Deposition of Magistrate-Admissibility-Code of Criminal Procedure, r898 (V of r898), s. r64--
lndian Evidence Act, r872 (r of r872), s. 9.
·
In a verification proceeding held by him the Magistrate
prepared a memorandum recording his own observations as also
the statements made to him by a prosecution witness but not in
the manner prescribed by s. 164 of the Code of Criminal Procedure. He proved the memorandum in court and gave his evidence. It was contended that the High Court was wrong in
acting upon the said memorandum.
Held, that although s. 164 of the Code of Criminal Procedure and s. 9 of the Indian Evidence Act deal with two different matters, they must be read together and harmoniously construed so as to give full effect to both of them.
So construed, there could be no doubt that the evidence of
the Magistrate himself on the basis of the memorandum would
be relevant under s. 9 of the Evidence Act and as such admissible in evidence but the statements made to h.im by the prosecution witness, having been recorded in contravention of the
mandatory provisions of s. 164 of the Code, must be excluded as
inadmissible on evidence.
Nazir Ahmad v. The King-Emperor, (1936) I.L.R. 17 Lah.
629, Legal Remembrancer v. Lalit Mohan Singh Roy, (J92r)
I.L.R. 49 Cal. 167 considered.
Amiruddin Ahmed v. Emperor, (1917) I.L.R. 45 Cal. 557, and
Jitendra Nath v. Emperor, A.I.R. 1937 Cal. 99, referred to.
CRIMINAL APPELLATE JURISDICTION: c rim in a I
A ppcal No. 156 of 1960.
Appeal by special leave from the judgment and
order dated August 1, 1958, of the Rajasthan High
Court at Jodhpur in Criminal Appeal Nos. 98 and 155
of 1957 and Criminal Revision No. 116 of 1957.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for
the appellant.
H.J. Umrigar, H. R. Khanna, Bipin Behari Lal,
•
R. H. Dhebar and D. Gupta, for the respondent.
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1 S.C.R. SUPREME COURT REPORTS
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1961.
March 30. The Judgment of the Court was
delivered by
SunBA 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, Churn,
dated May 3, 1957, in so far as he convicted the
appellant under ss. 347, 365 and 386, Indian Penal
Code, and setting aside his order acquitting the appellant under s. 458, Indian Penal Code, and convicting
the appellant under s. 452, Indian Penal Code.
The
learned Additional Sessions Judge sentenced the appellant for the offences under ss. 34 7, 365 and 386, Indian
Penal Code, to undergo rigorous imprisonment for 1
year, 2 years and 3i years respectively. The High
Court enhanced the sentences in respect of the
offences under ss. 347 and 386, Indian Penal Code, to
3 years and 8 years respectively, and also imposed a
fine of Rs. 20,000 on the appellant; the sentence in
regard to the offence under s. 365, Indian Penal Code,
was confirmed. The High Court further found that
the appellant was guilty under s. 352, Indian Penal
Code, also and for that offence it sentenced him to
undergo rigorous imprisonment for 7 years.
At the outset it would be convenient to state briefly
the case of the prosecution. One Kashiram, a prosperous businessman, was residing at Sidhmugh. His
only son Suraj Bhan was living at Rajgarh where he
was carrying on an independent business of his own.
On November 12, 1954, when Suraj Bhan was at his
desk m his house, somebody made an enquiry
whether one Rameshwar was -there, to which Suraj
Bhan replied
in the negative. A few minutes
thereafter, two men with masks entered the room and
one of them was armed with a revolver. The said
two persons threatened to shoot Suraj Bhan if he
made any noise and then took him outside the house
where two camels were kept waiting attended by two
other persons similarly masked. After covering the
face of Suraj Bhan by tying a cloth round his neck, he
was made to mount one of the camels. The two persons who pulled Suraj Bhan out of his house also
Deep Chand
v.
The State of
Rajasthan
Subba Rao ].
I96I
Deep Chand
v.
The State of
Rajas than
Subba Rao }.
664
SUPREME COURT REPORTS
[1962]
mounted the same camel, one in front of Suraj Bhan
and the other behind him. After firing some shots in
the air, presumably to prevent pursuit, the said persons, along with Suraj Bhan, left the place. After
riding for 3 or 4 hours, the camels were made to stop
on a railway line, the said persons got down from the
camel, Suraj Bhan was also made to get down, and
all of them went along the rail way line for 3 or 4 furlongs.
Thereafter, Suraj Bhan was taken to the
house of Deep Chand, the appellant, in village Kalari
and was kept there in confinement in a small room for
17 days. During the entire period he was kept blindfolded.
Two or three days 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 knew each other. Dhannaram offered to help Kashi Ram to get the release of
his son.
Dhannaram gave a letter addressed to Deep
Chand to Durga Parshad wherein Deep Chand was
requested to render his help in the matter of the
release of Suraj Bhan. On the basis of the letter,
Durga Parshad contacted Deep Chand, who promised
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1 S.c.R. SUPREME COURT REPORTS
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to do his best in the matter. After further talks,
Dhannaram met Shiv Bhagwan and told him that
Suraj Bhan was alive but a large sum would be
required as ransom to get his release. He also warned him not to divulge the secret, for, if he did so, not
only the life of Suraj Bhan but also of other .relations
would be in danger. He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000.
The third letter written by Suraj Bhan at the instance
of Deep Chand was shown to Shiv Bhagwan and to
his father Durga Parshad to assure them that Suraj
Bhan was alive.
After satisfying themselves of the
bona fides of the negotiations conducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the
house of Dhannaram where they found Deep Chand.
The sum of Rs. 50,000 was paid to Dhannaram and
Deep Chand; and both of them counted the money.
The money was paid on December 17, 1954, and Su raj
Bhan was released on December 20, 1954.
Five persons, namely, Deep Chand, Sisram, Jiwan
Ram, Dhannaram and Ramji Lal, were prosecuted in
the Sessions Court for the aforesaid offences. The
learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under
ss. 347 and 365, Indian Penal Code, and Deep Chand
as aforesaid. Nothing more need be said about the
conviction of Sisram, as on appeal he was acquitted
by the High Court and no appeal was preferred by
the State against his acquittal. The learned Sessions
Judge, on a consideration of the entire evidence
placed before him, held that there was overwhelming
evidence to show that Deep Chand detained Suraj
Bhan in his house for sometime and thereafter in
Lachhman's house and released him on payment of
a ransom. But he held that there was not sufficient
evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12,
-1954, from the latter's house. On these findings, he
convicted Deep Chand under ss. 347, 365 and 386,
Indian Penal Code. Deep Chand preferred an appeal
against his conviction, and the State filed an appeal
84
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Deep Chand
v.
The State of
Rajasthan
Subba Rao ].
z96I
Deep Chand
v.
The State of
Rajasthan
Subba Rao ].
666
StJPR~M~ COURT R~PORTS
[1962]
against the judgment 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 Su raj 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 High Court
raised the following points before us: (1) The High
Court erred in relying upon the statement made by
Suraj Bhan before the Magistrate at the time of verification proceedings, though it was not recorded in
compliance with the provisions of s. 164 of the Code
of Criminal Procedure, and if the said statement and
the verification proceedings based on that statement
were excluded, it is not possible to predicate that the
High Court would have accepted the evidence of Suraj
Bhan in respect of his version that he was confined in
the house of Deep Chand. (2) The High Court also
went wrong in upholding the privilege claimed by
Shri S. Gajender Singh, the District Magistrate, in respect of important questions put to him in the crossexamination; and if the claim of privilege had not
been upheld, answers would have been elicited from
him which might have established that Suraj Bhan
was lying in the witness-stand and that his previous
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I S.C.R. SUPREME COURT REPORTS
667
statements represented the truth. (3) The High Court
erred also in setting aside the order acquitting the
appellant under s. 458, Indian Penal Code, without
sufficient and compelling reasons and in convicting
him under s. 452, Indian Penal Code.
To appreciate the said questions, it is necessary to
notice briefly the facts found by the courts below. On
the first part of the episode, that is, the abduction of
Suraj Bhan, the High Court accepted the evidence of
Suraj Bhan. Suraj Bhan stated in his evidence that
when he was writing his accounts at about 7-15 p.m.
in his house on November 12, 1954, two persons with
their faces covered with masks entered his house and
by threatening to shoot him, forcibly took him away
on one of the two camels brought by them. He further
alleged that he recognized one of the abductors who
threatened him with a revolver as Deep Chand, as he
was a local Congressman known to Suraj Bhan from
before. This identification of Deep Chand as one of
the accused was not accepted by the Sessions Judge,
but the High Court accepted it for the reason given
in its judgment. As regards the second stage, namely,
the confinement of Suraj Bhan in Deep Chand's house,
the High Court accepted the evidence of Suraj Bhan
identifying the said house by giving particulars thereof.
Suraj Bhan's version was as follows: During his confinement in the house, he used to loosen the bandage
and see through the chinks in the wall of the 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
•
z96I
Deep Chand
v.
The State of
Rajasthan
Subba Rao ].
I96r
Deep Chand
v.
The State of
Rajasthan
Subba Rao ].
668
SUPREME COURT REPORTS
[1962]
supervision by P.W. 25, the Reserve Inspector, Churn.
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 and the evidence
of P. W s. 25 and 39 establish that there used to be
chinks in the wall through which Suraj Bhan used to
see a tree and that these chinks had been recently
closed "by pointing the room from inside" and that
two new rooms were constructed towards the north of
the house. P.W. 27 deposed that these two new constructions were made about the beginning of the year
1955. This evidence, which was accepted by the
courts below, supported the evidence of Suraj Bhan
in regard to the condition of the building at the time
he was interned therein. On the basis of the said
•
evidence, both the courts concurrently held that the
house in which Suraj Bhan was interned for 17 days
was the house of Deep Chand.
Now coming to the third stage of the journey, that
is, the confinement of Suraj Bhan in Lachhman's
house, Lachhman, as P.W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand
he agreed to keep a lady whom Jiwan Ram and Deep
Chand would bring to his house for a few days and on
the next day, Deep Chand and Sisram brought in the
midnight Suraj Bhan instead of a lady. He also described in detail the instructions given to him by Deep
Chand and the manner in which he attended on Suraj
Bhan, during his stay of 21 days in his house. This
house was also identified by Suraj Bhan. Suraj Bhan
further gave some details of the surroundings of the
house and also ·the name of the son of Lachhman.
This evidence proves that Suraj Bhan was shifted by
Deep Chand to the house of Lachhman on the eve of
the negotiations. The High Court held against the r
appellant, even without calling in aid the evidence of
Lachhman, on the basis ~f other facts.
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1 S.C.R. SUPREME COURT REPORTS
669
Then there is the evidence of Shiv Bhagwan and
Durga Parshad, who actually paid the ransom. These
witnesses spoke about the negotiations and also the
actual payment of Rs. 50,000 to Deep Chand. This
evidence was again accepted by both the courts. Then
there was the evidence of Lachi Ram and Amar Singh,
who carried on negotiations with Deep Chand for the
return of the ransom in the presence of Chowdhuri
Kumbharam, the then Home Minister of Rajasthan.
This evidence was also accepted by both the courts.
The aforesaid evidence, along with other circumstances, according to the High Court, brought home.the
guilt to the appellant on all charges.
It is the usual practice of this Court to accept the
concurrent findings of fact 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:
"(l) 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 before the commencement
of the inquiry or trial.
(2) Such .statements shall be recorded in such of
the manners hereinafter prescribed for recording
Deep Chand
v.
The Slate of
Rajasthan
Subba Rao J.
z96z
Deep Chand
v.
The State oj
Rajasthan
Subba Rao ].
670
SUPREME COURT REPORTS
[1962]
evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be
recorded and signed in the manner provided in section 364, and such statements or confessions shall
then be forwarded to the Magistrate by whom the
case is to be inquired into or tried."
Section 9 of the Evidence Act says that facts which
establish the identity of any thing or person whose
identity is relevant, are relevant in so far as they are
necessary for that purpose. These two sections deal
with different situations: s. 164 of the Code of Criminal
Procedure prescribes a procedure for the Magistrate
recording statements made by a person during investigation or before trial; s. 9 of the Evidence Act, on
the other hand, makes certain facts which establish
the identity of a thing as relevant evidence for the
purpose of identifying that thing. If a statement of
a witness recorded by a Magistrate in derogation of
the provisions of s. 164 will go in as evidence under
s. 9 of the Evidence Act, the object of s. 164 of tho
said Code will be defeated. It is, therefore, necessary
to resort to the rule of harmonious construction so as
to give full effect to both the provisions. If a Magistrate speaks to facts which establish the identity of
any thing, the said facts would be relevant within the
meaning of s. 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of s.
164 of the Code of Criminal Procedure, such part of
the evidence, though it may be relevant within the
meaning of s. 9 of the Evidence Act, will have to be
excluded.
By such a construction of the provisions a
satisfactory solution could be evolved. The decision
of the Judicial Committee in Nazir Ahmad v. The
King-Emperor(') is rather instructive. There, a
Magistrate gave evidence in court on the strength of
a confession made to him which was not recorded
under s. 164 of the Code of Criminal Procedure. The
question was whether the said evidence was admissible against the accused. The Judicial Committee
quoted and approved the well recognized rule that
(I) (1936) I.L.R. 17 Lahore 629.
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1 S.C.R. SOPREME COOR'l' R:ElPOR'l'S
671
where power is given to do a certain thing in a certain
way, the thing must 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 th us 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 Singh Roy (1), a Magistrate sought to give
evidence of an unrecorded statement made to him by
the accused. The court rightly held that it was not
permissible. The same remarks we made in regard to
the decision of the Privy Council would apply to this
case.
In this context a few relevant decisions bearing on
the admissibility in evidence of verification proceedings could conveniently be noticed. In Amiruddin
Ahmed v. Emperor ('), a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused. Tennon, J., made the
following observations at p. 564:
"They are undertaken, it would seem, with a view
(1) (1921) I.L.R. 49 Cal. 167.
(2) (1917) l.L.R. 45 Cal. 557.
I96I
Deep Chand
v.
The State of
Rajaslhan
Subba I?ao ].
Deep Chand
v.
The State of
Rajas than
Subba Rao .f.
672
SUPREME COURT REPORTS
(1962]
to testing the truth of a confession and to obtain
evidence either corroborating the confession or indicating its falsity. In so far at least as such evidence
may be obtained, for instance, in ascertaining that
the prisoner is familiar with, or wholly ignorant of,
the localities of which he has spoken, or in furnishing
clues to further enquiry, such proceedings may be
useful. In connection with such proceedings, the
main concern of the Court would seem to be to ensure
that evidence not strictly admissible is not admitted.
In the present case that precaution has not been
taken: for we find that the verifying Magistrate has
been permitted to speak to statements said to have
been made to him in the course of his proceedings.
Such additional statements being statements made
in the course of an investigation, when not recorded
in the manner provided in section 164 of the Code of
Criminal Procedure, are, in my opinion, inadmissible."
The other learned Judge, Shamsul Ruda, J., made the
following statement at p. 572:
"I think, 'verification' under conditions such as
these lends itself to very great abuses and should be
avoided. There is perhaps nothing objectionable in a
verification made independently of the confessing
accused and unaided by him".
We are not concerned in this case with the propriety
of verification proceedings in regard to a confession
made by an accused. This decision is an authority
for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence, though he could
not speak of statements made by the accused or a
witness recorded by him in contravention of s. 164 of
the Code of Criminal Procedure. The same distinction
was pointed out by the Special Bench of the Calcutta
High Court in J itendra Nath v. Emperor('). 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
(I) A.I.R. 1937 Cal. 99.
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I S.C.R. SUPREME COURT REPORTS
673
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 confes.
sional statement of Sudhir Bhattacharjya."
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 evidence given by him on the basis
of that memorandum would be relevant evidence
under s. 9 of tho Evidence Act; but tho statements made
by Suraj Bhan to the Magistrate said to be not recorded in the manner prescribed by s. 164 of the Code of
Criminal Procedure would be inadmissible.
We are
proceeding on the basis that the said statements were
not recorded in compliance with the provisions of s.
164 of the Code of Criminal Procedure and we should
not be understood to have expressed any opinion on
the question whether they have been so recorded or
not, or whether mere irregularities, if any, committed
in the manner of recording such statements by Magistrates under s. 164 of the Code of Criminal Procedure
would make such statements inadmissible. That
apart, Ex. P-27 and the evidence given by the Magistrate were only used by the court as corroborating the
evidence of Suraj Bhan in regard to his evidence
describing the house of Deep Chand.
Apart from the
Magistrate's evidence there is also other evidence in
the case in regard to the original condition of the
building and the subsequent additional structures put
up by Deep Chand. As the High Court accepted that
evidence, even if the evidence of the Magistrate was
excluded it would not have made any difference in the
result.
We, therefore, hold that the evidence of the
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Deep Chand
v.
The State of
Rajastlian
Subba Rao j.
r96r
Deep Chand
v.
The Stale of
Ra}asthan
Subha Rao ].
674
SUPREME COURT REPORTS
(1962)
Magistrate, excluding that part pertaining to the
statements made to him by Suraj Bhan, was relevant
evidence in the case.
The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed
by the learned Sessions Judge. Some of the relevant facts may now be stated. Suraj Bhan was released on December 20, 1954. On February 14, 1955, one
Shiv Dutt made a statement before the District Magistrate, S. Gajendar Singh, and the said Magistrate
recorded the same under s. 164 of the Code of Criminal Procedure. In that statement Shiv Dutt stated
that Suraj Bhan told him the present version of the
prosecution.
On March 12, 1955, Suraj Bhan was
examined by the police and he made a statement
(Ex. D-8).
Therein he gave an altogether different
version contradicting the statement of Shiv Dutt. On
April 29, 1955, Suraj Bhan filed an affidavit, Ex. P-5,
in the Court of the Additional District Magistrate,
Ganganagar, stating that Deep Chand had nothing to
do with the offence. On May 5, 1955, the prosecution
got five copies of the 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
]'ebruary 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 reasons
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
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I S.C.R. SUPREME COURT REPORTS
675
save the life of Suraj Bhan and at a later stage they
were equally anxious to get back the money paid as
ransom by Suraj Bhan's father. The courts have also
accepted the evidence of Shiv Dutt. That apart, the
question of privilege was not raised before the High
Court. In the circumstances, we would not be justified in allowing the appellant to raise before us the
question of privilege based upon the disallowance of
a few questions put to one of the witnesses. This
objection is, therefore, rejected.
The third argument has no merits either. The High
Court considered, and in our view rightly that there
was no reason to disbelieve the evidence of Suraj
Bhan when he identified Deep Chand at the time of
abduction.
Suraj Bhan knew the accused before and
he also knew his stature and voice.
Suraj Bhan was
in the company of Deep Chand from the time of his
abduction till he was finally released. "Vhen Suraj
Bhan, in the circumstances, stated that he identified
Deep Chand, there is no valid reason to reject his
evidence. In the circumstances, the High Court was
quite justified in setting aside the order of acquittal
under s. 458, Indian Penal Code, and convicting him
for the offence under s. 452 thereof .
Finally learned counsel for the appellant made an
impassioned appeal on the question of sentence. He
said that the learned Sessions Judge had awarded a
reasonable sentence to the accused and the High Court
was not justified in enhancing the said sentence. 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! 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.
In the result, the appeal fails and is dismissed.
Appeal dismissed.
Deep Chand
v.
The State of
Rajasthan
Subba Rao ] ,
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