# NIKA RAM v. THE STATE OF IDMACHAL PRADESH

- **Citation:** [1973] 1 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 1972-04-28
- **Case number:** Criminal Appeal No. B U of 1972
- **Bench:** J.M. ~Helat, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nika-ram-v-the-state-of-idmachal-pradesh-5807
- **Pages:** 10

## Headnote

Code of Crinzinal Procedure s. 164--Confe.rsion recorded by Magistrate
not empowered to record it is inadtnissible-So ir oral evidence of such
n1aglstrate in support of the confession-Reduction of sentence, consideraJionf fnr,
The appellant was tried by the Sessions Judge for an
offence
under
•. 30 of the Indian Penal Code for the 'murder of his wife.. According t~
the prosecution the appellant had suspected the fide:ity of his wife because
he believed that a son born tc: her was not his.
The wife was last seen
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. Rel)'-
ing upon the confession .made to the Tahsildar and the other evidence
the Sessions Judge convicted the appellant.
The High Court upheld the
conviction,
Jn appeal before this C.Onrt it was inter alia contended on
behalf -0f 1he 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 s. 164 of 1he Code
of Criminal Procedure to record a confession.
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ll:ELD : In Sin11hara Sin11h·s case this Court _relying '?n N~zir .Ahmed'.•
\lase laid down that a confession recorded during the mveshgat1on of a
case by a second class Magistrate not specially ~mpow~red could not be
put in evidence under ss. 74 and 80 of the .Indian Evidence Act. It 'Y"s
also held that the oral evidence of the Mag•s'rate to prove the confes51on
was inadmissible.
Jn. the present case therefore the confesston recorded
by the Tahsildar was inadmissible and so was his oral testimony to prove
F
it. [434 B-Cl
S:ate of Uttar Pradesh v. Singhara Singh and Others, [1964] 4. S:C.R.
485 and Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372, apphed
It could not be said that the Tahsildar recorded the staten1~nt before
the commencement of investigation. !he confessic;>n
was
recorded . at
11 p.m. while the intimation to the police regarchn~ a murd~rer p.avn1g
G
come to the residence of the Tahsildar was entered in the daily diary at
10.50 p.m. The Head Constable after having. made that entry proceeded
to the residence of the TahS1ldar and on arrival there put the accused
1inder arrest.
lt is well established that the discovery and arrest . of t-h_e
suspected offender is one of the essential steps in 1he course of an 1nvest1gation. [415 E-G]
H. R. Rishbud and Inder Singh v. The State of Delhi, [19551 l S.C.R
II
\ 150 and The State of Madhya Pradesh v. Mubarak Ali. [1959]
Supp.
l S.C.R. 201, followed.
In re Yendra Narasimha Murthy, A.l.R. 1966 A.P. 131. referred to
-
...
NIKA P.AM v. STATE (Khanna, J.)
429
A
However in the present case ~ven if the confession was excluded the
rest of .the .material on record proved the gliilt of the accused. [435 EJ
[Conviction maintained but in view of the special facts of the ca~e
·sentence i:educed from death to imprisonment for li'fe.l

## Text

428
NIKA RAM
v.
THE STATE OF IDMACHAL PRADESH
April 28, 1972
[J.M. ~HELAT AND H. R. KHANNA, JJ.]
Code of Crinzinal Procedure s. 164--Confe.rsion recorded by Magistrate
not empowered to record it is inadtnissible-So ir oral evidence of such
n1aglstrate in support of the confession-Reduction of sentence, consideraJionf fnr,
The appellant was tried by the Sessions Judge for an
offence
under
•. 30 of the Indian Penal Code for the 'murder of his wife.. According t~
the prosecution the appellant had suspected the fide:ity of his wife because
he believed that a son born tc: her was not his.
The wife was last seen
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. Rel)'-
ing upon the confession .made to the Tahsildar and the other evidence
the Sessions Judge convicted the appellant.
The High Court upheld the
conviction,
Jn appeal before this C.Onrt it was inter alia contended on
behalf -0f 1he 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 s. 164 of 1he Code
of Criminal Procedure to record a confession.
B
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ll:ELD : In Sin11hara Sin11h·s case this Court _relying '?n N~zir .Ahmed'.•
\lase laid down that a confession recorded during the mveshgat1on of a
case by a second class Magistrate not specially ~mpow~red could not be
put in evidence under ss. 74 and 80 of the .Indian Evidence Act. It 'Y"s
also held that the oral evidence of the Mag•s'rate to prove the confes51on
was inadmissible.
Jn. the present case therefore the confesston recorded
by the Tahsildar was inadmissible and so was his oral testimony to prove
F
it. [434 B-Cl
S:ate of Uttar Pradesh v. Singhara Singh and Others, [1964] 4. S:C.R.
485 and Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372, apphed
It could not be said that the Tahsildar recorded the staten1~nt before
the commencement of investigation. !he confessic;>n
was
recorded . at
11 p.m. while the intimation to the police regarchn~ a murd~rer p.avn1g
G
come to the residence of the Tahsildar was entered in the daily diary at
10.50 p.m. The Head Constable after having. made that entry proceeded
to the residence of the TahS1ldar and on arrival there put the accused
1inder arrest.
lt is well established that the discovery and arrest . of t-h_e
suspected offender is one of the essential steps in 1he course of an 1nvest1gation. [415 E-G]
H. R. Rishbud and Inder Singh v. The State of Delhi, [19551 l S.C.R
II
\ 150 and The State of Madhya Pradesh v. Mubarak Ali. [1959]
Supp.
l S.C.R. 201, followed.
In re Yendra Narasimha Murthy, A.l.R. 1966 A.P. 131. referred to
-
...
NIKA P.AM v. STATE (Khanna, J.)
429
A
However in the present case ~ven if the confession was excluded the
rest of .the .material on record proved the gliilt of the accused. [435 EJ
[Conviction maintained but in view of the special facts of the ca~e
·sentence i:educed from death to imprisonment for li'fe.l
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
B
U of 1972.
Appeal by special leave fro)ll the judgment. and .order. dat~
September 16, 1971 of the Himachal Pradesh High Court m Cnminal Appeal No .. 37 oi 1970 and Murder Reference No. 3 of
1970.
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G. Narayana Rao, for the appellant.
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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 J udg~ Mahasu under section 302 Indian Penal Code for
committing the murder of his wife Churi (26) and was sentenced
to death. On appeal and refernce 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 :Kam was married to Churi
deceased near about 1958. In 1964 Chmi gave birth to a soil
named Joginder.
Nika Ram considered that Joginder was not
his son and had been born as a result oi 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
Afte:
Churi had stayed at her mother's house for about three or four
years, the accused paid visits to her and wanted to t~ke Churi to
his house.· The accused, however, declined to take Joginder wit.'t
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 ! mile from_ Gani.
At his house, the accused. gave
beating to Churi deceased.
Nagju consequently returnd
alon"
with Churl and Joginder to her village Gani.
On the d<jy of
.Shivratri b.>fore 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, 19.69, the accused an<!
his wife were seen together at the house.
430
SUPREMF. COURT REPORTS
[1973] l S.C.R.
KQtkhai is at a distance 0£ 2! furlongs from Shilaroo. At about
10.30 p.m. on September 16, 1969 the ac~used went t~ the re~i
de11ce of Shri Sudershan Kumar Mahaian (PW 15), Na1b Tehs1l·
dar who exercised the powers of second class
magistrate, ":t
Kotkhlli.
The accused appeared to be nervous and told Shn
Mahajan that he had murdered his wife.
Shri Mahajan told the
accused to sit down and be composed. On enquiry of Shri M.ahajan, the accused stated that his wife was of loose character and
had given birth to an illegitimate son. His relations with her were
comrquently 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, he had enquired from the wife regarding
the father of the child, whereupon she had abused him. He conse,quently killed her,
There was no reference to the attempt at
suicide in statement PH of the accused.
At about 10:45 p.m. Shri Mahajan called his peon Manga~
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 p.m. 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 PY.
was made in the daily diary of the police post at 10-50 p.m.
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.
TI1e accused, who was present there,
was put under arrest by t,he 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 a>
well as to the Superintendent of Police.
At about 12 mid night, Head Constable Bhag Singh went to
th~. 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
cf Churi deceased was found lying in a pool of blood. There was
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NIKA RAM v. STATE (Khanna, l.)
431
a quilt up to the chest of the body.
A no~mber of injuries were
found on the body. A Khokhri, its scabbard, males_ hirt and a pair
of tongs were lying near the body stained with blood. The Head
Constable then took steps for keeping a watch o;ver the houSD.
Police station Tbeog is at a distanl 3 of 20 miles frclil Shi!ll[QO.
Sub Inspector Devi Singh of Theog police station wus on the ni§ht
of Scpiember 16, 196<; aw&y to Gajairi at a dist<:nce of five or
six miles from Theog in connecticn with a fair tilcre. At about
mid night the Sub Inspector received innmation that a murder
had taken place at Kotkhai. The Sub Inspector acco~dingly went
in a truck to Kotkhai and reached there at about 3 a.m.
The
Suh 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. The Sub
Inspector prepared .injury statement and inquest report. · The
blood-stained clothes as well as Kilokhri P. 1 and its scabbard
were taken into possession and were made into sealed parcels.
The dead body of Churi 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 p.m.
on Scpkmber 17, 1969.
Parcels containing the blood-stamed
articles which had been taken into pos;ession from the spot were
sent to the C)lemical Examiner and the Serologist, whose reports
showed that human blood was found on the Khokhri, scabbard
and the male shirt.
The accused was sent to judicial ·1ock up on September 17;
1969. On September 29, 1969 Sub Inspector Devi Singh made
an application to PW 6 Shri Raj Kumar Sharma, magistrate first
F
class Theog for recording the confessional statement of the accused.
The accused was also produced before Shri Sharma. Shri Shanna
then apprised the accused of the conseq ucnces of confession. The
accused volunteered to make a
confessional
statement. .Shri
Sharma, however, considered it necessary to give him time to thlnk
over the matter.
The accused was accordingly ordered. to be
produced on C'ztober 4, 1969. Shri Sha1ma, who .also holds his
G.__
eourt at Kasumpti, could not visit Theog on October 4, 1969.
· The accused was directed to be produced before Sbri Sharma on
October t 8. 1969. On that day the accused declined to make
any confessional statement.
. At the trial the accused stated that he had b~n married to
11
Cl>uri deceased in 1957. It was admitted ·by the accused.tMt
Churi had· given birth to Joginder about fuilr .yean af111r :ibe
martiiige, but 'he denied having ttiaJtreatu! Chun. '1'!1e ~ll.91!d
admitted that Churi had come to bJS house. on:the Sh1natti dayi
432
SUPREME COURT REPORTS
(1973) l :>.C.R.
bul, according to him, the child too had c0111e along wilh her. '\s
regardS the date of ·occurrence, the accu>cd stated that he was
with Churi in the house during the day but at 6 p.m. he left fqr
Kolkhai leaving 'his wif.i: alone at the house. The accused denied
having gone to Shri Mahajan and having made any confe>sional
statement on the night of occurrence. It was also denied by the
a~cused that his Kachha and coat were. in a wet condition at ti e
time of Ills arrest.
As regards the biood-stained Khokhri aod
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 last
14 years. I claim the son to be my own.
He is not
illegitimate.
I left my house at 6 o.m. on 1st of Asuj
)ast year. It was Tuesday, 2026 Dk. leaving my wire
a( home, to ·see a documentary Jilm being exhibited at
Kotk}iai. 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.l. 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 th1; prosecution case that it
was the accused who had caused injuries 10 Churi deceased, as a
result of which she died. Reliance in this connection was pla~cct
upon the other evidence addt!ced by the p10secution 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 upor. 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 acwsed-appellant through
jnil. Arguments have, however, been addtessed on his behalf by
Shri Narayana Rao, who has contended that the material on reord
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is not sufficient to justify the conviction of the accused-aμpcllJnt.
Admissibility of the confessional statement of the accused recorded · H
by Shri Mahajan PW has also been que>tioned.
As against that,
Mr. Khanna on behalf of the State has convassed for the correct~
ness of the view taken by the High Court.
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NIKA RAM v. STA·r;; (Khanna, J.)
433
It cannot be disputed that Churi deceased died as a result
of the injuries ihllicted upon her.
Dr. G. C. Gupta, who p<rformed. po3t mortem examination on the dead body of the deceased, found ten injuries on the body of the deceased, out of whi~h
the follow'ng three were individually sufficient to cause death m
the ordinary course of nature :
"(1) Punctured wound right side of the neck, 2
inches diameter, It inches deep.
(2) Punctured wound 2" di:;metcr, lt" deep, 2"
below injury No. I.
(3) Incis~ wound 6"X l"X !" on left side of the
neck."
· Besides the above three injuries, there were one incis'd wound
OH the left eyebrow, two incised wounds on the left forearm, on'!
incised wound on the fingers of the left i1ar.d, one inciscJ 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 ~aused by
Khokhri P. 1 Larynx and trachea were found to be tom and punctured.
Probable time between the reczipt of injuries and de~th
was five minutes, while between death and post mortem was 19-}
hours.
According to the prosecution case, the injuries found on the
body of Churi deceased were caused by tite accused. The accused,
as stated earlier, has denied this allegaliJn. 1 In order to biing the
cha1ge 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 the accused-appe;J.mt that
confessional statement Ex. PH is n.:>t aJmissible 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
durinl!; the investigation of the case and as it was not recorded
in the manner presctibed by section 164 of the Code of Criminal
Prccedure, the same is inadmissible in evidence. In this context,
we find that according to sub-section ( 1 ) of section 164 of the
Code of Criminal Procedure, any Presidency Magistrate, :iny
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 polic~ officer, record any statement or confession
made. to him in the course of an investigation under this cha,oter
• (Chapter XIV of the Code) or under any other law for the time
being in force or at any time afterwards before the commencement
434
SUPREME COURT REPORTS
[1973) I S.C.R.
of the enquiry of trial. There is. no material on tho record to indicate that Shri Mahajan was a second cla&s magistrate who had
oeen specially empowered by the Statlil Government to record a
confession.
Indeed, Mr. Khanna on behalf of the re&pondentState has argued the case on the assumption that Shri Mahajan
was not specially empowered in this behalf. Question as to whethe1 a confession recorded during the investigation of a case by
a second class magistrate not specially empowered was admissible
in C;Vidence was considered by this Court m the case cf State of
U liar Pradesh v. Sing hara Singh and Others. (1) It was held that
the record of such a confession could not be put in evide11..e under
sections 7 4 and 80 of the Indian Evidence Act. Reliance in this
connection was placed upon the decision of the Judkial Ccm1U1ttee
in the case of Nazir Ahmed v. King Emperor.(') 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 pow~r 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 -iven to him. Now the power has
been conferred by s. 164 on cenaiu ma,gistrates
of
higher classes. Obviously, it was not inte.nded to confer
the power on magistrates of lower classes.
If, therefore, a proper construction of s. 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 createj for the benefit of
an accused person by s. 164 would be rendered nugat0ry,
it would be an unnatural construction of the srction
to hold that these safeguards were uot thought nece>sary
and could be ignored, where the confession had been
made to a magistrate of a lower class and that such a
magistrate was, therefore, free to give oral ev1denc0 of
the confession made to him. W c cnnnot put an interpretation on s. 164 which produces the anomaly that
whilt; it is not possible for higher class magistrates to
Practically abrogate. the safeguards created in s. 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,
~ere to oral evidence given by Mr. Dixit of the confession made to him must be held inadmissible."
Mr, Khan!!~ on behalf o! the State concedes that in view of the
above dec1s10n, a confession recorded by a second class magistrate
:(!} [1964) 4 S.C.R. 48S.
(2) LR.63 I.A. 372.
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NIKA RAM v. STATE (Khanna, /,)
435
not specially, empowered during the investigation of a case is. not
admissible in evidence and no oral evidence in re;pect of that
confession can also be led at the triai.
Mr. Khanna, however,
contends that the restriction on the aJmbsibility of the i;bove
evidence would operate only if the contession is recordt:d during
the course of investigation. If, however, the confession is 1\!COrdeJ at a stage prior to the commencement of investigation, there
would be no bar to the admissibility of such a confes;ion. Reference in .this connection has been made to the case of In re Yondra
Narasimha Murthy.(') In that case an accused·afte1 committing
mu1der w:nt to a second class magistrate and made a statement
that he had killed the deceased. The otatement wa; recorded by .
the magistrate and was signed by the accu;cd. It was lield that
the aforesaid statement was admissible in evidence. Dealing with
the contention that there had not been compliance with section 164
of the Code of Criminal Procedure, the court observed that the
p~>son making the confession was not an accused at the time he
went to the magistrate artd no investigafon of a cnme registered
against him was in progress at that tim~.
Question consequently arises whether statement Ex. PH was
rewrded 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 lhat the time mentioned by
Shri Mahajan of the recording of conf~ssional statement was 11
p.m. while the intimation which was given by Mangat Ram (PW
10) to the police regarding a murderer havmg come t0 the residence of Shri Mahajan was entered in the daily diary dt 10.50 p.m.
Head Constable Bhag Singh (PW 13) ~ft.er hwing 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 offende1 is one of the essential steps in the course of an investigation (see in this connection
H. N. Rishbud and lnder Singh v. The State of Delhi(') and The
State of Madhya Pradesh v. Mubarak Ali.(') We are, therefore,
of the view that the contention advanced on behalf of the appellant
that the confessional statement Ex. 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 confes:.ional 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 and
Churi deceased resided in the house of the accused. To similar
effect are the statements of Mani 'Ram (PW 8), · whl• is the uncle
(I) A.LR. 1966 A.P. 131.
(2) [1955] I S.C.R. 1150.
(3) [1959] Supp. 2 S.C.R. 201.
436
SUPREME COURT R.-PORTS
(1973] l S.C.R.
ol tfle accused, and Bhagat Ram school teacher (PW 16). . According to Bhagat Ram, he saw the accused and the deceased to, .
gether at their house on the day of occurrence. Mani Ram (PW
8) saw the accused at his house at 3 p.m., while Poshu Ram. (PW
7) saw the accused and the deceased at their house on the evening
Qf the day of occurrance. The accused also does uot 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 '\·ith the deceased, as
would be shown hereafter. were strained would, in the absence of
any cogent explanation by him, point to his guilt.
·
The evidence of Naf?Ju (PW 2), mother of the deceased,
shows that tlie accused had· been illtreating Churi deceased. It is
further in the testimony of Girju (PW 1) that the accused had a
Khokhri at his house similar to Khokhri P. 1 which was found
near the dead body of the deceased an<l 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 <:vidence 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
!he house of Shri Mahajan and talked to him.
Shri Mahajan
thereafter sent foi: Head Constable Bhag Singh through Mangat
Ram.
Head Constable Bhag Singh has deposed rng:irding his
having arrested the accused at the house of Shri Mahajan. The:
dead body of Churi deceased was thereafter discovered iying in
the house of the accused. · The discovery of the dead ·body from
the house of the accused can thus be traced to tk visit of the
accused to the residence of Shri Mahajan.
The various circumstances. referred to above, in 01,1r opinion,
clearly point to the conclusion that it was tl1e accused and none
ebe _who was responsible for the mutder of Churi dece~sed. The
plea of the accused that he had gone to see film show at Kotkhai
on that evening and that the murder of the deceased was committed during his absence cannot be accepted. Had the nccused
gone to the film show, the persons with whom he s:it 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 Rain was with him (It 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 p.m. Assuming' that the accused
Went to the film ~how, it would not have taken more than l 0 or
A
c
D
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G
H
A
B
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NIKA RAM v. STATE·(Khanna, !.)
437
15 minutes for the accused to return to hi; house after the film
show. The accused would thus be presert al his house at about
9-30 p.m. when the present occurrence took place.
Had someone other than the accused murdered his wile Churi, the accused
would have raised hue arid cry and this fact must have ~ttracted
to the spot his neighbours like Poshu Ram PW.
The accused
wouid have also in that event . gone and made a report to the
police.
The conduct c;>f 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 inn0cen~e. The version
of the accused that he was taken by the i::olice to th~ police pest
from the bazar cannot be accepted because there is nothing to·
shOIY that the police was aware of the murder of Churi deceased
before the visit of the accused to the house of Shn Mahi1jan. On
tl1e contrary, ihe evidence on record establi>hcs beyond any manner
of doubt that the dead body of the dec.:11~cd wa;; recovered after
the accused had visited the house of Shri Mahajan.
We
are,
therefore, of the view that .it was the a~cused and none else who·
caused injuries, to Churl 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 suspec~ed the fidelity of Churi deceased and believed that
Jciginder had been born to her as a result of her adulterous conduct.
Had Joginder been the son of the arcus~d, the accused
wouid have had a natural affection for Lile er.lid 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 '!he occurrence, th>~ accused enquired from
the·
deceased regarding the father of the boy and the deceased thereuprn abused him. The act of the deceased in abusing the accused
must have been taken oy the accused to be adding insult to the·
injliry by an unchaste. wife. In view of tbi;; above, it would, in
our opinion, meet the ends of justice lf the accused is awarded'
the lesser penalty. We, therefore, alter hi8 sentence into that of:
imprisonment for life.
G.C.