In re.- Rajah Singh

Kunhamed Kutti, J.—The petitioner Rajah Singh Nadar now stands convicted and sentenced to two years R.I. under S. 471 read with S. 466, I.P.C. This is as modified by the Sessions Judge in appeal. As originally charged before the Assistant Sessions Judge, there were two offences against him, one for cheating by personation punishable under S. 419, I.P.C., and the other for using as genuine a forged document punishable under S. 471 read with S. 466, I.P.C., and in respect of both, the learned Assistant Sessions Judge found him guilty and convicted him, but in appeal the learned Sessions Judge acquitted him of the offence under S. 419, I.P.C. The facts leading to the aforesaid charges are shortly as follows :

The petitioner was a passenger on board "S.S. Ghoshen" on 19th October 1961. When his passport was checked by P.W. 1, a Port Registration Officer at Dhanushkodi, at about 8 a.m., on 19th October, 1961, he was found to carry a passport with his photo but in a false name, for while the petitioner is called Raja Singh Nadar, the passport contained the name Jabamani Nadar, as if he was the owner of the photo and the passport. When questioned the petitioner made a statement as per Ex.P-2 signing his name as "P. Raja Singh Nadar." P.W. 1, therefore, handed over the accused with the passport Ex. P-1 and the statement to P.W. 2 the, Head Constable. He registered a crime and took up investigation. P.W. 3, the Sub Inspector, who took up further investigation, charge-sheeted the petitioner as stated above.

The evidence against the petitioner consisted of Ex.P.1, seized from him and the statement Ex.P. 2 recorded by P.W. 1. It is strongly contended before me that since this statement amounts to a confession and having been made to P.W. 1, who occupied the position of a police officer within the meaning of S. 25 of the Evidence Act, it was not admissible in evidence. The learned trial Judge has admitted in evidence only such portion of it (marked as Ex.P. 2) as led to the discovery of certain information, as for instance, that the petitioner is called Rajasingh Nadar, that he had gone to Ceylon, that Jabamani Nadan. his elder brother, died in Ceylon in 1956 etc.

Now, the contention that no portion of Ex. P-2 is admissible in evidence and if excluded, there is no evidence on record to bring home the guilt to the accused is sought to be supported by the Supreme Court ruling in Hanumant Vs. The State of Madhya Pradesh, , wherein it has been pointed out that an admission whether amounting to a confession or not cannot be split up and part of it used against an accused and that it has to be used either as a whole or not at all. The scope of the proposition and the circumstances in which it was laid down have to be appreciated to see how far it could help the petitioner. The case before their Lordships was one for conspiracy to secure a contract by forging the tender and the evidence of the expert examined in that case was sought to be corroborated by the statement of the accused under S. 342, Crl.P.C. The observation relied on before me was made in dealing with the above statement relating to a letter. The trial Magistrate and the learned Sessions Judge accepted part of the statement for coming to a certain conclusion regarding the letter and their Lordships deprecated such use of the statement of the accused and said that such a statement cannot be split up and part of it used against the accused more so when as in that particular case, if the statements were used as a whole, it could completely demolish the prosecution case. It seems to me that on the facts of the present case, advantage cannot be taken of the above observation to exclude the admissible portion of the petitioner''s statement marked as Ex.P-2.

In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), the High Court accepted a part of the confession made by the accused and treated the rest as false. This again, to my mind, is a case distinguishable on facts from the present case, nor can S. 31 of the Evidence Act help the petitioner when the conviction is based not merely on the aforesaid admissible portion, but on a consideration of the other evidence and circumstances in the case, which demonstrated beyond doubt that, while the petitioner''s name was Rajasingh Nadar, he had signed in Ex.P. 1 as Jabamani Nadar, beneath his photograph to make it appear that his photo in Ex.P. 1 was that of Jabamani Nadar. He had perhaps an obvious motive in signing as Jabamanl Nadar. He had gone to Ceylon as a stowaway and there would have been trouble if his real name was disclosed in Ex.P. 1.

Stress was nevertheless made by the learned Counsel for the petitioner that the statements under S. 342, Crl.P.C., before the committing Court and the Sessions Court that he put the signature in Ex.P. 1 as Jabamani Nadar could not be accepted as substantive evidence. In fact, the learned Counsel went to the length of contending that Ex.P. 1 itself could not have been accepted as evidence. No valid reason, however, was urged before me to hold why Ex.P. 1 could not be accepted as evidence. It is DO doubt a document seized from the petitioner, but that circumstance by itself would not make the document inadmissible, the seizure has been sworn to by P.W. 1 and the fact has been admitted by the petitioner in his statement under S. 342, Crl.P.C. The question, however, is whether this statement could be used against the petitioner.

In Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay, the Supreme Court has held the conviction of an accused cannot be based merely on his statement recorded under S. 342, which cannot be regarded as evidence; and in Moral Maihi v. State AIR 1953 Cal. 616, the Calcutta High Court has explained that, having regard to the definition of evidence in S. 3, Evidence Act, unless the statement be the statement of a witness it cannot be treated as evidence. Therefore, when an accused makes a statement in answer to questions from Court, it does not fall within the definition of the word "evidence" as defined in the Evidence Act; but it could be taken into consideration in any enquiry or trial though they would not be technically evidence as defined in S. 3 of the Evidence Act.

In Karnail Singh v. State of Punjab AIR 1954 S.C. 204, in a charge for murder under S. 302 read with S. 149, I.P.C., where the conviction was made under S. 302 read with S. 34, I.P.C. the Supreme Court had to consider the validity of the conviction in the light of S. 337, Crl.P.C., and incidentally, to the use of the statement of the accused under S. 342, Crl.P.C. The rule laid down in that case is that if the statement under S. 342, Crl.P.C., is sought to be used as an admission, it must be read as a whole; but where it consists of distinct and separate matters, there is no reason why an admission contained in one matter should not be relied on without reference to the statements relating to other matters. What is, thus, clear on the authorities is that the statement of an accused under S. 342, Crl.P.C. is not evidence as defined in the Evidence Act. But such statement under circumstances indicated above, can be used against him to lend assurance to the other evidence in the case. In the present case, as I have already indicated, the conviction is not based on the statements under S. 34?, Crl.P.C., but on a consideration of the other evidence such as the seizure of the passport, Ex.P. 1, the name entered therein, the admissible part of the petitioner''s statement marked as Ex.P. 2 and the inference available from all these pieces of evidence taken as a whole It seems to me that the procedure adopted is not open to any legal objection and therefore the conviction under S. 471 read with S. 466, I.P.C. confirmed by the learned Sessions Judge, is not liable to be interfered with. I am, however, inclined to take a lenient view of the sentence in this case and would reduce it to one year''s R. I. It is so reduced and subject to this modification, the appeal is dismissed.