Kanhiya vs State of Rajasthan

V.P. Tyagi, Ag. C.J.

This appeal by Kanhiya fa directed against the judgment of the learned Additional Sessions Judge, Gangapur City dated March 14, 1974 whereby the appellant was convicted for an offence u/s 302 IPC, and sentenced to imprisonment for life for having committed murder of Mst. Dhooli and her son Shyoji, a nine years old boy. He was also convicted for an offence u/s 379 IPC, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/-, or in default to further underego rigorous imprisonment for two months Both the substantive sentences were however ordered to run concurrency.

The facts giving rise to this case are as follows: Mst. Dhooli was married to Kanhiya resident of village Jhopada. She had a son Shyoji from this wedlock. In the year 1972 just before ''Holi'' Mst. Dhooli''s brother Durga Lal, came from jadawata to fetch his sister Mst. Dhooli and look both Mst. Dhooli and Shyoji to his village Jadawata on a promise that both of them shall return on March 3, 1972 Mst. Dhooli''s husband Kanhiya waited for return of his wife upto March 9, 1972 When Mst. Dhooli and her son did not reach her husband''s house Kanhiya went to Jadawata to find cut the cause for nor returning in time Kanhiya was informed by Durgalal that both Mst. Dhooli and Shyoji had left by a bus for village Jhopada. A search was made but no trace could be found out except that some bones and pieces of clothes near river Galba were found out. There is nothing on the record to indicate that the bones could belong either to Shyoji or to Mst. Dhooli. A report was lodged at the Police Out-post, Chothka on March 9, 1972 that Mst. Dhooli and Shyoji were murdered. A case of murder was registered but no trace was found either of the corpus delicti or the act of murder. Kanhiya was arrested at 12.30 pm, vide Ex. P15. It is alleged that while he was in custody Kanhiya furnished information regarding the ornament�s which were worn by Mst. Dhooii on the day when she disappeared and in pursuance of that information, which was recorded in memo Ex. P16 recovery of the ornaments of one pair of silver ''kada'' of her legs and another pair of silver "kada" of her hands, & one silver ''pipal patta Jhumka'' was made. After usual investigation accused Kanhiya was found responsible by she investigating agency for the murder of Mst. Dhooli & Shyoji and therefore he was challaned Kanhiya faced his trial u/s 302 I.P.C. before the Court of Additional Sessions Judge, Gangapur City.

There was no eye-witness to the occurrence, therefore, the prosecution placed relience on circumstantial evidence. The most important circumstance, on which reliance has been placed by the prosecution, is the recovery of the ornaments of Mst, Dhooli from the "Dhunda" belonging to the accused Kanhiya Except this circumstance there is nothing to the record to connect Kanhiya with the disappearance of Mst, Dhooli and Shyoji and the removal of the ornaments from the body of Mst. Dhooli. The learned Judge believing this circumstance as a piece of evidence to connect the accused with the murder of Mst. Dhooli and Shyoji convicted him for offences u/s 302 and 379 IPC as referred to above. It is against this judgment that Kanhiya has filed this appeal before us.

The learned Public Prosecutor and Mr. Agarwal, appearing on behalf of appellant, agree that there is in other circumstance except the recovery of three silver ornaments of Mst. Dhooli at the instance of Kanhiya to fasten the guilt on the shoulders of Kanhiya appellant. Mr. Agarwal urged that the recovery of the ornaments cannot be said to be at the instance of accused Kanhiya because according to the arrest memo Ex. P15, Kanhiya was arrested by the Police on July 6, 1972 at 12.30 p.m., whereas Ex. P16, which is an in formation memo, recorded by PW. 14 Shri Shanker Sareliya, Deputy Superintendent of Police, was prepared it 12 noon, which shows that before, Kanhiya accused was taken into custody the information was passed on by him to the Deputy Saperintendent of Police. In these circumstances it is urged that the information given by the accused to the police authorities cannot be covered by the provisions of Section 27 of the Evidence Act as Kanhiya could not be said to be in custody at the time when the information was given by him to the police authorities.

Section 27 requires that if the information whether it amounts to a confession or not relates distinctly to certain facts which are ultimately discovered is given by the accused to a Police Officer while he was in custody then that information to the extent to which discovery has been made shall be relevant in evidence. The question therefore arises whether a person who was not formally arrested if passed on certain facts to the Police Officer which ultimately resulted in certain discoveries then whether such confessional facts disclosed by the accused to the Police Officer, can be read in evidence against the accused by applying the provisions of Section 27 of the Evidence Act?

it is not disputed that the information was passed to regarding the whereabouts of the ornaments belonging to Mst. Dhooli by Kanhiya to the Deputy Superintendent of Police which means that Kanhiya was with the Police at the time when the information was given by him. Ex. P16 shows that the information was recorded at 12 noon whereas the arrest memo Ex. P15 indicates that the formal arrest was made by the Deputy Superintendent of Police at 12.30 p.m. In these circumstances the point for determination is whether the information as give a by accused appellant Kanhiya shall be taken to have been given while he was in custody of the Police?

In State of U.P. Vs. Deoman Upadhyaya, this very question came up for the consideration of their Lordships of the Supreme Court, whether be fore an actual arrest shows by the police authorities a parson could be said to be in the custody of the police for the purpose of Section 27 of the Evidence Act The learned Judges in that connection observed:

Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody; submission to the custody by word or action by a person is sufficient A directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of Section 27 of the Indian Evidence Act.

In Mt. Maharani Vs. Emperor, the learned Judge described the meaning of "custody'''' used in Section 27 of the Act as follows:

The word ''''custody" in Sections 26 or 27 does not mean formal custody but includes such state of affairs in which the accused can be said to have come in the hands of a police officer or can be said to have been under some sort of surveillance or restriction.

In another case: Aghnoo Nagesia Vs. State of Bihar, the Supreme Court again considered this question and observed.

For the purpose of the case we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence.

In that case the information was given by the accused by lodging the first information report soon after the murder was committed and by the time the information was recorded he was not formally arrested. Learned Judges of the Supreme Court in these circumstances held that at the time when the in-formation was passed on by the accused he will be deemed to be Constructively in custody. The doctrine of constructive custody applied by the Supreme Court is applicable to the circumstances if the present case.

The Investigating Officer in the witness box was not questioned by either party to explain the anomaly in the timings recorded in Ex. P1J5 and Ex. P16, but if we take it that the timings recorded by him in these two documents were correct even then it is difficult for us to accept Mr. Agarwal contention that t e accused was not in constructive custody of the police at the time when be passed on information when Ex. P10 was prepared, became it was in the presence of the Police that the information was given by him and therefore even if formal arrest had not been made and he was formally arrested after half an hour when the information was parsed on to the Police Authorities it shall be deemed that the accused was in the constructive custody of the Police and therefore the information recorded in Ex. P16 in pursuance whereof discoveries of the silver articles were made shall be relevant in evidence and is admissible u/s 27 of the Evidence Act.

The next question which in the context of these discoveries arises is whether in the circumstances of this case. Kanhiya can be held guilty for murder of Mst. Dhooli and her son Shyoji? The investigating agency could not discover the corpus depiction is there any evidence on the record to shows that both Mst. Dhooli and her son Shyoji died between 6th & 9th March 1972 The prosecution did not take care to bring on record any fact that the bon and pieces of clothes seized near the river either belonged to or could be that of Mst. Dhooli and her son Shyoji. In the absence of any material on record it is difficult to hold that Mst. Dhooli and Shyoji have died. In this view of the matter the charge u/s 302 I.P.C. for committing murder of Mst. Dhooli and Shyoji cannot be sustained. The next question is what offence has been committed by the accused in the circumstances of this case. The three ornaments belonging to Mst. Dhooli have been discovered in pursuance of the information given by accused Kanhiya. This discovery cannot lead us to into that the ornaments were removed from the body of Mst. Dhooli after she was murdered. At best a presumption can be drawn against Kanhiya, from whose possession the ornaments of Mst. Dhooli were recovered, after a lapse of about four months that be was guilty of an offence u/s 411 I.P.C.

Accused-appellant Kanhya is therefore convicted u/s 411 I.P.C. He is acquitted of the charge u/s 302 and 379 I.P.C., and the sentences awarded to him under the said two offence are set aside. The accused appellant Kanhiya shall however undergo a sentence of two years'' rigorous imprisonment u/s 411 IPC. The accused-appellant Kanhiya was arrested on July 6, 1972 and since then he is in jail. He has already undergone the sentence awarded to him u/s 411 I.P.C. He shall therefore be released forthwith from jail, if not required in any other case. The appeal is accordingly disposed of.