Mohan Singh vs State

Dua, J.—This appeal is directed against the order of the learned Additional Sessions Judge, Delhi, convicting Mohan Singh appellant u/s 302, Indian Penal Code, for the murder of Tirath Ram by giving him knife blow. He was liable to be sentenced to death or to imprisonment for life but the Court below relying on section 22 of the Bombay Children Act (Bombay Act XIII of 1924) as extended to Delhi, directed a report to be made to the Delhi Administration u/s 26 of this Act to pass such orders as the said Administration may think fit and proper for the detention of the accused. Till the receipt of the orders of the Delhi Administration, Mohan Singh accused was directed to be kept in safe custody in the Remand House where he was kept daring the trial. This order was passed on 24th May, 1961. On 28th September, 1961 the learned Additional Sessions Judge in accordance with the direction of the Chief Commissioner ordered that the appellant be detained in Reformatory School, Hissar, till he attained the age of 18 years and thereafter to be detained in the Borstal School Ferozepur till be attained the age of 21 years. It is necessary to point out here that the accused was considered to be 15 years old on 16th August, 1960. The offence was committed on 26th July, 1960. He was, therefore, a youthful offender as defined in section 3 (c) of the Bombay Children Act, being under the age of 16 years at the time of the commission of the offence. It is in these circumstances that the present appeal has been preferred.

To begin with, the learned counsel for the appellant addressed arguments challenging the order of the learned Additional Sessions Judge directing the appellant''s detention in the Borstal School. Ferozepur, after he attains the age of 18 years. This argument has been addressed on the assumption that the conviction is justified and indeed the learned counsel started her contention by submitting that in case she failed to persuade us to agree with her on this point, she would address arguments on the merits of the conviction. In support of this contention, we have been referred to High Court Rules & Orders, Vol, III, Chapter 22-D, which contains the instructions issued by the Punjab Government in its circular dated 4th February, 1939 on the subject of Borstal Jail extracts. The learned counsel has contended that it is not proper for the appellant to be sent to Borstal Jail after he attains the age of 18 years because there, he would be in the company of more hardened criminals which would have an unwholesome effect on him and that he may come out of the Borstal Institution a more hardened criminal. She has emphasized that according to her information the appellant is behaving in an exemplary manner in the Reformatory school and that after three years there is every like hood of his being fully reformed and that it would be more desirable that he is restored to his liberty rather than kept in the Borstal Institute for another period of three years which may undo the good effect of his detention in the Reformatory School. In support of this contention, she had referred us to the various passages in Chapter 22-D mentioned above. In am, however, unable to persuade myself to agree with this contention. In my opinion, keeping in view the tendencies of the appellant at this young age, it would be far better for him to remain in the Borstal Jail after the age of 18 years and to remain under certain discipline.

The appellant''s learned counsel has suggested to us to look at the report u/s 27-A of the Bombay Children Act secured by the Court below in this case. Since she had not so far been shown this report, she was not aware about its contents. We have accordingly looked at the report relating to appellant Mohan Singh. Regarding previous Court or institutional history, it has been stated therein that about 1 1/2 years back once previously too the appellant had been arrested under a theft case but was acquitted. The Station House Officer, Lajpat Nagar, was also contacted who stated that except the theft case, there was no other legal record against the appellant. Regarding the family history, the appellant''s father is one Balwant Singh, 55 years old doing dairy work and his mother Smt. Harbans Kaur, aged 50 years, also doing dairy work. Then there are the following members of the family mentioned:

Raj Kaur, 35 years old, married at Jhansi, her husband being a clerk in Railway?.

Inder Singh, 33 years old, married, also working in the dairy with his father. He is read up to VII or VIII class.

Gurcharan Singh, about 28 years old, is a graduate and is married. He is serving in the Ministry of External Affairs as a clerk.

Mangal Singh, 26 years old, read up to Intermediate, is married and is a Stenographer in Air Force.

Balbir Singh, is 19 years old and is a Matriculate. He is learning typewriting and shorthand, is unmarried and is living with his father.

Sixth is the appellant who was preparing for Matriculation Examination through New Shining College (a Private institution in Lajpat Nagar) and

Harbhajan Singh, 8/9 years old, not reading anywhere and mentally weak.

The family is described to be religious-minded but the social and economic status is stated to be poor. Present living conditions have been described to be satisfactory and they are stated to be living in rented quarters. It is finally stated that the appellant''s parents or elder brothers did not care to look after this boy''s activities at all and it seems that they always used to take everything very lightly while sometimes some of his activities were of a punishable nature. It is also noted that though the appellant''s physical condition is normal, he has every bad habit like gambling, smoking, frequent cinema-going, stealing and is possessed of somewhat loose character. In so far his personal traits are concerned, he has been described to be a very bold and fearless type and his company has been found to be very undesirable such as that of vagabonds, delinquents and loafers etc. His school teachers, who were also contacted, were highly against the habits of this boy, though there was nothing concrete on the school records; his behavior was not good towards his fellow students. He was least interested in his studies and con the whole his teachers did not hold a good opinion about him. Several of his immediate neighbors were also contacted but they were hesitant in saying anything about him. From their impressions and gestures, it was gathered that they were not at all holding a good opinion about this boy. The parents were in the end again stated never to have tried to check the growing bad habits of their son. In so far as his final analysis is concerned, it has been stated that the boy''s parents and his brothers are educated, well placed and gentle in nature, but this boy has from the very beginning been averse to studies and had got into bad company and with growing age got into bad habits. His parents and elder brothers never tried to pay any attention to him or to check him in his undesirable activities: with the result that he has become not only a spoiled child but has also become somewhat bold and fearless. It has thus been considered to be essential to remove the boy away from his present society which is stated to be highly undesirable. It is thus recommended that he may be sent to some institution where he may be dealt with psychologically so as to improve his bad habits and prepare him for an honest and industrious life. This report is dated 7th February, 1961.

This report, as is obvious, fully justified the order of the Court below.

The contention that the Bombay Children Act does not postulate the impugned order of detention in the Reformatory School 10 to the age of 18 and thereafter in the Borstal Jail appears to me to be without sound basis and indeed our attention has not been drawn to any provision of this Act which would support the contention.

The learned counsel has placed considerable reliance on Chapter 22-D of Vol. III, High Court Rules & Orders of this Court laying down broad instructions in respect of sentences suitable for different kinds of youthful offenders and in which the distinguishing features of Borstal treatment from an ordinary imprisonment have been prominently brought out, but this Chapter does not in any way show that the order passed by the Court below is either contrary to law or otherwise improper. On the other hand, on the facts of this case, I entertain little doubt that the detention in Borstal Jail after the appellant attains the age of 18 years and is on that account pleased from the Reformatory School would do him immense good. Reference, to section 8 of the Reformatory School Act (8 of 1897) is also unavailing to the learned counsel, for it does not, as is suggested, rule out the possibility of an inmate of the Reformatory school to be directed to be sent over to a Borstal Jail after he attains the age of 18 years.

Having failed in her attempt to persuade us to quash the order relating to the detention of the appellant in the Borstal Jail, the learned counsel tried to challenge the merits of the conviction and took us through the evidence on the record. The eye-witnesses of the occurrence are Shri Radhey Sham P. W. 5, a student of Government Higher Secondary School, Lajpat Nagar and Harbans Lal P. W. 7. The former was 14 years of age at the time when he appeared as a witness and was described by the learned Additional Sessions Judge to be intelligent and capable of understanding the questions put to him and of giving intelligible answers thereto. He has in clear terms deposed that on the date of the occurrence he and Harbans Lal P. W. 7 were going to the school when both the accused (Mohan Singh and Karan Singh) were standing near the National Bank, Lajpat Nagar, Tirath Ram was following the witness and Harbans Lal at some distance. Both the accused called the witness, and Harbans Lal and Mohan Singh interrogated the witness, asking him as to why he (the witness) had abused the accused. On the witness denying that he had ever abused Mohan Singh put his hand in his dub (waistband of the pant. Suspecting that Mohan Singh had a knife with him, he and Harbans Lal both ran away and stopped at a distance of 10 or 12 paces. Mohan Singh, according to, this witness, previously also used to similarly frighten away the boys In the meantime, Tirath Ram deceased reached near the accused and they similarly called him near them. Mohan Singh asked Tirath Ram to pay back his money. Tirath Ram enquired from him as to which money he was demanding back. Thereupon Mohan singh asked him to return two pice which he had taken the other day. Tirath Ram replied that he did not possess any money at that moment. At this, Karan Singh caught hold of Tirath Ram by the neck from behind and Mohan Singh taking out the knife from his dub gave the deceased a blow on his chest. Thereafter, both the accused ran away. In cross-examination, nothing serious has been elicited which would discredit the version given by him. He and Harbans Lal P. W. 7 thereafter went to Ram Math, brother of the deceased, and informed him of the occurrence. Ram Nath took a taxi and came to the place of occurrence along with these boys. When they reached back, Tikkan Lal P. W. was present at the spot. To the same effect is the testimony of Harbans Lal, 10 years old student of the 6th class, Government Model Higher Secondary School Lajpat Nagar This witness has also been described by the Court to be intelligent and capable of understanding questions put to him and of giving intelligent replies. He substantially corroborates the version given by the earlier eye-witness. In cross-examination of this witness, against nothing serious has been brought out which should discredit his testimony. Tikkan, Lal P. W. 8 who arrived at the spot immediately after the injuries inflicted on Tirath Ram has also deposed about what he saw. It is true that be has also stated that Tirath Ram at the time of his arrival was conscious and when he lifted the injured boy''s head, he told the witness that Mohan Singh and Karan Singh had given him the knife blow. This oral extra-judicial confession may conveniently be ruled out of consideration because such confessions are usually evidence of a very weak character and can scarcely inspire confidence of the Courts without compelling reasons. No such compelling reasons have been made out in this case. Be as it may, the testimony of the two eye witnesses who are unsophisticated school going boys and who have not been shown to be inspired by any feeling of enmity towards the appellant is, in my opinion, sufficiently impressive and fully justifies and supports the conviction. The minor discrepancies about the brother of the deceased having reached the spot in a taxi along with the two boys or without the two boys, as the taxi-driver is shown to have deposed, are in my opinion, discrepancies of truth rather than a badge of falsehood. The taxi driver who was giving evidence after such a long time could obviously not be implicitly relied upon in this respect and indeed it seems to be more natural and likely that the brother of the deceased came back to the spot with his informants in the taxi.

The learned counsel very eloquently and perhaps properly directed her next challenge to the confession of Karan Singh the co-accused who has been convicted by the Court below under sections 323-109, Indian Penal Code, and has been released on probation of good conduct for six months during which period he has been committed to the care of his brother Jagdish Chander on his executing a bond in the sum of Rs. 1000/- with one surety in the like amount to be responsible for the good conduct of the boy. It has been urged with certain amount of force that the learned Magistrate recording Karan Singh''s confession did not take all the requisite precautions for satisfying himself that the confession was voluntary and free from any undue influence or inducement or from the influence of the police. The child, so argued the counsel being about 12 years of age, the learned Magistrate should have afforded him an opportunity to see his parents and his counsel or at least should have taken greater care than the case of an adult accused may demand, in seeing that the child has not been either seduced or coerced into making a confession.

Here, I consider it proper to point out that a confession by a co-accused is not evidence within the contemplation of section 3 of the Indian Evidence Act which defines "evidence" to mean and include :

All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry, such statements being called oral evidence and

All documents produced for the inspection of the Court''-Such documents are called documentary evidence.

It is evidence only in the sense in which a Court is empowered under f section 30, Indian Evidence Act, to take it into consideration against the person making the confession as well as against such other person who may be jointly tried with him for the same offence. The legal position, therefore, in respect of such a confession is that the Court cannot with the examination of such confessional statement, the stage of considering it arises only after the other evidence has been considered and found to be satisfactory. Ram Prakash Vs. The State of Punjab, on which the Court below appears 10 have placed reliance for relying on this confession, if corroborated in material particulars, does not, in my opinion, constitute an authority for this view, the context in which the observations were made by Imam J. in the reported case seem to show that no such broad proposition was intended to be laid down, for, in reality, the other evidence against Ram Parkash was of so strong a character that the Court agreed with the conclusions of the High Court holding such evidence to be satisfactory and sufficient for the conviction of the accused. It was only in that background that the confessional statement was taken into consideration. Ram Parkash''s case, if I may-say so with respect, did not purport to strike a discordant note from the settled principles relating to the admissibility and effect of confessional statements made by co-accused persons. In this connection, it must never be forgotten that even when the Court takes it into consideration, such a confessional statement is a material of a very weak type, for the statement is not made in the presence of the accused persons and has not been subjected to cross-examination-factors which are of vital importance in our criminal jurisprudence.

Before parting with this subject I should like to point out to the learned Magistrate the importance of the instructions contained in High Court Rules & Orders, Vol III, Chapter 13, relating to confessions of accused persons. These instructions do not deal with a mere casual matter of form. They truly deal with a solemn matter of substance and call for a sense of responsibility on the part of the Magistrate regarding the confession to satisfy his conscience that the confession is truly voluntary and free from the vitiating defects against which the Legislature has expressed its clear anxiety to provide safeguards in the Indian Evidence Act and in the Code of Criminal Procedure. The police investigating agency in our country has not yet acquired the reputation of being proof against the temptation of attempting to secure confessions by questionable methods; the Magistrates recording confessions are therefore expected to devote due attention to all the safeguards provided for ensuring their truly voluntary character. In the case of a child like Karan Singh, it was accordingly incumbent on the learned Magistrate to have taken full precautions to satisfy himself that the child was making a true confession voluntarily and was not under the influence of whatever may have transpired between him and the police during his custody with them. In this connection the observation in Sarwan Singh Vs. The State of Punjab, , may be kept in mind. The judicial officers administering criminal law should also not ignore that in a civilized and free society, it is largely through the standards of the administration of criminal justice that the position of the liberty of the subject and of the rule of law is measured.

But even excluding the confession, in ray opinion, the evidence on the record is sufficiently cogent and convincing to justify the appellant''s conviction. It may be pointed out that Karan Singh''s case is not before us in this appeal.

As a last resort, the learned counsel argued that the offence proved does not amount to murder because there was no intention to kill and it was just by chance that the injury inflicted happened to be on a vulnerable part of Tirath Ram''s body. The argument has merely to be stated to be rejected on the present record. May be, that the appellant in a spirit of weckless bravado wanted to try his hand on the use of the knife on a vulnerable part of an innocent child, but that can by no means take the case out of the offence of murder. He has, however already been dealt with under the Bombay Children Act and, therefore, no question of any further leniency arises. It is, in my opinion, in the interest of the appellant himself that he spends some time in Reformatory School and later in the Borstal School so as to learn to live under a little more self-discipline and realize that in a civilized democratic society like ours, where all citizens are equal before law, the right that he claims for himself he must also yield and accede to all other fellow-citizens. It will also impress upon him that the life of crime in this Republic does by no means pay.

For the foregoing reasons this appeal fails and is dismissed.

D.K. Mahajan, J.

I agree.