Mt. Ram Sakhia vs Emperor

Varma, J.—The petitioner, who is a married girl of thirteen or fourteen, was serving the Court Sub-Inspector of Police one Sudhir Kumar Sinha, (P.W. 1), as a maid-servant. Sudhir Kumar used to sleep in a hut after the earthquake and used to carry the valuables from the house to the hut and from the hut to the house as he himself moved from one place to the other. It is alleged by the prosecution that on 8th February 1934, when Sudhir Kumar was absent from hut on account of Lachmi puja which was being performed inside the quarters, a cash-box containing ornaments was removed. The removal was discovered at 9-30 p. m. and Ramsakhia, the petitioner, her father and mother were summoned, but they denied any knowledge of the box. Information was then sent to the thana on the strength of which a search was made in the house of Jangli the father of the petitioner, and from underneath the ground of that house the cash-box was recovered.

It was mentioned here that Jangli gave up residing in his house which was affected by the earthquake and kept its door looked up. After recovery the box was found unopened and nothing was missing therefrom.

The defence was that the Court Sub-Inspector of the Police was annoyed with Ramsakhia and her mother because they had left his service as desired by Jangli who had forbidden his wife and his daughter Ramsakhia to work at Sudhir Babu''s place. The rokhsati of Ramsakhia was to be performed, but the complainant, the Court Sub-Inspector did not like the idea of Ramsakhia going away on rokhsati and so withheld the pay for which the petitioner and her mother left his service one day before the occurrence. It is pleaded that the Court Sub-Inspector being displeased implicated the petitioner and her parents falsely in this case.

Jangli''s defence need not be repeated here because it is not necessary--Jangli not being a petitioner before this Court. The Sub-divisional Officer of Barh, on 10th February 1934, recorded the statement of the petitioner Ramsakhia. The trial Court has referred to this statement as the confession of the petitioner.

u/s 164, Criminal P.C., record was made of another statement made by Burhwa (a boy of seven), the brother of the petitioner. The trial Court has found on the prosecution evidence that the box containing ornaments was removed from the house of Sudhir Kumar Sinha, (P.W. 1); that this box was found underneath the ground at a place in the house of the petitioner''s father, Jangli. The question with which I am concerned here is whether on the materials before the Court it could be held positively that it was Ramsakhia, the petitioner, who removed the box containing ornaments with a dishonest intention. The trial Court has dealt with the case in the following terms:

The accused Ramsakhia confessed her guilt. Her confession was recorded by the S.D.O. here (P.W. 9). She had stated therein that she removed the box containing the ornaments etc, from the hut of P.W. 1. Although she states that she did not remove the box with intent to commit theft yet she removed it in joke. There is no reason why she, a maid-servant would remove the box in joke. In any case the removal of the said box from the hut of P.W. 1, S.K. Sinha, is admitted by her. Her brother P.W. 2 also testifies to the fact that it was accused Ramsakhia who removed the box from the hut of P.W. 1. The prosecution evidence thus establishes the fact that accused Ramsakhia committed theft of the said cash-box from the hut of P.W. 1, her master. The charge u/s 381, I.P.C., has been brought home against her.

I have quoted the above passage from the judgment of the trial Court to show exactly the pieces of evidence upon which the learned Magistrate relied for the purposes of holding that the charge u/s 381 had been brought home to the petitioner. It is clear that the learned Magistrate has relied upon two things: (1) the alleged confession; and (2) a statement of prosecution witness No. 2. I have to examine if the confession is a proper confession correctly recorded and whether it is admissible in evidence and can be used against the petitioner Ramsakhia. In answer to the first question: What statement do you want to make? Kia bayn karne chahateho.

The answer is: "Ham hassi se Court Babu ke bus la gai; bux bandh tha:" I removed in joke the box of Court Babu; it was closed. Now, it appears that from the beginning she is not admitting her dishonest intention in the matter which is an essential ingredient in Section 379. I am therefore not prepared to hold that this is a confession, although it has been used as such by the trial Court. In recording confessions it is important that the formalities of law should be strictly followed. Section 364, Criminal P.C., mentions these formalities. Clause (1) of this section provides:

Whenever the accused is examined by any Magistrate, or by any Court other than a High Court established by Royal Charter, the whole of such examination, including every question put to him and every answer given by him shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English and such record shall be shown or read to him or, if he does not understand the language in which it is written shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

From the deposition of prosecution witness No. 9 the Sub-divisional Officer of Barh, who recorded this So-called confession, it appears that there were certain facts which were mentioned by the petitioner which do not find place in the record made by him. His statement in cross-examination is:

I did ask her about her motive in making the confession. She wanted to be let off as she thought it was her first offence. I did not record her motive in the statement (Ex. 4) but I remember it.

In the face of this deposition one cannot be sure that Ex. 4 is a complete record of all that the petitioner had said. The decision in Bhowanidas Ramgovind v. Pannachand Lachmipat 1925 Cal 801 and Sarat Chandra Ear v. Emperor 1925 Cal 821, make it clear that the non-compliance with the provision of Section 364, Criminal P.C., is fatal to the prosecution case, although the cases in which the principle was laid down were dealing with statements u/s 342, Criminal P.C. So unless there is some strong evidence to corroborate it, I would hesitate to rely upon the statement which is not a confession either in form or in substance.

Apart from the fact that the box was found in her father''s house, the only evidence referred to is the statement of Burhwa, the brother of the petitioner, who says:

My sister, accused Ramsakhia (identified) took away this box (Ex. 1) from under the khatia in the hut of Court Babu (meaning P.W. 1). It was in the evening when puja was being performed in the quarters. She removed the box concealed under cloth to our house at Mullahi. I went with her.

In cross-examination he says:

I did not say before police that I went to my sister Ramsakhia,

and the very last sentence of his cross-examination runs:

I did not go to my sister nor did I go back with her to my house.

The petitioner Ramsakhia and Burhwa live with their father and mother all of whom were accused. According to the record Burhwa is aged about seven years. It is not likely for a child of that age to distinguish between things which he has heard and those which he has seen; and, when there is a clear indication of inconsistent statements in his evidence, I would not attach much importance to his testimony as a piece of evidence implicating the petitioner. I should observe that it does not appear that any attempt was made to test the capacity of this witness to give his testimony before his deposition was actually recorded. It is not illegal to examine a witness of tender years; but as laid down in the case of Panchu Choudhry v. Emperor 1923 Pat 91, by Bucknill, J.:

It is undoubtedly of very great importance that when the evidence of a child of tender years is adduced, the Judicial Officer should, for the sake of precaution, ascertain, as a preliminary measure, by means of a few simple questions, whether the intelligence of the child is such that (whether sworn or not) it is capable of giving testimony which is patent of credit; and it is certainly desirable that something should, at the commencement of the record of evidence of the witness of this character, be entered to show that such a test has been in fact made.

I would therefore on the materials upon which the trial Court has actually relied for the conviction of the petitioner, I am of opinion that the evidence against the petitioner is not of such a convincing nature as to deprive her of the benefit of the doubt. There was one witness examined on behalf of the defence and as the appeal has been summarily dismissed by the learned Sessions Judge I had to go through the whole evidence myself. Looking at the evidence of the defence witness No. 1, I find that apart from the two statements referred to by the trial Court this witness also gives the story of how Burhwa was produced and examined. The learned Magistrate has made no reference in his judgment about that part of the deposition and the only ground for refusing to believe the evidence of defence witness No. 1 is that she and Jangli live in the common angan.

The trial Court itself had not only relied upon the evidence of P.W. 1, but also upon that of P.W. 3 who happens to be his brother. Two separate standards should not be set up for testing the veracity of the defence witnesses and the prosecution witnesses. This I notice has been done in the judgment of the trial Court. For the reasons set out above I hold that the conviction of the petitioner u/s 381 cannot stand. I would therefore allow the application set aside the conviction and sentence passed against the petitioner and direct that she be acquitted and released from bail.