Nanhkoo Mahton vs Emperor

Rowland, J.—The appellant Nanhkoo has been convicted u/s 211. I.P.C. by the unanimous verdict of a jury on a finding that an information laid by him on 25th May 1935 before the Assistant Sub Inspector at Mokamah, which he confirmed the same evening before the Sub-Inspector of P.S. Sarmera was false, and by making it he falsely charged and instituted criminal proceedings against Munshi Mahton and Sheocharan Nahton.

The child of the accused an infant of eight months died on 24th May 1935 in village Govindpur, P.S. Sarmera but the accused went first to police station, Mokamah where his statement was taken in the form of fardbeyan by the Assistant Sub Inspector who after taking down the statement sent the informant to the Sub-Inspector of Sarmera. The latter officer read the statement to Nanhkoo who confirmed it and the officer then drew first information report on the basis of it. The allegation was that the two accused had come to the house of Nanhkoo in his absence, had thrown down his wife causing the fall and death of the child by injury to the head and had snatched away the hasuli from the neck of his wife. The hasuli was described in detail, mention being made of an inscription of the name of the informant engraved upon it. On investigation of the case the Sub-Inspector came to the opinion that it was wilfully and maliciously false, and the Court of Session has given effect to that view of the facts. The only point of law that could be taken in connection with the question of fact was that the Court was wrong in allowing a statement of accused made on 29th May to go to the jury. This was a statement made by him before a Magistrate who recorded it u/s 164, Criminal P.C. The Magistrate did not caution Nanhkoo in the manner prescribed for warning a confessing accused and did not record the statement in the form prescribed for recording confessions.

The answer to this argument is that at time Nanhkoo was not an accused person but a witness and the statement which the Magistrate recorded was not a confession It was, however, an admission and as such relevant and admissible in evidence u/s 21, Evidence Act, subject to being properly proved Besides the record of the statement we have the oral evidence of the Deputy Magistrate who recorded it. Therefore the admission in evidence of this statement was correct in law. In this statement the accused said that as far as he knew nobody killed his daughter, that is to say he withdrew all the charges he had preferred on the 25th. Incidentally he denied having made those charges before the Police. Then it is suggested that as he reported the incidents not as an eyewitness but as having heard of them from his wife, there was no evidence on which it could properly be held that he made the report in bad faith or that he did not make it in good faith relying on the statement of his wife. The wife naturally has not been examined as a prosecution witness. Whether the accused could have made the report which he did in good faith, in the circumstances of the particular case, was a question of fact for the jury, but we have noticed that the first information report of the accused contains a mention that he had seen with his own eyes injury on the head of the dead child, and the doctor found no such injury. Therefore on the facts there is nothing to be said against the verdict. It is not based on inadmissible evidence.

The next point taken was that by the statement made by Nanhkoo before the Assistant Sub-Inspector at Mokamah he cannot be said to have instituted a criminal proceeding because the Assistant Sub-Inspector at Mokamah was not an officer competent to investigate the alleged offence said to have been committed in the jurisdiction of another police station. Reference has been made to the Pull Bench decision of the Calcutta High Court in Karim Buksh v. Queen-Empress (1890) 17 Cal 574 which was followed in this Court in Parmeshvar Lal v. Emperor 1925 Pat 678. The law which is well settled is that the laying of an information which the police officer has power to investigate and the causing of that officer to investigate the information amounts to institution of criminal proceedings. There is no doubt that the accused has committed the offence charged against him though from one point of view it may he said that the offence was not completely committed at Mokamah police station but was committed partly at Mokamah and partly at Sarmera. But this will not be of any assistance to the accused because the charge refers to the lodging by him of an information "before A.S.I. Gauri Shankar Lal and later also before S.I. Syed Abdul Hakim." Thus the proceedings are said in the charge to have been instituted by the laying of the information at Mokamah coupled with the repetition of it in Sarmera which correctly represents the state of things.

Then it is pointed out that the place of commission of the offence is in the charge stated as Mokamah and not as Sarmera. It might have been desirable to mention both places, but the accused cannot have been misled in his defence and the omission to name Sarmera does not affect the conviction. Nor is it of any avail to the accused to contend that the proper person to complain against him was the Sub-Inspector of Sarmera rather than the Assistant Sub-Inspector of Mokamah. As a matter of fact, the Sub-Inspector of Sarmera bad at first submitted a report for the prosecution of Nanhkoo u/s 211 on which the Magistrate directed that the Assistant Sub-Inspector of Mokamah might present a complaint. This was done. So that in fact the Magistrate had before him two complaints, one by each of the officers and the case could not be more complete. Therefore all the objections urged against the conviction have failed.

Finally it is said that the sentence of three years'' imprisonment is excessive. The age of the accused as noted by the Magistrate is 60 years and the evidence as to his conduct about the time of the death of his child seems to indicate that he was in a very disturbed frame of mind. After his arrest he was placed under medical observation, but was found not to be insane. But there is evidence that immediately after the death of the child he accused one of his co-villagers of being a witch and thereby having caused his child''s illness and death.

A sentence of two years rigorous imprisonment would, in my opinion, be sufficient to meet the ends of justice, and I would, while affirming the conviction reduce the sentence to this amount.

Varma, J.

I agree.