State vs Kanbi Vashram Kanji and Another

Chhatpar, J.—This case has come before the High Court as the Additional Sessions Judge, Gohilwad, has convicted the two opponents - accused of offences u/s 369 and Section 302 read with Section 34 I. P. Code and sentenced them to one year''s rigorous imprisonment and to transportation for life respectively for the two offences and had ordered that as both the accused were under the age of 15, they be sent to a Reformatory School for a period of three years under the provisions of the Reformatory Schools Act 1897 instead of undergoing the sentences above mentioned. The Sessions Judge, Gohilwad, made a reference to this Court that arrangements should be made for sending the accused to a Reformatory School. But the Reformatory Schools Act has not been applied to the State of Saurashtra. A similar question arose in ''Criminal Revn. Appln. No. 36 of 1951 (A)'' and this High Court held that although the Reformatory Schools Act has been adapted by the State of Saurashtra, it has not yet been brought into force. The office has consequently referred this matter to the Court for setting aside the latter portion of the order of the Additional Sessions Judge about the accused being sent to a Reformatory School under the provisions of this Act.

While the case was being considered for this purpose, the learned Advocate General brought to our notice that this was a fit case in which we may, in the exercise of our extraordinary powers of revision, go into the correctness of the finding of the Additional Sessions Judge convicting the two accused, who are mere boys, one aged 12 years and the other aged 14 years. We consequently provided a pauper pleader for them and have gone into the case on merits.

So far as the question of the Reformatory Schools Act is concerned, the matter is concluded by a previous decision of this Court and the portion of the order relating thereto is consequently quashed.

We now go into the merits of the case whether this is a fit case in which we should exercise our power of revision, although no appeal has been preferred by the accused. That we have such a power to interfere has not been questioned by the learned Advocate General. Only such power should be exercised in rare cases of palpable or gross errors requiring our interference in the interests of justice.

The two accused were charged to stand their trial for offences under Sections 364, 369 and 302/ 34, Penal Code. In the trial was also joined a third accused named Kanbi Savji Kalyan, who is the father of the second accused Vashram Sava, and who was charge-sheeted u/s 201-474, Penal Code. They were committed to the Court of Session. The Additional Sessions Judge acquitted the third accused Shavji Kalyan and convicted the two opponents as above stated. The offence is in respect of kidnapping of a boy named Bhikha aged about 8 years with the intention of taking dishonestly some golden ear ornaments called ''Champva'' and ''Kokarvu'' and murdering the boy by throwing him into a well after appropriating the ornaments.

It was alleged that on 14-2-52 Bhika had gone to a morning school in his village. Two other boys named Lalji and Trikam had also gone to the same school. The deceased was then wearing these pieces of jewellery and this has been affirmatively proved by the evidence of both the father and the mother as also of the evidence of these two boys Lalji and Trikam who had seen Bhika wearing the jewellery in his ears. We, therefore, concur with the finding of the learned Additional Sessions Judge that the deceased was wearing the jewellery referred to in the case. While the deceased was at the school, he was induced by the two accused to leave it on the pretext of eating groundnuts. The deceased was given two pice for the purpose of purchasing groundnuts. Thereafter the two accused told the deceased that they should all go and eat berries in a field. All the three left and went towards the east of the school taking the road leading to the station and whereafter they turned to a road going towards Gadhda, from where they took the road leading to Keria nearby which is a Vadi or Rabari Bhara Ram, where there is a well.

The three boys sat there and ate the groundnuts and berries. While they were there, the deceased was relieved of the ear ornaments by the accused on some pretext and he then was induced to look into the well to see whether there was water in it, and while the deceased was doing so, the two accused gave him a push throwing him into the well which led to his being drowned. This is the story given by them in their confessions. Since the deceased did not return to the school, the other two boys Lalji and Trikam took his sachel containing his books to his parents. On being asked about the whereabouts of the deceased, the boys gave out that the deceased had gone in the company of the two accused. This information was received by the parents of the boy at about 11-30 A.M. As the deceased did not return home, the parents got nervous and began to make inquiries. They made inquiries from the two accused, as their names were already given to them by the other two boys Lalji and Trikam. The two accused denied any knowledge. The matter was reported to the police who also interrogated the two accused, but finding nothing incriminating against them, they released them.

On the next day early morning, the deceased''s body was found floating in the well. It was brought out of the well and it was found that the ornaments were missing. There were no marks of violence on the dead body. One of the persons, who took part in bringing out the body from the well was Keshubhai, who had gone into the well. He deposes that there were no ear ornaments on the dead body and the Panchatnama which was held some hours later does not show any ornaments on the body of the deceased. We are satisfied that when the dead body was taken out of the well, it did not have the ornaments. This disapperance of the ornaments worn by the deceased naturally led to suspicion of a crime and the police took the two accused under custody. The first accused Vashram Kanji who is aged about 12 years then pointed out the place of concealment of the ornaments which were dug out from the compound of his house from a depth of about 4 inches. This happened on 15-2-62 in the evening. The jewellery has been identified as that worn by the deceased.

The two accused desiring to make confessions, thereafter were sent to the Magisterial custody on 17-2-52. The confession of the first accused was recorded on 18-2-52 and that of the second accused on 19-2-52. The Magistrate recorded the usual statements in their confessions in order to ascertain whether the confessions were voluntary. He also warned them that they were not bound to confess and if they made them, the confessions would be used against them. But the learned Magistrate did not append at the foot of the confessions a memorandum in the form required by Section 164 (3), although in the middle of the confessions he had indicated that he had asked questions in order to ascertain whether the confessions were made voluntarily. There is nevertheless a formal defect in the memorandum at the foot of the confessions. The memorandum under each confession merely states that the confession was read over to the accused and was consented to and accepted by the accused and that the statements therein contained exact and true facts.

We will hereafter deal with the question whether this formal defect has any effect on rendering the confessions inadmissible in evidence or whether the defect can be cured as a mere irregularity by virtue of the fact that in the body of the confessions there is an indication that the Magistrate was satisfied that they were voluntary. Unfortunately, the Magistrate, has not been examined in the case, as we are of the opinion he should have been, when any defect in a confession is noticed by the Sessions Judge. Apart from the confessions, the prosecution has satisfactorily established as discussed above that the deceased was wearing, the jewellery in his ears which was found to be missing, when his dead body was found. The prosecution has also established that the- deceased was last seen in the company of the two accused. There is the evidence of the two boys Lalji and Trikam, who though children, have given their evidence before the Sessions Court with sufficient frankness to impress the Additional Sessions Judge with the truth of their evidence. They say that the deceased left the school in the company of the two accused and went towards the road going, to Keria.

There is some slight discrepancy between their evidence. Lalji says that only the first accused called the deceased and talked to him, while Trikam deposes that the other accused was also present but at a little distance. The discrepancy is not so material as to destroy their evidence. The learned Additional Sessions Judge was satisfied that these boys were speaking the truth. One Anr. witness named Raja Ganda deposed that he had seen the two accused in the morning of the day of occurrence outside the school premises. We agree with the finding of the learned Additional Sessions Judge that the deceased went in the company of the two accused taking the road to Keria, near which is the well in which the deceased''s body was found.

Then we have the evidence of the discovery of the ornaments from the compound of the first accused''s house from a place pointed out by him. They were evidently concealed. The first accused had special knowledge and therefore he must be presumed to have hidden them himself in the circumstances of the present case. In addition, we have an important piece of evidence of one Chhagan to whom the first accused had tried to sell these ornaments; but he refused to purchase them. He deposes that one Kanbi boy offered to sell him these ornaments and demanded Rs. 4/-. Whereupon he said that the ornaments may not be of gold, who would therefore purchase them for Rs. 4/-. Then Kanbi boy asked whether he would be prepared to pay Rs. 3/-; thereupon he asked the Kanbi boy whether he had stolen these ornaments from his house or from the village. This was denied. Untimately, he refused to buy them. This Kanbi boy was identified by this witness Chhagan as the first accused in the Court.

So the above salient facts are established that the deceased wore the jewellery, went with the accused in the direction of the well in the company of the accused and his dead body was found in the well without the jewellery. We may refer to a case decided by the Madras High Court. - ''In re. Ramudu AIR 1943 Mad 69 (B)'', which appears to be very much similar to the present case. In that case the deceased was not seen after the morning of 17-10-42. On 19-10-42 his dead body was found floating in a well. Except for the evidence that the two accused were seen following the deceased on the morning of 17th there was nothing to connect the accused with the murder except their possession of the article belonging to the deceased and the statements to the police which according to the prosecution led to the recovery of those articles. Both in the Committing Magistrate''s Court and in the Sessions Court the accused denied all knowledge of offence and asserted that they had made no confessions at all to the police as in the present case.

It was held that in face of the production of the articles the denials by the accused could not be believed and the Sessions Judge was therefore un-questionably right in accepting the evidence that the articles were recovered in consequence of the statements made by the accused, and that even if the statements themselves were ignored, the evidence that the two accused were seen following the deceased on the morning of the 17th taken with the facts that a few days later the articles which the deceased had been wearing were found in the possession of the accused, in default of any reasonable explanation, would lead inevitably to the conclusion that the accused were guilty of murder of the deceased.

We may also refer to Anr. decision of the Madras High Court in - ''Public Prosecutor v. Raju Naicken AIR 1938 Mad 806 (C). There the accused was charged with murder of a woman, and he had made a voluntary confession that he had committed the murder, and also produced within a short time after the murder, certain jewels which he said he had removed from the corpse. The confession though subsequently retracted was sufficiently corroborated by the production of the jewels and certain other evidence. The Sessions Judge however relying on certain discrepancies in the evidence acquitted the accused. On appeal by Government the High Court held that the evidence proved beyond the possibility of any reasonable doubt that the accused was guilty of murder and his acquittal was a clear miscarriage of justice.

In Re: Abdul Basha Sahib, also referred to by the learned Additional Sessions Judge, it was held that a mere fact of the deceased having worn jewellery before his disappearance and the fact that one of the accused handed over the missing jewellery from the hidden place was itself sufficient to raise a strong case of guilt against this accused. Two persons were charge-sheeted with the offence of murder of a woman whose corpse was found floating in a well and the jewellery worn by her was found to be missing. There were marks of injuries on the person of the deceased. The first accused had made a confession to the police and showed the place of concealment of the ornaments which were found after digging up a spot which was indicated by him. The jewellery was identified as that of the deceased. He also implicated the second accused. On appeal it was held that it was necessary to observe strictly the provisions of Section 27, Evidence Act by which the only portions of the information given by an accused which were admissible are those which relate distinctly to the facts discovered thereby; consequently statements by an accused which do not relate to aforesaid facts but involve other accused are inadmissible u/s 27 against the latter. It was also further held that where an accused is found guilty of the offence of murder, the facts that the other accused met "the first on the evening of the date of murder and knew the place where certain articles belonging to the deceased which she had carried with her on that fateful evening led to give suspicion against the other accused but were not sufficient to warrant his conviction either for murder or for intentional concealment of evidence. The present case is very much similar to the first case referred to above. In the present case there is the additional evidence that the two accused were last seen in the company of the deceased going in the direction of the well in which the dead body of the deceased was found.

We now come to the two confessions recorded by the learned Magistrate. They were attacked on the technical ground that they did not contain the memorandum at their foot as enjoined by Section 164. As observed by us in a recent appeal disposed of by us in the case of -''Koli Jera Jodha v. state AIR 1954 Sau 115 (E-F). Section 164 requires three things to be done: (1) that the Magistrate should explain to the accused that he is not bound to make any confession; (2) that if the confession is made, it may be used against him; and (3) the Magistrate must be satisfied that it is voluntary and for this purpose he has to put questions to the accused and give him sufficient time to be free from any undue influence while in police custody and to reflect and make up his mind whether to confess or not. The Magistrate is required to state his opinion about the confession being voluntary in the form of a memorandum at the end of the confession. In the present case the memorandum merely records that the confessions were read out and fully explained to the two accused, who assented and admitted the truth of the facts contained therein. There was no mention that the Magistrate was satisfied that the confessions were voluntary.

We are of the opinion that the Magistrate should have been called in evidence to make good this deficiency. But fortunately, we have in the body of the confessions sufficient indication that the Magistrate was in fact satisfied that the confessions were voluntary as he has put several questions to the accused and mentioned that they were so put for the purpose of his satisfaction that the confessions were voluntarily made. Although the requirements of Section 164 must be strictly complied with, in the circumstances of the present case, we are of the opinion that, this defect is formal and not material and we are satisfied from reading the confessions as a whole-that the Magistrate was in fact satisfied that they were voluntary. We might refer to a ruling of the Lahore High Court cited by the learned Advocate General in - ''pratap Singh v. Emperor AIR 1925 Lah 605 (2) (G), wherein was held that where the memorandum at the foot of the confession recorded does not confirm with the form as laid down, the defect is curable if it is of form and not of substance. In the present case we are of the opinion that there was no defect of substance so far as the requirements of Section 164 are concerned but of mere form. Therefore although in ordinary case we would have desired the Magistrate to have been examined to set at rest any doubt by his evidence, the want of such examination does not render the confessions bad.

So far as the merits of the confessions are concerned, Mr. Bhatt the learned advocate for the accused has argued that they were exorted by maltreatment and beating by the police. For this he relied upon the mere fact that one of the accused was sent to a hospital and had remained there for some hours. His allegation that the accused had vomited blood has not been brought out in evidence. The doctor who has been examined in the case has not been cross-examined as to any marks of beating or other ill-treatment or vomiting of blood. The version of the prosecution was that this accused was complaining of giddiness and therefore he was taken to the hospital. This is not unnatural as the accused are mere boys and their being involved in such a serious crime might very likely have brought about nervousness and giddiness. This does not prove that there was any ill-treatment by the police.

The learned Additional Sessions Judge has come to the conclusion that the confessions were voluntary although they have been retracted before the Court, where they have denied any knowledge of the incident. We agree with the opinion of the learned Additional Sessions Judge. But we have nevertheless to see as a rule of prudence whether the confessions have been corroborated in some particulars by other independent evidence. In this respect, we are affirmatively of the opinion that they are so corroborated. The incidents recorded in the confessions have been proved by independent evidence, which has been discussed above. The first accused at whose pointing out, the jewellery worn by the deceased was recovered has also mentioned in his confession of his having buried this jewellery. We are therefore satisfied that the confessions are corroborated in material particulars by independent evidence in the case which evidence even by itself is sufficient to establish the crime relying upon the Madras cases discussed above.

Lastly, Mr. Bhatt has tried to distinguish the case of the second accused from the first in as much as no articles have been found from the possession of the second accused. But we are of the opinion that both the boys were acting in concert and although the confession of the first accused implicating the second accused has very little evidentiary value by itself (Vide - L.S. Raju and Others Vs. The State of Mysore, nevertheless the confession of the second accused himself taken with the corroborative evidence referred to above, establishes the crime of murder against him sufficiently. We therefore see no reason to interfere with the finding of the learned Additional Sessions Judge.

The two accused are respectively aged 12 and 14 years. The first accused appears to us to be very young indeed. We are extremely reluctant to send them to jail where they might have the company of hardened criminals leading to their morals and their outlook on life being seriously impaired. Unfortunately, the Reformatory Schools Act is not in force. The Saurashtra Government has not as yet established any school in this State nor made any arrangement with the neighbouring State of Bombay in this connection. We are therefore constrained to confirm the sentence imposed by the learned Additional Sessions Judge. But at the same time we would recommend to the Government to consider the case of these two boys for the purpose of commutation of their sentences under the powers reserved to Government under the Code of Criminal Procedure.

We are very much grieved to observe that juvenile delinquency is on the increase. Several cases of offences involving violence by boys have recently come to this Court. This High Court had moved Government to take up legislation concerning juvenile offenders as far back as in 1949. There are the Children''s Act, the Bombay Borstal Schools Act and the Reformatory Schools Act on the subject. Cases like the present show the urgent necessity of applying these Acts and setting up institutions where juvenile offenders may reform and be good members of the society instead of being sent to prison to consort with ordinary criminals and be in the cramping and depressing atmosphere of prison life likely to affect seriously their immature and impressionable minds.

A copy of this judgment may be sent to Government for necessary action.

Baxi, J.

I agree.