State vs Mt. Khimia

Shinde, C.J.—This case has been referred to me u/s 80 of the High Court of Judicature Act No. 8 of 1949 as there is a difference of coinion between Dixit and Khan JJ., who constituted the bench that heard the case.

The accused Mst. Khimia was tried by the Sessions Judge Guna for offences under Sections 302, 307 and 309 I.P.C. The learned Sessions Judge acquitted the accused of offences under Sections 302 and 307 and convicted her of an offence u/s 309 I.P.C. and imposed a sentence of six months simple imprisonment. Against this decision Mst. Khimia filed an appeal No. 87 of 1954 for setting aside her conviction and sentence u/s 309 I.P.C. and the Government filed an appeal No. 24 of 1955 under Sections 417 Code of Criminal Procedure for setting aside her acquittal under Sections 302 and 307 I.P.C. These appeals, came up before a Division Bench consisting of Dixit and Khan JJ. Dixit J. and Khan J. dismissed the appeal of Mst. Khimia. They also agreed that the order of the Sessions Judge Guna acquitting the accused u/s 307 I.P.C. be set aside and that convicting her of an offence u/s 307 I.P.C. she be sentenced to two years simple imprisonment and a fine of rupee one.

With regard to her acquittal u/s 302 I.P.C. there is a difference of opinion between the learned Judges. Khan J. is of the opinion that the order of the Sessions Judge acquitting the accused u/s 302 I.P.C. be confirmed while Dixit J. is of the opinion that allowing the appeal of the Government, the accused be sentenced to transportation for life. Consequently this case has been referred to me.

Before considering the case on its merits it is necessary to give the facts as alleged by the prosecution in brief. Ganga the deceased and his wife Khimia the accused, were not on good terms and the deceased used to threaten her that he would take unto himself another wife. On the night of May 23, 1954, when Ganga was sleeping on the Chabutra in the Bakhal, Khimia killed, her husband with an axe and thereafter going to the village well with her two children, Gulab aged 4-5 years and Gone aged 5-6 months, jumped into the well. Attracted by the cries of the children, the villagers carne to the well and rescued all the three On these facts the accused was challenged u/s 302 I.P.C. for the murder of her husband u/s 307 I.P.C. for attempting to kill her children and u/s 309 for attempting to commit suicide.

From the facts given above, it is evident that all that I have to consider is whether the evidence on record warrants the conviction of the accused under suction 302 I.P.C. or not. The evidence as analysed by Khan J. is as follows:

(1) The statement of persons to whom the accused confessed her guilt on being taken out of the well.

(2) The depositions of Bhamari P.W. 4, Nano P.W. 5, Khusalo P.W. 6, Daryao P.W. 12 Kashi, ram P.W. 9, and Padam Singh P.W. 7.

(3) Statement of the accused before the Committing Magistrate.

To this, the evidence of the conduct of the ac cused after death of her husband and of the fact that at the time of occurrence, there was no one in the house except the deceased, the accused and the children, be added.

The statement of the persons to whom the accused is alleged to have confessed her guilt on being taken out of the well has been, and in my judgment rightly, disbelieved by the Sessions Judge and by my brothers Dixit and Khan JJ. Apart, from the fact that the statements regarding the Extra Judicial Confession are varied, the. First Information Report makes no mention of this confession. Munshi Khan P.W. 1 states in his deposition that he was present when Khimia confessed her guilt. He also states that he was sent to the police-station Basoda to lodge First Information Report. Yet the First informal tion Report makes no mention of the fact that they accused made a confession that she killed her hus - band. On the contrary, the First Information Report states as follows:

lc yksx xkao ds e; eqd�e ds mlds ?kj ys x;s o nksuksa cPps � mlds � xaxk ds HkkbZ � Hkejk � ds ;gka igqapk fn;s gS A

eqn�e ineflag o xkao okyksa us xaxk dks ?kj esa ejk ns[k dj dgk fd vkSjr us vius vkneh xaxk dks dqYgkMh ls xnZu esa ekj dj ekj Mkyk vkSj dq, esa fxj iM+h vkSj cPpksa dk Hkh ys fxjh] xkao okys ?kj esa ns[kus x;s Fks A

eqd�e ine flag us gesa fjiksVZ djus Fkkus esa Hkstk gS os dgka gS fd xaxk dkNh dks mldh vkSjr us xjnu esa dqygkM+h ekj ds ekj Mkyk gS tks ck[kj esa iM+k gSa A ekjus ds okn vius cPpksa dks ysdj dq, esa fxjh Fkk rks fjiksVZ djrs gS A

If the accused had made any concession on that certainly would have been no (sic) the first Information Report. P J R. (sic) indicates that the villagers who went to (sic) house, seeing Ganga dead, surmised that the agreement have killed him with an axe.(sic) in her statement before the commit magistrate (sic) that she did not tell any body (sic) her husband when she was taken out of the (sic) but that she confessed her guilt after In police came on the spot.

In the statement before the commiting Magistrate, although She has confessed her guilt, she did not support the prosecution story that she confessed the guilt to the person who rescued her from the well. In these circumstance the story of the prosecution regarding the extra-.Judicial-confession is not borne out by the evidence.

Bhamari P.W. 4 Nano P.W. 5, Khusalo P.W. 6, Daryo P.W. 12, Kashiram P.W. ) and Padamsingh P.W. 7 depose to the fact, that the relations between the husband and the wife were strained. Bhumari p.w. was lying in the Bhakhal of Ganga deceased in the house of Sharma. She states In her deposition that, Ganga and Mst. Khijala used to of ten quarrel, she also: tales that Ganga had returned on the date of occurrence from Ahmadpur. Further she mentions that on some previous date Ganga had gone for the marriage in the house of his sister which was also attended by her and Daryao. This part of deposition has been misread by the learned Sessions Judge. Commenting on the statement of Mst. Bhamari, the learned Sessions Judge says that M.-t. Bhamari had gone to Ahmadpur with Ganga and Daryao on that occasion.

She is referring to some other previous incident. Another reason given by the learned Sessions Judge to disbelieve the statement of Mst. (sic) is that, there was no reason why Bhamari should not have entered the house when she returned from the house of Amritsingh when the door was not chaimed from inside and was only closed. Bhamari no doubt states in her deposition that when she returned from Amritsingh, she called Ganga, but having received no response, she went to Mst. Nano, Mst. Nano P.W. 5 supports the statement of Mst. (''Bhamari that Bhamari had been to Amritsingh on the night of the occurrence. She further states-

Hkejh ;g dgdj esjs ;gka vkbZ fd xaxk ugha cksyrk gS A rw py &

This statement also supports the deposition of Mst Bhamari that as no response was given to her call, she went to Mst. Nano. This statement of Mst. Bhamari may or may not be true. It is possible that she may have entered the house and seeing Ganga dead might have run back to the house of Mst. Nano, for fear of being accused of the murder of Ganga. She might be concealing the fact that she entered the house. But that alone would, not make the entire testimony of the witness unreliable. There is not even a suggestion that Mst. Bhamari might have killed Ganga. Under these circumstances, I see no reason to disbelieve the testimony of Mst. Bhamari regarding the strained relationship between Ganga and his wife.

The learned Sessions Judge has also disbelieved the testimony of Daryao P.W. 12. He has given two reasons for doing so. One is that it was not necessary for Daryao to go to Bhilsa to buy salt and oil, and the second is that Bhamari''s statement that Ganga, Daryao and she herself had gone to the marriage of Ganga''s sister contradicts the testimony of Daryao that he went to Bhilsa on the morning of the day of the occurrence to buy oil and salt. No question has been asked as to whether oil and salt is available in the village Nateran or not. Besides, Daryao may have had some other work in Bhilsa. In any case, as no question has been asked as to why he went Bhilsa to buy oil and salt, no adverse inference can be drawn.

As far as the contradiction is concerned, there is actually no contradiction, as already stated above, the learned Sessions Judge has mis-read the statement of Mst. Bhamari P.W. 4. The marriage which was attended by Ganga, Daryao and Bhamari, took place some time before the day of occurrence. The reasons given for disbelieving the statement of Daryao, therefore, are not tenable. Daryao states in his deposition that about three years ago, a Pan-chayat was called for arranging a separation between Ganga and his wife. This clearly indicates that the relations between the husband and the wife were not happy. The next witness is Mst. Nano P.W. 5. She states that Ganga and Khimia used to often quarrel.

Mst. Khusalo P.W. 6 states that on the day of occurrence she went to the house of the deceased to get her weight and found Khlmla sad and worried. On enquiry she told her that her husband did not want to keep her. Kashiram P.W. 9 deposes that he participated in the Panchayat called by Ganga. He also deposes that although an agreement was drawn, Khimia refused to sign it. Padamsingh P.W. 7 is not of much assistance to the prosecution to prove that the relationship between the husband and the wife was strained. From the statement of Bhamari P.W. 4, Nano P.W. 5, Khusalo P.W. 6, Daryao P.W. 12 and Kashiram P.W. 9 it appears that the relationship between Ganga and his wife was strained. The accused Mst. Khimia stated before the Sessions Judge that she did not know why these witnesses were deposing against her. There is, therefore, not even a suggestion that the evidence of these witnesses comes from a tainted source. I, therefore, see no reason to disbelieve the, testimony of these witnesses.

Next we have to consider the statement of the accused before the committing Magistrate and the weight to be attached to the said statement. The learned Counsel for the accused has referred, me to Tulsiram Kanu Vs. The State, , Aher Raja Khima Vs. The State of Saurashtra, , to support his contention that as judicial lock-up and police lock-up are not separate, pressure must have been brought to bear upon the accused to make the statement, which she did, before the committing Magistrate, hence the statement should not be relied upon. It may be stated at once that Tulsiram Kanu Vs. The State, and (S) Aher Raja Khima Vs. The State of Saurashtra, , deal with confessions. In Tulsiram Kanu Vs. The State, , Kania C.J. observed as follows:

In our opinion the confession of the Appellant recorded by the Magistrate in this case does not, deserve even to be looked at. The Magistrate was told by the Appellant that he was (sic) portly before he was sent to the Magistrate on 9th November and he was also offered an inducement that if he made the confession he would he let off lightly when the Magistrate thought orgiving the accused time to think over the matter for hours the magistrate should have taken care to see that he was not left in police custody.

On the other hand, as noticed above, he was left in the magisterial lock-up which was in charge of the police. Thereafter one is left only to con-lecture What happened to the accused during those 24 houres The fact that he was taken to the Magistrate by an orderly on 10th November does not proved that the Appellant had remained free from police influence. In our opinion, the consion recorded under such circumstances could not be re-garded a free;and voluntary confession at all.

Again in (S) Aher Raja Khima Vs. The State of Saurashtra, , Bose J. made the following observations:

Now the law is clear that a confession cannot be used against an accused person unless the court is Satisfied that it was voluntary and at the stage the question whether it is true or false does it is abhorrent to our notions of justice and fair play and is also dangerous, to allowed, man to be convicted the strength of a confession unless it is made voluntarily and unless lie realises that anything he says may be used against him and any attempt by a person in authority to bully a person into making a confession or any threat or "Coercion -would at once invalidate it if the fear was still operating on his mind at the time he makes the confession if it would appeal to him reasnable for supposing that by making, it he would gain any advantage or avoid any evil of a temporal natur in reference to the proceedings against him". (vide para 11)

These observations it is clear that these remarks relate to confessions and not to a statement u/s 203 and admitted in evidence u/s 287 of the Code of Criminal Procedure. Confessions are recorded u/s 165 Of the Code of Criminal Procedure but they are admissible only If they are in conformity with the provisons of Section 24 of the Evidence Act. The object of the statement recorded u/s 209 is to enable the accused to explain the circumstances in evidence against him

The object not to record a confession. The accused is at liberty to avail himself of the opportunity given u/s 209. He may explain or he may not. In the course of this explainnation if he confesses his guilt, that will be an evidence against him because statements made before the committing Magistrate, if duly recorded, as are to be read as evidence u/s 287 of the Code of Criminal Procedure. In Mosaheb Dome v. Emperor AIR 1940 Pat 14 (C), Rowland J. observed as follows:

That admission is evidence u/s 287 Code of Criminal Procedure and in face of that admission, that the result of the trial was affect-misdirection to which I have referred." Again in Samarendrasingh v. Emperor AIR 1948 Oudh 99 (D) Kidwai J. of the Oudh Chief Court observed as follow

As to oral statement in the Court of the magistrate it is to be noticed that they were not recorded fled by the committing Magistrate as, confessions formalities required by Section 164 Code of Criminal Procedure they were merely recorded in pursuance of the directions given by Section 342, for giving the accused an opportunity of explaining any circumstances which might appear against them under the provisions of Section 207 Code of Criminal Procedure such statements shall be tendered by the prosecutor and read as evidence. Thus even though the statements were withdrawn in the Court of sessions they nevertheless remain as evidence in the cases to be considered along with other evidence.

It is clear from these decisions that the statements recorded by the Committing Magistrate are to be read as evidence u/s 287 Code of Criminal Procedure. Of course the weight to be attached to the statements made by the accused before the committing Magistrate will depend upon the quesi tion whether it is reliable or not. In other words the test to be applied is the same as in the case of witnesses.

The learned Counsel for the accused con-tended that as the accused was in a judicial-lock up, which is not separate from the police lock-up the police must have exercised influence over her consequently the statement made by her before the committing Magistrate is not a reliable piece of evi-dence. This argument, though specious, has very little substance. Before the learned Sessions Judge the accused was asked whether she made the statement before the committing Magistrate. To that she replied that she had no knowledge. But the did not complain that the statement was made on account of any inducement, threat or coercion-by the police. To say therefore that the statement before the committing Magistrate must have been made under he influence of the police is to rely upon mere conjectures. In Rughuvarsingh v. The State AIR 1955 MP 43 : Madh. B. L R 1935 Cri. 515 (E), a Division Bench of this Court held as follows:

...Under Section 287 the examination of the accused duly recorded by or before the Committing Magistrate has to be read as evidence. It cannot be brushed aside on the mere suggestion without any more of the accused person that he made the statement at the instance of police or on account of ill-treatment by the police. In order to hold that the statement made by the accused before the Committing Magistrate was at the instance of the police, there must be either intrinsic evidence in the statement itself to show that it must have been made on account of police pressure, or the accused must show by evidence that he made it under threats and duress of the police.

This in my judgment, is a sound proposition, of law. Applying this principle laid down by the Division Bench I find that not only that there is no in trinsic or extrinsic evidence of any threat or duress but there is not even a suggestion by the accused that any threat or inducement was given by the police. In these circumstances the argument put forward by the learned Counsel for the accused has no substance.

The learned Counsel for the accused next contends that the question put by the. Committing Magistrate savours of the nature of cross-examintion: consequently the replies to these questional should not be taken into consideration. In supports of this proposition the learned Counsel referred to a Bihari Singh Madho Singh Vs. State of Bihar, Tahsinuddin Ahmad v. Emperor AIR 1940 Cal 250 (G) & Emperor Vs. Kuppammal, The object of examination u/s 209 is to give an opportunity to the accused to enable him to explain any circumstances appearing in the evi dence against him. Consequently unless there,is a some evidence against the accused, the Magistrate is not justified in asking a question to the accused The Magistrate is not entitled to cross-examine the accused. In Tahsinuddin Ahmad and Others Vs. Emperor, a Division Bench of the Calcutta High Court held that the Section 342) was never intended for the purposes of cross-examining the accused or for filling up the gaps in the case of prosecution Consquently the seventh question put by the Committing Magistrate was not justified. This question runs as follows:

D;k rqeus vius ifr xakx dks dqYgkMh ls xnZu ij ekjdj dry fd;k \\

No witness has deposed to this fact. Besides the question put is of the nature of the cross-examina-tion Therefore the Magistrate should not have asked this question. But even if this Question is left out of consideration, there are other statements made-by, the accused which amount to admission. The last, question put by the Committing Magistrate was whether she desired to say anything more. The answer given by the accused is as follows:

eSaus tc jkthukesa ds vaxwk ugha fd;k rks xaxk us eq>s ckgj fcBkdj rkyk j[kk A esjk tsB esjs ek;ds ys x;k fd ge ugha j[krs A rks esjs Hkb;k us dgha] ugha j[krs rks eSa D;k d:a Hkxk nks A ifgys dgrs rks ifgys gh ys tkrs gS A HkbZ;k ds dgus ls fQj xaxk us j[kyh A Hkb;k cksyk gekjh cfgu yM+s rks fQj ys tkosaxsA xaxk us fQj eq>s ekj ihV dh A eSaus Hkb;k dks [koj Hksth A Hkb;k vk;k rks eq>s ml ds lkFk igqpkbZ ugha A NksVk eksMk tc isV esa Fkk rc eq>s Hkxkus yxs A eSaus dgk eSa vc dgka tk�a A eksMk vkB fnu dk gqvk rc fQj Hkxk nh A fQj esjs tsB vkdj ?kj ys x;k A dka''khjke o nhxj iapksa us gesa lkeku ckVdj vyx dj fn;k A fQj esjk tsB esjs ij ls pht oLr ys tkos esa yMwa rks esjk /kuh eq>s gh ekjrs Fks] esjk /kuh''kknh esa x;k Fkk A m/kj tsB us ckr dh fd eSa ub;j ys pyrk gwa A esjs /kuh ls dgka rw j[k ys A esjk /kuh oksyk gka rsjs uke ls j[k ywaxk A eSaus viuh /kuh xaxk ls /kj vkus ij iqNh rks mlus cb;j dh ckr gksuk crk;k A eSaus dgh esa ugha j[kus nwaxh A mlus dgh eSa rks d:axk] rw tks djuk gS lks dj A eSaus dgk eq>s tks djuk gS lks djds jgwaxh A exj tk�axh] ekj Mkywaxh A mlus eq>s jksVh dh Hkh ml jkst ugha iwNk A mlus [kk yh A eq>s xqLlk v;k rks eSaus ekj Mkyk A

This statement appears to be a perfectly straight forward, account of what must have happened, she made the statement of her own accord. There was no, need for her to make the statement. If this statement be believed there is no doubt that accused guilty of murder. As already stated, there is no intrinsic or extrinsic evidence to how that act pressure was brought by the police. The above statement made by the accused was not the result of any cross-examination besides the statement fits in with the conduct and the circumstantial evidence as will be seen later. Under there circumstances see no reason to doubt the veracity of the statement.

The conduct of the accused at the time of the murder is particularly significant in this case. If Ganga had been killed by some one else, the natural course for the accused to follow would have been to raise a cry and to show the sign of grief of the death of her husband. There is not even an of Evidence to show that she either raised a cry or mourned the loss of her husband. From the evidence it appears that she took her two children to the well and jumped into the well with them This clearly indicates that having killed her hus band she wanted to put end to her life and also kill her children.

Besides, at the time of nAirder there was no one in the house except the deceased, the accused and her two children, one agedflour years and the other aged few mouths. The/learned Sessions Judge mis-read the evidence in/holding that others were also living in the Bakh/1. Daryab P.W. 12 and Bhamari P.W. 4 depot to this fact. Besides the accused herself in a statement before the Sessions Judge stated that in the Bakhal, the deceased the accused, Daryao and/Bhamari were the only per sons living. That Baryao and Bhamari were not in the house at that time of murder is deposed to by Daryao, Bhamari and Mst. Nano. That being the case, the muifier could have been committed either by the acensed or someone else. If it had been someone el/e, the accused would certainly have raised a ory. In these circumstances the facts found in pidence cannot be said to be compatible with the innocence of the accused.

For reasons given above, I am clearly of the opinion that the accused is guilty of murder u/s 302 I.P.C. Agreeing therefore, with the view or Dixit J., the accused is convicted of an offence u/s 302 I.P.C. and sentenced to transportation for life.