LexDEEP CHAND versus THE STATE OF RAJASTHAN
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March 30. 662 SUPREME COURT REPORTS [1962) DEEP CHAND v. THE STATE OF RAJASTHAN (K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) Criminal Trial - Memorandum prepared by Magistrate in verification proceeding-Statements made to such Magistrate not recorded in prescribed manner-Deposition of Magistrate-Admissi- bility-Code of Criminal Procedure, r898 (V of r898), s. r64-- lndian Evidence Act, r872 (r of r872), s. 9. · In a verification proceeding held by him the Magistrate prepared a memorandum recording his own observations as also the statements made to him by a prosecution witness but not in the manner prescribed by s. 164 of the Code of Criminal Proce- dure. He proved the memorandum in court and gave his evi- dence. It was contended that the High Court was wrong in acting upon the said memorandum. Held, that although s. 164 of the Code of Criminal Proce- dure and s. 9 of the Indian Evidence Act deal with two diffe- rent matters, they must be read together and harmoniously con- strued so as to give full effect to both of them. So construed, there could be no doubt that the evidence of the Magistrate himself on the basis of the memorandum would be relevant under s. 9 of the Evidence Act and as such admissi- ble in evidence but the statements made to h.im by the prosecu- tion witness, having been recorded in contravention of the mandatory provisions of s. 164 of the Code, must be excluded as inadmissible on evidence. Nazir Ahmad v. The King-Emperor, (1936) I.L.R. 17 Lah. 629, Legal Remembrancer v. Lalit Mohan Singh Roy, (J92r) I.L.R. 49 Cal. 167 considered. Amiruddin Ahmed v. Emperor, (1917) I.L.R. 45 Cal. 557, and Jitendra Nath v. Emperor, A.I.R. 1937 Cal. 99, referred to. CRIMINAL APPELLATE JURISDICTION: c rim in a I A ppcal No. 156 of 1960. Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant. H.J. Umrigar, H. R. Khanna, Bipin Behari Lal, • R. H. Dhebar and D. Gupta, for the respondent. ) ' \ j 1 S.C.R. SUPREME COURT REPORTS 663 1961. March 30. The Judgment of the Court was delivered by SunBA RAO, J.-This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churn, dated May 3, 1957, in so far as he convicted the appellant under ss. 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appel- lant under s. 458, Indian Penal Code, and convicting the appellant under s. 452, Indian Penal Code. The learned Additional Sessions Judge sentenced the appel- lant for the offences under ss. 34 7, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for 1 year, 2 years and 3i years respectively. The High Court enhanced the sentences in respect of the offences under ss. 347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant; the sentence in regard to the offence under s. 365, Indian Penal Code, was confirmed. The High Court further found that the appellant was guilty under s. 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years. At the outset it would be convenient to state briefly the case of the prosecution. One Kashiram, a pros- perous businessman, was residing at Sidhmugh. His only son Suraj Bhan was living at Rajgarh where he was carrying on an independent business of his own. On November 12, 1954, when Suraj Bhan was at his desk m his house, somebody made an enquiry whether one Rameshwar was -there, to which Suraj Bhan replied in the negative. A few minutes thereafter, two men with masks entered the room and one of them was armed with a revolver. The said two persons threatened to shoot Suraj Bhan if he made any noise and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked. After covering the face of Suraj Bhan by tying a cloth round his neck, he was made to mount one of the camels. The two per- sons who pulled Suraj Bhan out of his house also Deep Chand v. The State of Rajasthan Subba Rao ]. I96I Deep Chand v. The State of Rajas than Subba Rao }. 664 SUPREME COURT REPORTS [1962] mounted
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