LexNIKA RAM versus THE STATE OF HIMACHAL PRADESH
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428 NIKA RAM v. THE STATE OF IDMACHAL PRADESH April 28, 1972 [J.M. ~HELAT AND H. R. KHANNA, JJ.] Code of Crinzinal Procedure s. 164--Confe.rsion recorded by Magistrate not empowered to record it is inadtnissible-So ir oral evidence of such n1aglstrate in support of the confession-Reduction of sentence, considera- Jionf fnr, The appellant was tried by the Sessions Judge for an offence under •. 30 of the Indian Penal Code for the 'murder of his wife.. According t~ the prosecution the appellant had suspected the fide:ity of his wife because he believed that a son born tc: her was not his. The wife was last seen in· the company of the appellant on the evening of the murder. It was alleged that the appellant went to the Tahsildar and made a confession. The Tahsildar thereafter called the police. At the instance of the appellant the body of his wife was recovered from his house. When produced before a first class Magistrate for having his confessional statement recorded the appellant declined to make any confessional statement. Rel)'- ing upon the confession .made to the Tahsildar and the other evidence the Sessions Judge convicted the appellant. The High Court upheld the conviction, Jn appeal before this C.Onrt it was inter alia contended on behalf -0f 1he appellant that the. confession recorded by the Tahsildar was inadmissible in evidence since he was a second class Magistrate not spe- cially empowered by the State Government in terms of s. 164 of 1he Code of Criminal Procedure to record a confession. B c D ll:ELD : In Sin11hara Sin11h·s case this Court _relying '?n N~zir .Ahmed'.• \lase laid down that a confession recorded during the mveshgat1on of a case by a second class Magistrate not specially ~mpow~red could not be put in evidence under ss. 74 and 80 of the .Indian Evidence Act. It 'Y"s also held that the oral evidence of the Mag•s'rate to prove the confes51on was inadmissible. Jn. the present case therefore the confesston recorded by the Tahsildar was inadmissible and so was his oral testimony to prove F it. [434 B-Cl S:ate of Uttar Pradesh v. Singhara Singh and Others, [1964] 4. S:C.R. 485 and Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372, apphed It could not be said that the Tahsildar recorded the staten1~nt before the commencement of investigation. !he confessic;>n was recorded . at 11 p.m. while the intimation to the police regarchn~ a murd~rer p.avn1g G come to the residence of the Tahsildar was entered in the daily diary at 10.50 p.m. The Head Constable after having. made that entry proceeded to the residence of the TahS1ldar and on arrival there put the accused 1inder arrest. lt is well established that the discovery and arrest . of t-h_e suspected offender is one of the essential steps in 1he course of an 1nvest1- gation. [415 E-G] H. R. Rishbud and Inder Singh v. The State of Delhi, [19551 l S.C.R II \ 150 and The State of Madhya Pradesh v. Mubarak Ali. [1959] Supp. l S.C.R. 201, followed. In re Yendra Narasimha Murthy, A.l.R. 1966 A.P. 131. referred to - ... NIKA P.AM v. STATE (Khanna, J.) 429 A However in the present case ~ven if the confession was excluded the rest of .the .material on record proved the gliilt of the accused. [435 EJ [Conviction maintained but in view of the special facts of the ca~e ·sentence i:educed from death to imprisonment for li'fe.l CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. B U of 1972. Appeal by special leave fro)ll the judgment. and .order. dat~ September 16, 1971 of the Himachal Pradesh High Court m Cn- minal Appeal No .. 37 oi 1970 and Murder Reference No. 3 of 1970. C G. Narayana Rao, for the appellant. D E G H H. R. Khanna and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Khanna J. Nika Ram ( 34) was convicted by learned Ses- sions J udg~ Mahasu under section 302 Indian Penal Code for committing the murder of his wife Churi (26) and was sentenced to death. On appeal and refernce under section 374 of the Code of Criminal Procedure, the High Court of Himachal Pradesh con- firmed the conviction and death sentence. Nika Ram has now come up in appeal to this Court by Special leave. · The prosecution case is that Nika :Kam was married to Churi deceased near about 1958. In 1964 Chmi gave birth to a soil named Joginder. Nika Ram considered that Joginder was not his son and had been born as a result oi adulterous conduct on the part of C
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