TaxTMI 
TaxTMI 
1961 (3) TMI 89
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....of the offences under so. 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 prosperous businessman, was residing at Sidhmugh. His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own. On November 12,1954, when Suraj Bhan was at his desk in 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 ....
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....ive but a large sum would be required as ransom to get his release. He also warned him not to divulge the secret, for, if he did so, not only the life of Suraj Bhan but also of other relations would be in danger. He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000. The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive. After satisfying themselves' of the bona fides of the negotiations conducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand. The sum of Rs. 50,000 was paid to Dhannaram and Deep Chand; and both of them counted the money. The money was paid on December 17,1954, and Suraj Bhan was released on December 20, 1954. Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences. The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under ss. 347 and 365, Indian Penal Code, and Deep Chand as aforesaid. Nothing more need be said about the conviction of Si....
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....gh Court would have accepted the evidence -of Suraj Bhan in respect of his version that he was confined in the house of Deep Chand. (2) The High Court also went wrong in upholding the privilege claimed by Shri S. Gajender Singh, the District Magistrate, in respect of important questions put to him in the cross examination; and if the claim of privilege had not been upheld, answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness-stand and that his previous statements represented the truth. (3) The High Court erred also in setting aside the order acquitting the appellant under s. 458, Indian Penal Code, without sufficient and compelling reasons and in convicting him under s. 452, Indian Penal Code. To appreciate the said questions, it is necessary to notice briefly the facts found by the courts below. On the first part of the episode, that is, the abduction of Suraj Bhan, the High Court accepted the evidence of Suraj Bhan. Suraj Bhan stated in his evidence that when he was writing his accounts at about 7-15 p.m. in his house on November 12, 1954, two persons with their faces covered with masks entered his house and by threate....
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....elow, supported the evidence of Suraj Bhan in regard to the condition of the building at the time he was interned therein. On the basis of the said evidence, both the courts concurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand. Now coming to the third stage of the journey, that is, the confinement of Suraj Bhan in Lachhman's house, Lachhman, as P.W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day, Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady. He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan, during his stay of 21 days in his house. This house was also identified by Suraj Bhan. Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman. This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations. The High Court held against the appellant, even without calling in aid the evidence of ....
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....onfessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried." Section 9 of the Evidence Act says that facts which. establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that -purpose. These two sections deal with different situations: s. 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial; s. 9 of the Evidence Act, on the other hand, makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing. If a statement of a witness recorded by a Magistrate in derogation of the provisions of s. 164 will go in as evidence under s. 9 of the Evidence Act, the object of s. 164 of the said Code will be defeated. It is, therefore, necessary to resort to the rule of harmonious construction so as to give full effect to both the provisions. If a Magistrate speaks to facts which establish the identity of any thing, the said facts would be relevant within the meaning of s, 9 of the Evidence Act; but if the Magistrate seeks to pro....
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....ecisions bearing on the admissibility in evidence of verification proceedings could conveniently be noticed. In Amiruddin Ahmed v. Emperor ((1917) I.L.R. 45 Cal- 557), a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused. Teunon, J., made the following observations at p. 564: "They are undertaken, it would seem, with a view to testing the truth of a confession and to obtain evidence either corroborating the confession or indicating its falsity. In so far at least as such evidence may be obtained, for instance, in ascertaining that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken, or in furnishing clues to further enquiry, such proceedings may be useful. In connection with such proceeding the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted. In the present case that precaution has not been taken: for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the course of his proceedings. Such additional sta....
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....rded in the manner -prescribed by s. 164 of the Code of Criminal Procedure would be inadmissible. We are proceeding on the basis that the said statements were not recorded in compliance with the provisions of S. 164 of the Code of Criminal Procedure and we should not be understood to have expressed any opinion on the question whether they have been so recorded or not, or whether mere irregularities, if any, committed in the manner of recording such statements by Magistrates under s. 164 of the Code of Criminal Procedure would make such statements inadmissible. That apart, Ex. P-27 and the evidence given by the Magis- trate were only used by the court as corroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand. Apart from the Magistrate's evidence there is also other. evidence in the case in regard to the original condition of the building and the subsequent additional structures put up by Deep Chand. As the High Court accepted that evidence, even if the evidence of the Magistrate was excluded it would not have made any difference in the result. We, therefore, hold that the evidence of the Magistrate, excluding that part pertaining to the....