Mst. Harjit Kaur vs The Crown

Harnam Singh, J.—Mt. Harjit Kaur, aged about 18 years, has been convicted u/s 302, I. P.C. for having murdered her newly born female child on 12-1-1949 & sentenced to transportation for life, while Dhian Singh father of Harjit Kaur has been given the benefit of the doubt & acquitted for offences u/s 201 or Section 318, I. P.C. Mt. Harjit Kaur appeals.

The facts so far as material are that Mt. Harjit Kaur of village Hansro of Jullundur (dist, was married some time in June 1947 with Lashkar Singh of village Mohanwal. No muklawa had, however, been performed & that being so Lashkar Singh had not visited Mt. Harjit Kaur in village Hansro prior to the incident.

On 12-1-1949 Dhian Singh, father of Mt. Harjit Kaur, told Mt. Hardai P. W. 10 that Mt. Harjit Kaur was feeling pain in her belly & that she should accompany him to his house. Mt. Hardai thereupon went to the house of Dhian Singh & there massaged the belly of Mt. Harjit Kaur & noticed a live child in that belly. She waited for two hours & then a female child was born to Mt. Harjit Kaur. After delivery Mt. Harjit Kaur became unconscious & Mt. Hardai gave the child to Mt. Rajo, mother of Mt. Harjit Kaur accused, & then went to her own house.

On 13-1-1949 at about 4-30 P. M. Teja Singh Jat informed Mehnga P. W. 5 that he had seen the dead body of a newly born baby wrapped in a piece of check cloth, lying in the wheat field of Batna. Mehnga P. W. 5 then accompanied Teja Singh to that field & saw the dead body lying there wrapped in the shirt, Ex. P. l. On return from the spot Mehnga P. W. 5 went to Kulla Chaukidar & informed him of what he had seen in the wheat field.

Kulla P. W 6 then informed Surain Singh & Suchet Singh, Lambardars. Reaching the spot he found the dead body of a newly born baby lying wrapped in the check shirt, Ex. P. 1. Surain Singh Lambardar then directed Kulla P. W. 6 to go to the police station, Rahon, for lodging the First Information Report. Kulla P. W. 6 was on his way to Rahon police station when Jagjit Singh, Asst. Sub-Inspector of Police met him near Hansro village & he made the statement, Ex. P. 1, to him at that place. The field from where the dead body was recovered lies in the area of village Kariam, situate at a distance of one mile from the abadi of village Hansro.

After having recorded the First Information Report, Sardar Jagjit Singh, Asst. Sub-Inspector of Police, went to the spot & noticed the dead body of a female child lying wrapped in the shirt, Ex. P. 1 in the wheat field. He drew up the inquest report, Ex. P. H. & sent the rumas Ex. P. J. to the doctor for post mortem examination, mentioning the injury noticed on the front portion of the neck of the child.

Doctor Surjan Singh, Asst. Surgeon, Phillaur, conducted the post mortem examination of the dead body of the child on 14-1-1949 at 5-30 P. M. & found a bruise mark 3" x 1/4" present on the front of the neck on both sides of the wind pipe. He also noticed an abrasion 1/4" x3/4" on the left side of neck. In the opinion of Doctor Surjan Singh the child was born alive & died within one or two days after birth & that the death of the child was due to asphyxia as a result of the compression of the neck. In cross-examination he stated that it was not likely that the injury on the neck should be the result of pressure by the thumb.

Mt. Harjit Kaur was examined by Doctor Malook Singh, Civil Surgeon, Ferozepore, on 15-1-1949 at 6-30 P. M. On examination he found that the uterus of Mb. Harjit Kaur was three fingers above the symphysis pubis & that there was a vaginal tear 1/4" long on the posterior margin. The breasts of Mt. Harjit Kaur were full of milk which was leaking & staining the shirt worn by her. In the opinion of Doctor Malook Singh, Mt. Harjit Kaur had given birth to a child within three or four days prior to her examination by him.

Sardar Jagjit Singh, Asst. Sub-Inspector of Police recorded the statement of Hardai P. W. on 14-1-1949. He also interrogated Mb. Harjit Kaur on that date but did not arrest her. On 18-1-1949 Sardar Jagjit Singh brought Mt. Harjit Kaur to Jullundur & got her medically examined. Even after the medical examination of Mt. Harjit Kaur he did not arrest her. There was no investigation on 16 or 17-1-1919 & it appears that on 18th of January Chaudhri Jaswant Rai S. R. C. took up the investigation of this case in his hands. Mt. Harjit Kaur & Dhian Singh were arrested on 18-1-1949 & taken to the police station, Rahon.

It appears that Lashkar Singh & Swarn Singh, relations of the accused, went to the police station, Rahon, on 19-1-1949. Chaudhri Jaswant Rai, however, challaned them u/s 161, read with Section 116, I. P.C. & detained them at the police station on that date. He then brought Mt. Harjit Kaur & Dhian Singh to Jullundur & produced the incomplete challan in Ct. on 19-1.1949. In the proceedings on the 19-1-1949, the statements of Kulla P. W. 1, Mahnga P. W. 2, Hardai P. W. 3 & Mela Singh P. W. 4 were recorded when it is said that Mt. Harjit Kaur notified to the Ct. that she wanted to make a statement. At that stage the Mag. felt doubtful whether it would be legal to examine Mt. Harjit Kaur. He, however, asked the Public Prosecutor to address him on that point & after some arguments he ordered that the statement of the accused may be recorded. The record of the statement of Mt, Harjit Kaur reads :

Q. What is your statement ?

A. I felt pain in ray belly. I sent for the date, Mt. Hardai. A girl child was born to me. I felt ashamed & I put my thumb on the neck of the girl child. I wrapped the dead body into the cloth having lines. I handed over the wrapped dead body to my father who threw it outside in the fields. I beg to be pardoned from the Ct.

Thereafter Mt. Harjit Kaur & Dhian Singh accused were remanded to the judicial lock-up & the case was adjourned to 27-1-1949. On that date, Mt. Harjit Kaur when she appeared in Ct. stated that she wanted to make a statement & at that stage the Mag. again examined her. The record of that statement reads :

Q. What is your statement ?

A. The police got my statement made to the Ct. on the last hearing under threat. The statement that I made was not true. I was brought straight from the thana to the Ct. The police told me that if I made the confessional statement, I would be let off, I have only so much to say.

Now, the trial Ct. has come to the conclusion that the statement that she made on 19-1-1949 was voluntary & true & acting on that statement & the other evidence referred to above the trial Ct. has convicted Mt. Harjit Kaur u/s 302, 1. P.C. & sentenced her as stated above.

Sardar Gurnam Singh, who appears in these proceedings for Mt. Harjit Kaur, contends that regard being had to the circumstances in which the confessional statement was recorded the confessional statement must be excluded from consideration in determining the guilt of the applt. In this connection he cites Sullah v. Emperor AIR 1928 Lah. 724 : 29 Cri. L.J. 697. In that case the facts were that on 27-10-1927 when the police investigation had not yet concluded, an incomplete) challan was placed before the Mag. & after recording the evidence of three witnesses, the Mag. examined the prisoner u/s 342, Cr. P.C. In that statement the accused admitted his participation in the assault, but when he-was examined again by the Committing Mag. on 17-12-1927, he denied having committed the murder & in his written statement filed two days afterwards he attributed his first statement to a promise of pardon made by the police? & also to the ill-treatment to which he was subjected by the investigating officer. On these facts Shadi Lal C.J. with whom Coldstream J. concurred, said :

The police produced the incomplete challan evidently with the object of getting the confession recorded by the Committing Mag. & thereby avoiding, the mandatory provisions of Section 164, Cr. P.C., relating to the record of a confession by a Mag. As the police had not completed their investigation, they should have adopted the straightforward course of producing the accused before a Mag. & asked him to record the confession u/s 164 after observing the precautions prescribed by that section. Sub-section (8), Section 164 lays down in clear terms that a Mag. shall, before recording a confession, explain to the person, making it, that he is not bound to make a confession, & that if he does so it may be used as evidence against him & that no Mag. shall record any such confession unless upon questioning the person making it, he-has reason to believe that it was made voluntarily. Now, if these precautions had been observed, the prisoner might have explained to the Mag. that he was making the confession, not voluntarily, but under the pressure of the police or in pursuance of a promise of pardon made by them. We must deprecate this attempt made by the police to get over the mandatory provisions of the law contained in Section 164, Cr. P.C. & we exclude the alleged confession from consideration.

As stated above, in the present case an incomplete challan was produced in Court & the confessional statement of Mt. Harjit Kaur was recorded before the prosecution case was closed. Furthermore it is in evidence that Lashkar Singh & Swarn Singh, relations of Mt. Harjit Kaur & Dhian Singh, were put under arrest at the police station & were not allowed to proceed with the accused to Jullundur.

Sardar Gurnam Singh next contends that the confessional statement of Mt. Harjit Kaur conflicts with the medical evidence examined at the trial. As stated above, Mt. Harjit Kaur stated in the confessional statement that she put her thumb on the neck of the child who died. Doctor Surjan Singh, however, was of opinion that it was not likely that the injury on the neck of the child should be the result of the pressure by the thumb.

For all these reasons I would exclude from consideration the confessional statement of Mt. Harjit Kaur in determining the guilt of the applt. (His Lordship then examined the evidence and rinding that it failed to connect the accused with the murder of the child allowed the appeal.)

Bhandari, J.

I agree.