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TMI Blog2004 (4) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... the said house. On 2-7-2001 at about 5.30 p.m. the appellant came to the out-post and had some heated discussion with the deceased. P.W. 1, a Constable who was on duty in the said out-post apprehended that the discussions might result in a fight and he was trying to pacify them. At that moment P.W. 1 was informed that there was a telephone call to him from Ranipool Police Station in the house of the Vice-President of East District Panchayat. He accordingly rushed to attend the telephone call. When he returned to the outpost after attending the telephone, he saw the appellant standing on the door-step of the room with a bamphok in his hand and the deceased was lying dead on the floor of the room in a pool of blood. On receipt of information from P.W. 1 about the incident the officer-in-charge of Ranipool Station Police arrived at the spot. P.W. 1 thereafter filed the FIR before him. 3. In order to bring home the charge against the appellant the prosecution examined 19 witnesses. Besides the oral evidence, prosecution also pressed into service the judicial confession (Exhibit 7) made by the appellant before the Judicial Magistrate P.W. 18. The appellant examined his brother as D.W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly went to her and conveyed the message. She in turn requested him to convey to the appellant that he need not visit her. P.W. 7 is a blacksmith who stated that he knew the father of the appellant being a co-villager. P.W. 8 is the mother of the appellant. She stated that since 6 months prior to the incident the appellant was working as a driver at Dikchut whereas his wife P.W. 6 was staying alone in their own house at Bhusuk. P.W. 9 is a witness to the inquest of the dead body of the deceased and seizure of alleged weapon of offence, bamphok Exhibit PI. P.Ws. 10 and 11 are the seizure witnesses to the wearing clothes (one pant and one vest) of the appellant. P.Ws. 12 and 17 were the seizure witnesses to one scabbard of bamphok. P.W. 13 is the doctor who conducted the postmortem examination of the deceased. P.W. 14 was declared hostile by the prosecution. P.Ws. 15 and 16 were examined to say that they had to stay at out-post to help P.W. 1 after the incident. P.W. 18 is the Judicial Magistrate who recorded the confessional statement made by the appellant. P.W. 19 is the Investigating Officer. 7. It is not disputed at the bar that the deceased had homicidal death. P.W. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t examine the validity of this ground because there is substance in the second ground of objection taken by the learned counsel. It is evident from the confessional statement (Exhibit P8) that the learned Magistrate administered oath to the appellant before his statement was recorded. The question as to what is the effect of administering oath to an accused before his confessional statement is recorded came up for consideration before a Division Bench of the Lahore High Court in Karam Ilahi v. Emperor AIR 1947 Lah 92 Considering Section 164 of the old Code and Section 5 of the Indian Oaths Act, 1873 the Bench held that a person becomes an accused soon after his arrest by the police for an offence which forms the subject-matter of investigation and a confession made by him in the course of an investigation comes within the ambit of Section 5 of the Indian Oaths Act, 1873 and the Magistrate acted illegally in recording such a confession on solemn affirmation. The Bench however held such confession is admissible in evidence in absence of any proof of occasioning miscarriage of justice. The same question came up for consideration before the Division Bench of the Karnataka High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 164, Cr. P.C. empowers a Metropolitan Magistrate or a Judicial Magistrate, whether or not he has jurisdiction in the case, to record any confession or statement made to him in the course of an investigation or at any time afterwards before the commencement of any inquiry or trial. Sub-section (2) requires that before recording any confessional statement the Magistrate to explain to the person making confession that he is not bound to make any confession and that, if he does so, it may be used against him. The said provision further mandates the Magistrate not to record any such confession unless, he is satisfied that it is being made voluntarily. Sub-section (4) states that such confession shall be recorded in the manner provided in Section 281, Cr. P.C. and the Magistrate has to append a note of memorandum at the foot of the confession. Subsection (5) has direct bearing on the point at issue. A close reading of it would indicate that any statement other than a confession made under Sub-section (1) shall be recorded in the manner prescribed for recording of evidence and the Magistrate shall have the power to administer oath to such person. Therefore the expression statement reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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