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PETITIONER: DEEP CHAND

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 30/03/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1527            1962 SCR  (1) 662  CITATOR INFO :  F          1964 SC 358  (13)  R          1970 SC1619  (12,13)  R          1975 SC 915  (25)

ACT: Criminal   Trial-Memorandum   prepared  by   Magistrate   in verification Procecding--Statements made to such  Magistrate not recorded in prescribed manner-Deposition of  Magistrate- Admissibility---Code  of  Criminal  Procedure,  1898  (V  of 1898), s. 164 Indian Evidence Act, 1872 (1 of 1872), s. 9.

HEADNOTE: 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 Procedure.   He proved the memorandum in court and gave  his evidence.  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 Procedure and s. 9 of the Indian Evidence Act deal with two  different 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 admissible in evidence but the statements made to him by the prosecution  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. I7 Lah.  620, Legal  Remembrancer v. Lalit Mohan Singh Roy, (192I)  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.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156  of 1960. Appeal  by special leave from the judgment and  order  dated

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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. 663 1961.  March 30.  The Judgment of the Court was delivered by SUBBA 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, Churu, 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 appellant  under s. 458, Indian Penal Code,  and  convicting the appellant under s. 452, Indian Penal Code.  The  learned Additional  Sessions Judge sentenced the appellant  for  the offences  under ss. 347, 365 and 386, Indian Penal Code,  to undergo rigorous imprisonment for I year, 2 years and 3  1/2 years respectively.  Tile High Court enhanced the  sentences in  respect  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 round his neck, he was made  to mount  one of the camels.  The two persons who pulled  Suraj Bhan out of his house also 664 mounted  the same camel, one in front of Suraj Bhan and  the other  behind  him.   After firing some shots  in  the  air, presumably  to  prevent pursuit, the said per   sons,  along with  Suraj Bhan, left the place.  After riding for 3  or  4 hours,  the camels were made to stop on a railway line,  the said persons got down from the   camel, Suraj Bhan was  also made  to  get down, and all of them went along  the  railway line for 3 or 4 furlongs.  Thereafter, Suraj Bhan was  taken to the house of Dee Chand, the appellant, in village  Kalari and  was  kept there in confinement in a small room  for  17 days.   During  the entire period he was  kept  blindfolded. Two  or three days after the abduction, Suraj Bhan was  made to  write  three  letters to his father  and  put  down  his father’s  address  on the envelopes.  He was made  to  write these letters under the cover of a blanket after his bandage was removed temporarily.  In the first letter he was made to write that if his father reported the matter to the  police, he would not see his son again in the second letter, he  was made to inform his father that in view of the attempts  made

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by his father to trace him, his abductors had made up  their minds not to release him, but in view of his entreaties they had  agreed  to release him on- payment of a ransom  of  Rs. 60,000;  and in the third letter, he was made to write  that the money should be handed over to the bearer of the  letter and  that he would be released on such payment.   After  the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations.  Meanwhile,  to facilitate  the  smooth  conduct  of  the  negotiations,  on November  29, 1954, Suraj Bhan was removed to the  house  of one Lachhman and was confined there till his release.  Kashi Ram  has a son-in-law by name Shiv Bhagwan, the son  of  one Durga Parshad.  Dhannaram and Shiv Bhagwan knew each  other. Dhannaram  offered to help Kashi Ram to get the  release  of his son.  Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help  in the matter of the release of Suraj Blian.   On  the basis of the letter, Durga Parshad contacted Deep Chand, who promised 665 to  do  his  best  in  the  matter.   After  further  talks, Dhannaram met Shiv Bhagwan and told him that Suraj Bhan  was alive 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  Sisram,  as  on  appeal  he  was acquitted  by the High Court and no appeal was preferred  by the  State  against  his acquittal.   The  learned  Sessions Judge,  on  a consideration of the  entire  evidence  placed before  him,  held that there was overwhelming  evidence  to show  that Deep Chand detained Suraj Bhan in his  house  for sometime and thereafter in Lachhman’s house and released him on  payment  of a ransom.  But he held that  there  was  not sufficient  evidence  to  find definitely  that  Deep  Chand participated in the abduction of Suraj Bhan on November  12, 1954,  from  the  latter’s house.   On  these  findings,  he convicted  Deep  Chand under ss. 347, 365  and  386,  Indian Penal  Code.   Deep Chand preferred an  appeal  against  his conviction, and the State filed an appeal 84 666 against the judgment of the learned Sessions Judge in so far as  he  acquitted Deep Chand of the offence  under  s.  458, Indian Penal Code.  The State also preferred a revision  for enhancing  the  sentences  passed on Deep  Chand.   All  the matters  were  heard together by the High Court  and,  on  a resurvey of the entire evidence, it agreed with the Sessions

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Judge  that  Suraj Bhan was confined in the  house  of  Deep Chand  and  later on in the house of Lachhman  and  that  he extorted  money from Kashi Ram by putting him under fear  of death of his son, Suraj Bhan.  Disagreeing with the Sessions Judge,  the  High  Court  further  held  that  it  had  been established  on the evidence that Deep Chand was one of  the persons  who abducted Suraj Bhan from his house on  November 12,  1954.   In  the result, the High  Court  convicted  the appellant not only under ss. 347, 365 and 386, Indian  Penal Code,  but  also  under s. 452 thereof.  In  the  matter  of enhancement  of the sentences, it was of the view  that  the case  deserved  an exemplary punishment  and,  therefore  it enhanced  the sentences as aforesaid.  Deep Chand  preferred the present appeal by special leave. Learned counsel for the appellant in an attempt to  dislodge the  findings  arrived  at  by the  High  Court  raised  the following  points  before us: (1) The High  Court  erred  in relying  upon  the statement made by Suraj Bhan  before  the Magistrate  at the time of verification proceedings,  though it was not recorded in compliance with the provisions of  s. 164  of  the  Code of Criminal Procedure, and  if  the  said statement  and  the verification proceedings based  on  that statement  were  excluded, it is not possible  to  predicate that  the  High 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 667 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 threatening to shoot him,  forcibly took him away on one of the two camels brought by them.   He further alleged that he recognized one of the abductors  who threatened  him with a revolver as Deep Chand, as he  was  a local  Congressman  known to Suraj Bhan from  before.   This identification  of Deep Chand as one of the accused was  not accepted by the Sessions Judge, but the High Court  accepted it  for  the reason given in its judgment.  As  regards  the second stage, namely, the confinement of Suraj Bhan in  Deep Chand’s house, the High Court accepted the evidence of Suraj Bhan  identifying  the  said  house  by  giving  particulars thereof.   Suraj Bhan’s version was as follows:  During  his confinement in the house, he used to loosen the bandage  and see  through the chinks in the wall of the room in which  he was  interned.  He was in that house for 17 days and he  had heard  the voice of Deep Chand whom he knew before.   During his  confinement  there,  he also  heard  a  lady  enquiring whether  Deep Chand had gone out and another lady  answering the  query.   He had also given in detail the  landmarks  he

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gathered in the course of his journey from his house to  the house  of Deep Chand which substantially tallied with  those leading to Deep Chand’s house.  This evidence of Suraj  Bhan was   corroborated  by  the  evidence  of   Devisingh,   the Magistrate,  Randhawa and Ratan Singh.  The Magistrate  took Suraj  Bhan along with him to the house of Deep  Chand.   He inspected  the house and got the plan, Ex.   P-28,  prepared under his 668 supervision  by P.W. 25, the Reserve Inspector,  Churu.   He also  recorded  the  memorandum, Ex.   P-27,  in  which  his observations  and  the statements made by  Suraj  Bhan  were noted down.’ The Magistrate gave evidence as P.W. 21 and  in his  evidence  he described the building of Deep  Chand  and also proved the memorandum prepared by him.  His evidence is further corroborated by the evidence of two witnesses,  P.W. 25,  Randhawa, and P.W. 39.  The memorandum prepared by  the Magistrate, his evidence and the evidence of P.Ws. 25 and 39 establish  that there used to be chinks in the wall  through which  Suraj Bhan used to see a tree and that  these  chinks had been recently closed "by pointing the room from  inside" and that two new rooms were constructed towards the north of the house.  P.W. 27 deposed that these two new constructions were  made  about  the beginning of  the  year  1955.   This evidence, which was accepted by the courts below,  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 Lachhman, on the basis of other facts. 669 Then  there  is  the  evidence of  Shiv  Bhagwan  and  Durga Parshad,  who  actually paid the  ransom.   These  witnesses spoke about the negotiations and also the actual payment  of Rs. 50,000 to Deep Chand.  This evidence was again  accepted by  both the courts.  Then there was the evidence  of  Lachi Ram  and Amar Singh, who carried on negotiations  with  Deep Chand  for  the  return of the ransom  in  the  presence  of Chowdhuri  Kumbbaram, the then Home Minister  of  Rajasthan. This  evidence  was also accepted by both the  courts.   The aforesaid   evidence,   along  with   other   circumstances, according  to the High Court, brought home the guilt to  the appellant on all charges. It  is  the  usual  practice of this  Court  to  accept  the concurrent  findings of fact arrived at by the courts  below and  there are no exceptional circumstances in this case  to depart from the usual practice. We  shall now proceed to consider the arguments  of  learned

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counsel for the appellant seriatim.  His first criticism  is directed  against the verification proceedings conducted  by the Magistrate at the house of Deep Chand.  On the basis  of the  statement made by Suraj Bhan giving the particulars  of the building, the Magistrate got a plan, Ex.  P-28, prepared and also a memorandum, Ex.  P-27.  He also gave evidence  in the  court.   It is said that the High Court went  wrong  in acting  upon  the said memorandum by  the  Magistrate.   The relevant  provisions  are  s. 164 of the  Code  of  Criminal Procedure  and s. 9 of the Evidence Act.  The material  part of s. 164 of the Code of Criminal Procedure reads:               "(1) Any Presidency Magistrate, any Magistrate               of  the first class and any Magistrate of  the               second  class  specially  empowered  in   this               behalf  by the State Government may, if he  is               not  a police-officer record any statement  or               confession  made  to him in the course  of  an               investigation under this Chapter or under  any               other  law for the time being in force  or  at               any time afterwards before the commencement of               the inquiry or trial.               (2)   Such  statements  shall be  recorded  in               such of the manners hereinafter prescribed for               recording               670               evidence  as is, in his opinion,  best  fitted               for  the  circumstances  of  the  case.   Such               confessions  shall be recorded and  signed  in               the  manner provided in section 364, and  such               statements   or  confessions  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  prove  statements of a  person  not  recorded  in compliance  with the mandatory provisions of s. 164  of  the Code  of  Criminal  Procedure, such part  of  the  evidence, though it may be relevant within the meaning of s. 9 of  the Evidence,’  Act,  will  have  to be excluded  .  By  such  a construction of the provisions a satisfactory solution could be evolved.  The decision of the Judicial Committee in Nazir Ahmad v. The King-Emperor (1) is rather instructive.  There, a  Magistrate  gave evidence in court on the strength  of  a confession  made to him which was not recorded under s.  164 of the Code of Criminal Procedure.  The question was whether the  said evidence was admissible against the accused.   The Judicial  Committee quoted and approved the well  recognized rule that

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(1)  (1936) I. L. R. 17 Lahore 629. 671 where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and  other methods of performance are necessarily forbidden.  Adverting to  s. 164 of the Code of Criminal Procedure,  the  Judicial Committee proceeded to state at p. 642 thus:               "It  is  also  to be  observed  that,  if  the               construction  contended  for by the  Crown  be               correct,  all the precautions  and  safeguards               laid down by sections 164 and 364 would be  of               such trifling value as to be almost idle."               The Judicial Committee also stated the  policy               underlying the section thus at p. 643:               "In the result they would indeed be  relegated               to  the  position  of  ordinary  citizens   as               witnesses and then would be required to depose               to   matters  transacted  by  them  in   their               official capacity unregulated by any statutory               rules of procedure or conduct whatever." These  are  weighty observations and we  respectfully  adopt them.   But  this decision does not preclude,  a  Magistrate from deposing to relevant facts if no statute precludes  him from  doing so either expressly or impliedly.   Neither  the Evidence Act nor the Code of Criminal Procedure prohibits a, Magistrate  from  deposing  to  relevant  facts  within  the meaning of s. 9 of the Evidence Act.  In Legal  Remembrancer v.  Lalit Mohan Singh Roy (1), a Magistrate sought  to  give evidence  of  an  unrecorded statement made to  him  by  the accused.    The   court  rightly  held  that  it   was   not permissible.   The  same remarks we made in  regard  to  the decision of the Privy Council would apply to this case. In  this  context a few relevant decisions  bearing  on  the admissibility in evidence of verification proceedings  could conveniently be noticed.  In Amiruddin Ahmed v. Emperor (2), 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               (1)  (1921)  I.L.R. 49 Cal. 167.   (2)  (1917)               I.L.R. 45 Cal- 557.               672               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 statements being statements made in               the  course  of  an  investigation,  when  not               recorded in the manner provided in section 164               of the Code of Criminal Procedure, are, in  my               opinion, inadmissible."

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             The  other  learned Judge, Shamsul  Huda,  J.,               made the following statement at p. 572:               "I think, ’verification’ under conditions such               as these lends itself to very great abuses and               should  be avoided.  There is perhaps  nothing               objectionable    in   a   verification    made               independently  of the confessing  accused  and               unaided by him". We  are  not concerned in this case with  the  propriety  of verification  proceedings in regard to a confession made  by an accused.  This decision is an authority for the  position that the evidence given by a Magistrate on the basis of  the verification  proceedings  conducted  by  him  is   relevant evidence’  though he could not speak of statements  made  by the accused or a witness recorded by him in contravention of s.  164  of  the  Code  of  Criminal  Procedure.   The  same distinction  was  pointed out by the Special  Bench  of  the Calcutta  High  Court in Jitendra Nath v. Emperor  (1).   In that case, the learned Judges observed at p. 110 thus:               "In  one case there was a verification  report               so  far  as the confessional statement  of  an               accused  person was concerned, which it  would               appear was fairly               (1)   A.I.R. 1937 Cal. 99.                                    673               supported by other evidence bearing on matters               covered  by the said report by the  Magistrate               by  whom it was recorded, and which cannot  be               ruled   out   on  the  ground  that   it   was               inadmissible  in  evidence,  seeing  that  the               Magistrate  himself was examined as a  witness               in the case, and spoke to the contents of  the               report made by him, which is placed on  record               as  evidence, in support of  the  confessional               statement of Sudhir Bbattacharjya."               Then the learned Judges proceeded to state,               "Statements   made  by  the  accused  to   the               verifying  Magistrates  in the course  of  the               proceedings,  if they are not recorded in  the               manner provided in s. 164, Criminal  Procedure               Code, are however inadmissible." It is, therefore, clear that the memorandum prepared by  the Magistrate describing the present condition of the house and the  evidence given by him on the basis of  that  memorandum would  be relevant evidence under s. 9 of the Evidence  Act; but  *.he  statements made by Suraj Bhan to  the  Magistrate said to be not recorded 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

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difference  in  the result.  We, therefore,  hold  that  the evidence of the 85 674 Magistrate, excluding that part pertaining to the statements made  to  him by Suraj Bhan, was relevant  evidence  in  the case. The  second  contention turns upon the  claim  of  privilege raised by witness Gajender Singh and allowed by the  learned Sessions  Judge.   Some  of the relevant facts  may  now  be stated.   Suraj Bhan was released on December 20, 1954.   On February 14, 1955, one Shiv Dutt made a statement before the District  Magistrate,  S.  Gajendar  Singh,  and  the   said Magistrate  recorded  the same under s. 164 of the  Code  of Criminal Procedure.  In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the  prosecution. On March 12, 1955, Suraj Bhan was examined by the police and he  made  a  statement  (Ex.   D-8).   Therein  he  gave  an altogether different version contradicting the statement  of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, Ex.    P-5,  in  the:  Court  of  the  Additional   District Magistrate, Ganganagar, stating that Deep Chand had  nothing to do with the offence’ On May 5, 1955, the prosecution  got five copies of the said affidavit made and attested.  On May 23,  1956,  for the first time, Suraj Bhan  implicated  Deep Chand  in  the crime.  Regarding the question  whether  Shiv Dutt  made  such a statement on February  14,1955,  Gajender Singh and Shiv Dutt were examined and both of them spoke  to that fact.  The argument is that important questions put  to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that  if that evidence was eliminated, the High Court  might not  have accepted the reasons advanced by  the  prosecution explaining  away  the inconsistent versions given  by  Suraj Bhan.   At the outset it may be stated that it is not  quite correct  to  state that the High Court  explained  away  the earlier  versions  given by Suraj Bhan on the basis  of  the evidence  given by Gajender Singh.  On the other hand,  both the  courts have given convincing reason why Suraj Bhan  and the  members of his family did not come forward  immediately with  the true version of the incident; for, at  one  stage, they were anxious to 675 save  the life of Suraj Bhan and at a later stage they  were equally  anxious  to get back the money paid  as  ransom  by Suraj  Bhan’s  father.  The courts have  also  accepted  the evidence  of  Shiv  Dutt.   That  apart,  the  question   of privilege  was  not raised before the High  Court.   In  the circumstances,  we  would not be justified in  allowing  the appellant to raise before us the question of privilege based upon’ the disallowance of a few questions put to one of  the witnesses.  This objection is, therefore, rejected. The  third  argument has no merits either.  The  High  Court considered, and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he  identified Deep  Chand at the time of abduction.  Suraj Bhan  knew  the accused  before  and  he also knew his  stature  and  voice. Suraj Bhan was in the company of Deep Chand from the time of his  abduction  till he was finally  released.   When  Suraj Bhan,  in the circumstances, stated that he identified  Deep Chand, there is no valid reason to reject his evidence.   In the  circumstances,  the High Court was quite  justified  in setting  aside the order of acquittal under s.  458,  Indian Penal Code, and convicting him for the offence under s.  452

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there of Finally   learned   counsel  for  the  appellant   made   an impassioned  appeal  on the question of sentence.   He  said that  the  learned Sessions Judge had awarded  a  reasonable sentence to the accused and the High Court was not justified in  enhancing  the said sentence.  The Sessions  Judge  held that the accused was guilty of a grave and heinous crime and we  are surprised that he should have sentenced the  accused to undergo rigorous imprisonment for one year under s.  347, 2  years under s. 365 and 3 1/2 years under s.  386,  Indian Penal  Code, and direct the sentences to  run  concurrently. When  the  Sessions  Judge gave  such  a  disproportionately lenient  sentences,  it was the duty of the  High  Court  to rectify  such  an obvious error.  In our view,  the  learned Judges  of  the  High Court rightly  enhanced  the  sentence imposed on the appellant. In the result, the appeal fails and is dismissed. Appeal dismissed. 676