REPORTABLE
IN THE SUPREME COURT OF INDIA
KALI RAM …PETITIONER
Vs.
STATE OF HIMACHAL PRADESH …RESPONDENT
DATE OF JUDGMENT: 24/09/1973
BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH
CITATION:
1973 AIR 2773 1974 SCR (1) 722
1973 SCC (2) 808
CITATOR INFO :
R 1975 SC 241 (13)
F 1984 SC 911 (5)
R 1984 SC1622 (162)
ACT:
Criminal trial-Burden of proof-Benefit of doubt-Principles, governing.
Code of Criminal Procedure, 1898 (5 of 1898)s. 162-Scope of.
HELD :that the judgment of the trial court and theHigh Court had to be .set aside and the accused acquitted. [736F] ( 1) If a witness professedto know about a gravely incriminating circumstance against a person accused ofthe offenceof murder and the witness kept silent for overtwo months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstances,in the absence of anycogentreason,was bound to lose most of its value. [73OB-C] (2) The fact that no action was taken on the letter till it was taken into possession by the police, the incongruity of the portion of the letter relating to confession andthe circumstances in which the accused is stated to have got the letterwritten-all these make it unsafe to act uponthe confession incorporated in the letter. [730H] (3) The letter which was addressed by SR tothe Station House Officerwas in the nature ofnarration of what, according to SR, he had been told by the accused. Such a letterwould constitute a statement for the purpose of s.
162, Cr.P.C. The prohibition contained in s. 162, Cr.P.C.
relatesto all statements made, during the course of an investigation.The prohibition relating to the use of a statement made to a police officer during the course of an investigation could not be set at naught by the police officer not himself recording the statement of a personbut havingit in the form of a communication addressed by a person concerned to the police officer.If a statement made by a person to a police officer inthe course of an investigationis inadmissible except for the purpose mentioned in s. 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in s. 1162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement. The restriction placed by s. 162on the use of statement made during the course of investigation is in general terms. There is nothing inthe sectionto show that the investigation must relate toany particular accused before astatement tothe police pertaining to that accused can be held to be inadmissible.
The letter is, therefore, inadmissible in evidence. [732C-E;
G] Sita Ram v. State of Uttar Pradesh, [1966] Supp. S.C.R. 165 held inapplicable.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of 1973.
Appealby special leave from the judgment andorder dated the 13th July 1972 of the High Court of Himachal Pradesh at Simla in Criminal Appeal No. 31 of 1970 and Murder Reference No. 21 of 1970.
72 4 Yogeshwar Prasa , for the appellant.
H. R. Khanna and M. N. Shroff, for the respondent.
The Judgment of the, Court was delivered by KHANNA, J. Kali Ram (40) was tried in the court of Sessions Judge Simla & Sirmur Districts for an offence under section 302 Indian Penal Code for causing the death of Dhianu(60) and the latter’s daughter Nanti (40). Charge wasalso framedagainstthe accused under section 392 readwith section 397 Indian Penal Code for having at the time ofthe occurrence committed robbery.The learned Sessions Judge convicted the accused under section 302 Indian Penal-Code and sentenced him to death. On appeal and reference,the High Court of Himachal Pradesh affirmed the convictionand the sentence of death.The accused thereafter came up to this Court in appeal by special leave.
The prosecution case is that Dhianu deceased was suffering from leprosy.This diseasehad resulted in partially destroying the hands and feet of Dhianu. For about a couple of months before the present occurrence. Nanti, daughter of Dhianu,had been staying with him in his housein village Amrahi.There was no other house near the house of Dhianu.
Dhianudid business of money lending on thesecurity of ornaments.
The accused, it is stated, is a previous convict having been convicted in cases under sections 380, 454 and457 Indian Penal Code in the years, 1955, 1957, 1960, 1962 and 1963.
He was sentenced to undergo various terms of imprisonment in those cases. The last sentence of imprisonment- undergone by the accused was from December 17, 1963 toNovember 7, 1967 on which day he was released from Central Jail Nahan.
On August 1, 1968 the police presented a challan against the accused under section 1 10 of the Code of Criminal Procedure in the court of District Magistrate Naban. Notice under section112 of the Code of CriminalProcedure wasthen issuedto the. accused. Itwas served upon himfor September 16., 1968. As the. notice was not received back, the District Magistrate adjourned the case toOctober16, 1968 and thereafter to November 6, 1968.
On 13 Asuj, which corresponds to September 28, 1968, it is stated,the accused went at evening time to the shop of Parma Nand (PW 14) in village Paliara, at adistance of three or four miles from the house of Dhianu.The accused spent the night with Parma Nand. On the morning of 14 Asuj, corresponding to September 29, 1968, the accused gave Rs. 18 to Parma Nand for purchase of liquor and fish. Fishwas thereafter purchased by Parma Nand. The accused and Parma Nand took liquor and fish on the evening of 14Asuj.The accusedthen told Parma Nand that he had to meet Dhianu of village Amralu and that Parma Nand should serve the evening meals to him. After taking his meals, the accused leftfor the house of Dhianu deceased. The way to village Amrahi of Dhianu was shown to the, 725 accusedby, Parma Nand. At about mid-night hour onthat night the accused shouted to Parma Nand from outside.the shop.Parma Nand asked the accused to comein butthe latterreplied thathe hadsome work. The accused thereafter went away.
Dhianu deceased had two nephews, Hira Singh (PW 1) and Mehru (PW 10), who lived in village Lohara at a distance of half a mile from, the house of Dhianu. On October 1,1968 Mehru went to a Gharat (flour ginding place). On the wayback Mehru did not see the cattle of Dhianu grazing in the field.
On reaching home, Mehru told his brother Hira Singh that he had not seen Dhianu’s cattle.Hira Singh andMehruthen went to the house of Dhianu and found Dhianu and Nanti lying murdered in the courtyard of their house. The dead bodies were covered with cloth. On removing the cloth, Hira Singh and Mehru noticed injuries on the heads of Dhianu and Nanti.
The bodies were in a state of decomposition. The door of the residential roomwas open and the goodswere lying scattered. Hira Singh informed PW 31 Udey Singh, Pradhan of the Gram Panchyat about what he had seen. On the advice of the Pradhan, Hira Singh went with village chowkidar to policestation Renuka, at a distance of six miles fromthe place of occurrence, and lodged there report PA at 1 a.m. on October 2, 1968. On the following morning ASI Mohd. Sardar (PW 49) accompanied by Hira Singh arrived at the place of occurrence. Sub Inspector Attar Singh, who was awayfrom the police station at the time the report was,lodged atthe police station, on learning of the occurrence, also reached the place of occurrence at about 9 a.m. on October 2, 1968.
Sub Inspector Attar Singh prepared inquest reports PB and PC relating to the dead bodies of Dhianu and Nanti. Thedead bodieswere thereafter sent to Civil Hospital Renuka where post mortem examination was performed by Dr. N. C. Jain(PW 43) on October 3, 1968.
The case of the prosecution further is that on November22, 1968 at 9.15 a.m. Kedar Nath (PW 2), who was in those days a clerk in Government High School, Tikri Dasakna, went tothe shop of one Mulak Raj for buying some goods. Near that shop Kedar Nath saw the accused, who was having a gun withhim.
The accused called Kedar Nath and asked him to write, a letter on his behalf to the Deputy Commissioner. MulakRaj then told Kedar Nath that the accused was a dangerousman and that Kedar Nath should write the letter asdesired by the accused. Kedar Nath then told the accused ‘that hehad to go to the school and that he would write the letter after takingthe permissionof the Head Master.The accused thereupon remarked that the Head Master was nobody andthat the accused would shoot him. Kedar Nath was at thattime carrying a notebook. At the dictation of the accused, Kedar Nath wrote a22-pageletter on behalf ofthe accused addressed to the Deputy Commissioner Nahan. In the course of that letter, the accused referred to the previous cases in which he had been convicted. as wellas tothe proceedings under section 110 of the Codeof Criminal Procedure pending against him.According to the accused, he had been directed by police Sub Inspector to report twice at, the police, station. Theaccused, however, toldthe Sub Inspector that it was difficult for him to do so. The 726 accusedtried to meet the Deputy Commissioner at Nahanand the Chief Minister of Himachal Pradesh at Simla but could not do so. The accused felt that as he had no money and no one would be prepared to stand surety for him, he would have to go to jail.It was also mentioned by the accused that he had murdered Dhianu and Nanti because the accused hadbeen told that Dhianu had Rs. 30,000 to 40,000 with him. After gettingletterPD written from KedarNath,the accused appended his signature to it. The accused further told Kedr Nath not to disclosedie matter toany one andthat otherwise he would kill him (Kedar Nath).The accused thereafter went to the post office and sent the letter by registered post to the Deputy Commissioner Nahan. The said letter was received in the office of the Deputy Commissioner Nahan on November 27, 1968. No action was taken onthat letter.
On November 28, 1968, it is alleged, the accused metSahi Ram (PW 46).Sahi Ram is the son of the Lambardar of villageShalahan. Sahi Ram told the accused not to commit thefts.The accused then told Sabi Ram thatafter being released fromjail, he had been involved in acase under section1 10 of the Code of CriminalProcedure. Asthe accusedfelt that no one would stand surety for him and as he would have again to, go to jail for two or three years, he decided to commit such an offence as wouldbring money for his children. The accused added that he,bad learnt that Dhianu was a rich manand that theaccused had committed the murder of Dhianu and his daughter. According furtherto the confession made by the accused to SabiRam, the accused was served meals by Nanti and Dhianu when he went to their house.After Dhianu and Nanti had gone to sleep,the accused got up from his bed andthought of committing theft of the goods.Feeling then began to weigh with the accused that Dhianu, whowas sufferingfrom leprosy, would die of hunger. This circumstance induced the accused to kill Dhianu.Accordingly, the accused gave blows to Dhianu with a dhangra. Nanti then got up and, on seeing the injuries of Dhianu, she became unconscious. The accused then went inside the house of Dhianu and picked up a sword.
With that sword, he gave further blows an the head andneck of Dhianu. He, also gave blows with the sword to Nanti. It was further stated by the accused that be found Rs. 180 in cash and silver ware weighing about two or three kilograms.
Sahi Ram then wrote letter PEEE dated November 28, 1968 to the Station House Officer of police station Renuka wherein Sahi Ram apprised the Station House Officer of the extra judicial confession made by accusedto Sabi Ram,as mentioned above. Letter PEEE was received atthe police station on December 2, 1968. Sub Inspector Budh Ram (PW 50) then recorded the statement of Sabi Ram. On December20, 1968 Sub Inspector Attar Singh on receipt ofinformation went to village Minus.On the night between December 20-21, 1968 the SubInspector surrounded ahotelwhereinthe accusedwas stated to be present in village Minus.The, accusedwas arrested early on the morning of December21, 1968 from that hotel.A gun dhangra P9, currency notes of the value of Rs. 684 and some other articles were taken into possession from the accused.
727 The case, ofthe prosecution further is that silver ornaments and other articles belonging to Dhianu and Nanti deceased, as well as some ornaments which had been left with Dhianu as security: for the money lent by him were pawned by the accused to, various persons after thisoccurrence.
Those ornaments and articles were after the arrest ofthe accusedrecovered at the instance of the accused fromthe persons with whom they had been pawned.After the recovery of the ornaments, Shri Malhotra magistrate on being moved by the police, mixed the recovered ornaments with sonic other ornaments. Salkoo, husband of Nanti deceased, and one Zalmu identified the recovered ornaments as those which werewith the two deceased persons.
The accused in his statement under section 342 of theCode of Criminal Procedure denied the various allegationsmade againsthim.It was, denied by the accused that hehad stayedwith Parma Nand PW at his shop and that he hadgone from that shop towards the house of Dbianu. It wasalso denied by the accused that he had got letter PD written from Kedar Nath PW or that he had sent the same tothe Deputy Commissioner.The accused further denied having madeany confession to Sahi Ram. It was also denied by the accused that any ornaments had been recovered at his instance.The prosecution allegation about the recovery of dhangra from him was likewise denied by the, accused. According tothe accused, Sahi Ram PW and two others were, engaged withhim in doing the business of opium smuggling. Sahi Ram and one other person misappropriated goods worth Rs. 5000 whereupon there was a dispute between the accused and Sahi Ram.The accusedadded that he had been falsely implicated inthis case at the instance of Sahi Ram.
The trial court held that document PD wherein the. accused had made a confession about his having murdered Dhianuand Nanti had been voluntarily got written by theaccused. it was further held that the accusedhad made anoral confession about his guilt to Sahi Ram PW. Theprosecution allegation that the ornaments belonging to the deceased persons were found in possession of the accused and had been pawned by, him was also accepted by the trial court. It was also held by the trial court that the accused had stayed at the shop of Parma Nand in village Paliaraon theday preceding the occurrence and that he had gone from that shop towardsthe house of the deceased. The evidence of Parma Nand that the accused had shouted to him fromoutsidethe shop at mid-night hour and that he had thereafter goneaway was not accepted by the trial court.
On appeal and reference, the High Court upheld the finding of thetrial court with regard to theconfession ofthe accused contained in letter PD.The High Court also agreed with the trial court that the accused had made confession to Sahi Ram as contained in Sahi Ram’s letter PEEE. The, High Court furtherupheldthe findings of thetrial court regarding the stay of the accused with Parma Nand before the occurrence. The High Court agreed with the trial court that the evidence of Parma Nand regardingthe shout ofthe accused at mid-night hour from outside the shop could not be accepted. The 728 High Court, however, disagreed with the trial court regarding itsfindings of the possessionof silver ornaments, belonging to the two deceased persons bythe accusedafter the occurrence.As regards therecovery of dhangra, the High Court held that the same was not shown to have been recovered from the possession of the accused.
In appeal before us, Mr. Yogeshwar Prasad has assailedthe findings of the High Court on the basis of which theHigh Court arrived at theconclusion ofthe, guilt ofthe accused. It has been urged that the evidenceadduced in support of those findings is innately unconvincing and it is not safe to base the conviction of the accused on a capital chargeupon such evidence. As against that, Mr. Khanna on behalfof the State has supported the findings of theHigh Court and hasurgedthat no casehas been madefor interference with those findings.
It cannot be disputed that Dhianu and Nanti were the victims of a murderous assault. Dr. Jain, who performed thepost mortemexamination onthe two deadbodies, foundthe following two injuries on the body of Dhianu:
“Injury (1). A sharp wound injury overthe left side of the skull. Injury over the scalp is running from outer angle of the left eye to the middle of the, forehead, reaching I” above the hair line. The whole socket of theleft eye is ruptured, frontal bone and part ofthe parietal bone are completely fractured around the course of the wound.Wound is 5-1/2 broad and ” above the left eye.Scalp and skull is completely separated from the line of wound due to decomposition. Whole cranial cavity is seen through the wound. Whole of brain matter and meanings have sloughed out.Eye ball is also eaten up.
(2) A sharp wound over the forehead running from the bridge of the nose going towardsthe right frontal prominence. Wound is 4-1/2″ long tapering at both the ends and I” wide in the centre of the wound. Margins are even.
Bones around the Wound arecompletely fractured. Maggots from the wound comingand going out. The rest of the parts of thebody were normal except that they were in a state as described above.” The following three injuries were found on the body of Nanti:
“A sharp wound over the scalp, startingfrom foreheadon right side 1/4 from upper margin of middle of right eye ,to, the right parietal bone on the same side- Wound isendingnear the middle of parietal bone. Wound is 7-1/2″ long and tapering at both the ends. Wound is I” apartat the prominence of the right frontal bone. Skull underneath the wound is completely fractured. Due to this, injury, whole in= bones of right eye and bones ofthe bridge of noseis, completelyfractured.
Pieces of bonesare clearly seen inthe hollow of the skull. And one can nicelypeep into 729 the hollow of skull by making wound apart by fingers.Margins of the wound are even.
(2) A sharp cut wound of 8″ size, starting from 1-1/2″ above the middle of lefteye having a semilunar shape, reaching to the most prominent part of the, occipital bone. Wound is tapering at both theends, margins are even. Scalp and skull is completely apart.
Skull during the course of wound is completely fractured and depressed at the places.
(3) Neck injury. Adeep sharp wound starting from the right angle of the mandible to the middle of the neck and reaching to I” short of laryngeal prominence, wound is 2-1/2″ deep at the angle of the mandible and tapering towards the middle of neck. All underlying structures, nerves, arteries, veins arecut, laryngeal prominence is also fractured Wound is 3″ long and 1/2″ broad.” According to Dr. Jain, the injuries on the bodies of Dhianu and Nanti had been caused with a heavy sharp weapon.The injuries were sufficient in the ordinary course of nature to cause death.
The case of the prosecution is that the injuries to Dhianu and Nanti deceased were caused by the accused.The accused has, however, denied this allegation. In order to bring the charge home to, the accused, the prosecution led evidence on a number of points. The High Court accepted the prosecution allegation in this respect and. based its conclusionupon the following three pieces of evidence :
(1) Theevidence of Parma Nand thatthe accused had stayed with him on September29, 1968 and had on the evening ofthatday proceeded towards the house of Dhianu deceased after he had been shown the way by Parma Nand.
(2) The confession of the accused contained in letter PD.
(3) Theextra judicial confession made by the accused to Sahi Ram incorported in letter PEEE.
We may first deal with the deposition of Parma Nand (PW 14).
The depositionconsists of three parts. Thefirstpart relatesto the stay of the accused with Parma Nand athis shop in village Paliara on September 28 and 29, 1968when some fish and liquor are stated to have been taken bythe accused and Parma Nand.This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime.The second part of the deposition is to the effect that the accused on the evening of September 29, 1968 told Parma Nand that he had to go to the house of Dhianu and that Parma Nand showed at the instance of theaccusedthe way which leads to the house of Dhianu at adistance of three or four miles from the shop of Parma Nand. We find it difficult to accept this part of the deposition of Parma Nand. Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murdered. It would, therefore, follow that Parma Nand came to know’ of 730 the murder of Dhianu and Nanti on or about October 4, 1968.
Had the accused left for the house of Dhianu deceased on the evening of September 29, and had Parma Nand PW come toknow that Dhianu and Nanti were murdered in theirhouse,this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused.Parma Nand, however,kept quiet in the matter and did not talk of it. The statement of Parma Nand was recorded by the police on December11, 1968. If a witness professes to knowabouta gravely incriminating circumstance against a person accused ofthe offence of murder and the witness keeps silent for overtwo months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. No cogent reason has been shown to us as to why Parma Nand kept quiet for overtwo months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the, house ofthe deceased shortly before the murder. We are, therefore,not prepared to place any reliance upon the second part ofthe deposition of Parma Nand. The third part of the deposition of Parma Nand PW pertains to the shout of the accused from outsidethe shop of Parma Nand at about mid-night hour on the night of occurrence. This part of the depositionhas not been accepted by the trial court and the High Courtand we find no valid reason to take a different view.
Coming to the confession of the accused, which is alleged to be incorporated in letter PD, we findthat the question which arises for consideration is whether the letter sent by the accused to the Deputy Commissioner contained confession about his having murdered Dhianu and Nanti. The fact that a registered letter purporting to be from theaccusedwas received in the office of the Deputy Commissioner cannot be disputed. The controversy before us has, however, ranged on the point whether the letter contained any confession regarding the murder of Dhianu and Nanti by the accused or whetherthat portion of the letter has beensubsequently inserted. Inthis respect we find that letter PD is on loose leaves. It is only the first leaf of the letter which bears the stamp of the office of the Deputy Commissioner, while the remaining leaves have not been stamped. Inthe circumstances,it was not difficult to replace or addsome other leaves. According to PW Sundar Singh, who was working as postmaster at Kurag during the relevant days, the letter addressed bythe accused to the DeputyCommissioner consisted of 18 or 19 pages.Letter PD produced atthe trial consists of 22 pages. PW 21 Mehta, Superintendent of Deputy Commissioner’s office, has deposed that on receipt of letterPD, he read that letter. An entry was then made in the diary that letter PD related to the subject ofjail dispute. Hadthe letter addressed by the accused tothe DeputyCommissioner contained confession about a double murder committed by the accused, it is difficult to believe that the Superintendent of Deputy Commissioner’s office would have after reading the letter kept quiet andnot brought it to the notice of the authorities concerned.The fact that no action was taken on the letter till itwas taken into possession by the police on January 1, 731 1969 lends support to the contention that letter PD did not contain the confession.The portion of the letter relating to theconfession is also somewhat incongruous withthe entire tenor and context ‘of the letter. The letter appears to have been sent by the accused to the DeputyCommissioner to show that after his release fromjail in 1967,the accused had turned a new leaf and he wanted the DeputyCom- missioner to give him help and relief so thatthe accused might rehabilitate himself and support his family. It is not likely that a person asking for relief would-make a confession that afterhis release from jail, hehas committed two murders.
The circumstances in which the accused is stated to have got letterPD written from Kedar Nath (PW 2) arealso rather peculiar. According to Kedar Nath, the accused compelled Kedar Nath at the point of gun to write that letter.The accused also told Kedar Nath not to disclose the contents of the letter toany one. It is not clear asto whythe accused should ask Kedar Nath to keep the matter secret when he was himself, according to letter PD, making a confession about his having committed the crime of two murders. Apart from that, if Kedar Nath came to know on November 22,1968 that the accused had committed the murder ofDhianuand Nanti, his failure to make any statement IQ the policetill December 24, 1968 regarding the confession made bythe accused to the witness would deprive his evidence of much of its value. We, therefore, find it difficult to act upon the confession incorporated in letter PD.
The last piece of evidence upon which the High Courthas maintained theconviction of the accused consists ofthe confession of the accused contained in letter PEEE sent by Sahi Ram (PW 4) to the Station House Officer Renuka.The first question which arises for consideration in respect of letterPEEE is whether it is admissible in evidence.
Section162 of the Code of Criminal Procedure readsas, under :
162. (1) No statement made by any person to a police officerin the course of.an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be usedfor any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence, under inve stigation it the time when such statement was made :
providedthat when any witness is calledfor the prosecution in such inquiry or trial whose statementhas been reduced intowriting as aforesaid, any part of his statement, ifduly proved, may be used by the accused, andwith the permissionof the Court, bythe prosecution to contradict such witness inthe manner provided by Section 145 of the Indian EvidenceAct, 1872 and when any part ofsuch statement is 732 so used, any part thereof may also be, used in the re-examination of such witness, butfor the purpose only of explainingany matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling withinthe provisions of Section 32, clause (1) ofthe Indian Evidence Act, 1872, or toaffectthe provisions of Section 27 of that Act.” Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub-section (1), or for the purposes mentioned in sub-section (2) with which we are not concerned in the present case. Theprohibition contained in the section relates to all statementsmade duringthe course of an investigation.LetterPEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been toldby the accused. Sucha letter, inour opinion, wouldconstitute statement for thepurpose of section162 of the Code ofCriminal Procedure.The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statementof a person but having it in the form of a communication addressed by the person concerned tothe police officer.If a statement made by a person to a police officerin the course of an investigation is inadmissible, exceptfor the purposes mentioned in section 162, thesame would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition containedin section 162 bythe investigating officer obtain a written statement of a person instead of the investigating officer himself recordingthat statement.
It has been argued by Mr. Khanna on behalf of the State that at thetime letter PEEE was addressed by Sahi Ram tothe police, no investigation had been made by the police against the accused and, as such, the aforesaid letter cannot be held to be inadmissible. This contention, in our opinion, is wholly devoid of force.The restriction placed by section162 on the use of statement made during the course ,of investigation is in general terms.There is nothing in the section to show that the investigation must relate to any particularaccused before a statement tothe police pertaining to that accused can be held to be inadmissible.
Reference has been made by Mr. Khanna to the case ofSita Ram v.State of Uttar Pradesh(‘) wherein it was held by majority that a letter addressed by the accused to asub- inspector of police containing his confession wasnot inadmissible under section 25 of the Indian EvidenceAct.
There is nothing in the aforesaid judgment to show thatthe letter in question had been written during the course of the (1) [19661 Supp. S. C. R. 265.
733 investigation of the case. As such, this Court in that cast did not consider the question as to whether the letter in question wag inadmissible under section 162 of the Code of Criminal Procedure. As such, the State cannot derivemuch help from that authority.
We would, therefore, hold that letter PEEE isinadmissible in evidence.
Although letter PEEE has been held by us to beinadmissible we would still have to deal with the oral deposition of Sahi Ram that the,accused had made a confessionto him on November 28, 1968. The version of the accused inthis respectis that Sahi Ram is inimical to him as he had a dispute with him because of some misappropriation committed by Sahi Ram in connection with the smuggling of opium.
According to Sahi Ram, he happened to meet theaccused on November 28, 1968 when the accused made a confession tohim about his having committed the murder of Dhianu and Nanti.
The story about the gratuitous confession made bythe accusedto Sahi Ram,in our opinion, hardly inspires confidence. It is not the case of the prosecution thatthe policewas after the accused and that the accused inthat connection went to Sahi Ram to seek his helpand made a confession tohim. Sahi Ram is theson of a village lambardar. Ithas been argued on behalf of the accused- appellant that the police, with a view to see that the crime relating to the murder of Dhianu and Nanti might not remain untraced, utilised the services of Sahi Rain for bringing in the evidence regarding the extra-judicial confession ofthe accused. Looking to all the circumstances we findthis contention tobe not devoid of allforce.Mr. Khanna submits that both the trial court and the HighCourthave accepted the evidenceof Sahi Ramand we shouldnot interfere with the concurrent finding in this respect.We find it difficult to accede to this submissionbecause we find that both the trial court as well as theHigh Court were influenced by the fact that Ex. PEEE was admissible in evidence. Asletter PEEE has been held by usto benot admissible andas we find that the statement of SahiRam about the extra-judicial confessionis otherwise also lackingin credence, there should not arise any difficulty in this Court disaggreeing with the above finding ofthe trial court and the High Court.
Mr. Khanna on behalf of the State has also tried to assail the finding of the High Court regarding the possession of silver ornaments of the two deceased persons by the accused.
In ouropinion, the finding of the High Court inthis respectis based upon the appraisement of theevidence on record and there is no valid ground to disturb it.
Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(‘) to which reference has been made during arguments were not intended to make a departure from the rule ofthe presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases.One of the cardinal principles which has always to be kept in view in our system (1) Cr. App.Ho.26 of 1970 decided on August 27, 1973 734 of administration of justice for criminal cases is that a personarraigned as an accused is presumed tobe innocent unlessthat presumption is rebutted by the prosecution by production of evidence as may show him to be guilty ofthe offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a findingof the guilt of the accused.Thereare certain cases in which statutory presumptions arise regardingthe guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn.
Once those facts are shown by the prosecution to exist,the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut thepresumption.
The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought onthe record consistent with the innocence of the accused whichmay reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
Leaving aside the cases of statutory presumptions, theonus is upon the prosecution to prove the differentingredients of the offence and unless it discharges that onus,the prosecution cannot succeed.The court may,of course, presume, as mentioned in section 114 of the Indian Evidence Act, the existence of any fact which it thinks likely to have happened,regard being had to the common course of naturalevents, humanconduct and public and private business. in their relation to the facts of the particular case.The illustrations mentioned in that section, though taken from different spheres of humanactivity, arenot exhaustive. They are based upon human experience andhave to be applied in the context of the facts of each case.The illustrations are merely examples of circumstances in which certainpresumptions may be made. Other presumptions of a similar kind in similar circumstances can be made underthe provisions ofthe section itself Whetheror not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets.The raw material here is far too complex to be susceptibleof precise and exact propositionsfor exactness here is a fake.
Anothergoldenthread which runs through theweb ofthe administrationof justice in criminal cases is that iftwo views are possible on the evidence adduced in the case,one pointing to the guilt of the accused and the other tohis innocence, theview which is favourable tothe accused shouldbe adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.Rulehas accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis ofthe guilt of the accused and is inconsistent with that ofhis innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit ofthat doubt.Of course, the doubt regarding the guilt ofthe accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences.
The rule regarding the benefit of doubt also doesnot warrantacquittal of the accused by resort to surmises, conjectures or fanciful considerations.As mentioned by us recently in the case of State of Punjab v. Jagir Singh,(‘) a criminal trial is not like a fairy tale wherein one isfree to give flight to one’s imaginationand phantasy.It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged.Crime is an event in real life and isthe product of interplay of different human emotions. In arriv- ing at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the sametime reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.
It needs allthe same to be re-emphasisedthat if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused.
The courts would not be justified in withholdingthat benefit because the acquittal might have an impact uponthe law and ordersituation or create adversereaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believehim to be guilty but whether his guilt hasbeen established by the evidence brought on record.Indeed,the courtshave hardly any otheryardstick ormaterial to adjudgethe guilt of the person arraignedas accused.
Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict inthis respect, in our opinion, is more apparent than real.As observed on page 3 of the book entitled “TheAccused” by J.A. Coutts 1966 Edition, “When once it is realised, however, thatthe public interest is limited tothe conviction, not of the guilty, but of those proved guilty, so that the functionof the prosecutor islimited to securing the conviction only of those who canlegitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established.
In the case of an accused who is innocent, orwhose guilt cannotbe proved. the public interest and theinterest of the accused alike require an acquittal.” It is no doubt true that wrongful acquittals are undesirable and shake theconfidence of the people in the judicial system,much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more (1) Cr. App. 7 of 1972 decided on August 6, 1973 7 3 6 seriousand its reverberations cannot but befelt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing furthercan undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jailand undergoesthe sentence, thescars left by the miscarriageof justice cannot be erased by any subsequent act of expidation.Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring.
as faras possible,that there should beno wrongful conviction ofan innocent person.Some risk ofthe conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether.It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of “The Proof of Guilt” by Glanville Williams, Second Edition:
“I dare say some sentimentalists would assent to the proposition that it is better that a thousand,or even a million, guilty persons should escape than that one innocent person should suffer;but no responsible and practicalpersonwould accept such a view.
For it is obvious that if our ratio is extendedindefinitely, there comes a point when the whole system of justicehas broken down and society is in a state of chaos.” The fact that there has to be clear evidence of the guilt of the accused and that in the absence of thatit isnot possible to record a finding of his guilt wasstressed by this Court in the case of Shivaji Sahabrao Bobade &Anr.
(supra) as is clear from the following observations :
“Certainly it is a primary principle thatthe accused must be and not merely may be guilty before acourt can convict andthe mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations”.
As a result of the above, we accept the appeal, set aside the judgmentsof the. trial court and the High Courtand acquit the accused.
P.B.R.
Appeal allowed.
