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TMI Blog1955 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... sections 302 and 447 of the Indian Penal Code for the murder of Aher Jetha Sida. It is not necessary at the moment to set out the facts. It is enough to say that the High Court based its conviction on a retracted confession plus certain circumstances which the learned Judges regarded as corroborative. The learned Sessions Judge excluded the confession on the ground that it was neither voluntary nor true. The learned Judge's reasoning about its falsity is weak. We do not think there is material on which a positive finding about its falsity can be reached but *hen he says that he is not satisfied that it was made voluntarily we find it impossible to hold that is a view which a judicial mind acting fairly could not reasonably reach. The facts about that are as follows. The offence was committed during the night of the 18th/19th May 1952. The police were informed on the 19th morning at 9-30. The police station was only 4 miles distant and they started investigation immediately. The appellant was arrested on the 20th. He says in his examination under section, 342, Criminal Procedure Code, that three other persons were also arrested but were later released. They are Bhura, Dewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k-up which the Magistrate who recorded the confession (P.W. 21) gives us: A police guard is on 24 hours duty at the Bhanwad Judicial lock-UP. The prisoner is so placed within the compound wall that he can see the police all the 24 hours through the bars and can talk. These police officers are under the police Sub-Inspector. A peon is working as warder. He stays there on duty by day. At night he is not there. Clerk Jailor does not remain present there. The police lock-up is within the ail itself. Inside the jail gate is the police lock-up. The police can go into the police lock- up when they choose . Now the appellant repudiated his confession at the earliest opportunity. He told the Committing Court on 12-12-1952 in a written statement that- After my arrest by the police I was sent to jail. At night time the police, having arrived at the jail, threatened me to make confession before Court as they directed. The police frightened me with beating if I did not confess. As a result of which, through fright, I have made a false confession as directed by the police and which I now deny . And in his examination under section 342, Criminal Procedure Code, he said- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verlook is the fact that this control is only effective during the day and that at night neither the peon nor the clerk is there; and even during the day the clerk-cum-jailor does not remain present there . The appellant said in his written statement that at night time the police, having arrived at the jail, threatened me, etc . There is nothing on the record to displace this statement. Had the Sub-Inspector or some policeman been examined as a witness and had the appellant omitted to cross-examine him about this, that might have raised an inference that what the accused said was only an afterthought. But here we find that this defence about the involuntary nature of the confession due to threats by the police was raised at the outset, even in the Committing Magistrate's Court, and was persisted in throughout and the appellant did what he could to build up this part of his case by cross examining the only official witness who did appear, namely the Magistrate who recorded the confession; and he succeeded in establishing that there was ample opportunity for coercion and threat. The fact that this defence was raised in the Committal Court should have put the prosecution on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an if they did not avail themselves of such a chance. If the confession is excluded, then there is not, in our opinion, sufficient evidence against the appellant on which a conviction can be based. It will now be necessary to set out the facts. The murdered man is one Jetha. He married Sunder, P.W. 3, about three years before he was killed, but we gather that she had not gone to live with her husband; anyway, she was living in the appellant's village Shiva with her people at the time of the occurrence and this afforded the pair opportunities for a long continued course of illicit amours, chances which it seems they were not slow to seize. The husband lived in a village Kalawad which is three miles distant. At the time of the murder arrangements were being made for Sunder to go to her husband and preparations for the ceremonial appropriate to such occasions were in the course of progress. The prosecution case is that this was resented by the appellant who wanted the girl for himself; so he went to the husband's village Kalawad on the night of the 18th/ 19th and murdered him with an axe which the prosecution say belongs to him and which they say he later produced. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, it is wholly consistent with innocence. A reasonable doubt arises and the appellant is entitled to its benefit. Next comes the evidence of Samant, P.W. 16, who says that be saw the appellant that night on the outskirts of Kalawad where the murder was committed. He was wearing a false beard and a mask. That of course is an important piece of evidence but the danger of mistaking the identity of a man so disguised at night cannot be disregarded, especially as this witness qualified his statement at the end of his cross-examination by saying: The person was just like him . It is evident to us that his statement about identity is not based on his recognition of the appellant but on the fact that he saw a man who looked like the appellant and so, when he found that the appellant was under suspicion, he inferred that the man must have been the appellant. But that is the very question that the Court has to decide. The only fact that this witness can be said to prove is that be saw a man that night wearing a false beard and mask who looked like the appellant. Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lood could easily be transferred to an article like an axe without anybody noticing or knowing. The important thing in a case like this, where everything is now seen to hang on this one fact, would be the extent of the blood and its position. The postmortem reveals that the injuries were incised and that the bleeding was profuse. If therefore there was blood all along the cutting edge and around it, that would have been a strong circumstance; but if there was only a small smear of blood, say, on the back of the axe and none on or near the edge, then that would have been a circumstance for complete exoneration. When everything hangs on this one point, we cannot assume without proof that stains which might be compatible with either guilt or innocence must have been of what we might term the guilty kind. On a careful examination of the evidence in this case, we are not satisfied that the circumstances disclose strong and compelling reasons to set aside the acquittal. The appeal is allowed. The conviction and sentence are set aside and the appellant is acquitted. VENKATARAMA AYYAR J.- I regret I am unable to agree with the judgment just delivered. The appellant belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h his guilt consisted of a confession made by him to the Magistrate, the recovery of the axe and the false beard, and the existence of strong motive. There was, besides, a considerable body of evidence that on the 18th May the appellant was haunting the village of Shiva where Sunder was residing, with an axe in his hand and threats in his tongue. The assessors were unanimously of the opinion that the appellant was guilty, but the Sessions Judge disagreed with them, and held that the confession was neither true nor voluntary, and that though there were strong grounds for suspecting him, the evidence was not sufficient to convict him, and so acquitted him. There was an appeal against this judgment by the State to the High Court of Saurashtra. The learned Judges, differing from the Sessions Judge, held that the confession was true and voluntary, that there was ample corroboration thereof in the evidence, and that even apart from it, the other facts proved by 'the prosecution were sufficient to establish the guilt of the appellant. They accordingly set aside the order of acquittal passed by the Sessions Judge, convicted the appellant under section 302 and sentenced him to transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice of a serious and substantial character has occurred. A mere mistake on the part of the Court below., as for example, in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below . In Taba Singh v. Emperor( [1924] I.L.R. 48 Bom. 515.) , Lord Buckmaster observed that the responsibility for the administration of criminal justice rested with the courts in India, and that the Board would not interfere unless there has been some violation of the principles of justice or some disregard of legal principles . In George Gfeller v. The King(A.I.R. 1943 P.C. 211. ), which was an appeal from the Supreme Court of Nigeria, Sir George Rankin observed: Their Lordships have repeated ad nauseam the statement that they do not sit as a Court of Criminal Appeal. For them to interfere with a criminal sentence there must be something so irregular or so outrageous as to shock the very basis of justice: per Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against . The preceding article referred to in the opening passage is clearly article 134. Article 134(1) confers a right of appeal to this Court in certain cases, in terms unqualified, on questions both of fact and of law, and if the scope of an appeal under article 136 is to be extended likewise to questions of fact, then article 134(1) would become superfluous. It is obvious, that the intention of the Constitution in providing for an appeal on facts under articles 134(1) (a) and (b) was to exclude it under article 136, and it strongly supports the conclusion reached in Pritam Singh v. The State([1950] S.C.R. 453, 458.) that like the Privy Council this, Court would not function as a further court of appeal on facts in criminal cases. Having regard to the principles enunciated in this decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 61 I.A. 398, 403, 404.), the question was raised for determination by the Privy Council whether there was any legal basis for the limitation which the above decisions had placed on the right of the State to appeal under section 417. Answering it in t e negative, Lord Russell observed that there was no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate tribunal , that no distinction was drawn between an appeal from an order of 'acquittal and an- appeal from a conviction , and that no limitation should be placed upon that power unless it be found expressly stated in the Code .. He went on to remark at page 404 that, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witness, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who bad the advantage of seein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple and depends on the credit which attached to one or other of conflicting witnesses........ In making these observations their Lordships have no desire to restrict the discretion of the Appellate Courts in India in the consideration of evidence . It is clearly these principles that Lord Russell had in mind when he made the observations at page 404 in Sheo Swarup v. King-Emperor [1915] L.R. 42 I.A. 110; 118.') quoted above, and that will be clear from the observation next following: To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice . The scope of the decision in Sheo Swarup v. King Emperor([1934] L.R. 61 I.A.398.) with special reference to the observations discussed above was thus explained by the Privy .Council in Nur Mohammad v. Emperor(A.I.R.1945 P.C. 151.): Their Lordships were referred, rightly enough to the decision of this Board in the case in Sheo Swarup v. King-Emperor([1934] L.R. 61 I.A. 398), and in particular to the passage at p. 404 in the judgment delivered by Lord Russell. Their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a conclusion different from that of the trial court. If so understood, the expression compelling reason s would be open to no comment. Neither would it be of any special significance in its application to appeals against acquittals any more than appeals against conviction. But the expression has been quoted in later judgments, especially of the courts below, as if it laid down that in appeals against acquittal, the standard of proof required of the appellant was far higher than what the law casts on appellants in other appeals, and as the words compelling reasons are vague and indefinite to a degree, the result has not seldom been that even when Judges hearing appeals under section 417 were convinced of the guilt of the accused, they refrained from setting aside the order of acquittal owing to the dark and unknown prohibition contained in the expression. That is the impression which I have formed in the appeals which have come before me. in this Court. There is always a danger in taking a phrase, attractive and telling-in its context, out of it, and erecting it into a judicial formula as if it laid down a principle universal in its application. And this danger is all the greate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate court should consider in deciding an appeal, there was no reason to think that the High Court had failed to take all proper matters into consideration in arriving at their conclusions of fact . In Nur Mohammad v. Emperor(A.I.R 1945 P.C. 151.), the judgment of the High Court did not disclose that it had considered the matters mentioned by Lord Russell at page 404 in Sheo Swarup v. King-Emperor([1934] L.R. 61 I.A. 398.). Nevertheless, the Privy Council dismissed the appeal observing: In the present case the High Court judgment shows that they have been at pains to deal in detail with the reasons given by the Sessions Judge for disbelieving the group of witnesses, the Patwari and the other three alleged eye- witnesses. They have dealt in detail with them, showing on the face of their judgment that there is no necessity to presume in this case that they have not done their duty.... These decisions are authorities for the position that when in an appeal under section 417 the court considers the evidence and comes to its own conclusion the findings recorded by it are not, even when they result in a reversal of the order of acquittal, open to interference in special ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not prepared to accept this statement and observed: Accused admits that this is his axe. In light of chemical analysis, there is no doubt that there were stains of human blood on the axe. It is also mentioned in the Pancbnama, Ex. 21 itself that the Panch had suspected that there were marks of human blood on this axe . But all the same, he discounted the value of this evidence, because according to him, in view of certain circumstances the presence of human blood on the axe is by no means conclusive , and that at best it raises a suspicion against the accused . Those circumstances are three: Firstly, the panch who witnessed the recovery at Katkora belonged to Kalawad, and the criticism is that a local panch ought to have been got to witness the same. The learned Judges of the High Court did not think much of this criticism, as the recovery at Katkora had to be made in pursuance of the statement given by the appellant at Kalawad, and the police might have reasonably thought that the same panch should be present at both the places. As the Sessions Judge has accepted the evidence of the panch that there were blood stains at the time of the recovery of the axe, his criticism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find any justification in the evidence-an attitude which, I regret to say, is becoming a growing feature of judgments of subordinate Magistrates. When at the trial, it appears to the court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, when there is, as in this case, no reasonable basis for it in the evidence or in the circumstances. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefore. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration. It is the case of the prosecution that the appellant unearthed a false beard, which he had buried underneath a shami tree in Shiva, and that he had worn it at the time of the murder. The appellant did not deny the recovery, but stated that it was not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, the learned Judges came to a different conclusion. They considered that the possibility of threats having been uttered through the bars was too remote and unsubstantial to form the 'basis for any conclusion, and that all the circumstances indicated that the confession was voluntary. These are the salient points that emerge out of the evidence. The position may be thus summed up: (1) No special weight attaches to the findings of the Sessions Judge on the -around that they are based on the evidence of witnesses whom he had the advantage of seeing in the box, and believed. The oral evidence was all on the side of the prosecution, and that was substantially accepted by the Sessions Judge. His judgment is based on the probabilities of the case, and of them, the learned Judges were at least as competent to judge, as he. (2) The finding of the Sessions Judge in so far as it related to the recovery of bloodstained axe was clearly erroneous, as it did not follow on his reasoning. (3) As regards the confession, the conclusion of the Sessions Judge rests on nothing tangible, and is largely coloured by a general distrust of the police, not based on evidence or just ..... X X X X Extracts X X X X X X X X Extracts X X X X
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