Full Judgment Text
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PETITIONER:
KALI RAM
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH
DATE OF JUDGMENT24/09/1973
BENCH:
KHANNA, HANS RAJ
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.
HEADNOTE:
One of the cardinal principles which has always to be kept
in view in our system of administration of justice for
criminal cases is that a person arraigned as an accused is
presumed to be innocent unless that presumption is rebutted
by the prosecution by production of evidence as may show him
to be guilty of the 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 finding of the guilt of the
accused. There are certain cases in which statutory
presumptions arise regarding the 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 the presumption. 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 on the record consistent with the
innocence of the accused which may reasonably be true, even
though it is not positively proved to be true, the accused
would be entitled to acquittal. [733 H; 734 C]
Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his
innocence, the view which is favorable to the accused should
be adopted. This principle has a special relevance in cases
where the guilt of the accused is sought to be established
by circumstantial evidence. Rule ha,-. accordingly been
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laid down that unless the evidence adduced in the case is
consistent only with, the hypothesis of the guilt of the
accused and is inconsistent with that of his innocence, the
court should refrain from recording a finding of guilt of
the accused. It is also an accepted rule that in case the
court entertains reasonable doubt regarding the guilt of the
accused, the accused must have the benefit of doubt. Of
course, the doubt regarding.the guilt of the 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 does not warrant
acquittal of the accused by resort to surmises, conjectures
or fanciful considerations. As mentioned by this Court in
the case or Slate of Punjab v. Jagir Singh, (Crl. A. No. 7
of 1972 d/ August 6, 1973) a criminal trial is not liked a
fairy tale wherein one is free to give flight to one’ In
arriving at the conclusion about the guilt of the
imagination and phantasy. accused charged with the evidence
by the yardstick of witnesses. Every case own facts.
Although the. to the accused the courts commission of a
crime, the court has to judge the of probabilities, its
intrinsic worth and the animu, in the final analysis would
have to depend upon it benefit of every reasonable doubt sh-
uld be given should not at the same time reject evidence
which is ex facie trustworthy or grounds which are fanciful
or in the nature of conjec [734-G-H; 735A-D]
It needs all the sameto be re-emphasised that if a
reasonable doubt arise regarding the guilt of theaccused,
the benefit of that cannot be withheld from the accused.
The courts would not be Justified in withholding the benefit
be cause the acquittal might have an impact upon the law and
order situation or create adverse reaction in society or
amongst those members of the society who believe the accused
to be guilty. The guilt of the accused has to be
723
adjudged not by the fact that a vast number of people
believe, him to be guilty but whether his guilt has been
established by the evidence brought on record. Indeed, the
courts have hardly any other yardstick or material to
adjudge the guilt of the person arranged as accused. It is
no doubt true that wrongful acquittals are undesirable and
shake the confidence of the people in the judicial system,
much worse, however, is the wrongful conviction of an
innocent person. The consequence of the conviction of an
innocent person are far more serious and its reverberations
cannot but be felt in a civilised society. [735D-F; H]
Shivaji Sahabrao Bobade & anr. v. State of Maharashtra, Cr.
A. No. 26 of 1970 dated 27-8-73, referred to.
The appellant was convicted under s. 302 Indian Penal Code
and sentenced to death. The High Court maintained the
conviction and sentence. The High Court relied on three
pieces of evidence viz.; (i) evidence of a witness which was
recorded by the police over two months after the occurrence;
(ii) the letter written by the accused to the Deputy
Commissioner making a confession and (iii) the confession
made to S.R. who incorporated this in a letter to the
Station House Officer.
Allowing the appeal to this Court,
HELD : that the judgment of the trial court and the High
Court had to be .set aside and the accused acquitted. [736F]
( 1) If a witness professed to know about a gravely
incriminating circumstance against a person accused of the
offence of murder and the witness kept silent for over two
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months regarding the said incriminating circumstance against
the accused, his statement relating to the incriminating
circumstances, in the absence of any cogent reason, 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 and the
circumstances in which the accused is stated to have got the
letter written-all these make it unsafe to act upon the
confession incorporated in the letter. [730H]
(3) The letter which was addressed by SR to the Station
House Officer was in the nature of narration of what,
according to SR, he had been told by the accused. Such a
letter would constitute a statement for the purpose of s.
162, Cr.P.C. The prohibition contained in s. 162, Cr.P.C.
relates to 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 person but
having it 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 in the course of an
investigation is 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. 162 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
particular accused before a statement to the 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.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of
1973.
Appeal by special leave from the judgment and order 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 was also
framed against the accused under section 392 read with
section 397 Indian Penal Code for having at the time of the
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 conviction and
the sentence of death. The accused thereafter came up to
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this Court in appeal by special leave.
The prosecution case is that Dhianu deceased was suffering
from leprosy. This disease had 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 house in village
Amrahi. There was no other house near the house of Dhianu.
Dhianu did business of money lending on the security of
ornaments.
The accused, it is stated, is a previous convict having been
convicted in cases under sections 380, 454 and 457 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 to November 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
section 112 of the Code of Criminal Procedure was then
issued to the. accused. It was served upon him for
September 16., 1968. As the. notice was not received back,
the District Magistrate adjourned the case to October 16,
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 a distance 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. Fish was
thereafter purchased by Parma Nand. The accused and Parma
Nand took liquor and fish on the evening of 14 Asuj. The
accused then 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 left for
the house of Dhianu deceased. The way to village Amrahi of
Dhianu was shown to the,
725
accused by, Parma Nand. At about mid-night hour on that
night the accused shouted to Parma Nand from outside. the
shop. Parma Nand asked the accused to come in but the
latter replied that he had some 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 way back
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 and Mehru then
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 room was open and the goods were 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
police station Renuka, at a distance of six miles from the
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 away from
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the police station at the time the report was,lodged at the
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. The dead
bodies were 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 November 22,
1968 at 9.15 a.m. Kedar Nath (PW 2), who was in those days a
clerk in Government High School, Tikri Dasakna, went to the
shop of one Mulak Raj for buying some goods. Near that shop
Kedar Nath saw the accused, who was having a gun with him.
The accused called Kedar Nath and asked him to write, a
letter on his behalf to the Deputy Commissioner. Mulak Raj
then told Kedar Nath that the accused was a dangerous man
and that Kedar Nath should write the letter as desired by
the accused. Kedar Nath then told the accused ’that he had
to go to the school and that he would write the letter after
taking the permission of the Head Master. The accused
thereupon remarked that the Head Master was nobody and that
the accused would shoot him. Kedar Nath was at that time
carrying a notebook. At the dictation of the accused, Kedar
Nath wrote a 22-page letter on behalf of the 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 well as to the
proceedings under section 110 of the Code of Criminal
Procedure pending against him. According to the accused, he
had been directed by police Sub Inspector to report twice
at, the police, station. The accused, however, told the
Sub Inspector that it was difficult for him to do so. The
726
accused tried to meet the Deputy Commissioner at Nahan and
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 had been
told that Dhianu had Rs. 30,000 to 40,000 with him. After
getting letter PD written from Kedar Nath, the accused
appended his signature to it. The accused further told Kedr
Nath not to disclose die matter to any one and that
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 on that
letter.
On November 28, 1968, it is alleged, the accused met Sahi
Ram (PW 46). Sahi Ram is the son of the Lambardar of
village Shalahan. Sahi Ram told the accused not to commit
thefts. The accused then told Sabi Ram that after being
released from jail, he had been involved in a case under
section 1 10 of the Code of Criminal Procedure. As the
accused felt 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 would bring money
for his children. The accused added that he, bad learnt
that Dhianu was a rich man and that the accused had
committed the murder of Dhianu and his daughter. According
further to the confession made by the accused to Sabi Ram,
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 and thought of
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committing theft of the goods. Feeling then began to weigh
with the accused that Dhianu, who was suffering from
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 and neck
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 accused to Sabi Ram, as
mentioned above. Letter PEEE was received at the police
station on December 2, 1968. Sub Inspector Budh Ram (PW 50)
then recorded the statement of Sabi Ram. On December 20,
1968 Sub Inspector Attar Singh on receipt of information
went to village Minus. On the night between December 20-21,
1968 the Sub Inspector surrounded a hotel wherein the
accused was stated to be present in village Minus. The,
accused was arrested early on the morning of December 21,
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, of the 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 this occurrence.
Those ornaments and articles were after the arrest of the
accused recovered at the instance of the accused from the
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 were with
the two deceased persons.
The accused in his statement under section 342 of the Code
of Criminal Procedure denied the various allegations made
against him. It was, denied by the accused that he had
stayed with Parma Nand PW at his shop and that he had gone
from that shop towards the house of Dbianu. It was also
denied by the accused that he had got letter PD written from
Kedar Nath PW or that he had sent the same to the Deputy
Commissioner. The accused further denied having made any
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 to the
accused, Sahi Ram PW and two others were, engaged with him
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
accused added that he had been falsely implicated in this
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 Dhianu and
Nanti had been voluntarily got written by the accused. it
was further held that the accused had made an oral
confession about his guilt to Sahi Ram PW. The prosecution
allegation that the ornaments belonging to the deceased
persons were found in possession of the accused and had been
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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 Paliara on the day
preceding the occurrence and that he had gone from that shop
towards the house of the deceased. The evidence of Parma
Nand that the accused had shouted to him from outside the
shop at mid-night hour and that he had thereafter gone away
was not accepted by the trial court.
On appeal and reference, the High Court upheld the finding
of the trial court with regard to the confession of the
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 further upheld the findings of the trial 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 regarding the shout of the
accused at mid-night hour from outside the shop could not be
accepted. The
728
High Court, however, disagreed with the trial court
regarding its findings of the possession of silver
ornaments, belonging to the two deceased persons by the
accused after the occurrence. As regards the recovery 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 assailed the
findings of the High Court on the basis of which the High
Court arrived at the conclusion of the, guilt of the
accused. It has been urged that the evidence adduced in
support of those findings is innately unconvincing and it is
not safe to base the conviction of the accused on a capital
charge upon such evidence. As against that, Mr. Khanna on
behalf of the State has supported the findings of the High
Court and has urged that no case has been made for
interference with those findings.
It cannot be disputed that Dhianu and Nanti were the victims
of a murderous assault. Dr. Jain, who performed the post
mortem examination on the two dead bodies, found the
following two injuries on the body of Dhianu:
"Injury (1). A sharp wound injury over the
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 the left
eye is ruptured, frontal bone and part of the
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 towards the
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 are completely
fractured. Maggots from the wound coming and
going out. The rest of the parts of the body
were normal except that they were in a state
as described above."
The following three injuries were found on the
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body of Nanti:
"A sharp wound over the scalp, starting from
forehead on right side 1/4 from upper margin
of middle of right eye ,to, the right parietal
bone on the same side- Wound is ending near
the middle of parietal bone. Wound is 7-1/2"
long and tapering at both the ends. Wound is
I" apart at 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 of the
bridge of nose is, completely fractured.
Pieces of bones are clearly seen in the
hollow of the skull. And one can nicely peep
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 left eye
having a semilunar shape, reaching to the most
prominent part of the, occipital bone. Wound
is tapering at both the ends, 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. A deep 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 are cut,
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 conclusion upon
the following three pieces of evidence :
(1) The evidence of Parma Nand that the
accused had stayed with him on September 29,
1968 and had on the evening of that day
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) The extra 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 deposition consists of three parts. The first part
relates to the stay of the accused with Parma Nand at his
shop in village Paliara on September 28 and 29, 1968 when
some fish and liquor are stated to have been taken by the
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
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told Parma Nand that he had to go to the house of Dhianu and
that Parma Nand showed at the instance of the accused the
way which leads to the house of Dhianu at a distance 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 to know
that Dhianu and Nanti were murdered in their house, 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 December 11,
1968. If a witness professes to know about a gravely
incriminating circumstance against a person accused of the
offence of murder and the witness keeps silent for over two
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 over two months
after coming to know of the murder of Dhianu and Nanti about
the fact that the accused had left for the, house of the
deceased shortly before the murder. We are, therefore, not
prepared to place any reliance upon the second part of the
deposition of Parma Nand. The third part of the deposition
of Parma Nand PW pertains to the shout of the accused from
outside the shop of Parma Nand at about mid-night hour on
the night of occurrence. This part of the deposition has
not been accepted by the trial court and the High Court and
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 find that 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 the accused was
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
whether that portion of the letter has been subsequently
inserted. In this 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. In the
circumstances, it was not difficult to replace or add some
other leaves. According to PW Sundar Singh, who was working
as postmaster at Kurag during the relevant days, the letter
addressed by the accused to the Deputy Commissioner
consisted of 18 or 19 pages. Letter PD produced at the
trial consists of 22 pages. PW 21 Mehta, Superintendent of
Deputy Commissioner’s office, has deposed that on receipt of
letter PD, he read that letter. An entry was then made in
the diary that letter PD related to the subject of jail
dispute. Had the letter addressed by the accused to the
Deputy Commissioner 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 and not
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brought it to the notice of the authorities concerned. The
fact that no action was taken on the letter till it was
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 the confession is also somewhat incongruous with the
entire tenor and context ’of the letter. The letter appears
to have been sent by the accused to the Deputy Commissioner
to show that after his release from jail in 1967, the
accused had turned a new leaf and he wanted the Deputy Com-
missioner to give him help and relief so that the accused
might rehabilitate himself and support his family. It is
not likely that a person asking for relief would-make a
confession that after his release from jail, he has
committed two murders.
The circumstances in which the accused is stated to have got
letter PD written from Kedar Nath (PW 2) are also 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 to any one. It is not clear as to why the
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 of Dhianu and
Nanti, his failure to make any statement IQ the police till
December 24, 1968 regarding the confession made by the
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 Court has
maintained the conviction of the accused consists of the
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
letter PEEE is whether it is admissible in evidence.
Section 162 of the Code of Criminal Procedure reads as,
under :
162. (1) No statement made by any person to a
police officer in 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 used for 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 :
provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the Court, by the
prosecution to contradict such witness in the
manner provided by Section 145 of the Indian
Evidence Act, 1872 and when any part of such
statement is
732
so used, any part thereof may also be, used in
the re-examination of such witness, but for
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the purpose only of explaining any matter
referred to in his cross-examination.
(2) Nothing in this section shall be deemed
to apply to any statement falling within the
provisions of Section 32, clause (1) of the
Indian Evidence Act, 1872, or to affect the
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. The prohibition
contained in the section relates to all statements made
during the course of an investigation. Letter PEEE 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 told by the accused. Such a letter, in our
opinion, would constitute statement for the purpose of
section 162 of the Code of Criminal 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 statement of a person but having it in the form of a
communication addressed by the person concerned to the
police officer. If a statement made by a person to a police
officer in the course of an investigation is inadmissible,
except for the purposes mentioned in section 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 section 162 by the
investigating officer obtain a written statement of a person
instead of the investigating officer himself recording that
statement.
It has been argued by Mr. Khanna on behalf of the State that
at the time letter PEEE was addressed by Sahi Ram to the
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
section 162 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 particular accused before a statement to the police
pertaining to that accused can be held to be inadmissible.
Reference has been made by Mr. Khanna to the case of Sita
Ram v. State of Uttar Pradesh(’) wherein it was held by
majority that a letter addressed by the accused to a sub-
inspector of police containing his confession was not
inadmissible under section 25 of the Indian Evidence Act.
There is nothing in the aforesaid judgment to show that the
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 derive much
help from that authority.
We would, therefore, hold that letter PEEE is inadmissible
in evidence.
Although letter PEEE has been held by us to be inadmissible
we would still have to deal with the oral deposition of Sahi
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Ram that the, accused had made a confession to him on
November 28, 1968. The version of the accused in this
respect is 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 the accused on
November 28, 1968 when the accused made a confession to him
about his having committed the murder of Dhianu and Nanti.
The story about the gratuitous confession made by the
accused to Sahi Ram, in our opinion, hardly inspires
confidence. It is not the case of the prosecution that the
police was after the accused and that the accused in that
connection went to Sahi Ram to seek his help and made a
confession to him. Sahi Ram is the son of a village
lambardar. It has 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 of the
accused. Looking to all the circumstances we find this
contention to be not devoid of all force. Mr. Khanna
submits that both the trial court and the High Court have
accepted the evidence of Sahi Ram and we should not
interfere with the concurrent finding in this respect. We
find it difficult to accede to this submission because we
find that both the trial court as well as the High Court
were influenced by the fact that Ex. PEEE was admissible in
evidence. As letter PEEE has been held by us to be not
admissible and as we find that the statement of Sahi Ram
about the extra-judicial confession is otherwise also
lacking in credence, there should not arise any difficulty
in this Court disaggreeing with the above finding of the
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 our opinion, the finding of the High Court in this
respect is based upon the appraisement of the evidence 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 of the 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
person arraigned as an accused is presumed to be innocent
unless that presumption is rebutted by the prosecution by
production of evidence as may show him to be guilty of the
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
finding of the guilt of the accused. There are certain
cases in which statutory presumptions arise regarding the
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 the presumption.
The onus even in such cases upon the accused is not as heavy
as is normally upon the prosecution to prove the guilt of
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the accused. If some material is brought on the record
consistent with the innocence of the accused which may
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, the onus
is upon the prosecution to prove the different ingredients
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
natural events, human conduct 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 human activity, are not
exhaustive. They are based upon human experience and have
to be applied in the context of the facts of each case. The
illustrations are merely examples of circumstances in which
certain presumptions may be made. Other presumptions of a
similar kind in similar circumstances can be made under the
provisions of the section itself Whether or 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 susceptible of precise and exact propositions for
exactness here is a fake.
Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance
in cases wherein the guilt of the accused is sought to be
established by circumstantial evidence. Rule has
accordingly been laid down that unless the evidence adduced
in the case is consistent only with the hypothesis of the
guilt of the accused and is inconsistent with that of his
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 of that
doubt. Of course, the doubt regarding the guilt of the
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 does not
warrant acquittal 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 is free
to give flight to one’s imagination and 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 is the
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
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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 same time reject
evidence which is ex facie trustworthy, on grounds which are
fanciful or in the nature of conjectures.
It needs all the same to be re-emphasised that 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 withholding that
benefit because the acquittal might have an impact upon the
law and order situation or create adverse reaction 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
believe him to be guilty but whether his guilt has been
established by the evidence brought on record. Indeed, the
courts have hardly any other yardstick or material to
adjudge the guilt of the person arraigned as accused.
Reference is sometimes made to the clash of public interest
and that of the individual accused. The conflict in this
respect, in our opinion, is more apparent than real. As
observed on page 3 of the book entitled "The Accused" by
J.A. Coutts 1966 Edition, "When once it is realised,
however, that the public interest is limited to the
conviction, not of the guilty, but of those proved guilty,
so that the function of the prosecutor is limited to
securing the conviction only of those who can legitimately
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, or whose guilt
cannot be proved. the public interest and the interest of
the accused alike require an acquittal."
It is no doubt true that wrongful acquittals are undesirable
and shake the confidence 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
serious and its reverberations cannot but be felt in a
civilized society. Suppose an innocent person is convicted
of the offence of murder and is hanged, nothing further can
undo the mischief for the wrong resulting from the unmerited
conviction is irretrievable. To take another instance, if
an innocent person is sent to jail and undergoes the
sentence, the scars left by the miscarriage of 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 far as possible, that there should be no wrongful
conviction of an innocent person. Some risk of the
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
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should suffer; but no responsible and
practical person would accept such a view.
For it is obvious that if our ratio is
extended indefinitely, there comes a point
when the whole system of justice has 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 that it is not
possible to record a finding of his guilt was stressed 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 that the
accused must be and not merely may be guilty
before a court can convict and the 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 judgments of the. trial court and the High Court and
acquit the accused.
P.B.R.
Appeal allowed.
737