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PETITIONER:

KASHMIRA SINGH

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH.

DATE OF JUDGMENT:

04/03/1952

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

FAZAL ALI, SAIYID

MUKHERJEA, B.K.

CITATION:

1952 AIR 159 1952 SCR 526

CITATOR INFO :

F 1952 SC 214 (28)

F 1956 SC 56 (5)

RF 1957 SC 216 (18)

R 1964 SC1184 (12)

F 1973 SC1204 (14)

R 1987 SC 955 (9)

ACT:

Indian Evidence Act (1 of 1872), ss. 3, 30--Confession

of co-accused--Evidentiary value--Evidence of

accomplice--Necessity of corroboration--Confession--Practice

of examining magistrate who recorded the confession.

HEADNOTE:

The confession of an accused person against a co-accused

is not evidence in the ordinary sense of the term. It does

not come within the meaning of evidence contained in sec. 3

of the Indian Evidence Act inasmuch as it is not required to

be given on oath, nor in the presence of the accused and

cannot be tested by cross-examination. It is a much weaker

type of evidence than the evidence of an approver which is

not subject to any of these infirmities.

Such a confession can only be used to tend assurance to

other evidence against a co-accused. The proper way to

approach a case of this kind is, first, to marshal the

evidence against the accused excluding the confession alto-

gether from consideration and see whether, if it is be-

lieved, a conviction could safely be based on it. If it is

capable of belief independently of the confession, then it

is not necessary to call the confession in aid. But cases

may arise where the judge is not prepared to act on the

other evidence as it stands even though, if believed, it

would be sufficient to sustain a conviction. In such an

event the judge may call in aid the confession and use it to

lend assurance to the other evidence and thus fortify him-

self in believing what without the aid of the confession he

would not be prepared to accept.

Bhuboni Sahu v. The King (76 I.A. 147) relied upon.

Emperor v. Lalit Mohan Chuckerbutty (38 Cal. 559 at 588) and

In re Periyaswami Moopan (I.L.R. 54 Mad. 75) referred to.

A conviction can be based on the uncorroborated testimo-

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ny of an accomplice provided the judge has the rule of

caution, which experience dictates, in mind.

Rameshwar v. State of Rajasthan [1952] S.C.R. 377 referred

to.

The rule of caution is that save in exceptional circum-

stances one accomplice cannot be used to corroborate anoth-

er, nor can he be used to corroborate a person who though

not an accomplice is no more reliable than one.

It is not proper or desirable for the prosecution to

examine as a witness the magistrate who recorded the confes-

sion,

527

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 53

of 1951. Appeal by special leave from the Judgment and

Order dated the 8th June 1951 of the' High Court of Judica-

ture at Nagpur (Hemeon and Rao JJ.) in Criminal Appeal No.

297 of 1950, arising out of the Judgment and Order dated the

11 th September 1950 of the Court of the Additional Sessions

Judge of Bhandara in Sessions Trial No. 25 of 1950.

Bakshi Tek Chand, (Gopal Singh, with him) for the appellant.

S. K. Kapoor, for the respondent.

1952. March 4. The Judgment of the Court was delivered by

BOSE J.--The appellant Kashmira Singh has been convicted

of the murder of one Ramesh, a small boy aged five, and has

been sentenced to death. He was granted special leave to

appeal. Three other persons were tried along with him. They

were his brother Gurudayal singh, his nephew Pritipalsingh

(son of Gurudayal), a boy of eleven, and one Gurubachan-

singh. Gurudayal and pritipal have been acquitted. Guruba-

chansingh confessed and was convicted. He was also sentenced

to death. He has not appealed here.

The murder was a particularly cruel and revolting one

and for that reason it will be necessary to examine the

evidence with more than ordinary care lest the shocking

nature of the crime induce an instinctive reaction against a

dispassionate judicial scrutiny of the facts and law.

The prosecution case is this. The deceased Ramesh was

the son of P.W. 48 L.P. Tiwari who was the Food Officer at

Gondia at the relevant date. The appellant Kashmira Singh

was an Assistant Food Procurement Inspector there. On the

1st of July, 1949, Tiwari found the appellant and Harbilas

(P.W. 31) getting rice polished at a certain rice mill. At

that date the polishing of rice was prohibited by a State

law. Tiwari accordingly reported the matter to the Deputy

Commissioner of Bhandara. He suspended the

528

appellant and later his services were terminated by an order

of the State Government with effect from the 7th of July.

The orders were communicated on the 17th of November. This

embittered the appellant who on at least two occasions was

heard to express a determination to be revenged.

In pursuance of this determination he got into touch

with the confessing accused Gurubachan singh and enlisted

his services for murdering the boy Ramesh.

On the 26th of December, 1949, festivities and religious

ceremonies were in progress all day in the Sikh Gurudwara at

Gondia. The boy Ramesh was there in the morning and from

there was enticed to the house of the appellant's brother

Gurudayalsingh and was done to death in a shockingly revolt-

ing fashion by the appellant, with the active assistance of

Gurubachansingh, in the middle of the day at about 12 or

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12-30. The body was then tied up in a gunny bag and rolled

up in a roll of bedding and allowed to lie in Gurudayal's

house till about 7 p.m.

At 7 p.m. the body wrapped as above was carried by

Gurubachan on his head to a chowkidar's hut near the Sikh

Gurudwara. The appellant accompanied him. The map, Exhibit

P-18A, shows that the distance along the route indicated was

about half a mile to three quarters of a mile. It was left

there till about midnight.

Shortly before midnight the appellant and Gurubachan

engaged the services of a rickshaw coolie Shambhu alias

Sannatrao, P.W. 14. They took him to the chowkidar's hut,

recovered the bundle of bedding and went in the rickshaw to

a well which appears from the map, Exhibit 1'-18A, to be

about half a mile distant. There the body was thrown into

the well. ]hat in brief is the prosecution ease.

Gurubachan's confession has played an important part

in implicating the appellant, and the question at once

arises, how far and in what way the confession of an accused

person can be used against a co-accused ? It is evident that

it is not evidence in the ordinary

529

sense of the term because, as the Privy Council say in

Bhuboni Sahu v. The King(1)

"It does not indeed come within the definition of"

'evidence' contained in section 3 of the Evidence Act., It

is not required to be given on oath, nor in the presence of

the accused, and it cannot be tested by crossexamination."

Their Lordships also point out that it is

"obviously evidence of a very weak type......... It is a

much weaker type of evidence than the evidence of an approv-

er, which is not subject to any of those infirmities."

They stated in addition that such a confession cannot be

made tile foundation of a conviction and can only be used in

"support of other evidence." In view of these remarks it

would be pointless to cover the same ground, but we feet it

is necessary to expound this further as misapprehension

still exists. The question is, in what way can it be used in

support of other evidence ? Can it be used to fill in miss-

ing gaps ? Can it be used to corroborate an accomplice or,

as in the present case, a witness who, though not an accom-

plice, is placed in the same category regarding credibility

because the judge refuses to believe him except in so far as

he is corroborated ?

In our opinion, the matter was put succinctly by Sir

'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty(2)

where he said that such a confession can only be used to

"lend assurance to other evidence against a co-accused "or,

to put it in another way, as Reilly J. did in In re Periyas-

wami Moopan(3)-

"the provision goes no further than this--where there

is evidence against the co-accused sufficient, if believed,

to support his conviction, then the kind of confession de-

scribed in section 30 may be thrown into the scale as an

additional reason for believing that evidence."

(1) [1949] 76 I.A. 147 at 155. (3) [1931] I.L.R. 54 Mad.

75 at 77.

(2) [1911] I.L.R. 38 CAl. 559 at 588.

530

Translating these observations into concrete terms they

come to. this. The proper way to approach a case of this

kind is, first, to marshal the evidence against the accused

excluding the confession altogether from consideration and

see whether, if it is believed, a conviction could safely be

based on it. If it is capable of belief independently of the

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confession, then of course it is not necessary to call the

confession in aid. But cases may arise where the judge is

not prepared to act on the other evidence as it stands even

though, if believed, it would be sufficient to sustain a

conviction. In such an event the judge may call in aid the

confession and use it to lend assurance to the other evi-

dence and thus fortify himself in believing what without the

aid of the confession he would not be prepared to accept.

Then, as regards its use in the corroboration of accom-

plices and approvers. A co. accused who confesses is natu-

rally an accomplice and the danger of using the testimony of

one accomplice t0 corroborate another has repeatedly been

pointed out. The danger is in no way lessened when the

"evidence" is not on oath and cannot be tested by cross-

examination. Prudence will dictate the same rule of caution

in the case of a witness who though not an accomplice is

regarded by the judge as having no greater probative value.

But all these are only rules of prudence. So far as the law

is concerned, a conviction can be based on the uncorroborat-

ed testimony of an accomplice provided the judge has the

rule of caution, which experience dictates, in mind and

gives reasons why he thinks it would be safe in a given case

to disregard it. Two of us bad occasion to examine this

recently in Rameshwar v. The State of Rajasthan(1). It

follows that the testimony of an accomplice can in law be

used to corroborate another though it ought not to be so

used save in exceptional circumstances and for reasons

disclosed. As the Privy Council observe in Bhuboni Sahu v.

The King(2):--

"The tendency to include the innocent with the guilty

is peculiarly prevalent in India, as judges have

(1) [1952] S.C.R. 377. (2) (1949) 76 I A.147 at

157.

531

noted on innumerable occasions, and it is very difficult for

the court to guard against the danger......... The only

real safeguard against the risk of condemning the innocent

with the guilty lies in insisting on independent evidence

which in some measure implicates such accused."

Turning now to the facts of the present case. The

evidence on which the prosecution relies, apart from the

confession, is this :--

(1) Previous association between Gurubachan and the

appellant.

The only evidence about this is P.W. 23 Upasrao, a water

carrier. He speaks of three meetings and is curiously

definite about days of the week and times though he did not

know on what day of the week diwali fell nor could he give

the names of anybody else he met on those occasions. Howev-

er, for what it is worth. he says he saw them talking (1)

three weeks before the murder, (v) on the 24th and (3) on

the 25th. They spoke in Punjabi which he does not under-

stand, but on the second occasion he heard them mention the

name of Ramesh. Two of these meetings, namely the first and

the third tally with two of the only three meetings de-

scribed in the confession. It is proved that the witness did

not disclose these facts to the police but despite that the

Sessions Judge believed him because of the confession. The

High Court appear to have disbelieved him, for in paragraph

37 of the judgment the learned judges point out that he is

contradicted by his own statement to the police. There his

story was that the three brothers met and not Gurubachan and

the appellant. This evidence can therefore be disregarded

and consequently the confession cannot be used to prove

previous association.

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It was argued however that if it is proved that the

appellant helped in disposing of the body after the murder,

then their previous association can be inferred because one

would hardly seek the assistance of a stranger for a task

like that. That has some force but the weakness of that in

this case lies on the fact that,

532

according to the prosecution case, as disclosed in the

confession, Gurubachan was a stranger to Gondia. i He had

come there only six weeks before the murder and did not meet

the appellant till three weeks later and then only casually.

Their second meeting, equally casual, was on the 21st, that

is, five days before the murder, and on that date the appel-

lant is said to have disclosed his intention to this strang-

er whom he had only met once before. It is true this strang-

er knew the appellant's brother, but how ? The brother was a

travelling ticket inspector on the railway and used to allow

Gurubachan to travel without a ticket, presumably because he

was also a Sikh. If probabilities are to be called in aid,

the story disclosed in the confession has distinct weakness-

es, particularly as Gurubachan's assistance was wholly

unnecessary. If the confession is true there was a well

thought out plot timed with the precision almost of a minor

military operation. At a given moment the nephew Pritipal

was to decoy the deceased away from his companions and

isolate him. Then, after leading him several hundred yards

down the road, hand him over to Gurubachan. Gurubachan was

to take him down to point No. 6 on the map well over half a

mile from the spot where he took over from Pritipal. In the

meanwhile, the appellant was to walk another half mile at

right angles to Gurubachan's course to the point No. 15 to

hire a cycle. From there he was to cycle close on a mile to

point No. 6 and meet Gurubachan and the boy. As the learned

High Court Judges, who made a spot inspection, point out,

the route would lie through a crowded bazaar locality. From

point No. 6 Gurubachan was to hand over the child to the

appellant who was to cycle with him close on a mile to his

brother Gurudayal's quarters, point No. 16, through this

same crowded bazaar. In the meanwhile, Gurubachan was to

walk back to his house (No. 17) and pick up a chisel and a

piece of wire for the purpose of the murder and rejoin the

appellant at Gurudayal's house. As will be seen, the timing

would have to be within fairly close tolerances. Then, at

the murder itself, what

533

assistance did Gurubachan give ? Nothing which a grown man

could not easily have accomplished him- self on a small

helpless victim of five. The appellant

could have accomplished all this as easily without the,.

assistance of Gurubachan, and equally Gurubachan, a mere

hired assassin, could have done it all himself without the

appellant running the risk of drawing pointed attention to

himself as having been last seen in the company of the boy.

We hold that previous association of a type which would

induce two persons to associate together for the purposes of

a murder is not established.

(2) That the deceased Ramesh was in the Gurudwara

about 9-30 or 10 in the morning of the 26th. This is not

disputed.

(3) That Kashmira Singh who had gone to the Gurudwara

in the morning was absent between 11 A.M. and 12-45 P.M.

That the appellant was at the Gurudwara in the morning

is not disputed, in fact his case is that he was there the

entire day. The evidence to prove that he left it between

these hours consists of three persons: P.W. 30 Atmaram, P.W.

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35 Tilakchand and P.W. 5 Bisan.

The prosecution story is that the appellant left the

Gurudwara about 11 A.M. to go to the shop of P.W. 5 Bisan to

hire a cycle. He was first seen by P.W. 35 Tilakehand, a

wood stall keeper, at point No. 13, just near the Gurudwara.

The witness places the time at about 10-30 or 11 A.M. He

says he saw him coming from the direction of the railway

station and going past his stall. Fifteen minutes later, he

went past his stall again in the opposite direction, that is

to say, towards the railway station which lies on his way to

the cycle shop.

Next comes P.W. 30 Atmaram He keeps a bookstall on the

broad gauge platform of the Gondia Railway Station. He says

he saw the appellant coming from the bridge and going to-

wards the Railway Police

69

534

Station of all places in the world. He came near ,enough

the witness to wish him good day. He places 'the time at

about 10-30 or 11. The only comment we make on this witness

is that he says he used to see the appellant at the station

almost every day and they used to greet each other. The

possibility that the witness is mixing up this day with one

of the other days cannot be excluded. It is certainly a

matter for comment that a would be murderer on his way to

hire a cycle for the purpose and keep an assignment with his

accomplice and victim should go out of his way and either go

on to or very near the railway platform to greet a person he

knows there and then walk away towards the police station of

all places where the danger of recognition would be strong.

Next there is P.W. 5 Bisan, the man in charge of the

cycle shop. He speaks from his register and says the appel-

lant hired a cycle from him on that day at 11-20 A.M. and

returned it at 12-45 P.M. The Sessions Judge and the High

Court lay great stress on this witness.

But as against this is the evidence of Anupsingh Bedi,

D.W. 1, a respectable disinterested witness, who is a resi-

dent of Nagpur. He says he saw the appellant at the Gurudwa-

ra at 11 and again "about 11-45 A.M." The sessions Judge

thought he was interested because he admits he reported a

complaint he had received from Gurudayalsingh, to the effect

that the appellant was being harassed by the police and that

they threatened to arrest ladies also, to the Inspector

General of Police and the Home Minister. He explained that

as head of the Sikh community in that State he felt bound to

pass on these complaints to the highest authorities. We are

unable to regard this as disclosing interest. There is no

suggestion that what he did was improper and we are of

opinion he did nothing more than any man of responsibility

in his position would have done. The High Court has not

criticised him. The learned Judges merely say that he may be

mistaken as to the time; nor of course does he suggest that

he is giving more than a mere estimate. All he

535

says is that, "It may have been about 11-45 A.M. by this

time."

We do not think there is much in all this. Nobody,

except P.W. 5 Bisan, pretends to be exact and when one is

guessing at the time several days after the event there

really is not much discrepancy between 11-20 and 11-45. Even

if it was 11-45 there would still have been sufficient time

to commit the murder. As two Courts have believed the evi-

dence on this point without calling in aid the confession,

we are not prepared to depart from our usual rule regarding

concurrent findings of fact. We will therefore accept the

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position that the appellant was absent from the Gurudwara

long enough to enable him to commit the murder. We will

also take into consideration the fact that he made a false

statement on this point when he said he was not away at all.

(4) Disposal of the body.

The rest of the evidence relates to the disposal of the body

and the only direct evidence connecting the appellant with

this, apart from the confession, is that of Sannatrao P.W.

14, the rickshaw coolie. He does not bring the appellant

into the picture till about midnight. Now this coolie is a

very shaky witness. We cannot but note the remarkable

series of coincidences which emerge from his testimony.

First, he is not a rickshaw coolie at all. He merely hap-

pened to hire a rickshaw that night, and he told the police

that this was the first time he had ever done that at night

after. a day's work. Next, he knew the appellant because he

happened to be a chowkidar in the Food Office at Gondia at

the same time that the appellant was there as a Food Inspec-

tor. But at the date of the incident neither was still in

service, so by a somewhat strange coincidence the appellant

happens to hire, for the first time, this old co-worker in

the middle of the night who, in his turn, happened to hire,

also for the first time at night, a rickshaw for which he

had no licence. Next comes a still stranger coincidence. He

is taken to within a few paces of his own house and the body

536

is dumped, in his presence, into a welt, a stone's throw

from where he lives. Gurubachan tells us that earlier in

the day, about 7 P.M., he (Gurubachan) had carried, unaided,

the "bedding" on his head for a distance which we know was

hail to three quarters of a mile, namely from Gurudayal's

house to the chowkidar's hut. Despite this, the two are

said to have engaged this rickshaw coolie to carry it just

hall a mile (a shorter distance) to the well and there they

threw it in in the man's presence; and none of this was

disclosed to the police till a month later, namely the 17th

of January, though the witness was present when the body was

recovered and though he was questioned on three previous

occasions.

We do not doubt that a rickshaw was used because rick-

shaw tracks were discovered by the well long before anybody

had suggested that a rickshaw had been used. But we find it

difficult to resist the inference that this witness was an

accomplice so far as the disposal of the body was concerned.

Consequently, he is in much the same category so far as

credibility is concerned, That brings us at once to the

rule that save in exceptional circumstances one accomplice

cannot be used to corroborate another, nor can he be used to

corroborate a person who though not an accomplice is no more

reliable than one. We have therefore either to seek corrobo-

ration of a kind which will implicate the appellant apart

from the confession or find strong reasons for using Guruba-

chan's confession for that purpose. Of course, against

Gurubachan there is no difficulty, but against the appellant

the position is not as easy.

We will therefore examine the reliability of Guruba-

chan's confession against the appellant. Now there are some

glaring irregularities regarding this confession and though

it was safe for the Sessions Judge and the High Court to act

on it as against Gurubachan because he adhered to it

throughout the sessions trial despite his pleader's efforts

to show the contrary, a very different position emerges when

we come to the appellant.

537

The first point which emerges regarding this is that the

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confession was not made till the 25th of February 1950, that

is to say, not until two months after the murder.

We do not know when Gurubachan was first interrogated

but P.W. 42 Narayandas tells us that when he was taken to

the police station house at Gondia for interrogation about

the 1st or 3rd January he saw Gurubachan sitting in the

police lock up. We do not know how long he was kept there

like this but it is evident that he was not there voluntari-

ly, at any rate till the 1st or 3rd. because the Station

Officer P.W. 44 says that "until Gurubachan Singh was ar-

rested he used to be allowed to go home." Also he says that

Gurubachan was interrogated several times and was confronted

with Pritipal.

However, eventually Gurubachan was allowed to go away

and he went to Balaghat. Then, on the 16th of February the

Station Officer P.W. 44 went to Balaghat, brought Gurubachan

back with him to Gondia and handed him over to the C.I.D.

Inspector Guha. Guha P.W. 50 tells us that from then till

the 20th of February, when he was arrested, he was kept

under observation but was allowed to go home at night. He

did not confess till the 25th and the Station Officer P.W.

44 tells us that from the 20th to the 25th he was kept in

one of the rooms in Guha's quarters. Then, after the confes-

sion on the 25th he was taken back to Guha's custody for a

couple of days and then only was he sent to the magisterial

lock up. (See Guha's evidence). He was kept in this lock up

till the conclusion of the committal proceedings, that is,

till the 30th of June, instead of being sent to jail custody

in Bhandara where there is a jail. The other accused includ-

ing Pritipal who had by then confessed were sent to Bhanda-

ra.

Now though Gurubachan was kept in the magisterial lock

up the distinction between the magisterial lock up and

police custody in Gondia is only

538

theoretical. In practice, it is no better than police

custody. Police constable Lalbahadur P.W. 55 tells us

that--

"The Station House Officer Gondia deputes constables for

duty in the lock up. The constables in charge take the

prisoners out to the latrine and also arrange for their

food...The Head Constable in fact is in charge."

Also, Guha admits that he interrogated Gurubachan in

the lock up twice within the ten days which succeeded the

confession. This is in disregard of the Rules and Orders

(Criminal) of the Nagpur High Court which enjoin at page 25,

paragraph 84, of the 1948 edition that --

"After a prisoner has made a confession before a a

magistrate he should ordinarily be committed to jail and the

magistrate should note on the warrant for the information of

the Superintendent of the jail that the prisoner has made a

confession."

No explanation has been given why these directions,

which were made for good reason, were disregarded in Guruba-

chan's case. As we have said, the other prisoners were all

committed to jail custody in the usual way, so there was no

difficulty about observing the rule. All this makes it

unsafe to disregard the rule about using accomplice testimo-

ny as corroboration against a non-confessing accused. None

of the judges who have handled this ease has given any

reason why this rule could safely be departed from in this

particular case. In the circumstances, we do not feel that

the confession by itself can be used to corroborate the

rickshaw coolie Sannatrao, P.W. 14. But there is other

corroboration. It consists of the sari border. and this is

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the next point on which the prosecution relies.

There is one argument about this confession advanced on

behalf of the appellant with which we shall have to deal.

The prosecution were criticised for not calling the magis-

trate who recorded the confession as a witness. We wish to

endorse the remarks of their

539

Lordships of the Privy Council in Nazir Ahrnad v. King

Emperor (1) regarding the undesirability of such a prac-

tice. In our opinion, the magistrate was rightly not called

and it would have been improper and undesirable for the

prosecution to have acted otherwise.

(5) Sari borders, Articles F, G, and T.

Articles F & G are two pieces of a sari border which were

used for tying up the mouth of the gunny bag, in which the

body was placed. The evidence about that is beyond doubt.

Article T is another piece of a sari border which was found

in the appellant's house on the 30th or December, 1949. It

is true the appellant was not present at the time but his

mother was there and it will be seen that it was seized on

the same day that the body was discovered. There is strong

proof that Articles F and G are a part of the same border as

Article T, and as there is a concurrent finding regarding

these facts we are not prepared to to take a different view.

That therefore affords corroboration of Sannatrao's evi-

dence and the confession can be called in aid to lend assur-

ance to the inference which arises from these facts, namely

that the appellant did help to dispose of the body. The

High Court and the Sessions Judge were accordingly entitled

to act on this evidence for establishing that particular

fact and we are not prepared to disturb their concurrent

conclusions. But the matter cannot be carried further

because, not only are the sari borders not proved to have

had any connection with the crime of murder but the confes-

sion shows that they did not. The only conclusion permissi-

ble on these facts is that the appellant, at some time which

is unknown, subsequent to the murder assisted either active-

ly or passively in tying up the gunny bag in which the

corpse was placed and that he then accompanied Gurubachan in

the rickshaw from the chowkidar's hut to the well in the

middle of the night.

(6) Coat, Article X, and Safa, Article Y,

(1) A.I.R. 1936 P.C. 253 at 258,

540

These were seized on the 20th of January 1950 from a trunk

in the house of the appellant's brother Gurudayalsingh.

The appellant's house is not in this neighbourhood. It

is some distance away in another part of the town. The coat

is a uniform coat of the kind worn by a Travelling Ticket

Inspector on the Railways. Gurudayal is a travelling Ticket

Inspector. The appellant is not. Here again the appellant

was not present when the seizures were made.

This coat and safa were recovered in the fourth search.

The first search was on the 30th of December 1949. The next

on the 10th of January 1950. The third on the morning of

the 20th and the fourth in the afternoon of the 20th. These

Articles were not found in the first three searches.

The Chemical Examiner reports that there is one minute

blood stain on the safa and some (the number is not given),

also minute, on the coat. The seizure memo, Ex. P-55,

picked out only five. Those stains are not proved to be of

human blood.

Now there is next no evidence to connect either the coat

or the safa with the appellant. The High Court has relied

on the evidence of Sannatrao (P.W. 14), Gokulprasad the

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Station Officer (P.W. 44) and Tiwari (P.W. 48). Sannatrao

does no more than say that he noticed the appellant wearing

a popat coloured sara and a black coat. But he was not able

to describe the clothes of the passenger he had carried

immediately before the appellant, nor was he able to de-

scribe the appellant's coat in detail. That therefore is no

identification of this coat with the one the appellant wore

or owns. The Station Officer Gokulprasad said that he had

seen the appellant wear this very coat and sara and there-

fore he identified them as his clothes. In cross-examina-

tion he admitted that he had only seen the appellant on

three occasions but not to speak to. Consequently, that is

not strong evidence of identification. But what in our

opinion is almost conclusive against this identification is

that Tiwari, P.W. 48, who is clearest on the point and who

of course had the best opportunities for observation,

541

gives a distinctive feature of the appellant's coat, namely

that it had only one button. That is one of his reasons for

knowing what the appellant used to wear. But the seizure

memo, Ex. P. 55, shows that the coat, Article X, had two

buttons. In the circumstances we find it difficult to see

how it can be the appellant's coat.

There is another strong point in the appellant's

favour which the High Court has not noticed. P.W. 35 the

wood stall keeper Tilakchand, who saw him on his way to pick

up his victim, is definite that the appellant was not wear-

ing a coat at the time. It is difficult to see why he should

have donned a coat and got it stained with blood just for

murdering a child of five. In our opinion, it would be

unsafe to conclude on this evidence that any connection is

established between the coat and the sara and the appellant.

The furthest point to which this evidence can be pushed is

to indicate that the appellant possessed a coat similar to

Article X but which was not Article X.

We do not ordinarily interfere with a concurrent finding

of fact but when the finding omits to notice these two very

important points in the accused's favour which, in our

opinion, swing the balance the other way, we are unable to

let the finding stand. In our opinion, the nexus between

the appellant and the coat and the sara is not established.

(7) Motive.

This is the last piece of evidence on which the prosecution

rely. Both courts hold that the motive is established and

there is strong evidence to prove it. We accordingly accept

the finding that the appellant had a motive for enmity

against Tiwari and that he had expressed a determination to

be revenged. The only comment we will make is that other

persons who were also dismissed from service had similar

motives.

What then is the summary of the evidence ? In the appel-

lant's favour there are the facts that there is no proof of

his having been last seen in the company of

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542

the deceased. The only evidence of the boy's movements is

that of Krishna (alias Billa) P.W. 9, a boy of seven years,

and all he says is that Pritipal asked him to bring Ramesh

with him to the Gurudwara that morning about 9 A.M. The

boys played about and had some tea and then Pritipal took

Ramesh away in the direction of the prostitute's house.

Pritipal later returned without Ramesh. The Sessions Judge

thought this witness had been tutored on at least one point.

Pritipal's so called confession has been rejected because,

in the first place, it is not a confession at all, for it is

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exculpatory, and, in the next, the High Court was not able

to trust it. Therefore, the only evidence of the boy's last

movements is as above.

The next point in the appellant's favour is that he was

seen without a coat shortly before the murder and at a time

when he was not in the vicinity of his own house. According

to the prosecution, the murderer wore the coat, Article X,

and the sara, Article Y.

The third point is that the appellant was not seen by

anyone in the vicinity of the place of occurrence.

The fourth point is that if the prosecution case is

true, then it is remarkable that no one saw the appellant

and the boy on a cycle through nearly a mile of what the

High Court, which made a spot inspection, describes as a

crowded locality.

The points against the appellant are (1)that he had a

motive and that he said he would be revenged, (2) that he

was absent from the Gurudwara about the time of the murder

long enough to enable him to commit it, and denied the fact,

(3) that some twelve hours after the crime he assisted in

removing the body from a place between half to three quar-

ters of a mile distant from the scene of the crime, and (4)

that at some unknown point of time he assisted in tying up

the mouth of the gunny bag in which the body was eventually

placed. In our opinion, it would be unsafe to convict of

murder on these facts.

543

A number of rulings were cited, including one of the

Privy Council, and it was argued that in those cases

persons were convicted of murder on similar facts. We do not

intend to examine them because no decision can be a. guide

on facts. Each case has its own special circumstances and

must be decided on its own facts. For example, in most of

the cases cited the accused was associated with the disposal

of the body very soon after the occurrence and at the scene

of the crime. Here, twelve hours had elapsed and the first

connection proved with the disposal is at a place over half

a mile distant from where the boy is said to have been

murdered. Next, the points we have shown in favour of the

appellant in this case were not present there.

We allow the appeal on the charges of murder, conspiracy

and kidnapping and reverse the findings and sentences on

those charges and acquit the appellant of them. We however

convict the appellant of an offence under section 201,

Indian Penal Code, and sentence him to seven years' rigorous

imprisonment.

The learned Sessions Judge omitted to record a convic-

tion under section 201 because he was convicting the appel-

lant of murder. He followed a Nagpur decision which holds

that in such a case it would be improper to convict in the

alternative. We express no opinion about that; the question

does not arise as we have acquitted the appellant of the

murder and the cognate charges. The case now falls in line

with that of the Privy Council in Begu v. The King-

Emperor(1) and the conviction and sentence are confined to

section 201.

Agent for the appellant: Ganpat Rai.

Agent for the respondent: P.A. Mehta.

(1) (1925) 52 I.A. 191.

544