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The appellant Kashmira Singh was an Assistant Food Procurement Inspector there. FAC |
On the 1st of July, 1949, Tiwari found the appellant and Harbilas (P.W. 31) getting rice polished at a certain rice mill. FAC |
At that date the polishing of rice was prohibited by a State law. FAC |
Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandara. FAC |
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. FAC |
The orders were communicated on the 17th of November. FAC |
This embittered the appellant who on at least two occasions was heard to express a determination to be revenged. FAC |
In pursuance of this determination he got into touch with the confessing accused Gurubachan singh and enlisted his services for murdering the boy Ramesh. FAC |
On the 26th of December, 1949, festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia. FAC |
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 12 30. FAC |
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. FAC |
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. FAC |
The appellant accompanied him. FAC |
The map, Exhibit P 18A, shows that the distance along the route indicated was about half a mile to three quarters of a mile. FAC |
It was left there till about midnight. FAC |
Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao, P.W. 14. FAC |
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. FAC |
There the body was thrown into the well. ]hat in brief is the prosecution ease. FAC |
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 ? Ratio |
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 vs The King(1) "It does not indeed come within the definition of" 'evidence ' contained in section 3 of the Evidence Act. PRE |
, It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. PRE |
" Their Lordships also point out that it is "obviously evidence of a very weak type. . PRE |
It is a much weaker type of evidence than the evidence of an approv er, which is not subject to any of those infirmities. PRE |
" 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." PRE |
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. Ratio |
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... |
(3) Mad. Ratio |
75 at 77. FAC |
(2) CAl. Ratio |
559 at 588. FAC |
530 Translating these observations into concrete terms they come to. Ratio |
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. Ratio |
If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. Ratio |
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. Ratio |
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. Ratio |
Then, as regards its use in the corroboration of accom plices and approvers. Ratio |
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. Ratio |
The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross examination. Ratio |
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. Ratio |
But all these are only rules of prudence. Ratio |
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. PRE |
Two of us bad occasion to examine this recently in Rameshwar vs The State of Rajasthan(1). PRE |
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. PRE |
As the Privy Council observe in Bhuboni Sahu vs The King(2): "The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have (1) ; (2) (1949) 76 I A.147 at 157. PRE |
531 noted on innumerable occasions, and it is very difficult for the court to guard against the danger. . PRE |
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. PRE |
" Turning now to the facts of the present case. Ratio |
The evidence on which the prosecution relies, apart from the confession, is this : (1) Previous association between Gurubachan and the appellant. Ratio |
The only evidence about this is P.W. 23 Upasrao, a water carrier. Ratio |
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. Ratio |
Howev er, for what it is worth. Ratio |
he says he saw them talking (1) three weeks before the murder, (v) on the 24th and (3) on the 25th. Ratio |
They spoke in Punjabi which he does not under stand, but on the second occasion he heard them mention the name of Ramesh. Ratio |
Two of these meetings, namely the first and the third tally with two of the only three meetings de scribed in the confession. Ratio |
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. Ratio |
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. Ratio |
There his story was that the three brothers met and not Gurubachan and the appellant. Ratio |
This evidence can therefore be disregarded and consequently the confession cannot be used to prove previous association. Ratio |
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. ARG |
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. Ratio |
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. Ratio |
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. Ratio |
It is true this strang er knew the appellant 's brother, but how ? Ratio |
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. Ratio |
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. Ratio |
If the confession is true there was a well thought out plot timed with the precision almost of a minor military operation. Ratio |
At a given moment the nephew Pritipal was to decoy the deceased away from his companions and isolate him. Ratio |
Then, after leading him several hundred yards down the road, hand him over to Gurubachan. Ratio |
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. Ratio |
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. Ratio |
From there he was to cycle close on a mile to point No. 6 and meet Gurubachan and the boy. Ratio |
As the learned High Court Judges, who made a spot inspection, point out, the route would lie through a crowded bazaar locality. Ratio |
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. Ratio |
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. Ratio |
As will be seen, the timing would have to be within fairly close tolerances. Ratio |
Then, at the murder itself, what 533 assistance did Gurubachan give ? Ratio |
Nothing which a grown man could not easily have accomplished him self on a small helpless victim of five. Ratio |
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. Ratio |
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. Ratio |
(2) That the deceased Ramesh was in the Gurudwara about 9 30 or 10 in the morning of the 26th. Ratio |
This is not disputed. Ratio |
(3) That Kashmira Singh who had gone to the Gurudwara in the morning was absent between 11 A.M. and 12 45 P.M. Ratio |
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. Ratio |
The evidence to prove that he left it between these hours consists of three persons: P.W. 30 Atmaram, P.W. 35 Tilakchand and P.W. 5 Bisan. FAC |
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. Ratio |
He was first seen by P.W. 35 Tilakehand, a wood stall keeper, at point No. 13, just near the Gurudwara. Ratio |
The witness places the time at about 10 30 or 11 A.M. Ratio |
He says he saw him coming from the direction of the railway station and going past his stall. Ratio |
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. Ratio |
Next comes P.W. 30 Atmaram He keeps a bookstall on the broad gauge platform of the Gondia Railway Station. Ratio |
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. Ratio |
He came near ,enough the witness to wish him good day. Ratio |
He places 'the time at about 10 30 or 11. Ratio |
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. Ratio |
The possibility that the witness is mixing up this day with one of the other days cannot be excluded. Ratio |
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 ... |
Next there is P.W. 5 Bisan, the man in charge of the cycle shop. Ratio |
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. Ratio |
The Sessions Judge and the High Court lay great stress on this witness. Ratio |
But as against this is the evidence of Anupsingh Bedi, D.W. 1, a respectable disinterested witness, who is a resi dent of Nagpur. Ratio |
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