TMI Blog1952 (3) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 Gurudayal singh and was done to deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory 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([1911] I.L.R. 38 CAl. 559 at 588.) 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 Periyaswami Moopan([1931] I.L.R. 54 Mad. 75 at 77.) 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 described in section 30 may be thrown into the scale as an additional reason for believing that evidence. (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 confession, then of course it is not necessary to call the confession in aid. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek diwali fell nor could he give the names of anybody else he met on those occasions. However, 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 understand, 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 described 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctim 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 evidence 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roboration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Gurubachan'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 Gurubachan'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. The first point which emerges regarding this is that the 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Gurubachan'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 testimony 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 Sannat rao, P.W. 14. But there is other corroboration. It consists of the sari border. and this is 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 magistrate who recorded the confession as a witness. We wish to endorse the remarks of their Lordships of the Privy Council in Nazir Ahrnad v. King Emperor (1) regarding the undesirability of such a practice. In our opinion, the magistrate was rightly not called and it would have been improper and undesirable for the prosecution to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Sannat rao (P.W. 14), Gokul prasad the Station Officer (P.W. 44) and Tiwari (P.W. 48). Sannat rao 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 describe 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 Gokul prasad said that he had seen the appellant wear this very coat and sara and therefore he identified them as his clothes. In cross-examination he admitted that he had only seen the appellant on three occasions but not to speak to. Conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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