TMI Blog1954 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the same transaction while committing the said dacoity. The trial was held before the Sessions Joe for Greater Bombay with the aid of a special jury. The jury returned unanimous verdicts of guilty against each of the accused and the learned Sessions Judge convicted them and sentenced each of them to transportation for life. An appeal filed by them to the High Court of Judicature at Bombay was summarily dismissed. Special leave was granted to them to appeal to this Court and these three special leave appeals have now come on for hearing and final disposal before us. The prosecution alleged that the Lloyds Bank Ltd. had a branch situated at Hornby Road and had three entrances, the main one on Hornby Road and two others on Outram Road and Bastion Road. It was customary for the Bank to send cash from time to time to the Reserve Bank whenever the Head Cashier thought that there was a surplus. On a day previous to the day when cash was to be sent, the Head Cashier would give the currency notes to the Assistant Cashiers. As a token of having checked up the notes each of the Assistant: Cashiers would put their signatures on the top and the bottom notes in a bundle containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pan American Airways at Delhi. Accused I also Armed with a revolver stood on the road side of the taxi and fired twice at the taxi from that side and accused 2 and 4 were, either at the back or on the Bank side and were also armed with revolvers. Sarkari first thought that these shots were tyre-bursts and naturally got out of his seat to inspect the tyres but hearing further shots he realised that an attempt was being made to loot the cash. He got frightened and went in the direction of Outram Road. Brightling got out of the taxi, first went a little towards the back of the taxi and then seeing that the taxi was surrounded, zigzagged and went towards the junction of Outram and Bastion Roads where he tried unsuccessfully to stop a passing car. Accused 1 who was firing at the taxi came near it, opened the back door of the taxi on the road side with his shoulder and got into the taxi. Accused 2 came towards the rear door of the taxi on the Bank side and fired at Doctor injuring him on the dorsum of his left palm. Kadam at about this time raised his baton, realising that Doctor was in danger whereupon accused 2 shouted Khabardar, chhod do chale jao, bhago or words to that effect and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 3) and they were all committed to stand their trial in the Sessions Court. After those proceedings were over the accused 4 was arrested on the 25th December, at Bareli Station, and he too was charge-sheeted and was committed to Sessions. Rubidas, the original accused 3, died on the 3rd August, 1952, with the result that accused 1, 2 and 4 stood their trial on the charges under section, 395, 397 and 396 of the Indian Penal Code. The defence of the accused 1, 2 and 4 was that they had nothing to do with the incident in question which took place in the morning of the 20th April, 1951. Though conceding that they had been in Bombay, accused 1 and 4 contended that accused I had left Bombay on the night of the 18th April, and accused 4 had left Bombay either on the 16th or 17th April, for Allahabad, that they were not in Bombay on the day in question but were in Allahabad where they had filed two affidavits before one Tondon, the first class Magistrate at Allahabad. Accused 2 also conceded that he had stayed in Astoria Hotel with the accused 4 but, he had left that hotel on the 18th April, and had gone to stay in Kashmir Hotel on that day and had stayed there until the night of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as would vitiate the verdict. The main contentions which were urged before us by the learned counsel for the appellants were (1)That evidence inadmissible under section 162 of the Criminal Procedure Code and under section 27 of the Indian Evidence Act had been admitted and that therefore there was an error of law which amounted to a misdirection to the jury; and (2)That there were misdirections in the learned Judge s charge to the jury which had the effect of misleading the jury or were in any event such as to render the charge unfair and prejudicial to the accused, thus causing a failure of justice. The admission of inadmissible evidence was attacked on two counts: ---- (1)That the evidence in regard to the test identification parades held at the instance of the police and under their active supervision was hit by section 162 of the Criminal Procedure Code; and (2)That the statement of the police officer that it was tat the instance of or in consequence of certain -statement by the accused that certain discoveries were made was hit by section 27 of the Indian Evidence Act. The investigation in this case was started on the 20th April, 1951, and the Bombay City P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so came within the ban of section 162 and could not be used for any purpose save that specified in the proviso to section 162(1). The provisions of section 162 applied to investigations conducted by the Bombay City Police from and after the 1st August, 1951. They applied to investigations under this chapter , i.e., investigations conducted under the Criminal Procedure Code, and therefore prima focie did not apply to the investigations conducted by the Bombay City Police prior to the 1st August, 1951, in which case section 63 of the City of Bombay Police Act IV of 1902 was applicable. It was however contended on behalf of the appellants that this section was a procedural one, that nobody had a vested right in any course of procedure, that alterations in procedure were to be retrospective unless there was some good reason against it or unless that construction be textually inadmissible [vide Banwars Gope v. Emperor(A.I.R. 1943 Pat. 18) and Delhi Cloth Mills v. Incometax Commissioner, Delhi(A.I.R. 1927 P.C. 242)], that the ban under section 162 was operative when evidence in regard to the test identification parades was led before the learned Sessions Judge and that therefore a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice after the 1st August, 195 1, and would not have a retrospective operation, because the investigations conducted up to the 1st August, 1951, by the Bombay City Police would certainly not be investigations conducted under this Chapter , i.e., Chapter XIV of the Criminal Procedure Code. There is no substance therefore in either of these contentions and the question as to admissibility in evidence of the statements made in the course of investigation under the City of Bombay Police Act IV of 1902 would have to be considered in the light of the provisions of section 63 of that Act and not section 162 of the Criminal Procedure Code. It may be noted that the test identification parades in regard to the accused I and 2 were all held prior to the 1st August, 1951, and no question could therefore arise as to the provisions of section 162 of the Criminal Procedure Code being applicable to the evidence in I regard to those parades. The test identification parades in regard to accused 4 however were held after the 1st August, 1951, between the 16th January and the 22nd January, 1952, and it remains to be considered how far the evidence in regard to those parades was admissible in evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the person identifying, seeing an object or person and recognizing that the object or person seen was identical with some particular object or person and on the other hand the communication to a third person of this mental act. The communication was of course a statement, but the identification by the identifier could not possibly-be a statement. The Court however proceeded to observe that no distinction could be legitimately made between an actual verbal statement and some action on the part of the identifier disclosing the fact of his identification. Both were hit by section. 162. The communication of his own mental act of recognition and identification to the police was what was hit but evidence in the Court subsequently by the actual identifier himself was not inadmissible under section 162. The Court further observed that it was not the actual act or process of seeing or recognising the accused in the presence of the officer which was affected by the provisions of the section, it was the communication of that fact to the police officer of which proof could not be given. It therefore held that the accused was entitled to object to the evidence of the sub-inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification parade held by the investigating officer might well be considered to come within the purview of section 162. On the other hand the mere act of a witness in picking out one individual from a parade was a revelant circumstance concerning which evidence is admissible and if the investigating officer made a note of that circumstance which he himself had observed, there was no apparent reason why that note should, not be used in evidence. If in the course of that note he appends an inadmissible record of the statement of the identifying witnesses presumably any such portion of the note would have to be excluded from evidence. He applied that criterion to the document in question and the bare note of the personnel of the parade, the names of the witnesses, the way in which the parade was arranged and the numbers of the persons in the parade identified by each witness were held unobjectionable. What was excluded was the statement in regard to the identification of witnesses of the persons as having been concerned in the murder cases which were the subjectmatter of investigation. A distinction was thus made between the physical fact of identification and the statement made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts in preferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were left solely in charge of the parade. The police officers would certainly arrange the parade, would call the persons who were going to be mixed up with the accused in the course of the parade and would also call the Panch witnesses who were to conduct the parade. But once the Panch witnesses were called for the purpose the whole of the process of identification should be under the exclusive direction and supervision of the Panch witnesses. If the Panch witnesses thereafter explained, the purpose of the parade to the identifying witnesses and the process of identification was carried out under their exclusive direction and supervision, the statements involved in the process of identification would be statements made by the identifiers to the Panch witnesses and would be outside the purview of section 162. In the case of the, identification parades in the present case however the police officers were present all throughout the process of identification and the Panch-witnesses appear only to have been brought in there for the purpose of proving that the requirements of law in the matter of holding the identification parades were fully satisfied. Not only were the police offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered in consequence of information-received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Where however any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. The expression whether it amounts to -a confession or not has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was contended that statement was inadmissible in evidence. - The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused I and 2 in that case was admissible without specifying what statement was made by a particular accessed which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by section 27 and the evidence of Mistry, the police officer, in that behalf should therefore have been excluded. An argument was however addressed by the learned Advocate-General who appeared for the State there that Mistry had not attempted to prove what statement the accused had made and all that he said was that in consequence of statements made by them a discovery was made. The learned Judges dealt with that argument as under:- In our opinion, this is a roundabout and objectionable way of attempting to prove the statements made by the accused without actually proving them. When the police officer speaks of in consequence of a statement made by an accused a discovery was made , he involves the accused in the discovery. Whether he gives ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of section 27. If it were necessary to do so we would prefer to accept the view of Rankin C.J. to the one expressed by the learned Judges of the Bombay High Court. This question as regards the inadmissibility of evidence under section 27 of the Indian Evidence Act must therefore be answered against accused 1. Turning now to the misdirections and non-directions such as to vitiate the verdict of the jury, the main misdirection which was pointed out by the learned counsel for all the accused before us was in regard to the question whether four or five persons were concerned in the commission of the offence. Particular exception was taken to paragraph 59 of the learned Judge s charge to the jury:- Brightling, Baburao Raje, Miss Vida Palmer, Mrs. Paterson and witness Sarkari, if you were to accept his evidence here on this part of the case, were all definite that there were five or more men surrounding the taxi and concerned in the attack while Holmes said that there were at least four, if not more, which means that he was not certain abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the main defects and contradictions in their evidence were clearly pointed out by him to the jury. The actual words used by him in the paragraph in question were that the several witnesses were all definite that there were five or more men surrounding the taxi and concerned in the attack and on the evidence as a whole we do not see any exception to the correctness of that statement. The explanation which was given, of the expression piling into the taxi from the rear door of the taxi on the Bank side was also unobjectionable. The words piling into the taxi could certainly be appropriate when describing the getting into the taxi of some other persons and. that expression certainly was capable of being understood to mean that more than one person was trying to get into the taxi from its rear door on the Bank side. All these points were clearly put by the learned Judge to the jury and we are of the opinion that -there was no misdirection at all in that part of the learned Judge s summing up to the jury. It was strictly within the province of the jury on the evidence as it was summed up by the learned Judge to them on this aspect of -the question to come to the conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts is true. Vide Ilu v. Emperor(A.I.R. 1934 Cal. 847). The Judge should give the jurv the help and guidance which they are entitled to expect from the Judge and which it is his duty to give. The charge should not consist of a long rambling repetition of the evidence, without any attempt to marshall the facts under appropriate heads, or to assist the jury to sift and weigh the evidence so that they will be in a position to understand which are the really important parts of the evidence and which -are of secondary importance. It is necessary in every criminal case for the Judge carefully, properly and efficiently to charge the jury and he should not go into unnecessary details with regard to such aspects of the case which are really of very little importance. Vide Nabi Khan v. Emperor(A.I.R. 1936 Cal. 186) It has been observed by the Privy Council however in Arnold v. King-Emperor((1914) I.L.R. 41 Cal. 1023), that- A charge to a jury must be read as a whole. there are salient propositions of law in it, these will, of course, be the subject of separate analysis. But in a protracted narrative of fact the determination of which is ultimately left to the jury, it must needs be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grossly unfair or contained any serious misdirection or non-direction such as to vitiate the verdict of the jury. The result therefore is that so far as the verdict of the jury against accused I and 2 is concerned the same was not vitiated either by the admission of inadmissible evidence or by any misdirection or non-direction. The convictions of these accused and the sentences passed upon them by the learned Sessions Judge will therefore be confirmed. As regards accused 4 however there has been an error of law in admitting evidence of the test identification parades in regard to him which we have held was inadmissible under section 162 of the Criminal Procedure Code. The admission of such inadmissible evidence would amount to a misdirection in the learned Judge s charge to the jury in regard to that accused and it is necessary therefore to consider what would be the effect of the admission of such inadmissible evidence so far as that accused is concerned. Learned counsel for the accused relied upon the observations in Kabiruddin v. Emperor(A.I.R. 1943 Cal. 644, 646), that it was impossible to ascertain what was the effect of this evidence on the minds of the jury and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the opinion of the Court, sufficient clearly to establish the guilt of the accused. It was observed that Misdirection is not in itself a sufficient ground to justify interference with the verdict. The High Court must under the provisions of section 423, subsection 2 and section 537 of the Criminal Procedure Code proceed respectively to consider whether the verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a failure of justice. If the Court so finds, then its duty is to interfere. In deciding whether there has been in fact a failure of justice in consequence of a misdirection the High Court is entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent one convicted. This decision was followed by our Court in Mushtaq Husain v. State of Bombay([1953] S.C.R. 809) and the Court held that where a jury has been misdirected and has based its verdict on assumptions and conjectures, the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the verdict pronounced by the jury was justified or whether there had been in fact a failure of justice. The merits of the case, had to be examined by the Court. of Appeal and the Court had to decide for itself whether the conviction could be maintained. As a matter of fact this very question was mooted before the Privy Council in Abdul Rahim v. KingEmperor(1946) L.R. 73 I.A. 77, 93) as under: The controversy which, as the reported cases show, has long existed in the High Courts of India has centered round the question whether the appellate court, in deciding whether there is sufficient ground for interfering with the verdict of a jury, particularly where there has been a misdirection by the judge, has the right and duty to go into the merits of the case for itself and on its own consideration of the evidence to make up its mind whether the verdict was justified or not. On the one hand, it has been said that the accused is entitled to have his guilt or innocence decided by the verdict of a jury and that the appellate court has no right to substitute its own judgment in place of a verdict by a jury...... On the other hand, it is argued that it is impossible for the court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone after having the hair-cut at the Taj Mahal Hotel and survey of the site of the Lloyds Bank by him along with the other accused as deposed to by Chinoy and Ramesh Chandra Mehta which make it highly probable that he must have been present at the scene of the occurrence and must have participated in the commission of the offence as deposed to by Sarvarkhan. His subsequent conduct also in leaving Bombay by the Calcutta Mail bound for Allahabad on the night of the 20th April, 1951, and the expression of relief at his finding accused 1 at the last moment entering his compartment, proved as it is by the evidence of Gogte contrary to his own assertion and the assertion of accused 1 that they had left Delhi for Kanpur on the 18th April, 1951, and had sworn an affidavit there before the Magistrate, Mr. Tandon, also support the same conclusion. All this evidence in our opinion is sufficient to establish the case of the prosecution against him and we are satisfied that even excluding the evidence of the test identification parades in regard to him the balance of evidence remaining on record is enough to maintain his conviction. The result therefore is that the appeals of all the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence are (1) the recovery on the 16th May, 1951, of a tin box containing three revolvers and two tins containing live cartridges, and (2) the find on the 19th May, 1951, of a steel trunk containing Government currency notes of the value of ₹ 6,47,400 on the production thereof by Kamalabai, the wife of the first accused, at a village Bhagwasi which is her native place. So far as the first is concerned it is not of much consequence because the expert evidence did not show that any of the three bullets which were found at the scene of offence were in fact fired from the three revolvers above recovered and this has been sufficiently indicated in the charge to the jury. It is the second item that is of importance. This arises from the fact that some of the currency notes had identification marks showing that they were part of the bundle of notes which formed the object of the offence. The evidence in this behalf is that of the Police Inspector, P.W. 80, which is as follows: We started from Delhi at about 6 A.M., and reached Bagwasi at about 2 or 3 P.m., on the 19th of May. The 1st accused took us to a certain house where he pointed out witness Kamala (wife of the first accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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