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1954 (10) TMI 45 - Supreme Court Of India

1954 (10) TMI 45 - Supreme Court Of India - 1955 AIR 104, 1955 (1) SCR 903 - CRL.A. 4 Of 1954 - Dated:- 22-10-1954 - Jagannadhadas B., Bhagwati, Natwarlal H., Aiyyar And T.L. Venkatarama, JJ. Jai Gopal Sethi, T. Godiwala, P. Maheswhari, A. K. Basu, J. B. Dadachanji and Naunit Lal, for the appellant Porus A. Mehta and P. G. Gokhale for the respondent JUDGMENT: Bhagwati - Anokhelal Ranjit Singh, original accused I and appellant in Criminal Appeal No. 28 of 1954, Harnarain Nanakchand, original accu .....

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h having committed the murder of Lawrence Quadros at the same time and place and in the 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 summar .....

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n 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 100 notes of ₹ 100 each, and would affix thereon the rubber stamp of the Bank. These notes then would be tied up in what are known as "thappis" each "thappi" consisting of 10 bundles of 100 .....

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e sent to the Reserve Bank of India on the 20th April, 1951. In the morning of the 20th April, the escort party consisted of Brightling, Sarkari and Doctor and the peon Rama Madura and taxi No. BMT 1829 was summoned to carry the party to the Reserve Bank. The escort party emerged from the rear door of the Bank and went up to the taxi. Bala Gopal Kadam, a watchman, was on duty on Bastion Road. When the escort party came out, the taxi s bonnet was in the direction of the Empire Cinema and the driv .....

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Rubidas and Bankelal attacked the taxi and the escort party. One of these persons first wrenched open the door to the taxi driver s seat, leaned inside and fired twice with a revolver. One of these shots caused an injury to Lawrence Quadros near the collar bone, which almost instantaneously caused his death and his body came out with the head first. The man who so shot after leaning into the taxi went round the front of the taxi and took his seat next to the driver s seat. There was another man .....

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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 .....

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ht eye. Both the accused 2 and 4 were armed with revolvers. A driver by name Sarvarkhan, was sitting on the foot-path near the taxi and seeing :the body of Lawrence Quadros falling out of the taxi he tried to go up to him but the accused 4 prevented him from doing so shouting at him "khabardar" and threatened him with his revolver." During the course of the attack someone of these men shot at Rama Madura. Rama Madura became unconscious and accused 2 and another dragged him out fro .....

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cident and also those inside the taxi when it was driven past him. The prosecution alleged that accused 1, 2 and 4, Rubidas and Bankelal surrounded and ,attacked the taxi and its inmates and after snatching away the bag tied to Rama Madura s belt with the cash containing ₹ 12 lakhs drove away in that taxi. Brightling and some other employees of the Bank after some time secured a car which was parked nearby and went round in search of the taxi but to no purpose. Brightling then reported the .....

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th the accused and Bankelal seated therein was found abandoned at about 1-30 P.m., on that very day by the police not far from the Kashmir Hotel. The police made various efforts to trace accused 4 and Bankelal but were unable to find them and they therefore charge-sheeted accused 1, 2 and Rubidas (who was original accused 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, .....

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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 .....

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20th April, 1951, the other part of the evidence related to the actual participation of the accused in the occurrence which took place at Bastion Road on the morning of the 20th April, between 10-30 and 10-45 A.M., and the last part of the evidence related to the subsequent events including the arrest and the identification of the accused, the recoveries of the tin box containing the revolvers and the live cartridges, the steel trunk containing six thappis and five bundles of 100 rupee notes and .....

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pects was favorable to the accused. The learned Judge summed up the evidence which had been led by the prosecution, pointed out the defects as also the contradictions in. the evidence of the several witnesses, administered the necessary warning in regard to the evidence of the identification parades, considered the cases of each of the accused separately and marshaled the evidence which had been led by the prosecution against each of them and fairly put to the jury the questions which they had t .....

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sel 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 o .....

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nce Act. The investigation in this case was started on the 20th April, 1951, and the Bombay City Police were then governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act IV of 1902). Section 63 of that Act provided :- "(1) No statement made by any person to a police officer in the course of an investigation under this Act shall, if taken down in writing, be signed by the person making it nor shall such writing be used as evidence. There was a p .....

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ssed the Bombay Police Act (Bombay Act XXII of 1951). Section 167(3) of that Act repealed section 1(2) (a) of the Criminal Procedure Code so far as the police in the town of Bombay were concerned with the result that when this Act came into operation with effect from the 1st August, 1951, the Bombay City Police were also governed by the provisions of Criminal Procedure Code thus bringing into operation the provisions of section 162 thereof in the investigations conducted by the Bombay City Polic .....

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the time when such statement was made." There is a proviso to this sub-section which enables the accused to use such statements to contradict such witnesses in the manner provided by section 145 of the Indian Evidence Act. The investigations conducted by the Bombay City Police were after the 1st August, 1951, assimilated to the investigations conducted by the police under the Criminal Procedure Code and oral statements made by persons to police officers in the course of the investigation al .....

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st 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 Commis .....

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y clause (b) thereof any right, privilege, obligation or liability already acquired, accrued or incurred before such date and by clause (d) thereof any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, liability, penalty, forfeiture or punishment and that therefore the investigation which had been made by the police under the provisions of the City of Bombay Police Act IV of 1902 was saved and did not come within the ban of section 162 of the Criminal Pro .....

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e investigation which bad been conducted up to the 1st August, 1951, would be governed by the provisions of City of Bombay Police Act IV of 1902 and unless there was something in the Bombay Police Act XXII of 1951 which referred to those investigations, all. the incidents of those investigations would be governed by the provisions of the repealed, Act and the question as to the admissibility in evidence of the results of such investigations would also have to be considered With reference to the .....

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eason of the context and the terms of that very section to investigations which had been conducted by the Bombay City Police 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 .....

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e 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 evidence having regard to the provisions of section 162 of the Criminal Procedure Code. There has been a conflict of opinion between various High Courts in regard to the admissib .....

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ication of stolen property during investigation in the presence of police officers and it was held that section 162 embraced all kinds of statements made to a police officer in the course of an investigation, that the evidence of the fact of identification is nothing but evidence of the statements which constitute the identification in a compendious and concise form and that therefore any identification of stolen property in the presence of a police officer during investigation was a statement m .....

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considered to be within the ban of section 162. This decision was commented upon in Surendra Dinda v. Emperor(A.I.R. 1949 Cal. 514). There also the question arose as to the admissibility of the evidence of the sub-inspector of police that the witnesses told him that the articles produced by him were identified by them as their property and the statements by the witnesses themselves A. that they had identified the articles to the sub-inspector. It was held that the word "identified" ha .....

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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 hi .....

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ence of the witnesses when they said they "identified" the articles in the presence of the sub-inspector in so far as, the latter expression was taken to mean and include not only that they recognised the articles as theirs but conveyed the fact of that recognition to the sub-inspector. The Allahabad High Court in Daryao Singh v.State(A.I.R. 1952 All. 59) followed this decision of the Calcutta High Court in terms without adding any comments of its own. These decisions of the Calcutta a .....

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communication of the fact of such identification by the identifier to another person is banned and no evidence in respect thereof can be given in a Court of law under section 162. The High Court of Madras on the other hand in In re Kshatri Ram Singh (A.I.R. 1941 Mad. 675) took the view that any evidence about the statements made by witnesses at the identification parades held by the police in the course of investigation was excluded by section 162, but the fact that witnesses had identified per .....

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r. Justice Wadsworth who delivered the judgment of the Court observed that the question was not without difficulty, for in the nature of things it was probable that when a witness identifies a person in a parade he does make some statement or other as to the purpose for which he identifies him and anything said by a witness at an identification 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 .....

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n 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 identif .....

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ection 162 as their evidence does not relate to any statement made to the police but is a simple exposition of a fact or circumstances witnessed by themselves. Here also a distinction appears to have been made between the physical fact of identification sought to be proved by the evidence of the police officers and the statements made by the identifier to the police. In order to resolve this conflict of opinion one has to examine the purpose of test identification parades. These parades are held .....

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s are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified -were concerned in the offence. This statem .....

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nt 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 identi .....

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ation of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken by the Madras High Court and the Judicial Commissioner s Court at Nagpur. The learned Attorney-General however sought to make a distinction between the statements made to the police officers and the statements made to the Panch witnesses called by the police officers when conducting the test identification parades. He urged that a statement made to t .....

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to them without attracting the operation of section 162. He further urged that in such a case the identification would amount to a statement to the Panch witnesses even though the police officers were present at the time and it would be a question of fact whether the statement -was made to the Panch witnesses or to the police officers which question would have to be determined having regard to the circumstances of each case. [Vide Abdul Kader v. Emperor(A.I.R. 1946 Cal. 452) and Rao Shiv Bahadur .....

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the identification was held and were signed by the Panch witnesses and that therefore the, identification of the accused by the identifying witnesses amounted to statements made by the identifiers to the Panch witnesses and not to the police and evidence in that behalf given by the Panch witnesses was therefore admissible in evidence. This argument would have availed the learned Attorney- General if after arranging the test identification parade the police had completely obliterated themselves .....

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after 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 .....

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were appended by them at the foot of the Panchnama. The whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these, circumstances that the statements, if a any, involved in the process of identification .....

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y, and the 22nd January, 1952, attracted the operation of section 162 and the evidence of identification at those parades was inadmissible against accused 4. The question as to the admission of evidence inadmissible under section 27 of the Indian Evidence Act really lies within a narrow compass. The contention in this behalf was based on the evidence of the Investigating Officer, Hujur Ahmed Khan, that on the 16th May, 1951, the accused I made a certain statement in consequence of which he took .....

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e ban of section 27. Section 27 of the Indian Evidence Act runs as under :- "Provided that, when any fact is deposed to as discovered 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 n .....

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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 accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded ther .....

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ould consist of a statement made by the accused to the police officer and the police officer is obviously precluded from proving the information or part thereof unless it comes within the four corners of the section. If the police officer wants to prove the information or a part thereof, the Court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. If however the police officer does not want to prov .....

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cused I he did not seek to prove what that information was. The operation of section 27 was therefore not attracted and _prima facie there was nothing to prevent that evidence being admitted against the accused 1. - Reliance was however placed on an unreported judgment of Chagla C.J. and Gajendragadkar J. delivered on the 11 th January, 1950. in Criminal Appeals No. 454 of 1949 and No. 464 oil, 1949 with revisional application No. 952 of 1949 in the case of Rex v. Gokulchand Dwarkadas Morarka No .....

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ent 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 .....

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not, the connection between the statement made by the accused and the discovery of the relevant fact is clearly hinted at. In our opinion, therefore, evidence cannot be given of any statement made by accused which results in the discovery of a fact unless it satisfies the conditions laid down under section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution. Even if the statement is not proved, the statement must be such as can be proved under s .....

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Judges expressed their inability to agree with this view of the law observing that Ran kin C.J. was really dealing academically with the various sections of the Indian Evidence Act and he was not called upon to decide this point. With the utmost respect the learned Judges of the Bombay High Court committed the same error which they thought Rankin C.J. had committed, because immediately thereafter they observed:- "We would also like to add that, in the circumstances of this case, this discus .....

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o doubt go to show that the- accused knew of the existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of sec .....

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s 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 .....

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dence so far as the question as to the number of men is concerned." Our attention was drawn to the evidence of these several witnesses and it was pointed out that far from their being definite that there were five or more men concerned in the commission of the offence there was evidence to show that only two persons were occupying the front seats and two persons were occupying the rear seats in the taxi which brought the number of persons to four and not five as contended by the prosecution .....

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ix persons there in all. Their evidence did not definitely say that these five persons were the persons concerned in the commission of the offence and that some of them might as well have been passersby or Baburao Raje or Sarvarkhan, who happened to be present there at the scene of the occurrence and were certainly not concerned in the commission of the offence. It was also pointed out that Holmes, the submanager of the Bank, who witnessed the occurrence from behind the double glasses of the win .....

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s 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 unobjec .....

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ng 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 conclusion whether four or five persons were concerned in the commission of the offence and they brought in a unanimous verdict of guilty under section 395 of the Indian Penal Code. The other misdirections which were sought to be pointed out by the learned counsel for the accused I and 2 were minor misdirections, if any .....

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iterated in various places the story of the prosecution and did not point out the weaknesses or the defects in that story, that he did not advert to the various criticisms which were leveled against the story of the prosecution by the counsel for the defence, that he did not point out to the jury the improbabilities of the prosecution story or the incredibility of the prosecution witnesses in regard to the salient features of the prosecution case, that he did not draw the pointed attention of th .....

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law by which the jury are to be guided. The Judge lays down the law and directs the jury on questions of law. So far as the facts are concerned however they are within the exclusive province of the jury. But even there the Judge has to sum up the evidence for the prosecution and defence. Summing up does not mean that the Judge should give merely a summary of the evidence. He must marshall the evidence so as to bring out the lights and the shades, the probabilities and the improbabilities so as .....

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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. .....

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f misdirection, if, upon the general view taken, the case has been fairly left within the jury s province. But in any case in the region of fact their Lordships of the Judicial Committee would not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. ? Bearing these principles in mind we have got to scrutinise how far these criticisms levelled against the learned Judge s charge to the jury are of any avail. We have been taken i .....

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out the various -defects and contradictions in the evidence of the prosecution witnesses and has fairly put it to the jury to consider whether in view of the same they would accept the testimony of the several witnesses. He has marshalled the evidence against each of the accused separately and has also pointed out in their proper places the criticisms which have been levelled against the evidence of the prosecution witnesses in regard to each of the accused, Apart from the general observations .....

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aring of the evidence" or that "there is any failure of justice, We are unable to agree with the submission made by the learned counsel for the accused before us that the charge was 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 misdirect .....

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hat 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 it was also impossible to say that this inadmissible evidence did not have considerable effect on the jury and their .....

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usion which might have been different but for its reception. It must always be a question whether prejudice had been caused in such cases, and, if not, whether the materials left were sufficient within the meaning of section 167 of the Indian Evidence Act. The position in this behalf has got to be considered with reference to the provisions of section 537 of the Criminal Procedure Code and section 167 of the Indian Evidence Act. Section 537 of the Criminal Procedure Code provides:- " Subjec .....

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a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that independently of the evidence objected to and admitted, there, was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. " The latest pronouncement on this question was the decision of the Privy Council in Abdul Rahim v. KingEmperor((1946) L.R. 73 I.A. 77), where it was laid dow .....

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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 det .....

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the light of the decision of the Supreme Court and say whether there has been a failure of justice as a result of the misdirections, or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case and that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the Court would be entitled to take the whole case into consideration. This Court discussed the statute law in India which in certain circums .....

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evidence has been admitted and has been incorporated in the learned Judge s charge to the jury is to exclude the inadmissible evidence from the record and consider whether the balance of evidence remaining thereafter is sufficient to maintain the conviction. A question was raised in this connection by the learned Attorney-General whether having regard to the observations of their Lordships of the Privy Council in Abdul Rahim v. King-Emperor (supra) and of this Court in Mushtaq Husain v. State of .....

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ahajan, as he then was, to the effect that on the materials on record no reasonable body of men could have arrived at the verdict. There is no doubt that these observations occur in the judgments above referred to. But if these judgments are read as a whole they go to show that it is for the Court of Appeal to take the whole case into consideration and determine for itself whether the verdict pronounced by the jury was justified or whether there had been in fact a failure of justice. The merits .....

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fering 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 .....

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R. 1940 Lah. 87) was correct and held that the Court was entitled to examine the evidence for itself and see whether it justified the verdict pronounced or whether there had in fact been a failure of justice. The Court of Appeal is thus entitled to substitute its own verdict for the verdict of the jury if on examining the record for itself it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man has been acqu .....

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om his evidence there was evidence of Sarvarkhan which was sufficient to establish the participation of accused 4 in the offence. His presence at the scene of the occurrence and his participation in the offence was clearly deposed to by Sarvarkhan and we see no reason in spite of the criticisms levelled against his evidence by learned counsel to discard his testimony in that behalf. There is also sufficient evidence of his previous conduct, his association with the accused I and 2, his activitie .....

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he 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 .....

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entification 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 accused fail and must stand dismissed. Jagannadhadas.- I agree that the appeals should be dismissed. But I consider it necessary to make a few observations as regards the questions debated before us in these cases with reference to section 162 of the Criminal Procedure Code and section 27 of the Indian Evidence Act. I agree th .....

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, P.W. 113, Damodar Dayaram, and (3) the two eye-witnesses, P.Ws. 13 and 15, Baburao Parshram Raje and Sarwarkhan. An attempt has been made to argue before us that while the evidence of the police officer may be inadmissible, the evidence of the Panch witness as well as of the identifying witnesses themselves, relating to the fact of the prior identification, as an item of corroborative evidence is admissible. I agree that, on the evidence given in this case, there is no scope for such different .....

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e identifying witness himself, in so far as they speak to a prior identification at a parade held by the police officer. I am inclined to think that such differentiation is unsound and inadmissible. The legal permissibility thereof is a matter of importance because, though the evidence of prior identification is only corroborative evidence, still such corroboration is of considerable value in cases of this kind. Next as regards the objection to the admissibility of evidence raised with reference .....

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ence 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 .....

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e portion in this evidence which is objected to is that this production was "at the instance of the first accused" seeking thereby to establish the direct connection of the first accused with the find of this very large sum of money which bears indications that it was out of that lost to the Bank by the offence. It may be that when a police officer speaks to a recovery being "on the information of" or "at the instance of" an accused, section 27 of the Indian Evidenc .....

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s recovered. It is urged that the prosecution cannot be permitted to rely on such evidence without placing the admissible portion of the information on the record. I am inclined to think that there is considerable force in this objection. The information given by ;in accused in such a situation may be such which, if scrutinised, shows only his remote connection and not direct connection. In such a situation evidence of the bare fact of information having been given may be inadmissible and such e .....

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