04. Case Law 17-35

Delhi Law Academy

 

Case Law on sections 17-35 Evidence Act

1.    Bishwanath Prasad     v.        Dwarka Prasad               [1974 SC]

2.    Veera Ibrahim            v.         State of Maharashtra    [1976 SC]

3.    Aghnoo Nagesia          v.         State of Bihar                  [1966 SC]

4.    Khushal Rao               v.          State of Bombay             [1958 SC]

 

 

Case Law on section 21 Evidence Act

                                     Bishwanath Prasad     v.      Dwarka Prasad     [1974 SC]

This appeal arises out of a suit for partition. The first two of the three points formulated for determination by the High Court reflect the controversy raised before us:

Whether the entire properties mentioned in Schedule C to the plaint are joint family       properties liable to partition….

The case of the first (contesting) defendant, who is the first respondent before us now, is that these items of property exclusively belonged to him. The trial Court has accepted this case and the High Court has affirmed this finding. The foundation for these concurrent findings is the admissions made by the first plaintiff and the eighth defendant, the father of the plaintiff, in depositions in an earlier suit, Title Suit No. 61 of 1945, as well as similar admissions made in the written statement filed in that suit by the present eighth defendant (who was first defendant there) together with the present plaintiffs. The inference fluently drawn by the Courts below from these admissions is that the said property belongs to the first defendant.

Admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out.

Counsel for the appellants strenuously urged that the fatal admissions used against him have prejudiced him for many reasons. His further grievance is that these admissions were not put to his client, the first plaintiff, when he was in the witness box; nor was the eighth defendant summoned for examination by the first defendant to give him an opportunity to explain the admissions.

Therefore, Counsel contended that he was seriously harmed by the surprise reliance on statements attributed to his clients without extending a fair opportunity to them to offer their explanation and neutralise the effect of the admissions. Counsel drew our attention to Section 145 of the Indian Evidence Act

There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act.

This distinction has been clearly brought out in the ruling in Bharat Singh case [1966 SC]. This Court disposed of a similar argument with the following observations:

Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

The appeal must, therefore, fail and is hereby dismissed.

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Case Law on section 24 Evidence Act

                             Veera Ibrahim     v.     State of Maharashtra    [1976 SC]

Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Bombay before the Chief Presidency Magistrate for his prosecution in respect of offences under Section 135 (a) and 135 (b) of the Customs Act, 1962. The trial Magistrate convicted both the accused on all the three charges.

The first contention canvassed by the Counsel is that on the facts and circumstances of the case, the appellant’s statement recorded under Section 108 of the Customs Act, 1962, on the foot of which the appellant has been convicted, was hit by clause (3) of Article 20 because at the time of making that statement, the appellant was “accused of an offence” under Section 124 of the Bombay Police Act, and the statement was obtained under compulsion of law.

Stress has been placed on the fact that the appellant was, in fact, arrested by the police on a charge under Section 124 of the Bombay Police Act and the goods were seized under a panchnama, prepared by them in the course of investigation.

Clause (3) of Article 20 provides:

“No person accused of any offence shall be compelled to be a witness against         himself.”

From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was “accused of any offence”; secondly, that he made this statement under compulsion.  By now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit.

In R.C. Mehta v. State of West Bengal [1970 SC], this point came up for consideration in the context of a statement recorded by an officer of customs in an enquiry under Section 171-A of the Sea Customs Act. One of the contentions raised was, that a person against whom such an enquiry is made is a “person accused of an offence’, and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the officer of customs is inadmissible.

The Court pointed out the circumstances, the existence of which is ordinarily necessary to clothe a person with the character of a “person accused of an offence” :

“Normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a magistrate competent to try or send to another magistrate for trial of the offence. Where a customs officer arrests a person and informs that person of the grounds of his arrest [which he is bound to do under Article 22(1) of the Constitution] for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.”

The abovementioned observations are a complete answer to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs Officer under Section 108, the appellant was not a person “accused of any offence” under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135(a) and Section 135(6) of the Customs Act.

True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under Section 124 of the Bombay Police Act and a panchnama of the packages in the truck was also prepared. But the factual ingredients of that offence are materially different from those of an offence under the Customs Act.

Even in respect of that offence, the police did not register any case or enter any F.I.R. which normally furnishes a foundation for commencing a police investigation. The police did not open the packages or prepare inventories of the goods packed therein. Indeed, the police appear to have dropped further proceedings. They informed the customs authorities, who opened the packages, inspected the goods and on finding them contraband goods, seized them under a panchnama. The customs authorities called the appellant and his companion to the customs house, took them into custody, and after due compliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under Section 108 of the Customs Act. Under the circumstances it was manifest that at the time when the customs officer recorded the statement of the appellant, the latter was not formally “accused of any offence. The High Court was therefore right in holding that the statement recorded by the Inspector of Customs was not hit by Article 20(3) of the Constitution.

The next question to be considered is, whether this statement was hit by Section 24 of the Evidence Act. The contention is that this statement was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury.

To attract the prohibition enacted in Section 24, Evidence Act, these facts must be established:

(i)         that the statement in question is a confession;

(ii)        that such confession has been made by an accused person;

(iii)       that it has been made to a person in authority;

(iv)       that the confession has been obtained by reason of any inducement, threat or promise proceeding from                          a person in authority;

(v)        such inducement, threat or promise, must have reference to the charge  against the accused person;

(vi)       the inducement, threat or promise must in the opinion of Court be sufficient  to give the accused person                          grounds, which would appear to him reasonable,  for supposing that by making it he would gain any                                advantage or avoid any evil of a temporal nature in reference to proceedings against him.

 

In the present case, facts (i), (iv) and (vi) have not been established. Firstly, the statement in question is not a “confession” within the contemplation of Section 24. It is now

well-settled that a statement in order to amount to a “confession” must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged cannot amount to a confession.

A perusal of the statement Ex. I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter. Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions. The deponent claimed to be an innocent traveller in the truck when he said:

I did not ask Mullaji (driver) what goods were being loaded in his lorry … Mullaji was      only my friend and I was not aware of any of his mala fide activities.

Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence. To bring home an offence under Section 135 of the Customs Act, in addition to the facts admitted in Ex. I, it had to be established further that these goods were dutiable or contraband goods.

For these reasons, it could be said beyond doubt, that the statement Ex. I was not a “confession” within the meaning of Section 24, Evidence Act.

Secondly, it has not been shown that the customs officer – though a person in authority – had offered any inducement or held out any threat or promise to the appellant.

While it may be conceded that a person summoned by an officer of customs to make a statement under Section 108 of the Customs Act, is under compulsion of law to state the truth, the compulsion thereunder, assuming it amounts to a threat, does not proceed “from a person in authority” within the contemplation of Section 24 but emanates from law.

Thirdly, the mere fact that the Inspector of Customs had before recording the statement, warned the deponent of the possibility of his prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling.

In view of what has been said above, we have no hesitation in holding that the statement Ex. I, was not barred under Section 24, Evidence Act. The statement Ex. P-1 was clearly admissible under Section 21, Evidence Act as an admission of incriminating facts.

Lastly, Mr Chaudhury tried to contend that the incriminating facts admitted in Ex. I taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under Section 135, Customs Act against the appellant.

We are unable to accept this contention. In Ex. I which was proved by PW 4, it is admitted that these packages which were later found to contain contraband goods by the customs authorities, were surreptitiously loaded in the truck under cover of darkness , in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck.

In the result, the appeal fails and is dismissed.

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Case Law on sections 25-27

                                   Aghnoo Nagesia     v.     State of Bihar                 [1966 SC]

The appellant was charged under Section 302 of the Indian Penal Code for murdering his aunt, Ratni, her daughter, Chamin, her son-in-law, Somra and Dilu, son of Somra. He was convicted and sentenced to death by the Judicial Commissioner of Chotanagpur. The High Court of Patna accepted the death reference, confirmed the conviction and sentence and dismissed the appeal preferred by the appellant.

The prosecution case is that on August 11, 1963 between 7 a.m. and 8 a.m. the appellant murdered Somra in a forest known as Dungijharan Hills and later Chamin in Kesari Garha field and then Ratni and Dilu in the house of Ratni at Village Jamtoli.

The first information of the offences was lodged by the appellant himself at Police Station Palkot on August 11, 1963 at 3.15 p.m. The information was reduced to writing by the officer-in-charge, Sub-Inspector and the appellant affixed his left thumb impression on the report. The Sub-Inspector immediately took cognisance of the offence, and arrested the appellant. The next day, the Sub-Inspector in the company of the appellant went to the house of Ratni, where the appellant pointed out the dead bodies of Ratni and Dilu and also a place in the orchard of Ratni covered with bushes and grass, where he had concealed a tangi. The appellant then took the Sub-Inspector and witnesses to Kasiari garha khet and pointed out the dead body of Chamin lying in a ditch covered with Ghunghu. The appellant then took the Sub-Inspector and the witnesses to Dungijharan Hills, where he pointed out the dead body of Somra lying in the slope of the hills to the north. The Sub-Inspector also recovered from the appellant’s house a chadar stained with human blood. The evidence of PW 6 shows that the appellant had gone to the forest on the morning of August 11, 1963.

The medical evidence discloses incised wounds on all the dead bodies. The injuries were caused by a sharp-cutting weapon such as a tangi. All the four persons were brutally murdered.

There is no eyewitness to the murders. The principal evidence against the appellant consists of the first information report, which contains a full confession of guilt by the appellant. If this report is excluded, the other evidence on the record is insufficient to convict the appellant. The principal question in the appeal is whether the statement or any portion of it is admissible in evidence.

The first information report reads as follows:

“My name is Aghnu Nagesia. (1) My father’s name is Lodhi Nagesia. I am a resident of Lotwa, Tola Jamtoli, Thana Palkot, District Ranchi. Today, Sunday, date not known, at about 3 p.m. I having come to the P.S. make statement before you the S.I. of Police (2) that on account of my Barima (aunt) Mussammat having given away her property to her daughter and son-in-law quarrels and troubles have been occurring among us. My Barima has no son and she is a widow. Hence on her death we shall be owners of her lands and properties and daughter and son-in-law of Barima shall have no right to them. She lives separate from us, and lives in her house with her daughter and son-in-law and I live with my brother separately in my house. Our lands are separate from the time of our father.

(3) Today in the morning at about 7-8 a.m. I had gone with a tangi to Duni Jharan Pahar to cut shrubs for fencing. I found Somra sitting alone there who was grazing cattle there. (4) Seeing him I got enraged and dealt him a tangi blow on the filli (calf) of right leg, whereby he toppled down on the ground. Thereupon I dealt him several Chheo (blows) on the head and the face, with the result that he became speechless and died. At that time there was none near about on that Pahar. (5) Thereafter I came to the Kesari Garu field where Somra’s wife Chamin was weeding out grass in the field. (6) I struck her also all of a sudden on the head with the said tangi whereby she dropped down on the ground and died then and there. (7) Thereafter I dragged her to an adjoining field and laid her in a ditch to the north of it and covered her body with Gongu (Pala ke Chhata) so that people might not see her. There was no person then at that place also.

(8) Thereafter I armed with that tangi went to the house of my Barima to kill her. When I reached there, I found that she was sitting near the hearth which was burning. (9) Reaching there all of a sudden I began to strike her on the head with tangi whereupon she dropped down dead at that very place. (10) Near her was Somra’s son aged about 3-4 years. (11) I also struck him with the tangi. He also fell down and died. (12) I finished the line of my Barima so that no one could take share in her properties. (13) I hid the tangi in the jhari of my Barima’s house.

(14) Later on I narrated the occurrence to my chacha (father’s brother) Lerha that I killed the aforesaid four persons with tangi. After sometime (15) I started for the P.S. to lodge information and reaching the P.S. I make this statement before you. (16) My Barima had all along been quarrelling like a Murukh (foolish woman) and being vexed, I did so. (17) All the dead bodies and the tangi would be lying in those places. I can point them out. (18) This is my statement. I got it read over to me and finding it correct, I affixed my left thumb-impression.”

We have divided the statement into 18 parts. Parts 1, 15 and 18 show that the appellant went to the police station to make the report. Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 disclose the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi and his ability to point out places where the dead bodies and the tangi were lying. Part 14 discloses the previous confession by the appellant. Broadly speaking, the High Court admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and 18.

On behalf of the appellant, it is contended that the entire statement is a confession made to a police officer and is not provable against the appellant, having regard to Section 25 of the Indian Evidence Act, 1872. On behalf of the respondent, it is contended that Section 25 protects only those portions of the statement which disclose the killings by the appellant and the rest of the statement is not protected by Section 25.

Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading “Admissions”. Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law.

Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: “No confession made to a police officer, shall be proved as against a person accused of an offence.” The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer.

Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides 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 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section.

Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.

Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.

The Indian Evidence Act does not define “confession”. In Pakala Narayanaswami v. King-Emperor [1939 IA] Lord Atkin [Judicial Committee] observed:

“(N)o statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession.”

Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him. The whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only.

The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.

Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.

If proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under Section 304-A of the Indian Penal Code and a statement made by him to a police officer that “I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; 1 made no attempt to stop the car; the car knocked down A.” No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under Section 304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement.

Again, take a case where a single sentence in a statement amounts to an admission of an offence. ‘A’ states “I struck ‘B’ with a tangi and hurt him.” In consequence of the injury ‘B’ died. ‘A’ committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negative the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.

If the confession is caused by an inducement, threat or promise as contemplated by Section 24 of the Evidence Act, the whole of the confession is excluded by Section 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by Section 24. To hold that the proof of the admission of other incriminating facts is not barred by Section 24 is to rob the section of its practical utility and content. Similarly, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.

A little reflection will show that the expression “confession” in Sections 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, Section 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.

We think, therefore, that save and except Parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of Section 27, the entire first information report must be excluded from evidence.

Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27, there is conflict of opinion.

For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant’s house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963.

This evidence is not sufficient to convict the appellant of the offences under Section 302 of the Indian Penal Code. In the result, the appeal is allowed, the conviction and sentence passed by the Courts below are set aside, and the appellant is directed to be set at liberty forthwith.

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Case Law on section 32(1) Evidence Act

                                                Khushal Rao     v.      State of Bombay      [1958 SC]

This appeal on a certificate of fitness under Article 134(1)(c), granted by the High Court at Nagpur, is directed against the concurrent judgment and orders of the courts below, so far as the appellant Khushal is concerned, convicting and sentencing him to death under Section 302 of the Indian Penal Code, for the pre-meditated murder of Baboolal on the night of February 12, 1956, in one of the quarters of the city of Nagpur.

It appears that there are two rival factions in what has been called the mill area in Nagpur. The appellant and Tukaram who has been acquitted by the High Court, are the leaders of one of the factions, and Ramgopal, PW 4, and Tantu, PW 5, are said to be the leaders of the opposite faction. Before the time and date of the occurrence, there had been a number of incidents between the two rival factions The prosecution case is that the appellant Khushal was on bad terms with Baboolal who was on very friendly terms with the leaders of the opposite faction aforesaid. Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tukaram suddenly attacked Baboolal with swords and spears and inflicted injuries on different parts of his body. The occurrence took place in a narrow lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached at about 9.25 p.m. The doctor in attendance Dr Kanikdale (PW 14) at once questioned him about the incident and Baboolal is said to have made a statement to the doctor which the latter noted in the bed-head ticket (Ex. P-17) that he had been assaulted by Khushal and Tukaram with swords and spears. After noting the statement aforesaid, of Baboolal, the doctor telephoned to the Ganeshpeth Police Station where the information was noted at 9.45 p.m.. On receiving the information Sub-Inspector A.K. Khan recorded and registered an offence under Section 307 of the Indian Penal Code, and immediately went to the Mayo hospital along with a head-constable and several constables. He found Baboolal in a serious condition and suspecting that he might not survive and apprehending that it might take time for the Magistrate to be informed and to be at the spot, to record the dying declaration, he consulted Dr Ingle, the attending doctor, whether Baboolal was in a fit condition to make a statement. The doctor advised him to have the dying declaration recorded by a Magistrate. The Sub-Inspector decided that it would be more advisable for him to record the dying declaration without any delay. Hence, he actually recorded Baboolal’s statement in answer to the questions put by him (Ex. P-2) at 10.15 p.m.

In the meantime, a Magistrate, First Class, was called in, and he recorded the dying declaration between 11.15 and 11.35 p.m., in the presence of Dr Ingle who certified that he had examined Baboolal and had found him mentally in a fit condition to make his dying declaration. Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public servants, Baboolal is said to have made oral statements to a number of persons, which it is not necessary to set out because the High Court has not acted upon those oral dying declarations. We shall have to advert, later, to the recorded dying declarations in some detail, in the course of this judgment. It is enough to say at this stage that the courts below have founded their orders of conviction of the appellant mainly on those dying declarations. Baboolal died the next morning at about 10 a.m. in hospital.

The legislature in its wisdom has enacted in Section 32(1) of the Evidence Act that “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question”, such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross-examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death, has been accorded by the legislature, a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circumstances which can be said to detract from the value of a dying declaration.

But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction.

Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But in our opinion, it is not right in principle to do so. Though under Section 133 of the Evidence Act, it is not illegal to convict aperson on the uncorroborated testimony of an accomplice, Illustration (b) to Section 114 of the Act, lays down as a rule of prudence based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.

On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination.

But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.

Let us examine the dying declarations now in question before us. The most remarkable fact which emerges from an examination of the three successive dying declarations made in the course of about two hours, by the deceased, is that he consistently named the appellant and Tukaram as the persons who had assaulted him with sword and spear. The injuries found on his person, namely, the punctured wounds and the incised wounds on different parts of his body, are entirely consistent with his statement that he was attacked by a number of persons with cutting and piercing weapons. No part of his dying declarations has been shown to be false.

The courts below also agreed in holding that Baboolal was in a position to see his assailants and to identify them in the light of the electric lamp nearby. They have also pointed out that there was no “coaching”. There is no doubt, therefore, that Baboolal had been consistent throughout in naming the appellant as one of his assailants, and he named him within less than half an hour of the occurrence and as soon as he reached the Mayo Hospital.

There was, thus, no opportunity or time to tutor the dying man to tell a lie. At all material times, he was in a proper state of mind in spite of multiple injuries on his person, to remember the names of his assailants. Hence, we have no reasons to doubt the truth of the dying declarations and their reliability. We have also no doubt that from the legal and from the practical points of view, the dying declarations of the deceased Baboolal are sufficient to sustain the appellant’s conviction for murder.

For the reasons given above, we uphold the judgment and order of the High Court convicting the appellant of murder and sentencing him to death. The appeal is, accordingly, dismissed.

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