RAMKISHAN MITHANLAL SHARMA v. October 22

escort party consisted of Brightling, Sarkari and Doctor and the peon Rama Madura and taxi No. BMT 1829 was sum moned 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 watch man, 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 driver Lawrence Quardros was at the driver's seat. Brightling got into the first and took his seat on the rear seat and was followed by Rama Madura. Sarkari went round in front an<l to the taxi driver. Rama Madura took his seat next after entering the taxi placed the bag on taxi''5 floor and was about to take his seat. Doctor was stand ing with his left hand on the rear door of the taxi on the Bank side waiting for Rama Madura to take his seat. that accused 1, 2 and 4, Rubidas and Bankelal attacked the taxi and the escort party. One of these persons first wrenched open door to the taxi driver's twice with a revolver. One of these shots caused an injury to Lawrence Quadros near the collar bone, which almost imlantaneously 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 behind this one when the driver was shot, and he pulled out Lawrence Quadros from the taxi and took his seat at the steering wheel. That man was Rubidas-one time a motor driver in the employ of the Pan American Airways at Delhi. Accused 1 also armed with a revolver stood on the road side of the seat, leaned inside It was at this juncture 1954 Ramkishan Mithanlal Sharma v. TheState of Bombay. BhagwatiJ. .. j S.C.R. SUPREME COURT REPORTS 909 realised taxi. and fired twice at the taxi from that side and ac cused 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 natural ly got out of his seat to inspect the tyres but hearing further shot~ lie 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 taxi was surrounded, zig and then seeing zagged 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 nea:r it, opended 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 Doctqr 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 shot at him injuring him in his right eye. That injury resulted in the total loss of his right 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 revolver." During the course threatened him with his at Rama of the attack someone of these men shot Madura. Rama Madura became accused 2 and another dragged him out from the taxi. The taxi was then started whereupon Brightling, who was still on Bastion Road, after making signals to Cash Department to show as to what was taking place picked up a motor cycle parked near the corner of the Parsi Lying-in-Hospital and threw it in the way of the taxi but Rubidas, who was driving that taxi, managed to drive it away. The taxi however had to be first driven at a slow speed and one Major Casey, who was standing at the corner of the foot-path· saw the whole of the incident and also those inside the taxi when it was unconscious 1 954 Ramkishan Mitl; anlal Sharma v. Tht Stateof Bombay. BhagwatiJ. ) -- 910 SUPREME COURT REPORTS [1955] surrounded taxi and its inmates and after driven past him. The prosecution alleged that accused 1, 2 and 4, Rubidas and Bankelal snatching attacked away the bag tied to Rama Madura's belt with the cash containing Rs. 12 lakhs taxi. Brightling and some other employees of the Bank after some time secured a car which was parked nearby and round in search of the taxi but to no purpose. the Esplanade Brightling then reported the matter Police Station but before the telephone operator of the Bank, Mrs. Paterson who with Miss Vida Palmer, a clerk, had seen the incident from 'the window on mezzanine floor had telephoned to the police and several police officers arrived at the Bank soon after. Lawrence Quadros was already dead and his body was sent to the morgue. Doctor, Kadam and Rama Madura, who had all been injured, were sent to St. George's Hospital. The taxi which was driven away by Rubidas with the accused and Bankelal seated therein was found aban doned at about 1-30 P.M. on that very police not far from the Kashmir Hotel. The police made various efforts to trace accused 4 and Bankelal but \Vere unable to find them and they therefore charge-sheeted accused 1, 2 and Ruhidas (who was original accused 3) and they were all committed to Sessions Court. After those stand their trial arrested on proceedings were over the accused 4 was the 25th December, at Bareli Station, and he too was charge-sheeted and was committed to Sessions. Rubi das, 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 sections 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 inc.ident in question which took place in the morning of the 20th April, 1951. in Bombay, Though conceding that they had accused 1 and 4 contended that 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 jn question but were in Allahabad where they had filed accused 1 had -- ...,_,. ; S.C.R. SUPREME COURT REPORTS 911 two affidavits before one Tondon, 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 the 20th April, when he left Bombay for Delhi. His case was that he had come to Bombay to make purchases for his wedding and his to do with the business and incident in question. that he had nothing 1954 Ramkishan Mithanlal Sharma v. The State ef Bombay. BhagwatiJ. activities revolvers and the Before the learned Sessions Judge the prosecution led the evidence of various witnesses. That evidence may be grouped into three heads. One part of the evidence related to the movements and the :accused before the 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 recoveries of the tin identification of the accused, the live cartridges, box containing the the steel trunk containing six 'thappis' and five bundles 'Of 100 rnpee notes and disbursements of cash by the accused towards the end of April, or the beginning of May. The accused were represented by counsel csearching and vigorous cross-examination was address ed to all the prosec.ution witnesses. The the special addressed <Considerable time. The counsel learned jury at considerable length and the Sessions to the special jury Judge summed up ~the whole case It was a in a charge which took well-nigh three days. in several and a fair very exhaustive respects was favourable The learned Judge summed up the evidence which had been led by the prosecution, pointed out the defects as in the evidence of the several witnesses, contradictions administered the necessary warning in regard to the evicence of the identification parades, considered the accused separately and marshalled cases of each of led by the prosecution the evidence which had been to the jury against each of them and fairly put to the accused. charge 1954 Ramln'shan Mithanlal Sharma v. The Stale of Bombqy. BhagwatiJ. 912 SUPREME COURT REPORTS [1955} before they questions which they had to determine jury took time ti:> could arrive at their verdict. The consider their verdict and stated above unanimous verdicts of guilty against all the accused in ,·- respect of both the charges. returned as This being a trial by jury the appellants in order to succeed would have to establish that there were serious Judge's misdirections or non-directions in the charge to the the verdict. jury such as would vitiate The main contentions which were urged before us by the learned counsel for the appellants were :- learned ( 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 the learned jury which had the effect of Judge's charge to the. misleading the jury or were in any event such 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) Tl;iat the evidence in regard to the test identifi instance of the police and supervision was hit by section 162 cation parades held at the under their active of the Criminal Procedure Code; and (2) That the statement of the police officer that it was "at the instance of" or "in consequence of certain statement by" discoveries were made was by section 27 of the Indian Evidence Act. accused certoin 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 provi sions 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." ) . ,... ·-·V Ramkishan Mithanlal Sharma:. v. The State ef Bombay. Bhagwati]. ... - S.C.R. SUPREME COURT REPORTS 913 applicable There was a proviso to that section which enabled such statements to be used by the accused to impeach the credit of such witness in the manner provided by It may be noted that the Indian Evidence Act, 1872. under section 1(2) (a) of the Criminal Procedure Code the Code did not apply to the police in the towns of Calcutta and Bombay and therefore section 162 of Criminal Procedure Code was not investigations made by the Bombay City Police. On the 11th June, 1951, the State Legislature passed (Bombay Act XXII of 1951) . Bombay Police Act 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 the provisions of section thus bringing into operation 162 thereof m Bombay City Police. Section 162(1) of the Criminal Procedure Code provides :- investigations conducted "No statement made by any course of an investigation under person to a police officer m Chapter shall, if reduced into writing, be signed by the statement or any person making it; nor shall any such thereof, whether in a police-diary or otherwise, record statement or record, be used for or any part of such hereinafter provided) any purpose (save as of any offence under respect trial m mqmry or investigation at the such statement was made." time when There is a proviso to this sub-section which enables the accused to use such statements to contradict witnesses in the manner provided by section 145 of the Indian Evidence Act. The 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 course of the investigation also came within the ban of section 162 and could not be used for any purpose save that specified m the proviso to section 162(1). investigations officers m to police 1954 Ramkishan Mithanlal Sharma v. The State of Bombay. BhagwatiJ. 914 SUPREME COURT REPORTS [1955] .They applied inadmissible be retrospective reason against it or unless The provisions of section 162 applied this chapter", the Criminal facie did not apply investiga tions conducted by the Bombay City Police from and after the !st August, 1951. investi i.e., investigations con gations "under Procedure Code, and ducted therefore prima the investiga tions 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 that altera vested right in any course of procedure, unless tions in procedure . were to there was some good [ vide Banwari construction be textually Gope v. Emperor( 1 ) and Delhi Cloth Mills v. lncome tax Commissioner, Delhi(')], the ban under section 162 was operative when evidence in regard to the test identification parades was led before the learned Sessions J u<lge all evidence in identification parades whether regard to they had been held before or after the 1st August, 1951, the other hand was inadmissible. by the learned Attorney-General for respondents 167 (2) of the Bombay Police Act XXII that section of 1951 saved by clause (b) thereof any right, privilege, obligation or accrued or already incurred before such date and by clause ( d) thereof any legal proceeding or remedy in respect of investigation, penalty, privilege, right, forfeiture or punishment 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 Procedure Code. Both Section 167 (2) could these contentions are untenable. only apply obligations or liabilities already acquired, accrued or in incurred under the City of Bombay Police Act IV of 1902 before date of its repeal. An investigation conducted by that Act would not police under the provisions of ( 1) A.I.R. 1 943 Pat. 18. obligation, It was contended on and that rights, privileges, (2) A.LR. 1927 P.C. 242. acquired, therefore therefore liability, liability -- - 1954 Ramkishan Mithan/al Sharm~ v. Th< SttA of Bombay. Bhagwati]. - ... S.C.R. SUPREME COURT REPORTS 915 \Vould be be saved by the police and referred Bombay Police Act to the investigations i.e., Chapter XIV which create or impose any right, privilege, obligation liability which could the provisions of of the Bombay Police Act XXII of section 167(2) The investigation which had been conducted 1951. up to the 1st August, 1951, governed by IV the provisions of City of in the Bombay of 1902 and unless there was something Police Act XXII of 1951 which investigations incidents of investigations, all the 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 provisions of that Section 162 of the Criminal Procedure Code in Act. conducted "under terms applied this Chapter'', relates their powers to investi information gate, whereas section 63 of the City of Bombay Police investiga Act IV of 1902 specifically i.e., the City of tions copducted "under Section 162 of the Bombay Police Act IV of 1902. Criminal Procedure Code therefore by reason of the context and the terms of that verv section investigations which had condu~ted by Bombay City Police after the 1st August, 1951, and operation, because would not have a retrospective investigations conducted up the 1st August, 1951, by the Bombay City Police would certainly not be this Chapter", ·i.e., investigations Chapter XIV of the Criminal Procedure Code. There these contentions is no substance therefore in either of and the question as to admissibility in evidence of statements made in the course of investigation the City of Bombay Police Act IV of 1902 would have to be considered in the light of the provisions of sec·· tion 63 of that Act and not section 162 of the Criminal Procedure Code. referred this Ac_t", conducted applied "under · It may be noted that the test identification parades in regard to the accused 1 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 the evidence m Procedure Code being applicable to 916 SUPREME COURT REPORTS [1955] 1954 Ramkishatt Mithanlal Sharma v. The State of .Bomba7. BhagwatiJ. 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. conflict of There has been a opm1on between the admissibility of various High Courts in regard to test identification parade,. evidence in regard to these The Calcutta High Court and the Allahabad High Court have taken the view that identification of a per- section 162 and son amounts that therefore is not admissible in evidence. The High Court of Madras and the Judicial Commissioner's Court at Nagpur have taken the contrary view. the fact of such identification to a statement within In Khabiruddin v. Emperor(') the question arose as to the admissibility of identification of stolen property during investigation in the presence of police officers all kinds of and it was held that section 162 embraced statements made to a police officer in the course of an investigation, that the evidence of the fact of identifica tion is nothing but evidence of the statements which the identification in a compendious and con constitute cise form and that therefore any identification of stolen property in the presence of a police during investigation was a statement made to a police officer during investigation scope of section 162. Pointing out by finger or nod of assent in answer to a question was held as much a verbal statement as a statement by word of mouth and no distinction was made between the mental act of the communication of identifier on the one hand and to another on the other. Even the fact of identification by the identifier himself apart from the communication thereof to another was considered to be within the ban of section 162. This decision was commented upon identification by him therefore within Dinda v. Emperor( 2 to the admissibility of the evidence of in Surendra ). There also the question arose as sub-inspector and was officer (1) A.LR. 1943 Cal. 644. (2) A.LR. r949 Cal. 5r4. , -{ ' -- - ,..._ 1 · 1954 Ramkishan Mithanlal Sharma v. Th4 State of Bombay. Bhagwati]. -·- - S.C.R. SUPREME COURT REPORTS 917 It meant a statement, but the identification the articles <0f police that the witnesses told him that produced by him were identified by them as their pro perty and the statements by the witnesses themselves that they had identified the articles to the sub-inspector. a double It was held that the word "identified" had recognition as meaning. the fact of actual well as the communication of that fact to a third per 'SOn. There was distinction between on the one hand the actual fact of identification which is a mental act -011 the part of the person identifying, seeing an object or person and recognising that the object or person seen was identical with some particular object or per son and on the other hand the communication to a communication third person of this mental act. The was of course 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 identifier himself was not inadmissible by the actual under section 162. The Court further observed that it was not the actual act or process of seeing or recognis ing the accused in the presence of the officer which was .affected by the provisions of the section, communication of that fact to tlle police officer of which proof could not be given. to the evidence of the .accused was entitled to object sub-inspector, the arti des to him or the evidence of the witnesses when they the presence of said they "identified" the articles 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 recognition to the sub-inspector. that the witnesses "identified" It therefore held that it was The Allahabad High Court in Daryao Singh v. State( 1 ) this decision of the Calcutta High Court in followed terms without adding any comments of its own. (1) A.LR. 1952 All. 59· 1954 Ramkishan Mithanlal Sharma v. The Stale of Bombay. BhagwatiJ. 918 SUPREME COURT REPORTS (1955] These decisions of the Calcutta and the Allahabad between the the communication. of High Courts seek to make a distinction mental act of identification and that fact to another person. The mental act of identifi is not hit by section 162 but the communication cation thereof to another person either by an oral statement or even by signs or gestures including the pointing out by finger or nod of assent m answer to a question put to the identifier in that behalf would come within the ban of section 162. Anything which amounts to a com- . fact of such i<leQtification by the· munication of the identifier to another person is banned and no evidence in respect thereof can be given m a Court of law under section 162. police m the course The High Court of Madras on the other hand in In re Kshatri Ram Singh(') took the view that any evidence about the statements made by witnesses at the identifi cation parades held by the investigation was excluded by section 162, but the fact that witnesses had identified persons at parades held by In coming to this conclu the police might be proved. sion the High Court followed an earlier decision of a reported m Guruswami T hevan v .. Division . Bench Emperor('). In that case an objection had been taken· identification parade to the admission of a note of an held by the police sub-inspector. It was contended that the document embodied a record of statements made· by identifying witnesses sub-inspector and as section 162. Mr. Justice· such was inadmissible under 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· for which he· some statement or other as to the purpose identifies him and anything said by a witness at an identi- fication 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 pick-. ing out one individual from a parade was a revelant is admissible circumstance concerning which evidence and if the investigating officer made a note of that cir there was no· mmstance which he himself had observed, (1) A.LR. 1941 Mad. 675. (2) 1936 M.W.N. 171- -- t: ·- - ·1954 Bamkishan -Mitha~lal Shanna "' The State 71f . Bombqv. !Jhagwati J. ,• ( . ' - j ... ·, ... r S.G.Ri I , . SUPREME COURT REPORTS 919 If in the course of apparent reason why· that note should not be used · in evidence. that note he appends ari 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 to the document in question and the bare that criterion the names of the note of the personnel of the parade, witnesses, the way iµ 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 identifica tion of witnesses of the persons as having been con the subject cerned matter of investigation. A distinction was thus made between the statement made persons offence. in the murder cases which were identified having been regards 111 physical fact of the identifier identification concerned ) The Judicial Commissioner's Court at Nagpur 111 Ramadhin Brahmin v. Emperor( 1 expressed a similar opinion that evidence of police officers who give evi dence with regard to the identification parades which were held and who depose to certain of the accused having been identified by prosecution witnesses 111 an identification parade was not inadmissible under section 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 to be ·proved by physical . fact of identification sought the statements the evidence of the police made by the identifier to the police . officers and the purpose identification In order to resolve this conflict of opinion one has to parades. exam111e These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject-matter .who are con of the offence or to cerned in the offence. They are not held merely for the. purpose of identifying property or persons irrespective of their connection with the offence. Whether the police identify the persons (1) A.I.R. 1929 Nag. 36. 3-89 S. C. India/59 1954 RizmkUhan ·Mithanlal Sh"a;ma v. The S att of Bombay. BhagwatiJ. 920 SUPREME COURT REPORTS [1955] are asked to identify the identifying witnesses or officers interrogate Parrch witnesses who are procured by the police ·do so, the purpose of the identifying witnesses are explained holding these parades and 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 that the identifying witnesses identified were the ·subject-matter particular properties of the offence or the persons identified were concerned in the offence. This statement may be express or im plied. Tl>e identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the par ticular property identified was subject-matter of the offence or the person identified was concerned in the offence. All these statements express or implied includ ing the signs and gestures would amount tO a commu nication 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 per son is quite logical and such communications are tant amount to statements made by to a identifiers police officer in the course of investigation and come within the ban of ·of identification has thus no separate existence apart from the statement involved in the very process of identifi cation and in so far as a police officer seeks to prove the fact of such of his would attract the operation of section 162 and would the only exception being be inadmissible in evidence, the evidence sought to be given by the identifier him self 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 there fore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken section 162. The physical such evidence identification ,, , i < - - • S.C.R. SUPREME COURT REPORTS 921 by the Madras High Court and the sioner's Court at Nagpur. Judicial Commis 1954 Ramkishan Mithanlal Sharma v. The State ef Bombqy. Bhagwati • .. ,L - arranged by 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 state ment made to the police officers would be within the the test identifi ban of section 162. But if in spite of cation parades having been the police Panch witnesses were called by the police and they ex plained to the identifying witnesses the purpose of the identification was made by the wit parades and the nesses before them though in the presence of the police officers, the Panch witnesses could certainly depose to the fact of identification as also the statement made by attracting the identifying witnesses to them without the operation of section 162. He further urged that in such a case the identification would amount to a state ment to the Panch witnesses even though the police offi cers 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 circum stances of each case. [Vide Abdul Kader v. Emperor(1) and Rao Shiv Bahadur Singh v. State of Vindhya ) ] • He contended that the test identification Pradesh (2 parades were held in the present case the presence of the Panch witnesses who were called by the police that the Panch witnesses for witnessing explained to each identifying witness the purpose of holding the parade, that the identification took place in the presence of the Panch witnesses who noted down the result of the identification, that Panchnamas were pre pared by the police after the identification was held and were signed by the Panch witnesses and that there fore the identification of the accused by the identifying witnesses amounted to statements made by the identi fiers to the Panch witnesses and not to the police and evidence in that behalf given by the Panch witnesses was therefore admissible in evidence. same, (r) A.LR. 1946 Cal. 452. (2) [1 954] s.a.R. 1098. T'

1.954 Ra'!lkishr; in .¥_ith~nlal Sharmq. Y· T ht State af. : Bombay. BhagwatiJ. 922 SUPREME COURT REPORTS .[1955] arranging the learned This argument would have availed test identifi Attorney-General if after cation parade the police had completely obliterated themselves and the . Panch witnesses 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 Panch witnesses the parade and would also call 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 the purpose of Panch witnesses thereafter explained 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. · identification parades in the present case however the police officers were present all throughout the process of identification an_d the Panch witnesses appear only to have been brought in there for the purpose of prov the matter of ing that the requirements of fully satisfied; holding Not only were the police officers present when the identifying witnesses were brought into the room one they also after the other and identified prepared the Panchnama, contents thereof attested the signatures of the Panch witnesses which were appended by them at the foot of the Panchnama. identification parades were thus The whole of the 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 circumstances great reluctance in holding under these the process that the statements, if any, involved in identification were statements niade bv the indentifiers to the Panch witnesses and not to th~ police officers as the identification parades were read out and explained the Panch witnesses, In the case of accused, - ·- .. S.C.R.·· SUPREME COURT REPORTS; 923- the police . · officers to otherwise it will be easy the provisions of section 162 by formally circumvent asking the Panch witnesses to be present and contend ing that the statements, if any, made by the identifiers were to the Panch witnesses and not to themselves. We are therefore of the opinion that the test identification to the accused 4 which were held parades in regard January, and the 22nd January, 1952, between the 16th section 162 and the evidence attracted the operation of parades was inadmissible of identification at against accused 4. 1954 RanikisMn .•. Mithanlal Sharma v. The Stat• of Bombay. BhagwatiJ; The question as to the admission of evidence inadmis sible under section 27 of the Indian Evidence Act really lies within a narrow compass. The coritention in this behalf was based on the evidence of the Investi gating Officer, Hujur Ahmed Khan, that on the 16th the accused 1 made a certain statement in May, 1951, consequence of which he took accused 1 and 2 to Itawa and leaving the accused 2 :there the party proceeded to Bhagwasi with the accused 1 and his further evidence that the accused 1 there pointed out Baliram who at the instance of accused 1 dug out from a mud house a tin box containing three revolvers and two tins contain ing live cartridges. Exception was taken to the expres sions "in consequence of a certain statement made by 1" accused 1" and "at which it was argued canie within the . ban of section 27. Section 27 of the I11dian Evidence Act nins as under:- of accused instance - "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 ah exception to· the rules enacted m sections 25 and 26 of the · · Act which provide that no confession made to a ·police officer · shall be proved as that · nb against a person accused of an offence ·confession made by any person- whilst · he is in the in the rnstody of a police officer,· unless immediate presence of a Magistrate,. shall -be ·proved' as it be made· ·. and · Ramkishan Miliianlal Sharma v. Thi State of Bombay. BhagwaJ.iJ. 924 SUPREME COURT REPORTS [1955] the information as to emphasise · the position against such person. Where however any fact is dis covered in consequence of information received from a person accused of any offence, in the custody of a police relates distinctly officer, that part of to the fact thereby discovered can be proved whether it amounts to a c9nfession or not. The expression "whether it amounts to a confession or not" has been that even used in order though it may amount to a confession that much infor mation as relates distinctly to the thereby dis covered 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 thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered information is required to relate. to which such [ Kottaya v. Emperor (') ]. On a bare reading of the terms of the section it appears that what is allowed to be proved is the infor mation or such part thereof as relates distinctlv to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and the police officer is obviously precluded from prov thereof unless it comes ing the information or part If the police within the four corners ·of the section. 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 If proof thereof only if that condition was satisfied. however the police officer does not want to prove the ·not information or any part thereof, section 27 does \Vhat was stated by the come into Investigation Officer, Hujur Ahmed Khan, in the present .case was that certain information was supplied to him by the accused 1 in consequence of which he certain steps. He did not seek to prove that informa tion or any part thereof in the evidence which he gave before the Court. Even when he said that Baliram dug out the tin box from the mud floor ·of a house at operation at all. (•) A.LR. 1947 P.C. 67. 1 < - .. 1954 Ramkishan Mithanlal Sharma v. The State ·Bombay. BhagwatiJ. -- S.C.R. SUPREME COURT REPORTS 925 to the consequence an unreported specifying what in that case was prevent that evidence the police officer that in the instance of the accused 1 he did not seek to prove what that information was. The operation of section 27 f acie there was was therefore not attracted and prima being admitted nothing against the accused 1. Reliance was however placed judgment of Chagla C.J. and Gajendragadkar J. delivered on the 11th January, 1950, in Criminal Appeals No. 454 of 1949 and No. 464 of 1949 with revisional application No. 952 of 1949 in the case of Rex v. Gokulchand Dwarkadas Morarka No. 1. statement An exception was of certain the accused 1 and 2 in that case statements made by he discovered the missing pages of the Bombay Sama char of the 23rd April, 1948, and it was contended that that statement was inadmissible evidence. The question that really arose for the consideration of the joint statement attributed Court there was whether the to the accused 1 and 2 admissible statement was made by a without the discovery of particular accused which relevant fact and it was rightly held that a joint state ment by more than one accused was not contemplated section 27 and the evidence of Mistry, the police therefore have been officer, in excluded. An argument was however addressed by the State learned Advocate-General who appeared for the 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 op1mon, this is a roundabout and objec statements tionable way of attempting to prove proving accused without them. When the police officer speaks of "in conse quence of a statement made by an accused a discovery the discovery. was made'', he involves the accused in Whether he gives evidence as to the actual words used by the accused or not, the connection between the the accused and the discovery of . statement made by In our opinion, the relevant fact is clearly hinted at. that behalf should actually 926 SUPREME COURT REPORTS [1955] 1954 Ramkishan Mithanlal Shaim4 V• The. Slate of ./Jombaj. IJhagwqtiJ. therefore, evidence cannot be· given of any statement results in the discovery of a made "by accused which laid down under' fact unless it satisfies the conditions section 27 and this would be so even the actual by the pro statement is not attempted to be proved secution. statement must be section 27." if the statement is not proved, such· as can be proved Even The learned Judges then .proceeded to consider the observations of Rankin C.). in Durlav following Namasudra v. Emperor(') : "There seems to me to be nothing in section 24 or 25 to prevent evidence being given: 'In consequence of something said by the accused I went to such and such a place and there found the body of the deceased.' In cases under section 27 . the witness may go further and give the relevant part ?f the confession.'' The learned Judges expressed their inability to agree with this view of the law observing that Rankin C.f. the various sec _was really dealing academically with tions 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 com mitted the same error which they thought Rankin C.J. had committed, because observed:- immediately thereafter this case, "We would also like to add that, in the circum somewhat stances of academic, because even if we accept the contention of that the statement of the Advocate-General and hold ·the investigating officer sibly help the prosecution case very much." is admissible, it cannot, discussion What they were considering was the case of a joint statement made by the accused 1 and 2 in that case and these observations made by them expressing their inability to agree with Rankin C.J.'s view of the law . were clearly obiter. · The evidence of the police officer would no doubt go to show that the accused knew of the existence of the :fact discovered in consequence of information given by . (1) (1931)·!.L.R. 59 Cal. 1040, 1045. •' 1 . • -- .. ; S;C.R. SUPREME COURT REPORTS. 927 show his direct him. But that would not necessarily -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 e~idence could certainly be given of that circumstance without the operation of sec attracting tion 27. Ramkishan· Mithanlal 'Sharma. v. The State of' Bombay. Bhaf; watiJ. If it .were necessary to do so we would prefer to accept the view of Rankin C.J. to the one expressed by the 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. learned to vitiate Turning now to the misdirections and non-directions the verdict of the jury, the main :Such as misdirection which was pointed learned out by ·counsel for all the accused before us was in regard to four or five persons were con the question whether the commission of the offence. Particular ·cerned in learned to paragraph 59 of exception was Judg~'s charge to the jury :- "Brightling, Baburao R~je, Miss Vida Palmer, Mrs. Paterson and witness Sarkari, if you were to accept his evidence here on this part of the case, were all defi nite 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 more2 which means that he was not certain about . the number. If you were to find from the statement of Casey some men trying to pile into the taxi from the rear door of the that there taxi on the Bank side, were at least five men concerned even according ~sey. Consider this _qm; stion and then you find after scrutiny of this evidence tl1at there ·were at least five men conjointly concerned then only the evidence tion 395 would apply. That .. briefly . was so far as the question as to the number of men is c_oncerned." .::i Our ·attention was drawn to the evidence of. tl1ese several. witnesses •and it was pointed out· that far from that · would suggest that he saw ca, refully. ' . t -- - t ' 1 954 Ramldshan Milhanlal Sharma v. The State of Bombay. Bhagwati]. 928 SUPREME COURT REPORTS [1955] 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 occupy ing 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 pm secution. Exception was also taken to the manner in which the expression "piling into the taxi from the rear door of the taxi on the Bank side" was sought to be thus belittling the interpreted by the learned Judge, significance of the evidence of Major Casey that when the taxi went past him he saw two persons in the front It seats and two persons in the rear seats of the taxi. was further pointed out that according to the evidence of Miss Vida Palmer and Mrs. Paterson there were only five or six 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 passers-by or Baburao Raje or Sarvarkhan, who happened to be present there at the scene of the occurrence and were certainly not concerned offence. that Holmes, the also pointed out It was sub-manager of the Bank, who witnessed the occurrence from behind the double glasses of the windows was not in a position to know how many persons actually in a position to see part in the affair and was also not how many persons had got into the taxi. We have carefully considered these criticisms of the evidence of ihe several witnesses but are unable to come to the conclusion that there was any misdirection on the part of the learned Judge in his summing up to jury. The evidence of · each of these witnesses was discussed by the learned Judge and the main defects and con tradictions in their evidence were clearly pointed out by him to the jury. The actual words used by him the several in the paragraph in question were that witnesses were all definite ·or more men surrounding taxi and concerned m the attack and on the evidence as a whole we do not ·see any exception to the correctness of that statement. T-he explanation which was given of the expression the commission there were • 1 ' • - .. .; I < 1954 Ramkishan Mithanlal Sharma v. The Stoteof Bombay. Bhagwati ]. -- - S.C.R. SUPREME COURT REPORTS 929 that expression to mean that more "piling into the taxi from the rear door of the taxi on the Bank side" was also unobjectionable. The. words certainly be appropriate "piling into the taxi" could of "some when describing the getting into the taxi certainly was other persons" capable of being understood one person was trying to get into the taxi from its rear door on the Bank side. All these points were clearly Judge to the jury and we are of the put by the learned opinion that there was no misdirection at all in that It part of the learned was strictly within the province of the jury on the evid ence as it was summed up by the Judge to them on this aspect of 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. Judge's summing up to the jury. the question learned the learned the serious misdirection which The other misdirections which were sought to pointed out by counsel for the accused 1 and 2 were minor misdirections, if any, and need not detain us, as we are clearly of the opinion though those misdirections were there they were not such as to vitiate the verdict of the jury. We must however advert was contended was apparent on the face of the learned jury and which was the result of Judge's charge to the bringing into prominence the the learned Judge's not various points which could be urged in favour of the It was contended accused. the learned Judge the story of the merely prosecution and did not point out the weaknesses the defects in that story, that he did not advert to the various criticisms which were levelled 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 prosecu tion witnesses in regard to the salient of the prosecution case, that he did not draw the pointed attention of the jury to the infirmities attaching to ·the regard to the test identification prosecution evidence in parades and that the learned Judge's summing up to reiterated in various places features 1954 Ramkishati. .Mithanlal Sharma "" The siate.ef..: .Bombay. Bhagwali·J· 930~ SUPREME COURT REPORTS" [l955J. the jury wa' on ·the whole unfair :ind prejudicial to ·the accused. to charge prosecution to bring out the lights and Section 297 of the Criminal Procedure Code lays down that i11 cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are ·con the jury, cluded, the Court shall proceed summing up the evidence defence, and laying down the 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 thev are within the exclusive province of the jury. But ~ven there the Judge has to and defence. sum up the evidence for the prosecution Summing up does not mean that the Judge should give mere! y a summary of the ·evidence. He must marshall the evidence so as shades, the probabilities and the improbabilities so as to give proper assistance to the jury who are required to decide which view of the facts Ilu v. Emperor('). The Judge should give the jury the help and guidance which they are entitled to expect the Judge and which it is his duty to give. The charge long rambling repetition of the should not consist of a evidence, without any attempt the facts to marshal! the jury to sift under appropriate heads, or to assist and weigh the evidence so that they will be in a posi tion to understand which important really and which are of secondary parts of ·criminal case for importance. 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 · Nabi Khan . v. of very It has been observed by ·the Privy Council Emperor(2). however in Arnold v. King-Emperor("), that- It is necessary in every importance. Vide is true. Vide the evidence are the little -- - "\ . If "A charge to a jury must be read as a whole: there are salient propositions of law fo it, these wiLI, of course, be the subje.ct of separate analysis. But in a the determination of which protracted narrative of fact is ultimately left to the· jury, it must needs be that the (1) ·,\.i:R. 1g34 Cal. 847. • •:-.--. r2yA.~·.R.· .1936 Cal. 1'86. .. (3) (f!J<4FI.L.:R: 4' Cal. 1023. ·: ·_,··-;:. . . . S.C.R. ,SUPREME COURT REPORTS . . 931 view of the Judge may not coincide with the view .of others who_ look upon the whole proceedings in black It would, however, not be in accordance with type. usual or good practice to treat such cases as cases of 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 Comrµittee would not thing gross amounting to a complete misdescription of the whole bearing of the evidence has occurred." interfere unless · Ramkishan Mithanlal . -Sharma .v. The' State of Bombay. BkagwatiJ. the defence in the evidence of the evidence of Bearing these principles in mind we have got to levelled against the scrutinise how far these criticisms jury are of any avail. learned Judge's charge to We have been taken into the several witnesses in great detail by the learned counsel for the accused but. we are unable to .come to the conclusion that there is any serious misdirection such as to vitiate the verdict of the jury or that there has been a failure of. justice. The learned Judge's charge to- the jury has been scrupulously fair and he has in several places brought out the points which militate against the stmy of the prosecution and support version. He has been at pains to point out_ the various defects and contradictions the prosecution witnesses and has fairly put it to the jury to consider whether in view of the same they would accept 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 the evidence of the which have been levelled against prosecution witnesses in regard to each of the accused. Apart from the general observations which he made in regard to the scrutiny of identification parades he has also in appropriate places reiterated the warning in regard to that evidence and has put the jury wise to the whole position in regard to such evidence. On reading the charge as a whole we are of · the opinion the learned Judge's charge to the to use the words of their Lordships of the Privy Council, "amount to a complete misdescription of the whole bearing the evidence''. . or that "there is any failure ·of justice." that there is nothing in jury which would, the evidence of - .... ,. 1954 Ramkishan .Milhanlal Shtllma v. The State of Bombay. J:lhagwati ]. 932 SUPREME COURT REPORTS [1955] 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 verdict of the jury. such as to vitiate The result therefore 1s that so far as the verdict of the jury against accused 1 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 therefor.e 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 Proce dure 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 effect of the admission of such inadmissible evidence so far as that accused is concerned. to consider what would be therefore that this inadmissible evidence jury and relied upon the Learned counsel for the accused observations in Kabirttddin v. Emperor( 1 ), 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 not have considerable effect on verdict. He therefore urged that the verdict should be set aside and the case remanded for retrial. A later decision of the Calcutta High Court reported in Surendra Dinda v. Emperor('), however, took the view that every breach of section 162 would not vitiate a trial. Recep tion of evidence inadmissible under Section 162 was not necessarily fatal and in an appeal the Court had to see whether the reception influenced the mind of the jury lead them to a conclusion which so seriously as might have been different but for It must always be a question whether prejudice had been caused in such cases, and, if not, whether the materials its reception. (1) A.I.R. 1943 Cal. 644, 646. {2) A.I.R. 1949 Cal. 514. • 1 ' -- .. . . ... ._ ... T S.C.R. SUPREME COURT REPORTS 933 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 Indian Evidence Act. Section 537 section 167 of the of the Criminal Procedure Code provides :~ 1954 RamkishMI Mithanlal Sharma v. The State of Bombay. Bhagwati]. "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of reversed or altered competent appeal or revlSlon on under Chapter XXVII or on account ....... . jurisdiction shall be ( d) of any misdirection in any charge ... : ...... unless such ............ misdirection has fact occasioned a failure of justice." to a jury, improper admission or Section 167 of the Indian Evidence Act provides : "The rejection of evidence shall not be ground of itself for a new trial or reversal -of any decision in any case, if it shall appear to the Court before which independently of the evidence objected to and admitted, the decision, or there was sufficient evidence to justify that, if the rejected evidence received, ought not to have varied the decision." such objection is raised, it was laid down The latest pronouncement on this question was .decision of the Privy Council in Abdul Rahim v. King Emperor(1), where that where inadmissible evidence had been admitted in a criminal case tried with a jury, the High Court on appeal may, in view of section 167 of the Indian Evidence Act after excluding a conviction, provided evidence remaining was, in the opinion of the Court, sufficient dearly to establish the guilt of the accused. It was observed that;- evidence, maintain inadmissible admissible itself a sufficient ground "Misdirection is not the verdict. The High to justify interference with Court must under the provisions of section 423, sub section 2 and section 537 of the Criminal Procedure Code proceed respectively to consider whether (1) (1946) L.R. 73 I.A. 77- :934 .SUPREME" COURT REPORTS [1955} ·1954 . Romkishan :.lefitf!a,nlal S~a,rma . v. The State of .· Bf}mbay. ,B_h.agwa# J. verdicr is erroneous owing to the misdirection or whe ther the misdirection has in fact occasioned a failure of If the Court so finds, then its duty is to interfere . justice. In deciding whether there has been in fact a failure of the High justice in consequence Court is entitled into considera there has been a tion and determine for itself whether that a guilty man has failure of justice in the been acquitted or an innocent one convicted." to take the whole case of a misdirection there has the merits of and has that it should consider This decision was followed by our Court in Mushtaq Husain v. State of Bombay(') and the Court held th\(t where a jury has been misdirected based its Supreme verdict on assumptions and conjectures, Court may order a retrial or remit the case to the High Court with a direction merits of the case in the light of the decision of the been a Supreme Court and say whether failure of justice as a result of the misdirections, or it the case and decide · for may examine itself whether there has been a failure of justice in th~ there has been in case and that in deciding whether fact a failure of justice in consequence of a misdirec tion the Court would be entitled to take the whole case into consideration. the statute law in India which in certain circumstances permitted an appeal against a jury verdict itS appellate Court to substitute own consideration of the evidence and came conclusion that unless it was established in a case that there had been a serious misdirection by the Judge in jury which had occasioned a failure of charging the justice and had misled the jury in giving its verdict,. the verdict of the jury could not be set aside. authorised its own verdict on This Court discussed What has therefore got to be done in cases where. inadmissible evidence has been admitted and has Judge's charge to the jury incorporated in the learned is to exclude the inadmissible evidence from the record · remain" and consider whether ing thereafter is sufficient to maintain the conviction. the balance of evidence .f ' ·- A question was raised learned Attorney-General whether having in this connection by the regard to (1) [1953] S.C.R. 809. 1934 Ramk:ishan Mithanlal Shonna v. Th£ State of Bombay. Bhagwali]. S.C.R. SUPREME COURT REPORTS 935 in considering ) to the effect the Court was justified of the Privy the observations of their Lordships Council in Abdul Rahim v. King-Emperor (supra) of this Court in Mushtaq Husain v. State of Bombay (supra) balance of evidence for itself and substituting its own verdict for the verdict of the jury. He relied upon the observations of the Privy Council approving the deci sion in Mathews v. Emperor( 1 that the appellate Court was entitled to examine the evidence to see whether it justified the verdict pronounced or whether there had in fact been a failure of justice and also upon the observations of Mr. Justice Mahajan, 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 observa tions 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 coruideration 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 of the case had to be examined by the Court of Appeal and the Court had to decide for itself whether the con viction could be maintained. - ) as under: "The controversy which, As a matter of fact this very question was mootea. before the Privy Council in Abdul Rahim v. King Emperor( 2 reported question whether show, has long existed in the High Courts of India has centered round the appellate is sufficient ground court, in deciding whether there for interfering with the verdict of a jury, particularly judge, has where there has been a misdirection by the the right and duty to go into the merits of the case for evidence to itself and on .its own consideration of the justified or make up its mind whether the verdict was not. On the one hand, it has been said accused is entitled to have his guilt or innocence decid that the appellate ed by court has no its own judgment in to substitute place of a verdict by a jury ...... On the other hand, it the verdict of a jury and (!)A.LR. 1940 L>h. 87. (2) (1946) L.R. 73- I.A. 77. 93. 4-89 S. C. India/59 1954 Ramliishan Mithanlal Sharma v. TM State of Bomba.J. BhagwatiJ. 936 SUPREME COURT REPORTS [1955] i.s argued . that it is impossible for the court to perform the duty laid on it by· the Code without applying own mind to ·the soundness of the verdict." Section 537 of the Criminal Procedure Code was then referred to as also the two distinct lines of cases supporting these divergent points of view. The Privy Council then came to the conclusion that the ratio of cases beginning with Elahee Buksh(') and ending with Mathews v. Emperor( 2 ) was correct and held that the Court was entitled to examine the evidence 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 that there has been a failure the jury was erroneous or of justice in the that a guilty man has been acquitted or an innocent man has been convicted. seeking It is therefore commission of prosecution concerned in the necessary to consider whether the balance of evidence on the record after excluding the in regard to test identification parades evidence of accused 4 is sufficient to maintain his conviction. We have been taken through the evidence which was to prove that ·On behalf of the accused 4 was offence. Baburao Raje was no doubt characterised as an unreliable witness. But evidence there was evidence of Sarvarkhan which was accused establish sufficient to the scene of the 4 in the offence. His presence at ·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 testimony by learned counsel to discard his behalf. There is also sufficient evidence of his previous conduct, his association with the accused 1 and 2, his activities in Bombay after he arrived there from Delhi in the beginning of April, 1951, in regard to the renting -0£ rooms and garage from Tayabali Vaid and attempt the Vauxhall and the Chevrolet cars ing to acquire from Haribhau the partlClpation of and Ramdas respectively, (1) (1866) 5 W.R. Bo. (Cr.). (2) A.LR. 1940 Lah. 7. • .+: • -- r ~· -<lo 1954 Ramkishan Mithanlal Sharma v. The Stateo Bombay. Bhagwati]. - - S.C.R. SUPREME COURT REPORTS 937 (1) wnversations with Lalchand and in particular conversation outside the Sandhurst · Road Branch of tht Central Bank of India Ltd., and (2) the conversation at Apollo Bunder near the Sea Wall where he, accused 1 and Lalchand had 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 as deposed to by in the commission of the offence Sarvarkhan. His subsequent also in leaving Bombay by the Calcutta Mail bound for Allahabad on the night of the 20th April, 1951, and the expression last moment of relief at his finding accused 1 at the entering his compartment, is by the contrary to his own assertion and evidence of Gogte 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 prosecu tion against him and we are satisfied that even exclud ing the evidence of remaining on regard to him the balance of evidence record is enough to maintain his conviction. identification parades the test conduct proved The result therefore is that the appeals of all the accused fail and must stand dismissed. }AGANNADHADAS appeals J.-I should be dismissed. But make a few the questions observations debated before us in these cases with reference to sec tion 162 of the Criminal Procedure Code and section 27 of the Indian Evidence Act. I consider it necessary regards I agree that the objection under section 162 of the Criminal Procedure Code to the admissibility of evid ence relating to identification parades not apply to those held prior to the 1st August, 1951. The only therefore, objection to the admis identification parade, sibility of which requires consideration is that which 1952. relates to the fourth accused held in January, 1954 Ramkishan Mithanlal Sharma v. The State of Bombay. Jagannadhadas J. • -- .. 938 SUPREME COURT REPORTS [1955J themselves, is admissible. identification, as there is no scope behalf has been given by The evidence (1) the Police-Inspector, P. W. 80, Huzur Ahmed Mahomedali Khan, (2) and Panch witness, P.W. 113, Damodar Dayaram, and (3) eye-witnesses, P.W s. 13 and 15, Baburao Parshram Raje and Sarwar khan. 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 relating to as of the identifying witnesses an item of the fact of the prior corroborative evidence I agree that, on the evidence given in this case, such differentiation and that the entire evidence relat ing to the prior 4th accused is, in substance, evidence only of the prior statements of the identifying witnesses the police officer and is hence inadmissible. But I wish to guard myself against being understood as having assented the suggestion that in law a differentiation can be made in such cases between the tl1ree classes of evidence, viz., (1) of the police officer, (2) of the Panch witness, and (3) of the identifying witness himself, in so far as they speak to a prior identification at a parade held by police officer. inclined differentiation is unsound and inadmissible. The legal thereof is a matter of importance because, permissibility though the evidence of prior is only corroborative is of considerable value in cases of this kind. evidence, still such corroboration identification parades concerning identification I am revolvers and two Next as regards the objection to the admissibility of section 27 of the evidence raised with reference Indian Evidence Act, the main items of evidence are (1) the recovery on the 16th May, 1951, of a tin box containing three 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 Rs. 6,47,400 on -the production thereof by the wife of the first accused, at a village Kamalabai, 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 bullets which were found at the scene of offence were . any of the S.C.R. SUPREME <!.:OURT REPORTS 939 from the three revolvers above in fact fired recovered and this has been sufficiently indicated in the charge to It is the second item that is of the jury. importance. that some of the currency from the fact This arises notes had identification marks showing that they were · the object part of the bundle of notes which · formed behalf is that of the Police Inspector,. P.W. 80, which is as follows: The evidence offence. 1954 Ramkishan Mithanlal Sharma v. The State of Bombay. Jagannadhadas J. • -- ""- "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 accused). At the instance of the 1st accused witness Kamala brought from somewhere outside that house a steel box .......... When it· was opened I found therein six big bundles and five smaller bundles of hundred rupee G. C. Notes." . (wife of the - ,.. .> " out of that lost to the Bank by the offence. The portion is this evidence which is objected to is that this production was "at the instance of the first the direct con accused" seeking thereby to establish nection of the first accused with the find of this very large sum of money which bears indications that it was It. may be tl1at when a police officer. speaks to a recovery "on the information of" or "at the · instance of" an accused, section 27 of the Indian Evidence Act is. not in terms attracted. But what is objected to. on behalf of the appellants is that when a police officer speaks to a this. kind as having been "at the instance recovery of information of an accused" or "in to place on record not merely the fact of his having received some information but also the --implication thereof, viz., that the information is of a character which directly con It is urged tl1at the prosecution cannot be permitted to rely on such evidence without placing the admissible tion of the information on the record. I am inclined to think that there is considerable force in this objection. in such a situa tion may be such which, if scrutinised, shows only his the accused with the objects ' given by an accused" he is being allowed consequence recovered. • r ·The information given by an accused •954 --, Ramkishan Mithiznlal Sharma v; TMState of . Bombay. ]qgahnaahadas J 940 SUPREME COURT REPORTS [1955} · of that the view expressed I would reserve my opinion ·.in sucli remote connection and not direct . connectiori. a situation evidence of the ·bare :-fact information having been giveri may be inadmissible and such evid" I am not, therefore; ence may cause serious prejudice. prepared to say by Chief judgment('), placed Justice Chagla in the unreported before us is erroneous. In the present case; this behalf for fuller consideration. however, even if the evidence of the police officer that the recovery was at the instance of or in consequence of information furnished by the first is ruled the fact spoken to by him that the out, there is still trunk containing the · curre1icy notes was ·produced by Kamalabai, wife of the first accused, ·at her native place; This item of evidence is clearly admissible first accused · as indicating his connection. Therefore no It is also prejudice can be said to have. been caused. . section 27 of the to be noticed that no objection under Indian Evidence Act appears to have been taken at the trial nor is there any indication of it in the grounds of appeal to the High Court. accused against relating to the In· view of our opinion that th~ evidence of identifi accused was cation parades the rest of the inadmissible, we were takeri evidence as against this accused. I agree, on a considerc ation of that evidence, that this is not a case in which interference with the verdict even as against the fourth accused is called for. through fourth - Appeals dismissed. (1) Judg~ent of the .Bombay High Court in. Criminal Appeals Nos. 454 and 464_ of 1949 in the case cf Rex v. Gokulcliand Dwarkadas Morarka No. •. delivered on the 11th January, 1950.