M- Ct. Mulhiah v. THE STATE OF SAURASHTRA

"! was not arrested. Dewayat, Barat Lakhman- first ...... All the three of us were the same evening. We were not put under singh was arrested released arrest at all". insisted is difficult the appellant is Dewayat, P. W. 5, denied thing but Meraman, P.W. 11, the absence of In to say definitely that either he or any of the others were arrested and Maya, P. W. 15, said the Dewayat was arrested. the Sub Inspector appellant the others were is wrong. It is evident that at least suspected, especially as one of the points made against that he was seen sharpening an axe on the evening of the murder and Meraman, P.W. 11, says that not only was the appellant sharp ening an axe but so was Dewayat. If this was a matter of suspicion against the appellant it must equally have been so against Dewayat and accord improbable in the appellant's 'ingly statement about the Sub the matter it is Inspector was not only fair to accept what the appellant says. these other arrests; and as to clear up is nothing it till record ten days the fact that for reflection. The The appellant was sent to a Magistrate at 8 p.m. on the 21st for the recording of a confession but the 3rd of June. He Magistrate did not that he gave was examined as P.W. 21 and explained length of the appellant is unusual but no objection about· its fairness to the accused could reasonably have been raised had it not been for charge of a police guard which is under the direct control, orders and supervision very Sub investigation and Inspector who had conducted had earlier suspected and, according to the accused, three other persons; and two of them actually arrested are now to depose appellant about a matter on which the against lay great importance, namely the sharp prosecution that they might exag ening of an exe. gerate anxiety The danger their stories or give false evidence to avert further suspicion from called as prosecution witnesses themselves judicial lock-up 1955 Aher Raja Khima v. Tm State of Saurashtra Bose.]. corded 2S.C.R. SUPREME COURT REPORTS 1289 one that cannot be overlooked. But apart from judicial lock-up which that. This is the description of the Magistrate who re the confession (P. W. 21) gives us: Judicial "A police guard lock-up. The prisoner is on 24 hours duty at the Bhan so placed the compound wall that he can see the police the bars and can talk. These the police Sub-Inspector. A is working as warder. He stays there on duty within all the 24 hours through police officers are under by day. At night he is not there. Clerk Jailor police gate is the police lock-up. The police can go into police lock-up when they choose". does. not remain present there. The Inside the jail lock-up is within· the jail itself. Now the appellant repudiated his confession at the the Committing Court earliest opportunity. He told on 12-12-1952 in a written statement that- arrest by "After my threatened me the police I was sent to confession before Court directed. The police frightened me with I did not confess. As a result of which I have made a false confession as jail. At night time the police, having arrived at jail, to make beating through directed by the police and which I now deny". And in his examination under section 342, Criminal Procedure Cod.e, he said- fright, "I have made the confession because the police threatening to beat me in the jail. the Sessions Court. He repeated He said he was beaten at the time of his arrest and then after he had been sent to the jail he said- statements "I was daily threatened. They said offiehce of murder. We shall get you on remand. You will live as an importent man'. On the morning of the 3rd date, they took me to a big police officer after now I administering extraordinary come to know that he is the Magistrate". threats. Only 'confess Now it may be possible to take two views of this two important factnrs in in favour of is entitled statement but every criminal an accused person: one is that that weigh heavily the accused 1955 Aker Raja Khima v, The State of Saurashtra BOse J. 1290 ·sUPREME COURT REPORTS [1955] indicate reasonable doubt and their endeavour is understandable to find to the benefit of every other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of then, even though he cannot prove his his conduct, they should ordinarily be accepted unless assertions, the circumstances they are false. What the appellant said in this case is not impossible ; such things do happen that the the cul police, frustrated in three other persons, should make an all prit among to make sure of the fourth. We do out endeavour not say that that it might have happened is obvious, and when the police absent forestall themselves attempts at cross-examination, we impossible that a judge acting to hold that we have outlined the important principles above, can be said to have reached an unreasonable or an unfair conclusion when he deduces from circumstances is a reasonable probability therefore the confession was not voluntary. the appellant's story is that happened here. But judicially, and bearing the witness true and The only reason that the learn<:d High Court Judges give for displacing this conclusion is that judicial "in Saurashtra .... though lock-ups are placed under a common guard looked after by signed and they conclude- police in charge of Magistrates and are their clerks and peons, who are as jailors and warders respectively" the duties of lock-ups are "It therfore difficult to say police the day is only effective during could have effectively threatened him". is the fact that But what the learned Judges overlook this control the day and that at night neither the peon nor is there; and even during does not remain present in his written statement that "at night time the police, hav ing arrived at the jail, threatened me, etc". There is nothing this statement. Had the Sub-Inspector or some policeman been exa mined as a witness and had the appellant omitted to there". The appellant the "clerk-cum-jailor to displace the clerk record th_e f 1955 Aher Raja Khims v. The Staie of Saurashtra .. 2S.C.R. SUPREME COURT REPORTS 1291 raised at the Magistrate who recorded this, raised that might have the accused said was only that this defence the confession due to the outset, even the Committing Magistrate's Court, and was in throughout and the appellant did what to build up this part of his case by cross the only official witness who did appear, the confession; in establishing that there was ample threat. The fact in the Committal Court should the ab is a matter the appellant's the circumstances, we do not think the learned Sessions there are compel for holding that he was wrong; on the learned Sessions Judge's hesitation cross-examme him about that what an inference an afterthought. But here we involuntary nature of threats by t:1e police was; persisted he could examining namely and he succeeded opportunity this defence was raised have put the prosecution on its guard and sence of refutation favour. High Court has squarely met Judge's reasoning and shown ling reasons contrary, grounded on well established judicial principles. in the Sessions Court be used for coercion and legitimately In is clear the law the Court to our notions of an accused person unless that a confession cannot be Now used against that it was voluntary and at that stage satisfied It question whether it is true or false does not arise. fair play, justice and is abhorrent and is also dangerous, to allow a man to be convicted is made on the strength of a confession unless voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a conf~ssion or any threat or coercion would at once it if the fear was still operating on his mind invalidate and if it "would at the appear that by making it he would gain any advantage or avoid any to the proceed evil of a temporal nature ings against him": section 24 of the Indian Evidence Act. That the recording of a confession hedged around with so many safeguards and is time he makes for supposing the confession in reference reasonable is why 27-85 S. C. India/59 1955 Ahtr Raja Khima v. Th~ State of Saurashtra Rose J. .. 1292 SUPREME COURT REPORTS [1955] ten days. remanded he is asked this was done to them for a period of is put of the reach of the before the force of instead of isolating reason why magistrates ordinarily allow a period for reflection and why an accused person is investi jail custody and gating police to make his confes these precautions is destroyed sion. But the accused when, vestigating police, he is for all practical purposes sent It can be in good faith and we also accepted in sending the the recording of his confession on appellant up the 21st; custody". But remand remains that the remand hardly that opened up the very kind of was made and opportunities which rules and prudence the police are as should be guarded against; and, as human as others, a reasonable entertained they did not avail themselves of such a chance. they could not have anticipated "jail so-called the point. The fact the police acted properly they would be than human apprehension If the confession is excluded, sufficient evidence against our opinion, on which a conviction can be based. there is not, in the appellant that she had not gone It will now be necessary The murdered man to set out the facts. is one J etha. He married Sunder, P.W. 3, about three years before he was killed, but we gather to live with her husband; any way, she was living in the ap pellant's village Shiva with her people at the time of the pair opportu the occurrence and this afforded illicit amours, nities for a long continued course of to seize. it seems chances which in a village Kalawad which is three The husband lived miles distant. At the time of the murder arrangements to her husband and were being made for Sunder to go preparations for to such the ceremonial appropriate the course of progress. The prose occasions were this was resented by the appellant cution case who wanted the girl to the for himself; so he went husband's village Kalawa<l on the night of the 18th/ 19th and murdered. him with an axe which the prose- they were not slow 1955 Alier Rqja Khima v. Thi State of Saurashlra . Bose]. 2S.C.R. SUPREME COURT REPORTS 1293 cution say belongs produced. to him and which they say he later the motive is proved; and Both Courts hold that can be accepted. Next comes (P.W. 5) the evidence about tells us is nothing suspicious the sharpening of the 18th at Kana's house the axe on the evening of in the village Shiva. The axe was produced in Court it was blunt. and DewiJ.yat Now in a villager sharpening a blunt axe and, as we have point ed cmt, Meraman that Dewayat was (P. W. 11) says also sharpening an axe at the same time and place ; and Dewayat is one of the other three against whom suspicion was directed; also, that the axe was the fact this open way in the presence of a num sharpened ber of persons, to the village, two strangers two Satwara witnesses, P.Ws. 9 and 10), points (the to innocence rather than guilt. or unusual including that when But the prosecution do not rely on this alone. Their witnesses say the appellant was asked why he was sharpening his axe (Dewayat does not seem to have been put a similar question though he was doing to offer a that he wanted the same thing) he replied green cqconut to Lord Shanker. All the witnesses this has no special significance and are agreed to it at the that they attributed no sinister meaning It has acquired significance only time. the light of after events. to us the mother Even here, there seems believe he said. We say this because Sunder, P~W. to be some danger the appellant really said has got mixed up these witnesses say and, no doubt, honest that what with what 3, and her mother Vali, P.W. 2, tell us that the appel that evening and offered her lant came in lieu of a coconut. eight annas that this It seems is a customary offering given by relatives when a leaves her parents' home for her father-in daughter law's place. The appellant Sunder and s6 such an offering would be normal, and it was made the same evening, apparently shortly is a strong the offering of a probability incident, we that his remark about is distantly related the other ' _, 1955 ,jhn Raja Khima v. The State of Saurashtra Bose]. 1294 SUPREME COURT REPORTS [1955] to a vow: coconut had reference to this and was later thought to have reference the sort of mistake persons reconstructing a crime might easily make and then honestly believe; and we are this was what probably happened because the conduct attributed the appellant is so unlike that of a murderer deliberately planning a cold blood ed crime while, on the·other hand, it is wholly con sistent with reasonable doubt arises innocence. A the appellant is entitled to its benefit. the more prone Next comes that he saw ·the appellant is an important piece of evidence but the evidence of Samant, P.W. 16, who that night on the out skirts of Kalawad where the murder was committed. He was wearing a false beard and a mask. That of course the identity of a man so disguised danger of mistaking at night cannot be disregarded, especially the end of his cross witness qualified his statement at examination by saying: "The person was It is evident him". to us that his statement about identity is not based on his recognition of the appel that he saw a man who looked lant but on that tbc appellant was under suspicion, he man must have been is -the to decide. The only very question that this witness can be said to prove is that he saw a man that night wearing a false beard and mask who looked like the appellant. so, when he found inferred the appellant. But the appellant and the Court has the fact inadmissible the appellant the presence of panchas. But Then we come to the recoveries. The false beard and mask were found buried the grounds of Dewayat's house and is said to have re covered them in evidence because the discoveries police already knew where they were hidden. Their in formation was not derived from the appellant but from Dewayat this. Dewayat says police came the murder to him and that the appellant confessed there wearing a false beard told him that he had gone buried th ~se articles and a mask the other suspects). The way that he had this out was (one of to find 2S.C.R. SUPREME COURT REPORTS 1295 bada. Dewayat says- the Shami in the grounds of Dewayat's I spoke about to my field with Raja". "Next the police called me to go to Kalawad. At time Raja had been arrested ........ I was interro- the beard at that time. Then gated. the police came If Meraman (P. W. 11), read with the confused state ment of Kana (P. W. 4), is to be believed, Dewayat was also under arrest either at the time or on the day the Sub-Inspector was not examined, we before. As this up and so are bound to give to clear unable weight Judge where to the criticism of he says- the Sessions 1955 Ahtr Raja Khima .v. TheStauof SaUTashlra Bose]. confesses the danger the appellant, "However, Dewayat any average of suspicion Lastly, there is the recovery of ment was not recorded on the 19th of May 1952 but was recorded on 20-5-1952 only after he was ques tioned by the police". this evidence about re In our opinion, not only covery not admissible but that Samant (F'. W. 16) mistook Dewayat, who was also under strong suspicion or someone else who looked like the appellant, for has not been excluded. the axe. But was not hidden. It was kept behind an earthen just, as an axe might be nor in the appellant's house mally kept household. The only the axe had stains of human blood on it. But the stains and their position not disclosed. We have had occasion to ineffective comment before way in which some Chemical Analysers do their dury. This in which what might otherWise have been a valuable piece of evidence has to be dis the 21st regarded. The axe was not it could have been handled and was standing where by other members of In any case, villagers frequently have slight cuts or scratches or a prick from a thorn on their persons and a few drops of blood could easily be transferred to an article like an axe without anybody noticing or knowing. The important this, where everything on the very slovenly and the difficulty we are that the extent of the household. thing in a case is another case recovered 1955 Aluir Raja Khima v. Th•Slaltof Saurashtra Bose]. 1296 - SUPREME COURT REPORTS [1955] incised the cutting the injuries were is now seen to hang on this one fact, would be the blood and its position. The post-mortem extent of and that reveals If therefore bleeding . was profuse. there was blood it, that would all along edge and around there was have been a strong circumstance; but only a small smear of blood, say, on the back of the then that would axe and none on or near the edge, for complete exoneration. have been a circumstance this one point, we cannot When everything hangs on assume without proof that stains which might be compatible with either guilt or innocence must have been of what we might the guilty kind. • On a careful examination of case, we are not satisfied the acquittal. "strong and compelling reasons" the evidence in this the circumstances dis to set aside · The appeal is allowed. The conviction and sentence are set aside and the appellant is acquitted. VENKATARAMA AYYAR J.-I regret agree with the judgment just delivered. I am unable The appellant belonged the 19th May 1952, and for father of J etha, had come to the village of Katkora, intimacy with an unmarried woman and developed called Sunder the neighbouring village of Shiva. Jetha of Subsequently, Sunder was married to one Kalawad, a village about 3 miles distant from Shiva. It had been arranged to take Sunder to her husband's house on that purpose, Sida, 18th. The case of the prosecution was that the appel lant was determined to prevent Sunder from joining her husband, and with that object he went to Kalawad the night of the 18th, and killed Jetha with his axe, when he was asleep. The murder came to light to the next morning, and police. 20-5-1952. recovered from his On information the panchnama dis house at Katkora an axe, and then had stains of blood which was closes the Chemical Analyst to be subsequently found by to the police human. The appellant The appellant was arrested on the matter was to Shiva on the police reported showed 2S.C.R. SUPREME COURT REPORTS 1297 a false beard, which was buried under a tree in the that this was worn by village the appellant at the time of the murder. It is alleged of Shiva. On 21-5-1952 the police sent the appellant to the First-Class Magistrate (P.W. 21), with a letter stating a confession. The Magistrate, that he wanted however, decided to give him time "to cool down'', lock-up. He then went on and put him recorded return, the confession of the appellant, which is as follows : in judicial to another place, and on his to make 1955 Aher Raja Khima v. TheStateef Saura•hlra V enkalarama A•yar J. "I, having gone illicit connection with her. the idea of marrying Sunderbai. the neck. At that to his Wadi, have killed him. I have killed him for the the wife of Jetha. I have murdered I time I had of trousers. I had a turban I had worn artificial beard. After the the field of I have killed him with axe. sake of Sunderbai. Sunderbai I had Jetha Sida with gave him an axe-blow on put on a tunic and a ·pair on my head. murder, Dewanand Mope. The appellant Committing Magistrate, as made under police beat ings and threats. He was then sent up to the Sessions Court, Halar, to take his trial, which took place with the aid of four assessors. the artificial beard buried the axe to my house". this confession before I retracted sought on which committed the Magistrate, There was no direct evidence the murder. The the prosecution that the appellant circumstantial evidence to estab lish his guilt consisted of a confession made by him the axe and the recovery of of strong motive. There false beard, and the existence of evidence that on was, besides, a considerable body the 18th May the village of Shiva where Sunder was residing, with an axe in in his his hand and threats The assessors the opinion that the appellant were unanimously was guilty, but Judge disagreed with the confession was neither true them, and held there were strong nor voluntary, and that grounds the evidence was sufficient to convict him, and so acquitted him. the appellant was haunting the Sessions for suspecting him, tongue. though There was an appeal against judgment by the 1955 Aher Raja Khima v. Th1Stakof Saurashtra Venkatarama AyyarJ. 1298 SUPREME COURT REPORTS [1955] passed by the jurisdiction of prosecution were is whethet having this Court exercises there are grounds for to transportation for life. true and voluntary, thereof it, the High Court of Saurashtra. The learned the Sessions Judge, held that the evidence, the other facts proved to establish sufficient appellant. They accordingly set the Sessions under section 302 and It is against the present apptal by special leave State to Judges, differing from the confession was corroboration was ample that even apart from guilt of the order of acquittal Judge, convicted the appellant sentenced him judgment has been brought. regard to the The question its jurisdic principles on which tion under article 136, this appeal. Those principles are well-settled ference Prior to the aboli and may briefly be recapitulated. the Privy Council, the law tion of in general provide for · this judgments of the High Courts in cri appeals against the legislature minal matters. the policy of Indeed, the Code of as expressed in sections 404 and 430 of Criminal Procedure and departing in this respect from the Civil Procedure Code, has been that decisions of courts passed in criminal appeals to specified exceptions, not should be final and subject open to 11 further appeal on ments of the limita imposed by the Indian statures the Privy Council could not affect in the exercise of to entertain appeals against the Crown. That was a power the prerogative of which the Privy Council possessed in respect of orders the courts all over the Dominions. and th~ passed Judicial Committee exercised limits within which in In re that power were Abraham Mallory Dillett( 1 facts. So far the High Courts are concerned, thus stated by Lord Watson the jurisdiction of on further appeal did not adopted country ): "The rule has been repeatedly followed, been invariably review or interfere with ceedings, unless is shown (1) [1887] 12 A.C. 459, 467. laid down, and has that Her Majesty will not the course of criminal pro that, by a disregard of 2S.C.R. SUPREME COURT REPORTS 1299 of natural injustice has been done". legal process, or by some violation of the justice, or otherwise, substantial the forms of principles and grave in quite a number of These principles were followed judgments of Indian courts in crimi appeals against nal matters. Privy Council, Judicial Committee in dealing with an appeal in a criminal case, observed: In Dal Singh v. King-Emperor(1), the practice of stating 1955 Aher Raja Khima v. The State of Saurashtra V enkataramo, Ayyar]. for example, is established does not act, the course of to review the free takes place only where "The general principle in the exercise of Sovereign in Council justice the prerogative right in criminal cases, fashion of a fully consti tuted Court of criminal appeal. The exercise of the prerogative is shown that substantial character has injustice of a serious and the part of the Court occurred. A mere mistake on below, as the admission of improper evidence, will not suffice if to injustice it has not led of a grave character. Nor do the Judicial Committee advise themselves taken a different view of evidence ad would have mitted. Such questions are, as a general rule, treated as being for the Courts below". In Taba Singh v. Emperor(2), Lord Buckmaster ob the administration served of criminal Justice India, the Board would not interfere "unless there has been some violation of the principles of justice or some disregard of legal principles". In George Gfeller v. The King(3), which was an appeal from the Supreme Court of Nigeria, Sir George Rankin observed : interference merely because the final decision of responsibility rested with the courts For repeated ad .nauseam "Their Lordships have statement that they do not sit as a Court of Criminal Appeal. interfere with a criminal sentence irregular or so outrageous as the very basis of justice: per in Mohindar Singh v. Emperor('). Cf. Lord Dunedin Muhammad Nawaz v. Emperor(")". there· must be something so to shock (I) [1917] L.R. 44 I.A. 137, 140. (3) A.I.R. 1943 P.C. 2' l. (2) [1924] I.LR. 48 Born. 515. (4) [1932] L.R. 59 I.A. 233, 235. (5) [1941] L.R. 68 I.A. 126, 129. 1955 Aher Raja Khima v. The State of Saurashtra Venkatarama ;lyyar J. 1300 SUPREME COURT REPORTS [1955] resulting these principles, the Privy Council jury and criminal cases, unless law was well-settled entertain appeals refused m to appeal on the ground of in Mohindar Singh v. ) on the ground that a wrong yiew had been On M acre a, Ex parte( 1 ) misdirection to the Emperor( 2 taken of the law. that the Privy Thus, against iudg Council would there was an error of procedure or disregard of legal principles amounting to a denial of fair in grave m trial and justice. Under the Constitution, Supreme Court which has Privy Council this. Its jurisdiction as in respect of criminal appeals may be Privy Council classed under two categories, cases where a right of appeal is expressly granted by the Constitution or by the statutes, as for example, articles 132( 1) and 134 the Constitution or section 411-A(4) of the (1) of Code of Criminal Procedure, the scope of the appeal would depend upon the terms of the en-· the right; and cases where it actments which confer its powers under article B6, is called upon to exercise the prerogative jurisdiction exercised by the Privy Council with the Judicial Committee erence to which might usefully be referred the ~rea of interfereni:e. the position of that of corresponds substantially to for indicating the practice of in which the place The question was considered by this Court in Pri tam Singh v. The State('), where the law was thus laid down: this Court it seems clear the preceding article, "On a careful examination of article 136 along that the to be exercised sparingly and in cases only .... The Privy Council have to time certain princi leave in criminal cases, which In Kapildeo v. It is sufficient for our purpose to say them too wide discretionary power with which invested under exceptional ples for granting special were rev; ewed by the Federal Court The King('). (1) [1893] L.R. 20 I.A. 90. (3) [1950] s.c.R. 453, 458. (2) [1932] L.R. 59 I.A. 233, 235. (4) A.l.R. 1950 F.C. 80. though we are not bound to follow lay down from ..... ,. 1955 Aher Raja Khima v. The State of Saurashtra Venkatarama Ayyar ]. 2S.C.R. SUPREME COURT REPORTS 1301 the case invoking leave, unless discretion of in question presents furnishing and special sometimes weighed with that substantial in granting special leave. Generally the reasons, constitutional and admini rigidly the Privy str::.tive, which Council, need not weigh with us, yet some of those principles are useful as in many cases a sound basis speaking, Court this Court will not grant special it is circumstances that exceptional exist, injustice has been done. and features of sufficient gravity to warrant a review of the deci sion appealed against". The preceding article right of appeal unqualified, on questions extended 134(1) would become superfluous. the intention of appeal on facts. under articles 134 ( 1) it under article 136, and to exclude State(') not function as a further court of appeal on facts criminal cases. referred to in the opening pas is clearly article 134. Article 134(1) confers a in certain cases, in terms of fact and of law, and to be then article It is obvious that in providing for an (a) and (b) was in Pritam Singh v. The the Privy Council this Court would the scppe of an appeal under article 136 is the conclusion that like to this Court to questions of fact, the Constitution strongly likewise reached it was to decide the judgment of is whether there are interfering with Judges had Hav; ng regard to the principles enunciated in this sufficient the present appeal. The point which in the appeal was the appellant who had murdered Jetha. turning on appreci the entire evidence ex closely to the conclusion the appeliant has been established reasonable doubt. Does that decision call in special appeal? No, unle~s this to function as a court of appeal on facts. the question decisic,n, grou;1ds High Court the learned whether ThJ.[ is a pure question of fact ation of evidence. The High Court has gone the mJ. tter haustive! y, reasone<l as it is elaborate, has come that the guilt of beyond all for our interference CoLirt in a judgment which fully, examined is as IJ) [!950] S.C.R. 453, 458. 1955 Aher Raja Khima v. The State of Saurashtra Venkatarama A';JflT ]. 1302 SUPREME COURT REPORTS (1955] to the subject that it would be open then, it is argued that the appeal before the High But that such an appeal Court was one against acquittal, there should be limitation compelling reasons for reversing an order oi acquittal, to this Court in special limitation nad been appeal du! y observed. On this contention, two questions arise for determination: (1) what are the powers of a court which hears an appeal against an order of acquittal ? And (2) what are the grounds on which the decision of that court can be reviewed by this Court under article 136? to consider whether that distorted such unreasonable in appeal except "where the view was that appeals The right to appeal against an order of acquittal is section 417 of the Code of conferred on the State by in terms unqualified. Criminal Procedure, taken at one time in some Nevertheless, against acquittals were of the decisions in a less favoured position than appeals against con victions, and that an .order of acquittal should not be interfered with through incompetence, stupidity or perversity of certain conclusions the evidence so as to produce have been drawn from justice", or where "the lower a positive miscarriage of court has so obstinately blundered or gone wrong as to produce a result mischievous at once to the admi the public". nistration of justice and the interests of Vide Empress v. Gayadin(' ), Queen-Empress v. Robinson('), Deputy Legal Remembrancer v. Amttlya Dwan(') and King-Emperor v. U. San Win('). In the question was Sheo Swarup v. King-Emperor('), raised .for determination by the Privy Council whether there was any legal basis for the limitation which of the State above decisions had placed on the right to appeal under section 417. Answering negative, Lord Russell observed there was "no the Code of any limitation or restriction indication in the exercise of its powers as an on the High Court that no distinction was drawn tribunal", appellate (I) [1881] 1.L.R. 4 All. 148. 13) [!914] 18 C.W.N. 666. (2) [1894] l.L.R. 16 All. 2·2. (4J [<932] l.L.R. JO Rang. 312. (5) 1934 L.R. 61I.A.398, 403, 404. 1955 Ahe7 Raja Khim v The Stat< of Saurashtra Venkatarama Ayyar J. 2S.C.R. SUPREME COURT REPORTS 1303 from a conviction'', and "between an appeal an appeal tion should be placed upon found expressly stated remark at page 404 that, from an order of acquittal and that "no limita that power unless it be in the Code". He went on (2) (4) ( 3) They merely the witnesses, the witnesses". conviction and and will always against acquittals right of the accused "the High Court should proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility the presumption of innocence in the accused, a presumption certainly not favour of weakened by the fact that he has been acquitted at his trial, to the benefit of any doubt, and the slowness of an appellate Court in disturbing a finding of act arrived at by a Judge who had the advantage of seeing These observations, however, do not mean that is different from scop:: of appeals embody that of other appeals. to all appeals, civil and criminal, principles applicable acquittal. to appeals alike against if A files a suit on a promissory note against Thus, B and the latter denies execution, is on If the trial the plaintiff the evidence adduced by him Judge does not accept and dismisses his to prove on the evidence adduced burden still on him is. genuine, and in discharg that the promissory note the judgment appealed against is clearly wrong. In Naba Kishore Manda/ v. Vpendra Kishore Manda/(1) Lord Buck master stated: "The only observation their Lord to call attention once more to the burden of showing that lies upon the is nicely balanced to the equal possibility of the the other being ships desire the fact - that the judgment appealed from appellant. calculations which' judgment on either right, he has not succeeded". Adapting these observations the State appeals against an order of acquittal, the one side or suit and he appeals, he has that burden he has to show to establish its genuineness. trial, when is wrong in appeals If all he can to criminal the burden to make further (I) [1921] 42 M.L.J. 253, 257 (P.C.). 1955 A.htr Raja Khima v. The State of Saurashtra Venkatarama Ayyar]. 1304 SUPREME COURT REPORTS [1955] the evidence it, it has to satisfy that on acquittal reinforced observation innocence becomes has to establish on the accused is the court guilty, and to establish that the judgment of the trial court is erroneous. The the pre oft-repeated is merely sumption of law. Like this principle stated to be attached by an appellate court wise, the trial court based upon apprecia to a finding of tion of oral evidence is is given trial. Dealing with in a civil litigation or a criminal court hearing a civil the position appeal, the Privy Council observed in Bombay Cotton Ma11ufacturi11g Co. v. Motilal Shiv/al(') : in terms of criminal the same whether an appellate the weight is within that on appeaJ "It is doubtless generally speaking, cases where the whole the jurisdiction of interfere with the findings of fact of the the witnesses and their demeanour, simple and to one or other these observa- restrict India in the the Appellate Courts m case, including the f;icts, the Appeal ·Court. But undesirable to Trial Judge who sees and hears noting opportunity the issue especially depends on the credit which attached of conflicting witnesses ...... .In making their Lordships have no desire discretion of consideration of evidence". that Lord Russell had in It is clearly mind when he made the observations at page 404 in Sheo Swarup v. King-Emperor(') quoted above, and the observation next following: that will be clear from this, however, its conduct of the appeal should and rules and principles well administration of 'To state High Court in will act justice". The scope of Emperor(') with special discussed above was Council in Nur Mohammad v. Emperor(') : "Their Lordships were· referred, the decision of this Board in Sheo Swarup v. King the observations the Privy in accordance with recognized m explained by these principles the decision reference is only to say rightly enough, in Sheo 12) [i934] L.R. 61 I.A. 398. the case (I) [1915] L.R. 4Z I.A. 110.,·l J3. (3) A.I.R. 1945 P.C. 151. 1955 Aher Raja Khima \'. The State of Sa.urashtrtJ Venkatarama Ayyar]. 2S.C.R. SUPREME COURT REPORTS 1305 really that upon the conclusion there; to review at Their Lordships do not it all again, but would of acquittal should be reversed". authorities establish the judgment delivered bv Lord it n~cessary to observe that is only one principle, in the strict use of the High large all the evidence the order of acquittal was founded, and Sruamp v. Ki11g-Emperor(1), and in particular passage at p. 404 in Russell. to read the word, Court has fuli power upon which to reach These controversy that an appeal against acquittal under section 417 stands as :rn appelbte court, the powers of footing as appeals against conviction. If that is the true scope of an appeal under section the doctrine of "compelling fit it among the that section? The words legislative expression. in section 417. As far as I have to discover, it was first used in Surajpal Singh 417, where reasons" come powers "conwelling They are not been able a11d others v. The State("), wherein it was observed : in? And how do we reasons" are not a of a court under that evidence then does the same regards bevond further the advantage full power to review "It is well established their evidence can be reversed only the Criminal Procedure Code, in an appeal under the High the evidence upon founded, but it is innocence reinforced by his acquittal trial court, and the findings of the trial court of seeing the witnesses and for very section 417 of Court has the order of acquittal was equally well-settled that the presumption of the accused which had hearing substantial and compelling reasons". Do the words "compelling passage hearing an appeal under section 417 not applicable a court hearing appeals against conviction? then it is merely the old doctrine acquittal m a new garb, • and the reasons for rejecting sound are as powerful as the above import a limitation on the powers of a court If they do, that appeals against favoured position, dressed it as un those which found favour in Shea Swarup v. King-Em- the Privy Council reasons" in a (1) [1934] L.R. 61 I.A. 398. (2) [195~] S.C.R. !93, 201. 1955 Aher Raja Kkima v. The State of Saurashtra V enkatarama AyyarJ. , 1306 SUPREME COURT REPORTS (1955] the trial court. the expression has that these word~ were judgments, especially of laid down again~t . acquittals any more But peror(') and Nur .Mohammad v. Emperor('). But it intended to express, is probable the similar words of Lord Russell in Sheo as were Swarup v. King-Emperor( 1 ), the court hearing an appeal under section 417 should observe the rules which all appellate courts should, before coming to a If conclusion different that of the expression "compelling so understood, reasons" to no comment. Neither would it be would be open in its application of any special sigruficance appeals against conv1ct1on. quoted the courts below, as that in appeals against acquittal, the standard of proof required of the appel lant was far higher law casts on than what the words "com appellants in other appeals, and as indefinite to a degree, pelling reasons" are vague and the result has not seldom been that even when Judges hearing appeals under section 417 were convinced of the guilt of they refrained from setting asid~ the order of acquittal owing to the dark and expression. unknown prohibition contained That is formed in the appeals which have come before me in this Court. There taking a phrase, attrac in its context, out of it, and erecting tive and telling it into a judicial formula as if it laid down a principle universal this danger is all the greater when import, to appreciation of evidence. relates interests of the public that crimes should be punished, that section 417 confers on and it is with a the State to appeal against acquittal. To "com right through such expressions as fetter pelling reasons" would not merely be to legislate but to defeat the plain intention of an accused should have only those in an appeal against conviction or a respo\ld$ht¥ in a civil appeal has, and to enjoy ·no' $pecial protection. in · lln. appeal against acquittal rights which the state in is application. And this object the impression which is always a danger is of undefined the accused, I have the phrase that he is legislature It is in (I) [1934] L.R. 61 I.A. 398. (2) A. I. R. 1945 I>. C. 151. 2S.C.R. SUPREME COURT REPORTS 1307 regarding a judgment the decision of an appeal under section in a position of vantage which The fundamental objection the expres sion "compelling reasons" as a rigid formula govern 417 is however rendered, the law did and throws around the accused who not accord to it, trial court a protec gets an order of acquittal intend to give him. In tion which law did in which great mis my judgment, the public chief must must suffer. this is a situation of acquittal, interests of result, and 1955 -+- Aker Raja Khima y. The State of Sauroshtra Venkataratna Ayyar J. ) is, appeal to guide If the expression under section 417, and it in arriving at a decision, this Court can interfere with "compelling reasons" does not impose a restriction on the powers of a court hearing if its true scope the question that decision whether the ground that it is erroneous presents no diffi then be one on a question culty. The decision would the appreciation of evidence, fact depending upon this court cannot, on the principles. enunciated in Pritam Singh v. The State( 1 interfere with it. This in fact, concluded by the decisions in Sheo position Swarup v. King-Emperor( 2 ) and Nur Mohammad v. Swarup v. King-Emperor(2), Em;>eror(3). In Shea the Sessions Judge had characterised the prosecution as liars, and disbelieving their evidence had witnesses the accused. On appeal, the High Court acquitted the evidence, and differing from reviewed to be attached to it, convicted court as to the weight this judg the accused. Declining ment, though there was no express mention in the judgment of the the particulars High Court in deciding which an appellate court should consider an appeal, there was "no reason High Court had failed to take all proper matters their .conclusions of fact". consideration in arriving at In Nur Mohammad v. Emperor(3), the judgment of the High Court did not disclose that it had considered the matters mentioned by Lord Russell at page 404 the Privy Council observed it had considered all to interfere with that even to think (I) [1950] S. C.R. 453. (2) [1934] L.R. 61 I.A. 398. (3) A.I.R. 1945 P.C. 151. - 28-85 S. C. India/59. 1955 AMT Raja Khima v. Th!Stattof f:Jaurashlra VenkalaTama A.J1ar J, 1 is no necessity to presume in this ___ ~ 1308 -_:SUPREME COURT REPORTS [1955] "In the present case in Sheo Swarup v •. King-Emperor('). Nevertheless, the Privy Council dismissed the appeal observing: the High Court judgment to deal in detail that they have been at pains the Sessions Judge for dis- ( ' them, showing on the face of the findings result . with the reasons given by believing the group of witnesses, in detail with judgment .. that there case that they have not done their duty .... " These decisions are authorities ·for the. Patwari ·and the three alleged eye-witnesses. . They have dealt _ • the position in an appeal under section 417 tlie court that when considers . the evidence and comes to its own conclu recorded .by it are not, even when sion, the order of acquittal; · Different interference considerations would - have arisen if the law had pm· those orders vided a further appeal on facts against the appreciation of the evi of reversal, in which -case . a .matter open dence by the superior court. That, as already stated, would be ·the position in an appeal under arti cles 132(1) and 134(1) (a) and (b), but where, as in is provided, . the de ihe present, no ·appeal on facts cision of the ·.High Court is not open to review that there this court urider . article 136 on were no: compelling reasons for the learned Juoges reverse an· order of acquittal. the- ·appellate court would be in . special appeal. in a reversal of the ground review · the dismissal of (1) through to entail the merits is sufficient the evidence, that even . on the High ,Court This 'I appeal. But, having gone am of. opinion the decision is correct. The evidence against ihe . appellant is wholly circumstantial, and consists mainly of (2) the conduct .: of . the . appellant on ·the day when the the .recovery . of a blood (3) murder was committed, stained axe : and. a false beard at appellant, fore_- the Magistrate, _· P. W. 21, on 3-6-1952. . the above ·cution. ·that the appellant was the. instance of the / (4) ·.a confession. made by·him br..-;_ is the ·case of :therprosc- · living . on: terms of inti- \ the existence of a strong motive, items seriatim •' · Taking"- .... ._. , °\. (1) [1934] L.R. 61 I.A: 398. ~- 1955 Aher Raja Khima v. The State of Saurashtra Venkatarama Ayyar]. 2S.C.R. SUPREME COURT REPORTS 1309 macy with Sunder, and as she was to be taken on the 19th May 1952 to Kalawad to join her husband, he wanted to do away with him .. hTe appelant admit illicit connection with Sunder for that he had the Sessions Judge also found, bas some years, and the prosecution evidence, ing himself on the night of appellant was very much agitated on 18th. A number of witnesses saw him on 18-5-1952 at Shiva sharpening his that he axe, and to Mahadevji, learned Judges "an expression" "which sacrifice of a head". The common parlance means to Shiva on the 18th, appellant denied the Sessions but his statement was disbelieved impressed by the quality and num Judge who was and both the courts ber of the prosecution witnesses, have concurred point. that when questioned, he stated to offer a green coconut their evidence on that he went in accepting deposed '- As for the recovery of it, but he stated the axe, the appellant ad in his examination under it when he Judge was not that there was no blood on the police. The Sessions it to to accept this statement and observed: mitted section 342 showed prepared itself there were marks of human blood _ that the Panch is no doubt the value of "Accused admits this is his axe. In light of that there were It is also men the same, he discounted in the Panchnama, Ex. 21 chemical analysis, stains of human blood on the axe. tioned had suspected on this axe". this evi But all dence, because according in view of certain circumstances "the presence of human blood on the axe is by no means conclusive", and that "at best it r;::ises Those circums a suspicion against the panch who witnessed tances are to Kalawad, and the criticism that a local panch ought to have been the same. The learned Judges of the High Court did not think JT':Kh of this criticistr. as the recovery at Katkora had to be amde in purst'' 1ce 0£ given by the appellant at Kaia.vad, recovery at Katkora belonged to witness the accused". the statment to him, Firstly, t):u-ee: 1955 Aber Raja Khima v. The State of Savrashtra V tnkatarama Ayyar J. 1310 SUPREME COURT REPORTS [1955] thought reasonably it was sent It is difficult the police might have only on 27-5-1952, and the axe, his criticism on though Secondly, the same panch should be present at both the places. the evidence of As the Sessions Judge has accepted there were blood stains at the time of the panch the recovery this point lacks substance. recovery was to the medical officer made on 21-5-1952, is sus for report this criticism. When picious. that there was blood on the axe when it was recovered, this criticism has no meaning unless police the blood which was on the axe at the time of its recovery and to sub therefor. There is nothing in the stitute human blood evidence so grotesque, and if the police as observed they would not have wanted taken so much time over it. support a suggestion required some is intended the learned Judges, substitute blood, the conclusion is reached the delay to suggest to follow to wash Thirdly, the blood in despatching the medical officer sent the compounder to the Chemical the parcel containing to the railway station, not through in the hospital but that, according to the the Chemical Analyst it is difficult to see what the point of the is a suspicious circumstance. As Analyst, the blood scrapings his own peon or through Sessions Judge, parcel was received at Bombay, criticism is. The Sessfons Judge himself observes: the local police, and intact by is no doubt is wrong, and "I do not believe the doctor that the police have intercepted they deliberately sent an axe with that the JS this parcel and human blood. However, procedure adopted by capable of mischief". It has not been explained and divine what case. And who unless he did not believe police, but that nevertheless lying his comment. strike" would appropriately described The is not possible to in this could have been the mischief-maker it be the police? The Sessions Judge stated that suggestion made against the the assumption under to wound, afraid the situation. the reasoning of that mischief could have been learned Judges disagreed with "Anxious 1955· Ahtr Raja Khima v. Tiu Stale of SDUlashtra 2S.C.R. SUPREME COURT REPORTS 1311 the recovery of the axe and as the Sessions Judge, and held admitted human blood on it at cogent evidence pointing to find any answer Pausing here, to this reasoning. it will be seen that as the appellant had there was it was clear and I am unable to his guilt. that time, the court is difficult the judgment, it is no doubt subordinate Magistrates. When the evidence-an attitude which, in discussing the the blood-stained axe, as question of the recovery of the learned Sessions indeed throughout Judge has taken up an attitude of distrust towards the police for which to find any justifi regret I cation to say, is becoming a growing feature of judgments the trial, it that a police officer has, in the appears discharge of his duty, abused his position and acted oppressively, its clear duty to express disapproval of his conduct. But it is equally its stern its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, is, as in this case, no reasonable basis for in the circumstances. The pre it in the evidence or sumption acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect therefor. Such an attitude him without good grounds the magistracy nor good to could do neither credit run down the prestige of It can only the public. police administration. that a person time of the murder. The appellant It is the case of the prosecution that the appellant unearthed a false beard, which he had buried under in Shiva, and that he had worn it neath a shami tree did not deny the recovery, but stated it was not he that it but the jamadar. Both the courts had uncovered the version of the prosecution as below have accepted true, but while it was the Sessions Judge held the appellant, not sufficient to implicate learned P.W. 16 deposed that he saw Judges held otherwise. the 18th May on the the appellant at midnight on outskirts of Kalawacl wearing a false beard, and this evidence ·is: the Sessions Judge on comme11t of "I do not see how this evidence will prove 1955 ~RajaKhif'lllJ .... Tl1' Stale of Saurashtra V mkalorama Ayyar]. - , 1312 SUPREME COURT REPORTS [1955] the axe and the facts relating prosecution case beyond it will suffice to raise suspicion against if the beard was discovered by But then surely is a valuable evidence against him. Then we come reasonable doubt. At best the accused". the appellant, the chain of the confession made by the appel to P. W. 21. The Magistrate has deposed he had satisfied himself it was voluntary, before he recorded it. The Sessions Judge did not discredit that in view of but was of opinion testimony, the confession was not volun certain circumstances tary. Now, to this matter are these: · The appellant was, as already stated, arrestetd on the the false 20th May and discoveries of beard were made through him, and on the 21st was sent that he the Magistrate with a letter to make a confession. The Magistrate has desired that he did not record the confession given evidence at once, as he wanted the appellant "to cool down'', and accordingly gave him to reflect, and to judicial lock-up. There is nothing committed it is a commendable in this, and improper the confession was made precaution for ensuring voluntary. the appellant to 3-6-1952 this is a circum continued in the possibility stance which normally should negative there having been a threat or inducement. But the Sessions Judge declined to attach any weight to it, because both judicial the same compound, sepa lock-up were situated feet, and were guarded by rated by a distance of 20 the same police officers, and though the judicial lock they kept up had its own warder and clerk jailor, only during daytime, and · even the police could have had no access though inside the lock-up, they had threaten the accused". The Sessions Judge accord and bully the confession was not voluntary. On ingly held to a different con the learned appeal, clusion. possibility They considered the bars was to threats having been uttered remote and unsubstantial the basis for any the police lock-up and "every opportunity through From 21-5-1952 indeed, Judges came lock-up, and ten days therefore to form judicial 1~55 Airer Raja Khima v. Thi 5'.taJIOf Saurashtra V nikatarama AJJar J. 2 S.C.R. SUPREME COURT REPORTS 1313 conclusion, and salient pojnts the confession was voluntary. These are that emerge out of the evidence. that all the circumstances indicated The position may be thus summed up: (1) No special weight attaches the evidence of witnesses whom he had to the findings of the Sessions Judge on the ground that they are based the ad vantage of seeing in the box, and believed. The oral evidence was all on the side of the prosecution, and .that was Sessions substantially accepted by the probabilities judgment Judge. His the learned Judges were at the case, and of as competent them, to judge, as he. is based on (2) The finding of the Sessions Judge in so far as axe was recovery of bloodstained it did not follow on his reason to the it related clearly erroneous, as ing. (3) As regards the confession, the Sessions Judge rests on nothing largely coloured by a general distrust of not based on evidence or justified by stances. (4) The learned Judges were of the conclusion of tangible, and the police, the circum the opinion that the other evidence in guilt of the even excluding the case was sufficient appellant. the confession, to establish (5) All four assessors were of the opinion the appellant was guilty. to the Now, returning the basis of the preceding discussion, the High Court has to do in exercise of two questions which have formed (1) what is it that to the find powers under section 417, having regard reached by it and set out above, and how does the doctrine of "compelling reasons" it? (2) What are the grounqs on which we can interfere its decision? A court hearing an appeal under section 417 might be confronted with three possibili ties: (i) It might come to the same conclusion as the the questions in which case, trial court on It might it should dismiss of course, that the evidence was not clear and conclu consider in which case its duty . si;e one way or in issue, the appeal; bear upon the other, (ii) 1955 Aher Ra.fa Khima v. The State of SauraJhtra Venkatarama 4,_,.,. J. ' • ; 1314 SUPREME COURT REPORTS [1955] to all courts of appeal. as an appellate court would be not to interfere with the judgment appealed agaimt; and (iii) it might come to a conclusion on an appreciation of the evidence opposite to that reached by the court of first instance, in which case it would clearly be its duty in exercise of its powers under section 417 to set aside the order of acquittal. Wherein does the theory of "compelling reasons" come in the scheme? There is no need for it from it, the second category, because even apart the same result must, as already stated, follow on principles applicable Then, If the High the third category of cases. there remains Court comes to the conclusion on an appreciation of the evidence it, the order of acquittal on the nevertheless, basis of that would render .conferred by the right illusory. Thm, reasons" would appear doctrine of "compelling to have use only as a guide determining questions of independent value as bearing on its powers under section 417. If that is the true position, the princi ples laid down in Sheo Swarup v. King-Emperor(') and Nier Mohammad v. Emperor(') and in Pritam Singh v. The State(•) that this Court cannot interfere with orde.rs passed under section 417 merely on the ground justified, having regard to the doctrine of "compelling reasons". this theory? Surely not, as to the appellate court fact were not fact. It has no the findings of is guilty, has it follows on the appellant to confirm sectio•1 417 In my opinion, this appeal ought to be dismissed. ORDER. Bv THE CouRT.-ln accordance with of the majority tion and sentence are set aside and acquitted. this Appeal the Judgment is allowed. The convic the Appellant II) [1934] L·R. 61I.A.398. (2) A.LR· 1945P.C•151. (3) [1950] S.C.R. 453.