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PETITIONER: KALI RAM

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT24/09/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A. SARKARIA, RANJIT SINGH

CITATION:  1973 AIR 2773            1974 SCR  (1) 722  1973 SCC  (2) 808  CITATOR INFO :  R          1975 SC 241  (13)  F          1984 SC 911  (5)  R          1984 SC1622  (162)

ACT: Criminal trial-Burden of proof-Benefit of  doubt-Principles, governing. Code of Criminal Procedure, 1898 (5 of 1898)s. 162-Scope of.

HEADNOTE: One  of the cardinal principles which has always to be  kept in  view  in  our system of administration  of  justice  for criminal  cases is that a person arraigned as an accused  is presumed to be innocent unless that presumption is  rebutted by the prosecution by production of evidence as may show him to  be guilty of the offence with which he is charged.   The burden  of  proving  the guilt of the accused  is  upon  the prosecution  and unless it relieves itself of  that  burden, the  courts  cannot  record a finding of the  guilt  of  the accused.   There  are  certain  cases  in  which   statutory presumptions  arise regarding the guilt of the  accused  but the  burden even in those cases is upon the, prosecution  to prove the existence of facts which have to be present before the presumption can be drawn.  Once those facts are shown by the  prosecution to exist the court can raise the  statutory presumption  and  it  would, in such an event,  be  for  the accused  to  rebut the presumption.  The onus even  in  such cases  upon the accused is not as heavy as is normally  upon the prosecution to prove the guilt of the accused.  If some material  is  brought  on the  record  consistent  with  the innocence of the accused which may reasonably be true,  even though  it is not positively proved to be true, the  accused would be entitled to acquittal. [733 H; 734 C] Another  golden  thread which runs through the  web  of  the administration  of justice in criminal cases is that if  two views are possible on the evidence adduced in the case,  one pointing  to the guilt of the accused and the other  to  his innocence, the view which is favorable to the accused should be adopted.  This principle has a special relevance in cases where  the guilt of the accused is sought to be  established by  circumstantial  evidence.  Rule ha,-.  accordingly  been

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laid  down that unless the evidence adduced in the  case  is consistent  only  with, the hypothesis of the guilt  of  the accused and is inconsistent with that of his innocence,  the court  should refrain from recording a finding of  guilt  of the  accused.  It is also an accepted rule that in case  the court entertains reasonable doubt regarding the guilt of the accused,  the  accused must have the benefit of  doubt.   Of course, the doubt regarding.the guilt of the accused  should be  reasonable,  it  is not the doubt of  a  mind  which  is either-so  vacillating  that it is incapable of  reaching  a firm  conclusion or so timid that it is hesitant and  afraid to  take  things to their natural  consequences.   The  rule regarding  the  benefit  of  doubt  also  does  not  warrant acquittal of the accused by resort to surmises,  conjectures or  fanciful considerations.  As mentioned by this Court  in the case or Slate of Punjab v. Jagir Singh, (Crl.  A. No.  7 of  1972 d/ August 6, 1973) a criminal trial is not liked  a fairy  tale  wherein one is free to give flight to  one’  In arriving   at  the  conclusion  about  the  guilt   of   the imagination and phantasy. accused charged with the  evidence by  the  yardstick  of witnesses.   Every  case  own  facts. Although  the.  to the accused the courts  commission  of  a crime,  the  court has to judge the  of  probabilities,  its intrinsic  worth and the animu, in the final analysis  would have to depend upon it benefit of every reasonable doubt sh- uld  be  given should not at the same time  reject  evidence which is ex facie trustworthy or grounds which are  fanciful or in the nature of conjec [734-G-H; 735A-D] It  needs  all  the  sameto  be  re-emphasised  that  if   a reasonable  doubt arise regarding the guilt  of  theaccused, the  benefit  of that cannot be withheld from  the  accused. The courts would not be Justified in withholding the benefit be cause the acquittal might have an impact upon the law and order  situation  or create adverse reaction in  society  or amongst those members of the society who believe the accused to be guilty.  The guilt of the accused has to be 723 adjudged  not  by  the fact that a  vast  number  of  people believe,  him  to be guilty but whether his guilt  has  been established by the evidence brought on record.  Indeed,  the courts  have  hardly  any other  yardstick  or  material  to adjudge the guilt of the person arranged as accused.  It  is no  doubt true that wrongful acquittals are undesirable  and shake  the confidence of the people in the judicial  system, much  worse,  however,  is the  wrongful  conviction  of  an innocent  person.  The consequence of the conviction  of  an innocent person are far more serious and its  reverberations cannot but be felt in a civilised society. [735D-F; H] Shivaji Sahabrao Bobade & anr. v. State of Maharashtra,  Cr. A. No. 26 of 1970 dated 27-8-73, referred to. The  appellant was convicted under s. 302 Indian Penal  Code and  sentenced  to  death.  The High  Court  maintained  the conviction  and  sentence.  The High Court relied  on  three pieces of evidence viz.; (i) evidence of a witness which was recorded by the police over two months after the occurrence; (ii)  the  letter  written  by the  accused  to  the  Deputy Commissioner  making a confession and (iii)  the  confession made  to  S.R.  who incorporated this in  a  letter  to  the Station House Officer. Allowing the appeal to this Court, HELD  :  that the judgment of the trial court and  the  High Court had to be .set aside and the accused acquitted. [736F] (  1)  If  a  witness professed  to  know  about  a  gravely incriminating  circumstance against a person accused of  the offence  of murder and the witness kept silent for over  two

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months regarding the said incriminating circumstance against the  accused,  his statement relating to  the  incriminating circumstances,  in  the absence of any  cogent  reason,  was bound to lose most of its value. [73OB-C]  (2) The fact that no action was taken on the letter till it was taken into possession by the police, the incongruity  of the  portion  of the letter relating to confession  and  the circumstances in which the accused is stated to have got the letter  written-all  these make it unsafe to  act  upon  the confession incorporated in the letter. [730H] (3)  The  letter  which was addressed by SR to  the  Station House  Officer  was  in the nature  of  narration  of  what, according  to SR, he had been told by the accused.   Such  a letter  would constitute a statement for the purpose  of  s. 162,  Cr.P.C. The prohibition contained in s.  162,  Cr.P.C. relates  to  all statements made, during the  course  of  an investigation.   The  prohibition relating to the use  of  a statement  made to a police officer during the course of  an investigation  could  not  be set at naught  by  the  police officer not himself recording the statement of a person  but having  it  in the form of a communication  addressed  by  a person concerned to the police officer.  If a statement made by  a  person  to  a police officer  in  the  course  of  an investigation   is  inadmissible  except  for  the   purpose mentioned  in  s. 162, the same would be true  of  a  letter containing  narration  of facts addressed by a person  to  a police officer during the course of an investigation.  It is not  permissible to circumvent the prohibition contained  in s.  1162  by the investigating officer obtaining  a  written statement  of a person instead of the investigating  officer himself recording that statement.  The restriction placed by s.  162  on the use of statement made during the  course  of investigation is in general terms.  There is nothing in  the section  to show that the investigation must relate  to  any particular   accused  before  a  statement  to  the   police pertaining  to that accused can be held to be  inadmissible. The letter is, therefore, inadmissible in evidence. [732C-E; G] Sita Ram v. State of Uttar Pradesh, [1966] Supp.  S.C.R. 165 held inapplicable.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 22  of 1973. Appeal  by special leave from the judgment and  order  dated the 13th July 1972 of the High Court of Himachal Pradesh  at Simla in Criminal Appeal No. 31 of 1970 and Murder Reference No. 21 of 1970. 72 4 Yogeshwar Prasa , for the appellant. H. R. Khanna and M. N. Shroff, for the respondent. The Judgment of the, Court was delivered by KHANNA, J. Kali Ram (40) was tried in the court of  Sessions Judge Simla & Sirmur Districts for an offence under  section 302  Indian Penal Code for causing the death of Dhianu  (60) and  the  latter’s  daughter Nanti (40).   Charge  was  also framed  against  the  accused under section  392  read  with section 397 Indian Penal Code for having at the time of  the occurrence  committed robbery.  The learned  Sessions  Judge convicted  the accused under section 302  Indian  Penal-Code and  sentenced him to death.  On appeal and  reference,  the High  Court of Himachal Pradesh affirmed the conviction  and the  sentence of death.  The accused thereafter came  up  to

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this Court in appeal by special leave. The  prosecution case is that Dhianu deceased was  suffering from  leprosy.   This  disease  had  resulted  in  partially destroying the hands and feet of Dhianu.  For about a couple of months before the present occurrence.  Nanti, daughter of Dhianu,  had been staying with him in his house  in  village Amrahi.  There was no other house near the house of  Dhianu. Dhianu  did  business of money lending on  the  security  of ornaments. The accused, it is stated, is a previous convict having been convicted  in cases under sections 380, 454 and  457  Indian Penal  Code in the years, 1955, 1957, 1960, 1962  and  1963. He was sentenced to undergo various terms of imprisonment in those  cases.  The last sentence of imprisonment-  undergone by  the  accused was from December 17, 1963 to  November  7, 1967  on which day he was released from Central Jail  Nahan. On August 1, 1968 the police presented a challan against the accused under section 1 10 of the Code of Criminal Procedure in  the  court of District Magistrate Naban.   Notice  under section  112  of  the Code of Criminal  Procedure  was  then issued  to  the.  accused.   It  was  served  upon  him  for September 16., 1968.  As the. notice was not received  back, the  District Magistrate adjourned the case to  October  16, 1968 and thereafter to November 6, 1968. On  13 Asuj, which corresponds to September 28, 1968, it  is stated,  the  accused went at evening time to  the  shop  of Parma  Nand  (PW 14) in village Paliara, at  a  distance  of three  or four miles from the house of Dhianu.  The  accused spent the night with Parma Nand.  On the morning of 14 Asuj, corresponding to September 29, 1968, the accused gave Rs. 18 to  Parma  Nand for purchase of liquor and fish.   Fish  was thereafter  purchased by Parma Nand.  The accused and  Parma Nand  took liquor and fish on the evening of 14  Asuj.   The accused  then told Parma Nand that he had to meet Dhianu  of village Amralu and that Parma Nand should serve the  evening meals to him.  After taking his meals, the accused left  for the house of Dhianu deceased.  The way to village Amrahi  of Dhianu was shown to the, 725 accused  by,  Parma Nand.  At about mid-night hour  on  that night  the accused shouted to Parma Nand from  outside.  the shop.   Parma  Nand  asked the accused to come  in  but  the latter   replied  that  he  had  some  work.   The   accused thereafter went away. Dhianu deceased had two nephews, Hira Singh (PW 1) and Mehru (PW 10), who lived in village Lohara at a distance of half a mile  from, the house of Dhianu.  On October 1,  1968  Mehru went  to  a Gharat (flour ginding place).  On the  way  back Mehru did not see the cattle of Dhianu grazing in the field. On reaching home, Mehru told his brother Hira Singh that  he had  not  seen Dhianu’s cattle.  Hira Singh and  Mehru  then went to the house of Dhianu and found Dhianu and Nanti lying murdered  in the courtyard of their house.  The dead  bodies were covered with cloth.  On removing the cloth, Hira  Singh and Mehru noticed injuries on the heads of Dhianu and Nanti. The  bodies were in a state of decomposition.  The  door  of the  residential  room  was open and the  goods  were  lying scattered.  Hira Singh informed PW 31 Udey Singh, Pradhan of the Gram Panchyat about what he had seen.  On the advice  of the  Pradhan,  Hira  Singh went with  village  chowkidar  to police  station Renuka, at a distance of six miles from  the place of occurrence, and lodged there report PA at 1 a.m. on October 2, 1968.  On the following morning ASI Mohd.  Sardar (PW  49) accompanied by Hira Singh arrived at the  place  of occurrence.   Sub Inspector Attar Singh, who was  away  from

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the police station at the time the report was,lodged at  the police station, on learning of the occurrence, also  reached the place of occurrence at about 9 a.m. on October 2,  1968. Sub Inspector Attar Singh prepared inquest reports PB and PC relating  to the dead bodies of Dhianu and Nanti.  The  dead bodies  were thereafter sent to Civil Hospital Renuka  where post mortem examination was performed by Dr. N. C. Jain  (PW 43) on October 3, 1968. The case of the prosecution further is that on November  22, 1968 at 9.15 a.m. Kedar Nath (PW 2), who was in those days a clerk in Government High School, Tikri Dasakna, went to  the shop of one Mulak Raj for buying some goods.  Near that shop Kedar  Nath saw the accused, who was having a gun with  him. The  accused  called Kedar Nath and asked him  to  write,  a letter on his behalf to the Deputy Commissioner.  Mulak  Raj then  told Kedar Nath that the accused was a  dangerous  man and  that Kedar Nath should write the letter as  desired  by the accused.  Kedar Nath then told the accused ’that he  had to go to the school and that he would write the letter after taking  the  permission  of the Head  Master.   The  accused thereupon remarked that the Head Master was nobody and  that the  accused would shoot him.  Kedar Nath was at  that  time carrying a notebook.  At the dictation of the accused, Kedar Nath  wrote  a  22-page  letter on  behalf  of  the  accused addressed  to the Deputy Commissioner Nahan.  In the  course of  that letter, the accused referred to the previous  cases in  which  he  had  been  convicted.  as  well  as  to   the proceedings  under  section  110 of  the  Code  of  Criminal Procedure pending against him.  According to the accused, he had  been directed by police Sub Inspector to  report  twice at,  the police, station.  The  accused, however,  told  the Sub Inspector that it was difficult for him to do so.  The 726 accused  tried to meet the Deputy Commissioner at Nahan  and the  Chief Minister of Himachal Pradesh at Simla  but  could not do so.  The accused felt that as he had no money and  no one would be prepared to stand surety for him, he would have to go to jail.  It was also mentioned by the accused that he had  murdered Dhianu and Nanti because the accused had  been told  that Dhianu had Rs. 30,000 to 40,000 with him.   After getting  letter  PD  written from Kedar  Nath,  the  accused appended his signature to it.  The accused further told Kedr Nath  not  to  disclose  die matter  to  any  one  and  that otherwise  he  would  kill him (Kedar  Nath).   The  accused thereafter  went to the post office and sent the  letter  by registered post to the Deputy Commissioner Nahan.  The  said letter was received in the office of the Deputy Commissioner Nahan  on  November 27, 1968.  No action was taken  on  that letter. On  November 28, 1968, it is alleged, the accused  met  Sahi Ram  (PW  46).   Sahi Ram is the son  of  the  Lambardar  of village  Shalahan.  Sahi Ram told the accused not to  commit thefts.   The  accused then told Sabi Ram that  after  being released  from  jail, he had been involved in a  case  under section  1  10 of the Code of Criminal  Procedure.   As  the accused  felt that no one would stand surety for him and  as he  would have again to, go to jail for two or three  years, he  decided to commit such an offence as would  bring  money for  his  children.  The accused added that he,  bad  learnt that  Dhianu  was  a  rich man  and  that  the  accused  had committed the murder of Dhianu and his daughter.   According further  to the confession made by the accused to Sabi  Ram, the  accused  was served meals by Nanti and Dhianu  when  he went  to  their house.  After Dhianu and Nanti had  gone  to sleep,  the  accused  got up from his  bed  and  thought  of

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committing theft of the goods.  Feeling then began to  weigh with  the  accused  that  Dhianu,  who  was  suffering  from leprosy, would die of hunger.  This circumstance induced the accused to kill Dhianu.  Accordingly, the accused gave blows to Dhianu with a dhangra.  Nanti then got up and, on  seeing the injuries of Dhianu, she became unconscious.  The accused then went inside the house of Dhianu and picked up a  sword. With that sword, he gave further blows an the head and  neck of Dhianu.  He, also gave blows with the sword to Nanti.  It was  further stated by the accused that be found Rs. 180  in cash and silver ware weighing about two or three  kilograms. Sahi  Ram then wrote letter PEEE dated November 28, 1968  to the  Station House Officer of police station Renuka  wherein Sahi  Ram  apprised the Station House Officer of  the  extra judicial  confession  made  by  accused  to  Sabi  Ram,   as mentioned  above.   Letter PEEE was received at  the  police station on December 2, 1968.  Sub Inspector Budh Ram (PW 50) then  recorded the statement of Sabi Ram.  On  December  20, 1968  Sub  Inspector Attar Singh on receipt  of  information went to village Minus.  On the night between December 20-21, 1968  the  Sub  Inspector surrounded  a  hotel  wherein  the accused  was  stated to be present in village  Minus.   The, accused  was arrested early on the morning of  December  21, 1968  from that hotel.  A gun dhangra P9, currency notes  of the value of Rs. 684 and some other articles were taken into possession from the accused. 727 The  case,  of  the  prosecution  further  is  that   silver ornaments  and other articles belonging to Dhianu and  Nanti deceased, as well as some ornaments which had been left with Dhianu as security: for the money lent by him were pawned by the  accused  to,  various persons  after  this  occurrence. Those  ornaments and articles were after the arrest  of  the accused  recovered at the instance of the accused  from  the persons with whom they had been pawned.  After the  recovery of the ornaments, Shri Malhotra magistrate on being moved by the  police, mixed the recovered ornaments with sonic  other ornaments.  Salkoo, husband of Nanti deceased, and one Zalmu identified the recovered ornaments as those which were  with the two deceased persons. The  accused in his statement under section 342 of the  Code of  Criminal Procedure denied the various  allegations  made against  him.   It was, denied by the accused  that  he  had stayed  with Parma Nand PW at his shop and that he had  gone from  that  shop towards the house of Dbianu.  It  was  also denied by the accused that he had got letter PD written from Kedar  Nath  PW or that he had sent the same to  the  Deputy Commissioner.   The accused further denied having  made  any confession  to Sahi Ram.  It was also denied by the  accused that any ornaments had been recovered at his instance.   The prosecution  allegation about the recovery of  dhangra  from him  was likewise denied by the, accused.  According to  the accused,  Sahi Ram PW and two others were, engaged with  him in doing the business of opium smuggling.  Sahi Ram and one other person misappropriated goods worth Rs. 5000  whereupon there  was a dispute between the accused and Sahi Ram.   The accused  added that he had been falsely implicated  in  this case at the instance of Sahi Ram. The  trial court held that document PD wherein the.  accused had  made a confession about his having murdered Dhianu  and Nanti  had been voluntarily got written by the  accused.  it was  further  held  that  the  accused  had  made  an   oral confession  about his guilt to Sahi Ram PW. The  prosecution allegation  that  the ornaments belonging  to  the  deceased persons were found in possession of the accused and had been

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pawned by, him was also accepted by the trial court.  It was also held by the trial court that the accused had stayed  at the  shop  of  Parma  Nand in village  Paliara  on  the  day preceding the occurrence and that he had gone from that shop towards  the house of the deceased.  The evidence  of  Parma Nand  that the accused had shouted to him from  outside  the shop at mid-night hour and that he had thereafter gone  away was not accepted by the trial court. On  appeal and reference, the High Court upheld the  finding of  the  trial court with regard to the  confession  of  the accused contained in letter PD.  The High Court also  agreed with the trial court that the accused had made confession to Sahi Ram as contained in Sahi Ram’s letter PEEE.  The, High Court  further  upheld  the  findings  of  the  trial  court regarding the stay of the accused with Parma Nand before the occurrence.  The High Court agreed with the trial court that the  evidence  of  Parma Nand regarding  the  shout  of  the accused at mid-night hour from outside the shop could not be accepted.  The 728 High   Court,  however,  disagreed  with  the  trial   court regarding   its  findings  of  the  possession   of   silver ornaments,  belonging  to the two  deceased persons  by  the accused  after the occurrence.  As regards the  recovery  of dhangra, the High Court held that the same was not shown  to have been recovered from the possession of the accused. In  appeal before us, Mr. Yogeshwar Prasad has assailed  the findings  of the High Court on the basis of which  the  High Court  arrived  at  the  conclusion of  the,  guilt  of  the accused.   It  has been urged that the evidence  adduced  in support of those findings is innately unconvincing and it is not safe to base the conviction of the accused on a  capital charge  upon such evidence.  As against that, Mr. Khanna  on behalf  of the State has supported the findings of the  High Court  and  has  urged  that  no  case  has  been  made  for interference with those findings. It cannot be disputed that Dhianu and Nanti were the victims of  a murderous assault.  Dr. Jain, who performed  the  post mortem  examination  on  the  two  dead  bodies,  found  the following two injuries on the body of Dhianu:               "Injury  (1).  A sharp wound injury  over  the               left side of the skull.  Injury over the scalp               is running from outer angle of the left eye to               the middle of the, forehead, reaching I" above               the  hair line.  The whole socket of the  left               eye is ruptured, frontal bone and part of  the               parietal bone are completely fractured  around               the course of the wound.  Wound is 5-1/2 broad               and " above the left eye.  Scalp and skull  is               completely  separated from the line  of  wound               due to decomposition.  Whole cranial cavity is               seen through the wound.  Whole of brain matter               and  meanings have sloughed out.  Eye ball  is               also eaten up.               (2)   A sharp wound over the forehead  running               from the bridge of the nose going towards  the               right  frontal  prominence.  Wound  is  4-1/2"               long tapering at both the ends and I" wide  in               the  centre of the wound.  Margins  are  even.               Bones   around   the  Wound   are   completely               fractured.  Maggots from the wound coming  and               going out.  The rest of the parts of the  body               were  normal except that they were in a  state               as described above."               The following three injuries were found on the

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             body of Nanti:               "A  sharp wound over the scalp, starting  from               forehead  on right side 1/4 from upper  margin               of middle of right eye ,to, the right parietal               bone  on the same side- Wound is  ending  near               the middle of parietal bone.  Wound is  7-1/2"               long and tapering at both the ends.  Wound  is               I"  apart  at  the  prominence  of  the  right               frontal  bone.  Skull underneath the wound  is               completely  fractured.  Due to  this,  injury,               whole in= bones of right eye and bones of  the               bridge  of  nose  is,  completely   fractured.               Pieces  of  bones  are clearly  seen   in  the               hollow of the skull.  And one can nicely  peep               into               729               the  hollow of skull by making wound apart  by               fingers.  Margins of the wound are even.               (2)   A  sharp cut wound of 8" size,  starting               from  1-1/2"  above  the middle  of  left  eye               having a semilunar shape, reaching to the most               prominent part of the, occipital bone.   Wound               is  tapering  at both the  ends,  margins  are               even.   Scalp and skull is  completely  apart.               Skull during the course of wound is completely               fractured and depressed at the places.               (3)   Neck   injury.   A  deep   sharp   wound               starting from the right angle of the  mandible               to  the middle of the neck and reaching to  I"               short of laryngeal prominence, wound is 2-1/2"               deep at the angle of the mandible and tapering               towards  the middle of neck.   All  underlying               structures,  nerves, arteries, veins are  cut,               laryngeal  prominence is also fractured  Wound               is 3" long and 1/2" broad." According to Dr. Jain, the injuries on the bodies of  Dhianu and  Nanti had been caused with a heavy sharp  weapon.   The injuries were sufficient in the ordinary course of nature to cause death. The  case of the prosecution is that the injuries to  Dhianu and Nanti deceased were caused by the accused.  The  accused has, however, denied this allegation.  In order to bring the charge home to, the accused, the prosecution led evidence on a number of points.  The High Court accepted the prosecution allegation  in this respect and. based its  conclusion  upon the following three pieces of evidence :               (1)   The  evidence  of Parma  Nand  that  the               accused  had stayed with him on September  29,               1968 and had on the evening    of   that   day               proceeded towards the house of Dhianu deceased               after he had been shown the way by Parma Nand.               (2)   The confession of the accused  contained               in letter PD.               (3)   The  extra judicial confession  made  by               the accused to Sahi Ram incorported in  letter               PEEE. We may first deal with the deposition of Parma Nand (PW 14). The  deposition  consists of three parts.   The  first  part relates  to the stay of the accused with Parma Nand  at  his shop  in village Paliara on September 28 and 29,  1968  when some  fish and liquor are stated to have been taken  by  the accused and Parma Nand.  This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime.  The second part of the deposition is to the effect that the accused on the evening of September 29, 1968

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told Parma Nand that he had to go to the house of Dhianu and that  Parma Nand showed at the instance of the  accused  the way  which  leads to the house of Dhianu at  a  distance  of three or four miles from the shop of Parma Nand.  We find it difficult  to  accept this part of the deposition  of  Parma Nand.  Parma Nand admits that he came to know of the  murder of Dhianu and Nanti about four days after those persons were found  to  have been murdered. It would,  therefore,  follow that Parma Nand came to know’ of 730 the murder of Dhianu and Nanti on or about October 4,  1968. Had the accused left for the house of Dhianu deceased on the evening of September 29, and had Parma Nand PW come to  know that  Dhianu  and Nanti were murdered in their  house,  this fact must have aroused the suspicion of Parma Nand regarding the  complicity of the accused.  Parma Nand,  however,  kept quiet  in the matter and did not talk of it.  The  statement of  Parma  Nand was recorded by the police on  December  11, 1968. If  a  witness professes to  know  about  a  gravely incriminating  circumstance against a person accused of  the offence of murder and the witness keeps silent for over  two months regarding the said incriminating circumstance against the  accused,  his statement relating to  the  incriminating circumstance, in the absence of any cogent reason, is  bound to lose most of its value.  No cogent reason has been shown to  us as to why Parma Nand kept quiet for over  two  months after coming to know of the murder of Dhianu and Nanti about the  fact  that the accused had left for the, house  of  the deceased shortly before the murder.  We are, therefore,  not prepared  to place any reliance upon the second part of  the deposition of Parma Nand.  The third part of the  deposition of  Parma Nand PW pertains to the shout of the accused  from outside  the shop of Parma Nand at about mid-night  hour  on the  night of occurrence.  This part of the  deposition  has not been accepted by the trial court and the High Court  and we find no valid reason to take a different view. Coming to the confession of the accused, which is alleged to be  incorporated  in letter PD, we find  that  the  question which arises for consideration is whether the letter sent by the accused to the Deputy Commissioner contained  confession about his having murdered Dhianu and Nanti.  The fact that a registered  letter  purporting to be from  the  accused  was received in the office of the Deputy Commissioner cannot  be disputed.  The controversy before us has, however, ranged on the  point  whether  the  letter  contained  any  confession regarding  the murder of Dhianu and Nanti by the accused  or whether  that  portion of the letter has  been  subsequently inserted.   In  this respect we find that letter  PD  is  on loose leaves.  It is only the first leaf of the letter which bears  the stamp of the office of the  Deputy  Commissioner, while  the remaining leaves have not been stamped.   In  the circumstances,  it was not difficult to replace or add  some other leaves.  According to PW Sundar Singh, who was working as postmaster at Kurag during the relevant days, the  letter addressed   by  the  accused  to  the  Deputy   Commissioner consisted  of  18 or 19 pages.  Letter PD  produced  at  the trial consists of 22 pages.  PW 21 Mehta, Superintendent  of Deputy Commissioner’s office, has deposed that on receipt of letter  PD, he read that letter.  An entry was then made  in the  diary  that letter PD related to the  subject  of  jail dispute.   Had  the letter addressed by the accused  to  the Deputy  Commissioner  contained confession  about  a  double murder committed by the accused, it is difficult to  believe that  the  Superintendent of  Deputy  Commissioner’s  office would  have  after  reading the letter kept  quiet  and  not

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brought it to the notice of the authorities concerned.   The fact  that  no action was taken on the letter  till  it  was taken into possession by the police on January 1, 731 1969 lends support to the contention that letter PD did  not contain the confession.  The portion of the letter  relating to  the  confession is also somewhat  incongruous  with  the entire tenor and context ’of the letter.  The letter appears to have been sent by the accused to the Deputy  Commissioner to  show  that  after his release from  jail  in  1967,  the accused had turned a new leaf and he wanted the Deputy  Com- missioner  to give him help and relief so that  the  accused might  rehabilitate himself and support his family.   It  is not  likely  that a person asking for  relief  would-make  a confession  that  after  his  release  from  jail,  he   has committed two murders. The circumstances in which the accused is stated to have got letter  PD  written from Kedar Nath (PW 2) are  also  rather peculiar.   According to Kedar Nath, the  accused  compelled Kedar  Nath at the point of gun to write that  letter.   The accused also told Kedar Nath not to disclose the contents of the  letter  to  any one.  It is not clear  as  to  why  the accused should ask Kedar Nath to keep the matter secret when he was himself, according to letter PD, making a  confession about his having committed the crime of two murders.   Apart from  that, if Kedar Nath came to know on November 22,  1968 that  the  accused had committed the murder  of  Dhianu  and Nanti, his failure to make any statement IQ the police  till December  24,  1968  regarding the confession  made  by  the accused to the witness would deprive his evidence of much of its value.  We, therefore, find it difficult to act upon the confession incorporated in letter PD. The  last  piece of evidence upon which the High  Court  has maintained  the  conviction of the accused consists  of  the confession  of the accused contained in letter PEEE sent  by Sahi  Ram (PW 4) to the Station House Officer  Renuka.   The first question which arises for consideration in respect  of letter  PEEE  is  whether  it  is  admissible  in  evidence. Section  162  of the Code of Criminal  Procedure  reads  as, under :               162.  (1) No statement made by any person to a               police   officer   in  the   course   of.   an               investigation  under  this Chapter  shall,  if               reduced into writing, be signed by the  person               making it; nor shall any such statement or any               record  thereof, whether in a police diary  or               otherwise,  or any part of such  statement  or               record,  be  used  for any  purpose  (save  as               hereinafter provided) at any inquiry or  trial                             in respect of any offence, under  inve stigation               it the time when such statement was made :               provided  that when any witness is called  for               the prosecution in such inquiry or trial whose               statement  has  been reduced into  writing  as               aforesaid, any part of his statement, if  duly               proved,  may be used by the accused, and  with               the   permission   of  the   Court,   by   the               prosecution to contradict such witness in  the               manner  provided by Section 145 of the  Indian               Evidence  Act, 1872 and when any part of  such               statement is               732               so used, any part thereof may also be, used in               the  re-examination of such witness,  but  for

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             the  purpose  only of  explaining  any  matter               referred to in his cross-examination.               (2)   Nothing in this section shall be  deemed               to  apply to any statement falling within  the               provisions  of Section 32, clause (1)  of  the               Indian  Evidence Act, 1872, or to  affect  the               provisions of Section 27 of that Act." Bare  perusal  of the provision reproduced  above  makes  it plain  that  the statement made by any person  to  a  police officer in the course of an investigation cannot be used for any  purpose  except  for the  purpose  of  contradicting  a witness, as mentioned in the proviso to sub-section (1),  or for the purposes mentioned in sub-section (2) with which  we are  not  concerned in the present  case.   The  prohibition contained  in  the section relates to  all  statements  made during  the course of an investigation.  Letter  PEEE  which was  addressed by Sahi Ram to Station House Officer  was  in the  nature of narration of what, according to Sahi Ram,  he had  been  told  by  the accused.  Such  a  letter,  in  our opinion,  would  constitute  statement for  the  purpose  of section  162  of  the  Code  of  Criminal  Procedure.    The prohibition  relating  to the use of a statement made  to  a police officer during the course of an investigation  cannot be set at naught by the police officer not himself recording the  statement  of a person but having it in the form  of  a communication  addressed  by  the person  concerned  to  the police officer.  If a statement made by a person to a police officer  in the course of an investigation is  inadmissible, except  for the purposes mentioned in section 162, the  same would  be  true of a letter containing  narration  of  facts addressed by a person to a police officer during the  course of  an investigation.  It is not permissible  to  circumvent the   prohibition   contained   in  section   162   by   the investigating officer obtain a written statement of a person instead of the investigating officer himself recording  that statement. It has been argued by Mr. Khanna on behalf of the State that at  the  time letter PEEE was addressed by Sahi Ram  to  the police, no investigation had been made by the police against the  accused  and, as such, the aforesaid letter  cannot  be held  to be inadmissible.  This contention, in our  opinion, is  wholly  devoid  of force.   The  restriction  placed  by section  162 on the use of statement made during the  course ,of investigation is in general terms.  There is nothing  in the  section to show that the investigation must  relate  to any  particular  accused before a statement  to  the  police pertaining to that accused can be held to be inadmissible. Reference  has been made by Mr. Khanna to the case  of  Sita Ram  v.  State of Uttar Pradesh(’) wherein it  was  held  by majority  that a letter addressed by the accused to  a  sub- inspector  of  police  containing  his  confession  was  not inadmissible  under section 25 of the Indian  Evidence  Act. There is nothing in the aforesaid judgment to show that  the letter in question had been written during the course of the (1)  [19661 Supp.  S. C. R. 265. 733 investigation of the case.  As such, this Court in that cast did  not consider the question as to whether the  letter  in question  wag inadmissible under section 162 of the Code  of Criminal  Procedure.  As such, the State cannot derive  much help from that authority. We  would, therefore, hold that letter PEEE is  inadmissible in evidence. Although letter PEEE has been held by us to be  inadmissible we would still have to deal with the oral deposition of Sahi

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Ram  that  the,  accused had made a  confession  to  him  on November  28,  1968.   The version of the  accused  in  this respect  is  that Sahi Ram is inimical to him as  he  had  a dispute with him because of some misappropriation  committed by  Sahi  Ram  in connection with the  smuggling  of  opium. According  to Sahi Ram, he happened to meet the  accused  on November 28, 1968 when the accused made a confession to  him about  his having committed the murder of Dhianu and  Nanti. The  story  about  the gratuitous  confession  made  by  the accused  to  Sahi  Ram,  in  our  opinion,  hardly  inspires confidence.  It is not the case of the prosecution that  the police  was after the accused and that the accused  in  that connection  went  to Sahi Ram to seek his help  and  made  a confession  to  him.   Sahi  Ram is the  son  of  a  village lambardar.   It  has been argued on behalf of  the  accused- appellant that the police, with a view to see that the crime relating to the murder of Dhianu and Nanti might not  remain untraced, utilised the services of Sahi Rain for bringing in the evidence regarding the extra-judicial confession of  the accused.   Looking  to all the circumstances  we  find  this contention  to  be  not devoid of  all  force.   Mr.  Khanna submits  that both the trial court and the High  Court  have accepted  the  evidence  of  Sahi  Ram  and  we  should  not interfere  with the concurrent finding in this respect.   We find  it difficult to accede to this submission  because  we find  that  both the trial court as well as the  High  Court were influenced by the fact that Ex.  PEEE was admissible in evidence.   As  letter PEEE has been held by us  to  be  not admissible  and  as we find that the statement of  Sahi  Ram about  the  extra-judicial  confession  is  otherwise   also lacking  in credence, there should not arise any  difficulty in  this  Court disaggreeing with the above finding  of  the trial court and the High Court. Mr.  Khanna on behalf of the State has also tried to  assail the  finding of the High Court regarding the  possession  of silver ornaments of the two deceased persons by the accused. In  our  opinion,  the finding of the  High  Court  in  this respect  is based upon the appraisement of the  evidence  on record and there is no valid ground to disturb it. Observations  in  a recent decision of this  Court,  Shivaji Sahabrao  Bobade & Anr. v. State of Maharashtra(’) to  which reference  has been made during arguments were not  intended to  make  a departure from the rule of  the  presumption  of innocence of the accused and his entitlement to the  benefit of reasonable doubt in criminal cases.  One of the  cardinal principles which has always to be kept in view in our system (1) Cr. App.Ho.26 of 1970    decided on August 27, 1973 734 of  administration of justice for criminal cases is  that  a person  arraigned as an accused is presumed to  be  innocent unless  that presumption is rebutted by the  prosecution  by production  of evidence as may show him to be guilty of  the offence with which he is charged.  The burden of proving the guilt  of the accused is upon the prosecution and unless  it relieves  itself of that burden, the courts cannot record  a finding  of  the guilt of the accused.   There  are  certain cases  in which statutory presumptions arise  regarding  the guilt of the accused, but the burden even in those cases  is upon  the prosecution to prove the existence of facts  which have  to  be present before the presumption  can  be  drawn. Once those facts are shown by the prosecution to exist,  the court  can raise the statutory presumption and it would,  in such an event, be for the accused to rebut the  presumption. The onus even in such cases upon the accused is not as heavy as  is normally upon the prosecution to prove the  guilt  of

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the  accused.   If some material is brought  on  the  record consistent  with  the  innocence of the  accused  which  may reasonably be true, even though it is not positively  proved to be true, the accused would be entitled to acquittal. Leaving aside the cases of statutory presumptions, the  onus is  upon the prosecution to prove the different  ingredients of  the  offence  and unless it discharges  that  onus,  the prosecution  cannot  succeed.   The court  may,  of  course, presume, as mentioned in section 114 of the Indian  Evidence Act,  the  existence of any fact which it thinks  likely  to have  happened,  regard being had to the  common  course  of natural  events,  human  conduct  and  public  and   private business.  in their relation to the facts of the  particular case.   The illustrations mentioned in that section,  though taken  from  different spheres of human  activity,  are  not exhaustive.   They are based upon human experience and  have to be applied in the context of the facts of each case.  The illustrations are merely examples of circumstances in  which certain  presumptions may be made.  Other presumptions of  a similar kind in similar circumstances can be made under  the provisions   of  the  section  itself  Whether  or   not   a presumption  can be drawn under the section in a  particular case depends ultimately upon the facts and circumstances  of each  case.  No hard and fast rule can be laid down.   Human behaviour  is so complex that room must be left for play  in the  joints.   It is not possible to formulate a  series  of exact  propositions  and  confine  human  behaviour   within straitjackets.  The raw material here is far too complex  to be  susceptible  of  precise  and  exact  propositions   for exactness here is a fake. Another  golden  thread which runs through the  web  of  the administration  of justice in criminal cases is that if  two views are possible on the evidence adduced in the case,  one pointing  to the guilt of the accused and the other  to  his innocence,  the  view  which is favourable  to  the  accused should  be adopted.  This principle has a special  relevance in  cases wherein the guilt of the accused is sought  to  be established   by   circumstantial   evidence.    Rule    has accordingly been laid down that unless the evidence  adduced in  the case is consistent only with the hypothesis  of  the guilt  of the accused and is inconsistent with that  of  his innocence, the court should refrain from recording a finding of  guilt of the accused.  It is also an accepted rule  that in case the 73 5 court  entertains reasonable doubt regarding the,  guilt  of the  accused,  the  accused must have the  benefit  of  that doubt.   Of  course, the doubt regarding the  guilt  of  the accused should be reasonable : it is not the doubt of a mind which  is  either  so vacillating that it  is  incapable  of reaching  a firm conclusion or so timid that it is  hesitant and  afraid  to take things to their  natural  consequences. The  rule  regarding  the benefit of  doubt  also  does  not warrant  acquittal  of the accused by  resort  to  surmises, conjectures or fanciful considerations.  As mentioned by  us recently in the case of State of Punjab v. Jagir Singh,(’) a criminal trial is not like a fairy tale wherein one is  free to  give  flight  to one’s  imagination  and  phantasy.   It concerns itself with the question as to whether the  accused arraigned  at the trial is guilty of the offence with  which he  is charged.  Crime is an event in real life and  is  the product of interplay of different human emotions.  In arriv- ing at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence  by the yardstick of probabilities,  its  intrinsic

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worth and the animus of witnesses.  Every case in the  final analysis would have to depend upon its own facts.   Although the benefit of every reasonable doubt should be given to the accused,  the  courts  should not at the  same  time  reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures. It  needs  all  the  same to  be  re-emphasised  that  if  a reasonable doubt arises regarding the guilt of the  accused, the  benefit  of that cannot be withheld from  the  accused. The  courts  would  not be  justified  in  withholding  that benefit because the acquittal might have an impact upon  the law  and  order  situation or  create  adverse  reaction  in society or amongst those members of the society who  believe the  accused to be guilty.  The guilt of the accused has  to be  adjudged  not by the fact that a vast number  of  people believe  him  to be guilty but whether his  guilt  has  been established by the evidence brought on record.  Indeed,  the courts  have  hardly  any other  yardstick  or  material  to adjudge  the  guilt  of the  person  arraigned  as  accused. Reference is sometimes made to the clash of public  interest and  that of the individual accused.  The conflict  in  this respect,  in  our opinion, is more apparent than  real.   As observed  on  page 3 of the book entitled "The  Accused"  by J.A.  Coutts  1966  Edition,  "When  once  it  is  realised, however,  that  the  public  interest  is  limited  to   the conviction,  not of the guilty, but of those proved  guilty, so  that  the  function  of the  prosecutor  is  limited  to securing  the conviction only of those who can  legitimately be  proved guilty, the clash of interest is seen to  operate only within a very narrow limit, namely, where the  evidence is such that the guilt of the accused should be established. In  the case of an accused who is innocent, or  whose  guilt cannot  be proved. the public interest and the  interest  of the accused alike require an acquittal." It is no doubt true that wrongful acquittals are undesirable and  shake  the  confidence of the people  in  the  judicial system,  much worse, however, is the wrongful conviction  of an  innocent person.  The consequences of the conviction  of an innocent person are far more (1)  Cr.  App. 7 of 1972 decided on August 6, 1973 7 3 6 serious  and  its  reverberations cannot but be  felt  in  a civilized society.  Suppose an innocent person is  convicted of the offence of murder and is hanged, nothing further  can undo the mischief for the wrong resulting from the unmerited conviction  is irretrievable.  To take another instance,  if an  innocent  person  is  sent to  jail  and  undergoes  the sentence,  the  scars  left by the  miscarriage  of  justice cannot  be erased by any subsequent act of expidation.   Not many persons undergoing the pangs of wrongful conviction are fortunate  like  Dreyfus to have an Emile Zola  to  champion their  cause  and succeed in getting the  verdict  of  guilt annulled.   All this highlights the importance of  ensuring. as  far  as  possible,  that there  should  be  no  wrongful conviction  of  an  innocent  person.   Some  risk  of   the conviction  of the innocent, of course, is always  there  in any system of the administration of criminal justice.   Such a  risk can be minimised but not ruled out  altogether.   It may in this connection be apposite to refer to the following observations  of  Sir Carleton Allen quoted on page  157  of "The Proof of Guilt" by Glanville Williams, Second Edition:               "I dare say some sentimentalists would  assent               to  the proposition that it is better  that  a               thousand,  or even a million,  guilty  persons               should  escape than that one  innocent  person

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             should   suffer;   but  no   responsible   and               practical  person  would accept such  a  view.               For  it  is  obvious  that  if  our  ratio  is               extended  indefinitely,  there comes  a  point               when  the whole system of justice  has  broken               down and society is in a state of chaos." The fact that there has to be clear evidence of the guilt of the  accused  and  that in the absence of  that  it  is  not possible  to record a finding of his guilt was  stressed  by this  Court  in the case of Shivaji Sahabrao Bobade  &  Anr. (supra) as is clear from the following observations :               "Certainly it is a primary principle that  the               accused  must be and not merely may be  guilty               before  a  court can convict  and  the  mental               distinction between ’may be’ and ’must be’  is               long  and divides vague conjectures from  sure               considerations". As  a result of the above, we accept the appeal,  set  aside the  judgments  of the. trial court and the High  Court  and acquit the accused. P.B.R. Appeal allowed. 737