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PETITIONER: KASHMIRA SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH.

DATE OF JUDGMENT: 04/03/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN FAZAL ALI, SAIYID MUKHERJEA, B.K.

CITATION:  1952 AIR  159            1952 SCR  526  CITATOR INFO :  F          1952 SC 214  (28)  F          1956 SC  56  (5)  RF         1957 SC 216  (18)  R          1964 SC1184  (12)  F          1973 SC1204  (14)  R          1987 SC 955  (9)

ACT:     Indian Evidence Act  (1 of 1872), ss. 3,  30--Confession of      co-accused--Evidentiary      value--Evidence      of accomplice--Necessity of corroboration--Confession--Practice of examining magistrate who recorded the confession.

HEADNOTE:     The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term.  It  does not come within the meaning of evidence contained in sec.  3 of the Indian Evidence Act inasmuch as it is not required to be  given  on oath, nor in the presence of the  accused  and cannot be tested by cross-examination.  It is a much  weaker type  of evidence than the evidence of an approver which  is not subject to any of these infirmities.     Such a confession can only be used to tend assurance  to other  evidence  against  a co-accused. The  proper  way  to approach  a  case  of this kind is, first,  to  marshal  the evidence against the accused excluding the confession  alto- gether  from  consideration and see whether, if  it  is  be- lieved,  a conviction could safely be based on it. If it  is capable  of belief independently of the confession, then  it is  not necessary to call the confession in aid.  But  cases may  arise  where the judge is not prepared to  act  on  the other  evidence  as it stands even though, if  believed,  it would  be  sufficient to sustain a conviction.  In  such  an event the judge may call in aid the confession and use it to lend  assurance to the other evidence and thus fortify  him- self in believing what without the aid of the confession  he would not be prepared to accept.     Bhuboni  Sahu  v. The King (76 I.A.  147)  relied  upon. Emperor v. Lalit Mohan Chuckerbutty (38 Cal. 559 at 588) and In re Periyaswami Moopan (I.L.R. 54 Mad. 75) referred to.     A conviction can be based on the uncorroborated testimo-

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ny  of  an  accomplice provided the judge has  the  rule  of caution, which experience dictates, in mind.  Rameshwar v. State of Rajasthan [1952] S.C.R. 377  referred to.    The rule of caution is that save in exceptional  circum- stances one accomplice cannot be used to corroborate  anoth- er,  nor can he be used to corroborate a person  who  though not an accomplice is no more reliable than one.   It  is  not  proper or desirable for  the  prosecution  to examine as a witness the magistrate who recorded the confes- sion, 527

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  53 of  1951.  Appeal by special leave from  the   Judgment  and Order dated the 8th June 1951 of the’ High Court of  Judica- ture  at Nagpur (Hemeon and Rao JJ.) in Criminal Appeal  No. 297 of 1950, arising out of the Judgment and Order dated the 11 th September 1950 of the Court of the Additional Sessions Judge  of  Bhandara  in  Sessions  Trial  No.  25  of  1950. Bakshi Tek Chand, (Gopal Singh, with him) for the appellant. S. K. Kapoor, for the respondent.    1952. March 4. The Judgment of the Court was delivered by     BOSE J.--The appellant Kashmira Singh has been convicted of the murder of one Ramesh, a small boy aged five, and  has been  sentenced  to death. He was granted special  leave  to appeal.  Three other persons were tried along with him. They were his brother Gurudayal singh, his nephew   Pritipalsingh (son  of  Gurudayal), a boy of eleven, and  one  Gurubachan- singh.  Gurudayal and pritipal have been acquitted.  Guruba- chansingh confessed and was convicted. He was also sentenced to death. He has not appealed here.     The  murder was a particularly cruel and  revolting  one and  for  that reason it will be necessary  to  examine  the evidence  with  more than ordinary care  lest  the  shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.     The  prosecution case is this. The deceased  Ramesh  was the  son of P.W. 48 L.P. Tiwari who was the Food Officer  at Gondia  at the relevant date. The appellant  Kashmira  Singh was  an Assistant Food Procurement Inspector there.  On  the 1st  of July, 1949, Tiwari found the appellant and  Harbilas (P.W.  31) getting rice polished at a certain rice mill.  At that  date the polishing of rice was prohibited by  a  State law.  Tiwari accordingly reported the matter to  the  Deputy Commissioner  of  Bhandara.  He  suspended  the 528 appellant and later his services were terminated by an order of  the State Government with effect from the 7th  of  July. The  orders were communicated on the 17th of November.  This embittered  the appellant who on at least two occasions  was heard to express a determination to be revenged.     In  pursuance  of this determination he got  into  touch with  the confessing accused Gurubachan singh  and  enlisted his services for murdering the boy Ramesh.     On the 26th of December, 1949, festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia.  The  boy Ramesh was there in the morning  and  from there  was enticed to the house of the  appellant’s  brother Gurudayalsingh and was done to death in a shockingly revolt- ing fashion by the appellant, with the active assistance  of Gurubachansingh,  in  the middle of the day at about  12  or

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12-30.  The body was then tied up in a gunny bag and  rolled up  in a roll of bedding and allowed to lie  in  Gurudayal’s house till about 7 p.m.      At  7  p.m. the body wrapped as above  was  carried  by Gurubachan  on his head to a chowkidar’s hut near  the  Sikh Gurudwara.  The appellant accompanied him. The map,  Exhibit P-18A, shows that the distance along the route indicated was about half a mile to three quarters of a mile.  It was  left there till about midnight.      Shortly  before midnight the appellant  and  Gurubachan engaged  the  services of a rickshaw  coolie  Shambhu  alias Sannatrao,  P.W. 14. They took him to the  chowkidar’s  hut, recovered the bundle of bedding and went in the rickshaw  to a  well  which appears from the map, Exhibit 1’-18A,  to  be about  half a mile distant. There the body was  thrown  into the well. ]hat in brief is the prosecution ease.        Gurubachan’s confession has played an important  part in  implicating  the  appellant, and the  question  at  once arises, how far and in what way the confession of an accused person can be used against a co-accused ? It is evident that it is not evidence in the ordinary 529 sense  of  the  term because, as the Privy  Council  say  in Bhuboni Sahu v. The King(1)       "It  does  not indeed come within the  definition  of" ’evidence’  contained in section 3 of the Evidence Act.,  It is not required to be given on oath, nor in the presence  of the accused, and it cannot be tested by crossexamination."   Their Lordships also point out that it is  "obviously  evidence of a very weak type.........  It is  a much weaker type of evidence than the evidence of an approv- er, which is not subject to any of those infirmities."     They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support  of  other evidence." In view of these  remarks  it would be pointless to cover the same ground, but we feet  it is  necessary  to expound this  further  as  misapprehension still exists. The question is, in what way can it be used in support of other evidence ? Can it be used to fill in  miss- ing  gaps ? Can it be used to corroborate an accomplice  or, as in the present case, a witness who, though not an  accom- plice, is placed in the same category regarding  credibility because the judge refuses to believe him except in so far as he is corroborated ?     In  our  opinion, the matter was put succinctly  by  Sir ’Lawrence Jenkins in Emperor v. Lalit Mohan  Chuckerbutty(2) where  he  said that such a confession can only be  used  to "lend assurance to other evidence against a co-accused  "or, to put it in another way, as Reilly J. did in In re Periyas- wami Moopan(3)-      "the  provision goes no further than this--where  there is evidence against the co-accused sufficient, if  believed, to  support his conviction, then the kind of confession  de- scribed  in  section 30 may be thrown into the scale  as  an additional reason for believing that evidence." (1)  [1949] 76 I.A. 147 at 155.   (3) [1931] I.L.R. 54  Mad. 75 at 77. (2) [1911] I.L.R. 38 CAl. 559 at 588. 530     Translating these observations into concrete terms  they come  to.  this. The proper way to approach a case  of  this kind is, first, to marshal the evidence against the  accused excluding  the confession altogether from consideration  and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the

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confession,  then of course it is not necessary to call  the confession  in aid. But cases may arise where the  judge  is not prepared to act on the other evidence as it stands  even though,  if  believed, it would be sufficient to  sustain  a conviction.  In such an event the judge may call in aid  the confession  and use it to lend assurance to the  other  evi- dence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.      Then, as regards its use in the corroboration of accom- plices and approvers.  A co. accused who confesses is  natu- rally an accomplice and the danger of using the testimony of one  accomplice t0 corroborate another has  repeatedly  been pointed  out.  The  danger is in no way  lessened  when  the "evidence"  is not on oath and cannot be  tested  by  cross- examination. Prudence will dictate the same rule of  caution in  the  case of a witness who though not an  accomplice  is regarded by the judge as having no greater probative  value. But all these are only rules of prudence. So far as the  law is concerned, a conviction can be based on the uncorroborat- ed  testimony  of an accomplice provided the judge  has  the rule  of  caution, which experience dictates,  in  mind  and gives reasons why he thinks it would be safe in a given case to  disregard  it. Two of us bad occasion  to  examine  this recently  in  Rameshwar  v. The State  of  Rajasthan(1).  It follows  that the testimony of an accomplice can in  law  be used  to  corroborate another though it ought not to  be  so used  save  in  exceptional circumstances  and  for  reasons disclosed.  As the Privy Council observe in Bhuboni Sahu  v. The King(2):--      "The  tendency to include the innocent with the  guilty is peculiarly prevalent in India, as judges have (1) [1952] S.C.R. 377.              (2) (1949) 76 I A.147 at 157. 531 noted on innumerable occasions, and it is very difficult for the  court to guard against the danger.........   The   only real  safeguard against the risk of condemning the  innocent with  the guilty lies in insisting on  independent  evidence which in some measure implicates such accused."      Turning  now  to  the facts of the  present  case.  The evidence  on  which the prosecution relies, apart  from  the confession, is this :--     (1)  Previous  association between  Gurubachan  and  the appellant.     The only evidence about this is P.W. 23 Upasrao, a water carrier.   He  speaks  of three meetings  and  is  curiously definite about days of the week and times though he did  not know  on what day of the week diwali fell nor could he  give the names of anybody else he met on those occasions.  Howev- er,  for what it is worth. he says he saw them  talking  (1) three  weeks before the murder, (v) on the 24th and  (3)  on the  25th.  They spoke in Punjabi which he does  not  under- stand, but on the second occasion he heard them mention  the name of Ramesh.  Two of these meetings, namely the first and the  third   tally with two of the only three  meetings  de- scribed in the confession. It is proved that the witness did not disclose these facts to the police but despite that  the Sessions  Judge believed him because of the confession.  The High Court appear to have disbelieved him, for in  paragraph 37  of the judgment the learned judges point out that he  is contradicted by his own statement to the police.  There  his story was that the three brothers met and not Gurubachan and the  appellant.  This evidence can therefore be  disregarded and  consequently  the confession cannot be  used  to  prove previous association.

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    It  was  argued however that if it is proved  that  the appellant helped in disposing of the body after the  murder, then their previous association can be inferred because  one would  hardly seek the assistance of a stranger for  a  task like  that. That has some force but the weakness of that  in this case lies on the fact that, 532 according  to  the  prosecution case, as  disclosed  in  the confession,  Gurubachan was a stranger to Gondia. i  He  had come there only six weeks before the murder and did not meet the appellant till three weeks later and then only casually. Their second meeting, equally casual, was on the 21st,  that is, five days before the murder, and on that date the appel- lant is said to have disclosed his intention to this strang- er whom he had only met once before. It is true this strang- er knew the appellant’s brother, but how ? The brother was a travelling ticket inspector on the railway and used to allow Gurubachan to travel without a ticket, presumably because he was  also a Sikh. If probabilities are to be called in  aid, the story disclosed in the confession has distinct weakness- es,  particularly  as  Gurubachan’s  assistance  was  wholly unnecessary.  If  the confession is true there  was  a  well thought out plot timed with the precision almost of a  minor military  operation. At a given moment the  nephew  Pritipal was  to  decoy  the deceased away from  his  companions  and isolate him.  Then, after leading him several hundred  yards down  the road, hand him over to Gurubachan. Gurubachan  was to take him down to point No. 6 on the map well over half  a mile from the spot where he took over from Pritipal.  In the meanwhile,  the appellant was to walk another half  mile  at right  angles to Gurubachan’s course to the point No. 15  to hire a cycle.  From there he was to cycle close on a mile to point No. 6 and meet Gurubachan and the boy.  As the learned High  Court Judges, who made a spot inspection,  point  out, the route would lie through a crowded bazaar locality.  From point  No.  6 Gurubachan was to hand over the child  to  the appellant  who was to cycle with him close on a mile to  his brother  Gurudayal’s  quarters, point No. 16,  through  this same  crowded bazaar.  In the meanwhile, Gurubachan  was  to walk  back to his house (No. 17) and pick up a chisel and  a piece  of wire for the purpose of the murder and rejoin  the appellant at Gurudayal’s house.  As will be seen, the timing would  have to be within fairly close tolerances.  Then,  at the murder itself, what 533 assistance did Gurubachan give ?  Nothing which a grown  man could  not easily have accomplished him-   self on  a  small helpless victim of five.  The appellant could  have  accomplished all this as easily  without  the,. assistance  of  Gurubachan, and equally Gurubachan,  a  mere hired  assassin, could have done it all himself without  the appellant  running the risk of drawing pointed attention  to himself as having been last seen in the company of the  boy. We  hold  that previous association of a  type  which  would induce two persons to associate together for the purposes of a murder is not established.       (2)  That  the deceased Ramesh was  in  the  Gurudwara about  9-30  or 10 in the morning of the 26th. This  is  not disputed.       (3) That Kashmira Singh who had gone to the  Gurudwara in the morning was absent between 11 A.M. and 12-45 P.M.     That  the appellant was at the Gurudwara in the  morning is  not disputed, in fact his case is that he was there  the entire  day. The evidence to prove that he left  it  between these hours consists of three persons: P.W. 30 Atmaram, P.W.

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35 Tilakchand and P.W. 5 Bisan.     The  prosecution  story is that the appellant  left  the Gurudwara about 11 A.M. to go to the shop of P.W. 5 Bisan to hire  a  cycle. He was first seen by P.W. 35  Tilakehand,  a wood stall keeper, at point No. 13, just near the Gurudwara. The  witness  places the time at about 10-30 or 11  A.M.  He says  he  saw him coming from the direction of  the  railway station and going past his stall.  Fifteen minutes later, he went past his stall again in the opposite direction, that is to say, towards the railway station which lies on his way to the cycle shop.     Next  comes P.W. 30 Atmaram He keeps a bookstall on  the broad gauge platform of the Gondia Railway Station. He  says he  saw the appellant coming from the bridge and  going  to- wards the Railway Police 69 534 Station  of all places in the world.  He came  near  ,enough the  witness  to wish him good day. He places ’the  time  at about 10-30 or 11.  The only comment we make on this witness is that he says he used to see the appellant at the  station almost  every  day and they used to greet each  other.   The possibility that the witness is mixing up this day with  one of  the  other days cannot be excluded. It  is  certainly  a matter  for comment that a would be murderer on his  way  to hire a cycle for the purpose and keep an assignment with his accomplice and victim should go out of his way and either go on to or very near the railway platform to greet a person he knows there and then walk away towards the police station of all places where the danger of recognition would be strong.      Next  there is P.W. 5 Bisan, the man in charge  of  the cycle shop. He speaks from his register and says the  appel- lant  hired a cycle from him on that day at 11-20  A.M.  and returned  it at 12-45 P.M.  The Sessions Judge and the  High Court lay great stress on this witness.     But  as against this is the evidence of Anupsingh  Bedi, D.W. 1, a respectable disinterested witness, who is a  resi- dent of Nagpur. He says he saw the appellant at the Gurudwa- ra  at  11 and again "about 11-45 A.M." The  sessions  Judge thought  he was interested because he admits he  reported  a complaint he had received from Gurudayalsingh, to the effect that the appellant was being harassed by the police and that they  threatened  to arrest ladies also,  to  the  Inspector General of Police and the Home Minister.  He explained  that as head of the Sikh community in that State he felt bound to pass on these complaints to the highest authorities. We  are unable  to regard this as disclosing interest.  There is  no suggestion  that  what  he did was improper and  we  are  of opinion  he did nothing more than any man of  responsibility in  his  position would have done. The High  Court  has  not criticised him. The learned Judges merely say that he may be mistaken as to the time; nor of course does he suggest  that he is giving more than a mere estimate.  All he 535 says  is  that, "It may have been about 11-45 A.M.  by  this time."       We  do  not think there is much in all  this.  Nobody, except  P.W. 5 Bisan, pretends to be exact and when  one  is guessing  at  the time several days after  the  event  there really is not much discrepancy between 11-20 and 11-45. Even if it was 11-45 there would still have been sufficient  time to  commit the murder. As two Courts have believed the  evi- dence  on this point without calling in aid the  confession, we are not prepared to depart from our usual rule  regarding concurrent  findings of fact.  We will therefore accept  the

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position  that the appellant was absent from  the  Gurudwara long  enough  to enable him to commit the murder.   We  will also  take into consideration the fact that he made a  false statement on this point when he said he was not away at all.    (4)  Disposal of the body. The rest of the evidence relates to the disposal of the body and  the only direct evidence connecting the appellant  with this,  apart from the confession, is that of Sannatrao  P.W. 14,  the rickshaw coolie.   He does not bring the  appellant into the picture till about midnight.  Now this coolie is  a very  shaky  witness.   We cannot but  note  the  remarkable series  of  coincidences which emerge  from  his  testimony. First,  he is not a rickshaw coolie at all.  He merely  hap- pened to hire a rickshaw that night, and he told the  police that this was the first time he had ever done that at  night after. a day’s work.  Next, he knew the appellant because he happened  to be a chowkidar in the Food Office at Gondia  at the same time that the appellant was there as a Food Inspec- tor.   But at the date of the incident neither was still  in service, so by a somewhat strange coincidence the  appellant happens  to hire, for the first time, this old co-worker  in the middle of the night who, in his turn, happened to  hire, also  for the first time at night, a rickshaw for  which  he had no licence. Next comes a still stranger coincidence.  He is taken to within a few paces of his own house and the body 536 is  dumped, in his presence, into a welt, a stone’s    throw from  where he lives.  Gurubachan tells us that  earlier  in the day, about 7 P.M., he (Gurubachan) had carried, unaided, the  "bedding" on his head for a distance which we know  was hail  to three quarters of a mile, namely  from  Gurudayal’s house  to the chowkidar’s hut.   Despite this, the  two  are said  to have engaged this rickshaw coolie to carry it  just hall a mile (a shorter distance) to the well and there  they threw  it  in in the man’s presence; and none  of  this  was disclosed to the police till a month later, namely the  17th of January, though the witness was present when the body was recovered  and  though he was questioned on  three  previous occasions.      We do not doubt that a rickshaw was used because  rick- shaw tracks were discovered by the well long before  anybody had suggested that a rickshaw had been used.  But we find it difficult  to resist the inference that this witness was  an accomplice so far as the disposal of the body was concerned. Consequently,  he  is in much the same category  so  far  as credibility  is concerned,   That brings us at once  to  the rule  that save in exceptional circumstances one  accomplice cannot be used to corroborate another, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one. We have therefore either to seek corrobo- ration  of a kind which will implicate the  appellant  apart from the confession or find strong reasons for using Guruba- chan’s  confession  for that purpose.   Of  course,  against Gurubachan there is no difficulty, but against the appellant the position is not as easy.     We  will  therefore examine the reliability  of  Guruba- chan’s confession against the appellant. Now there are  some glaring irregularities regarding this confession and  though it was safe for the Sessions Judge and the High Court to act on  it  as  against  Gurubachan because  he  adhered  to  it throughout the sessions trial despite his pleader’s  efforts to show the contrary, a very different position emerges when we come to the appellant. 537 The  first  point which emerges regarding this is  that  the

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confession was not made till the 25th of February 1950, that is to say, not until two months after the murder.     We  do not know when Gurubachan was  first  interrogated but  P.W. 42 Narayandas tells us that when he was  taken  to the  police station house at Gondia for interrogation  about the  1st  or 3rd January he saw Gurubachan  sitting  in  the police  lock up.  We do not know how long he was kept  there like this but it is evident that he was not there voluntari- ly,  at  any rate till the 1st or 3rd. because  the  Station Officer  P.W. 44 says that "until Gurubachan Singh  was  ar- rested he used to be allowed to go home." Also he says  that Gurubachan was interrogated several times and was confronted with Pritipal.     However,  eventually Gurubachan was allowed to  go  away and he went to Balaghat.  Then, on the 16th of February  the Station Officer P.W. 44 went to Balaghat, brought Gurubachan back  with him to Gondia and handed him over to  the  C.I.D. Inspector  Guha. Guha P.W. 50 tells us that from  then  till the  20th   of February, when he was arrested, he  was  kept under  observation but was allowed to go home at  night.  He did  not confess till the 25th and the Station Officer  P.W. 44  tells us that from the 20th to the 25th he was  kept  in one of the rooms in Guha’s quarters. Then, after the confes- sion  on the 25th he was taken back to Guha’s custody for  a couple of days and then only was he sent to the  magisterial lock up.  (See Guha’s evidence). He was kept in this lock up till  the conclusion of the committal proceedings, that  is, till the 30th of June, instead of being sent to jail custody in Bhandara where there is a jail. The other accused includ- ing Pritipal who had by then confessed were sent to  Bhanda- ra.     Now  though Gurubachan was kept in the magisterial  lock up  the  distinction  between the magisterial  lock  up  and police custody  in  Gondia  is  only 538 theoretical.   In  practice,  it is no  better  than  police custody.   Police  constable  Lalbahadur P.W.  55  tells  us that--     "The Station House Officer Gondia deputes constables for duty  in  the lock up.  The constables in  charge  take  the prisoners  out  to the latrine and also  arrange  for  their food...The Head Constable in fact is in charge."      Also,  Guha admits that he interrogated  Gurubachan  in the  lock up twice within the ten days which  succeeded  the confession.   This is in disregard of the Rules  and  Orders (Criminal) of the Nagpur High Court which enjoin at page 25, paragraph 84, of the 1948 edition that --     "After  a  prisoner  has made a confession  before  a  a magistrate he should ordinarily be committed to jail and the magistrate should note on the warrant for the information of the Superintendent of the jail that the prisoner has made  a confession."      No  explanation  has been given why  these  directions, which were made for good reason, were disregarded in Guruba- chan’s  case. As we have said, the other prisoners were  all committed to jail custody in the usual way, so there was  no difficulty  about  observing the rule.   All this  makes  it unsafe to disregard the rule about using accomplice testimo- ny as corroboration against a non-confessing accused.   None of  the  judges  who have handled this ease  has  given  any reason  why this rule could safely be departed from in  this particular  case. In the circumstances, we do not feel  that the  confession  by itself can be used  to  corroborate  the rickshaw  coolie  Sannatrao, P.W. 14.  But  there  is  other corroboration.  It consists of the sari border. and this  is

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the next point on which the prosecution relies.     There is one argument about this confession advanced  on behalf  of the appellant with which we shall have  to  deal. The  prosecution were criticised for not calling the  magis- trate who recorded the confession as a witness.  We wish  to endorse the remarks of their 539 Lordships  of  the Privy Council in Nazir   Ahrnad  v.  King Emperor  (1) regarding the undesirability of  such  a  prac- tice.  In our opinion, the magistrate was rightly not called and  it would have been improper   and undesirable  for  the prosecution to have acted otherwise.   (5) Sari borders, Articles F, G, and T. Articles  F & G are two pieces of a sari border  which  were used  for tying up the mouth of the gunny bag, in which  the body  was placed.  The evidence about that is beyond  doubt. Article T is another piece of a sari border which was  found in the appellant’s house on the 30th or December, 1949.   It is  true the appellant was not present at the time  but  his mother  was there and it will be seen that it was seized  on the same day that the body was discovered.   There is strong proof that Articles F and G are a part of the same border as Article  T, and as there is a concurrent  finding  regarding these facts we are not prepared to to take a different view. That  therefore  affords corroboration of  Sannatrao’s  evi- dence and the confession can be called in aid to lend assur- ance to the inference which arises from these facts,  namely that  the  appellant did help to dispose of the  body.   The High Court and the Sessions Judge were accordingly  entitled to  act  on this evidence for establishing  that  particular fact  and  we are not prepared to disturb  their  concurrent conclusions.   But  the  matter cannot  be  carried  further because,  not only are the sari borders not proved  to  have had any connection with the crime of murder but the  confes- sion shows that they did not. The only conclusion  permissi- ble on these facts is that the appellant, at some time which is unknown, subsequent to the murder assisted either active- ly  or  passively  in tying up the gunny bag  in  which  the corpse was placed and that he then accompanied Gurubachan in the  rickshaw  from the chowkidar’s hut to the well  in  the middle of the night.  (6) Coat, Article X, and Safa, Article Y, (1) A.I.R. 1936 P.C. 253 at 258, 540 These were seized on the 20th of January 1950  from a  trunk in  the  house of the  appellant’s  brother  Gurudayalsingh. The  appellant’s house is not in this neighbourhood.      It is some distance away in another part of the town.  The coat is  a uniform coat of the kind worn by a  Travelling  Ticket Inspector on the Railways.  Gurudayal is a travelling Ticket Inspector.  The appellant is not.  Here again the  appellant was not present when the seizures were made.    This  coat and safa were recovered in the fourth  search. The first search was on the 30th of December 1949.  The next on  the 10th of January 1950.  The third on the  morning  of the 20th and the fourth in the afternoon of the 20th.  These Articles were not found in the first three searches.     The  Chemical Examiner reports that there is one  minute blood stain on the safa and some (the number is not  given), also  minute,  on  the coat.  The seizure  memo,  Ex.  P-55, picked out only five.   Those stains are not proved to be of human blood.    Now there is next no evidence to connect either the  coat or  the safa with the appellant.  The High Court has  relied on  the  evidence of Sannatrao (P.W.  14),  Gokulprasad  the

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Station  Officer (P.W. 44) and Tiwari (P.W. 48).   Sannatrao does no more than say that he noticed the appellant  wearing a popat coloured sara and a black coat.  But he was not able to  describe  the clothes of the passenger  he  had  carried immediately  before  the appellant, nor was he able  to  de- scribe the appellant’s coat in detail.  That therefore is no identification of this coat with the one the appellant  wore or  owns.  The Station Officer Gokulprasad said that he  had seen  the appellant wear this very coat and sara and  there- fore  he identified them as his clothes.  In  cross-examina- tion  he  admitted that he had only seen  the  appellant  on three occasions but not to speak to.  Consequently, that  is not  strong  evidence of identification.  But  what  in  our opinion is almost conclusive against this identification  is that  Tiwari, P.W. 48, who is clearest on the point and  who of course had the best opportunities for observation, 541 gives a distinctive feature of the appellant’s coat,  namely that it had only one button.  That is one of his reasons for knowing  what the appellant used to wear.  But  the  seizure memo,  Ex.  P. 55, shows that the coat, Article X,  had  two buttons.   In the circumstances we find it difficult to  see how it can be the appellant’s coat.       There  is  another  strong point  in  the  appellant’s favour  which the High Court has not noticed.  P.W.  35  the wood stall keeper Tilakchand, who saw him on his way to pick up his victim, is definite that the appellant was not  wear- ing a coat at the time. It is difficult to see why he should have  donned a coat and got it stained with blood  just  for murdering  a  child of five.  In our opinion,  it  would  be unsafe  to conclude on this evidence that any connection  is established between the coat and the sara and the appellant. The  furthest point to which this evidence can be pushed  is to  indicate that the appellant possessed a coat similar  to Article X but which was not Article X.     We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two  very important  points  in  the accused’s favour  which,  in  our opinion,  swing the balance the other way, we are unable  to let  the finding stand.  In our opinion, the  nexus  between the appellant and the coat and the sara is not established.      (7) Motive. This is the last piece of evidence on which the  prosecution rely.   Both courts hold that the motive is established  and there is strong evidence to prove it. We accordingly  accept the  finding  that  the appellant had a  motive  for  enmity against Tiwari and that he had expressed a determination  to be  revenged.  The only comment we will make is  that  other persons  who  were also dismissed from service  had  similar motives.     What then is the summary of the evidence ? In the appel- lant’s favour there are the facts that there is no proof  of his having been last seen in the company of 70 542 the  deceased.  The only evidence of the boy’s movements  is that of Krishna (alias Billa) P.W. 9, a boy of seven  years, and  all he says is that Pritipal asked him to bring  Ramesh with  him  to the Gurudwara that morning about 9  A.M.   The boys  played about and had some tea and then  Pritipal  took Ramesh  away  in the direction of  the  prostitute’s  house. Pritipal later returned without Ramesh.  The Sessions  Judge thought this witness had been tutored on at least one point. Pritipal’s  so called confession has been rejected  because, in the first place, it is not a confession at all, for it is

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exculpatory,  and, in the next, the High Court was not  able to trust it.  Therefore, the only evidence of the boy’s last movements is as above.      The next point in the appellant’s favour is that he was seen without a coat shortly before the murder and at a  time when he was not in the vicinity of his own house.  According to  the prosecution, the murderer wore the coat, Article  X, and the sara, Article Y.      The  third point is that the appellant was not seen  by anyone in the vicinity of the place of occurrence.      The  fourth  point is that if the prosecution  case  is true,  then it is remarkable that no one saw  the  appellant and  the  boy on a cycle through nearly a mile of  what  the High  Court,  which made a spot inspection, describes  as  a crowded locality.      The  points against the appellant are (1)that he had  a motive  and that he said he would be revenged, (2)  that  he was  absent from the Gurudwara about the time of the  murder long enough to enable him to commit it, and denied the fact, (3)  that some twelve hours after the crime he  assisted  in removing  the body from a place between half to three  quar- ters of a mile distant from the scene of the crime, and  (4) that  at some unknown point of time he assisted in tying  up the mouth of the gunny bag in which the body was  eventually placed.   In our opinion,  it would be unsafe to convict  of murder on these facts. 543     A  number  of rulings were cited, including one  of  the Privy  Council,  and  it  was argued  that  in  those  cases persons were convicted of murder on similar facts. We do not intend  to examine them because no decision can be a.  guide on  facts. Each case has its own special  circumstances  and must  be decided on its own facts.  For example, in most  of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the  scene of  the crime. Here, twelve hours had elapsed and the  first connection proved with the disposal is at a place over  half a  mile  distant  from where the boy is said  to  have  been murdered.   Next, the points we have shown in favour of  the appellant in this case were not present there.     We allow the appeal on the charges of murder, conspiracy and  kidnapping  and reverse the findings and  sentences  on those  charges and acquit the appellant of them. We  however convict  the  appellant  of an offence  under  section  201, Indian Penal Code, and sentence him to seven years’ rigorous imprisonment.      The learned Sessions Judge omitted to record a  convic- tion under section 201 because he was convicting the  appel- lant  of murder.  He followed a Nagpur decision which  holds that  in such a case it would be improper to convict in  the alternative.  We express no opinion about that; the question does  not  arise as we have acquitted the appellant  of  the murder and the cognate charges.  The case now falls in  line with  that  of  the  Privy Council  in  Begu  v.  The  King- Emperor(1)  and the conviction and sentence are confined  to section 201. Agent for the appellant: Ganpat Rai. Agent for the respondent: P.A. Mehta. (1) (1925) 52 I.A. 191. 544