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PETITIONER: NASAR ALI

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 14/02/1957

BENCH:

ACT: First  in  formation report-Report made by  accused--Use  of Burden of Proof in criminal cases -Witness disbelieved as to Part of his testimony-Whether should be rejected in toto.

HEADNOTE: A  first  information report is not a substantive  piece  of evidence  and can only be used to corroborate the  statement of  the  maker  under  s. I57 Of  the  Evidence  Act  or  to contradict  it under S. 145 of that Act.  It cannot be  used as  evidence  against the maker at the trial if  he  himself becomes  an accused, nor to corroborate or contradict  other witnesses, It  is a cardinal principle of criminal  jurisprudence  that the  innocence  of  an  accused  person  is  presumed   till otherwise  proved.   It is the duty of  the  prosecution  to prove  the  guilt of the accused subject  to  any  statutory exception. The maxim falsus in uno, falsus in omnibus has not  received general acceptance in different jurisdictions in India,  nor has  it come to occupy the status of a rule of law.   It  is merely a rule of caution.  All that it amounts to is that in such cases the testimony may be disregarded and not that  it must  be  disregarded.   The doctrine  merely  involves  the question of weight of evidence which a court may apply in  a given set of circumstances but it is not a mandatory rule of evidence,

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 150  of 1956. Appeal  by special leave from the Judgment and  order  dated October 18, 1955, of the Allahabad High Court in  Government Appeal No. 60 of 1953 arising out of the judgment and  order dated  July  8,  1952, of the Court  of  Sessions  Judge  at Bareilly in Criminal Sessions Trial No. 27 of 1952. Daulat Ram Prem and P. C. Agarwala, for the appellant, 658 Gyan Chand Mathur and C. P. Lal, for the respondent. 1957.  February 14.  The Judgment of the Court was delivered by KAPUR J.-The appellant along with one Qudrat Ullah was tried for the murder of one Sabir.  The latter was tried under  s. 302 read with s. 114 of the Indian Penal Code for  abetment, and  the  former under s. 302 I.P.C. Both the  accused  were acquitted  by the learned Sessions Judge of  Bareilly.   But the State took an appeal to the Allahabad High Court against

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the appellant only and the judgment of acquittal in his case was  reversed and he was convicted under s. 302  I.P.C.  and sentenced   to  ’transportation  for  life’.   Against   the judgment  of the High Court the appellant has  brought  this appeal by Special Leave. The facts which have given rise to the appeal are that Sabir was murdered on the 11th May, 195 1, at about 6-30 p.m.  The First Information Report was made by Qudrat Ullah the  other accused  at  6-45 p.m. the same day, i.e., within  about  15 minutes  of the occurrence.  The prosecution case  was  that there was an exchange of abuses between the deceased and the appellant  near  the  shop of the  First  Informant,  Qudrat Ullah.  The cause of the quarrel was that on the evening  of the  occurrence while Qudrat Ullah was sitting in  his  shop and  the  deceased  was sitting just  below  the  shop,  the appellant  came  out  of his house and on  seeing  him,  the deceased asked him as to why he was in such a "  dishevelled condition ", which annoyed the appellant and gave rise to an exchange of abuses.  On hearing this noise, the  prosecution witnesses arrived at the spot and saw the appellant and  the deceased grappling with each other.  The appellant is stated to have asked Qudrat Ullah to hand over a knife to him which Qudrat  Ullah did; this knife is Ex.  I II’, with which  the appellant  stabbed  the deceased and then fled away.   As  a result  of  the injuries the deceased fell down  infront  of Qudrat Ullah’s shop; some witnesses have stated that he fell on  the  wooden plank in front of the  shop.   Qudrat  Ullah picked up the knife which had been 659 dropped by the appellant, put the deceased in a rickshaw and took  him to the hospital from where he went to  the  Police Station and made the First Information Report.  An objection has been taken to the admissibility of this report as it was made  by a person who was a co-accused. A First  Information Report is not a substantivepiece of evidence and can only be used to corroborate the statement of the maker under s.  157 of the Evidence Act or to contradict it under s. 145 of that Act. -It cannot be used as evidence against the maker at the trial  if he himself becomes an accused, nor to  corroborate or contradict other witnesses.  In this case, therefore,  it is not evidence. The  Sub-Inspector went to the spot,  started  investigation and  arrested the appellant the same evening at  his  house. The  postmortem examination of the deceased showed  injuries on the person of the deceased and, according to the doctor., death  was  due to shock and haemorrhage on account  of  the punctured wound in the chest, causing injuries to the  lungs and  these  injuries  could be  caused  with  a  sharp-edged weapon. The  appellant  and the deceased both belong to  a  sect  of Jogis.   Evidence  discloses  that  the  deceased  and   the appellant  were quite friendly with each other, and so  were the  deceased and Qudrat Ullah, who is a butcher and  had  a shop which is a part of his house.  Adjacent to the shop  is the house of the appellant.  Eye witnesses of the occurrence were  Yad Ali, P.W. 1, Banne, P.W. 2 and Mohd.  Ahmed,  P.W. 3. Having been told by the sister of the deceased as to  the occurrence, Ashraft, P.W. 4 came to the spot later and found the  deceased  lying unconscious.  Shakir, P.W.  5,  younger brother of the deceased, on arriving near the shop of Qudrat Ullah  heard  the  appellant  and  the  deceased  exchanging abuses,  but  was not a witness of the assault’ as  just  at that  time he had gone, at the request of Qudrat  Ullah,  to fill  his  Chillum for the hookka and when he came  back  he found  the  deceased  lying unconscious  and  the  appellant

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running away towards his house. The  evidence  of  Yad  Ali P. W. 1, is  that  he  heard  an exchange  of abuses between the deceased and  the  appellant and when he moved about 4 or 5 paces he 660 saw  them grappling with each other.  The appellant had  the deceased ,in his grip", he asked Qudrat Ullah to hand over a knife to him which the latter did and with it the  appellant stabbed  the deceased and then went away to his house.   The statement  of  Banne is similar and so is the  statement  of Mohd.  Ahmed, P. W. 3. This evidence was not accepted by the learned  Sessions Judge and he acquitted both  the  accused. The  State took an appeal only against the  appellant  which was  allowed  by the High Court.  It held " We  may  concede that the eye-witnesses have falsely implicated Qudrat  Ullah by deposing that he handed over his knife to the  respondent on  his demand.  There was no enmity between him  and  Sabir and  he bad no motive to get him killed by  the  respondent. It  does not at all appear probable that after abetting  the murder  of  Sabir he at once took him on a rickshaw  to  the hospital  and from there went at once to the police  station and lodged a report against the respondent.  This conduct of Qudrat  Ullah is so inconsistent with the part said to  have been  played  by him in the occurrence that we  have  little hesitation  in rejecting the evidence about the part  played by him." The High Court, however, accepted the. testimony of the eye- witnesses as against the appellant’s guilt and observed: "We are satisfied that the prosecution has fully established the,  case  against  the  respondent.   There  is  not   the slightest  doubt  about  his  guilt.   The  presumption   of innocence  has been fully rebutted by the prosecution.   The case against him does not become doubtful merely because the learned Sessions Judge said that there was a doubt about his guilt." The learned Judges also came to the conclusion  that the  view taken by the learned trial Judge was ;one "  which no  reasonable  person could have taken.  It  was  a  wholly erroneous  view of the evidence which has resulted in  gross miscarriage  of  justice  inasmuch  as  a  murderer  escapes punishment",.    In  the  circumstances  of  the  case   and considering that there was some provocation, the High  Court sentenced the appellant to I transportation for life. 661 There  is a passage in the Judgment of the High Court  which appears  to us to be disconsolate and indicative of a  wrong approach  in  deciding  the  guilt  of  an  accused  person. Although  the learned Judges recognised the  principle  that the onus was not on the accused, yet one of the observations is  such  that  it comes perilously near to  putting  -  the burden  on the accused if it does not actually do  so.   The High Court has said: The respondent himself did not have the courage to say  that he did not find them at the spot.  If ’he were innocent,  he must have come out -of his house immediately on hearing  the noise and must have known who was present there and; who was not" This passage is so destructive of the cardinal principle  of criminal  jurisprudence as to the presumed innocence  of  an accused  person  till otherwise proved that  it  has  become necessary   to   reiterate  the  rule  stated   by   eminent authorities  "...... that it is the duty of the  prosecution to  prove  the  prisoner’s guilt subject  to  any  statutory exception." it  was  next  contended  that  the  witnesses  had  falsely implicated Qudrat Ullah and because of that the Court should

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have  rejected the testimony of these witnesses  as  against the  appellant  also.  The well-known maxim  falsus  in  uno falsus  in  omnibus was relied upon by the  appellant.   The argument raised was that because the witnesses who had -also deposed  against Qudrat Ullah by saying that he  had  handed over the knife to the appellant had not been believed by the Courts below as against him, the High Court should not  have accepted  the  evidence of these witnesses  to  convict  the appellant.   This maxim has not received general  acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law.  It is merely a  rule of  caution.  All that it amounts to is that in  such  cases the  testimony  may be disregarded and not that it  must  be disregarded.  One American author has stated: (1)  Woolmington  v.  The Director of  Public  Prosecutions, 1935 A. C. 462. 662        SUPREME COURT REPORTS                   [1957] validity............  and  secondly,  in  point  of  utility because  it merely tells the jury what they may do  in  any, event, not what they must do or must not do, and  therefore, it  is a superfluous form of words.  It is also in  practice pernicious.......... " (1) The  doctrine  merely  involves the question  of  weight  of evidence  which  a  court  may  apply  in  a  given  set  of circumstances but it is not what may be called " a mandatory rule of evidence ".  Counsel  for the appellant drew our attention to a  passage from  an  unreported  judgment  of  the  Privy  Council,   I Chaubarja Singh v. Bhuneshwari Prasal Pal. "  The  defendants own evidence and that of several  of  his witnesses is of no use to, him.  He cannot contend that  any court  of law can place reliance on the oath of  people  who have admittedly given false evidence upon the other branches of the case." This  passage is a very slender foundation, if at  all,  for conferring  on  the doctrine the status of  anything  higher than a rule of caution and the Privy Council cannot be  said to   have   given  their  weighty  approval  to   any   such controversial  rule which has been termed as  "  worthless", "absolutely  false  as  a maxim of life"  and  "in  practice pernicious"  in works of undoubted authority on the  law  of evidence (2). The  High  Court  was not unmindful of  what  the  witnesses stated  as to Qudrat Ullah’s part in the commission  of  the offence and having taken that into consideration, it said: "  While the learned Sessions Judge was right in  acquitting Qudrat  Ullah,  he was completely wrong  in  acquitting  the respondent of whose guilt there was not the slightest doubt. The  direct evidence made out a clear case against  him  and there was no sound reason for disregarding it." After  discussing  the  evidence of the  witnesses  and  the discrepancies  pointed out by the appellant the  High  Court held " there is not the slightest doubt about his guilt." (1) Wigmore on Evidence Vol.  III para 1009. (2j Wigmere Vol.  III para 1009. 663 It  was  because  of the above  two  contentions  raised  by counsel  for  the  appellant and because it was  a  case  of reversal of a judgment of acquittal that we allowed  counsel to  go  into  the evidence which he analysed  and  drew  our attention  to its salient features and to the  discrepancies in  the statements of witnesses and the  improbabilities  of the case; but we are satisfied that the learned Judges  were justified in coming to the conclusion they did and the  view of the trial judge was rightly displaced.  Upon a review  of

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the  evidence of the prosecution witnesses we have come  ,to the conclusion that the appellant was rightly convicted. The appeal is, therefore, dismissed and the judgment of  the High Court is affirmed. A appeal dismissed.