22 October 1954
Supreme Court


Case number: Appeal (crl.) 4 of 1954






DATE OF JUDGMENT: 22/10/1954


CITATION:  1955 AIR  104            1955 SCR  (1) 903

ACT: Code  of Criminal Procedure (Act V of 1898), S.  162-Whether applicable to investigations under the City of Bombay Police Act  (Bombay Act IV of 1902) prior to its repeal  by  Bombay Act  XXII of 1951-Evidence relating to  test  identification parades-  Whether  and under what  circumstances  admissible under s. 162 of the Code of Criminal Procedure. Indian  Evidence  Act  (I of  1872),  s.  27--Evidence  that discovery  was made "in consequence of information given  by the  accused" or " at the instance of the accused",  whether admissible,  when  the admissible part  of  the  information given is not sought to be proved. Code  of Criminal Procedure (Act V of 1898), ss.  297,  298, 537  Charge  to the Jury-Duty  of  Judge-Misdirection-Effect of-Indian  Evidence  Act  (I  of  1872),  s.   167--Improper admission   or  rejection  of  evidence-Effect  of-Duty   of Appellate Court in hearing appeal.

HEADNOTE: Investigation  in this case was started on the  20th  April, 1951, under the City of Bombay Police Act (Bombay Act IV  of 1902),  the provisions of the-, Code of  Criminal  Procedure being  then inapplicable to Bombay City Police by virtue  of s.  I  (2)(a) of the Code.  In 1951, the Bombay  Police  Act (Bombay  Act  XXII of 1951) was passed by  ’which  both  the Bombay Act IV of 1902 and the provision in s. 1(2)(a) of the Code  of  Criminal Procedure in so far as it made  the  Code inapplicable to Bombay City Police. were repealed.  This Act came into force on 1st August, 1951, and after that date the provisions   of  the  Code  of  Criminal  Procedure   became applicable to investigations by the Bombay City Police. Under s. 63 of the City of Bombay Police Act (Bombay Act  IV of 1902), no statement made by a person to a Police  Officer during  investigation,  reduced to writing, may be  need  in evidence,  while  under  s.  162 of  the  Code  of  Criminal Procedure the ban applies also to oral statements made to  a Police Officer during investigation, not reduced to writing. Held,  that s. 162 of the Code of Criminal Procedure by  its very context and terms, applied to investigations  conducted under  Chapter  XIV  of  the Code,  and  could  not  operate retrospectively and apply to investigations conducted  prior



to 1st August, 1951, by the Bombay City Police, as they were not investigations conducted under Chapter XIV of the  Code. The test identification parades in regard to accused I and 2 having  been held prior to the 1st August, 1951, s.  162  of the Code did not apply to the evidence 904 received in regard to these parades, but the section applied to the evidence relating to the test identification  parades in regard to accused 4 as these were held after 1st  August, 1951. Banwari  Gope  v. Emperor (A.I.R. 1943 Patna 18)  and  Delhi Cloth  Mills v. Income-tax Commissioner, Delhi (A.I.R.  1927 P.C. 242), referred to. The  purpose  of  identification  parades  being  to  enable witnesses to identify the properties involved or the persons concerned  in  the  offence under  investigation,  the  very process  of  identification  involves  a  statement  by  the identifying  witness that the particular property or  person identified was concerned in the offence.  This statement may be express or implied.  Such a statement, whether express or implied,  including  signs and gestures, would amount  to  a communication   of  the  fact  of  identification   by   the identifier to another person, and where the  identifications are held in the presence of the Police, such  communications are  tantamount to statements made by the identifiers  to  a Police  Officer  in  the course of  investigation  and  come within the ban of s. 162 of the Code.  The physical fact  of identification  has  no separate existence  apart  from  the statement  involved in the very process  of  identification, and in so far as a Police Officer seeks to prove the fact of such  identification,  such evidence would  be  inadmissible under  s.  162  of the Code, the only  exception  being  the evidence  sought  to be given by the identifier  himself  in regard to his mental act of identification which he would be entitled  to give by way of corroboration of  his  identifi- cation of the accused at the trial. Where  the Police Officers arrange the parade,  produce  the parsons  who  are  to  be mixed up  with  the  accused,  and withdraw,  leaving the actual parade solely and  exclusively in   charge   of  Panch  witnesses,  and  the   process   of identification is carried out under the exclusive  direction and  supervision  of  the Panch  witnesses,  the  statements involved  in the process of identification would  be  state- ments  made  by the identifiers to the Panch  witnesses  and would be outside the purview of s. 162 of the Code. Khabiruddin  v.  Emperor (A.I.R. 1943  Cal.  644);  Surendra Dinda  v. Emperor (A.I.R. 1949 Cal. 514) ; and Daryoo  Singh v. State (A.I.R. 1952 All. 59), approved.  In re Kshatri Ram Singh  (A.I.R. 1941 Mad. 675); Guruswami Thevan  v.  Emperor (1936  M  W.N. 177) and Bamdhin Brahmin v.  Emperor  (A.I.R. 1929 Nag. 36), disapproved. Rao  Shiv Bahadur Singh v. State of Vindhya Pradesh  ([1954] S.C.R.  1098) and Abdul Kader v. Emperor (A.I.R.  1946  Cal. 452), referred to. Per  JAGANNADHADASJ.-Differentiation between the evidence of a Police Officer and that of Panch witnesses and identifying witnesses relating to the fact of prior identification in  a parade held by a Police Officer on the ground of the  latter being  corroborative evidence, is unsound and  inadmissible, and the evidence of the 905 Panch  witnesses and identifying witnesses relating  to  the fact  of prior identification would be inadmissible even  as corroborative evidence. Section  27 of the Indian Evidence Act is based on the  view



that  if  a fact is actually discovered  in  consequence  of information  given, some guarantee is afforded thereby  that the  information  was  true and accordingly  can  be  safely allowed to be given in evidence.  But clearly the extent  of the  information admissible must depend on the exact  nature of the fact discovered to which such information is required to relate. Kottaya v. Emperor (A.I.R. 1947 P.O. 67), referred to. Where evidence was given by a Police Officer that "in conse- quence  of a certain statement made by the accused" and  "at the instance of the accused", a tin box was dug out of a mud house,  and the nature of the statement made or  information given by the accused was not sought to be proved, s. 27  was not  attracted and prima facie there was nothing to  prevent the evidence being admitted against the accused concerned. Durlav  Namasudra v. -Emperor ([1931] I.L.R. 59 Cal.  1040), referred to. Per  JAGANNADHADAS  J.-There is considerable  force  in  the objection  that when a Police Officer speaks to a  discovery being  made  "at  the  instance  of  the  accused"  or   "in consequence  of  information  given  by  the  accused",  the prosecution  cannot  be permitted to rely on  such  evidence without placing the admissible portion of the information on record.   The  information given by the accused  in  such  a situation  may be such as, on scrutiny, might show only  his remote connection and not direct connection with the objects recovered.   In such a situation, evidence of the bare  fact of   information  having  been  given  may   cause   serious prejudice. Summing up to the Jury does not mean merely giving a summary of the evidence.  The Judge should marshall the evidence  so as to bring out the lights and the shades, the probabilities and improbabilities, so as to give proper assistance to  the Jury who are to decide which view of the facts is true.  The charge  should not consist of along rambling  repetition  of the  evidence,  without any attempt to  marshall  the  facts under  appropriate heads, or to assist the Jury to sift  and weigh  the  evidence so that they may be in A.  position  to understand  which  are  the really important  parts  of  the evidence and which are of secondary importance. Ilu v. Emperor (A.I.R. 1934 Cal. 847) and Nabi Khan v.  King Emperor (A.I.R. 1936 Cal. 186), referred to. Held,  that as regards accused 4 there had been an error  of law in admitting evidence of the test identification parades relating  to  him.   The  admission  of  such   inadmissible evidence would amount to a misdirection; but misdirection by itself  would not be a ground for reversal under a.  537  of the  Code unless such misdirection had in fact occasioned  a failure of justice, nor is reception 906 of   evidence  inadmissible  under  s.  162  of  the   ’Code necessarily  fatal.  The Appellate Court has to see  whether the  reception of inadmissible evidence influenced the  mind of  the  Jury so seriously as to lead them to  a  conclusion which might have been different but for its reception.  What the Appellate Court should do is to exclude the inadmissible evidence from the record and consider whether the balance of evidence  is  sufficient to maintain  the  conviction.   The Court   of   Appeal  should  take  the   whole   case   into consideration  and determine for itself whether the  verdict of the Jury was justified or whether there had in fact  been a  failure of justice.  The Court of Appeal is  entitled  to substitute its own verdict for the verdict of the Jury if on examining  the record for itself it comes to the  conclusion that the verdict of the Jury was erroneous or that there had



been a failure of justice in the sense that a guilty man has been acquitted or an innocent man his been convicted. Abdul Rahim v. King Emperor ((1946) L.R. 73 I.A. 77, Mushtaq Hussain  v.  State  of Bombay ([19531 S.C.R.  809),  Ilu  v. Emperor (A.I.R. 1934 Cal, 847); Nabi Khan v. Emperor (A.I.R. 1936  Cal.  186); Khabiruddin v. Emperor (A.I.R.  1943  Cal. 644) ; Surendra Dinda v. Emperor (A.I.R. 1949 Cal. 514)  and Mathews v. Emperor (A.I.R. 1940 Lahore 87), referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 4, 23 and 28 of 1954. Appeal by Special Leave granted by the Supreme Court by  its Order  dated the 2nd April, 1953, from the Order  dated  the 12th  January,  1953,  of the High Court  of  Judicature  at Bombay in Criminal Appeal No. 22 of 1953, arising out of the Judgment and Order dated the 6th October, 1952, of the Court of Sessions Judge, Greater Bombay, in Case No. 20 of 1952. A.   K.  Basu (J.  B. Dadachanji and Naunit Lal,  with  him) for the appellant in Criminal Appeal No. 4 of 1954. T.   Godiwala  and  B. P. Maheswhari for  the  appellant  in Criminal Appeal No. 23 of 1954. Jai  Gopal  Sethi (B.  P. Maheshwari and T.  Godiwala,  with him) for the appellant in Criminal Appeal No. 28. M.   C. Setalvad, Attorney-General for India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent. 1954.October  22.  The Judgment of Bhagwati and  Venkatarama Ayyar  JJ.  was delivered by Bhagwati  J.  Jagannadhadas  J. delivered a separate Judgment. 907 BHAGWATI  J.-Anokhelal Ranjit Singh, original accused I  and appellant  in  Criminal  Appeal No. 28  of  1954,  Harnarain Nanakchand,  original  accused 2 and appellant  in  Criminal Appeal  No.  23  of 1954  and  Ramkishan  Mithanlal  Sharma, original accused 4 and appellant in Criminal Appeal No. 4 of 1954,  along with- one Rubidas Radhelal, original accused  3 since  deceased and one Bankelal Devisingh still  absconding were charged under section 397 read with section 395 of  the Indian  Penal  Code with having committed dacoity  and  used deadly  weapons at the time of committing the same and  were also charged under section 396 of the Indian Penal Code with having committed the murder of Lawrence Quadros at the  same time  and  place and in the course of the  same  transaction while  committing  the  said dacoity.  The  trial  was  held before the Sessions Joe for Greater Bombay with the aid of a special  jury.   The  jury returned  unanimous  verdicts  of guilty against each of the accused and the learned  Sessions Judge   convicted  them  and  sentenced  each  of  them   to transportation  for  life.  An appeal filed by them  to  the High Court of Judicature at Bombay was summarily  dismissed. Special  leave was granted to them to appeal to  this  Court and  these three special leave appeals have now come on  for hearing and final disposal before us.  The  prosecution  alleged that the Lloyds Bank Ltd.  had  a branch situated at Hornby Road and had three entrances,  the main  one on Hornby Road and two others on Outram  Road  and Bastion  Road.  It was customary for the Bank to  send  cash from  time  to time to the Reserve Bank  whenever  the  Head Cashier thought that there was a surplus.  On a day previous to the day when cash was to be sent, the Head Cashier  would give  the  currency notes to the Assistant Cashiers.   As  a token of having checked up the notes each of the  Assistant: Cashiers  would  put  their signatures on the  top  and  the



bottom  notes  in a bundle containing 100 notes of  Rs.  100 each, and would affix thereon the rubber stamp of the  Bank. These  notes  then  would be tied up in what  are  known  as "thappis"  each  "thappi" consisting of 10  bundles  of  100 notes  each.   On the day that the cash was to  be  sent  an escort party would go to the 908 Reserve  Bank  with  the cash consisting  of  two  Assistant Cashiers,  one European Officer and a peon.   The  Assistant Cashiers  would then put the cash into a leather  bag  which bag would be attached by an iron chain to the person of  the peon.   The  Lloyds  Bank it appears had  received  a  large deposit from the Bank of Iran a few days prior to the day in question  and it was decided that an amount of Rs. 12  lakhs should  be  sent to the Reserve Bank of India  on  the  20th April, 1951. In the morning of the 20th April, the escort party consisted of  Brightling, Sarkari and Doctor and the peon Rama  Madura and taxi No. BMT 1829 was summoned to carry the party to the Reserve  Bank.  The escort party emerged from the rear  door of  the Bank and went up to the taxi.  Bala Gopal  Kadam,  a watchman,  was  on duty on Bastion Road.   When  the  escort party  came out, the taxi’s bonnet was in the  direction  of the  Empire Cinema and the driver Lawrence Quardros  was  at the  driver’s seat.  Brightling got into the taxi first  and took  his  seat on the rear seat and was  followed  by  Rama Madura.  Sarkari went round in front and took his seat  next to  the  taxi driver.  Rama Madura after entering  the  taxi placed the bag on the taxi’s floor and was about to take his seat.   Doctor was standing with his left hand on  the  rear door of the taxi on the Bank side waiting for Rama Madura to take  his seat.  It was at this juncture that accused  1,  2 and 4, Rubidas and Bankelal attacked the taxi and the escort party.  One of these persons first wrenched open the door to the taxi driver’s seat, leaned inside and fired twice with a revolver.   One of these shots caused an injury to  Lawrence Quadros  near the collar bone, which almost  instantaneously caused his death and his body came out with the head  first. The  man who so shot after leaning into the taxi went  round the front of the taxi and took his seat next to the driver’s seat.  There was another man behind this one when the driver was  shot, and he pulled out Lawrence Quadros from the  taxi and  took  his  seat at the steering wheel.   That  man  was Rubidas-one  time  a motor driver in the employ of  the  Pan American  Airways  at Delhi.  Accused I also  Armed  with  a revolver stood on the road side of the 909 taxi and fired twice at the taxi from that side and  accused 2  and  4 were, either at the back or on the Bank  side  and were also armed with revolvers.  Sarkari first thought  that these  shots were tyre-bursts and naturally got out  of  his seat  to  inspect  the tyres but hearing  further  shots  he realised  that an attempt was being made to loot  the  cash. He got frightened and went in the direction of Outram  Road. Brightling got out of the taxi, first went a little  towards the  back  of  the taxi and then seeing that  the  taxi  was surrounded,  zigzagged  and  went towards  the  junction  of Outram  and Bastion Roads where he tried  unsuccessfully  to stop  a passing car.  Accused 1 who was firing at  the  taxi came  near it, opened the back door of the taxi on the  road side  with  his shoulder and got into the taxi.   Accused  2 came towards the rear door of the taxi on the Bank side  and fired at Doctor injuring him on the dorsum of his left palm. Kadam  at about this time raised his baton,  realising  that Doctor was in danger whereupon accused 2 shouted "Khabardar,



chhod do chale jao, bhago" or words to that effect and  shot at him injuring him in his right eye.  That injury  resulted in the total loss of his right eye.  Both the accused 2  and 4  were armed with revolvers.  A driver by name  Sarvarkhan, was  sitting on the foot-path near the taxi and seeing  :the body  of Lawrence Quadros falling out of the taxi ’he  tried to  go up to him but the accused 4 prevented him from  doing so  shouting at him "khabardar" and threatened him with  his revolver." During the course of the attack someone of  these men shot at Rama Madura.  Rama Madura became unconscious and accused  2 and another dragged him out from the  taxi.   The taxi  was then started whereupon Brightling, who was  still. on Bastion Road, after making signals to the Cash Department to show as to what was taking place picked up a motor  cycle parked  near the corner of the Parsi  Lying-in-Hospital  and threw it in the way of the taxi but Rubidas, who was driving that  taxi, managed to drive it away.  The taxi however  had to be first driven at a slow speed and one Major Casey,  who was standing at the corner of the foot-path saw the whole of the incident and also those inside the taxi when it was 910 driven past him.  The prosecution alleged that accused 1,  2 and  4,  Rubidas and Bankelal surrounded and  ,attacked  the taxi  and its inmates and after snatching away the bag  tied to Rama Madura’s belt with the cash containing Rs. 12  lakhs drove  away  in  that  taxi.   Brightling  and  some   other employees  of the Bank after some time secured a  car  which was  parked nearby and went round in search of the taxi  but to  no purpose.  Brightling then reported the matter to  the Esplanade  Police  Station  but before  that  the  telephone operator  of  the  Bank, Mrs. Paterson who  with  Miss  Vida Palmer,  a clerk, had seen the incident from the  window  on the mezzanine floor had telephoned to the police and several police  officers arrived at the Bank soon  after.   Lawrence Quadros  was  already  dead and his body  was  sent  to  the ’morgue.   Doctor, Kadam and Rama Madura, who had  all  been injured, were sent to St. George’s Hospital.  The taxi which was  driven  away by Rubidas with the accused  and  Bankelal seated  therein was found abandoned at about 1-30  P.m.,  on that very day by the police not far from the Kashmir Hotel. The  police  made  various efforts to trace  accused  4  and Bankelal  but  were unable to find them and  they  therefore charge-sheeted  accused 1, 2 and Rubidas (who  was  original accused 3) and they were all committed to stand their  trial in  the Sessions Court.  After those proceedings  were  over the  accused 4 was arrested on the 25th December, at  Bareli Station, and he too was charge-sheeted and was committed  to Sessions.  Rubidas, the original accused 3, died on the  3rd August, 1952, with the result that accused 1, 2 and 4  stood their  trial on the charges under section, 395, 397 and  396 of the Indian Penal Code. The  defence  of the accused 1, 2 and 4 was  that  they  had nothing to do with the incident in question which took place in  the morning of the 20th April, 1951.   Though  conceding that they had been in Bombay, accused 1 and 4 contended that accused  I had left Bombay on the night of the  18th  April, and  accused  4 had left Bombay either on the 16th  or  17th April,  for Allahabad, that they were not in Bombay ’on  the day in question but were in Allahabad where they had filed 911 two affidavits before one Tondon, the first class Magistrate at Allahabad.  Accused 2 also conceded that he had stayed in Astoria Hotel with the accused 4 but, he had left that hotel on the 18th April, and had gone to stay in Kashmir Hotel  on that  day and had stayed there until the night of  the  20th



April, when he left Bombay for Delhi.  His case was that  he had come to Bombay to make purchases for his wedding and his business and that he had nothing to do with the incident  in question. Before  the learned Sessions Judge the prosecution  led  the evidence of various witnesses.  That evidence may be grouped into  three heads.  One part of the evidence related to  the movements and the activities of the accused before the  20th April,  1951, the other part of the evidence related to  the actual participation of the accused in the occurrence  which took place at Bastion Road on the morning of the 20th April, between  10-30  and  10-45 A.M., and the last  part  of  the evidence  related  to the subsequent  events  including  the arrest and the identification of the accused, the recoveries of  the  tin  box  containing the  revolvers  and  the  live cartridges,  the  steel trunk containing six  ’thappis’  and five bundles of 100 rupee notes and disbursements of cash by the  accused towards the end of April, or the  beginning  of May.  The accused were represented by counsel and  searching and  vigorous  cross-examination was addressed  to  all  the prosecution  witnesses.  The trial took  considerable  time. The  counsel  addressed  the special  jury  at  considerable length  and the learned Sessions Judge summed up  the  whole case  to the special jury in a charge which  took  well-nigh three days.  It was a very exhaustive and a fair charge  and in  several  respects  was favorable to  the  accused.   The learned  Judge summed up the evidence which had been led  by the  prosecution,  pointed  out  the  defects  as  also  the contradictions  in. the evidence of the  several  witnesses, administered the necessary warning in regard to the evidence of the identification parades, considered the cases of  each of  the accused separately and marshaled the evidence  which had  been  led by the prosecution against each of  them  and fairly put to the jury the 912 questions  which  they had to determine  before  they  could arrive  at  their verdict.  The jury took time  to  consider their  verdict  and  returned  as  stated  above   unanimous verdicts  of  guilty against all the accused in  respect  of both the charges. This  being  a  trial by jury the  appellants  in  order  to succeed  would  have to establish that  there  were  serious misdirections  or  non-directions  in  the  learned  Judge’s charge  to the jury such as would vitiate the verdict.   The main  contentions which were urged before us by the  learned counsel for the appellants were (1)That  evidence  inadmissible  under section  162  of  the Criminal  Procedure Code and under section 27 of the  Indian Evidence Act had been admitted and that therefore there  was an  error  of law which amounted to a  misdirection  to  the jury; and (2)That  there  were misdirections in  the  learned  Judge’s charge  to the jury which had the effect of  misleading  the jury  or  were  in any event such as to  render  the  charge unfair  and  prejudicial  to the  accused,  thus  causing  a failure of justice. The  admission of inadmissible evidence was attacked on  two counts: ---- (1)That  the evidence in regard to the  test  identification parades  held at the instance of the police and under  their active  supervision was hit by section 162 of  the  Criminal Procedure Code; and (2)That the statement of the police officer that it was ’tat the  instance of" or "in consequence of  certain  -statement by"  the accused that certain discoveries were made was  hit



by section 27 of the Indian Evidence Act. The  investigation  in  this case was started  on  the  20th April,  1951, and the Bombay City Police were then  governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act IV of 1902).  Section 63 of that Act provided :- "(1) No statement made by any person to a police officer  in the  course  of an investigation under this  Act  shall,  if taken down in writing, be signed by the person making it nor shall such writing be used as evidence. 913 There  was  a  proviso to that section  which  enabled  such statements  to be used by the accused to impeach the  credit of  such  witness  in  the manner  provided  by  the  Indian Evidence Act, 1872.  It may be noted that under section 1(2) (a) of the Criminal Procedure Code the Code did not apply to the police in the towns of Calcutta and Bombay and therefore section   162  of  the  Criminal  Procedure  Code  was   not applicable  to  the investigations made by the  Bombay  City Police.   On  the  11th June, 1951,  the  State  Legislature passed  the  Bombay Police Act (Bombay Act  XXII  of  1951). Section 167(3) of that Act repealed section 1(2) (a) of  the Criminal Procedure Code so far as the police in the town  of Bombay  were  concerned with the result that when  this  Act came  into operation with effect from the 1st August,  1951, the Bombay City Police were also governed by the  provisions of Criminal Procedure Code thus bringing into operation  the provisions  of  section 162 thereof  in  the  investigations conducted by the Bombay City Police.  Section 162(1) of  the Criminal Procedure Code provides:- "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 investigation at the time when such statement was made." There  is  a proviso to this sub-section which  enables  the accused to use such statements to contradict such  witnesses in the manner provided by section 145 of the Indian Evidence Act.  The investigations conducted by the Bombay City Police were  after  the  1st  August,  1951,  assimilated  to   the investigations  conducted by the police under  the  Criminal Procedure Code and oral statements made by persons to police officers in the course of the investigation also came within the  ban  of’  section 162 and could not  be  used  for  any purpose  save  that  specified in  the  proviso  to  section 162(1). 914 The  provisions  of section 162  applied  to  investigations conducted  by the Bombay City Police from and after the  1st August,  1951.  They applied to investigations  "under  this chapter", i.e., investigations conducted under the  Criminal Procedure  Code, and therefore prima focie did not apply  to the investigations conducted by the Bombay City Police prior to  the  1st August, 1951, in which case section 63  of  the City of Bombay Police Act IV of 1902 was applicable.  It was however  contended  on behalf of the  appellants  that  this section was a procedural one, that nobody had a vested right in  any course of procedure, that alterations  in  procedure were  to be retrospective unless there was some good  reason against   it  or  unless  that  construction  be   textually ’inadmissible  [vide Banwars’ Gope v. Emperor(1)  and  Delhi



Cloth  Mills v. Incometax Commissioner, Delhi(1)], that  the ban under section 162 was operative when evidence in  regard to  the  test  identification parades  was  led  before  the learned  Sessions Judge and that therefore all  evidence  in regard to these test identification parades whether they had been  held  before  or after the 1 st  August,  195  1,  was inadmissible.   It  was contended on the other hand  by  the learned  Attorney-General for the respondents  that  section 167(2) of the Bombay Police Act XXII of 1951 saved by clause (b)  thereof any right, privilege, obligation  or  liability already  acquired, accrued or incurred before such date  and by clause (d) thereof any investigation, legal proceeding or remedy  in  respect of such  right,  privilege,  obligation, liability,  penalty,  forfeiture  or  punishment  and   that therefore  the  investigation  which had been  made  by  the police under the provisions of the City of Bombay Police Act IV  of  1902 was saved and did not come within  the  ban  of section  162  of the Criminal Procedure  Code.   Both  these contentions  are untenable.  Section 167(2)could only  apply to  those  rights, privileges, obligations  or’  liabilities already  acquired,  accrued or incurred under  the  City  of Bombay Police Act IV of 1902 before the date of its  repeal. An   investigation  conducted  by  the  police   under   the provisions of that Act would not (1) A.I.R. 1943 Pat. 18. (2) A.I.R. 1927 P.C. 242. 915 create  or  impose  any  right,  privilege,  obligation   or liability which could be saved by the provisions of  section 167  (2)  of  the  Bombay Police  Act  XXII  of  1951.   The investigation which bad been conducted up to the 1st August, 1951, would be governed by the provisions of City of  Bombay Police Act IV of 1902 and unless there was something in  the Bombay  Police  Act  XXII of 1951 which  referred  to  those investigations,  all. the incidents of those  investigations would be governed by the provisions of the repealed, Act and the  question  as to the admissibility in  evidence  of  the results  of  such  investigations  would  also  have  to  be considered  ’With reference to the provisions of  that  Act. Section 162 of the Criminal Procedure Code in terms  applied to the investigations conducted "under this Chapter",  i.e., Chapter  XIV which relates to information to the police  and their powers to investigate, whereas section 63 of the  City of Bombay Police Act IV of 1902 specifically referred to the investigations conducted "under this Act", i.e., the City of Bombay  Police Act IV of 1902.  Section 162 of the  Criminal Procedure  Code therefore applied by reason of  the  context and  the terms of that very section to investigations  which had  been conducted by the Bombay City Police after the  1st August, 195 1, and would not have a retrospective operation, because  the investigations conducted up to the 1st  August, 1951,  by  the  Bombay City Police would  certainly  not  be investigations conducted "under this Chapter", i.e., Chapter XIV  of the Criminal Procedure Code.  There is no  substance therefore in either of these contentions and the question as to  admissibility in evidence of the statements made in  the course of investigation under the City of Bombay Police  Act IV  of 1902 would have to be considered in the light of  the provisions of section 63 of that Act and not section 162  of the Criminal Procedure Code. It  may  be noted that the test  identification  parades  in regard to the accused I and 2 were all held prior to the 1st August,  1951, and no question could therefore arise  as  to the provisions of section 162 of the Criminal Procedure Code being applicable to the evidence in



916 I regard to those parades.  The test identification parades in regard to accused 4 however were held after the 1st  August, 1951,  between the 16th January and the 22nd January,  1952, and  it  remains to be considered how far  the  evidence  in regard  to those parades was admissible in  evidence  having regard  to  the provisions of section 162  of  the  Criminal Procedure Code.  There  has been a conflict of opinion between various  High Courts in regard to the admissibility of evidence in  regard to  these  test identification parades.  The  Calcutta  High Court and the Allahabad High Court have taken the view  that identification  of  a person amounts to a  statement  within section   162   and  that  therefore  the   fact   of   such identification  is  not admissible in  evidence.  *The  High Court  of  Madras and the Judicial Commissioner’s  Court  at Nagpur have taken the contrary view. In  Khabiruddin v. Emperor(1) the question arose as  to  the admissibility  of identification of stolen  property  during investigation in the presence of police officers and it  was held that section 162 embraced all kinds of statements  made to a police officer in the course of an investigation,  that the  evidence of the fact of identification is  nothing  but evidence   of   the   statements   which   constitute    the identification  in a compendious and concise form  and  that therefore  any  identification  of stolen  property  in  the presence  of  a police officer during  investigation  was  a statement made to a police officer during investigation  and was therefore within the scope of section 162.  Pointing out by finger or nod of assent in answer to a question was  held as  much a verbal statement as a statement by word of  mouth and  no distinction was made between the mental act  of  the identifier  on  the one hand and the communication  of  that identification  by -him to another on the other.   Even  the fact of identification by the identifier himself apart  from the  communication thereof to another was considered  to  be within the ban of section 162. This  decision  was  commented upon  in  Surendra  Dinda  v. Emperor(2).   There  also  the  question  arose  as  to  the admissibility of the evidence of the sub-inspector (1) A.I.R. 1943 Cal. 644. (2) A.I.R. 1949 Cal. 514. 917 of  police  that the witnesses told him  that  the  articles produced  by him were identified by them as  their  property and the statements by the witnesses themselves A. that  they had  identified the articles to the sub-inspector.   It  was held  that the word "identified" had a’ double meaning.   It meant  the  fact  of  actual  recognition  as  well  as  the communication,  of that fact to a third person.   There  was distinction  between  on  the one hand the  actual  fact  of identification  which  is a mental act on the  part  of  the person   identifying,  seeing  an  object  or   person   and recognizing  that  the object or person seen  was  identical with some particular object or person and on the other  hand the communication to a third person of this mental act.  The communication   was   of  course  a   statement,   but   the identification  by  the identifier could not  possibly-be  a statement.   The Court however proceeded to observe that  no distinction  could  be legitimately made between  an  actual verbal  statement  and  some  action  on  the  part  of  the identifier disclosing the fact of his identification.   Both were  hit  by section. 162.  The communication  of  his  own mental  act of recognition and identification to the  police



was  what was hit but evidence in the Court subsequently  by the  actual  identifier himself was not  inadmissible  under section 162.  The Court further observed that it was not the actual  act or process of seeing or recognising the  accused in  the  presence of the officer which was affected  by  the provisions of the section, it was the communication of  that fact  to  the  police officer of which proof  could  not  be given.  It therefore held that the accused was entitled  to’ object  to  the  evidence of  the  sub-inspector,  that  the witnesses  "identified" the articles to him or the  evidence of  the  witnesses  when they  said  they  "identified"  the articles in the presence of the sub-inspector in so far  as, the latter expression was taken to mean and include not only that they recognised the articles as theirs but conveyed the fact of that recognition to the sub-inspector. The Allahabad High Court in Daryao Singh v.State(1) followed this  decision of the Calcutta High Court in  terms  without adding any comments of its own. (1) A.I.R. 1952 All. 59. 117 918 These  decisions  of  the Calcutta and  the  Allahabad  High Courts seek to make a distinction between the mental act  of identification and the communication of that fact to another person.   The  mental act of identification is  not  hit  by section 162 but the communication thereof to another  person either  by  an oral statement or even by signs  or  gestures including  the pointing out by finger or nod of  assent  in, answer  to a question put to the identifier in  that  behalf would  come within the ban of section 162.   Anything  which amounts   to   a   communication  of  the   fact   of   such identification by the identifier to another person is banned and  no evidence in respect thereof can be given in a  Court of law under section 162. The High Court of Madras on the other hand in In re  Kshatri Ram  Singh  (1) took the view that any  evidence  about  the statements  made by witnesses at the identification  parades held  by  the  police in the  course  of  investigation  was excluded  by  section 162, but the fact that  witnesses  had identified  persons at parades held by the police  might  be proved.   In  coming  to  this  conclusion  the  High  Court followed an earlier decision of a Division Bench reported in Guruswami Thevan v. Emperor (2).  In that case an  objection had   been  taken  to  the  admission  of  a  note   of   an identification parade held by the police Sub-inspector.   It was  contended  that  the  document  embodied  a  record  of statements  made  by  identifying  witnesses  to  the   sub- inspector  and as such was inadmissible under  section  162. Mr.  Justice  Wadsworth who delivered the  judgment  of  the Court observed that the question was not without difficulty, for  in  the nature of things it was probable  that  when  a witness  identifies a person in a parade he does  make  some statement or other as to the purpose for which he identifies him  and  anything said by a witness  at  an  identification parade  held  by  the investigating officer  might  well  be considered  to come within the purview of section  162.   On the other hand the mere act of a witness in picking out  one individual  from  a  parade  was  a  revelant   circumstance concerning   which  evidence  is  admissible  and   if   the investigating officer made a note of that circumstance which he himself had observed, there was no (1) A.I.R. 1941 Mad. 675    (2) 1936 M.W.N. I77. 919 apparent  reason  why  that  note should,  not  be  used  in evidence.   If  in  the course of that note  he  appends  an



inadmissible  record  of the statement  of  the  identifying witnesses  presumably  any such portion of the  note’  would have  to  be  excluded  from  evidence.   He  applied   that criterion  to the document in question and the bare note  of the personnel of the parade, the names of the witnesses, the way in which the parade was arranged and the numbers of  the persons  in the parade identified by each witness were  held unobjectionable.   ’What was excluded was the  statement  in regard to the identification of witnesses of the persons  as having  been  concerned in the murder cases which  were  the subjectmatter of investigation.  A distinction was thus made between   the  physical  fact  of  identification  and   the statement  made  by the identifier as  regards  the  persons identified having been concerned in the offence. The  Judicial  Commissioner’s Court at  Nagpur  in  Ramadhin Brahmin  v.  Emperor (1) expressed a  similar  Opinion  that evidence of police officers who give evidence with regard to the identification parades which were held and who depose to certain of the accused having been identified by prosecution witnesses  in an identification parade was not  inadmissible under  section 162 as their evidence does not relate to  any statement made to the police but is a simple exposition of a fact or circumstances witnessed by themselves.  Here also  a distinction  appears to have been made between the  physical fact  of identification sought to be proved by the  evidence of  the  police  officers and the  statements  made  by  the identifier to the police. In  order  to resolve this conflict of opinion  one  has  to examine  the purpose of test identification parades.   These parades  are  held  by the police in  the  course  of  their investigation  for  the  purpose of  enabling  witnesses  to identify the properties which are the subject-matter of  the offence or to identify the persons who are concerned in  the offence.   They  are  not held merely  for  the  purpose  of identifying  property  or  persons  irrespective  of   their connection with the offence.  Whether the police (1)  A.I.R. 1929 Nag. 36. 920 officers interrogate the identifying witnesses or the  Panch witnesses  who  are  procured  by  the  police  do  so,  the identifying  witnesses are explained the purpose of  holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned  in  the offence.  If this background is  kept  in view  it is clear that the process of identification by  the identifying   witnesses  involves  the  statement   by   the identifying   witnesses  that  the   particular   properties identified  were  the subject-matter of the offence  or  the persons  identified  -were concerned in the  offence.   This statement  may  be express or implied.  The  identifier  may point  out  by  his finger or -touch  the  property  or  the person.  identified,  may either nod his head  or  give  his assent  in  answer to a question addressed to  him  in  that behalf or may make signs or gestures which are tantamount to saying  that  the  particular property  identified  was  the subject-matter  of the offence or the person identified  was concerned  in the offence.  All these statements express  or implied  including the signs and gestures would amount to  a communication   of  the  fact  of  identification   by   the identifier  to  another person.  The  distinction  therefore which  has been made by the Calcutta and the Allahabad  High Courts  between  the mental act of  identification  and  the communication thereof by the identifier to another person is quite  logical  and such communications  are  tantamount  to statements  made by the identifiers to a police  officer  in



the  course  of  investigation and come within  the  ban  of section  162.  The physical fact of identification has  thus no  separate existence apart from the statement involved  in the very process of identification and in so far as a police officer seeks to prove the fact of such identification  such evidence  of his would attract the operation of section  162 and  would be inadmissible in evidence, the  only  exception being the evidence sought to be given by the identifier him- self in regard to his mental act of identification which  he would  be  entitled to give by way of corroboration  of  his identification  of the accused at the trial.   We  therefore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken 921 by  the  Madras High Court and the  Judicial  Commissioner’s Court at Nagpur. The  learned  Attorney-General  however  sought  to  make  a distinction  between  the  statements  made  to  the  police officers  and  the statements made to  the  Panch  witnesses called  by  the  police officers when  conducting  the  test identification  parades.  He urged that a statement made  to the police officers would be within the ban of section  162. But  if in spite of the test identification  parades  having been arranged, by the police Panch witnesses were called  by the  police and they explained to the identifying  witnesses the  purpose of the parades and the identification was  made by  the witnesses before them though in the presence of  the police officers, the Panch witnesses could certainly  depose to the fact of identification as also the statement made  by the  identifying  witnesses to them without  attracting  the operation  of section 162.  He further urged that in such  a case  the identification would amount to a statement to  the Panch witnesses even though the police officers were present at  the time and it would be a question of fact whether  the statement -was made to the Panch witnesses or to the  police officers  which question would have to be determined  having regard to the circumstances of each case. [Vide Abdul  Kader v. Emperor(1) and Rao Shiv Bahadur Singh v. State of Vindhya Pradesh(2)].   He  contended that  the  test  identification parades were held in the present case in the presence of the Panch witnesses who were called by the police for witnessing the  same,  that  the  Panh  witnesses  explained  to-  each identifying witness the purpose of holding the parade,  that the  identification took place in the presence of the  Panch witnesses  who noted down the result of the  identification, that  Panchnamas  were  prepared by  the  police  after  the identification  was  held  and  were  signed  by  the  Panch witnesses  and  that therefore the,  identification  of  the accused by the identifying witnesses amounted to  statements made  by the identifiers to the Panch witnesses and  not  to the  police and evidence in that behalf given by  the  Panch witnesses was therefore admissible in evidence. (1) A.I.R. 1946 Cal. 452. (2) [1954] S.C.R. 1098. 922 This  argument  would  have availed  the  learned  Attorney- General  if after arranging the test  identification  parade the  police  had completely obliterated themselves  and  the Panch  witnesses were left solely in charge of  the  parade. The  police  officers would certainly  arrange  the  parade, would  call the persons who were going to be mixed  up  with the accused in the course of the parade and would also  call the  Panch  witnesses who were to conduct the  parade.   But once  the  Panch witnesses were called for the  purpose  the whole  of the process of identification should be under  the



exclusive direction and supervision of the Panch  witnesses. If the Panch witnesses thereafter explained, the purpose  of the  parade to the identifying witnesses and the process  of identification   was  carried  out  under  their   exclusive direction  and supervision, the statements involved  in  the process  of identification would be statements made  by  the identifiers to the Panch witnesses and would be outside  the purview of section 162.  In the case of the,  identification parades in the present case however the police officers were present all throughout the process of identification and the Panch-witnesses  appear only to have been brought  in  there for  the purpose of proving that the requirements of law  in the matter of holding the identification parades were  fully satisfied.   Not only were the police officers present  when the  identifying  witnesses were brought into the  room  one after  the  other  and identified  the  accused,  they  also prepared ’the Panchnama, read out and explained the contents thereof  to  the  Panch witnesses,  and  also  attested  the signatures  of  the Panch witnesses which were  appended  by them  at  the  foot  of the Panchnama.   The  whole  of  the identification parades were thus directed and supervised  by the  police  officers and the Panch witnesses took  a  minor part  in  the same and were there only for  the  purpose  of guaranteeing  that the requirements of the law in regard  to the  holding of the identification parades  were  satisfied. We  feel  very  great reluctance  in  holding  under  these, circumstances that the statements, if a any, involved in the process  of  identification  were  statements  made  by  the indentifiers  to the Panch witnesses and not to  the  police officers as 923 otherwise  it  will  be  easy for  the  police  officers  to circumvent the provisions of section 162 by formally  asking the  Panch witnesses to be present and contending  that  the statements,  if  any, made by the identifiers’ were  to  the Panch witnesses and not to themselves.  We are therefore  of the  opinion that the test identification parades in  regard to  the accused 4 which were held between the 16th  January, and  the  22nd  January, 1952, attracted  the  operation  of section  162  and the evidence of  identification  at  those parades was inadmissible against accused 4. The  question as to the admission of  evidence  inadmissible under  section  27 of the Indian Evidence  Act  really  lies within a narrow compass.  The contention in this behalf  was based  on the evidence of the Investigating  Officer,  Hujur Ahmed Khan, that on the 16th May, 1951, the accused I made a certain statement in consequence of which he took accused  I and  2  to Itawa and leaving the accused 2 there  the  party proceeded  to  Bhagwasi with the accused I and  his  further evidence that the accused 1 there pointed out Baliram who at the instance of accused 1 dug out from a mud house a tin box containing  three  revolvers and two  tins  containing  live cartridges.   Exception  was taken to  the  expressions  "in consequence  of a certain statement made by accused  1"  and "at  the  instance of accused 1" which it  was  argued  came within the ban of section 27. Section   27  of  the   Indian Evidence Act runs as under     :- "Provided that, when any fact is deposed to as discovered in consequence of information-received from a person accused of any offence, in the custody of a police officer, so much  of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may  be proved.  " Section 27 is an exception to the rules enacted in  sections



25  and 26 of the Act which provide that no confession  made to  a  police officer shall be proved as  against  a  person accused  of  an offence and that no confession made  by  any person  whilst  he is in the custody of  a  police  officer, unless it be made in the immediate presence of a Magistrate, shall be proved as 924 against  such person.  Where however any fact is  discovered in consequence of information received from a person accused of  any  offence, in the custody of a police  officer,  that part  of the information as relates distinctly to  the  fact thereby  discovered  can be proved whether it amounts  to  a confession or not.  The expression "whether it amounts to -a confession  or not" has been used in order to emphasise  the position that even though it may amount to a confession that much  information as relates distinctly to the fact  thereby discovered  can be proved against the accused.  The  section seems  to  be based on the view that if a fact  is  actually discovered   in  consequence  of  information   given   some guarantee is afforded thereby that the information was  true and  accordingly  can  be  safely allowed  to  be  given  in evidence.   But  clearly  the  extent  of  the   information admissible  must  depend on the exact nature  of  the  fact. discovered to which such information is required to  relate. [Kottaya v. Emperor(1)]. On  a  bare reading of the terms of the section  it  appears that what is allowed to be proved is the information or such part  thereof  as  relates distinctly to  the  fact  thereby discovered.   The information would consist of  a  statement made  by  the accused to the police officer and  the  police officer is obviously precluded from proving the  information or  part thereof unless it comes within the four corners  of the  section.   If  the police officer wants  to  prove  the information  or  a  part thereof, the Court  would  have  to consider  whether it relates distinctly to the fact  thereby discovered  and  allow  the  proof  thereof  only  if   that condition was satisfied.  If however the police officer does not  want  to  prove the information or  any  part  thereof, section  27 does not come into operation at all.   What  was stated  by the Investigation Officer, Hujur Ahmed  Khan,  in the  present case was that certain information was  supplied to  him  by the accused 1 in consequence of  which  he  took certain steps.  He did not seek to prove that information or any  part thereof in the evidence which he gave  before  the Court.   Even when he said that Baliram dug out the tin  box from the mud floor of a house at (1)  A.I.R. 1947 P.C. 67. 925 the instance of the accused I he did not seek to prove  what that  information  was.   The operation of  section  27  was therefore  not attracted and _prima facie there was  nothing to prevent that evidence being admitted against the  accused 1.  - Reliance was however placed on an unreported  judgment of Chagla C.J. and Gajendragadkar J. delivered on the 11  th January,  1950. in Criminal Appeals No. 454 of 1949 and  No. 464 oil, 1949 with revisional application No. 952 of 1949 in the  case of Rex v. Gokulchand Dwarkadas Morarka No.  1.  An exception  was  there taken to the statement of  the  police officer  that in consequence of certain statements  made  by the  accused I and 2 in that case he discovered the  missing pages of the Bombay Samachar of the 23rd April, 1948, and it was contended that statement was inadmissible in evidence. - The question that really arose for the consideration of  the Court  there was whether the joint statement  attributed  to the  accused  I and 2 in that case  was  admissible  without



specifying what statement was made by a particular  accessed which  led to the discovery of the relevant fact and it  was rightly held that a joint statement by more than one accused was  not  contemplated  by section 27 and  the  evidence  of Mistry, the police officer, in that behalf should  therefore have  been excluded.  An argument was however  addressed  by the  learned  Advocate-General who appeared  for  the  State there that Mistry had not attempted to prove what  statement the  accused  had  made and all that he  said  was  that  in consequence of statements made by them a discovery was made. The learned Judges dealt with that argument as under:- "In our opinion, this is a roundabout and objectionable  way of  attempting to prove the statements made by  the  accused without  actually  proving them.  When  the  police  officer speaks of "in consequence of a statement made by an  accused a  discovery  was  made", he involves  the  accused  in  the discovery.  Whether he gives evidence as to the actual words used  by  the  accused or not, the  connection  between  the statement  made  by  the accused and the  discovery  of  the relevant fact is clearly hinted at.  In our opinion, 118 926 therefore, evidence cannot be given of any statement made by accused  which results in the discovery of a fact unless  it satisfies the conditions laid down under section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution.  Even if the statement is  not proved,  the statement must be such as can be  proved  under section 27." The learned Judges then proceeded to consider the  following observations of Rankin C.J. in Durlav Namasudra v. Emperor(1) : "There  seems  to me to be nothing in section 24  or  25  to prevent  evidence being given: ’In consequence of  something said by the accused I went to such and such a place and the- re  found the body of the deceased.’ In cases under  section 27 the witness may go further and give the relevant part  of the confession." The  learned Judges expressed their inability to agree  with this view of the law observing that Ran kin C.J. was  really dealing academically with the various sections of the Indian Evidence  Act  and  he was not called upon  to  decide  this point.   With the utmost respect the learned Judges  of  the Bombay  High  Court  committed the  same  error  which  they thought  Rankin  C.J.  had  committed,  because  immediately thereafter they observed:- "We  would  also like to add that, in the  circumstances  of this  case,  this discussion is somewhat  academic,  because even if we accept the contention of the Advocate-General and hold  that  the statement of the  investigating  officer  is admissible,  it cannot, -possibly help the prosecution  case very much." What they were considering was the case of a joint statement made  by  the  accused  1  and 2  in  that  case  and  these observations  made  by them expressing  their  inability  to agree  with  Rankin  C.J.’s view of  the  law  were  clearly obiter. The evidence of the police officer would no doubt go to show that  the-  accused  knew  of  the  existence  of  the  fact discovered in consequence of information given by (1)  (1931) I.L.R. 59 Cal. 1040,1045. 927 him.   But  that  would  not  necessarily  show  his  direct connection  with the offence.  It would merely be a link  in the chain of evidence which taken along with other pieces of



evidence  might  go to establish his  connection  therewith. This  circumstance  would therefore be quite  innocuous  and evidence  could  certainly  be given  of  that  circumstance without attracting the operation of section 27. If it were necessary to do so we would prefer to accept  the view  of  Rankin C.J. to the one expressed  by  the  learned Judges  of the Bombay High Court.  This question as  regards the  inadmissibility  of evidence under section  27  of  the Indian  Evidence  Act  must therefore  be  answered  against accused 1. Turning now to the misdirections and non-directions such  as to  vitiate the verdict of the jury, the  main  misdirection which  was  pointed out by the learned counsel for  all  the accused before us was in regard to the question whether four or  five  persons were concerned in the  commission  of  the offence.  Particular exception was taken to paragraph 59  of the learned Judge’s charge to the jury:- "Brightling,  Baburao Raje, Miss Vida Palmer, Mrs.  Paterson and witness Sarkari, if you were to accept his evidence here on this part of the case, were all definite that there  were five  or more men surrounding the taxi and concerned in  the attack  while Holmes said that there were at least four,  if not  more,  which means that he was not  certain  about  the number.   If  you were to find from the statement  of  Casey that  he saw some men trying to pile into the taxi from  the rear door. of the taxi on the Bank side, that would  suggest that  there were at least five men concerned even  according to Casey.  Consider this question carefully and then if  you find  after  scrutiny of this evidence that  there  were  at least  five men conjointly concerned then only  section  395 would  apply.  That briefly was the evidence so far  as  the question as to the number of men is concerned." Our  attention  was drawn to the evidence of  these  several witnesses and it was pointed out that far from 928 their  being  definite  that there were  five  or  more  men concerned  in  the  commission  of  the  offence  there  was evidence  to show that only two persons were  occupying  the front seats and two persons were occupying the rear seats in the taxi which brought the number of persons to four and not five  as contended by the prosecution.  Exception  was  also taken to the manner in which the expression "piling into the taxi  from the rear door of the taxi on the Bank  side"  was sought  to  be  interpreted  by  the  learned  Judge,   thus belittling  the significance of the evidence of Major  Casey that  when the taxi went past him he saw two persons in  the front  seats and two persons in the rear seats of the  taxi. It was further pointed out that according to the evidence of Miss  Vida Palmer and Mrs. Paterson there were only five  or six persons there in all.  Their evidence did not definitely say  that these five persons were the persons  concerned  in the commission of the offence and that some of them might as well have been passersby or Baburao Raje or Sarvarkhan,  who happened to be present there at the scene of the  occurrence and  were certainly not concerned in the commission  of  the offence.   It  was also pointed out that  Holmes,  the  sub- manager  of  the  Bank, who witnessed  the  occurrence  from behind  the  double  glasses of the windows  was  not  in  a position to know how many persons actually took part in  the affair  and  was  also not in a position  to  see  how  many persons had got into the taxi.  We have carefully considered these  criticisms of the evidence of the  several  witnesses but are unable to come to the conclusion that there was  any misdirection on the part of the learned Judge in his summing up to the jury.  The evidence of each of these witnesses was



discussed by the learned Judge and the main defects and con- tradictions  in their evidence were clearly pointed  out  by him  to  the  jury.  The actual words used  by  him  in  the paragraph  in question were that the several witnesses  were all  definite that there were five or more  men  surrounding the taxi and concerned in the attack and on the evidence  as a  whole we do not see any exception to the  correctness  of that  statement.   The explanation which was given,  of  the expression 929 "piling into the taxi from the rear door of the taxi on  the Bank  side"  was also unobjectionable.  The words  "  piling into   the  taxi"  could  certainly  be   appropriate   when describing the getting into the taxi of "some other persons" and.   that  expression  certainly  was  capable  of   being understood  to mean that more than one person was trying  to get into the taxi from its rear door on the Bank side.   All these  points were clearly put by the learned Judge  to  the jury  and  we  are  of  the  opinion  that  -there  was   no misdirection  at  all in that part of  the  learned  Judge’s summing up to the jury.  It was strictly within the province of  the  jury  on the evidence as it was summed  up  by  the learned  Judge  to them on this aspect of -the  question  to come  to  the conclusion whether four or five  persons  were concerned in the commission of the offence and they  brought in  a unanimous verdict of guilty under section 395  of  the Indian Penal Code. The other misdirections which were sought to be pointed  out by  the learned counsel for the accused I and 2  were  minor misdirections,  if  any, and need not detain us, as  we  are clearly of the opinion that even -though those misdirections were  there they were not such as to vitiate the verdict  of the   jury.    We  must  however  advert  to   the   serious misdirection  which  it was contended was apparent  on-  the face of the learned Judge’s charge to the jury and which was the  result  of  the  learned  Judge’s  not  bringing   into prominence the various points which could be urged in favour of  the  accused.  It was contended that the  learned  Judge merely  reiterated  in  various  places  the  story  of  the prosecution  and  did not point out the  weaknesses  or  the defects in that story, that he did not advert to the various criticisms  which  were  leveled against the  story  of  the prosecution by the counsel for the defence, that he did  not point out to the jury the improbabilities of the prosecution story  or the incredibility of the prosecution witnesses  in regard to the salient features of the prosecution case, that he  did  not draw the pointed attention of the jury  to  the infirmities attaching to the prosecution evidence in  regard to  the  test identification parades and  that  the  learned Judge’s summing up to 930 the  jury  was on the whole unfair and  prejudicial  to  the accused. Section 297 of the Criminal Procedure Code lays down that in cases  tried by jury, when the case for the defence and  the prosecutor’s  reply (if any) are concluded, the Court  shall proceed to charge the jury, summing up the evidence for  the prosecution  and defence, and laying down the law  by  which the jury are to be guided.  The Judge lays down the law  and directs  the jury on questions of law.  So far as the  facts are concerned however they are within the exclusive province of  the  jury.  But even there the Judge has to sum  up  the evidence  for the prosecution and defence.  Summing up  does not mean that the Judge should give merely a summary of  the evidence.  He must marshall the evidence so as to bring  out



the  lights  and  the  shades,  the  probabilities  and  the improbabilities so as to give proper assistance to the  jury who are required to decide which view of the facts is  true. Vide Ilu v. Emperor(1).  The Judge should give the jurv  the help and guidance which they are entitled to expect from the Judge  and which it is his duty to give.  The charge  should not  consist of a long rambling repetition of the  evidence, without any attempt to marshall the facts under  appropriate heads, or to assist the jury to sift and weigh the  evidence so  that they will be in a position to understand which  are the  really important parts of’ the evidence and which  -are of secondary importance.  It is necessary in every  criminal case  for the Judge carefully, properly and  efficiently  to charge  the  jury  and he should  not  go  into  unnecessary details  with regard to such aspects of the case  which  are really  of  very  little  importance.   Vide  Nabi  Khan  v. Emperor(2)    It  has  been observed  by  the  Privy  Council however in Arnold v. King-Emperor(6), that- "  A  charge to a jury must be read as a  whole.  there  are salient propositions of law in it, these will, of course, be the  subject  of  separate analysis.  But  in  a  protracted narrative  of fact the determination of which is  ultimately left to the jury, it must needs be that the (1)  A.I.R. 1934 Cal. 847. (2)  A.I.R.’1936 Cal. 186. (3) (1914) I.L.R. 41 Cal. 1023. 931 view  of the Judge may not coincide with the view of  others who  look  upon  the whole proceedings in  black  type.   It would,  however,  not be in accordance with  usual  or  good practice  to treat such cases as cases of misdirection,  if, upon  the general view taken, the case has been fairly  left within  the jury’s province.  But in any case in the  region of fact their Lordships of the Judicial Committee would  not interfere  unless  something gross amounting to  a  complete misdescription  of  the whole bearing of  the  evidence  has occurred.’? Bearing  these principles in mind we have got to  scrutinise how  far  these  criticisms  levelled  against  the  learned Judge’s  charge to the jury are of any avail.  We have  been taken  into the evidence of the several witnesses  in  great detail  by  the learned counsel for the accused but  we  are unable  to come to the conclusion that there is any  serious misdirection  such as to vitiate the verdict of the jury  or that  there  has  been a failure of  justice.   The  learned Judge’s charge to the jury has been scrupulously fair and he has in several places brought out the points which  militate against the story of the prosecution and support the defence version.   He  has been at pains to point  out  the  various -defects   and  contradictions  in  the  evidence   of   the prosecution  witnesses and has fairly put it to the jury  to consider  whether in view of the same they would accept  the testimony  of the several witnesses.  He has marshalled  the evidence against each of the accused separately and has also pointed out in their proper places the criticisms which have been  levelled  against  the  evidence  of  the  prosecution witnesses  in regard to each of the accused, Apart from  the general observations which he made in regard to the scrutiny of  the evidence of the test identification parades  he  has also in appropriate places reiterated the warning in  regard to  that  evidence and has put the jury wise  to  the  whole position in regard to such evidence.  On reading the  charge as  a whole we are of the opinion that there is  nothing  in the learned, Judge’s charge to the jury which would, to  use the words of their Lordships of the Privy Council, "  amount



to  a  complete misdescription of the whole bearing  of  the evidence" or that "there is any failure of justice, 932 We  are  unable  to agree with the submission  made  by  the learned  counsel for the accused before us that  the  charge was grossly unfair or contained any serious misdirection  or non-direction such as to vitiate the verdict of the jury. The  result therefore is that so far as the verdict  of  the jury  against accused I and 2 is concerned the same was  not vitiated either by the admission of inadmissible evidence or by  any misdirection or non-direction.  The  convictions  of these  accused  and the sentences passed upon  them  by  the learned Sessions Judge will therefore be confirmed. As regards accused 4 however there has been an error of  law in admitting evidence of the test identification parades  in regard  to  him which we have held  was  inadmissible  under section  162 of the Criminal Procedure Code.  The  admission of such inadmissible evidence would amount to a misdirection in the learned Judge’s charge to the jury in regard to  that accused and it is necessary therefore to consider what would be the effect of the admission of such inadmissible evidence so far as that accused is concerned. Learned counsel for the accused relied upon the observations in  Kabiruddin  v.  Emperor(1), that it  was  impossible  to ascertain what was the effect of this evidence  on  the  minds of the jury and that  it  was  also impossible  to say that this inadmissible evidence  did  not have considerable effect on the jury and their verdict.   He therefore urged that the verdict should be set aside and the case remanded for retrial.  A later decision of the Calcutta High  Court  reported  in  Surendra  Dinda  v.   Emperor(1), however,  took  the view that every breach  of  section  162 would   not   vitiate  a  trial.   Reception   of   evidence inadmissible under section 162 was not necessarily fatal and in  an  appeal the Court had to see  whether  the  reception influenced the mind of the jury so seriously as to lead them to a conclusion which might have been different but for  its reception.   It must always be a question whether  prejudice had  been  caused in such cases, and, if  not,  whether  the materials (1) A.I.R. 1943 Cal. 644, 646, (2) A.I. R. 1949 Cal. 514.                         933 left  were sufficient within the meaning of section  167  of the  Indian Evidence Act.  The position in this  behalf  has got  to  be considered with reference to the  provisions  of section 537 of the Criminal Procedure Code and section 167 of the Indian Evidence Act.  Section 537 of  the Criminal Procedure Code provides:- "  Subject  to  the provisions  hereinbefore  contained,  no finding,  sentence or order passed by a Court  of  competent jurisdiction  shall  be reversed or  altered  under  Chapter XXVII or on appeal or revision on account............ (d)  of  any  misdirection in any charge to a  jury,  unless such..................   misdirection  has   in   fact   ... occasioned a failure of justice.  " Section 167 of the Indian Evidence Act provides:- "The  improper admission or rejection of evidence shall  not be  ground  of  itself for a new trial or  reversal  of  any decision in any case, if it shall appear to the Court before which  such objection is raised, that independently  of  the evidence  objected  to and admitted, there,  was  sufficient evidence  to justify the decision, or that, if the  rejected evidence had been received, it ought not to have varied  the decision.  "



The  latest pronouncement on this question was the  decision of the Privy Council in Abdul Rahim v. KingEmperor(1), where it  was laid down that where inadmissible evidence had  been admitted  in  a criminal case tried with a  jury,  the  High Court  on appeal may, in view of section 167 of  the  Indian Evidence  Act  after excluding such  inadmissible  evidence, maintain   ’a  conviction,  provided  that  the   admissible evidence  remaining  was,  in  the  opinion  of  the  Court, sufficient  clearly to establish the guilt of  the  accused. It was observed that Misdirection is not in itself a sufficient ground to justify interference  with the verdict.  The High Court  must  under the provisions of section 423, subsection 2 and section  537 of  the  Criminal  Procedure Code  proceed  respectively  to consider whether the (1) (1946) L.R. 73 I.A. 77. 119 934 verdict  is erroneous owing to the misdirection  or  whether the  misdirection  has  in  fact  occasioned  a  failure  of justice.   If  the  Court  so finds, then  its  duty  is  to interfere.   In  deciding whether there has been in  fact  a failure of justice in consequence of a misdirection the High Court is entitled to take the whole case into  consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent one convicted." This decision was followed by our Court in Mushtaq Husain v. State of Bombay(1) and the Court held that where a jury  has been  misdirected and has based its verdict  on  assumptions and  conjectures, the Supreme Court may order a  retrial  or remit  the case to the High Court with a direction  that  it should  consider the merits of the case in the light of  the decision of the Supreme Court and say whether there has been a failure of justice as a result of the misdirections, or it may  examine  the merits of the case and decide  for  itself whether there has been a failure of justice in the case  and that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the Court would  be entitled  to take the whole case into  consideration.   This Court  discussed the statute law in India which  in  certain circumstances permitted an appeal against a jury verdict and authorised the appellate Court to substitute its own verdict on  its  own consideration of the evidence and came  to  the conclusion  that  unless it was established in a  case  that there  had  been  a serious misdirection  by  the  Judge  in charging the jury which had occasioned a failure of  justice and  had misled the jury in giving its verdict, the  verdict of the jury could not be set aside. What   has  therefore  got  to  be  done  in   cases   where inadmissible  evidence  has  been  admitted  and  has   been incorporated in the learned Judge’s charge to the jury is to exclude  the  inadmissible  evidence  from  the  record  and consider   whether   the  balance  of   evidence   remaining thereafter is sufficient to maintain the conviction. A  question  was raised in this connection  by  the  learned Attorney-General whether having regard to (1)       [1953] S.C.R. 809. 935 the observations of their Lordships of the Privy Council  in Abdul  Rahim  v. King-Emperor (supra) and of this  Court  in Mushtaq  Husain  v. State of Bombay (supra)  the  Court  was justified in considering the balance of evidence for  itself and  substituting  its own verdict for the  verdict  of  the jury.  He relied upon the observations of the Privy  Council



approving  the  decision  in Mathews v.  Emperor(1)  to  the effect that the appellate Court was entitled to examine  the evidence to see whether it justified the verdict  pronounced or  whether there had in fact been a failure of justice  and also  upon  the observations of Mr. Justice Mahajan,  as  he then  was, to the effect that on the materials on record  no reasonable  body of men could have arrived at  the  verdict. There  is  no  doubt that these observations  occur  in  the judgments  above  referred to.  But if these  judgments  are read as a whole they go to show that it is for the Court  of Appeal  to  take  the  whole  case  into  consideration  and determine  for itself whether the verdict pronounced by  the jury  was  justified  or whether there had been  in  fact  a failure  of  justice.   The merits of the case,  had  to  be examined by the Court. of Appeal and the Court had to decide for itself whether the conviction could be maintained. As a matter of fact this very question was mooted before the Privy Council in Abdul Rahim v. KingEmperor(2 ) as under: "The controversy which, as the reported cases show, has long existed  in the High Courts of India has centered round  the question  whether the appellate court, in  deciding  whether there is sufficient ground for interfering with the  verdict of a jury, particularly where there has been a  misdirection by  the judge, has the right and duty to go into the  merits of  the case for itself and on its own consideration of  the evidence  to  make  up  its mind  whether  the  verdict  was justified  or not.  On the one hand, it has been  said  that the  accused  is  entitled to have his  guilt  or  innocence decided  by  the verdict of a jury and  that  the  appellate court  has no right to substitute its own judgment in  place of a verdict by a jury...... On the other hand, it (1) A.I.R. 1940 Lah. 87. (2) (1946) L.R. 73 I.A. 77, 93. 936 is argued that it is impossible for the court to perform the duty laid on it by the Code without applying its own mind to the  soundness of the verdict." Section 537 of the  Criminal Procedure Code was then referred to as also the two distinct lines  of cases supporting these ,divergent points of  view. The,  Privy  Council then came to the  conclusion  that  the ratio  of  cases beginning with Elahee Buksh(1)  and  ending with  Mathews  v. Emperor(1) was correct and held  that  the Court  was entitled to examine the evidence for  itself  and see  whether it justified the verdict pronounced or  whether there  had in fact been a failure of justice.  The Court  of Appeal  is thus entitled to substitute its own  verdict  for the  verdict  of  the jury if on examining  the  record  for itself  it comes to the conclusion that the verdict  of  the jury  was  erroneous  or that there has been  a  failure  of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted. It is therefore necessary to consider whether the balance of evidence on the record after excluding the evidence of  test identification parades in regard to accused 4 is  sufficient to maintain his conviction.  We have been taken through  the evidence which wag led on behalf of the prosecution  seeking to  prove that accused 4 was concerned in the commission  of the offence.  Baburao Raje was no doubt characterised as  an unreliable witness.  But even apart from his evidence  there was evidence of Sarvarkhan which was sufficient to establish the participation of accused 4 in the offence.  His presence at the scene of the occurrence and his participation in  the offence  was clearly deposed to by Sarvarkhan and we see  no reason  in  spite  of the criticisms  levelled  against  his evidence by learned counsel to discard his testimony in that



behalf.   There is also sufficient evidence of his  previous conduct,  his  association  with the accused I  and  2,  his activities  in Bombay after he arrived there from  Delhi  in the  beginning of April, 1951, in regard to the  renting  of rooms  and  garage  from Tayabali  Vaid  and  attempting  to acquire  the Vauxhall and the Chevrolet cars from’  Haribhau and Ramdas respectively, his (1) (1866) 5 W. R. 80 (Cr.). (2) A.I.R. 1940 Lah. 87. 937 conversations  with  Lalchand  and  in  particular  (1)  the conversation  outside  the  Sandhurst  Road  Branch  of  the Central  Bank  of India Ltd., and (2)  the  conversation  at Apollo  Bunder  near the Sea Wall where he,  accused  1  and Lalchand had gone after having the hair-cut at the Taj Mahal Hotel and survey of the site of the Lloyds Bank by him along with  the other accused as deposed to by Chinoy  and  Ramesh Chandra  Mehta  which make it highly probable that  he  must have  been present at the scene of the occurrence  and  must have  participated  in  the commission  of  the  offence  as deposed  to by Sarvarkhan.  His subsequent conduct  also  in leaving  Bombay by the Calcutta Mail bound for Allahabad  on the  night  of the 20th April, 1951, and the  expression  of relief at his finding accused 1 at the last moment  entering his  compartment, proved as it is by the evidence  of  Gogte contrary to his own assertion and the assertion of accused 1 that they had left Delhi for Kanpur on the 18th April, 1951, and had sworn an affidavit there before the Magistrate,  Mr. Tandon, also support the same conclusion.  All this evidence in  our’ opinion is sufficient to establish the case of  the prosecution  against  him  and we are  satisfied  that  even excluding the evidence of the test identification parades in regard to him the balance of evidence remaining on record is enough to maintain his conviction. The result therefore is that the appeals of all the  accused fail and must stand dismissed. JAGANNADHADAS   J.-I  agree  that  the  appeals  should   be dismissed.   But  I  consider it necessary  to  make  a  few observations  as regards the questions debated before us  in these  cases with reference to section 162 of  the  Criminal Procedure Code and section 27 of the Indian Evidence Act. I agree that the objection under section 162 of the Criminal Procedure Code to the admissibility of evidence relating  to identification parades does not apply to those held prior to the  1st  August,  1951.  The  only  identification  parade, therefore,  objection  to  the  admis.  sibility  of   which requires  consideration is that which relates to the  fourth accused held in January, 1952. 938 The  evidence  in  this behalf has been  given  by  (1)  the Police-Inspector, P.W. 80, Huzur Ahmed Mahomedali Khan,  (2) the  Panch witness, P.W. 113, Damodar Dayaram, and  (3)  the two  eye-witnesses, P.Ws. 13 and 15, Baburao  Parshram  Raje and Sarwarkhan.  An attempt has been made to argue before us that  while  the  evidence  of the  police  officer  may  be inadmissible,  the evidence of the Panch witness as well  as of  the  identifying witnesses themselves, relating  to  the fact   of   the  prior  identification,  as   an   item   of corroborative evidence is admissible.  I agree that, on  the evidence  given  in this case, there is no  scope  for  such differentiation and that the entire evidence relating to the prior identification parades concerning the 4th accused  is, in  Substance, evidence only of the prior statements of  the identifying  witnesses to, the police officer and  is  hence inadmissible.   But  I wish to guard  myself  against  being



understood as having assented to the suggestion that in  law a,  differentiation  can be made in such cases  between  the three classes of evidence, viz., (1)    of    the     police officer, (2) of the Panch witness, and (3)   of          the identifying  witness himself, in so far as they speak  to  a prior identification at a parade held by the police officer. I am inclined to think that such differentiation is  unsound and  inadmissible.   The legal permissibility thereof  is  a matter  of importance because, though the evidence of  prior identification  is only corroborative evidence,  still  such corroboration  is  of considerable value in  cases  of  this kind. Next  as  regards  the objection  to  the  admissibility  of evidence  raised with reference to section 27 of the  Indian Evidence  Act,  the  main  items of  evidence  are  (1)  the recovery  on  the 16th May, 1951, of a  tin  box  containing three revolvers and two tins containing live cartridges, and (2)  the  find  on  the 19th May, 1951,  of  a  steel  trunk containing  Government  currency notes of the value  of  Rs. 6,47,400 on the production thereof by Kamalabai, the wife of the first accused, at a village Bhagwasi which is her native place.   So far as the first is concerned it is not of  much consequence  because the expert evidence did not  show  that any  of the three bullets which were found at the  scene  of offence were 939 in  fact fired from the three revolvers above recovered  and this  has been sufficiently indicated in the charge  to  the jury.   It is the second item that is of  importance.   This arises  from  the fact that some of the currency  notes  had identification  marks  showing that they were  part  of  the bundle of notes which formed the object of the offence.  The evidence  in  this behalf is that of the  Police  Inspector, P.W. 80, which is as follows: "We started from Delhi at about 6 ’A.M., and reached Bagwasi at  about 2 or 3 P.m., on the 19th of May.  The 1st  accused took  us  to a certain house where he  pointed  out  witness Kamala (wife of the first accused).  At the instance of  the 1st  accused witness Kamala brought from  somewhere  outside that house a steel box........... When it was opened I found therein six big bundles and five smaller bundles of  hundred rupee G. C. Notes.  " The  portion in this evidence which is objected to  is  that this  production was "at the instance of the first  accused" seeking  thereby to establish the direct connection  of  the first accused with the find of this very large sum of  money which bears indications that it was out of that lost to  the Bank  by the offence.  It may be that when a police  officer speaks  to a recovery being "on the information of"  or  "at the  instance  of"  an accused, section  27  of  the  Indian Evidence  Act  is  not  in terms  attracted.   But  what  is objected  to  on  behalf of the appellants is  that  when  a police  officer speaks to a recovery of this kind as  having been  "at the instance of an accused" or "in consequence  of information  given  by an accused" he is  being  allowed  to place  on record not merely the fact of his having  received some  information  but also the implication  thereof,  viz., that  the information is of a character which directly  con- nects  the accused with the objects recovered.  It is  urged that  the  prosecution cannot be permitted to rely  on  such evidence  without  placing  the admissible  portion  of  the information  on  the record.  I am inclined  to  think  that there   is  considerable  force  in  this  objection.    The information given by ;in accused in such a situation may  be such which, if scrutinised, shows only his



940 remote  connection  and not direct connection.   In  such  a situation  evidence of the bare fact of  information  having been  given may be inadmissible and such evidence may  cause serious  prejudice.   I am not, therefore, prepared  to  say that  the  view  expressed by Chief Justice  Chagla  in  the unreported  judgment(1), placed before us is  erroneous.   I would   reserve  my  opinion  in  this  behalf  for   fuller consideration.   In the present case, however, even  if  the evidence of the police officer that the recovery was at  the instance  of or in consequence of information  furnished  by the  first  accused is ruled out, there is  still  the  fact spoken  to  by him that the trunk  containing  the  currency notes was produced by Kamalabai, wife of the first  accused, at  her  native  place.  This item of  evidence  is  clearly admissible  against  the first, accused  as  indicating  his connection.  Therefore no prejudice can be said to have been caused.   It is also to be noticed that no  objection  under sect ion 27 of the Indian Evidence Act appears to have  been taken at the trial nor is there any indication of it in  the grounds of appeal to the High Court. In  view of our opinion that the evidence of  identification parades relating to. the fourth accused was inadmissible, we were ’taken through the rest of the evidence as against this accused.. I agree, on a consideration of that evidence, that this  is not a case in which interference with  the  verdict even as against the fourth accused is called for. Appeals dismissed. (i)  judgment  of the Bombay High Court in Criminal  Appeals Nos.  454 and 464 Of 1949 in the case of Rex  v.  Gobutchand Dwarkadas  Morarka  No. I, delivered on  the  11th  January, 1950.  941