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Harsukh Hemchand Parekh Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR610
AppellantHarsukh Hemchand Parekh
RespondentState
Cases ReferredPyare Lal Bhargava v. The State of Rajasthan
Excerpt:
.....of one accused was not required to be considered at the time of considering the case of the other accused person. how this question is required to be looked at is clearly stated by the supreme court in three important cases. state of saurashtra reported in 1956crilj426 .in paragraph 11 of that judgment it is clearly stated that if it appears to the accused person reasonably that by making a confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, that confession cannot be considered to be a voluntary confession. it clearly appears from the judgment rendered by the learned additional sessions judge that not only he did not decide regarding voluntary character or otherwise of the confession but while appreciating the oral..........trial. hear it may be stated that during the trial one more person was prosecuted along with the accused person and he was also serving in the same post office as a clerk. the learned additional sessions judge fell into an error because there was a joint trial. the joint trial in itself is not bad in law. in a criminal trial there could be one, two or many accused persons. but in this particular case the two accused persons who are being prosecuted were trying to throw blame on each other and it clearly appeared that it was a case of accused no. 1 that accused no. 2 was guilty while accused no 2's case was that accused no. 1 was guilty. the learned judge thought that because of this contradictory defences put in by the two accused persons he had to decide as to which of the defences.....
Judgment:

S.L. Talati, J.

1. The petitioner was original accused No. 1 in Criminal Case No. 2279 of 1980 before the Chief Judicial Magistrate, Bhuj-Kutch. The prosecution case against him was that he was posted at Sukhpar Post office temporarily from 27-9-1979 in place of one Shri R.L. Pathak who was on leave. The allegation was that he committed criminal breach of trust in respect of a sum Rs. 11,000/- and also falsified the accounts and thereby committed offences punishable under Sections 409 and 477 A of the Indian Penal Code. He was sentenced to suffer R.I. for a period of five years and to pay a fine of Rs. 7,000/- in default to suffer simple imprisonment for a period of one year. He preferred Criminal Appeal being Criminal Appeal No. 26 of 1982 which was heard by the Additional Sessions Judge, Bhuj-Kutch. He maintained the conviction of the petitioner for the offence punishable under Sections 409 and 477A of the Indian Penal Code. However, his sentence was reduced and he was ordered to undergo. R.I. for one year and to pay a fine of Rs. 5,000/- in default to suffer imprisonment for a period of six months for the offence punishable under Section 409 of the Indian Penal Code, and no separate sentence was passed for an offence punishable under Section 477A of the Indian Penal Code.

2. The petitioner preferred this petition challenging the above conviction and sentence.

3. I have heard the learned advocate Shri Panchal for the petitioner and the learned P.P. Shri M.A. Trivedi for the State. Normally in a revision if there are concurrent findings of fact of two Courts this Court would not interfere. But on examination of this case it is found that the evidence adduced at the trial stage is not looked at from the correct legal perspective which is required to be done in a criminal trial. Hear it may be stated that during the trial one more person was prosecuted along with the accused person and he was also serving in the same post office as a clerk. The learned Additional Sessions Judge fell into an error because there was a joint trial. The joint trial in itself is not bad in law. In a criminal trial there could be one, two or many accused persons. But in this particular case the two accused persons who are being prosecuted were trying to throw blame on each other and it clearly appeared that it was a case of accused No. 1 that accused No. 2 was guilty while accused No 2's case was that accused No. 1 was guilty. The learned Judge thought that because of this contradictory defences put in by the two accused persons he had to decide as to which of the defences was correct. That is what he stated in paragraph 20 of his judgment. This was to begin with an absolute incorrect proposition in criminal trial. The real question which he should have posed should have been as to whether the prosecution established beyond doubt the case against accused No 1. At the time of considering the case of accused No. 1 what was required to be considered was to consider the evidence led against accused No. 1 and his statement or his explanation and the question that was required to be posed should have been whether the evidence led by the prosecution is sufficient for convicting accused No. 1 and whether the defence put forward by accused No. 1 is probable. If the defence put forward by accused No. 1 was probable he was entitled to the benefit of reasonable doubt. At the time of considering the question of accused No. 2 also he should have proceeded in the same fashion and that at that time he should not have considered the statement of accused No. 1. In a criminal trial, therefore, ultimately the learned Judge has to find out as to what is the evidence against each of the accused persons separately and whether the defence put forward by that particular accused person is probable. At that time the defences put forward by the other accused persons become irrelevant. The only exception to this Rule is that the statement of a co-accused could be considered if the provisions of Section 30 of the Evidence Act are attracted. Section 30 reads as under:

30. When persons than one are being tried jointly for the same offence, confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person who makes such confession.

Now, that, therefore, the statement of an accused could be considered against another accused person only if that statement is a confessional statement and that confessional statement implicates the person making it and also implicates the other person in the same manner. Then alone that statement could be considered. This requirement in this particular case was not satisfied and, therefore, the statement of one accused was not required to be considered at the time of considering the case of the other accused person. This is not the only error committed by the learned Additional Sessions Judge. He considered the confessional statement recorded by the Postal Superintendent who was examined at Exh. 30 who recorded the confessional statement of accused No. 1 at Exh. 35. The learned Additional Sessions Judge completely lost sight of the fact that the person who recorded that confession was a person in authority. Further the Postal Superintendent in his evidence in cross-examination admitted that he told accused No. 1 that he would be only proceeded against in a departmental inquiry. Now this was either an inducement or promise coming from a person in authority and accused No. 1 would have thought that he would avoid an evil of a criminal proceeding. Section 24 of the Evidence Act reads as under:

24. A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

Now that, therefore, there is no doubt that the Postal Superintendent was a person in authority. He did make an inducement or promise. How this question is required to be looked at is clearly stated by the Supreme Court in three important cases.

4. The first case to which reference may be made is a case of Aher Raja Khima v. State of Saurashtra reported in : 1956CriLJ426 . In paragraph 11 of that judgment it is clearly stated that if it appears to the accused person reasonably that by making a confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, that confession cannot be considered to be a voluntary confession. The second case to which reference may be made is a case of Pyare Lal Bhargava v. The State of Rajasthan reported in : 1963CriLJ178 . In paragraph 5 of that judgment the learned Judges observed as under:

The threat, inducement or promise must proceed from a person in authority and it is a question of fact in a each case whether the person concerned is a man of authority or not. What is more important is that the mere existence of the threat, inducement or promise is not enough, but in the opinion of the Court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him; while the opinion is that of the Court, the criterion is the reasonable belief of the accused. The section, therefore, makes it clear that it is the duty of the Court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case.

The third case to which reference may be made is the case of Satbir Singh and Anr. etc. v. State of Punjab reported in : 1977CriLJ985 . In paragraph 27 the Supreme Court observed as under:

27. In deciding whether a particular confession attracts the frown of Section 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind.

The learned Additional Sessions Judge, therefore, should have examined the confession from this particular angle and it was his duty to find out as to whether the confession was voluntary. Unless the confession was voluntary it is useless to go into the question as to whether the confession is true or not. This confession on the face of it appears to be taken by a person in authority and the Postal Superintendent admits that he did hold out an inducement or promise to the effect that only departmental inquiry would be held. Under these circumstances the accused would be in a position where he would feel that by making a confession he would avoid criminal proceedings which are likely to be filed against him. Under these circumstances the confession made before the authority was not a voluntary confession. The learned Additional Sessions Judge, therefore, should have held that the confession was not admissible in evidence. It clearly appears from the judgment rendered by the learned Additional Sessions Judge that not only he did not decide regarding voluntary character or otherwise of the confession but while appreciating the oral evidence on record he took the aid of this confession and thus taking the aid of inadmissible evidence he appreciated the oral evidence and, therefore, the appreciation of oral evidence became vulnerable. The appreciation thus not only became vulnerable but was vitiated as it was mixed up with inadmissible evidence. The learned Additional Sessions Judge throughout was obsessed with the idea that accused No. 1 had made a confession. Taking aid of that confession if one tries to appreciate the oral evidence on record that appreciation is no appreciation at all because the appreciation is bound to lead to an absurd or a wrong result. I may here also state that if the learned Additional Sessions Judge had just tried to look at the confession and examined, he would have found that in the confession accused No. 1 stated that he had made an entry of Rs. 1,000/- in the pass book of Karsan. There was evidence on record that that entry was made by accused No. 2. Further the cash book Exh. 53 showed that on 29-9-1979 there were no currency notes on hand of denomination of Rs. 50/- while in the confession accused No. 1 had stated that he had taken the currency notes of the denomination of Rs. 50/-. Thus there was some contradictory evidence on record produced by the prosecution itself which showed that some part of the confession was untrue. This perhaps escaped the attention of the learned Additional. Sessions Judge. To summarise the law on confession if is required to be clearly understood by all the Courts trying criminal cases that any confession which is recorded even after following the provisions contained in Section 164 of the Criminal Procedure Code the Judge is required to find out as to whether the confession so recorded is voluntary and true. If the Judge comes to the conclusion that the confession so recorded is not voluntary the second question as to whether it is true or not would not arise. But if he comes to the conclusion that the confession so recorded is voluntary he has got to examine it further with a view to find out as to whether the confession is true. If he thereafter comes to a conclusion that the confession so recorded was true there alone that confession could be acted upon. This is so because a person may confess to have committed a crime which in fact he may not have committed for variety of reasons. It may be economic compulsion, it may be a political necessity, it may be to oblige a friend or a relative in order that the friend or the relative may not go to jail who may be the real culprit. Therefore, this statutory provision is made in the Criminal Procedure Code where a confession can never be acted upon unless it is found to be voluntary and true. If this is so for the confession which is recorded under the provisions contained in Section 164 this would be more so when it is orally made or made in writing before some other person who is not empowered to record confession under Section 164.

5. There is a further aspect in regard to the confession. After making the confessions they are retracted at the trial. When the confessions are retracted the Judge though if he comes to the conclusion that the confession is voluntary and true is entitled to act upon it. Yet the rule of prudence requires that he has to act upon the extra-judicial confession or a retracted confession he would generally look for the corroboration. All these principles are required to be borne in mind, while dealing with confessions at the criminal trial.

6. This case also suffers from inherent improbabilities and the whole appreciation of the evidence is not only vitiated because they admitted the confession as evidence but for other reasons as well which I will shortly point out.

7. The prosecution case was that accused No. 1 committed criminal breach of trust in respect of the sum of Rs. 11,000/-. This amount consisted of the three items. The first item consisted of Rs. 1,000/- which was deposited in the post office by one Karsan Kalyan Bhudia who was examined at Exh. 85. The second item was in regard to one Mavji Karsan who was examined at Exh. 106 and the prosecution case was that in regard to this item also the money which was kept separately in the Treasury of the post office was taken away by accused No. 1 and to facilitate that criminal breach of trust he had erased an entry and committed an offence punishable under Section 477A by falsi fying the accounts. The third item was again an item of Rs. 5,000/- which accused No. 1 took away from the post office and the amount belonged to the post office itself.

8. Coming to the first item the learned Additional Sessions Judge accepted the evidence of Valji Laxman. Here a grave error was committed because the prosecution examined one Karsan at Exh. 85 and he stated that the amount of Rs. 1,000/- was deposited by him in the post office. In cross-examination he stated by changing this version that he did not deposit the amount but the amount was deposited by his son Keshavji who was not examined by the prosecution. Thereafter the prosecution examined Valji Laxman and he stated that he had deposited the amount of Rs. 1,000/-. It is here necessary to state that the prosecution did not declare Karsan Bhudia to be hostile witness. If the prosecution had declared him to be a hostile witness, thus giving notice to the defence that they are not going to rely on the evidence of Karsan Bhudia the matter would have been entirely different. Here Karsan Bhudia was examined by the prosecution as truthful witness. Thereafter they examined Valji Laxman and their case was that he was also a truthful witness. The whole evidence, therefore, was self-contradictory and such self-contradictory evidence when was on record the learned Additional Sessions Judge committed a grave error in throwing away the evidence of Karsan Bhudia and accepting the evidence of Valji Laxman.

9. In regard to item Nos. 2 and 3 it is only required to be stated that it was quite likely that the two amounts of Rs. 5,000/- each could as well be taken away by accused No. 2. The reason was on record. Accused No. 1 on the relevant date was on leave. Ultimately the safe of the post office was opened in absence of accused No. 1 after obtaining keys from accused No. 2. Now, therefore, a person who could easily take away the money would be the person who had the keys of the safe. Explanation of accused No. 1, therefore, that misappropriation if any was done by accused No. 2 was probable. After examining the evidence led by the prosecution the Judge should have addressed himself to this aspect of the case as to whether the explanation offered by accused No. 1 is probable. Before answering that question or at the time of answering that question it was unnecessary and the Judge is not entitled to look into the statement of accused No. 2. The error that was committed was that at the time of deciding the case of accused No. 1, the statement of accused No. 2 was read and thereafter the learned Judge thought that he was called upon to decide as to who out of the two accused was telling truth. This is not the correct method of judging the criminal cases. The prosecution succeeds or fails of its own and whatever evidence is produced by the prosecution if is accepted the accused is required to be convicted. If that evidence cannot be accepted and the explanation offered to that evidence is probable the accused is entitled to the benefit of reasonable doubt. At that time the Judge cannot look into the confession which is inadmissible and he cannot take the aid of the statement of the co-accused if it does not fall under Section 30 of the Indian Evidence Act. Because of these errors the learned Additional Sessions Judge came to the wrong conclusion. Under these circumstances this Revision Application is allowed

10. The conviction and sentence passed as modified by the learned Additional Sessions Judge are hereby set aside. The accused is ordered to be acquitted. Fine if paid to be refunded. Bail-bond shall be cancelled. Rule made absolute.


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