Om Parkash, J.C.
1. Roshan Lal, Hari Nand and Yasin, residents of Misarwala, Tehsil Paonta, District Sirmur, were committed, to the Court of Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division, in connection, with the murder of Sant Ram, Forest Guard, who was incharge Majra, forest beat, Tehsil Paonta. The learned Sessions Judge convicted and sentenced Roshan Lal, under Sections 302 and 201 I. P. C., but acquitted Hari Nand and Yasin. Roshan Lal has filed Criminal Appeal No. 12/63 against his conviction and sentence. The Union of India has filed Criminal No. 24/63 against the acquittal ofHari Nand and Yasin. This judgment will dispose of both the appeals.
2. The prosecution case against Roshan Lal, Hari Nand and Yasin, accused, was as follows:
The relations, between Sant Ram and the villagers, including the residents of Misarwala village, had become strained as Sant Ram used to maintain a strict watch over the forest, in the discharge of his, official duties and did not permit the villagers to cut and steal wood from, that forest.
3. Roshan Lal accused, whq had worked, for sometime, as a domestic servant with Hari Nand accused, and had then left his service, was called by the latter and was persuaded, on promise of paying (the arrears of his salary, to assist him (Hari Nand) in stealing wood from the forest. Roshan Lal and Hari Nand had stolen a log of sal wood from the forest, near about' the month of March 1962. Sant Ram had seized that log from the possession of Hari Nand. This had embittered Hari Nand. Determined to avenge himself, Hari Nand had hatched a conspiracy with Roshan Lal and Yasin to murder Sant Ram. The plan was that Sant Ram should be decoyed to Kuiwala forest, on the pretext of apprehending an offender, stealing wood and should be done to death there. It was agreed that Yasin should go to the forest and cut wood and that Roshan Lal and Hari Nand should decoy Sant Ram to the forest.
In pursuance of the conspiracy, Sant Ram was on the nth March, 1962, at about 4 or 5 P. M., decoyed to Kuiwala, forest by Roshan Lal. Yasin was cutting wood there. Sant Ram had snatched the Kulhari from Yasin. But Yasin had taken back the Kulhari and had also snatched the safajang which Sant Ram was, carrying. Yasia had hinted to Roshan Lal that he should strike Sant Ram. Roshan Lal had, accordingly, struck a blow at the neck of Sant Ram, with a darat, which had been supplied to him by Hari Nand, while he was leaving for the forest. Yasin had also given blows at the head and face of Sant Ram with the safajang. Sant Ram had died at the spot. Many articles, such as wrist-watch, belt, purse containing money, were removed by Roshan Lal and Yasin from the dead body. They had returned to their village in the night. Roshan Lal had met Mohammad Ishaq, who was a tutor in Misarwala mosque. In reply to the enquiry, as to wherefrom he was coming at that time of the night, Roshan Lal had informed Mohammad Ishaq that he and Yasin had murdered Sant Ram.
On the morning of the 12th March, Roshan Lal and Yasin had, again, gone to Kuiwala forest. They had buried the dead-body of Sant Ram in a pit in the khala. The belt, cap and other articles, removed from the dead-body, were concealed in a nearby place. The Forest Guard's hammer and the safajang, which were being carried by Sant Ram, were also hidden in the forest. After collecting faggots of wood, Roshan Lal and Yasin, had come back to their village. On their way back, they had met Mohammad Ishaq, who was cutting grass in his land. On Mohammad Ishaq's telling them that, on the previous night, Roshan Lal had informed him that he and Yasin had done to death Sant Ram, Roshan Lal and Yasin had fallen on his feet and had said :--
'Ham se bahut zulm ho gaya hai. Dar asal apko malum hai kih Sant Ram guard ne ghas pati ke liye sare goan ko tang kar rakha tha, is waja se hamne usko mar dala.'
4. Roshan Lal and Yasin had left the village Misarwala after the incident. Roshan. Lal had wandered from one place to another. Yasin had gone to his father-in-law's house, in Baroli Majra.
5. The Conservator of Forests, Sirmur District, was visiting Majra, near-about the 13th March, 1962. Sant Ram was directed, by Forester Nika Ram P. W. 43, to attend the Range Office, Majra on the 12th March, for receiving instructions, in connection with that visit. Sant Ram had failed to turn up oh the 12th March. Forester Nika Ram P. W. 43 went to village Navagaon, where Sant Ram used to reside, for making enquiries why Sant Ram had not attended the office at Majra, as directed. Nika Ram did not find Sant Ram at his residence. He made a search for Sant Ram in the beat but was unable to find him. A concerted search for Sant Ram was carried out by the forest employees but without any success. When all efforts had failed to trace out Sant Ram, Range Officer, Murat Singh P. W. 48 lodged the report Ex. P. W. 48/A, about his missing, at the Police Post, Majra. On the receipt of the copy of the report at Police Station Paonta, S. H. O. Rajinder Singh P. W. 54 had proceeded to Majra. After preliminary investigation, he had sent the report Ex. P. W. 54/A, to the Police Station, to the effect, that Sant Ram had been abducted by some person or persons with the object of mudering him.
Further investigation revealed that Sant Ram had been murdered. Suspicion fell on Rishal Lal, Yasin and Hari Nand accused. Hari Nand and Yasin were arrested on the 25th and 26th March, 1962, respectively. Roshan Lal was arrested on the 5th April, 1962. While in police custody, Yasin had made the statement Ex. PB, that he would discover the hammer. In consequence of this statement, Yasin had discovered the hammer Ex. P. 3 from Kuiwala forest. In consequence of other disclosure statements Yasin had discovered the gainti Ex. P. 1 and the axe Ex. P. 5 from his own house, the kassi Ex. P. 4 from the tapri of Dasondhi P. W. 19 and the pair of shoes Ex. P. W. 31/1 from the house of his father-in-law.
Roshan Lal had, also, while in police custody, made disclosure statements. In pursuance of the statement Ex. P H, he had discovered, lantern Ex. P. 2 and the darat Ex. P. 6 from the house of Hari Nand. He had discovered the torch Ex. P. 7 from his own house. In consequence of the statement Ex. P. Q., Roshan Lal had discovered the dead-body of Sant Ram from Kuiwala forest and had also discovered some ashes, buttons, a belt and blood stained earth, from a nearby place. In consequence of the statement Ex. PW, he had discovered the handle and blade of safajang, the belt and the cap, respectively Ex. P. 22 Ex. P. 23 and Ex. P. 24. The belt Ex. P. 25, the measuring tape Ex. P. 26, one button Ex. P. 27 and two buckles Ex. P. 28 were discovered, by him, in consequence of the statement Ex. PZ. The wrist-watch Ex. P. W. 28/1 was discovered, at the instance of Roshan Lal, from Bhupal Singh P. W. 28. The shirt Ex. P. 9 and the tehmat Ex. P. 10 were taken into possession, by the Police from his person, while the coat Ex. P. 8 was recovered from his house.
6. Roshan Lal had expressed his desire to make a confession. He was produced before Shri Bishan Dass P. W. 10, Magistrate 1st Class, Nahan, on the 15th April, 1962, for the recording of the confessional statement. Shri Bishan Dass did not record the statement on that day but committed Roshan Lal to judicial lock-up and directed that he be produced on the 16th April. Accordingly, Roshan Lal was produced on the 16th April and his statement was recorded by Shri Bishan Dass, after observing the requisite formalities, prescribed by law. The statement is Exhibit P.FF.
7. The dead-body of Sant Ram, which was discovered from Kuiwala forest, at the instance of Roshan Lal accused, was sent to Civil Hospital, Paonta, for postmortem examination. Doctor Durga Ram P. W. 14 had performed the postmortem examination, on 7.4.62. The Doctor had found a large number of injuries on the head, face and neck of the dead-body. The spinal cord and the wind pipe had been cut. In the opinion of Doctor Durga Ram, death was due to shock, haemorrhage and the multiple injuries and the severance of spinal cord and wind pipe and large blood vessels like carotids. Ex. P. CC contains the result of the postmortem examination, conducted by Doctor Durga Ram.
8. The various articles, recovered and discovered, during the course of investigation, were sent to the Chemical Examiner and Serologist. A number of articles were found to be stained with human blood, vide reports Ex. P. GG and Exhibit P. HH.
9. On the basis of the above facts and circumstances, Roshan Lal and Yasin accused were committed, under Sections 364, 302 and 201 I. P. C. and Hari Nand accused was committed under Sections 302/109 and 364/109 I. P. C.
10. The accused denied the charges, levelled, against them. They denied that their relations with Sant Ram were strained or that they had hatched any conspiracy to kill him or had killed him. Roshan Lal and Hari Nand accused denied that they had stolen any log, of sal wood and that Sant Ram had seized the log from the possession of Hari Nand. Yasin accused denied that he had. made any confessional statement to Mohammad Ishaq P. W. 11 or had discovered the gaint Ex. p.i, or the hammer Ex. P.3, or the kassi Ex. P.4 or the axe Ex. P.5, or the pair of shoes Ex. P. W. 31/1. Roshan Lal accused also denied that he had made a confsesional statement to Mohammad Ishaq. He, further, denied that he had made any disclosure statement or had discovered the dead-body of Sant Ram or any other article. Roshan Lal admitted that he had made the confessional statement Ex. P.FF but pleaded that the police had beaten him and had coerced him to make the statement. None of the accused produced any defence evidence.
11. The learned Sessions Judge held that the prosecution had failed to prove that Hari Nand accused had stolen a log of sal wood from the forest or that any log of wood had been seized by Sant Ram from his possession. It was, further, held that there was no evidence connecting Hari Nand with the murder of Sant Ram. So far as Yasin accused was concerned, the learend Sessions Judge did not believe the evidence that Yasin had made a confession to Mohammad Ishaq P. W. 11. He accepted the prosecution evidence that the gainti Ex. p.1, the kassi Ex. P-4, the axe Ex. P.5 and the shoes Ex. P. W. 31/1 were discovered at the instance of Yasin but held that none of the aforesaid articles was proved to be connected with Sant Ram or his murder. Hammer Ex. P.3, discovered at the instance of Yasin, was held to belong to Sant Ram. But this fact alone, in the opinion of the learned Sessions Judge was not sufficient for fastening the guilt on Yasin. As a result of his aforesaid findnigs, the learned Sessions Judge acquitted Hari Nand and Yasin of the charges levelled against them.
12. So far as Roshan Lal accused was concerned, the learned Sessions Judge held (1) that he was seen following Sant Ram to Kuiwala forest on the 11th March 1962, at about 5 P. M., (2) that on the night of nth March, he had confessed to Mohammad Ishaq P. W. 11, that he had murdered Sant Ram, as he use to harass the villagers and did not permit them to take grass and leaves from the forest, (3) that he had told Om Parkash P. W. 3 that search should not be made for Sant Ram, as he had been finished, (4) that he had made statements, while in police custody, which had led to the discovery of the dead-body of Sant Ram, his belt, cap and other articles from Kuiwala forest, and (5) that the confessional statement Ex. P.FF was made by him voluntarily and was true. On the basis of the above findings, the learned Sessions Judge held Roshan Lal guilty under Sections 302 and 201, I. P. C. and sentenced him to undergo imprisonment for life for the former offence and three years' rigorous imprisonment for the latter offence.
13. Roshan Lal has appealed against his conviction and sentence, while the Union of India has appealed against the acquittal of Hari Nand and Yasin.
14. The appeal of Roshan Lal may be taken up first. There is no direct evidence on record, that Roshan Lal had murdered Sant Ram. The main piece of evidence, relied upon, by the prosecution against him, is his confessional statement Ex. P.FF. This statement is a detailed one and gives a graphic account of the occurrence. The statement is to the following effect:
Roshan Lal was employed by Hari Nand accused. He had given up service after about 6 months. Sometime later, Hari Nand had sent for him and had asked him to do some service for him. Hari Nand had promised to pay arrears of his wages to Roshan Lal. Hari Nand and Roshan Lal had illegally cut a sal tree from the forest and had brought the log to the house of Hari Nand in the bullock cart of Alah Din. That log was seized by Sant Ram. Hari Nand had, on account of the seizure of the log, come to harbour a grudge, against Sant Ram. One day, Sant Ram had come to the shop of Salig and had from there gone to the Court-yard of Hari Nand. He had wished Hari Nand 'Jai Ram ji ki'. Hari Nand had told him that he would not accept his 'Jai Ram ji ki'. Sant Ram had sat down in the verandah of Salig and had told Hari Nand that he was angry with him because he (Sant Ram) had seized the log and he had to pay compensation. Sant Ram had taken out his purse and had offered money to Hari Nand for paying the compensation.
Hari Nand had refused to accept any money from Sant Ram. Sant Ram had then gone inside the house of Salig. Hari Nand had pointed out to Roshan Lal that Sant Ram had money with him and had suggested that he should be decoyed to the forest on some pretext and killed. Hari Nand had, further, suggested, that it should be represent, ed to Sant Ram that Ismail, son of Munshi, was in the habit of stealing wood from the forest and that they would assist him in apprehending Ismail. Hari Nand had given a darat to Roshan Lal who had accompanied Sant Ram to Kuiwala forest. Yasin accused, who had preceded them to the forest, was cutting a tree. Sant Ram had caught hold of the axe of Yasin and had gone downwards. Coming from behind, Yasin had obstructed the way of Sant Ram and had caught hold of the axe and safajang, which Sant Ram was carrying. Yasin had hinted to Roshan Lal that he should strike Sant Ram with the darat. Roshan Lal had taken out the darat from under his coat and had given a blow at the neck of Sant Ram. After receiving the blow, Sant Ram had tried to run away. He was pusued by Roshan Lal and Yasin. Yasin had given blows on the face, head and neck of Sant Ram with the safajang.
Roshan Lal had also given blows on the neck which was practically severed from the trunk. The purse, wristwatch, the belt and other articles were taken off the dead-body of Sant Ram. A torch was taken out of the haversack, which was burnt. Roshan Lal and Yasin had, then, left the place of occurrence. The night had fallen. Yasin had gone to the house of Mohammad Ishaq. Rosan Lal had gone to the house of Hari Nand and after taking a kassi and a lantern had come back. On the way, he had met Mohammad Ishaq, who had inquired from Roshan Lal where he was gping, at that time of the night. Roshan Lal had told him that he had killed Sant Ram and was going to bury his dead-body. Yasin had also joined Roshan Lal and both of them had proceeded to the forest. But they returned from the way, as they had felt frightened. They decided that they would bury the dead-body in the morning. They had gone to the forest on the next day, and after digging a pit, had buried the dead-body of Sant Ram in Kuiwala forest. The Forest Guard belt, the steel measuring tape and other articles were hidden in a place near the dead-body. Roshan Lal and Yasin cut faggots of wood and returned to the village. They had met Mohammad Ishaq who was cutting grass in his land. Mohammad Ishaq had enjoined upon them not to disclose the incident to any person. Yasin had left for his father-in-law's house in Baroli Majra on the next day. Roshan Lal had left for Chuhrpur, three or four days after. He had pledged the wristwatch taken from the dead-body, with Bhupal of Rurki.
15. The above confessional statement implicates Roshan Lal fully in the murder of Sant Ram. The question is whether the confessional statement was made voluntarily and is true. Shri BishanDass P. W. 10, the Magistrate, who had recordedthe confessional statement, states that he hadsatisfied himself that Roshan Lal was making thestatement voluntarily. The Magistrate had takensteps and abundant precautions to ensure andsatisfy, himself that Roshan Lal was making thestatement of his own free will. Roshan Lal wasproduced before the Magistrate on the 15th April.The Magistrate did not record the statement onthat date. He committed Roshan Lal to judiciallock-up and directed that he be produced on the16th. Roshan Lal was produced on that date. TheMagistrate got the hand-cuffs removed and sentaway the police from the premises of the Court.He, then, explained to Roshan Lal, that he wasnot bound to make a confession and that if hemade one, it might be used, as evidence, againsthim. The Magistrate assured Roshan Lal, thatafter the recording of his statement, he would becommitted to the judicial lock-up and not to thepolice custody. After explaining these points theMagistrate gave about one and a half hours toRoshan Lal for reflection, whether or not he shouldmake a statement. After that interval, RoshanLal again expressed his desire to make the confession and made the statement Ex. P.FF. Hewas committed to judicial lock-up after the recording of the confession.
16. In the Committing Court, Roshan Lal had denied that he had made the statement Ex. P.FF, but in the Sessions Court, he admitted the making of the statement. His plea, in that Court, was that police had beaten him and had coerced him to make the statement. This plea remained in the air. The record does not disclose anything which may lead to the inference that police had subjected Roshan Lal to any beating or pressure, for the purpose of extracting confession. It is true that it would be idle to expect that an accused person should produce definite and positive propf about beating or pressure, as in most cases, such proof is not available. It is, also, true that the word 'appear' in Section 24, Evidence Act imports a lesser degree of probability than proof. But the laxity of proof, permitted, does not warrant a Court's opinion based on pure surmise; vide Pyare Lal v. State, AIR 1963 SC 1094. The accused must point out some evidence or circumstances, on which, a well-grounded conjecture, at least, that there was beating or pressure, with respect to the making of the confession, may reasonably be based. The only circumstance, pointed but, on behalf of Roshan Lal, to show that the confession was the result of coercion, was that though the investigation of the case was complete by the 9th April, yet he was detained in police custody till the 15th April, without any ostensible justification.
The suggestion was that the purpose of detaining him in police custody, after the 9th was to exert pressure on him for making a confesison. S. H. O. Rajender Singh P. W. 54 refuted, on oath, the allegation that Roshan Lal was subjected to pressure while in police custody. Rajender Singh explained that Roshan Lal was not sent to the judicial lock-up before the 15th April, as he had been remanded to police custody upto that date. This explanation, for keeping Roshan Lal in police custody, after the 9th April, cannot be said to be unreasonable. It may be pointed out that Shri Bishan Dass P. W. 10, who had recorded the confessional statement Ex. P.FF, had taken precautions to remove completely the fear or influence, if any, of the police, from the mind of Roshan Lal, before recording the statement. The Magistrate had committed Roshan Lal to judicial lock-up on the 15th April and had recorded the confessional statement on the next day twenty four hours after. He had assured Roshan Lal that he would be committed to judicial lock-up, after the recording of the confession.
In the circumstances of the case, the mere fact that Roshan Lal was detained in police custody from the 9th to the 15th April, though the investigation was complete on the 9th, cannot lead to the inference that he was subjected to any pressure, by the police. The authorities, cited on behalf of Roshan Lal, are distinguishable, on facts. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637, the accused Sarwan Singh was kept in police custody from the 25th Novembet until the 3oth November, without any explanation or justification, though he was, inclined to help the police on the very first date i.e., 25th Sarwan Singh was produced before the Magistrate on the 3oth November from police custody. His confession was recorded on the same day. He was not committed to judicial lock-up, before recording the confession. Only about half an hour was given to him to decide whether or not to make the confession. As already pointed out, in the present case Roshan Lal was committed to judicial lockup, before the recording of the confession and was given more than twenty-four hours for reflection whether or not to make the confession.
In Sarwan Singh's case, the Magistrate, recording the confession had not taken any steps to remove the influence of the police from the mind of Sarwan Singh, while in the present case, the Magistrate did take precautions to remove such influence from the mind of Roshan Lal. In Vidyamati v. State, AIR 1951 Him Pra 82, another ruling cited on behalf of Roshan Lal, allegations made by Vidyamati, of the police having subjected her, her father and her uncle, to torture for the purpose of eliciting confession from her, were supported by evidence which was Believed by the Court. In the present case, there is no evidence or any circumstance which may even remotely suggest that Roshan Lal was beaten, or coerced to make the confession. Vidyamati's case is distinguishable on another ground. Vidyamati was/produced before the Magistrate from police custody. She was not committed to judicial lockup before the recording of the confession. She was given hardly half an hour for reflection. She was committed to police custody, even after the recording of the confession. In the instant case, Roshan Lal was committed to judicial lock-up before the recording of the confessional statement, and was assured that he would be committed to judicial lock-up after the recording of the confession.
17. The second circumstance, relied upon, against the voluntariness of the confession Ex. P.FF, was that an illiterate villager, like Roshan Lal could not have made such a detailed and coherent statement. It was suggested that the statement must have been tutored to him by the police. In my opinion, no amount of tutoring could possibly have enabled Roshan Lal to make such a detailed statement, narrating events, in a strikingly proper sequence. The statement could have been made only by a person who had taken actual part in the events which he narrated. Roshan Lal may not be literate but he appears to be quite an intelligent young man. Reliance was placed on the following observations, made in Mst. Bhukhin v. Emperor, AIR 1948 Nag 344 :
'The substance of the confession (Ex. P.24) of Bhukin has been given in paragraph 5 of out judgment. The confession is full and detailed and the facts have been stated in natural and proper sequence. The entire prosecution case has been set out therein. Everything necessary for the prosecution to establish a charge of murder has been admitted. .......
Bhukin is an illiterate and ignorant woman. In our opinion it was impossible for her to make a coherent and a complete statement, which she did unless she was tutored by some one familiar with the requirements, of the law. The internal evidence furnished by the contents of the confession leave no room for doubt that it was not made voluntarily.' P. 348.
18. A reading of the authority makes it abundantly clear that the fact that confession of Bhukin, was full and detailed was not the only ground for its rejection. There were other grounds also. Bhukin, an ignorant woman, had been detained for 3 or 4 days even before her arrest. She was not permitted to go to her house. She was produced before the Magistrate from police custody and was not committed to judicial lock-up, before, recording the confession. The above facts led to the inference that the confession had been made under police influence and was not voluntary. In State v. Waghela Hiranbai, AIR 1951 Kutch 92, another ruling cited, the confession was, no doubt, a detailed one and built-up the entire prosecution case, but the accused had introduced facts which were not within her knowledge. That indicated that the confession had been tutored. In the instant case the confession does not contain any detail which was not within the knowledge of Roshan Lal.
19. The conclusion from the above discussion, is that the confession Ex. P.FF was made by Roshan Lal voluntarily. A comparison of the confession with the rest of the prosecution evidence and the probabilities of the case, goes to show that the confession is also true. (His Lordship then discussed the evidence and the circumstances and proceeded further:)
20-25. The confession Ex. P.FF, which was voluntarily made, and is true, was retracted by Roshan Lal accused, in the Committing Court. It is well-settled that there is no legal bar in basing a conviction on a retracted confession, if it was voluntarily made and is true. But it is, equally, well-settled that the rule of prudence and practice requires that to form the basis of conviction, a retracted confession should be corroborated, in material particulars, by independent evidence, vide Balbir Singh v. State of Punjab, (S) AIR 1957 SC 216 and AIR 1963 SC 1094. Because of this rule of prudence and practice, it becomes necessary to examine whether the confession Ex. P.FF, which was retracted, is corroborated, in material particulars, by independent evidence. (Then His Lordship examining evidence stated:)
26. The judicial confession Ex. P.FF, Which was made by Roshan Lal voluntarily, and is true stood corroborated, in material particulars, by the discoveries, made in pursuance of the statements, made by him, of the dead-body of Sant Ram, the belt Ex. P.23, the cap Ex. P.24 and the safajang Ex. P.22 and other articles belonging to Sant Ram from the place of occurrence, and the discovery of the wrist-watch Ex. PW.28/1, belonging to Sant Ram from Bhupal Singh P. W. 28 and the evidence of Om Prakash P. W. 3. The requirements of the rule of prudence and practice that a retracted confession should be corroborated in material particulars were satisfied in the instant case. The confession Ex. P.FF, though retracted, could form the basis of conviction. The confession fully establishes that Roshan Lal had murdered Sant Ram and had concealed the dead-body and other articles in Kuiwala forest. He was rightly convicted under Sections 302 and 201, I. P. C. His conviction and sentence are maintained.
27. The appeal of the Union of India, against the acquittal of Yasin and Hari Nand accused, may now be taken up. The principles, which govern an appeal against acquittal, are now well-settled and have been very clearly set forth in M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, as follows :
'There is no doubt that the power conferred by Clause (a) of Section 423(1) which deals with an appeal against an order of acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's power in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding, is based On an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals its approach is governed by the over-riding consideration flowing from the presumption of innocence.'
28. The aforesaid principles were reiterated in Noor Khan v. State of Rajasthan, AIR 1964 SC 286. In Harbans Singh v. State of Punjab, AIR 1962 SC 439, it was said that an order of acquittal should be set aside only if the view taken by the trial Court is clearly unreasonable.
29. The appeal of the Union of India, against the acquittal of Yasin and Hari Nand accused, is to be considered, keeping in mind the principles, enunciated above. The evidence, relied upon by the prosecution, against Yasin accused, consists of the confessional statement Ex. P.FF, made by Roshan Lal, disclosure statements, made by Yasin, and the discoveries, made in consequence of those statements and the extra-judicial confession, alleged to have been made to Mohammad Ishaq, P. W. 11. The confession Ex., P.FF, may be taken into consideration against Yasin, under Section 30 Evidence Act, but the question is how far that confession can be used against him. In other words, the question is how far confession of an accused can be used against a co-accused. The question was answered in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159, as follows :
'The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of confession he would not be prepared to accept.'
30. So, a confession of a co-accused can only foe used to lend assurance to other independent evidence, sufficient, for sustaining a conviction. (Then His Lordship after examining the evidence against Yasin stated:) There is no independent evidence establishing the guilt of Yasin. The confessional statement Ex. P.FF, made by Roshan Lal, a co-accused, therefore, cannot be used against him, in the light of the principles, laid down in AIR 1952 SC 159, supra. The finding of acquittal recorded by the learned Sessions Judge in favour of Yasin cannot be said to be erroneous or unreasonable. The finding cannot be interfered with.
31. The learned Sessions Judge was also justified in acquitting Hari Nand accused. Against Hari Nand, reliance was placed on two circumstances. Those were that Sant Ram had seized stolen log wood from his possession and he bore a grudge against him and had thus a motive to murder him, and that the lantern Ex. P. 2 and the darat Ex. P.6 were recovered from his house. It has already been shown, in an earlier part of this judgment, that the prosecution had failed to prove that any log of wood was seized from the possession of Hari Nand by Sant Ram. It is, also, to be noted that Sant Ram had seized wood from the possession of other persons also and had made reports against them; vide the statements of Amar Nath P. W. 1 and Murat Singh P. W. 48. So, Hari Nand was not the only person from whosepossession wood was seized by Sant Ram and whowas aggrieved, even if it be assumed that SantRam had seized wood from his possession. Therewere other persons from whose possession woodhad been seized and who were equally aggrieved.The forest offence, alleged to have been committedby Hari Nand, was compoundable, on payment ofcompensation. It is difficult to believe that HariNand would have hatched a conspiracy to murderSant Ram merely because the latter had made areport against him for an offence which Could becompounded on payment of a small amount ofmoney. There is no evidence that the relationsbetween Sant Ram and Hari Nand were strained.On the other hand, Om Parkash P. W. 3 admittedthat Hari Nand had good relations with Sant Ram.The darat Ex. P.6 and the lantern Ex. P.2 havenot, in any way, been connected with the murderof Sant Ram. The confessional statementEx. P.FF, cannot be used against Hari Nand.Thus, there is no evidence in support of the chargeslevelled against Hari Nand. He has been rightlyacquitted.
32. The result of the above discussion is that both the appeals Nos. 12 and 24 of 1963 fail and are dismissed. The original judgment will be placed on the record of Appeal No. 12/63. A copy will be placed on the record of Appeal No. 24/63.