J.N. Bhat, J.
1. Razak Khizar appellant was tried for an offence under Sections 302/394 RPC by the learned Sessions Judge Srinagar. By his order dated 19-1-66 the learned Sessions Judge has acquitted the accused under Section 302 RPC but has convicted him under 'Section 201 RPC and sentenced him to five years rigorous imprisonment and to a fine of Rs. 100. About the offence under Section 394 RPC the learned Sessions Judge has not returned any express finding, but from his judgment it can be concluded that he has not found that offence proved against the accused. Against his conviction and sentence Razak Khizar has filed an appeal. The State has also Bled an appeal against the order of the learned Session Judge acquitting the accused under Sections 302 and 394 RPC.
2. The facts that have led to the convietion of the accused-appellant are as under;
3. Razak Khizar (who hereinafter will be referred to as the accused) was a cook-cum-bearer in the Embassy Hotel situate at Dalgate Srinagar. He performed the duties of Chowkidar also. On 1st June 1964 a visitor by name R. Mohan from outside the State was brought to the hotel by one Ghulam Mohd. Shala, a Commission agent, P. W. 2. He was given room No. 19 and he stayed in the hotel till 7th June 64. The accused attended on this visitor. On the 8th June the headless body of a human. being was discovered at Chinarbagh Bund. A ClD constable, who was no other than the father of the accused, by name Ramzan Khizar, informed the Kothibagh thana about the incident.
The police reparied to the scene and prepared a seizure list Ex. PDI of the headless body. Investigation started. The hotel people made inquiries on 8th June but no trace of the visitor R. Mohan was found. On the 8th June room No. 19 of the Hotel was searched and whatever articles were recovered from that room, a seizure list was prepared which is marked Ex. PB. On 9th June a report was lodged by Janki Nath Jinsi Manager of the Embassy Hotel with the DSP Syed Wali Shah about the disappearance of the visitor, R. Mohan. This report is marked Ex. PA. In the afternoon the police were informed that a human head was lying in a latrine at Arampura Rainawari. The police went on spot, recovered the head and prepared the seizure list Ex. PP. The accused was interrogated because he was suspected to have something to do with the disappearance and possible murder of R. Mohan.
In the afternoon of the 10th the accused made a statement which was reduced to writting and which is marked Ex. PX. When this statement was reduced to writing, three gentlemen, namely, Abdul Kabir, PW 12, Som Nath PW 18 and Mohd. Ismail were sent for by the police. On the basis of this document Ex. PK the following recoveries were made at the instance of the accused. One blood stained bag gunny P 1 from the attic of the Embassy hotel which was seized (Ex. PH/1). From the hall of the hotel which was near this attic some blood stains were removed and their seizure list Ex. PS was prepared. At the instance of the accused from the kitchen of the hotel out of a number of knives the accused produced one knife which is Ex. P 2 and a seizure list thereof was made vide Ex. PD. There were some blood stains on this knife which were removed by the police. the instance of the accused further, a pair of pants belonging to the accused was recovered from one PW Ghulam Mohd. Dhobi PW 23. The pants had been washed but they still contained some stains of blood.
At the instance of the accused the father of the accused Mohd. Ramzan Khizar produced Rs. 390 in Rs. 10 currency notes which bear the marks V 27-778831 to V 27-778846 and V 27-778355 to V 27-778377. A seizure list of these notes produced by the father of the accused was prepared which is marked EX PF,
At the instance of the accused on the same day the boat of one G.M. Karnai P. W. 11 was seized. The accused pointed out this boat as having been used by him for carrying the deceased R. Mohan to the place where he was alleged to have been murdered. The police also seized a shirt worn by the accused by means of a seizure list Ex. PKI and a Rs. 10.00 currency note No. V 27-778848. Further, from the garments worn by the deceased another currency note No. V 27-778351 was recovered which was seized by means of Ex. PQ by the police. One handkerchief was recovered from an Almirah of the hotel at the instance of the accused which was seized by means of Ex. PL.
All these blood stained articles recovered namely, the bag, butcher's knife, the shirt, the handkerchief, and the blood stains recovered from the hall near the attic were sent to the Chemical Examiner along with the pair of pants recovered from GM Dobi. The Chemical Examiner was of the opinion that all these articles as also blood stains removed from the knife and the hall and were stained with human blood. About the pair of trousers the chemical Examiner was of the opinion that due to the pants being washed, the blood had disintegrated and therefore, no opinion could be given about these stains on the pants which persisted on them despite their being washed. The report of the Chemical Examiner is marked Exs. B/2 and C/2.
4. On the basis of these recoveries which were made at the instance of the accused, the police preferred a challan against the accused under Sections 302 and 394 RPC. The prosecution produced 23 witnesses in support of its case. The accused denied having to do anything with the murder and robbery committed with respect to the deceased. He produced no defence. The learned Sessions Judge convicted the accused as already stated under Section 201 but acquitted him under Section 302 RPC. In his judgment the learned Sessions Judge has entirely forgotten to record any finding, with respect the other charge under Section 394 RPC.
5. We heard the learned Counsel for the accused in detail. We heard the Advocate General also in the appeal preferred by him against the acquittal of the accused under Sections 302 and 394 RPC. The learned Advocate for the accused was also heard at length in this acquittal appeal. As both cases arise out of the same facts and the same judgment, this judgment will dispose of both the appeals.
6. Before we discuss the arguments of the learned Counsel for the appellant, we would like to record wherever necessary in extenso and otherwise summarize the findings of the learned Sessions Judge. The learned Sessions Judge has held the following facts as proved in this case. That this visitor who called himself R. Mohan was brought to the Embassy Hotel on 1st June 1964 by one Ghulam Mohd Shala a tourist agent. He resided in the hotel. During this interval the accused was a constant companion of the deceased. He made the deceased purchase certain things from the market. A shoe maker by name Mohd. Shafi, a watch maker, by name Abdul Gani and a photographer Ali Mohd Badyari deposed that the accused accompanied the deceased when the latter went to make purchases from them. On 6th June the accused accompanied the deceased to Pahalgam and they came back together vide the statement of Parmeshwari Lal P. W. 19. The learned Sessions Judge has held:
Therefore, there is no doubt in my mind that the accused and the deceased were often moving together and the accused was acting as guide when the deceased had to make purchases. When the deceased went to Pahalgam on the 6th June 1964 he carried the accused along with himself. Both of them returned from that place on the same day in the same bus. All these facts are fully established and I have no doubt in my mind that the accused had created some influence over the deceased. This also stands to reason that because of these purchases the accused person might have come to possess knowledge about the cash which the deceased was carrying with himself....
The learned Judge has further held on the recoveries as under:
That the information supplied by the accused to the police led to the recovery of the blood stained gunny bag, blood stamed handkerchief, blood stained butcher's knife and the currency notes there is absolutely no doubt in my mind. There is no reason to disbelieve the depositions of the two witnesses Som Nath and Abdul Kabir on this point. Both these witnesses are very respectable persons and do not bear any grudge or enmity against the accused. Abdul Kabir is the owner of the Odeon Hotel and Som Nath is the owner of Harker and Co. (a chemist's shop). These two witnesses were summoned by the police and to them also the accused furnished information which subsequently led to the recoveries. From the testim6ny of these witnesses it is very clear that the accused pointed out the places wherefrom the blood-stained gunny, butcher's knife and the currency notes were recovered. It was the accused who led the police party and these witnesses to the places mentioned above. The blood-stained gunny bag was recovered from the attic of the Embassy Hotel. This appears to be a small dark room. The accused himself went inside this dark small room and took out the blood stained gunny bag from there. He then led the police party and the witnesses to the kitchen of the hotel and it was there that he handed over the blood-stained butcher's knife to the police. The blood-stained handkerchief was also handed over by the accused to the police. The accused then led the police party and these witnesses to his own boat and asked his father to hand over the money to the police. The accused also led the police party and the witnesses to the house of the washerman and it was from the washerman that the pant was recovered. In his statement the accused has denied having furnished any information or having pointed out the places from where the recoveries were made. In my opinion there is no reason to disbelieve the depositions of Som Nath and Abdul Kabir witnesses...It is therefore found established that the recoveries of the articles mentioned above were made in consequence of the information furnished by the accused himself. From the report of the Chemical Examiner it is clear that the blood stains of some of these articles were of human blood. From the deposition of Mr. Parey Munsiff Magistrate P W it is clear that soon after the recoveries were made, the recovered articles were safely put in bottles which were at once sealed. These seals were intact when these articles were produced before Mr. Parey Munsiff Magistrate for transmission to the Chemical Examiner. He took particular care to seal afresh these articles. The PP is on firm ground in his argument that prosecution has fully established this part of its story....
7. These are the findings of the learned Sessions Judge.
8. Before us the whole attack of Mr. Chowdhury was that Ex PX was a document manufactured by the police itself. It was not at the instance of the accused that this document had been prepared. The recoveries alleged to have been made in pursuance of this document were faked. The whole scene was arranged by the police while investigating this case. In fact even though the recoveries would be held to have been made, they were not made at the instance of the accused. His further argument was that Ex. PX was inadmissible in evidence and lastly he argued that the facts proved in this case did not warrant a conviction either under Section 302 or Section 394 or even under Section 201 RPC.
9. On the factual side though Mr. Chowdhury read from the relevant statements pertaining to recoveries in extenso before us, his argument was not at all convincing. He pointed out a few minor discrepancies in the evidence of the prosecution witnesses, which are so insignificant that no notice need be taken of them. But as he has laid very great stress on these discrepancies they may be mentioned. After discussing the discrepancies the judgment proceeds:
In our opinion these discrepancies are of such a minor nature that they do not deserve any serious consideration. The witnesses have been examined by the learned Sessions Judge who has returned a categorical finding on facts which has been reproduced verbatim above. We are in full agreement with the findings of fact arrived at by the learned Sessions Judge and we need not, therefore, discuss the statement of each witness afresh. Therefore, on fact which is proved is as follows.
10. That the visitor R. Mohan remained in the Embassy Hotel from 1st June 1964 to 7th June 1964. During this time he was accompanied by the accused while he went out to make purchases etc. He was accompanied by the accused on the 6th June to Pahalgam and back. On the 7th June the visitor was in the hotel again. He took his evening meals there. After he took his meals he was brought to the hotel manager Janki Nath by the accused and the deceased paid Rs. 20 to the Manager on account of his bill. The visitor thereafter returned to his room No, 19 but was found missing in the morning of the 8th. On the 8th when he was not found in the hotel, Janki Nath P W asked the accused where the deceased had gone. The accused told him that he had gone out (Vide page 7 of the paper book).
In the afternoon the dead body of the deceased without the head was recovered at the Chinar Bagh Bund which was identified by Janki Nath and the accused. On the 9th morning the accused was taken by the police. In the afternoon of the 9th the head of the deceased was recovered from a latrine at Arampura Rainawari which was seized by the police. The head was got stitched by the police to the body. Different photographs were taken of the head and the body of the deceased separately as well as the entire body when the head was stitched to it. The case created a public uproar as a visitor had been murdered and that too in a brutal manner. On the 10th the accused gave a clue of this murder and robbery to the police. The police investigated this case, sent for some respectable witnesses in the locality. Out of them two witnesses Som Nath and Abdul Kabir have been produced as P. Ws. In the presence of these witnesses the accused made the police record a statement Ex. PX which was signed by these witnesses as attesting witnesses. 'Later on at the instance of the accused the following recoveries were made:
11. From the attic of the hotel which was closed and was a dark room a blood stained sunny bag Ex. PI was recovered. This gunny bag, according to the accused, was used for carrying the head of the deceased.
(2) Some blood stains were recovered from the hall of the attic.
(3) A blood-stained butcher's knife was produced by the accused Ex. P 2 from amongst a number of knives in the kitchen.
(4) A blood stained handkerchief Ex. P 10 was recovered at the instance 'of the accused from the kitchen.
(5) Further a ten rupee currency note bearing mark V 27-778351 was recovered from the person of the deceased. Another currency note of Rs. 10 marked V 27-778848 was recovered from the person of the accused. Currency notes worth Rs. 390 of Rs. 10 each were produced by the father of the accused from his boat which bore numbers V 27-778831 to V 27-778846. A pair of pants which was besmeared with stains was recovered at the instance of the accused from Ghulam Mohd. Dobi PW. From the person of the accused a shirt was recovered which contained blood stains both at the front and at the back. The boat of G.M. Karnai was seized at the instance of the accused as having been used by him while carrying R. Mohan from the Embassy Hotel to Chinar Bagh Bund. As already stated, the blood stains on all these articles and otherwise recovered from the hall of the hotel except the pair of pants recovered from G.M. Dobi were round to be besmeared with human blood. The stains on the pants could not be identified because they had disintegrated. That R. Mohan was murdered and his head chopped off is abundantly proved in this case. On the basis of these proved facts we have to see what offence, if any, is made out against the accused. The learned Sessions Judge has, after holding the above facts proved, referred to some authorities and laid down the tests that can be held applicable to case like the one which are based on what is called circumstantial evidence and then come to the conclusion that unless these facts are not sufficient to fasten the guilt of murder on the accused. He has referred to certain authorities also. He has, however, found that these facts do constitute an offence under Section 201 RPC.
12. We are constrained to remark that the learned Sessions Judge has not appreciated or applied the law correctly to this case. He has without giving any cogent reasons why the offence of murder cannot be held proved on this evidence, held it to be insufficient.
13. We shall now discuss the objections of the learned Counsel for the accused in this case. According to him this case is based on what is known as circumstantial evidence. Gibson Ch. J. in Com. v. Harman 4 Pa. 269 has given a beautiful analysis of what is circumstantial and positive evidence. While addressing the jury he has said: 'Circumstantial evidence is in the abstract nearly, though perhaps not altogether, as strong as positive evidence; in the concrete it may be infinitely stronger. A fact positively sworn to by a single eye witness of blemished character is not so satisfactorily proved as a fact which is the necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility.'
14. He has further shown that even what is called positive evidence is only circumstantial evidence. He has given a beautiful illustration of a murder by a gun shot. He says: 'You did not see the ball leave the gun, pass through the air, and enter the body of the slain; and your testimony to the fact of killing is thereby only inferential-in other words only circumstantial.' This inferential evidence is said to be direct.
15. Circumstantial evidence is evidence which without going directly to prove the existence of a fact gives rise to a logical inference that such a fact does exist. (Vide 31 CJS 306).
16. Law reports are replete with cases on circumstantial evidence. Superficially viewed, various authorities seem to speak in discordant voices; that is because what inference should be drawn from a given set of facts is essentially a question of fact. Each decision depending On the facts of that case is likely to only emphasize on one or the other principle that bear on the application of the circumstantial evidence. The true rule is that the circumstances alleged must be established by satisfactory evidence as in the case of other evidence and the circumstances proved must be conclusive in character. It has been repeatedly held that the chain of circumstances established must be so complete as to leave no reasonable doubt about the guilt of the accused.
While it is true that there should be no missing links in the prosecution case, it is not the law that every one of the links must appear on the surface of the evidence adduced. Some of these links may have to be inferred from the proved facts. These links may be termed as inferential links. In drawing these inferences or to be more accurate presumption, a judge of fact is required to have regard to the common course of natural events, to human conduct and their relation to the facts of a particular case; This is what is the principle underlying Section 114 of the Evidence Act. As Lord Chief Baron Macdonald in R. v. Patch, cited in Wills Circumstantial evidence, 6th edn. pp. 46-47 has said: 'Where the proof arises from the irresistible force of a number of circumstances which we cannot conceive to be fraudulently brought together to bear upon one point, that is less fallible than under some circumstances direct evidence may be.'
17. The High Courts in India as well as the Supreme Court have uniformly and repeatedly held that a conviction can safely be based on circumstantial evidence provided the several circumstances relied upon by the prosecution are established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accused's guilt. In this connection the following authorities may be mentioned : : 1953CriLJ129 , : AIR1954SC660 , : AIR1954SC720 , AIR 1955 Mys 119, ILR (1957) Mys 177 : AIR 1958 Mys 150.
18. The learned Advocate for the accused however sounded a caution to us and read out to us from the judgment of Baron Alderson in R. v. Hodge, (1838) 2 Low C. C. 227 which has been quoted by the Supreme Court and is to the following effect:
The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual the more likely was it, considering such matter, to overt each and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.
19. The authorities on circumstantial evidence lay stress on the point that circumstantial evidence should be scrutinized properly and then and then alone a conviction can be based on circumstantial evidence when the facts proved are incapable of explanation except the guilt of the accused. There are authorities which lay down that circumstantial evidence may in certain cases be much stronger than what is called direct evidence as was put down by Gibson Ch. J. that a fact positively sworn to by a single eye witness of blemished character is not satisfactorily proved as a fact which is the necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility, or what is in plain language said: 'A witness may lie but facts do not.'
20. This case is entirely based on circumstantial evidence and there is no eye witness of the occurrence. In this case it is proved that the accused had an almost complete control over the movements of the deceased during the time he was lodged in hotel Embassy, he was his constant companion and attendant too. The accused had seen him making purchases and spending money. It is also proved that the deceased's head had been chopped off. According to Dr. T.N. Malla who performed the post mortem on the body of the deceased the death of the deceased was due to shock consequent upon profuse haemorrhage and cutting of the spinal chord. In the opinion of the doctor the murder could have been committed with the butcher's knife that has been seized in this case.
The butcher's knife and the handkerchief were bloodstained and were recovered from the kitchen of the Embassy Hotel. Rs. 390 were recovered from the father of the accused at the accused's instance. A shirt on the person of the accused had human blood on it. This part of the shirt was concealed under the pulover worn by the accused. These facts would definitely connect the accused with the murder and robbery of the deceased. On 9th morning when Janki Nath Manager of the hotel inquired about the deceased from the accused, the accused gave him a false reply to the effect that he R. Mohan had gone out.
On facts we have ruled out the suggestion of the learned Counsel for the accused that all these articles were planted and then made to seem to be recovered at the instance of the accused. That suggestion has not the faintest force. The argument would suggest that the whole party, the hotelwallas, the police, the witnesses of the recoveries made a conspiracy to involve the accused. The butcher's knife used in this case was taken out by the accused from a number of other knives lying in the kitchen of the hotel. The accused has not offered any explanation about any of these recoveries. He nas not even been able to explain how human blood came to be found on the shirt that he was wearing.
21. The learned Counsel for the accused has laid great stress on the fact that the recovery of the Rs. 10 currency notes, one from the person of the deceased, one from the person of the accused and Rs. 390 from the possession of the father of the accused did not at all connect the accused with this offence of either murder or robbery. He has stated that there is no evidence to prove that these currency notes belonged to the deceased. The learned Sessions Judge has however held that the accused may have given this note to the deceased. But we cannot divorce this fact from the other proved facts in this case. To my mind the motive for this ghastly act of committing the murder by the accused has been his greed for the money of the deceased. The accused knew that the deceased was possessed of money. To deprive him of that money he committed robbery and murder. The recovery of notes of the same series from three different persons: the deceased, the accused and the accused's father, is an important link in the chain. He knew that he had committed robbery of these notes. He had handed over Rs. 390 to his father and at his instance this money was recovered from his-father. The accused has claimed these notes as his own. He has stated that Rs. 414 recovered are his own. This sum of Rs. 414 is comprised of Rs. 390 recovered from his father, Rule 20 recovered from the person of the accused and Rs. 4 in the shape of Rs. 2 and two of Re. 1 each. The learned Counsel for the accused tried to make a faint argument that the accused had not claimed Rs. 390 as his own, but from his statement it is clear that he claimed Rs. 390 recovered from his father as his own money.
22. Now it does not require any further evidence to hold that the notes recovered from the father of the accused as well as the accused of this series belonged to the deceased. The father of the accused who had actually produced the notes has not come into the witness box to explain how he came by Rs. 390 of a particular series. In the absence of any explanation in this behalf by the accused or his rather, it can safely be held that the notes belonged to the deceased and he was robbed of Rs. 400 at least, recovered from the accused as well from his father at the instance of the accused. The circumstantial evidence in this case therefore, in our opinion clearly and without any shadow of doubt connects the accused with the robbery committed upon the deceased and his murder. The accused, it may be stated, has given no explanation whatsoever about these discoveries OF recoveries.
23. As already stated, the authorities on the appreciation of circumstantial evidence cannot be very helpful. Each ease has to be decided on its own merits. If the mind of the judge is satisfied on proof of certain facts that they without doubt lead to the inference of the guilt of the accused, a conviction can safely be based thereon. Although no authorities need be cited, a few may nonetheless be mentioned to illustrate this point.
24. The learned Counsel for the accused referred to: : 1953CriLJ129 ; AIR 1934 Lah 10; AIR 1954 Mad 152.
25. The following further authorities may also be mentioned: ; : AIR1958Pat190 ; : 1955CriLJ1647 ; : AIR1960SC29 ; : AIR1954SC28 ; : AIR1965AP251 ; : 1956CriLJ559 and : AIR1952All776 .
26. : 1953CriLJ129 (Supra) simply lays, down the tests what should be kept in view whle deciding cases on circumstantial evidence. This authority has already been referred to earlier.
27. All that AIR 1934 Lah 10 (Supra) lays, down is that circumstantial evidence requires careful scrutiny before a conviction can be based' on it.
28. In AIR 1954 Mad 152 (Supra) from recent possession of articles belonging to the deceased an offence of murder as well as that of robbery was held to be proved. The acquittal appeal was accepted and the accused were sentenced under Section 302, R. P. C.
29. In (Supra) the accused were found in possession of huge quantities of jewellery belonging to the deceased soon after the deceased had been murdered. Their Lordships held two things in this case. First, in the case of an appeal from acquittal the High Court can convict a person of murder if after a careful review of such evidence the High Court as able to come to the conclusion that the crime with which the accused stands charged is explicable on the hypothesis of his guilt and in no other reasonable manner. In the case before us, it may however be pointed out that we also based the conviction of the accused on the facts 'held to be proved by the learned Sessions Judge and therefore, the rule that the presumption of innocence of the accused is strengthened when the trial Court has acquitted the accused holding the evidence insufficient, is not at all invoked in this case.
30. Reverting to the Rajasthan authority their Lordships further held:
The law is well settled that where murder and robbery are proved to have been integral parts of a certain transaction, the presumption that can be drawn from the possession of the property may, consistent with all the facts proved in the case, be that the person to whom such possession was traced not only committed 'the theft thereof but also committed the murder which forms part of the same transaction as theft. It must of course be established that, because any such presumption can be drawn, the primary thing to be proved is that the accused had no satisfactory explanation to offer for his possession of the property. Further, where the accused offers an explanation the burden of proving the truth of that explanation affirmatively does not rest on the accused. It still rests on the prosecution to prove that the explanation is not true.
This authority further lays down that a murderer cannot be punished under Section 201 of the Penal Code because the offender may try to screen somebody else.
31. In : AIR1958Pat190 (Supra) the fact that the accused was arrested with blood stained clothes when he was running away from his house after the occurrence was held sufficient to prove that he was guilty of murder.
32. Similarly the Supreme Court in : 1955CriLJ1647 held that in a case based on circumstantial evidence where the various links have been satisfactorily made out and the circumstances pointed out to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence such absence of explanation or false explanation would itself be an additional link which completes the chain.'
33. The facts on which conviction was based were the following:
There was a strong motive for the appellant to commit murder. The accused took charge of the murdered woman on the evening preceding murder. He was travelling with her by train. The knife which looked like the one which he was using in his office was found just by the side of the dead body. On the trust of the appellant two and a half days after the murder, he had simple injuries on his hand and his knees. These facts were held sufficient to hold the appellant guilty of murder.
34. AIR 1950 SC 229 (Sic) simply refers to what proof should be insisted upon in the case of circumstantial evidence.
35. In : 2SCR117 which was a case of poisoning it was held that even though medical evidence was negative, still the guilt may be held proved by circumstantial evidence.
36. In : AIR1954SC28 both the accused and the deceased were seen together at about 2 P. M. on 25-2-1951 by the P. Ws. Immediately after the alleged murder the accused went to one Bishandas with the gold half mohur and the silver churas and offered to sell them to Bishandas, who did not purchase the half gold mohur but accepted the pledge of the silver churas. The accused went the next morning to Bhagwandas the goldsmith and sold to him the half gold mohur which was melted by Bhagwandas into a gold bar. The accused himself took the police to Bishandas and to Bhagwandas the goldsmith from whom the silver churas and the fold bar were recovered along with the relative documents showing the pledge and the sale by the accused to the respective parties. These silver churas were identified by the P. Ws. as these which were habitually worn by the deceased.
37. On these facts it was held that as the ornaments were established to be the ornaments worn by the deceased and the accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same, on the very same day on which the alleged murder was committed the circumstantial evidence was sufficient to hold the accused responsible for the murder of the deceased.'
38. In : AIR1952All776 from the fact that the accused was in possession of the stolen property, it was held that the inference could not be drawn that he was a murderer also. Then-Lordships however said that no hard and fast rule can be laid down as to what inference can be drawn from a certain circumstance. The cumulative effect of all the circumstances was established by evidence and the nature of these circumstances have to be taken into consideration and then it has to be judged whether having regard to the ordinary course of conduct, it is safe to presume that the offence was committed by the accused.
39. In that case a blood stained shirt was recovered from the accused's house wherein there were other inmates and there was no evidence to prove that the shirt belonged to the accused.
40. In our opinion the facts of the present case are stronger to bring the offence of murder and robbery home to the accused than in many cases cited above where convictions have been based entirely on circumstantial evidence as disclosed in each authority mentioned above.
41. Then we come to the next point which was the sheet anchor of argument by the learned Counsel for the accused. This was about the document Ex. PX. The learned Counsel argued that the document was a pure concoction. In fact the police had prelaid the plan which they wanted to unfold making the accused the scapegoat. On the factual aspects we have held, agreeing with the learned Sessions Judge, that this document was a genuine one and the recoveries had been effected at the instance of the accused voluntarily. The second contention of the learned Counsel in this behalf was that this document was unknown to law.
There was nothing like Fard Inquishaf as the document is termed by the police. The learned Counsel, however, admitted that this document forms part of the case diary. Apart from the existence of this document, the investigating officers could have stated that a statement was made by the accused while he was in their custody as a result of which statement certain discoveries were made. If this document has been separately prepared and got attested by witnesses, that makes no difference in the eye of law but makes available a strong proof of the statement of the accused resulting in the discoveries, It may be said that this document has been written and got attested by respectable witnesses, who have deposed to its execution, by way of abundant caution. In Field's Law of Evidence page 1471 (1965 edn) it is laid down;
The documents, memoranda of what accused said and covered by Section 27, Evidence Act, are not by themselves substantive evidence, it is what the witness deposes in Court as having been said by an accused, when giving information leading to discovery of a fact, that is evidence.
42. So there is nothing wrong in the document having been prepared by the police.
43. The most important point to be decided is whether this document is admissible and if so, to what extent. This takes us to Section 27 of the Evidence Act which reads 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 costody 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.
In English law however the statement of an accused person to the police could be tendered in evidence provided he had been cautioned and the exact words of the accused are deposed to (See Sir Howard Vincent's Police Code wherein Lord Barampton has been quoted in this behalf).
44. The Indian law on the subject was enacted in 1961. Commentators of Indian law of Evidence have held that two departures were made from the English law and that they were: (1) That no statement made to a police officer by any person was provable at the trial which included the accused person and (2) that no caution was to be given to a person making the statement. The words of this section were taken away bodily from an English authority of 1785 R. v. Lockhart, (1785) 1 Leach 386 (388) wherein it was said:
But it should seem that so much of the confession as relates strictly to the fact discovered by it may be given in evidence, for the reason or rejecting extorted confession is the apprehension that the prisoner may have been thereby induced to say what is false; but the fact discovered alone shows that so much of the confession as immediately relates to it is true.
45. It would appear from this that Section 27 or the Indian Evidence Act has been taken bodily from the English law. In both the laws there is greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him than one who knows of the danger. In English law the caution gives him the necessary warning and in India the fact of his being in custody takes the place of caution which is not to be given. There is, thus, a clear distinction made between a person not accused of an offence nor in the custody of a police officer and one who is, (See State of U.P. v. Deoman. : 1960CriLJ1504 .
46. Taylor in his treatise on the Law of Evidence remarks:
Indeed, all reflecting men are now generally agreed that deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in the law, their value depending on the sound presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Such confessions, therefore, so made by a prisoner to any person, at any time and in any place, are at common law receivable in evidence, while the degree of credit due to them must be estimated by the Jury according to the particular circumstances of each case.
47. Again Taylor in para 902 of his treatise (ibid) observes:
When in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material facts, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoners statement as to his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found; but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that he had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence as part at least of the statement cannot have been false.
The requirements of Section 27 of the Indian Evidence Act which is an exception to Sections 25 and 26 are as under:
(1) Some fact is deposed to (a) as discovered (b) discovered in consequence of information (c) information received from a person accused of any offence (d) the person being in the custody of police officer; (2)(a) the information is received as a matter of fact (b) it is received from a person accused of any offence (c) the person being in the custody of the police officer; (3)(a) some fact is discovered (b) the fact is discovered by (i) the whole information or (ii) a portion of the information; (4) that portion of the information is evidence (a) by which the fact is discovered and (b) which relates distinctly to the fact discovered.
48. The scope of Section 27 has been the subject matter of so much of judicial comment that it will be useless to reproduce the dicta of the different High Courts. We may, however, confine our attention to one or two important authorities on the subject.
49. In AIR 1947 PC 67 it was held:
It is fallacious to treat the fact discovered within the section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to the fact. Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
50. Their Lordships have further held that the condition necessary to bring Section 27 into operation is that the discovery of a fact must be deposed to, and thereupon so much of the information as relates instinctly to the fact thereby discovered may be proved. 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.'
51. On the basis of this authority the different High Courts have considered Section 27 from time,to time. Such authorities need not be reproduced in detail, but the Supreme Court in : 1957CriLJ328 , : 1960CriLJ1504 and : 3SCR412 has had occasion to discuss the ambit and scope of Section 27.
52. In : 1957CriLJ328 their Lordships held that where in a murder charge, the appellant had stated to the police that he would give the clothes of the deceased, which he had placed in a pit above a brick-kiln, and thereafter, the appellant in the presence of witnesses, dug the pit in the brick-kiln and took out the clothes, which were identified as the clothes of the deceased, the statement of the appellant to the police was admissible.
53. Again in : 1960CriLJ1504 (Supra) the matters relating to Section 27 were discussed and it was held:
The expression 'accused person' in Section 24 and the expression 'a person accused of any offence' in Section 25 have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. The expression 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned against whom evidence relating to information alleged to be given by him is made provable by Section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved as a condition of its applicability.' In this case it was further held that Section 27 of the Evidence Act and Section 162 of the Cr. P. C. in sofar as they relate to Section 27, do not offend against Article 14 of the Constitution.
54. In the last authority : 3SCR412 Wanchoo J. after considering the P. C. authority in AIR 1947 P C 61 quoted the observations made in that authority and then held:
Section 27 is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police 'whether it amounts to a confession or not' which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery or a fact may be proved under Section 27.
It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the Court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not.
55. Wanchoo J. further held:
Where in a burglary case, the accused in police custody made a statement to the police that he would show the place where he had hidden the ornaments and that statement led to the discovery of the stolen ornaments, the whole of the statement relates distinctly to the discovery of ornaments and is admissible under Section 27. The words 'where he had hidden them' have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement and would therefore not be inadmissible.
56. These observations of their Lordships. of the Supreme Court show that it is not strictly speaking only these parts of a statement which relate to the discovery of a certain fact which are relevant but the entire statement. In this way the Supreme Court has very rightly extended the scope of the statement envisaged under Section 27.
57. When we analyze Ex. PX and apply to it the tests laid down by the Supreme Court, we do not find anything to which exception can be taken on the ground of inadmissibility of this document. The learned Sessions Judge has held the following words as inadmissible from this document; namely, Joki jeb se liye hain. () and has encircled them. This statement wherein these words occur relates to the statement made by the accused to the effect that he would point out or get recovered Rs. 390/- which he had placed with his father and which he had taken from the pocket of R. Mohan.
Objection has been taken by the learned Sessions Judge to these words as they amount to a confession of theft or robbery having been committed by the accused vis-a-vis this money. In our opinion as remarked by the Supreme Court these words cannot be excised from the entire sentence which would otherwise be meaningless. Even if we omit from consideration these words, the rest of the document in our opinion is fully protected by the words of Section 27 of the E. Act, as it fulfils all the condition and requirement as enumerated above of that Section. On the basis of this document the recoveries which are very vital for the decision of this case have been made and this document was a very important piece of evidence in this case,
58. From the above discussion we come to the conclusion that the accused has been wrongly acquitted under Section 302 RPC.
59. About Section 394 RPC the judgment of the trial Court is silent. But reading in between the lines it can safely be inferred that the learned Sessions Judge has acquitted the accused of that offence because his finding about the notes is that the note recovered from the person of the deceased may have been given by the accused to the deceased. We find that the facts of this case clearly bring home the offence of murder as well as of robbery to the accused.
60. About the sentence under Section 302 RPC there can be no two opinions. The learned Sessions Judge has at more than one place held the act as a very brutal one. At page 14 of the paper book he says that 'R. Mohan was murdered in a very brutal manner' and on page 24 he has again said that there is no doubt that his murder must have created revulsion and horror in the mind of the people. We also find that the murder has been committed in the most brutal manner by completely chopping off the head from the body. There is no extenuating circumstance in this case to impose the lesser penalty on the appellant. We, therefore, convict the accused under Section 302 RPC and sentence him to death.
61. The next question to be considered is whether the conviction under Section 201 RPC has to be maintained or not. There is no unanimity of decision on this legal proposition between the various High Courts. The Bombay High Court has held that a person cannot be convicted under this section of causing the evidence of the commission of an offence to disappear nor can he be convicted of committing such an act. (Vide (1871) 8 Bom HC (sic)).
62. The High Court of Allahabad has held that a person who has actually committed a crime himself is nonetheless guilty of removing traces thereof if it is proved against him that he has done so because he was the person who actually committed the offence. Vide ILR 49 All 57 : AIR 1926 All 737.
63. The Calcutta High Court once held the view that this section applies merely to a person who screens the principal or actual offender and not to the principal or actual offender himself. Vide (1845) ILR 22 Cal 638.
64. The Madras High Court has held that a person who is the actual offender cannot be convicted under this section for causing disappearance of the evidence of the offence. See ILR 54 Mad 68 : AIR 1930 Mad 87.0 and AIR 1942 Mad 275 (2).
65. The Patna High Court once held that this section did not relate to the principal offender but to the person other than the actual criminal. But subsequently it agreed with the Allahabad view and held that a person who has actually committed a crime himself cannot be said to be any the less guilty of removing the traces thereof if he is proved that he has done so, because he was the person who actually committed the offence. (1939) 19 Patna 369.
66. The Lahore High Court has also held that this section applies merely to the person who screens the actual offender and not to the principal or the actual offender himself. AIR 1936 Lah 209.
67. The Orissa High Court in : AIR1957Ori216 has held 'Where the accused was charged under Sections 302 and 201 RPC the Court ought not to record a finding of acquittal on the charge under Section 201 without going into that question and taking the evidence into consideration on the mere ground that as she was convicted under Section 302 RPC she was to be acquitted of the charge under Section 201. Such a procedure was held dangerous by a Division Bench of this Court.
68. The Supreme Court in : 1953CriLJ668 held that it was open to the Supreme Court, in an appeal preferred by the accused, to restore the conviction under Section 201 on setting aside the conviction under Sections 114 and 302, even though the State had not appealed, as the acquittal under Section 201 was intimately connected with the conviction under Sections 114 and 302, and took place only because the accused was convicted of the main charge under Sections 114 and 302.
69. The facts of that case were that the accused was charged under Sections 114 and 302, Penal Code, with abetment of murder. The Sessions Judge acquitted her of that charge and convicted her under Section 201, for suppressing evidence of murder and giving false information. On appeal by the accused as well as the State, the Judicial Commissioner set aside the conviction under Section 201 and convicted the accused under Sections 114/302.
70. In our opinion there is nothing legally wrong in convicting the same person for the principal offence and for causing disappearance of the evidence relating to the commission of that offence. These two are different acts. The commission of the principal offence is one complete act in itself and causing the disappearance of the evidence of the commission of the offence is entirely a different act which is punishable under a different section of the Penal Code, We, therefore affirm the conviction of the accused under Section 201 RPC and uphold the sentence passed on him by the learned Sessions Judge.
71. The result is that the appeal of the accused fails and the appeal of the State both under Ss, 302 and 394 RPC succeeds. The accused-appellant shall be hanged by the neck till he is dead. We further convict the accused under Section 394 RPC and sentence him to undergo seven years' rigorous imprisonment. The sentence of death on the accused shall not be executed till the period of limitation (60 days) under Order 21 Rule 12 of the Supreme Court Rules for preferring an appeal from this judgment to the Supreme Court expires.
72. A copy of this judgment shall be given free to the accused.
S. Murtaza Fazl Ali, J.
73. I agree.