# BALESHWAR RAI AND OTHERS v. THE STATE OF BIHAR ·

- **Citation:** [1963] 2 S.C.R. 433
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** CRIMINAL APPELLA·rE JumsnrnTION: Crimmal Appeals Nos. 176 to 178 of 1961
- **Bench:** K. C. Das Gupta, J. R. MuDHOLKAR, T. L. Venkatarama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baleshwar-rai-and-others-v-the-state-of-bihar-2499
- **Pages:** 7

## Headnote

Criminal Procedure-Statement ma<ie to investigating
officer-I/ ana when barred from being proved: in evi<lence-
"Tlie ptriod 'a/ inveeligation" and «Course of investigation"-
!/, Synonymous-Code of Criminal Procedure (Act V of 1898),
s. 162.
Section 162 of the Code of Criminal Procedure only
bare proof of statement made to an investigating officer during the course of investigation. It does not say that every
statement made during the period of investigation is barred
from being proved in evidence. For a statement to come
within the purview of-s. 162, it must not merely be made
during the period of investigation but also in the course of
investigation. The two things, "the period of investigation"
and
~'Course of investigation" are not synonymous. Section
162 is aimed at statements recorded by a Police Officer
while investigating into an offence. This is clear from the
opening words s. 162. They speak only of statement made
to a police officer during the course of investigation. This
implies that the statement sought , to be ei<cluded from evidence must be ascribable to the enquiry conducted by the
investigating office and not one which . is de-hors the
enquiry.
CRIMINAL APPELLA·rE JumsnrnTION: Crimmal
Appeals Nos. 176 to 178 of 1961.
Appeals by special leave from the judgment
~ and order dated Au~ust 10, 1961, of the Patna
High Court in Cr. A. No. 152 of 1961 and Dea.th
Reference No. 3 of 1961.
Bushil Kumar Jha, Bubodh Kumar Jha and
R. 0. Praakad, for the appellants.
O. K. Daphwry, Solicitor General of India
and 8. P. Verma, for the respondents.
'
-
iftWil 26.1
19'Z
BaUst-VKir Ro/
"'
7/,. S1<u, .j B;lw
434
SUPREME OOURT REPORTS (1963)
1962. April 26. 'fhe J u-lgment of the Court
was delivered by :-
MunHOLK.A.R, J.-This judgment will govern
Criminal Appeals nos. 177 ap.d 178 also. All these
three appeals arise out of the same trial.
The
learned Additiona.l Sessions Judge, Monghyr who
oonduoted the trial convicted the appellant, Ramoha.ndra Chaudhary who is appellant in Criminal
Appeal No. 177 of 1961 for an olfence under s. 302
Indian Penal Code. He also oonvioted B~leshwar
Re.i alias Nepali Master, appellant in this appeal
and Jogendra Che.udhary, appellant in Criminal
Appeal No. 178 of 11161 of a.n olfenoo under s. 302
read with s. 34, India.n Penal Code. He sentenced
each of the three to dee.th. Their appeals were dis·
missed by the High Court of Patna, and sentenoes
of death passed against them were confirmed by it.
They have come up before this .Court by special
leave.
The prORecntion story is briefly as follows :-
On March 17, 1959 at about l!.00 p.m. the
chaukidars of the village Fateha had &111embled, as
usual, in the 'crime centre' of the v~llage. Their
names are-Anandi Paswan, (deoeaaed), Misri Paswan (P.W.2), Baleshwar Paswan (P.W.3) a.ud Na.rain
Paswan. Anandi Pe.swan a.nd Misri Paswan were
lying on a chouki. Anandi Paswan had a 'bhala' and
a •murethe.' while Misri Paswan had a •pharaa' and
I\ 'muretha'. These weapons as well as the shirt of
the deooased were kept on the ohouki. The other two
choukidars were lying on the ground. The crime
centre is housed in the 'de.Ian' of Tilak. Cha.udhary
(P.W.6). One other person, Srili.l Che.udha.ry, ( f' .W.
7), the brother of Tila.k Chaudhary, was also lying
there on the khatia on the north-east of the aa.id
'dalan'. In an a.dja.cent room were P.W.11 Nathuni
Cliaudhary alias Durga Das and P.W.12 Ramcha.nder Jha.
•
. " '
i
2 S.C.R •
SUPREUE COURT REPORTS ___ -435According to the prosecution a little ·before
9.00 p.m. someone from outside called out '•Daroga·
ji". On hearing this, the deceased Anandi Pa.swan
and llfisri Pa.swan got up. It was a ~oonlit night
and they saw Ramchander · Chaudhary, Jogendra
Chaudhary and another person, who was later identi·
fled to be Ne[Jali .!\faster, standin~ closeby. As
soon as they went towards the appellants, Jogendra
Chaudhary and Nepali l\Iaster caught the deceased
whilfl Ramchandra Chaudhary caught Misri Pa.swan.
Both Ramchandra Chaudha

## Text

+
2 s.c.R.
SUPREME COURT REPORTS
433
BALESHWAR RAI AND OTHERS
v.
THE STATE OF BIHAR ·
(K. C. DAS GUPTA, J. R. MuDHOLKAR and T. L.
VENKATARAMA AIYAR, JJ.)
Criminal Procedure-Statement ma<ie to investigating
officer-I/ ana when barred from being proved: in evi<lence-
"Tlie ptriod 'a/ inveeligation" and «Course of investigation"-
!/, Synonymous-Code of Criminal Procedure (Act V of 1898),
s. 162.
Section 162 of the Code of Criminal Procedure only
bare proof of statement made to an investigating officer during the course of investigation. It does not say that every
statement made during the period of investigation is barred
from being proved in evidence. For a statement to come
within the purview of-s. 162, it must not merely be made
during the period of investigation but also in the course of
investigation. The two things, "the period of investigation"
and
~'Course of investigation" are not synonymous. Section
162 is aimed at statements recorded by a Police Officer
while investigating into an offence. This is clear from the
opening words s. 162. They speak only of statement made
to a police officer during the course of investigation. This
implies that the statement sought , to be ei<cluded from evidence must be ascribable to the enquiry conducted by the
investigating office and not one which . is de-hors the
enquiry.
CRIMINAL APPELLA·rE JumsnrnTION: Crimmal
Appeals Nos. 176 to 178 of 1961.
Appeals by special leave from the judgment
~ and order dated Au~ust 10, 1961, of the Patna
High Court in Cr. A. No. 152 of 1961 and Dea.th
Reference No. 3 of 1961.
Bushil Kumar Jha, Bubodh Kumar Jha and
R. 0. Praakad, for the appellants.
O. K. Daphwry, Solicitor General of India
and 8. P. Verma, for the respondents.
'
-
iftWil 26.1
19'Z
BaUst-VKir Ro/
"'
7/,. S1<u, .j B;lw
434
SUPREME OOURT REPORTS (1963)
1962. April 26. 'fhe J u-lgment of the Court
was delivered by :-
MunHOLK.A.R, J.-This judgment will govern
Criminal Appeals nos. 177 ap.d 178 also. All these
three appeals arise out of the same trial.
The
learned Additiona.l Sessions Judge, Monghyr who
oonduoted the trial convicted the appellant, Ramoha.ndra Chaudhary who is appellant in Criminal
Appeal No. 177 of 1961 for an olfence under s. 302
Indian Penal Code. He also oonvioted B~leshwar
Re.i alias Nepali Master, appellant in this appeal
and Jogendra Che.udhary, appellant in Criminal
Appeal No. 178 of 11161 of a.n olfenoo under s. 302
read with s. 34, India.n Penal Code. He sentenced
each of the three to dee.th. Their appeals were dis·
missed by the High Court of Patna, and sentenoes
of death passed against them were confirmed by it.
They have come up before this .Court by special
leave.
The prORecntion story is briefly as follows :-
On March 17, 1959 at about l!.00 p.m. the
chaukidars of the village Fateha had &111embled, as
usual, in the 'crime centre' of the v~llage. Their
names are-Anandi Paswan, (deoeaaed), Misri Paswan (P.W.2), Baleshwar Paswan (P.W.3) a.ud Na.rain
Paswan. Anandi Pe.swan a.nd Misri Paswan were
lying on a chouki. Anandi Paswan had a 'bhala' and
a •murethe.' while Misri Paswan had a •pharaa' and
I\ 'muretha'. These weapons as well as the shirt of
the deooased were kept on the ohouki. The other two
choukidars were lying on the ground. The crime
centre is housed in the 'de.Ian' of Tilak. Cha.udhary
(P.W.6). One other person, Srili.l Che.udha.ry, ( f' .W.
7), the brother of Tila.k Chaudhary, was also lying
there on the khatia on the north-east of the aa.id
'dalan'. In an a.dja.cent room were P.W.11 Nathuni
Cliaudhary alias Durga Das and P.W.12 Ramcha.nder Jha.
•
. " '
i
2 S.C.R •
SUPREUE COURT REPORTS ___ -435According to the prosecution a little ·before
9.00 p.m. someone from outside called out '•Daroga·
ji". On hearing this, the deceased Anandi Pa.swan
and llfisri Pa.swan got up. It was a ~oonlit night
and they saw Ramchander · Chaudhary, Jogendra
Chaudhary and another person, who was later identi·
fled to be Ne[Jali .!\faster, standin~ closeby. As
soon as they went towards the appellants, Jogendra
Chaudhary and Nepali l\Iaster caught the deceased
whilfl Ramchandra Chaudhary caught Misri Pa.swan.
Both Ramchandra Chaudhary and Jogendra Chau·
dhary had guns with them which were slung across
their shoulders. TheM three persons then took the
deceased and .Uisri Pa.swan to the road to the East
of the 'dalan', running north to south, and proceed·
ed southward.
N~ither ·the deceased nor .Misri
Pa.swan raised any cry, apparently because they
were threatened that if they did so, they would be .
shot. When tha p:uty re1ched the place to the west
·of one Peare Sao's house and to the east of the
'house of Rampratap Tanti (P.W. 5). the deceased
called for Rampratap's help, and freeing himself
from the clutches of his captors started nmning way
westward. Upon this ·Ramchandra. Chaudhary let
go the hand of Misri Paswan and fired at'the de·
ceased. · l\Iisri Pa.swan then ran into the house of
Peare Sao and too~ shelter there: While entering
that house, he heard a second gun shot .. His pre- .
sence in the house was detected by ~Ist. Ajo(P.W.8),
the wife of Peare Sao who forced him to leave
the house. Thereafter he came . out into the lane
and concealed himself behind the door.· After the
moon had set and it became dark, he went to the
house of Fakir Pa.swan (P.W. 4), which is to the
east of the house of Peare S 10, and narrated the
occurrence to him. He mentioned Ramchandra and
J ogendra as the two personB who lt:id taken part in
the incident. In the early hours of the morning he
-went to the place where gun shots were fired, and
found Anandi Paswan, chaukidar lying dead in a
1962
Balashwa • Rai ·
v .....
Th• State oJ Bihat
·-
M uahoU:u J.
1161
Ba/11/noor Rai
••
TA1 State of Bihar
MudhM~ar J.
436
SUPREME OOURT REPORTS (1963]
ditch by the side of the road, face downwards. He
noticed that Anandi Paswan had received two gun
shot wounds on his back. Thereafter he went home
and contacted the other chaukidar, Narain Paswan
and Bal~sws.r Paswan.
He placed them in charge
of the dead body and then went to the police station a loo~ with Ramrleo, son of the rlecea.sed.
He
lorlp:ed the first information report at the police
station. After recording it, the junior Sub-Inspec·
tor of police commenced investigation and after
oompl(·tlng it submitted a charire·sheet against the
three appellants on March 15, 1959.
It is the prO!leoution case that the appellants
are "vetrrnn criminals" and the chaukidars used
to report R hout. their movements and that this was
the motive for the murder. It was further said that
th!' dt>()('a!led had ht>lped th11 Dalsingsarai police in
arrestin~ one l\fotia l\fu~har, who was the plouirhman of the appellant Ramchandra, in a dacoity
caae.
All the appellants denied having participated
in the incident. The defence is that a false o&Be
has be~n concocted by the poliN>,
The main evidence against the appellant is
that of P.W. 2, Misri Paswan. He has actually
named Ramchandra Chaudhary and J oitendra Chaudhary in the first information report. Regarding the
third appellant, he stated that he was unknown.
Ramchandra and Jogendra have been identified not
only by llfisri PaswRn, but also by five other wit·
ne83es, Narain Paswan, ""Rampratap Tanti,
Srilal
Chaudhary, Nathuni Chaudharv and Ramchander
Jbl!,.
All these five persons had an opportunity
to see
the appellants
because, it
may
be
rt>called, some of them were in the
'dalan'
and
some in the adjacent room when
the
appellants came near there and one of them cried
out "Darogaji''. Their evidence has been accepted
•
·•
-·
2 S.C.R.
SUPREME OOURT REPORTS
437
as true and adequate not only by the learned
Sessions Judge who had an opportunit.y to see and
hear the witnesses depose but also by the High
Court. Their evidenoe oannot be reappraised in
their appeals by special leave.
The learned counsel, however, said that in so
far as Jogendra Chaudhary is concerned, common
intention to commit murder had not been established. The existence of common intention has always
to be inferred from facts. Here it has been ·estab·
lished that all the three appellants ca.me together.
Two of them, Ra.mohandra and Jogendra had guns,
with them. The prosecution has established to the
satisfaction of the learned Additional Sessions
.Judge and the High Court that as Anandi Pa.swan
was giving information to the police about the
movements of the appellants and had also takeri
the major part in getting one Motia J\lushar arrested
in a dacoity case, Ramchandra nursed a grievance
against Anandi. The inference, therefore, must
be that h11 had come with the intention of t3king
. revenge on An'londi Pas wan by killing him and the
other two appellants who accompanied him shared
that intention. As the High Court has pointed
out, this is made clearer by the Rtatement of Misri
Pa.swan to the effect that Ramohandra said at the
time of the incident that 'his (servant) Motfa' wa.8
taken 11.way forcibly and then Jogendra ilaked the
deceased sarcastically, "Where. is your military
today ?" In the circumetance11, therefore, there
can he no doubt that common intention to commit
murder was established not only with respect to
J ogendra but also with res elect to Nepali Master
who was all along with them.
On behalf of Nepali Master the learned counsel contended that he has been identified at the test
iientification parade by one witness only and that
the other persons did not turn up for identification
and, therefore, it is not legally permissible to base
lf62
Ba/11/Jwar Rai
'·
Tk1 Sta11 of Bihat
Muiko/l<ar /,
Ba/11Atoar Roi
..
Tli< Stai of Bi/tar
438 SUPREME COURT REPORTS (1963)
the identification by only one person. It is sufficient to say that even the evidence of a single
witness can sustain the conviotion of an ac<l118ed
person if the court which saw and heard him depose
re~ards him as a witneSB of truth. However, in
this case, Nepali Master was identified not by one
witne~s only but by two witnesses (P. W. 7) Srilal
Choudhary and (P. W. 9) Dakhi Mahto. It wae
said th-it Srilal is an old man of 75 and has a weak
Pyesillht and therefore his evidence should be kept
out of account. His evidenoo has been believed by
the learned Seesions Judge as well as by the High
Court and we ca '!not reaeseSB it.
It was contended before the High Court and
is also contended before us that as the teat identification was held long time after hie arrest, the
evidence of these two witnessea could not be believ·
ed. This circumstance was also considered by the
High Court and it observed :
"The oontention is attrautive; but, in
view of Ex. 6, it is difficult to accept the
same".
Exhibit 6 is an Pnonymous letter written to Senior
Sub-Inspector, Kaehi Nath (P. W. 22), of which the
only portion whioh has been admitted in evidence
r~ade thus:
"The rascal Anandia Choukidar spoiled
the life of t.hat poor Mushar by instigating
the S. I. of Police of Dalaingeuai and eubsequentlv
he also spied against us
for
nothing"
'
Thia dooument along with ex. 3, dated June 9,
1959, which is admittedly in tlie handwriting of
Nepali Master, w•e sent to the Government handwriting expert. Both the documents were examined
by him. In hie evidenoe he has stated.
~-·
"The Board of Experts consisting of
myaelf, Chatterjee and Srivastava examined
<"'·
'
2 s.c.R.
SUPREME OOUR'i.' REPORTS
439
these independently and our unanimous
opinion was that Ex. 3, tallied with disputed
writings (Ext. 6)."
This being so, the admission oontained in Ext. 6 as
to the motive is olearly admissible under s. 21 of
the Evidenoe Aot. The High Court was, therefore,
right in holding that Ext. 6 afforded oorroboration
to the evidence of (P. W. 7) Srilal Chaudhary and
(P. W. 9) Dukhi Mahto.
It is then contended that Ex. 6 is hit bv s.162
of the Criminal Procedure Code because it was
received by the Sub-Inspector during the course of
the investigation.
Section 16 ! of the Criminal
Procedure Code only bars proof of statements made
to an investigating officer during the course of
investigation. Section 162 does not eay that every
statement made during the period of investigation
is barred from being proved in evidence. For a
etatement t.o oome within the purview of s. 162, it
must not merely be made during the period of
investigation but also in the course of investigation.
The two things, that is, "the period of investigation" and "course of investigation" are not synonymous. Section 162 is aimed at statements recorded
by a police officer while investigating into an
offence. This is clear from the opening words
s. 162. They speak only of statements made to a
police officer during the course of investigation.
This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry
conducted by the investigating officer and not one
which is de hors the enquiry. A communication
like Ext. 6 will not fall within the ambit of such
statements. In this view we hold that the document in question is not hit by s. 162 of the Criminal Procedure Code and the High Court was right
in admitting it in evidence.
There is no substance in the appeals and
they are, therefore, dismiesed.
1962
Bal1•lnoar Rai
v.
Tiu Stas of Bi/1ar
Mudholkar J.