# KALI RAM v. STATE OF IDMACHAL PRADESH

- **Citation:** [1974] 1 S.C.R. 722
- **Court:** Supreme Court of India
- **Decided:** 1973-09-24
- **Bench:** H. R. Khanna, A. Alagiriswami, R. S. Sahaiua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kali-ram-v-state-of-idmachal-pradesh-6023
- **Pages:** 15

## Headnote

Criminal trial-Burden of proof-Benefit of doubt-Principles governing.
Code of Criminal Procedure, 1898 (5 of 1898)-8. 162-Scope of.
One of the cardinal principles which has always to be kept in view in our
system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be
guilty of the offence with which he is charged. The burden of proving the
gvilt of the accused is upon the prosecution and unless it relieves itself of
that burden, the courts cannot record a finding of the guilt of the accused.
There are certain cases in which statutory presumptions arise regarding the
~uilt of the accused but the burden even in those cases is upon the prosecutioa
to proTe the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist
1ho court can raise the statutory presumption and it would, in such an event.
•e for the accused to rebut the presumption. The onus even in such Casei
upon the accused is not as heaT)' as is normally upon the prosecuticn to prove
the guilt of the accused. If some material is brought on the record consistent
with the innocence of the accused which may reasonably be true, even thougk
it is not positively proved to be true, the accused would be entitled to acquittal. [733 H; 734 A-C)
Another golden thread which runs through the web of the administration of
justice in criminal cases is that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused and the other to hi&
innocence, the view which is favourable to the accused should be adopted.
This principle has a special relevance in cases where the guilt of the accused is
rought to be established by circumstan:ial evidence. Rule bas accordingly been
laid down that unless the evidence adduced in ~he case i3 consistent only with
the hypothesis of the guilt of the accused and is inconsistent with that of his
innocence, the court should refrain from recording a finding of guilt of the
accused. It is also an accepted rule that in case the court entertains reasonable
doubt regarding the guilt of the accused, the accused must have the benefit of
doubt. Of course, the doubt regarding the guilt of the. accused should be reasonable, it is not the doubt of a mind which is either so vacillating that it is
incapable of reaching a firm conclusion or so timid that it is hesitant and afraid
to take things to their natural consequences. The rule regarding the benefit of
doubt also does not warrant acquittal of the accused bv resort to surmises, conjectures or fanciful considerations. As mentioned by this Court in the case of
State of Punjab v. Jagir Singh, (Crt. .A. No. 7 of 1972 d/ August 6, 1973) a
criminal trial is not liked a fairy tale wherein one is free to give tlight to one's
imagination and phantasy. Jn arriving at the conciusion abou• the guilt of the
accused charged with the commission of a crime, the court has to judge the
eTidence by the yardstick of probabilities, its intrinsir worth and tb~ animus
of witnesses.
Every case in the final analysis would have to depend upon its
own facts. A1though the benefit of every reasonable doub+
sh~ulr1 be given
to the accused the courts should not at the same time reiect evidence which
ie ex facie trustworthy or grounds which aro fanciful or in the nature of conjec-
..-res. [734,.....6-H; 735 A-Dl
It Dl>eds all the same to be re-emphasised that if a reasonable doubt arises
regarding the guilt of the accused. the benf"fit of that canno• be withhotrl from
the accused. The courts would not be justified in withholding the benefit bocaliSe the acquittal might hue an impact noon the law and order ~ituation
or create adverse reaction in societv or am"ngst those membars of the society
who believe the accused to be euifty. The suilt of the accused has to be
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## Text

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722
KALI RAM
v.
STATE OF IDMACHAL PRADESH
September 24, 1973
[H. R. KHANNA, A. ALAGIRISWAMI AND R. S. SAHAIUA, JJ.]
Criminal trial-Burden of proof-Benefit of doubt-Principles governing.
Code of Criminal Procedure, 1898 (5 of 1898)-8. 162-Scope of.
One of the cardinal principles which has always to be kept in view in our
system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be
guilty of the offence with which he is charged. The burden of proving the
gvilt of the accused is upon the prosecution and unless it relieves itself of
that burden, the courts cannot record a finding of the guilt of the accused.
There are certain cases in which statutory presumptions arise regarding the
~uilt of the accused but the burden even in those cases is upon the prosecutioa
to proTe the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist
1ho court can raise the statutory presumption and it would, in such an event.
•e for the accused to rebut the presumption. The onus even in such Casei
upon the accused is not as heaT)' as is normally upon the prosecuticn to prove
the guilt of the accused. If some material is brought on the record consistent
with the innocence of the accused which may reasonably be true, even thougk
it is not positively proved to be true, the accused would be entitled to acquittal. [733 H; 734 A-C)
Another golden thread which runs through the web of the administration of
justice in criminal cases is that if two views are possible on the evidence adduced
in the case, one pointing to the guilt of the accused and the other to hi&
innocence, the view which is favourable to the accused should be adopted.
This principle has a special relevance in cases where the guilt of the accused is
rought to be established by circumstan:ial evidence. Rule bas accordingly been
laid down that unless the evidence adduced in ~he case i3 consistent only with
the hypothesis of the guilt of the accused and is inconsistent with that of his
innocence, the court should refrain from recording a finding of guilt of the
accused. It is also an accepted rule that in case the court entertains reasonable
doubt regarding the guilt of the accused, the accused must have the benefit of
doubt. Of course, the doubt regarding the guilt of the. accused should be reasonable, it is not the doubt of a mind which is either so vacillating that it is
incapable of reaching a firm conclusion or so timid that it is hesitant and afraid
to take things to their natural consequences. The rule regarding the benefit of
doubt also does not warrant acquittal of the accused bv resort to surmises, conjectures or fanciful considerations. As mentioned by this Court in the case of
State of Punjab v. Jagir Singh, (Crt. .A. No. 7 of 1972 d/ August 6, 1973) a
criminal trial is not liked a fairy tale wherein one is free to give tlight to one's
imagination and phantasy. Jn arriving at the conciusion abou• the guilt of the
accused charged with the commission of a crime, the court has to judge the
eTidence by the yardstick of probabilities, its intrinsir worth and tb~ animus
of witnesses.
Every case in the final analysis would have to depend upon its
own facts. A1though the benefit of every reasonable doub+
sh~ulr1 be given
to the accused the courts should not at the same time reiect evidence which
ie ex facie trustworthy or grounds which aro fanciful or in the nature of conjec-
..-res. [734,.....6-H; 735 A-Dl
It Dl>eds all the same to be re-emphasised that if a reasonable doubt arises
regarding the guilt of the accused. the benf"fit of that canno• be withhotrl from
the accused. The courts would not be justified in withholding the benefit bocaliSe the acquittal might hue an impact noon the law and order ~ituation
or create adverse reaction in societv or am"ngst those membars of the society
who believe the accused to be euifty. The suilt of the accused has to be
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KALI RAM V. H.P. STATE (Khanna, ].)
723
.ad)udged not by the fact that a vast number of people believe him to be pilty
but whether his guilt bas been established by the evidence brought on record.
Indeed, the courts have hardly any other yardstick or material to adjudge the
guilt of the person arranged as accused. It is no doubt true that wrongful
acquitt&ls are undesirable and shake the confidence of the people in the judicial
system, much worse, however, is the wrongful conviction of an innocent perSon.
The consequence of the conviction of an innocent person are far more serious
and its reverberations cannot but be felt in a civilised society. [7350-F; Hl
Shivoji Sahabrao Bobade cl anr. v. State of Maharashtra, Cr. A. No. 26 of
1970 dated 27-8-73, referred •to.
·
The appellant was convicted under s. 302, Indian Penal Code and sentenced
to death. The Hiab Court maintained the conviction and sentence. The Hijh
Court relied on three pieces of evidence vit.; (i) evidence of a witne!s which
was recorded by the police over two months after the occurrence; (ii) the letter
written by the accused to th~ Deputy Commissioner making a confession and
(iii) the confession made to S.R. who incorporated this in a letter to the Station
House Officer.
Allowin& the appeal to this Court,
HELD : that the judament of the trial court and the High Court had to be
~et aside and the accused acquitted. [736F]
( 1) If a witness professed to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness kept
silent for over two month! regarding the said incriminatinJ circumstance against
the accused, his statement relating to the incriminating circumstances, in tho
absence of any coaent reason, was bound to lose most of its value. [730 B·CJ
1
( 2) The fact that no action was taken on the letter till it was taken into
possession by the police, the incongruity of the portion of the letter relating
to confession and the circumstances in which the accused is stated to have ·
got the letter written-all these make it. unsafe to act upon the confession in·
corporated in the letter. [730H]
( 3) The letter which was addressed by SR to the Station House Officer was
in the nature of narration of what, according to SR. be had b_een told by the
accused. Such a letter would constitute a statement for the purpose Qf · s. 162,.
Cr.P.C. The probibition contained in s. 162, Cr.P.C. relates to all statements
made during the course of an investigation. The prohi~ition relating to the
use of a statement made to a police officer during the course of an investigation
could not be set at naught by the police officer not himself recording the
statement of a person but having it in the form of a communication addressed
by a person concerned to the police officer. If a statement made by a person
to a police officer in the course of an investigation is inadmissible except for
the purpose mentioned in s. 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the
course of an investigation. It is not permissible to circumvent the prohibition
contained in s. 162 by the investigating officer obtaining a written statement of
a person instead of the investigating officer himself recording that statement.
The restriction placed by s. 162 on the use of statement made during the course
of investigation is in general terms. There is nothing in the section to show
that the investigation must relate to any particular accused before a statement"
to the police pertaining to that accused can be held to be inadmis!ible. The
letter is, therefore, inadmissible in evidence. [732C-E; GJ
Sita Ram v. State of Uttar Pradesh, [1966] Supp. S.C.R. 165 held inapplic·
able.
CRIMINAL APPELLATE JURISI>ICTION : Criminal Appeal No. 22 of
1973.
Appeal by special leave from the judgment and order dated the
13th July 1972 of the High Court of Himachal Pradesh at Simla in
Criminal Appeal No. 31 of 1970 and Murder Reference No. 21 of
1970.
124
SUP.llEME COUllT )lEPORTS
[ 1974 I 1 s.c.~
Yog~shwar Prasad, for the· ap~~t.
H: R. Khanna and M. N. Shroff, for the r~spon4ent.
The Judgment of ~Court was deJive~ed by
~NA,, .J: • .l{ali Ram (40) was tried in the cotirt of Sessions.
Judge Simla & Sinnur Districts for an offenC;e under section 302
Jndlan ~
~
fQ( causing the death of Dhianu ( 60) and the latter's
daughter Nanti ( 40). Charie was also fra.m.ed against the accused
under section 3_92 read with section 397 Indian Penal~Code for havinz
at the time of the occurrence committed robbery. The leamed Sessions.
Jud~~ w~victed the accuse4 undet section 302 Indian Penal Code and
sen~ced him to ~ath. On appeal and refere~. the Hiih Court of
Himachal Pnidesh · afiinned the conviction and the sentence of death.
~
accused thereafter came up to this Court in appeal by special
k~~
.
.
.
The prosecution case is that Dhlanu deceastd was suffering from
leprosy. This disease had ~:esulted in partially destroying the hands and
f~t of Dhianu. For about a couple c# months before . the t-:ent
occurrence. Nanti, daugh~r of Dhianu, had been staying with • in
hi$ house in village Amra,hi. ~ro was no othei- hOUSQ neat the house
of Dhl~u. Dhianu did business of-money lendin~ on the s~ty of
ornaments.
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The-accused, it is stated. is a previous convict having been convicted
in cases under sections 380, 454 and 457 IIidian Peiial Code in the
years; 1955, 1957, 1%9, 1962 a.D.d ·.1963. He was sente;Jced to under-·
& .
go various tc{IDS of iinprisomnent in those cases~ nie last sentence of
imprisonment undergone by· the aa:used .'!'IS from December 17:, •
J963 to November 7, 1%7 on which day he was· rel~ed · !r001
Central Jail Nahan. O;o. Augmt 1, 1968 ·the . po~· pr~nted a
challan against the· aecused unde,r section '110 of the Olde ·of Crilninal_ .
Procedure in the eotirt _of District Magistrate Nahan. · Notice .urider ·. E • .
section 112 of the Code of Criminal Procedure was then issued to the
accused. _It was : serv~d upon him for September 16, 1968. As the
notice was not: received back, tbe" District Magistrate· adjourned the:
case to October ~~~ 1968 and the~eaftett ta November6,. 1968.
6n ~ lJ Asuj, which corresporuk to September 28, ·. 1968, . it. is
stated the a.cblsed went ·at evening time to the shop of Parma Nand · G
· · (PW '14) in village Paliara~ at a distance of three or four mil~ from
· the house of Dhianu. The accused sp-:nt the night with ~arma Nand •.
~On the morni.ilg of 14 Asuj, corresponding to September .2?,·
1968~ ·
· the accused gave Rs. 18 toParma Nand for purchase.ofliquor and
.fish. Fish was thereafter purchased by Panna Nand. The ~sed and
Panna Nand took liquor and fish on the evening of
1~ . Asuj. ; The
acCused then told Parma Nand that he had to meet· Dhianu of yi!Iage
. H
Amrahi and _that Parma Nand should serve the evening-meals to him.
Aftei taking bU meals; the accused left for the house of Dhianu
~eased. The way to village Amrahi . of Dhian~ was shown to · the
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!CALI RAM V, H. p, STATE (Khanna, ].)
725
accused by Parma Nand. At about mid-night hour on that night the
accused shouted to Parma Nand from outside the shop. Parma Nand
asked the accused to come in but the latter replied that he had some
work. The aC'CUSed tlierea.fter went away.
Dhianu deceased had two nephews, Hira Singh
(PW 1) and
Mehru (PW 10), who lived in village Lohara at a distance of half a
mile from the house of Dhianu. On October 1, 1968 Mehru went to
a Gharat (flour grinding place). On the way back Mehru did !lOt see
the .cattle of Dhianu grazing in the field. On reaching home, Mehru
tolq his brother Hira Singh that he had not seen Dhianu's cattle. Hira
Singh and Mehru then v,.oent to the house of Dhianu and found Dhlanu
and Nanti lying murdered in the courtyard of their house. The dead
bodies were covered with Cloth. On removing the clcth, Hira Singh
and Mehru noticed injuries on the he~:~ds of Dhianu and Nanti. The
bodies were in a state of decomposition. The. door of the residential
room was open and the goods were lying scattered. Hira Singh
infornied PW 3\ Udey Singh, Pradhan of the Gram Panchyat about
what he had seen. On the advice of the .Pradhan, Hira Singh went with
village c)low~idar to police station Renu~a, at a distance of six miles
from the place of odcurrence, and lodged there report PA at 1 a.m.
on October 2, 1968. On ' the following morning ASI Mohd. Sardar
(PW 49) accompanied by Hira Singh amved at the place of occurrence. Sub Inspector Attar Singh, who was away from the police
itation at the time the report was Jodgoo at the police station, on
leamitm of the occurrence also reached the place of occurrence at
about 9 a.m. on October 2, 1968. Sub Inspector Attar Singh prepared
inquest reports PB and PC relating to the dead bodies of Dhianu and
Nanti. The dead bodies were thereafter sent to Civil Hospital Renuka
where post mortem examination was performed by Dr. N. C. Jain
(PW 43) on October 3, 1968.
The case of the prosecution further is that on November 22,
1968 at 9.15 a.m. Kedar N<!th (PW 2), who was in those days a
clerk in Government High School, Ti.kri Dasakna, went to the shop
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of one Mulak Raj for buying soD]e goods. Near that shop Kedar Nath
saw. the accused, who was having a gun with him. The accused called
Kedar Nath and asked him to write a letter on hfs behaU to the
.oq,uty Corruuissioner. Mulak Raj then told Kedar Nath that the
acwsed was a dangerous man and that Kedar Nath should write the
letter 3$ desired by the accused. J(edar Nath tben told the accused that
he ha<J to go to th~ school and that he would write the letter after
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taking the. permission of the Head Master. The accused' thereupon
remarked that the Head Master was nobody and that the accused
would shoot him. Kedar Nath was at that time carrying a notebook.
At the dictation of the accused, Kedar Nath wrote a 22-page tetter
. on behalf of the. accused -addressed to the Deputy Commissioner
N:ahan. ln the qlurse of that letter, the accused referred to the previous
. c~ in w~. ~ had been convicted as well as to the proceedings .
H
u~e~ ~
110 of. the Cale oi Qiminal Procedure pending against
him. A~ng . to th~ accused, ~ had been directed by poJice Sub
Inspeotqr to repor.t .(W•ee _ at the PQiioe. station. The accused, however,
told the Sub Inspector that it was difticiJ.lt for him to do so. The
726
SUPREME COURT REPORT~
[_ 19741 1 s.c.R.
accused tried
to meet the Deputy Corrunissioncr at Nahan and the
Chief Minister of Himahcal Pradesh at Simla but could not do so. The
accused felt that as he had no money and no one would be prepared
to stand surety for him, he would have to go to jail. It was also mentioned by the accused that he had murdered Dhianu and Nanti because the accused had been told that Dhianu had Rs.
30,000 to
40,000 with him. After getting letter PD written from Kedat.· Natb, the
accused appended his signature to it. The accused further told Kedar
Nath not to disclose the matter to any one and that otherwise be
would kill him (Kedar Nath). The accused thereafter went to the
post office and sent the letter by registered post to the Deputy
Commissioner Nahan. The said letter was received in the office of the
Deputy Commissioner Nahan on November 27, 1968. No action was
taken on that letter.
On November 28, 1968, it is alleged, the accused met Sahi Ram
(PW 46). Sa hi Ram is the son of the Lambardar of village Shalahan.
Sahi Ram told the accused not to commit thefts. The accused then
told Sahi Ram that after being released from jail, he had been involved
in a case under section 110 of the Code of Criminal Prooedure. As the
aocused felt that no one would stand surety for him and as he would
have again to g;o to jail for two or three years, he decided to commit
such an offence as would bring money for his children. The accused
added that he had learnt that Dhianu was a rich man and that the
accused had oommitted the murder of Dhianu and his daughter.
According further to the confession made by the accused to Sahi Ram,
the accused was served meals by Nanti and Dhianu when he went to
their house. After Dhianu and Nanti had gone to sleep, the aCQUSCd
got up from his bed and thought of committing theft of the goods.
Feeling then began to weigh with the accused that Dhianu, who was
suffering from leprosy, would die of hunger. This circwnstance induced
the accused to kill Dhianu. Accordingly,. the accused gave blows to
Dhianu with a dhangra. Nanti then got up and, on seeing the injuries
of Dhianu, she became unconscious. The accused then went insidt
·the house of Dhianu and picked up a sword. With that sword, he gave
further blows on the head and neck of Dhianu. He also gave blows
with the sword to Nanti. It was further stated by the aceuied that he
found Rs. 180 in cash and silver ware weighing about two or three
kilograms. Sahi Ram then wrote letter PEEE dated November 28,
1968 to the Station House Officer of police station Renuka wherein
Sahi Ram apprised the Station House Officer of the extra judicial confes.•~ion made by accused to Sahi Ram. as mentioned above. Letter
PEEE was received at the police station on ~mber 2, 1968. Sub
Inspector Budh Ram (PW 50) then recorded the statement of Sehi
Ram. On December 20, 1968 Sub In$pector Attar Singh. on receipt
of information went to village Minus. On the night between December
20-21, 1968 the Sub Inspector surrounded a hotel wherein the accused
was stated to be present in village Minus. The accused was arrested
early on the morning of December 21, 1968 from that hotel. A gun,
dhangra P9, currendy notes of the value of Rs. 684 and some other
articles were taken into possession from the accused.
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KALI RAM V. H. P . STATE (Khanna, J.)
727
The case of the prosecution further is that silver ornaments and
other articles belonging to Dhianu and Nanti deceased, as well as some
ornaments which had been left with Dhianu as security for the money
lent by him were pawned by the accused to various persons after this
occurrence. Those ornaments and articles were after the arrest of the
acciUsed recovered at the instance of the accused trom the persons
with whom they had been pawned. After the recovery of the ornaments, Shri Malhotra magistrate on being moved by the police. mixed
the recovered ornaments with some other ornaments. Salkoot husband
of Nanti deceased, and one Zalmu identified the
recovered
ornaments as those which were with the two deceased persons.
The accused in his statement under section 342 of the Code cf
Criminal Procedure denied the various allegations made against him.
It was denied by the acCu-sed that he had stayed with Parma Nand
PW at his shop and that he had gone from that shop towards the
house of Dhianu deceased. It was also denied by the accused that he
had got letter PD written from Kedar Nath PW or that he had sent
the same to the Deputy Commissioner. The accused further denied
having made. any confession to Sahi Ram. It was also denied by the
accused that any ornaments had been recovered. at his instance. The
prosecution allegation about the recovery of dhangra from him was
likewise denied by the accused. According to the accused, Sahi Ram
PW and two others were engaged with him in doing the business of
opium smuggling. Sahi Ram and one other person misappropriated
goods worth Rs. 5000 whereupon there was a dispute between
thl!
accused and Sahi Ram. The accused added that he had been falsely
implicated in this case at the instance of Sahi Ram.
The trial court held that document PD wherein the accused had
made a confession about his having murdered Dhianu and Nanti had
been voluntarily got written by the accused. It was further held that
the accused had made an oral confession aoout his guilt to Sahi Ram
PW. The prosecution allegation that the ornaments belonging to the
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deceased persons were found in possession of the accused and had
been pawned by him was also accepted by the trial court. It was also
held by the trial court that the accused had stayed at the shop of
Parma Nand in village Paliara on the day preceding the occurrence
and that he had gone from that shop towards the house of the
deceased. The evidence of Parma Nand that the accused had shouted
to him from outside the sP,op at mid-night hour and that he had thereG · after gone. away was not accepted by the trial court.
H
On appeal and reference, the High Court uphe!d the findini of
the trial court with regard to the confession of the accused contained
ir. letter PD. The High Court also agreed with the trial court that
the accused had made confession to Sahi Ram as contained in Sahi
Ram's ietter PEEE. The High Court further upheld the findings of
the trial court regarding the stay of the accused with Parma Nand
before the occurrence.
The High Court agreed with the trial court
that the evidence of Parma Nand regarding the shout of the accused
at mid-night hour from outside the shop could not be accepted.
The
I .
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L1974 J 1 s.c.a.
High Court however, disagreed with t;he trial court . regarding its
finding abo~t the possession of silver ornaments belongmg to the two
deceased persons by the accused after the ~nee.
As regards
the recovery of dhangra, the Hign Court held ~at the same was not
shown to have been recovered from the possessiOn of the accused.
In ·appeal before us Mr. Y ogeshwar Prasad has · assailed
the
findings of the High eo'urt on the ? asis of which the High Court
arrived at the conclusion of the gudt of the accused.
It. has been
urged tbat the evidence adduced in support of those fi';lrl~gs i£ :n·
natcly unconvincing and it is not safe ~ base the con'?-ct.ton of the
accused on a capital charge upon such eVIdence. As agamst that, Mr.
Khanna on behalf of the State bas supported the findings of the High
Court and has ur~ed that no case has been made for interference v.itb
those fi.ndinp.
It cannot be disputed that Dhianu and Nanti were the victims of a
murderous assault. Dr. Jain, who performed the post mortem ex·
an:Unation on the two dead bodies, found tlle following two injuries on
the body of Dhianu :
"Injury (1)· A sharp wound injury over the left side
of the skull.
Injury over the scalp is running from outer
angle of the left eye to the middle of the f\lrehead, reaching
i" above the hair line. The whole socket of the left eye is
TUptured, frontal borie and part of tho parietal bono are completely fractured around the course of the wound. Wound is
St" broad and H" :above the left eye. Scalp and skull is •
completely separated from the line oi wound due t() decom·
position. Whole cranial cavity is seen through · the wound.
WbDie of brain matter and meninges have sloughed out.
Eye ball is also eaten up. .
(2.) A sharp wound over the forehead running from
the budge of the nose going towards the right frontal promin~~· W~uod is 4!" long taperin,g at both the ends and
i
Wide m the centre of the wound.
Margins are even.
Bones around the wound are completely fractured.
M:1g·
gots from the wound coming and going out. The rest of
th~ parts of the body. were normal except that they were in
a r;l;lte as described above.''
The following three injuries were found on the body of Nanti :
"A sharp wound over the scalp starting from forehead
on right. side i': from upper margt~ of middle of right eye
to the t1g.ht panetal bone on the same side· Wound is end·
loJ near ~he middle of parietal bone. 1 Wound is 7f'' long
and ~penng at both the ends.
WoWld is .l" apart at the
pronune?ce of the right frontal bone. · Skull underneath the
~
1s completely fractured. Due to this injury, whole
!Xlntr bones of right eye and bones of the bridge of nose
· ~. comtUteiy fr~tured. .Piece. ol bones arc clearly ~een
JD the hollow of the akul!.
And one can nicely peep intO
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WO\Uld apart by fingers.
M&ri\OS of th:e Wt1Wl4, ~
e~
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·
(2) A. sharp cut wound of 8" size starting from H"
. ~'c'e tb.e middle of left c:yo having a semilunar shape,·
reltChi.oi to the r,nosl promiDen~ part of the occipital bone.
Wound is tapering at bot& the ends, margins are even.
Scalp. arxl skull is compksly apart. Skull dunng the course
of wound is. CQDlpktely fractured and depressed at the places.
(3) Neck injury. ·A d~ sharp wound starting from
the right ·angle of the mandi~e to ~
X1li~ ot the neck
and reaching to !" short of larynge;aJ ~nee, wound
is 2!" deep at the- angle of tbe m~
and tapering towards the midq~ of neck. AU underlying structures, nerves,
arteries, veins. are cu~ laryn~al prominence is also fracturedWound is 3" long and !" broad.~
According to Dr. Jain, tbe injp~ on the bodies of Dhianu, and ·Nanti
~-been c~~-~
a_ hea"zy s.haip weapon.· The injuries were
~Dt in ··tlii .'~
·cow:se of nature to cause death.
1be ease of the pirisecution is that the injuries to Dhianu
and
Nantj d~ased were caused by the accused. The accused has, how·
ever, denied this allegation. In order to bring the charge home to.
the accused, the prosecution led evidence on a number of points. The.
High Court . accepted the prosecution allegation in this respect and.
based its conclusion upon t~e following three pieces.of evidence:
(1) The evidence of Parma Nand that the accused had
stayed with him on September 29, 1968 and had on the
evening of that day proceeded towards. the bouse of Dhianu
deceased after he had. been shown the way by Parma Nand.
(2) The confession of the accused contained in letter
PD.
, ( 3) fhe extra judici:il confession made by_ the
accused
to Sah1 Ram incorported in letter PEEE.
..
We may first deal with the deposition of Parma Nand (PW 14). The
deposition consists of. thr~e parts. The first part relates to the stay
of the accused· with Parma Nand at his shop in village Paliara . on
September 28 and 29, 1968 when some fish and liquor are stated to
have· been- taken by the accused and Parma Nand. This part of the
deposition relates to an innocuous circumstance and hardly connects the accused with
the ·crime. The ·second part of
the
· deposition is ro the effect that the accused on the evening of S_eptem·
ber 29, 1968 told Parma Nand that he had to go to the house of
Dbianu and that Parma Nand showed at the instance ot the accu.Sed
the way which leads to the house of Dhianu at a distance of three
or four· mile~ from the shop of Parma Nand. We find it difficult to
accept this part of the deposition of Panna Nand .. Panna Nand
admi~ that ho came to knoW' of the murder of Dhianu and Nanti
about. roue ·~s. after tho56 perwns were found to have been murder·
ed: Tt woUld;· therefOre~ follow: that Parma N a·nd came to know of
730
SUPREME cpURT REPORTS
[ 1974] 1 s.c.ll.
the murder of Dhianu and Nanti on or about October 4, 1968. Had
the accused left for the house of Dhianu deceased on the evening
of September 29, and had Parma Nand PW come .to know that
Dhianu and Nanti were mutdered in their house, this fact must have
aroused the suspicion of_ Panna Nand regarding the complicity of the
accused.
Panna Nand, however, kept quiet in the matter and did
not talk of it.
The statement of Panna Nand was recorded by the
police on December 1.1, 1968. It a witness professes to know about
a gravely incriminating circumstance against a person accused of the
offence of murder and the witness keeps silent for over two months
regarding the said incriminating circumstance against the accused, ·his
-statement relating to the incriminating circumstance, in the absence of
any cogent reason, is bound to lose most of its value. No cogent
reason has been shown to us as to why Papna Nand kept quiet for
over two months after coming to know of the murder of Dhianu and
Nanti about the fact that the accused had left for the house of the
deceased shortly before the murder. We are, therefore, not prepared to
place any reliance upon the second part of the deposition of Parma
Nand. The third part of the deposition of Parma Nand PW pertains
to the shout of the accused from outside the shop of Parma Nand at
about mid-~ight hour on the night of occurrence. This part of the
deposition has not been accepted by the trial court and the High Court
and we find no valid reason to take a different view.
Comini!; to the confession of the accused, which is alleged to be
incorporated in letter PD, we find that the question which arises for .
<:onsideration is whether the letter sent by the accused to tho! DepuJy
Commissioner contained confession about his having murdered Dbtanu
and Nanti.
The fact that a registered letter purporting to be from
the accused was received in the office of the Deputy Commissioner
cannot be disputed.
The ~ontroversy before us has, however, ranged
<>n the point whether the letter contained any confession regarding the
murder of Dhianu and Nanti by the accused or whether L1at portion
of the letter has been subsequently inserted. In this respect we find
that letter PD is on loose leaves.
It is only the first leaf of the letter
which bears the stamp of the office of the Deputy Commissi~er, while
the remaining leaves have not been stamped· In the circumstances,
it was not difficult to replace or adg some other leaves.
According
to PW Sundar Singh, who was working as postmaster at Kurag during
the relevant days, the letter addressed by the accused to the Deputy
Commissioner consisted of 18 or 19 pages.
Letter PD produced at
the trial consists of 22 pages.
PW 21 Mehta,
Superintencf~nt of
Deputy Commissioner's office, has deposed that on receipt of Jetter
PD; he read that letter.
An entry was then made in the diary that
letter PD related to the subject of jail dispute. Had the letter addressed by the accused to the De"puty Commissioner contained confession
about a double murder committed by the accused, it is difficult to
believe that the Superintendent of Deputy Commissioner's office would
have after reading the letter kept quiet and not brought it to the notice
of the authorities concerned. The fact that no action was taken on
the letter till it was taken into possession by the police on Janufl.ry 1,
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KALI RAM V, H. P. STATE (Khanna, /,}
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1969 lends support to the contention that letter PD did not contain ,
the confession. The portion of the letter relatmg to the co!Jfession is
also somewhat incongruous with the entire tenor and context of the
letter. The letter appears to have been sent by the accused to the
Deputy Commissioner ~9 show that after his release from jail in 1967,
the accused had tumed .a new leaf and he wanted the Deputy Commissioner to giv~ him help and relief so that the accused might rehabilitate himself and support his family.
It is not likely that a person
asking for relief would. make a confession that after his release from
jail, he has committed two murders.
The circumstances in which the accwed is stated to have got let·
ter PD written from Kedar Nath (PW 2) are also rather peculiar.
According to Kedar Nath, the accused compelled Kedar Nath at the
point of gun to write that letter.
The accused also told Kedar Nath
not to disclose the contents of the letter to any one. It is not clear as
to why the accused should ask Kedar Nath to keep the matter secret
when he was himself, according to letter PD, making a. confession
about his having committed the crime of two murders. Apart from
that, if Kedar Nath c~me to know on November 22, 1968 that the
accused had committed the murder of Dhianu and Nanti, his faill:ll'e
to make any statement tQ the police till December 24, 1968 regardin1
the confession made by the accused to the witness would deprive ~
evidence of much of its value. We, therefore, tind it difficult to act
upon the confession incorporated in letter PD.
The last piece of evidence upon which the High Court has maintained the conviction of the accused consists of the confession of the
accused contained in letter PEEE sent by Sahi Ram (PW 4) to· the
Station House Officer Renuka. The first question which arises for
consideration in respect of letter PEEE is whether it is admissible in
evidence.
Section 162 of the Code of Criminal Procedure reads as
under:
"162. (1) No statement made by any person to a police
officer in the course of an investigation under this Chapter
shall, if reduced into writing, -be signed by the person making
it; nor shall any such statement or any record thereof, whether
in a police diary or otherwise, or any part of such statement
or record, be used for any purpose (save· as hereinafter
provided) at any inquiry or trial in respect of any offence
under investigation ~t the time when such statement was
made:
Provided that when any witness is caned for the prosecu..,
tion in such inquiry or trial whose statement has been reducel
into writing as aforesaid, any part of his statement, if duly
proved, mav be used by the accused, and with the permission of the Court, by the prosecution to contradict such wit·
ness in the manner provided by Section 145 of the Indian
Evidence Act; 1872 and when any part of such statement is.
732
Si.:PREM~:; COURT REPORT:S
[ H74 J 1 s.c.R.
so used, any part thereof may also be used in the re-examination of sucn wttness, but for the purpose o11ly of explairting
any ~ter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply
to any statement falling within the provisions of Section 32,
clause ( 1) of the Indian Evidence Act, 1872, or to affect the
provisions of Section 27 of that Act."
.Bare perusal of the provision . reproduced above makes it plain that
.the statement made by any person to a police officer in the course of
an investigation cannot be used for any purpose except for the purpose
.. of contradicting a witness, as mentioned in the proviso to sub-section
( 1 ) , or for. the purposes mentioned in sub-section ( 2) with which we
.are not coacemed in the present case. The prohibition contained in
the section relates to all statements made durina the course of att
investigation. Letter PEEE which was addressed by Sahi Ram
to
. Station House Officer was in the nature of narration of what, according
to Sahi Ram, he had been told by the accused.
Such a letter, in our
opinion, would constitute statement for the purpose of section 162
of the Code of Criminal Procedure.
The prohibition relating to the
u!e of a statement made to a police officer during the course of an
investigation cannot be set at naught by the police officer not himself
recording the statement of a person but having it in the form of a
communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course
of an investigation is inadmissible, except for the purposes mentioned
in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course
of an investigation· It is not permissible to circumvent the prohibition
contained in section 162 by the investigating officer obtain a written statement of a person instead of the investigating officer hjmsetf
recording that statement.
It has been argued by Mf. Khanna on behalf of the State that at
·the time letter PEEE was addressed by Sahi Ram to the police, no
investigation had been made by the police against the accused and, as
·such, the aforesaid letter cannot be held to be inadmissible. This contention, in our opinion, is wholly devoid of force.
The restriction
placed by section 162 on the use of statement made during the course
of investigation is in general terms. There is nothing in the section
to show that the investigation must relate to any particular accused
before a ,statement to the police pertaining to that accused can be
held to be inadmissible.
Reference has been made by Mr. Khanna to the case of Slta Ram
v. State of Uttar Pradesh(l) wherein it was held by majority that a
letter addressed by the accused to a sub-inspector of police containing
his confession ~was not inadmissible under section 25 of the Indian
Evidence Act.
There is nothing in the aforesaid judgment to show
that the tetter in question had been written during the course of tke
•(J) [1966) Supp. S. C. R. 265.
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.KALI RAM V. H.P. STATE (Khanna, ]. )
733
investigation 61 the case. As such, this Court in that . ~ase did . not
cCMsidef the questioft as to whether the letter _ia.· question was mapmiwslble under sectron 162 of the Code of Cnminal Procedure. As
sd, tb State cannot de~ve much help from that authority.
We would therefore hold that letter PEEE is inadmissible in evi-
•
.
dence.
Although letter PEEE has been held by us to be inadmissible. we
would still have to deal with the oral deposition of Sahi Ram that the
accused had made a confession to him on November 28, 1968. The
version of the accused in . this respect is that Sahi Ram is inimical to
him as he had a dispute with him because of some misappropriatioa
committed by Sahi Ram in connection with the smuggling of opium.
According to Sahi Ram, h~ happened to meet the accused on November 28, 1968 when the accused made a confession to him about his
having committed the murder of Dhianu and Nanti. The story about
the gratuitious confession made by· the accused to Sabi R;un, in our
opinion, hardly inspires confidence. It is not the case of the prosecu·
tion that the police was ~ter the accused and that the accused in that
connection went to Sabi Ram to seek his help and made a confession
to him. Sahi Ram is the son of a village lambardar.
It has beell
argued on behalf of the accused-appellant that the police, with
a
view to see that the crime relating to the murder of Dhianu and Nanti
might not remain untraced, utilised the services of Sahi Ram foc
bringing in the evidence regarding the extra-judicial confession of the
accused. Looking to all the circumstances we find this contention to
be not devoid of all force. Mr. Khanna submits that both the trial
court and the High Court have accepted the evidence of Sahi Ram
and we should not interfere with the concurrent finding in this respeCt.
We find it difficult to accede to this submission because we
find that both the trial court as well as the High Court were influenced
by the fact that Ex. PEEE was admissible in evidence. As letter
PEEE has been held by us to be not admissible and as we find that
the statement of Sahi Ram about the extra-judicial confession is
otherwise also lacking in credence, there should not arise any difficulty in this Court disaggreeing with the above finding of the trial court
and the High Court.
Mr. Khanna on behalf of the State has also tried to assail the finding of the High Cc-.nt regardins the possession of silver ornaments of
~
two dece.ased pers~ns by the accused· In our opinion, the findmg of th~ High Court xn thts respec~ is based upon the appraisement
of the evJdence on record and there ts no valid .ground to disturb it.
Observations in a recent decision of this Court, Shivaji Sahabrao
B<Jbade & Anr. v. State of Maharashtra(l) to which reference has been
made during arguments were not intended to make a departure from
the rule of the presumption of innocence of the accused and his entitle·
ment to the benefit of reasonable doubt in criminal cases.
One ,of the
cardinal principles which has always to be kept in view in our ~'Ystem
(I) Cr· App. Ho. 26 of 1970, decided on August 2,7, 1973
734
SUPRE~E COURT REPORTS
[ 1974 r 1 S.C.R.
of administration of justice for criminal cases is that a person arraignA
ed as an accused is presumed to be innocent unless that presumption
is rebutted by the prosecution by production of evidence as may ~how
him to be guilty of the offence with which he is charged.