# _,,. RAMKISHAN MITHANLAL SHARMA v. THE STATE OF BOMBAY

- **Citation:** [1955] 1 S.C.R. 903
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** Bhagwati, Jagannadhadas, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramkishan-mithanlal-sharma-v-the-state-of-bombay-1217
- **Pages:** 38

## Headnote

903
Code of Criminal Procedure (Act V of 1898), s. 162-Whether
applicable to investigations under the City of Bombay Police Act
(Bombay Act IV of 1902) prior to its repeal by Bombay Act XXII
of 1951-Evidence relating to
test identification
parades-Whether
and under what circumstances admissible under s. 162 of the Code of
Criminal Procedul'e.
Indian Evidence Act (I of 1872), s. 27-Evidence that discovery
was made "in consequence of information given by the accused" or
"at the instance of the accused", whether admissible, when the admissible part of the information given is not sought to be proved.
Code of Criminal Procedure (Act V of 1898), ss. 297, 298, 537Charge
to the
Jury-Duty of
fudge-Misdirection-Effect oflndian Evidence
Act (I of 1872), s. 167-Improper admission or
rejection of evidence-Effect of-Duty of Appellate Court in hearing
appeal.
Investigation in this case was started on the 20th April, 1951,
under the City of Bombay Police Act (Bombay Act IV of 1902),
the provisions of the
Code of Criminal Procedure being then inapplicable to
Bombay City Police by virtue of s. 1 (2) (a) of the
Code.
In 1951, the Bombay Police Act (Bombay Act XXII of 1951)
was passed by which both the Bombay Act IV of
1.902 and the
provision in s. 1 (2) (a) of the Code of Criminal Procedure in so far
as it made the Code inapplicable to
Bombay City Police, were
repealed.
This Act came into force on 1st August, 1951, and after
that date the provisions of the Code of Criminal Procedure became
applicable to investigations by the Bombay City Police.
Under s. 63 of the City of Bombay Police Act (Bombay Act
IV of 1902), no statement made by a person to a
Police Officer
during investigation, reduced
to writing, may be used in evidence,
while under s. 162 of the Code of
Criminal Procedure the ban
applies also to oral statements made to a Police
Officer
during
investigation, not reduced to writing.
Held, that s. 162 of the Code of
Criminal
Procedure by its
very context and terms, applied to investigations conducted under
Chapter XIV of the Code, and could
not operate retrospectively
and apply to investigations conducted prior to 1st
August, 1951,.
by the Bombay City Police, as they were not investigations conducted under Chapter XIV of the Code.
The test identification
parades in regard to accused I and 2 having been held prior to the
1st August, 1951, s. 162 of the Code did not apply to the evidence
2-89 S.C. India/59
October 22.
1954
Ramkishan
Mithanlal Sharma
v.
T/u State of
Bomb aye
. 904
SUPREME COURT REPORTS
[1955]
received in regard to these parades, but the section applied to the
evidence relating to
the test indentification
parades in regard to
accused 4 as these were held after 1st August, 1951.
Banwari Cope v. Emperor (A.LR. 1943 Patna 18) and Delhi
Cloth Mills v. Income-tax Commissioner, Delhi (A.LR. 1927 P.C.
242), referred to.
~fhe purpose of identification parades being to enable witnesses
to identify the properties involved or the persons concerned in the
offence
under investigation,
the
very
process
of identification
involves a statement by the identifying witness that the particu~ar
property or person identified was concerned in the offence.
This
statement may be express or implied.
Such a state1nent, whether
express or implied, including signs and gestures, would am<?unt ro
a con1munication of the fact of identification by the identifier to
another person, and where the identifications are
held in the presence of the Police, such communications are tantamount to statements made by the identifiers to a Police Officer in the course of
investigation and cotne within the ban of: s. 162 of the Code. The
physical fact of identification has no separate existence apart from
the statement involved in the very process of identification, and in
so far as a Police Officer seeks to prove the fact of such identification, such evidence would be inadmissible under s. 162 of the C:::ode,
the only exception being the evidence sought to be
given by
the

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S.C.R.
SUPREME COURT REPORTS
_,,.
RAMKISHAN MITHANLAL SHARMA
v.
THE STATE OF BOMBAY.
[And Two Connected Appeals]
[BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.]
903
Code of Criminal Procedure (Act V of 1898), s. 162-Whether
applicable to investigations under the City of Bombay Police Act
(Bombay Act IV of 1902) prior to its repeal by Bombay Act XXII
of 1951-Evidence relating to
test identification
parades-Whether
and under what circumstances admissible under s. 162 of the Code of
Criminal Procedul'e.
Indian Evidence Act (I of 1872), s. 27-Evidence that discovery
was made "in consequence of information given by the accused" or
"at the instance of the accused", whether admissible, when the admissible part of the information given is not sought to be proved.
Code of Criminal Procedure (Act V of 1898), ss. 297, 298, 537Charge
to the
Jury-Duty of
fudge-Misdirection-Effect oflndian Evidence
Act (I of 1872), s. 167-Improper admission or
rejection of evidence-Effect of-Duty of Appellate Court in hearing
appeal.
Investigation in this case was started on the 20th April, 1951,
under the City of Bombay Police Act (Bombay Act IV of 1902),
the provisions of the
Code of Criminal Procedure being then inapplicable to
Bombay City Police by virtue of s. 1 (2) (a) of the
Code.
In 1951, the Bombay Police Act (Bombay Act XXII of 1951)
was passed by which both the Bombay Act IV of
1.902 and the
provision in s. 1 (2) (a) of the Code of Criminal Procedure in so far
as it made the Code inapplicable to
Bombay City Police, were
repealed.
This Act came into force on 1st August, 1951, and after
that date the provisions of the Code of Criminal Procedure became
applicable to investigations by the Bombay City Police.
Under s. 63 of the City of Bombay Police Act (Bombay Act
IV of 1902), no statement made by a person to a
Police Officer
during investigation, reduced
to writing, may be used in evidence,
while under s. 162 of the Code of
Criminal Procedure the ban
applies also to oral statements made to a Police
Officer
during
investigation, not reduced to writing.
Held, that s. 162 of the Code of
Criminal
Procedure by its
very context and terms, applied to investigations conducted under
Chapter XIV of the Code, and could
not operate retrospectively
and apply to investigations conducted prior to 1st
August, 1951,.
by the Bombay City Police, as they were not investigations conducted under Chapter XIV of the Code.
The test identification
parades in regard to accused I and 2 having been held prior to the
1st August, 1951, s. 162 of the Code did not apply to the evidence
2-89 S.C. India/59
October 22.
1954
Ramkishan
Mithanlal Sharma
v.
T/u State of
Bomb aye
. 904
SUPREME COURT REPORTS
[1955]
received in regard to these parades, but the section applied to the
evidence relating to
the test indentification
parades in regard to
accused 4 as these were held after 1st August, 1951.
Banwari Cope v. Emperor (A.LR. 1943 Patna 18) and Delhi
Cloth Mills v. Income-tax Commissioner, Delhi (A.LR. 1927 P.C.
242), referred to.
~fhe purpose of identification parades being to enable witnesses
to identify the properties involved or the persons concerned in the
offence
under investigation,
the
very
process
of identification
involves a statement by the identifying witness that the particu~ar
property or person identified was concerned in the offence.
This
statement may be express or implied.
Such a state1nent, whether
express or implied, including signs and gestures, would am<?unt ro
a con1munication of the fact of identification by the identifier to
another person, and where the identifications are
held in the presence of the Police, such communications are tantamount to statements made by the identifiers to a Police Officer in the course of
investigation and cotne within the ban of: s. 162 of the Code. The
physical fact of identification has no separate existence apart from
the statement involved in the very process of identification, and in
so far as a Police Officer seeks to prove the fact of such identification, such evidence would be inadmissible under s. 162 of the C:::ode,
the only exception being the evidence sought to be
given by
the
identifier himself in regard to his mental act of identification which
he would be entitled to give by way of corroboration of his identification of the accused at the trial.
Where the Police Officers arrange the parade, produce the persons who are
to be mixed up with the
accused, and withdraw,
leaving the actual parade solely and exclusively in charge of Panch
witnesses, and the process of identification is carried out under the
exclusive direction and supervision of the Panch witnesses,
the
statements involved in the process of identification would be statements made by the identifiers to the Panch witnesses and would be
outside the purview of s. 162 of the Code.
Khabiruddin v.
Emperor (A.LR. 1943
Cal. 644);
Surendra
Dinda v. Empergr (A.LR. 1949 Cal. 514); and
Daryoo
Singh v
State (A.LR. 1952 All. 59), approved.
In re Kshatri Ram Singh
(A.LR. 1941 Mad. 675) ; Guruswami Thevan v.
Emperor
(1936
M.W.N. 177) and Ramdhin Brahmin v. Emperor (A.LR. 1929 Nag.
36), disapproved.
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh ([1954]
S.C.R. 1098) and Abdul Kader v. Emperor (A.LR. 1946 Cal. 452),
referred to.
Per
JAGANNADHADAS
J.-Differentiation
between
the
evidence 9£ a Police Officer and that of Panch witnesses and identifying
witnesses relating to the fact of prior identification in a parade
held by a Police Officer on the ground of the latter being corroboraw
tive evidence, is unsound and inadmissible, and the evidence of the
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-
S.C.R.
SUPREME COURT REPORTS
905
Panch witnesses and identifying witnesses relating to the fact of
prior identificatim1
would be
inadmissible even as
corroborative
evidence.
Section 27 of the Indian Evidence
Act is 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.
Kottaya v. Emperor (A.LR. 1947 P.C. 67), referred to.
Where evidence was given by a Police Officer that "in consequence of a certain statement made by the accused" and "at the
instance of the accused", a tin box was dug out of a mud house, and
the nature of the statement made or information given
by
the
accused was not sought to be proved, s. 27 was not attracted and
prima facie there was
nothing
to
prevent the evidence being
admitted against the accused concerned.
Dur/av Namasudra v. Emperor ([1931] LL.R. 59 Cal. 1040),
referred to.
Per
JAGANNADHADAs
J.-There is
considerable force
in the
objection that when a Police Officer speaks to a discovery being
made "at the instance of the accused" or "in consequence of information given by the accused'', the prosecution cannot be permitted
to rely on such evidence without placing the admissible portion of
the information on record.
The information given by the accused
in such a situation may be such as, on scrutiny, might show only
his remote connection and not direct connection with the objects
recovered.
In such a situation, evidence of the bare fact of information having been given may cause serious prejudice.
Summing up to the Jury does not mean merely giving a summary of the evidence.
The Judge should mar shall
the evidence
so as to bring out the lights and the shades, the probabilities and
improbabilities, so as to give proper assistance to the Jury who are
to decide which view of the facts is true.
The charge should not
consist of a long rambling repetition of the evidence, without any
attempt to marshall the facts under appropriate heads, or to assist
the Jury to sift and weigh the evidence so that they may be in a
position to understand which are the really important
parts of
the evidence and which are of secondary importance.
flu v. Emperor (A.LR. 1934 Cal. 847) and Nabi Khan v. King
Emperor (A.LR. 1936 Cal. 186), referred to.
Held, that as regards accused 4 there had been an error of law
in admitting evidence of the test
identification
parades relating
to him.
The admission
of such
inadmissible
evidence
would
amount to a misdirection; but misdirection
by itself
would not
be a ground for reversal under s. 537 of the Code unless such misllirection had in fact occasioned a failure of justice, nor is reception
Ramkishan
Mithanlal Sharma
v.
The State of
Bomb'i)I.
1954
Ramkishan
Mithanlal Sharma
v.
The Slat1 of
Bombay.
906
SUPREME COURT REPORTS
[19551
of evidence
ii1admissible
under s.
162 of the Code
necessarily
f4tal.
The Appellate Court has to see whether
the reception of
inadmissible evidence influenced the mind of the jury so seriously
as to lead them to a conclusion which might ha\'e been different but
for its reception. What the
Appellate
Court should do is to
exclude the inadmissible evidence
fron1 the
record and consider
whether the
balance
of evidence
is sufficient
to maintain
the
conviction. The Court of Appeal should take the whole case into
consideration and determine for itself \vhether the verdict of the
Jury \Vas justified or whether there had in fact been a failure of
justice.
The Court of Appeal is entitled to substitute its own verdict
for the verdict of the Jury if on examining the record for itself it
comes to the conclusion that the verdict of the Jury was erroneous
or that there had been a failure of justice in the sense that a
guilty man has been acquitted or an innocent man has been convicted.
Abdul Rahim v. King Emperor ( (1946) L.R. 73 I.A. 77, Mushtaq
Hussain v. State of Bombay ([1953] S.C.R. 809), Jiu v. Emperor
(A.LR. 1934 Cal, 847); Nabi Khan v.
Emperor (A.LR. 1936 Cal.
186); Khabiruddin v.
Emperor (A.LR.
1943 Cal. 644);
Surendra
""
Dinda v. Emperor (A.LR. 1949 Cal. 514) and Mathews v. Emperor
(A.LR. 1940 Lahore 87), referred to.
CRIMINAL
APPELLATE
JuR1smcTION :
Criminal Appeals Nos. 4, 23 and 28 of 1954.
Appeal by Special Leave granted by the
Supreme
Court by its Order dated the 2nd April, 1953, from the
Order dated the 12th January, 1953, of the
High Court
9f Judicature at Bombay in Criminal Appeal No. 22 of
1953, arising out of the Judgment and Order dated the
6th October, 1952, of the Court of
Sessions
Judge,
Greater Bombay, in Case No. 20 of 1952.
A. K. Basu (/. B. Dadachanji and Naunit Lal, with
him) for the appellant in Criminal Appeal No. 4 of 1954.
T. Godiwala and B. P. Maheshwari for the appellant
in Criminal Appeal No. 23 of 1954.
/ai Gopal Sethi (B. P. Maheshwari and T. Godiwala,
with him) for the appellant in Criminal Appeal No. 28.
M. C. Setalvad, Attorney-General for
India (Porus
A. Mehta and P.
G.
Gokhale, with
him)
for
th~
respondent.
1954. October 22. The Judgment of Bhagwati and
Venkatarama
Ayyar JJ. was
delivered by
Bhagwati J.
Jagannadhadas J. delivered a separate Judgment .
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S.C.R.
SUPREME COURT REPORTS
<)07
BHAGWATI J.-Anokhelal Ranjit Singh, original ac-
<:Use<l 1 and appellant in Criminal
Appeal No. 28 of
1954, Harnarain
Nanakchand, original
accused 2 and
appellant in Criminal Appeal No. 23 of 1954 and Ramkishan Mithanlal Sharma, original accused 4 and appellant in Criminal Appeal No. 4 of 1954, along with one
Rubidas
Radhelal, original accused 3 since
deceased
and one
Bankelal
Devisingh still absconding
were
charged under section 397 read with section 395 of the
Indian Penal Code with having committed decoity and
used deadly weapons at the time of
committing
th5'.
same and were also charged under section .396
of the
Indian Penal Code with having committed the murder
of Lawrence Quadros at the same time and place and
in the course of the same transaction while committing
the said dacoity. The trial was held before the Sessions
Judge for Greater
Bombay with the aid of a special
jury. The jury returned unanimous
verdicts
of guilty
against each of the accused and
the learned Sessions
Judge convicted them and sentenced each of them to
transportation for life:.
An appeal filed by them to the
High Court of Judicature at
Bombay was summarily
<lismissed.
Special leave was granted to them to appeal
to this Court and these three special leave appeals have
now come on for hearing and final disposal before us.
The prosecution alleged that the Lloyds Bank Ltd.
had a 'branch situated at
Hornby Road and had three
entrances, the main one on
Hornby Road and
two
others on Outram Road and Bastion Road. It was
<:Ustomary for the
Bank to send cash from time to time
to the
Reserve
Bank
whenever the
Head
Cashier
thought that there was a surplus.
On a day previous
to the day when cash was to be sent, the
Head Cashier
would give the currency notes to the
Assistant Cashiers.
As a token of having checked up the notes each of the
Assistant
Cashiers would put their signatures on the top
and the bottom notes in a bundle containing 100 notes
of Rs. 100 each, and
would
affix thereon
the rubber
11tamp of the Bank. These notes then would be tied up
in what are known as "thappis" each "thappi" consisting of 10 bundles of
100 notes each. On the day that
the cash was to be sent an escort party would go to the
1954
Ramkishan
Mithanlal Sharma
v.
The State of
Bomba)'·
Bhagwati J.
1954
Ramkishan
Mithanlal Shanna
v.
The State of
Bombqy.
Bh•gwati].
908
SUPREME COURT REPORTS
[1955]
Reserve Bank with the cash consisting of two Assistant
Cashiers, one European Officer and a peon. The Assistant
Cashiers would then put the ,cash into a leather
bag which bag would be attached by an iron chain to
the person of the peon.
The Lloyds
Bank it appears
had received a large deposit from
the
Bank of Iran a
few days prior to the day in question and it was decided that an amount of
Rs. 12
lakhs should be sent to
the Reserve Bank of India on the 20th April, 1951.
In the morning of the 20th April, the
escort party
consisted of
Brightling, Sarkari and
Doctor and the
peon Rama Madura and taxi No. BMT 1829 was summoned to carry the party to the Reserve Bank. The
escort party emerged from the rear door of the Bank
and went up to the taxi.
Bala Gopal Kadam, a watchman, was on duty on Bastion Road.
When the escort ·
party came out, the taxi's bonnet was in the direction of
the Empire Cinema and the driver Lawrence Quardros
was at the driver's seat.
Brightling
got into the
taxi
first and took his seat on the rear seat and was followed
by Rama Madura.
Sarkari went round in front
an<l
took his seat next to the taxi driver. Rama Madura
after entering the taxi placed the bag on the taxi''5
floor and was about to take his seat. Doctor was standing with his left hand on the rear door of the taxi on
the Bank side waiting for
Rama
Madura to take his
seat. It was at this juncture that accused 1, 2 and 4,
Rubidas and
Bankelal attacked the taxi and the escort
party. One of these persons first wrenched
open the
door to the taxi driver's
seat, leaned inside
and fired
twice with a revolver. One of these shots caused an
injury to Lawrence Quadros near the collar bone, which
almost imlantaneously
caused his death and his body.
came out with the head first.
The man who so shot
after leaning into the taxi went round the front of the
taxi and took his seat next to the driver's seat.
There
was another man behind this one when the driver was
shot, and he pulled out Lawrence Quadros from the
taxi and took his seat at the steering wheel. That man
was Rubidas-one time a motor driver in the employ
of the Pan American Airways at Delhi. Accused 1 also
armed with a revolver stood on the road side of the
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S.C.R.
SUPREME COURT REPORTS
909
taxi. and fired twice at the taxi from that side and accused 2 and 4 were either at the back or on the Bank
side and were also armed with revolvers.
Sarkari first
thought that these shots were tyre-bursts and naturally got out of his seat to inspect the tyres but hearing
further shot~ lie realised
that an attempt was
being
made to loot the cash. He got frightened and went in
the direction of Outram Road.
Brightling got out of
the taxi, first went a little towards the back of the taxi
and then seeing that the taxi was surrounded, zigzagged and went towards the junction of Outram and
Bastion Roads where he tried unsuccessfully to stop a
passing car. Accused 1 who was firing at the taxi came
nea:r it, opended the back door of the taxi on the road
side with his shoulder and got into the taxi. Accused 2
came towards the rear door of the taxi on the Bank
side and fired at Doctqr injuring him on the dorsum of
his left palm.
Kadam at about this time raised his
baton, realising that Doctor was in danger
whereupon
accused 2 shouted "Khabardar, chhod do chale jao,
bhago" or words to that effect and shot at him injuring
him in his right eye. That injury resulted in the total
loss of his right eye.
Both the accused 2 and 4 were
armed with revolvers.
A driver by name Sarvarkhan,
was sitting on the foot-path near the taxi and seeing
the body of Lawrence Quadros falling out of the taxi
he tried to go up to him but the accused 4 prevented
him from doing so shouting at him "khabardar" and
threatened him with his revolver."
During the course
of the attack someone
of these men shot
at
Rama
Madura.
Rama
Madura became
unconscious
and
accused 2 and another dragged him out from the taxi.
The taxi was then started whereupon
Brightling, who
was still on Bastion Road, after making signals to the
Cash Department to show as to what was taking place
picked up a motor cycle parked near the corner of the
Parsi Lying-in-Hospital and threw it in the way of the
taxi but Rubidas, who was driving that taxi, managed
to drive it away.
The taxi however had to be first
driven at a slow speed
and one Major Casey, who was
standing at the corner of the foot-path· saw the whole of
the incident and also those inside the taxi when it was
1954
Ramkishan
Mithanlal Sharma
v.
TheState of
Bombay.
BhagwatiJ.
1954
Ramkishan
Mitl;anlal Sharma
v.
Tht Stateof
Bombay.
BhagwatiJ.
910
SUPREME COURT REPORTS
[1955]
driven past him. The prosecution alleged that accused
1, 2 and 4, Rubidas and
Bankelal
surrounded
and
attacked the taxi and its inmates and after snatching
away the bag tied to Rama Madura's belt with the cash
containing
Rs. 12 lakhs
drove
away in that taxi.
Brightling and some other employees of the Bank after
some time secured a car which was parked nearby and
went round in search of the taxi but to no purpose.
Brightling then reported the matter to the
Esplanade
Police
Station but before that the telephone operator
of the Bank, Mrs. Paterson who with Miss Vida Palmer,
a clerk, had seen the incident from 'the window on the
mezzanine floor had telephoned to the police and several
police officers arrived at the
Bank soon after.
Lawrence
Quadros was already dead and his body was sent to the
morgue.
Doctor, Kadam and Rama Madura, who had
all been injured, were sent to St. George's
Hospital.
The taxi which was driven away by Rubidas with the
accused and Bankelal seated therein was found abandoned at about 1-30 P.M. on that very
day
by the
police not far from the
Kashmir Hotel.
The police made
various efforts to trace accused 4
and Bankelal but \Vere unable to find them
and they
therefore charge-sheeted accused 1, 2 and Ruhidas (who
was original accused 3) and they were all committed to
stand their trial in the
Sessions
Court.
After those
proceedings were over the accused 4 was
arrested on
the 25th
December, at Bareli
Station, and he too was
charge-sheeted and was committed to Sessions.
Rubidas, the original accused 3, died on the 3rd August,
1952, with the result that accused 1, 2 and
4 stood
their trial on . the charges under sections 395, 397 and
396 of the Indian Penal Code.
The defence of the accused 1, 2 and 4 was that they
had nothing to do with the inc.ident in question which
took place in the
morning of the 20th
April, 1951.
Though conceding that they had
been in
Bombay,
accused 1 and 4 contended that
accused 1 had left
Bombay on_ the night of the 18th April, and accused 4
had left Bombay either on the 16th or 17th April, for
Allahabad, that they were not in Bombay on the day
jn question but were in Allahabad where they had filed
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S.C.R.
SUPREME COURT REPORTS
911
two affidavits before one
Tondon,
the
first
class
Magistrate at Allahabad. Accused 2 also conceded that
he had stayed in Astoria Hotel with the accused 4 but
he had left that hotel on the 18th
April, and had gone
to stay in
Kashmir Hotel on that day and had stayed
there until the night of the 20th April, when he left
Bombay for Delhi.
His case was that he had come to
Bombay to make purchases for his
wedding and his
business and that he had
nothing
to do with the
incident in question.
Before the learned Sessions Judge the prosecution led
the evidence of various witnesses.
That evidence may
be grouped into three heads. One part of the evidence
related to the movements and the
activities
of the
:accused before the
20th
April, 1951, the other part of
the evidence related to the actual
participation of the
accused in the occurrence which took place at
Bastion
Road on the morning of the 20th April, between 10-30
and 10-45 A.M., and the last part of the evidence related
to the subsequent events including the arrest and the
identification of the
accused, the
recoveries of the tin
box containing the
revolvers and the
live cartridges,
the steel trunk containing six 'thappis' and five bundles
'Of 100 rnpee notes and disbursements of cash by the
accused towards the end of
April, or the beginning of
May.
The accused were represented by counsel
and
csearching and vigorous cross-examination
was addressed to all the
prosec.ution witnesses.
The
trial
took
<Considerable time.
The counsel
addressed
the special
jury at considerable length and the learned
Sessions
Judge summed up ~the whole case to the special jury
in a charge which took well-nigh three days. It was a
very exhaustive
and a fair
charge
and
in several
respects was favourable to the accused.
The learned
Judge summed up the evidence which had been led by
the prosecution, pointed out the defects as
also the
contradictions in the evidence of the several witnesses,
administered
the
necessary warning in regard to the
evicence of the identification parades,
considered
the
cases of each of the accused separately and marshalled
the evidence which had been led by the prosecution
against each of them and fairly put to the jury the
1954
Ramkishan
Mithanlal Sharma
v.
The State ef
Bombay.
BhagwatiJ.
1954
Ramln'shan
Mithanlal Sharma
v.
The Stale of
Bombqy.
BhagwatiJ.
912
SUPREME COURT REPORTS
[1955}
questions
which they had to determine
before they
could arrive at their verdict.
The
jury took time ti:>
consider their
verdict
and
returned as
stated above
unanimous verdicts of
guilty against all the accused in
respect of both the charges. ,·-
This being a trial by jury the appellants in order to
succeed would have to establish that there were serious
misdirections or non-directions in the
learned
Judge's
charge to the jury such as would vitiate the verdict.
The main contentions which were urged before us by
the learned counsel for the appellants were :-
( 1) That evidence
inadmissible
under section 162
of the
Criminal Procedure Code and under section 27'
of the Indian Evidence
Act had
been admitted and
that therefore there was an error of law which amounted
to a misdirection to the jury; and
(2) That there were misdirections
in the learned
Judge's charge to the. jury which had the effect of
misleading the jury or were in any event such
as to
render the charge unfair and prejudicial to the accused,
thus causing a failure of justice.
The admission of inadmissible evidence was attacked
on two counts:
( 1) Tl;iat the evidence in regard to the test identification parades held at the instance of the police and
under their active supervision was hit
by section 162
of the Criminal Procedure Code; and
(2) That the statement of the police officer that it
was "at the instance of" or "in consequence of certain
statement by" the
accused
that
certoin
discoveries
were
made
was
hit
by section 27 of the Indian
Evidence Act.
The investigation in this case
was started on the
20th April, 1951, and the Bombay City Police were then
governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act
IV of 1902). Section 63 of that Act provided :'--
" ( 1) No statement made by any person to a police
officer in the course of an investigation under this Act
shall, if taken down in writing, be signed by the person.
making it nor shall such writing be used as evidence."
)
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SUPREME COURT REPORTS
913
There was a proviso to that section which enabled
such statements to be used by the accused to impeach
the credit of such witness in the manner provided by
the Indian Evidence Act, 1872.
It may be noted that
under section 1(2) (a) of the Criminal Procedure Code
the Code did not apply to the police in the towns of
Calcutta and Bombay and therefore section 162 of the
Criminal Procedure Code was not
applicable to the
investigations made by the
Bombay City Police.
On
the 11th June, 1951, the State
Legislature passed the
Bombay
Police
Act (Bombay Act XXII of 1951) .
Section 167(3) of that Act repealed section 1(2) (a) of
the
Criminal Procedure Code so far as the poliCe in the
town of Bombay were concerned with the result that
when this
Act came into operation with effect from the
1st August, 1951, the
Bombay City
Police were also
governed by the provisions of Criminal Procedure Code
thus bringing into
operation
the provisions of section
162 thereof m the investigations conducted
by
the
Bombay City
Police.
Section 162(1) of the
Criminal
Procedure Code provides :-
"No statement
made by any
person to a police
officer m 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
mqmry
or trial m respect
of any offence under
investigation at the
time when
such statement was
made."
There is a proviso to this sub-section which enables
the accused to use such statements to contradict
such
witnesses in the manner provided by section 145 of the
Indian Evidence Act.
The investigations
conducted.
by the Bombay City Police were after the 1st August,
1951, assimilated to the investigations conducted by the
police under the
Criminal
Procedure
Code and oral
statements made by persons to police
officers m the
course of the investigation also came within the ban of
section 162 and could not be used for any purpose save
that specified m the proviso to section 162(1).
Ramkishan
Mithanlal Sharma:.
v.
The State ef
Bombay.
Bhagwati].
1954
Ramkishan
Mithanlal Sharma
v.
The State of
Bombay.
BhagwatiJ.
914
SUPREME COURT REPORTS
[1955]
The provisions of section 162
applied to investigations conducted by the
Bombay
City Police from and
after the !st August, 1951. .They
applied
to
investigations "under this
chapter", i.e., investigations conducted
under the
Criminal
Procedure
Code, and
therefore prima facie did not apply to
the investigations conducted by the Bombay City Police prior to the
1st August, 1951, in which case section 63 of the City
of Bombay Police
Act IV of 1902 was applicable.
It
was however contended on behalf of the appellants that
this section was a procedural one, that nobody had a
vested right in any course of
procedure,
that alterations in procedure . were to
be retrospective
unless
there was some good
reason against it or unless
that
construction
be textually
inadmissible
[ vide
Banwari
Gope v. Emperor( 1 )
and Delhi Cloth Mills v. lncometax
Commissioner,
Delhi(')], that
the
ban under
section 162 was operative
when evidence
in regard to
the test identification parades
was led before the learned
Sessions J u<lge
and that
therefore
all evidence in
regard to
these
test
identification
parades
whether
they had been held before or after the 1st August, 1951,
was inadmissible.
It was contended on the other hand
by the learned
Attorney-General for the
respondents
that section
167 (2) of the
Bombay Police
Act XXII
of 1951 saved by clause (b) thereof any right, privilege,
obligation or liability
already
acquired,
accrued or
incurred before such date and by clause ( d) thereof any
investigation, legal proceeding or remedy in respect of
such
right,
privilege,
obligation,
liability,
penalty,
forfeiture or punishment
and
that
therefore
the
investigation which had been made by the police under
the provisions of the City of Bombay Police Act IV of
1902 was saved and did not come within
the ban of
section 162 of the
Criminal
Procedure
Code.
Both
these contentions are untenable.
Section 167 (2) could
only apply to those
rights, privileges,
obligations or
liabilities already acquired, accrued or in incurred under
the City of Bombay Police Act IV of 1902 before the
date of its repeal.
An investigation conducted by the
police under the
provisions
of that Act would not
( 1) A.I.R. 1 943 Pat. 18.
(2) A.LR. 1927 P.C. 242.
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S.C.R.
SUPREME COURT REPORTS
915
create or impose any right,
privilege,
obligation
or
liability which could
be saved by the provisions of
section 167(2)
of the
Bombay
Police Act XXII of
1951.
The investigation which had been conducted
up to the 1st
August, 1951,
\Vould be
governed by
the provisions of
City of
Bombay
Police
Act
IV
of 1902 and unless there was something in the Bombay
Police
Act XXII of 1951
which referred
to
those
investigations, all the incidents of those
investigations
would be governed by the provisions
of the
repealed
Act and the question as to the admissibility in evidence
of the results of such investigations would also have to
be considered with reference to the
provisions of that
Act.
Section 162 of the Criminal Procedure Code in
terms applied to the investigations
conducted "under
this Chapter'', i.e., Chapter XIV which
relates
to
information
to
the police and
their powers to investigate, whereas section 63 of the City of Bombay Police
Act IV of 1902 specifically referred to
the
investigations copducted "under this
Ac_t",
i.e., the City of
Bombay
Police
Act IV of 1902.
Section
162 of the
Criminal Procedure Code therefore
applied
by reason
of the context and the terms of that verv section
to
investigations
which had
been
condu~ted
by
the
Bombay City Police after the 1st
August, 1951, and
would not have a retrospective
operation, because the
investigations conducted up to the 1st August, 1951,
by the
Bombay
City Police would certainly not be
investigations
conducted
"under
this
Chapter", ·i.e.,
Chapter XIV of the
Criminal
Procedure Code. There
is no substance therefore in either of these contentions
and the question as to admissibility in evidence
of the
statements made in the course of investigation
under
the City of Bombay Police Act IV of 1902 would have
to be considered in the light of the
provisions of sec··
tion 63 of that Act and not section 162 of the Criminal
Procedure Code.
·
It may be noted that the test identification
parades
in regard to the accused 1 and 2 were all held prior to
the 1st August, 1951, and no question could therefore
arise as to the provisions of section 162 of the
Criminal
Procedure
Code being applicable to
the evidence
m
1954
Ramkishan
Mithan/al Sharm~
v.
Th< SttA of
Bombay.
Bhagwati].
1954
Ramkishatt
Mithanlal Sharma
v.
The State of
.Bomba7.
BhagwatiJ.
916
SUPREME COURT REPORTS
[1955]
regard to those
parades. The test identification parades
in regard to accused 4 however
were held after the 1st
August, 1951, between the 16th
January and the 22nd
January, 1952, and it remains to be considered how far
the evidence in regard to those
parades was
admissible
in evidence having
regard to the provisions of section
162 of the Criminal Procedure Code.
,
There has been a
conflict of
opm1on
between
various High Courts in regard to the admissibility of
evidence in regard to these
test identification
parade,.
-{ '
The Calcutta High Court and the Allahabad High
Court have taken the view that identification of a person amounts to a statement
within
section 162 and
that therefore
the fact
of such identification
is not
admissible in evidence.
The
High
Court of Madras
and the
Judicial Commissioner's Court at Nagpur have
taken the contrary view.
In Khabiruddin v. Emperor(') the question arose as
to the admissibility of identification of stolen
property
during investigation in the presence of police officers
and it was held that section 162 embraced
all kinds of
statements made to a police officer in the course of an
investigation, that the evidence of the fact of identification is nothing but evidence of the statements
which
constitute the identification in a compendious and concise form and that therefore any identification of stolen
property in the
presence of a police
officer
during
investigation was a statement made to a police officer
during investigation
and was therefore
within the
scope of section 162.
Pointing out by finger
or
nod
of assent in answer to a question was held as much a
verbal statement as a statement by word of mouth and
no distinction was made between the mental act of the
identifier on the one hand and
the
communication of
that identification by him to another on the other.
Even the fact of identification by the identifier himself
apart from the communication thereof to another was
considered to be within the ban of section 162.
This decision was commented
upon in Surendra
Dinda v. Emperor( 2 ). There also the question arose as
,..._
to the admissibility of the evidence of the
sub-inspector
1 ·
(1) A.LR. 1943 Cal. 644.
(2) A.LR. r949 Cal. 5r4.
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S.C.R.
SUPREME COURT REPORTS
917
<0f police that the witnesses told him that
the articles
produced by him were identified by them as their property and the statements by the witnesses themselves
that they had identified the articles to the sub-inspector.
It was held that the
word "identified" had
a double
meaning.
It meant
the fact of actual
recognition as
well as the communication of that fact to a third per-
'SOn.
There was distinction between on the one hand
the actual fact of identification which is a mental act
-011 the part of the person identifying, seeing an object
or person and recognising
that the object or person
seen was identical with some particular object or person and on the other hand the communication to a
third person of this mental act.
The
communication
was of course
a statement,
but the identification
by
the identifier could not possibly be a statement.
The
Court however proceeded to observe that no distinction
·could be legitimately made between an actual
verbal
statement and some action on the part of the identifier
·disclosing the fact of his identification.
Both were hit
by section 162.
The communication of his own mental
:act of recognition and identification to the
police
was
what was hit but evidence in the
Court subsequently
by the actual identifier
himself
was not inadmissible
under section 162.
The
Court further observed that it
was not the actual act or process of seeing or recognising the accused in the presence of the officer which was
.affected by the provisions
of the section,
it was
the
communication of that fact to tlle police officer of which
proof could not be given.
It therefore held that the
.accused was entitled to object
to the evidence of the
sub-inspector, that the witnesses "identified" the artides to him or the evidence of the witnesses when they
said they "identified" the articles
in
the
presence of
the sub-inspector in so far as the latter expression was
taken to mean and include not only that they recognised
the articles as theirs but conveyed the
fact
of that
recognition to the sub-inspector.
The Allahabad High Court in Daryao Singh v. State( 1)
followed this decision of the Calcutta High Court in
terms without adding any comments of its own.
(1) A.LR. 1952 All. 59·
1954
Ramkishan
Mithanlal Sharma
v.
Th4 State of
Bombay.
Bhagwati].
1954
Ramkishan
Mithanlal Sharma
v.
The Stale of
Bombay.
BhagwatiJ.
918
SUPREME COURT REPORTS
(1955]
These decisions of the
Calcutta and the Allahabad
High Courts seek to make a distinction
between the
mental act of identification and the communication. of
that fact to another person.
The mental act of identification is not hit by section 162 but the communication
thereof to another
person either
by an oral statement
or even by signs or gestures including the pointing out
by finger or nod of assent m answer to a question put
to the identifier in that behalf would come within the
ban of section 162. Anything which amounts to a com- .
munication
of the
fact of such i<leQtification
by the·
identifier to another person is banned and no evidence
in respect thereof can be given m a Court of law under
section 162.
The High Court of Madras on the other hand in In re
Kshatri Ram Singh(') took the view that any evidence
about the statements made by witnesses at the identification parades held by the
police m the course
of
investigation was excluded by section 162, but the fact
that witnesses had identified persons at parades held by
the police might be proved.
In coming to this conclusion the High Court followed
an earlier decision of a
Division . Bench
reported m Guruswami
T hevan v ..
Emperor('). In that case an objection had been taken·
to the admission of a note of an identification parade
held by the police sub-inspector. It was contended that
the document embodied a record of statements made·
by identifying
witnesses
to
the
sub-inspector and as
such was inadmissible under
section 162.
Mr. Justice·
Wadsworth who delivered the judgment
of the Court
observed that the question was not without
difficulty,.
for in the nature of things
it was probable that when
a witness identifies a person in a parade he
does make·
some statement or other as to the purpose for which he·
identifies him and anything said by a witness at an identi--
fication parade held by the investigating officer might
well be considered to come within the purview of section
162. On the other hand the mere act of a witness in pick-.
ing out one individual from a
parade
was a revelant
circumstance concerning
which evidence
is admissible
and if the investigating officer made a note of that cirmmstance which he himself had observed,
there was no·
(1) A.LR. 1941 Mad. 675.
(2) 1936 M.W.N. 171-
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SUPREME COURT REPORTS
919
apparent reason why· that note should not be used · in
evidence.
If in the course of that note he appends ari
inadmissible record of the statement of the identifying
witnesses presumably
any such
portion
of the note
would have to be excluded from evidence.
He applied
that criterion to the document in question and the bare
note of the personnel of the parade, the names of the
witnesses, the way iμ which
the parade was arranged
and the .numbers of the persons in the parade identified
by each witness were held unobjectionable.
What was
excluded was the statement· in regard to the identification of witnesses of the
persons as having been concerned
in the murder cases
which were the subjectmatter of investigation.
A distinction
was thus made
between the
physical fact of identification
and the
statement made
qy
the identifier
as regards
the
persons identified
having
been
concerned
111
the
offence.
The Judicial
Commissioner's Court at
Nagpur 111
Ramadhin Brahmin v.