# The do pay the peritioners' costs of their petition. AHER RAJA K.HIMA v. THE STATE OF SAURASHTRA - **Citation:** [1955] 2 S.C.R. 1285 - **Court:** Supreme Court of India - **Decided:** 1952-08-26 - **Case number:** Criminal Appeal No. 64 of 1955 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-do-pay-the-peritioners-costs-of-their-petition-aher-raja-k-hima-v-the-state-1482 - **Pages:** 30 ## Headnote 2S.C.R. SUPREME COURT REPO~TS 1285 report of the Income-tax Investigation Commission dated the 26th August 1952 and the assessment orders of the Income-Tax Officer for the y.ears . 1940-41, 1941"42 and 1943-44 to 1948-49, and that a writ of prohibition do i$sue against the resP,ondents restraining them from implementing the findings. of the Investigation Commission with r~g;μ-~ to the year 1942-43. The respondents do pay the peritioners' costs of their petition. AHER RAJA K.HIMA v. THE STATE OF SAURASHTRA- [VIVIAN BosE, VENKATARAMA AYYAR and CHA:NDRASEKHARA Arr AR JJ l Appeal against Acqu#tal....-Scqpe of-PoU}ers of Court-Guiding principles-Code .of Criminal Procedure (Act V of 1898), s. 417 Pel"' BosE and OitANDRAsEKHARA A1YAll JJ, (VENKATARAMA AYYAR J. dissenting). It is well settled that the High' Court should not set aside an order of acquittal under s, 417 of the Code of Criminal Procedure simply because it differs from the trial Court as to the appreciation of the evidence ; there must be substantial and compelling reasons for doing so. · Whete the trial Court takes a reasonable view of the facts of the case, interference is not justifiable unless there are really· strong reasons for holding otherwise. Amar Singh v; State of Punjab ([1953] S.C.R. 418) and Surajpal Singh v. State ( f19521 S.C.R. 193), referred t,o. The accused in a criminal case must be given the benefit of every reasonable doubt and, therefore when he offers a reasonable explanation of his conduct, althougl;i he cannot prove it, that explanation should ordinarily be accepted unless the circumstances indicate that it is false. Conseq11ently,. in a case where an accused person, charged under ss. 302 and 447 of the lndian Penal Code, repudiated his confession at the earliest opportunity as having been made under Police threats administered to l>im at night while in, jail custody and there was evidence to show that the Police had access to hiru there, and there was nothing to displace his statement that he was threatened by them, the finding of the Sessions Judge that the t:onfession was not voluntary in character was fair and reasonaok and in the absence of auy compellihg reason the High Court shotild not have set aside the order of acquittal. 1955 M- Ct. Mulhiah and 2 others ·v. The' Commission., of ltu:of/14-tax, Madras and another Jaganlladhadas J. 1955 Decmiher 22. 1955 Ahtr Raja Khima v. The State of Saurashlra 1286 SUPREME COURT REPORTS [1955] As the evidence otherwise was insufficient to warrant a conviction the accused was acquitted. Per VENKATARAMA AYYAR J. This is not a case in which the Supreme Court should interfere under Art. 136 of the Constitution. The Consti.tution by specifically providing for an appeal on facts under Art. 134( 1) intended to exclude it under Art, 136 and like the Privy Council this Court will not function as a further Court of appeal on facts in criminal Cases. The fact that the appeal in the High Court was one against an order of acquittal makes no difference as the powers of an appellate Court are the same in all appeals, whether -against acquittal or against conviction. Pritam Singh v. The State ([1950] S.C.R. 453), Shea Swarup v. King-Emperor ([19341 L.R. 61 I.A. 398) and Nur Mohammad v. Emperor (A.LR. 1945 P.C. 151), relied on. The expression "compelling reasons" used in Surajpal Singh's case should be read only in the context of that case and should not be treated as a rigid formula so as to restrict the powers of the Court, or the right of appeal conferred on the State by s. 417 of the Code or to place a judgment of acquittal in a l'osition of vantage and give the accused a protection which the law does not afford to them. Such a formula can be of use only as guiding principle for the appellate Courts in determining questions of fact. Surajpal Singh v. The State ([1952] S.C.R. 193), considered. Consequently, the findings arrived at by the High Court were not open to review by this Court under Art. 136 of the Constit ## Text _Characters 0–39,920 of 66,073. This is a partial read: ask again with offset=39920 for what follows._ 2S.C.R. SUPREME COURT REPO~TS 1285 report of the Income-tax Investigation Commission dated the 26th August 1952 and the assessment orders of the Income-Tax Officer for the y.ears . 1940-41, 1941"42 and 1943-44 to 1948-49, and that a writ of prohibition do i$sue against the resP,ondents restraining them from implementing the findings. of the Investigation Commission with r~g;μ-~ to the year 1942-43. The respondents do pay the peritioners' costs of their petition. AHER RAJA K.HIMA v. THE STATE OF SAURASHTRA- [VIVIAN BosE, VENKATARAMA AYYAR and CHA:NDRASEKHARA Arr AR JJ l Appeal against Acqu#tal....-Scqpe of-PoU}ers of Court-Guiding principles-Code .of Criminal Procedure (Act V of 1898), s. 417 Pel"' BosE and OitANDRAsEKHARA A1YAll JJ, (VENKATARAMA AYYAR J. dissenting). It is well settled that the High' Court should not set aside an order of acquittal under s, 417 of the Code of Criminal Procedure simply because it differs from the trial Court as to the appreciation of the evidence ; there must be substantial and compelling reasons for doing so. · Whete the trial Court takes a reasonable view of the facts of the case, interference is not justifiable unless there are really· strong reasons for holding otherwise. Amar Singh v; State of Punjab ([1953] S.C.R. 418) and Surajpal Singh v. State ( f19521 S.C.R. 193), referred t,o. The accused in a criminal case must be given the benefit of every reasonable doubt and, therefore when he offers a reasonable explanation of his conduct, althougl;i he cannot prove it, that explanation should ordinarily be accepted unless the circumstances indicate that it is false. Conseq11ently,. in a case where an accused person, charged under ss. 302 and 447 of the lndian Penal Code, repudiated his confession at the earliest opportunity as having been made under Police threats administered to l>im at night while in, jail custody and there was evidence to show that the Police had access to hiru there, and there was nothing to displace his statement that he was threatened by them, the finding of the Sessions Judge that the t:onfession was not voluntary in character was fair and reasonaok and in the absence of auy compellihg reason the High Court shotild not have set aside the order of acquittal. 1955 M- Ct. Mulhiah and 2 others ·v. The' Commission., of ltu:of/14-tax, Madras and another Jaganlladhadas J. 1955 Decmiher 22. 1955 Ahtr Raja Khima v. The State of Saurashlra 1286 SUPREME COURT REPORTS [1955] As the evidence otherwise was insufficient to warrant a conviction the accused was acquitted. Per VENKATARAMA AYYAR J. This is not a case in which the Supreme Court should interfere under Art. 136 of the Constitution. The Consti.tution by specifically providing for an appeal on facts under Art. 134( 1) intended to exclude it under Art, 136 and like the Privy Council this Court will not function as a further Court of appeal on facts in criminal Cases. The fact that the appeal in the High Court was one against an order of acquittal makes no difference as the powers of an appellate Court are the same in all appeals, whether -against acquittal or against conviction. Pritam Singh v. The State ([1950] S.C.R. 453), Shea Swarup v. King-Emperor ([19341 L.R. 61 I.A. 398) and Nur Mohammad v. Emperor (A.LR. 1945 P.C. 151), relied on. The expression "compelling reasons" used in Surajpal Singh's case should be read only in the context of that case and should not be treated as a rigid formula so as to restrict the powers of the Court, or the right of appeal conferred on the State by s. 417 of the Code or to place a judgment of acquittal in a l'osition of vantage and give the accused a protection which the law does not afford to them. Such a formula can be of use only as guiding principle for the appellate Courts in determining questions of fact. Surajpal Singh v. The State ([1952] S.C.R. 193), considered. Consequently, the findings arrived at by the High Court were not open to review by this Court under Art. 136 of the Constitution and as there was evidence apart from the retracted confession to support the view it had taken on merits, the appeal must be diSmissed. CRIMINAL .APPELLATE JURISDICTION : Criminal Appeal No. 64 of 1955. On appeal by special leave from the judgment and order dated the 27th February 1954 of the Saurashtra High Court at Rajkot in Criminal Appeal No. 108 of 1953 arising out of the judgment and order dated the 5th March 1953 of the Court of Sessions Judge, Halar Division in Sessions Case No. 26 of 1952. V. N. Sethi, for the appellant. R. Ganapathy Iyer and R. H. Dhebar, for the respondent. 1955. December 22. BoSE J.-The only question in this whether the High Court had in mind the appeal is principles - • ' 2S.C.R. SUPREME COURT REPORTS 1287 we have enunciated about interference under section 417 of the Criminal Procedure Code when it allowed the appeal field by the State against the acquittal of the appellant. It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong: Amar Singh v. State of Punjab( 1); and if the trial Court takes a reasonable view of the facts of the case, interference under section 417 is not justifiable unless there are really strong reasons for reversing that view: Surajpal Singh v. State( 2 ). The appellant was prosecuted under sections 302 and 447 of the Indian Penal Code for the murder of Aher Jetha Sida. It is not necessary at the moment to set out the facts. It is enough to say that the High Court based its conviction on a retracted confession plus certain circumstances which the learned Judges regarded as corroborative. , The learned Sessions Judge excluded the confession on the ground that it was neither voluntary nor true. The learned Judge's reasoning about its falsity is weak. We do not think there is material on which a positive finding about its falsity can be reached but when he savs that he is not satisfied that it was made voluntarily .we find it impossible to hold that that is a view which a judicial mind acting fairly could not reasonably rea~h. Th·e facts about that are as follows. The offence was committed during the night of the 18th/19th May 1952. The police were informed on the 19th morning at 9-30. The police station was only 4 miles distant and they started investigation immediately. The appellant was arrested on the 20th. He says in his examination under section 342, Criminal Procedure Code, that three other persons were also arrested but were later released. They are Bhura, Dewayat and Kana. The investigating officer was not examined, so he could not be asked . about this and the point could not be developed further. But the appellant did cross-examine some of the prosecution witnesses (I) [1953] S. C.R. 4-18, 4-23. (2) [1952] S. C.R. 193, 201. 1955 Aker Raja Khimo. v. The State of Saurashtra Bose]. 1955 Aher Raja Khima v. The State of i.Saurashtra Bose]. 1288 SUPREME COURT REPORTS [1955] \ about this and elicited contradictory replies. Kana, P. W. 4, said- "! was not arrested. Dewayat, Barat Lakhmansingh was arrested first ...... All the three of us were released the same evening. We were not put under arrest at all". Dewayat, P. W. 5, denied that either he or any of the others were arrested and Maya, P. W. 15, said the same thing but Meraman, P.W. 11, insisted that Dewayat was arrested. In the absence of the SubInspector it is difficult to say definitely that the appellant is wrong. It is evident that the others were at least suspected, especially as one of the points made against the appellant is that he was seen sharpening an axe on the evening of the murder and Meraman, P.W. 11, says that not only was the appellant sharpening an axe but so was Dewayat. If this was a matter of suspicion against the appellant it must equally have been so against Dewayat and accord- 'ingly there is nothing improbable in the appellant's statement about these other arrests; and as the SubInspector was not there to clear up the matter it is only fair to accept what the appellant says. The appellant was sent to a Magistrate at 8 p.m. on the 21st for the recording of a confession but the Magistrate did not record it till the 3rd of June. He was examined as P.W. 21 and explained that he gave the appellant ten days for reflection. The length of time is unusual but no objection about· its fairness to the accused could reasonably have been raised had it not been for the fact that the judicial lock-up is in charge of a police guard which is under the direct control, orders and supervision of the very SubInspector who had conducted the investigation and had earlier suspected and, according to the accused, actually arrested three other persons; and two of them are now called as prosecution witnesses to depose against the appellant about a matter on which the prosecution lay great importance, namely the sharpening of an exe. The danger that they might exaggerate their stories or give false evidence in their anxiety to avert further suspicion from themselves is 2S.C.R. SUPREME COURT REPORTS 1289 one that cannot be overlooked. But apart from that. This is the description of the judicial lock-up which the Magistrate who recorded the confession (P. W. 21) gives us: "A police guard is on 24 hours duty at the Bhanwad Judicial lock-up. The prisoner is so placed within the compound wall that he can see the police all the 24 hours through the bars and can talk. These police officers are under the police Sub-Inspector. A peon is working as warder. He stays there on duty by day. At night he is not there. Clerk Jailor does. not remain present there. The police lock-up is within· the jail itself. Inside the jail gate is the police lock-up. The police can go into the police lock-up when they choose". Now the appellant repudiated his confession at the earliest opportunity. He told the Committing Court on 12-12-1952 in a written statement that- "After my arrest by the police I was sent to jail. At night time the police, having arrived at the jail, threatened me to make confession before Court as they directed. The police frightened me with beating if I did not confess. As a result of which through fright, I have made a false confession as directed by the police and which I now deny". And in his examination under section 342, Criminal Procedure Cod.e, he said- "I have made the confession because the police were threatening to beat me in the jail. He repeated these statements in the Sessions Court. He said he was beaten at the time of his arrest and then after he had been sent to the jail he said- "I was daily threatened. They said 'confess the offiehce of murder. We shall get you on remand. You will live as an importent man'. On the morning of the 3rd date, they took me to a big police officer after administering extraordinary threats. Only now I come to know that he is the Magistrate". Now it may be possible to take two views of this statement but there are two important factnrs in every criminal trial that weigh heavily in favour of an accused person: one is that the accused is entitled 1955 Aher Raja Khima v. Tm State of Saurashtra Bose.]. 1955 Aker Raja Khima v, The State of Saurashtra BOse J. 1290 ·sUPREME COURT REPORTS [1955] to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. What the appellant said in this case is not impossible ; such things do happen and it is understandable that the police, frustrated in their endeavour to find the culprit among three other persons, should make an all out endeavour to make sure of the fourth. We do not say that that happened here. But that it might have happened is obvious, and when the police absent themselves from the witness box and forestall attempts at cross-examination, we find it impossible to hold that a judge acting judicially, and bearing in mind the important principles that we have outlined above, can be said to have reached an unreasonable or an unfair conclusion when he deduces from these circumstances that there is a reasonable probability that the appellant's story is true and that therefore the confession was not voluntary. The only reason that the learn<:d High Court Judges give for displacing this conclusion is that "in Saurashtra .... though judicial and police lock-ups are placed under a common guard the judicial lock-ups are in charge of Magistrates and are looked after by their clerks and peons, who are assigned the duties of jailors and warders respectively" and they conclude- "It is therfore difficult to say that the police could have effectively threatened him". But what the learned Judges overlook is the fact that this control is only effective during the day and that at night neither the peon nor the clerk is there; and even during the day the "clerk-cum-jailor does not remain present there". The appellant said in his written statement that "at night time the police, having arrived at the jail, threatened me, etc". There is nothing on th_e record to displace this statement. Had the Sub-Inspector or some policeman been examined as a witness and had the appellant omitted to f .. 2S.C.R. SUPREME COURT REPORTS 1291 cross-examme him about this, that might have raised an inference that what the accused said was only an afterthought. But here we find that this defence about the involuntary nature of the confession due to threats by t:1e police was; raised at the outset, even in the Committing Magistrate's Court, and was persisted in throughout and the appellant did what he could to build up this part of his case by cross examining the only official witness who did appear, namely the Magistrate who recorded the confession; and he succeeded in establishing that there was ample opportunity for coercion and threat. The fact that this defence was raised in the Committal Court should have put the prosecution on its guard and the absence of refutation in the Sessions Court is a matter that can legitimately be used in the appellant's favour. In the circumstances, we do not think the High Court has squarely met the learned Sessions Judge's reasoning and shown that there are compelling reasons for holding that he was wrong; on the contrary, the learned Sessions Judge's hesitation is grounded on well established judicial principles. Now the law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. It is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a conf~ssion or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time he makes the confession and if it "would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him": section 24 of the Indian Evidence Act. That is why the recording of a confession is hedged around with so many safeguards and is the 27-85 S. C. India/59 1955 Aher Raja Khims v. The Staie of Saurashtra 1955 Ahtr Raja Khima v. Th~ State of Saurashtra Rose J. 1292 SUPREME COURT REPORTS [1955] reason why magistrates ordinarily allow a period for reflection and why an accused person is remanded to jail custody and is put of the reach of the investigating police before he is asked to make his confession. But the force of these precautions is destroyed when, instead of isolating the accused from the investigating police, he is for all practical purposes sent back to them for a period of ten days. It can be accepted that this was done in good faith and we also think that the police acted properly in sending the appellant up for the recording of his confession on the 21st; they could not have anticipated this long remand to so-called "jail custody". But that is hardly the point. The fact remains that the remand was made and that that opened up the very kind of opportunities which the rules and prudence say should be guarded against; and, as the police are as human as others, a reasonable apprehension can be entertained that they would be less than human if they did not avail themselves of such a chance. If the confession is excluded, then there is not, in our opinion, sufficient evidence against the appellant on which a conviction can be based. It will now be necessary to set out the facts. The murdered man is one J etha. He married Sunder, P.W. 3, about three years before he was killed, but we gather that she had not gone to live with her husband; any way, she was living in the appellant's village Shiva with her people at the time of the occurrence and this afforded the pair opportunities for a long continued course of illicit amours, chances which it seems they were not slow to seize. The husband lived in a village Kalawad which is three miles distant. At the time of the murder arrangements were being made for Sunder to go to her husband and preparations for the ceremonial appropriate to such occasions were in the course of progress. The prosecution case is that this was resented by the appellant who wanted the girl for himself; so he went to the husband's village Kalawa