Tulsiram Kanu vs The State

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 29 January, 1951

Coram: Kania, C.J.

The appeal concerned a judgment and order issued by the High Court at Nagpur that had set aside the decision of the Additional Sessions Judge of Bhandara and had convicted the appellant of murder, imposing the capital punishment prescribed under Section 302 of the Penal Code. The factual background, as recorded, involved a person named Kawadu who had taken on rent two mango trees from their owners. Kawadu customarily supervised the trees during daylight hours and returned to his residence each evening. On the twenty-sixth day of May in the year 1949 he followed his usual routine, proceeding from his home to the mango trees, then returning home for his mid-day meal. After completing his meal he went back to continue his watch over the trees, but he failed to come back to his house that evening. His wife, becoming anxious, together with several other individuals, proceeded to the spot where Kawadu habitually sat. There they discovered Kawadu lying dead a short distance, measured in a few yards, from a small hut that he had constructed adjacent to the trees. The investigators noted that certain gold ornaments normally worn by Kawadu on his ears were missing from the scene. A formal report of the death was filed and a police investigation was launched. Despite numerous visits by police officers to the location and inquiries made among the villagers, no further information could be obtained regarding the circumstances of his death.

Approximately five months after Kawadu’s death, on the twenty-eighth day of October 1949, the appellant was taken into custody. A search of his dwelling yielded several items that were seized by the police: a knife with a wooden handle, a white and soiled piece of dhoti that appeared to bear blood stains, and a rusted axe lacking a handle, which had been found buried three feet beneath the ground in the kitchen area. On the same day the police also confiscated another white, dirty dhoti measuring four and a half cubits in length, which displayed suspected blood stains in several places; this dhoti was taken from the appellant’s brother. On the thirtieth of October, the authorities recovered from an individual named Mangroo certain ear ornaments that showed faint, old-looking blood marks. The following day, the thirty-first of October, further items were seized from the appellant’s house: an iron crowbar and a receipt dated the twenty-fifth day of September 1949 evidencing payment of tax for a she-buffalo.

Subsequently, on the ninth day of November 1949, the appellant was presented before Mr. Bhuskute, who was a Magistrate of the First Class at Sakoli, for the purpose of recording a confession. The magistrate expressly cautioned the appellant that he was under no compulsion to make any confession and that any statement he chose to give could be used against him in court. The appellant was allowed a period of undisturbed reflection until the next day and was instructed not to be swayed by any external considerations when deciding what to say. The magistrate ordered that the appellant be kept separate from other under-trials in the magisterial lock-up, but not in a manner that would amount to solitary confinement. The official record indicates that the appellant was indeed placed in the magisterial lock-up, and the circumstances of his detention were maintained as described.

The appellant was placed under police charge and, on the following day, was taken before the Magistrate while being escorted by Baharam, an orderly employed by the police. During this second appearance, the Magistrate reiterated to the appellant that he was under no obligation to speak unless he chose to do so of his own free will. The appellant reported that the police had pursued him continuously for the previous nine or ten days and that he had been arrested on Sunday, 30 October 1949. When asked whether the police had threatened him, he answered that they had prevented him from sleeping for three days, denied him food, applied leeches to his thighs, and physically assaulted him. In response to a further inquiry about whether anyone had promised a lighter punishment or release in exchange for a confession, he affirmed that the police had indeed indicated they would let him go if he confessed. The Magistrate then asked whether his desire to make a statement was self-initiated or prompted by another person, to which the appellant replied that he wished to make the statement voluntarily and of his own accord. On 10 November, the Magistrate recorded that he was satisfied the appellant was free from any threats or inducements and that the appellant insisted on making a statement; consequently, the confession was formally recorded on that date. The substance of the confession stated that on 26 May, the appellant had gone into the jungle at about ten or eleven in the morning to dig for roots, continuing this activity until two o’clock, after which he gathered the roots into a bundle. While returning home with the bundle balanced on his head, he discovered the dead body of Kawadu lying beneath a tree. Upon seeing the dead man, the appellant removed the gold earrings from the corpse, brought the ornaments to his home, later handed them to his brother-in-law, and subsequently delivered them to the police. When further questioned, the appellant declared that he had not killed the old man and that, because the police had beaten him, he had falsely claimed to have struck the victim with a crowbar out of fear; he asserted that he did not commit the murder.

After the committal proceedings, the appellant was tried before a Sessions Judge accompanied by four assessors. He faced charges of murder under Section 302 of the Indian Penal Code and of dishonestly misappropriating property belonging to Kawadu at the time of his death, pursuant to Section 404 of the same code. The four assessors unanimously returned a verdict finding the appellant not guilty of any offence. The Sessions Judge, after delivering a detailed and considered judgment, also concluded that the appellant was not guilty and accordingly acquitted him of all charges. The State Government subsequently appealed this judgment to the High Court. The High Court set aside the Sessions Judge’s finding, convicted the appellant of the murder offence, and imposed the death penalty. The matter then proceeded before this Court, which, after a full and detailed argument, determined that the High Court’s conclusion was erroneous and directed that the appellant be released, providing reasons for this conclusion.

In this case the High Court found the accused guilty of the offence of murder and imposed the capital sentence of death. The matter was then brought before the Supreme Court, where it was argued at length. After careful consideration, the Supreme Court determined that the High Court’s conclusion was erroneous. Consequently, the Court ordered that the accused be released from custody. The Court also indicated that it would set out the reasons for reaching this conclusion in the following discussion.

The prosecution’s case before the Sessions Judge was based on several factual allegations. It was asserted that three or four days prior to 26-5-1949 the accused had warned the deceased that he should not wear his gold ornaments because someone might murder him in order to obtain those ornaments. The prosecution claimed that the deceased communicated this warning to his wife, Anil, who was identified as another witness. On the day of the incident, the accused was observed at approximately ten o’clock in the morning digging roots with an axe and a crow-bar at a distance of about forty paces from the place where the deceased was seated. After that observation, no further information about the movements of the accused was presented. The post-mortem examination of the deceased’s body revealed an empty stomach, leading the medical examiner to estimate that death occurred between four and five p.m. The same examination reported a punctured wound on the head that could have been inflicted by a blow from an axe when the victim was standing, and a fracture of the ribs that might have resulted from a blow with a crow-bar when the victim was reclined. Testimony of Somku, who was recorded as PW-8, indicated that he had gone into the jungle to collect firewood and saw the accused digging roots not far from where the deceased was sitting at about ten a.m. The accused’s brother-in-law, Mangroo, produced a set of ear ornaments, which the widow and two other witnesses identified as items habitually worn by the deceased. In the absence of any eye-witnesses, the Sessions Judge organised the circumstantial evidence under four headings: (1) the alleged statement of the deceased concerning the accused’s warning about the ornaments; (2) the presence of the accused at ten a.m. digging roots with an axe and a crow-bar near the victim’s location; (3) the discovery of the axe and the ornaments; and (4) the recovery of cloth fragments stained with blood. The Judge also took note of a confession allegedly made by the accused. After examining each of these points in detail, the Sessions Judge concluded that the collective evidence did not meet the standard required for a conviction, and therefore held that the evidence was insufficient to prove the accused’s guilt beyond reasonable doubt.

Before addressing the High Court’s reasoning, it is necessary to observe the legal framework governing an appeal against an order of acquittal on a charge of murder under Section 417 of the Criminal Procedure Code. While the appellate court possesses full authority to review the entire case record, it must begin with the recognition that a seasoned judicial officer, assisted by four assessors, had previously determined that reasonable doubt existed regarding the accused’s guilt. Consequently, the appellate court is required to provide clear, cogent, and compelling reasons to overcome that established doubt before it can arrive at a conclusion that differs from the trial court’s finding. This principle underscores the high threshold that must be satisfied on appeal, ensuring that a conviction is not substituted for an acquittal absent a thorough and persuasive justification.

In this appeal the Court examined the question of the accused’s guilt in light of the material placed before the trial court and emphasized that an appellate authority may set aside an acquittal only when it is convinced that the evidence presented removes any reasonable doubt; consequently, the Court found that the Sessions Judge had correctly analysed the evidence and had grouped it under the headings that had been previously identified. Regarding the first heading, the Court observed that the narrative advanced by the prosecution is intrinsically difficult to accept, for if the appellant had intended to murder the deceased in order to obtain his gold ornaments, he would not have been the person warning the victim not to wear those ornaments lest someone murder him for that very purpose; such a warning would create pre-emptive evidence against the appellant and therefore the Court considered the story unrealistic and wholly untenable. Turning to the second heading, the Court noted that the deceased was seated in an open field near two mango trees, a location through which many people ordinarily passed during daylight; no witness testified that the appellant was present at that spot after ten o’clock in the morning, and the fact that the appellant was seen digging roots with an axe and a crow-bar at ten a.m. does not logically imply that he was near the deceased’s position between four and five p.m.; consequently, the evidence falling under the second heading was deemed ineffective for establishing the appellant’s guilt. Concerning the discovery of the axe in the appellant’s house, the Court identified two pivotal questions: whether the axe was indeed located in the appellant’s residence as the prosecution asserted, and whether that very axe was the instrument that caused the punctured wound described by the medical expert. The Court found the evidence on this point to be severely deficient; three witnesses testified to the discovery of the axe, yet the appellant’s house had been locked by the police on the afternoon of 27 October, and the identity of the person who retained the key thereafter remains mysterious. The testimony of the three witnesses collectively indicated that the house was not under the appellant’s control after the evening of 27-10-1949, creating a clear conflict regarding possession of the key during the intervening period. Moreover, an axe allegedly buried three feet deep in the kitchen on the following day could not be confidently attributed to the appellant under the circumstances. Finally, the suggestion that the blow inflicted on the deceased’s head was delivered by this axe was found to be far from satisfactory, as the evidence did not convincingly link the weapon to the injury.

In this case the axe that was discovered was examined by two experts: a chemical examiner and an Imperial Serologist. The chemical examiner prepared a report that was not convincing, because when a benzedine test was applied, the examiner found blood on the axe, yet a spectroscopic examination of the same axe revealed no blood. The Imperial Serologist submitted a separate report stating that no blood was present on the axe. Both reports were entered into the record by the Magistrate, but neither of the two experts was called to give oral evidence. Under ordinary circumstances the Criminal Procedure Code permits the taking of such expert reports without further testimony. However, when the reports contain conflicting conclusions, the burden falls on the prosecution to explain the discrepancy, and the mere presence of the reports does not, by itself, establish any evidential weight against the accused. The first report, which had indicated the presence of blood, was effectively neutralised by the second report that denied any blood, making the overall effect of the two documents essentially nil. In view of this unsatisfactory evidentiary state, the Sessions Judge correctly concluded that both the discovery of the axe and the question of whether blood had been found on it were unreliable, and therefore could not be used as proof of the appellant’s guilt.

The discovery of a blood-stained piece of cloth taken from the appellant’s house was also examined. The chemical examiner reported finding blood on the cloth, whereas the Imperial Serologist could not confirm that the material was human blood. Because the nature of the blood could not be established, the cloth could not be used to infer the appellant’s involvement in murder. In addition, one or more dhotis bearing blood-stains were found five months after the alleged murder; these stains were likewise not proved to be human blood. The Sessions Judge correctly observed that blood-stains on garments belonging to persons who cut roots or work in the jungle cannot be treated as evidence of murder. Moreover, the dhoti seized from the appellant’s brother, Motiram, was never found in the appellant’s possession. Consequently, the evidence classified under the fourth head offered no assistance to the prosecution and could not be relied upon to support a charge of murder against the appellant.

Regarding the confession recorded by the Magistrate, the Court found it untenable. The appellant had told the magistrate that he had been subjected to ill-treatment shortly before being presented before the magistrate on 9 November, and that he had been offered a promise of leniency if he confessed. When the magistrate granted the appellant a 24-hour period to consider his statements, he failed to ensure that the appellant was not kept in police custody during that interval. Instead, the appellant remained in the magisterial lock-up, which was under police control. This circumstance leaves only conjecture about what occurred during those 24 hours. The fact that the appellant was later escorted to the magistrate on 10 November does not demonstrate that he was free from police influence. Accordingly, the confession could not be regarded as free and voluntary. The Sessions Judge was right to disregard the confession, and the High Court erred in assigning any significance to it.

The Court observed that the simple fact that an orderly had escorted the accused to the magistrate on 10 November did not establish that the appellant had remained out of the police’s influence. In view of the circumstances surrounding that escort, the Court concluded that the confession recorded before the magistrate could not be characterised as a free and voluntary admission. Accordingly, the Court held that the Sessions Judge had been correct in disregarding the confession, and that the High Court had committed a serious error by assigning any significance to that confession.

The Court then turned to the issue of the gold ornaments that formed the basis of the High Court’s judgment. The Sessions Judge had previously noted that, had the ornaments been proved to belong to the deceased, a deduction could be drawn that the accused was the person who had committed the murder and the subsequent robbery. The Court found this line of reasoning unsound under the facts of the case. The alleged murder took place on 26 May 1949, while the ornaments were allegedly traced to the accused only at the end of October 1949, a gap of five months. The Court emphasized that the presumption under Section 114, illustration (a), of the Evidence Act must be read in conjunction with the passage of time. When property of the deceased is discovered in a person’s possession shortly after the murder, a presumption of guilt may be permissible; however, a lapse of several months defeats that presumption, given the surrounding circumstances. The Court applied the same criticism to the High Court’s conclusion that the ornaments were those of the deceased. It further noted that the Sessions Judge had examined the evidence concerning the ornaments in detail and had explained why the ornaments could not be proved to be those of the deceased Kawadu. The Court found the Sessions Judge’s reasons for rejecting the witnesses’ statements regarding the ornaments to be sound, and it could not accept the High Court’s contrary findings. Moreover, the Court observed that the High Court’s judgment relied principally on the identification of the ornaments and failed to consider the detailed reasons provided by the Sessions Judge for rejecting other evidential material that the prosecution had advanced against the appellant.

The Court found that the conviction of the appellant for murder was erroneous, and accordingly it set aside the judgment of the High Court. It observed that the High Court’s reasoning—that the accused had failed to produce any evidence that the ornaments in question were his own—was fundamentally flawed. The Court explained that the appellant’s inability or neglect to establish ownership of the ornaments does not, in any manner, assist the prosecution in demonstrating the appellant’s culpability for the murder. In its view, the remarks made by the Sessions Judge in paragraph thirty-one of his judgment merit close attention by the State authorities. Since the ornaments have not been shown to be the property of the deceased, the Court held that a conviction under section four hundred four of the Indian Penal Code cannot be sustained. Finally, the Court directed that the ornaments presently in the possession of the lower court be handed back to the appellant. The Court further emphasized that the observations of the Sessions Judge, set out in the concluding paragraph of his report, should be examined closely by officials of the State to ensure that any future investigative or prosecutorial actions take into account the shortcomings identified in the earlier proceedings. The Court noted that because the ornaments have not been positively identified as belonging to the victim, they cannot form a basis for a charge of criminal mischief or theft under the provisions of the Code, and therefore their retention by the court would be unwarranted.