Ramkishan Mithanlal Sharma vs The State Of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 4, 23 and 28 of 1954

Decision Date: 22/10/1954

Coram: Natwarlal H. Bhagwati, B. Jagannadhadas, T.L. Venkatarama Ayyar

In this matter the petition was brought by Ramkishan Mithanlal Sharma against the State of Bombay. The case was heard by a bench of the Supreme Court of India consisting of Justice Natwarlal H. Bhagwati, Justice B. Jagannadhadas, Justice Aiyyar, and Justice T. L. Venkatarama. The judgment was delivered on 22 October 1954 and is reported in 1955 AIR 104 and 1955 SCR (1) 903. The principal issues arose under the Code of Criminal Procedure (Act V of 1898), particularly section 162, and related to whether that provision applied to investigations carried out under the City of Bombay Police Act (Bombay Act IV of 1902) before the latter Act was repealed by Bombay Act XXII of 1951. The court also examined the admissibility of evidence from test identification parades, the relevance of statements made by an accused under section 27 of the Indian Evidence Act (I of 1872), and the effect of misdirection on a jury under sections 297, 298 and 537 of the Code of Criminal Procedure. Additional questions involved the impact of improper admission or rejection of evidence pursuant to section 167 of the Indian Evidence Act and the duties of an appellate court in hearing an appeal.

The factual backdrop disclosed that investigation in the present case commenced on 20 April 1951 under the City of Bombay Police Act (Bombay Act IV of 1902). At that time the provisions of the Code of Criminal Procedure were inapplicable to the Bombay City Police by virtue of section 1(2)(a) of the Code. Subsequently, the Bombay Police Act (Bombay Act XXII of 1951) was enacted, thereby repealing both the Bombay Act IV of 1902 and the specific saving provision of section 1(2)(a) that had excluded the Code from applying to the city police. The new Act became effective on 1 August 1951, after which the provisions of the Code of Criminal Procedure regrew applicable to investigations undertaken by the Bombay City Police.

Section 63 of the City of Bombay Police Act (Bombay Act IV of 1902) stipulated that any statement made by a person to a police officer during an investigation, if reduced to writing, could not be used as evidence. In contrast, section 162 of the Code of Criminal Procedure extended this prohibition to oral statements made to a police officer during an investigation that were not reduced to writing. The Court held that, by its very context and terms, section 162 applied only to investigations conducted under Chapter XIV of the Code and could not be given retrospective effect to cover investigations carried out before 1 August 1951, because those investigations were not conducted under Chapter XIV. Consequently, the test identification parades conducted with respect to accused I and accused II before that date fell outside the ambit of section 162, whereas the parade involving accused IV, which took place after 1 August 1951, was subject to the section’s prohibition.

In this case, the Court observed that the statutory ban of section 162 of the Code of Criminal Procedure applied to the evidence concerning the test identification parades involving accused number four, because those parades were conducted after 1 August 1951, whereas the evidence concerning the earlier parades involving accused one and two, which had taken place before that date, fell outside the operation of the section. The Court cited the decisions in Banwari Gope v. Emperor (A.I.R. 1943 Patna 18) and Delhi Cloth Mills v. Income-tax Commissioner, Delhi (A.I.R. 1927 P.C. 242) in support of its analysis. The Court explained that the object of an identification parade is to permit a witness to recognise the property or person that participated in the alleged offence. The very act of identification therefore necessarily includes a statement by the witness that the particular item or individual identified was involved in the offence. Such a statement may be expressed in words or may be implied through conduct, signs or gestures. The Court held that any such communication, whether expressed verbally or implicitly, represents a conveyance of the fact of identification from the witness to another person. When the parade is conducted in the presence of police officers, the communication is essentially a statement made by the witness to a police officer during the investigation, and consequently it falls within the prohibition established by section 162 of the Code. The Court further clarified that the factual occurrence of identification does not exist independently of the accompanying statement that is made in the process of identification. Consequently, when a police officer attempts to prove that an identification took place, the relevant evidence is inadmissible under section 162, except where the identifier himself testifies about his mental act of identification, which may be admitted as corroborative evidence at trial. However, the Court distinguished situations in which the police set up the parade, introduce the persons to be mixed with the accused, and then withdraw, leaving the actual parade to be conducted entirely under the supervision of five civilian witnesses (the Panch witnesses). In such circumstances, the statements made by the identifiers are directed to the Panch witnesses rather than to a police officer, and therefore they are not covered by the ban of section 162. The Court endorsed this view by referring to the authorities of Khabiruddin v. Emperor (A.I.R. 1943 Cal. 644), Surendra Dinda v. Emperor (A.I.R. 1949 Cal. 514) and Daryoo Singh v. State (A.I.R. 1952 All. 59). It noted that the decisions in In re Kshatri Ram Singh (A.I.R. 1941 Mad. 675), Guruswami Thevan v. Emperor (1936 M W.N. 177) and Bamdhin Brahmin v. Emperor (A.I.R. 1929 Nag. 36) were not to be followed, and also mentioned Rao Shiv Bahadur Singh v. State of Vindhya Pradesh ([1954] S.C.R. 1098) and Abdul Kader v. Emperor (A.I.R. 1946 Cal. 452) for reference. Per Justice Jagannadhadas, the Court concluded that drawing a distinction between evidence supplied by a police officer and that supplied by the Panch witnesses or other identifying witnesses, on the basis that the latter constitutes merely corroborative evidence of a prior identification made in a police-conducted parade, is unfounded and cannot be permitted. Accordingly, the testimony of the Panch witnesses and the identifying witnesses concerning the fact of a prior identification was held to be inadmissible, even when offered as corroborative evidence. The Court also referred to section 27 of the Indian Evidence Act in this context.

In this case the Court observed that Section 27 of the Indian Evidence Act rests on the proposition that when a fact is actually discovered because of information supplied by a person, the law presumes that the information is trustworthy and therefore may be safely admitted in evidence. The Court stressed, however, that the scope of admissible information must be measured against the exact nature of the fact that was discovered and the manner in which that fact is required to relate to the supplied information. The Court referred to the authority in Kottaya v. Emperor (A.I.R. 1947 P.O. 67) for this principle. The Court then considered a situation where a police officer testified that a tin box had been excavated from a mud house “in consequence of a certain statement made by the accused” and “at the instance of the accused.” Because the police officer did not attempt to prove the specific content of the accused’s statement or the information given, Section 27 was not engaged, and on the face of it there was nothing to prevent the evidence of the discovery from being admitted against the accused. The Court cited Durlav Namasudra v. Emperor ([1931] I.L.R. 59 Cal. 1040) in support of this view. Per JAGANNADHADAS J., there is considerable force in the objection that when a police officer attributes a discovery to “the instance of the accused” or to “information given by the accused,” the prosecution must not rely on such evidence unless the admissible portion of that information is placed on record. The Court explained that the information supplied by the accused in those circumstances may, on scrutiny, reveal only a remote connection with the recovered objects and not a direct link, and that merely proving that the accused gave some information may cause serious prejudice to the accused. The Court further observed that “summoning up” to a jury does not amount to a simple summary of the evidence; instead, the judge must marshal the evidence so that the lights and the shades, the probabilities and improbabilities, are clearly presented, thereby assisting the jury in determining which version of the facts is true. The charge to the jury should not be a long, rambling repetition of the evidence without any attempt to organize the facts under appropriate headings or to help the jury sift and weigh the evidence so that it can distinguish the truly important parts from the secondary ones. The Court relied on Ilu v. Emperor (A.I.R. 1934 Cal. 847) and Nabi Khan v. King Emperor (A.I.R. 1936 Cal. 186) for this principle. Finally, the Court held that with respect to accused 4 there had been an error of law in admitting evidence of the test identification parades relating to him. Although the admission of such inadmissible evidence amounted to a misdirection, the Court noted that a misdirection alone does not constitute a ground for reversal under Section 537 of the Code unless it actually caused a failure of justice. Moreover, the reception of evidence that is inadmissible under Section 162 of the Code is not, by itself, necessarily fatal to the conviction. The appellate court must therefore examine whether the inclusion of the inadmissible evidence had so strongly influenced the jury’s mind as to affect the verdict.

The Court observed that if inadmissible evidence had been admitted, the appellate court must first exclude that evidence from the record and then examine whether the remaining balance of evidence was sufficient to uphold the conviction. It further stated that the Court of Appeal was required to consider the entire case and to determine for itself whether the jury’s verdict was justified or whether a failure of justice had occurred. The Court of Appeal was recognised as having the authority to replace the jury’s verdict with its own if, after reviewing the record, it concluded that the jury’s decision was erroneous or that a miscarriage of justice had taken place, meaning that either a guilty person had been acquitted or an innocent person had been convicted. The Court cited several authorities, including Abdul Rahim v. King Emperor ((1946) L.R. 73 I.A. 77), Mushtaq Hussain v. State of Bombay ([1953] S.C.R. 809), Ilu v. Emperor (A.I.R. 1934 Cal. 847), Nabi Khan v. Emperor (A.I.R. 1936 Cal. 186), Khabiruddin v. Emperor (A.I.R. 1943 Cal. 644), Surendra Dinda v. Emperor (A.I.R. 1949 Cal. 514) and Mathews v. Emperor (A.I.R. 1940 Lahore 87). The judgment was rendered under the criminal appellate jurisdiction for Criminal Appeals Nos. 4, 23 and 28 of 1954. Special leave to appeal had been granted by the Supreme Court on 2 April 1953 from the High Court of Judicature at Bombay’s order dated 12 January 1953, which itself arose from the Sessions Judge, Greater Bombay’s judgment and order dated 6 October 1952 in Case No. 20 of 1952. Counsel for the appellant in Criminal Appeal No. 4 of 1954 included A. K. Basu together with J. B. Dadachanji and Naunit Lal. For the appellant in Criminal Appeal No. 23 of 1954, counsel comprised T. Godiwala and B. P. Maheswhari. The appellant in Criminal Appeal No. 28 was represented by Jai Gopal Sethi with B. P. Maheshwari and T. Godiwala assisting. The respondent was represented by M. C. Setalvad, Attorney-General for India, assisted by Porus A. Mehta and P. G. Gokhale. The judgment was dated 22 October 1954. The judgment of Bhagwati and Venkatarama Ayyar JJ. was delivered by Bhagwati J., while Jagannadhadas J. delivered a separate judgment. Bhagwati J. noted that Anokhelal Ranjit Singh, the first accused and appellant in Criminal Appeal No. 28 of 1954; Harnarain Nanakchand, the second accused and appellant in Criminal Appeal No. 23 of 1954; and Ramkishan Mithanlal Sharma, the fourth accused and appellant in Criminal Appeal No. 4 of 1954, together with Rubidas Radhelal (the third accused, now deceased) and Bankelal Devisingh (still absconding), had been charged under section 397 read with section 395 of the Indian Penal Code for committing dacoity and using deadly weapons, and also under section 396 of the Indian Penal Code for murdering Lawrence Quadros in the same transaction.

In this case the Court noted that the accused had been tried before the Sessions Judge for Greater Bombay, the trial being conducted with the assistance of a special jury. The jury returned unanimous verdicts of guilt against each of the accused. Following those verdicts the learned Sessions Judge convicted all of them and imposed the sentence of transportation for life on each offender. The accused subsequently filed an appeal to the High Court of Judicature at Bombay, but that appeal was dismissed summarily. Special leave to appeal was later granted, allowing the three appeals to be heard before this Court, and the matters are now before us for final disposal.

The prosecution placed before the Court a detailed description of the alleged money-transfer operation of Lloyds Bank Limited. The Bank maintained a branch on Hornby Road that possessed three entrances: a principal entrance on Hornby Road itself and two additional entrances on Outram Road and on Bastion Road. It was the Bank’s ordinary practice to remit cash to the Reserve Bank of India whenever the Head Cashier considered that a surplus existed. On the day preceding a scheduled transfer, the Head Cashier would hand the currency notes to the Assistant Cashiers. Each Assistant Cashier, as proof of verification, would sign the top and bottom notes of a bundle containing one hundred rupee-100 notes and would also affix the Bank’s rubber stamp. Those bundles were then tied together into what were known as “thappis,” each thappi comprising ten such bundles.

On the scheduled day of the transfer, an escort party was to accompany the cash to the Reserve Bank. The escort consisted of two Assistant Cashiers, one European Officer and a peon. The Assistant Cashiers placed the cash into a leather bag, and that bag was secured to the peon by an iron chain. The Bank had recently received a large deposit from the Bank of Iran a few days before the incident, and consequently it was decided to forward the sum of twelve lakh rupees to the Reserve Bank of India on 20 April 1951.

On the morning of 20 April, the escort party consisted of individuals named Brightling, Sarkari and Doctor, together with the peon Rama Madura. Taxi number BMT 1829 was summoned to convey the party to the Reserve Bank. The escort emerged from the rear door of the Bank and proceeded to the taxi. A watchman named Bala Gopal Kadam was on duty on Bastion Road at that time. When the party reached the taxi, its bonnet was turned toward the Empire Cinema and the driver, Lawrence Quardros, was seated in the driver’s position. Brightling entered the taxi first and took a seat in the rear, followed by Rama Madura. Sarkari walked around the front of the vehicle and took the seat beside the driver. After entering, Rama Madura placed the cash-bag on the floor of the taxi and was about to take his seat.

In the incident, Doctor stood with his left hand on the rear door of the taxi on the bank side, waiting for Rama Madura to take his seat. At that moment, accused persons identified as 1, 2, 4, Rubidas and Bankelal attacked both the taxi and the escort party. One of the attackers first forced open the driver’s side door, leaned into the vehicle and discharged a revolver twice. One of those shots struck Lawrence Quadros near the collar-bone, causing an instant fatal injury; his body fell out of the taxi head-first. After firing, the shooter moved to the front of the taxi and occupied the seat beside the driver’s position. Another man, standing behind the first shooter when the driver was hit, pulled Lawrence Quadros from the taxi and took the steering-wheel seat; this man was Rubidas, who had previously been a motor driver for Pan American Airways in Delhi. Accused 1, also carrying a revolver, stood on the roadside and fired two rounds at the taxi from that side, while accused 2 and accused 4 were positioned either at the rear or on the bank side, each also armed with revolvers. Initially, Sarkari mistook the gunfire for tyre-bursts and rose from his seat to inspect the tyres, but the continuation of the shots made him realize that an attempt to steal the cash was in progress. He became frightened and fled toward Outram Road. Brightling exited the taxi, moved briefly toward its rear, and upon seeing the vehicle surrounded, zigzagged toward the junction of Outram and Bastion Roads where he unsuccessfully tried to stop a passing car. Accused 1, who was firing at the taxi, approached the vehicle, opened the roadside rear door with his shoulder and entered the taxi. Accused 2 approached the rear door on the bank side and fired at Doctor, injuring the dorsum of his left palm. At that time, watchman Kadam raised his baton, perceiving Doctor to be in danger; accused 2 then shouted “Khabardar, chhod do chale jao, bhago” or words of similar meaning and fired at Kadam, striking him in the right eye and causing total loss of that eye. Both accused 2 and accused 4 were armed with revolvers. A passer-by named Sarvarkhan, who was standing on the footpath near the taxi, saw Lawrence Quadros’ body fall out; when he attempted to approach, accused 4 shouted “khabardar” and threatened him with his revolver, preventing any assistance. During the assault, one of the men also shot at Rama Madura, rendering him unconscious; subsequently, accused 2 and another individual dragged him out of the taxi.

After the assailants forced the victim out of the taxi, the vehicle was started again and began to move away. Brightling, who remained on Bastion Road, signaled to the Cash Department to indicate the unfolding assault and then seized a motorcycle parked near the corner of the Parsi Lying-in-Hospital. He deliberately placed the motorcycle in the path of the fleeing taxi, hoping to halt its progress, but Rubidas, who was driving, managed to accelerate and escape. The taxi, however, could only move at a reduced speed initially, allowing Major Casey, who was standing on the footpath at the corner, to observe the entire episode as the vehicle passed him. According to the prosecution, accused persons numbered one, two, and four together with Rubidas and Bankelal surrounded the taxi and assaulted its occupants. They then removed the bag tied to Rama Madura’s belt, which contained cash amounting to twelve lakh rupees, and escaped in the same taxi. Brightling and several other bank employees later located a car parked nearby, entered it, and searched the surrounding streets for the fleeing taxi, but they were unable to locate it. Brightling reported the incident to the Esplanade Police Station. Earlier, the bank’s telephone operator, Mrs. Paterson, together with clerk Miss Vida Palmer, had telephoned the police after observing the event from the mezzanine window. Police officers arrived at the bank shortly thereafter, and the situation was taken over by law enforcement authorities. The body of Lawrence Quadros, who had been killed during the assault, was taken to the morgue for post-mortem examination. Doctor, Kadam and Rama Madura, all of whom sustained injuries, were transported to St. George’s Hospital for medical treatment. The taxi driven by Rubidas, with the accused and Bankelal inside, was discovered abandoned at approximately one-thirty in the afternoon near the Kashmir Hotel. Police efforts to locate accused four and Bankelal proved unsuccessful, leading authorities to charge-sheet accused one, two, and Rubidas—who had originally been designated as accused three—and commit them to trial before the Sessions Court. After those proceedings concluded, accused four was apprehended on 25 December at Bareli Station, subsequently charge-sheathed and also committed to the Sessions Court.

Rubidas, who had originally been designated as accused three, died on 3 August 1952 before the conclusion of the trial. Following his death, the prosecution proceeded against accused one, two and four on the basis of sections three hundred ninety-five, three hundred ninety-seven and three hundred ninety-six of the Indian Penal Code. The defence maintained that none of the three men participated in the events that occurred on the morning of 20 April 1951. While acknowledging that they had at some time been present in Bombay, the accused contended that they were not in the city when the incident took place. Specifically, accused one claimed that he departed Bombay on the night of 18 April and therefore could not have been involved. Accused four asserted that he left Bombay either on 16 April or on 17 April, traveling to Allahabad, where he remained during the date of the attack. According to their statements, the travel to Allahabad placed them far from Bastion Road at the time the robbery and assault were carried out. The trial court examined these alibi assertions but ultimately proceeded to evaluate the prosecution evidence concerning the alleged participation of the accused. The court’s final judgment would later address the credibility of these alibi defenses and determine their impact on the case.

The accused filed two affidavits before a first-class magistrate named Tondon at Allahabad. Accused 2 admitted that he had initially stayed in the Astoria Hotel together with accused 4, but he left that hotel on 18 April. On the same day he moved to the Kashmir Hotel, where he remained until the night of 20 April, after which he departed Bombay for Delhi. He asserted that his visit to Bombay was solely to purchase articles for his wedding and his business, and that he had no involvement in the incident under trial.

Before the learned Sessions Judge, the prosecution presented evidence from various witnesses. The evidence was organized into three distinct categories. The first category dealt with the accused’s movements and activities before 20 April 1951. The second category concerned the alleged participation of the accused in the event that occurred on Bastion Road on the morning of 20 April, specifically between 10:30 A.M. and 10:45 A.M. The third category concerned the events that followed, including the arrests, the identification of the accused, the recovery of a tin box that contained revolvers and live cartridges, a steel trunk that held six ‘thappis’ and five bundles of one-hundred-rupee notes, and the disbursement of cash by the accused toward the end of April or the beginning of May.

The accused were represented by counsel, and all prosecution witnesses underwent rigorous and thorough cross-examination. The trial consumed a considerable amount of time. Counsel addressed the special jury at length, and the learned Sessions Judge delivered a comprehensive charge to the jury that extended for almost three days. The charge was exhaustive, fair, and, in several respects, favourable to the accused. In his summing-up, the judge recited the prosecution’s evidence, highlighted defects and contradictions in the testimonies, gave the necessary warning concerning the identification parades, examined each accused’s case separately, marshaled the prosecution’s evidence against each individual, and posed to the jury the precise questions that needed to be answered before a verdict could be rendered.

The jury deliberated and returned unanimous verdicts of guilt against all the accused on both charges. Because the matter was tried before a jury, the appellants would have to demonstrate that the judge’s charge contained serious misdirections or omissions that would invalidate the verdict. The principal arguments presented by counsel for the appellants were that evidence inadmissible under section 162 of the Criminal Procedure Code and section 27 of the Indian Evidence Act had been admitted, and that such admission constituted a misdirection of law.

The appellants argued that the trial judge had committed a legal error that amounted to a misdirection of the jury, and they further contended that the judge’s instructions contained misdirections that misled the jury or, in any event, rendered the charge unfair and prejudicial to the accused, thereby causing a failure of justice. They attacked the admission of evidence they deemed inadmissible on two separate grounds. First, they asserted that evidence concerning the test identification parades, which had been conducted at the police’s initiative and under their direct supervision, fell within the prohibition of section 162 of the Criminal Procedure Code. Second, they claimed that a statement made by a police officer, which indicated that certain discoveries were the result of a statement by the accused, was barred by section 27 of the Indian Evidence Act. The investigation in this case began on the twentieth of April, nineteen fifty-one, at which time the Bombay City Police were governed by the City of Bombay Police Act, commonly referred to as the Bombay Act of 1902. Section 63 of that Act provided that no statement made by any person to a police officer in the course of an investigation, if recorded in writing, could be signed by the person making it, nor could such a written statement be used as evidence. A proviso to that provision, however, allowed such statements to be employed by the accused to impeach the credit of the witness in accordance with the provisions of the Indian Evidence Act of 1872. It is also relevant to note that under section 1(2)(a) of the Criminal Procedure Code, the Code did not apply to police forces in the towns of Calcutta and Bombay; consequently, section 162 of the Criminal Procedure Code was not applicable to investigations carried out by the Bombay City Police at that time. On the eleventh of June, nineteen fifty-one, the State Legislature enacted the Bombay Police Act, identified as Bombay Act XXII of 1951. Section 167(3) of that Act repealed the exemption contained in section 1(2)(a) of the Criminal Procedure Code as it related to the police of Bombay, thereby bringing the Bombay City Police within the scope of the Criminal Procedure Code when the Act came into force on the first of August, nineteen fifty-one. From that date forward, the provisions of section 162 of the Criminal Procedure Code applied to investigations conducted by the Bombay City Police. Section 162(1) of the Criminal Procedure Code states that no statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to 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, except as provided in the following provisions, at any inquiry or trial in respect of any offence under investigation at the time the statement was made. There is

In this case, the Court explained that the proviso to the sub-section permitted an accused person to use a statement made to a police officer to contradict a witness according to the method laid down in section 145 of the Indian Evidence Act. The Court noted that investigations carried out by the Bombay City Police after 1 August 1951 were treated as investigations under the Criminal Procedure Code. Consequently, any oral statement made by a person to a police officer during such an investigation fell within the prohibition of section 162 and could be used only for the purpose expressly allowed by the proviso to section 162(1). The Court further observed that the provisions of section 162 applied to investigations conducted by the Bombay City Police from and after 1 August 1951. Because section 162 referred to investigations “under this chapter,” meaning investigations under the Criminal Procedure Code, it did not, on its face, govern investigations carried out by the Bombay City Police before that date. For the period preceding 1 August 1951, the applicable law was section 63 of the City of Bombay Police Act IV of 1902.

The appellants argued that section 63 was merely procedural, that no one possessed a vested right in any procedural course, and that any change in procedure should operate retrospectively unless a good reason existed or unless such a construction was textually inadmissible, citing Banwar’s Gope v. Emperor (1) and Delhi Cloth Mills v. Income-Tax Commissioner, Delhi (1). They contended that the prohibition in section 162 was effective when evidence concerning the test-identification parades was presented before the learned Sessions Judge, and therefore all evidence relating to those parades, whether the parades occurred before or after 1 August 1951, should be excluded. On the other side, the learned Attorney-General for the respondents submitted that section 167(2) of the Bombay Police Act XXII of 1951, by clause (b), preserved any right, privilege, obligation or liability already acquired, accrued or incurred before the repeal date, and by clause (d) protected any investigation, legal proceeding or remedy concerning such rights or liabilities. Accordingly, the respondent argued that the investigation undertaken by the police under the City of Bombay Police Act IV of 1902 was saved and therefore did not fall within the ban of section 162 of the Criminal Procedure Code. The Court held that both contentions were untenable. It clarified that section 167(2) could apply only to rights, privileges, obligations or liabilities that had been acquired, accrued or incurred under the 1902 Act before its repeal. An investigation conducted under the provisions of that Act did not create or impose any such right, privilege, obligation or liability that could be saved by section 167(2) of the 1951 Act, as pointed out in the authorities (1) A.I.R. 1943 Pat. 18 and (2) A.I.R. 1927 P.C. 242. Consequently, the investigation that had been conducted up to 1 August 1951 remained governed by the provisions of the City of Bombay Police Act IV of 1902.

In this case the Court observed that investigations carried out before 1 August 1951 were governed by the provisions of the City of Bombay Police Act IV of 1902, and that, unless the later Bombay Police Act XXII of 1951 expressly referred to those earlier investigations, the incidents arising from them remained subject to the repealed Act. Consequently, the admissibility of the results of such investigations had to be examined in accordance with the provisions of the earlier Act, rather than under section 162 of the Criminal Procedure Code. The Court explained that section 162 of the Code applies only to investigations conducted “under this Chapter,” that is, Chapter XIV dealing with information to the police and their powers of investigation, whereas section 63 of the City of Bombay Police Act IV of 1902 specifically governs investigations carried out “under this Act.” Therefore, section 162 could not operate retrospectively to affect investigations completed before the statutory change, because those investigations were not undertaken under Chapter XIV of the Code. The Court held that the question of whether statements made during investigations under the 1902 Act were admissible had to be decided by reference to section 63 of that Act and not by reference to section 162 of the Code. It was further noted that the test identification parades for accused I and accused II had been held before 1 August 1951, so section 162 of the Code could not apply to the evidence arising from those parades. However, the test identification parades for accused IV were conducted after that date, between 16 January and 22 January 1952, and the Court therefore had to consider the admissibility of the evidence from those parades under section 162 of the Code. The Court identified a conflict of opinion among the High Courts on this point: the Calcutta and Allahabad High Courts have held that an identification of a person constitutes a statement within section 162 and is therefore inadmissible, whereas the Madras High Court and the Judicial Commissioner’s Court at Nagpur have taken the opposite view. The Court also referred to the earlier decision in Khabiruddin v. Emperor, which addressed the admissibility of identification of stolen property made during police investigations.

In the case, the Court held that section 162 covered every type of statement made to a police officer during an investigation. The Court explained that evidence showing that a person had identified an object was merely a condensed form of the statements that made up the identification, and therefore any identification of stolen property made in the presence of a police officer constituted a statement to that officer and fell within the ambit of section 162. The Court further stated that pointing with a finger or nodding in response to a question was equivalent to a verbal statement, and it drew no distinction between the mental act of the person who identified and the act of communicating that identification to another person. Even the mere fact that the identifier himself recognized the item, apart from any communication to another, was deemed to be barred by section 162. This judgment was later discussed in Surendra Dinda v. Emperor (2). In that case, the Court also examined whether evidence of a sub-inspector was admissible when witnesses told the officer that the articles he produced were identified by them as their property, and when the witnesses themselves said that they had identified the articles to the sub-inspector. The Court held that the word “identified” possessed a double meaning: it referred both to the actual mental act of recognition and to the communication of that recognition to a third person. A distinction was therefore drawn between the mental act of recognizing an object or person and the subsequent communication of that mental act to another. While the communication was undoubtedly a statement, the mental act of identification alone could not be considered a statement. Nevertheless, the Court observed that no legitimate distinction could be made between an oral statement and any action by the identifier that disclosed the fact of identification; both forms of disclosure were caught by the prohibition of section 162. Accordingly, the communication of the identifier’s mental act to the police was excluded, but later testimony by the identifier himself was not barred by section 162. The Court further clarified that the provision did not affect the mere act of seeing or recognizing the accused in the officer’s presence; rather, it prohibited proof of the communication of that recognition to the police. Consequently, the Court concluded that the accused could object to the sub-inspector’s evidence and to the witnesses’ statements that they had “identified” the articles to him.

The Court explained that when witnesses said they “identified” the articles in the presence of the sub-inspector, the expression was to be understood as covering not only the fact that the witnesses recognized the articles as theirs but also that they communicated that recognition to the sub-inspector. The Allahabad High Court, in Daryao Singh v. State (AIR 1952 All 59), adopted the reasoning of the Calcutta High Court without adding any further comment. Both the Calcutta and the Allahabad decisions sought to draw a line between the mental act of identification and the communication of that fact to another person. According to those decisions, the mental act of identification itself is not caught by section 162, whereas any communication of that identification—whether by spoken words, signs, gestures, pointing with a finger, or a nod in answer to a question—falls within the prohibition of section 162. Consequently, any evidence that amounts to a communication of the fact of identification by the identifier to another person is barred, and no such evidence may be adduced in a Court of law under the said section.

In contrast, the Madras High Court, in In re Kshatri Ram Singh (AIR 1941 Mad 675), held that statements made by witnesses at police identification parades are excluded by section 162, but the fact that witnesses actually identified persons at those parades may be proved. The Madras Court arrived at this view by following an earlier Division Bench decision in Guruswami Thevan v. Emperor (1936 MWN I 77). In that earlier case, an objection was raised to the admission of a note taken by a police sub-inspector of an identification parade on the ground that the note recorded statements of the identifying witnesses and therefore was inadmissible under section 162. Justice Wadsworth, delivering the judgment, observed that the issue was fraught with difficulty because, in practice, a witness who points out a person in a parade is likely to make some statement about the purpose of the identification, and such statements could be captured by section 162. However, he contrasted this with the simple act of a witness picking out an individual from the parade, describing it as a relevant circumstance that is admissible. If the investigating officer himself noted that observable act, there was no apparent reason why the note of that act could not be used as evidence, provided it did not contain the inadmissible statements of the witnesses.

The Court observed that if a note contains a prohibited record of the statements made by the identifying witnesses, then that portion of the note must be excluded from evidence. Applying this principle to the document under consideration, the Court held that the simple entries indicating the personnel present at the parade, the names of the witnesses, the manner in which the parade was organized, and the number of persons identified by each witness were admissible and unobjectionable. However, the Court expressly excluded any statement that linked the witnesses’ identification of individuals to the allegation that those individuals were involved in the murder cases that formed the subject of the investigation. In doing so, the Court drew a clear distinction between the physical fact of identification – the act of pointing out a person or object – and the accompanying statement by the identifier that the identified person or object was concerned with the offence. The Court further noted that the Judicial Commissioner’s Court at Nagpur in Ramadhin Brahmin v. Emperor had expressed a similar view, holding that testimony of police officers concerning identification parades was not inadmissible under section 162 when such testimony merely described facts or circumstances witnessed by the officers themselves, rather than relaying a statement made to the police. The Court pointed out that the same distinction was evident in that decision, separating the physical fact of identification proved by police testimony from the statements made by the identifier to the police.

The Court explained that to resolve the apparent conflict of opinion, it was necessary to consider the purpose of test identification parades. These parades are conducted by the police during the investigation to enable witnesses to identify the property that constitutes the subject-matter of the offence or to identify the persons who are alleged to be involved in the offence. The parades are therefore not held merely to identify any property or person irrespective of any connection with the crime. Whether the police interrogate the identifying witnesses or the Panch witnesses procured by the police, the witnesses are informed of the purpose of the parade and are asked to identify the property or persons that are linked to the offence. Keeping this background in mind, the Court observed that the process of identification necessarily involves a statement by the witness that the identified property or person is the subject-matter of the offence or that the identified person was concerned in the offence. Such a statement may be expressed directly or implied through conduct. The identifier may point to or touch the property or person, may nod, give assent in response to a question, or may make signs or gestures that effectively communicate that the identified item or individual pertains to the offence. All such expressions, whether verbal or non-verbal, constitute a communication of the fact of identification and therefore fall within the prohibition of section 162.

In this case the Court observed that any expression, whether spoken, written, gestural or by any other sign, which conveys that a particular property or person has been identified as the subject-matter of the offence, constitutes a communication of the fact of identification by the identifier to another individual. The Court held that the distinction drawn by the Calcutta and Allahabad High Courts between the mental act of identification and the subsequent communication of that act to another person is a logical one, because such communications are equivalent to statements made by the identifiers to a police officer during the investigation and therefore fall within the prohibition created by section 162. Consequently, the physical fact of identification does not exist independently of the statement that is embedded in the very process of identification. When a police officer attempts to prove the fact that an identification was made, the evidence he seeks to adduce is subject to section 162 and is inadmissible, except for the limited circumstance in which the identifier himself testifies about his own mental act of identification; that testimony may be admitted as corroboration of the accused’s identification at trial. The Court therefore endorsed the view articulated by the Calcutta and Allahabad High Courts and rejected the contrary position advanced by the Madras High Court and the Judicial Commissioner’s Court at Nagpur. The learned Attorney-General, however, endeavoured to distinguish between statements addressed to police officers and statements addressed to the Panch witnesses who were called by the police when conducting the test identification parades. He submitted that a statement made to police officers is covered by the ban of section 162, but that if, notwithstanding the organisation of the test identification parades, the police call Panch witnesses, explain the purpose of the parade to the identifying witnesses, and the identification is made before those Panch witnesses even though police officers remain present, the Panch witnesses may lawfully depose to the fact of identification and to the statements made by the identifiers to them without attracting section 162. He further argued that in such a situation the identification should be treated as a statement to the Panch witnesses, even though police officers were present, and that it would be a factual question in each case to determine whether the statement was made to the Panch witnesses or to the police, a question to be resolved by examining the circumstances of each case. The Attorney-General relied on Abdul Kader v. Emperor and Rao Shiv Bahadur Singh v. State of Vindhya Pradesh to support his position. He contended that, in the present matter, the test identification parades were conducted in the presence of Panch witnesses who had been summoned by the police, that those Panch witnesses explained the purpose of the parade to each identifying witness, and that the identification proceeded thereafter.

In the present case the identification of the accused was carried out while the Panch witnesses were present, and the Panch witnesses recorded the result of the identification. After the identification the police prepared the Panchnamas, which were then signed by the Panch witnesses. On that basis it was pleaded that the identification amounted to statements made by the identifying witnesses to the Panch witnesses and not to the police, and consequently the evidence of the Panch witnesses was admissible. This position was supported by references to A.I.R. 1946 Cal. 452 and [1954] S.C.R. 1098. However, such an argument would have succeeded only if, after arranging the test identification parade, the police had removed themselves entirely and left the Panch witnesses in exclusive charge of the parade. Normally the police would organise the parade, summon the persons to be mixed with the accused and also call the Panch witnesses who were to conduct the parade. Once the Panch witnesses were called, the entire identification process should then be under the exclusive direction and supervision of those Panch witnesses. If the Panch witnesses explained the purpose of the parade to the identifying witnesses and conducted the identification under their sole control, the statements involved would be regarded as statements to the Panch witnesses and would fall outside the operation of section 162.

In the present proceedings, however, the police officers remained present throughout the whole identification process, and the Panch witnesses appeared to have been brought in only to demonstrate that the legal requirements for holding identification parades were satisfied. The police officers were present when each identifying witness was brought into the room and identified the accused. They also prepared the Panchnama, read it out, explained its contents to the Panch witnesses, and attested the signatures of the Panch witnesses that were placed at the foot of the document. Consequently the entire identification parade was directed and supervised by the police, while the Panch witnesses performed a minor role, merely guaranteeing that the statutory requirements for the parade were met. The court expressed great reluctance to hold, under these circumstances, that any statements made during the identification were statements to the Panch witnesses rather than to the police. To accept such a view would enable the police to evade the provisions of section 162 by formally inviting the Panch witnesses and then claiming that any statements made by the identifiers were addressed to those witnesses instead of to the police.

In this matter the Court concluded that the test identification parades conducted with regard to accused number four, which took place between the sixteenth and the twenty-second of January 1952, fell within the operation of section 162 and therefore the identification evidence obtained at those parades could not be admitted against accused four. The Court observed that the question of admitting evidence that is excluded by section 27 of the Indian Evidence Act is confined to a very limited field. The argument presented on this point relied upon the testimony of the investigating officer, Hujur Ahmed Khan, who stated that on the sixteenth of May 1951 accused one made a particular statement which caused the officer to escort accused one and accused two to Itawa; after leaving accused two at that place, the officer proceeded with accused one to Bhagwasi. The officer further testified that at Bhagwasi accused one identified a person named Baliram, who, at the direction of accused one, excavated from a mud house a tin box that contained three revolvers and two tins of live cartridges. The prosecution challenged the use of the expressions “in consequence of a certain statement made by accused one” and “at the instance of accused one,” contending that these phrases fell within the prohibition of section 27. Section 27 of the Indian Evidence Act reads: “Provided that, when any fact is deposed to as discovered in consequence of information-received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” The Court explained that section 27 serves as an exception to the rules set out in sections 25 and 26, which provide that no confession made to a police officer shall be proved against an accused and that no confession made while the accused is in police custody may be proved unless it is made in the immediate presence of a magistrate. Section 27, however, permits the part of the information that directly relates to a fact discovered as a result of that information to be proved, irrespective of whether that part constitutes a confession. The provision is based on the view that when a fact is actually discovered because of information supplied by an accused, a certain assurance of the truthfulness of that information is given, allowing it to be admitted as evidence. Nonetheless, the Court stressed that the scope of admissible information depends on the precise nature of the fact that was discovered and to which the information is connected.

In this case the Court observed that a plain reading of the statutory provision shows that only the information, or that part of the information, which relates distinctly to the fact that was discovered may be proved. The information in question would be a statement made by the accused to a police officer, and the police officer is clearly barred from proving the information unless it falls within the strict limits set by the provision. Accordingly, if a police officer wishes to introduce the information or any portion of it, the Court must examine whether that portion relates distinctly to the discovered fact and may admit it only if that condition is satisfied. Conversely, if the police officer does not seek to prove the information or any part of it, the provision does not apply at all.

In the present matter the investigating officer, Hujur Ahmed Khan, testified that he had received certain information from the first accused, which prompted him to take specific steps. He did not attempt to prove that information, or any fragment of it, as part of the evidence he presented before the Court. Even when he narrated that Baliram had removed a tin box from the mud floor of a house, he did not endeavour to prove the content of the information on which that allegation was based. Because the officer did not seek to prove the information, the operation of the statutory provision was not triggered, and prima facie there was no obstacle to admitting the evidence against the first accused.

The Court noted that reliance had been placed upon an unreported judgment of Chagla C.J. and Gajendragadkar J., delivered on 11 January 1950 in Criminal Appeals No. 454 of 1949 and No. 464 of 1949, together with revisional application No. 952 of 1949, in the case of Rex v. Gokulchand Dwarkadas Morarka No. 1. In that case an exception was taken to a police officer’s statement that, in consequence of certain statements made by the first and second accused, he discovered the missing pages of the Bombay Samachar dated 23 April 1948, and it was contended that the statement was inadmissible. The real issue before the Court was whether a joint statement attributed to both accused could be admitted without specifying which particular statement led to the discovery of the relevant fact. The Court correctly held that a joint statement by more than one accused was not contemplated by the provision, and therefore the police officer’s evidence on that basis should have been excluded.

However, an argument was raised by the advocate for the State that the police officer had not attempted to prove the exact words spoken by the accused; he merely said that a discovery resulted from statements made by them. The Court examined this argument in the following discussion.

In this case the judges examined the argument advanced by counsel and explained why they found it unsatisfactory. They observed that the approach taken by the prosecution was indirect and improper because it attempted to demonstrate the statements allegedly made by the accused without actually presenting those statements as evidence. The judges noted that when a police officer testifies that “in consequence of a statement made by an accused a discovery was made,” the testimony implicates the accused in the discovery itself. Whether the officer recounts the precise words spoken by the accused or merely alludes to a statement, the link between the accused’s alleged statement and the subsequent discovery of the relevant fact is clearly suggested. Accordingly, the judges held that evidence of any statement by an accused which leads to the discovery of a fact may be admitted only if the statement meets the requirements laid down in section 27 of the Indian Evidence Act. This condition applies even where the prosecution does not attempt to prove the exact wording of the statement. The judges emphasized that a statement must be capable of being proved under section 27, regardless of whether it is actually proved in the proceedings.

The judges then turned to the observations of Rankin C.J. in Durlav Namasudra v. Emperor (1). Rankin C.J. had stated that there is nothing in sections 24 or 25 of the Evidence Act that prevents a witness from saying, for example, “In consequence of something said by the accused I went to a certain place and there found the body of the deceased.” He added that in cases governed by section 27 the witness may go further and disclose the relevant portion of a confession. The present judges expressed that they could not agree with Rankin C.J.’s view of the law. They pointed out that Rankin C.J. was engaged in an academic discussion of the various sections of the Indian Evidence Act and was not called upon to resolve the specific issue before them. With respect, the judges said that the Bombay High Court had erred in thinking that Rankin C.J. had committed a mistake; nevertheless, they also concluded that the matter was somewhat academic in the present circumstances. They observed that even if the contention of the Advocate-General—that the investigating officer’s statement was admissible—were accepted, such admission would scarcely assist the prosecution’s case.

The judges further explained that the matter under consideration involved a joint statement allegedly made by accused 1 and accused 2. Their comments expressing disagreement with Rankin C.J.’s legal view were clearly obiter. They noted that the police officer’s testimony would inevitably indicate that the accused were aware of the fact that had been discovered as a result of information supplied by another person, as reported in (1931) I.L.R. 59 Cal. 1040, 1045. However, the judges pointed out that such evidence does not necessarily establish a direct connection between the accused and the offence. Instead, it would constitute a link in the chain of evidence which, when combined with other evidence, might help to demonstrate the accused’s involvement. The judges concluded that this circumstance was harmless and that evidence of it could be admitted without invoking the prohibitions of section 27.

If it became necessary to resolve the conflict between the opinions, the Court indicated a preference for adopting the view expressed by Rankin C.J. rather than the view articulated by the learned Judges of the Bombay High Court. Consequently, the question concerning the inadmissibility of the evidence alleged to fall within section twenty-seven of the Indian Evidence Act was to be answered against accused number one. The Court therefore required that the evidence in dispute be excluded as it was attracted by the operation of that statutory provision, and the adjudication concerning accused one proceeded on that basis.

The Court then examined the alleged misdirections and non-directions that were claimed to have vitiated the jury’s verdict. The principal misdirection identified by the counsel for all the accused related to the determination of whether four or five persons had participated in the commission of the offence. Particular objection was taken to paragraph fifty-nine of the learned Judge’s charge to the jury, which read in part: “Brightling, Baburao Raje, Miss Vida Palmer, Mrs. Paterson and witness Sarkari, if you were to accept his evidence here on this part of the case, were all definite that there were five or more men surrounding the taxi and concerned in the attack while Holmes said that there were at least four, if not more, which means that he was not certain about the number. If you were to find from the statement of Casey that he saw some men trying to pile into the taxi from the rear door of the taxi on the Bank side, that would suggest that there were at least five men concerned even according to Casey. Consider this question carefully and then if you find after scrutiny of this evidence that there were at least five men conjointly concerned then only section three hundred ninety-five would apply. That briefly was the evidence so far as the question as to the number of men is concerned.” The Court noted that the evidence of the several witnesses was scrutinised and that, contrary to the claim that the witnesses were definite that five or more men were involved, the record showed that only two persons occupied the front seats and two persons occupied the rear seats of the taxi, bringing the total to four persons and not five as the prosecution asserted. An objection was also raised to the way the phrase “piling into the taxi from the rear door of the taxi on the Bank side” had been interpreted by the learned Judge, which the Court found to diminish the significance of Major Casey’s testimony that, when the taxi passed him, he observed two persons in the front seats and two persons in the rear seats. Furthermore, the evidence of Miss Vida Palmer and Mrs. Paterson was considered; their testimony indicated the presence of only five or six persons in total, but did not state unequivocally that those five persons were the perpetrators, leaving open the possibility that some of those individuals were merely by-standers, such as Baburao Raje or Sarvarkhan, who happened to be present at the scene without participating in the offence.

The Court observed that the individuals who were present at the scene of the incident but who were not involved in the commission of the offence were clearly distinct from those who participated in the crime. It further noted that Mr. Holmes, who served as the sub-manager of the Bank and who had watched the incident from behind the double-glazed bank windows, was not in a position to determine how many persons actually took part in the affair, nor was he able to see how many persons entered the taxi. After giving careful consideration to the criticisms that had been levelled against the testimony of the various witnesses, the Court concluded that no misdirection on the part of the learned Judge could be discerned in the manner in which the Judge summed up the case for the jury. The learned Judge had discussed the evidence of each witness, and he had expressly pointed out to the jury the principal defects and contradictions that were apparent in their statements. In the paragraph that had been the subject of contention, the Judge had recorded that the witnesses were unanimous in stating that five or more men were positioned around the taxi and were involved in the attack, and the Court found no reason to disbelieve that assertion when the evidence as a whole was considered.

The Court also examined the explanation that had been given concerning the phrase “piling into the taxi from the rear door of the taxi on the Bank side.” The Court held that this explanation was not objectionable. The expression “piling into the taxi” was correctly used to describe the act of several persons attempting to enter the vehicle, and it could reasonably be understood to indicate that more than one individual was trying to get into the taxi through its rear door on the Bank side. All of these points had been clearly articulated by the learned Judge to the jury, and the Court was of the view that there was no misdirection whatsoever in that portion of the Judge’s summing-up.

Accordingly, the Court held that the issue of whether four or five persons were involved in the commission of the offence was a matter that lay strictly within the province of the jury, based on the evidence as it had been presented by the learned Judge. The jury, after considering the evidence, returned a unanimous verdict of guilty under section 395 of the Indian Penal Code.

The Court further considered the alleged minor misdirections that had been pointed out by counsel for the accused. It held that, even if such minor misdirections existed, they were not of a nature that would invalidate or vitiate the jury’s verdict. The Court therefore declined to devote further attention to those minor points.

However, the Court did note the claim of a serious misdirection that had been advanced by counsel for the accused. The claim alleged that the learned Judge, in his charge to the jury, had failed to highlight various points that could have been raised in favour of the accused. It was contended that the Judge had merely repeated the prosecution’s version of events on several occasions and had not drawn the jury’s attention to the weaknesses, defects, improbabilities, or incredibility of the prosecution’s case, including the criticisms raised by the defence, the improbabilities of the prosecution story, and the infirmities in the identification parades. The Court recorded this allegation but, having found no misdirection in the specific passages that had been examined, did not adopt the view that a serious misdirection had occurred.

The Court observed that the learned Judge, in his charge to the jury, failed to highlight any weaknesses or defects in the prosecution’s narrative, did not refer to the specific criticisms raised by the defence counsel against that narrative, and omitted any discussion of the improbabilities or the lack of credibility of the prosecution witnesses concerning the essential aspects of the case. The Judge also neglected to point out to the jury the infirmities relating to the test-identification parades and, as a result, his overall summation was characterised as unfair and prejudicial to the accused. Section 297 of the Criminal Procedure Code requires that, once the defence case and any reply by the prosecutor are concluded, the Court must address the jury, summarise the evidence presented by both sides, and lay down the applicable law. While the Judge is responsible for stating the law and directing the jury on legal questions, the determination of factual issues remains the exclusive domain of the jury. Nevertheless, the Judge must also present a summary of the evidence that does more than merely repeat it; he must arrange the material so as to illuminate both the strengths and weaknesses, the probabilities and improbabilities, thereby assisting the jury in discerning which version of the facts is more plausible. As noted in Ilu v. Emperor, the Judge’s duty is to provide the guidance that the jury is entitled to expect. The charge should not consist of a long, rambling recitation of the evidence without organising it under appropriate headings or helping the jury to weigh the material and distinguish the most significant points from those of lesser importance. In Nabi Khan v. Emperor it was stressed that a proper charge must be careful, efficient, and avoid unnecessary detail on irrelevant aspects of the case. The Privy Council, in Arnold v. King-Emperor, further observed that a jury charge must be read as a whole, with its legal propositions examined separately, but that the factual narrative, which ultimately lies with the jury, need not align with the views of others. It is not customary to treat a case as misdirection if the overall presentation has been fairly left within the jury’s province, and the Judicial Committee would intervene only where there is a gross misdescription of the entire bearing of the evidence. Applying these principles, the Court examined the criticisms levelled against the Judge’s charge. Although the defence counsel had examined the testimonies of several witnesses in great detail, the Court was unable to find any serious misdirection sufficient to invalidate the jury’s verdict or to constitute a failure of justice. Consequently, the learned Judge’s charge to the jury was deemed to have been within the acceptable bounds of judicial guidance.

It was observed that a judge’s view of the proceedings may differ from the view of others who examine the whole case in a stark manner. However, it would not be regarded as misdirection in the ordinary sense if, on the overall assessment, the matter was left fairly within the jurisdiction of the jury. The Judicial Committee of the Privy Council indicated that it would intervene only when a gross error occurred that amounted to a complete misdescription of the overall significance of the evidence. Keeping these principles in mind, the Court examined whether the criticisms raised against the learned Judge’s charge to the jury were of any substance. Counsel for the accused had examined the testimony of several witnesses in great detail, yet the Court was unable to find any serious misdirection that would invalidate the jury’s verdict or constitute a failure of justice. The charge delivered by the learned Judge was scrupulously fair; on several occasions he highlighted points that undermined the prosecution’s case and supported the defence version. He carefully identified the defects and contradictions in the statements of the prosecution witnesses and invited the jury to consider, in light of those defects, whether the testimony of each witness should be accepted. The Judge also addressed the evidence against each accused separately and, at the appropriate moments, reiterated the criticisms levelled against the prosecution’s witnesses in relation to each accused. In addition, after making general observations about the scrutiny of the evidence arising from the test identification parades, he warned the jury about the nature of that evidence and placed it in its proper context.

Having read the entire charge, the Court concluded that nothing in the learned Judge’s instructions amounted to the “complete misdescription of the whole bearing of the evidence” as described by the Privy Council, nor was there any failure of justice. Consequently, the Court could not accept the counsel for the accused’s submission that the charge was grossly unfair or that it contained any serious misdirection or omission that would vitiate the jury’s verdict. The verdict against Accused 1 and Accused 2 therefore remained valid, as it was not compromised by the admission of inadmissible evidence or by any misdirection. The convictions of these accused and the sentences imposed by the learned Sessions Judge were consequently affirmed.

In this case the Court observed that the trial judge had erred in law by admitting evidence of the test identification parades that related to the accused, because that evidence fell within the class of material prohibited by section 162 of the Criminal Procedure Code. The Court held that the admission of such inadmissible evidence amounted to a misdirection in the judge’s charge to the jury regarding that accused and therefore it was necessary to determine the effect of that admission on the verdict against him.

The counsel for the accused relied on the observations made in Kabiruddin v. Emperor (1), arguing that it was impossible to ascertain how the inadmissible evidence had influenced the jurors’ minds and that, likewise, it could not be shown that the evidence had not had a considerable effect on the jury’s decision. On that basis the counsel urged that the verdict should be set aside and the matter remanded for a new trial.

In contrast, the Court referred to a later decision of the Calcutta High Court, Surendra Dinda v. Emperor (2), which held that not every breach of section 162 necessarily vitiates the trial. The High Court in that case explained that the mere reception of evidence inadmissible under section 162 is not per se fatal; on appeal the court must examine whether the admission had so seriously influenced the jurors that they might have reached a different conclusion but for the inadmissible material. The Court emphasized that the key enquiry is whether prejudice was caused and, if no prejudice is established, whether the remaining material is sufficient within the meaning of section 167 of the Indian Evidence Act.

The Court then considered the relevant statutory provisions. Section 537 of the Criminal Procedure Code provides: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account … of any misdirection in any charge to a jury, unless such misdirection has in fact occasioned a failure of justice.” Section 167 of the Indian Evidence Act states: “The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.”

The Court noted that the most recent authority on the point was the Privy Council decision in Abdul Rahim v. King-Emperor (1), which clarified that when inadmissible evidence is admitted in a jury trial, the appellate High Court may, after excluding that evidence, uphold the conviction provided that the admissible evidence that remains, in its opinion, is sufficient to establish the guilt of the accused.

In applying section 167 of the Indian Evidence Act, the Court clarified that after removing any evidence that is inadmissible, a conviction may be upheld only if the remaining admissible evidence, in the Court’s opinion, is clearly sufficient to establish the accused’s guilt. The Court further observed that a misdirection of a jury is not by itself a sufficient ground to disturb the verdict. Accordingly, under section 423, subsection 2, and section 537 of the Criminal Procedure Code, the High Court is required to examine separately whether the verdict is erroneous because of the misdirection and whether the misdirection has actually caused a failure of justice. If the High Court reaches the conclusion that either condition is satisfied, it has a duty to intervene. In making that determination, the High Court may consider the entire case and decide for itself whether a failure of justice has occurred, meaning either that a guilty person has been acquitted or that an innocent person has been convicted.

The principle articulated in the earlier decision was subsequently adopted by the Supreme Court in Mushtaq Husain v. State of Bombay (1). In that case the Court held that when a jury has been misdirected and its verdict rests on assumptions and conjectures, the Supreme Court may either order a new trial or remit the matter to the High Court with a directive to evaluate the merits of the case in light of the Supreme Court’s decision and to determine whether the misdirections resulted in a failure of justice. Alternatively, the Supreme Court may itself examine the merits and decide whether a failure of justice has taken place. In either approach, the Court emphasized that it is entitled to review the whole case when deciding if a misdirection has indeed produced a miscarriage of justice.

The Court also examined the statutory framework in India that, under certain circumstances, permits an appeal against a jury’s verdict and authorises the appellate court to replace the jury’s decision with its own after a fresh consideration of the evidence. The Court concluded that the jury’s verdict can be set aside only when it is established that a serious misdirection by the judge in charging the jury has occurred, that such misdirection caused a failure of justice, and that the jury was misled in reaching its verdict. Consequently, in situations where inadmissible evidence has been admitted and incorporated into the judge’s charge to the jury, the proper course is to excise that inadmissible evidence from the record and then assess whether the balance of the remaining evidence is sufficient to sustain the conviction.

On this point, the Attorney-General raised an inquiry as to whether, having regard to the observations of the Privy Council in Abdul Rahim v. King-Emperor (1) (1946) L.R. 73 I.A. 77 and the Supreme Court’s pronouncements in Mushtaq Husain v. State of Bombay, the Court was justified in independently weighing the balance of the evidence and substituting its own verdict for that rendered by the jury.

The Court of Bombay held that it was proper for the appellate tribunal to assess the balance of evidence on its own and, if necessary, to replace the jury’s verdict with its own finding. In reaching this conclusion the Court relied on the observations of the Privy Council that approved the decision in Mathews v. Emperor (1), which stated that an appellate court may examine the evidence to determine whether the verdict was justified or whether a failure of justice had occurred. The Court also relied on the remarks of Mr. Justice Mahajan, then serving on the bench, who observed that, based on the material on record, no reasonable body of men could have arrived at the verdict that the jury had delivered. These observations are indeed present in the judgments that have been cited. However, when those judgments are read together they demonstrate that the appellate court must consider the entire case and decide for itself whether the jury’s verdict was proper or whether a miscarriage of justice had taken place. Consequently, the merits of the case had to be examined by the Court of Appeal, which was required to determine independently whether the conviction could be sustained.

The same issue was later presented before the Privy Council in Abdul Rahim v. King-Emperor (2). The Council noted that the long-standing controversy in the Indian High Courts centred on whether an appellate court, when deciding whether there are sufficient grounds to interfere with a jury’s verdict—especially where the trial judge had misdirected the jury—has both the right and the duty to go into the merits of the case and, on its own assessment of the evidence, decide whether the verdict was justified. One side argued that the accused is entitled to have guilt or innocence determined solely by the jury and that the appellate court must not substitute its own judgment. The opposing view, supported by Section 537 of the Criminal Procedure Code, contended that the appellate court cannot fulfil its statutory duty without independently evaluating the soundness of the verdict. In reaching its decision, the Privy Council referred to the ratio of cases beginning with Elahee Buksh (1) and ending with Mathews v. Emperor (1), concluding that the appellate court is indeed entitled to examine the evidence for itself, to ascertain whether the jury’s verdict was justified, and, if a failure of justice is found, to replace the jury’s verdict with its own.

In examining the record, the Court held that it may set aside a jury verdict when, after its own scrutiny, it finds the verdict to be erroneous or when a miscarriage of justice has occurred, meaning that a guilty person has been acquitted or an innocent person has been convicted. Accordingly, the Court considered whether, after removing the evidence arising from the test identification parades concerning accused 4, the remaining balance of evidence was sufficient to sustain his conviction. The prosecution had presented a series of evidences to demonstrate that accused 4 participated in the commission of the offence. Although Baburao Raje was described as an unreliable witness, the Court noted that, apart from his testimony, the evidence of Sarvarkhan was adequate to establish accused 4’s involvement. Sarvarkhan had positively stated that accused 4 was present at the scene and had taken part in the crime, and the Court saw no justification for discarding Sarvarkhan’s testimony despite the objections raised by counsel. There was also ample evidence concerning his earlier conduct, his association with accused 1 and accused 2, and his activities in Bombay after arriving from Delhi in early April 1951. He had rented rooms and a garage from Tayabali Vaid and had made attempts to purchase a Vauxhall from Haribhau and a Chevrolet from Ramdas. His (1) (1866) 5 W. R. 80 (Cr.). (2) A.I.R. 1940 Lah. 87. conversations with Lalchand, including one outside the Sandhurst Road branch of the Central Bank of India Ltd. and another at Apollo Bunder near the Sea Wall after he, accused 1 and Lalchand had trimmed their hair at the Taj Mahal Hotel, were recorded. The testimony of Chinoy and of Ramesh Chandra Mehta concerning a survey of the Lloyds Bank premises by him together with the other accused further suggested that he was highly likely to have been present at the scene and to have taken part in the offence, as also affirmed by Sarvarkhan. Subsequent conduct also implicated him: he departed Bombay on the Calcutta Mail bound for Allahabad on the night of 20 April 1951, and he expressed relief upon discovering accused 1 entering his compartment at the last moment. This relief was proved by the evidence of Gogte, which contradicted both accused 4’s own claim and the claim of accused 1 that they had travelled from Delhi to Kanpur on 18 April 1951 and had executed an affidavit before Magistrate Tandon. All of these facts, in the Court’s opinion, were sufficient to establish the prosecution’s case against accused 4. Consequently, even after excluding the testimony derived from the test identification parades, the remaining balance of evidence on record was deemed adequate to uphold his conviction.

In this case the Court affirmed the conviction and held that the appeals of all the accused must fail and therefore stand dismissed. The judge, identified as Jagannadhadas, concurred with the decision to dismiss the appeals but deemed it necessary to comment on several legal questions raised during the proceedings, particularly those concerning section 162 of the Criminal Procedure Code and section 27 of the Indian Evidence Act. He agreed that the objection raised under section 162, which challenges the admissibility of evidence relating to identification parades, does not apply to any parade that took place before 1 August 1951. Consequently, the only identification parade that required a determination of admissibility was the one conducted in January 1952 concerning the fourth accused. The evidence concerning that parade was presented by three persons: the police inspector identified as PW 80, Huzur Ahmed Mahomedali Khan; a Panch witness identified as PW 113, Damodar Dayaram; and two eyewitnesses identified as PW 13, Baburao Parshram Raje, and PW 15, Sarwarkhan. Counsel for the accused argued that although the testimony of the police officer might be excluded, the statements of the Panch witness and the eyewitnesses about the earlier identification could be admitted as corroborative evidence. The judge rejected this argument, observing that the material on record did not permit any distinction among the various categories of testimony. He explained that all the statements concerning the prior identification parade amounted essentially to prior statements of the identifying witnesses to the police officer and were therefore inadmissible. He further cautioned against any interpretation that would allow a legal separation between three classes of evidence – namely the police officer’s testimony, the Panch witness’s testimony, and the identifying witness’s own testimony – when each relates to a prior identification made at a police-conducted parade. He found such a differentiation to be unsound and not permissible in law, emphasizing that even though prior identification evidence is merely corroborative, it can still be highly valuable in cases of this nature. Turning to the objection raised under section 27 of the Indian Evidence Act, the judge identified two principal pieces of evidence. The first was the recovery on 16 May 1951 of a tin box containing three revolvers and two tins of live cartridges. The second was the discovery on 19 May 1951 of a steel trunk containing government currency notes valued at Rs 6,47,400, which were produced by Kamalabai, the wife of the first accused, at the village of Bhagwasi, her native place. Regarding the first item, the judge noted that it was of limited importance because expert testimony failed to establish that any of the bullets recovered at the scene had been fired from the three revolvers, and this limitation had already been clearly conveyed to the jury in the charge. The second item, however, was of greater significance because some of the currency notes bore identification marks that linked them to the bundle of notes constituting the object of the offence. The evidence concerning this second item was supplied by the police inspector, PW 80, who testified that the police left Delhi at about six in the morning, arrived at Bagwasi at two or three in the afternoon on 19 May, and were led by the first accused to a house where the witness Kamala, the first accused’s wife, was pointed out. Upon the first accused’s request, Kamala produced a steel box from outside the house, which, when opened, contained six large bundles and five smaller bundles of one-hundred-rupee government currency notes. The portion of this testimony that was objected to concerned the manner in which these notes were produced.

The Court observed that the first piece of evidence, namely the recovery on 16 May 1951 of a tin box containing three revolvers and two tins of live cartridges, did not substantially affect the case because the expert testimony failed to demonstrate that any of the bullets recovered at the scene of the offence had actually been discharged from those three revolvers, and this limitation had been sufficiently stated in the charge to the jury.

The Court then turned to the second piece of evidence, which it regarded as more significant. Certain currency notes among those seized bore identification marks that showed they were part of the bundle of notes that formed the object of the offence. The relevant testimony was that of Police Inspector, identified as PW 80, who recounted the following. He and his party departed from Delhi at about six in the morning and arrived at Bagwasi at about two or three in the afternoon on 19 May. There the first accused escorted them to a house and identified a witness named Kamala, who was the wife of the first accused. At the direction of the first accused, Kamala produced from outside that house a steel box. When the box was opened, the inspector found six large bundles and five smaller bundles of one-hundred-rupee Government of India notes.

The Court noted that the contested portion of this testimony was the statement that the production of the box occurred “at the instance of the first accused.” The prosecution sought to use that remark to create a direct link between the first accused and the discovery of a very large sum of money that bore marks indicating it derived from the loss suffered by the Bank as a result of the offence. The Court considered that while a police officer’s reference to a recovery being “on the information of” or “at the instance of” an accused may not automatically bring the matter within the ambit of section 27 of the Indian Evidence Act, the specific objection raised by the appellants was that the wording “at the instance of an accused” or “in consequence of information given by an accused” allowed the officer to go beyond merely recording the receipt of information and to imply that the information itself directly connected the accused with the recovered objects.

The Court agreed that the prosecution should not be permitted to rely on such evidence unless the admissible portion of the information was placed on the record. The Court found considerable force in the objection, reasoning that information supplied by an accused in circumstances of this kind might, upon scrutiny, reveal only a remote rather than a direct connection. In such a situation, evidence of the bare fact that information was given could be inadmissible and might cause serious prejudice to the accused. Consequently, the Court was not prepared to declare the view expressed by Chief Justice Chagla in the unreported judgment erroneous, and chose to reserve its opinion on that point for a more detailed consideration. Nevertheless, the Court noted that even if the police officer’s statement that the recovery was “at the instance of” or “in consequence of information furnished” by the first accused were to be excluded, there

The Court observed that the testimony of the police officer remained that the trunk which contained the currency notes had been produced by Kamalabai, who was the wife of the first accused, at her place of residence. The Court held that this piece of testimony was clearly admissible against the first accused because it demonstrated a connection between him and the seized notes. Consequently, the Court concluded that no prejudice had been caused to the first accused by the admission of this evidence. The Court further noted that the defence had not raised any objection under section 27 of the Indian Evidence Act at the trial, and that no such objection appeared in the grounds of appeal filed before the High Court.

Having previously expressed the view that the identification-parade evidence relating to the fourth accused was inadmissible, the Court proceeded to examine the remaining material of evidence that had been adduced against that accused. After reviewing that evidence, the Court agreed that the circumstances did not warrant any interference with the verdict, even in respect of the fourth accused. Accordingly, the Court dismissed the appeals. The judgment also recorded reference to the Bombay High Court’s decision in Criminal Appeals Nos. 454 and 464 of 1949, concerning the case titled Rex v. Gobutchand Dwarkadas Morarka No. I, which had been delivered on 11 January 1950.