Baleshwar Rai And Others vs The State Of Bihar

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

Court: supreme-court

Case Number: Criminal Appeals Nos. 176 to 178 of 1961

Decision Date: 26 April 1962

Coram: Mudholkar, J.

In this matter the Supreme Court of India delivered a judgment on 26 April 1962 concerning an appeal filed by Baleshwar Rai and several others against the State of Bihar. The case is recorded as Baleshwar Rai and Others versus The State of Bihar, and the judgment was rendered by Justice Mudholkar. The principal issue under consideration involved the interpretation of section 162 of the Code of Criminal Procedure (Act V of 1898) with respect to statements made to an investigating officer. The Court observed that section 162 provides only a bare proof rule for statements recorded by a police officer during the course of an investigation and does not automatically exclude every remark uttered within the period of investigation from being admitted as evidence. For a statement to fall within the ambit of the provision, it must be made not merely during the investigative period but also as part of the investigative process itself. The Court emphasized that the expressions “the period of investigation” and “course of investigation” are not synonymous; the former denotes a temporal span, whereas the latter refers to the substantive investigative activity. Accordingly, section 162 is directed at statements that are attributable to the enquiry conducted by the investigating officer and does not apply to statements made outside that enquiry. This principle was applied to the facts of the case, which involved the conviction of three appellants for offences under sections 302 and 34 of the Indian Penal Code. The learned Additional Sessions Judge of Monghyr had found Ram Chandr\na Chaudhary, Baleshwar Rai (also known as Nepali Master), and Jogendra Chaudhary guilty of murder and sentenced each of them to death. Their convictions and sentences were upheld by the Patna High Court, and they subsequently obtained special leave to appeal before this Court.

The prosecution case, as summarized by the Court, stated that on the evening of 17 March 1959 at approximately eight o’clock, the village watchmen of Fateha assembled in the customary “crime centre” of the village. The individuals present included the late Anandi Paswan, Misri Paswan (identified as PW‑2), and Baleshwar Paswan (identified as PW‑3). The trial judge had concluded that the evidence presented, including the statements taken by the investigating officers, fell within the scope of section 162 and therefore could not be used as substantive proof against the accused. The appellants contended that the statements were improperly excluded, arguing that the statutory provision should not bar evidence that was not directly connected to the investigative process. After examining the statutory language and the surrounding circumstances, Justice Mudholkar affirmed that the section applies only to statements made to a police officer during the investigation itself and that the exclusion of such statements must be limited to those that are part of the official enquiry. Consequently, the Court upheld the findings of the lower courts, confirming the convictions and the death sentences imposed on the three appellants.

In the village of Fateha the night watchmen consisted of Anandi Paswan, Misri Paswan, Narain Paswan and Baleswar Paswan, all of whom were positioned on a chouki that served as a guard post. Anandi Paswan was found on the chouki equipped with a bhala and a muretha, while Misri Paswan lay nearby holding a pharsa and another muretha; these weapons together with the deceased’s shirt were also placed on the chouki. The remaining two watchmen, Narain Paswan and Baleswar Paswan, were reclining on the ground adjacent to the chouki. The central meeting place for the watchmen, referred to as the crime centre, was situated in the dalan of Tilak Chaudhary, who is identified as PW‑6. In the same structure, another individual, Srilal Chaudhary, the brother of Tilak Chaudhary and designated as PW‑7, was lying on a khatia on the north‑east side of that dalan. In a room adjoining this area were Nathuni Chaudhary, also known as Durga Das (PW‑11), and Ramchander Jha (PW‑12). According to the prosecution’s account, shortly before nine o’clock in the evening a voice from outside shouted “Darogaji”, prompting the deceased Anandi Paswan and Misri Paswan to rise from their places. The night was illuminated by moonlight, and at that moment they observed Ramchandra Chaudhary, Jogendra Chaudhary and a third individual, later identified as Nepali Master, standing close by. As the two watchmen advanced toward the accused, Jogendra Chaudhary and Nepali Master seized Anandi Paswan while Ramchandra Chaudhary apprehended Misri Paswan. Both Ramchandra Chaudhary and Jogendra Chaudhary had firearms slung across their shoulders. The three accused then escorted the two watchmen toward the road that lay to the east of the dalan, moving in a north‑to‑south direction and proceeding further south. Neither Anandi Paswan nor Misri Paswan raised any cry, apparently because they were threatened that any resistance would result in them being shot. The party eventually reached a location situated to the west of Peare Sao’s house and to the east of the residence of Rampratap Tanti, identified as PW‑5. At that spot the deceased called out for Rampratap’s assistance and, breaking free from his captors, began to run westward. In response, Ramchandra Chaudhary released his grip on Misri Paswan and fired a shot at the fleeing Anandi Paswan. Misri Paswan subsequently fled into Peare Sao’s house and sought shelter there. While entering the house he heard a second gunshot; his presence was noticed by Mrs. Ajo, the wife of Peare Sao (PW‑8), who forced him to leave the premises. After being expelled, Misri Paswan emerged into the lane and concealed himself behind a door. When the moon set and darkness fell, he proceeded to the house of Fakir Paswan, identified as PW‑4, which lay east of Peare Sao’s house, and narrated the incident to him, naming Ramchandra and Jogendra as the two participants. In the early hours of the following morning he went to the spot where the gunshots had been fired and discovered the body of the slain Anandi Paswan, a watchman lying face down in a ditch beside the road, bearing two gunshot wounds on his back. He then returned home, contacted the other watchmen, Narain Paswan and Baleswar Paswan, placed them in charge of the deceased’s body, and thereafter proceeded to the police station along with Ramdeo, the son of the deceased.

In this matter, after Ramdeo, the son of the deceased, arrived at the police station, he lodged the first information report. The junior Sub‑Inspector then began the investigation, completed it, and filed a charge‑sheet against the three accused on March 15, 1959. The prosecution described the accused as “veteran criminals” and claimed that the watchmen had regularly informed the police about their movements, providing a motive for the murder. It was further alleged that the deceased had assisted the Dalsingsarai police in apprehending Motia Mushar, who was the ploughman of the appellant Ramchandra, in a dacoity case. All three accused denied participation, asserting that the police had fabricated a false case. The principal prosecution evidence came from the second witness, Misri Paswan, who named Ramchandra Chaudhary and Jogendra Chandhary in the FIR, while indicating that the third accused was unknown. In addition to Misri Paswan, five other witnesses—Narain Paswan, Rampratap Tanti, Srilal Chaudhary, Nathuni Chaudhary and Ramchander Jha—identified Ramchandra and Jogendra. These witnesses had opportunities to see the accused because some were present in the “dalan” and others in an adjacent room when the accused approached, and one of them shouted “Darogaji.” Their testimonies were accepted as true and sufficient by the learned Sessions Judge, who heard them directly, and this acceptance was affirmed by the High Court. The appellate court could not revisit these findings under the special leave jurisdiction.

The learned counsel argued that, with respect to Jogendra Chaudhary, the prosecution had not established a common intention to murder, noting that such intent must be inferred from the facts. The record showed that all three accused arrived together, and that Ramchandra and Jogendra each possessed a firearm. The prosecution, to the satisfaction of the Additional Sessions Judge and the High Court, proved that Anandi Paswan had been supplying police information about the accused’s movements and had played a significant role in securing the arrest of Motia Mushar in a dacoity case, thereby creating a grievance in Ramchandra. Consequently, it was inferred that Ramchandra intended to exact revenge on Anandi Paswan by killing him, and that the other two accused shared this purpose. The High Court highlighted Misri Paswan’s statement that Ramchandra, at the time of the incident, remarked that his servant Motia had been forcibly taken away, and that Jogendra sarcastically asked the deceased, “Where is your military today?” These circumstances left no doubt that a common intention to commit murder was established not only against Jogendra but also against the third accused who accompanied them.

In the proceedings concerning Nepali Master, counsel for him argued that the accused had been identified at the test identification parade by only a single witness and that the remaining individuals who were supposed to be present for identification had failed to appear, rendering it legally impermissible to rely on the testimony of a sole witness. The argument noted that, although a conviction may be sustained on the basis of a single witness if the trial court considers that witness to be truthful, the facts of this case differed because Nepali Master was actually identified by two witnesses, namely P. W. 7, Srilal Chaudhary, and P. W. 9, Dukhi Mahto. The defence further contended that Srilal Chaudhary, being an elderly man of seventy‑five years with weak eyesight, should have his testimony disregarded. Nevertheless, both the learned Sessions Judge and the High Court had accepted his evidence, and the Court stated that it could not reassess that finding. Additionally, the defence submitted before the High Court and reiterated before this Court that the test identification took place a long time after Nepali Master’s arrest, casting doubt on the reliability of the two witnesses’ testimony. The High Court examined this submission and observed that, although the contention appeared persuasive, it could not be accepted in view of Exhibit 6. Exhibit 6 is an anonymous letter addressed to Senior Sub‑Inspector Kashi Nath (P. W. 22); the portion admitted into evidence reads: “The rascal Anandia Choukidar spoiled the life of that poor Mushar by instigating the S. 1 of Police of Dalsingsarai and subsequently he also spied against us for nothing.” This letter, together with Exhibit 3 dated 9 June 1959, which was undeniably written by Nepali Master, was forwarded to the Government handwriting expert. The expert examined both documents and testified that a board of experts consisting of himself, Chatterjee and Srivastava examined the items independently and unanimously concluded that Exhibit 3 matched the disputed writing contained in Exhibit 6. Consequently, the admission of Exhibit 6 regarding motive is clearly admissible under Section 21 of the Indian Evidence Act. The High Court therefore correctly held that Exhibit 6 corroborated the testimonies of P. W. 7 Srilal Chaudhary and P. W. 9 Dukhi Mahto. The defence further argued that Exhibit 6 should be excluded by virtue of Section 162 of the Criminal Procedure Code because it was obtained by the Sub‑Inspector during the investigation. It was clarified, however, that Section 162 only bars the proof of statements made to an investigating officer during the course of an investigation; it does not prohibit every statement made during the period of investigation from being proved. For a statement to fall within Section 162, it must not only be made during the investigation but also be part of the investigative process itself.

In this case the Court examined the meaning of the phrase “period of investigation” and the phrase “course of investigation” and held that the two expressions are not identical. The Court explained that Section 162 of the Criminal Procedure Code applies only to statements that are recorded by a police officer while he is actually investigating an offence. The introductory words of Section 162 refer specifically to statements made to a police officer during the course of the investigation. Consequently, for a statement to be excluded under this provision it must be directly attributable to the enquiry that is being conducted by the investigating officer. A statement that lies outside that enquiry, that is, a statement that is not part of the investigative process, does not fall within the scope of Section 162. The Court therefore concluded that the document identified as Exhibit 6 is a communication that is outside the ambit of Section 162 and therefore is not barred from being proved as evidence. As a result, the Court affirmed that the High Court was correct in admitting Exhibit 6 into evidence. Since the appeals raised no substantive ground capable of overturning that decision, the Court dismissed the appeals and ordered that they be dismissed.