Patna High Court
Ghulam Muhammad Khan vs Emperor on 22 December, 1924
Equivalent citations: 86IND. CAS.814
JUDGMENT John Bucknill, J.
1. This was an appeal made by a man named Gulam Muhammad. He was tried by the Judicial Commissioner of Chota Nagpur together with another man, upon a charge of having committed dacoity--an offence punishable under the provisions of Section 396 of the Indian Penal Code (dacoity with murder). The appellant and the other man were both found guilty and sentenced to transportation for life. The Judicial Commissioner, who presided at the trial, was assisted by four Assessors, all of whom considered that the appellant was guilty.
2. Now there is, in this appeal, only one short but by no means simple point. It is unnecessary to set out the facts in this case at any length as they are not needed for the purposes of explaining the single argument which has been addressed to us by the learned Vakil who appears for the appellant. It is sufficient to say that on the night of the 21st March last there was a dacoity at the house of one Chethu Ahir. Chethu was terribly beaten and was killed, his skull was smashed and he had many other injuries.
3. Now the appellant only purported to be recognised by one witness for the prosecution. This person was one Palu who was the son of the deceased man. Palu who was himself very roughly handled--he was stabbed in the buttock and covered with bruises--and although the dacoits were closely muffled up in galmochas--claims to have recognized some of the dacoits; at any rate he picked out the appellant at an identification parade; he did not know his name.
4. This was the only direct evidence given by the prosecution against the appellant, and had the matter rested there I think it is certain, or at any rate, very probable, that the Judicial Commissioner would have hesitated to convict him. It is often and wisely not thought safe to convict a person upon his identification by one individual under circumstances of strain and terror accompanying violent crime. But--and this is the crux of the present case--the appellant after he had been apprehended and whilst the Police enquiry was in progress, went before a Magistrate and made a statement which was recorded under the provisions of Section 164 of the Cr. P.C.
5. The Magistrate, I imagine thought he was going to receive a confession and in fact recorded it as such and I gather thought it was in fact some form of confession. The Judicial Commissioner designates it as "a statement of the nature of a confession." There is no doubt, however, to my mind that it was not in terms a confession but it admitted the presence of the appellant at the occurrence. I need not set the appellant's statement out at length but its tenour is quite unequivocal. It is simply to the effect that a person called "Ganausi Khan" asked the appellant one afternoon to accompany him in order to try and help him find and catch one of his (Ganausi Khan's) labourers who had run away. The appellant acquiesced and went with Ganausi Khan to Ganausi Khan's house. They reached there at about 7 p. M. At Ganausi Khan's house were some other men and after having had some food they and Ganausi Khan and the appellant went off in search of the absconding labourer. Some more men were picked up and eventually they came to the village where the dacoity took place. When close to the village, Ganausi Khan for the first lime disclosed to the appellant that the objective of the party was really dacoity. The appellant refused to participate in it but Ganausi Khan threatened to kill the appellant if he tried to run away. He was thus forced to remain a fearful spectator of what took place, he took no part in the affair but watched under duress, he saw the whole terrible business and the unfortunate Chethu murdered, the appellant was 10 or 15 paces away. He emphasized his own innocence. I think it is obvious that the story of duress makes his statement one in the main essentially of exculpatory character.
6. The Judicial Commissioner had admitted this statement in evidence and has used it against the appellant as corroborative of Palu's identification of the appellant. Palu says the appellant actually slapped him.
7. At the trial the appellant retracted his statement and said that he was tutored by the Police to make it but I see no reason to think that that was the case, nor did the Judicial Commissioner. The Magistrate who took the statement was examined. The admission of this statement was objected to. The Judicial Commissioner was not very clear how he admitted the statement: he seems to have thought it was a sort of confession and, therefore, admissible; if it was a confession it certainly would have been admissible. It certainly is admissible if it is of a confessional character. Its value, of course, is as against the appellant, to show that he was in the company of the dacoits at the occurrence. The Judicial Commissioner adds that if it is not admissible under Section 164 (I presume he means as a sort of confession) "the statement could be proved and admitted under the ordinary law just like any other fact." I am not quite sure what the learned Judicial Commissioner here means; but I suppose that he contemplates that what an accused person says to a Magistrate would be admissible if the Magistrate gives evidence of the statement. Although we have had little definite authority placed before us in this case, it would seem doubtful whether if this is what the learned Judicial Commissioner intended to convey, his view is altogether correct. In the case of Legal Remembrancer v. Lalit Mohan Singha Roy 62 Ind. Cas. 578 : 49 C. 167 at p. 169 : 25 C.W.N. 788 : 28 Cr. L J. 562 : (1922) A.I.R. (C.) 342 it would seem to have been decided somewhat contrary to, at any rate, what may be a part of the learned Judicial Commissioner's view. In that case an accused person came before a Magistrate and made a statement. The Magistrate finding that the statement was not a confession, did not apparently, take it down in writing or, if he did do so, destroyed it. However, he was called as a witness at the trial and gave evidence as to what the accused person had said to him. The Calcutta High Court hold that this oral evidence was not admissible; that Section 164 of the Cr. P.C. contemplated not only the taking of statements in the nature of a confession but also any kind of statements whether made by an accused person or by anybody else, that it was not competent for a Magistrate who was asked to take a statement under the provisions of Section 164, Cr. P.C. to give oral evidence of any such statement made to him by an accused person (or apparently by anybody else) if he had not in fact complied with the Provisions of the section by taking down the statement in writing and in the prescribed form. The decision in that case does not really deal directly with the question of the admissibility at a trial of statements made to a Magistrate in accordance with the provisions of Section 164, Cr. P.C. by an accused person or by anybody else, although inferentially one might perhaps gather that their Lordships contemplated that such statements, of_ whatever nature they might be, would be admissible, though this inference is doubtful. However, it is, now at any rate, strenuously argued before us by the learned Vakil who appeared for the appellant, that this statement which was made by the appellant to the Magistrate under the provisions of Section 164 of the Cr. P.C. should not have been admitted by the Trial Court and used as against the appellant to corroborate the evidence of the witness who says that he identified the appellant at the time of the dacoity. Of course, if one examines Section 164, Cr. P.C., it will be seen at once that the section contemplates more than one kind of statement; it distinctly refers to confessions and portions of the section deal specifically with confessions. But it also contemplates other statements. At one time it would seem to have been the view of the Calcutta High Court that Section 164 of the Cr. P.C. only contemplated the confessions of an accused person and the statement made by persons who were or who were designed to be witnesses, vide Queen-Empress v. Bhairab Chunder Chuckerbutty 2 C.W.N. 702 but from this view express dissent was taken in the case quoted above [Legal Remembrancer v. Lalit Mohan Singha Roy 62 Ind. Cas. 578 : 49 C. 167 at p. 169 : 25 C.W.N. 788 : 28 Cr. L J. 562 : (1922) A.I.R. (C.) 342.
8. It will be observed that Section 164 does not say what statements or confessions made under its provisions are admissible in evidence at a trial. I take it that what statements or confessions made under Section 164 are admissible at a trial must depend upon the Law of Evidence itself. It would, I think, be a mistake to suggest that any statement or confession made under Section 164, Cr. P.C. is, simply because it may have been made under the provisions of that section, admissible at a trial for any or every purpose. As for confessions by an accused person, there is ample provision for their admissibility at a trial for certain purposes; his confession is capable, of course, of being used against an accused. But what is to be considered here is a different proposition. If an accused person makes a statement before a Magistrate which is not in fact a confession but is wholly of an exculpatory character, can that statement made by him before the Magistrate under the provisions of Section 164 be admitted at his trial as evidence in his favour. We have had no clear authority quoted to us on this point. In this country, however, it seems to me that the law contemplates that an accused person can open his mouth to produce matter which can be used at his trial only in a few ways; one is a confession properly recorded, another is when he is examined and makes his statement orally or files a written statement after the close of the case for the prosecution, and (sic) his last, if the circumstance occurs before the final Trial Judge. If he goes before the Magistrate and under the provisions of Section 164 makes a statement to him which is of an absolutely exculpatory character, I do not think that that statement could be used at his trial as evidence in his favour, for if this course was adopted, it would mean that the accused is competent to give evidence on his own behalf, fie has the opportunity of saying at his commitment and at his trial what he wishes to say. It is true that such statements have been utilized by Judges on the evidence of Magistrates who took the statement that the accused had, at perhaps an early stage, given his explanation of what had taken place. But although I have certainly seen exculpatory statements thus used, I am not sure whether such can properly be used for such a purpose: and I doubt it very much. Now if a statement of this kind could not be used even in the appellant's favour, could it then be used against him in any way? It must be borne in mind that the statement here is not a confession but of an exculpatory character, and does not intrinsically contain anything definitely evidential or inferential of guilt. At the utmost it is an admission that he was present, unwillingly, at the scene of the occurrence. In the case of Queen-Empress v. Jagrup 7 A. 646 : A.W.N. (1885) 131 : 4 Ind. Dec. (N.S.) 799 it was held by Straight, J., that a statement made by a person to the effect that he had witnessed and protested against the perpetration of a crime of which he was accused was not a confession but was admissible in evidence against him. In that case the statement was apparently made not under Section 164, Cr. P.C. but whilst he was in the custody of the Police, and although it is not quite clear, apparently to the Police. The report of the case is not a very lucid one but it would seem that the learned Judge was considering the point which was argued before him, that the statement was a confession made to the Police whilst the accused was in custody and that therefore, it was inadmissible. The learned Judge, however, held that it was not a confession and, therefore, presumably considered that it was admissible. If the learned Judge was right in this view it would certainly seem that a statement made before a Magistrate under the - provisions of Section 164 by a person in custody who is an accused person (such statement not being a confession but merely an admission of a relevant fact from which intrinsically no inference of guilt against the accused could be drawn) can a fortiori be utilised by the prosecution in evidence to prove that relevant fact; and if that relevant fact can be coupled up with other evidence for the prosecution, it can be used as against the accused person who made the statement. Although I have not been able to ascertain that Straight, J.'s decision has been regularly followed I can see no reason whatever why a statement such as has been made in this case now before us could not be given in evidence by the prosecution and utilised as against the accused as evidential of a fact relative to the prosecution story: namely, that the accused who made the statement was in fact at the scene of the dacoity and actually saw it take place. I have, therefore, after careful consideration, come to the conclusion that the accused's statement in this case is admissible. The only remaining question is, assuming that this statement may be taken in evidence, of what value it really is to the prosecution as being indicative of the guilt of the appellant. In itself and by itself it is not indicative in any way of his guilt, it simply proves that he was present at and saw what took place, but he himself admits this. But can it be said that his admission that he was there so corroborates his identification by the witness Palu that it must be taken that what this single witness states with regard to the active participation by the accused in the dacoity can be sufficiently relied upon in such measure as to justify the appellant's conviction? The witness does not suggest that the appellant had done more than slap him; what he says is. "Both these accused (identifies them) were amongst the dacoits: I do not know their names. One pressed on my neck and other slapped me. That bearded one (the appellant here) slapped me." One must not forget that whilst it is quite possible that the witness may have seen the appellant hanging about (as he himself says he was) on the outskirts of the gang, the attribution to him of any certain specific act is a very easy matter to allege, and very difficult to refute, in a time of terror and confusion, when he had been stabbed on the back with a spear and beaten, one can well understand that a witness might be greatly inclined to attribute some overt act to any individual whom he thought he recognised as being in the company of the gang of robbers. I have, however, some hesitation in coming to the conclusion that the appellant's admission that he was although under duress, at the occurrence, can be regarded as sufficiently corroborative of the single witness's statement that he (the appellant) took any overt part in the proceeding, to justify his conviction. On the other hand I am far from saying that in certain circumstances, such an admission by an accused person might not be sufficient, when coupled with other evidence, to secure his conviction. In this case, the evidence of identification of the appellant admittedly rests primarily upon the evidence of the single witness Palu, the evidence that the appellant took any active part is not very convincing nor to my mind very effective. If Palu's evidence had been, for example, that the appellant had been engaged in struggling with him or had been in such a special position with regard to him that he had particular good opportunities for observing his physiognomy, the case against the appellant would undoubtedly have been somewhat stronger; as it is the evidence given by the witness that the appellant committed an overt act is not of such a specific character but only of, what I may call, a somewhat though not altogether generalized nature.
9. Taking everything into consideration, I am of opinion that, although the case is one of great suspicion against the appellant, I hardly think that the evidence is sufficient to justify his conviction. His appeal must, therefore, be allowed and the appellant must set at liberty.
Ross, J.
10. I agree.