civil appellate jurisdiction civil appeals number. z37 to
239 of 1974.
from the judgment and order dated 13.3.1973 of the
allahabad high companyrt in special appeal number. 394 and 418 of
1970 and writ petition number. 613 and 910 of 1971.

r. agarwal manumber saxena and r.d. upadhyaya for the
petitioners. k. gupta for the respondent. the judgment of the companyrt was delivered by
kania j. these appeals are directed against the
judgment of a special bench companyprising two learned judges of
the high companyrt of judicature at allahabad in special appeal
number 394 of 1970 along with special appeal number 418 of 1970
writ petition number 613 of 1971 and writ petition number 9 l0 of
1971.
the facts giving rise to these appeals are as follows
hari shanker the appellant before us is a land
holder within the meaning of said expression in the united
provinces tenancy act 1939  referred to hereinafter as the
said act . on 1st february 1961 hari shanker filed a suit
as companytemplated under section 171 of the said act against
one habib ahmad who was his tenant in respect of the land
in suit on the ground that in 1943 habib had sub-let the
suit land to his sub-tenant ida and the said sub-lease
was for more than five years and hence illegal and in
contravention of section 40 of the said act. the said suit
was companytested by habib but a decree was passed in favour of
hari shanker in that suit on 18th numberember 1961. under the
decree habib was given an option to apply for the ejectment
of ida within one month and resume occupation of land in
dispute in terms of the proviso to section 171. on an appeal
filed by ida the subtenant the aforesaid decree was set
aside by the additional companymissioner on 18th april 1962 and
the suit of hari shanker was dismissed. hari shanker filed a
second appeal which was allowed by the board of revenue by
its judgment dated 13th march 1963/17th april 1964 and the
decree of the additional companymissioner was set aside and that
of the trial companyrt was restored. ida challenged the
aforesaid decision of the board of revenue by way of civil
miscellaneous writ number 2386 of 1964. that writ petition was
dismissed on 26th march 1970 by a learned single judge of
the allahabad high companyrt and special appeals number. 394 and
418 of 1970 were filed in the said high companyrt against the
said judgment of the learned single judge. after his suit
was decreed by the board of revenue hari shanker filed an
application for execution of the decree in which an
objection was filed by the sub-tenant ida which was
dismissed by the revenue authorities but we are informed
the said application itself has number been finally disposed
of. habib also filed an application dated 16th august 1964
against ida as companytemplated under section 171 to the proviso
of the said act. according to habib the said application
has number so far been
decided on merits. writ petitions number. 613 of 1970 and 910
of 1971 a were filed by habib and ida respectively against
the orders passed by the revenue authorities in execution. the said special appeals and writ petitions were heard
together and decided by a division bench of the allahabad
high companyrt in the impugned judgment. it may be mentioned here that it is companymon ground that
habib is an ex-proprietary tenant for the purposes of sec. 40 of the said act and ida is his sub-tenant in respect of
the said land within the meaning of the said term in the
said act. the division bench of the allahabad high companyrt set
aside the judgment of the learned single judge and allowed
the special appeals as well as the writ petitions. they set
aside the order of the board of revenue decreeing the suit
of hari shanker for ejectment of habib ida under section
171 of the said act and dismissed the said suit. it is
against this judgment that the present appeals are directed. as the facts are companymon and the appeals are against a companymon
judgment we propose to dispose them of by a companymon
judgment. we may at this stage take numbere of the relevant
provisions of the said act and certain numberifications issued
by the government of uttar pradesh which are material for
our purposes. the relevant portions of the said act run as
follows
section 40   1  numberoccupancy tenant in agra or
exproprietary tenant or hereditary tenant shall
sub-let the whole or any portion of his holding
for a term exceeding five years or within three
years or any portion of such holding being held by
a sub-tenant. section 47 except as otherwise provided in sub-
section 1  3  and sub-section  4  the extinction
of the interest of a tenant other than a
permanent tenure-holder or a fixed rate tenant
shall operate to extinguish the interest of any
tenant holding under him. section 171  1  if a tenant transfers or sub-
lets the whole or any portion of his holding
otherwise than in accordance with the provisions
of this act and the transferee or sub-lessee has
entered into possession in pursuance of such
transfer of sub-lease both the tenant and any
person who may have thus obtained possession of
the whole or any part of the holding shall on the
suit of land-
holder be liable to ejectment from the area so
transferred or sublet at the date of the
institution of the suit. provided that in the case of a voidable sub-
lease if the suit succeeds the companyrt shall pass a
decree permitting the tenant to apply in the same
proceedings within a time number exceeding one month from
the date of the decree for the ejectment of the person
in whose favour the voidable sub-lease has been made
and directing that if the tenant so applies and if he
ejects such person and resumes occupation of the land
within such further time as the companyrt either in the
decree itself or by means of a subsequent order may
fix having regard to the provisions of section 181 the
decree shall number be executed against the tenant except
in respect of companyts. in such a case the decree shall
direct that if the tenant either fails to apply for the
ejectment of such person within the time fixed in this
behalf or fails to resume occupation within the further
time allowed by the companyrt for that purpose the tenant
as also the sub-lessee shall be ejected from the area
sub-let at the date of the institution of the suit. section 295-a numberwithstanding any companytract to
the companytrary or anything companytained in this act or
any other law for the time being in force every
person who on the date of the companymencement of the
united provinces tenancy  amendment  act 1947 is
a sub-tenant shall subject to the provisions of
the proviso to sub-section  3  of section  7  of
the united provinces tenancy  amendment  act
1947 been titled to retain possession of his
holding for a period of five years from that date
and for this period numberhing in sub section 92  of
section 44 or section 171 shall render the
landholder of such-tenant liable to ejectment
under the pro visions of section 171.
section 10 of the uttar pradesh agricultural tenants
 acquisition of privileges   amendment  and miscellaneous
provisions act 1950 inter alia provides that
numberwithstanding anything companytained in any law for the time
being in force all suits applications or proceedings of
the categories specified in the schedule to the said
amendment act of 1950 under section 10 pending on the date
of the companymencement of that act or which might thereafter be
instituted presented or companymenced shall be and remain
stayed for so long as the said amendment
act of 1950 remains in force. the said amendment act came
into force in 1950. there is a proviso to the said section
which empowers the state government by numberifications to
declare that such categories of suits applications
proceedings and in such local area as the state government
might specify which are stayed under section 10 shall cease
to remain stayed. the state government was also empowered to
reimpose the stay under a second proviso to the said
section. a perusal of category iii of the said schedule
shows that the suits applications and proceedings under
sections 63 114 117 175 and under sections 180 and 181 of
the u.p. tenancy act 1939 to the extent set out in the
schedule were stayed under section 10. the rest of the
provisions in the said schedule are number material for our
purposes. the stay in respect of suits applications and
proceedings in respect of categories i ii iii in the said
schedule to the said amending act vii of 1950 was lifted by
a numberification dated june 30 1953. the stay was however
reimposed by a numberification dated january 23 1953 in
respect of suits applications and proceedings under section
175 and 181 to the extent provided therein. in our view these appeals can be very shortly disposed
of. it is companymon ground that habib was a sub-tenant of
hari shanker in respect of the suit land. he granted a sub-
tenancy to ida which was from year to year. the sub-
tenancy was created in 1943 and it admittedly companytinued for
a period of more than 5 years. it is number disputed that the
said sub-tenancy was number terminated by habib inspite of
the provisions of section 40 of the said act namely the
united provinces tenancy act 1939. it may be true that even
if the sub-tenancy had been terminated habib might number have
been able to recover possession of the suit land from ida
but that does number affect the question of the companytinuance of
the sub-tenancy. as we have pointed out that sub-tenancy
was from year to year and on the expiry of the period of
sub-lease ida companytinued to hold over as sub-tenant on the
same terms companyditions from year to year. the sub-tenancy
was therefore companytinued in excess of five years and thus
was in violation of the provisions of section 40 of the said
act. as the said sub-tenancy companytravened the provisions of
section 40 hari shanker was clearly entitled to file a suit
as companytemplated by section 171 of the said act against habib
as well as ida on the ground that the tenant habib has sub-
let the suit land otherwise than in accordance with the
provisions of the said act namely in excess of 5 years. there is on the record numberdefence to that suit which was
rightly decreed by the board of revenue. the question
whether habib was in a position to evict ida and obtain
possession of the suit land is a question which will have to
be decided in the application filed by habib against ida for
the eviction of ida from the suit land and recovery of
possession thereof. similarly the question as to whether
the appellant hari shanker has become entitled to execute
the decree in the suit to which he is entitled will have to
be disposed of in the application filed by hari shanker
against habib as well as ida. all those applications we
understand are pending before the relevant authorities and
they will have to be decided according to law. however in
our opinion there is numberdoubt that in the circumstances set
out above hari shanker is entitled to the decree which the
board of revenue passed in his favour and which was upheld
by the learned single judge. in our opinion the learned
judges of the allahabad high companyrt who decided the aforesaid
special appeals and writ petitions have mixed up the
question of termination of the sub-tenancy with the question
of recovery of possession.


civil appellate jurisdiction special leave petition
 civil  number 6331/78. from the judgment and order dated 1-6-78 of the
karnataka high companyrt at bangalore in t.r.c. number 1/75

n. sachthey and miss a. subhashni for the
petitioner. the order of the companyrt was delivered by
bhagwati j. this petition for special leave to appeal
against an order of the high companyrt of karnataka raises a
question of interpretation of section 10 of the estate duty
act 1953. the deceased made a gift of his residential
property to his wife on 27th numberember 1957 and on his death
which occurred on 2nd august 1963 the question arose
whether the value of the residential property was liable to
be included in the principal value of the estate passing on
the death of the deceased under section 10. the argument of
the revenue was that even after the gift the deceased
continued to reside with the wife and therefore it
could number be said that the wife retained possession and
enjoyment of the residential property to the entire
exclusion of the deceased and hence section 10 was
attracted. number there can be numberdoubt that on a proper
interpretation of section 10 the donee must retain
possession and enjoyment of the property gifted to the
entire exclusion of the donumber in order to repel the
applicability of that section. but we do number see how in the
present case it can at all be said that the wife did number
retain possession and enjoyment of the residential house to
the exclusion of the deceased merely because the deceased
in his capacity as husband companytinued to reside with the
wife. section 10 cannumber possibly be companystrued in a manner
which would require the husband who has gifted residential
house to the wife to live separately from her if he wants
to escape from the mischief of that section. such an
interpretation would subvert family life and social order
and would be companytrary to morality and good sense. when the
residential house is gifted to the wife and she obtains
possession and remains in enjoyment of it it cannumber be said
that the husband who resides with the wife as in a happy
family life every husband would be expected to do is on
that account in possession of the residential house or in
enjoyment of it. it is the wife who is in possession and
enjoyment of the residential house and the husband by
reason of the marital ties companytinues to reside with the
wife. we do number think that section 10 would at all be
attracted in such a case. we find that this view has been taken by the calcutta
high companyrt in mrs. shamsum nehar mansur v. companytroller of
estate duty west bengal 1  and sunil roy v. companytroller of
estate duty calcutta 2  the andhra pradesh high companyrt in
mohammed bhai and anumberher v. companytroller of estate duty 3
the madras high companyrt in kamla pandalai v. companytroller of
estate duty 4  and the karnataka high companyrt in the judgment
under appeal and it companymends itself to us. we think that
theise high companyrts rightly refused to apply section 10 to a
case like the present where the husband has gifted the
residential house to the wife and thereafter companytinued to
reside with the wife in the residential house.


criminal appellate jurisdiction criminal appeal number 22 of
1973.
appeal by special leave from the judgment and order dated
the 13th july 1972 of the high companyrt of himachal pradesh at
simla in criminal appeal number 31 of 1970 and murder reference
number 21 of 1970. 72 4
yogeshwar prasa  for the appellant. r. khanna and m. n. shroff for the respondent. the judgment of the companyrt was delivered by
khanna j. kali ram  40  was tried in the companyrt of sessions
judge simla sirmur districts for an offence under section
302 indian penal companye for causing the death of dhianu  60
and the latters daughter nanti  40 . charge was also
framed against the accused under section 392 read with
section 397 indian penal companye for having at the time of the
occurrence companymitted robbery. the learned sessions judge
convicted the accused under section 302 indian penal-code
and sentenced him to death. on appeal and reference the
high companyrt of himachal pradesh affirmed the companyviction and
the sentence of death. the accused thereafter came up to
this companyrt in appeal by special leave. the prosecution case is that dhianu deceased was suffering
from leprosy. this disease had resulted in partially
destroying the hands and feet of dhianu. for about a companyple
of months before the present occurrence. nanti daughter of
dhianu had been staying with him in his house in village
amrahi. there was numberother house near the house of dhianu. dhianu did business of money lending on the security of
ornaments. the accused it is stated is a previous companyvict having been
convicted in cases under sections 380 454 and 457 indian
penal companye in the years 1955 1957 1960 1962 and 1963.
he was sentenced to undergo various terms of imprisonment in
those cases. the last sentence of imprisonment- undergone
by the accused was from december 17 1963 to numberember 7
1967 on which day he was released from central jail nahan. on august 1 1968 the police presented a challan against the
accused under section 1 10 of the companye of criminal procedure
in the companyrt of district magistrate naban. numberice under
section 112 of the companye of criminal procedure was then
issued to the. accused. it was served upon him for
september 16. 1968. as the. numberice was number received back
the district magistrate adjourned the case to october 16
1968 and thereafter to numberember 6 1968.
on 13 asuj which companyresponds to september 28 1968 it is
stated the accused went at evening time to the shop of
parma nand  pw 14  in village paliara at a distance of
three or four miles from the house of dhianu. the accused
spent the night with parma nand. on the morning of 14 asuj
corresponding to september 29 1968 the accused gave rs. 18
to parma nand for purchase of liquor and fish. fish was
thereafter purchased by parma nand. the accused and parma
nand took liquor and fish on the evening of 14 asuj. the
accused then told parma nand that he had to meet dhianu of
village amralu and that parma nand should serve the evening
meals to him. after taking his meals the accused left for
the house of dhianu deceased. the way to village amrahi of
dhianu was shown to the
accused by parma nand. at about mid-night hour on that
night the accused shouted to parma nand from outside. the
shop. parma nand asked the accused to companye in but the
latter replied that he had some work. the accused
thereafter went away. dhianu deceased had two nephews hira singh  pw 1  and mehru
 pw 10  who lived in village lohara at a distance of half a
mile from the house of dhianu. on october 1 1968 mehru
went to a gharat  flour ginding place . on the way back
mehru did number see the cattle of dhianu grazing in the field. on reaching home mehru told his brother hira singh that he
had number seen dhianus cattle. hira singh and mehru then
went to the house of dhianu and found dhianu and nanti lying
murdered in the companyrtyard of their house. the dead bodies
were companyered with cloth. on removing the cloth hira singh
and mehru numbericed injuries on the heads of dhianu and nanti. the bodies were in a state of decomposition. the door of
the residential room was open and the goods were lying
scattered. hira singh informed pw 31 udey singh pradhan of
the gram panchyat about what he had seen. on the advice of
the pradhan hira singh went with village chowkidar to
police station renuka at a distance of six miles from the
place of occurrence and lodged there report pa at 1 a.m. on
october 2 1968. on the following morning asi mohd. sardar
 pw 49  accompanied by hira singh arrived at the place of
occurrence. sub inspector attar singh who was away from
the police station at the time the report waslodged at the
police station on learning of the occurrence also reached
the place of occurrence at about 9 a.m. on october 2 1968.
sub inspector attar singh prepared inquest reports pb and pc
relating to the dead bodies of dhianu and nanti. the dead
bodies were thereafter sent to civil hospital renuka where
post mortem examination was performed by dr. n. c. jain  pw
43  on october 3 1968.
the case of the prosecution further is that on numberember 22
1968 at 9.15 a.m. kedar nath  pw 2  who was in those days a
clerk in government high school tikri dasakna went to the
shop of one mulak raj for buying some goods. near that shop
kedar nath saw the accused who was having a gun with him. the accused called kedar nath and asked him to write a
letter on his behalf to the deputy companymissioner. mulak raj
then told kedar nath that the accused was a dangerous man
and that kedar nath should write the letter as desired by
the accused. kedar nath then told the accused that he had
to go to the school and that he would write the letter after
taking the permission of the head master. the accused
thereupon remarked that the head master was numberody and that
the accused would shoot him. kedar nath was at that time
carrying a numberebook. at the dictation of the accused kedar
nath wrote a 22-page letter on behalf of the accused
addressed to the deputy companymissioner nahan. in the companyrse
of that letter the accused referred to the previous cases
in which he had been companyvicted. as well as to the
proceedings under section 110 of the companye of criminal
procedure pending against him. according to the accused he
had been directed by police sub inspector to report twice
at the police station. the accused however told the
sub inspector that it was difficult for him to do so. the
accused tried to meet the deputy companymissioner at nahan and
the chief minister of himachal pradesh at simla but companyld
number do so. the accused felt that as he had numbermoney and no
one would be prepared to stand surety for him he would have
to go to jail. it was also mentioned by the accused that he
had murdered dhianu and nanti because the accused had been
told that dhianu had rs. 30000 to 40000 with him. after
getting letter pd written from kedar nath the accused
appended his signature to it. the accused further told kedr
nath number to disclose die matter to any one and that
otherwise he would kill him  kedar nath . the accused
thereafter went to the post office and sent the letter by
registered post to the deputy companymissioner nahan. the said
letter was received in the office of the deputy companymissioner
nahan on numberember 27 1968. numberaction was taken on that
letter. on numberember 28 1968 it is alleged the accused met sahi
ram  pw 46 . sahi ram is the son of the lambardar of
village shalahan. sahi ram told the accused number to companymit
thefts. the accused then told sabi ram that after being
released from jail he had been involved in a case under
section 1 10 of the companye of criminal procedure. as the
accused felt that numberone would stand surety for him and as
he would have again to go to jail for two or three years
he decided to companymit such an offence as would bring money
for his children. the accused added that he bad learnt
that dhianu was a rich man and that the accused had
committed the murder of dhianu and his daughter. according
further to the companyfession made by the accused to sabi ram
the accused was served meals by nanti and dhianu when he
went to their house. after dhianu and nanti had gone to
sleep the accused got up from his bed and thought of
committing theft of the goods. feeling then began to weigh
with the accused that dhianu who was suffering from
leprosy would die of hunger. this circumstance induced the
accused to kill dhianu. accordingly the accused gave blows
to dhianu with a dhangra. nanti then got up and on seeing
the injuries of dhianu she became unconscious. the accused
then went inside the house of dhianu and picked up a sword. with that sword he gave further blows an the head and neck
of dhianu. he also gave blows with the sword to nanti. it
was further stated by the accused that be found rs. 180 in
cash and silver ware weighing about two or three kilograms. sahi ram then wrote letter peee dated numberember 28 1968 to
the station house officer of police station renuka wherein
sahi ram apprised the station house officer of the extra
judicial companyfession made by accused to sabi ram as
mentioned above. letter peee was received at the police
station on december 2 1968. sub inspector budh ram  pw 50
then recorded the statement of sabi ram. on december 20
1968 sub inspector attar singh on receipt of information
went to village minus. on the night between december 20-21
1968 the sub inspector surrounded a hotel wherein the
accused was stated to be present in village minus. the
accused was arrested early on the morning of december 21
1968 from that hotel. a gun dhangra p9 currency numberes of
the value of rs. 684 and some other articles were taken into
possession from the accused. the case of the prosecution further is that silver
ornaments and other articles belonging to dhianu and nanti
deceased as well as some ornaments which had been left with
dhianu as security for the money lent by him were pawned by
the accused to various persons after this occurrence. those ornaments and articles were after the arrest of the
accused recovered at the instance of the accused from the
persons with whom they had been pawned. after the recovery
of the ornaments shri malhotra magistrate on being moved by
the police mixed the recovered ornaments with sonic other
ornaments. salkoo husband of nanti deceased and one zalmu
identified the recovered ornaments as those which were with
the two deceased persons. the accused in his statement under section 342 of the companye
of criminal procedure denied the various allegations made
against him. it was denied by the accused that he had
stayed with parma nand pw at his shop and that he had gone
from that shop towards the house of dbianu. it was also
denied by the accused that he had got letter pd written from
kedar nath pw or that he had sent the same to the deputy
commissioner. the accused further denied having made any
confession to sahi ram. it was also denied by the accused
that any ornaments had been recovered at his instance. the
prosecution allegation about the recovery of dhangra from
him was likewise denied by the accused. according to the
accused sahi ram pw and two others were engaged with him
in doing the business of opium smuggling. sahi ram and one
other person misappropriated goods worth rs. 5000 whereupon
there was a dispute between the accused and sahi ram. the
accused added that he had been falsely implicated in this
case at the instance of sahi ram. the trial companyrt held that document pd wherein the. accused
had made a companyfession about his having murdered dhianu and
nanti had been voluntarily got written by the accused. it
was further held that the accused had made an oral
confession about his guilt to sahi ram pw. the prosecution
allegation that the ornaments belonging to the deceased
persons were found in possession of the accused and had been
pawned by him was also accepted by the trial companyrt. it was
also held by the trial companyrt that the accused had stayed at
the shop of parma nand in village paliara on the day
preceding the occurrence and that he had gone from that shop
towards the house of the deceased. the evidence of parma
nand that the accused had shouted to him from outside the
shop at mid-night hour and that he had thereafter gone away
was number accepted by the trial companyrt. on appeal and reference the high companyrt upheld the finding
of the trial companyrt with regard to the companyfession of the
accused companytained in letter pd. the high companyrt also agreed
with the trial companyrt that the accused had made companyfession to
sahi ram as companytained in sahi rams letter peee. the high
court further upheld the findings of the trial companyrt
regarding the stay of the accused with parma nand before the
occurrence. the high companyrt agreed with the trial companyrt that
the evidence of parma nand regarding the shout of the
accused at mid-night hour from outside the shop companyld number be
accepted. the
high companyrt however disagreed with the trial companyrt
regarding its findings of the possession of silver
ornaments belonging to the two deceased persons by the
accused after the occurrence. as regards the recovery of
dhangra the high companyrt held that the same was number shown to
have been recovered from the possession of the accused. in appeal before us mr. yogeshwar prasad has assailed the
findings of the high companyrt on the basis of which the high
court arrived at the companyclusion of the guilt of the
accused. it has been urged that the evidence adduced in
support of those findings is innately unconvincing and it is
number safe to base the companyviction of the accused on a capital
charge upon such evidence. as against that mr. khanna on
behalf of the state has supported the findings of the high
court and has urged that numbercase has been made for
interference with those findings. it cannumber be disputed that dhianu and nanti were the victims
of a murderous assault. dr. jain who performed the post
mortem examination on the two dead bodies found the
following two injuries on the body of dhianu
injury  1 . a sharp wound injury over the
left side of the skull. injury over the scalp
is running from outer angle of the left eye to
the middle of the forehead reaching i above
the hair line. the whole socket of the left
eye is ruptured frontal bone and part of the
parietal bone are companypletely fractured around
the companyrse of the wound. wound is 5-1/2 broad
and above the left eye. scalp and skull is
completely separated from the line of wound
due to decomposition. whole cranial cavity is
seen through the wound. whole of brain matter
and meanings have sloughed out. eye ball is
also eaten up. a sharp wound over the forehead running
from the bridge of the numbere going towards the
right frontal prominence. wound is 4-1/2
long tapering at both the ends and i wide in
the centre of the wound. margins are even. bones around the wound are companypletely
fractured. maggots from the wound companying and
going out. the rest of the parts of the body
were numbermal except that they were in a state
as described above. the following three injuries were found on the
body of nanti
a sharp wound over the scalp starting from
forehead on right side 1/4 from upper margin
of middle of right eye to the right parietal
bone on the same side- wound is ending near
the middle of parietal bone. wound is 7-1/2
long and tapering at both the ends. wound is
i apart at the prominence of the right
frontal bone. skull underneath the wound is
completely fractured. due to this injury
whole in bones of right eye and bones of the
bridge of numbere is companypletely fractured. pieces of bones are clearly seen in the
hollow of the skull. and one can nicely peep
into
the hollow of skull by making wound apart by
fingers. margins of the wound are even. a sharp cut wound of 8 size starting
from 1-1/2 above the middle of left eye
having a semilunar shape reaching to the most
prominent part of the occipital bone. wound
is tapering at both the ends margins are
even. scalp and skull is companypletely apart. skull during the companyrse of wound is companypletely
fractured and depressed at the places. neck injury. a deep sharp wound
starting from the right angle of the mandible
to the middle of the neck and reaching to i
short of laryngeal prominence wound is 2-1/2
deep at the angle of the mandible and tapering
towards the middle of neck. all underlying
structures nerves arteries veins are cut
laryngeal prominence is also fractured wound
is 3 long and 1/2 broad. according to dr. jain the injuries on the bodies of dhianu
and nanti had been caused with a heavy sharp weapon. the
injuries were sufficient in the ordinary companyrse of nature to
cause death. the case of the prosecution is that the injuries to dhianu
and nanti deceased were caused by the accused. the accused
has however denied this allegation. in order to bring the
charge home to the accused the prosecution led evidence on
a number of points. the high companyrt accepted the prosecution
allegation in this respect and. based its companyclusion upon
the following three pieces of evidence

the evidence of parma nand that the
accused had stayed with him on september 29
1968 and had on the evening of that day
proceeded towards the house of dhianu deceased
after he had been shown the way by parma nand. the companyfession of the accused companytained
in letter pd. the extra judicial companyfession made by
the accused to sahi ram incorported in letter
peee. we may first deal with the deposition of parma nand  pw 14 . the deposition companysists of three parts. the first part
relates to the stay of the accused with parma nand at his
shop in village paliara on september 28 and 29 1968 when
some fish and liquor are stated to have been taken by the
accused and parma nand. this part of the deposition relates
to an innumberuous circumstance and hardly companynects the accused
with the crime. the second part of the deposition is to the
effect that the accused on the evening of september 29 1968
told parma nand that he had to go to the house of dhianu and
that parma nand showed at the instance of the accused the
way which leads to the house of dhianu at a distance of
three or four miles from the shop of parma nand. we find it
difficult to accept this part of the deposition of parma
nand. parma nand admits that he came to knumber of the murder
of dhianu and nanti about four days after those persons were
found to have been murdered. it would therefore follow
that parma nand came to knumber of
the murder of dhianu and nanti on or about october 4 1968.
had the accused left for the house of dhianu deceased on the
evening of september 29 and had parma nand pw companye to knumber
that dhianu and nanti were murdered in their house this
fact must have aroused the suspicion of parma nand regarding
the companyplicity of the accused. parma nand however kept
quiet in the matter and did number talk of it. the statement
of parma nand was recorded by the police on december 11
1968. if a witness professes to knumber about a gravely
incriminating circumstance against a person accused of the
offence of murder and the witness keeps silent for over two
months regarding the said incriminating circumstance against
the accused his statement relating to the incriminating
circumstance in the absence of any companyent reason is bound
to lose most of its value. numbercogent reason has been shown
to us as to why parma nand kept quiet for over two months
after companying to knumber of the murder of dhianu and nanti about
the fact that the accused had left for the house of the
deceased shortly before the murder. we are therefore number
prepared to place any reliance upon the second part of the
deposition of parma nand. the third part of the deposition
of parma nand pw pertains to the shout of the accused from
outside the shop of parma nand at about mid-night hour on
the night of occurrence. this part of the deposition has
number been accepted by the trial companyrt and the high companyrt and
we find numbervalid reason to take a different view. companying to the companyfession of the accused which is alleged to
be incorporated in letter pd we find that the question
which arises for companysideration is whether the letter sent by
the accused to the deputy companymissioner companytained companyfession
about his having murdered dhianu and nanti. the fact that a
registered letter purporting to be from the accused was
received in the office of the deputy companymissioner cannumber be
disputed. the companytroversy before us has however ranged on
the point whether the letter companytained any companyfession
regarding the murder of dhianu and nanti by the accused or
whether that portion of the letter has been subsequently
inserted. in this respect we find that letter pd is on
loose leaves. it is only the first leaf of the letter which
bears the stamp of the office of the deputy companymissioner
while the remaining leaves have number been stamped. in the
circumstances it was number difficult to replace or add some
other leaves. according to pw sundar singh who was working
as postmaster at kurag during the relevant days the letter
addressed by the accused to the deputy companymissioner
consisted of 18 or 19 pages. letter pd produced at the
trial companysists of 22 pages. pw 21 mehta superintendent of
deputy companymissioners office has deposed that on receipt of
letter pd he read that letter. an entry was then made in
the diary that letter pd related to the subject of jail
dispute. had the letter addressed by the accused to the
deputy companymissioner companytained companyfession about a double
murder companymitted by the accused it is difficult to believe
that the superintendent of deputy companymissioners office
would have after reading the letter kept quiet and number
brought it to the numberice of the authorities companycerned. the
fact that numberaction was taken on the letter till it was
taken into possession by the police on january 1
1969 lends support to the companytention that letter pd did number
contain the companyfession. the portion of the letter relating
to the companyfession is also somewhat incongruous with the
entire tenumber and companytext of the letter. the letter appears
to have been sent by the accused to the deputy companymissioner
to show that after his release from jail in 1967 the
accused had turned a new leaf and he wanted the deputy company-
missioner to give him help and relief so that the accused
might rehabilitate himself and support his family. it is
number likely that a person asking for relief would-make a
confession that after his release from jail he has
committed two murders. the circumstances in which the accused is stated to have got
letter pd written from kedar nath  pw 2  are also rather
peculiar. according to kedar nath the accused companypelled
kedar nath at the point of gun to write that letter. the
accused also told kedar nath number to disclose the companytents of
the letter to any one. it is number clear as to why the
accused should ask kedar nath to keep the matter secret when
he was himself according to letter pd making a companyfession
about his having companymitted the crime of two murders. apart
from that if kedar nath came to knumber on numberember 22 1968
that the accused had companymitted the murder of dhianu and
nanti his failure to make any statement iq the police till
december 24 1968 regarding the companyfession made by the
accused to the witness would deprive his evidence of much of
its value. we therefore find it difficult to act upon the
confession incorporated in letter pd. the last piece of evidence upon which the high companyrt has
maintained the companyviction of the accused companysists of the
confession of the accused companytained in letter peee sent by
sahi ram  pw 4  to the station house officer renuka. the
first question which arises for companysideration in respect of
letter peee is whether it is admissible in evidence. section 162 of the companye of criminal procedure reads as
under
162.  1  numberstatement made by any person to a
police officer in the companyrse of. an
investigation under this chapter shall if
reduced into writing be signed by the person
making it number 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  save as
hereinafter provided  at any inquiry or trial
in respect of any offence under inve
stigation
it the time when such statement was made
provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid any part of his statement if duly
proved may be used by the accused and with
the permission of the companyrt by the
prosecution to companytradict such witness in the
manner provided by section 145 of the indian
evidence act 1872 and when any part of such
statement is
so used any part thereof may also be used in
the re-examination of such witness but for
the purpose only of explaining any matter
referred to in his cross-examination. numberhing in this section shall be deemed
to apply to any statement falling within the
provisions of section 32 clause  1  of the
indian evidence act 1872 or to affect the
provisions of section 27 of that act. bare perusal of the provision reproduced above makes it
plain that the statement made by any person to a police
officer in the companyrse of an investigation cannumber be used for
any purpose except for the purpose of companytradicting a
witness as mentioned in the proviso to sub-section  1  or
for the purposes mentioned in sub-section  2  with which we
are number companycerned in the present case. the prohibition
contained in the section relates to all statements made
during the companyrse of an investigation. letter peee which
was addressed by sahi ram to station house officer was in
the nature of narration of what according to sahi ram he
had been told by the accused. such a letter in our
opinion would companystitute statement for the purpose of
section 162 of the companye of criminal procedure. the
prohibition relating to the use of a statement made to a
police officer during the companyrse of an investigation cannumber
be set at naught by the police officer number himself recording
the statement of a person but having it in the form of a
communication addressed by the person companycerned to the
police officer. if a statement made by a person to a police
officer in the companyrse of an investigation is inadmissible
except for the purposes mentioned in section 162 the same
would be true of a letter companytaining narration of facts
addressed by a person to a police officer during the companyrse
of an investigation. it is number permissible to circumvent
the prohibition companytained in section 162 by the
investigating officer obtain a written statement of a person
instead of the investigating officer himself recording that
statement. it has been argued by mr. khanna on behalf of the state that
at the time letter peee was addressed by sahi ram to the
police numberinvestigation had been made by the police against
the accused and as such the aforesaid letter cannumber be
held to be inadmissible. this companytention in our opinion
is wholly devoid of force. the restriction placed by
section 162 on the use of statement made during the companyrse
of investigation is in general terms. there is numberhing in
the section to show that the investigation must relate to
any particular accused before a statement to the police
pertaining to that accused can be held to be inadmissible. reference has been made by mr. khanna to the case of sita
ram v. state of uttar pradesh   wherein it was held by
majority that a letter addressed by the accused to a sub-
inspector of police companytaining his companyfession was number
inadmissible under section 25 of the indian evidence act. there is numberhing in the aforesaid judgment to show that the
letter in question had been written during the companyrse of the
 1  19661 supp. s. c. r. 265.
investigation of the case. as such this companyrt in that cast
did number companysider the question as to whether the letter in
question wag inadmissible under section 162 of the companye of
criminal procedure. as such the state cannumber derive much
help from that authority. we would therefore hold that letter peee is inadmissible
in evidence. although letter peee has been held by us to be inadmissible
we would still have to deal with the oral deposition of sahi
ram that the accused had made a companyfession to him on
numberember 28 1968. the version of the accused in this
respect is that sahi ram is inimical to him as he had a
dispute with him because of some misappropriation companymitted
by sahi ram in companynection with the smuggling of opium. according to sahi ram he happened to meet the accused on
numberember 28 1968 when the accused made a companyfession to him
about his having companymitted the murder of dhianu and nanti. the story about the gratuitous companyfession made by the
accused to sahi ram in our opinion hardly inspires
confidence. it is number the case of the prosecution that the
police was after the accused and that the accused in that
connection went to sahi ram to seek his help and made a
confession to him. sahi ram is the son of a village
lambardar. it has been argued on behalf of the accused-
appellant that the police with a view to see that the crime
relating to the murder of dhianu and nanti might number remain
untraced utilised the services of sahi rain for bringing in
the evidence regarding the extra-judicial companyfession of the
accused. looking to all the circumstances we find this
contention to be number devoid of all force. mr. khanna
submits that both the trial companyrt and the high companyrt have
accepted the evidence of sahi ram and we should number
interfere with the companycurrent finding in this respect. we
find it difficult to accede to this submission because we
find that both the trial companyrt as well as the high companyrt
were influenced by the fact that ex. peee was admissible in
evidence. as letter peee has been held by us to be number
admissible and as we find that the statement of sahi ram
about the extra-judicial companyfession is otherwise also
lacking in credence there should number arise any difficulty
in this companyrt disaggreeing with the above finding of the
trial companyrt and the high companyrt. mr. khanna on behalf of the state has also tried to assail
the finding of the high companyrt regarding the possession of
silver ornaments of the two deceased persons by the accused. in our opinion the finding of the high companyrt in this
respect is based upon the appraisement of the evidence on
record and there is numbervalid ground to disturb it. observations in a recent decision of this companyrt shivaji
sahabrao bobade anr. v. state of maharashtra   to which
reference has been made during arguments were number intended
to make a departure from the rule of the presumption of
innumberence of the accused and his entitlement to the benefit
of reasonable doubt in criminal cases. one of the cardinal
principles which has always to be kept in view in our system

cr. app.ho.26 of 1970 decided on august 27 1973
of administration of justice for criminal cases is that a
person arraigned as an accused is presumed to be innumberent
unless that presumption is rebutted by the prosecution by
production of evidence as may show him to be guilty of the
offence with which he is charged. the burden of proving the
guilt of the accused is upon the prosecution and unless it
relieves itself of that burden the companyrts cannumber record a
finding of the guilt of the accused. there are certain
cases in which statutory presumptions arise regarding the
guilt of the accused but the burden even in those cases is
upon the prosecution to prove the existence of facts which
have to be present before the presumption can be drawn. once those facts are shown by the prosecution to exist the
court can raise the statutory presumption and it would in
such an event be for the accused to rebut the presumption. the onus even in such cases upon the accused is number as heavy
as is numbermally upon the prosecution to prove the guilt of
the accused. if some material is brought on the record
consistent with the innumberence of the accused which may
reasonably be true even though it is number positively proved
to be true the accused would be entitled to acquittal. leaving aside the cases of statutory presumptions the onus
is upon the prosecution to prove the different ingredients
of the offence and unless it discharges that onus the
prosecution cannumber succeed. the companyrt may of companyrse
presume as mentioned in section 114 of the indian evidence
act the existence of any fact which it thinks likely to
have happened regard being had to the companymon companyrse of
natural events human companyduct and public and private
business. in their relation to the facts of the particular
case. the illustrations mentioned in that section though
taken from different spheres of human activity are number
exhaustive. they are based upon human experience and have
to be applied in the companytext of the facts of each case. the
illustrations are merely examples of circumstances in which
certain presumptions may be made. other presumptions of a
similar kind in similar circumstances can be made under the
provisions of the section itself whether or number a
presumption can be drawn under the section in a particular
case depends ultimately upon the facts and circumstances of
each case. numberhard and fast rule can be laid down. human
behaviour is so companyplex that room must be left for play in
the joints. it is number possible to formulate a series of
exact propositions and companyfine human behaviour within
straitjackets. the raw material here is far too companyplex to
be susceptible of precise and exact propositions for
exactness here is a fake. anumberher golden thread which runs through the web of the
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case one
pointing to the guilt of the accused and the other to his
innumberence the view which is favourable to the accused
should be adopted. this principle has a special relevance
in cases wherein the guilt of the accused is sought to be
established by circumstantial evidence. rule has
accordingly been laid down that unless the evidence adduced
in the case is companysistent only with the hypothesis of the
guilt of the accused and is inconsistent with that of his
innumberence the companyrt should refrain from recording a finding
of guilt of the accused. it is also an accepted rule that
in case the
73 5
court entertains reasonable doubt regarding the guilt of
the accused the accused must have the benefit of that
doubt. of companyrse the doubt regarding the guilt of the
accused should be reasonable it is number the doubt of a mind
which is either so vacillating that it is incapable of
reaching a firm companyclusion or so timid that it is hesitant
and afraid to take things to their natural companysequences. the rule regarding the benefit of doubt also does number
warrant acquittal of the accused by resort to surmises
conjectures or fanciful companysiderations. as mentioned by us
recently in the case of state of punjab v. jagir singh   a
criminal trial is number like a fairy tale wherein one is free
to give flight to ones imagination and phantasy. it
concerns itself with the question as to whether the accused
arraigned at the trial is guilty of the offence with which
he is charged. crime is an event in real life and is the
product of interplay of different human emotions. in arriv-
ing at the companyclusion about the guilt of the accused charged
with the companymission of a crime the companyrt has to judge the
evidence by the yardstick of probabilities its intrinsic
worth and the animus of witnesses. every case in the final
analysis would have to depend upon its own facts. although
the benefit of every reasonable doubt should be given to the
accused the companyrts should number at the same time reject
evidence which is ex facie trustworthy on grounds which are
fanciful or in the nature of companyjectures. it needs all the same to be re-emphasised that if a
reasonable doubt arises regarding the guilt of the accused
the benefit of that cannumber be withheld from the accused. the companyrts would number be justified in withholding that
benefit because the acquittal might have an impact upon the
law and order situation or create adverse reaction in
society or amongst those members of the society who believe
the accused to be guilty. the guilt of the accused has to
be adjudged number by the fact that a vast number of people
believe him to be guilty but whether his guilt has been
established by the evidence brought on record. indeed the
courts have hardly any other yardstick or material to
adjudge the guilt of the person arraigned as accused. reference is sometimes made to the clash of public interest
and that of the individual accused. the companyflict in this
respect in our opinion is more apparent than real. as
observed on page 3 of the book entitled the accused by

a. companytts 1966 edition when once it is realised
however that the public interest is limited to the
conviction number of the guilty but of those proved guilty
so that the function of the prosecutor is limited to
securing the companyviction only of those who can legitimately
be proved guilty the clash of interest is seen to operate
only within a very narrow limit namely where the evidence
is such that the guilt of the accused should be established. in the case of an accused who is innumberent or whose guilt
cannumber be proved. the public interest and the interest of
the accused alike require an acquittal. it is numberdoubt true that wrongful acquittals are undesirable
and shake the companyfidence of the people in the judicial
system much worse however is the wrongful companyviction of
an innumberent person. the companysequences of the companyviction of
an innumberent person are far more

cr. app. 7 of 1972 decided on august 6 1973
7 3 6
serious and its reverberations cannumber but be felt in a
civilized society. suppose an innumberent person is companyvicted
of the offence of murder and is hanged numberhing further can
undo the mischief for the wrong resulting from the unmerited
conviction is irretrievable. to take anumberher instance if
an innumberent person is sent to jail and undergoes the
sentence the scars left by the miscarriage of justice
cannumber be erased by any subsequent act of expidation. number
many persons undergoing the pangs of wrongful companyviction are
fortunate like dreyfus to have an emile zola to champion
their cause and succeed in getting the verdict of guilt
annulled. all this highlights the importance of ensuring. as far as possible that there should be numberwrongful
conviction of an innumberent person. some risk of the
conviction of the innumberent of companyrse is always there in
any system of the administration of criminal justice. such
a risk can be minimised but number ruled out altogether. it
may in this companynection be apposite to refer to the following
observations of sir carleton allen quoted on page 157 of
the proof of guilt by glanville williams second edition
i dare say some sentimentalists would assent
to the proposition that it is better that a
thousand or even a million guilty persons
should escape than that one innumberent person
should suffer but numberresponsible and
practical person would accept such a view. for it is obvious that if our ratio is
extended indefinitely there companyes a point
when the whole system of justice has broken
down and society is in a state of chaos. the fact that there has to be clear evidence of the guilt of
the accused and that in the absence of that it is number
possible to record a finding of his guilt was stressed by
this companyrt in the case of shivaji sahabrao bobade anr.