Ramkishan Mithanlal Sharma v. the State of Bombay
that section 167 (2) of the Bombay Police Act XXII
of 1951 saved by clause (b) thereof any right, privilege,
obligation or liability already acquired, accrued or
incurred before such date and by clause ( d) thereof any
investigation, legal proceeding or remedy in respect of
such right, privilege, obligation, liability, penalty,
forfeiture or punishment and that therefore the
investigation which had been made by the police under
the provisions of the City of Bombay Police Act IV of
1902 was saved and did not come within the ban of
section 162 of the Criminal Procedure Code. Both
these contentions are untenable. Section 167 (2) could
only apply to those rights, privileges, obligations or
liabilities already acquired, accrued or in incurred under
the City of Bombay Police Act IV of 1902 before the
date of its repeal. An investigation conducted by the
police under the provisions of that Act would not
( 1) A.I.R. 1 943 Pat. 18. (2) A.LR. 1927 P.C. 242.
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S.C.R. SUPREME COURT REPORTS 915
create or impose any right, privilege, obligation or
liability which could be saved by the provisions of
section 167(2) of the Bombay Police Act XXII of
1951. The investigation which had been conducted
up to the 1st August, 1951, \Vould be governed by
the provisions of City of Bombay Police Act IV
of 1902 and unless there was something in the Bombay
Police Act XXII of 1951 which referred to those
investigations, all the incidents of those investigations
would be governed by the provisions of the repealed
Act and the question as to the admissibility in evidence
of the results of such investigations would also have to
be considered with reference to the provisions of that
Act. Section 162 of the Criminal Procedure Code in
terms applied to the investigations conducted "under
this Chapter'', i.e., Chapter XIV which relates to
information to the police and their powers to investi
gate, whereas section 63 of the City of Bombay Police
Act IV of 1902 specifically referred to the investiga
tions copducted "under this Ac_t", i.e., the City of
Bombay Police Act IV of 1902. Section 162 of the
Criminal Procedure Code therefore applied by reason
of the context and the terms of that verv section to
investigations which had been condu~ted by the
Bombay City Police after the 1st August, 1951, and
would not have a retrospective operation, because the
investigations conducted up to the 1st August, 1951,
by the Bombay City Police would certainly not be
investigations conducted "under this Chapter", ·i.e.,
Chapter XIV of the Criminal Procedure Code. There
is no substance therefore in either of these contentions
and the question as to admissibility in evidence of the
statements made in the course of investigation under
the City of Bombay Police Act IV of 1902 would have
to be considered in the light of the provisions of sec··
tion 63 of that Act and not section 162 of the Criminal
Procedure Code. ·
It may be noted that the test identification parades
in regard to the accused 1 and 2 were all held prior to
the 1st August, 1951, and no question could therefore
arise as to the provisions of section 162 of the Criminal
Procedure Code being applicable to the evidence m
1954
Ramkishan
Mithan/al Sharm~
v.
Th< SttA of
Bombay.
Bhagwati].
1954
Ramkishatt
Mithanlal Sharma
v.
The State of
.Bomba7.
BhagwatiJ.
regard to those parades. The test identification parades
in regard to accused 4 however were held after the 1st
August, 1951, between the 16th January and the 22nd
January, 1952, and it remains to be considered how far
the evidence in regard to those parades was admissible
in evidence having regard to the provisions of section
162 of the Criminal Procedure Code. , There has been a conflict of opm1on between
various High Courts in regard to the admissibility of
evidence in regard to these test identification parade,.
-{ '
The Calcutta High Court and the Allahabad High
Court have taken the view that identification of a per-
son amounts to a statement within section 162 and
that therefore the fact of such identification is not
admissible in evidence. The High Court of Madras
and the Judicial Commissioner's Court at Nagpur have
taken the contrary view.
In Khabiruddin v. Emperor(') the question arose as
to the admissibility of identification of stolen property
during investigation in the presence of police officers
and it was held that section 162 embraced all kinds of
statements made to a police officer in the course of an
investigation, that the evidence of the fact of identifica
tion is nothing but evidence of the statements which
constitute the identification in a compendious and con
cise form and that therefore any identification of stolen
property in the presence of a police officer during
investigation was a statement made to a police officer
during investigation and was therefore within the
scope of section 162. Pointing out by finger or nod
of assent in answer to a question was held as much a
verbal statement as a statement by word of mouth and
no distinction was made between the mental act of the
identifier on the one hand and the communication of
that identification by him to another on the other.
Even the fact of identification by the identifier himself
apart from the communication thereof to another was
considered to be within the ban of section 162.
This decision was commented upon in Surendra
Dinda v. Emperor( 2 ). There also the question arose as ,..._
to the admissibility of the evidence of the sub-inspector 1 ·
(1) A.LR. 1943 Cal. 644. (2) A.LR. r949 Cal. 5r4.
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S.C.R. SUPREME COURT REPORTS 917
<0f police that the witnesses told him that the articles
produced by him were identified by them as their pro
perty and the statements by the witnesses themselves
that they had identified the articles to the sub-inspector.
It was held that the word "identified" had a double
meaning. It meant the fact of actual recognition as
well as the communication of that fact to a third per
'SOn. There was distinction between on the one hand
the actual fact of identification which is a mental act
-011 the part of the person identifying, seeing an object
or person and recognising that the object or person
seen was identical with some particular object or per
son and on the other hand the communication to a
third person of this mental act. The communication
was of course a statement, but the identification by
the identifier could not possibly be a statement. The
Court however proceeded to observe that no distinction
·could be legitimately made between an actual verbal
statement and some action on the part of the identifier
·disclosing the fact of his identification. Both were hit
by section 162. The communication of his own mental
:act of recognition and identification to the police was
what was hit but evidence in the Court subsequently
by the actual identifier himself was not inadmissible
under section 162. The Court further observed that it
was not the actual act or process of seeing or recognis
ing the accused in the presence of the officer which was
.affected by the provisions of the section, it was the
communication of that fact to tlle police officer of which
proof could not be given. It therefore held that the
.accused was entitled to object to the evidence of the
sub-inspector, that the witnesses "identified" the arti
des to him or the evidence of the witnesses when they
said they "identified" the articles in the presence of
the sub-inspector in so far as the latter expression was
taken to mean and include not only that they recognised
the articles as theirs but conveyed the fact of that
recognition to the sub-inspector.
The Allahabad High Court in Daryao Singh v. State( 1)
followed this decision of the Calcutta High Court in
terms without adding any comments of its own.
(1) A.LR. 1952 All. 59·
1954
Ramkishan
Mithanlal Sharma
v.
Th4 State of
Bombay.
Bhagwati].
1954
Ramkishan
Mithanlal Sharma
v.
The Stale of
Bombay.
BhagwatiJ.
918 SUPREME COURT REPORTS (1955]
These decisions of the Calcutta and the Allahabad
High Courts seek to make a distinction between the
mental act of identification and the communication. of
that fact to another person. The mental act of identifi
cation is not hit by section 162 but the communication
thereof to another person either by an oral statement
or even by signs or gestures including the pointing out
by finger or nod of assent m answer to a question put
to the identifier in that behalf would come within the
ban of section 162. Anything which amounts to a com- .
munication of the fact of such i<leQtification by the·
identifier to another person is banned and no evidence
in respect thereof can be given m a Court of law under
section 162.
The High Court of Madras on the other hand in In re
Kshatri Ram Singh(') took the view that any evidence
about the statements made by witnesses at the identifi
cation parades held by the police m the course of
investigation was excluded by section 162, but the fact
that witnesses had identified persons at parades held by
the police might be proved. In coming to this conclu
sion the High Court followed an earlier decision of a
Division . Bench reported m Guruswami T hevan v ..
Emperor('). In that case an objection had been taken·
to the admission of a note of an identification parade
held by the police sub-inspector. It was contended that
the document embodied a record of statements made·
by identifying witnesses to the sub-inspector and as
such was inadmissible under section 162. Mr. Justice·
Wadsworth who delivered the judgment of the Court
observed that the question was not without difficulty,.
for in the nature of things it was probable that when
a witness identifies a person in a parade he does make·
some statement or other as to the purpose for which he·
identifies him and anything said by a witness at an identi-
fication parade held by the investigating officer might
well be considered to come within the purview of section
162. On the other hand the mere act of a witness in pick-.
ing out one individual from a parade was a revelant
circumstance concerning which evidence is admissible
and if the investigating officer made a note of that cir
mmstance which he himself had observed, there was no·
(1) A.LR. 1941 Mad. 675. (2) 1936 M.W.N. 171-
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S.G.Ri , . I SUPREME COURT REPORTS 919
apparent reason why· that note should not be used · in
evidence. If in the course of that note he appends ari
inadmissible record of the statement of the identifying
witnesses presumably any such portion of the note
would have to be excluded from evidence. He applied
that criterion to the document in question and the bare
note of the personnel of the parade, the names of the
witnesses, the way iµ which the parade was arranged
and the .numbers of the persons in the parade identified
by each witness were held unobjectionable. What was
excluded was the statement· in regard to the identifica
tion of witnesses of the persons as having been con
cerned in the murder cases which were the subject
matter of investigation. A distinction was thus made
between the physical fact of identification and the
statement made qy the identifier as regards the
persons identified having been concerned 111 the
offence.
The Judicial Commissioner's Court at Nagpur 111
Ramadhin Brahmin v. Emperor( 1 ) expressed a similar
opinion that evidence of police officers who give evi
dence with regard to the identification parades which
were held and who depose to certain of the accused
having been identified by prosecution witnesses 111 an
identification parade was not inadmissible under section
162 as their evidence does not relate to any statement
made to the police but is a simple exposition of a fact
or circumstances witnessed by themselves. Here also
a distinction appears to have been made between the
physical . fact of identification sought to be ·proved by
the evidence of the police officers and the statements
made by the identifier to the police .
In order to resolve this conflict of opinion one has to
exam111e the purpose of test identification parades.
These parades are held by the police in the course of
their investigation for the purpose of enabling witnesses
to identify the properties which are the subject-matter
of the offence or to identify the persons .who are con
cerned in the offence. They are not held merely for the.
purpose of identifying property or persons irrespective
of their connection with the offence. Whether the police
(1) A.I.R. 1929 Nag. 36.
3-89 S. C. India/59
·1954
Bamkishan
-Mitha~lal Shanna
"' The State 71f
. Bombqv.
!Jhagwati J.
1954
RizmkUhan
·Mithanlal Sh"a;ma
v.
The S att of
Bombay.
BhagwatiJ.
officers interrogate the identifying witnesses or the
Parrch witnesses who are procured by the police ·do so,
the identifying witnesses are explained the purpose of
holding these parades and are asked to identify the
properties which are the subject·matter of the offence
or the persons who are concerned in the offence. If this
background is kept in view it is clear that the process
of identification by the identifying witnesses involves
the statement by the identifying witnesses that the
particular properties identified were the ·subject-matter
of the offence or the persons identified were concerned
in the offence. This statement may be express or im
plied. Tl>e identifier may point out by his finger or
touch the property or the person identified, may either
nod his head or give his assent in answer to a question
addressed to him in that behalf or may make signs or
gestures which are tantamount to saying that the par
ticular property identified was the subject-matter of
the offence or the person identified was concerned in the
offence. All these statements express or implied includ
ing the signs and gestures would amount tO a commu
nication of the fact of identification by the identifier to
another person. The distinction therefore which has
been made by the Calcutta and the Allahabad High
Courts between the mental act of identification and the
communication thereof by the identifier to another per
son is quite logical and such communications are tant
amount to statements made by the identifiers to a
police officer in the course of investigation and come
within the ban of section 162. The physical fact ·of
identification has thus no separate existence apart from
the statement involved in the very process of identifi
cation and in so far as a police officer seeks to prove
the fact of such identification such evidence of his
would attract the operation of section 162 and would
be inadmissible in evidence, the only exception being
the evidence sought to be given by the identifier him
self in regard to his mental act of identification which
he would be entitled to give by way of corroboration of
his identification of the accused at the trial. We there
fore approve of the view taken by the Calcutta and
Allahabad High Courts in preference to the view taken
,,
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S.C.R. SUPREME COURT REPORTS 921
by the Madras High Court and the Judicial Commis
sioner's Court at Nagpur.
The learned Attorney-General however sought to
make a distinction between the statements made to the
police officers and the statements made to the Panch
witnesses called by the police officers when conducting
the test identification parades. He urged that a state
ment made to the police officers would be within the
ban of section 162. But if in spite of the test identifi
cation parades having been arranged by the police
Panch witnesses were called by the police and they ex
plained to the identifying witnesses the purpose of the
parades and the identification was made by the wit
nesses before them though in the presence of the police
officers, the Panch witnesses could certainly depose to
the fact of identification as also the statement made by
the identifying witnesses to them without attracting
the operation of section 162. He further urged that in
such a case the identification would amount to a state
ment to the Panch witnesses even though the police offi
cers were present at the time and it would be a question
of fact whether the statement was made to the Panch
witnesses or to the police officers which question would
have to be determined having regard to the circum
stances of each case. [Vide Abdul Kader v. Emperor(1)
and Rao Shiv Bahadur Singh v. State of Vindhya
Pradesh (2 ) ] • He contended that the test identification
parades were held in the present case in the presence
of the Panch witnesses who were called by the police
for witnessing the same, that the Panch witnesses
explained to each identifying witness the purpose of
holding the parade, that the identification took place in
the presence of the Panch witnesses who noted down the
result of the identification, that Panchnamas were pre
pared by the police after the identification was held
and were signed by the Panch witnesses and that there
fore the identification of the accused by the identifying
witnesses amounted to statements made by the identi
fiers to the Panch witnesses and not to the police and
evidence in that behalf given by the Panch witnesses
was therefore admissible in evidence.
(r) A.LR. 1946 Cal. 452. (2) [1 954] s.a.R. 1098.
T'
1954
Ramkishan
Mithanlal Sharma
v.
The State ef
Bombqy.
Bhagwati •
1.954
Ra'!lkishr;in
.¥_ith~nlal Sharmq.
Y· T ht State af.
: Bombay.
BhagwatiJ.
922 SUPREME COURT REPORTS .[1955]
This argument would have availed the learned
Attorney-General if after arranging the test identifi
cation parade the police had completely obliterated
themselves and the . Panch witnesses were left solely in
charge of the parade. The police officers would certainly
arrange the parade, would call the persons who were
going to be mixed up with the accused in the course of
the parade and would also call the Panch witnesses
who were to conduct the parade. But once the Panch
witnesses were called for the purpose the whole of 'the
process of identification should be under the exclusive
direction and supervision of the Panch witnesses. If the
Panch witnesses thereafter explained the purpose of
the parade to the identifying witnesses and the process
of identification was carried out under their exclusive
direction and supervision, the statements involved in
the process of identification would be statements made
by the identifiers to the Panch witnesses and would be
outside the purview of section 162. · In the case of the
identification parades in the present case however the
police officers were present all throughout the process
of identification an_d the Panch witnesses appear only
to have been brought in there for the purpose of prov
ing that the requirements of law in the matter of
holding the identification parades were fully satisfied;
Not only were the police officers present when the
identifying witnesses were brought into the room one
after the other and identified the accused, they also
prepared the Panchnama, read out and explained the
contents thereof to the Panch witnesses, and also
attested the signatures of the Panch witnesses which
were appended by them at the foot of the Panchnama.
The whole of the identification parades were thus
directed and supervised by the police officers and the
Panch witnesses took a minor part in the same and
were there only for the purpose of guaranteeing that.
the requirements of the law in regard to the holding of
the identification parades were satisfied. We feel very
great reluctance in holding under these circumstances
that the statements, if any, involved in the process of
identification were statements niade bv the indentifiers
to the Panch witnesses and not to th~ police officers as
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S.C.R.·· SUPREME COURT REPORTS; 923-
otherwise it will be easy for the police . · officers to
circumvent the provisions of section 162 by formally
asking the Panch witnesses to be present and contend
ing that the statements, if any, made by the identifiers
were to the Panch witnesses and not to themselves. We
are therefore of the opinion that the test identification
parades in regard to the accused 4 which were held
between the 16th January, and the 22nd January, 1952,
attracted the operation of section 162 and the evidence
of identification at those parades was inadmissible
against accused 4.
The question as to the admission of evidence inadmis
sible under section 27 of the Indian Evidence Act
really lies within a narrow compass. The coritention
in this behalf was based on the evidence of the Investi
gating Officer, Hujur Ahmed Khan, that on the 16th
May, 1951, the accused 1 made a certain statement in
consequence of which he took accused 1 and 2 to Itawa
and leaving the accused 2 :there the party proceeded to
Bhagwasi with the accused 1 and his further evidence
that the accused 1 there pointed out Baliram who at
the instance of accused 1 dug out from a mud house a
tin box containing three revolvers and two tins contain
ing live cartridges. Exception was taken to the expres
sions "in consequence of a certain statement made by
accused 1" and "at the instance of accused 1"
which it was argued canie within the . ban of section
27. Section 27 of the I11dian Evidence Act nins as
under:-
"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." ·
Section 27 is ah exception to· the rules enacted m
sections 25 and 26 of the · · Act which provide that no
confession made to a ·police officer · shall be proved as
against a person accused of an offence ·. and that · nb
·confession made by any person- whilst · he is in the
rnstody of a police officer,· unless it be made· in the
immediate presence of a Magistrate,. shall -be ·proved' as
1954
RanikisMn .•.
Mithanlal Sharma
v.
The Stat• of
Bombay.
BhagwatiJ;
Ramkishan
Miliianlal Sharma
v.
Thi State of
Bombay.
BhagwaJ.iJ.
against such person. Where however any fact is dis
covered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, that part of the information as relates distinctly
to the fact thereby discovered can be proved whether
it amounts to a c9nfession or not. The expression
"whether it amounts to a confession or not" has been
used in order to emphasise · the position that even
though it may amount to a confession that much infor
mation as relates distinctly to the fact thereby dis
covered can be proved against the accused. The section
seems to be based on the view that if a fact is actually
discovered in consequence of information given some
guarantee is afforded thereby that the information was
true and accordingly can be safely allowed to be given
in evidence. But clearly the extent of the information
admissible must depend on the exact nature of the fact
discovered to which such information is required to
relate. [ Kottaya v. Emperor (') ].
On a bare reading of the terms of the section it
appears that what is allowed to be proved is the infor
mation or such part thereof as relates distinctlv to the
fact thereby discovered. The information would consist
of a statement made by the accused to the police officer
and the police officer is obviously precluded from prov
ing the information or part thereof unless it comes
within the four corners ·of the section. If the police
officer wants to prove the information or a part thereof,
the Court would have to consider whether it relates
distinctly to the fact thereby discovered and allow the
proof thereof only if that condition was satisfied. If
however the police officer does not want to prove the
information or any part thereof, section 27 does ·not
come into operation at all. \Vhat was stated by the
Investigation Officer, Hujur Ahmed Khan, in the present
.case was that certain information was supplied to him
by the accused 1 in consequence of which he took
certain steps. He did not seek to prove that informa
tion or any part thereof in the evidence which he gave
before the Court. Even when he said that Baliram
dug out the tin box from the mud floor ·of a house at
(•) A.LR. 1947 P.C. 67.
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S.C.R. SUPREME COURT REPORTS 925
the instance of the accused 1 he did not seek to prove
what that information was. The operation of section 27
was therefore not attracted and prima f acie there was
nothing to prevent that evidence being admitted
against the accused 1. Reliance was however placed
on an unreported judgment of Chagla C.J. and
Gajendragadkar J. delivered on the 11th January, 1950,
in Criminal Appeals No. 454 of 1949 and No. 464 of
1949 with revisional application No. 952 of 1949 in the
case of Rex v. Gokulchand Dwarkadas Morarka No. 1.
An exception was there taken to the statement
of the police officer that in consequence of certain
statements made by the accused 1 and 2 in that case
he discovered the missing pages of the Bombay Sama
char of the 23rd April, 1948, and it was contended that
that statement was inadmissible in evidence. The
question that really arose for the consideration of the
Court there was whether the joint statement attributed
to the accused 1 and 2 in that case was admissible
without specifying what statement was made by a
particular accused which led to the discovery of the
relevant fact and it was rightly held that a joint state
ment by more than one accused was not contemplated
by section 27 and the evidence of Mistry, the police
officer, in that behalf should therefore have been
excluded. An argument was however addressed by the
learned Advocate-General who appeared for the State
there that Mistry had not attempted to prove what
statement the accused had made and all that he said
was that in consequence of statements made by them
a discovery was made. The learned Judges dealt with
that argument as under :-
"In our op1mon, this is a roundabout and objec
tionable way of attempting to prove the statements
made by the accused without actually proving
them. When the police officer speaks of "in conse
quence of a statement made by an accused a discovery
was made'', he involves the accused in the discovery.
Whether he gives evidence as to the actual words used
by the accused or not, the connection between the
. statement made by the accused and the discovery of
the relevant fact is clearly hinted at. In our opinion,
1954
Ramkishan
Mithanlal Sharma
v.
The State
·Bombay.
BhagwatiJ.
1954
Ramkishan
Mithanlal Shaim4
V•
The. Slate of
./Jombaj.
IJhagwqtiJ.
therefore, evidence cannot be· given of any statement
made "by accused which results in the discovery of a
fact unless it satisfies the conditions laid down under'
section 27 and this would be so even if the actual
statement is not attempted to be proved by the pro
secution. Even if the statement is not proved, the
statement must be such· as can be proved under
section 27."
The learned Judges then .proceeded to consider the
following observations of Rankin C.). in Durlav
Namasudra v. Emperor(') :
"There seems to me to be nothing in section 24 or
25 to prevent evidence being given: 'In consequence
of something said by the accused I went to such and
such a place and there found the body of the deceased.'
In cases under section 27 . the witness may go further
and give the relevant part ?f the confession.''
The learned Judges expressed their inability to agree
with this view of the law observing that Rankin C.f.
_was really dealing academically with the various sec
tions of the Indian Evidence Act and he was not called
upon to decide this point. With the utmost respect
the learned Judges of the Bombay High Court com
mitted the same error which they thought Rankin C.J.
had committed, because immediately thereafter they
observed:-
"We would also like to add that, in the circum
stances of this case, this discussion is somewhat
academic, because even if we accept the contention of
the Advocate-General and hold that the statement of
·the investigating officer is admissible, it cannot, pos
sibly help the prosecution case very much."
What they were considering was the case of a joint
statement made by the accused 1 and 2 in that case
and these observations made by them expressing their
inability to agree with Rankin C.J.'s view of the law
. were clearly obiter.
· The evidence of the police officer would no doubt go
to show that the accused knew of the existence of the
:fact discovered in consequence of information given by
. (1) (1931)·!.L.R. 59 Cal. 1040, 1045.
•' 1 .
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S;C.R. SUPREME COURT REPORTS. 927
him. But that would not necessarily show his direct
-connection with the offence. It would merely be a link
in the chain of evidence which taken along with other
pieces of evidence might go to establish his connection
therewith. This circumstance would therefore be quite
innocuous and e~idence could certainly be given of that
circumstance without attracting the operation of sec
tion 27.
If it .were necessary to do so we would prefer to
accept the view of Rankin C.J. to the one expressed
by the learned Judges of the Bombay High Court.
This question as regards the inadmissibility of evidence
under section 27 of the Indian Evidence Act must
therefore be answered against accused 1.
Turning now to the misdirections and non-directions
:Such as to vitiate the verdict of the jury, the main
misdirection which was pointed out by the learned
·counsel for all the accused before us was in regard to
the question whether four or five persons were con
·cerned in the commission of the offence. Particular
exception was taken to paragraph 59 of the learned
Judg~'s charge to the jury :-
"Brightling, Baburao R~je, Miss Vida Palmer,
Mrs. Paterson and witness Sarkari, if you were to accept
his evidence here on this part of the case, were all defi
nite 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 more2 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 td
~sey. Consider this _qm;stion ca,refully. and then if
you find after scrutiny of this evidence tl1at there ·were
at least five men conjointly concerned then only sec
tion 395 would apply. That .. briefly . was the evidence
so far as the question as to the number of men is
c_oncerned."
t ' .::i Our ·attention was drawn to the evidence of. tl1ese
several. witnesses •and it was pointed out· that far from
Ramkishan·
Mithanlal 'Sharma.
v.
The State of'
Bombay.
Bhaf;watiJ.
1 954
Ramldshan
Milhanlal Sharma
v.
The State of
Bombay.
Bhagwati].
their being definite that there were five or more men
concerned in the commission of the offence there was
evidence to show that only two persons were occupy
ing the front seats and two persons were occupying the
rear seats in the taxi which brought the number of
persons to four and not five as contended by the pm
secution. Exception was also taken to the manner in
which the expression "piling into the taxi from the rear
door of the taxi on the Bank side" was sought to be
interpreted by the learned Judge, thus belittling the
significance of the evidence of Major Casey that when
the taxi went past him he saw two persons in the front
seats and two persons in the rear seats of the taxi. It
was further pointed out that according to the evidence
of Miss Vida Palmer and Mrs. Paterson there were only
five or six persons there in all. Their evidence did not
definitely say that these five persons were the persons
concerned in the commission of the offence and that
some of them might as well have been passers-by or
Baburao Raje or Sarvarkhan, who happened to be
present there at the scene of the occurrence and were
certainly not concerned in the commission of the
offence. It was also pointed out that Holmes, the
sub-manager of the Bank, who witnessed the occurrence
from behind the double glasses of the windows was not
in a position to know how many persons actually took
part in the affair and was also not in a position to see
how many persons had got into the taxi. We have
carefully considered these criticisms of the evidence of
ihe several witnesses but are unable to come to the
conclusion that there was any misdirection on the part
of the learned Judge in his summing up to the jury.
The evidence of · each of these witnesses was discussed
by the learned Judge and the main defects and con
tradictions in their evidence were clearly pointed out
by him to the jury. The actual words used by him
in the paragraph in question were that the several
witnesses were all definite that there were five ·or
more men surrounding the taxi and concerned m
the attack and on the evidence as a whole we do not
·see any exception to the correctness of that statement.
T-he explanation which was given of the expression
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S.C.R. SUPREME COURT REPORTS 929
"piling into the taxi from the rear door of the taxi on
the Bank side" was also unobjectionable. The. words
"piling into the taxi" could certainly be appropriate
when describing the getting into the taxi of "some
other persons" and that expression certainly was
capable of being understood to mean that more than
one person was trying to get into the taxi from its rear
door on the Bank side. All these points were clearly
put by the learned Judge to the jury and we are of the
opinion that there was no misdirection at all in that
part of the learned Judge's summing up to the jury. It
was strictly within the province of the jury on the evid
ence as it was summed up by the learned Judge to
them on this aspect of the question to come to the
conclusion whether four or five persons were concerned
in the commission of the offence and they brought in a
unanimous verdict of guilty under section 395 of the
Indian Penal Code.
The other misdirections which were sought to be
pointed out by the learned counsel for the accused 1
and 2 were minor misdirections, if any, and need not
detain us, as we are clearly of the opinion that even
though those misdirections were there they were not
such as to vitiate the verdict of the jury. We must
however advert to the serious misdirection which it
was contended was apparent on the face of the learned
Judge's charge to the jury and which was the result of
the learned Judge's not bringing into prominence the
various points which could be urged in favour of the
accused. It was contended that the learned Judge
merely reiterated in various places the story of the
prosecution and did not point out the weaknesses or
the defects in that story, that he did not advert to the
various criticisms which were levelled against the story
of the prosecution by the counsel for the defence, that
he did not point out to the jury the improbabilities of
the prosecution story or the incredibility of the prosecu
tion witnesses in regard to the salient features of the
prosecution case, that he did not draw the pointed
attention of the jury to the infirmities attaching to ·the
prosecution evidence in regard to the test identification
parades and that the learned Judge's summing up to
1954
Ramkishan
Mithanlal Sharma
v.
The Stoteof
Bombay.
Bhagwati ].
1954
Ramkishati.
.Mithanlal Sharma
"" The siate.ef..:
.Bombay.
Bhagwali·J·
930~ SUPREME COURT REPORTS" [l955J.
the jury wa' on ·the whole unfair :ind prejudicial to ·the
accused.
Section 297 of the Criminal Procedure Code lays
down that i11 cases tried by jury, when the case for the
defence and the prosecutor's reply (if any) are ·con
cluded, the Court shall proceed to charge the jury,
summing up the evidence for the prosecution and
defence, and laying down the law by which the jury
are to be guided. The Judge lays down the law and
directs the jury on questions of law. So far as the facts
are concerned however thev are within the exclusive
province of the jury. But ~ven there the Judge has to
sum up the evidence for the prosecution and defence.
Summing up does not mean that the Judge should give
mere! y a summary of the ·evidence. He must marshall
the evidence so as to bring out the lights and the
shades, the probabilities and the improbabilities so as
to give proper assistance to the jury who are required
to decide which view of the facts is true. Vide Ilu v.
Emperor('). The Judge should give the jury the help
and guidance which they are entitled to expect from
the Judge and which it is his duty to give. The charge
should not consist of a long rambling repetition of the
evidence, without any attempt to marshal! the facts
under appropriate heads, or to assist the jury to sift
and weigh the evidence so that they will be in a posi
tion to understand which are the really important
parts of the evidence and which are of secondary
importance. It is necessary in every ·criminal case for
the Judge carefully, properly and efficiently to charge
the jury and he should not go into unnecessary details
with regard to such aspects of the case which are really
of very little importance. Vide · Nabi Khan . v.
Emperor(2). It has been observed by ·the Privy Council
however in Arnold v. King-Emperor("), that-
"A charge to a jury must be read as a whole: If
there are salient propositions of law fo it, these wiLI,
of course, be the subje.ct of separate analysis. But in a
protracted narrative of fact the determination of which
is ultimately left to the· jury, it must needs be that the
• (1) ·,\.i:R. 1g34 Cal. 847. . .. (3) (f!J<4FI.L.:R: 4' Cal. 1023. ·:
•:-.--. r2yA.~·.R.· .1936 Cal. 1'86. . . ·_,··-;:.
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S.C.R. ,SUPREME COURT REPORTS . . 931
view of the Judge may not coincide with the view .of
others who_ look upon the whole proceedings in black
type. It would, however, not be in accordance with
usual or good practice to treat such cases as cases of
misdirection, if, upon the general view taken, the case
has been fairly left within the jury's province. But in
any case in the region of fact their Lordships of the
Judicial Comrµittee would not interfere unless some
thing gross amounting to a complete misdescription of
the whole bearing of the evidence has occurred."
Bearing these principles in mind we have got to
scrutinise how far these criticisms levelled against the
learned Judge's charge to the jury are of any avail.
We have been taken into the evidence of the several
witnesses in great detail by the learned counsel for the
accused but. we are unable to .come to the conclusion
that there is any serious misdirection such as to vitiate
the verdict of the jury or that there has been a failure
of. justice. The learned Judge's charge to- the jury has
been scrupulously fair and he has in several places
brought out the points which militate against the stmy
of the prosecution and support the defence version.
He has been at pains to point out_ the various defects
and contradictions in the evidence of the prosecution
witnesses and has fairly put it to the jury to consider
whether in view of the same they would accept the
testimony of the several witnesses. He has marshalled
the evidence against each of the accused separately and
has also pointed out in their proper places the criticisms
which have been levelled against the evidence of the
prosecution witnesses in regard to each of the accused.
Apart from the general observations which he made in
regard to the scrutiny of the evidence of the test
identification parades he has also in appropriate places
reiterated the warning in regard to that evidence and
has put the jury wise to the whole position in regard to
such evidence. On reading the charge as a whole we are
of · the opinion that there is nothing in the learned
Judge's charge to the jury which would, to use the
words of their Lordships of the Privy Council, "amount
to a complete misdescription of the whole bearing of
the evidence''. . or that "there is any failure ·of justice."
· Ramkishan
Mithanlal . -Sharma
.v.
The' State of
Bombay.
BkagwatiJ.
1954
Ramkishan
.Milhanlal Shtllma
v.
The State of
Bombay.
J:lhagwati ].
We are unable to agree with the submission made by
the learned counsel for the accused before us that the
charge was grossly unfair or contained any serious
misdirection or non-direction such as to vitiate the
verdict of the jury.
The result therefore 1s that so far as the verdict of
the jury against accused 1 and 2 is concerned the same
was not vitiated either by the admission of inadmissible
evidence or by any misdirection or non-direction. The
convictions of these accused and the sentences passed
upon them by the learned Sessions Judge will therefor.e
be confirmed.
As regards accused 4 however there has been an error
of law in admitting evidence of the test identification
parades in regard to him which we have held was
inadmissible under section 162 of the Criminal Proce
dure Code. The admission of such inadmissible evidence
would amount to a misdirection in the learned Judge's
charge to the jury in regard to that accused and it" is
necessary therefore to consider what would be the
effect of the admission of such inadmissible evidence so
far as that accused is concerned.
Learned counsel for the accused relied upon the
observations in Kabirttddin v. Emperor( 1 ), that it was
impossible to ascertain what was the effect of this
evidence on the minds of the jury and that it was also
impossible to say that this inadmissible evidence did
not have considerable effect on the jury and their
verdict. He therefore urged that the verdict should
be set aside and the case remanded for retrial. A later
decision of the Calcutta High Court reported in Surendra
Dinda v. Emperor('), however, took the view that every
breach of section 162 would not vitiate a trial. Recep
tion of evidence inadmissible under Section 162 was not
necessarily fatal and in an appeal the Court had to see
whether the reception influenced the mind of the jury
so seriously as to lead them to a conclusion which
might have been different but for its reception. It
must always be a question whether prejudice had been
caused in such cases, and, if not, whether the materials
(1) A.I.R. 1943 Cal. 644, 646. {2) A.I.R. 1949 Cal. 514.
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S.C.R. SUPREME COURT REPORTS 933
left were sufficient within the meaning of section 167
of the Indian Evidence Act. The position in this behalf
has got to be considered with reference to the provisions
of section 537 of the Criminal Procedure Code and
section 167 of the Indian Evidence Act. 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 revlSlon on
account ....... .
( d) 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 provides :
"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 latest pronouncement on this question was the
.decision of the Privy Council in Abdul Rahim v. King
Emperor(1), where it was laid down that where
inadmissible evidence had been admitted in a criminal
case tried with a jury, the High Court on appeal may,
in view of section 167 of the Indian Evidence Act after
excluding such inadmissible evidence, maintain a
conviction, provided that the admissible evidence
remaining was, in the opinion of the Court, sufficient
dearly to establish the guilt of the accused. It was
observed that;-
"Misdirection is not in itself a sufficient ground
to justify interference with the verdict. The High
Court must under the provisions of section 423, sub
section 2 and section 537 of the Criminal Procedure
Code proceed respectively to consider whether the
(1) (1946) L.R. 73 I.A. 77-
1954
RamkishMI
Mithanlal Sharma
v.
The State of
Bombay.
Bhagwati].
·1954
. Romkishan
:.lefitf!a,nlal S~a,rma
. v.
The State of
.· Bf}mbay.
,B_h.agwa# J.
:934 .SUPREME" COURT REPORTS [1955}
verdicr is erroneous owing to the misdirection or whe
ther the misdirection has in fact occasioned a failure of
justice. If the Court so finds, then its duty is to interfere .
In deciding whether there has been in fact a failure of
justice in consequence of a misdirection the High
Court is entitled to take the whole case into considera
tion and determine for itself whether there has been a
failure of justice in the sense that a guilty man has
been acquitted or an innocent one convicted."
This decision was followed by our Court in Mushtaq
Husain v. State of Bombay(') and the Court held th\(t
where a jury has been misdirected and has based its
verdict on assumptions and conjectures, the Supreme
Court may order a retrial or remit the case to the High
Court with a direction that it should consider the
merits of the case in the light of the decision of the
Supreme Court and say whether there has been a
failure of justice as a result of the misdirections, or it
may examine the merits of the case and decide · for
itself whether there has been a failure of justice in th~
case and that in deciding whether there has been in
fact a failure of justice in consequence of a misdirec
tion the Court would be entitled to take the whole case
into consideration. This Court discussed the statute
law in India which in certain circumstances permitted
an appeal against a jury verdict and authorised the
appellate Court to substitute its own verdict on itS
own consideration of the evidence and came to the
conclusion that unless it was established in a case that
there had been a serious misdirection by the Judge in
charging the jury which had occasioned a failure of
justice and had misled the jury in giving its verdict,.
the verdict of the jury could not be set aside.
What has therefore got to be done in cases where.
inadmissible evidence has been admitted and has been
incorporated in the learned Judge's charge to the jury
is to exclude the inadmissible evidence from the record ·
and consider whether the balance of evidence remain"
ing thereafter is sufficient to maintain the conviction.
A question was raised in this connection by the
learned Attorney-General whether having regard to
(1) [1953] S.C.R. 809.
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S.C.R. SUPREME COURT REPORTS 935
the observations of their Lordships of the Privy
Council in Abdul Rahim v. King-Emperor (supra) and
of this Court in Mushtaq Husain v. State of Bombay
(supra) the Court was justified in considering the
balance of evidence for itself and substituting its own
verdict for the verdict of the jury. He relied upon the
observations of the Privy Council approving the deci
sion in Mathews v. Emperor( 1 ) to the effect that the
appellate Court was entitled to examine the evidence
to see whether it justified the verdict pronounced or
whether there had in fact been a failure of justice and
also upon the observations of Mr. Justice Mahajan, as
he then was, to the effect that on the materials on
record no reasonable body of men could have arrived
at the verdict. There is no doubt that these observa
tions occur in the judgments above referred to. But
if these judgments are read as a whole they go to show
that it is for the Court of Appeal to take the whole case
into coruideration and determine for itself whether the
verdict pronounced by the jury was justified or whether
there had been in fact a failure of justice. The merits
of the case had to be examined by the Court of Appeal
and the Court had to decide for itself whether the con
viction could be maintained.
As a matter of fact this very question was mootea.
before the Privy Council in Abdul Rahim v. King
Emperor( 2) as under:
"The controversy which, as the reported cases
show, has long existed in the High Courts of India has
centered round the question whether the appellate
court, in deciding whether there is sufficient ground
for interfering with the verdict of a jury, particularly
where there has been a misdirection by the judge, has
the right and duty to go into the merits of the case for
itself and on .its own consideration of the evidence to
make up its mind whether the verdict was justified or
not. On the one hand, it has been said that the
accused is entitled to have his guilt or innocence decid
ed by the verdict of a jury and that the appellate
court has no right to substitute its own judgment in
place of a verdict by a jury ...... On the other hand, it
(!)A.LR. 1940 L>h. 87. (2) (1946) L.R. 73- I.A. 77. 93.
4-89 S. C. India/59
1934
Ramk:ishan
Mithanlal Shonna
v.
Th£ State of
Bombay.
Bhagwali].
1954
Ramliishan
Mithanlal Sharma
v.
TM State of
Bomba.J.
BhagwatiJ.
i.s argued . that it is impossible for the court to perform
the duty laid on it by· the Code without applying its
own mind to ·the soundness of the verdict." Section 537
of the Criminal Procedure Code was then referred to
as also the two distinct lines of cases supporting these
divergent points of view. The Privy Council then
came to the conclusion that the ratio of cases beginning
with Elahee Buksh(') and ending with Mathews v.
Emperor(
2
) was correct and held that the Court was
entitled to examine the evidence for itself and see
whether it justified the verdict pronounced or whether
there had in fact been a failure of justice. The Court
of Appeal is thus entitled to substitute its own verdict
for the verdict of the jury if on examining the record
for itself it comes to the conclusion that the verdict of
the jury was erroneous or that there has been a failure
of justice in the sense that a guilty man has been
acquitted or an innocent man has been convicted.
It is therefore necessary to consider whether the
balance of evidence on the record after excluding the
evidence of test identification parades in regard to
accused 4 is sufficient to maintain his conviction. We
have been taken through the evidence which was led
·On behalf of the prosecution seeking to prove that
accused 4 was concerned in the commission of the
offence. Baburao Raje was no doubt characterised as
an unreliable witness. But even apart from his
evidence there was evidence of Sarvarkhan which was
sufficient to establish the partlClpation of accused
4 in the offence. His presence at the scene of the
·occurrence and his participation in the offence was
clearly deposed to by Sarvarkhan and we see no reason
in spite of the criticisms levelled against his evidence
by learned counsel to discard his testimony in that
behalf. There is also sufficient evidence of his previous
conduct, his association with the accused 1 and 2, his
activities in Bombay after he arrived there from Delhi
in the beginning of April, 1951, in regard to the renting
-0£ rooms and garage from Tayabali Vaid and attempt
ing to acquire the Vauxhall and the Chevrolet cars
from Haribhau and Ramdas respectively, his
(1) (1866) 5 W.R. Bo. (Cr.). (2) A.LR. 1940 Lah. 7.
.+:
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S.C.R. SUPREME COURT REPORTS 937
wnversations with Lalchand and in particular (1) the
conversation outside the Sandhurst · Road Branch of tht
Central Bank of India Ltd., and (2) the conversation at
Apollo Bunder near the Sea Wall where he, accused 1
and Lalchand had gone after having the hair-cut at the
Taj Mahal Hotel and survey of the site of the Lloyds
Bank by him along with the other accused as deposed
to by Chinoy and Ramesh Chandra Mehta which make
it highly probable that he must have been present at
the scene of the occurrence and must have participated
in the commission of the offence as deposed to by
Sarvarkhan. His subsequent conduct also in leaving
Bombay by the Calcutta Mail bound for Allahabad on
the night of the 20th April, 1951, and the expression
of relief at his finding accused 1 at the last moment
entering his compartment, proved as it is by the
evidence of Gogte contrary to his own assertion and
the assertion of accused 1 that they had left Delhi for
Kanpur on the 18th April, 1951, and had sworn an
affidavit there before the Magistrate, Mr. Tandon, also
support the same conclusion. All this evidence in our
opinion is sufficient to establish · the case of the prosecu
tion against him and we are satisfied that even exclud
ing the evidence of the test identification parades in
regard to him the balance of evidence remaining on
record is enough to maintain his conviction.
The result therefore is that the appeals of all the
accused fail and must stand dismissed.
}AGANNADHADAS J.-I agree that the appeals
should be dismissed. But I consider it necessary to
make a few observations as regards the questions
debated before us in these cases with reference to sec
tion 162 of the Criminal Procedure Code and section 27
of the Indian Evidence Act.
I agree that the objection under section 162 of the
Criminal Procedure Code to the admissibility of evid
ence relating to identification parades does not apply
to those held prior to the 1st August, 1951. The only
identification parade, therefore, objection to the admis
sibility of which requires consideration is that which
relates to the fourth accused held in January, 1952.
1954
Ramkishan
Mithanlal Sharma
v.
The Stateo
Bombay.
Bhagwati].
1954
Ramkishan
Mithanlal Sharma
v.
The State of
Bombay.
Jagannadhadas J.
938 SUPREME COURT REPORTS [1955J
The evidence in this behalf has been given by
(1) the Police-Inspector, P. W. 80, Huzur Ahmed
Mahomedali Khan, (2) and Panch witness, P.W. 113,
Damodar Dayaram, and (3) the two eye-witnesses,
P.W s. 13 and 15, Baburao Parshram Raje and Sarwar
khan. An attempt has been made to argue before us
that while the evidence of the police officer may be
inadmissible, the evidence of the Panch witness as well
as of the identifying witnesses themselves, relating to
the fact of the prior identification, as an item of
corroborative evidence is admissible. I agree that, on
the evidence given in this case, there is no scope for
such differentiation and that the entire evidence relat
ing to the prior identification parades concerning the
4th accused is, in substance, evidence only of the prior
statements of the identifying witnesses to the police
officer and is hence inadmissible. But I wish to guard
myself against being understood as having assented to
the suggestion that in law a differentiation can be made
in such cases between the tl1ree classes of evidence, viz.,
(1) of the police officer, (2) of the Panch witness, and
(3) of the identifying witness himself, in so far as they
speak to a prior identification at a parade held by the
police officer. I am inclined to think that such
differentiation is unsound and inadmissible. The legal
permissibility thereof is a matter of importance because,
though the evidence of prior identification is only
corroborative evidence, still such corroboration is of
considerable value in cases of this kind.
Next as regards the objection to the admissibility of
evidence raised with reference to section 27 of the
Indian Evidence Act, the main items of evidence are
(1) the recovery on the 16th May, 1951, of a tin box
containing three revolvers and two tins containing live
cartridges, and (2) the find on the 19th May, 1951, of a
steel trunk containing Government currency notes of
the value of Rs. 6,47,400 on -the production thereof by
Kamalabai, the wife of the first accused, at a village
Bhagwasi which is her native place. So far as the first
is concerned it is not of much consequence because the
expert evidence did not show that any of the three
bullets which were found at the scene of offence were .
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S.C.R. SUPREME <!.:OURT REPORTS 939
in fact fired from the three revolvers above recovered
and this has been sufficiently indicated in the charge to
the jury. It is the second item that is of importance.
This arises from the fact that some of the currency
notes had identification marks showing that they were
part of the bundle of notes which · formed · the object
of the offence. The evidence in this behalf
is that of the Police Inspector,. P.W. 80, which is as
follows:
"We started from Delhi at about 6 A.M., and
reached Bagwasi at about 2 or 3 P.M., on · the 19th of
May. The 1st accused took us to a certain house where
he pointed out witness Kamala . (wife of the first
accused). At the instance of the 1st accused witness
Kamala brought from somewhere outside that house a
""- steel box .......... When it· was opened I found therein
six big bundles and five smaller bundles of hundred
rupee G. C. Notes."
The portion is this evidence which is objected to is
that this production was "at the instance of the first
accused" seeking thereby to establish the direct con
nection of the first accused with the find of this very
large sum of money which bears indications that it was
.> " out of that lost to the Bank by the offence. It. may be
tl1at when a police officer. speaks to a recovery being
"on the information of" or "at the · instance of" an
accused, section 27 of the Indian Evidence Act is. not in
terms attracted. But what is objected to. on behalf of
the appellants is that when a police officer speaks to a
recovery of this. kind as having been "at the instance
,.. of an accused" or "in consequence of information
' given by an accused" he is being allowed to place on
record not merely the fact of his having received some
information but also the --implication thereof, viz., that
the information is of a character which directly con
nects the accused with the objects recovered. It is
urged tl1at the prosecution cannot be permitted to rely
on such evidence without placing the admissible por
tion of the information on the record. I am inclined
to think that there is considerable force in this objection.
• r ·The information given by an accused in such a situa
tion may be such which, if scrutinised, shows only his
1954
Ramkishan
Mithanlal Sharma
v.
The State of
Bombay.
Jagannadhadas J.
•954 --,
Ramkishan
Mithiznlal Sharma
v;
TMState of
. Bombay.
]qgahnaahadas J
940 SUPREME COURT REPORTS [1955}
remote connection and not direct . connectiori. ·.in sucli
a situation evidence of the ·bare :-fact · of information
having been giveri may be inadmissible and such evid"
ence may cause serious prejudice. I am not, therefore;
prepared to say that the view expressed by Chief
Justice Chagla in the unreported judgment('), placed
before us is erroneous. I would reserve my opinion in
this behalf for fuller consideration. In the present case;
however, even if the evidence of the police officer that
the recovery was at the instance of or in consequence
of information furnished by the first accused is ruled
out, there is still the fact spoken to by him that the
trunk containing the · curre1icy notes was ·produced by
Kamalabai, wife of the first accused, ·at her native place;
This item of evidence is clearly admissible against the
first accused · as indicating his connection. Therefore no
prejudice can be said to have. been caused. It is also
to be noticed that no objection under . section 27 of the
Indian Evidence Act appears to have been taken at the
trial nor is there any indication of it in the grounds of
appeal to the High Court.
In· view of our opinion that th~ evidence of identifi
cation parades relating to the fourth accused was
inadmissible, we were takeri through the rest of the
evidence as against this accused. I agree, on a considerc
ation of that evidence, that this is not a case in which
interference with the verdict even as against the fourth
accused is called for.
Appeals dismissed.
(1) Judg~ent of the .Bombay High Court in. Criminal Appeals Nos. 454
and 464_ of 1949 in the case cf Rex v. Gokulcliand Dwarkadas Morarka No. •.
delivered on the 11th January, 1950.
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