Nishi Kant Jha Vs. State of Bihar
 INSC 304 (2 December 1968)
02/12/1968 MITTER, G.K.
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1969 AIR 422 1969 SCR (1)1033 1969
SCC (1) 347
CITATOR INFO :
F 1969 SC 956 (9) F 1971 SC 44 (42) E&D
1974 SC 699 (8) R 1976 SC1797 (6) E 1978 SC 315 (19) R 1978 SC1096 (7) R 1978
Evidence-Statement made to village Mukhiya
before accused handed over to police-Whether admissible-Statement whether to be
acted upon as a whole.
The appellant was charged for the murder of a
fellow student in a railway compartment. The appellant was noticed washing
blood-stained clothes, and bathing in a river. He was taken to the village
Mukhiya, where he made a statement and signed it. In this statement, he
admitted his presence at the scene of murder but stated that the crime was
committed by someone else, that he was injured by the knife of assailant when
he tried to prevent the crime, and that when the assailant jumped off the train
he 'followed suit being apprehensive of arrest on the charge of murder.
Thereafter, the appellant was handed over to the police. A blood- stained
knife, which could be the cause of the victim's injuries, was found on his
person. Only an incised skin deep injury, which could not account for the
profuse blood- stains on the clothes was found on him. In his statement under
s. 342 C.P.C. the appellant denied all connections with the crime stating that
he was injured at another place in a scuffle--blood-staining his clothes, books
etc. he admitted being taken to the Mukhias house, and stated that he had
signed a blank paper there on being assaulted and threatened, but he denied
making the statement in writing ascribed to him. In appeal to this Court, the
appellant contended that the statement' recorded by the village Mukhiya before
handing over the appellant to the police was inadmissible in evidence; and if
admissible, the statement had to be taken as a whole, and one portion of it
could not be acted upon while rejecting the other.
Dismissing the appeal,
HELD: (i) The contention that the statement
was not voluntarily made and as such could not be admitted in evidence must be
rejected. No suggestion had been made to any one of the persons who had taken
the appellant to the Mukhiya and had been tendered for cross-examination that
any one of them had assaulted the appellant. nor was any suggestion made that
the appellant had been coerced or threatened with dire consequences, if he did
not make the statement. The appellant's own version that he was made to give
his signature on a blank piece of paper cuts at the root of his case that he
made a statement as a result of a threat or assault, for in that case, all that
was necessary was to get his signature. [1041 E-G] (ii) In the circumstances of
this case, the exculpatory part of the statement made before the Mukhiya being
not only inherently improbable but also contradicted by the other evidence was
rightly rejected and the inculpatory part was rightly accepted. [1047 D] Rex v.
Clewes, 4 Car. & P. 221; Hanumant v. 'The State of Madhya Pradesh, 
S.C.R. 1091; Palvinder Kaur v. The State of Punjab,  S.C.R. 94, Emperor
v. Balmakund, I.L.R. 52 All. 1011 and Narain Singh v. The State of Punjab, 
3 S.C.R. 678; referred to.
CRIMINAl APPELLATE JURISDICTION:Criminal
Appeal No. 190 of 1966.
Appeal by special leave from the judgment and
order dated February 4, 1966 of the Patna High Court in Government Appeal No.
14 of 1963.
B.P. Singh and S.N. Prasad, for the
A.S.R. Chari and U.P. Singh, for the
The Judgment of the Court was delivered by
Mitter, J. The main question involved in this appeal is, whether the statement
of the appellant recorded by a village Mukhiya before he was handed over to the
police is admissible in evidence; and if so, whether the court could reject a
part thereof and rely on the remainder along with other evidence adduced to
hold him guilty of an offence he was charged with. The evidence against the
appellant was all circumstantial and there can be no doubt that if the
statement before the Mukhiya is to be left out of consideration, the appellant
cannot be held guilty.
The appellant who was a student of a school
in Jhajha was charged with the murder of a fellow student of the same school
and robbing him of the sum of Rs. 34 On October 12, 1961. The Additional
Sessions Judge, Santal Parganas acquitted the appellant of both the charges
but, in appeal, the High Court found him guilty of the charge of murder and
sentenced him to imprisonment for life. The appellant has come up to this Court
by special leave.
The case of the prosecution leading to the
discovery of the murder and arrest of the appellant is as follows.
When the Barauni-Sealdah passenger reached
Madhupur station at about 3.52 p.m. on 12th October 1961 the dead body of a
person was discovered in the lavatory of a first class compartment of that
train. One Anil Kumar Roy who wanted to board the said compartment at Jasidih
station (in between Jhajha and Madhupur) could not get the door opened and had
to board another compartment. The dead body was found with the neck cut and
besmeared with blood. Blood was coming out from the veins of the neck and there
was plenty of it on the floor of the lavatory. The clothes of the deceased and
his belongings like a comb, handkerchief were also blood-stained and there were
finger marks in the lavatory. Photographs of the deceased were taken and later
the body was identified as that of Jai Prakash Dubey, a student of class X-B
Science of Jhajha High School. The post-mortem report showed that there were no
less than six incised injuries caused by some sharp cutting weapon. The
injuries were homicidal and death was caused by bleeding and shock 1035 The
appellant was noticed by one Ram Kishore Pandey (P.W. 17) washing blood-stained
clothes with soap in the river patro about one hour before sunset on 12th
October 1961. Pandey noticed that the left hand of the appellant was cut and he
questioned the appellant as to how he had got' his clothes bloodstained. The
appellant's version was that when he was coming from the side of Gangamarni a
cow boy had assaulted him and cut his finger with glass and snatched away his
money. Reaching his house in village Saptar, Pandey mentioned this to Shiv
Shankar Pandey, P.W. 25.
Shiv Shankar Pandey learnt from his elder
brother, Basdeo that a murder had been committed in the Barauni train and the
murderer was missing. They suspected that the appellant might be the murderer
and decided to go and search for him. All the three along with Pathal Turi and
one, Ayodhya Turi, two chowkidars went to the bank of that river but could not
find the appellant. There they were told by Jaganath Mahto and Rameshwar Mahto
(P.Ws. 19 and 20) that they had noticed a man with wet clothes asking the way
to Deoghar. Proceeding-further, this group of persons found the appellant about
a mile from Titithapur going behind a bullock cart. On being accosted the
appellant said that he was going to village Roshan to his sister's place and
that he had not committed any murder. The appellant was then wearing a pair of
trousers and a shirt and had with him some books. an exercise book, a chhura
(knife) besides a pair of trousers and a shirt which were both wet. They apprehended
the appellant and took him to village Saptar. They called on the Sarpanch of
the village who directed them to take the appellant to the Mukhiya not making
any enquiry himself The Mukhiya's place in Lorajore was at a distance of about
a mile from Saptar. The party reached there at about 9 O' clock at night and
stayed there for 2 or 3 hours. At about midnight on 12th October 1961 the
Mukhiya took down the statement (Ex. 6) of the appellant and directed the party
to take the appellant to the police station. The party reached Madhupur police
station at about 5 a.m. on October 13, 1961. Brij Bihari Pathak, Sub Inspector
of Police (P.W. 39) seized the articles which the appellant had with him in the
presence of two witnesses and prepared a seizure list.
The articles seized from the accused included
a shirt, a pair of trousers, a leather belt, a pair of shoes, 4 bloodstained
copy books, two books, pages of one being blood-stained. He also prepared an
injury report of the appellant and sent him to a doctor for examination. The
officer in charge of the Railway Police Station Madhupur, Gorakh Prasad Singh
(P.W. 511) proceeded with the investigation, took charge of various articles
found in the compartment of the Barauni passenger, received the post- mortem report,
examined witnesses and sent all the material exhibits to the Chemical Examiner
for examination and report. The report of the Chemical Examiner showed that
among the 1036 articles found with the appellant Nishi Kant Jha and sent up for
examination the following were stained with human blood:
(1) leather belt cutting (2) cuttings of
underwear, trousers and shirt (3) pair of chappal (4) portion of a shoe (5) one
big knife and (6) several books, papers and an exercise book. The report also
showed that sample of blood found on the deceased was of the same group as that
of the appellant.
The appellant pleaded not guilty. Before
taking a note of his statement under s. 342 of the Code of Criminal Procedure,
it will be useful to reproduce his statement Ex. 6 recorded by Mukhiya at
Lorajore before he was handed over to the police. The statement reads:
"I am Nishi Kant Jha, son of Nilkanth
Jha, resident of Baburpur, P.S. Jasidih sub- division Deoghar, District Santhai
To-day 12-10-61 at about 12 midnight,
chowkidars Pathal Turi and Ayodhya Turi of village Saptar and Sheo Shankar
Pandey, Ram Kishore Pandey and Basudeo Pandey of the same village arrested me
and brought me. My statement is that when I boarded the first class compartment
in Barauni passenger at Jhajha, an unknown person was sitting in it when the
train reached near Simultala and when it stopped there, Lal Mohan Sharma,
resident of Deoghar, P.S. Deoghar, district Dumka entered into that
compartment. I had been knowing him from before. When the train stopped at the
Jasidih station and when I went to get down, Lal Mohan Sharma who had boarded
the train at Simultala, did not allow me to get down at the Jasidih station.
When the train moved ahead of Jasidih station, in the meanwhile Lal Mohan Sharma
took that outsider into the lavatory and began to beat him. At this I caught
hold of his hand, as a result of which my left fore-finger got injured with
knife. Thereupon he asked me to be careful.
Then, on being afraid, I sat quietly in that
very compartment. He further said that I should not open the door and window of
the compartment and if would do so I would be inviting death. At that very
time, he killed him. When the train was reaching near Mathurapur, he jumped
down from the running train and fled away. Lal Mohan Sharma fled away. also
jumped down on the other side of Patro river near Madhupur and fled away in
order to save my life, because I apprehended that I would be the only person
who would be arrested. Thereafter, I came to the village Ratu Bahiar lying by
the side of Patro river and afterwards I took my clothes to Patro river and
washed them with a soap.
Mean- 1037 while a bullock cart was going to
Therefore I sat on that very bullock cart and
started for Deoghar. After I had covered about a mile, Pathal Turi, Shanker
Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar and Rameshwar Mahto got
me down from the bullock cart and brought before you. I know their names after
enquiring the same from them." At the end of the statement there was an
"On my understanding my statement, I
affix my signature." The signature appearing thereunder was admitted by
the appellant to be his beating date 12th October 1961. From the said statement
the following emerge:
(1 ) The appellant had boarded a first class
compartment in Barauni passenger at Jhajha already occupied by a person not
known to him.
(2) When the train reached Simultala one Lal
Mohan Sharma, resident of Deoghar entered that compartment (3 ) When the train
proceeded further and stopped at Jasidih station, the appellant wanted to get
down but was prevented from doing so by Lal Mohan.
(4) After the train moved out of Jasidih Lal
Mohan caught hold of the first occupant of the compartment and took him into
the lavatory and started beating him.
(5) The appellant wanted to prevent this and
in trying to catch hold of the assailant's hand he was injured by a knife.
Thereafter he took no further steps to prevent the commission of the crime.
(6) Lal Mohan Sharma threatened him with
death in case he wanted to open the door or the window of the compartment and
killed the stranger.
(7) When the train was reaching Mathurapur
Lal Mohan jumped out of it and ran away.
(8) The appellant also jumped out of the
train after it had crossed the river Patro near Madhupur and fled away to save
his life because he was apprehensive of being arrested as the only person left
in the compartment.
(9) He went to the village Ratu Bahiar near
the river Patro and washed his clothes in the river with a soap.
(10) Thereafter he took a tide in a bullock
cart going to Deoghar but after covering a mile or so he was apprehended by
Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar
and Rameshwar Mahto.
1038 On the face of it the statement goes to
show that the appellant was present in the compartment when the murder was
committed by Lal Mohan Sharma, that he did not know the victim, that the murder
was committed after the train had left Jasidih station, that he himself was
prevented from getting out of the train at Jasidih, that he suffered an injury
on his left fore-finger from the knife of the assailant and that he jumped out
of the train near the river Patro. He did not mention having been accosted by
Ram Kishore Pandey while he was washing his clothes in the river nor did he
make any statement to the effect that he had received the injury as a result of
a scuffle with a cow boy.
At the trial evidence was adduced by the
Headmaster of the school that Jai Prakash Dubey, the victim, was an old student
while the appellant had joined that school in the month of March 1961. They
belonged to the same standard but were not in the same section inasmuch as one
was in the arts section while the other was in the science section. The headmaster
deposed to the fact that both of them used to play football and that no enmity
was known to exist between the two.
In his statement under s. 342 Cr. P.C. the
appellant said that he could not identify the photographs of the victim as
those of Jai Prakash Dubey and that he did not know Jai Prakash Dubey. He did
not board a first class compartment of Barauni passenger at Jhajha, that he did
not jump off the train when it was nearing Madhupur. He admitted having washed
his blood-stained clothes in the river Patro near the village of Ratu Bahiar
and that a person had enquired of him the reason for his clothes being stained
with blood. He did not admit that he had told anyone that while coming from the
side of Gangamarni he had been assaulted by some herdsman and cut his finger
with glass and said that his reply to the query was that he had an altercation
with a herdsman on his asking about the way when the latter wanted to assault
him with a sharp-edged knife and on his catching hold of it he had cut his
He denied having enquired of anybody about
the way leading to Deoghar and he also denied that he was arrested while he was
a mile ahead of village Titithapur following a bullock' cart. He admitted
having held in his hand clothes which had been washed in the river and
blood-stained 'books and copy books, pages of some of the books being blood-
stained. He did not admit that he had with him a knife when he was arrested. He
admitted having been taken to the house of the Mukhiya, Sudama Raut but his version
was that when he reached there they all began to beat him and told him that he
must make a statement as suggested by them. With regard to Ex. 6 his version
was that it was not his statement but that he had been made to put his
signature on a piece of' blank paper which was later made use of as his
statement. He denied that the writing of the 1039 endorsement ascribed to him
was his. His account of the activities. on that day was 'as follows. He had
boarded a third class compartment in Toofan Express on 12th October 1961
intending to pay a visit to his father's sister's daughter at Roshan and
thereafter going to his native place. He had reached Madhupur at about 12.30
p.m. and left for Roshan. He had lost his way after some distance and enquired
of some herdsmen about the way to the village., These herdsmen started to abuse
him for having lost his way.
On his remonstration, a scuffle took place.
At this point of time another herdsman appeared with a lathi which was shining
like glass and wanted to assault him with this. On his catching hold of the
lathi he got his hand cut which was bleeding. His clothes and books also got
stained with blood whereupon the herdsman ran away. He purchased a soap and
went to wash his clothes in Patro river and take his bath.
People who met him there had asked. him about
his injury and he had given them the version just now mentioned.
Thereafter when he was nearing the village,
Roshan a number of persons came and apprehended him on a charge of murder.
They took him to the Mukhiya's house at 8.30
p.m. in the night and kept him there assaulting him with lathis and slaps. The
Mukhiya had asked him to confess his guilt and give a statement and on his
refusing to do so, he was again assaulted and threatened with death. Through fear
he had affixed his signature on a blank paper.
On the evidence the High Court found that the
train had left Jasidih at 3.23 p.m. its next halt being Madhupur where it
reached at 3.52 p.m. The door of a first class compartment was found closed at
Jasidih and could not be opened. In the view of the High Court the murder was
committed in the lavatory of the first class compartment between Jasidih and
Madhupur. On a close scrutiny of the evidence adduced, the High Court found the
following incriminating circumstances against the appellant :-- (a) Only about
two hours after the murder i.e. between 5 to 6 p.m. he was seen washing his
blood-stained ,,clothes on the bank of the river Patro.
(b) At the time of his apprehension by Ram
Kishore Pandey and others he was holding blood-stained exercise books, and
other books some of the pages being blood- stained.
(c) He also had with him at that time a knife
'the length of the blade and the handle of which was about 9".
(d) According to the medical evidence the injuries.
of the victim could have been caused by that knife ,which was in the possession
of the, appellant .... One of the horizontal'. incised inJuries i.e. injury No.
6, was 5" x 2" x'3/4''.
6 Sup. CI/69--15 1040 (e) The left hand of
the respondent was noticed with a cut injury at the bank of the said river. The
marks of other injuries on the body of the appellant were compatible with a
scuffle with the victim in the compartment of the train.
(f) The explanation of the appellant with
regard to the possession of blood-stained clothes and articles and the injury
on his body,was not acceptable.
In the light of the above incriminating
circumstances culled from the evidence, the acceptance of the statement of the
appellant in Ex. 6 that he had travelled together with an unknown person, later
identified as the victim Jai Prakash Dubey in the same compartment would be
conclusive to prove the guilt of the appellant if his further statement in Ex.
6 about the part played by Lal Mohan Sharma be rejected. The appellant had
admitted his presence on the scene of the murder, but it was his version that
the crime was committed by someone else while he himself was a helpless
spectator. When the assailant jumped off the train he followed suit being
apprehensive of arrest on the charge of murdering the unknown person. He had
done so near the river Patro. Some portions of the statement were not found to
be acceptable. It is not possible to believe that if Lal Mohan Sharma wanted to
commit the murder he would prevent the appellant from getting off the train at
Jasidih so as to have a witness who knew his name and address and testify to
his commission of the crime. Lal Mohan Sharma was not in the train at Jhajha
and no details were given about any quarrel between him and the victim which
might lead the former to make the attack on Jai Prakash. Apparently there was
no motive for Lal Mohan Sharma's commission of the crime. Again it is not
possible to believe that Lal Mohan Sharma should not have tried to do away with
the appellant also. The version of the appellant receiving the injury on his
left hand in the railway compartment was also unbelievable. So was his story of
a scuffle with the herdsman and cutting his hand as a result thereof. The cause
for the herdsmen abusing the appellant and his remonstrance followed by an
attack on his person all appear to be imaginary. The only incised injury which
the appellant had suffered was skin deep and it is impossible to accept the
story that the bleeding was so profuse as to have necessitated his washing his
shirt and trousers in the river. Nor does such an injury account for the other
articles like his belt, shoes and books being stained with blood which was
sought to be removed by washing.
The contention urged on behalf of the
appellant that the statement was not voluntarily made and as such could not be
admitted in evidence was rightly rejected by the High Court,. The High.
1041 Court noted that no suggestion had been
made to any one of the persons who had taken the appellant to the Mukhiya and
had been tendered for cross-examination that any of them had assaulted the
appellant nor was any suggestion made that the appellant had been coerced or
threatened with dire consequences if he did not make the statement. The
appellant's own version that he was made to give his signature on a blank'
piece of paper cuts at the root of his case that he made a statement as a
result of a threat or assault, for in that case, all that was necessary was to
get his signature.
A point was sought to be made by counsel for
the appellant ,that the footprints and finger prints in the lavatory of the
first class compartment taken at Madhupur station were found to be different
from those of the appellant and that this went to show that the appellant could
not have been the murderer. The High Court turned down this contention on the
ground that before the police took charge of the situation many people had
entered the compartment of the train and the above difference therefore was not
a factor on which any reliance could be placed.
The High Court found that the appellant's
version that he did not know the victim unacceptable. His version in Ex. 6 as
to how he came to sustain his cut injury was entirely different from that given
in his statement under s. 342.
The High Court also could not accept his
version that he had lost his way to his sister's village at Roshan and that he
had suffered an injury in the way suggested by him in his statement under s.
342. But however grave the incriminating circumstances against the appellant as
summarised by the High Court may be, they were not enough to fasten the guilt
on the accused unless a portion of his statement Ex. 6 is pieced together with
them. It is only this statement which contains an admission that he was
travelling by the Barauni passenger in a compartment where he saw a murder
committed and that he had jumped out of the train near the river Patro before
getting to Madhupur and the entire evidence minus the unacceptable portion of
Ex. 6 lead to the irresistible conclusion of the appellants guilt.
It was contended before us by learned counsel
for the appellant that if the statement is to be considered at all, it must be
taken as a whole and the Court could not act upon one portion of it while
rejecting the other. Counsel sought to rely on three judgments of this Court in
aid of his contention that a statement which contains any admission or
confession must be considered as a whole and the Court is not free to accept
one part while rejecting the rest. In our view, the proposition stated so
widely cannot be accepted. As Taylor puts it in his Law of Evidence (11th
edition) Art. 725 at page 502 that with regard to the general law of
admissions, the first important rule is that 1042 "the whole statement
admissions must be taken together; for though
some part of it may be favourable to the party, and the object is only to
ascertain what he has conceded against himself, and what may therefore be
presumed to be true, yet, unless the whole is received, the true meaning of the
part, which is evidence against him, cannot be ascertained. But though the
whole of what he said at the same time, and relating to the same subject, must
be given in evidence, it does not follow that all the parts of the 'statement
should be regarded as equally deserving of credit; but the jury must consider,
under the circumstances, how much of the entire statement they deem worthy of
belief, including as well the facts asserted by the party in his own favour as
those making against him." With regard to criminal cases, ,Taylor states:
"In the proof of confessions--as in the
case of admissions in civil causes-the whole of what the prisoner said on the
subject at the time of making the confession should be taken together...
But if, after the entire statement of the
prisoner has been given in evidence, the prosecutor can contradict any part of
it, he is at liberty to do so; and then the whole testimony is left to the jury
for their consideration, precisely as in other cases where one part of the
evidence is contradictory to another. Even without such contradiction it is not
to be supposed that all the parts of a confession are entitled to equal credit.
The jury may believe that part which charges the prisoner, and reject that
which is in his favour, if they see sufficient grounds for so doing. If what he
said in his own favour is not contradicted by evidence offered by the
prosecutor, nor is improbable in itself, it will be naturally believed by the
jury; but they are not bound to give weight to it on that account, being at
liberty to judge of it, like other evidence, by all the circumstances of the
case." In Roscoe's book on Criminal Evidence (16th Edition, page 52). the
statement of law is much to the same effect.
Roscoe also cites a decision in Rex v.
Clewes(x) where the confession of the prisoner charged with murder 'that he was
present at the murder but that it was committed by another person and that he
took no part in it, was left to be considered by the jury with a direction that
the jury might, if they thought proper, believe one part of it (1) 4 Car.
1043 and disbelieve another. According to
Archbold's Criminal Pleading, Evidence and Practice (Thirty-sixth Edition, page
"In all cases the whole of the
confession should be given in evidence; for it is a general rule that the whole
of the account which a party gives of a transaction must be taken together; and
his admission of a fact disadvantageous to himself shall not be received,
without 'receiving at the same time his contemporaneous assertion of a fact
favourable to him, not merely as evidence that had made such assertion, but
admissible evidence of the matter thus alleged by him in his discharge .... It
has been said that if there be no other evidence in the case, or none which is
incompatible with the confession, it must be taken as true; but the better
opinion seems to be that, as in the case of all other evidence, the whole
should be left to the jury, to say whether the facts asserted by the prisoner
in his favour be true." In this case the appellant's statement in'Ex. 6 on
which reliance is placed to show that the appellant could not be guilty of the
crime was found wholly unacceptable.
His version of Lal Mohan Sharma's commission
of the crime, his being prevented from getting down from the train at Jasidih,
Lal Mohan apparently committing the crime forcing the appellant to be a witness
to it and the latter's version of the manner in which he received the injury
were unacceptable to the High Court and we see no reason to come to any
different conclusion. The other incriminating circumstances already tabulated,
considered along with the appellant's statement that he was present in the
compartment when the murder was committed, that he, jumped from the train near
the river, that he gave a different version as to how he had received his
injury, his statement that he had lost his way to the village Roshan being
unacceptable, all point conclusively to having-committed the murder.
There is nothing in the judgments of this Court
to which reference was made which. can help the appellant. In Hanumant v. The
State of Madhya Pradesh(1) the facts were 'as follows. On a complaint filed by
the Assistant Inspector. General of Police, Anti Corruption Department, two
persons by name Nargundkar and. Patel, were tried for the offence of conspiracy
to secure a contract of Seoni Distillery by forging the tender Ex. P-3A and for
commission of the offence of forgery of the ,tender and of another document Ex.
P-24... The' Special Magistrate convicted both the appellants on all the three
charges. The Sessions Judge quashed the conviction of both the appellants under
the first Charge of (1)  s.c.r. 1044 Criminal conspiracy but maintained
the convictions and sentences under s. 465 I.P.C. on the charges of forging Ex.
P-3A and P-24. Both the appellants went up in revision to the High Court
without any success. Examining the evidence in the appeal by special leave,
this Court held that the peculiar features relied on by the courts below in Ex.
P-3A should be eliminated from consideration and it was held that there were
really no circumstances inconsistent with Ex. P- 3A being a genuine document.
In respect of the charge regarding Ex. P-24 the trial Magistrate and the
Sessions Judge used the evidence of experts to arrive at the finding that the
letter Ex. P-24 was typed on article A which had not reached Nagpur till the
end of December 1946 and therefore the letter was antedated. The High Court
although of the view that the evidence of the experts was inadmissible
proceeded nevertheless to discuss it and place some reliance on it. The lower
courts held that the evidence of experts was corroborated by the statements of
the accused recorded under s. 342. In rejecting this conclusion it was observed
by this Court:
"If the evidence of the experts is
eliminated, there is no material for holding that Ex. P-24 was typed on article
A. The trial Magistrate and the learned Sessions Judge used part of the
statement of the accused for arriving at the conclusion that the letter not
having been typed on article B must necessarily have been typed on article A. Such
use of the statement of the accused was wholly unwarranted. It is settled law
that an admission made by a person whether amounting to a confession or not
cannot be split up and part of it used against him. An admission must be used
either as a whole or not at all.
If the statement of the accused is used as a
whole, it completely demolishes the prosecution case and, if it is. not used at
all, then there remains no material on the record from which any inference
could be drawn that the letter was not written on the date it bears ..... we
hold that there is no evidence whatsoever on the record to prove that this
letter Ex. P-24 was antedated and that being so, the charge in respect of
forgery of this letter also fails." Learned counsel for the appellant
sought to rely on the above statement of law in aid of his Contention that the
statement in Ex. 6 should either be taken as a whole or rejected altogether. In
our view that was not the ratio decided in Hanumant's case(1). As was pointed
out by this Court, with the elimination of the evidence of the experts, there
was no material for holding that Ex. (1)  s.c.R.
1045 P-24 was typed on article A and consequently
the only evidence on the subject being in the statement of the accused a part
of it could not be relied on leaving apart the exculpatory part.
This is made more clear in the next case
which was cited by learned counsel. In Palvinder Kaur v. The State of Punjab(x)
'the appellant was tried for offences under sections 302 and 201, Indian Penal
Code in connection with the charge of 'murder of her husband. She was convicted
by the Sessions Judge under s. 302 but no verdict was recorded regarding the
charge under s. 201. On appeal, the High Court acquitted her of the charge of
murder but convicted her under s. 201 I.P.C. With regard to this, the High
Court held that the most-important piece of evidence in support thereof was the
confession made by the appellant which though retracted was corroborated on
this point by independent evidence so as to establish the charge. This Court
held that there was no evidence to establish affirmatively that the death of
the appellant's husband was caused by poisoning and that being so the charge
under s. 201 I.P.C. also must fail. According to this Court, the High Court in
reaching a contrary conclusion not only acted on suspicions and conjectures but
on inadmissible evidence.
,With regard to the alleged confession of the
appellant, it was held that the High Court not only was in error in treating
the same as evidence in the case but was further in error in accepting a part
of it after finding that the rest of it was false. In that case, the evidence
showed that the body of the appellants husband was found in a trunk and
discovered in a well and that the accused had taken part in the disposal of the
body but there was no evidence to show the cause of his death or the manner and
circumstances in which it came about. Referring to the decision of Hanumant's
case(2) it was reiterated that the Court cannot accept the inculpatory part of
a statement and reject the exculpatory part. The Court also referred to the
observations of the Full Bench of the Allahabad. High Court in Emperor v. Balmakund(3)
and fully concurred therein.
In the Allahabad case the question referred
to the Full Bench was, whether the court could accept the inculpatory part of a
confession which commended belief and reject the exculpatory part which was inherently
On reference to a large number of authorities
cited the Full Bench observed that these authorities actually established no
more than this that (a) where there is other evidence, a portion of the
confession may in the light of that evidence; be rejected while acting upon the
remainder with the other evidence; and (b) where there is no other (1)
.S.C.R. 94. (:2)  S.C.R.
1091. I.L.R. 52 Allahabad 1011.
1046 evidence and the exculpatory element
is-not inherently incredible ;, the court cannot accept the inculpatory element
and reject the exculpatory element. According to the Full Bench of the
Allahabad High Court the two rules above stated had been applied during the
last one hundred years and the Full Bench answered the reference by holding
"where there is no other evidence to show affirmatively that any portion
of the exculpatory element in the confession is false, the court must accept or
reject the confession as a whole ,and cannot accept only the inculpatory element
while rejecting the exculpatory element as inherently' incredible."
Relying on the above statement of the law it was said by this Court in
Palvinder Kaur's case(1) that no use could be made of her statement contained
in the alleged confession to prove that the death of her husband was caused by
poisoning or as a result of an offence having been committed and once this.
confession was excluded altogether, there remained no evidence for holding that
her husband had died as a result of the administration of potassium cyanide.
The last decision of this Court referred to
by counsel, viz. Narain Singh v. The State of Punjab(2) does not add anything
which need be taken note of to the propositions of law laid down in the
In this case the exculpatory part of the
statement in Ex. 6 is not only inherently improbable but is contradicted by the
other evidence. According to this statement, the' injury which the appellant
received was caused by the appellant's attempt to catch hold of the hand of Lal
Mohan Sharma to prevent the attack on the victim. This was contradicted by the
statement of the accused himself under s. 342 Cr. P.C. to the effect that he
had received the injury in a scuffle with a herdsman. The injury found on his
body when he was examined by the doctor on 13th October 1961 negatives both
these versions. Neither of these versions accounts for the profuse bleeding
which led to his washing his clothes and having a bath in the river Patro, the
amount of bleeding and the washing of the bloodstains being so considerable as
to affact the attention of Ram Kishore Pandey, P.W. 17 and asking him about the
cause thereof. The bleeding was nora simple one as his clothes all got stained
with blood as also his books, his exercise book and his belt and shoes. More
than that the knife which was discovered on his person was found to have been
stained with blood according to the report of the Chemical Examiner. According
to the postmortem report this knife could have been the cause of the injuries
on the victim. In circumstances like these there (1)  S.C.R.94. (2)
 3 S.C.R. 678 1047 being enough evidence to reject the. exculpatory part
of the statement of the appellant in Ex. 6 the High Court had acted rightly in
accepting the inculpatory part and piecing the same with the other evidence to
come to. the conclusion.
that the appellant was the person responsible
for the crime.
The appeal therefore fails and the conviction
and sentence are upheld- y.p. Appeal dismissed.