Posted On by &filed under Bombay High Court, High Court.

Bombay High Court
Emperor vs Kesari Dayal Kanji on 4 March, 1909
Equivalent citations: 2 Ind Cas 517
Author: Chandavarkar
Bench: Chandavarkar, Heaton


Chandavarkar, J.

1. There has been, in my opinion, a plain misdirection in the learned Judge’s charge to the Jury to Warrant our holding that there is an error of law in the verdict of a majority of the Jury which has been accepted by the Judge. The evidence against the accused rested on the testimony of her step-son Chittio and her own confession.

2. Dealing with the latter the learned Sessions Judge in his charge to the Jury said:

With regard to the confession of accused which she now says she made under pressure from the Police, though there is no evidence to that effect, the law is that a confession which is caused by any inducement, threat or promise is irrelevant. There is no evidence that the confession was so caused. If you believe the confession to be voluntary it corroborates the story of Chittio.

3. Now, in the first place, the question whether a confession was voluntarily made or not has to be decided by the Judge himself for the purpose of admitting it in, or excluding it from, the evidence in the case. If the Judge finds it was voluntarily made and was not caused by any threat or inducement, he must admit it in evidence. Once it is so admitted, it is for the Jury to say whether it just true or not, The Jury may decline to attach any weight to and rely upon the confession. And the Judge, in charging the Jury, may say that if, in their opinion, the confession was extorted by threat or inducement it is open to them to infer that on that account it is not true. What grounds influence a Jury in the verdict is not easily ascertain-able; and it is, therefore, necessary that the Judge should explain the law as to confessions carefully. In the present case the Judge erred in simply saying to the Jury that if they believed the confession to be “voluntary” it corroborated the story of Chittio, whereas he ought to have told them that what they had to address their minds to was whether the confession was true. Further, the learned Judge placed but faintly before the Jury the important circumstance that the evidence of the confession was supported by the statement of the accused made before the Committing Magistrate. In that statement she admitted the correctness of the confession and she admitted having murdered Mithee. Even in the Sessions Court, while pleading that her confession had been extorted from her, she said what is written might be true.” So the confession did not standalone and the case for the prosecution rested on her own admissions in the Committing Magistrate’s Court corroborating the confession. That case ought to have been put before the Jury properly and fairly by the Judge in his summing up. Every party to a trial by Jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal.” Bray v. Ford (1896) A.C. 44 : 65 L.J.Q.B. 243 : 73 L.T. 609. The learned Judge has failed, in my opinion, to do that in the present case. Nor is that all. At the conclusion of his summing up the learned Judge said to the Jury that the view they took of the case against the accused must depend principally” on the credence they attached to the evidence of Chittio; and he explained that opinion of his as follows: “If you think that Chittio is tolling a tutored story and that the accused was forced to make a false confession you must of course acquit the accused.” That is giving the go by altogether to the accused’s statement made before the Committing Magistrate and the result has been that the Judge in his charge to the Jury directed them as if all the evidence against the accused consisted of the testimony of Chittio and her confession. That was not a fair representation of the evidence led by, and the case for, the prosecution. There has, therefore, in my opinion, been a misdirection amounting to an error of law and an appeal lies to this Court from the verdict of acquittal given by a majority of the Jury and accepted by the Sessions Judge.

4. On the merits we think it is a clear case. The evidence leaves no doubt that the deceased had been practically treated as an out-caste and had become an eyesore to the accused. The accused had tried to induce the leading men of the caste to take the girl back into caste but in vain. It is probable that a woman of the accused’s temperament thought of getting rid of the odium resting on her house on account of the girl’s excommunication by putting an end to the girl’s life. This probability fits in with the evidence of the accused’s confession which was repeated seven days later before the Committing Magistrate. We set aside the order of acquittal and convicting the accused of murder sentence her to transportation for life.

Heaton, J.

5. I agree in the conclusion arrived at and the sentence proposed. But I should like to draw attention to these words from the Criminal Procedure Code, Section 298, that “it is the duty of the Judge…in his discretion to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties.” That is the duty of a Judge. And it seems to me that that duty will be best fulfilled, in the case of confessions, by the Judge enquiring from the accused, or if he is represented by a pleader, from his pleader, whether the confession which it is proposed to put in is or is not objected to. If it is objected to, then it is for the Judge to decide whether it should be admitted in evidence or not. He ought not in any circumstances to throw on the Jury the duty of saying whether the confessions are voluntarily made or not. it may be that the Jury in considering all the circumstances of a case will take the question of the voluntariness of a confession into their consideration and it may influence their decision. But it is not for the Judge in his charge to the Jury to ask them to decide whether the confessions are voluntarily made or not. All he has to do, so far as I can understand, is to tell the Jury that in the exercise of the duty imposed on him he has allowed the confession to go in as evidence; and it is for them to determine how much weight is to be attached to it, and to decide whether it is true or not. It seems to me that in this case, the Judge disregarding the provisions of the law seriously misdirected the Jury with the result that there was gross miscarriage of Justice.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

103 queries in 0.157 seconds.