PETITIONER: PALVINDER KAUR Vs. RESPONDENT: THE STATE OF PUNJAB(RUP SINGH-Caveator) DATE OF JUDGMENT: 22/10/1952 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA BHAGWATI, NATWARLAL H. CITATION: 1952 AIR 354 1952 SCR 94 CITATOR INFO : A 1960 SC 409 (8) RF 1965 SC1413 (5,13) R 1966 SC 119 (12) F 1968 SC 829 (6) D 1969 SC 422 (19,21) R 1972 SC 66 (12,13) D 1975 SC1925 (42,43,44) F 1976 SC1167 (15) RF 1976 SC1797 (6) R 1979 SC 154 (42) R 1979 SC 826 (22) R 1990 SC 79 (19) ACT: Criminal trial-Circumstantial evidence-Duty of courts to safeguard themselves against basing decision suspicions- ConfesSion'-Must be accepted or rejected as a whole-Self exculpatory statement containing admission of incriminating facts-Admission of incriminating portion as true rejecting exculpatory portion as false -Legality-Indian Penal Code, 1860, s. 201-Essential ingredients of offence. HEADNOTE: In eases depending circumstantial evidence courts should safeguard themselves against the danger of basing _their conclusions suspicions howsoever strong. Rex V. Hodge (1838) 2 Lew. 227, and Nargundkar v. State of Madhya Pradesh (1952) S.C.R. 1091 referred to, 95 To establish a charge under s. 201, Indian Penal Code, it is essential to prove that an offence has been committed (mere suspicion that it has been committed is not sufficient); that the accused knew or had reason to believe that such offence had been committed ; and that with the requisite knowledge and with the intent to screen the offender from legal punishment the accused caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be, false. Where the evidence showed that a person had died, that his body was found in &,trunk and was discovered in a well and that the accused took part in the disposal of the body but there was no evidence to show the cause of his death or the manner or circumstances in which it came about: Held, that the accused could not be convicted for an offence under s. 201. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory matter is of some fact, which if true would negative the offence alleged to be confessed. A confession must either admit in terms the offence or at any rate substantially all the facts that constitute the offence. Narayanaswami v. Emperor (1939) 66 I.A. 66, referred to. It is a well accepted rule regarding the use of confessions and admissions that these must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. Emperor v. Balmukand (1930) I.L.R. 52 All. 1011, followed. Where the statement made by the accused contained an admission that she had placed the dead body of her husband in a trunk and bad carried it in a jeep and thrown it into a well, but with regard to the cause of the death the statement made by her was that her husband bad accidently taken a poisonous substance which was meant for washing photos erroneously thinking it to be a medicine: Held, the statement read as a whole was exculpatory in character and the whole statement was inadmissible in evidence and the High Court acted erroneously in accepting the former part of it and rejecting the latter part as false. Judgment of the High Court of Punjab reversed. JUDGMENT:
CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 41 of
1952. Appeal by Special Leave from the Judgment and Order
dated the 3rd October,, 1951, of the High Court of
Judicature for the State of Punjab at Simla (Bhandari and
Soni-JJ in Criminal Appeal No. 86 of 1961, arising out of
the Judgment and Order dated the, 31st January, 1951, of the
Court of the Sessions Judge, Ambala, in Case No. 23 of’1950
and Trial No. 2 of 1951,
96
Jai GopalSethi (B. L. Kohli with him) for the Appellant.
H.S. Gujral, for the respondent. Bhagat Singh Chawla, for
the Caveator.
1952. October 22. The judgment 0f the Court was delivered
by
MAHAJAN J.-Palvinder Kaur,was tried for offences under
sections 302 and 201, Indian Penal Code, in connection with
the murder of her husband, Jaspal Singh. She was convicted
by -the Sessions Judge under section, 302 and sentenced to
transportation for life. No verdict was recorded regarding
the charge under section 201, Indian Penal Code. appeal
to the High Court she was acquitted of the charge of murder,
but was convicted under section 201, Indian Penal Code, and
sentenced to seven years’ rigorous Imprisonment. Her appeal
by special leave is now before us.
Jaspal Singh, deceased, was the son of the Chief of
Bhareli (Punjab). He was married to Palvinder Kaur a few
years ago and they had two children. The. husband and wife
were living together in Bhareli house, Ambala. It is said
that Jaspal’s relations with his father and grandfather,
were not very cordial and the two elders thought that
Palvinder Kaur was responsible, for this. It is also said
that Jaspal lived the allowance he got from his father and
supplemented his income by selling milk and eggs and by
doing some odd jobs. Mohinderpal Singh (a fugitive from
justice) who is related to the appellant and was employed as
a storekeeper in Baldevnagar Camp, Ambala, used occasionally
to reside in Bhareli house. It is suggested that he had
started a liaison with Palvinder.
The prosecution case is that Sardar Jaspal was
administered potassium cyanide poison by the appellant and
Mohinderpal the afternoon of the 6th February, 1950. The
dead body was then put into a large trunk and kept in one of
the rooms in the house in Ambala city. About ten days later
i.e., the
97
16th February, 1950, Mohinderpal during the absence
of the appellant, removed the trunk from the house in a jeep
when he came there with Amrik Singh and Kartar Singh (P.
Ws.), two watermen of the Baldevnagar Camp. The trunk was
then taken to Baldevnagar Camp and was kept in a store room
there. Three days later, the 19th February, 1950,
Mohinderpal accompanied by Palvinder and a domestic servant,
Trilok Chand (P. W. 27), took the trunk a few-miles the’
road leading to Rajpura, got to a katcha road and in the
vicinity of village Chhat took the jeep to a well a mound
and threw, the box into it. The jeep was taken to a
gurdwara where it was washed.
After the disappearance of the deceased, his father
made enquiries from Mohinderpal regarding the’ whereabouts
of his missing son. Mohinderpal made various false
statements to him. the 8th March, 1950, the father
advertised in the “Daily Milap” begging his son to return
home as soon as possible as the condition of his wife and
children and parents had become miserable owing to his
absence.
On the 10th March, 1950, i.e., a, month and ten days
after the alleged murder and 19 days after the trunk was
thrown into the well, obnoxious smell was coming out of the
well, and the matter being reported to the lambardars of’
village Chhat, the trunk was taken out. The matter was
reported to the police and Sardar Banta Singh, Sub-Inspector
of Police, the 11th March arrived at the scene and
prepared the inquest report and sent for the doctor. The
postmortem examination was performed the spot the next
day. No photograph of the body was taken and it was allowed
to be cremated. After more than two and a half months,
the 28th April, 1950 th -first information report was lodged
against the appellant and Mohinderpal and the26th June a
challan was presented in the court of the committing
magistrate Mohinderpal was not traceable and the case Was
started against the appellant alone,
98
There is no direct evidence to establish that the appellant
or Mohinderpal or both of them administered potassium
cyanide to Jaspal and the evidence regarding the murder is
purely circumstantial. The learned Sessions Judge took the
view that the circumstantial evidence in the case was
incompatible with the innocence of the accused, and held
that the case against the appellant was proved beyond any
reasonable doubt. The High Court appeal arrived at a
different conclusion. It held that though the body found
from the well was not capable of identification, the clothes
recovered from the trunk and found the body proved that it
was the body of Jaspal. It further held that the cause of
death could not be ascertained from the medical evidence
given in the case. The -evidence the question of the
identity of the dead body consisted of the statement of
constable Lachhman ‘Singh, of the clothes and other’
articles recovered from inside the trunk and of an alleged
confession of the accused. As regards the first piece of
evidence the High Court expressed the following opinion:
“There is in our opinion considerable force in the
contention that not only are foot constable Lachhman Singh
and Assistant Sub-Inspector Banta Singh testifying to the
facts which are false to their knowledge but that the
-prosecution are responsible for deliberately introducing a
false witness and for asking the other witnesses to support
the story narrated by Lachhman Singh that he identified the
body to be that of Jaspal Singh the 11th March and
communicate the information to the father of the deceased
the following day.)’
As regards the extra-judicial confessions alleged to. have
been made to Sardar Rup Singh and Sardar Balwant Singh,
father and grandfather of the deceased, they were held
inadmissible and unreliable. The confession made by
Palvinder to the magistrate, the 15th April, 1950, was
however used in evidence against her the following
reasoning:
“It is true that strictly speaking exculpatory statements
in which the prisoner denies her guilt cannot
99
be regarded as confessions, but these statements are often
used as circumstantial evidence of guilty consciousness by
showing them to be false and fabricated.”
It was also found that though Palvinder might have desired
to continue her illicit intrigue with Mohinderpal she may
not have desired to sacrifice her wealth and- position at
the altar of love. She may have had’ a motive to kill her
husband but a stronger motive to preserve her own position
as the wife of a prospective chief of Bhareli and that in
this situation it was by no means impossible that the murder
was committed by Mohinderpal alone without the consent and
knowledge of Palvinder, and that though a strong suspicion
attached to Palvinder, it was impossible to state with
confidence that poison was administered by her. Therefore
it was not possible to convict her under section 302, Indian
Penal Code.
Concerning the charge under section 201, Indian Penal Code,
the High Court held that the most important piece of
evidence in support of the charge was the confession which
Palvinder made the 15th April, 1950, and this confession,
though retracted, was corroborated this point by
independent evidence and established the charge.
The judgment of the High Court was impugned before us a
large number of grounds. Inter alia, it was contended that
in examining Palvinder Kaur at great length the High Court
contravened the provisions of the Code of Criminal Procedure
and that the Full Bench decision of the High Court in Dhara
Singh’s case(1) was wrong in law, that the alleged
confession of the appellant being an. exculpatory statement,
the same was inadmissible in evidence and could not be used
as evidence against her, that it had been contradicted in
most material particulars by the prosecution evidence itself
and was false and that in any case it could not be used
piecemeal; that the offences under sections 302/34 and 201,
Indian Penal Code, being distinct offences committed at two
different times and being
(1) (I952) 54 P.L.R, 58,
100
separate transactions, the appellant having been
convicted of the offence under section 302, Indian Penal
Code, only by the Session Judge, the High Court had no
jurisdiction when acquitting her of that offence to, convict
her under section 201 of the same Code; that the statements
of Mohinderpal to ‘various witnesses land his conduct were
not relevant against the appellant; that Karamchand and Mst.
Lachhmi were in the nature of accomplices and the High Court
erred in relying their testimony without any corrobora-
tion; that the High Court having disbelieved eight of the
witnesses of the prosecution and having held that they were
falsely introduced into the case, the investigation being
extremely belated and the story having been developed at
different stages, the High Court should not have relied
the same; and lastly that the- pieces of circumstantial
evidence proved against the appellant were consistent with
several innocent explanations and the High Court therefore
erred in relying them without excluding those possi-
bilities.
The decision of the appeal, in our view, lies within a
very narrow compass and it is not necessary to pronounce
all the points that were-argued before us. In our judgment,
there is no evidence’to establish affirmatively that the
death of Jaspal was caused by potassium cyanide and that
being so, the charge under section 201, Indian Penal Code,
must also fail.’ The High Court in reaching a contrary
conclusion not only acted suspicions and conjectures but
inadmissible evidence.,
The circumstances in which Jaspal died will for ever
remain shrouded in mystery and the material placed the
record it is not possible to unravel them. It may well be
that he was murdered by Mohinderpal without the knowledge or
consent of Palvinder and the incident took place at
Baldevnagar Camp and not at the house and that Mohinderpal
alone disposed of the dead body and that the confession of
Palvinder is wholly false and the advertisement issued in
Milap correctly reflected the facts
101
so far as she was concerned. The evidence led by the
prosecution, however, is of such a character that no,
reliance can be-placed it and no affirmative conclusions
can be drawn from it. The remarks of the Sessions Judge;
that the consequences had definitely revealed that justice
could not always be procured by wealth and other worldly
resources and that the case would perhaps go down in history
as one of the most sensational cases because of the parties
involved and the gruesome way”in which the murder was
committed, disclose a frame of mind not necessarily
judicial. It was unnecessary to introduce sentimentalism in
a judicial decision. The High Court was not able to reach a
positive conclusion that Palvinder was responsible for the
murder of her husband.
Whether Jaspal committed suicide or died of poison
taken under a mistake or whether poison was administared to
him by the appellant or by Mohinderpal or by both of them
are questions the answers to which have been left very vague
and indefinite by the circumstantial evidence in the case.
In view of the situation of the parties and the belated
investigation of the case and the sensation it created, it
was absolutely necessary for the courts below to safeguard
them. selves against the danger of basing their conclusions
suspicions howsoever strong. It. Seems to us that the
trial court, &Ad to a certain extent the High Court, fell
into the same error against which warning was given by Baron
Alderson in Beg. v. Hodge(1), where he said as follows:-
The mind was apt to take a pleasure in
adapting circumstances to one another, and even in straining
them a little, if need be, to force them to form parts of
one connected whole; and the more ingenious the mind of the
individual, the more likely was it, considering such
matters, to overreach and mislead itself, to supply some
little link that is wanting, to take for granted some fact
consistent with its previous theories and necessary to
render them complete.”
(1) (1838) 2 Lew. 227.
102
We had recently occasion to emphasize this point in
Nargundkar v. The State of Madhya Pradesh(1).
In order to establish the charge under section 201,
Indian Penal Code, it is essential to prove that an offence
has been committed-mere suspicion that it has been committed
is not sufficient,that the accused knew or had reason to
believe that such offence had been committed- and with the
requisite-knowledge and with the intent to screen the
offender from legal punishment causes the evidence thereof
to disappear or gives false information respecting such
offences knowing or having reason to believe the same to be
false. It was essential in these circumstances for the
prosecution to establish affirmatively that the death of
Jaspal was caused by the administration of potassium cyanide
by some person (the appellant having been acquitted of this
charge) and that she had reason to believe that it was so
caused and with that knowledge she took part in the
concealment and ‘disposal of the dead body. There is no
evidence whatsoever this point. The following facts, that
Jaspal died, that his body was found in a trunk and was
discovered from a well and that the appellant took part in
the disposal of the body do not establish the cause of his
death or the manner and circumstances in which it came
about. As already stated, there is no direct evidence to
prove that potassium cyanide was administered to him by any
person. The best evidence this question would have been
that of the doctor who performed the postmortem examination.
That evidence does not prove that Jaspal died as a result of
administration of potassium cyanide. the other hand, the
doctor was of the opinion that there were no positive
postmortem signs which could suggest poisoning. He stated
that potassium cyanide being corrosive poison, would produce
hypermia, softening and ulceration of the gastro-intestinal
track and that in this case he did not notice any such
signs. He further said that potassium cyanide corrodes the
lips and the mouth, and none of these signs was the body.
This evidence
(1) [1952] S.C.R, 1091
103
therefore instead of proving that death was caused by
administration of potassium cyanide, to the extent it. goes,
negatives that fact.
The High Court placed reliance the confession of Palvinder
made the 15th April, 1950, to bold this fact proved. The
confession is in these terms:-
“My husband Jaspal Singh was fond of hunting as well as of
photography. From hunting whatever skins (khalls) he
brought home he became fond of colouring them. He also
began to do the work of washing of photos out of eagerness.
One day in December, 1949, Jaspal Singh said to my cousin
(Tay’s son) Mohinderpal Singh to, get him material for
washing photos. He(Mohinderpal Singh) said to Harnam Singh,
who is head clerk in Baldevnagar Camp, to bring the same
from,the Cantt. Harnam Singh went to the Cantt. and
return said that the material for washing photos could be
had only by a responsible Government official. He told so
to Mohinderpat Singh, who said that Harnam Singh should take
his name and get the medicine. Thereupon Harnam Singh went
to the Cantt. and brought the medicine. I kept this
medicine. As the medicine wassticking to the paper I
put it in water in a small bottle and kept it in the
almirah. In those days my husband was in Ambala and I lived
with him in the kothi in the city. He went for hunting for
2-3 days and there he developed abdominal trouble and began
to purge. He sent for medicine 3-4 days from Dr. Sohan
Singh. One day I placed his medicine bottle in the almirah
where medicine, for washing photos had been placed. I was
sitting outside and Jaspal Singh enquired from me where his
medicine, was. I told him that it was in the almirah. By
mistake he took that medicine which was meant for washing
photos. At that time, he fell down and my little son was
standing by his side. He said ‘Mama, Papa had fallen’. I
went inside and saw, that he was in agony and in short time
be expired. Thereafter I went to Mohinderpal Singh
104
and told him all that had happened. He said that father of
Jaspal Singh had arrived and that he should be ‘intimated.
But I did not tell him, because his connections were not
good with his son and myself. Out of fear I placed his
corpse in a box and Mohinderpal Singh helped me in doing so.
For 4-5 days the box remained in my kothi. Thereafter I
said to Mohinderpal Singh that if he did not help me I would
die., He got removed that box from my kothi with the help of
my servants and placing the same in his jeep went to his
store in Baldevnagar Camp and kept the same there. That box
remained there for 8-10 days. Thereafter one day I went to
the camp and from there got placed the trunk in the jeep and
going with Mohinderpal Singh I threw the same in a well near
Chhat Banur. I do not remember the date when Jaspal Singh
took the medicine by mistake. It was perhaps in January,
1950.”
The statement read as a whole is of an exculpatory
character. It does not suggest or prove the commission of
any offence under the Indian Penal Code by any one. It not
only exculpates her from the commission of an offence but
also exculpates Mohinderpal. It states that the death of
Jaspal was accidental. The statement does not amount to a
confession and is thus inadmissible in evidence. It was
observed by their Lordships of the Privy Council in
Narayanaswami v. Emperor(1) that the word “confession” as
used in the Evidence Act cannot be construed as meaning a
statement by an accused suggesting the inference that he
committed the crime. A confession must either admit in
terms the offence, or at any rate substantially all the
‘facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively,
incriminating fact, is not of itself a confession. A
statement that contains self-exculpatory matter ‘cannot
amount to a confession, if the exculpatory statement is of
some fact, which if true, would negative the offence alleged
to be confessed. In this view of the law the High Court
(1) (1939) 66 I.A. 66; A.I.R. 1939 P.C. 47:
105
was in error in treating the statement of Palvinder as the
most important piece of evidence in support of the charge
under section 201, Indian Penal’ Code. The learned Judges
in one part of their judgment observed that strictly
speaking exculpatory statements in which the prisoner denies
her guilt cannot be regarded as confessions, but went to
say that such statements are often used as circumstantial
evidence of guilty consciousness by showing them to be false
and fabricated. With great respect we have not been able,to
follow the meaning of these observations and the learned
counsel appearing at the Bar for the prosecution was unable
to explain what these words exactly indicated. The
statement not being a confession and being of an exculpatory
nature in which the guilt had been denied by the prisoner,
it could not be used as evidence in the case to prove her
guilt.
Not only was the High Court in error in treating the
alleged confession of Palvinder as evidence in the case but
it was further in error in accepting a part of it after
finding that the rest of it was false. It said that the
statement that the deceased took poison by mistake should be
ruled out of consideration for the simple reason that if the
deceased had taken poison by mistake the conduct of the
parties would have been completely different, and that she
would have then run to his side and raised a hue and cry and
would have sent immediately for medical aid, that it was
incredible that if the deceased had taken poison by mistake,
his wife Would have,stood idly by and allowed him to die.
The court thus accepted the inculpatory part of that
statement and rejected the exculpatory part. In doing so it
contravened the well accepted rule regarding the use of
confession and admission that these must either be accepted
as a whole or rejected as a whole and that the court is not
competent to accept only the inculpatory part while
rejecting the exculpatory part as inherently incredible.
Reference in this connection may be made to the observations
of the Full Bench of the Allahabad
106
High Court in Emperor v. Balmakund(1), with which
observations we fully concur. The confession there
comprised of two elements, (a) an account of how the accused
killed the women, and (b) an account of his reasons for
doing so, the former element being inculpatory and the
latter exculpatory and the question referred to the Full
Bench was: Can the court if it is of opinion that the
inculpatory part commends belief and the exculpatory part is
inherently incredible, act upon the former and refuse to act
upon the latter ? The answer -to the reference was that
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.
The alleged confession of Palvinder is wholly of an’
exculpatory nature and does not admit the commission, of any
crime whatsoever. The suspicious circumstances from which
an inference of guilt would be drawn were contained in that
part of the statement which concerned the disposal of the
dead body. This part of the statement could not be used as
evidence by holding that the first part which was of an
exculpatory character was false when there was no evidence
to prove that it was so, and the only material which it
could be so hold was the conduct mentioned in the latter
part of the same statement and stated to be inconsistent
with the earlier part of the confession.
The result therefore is that no use can be made of the
statement made by Palvinder and contained in the alleged
confession and which the High Court thought was the most
important piece of evidence in -the case to prove that the
death of Jaspal was caused by poisoning or as a result of an
offence having been committed. Once this confession is
excluded altogether, there remains no evidence for holding
that Jaspal died as a result of the administration of potas-
sium cyanide.
(1) (193o) I.L.R. 52 All. 101.
107
The circumstantial evidence referred to by the
High Court which according to it tends to establish that
Jaspal did not die a natural death is of the’ following
nature: That Palvinder and Mohinderpal had a motive to get
rid of the deceased as -she was carrying- with Mohinderpal.
The motive, even if proved in the case, cannot prove the
circumstances under which Jaspal died or the cause which
resulted in his death. – That Mohinderpal was proved to be
in possession of a quantity of potassium cyanide and was in
a position to administer it to the deceased is a cir-
cumstance of a neutral character. Mere possession of
potassium cyanide by Mohinderpal without its being traced in
the body of Jaspal cannot establish that his death was
caused by this deadly poison. In any case, the circumstance
is not of a character which is wholly incompatible with the
innocence of the appellant. The other evidence referred to
by the High Court as corroborating the latter part of
Palvinder’s alleged confession in the view of the case that
we have taken does not require any discussion because if the
confession–is inadmissible, no question of corroborating it
arises.
Mr. Sethi argued that the statements contained
in the alleged confession are contradicted rather than
corroborated by the evidence led by the prosecution and that
the confession is proved to be untrue. It is unnecessary to
discuss this matter in the view that we have taken of the
case.
The result, therefore, is that we are constrained to
hold that there is no material, direct or indirect, for the
finding reached by the High Court that the death of Jaspal
wascaused by the administration of potassium cyanide. If we
believe the defence version his death was the result of an
accident. If that version is disbelieved,then there is no
proof as to the cause of his death. The method and manner
in which the dead body of Jaspal was dealt with and disposed
of raise some suspicion but from these, facts a positive
conclusion cannot be reached that he died an unnatural death
necessarily, Cases are not unknown
108
where death- is accidental and the accused has acted in a
peculiar manner regarding the disposal of the dead body for
reasons best known to himself. One of them might well be
that he was afraid of a false case being started against
him. Life and liberty of persons cannot be put in jeopardy
mere suspicions, howsoever strong, and they can only be
deprived of these the basis of definite proof. In this
case, as found by the High Court, not only were the Sub-
Inspector of police and police constables and other
witnesses guilty of telling deliberate lies but the
prosecution was blameworthy in introducing witnesses in the
case to support their lies and that being so, we feel that
it would be unsafe to convict the appellant the material
that is left after eliminating the perjured,, false and
inadmissible evidence.
For the reasons given above we allow this appeal,
set aside the conviction of the appellant under section 201,
Indian Penal Code, and acquit her of that charge also.
Appeal allowed.
Agent for the appellant: Sardar Bahadur. Agent for the
respondent: P.A. Mehta. ,Agent for the caveator: Harbans
Singh.
