DELHI HIGH COURT (D.B.)
State (Delhi Administration) - Appellant.
Ranjan Raja Ram Bagkar - Respondent
For the Appellant :- Bawa Gurcharan Singh, Advocate.
For the Respondent :- Mr. S.K. Paul, Advocate.
A. Evidence Act, Section
B. Indian Penal Code, Section
C. Indian Penal Code, Section
Cases referred :
Commissioner of Customs and Excise v. Harz (1967)1 All ER 177.
Raj Kumar Karwal v. Union of India, 1990(1) Recent Criminal Reports 719 : (1987) Crim. L R. 64.
State of Punjab v. Barkat Ram, (1962)3 S.C.R. 338.
Malik, J. - This appeal against acquittal is directed against the order dated 29th August, 1981 of the Addl. Sessions, Judge, Delhi by which she acquitted the respondent Raja Ram Bagkar who was charged for having committed the murder of Sidak Pal Singh Gill on board the ship known as M.V. Doha on the night of 9th June, 1978. The deceased was serving as fourth officer on the ship while the respondent was also serving in the same ship as a crew member.
2. Stated in detail the facts leading to the prosecution of the respondent are as follows. The respondent was a cadet on a ship named as M.V. Doha which was sailing from Qatar to Muscat on its way to the port of Freemantle, Australia. On the night intervening 9th and 10th June, 1978 between 10.30 P.M. and 11.30 P.M. he is alleged to have committed the murder of Sidak Pal Singh Gill son of Col. Prithi Pal Singh with an iron bar, in the deck of the ship and thrown him overboard in the sea. The deceased was then serving as fourth officer on the ship. The ship was registered with Univan Shipping Company, Qatar. The deceased on the night of the incident was on duty on the deck between 8 P.M. and 12 P.M. and he was supposed to call on telephone the next officer who was to take over from him. This he was. supposed to do 15 minutes before the expiry of his duty hours, during which period he was also expected to fill in the log book with regard to the duty he performed. The deceased neither filled the log book nor telephoned the next officer, namely Javedkar. Javedkar awoke and finding that he was not called by the deceased, want to the deck and not finding the deceased he reported the matter to S.S. Grawal, Captain of the ship. The captain came to the deck and found blood all around and some other evidence indicating that the deceased had been dragged and thrown overboard.
3. In order to search and recover the body of the deceased he reversed the ship and asked the crew members to look out for the body in the sea besides sending massages to other ships in this regard. They did sight an object but could not recover it despite best of efforts. All this happened at the High Sea. Thereafter, the captain continued the voyage of the ship towards the port of Freemantle in Australia. In the meantime, he also flashed messages to the company and also to the relations of the deceased about the incident. The relations of the deceased in turn contacted the Indian High Commissioner in Australia. In between he asked all the crew members to line up and examined them for the presence of injury. He found injury on the neck and chest of the respondent suggestive of a struggle. Some other cadets were also found to have similar injuries.
4. Rakesh Ayri (PW 4) was a fresh cadet on the ship and had joined it only on 2nd June, 1978. Immediately, on the next day of his joining the ship he was supposed to have come very close to the respondent and to whom the respondent on three occasions had told that he did not like the fourth officer and that he will throw him overboard. The respondent even on the night of the incident is alleged to have gone to the cabin of Avri at about 7.15 p.m. just to inform him that he was going to throw fourth officer overboard that night. The respondent was put in chains on the morning of 10th June, 1978 and was confined in the owner's cabin under guards. Next date Rakesh Ayri (PW 4) is said to have met him in the cabin where the respondent is alleged to have confessed to his involvement in the commission of crime and is alleged to have given details in respect of the sequence of events leading to the murder of the deceased.
5. Again, on the night of the incident, the accused is alleged to have come to the cabin of Ayri and taken surf from his toilet. Before the arrest of the respondent the captain had inspected his cabin and found some clothes soaked in water in a bucket. The captain felt that this was done by the accused to wash the blood stains on his clothes. The captain secured the blood stains and the bucket which were examined by a forensic expert at Freemantle, Australia. He found no traces of blood in the bucket and opined that the blood on the bridge of the ship was of AB group. We may notice here that the blood group of the deceased was also of AB group.
6. On 10th June, 1978 Rakesh Ayri, somewhere in the evening, is alleged to have told the captain about the talk the respondent had with him on earlier occasions about the hostility between the two and about the design of the respondent to throw the deceased overboard the ship. He sought permission of the captain to talk to the accused in the owner's cabin. The respondent is then supposed to have confessed to his guilt which Rakesh Ayri conveyed to the captain. The captain in turn is alleged to have opened a separate register in respect of this incident, in which apart from Rakesh Ayri's statement he recorded the statement of other crew members as well. Thereafter, he is supposed to have asked the respondent to give his own version. The accused is alleged to have given a detailed statement running into several pages partly in the captain's hand and partly in his own handwriting. This statement is marked as Ex. PKK.
7. When the ship reached Freemantle Port in Australia, Sergeant Johnson and Robert Charles Mayes of the Australian police came to the ship at the request of the High Commissioner of India to investigate and collect evidence in respect of disappearance of the deceased. Johnson questioned the accused after giving him due warning that he is not obliged to make a statement. The interrogation was carlied in the presence of the captain of the ship and second officer after the captain had briefed them. It is then alleged that the respondent by his statement marked Ex. PLL confessed to his involvement in the commission of this crime. The respondent is also alleged to have physically demonstrated as to how he killed the decessed and this demonstration was photographed by the Australian police. The respondent is then alleged to have been brought to Delhi where a case was registered on the basis of a letter issued by the Ministry of External Affairs. Remaiming investigation was conducted by Inspector T.S. Bhalla. Simranjeet Singh Mann, S.I., Faridkot collected evidence in respect of the blood group of the deceased. This much in respect of facts.
8. The learned Additional Sessions Judge, Delhi has reproduced the testimony of the material witnesses in detail in her order and we find no need to do it again in the same manner. However, we would like to indicate broadly what these witnesses have stated. The prosecution case is mainly based on the evidence of Rakesh Ayri (PW 4) regarding the confession made to him by the accused before captain S.S. Grewal PW 21 and also before Johnson and Mayes (P.Ws 23 and 24 respectively).
9. According to Ayri (PW 4) he met the accused for the first time on 3rd June, 1978, when the accused told him that he did not like the deceased for the reason that the deceased had abused his father. The accused also told him that he would throw the deceased overboard. He further states that the same thing was repeated by the accused once while unloading cargo and then on the lunch table. He further says that on the night of the incident he went to sleep in his cabin at 7 p.m. and within 15 minutes the accused came to him to inform that he was going to throw the fourth officer overboard that night but that he did not take him seriously. His further evidence is to the effect that on the same night the accused came to his cabin again and took surf from his toilet. Ayri further states that on coming to know that the fourth officer was missing he wanted to convey his suspicion to the captain but could not muster enough courage. He then informed Cadet Sailopal about his suspicion. That Sailopal took him to the captain to whom he revealed whatever he knew. When he met the accused in the owner's cabin where the accused was confined and handcuffed the accused was told him this :
- "That he (the accused) was hiding in star board deck shed and that he ran towards the deceased with an iron rod. Having heard the sound of steps the deceased turned towards him. He then hit the deceased on face and forehead and thereafter on the back of the head with iron bar. Having done so he dragged the deceased and threw him overboard. That he took a bed sheet from his cabin to wipe off the blood stains and then threw the bed sheet and iron bar in the sea. He also took surf from the cabin of Ayri to wash the blood stains on his shirt."
11. Almost to the same effect is the entry made by M.S. Aslam, Fifth Engineer. He recorded it in the same register on 13th June, 1978. Sailopal made entry in the register that on 8th June, 1978 when the cargo was being unloaded the accused informed him that he would throw the deceased overboard as he had abused him and his father. We may note that these witnesses could not be found out and their version regarding this incident written in their own hand is recorded in the log book and has been duly notarized and placed on record.
12. Having finished with what Ayri had stated, let us now turn to what S.S. Grewal (P.W. 21), captain of the ship, has testified. He says that within 20 minutes of his going to sleep on the night of the incident at about 10.40 P.M. he heard thumping noise on the deck which was right above his cabin and it went on for about 15 to 20 seconds after which there were normal foot-steps. He was awakened at 2.55 A.M. by the 2nd Officer Javedkar on the voice pipe informing him that the deceased did not wake him up for the duty and was missing from the bridge of the ship. He also found that the deceased had not filled the log book was expected of him 15 minutes before the expiry of the duty hours. At this he sounded an alarm and reversed the course of the ship to facilitate the search for the deceased. That he noticed blood stains on the star board bridge wing of the ship and other places and also noticed dragging marks. There was snoe and dirt marks on the ship side suggesting that the body was rolled over between the lower railing and the fashion plate. He also noticed that there had been an attempt to wipe off blood stains. He got the blood stains secured. He noticed scratch marks on the body of four crew members including the accused. He also found clothes soaked in a bucket in the bath room of the accused on which he found some blackish strains. This also he got preserved. He also sent messages to the company and relations of the deceased. According to him the information that the accused had threatened to throw the deceased overboard was conveyed to him by Ayri and Sailopal. That Rakesh Ayri also informed him that on 9th June, 1978 when he went to sleep at 7 P.M. the accused came to his cabin and told him that he was going to throw the deceased overboard that night, but he did not take it seriously. Ayri also told him that later on the same night the accused took surf from his bath room. On this he called the accused who told him that he knows nothing about the disappearance of the fourth officer. That thereupon he arrested the accused, handcuffed him and confined him to the owner's cabin under guard.
13. P.W. 21 further states that on 11th June, 1978 the accused informed him that the deceased had called him on phone on the night of the incident and that when he went up, there was an argument resulting in fight in which the deceased lost his balance and fell overboard the ship. That on 13th and 14th June, 1978 he recorded the statements of the entire crew. Cadet Ayri, M.S. Aslam and the accused were asked to record their statements in their own hand. That on 26th when the ship reached Freemantle Port, the Australian police came. He gave them all the information including the log book entries. He produced the log book before notary and photocopies of the log book were prepared in the notary's office. He further states that the accused confessed before the Australian police that he had killed the deceased. This confession, we may notice, contains similar details as are given in the alleged confession made before Ayri. There is, however, some difference inasmuch as in the beginning of the questioning by the police the accused had denied about his involvement. He further says that the accused demonstrated the events leading to the incident which was photographed. S.S. Grewal (P.W. 21) further admits that the captain, according to the British Maritime practice which they follow has all the powers for the maintenance of discipline and law and order on the ship and this power includes to shooting of a person as well.
14. Next we come to the evidence tendered by Sergeant Johnson and Robert Charles Mayes of the Australian police who are supposed to have recorded the confession of the accused in Australia at Freemantle Port. According to Serguent Johnson when they met the accused in the owner's cabin, he was not in handcuffs. The first story on being questioned which the accused is said to have given out before these police officers is similar to what he is alleged to have stated before P.W. 21 S.S. Grewal, captain of the ship. Johnson states that thereafter when they informed the accused that Ayri has told them everything and that they have a scientific team which would tell them what had happened, the accused made the confession about his involvement in the commission of this crime and also gave a physical demonstration of how he committed the crime and that this demonstration was photographed. This confession is marked as Ex. PW 23/A-1 to A-7. Johnson states that he had warned the accused that he was not bound to speak. Johnson, however, does not accept the suggestion that they had gone to investigate as police officers and says that they had gone as private individuals. This shows that something curious is lurking in his mind. Johnson further admits that since he had formed the opinion that the accused was the killer, he kept on asking questions from the accused his denial of knowing anything about the disappearance of the fourth officer. To the same effect is the evidence of Robert Charles Mayes (PW 24). He was accompanying Sergeant Johnson as his Junior Officer.
15. There is no other material evidence on record. In fact, the whole case it based on these confessions. Let us then notice the stand taken by the accused.
16. In general, the stand of the accused is that of denial. According to him the company had informed the captain that there has to be a culprit on the ship and he must find him out. He says that the captain made him a victim by prevail prevailing upon Cadet Ayri to become a false witness. Cadet Ayri was obliging because he required the favour of the captain to promotion and safeguard his career. That Cadet Ayri who was a newcomer would need a certificate of good character from the captain each year in the absence of which he was bound to lose his job. According to him, it was in this context that the captain had to obtain a written statement from Ayri in his own hand. The accused further stated that he was subjected to torture after arrest and was forced to write down the statement. Australian police is also stated to have tortured him to make the confession as they wished. In short, he pleaded innocence.
17. Having broadly indicated the parameters of the evidence for the consideration of the court let us now turn to assesses and evaluate the evidence and see how far it incriminates the respondent. We have carefully considered the contentions and counter-contentions. We have also perused the reasons given by the Additional Sessions Judge, Delhi in support of the view taken by her of the evidence. In our view the whole case rests on the testimony of Rakesh Ayri. (PW 4), S.S. Grewal 21), the notarised testimony of M.S. Aslam and Sailopal and also that the Sergeant Johnson and Robert Charles Mayes (PWs 23 and 24 respectively). We may note that there is evidence that with the best possible efforts M.S. Aslam and Sailopal could not be found out. Their testimony in their own handwriting is recorded in the log book of the ship, photocopies whereof duly notarized have been tendered in evidence.
18. Let us first take up for consideration the confession of the accused recorded by Sergeant Johnson (P.W. 23) and Robert Charles Mayes (P.W. 23) both belonging to Australian police force. The contention of the learned counsel for the appellant is that this confession is voluntary and had not been made before a police officer within the meaning of section 25 of the Evidence Act. It is urged that Australian police officers are not police officers appointed under the Indian Police Act and any confession made before them would be admissible in evidence. Added to this, it is urged that these two officers were not investigating the case and were, simply collecting evidence at the request of Indian High Commissioner and in fact the evidence collected was passed over to the Indian High Commissioner. Additionally, it is urged that since these officers were not holding all the power of police officers vis-a-vis this case, such as charge-sheeting the accused, the could not be characterized as police officers mentioned in section 25, Evidence Act. We may note that this confession of the accused for purposes of our record is marked as Ex. P-23/A-1 to A-7. Thus the question that needs to be answered to determine the admissibility or otherwise of this confession is as to who is a police officer within the meaning of section 25 of the Evidence Act.
19. In our view, the contention of the learned counsel is untenable and the reliance on it is misplaced. The aforesaid first case was under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and the question before the Supreme Court was whether an officer of the Railway Protection Force is a police officer within the ambit of section 25 of the Evidence Act or not. The Court ruled that since such officers do not exercise all the powers of investigation including the powers to prosecute they are not police officers. The same is the ratio of the Supreme Court decision in the aforesaid second case in respect of the officers of the Revenue Intelligence.
20. In the present case, there is no dispute that these Australian police officers (P.Ws. 23 and 24) are officers of regular police force and they are fully empowered to detect, investigate the crime and to prosecute the criminals. It is impossible to equate them with the officers of Railway Protection Force or the officers of Revenue Intelligence in our country who also are invested with some of the powers of police. It is irrelevant to argue that the respondent was not an accused person or even a suspect before these officers when be made confession before them. Section 25 of the Evidence Act does not say that the person making confession should be an accused or a suspect. It says in general that no confession made to a police officer shall be proved as against the person accused of an offence.
21. In India, while enacting section 25, Evidence Act, the legislature had in view the malpractices of police officers in extorting confessions from the accused persons in order to gain credit by securing conviction and those malpractices went to the length of all sorts of torture. The legislature regarded the evidence of police officers as untrustworthy. The object of the rule was to put a stop to the extortion of confession by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused person. The broad ground for not admitting confession made to a police officer is to avoid the danger of admitting false concession. Section 25 of the Evidence Act as such is a limiting section encroaching upon the normal rule of evidence. It must as such be construed strictly.
22. In a case such as this the expression "police officer" mentioned in section 25 of the Evidence Act as such should not be read in any strict technical sense but according to its more comprehensive and popular meaning. It must be read in the manner an ordinary citizen understands it. In common parlance and amongst the generality of people, the expression is not limited to regular police. In a case of this nature the expression "police officer" must get its wide meaning. The expression must cover a person authorised to exercise all the powers of police. These two officers went to the ship as police officers exercising all the powers of police to detect, investigate and prosecute. The fact that according to Australian law, any confession made before them was admissible in evidence makes no difference. The view that a confession made to a foreign police officer is inadmissible in evidence under sections 25 and 26 of the Evidence Act is also supported by the case Public Prosecutor v. Veeraghava Pillal, 1912 Criminal Law Journal (Vol. 13) page 528. We hold that confession made to Australian police officers is hit by section 25 of the Evidence Act.
23. That apart, as observed by the learned Addl. Sessions Judge, the evidence tendered by Johnson and Mayes does convey an unmistakable impression that the confession attributed to the accused is far from being voluntary. The tenor of evidence clearly goes to indicate that Johnson had gone with a theory fed by the captain of the ship. The accused in the beginning denied everything and thereafter repeated what was stated in Ex. PKK but Johnson persisted by telling the accused .that he had evidence that the accused had killed the deceased. It is only then that this confession is said to have come into existence. If the accused was first denying, then repeating what is stated in Ex PKK and then confessing to the guilt, how can such a confession be said to be voluntary ? Even during 15 to 20 minutes which they say were given to the accused for reflection they remained present thereby denying him the opportunity to think freely. Mayes (P.W. 24) has clearly said that they approached the case only from the angle of the accused being the culprit. Johnson has admitted that they collected evidence with an eye on the fact that this will eventually be used at trial against the accused, meaning thereby that they were interested in the successful outcome of the trial. How then it can be said that they were uninterested ? The evidence reveals that Johnson is far from being honest. Despite all the evidence. the he was acting as police officer, he insists that he had gone to the ship as a private individual. Does it not show that there is something lurking in his mind ? The least that can be said is that by saying that he went to the ship as private individual he is seeking respectability of the confession recorded by him. Despite the consistent stand of captain and Ayri that the accused at the time of recording of this confession was in handcuffs, Johnson says it was not so. Thus, on his part there is a sustained attempt to show that the accused at the time of making of confession was a free agent, which in fact he was not. The defence counsel while cross-examining him drew his attention to certain documents which he said he cannot read without spectacles though earlier he did read the documents without the aid of spectacles though earlier he did read he documents without the aid of spectacles. In our view, on these counts also he has rendered himself untrustworthy. He has displayed partiality by showing his interest in the successful outcome of the case. All this results in unmistakable impression that the confession attributed to the accused by these two police officers is not voluntary.
24. The next piece of evidence is the motive to kill the deceased as evidenced by Ayri (PW 4). In the words of Cadet Ayri, the accused had been telling him that the deceased was bad to him and had abused his father and for this reason he would throw the deceased overboard the ship. Admitted case is that Ayri had joined the ship as an apprentice only on 2nd June, 1978. According to Ayri on 3rd June, 1978 when he went to the cabin of the accused, the accused lost no time in telling him that he would throw the fourth officer overboard. He further states that this was repeated by the accused on 8th June, 1978 while unloading cargo and again on the lunch table. He also stated that on 9th June, 1978, the day of incident when be went to sleep at 7 p.m., the accused came to his cabin within 15 minutes and told him that he was going to throw the fourth officer overboard that night.
25. In our view, this seems to be a preposterous lie. It is impossible for any reasonable man to believe that the accused would create evidence against himself by confiding about his criminal design to a stranger knowing well that Ayri as an apprentice was on the ship at the mercy of the captain without whose goodwill and favour he could not build his career. If the accused had said anything to Ayri while unloading cargo and on the lunch table, others were also bound to take note of it. No reasonable man under the circumstances of this case would believe that the accused would first go to Ayri's cabin on the day of the incident only to inform him that he was going to execute his plan that night. All this does not happen in real life. This in itself is more than enough to disentitle Ayri to any creditworthiness. One has to bear in mind that even when the alarm bells are rung and till the next morning Ayri does not express any suspicion against the accused. According to him, he later confided in Sailpol who took him to the captain. This, in our view, is stated because Sailpol is also to be made a witness. It is apparent that after arresting the accused a sustained attempt was made to create evidence against him and Ayri who had just joined the ship was found to be the most convenient tool to cater to all the requirements. Ayri is the person who was most in need of favour and goodwill of the captain to promote his career and keep the job. It is significant to note that the captain on the ship is all powerful. The possibility that Ayri in particular and other officers like M.S. Aslam and Sailpol in general thus obliged the captain cannot in the circumstances of this case be ruled out. A man was lost on board the ship and it is the captain who has to account for the same. In such a situation one has only to imagine the mental condition of the captain to provide a solution to the disappearance of a crew member. In our view, Rakesh Ayri's entire testimony is utterly unbelievable and unworthy of any trust. To our mind, even a man not fully normal will always have reservations in talking to any person, more so, to a stranger, about his plan to kill some one. It is hard to believe that a person who wanted to kill some one would first make sure to leave behind evidence against himself. Things would rather be otherwise. Earlier also in the month of May 1978 the ship had voyage towards Australia, even at that time the accused as well as the deceased were on the ship but there was not even a murmur muchless any evidence that the accused was hostile to the deceased or that the deceased was humiliating the accused. If it were so, it would in all probability have come to the notice of some of the crew members. It is in evidence that Ayri remained on this ship for 14 months and even thereafter remained in the service of the same company. Apparently Ayri had a very strong reason to keep the captain in good humour. The captain, to our mind, was negligent in not finding what had happened when he heard the stumbling voice on the bridge of the ship. It was not the noise of footsteps but an unusual noise of stumbling which normally should have alerted him. S.S. Grewal (P.W. 21), captain of the ship, has not denied the suggestion that the company had sent him a massage asking him to find out a culprit. All he says is that he does not remember if there was any such message. The suppression of all massages to and from the company in this context assumes importance. It is also in this context that Ayri's evidence is to be assessed. In our view, Ayri's evidence is far from inspiring and the least that can be said is that it cannot be acted upon without any further corroboration. In this view of the matter the claim of Ayri that the accused confessed to his guilt before him also cannot be believed.
26. In fact, the evidence in this case suggests that on the morning of 10th June, 1978 when the accused was arrested, put in chains and confined to the owner's cabin under guard, the decision to frame him was taken. It is not suggested by S.S. Grewal (P.W. 21) that any other person besides Ayri had informed him about any earlier incident between the accused and the deceased. In fact, if M.S. Aslam and Sailopal had known anything they would be the first to inform the captain on 10th June, 1978 morning itself, rather immediately after the disappearance of the fourth officer and on finding the presence of blood stains on the bridge of the ship. Their statement came into existence on 12th June, 1978. In the log book photocopy Ex. P.W. 23/A-35/1 to 5, a record maintained by the captain, there is no specific mention of the fact that Ayri along with Sailopal came to him on the morning of 10th June, 1978 and communicated this information to him. In fact, even the name of Rakesh Ayri is mentioned in the log book for the first time on 15th June, 1978. In this context, it is significant to note that Ayri made statement ex. P/R on 13th June, 1978 which is recorded in his own hand. This makes it amply clear that till the captain made sure that Ayri was going to bind himself by making his statement in writing he did not risk bringing his name into the picture. That is the only reasonable explanation one can think of for the mention of Ayri in the log book for the first time on 15th June, 1978. Mr. Feeney, a forensic expert of the Australian police, was not asked to conduct test for the presence of detergent in the bucket. This risk in all probability was not taken to avoid any exposure.
27. Having found that Rakesh Ayri was introduced as a false witness and having also found that Australian police conducted itself partially in extorting the confession of the accused, the evidence tendered by S.S. Grewal (P.W. 21) captain of the ship can hardly be of any worth, particularly when all the indications are that he was the kingpin in framing the accused.
28. We would, however, like to make reference to other reasons for discrediting his testimony. The confession which the accused is stated to have made before him is marked as Ex PKK The plea of the accused that it was taken from him under duress and under extreme physical and mental pressure cannot simply be wished off. We have seen that the accused was arrested, chained and confined under guard on 10th June, 1978 morning itself. The confession Ex. PKK allegedly made before the captain is dated 14th June, 1978. Earlier on 11th June, 1978 the accused is alleged to have made confession of his guilt before Ayri when the latter met him in the owner's cabin. Ought we to know why did the captain postpone the recording of this confession to 14th June, 1978 ? Is it that the accused had made no confession before Ayri and was not prepared to confess his guilt ? We cannot in the circumstances ignore the fact that the captain had all the authority on board the ship for maintaining discipline and safeguarding of the ship. The captain certainly was in a position of authority and the evidence is suggestive of the fact that he used his authority to extort this confession. The accused was helpless and had no recourse to any independent agency. It is in evidence that while this statement was being taken from the accused, the captain or some other officer of the ship was present in the owner's cabin. If the accused had volunteered to record the confession of his guilt in his own hand, where was the need for the captain or one of the other officer to remain present while the accused was writing it ? The only reasonable and possible explanation which we can think of is that they wanted him to write what they wished, which wish, in our view, was to show the involvement of the accused in the commission of this crime.
29. In any case, the confession Ex. PKK alleged to be partly in the handwriting of the captain and partly in the handwriting of the accused is not wholly inculpatory. It is to the effect that it was the deceased who used to humiliate him. It further reveals that it was the deceased who called him to the bridge and involved him in a fight and in this fight after the deceased sustained injury, he again pounced upon the accused and in the process lost his balance and went overboard. It is possible that in this the role of the ship in High Sea must also have contributed to the loss of balance. If this confession is believed it only signifies that it was the deceased who had bad intention and the accused was only defending himself. This in fact is one aspect of the story set up by the prosecution and the benefit thereof cannot be denied to the accused.
30. Curiously, the confession alleged to have been made before Ayri is wholly inculpatory. It appears to us that having failed to extort a wholly inculpatory statement from the accused, the captain somehow induced the accused to make this partly inculpatory statement and the only reason for the captain to do this was to save his own skin and to provide some sort of story for the disappearance of the deceased. This confession Ex. PKK made before the captain is in conflict with the confession alleged to have been made before Ayri. The confession made before the Australian police officers is a blend of both. How then can any reliance be placed upon these ? Why is the court not told as to what were the exact facts ? This court in these circumstances would be justified to act on the prosecution, evidence most favourable to the accused and that is what the learned Additional Sessions Judge has done. We are, in the circumstances of this case, of the view that there is no legal evidence on the basis of which the accused could be held guilty for the murder of the deceased Sidak Pal Singh Gill. To our mind the view of the evidence taken by the trial court is the only view which a trained and experienced judge could take. We, therefore, find no justification for reversing the order of the trial court acquitting the respondent. The appeal is dismissed
Jaspal Singh, J. :
31. I find myself in the same white sheet as my learned brother. I agree and only want to add a very few words of my own.
32. We have had the advantage of listening to a most persuasive argument presented to us by Bawa Gurcharan Singh in support of his appeal, but I am bound to say that in the event, like my distinguished brother, I have not been persuaded. I propose to deal with only a few facts of his all encompassing argument.
33. It was contended that the confession made before the Captain of the ship, in particular, being without any threat or inducement, it deserved to be admitted in evidence. In any case, it was argued, a distinction has to be drawn between the threat or inducement relating to a charge or a contemplated charge and the threat or inducement not relating to the charge. The contention was that there being no threat or inducement relating to the charge, the confession in would, at worst, fall under the second head rendering it admissible in evidence. Although reference was not made to any authority in support, this distinction does appear in Hale's Pleas of the Crown (Chapter 46) and Taylor on Evidence (1848 Edn. P. 592). It also draws blood from some decided cases like R.V. Lloyd, (1834)5 C. & P. 393. However, the said distinction has not found favour with Archbold (See Archbold's Pleading and Evidence in Criminal Cases (18th Edn. 1875)] and Kenny [See : Outlines of Criminal Law]. It has also been rejected, clearly and squarely, in Commissioner of Customs and Excise v. Harz (1967)1 All ER 177 wherein it has been condemned as "illogical", "unreasonable" and "ridiculous". Being, with respect, in complete agreement, nothing more need be added on this so-called distinction.
34. A word or two more on the so-called confession before the Captain of the ship. It cannot be looked into as, I think, it is self exculpatory. It cannot be accepted also for the reason that it was made by a person who was in a condition or situation which had sapped away his strength and had made him vulnerable. The value of the statement has to be assessed in the light of the medical and psychological condition of the suspect and, as assessed, the statement in question has to be rendered inadmissible for unreliability. In the case before us, the suspect was kept in chains. He was incarcerated. Scantily clothed, he was made to languish in solitary confinement and for days together. He thus underwent an ordeal, physical and mental, which could shatter even the nerves of steel. Such a person, in such a situation, should invariably be examined in the presence of a doctor or an advocate. Non- compliance, in appropriate cases, as in the present case, may justify exclusion. I a in conscious of there being no Indian precedent in my support, at least not to my knowledge, but then, a beginning has to be made by some one, some day, some where.
35. While dealing with the confession before the Australian police officers, it was contended that section 25 was embodied in the Evidence Act because the Indian Police are suspect and often extort confessions by inducement, undue influence, torture and oppression and that as the Police in countries like England and Australia suffer from no such blemishes, and that is why, confessions before Police in those countries are not excluded. Therefore, section 25 must be kept confined only to the Indian Police. I confess, I find myself unable to subscribe to this view. One need not go into the first report of the Indian Law Commissioners or that remarkable judgment of one of our most distinguished judges Mahmood, J. in R. V. Babu Lal (6 A. 509) to know the object for which this section has been enacted or the conduct of the police generally. Whatever be the historical background, it is with a view to prevent the abuse of power by the Police that we have this section and, it matters not whether it is the Indian Police or the Police from say, England or Australia. No artificial distinction, as sought, can, thus, be allowed to be drawn. And, just to show, and with no other purpose, how shallow is the foundation of this distinction, I may mention that in Raj Kumar Karwal v. Union of India, 1990(1) Recent Criminal Reports 719 : (1987) Crim. L R. 64, the police acted mala fide and exceeded its authority and in Mason's case, (1988) 86 Cr. App. R. 349, the police practised a deception. I may also draw attention to the police excesses against Mr. Kevin Taylor, a Manchester businessman (Manchester Crown Court, ex. P. Taylor, (1988) 1 WLR 705). What is of significance is that all these instances come from England. Not long time back one of the tallest men of this century Bertrand Russel said in his "Power" :
- "The gist of the matter is that a policeman is promoted for action leading to the confession of a criminal, that the courts accept confession as evidence of guilt, and that, in consequence it is to the interest of individual officers to torture arrested persons until they confess. This evil exists in all countries in a greater or lesser degree. For the taming of the power of the police, one essential is that a confession shall never in any circumstances, be accepted as evidence."
- "There seem to be no dispute that a person who is a member of the police force is a police. A person is a member of the police force when he holds his office under any of the Acts dealing with the police. A person may be a member of the police in any other country. Officers of the police the erstwhile Indian states and an officer of the police of a foreign country have been held in certain decided cases to be police officers within the meaning of section 25 of the Evidence Act. There is no denying that these persons are police officers and are covered by that expression in section 25."