judgement:
ON: criminal Appeal No. 184 of 1956.
Appeal. from the judgment and order dated October 15, 1956, of the former Nagpur High Court in Criminal Appeal No. 205 of 1956 and Criminal Reference No. 15 of 1956, arising out of the judgment and order dated July 10, 1956, of the First Additional District Judge, Nagpur in Sessions Trial No. 34 of 1956.
554 J. N. Banerjee and P. C. Agarwala, for the appellant.
Jindra Lal and R.H.Dhebdr, for the respondent.
September 25.
The following Judgment of the Court was delivered by SINHA J.
This appeal on a certificate of fitness under article 134(1)(c), granted by the High Court at Nagpur (as it then was), is directed against the concurrent judgment and orders of the courts below, so far as the appellant Khushal is concerned, convicting and sentencing him to death under section 302, Indian Penal Code, for the pre meditated murder of Baboolal on the night of February 12, 1956, in one of the quarters of the city of Nagpur.
It appears that there are two rival factions in what has been called the Mill area in Nagpur.
The appellant and Tukaram who has been acquitted by the High Court, are the leaders of one of the factions, and Ramgopal, P.W. 4, Inaya tullah, P.W. 1, and Tantu, P.W. 5, are said to be the lead ers of the opposite faction.
Before the time and date of the occurrence, there had been a number of incidents between the two rival factions in respect of some of which Inayatul lah and Tantu aforesaid had been prosecuted.
Even on the date of the occurrence, apart from the one leading to the murder of Baboolal, which is the subject matter of the present appeal, Tantu and Inayatullah had made two separate reports about the attacks on them by Khushal 's party.
There was another report lodged by Sampat one of the four persons placed on trial along with the appellant, for the murder of Baboolal.
That report was lodged at Ganeshpeth police station at about 9.30 p.m. on the same date February 12, 1956 against Inayatullah alias Kalia and Tantu, that they had attacked the former with sharp edged weapons (exhibit P 26).
The prosecution case is that the appellant Khushal was on bad terms with Baboolal who was on very friendly terms with the leaders of the opposite faction aforesaid.
Being infuriated by the conduct of Baboolal in associating with the enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tukaram 555 suddenly attacked Baboolal with swords and spears and in flicted injuries on different parts of his body.
The occur rence took place in a narrow lane of Nagpur at about 9 p.m. Baboolal was taken by his father and other persons to the Mayo hospital where he reached at about 925 p.m.
The doctor in attendance Dr. Kanikdale (P.W. 14) at once questioned him about the incident and Baboolat is said to have made a statement to the doctor which the latter noted in the bed head ticket (exhibit P 17) that he had been assaulted by Khu shal and Tukaram with swords and spears.
After noting the statement aforesaid, of Baboolal, the doctor telephoned to the Ganeshpeth police station where the information was noted at 9.45 p.m.
On receiving the information, Sub Inspec tor A. K. Khan recorded 'exhibit P 1) and registered an offence under section 307, Indian Penal Code, and immediately went to the Mayo hospital along with a head constable and several con stables.
He found Baboolal in a serious condition and suspecting that he might not survive and apprebending that it might take time for the magistrate to be informed and to be at the spot, to record the dying declaration, he consult ed Dr. Ingle, the attending doctor, whether Baboolal was in a fit condition to make a statement.
The doctor advised him to have the dying declaration recorded by a magistrate.
The Sub Inspector decided that it would be more advisable for him to record the dying declaration without any delay.
Hence, he actually recorded Baboolal 's statement in answer to the questions put by him (exhibit P 2) at 10 15 p.m.
In the meantime, Shri M. section Khetkar, a magistrate, first class, was called in, and he recorded the dying declaration (exhibit P 16) between 11 15 and 11 35 p.m. in the presence of Dr. Ingle who certified that he had examined Baboolal and had found him mentally in a fit condition to make his dying declara tion.
Besides these three dying declarations recorded in quick succession, as aforesaid, by responsible public serv ants, Baboolal is said to have made oral statements to a number of persons, which it is not necessary to set out because the High Court has not acted upon those oral dying declarations.
We 71 556 shall have to advert, later, to the recorded dying declara tions in some detail, in the course of this judgment.
It is enough to say at this stage that the courts below have founded their orders of conviction of the appellant mainly on those dying declarations.
Baboolal died the next morning at about 10 a.m. in hospital.
Having come to know the names of two of the alleged assail ants of Baboolal from his recorded dying declarations, the police became busy apprehending those persons.
They could not be found at their respective houses.
The appellant was arrested four days later in an out house locked from out side, of a bungalow on Seminary Hill in Nagpur.
The other person named as one of the assailants, Tukaram, was arrested much later.
The prosecution case is that these persons were absconding and keeping out of the way of the police.
After investigation and the necessary inquiry, four persons were placed on trial and the appellant was one of them.
The Additional Sessions Judge acquitted two of them and convict ed the remaining two the appellant and Tukaram under section 302.
Indian Penal Code, or in the alternative, tinder section 302, read with section 34, Indian Penal Code.
He sentenced the appel lant to death because in his opinion, he had caused Baboolal 's death intentionally, and there were no extenuat ing circumstances.
He sentenced Tukaram to imprisonment for life, because in the learned Judge 's view of the case, Tukaram had acted under the instigation of the appellant.
Accordingly, the learned Additional Sessions Judge made a reference to the High Court for confirmation of the sentence of death.
That reference was heard along with the appeal filed by the condemned prisoner.
The reference, the appeal by the convicted accused persons, as also the appeal by the Government of Madhya Pradesh, against the two accused per sons who had been acquitted by the learned trial Judge, and the revisional application for enhancement of sentence passed upon Tukaram, also filed by the State Government, were all heard together and disposed of by one judgment, 557 by a Bench consisting of Hidayatullah C. J. and Mangalmurti J. The High Court, apparently with a view to understanding the evidence adduced in the case on behalf of the parties, made a local inspection on September 17, 1956, and recorded their impressions in a note which forms part of the record of the High Court.
In a very well considered judgment, the High Court, by its judgment and orders dated October 13, 1956, acquitted Tukaram, giving him the benefit of the doubt caused chiefly by the fact that in the dying declaration (exhibit P 16) recorded by the magistrate as aforesaid, he has been described as a Teli, whereas Tukaram before the Court is a Kolhi, as stated in the charge sheet.
The doubt was further accentuated by the fact that there were three or four persons of the name of Tukaram, residing in the neigh bourhood and some of them are Telis.
The High Court exam ined, in meticulous details, the evidence of the eye wit nesses Inayatullah, P.W. 1, and Sadashiv, P.W. 3, and agreed with the trial Judge in his estimate of their testimony that those witnesses being partisan, their evidence could not be relied upon, to base a conviction.
The High Court went further and came to the. conclusion that their evidence being suspect, could not be used even as corroboration, if corroboration was needed of the three dying declarations made by Baboolal, as aforesaid.
They upheld the conviction and sentence of the appellant on the ground that the dying declarations were corroborated by the fact that the appel lant had been absconding and keeping out of the way of the police, and had been arrested under very suspicious circum stances.
These circumstances and the alleged absconding by Tukaram were not so suspicious.
as to afford corroboration against him.
In that view, the High Court " very reluctant ly " gave the benefit of the doubt to Tukaram and allowed his appeal.
The High Court also agreed with the trial Judge in acquitting the other two accused persons Sampat and Maha deo because these two persons had not been named in the dying declarations, and the oral testimony was not of such a character as to justify conviction.
Accordingly, the Gov ernment appeal and 558 application in revision were dismissed.
As against the appellant, the reference made by the learned trial judge was accepted and his appeal dismissed.
Thus, under the orders of the High Court, only the appellant stood convicted on the charge of murder with a sentence of death against him.
He moved the High Court for a certificate under article 134(1)(c) of the Constitution, and the High Court granted a " certifi cate of fitness ".
Hence, this appeal.
At the outset, we must repeat what this Court has observed in a number of appeals coming up to this Court on certifi cates of fitness granted by High Courts, mainly on questions of fact.
The main ground for the grant of the certificate may be reproduced in the words of the High Court itself: "The main ground is that there is not enough evidence against the accused and that there is an error in our judg ment in holding that there was no evidence to show that Khushal whose absconding has been held to corroborate the dying declaration, was involved in a liquor case.
During the course of the argument neither side drew our attention to the documents which were in the record; nor was any point made of it, though we questioned why the absconding should not be taken into consideration.
Now it seems that there are one or two defence exhibits in which it has been shown that Khushal was not found in his house when he was wanted in a liquor case after a search on 5th February, 1956.
In view of the fact that there is this error and the sufficien cy of the evidence might be a matter for consideration in the light of this additional evidence, we think this is a fit case for a special certificate under article 134(1)(c) of the Constitution.
" It is clear that the High Court granted the certificate of fitness under article 134(1)(c) of the Constitution not on any difficult question of law or procedure which it thought required to be settled by this Court, but on a question which is essentially one of fact, namely, whether there was sufficient evidence of the guilt of the accused.
The latest reported case of this Court, bearing on this aspect of this appeal, is Haripada 559 Dey vs The State of West Bengal(1), to the effect that a High Court exceeds its power of granting a certificate of fitness under that article if the certificate discloses that the main ground on which it was based related to a question of fact, and that the High Court is not justified in sending up such a case for further consideration by this Court which does not, ordinarily, concern itself with deciding mere questions of fact unless such questions arise on a certifi cate granted under cls.
(a) or (b) of article 134 (1) of the Constitution.
In other words, this Court does not function ' ordinarily, as a Court of Criminal Appeal.
Under the Con stitution, it has the power, and it is its duty, to hear appeals, as a Regular Court of Appeal, on facts involved in cases coming up to this Court on a certificate under article 134(1)(a) or (b).
To the same effect are the other deci sions of this Court, referred to in the reported decision aforesaid, for example, Narsingh vs The State of Uttar Pradesh (2) Baladin vs The State of Uttar Pradesh(3) sunder Singh vs State of Uttar Pradesh(4) It is, therefore, incumbent upon the High Courts to be vigilant in cases coming up before them, by way of an appli cation for a certificate of fitness under article 134(1) (c) of the Constitution.
In view of these considerations, it has got to be held that the certificate of fitness granted by the High Court does not satisfy the requirements of article 134(1)(c) of the Con stitution.
The appeal on such a certificate has, therefore, to be dismissed in limine; but we have to satisfy ourselves whether there are such grounds as would justify this Court in granting special leave to appeal to this Court, if the appellant had approached this Court in that behalf.
We have, therefore, examined the record of this case from that point of view.
It appears from the judgments of the courts below that the prosecution case rests mainly upon the three dying declarations of Baboolal who died shortly after making those statements as to his assailants, in quick succession within about two and a half hours of the (1) [I956] S.C.R. 639.
(2) [1955] i S.C.R. 238.
(3) A.I.R. 1956 S.C. 181.
(4) A.I.R. 1956 S.C.411.
560 occurrence indeed, the first one to the doctor, was made within half an hour; as also upon the evidence of two per sons Inayatullah, P.W. I and Sadashiv, P.W. 3, who figure as eye witnesses, and Trimbak, P.W. 2 and Ramgopal, P.W. 4, who claimed to have turned up in the nick of time, to witness the last stages of the occurrence.
Though the trial Judge did not disbelieve the oral testimony of the witnesses aforesaid, and only insisted upon corroboration, the High Court was more pronounced in its view that the testimony of those four witnesses was not trustworthy.
The High Court has discussed their evidence in great detail, and was not prepared to accept any part of their testimony on the ground that they were strongly partisan witnesses and that they did not come to the rescue of the victim of the murderous as sault if they were really in the neighbourhood of the place of the occurrence, as claimed by them.
If we had to assess the value of that body of oral evidence, we may not have come to the same conclusion, but we proceed on the assump tion that the High Court is right in its estimate of the oral testimony adduced on behalf of the prosecution.
After discussing all that evidence, the High Court took the view that it could not place any reliance on the oral testimony of what Baboolal had spoken to P.Ws. 2 and 19 when they deposed that Baboolal had named two of his assailants, namely, the appellant and Tukaram.
The High Court reiied upon the three dying declarations recorded at the hospital first, by the attending doctor, second, by the Sub Inspector of police and the third, by the magistrate, first class, between 9 25 and 11 35 p. m.
As regards authenticity of the record of those three statements of the deceased, the High Court had no doubt, nor has any doubt been cast upon them by counsel for the appellant.
The High Court then considered the question whether the conviction of the accused could be based on those dying declarations alone.
It pointed out that in that High Court as also in other High Courts, con victions on dying declarations alone had been rested if the Court was satisfied that the dying declaration was true and, therefore, could be acted upon.
But the decision of 561 this Court in Ram Nath Madhoprasad vs State of Madhya Pra desh (1) was brought to their notice, and in view of that decision, the High Court looked for corroboration of the dying declarations aforesaid.
It found that corroboration in the subsequent conduct of the appellant in that, as deposed to by prosecution witness 31 the Sub Inspector in charge of Ganeshpetli police station the appellant could not be traced till February 16, 1956, on which day, the police obtained information to the effect that the accused had been concealing himself in the premises of Ganesh dhobi at Hazari Pahar.
He went there and found the appellant sitting in a room which had been locked from the front side.
He arrested the accused.
The High Court did not believe the defence suggestion that the appellant bad been concealing himself for fear of the police in connection with an excise case in which be had been suspected.
The records in connection with that case have been placed before us, and, after examining those records, we do not find any good reasons for differing from the High Court in its appreciation of the circumstances connected with the absconding of the accused.
The High Court took the view that the circumstance of the appellant 's conduct in concealing himself and evading the police for a number of days was consistent with the prosecution case that he was concerned in the crime which was the subject matter of the charge against him.
Thus, in effect, the High Court found corroboration which, according to the ruling of this Court referred to above, was necessary in order to base the conviction upon the dying declarations of Baboolal.
The question whether the circumstances of the appellant 's alleged keeping out of the way of the police, for a number of days after the occurrence, can be used as corroboration of the dying declarations, is not free from doubt and diffi culty.
The argument on behalf of the accused that he had been keeping out of the way of the police because he was suspected in the excise case is not entirely unfounded.
He had not left the city of Nagpur and gone out of the juris diction of the local police.
In those circumstances we are not (1) A.I.R. 1953 S.C. 420. 562 prepared to say that the alleged absconding of the accused could afford sufficient corroboration, if corroboration of the dying declarations was needed.
In this Court, a good deal of argument was addressed to us, to the effect that the ruling of this Court lays down a sound proposition of law which should have been followed by the High Court, and that the alleged fact of the accused absconding and keeping out of the way of the police could not be used as corroboration of the dying declaration.
The decision of this Court in Ram Nath Madhoprasad vs State of Madhya Pradesh (1), contains the following observations, at p. 423, which have been very strongly relied upon, on behalf of the appellant, as having a great bearing upon the value to be placed upon the dying declarations: "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declara tion without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.
It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered. .
We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself can, in no circumstances, be the basis of a conviction.
In the first place, we have to examine the decision aforesaid of this Court from this point of view.
This Court examined the evidence in detail with a view to satisfying itself that the dying declarations relied upon in that case were true.
In that case, apart from the dying declarations, there was the evidence of the approver.
This Court found that the evi dence of the approver and other oral testimony had been rightly rejected by the High Court.
In that case also, the Court had mainly relied upon the dying declarations for basing the conviction under section 302, (i) A.I.R. 1953 S.C. 420.
563 read with section 34, Indian Penal Code.
This Court examined for itself, the dying declarations and the other evidence bear ing upon the truth and reliability of the dying declara tions, and after an elaborate discussion of all that evi dence, came to the conclusion that the dying declarations did not contain "a truthful version of what actually hap pened".
Thus after a very careful and cautious examination of the facts of the case, connected with the recording of the dying declaration, and of the other evidence in the case and of the fact that it was a dark night without any lights available at the place of occurrence, this Court distinctly came to the conclusion that the dying declaration was not true and could not be relied upon to base, upon that alone, the conviction of the appellants.
It is, thus ' clear that the observations quoted above, of this Court, are in the nature of obiter dicta.
But as it was insisted that those observations were binding upon the courts in India and upon us, we have to examine them with the care and caution they rightly deserve.
The Legislature in its wisdom has enacted in section 32(1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact.
This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross exami nation, is not admissible.
The purpose of cross examination is to test the veracity of the statements made by a witness.
In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life.
At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross examination would not be available.
In such a case, the necessity of oath also has been 72 564 dispensed with for the same reasons.
Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected unless there are clear circum stances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight.
It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away; or because the statement has not been properly recorded, for example, the statement bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement.
These may be some of the circum stances which can be said to detract from the value of a dying declaration.
But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corrobo rated by other independent evidence, is Dot fit to be acted upon, and made the basis of a conviction.
No decision of this Court, apart from the decision already noticed, has been pointed out to us as an authority for the proposition that a dying declaration, in order to be acted upon by a court, must be corroborated by independent evidence.
On the other hand, the different High Courts in India (including Burma) have taken conflicting views as to the value of a dying declaration in part or in its entirety, without any independent corroboration.
For example, a Division Bench of the Bombay High Court, presided over by Sir John Beaumont C.J., has laid down in the case of Emperor vs Akbarali Karimbhai (I), that a statement which is covered by section 32(1) of the Evidence Act is relevant evidence and has to be judged on the same principles as other evidence, bearing in mind that such a (i) I.L.R. 565 declaration was not made on oath and was not subject to cross examination, and is, therefore, a weaker type ,of evidence than that given by a witness on oath.
Therefore, if a part of a dying declaration is deliberately false, it will not be safe to act upon the other part of the declara tion without very definite corroboration, That Bench also ruled that it is not correct to postulate that because some part of the dying declaration is false, the whole declara tion must necessarily be disregarded.
The Bombay High Court, thus, did not agree with the observations of the Calcutta High Court in the case of Emperor vs Premananda Dutt (1) to the effect that it is not permissible to accept a dying declaration in part and to reject the other part and that a dying declaration stood on a widely different footing from the testimony of a witness given in court.
On the other hand, we have the decision of the Rangoon High Court, reported in the case of the King vs Maung Po Thi (2).
In that case, the positive evidence led on behalf of the prose cution was found to have been tampered with and unreliable.
The Court set aside the order of acquittal passed by the trial judge, and recorded an order of conviction for murder, practically on the dying declaration of the victim of the crime.
The Court observed that there was.
no such rule of prudence as had been invoked in aid of the accused by the trial judge who had observed that an accusation by a dying man, without corroboration from an independent source, could not be the sole basis for conviction.
The learned Judges of the High Court further observed that in order to found on a dying declaration alone, a judgment of conviction of an accused person, the Court must be fully satisfied that the dying declaration has the impress of truth on it, after examining all the circumstances in which the dying person made his statement ex parte and without the accused having the opportunity of cross examining him.
If, on such an examination, the Court was satisfied that the dying declara tion was the true version of the occurrence, conviction could be based solely upon it.
(1) Cal.
(2) A.I.R. 1938 Rang.
282 566 In the High Court of Madras, there was a difference of judicial opinion, as expressed in certain unreported cases, which resulted in a reference to a Full Bench.
Sir Lionel Leach C. J. presiding over the Full Bench (In re, Guruswami Tevar (1) ), delivered the unanimous opinion of the Court after examining the decisions of that High Court and of other High Courts in India.
His conclusions are expressed in the penultimate paragraph of his judgment, thus: " In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense.
The Court must, of course, be fully con vinced of the truth of the statement and, naturally, it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility.
" To the same effect are the decisions of the Patna High Court in the case of Mohamad Arif vs Emperor(2), and of the Nag pur.
High Court in Gulabrao Krishnajee Maratha vs King Emperor(3).
The Judicial Committee of the Privy Council had to consider, in the case of Chandrasekera alias Alisandiri vs The King(4), the question whether mere signs made by the victim of a murderous attack which had resulted in the cutting of the throat, thus, disabling her from speaking out, could come within the meaning of section 32 of the Ceylon Evidence Ordinance, which was analogous to section 32(1) of the Indian Evidence Act.
The Pi ivy Council affirmed the decision of the Supreme Court of Ceylon, and made the following observa tions in the course of their judgment, which would suggest that a dying declaration, if found reliable by a jury, may, by itself, sustain a conviction: (1) I.L.R. ,170.
(2) A.I.R. 1941 Patna 409.
(3) I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag.
(4) [I937] A.C. 220, 229.
567 ".
Apart from the evidence proceeding from the deceased woman, the other evidence was not sufficient to warrant a conviction, but at the same time that other evidence was not merely consistent with the deceased 's statement but pointed in the same direction. ' It was.% case in which, if the deceased 's statement was received, and was believed, as it evidently was by the jury, to be clear and unmistakable in its effect, then a conviction was abundantly justified and, indeed, inevitable.
" In 'Phipson on Evidence ', 9th ed., p. 335, the author has discussed the question Whether, a dying declaration without other evidence in corroboration, could be sufficient for a conviction, and has made the following observations which are pertinent to this case : ".
The deceased then signed a statement implicating the prisoner, but which was not elicited by question and answer, and died on March 20.
It was objected that being begun in that form, it was inadmissible: Held (1) the questions and answers as to his state of mind were no part of the dying declaration; (2) that even if they were, they only affected its weight, not its admissibility ; and (3) that the decla ration was sufficient, without other evidence, for convic tion (R. vs Fitzpatrick (1910) 46 Ir.
L.T.R. 173, C.C.R).
" Sometimes, attempts have been made to equate a dying decla ration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted.
But,,in our opinion, it is not right in principle to do so.
Though under section 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to section 114 of the Act lays down as a rule of prudence based on experience, that an accom plice is unworthy of credit unless his evidence is corrobo rated in material particulars and this has now been accepted as a rule of law.
The same cannot be said of a dying decla ration because a dying declaration may not, unlike a confes sion, or the testimony of an approver, come from a tainted source.
If a dying 568 declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.
On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying decla ration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the princi ples governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magis trate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the.
circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the state ment, by circumstances beyond his control; that the state ment has been consistent throughout if he had several oppor tunities of making a dying declaration apart from the offi cial record of it ; and that the statement had been made at the 569 earliest opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination.
But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.
Thus, the necessity for corrobora tion arises not from any inherent weakness of a dying decla ration as a piece of evidence, as held in some of the re ported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.
Having made the general observations bearing on the question of the legality of basing a conviction on a dying declara tion alone, and keeping in view the tests set out above, let us examine the dying declarations now in question before us.
The most remarkable fact which emerges from an examination of the three successive dying declarations made in the course of about two hours, by the deceased, is that he con sistently named the appellant and Tukaram as the persons who had assaulted him with sword and spear.
The injuries found on his person, namely, the punctured wounds and the incised wounds on different parts, of his body, are entirely con sistent with his statement that he was attacked by a number of persons with cutting and piercing weapons.
No part of his dying declarations has been shown to be false.
Of the two assailants named by him, Tukaram was convicted by the learned trial judge, but acquitted 570 by the High Court which very reluctantly gave him the bene fit of the doubt created by the similarity of names in that locality, as already stated.
There was no such confusion in the case of the appellant.
The deceased indicated that there were two more persons concerned in the crime, but he could not name them.
The other two accused persons who were acquitted by the courts below had not been named in the dying declarations and, therefore, their acquittal did not, in any way militate against the truth of the dying declara tions.
The courts below also agreed in holding that Babool al was in a position to see his assailants and to identify them in the light of the electric lamp nearby.
They have also pointed out that there was no "coaching".
There is no doubt, therefore, that Baboolal had been consistent through out in naming the appellant as one of his assailants, and he named him within less than half an hour of the occurrence and as soon as he reached the Mayo Hospital.
There was, thus, no opportunity or time to tutor the dying man to tell a lie.
At all material times, he was in a proper state of mind in spite of multiple injuries on his person, to remem ber the names of his assailants.
Hence, we have no reasons to doubt the truth of the dying declarations and their reliability.
We have also no doubt that from the legal and from the practical points of view, the dying declarations of the deceased Baboolal are sufficient to sustain the appellant 's conviction for murder.
The only other question that remains to be considered is whether there are any extenuating circumstances in favour of the accused justify ing the lesser of the two sentences prescribed by law.
In our opinion, there are none.
It was a case of a deliberate cold blooded murder.
For the reasons given above, we uphold the judgment and order of the High Court convicting the appellant of murder and sentencing him to death.
The appeal is, accordingly, dismissed.
Appeal dismissed.

summary/full:
The Supreme Court does not ordinarily function as a Court of criminal appeal, and it is not competent for a High Court under article 134(1)(c) of the Constitution to grant a certifi cate of fitness for appeal to this Court on a ground which is essentially one of fact.
Haripada Dey vs The State of West Bengal" (1956) S.C.R. 639, followed.
There is no absolute rule of law, not even a rule of pru dence that has ripened into a: rule of law that a dying declaration in order that it may sustain an order of convic tion must be corroborated by, other independent evidence.
The observations made 553 by this Court in Madhoprasad vs The State of Madhya Pradesh are in the nature of obiter dicta and do not lay down the law.
Madhoprasad vs The State of Madhya Pradesh, A.I.R. (1953) S.C. 420, considered.
In re Guruswami Tevar, I.L.R. , approved.
Case law reviewed.
The provision of section 32(I) of the Indian Evidence Act " which makes the statement in a dying declaration as to the cause of death and the circumstances that brought it about rele vant, is an exception to the general rule of exclusion of hearsay evidence and evidence untested by cross examination.
The special sanctity which the Legislature attaches to such a declaration must be respected unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this purpose can only detract from its value but not affect its admissibility.
Although a dying declaration has to be very closely scruti nised, and tested as any other piece of evidence, once the Court comes to the conclusion, in any particular case, that it is true, no question of corroboration arises.
A dying declaration cannot be placed in the same category as the evidence of an accomplice or a confession.
Consequently, in a case where the trial judge as also the High Court founded their orders of conviction of an accused person under section 302 Of the Indian Penal Code mainly on three dying declarations made by the murdered person in quick succession one after the other, and the High Court, relying on a decision of this Court, sought for corroboration of such dying declarations in the fact that the accused person had absconded and was arrested in suspicious circumstances, but was in doubt as to the sufficiency of such evidence of corroboration and granted the certificate of fitness under article I34(I)(c): Held, that the certificate granted by the High Court was incompetent and as the case disclosed no grounds on which this Court could possibly grant special leave to appeal under article 136 of the Constitution, the appeal must be dismissed.


judgement:
Appeal No. 4542 (NM) of 1985.
From the Order dated 10.6.1985 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED(SB) (T) A. No. 88 of 1980 A. M. Chandrasekharan, V.J. Francis, N.M. Popli for the Appel lant.
B. Datta, Additional Solicitor General, Ms. section Relan and Mrs. Indra Sawhney for the Respondent.
The Judgment of the Court was delivered by 320 RANGANATH MISRA, J.
This appeal under section 35 L of the is directed against the decision of the Customs, Excise and Gold (Control) Appellate Tribunal upholding the decision of the Appellate Collector of Central Excises, Madras.
The short facts rele vant for disposal of this appeal are that the appellant manufactures aluminium wire rods out of duty paid E.C. grade aluminium ingots on job basis on behalf of various custom ers.
Between September 1974 and May 1977 it received a sum of more than 6 lakh rupees from customers by issue of debit notes over and above the amounts received under regular invoices.
The Excise Authorities came across 966 such debit notes and on the basis thereof called upon the appellant to show cause why that 'amount which was said to be handling charges should not be added to the invoice price and differ ential duty thereupon be recovered.
The Revenue took the stand that there was suppression of information on the part of the appellant with regard to collection of handling charges and, therefore, the notice was issued under Rule 10(i)(c) of the Rules framed under the Act.
The Assistant Collector confirmed the demand after cause was shown.
The Appellate Collector upheld the demand by dismissing the appeal.
The Tribunal has confirmed the Appellate order.
There is no dispute that with effect from 1.10.1975 a new Section 4 has been inserted into the Act providing for the mode of valuation.
In view of the fact that the period involved in this appeal is from 27.9.74 upto 31.5.77, the period upto 30th of September, 1975 would be covered by the old Section 4 and from 1.10.75 till 31.5.1977, the provi sions of new Section would apply in the matter of determin ing the assessable value.
It is not disputed that from 15.7.75 the levy price of aluminium had been statutorily fixed at Rs.7062 per metric ton.
It is the contention of the appellant that on the basis of Rule 6(b)(i) of the Valuation Rules the price of Rs.7062 should be adopted as being the price of comparable goods and with effect from 1.10.1975 the assessable value should have been fixed under proviso (ii) to Section 4(i)(a) or Section 4(1)(b) of the Act at the same amount.
The admitted position is that there has been no sale between the appellant and the customers of the material.
The appellant was collecting Rs.600 per metric ton as conversion charges and Rs.60 per metric ton as handling charges.
The dispute in the appeal is confined to the question as to whether Rs.60 per metric ton collected as handling charges could be added for computation of duty.
Two contentions are advanced in support of the appeal; firstly, Rs.60 which was collected as handling charges was not to be taken into 321 account for computing duty and secondly, the notice dated 13th of October, 1978 had been issued more than a year after the last date of the period in question and was barred by limitation.
Prior to 6.8.
1977, Rule 9 which corresponds to Section 11 A of the Act provided a period of one year for taking of proceedings while Rule 10 corresponding to the present section 11 of the Act prescribed a period of 3 months for such purpose.
With effect from 6.8.1977, when the rules were amended, the period of six months was substituted for the period of three months and the period of five years substituted for the period of one year.
The Tribunal has held that the period of five years was applicable to the facts of the case on the basis that it is a case of suppres sion.
It is the case of the appellant that for convenience the arrangement between the appellant and its customers was that instead of the customers collecting the ingots on the basis of allotment at their respective factories and then transporting the same to the appellant situated at Belgaum in the State of Karnataka, the appellant was being permitted to lift the allotted ingots directly and after carrying out the manufacturing process it used to deliver the same to the customers.
The handling charges were intended to cover the appellant 's expenses in lifting the ingots.
The Tribunal has, therefore, come to the right conclusion in holding that the handling charges represented pre manufacturing cost.
We agree that the Tribunal came to the appropriate conclusion in holding that the handling charges became a part of the value for computation of duty.
The Tribunal has recorded a finding that the appellant had suppressed the disclosure of receipt of handling charges and, therefore, the longer period of limitation applied.
The same view had been taken by the departmental authorities.
We see no justification to take a different view on the facts.
The only other submission of the appellant which remains for consideration is the tenability of the contention that the period of limitation under the old provision having expired the five year rule which has been applied was not available to be applied.
Undoubtedly, the rule is intended to relate back and cover a period of five years from the date jurisdiction under the rule is invoked.
The provision is, therefore, retrospective in operation.
It is not the stand of the learned counsel for the appellant that only when a period of five years has elapsed from the date of introduction of the rule, jurisdiction under the rule can be exercised in respect of that preceding period of five years.
Once the rule comes into existence and jurisdiction under the rule is invoked it has got to cover a period upto five years preceding 322 the date of issue of notice.
The Tribunal has endorsed such action of the departmental authorities.
The plea of limita tion has no force.
Both the contentions in support of the appeal fail.
We dismiss the appeal but without costs.
A.P.J. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
Between September 1974 and May 1977 the appellant re ceived more than 6 lakh rupees from its customers by issue of debit notes over and above the amounts received under regular invoices for manufacturing aluminium wire rods on job basis on their behalf.
The Excise Authorities issued notice under Rule 10(i)(c) of the Central Excise Rules, 1944, to the appellant to show cause why the aforesaid amount called as "handling charges" should not be added to the invoice price and differential duty recovered.
The Assistant Collector confirmed the demand after cause was shown which was upheld by the Appellate Collector and confirmed by the Tribunal.
In the appeal to this Court, on behalf of the appellant it was contended; (1) that on the basis of Rule 6(b)(i) of the Valuation Rules the statutory levy price of aluminium should be adopted as being the price of comparable goods and with effect from 1.10.75 the assessable value should have been fixed under proviso (ii) to s.4(1)(a) or s.4(1)(b) at the same amount,.
(2) that Rs.60 which was collected as handling charges was not to be taken into account for com puting duty and (3) that the notice was barred by limita tion.
Dismissing the appeal, HELD: (1) With effect from 1.10.1975 a new s.4 has been inserted into the Central Excise & Salt Act, 1944 providing for the mode of valuation.
The period involved in this appeal is from 27.9.1974 upto 31.5.1977.
Therefore, the period upto 30.9.1975 would be covered by the old s.4 and from 1.10.1975 till 31.5.1977 the provisions of new section would apply for determining the assessable value.
[320E] 319 (2) As per arrangement between the appellant and its customers, the appellant was permitted to lift the allotted ingots directly and after carrying out the manufacturing process it used to deliver the same to the customers.
[321C D] (3) There has been no sale of the material between the appellant and the customers.
The appellant was collecting Rs.600 per metric ton as conversion charges and Rs.60 per metric ton as handling charges.
[320G] (4) The handling charges were intended to cover the appellant 's expenses in lifting the ingots.
The Tribunal has come to the right conclusion in holding that the handling charges represented pre manufacturing cost and became part of the value for computation of duty.
[321D E] (5) Rule 9 which corresponds to s.11 A of the Act pro vided a period of one year for taking of proceedings while Rule 10 corresponding to the present section 11 of the Act pre scribed a period of three months for such purpose.
With effect from 6.8.1977, the period of six months was substi tuted for the period of three months and the period of five years substituted for the period of one year.
[321B C] (6) The rule is intended to relate back and cover a period of five years from the date jurisdiction under the rule is invoked.
The provision, is therefore, retrospective in operation.
[321G] (7) Once the rule comes into existence and jurisdiction under the rule is invoked, it has got to cover a period upto five years preceding the date of issue of notice.
[321H]


judgement:
: Criminal Appeal Nos.
423 425 of 1986.
From the Judgment and Order dated 4.4.1986 of the Patna High Court in Death Reference No. 3 of 1984 and in Crl.
Appeal No. 676, 647 and 627 of 1984.
R.L. Kohli and S.P. Singh for the Appellants.
Jaya Narayan and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals by special leave are directed against a common judgment of the Patna High Court rendered in Death Reference 3 of 1984 and Criminal Appeal No. 627,647 and 676 of 1984.
Each of the appellants in the two appeals has been sentenced to death under section 302 read with section 120 B of the Indian Penal Code.
Appellant Yadav has independently been convicted under section 302 of the Code and has been sentenced to death.
He has also been convicted under section 3 of the Explosive Substance Act and has been sentenced to ten years ' rigorous imprisonment.
Two other accused persons who had been put on trial along with the appellants were 408 acquitted by the trial court and their acquittal has become final.
Mahesh Narain Prasad Sharma, the victim, was a Member of the Indian Administrative Service and was posted as Collec tor and District Magistrate of Gopalganj District in the State of Bihar on the 11th of April, 1983 Mahesh Narain went to his court to work in the morning and after he finished his work, both he and his brother, P.W.62, who was waiting in the chamber of the victim started going down from the first floor of the Collectorate to reach the portico where the Collector 's car was parked.
Mahesh Prasad was followed by his Orderly Peon, P.W. 19, and his brother one after the other.
When the deceased came on the landing, Yadav who was following them suddenly took out a bomb from the bag which he held and threw it at the Collector.
The bomb exploded with a loud noise and as a result of the burst Mahesh Prasad fell rolling on the ground and part of his body was blown off.
Yadav jumped off from the stairs through the side railing but was chased by P.W.62 and others and was appre hended near a fruit stall.
He readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest of appellant Tripathi.
According to Yadav, Tripathi had prevailed upon him to kill the Collector by way of retaliation for demolishing the Ashram after getting Tripa thi detained in jail.
Yadav further maintained that Sadiq, one of the accused persons, had supplied the bomb to him.
P.W.14, the Inspector of Police, who was attracted to the scene by the sound of the bomb burst recorded the first information given by P.W.62, arrested Yadav and sent him to Gopalganj Police Station.
At the trial, 75 witnesses were examined for the prose cution.
Out of them, the evidence of 14 had been tendered.
So far as Yadav is concerned, there was direct evidence of his involvement and he had also confessed to his guilt.
Special leave, so far as he is concerned, is limited to the question of sentence.
We have, therefore, heard learned counsel for Yadav on the question of sentence and see no justification to take a view different from what has been said about him by the High Court.
His appeal, therefore, is dismissed and his conviction as also sentence as awarded by the trial court and confirmed by the High Court shall stand.
We shall now deal with the appeal filed by Sadanand Tripathi.
Sadanand came from a poor family and started his career as a Bus Conductor.
While in employment, he obtained the Degree in Law and started practice as a lawyer in Uttar Pradesh for some time.
Thereafter, he started giving reli gious discourses and styled himself as Sant 409 Gyaneshwar Maharaj.
He tried to make his followers believe that he had seen God and if they followed him and his preachings, they too could see God.
Soon he picked up con siderable following.
He used to tell his followers that they should surrender their body, wealth and mind so that the prospect of seeing God would be bright.
He encroached upon a plot of Government land and built his Ashram thereon.
As he had easy access to resources, the Ashram got fitted with all modern amenities.
Soon his followers, however, started realizing that they had been duped and tricked and began to withdraw from him.
Sadanand had employed a band of muscle men to carry out his nefarious designs.
His followers often became apprehensive of their own security and approached the local authorities for protection.
The Ashram, as the prose cution has tried to show, turned into a den of criminals.
Ultimately the authorities raided the Ashram, recovered bombs and several other objectionable articles therefrom.
Sadanand and many others were taken into custody on 10.7.1982.
The deceased, Mahesh Prasad, who was Collector of Gopalganj made an order under the Crime Control Act detain ing Sadanand in jail.
Eviction proceedings from the en croached land had already been undertaken.
On 14.7.1982 the Commissioner dismissed the appeal filed on behalf of the Ashram and on 15th July, 1982, the entire structure of the Ashram was demolished under the direct supervision of the Collector.
It is not disputed that from th July, 1982 Sadanand had continuously been detained in jail till the Collector 's murder on 11.4.1983.
In view of this fact, the prosecution has relied upon the allegation of conspiracy, confession and other features to establish the complicity of Sadanand in the murder of the Collector.
There are two confessions a judicial confession before a Magistrate, being Exhibit 44 and the other is extra judi cial confession.
Dealing with Exhibit 44, the High Court has observed: "So far as the confession before the Magis trate, Exhibit 44, is concerned, the trial court has itself, hesitatingly, accepted the same.
From the confession I find that it was in the nature of the cross examination which is not permissible under the law and has been depricated by the Supreme Court and different courts of the country.
Mr. Pandey, learned counsel appearing on behalf of the State, has fairly submitted that Exhibit 44 cannot be used in this case.
Therefore, it has to be excluded from consideration.
" 410 Before us Mr. Jai Narain for the State initially placed reliance on the confession but later conceded that apart from what the High Court has observed with regard to the confession, it appeared to be exculpatory in nature and, therefore, would not be admissible against the co accused.
In these circumstances, the judicial confession has to be kept out of considerations.
Coming to the extra judicial confession it has to be remembered that the same related to the point of time con temporaneous to the incident.
There is evidence that Yadav was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about Yadav confession before them.
There is clear material that Yadav was man handled.
P.W.3 has stated: "He was held by me and other persons chasing him.
We began to assault him and make en quiries from him.
Then the said person himself said, 'why you people are assaulting me.
I have killed the Collector by bomb at the orders of Guru Sant Gyaneshwar and one bomb has been left in the Jhola".
P.W. 10 stated: "The people who caught of him began to assault him and began to ask him why has he killed the Collector.
On being asked, he replied that he had killed the Collector under the orders of Baba . . . " P.W. 11 stated: "On being caught hold of, he was assaulted with slaps, fists and asked as to why he did so.
On being asked, the said person replied that he had hit the Collector by bomb at the orders of Guru.
" Several other witnesses have also spoken in the same trend about Yadav being assaulted by the angry mob soon after his apprehension.
It is a fact that a set of witnesses who, according to the prosecution, were present when Yadav was taken into custody following the incident, have not spoken about any confession.
They are P.Ws. 5, 12, 15, 40 and 57.
In his own statement recorded under section 164 of the Code on 13.4.1983, Yadav denied to have made any statement fol low 411 ing his apprehension.
Even accepting the prosecution story that Yadav made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that Yadav has made the statements as alleged, can the same be utilised against Sadanand is the next aspect for consid eration.
Obviously, when Yadav was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situation would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
It is well settled that the confession of a co accused is not substantive evidence against other co accused persons in the same trial.
As this Court pointed out in Kashmira Singh vs State of Madhya Pradesh, ; the confes sion of a co accused is not substantive evidence against the other accused persons at the trial but could only be used for lending reassurance if there by any other substantive evidence to be utilised or acted upon.
In Hari Charan Kurmi & Anr.
vs State of Bihar, ; this Court observed: "Thus, the confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act.
The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the con fession of a co accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." ". . . that the confession of a co accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence .
" It is now to be found out if apart from the confession there is any substantive evidence from which the prosecution can have support for its case.
According to the prosecution, Yadav was staying with 412 Sadanand in the Ashram.
Learned counsel for Sadanand has argued that the prosecution evidence on this score should be rejected as when on 10th July, 1982 Sadanand was taken into custody following the raid on the Ashram, Yadav was not found there.
Again on the 15th when the Ashram was demol ished and most of the inmates were taken into custody, Yadav was not arrested.
Several other witnesses were examined to show that Yadav was very close to Sadanand.
But as has been rightly pointed out the source of their knowledge appeared to be statement of Yadav and independently they had no personal knowledge of the fact.
Prosecution sought to place reliance upon motive.
Un doubtedly, Sadanand must have had grudge against the Collec tor for his detention as also for the demolition of the Ashram.
As a matter of fact, that must have been the common reaction of all the ashramites including Yadav and Sadiq.
Thus, this could not be a feature to supply the link for establishing conspiracy.
Prosecution also relied upon a feature, which if accept ed, could provide some link between the two for the commis sion of the offence.
According to the prosecution, Yadav was regularly visiting Sadanand at the jail.
The jail records do not support such visits.
According to the prosecution case, Yadav was bribing the jail officials for meeting Sadanand.
The prosecution has further led evidence to show that after the arrival of Sadanand at the jail, enforcement of rules became slack and there was a regular flow of food from outside.
Jail officials were also entertained by Sadanand.
This type of evidence, even if accepted, does not establish conspiracy because Yadav, being a follower, was likely in the usual course to meet Sadanand and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
Prosecution relied on an event of 11th April, 1983 by examining P.W.4.
This witness who was a convict staying in the same jail stated that his wife had an interview with him in the jail by paying bribe of Rs.2 or Rs.3 on 11.4.1983.
While he was talking to his wife, he saw accused Yadav talking to Sadanand.
He over heard Yadav telling Tripathi that his work would be done within an hour or so.
Sadanand appeared to be happy on being told so.
P.W.4 has admitted that he has been convicted in three cases of murder and several dacoities.
It appears that by then he had some pending cases against him where final reports were later given by the police.
His wife who was a material witness has not been examined in the case.
413 Obviously, as the jail records did not show that P.W.4 had an interview with his wife that day, the story of brib ing the jail officials has been introduced.
We are prepared to accept the criticism of counsel for the appellant that if the wife had been called she would not have supported the version that she met her husband P.W.4 on that day.
Adverse inference for not examining the wife has to be drawn against the prosecution.
This would thus be the net position.
It is true as argued by Mr. Jai Narain for the State that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted.
Keeping the nature of the offence in view and the conclusions drawn by the High Court, we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence the complicity of Sadanand in the conspiracy to kill the Collector through Yadav.
In these circumstances, Sadanand has become entitled to the benefit of our doubts and his conviction is not sustainable.
His appeal has to be allowed.
He is acquitted and is directed to be set at liber ty forthwith.
Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the fight time in ac cordance with law.
It is unfortunate that lapses have oc curred.
P.S.S. Appeals dis posed of.

summary/full:
The appellants were alleged to have conspired to kill the Collector cure District Magistrate.
The latter died in a bomb attack by the first accused appellant.
He was caught red handed and when given a beating by eye witnesses he readily confessed to his guilt, but gave out that he had committed the ghastly murder at the behest of the second appellant, who was at that material time detained in jail.
He made a similar confession before the Magistrate.
They were both convicted under s.302 read with section 120B of the Indian Penal Code and sentenced to death.
Their sentence was confirmed by the High Court.
Disposing of the appeals, this Court, HELD: 1.
There was direct evidence of first appellant 's involvement in the crime and he had also confessed to his guilt.
There was, therefore, no justification to take a view different from what has been said about him by the High Court.
His conviction as also sentence shall stand.
[408F G] 2.1 The prosecution has failed to establish by circum stantial evidence the complicity of the second appellant in the conspiracy to kill the Collector through the first accused.
He was, therefore, entitled to the benefit of doubt and his conviction was not sustainable.
[413D] 406 2.2 Where the prosecution relies upon circumstantial evidence to support the charge of conspiracy, a clear link has to be established and the chain has to be complete, otherwise it would indeed be hazardous to accept a part of the link as the complete one.
On the basis of such incom plete circumstantial evidence, the allegation of conspiracy cannot be accepted.
[413C] 3.1 The confession of a co accused is not substantive evidence against other co accused persons in the same trial but could only be used for lending reassurance if there be any other substantive evidence to be utilised or acted upon.
[411C] Kashmira Singh vs State of Madhya Pradesh, ; and Hari Chand Kurmi & Anr.
vs State of Bihar, ; , referred to. 3.2 The judicial confession of the main accused in the instant case was exculpatory in nature and, therefore, would not be admissible against the co accused.
It has, to be kept out of consideration.
[410A B] 3.3 The extra judicial confession of the main accused relates to the point of time contemporaneous to the inci dent.
There was evidence that he was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about his confes sion before them.
There was clear material that he was manhandled.
[410B C] 3.4 In his statement recorded under s.164 of the Code on 13.4.1983, the main accused denied to have made any state ment following his apprehension.
Even accepting the prosecu tion story that he made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that he has made the statements as alleged, the same cannot be utilised against the co accused.
Obviously when the accused was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situa tion would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
[410H; 411A B] 4.
The 2nd appellant might have had grudge against the Collector for his detention as also for the demolition of his Ashram.
That must have been the common reaction of all the ashramites, including the co accused.
This could not, therefore, be a feature to supply motive for establishing conspiracy.
[412C D] 407 5.1 Several witnesses were examined to show that the main accused was very close to the co accused.
But the source of their knowledge appeared to be statement of the main accused and independently they had no personal knowl edge of the fact.
[412B C] 5.2 P.W.4, who testified that during his interview with his wife in the same jail, he had overheard the alleged conversation between the accused and the 2nd appellant, was himself a convict in three cases of murder.
His wife, who was a material witness has not been examined in the case.
Adverse inference, has to be drawn against the prosecution for not doing so.
[413A B] 5.3 This type of evidence, even if accepted, does not establish conspiracy because the accused being a follower of the 2nd appellant, a religious preacher, he was likely in the usual course to meet the latter and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
[412F]


judgement:
Criminal Appeal No. 109 of 1987.
From the Judgment and Order dated 12.6.86 of the Kerala High Court in Crl.
M.C. No. 511/1982 and 212/1985.
P.S. Poti, P.N. Puri and E.M.S. Anam for the Appellant.
Baby Krishnan for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This Appeal by Special Leave is by a Gazetted Police Officer to seek expunction of certain ad verse remarks passed against him by the High Court of Kerala in an order passed with reference to two Criminal Miscella neous Petitions filed by Respondents 2 and 3 herein without issuing any notice to him and without hearing him.
The somewhat unusual circumstances in which the appel lant has been made the victim of strictures by the High Court may now be looked into.
One Chandrasekaran Pillai residing within the limits of Karunagapally Police Station was charged under Section 302 I.P.C. for having committed the murder of his wife Komalavalli by first beating her and kicking her and then hanging her in order to make it appear that it was a case of suicide.
The accused 's son aged about 12 years and a neighbour claimed to have witnessed the beating as well as the accused dragging the deceased to the western side of the house.
A little later the son made bold to go into the house and found his mother having with a noose round her neck.
He raised alarm and the neighbours including his maternal uncle came to the house and cut the rope and rendered first aid unsuccessfully because Komalav alli had already died.
A report was given at Karunagapally Police Station and a case of "suspicious death" was registered and investigation was done by Shri T.P. Rajagopalan, Inspector of Police (Respondent No. 2) who was examined as P.W. 16 in the Ses sions Trial against the accused.
As the brother of deceased Komalavalli was not satisfied with the manner of investiga tion of the local police he filed a petition before the Deputy Inspector General Southern range.
Under orders of the Deputy Inspector General the investigation was entrusted to the Crime Detach 505 ment in which the appellant was serving as a Deputy Supdt.
of Police.
The appellant took charge of the case and his investigation revealed that Komalavalli 's death was due to homicide and not suicide.
The appellant was incharge of the investigation of the case only from.
26.11.
1980 to 5.1.
1981 and thereafter the further investigation was done by another police officer of the Crime Detachment who was examined as P.W. 18 in the trial.
The charge sheet was eventually filed by yet another officer viz. P.W. 19 an Inspector of Police.
The defence of the accused was that his wife Komalavalli had committed suicide and that he had not murdered her.
In support of his defence the accused placed reliance upon the first Investigating Officer viz. P.W. 16 carrying out a cellophone tape test on the palms of Komalavalli and sending the cellophone tapes to the Forensic Science Laboratory to find out whether any fibres of coir rope were found in the cellophone tape and if so whether the fibres had come out of the coir rope used for the hanging.
The report of the Foren sic Science Laboratory was that the cellophone tape con tained fibres of coir which were similar to the coir rope used for the hanging.
It was, therefore, contended that Komalavalli 's death was due to suicide as otherwise fibres from the coir rope used for hanging would not have been found in the palms of her hands.
To prove the despatch of the cellophone tapes to the Forensic Science Laboratory and the receipt of the report from the said Laboratory and its despatch to the Crime Detachment a Head Constable of Karuna gapally Police Station by name E. Koyakunju (Respondent No. 1) was examined as Defence Witness No. 2.
The Sessions Judge entertained serious doubts about P.W. 16 carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of Komalavalli and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise.
We shall set out later the numerous suspi cious features noticed by the Sessions Judge regarding the conduct of P.W. 16 and DW 2 with reference to the carrying out of the cellophone tape test and the despatch of the tapes to the Forensic Science Laboratory and the entrustment of the report to the Crime Detachment.
For the present we will continue with the narrative so as to make known the circumstances which have led to the filing of this Appeal.
After evaluating the prosecution evidence the Sessions Judge held that the prosecution had failed to prove the case against the accused beyond reasonable doubt and, therefore, gave him the benefit 506 of doubt and acquitted him of the charge under Section 302 I.P.C.
It is significant to note that the acquittal was not rendered in acceptance of the defence case that Komalavalli had committed suicide but because the Court felt that it would not be safe to act upon the evidence of P.W. 2, the son and P.W. 3, the neighbour and convict the accused for the offence of murder.
In the course of his judgment the Sessions Judge made severe comments against P.W. 16, the Inspector of Police, D.W. 2, Head Constable and another Policeman P.C. 2599 and observed as follows: "Therefore in my view this is a fit case where appropriate action has to be taken against P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext.
D 14 for the reasons stated earlier.
Otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
When one wing of the police establishment tries to investigate properly and to book the culprit, P.W. 16, D.W. 2 and P.C. 2599 were trying to neutralise all the work that has been done by the Crime Detachment and to help the accused to get an acquittal.
This is a serious situation which the higher authorities in the police depart ment have to take serious notice of and curb the tendency even in the beginning.
" Aggrieved by the strictures passed by the Sessions Judge, the Inspector (P.W. 16) and the Head Constable (D.W. 2) filed Criminal Misc.
Petitions before the High Court of Kerala for expunging the adverse remarks made against them.
A learned single judge of the High Court, without making any examination of the conduct of the petitioners before him and without considering whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant in the dock for having failed to place before the Court the scientific materials which P.W. 16 had obtained in the course of investigation to find out whether Komalavalli 's death was due to suicide or homicide.
The learned judge had taken it for granted that P.W. 16 and D.W. 2 had acted in a blemishless manner and that the report of the Forensic Science Laboratory had been obtained through bona fide investigative process and it was the appellant who had schemingly kept back the crucial records from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncertain terms.
The relevant portions in the judgment where the appellant 507 who was examined as P.W. 17 in the Sessions Trial has been criticised are as under: "(para 6.) P.W. 17, Dy.
S.P. who conducted the investigation kept the above facts concealed purposely.
If the report sent by the Assistant Director of forensic Science Laboratory was made available to the court it would have gone a long way to establish innocence of the accused.
So to foist a false case of murder on the account he did not send the report of the Assistant Director of Forensic Science Labora tory to the Court.
He pleaded complete igno rance of the above examination when examined before court.
(para 8.) The part played by P.W. 17 is not beyond suspicion.
He had purposely concealed materials which were favourable to the ac cused.
It would appear that this officer was averse to scientific methods being made use of in investigation of crimes.
His attempt was only to see that the accused is convicted in this case.
This should not have been the approach of a senior officer like P.W. 17, who was investigating a very serious crime.
The life and liberty of innocent persons should not be placed at the mercy of such unscrupu lous officers.
It will be proper for the higher officers in the department to look into this matter and take proper corrective meas ures for future guidance.
" Stung by the remarks made against him without even heating, the appellant has preferred this Appeal to seek expunction of the remarks.
Now let us have a look at the distressing and suspicious features noticed by the Sessions Judge in the conduct of P.W. 16 and D .W. 2 in the "cellophone tape test" carried out by them and in obtaining the report of the Forensic Science Laboratory and the despatch of the opinion to the Crime Detachment.
The relevant portions extracted from the Judgment are as follows: (i) "The inquest Report prepared by this witness (P.W. 16) does not show that he had seized any cellophone tape or coir or that they were sent to the Forensic Science Labora tory": (ii) "There are no documents to show that the tape and coir 508 were taken into custody for the purpose of sending them to the Forensic Science Laborato ry in the case diary": (iii) "Normally any material to be examined by the Forensic Science Laboratory will be sent only through the court.
Admittedly the cellophone tape and the coir were not sent through court.
On the other hand it is stated that they were sent to the laboratory through a constable.
But the case diary does not show that any constable was sent to the Forensic Science Laboratory for handing over these articles": (iv) "P.W. 16 did not prepare, any mahazar for seizure of any cellophone tape and inquest report also does not state anything about any tape said to have been affixed by him on the palm or the dead body and taken for the pur pose of examination at the laboratory"; (v) "D.W. 1 Assistant Director of the Forensic Science Laboratory, Trivandrum, examined by the defence to prove his report Exhibit D. 10 regarding the presence of small bits of coconut fibres beating similarity to the coir rope that was also sent, had stated in cross examination that even if the tape was affixed to the coir (instead of the palms) and then sent, it will contain the fibres similar to the one found on the coir": (vi) "The investigation was taken over by the Crime Detachment on 26.
The cellophone tapes and the coir pieces are said to have been sent by P.W. 16 to the laboratory on 1.12.80 when he had ceased to be the Inves tigating Officer;" (vii) "Even if he had taken any cellophone tape and coir pieces at the time of inquest or thereafter and wanted them to be examined by the laboratory the proper course for him would have been to send them to the Dy.
S.P. who was investigating the case on 1.12.
1980;" (viii) D .W. 2 Head Constable, summoned and examined by the defence to prove the sending of the cellophone tapes and coir to the labo ratory and the report received from the labo ratory had stated "that there is no document in the 509 Policy Station to prove that cellophone tape or coir piece were sent from Karunagappally Police Station to the Forensic Science Labora tory, Trivandrum." (ix) "He further stated that the report re ceived from the laboratory was sent to the Crime Detachment on 7.1.
1981 but claimed that there is nothing to show that it was received by any officer of the Crime Detachment Office.
The despatch register Ext.
D13 only shows that a cover was handed over to a constable for delivery to the Crime Detachment Office.
But there is no acknowledgement to show that the constable had actually handed over the same to the office of the Crime Detachment at Quilon.
" (x) "D.W. 2 produced a notebook Ext.
D. 14 said to have been maintained by the constable to whom this cover was handed over for deliv ery at the office of the Crime Detachment.
In this the curious aspect is that the entry regarding this handing over is written in a sheet of paper which is affixed in the note book as an extra sheet .
This entry Ext.
D. 14 has been purposely manufactured for the purpose of this case and I have no doubt that it has been done at the instance of D.W. 2 the Head Constable and P.C. 2599 who wrote Ext.
D. 14.
Therefore the constable who wrote Ext.
D. 14 and DW 2 are equally responsible for this fraud." (xi) "The extent to which DW2 would go to help the accused is evident from the fact that he voluntarily producted Ext.
" (xii) "Ext.
D.17 is a letter sent from the Forensic Science Laboratory to the S.I. on 15.11.1980.
" This letter states that the sealed packet said to contain the MOs involved in Crime 220 of 1980 of Karunagapally Police Station were being returned unopened for want of forwarding note and certificate and hence the sealed packet may be resubmitted with proper forwarding note and certificate.
At the bottom of this letter in vernacular it is written "cellophone tape.
" Except this vernac ular writing there is nothing to show that the MOs referred to in Ext.
D. 17 were cellophone tape and coir piece .
As the packet sent from the Karunagapally Police Station was not opened, by the Forensic Science 510 Laboratory, the writing in vernacular at the bottom of Ext.
D. 17 could not have been written by anybody from the laboratory.
It is a subsequent interpollation probably at the instance of D.W. 2.
This was also interferring with official documents and tampering with it by D.W. 2 or somebody from the Police Station at Karunagapally.
It was with reference to all these features the Sessions Judge made his adverse remarks against P.W. 16, D.W. 2 and P.C. 2599 and observed that the conduct of the concerned official was highly open to suspicion, that as such a full fledged enquiry should be held against them and that "other wise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
" Coming now to the merits of this Appeal when P.W. 16 and D.W. 2 moved the High Court for expunging the adverse re marks against them the scope of the enquiry was confined to the bonafides of their action in the investigation proceed ing and whether the Sessions Judge was justified in drawing adverse inferences against them on the basis of suspicious features catalogued by him.
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant.
The enquiry in the Criminal Misc.
Petitions was only touching upon the conduct of P.W. 16 and D.W. 2 and not the conduct of the appellant.
Further more one material fact which the High Court had completely over looked is that the appellant ceased to be in charge of the case on 5.1.1981.
Thereafter the investigation of the case was taken charge of by P.W. 18 and still later by P.W. 19.
Even according to D.W. 2 the report from the Forensic Science Laboratory was sent to the Crime Detachment only on 7.1.1981 whereas the appellant ceased to be incharge of the case on 5.1.
1981 itself.
It, therefore, passes one 's com prehension as to how the appellant can be accused of having wilfully suppressed material documents from the notice of the court in order to secure a conviction unjustly against the accused in a murder case.
The High Court, it is surpris ing to find has not applied its mind to the series of suspi cious features noticed by the Sessions Judge to draw an adverse inference against P.W. 16 and D.W. 2 in conducting the so called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report.
The learned judge has taken it for granted that P.W. 16 had actually carried out a cellophone tape test, that in carrying out such a test he was wedded to scientific methods of investi gation and that he and DW 511 2 had acted fairly and squarely in trying to find out the real cause of death of Komalavalli and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a conviction at any cost.
The learned judge had failed to see that as a matter of fact the accused was not kept in the dark regarding the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result, and it was on account of that he was able to summon police officials to figure as defence witnesses and police records as defence exhibits.
We are, therefore, clearly of opinion that the High Court had completely misdirected itself in its consideration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge.
We have also to point out a grievous procedural error committed by the High Court.
Even assuming for argument 's sake that for expunging the remarks against respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appel lant and heard him before passing adverse remarks against him if it was considered necessary.
By its failure the High Court has failed to render elementary justice to the appel lant.
Yet another serious infirmity contained in the impugned order is that the High Court has failed to bear in mind the well settled principles of law laid down by this Court in more than one case that should govern the Courts before disparaging remarks are made against persons or authorities whose conduct comes into consideration before Courts of law in cases arising before them for decision.
In State of U.P. vs Mohd. Naim; , ,374equal to AIR 1964 S.C. 702 it was held as follows: "If there is one principle of cardinal impor tance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their func tions freely and fearlessly and without undue interference by anybody, even by this Court.
At the same time it is equally necessary that in expressing their opinions Judges and Magis trates must be guided by considerations of justice, fair play and restraint.
It is not infrequent that sweeping generalisations defeat the very purpose for which they are 512 made.
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose con duct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
It has also been recognised that judicial pronounce ments must be judicial in nature, and should not normally depart from sobriety, moderation and reserve".
This ratio has been followed in R.K. Lakshmannan vs A.K. Srinivasan; , and Niranjan Patnaik vs Sashibhushan Kar & Anr., ; (to which one of us was a party).
Judged in the light of the above tests, it may be seen that none of the tests is satis fied in this case.
It is indeed regrettable that the High Court should have lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them.
The appeal is, therefore, allowed and the adverse re marks against the appellant in the order of the High Court which have been extracted above will stand expunged from the order under appeal.
A.P.J. Appeal allowed.

summary/full:
The Sessions Judge while acquitting the accused of the charge under s.302 IPC entertained serious doubts about PW 16 (Respondent No. 2.), the Inspector of Police, who partly investigated the case, carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of the deceased and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise.
On the basis of the suspicions features mentioned in his judgment, the Sessions Judge made severe adverse remarks against PW 16 (Respondent No. 2.) DW 2 (Respondent No. 3) and another policeman and observed that the conduct of these officials was highly open to suspicion, that a full fledged enquiry should he held against them and that "otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment.
" The Inspector PW 16 (Respondent No. 2) and the Head Constable PW 2 (Respondent No. 3) filed petitions before the High Court for expunging the adverse remarks made against them.
A Single Judge without making any examination of the conduct of the petitioners before him and without consider ing whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant, a Deputy Suptd.
of Police (PW 17), who had also investigated the case from 26.11.80 to 5.11.81, in the dock for having failed to place before the Court the scientific materials which PW 16 502 (Respondent No. 2) had obtained in the course of investiga tion to find out whether the death of the deceased was due to suicide or homicide.
The learned judge observed that PW 16 (Respondent No. 2) and DW 2 (Respondent No. 3) had acted in a blemishless manner and the report of the Forensic Science Laboratory had been obtained through bonafide inves tigative process and it was the appellant who had schemingly kept back the crucial recordS from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncer tain terms.
Stung by the remarks made against him without even a hearing, the appellant preferred the instant appeal to seek expunction of the remarks.
Allowing the Appeal, HELD: 1.
The adverse remarks against the appellant in the order of the High Court under appeal will stand ex punged.
[512E] 2.
When PW 16 and DW 2 moved the High Court for expung ing the adverse remarks against them the scope of the en quiry was confined to the bona fides of their action in the investigation proceedings and whether the Sessions Judge was justified in drawing adverse inference against them on the basis of the suspicious features catalogued by him.
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant.
The enquiry was only touching upon the conduct of PW 16 and DW 2.
Furthermore the High Court had completely overlooked the fact that the appellant ceased to be in charge of the case on 5.1.81.
Thereafter the investigation of the case was taken charge of by PW 18 and still later by PW 19 and ac cording to DW 2 the report from the Forensic Science Labora tory was sent to the Crime Detachment only on 7.1.81 whereas the appellant ceased to be in charge of the case on 5.1.81 itself.
It, therefore, passes one 's comprehension as to how the appellant can be accused of having wilfully suppressed materiai documents from the notice of the Court in order to secure a conviction unjustify against the accused in a murder case.
[510D G] 3.
The High Court has not applied its mind to the series of suspicious features noticed by the Sessions Judge to draw an adverse inference against PW 16 and DW 2 in conducting theso called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report.
The Judge had taken it for granted that PW 16 had actually 503 carried out a cellophone tape test, that in carrying out such a test he was wedded to scientific methods of investi gation, that he and DW 2 had acted fairly and squarely in trying to find out the real cause of the death of the de ceased and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a convic tion at any cost.
The Judge had failed to see that as a matter of fact the accused was not kept in the dark regard ing the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result, and it was on account of that he was able to summon police officials to figure as defence wit nesses and police records as defence exhibits.
The High Court had thus completely misdirected itself in its consid eration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge.
[510G H; 511A C] 4.
Even assuming that for expunging the remarks against respondents No. 2 and 3 the conduct of the appellant re quired scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appellant and heard him before passing adverse remarks against him if it was considered necessary.
By its failure the High Court has failed to render elementary justice to the appellant.
[511D E] 5.
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct.
It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moder ation and reserve.
[512A C] State of U.P.v.
Mohd. Naim; , , 374 equal to AIR 1964 S.C. 702; R.K. Lakshmanan vs A.K. Srinivasan, ; ; and Niranjan Patnaik vs Sashibhushan Kar & Anr.
, ; , relied,upon.
Judged in the light of the above tests it is clear that none of the tests is satisfied in this case.
[512D] 504