KISHORI KISHORE MISHRA Vs. EMPEROR

JUDGEMENT

(1.) In this case there were four accused who were tried by the Additional Sessions Judge of Asansol with a jury, who by a unanimous verdict found the accused Ganpat Sonar, Kishori Kishore Mishra and Chhidami Sukul, guilty under Section 395, I.P.C., and Pandit Kishen Prosad Tewari not guilty. They also found Kishori Kishore Misra guilty under Section 465, I.P.C. The learned Judge, agreeing with and accepting the verdict, sentenced Kishore Kishore Misra and Chidami Lal to 10 years rigorous imprisonment each and Ganpat Sonar to five years rigorous imprisonment. Kishori Kishore Misra is the only appellant. The case was unusual. On 9th January the village Chowkidar came to the house of one Priya Nath Roy and told him that the Sub-Inspector and Inspector of Raneegunge had come to the village to inquire about his gun, as he was suspected of having given it to the dacoits in a case at Raneegunj police station. He was asked to take his license with him as the police officers wanted to see it. Accordingly, he went with the chowkidar and so-called constables to see these "officers." He saw them seated outside the house of one Behari and when he had given his gun license to them, they said that he must go and fetch the gun as well. This he did, and then they sent him to fetch the cartridges. While he was returning, they met him half-way and said that they wanted to search some houses, and took him to the house of his uncle Tarak Nath Roy. When they got there, the so-called "officers" produced revolvers and held up Priya Nath and his companions, entered Tarak's house, and broke open several boxes. One of them gave Priya Nath a receipt (Ex. 11) for his gun and went away with the gun and some property from Tarak's house. When they had gone, Priya Nath, who had realized that they were not police officers but dacoits went and gave information to the police. The defence was that all the accused except Chhidami were innocent and knew nothing about the incident. Chhidami and Ganpat each made confessions implicating some of the other accused. In charging the jury, the learned Judge dealt with these confessions and told them that the decision whether a confession was voluntary or not and therefore admissible in evidence, whether proper warning was given and a sufficient amount of time for consideration allowed, whether the formalities were properly carried out and other similar matters, were points of law and therefore for him to decide. It was for him to decide whether the police used any violence or inducement in order to make the accused person confess. Then he said that after considering the evidence on these points, he came to the conclusion that there was no reasonable ground for surmising that the confessions were not entirely voluntary. He continued as follows: You are bound by my decision on this point. You should consider that the police used no undue influence or violence, that the accused persons were given the proper warning, that their confessions were liable to be used in evidence against them, that they were given enough time to consider, before their confessions were recorded and that the confessions were entirely voluntary. Having taken these things for granted, it is for you to decide whether the accused persons were telling the truth when they confessed, and what weight should be attached to their confessions.

(2.) In my opinion this statement amounted to a serious misdirection. In a recent decision on the point in Kasimuddin V/s. Emperor 1934 Cal 853 admissibility is one question and proof another. The first, which is for the Judge, is only a prima facie or preliminary consideration, limited to the letting in of the evidence. The second, which is for the jury and relates to the credibility and the weight of the evidence, arises after the evidence has been let in, and must be decided on a consideration of all the relevant circumstances, including those proved before the Judge. Consequently although the Judge has to decide the question of the voluntariness of a confession in its bearing upon admissibility, still after he has admitted it, the jury are entitled and must be allowed to consider for themselves the question of voluntariness in its bearing upon the truth of the confession. To tell the jury that in admitting the confession the Judge had decided that it was voluntary, and that the jury were to take that question as settled and on that basis decide whether the confession was true, and what value was to be attached to it, is a serious misdirection, inasmuch as it withdraws from the jury an issue of fact relating to the question of truth.

(3.) This decision was based upon a careful consideration of the law, and of previous decisions upon this point, and we are in agreement with it. It seems to have been based, to a considerable extent, upon statements alleged to appear in a text book entitled "Wigmore on Evidence," which apparently, is an American Text Book published in Boston, U.S.A. Strictly speaking, statements made in foreign text books ought not to be considered by this Court or any other English Court. But the learned Judges also relied upon Taylor on Evidence, Edn. 2, p. 27. This author is an undoubted authority upon the law of Evidence in England, which law substantially and with very slight alterations is reproduced in the Indian Evidence Act. In addition to this misdirection, the learned Judge made a statement with regard to the appellant about which there seems to be considerable doubt whether it was accurate or not. In dealing with the case of Kishori Kishore Misra he said: We now come to this last accused against whom the prosecution has urged that there is more evidence than against any of the other accused persons. He is mentioned in the confession of Ganpat, but Chhidami could not select him out of the suspects in the identification parade.