Zwinglee Ariel vs State Of M. P. - 1952 Supreme(SC) 80

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1952 Supreme(SC) 80

SUPREME COURT OF INDIA
3rd December 1952.
MAHAJAN, S.R. DAS AND BHAGWATI, JJ.
Zwinglee Ariel, Appellant
Versus
State of M.P.
Criminal Appeal No. 47 of 1952.
Advocates appeared
Shri Jai Gopal Sethi, Senior Advocate (Shri B. K. B. Naidu, Advocate, with him), instructed Shri Naunit Lal, Agent, for Appellant; Shri Jwala Prasad, Advocate, instructed by Shri G. H. Rajadhyaksha, Agent, for the State.

Advocates:
B.K.B.Naidu, G.H.RAJADHYAKSHA, J.P.CHOPRA, Jai Gopal Sethi, NAUNIT LAL

Headnote:Section423-Appeal against acquittal-Duty of High Court. Held: The High Court overlooked some of the well-known principles recognized in the administration of criminal justice as laid down by the Privy Council in Sheoswarup v. Emperor (A.I.R. 1934 P.C. 227)1 and repeated by this court for the guidance of appellate courts in dealing with an appeal against acquittal. The learned judges did not appear to have kept in view that the order of acquittal had strengthened the presumption of innocence in favour of the appellant and that he was entitled to the benefit reason able dooubt. - Sections 25, 2 statement by accused on being halted to Police Officer Not admissible.
Held: "It is clear that the appellants statements in reply are not admissible at all under S. 8, Evidence Act. If these alleged statements are, to be regarded as confessions then they will be hit by S. 25, Evidence Act, for they were made to Pande, the Police Officer, who Was there. If they are sought to be brought under S. 26 as confession made in the immediate presence of the magistrate then also they will not be admissible in evidence in that they were not recorded by the Magistrates in the manner prescribed by S. 164, Criminal Procedure Code." (per Das J.) - Section 101-Conduct of accused-Silence-Criminal Procedure Code (1898), Ss 144, 286.
Held: "If" however, the prosecution evidence as a whole is unreliable .and cannot be accepted as correct as held by the learned Additional Sessions Judge for specific reasons given by him, the conduct of the appellant can be of no avail to the prosecution, for such conduct of silence can never be permitted to become a substitute for proof by the prosecution. The substantive prosecution evidence being rejected as unworthy of credit, the alleged conduct must be referable to some innocent reason. Different persons react in different ways in similar circumstances and in the absence of satisfactory evidence the court ought not to treat the case as positively proved beyond reasonable doubt only by reason of the appellants failure to put up his defence immediately when he was confronted with the three notes. Taking all the surrounding circumstances into consideration and in view of the unsatisfactory evidence adduced by the prosecution we think that the learned Additional Sessions Judge rightly extended the benefit of doubt to the appellant."

Judgment

S. R. DAS J. : This is an appeal against the decision of the High Court of Judicature at Nagpur dated 20-9-1950, setting aside the order of acquittal passed by the Additional Sessions Judge, Nimar-Khandwa, on 9-1-1950 and convicting the appellant of an offence under S. 161, Penal Code and sentencing him to 9 months rigorous imprisonment and a fine of Rs. 200 or, in default of payment of fine, to a further term of the three months of rigorous imprisonment.

2. One Shri Digvijay Singh, a minor, is the Malguzar and Muafidar of several villages including Amba, Selda and Balabad, which have extensive forest areas appertaining thereto. His mother Shrimati Rajendra Kumaribai is his guardian and manages his estate on his behalf with the assistance of one Radha-Krishna, who gets a salary of Rs. 600 per annum. The estate owns a bunglow known as Bedia Bungalow at Khandwa, half of which is occupied by Dr. S. M. A. Rahman, Civil Surgeon, and the other half by Shri Durga Narain Singh (husband of the sister of the minor s deceased father). Shri Rajendra Kumaribai used to stay with Durga Narain Singh at Bedia Bungalow whenever she used to go to Khandwa.

3. On 23-7-1946 four applications were made on behalf of the minor under S. 202, Central Provinces Land Revenue Act - three of them being for permission to cut the forest growth in those three villages and the fourth one for permission to cultivate the forest area of village Amba. These applications were sent by the Deputy Commissioner to the Divisional Forest Officer, Khandwa, for report. Between August 6 and August 13, 1947 the Divisional Forest Officer in his turn forwarded the said applications for report to the appellant who was then the Range Officer.

4. The prosecution case is that on 26-10-1947 the appellant came to Bedia for inspecting the forests at Amba which he did in the company of one Pratab Singh the brother of Shrimati Rajendra Kumaribai. On 27-10-1947 he was invited to the house of the minor at Bedia and was given tea there. While taking tea the appellant told Radhakrishna that he would see the forest of Selda after a day. He also said that the area of the forest was large and that they would have to pay Rs. 500 to him. Radhakrishna informed Shrimati Rajendra Kumaraibai about the talk and the later asked him to go Khandwa, collect rent and pay something to the appellant. Radhakrishna accordingly went to Khandwa and on 5-11-1947 collected Rs. 200 in currency notes of Rs. 100 each from Dr. S. M. A. Rahman, the tenant of Bedia Bungalow at Khandwa, on account of rent and on the same day paid that amount to the appellant when the appellant put forward his demand for the balance of Rs. 300. On 7-11-1947, Radhakrishna again saw the appellant and the latter again told him that Rs. 200 was not enough and asked him to send a reply on this point between November 9 and 18.

As Radhakrishna was leaving, the appellant asked him to send Durga Narain Singh as he wanted to talk to him. Later in the evening Radhakrishna informed Durga Narain Singh that the appellant had wanted to see him and also related to Durga Narain Singh about the payment of Rs 200 and the talk relating to that matter. Radhakrishna returned to Bedia on 13-11-1947 and informed Shrimati Rajendra Kumaribai about what had transpired between him and the appellant at Khandwa. In the meantime Durga Narain Singh saw Shri Kekre, Sub-Divisional Officer of Khandwa, and revealed to him the whole position. Shri Kekre outlined a programme for entrapping the appellant. Durga Narain Singh accordingly wrote to Shrimati Rajendra Kumaribai and she eventually came to Khandwa on or about 25-11-1947 and stayed at the Bedia Bungalow with Durga Narain Singh.

She asked Radhakrishna to arrange for Rs. 300. Radhakrishna brought Rs. 300 in three hundred rupee notes which were handed over to Durga Narain Singh. With these notes Durga Narain Singh saw Shri Kekre who took him to Shri Deo, the Additional District Magistrate and the three of them went t

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