2014 Supreme(Kar) 704

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N. KUMAR & RATHNAKALA, JJ.
High Court of Karnataka Represented by Registrar General, Bangalore – Petitioner
Versus
Syed Mohammed Ibrahim – Respondent
Criminal R.C. No. 3 of 2008, Criminal Appeal No. 1203 of 2008 & 24 of 2009
Decided On : 17.12.2014

Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Section 196: [N. Kumar & Mrs. Rathnakala, JJ] Sanction to prosecute - Alteration or addition of charge by Court - Whether fresh sanction is necessary? Held, The grant of sanction is an executive act. The validity of sanction cannot be tested in the light of the principles applied to quasi judicial orders. The test to be applied is, whether relevant material that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting the sanction. A sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is not a sufficient compliance. In order to make it a valid sanction it must be proved that sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction but this is not an essential requirement. Similarly, law does not require a sanction to be in any particular form. But, if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Sanction to prosecute is an important matter. It constitutes a condition precedent to the institution of the prosecution. The Government has an absolute discretion to grant or withhold their sanction.

        Court has the power to alter or add any charge at any time before judgment is pronounced. If for the offences which are the subject matter of such additional charge sanction is required, until such sanction is obtained the Court shall not take cognizance of such offence and proceed with the matter. However, the above provision carries an exception to this general rule. The exception is, if sanction had already been obtained for a prosecution, on the same facts as those on which the altered or added charge is founded, then no fresh sanction is required for prosecuting the accused for the offences which is the subject matter of the additional charge. It is clear the additional charges were framed on the same facts on which charges has been framed earlier. Since sanction had already been obtained for prosecution on the same facts as those on which the additional charges were also founded, no separate sanction was necessary in law.

       CODE OF CRIMINAL PROCEDURE, 1973 - Section 230: [N. Kumar & Mrs. Rathnakala, JJ] Examination of prosecution witness and production of document - Held, Section 230 Cr.P.C. dealing with fixing the date for prosecution evidence enables the prosecution to compel the attendance of any witness or the production of any document or other thing. In other words, by virtue of this provision, the prosecution can even examine a witness who is not cited in the charge sheet and produce a document which is not furnished along with the police papers, for the first time before the Court during the trial. The said power is to be harmonized along with the provision contained in Sections 173(8) and 173(5) as well as Section 209(c) of Cr.P.C.

       CODE OF CRIMINAL PROCEDURE, 1973 - Section 313: [N. Kumar & Mrs. Rathnakala, JJ] Object and intent of examination of accused - Held, The object of Section 313 Cr.P.C. is to give an opportunity to the accused to explain any circumstance against him in the evidence. It is intended to secure to the accused an opportunity to explain the evidence against him and therefore, to benefit the accused and not to operate as to his detriment. This section indicates that in every enquiry or trial with a view to enable the accused to explain anything against him in the evidence, (a) the Court may at any stage put questions to the accused, and (b) shall after the examination of all prosecution witnesses question him generally. No oath shall be given when the accused is examined by Court under Sub-section (1). Examination of accused cannot be in the form of cross-examination. A statement of accused recorded under Section 313 Cr.P.C. is not to be treated as evidence much less as a substantive piece of evidence. The act of examination of the accused under Section 313 is a solemn act of the Trial Court and should not be treated as an empty formality. The examination of the accused is a very important duty which should be performed with particular care and in the proper way.

       CODE OF CRIMINAL PROCEDURE, 1973 - Sections 366 & 374(2): [N. Kumar & Mrs. Rathnakala, JJ] Reference for confirmation of death sentence and appeals against conviction - Church Bomb blasts case in 2000 at St. Peter and Paul Church, JJ Nagar Main Road, Bangalore -Accused were members of Deendar Anjuman Association - Offences as to Conspiracy, waging war, sedition, creating disharmony between sections of public punishable under Sections 121, 121A, 124-A, 153-A, 295, 436, 427 read with Section 120-B of IPC and contravention of Explosives Act punishable underSections 3, 4 and 5 of Explosive Substances Act, 1908 and Section 5 r/w Section 9-B of Explosives Act, 1884 - Material showing at an undisputed point of time, it the intention behind this organization and its movement is to Islamize the whole of India, to preach that Allah is the only God and Hazarath Mohammad Paigamber is only the Jagadguru and to make all the people who are inhibitants of India to accept this view and to achieve the said purpose, they declared religious war - Defence plea as to double jeopardy - Held, Conviction for conspiracy by Special Court at Hyderabad in respect of a similar offence does not come in the way of conviction by Special Court at Bangalore for similar offence committed at Bangalore. The bar under Section 300 IPC does not apply. It does not amount to double jeopardy. Therefore, the sanction accorded is valid and legal and does not suffer from any infirmity. It is clear the additional charges were framed on the same facts on which charges has been framed earlier. Since sanction had already been obtained for prosecution on the same facts as those on which the additional charges were also founded, no separate sanction was necessary in law. Where a number of documents are made by a uniform process, example, printing, photography, cyclostyle or lithography, they are not copies in the legal sense of the term. They are all counter part originals and each is primary evidence of the contents of the rest, but only secondary evidence of the common original. In order to bring a case within explanation (2) of Section 62 of the Evidence Act, the whole document with the signature must have been made by one uniform process. Once the order itself shows that the sanctioning authority has applied HIS mind to the material on record; entered the witness box and deposed to that effect, the requirements of law are completely complied with. Confession of A-7 is admissible in evidence. However it could not be used against the co-accused unless there is corroborative evidence. When a direct witness has consistently identified the accused, both at the test parade and at the trial and before the test parade, his identification may safely be accepted. Merely because the identification parade conducted is defective, the judgment would not get vitiated, when other circumstantial and corroborative evidence is available on record to prove the identity of the accused.

        In this case, the evidence regarding search and seizure and the material objects which are seized, which are in the nature of books, literature, which dates back to 1920s is straight forward, consistent and specific and inspires confidence. There is nothing on record to presume that the police fed into the computers these incriminating materials and that is not what the accused have stated in the statement under Section 313 Cr.P.C. Unfortunately, the case of the accused is a complete denial in their statement under Section 313 Cr.P.C. Under Section 114(e) of the Evidence Act, the Court may draw a favourable presumption in respect of judicial and official acts, that they are regularly performed. Viewed from that angle, their evidence regarding search and seizure of the weapons from the accused is straight-forward, consistent and specific. The factum of search and seizure of the material objects and documents from the conscious possession of the accused has been established by the prosecution beyond any reasonable doubt. No fault could be found with recovery evidence as the same is proved at the instance of accused on the basis of evidence of I.O. We are satisfied that the prosecution has proved its case beyond reasonable doubt, the guilt of the accused in respect of the offences alleged against them. The finding of the Sessions Court holding the accused guilty of all the offences is based on legal evidence. There is no justification whatsoever to interfere with the well considered judgment of the Sessions Court and therefore we find no merit in this appeal. Sentence of life imprisonment to these accused should be an eye opener to such misguided elements in the Society. Therefore, there is no justification to interfere with the imposition of life imprisonment to the aforesaid accused. Conviction of accused were confirmed. Sentence of death of A-10 was modified to sentence of imprisonment for life. Sentence of imprisonment of other accused were confirmed.

       CRIMINAL TRIAL - Burden of Proof: [N. Kumar & Mrs. Rathnakala, JJ] Held, The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution as every man is presumed to be innocent. The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. The weakness of the defence can only be called as additional link to aid the prosecution. It is not the law that where there is nay infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted, by a Court. The accused merely has to cast a reasonable doubt in the prosecution case to be acquitted. The prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt or any evidence in defence is produced, the silence of the accused being of no consequence. In criminal cases, the main burden, i.e, of proving the guilt of the accused beyond reasonable doubt always rests on the prosecution and never shifts even though any statute provides for the drawing of some presumption against the accused in certain cases. The burden of proving guilty intention lies upon the prosecution where the intent is expressly stated as part of the definition of crime. The burden of proving intention or knowledge is on the prosecution and the burden is not on the accused of showing absence of knowledge. It is the duty of the Public Prosecutor to call every witness who can throw any light on the enquiry whether they support the prosecution theory or the defence theory.

       CONSTITUTION OF INDIA - Article 20(2): [N. Kumar & Mrs. Rathnakala, JJ] Double Jeopardy - Serial bomb blast cases - Accused were convicted by Special Court, Hyderabad for offence of conspiracy - Trial for similar offence before Special Court at Bangalore - Whether amounts to second trial and hit by Section 300 of IPC., Held, No. On facts, held, The charges framed in this case are pertaining to the conspiracies and other offences like 120-B, 121, 121-A, 124-A, 153-A, 295, 427, 436 IPC and also under the provisions of the Explosive Substances Act and Explosives Act. All these charges pertain to the offences committed by the accused within the State of Karnataka. The same is not the subject matter of charge No.1 to 3 in the case before the Hyderabad Court. In Hyderabad the charge was not under Section 120, 121, 121A. Charge was under Section 120B and other offences. Therefore, as the accused in this case were not tried for the same offence in the earlier proceedings, neither Article 20 (2) of the Constitution of India nor Section 300 of Code of Criminal Procedure, 1973 is attracted to the facts of this case. Therefore, the trial Court rightly held the trial in this case is not hit by the aforesaid provision.

       EXPLOSIVE SUBSTANCES ACT, 1908 - Section 7: [N. Kumar & Mrs. Rathnakala, JJ] Sanction under - Once the order itself shows that the sanctioning authority has applied his mind to the material on record; entered the witness box and deposed to that effect, the requirements of law are completely complied with. It should be borne in mind that the Court should not attach much importance to the perception of facts and law by the sanctioning authority. Perception varies from person to person. If the Court on perusal of the sanction order is satisfied that the legal requirements are broadly complied with and no prejudice is caused to the accused, it shall not brushed aside, such sanction order. Minor discrepancies are bound to occur when variety of men deal with matter.

       INDIAN EVIDENCE ACT, 1872 - Section 3: [N. Kumar & Mrs. Rathnakala, JJ] Accomplice Evidence - The word ’accomplice’ has not been defined by the Indian Evidence Act and should therefore be presumed to have been used in the ordinary sense. It means and signifies a guilty associate or partner in crime. In other words an accomplice is a person, who concurred in the commission of an offence. Thus the term accomplice in its fullness includes in its meaning all persons concerned in the commission of a crime, all participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree or merely as accessories before or after the act. But if the participation of accessories is limited to the knowledge that crime is to be committed, they are not accomplices. An accomplice should be a party to the crime. If he is not, he is not an accomplice.

       INDIAN EVIDENCE ACT, 1872 - Section 3: [N. Kumar & Mrs. Rathnakala, JJ] Panch witness - If panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person, who effected the recovery would not stand vitiated. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness.

        The statement of the investigating officer has to be reliable and so trustworthy that even if the attesting witnesses to the seizure turns hostile, the same can still be relied upon, more so, when it is otherwise corroborated by the prosecution evidence. Merely because the police witnesses have spoken about the search and the seizure of documents from the custody of the appellant, their version cannot be disbelieved as the independent witnesses have not supported the search and the seizure of the documents. The law on the point is well settled. Even if the panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person who effected recovery would not stand vitiated. All that is expected of the Courts is that the evidence of the police officials who are interested in the outcome or the result of the case needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give raise to any doubt about the credit worthiness.

       INDIAN EVIDENCE ACT, 1872 - Section 9: [N. Kumar & Mrs. Rathnakala, JJ] Test Identification Parade - Procedure and Evidentiary value - Held, A test identification parade basically consists of a line-up of people who have similar physical appearance for the purpose of identification of the accused by the eye witness within the scope of Section 9 of the Indian Evidence Act. The procedure to be followed in such identification parade is given in the Karnataka Police Manual Volume 2 in ss. 1359 - 1363. It is to be conducted by a Magistrate, as far as possible. If for any substantial reasons to be recorded in the case diary, the services of a competent Magistrate are not available the identification parade may be conducted by independent persons of the locality, not in any way connected with or concerned in the case. After making all arrangements for the parade, the Police Officers should completely efface themselves, leaving it to the Magistrate or the Panchayatdars to conduct the actual identification proceedings.

        The accused persons should as far as possible be mingled with persons of similar description, status, build and age in the proportion of a minimum of 1:5 and a maximum of 1:10, and they must be made to take their positions along with the persons with whom they are mingled up in a line. They should not be made to stand together. The Magistrate or other persons conducting the parade should satisfy himself or themselves that no Police Officer takes part in the actual identification proceedings and the witnesses are kept out of view from the premises where the parade is taking place and that it is not possible to communicate with them by signals or any other communication. Witnesses should then be called in, one by one, and they should be asked to go round the persons assembled for the parade and point out the accused, if any.

        If the identification is held by a Magistrate the proceedings should be drawn up and signed by him. If the identification is held by panchayatdars in the absence of a magistrate, the proceedings should be drawn up by one of the Panchayatdars and attested by all of them. Statements made by the identifying witnesses to the panchayatdars at the time of the identification should be recorded in the proceedings. Even if a witness makes a mistake, it should be recorded. In short, the proceedings must contain a complete record of what takes place in the identification parade.

        After the identification by one witness is over, care should be taken to see that the witness does not mingle or communicate with the other witnesses who are yet to identify the accused and others. In the next round there shall be reshuffling and the accused are made to take different positions. If the accused so desire, they should be allowed to change their dress also. The same procedure will be repeated in the case of other witnesses also. Any well- founded objection raised by the accused during identification parade should be recorded.

        When a witness identifies an accused in court, the court has to appreciate the evidence in the light of its intrinsic worth, other evidence, circumstances and probabilities. If the witness knew the accused previously it is a matter of recognition; if not, it is a matter of identification. Recognition of a familiar person is certainly more reliable than identification of a stranger. When a stranger witness identifies an accused in court, the court, by way of caution or prudence may seek some assurance before accepting the identification as correct. That assurance would be available from the positive result of test identification parade; however absence of test identification parade is not invariably fatal, for assurance may be available from other sources and circumstances.

        Value of test identification parade, as a corroborative piece of evidence, depends on the safeguards adopted in conducting it. Witness should not get an opportunity to see the accused; there must not be any situation in which witness could be prompted. Suspects must be mixed up among adequate number of non-suspects who are more or less similar in appearance to that of suspects and dressed more or less similarly. It must be arranged at the earliest possible opportunity. Value of test identify parade is determined by the effectiveness of precautions taken, expedition in conducting it and the attendant circumstances, Just as showing an accused to the witness just before the parade may undermine the value of the parade, showing photographs of the accused to the witness just before parade may have the same consequence.

        The whole idea of holding Test Identification Parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

        Therefore, before the identification parade, if the witness is shown the photographs of the accused to be identified, then the identification so made becomes meaningless, in which event the Court has to look to other corroborative evidence available on record. When a direct witness has consistently identified the accused, both at the test parade and at the trial and before the test parade, his identification may safely be accepted. Merely because the identification parade conducted is defective, the judgment would not get vitiated, when other circumstantial and corroborative evidence is available on record to prove the identity of the accused.

        The identification parade belongs to the stage of investigation. There is no provision in the Code, which obliges the Investigating agency from holding or conferring a right upon the accused to an Identification parade. The Court identification itself is a good identification in the eyes of law.

        It is not always necessary that court identification must be preceded by the Test Identification Parade. This depends upon the facts and circumstances of a given case. When a witness identifies an accused in the Court, the Court has to appreciate the evidence with reference to the law, intrinsic worth of such identification, other evidence on record, circumstances and the probabilities. When a stranger is a witness and identifies an accused in the Court, the Court by way of caution or prudence may seek some assurance before accepting such identification. That assurance would be available from the positive result of the test identification parade. However absence of test identification parade is not invariably fatal, for assurance may be available from other source and circumstance. Showing of a large number of photographs to the witness and then asking him to pick out the photograph of the suspect is also a recognised procedure.

       INDIAN EVIDENCE ACT, 1872 - Section 10: [N. Kumar & Mrs. Rathnakala, JJ] Doctrine of agency - Held, Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co- conspirators. But this section will come into play only when the Court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained is relevant against the others not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.

       INDIAN EVIDENCE ACT, 1872 - Sections 17-30 & Criminal Procedure Code, 1973 - Sections 162 & 164: [N. Kumar & Mrs. Rathnakala, JJ] Admission and Confession - Admissibility - Held, The expression "confession" has not been defined in the Evidence Act. `Confessions’ is a terminology used in the criminal law is a species of ’admissions’ as defined in Section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. Held, Sections 17 to 23 of the Indian Evidence Act deal with admissions whereas the law as to confessions is embodied in Sections 24 to 30 thereof and Sections 162 and 164 of Cr.P.C. Broadly speaking, confession is an admission made at any time by a person charged with crime, stating or suggesting an inference that he committed the crime. A confession or an admission is evidence against its maker if its admissibility is not excluded by some provision of law. Law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary. At that stage, the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the voluntariness of the person making it, the court may refuse to act upon the confession, even if it admissible in evidence.

        Whether a confession is voluntary or not is always a question of fact. A free and voluntary confession deserves highest credit, because it is presumed to flow from a heightened sense of guilt. The rule may therefore, be stated thus: While the evidence in proof of making of confession is always to be suspected, but once proved to have been made voluntarily, confession is one of the most reliable evidence in law. Section 25 of the Evidence Act bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate.

        Section 24 of the Evidence Act lays down the obvious rule that if it appears to the court that the confession was as a result of any inducement, threat or promise proceeding from a person in authority, it is liable to be excluded from evidence. Here the word ’appears’ connotes that such inducement, threat or promise need not be proved to the hilt and if the facts and circumstances emerging from the evidence make it reasonably probable that it was a result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it was to a Magistrate or a person other than police officer. Confession leading to discovery of a fact u/s 27 of the Indian Evidence Act is an exception to the rule of exclusion of confession made by an accused while in the custody of police. Section 30 provides for consideration of a proved confession affecting the person making it as well as the co-accused. This is briefly the scheme of the law of evidence vis-à-vis confessions.

        Section 162 of Cr.P.C. prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 Cr.P.C. makes it explicit that the embargo under this provision shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the provisions of Section 27 of the Evidence Act. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer.

        The evidence of confession of co-accused is not required to be given on oath, nor is given in the presence of the accused, and its veracity cannot be tested by cross-examination. Though the evidence of an accomplice is free from these shortcomings yet an accomplice is a person who having taken part in the commission of offence, to save himself, betrayed his former associates and placed himself on a safer plank-’a position in which he can hardly fail to have a strong bias in favour of the prosecution’ the position of the accused who has given confessional statement implicating a co-accused is that he has placed himself on the same plank and thus he sinks or sails along with the co-accused on the basis of his confession. For these reasons, in so far as use of confession of an accused against a co-accused is concerned, rule of prudence cautions the judicial discretion that it cannot be relied upon unless corroborated generally by other evidence on record.

        A plain reading of Section 30 of the Evidence Act discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly for the same offence); (iv) such a confession affects the maker as well as such persons who are being tried jointly for the same offence; and (v) such a confession is proved in Court. The Court may take into consideration such confession against the maker thereof as well as against such persons who are being jointly tried for the same offence. Voluntary confession, Judicial confession, Extra-Judicial confession, Retracted confession, Probative value of confession, corroboration explained.

       INDIAN EVIDENCE ACT, 1872 - Section 27: [N. Kumar & Mrs. Rathnakala, JJ] Recovery evidence - Held, Section 27 is considered to be an exception to the rules embodied in Sections 25 and 26. It enables certain statements made by a person in police custody to be proved. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. "Discovery of fact" cannot be equated to the object produced or found. It is more than that. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. The phrase ’distinctly related to the fact thereby discovered’ is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused, which is the direct and immediate cause of the discovery. It is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. In fact it is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery.

        The discovery of any fact referred to in Section 27 does not include mental or psychological fact, example, knowledge, i.e., the mental act of becoming aware of something or intention. The word ’fact’ is used in the sense of physical or material fact, which can be perceived by the senses and the discovery of such facts alone can eliminate the fear of confession being induced by improper inducing and confirming the truth of the information received from the accused. The word ’fact’ does not refer to mental fact. Section 27 comes into operation when some material object is produced from somewhere in consequence of some information given by the accused. But the fact discovery includes not merely the object found but also the place where it lay and the accused knowledge as to the place. The knowledge of the accused as to the place indicates that the discovery was due to the information received from him, i.e., he is the informant as contemplated in the Section. The fact discovery must be such that the proof of its existence does not depend on the credibility of the accused or any other person, but is confirmed by the production of the object itself, which can be perceived by the senses. Section 27 allows proof of such part of the information as it relates distinctly to the fact discovery.

       INDIAN EVIDENCE ACT, 1872 - Section 30: [N. Kumar & Mrs. Rathnakala, JJ] Proved confession - Held, Section 30 of the Evidence Act, which deals with consideration of proved confession affecting person making it and others jointly under trial for same offence, this Section says that when more persons than one are being tried jointly for the same offence and a confession, made by one of such persons affecting himself and some other of such persons, the Court may take into consideration such confession against the maker of the confession as well as against such other person when such a confession is proved in Court. A plain reading of Section 30 of the Evidence Act discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly for the same offence); (iv) such a confession affects the maker as well as such persons who are being tried jointly for the same offence; and (v) such a confession is proved in Court. The Court may take into consideration such confession against the maker thereof as well as against such persons who are being jointly tried for the same offence.

       INDIAN EVIDENCE ACT, 1872 - Section 62: [N. Kumar & Mrs. Rathnakala, JJ] Secondary evidence - Where a number of documents are made by a uniform process, example, printing, photography, cyclostyle or lithography, they are not copies in the legal sense of the term. They are all counter part originals and each is primary evidence of the contents of the rest, but only secondary evidence of the common original. In order to bring a case within explanation (2) of Section 62 of the Evidence Act, the whole document with the signature must have been made by one uniform process.

       INDIAN EVIDENCE ACT, 1872 - Section 65(f): [N. Kumar & Mrs. Rathnakala, JJ] Certified copy of confessional statement of co-accused - Held, It is admissible under Section 65(f), since the original is produced in another case.

       INDIAN PENAL CODE, 1860 - Sections 120-A & 120-B: [N. Kumar & Mrs. Rathnakala, JJ] Conspiracy - The offence of criminal conspiracy is of a technical nature and the essential ingredient of the offence is the agreement to commit an offence. "A conspiracy" consists, not merely in the intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. So long as such a design rests in the intention only it is not indictable. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. Consequently, even if the acts done by a conspirator in furtherance of the criminal conspiracy do not strictly amount to offence, he is liable to be convicted under Section 120-B. The gist of the offence is the bare engagement and association to break the law, whether any act be done in pursuance or furtherance thereof by the conspirators or not. In order to constitute a single general conspiracy, there must be a common design and common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not be knowing all its secrets or the means by which the common purpose is accomplished. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participants in the main theme and object of the conspiracy. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient.

       INDIAN PENAL CODE, 1860 - Section 120-B: [N. Kumar & Mrs. Rathnakala, JJ] Conspiracy - Proof as to - Held, Conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient under given set of circumstances of an individual case.

       INDIAN PENAL CODE, 1860 - Section 121: [N. Kumar & Mrs. Rathnakala, JJ] Waging war - Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does detract from the offence of waging war. There is no warrant for such truncated interpretation.

       INDIAN PENAL CODE, 1860 - Section 153-A: [N. Kumar & Mrs. Rathnakala, JJ] Promoting Enmity between different groups - Promoting enmity between different groups on grounds of religion, the Legislature contemplates that the words spoken or written which attempts to promote hatred, etc., would create sufficient mischief so as to fall within the scope of the section 153-A.

       JAMMU & KASHMIR CONSUMER PROTECTION ACT [16/1987] - JUDICIAL ACCOUNTABILITY: [N. Kumar & Mrs. Rathnakala, JJ] The judicial instrument has a public accountability. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ’of course, it is possible but not in the least probable,’ the case is proved beyond reasonable doubt. Under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. The evil of acquitting a guilty person light-heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general. They tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ’persons’ and more severe punishment of those who are found guilty. A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.