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Shanker v. Emperor
Factual and Procedural Background
This is an application in revision against an appellate order which dismissed the appeal of the accused (Shanker) and upheld his conviction and sentence under Section 451, Indian Penal Code. The appellate court's entire judgment was the short statement: "The case has been carefully tried, and after examining the evidence I am fully satisfied that Shanker, appellant, took part in the burglary. The appeal is dismissed."
The accused had been tried jointly with three co-accused. He was not named in the first information report and was arrested about a week after the offence. The principal prosecution evidence included: (a) the confession of a co-accused Khairati (who pleaded guilty), (b) a retracted confession by another co-accused Sita Ram, (c) witness testimony placing the accused near the scene (including one witness who said he saw the accused on a roof), and (d) a goldsmith's evidence that the accused attempted to sell ornaments similar to those produced from the confessing accused's custody. The accused produced 11 witnesses and advanced a fourfold defence (see Arguments section).
The revisional Court was asked to consider (inter alia) whether the appellate judgment complied with Section 367 of the Criminal Procedure Code (CrPC) and whether the confessions of co-accused persons were admissible and appropriately used in the joint trial. After analysis, the revisional Court ultimately upheld the conviction on the other materials but reduced the sentence to the period already undergone, set aside the fine, and ordered the accused's immediate release (with refund of any fine paid).
Legal Issues Presented
- Whether the appellate court's brief judgment complied with Section 367 of the Code of Criminal Procedure (requirement that a judgment state the points for determination, the decision thereon and the reasons for the decision).
- Whether a co-accused's plea of guilty and the resulting confession (Khairati) was admissible and could be used as evidence against a co-accused who was not convicted on that plea.
- What weight, if any, should be given to a retracted confession (Sita Ram) where the declarant alleges the statement was made under coercion by police.
- Whether, in light of the record as a whole and the procedural circumstances (including the accused's time already spent in custody), the conviction should be set aside, retried, or the sentence altered.
Arguments of the Parties
Appellant's Arguments
- The appellate judgment was legally defective because it failed to comply with Section 367 CrPC — it did not set out the points for determination, the decision on each point, and the reasons for those decisions.
- The confession of co-accused Khairati was inadmissible (or improperly used) against the appellant because Khairati had pleaded guilty when the charge was read to him and the trial judge did not immediately convict him; the appellant argued this procedure prejudiced his right to proper confrontation/cross-examination and may have rendered the confession unsuitable for use against him.
- The retracted confession of Sita Ram was claimed to be the product of coercion and thus its weight and admissibility were questioned.
- On the merits the appellant advanced a fourfold defence supported by 11 witnesses: (a) he had been beaten by police officers some weeks before arrest and had complained and filed a complaint that was sub judice (suggesting police motive to frame him), (b) enmity with a person named Bhajja Master who might have aided police in incriminating him, (c) an alibi, and (d) denial that he was an associate of the other accused.
- The appellant's counsel relied on commentary (Woodroffe and Ameer Ali) and various authorities to support contentions about the proper treatment of a co-accused's plea of guilty when several accused are tried jointly.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kanhai Singh v. King-Emperor | Authority where a brief judgment of the type under challenge was held to be illegal (single-Judge decision). | The court noted this single-Judge authority was cited by the applicant's counsel but distinguished it because it was singly decided and facts in that matter differed; it did not lead the court to declare the present appellate judgment illegal. |
| Queen-Empress v. Pandeh Bhat | Full Bench holding that a brief remark by a Sessions Judge ("I have perused the record and see no cause for interference...") complied with the letter of Section 367 CrPC. | The revisional Court relied on this Full Bench authority to conclude the brief appellate judgment could not be said to be illegal, even though the Full Bench discouraged such brevity and urged fuller reasons in complicated criminal appeals. |
| Queen-Empress v. Pirbhu | Illustrative authority where an accused was convicted by the Sessions Judge on his plea of guilty (relevant to whether a confession/plea, once accepted and convicted, can be used against co-accused). | Used to show examples of trials where pleas of guilty were accepted and conviction recorded, supporting the proposition that if convicted on plea, the co-accused ceases to be tried jointly and their confession should not typically be used against others. |
| Emperor v. Kheoraj | Case where a co-accused (Chidda) had been actually convicted on his plea of guilty (though sentence deferred), again relevant to rules about use of confessions of co-accused. | Referenced to illustrate judicial practice where pleas of guilty led to conviction, and thereby constrained the use of such confessions against co-accused tried jointly. |
| Queen-Empress v. Paltua | Principle (as noted by Henderson, J.) that if a court does not convict an accused on his plea of guilty, his trial continues and his confession may be considered under Section 30 of the Indian Evidence Act against other jointly tried persons. | The court cited this passage to support the conclusion that the Sessions Judge's refusal to convict Khairati on his plea did not in itself make Khairati's confession inadmissible against Shanker; however, the court also noted the accused was thereby deprived of a chance to cross-examine Khairati as if he had been produced as a witness after conviction. |
Court's Reasoning and Analysis
The revisional Court addressed the issues step-by-step as follows.
- Compliance with Section 367 CrPC: The Court observed that Section 367 requires that a judgment state the points for determination, the decision thereon and the reasons. The appellate judgment's brief statement that the judge was "satisfied" the accused took part in the burglary raised the question whether that constituted adequate "reasons." The Court acknowledged that in very simple cases such a statement might suffice, but in complicated cases involving multiple questions of law and fact a mere statement of satisfaction is generally insufficient.
- Factual complexity and adequacy of reasons: The Court examined the factual matrix: joint trial with three co-accused, late arrest, reliance on a co-accused's confession and a retracted confession, multiple eyewitnesses, the goldsmith's evidence, and an extensive defence with 11 witnesses and eight grounds of appeal at the Sessions Judge. Given this complexity, the Court found the appellate judgment unsatisfactory and deprecable for its brevity.
- Precedential comparison: The Court considered a single-Judge decision (Kanhai Singh) condemning brief judgments but noted a Full Bench decision (Queen-Empress v. Pandeh Bhat) which held that a short remark could comply with Section 367. On that authority the Court held that the appellate judgment could not be declared illegal, while reiterating that such brevity was discouraged.
- Admissibility and effect of Khairati's plea/confession: The Court analysed the procedure when Khairati pleaded guilty. It accepted that it might have been preferable for the Sessions Judge to convict Khairati on his plea (particularly given prior confessions recorded under Section 164 and before the committing magistrate) and to then call him as a witness. However, under Section 271(2) CrPC the Court is required only to record a plea of guilty and conviction on a plea is discretionary. Because the judge did not convict Khairati on his plea, Khairati's confession could be considered under Section 30 of the Indian Evidence Act as against jointly tried co-accused. The Court also observed that by not convicting Khairati, the accused lost the opportunity to cross-examine him as a witness called after conviction.
- Retracted confession of Sita Ram: The Court recounted that Sita Ram had retracted his earlier statement, alleging it was made under coercion, threats and promises by a Sub-Inspector; he specifically implicated Shanker only after such alleged pressure. The revisional judgment found there was no issue about admissibility of Sita Ram's statement but that its weight was questionable. The Sessions Judge's judgment did not indicate how much weight had been given to this retracted confession.
- Overall assessment and remedial balancing: Considering the cumulative circumstances — problematic brevity of the appeal judgment, the mixed evidence for and against the accused, the substantial defence evidence, and the procedural issues regarding use of confessions — the Court found the disposal of the appeal unsatisfactory. Nonetheless, because the accused had already been detained for nearly seven months and had no relevant prior convictions, the Court decided it would be unfair to order a retrial. Balancing fairness and the record, the Court chose to uphold the conviction on other materials but to mitigate punishment by reducing the sentence to the period already served and setting aside the fine.
Holding and Implications
Core Ruling: The revisional Court upheld the conviction of the accused but reduced his sentence to the period already undergone in custody and set aside the fine; the accused was ordered to be released forthwith and any fine paid was to be refunded.
Direct consequences:
- The conviction stands; no retrial was ordered.
- The period of imprisonment was reduced to time already served (approximately seven months), and the monetary fine was set aside and to be refunded if already paid.
- The accused was to be released immediately.
Broader implications: The Court did not declare the appellate judgment illegal, relying on Full Bench authority, but formally expressed disapproval of brief judgments in complex criminal appeals and urged fuller reasons by Sessions Judges in such cases. The opinion did not purport to establish a new legal precedent beyond applying existing authorities to the facts before it.
1. This is an application in revision from an order dismissing the appeal of the accused and upholding his conviction and sentence under S. 451, I.P.C The judgment of the appellate Court is as follows:
The case has been carefully tried, and after examining the evidence I am fully satisfied that Shanker, appellant, took part in the-burglary. The appeal is dismissed.
2. This judgment, with the exception of giving a revisional Court an idea that the accused was charged with an offence of burglary, does not show anything more. The first point taken in revision is that this judgment is not in accordance with law inasmuch as it does not comply with the provisions of Section 367 of the Cr PC. That section requires that a judgment shall contain the point for determination, the decision thereon and the reasons for the decision. The dismissal of the appeal was not a summary one under S. 421 to which case S. 367 would not have applied. The dismissal was after it had been admitted under S. 422. S. 424, then made the provisions of S. 367 applicable.
3. The question whether the expression “I am satisfied that the accused took part in the offence” amounts to giving reasons for the decision, is a difficult question to answer in the abstract. It is obvious that in simple cases where the facts are clear no further reason than that the evidence is accepted by the Judge may be strictly required. In complicated cases; however, specially when there are more Chan one question, both of law and fact, arising, a mere statement of this kind will have to be accepted with difficulty as amounting to a reason for the dismissal of the appeal.
4. In the present case the accused was put on his trial along with three other co-accused persons. He had not been named in the first information report and he was not arrested till a week after. The evidence against him consisted mainly of the confession of a co-accused Khairati who had pleaded guilty and the retracted confession of another co-accused Sita Ram. There were other witnesses also who deposed to having seen him at particular places near about the house where the burglary was committed and in fact one of the witnesses deposed to having seen him on the roof of a house in that lane. There was also the evidence of one goldsmith that the accused after the burglary had gone to him to sell certain ornaments which were similar in appearance to certain articles discovered from the custody of the confessing accused and produced in Court. As against this evidence the accused produced no less than 11 witnesses and his defence was fourfold. In the first place, he proved that two or three weeks before his arrest he had been beaten by some of the constables of his police circle against whom he had complained to the Superintendent of Police and then ultimately filed a complaint in the criminal Court which was then sub-judice. He produced medical evidence to show the injuries on his person, and it was suggested on his behalf that the police officers bad got him implicated in order to handicap him in the prosecution of his been and in order to have a revenge on him. He next tried to prove his enmity with Bhajja master who he suggested had helped the police in incriminating him. In the third plice, he led evidence to establish his albi, and, in the fourth; place he led evidence to show that the prosecution story that he was an associate of the other co-accused was untrue.
5. The learned Assistant Sessions Judge discussed the evidence in great detail and examined it carefully. He has devoted several type-written, pages, to the case for and against the accused. There was a further legal question as to whether when Khairati on the charge being read over to him had pleaded guilty the learned Assistant Sessions Judge acted properly in not convicting him there and then, but continuing a joint trial and using his previous confession as evidence against Shanker also. In the memorandum of appeal filed before the learned Sessions Judge no less than eight grounds were taken. Having regard to all these circumstances it does appear that the judgment passed in appeal is, to say the least, unsatisfactory. Judgment of an appellate Court ought to contain particulars so as to satisfy the revisional Court that the case has been examined from every aspect.
6. My attention has been drawn by the learned advocate for the applicant to the case of Kanhai Singh v. King-Emperor (1) where a learned Judge of this Court held that a brief judgment of this kind was illegal. That was a judgment passed in a connected case and fuller facts were mentioned in the other case. There were also notes of arguments attached; But that, however, is a single-Judge case and I am not sure whether the attention of the learned Judge was, drawn to an earlier Full Bench case of this Court: Queen-Empres v. Pandeh Bhat (2). In this Full Bench case all that the Sessions Judge had remarked as regards the conviction was: “I have perused the record and see no cause for interference with the finding of the District Magistrate.” The Full Bench came to the conclusion that this was in compliance with the letter of S. 367. I am, therefore, constrained to hold that the judgment before me can also not be said to be illegal. But the learned Judges constituting the Full Bench discouraged such judgments and hoped that Sessions Judges, in these provinces would in criminal appeals, which raised complicated questions of fact and law, write fuller judgments dealing with such questions. I also cannot refrain from deprecating judgments of the type before me.
7. The next point urged on behalf of the applicant is that the confession of Khairati was inadmissible. When the charge was read over to Khairati, he at once pleaded guilty, and admitted the facts implicating himself. I agree that it would have been more satisfactory and proper if the learned Assistant Sessions Judge had convicted Khairati on his own plea of guilty particularly as there was a, previous confession of his both under S. 164 and before the committing Magistrate. No reasons were given why this plea of guilty was not accepted. Nor does it appear that there existed any good reason. At the same time, under S. 271, sub-S. (2), all the; is incumbent on the Court is to record his plea of guilty. It is not obligatory on the Court to convict him thereon. The conviction on a plea of guilty is discretionary. If therefore the learned Assistant Sessions Judge did not choose to convict Khairati on his own plea of guilty, it would be difficult to say that his procedure was in contravention of that sub-section.
8. The learned advocate for the applicant has relied on a passage in the Commentary on the Indian Evidence Act by Messrs Woodroffe and Ameer Ali under S. 30, where the learned authors have remarked:
When one of several prisoners pleads guilty, the proper course for the Court before whom, the ??? of the others is pending is to sentence him and either to put him aside or to remove him from the dock and call him as a witness, but it is improper to leave him in the dock un-convicted merely to see what the evidence will show.
9. This view is based on certain judgments of the Madras High Court. So far as the cases of this High Court are concerned, they are to the effect that where the Court accepts the plea of guilty and convicts the accused on his plea of guilty, his confession should not be used as evidence against his co-accused because he ceases to be tried jointly along with them. The case of Queen-Empress v. Pirbhu (3) was a case where a learned Sessions Judge had convicted Pirbhu Singh and Kishna on their plea of guilty, as appears from the original paper-book sent for by me. Similarly in the case of Emperor v. Kheoraj (4), Chidda had been actually convicted by the Judge on his plea of guilty though this conviction was deferred till the conclusion of the trial. It was pointed out by Henderson, J., in the case of Queen-Empress v. Paltua (5), that,
If the Court does not convict an accused person on his plea of guilty, his trial dots not terminate with his plea and, therefore, a confession by him may be taken into consideration under Section 30 of the Indian Evidence Act as against any other person who had been jointly tried with him of the same offence.
10. At the same time one cannot lose sight of the fact that if Khairati, whose confession is very damaging to the applicant, had been convicted on his plea of guilty and had then been produced as a witness for the prosecution, the accused would have had ample opportunity to cross-examine him of which he has been deprived by the procedure adopted by the learned Assistant Sessions Judge. As regards the confession of Sita Ram. I have already remarked that it was a retracted confession. When Sita Ram was questioned by the Judge about his previous statement, he alleged that it had been made under coercion and threat by the police. With regard to the implication of Shanker he stated that the second officer took him aside and said that he should name Shanker as the man who-had given him the ornaments, that when, he refused to do so the Sub-inspector then assured him that he would get him off if he were to state that he had received the ornaments from Shanker and, that the Sub-Inspector threatened him that if he did not do as directed he would take him to the thana and torture him and have him beaten with a broom-stick by some sweeper in an insulting manner, and that therefore out of fear he agreed to implicate Shanker. The learned Sessions Judge's judgment does not indicate how far he has been influenced by the retracted confession of Sita Ram. There can be no question as to the admissibility of Sita Barn's statement. The only doubt that there could be would be as to its weight.
11. Having regard to these circumstances, I am of opinion that the disposal of the appeal of the accused has not been satisfactory. But as the accused has already been in jail for nearly seven months, it would be unfair to set aside the conviction and order a re-trial. He has had no previous conviction for any offence under Chapters 12 and 17 of the Indian Penal Code. After some hesitation I have come to the conclusion that the best order to pass in this case is to uphold his conviction on the other materials on the record, but to reduce, his sentence to the period already undergone and set aside the sentence of fine. The accused will be released forthwith and the fine, if paid, will be refunded.
12. Sentence reduced.
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