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Kishori Kishore Mishra v. Emperor Opposite Party.
Case Summary — Appeal concerning conviction of Kishori Kishore Misra
Factual and Procedural Background
Four accused were tried before the Additional Sessions Judge of Asansol with a jury. By a unanimous verdict the jury found Ganpat Sonar, Kishori Kishore Misra and Chhidami Sukul guilty under Section 395, Indian Penal Code (dacoity), and found Pandit Kishen Prosad Tewari not guilty. The jury also found Kishori Kishore Misra guilty under Section 465, I.P.C. The judge accepted the verdict and sentenced Kishori Kishore Misra and Chhidami Lal to ten years' rigorous imprisonment each and Ganpat Sonar to five years' rigorous imprisonment. Kishori Kishore Misra alone appealed.
The substantive incident giving rise to the prosecution occurred on 9 January when a village chowkidar brought Priya Nath Roy to persons purporting to be the Sub-Inspector and Inspector of Raneegunge, who asked to see his gun licence and then had him fetch his gun and cartridges. The men then purported to make searches, produced revolvers, held up Priya Nath and companions, entered Tarak Nath Roy's house, broke open boxes and took property; one of the men gave Priya Nath a receipt for the gun (Exhibit 11). After the men left Priya Nath realised they were not police but dacoits and informed the police.
The defence at trial was that all the accused except Chhidami were innocent and knew nothing about the incident. Chhidami and Ganpat each made confessions that implicated some other accused persons. In charging the jury the trial judge dealt with these confessions as matters of law and told the jury that his preliminary ruling that the confessions were voluntary was binding on them for purposes of assessing their truth and weight.
Legal Issues Presented
- Whether the trial judge's direction to the jury that the voluntariness of confessions (as bearing on admissibility) was finally decided by the judge and therefore binding on the jury when assessing truth and weight, was a correct statement of law.
- Whether statements in the trial judge's charge about the appellant being mentioned in a co-accused's confession, and the effect of the identification parade evidence, were accurate and relevant to the jury's assessment.
- Whether the procedure followed under Section 73, Evidence Act (directing a person to write words or figures for comparison), could be satisfied by one magistrate delegating to another magistrate to obtain a specimen writing when the accused was not in the Court of the second magistrate.
- Whether the trial judge ought to have given a more careful warning to the jury about the reliability and weight to be attached to handwriting expert evidence.
- Given the above issues, whether the conviction and sentence of the appellant should stand or be set aside and whether retrial was appropriate.
Arguments of the Parties
Appellant / Defence Arguments
- All accused except Chhidami were innocent and knew nothing about the incident.
- The trial judge's statement that the appellant was mentioned in Ganpat's confession was inaccurate or at least in considerable doubt; the record did not clearly connect Kishori Kishore Misra with the names used in confessions (e.g., Kishori Prosad or Ganti).
- The magistrate who conducted a pre-commitment enquiry had no power to ask another magistrate (not sitting as a court) to direct an accused to write a specimen for comparison; reliance was placed on the wording of Section 73, Evidence Act.
- The judge should have given the jury a more careful warning about the handwriting expert evidence (its reliability and how carefully they should weigh it).
Crown / Prosecution Arguments
- The prosecution pointed out passages in Ganpat's confession that could be read as referring to the appellant under another name (e.g., Kishori Prosad or Ganti), and argued it was possible the appellant was so mentioned.
- It was argued for the Crown that the court in question was the magistrate holding the enquiry and therefore must be taken to have directed the accused to write, even if the direction was carried out before another magistrate; this was advanced in support of the procedure used under Section 73.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kasimuddin v. Emperor, 1934 Cal 853 | Distinction between admissibility (for judge to decide as a preliminary question) and proof/weight (for the jury to consider when assessing truth of confession). | The court treated Kasimuddin as authoritative: it held that while admissibility is for the judge, after a confession is admitted the jury must be free to consider voluntariness in relation to truth; the trial judge's direction that the jury were bound by his finding on voluntariness was a serious misdirection. |
| Azimuddy v. Emperor, 1927 Cal 17 | Interpretation that the word "person" in certain statutory contexts dealing with accused persons does not necessarily include the accused. | The court relied on this decision in expressing doubt whether Section 73's reference to a "person" necessarily includes an accused; the case was cited to support caution about extending Section 73 to the procedure adopted. |
| Emperor v. Nga Tun Hlaing, 1924 Rang 115 | Authority supporting the view that Section 73 may include an accused person (as cited by Jack, J.). | Jack, J. noted this authority (together with Ramrao Mangesh) would incline him to hold Section 73 includes the accused, but he expressly stated there was no need to decide that point in the present case. |
| Emperor v. Ramrao Mangesh, 1932 Bom 406 | Authority supporting the view that Section 73 may include an accused person (as cited by Jack, J.). | Jack, J. cited this case as supporting his inclination to hold that Section 73 includes an accused, but the point was not decided because it was unnecessary to the disposition of the appeal. |
Court's Reasoning and Analysis
The court's analysis focused primarily on the trial judge's directions to the jury about confessions and several attendant procedural and evidentiary questions:
-
On confessions: The court held that the trial judge's instruction — that he had decided the confessions were voluntary and that the jury were bound by that decision and should consider them on that basis when determining their truth and weight — was a serious misdirection. The court relied on the reasoning in Kasimuddin v. Emperor to emphasize the legal distinction:
- Admissibility of a confession is a preliminary question of law for the judge to decide (whether it may be received into evidence).
- After admissibility is resolved and the confession is in evidence, the jury must independently assess voluntariness as it bears upon credibility and truth; this is an issue of fact for the jury and cannot be withdrawn from them by the judge's earlier ruling.
- On alleged inaccuracies in the judge's charge: The court examined the judge's statement that the appellant was mentioned in Ganpat's confession. The appellate court found no clear evidence in the record that Kishori Kishore Misra was the person to whom Ganpat referred (Ganpat referred to "Kishori Prosad" and "Ganti alias Kishori Prosad"), and there was no evidence identifying the appellant with the name "Ganti." Although the prosecution pointed to portions of the confession that might allow an inference, the court found the matter doubtful and concluded the trial judge's statement was at least of questionable accuracy. The court noted also that Chhidami failed to identify Kishori in an identification parade.
- On Section 73 and handwriting specimens: The appellant challenged the practice of having one magistrate direct that a specimen writing be obtained by another magistrate before whom the accused was not present. The court expressed doubt whether Section 73 — which permits a court to direct any person present in court to write words or figures for comparison — authorizes delegating that direction to another magistrate not sitting as the court, or to do so at a time when the accused was not in court. The court stated it was unnecessary to decide the point finally, but it expressed the view that Section 73 likely contemplates the court in which the person is then present making the direction. The court also cited Azimuddy v. Emperor to indicate that the statutory word "person" may not necessarily include the accused in contexts concerning accused persons.
- On handwriting expert evidence and its weight: The court acknowledged an argument that the judge should have given the jury a more pointed warning about the handwriting expert's evidence. It concluded, however, that assessment of an expert's reliability is primarily for the jury once the expert has given evidence and the Judge has explained the relevant points. The court observed that views on handwriting evidence vary and that the jury, after explanation, are best placed to decide whether and to what extent to rely upon it.
- Ultimate effect of the misdirection on the verdict: The court observed that the misdirection on voluntariness could have materially affected the jury's decision. If, after a proper direction, the jury had rejected the confessions as not voluntary or not truthful, the only other evidence against the appellant would have been the receipt (Exhibit 11), and the question whether the appellant had given that receipt turned entirely on the handwriting expert's evidence. Given that the remaining evidence against the appellant depended solely on the expert, the court concluded the conviction could not safely stand.
- Remedy and disposition: Because there was effectively no admissible, reliable evidence apart from the handwriting expert, the court concluded that a retrial was not worth pursuing and set aside the conviction and sentence, acquitting the appellant outright.
Holding and Implications
Holding: The court ordered that the appellant's conviction and sentence be set aside and the appellant be acquitted. In the court's words, the conviction "cannot be allowed to stand" and the appellant was acquitted.
Direct effect on the parties: The conviction and sentence of Kishori Kishore Misra were quashed and he was acquitted. The court declined to order a retrial in view of the absence of evidence against him other than the handwriting expert's opinion.
Implications: The opinion reiterates and applies the established legal principle (as explained in Kasimuddin v. Emperor) that while the judge rules on admissibility of a confession, the jury must be free to consider voluntary character and credibility of a confession when deciding truth and weight. The court's decision reversed the conviction on the basis of misdirection and the resultant insufficiency of the remaining evidence against the appellant. The opinion does not purport to establish a new rule of law beyond the application of existing authorities; it addresses the particular evidentiary and procedural failings in this trial and their effect on the safety of the conviction.
Concurrence
Justice Jack concurred in the result. He added that, had it been necessary to decide the point, he would have been inclined to hold that Section 73 includes the accused, citing Emperor v. Nga Tun Hlaing (1924 Rang 115) and Emperor v. Ramrao Mangesh (1932 Bom 406) as supportive authorities; however, he agreed that the conviction and sentence should be set aside and that the appellant should be acquitted.
Source: Summary based exclusively on the provided opinion text. No information has been added beyond what appears in that text.
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. 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.
4. Now, so far as we can ascertain, this appellant is not mentioned in the confession of Ganpat. The learned Advocate appearing for the Crown has drawn our attention to various statements in the confession which go to show that it is possible that he did mention this appellant, but under another name. The difficulty is that Ganpat referred to Kishori Prosad and not Kishori Kishore Misra. He also referred to Ganti alias Kishori Prosad. Now, Chhidami in his confession referred to himself as Kishori Prosad alias Chhidami and there is no evidence in this case to identify Kishori Kishore Misra with Ganti. If there had been such evidence, of course it would have been open to the Crown to argue that there was sufficient to show that Kishori, as mentioned in Ganpat's evidence, is the same person as Kishori Kishore Misra. It is true that in the record of proceedings he has been styled Kishori Kishore Misra alias Ganti, but I can find no evidence in the record connecting Kishori Kishore Misra with the name Ganti. That being so, there is considerable force in the argument of the learned Advocate for the appellant that the statement of the learned Judge with regard to Ganpat's confession was not accurate. At any rate, there is very considerable doubt about it. In addition, there is the fact that Chhidami failed to identify Kishori when he was included among a number of suspects in the identification parade. Other points raised by the learned Advocate for the appellant were, that there was no power in a Magistrate making an enquiry prior to commitment to ask some other Magistrate to direct an accused person to make a specimen of his handwriting for comparison with other handwritings in the case. Section 73, Evidence Act, provides that the Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
5. It is argued on behalf of the Crown that the Court in this case was the Magistrate holding the enquiry, and he must be taken to have directed the accused to write but to do so before the other Magistrate. It is unnecessary for us to decide this point. But I have no doubt whatever that such a procedure does not come within the terms of Section 73, Evidence Act. I think that where the section says that the Court may direct any person present in Court to write, it must mean that where the accused is in Court, the Judge presiding in that Court may there and then ask him to write something for the purpose of enabling the Court to compare his writing with some other writing, and that the procedure of delegating to another Magistrate, not sitting as a Court, to take such a writing from the accused when the accused is not in Court nor standing his trial in Court does not come within the provisions of the section. Further, I have considerable doubt whether Section 73 refers to an accused person at all. Upon this point the decision in Azimuddy v. Emperor 1927 Cal 17, shows that the word 'person' when used in a section of an Act dealing with accused persons does not necessarily include the accused.
6. A further point taken by the learned advocate for the appellant was that the learned Judge ought to have given a more careful warning to jury about the evidence of the handwriting expert, and that he ought to have told the jury that they should very carefully weigh this part of the evidence. There is not much force in this part of the learned advocate's argument, because it is the duty of the jury carefully to consider and weigh all the evidence in this case. The question of reliability of the evidence of an expert in handwriting is clearly one for the jury to decide Some people including Judges have great faith in this kind of evidence, while others take the view that it is seldom reliable. On such a question the jury, after having all the points explained to them by the Judge and by the expert, are in a position to decide whether they think that they ought to rely upon the evidence or not. The misdirection of the learned Judge, especially upon the point of voluntariness, may very well have affected the decision in this case. It is not possible to conjecture what the decision of the jury would have been if they had been told that they were at liberty to consider whether these confessions were voluntary or not when they were considering the question of their truth. If the jury after a proper direction, had rejected the confessions altogether on the ground that they were not true confessions, nothing was left of the evidence against this particular appellant except the receipt. The question whether this receipt had been given by the appellant depended entirely on the evidence of the handwriting expert. In these circumstances, we are of opinion that this conviction cannot be allowed to stand, and the conviction and sentence must be set aside. In view of the fact that there is no evidence against this accused, except the evidence of the handwriting expert, we do not think it worth while to send the case back for retrial. The appellant therefore is acquitted.
Jack, J.
7. I agree. All that I would like to say with regard to Section 73, Evidence Act, is that had it been necessary to decide this point, I would be inclined to hold that Section 73 does include an accused person. There is authority for this view in the cases of Emperor v. Nga Tun Hlaing 1924 Rang 115 and Emperor v. Ramrao Mangesh 1932 Bom 406. However there is no need to decide this point in this particular case. I agree that the conviction and sentence in this case should be set aside and the appellant acquitted.
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