Background
Nishikant Jha a student of Jhajha High School, was charged with the murder of a fellow student of the same school and robbing him of the sum of Rs- 34 on October 12, 1961. In this case the murder took place in the train popularly known as Barauni-Sealdah Passenger. When the Train reached at Jasidih Station one Anil Kumar Roy wanted to board the train in the said compartment but could not do so. He then entered the other compartment.

The Dead body of the deceased was found in the Lavatory. He was found with neck cut and besmeared with blood. Blood was coming out from the veins of the neck. The photographs were taken and post-motrem was done and later the dead body as indentified as one- Jai Prakash Dubey , Student of Class- X B, Science of Jahaja High school. The injuries were homocidal and death was caused by Bleeding and Shock.

The Appeallant was then noticed by one Ram Kishore pandey (PW 17) washing his clothes near the river Ptro and about one hour before sunsent on 12th october,1961. Pandey noticed that there was a cut on the left of the appellant and questioned him for the same.

The appeallant version was that the left hand of the Appelant was cut because one cow boy had assaulted him and cut his finger with glass and snatched away his money. Ram Kishore Pandey on reaching his home leadred from Shiv Shankar pandey (PW 25), that a murder has been committed in the Barauni-Sealdah Train and they suspected that the Appellant might be the murderer.

They then started the search of the Appeallant and they found him 1 mile from the village of Tithapur while going in the bullock cart and on being accosted he said he was going to village Roshan that being his sisters place of residence and said that he did not committ any Murder.

Case: Nishi Kant Jha v. State Of Bihar,
Appellant - Nishi Kant Jha
Respondents - State of Bihar
Citation - Criminal Appeal N0-190, (N) of 1966
Decided on - 2nd December 1968
Bench - M. Hadiyatullah , C.J and J.C Shah , V. Ramaswami (I), G.K Mitter and A.N grover ,JJ)

Facts of the Case.
The facts of the case is one Nishikant jha was accused of Murdering, one school boy named Jay Prakash Dubey, of classs X-B , science, of Jhaja High Scool. The dead body of the deceased was found in the lavotary of the Barauni- Sealdah Train. He was found washing his clothes near the Patro river and some people after, some questioning to him, took him to custody and recorded the statement. The statement was recorded under section 342 of Code of Criminal Procedure.

The accused pleaded not Guilty and the statement reads as:

1. The appellant had boarded a first class compartment In Barauni passenger Jhajha already occupied by a person not known to him
2. When the train reached Simultala one Lal Mohan Sharma, resident of Deoghar entered that compartment.
3. When the train proceeded further and stopped at Jasidih Station, the appellant
4. He wanted to get down but was prevented from doing so by Lal Mohan. (4) After the train moved out of Jasidih Lal Mohan caught hold of the first occupant of the compartment and took him into the lavatory and started beating him.
5. The appellant wanted to prevent this and in trying to catch hold of the assailant's hand he was injured by a knife. Thereafter he took no further steps to prevent the commission of the crime.
6. Lal Mohan Sharma threatened him with death in case he wanted to open the door.or the widow of the compartment and killed the stranger.
7. When the train was reaching Mathurapur Lal Mohan jumped out of it and ran away.
8. The appellant also jumped out of the train after it had crossed the river Patro near Madhupur and fled away to save his life because he was apprehensive of being arrested as the only person left in the compartment.
9. He went to the village Ratu Bahiar near the river Patro and washed his clothes in the river with a soap.
10. Thereafter he took a ride in a bullock cart going to Deoghar but after covering a mile or so he was apprehended by Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodya Turi, the Chowkidar and Rameshwar Mahto.

Issue:

1. The statement given by the accused and recorded by Village Mukhiya before arrest- whether admissible as evidence or not?
2. Whether the court could could reject the Exculpatory part and accept the Inculpatroy part in convicting the accused?

Appeallant contention
The contention urged on behalf of the appellant that the statement was not voluntarily made and as such could not be admitted in evidence was rightly rejected by the High Court. The High Court noted that no suggestion had been made to any one of the persons who had taken the appellant to the Mukhiya and had been tendered for cross-examination that any of them had assaulted the appellant nor was any suggestion made that the appellant had been coerced or threatened with dire consequences if he did not make the statement.

The appellant's own version that he was made to give his signature on a blank piece of paper cuts at the root of his case that he made a statement as a result of a threat or assault, for in that case, all that was necessary was to get his signature. A point was sought to be made by Counsel for the appellant that the footprints and finger prints in the lavatory of the first class compartment taken at Madhupur station were found to be different from those of the appellant and that this went to show that the appellant could not have been the murderer.

The High Court turned down this contention on the ground that before the police took charge of the situation many people had entered the compartment of the train and the above difference therefore was not a factor on which any reliance could be placed.

Respondent Contention.
In the light of the above incriminating circumstances culled from the evidence, the acceptance of the statement of the appellant in Ex. 6 that he had travelled together with an unknown person, later identified as the victim, Jal Prakash Dubey in the same compartment would be conclusive to prove the guilt of the appellant if his further statement in Ex. 6 about the part played by Lal Mohan Sharma be rejected. The appellant had admitted his presence on the scene of the murder, but it was his version that the crime was committed by someone else while he himself was a helpless spectator.

When the assailant jumped off the train he followed suit being apprehensive of arrest on the charge of murdering the unknown person. He had done so near the river Patro. Some portions of the statement were not found to be acceptable. It is not possible to believe that if Lal Mohan Sharma wanted to commit the murder he would prevent the appellant from getting off the train at Jasidih so as to have a witness who knew his name and address and testify to his commission of the crime.

Lal Mohan Sharma was not in the train at Jhajha and no details were given. about any quarrel between him and the victim which might lead the former to make the attack on Jai Prakash. Apparently there was no motive for Lal Mohan Sharma's commission of the crime. Again it is not possible to believe that Lal Mohan Sharma should not have tried to do away with the appellant also.

The version of the appellant receiving the injury on his left hand in the railway compartment was also unbelievable. So was his story of a scuffle with the herdsman and cutting his hand as a result as d thereof. The cause for the herdsman abusing the appellant and his remonstrance followed by an attack on his person all appear to be imaginary.

The only incised injury which the appellant had suffered was skin deep and it is impossible to accept the story. that the bleeding was so profuse as to have necessitated his washing his shirt and trousers in the river. Nor does such an injury account for the other articles like his belt, shoes and books being stained with blood which was sought to be removed by washing.

JUDGEMENT
The judgement was delivered by - G. K Mitter, J

It was held that the Statement given by the accused and that of the exculpatory of the statement was not only inherently improbable but was contradicted by the other evidence and and so it was wholly unaaceptable. The other incriminating circumstances cosidered along with the appeallant statement poinitng conclusivley.

It was said on the behalf of the appellant before the High Court that he has stated in his statements that-"He was present at the time of the murder" and also said that-"Murder was committed by any other person". Court admitted the first statement and not the other.

There were other circumstantial evidence before the High Court, like:

• Accused washing clothes stained with blood.
• He has seen to carry clothes and book stained with blood.
• He has seen with a 9 inches knife.
• The medical report suggested that wounds on the deceased body were caused by a knife.

The Supreme Court considered all there facts and arguments. Supreme Court held that the statement of confession by accused is not capable of admission because it is contradictory to statements by another witness. Appellant said two contradictory statements about the injury on his finger once he says that is was caused due to an attack while other time he said that it was caused during protecting himself from the attack by Mohan Lal Sharma.

According to the medical report, his finger injury was not so grievous that the clothes got stained by so much blood. The knife also had human blood. All these facts rejected the statements which acquit him.

Due to above all reasons, the Supreme Court dismissed the appeal and approved the sentence laid by the High Court.

RATIO DECIDENI
The court while delivering the judgment considered the ROSCOE'S book on criminal evidence, the statement of law is much to the same effect and Roscoe even cites a case Rex v. Clewes and in this case the question beneath the jury was, where the confession of accused charged with murder that he was present at the site of murder but did not commit the murder and neither he took part in it. If they thought it proper they may believe it and disbelieve it. The court also took consideration of cases cited by the learned counsel.

1. Hanumant v. State of M.P
2. Palvinder kaur v. State of Punjab.
3. Emperor v. Balmukund
4. Rex v. Clews
5. Narain Singh v. State of Punjab.

Conclusion:
It can be concluded form the judgment given by the court that it is upon the court to exonerate the exculpatory part and take the inculpatory part into consideration and convict the accused. It can also inferred, that the statement given by the accused which is inculpatory and exculpatory at the same time, the court cannot simply reject the exculpatory part, and include the inculpatory part. It must be taken into consideration along with other evidence which is adduced by the prosecution with regards to convicting the accused.

The circumstantial evidence can be primary evidence but differs from case to case. It must be corroborated with other types of evidence.