Judgement Appeal (No. 32 of 1945), by special leave, from a judgment and order of the Chief Court (May 5, 1944) varying as to sentence only an order of the Sessions Judge at Lucknow (January 10, 1944) by which the appellant was found guilty of the offence of culpable homicide not amounting to murder of one Bilasia, his wifes bandi maidservant, under para. 2 of s. 304 of the Indian Penal Code, and was sentenced to six years rigorous imprisonment, which, by the above variation, was reduced to a period of about four months, which the appellant had already served. The following facts are taken from the judgment of the Judicial Committee. The prosecution case was that on May 26, 1943, in the appellants house at Lucknow, Bilasia had been found in compromising circumstances with the appellants bearer, one Samuel, and that on that fact being reported to the appellant on his return from his office at about 7.30 p.m. he gave Bilasia a beating. The prosecution suggested that it was a very severe beating and that it reduced the girl to the point of death. At about 8.30 p.m. the appellant went out to dinner with a friend, and returned at about midnight, and the prosecution alleged that by that time Bilasia had died. Thereupon, that was, shortly after midnight, the appellant, with his wife and his chauffeur Mahabir, drove in the appellants car some sixty miles to the house at Ramgarh Gularia of Bhanwar Singh, whose wife, a sister of the appellants wife, had a bandi maidservant named Basanti, who was a cousin of Bilasia. The prosecution alleged that the dead body of Bilasia was in the boot of the car, and that the object of the journey was to dispose of the body. The prosecution alleged that the dead body of Bilasia was in the boot of the car, and that the object of the journey was to dispose of the body. The prosecution alleged that a mile or two before reaching Ramgarh Gularia the appellants car had a puncture, and that certain villagers who were passing in a bullock cart took the appellants party up to the house of Bhanwar Singh ; that when the party reached the house, Bhanwar Singh, who was accused 2 on a separate charge of disposing of the body, sent his servant, who was accused 3, and two Pasis who were accused 4 and 5 with Mahabir to the appellants car ; that they removed the body of Bilasia from the car and concealed it, and subsequently dismembered it and scattered the bones in the jungle, and later pointed out such bones to the police. The appellant admitted that he gave Bilasia a beating on the evening of May 26, but alleged that it was a light beating, mainly on the hands and arms, though he gave her one blow on the back as she was running away. He said that he was very angry about Bilasias conduct, since she had been guilty of similar conduct on previous occasions, and that he insisted that his wife should get rid of her at once. He alleged that on his return from his dinner party at about midnight he was very much annoyed to find that Bilasia was still in the house ; he refused to have her any longer under his roof and insisted that he and his wife and chauffeur should take her at once to the house of Bhanwar Singh, where she could be handed over to the care of Basanti. On that part of the case the real point at issue between the prosecution and the defence was whether it was Bilasia herself or her dead body that was taken in the car from Lucknow. The appellant admitted the puncture a mile or two short of Bhanwar Singhs house, and said that he and his wife and Bilasia walked the rest of the way to the house, leaving the chauffeur to repair the puncture ; that his wife and Bilasia remained at Bhanwar Singhs house, but the appellant himself returned to Lucknow in his car as soon as the puncture was mended. It was common ground that when the police visited the house of Bhanwar Singh on May 28, Bilasia had disappeared, and had not been heard of since. The appellants story was that she had gone out to the jungle to answer a call of nature and had not returned. The original charge against the appellant was under s. 302 of the Penal Code for the murder of Bilasia, but he was committed for trial on the charge of culpable homicide not amounting to murder under s. 304. In the Court of Sessions, however, the charge was altered to one of murder under s. 302, and, although the eventual conviction was under s. 304, it was on the charge of murder that the appellant was tried by the Sessions Judge sitting with five assessors. At the same time, and in relation to the same alleged offence, the appellant separately, and four other persons, who were accused 2-5, jointly, were charged with the offence of causing evidence of the commission of the said offence of murder to disappear, to wit, with the destruction or disposal of the body of Bilasia, knowing or having reason to believe that the offence had been committed, and with the intention of screening the offender from legal punishment, an offence punishable under s. 201 of the Penal Code. No objection seemed to have been taken to the trial of accused 2-5 jointly with the appellant, although it was not suggested that they had taken any part in, or had any knowledge of, the alleged murder by the appellant. However, as those accused were acquitted, it was not necessary to discuss that point. Under the provisions of the Criminal Procedure Code and certain regulations of the local government, a charge under s. 302 of the Penal Code was triable by a judge with assessors, and a charge under s. 201 was triable by a judge with a jury. At the trial the same five gentlemen acted as assessors on the main charge and as jurors on the minor charge. The Sessions Judge convicted the appellant of culpable homicide not amounting to murder under s. 304 of the Penal Code. The jury by their verdict acquitted the appellant and the four other accused of the charge under s. 201 of the Penal Code. The Chief Court (Thomas CJ. and Hasan J.) affirmed the conviction of the appellant. 1945. Oct. The Sessions Judge convicted the appellant of culpable homicide not amounting to murder under s. 304 of the Penal Code. The jury by their verdict acquitted the appellant and the four other accused of the charge under s. 201 of the Penal Code. The Chief Court (Thomas CJ. and Hasan J.) affirmed the conviction of the appellant. 1945. Oct. 15,16,17. Pritt K.C. and Handoo for the appellant. There was not a tittle of evidence, direct or circumstantial, to show that Bilasia is dead or was seen dead or dying or even seriously ill, or that her chastisement was so severe as to have been likely to cause her death. On the contrary, there was abundant evidence, given not only by defence witnesses but also by prosecution and court witnesses, which proved that, after her chastisement, she was alive and, except for a few superficial bruises, well, being seen to be so both at Lucknow and Ramgarh Gularia, and she may well be alive to-day. The Chief Court arrived at their finding that Bilasia had died as a result of her chastisement by relying on evidence contained in statements alleged to have been made by certain witnesses— Mst. Haliman, an ayah, and Mahabir, the chauffeur—under s. 164 of the Criminal Procedure Code. Those statements were inadmissible in evidence for any purpose. A statement under s. 164 can be used to check, corroborate or destroy evidence, but it can never prove the facts stated. The court has no right to use a s. 164 statement which is repudiated by the witness. If a man goes into the witness-box and says " I carried that girl " alive," and is asked " did you make a statement under s. 164 " that you carried her corpse ? " and he replies, " yes, but it was " not true," then there is no evidence that he carried a corpse. There is also the additional difficulty that the magistrate who took the statements in this case under s. 164 did not send them to the proper destination, and unless that requirement is followed the statement cannot be used at all Nazir Ahmad v. King-Emperor (( 1936) L. R. 63 I. A. 372, 382.). Broadly speaking, no confession or statement to a police officer can be used in evidence, at all. The s. 164 statement of Mst. Broadly speaking, no confession or statement to a police officer can be used in evidence, at all. The s. 164 statement of Mst. Haliman does not prove death; it proves the severity of the beating and some distress afterwards. Al by itself, the s. 164 statement of Mahabir, the chauffeur, would be an end of the case, but it cannot be admitted. If, however, the Crown can persuade the Board that the statement under s. 164 can constitute some affirmative evidence, then the fact that the recording magistrate did not send it to its proper destination, but handed it to the police, is fatal to its use even for the purpose of contradicting a witness. It is conceded that if the s. 164 statements can be made affirmative evidence, then there would be some evidence on which the court could convict. If they are inadmissible, however, as it is submitted they are, and are disregarded, the whole of the evidence in the case—apart from the great volume thereof that was disbelieved by the Chief Court—not merely failed to establish any case against the appellant, but would definitely disprove any such case. Roberts K.C., Wallach and B. MacKenna for the respondent. The appellant was guilty of culpable homicide not amounting to murder and was rightly convicted for the reasons given by the Chief Court so far as they agree with the reasons given, by the Sessions Judge. There was sufficient evidence to justify the conviction of the appellant by the Sessions Judge, and there has been no interference with the elementary rights of the appellant and no violation of the principles of natural justice. The most careful and most exhaustive judgment of the Sessions Judge ought to be approved and followed in this case. It is agreed that it would be improper to use statements made under s. 164 as being substantive evidence, but the answer is that the Sessions Judge did not do so. There was other evidence which the Sessions Judge accepted and on which he was entitled to convict, and if there is some evidence this Board will not interfere. It is agreed that it would be improper to use statements made under s. 164 as being substantive evidence, but the answer is that the Sessions Judge did not do so. There was other evidence which the Sessions Judge accepted and on which he was entitled to convict, and if there is some evidence this Board will not interfere. If the Board is satisfied, not as to what particular findings were made in India by the different courts, but that there is some evidence to justify the finding which is appealed against, then the Board will say, in accordance with precedent, that there is no startling departure from the rules of justice which will justify the Board in interfering Chainchal Singh v. King-Emperor (( 1945) L. R. 72 I. A. 270.), in which the Sessions Judge and the High Court differed and the Board found that the High Court had admitted inadmissible evidence, and the judgment of the Sessions Judge was restored. In the present case there is no interference with natural justice any more than in that case. There is no authority and no principle to the effect that the decision of one court in India is, in the opinion of the Board, to be preferred to the decision of another court. There being here the same finding of fact—culpable homicide—by each court, it is submitted that it for this Board to say that they prefer the reasoning of the lower court rather than that of the higher court; there is a finding by the higher court which I desire to support by the reasoning of the lower court. There is evidence in this case to support the finding which is appealed against, and therefore there cannot be any question of any interference with natural justice or any miscarriage of justice Arnold v. King-Emperor ([ 1914] A. C. 644, 648.). Wallach followed. Although there is no evidence accepted by the Chief Court that the dead body of Bilasia was actually seen, it is submitted that on the facts the appellate court was entitled on circumstantial evidence to make the finding which they did Mangal Singh v. King-Emperor (( 1937) L. R. 64 I A.134, 140.). [Reference was also made to Begu v. King-Emperor (( 1925) L. R. 52 I. A. 191, 195.).] Oct. 17. [Reference was also made to Begu v. King-Emperor (( 1925) L. R. 52 I. A. 191, 195.).] Oct. 17. LORD THANKERTON announced that their Lordships would humbly advise His Majesty to allow the appeal, and that they would give their reasons later. Nov, 22. The reasons of their Lordships for allowing the appeal were delivered by Sir John Beaumont, who stated the facts set out above and continued At the trial the jury returned a verdict of not guilty in respect of all the accused on the charge under s. 201, and as assessors they expressed the view that no offence was proved against the appellant under s. 302 or s. 304. The Sessions Judge did not agree with the verdict of the jury and made a reference to the Chief Court of Oudh under s. 307 of the Criminal Procedure Code. On the major charge he convicted the appellant under s. 304. The learned judge, in a very full judgment, discussed the whole of the evidence in detail. In regard to the beating of Bilasia he summed up his conclusions in these terms " This " concludes the evidence of the prosecution witnesses regarding M the beating. It certainly does not establish that the beating " was a severe one, or that Bilasia died as a result of this beating, " but I do feel that the manner in which the two ayahs have " given their evidence, particularly Mst. Haliman, shows that " they are withholding the truth, and this fact must be borne " in mind when considering the prosecution evidence as a " whole/ At the end of his judgment, however, he expressed the view that the appellant lost his self-control and beat the girl severely with a stick of substantial size. He concluded in these terms " Everyone is presumed to know the natural " consequences of his actions and the knowledge which I " impute to Mr. Singh is the knowledge that the excessive " beating which he gave to Bilasia was likely to cause her death. M I am not prepared to hold that the offence committed by him "is of a lesser nature as there is no reason to assume that " Bilasias death was due to some accidental cause which " Mr. Singh could not have anticipated, such as the rupture of a " diseased organ. M I am not prepared to hold that the offence committed by him "is of a lesser nature as there is no reason to assume that " Bilasias death was due to some accidental cause which " Mr. Singh could not have anticipated, such as the rupture of a " diseased organ. Bilasia, so far as the evidence discloses, " was a healthy girl, and I do not think that there are any " good grounds for holding that her death was occasioned by " some physical abnormality, the existence of which was not " known to Mr. Singh. The view I take is that Mr. Singh " beat her recklessly and violently knowing that his blows " were likely to cause her death. I am therefore of the opinion " that he is guilty of the offence punishable under the second " part of s. 304 Indian Penal Code.” The reason why the learned judge changed his view as to the severity of the beating established by the prosecution evidence is not clear. He could not act on evidence which was not given, however much he may have felt that it ought to have been given. Their Lordships may observe that the theory which the learned judge rejected, that the girl may have died from an internal injury caused by the beating which manifested itself later in the evening, at least afforded a rational explanation of the conduct attributed to the appellant. It is almost inconceivable that if the appellant, an educated man, a member of the Indian Civil Service, had beaten the girl to the point of death, he would have gone out for the evening without taking any steps to ensure that she received medical attention, and that his wife would have concurred in such procedure. Apart from considerations of humanity, the appellant must have realized that the death of the girl would place him in a very serious position. With regard to the evidence as to the disposal of the body the learned Sessions Judge acted, as he was entitled to do, on his own view of the evidence which the jury had rejected on the lesser charge. With regard to the evidence as to the disposal of the body the learned Sessions Judge acted, as he was entitled to do, on his own view of the evidence which the jury had rejected on the lesser charge. He accepted most of the evidence of the villagers who were said to have met the party when the tyre punctured, and considered that such evidence established that Bilasia was not with the party at that time, a finding which destroyed much of the defence case ; though it is to be noticed that no witness spoke of having seen the dead body of Bilasia. With regard to the production of the bones, the learned judge accepted the evidence of their having been pointed out by accused 3-5 and held that the bones might be the bones of Bilasia, though he did not hold this to have been definitely proved. On appeal the Chief Court of Oudh rejected the reference under s. 307, holding that there was evidence on which the jury were entitled to reach the conclusion they did, and that their verdict was not perverse. The Chief Court, however, went further than this and themselves considered the evidence, as they were right in doing since the evidence as to the disposal of the body might be relevant on the charge under s. 304. In the result they expressed the view that the jurys appreciation of the evidence was correct; they rejected the whole of the prosecution evidence as to the disposal of the body, and held that the bones produced were not those of Bilasia. The court then considered the evidence as to the killing of Bilasia at Lucknow, and held that it was proved that the appellant gave such a beating to Bilasia that it ultimately resulted in her death, and that her dead body was removed in the car, though the method of its disposal was not proved. In reaching this conclusion, however, the Chief Court used statements made by the ayah, Haliman, and the chauffeur Mahabir under s. 164 of the Criminal Procedure Code as substantive evidence of the truth of the facts stated. In reaching this conclusion, however, the Chief Court used statements made by the ayah, Haliman, and the chauffeur Mahabir under s. 164 of the Criminal Procedure Code as substantive evidence of the truth of the facts stated. It is true that in their judgment the learned judges say " We may add " that statements under s. 164 cannot be and have not been " used as substantive pieces of evidence but only for such " purpose as the law permits/ A perusal, however, of the whole of the judgment makes it apparent, in their Lordships view, that the statements were used as substantive evidence, and it was for this reason that the appeal to His Majesty in Countil was admitted. The learned judges discussed in great detail the statements made by Haliman and Mahabir under s. 164 and gave reasons for accepting the facts, or most of the facts, deposed to in those statements, in preference to the evidence given by the witnesses in court, which in no way helped the prosecution. This was an improper use of such statements. A statement under s. 164 can be used to cross-examine the person who made it, and the result may be to show that the evidence of the witness is false, but that does not establish that what he stated out of court under s. 164 is true. Mr. Roberts, for the Crown, did not attempt to justify the use made by the Chief Court of the statements under s. 164. His contention was that two courts in India have convicted the appellant; that there was evidence to justify such conviction, and that no injustice would be done by upholding it, and that there was no ground on which this Board should interfere. This argument as at first presented ignored the fact that the two courts in India differed materially in their view of much of the evidence, and ultimately Mr. Roberts was constrained to invite the Board to accept the appreciation of the evidence by the Sessions Judge in preference to that by the Chief Court. This argument as at first presented ignored the fact that the two courts in India differed materially in their view of much of the evidence, and ultimately Mr. Roberts was constrained to invite the Board to accept the appreciation of the evidence by the Sessions Judge in preference to that by the Chief Court. The story which the Chief Court rejected, namely, that the body of Bilasia was placed in the appellants car and taken as far as the place where the puncture occurred, that the whole party proceeded from that place to the house of Bhanwar Singh leaving the corpse in the unattended car on a frequented road, that Bhanwar Singh without having enjoyed any previous opportunity of considering the matter at once ordered his servants to accompany Mahabir to the car and dispose of the body, and that the servants performed this task without apparently any regard to the serious consequences to themselves which might ensue, is not one calculated to carry conviction on its own intrinsic merits. As a mere matter of probability it would be reasonable to suppose that the dead body, if there was one, was disposed of by the appellant and Mahabir before arriving at Ramgarh Gularia without incurring the risk of introducing outside parties who might prove awkward witnesses; and that the journey to Ramgarh was continued in order to arrange with Bhanwar Singh a suitable story in case inquiries for Bilasia were instituted. It is clear that their Lordships could not reject the view which the Chief Court took of the evidence without themselves considering the evidence in detail. This is a course which the Board normally refuses to adopt in a criminal appeal, and their Lordships see no reason in this case for departing from their usual practice of accepting the appreciation of evidence reached by the court from which the appeal is brought. On the finding of the Chief Court that the evidence as to the disposal of the body was unreliable and that the bones produced were not those of Bilasia, the case must rest, as the Chief Court recognized, on the Lucknow evidence as to the beating. On this view of the matter their Lordships find that the prosecution case is not proved. On this view of the matter their Lordships find that the prosecution case is not proved. There is no evidence that Bilasia was beaten very severely; no one saw her in a state of collapse, and no one saw her dead body, and there is no evidence sufficient to justify a finding that Bilasia is dead. It is true that both the courts in India disbelieved the reason given by the appellant to explain the midnight motor-car journey, holding that it was untrue and, indeed absurd, to suggest that such a journey was undertaken because the appellant could not face passing another night under the same roof as Bilasia; and their Lordships entirely concur in this view. The fact, that a long motor-car journey was undertaken in the middle of the night, and that a false reason was given in explanation, raises a suspicion that the object of the journey may have been to dispose of the dead body of Bilasia, and that suspicion is much strengthened by finding that from the time when the motor-car left the appellants house Bilasia was never seen alive by any independent witness, and that admittedly she had disappeared the next day. The appellant has only himself to blame for much of the course which the case has taken. But suspicion is not proof. It is impossible to say that the only legitimate inference to be drawn from this motor-car journey and the disappearance of Bilasia, is that the appellant killed Bilasia. Their Lordships are of opinion that the appeal must be allowed and the conviction of the appellant quashed, and they have humbly advised His Majesty accordingly.