In our experience, we have seen that there is general reluctance on the part of the defence lawyers to tacitly admit the confession of an accused in evidence. This is because of the apprehension in the mind of the legal fraternity that in the event the confession is admitted in evidence as a defence document, the Court may get influenced by the said confession and the Court may use the confession against the accused to convict him based on the said confession. But, we are not prepared to say that the said apprehension is totally baseless. It is also in our experience that many Trial Courts have slight lack of understanding regarding the distinction between using a confession made by the accused to the police against him and using the same in his favour. As we have pointed out already, simply because a confession to the police has been admitted in evidence, on the side of the defence, it does not mean that the accused himself concedes that the same could be used against him. The only option available for the Court is to use the confession in favour of the accused if it is reliable and not to use the same either in full or in part against the accused. If the Court is not inclined to use the confession in favour of the accused, then, the Court is obliged to eschew the entire confession from consideration.
Equivalent Citation: 2013(2)CTC593, 2013-1-LW(Crl)298, 2013(2)MLJ(Crl)664
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
Criminal Appeal (MD). No. 149 of 2011
Decided On: 17.12.2012
S. Shajin Vs. The State, rep by Inspector of Police
Hon'ble Judges/Coram:
M. Jaichandren and S. Nagamuthu, JJ.
1. The appellant is the sole accused in S.C. No. 2 of 2010 on the file of the Principal Sessions Judge, Kanyakumari District. By judgment dated 10.12.2011, the trial Court, convicted him under Sections 449 and 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for one year for offence under Section 449 IPC and to undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default, to undergo simple imprisonment for one year for offence under Section 302 IPC. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court with this criminal appeal. The brief facts of the case of the prosecution are as follows:
P.W. 1 is the mother of the deceased. The deceased was one Sharmi, aged about 24 years. The deceased was a post graduate having M.E., degree to her credit. She was working in a private college known as "James Engineering College". The accused had developed love for her and wanted to marry her. But it was not to the liking of the deceased and her family members. The deceased declined to the proposal made by the accused for the said marriage. The accused was a student doing law course in Dr. Ambedkar Law College at Chennai. While so, on 14.02.2010, when the deceased was proceeding to CSI Pastorate, the accused came there and wanted the deceased to agree to marry him. The deceased declined the said offer. The deceased warned the accused not to make any more attempt to meet her, as she had no love at all for him. The family members of the deceased had started to search for a bride groom for the deceased. On 15.02.2010, the family members of a bridegroom, who was employed in Chennai, came to the house of the deceased to see the deceased. On seeing her, they expressed their desire to settle the marriage between the said bridegroom and the deceased. The family members of the deceased also positively responded. Thus, they mutually agreed for the said marriage. It was also proposed to fix the date of marriage, after the bridegroom had returned from Chennai. This information had reached the ears of the accused.
2. On 16.02.2010, at 5.30 a.m., the deceased was at her home. P.W. 1 the mother of the deceased was also at home. At about 5.15 a.m., P.W. 1 had gone out of the house to a nearby shop for the purpose of buying milk. At 5.30 a.m., when she returned, she found the accused inside the house with an aruval. The deceased was sleeping on the cot. The accused shouted at the deceased and cried out: "since you are not available for me for marriage, you should not be available for marriage for anyone else". Saying so, the accused cut the deceased on her neck. He pulled her hair and inflicted two more cuts on her neck with aruval. P.W. 1 witnessed the occurrence. Then the accused fled away from the scene of occurrence through the front entrance of the house. P.W. 1 raised alarm.
3. P.W. 3 is the sister-in-law of P.W. 1. P.W. 2 is the son of P.W. 3. P.Ws. 2 and 3 were just proceeding towards the house of the deceased at the crucial moment to seek help, as P.W. 3 was slightly unwell. At about 5.30 a.m., on 16.02.2010, when they were nearing the house of the deceased, they found the accused running away from the house of the deceased with M.O. 1 aruval. When they rushed into the house, they found the deceased in a pool of blood. She was dead. P.W. 4 is a neighbour. According to him, at 5.30 a.m., on 16.02.2010, he heard the cry of P.W. 1. when he rushed towards the house of the deceased, he found the accused running away from the house of the deceased with aruval. When he went to the house of the deceased, he found the deceased in a pool of blood.
4. After the occurrence, P.W. 1 proceeded to the police station and made a complaint on 16.02.2010 at 8.00 a.m. P.W. 11 was the Sub Inspector of Police attached to Arumanai Police Station. On receipt of Ex. P1 complaint, she registered a case in Crime No. 45 of 2010 under Section 302 IPC. Ex. P16 is the First Information Report. She forwarded Exs. P1 and P16 to the Court and then handed over the case diary to the Inspector of Police for investigation.
5. Now, turning to the movement of the accused after the occurrence, the accused had gone to the nearby railway station. P.W. 14, was then working as a loco pilot at Thiruvananthapuram railway division. On 16.02.2010, he was on duty as a pilot between Nagercoil and Thiruvananthapuram railway stations in a train. On its way to Nagercoil, the train was stationed at Eraniel railway station. At 7.15 p.m., the train again proceeded its journey. At 279/1 k.m. point, when the train was proceeding, the accused was sitting on the left side of the railway track. When the train was nearing, the accused made an attempt to fall in front of the train. But the front gate of the running train hit him and pushed him aside. The train was, therefore, stopped. They found the accused struggling for life. P.W. 14 informed about the occurrence to the railway station. They also arranged for an ambulance. Ambulance service (108) provided by the Government took him to the hospital.
6. At 8.15 p.m., when he was admitted at Padmanabhapuram Government hospital, the accused told the doctor that by accident, he had fallen in front of the train. P.W. 12 examined him and noticed the following injuries:-
1. Multiple lacerated injuries of varying sizes over the left parieto frontal region of scalp. Active bleeding present.
2. Swelling present left side of scalp and left maxillary region.
3. Tenderness present over left side of chest wall and abdomen.
4. Patterned contusion present posterior aspect of left chest wall.
Ex. P17 is the accident register and Ex. P18 is the wound certificate. In respect of the said occurrence, namely, falling in front of the running train, a case was registered by the railway police Sub Inspector (P.W. 15) in Crime No. 60 of 2010 under Section 309 IPC. Ex. P19 is the said First Information Report.
7. P.W. 16 took up the said case for investigation. He proceeded to the place of occurrence at Eraniel, prepared observation mahazar, rough sketch and examined few witnesses. Thereafter, he handed over the said case diary to P.W. 18, for investigation along with Crime No. 45 of 2010 registered already for murder.
8. P.W. 17 took up the case for investigating Crime No. 45 of 2010 for offence under Section 302 IPC. On 16.02.2010, he proceeded to the place of occurrence and prepared Ex. P20 rough sketch and Ex. P2 observation mahazar in the presence of P.W. 5 and another witness. Then, he recovered bloodstained concrete floor and sample concrete floor from the place of occurrence. He conducted inquest between 10.00 a.m. and 12.30 p.m. and prepared Ex. P1 mahazar. During inquest, he examined P.Ws. 1 to 4 and recorded their statements. He forwarded the body for postmortem.
9. P.W. 8 conducted autopsy on the body of the deceased on 16.02.2010 at 3.15 p.m. He found the following injuries:
1. Horizontal gapping cut injury seen over the left side of face, extending from left side of upper lip upto the lower border of left ear measuring 13 x 3 x bone deep. On examination it has cut the underlying muscles, vessels and the left side of lower jaw. Trailing of 5 cm noted over the left side of the wound.
2. 18 x 5 cm x pleural cavity cut injury seen over the left side of root of neck. The anterior end is 5 cm above the medial end of left clavicle. On examination it has cut the muscles, vessels, 1st and 2nd ribs on left side in their back and the body of the 7th cervical vertebra and has entered the pleural cavity.
3. 9 x 3 cm x bone deep cut injury seen just above and overlapping in the previous injury. On examination it has cut the muscles, vessels at that site.
4. 2 x 1/2 cm x 1/2 cm oblique stab injury seen over the left side of front of neck seen 3 cm above the suprasternal notch.
All the above said injuries are reddish in colour. Nil genital injuries.
Ex. P8 is the postmortem certificate. He preserved the viscera for chemical examination. Ex. P9 is the viscera report, which reveals that there was no poison deducted in the internal organs of the deceased. Ex. P10 is the final report. According to him, the deceased would appear to have died of cut injuries over the neck.
10. Continuing the investigation, P.W. 17 examined few more witnesses and then handed over the case diary to P.W. 18 for further investigation.
11. On 20.02.2010, P.W. 18 proceeded to the Government Medical College Hospital for the purpose of examining the accused. But he had already been discharged from the hospital. On the same day, at 7.00 p.m., he found the accused near the hospital and arrested him in the presence of P.W. 6 and another witness. On such arrest, he gave a voluntary confession. In the said confession, he had disclosed that he would identify the place where he had hidden the knife and the motorcycle bearing registration No. TN 74 U 2552. (P.W. 4 had found the accused fleeing away from the scene of occurrence only in this motorcycle). In pursuance to the disclosure statement, the accused took the police and the witnesses to the Themanur bridge at about 11 p.m. and produced M.O. 1 aruval, which was found stained with blood and human hair. Then, from the railway bridge, he produced the motorcycle TN 74 U 2552 (M.O. 7) and a broken cell phone (M.O. 8). P.W. 18 recovered all these material objects under mahazar in the presence of witnesses. He recovered the sim card of the cell phone (M.O. 9) from the possession of the accused. On returning to the police station, he forwarded the accused for judicial remand and handed over the properties to the Court. Since, he was transferred, he handed over the investigation to P.W. 19. The material objects were sent for chemical examination. Ex. P14 is the chemical examiner's report and Ex. P15 is the serology report. According to Ex. P14, human bloodstains were found on the bill hook, (M.O. 1). However, the blood grouping test remained inconclusive. On completing the investigation, P.W. 19 laid charge sheet against the accused.
12. Based on the above materials, the trial Court framed charges under Sections 449 and 302 IPC. The accused pleaded innocence. So, he was put on trial. On the side of the prosecution, as many as 19 witnesses were examined and 21 documents were exhibited, besides 10 material objects.
13. Out of the said witnesses, as we have narrated above, P.W. 1 is the eye witness to the occurrence. P.Ws. 2 and 3, have seen the accused fleeing away from the scene of occurrence at the time of occurrence. P.W. 6 has spoken to about the fact that the accused was arrested in his presence and on the disclosure statement made by him, M.O.1 aruval, with bloodstain, was recovered. P.W. 7 has spoken to about the motive, which has taken place on 14.02.2010. The others are official witnesses.
14. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side nor marked any document. Having considered the above, the trial Court found him guilty under Sections 449 and 302 IPC and accordingly, punished him. That is how, the appellant is before this Court with this criminal appeal.
15. We have heard the learned Senior counsel for the appellant and the learned Additional Public Prosecutor for the State and we have also perused the records carefully.
16. The learned Senior Counsel for the appellant would submit that the evidences of P.Ws. 1 to 4 cannot be believed for more than one reason. According to him, the presence of P.W. 1 itself is doubtful, because she has admitted in her chief examination itself that she had gone out of her house for purchasing milk. He would further submit that the presence of P.Ws. 2 to 4 also cannot be believed because, they happened to be chance witnesses. More particularly, he would submit that P.Ws. 2 and 3 do not have their residence anywhere near the place of occurrence. They have stated that they came from the next street to the house of the deceased at the crucial moment. Thus, the chance presence of P.Ws. 2 and 3 could not be true and therefore, their evidences cannot be believed, he contended. So far as P.W. 4 is concerned, the learned Senior counsel would raise a similar plea. Coming to the arrest of the accused, the learned Senior counsel would submit that the accused was not arrested while he was in the hospital. The case of the prosecution that he was arrested after discharge from the hospital cannot be believed. The learned Senior counsel would further point out that assuming that it was this accused, who caused the death of the deceased, still the act of the accused would fall only under Section 304(i) IPC. The learned senior counsel submitted that the confession of the accused made to the police can be looked into by this Court wherein there are materials to hold that the accused had acted out of sustained provocation. In other words, according to the learned Senior counsel, the act of the accused would fall within the ambit of first exception to Section 300 IPC.
17. But, the learned Additional Public Prosecutor would stoutly oppose this appeal. According to him, the presence of P.Ws. 1 to 4 cannot be disbelieved at all at any cost. He would further submit that the prompt lodging of the FIR in this case assures the truthfulness of the contents of the FIR. Regarding arrest also, he would submit that there are no reasons much less acceptable reasons to disbelieve the evidence of P.W. 6 and the Inspector of Police. He would further point out that on 14.02.2010 itself, when the deceased was nearing the church, the accused pressurised her to agree for marriage, for which, she declined. That is the motive, which according to the learned Additional Public Prosecutor, had prompted the accused to go with predetermination that too with a weapon to do away with the deceased. According to the learned Additional Public Prosecutor, the evidence of P.W. 1 is duly corroborated by the medical evidence of P.W. 12 also. He would further submit that from the narration of facts, it is crystal clear that the accused committed the murder of the deceased and his act does not fall under any of the exceptions to Section 300 IPC.
18. We have considered the above submissions.
19. Admittedly, the occurrence had taken place at the house of the deceased, that too at about 5.30 a.m. P.W. 1-the mother of the deceased, by all means, would have been present at the house. She has stated that when she returned to her house, the accused entered into the house and cut the deceased repeatedly. There is no reason to reject the evidence of P.W. 1. Though this witness has been subjected to lengthy cross examination, nothing has been brought on record to disbelieve the evidence of P.W. 1. P.W. 1 is a natural witness and her evidence deserves acceptance.
20. So far as P.W. 2 is concerned, it is the contention of the learned senior counsel that he would not have been present at the place of occurrence at the crucial moment. Similar is his contention with regard to P.W. 3 also. Of course, it is true that if a witness claims to be a chance witness, unless his presence is proved by means of proper explanation, the presence of the said witness is doubtful.
21. In this case, P.Ws. 2 and 3 have explained as to how they came to be present at the place of occurrence. We do not find any reason to reject the same. Thus, we hold that P.Ws. 2 and 3 were present near the house of the deceased at 5.30 a.m. They have further stated that they saw the accused running out of the house with blood stained aruval. Immediately they rushed into the house and found the deceased lying dead in a pool of blood.
22. Though P.Ws. 2 and 3 are residents of the next street and though they are closely related to the deceased, on that score, the evidences of P.Ws. 2 and 3 cannot be rejected, because in our considered opinion, their evidences inspire the fullest confidence of this Court.
23. So far as the evidence of P.W. 4 is concerned, he is a neighbour. He heard the cry of P.W. 1 and when he rushed to the house of the deceased, he found the accused fleeing away from the place of occurrence in a motorcycle. His evidence also duly goes to support the case of the prosecution that it was this accused who committed murder and escaped in the motorcycle.
24. The next contention of the learned senior counsel is that it is highly unbelievable that the accused would have been arrested on 20.02.2010. According to him, there is no explanation by the prosecution as to why he was not arrested when he was in the hospital. In this regard, we may say that because the accused was undergoing treatment in the hospital and since his condition was bad, the Investigating Officer would have thought it fit not to arrest him at that time. Thus, in our considered opinion, simply because the accused was not arrested when he was undergoing treatment, we cannot disbelieve the case of the prosecution that he was arrested on 20.02.2010 and on his confession, the material objects were recovered.
25. Thus, from the evidences available on record, we firmly hold that the prosecution has proved beyond reasonable doubt that it was this accused who cut the deceased with aruval and caused her death. Thus, it is a culpable homicide.
26. The next contention of the learned senior counsel for the appellant is that even assuming that it was this accused who had caused the death of the deceased, still the offence would fall only under Section 304 (ii) of I.P.C., as according to the learned senior counsel, the accused acted out of sustained provocation. In order to substantiate the said contention, the learned senior counsel would submit that this Court may consider the confession of the accused made to the police on 20.02.2010 in its entirety.
27. Now, let us consider as to whether the confession of the accused made to the police could be looked into in his favour. In this regard, it need not be over emphasized that Section 25 of the Evidence Act, does not declare a confession of an accused made to a police officer as irrelevant. Before making further discussion on this aspect, let us have a cursory look into Section 25 of the Act, which reads as follows:-
25. Confession to police officer not to be proved.-No confession made to a police officer shall be proved as against a person accused of any offence.
28. A close reading of the above provision would make it abundantly clear that a confession made to a police officer cannot be proved against him. But, undoubtedly, it can be, proved in his favour. Thus, the crucial question to be decided on the admissibility of a confession to a police officer is as to whether the said confession is sought to be proved against the accused. For any reason, if the Court finds that the confession is in no way against the interest of the accused, and if the accused intends to use it in his favour, then, such confession, though made to a police officer, while in custody, is still admissible in evidence under Section 24 of the Act, but subject to the limitation imposed under section 25 of the Act. During the course of the trial, if the accused finds that the confession is in his favour and not against his interest, he can certainly rely on the said confession by proving the same in evidence. But, while appreciating the said confession, if the Court finds that a part of the confession, which is in favour of the accused, is not believable, then, it will not be permissible for the Court to rely on the rest of the portion, where the accused had admitted his guilt. Let us have the following illustration on this aspect:-
Illustration:- "A is accused of murder. During the course of investigation, while in custody of police, he makes a confession, where he admits that he only attacked the deceased in exercise of right of private defence.
29. This confession cannot be admitted or used against the accused so as to prove the fact that the accused attacked the deceased. But, in order to prove the right of private defence, the accused can very well rely on the above confession in toto. If the Court believes the entire confession, then, the Court may give the benefit of general exception contained in Section 100 of the Indian Penal Code. In the event, the Court is not satisfied that the accused had exercised the right of private defence, while rejecting the said plea of the accused, the Court is precluded from using the rest of the confession against him, where he has stated that he only attacked the deceased. Similarly, in a case, where the accused admits that he only attacked the deceased out of grave and sudden provocation, he will be at liberty to prove the entire confession in his favour. But, simply because a confession has been admitted as a document, that too, on the side of the accused, the Court cannot use it against him for any purpose so as to hold him guilty. As we have already pointed out, the Court can use it only in favour of the accused and not against him at all for any purpose.
30. In our experience, we have seen that there is general reluctance on the part of the defence lawyers to tacitly admit the confession of an accused in evidence. This is because of the apprehension in the mind of the legal fraternity that in the event the confession is admitted in evidence as a defence document, the Court may get influenced by the said confession and the Court may use the confession against the accused to convict him based on the said confession. But, we are not prepared to say that the said apprehension is totally baseless. It is also in our experience that many Trial Courts have slight lack of understanding regarding the distinction between using a confession made by the accused to the police against him and using the same in his favour. As we have pointed out already, simply because a confession to the police has been admitted in evidence, on the side of the defence, it does not mean that the accused himself concedes that the same could be used against him. The only option available for the Court is to use the confession in favour of the accused if it is reliable and not to use the same either in full or in part against the accused. If the Court is not inclined to use the confession in favour of the accused, then, the Court is obliged to eschew the entire confession from consideration.
31. In the case on hand, the confession made by the accused to the police, during the course of investigation, while in custody, has not been proved in evidence at all in favour of the accused. But, now before this Court, it is contended by the learned Senior Counsel for the appellant that though the said confession has not been proved in evidence in favour of the accused, the same could be looked into by this Court in favour of the accused. The learned Senior Counsel placed before us the Judgment of a Division Bench of this Court in Mottai Thevar Vs. State, reported in MANU/TN/0235/1952 : AIR 1952 Mad, 586, wherein in Paragraph No. 10, the Division Bench has held as follows:-
10. Section 25, Indian Evidence Act says that "no confession made to a police officer shall be proved as 'against' a person accused, of any offence". I underline (here in single quotation) the word 'against'. The confession does not therefore prohibit the use of it in favour of the accused. In the majority of cases the confessions are sought to be used only against the accused. The cases in which such confessions would or can be used in favour of the accused will be very few and they will be the exceptions to the general rule....
32. The said Judgment was, later on, followed by yet another Division Bench of this Court in re. Ganesan, reported in MANU/TN/0469/1973 : 1974 Cr. L.J., 381. Subsequently, in Mohd. Fazluddin Vs. State reported in MANU/TN/7613/2006 : 2007 (1) MWN (Cr) 155, yet another Division Bench of this Court has followed the above two Judgments.
33. Relying on the said Judgment, the learned Senior Counsel would submit that in the case on hand, though the confession dated 20.02.2010 has not been proved in evidence, the same could be used in his favour at this stage so as to hold that the accused acted out of sustained provocation, and thus, his act would squarely fall within the ambit of first proviso to Section 300 of the Indian Penal Code.
34. Since consistently number of Division Benches of this Court have taken the view that the confession could be looked into by this Court, though not proved in evidence and since the learned Senior Counsel has invited us to use the confession of the accused in his favour, we have gone through the said confession to find as to whether it could be used in favour of the accused. But, 'alas' we find nothing in the said confession statement in favour of the accused so as to probabilize the defence theory that the accused had acted out of sustained provocation. In this regard, we may refer to the much celebrated Judgment of the Hon'ble Supreme Court on sustained provocation in K.M. Nanavathi Vs. State of Maharashtra reported in MANU/SC/0147/1961 : AIR 1962 SC 605, where it has been held as follows:-
The Indian Law, relevant to the present enquiry, may be stated thus:-
(1) The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused in the situation in which the accused was placed would be so provoked as to lose his self-control.
(2). In India, words and gestures also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code.
(3). The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
(4). The fatal below should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for predetermination and calculation.
35. Applying the principles stated in K.M. Nanavathi's case, if we look into the confession of the accused, in the present case, we do not find any material at all to hold that the accused acted out of sustained provocation. According to the learned Senior Counsel, the occurrence, in this case, was on the next day of early morning. Thus, there was no time for passion to cool down. But, we find that, there is evidence that the accused went to the house of the accused with a formidable weapon. This only indicates the premeditation of the accused to kill the deceased. Thus, in our considered view, a reading of the entire confession of the accused, coupled with the other circumstances, we find, there is nothing even to suggest remotely that the accused had acted out of loss of self control. Apart from the above, the fact that the injuries were caused repeatedly on the neck, the nature of the injuries, the number of injuries, the time chosen by him, etc., would all go to prove that the accused had gone with premeditation to cause the death of the deceased. Thus, we hold that the act of the accused does not fall within the first exception to Section 300 of the Indian Penal Code. It falls squarely within the first limb of Section 300 of the Indian Penal Code, and therefore, he is liable to be convicted under Section 302 of the Indian Penal Code. Thus, we do not find any infirmity in the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence imposed thereunder.
36. Now, coming to the conviction under Section 449 IPC. It has been clearly proved that the accused entered into the house with the weapon of offence. This shows that he went to her house for the purpose of committing murder. Thus, the act of the accused is an offence punishable under Section 449 IPC. But so far as the quantum of punishment for the said offence is concerned, in our considered view, life sentence imposed by the trial Court is not proportionate to the gravity of the offence. In our considered view, rigorous imprisonment for 10 years and fine of Rs. 10,000/- (Rupees ten thousand only) would meet the ends of justice and the same would be fair, just and reasonable. In view of the above, the appeal is partly allowed on the following terms:
(i) The conviction and sentence imposed on the appellant for the offence under Section 302 is confirmed.
(ii) the conviction of the appellant under Section 449 IPC is confirmed, but, the sentence is modified as one of rigorous imprisonment for 10 years., besides a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for one year.
(iii) the sentences are ordered to run concurrently.
(iv) the period already undergone shall be given set off.
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