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PETITIONER: KANDA PADAYACHI alias KANDASWAMY

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT27/08/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. ROY, SUBIMAL CHANDRA

CITATION:  1972 AIR   66            1972 SCR  (1) 450  1971 SCC  (2) 641

ACT: Evidence Act (1 of 1872), ss. 21 and 26-Statement to doctor, admitting incriminating fact-Made by accused while in police custody-If  confession and hence irrelevant or  relevant  as admission.

HEADNOTE: The  conviction of the appellant by the Sessions  Court  for the offence of murder was confirmed by the High Court.   The evidence was circumstantial.  One of the circumstances was a statement by the appellant, while in police custody, to  the doctor,  which established the presence of the appellant  in the deceased’s room at about the time: of death and together with other circumstances, that he alone caused the death  of the deceased. On  the question whether the statement was a confession  and hence irrelevant under s. 26 of the Evidence Act, 1872. HELD  : A confession has to be a direct  acknowledgement  of the:  guilt of the offence in question and such as would  be sufficient  by itself for conviction.  If it falls short  of such  a plenary acknowledgement of guilt, it would not be  a confession  even  though the statement is of  some  incrimi- nating fact which, taken along with other evidence, tends to prove the guilt of the accused.  Such a statement is only an admission and not a confession. [454 F-G] Palvinder Kaur v. Punjab, [1953] S.C.R. 94, Faddi V.  Madhya Pradesh, [1964] 6 S.C.R. 312 and A. Nagesia v. Bihar, A.I.R. 1966 S.C. 119, 123, followed. Pakala Naravana Swami v. The King, 66 I.A. 66, applied. Observations of Shah, J. in U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. 14, 21, explained. Queen Empress v. Nana, (1889) I.L.R. 14 Bom. 260, overruled.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 19  of 1971. Appeal  from the judgment and order dated April 29, 1970  of the Madras High Court in Criminal Appeal No. 861 of 1969 and Referred Trial No. 69 of 1969.

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S.   K. Gambhir, for the appellant. A.   V. Rangam, for the respondent. The Judgment of the Court was delivered by Shelat,  J. This appeal is against the judgment of the  High Court  of Madras by which it confirmed the appellant’s  con- viction under sec. 302 of the Indian Penal Code and the sen- tence  of  death  awarded  to  him.   It  is  founded  on  a certificate  granted by the High Court under Art.  134(1)(c) of the Constitution. 451 At the material time the appellant, a widower for  sometime, was living in village Valayamadevi near the house where  the deceased  Natesa Padayachi and his wife Meenakshi  (P.W.  1) used  to  reside.   In  course of  time  the  appellant  and Meenakshi  developed illicit intimacy.  The deceased  Natesa was  serving  as a driver in a rice mill  belonging  to  one Sundaralingam Pillai and his son Guhan Pillai (P.W. 6).  One afternoon  the deceased returned home a little earlier  than usual and found his wife and the appellant in a compromising position.   A  quarrel ensued between the deceased  and  the appellant when the deceased warned the appellant against his coming to his house.  The appellant retorted that instead of quarreling  with him the deceased should control  his  wife. To   prevent  the  appellant  visiting  his  residence   the appellant  and  his wife went to reside in a  portion  of  a Chatram belonging to his master.  Enraged by this change  of residence  by the deceased, the appellant demanded,  through one Govindaraja (P.W. 2), that the deceased should return to him the presents given by him to his wife.  He repeated this demand  about two days prior to the date of  the  occurrence through Subharayan (P.W. 5).  On July 7, 1969, the appellant visited  the house of the deceased, but P.W. I scolded  him, whereupon the appellant told her that she was talking to him in that vain because of her husband, and that if he were  to do away with her husband she would not be able to  withstand him. On  July 10, 1969, Meenakshi went to another village to  see the  deceased’s brother who was ailing.  The  appellant  saw her and her children going.  At about 9.30 that night he was in  the tea shop of P.W. 3 when he enquired if the  deceased had  returned home from the rice mill where he was  working. Next morning P.W. 5 and P.W. 6 found Natesa lying dead  with cut  injuries  on  his neck and other  parts  of  his  body. Amongst the articles lying near him, there was a towel which belonged,  according to the prosecution, to  the  appellant. The evidence was that the towel had a mark of the  washerman who used to wash the appellant’s clothes.  P.W. 6 lodged the first  information  report at about 7.30 that  morning  very soon after he and P.W. 5 had discovered the ghastly tragedy. There was no direct evidence to establish as to who was  the assailant   of  Natesa.   But  the  prosecution  relied   on circumstantial evidence, namely, (1) that the appellant  had a  motive to do away with the deceased as the  deceased  had come  in  the  way  between him and P.W.  1,  (2)  that  the appellant  knew  that P.W. I and her children had  left  the village that morning and the deceased’ would be alone in the house, (3) that the appellant had made enquiries that  night to find out if the deceased had returned home from the  rice mill. (4) that the towel M.O. 6 belonging to him 452 was  found  lying  near the dead body of  Natesa  which  was identified  by the washerman as belonging to him,  (5)  that when  the appellant surrendered at the police  station  his clothes  M.O.  7 and 9 were found to have  stains  of  human blood, (6) discovery by the appellant of the aruval M.O.  1,

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(7)  injuries on the appellant, namely, an abrasion  on  his toe  and  multiple  linear abrasions on his  right  arm  and chest, and (8) his statement to the Doctor (P.W. 8), to whom the  police  took  the appellant after his  arrest,  to  the effect  that  it was the deceased Natesa who at  about  mid- night  on July 10, 1969 had caused the injury on his toe  by biting him. Both  the  Sessions Court and the High  Court  accepted  the evidence  as  to  these circumstances and  found  that  that evidence clearly pointed out the appellant as the person who had  caused  Natesa’s  death, and on that  basis  found  the appellant guilty under sec. 302. Counsel for the appellant raised two contentions before  us. The  first  was that both the Sessions Judge  and  the  High Court  had  not  properly  construed  important  pieces   of evidence  and had drawn inferences which were not  warranted by the facts established by evidence.  The second, which was more  substantial and requires consideration, was  that  the statement  made by the appellant before the Doctor (P.W.  8) that  it was the deceased who had caused the injury  on  his toe on the fatal night was inadmissible under sec. 26 of the Evidence  Act, 1872 as it was made whilst the appellant  was in the custody of the police. On  the  first  point, counsel took us to  the  evidence  of several  witnesses including the medical evidence and  tried to  show  that the injuries on the deceased could  not  have been caused by a weapon like the aruval, M.O. 1,  discovered by  the  appellant.  In our view, counsel was  not  able  to point  out  any misconstruction ,of evidence either  by  the Sessions  Court or by the High Court,  Equally  unsuccessful was  his attempt to show that the injuries on  the  deceased were  not  capable of being caused by a weapon such  as  the aruval,  M.O. 1. The evidence was clear and unambiguous  and we  find  no  reason why it could not  be  accepted  by  the Sessions  Court  or the High Court.  The  discovery  of  the towel  belonging  to  the appellant near the  dead  body  of Natesa the next morning and his statement to the Doctor that it  was  the deceased who had caused the injury on  his  toe were  sufficient  to clinch his presence in  the  deceased’s house  at about midnight on July 10, 1969,  a  circumstance, together  with  the  rest of the  circumstances,  enough  to establish a chain leading to the conclusion that he was  and could be the only person who had caused Natesa’s death.   To those two circumstances must be added the 453 evidence as regards the stains of human blood on his clothes at  the time of his arrest.  The first contention raised  by counsel. therefore, must fail. As  regards  the  second contention, we think  that  on  the strength of the decisions, both of the Privy Council and  of this Court, the High Court was right in its conclusion  that the  appellant’s  statement before the Doctor  was  properly admitted  in  evidence  and  could be,  relied  upon  as  an admission under sec. 21 of the Evidence Act, 1872.   Nothing was  and  could be found against the Doctor to  prevent  his evidence  about  the  statement  made  before  him  by   the appellant   from   being  accepted.   The   only   question, therefore,  is  whether the statement  was  inadmissible  by reason of sec. 26. Secs.  24  to 26 form a trio containing  safeguards  against accused  persons being coerced or induced to confess  guilt. Towards that end sec. 24 makes a confession irrelevant in  a criminal proceeding if it is made as a result of inducement, threat  or  promise  from  a person  in  authority,  and  is sufficient to give an accused person grounds to suppose that

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by  making it he would gain any advantage or avoid any  evil in reference to the proceedings against him.  Under sec. 25, a   confession   made  to  a  police   officer   under   any circumstances is not admissible in the evidence against him. Sec. 26 provides next that no confession made by a  prisoner in  custody even to a person other than a police officer  is admissible  unless  made  in the  immediate  presence  of  a magistrate. The expression ’confession’ has not been defined in the Evi- dence Act.  But Stephen in his Digest of the Law of Evidence defined  it  as an admission made at any time  by  a  person charged with crime stating or suggesting the  inference,that he  committed a crime.  Straight J., in R. v. Jagrup(1)  and Chandawarkar, J., in R. v. Santya Bandhu (2 ) , however, did not  accept  such  a wide definition  and  gave  a  narrower meaning  to the expression ’confession’ holding that only  a statement which was a direct acknowledgement of guilt  would amount to confession and did not include merely  inculpatory admission  which  falls short of being admission  of  guilt. The   question  as  to  the  meaning  of  ’confession’   was ultimately  settled in 1939 by the Privy Council  in  Pakala Naravana  Swami  v. The King Emperor(3) wherein at  page  81 Lord  Atkin  laid down that no  statement  containing  self- exculpatory  matter  could  amount  to  confession  if   the exculpatory (1)I. L.R. 7 All. 646. (3) 66 I.A. 66. (2) 4 Bom.  L.R. 633. 454 statement was of some fact which if true would negative  the offence alleged to be confessed.  He observed :               "Moreover,  a confession must either admit  in               terms   the   offence,   or   at   any    rate               substantially  all the facts which  constitute               the   office.   An  admission  of  a   gravely               incriminating   fact,  even   a   conclusively               incriminating   fact,  is  not  of  itself   a               confession,   e.g.,  an  admission  that   the               accused is the owner of and was in recent pos-               session of the knife or revolver which  caused               death  with no explanation of any other  man’s               possession.   Some confusion appears  to  have               been caused by the definition of confession in               art.  22  of Stephen’s Digest of  the  Law  of               Evidence  which  defines a  confession  as  an               admission made at any time by a person changed               with crime stating or suggesting the inference               that   he  committed  that  crime.    If   the               surrounding articles are examined, it will  be               apparent that the learned author after dealing               with admissions generally is applying  himself               to admissions in criminal cases, and for  this               purpose defines confessions so as to cover all               such  admissions, in order to have  a  general               term  for use in the three following  articles               :-confession secured by inducement, made  upon               oath,  made under a promise of  secrecy.   The               definition  is not contained in  the  Evidence               Act,  1872;  and in that Act it would  not  be               consistent with the natural use of language to               construe  confession  as  a  statement  by  an               accused  "suggesting  the  inference  that  be               committed" the crime." As  held  by  the Privy Council, a confession has  to  be  a direct  acknowledgement  of  the guilt  of  the  offence  in question  and  such  as would be sufficient  by  itself  for

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conviction.    If   it  falls  short  of  such   a   plenary acknowledgement  of guilt it would not be a confession  even though  the  statement is of some incriminating  fact  which taken  along with other evidence tends to prove  his  guilt. Such  a statement is admission but not confession.   Such  a definition  was  brought out by Chandawarkar, J.  in  R.  v. Santya  Bandhu(1) by distinguishing a statement giving  rise to an inference of guilt and a statement directly  admitting the crime in question. In  Palvinder Kaur v. Punjab(2), the statement made  by  the accused was that she had placed her husband’s dead body in a trunk  and  had carried it in a jeep and thrown  it  into  a well.  But with regard to the cause of death, the  statement was  that  her husband had accidentally  taken  a  poisonous substance erroneously (1) 4 Bom.  L. R. 633.   (2) [1953] S.C.R. 94.  455 thinking  that  to be a medicine.  This  Court  referred  to Pakala,  Naravana  Swami’s case(1) and the  dictum  of  Lord Atkin  and  held  that a  statement  which  contained  self- exculpatory  matter could not amount to a confession if  the exculpatory  matter  is  of some fact which  if  true  would negative the offence alleged to be confessed.  But the Court added that a statement to be a confession must either  admit in terms of the offence or at any rate substantially all the facts which constitute the offence, and that an admission of a   gravely   incriminating  fact,   even   a   conclusively incriminating  fact, is not of itself a confession.   In  Om Prakash  v. U.P.(2), the appellant was convicted under  sec. 161  read with sec. 109 of the Penal Code.   Two  statements made   by  him,  Exs.   P-3  and  P-4,  to   the   Assistant Agricultural   Engineer,   Aligarh  were  relied   upon   as confessions  of bribery having been given by him  to  public servants  and  upon  which  the High  Court  had  based  his conviction.   This  Court set aside the  conviction  holding that  neither  of the two documents amounted  to  a  plenary acknowledgement  of  the offence, that the  statements  were capable  of being construed as complaints by him  of  having been  cheated by the public servants named therein and  that at best they might arouse suspicion that he had bribed them. In  this  conclusion,  the Court  approvingly  cited  Pakala Naravana  Swami’s case(1) and relied on the meaning  of  the word ’confession’ given therein by Lord’ Atkin.  In Faddi v. Madhya  Pradesh(3), the appellant filed a first  information report  on the basis of which the dead body of his step  son was recovered and three persons were arrested.  As a  result of  the investigation, however, the appellant was  arrested. and  was sent up for trial which resulted in his  conviction and a sentence of death.  In an appeal before this Court, he contended  that  the first information report ought  not  to have been admitted by reason of sec. 25 of the Evidence  Act and sec. 162 of the Criminal Procedure Code.  The contention was  rejected  on  the  (,round  that  neither  of  the  two provisions barred the admissibility of the first information report as that report was only an admission by the appellant of  certain facts which had a bearing on the question as  to how  and  by whom the murder was committed and  whether  the statement of the appellant in the Court denying the evidence of  certain prosecution witnesses was correct or not.   Such admissions were admissible under sec. 21 of the Evidence Act and as such could be proved against the accused. It  is  true that in Queen-Empress v. Nana (4),  the  Bombay High  Court, following Stephen’s definition  of  confession, held’  that  a statement suggesting the inference  that  the prisoner had’

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(1) 66 I.A.66.                   (3) (1964) 6 S.C.R. 312. (2) A.I.R. 1960 S.C. 409.   (4) (1889) I.L.R. 14 Bom. 260. 456 committed  the  crime would amount to  confession.   Such  a definition  would  not longer be accepted in  the  light  of Pakala  Naravatia Swami’s case(1) and the approval  of  that decision by this Court in Palvinder Kaur’s case(2).  In U.P. v. Deoman Upadhyaya(3), .Shah, J. (as he then was)  referred to a confession as a statement made by a person "stating  or suggesting  the inference that he .had committed  a  crime". From   that  isolated  observation,  it  is   difficult   to say.whether he widened the definition than the one given  by the Privy Council.  But he did not include in the expression ’confession’ an admission of a fact, however  incriminating, which  by itself would not be enough to prove the  guilt  of the crime in question, although it might, together with  the other  evidence  on record, lead to the  conclusion  of  the guilt of the accused person.  In a later case of A.  Nagesia v. Bihar (4) , Bachawat, J., after referring to Lord Atkin’s observations  in Pakala Naravana Swami’s case(1)  and  their approval in Palvinder Kaur’s case (2 ) defined a  confession as "an admission of the offence by a person charged with the offence."  It  is thus clear that an admission  of  a  fact, however  incriminating, but not by itself  establishing  the guilt  of  the maker of such admission would not  amount  to confession  within  the  meaning of ss. 24  to  26  of the Evidence Act. On  the authority of these pronouncements by this Court,  it is ’clear that the statement in question did not amount to a confession.  It was an admission of a fact, no doubt, of  an incriminating  fact, and which established the  presence  of the  appellant in the deceased’s room but which clearly  was not barred under sec. 26. The  Sessions  Judge and the High   Court  were,  therefore, right in holding it to be admissible and in relying upon it. In this view. councel’s second contention also fails and has to be rejected. The appeal fails and is dismissed. V.P.S.                         Appeal dismissed. (1) 66 I.A.66. (2)[1953] S. C. R. 94. (3)  [1961] 1 S.C.R. 14, at 21. (4)  A.I.R. 1966 S.C. 119, at 123. 457