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PETITIONER: SAHOO

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 16/02/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1966 AIR   40            1965 SCR  (3)  86  CITATOR INFO :  R          1985 SC  48  (15)

ACT:     Confession--Accused     muttering     self-incriminating statement      to      himself--Whether      amounts      to confession--Communication   to   another   person    whether necessary.

HEADNOTE:    The Sessions Judge in convicting the appellant of  murder took  into account an extra-judicial confession  alleged  to have  been made by him when shortly after the murder he  was muttering to himself that he had finished the deceased.  The High  Court confirmed the conviction. In appeal before  this Court  it was  contended that the muttering of  the  accused did  not amount to a confession  as it was implicit  in  the concept  of  confession whether judicial or  extra  judicial that it should be communicated to another.  A man  can.  not confess to himself; he can only confess to another.     HELD:  (i)  Sections 24 to 30 of the Evidence  Act  deal with  the admissibility of confessions, but  the  expression ’confession’ is not defined. Shortly stated a confession  is a statement made by an accused admitting his guilt. [88 E] Pakala Narayana v. R.L.R. 66 I.A. 66, referred to. (ii) It is not a necessary ingredient of the term confession that  it  shall be communicated to another.  The  dictionary meaning  of the  term does not warrant any  such  extension, nor  the  reason  of the rule  underlying  the  doctrine  of admission or confession demands it. The probative nature  of an   admission  or  confession  does  not  depend   on   its communication to another though just like any other piece of evidence  can  be admitted in evidence only  on  proof.  The following  illustration pertaining to a  written  confession brings out the idea: A kills B; enters in his diary that  he had killed him, puts it in his drawer and absconds. When  he places his act on record he does not communicate to another; indeed he does not have any intention of communicating it to a third party. Even so at the trial the said state agent  of the accused can certainly be proved as a confession made  by him.  If that be so in the case of a statement  in  writing, there  cannot be any difference in principle in the case  of

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an oral statement, [88 H-89 C]     Bhogilal  Chunilal  Pandya v. State of  Bombay,   [1959] Supp.  1 S.C.R.310,reliedon. (iii)   But  there  is  a  clear  distinction  between   the admissibility  of an item. of evidence and the weight to  be attached  to it. A confessional soliloquy is a direct  piece of evidence. Generally such soliloquies are mutterings of  a confused mind. Before such evidence can be accepted it  must be established by cogent evidence what were the exact  words used  by  the  accused.  Even if  so  much  was  established prudence  and  justice demand that such evidence  cannot  be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. [90 B, D] In  the  present case the confession along  with  the  other evidence of circumstances was sufficient to prove the  guilt of the appellant.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 248  of 1964. 87     Appeal  from the judgment and order dated September  16, 1964 of the Allahabad High Court in Criminal Appeal No.  348 of 1964 and capital sentence No. 26 of 1964. P.C. Khanna, for the appellant.  O.P. Rana, for the respondent.   The Judgment of the Court was delivered by Subba  Rao,  J.  Sahoo,  the appellant,  is  a  resident  of Pachperwa  in the District of Gonda. He has two sons,  Badri and  Kirpa Shanker. He lost his wife years ago.  His  eldest son,  Badri, married one Sunderpatti. Badri was employed  in Lucknow,  and his wife was residing with his father.  It  is said that Sunderpatti developed illicit intimacy with Sahoo; but  there were incessant quarrels between them.  On  August 12, 1963, during one of those quarrels,Sunderpatti ran  away to  the  house  of one Mohammed  Abdullah  ,a  neighbour  of theirs. The appellant brought her buck, and after some wordy altercation  between  them they slept in the  only  room  of their  house.  The only other inmate of the  house  was  the appellant’s  second  son, Kirpa Shanker, a lad  of  about  8 years.  On the morning of August 13, 1963,  Sunderpatti  was found with serious  injuries in the room of the house  where she  was  sleeping and the appellant was not in  the  house. Sunderpatti  was  admitted in the Sadar Hospital  Gonda,  at 5.25  p.m. on that day and she died on August 26, 1963 at  3 p.m.  Sahoo  was  sent  up for trial  before  the  Court  of Sessions,  Gonda,  on a charge under s. 302  of  the  Indian Penal Code.     The  learned Sessions Judge, on a consideration  of  the entire  evidence  came to the conclusion that  Sahoo  killed Sunderpatti. On that finding, he convicted the accused under s. 302 of the Indian Penal Code and sentenced him to  death. On  appeal, a Division Bench of the High Court at  Allahabad confirmed  both the conviction and the sentence.  Hence  the appeal.     Except  for  an extra-judicial  confession,  the  entire evidence in the case is circumstantial. Before we advert  to the  arguments advanced in the appeal it will be  convenient to narrate the circumstances found by the High Court,  which are as follows: (1) The accused had illicit connections with the  deceased;  (2) the deceased and the  accused  had  some quarrel  on  the  Janmashtami day in  the  evening  and  the deceased had to be persuaded through the influence of  their

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neighbors,  Mohammed Abdullah and his womenfolk, to go  back to  the house of the accused; (3) the deceased was  seen  in the  company of the accused for the fast time when  she  was alive;  (4) during the fateful night 3 persons, namely.  the accused.  the deceased and the accused’s second  son,  Kirpa Shanker  (P.W. 17), slept in the room inside the house;  (5) on  the early morning of next day, P.W. 17 was asked by  his father  to go out to attend to calls of nature, and when  he came  back  to  the  verandah of the  house  he  heard  some gurgling sound and he saw his father going out of the  house murmuring something; and (6) P. Ws. 9, 11, 13 88 and  15  saw the accused going out of the house at  about  6 a.m.   on  that  day  soliloquying  that  he  had   finished Sunderpatti and thereby finished the daily quarrels.   This  Court  in a series of decisions has  reaffirmed  the following  well-settled rule of  "circumstantial  evidence". The  circumstances from which the conclusion of guilt is  to be drawn should be in the first instance fully  established. "All the facts so established should be consistent only with the  hypothesis  of  the  guilt  of  the  accused  and   the circumstances should be of a conclusive nature and  tendency that they should be such as to exclude other hypotheses  but the one proposed to be proved." Before we consider whether the circumstances narrated  above would  stand the said rigorous test, we will at  the  outset deal  with the contention that the soliloquy of the  accused admitting his guilt was not an extra-judicial confession  as the Courts below held it to be. If it was an  extra-judicial confession, it would really partake the character of  direct evidence rather than that of circumstantial evidence. It  is argued  that  it is implicit in the concept  of  confession, whether  it is extra-judicial or judicial, that it shall  be communicated to another. It is said that one cannot  confess to  himself: he can only confess to another. This raises  an interesting   point,  which  fails  to  be  decided   on   a consideration  of  the relevant provisions of  the  Evidence Act.  Sections  24 to 30 of the Evidence Act deal  with  the admissibility of confessions by accused persons in  criminal cases.  But the expression "confession" is not defined.  The Judicial  Committee in Pakala Narayana v. R.(1) has  defined the said expression thus:               "A  confession  is  a  statement  made  by  an               accused’ which  must either admit in terms the               offence. or at any rate substantially all  the               facts which constitute the offence." A scrutiny of the provisions of ss. 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is  a genus. admission is the species and confession is  the sub-species.  Shortly  stated, a confession is  a  statement made  by  an  accused admitting his  guilt.  What  does  the expression  "statement" mean? The  dictionary   meaning   of the  word  "statement"  is  "the act of stating, reciting or presenting  verbally  or  on paper."  The  term  "statement" therefore, includes both oral and written statements. Is  it also  a  necessary ingredient of the term that it  shall  be communicated to another? The dictionary meaning of the  term does  not warrant any such extension; nor the reason of  the rule  underlying  the doctrine of  admission  or  confession demands it. Admissions and confessions are exceptions to the hearsay  rule. The Evidence Act places them in the  category of relevant evidence, presumably on the ground that, as they are  declarations against the interest of the person  making them, they are probably true. The probative value of 89

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an  admission  or  a confession does  not  depend  upon  its communication to another, though, just like any other  piece of  evidence, it can be admitted in evidence only on  proof. This  proof in the case of oral admission or confession  can be  offered  only by witnesses who heard  the  admission  or confession,  as the case may be. The following  illustration pertaining to a written confession brings out the said idea: A kills B; enters in his diary that he had killed him,  puts it  in  his drawer and absconds. When he places his  act  on record, he does not communicate to another; indeed, he  does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused  can certainly be proved as a confession made by him. If that  be so  in the case of a statement in writing, there  cannot  be any   difference  in  principle  in  the  case  of  an  oral statement. Both must stand on the same footing. This  aspect of  the doctrine of confession received some treatment  from wellknown  authors  on  evidence,  like  Taylor,  Best   and Phipson.  In "A Treatise on the Law of Evidence" by  Taylor, 11th  Edn.,  Vol. I, the following statement appears  at  p. 596:                     "What  the  accused has  been  overheard               muttering to himself, or saying to his wife or               to  any  other person in confidence,  will  be               receivable in evidence."               In "The Principles of the Law of Evidence"  by               W.M. Best, 12th Edn., at p. 454, it is  stated               much to the same effect thus:                     "Words addressed to others, and writing,               are  no doubt the most usual forms; but  words               uttered in soliloquy seem equally receivable."               We also find the following passage in "Phipson               on Evidence", 7th Edn., at p. 262:                     "A statement which the prisoner had been               overheard muttering to himself,f, if otherwise               than in his sleep, is admissible against  him,               if independently proved." These  passages establish that communication to  another  is not  a necessary ingredient of the concept of  "confession". In  this  context  a  decision of  this  Court  in  Bhogilal Chunilal  Pandya  v The State of Bombay(1) may  usefully  be referred  to.  There  the  question  was  whether  a  former statement made by a witness within the meaning of $. 157  of the  Evidence Act should have been communicated  to  another before  it  could be used to corroborate  the  testimony  of another witness. This Court, after considering the  relevant provisions  of  the  Evidence Act and the  case-law  on  the subject  came  to the conclusion that the  word  "statement" used in s. 157 meant only "something that is stated" and the element of communication was not necessary before "something that  is stated" became a statement under that section.  If, as  we have said, statement is the genus and  confession  is only  a sub-species of that genus, we do not see any  reason why the statement implied in the confession should be given (1) [1959] Supp. 1 S.C.R. 310. 90 a  different meaning. We, therefore, hold that a  statement, whether communicated or not, admitting guilt is a confession of guilt.     But,   there   is  a  clear  distinction   between   the admissibility  of an evidence and the weight to be  attached to  it.  A  confessional  soliloquy is  a  direct  piece  of evidence. It may be an expression of conflict of emotion;  a conscious  effort  to  stifle  the  pricked  conscience;  an argument  to find excuse or justification for his act; or  a

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penitent  or remorseful act of exaggeration of his  part  in the  crime. The tone may be soft and low; the words  may  be confused; they may be capable of conflicting interpretations depending  on witnesses, whether they are biased or  honest, intelligent or ignorant, imaginative or prosaic, as the case may  be. Generally they are mutterings of a  confused  mind. Before such evidence can be accepted, it must be established by  cogent  evidence what were the exact words used  by  the accused.  Even  if  so much was  established,  prudence  and justice  demand that such evidence cannot be made  the  sole ground of conviction. It may be used only as a corroborative piece of evidence.    The circumstances found by the High Court, which we have stated earlier, lead to the only conclusion that the accused must   have  committed  the  murder.  No  other   reasonable hypothesis was or could be suggested.     Further, in this case, as we have noticed earlier, P.W.s 11,  13 and 15 deposed that they clearly heard  the  accused say  when  he opened the door of the house and came  out  at 60’clock  in  the  morning of the fateful day  that  he  had "finished  Sunderpatti,  his  daughter-in-law,  and  thereby finished  the  daily  quarrels". We hold  that  this  extra- judicial  confession  is  relevant  evidence:  it  certainly corroborates   the   circumstantial  evidence   adduced   in the .case.     In  the result, we agree with the conclusion arrived  at by  the High Court both in regard to the conviction and  the sentence. The appeal fails and is dismissed. Appeal dismissed. 91