REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2009 (Arising out of S.L.P. (Crl.) No.1700 of 2008

Shiva Karam Payaswami Tewari …Appellant

Versus

State of Maharashtra …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.  Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay  High  Court  upholding  the  conviction  of  the  appellant  for  the

offence punishable  under Sections 302,  321 and 201 of the  Indian Penal

Code, 1860 (in short the ‘IPC’) and sentence of life, nine months and nine

months respectively and fine with default stipulation.   

3. Background facts in a nutshell are as follows:

The accused Shiva Karam Payaswami Tewar was working in Hotel

Premier run by the complainant  Anthony Xavier at  Dharavi,  Mumbai-70.

The  accused  was  entrusted  with  the  work  of  preparation  of  spices.

Muttukumar (hereinafter  referred  to  as the  ‘deceased’)  was  working  as  a

manager in the said hotel.  Considering the nature of their work the accused

as well as Muttukumar used to stay overnight in the hotel.

On 31.8.1995 in the evening complainant Anthony Xavier went to the

Hotel Premier and after usual supervision and talk with manager at night he

returned. At that time the accused as well as Muttukumar were in the hotel.

On the next day morning i.e. on 1.9.1995 one Murugan Shetiya working in

the hotel went to Anthony (PW-1) and told him that the hotel is open and

Muttukumar and accused are not present in the hotel. He also informed that

cash  drawer  was  open  and  tape  recorder  was  found  missing.  Naturally,

complainant Anthony immediately went to the hotel. When he was making

query, Arun Pujari, who was running Pan bidi shop near the hotel and taxi

2

driver Suresh Kumar who often used to park his taxi near the hotel told him

that accused met them at about 5.30 a.m., and made enquiry about the bus

going to Bangalore. When complainant took survey of the hotel he found

that  cash box was open and tape recorder kept in the hotel  was missing.

There was no cash in the cash box.  According to him on the previous night

the manager  i.e.  deceased  had informed him that  on  that  day amount  of

Rs.3500/- was collected and the same was kept in the cash box.  Report was

lodged with the police and investigation was undertaken.  Appellant  was

suspected to be the murderer.            

After completion of investigation charge-sheet was filed.  Since the

accused  pleaded  innocence,  trial  was  held.   Though  there  was  no  direct

evidence the Trial Court held that the circumstantial evidences adduced by

the prosecution were sufficient.  Particular reference was made to the extra-

judicial  confession  made  before  PW-1.  Accordingly,  conviction  was

recorded by the Trial Court.  Appellant filed appeal before the High Court

which upheld the conviction.

Before the High Court the stand was that even if the extra judicial

confession is accepted to be correct for the sake of argument, case under

Section 302 IPC is not made out.  The stand of the prosecution was that the

3

extra-judicial  confession  clearly  showed  both  the  intention  and  the

knowledge.  Accordingly, the High Court dismissed the appeal.  The stand

taken  before  the  High  Court  was  reiterated  by  the  parties.  In  addition,

learned counsel for the appellant submitted that there was no pre-meditation

and in the course of quarrel, a wooden log which was lying was picked up

by the appellant in a heat of passion and assault was made. Only one blow

was given and, therefore, Section 302 IPC, in any event, has no application.

It  was  submitted  that  extra-judicial  confession  is  a  very  weak  piece  of

evidence and should not have been made the basis for conviction.

4. We shall first deal with the question regarding claim of extra judicial

confession.  Though it  is  not  necessary that  the witness should speak the

exact words but there cannot be vital and material difference. While dealing

with a stand of extra judicial confession, Court has to satisfy itself that the

same was voluntary and without any coercion and undue influence. Extra

judicial confession can form the basis of conviction if persons before whom

it is stated to be made appear to be unbiased and not even remotely inimical

to  the accused.  Where there  is  material  to  show animosity,  Court  has  to

proceed  cautiously  and  find  out  whether  confession  just  like  any  other

evidence  depends  on  veracity  of  witness  to  whom it  is  made.  It  is  not

invariable that the Court should not accept such evidence if actual words as

4

claimed to have been spoken are not reproduced and the substance is given.

It will depend on circumstance of the case. If substance itself is sufficient to

prove culpability and there is no ambiguity about import of the statement

made by accused, evidence can be acted upon even though substance and

not actual words have been stated. Human mind is not a tape recorder which

records what has been spoken word by word. The witness should be able to

say as nearly as possible actual words spoken by the accused. That would

rule out possibility of erroneous interpretation of any ambiguous statement.

If word by word repetition of statement of the case is insisted upon, more

often  than  not  evidentiary  value  of  extra  judicial  confession  has  to  be

thrown out as unreliable and not useful.  That cannot be a requirement in

law. There can be some persons who have a good memory and may be able

to repost exact words and there may he many who are possessed of normal

memory and do so. It is for the Court to judge credibility of the witness’s

capacity  and  thereafter  to  decide  whether  his  or  her  evidence  has  to  be

accepted  or  not.  If  Court  believes  witnesses  before  whom confession  is

made  and  is  satisfied  that  confession  was  voluntary  basing  on  such

evidence,  conviction  can  be  founded.  Such  confession  should  be  clear,

specific and unambiguous.

5

5. The  expression  ‘confession’  is  not  defined  in  the  Evidence  Act,

‘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.  The  dictionary  meaning  of  the  word  ‘statement’  is  “act  of

stating; that which is stated; a formal account, declaration of facts etc.” The

word ‘statement’ includes both oral and written statement. Communication

to another is not however an essential component to constitute a ‘statement’.

An accused might have been over-heard uttering to himself or saying to his

wife  or  any  other  person  in  confidence.  He  might  have  also  uttered

something  in  soliloquy.  He  might  also  keep  a  note  in  writing.  All  the

aforesaid  nevertheless  constitute  a  statement.  It  such  statement  is  an

admission  of  guilt,  it  would  amount  to  a  confession  whether  it  is

communicated  to  another  or  not.  This  very  question  came  up  for

consideration  before  this  Court  in  Sahoo v.  State  of  Uttar  Pradesh,  AIR

1966 SC 40: (1966 Cr1 U 68). After referring to some passages written by

well known authors on the “Law of Evidence” Subba Rao, J. (as he then

was) held that “communication is not a necessary ingredient to constitute

confession”. In paragraph 5 of the judgment, this Court held as follows:

...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

6

probative value of an admission or a confession goes not to  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 pr confession. as the case may be....  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  a  different  meaning.  We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt

                                                       (Emphasis supplied)

6. The  extra-judicial  confession  purported  to  have  been  made  before

PW1 reads as follows:

“He was brought to the hotel in a taxi.  In enquired with  the  accd.  what  he  did  to  Muttukumar.  The  accd. disclosed that he and Muttukumar got up at about 4.30 a.m. and while he was preparing spices there was quarrel between them; and as a result of the quarrel he had hit Muttukumar  with  a  wooden  log  used  for  cutting vegetables  and  Muttukumar  had  died  of  the  injuries sustained during the assault.”          

7. In the instant case the extra-judicial confession is believable as rightly

done by the Trial Court and the High Court. The same not was made to a

stranger but to a friend.  Therefore, the Trial Court and the High Court have

rightly  acted  upon  the  extra-judicial  confession.   At  the  same  time  the

7

background in which the assault has been made clearly shows that Section

302 IPC has no application.  The assault was made in the course of sudden

quarrel without pre-meditation.  The accused was not armed at the relevant

point of time.  Even according to prosecution he picked up the wooden log

which was lying there and made the assault.   

8. That being the position, we alter the conviction to Section 304 Part II

IPC.  Custodial sentence of 8 years would meet the ends of justice.  The

appeal is allowed to the aforesaid extent.

9. We record our appreciation for the able manner in which Mr. Nirmal

Chopra, Amicus Curiae, assisted the Court.      

……….………………………….J. (Dr. ARIJIT PASAYAT)

…………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, January 21, 2009

8