Madras High Court
Ganesan vs State Through on 2 August, 2024
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A.No.118 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.06.2024 / 11.07.2024
PRONOUNCED ON : 02.08.2024
CORAM :
THE HON'BLE MR. JUSTICE M.S.RAMESH
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.A.No.118 of 2019
1.Ganesan
2.Pothum Ponnu ...Appellants/Accused No.1 and 2
Vs.
State through
The Inspector of Police,
Alangiyam Police Station,
Tiruppur District.
[In Crime No.99 of 2015] ...Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) of Code of Criminal
Procedure, 1973, to call for the records and set aside the judgment and
conviction imposed by II Additional Sessions Court cum Mahila Court
(Fast Track Mahila Court), (Full in-charge), Tiruppur District, in S.C.No.204 of
2015 dated 06.04.2017 against the appellants/accused no.1 and 2.
For Appellants : Mr.S.Mohamed Ansar
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1
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Crl.A.No.118 of 2019
Amici Curiae : Mr.N.R.Elango, Sr. Counsel
Mr.Sharath Chandran
JUDGMENT
(Order of the Court was delivered by SUNDER MOHAN,J.)
This Criminal Appeal has been filed by Accused No.1 and 2, challenging
the conviction and sentence imposed upon them vide judgment dated 06.04.2017
in S.C.No.204 of 2015 on the file of the learned II Additional District and
Sessions Judge cum Mahila Court (Fast Track Mahila Court), Tiruppur District.
2 (i). It is the case of the prosecution that the first appellant is the husband
of the deceased whose marriage took place five years before the occurrence; that
they had a daughter who was aged four years; that one year before the
occurrence, the first appellant suspecting that the deceased had illegal
relationship with a neighbour by name Arun Kumar, quarrelled with the
deceased; that thereafter, the first appellant and the deceased shifted their
residence to Coimbatore; that at that time, the first appellant developed intimacy
with the second appellant; that on 17.02.2015, the first appellant took the
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deceased, their daughter and the second appellant and started living together;
that the deceased quarrelled with the first appellant and objected to his having
the second appellant in the house; that on 18.02.2015 at about 9.30 p.m.,
the deceased quarrelled with the first appellant as she found both the appellants
sharing the bed; that she attacked the second appellant; that the second appellant
in turn attacked the deceased with hands; that the deceased attacked the first
appellant also; and that the first appellant thereafter took a wooden log and
attacked the deceased on the head and other parts of the body, strangulated her
neck and thereby caused her death.
(ii) It is further the case of the prosecution that after causing the death of
the deceased, in order to screen the offence, the appellants buried the body of the
deceased in one of the rooms in the house and thereafter placed hollow blocks
and closed it with cement. P.W.1/the Village Administrative Officer, on
information from P.W.2/brother-in-law of the first appellant that a foul smell
emanated from the house of the appellants went to the house and found that a
construction was made in the house that looked like a tomb (rkhjp). Suspecting
foul play, he lodged a complaint [Ex.P1] to the respondent on 23.02.2015 at
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about 6.30 p.m. The FIR [Ex.P19] was registered by P.W.13/Special Sub
Inspector of Police for suspicious death under Section 174 of the Criminal
Procedure Code, 1973, in Crime No. 99 of 2015.
(iii) P.W.14/Deputy Superintendent of Police, took up the investigation.
On 24.02.2015, he went to the scene of the occurrence and prepared Rough
Sketch [M.O.20] and Observation Mahazar [M.O.7] in the presence of the
witnesses. He made a requisition for the conduct of post-mortem, informed the
finger-print expert, dog squad and photographer and requested their presence.
The doctor came to the scene of the occurrence and conducted a post-mortem at
the scene of the occurrence. Since it was a case of suspicious death, initially the
learned Executive Magistrate-cum-Tahsildar conducted an inquest. P.W.14
seized the sand from the place where the deceased was buried [M.O.8], the sand
next to the place where she was buried [M.O.9] and the hollow block [M.O.12]
in the presence of witnesses. He seized the dress materials of the deceased
[M.Os.1 to 3]. On 25.02.2015, he examined the parents of the deceased and
other witnesses. On 27.02.2015, P.W.1/the Village Administrative Officer, came
to the police station along with the first appellant with a special report, which
was marked as Ex.P2. P.W.1, in his special report, stated that the first appellant
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confessed to the crime. It is seen that the first appellant has also signed the said
special report. Thereafter, P.W.14 altered the offences from Section 174 of the
Criminal Procedure Code to Sections 302 and 201 of the Indian Penal Code. He
arrested the first accused at 11.45 a.m., recorded his confession and on his
confession, seized a triangular shaped wooden log. Thereafter, he arrested the
second accused at 2.15 p.m., recorded her confession and on her confession
seized the spade [kz;btl;o] and iron basket [fhiur;rl;o]. Thereafter, both the
appellants were sent for treatment as they had suffered injuries on account of the
scuffle between them and the deceased. P.W.14 examined the other witnesses
and filed the final report for the offences under Sections 302 and 201 r/w 34 of
the IPC.
(iv) On the appearance of the appellants/accused, the provisions of Section
207 Cr.P.C. were complied with, and the case was committed to the Court of
Session in S.C.No.204 of 2015 and was made over to the learned Sessions Judge,
Mahalir Neethimandram [Fast Track Mahila Court], Tiruppur, for trial. The trial
Court framed charges under Sections 302 and 201 of the IPC as against the
appellants, and when questioned, the appellants pleaded 'not guilty'.
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(v) To prove its case, the prosecution examined 14 witnesses as P.W.1 to
P.W.14 and marked 21 exhibits as Exs.P1 to P21, and 12 material objects as
M.O.1 to M.O.12. When the appellants were questioned u/s.313 Cr.P.C., on the
incriminating circumstances appearing against them, they denied the same. The
appellants/accused did not examine any witnesses or mark any documents on
their side.
(vi) The Trial Court, on appreciation and evaluation of oral and
documentary evidence, convicted the accused, viz., the appellants, and sentenced
them as follows:
Accused Offences under Section Sentence imposed
No.
A1 302 of the IPC To undergo life imprisonment and to pay a fine
of Rs.2000/- in default to undergo RI for one
year.
201 of the IPC To undergo RI for 10 years and to pay a fine of
Rs.1000/- in default to undergo RI for one year.
The sentences imposed were directed to run concurrently.
Accused Offences under Section Sentence imposed
No.
A2 201 of the IPC To undergo RI for 10 years and to pay a fine of
Rs.1000/- in default to undergo RI for one year.
Hence, the accused/appellants have preferred the appeal challenging the above
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conviction and sentence.
3. Heard Mr.S.Mohamed Ansar, the learned counsel for the appellants,
and Mr.A.Gokulakrishnan, the learned Additional Public Prosecutor for the
respondent/State.
4. The learned counsel for the appellants submitted that the case, which is
based on circumstantial evidence has not been fully established by the
prosecution; that the extra judicial confession said to have been given by the first
appellant cannot be relied upon as there was no reason for the first appellant to
give a confession to a stranger; that no incriminating articles were seized from
the appellants; and that the evidence of last seen cannot be believed and prayed
for acquittal of the appellants.
5. Mr.A.Gokulakrishnan, the learned Additional Public Prosecutor, per
contra, submitted that the prosecution has proved the circumstances of motive,
last seen together and the conduct of the accused, which would offer an
additional link in the chain of circumstances to prove the guilt of the appellants,
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and hence, he prayed for dismissal of the appeal. The learned Additional Public
Prosecutor also brought to our notice that the second appellant was released on
28.01.2023 prematurely on occasion of the 75th anniversary of India's
Independence Day celebrations as per G.O (2D) No.64, Home, (Prison – IV)
Department dated 26.01.2023.
6. We have carefully considered the rival submissions on either side and
perused the evidence on record.
7. As stated earlier, the prosecution had examined 14 witnesses to prove
its case. P.W.1 is a Village Administrative Officer who lodged the complaint and
before whom the first appellant appeared and gave an extra judicial confession
who thereafter produced the accused before the Investigating Officer. P.W.2 is
the brother-in-law of the first appellant, who speaks about the confession said to
have been made by the first appellant/A1 and about the foul smell that emanated
from the house of the first appellant and his informing P.W.1 about the same.
P.W.3 is the witness to the Observation Mahazar and Rough Sketch. P.W.4 is
the father of the deceased, who came to know of the occurrence and is an
hearsay witness. P.W.5 and P.W.6 speak about the circumstances of the
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appellants bringing construction materials such as hollow blocks, cement sand,
etc., into the house. P.W.7 sold five kilograms of cement to the accused. P.W.8
who was working as a sanitary worker in Dalavaipattinam Panchayat speaks
about his exhuming the body of the deceased, which was buried in the first
appellant's house. P.W.9 is a photographer who marked Ex.P4, CDs containing
the photographs. P.W.10 is a doctor who conducted the post-mortem
of the deceased and had issued a post-mortem certificate [Ex.P11] and a final
opinion [Ex.P13]. He had also marked the chemical analysis report [Ex.P12].
P.W.11 is a forensic science expert who issued Ex.P16 - report. P.W.12, who
was working as a Special Tahsildar, at the relevant point in time, conducted an
inquest and gave the inquest report [Ex.P17]. P.W.13 is the Special Sub-
Inspector who registered the FIR under Section 174 of the Cr.P.C., on
information given by P.W.1. P.W.14 is the Investigating Officer, who filed the
final report.
8. The case rests on circumstantial evidence. The primary circumstance
relied upon by the prosecution is the extra judicial confession said to have been
given by the first appellant to P.W.1. Admittedly, P.W.1 is a total stranger to the
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appellants. P.W.1 had lodged a complaint and had assisted the investigation
since 24.02.2015. It is the case of the prosecution that on 27.02.2015, the first
appellant appeared before him and gave an extra judicial confession. Considering
the fact that P.W.1 is a total stranger to the first appellant and he had already
participated in the investigation from 24.02.2015, we are of the view that the
extra judicial confession given by the first appellant on 27.02.2015 to P.W.1 is
doubtful. Therefore, we are not inclined to rely upon P.W.1 on this aspect.
9. It is the prosecution case that P.W.2/brother-in-law of the first appellant
went to the Village Administrative Officer [P.W.1] on 23.02.2015 at about 5.00
p.m., and stated that a foul smell emanated from the house of the first appellant
and that the sister of the first appellant, namely Murugeswari, informed him that
the first appellant confessed about the crime and about concealing the body in
the house of the first appellant. Though the first appellant did not directly
confess to P.W.2, the fact that the Murugeswari (A1's sister) told P.W.2 about
what she heard and P.W.2 in-turn gave a representation to P.W.1 is corroborated
by P.W.1 and the complaint [Ex.P1]. In our view, this would be a circumstance
against the accused.
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10. P.W.5 is the neighbour of the appellants who speaks about a quarrel
between the appellants and the deceased at 9.30 p.m., on 18.02.2015 and that on
the next day, he saw the appellants carrying hollow block stones into the house
and thereafter, after the arrest, he came to know that the appellants used hollow
blocks for building a tomb. P.W.6 is another important witness who speaks
about witnessing the quarrel between the appellants and the deceased at 9.30
p.m., on 18.02.2015. He further saw the appellants taking sand, which was
stored in front of the house, into their house on 22.02.2015 at about 8.30 a.m.
We find that, apart from making a few suggestions, there is nothing in the cross
examination of these two witnesses to discredit their version. Thus, in our view,
the prosecution has established the circumstance of the accused taking
construction materials such as hollow blocks and sand into the house of the
appellants. P.W.7 is running a store and speaks to the fact that he sold five
kilograms of cement to the first appellant.
11. The fact that the body was buried in the house of the appellant is
confirmed by the evidence of P.W.8 who was working as a sanitary worker and
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had broken the hollow block structure and taken the body of the deceased from
the house of the appellants. P.W.1 and P.W.2 also confirmed the fact that the
body was taken from the house of the appellants, besides the evidence of the
post-mortem doctor who conducted the post-mortem at the appellants' house.
The appellants have not come up with any plausible explanation as to how the
body was found in the house. The post-mortem doctor, P.W.10 in his report
[Ex.P11] found the following injuries on the deceased.
“A transversely faint ligature pressure abrasion mark measuring
20x3 to 4 cm noted on upper most part of the neck.”
He had opined that the death was due to “violent compression of the neck
associated with head injury.” Thus, the prosecution has established that the
deceased suffered a homicidal death.
12. The facts narrated above would show that the prosecution had
established its case by circumstantial evidence. The circumstances being:
(a) Quarrel between the appellants and the deceased on the
night of 18.02.2015.
(b) The appellants were taking construction materials inside the
house on 19.02.2015 and thereafter.
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(c) The appellants confessed about the crime to the first
appellant's sister, namely Murugeswari, who in turn informed P.W.2.
Though this cannot be treated as an extra judicial confession to P.W.2,
the fact that Murugeswari told P.W.2 about the confession and P.W.2
in turn informed the Village Administrative Officer/P.W.1 that the
body was exhumed on such information would be a circumstance
against the appellants.
(d) The recovery of the concealed dead body of the deceased
from the house of the appellants is another strong circumstance. The
circumstances that have been established, according to us, unerringly
point out only the guilt of the appellants.
13. However, the exact manner in which the murder took place cannot be
established by the prosecution, as there were no eye witnesses. It is the admitted
case for the Investigating Officer that both appellants had injuries at the time of
arrest. It is P.W.14's version that injuries were sustained due to the scuffle
between them and the deceased. The relevant observation made by the
Investigating Officer reads as follows:
“nkw;go 2 vjphpfSk; ,we;J nghd btz;zpyht[ld;
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Vw;gl;l iffyg;gpd; nghJ nkw;go vjphp fnzrDf;Fk; vjphp
nghJk; bgz;Ztpw;Fk; Vw;gl;l fha';fSf;F kUj;Jt rpfpr;ir
mspf;f kUj;Jt eK:dh 136. 137d; go muR kUj;Jtkidapy;
fhz;gpf;f ntz;o eK:dh bfhLj;J nkw;fz;l vjphpfis
ePjpkd;wj;jpy; xg;gilf;f milg;g[f;fhty; mwpf;ifa[ld; ePjpkd;wf;
fhtYf;F mDg;gp itj;njd;/”
14 (i) When we wanted to examine if there were any circumstances in the
confession to bring the conduct of the accused, within any of the exceptions by
relying upon our judgment in Selvam v. State, reported in 2024 SCC Online
(Mad) 1804, we came to understand that in the said judgment, we had not
noticed certain decisions of this Court. Therefore, considering the importance of
the issue involved in the case, we appointed Mr.N.R.Elango, learned Senior
Counsel and Mr.Sharath Chandran as Amici Curiae to assist us in this matter.
(ii). Mr.N.R.Elango, learned Senior Counsel and Mr.Sharath Chandran,
learned counsel made submissions, for and against the use of confession,
recorded during the course of the investigation to be used in favour of the
accused.
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(iii) (a) Mr.N.R.Elango, learned Senior Counsel submitted that there
cannot be any distinction between a confessional FIR and a confession given
during the course of the investigation. The bar under Section 162 of the Cr.P.C.,
would not bar the use of confession in favour of the accused, as the Indian
Evidence Act, is a special law and by virtue of Section 5 of Code of Criminal
Procedure, 1973 which is equivalent to 1(2) of Code of Criminal Procedure,
1898, the provisions of Cr.P.C., would not affect any special or local law, which
includes the Indian Evidence Act.
(b) The learned Senior Counsel submitted that the language of Section 25
of the Indian Evidence Act, is very clear and that it only states that a confession
cannot be used against an accused person, thereby suggesting that it could be
used in favour of the accused.
(c) The learned Senior Counsel also pointed out to the provisions of the
Code of Criminal Procedure, 1861, and also to the judgments of the Hon'ble
Supreme Court in Aghnoo Nagesia's case [Aghnoo Nagesia v. State of Bihar,
reported in (1965 SCC OnLine SC 109] in support of the submission that these
provisions are intended to protect the accused and cannot be used against the
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accused.
(d) Mr.N.R.Elango, further relied upon the judgment in Manoj v. State of
M.P., reported in (2023) 2 SCC 323, wherein the Hon'ble Supreme Court had
held that the prosecution cannot withhold any material collected during
investigation and the Courts can look into such records for the purpose of
arriving at the truth. Therefore, the learned Senior Counsel submitted that
pursuant to the judgment of the Hon'ble Supreme Court in Manoj's case [cited
supra], any material collected during the course of the investigation, can be
called for by the Court and used in favour of the accused and no objection can be
taken on the ground that it is inadmissible under Section 162 of the Cr.P.C., and
it is not a relied upon document by the prosecution.
(e) The learned Senior Counsel submitted that in certain cases, the
accused has a burden to explain the circumstances bringing his case within the
general exception or within any special exception and he, therefore, can rely
upon his confession to establish the existence of those circumstances bringing his
case within any of the exceptions.
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(iv) (a) Mr.Sharath Chandran, learned counsel submitted that Section 162
of the Cr.P.C., refers to a statement given during the course of the investigation
and it is a bar of admissibility and therefore, such a bar to use the statement for
any purpose, cannot be lifted even for the limited purpose of using it in favour of
the accused. The learned counsel relied upon the judgment of this Court in
Re.Shiek Kalesha's case, reported in 1931 LW 388 in support of the
submission that the statement under Section 162 of the Cr.P.C., of any person,
including an accused, cannot be used except for the limited purpose indicated in
the proviso and the statement is otherwise statutorily worthless.
(b) The learned counsel further submitted that the view in Re.Shiek
Kalesha's case was affirmed by the Full Bench of this Court in Re.Syamo Maha
Patro and another, reported in 1932 LV ILR 903. This view of the Full Bench
was further tested before the Privy Council in Pakala Narayana Swami vs. The
King-Emperor, reported in 1939 (1) MLJ 59 and the Privy Council approved
the decision of the Full Bench and held that Section 162 of the Cr.P.C., is wide
enough to include a statement of the accused. The learned counsel further
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submitted that if the statement is shut out by Section 162, the question of
applying Section 25 does not arise.
(c) The learned counsel further submitted that the learned Judges who
decided Mottai Thevan's case had passed another judgment in Vokkaligara
Yengtappa v State, reported in 1952 MWN Cr. 286, wherein Their Lordships
held that the statement given in the course of investigation was hit by Section
162 of the Cr.P.C., and the accused cannot make use of it even if it is favourable
to him.
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(d) The learned counsel also relied upon the Constitutional Bench
judgment in Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012 :
1959 Supp (2) SCR 875, wherein the Hon'ble Supreme Court had laid down
certain propositions with regard to the use of statements made during
investigation and as to whether the statement referred to in Section 162 of the
Cr.P.C., would only include a statement in writing.
(e) The learned counsel further submitted that in Faddi v. State of
Madhya Pradesh, [AIR 1964 SC 1850] the Hon'ble Supreme Court had
elaborated the meaning of the expression 'course of investigation' which was
confirmed by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel
v. State of Gujarat and Another, reported in (2019) 16 SC 547.
(f) The learned counsel also submitted that in State of Kerala v. Babu
reported in (1999) 4 SCC 621 and in Mahabir Singh v. State of Haryana,
reported in (2001) 7 SCC 148, it was held that the use of case diary by the
Court cannot be used to lift the statements recorded under Section 162 Cr.P.C.,
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and convert them to legal evidence.
(g) The Learned counsel further submitted that the decision of this Court
in Sudalai Mani v. State, reported in (2014) 3 MLJ (Cri) 385, wherein this
Court had held that there has to be a distinction between the confessional FIR
and confession given during the course of investigation, was challenged before
the Hon'ble Supreme Court in SLP (Crl.) Diary No.30988 of 2021 and the same
was dismissed on 04.03.2022 and that the judgment of this Court in Sudalai
Mani's case was followed by subsequent Division Benches in cases reported in
Sathiyaraj vs. State rep. by the Inspector of Police, reported in 2019 (2) MWN
(Cri) 121 (DB) and State rep. by the Deputy Superintendent of Police Vs.
Kamaraj & Elangovan, reported in 2017 SCC OnLine (Mad) 33010.
(h) The learned counsel finally submitted that under Criminal Rules of
Practice, 2019, the confession cannot be marked in entirety and only the
admissible portion has to be extracted or marked and therefore, the Courts
cannot look into any material that is not part of the record.
(v). We have carefully considered the submissions and have perused and
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gone through the judgments cited by both the learned Amici Curiae.
(vi). We place on record our appreciation for the tremendous efforts taken
by both Mr.N.R.Elango, learned Senior Counsel and Mr.Sharath Chandran,
learned counsel, in placing all the points of view and also the judgments on the
issue over a period of 100 years. Both of them had meticulously prepared and
presented the legal position to enable us, to decide the legal issue involved in this
case.
(vii). In Selvam's case [cited supra], we had considered this very issue
and made the following observations.
“14. (i) Before we examine that aspect, we would like to deal with the
objection raised by the learned Additional Public Prosecutor that the confession
cannot be used in favour of the accused in view of the judgment of this Court in
Sudalaimani's case [cited supra].
(ii) It is seen that even after the decision in Sudalaimani's case [cited supra],
some of the Division Benches had followed the ratio laid down in Mottai Thevan's
case [cited supra], by using the statements in the confession of the accused made
during investigation. In Sarath @ Sarath Kumar v. State [Crl.A.No.342 of 2017
decided on 17.09.2018], the Division Bench of this Court had held as follows:
“8. We however are of the view that punishment u/s.302 IPC is not
proper. The evidence on record indicates a drunken brawl between the accused
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and the deceased, the occurrence proper having taken place on the spur of the
moment and without premeditation. This view finds support in the confession of
the accused which the decision of this Court in Mottai Thevar vs. State, AIR
1952 Madras 586, informs can well be looked into.”
(iii) There are a few other cases as well wherein confession made during
investigation was used in favour of the accused. There are other judgments that
have not used the confession in favour of the accused by following the judgment in
Sudalaimani's case [cited supra]. In view of the different views taken by different
benches after the judgment of this Court in Sudalaimani's case, we propose to
examine as to which view has to be followed.
(iv). In Sudalaimani's case [cited supra], this Court as stated earlier made a
distinction between confessional FIR and confession given during custody and it
held that confessional FIR which is given before the investigation, is not barred by
Section 162 of the Cr.P.C., and therefore can be used in favour of the accused; and
that the confession during custody would be hit by the said provision and cannot be
used for any purpose except as provided under Section 162(2) of the Cr.P.C. The
relevant portion of the judgment of this Court reads as follows:
“27. We are aware that if a Division Bench dissents with the view of a
Co-ordinate Division Bench, then the matter should be referred to a Full Bench
for resolution. In this case, all the Division Benches have given the benefit of a
Police confession obtained during the course of investigation to the Accused
relying upon either Mottai Thevar's case [AIR 1952 Mad 586] or Aghnoo
Nagesia's case [AIR 1966 SC 119]. We are not disagreeing with the proposition
of law laid down in Mottai Thevar's case or Aghnoo Nagesia's case. We are
simply following them after noting that in the said two cases the Accused
surrendered to the Police immediately after committing the offence and gave a
Confession Statement. This singular aspect makes an ocean of difference while
determining the legal position which was inadvertently lost sight of by the
subsequent Division Benches in the thicket of their noble and laudable objective
to grant benefits to the Accused. With great respect to them, in our humble
opinion, these Judgments are per incuriam.”
(v). As could be seen from the above observations, the Division Bench held
that all the other judgments that followed the view taken by a Division Bench of this
Court in Mottai Thevan's case and did not make the distinction between the
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confessional FIR and the confession given during investigation, were per incuriam.
(vi). In Mottai Thevan's case [cited supra], this Court held that Section 25
of the Indian Evidence Act is no bar to the user of a confession in favour of an
accused person. Both the learned judges of the Division Bench concurred on the
final opinion. Hon'ble Mr.Justice Mack had held as follows:
“...We have no doubt at all that the appellant, after spearing deceased at
the shandy, went straight to the police station with the blood-stained spear and
there made a clean breast of the offence and that this was the first information
received in the case. Even assuming that he was caught by a constable going off
with the blood-stained spear and taken to the police station, the statement he
made there should certainly be considered in his favour. It is obvious that the
learned Sessions Judge did not peruse the case diary as he was entitled to do
under Section 172 (2), Cr. P. C. The result of our perusal of the confession
recorded from him at the police station is that not only do we find mitigating
circumstances to justify the imposition of the lesser punishment but we also feel
justified in making a recommendation to the Government for commutation of the
sentence.”
(vii). Hon'ble Mr.Justice Somasundaram, was pleased to observe as follows:
“.... 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 there 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. The section
therefore ought not to be repealed or modified for the sake of the few or the
exceptions.”
(viii). In Mottai Thevan's case, the prosecution case was that the accused,
after committing the crime, came to the police station with a bloodstained spear and
gave a statement that was registered as an FIR. The accused therein took an
extreme plea, saying that the police were bribed to foist a case against him and some
policemen asked him to pick up the weapon that was lying near the deceased and
took him to the police station and beat him.
(ix). In the light of the above facts, Hon'ble Mr.Justice Mack observed that
on facts, the Bench was convinced that the accused went to the police station on his
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own to give the confession. The next observation is important. The learned Judge
observed that even assuming that he was caught by a Constable and taken to a
police station, the statement made by him should be considered in his favour. If the
Hon'ble Judges wanted to make a distinction between confessional FIR and
confession made after the commencement of investigation, there was no necessity
for them to state that even assuming that the accused was caught by a Constable and
taken to the police station, the confession can be used in his favour. Therefore, to
start with, we are of the view that Mottai Thevan's case [cited supra], cannot be a
precedent for the proposition that confessional FIR alone can be used in favour of
the accused. In Mottai Thevan's case [cited supra], no distinction was sought to be
made between confessional FIR and the confession given during investigation.
(x). Be that as it may, the language of Section 25 of the Indian Evidence
Act, is very clear and it says no confession to a police officer can be proved 'against'
a person accused of any offence. The corollary to such a provision would be that
the confession can be used in favour of the accused. However, the Division Bench
in Sudalaimani's case [cited supra] held that a confession given to the police
officer during investigation would amount to a statement under Section 162 Cr.P.C.,
relying upon the judgment of the Hon'ble Supreme Court in Aghnoo Nagesia v.
State of Bihar, reported in AIR 1966 SC 119 and therefore, it cannot be put to any
use during trial except for the purposes mentioned in Section 162(2) of the Cr.P.C,
which reads as follows:
“Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of section 32 of the Indian
Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of
that Act.”
Therefore in Sudalaimani's case [cited supra], this Court held that there has to be a
distinction between the confession given before investigation and one given during
the course of investigation.
(xi). Firstly in our humble view, this distinction is theoretical in the light of
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the observations of the Hon'ble Supreme Court in State of Uttar Pradesh v.
Deoman Upadhyaya, reported in AIR 1960 SC 1125, which was not brought to
the notice of the Division Bench of this Court, which decided Sudalaimani's case
[cited supra]
(xii). In Deoman Upadhyaya's case [cited supra] a very interesting question
arose. The Allahabad High Court, had struck down Section 27 of the Indian
Evidence Act, as unconstitutional, by holding that since Section 27 of the Indian
Evidence Act refers to a confession given during the custody of a police officer, a
confessional FIR (when the accused is not in custody) even if it leads to the
discovery of fact, cannot be proved in terms of Section 27 of the Indian Evidence
Act and hence, Section 27 of the Indian Evidence Act, is discriminatory and
violative of Article 14 of the Constitution of India. This was challenged by the State
of Uttar Pradesh before the Hon'ble Supreme Court and a larger Bench of the
Hon'ble Supreme Court by a 4:1 majority held that Section 27 of the Indian
Evidence Act is not unconstitutional.
(xiii). Primarily, in the judgment of the majority view authored by Hon'ble
Mr.Justice J.C.Shah, it was held that a person directly giving information to the
police officer confessing about the crime, is deemed to have submitted himself to
custody. The Hon'ble Supreme Court also observed that in some cases very rarely,
the accused may not submit himself to custody and still give an information by other
means such as writing a letter etc. But when he appears in person before the police
officer and makes a confession, he is deemed to be in police custody. The relevant
observations of the Hon'ble Supreme Court are as follows:
“12. There is nothing in the Evidence Act which precludes proof of
information given by a person not in custody, which relates to the facts thereby
discovered; it is by virtue of the ban imposed by s. 162 of the Code of Criminal
Procedure, that a statement made to a police officer in the course of the
investigation of an offence under Ch. XIV by a person not in police custody at
the time it was made even if it leads to the discovery of a fact is not provable
against him at the trial for that offence. But the distinction which it may be
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remembered does not proceed on the same lines as under the. Evidence Act,
arising in the matter of admissibility of such statements made to the police
officer in the course of an investigation between persons in custody and persons
not in custody, has little practical significance. When a person not in custody
approaches a police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a bearing on the charge
which may be made against him he may appropriately be deemed to have
surrendered himself to the police. Section 46 of the Code of Criminal Procedure
does not contemplate any formality before a person can be said to be taken in
custody: submission to the custody by word or action by a person in sufficient.
A person directly giving to a police officer by word of mouth information which
may be used as evidence against him, may be deemed to have submitted himself
to the custody " of the police officer within the meaning of s. 27 of the Indian
Evidence Act: Legal Remembrancer v. Lalit Mohan 'Singh ((1921) ILR (49) Cal
167), Santokhi Beldar v. King Emperor ((1933) ILR (12) Patna 241).
Exceptional cases may certainly be imagined in which a person may give
information without presenting himself before a police officer who is
investigating an offence. For instance, he may write a letter and give such
information or may send a telephonic or other message to the police officer. But
in considering whether a statute is unconstitutional on the ground that the law
has given equal treatment to all persons similarly circumstanced, it must be
remembered that the legislature has to deal with practical problems; the question
is not to be judged by merely enumerating other theoretically possible situations
to which the statute might have been but is not applied. As has often been said
in considering whether there has been a denial of the equal protection of the
laws, a doctrinaire approach is to be avoided. A person who has committed an
offence, but who is not in custody, normally would not without surrendering
himself to the police give information voluntarily to a police officer
investigating the commission of that offence leading to the discovery of material
evidence supporting a charge against him for the commission of the offence. The
Parliament enacts laws to deal with practical problems which are likely to arise
in the affairs of men. Theoretical possibility of an offender not in custody
because the police officer investigating the offence has not been able to get at
any evidence against him giving information to the police officer without
surrendering himself to the police, which may lead to the discovery of an
important fact by the police, cannot be ruled out; but such an occurrence would
indeed be rare. Our attention has not been invited to any case in which it was
even alleged that information leading to the discovery of a fact which may be
used in evidence against a person was given by him to a police officer in the
course of investigation without such person having surrendered himself Cases
like Deonandan Dasadh v. King Emperor ((1928) I.L.R. 7 Pat. 411), Santokhi
Beldar v. King Emperor ((1933) I.L.R. 12 Pat. 241), Durlav Namasudra v.
Emperor ((1932) I.L.R. 59 Cal. 1040), In re Mottai Thevar (A.I.R. 1952 Mad.
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586), In re Peria Guruswami (I.L.R. 1942 Mad. 77), Bharosa Ramdayal v.
Emperor (I.L.R. 1940 Nag. 679) and Jalla v. Emperor (A.I.R. 1931 Lah. 278)
and others to which our attention was invited are all cases in which the accused
persons who made statements leading to discovery of facts were either in the
actual custody of police officers or had surrendered themselves to the police at
the time of, or before making the statements attributed to them, and do not
illustrate the existence of a real and substantial class of persons not in custody
giving information to police officers in the course of investigation leading to
discovery of facts which may be used as evidence against those persons.”
[emphasis supplied]
(xiv). Thus, when an accused person submits himself to custody, the
investigation is also deemed to have commenced. Therefore, a distinction cannot be
made between a confessional FIR and the confession given after the registration of
the FIR. The premise on which the Division Bench of this Court held that
confession during investigation cannot be used for any purpose is that the
confessional FIR given by the accused precedes the investigation and is not part of
the investigation. We are of the view that unlike other information, which is given
by the victim or by a third party about the offence to the police, the confessional
FIR is deemed to be given during the course of the investigation, as the accused
submits himself to custody.
(xv). Ofcourse, where an information is given by any victim / witness, then
the information has to be recorded before commencing an investigation. This has
been clarified by the Hon'ble Supreme Court in Lalita Kumari v. State of Uttar
Pradesh and others, reported in AIR 2014 SC 187. However, an information by a
victim/witness, is always not necessary for commencing an investigation, as could be
seen from the words employed in Section 157 of the Cr.P.C., which says that a
police officer on 'information received or otherwise'. These words were interpreted
by the Hon'ble Supreme Court in State of Uttar Pradesh v Bhagwant Kishore
Joshi, reported in AIR 1964 SC 221, wherein it is held that the words 'otherwise'
indicate that information is not a condition precedent for investigation. The relevant
observations are as follows:
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“8. The first question is whether the enquiry made by him before he
obtained the permission of the Magistrate was ‘investigation’ within the
meaning of the provisions of the Code of Criminal Procedure. Section 154 of
the Code prescribes the mode of recording the information received orally or in
writing by an officer in charge of a police station in respect of the commission
of a cognizable offence. Section 156 thereof authorizes such an officer to
investigate any cognizable offence prescribed therein. Though ordinarily
investigation is undertaken on information received by a police officer, the
receipt of information is not a condition precedent for investigation. Section 157
which prescribes the procedure in the matter of such an investigation can be
initiated either on information or otherwise. It is clear from the said provisions
that an officer in charge of a police station can start investigation either on
information or otherwise. Under Section 4(1) of the Code of Criminal
Procedure, “Investigation” includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person (other than
a Magistrate) who is authorized by a Magistrate in this behalf”.
[emphasis supplied]
Therefore, the moment the police officer records the confession of the accused,
who submits himself to the custody of the police, the police officer starts collecting
the evidence and the investigation is deemed to have commenced, as otherwise even
if a fact is discovered pursuant to such confession, it cannot be proved in terms of
Section 27 of the Indian Evidence Act. Therefore, the distinction sought to be made
by referring to Section 162 of the Cr.P.C., may not be in accordance with the
aforesaid judgments of the Hon'ble Supreme Court.
(xvi). Section 162 Cr.P.C., therefore cannot be a bar for use of confession
made by an accused in his favour whether it was given before the registration of the
FIR or after its registration. As stated earlier, in Mottai Thevan's case, no such
distinction was made.
(xvii). Let us assume a case, where the accused attacks 'A' and 'B' in a house.
'A' dies and 'B' survives. Let us say that it is 'B's version that the accused attacked
both 'A' and 'B' in a premeditated manner and the version of the accused is that he
committed the act due to grave and sudden provocation given by 'A'. 'B' and the
accused decide to go to the police station to give information. If 'B' goes five
minutes before the accused to the police station, and an FIR is lodged on his
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information, the confession of the accused, even if it has any mitigating
circumstances, cannot be used in favour of the accused. However, if the accused
goes to the police station one minute before 'B' and makes a confessional FIR then
his confession can be used in his favour. The Division Bench in Mottai Thevan's
case [cited supra] never intended to make such a distinction. Of course, whether the
confession of the accused in his favour or the version of 'B' relating to the
occurrence has to be accepted, is a question of fact.
(xviii). That apart, an accused who is arrested after the registration of the
FIR, is unlikely to make any exculpatory statement in his confession as he would be
under the influence of the police. Whereas an accused who gives a confessional
FIR, is likely to make statements, which would mitigate the rigour of the offence.
Therefore, to give the benefit only to such an accused by making a distinction, is not
only contrary to the judgment of the Division Bench in Mottai Thevan's case [cited
supra], but also to the provisions of the Indian Evidence Act and Cr.P.C., which are
intended to protect the accused.
(xix) In fact, Section 172(2) of the Cr.P.C., empowers the criminal Court to
send for the police diaries of the case under enquiry or trial and may use such diaries
not as an evidence but, to aid any such enquiry or trial. In Mukund Lal v. Union of
India and others, reported in 1989 Supp (1) SCC 622, the Hon'ble Supreme Court
held that a Court has power to make use of the entries in the police diaries to the
advantage of the accused. The relevant portion reads as follows:
“4. The public interest requirement from the stand point of the need to
ensure a fair trial for an accused is more than sufficiently met by the power
conferred on the court, which is the ultimate custodian of the interest of justice
and can always be trusted to be vigilant to ensure that the interest of accused
persons standing the trial, is fully safeguarded. This is a factor which must be
accorded its due weight. There would be no prejudice or failure of justice to the
accused person since the court can be trusted to look into the police diary for
the purpose of protecting his interest...”
It is needless to mention that the case diary would also contain the statements of
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witnesses recorded under Section 161 of the Cr.P.C.
(xx) It is relevant to point out here that Section 3 of the Indian Evidence Act,
which defines the word 'proved', does not employ the word 'evidence'. It states that
after considering the matters before it, the Court can either believe that a fact exists,
or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. In our
view, the confession of the accused 'in his favour' is certainly a matter before the
Court for it to look into while considering the nature of the offence committed by an
accused. That apart, it is well settled that while dealing with criminal statutes, if
there is any ambiguity, it must be interpreted in favour of the accused, taking into
consideration the practical effect of a statute. The Court cannot be hyper-technical.
In the case of Union of India and Others Vs. Priyankan Sharan and Another
reported in (2008) 9 SCC 15, the Hon'ble Supreme Court had held that the
intention of the Legislature is primarily to be gathered from the language used,
which means that attention should be paid to what has been said as also to what has
not been said. Likewise, in the case of R.L.Arora Vs. State of Uttar Pradesh and
Others reported in AIR 1964 SC 1230, the Hon'ble Supreme Court had dealt with
the manner in which the provision in statute is required to be interpreted and held in
the following manner:-
“Further, a literal interpretation is not always the only interpretation of a
provision in a statute and the court has to look at the setting in which the words
are used and the circumstances in which the law came to be passed to decide
whether there is something implicit behind the words actually used which would
control the literal meaning, of the words used in a provision of the statute. It is
permissible to control the wide language used in a statute if that is possible by
the setting in which the words are used and the intention of the law-making
body which may be apparent from the circumstances in which the particular
provision came to be made. Therefore, a literal and mechanical interpretation is
not the only interpretation which courts are bound to give to the words of a
statute; and it may be possible to control the wide 'language in which a provision
is made by taking into account what is implicit in it in view of the setting in
which the provision appears and the circumstances in which it might have been
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enacted.”
(xxi). Therefore, we are of the view that the ratio in Mottai Thevan's case
and the judgments that followed the ratio in Mottai Thevan's case [cited supra],
irrespective of whether it is a confessional FIR or a confession given after
registration of FIR and used the confession of the accused in his favour, are binding
on us. Since those judgments are binding on us, we see no reason to refer this
issue to a larger Bench. In this regard, it would be useful to refer to the
observations made by the Constitutional Bench of the Hon'ble Supreme Court in
National Insurance Company Limited v. Pranay Sethi and others, reported in
(2017) 16 SCC 680, which are as follows:
“27. We are compelled to state here that in Munna Lal Jain v. Vipin
Kumar Sharma ((2015) 6 SCC 347), the three-Judge Bench should have been
guided by the principle stated in Reshma Kumari v. Madan Mohan ((2013) 9
SCC 54) which has concurred with the view expressed in Sarla Devi v. Delhi
Transport Corporation ((2009) 6 SCC 121) or in case of disagreement, it should
have been well advised to refer the case to a larger Bench. We say so, as we have
already expressed the opinion that the dicta laid down in Reshma Kumari
[supra] being earlier in point of time would be a binding precedent and not the
decision in Rajesh v. Rajbir Singh ((2013) 9 SCC 54).
28. In this context, we may also refer to Sundeep Kumar Bafna v. State
of Maharashtra and another ((2014) 16 SCC 623) which correctly lays down the
principle that discipline demanded by a precedent or the disqualification or
diminution of a decision on the application of the per incuriam rule is of great
importance, since without it, certainty of law, consistency of rulings and comity
of courts would become a costly casualty. A decision or judgment can be per
incuriam any provision in a statute, rule or regulation, which was not brought to
the notice of the court. A decision or judgment can also be per incuriam if it is
not possible to reconcile its ratio with that of a previously pronounced judgment
of a co- equal or larger Bench. There can be no scintilla of doubt that an earlier
decision of co-equal Bench binds the Bench of same strength. Though the
judgment in Rajesh’s case was delivered on a later date, it had not apprised itself
of the law stated in Reshma Kumari (supra) but had been guided by Santosh
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Devi v. National Insurance Co. Ltd., ((2012) 6 SCC 421. We have no hesitation
that it is not a binding precedent on the co-equal Bench.”
(xxii). In the light of the above observations, we are of the view that the
confession of the accused at whatever stage it is made, as long as it is either
consistent with the other evidence on record or is not contrary to the other evidence
on record, if found in favour of the accused, can be used as a mitigating factor to
hold him guilty of a lesser offence.
(viii). In the above judgment, we have held that Section 162 of the Cr.P.C.,
would not be a bar for use of confession in favour of the accused, even if it is
during the course of investigation and no such distinction was ever contemplated
in any of the judgments before Sudalaimani's case.
(ix). However, from the submissions made by the learned Amici Curiae,
we find that we had not noticed certain other judgments on this aspect. We may
now examine, those judgments to see if the view taken earlier, has to be changed.
(x). The first Code of Criminal Procedure was enacted in the year 1861.
Some of the provisions in the said Code were incorporated in the Indian Evidence
Act, which was enacted later in the year 1872. Sections 148 to 150 of the 1861
Code were equivalent to Sections 25 to 27 of Indian Evidence Act, 1872. Section
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145 of the 1861 Code was equivalent to Section 161 of the Code. Section 150 of
Cr.P.C. 1861 deals with discovery of a fact pursuant to information received
from a person accused of an offence. The second Code was enacted in the year
1882. This Code had thus removed the provisions relating to confession, which
were incorporated in the Indian Evidence Act. Section 162 of the 1882 Code
reads as follows:
“162. Statements to Police not to be signed or admitted in evidence:- No
Statement, other than a dying declaration, made by any person to a Police-Officer in
the course of an investigation under this Chapter shall if reduced to writing, be
signed by the person making it, or shall (Act X of 1886, section 6) be used as
evidence against the accused.
Nothing in this section shall be deemed to affect the provisions of section 27
of the Indian Evidence Act, 1872.”
(xi). In the 1898 Code, however, for some reasons, the proviso relating to
Section 27 of the Indian Evidence Act, was removed and Section 162 read as
follows:
“162. Statements to police not to be signed; use of such statements in evidence:
(1) No statement made by any person to a police-officer in the course of an
investigation under this Chapter shall, if taken down in writing, be signed by the
person making it, nor shall such writing be used as evidence:
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Provided that, when any witness is called for the prosecution whose
statement has been taken down in writing as aforesaid, the Court shall, on the
request of the accused, refer to such writing and may then, if the Court thinks it
expedient in the interests of justice, direct that the accused be furnished with a copy
thereof: and such statement may be used to impeach the credit of such witness in
manner provided by the Indian Evidence Act, 1872.
(2) Nothing in this section shall be deemed to apply to any statement falling
within the provisions of section 32, clause (1), of the Indian Evidence Act, 1872.”
(xii). However, the said bar under Section 162 Cr.P.C., was not applicable
to a statement falling under Section 32(2) of the Indian Evidence Act. The
proviso relating to the applicability of Section 27 of the Indian Evidence Act, to a
statement falling under Section 162 Cr.P.C., was incorporated only in the year
1941 by the Code of Criminal Procedure (Second Amendment) Act, 1941. The
said amendment reads as follows:
“2. Amendment of Section 162. Act V of 1898.-- In sub-section (2) of section 162
of the Code of Criminal Procedure, 1898 (V of 1898), after the figures “1872” the
following words and figures shall be added, namely:-
“or to affect the provisions of section 27 of the Act”.”
Therefore, before 1941, the question as to whether Section 162 of Cr.P.C.,
applies to statements of accused persons was engaging the attention of the
Courts.
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(xiii). In Re.Shiek Kalesha's case, reported in 1931 LW 388: 1931 SCC
Online Mad 91, the Division Bench of this Court held that the bar under Section
162 of the Cr.P.C., is applicable even to a statement given by the accused. It is
pertinent to point out here that in the said judgment, the Division Bench was not
dealing with a confession statement. In that case, the accused took the police
where the jewels were hidden. At the time of the discovery of jewels, he made a
statement to certain neighbours marked as Ex.K. When the defence sought to
use the said statement, as it aided the accused, the Court held that Section 162
would be a bar. The Court further held that the words, “any purpose” in
Section 161 must include the purpose of prosecution or defence and any person
would include an accused.
(xiv) A Full Bench of this Court in Re.Syamo Maha Patro's case also
held that Section 162 includes statements made by a person accused of an
offence. Justice Anantakrishna Ayyar, a member of the Bench, held that if the
statements of a, accused to the police are totally shut out, it is possible that
some parts in favour of the accused may also be shut out, but, it is for the
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legislature to resolve those issues and not for the Court to do so, when the
language of the Act, is clear. Here again, the Full Bench did not specifically deal
with the confessional statement of an accused. The Court also held that though
the proviso relating to applicability of Section 27 was removed, Section 27
remains unaffected and cannot be taken to have been impliedly abrogated by
Section 162 of the Code.
(xv) This decision of the Full Bench was considered by the Privy Council
in Pakala Narayana Swami's case [cited supra]. The primary question decided
in the said case was as to when an admission would amount to a confession.
Their Lordships did not go into the question as to whether the provisions of
Section 27 of the Indian Evidence Act would override the bar under Section 162
of the Code. The relevant observations are as follows:
“Whether to give to Section 162 the plain meaning of the words is to leave
the statement still inadmissible even though a discovery of fact is made such as is
contemplated by Section 27 it does not seem necessary to decide. In the present case
the declarant was not in the custody of the police, and no alleged discovery was
made in consequence of his statement. The words of Section 162 are in their
Lordships' view plainly wide enough to exclude any confession made to a police-
officer in course of investigation whether a discovery is made or not. They may
therefore pro tanto repeal the provisions of the section which would otherwise
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apply. If they do not, presumably it would be on the ground that Section 27 of the
Indian Evidence Act is a "special law" within the meaning of Section 1(2) of the
Code of Criminal Procedure, and that Section 162 is not a specific provision to the
contrary. Their Lordships express no opinion on this topic for whatever be the right
view it is necessary to give to Section 162 the full meaning indicated. It only remains
to add that any difficulties to which either the prosecution or the defence may be
exposed by the construction now placed on Section 162 can in nearly every case be
avoided by securing that statements and confessions are recorded under Section
164.”
(xvi) However, the question that was troubling the Courts as to whether a
statement under Section 162 Cr.P.C., would include statements made by an
accused, had been clarified by the amendment in the year 1941, by which the
proviso to Section 162 of the Cr.P.C., was added, which states that the
provisions of Section 162 of the Cr.P.C., would not affect the provisions of
Section 27 of the Indian Evidence Act. By virtue of this proviso, the legislature
made it very clear that the statement made by an accused, including the
confession, would be a statement under Section 162 of the Cr.P.C. There cannot
be any quarrel with the said proposition, as it was further made clear by the
judgment in Aghnoo Nagesia's case [cited supra], wherein the Hon'ble Supreme
Court had held that Section 162 was wide enough to include confessional
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statements made to a police, during the course of the investigation.
(xvii) But the real question is whether the confession of the accused would
form a separate class by itself. This has been answered by the judgment of the
Division Bench of this Court in Mottai Thevan's case and reiterated by the very
same learned Judges in Vokkaligara Yengtappa's case [cited supra].
(xviii) Before we deal with the judgment of the Division Bench of this
Court in Vokkaligara Yengtappa's case, we may note that Section 162 of the
Cr.P.C., takes within its fold the following types of statements.
(a) Statements of the witnesses examined during the investigation.
(b) Statements of the accused that are exculpatory in nature.
(c) Admissions made by the accused to the police during the
investigation.
(d) Confessions of the accused.
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(xix) As regards the first three types of statements, there is no difficulty in
holding that Section 162 of the Cr.P.C., would be a bar to their admissibility. So
far as confessions are concerned, they are covered by the special provisions in
the Indian Evidence Act viz., Section 24 to Section 27 of the Indian Evidence
Act, 1872. Section 25 of the Indian Evidence Act, employs the words 'against
an accused'. In Vokkaligara Yengtappa's case, the Division Bench of this
Court was dealing with an exculpatory statement made by the accused, during
the course of the investigation when a material object was seized from his
possession. In that context, the learned Judges held that such a statement, even if
found in favour of the accused, cannot be used as an explanation for the recovery
made from his possession. The relevant observations read as follows:
“... According to the Inspector, when A-2 produced M.O.4, the
statement she made before the Panchayatdar embodied in the
Pachayatnama Ext.P-6 is that A-1 took it from the right pocket of his
trousers and asked her to keep it to safe custody on the morning of 1st
August 1949. This is a statement made by an accused person to the police
during investigation and is strictly and unfortunately inadmissible in
evidence although it explains the production of property.
.. This statement by A-2 when she produced M.O.4 is of course not
a confession and can in no sense be admissible as information leading to
discovery under S.27 of the Evidence Act.”
[emphasis supplied]
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The above observations would make it amply clear that the learned Judges were
not dealing with the confession of the accused while making the above
observations and were referring to the statement of an accused made under
Section 162 of the Cr.P.C., and held that it cannot be used even in favour of the
accused.
(xx). However, as regards confession, Their Lordships felt that it has to be
treated differently and His Lordship, Somasundaram, J., in his separate and
concurring opinion, which clinches the issue, held as follows:
“I agree with the judgment of my learned brother. So far as
Ss.25 to 27 of the Indian Evidence Act are concerned, I have already
stated in another case, that they only prohibit the use of the
confession against the accused and that there is no prohibition of that
use in favour of the accused. But as regards S.162, Criminal
Procedure Code, it prohibits the use of the statement made by any
person (which includes the statement of the accused) for any purpose.
There is therefore a prohibition to use the statement of the accused in
made in the course of investigation even if it is in favour of the
accused. This section needs to be amended so as to enable the
statements of the accused to be used if they are in their favour,
particularly if they happen to be in explanation of the recovery of
incriminating articles from their possession.”
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(xxi). Therefore, the Hon'ble Judges had reiterated their view taken in
Mottai Thevan's case, as regards confession. The above observations of His
Lordship, Somasundaram, J., would make it clear that a clear distinction was
made between confessions and other statements under Section 162 of the Cr.P.C.
Therefore, even as regards the other statements under Section 162 of the Cr.P.C.,
Their Lordships had suggested that the legislature has to amend the provision, so
as to enable the accused to use the statements in his favour. Their Lordships
reiterated that Section 25 of the Indian Evidence Act, only prohibits the use of
the confession of the accused and there is no prohibition of their use in favour of
the accused. No distinction was made by the Hon'ble Judges with regard to the
confessions made before the commencement of the investigation and during the
course of the investigation.
(xxii) Further, in Selvam's case [cited supra], we had given reasons as to
why we had not referred the issue to a larger Bench. One of the reasons is that
the judgments in Mottai Thevan's case [cited supra] and the other judgments,
are binding on us. For the very same reasons, we are of the view that the issue in
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this case need not be referred to a larger Bench, though there is another
judgment of this Court in Kamaraj's case [cited supra], which affirms the view
taken in Sudalaimani's case.
(xxiii) (a) We may also note here that confession of the accused during
investigation, though would also be a statement under Section 162 of the
Cr.P.C., forms a separate class and is governed by Sections 24 to 27 of the
Indian Evidence Act, which is a special law and Section 5 of the Cr.P.C., which
contains the saving clause, reads as follows:
“Nothing contained in this Code shall, in the absence of a specific
provision to the contrary, affect any special or local law for the time being in
force, or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by any other law for the time being in force.”
(b) In Pakala Narayana Swami's case [cited supra], the Privy Council
had made an observation, which is extracted above, that the Evidence Act would
be a Special Law and Section 162 of the Cr.P.C., is not a specific provision to the
contrary. Therefore, confessions of an accused have to be treated as a separate
class of 162 statements, which can be used in favour of the accused.
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(xxiv) As regards the submission made by Mr.Sharath Chandran, learned
counsel that the SLP filed against the judgment of this Court in Sudalaimani's
case, was dismissed, we find that the said SLP was dismissed in limine.
(xxv) In Dipakbhai Jagdishchandra Patel's case [cited supra], the
Hon'ble Supreme Court was dealing with the admissions made by the accused
and in that context, held that an admission made between two points of time,
viz., from the beginning of the investigation and till the termination of the same,
would be inadmissible.
(xxvi) In Manoj's case [cited supra], the Hon'ble Supreme Court had held
that the prosecution, in the interest of fairness, should, as a matter of rule, in all
criminal trials, comply with Rule 21 found in the draft guidelines approved by
the Hon'ble Supreme Court [Criminal Trials Guidelines Regarding
Inadequacies & Deficiencies, In re v. State of A.P. (2021) 10 SCC 598], which
required furnishing the list of statements, documents, material objects and
exhibits that are otherwise not relied upon by the investigating officer.
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(xxvii). However, in our view, the statement under Section 161 Cr.P.C.,
cannot be relied upon by the accused, if it falls within the first three categories
that we have mentioned above. If a statement of a particular witness, is in
favour, it is only open to the defence to examine him/her as a witness in Court.
However, we reiterate that the case diary can be looked into for the limited
purpose of ascertaining whether there is any material in the confession of the
accused in his favour to mitigate the rigour of the offence, provided that it is
either consistent with the other evidence on record or not contrary to the other
reliable evidence on record. Thus,
(a) We reiterate the observations made by us in paragraph
No.14 in Selvam's case [cited supra].
(b) We make it clear that all statements under Section 161
Cr.P.C., which fall under the first three categories that we referred to
in sub-paragraph No.xviii, (i.e.,) (a) Statements of the witnesses
examined during the investigation; (b) Statements of the accused that
are exculpatory in nature; and (c) Admissions made by the accused to
the police during the investigation, cannot be used in favour of the
accused.
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(c) The confession, forms a separate class and it is governed by
Section 24 to Section 27 of the Indian Evidence Act, which is a Special
Law. Section 25 of the Indian Evidence Act, which prohibits the use
of a confession only 'against an accused', would therefore prevail over
the general rule in Section 162 of the Cr.P.C.
15. On a perusal of the confession of the accused, it is seen that the first
appellant attacked the deceased due to a scuffle. The appellants had stated that
the deceased had attacked the second appellant by dragging and pulling her
hands and when the first appellant tried to prevent the deceased, she had
attacked him as well and therefore, he picked up a wooden log that was nearby
and attacked the deceased and thereafter strangulated her neck. The act of the
appellants, in our view, had been committed without premeditation in a sudden
fight in the heat of passion and the nature of the weapon used suggests that they
have not taken undue advantage or acted in a cruel or unusual manner. The fact
that the appellants were also injured in the occurrence would show that the
confession explaining the circumstances under which the attack was made,
cannot be ignored.
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16. Therefore, in the absence of any other evidence suggesting the exact
manner of the occurrence, the evidence of the investigating officer and the other
evidence on record, to show that the accused also had sustained injuries, we are
inclined to rely upon the portion of the confession of the appellants/accused,
which suggests that their acts would fall within Exception IV to Section 300 of
the Cr.P.C.
17. Therefore, we find both the appellants are guilty of the offences under
Sections 304 (I) of the IPC and also for the offence of screening under Section
201 of the IPC. We are now informed that the first appellant is in custody since
2015. Hence, we are of the view that the interest of justice would be met if the
first appellant is sentenced to period already undergone for the offences under
Sections 304 (I) of the IPC and 201 of the IPC. Since second appellant is
already been released prematurely, no further direction is required and her
premature release is hereby recorded.
18. Accordingly, this Criminal Appeal is partly allowed. The first
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appellant is directed to be released forthwith, unless his presence is required in
connection with any other case.
(M.S.R.,J.) (S.M.,J.)
02.08.2024
Index : Yes/No
Neutral citation : Yes/No
ars/dk
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Copy to:
1. The II Additional Sessions Judge,
Mahila Court (Fast Track Mahila Court),
Tiruppur District.
2.The Inspector of Police,
Alangiyam Police Station,
Tiruppur District.
3. The Superintendent of Prisons,
Central Prison, Coimbatore.
4.The Public Prosecutor,
High Court of Madras,
Chennai – 600 104.
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M.S.RAMESH,J.
AND
SUNDER MOHAN,J.
ars
Pre-delivery judgment in
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Dated : 02.08.2024
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