Full Judgment Text
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CASE NO.:
Appeal (crl.) 1018 of 1998
PETITIONER:
State of Andhra Pradesh
RESPONDENT:
Kanda Gopaludu
DATE OF JUDGMENT: 27/09/2005
BENCH:
H.K. Sema & P.P. Naolekar
JUDGMENT:
JUDGMENT
SEMA, J.
The respondent was convicted by the trial court under Section 302 IPC. The
trial court relying upon the extrajudicial confession made before PW.1,
PW.2 and PW.3 found the respondent guilty. The trial court also relied upon
the evidence of PW.9, the Investigating Officer corroborated by the
evidence of PW.5, Doctor. On appeal being preferred by the accused, the
High Court acquitted the accused respondent herein.
This appeal is preferred by the State by special leave.
The High Court recorded the acquittal on the ground that PW.1 and PW.2
before whom the accused made extra-judicial confession are strangers and
there is no reason for the respondent to make the extra-judicial confession
before PW.1, PW.2 and PW.3. The High Court also found that the statements
of PWs. 1 and 2 were full of contradiction and artificial. On this ground
the accused was acquitted, however, the High Court has not assigned any
reason with regard to the alleged contradiction between the statements of
PW.1 and PW.2 and the acquittal is not supported at all. It is now well
established principle of law that the judicial decision is based on
reasons. We have been taken through the evidence of PW.1, 2 and 3 before
whom the accused made extra-judicial confession. It is now established
principle of law that extra-judicial confession is admissible if it
inspired confidence and made voluntarily. The High Court reasoning that the
accused has made a confession statement before a stranger is totally
perverse. The evidence on record shows that PW.1 is the Sarpanch of the
village, PW.2 and PW.3 are also ward members of the village gram panchayat.
It is the case of the prosecution that the accused had come to the house of
PW.1 where PWs.2 and 3 were sitting together and chatting and he had made
extra-judicial confession before them voluntarily. It is also the evidence
on record that PWs.1 and 2 went to the Police Station and lodged an FIR
while PW.3 was with the accused in the house of PW.1. It is also in the
evidence on record that PW.9 arrested the accused from the house of PW.1.
PWs.1, 2 and 3 were subjected to lengthy cross-examination. Not even a
suggestion was put to the witnesses that the confession was tainted and
non-voluntary or that it was obtained by coercion, inducement or promise of
favour. In the case of Gura Singh v. State of Rajasthan, [2001] 2 SCC 205,
this Court held in paragraph 6 at SCC p. 212 as under:
"It is settled position of law that extrajudicial confession, if true and
voluntary, it can be relied upon by the court to convict the accused for
the commission of the crime alleged. Despite inherent weakness of
extrajudicial confession as an item of evidence, it cannot be ignored when
shown that such confession was made before a person who has no reason to
state falsely and to whom it is made in the circumstances which tend to
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support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur
Singh v. State of Vindhya Pradesh, AIR (1954) SC 322 this Court again in
Maghar Singh v. State of Punjab, [1975] 4 SCC 234 held that the evidence in
the form of extrajudicial confession made by the accused to witnesses
cannot be always termed to be a tainted evidence. Corroboration of such
evidence is required only by way of abundant caution. If the court believes
the witness before whom the confession is made and is satisfied that the
confession was true and voluntarily made, then the conviction can be
founded on such evidence alone. In Narayan Singh v. State of M.P., [1985] 4
SCC 26 this Court cautioned that it is not open to the court trying the
criminal case to start with a presumption that extrajudicial confession is
always a weak type of evidence. It would depend on the nature of the
circumstances, the time when the confession is made and the credibility of
the witnesses who speak for such a confession. The retraction of
extrajudicial confession which is a usual phenomenon in criminal cases
would be itself not weaken the case of the prosecution based upon such a
confession. In Kishore Chand v. State of H.P., [1991] 1 SCC 286 this Court
held that an unambiguous extrajudicial confession possesses high probative
value force as it emanates from the person who committed the crime and is
admissible in evidence provided it is free from suspicion and suggestion of
any falsity. However, before relying on the alleged confession, the court
has to be satisfied that it is voluntary and is not the result of
inducement, threat or promise envisaged under Section 24 of the Evidence
Act or was brought about in suspicious circumstances to circumvent Sections
25 and 26. The Court is required to look into the surrounding circumstances
to find out as to whether such confession is not inspired by any improper
or collateral consideration or circumvention of law suggesting that it may
not be true. All relevant circumstances such as the person to whom the
confession is made the time and place of making it, the circumstances in
which it was made have to be scrutinized. To the same effect is the
judgment in Baldev Raj v. State of Haryana, [1991] Supp 1 SCC 14. After
referring to the judgment in Piara Singh v. State of Punjab, [1977] 4 SCC
452 this Court in Madan Gopal Kakkad v. Naval Dubey, [1992] 3 SCC 204 held
that the extrajudicial confession which is not obtained by coercion,
promise of favour or false hope and is plenary in character and voluntary
in nature can be made the basis for conviction even without corroboration."
PW.9, who is the Investigating Officer deposed that he received an
information at about 8.30 a.m. on 25.1.1992 and rushed to Hukumpeta PS and
reached there at about 9.30 a.m. and there he received a copy of the FIR
from PW.8 and took up the investigation. In the course of the Investigation
he arrested the accused from the house of PW.1 and interrogated him in the
presence of Administrators PW.1 and 2. He also found blood stains on the
shirt of the accused which the accused was wearing and seized them under
the cover of Ex.P.2 marked as M.O.5. He was also led by the accused in the
presence of PWs.1 and 2 to the scene of occurrence. From the place of
occurrence in the presence of PWs.1 and 2 he made a seizure under the cover
Ex.p.3 and seized M.O.1 and 2 and prepared a sketch map. From the place of
occurrence the accused led the Investigating Officer and others where the
dead body of the deceased was found. The dead body was found floating in
the well waters. The dead body was identified by PW.6 who is the father of
the deceased. The Investigating Officer also stated that the depth of the
water was only two and a half feet. The inquest report is Ex.P.5. The
Investigating officer found injuries on the tip of the nose of the
deceased, right nostril, nail marks on the neck and throat of the deceased.
He also found abrasions on the right and left knees and bitten marks on
both the cheeks of the deceased. The statement of Investigating Officer
about the injuries found on the body of the deceased at the time of
preparing the inquest report Ex.P.5 is found well corroborated in material
particular by the evidence of Doctor, PW.5. The Doctor, PW.5 found the
following injuries:
1. A lacerated injury over the tip of the nose, both medial ends of
the nose shows lacerations measuring about 1" x 1/4" x cartilage deep;
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2. An abrasion present over the both elbows on the posterior aspect
measuring about 3/4" x 1/4" size;
3. An abrasion present on both sides of the neck about 4 on the left
side and 6 on the right side measuring about 1/2"x ," in size; reddish in
colour;
4. An abrasion present over the right knee about 1/5" in diameter,
reddish brown in colour;
5. A scar mark present in the from of "X+" shaped over the upper 1/3rd
of the lateral aspect of the thigh.
On internal examination Doctor found, the following :- On opening the
thorax both lungs were reddish brown in colour, cut section showed
congested. On squeezing nothing particular, HEART ; Normal size and shape,
reddish in colour. Cut Section shows blood clots in the right chamber.
LIVER; Dark reddish brown in colour. Normal in size and shape. Cut section
nothing particular. Gall bladder full. Spleen : Reddish violet in colour
normal in size. Cut Section shows congestion. KIDNEYS ; Both kidneys
reddish in colour. Cut Section shows congestion. Intestines : Pale reddish
in colour. Stomach : Pale reddish in colour, contains semi-digested food
material about 4 ounces. Whitish in colour. Bladder : Empty. UTERUS :
Normal in size and shape. Cut Section nothing particular."
The Doctor opined that the deceased appears to have been died of asphyxia
due to throttling with the duration of about 18 to 20 hours prior to the
post-mortem examination.
The Doctor, PW.5 in cross-examination denied the suggestion that the death
is suicidal. The Doctor categorically ruled out the suicidal death. He
stated that in case of drowning by asphyxia on sequeezing of lungs there
will be frothy blood stained fluid oozint on cut section. In case of death
on account of asphyxia by drowning there will be forthy blood stained fluid
both from the nose and mouth. There will not be any swelling of the neck in
cases of death by drowning on account of asphyxia. The Doctor has denied a
suggestion that the fracture of hyoid bone also will occur by a sudden fall
on the edge of the stones.
We have been taken through the evidence of PWs.1, 2 and 3 before whom
extra-judicial confession has been made by the accused. The testimony of
Pws.1, 2 and 3 are consistent. The learned counsel for the respondent
pointed out that in the evidence of PWs.1 and 2 there is contradiction that
the accused did not state before them that he came seeking protection from
them. In our view, this discrepancy cannot be termed as a contradiction
which would be fatal to the prosecution case. Every discrepancy in the
statement of witness cannot be treated as fatal to prosecution case. The
discrepancy which is not fatal to the prosecution does not create any
infirmity. The incident was taken place on 24.1.1992 and PW.2 was examined
on 22.1.1996 after almost four years. Human memories are apt to blur with
the passage of time. After lapse of almost four years, it cannot be
expected that a witness can depose with mathematical precision.
Apart from the unimpeached evidence against the accused there is yet
another strong incriminating material apparent against the accused. In his
statement under 313 the accused while denying the commission of any offence
took the plea that the deceased has committed suicide. His specific plea
was that the deceased committed suicide as she had no issue. This plea is
completely belied by the medical evidence of Doctor, PW.5. We have no
hesitation to hold that he has taken a false plea and this plea can be
taken as an additional link in the chain of circumstances.
In the case of Swapan Patra and Ors. v. State of W.B., [1999] 9 SCC 242
this Court held in paragraph 4 at SCC p. 243 as under:-
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"It is well settled that in a case of circumstantial evidence when the
accused offers an explanation and that explanation is found to be untrue
then the same offers an additional link in the chain of circumstances to
complete the chain. Applying the aforesaid principle, we have no hesitation
to hold that the circumstances established in the case complete the chain
of circumstances to prove the charge of murder against the appellant Swapan
Patra and, therefore, the conviction of appellant Swapan Patra has to be
upheld under Section 302 IPC. So far as the other two appellants are
concerned, as stated earlier, in the absence of any positive evidence even
about their presence in the house at the relevant point of time, it is
difficult to rope them in even if all other circumstances narrated earlier
are established and, therefore, they are entitled to an order of
acquittal."
"In the case of State of Maharashtra v. Suresh, [2000] 1 SCC 471, the same
was reiterated in paragraph 27 at SCC p. 480 as under:-
"It is regrettable that the Division Bench had practically nullified the
most formidable incriminating circumstance against the accused spoken to by
PW 22 Dr. Nand Kumar. We have pointed out earlier the injuries which the
doctor had noted on the person of the accused when he was examined on
25.12.1995. The significant impact of the said incriminating circumstance
is that the accused could not give any explanation whatsoever for those
injuries and therefore he had chosen to say that he did not sustain any
such injury at all. We have no reason to disbelieve the testimony of PW 22
Dr. Nand Kumar. A false answer offered by the accused when his attention
was drawn to the aforesaid circumstance renders that circumstance capable
of inculpating him. In a situation like this such a false answer can also
be counted as providing ‘‘a missing link’’ for completing the chain."
Another incriminating material against the accused is the seizure of shirt
stained with blood. The shirt was sent for FSL. The FSL report was marked
as EX.P.15. The report shows that Item No.1 which is the shirt seized from
the accused stained with human blood.
In the premises afore-stated, the High Court has committed a grave error in
law as well as in facts in recording the acquittal. The High Court order of
acquittal is hereby set aside. The order of the trial court recording the
conviction of the accused is restored. The accused, Kanda Gopaludu is on
bail, his bail bond and surety stand cancelled. He is directed to be taken
into custody forthwith. Compliance within one month.
The appeal is allowed.