Full Judgment Text
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PETITIONER:
CHANDRAN
Vs.
RESPONDENT:
STATE OF TAMIL NADU
DATE OF JUDGMENT16/08/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KAILASAM, P.S.
CITATION:
1978 AIR 1574 1979 SCR (1) 176
1978 SCC (4) 90
ACT:
Code of Criminal Procedure 1898-Magistrate not
appending memorandum certifying that he believes that the
confession was voluntarily made by the accused-if fatal to
the use of confession against accursed at the trial.
Words and phrases-"Hope" and "believe"-meaning of.
HEADNOTE:
The deceased, an aged, wealthy widow living alone
always wore on her person valuable jewellery. The
prosecution alleged that with a view to rob her of all her
jewels, the appellant, who was formerly her servant, along
with two others, decoyed her into a field nearby and
murdered her and took away all the jewels.
In the confessional statement of the appellant recorded
by the Magistrate he appended a note at the foot-"I" hope,
that this statement was made by him voluntarily". The
Magistrate had omitted to certify that "this confession was
taken in his (the appellant’s) presence and hearing and was
read out to the person making it and it is admitted by him
to be correct, and it contains a full and true account of
the statement made by him"
Acquitting the third accused the Sessions Judge
convicted the appellant and the second accused under section
302 read with section 120B of Indian Penal Code and under S.
379 IPC and sentenced them to death.
On appeal, acquitting second accused, the High Court
maintained the conviction and sentence passed against the
appellant.
In further appeal to this Court it was contended on
behalf of the appellant that (1) the Magistrate did not
testify that he believed that The confessional statement had
been made by the accused voluntarily and this defect being
one of substance is not capable of being cured and (2) the
appellant’s confessional statement leading to the recovery
of the jewels was neither proved nor exhibited in evidence,
Allowing the appeal in part,
^
HELD: (1) (a) If, in the course of police
investigation, the Magistrate recording the confession of an
accused, does not certify on the face of the record his
satisfaction or belief as to the voluntary nature of the
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confession nor testifies orally, as to such satisfaction or
belief, the defect so caused would be fatal to the
admissibility and use of the confession against the accused
at the. trial. [187H-188A]
(b) There is a marked difference in what is connoted by
"hope" and "believe". "To hope" means "to want and expect.’,
"to look forward with expectation and desire". "Hope" is a
wishful feeling, floating on nebulous foams projected into
the unknown future. Deep hidden in "hope’ is wishful a
lingering doubt, a speck of suspicion that what is desired
and expected may not turn out true. Not unoften in the mind
of the person hoping, there lurks
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subconscious fear that the "hope" may turn out a "dupe". In
contrast the A term "believe" in the sense in which it is
used in section 164 Cr.P.C. has ’logical confidence’ or
’rational conviction‘ as its essential element. It imports a
very,. high degree of expectation wrought by reason, a
satisfaction fact rooted in terra firma, free from doubt as
to the truth of the fact perceived and believed [188E-G]
(c) The Magistrate, a judicial officer, advisedly chose
to use the word ’hope’ instead of ’believe’ because he was
not fully convinced that the confession had been voluntarily
made and his mind was troubled by suspicion and doubt is to
the voluntariness of the confession. In view of this the
retracted confession should be excluded from consideration.
[188H]
(2) (a) on the facts. Of this case it cannot be said
that the recovery of jewels had been made from the exclusive
possession or control of the appellant. Assuming it to be
so, the inference drawn from their recovery at the instance
of the appellant cannot legitimately be stretched to hold
that he was a participant in the murder of the deceased.
’The blood on the jewels is not sufficient to establish,
unerringly the appellant’s complicity in the murder, when it
was the prosecution’s own care that the second accused
murdered the deceased and removed the jewels from her body
and gave them to the appellant. [190D 190E]
(1) The High Court had acquitted the second accused and
altered the conviction of the appellant to one under s. 302
read with s. 34 I.P.C. The safest limit to which the
inference can extend is that the appellant was only receiver
of stolen property. [190C, 191C]
(c) The prosecution story of the recovery of the blood
stained clothes of the deceased if the instance of the
appellant cannot be believed because their was no mention of
the same in the, maluazar. It does not stand to reason that
the appellant would preserve and keep such worthless
incriminating Articles in his house for 23 days after the
murder. [190G, 191A, 191B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
588 1976
(Appeal by Special Leave from the Judgment and order
dated 28-8-1975 of the Madras High Court in Criminal Appeal
No. 399 of 1975 and referred Trial No. 9 of 1975)
Altaf Ahmed (A. C.) for the Appellant
A. V. Rangam for the Respondent
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave is directed
against a judgment of the High Court of Madras, whereby it
maintained the conviction of the appellant Chandran under
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Section 302 read with Section 34 Penal Code, and confirmed
the sentence of death inflicted on him by the Session Judge,
Nagapattinam.
The prosecution case as it emerges from the record,
(including the confessional statement, Ex. P. 27) of the
appellant, is as follows:-
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The murdered person in this case was Gunabushanathachi,
an aged wealthy widow, who was living alone in her ancestral
house in the East Street of Kodiakarai. Her sons and
daughters were grown up persons and have been living
separately from her. Her second son Ragupathy (P.W. 5) is
living and carrying on business at Vedaranyam. Her married
daughter Rukmani Ammal (P.W. 6) is living with her husband
ill the North Street at Kodiakarai. The husband of the
deceased had died about 21 years before the occurrence in
question. The deceased was managing the family proper ties
The appellant was working as a servant in the house of
the deceased till he attained the age of 15 years. Even
thereafter, when ever called upon by the deceased, he used
to work of and on tor her. Jayabal was co-accused No. 3 and
Vaithi alias Vaithianathan was co-accused No. 2 who were
jointly tried with the appellant, Chandran. Appellant,
Vaithi and Jayabat will hereafter be referred to as A-l A-2
and A-3 respectively. A-2 is related to A-1 and was his fast
friend. A-1, A-2 and A-3 were all living in the Harijan
Colony at Kodikari.
A-1 contracted intimacy with Papathi (P.W. 1), the
sister of A-3, A-1 was desirous of marrying her. A-3 was
willing to bring about this matrimonial alliance. About a
month before the occurrence, A-1 made a proposal of marriage
to Papathi. She asked A-1 as to what would he give her as a
gift if she married him. A-1 promised to give her two
jewels, a thodu and thongattan. She further questioned him
as to where from he would get the money for acquiring those
jewels. A-1 assured that he would find out some means to get
the promised jewels. Papathi used to meet A-1 in the Kollai
(field) of the deceased where Pappa (P.W. 12) was living. A-
1 is related to Pappa as her brother-in-law. She also heard
the conversation between A-1 and P.W. 1, relating to the
proposal of marriage.
The deceased always used to wear a double-row gold
chain (M.O. 2), three gold bangles (M.O. 3 series) a pair of
gold thodus studded with seven white stones and a gold
finger ring.
Some weeks before the occurrence, A-1, A-2 and A-3 were
taking tea at the Katha Pillai’s tea-stall at about 8 A.M.
They saw the deceased coming from her house and proceeding
to Paramassivam Temple. She was, as usual, wearing her gold
ornaments. There upon, A-2 (Vaithi) suggested that if the
deceased would go alone to Kila Kollai which was her forest
field, A-1 should inform A-2 who
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would murder her there and take away her jewels and
appropriate A the same between them. The two had this talk
on reaching the house of A-1. A-1 reluctantly agreed to the
suggestion. A-1 further told A-3 about the plan to get the
jewels to meet the expenses of his proposed marriage with A-
3’s sister. A-3 also approved of the plan. Subsequently, at
the suggestion of A-2, it was agreed that A-1 would decoy
the deceased to Kila Kollai on the false representation that
some persons were cutting her trees in that field.
In pursuance of the above conspiracy, on January 4,
1974 at about 10 A.M., A-1 came to the doorway of the
deceased and called her saying that certain trees were lying
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cut in the Eastern Kollai belonging to her and that she
should go and see them. The deceased came out later and
accompanied A-1 to the Kollai, but returned shortly
thereafter. All this was seen and heard by Smt. Pappa Ammal
(P.W. 11) who was living in a house just opposite the house
of the deceased, and was at the relevant time, standing in
front of her house holding her child in her arms. On her
return, the deceased told P.W. 11 that no trees were Lying
cut there. She further informed P.W. 11 that she, along with
her daughter (P.W. 6), would go to Vedaranyam in the evening
for worship in the Temple since it was a Vaikunta Ekadasi
Day. The same day at about S p.m. Sundarmbal (P.W. 2), was
sprinkling water at the entrance of her house situate in
East Street, Kodiakarai. She noticed A-1 sitting on the
medai of a well near the Manmathankoil in that street. P.W.
2 then saw the deceased coming out of her house and
proceeding towards the south carrying a torattu stick (M.O.
4) and a coir rope (M.O. 5). On seeing the deceased, A-1
asked her to come quickly. P.W. 2 heard this and saw the
deceased going with the accused towards the south. She also
saw that the deceased was at that time wearing a green sari
(M.o. 6), a red jacket (M.o. 1), a pair of rubber sandals
(M.o. 7 series) and the aforesaid jewels.
At about the same time, Papathi (P.W. 1) who was coming
after taking bath at the well, Mallia Kinaru and Thamarai
(P.W. 3) who was coming to take water from the well, saw A-1
carrying the coir rope (M.o. 5) immediately followed by the
deceased who was carrying the thorattu stick (M.o. 4). She
was wearing the aforesaid clothes and jewels. On seeing P.W.
3, the deceased told her that she was accompanying A-1 to
the Eastern Kollai to see some trees which were lying cut
there. The deceased asked P.W. 3 to send her father,
Mariappan (P.W. 4), to that Kollai. P.W. 3 replied that her
father had gone for fishing. The deceased then asked her to
send her father to the Kollai as soon as he returned home.
On
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reaching home, P.W. 3 passed on the message to her father,
P.W. 4. The latter thereupon proceeded to the Kollai. On
reaching near the Kollai, P.W. 4 shouted to, A-1 by name and
found the latter standing under a portia tree. A-1 told P.W.
4 that the deceased had gone to the Western Kollai and asked
P.W. 4 to come away with him (A-1). P.W. 4 informed A-1 that
he had been asked by the deceased to come to the Eastern
Kollai where some trees were lying cut. A-1 then told P.W. 4
that there were no such trees. A-1 then went away towards
the East, while P.W. 4 returned home
The prosecution case further is that the deceased was
thus decoy ed by A-1 to the Eastern Kollai, where A-2 and A-
3 were Lying in ambush. A-2 pounced upon the deceased and
assaulted her with a sharp cutting weapon severing the neck
and one hand from the wrist to facilitate the removal of the
gold bangles. After killing the deceased, they removed her
jewels.
On January 5, 1974 at about 1 P.M., A-1 met Kaliappan
(P.W. 13) and showed him the gold bangle (M.o. 11) and
offered to give it in exchange of cash. Asked from where he
had obtained the bangle, A-1 told P.W. 13 that he found it
in the New Tank. P.W. 13 took the bangle and asked A-1 to
come in the evening to get the money. Accordingly, at 5.30
p.m. on the same day, A-1 went to P.W. 13 and received Rs.
20/- from him in lieu of the bangle. At the time of the
receipt of Rs. 20/-, A-1 was accompanied by his younger
brother and A-3. On the following day, in the evening, A-1
and A-3 again met P.W. 13 near the culvert in the village
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and took some arrack together. All the three then went to
the house of P.W. 12 and took coffee together which was
prepared by her. All the three stayed in the house of P.W.
12 for the night.
On January 6, 1974, P.W. 9 and P.W. 10 were chasing a
rabbit which ran into the Eastern Kollai of the deceased.
They had put up a net for catching the rabbits on the
Northern side of the Kollai At that time, A-2 came from the
Eastern side and asked them to remove the net saying that
there was no rabbit in that Kollai. P.W. 9 and 10 insisted
that they had themselves seen the rabbit going into the
Kailai and asked A-2 as to how he was saying that the rabbit
had not gone there. They asked A-2 to remain there while
they proceeded further towards the South and then discovered
the dead body of the deceased lying there with the head and
left hand severed from the body. They all then returned and
informed A-1 what they had seen. A-2 and A-3 told P.Ws. 9
and 10 that if they divulged the matter to
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anybody, they would get into trouble and therefore it was
better for them to leave the place after removing the net.
P.W. 5 and P.W. 10 did accordingly.
At about 1.30 a.m. that day, P.W. 15 and 16 were
proceeding to the sea-shore to hoard a boat which was about
to launch for deepsea fishing. On seeing, A-2 they asked him
if he would also like to accompany them. A-2 did not answer.
Thereupon, they enquired why he was so morose. A-2 then
confessed that he had along with A-l and A-3 murdered the
deceased in the Eastern Kollai and robbed her of the jewels
worn by her. A-2 further informed those witnesses that A-l
had taken away those jewels and escaped with the booty.
On January 7, 1974, at about 6 a.m. A-l himself went to
the house of P.W. 7, President of the Panchayat Board,
Kodiakarai, who is the brother of the deceased’s husband and
informed him that the deceased was lying dead in the Eastern
Kollai. Thereupon, a large crowd, including P.W. 4, P.W. 6
and P.W. 7, proceeded to the Eastern Kollai. A-l who was
following the crowd, slipped away. In the Eastern Kollai,
they found the dead-body of the deceased. There were no
jewels on the body. Her head and one arm had been severed.
P.W. 7 sent word to the village Munsif (P.W. 19) who arrived
at the scene of crime at 8 a.m. and prepared the report (Ex.
P-5) and the yadast (Ex. P-6) and sent them to the Police
Station through a bearer. Documents P-S and P-6 were
received in the Police Station by the Sub-Inspector (P.W.
13) at 10 a.m. On the same day. After registering a case
under Sections 302, and 379, Penal Code, the Sub Inspector
sent express First Information Report to the concerned
authority. The Inspector of Police (P.W. 34), on receiving a
telephonic message, reached the scene of occurrence at 3
p.m. and started investigation. He prepared the inquest
report and took into possession the articles found there. He
also took the finger-prints of the deceased.
The autopsy of the deceased was performed by the
Medical officer, Dr. Ethirajan (P.W. 24) at 9 a.m. On the
spot. According to the Doctor, the deceased died of shock
and haemorrhage due to the fatal injury involving severing
of the head and left hand. In his opinion the death was
instantaneous.
A-l was arrested by the Inspector of Police on January
31, 1974 at 11 a.m. A-l in the presence of P.W. 21, the
Karnam, lead the police party to Odayankollai and produced
the gold chain (M.O. 2) and
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two bangles of M.O. 3 series from the roof of a thatch in
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the occupation of one Murugan. These jewels were found
covered with the banian (M.O. 20). The Inspector seized the
articles and prepared the Memo (Ex. P. 11). A-1 then took
the Police party to the field of Ayyathurai Pillai and
produced the aruval (M.O. 21) from a bush. A-1 then took the
police party to the house of P.W. 13 and asked.P.W. 13 to
produce the bangle. Thereupon P.W. 13 produced the bangle
(M.O. 11) which was seized by the Inspector under Memo (Ex.
P-13). Thereafter, A-1 led the police party to his house and
produced the Kaili (M.O. 22) and the towel (M.o. 23) which
were also seized and sealed into a parcel by the Inspector.
on February 2, 1974, the Inspector of Police made the
application (Ex. P-25) to the Sub-Divisional Magistrate,
Mannargudi, requesting for recording the confession of A-l.
He further requested that the accused be kept in a separate
cell in the Jail till confession was re corded. Accordingly,
the accused was admitted to the Sub-Jail Two days
thereafter. A-l was produced from the Sub-Jail before the
Sub Divisional Magistrate at 3.30 p.m. The preliminary
questioning of the accused to ascertain if he was going to
make a confession voluntarily, was done by the Magistrate on
this date. Ex. P-26 is a re cord of those proceedings. A-1
was then sent back to the Sub-Jail to give him sufficient
time for reflection.
On February 8, 1974, he was again sent for from the
Sub-Jail by the Sub-Divisional Magistrate. Then, on that
day, his confessional statement (Ex. P. 27) was recorded by
the Magistrate.
A-2 was arrested at 2.30 p.m. On April 4, 1974. Nothing
was recovered in consequence of the statement made by him.
A-1, A-2 and A-3 were committed for trial before the
Sessions Judge. A-2 was charged under Section 302 I.P.C.
simpliciter, for committing the murder of the deceased. All
the three accused were further charged under Section 302,
read with Section 120-B I.P.C. A separate charge under
Section 379 was framed against A-1 in respect of the theft
of the gold jewels, while A-1 to A-3 were further charged
under Section 379 read with Section 120-B I.P.C.
At the trial, the plea of A-1 to A-3 was one of
complete denial of the commission of the offences. A-1
stated that he had made the confession before the Magistrate
on account of torture and ill-treatment by the Police
Inspector. He denied the recovery of the gold ornaments at
his instance.
The Sessions Judge acquitted A-3 of all the charges.
He, however, convicted A-1 under Section 302 read with
Section 120-B I.P.C. and under Section 379 I.P.C. On the
capital count, he awarded the death
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penalty. Similarly, A-2 was convicted under Section 302,
I.P.C. read A with Section 120-B and under Section 379
I.P.C. He was also awarded the death penalty on the capital
charge.
A private revision was filed before the High Court
against the acquittal of A-3. A-1 and A-2 appealed against
their conviction. The High Court accepted the appeal of A-2
and acquitted him but maintained the conviction of A-1 in
regard to the murder but altered it to one under Section 302
read with S. 34, Penal Code, and confirmed his death
sentence. A-1’s conviction and sentence under Section 379
were also maintained.
A-1 has now come before us in appeal by special leave
under Article 136 of the Constitution.
There is no State appeal against the acquittal of A-2
by the High Court. We arc therefore, in this appeal
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concerned with the case against A-l only.
The High Court has listed 11 pieces of evidence, out of
which the first ten are of circumstantial evidence and the
last is A-1’s confession, Ex:. P. 27, recorded by the
Magistrate (P.W. 28). The evidence, as catalogued by the
High Court is as under:-
"(1) Motive for the alleged murder, and the theft of
the jewels from the person of the deceased, as testified to
by P.W. 1 and 12;
"(2) The evidence of P.W. 11 that on 4-1-1974 at about
10 a.m. she noticed the first accused standing at the
threshold of the house of the deceased and calling her,
saying that some trees were lying cut in her Eastern Kollai:
.
"(3) The evidence of P.W. 2 that at about 5 p.m. On 4-
1-1974, she saw the first accused and the deceased going
towards the South carrying a thorattu stick (M.o. 4) and
coir rope, (M.o. 5), respectively and that she heard the
first accused (urging the deceased to hurry up) and she saw
both the first accused and the deceased going towards the
South;
"(4) The evidence of P.W. 1 and 3 to the effect that at
about 5 p.m. On 4-1-1974, they both saw the deceased going
with the thorattu stick (M.o. 4) followed by the first
accused who was carrying the coir rope (M.o. 5) and
proceeding towards the eastern Kollai.
(5) P.W. 4’s evidence that, when he was told by P.W. 3
that the deceased had asked him to go to the Kollai, since
she had been told that some trees were lying there cut, he
went towards the eastern Kollai, that when he was going
along the foot path to the west of the Kollai, he called out
to the first accused by his name: that the first accused
184
came and told him that the deceased had gone away to the
western kollai and that when he (P.W. 4) told him that the
deceased had asked him to come there for the purpose of
seeing some trees which were lying there cut, the first
accused told him that there were no such trees and asked him
to come away with him.
"(6) The evidence of P.W. 6, the daughter of the
deceased that on the evening of 4-1-1974, the first accused
came and gave her a tender coconut and told her that her
mother had gone to Thiruthuraipundi by bus.
"(7) The evidence of P.W. 7 and P.W. 8 that (on 7-1-
1976 at about 6 a.m.) after the first accused had come and
told P.W. 7 that the deceased was lying dead in the Eastern
Kollai, P.W. 7 and P.W. 8 went with a number of persons to
the Kollai and that the first accused followed them but
slipped away before they reached the scene of the
occurrence.
"(8) The testimony of P.W. 13 to the effect that on 5-
1-]974 at about 1 p.m A-1 gave him the bangle (M.o. 11) and
asked him to lend him Rs. 20/- on the security of the bangle
and that he (P.W. 13) kept that bangle with him until the
first accused came with the Police and pointed him out and
asked him to produce the bangle, whereupon he produced M.o.
11 before P.W. 34 (Police Inspector) in the presence of P.W.
21 (on 31-1-1974).
"(9) The recovery (on 31-1-1974) of the chain (M.O.2)
and the two bangles out of M.o. 3, which belonged to the
deceased on the information furnished by the first accused,
in pursuance of his statement, Ex. P-27, from the
Attukottagai, which jewels when later sent to the
Serologist, were found to have been stained with human
blood.
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"(10) The production (on 31-1-74) of M.O 22 an(l 23
by the first accused, as seen from the testimony of P.Ws. 21
and 34, which items of clothing when sent to the Serologist,
were found to have been stained with human blood.
"(11) The judicial confession, Ex. P-27, recorded
by P.W. 28 from the first accused."
Mr. Altaf Ahmed, Advocate, who has meticulously studied
the case, assisted us as amicus curaie. He has taken us
through the evidence on the record and the judgments of the
courts below. He has made these submissions on behalf of the
appellant:
(1) (a)The confessional statement, Ex. P-27, was
inadmissible in evidence because the Magistrate who recorded
it, did not comply with the requirement of Section 164, Cr.
P.C. inasmuch as he
185
did not in the memorandum. Ex. P-28, at the foot of the
record, certify the voluntariness of the confession and of
the fact of the statement having been read over to the
accused, and its being a true and accurate record of the
statement made by the accused.
(b) This defect is one of substance and not merely of
form, and therefore could not be cured under Section 533
Cr.P.C.
(c) in any case, the Magistrate (P.W. 28) did not
testify that he was satisfied and believed that the
confessional statement had been voluntarily made by the
accused. Thus, it could not be said that the defect had been
remedied by the prosecution in the manner specified in
Section 533.
2. (i) Circumstance No. 9, as enumerated by the High
Court, had not been firmly and fully established. (a) No
confessional statement of the appellant leading to the
recovery of the jewels (M.O. 2 and M.o. 3) was proved or
exhibited in evidence under Section 27, Evidence Act; (b)
the alleged recovery of the jewels was from the roof of a
house which was not in the occupation of the appellant; (c)
the recovery was admittedly made about 27 or 28 days after
the murder. In view of the facts (a), (b) and (c), the
recovery of the jewels would not be incompatible with the
inference that the appellant was only a receiver of stolen
property and not a participant in the murder of the
deceased.
(ii). The High Court was manifestly wrong inasmuch as
it said that these jewels were recovered in pursuance of the
confessional statement, Ex. P-27.
3. Circumstance No. 10 had also not been fully and
cogently established inasmuch as these clothes (M.O.. 22 and
23 of Sari) were allegedly recovered from a house which was
in the joint occupation of the appellant and other adults,
and those articles were not lying concealed but were hanging
at an exposed place accessible to all the occupants of the
house. This being the case, the circumstance of the recovery
of these clothes, 27 or 28 days after the murder, could not
definitely connect the appellant with the murder.
4. The remaining circumstances 1 to 8 listed by the
High Court fell far short of establishing beyong doubt the
appellant’s participation in the murder.
5. Circumstance No. 8, can, at the most, show that
the appellant was a receiver of stolen property only 13-520
SCI/78
186
As against this, it is urged by the, counsel for the
respondent, that the confessional statement, Ex. P-27,
cannot be ruled out of evidence merely on the ground that
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the Magistrate in the memorandum, Ex. P-28 appended by him
to Ex. P-27, used the word "hope", instead of "believe". It
is maintained that these defects pointed out by the counsel
for the appellant, ill Ex. P-27 were mere defects of form
which stood rectified under Section S33 Cr. P.C. by the oral
evidence of the Magistrate (P.W. 28). Our attention has been
invited to the oral evidence of the Magistrate to the
effect.
"on 8-2-74 at 4.00 p.m., I repeated the warning,
and I was satisfied that A-1 was in a position to live
a voluntary statement.. Ex. P-27 is the statement given
by him I read over the statement to him and he admitted
it to be correct and signed on all pages. Ex. P-28 is
the certificate appended to Ex. P-27."
Stress has also been placed on the fact that the Magistrate
had put all the necessary questions, during the preliminary
examination of the accused on February 7, 1974 to ensure
that he was going to make a confession voluntarily, and
thereafter, he gave him about 24 hours in Sub-Jail for
reflection and to shed fear of the police, if any, and then
on February 8, 1974 at 4 p.m., after repeating the warning,
recorded the statement, Ex. P-27, of the appellant. It is
against this ground-proceeds the argument that the inept use
of the word "hope" in the memorandum, Ex. P-28 and the oral
evidence of the Magistrate, referred to above, is to be
appreciated.
In regard to Circumstance 9, counsel has been unable to
trace and point out any confessional statement of the
accused. exhibited in evidence, in pursuance of which the
jewels (M.o. 2 and M.o. 3) are said to have been recovered.
He further concedes that the house or shed from the roof of
which the appellant produced these jewels was in the
occupation of one Murugan, and not of the appellant. It is
further not controverted that the house from which the
clothes, referred to in Circumstance 10, were recovered, is
in the joint occupation of the appellant and others. The
argument is that the very facts that these jewels (M.o. 2
and M.o. 3) and the clothes were found by the Serologist to
be stained with human blood, and were produced by the
appellant before the Police Inspector (P.W. 34), coupled
with the other Circumstances, including the confession, Ex.
P-27, were unmistakable pointers to the conclusion that the
appellant had participated in the murder of the deceased.
First, we will examine the contentions canvassed on
both sides in regard to the confessional statement, Ex. P-27
187
A comparison of the memorandum, Ex. P-28, recorded by
the Magistrate with the one prescribed by Section 164(3)
will show that the former (Ex. P-28) suffers from two patent
defects. Firstly, instead of certifying that he believed
that this confession (Ex. P-27) was voluntarily made, the
Magistrate has merely said: "I hope that this statement was
made by him voluntarily". Secondly, he omitted to certify
that ’this confession was taken in his presence and hearing,
and was read over to the person making it and it is admitted
by. him to be correct, and it contains a full and true
account of the statement made by him.’ The latter was
obviously a defect of form. In the case of the former, it
was open to the prosecution to show that the use or the word
’hope’ was merely due to an inadvertent error, although in
substance and reality, the Magistrate was fully satisfied
that the confession (Ex. P-27) was voluntarily made by the
accused. The best informed person who could explain whether
the use of the word "hope" in Ex. P-28, was inadvertent or
deliberate, was the Magistrate who recorded it. Although the
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Magistrate was examined as a witness (P.W. 28) at the trial
yet no attempt was made by the prosecution to establish from
his word of mouth that the use of the word ’hope’ by him was
inadvertent or accidental. In the witness-box, also, the
Magistrate did not go whole hog to vouch for the
voluntariness of the confession. He did not go further than
saying that on February 8, 1974, when he repeated the
warning to the accused, the latter was found "in a position"
to give a voluntary statement. To say that the accused was
"in a position" or mood to give a voluntary statement, falls
far short of vouching that upon questioning the accused, he
(Magistrate) had "reason to believe that the confession is
being voluntarily made"? which under Section l G4 is a sine
qua non for the exercise of jurisdiction to record the
confession. But that Section does not make it obligatory for
the Magistrate to append at the end of the record the
preliminary questioning, a certificate as to the anticipated
voluntariness of the confession about to be recorded. But
the law does peremptorily require that after recording the
confession of the accused, the Magistrate must append at the
foot of the record a memorandum certifying that he believed
that the confession was voluntarily made. The reason for
requiring compliance with this mandatory requirement at the
close of the recording of the confession, appears to be that
it is only after hearing the confession and observing the
demeanour of the person making it, that the Magistrate is in
the best position to append the requisite memorandum
certifying the voluntariness of the confession made before
him. If, the Magistrate recording a confession of all
accused person produced before him in the course of police
investigation
188
does not, on the face of the record, certify in clear
categorical terms his satisfaction or belief as to the
voluntary nature of the confession recorded by him, nor
testifies orally, as to such satisfaction or belief, the
defect would be fatal to the admissibility and use of the
confession against the accused at the trial.
In the instant case, the Magistrate has no where in
tile record or the confession, certified his satisfaction or
belief about the voluntariness of the confession. In the
memorandum (Ex. P. 28) appended by him at the foot of the
confession, he has merely expressed a "hope" that the
confession was voluntarily made. Even in his oral evidence
at the trial, the Magistrate (P.W. 28) did not vouch for the
voluntariness or the confession. He did not say that the use
of the word "hope" by him in the memorandum (Ex. P. 28) was
due to some accidental slip or heedless error. P.W. 28 is a
Sub-Divisional Magistrate and a member of the Judicial
service. He is supposed to be a judicial officer of standing
and experience. The memorandum, Ex. P. 28, is in English,
and in the handwriting of the Magistrate. It is, therefore,
not possible to hold that the Magistrate was ignorant of the
difference in the meaning of the words "hope" and "believe"
and that he unwittingly chose the former, while in reality,
he intended to express what was meant by the latter. There
is every probability that the use of the word "hope",
instead of "believe", in the memorandum, Ex. P. 28, by the
Magistrate was deliberate, and not inadvertent. There is a
marked difference in what is connoted by "hope" and
"believe". "to hope" means "to want and expect"; "to look
forward with expectation and desire". "Hope" is, a wishful
feeling floating on nebulous foams projected into the
unknown future. Deep hidden in "hope" dwells a lingering
doubt, a speck of suspicion, that what is desired and
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expected may not turn out true. Not unoften, in the mind of
the person hoping, there lurks subconscious fear that the
"hope" may turn out a "dupe". In contrast with it, the term
"believe", in that sense in which it is used in Section 164,
has ’logical confidence’ or ’rational conviction’ as its
essential element. It imports a very high degree of
expectation wrought by reason, a satisfaction fast-rooted in
terra firma, free from doubt as to the truth of the fact
perceived and believed.
In the light of the above discussion, we are of
opinion, that the Magistrate advisedly chose to use the word
"hope" instead of ’believe’, in the memorandum Ex. P-28,
because he was not fully convinced that the confession, Ex.
P-27, had been voluntarily made, the Magistrate’s mind being
troubled by suspicion and doubt as to the voluntariness of
the confession. The retracted confession, Ex. P-27,
therefore must be excluded from consideration.
189
We now turn to the remaining ten Circumstances. Out of
them, (circumstances 9 and 10 could connect the appellant
with some degree of certainty with the murder in question.
But, as rightly pointed out by Mr. Altaf Ahmad, some vital
factual components of these Circumstances which were
pointers towards the guilt of the appellant on the capital
charge, had not been established, and the learned Judges of
the High Court were in error in assuming their existence.
While setting out Circumstance 9, the High Court has
said that the jewels (M.O. 2 and M.O. 3 belonging to the
deceased) were recovered in pursuance of the statement (Ex.
P-27) made by A-1. Reference to Ex. P-27 is obviously wrong
because that Exhibit number has been given to the
confessional statement of A-l recorded by the Magistrate
(P.W. 28) on February 8, 1974, while these jewels are said
to have been recovered on January 31, 1974. Surprisingly
enough, the Sessions, Judge, also, had committed the same
mistake when he said: "M.O. 2 and M.O. 3 series which are
gold jewels belonging to Bushana Theshi were recovered at
the instance of A-l in pursuance of his confessional
statement marked P-27 before P. W. 34."
We have, with the aid of the counsel on both sides,
examined the record and find that no statement of A-l,
alleged to have been recorded under Section 27, Evidence Act
leading to the recovery of the jewels (M.O. 2 and M.O. 3),
was proved against him (A-l). The Police Inspector (P.W. 34)
testified at the trial that in pursuance of the confessional
statement (Ex. P-10), A-l took the police party to Kodayan
Kollai and produced the jewels (M.O. 2 and M.O. 3 series)
from the roof of Attukottaigai, where they were lying
covered in the Banian (M.O. 20). He seized these jewels
under the Memorandum (R-11) which was attested by P.W. 21.
We have examined Ex. P-10, dated 31-1-74. It is conspicuous
by the non-mention of anything relating to the jewels (M.O.
2 and M.O. 3). It refers only to certain clothes. In his
deposition, the Police Inspector (P.W. 34) did not reproduce
the substance of the statement alleged to have been made
before him by A-l in respect of these jewels. Nor has the
extract or the alleged confessional statement of the
appellant leading to the discovery of these jewels been
incorporated in the Memorandum (R-11). Thus the fact remains
that no confessional statement of A-l causing the recovery
of these jewels was proved under Section 7, Evidence Act.
The only component of Circumstance 9, that had been
established was that A-l led the police party to a hut in
the occupation of one Murugan and produced from the thatch
(roof) of that hut, the jewels (M.O. 1 and M.O. 2) and the
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Banian (M.O. 20),
190
and later the Serologist found human blood on these jewels.
In regard to this recovery, two facets of this Circumstance
and a related factor must be borne in behind. Firstly, it is
undisputed that the place of the recovery was not in the
control or occupation of the appellant. Secondly, this
recovery was made about 23 days after the murder. The third
factor to be taken into consideration in this connection is,
the charge, as originally laid against this appellant, was
that he had abetted by conspiracy, the murder committed by
A-2. Indeed, the trial Judge had found that A-2 alone had
murdered the deceased. He convicted A-2 for the substantive
offence under Section 302, Penal Code and A-l was made
vicariously liable for the act of A-2, and convicted under
Section 302 read with 120B I.P.C. The High (Court, however,
acquitted A-2 and altered the conviction of A-l to one under
Section 302 read with Section 34 I.P.C. In view of the first
facet, it is doubtful whether the recovery of the jewels can
be said to have been made from the exclusive possession or
control of the appellant. Even if it is assumed to be so,
then also the inference to be drawn from the recovery of
these jewels at the instance of the appellant, cannot in
view of the other two factors noted above, be legitimately
stretched to hold that he was a participant in the murder of
the deceased. The safest limit to which the inference can go
against the appellant is that he was only a receiver of
stolen property. The blood of these jewels is not sufficient
to establish unerringly the appellant’s complicity in the
murder, when it was the own case of the prosecution that A-2
murdered the deceased and removed the jewels from her body
and gave them to the appellant.
As regards Circumtances 10,, the prosecution case was
that after making the confessional statement (Ex. P-10) to
the Police Inspector (P.W. 34), A-l led the police party
into the house and produced P therefrom the blood-stained
sari (M.O. 1), a kaili (M.O. 2) belonging to the deceased
and the towel (M.O. 23) belonging to the appellant. These
articles were seized by P.W. 34 under the Mahazar (Ex. P-14)
n the presence of P.W. 21.
Mr. Atlaf Ahmad contends that there was reason to
suspect that the story of the recovery of these blood-
stained clothes of the deceased at the instance of the
appellant was a fabrication because firstly, these clothes
were found on the dead body of the deceased on January 7,
1974 and secondly, the appellant was not a lunatic to keep
these useless incriminating articles in his house for 23
days after the murder
We find merit in this contention. In the first place,
it is in the evidence of Sundarambal (P.W. 2), that when she
along with others went to see the dead body of the deceased
at the scene of occur-
191
rence, the sari and the jacket were on the dead body.
Secondly neither in the statement (Ex. P. 10), nor in the
Mahazar (Ex. P. 14) A is there any mention that these
clothes were found blood-stained. Thirdly, there is a
discrepancy between the Statement (Ex. P. 10) and the
Mahazar (Ex. P. 14), inasmuch as the former speaks of the
Sari of the deceased in addition to, the Kaili of the
deceased, and the towel, but in the Mahazar there is no
mention of the Sari, but only of the Kaili of the deceased.
Fourthly, it does not stand to reason that the appellant
would preserve and keep these worthless incriminating
articles in his house for 23 days after the murder.
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For these reasons, we think, Circumstance 10 was a
wholly untrustworthy piece of evidence. Circumstances 1 to 8
were not of a clinching character, and even in their
totality, they were too insufficient to bring home the
Capital Charge to the appellant, beyond doubt. Circumstance
8, by itself, could at best, lead to the inference that the
appellant was a receiver of the stolen property or the
thief.
In the light of all that has been said above, we set
aside the conviction and sentence of the appellant in
respect of the charge under section 302 read with Section
34, I.P.C. We maintain his conviction and sentence under
Section 379 I.P.C. The appeal is thus allowed to the extent
indicated above.
Before we part with this judgment, we will like to
place on record our appreciation of the valuable assistance
rendered to us by Mr Altaf Ahmad, Advocate, as amicus curiae
in this case.
N.V.K. Appeal allowed in part.
192