Kanda Padayachi Alias Kandaswamy Vs.
State of Tamil Nadu  INSC 222 (27 August 1971)
ROY, SUBIMAL CHANDRA
CITATION: 1972 AIR 66 1972 SCR (1) 450 1971
SCC (2) 641
Evidence Act (1 of 1872), ss. 21 and
26-Statement to doctor, admitting incriminating fact-Made by accused while in
police custody-If confession and hence irrelevant or relevant as admission.
The conviction of the appellant by the
Sessions Court for the offence of murder was confirmed by the High Court. The
evidence was circumstantial. One of the circumstances was a statement by the
appellant, while in police custody, to the doctor, which established the
presence of the appellant in the deceased's room at about the time: of death
and together with other circumstances, that he alone caused the death of the
On the question whether the statement was a
confession and hence irrelevant under s. 26 of the Evidence Act, 1872.
HELD : A confession has to be a direct
acknowledgement of the: guilt of the offence in question and such as would be
sufficient by itself for conviction. If it falls short of such a plenary
acknowledgement of guilt, it would not be a confession even though the
statement is of some incriminating fact which, taken along with other evidence,
tends to prove the guilt of the accused. Such a statement is only an admission
and not a confession. [454 F-G] Palvinder Kaur v. Punjab,  S.C.R. 94,
Faddi V. Madhya Pradesh,  6 S.C.R. 312 and A. Nagesia v. Bihar, A.I.R.
1966 S.C. 119, 123, followed.
Pakala Naravana Swami v. The King, 66 I.A.
Observations of Shah, J. in U.P. v. Deoman
Upadhyaya,  1 S.C.R. 14, 21, explained.
Queen Empress v. Nana, (1889) I.L.R. 14 Bom.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 19 of 1971.
Appeal from the judgment and order dated
April 29, 1970 of the Madras High Court in Criminal Appeal No. 861 of 1969 and
Referred Trial No. 69 of 1969.
S. K. Gambhir, for the appellant.
A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. This appeal is against the judgment of the High Court of Madras by
which it confirmed the appellant's conviction under sec. 302 of the Indian
Penal Code and the sentence of death awarded to him. It is founded on a
certificate granted by the High Court under Art. 134(1)(c) of the Constitution.
451 At the material time the appellant, a
widower for some time, was living in village Valayamadevi near the house where
the deceased Natesa Padayachi and his wife Meenakshi (P.W. 1) used to reside.
In course of time the appellant and Meenakshi developed illicit intimacy. The
deceased Natesa was serving as a driver in a rice mill belonging to one
Sundaralingam Pillai and his son Guhan Pillai (P.W. 6). One afternoon the
deceased returned home a little earlier than usual and found his wife and the
appellant in a compromising position. A quarrel ensued between the deceased and
the appellant when the deceased warned the appellant against his coming to his
house. The appellant retorted that instead of quarreling with him the deceased
should control his wife.
To prevent the appellant visiting his
residence the appellant and his wife went to reside in a portion of a Chatram
belonging to his master. Enraged by this change of residence by the deceased,
the appellant demanded, through one Govindaraja (P.W. 2), that the deceased
should return to him the presents given by him to his wife. He repeated this
demand about two days prior to the date of the occurrence through Subharayan
(P.W. 5). On July 7, 1969, the appellant visited the house of the deceased, but
P.W. I scolded him, whereupon the appellant told her that she was talking to
him in that vain because of her husband, and that if he were to do away with
her husband she would not be able to withstand him.
On July 10, 1969, Meenakshi went to another
village to see the deceased's brother who was ailing. The appellant saw her and
her children going. At about 9.30 that night he was in the tea shop of P.W. 3
when he enquired if the deceased had returned home from the rice mill where he
Next morning P.W. 5 and P.W. 6 found Natesa
lying dead with cut injuries on his neck and other parts of his body.
Amongst the articles lying near him, there
was a towel which belonged, according to the prosecution, to the appellant.
The evidence was that the towel had a mark of
the washerman who used to wash the appellant's clothes. P.W. 6 lodged the first
information report at about 7.30 that morning very soon after he and P.W. 5 had
discovered the ghastly tragedy.
There was no direct evidence to establish as
to who was the assailant of Natesa. But the prosecution relied on
circumstantial evidence, namely, (1) that the appellant had a motive to do away
with the deceased as the deceased had come in the way between him and P.W. 1,
(2) that the appellant knew that P.W. I and her children had left the village
that morning and the deceased' would be alone in the house, (3) that the
appellant had made enquiries that night to find out if the deceased had
returned home from the rice mill. (4) that the towel M.O. 6 belonging to him
452 was found lying near the dead body of Natesa which was identified by the
washerman as belonging to him, (5) that when the appellant surrendered at the
police station his clothes M.O. 7 and 9 were found to have stains of human
blood, (6) discovery by the appellant of the aruval M.O. 1, (7) injuries on the
appellant, namely, an abrasion on his toe and multiple linear abrasions on his
right arm and chest, and (8) his statement to the Doctor (P.W. 8), to whom the
police took the appellant after his arrest, to the effect that it was the
deceased Natesa who at about midnight on July 10, 1969 had caused the injury on
his toe by biting him.
Both the Sessions Court and the High Court
accepted the evidence as to these circumstances and found that that evidence
clearly pointed out the appellant as the person who had caused Natesa's death,
and on that basis found the appellant guilty under sec. 302.
Counsel for the appellant raised two
contentions before us.
The first was that both the Sessions Judge
and the High Court had not properly construed important pieces of evidence and
had drawn inferences which were not warranted by the facts established by
evidence. The second, which was more substantial and requires consideration,
was that the statement made by the appellant before the Doctor (P.W. 8) that it
was the deceased who had caused the injury on his toe on the fatal night was
inadmissible under sec. 26 of the Evidence Act, 1872 as it was made whilst the
appellant was in the custody of the police.
On the first point, counsel took us to the
evidence of several witnesses including the medical evidence and tried to show
that the injuries on the deceased could not have been caused by a weapon like
the aruval, M.O. 1, discovered by the appellant. In our view, counsel was not
able to point out any misconstruction ,of evidence either by the Sessions Court
or by the High Court, Equally unsuccessful was his attempt to show that the injuries
on the deceased were not capable of being caused by a weapon such as the
aruval, M.O. 1. The evidence was clear and unambiguous and we find no reason
why it could not be accepted by the Sessions Court or the High Court. The
discovery of the towel belonging to the appellant near the dead body of Natesa
the next morning and his statement to the Doctor that it was the deceased who
had caused the injury on his toe were sufficient to clinch his presence in the
deceased's house at about midnight on July 10, 1969, a circumstance, together
with the rest of the circumstances, enough to establish a chain leading to the
conclusion that he was and could be the only person who had caused Natesa's
death. To those two circumstances must be added the 453 evidence as regards the
stains of human blood on his clothes at the time of his arrest. The first
contention raised by counsel. therefore, must fail.
As regards the second contention, we think
that on the strength of the decisions, both of the Privy Council and of this
Court, the High Court was right in its conclusion that the appellant's
statement before the Doctor was properly admitted in evidence and could be,
relied upon as an admission under sec. 21 of the Evidence Act, 1872. Nothing
was and could be found against the Doctor to prevent his evidence about the
statement made before him by the appellant from being accepted. The only
question, therefore, is whether the statement was inadmissible by reason of
Secs. 24 to 26 form a trio containing
safeguards against accused persons being coerced or induced to confess guilt.
Towards that end sec. 24 makes a confession
irrelevant in a criminal proceeding if it is made as a result of inducement,
threat or promise from a person in authority, and is sufficient to give an
accused person grounds to suppose that by making it he would gain any advantage
or avoid any evil in reference to the proceedings against him. Under sec. 25, a
confession made to a police officer under any circumstances is not admissible
in the evidence against him.
Sec. 26 provides next that no confession made
by a prisoner in custody even to a person other than a police officer is
admissible unless made in the immediate presence of a magistrate.
The expression 'confession' has not been
defined in the Evidence Act. But Stephen in his Digest of the Law of Evidence
defined it as an admission made at any time by a person charged with crime
stating or suggesting the inference,that he committed a crime. Straight J., in
R. v. Jagrup(1) and Chandawarkar, J., in R. v. Santya Bandhu (2 ) , however,
did not accept such a wide definition and gave a narrower meaning to the
expression 'confession' holding that only a statement which was a direct
acknowledgement of guilt would amount to confession and did not include merely
inculpatory admission which falls short of being admission of guilt.
The question as to the meaning of
'confession' was ultimately settled in 1939 by the Privy Council in Pakala
Naravana Swami v. The King Emperor(3) wherein at page 81 Lord Atkin laid down
that no statement containing selfexculpatory matter could amount to confession
if the exculpatory (1)I. L.R. 7 All. 646. (3) 66 I.A. 66.
(2) 4 Bom. L.R. 633.
454 statement was of some fact which if true
would negative the offence alleged to be confessed. He observed :
"Moreover, a confession must either
admit in terms the offence, or at any rate substantially all the facts which
constitute the office. An admission of a gravely incriminating fact, even a
conclusively incriminating fact, is not of itself a confession, e.g., an
admission that the accused is the owner of and was in recent possession of the
knife or revolver which caused death with no explanation of any other man's
possession. Some confusion appears to have been caused by the definition of
confession in art. 22 of Stephen's Digest of the Law of Evidence which defines
a confession as an admission made at any time by a person changed with crime
stating or suggesting the inference that he committed that crime. If the
surrounding articles are examined, it will be apparent that the learned author
after dealing with admissions generally is applying himself to admissions in
criminal cases, and for this purpose defines confessions so as to cover all
such admissions, in order to have a general term for use in the three following
articles :-confession secured by inducement, made upon oath, made under a
promise of secrecy. The definition is not contained in the Evidence Act, 1872;
and in that Act it would not be consistent with the natural use of language to
construe confession as a statement by an accused "suggesting the inference
that be committed" the crime." As held by the Privy Council, a
confession has to be a direct acknowledgement of the guilt of the offence in
question and such as would be sufficient by itself for conviction. If it falls
short of such a plenary acknowledgement of guilt it would not be a confession
even though the statement is of some incriminating fact which taken along with
other evidence tends to prove his guilt.
Such a statement is admission but not
confession. Such a definition was brought out by Chandawarkar, J. in R. v. Santya
Bandhu(1) by distinguishing a statement giving rise to an inference of guilt
and a statement directly admitting the crime in question.
In Palvinder Kaur v. Punjab(2), the statement
made by the accused was that she had placed her husband's dead body in a trunk
and had carried it in a jeep and thrown it into a well. But with regard to the
cause of death, the statement was that her husband had accidentally taken a
poisonous substance erroneously (1) 4 Bom. L. R. 633. (2)  S.C.R. 94.
455 thinking that to be a medicine. This
Court referred to Pakala, Naravana Swami's case(1) and the dictum of Lord Atkin
and held that a statement which contained selfexculpatory matter could not
amount to a confession if the exculpatory matter is of some fact which if true
would negative the offence alleged to be confessed. But the Court added that a
statement to be a confession must either admit in terms of the offence or at
any rate substantially all the facts which constitute the offence, and that an
admission of a gravely incriminating fact, even a conclusively incriminating
fact, is not of itself a confession. In Om Prakash v. U.P.(2), the appellant
was convicted under sec.
161 read with sec. 109 of the Penal Code. Two
statements made by him, Exs. P-3 and P-4, to the Assistant Agricultural
Engineer, Aligarh were relied upon as confessions of bribery having been given
by him to public servants and upon which the High Court had based his
conviction. This Court set aside the conviction holding that neither of the two
documents amounted to a plenary acknowledgement of the offence, that the
statements were capable of being construed as complaints by him of having been
cheated by the public servants named therein and that at best they might arouse
suspicion that he had bribed them.
In this conclusion, the Court approvingly
cited Pakala Naravana Swami's case(1) and relied on the meaning of the word
'confession' given therein by Lord' Atkin. In Faddi v. Madhya Pradesh(3), the
appellant filed a first information report on the basis of which the dead body
of his step son was recovered and three persons were arrested. As a result of
the investigation, however, the appellant was arrested.
and was sent up for trial which resulted in
his conviction and a sentence of death. In an appeal before this Court, he
contended that the first information report ought not to have been admitted by
reason of sec. 25 of the Evidence Act and sec. 162 of the Criminal Procedure
Code. The contention was rejected on the (,round that neither of the two
provisions barred the admissibility of the first information report as that
report was only an admission by the appellant of certain facts which had a bearing
on the question as to how and by whom the murder was committed and whether the
statement of the appellant in the Court denying the evidence of certain
prosecution witnesses was correct or not. Such admissions were admissible under
sec. 21 of the Evidence Act and as such could be proved against the accused.
It is true that in Queen-Empress v. Nana (4),
the Bombay High Court, following Stephen's definition of confession, held' that
a statement suggesting the inference that the prisoner had' (1) 66 I.A.66. (3)
(1964) 6 S.C.R. 312.
(2) A.I.R. 1960 S.C. 409. (4) (1889) I.L.R.
14 Bom. 260.
456 committed the crime would amount to
confession. Such a definition would not longer be accepted in the light of
Pakala Naravatia Swami's case(1) and the approval of that decision by this
Court in Palvinder Kaur's case(2). In U.P. v. Deoman Upadhyaya(3), .Shah, J.
(as he then was) referred to a confession as a statement made by a person
"stating or suggesting the inference that he .had committed a crime".
From that isolated observation, it is
difficult to say.whether he widened the definition than the one given by the
Privy Council. But he did not include in the expression 'confession' an
admission of a fact, however incriminating, which by itself would not be enough
to prove the guilt of the crime in question, although it might, together with
the other evidence on record, lead to the conclusion of the guilt of the
accused person. In a later case of A. Nagesia v. Bihar (4) , Bachawat, J.,
after referring to Lord Atkin's observations in Pakala Naravana Swami's case(1)
and their approval in Palvinder Kaur's case (2 ) defined a confession as
"an admission of the offence by a person charged with the offence."
It is thus clear that an admission of a fact, however incriminating, but not by
itself establishing the guilt of the maker of such admission would not amount
to confession within the meaning of ss. 24 to 26 of the Evidence Act.
On the authority of these pronouncements by
this Court, it is 'clear that the statement in question did not amount to a
confession. It was an admission of a fact, no doubt, of an incriminating fact,
and which established the presence of the appellant in the deceased's room but
which clearly was not barred under sec. 26.
The Sessions Judge and the High Court were,
therefore, right in holding it to be admissible and in relying upon it.
In this view. councel's second contention
also fails and has to be rejected.
The appeal fails and is dismissed.
V.P.S. Appeal dismissed.
(1) 66 I.A.66.
(2) S. C. R. 94.
(3)  1 S.C.R. 14, at 21.
(4) A.I.R. 1966 S.C. 119, at 123.