Chandran Vs. State of Tamil Nadu
 INSC 132 (16 August 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1978 AIR 1574 1979 SCR (1) 176 1978
SCC (4) 90
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
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
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 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 un-often in the mind of the person hoping, there lurks 177
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
[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,
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 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:- 178 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 179
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 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
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
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 180 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 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 181 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
deep sea 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
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 182
two bangles of M.O. 3 series from the roof of a thatch in 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
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 recorded. 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 record 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
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 183 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 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
"(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.
"(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
(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
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
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 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
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
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 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 nowhere
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 expected may not turn out true. Not un-often, 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
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 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
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
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.
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.