of Tamil Nadu Vs. Kutty @ Lakshmi Narasimhan  Insc 382 (10 August 2001)
S.N.Variva Thomas, J.
a dainty film actress of the South and her mother Indira Kumari were butchered
on an ill-fated morning fifteen years ago, in their own flat at Anna Nagar in Madras (now Chennai). Their driver,
watchman and cook were later caught and charge-sheeted by the police for the
said double murder. The trial court convicted all the three persons and
sentenced them to death. But a Division Bench of the High Court of Madras
acquitted two of them (the watchman and the cook) while altering the sentence
of the driver to imprisonment for life after confirming the conviction. That
person (A-1 Jebaraj) moved this Court for special leave to appeal but that
special leave petition was dismissed.
State of Tamil Nadu filed appeals against the acquittal
of the two persons (the watchman A-2 Lakshmi Narasimhan and the cook A-3 Ganeshan)
but the latter was not traced out in spite of repeated searches made for effecting
the service of notice on him. Finally this Court dismissed the appeal filed
against A-3 Ganeshan on 5.4.1999. Thus the appeal by special leave filed by the
State as against the watchman (A-2 Lakshmi Narasimhan @ Kutty) is now
dreadful end of the gamboling cine artist and her mother happened in the
following manner, as per the prosecution version: The mother and the daughter,
while living in their apartment at Anna Nagar, Chennai, wanted to employ a
driver, a watchman and a cook. They advertised it in the newspaper. A-2 Lakshmi
Narasimhan responded to the advertisement and he was eventually appointed as
the watchman of the residential apartment of the two ladies.
a few days A-1 Jebaraj was appointed as driver and later A-3 Ganeshan was
employed as a cook. The deceased were apparently wealthy and they had cash and jewellery
in good quantity. They negotiated for purchase of a house for about fifteen lakhs
of rupees. When A-1 Jebaraj overheard the said dialogue he presumed that the
ladies could be having the cash with them to buy the house. Then a wicked idea
burgeoned in his mind that he should grab the said cash in whatever manner
possible. He thought of killing the two ladies as an easier measure for
collecting the cash and jewellery. A-1 Jebaraj disclosed this idea to A-2 Lakshmi
Narasimhan @ Kutty and A-3 Ganeshan and sought their help to achieve the
target. All the three conspired together and orchestrated a plan to carry out
the operation of murdering the unarmed ladies and to share the booty among themselves
after accomplishing the murder. A-1 Jebaraj purchased three knives and kept one
with him and gave the other two to his co-conspirators.
morning of 15.10.1986 the three accused jointly executed the designed scheme of
killing both the ladies.
they killed the mother and when the daughter ran to see what was happening to
her mother she saw the very persons they employed for their security and help
turned out to be their slayers. They pounced on the damsel and killed her too
by stabbing her with knives. The killers removed quite a number of movables
from the house though they failed to trace out the huge cash stashed away by
the wealthy victims.
was arrested on 24.10.1986, A-2 Lakshmi Narasimhan was arrested on 3.11.1986.
As A-3 Ganeshan disappeared to unreachable places the police had to cast the
net far wide and tenaciously persisted to catch him.
delayed the police ultimately succeeded in 1988 to nab that absconding culprit.
Many articles, including valuables, were recovered at the behest of the
arrested persons. The confession of A-2 was recorded by a judicial magistrate
on 24.11.1986. A-3 also confessed to the magistrate which also was recorded
purportedly in terms of Section 164 of the Code of Criminal Procedure. However,
both of them retracted from the confessions during the trial of the case.
Nevertheless, the Sessions Judge relied on those confessions, among other
evidence, and reached the conclusion that the prosecution has proved the guilt
of the three accused beyond all reasonable doubt.
Judges of the Division Bench of the High Court while acquitting A-2 (Lakshmi Narasimhan)
found that the judicial confession was fraught with flaws and hence they did
not rely on the confession. According to the Division Bench, the materials
brought on record by the prosecution for corroborating the confessions were not
acceptable and the extra judicial confessions attributed to A-1 and spoken to
by PW-30 was frowned at by the High Court.
S. Balakrishnan, Senior Advocate who argued for the State contended that the
High Court approached prosecution evidence in a very pedantic manner and laboured
to find out the drawbacks in investigation and wrongly sidestepped the
confessions made by the accused persons.
advanced by the Division Bench, according to the learned senior counsel, are
totally unsustainable if not flippant. According to the learned counsel, the
extra judicial confession spoken to by PW-30 should have been acted on. He
contended that acquittal of the appellant resulted in a grave miscarriage of
K. Vishwanathan, learned counsel for A-2 Lakshmi Narasimhan addressed elaborate
arguments garnering as much force as possible. He pleaded for maintaining the order
of acquittal. He cautioned us by citing judicial precedents that the approach
of a court while dealing with an appeal against acquittal was always different
from an appeal against conviction. Learned counsel took pains to convince us
that apart from the inherent weakness of extra judicial confessions by the very
nature of that evidence, the testimony of PW-30 itself would show that the
confession spoken to by him as attributed to A-1 is a very fragile piece of
evidence. He also argued that recovery of the articles did not connect the
second accused, particularly in the light of the evidence of the independent
witnesses examined by the prosecution.
seems to be no dispute regarding the fact that Indira Kumari and her daughter Rani
Padmini were murdered in their apartment and quite possibly on the morning of
15.10.1986. We are skipping that aspect because prosecution has successfully
proved the involvement of A-1 Jebaraj with the murders of the two ladies as he
was convicted and sentenced for it by two courts after concurrently holding
that the prosecution has proved the case against him beyond all doubt and that
verdict became final. Hence the only question now, in this appeal, is whether
A-2 Lakshmi Narasimhan had also joined A-1 Jebaraj in murdering the two ladies.
confession recorded by the judicial magistrate as from A-2 cannot, for any
reason whatsoever, be used by us, it would be an exercise in futility for the
State to endeavour for reversal of the order of acquittal with the help of the remaining
evidence. So we would first consider and decide whether we can rely on that
judicial magistrate who recorded the confession of the second accused in
Ext.P-66 had written down the statement running into several pages containing
very many vivid details. The narration included how A-2 started working as a
watchman in the house of the deceased, how A-1 Jebaraj injected the idea of
taking away the huge amount of cash kept with the deceased, how the three
accused jointly prepared the plan to kill the two ladies to pave the way for
burglary and how they executed their designed scheme, etc.
Judges of the High Court declined to act on the said confession mainly for two
reasons. First is that the confession was retracted by the maker thereof and
second is that the recovery of articles was made prior to the confession. We
may state at the outset itself that both reasons are too insufficient for
over-ruling the confession.
not the law that once a confession was retracted the court should presume that
the confession is tainted.
matter of practical knowledge we can say that non- retracted confession is a
rarity in criminal cases. To retract from confession is the right of the
confessor and all the accused against whom confessions were produced by the
prosecution have invariably adopted that right. It would be injudicious to
jettison a judicial confession on the mere premise that its maker has retracted
from it. The court has a duty to evaluate the evidence concerning the confession
by looking at all aspects. The twin test of a confession is to ascertain
whether it was voluntary and true. Once those tests are found to be positive
the next endeavour is to see whether there is any other reason which stands in
the way of acting on it. Even for that, retraction of the confession is not the
ground to throw the confession overboard.
unable to understand how a judicial confession would become bad by reason of
the fact that articles belonging to the victims were recovered prior to the
making of the confession. That aspect, instead of vitiating the confession,
could be a factor in favour of the voluntariness of the confession. When the
culprit finds that the articles concealed by him are all disintered it is
possible that he might feel that there is no use in concealing the facts any
more. Then he may desire to make a clean breast of everything to any person or
present case, Shri K. Vishwanathan pointed out that A-2 Lakshmi Narasimhan was
in police custody for a long time i.e. from 3.11.1986 to 17.11.1986. Learned
counsel contended on its premise that A-2 would have been pressurised, if not
tortured, by the police to make the confession before the magistrate. This
contention is made by overlooking certain broad facts. During the time A-2 was
in police custody he was produced before the magistrate on three different
occasions (5th, 11th and 17th of November 1986). On none of those occasions did
A-2 tell the magistrate that he wanted to make a confession. If there was any
pressure on him to make a confession it would have been during the time when he
was in police custody. Why the police did not do on any of those three
occasions when he was produced before the magistrate from police custody would
tell heavily against the said contention of Mr. Vishwanathan.
17.11.1986 onwards A-2 was not in police custody as the magistrate remanded him
to judicial custody. It must be remembered that the confession was made by him
only on 24th November
1986. Before recording
the confession the magistrate asked him repeatedly whether he wished to make
the confession on his own or whether he was pressurised by the police, etc. In
this context it must be pointed out that the defence counsel have not pointed
any finger on the magisterial procedure adopted as precautionary measures
before the confession was recorded. Of course a very frail point has been
raised that the magistrate did not inform A-2 at the initial stage that he was
shows that A-2 was well aware that he was in the court of a magistrate. We
perused the preliminary questions and answers recorded by the magistrate. There
is no scope for any contention that A-2 was unaware that the person who
recorded the confession was a magistrate.
then contended that A-2 in his confession did not own that he also stabbed at
least one of the two deceased. That does not matter much, because a reading of
the confession as a whole leaves no doubt that A-2 has admitted the full length
role played by him in association with the other two assailants for murdering
the two ladies. Hence the very fact that he did not say in so many words that
he also inflicted one stab injury on the deceased is of no consequence. In a
way this aspect is a further assurance to us that his confession was not what
the police wanted him to say to the magistrate.
is no reason to think that A-2 had been prevailed upon by any extraneous
influence to make the confession. The judicial magistrate who heard the
confession certified that in his opinion the accused made the confession
voluntarily. That satisfaction could be disrupted only if there are sturdy
reasons. Even regarding the truthfulness of the version given by the accused in
the confession it is open to the court to ascertain whether there are other
materials to lend assurance to the court about the truth of it.
the items of evidence put forward by the prosecution for lending such assurance
is the judicial confession made by the third accused before the magistrate on
8.6.1988. Though the trial court acted on it as voluntary the High Court had
declined to do so. Learned counsel for second accused contended that the High
Court rejected the confession made by the third accused and acquitted the third
accused which remains undisturbed, though for other reasons. Hence he argued
that it is not proper for the Supreme Court to act on the confession made by
the third accused for the purpose of corroborating the confession of the second
accused. We feel that the said contention has some force. Hence we refrain from
using any part of the confession made by the third accused for the purpose of
corroboration of the confession made by the second accused.
extra judicial confession made by first accused to PW-30 is another material
which has been advanced by the learned senior counsel for the State for using
it as a corroborative piece. But that extra judicial confession is studded with
many infirmities, the most important among them is that PW-30 admitted that
while making the extra judicial confession A-1 was in a highly inebriated
condition. As we have no other material to gauge the level of his inebriation
at a time he made his confession to PW-30 we choose the safer course of not
using that confession as a piece of corroboration for the confession made by
the second accused.
there are quite a number of other circumstances which would lend assurance to
the court about the facts contained in the judicial confession made by the
second accused. The very fact that he was working as a watchman employed by the
ladies remains undisputed. If so, his disappearance from the scene on
16.10.1986 onwards and his absconding till 3.11.1986 are circumstances
effectively corroborating the confession. A large number of articles belonging
to the deceased were recovered at his instance.
finger impression was found on the door of the kitchen of the house. If the
finger impression of the cook was found on the door of the kitchen we would
have declined to use it as a piece of corroboration in the present case,
because of the role which a cook has to perform in the culinary wing of the
house. But the place of a watchman of the house is normally outside the house,
if not outside the gate of the compound itself. How could the finger impression
of the watchman get affixed inside the kitchen.
absence of any explanation as to how the finger impression of A-2 had appeared
on the door of the kitchen of the house we can safely treat that also as an
incriminating circumstance against that accused.
learned counsel contended that PW-30, who is cited to support the evidence of
recovery of articles from A-2, had in fact pointed out A-1 in the court as a
person from whom the articles were recovered. It seems that High Court was also
persuaded to give weight to the said contention. In our perception the said
contention has no force at all. PW-33 who attested the Memo prepared by the
investigating officer at the time of recovery cannot be given any special
credence while he disowned the very document he attested. Perhaps PW-33 would
have committed a mistake in the court when he stretched his index finger at the
accused, if it was not a mistake committed by the court itself while writing
down the deposition. It had escaped the notice of the Public Prosecutor.
Otherwise we have no reason to think that the Public Prosecutor would have
omitted to correct it, if not to declare the witness as hostile. As a matter of
fact A-1 could not have been present at all when MO.41 was recovered by the
investigating officer. At any rate, we are not inclined to give much importance
to an accidental error committed either by PW-33 or by the court regarding
mentioning A-1 instead of A-2 as the person connected with MO.41. We cannot
overlook the sturdy evidence of the investigating officer who effected the
recovery and that evidence is supported by the document contemporaneously
prepared by him and proved in the case.
upshot of the above discussion is that the High Court has gone seriously wrong
in interfering with the conviction passed by the trial court regarding A-2. We
are of the definite opinion that the High Court should not have sidelined
Ext.P-66 judicial confession.
result, we allow this appeal and set aside the order of acquittal passed by the
High Court and restore the order of conviction passed by the trial court.
However, we think that the lesser sentence of imprisonment for life is
sufficient to be imposed on A-2 for the offence under Section 302 read with
Section 34 of the IPC. Hence we sentence him so. We direct the trial court to
take prompt steps to get second accused (Lakshmi Narasimhan @ Kutty) and put
him back in jail for undergoing the sentence imposed on him now.