1996(1) ALL MR 36
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.R. MAJITHIA AND VISHNU SAHAI, JJ.
Dhedya Bajya Valvi. Vs The State Of Maharashtra.
Criminal Appeal No.6 of 1994
19th July, 1995
Petitioner Counsel: Mr.VINAY P.NAVARE
Respondent Counsel: Mrs.S.G.PATIL
(A) Evidence Act (1872) S.24 - Confession - Is not defined in the Act - Judicial interpretation of the term requires that it must in terms admit the offence or at any rate substantially all the facts which constitute the offence. AIR 1939 P.C.47 and 1953 SCJ 545 Referred. (Para 9)
(B) Evidence Act (1872) S.24 - Extra-judicial confession - Meaning of - Extra judicial confession if found to be voluntary is sufficient proof of guilt - Corroboration though not strictly necessary some corroborative support is ordinarily insisted upon. AIR 1959 SC 902, AIR 1977 SC 2274, AIR 1985 SC 48, Rel. on. (Para 9)
(C) Evidence Act (1872) S.24 - Extra-judicial confession - It is not the law that extra judicial confession can only be made to a person in authority. AIR 1988 SC 1705 (1707) Explained.
(D) Evidence Act (1872) S.24 - Extra-judicial confession - Recovery of stones with human blood of group other than that of accused - Medical evidence that death could be caused with those stones - Held circumstantial evidence corroborated extra judicial conviction and finding of guilt could be recorded on that basis. (Para 10)
AIR 1939 P.C. 47 [Para 9]
1953 S.C.J 545 [Para 9]
AIR 1959 S.C. 902 [Para 9]
AIR 1977 S.C. 2274 [Para 9]
AIR 1985 S.C. 48 [Para 9]
1975 (1) S.C.R. 165 [Para 9]
(AIR 1974 S.C. 1545) [Para 9]
1975 (1) S.C.R. 747
(AIR 1975 S.C. 258) [Para 9]
1965 (3) S.C.R. 86
(AIR 1966 S.C. 40) [Para 9]
1978 (1) S.C.R. 597 (AIR 1977 S.C. 2274) [Para 9]
AIR 1988 S.C. 1705 [Para 9]
AIR 1968 S.C. 647 [Para 9]
MAJITHIA, J. : The appellant, aggrieved against the judgment and order dated November 1, 1993 passed by the Additional Sessions Judge, Nandurbar, in Sessions Case No.44 of 1992, convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for one month, has come up in appeal to this Court.
One Bajya is a resident of village Mothi Kadvan in Mavapur taluka. He has two sons, namely, Lakhu and the accused-appellant - Dhodya, and three daughters, namely, Tara, Chamari and Jaynubai. Sakaribai, widow of the deceased Ishwar, is the daughter of Chamaribai.
Bajya had partitioned his agricultural land long time back. He allotted 13 acres of land to each of his sons. He gave 3 1/2 acres of land to his daughters. His sons were residing separately from him. Bajya and his wife were being looked after by Sakaribai and her husband. Sakaribai, along with her husband, was living in village Mothi Kadavan for the last about 10 years. Sakaribai's husband, Ishwar, was cultivating the land in the possession of Bajya on crop-share basis.
The appellant had divorced his wife long time back and had leased out the agricultural land which fell in his share in the family partition. He was working in Gujarat State and was moving from place to place.
Bajya had given 5 acres of land to Sakaribai out of love and affection and for services rendered by her to him and his wife.
A few days prior to the incident, the appellant came to his ancestral village and made grievance about the allotment of 5 acres of land to Sakaribai. He apprehended that Sakaribai and her husband Ishwar might grab the land of his father which was under their cultivation on crop-share basis. He asked Sakaribai and her husband to leave the village.
The land in possession of Bajya is at some distance from his house in the village. At the time of the incident, there was water - melon crop in his field. Two huts were erected by Sakaribai and her husband in the field, to protect the crop, out of which one hut was in possession of Sakaribai and her husband and the other in possession of her mother Chamaribai and her husband.
On January 18, 1992, Sakaribai had gone to Nandurbar in the morning to sell fire wood. She returned to the house in the village in the evening at about 5.00 p.m. She prepared food and thereafter she proceeded toward the hut in the field. She met her husband on the way. They went together to the field. In the meantime, the appellant also came in the field. The appellant and Ishwar (husband of Sakaribai) had meals together in the hut. The appellant intended to go to Bardoli in Gujarat State in the night and he requested to provide some food for carrying with him. He was to leave for Bardoli by railway train. The railway station Khatgaon was situate at a distance of 3 km. from the village. The train was to arrive at Khatgaon railway station at about 4.00 a.m. In the night at about 9.00 p.m., after taking meals, the appellant asked Ishwar to accompany him to reach him at the railway station. Ishwar agreed and both of them left the field for the railway station. Sakaribai and her mother were in the field for the whole of the night. Ishwar did not return from the railway station during the night. In the morning, Sakaribai went to the house in the village. The house is at a distance of 1 km. from the field. She found that the appellant was sitting with Noora Fulji at his house around fire to warm himself. She enquired from the appellant about her husband. He told her that Ishwar was murdered by him by assaulting him on head and face by stone under a mango tree in the field of Shega Katodya in the night. Sakaribai went to the house of one Pachya and along with him went to the house of Police Patil, Noorji, and disclosed to him the information received by her from the appellant. The Police Patil came to the house of Noora Fulji and found that the appellant was sitting there. He also made enquiries from the appellant and he was informed that he had caused the death of Ishwar under a mango tree in the field of Shega Katodya by using a stone. When the appellant gave the information to the Police Patil, Sakaribai, Pachya and Raijya were present there. In view of the confession made by the appellant, the Police Patil brought him to his house and tied him with a rope. In order to confirm the information about the murder of Ishwar, the Police Patil Pachya, Sakaribai and Raijya went to the field of Shega Katodya and found that the dead body of Ishwar was lying under a mango tree and two stones having blood were lying there. There was also blood on the bark of the mango tree. They returned to the village and thereafter went to police station of Visarwadi to lodge report. Report (Ex.20) was lodged on January 19, 1992 at 9.45 a.m.
The Police Station Officer, Shinde, immediately left for the place of occurrence. He prepared the inquest panchanama and the spot panchanama, Exs.11 and 12 respectively. The body of the deceased was sent for autopsy to Rural Hospital, Navapur. He arrested the appellant. He seized the shirt of sky blue colour with checks thereon, which was on the person of the appellant. The shirt had blood stains on the sleeves and the shoulder. The investigating officer also got prepared a map of the place of occurrence from the Circle Inspector. On the same date - January 19, 1992 -, he recorded statements of Chamaribai, Noorji - the Police Patil, Raijya, Noora Fulji, and others. On January 20, 1992, he recorded statement of one Ishwar Jiva Gavit before whom the appellant had made extra-judicial confession. He seized the clothes of the deceased, of the appellant, bark of mango tree, the stones having blood from the scene of offence. The attached articles were sent to the Chemical Analyser for report.
The investigating officer had also forwarded the stones seized from the place of occurrence to the Medical Officer, Rural Hospital, Navapur, (vide Ex.32), for opinion whether the injuries on the person of the deceased could be caused by the stones and whether these injuries could cause the death of the deceased. The Medical Officer opined that the injuries on the body of the deceased could be caused by the stones and that the injuries could cause the death of the deceased.
3. On completion of the investigation, the investigating officer filed the charge-sheet in the Court of the Judicial Magistrate, First Class, Navapur, who committed the case to the Court of Session as the offence was exclusively triable by that Court.
5. The prosecution, in order to sustain the charge, relied upon the evidence of PW 1 - Sakaibai, the widow of the deceased Ishwar. She gave the details of the events which led to the incident. She deposed regarding allotment of land by her maternal grandfather to her for love and affection and services rendered by her to him. She further deposed that her maternal uncle Dhedya, the appellant, asked her husband Ishwar to reach him at the railway station. The appellant and Ishwar left at about 9.00 p.m. Ishwar did not return to the hut during the night. The following morning, she saw the appellant sitting in the house of Noora Fulji by the side of fire. The relevant portion of her statement in examination-in-chief reads thus :-
"2. ... ... Near the house of Noora Fulji, I saw that the accused Dhedya, was sitting. Noora was also sitting, by his side. They were sitting around the fire to warm themselves. When I made enquiries from Dhedya about the whereabouts of my husband, the accused Dhedya told me that he was murdered by him. When I made enquiry, as to at which place he murdered my husband, he told me that, under a mango tree, in the field of Shega Katodya, my husband was murdered by assaulting him, by stone. I, thereafter, went to the house of Pachya Havshya, who is my maternal uncle, in distant relation. Then I went to police patil. Pachya was also with me. I had informed about the murder of my husband, to Pachya. I reported to the police patil Noorji and he also accompanied us. When police patil came to Noora Fulji and Dhedya, both were sitting at the same place. One Raiju, had taken the accused Dhedya to the house of police patil and thereafter he was tied, at the house of police patil. The police patil, had also made enquiry, from the accused, as to whether really he had committed murder of Ishwar and he had answered in affirmative. He had said to police patil, that he had caused death of Ishwar. Thereafter, from the house of police patil, we went to the place, where my husband was murdered, as per information given by Dhedya. Police Patil, Pachya, Raiju, were also with me.
3. The dead body of my husband was found under the Mango tree, in the field of Shega Katodya. We found that the head and face of my husband was being crushed by stone. Thereafter I, police patil and Pachya, went to P.S.Visarwadi, to lodge the report. I had reported the incident to police, it was accordingly recorded. My thumb impression was obtained on it. The report now shown to me is the same, it bears my thumb impression. It is at Ex.20. "
7. PW 6 - Ishwar Jiva Gavit - deals in liquor. He deposed that the appellant came to his house during the night of the incident and told him that he had caused the death of Ishwar. The appellant asked him for liquor and the witness provided him with a bottle of liquor and a glass. It will be useful to reproduce the statement of PW 6 in extenso which is as under :-
"1. I know the accused Dhedya. I am possessing land in between "Lahan Kadvan" and "Mothi Kadvan" villages. The accused is possessing land adjoining my land. The land possessed by the accused, is in cultivation of Bharat Tetya. Mohan Nimji Gavit is my co-brother. He had been to my house as my guest. We had taken meal together and went to bed. I was sleeping inside the house, with my wife and children. Mohan was sleeping on a cot, outside, in front of my house. At about 2.00 a.m. in the night Dhedya came to my house and gave a call to me. On hearing the calls, Mohan got up and he gave a call to me, that somebody was giving call to me. I got up and came outside and found that Dhedya was there. There is electricity in my house and the light was on. He told me that he has caused the death of Ishwar of Mothikadvan. The accused Dhedya had demanded liquor from me and I provided a bottle full of liquor and a glass to him. He had consumed one glass of liquor and was saying that he has murdered Ishwar.
Court question : Whether there were any stains on the clothes of the accused?
Ans . The accused was having a shirt on his person. There were blood stains on sleeves and on shoulder.
He had given a note of Rs.50/- to me. After deducting Rs.10/- on account of liquor, I returned 40 Rs. to him. I asked him to leave the place thereafter. He had then left. I went to sleep thereafter. In the morning, I and my co-brother went to road side. I noticed that some persons from Mothi Kadvan were coming and were weeping - and I came to know that really Dhedya had caused death of Ishwar.
2. Cross-exam by Mr.Pandit, Advocate, for accused :-
The accused had taken away the bottle as well as the glass with him. It is true that I am dealing in liquor. It is not true that the accused Dhedya had not come to my house in the night, had not demanded liquor from me, had not said anything to me. It is not true that I am deposing false. I have sweared and I am not deposing false. It is not true that I have deposed false on say of police, as I am selling liquor illegally."
PW 6 is an independent witness. He was cross-examined but nothing was elicited therefore, even to cast the remotest doubt about his evidence in examination-in-chief. His evidence is natural, coherent, consistent and rings true.
The investigating officer had seized stones from the spot, having blood stains, which were sent to the Chemical Analyser. The Chemical Analyser in his report, Ex.17, opined that the stones, Article 1 and Article 2, contained human blood of 'O' group. The appellant had 'A' blood group. The blood group found on the stones was different from that of the appellant.
The learned trial Judge, relying upon the evidence of extra-judicial confession, corroborated by the circumstantial evidence dilated upon in the earlier part of the judgment, came to the conclusion that the prosecution had firmly established the guilt of the appellant.
The Indian Evidence Act contains no definition of 'confession'. Judicially it is interpreted that a confession must in terms admit the offence or at any rate substantially all the facts which constitute the offence. (See in this connection AIR 1939 PC 47 and 1953 SCJ 545,)
In this country the law of confession is codified. The substantive law is contained in Sections 24 to 30 of the Evidence Act, while adjunctive law is found in Sections 163, 164, 364, 533 of the Code of Criminal Procedure. Sections 24 to 26 lay down when confessions are not relevant, i.e. provable, while Sections 27 to 29 are limitations to their operation. Section 24 excludes confessions obtained by inducement, etc. Section 25 bars all confessions made to police officers under any circumstances, whether voluntary or involuntary, while Section 26 shuts out confessions made in police custody, except those made in the presence of a Magistrate.
A confession may be oral or documentary. Confessions may be divided into two classes : Judicial and extra-judicial. A judicial confession is that which is made before the Magistrate or in Court, in the due course of legal proceedings, e.g. that recorded under Sections 164 and 364 of the Code of Criminal Procedure. A confession which is neither made to a Magistrate nor in the course of legal proceedings is an extra-judicial confession.
A confession can be accepted only if it is voluntary as well as true. An extra-judicial confession, if proved to be voluntary and genuine, is legal and sufficient proof of the guilt of the accused without corroboration. But ordinarily the practice is to require some support for a confession.
In Mulk Raj v. State of U.P., AIR 1959 Supreme Court 902, the Apex Court held thus :-
" . . . An extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given."
To the same effect is the ratio of the judgment of the Apex Court in Piara Singh v. State of Punjab. AIR 1977 Supreme Court 2274, wherein the Apex Court held thus :-
" Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty (sic) (cartridge?) from the place of occurrence."
The principle of law enunciated in Piara Singh's case was reiterated in State of U.P. v. M.K.Anthony, AIR 1985 Supreme Court 48, observing thus :-
"15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. (See Jagta v. State of Haryana (1975) 1 SCR 165 at P.170 : (AIR 1974 SC 1545 at P.1548) and State of Punjab v. Bhajan Singh (1975) 1 SCR 747 at P.751: (AIR 1975 SC 258 at P.261). In Sahoo v. State of U.P.(1965)3 SCR 86 : (AIR 1966 SC 40), it was held that'an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime'. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot, be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However in Pyara Singh v. State of Punjab (1978) 1 SCR 597 : (AIR 1977 SC 2274), this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
The Apex Court relying upon the evidence of the witness who spoke about the extra-judicial confession, set aside the order of acquittal passed by the High Court and restored the order of the Sessions Judge but on the question of sentence, awarded life imprisonment.
In Makhan Singh v. State of Punjab, AIR 1988 SC 1705, the Apex Court had an occasion to deal with extra-judicial confession. In this case, the facts were as under :-
The appellant before the Apex Court was the only son of his father Banta Singh. The appellant had one son, Seva Singh, who was crippled, from his first wife (since deceased). The appellant's father owned 4-5 killas of land where a tube well was also installed by the side of a small kotha where the appellant's father along with his grandson Seva Singh used to live away from the house where the appellant resided. The appellant's father along with his grandson used to render services at their village Gurudwara. A day prior to Amavasya of Chet 1985 (May 1985), when the appellant's father and his grandson along with one Nihal Singh were rendering services at the Gurudwara at about 5.00 p.m., the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would come from Fazilka and would go to Amritsar to take the holy bath. On this representation, the appellant took his father and his son from the Gurudwara. On the same day at about 10.00 p.m. when Nihal Singh was proceeding to his field for guarding his tubewell he met the appellant on the way and found carrying dang with him. The appellant was questioned by Nihal Singh as to why he was there and why did not go to Amritsar. The appellant replied that his father and son had gone to Amritsar in a truck of Car Seva. Nihal Singh did not see for some time the appellant's father and son. He felt suspicious and lodged a report dated August 10, 1985 in Police Station Mamdot.
The Sub-Inspector of Police who recorded the statement of Nihal Singh - the informant - visited the house of the appellant who, it was alleged, was not present. On August 13, 1985, the appellant was stated to have made extra-judicial confession to one Amrik Singh and Amrik Singh produced the appellant before the police. On August 15, 1985, a memorandum under Section 27 of the Evidence Act was recorded by the investigating officer at the instance of the appellant and later the dead bodies of the father and son of the appellant were recovered from a field. The dead bodies were identified by Channan Singh who was a panch witness.
The trial Court convicted the appellant. The circumstances which were found against him were : (i) Last seen with the deceased at the Gurudwara by Nihal Singh, (ii) Extra-Judicial confession made to Amrik Singh, (iii) The statement under Section 27 leading to discovery of dead bodies, and (iv) recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant.
Before the Apex Court it was contended that the reason for making the extra-judicial confession to Amrik Singh was not justifiable. Amrik Singh had stated that the appellant had told him that as the police was after him, he had come and confessed the guilt so that he may not be unnecessarily harassed. It was pointed out before the Supreme Court that there is nothing to indicate that this Amrik Singh was a person having some influence with the police or a person of some status to protect the appellant from harassment. The counsel for the State conceded before the Apex Court that extra-judicial confession is a very weak piece of evidence. It was in the light of these submissions that the Apex Court observed thus :-
"11. On 10 August, 1985 FIR was lodged by Nihal Singh (PW-2) and on 13.8.85 the appellant went to Amrik Singh (PW-3) to make an extra judicial confession. Amrik Singh says that the appellant told him that as the Police was after him he had come and confessed the fact so that he might not be unnecessarily harassed. There is nothing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harassment. In his cross-examination he admits that he is neither the Lumbardar or Sarpanch nor a person who is frequently visiting the Police Station. He further admits that when he produced the appellant there was a crowd of 10 to 12 persons. There is no other corroborative evidence about the extra judicial confession. As rightly conceded by the learned counsel for the State that extra judicial confession is a very weak piece of evidence and is hardly of any consequence. The counsel, however, mainly relied on motive, the evidence of last seen, the evidence of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son."
The Supreme Court did not lay down as a matter of law that an extra-judicial confession could only be made to a person in authority or to a person who could render some help to the person making it. The Apex Court did not rely upon the evidence of the witness to whom the extra-judicial confession was made for numerous reasons. The reasons for discarding the evidence cannot be construed to mean as laying down as a matter of law that extra-judicial confession can only be made to a person in authority. The Apex Court did not record a dissenting note to the law laid down in the cases of Mulk Raj and A.K.Anthony, referred supra. A close examination of these cases indicates that the Apex Court has firmly laid down that if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. A statement made on a point of law by a counsel will not mean that the same was correct.
In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 Supreme Court 647, the Apex Court held that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it. The Apex Court approved the following observations of Earl of Halsbury LC in Quinn v. Leathem, 1901 AC 495 :-
" Now, before discussing the case of Allen v. Flood, (1898) A.C.1, and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
After approving the above observations, the Apex Court observed thus :-
" A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it."
10. We have found the evidence of extra-judicial confession credible and trustworthy. Conviction can be founded on it. In the instant case, circumstantial evidence, viz. recovery of stones besmeared with human blood of group other than that of the appellant from the spot, and the medical evidence that the fatal injuries to the deceased could be caused with these stones, corroborates the evidence of extra-judicial confession. The trial Judge rightly recorded a finding of guilt relying upon this evidence.