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1998(6) Supreme 82
Supreme Court of India
(From Madras High Court)
M.M. Punchhi, CJI & M. Srinivasan, J.
Kavita -Appellant
versus
State of Tamil Nadu -Respondent
Criminal Appeal No. 695 of 1992
Decided on 23-7-1998
Counsel for the Parties :
For the Appellant : M.A. Chinnaswamy, M.A. Krishnamoorthy and J.B. Ravi, Advocates.
For the Respondent : V.G. Pragasam, Advocate.
Held : PW 1 who claims to have witnessed the jumping of the appellant into the well did not inform the people in the village that he saw act of jumping. He had only informed them that he saw the body of a woman inside the well. In the Chief-Examination he deposed that he knew the appellant and her husband but in the cross-examination he admitted that he did not know either of them before the occurrence. (Para 6)
PW-1 and PW-2 deposed that from the village, PW-2, PW-3 and a woman by name Meera were the only persons to come to the place of occurrence when PW 1 informed the villagers that a woman’s body was found in the well. But PW 3 stated that several residents of the village went to the place of occurrence along with them. In Ex. P-1 also it was averred that several persons from the village went to the place of occurrence. If there were number of women at that place, normally the appellant would have been questioned by the women intimately and not by PWs 1 to 3 only. It is significant that no other person from the village or even Meera whose presence was admitted has been examined as a witness to prove the alleged extra judicial confession. (Para 7)
It is somewhat difficult to believe that the appellant was conscious when she was taken out of the well and she became unconscious immediately after making a statement of confession. On the other hand, the version of the appellant is that she was unconscious after she slipped into the well and she regained consciousness only in the hospital. That appears to be more probable. (Para 8)
A perusal of the evidence of PW 1 along with the statement in Ex. P-1 will lead to the inference that the appellant was unconscious when she was drawn out of the water. (Para 9)
There is no witness who had seen the appellant throwing her children into the well. The jumping of the appellant into the well is spoken to by PW 1 only and his versions are inconsistent. Thus there is nothing on record which will clinch that the appellant jumped into the well after throwing her children therein. (Para 10)
Held thus : The aforesaid circumstances are sufficient to shake the credibility of PWs 1 to 3 and the acceptability of their depositions. It follows that the so called extra judicial confession is not proved satisfactorily. The courts below are in error in accepting the same. (Para 11)
Held in additions : There is yet another relevant circumstance which has been overlooked by both the Courts. It is the evidence of PW 1 that he saw the body of the appellant’s son floating when he looked down into the well after seeing her jumping into it. According to the evidence, the body of the daughter of the appellant was not available till the next day. According to the prosecution the two children were thrown into the well and immediately thereafter the appellant jumped therein to commit suicide. If that is so, the body of the boy would also have sunk and it would not be floating when PW 1 looked into the well. It would have taken some hours before the body of the boy started floating. (Para 12)
Though the body of the son of the appellant was sent to the hospital on 13.1.85, the post mortem was admittedly done only on the next day. The reason for the delay is not available on record. The evidence of the doctor who performed the post mortem is not very clear as to how the body of the son could instantly float while the body of the daughter was fully sunk in the water. (Para 14)
Held consequently : In the facts and circumstances set out above, we are unable to uphold the conviction and sentence awarded to the appellant. We are of the opinion that the prosecution has not prove its case beyond reasonable doubt. The appellant is entitled to the benefit of doubt and consequently we set aside the judgments of both the Courts. The appeal is allowed and the appellant is acquitted. (Para 15)
(ii) Evidence Act, 1872-Extra judicial confession-Conviction based on it-Requirements-Caution.
Held : There is no doubt that convictions can be based on extra judicial confession but it is well settled that in that very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. (Para 4)
Judgment
Srinivasan, J.-The appellant was convicted by the Sessions Judge, Tirunelveli for offences under Section 302 and Section 309 IPC and sentenced to life imprisonment for the former and one year rigorous imprisonment for the latter. The conviction and sentence were confirmed on appeal by the High Court and aggrieved thereby, the appellant has preferred this appeal.
2. This case of the prosecution is as follows :
On 13.1.85 at about 8.00 AM when PW 1 went to answer call of nature, he saw the appellant jumping into a well situated nearby and when he ran to the well and looked down, he saw that the appellant was struggling for her life and a male child’s body was floating. He went to the village nearby and brought PW 2, PW-3 and one Meera to the place of occurrence. The three men went down the well and brought out the appellant. When questioned by them she replied that she could not withstand the daily torture at the hands of her husband and decided to bring an end to her life alongwith that of her children. The fire service people came and took out the body of the male child from the well. The appellant was taken to the hospital. PW 1 went to the police station and gave a complaint referring to the confession made by the appellant. The body of the daughter of the appellant was removed from the well next day. It was found that the two children died on account of asphyxia caused by drowning. The appellant and her husband were prosecuted. The latter was charged with an offence under Section 306 IPC.
3. The trial Court acquitted the appellant’s husband and convicted the appellant. The evidence of PWs 1 to 3 was relied on as proving the extra judicial confession alleged to have been made by the appellant. The case of the appellant that herself and her son slipped into the well when they were trying to wash their feet and her daughter got frightened and fell into the well was rejected. On appeal, the High Court has also placed strong reliance on the alleged extra judicial confession of the appellant and confirmed the conviction and sentence.
4. There is no doubt that convictions can be based on extra judicial confession but it is well settled that in that very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.
5. In the present case the Courts below have proceeded on the footing that PWs 1 to 3 had no motive to speak falsehood and their version that the appellant made a confession as soon as she was taken out of the well should be accepted as gospel truth. Unfortunately, both the courts have failed to take note of various circumstances which have a bearing on the acceptability of the evidence of PWs 1 to 3. The material discrepancies in their depositions and the inherent improbabilities have been completely ignored.
6. PW 1 who claims to have witnessed the jumping of the appellant into the well did not inform the people in the village that he saw act of jumping. He had only informed them that he saw the body of a woman inside the well. In the Chief-Examination he deposed that he knew the appellant and her husband but in the cross-examination he admitted that he did not know either of them before the occurrence. In the statement given by PW 1 at the police station which is marked as Ex. P-1 he had stated that as soon as the appellant was taken out of the well, he enquired from her as to where her daughter was. It is not known how he could have put that question to her when in the cross-examination he admitted that he did not know the appellant and her husband and he did not know as to how many children they had. PW 3 stated that he himself as well as PWs 1 and 2 were at the place of occurrenc
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