2001 Supreme(SC) 1076

2001(6) Supreme 49
SUPREME COURT OF INDIA
(From Madras High Court)
K.T. Thomas and S.N. Variava, JJ.
State of Tamil Nadu -Appellant
versus
Kutty @ Lakshmi Narasimhan -Respondent
Criminal Appeal No. 453 of 1991
Decided on 10-8-2001
Counsel for the Parties :
For the Appellant : Mr. S. Balakrishnan, Sr. Advocate, Mrs. Revathy Raghavan, Ms. Shweta Garg and Ms. Astha Tyagi, Advocates.
For the Respondent : Mr. K. Vishwanathan, Mr. K.V. Venkataraman, Mr. Ajit Mohan Singh, Mr. Atul Kr. Sinha for Mr. S.R. Setia, Advocates.

IMPORTANT POINT
High Court rejected Ex. P-66, judicial confession u/s 164 of Cr.P.C. 1973 by accused 2 (respondent herein) for wrong reasons. It is truthful and there are a number of other circumstances corroborating it. The acquittal of A2 is thus liable to be set aside. He is convicted u/s 302/34 IPC and sentenced to life imprisonment.

Headnote:(i) Criminal Procedure Code, 1973-Section 164-Judicial confession of A2 (respondent)-High Court rejected on two grounds one it has been retracted by the maker and 2nd recovery of (burgled) articles was made prior to confession-Whether sustainable in law? (No)-Confession after long police custody-Whether can be inferred to be involuntary or untrue (not in the facts of this case)-Whether non-mention of fact that he also stabbed at least one of the two deceased ladies pursuance to conspiracy absolve the confessions of his guilt? (No)-Later confession of A3 and extra judicial confession of A1 to PW 30 not relied on. (Para 17)

       Held : Learned 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 First is that the confession was retracted by the maker thereof and second is that the recovery of articles was made prior to the confession.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. It is not the law that once a confession was retracted the court should presume that the confession is tainted. As a 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. We are 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 authorities. (Paras 12, 13 & 14)

       Held also : There 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. (Para 18)

       (ii) Indian Penal Code, 1860-Sections 302/34-Offence under by 3 accused-A1, A2 and A3 convicted by Sessions Court-High Court upheld conviction of A1 but recorded acquittal of A2 and A3-Appeals against their acquittal by State-Appeal against A3 dismissed as not traceable-A2, a watchman, in collaboration with two accused murdered two ladies-His judicial confession Ex. P-66 rejected by High Court on wrong reasons-Sufficient material on record to lead assurance to Court that judicial confession of A2 (respondent) was true apart from judicial confession of A3 (not traceable for trial now), dated 8.6.88 and extra judicial confession of A1 (whose conviction is upheld by Courts below) to PW 30-Result-Acquittal set aside.

       Held (refraining from reliance on judicial confession of A3 and extra judicial confession by A1 to PW 30) : But 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. His 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. In the 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. Shri Vishwanathan, 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. The 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. (Paras 21, 22 & 23)

       Held finally : In the 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. (Para 24)