IMPORTANT POINT
Communication is not a necessary ingredient to constitute confession.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court upholding the conviction of the appellant for the offence punishable under Sections 302, 321 and 201 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of life, nine months and nine months respectively and fine with default stipulation.

3. Background facts in a nutshell are as follows:

The accused Shiva Karam Payaswami Tewar was working in Hotel Premier run by the complainant Anthony Xavier at Dharavi, Mumbai-70. The accused was entrusted with the work of preparation of spices. Muttukumar (hereinafter referred to as the ‘deceased’) was working as a manager in the said hotel. Considering the nature of their work the accused as well as Muttukumar used to stay overnight in the hotel.

On 31.8.1995 in the evening complainant Anthony Xavier went to the Hotel Premier and after usual supervision and talk with manager at night he returned. At that time the accused as well as Muttukumar were in the hotel. On the next day morning i.e. on 1.9.1995 one Murugan Shetiya working in the hotel went to Anthony (PW-1) and told him that the hotel is open and Muttukumar and accused are not present in the hotel. He also informed that cash drawer was open and tape recorder was found missing. Naturally, complainant Anthony immediately went to the hotel. When he was making query, Arun Pujari, who was running Pan bidi shop near the hotel and taxi driver Suresh Kumar who often used to park his taxi near the hotel told him that accused met them at about 5.30 a.m., and made enquiry about the bus going to Bangalore. When complainant took survey of the hotel he found that cash box was open and tape recorder kept in the hotel was missing. There was no cash in the cash box. According to him on the previous night the manager i.e. deceased had informed him that on that day amount of Rs.3500/- was collected and the same was kept in the cash box. Report was lodged with the police and investigation was undertaken. Appellant was suspected to be the murderer.

After completion of investigation charge-sheet was filed. Since the accused pleaded innocence, trial was held. Though there was no direct evidence the Trial Court held that the circumstantial evidences adduced by the prosecution were sufficient. Particular reference was made to the extra- judicial confession made before PW-1. Accordingly, conviction was recorded by the Trial Court. Appellant filed appeal before the High Court which upheld the conviction.

Before the High Court the stand was that even if the extra judicial confession is accepted to be correct for the sake of argument, case under Section 302 IPC is not made out. The stand of the prosecution was that the extra-judicial confession clearly showed both the intention and the knowledge. Accordingly, the High Court dismissed the appeal. The stand taken before the High Court was reiterated by the parties. In addition, learned counsel for the appellant submitted that there was no pre-meditation and in the course of quarrel, a wooden log which was lying was picked up by the appellant in a heat of passion and assault was made. Only one blow was given and, therefore, Section 302 IPC, in any event, has no application. It was submitted that extra-judicial confession is a very weak piece of evidence and should not have been made the basis for conviction.

4. We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, Court has to satisfy itself that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is