Shiva Karam Payaswami Tewar vs State Of Maharashtra

Shiva Karam Payaswami Tewari ...Appellant

Versus

State of Maharashtra ...Respondent

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

2 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

3 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 material to show animosity, Court has to

proceed cautiously and find out whether confession just like any other

evidence depends on veracity of witness to whom it is made. It is not

invariable that the Court should not accept such evidence if actual words as

4 claimed to have been spoken are not reproduced and the substance is given.

It will depend on circumstance of the case. If substance itself is sufficient to

prove culpability and there is no ambiguity about import of the statement

made by accused, evidence can be acted upon even though substance and

not actual words have been stated. Human mind is not a tape recorder which

records what has been spoken word by word. The witness should be able to

say as nearly as possible actual words spoken by the accused. That would

rule out possibility of erroneous interpretation of any ambiguous statement.

If word by word repetition of statement of the case is insisted upon, more

often than not evidentiary value of extra judicial confession has to be

thrown out as unreliable and not useful. That cannot be a requirement in

law. There can be some persons who have a good memory and may be able

to repost exact words and there may he many who are possessed of normal

memory and do so. It is for the Court to judge credibility of the witness's

capacity and thereafter to decide whether his or her evidence has to be

accepted or not. If Court believes witnesses before whom confession is

made and is satisfied that confession was voluntary basing on such

evidence, conviction can be founded. Such confession should be clear,

specific and unambiguous.

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5. The expression `confession' is not defined in the Evidence Act,

`Confession' is a statement made by an accused which must either admit in

terms the offence, or at any rate substantially all the facts which constitute

the offence. The dictionary meaning of the word `statement' is "act of

stating; that which is stated; a formal account, declaration of facts etc." The

word `statement' includes both oral and written statement. Communication

to another is not however an essential component to constitute a `statement'.

An accused might have been over-heard uttering to himself or saying to his

wife or any other person in confidence. He might have also uttered

something in soliloquy. He might also keep a note in writing. All the

aforesaid nevertheless constitute a statement. It such statement is an

admission of guilt, it would amount to a confession whether it is

communicated to another or not. This very question came up for

consideration before this Court in Sahoo v. State of Uttar Pradesh, AIR

1966 SC 40: (1966 Cr1 U 68). After referring to some passages written by

well known authors on the "Law of Evidence" Subba Rao, J. (as he then

was) held that "communication is not a necessary ingredient to constitute

confession". In paragraph 5 of the judgment, this Court held as follows:

...Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The

6 probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission pr confession. as the case may be.... If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt

(Emphasis supplied)

6. The extra-judicial confession purported to have been made before

PW1 reads as follows:

"He was brought to the hotel in a taxi. In enquired with the accd. what he did to Muttukumar. The accd. disclosed that he and Muttukumar got up at about 4.30 a.m. and while he was preparing spices there was quarrel between them; and as a result of the quarrel he had hit Muttukumar with a wooden log used for cutting vegetables and Muttukumar had died of the injuries sustained during the assault."

7. In the instant case the extra-judicial confession is believable as rightly

done by the Trial Court and the High Court. The same not was made to a

stranger but to a friend. Therefore, the Trial Court and the High Court have

rightly acted upon the extra-judicial confession. At the same time the

7 background in which the assault has been made clearly shows that Section

302 IPC has no application. The assault was made in the course of sudden

quarrel without pre-meditation. The accused was not armed at the relevant

point of time. Even according to prosecution he picked up the wooden log

which was lying there and made the assault.

8. That being the position, we alter the conviction to Section 304 Part II

IPC. Custodial sentence of 8 years would meet the ends of justice. The

appeal is allowed to the aforesaid extent.

9. We record our appreciation for the able manner in which Mr. Nirmal

Chopra, Amicus Curiae, assisted the Court.

.........................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (ASOK KUMAR GANGULY)

New Delhi, January 21, 2009

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