1. This is an appeal against the judgment of the Principle Sessions Judge, Mysore Division, in Hassan Sessions Case No. 2 of 1949-50 convicting the appellant accused of an offence under Section 302, Penal Code, and sentencing him to death. A reference is also made under Section 374, Criminal P.C.
2. The prosecution case is that the accused, who is a coolie in what is known as Halekere Coffee Estate in Sakalespur Taluk murdered one Kunni alias Kunjapo. The motive for the offence is said to be that the accused's father-in-law refused to give the accused's wife's sister in marriage to him and that it had been settled that she had to marry Kunjapo.
3. The material witnesses, however, are his wife, father-in-law and other relatives who depose to the accused being angry on the refusal of his father-in-law and other relatives who depose to the accused being angry on the refusal of his father-in-law to give his wife's sister in marriage to him and to his having gone alone with Kunjapo holding a chopper, but returning alone in blood-stained clothes and with injuries on his left hand. The Coffee Planter P.W. 12 corroborates them on these points. He and P.Ws. 10, 16 to 18 state that the accused made a confession of his having killed Kunjapo. P.Ws. 12 to 15 state that the accused showed the dead body. P.W.8 and others say that the accused produced a chopper. P.W.4 is the Doctor who held post mortem examination over the dead body.
4. There is hardly any doubt, as is clear by the evidence of the Doctor P.W.4, that Kunjapo was brutally murdered, having been cut with a chopper across the front of the neck. The wound extended from ear to ear; all the tissues down to the vertebras had been cut and all the blood vessels on both sides of the neck had been severed. The point for consideration is whether it is the accused who caused this injury or not. The circumstances relied on for the prosecution to show that it is the accused who did so are, first the accused, who had taken to heart the refusal of his father-in-law to give his daughter Bikutti in marriage to him, having threatened that any man who marries her would not be in safety, secondly his having taken on the day of the incident Kunjaop with the chopper M.O. 4, thirdly his having send back his brother-in-law Mydu when he saw him following them, fourthly his having returned alone in blood-stained clothes with injuries in his left palm, fifthly his having produced the chopper which had been hidden in dry leaves under a tree, sixthly his having shown the dead body, and lastly his extra-judicial confession.
5. There is absolutely no reason to doubt the evidence of the close relatives of the accused on the first point. Apart from the evidence of the father-in-law of the accused, there is the evidence of his wife and other relatives on the point and there is no particular reason for disbelieving this evidence. The fact that at first he agreed to the girl marrying Kunjapo does not mean that he did not change his mind later. The Coffee Planter himself has deposed to the accused having asked him to induce his father-in-law to give his younger daughter in marriage to him and to his having refused to intervene in the matter. Accused's wife has stated that he left the place with Kunjapo, holding the chopper M.O. 4 and that he returned alone later. Then again, there is no reason to doubt the evidence of Mydu who says that he was following the accused and Kunjapo, just before the incident and that he had to get back as the accused asked him to do so. There is the evidence of other witnesses including that of the accused's wife to show that Mydu returned alone. That the accused had injuries on his left hand is spoken to by a number of witnesses including the Coffee Planter and the Maistry who applied medicine to the injuries. Moreover, there is the evidence of the Doctor P.W. 4, who has deposed to the existence of injuries on the palm of the left hand of the accused. The evidence of P.Ws. 8, 12, 13, 14 and 15 establishes that the accused produced the chopper which had been hidden in dry leaves under a tree. The fact that the accused showed the place where Kunjapo met his unfortunate death has been proved by the evidence of P.Ws. 8 and 12 to 17. Some discrepancy about the exact time at which the accused pointed out the dead body was relied on by the learned counsel for the accused. The Coffee Planter who says that it was 6-30 or 7 P.M. when the accused led them is more accurate about the time than the Patel who says that it was 8 or 9 P.M. then. It was raining as stated by the Coffee Planter and darkness in the coffee estate must have set in earlier than usual. It is evidently an account of this that the Patel thinks that it must have been 8 or 9 P.M. then. We do not think that any significance can be attached tot his discrepancy.
6. It may, therefore, be taken that the following facts are established beyond all reasonable doubt. The accused threatened that the person who marries his wife's sister would not be safe. When his father-in-law refused to give his daughter to him in marriage, he was moody, refused to take food in the house in which he lived with him and went to live in a separate house. on the afternoon of the next day, he sharpened a chopper, went with the deceased Kunjapo, sent back Mydu who was following them and later returned alone with injuries on his left band. His clothes were stained with blood. He showed the place where the dead body was found and he took out chopper M.O. 4 hidden in dry leaves under a tree. Before considering however the truth of the confession made before the Coffee Planter it is desirable to consider whether the confession was made to a person in authority due to any inducement, threat or promise and as such is irrelevant under Section 24, Evidence Act.
7. Section 24, Evidence Act, is as follows:
'A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.'
The section refers to a confession made by an accused person. It says that such a confession is irrelevant if it appears that it was made under certain circumstances. The circumstances which render the confession made by an accused irrelevant are as follows: first the confession must have been caused by inducement, threat or promise; secondly the inducement, threat or promise must have reference tot eh charge against the accused person, thirdly it must proceed from a person in authority; fourthly the inducement, threat or promise must be sufficient in the opinion of the Court to give the accused person grounds to suppose that by making the confession he would gain an advantage or avoid an evil of a temporal nature with reference to the proceedings against him.
8. The first point for consideration is when it can be said that the man who made the confession is an accused person. Can it be said that, if a person makes a confession before a complaint is made and investigation begins, it is a confession made by an accused person within the meaning of Section 24, Evidence Act. As observed in the Full Bench decision, Santhoki Beldar v. Emperor, 12 Pat, 241: (A.I.R. (20) 1933 Pat. 149 : 34 Cr. L.J.349 F.B.):
'When a person states that he has done certain acts which amount to an offence he accuses himself of committing the offence and the statement is, therefore, a confession by an accused person within the meaning of Section 24.'
In this case the confession was made before a report was made to the Police and before he was accused of an offence by others. All the same it has to be noticed that the confession must be regarded as one made by an accused, with in the meaning of Section 24, Evidence Act.
9. The next point that deserves consideration is the word 'appears' in Section 24. A confession is irrelevant if it appears to have been caused by any inducement, threat or promise, as stated in Section 24. Section 3, Evidence Act, makes it clear that
'a fact is said to be proved when after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought to, under the circumstances of the particular case, act upon such probability.'
It may be added that while for proof in civil proceedings a preponderance of probability is sufficient, the persuasion of guilt must, in criminal cases, amount to
'such a moral certainty as convinces minds of the tribunal as reasonable men beyond all reasonable doubt' (R.V. Sterne cited with approval in the commentary on Evidence Act by Woodroff and Ameer Ali).
It has however to be stated that Section 24 does not contemplate such strict proof as is required by Section 3, for holding that the confession was caused by inducement, threat or promise. As observed in Queen-Empress v. Basvantha, 25 Bom. 168 at P. 172: (2 Bom. L.R. 761).
'The use of the word 'appears' indicates, it may be aruged, a lesser degree of probability than would be necessary if 'proof' had been required. The Court might perhaps in a particular case fairly hesitate to say that it was proved that the confession had been unlawfully obtained and yet might be in a position to say that such appeared to it to have been the case.'
As observed in Ashothosh v. Emperor, 68 I.C. 413. (A.I.R.(8) 1921 Cal. 458 : 23 Cr. L.J. 573).
'If in the circumstances of a case it appears to the Court that there is reason to suspect that a confession was obtained by inducement so as to bring it under the provisions of Section 24, Evidence Act, the prosecution, to make the confession admissible in evidence against the accused, must show that it was freely made.'
It may be added that the decision in Biraj Mohan v. Abani Kanta : AIR1938Cal610 also supports this view. This is the principle laid down in Reg. v. Warringham, 2 D.N.C.C. 447n, a decision which has been cited with approval in a number of cases in the High Courts of India on different aspects of the provisions of Section 24, Evidence Act.
9a. Before considering in this case whether the confession appears to have been caused by any inducement, threat or promise it has to be considered when it could be said that it was caused by an inducement, threat or promise. A large number of cases have considered this aspect, but it is sufficient to observe that the Court must in each case consider from the circumstances of that case to see whether the confession was due to inducement, threat or promise. In Reg. v. Navroji Dadbhai, 9 BOM. H.C.R.358, the words 'you had better pay the money than go to jail' were held to be sufficient to constitute inducement. In R. v. Thomas (1834) 6 C. & P. 353: (172 E.R. 1273), it was held that words 'you had better split and not suffer for all of them' amount to threat, inducement or promise. As observed by Erle J. in R. v. Garner, (1849) 2 C. & K. 920: (18 L.J.M.C.1).
'It does not turn upon what may have been the precise words used; but in such case whatever the words used may be, it is for the Judge to consider, before he admits or rejects the evidence, whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime, or worse for him if he does not.'
10. In this case the coffee planter P.W. 12 to whom the confession is said to have been made states:
'The accused advanced towards me. I asked him to search for Kunjapo as otherwise it would be ^d'V*to him. Accused held my legs. I pulled him up by the shirt and asked him to utter ^lR;*. He said he would utter ^lR;* and that he must be saved ^dkikMosdan*. I said yes. He said he had cut him, I spoke to him in Thulu and he gave the reply in Thulu'.
From the above statement, it could be seen that this is clearly a case in which the confession appears to have been induced both by threat and by a promise. It has to be added that before Section 24, Evidence Act, could apply, inducement, threat or promise must have reference to the charge against the accused person, and that it must be sufficient in the opinion of the Court to give the accused person grounds for supposing that by making the confession he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. In Empress of India v. Mohan Lal, 4 ALL. 46: (1881 A.W.N. 84)), a confession made by accused M and K to panchayatdars who were enquiring into the matter in order to outcast the accused, was held not inadmissible as the members of the panchayathi were not in authority over M and K within the meaning of that section nor was there any threat made having reference to any charge against them. In this case it is clear that if the coffee planter can be said to be a person in authority, the inducement, threat and promise made by him, is with reference to the charge of murder under consideration, and it is such as was clearly sufficient for the accused to have supposed that he would gain an advantage and avoid an evil with reference to the proceedings against him. This is so as the coffee planter made it clear that it would be difficult for the accused if he did not confess and promised to save him in case be confessed.
11. It may be noticed here that the advantage to be gained and the evil to be avoided must be of a temporal nature. If for instance the accused is told that it would be better for him to tell the truth, either on moral grounds or on spiritual grounds, it cannot be said that the accused had reason to suppose that by making the confession he would gain any advantage or avoid any evil of a temporal nature. It may be added that even if a confession was made on medical grounds it cannot be said that the confession was made to avoid an evil or gain an advantage with reference to the criminal proceedings against him. It was held in Emperor v. Mohomed Buksh, 8 BOM. L.R. 507: (4 Cr. L.J. 49), with reference to a confession made to a Medical Officer :
'that the Medical Officer was not a person in authority in respect of any proceedings which might be contemplated or taken against the accused who made the confession to him; and that all that he represented to the accused was that on medical grounds it would be for the accused's benefit if he told the truth as to how he came by the wound.'
In this case, however, it is clear that the evil to be avoided or advantage to be gained by making the confession was of a temporal nature.
12. The remaining point for consideration in this case is whether the coffee planter to whom the confession was made could be said to be a person in authority within the meaning of the words as used in Section 24, Evidence Act. This aspect requires careful consideration as there are some decisions which hold that a person in authority merely on the ground that the man making the confession was subordinate to him or merely on the ground that the person was a man of some authority in the locality in which he lives. This evidently is not what is intended in Section 24, as inducement, threat or promise proceeding from the person in authority must be such as to make the accused person suppose that he would gain any advantage or avoid any evil with reference to the proceedings against him. Whatever may be the position in life of such a person it cannot be said that he has such authority as to enable him to interfere in the criminal proceedings against the person making the confession to him unless he is able to influence those proceedings. It is again the case, R. v. Warringham, 2. D.N.C. C. 447n that is relied on in number of cases for guidance on this point also. The expression a 'person in authority' is familiar in English Law, and it is in that limited sense that the expression is used in Section 24, Evidence Act. As observed in Reg v. Navroji Dadbhai, 9 BOM. H.C.R. 358,
'the test would seem to be, had the person authority to interfere with the matter and any concern or interest in it would appear to be held sufficient to give him that authority as in the Queen v. Warringham, 2 D.N.C.C. 447n. where Parke Baron held that the wife on one of the prosecutors and concerned int he management of their business was a person in authority; and we find the rule so laid down in Archibold's Criminal Practice.'
It is no doubt true that in some cases, persons who are neither complainants nor persons who are acting for them are regarded as persons in authority within the meaning of the expression as used in Section 24, Evidence Act. The decisions in Emperor v. Ganesh Chandra, A.I.R. (10) 1923 Cal. 458:(24 Cr. L.J. 760), Emperor v. Harpiari : AIR1926All737 and Kunja Subudhi v. Emperor, A.I.R. (16) 1929 Pat. 275 : (30 Cr. L.J. 675), have held that a collecting punch, an assistant punch and a Mukhia were persons in authority within the meaning of Section 24, Evidence Act, though it is not clear from those cases that the persons had any power of control or interference in the criminal proceedings against the accused. In Bhojo v. Emperor, A.I.R. (21) 1934 Sind. 172 : (36 Cr. L.J. 223), it was held that the Mukhias to whom the confession was made by the accused in that case were not persons in authority. The above decisions were distinguished on the ground that there must have been in those cases some circumstances which made those punches or Mukhias persons in authority, but that the Mukhia in that case was not shown to be a person who can control or interfere in reference to the prosecution. In Bhagabati Charan v. Emperor : AIR1933Cal644 , it was held:
'that some kind of inducement was held out by the investigating postal superior officer to his subordinate which had the effect of inducting him to make a confession of his guilt and that the confession was inadmissible.'
It will be noticed that as observed in that case,
'Niladrinath Mukherji, who was an Inspector charged with the duty of investigating certain complaints, which were sent to the post office with regard to the package in question',
was the person to whom the confession was made. It is, therefore, clearly a case in which the person to whom the confession was made could be conceived by the person making the confession as a person able to influence the criminal proceedings against him. In the decision reported in Gunga Prosad v. Emperor : AIR1945Cal360 , it was also held that the confession made to a supervisor, Post Raid Information Service, was inadmissible as it was made by inducement by a person in authority. This however does not mean that if a person has no authority in relation to any proceedings against the accused it could be said that the confession made to him under any circumstance could be inadmissible. In Emperor v. Mahomed Buksh, 8 Bom. L.R. 507 : (4 Cr. L.J. 49).
'The accused made their confession of guilt to the Commissioned Officer of their Regiment, who stated to the accused that he had already obtained information from another person and promised secrecy if they told the truth: Held the Company Officer was not shown to be a person in authority in relation to any proceedings that were to be taken against him; and that the alleged deception and inducement were covered by the provisions of Section 29, Evidence Act, 1872.'
There are a number of decisions on the point. It is, however, sufficient to rely on the Full Bench decision in Santokhi Beldar v. Emperor, 12 Pat. 241 : (A.I.R. (20) 1933 Pat. 149 : 34 Cr. L.J. 349 F.B.) in which it was observed as follows:
'The words 'person in authority' occurring in Section 24, Evidence Act, 1872, have reference to a person who has authority to interfere in the matter under enquiry as, for example, a person engaged in the apprehension, detention or prosecution of the accused, or who is empowered to examine him. The section excludes a confession procured by inducement, threat or promise having reference to the charge, only when the inducement, threat or promise sufficient to give the accused person reasonable grounds for supposing that by making it he will gain any advantage or avoid any evil in reference to the proceedings against him. When the inducement, etc., is by a person who has no power to interfere in the matter under inquiry it is not reasonable for the accused to suppose that he will benefit by confessing.
Where an extra judicial confession was made to a Tahsildar who was a person of some influence in the village but had no interest in the prosecution of the accused other than the interest which every citizen has in the maintenance of law and order, and the confession was made in consequence of question put, and a promise made by him.
Held: that the Tahsildar not being a person empowered to examine the accused or one who could legitimately influence the course of proceedings, the confession was not excluded by Section 24.'
13. In this case, whatever authority the coffee planter may have in his estate, it cannot be said, that apart from the interest he has like any other citizen in the maintenance of law and order and as such in reporting the matter to the police, he has such authority as could make the accused suppose that he could interfere in the criminal proceedings against him. As held in the above decision he being not a person who could have influenced the criminal proceedings, the confession made to him is not one that is excluded by Section 24, Evidence Act.
14. As regards the question whether the confession was really made to the coffee planter as has been sworn to be him and other witnesses, there is hardly any doubt about the truth of what these witnesses say. The learned counsel Mr. D.M. Chandrasekhar who argued the case on behalf of the accused with marked ability both on points of law and facts, pointed to, what he referred to as variations in the versions given by the different witnesses about the confession. The fact that one witnesses refers to the accused having demonstrated how the neck of Kunjappi was cut, and the fact that another witness refers to the coffee planter having demonstrated the same when telling other persons what the accused said to him, are not inconsistent, though some witnesses refer only to be demonstration made by one and other witnesses refer only to the demonstration made by the other. No substantial variations could be said to have been pointed out, and such small differences in the versions as might be found in evidence recorded after a long time after the incident are inevitable in all cases however true. There can be hardly any doubt therefore about the truth of the accused having made a confession to the coffee planter in the presence of other witnesses.
15. As regards the Courts acting on confessions which are retracted, it has to be stated that as observed in Ramappa v. Government of Mysore, 39 Mys. H.C.R. 320,
'though extra-judicial confessions have to be received with care and caution, there is not reason why they should not be believed when they are clear, consistent and convincing.'
The decision in 17 Mys. L.J. 491 makes it clear that it would however be safe not to act on retracted confessions unless the confession is corroborated by other evidence circumstantial or otherwise. As observed in Kunja Subudhi v. Emperor, A.I.R. (16) 1929 Pat. 275 : (30 Cr. L.J. 675).
In a proper case a Court may act upon retracted confession alone, but the rule of prudence and safety is to require generally that such confessions should be corroborated in material particulars by some reliable evidence before an accused person is convicted.'
In this case apart from the fact that the accused sent away his brother-in-law, who was following him and the deceased and the fact that the accused returned later on without the deceased, there is the hard fact that there were blood-stains in his clothes which he took care to get washed immediately. Moreover, there were injuries were due to his pulling a creeper looks at first not to be improbable; but the evidence of the doctor discloses that the injuries on the left hand are all incise wounds. This shows that he had something to do with a sharp instrument after he went with the deceased and before he returned alone. The circumstances justify the conclusion arrived at by the learned Sessions Judge that the accused murdered Kunjapo.
16. It was pointed out that the learned Sessions Judge had not put him questions about the confession but has relied on it without doing so. Questions are however intended to be put to enable the accused to explain the important points against him and are not intended to be put to him for obtaining admissions. Too many questions on unimportant points might end in the Judge unconsciously forcing the accused to make damaging statements. While the accused must have an opportunity to explain the main points against him the questions put by Court should never tend towards cross-examination. The failure to put a question cannot always be construed to have prejudiced the accused so long as he had an opportunity to explain the points against him. In this case, when one reads the number of questions put and answers elicited by the learned Sessions Judge, it cannot be said that he is one who would omit to put a question even on a minor point if it remained unexplained. In answer to the last question the accused stated:
'One Wednesday by 4.30 P.M. my wife came to me and told me that Kunjappi is not to be seen and they are searching him. I also went to find him out. I hade gone nearly two furlongs when I heard some noise as 'Coo' towards my left side. I went there to see what it was. There, I found Sowcar and others. Sowcar was enquiring persons whether they saw Kunjappi. They replied no. Sowcar then, asked me. I also replied that I did not see him. Then Sowcar talking in 'Thulu' language told me that some one had murdered Kunjappi in Shekdar's forest, the charge might be levelled against me, unless I act up to his words. I told him as to how is it possible to take the guilt on me. He then assured me that I need not be anxious about it and he is there to look after. The Sowcar then made a gesture in his hand as if to cut something and showed me that I had done the deed. My father-in-law then fell down, I was caught hold of and taken. I repeated the words which the Sowcar had asked me to say.'
It is clear that the accused has denied having made a confession, by saying that he repeated the words which the Sowcar had asked him to say. In the light of this it cannot be said that any other question was necessary to be put. I might add that it was observed in 39 Mys. H.C.R. 320, as follows:
'All that is obligatory on the Court under Section 342, Criminal P.C. is to question the accused generally on the case after the witnesses for the prosecution have been examined and before the accused is called on for his defence. A formal question in general terms like 'what is your defence' gives the accused an opportunity of making a statement with his own lips and is thus a sufficient compliance with the mandatory provisions of the section. And such a formal compliance with the section is in the interest of the accused when he is represented by a counsel who can offer explanations on behalf of the accused in the way most favourable and least dangerous to him.'
There is thus no substance in the contention that no question was put to the accused regarding the confession.
17. The confession of the accused that it is he who killed Kunjapo is corroborated by a large number of facts referred to already. We feel, therefore, no doubt that the accused was rightly convicted of an offence under Section 302, Penal Code, and the conviction is therefore upheld. The question of sentence is next to be considered. There do not appear in this case, from the evidence on record, any circumstances for awarding a punishment other than the capital sentence which the accused in the cases of this kind generally deserve. But it has to be stated that there is not direct evidence as to what happened when the accused and deceased Kunjapo were alone, though there is hardly any doubt that it is the accused who killed Kunjapo. It looks however from the incised wounds on four fingers of the left hand of the accused that at one time or the other, the handle of a sharp instrument must have been held by Kunjapo and the accused was possibly avoiding a blow by holding his hand with his right hand and trying to wrest the sharp weapon from the clutches of Kunjapo by the left hand; otherwise it is difficult to understand how the injuries with a sharp instrument have been caused on the fingers of the left hand of the accused at the time of the incident. Anyway though it is clear that it was the accused who murdered Kunjapo and it cannot be said that there are materials for making out a case for the accused of his having acted in self-defence, this being the case of none, it is possible that Kunjapo had the upper hand and at one stage might have attempted to assault the accused.
18. In the circumstances we think that the ends of justice would be met by altering the sentence of death awarded by the learned Sessions Judge to one of transportation for life, and we do order accordingly. Except for this alteration in the sentence, the appeal stands dismissed.
19. We cannot avoid noticing the perfunctory manner in which the case has been dealt with in the lower Court. Special care ought to be taken in murder cases and that is why provision is made for appointment of a standing counsel for the accused to safeguard his interest. This does not mean that the purpose is served by the standing counsel making a show of defence by putting some formal questions in cross-examination. He should study the records of the committal Court and take every care that inadmissible evidence is excluded. The Public Prosecutor himself should take care that no such evidence is let in. Moreover, there is the primary duty of the Court itself to see that the evidence which is not admissible is excluded. In this case a good deal of what the witnesses have heard is allowed to be recorded in evidence. What P.W. 21 Palliamma has, for instance, deposed is mainly hearsay. The accused's wife is allowed to say what her husband told her, though this offends the provisions of Section 122, Evidence Act. It will be further noticed that the main point for consideration in this case is whether the confession made to the owner of the coffee estate in which the accused is working as a cooly is affected by Section 24, Evidence Act. No consideration is given to this aspect of the matter. Recording of the evidence is not happy, and it is hoped that better attention will be given to these matters in cases of this kind, at any rate, by the learned Sessions Judge.
20. Sentence altered.