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In Re: Dharamartapu Papiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1964CriLJ584
AppellantIn Re: Dharamartapu Papiah and ors.
Excerpt:
.....compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 16 respectively) after having administered the necessary warnings to them and satisfied himself that the confessions were voluntary. we thought that it would be better to do away with him. the weight to be attached to it must depend upon whether the court thinks that it was induced by the consideration that the confession was untrue, or by realization that it had failed to secure the benefits the hope of which inspired it. after giving them a day's time for reflection, and being satisfied that the statements were voluntary, p. we have no hesitation in i agreeing with the learned trial judge that the confessions were perfectly voluntary. 2) was..........is my elder brother. he has taken away three tolas of gold of mine. my husband asked for that gold. apparao was bout to beat my husband. my husband saying that he would give divorce to me went away. i asked apparao to give me my gold. he said that he would not give the gold. last year, my younger sister's betrothal had taken place. her 'two tolas of gold was pledged by my younger brother papayya and my elder brother apparao for rs. 120/- for cultivation expenses. my younger sister's 'athavaru' came to invite us for the marriage of my younger sister. we asked apparaa -to redeem the gold. he said that he would not redeem it as he had no money. my younger brother papayya (a, 1) and paramma (a. 2) raised a loan of rs. 120/- and redeemed that gold and adorned the girl. we took the girl.....
Judgment:

Krishnarao, J.

1. These appeals arise out of the judgment of the Additional Sessions Judge, Srikakulam sentencing the 1st accused Dharamarapu Papiah to imprisonment for life Under Section 302, I, P. C. and accused 2 and 3, Dharamarapu Paramma and Naupadu Mutyalu, to imprisonment for life Under Section 302, IPC read with Section 34, IPC for the murder of one Dharamarapu Apparao, at about midnight on 12-5-1960. The deceased was the 1st accused's elder brother and the 3rd accused their sister. The and accused was related to them as a grand-mother. The case for the prosecution is briefly that a quarrel took place between the deceased on the one hand and accused 1 to 3 on the other at about 7-30 P.M. on 12-5-60, and that while the deceased was fast asleep at about midnight on a mattress in front of his house, the 2nd accused held his head and the 3rd accused held his legs and the 1st accused cut his neck, with a knife (M. O. 1). The learned Additional Sessions Judge disbelieved the only direct witness to the murder, P. W. 6 Pydi Appalasuri, and rightly as it appears to us, because P. W. 6's conduct was inconsistent with his having witnessed the crime. He came forward to speak to it only after an unnatural delay. The learned trial judge based the convictions entirely on the retracted confessions mane by each of the accused on 24-5-60 before the Judicial Second Class Magistrate, Srikakulam (P. W. 7), which have been marked as Exs. P. 14, P. 15 and P. 16. Accused 1, 2 and 3 have separately appealed from jail. In their appeal petitions, it is alleged or suggested by accused 1 and 3 that as there was illicit intimacy between the deceased and P. W, 6's daughter, P. Ws. 4 to 6 and 12 committed the murder. The principal contention of the learned Counsel briefed by the State for the appellants is that there is independent corroboration for the retracted confessions.

2. The facts which led up to the occurrence are proved by P. Ws. 1 to 5. P. W. 1 is the deceased's wife, P. W. 2, is the deceased's mother and P. Ws. 3 to 5 are their neighbours. The deceased was the manager of his family and was living in the family house at the village of Mokha-lingam with P. Ws. 1 and 2 and the 1st accused. He was addicted to drink and wasteful habits. He utilised for himself three tolas of gold which belonged to his married sister, the 3rd accused. He also owed some amount to the and accused, hence there were quarrels between them, and in December, 1959, there was a partition between the 1st accused and the deceased with the help of P. Ws. 3 to 5 and other mediators. One portion of the family house was allotted to -the deceased and the other portion to the 1st accused. But as there was no separating wall, the deceased and P. W. 1 continued to live in the deceased's portion of the house and the 1st accused and P. W. 2 lived in the adjacent house of the znd accused. The marriage of the deceased's youngest sister, Ramulu, took place on 25-4-60. The deceased had pledged two tolas of gold which had been given to her by her father-in-law at the time of betrothal and also taken away one tola of gold and presents given to her at the time of her marriage. At about night meal time on 12-5-60, the deceased and accused 1 to 3 quarrelled over the gifts belonging to Ramulu. In the course of the quarrel, the deceased slapped the 2nd accused on her face and fisted the 3rd accused on her chest. P. W. 4 intervened and separated them. It was a moonlit night. After taking food, the deceased slept in the open space in front of his house and P. Ws. 1 and 2 slept on the pials of the house. Accused 1 to 3 slept at the adjacent house of the 2nd accused.

3. At about 4 A. M. on 13-5-60, the 2nd ac. cused woke up the deceased's mother (P. W. 2) and told her that the deceased had killed himself. P. W. 2 woke up P. W. 1 and also P. W. 5 and told them about the deceased's death. Meanwhile, the 2nd accused woke up P. Ws. 3 and 4. P. Ws. 3 to 5 who saw the dead body, came to the conclusion that the matter must be reported to the village Munsif. They asked P. Ws. 1 and 2 and accused 2 and 3 to do so but none of them moved. The 2nd accused requested them not to inform the village Munsif as the in j lines were self-inflicted and wanted to cremate the dead body. But P. Ws. 3 to 5 were adamant and went to the house of the village Munsif (P. W. n) at about 4-30 A. M. and informed him. P. W. 11 came to the scene and saw the dead body. He asked the accused and P. W. 1 to give statements, but they did not respond. He took P. Ws. 3 to 5 to his house and recorded their statements, Exs. P 2. P. 4 and P. 12. At about 8-30 A. M, P. W. it sent these statements and his printed report (Ex. P. 22) through a talayari to the Saravakota Police Station, which is about 15 miles off

4. The Head Constable (P. W. 13) received them at 5 P. M. and registered the case Under Section 302 Indian Penal Code against P. Ws. 1 and 2 and accused 1 and 2. He says that he omitted to include the 3rd accused by mistake. As the Sub-Inspector of Police was away, P. W. 13 sent him information and reached the village on cycle at 9-45 P. M. The Sub-Inspector (P. W. 14) arrived in the village at 11 P. M. and examined P., Ws. 1, 2 and 11 on the same night. On 14-5-1960, he held the inquest. He seized the 1st accused's dhoti (M. O. 6) and the 2nd accused's sari (M. O. 2) as they appeared to contain spots of blood. With the assistance of a barber (P. W. 12), he got the nails of accused I to 3 (M. Os. 11 to 15) clipped. The Circle Inspector (P. W. 15) came to the village at 10-30 A. M. on. 14-5-60, and took charge of the investigation. He arresjifed accused 1 to 3 at 5 P. M. When-questioned, the 1st accused stated that the knife was in the house (Ex. P-7) and produced the-: blood-stained knife (M. O. 1) from a corner of the 2nd accused's house (Ex. P. 8). On chemical examination, no blood-stains were detected on M. Os. 2 and 6 but M. O. 1 and the nail clippings of. accused 1 and 3 were found to be stained with, human blood.

5. The Medical Officer at Narsannapeta (P. W. 8) conducted the autopsy over the deceased' body at 7 a. m. on 15-5-60. He found two incised wounds on the neck and the left shoulder,. which in his opinion, could never have been self, inflicted and could have been caused by one blow. The death was due to shock and haemorrhage and would have been instantaneous.

6. On or about 16-5-60, all the three accused were remanded to judicial custody. On 24-5.60, the Judicial Second Class Magistrate of Srikaku-lam (P. W. 7) recorded their confessions (Exs. P.T4. P. 15 and P. 16 respectively) after having administered the necessary warnings to them and satisfied himself that the confessions were voluntary. It may be useful to read these confessions.

Ex. P. 14:

Confessional statement of the 1st accused recorded by the J. S. C. Magistrate, Srikakulam on 24-5-60.Before Pongal, we, the two brothers became-divided in Status. Dharmarapu Apparao, is my own elder brother, I, my elder sister, my younger sister, and my mother were living in the house of my grand-mother. Apparao has taken away our property, our money and our gold. He has taken away the three tolas of gold of my elder sister. My brother-in-law questioned Apparao. Apparao-denied having received any gold. My brother-in-law beat and scolded my elder sister and sent her away and did not take. He has taken away three tolas of gold of my grand-mother. He has also-taken away four hundred rupees of my grand-mo, their. Two months ago our younger sister's marriage was performed. At the time of betrothal she-was given two tolas of gold for our joint cultivation. At the time of marriage her 'Athavaru' demanded that gold. I asked Apparao to give-money. He said he had no money. I and Param-ma (A. 2) redeemed that gold. We redeemed it for-Rs. 85/-. We gave back that gold to our sister. Myself, my younger sister, my elder brother, my elder sister all went for the marriage. Apparao-had no money. My grand-mother financed him. At the time of marriage, we got an amount of Rs. 63/- by way of 'Idulu' (gift and presents). One tola of gold was also given as earnest money. Apparao has taken away that one tola of gold and the sum of Rs. 63/-. I raised dispute before Pydi Mukhalingam (P. W. 5) on last Thursday, Mukhalingam said that he would settle the dispute-in the evening. I and Apparao returned home. In the evening of Thursday Apparao raised a quarrel. He beat my younger sister. He dealt two-blows to my grand-mother holding her heir. We-demanded him that money. He beat us. Them Pydi Chandrayya (P. W. 4) and Pydi Mukhalingam (P. W. 5) chastised and dispersed us. Having been vexed, my grand-mother Paramma, (A. 2), my younger sister Naupada Mutyalu (A. 3) and myself decided to kill him that night, Apparao was sleeping in the front yard of his house. My grand-.mother held his head. My younger sister Napalm Muthalu (A. 3) held his legs. J cut off the neck of Apparao with knife. When the police asked me for be knife, I gave it to them.

(L. T. I.) of Dharamarapu Papiah.

Ex. P. 15.

Confessional statement of the 2nd accused recorded by the J. S. C. Magistrate, Srikakulam von 24-5-60.

X X XDharamarapu Papayya (A. 1) myself and Naupada Mutyalu (A. 3) murdered Apparao. It was dona by us. Naupada Mutyalu (A. 3) held the Jegs. I held the head-of Apparao. Papayya (A. 1) -cut off the neck of Apparao with knife. Apparao was lying flatly. We were vexed with his conduct. We were vexed. He has taken away my four hundred rupees. I was earning money by doing service. He has taken away what I saved by doing service to the villagers. He has taken -away the three tolas of gold of Mutyalu (A. 3). Whenever we asked for it, he used to scold us and beat us. On Thursday night, he beat me and Ms. 'tyalu, Pamidi Chandrayya (P. W. 4) intervened -and dispersed. After some time in the night, we thought of killing Apparao. We three killed him That is all. Apparao has also taken the gold of 'Chinna Pillai', When we asked for it, he scolded and beat us. We were vexed. We killed.

(L. T. M. of) Dharamarapu Paramma,

Ex. P. 16.

'Confessional statement of the 3rd accused re-corded by the Judicial Second Class Magistrate, 'Srikakulam, on 24-5-1960.

Dharamarapu Apparao Is my elder brother. He has taken away three tolas of gold of mine. My husband asked for that gold. Apparao was bout to beat my husband. My husband saying that he would give divorce to me went away. I asked Apparao to give me my gold. He said that he would not give the gold. Last year, my younger sister's betrothal had taken place. Her 'two tolas of gold was pledged by my younger brother Papayya and my elder brother Apparao for Rs. 120/- for cultivation expenses. My younger sister's 'athavaru' came to invite us for the marriage of my younger sister. We asked Apparaa -to redeem the gold. He said that he would not redeem it as he had no money. My younger brother Papayya (A, 1) and Paramma (A. 2) raised a loan of Rs. 120/- and redeemed that gold and adorned the girl. We took the girl for marriage. 'We got 'idulu' (Gifts and presents) to an extent of Rs. 63/-. We demanded Apparao through -elders to return that amount s.c that we could discharge half of the loan. He beat us Pamidi Chan. drayya (P. W. 4) and Mukhalingam (P. W. 5) intervened. We thought that it would be better to do away with him. Myself, Papayya (A. 1) and Peramma (A. 2) killed him. Apparao was sleeping in the front yard. I held the legs. Peramma (A. 2) held the head. Papayya (A. 2) cut of the head of Apparao with knife. At cock crowing time, we told all what we did.

(L. T. I. of) Naupada Mutyalu.

7. All the three accused retracted from these confessions at the trial and alleged that they made them owing to threats and inducements by the police and by P. Ws. 4 and 5. In the statement of accused .1 and 3, it was alleged that there was illicit intimacy between the deceased and P. W. 6's daughter and that on the night of 12-5-60 there was a quarrel between the deceased and P. W. 6. The learned trial Judge held that the confessions of all the three accused were voluntary and that the reasons for retracting them were not true. He found that the evidence corroborated the general trend of the retracted confessions, and this was sufficient corroboration on the authority of Subrahmania Goundan v. State of Madras : 1958CriLJ238 . The partition, the separate living of the 1st accused in the 2nd accused's house, the disputes and the quarrel on Thursday night spoken to by the prosecution witnesses and also the medical evidence constituted general corroboration. He also held that the 1st accused's information leading to the recovery of M. O. 1, with which the deceased's injuries could have been caused according to the medical evidence, added weight to the 1st accused's confession. It was proved that the 2nd accused requested P. Ws. 3 to 5 not to inform the village Munsif and to help the cremation of the dead body. The blood-stains on the nails of accused t and 3, for which their explanation of having touched the dead body was not supported by any evidence, was an incriminating circumstance against them showing their participation in the crime. For these reasons, he held that all the confessional statements could be safely acted upon, and convicted and sentenced the accused as mentioned above.

8. The question that arises for consideration is whether the evidence in this case satisfies the legal requirements for basing the convictions on the retracted confessions of the three accused.

9. Leaving aside confessions made to a police officer and confessions made whilst the maker is in the custody of a police officer which are dealt with in Sections 25 - 27 of the Evidence Act, three conditions circumscribe the use of confessions in criminal proceedings. Firstly, a confession is not admissible in evidence at all unless it is voluntary In the sense that it was not the result of any threat or inducement by a person in authority. Secondly, in order to make it the foundation for a conviction, it must be shown to be true. Thirdly, if it is a retracted confession, the reasons for retraction must be shown to be untrue and the confession must be corroborated by other independent evidence. The first is a rule of policy; the second is a rule based on equitable considerations and the third is a rule of prudence. We have to note in this connection that a confession is something more than a mere admission of an incriminating fact, which would be governed by the rules relating to admissions. In Narayana Swami v. Emperor AIR 1939 PC 47, Lord Atkin delivering the judgment of the Privy Council observed as follows:-

No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is, not of itself a confession, e. g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in Article 22 of the Stephen's Digest of the Law of Evidence, as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author, after dealing with admissions generally, is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions....It would not be consistent with the natural use of language to construe confession as a statement by an accused 'suggesting the inference that he committed' the crime.

The first condition has found legislative expression in Section 24 of the Evidence Act. In Ibrahim v. Emperor AIR 1914 PC 155 at pp. 159, 160, dealing with a case from Hong Kong, Lord Sumner said at page 159:

It has long been established as a positive rule of English Criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority...................

Even the rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired by a person in authority, is a rule of policy.

Even if a confession is untrue, if it is proved that it is voluntarily made, it is admissible in evidence. On the other hand, if it is shown to be not voluntary, it is inadmissible in evidence, even if it is true. But the mere fact that the confession was inspired by an idle hope or fear generated by the accused himself, would not make the confession inadmissible.

10. The second condition is based on the consideration that though it may be presumed that no person will willfully make a statement which is against his interest unless it is true, if it is demonstrably untrue it would be unjust to convict him. The rigour of the legal presumption is. tempered on equitable considerations. In Harold White v. The King AIR 1945 PC 181 Sir John Beaumont observed at page 184:-

Confessions are not always true, and ......... they must be checked, more particularly in a murder case, in the light of the whole of the evidence on the record in order to see if they carry conviction.

The method of determining whether the confession is true, was indicated by Gajendragadkar, J., in Sarwan Singh v. State of Punjab (S) AIR 1957 SC 537. At page 644 his Lordship observed:. for the purpose of dealing with this question it would be necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities in the case.

11. The third condition is two fold and is a rule of prudence and caution adopted by Courts based on experience. As observed by Sir John Beaumont in Bhuboni Sahu v. The King AIR 1949 PC 257 at p. 260.

Retraction of a confession by an accused is a common phenomenon in India. The weight to be attached to it must depend upon whether the Court thinks that it was induced by the consideration that the confession was untrue, or by realization that it had failed to secure the benefits the hope of which inspired it.

Therefore, the reasons for the retraction must be shown to be untrue. With regard to the additional requirement of corroboration, it was observed by Govinda Menon, J., in : 1958CriLJ238 , thus:.. the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated.

As to the standard of corroboration, he observed: 'It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession ......... In the case of the person confessing who has resiled from his statement, generally corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars.'

12. The learned Additional Sessions Judge seems to have thought that the expression 'general corroboration' in : 1958CriLJ238 was used in the sense that it was corroboration of the narrative of some of the facts in the confession. But the rule of prudence would have little content if it required corroboration merely of collateral facts. In order to perform its function of adding weight to the retracted confession, the independent corroboration must tend to connect the maker of the confession as a participant in the crime, although it need not by itself be conclusive in its tendency. In our opinion, Govinda Menon, J., did not intend to depart from the rule laid down in the earlier decisions of the Supreme Court as to the nature of the corroboration required. We may notice'that his Lordship, in applying the test formulated by him, placed reliance on the corroboration afforded by the presence of blood on M. Os. 10 to 12. M. O. to being the bed-sheet with which the person charged wrapped himself and M. Os. 11 and 12 being his blood-stained drawer and baniyan respectively. These were facts which tended to connect the Person charged with participation in the crime, although they were capable of alternative explanation.

13. On the question whether the confession here are voluntary, the rst accused stated at the trial that the Sub-Inspector (P. W. 14) and a police constable named Gangayya beat him in the Sub-jail in order to extract the confession and that after he was brought to the Magistrate's Court, P. Ws. 4 and 5 also held out the inducement that they would finance him and get him released. He stated that out of fear and on account of the inducement, he made the confession. The and accused explained that the said Gangayya gave her food with mangoes and held out the inducement that she would be released. The 3rd accused's version was that the police officials beat her and that she was led to hope that P. Ws. 4 and 5 would get her released immediately. It was also suggested during the cross-examination of the prosecution witnesses that Gangayya is related to P. W. 4. But in answer to the Magistrate's searching questions on 23-5-60, each of the accused unequivocally replied that there was no pressure or torture or promise of any favour on the part of the police. After giving them a day's time for reflection, and being satisfied that the statements were voluntary, P. W. 7 recorded the confessional statements, Exs. P.T4, P. 15 and P. 16 on 24-5-60. P. W. 4, to whom the relevant suggestion was made in the cross-examination, denied that he induced the accused to confess. We have no hesitation in I agreeing with the learned trial Judge that the confessions were perfectly voluntary.

15. The reason given for retracting from their confessions, is that the confessions were induced by threats and promises. From our finding that the confessions are voluntary it follows that the reason for retraction is false. On the question of independent corroboration, the 1st accused produced the knife M. O. 1, which was stained with human blood, from the and accused's house. As regards the 2nd accused, the evidence of P. Ws. 2 to 5 and 11, which is supported by Ex. P. 2, establishes that she did not want to inform the Village Munsif about the deceased's death but wanted to cremate the body saying that the deceased had killed himself. As against the 3rd accused, there is the circumstance that her nails were found stained with human blood. It is pointed out that her cloth (M. O. 2) was not similarly stained, but this might well be due to her having washed it in the interval, whereas washing her hands might not have removed the blood in the crevices of the nails. The evidence does not support her explanation that she could have got the blood by touching the dead body, while she was weeping. Although these circumstances are capable of alternative explanations they are consistent with each of the accused having participated in the crime and thus add weight to the truth of their respective confessions. The test of independent corroboration is also thus satisfied in respect of each of the confessions. The convictions are right. The sentences awarded are the minimum allowed by law.

16. The convictions and the sentences are confirmed, and the appeals are dismissed.


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