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Aghnoo Nagesia Vs. State of Bihar - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1966SC119; 1965(0)BLJR865; 1966CriLJ100; 1966MhLJ113(SC); [1966]1SCR134
ActsIndian Penal Code (IPC), 1860 - Sections 302 and 304-A; Indian Evidence Act, 1872 - Sections 8, 17 to 31, 145 and 157; Code of Criminal Procedure (CrPC), 1898 - Sections 154, 162 and 164; Constitution of India - Article 22
AppellantAghnoo Nagesia
RespondentState of Bihar
Cases ReferredState of U. P. v. Deoman Upadhyaya
.....c.j.,; j.c. shah,; k. subba rao,; m. hidayatullah and; n. rajagopal, jj.] on the receipt of a police report, the magistrate first class akola took cognizance of offences under ss. 406, 408, 409, 120b and 477a indian penal code against the appellants. the investigating officer furnished the accused persons with copies of documents which are required by s. 173(4) of the code of criminal procedure to be furnished. at the commencement of the enquiry under ch. xviii of the code of criminal procedure, the public prosecutor informed the court that the evidence in the case being " mainly documentary" the prosecution did not desire to examine any witnesses at the stage of the committal proceeding. after the arguments on behalf of the state and the accused were heard, an application part ofthe confession. again, s. 30 permits the court to take into considerationagainst a co-accused a confession of another accused affecting not only himselfbut the other co-accused. section 30 thus shows that matters affecting otherpersons may form part of the confession. 19. if the first information report is given by the accused to a policeofficer and amounts to a confessional statement, proof of the confession isprohibited by s. 25. the confession includes not only the admission of theoffence but all other admissions of incriminating facts related to the offencecontained in the confessional statement. no part of the confessional statementis receivable in evidence except to the extent that the ban of s. 25 is liftedby s. 27. 20. our attention is not drawn to any decision of.....

Bachawat, J.

1. The appellant was charged under s. 302 of the Indian Penal Code formurdering his aunt, Ratni, her daughter, Chamin, her son-in-law, Somra andDilu, son of Somra. He was convicted and sentenced to death by the JudicialCommissioner of Chotanagpur. The High Court of Patna accepted the deathreference, confirmed the conviction and sentence and dismissed the appealpreferred by the appellant. The appellant now appeals to this Court by specialleave.

2. The prosecution case is that on August 11, 1963 between 7 a.m. and 8 a.m.the appellant murdered Somra in a forest known as Dungijharan Hills and laterChamin in Kesari Garha field and then Ratni and Dilu in the house of Ratni atvillage Jamtoli.

3. The first information of the offences was lodged by the appellant himselfat police station Palkot on August 11, 1963 at 3-15 p.m. The information wasreduced to writing by the officer-in-charge, Sub- Inspector H. P. Choudhury,and the appellant affixed his left thumb- impression on the report. The SubInspector immediately took cognizance of the offence, and arrested theappellant. The next day, the Sub Inspector in the company of the appellant wentto the house of Ratni, where the appellant pointed out the dead bodies of Ratniand Dilu and also a place in the orchard of Ratni covered with bushes andgrass, where he had concealed a tangi. The appellant then took the SubInspector and witnesses to Kasiari garha khet and pointed out the dead body ofChamin lying in a ditch covered with Ghunghu. The appellant then took the SubInspector and the witnesses to Dungijharan Hills, where he pointed out the deadbody of Somra lying in the slope of the hills to the north. The Sub Inspectoralso recovered from the appellant's house a chadar stained with human blood.The evidence of P.W. 6 shows that the appellant had gone to the forest on themorning of August 11, 1963.

4. The medical evidence discloses incised wounds on all the dead bodies. Theinjuries were caused by a sharp-cutting weapon such as a tangi. All the fourpersons were brutally murdered.

5. There is no eye-witness to the murders. The principal evidence againstthe appellant consists of the first information report, which contains a fullconfession of guilt by the appellant. If this report is excluded, the otherevidence on the record is insufficient to convict the appellant. The principalquestion in the appeal is whether the statement or any portion of it isadmissible in evidence.

6. The first information report reads as follows : 'My name is AghnuNagesia. (1) My father's name is Lodhi Nagesia. I am a resident of Lotwa, TolaJamtoli, Thana Palkot, district Ranchi. Today, Sunday, date not known, at about3 p.m. I having come to the P. S. make statement before by the S. I. of Police(2) that on account of my Barima (aunt) Mussammat having given away herproperty to her daughter and son-in-law quarrels and troubles have beenoccurring among us. My Barima has no son and she is a widow. Hence on her deathwe shall be owners of her lands and properties and daughter and son- in-law ofBarima shall have no right to them. She lives separate from us, and lives inher house with her daughter and son-in-law and I live with my brotherseparately in my house. Our lands are separate from the time of our father. (3)Today in the morning at about 7-8 a.m. I had gone with a tangi to Duni JharanPahar to cut shrubs for fencing. I found Somra sitting alone there who wasgrazing cattle there. (4) Seeing him I got enraged and dealt him a tangi blowon the filli (calf) of right leg, whereby he toppled down on the ground.Thereupon I dealt him several Chheo (blows) on the head and the face, with theresult that he became speechless and died. At that time there was none nearabout on that Pahar. (5) Thereafter I came to the Kesar J Garu field where'Somra's wife Chamin was weeding out grass in the field. (6) I struck heralso all on a sudden on the head with the said tangi whereby she dropped downon the ground and died then and there. (7) Thereafter I dragged her to anadjoining field and laid her in a ditch to the north of it and covered her bodywith Gongu (Pala ke Chhata) so that people might not see her. There was noperson then at that place also. (8) Thereafter I armed with that tangi went tothe house of my Barima to kill her. When I reached there, I found that she wassitting near the hearth which was burning. (9) Reaching there all on a sudden Ibegan to strike her on the head with tangi whereupon she dropped down dead atthat very place. (10) Near her was Somra's son aged about 3-4 years. (11)1 alsostruck him with the tangi. He also fell down and died. (12) I finished the lineof my Barima so that no one could take share in her properties. (13) I hid thetangi in the jhari of my Barima's house. (14) Later on I narrated theoccurrence to my chacha (father's brother) Lerha that I killed the aforesaidfour persons with tangi. After sometime (15) T started for the P.S. to lodgeinformation and reaching the P.S. T make this statement before you. (16) MyBarima had all along been quarrelling like a Murukh (foolish woman) and beingvexed, I did so. (17) All the dead bodies and the tangi would be lying in thoseplaces. I can point them out. (18) This is my statement. I got it read over to meand finding it correct, I affixed my left thumb-impression.'

7. We have divided the statement into 18 parts. Parts 1, 15 and 18 show thatthe appellant went to the police station to make the report. Parts 2 and 16show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movementsand opportunities of the appellant before the murders. Part 8 also discloseshis intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the fourpersons. Part 12 discloses the killing and the motive. Parts 7, 13 and 17disclose concealment of a dead body and a tangi and his ability to point outplaces where the dead bodies and the tangi were lying. Part 14 discloses theprevious confession by the appellant. Broadly speaking, the High Court admittedin evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and 18.

8. On behalf of the appellant, it is contended that the entire statement isa confession made to a police officer and is not provable against theappellant, having regard to s. 25 of the Indian Evidence Act, 1872. On behalfof the respondent, it is contended that s. 25 protects only those portions ofthe statement which disclose the killings by the appellant and the rest of thestatement is not protected by s. 25.

9. Section 25 of the Evidence Act is one of the provisions of law dealingwith confessions made by an accused. The law relating to confessions is to befound generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are tobe found under the heading 'Admissions'. Confession is a species ofadmission, and is dealt with in Sections 24 to 30. A confession or an admission isevidence against the maker of it, unless its admissibility is excluded by someprovision of law. Section 24 excludes confessions caused by certaininducements, threats and promises. Section 25 provides : 'No confessionmade to a police officer, shall be proved as against a person accused of anoffence.' The terms of s. 25 are imperative. A confession made to a policeofficer under any circumstances is not admissible in evidence against theaccused. It covers a confession made when he was free and not in policecustody, as also a confession made before any investigation has begun. Theexpression 'accused of any offence' covers a person accused of anoffence at the trial whether or not he was accused of the offence when he madethe confession. Section 26 prohibits proof against any person of a confessionmade by him in the custody of a police officer, unless it is made in theimmediate presence of a Magistrate. The partial ban imposed by s, 26 relates toa confession made to a person other than a police officer. Section 26 does notqualify the absolute ban imposed by s. 25 on a confession made to a policeofficer. Section 27 is in the form of a proviso, and partially lifts the banimposed by Sections 24, 25 and 26. It provides that when any fact is deposed to asdiscovered in consequence of information received from a person accused of anyoffence, in the custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly to the factthereby discovered, may be proved. Section 162 of the Code of CriminalProcedure forbids the use of any statement made by any person to a policeofficer in the course of an investigation for any purpose at any enquiry ortrial in respect of the offence under investigation, save as mentioned in theproviso and in cases falling under sub-s (2), and it specifically provides thatnothing in it shall be deemed to affect the provisions of s. 27 of the EvidenceAct. The words of s. 162 are wide enough to include a confession made to apolice officer in the course of an investigation. A statement or confessionmade in the course of an investigation may be recorded by a Magistrate under s.164 of the Code of Criminal Procedure subject to the safeguards imposed by thesection. Thus, except as provided by s. 27 of the Evidence Act, a confession byan accused to a police officer is absolutely protected under s. 25 of theEvidence Act, and if it is made in the course of an investigation, it is alsoprotected by s. 162 of the Code of Criminal Procedure, and a confession to anyother person made by him while in the custody of a police officer is protectedby s. 26, unless it is made in the immediate presence of a Magistrate. Theseprovisions seem to proceed upon the view that confessions made by an accused toa police officer or made by him while he is in the custody of a police officerare not to be trusted, and should not be used in evidence against him. They arebased upon grounds of public policy, and the fullest effect should be given tothem.

10. Section 154 of the Code of Criminal Procedure provides for the recordingof the first information. The information report as such is not substantiveevidence. It may be used to corroborate the informant under s. 157 of theEvidence Act or to contradict him under s. 145 of the Act, if the informant iscalled as a witness If the first information is given by the accused himself,the fact of his giving the information is admissible against him as evidence ofhis conduct under s. 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admissionunder s. 21 of the Evidence Act and is relevant, see Faddi v. The State of Madhya Pradesh (1) Criminal Appeal No. 210 of 1963 decided on January 24, 1964explaining Nisar Ali v. State of U. P. (2) : 1957CriLJ550 and DalSingh v. King Emperor L. R. 44 I. A. 137. But a confessional firstinformation report to a police officer cannot be used against the accused inview of s. 25 of the Evidence Act.

11. The Indian Evidence Act does not define 'confession'. For along time, the Courts in India adopted the definition of 'confession'given in Art. 22 of Stephen's Digest of the Law of Evidence. According to thatdefinition, a confession is an admission made at any time by a person chargedwith crime, stating or suggesting the inference that he committed that crime.This definition was discarded by the Judicial Committee in Pakala Narayanaswamiv. The King Emperor L.R.[1939] .I. A. 66. Lord Atkin observed :

'........... no statement that containsself-exculpatory matter can amount to confession, if the exculpatory statementis of some fact which if true would negative the offence alleged to beconfessed. Moreover, a confession must either admit in terms the offence, or atany rate substantially all the facts which constitute the offence. An admissionof a gravely incriminating fact, even a conclusively incriminating fact, is notof itself a confession, e.g., an admission that the accused is the owner of andwas in recent possession of the knife or revolver which caused a death with noexplanation of any other man's possession.'

12. These observations received the approval of this Court in Palvinder Kaurv. The State of Punjab : 1953CriLJ154 . In State of U. P. v. Deoman Upadhyaya (6) : 1960CriLJ1504 , Shah, J. referred to a confession as astatement made by a person stating or suggesting the inference that he hascommitted a crime.

13. Shortly put, a confession may be defined as an admission of the offenceby a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statementis of some fact which, if true, would negative the offence alleged to beconfessed. If an admission of an accused is to be used against him, the wholeof it should be tendered in evidence, and if part of the admission isexculpatory and part inculpatory, the prosecution is not at liberty to use inevidence the inculpatory part only. See Hanumant v. State of U. P. (1) : 1953CriLJ129 and Palvinder Kaur v. The State of Punjab [1953] S. C 94. The accused is entitled to insist that the entire admissionincluding the exculpatory part must be tendered in evidence. But this principleis of no assistance to the accused where no part of his statement is self-exculpatory,and the prosecution intends to use the whole of the statement against theaccused.

14. Now, a confession may consist of several parts and ma reveal not onlythe actual commission of the crime but also the motive, the preparation, theopportunity, the provocation, the weapons used, the intention, the concealmentof the weapon and the subsequent conduct of the accused. If the confession istainted, the taint attaches to each part of it. It is not permissible in law toseparate one part and to admit it in evidence as a non-confessional statement.Each part discloses some incriminating fact, i.e., some fact which by itself oralong with other admitted or proved facts suggests the inference that theaccused committed the crime, and though each part taken singly may not amountto a confession, each of them being part of a confessional statement partakesof the character of a confession. If a statement contains an admission of anoffence, not only that admission but also every other admission of anincriminating fact contained in the statement is part of the confession.

15. If proof of the confession is excluded by any provision of law such ass. 24, s. 25 and s. 26 of the Evidence Act, the entire confessional statementin all its parts including the admissions of minor incriminating facts mustalso be excluded, unless proof of it is permitted by some other section such ass. 27 of the Evidence Act. Little substance and content would be left in Sections24, 25 and 26 if proof of admissions of incriminating facts in a confessionalstatement is permitted.

16. Sometimes, a single sentence in a statement may not amount to aconfession at all. Take a case of a person charged under s. 304-A of the IndianPenal Code and a statement made by him to a police officer that 'I wasdrunk; I was driving a car at a speed of 80 miles per hour; I could see A onthe road at a distance of 80 yards; I did not blow the horn; I made no attemptto stop the car; the car knocked down A'. No single sentence in thisstatement amounts to a confession, but the statement read as a whole amounts toa confession of an offence under s. 304-A of the Indian Penal Code, and itwould not be permissible to admit in evidence each sentence separately as anon- confessional statement. Again, take a case where a single sentence in astatement amounts to an admission of an offence.'A' states 'I struck 'B'with a tangi and hurt him'. In consequence of the injury 'B' died.'A'committed an offence and is chargeable under various sections of the IndianPenal Code. Unless he brings his case within one of the recognised exceptions,his statement amounts to an admission of an offence, but the other parts of thestatement such as the motive, the preparation, the absence of provocation,concealment of the weapon and the subsequent conduct, all throw light upon thegravity of the offence and the intention and knowledge of the accused, andnegatives the right of private defence, accident and other possible defences.Each and every admission of an incriminating fact contained in the confessionalstatement is part of the confession.

17. If the confession is caused by an inducement, threat or promise ascontemplated by s. 24 of the Evidence Act, the whole of the confession isexcluded by s. 24. Proof of not only the admission of the offence but also theadmission of every other incriminating fact such as the motive, the preparationand the subsequent conduct is excluded by s. 24. To hold that the proof of theadmission of other incriminating facts is not barred by s. 24 is to rob thesection of its practical utility and content. It may be suggested that the barof s. 24 does not apply to the other admissions, but through receivable inevidence, they are of no weight, as they were caused by inducement, threat orpromise. According to this suggestion, the other admissions are relevant, butare of no value. But we think that on a plain construction of s. 24, proof ofall the admissions of incriminating facts contained in a confessional statementis excluded by the section. Similarly, Sections 25 and 26 bar not only proof of admissionsof an offence by an accused to a police officer or made by him while in thecustody of a police officer but also admissions contained in the confessionalstatement of all incriminating facts related to the offence.

18. A little reflection will show that the expression 'confession'in Sections 24 to 30 refers to the confessional statement as a whole including notonly the admissions of the offence but also all other admissions ofincriminating facts related to the offence. Section 27 partially lifts the banimposed by Sections 24, 25 and 26 in respect of so much of the information whetherit amounts to a confession or not, as relates distinctly to the fact discoveredin consequence of the information, if the other conditions of the section aresatisfied. Section 27 distinctly contemplates that an information leading to adiscovery may be a part of the confession of the accused and thus, fall withinthe purview of Sections 24, 25 and 26. Section 27 thus shows that a confessionalstatement admitting the offence may contain additional information as part ofthe confession. Again, s. 30 permits the Court to take into considerationagainst a co-accused a confession of another accused affecting not only himselfbut the other co-accused. Section 30 thus shows that matters affecting otherpersons may form part of the confession.

19. If the first information report is given by the accused to a policeofficer and amounts to a confessional statement, proof of the confession isprohibited by s. 25. The confession includes not only the admission of theoffence but all other admissions of incriminating facts related to the offencecontained in the confessional statement. No part of the confessional statementis receivable in evidence except to the extent that the ban of s. 25 is liftedby s. 27.

20. Our attention is not drawn to any decision of this Court or of the PrivyCouncil on the question whether apart from s. 27, a confessional firstinformation report given by an accused is receivable in evidence against him.Decisions of the High Courts on this point are hopelessly conflicting. Theycontain all shades of opinion ranging from total exclusion of the confession tototal inclusion of all admissions of incriminating facts except the actualcommission of the crime. In Harji v. Emperor A. I. R. 1918 Lah. 69 and NoorMuhammad v. Emperor [1925] 90 I. C. 148, the Lahore High Court held thatthe entire confessional first information report was inadmissible in evidence.In Emperor v. Harman Kisha I. L. R [1935] Bom. 120, the Bombay HighCourt held that the entire confessional report dealing with events on the nightof the offence was hit by s. 25, and it could not be said that portions of itdealing with the motive and the opportunity were not parts of the confession. InKing Emperor v. Kommoju Brahman I.L.R. [1940] Pat 301the PatnaHigh Court held that no part of the confessional first information report wasreceivable in evidence, the entire report formed a single connected story andno part o it had any meaning or significance except in relation to the whole,and it would be wrong to extract parts of the statement and treat them asrelevant. This case was followed in Adimoola Padayachi v. State(1960] M.W.N.28, and the Court admitted only the portion of the confessional firstinformation report which showed it was given by the accused and investigationhad started thereon. In State of Rajasthan v. Shiv Singh , the Court admittedin evidence the last part of the report dealing with the movements of the accusedafter the commission of the offence, but excluded the other parts of thestatement including those ' relating to motive and opportunity. In LegalRemembrancer v. Lalit Mohan Singh Roy I.L.R. [1922] Cal. 167, the CalcuttaHigh Court admitted in evidence the narrative of the events prior to the nightof the occurrence disclosing the motive of the offence. This case was followedby the Nagpur Court in Bharosa Ramdayal v. Empe-ror(4). In Kartar Singh v.State(5), the Court admitted in evidence the introductory part and the portionnarrating the motive and the opportunity. In Ram Singh v. The State(*), theRajasthan High Court held that where it is possible to separate parts of thefirst information report by an accused from that in which he had made aconfession, that part which can be so separated should be admitted in evidence,and on this view, admitted a part of the report relating to motive andsubsequent conduct including the statement that the accused had left thedeceased lying wounded and breathing in the tibari and there was no hope of hersurviving and he had come having covered her with a cloth. In Lachhumart Mundav. The State of BiVwrC), the Patna High Court admitted in evidence portions ofthe first information report relating to the motive, the opportunity and theentire narrative of events before and after the crime. This case was followedin the judgment! under appeal. Some of the decided cases took the view that ifa part of the report is property severable from the strict confessional part,then the severable part could be tendered in evidence. We think that theseparability test is misleading, and the entire confessional statement is hitby s. 25 and save and except as provided by s. 27 and save and except theformal part identifying the accused as the maker of the report, no part of itcould be tendered in evidence.

21. We think, therefore, that save and except parts 1, 15 and 18 identifyingthe appellant as the maker of the first information report and save and exceptthe portions coming within the purview of s. 27, the entire first informationreport must be excluded from evidence.

22. Section 27 applies only to information received from a person accused ofan offence in the custody of a police officer. Now, the Sub Inspector statedthat he arrested the appellant after he gave the first information reportleading to the discovery. Prima facie, therefore, the appellant was not in thecustody of a police officer when he gave the report, unless it can be said thathe was then in constructive custody. On the question whether a person directlygiving to a police officer information which may be used as evidence againsthim may be deemed to have submitted himself to the custody of the policeofficer within the meaning of s. 27, there is conflict of opinion. See theobservations of Shah, J. and Subba Rao, J. in State of U. P. v. Deoman Upadhyaya (1) : 1960CriLJ1504 . For the purposes of the case, weshall assume that the appellant was constructively in police custody and thereforethe information contained in the first information report leading to thediscovery of the dead bodies and the tangi is admissible in evidence. Theentire evidence against the appellant then consists of the fact that theappellant gave information as to the place where the dead bodies were lying andas to the place where he concealed the tangi, the discovery of the dead bodiesand the tangi in consequence of the information, the discovery of ablood-stained chadar from the appellant's house and the fact that he had goneto Dungi Jharan Hills on the morning of August U, 1963- This evidence is notsufficient to convict the appellant of the offences under s. 302 of the IndianPenal Code.

23. In the result, the appeal is allowed, the conviction and sentence passedby the Courts below are set aside, and the appellant is directed to be set atliberty forthwith.

24. Appeal allowed.

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