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In Re: Muthukarunga Konar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Appeal Nos. 126 and 127 of 1958
Judge
Reported inAIR1959Mad175; 1959CriLJ603
ActsEvidence Act, 1872 - Sections 24; Code of Criminal Procedure (CrPC) , 1898 - Sections 1 and 164
AppellantIn Re: Muthukarunga Konar and anr.
Advocates:K. Natarajan, Amicus Curiae;Public Prosecutor
DispositionAppeals dismissed
Cases ReferredSubranlania Goundan v. State of Madras
Excerpt:
.....alone had opportunity to commit offence - testimony of witness speak against accused - extra judicial confessions made by accused confirms guilt of accused - prosecution has affirmatively and satisfactorily brought home offence for which accused convicted - conviction confirmed. - - 19 showed that death must have happened by cuts being given by an aruval like m. 17. the evidence of motive is particularly strong in this case. the suggestions made by accused i and 2 in their cross examination, show that these witnesses know the accused persons well. 1, 2, 5, 6, 7, 10 and 11 clearly showing that these accused had not only the motive but were the only persons who had the opportunity to commit the offence. that eminent author gives the following reasons :not only does considerable..........were the only persons who had the opportunity to commit the offence.20. then we come to the extra-judicial confession made by accused 1 to p.w. 9. in regard to the value and appreciation of the extra-judicial confessions, the following may be borne in mind. taylor says that evidence of oral confession of guilt ought to be received with great caution. that eminent author gives the following reasons :'not only does considerable danger of mistake arise from the misapprehension and malice of witnesses, the misuse of words, the failure of party to express his own meaning, the infirmity of memory, but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to.....
Judgment:

Ramaswami, J.

1. These are two connected appeals preferred attains t the convictions and sentence's by the learned Sessions Judge of Ramanathapuram in Sessions Case No. 143/1957.

2. P.W. 3 Mandakalai alias Periakaruppa Konar obtained a decree against accused 1 Muthukarunga Konar on 21-7-1956 (vide Ex. P-15) in the Panchayat Court of Uthirakosamangai for Rs. 200. It was transmitted for execution to the Court of the District Munsif of Ramanathapuram, where P.W. 3 filed E. P. No. 99 of 1957. Thereupon accused 1 filed E. A. No. 34 of 1937 for recording full satisfaction of the decree on the foot of Ex. P-3, a stamped receipt dated 11-3-1957, alleged to have been executed by P.W. 3. P.W. 3 denounced this as a forgery. The scribe and attestor of the receipt Ex. P-3 was the deceased Ramalingam Servai.

One of the two other attestors is accused 2. Ex. P-3 was sent to the Finger Print Bureau at Vellore on the application of P.W. 3. The thumb impression found in the receipt was oronounced by the Expert as not that of P.W. 3. It therefore became as plain as a pikestaff that a forged receipt had been filed by the judgment-debtor, accused 1. Therefore, accused 1 was pressing the deceased to speak in support of Ex. P-3 as being a genuine document and P.W. 3 was pressing the deceased to speak against the genuineness of the document. The deceased Ramalingam Servai naturally wanted to make money out of this competition for his services.

3. Therefore, Ramalingam Servai told accused 1 that he would give a final reply after his return from Madurai, where he stated he was going on business and asked accused 1 to give him one sheep, Rs. 30/- and palmyra leaves for roofing his house Accused 1 asked the deceased to go over by train to his village on the following Sunday evening for receiving these presents. These events preceded this tragic occurrence on 13-10-1957.

4. On 13-10-1957, which was a Sunday, the deceased left his house telling his wife P.W. 1 Hajammal and his son P.W. 2 Muniyandi that he was going over to the village of accused 1. In order to reach the village of accused 1, Panaikulam, the deceased took the evening train at Ramanathapuram, leaving for Uthirakosamangai. The train leaves Ramanathapuram at 5-27 P.M. and reaches Uthirakosamangai at 5-43 P.M. Accused 2, who also belongs to Panaikulam, and accused. 1 took tea at the tea-stall of P.W.5, Ganapati Servai, opposite to the railway station at Uthirakosamangai, at about 5 P.M.

They were obviously awaiting the arrival of the deceased. Then accused 1 went to the railway station at about the time of the arrival of the train. On the deceased getting down from the train, he and accused 1, went northwards and returned immediately, while accused 2 continued to be at the tea-stall reading a newspaper. Uthirakosamangai Road leading to Uthirakosamangai town from the railway station of that name, branches off near that railway station.

Accused 1 on calling accused 2, the latter joined accused 1 and the deceased taking with him the Aruval M.O. 6 which he had. On the three persons reaching a culvert across the road at the Ganapathiendal Kanmoi, accused 1 attacked the deceased with the Aruval M.O. 6. ' After the deceased was dead, accused 1 dragged the dead body to a place near the culvert and left it there, covering it with an empty tar drum. On seeing the headlight of a car proceeding from south, both the accused scampered from there to their village Panaikulam,

5. How this matter came to be discovered was in this wise. P.W. 8, the village Munsif of Nallangudi at 9 A.M., on the following day, got information about a corpse lying with cut injuries at the culvert mentioned above. He went there and saw the, dead body and recognised it as that of the deceased. He therefore prepared the crime re ports and sent them to the Police and Magistracy.

6. P.W. 22, the Circle Inspector of Police, Ramanathapuram, on receiving the report, accompanied by a party went to the scene. There he held inquest after sending for P.Ws. 1 and 2. On the same day P.W. 19, the Assistant Surgeon of the Government Headquarters Hospital at Ramanathapuram, held the autopsy.

7. In the meanwhile accused 1 went to Alangulam village; three miles from his place, which is the place., of his mother-in-law. There he met his close relative P.W.9 and confessed to him that apprehending that the deceased will not give evidence in his behalf in the District Munsif's Court, Ramanathapuram, and that he was playing a double game, he had cut and murdered the deceased in Ganapathiendal Kanmoi and asked P.W.9's advice as to what he should do in this matter.

P.W.9 besides being a close relative of accused 1, had also attested Ex. P-3 on the representation of accused 1 that money had been paid to P.W. 3. P.W. 9 naturally became angry with accused 1 for the fell deed' he has done and asked him to take himself off and wanted to have nothing to do with the matter. Being a close relative, P.W.9 has not naturally squealed on him. But accused 1, however, was arrested by P.W. 22 at his house at 6 A.M., on 19-10-1957.

8. Accused 2 who was absconding from Panaikulam, surrendered at about 1 P.M., on the same day viz., 19-10-1957 before P.W.12, the village 'Munsif of Uthirakosamangai, and gave him the statement Ex. P-8 confessing his participation in the crime with accused 1. P.W. 12 forwarded this confessional statement along with his reports to the Police and the Magistracy. Accused 2 was also produced before the Circle Inspector.

9. On the information given by accused 2, the Circle Inspector and his party went to the house of accused 2 at Panaiknlam and there accused 2 produced the Aruval M.O. 6 from the western portion of the roofing of the northern verandah of his house as also his dhoti M.O. 10 and a silk towel M.O. 11 'hung on a clothes line in his house and which were seized on suspicion that they might contain bloodstains. The Circle Inspector seized the Aruval and the clothes under a Mahazar and sent them to Court for being examined by the Chemical Examiner and Serologist.

10. The Circle Inspector also seized from the house of accused 1 his clothing, under the same suspicion, viz., M Os. 7 to 9. They were also sent to Court for being sent to the Chemical Examiner and Serologist. On account of the fact that time had elapsed between the murder and recovery, naturally the murderers had taken care to wash them and remove the blood-stains. Therefore, the Chemical-Examiner did not detect blood-stains on these articles and it is not surprising in the circumstances.

11. In as much as the accused were in the mood to confess on a requisition from the Police, accused were produced before the Sub-Divisional Magistrate, Ramanathapuram. There is no dispute that the Sub-Divisional Magistrate after taking all legitimate precautions laid down by the Criminal Rules of Practice, had recorded the confessional statements of both the accused viz., Ex. P-17 (b) given by accused 2 and Ex. P-18 (b) given by accused 1.

12.-13. (After setting out relevant portions of Exs. P-17 (b) and P-18 (b), the judgment continues as under :)

14. The autopsy held by the Doctor P.W. 19 showed that death must have happened by cuts being given by an Aruval like M.O. 6, at the time mentioned by the prosecution viz., 7 P.M., on 13-10-1957.

15. The case for the accused was that they have been falsely implicated and that the confessional statements made by them, were tutored and enforced, that the Aruval was not produced on the information given by accused 2 and that the witnesses were testifying falsely on account of enmity,

16. On the evidence on record, there cannot be the slightest doubt that the prosecution has brought home the offence to these accused and their convictions are correct. Here are our reasons.

17. The evidence of motive is particularly strong in this case. We have set out the facts showing how the deceased was promising to give evidence for accused 1 and extorting various gifts from him. Accused 1 was not even then certain that the deceased would support his case. In fact accused 1 seems to have apprehended that the deceased would double-cross him even after receiving the bribe from him. Accused 2 was an associate and dependant of accused 1.

18. The prosecution has also shown that the accused alone had the opportunity to commit the offence. The evidence of P.Ws. 1 and 2 shows that on the Wednesday prior to the occurrence Sunday, accused 1 asked the deceased to go over on the following Sunday to his village by the evening train for receiving the cash etc., and that accordingly the deceased left the house by the evening train for Panaikulam.

P.W.7, Chandrasekharan, a student of the S.S. L.C. class in the Rajah's High School, Ramanathapuram, living 5 or 6 houses off from the house of the deceased, speaks to his seeing the deceased man at the Ramanathapuram Railway Station on the evening of Sunday. P.Ws. 5 and 6 testified to the deceased alighting from the evening train at Uthirakosamangai railway station on that Sunday. The suggestions made by accused I and 2 in their cross examination, show that these witnesses know the accused persons well.

The evidence of P.Ws. 5 and 6 is to the effect that at about 5 P.M., before the arrival of the evening train from Ramanathapuram at Uthirakosamangai both the accused took each a cup of tea at their tea-stall, that accused 2 had then an Aruval, identified as M.O. 6, and that when the train was about to arrive accused 1 went into the railway station, while accused 2 continued to read the newspaper, and that after the deceased arrived by the train all the three of them left the place. This was the last time when the deceased was seen alive in the company of these accused.

19. Shortly thereafter that this murder took place is fixed by the evidence of P.W.10, the lorry driver. His evidence is that when he drove the lorry over the Uthirakosamangai road leading from Ramanathapuram-Madurai road, he did not see the blood-stains on the road on his onward journey to unload the stones, but that he saw on his return journey blood-stains at a place 15 feet north of the culvert in the Ganapathiendal Kanmoi. On the next morning he learnt that the deceased had been killed and his corpse was lying nearby.

The evidence of P.W. 10 fixes the time of the murder as at about 7-30 P.M. We have also the evidence of P.W. 11 Irulandi Konar that prior to the commission of this offence, the two accused were seen moving about together. Thus, we have the evidence of P.Ws. 1, 2, 5, 6, 7, 10 and 11 clearly showing that these accused had not only the motive but were the only persons who had the opportunity to commit the offence.

20. Then we come to the extra-judicial confession made by accused 1 to P.W. 9. In regard to the value and appreciation of the extra-Judicial confessions, the following may be borne in mind. Taylor says that evidence of oral confession of guilt ought to be received with great caution. That eminent author gives the following reasons :

'Not only does considerable danger of mistake arise from the misapprehension and malice of witnesses, the misuse of words, the failure of party to express his own meaning, the infirmity of memory, but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof-- together with the character of witnesses who are sometimes necessarily called in cases of secret, and atrocious crime -- all tend to impair the value of this kind of evidence ......'.

To these sources of distrust may well be added the following remarks of Macaulay in his 'History of England':

'Words may easily he misunderstood by an honest man. They may easily be misconstrued by a knave. What was spoken metaphorically may be apprehended literally. What was spoken ludicrously may be apprehended seriously. A particle, a tense, a mood, an emphasis, may make the whole difference between guilt and innocence.'

21. Hasty confessions made to persons having no authority to examine are the weakest and most suspicious of all evidence. Words are often mis-reported through ignorance, inattention or malice, and they are extremely liable to misconstruction. Moreover, this evidence is not. In the usual course of things, to be disproved by that sort of negative evidence by which proof of plain facts may be, and often is, confronted (Foster J.)

22. Such confessions are spoken to by persons who will generally be found to have a motive to implicate the accused person. Their Lordships of the Judicial Committee have remarked in Harold White v. The King, AIR 1945 PC 181 that it would be dangerous in the extreme to act on a confession put into the mouth of the accused by a witness who had a strong motive for Implicating someone else in the murder and uncorroborated from any other source.

23. But it does not follow that extra-judicial confessions are always to be rejected. They may be made in such circumstances as to leave no reasonable doubt as to their truth. In fact extra-judicial confessions should be accepted when the evidence is clear, consistent and convincing. As pointed out in Emperor v. Badal. , the evidence of an admission of guilt to villagers may be as strong, evidence against the accused person as a confession before a Magistrate. It requires no corroboration. But the court has to decide whether the persons before whom the admission is said to have been made are trustworthy witnesses.

Munnu v. Emperor, . Thus, an extra judicial confession is of great importance, but it must be a true extra judicial confession and not one fabricated in order to provide additional evidence for what rightly or wrongly the investigating officer considers to be a weak case: Taule v. Emperor, AIR 1929 Oudh 272. The same principles govern the acceptance of judicial and extra judicial confessions. Om Prakasa v. The State, : AIR1957All388 ; Gaya Prasad v. The State : AIR1957All459 .

24. Bearing these principles in mind, if we examine the extra judicial confession in this case, we find that it has been made to a close relative and a person who was interested in this accused 1 and who has also attested Ex. P-3 and who is himself found to be a respectable ryot. There was no motive for him to falsely implicate this accused 1. It is in the probable and natural course of conduct that this accused 1 would go and unburden himself to such a person in order to obtain his advice as to his future course of conduct. Therefore, like the learned Sessions Judge, we have not the slightest hesitation in accepting this extra judicial confession as true.

25. Then we have the judicial confessions recorded from the accused persons by the Sub-Divisional Magistrate of Ramanathapuram, and the confessional statement of the accused 2 recorded in writing by the village Magistrate P.W. 12. Though village Magistrates in the Madras State are not police officers, they are not Magistrates within the meaning of the Code and therefore cannot record a statement or confession under Section 164, Criminal Procedure Code. Section 1 of the Criminal Procedure Code states that nothing contained in the Code shall apply to the heads of villages in the State of Madras. This principle is embodied in rule S3 of the Criminal Rules of Practice of this Court. Therefore the statement Ex. P-8 has been rightly excluded by the learned Sessions Judge.

26. We shall now examine the confessional statements recorded by the Sub-Divisional Magistrate, Ramanathapuram. The relevant portions of these confessional statements have been extracted above. They are first of all confessional statements as laid down in Palavinder Kuer v. State of Punjab, : 1953CriLJ154 . They have been recorded after taking the legitimate precautions laid down under the Criminal Procedure Code and the Criminal Rules of Practice to ensure that the statements made were voluntary statements and not tutored and enforced ones.

They have been recorded not long after the commission of the offence when the accused would be feeling contrite and seeking to unburden themselves of the enormity of their crime. In these confessional statements both the accused set out in a natural and detailed manner what happened.

Both the accused tar themselves with the same brush. No portion of these confessional statements is inconsistent with the other evidence in the case. In these circumstances the learned Sessions Judge rightly accepted these confessional statements as true and acted upon them notwithstanding the accused resiling therefrom in court on the ground that they have been tutored and enforced by the Police Officers to give such statements.

27. The admissibility and value of retracted confessions may be stated as follows: Where a prisoner adheres at the trial to a previous judicial or extra-judicial confession, it may, if the court believes it, be acted upon without there being any corroboration of it. In the same manner, a plea of guilty is sufficient by itself to support a conviction, though followed by a sentence of death. But a retracted judicial or extra judicial confession stands on a different footing and is 'an endless source of anxiety and difficulty to those who have to see that justice is properly administered.'

Per Straight C.J. in Queen Empress v. Babu Lal, 6 All 509 retraction is a common phenomenon in India Bhuboni Sahu v. The King . When a retracted confession is given in evidence against a prisoner, the court has first to determine whether the confession is admissible. When the confession has been held to be admissible, the Court has then to consider what weight should be given to this piece of evidence.

The admissibility of a confession depends upon its having been made without any such inducement, threat or promise as is mentioned in Section 21 of the Evidence Act, and it has been remarked more than once that the mere fact that a confession has been retracted does not show that it was not voluntary but was made in consequence of some inducement, threat or promise: Pharho v. Emperor, AIR 1932 Sind 201; Mohar Singh v. Emperor, 27 Cri LJ 983; Parian Singh v. Emperor, (1925) Cri LJ 514: AIR 1925 Lah 605; Emperor v. Dewan Kahar. (1923) Cri LJ 497: AIR 1923 Lah J3; Sheo Prasad Koori v. Emperor, : AIR1919Pat322 ; Queen Empress v. Basvanta, ILR 25 Bom 168. From the point of view of admissibility alone, therefore, the mere fact that a confession has been retracted is immaterial; and especially if the reasons given by an accused for withdrawing his confession are palpably false: in Re Kesava Pillai. AIR 1929 Mad 837; 57 Mad LJ 681; In re, B.K. Rajagopal, AIR 1944 Mad 117: 56 Mad LW 737: 19431 2 Mad LJ 634 and where the alleged tutoring and enforcing is not complained about at the earliest point of time.

There may, however, be other circumstances in the case, which may cast a doubt on the voluntary character of the confession, and where there are such other circumstances, the fact that the confession has been retracted will strengthen the inference that the confession was not voluntary, and the confession will then have to be excluded altogether from evidence. But if the court holds the confession to be voluntary, its admissibility is established, and there is nothing in the law to prevent the court from basing a conviction on a retracted confession alone, if it believes it to be true: AIR 1944 Mad 117; In re Syamo Maha Patro, ILR (1932) Mad 903: AIR 1932 Mad 391; Kuttiappa Chetty v. Emperor, 1929 Mad WN 791; AIR 1929 Mad 837; Lakshmayya v. Emperor, 1930 Mad VN 785; Ediga Kanchappa v. Emperor, 1933 Mad Cr C 255; Obigadu v. Emperor. 1936 Mad Cr C 277; Sarwan Singh Rattan Singh v. State of Punjab, (S) : 1957CriLJ1014 ; In re, Brahmayya, AIR 1949 Mad 817.

28. When the relevancy of a confession has been established, the use to be made of it is not a matter of law but of prudence, and depends upon the circumstances of each case, upon the circumstances under which the confession was made, the circumstances under which it was retracted, the reasons given for the retraction and the delay in retracting. Though as a matter of pure law, there may be nothing to prevent a court from convicting on a retracted confession alone, such confession is a highly suspicious piece of evidence, and the courts have emphasised the grave danger of making such piece of evidence alone as a basis for conviction.

They have, therefore, as a matter of prudence, consistently declined to record a conviction on a retracted confession alone and have required the prosecutor to give some independent evidence in corroboration of the confession ; In re Gopisetti Chinna Venkata Subbiah, : AIR1955AP161 . It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone: Purau v. State of Punjab, : AIR1953SC459 ; See Muthuswami v. State of Madras, : AIR1954SC4 ; In re, Ramaswamy Konar, : AIR1954Mad1006 .

It is the duty of a court that is called to act upon a retracted confession to inquire into all the material points and surrounding circumstances aid satisfy itself fully that the confession cannot but be true. The mere fact that a prisoner puts in a plea of not guilty and denies having made the confession, or explains having made it by allegation of police torture, is enough in itself to put the Judge upon inquiry; Emperor v. Thakur Das, : AIR1953SC459 ; Arjuna Lal v. The State, : AIR1953SC411 ; Pangambam v. State of Manipar, : 1956CriLJ126 ; Balbir Singh v. Stale of Punjab, (S) : 1957CriLJ481 .

29. The extent and nature of the corroboration required, before a court can act upon and accept a retracted confession, depends upon the circumstances of each case. On the question as to whit will constitute sufficient corroboration of a retracted confession in a particular case, no rule is laid down by the authorities, except that the corroboration must be on some material particular connecting the accused with the offence.

The production of property, the subject of the offence, or some other article connected with the commission of the offence, will be sufficient corroboration. The truth of a confession may be sufficiently indicated also by the character of the confession itself and the circumstances in which it was made; Jahangiri Lal v. Emperor, AIR 1035 Lah 230; Queen Empress v. Maiku Lal, 20 All 133. Where a confession is wanting in those natural particulars which one would expect in a free and voluntary confession, it would naturally excite court's suspicion; Parwati v. Emperor, (1936) Cri LJ 821: AIR 1936 Nag 88.

A confession should not be relied upon where it is inconsistent with the other evidence in the case. Evidence of motive alone is not sufficient corroboration. It is not essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would he sufficient if the general trend of confession is substantiated by some evidence which would tally with what is contained in the confession. It is, however, not necessary that the corroborative evidence should itself be sufficient for conviction. It should be of the Rex v. Baskerville type. : AIR1954SC4 ; Subranlania Goundan v. State of Madras, 1958 Mad LJ Cri 292: AIR 1958 SC 68.

30. Bearing these principles in mind, if we examine the facts of this case, we find that the confessions of both these accused, for the reasons set Out above, can be acted upon without corroboration and secondly, that as a matter of fact the confessional statements stand corroborated in material particulars by the evidence set out in paragraphs 17-24 above.

31. The net result of this analysis is that the prosecution has affirmatively and satisfactorily brought home the offence for which they have been convicted to these accused persons. The convictions are confirmed. In regard to the sentences, for the reasons given by the learned Sessions Judge, we confirm the sentences also.

32. These appeals are dismissed.


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