Murder conviction based on circumstantial evidence, including the accused's statement to a doctor while in police custody admitting an incriminating fact. The Supreme Court held such a statement was an admission, not a confession, and dismissed the appeal confirming the death sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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KANDA PADAYACIDaliar KANDASWAMY
v.
STATE OF TAMIL NADU
August 27, 1971
[J. M. SHELAT, I. D. DUA AND S. C. ROY, JJ.J
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Evidence Act (1 of 1872), ss. 21 and 26-Statement to doctor admitting incriminating fact-Made by accused while in police custody-If con- fession and hence irrelevant or relevant as admission.
The conviction of the appellant by the Sessions Court for the offence of murder was confirmed by the High Court. The evidence was circum· stantial. One of the circumstances was a statement by the appellant, while in palicc custody, to the doctor, which established the presence of the appellant in the cleceased's room at about the time of death and together with other circumstances, that he a!One caused the death of the deceased.
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On the question whether the statement was a confession and hence irrelevant under s. 26 of the faidence Act, 1872.
HELD : A confession has to be a direct acknowledgement of the guilt of the offence in question and such as would be sufficient by itself for conviction. If it falls short of such a plenary acknowledgement of guilt, it would not be a confession even though the statement is of some incriminating fact which, taken along with other evidence, tends to prove the guilt of the accused. Such a statement is only an admission and not a confes· sion. [454 F-G]
Palvinder Kaur v. Punjab, [1953] S.C.R. 94, Faddi v. Madhya Pradesh, [1964] 6 S.C.R. 312 and A. Nagesia y, Bihar, A.I.R. 1966 S.C. 119, 123, followed.
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Pakala Naravana Swami v. The King, 66 I.A. 66. applied. Observations of Shah, J. in U.P. v. Deoman Upadhyaya, [1961] S.C.R. 14, 21, explained.
Queen Empress v. Nana, (1889) I.L.R. 14 Born. 260, overrukd. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 9 of 1971.
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Appeal from the judgment and order dated April 29, 1970 of the.Madras High Court in Criminal Appeal No. 861 of 1969 and Referred Trial No. 69 of 1969.
S. K. Gambhir, for the appellant.
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A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. This appeal is against the judgment of the High Court of Madras by which it confirmed the appellant's conviction under sec. 302 of the Indian Penal Code and the sentence of death awarded to him. It is founded on a certificate granted by the High Court under Att. 134(1 )(c) of the Constitution.
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KANDASWAMY V. TAMIL NADU (She/at, !.)
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A At the material time the appellant, a widower for sometime, was living in village Valayamadevi near the house where the deceased Natesa Padayachi and his wife Meenakshi (P.W. 1) used to reside. In course of time the appellant and Meenakshi developed illi~it intimacy. The deceased Natesa was serving as a driver in a rice mill belonging to one Sundaralingam Pillai and B his son Guhan Pillai (P .W. 6). One afternoon the deceased returned home a little earlier than usual and found his wife and the appellant in a compromising position. A quarrel ensued between the deceased and the appellant when the deceased warned the appellant against his coming to his house. The appellant retorted that instead of quarrelling with him the deceased should control his wife. To prevent the appellant visiting his residence c the appellant and his wife went .to reside in a portion of a Chatram belonging to his master. Enraged by this change of residence by the deceased, the appellant demanded, through one Govindaraja (P.W. 2), that the deceased should return to him the presents given by him to his wife. He repeated this demand about two days prior to the date of the occurrence through D Subharayan (P.W. 5). On July 7, 1969, the appellant visited the house of the deceased, but P.W. 1 scolded him, whereupon the appellant told her that she was talking to him in that vain because of her husband, and that if he were to do away with her husband she would not be able to withstand him.
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On July 10, 1969, Meenakshi went to another village to see the deceased's brother who was ailing. The appellant saw her and her children going. At about 9.30 that night he was in the tea shop of P.W. 3 when he enquired if the deceased had returned home from the rice mill where he was working. Next morning P.W. 5 and P.W. 6 found Natesa lying dead with cut injurie8 on his neck and other parts of his body. Amongst the articles lying near him, there was a towel which belonged, according to the prosecution, to the appellant. The evidence was that the towel had a mark of the washerman who used to wash the appellant's clothes. P.W. 6 lodged the first information report at about 7.30 that morning very soon after he and P.W. 5 had discovered the ghastly rtragedy.
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There was no direct evidence to establish as to who was the assailant of N ates a. But the prosecution relied on circumstantial evidence, namely, ( 1) that the appellant had a motive to do away with the deceased as the deceased had come in the way between him and P.W. 1, (2) that the appellant knew that P.W. 1 and H her children had left the village that morning and the deceased would be alone in the house, (3) that the appellant had made enquiries that night to find out if the deceased had returned home from the rice mill. ( 4) that the towel M.O. 6 belonging to him
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[19'72] 1 s.c.R.
SUPREME COURT REPORTS
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was found lying near the dead body of Natesa which was identified by the washerman as belonging to him, ( 5) that when the appellant surrendered at the police statio,n his clothes M.O. 7 and 9 were found to have stains of human blood, ( 6) discovery by the appellant of the aruval M.O. 1, (7) injuries on the appellant, namely, an abrasion on his toe and multiple linear abrasions 011~his right arm and chest, and ( 8) his stMement to the Doctor (P .W. 8), to whom the police took the appellant after his arrest, to the effect that it was the deeeased Natesa who at about mid-night on July 10, 1969 had caused the injury on bis toe by biting him.
Both the Sessions Court and the High Court accepted the evidence as to these circumstances and found that that evidence clearly pointed out the appellant as the person who bad caused Natesa's death, and on that basis found the appellant guilty under sec. 302.
Counsel for the appellant raised two contentions before us. The first was that both the Sessions Judge and the High Court had not properly construed important pieces of evidence and bad drawn inferences which were not warranted by the facts established by evidence. The second, which was more substantial and requires consideration, was that the statement made by the appellant before the Doctor (P.W. 8) that it ~ the deceased who bad caused the injury on his toe on the fafal night was inadmissible under sec. 26 of the Evidence Act, 1872 as it was made whilst the appellant was in the custody of the police.
On the first point, counsel took us to the evidence of several witnesses including the medical evidence and tried to show that the injuries on the deceased could not have been caused by a weapon like the aruval, M.O. 1, discovered by the appellant. In our view, counsel was not able to point out any misconstruction of evidence either by the Sessions Court or by the High Court. Equally unsuccessful was his atteinpt to show that the injuries on the deceased were not capable of being caused by a weapon such as the aruval, M.0. 1. The evidence was clear and unambiguous and we find no reason why it could not be accepted by the Sessions Court or the High Court. The discovery of the towel belonging to the appellant near the dead body of Natesa the next ·morning and his statement to the Doctor that it was the deceased who had caused the injury on his toe were sufficient to clinch his presence in the de~ased's house at about mid-night on July 10, 1969, a circumstance, together with the rest of the {;ircumstances, enough to establish a chain leading to the conclusion that he was and could be the only person who had caused Natesa's death. To those two circumstances must be added the
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KANDASWAMY V, TAMIL NADU (She/at, ].) 453
As regards the second contention, we think that on the strength B of the decisions, both of the Privy Council and of this Court, the High Court was right in its conclusion that the appellant's statement before the Doctor was properly admitted in evidence and could be relied upon as an admission under sec. 21 of the Evidence Act, 1872. Nothing was and could be found against the Doctor to prevent his evidence about the statement made. before him by the, appellant from being accepted. The only question, c therefore, is whether the st:rtement was inadmissible by reason of sec. 26.
Secs. 24 to 26 form a trio containing safeguards against accused persons being coerced or induced to confess guilt. Towards that end sec. 24 makes a confession irrelevant in a criD minal proceeding if it is made as a result of inducement, threat or promise from a person in authority, and is sufficient to give an accused person grounds to suppose that by making i1 he would gain any advantage or avoid any evil in reference to the proceedings against him. Under sec. 25, a confession made to a police officer under any circumstances is not admissible in the evide.nce E against him. Sec. 26 provides next that no confession made by a prisoner in custody even to a person other than a police officer is admissible unless made in the immediate presence of a magistrate.
(") 4 Born. L.R. 633.
(3) 66 l·.A. 60.
[1972] I S.C.R.
SUPREME COURT REPORTS
454
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statement was of some fact which if true would negative the offence alleged to be confessed. He observed :
| "Moreover, a confession must either admitintenns the offence, or at any rate substantially all the facts |
|---|
| which constitute theoffice.An admission of a gravely |
| incriminating fact, even a conclusively incriminating |
| fact,isnot of itself a confession,_e.g.,_an admission |
| that the accusedisthe owner of and wasinrecent pos- |
| session of the knife or revolver which caused death |
| with no explanation ofanyother man's possession. |
| Some confusion appearstohave been caused by thede- |
| finitionofconfession in art. 22 of Stephen's_Digestof_ |
| _theLawofEvidence_which defines a confessionasan |
| admission made at any timebya person changed with |
| crime stating or suggesting the inference that hecom- |
| mitted that crime.Ifthe surrounding articles are exa- |
| mined, it willbeapparent that the learned author after |
| dealing with admissions generallyisapplying himselfto |
| admissions in criminal cases, and for this purpose de- |
| fines confessionssoas to cover all 'such admissions, in |
| order to have a general term for use in the threefollow- |
| ing articles:-confessionsecuredbyinducement, made |
| upon oath, made under a promise of secrecy. The de- |
| finitionisnot containedinthe Evidence Act, 1872; |
| and in that Act it would not be consistant with the |
| naturaluseof language to construe confessionasa |
| statementbyan accused "suggesting the inference that becommitted" the crime." |
As held by the Privy Council, a confession has to be a direct acknowledgement of the guilt of the offence in question and such as would be sufficient by itself for conviction. If it falls short of such a plenary acknowledgement of guilt it would not be a confession even though the statement is of some incriminating fact which taken along with other evidence tends to prove his guilt. Such a statement is admission but not confession. Such a definition was brought out by Chandawarkar, J. in R. v. Santya Bandhu(1) by distinguishing a statement giving rise to an inference of guilt and a statement directly admitting the crime in question.
In Palvinder Kaur v. Punjab('). the statement made by the accused was that she had placed her husband's dead body in a trunk and had carried it in a jeep and thrown it into a well. But with regard to the cause of death, the statement was that her husband had accidently taken a poisonous substance erroneously (I) 4 Bom L.R. 633. (2) ( 1953( S.C.R. 94.
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KANDASWAMY v. TAMIL NADU (She/at, /.) 455
It is true that in Queen-Empress v. Nana('), the Bombay High Court, following Stephen's definition of ·confession, held H that a statement suggesting the inference that the prisoner had
(2) A.I.R. 1960 S.C. 409.
(3) (1964) 6 S.C.R, 312. (4) (1889) I.LR. 14 Born. 260 ..
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[I '.i 72] I S.C.R.
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committed the crime would amount to confession. Such a definition would not longer be accepted in the light of Pakala Naravana .Swami's case(1) and the approval of that decision by this Court in .Palvinder Kaur's case(2 }. In U.P. v. Deoman Upadhyaya(8 }, .Shah, J. (as he then was) referred to a confession as a statement made by a person "stating or suggesting the inference that he had commiteed li crime". From that isolated observation, it is .difficult to say. whether he widened the definition than the one .given by the Privy Council. But he did not include in the expression 'confession' an admission of a fact, howeve·r incriminating, which by itself would not be enough to prove the guilt of the crime in question, although it might, together with the other ,evidence on record, lead to the conclusion of the guilt of the accused person. In a later case of A. Nagesia v. Bihar('), Bachawat, J., after referring to Lord Atkin's observations in Pakaia Naravana Swami's case(') and their approvaJ in Palvinder Kaur's caseJ2 ) defined a confession as "an admission of the .olfence by a person charged with the offence." It is thus clear that an admission of a fact, however incriminating, but not by ·itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of ss. 24 to 26 of the Evidence Act.
On the authority of these pronouncements by this Court, it is clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt, of an incriminating fact, and which established the presence of the appellant in the deceased's room but which clearly was not barred under sec. 26. The Sessions Judge and the High Court were, therefore, righ:t in holding it to be admissible and in relying upon it. In this View. councel's second contention also fails and has to be rejected.
The appeal fails and·rs dismissed.
Appeal dismissed.
V.P.S.
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(3) [1961] I S.C.R. 14, at 21. 141 A.LR. 1966 S.C. 119. at 12!.
(1) 66 J.A.66. (2) [1953] S. C.R. 94.
2 issues framed by the court
Whether a statement made by an accused while in police custody to a doctor is a confession barred by section 26 of the Evidence Act or a relevant admission under section 21.
Whether the circumstantial evidence established that the appellant caused the death of the deceased.
Colour shows how this judgement treated each authority
Palvinder Kaur v. PunjabFollowed
[1953] S.C.R. 94 · Who else cites this
Faddi v. Madhya PradeshFollowed
(1964) 6 S.C.R. 312 · Who else cites this
A. Nagesia v. BiharFollowed
A.I.R. 1966 S.C. 119 · Who else cites this
Pakala Naravana Swami v. The KingApplied
66 I.A. 66
U.P. v. Deoman UpadhyayaExplained
[1961] S.C.R. 14, 21 · Who else cites this
Queen Empress v. NanaOverruled
(1889) I.L.R. 14 Born. 260 · Who else cites this
3 provisions across 2 enactments
Kanda Padayachi alias Kandaswamy
State of Tamil Nadu
J. M. Shelat
I. D. Dua
S. C. Roy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
