SHIVA KARAM PAYASWAMI TEWARIversusSTATE OF MAHARASHTRA

                         [2009] 1 S.C.R. 442


A               SHIVA KARAM PAYASWAMI TEWARI
                                  v.
                    STATE OF MAHARASHTRA
                 (Criminal Appeal No. 117 of 2009)

                         JANUARY 21, 2009
B
     [D~. ARIJIT PASAYAT AND ASOK KUMAR GANGULY]


       Penal Code, 1860: s.302,.... Sudden quarrel between
  accused and deceased - Accused hit the deceased with a
c wooden log kept nearby- Deceased died of injuries sustained
  during assault - Conviction u/s. 302, upheld by High Court -
  Held: The background in which assault was made clearly show
  that s.302 was not applicable - Assault was made in the
  course of sudden quarrel without pre-meditation - Accused
D was not armed at the relevant point of time - Conviction
  altered to s.304 Part II- Custodial sentence of 8 years would
  meet the ends of justice.
       Evidence: Extra-judicial confession - Evidentiary value
  of - Held: Extra judicial confession form basis of conviction
E if persons before whom it is stated to be made appear to be
  unbiased and not even remotely inimical to the accused - .
  Where there is material to show animosity, Court has to
  proceed cautiously- On facts, extra-judicial confession made
  not to a stranger but to a friend - Courts below rightly believed
F it.

          Words and phrases: 'confession', 'statement' - Meaning
    of.
                                                                      ).

      Prosecution case was that the appellant-accused
G made an extra judicial confession that there was sudden
  quarrel between him and the deceased and that he hit the
  deceased with a wooden log kept nearby used for cutting
  vegetables. The deceased died of the injuries sustained             •
  during the assault. The trial court convicted accused ul
H                             442
                   SHIVA KARAM PAYASWAMI TEWARI v. STATE OF            443
                                MAHARASHTRA

               ss. 302, 321 and 201 IPC, which was upheld by High             A
     --        Court. Hence the present appeal.

                   Partly allowing the appeal, the Court

                     HELD: 1.1. Extra judicial confession can form the
               basis of conviction if persons before whom it is stated        B
               to be made appear to be unbiased and not even remotely
                inimical to the accused. Where there is material to show
               animosity, Court has to proceed cautiously and find out
               whether confession just like any other evidence depends
               on veracity of witness to whom it is made. It is not           c
                invariable that the Court should not accept such evidence
                if actual words as claimed to have been spoken are not
                reproduced and the substance is given. It will depend on
                circumstance of the case. If substance itself is sufficient
     ~
                to prove culpability and there is no ambiguity about          D
                import of the statement made by accu~ed, evidence can
                be acted upon even though substance and not actual
               words have been stated. Human mind is not a tape'
               recorder which records what has been spoken word by
               word. The witness should be able to say as nearly as           E
               possible actual words spoken by the accused. That
..
'
               would rule out possibility of erroneous interpretation of
               any ambiguous statement. If word by word repetition of
          ¥    statement of the case is insisted upon, more often than
               not evidentiary value of extra judicial confession has to
                                                                              F
               be thrown out as unreliable and not useful. That cannot
               be a requirement in law. It is for the Court to judge
               credibility of the witness's capacity and thereafter to
               decide whether his or her evidence has to i>e accer:-ted
               or not. If Court believes witnesses before whom
               confession is made and is satisfied that confession was        G
          Jr   voluntary basing on such evidence, conviction can be
               founded. Such confession should be clear, specific and
               unambiguous. [Para 4) [447-B-H; 448-A]
                   1.2. The expression 'confession' is not defined in the     H
    444       SUPREME COURT REPORTS            [2009] 1 S.C.R.


A Evidence Act. 'Confession' is a statement made by an            •
  accused which must either admit in terms the offence, or
  at any rate substantially all the facts which constitute the
  offence. The dictionary meaning of the word 'statement'
  is "act of stating; that which is stated; a formal account,
B declaration of facts etc." The word 'statement' includes
  both oral and written statement. Communication to
  another is not however an essential component to
  constitute a 'statement': An accused might have been
  over-heard uttering to himself or saying to his wife or any
c other person in confidence. He might have also uttered
  something in soliloquy. He might also keep a note in
  writing. All the aforesaid nevertheless constitute a
  statement. It such statement is an admission of guilt, it
  would amount to a confession whether it is
  communicated to another or not. [Para 5] [448-A-D]
0
       Sahoo v. State of Uttar Pradesh AIR (1966) SC 40, relied
  on.
       2. In the instant case the extra-judicial confession is
E believable as rightly done by the Trial Court and the High
  Court. The same not was made to a stranger but to a
  friend. Therefore, the Trial Court and the High Court have
  rightly acted upon the extra-judicial confession. At the            •'
  same time the background in which the assault has been
  made clearly shows that Section 302 IPC has no
F application. The assault was made in the course of
  sudden quarrel without pre-meditation. The accused was
  not armed at the relevant point of time. Even according
  to prosecution he picked up the wooden log which was
  lying there and made the assault. That being the position,
G the conviction is altered to Section 304 Part II IPC.
  Custodial sentence of 8 years would meet the ends of
  justice. [Paras 7 and 8] [449-0-G]
                        Case Law Reference:
H         AIR 1966 SC 40        relied on            Para 5
           SHIVA KARAM PAYASWAMI TEWARI v. STATE OF                445
                        MAHARASHTRA
           CRIMINAL APPELLAT.E JURISDICTION: Criminal Appeal              A
       No. 117 of 2009.
           From the Judgment and Order dated 25.8.2005 of the High
       Court of Judicature at Bombay in Criminal Appeal No. 217 of
       2000.
                                                                          B
            Nirmal Chopra for the Appellant.
            Ravindra Keshavrao Adsure for the Respondents.
            The Judgment of the Court was delivered by
                                                                          c
            DR. ARIJIT PASAYAT, J. 1. Leave granted.
            2. Challenge in this appeal is to the judgment of a Division
       Bench of the Bombay High Court upholding the conviction of
       the appellant for the offence punishable under Sections 302,
...,                                                                     D
       321and201 of the Indian Penal Code, 1860 (in short the 'IPC')
       and sentence of life, nine months and nine months respectively
       and fine with default stipulation.
           3. Background facts in a nutshell are as foUows:
                                                                          E
            The accused Shiva Karam Payaswami Tewar was working
       in Hotel Premier run by the complainant Anthony Xavier at
       Dharavi, Mumbai-70. The accused was entrusted with the work
  ~
       of preparation of spices. Muttukumar (hereinafter referred to as
       the 'deceased') was working as a manager in the said hotel.
                                                                          F
       Considering the nature of their work the accused as well as
       Muttukumar used to stay overnight in the hotel.
             On 31.8.1995 in the evening complainant Anthony Xavier
       went to th.e Hotel Premier and after usual supervision and talk
       with manager at night he returned. At that time the accused as G
       well as Muttukumar were in the hotel. On the next day morning
 )
       i.e. on1 .9.1995 one Murugan Shetiya working in the hotel went
       to Anthony (PW-1) and told him that the hotel is open and
       Muttukumar and accused ar~ not present in the hotel. He also
       informed that cash drawer was open and tape recorder was H
    446       SUPREME COURT REPORTS               [2009] 1 S.C.R.


A found missing. Naturally, complainant Anthony immediately
  went to the hotel. When he was making query, Arun Pujari, who
  was running Pan bidi shop near the hotel and taxi driver Suresh
  Kumar who often used to park his taxi near the hotel told him
  that accused met them at about 5.30 a.m., and made enquiry
B about the bus going to Bangalore. When complainant took
  survey of the hotel he found that cash box was open and tape
  recorder kept in the hotel was missing. There was no cash in
  the cash box .. According to him on the previous night the
  manager i.e. deceased had informed him that on that day
c amount of Rs.3500/- was collected and the same was kept in
  the cash box. Report was lodged with the police and
  investigation was undertaken. Appellant was suspected to be
  the murderer.

        After completion of investigation charge-sheet was filed.
D Since the accused pleaded innocence, trial was held. Though
  there was no direct evidence the Trial Court held that the
  circumstantial evidences adduced by the prosecution were
  sufficient. Particular reference was made to the extra-judicial
  confession made before PW-1. Accordingly, conviction was
E recorded by the Trial Court. Appellant filed appeal before the
  High Court which upheld the conviction.

       Before the High Court the stand was that even ifthe extra
  judicial confession is accepted to be correct for the sake of
F argument, case under Section 302 IPC is not made out. The
  stand of the prosecution was that the extra-judicial confession
  clearly showed both the intention and the knowledge.
  Accordingly, the High Court dismissed the appeal. The stand
  taken before the High Court was reiterated by the parties. In
G addition, learned counsel for the appellant submitted that there
  was no pre-meditation and in the course of quarrel, a wooden
  log which was lying was picked up by the appellant in a heat
  of passion and assault was made. Only one blow was given
  and, therefore, Section 302 IPC, in any event, has no
  application. It was submitted that extra-judicial confession is a
H very weak piece of evidence and should not have been made
                 SHIVA KARAM PAYASWAMI TEWARI v. STATE OF                 447
                    MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

..
,
'
       ~
            the basis for conviction.
                  4. We shall first deal with the question regarding claim of
                                                                                 A

             extra judicial confession. Though it is not necessary that the
             witness should speak the exact words but there cannot be vital
             and material difference. While dealing with a stand of extra
             judicial confession, Court has to satisfy itself that the same was B
             voluntary and without any coercion and undue influence. Extra
             judicial confession can form the basis of conviction if persons
             before whom it is stated to be made appear to be unbiased
             and not even remotely inimical to the accused. Where there is
             material to show animosity, Court has to proceed cautiously and c
             find out whether confession just like any other evidence
             depends on veracity of witness to whom it is made. It is not
             invariable that the Court should not accept such evidence if
             actual words as claimed to have been spoken are not
             reproduced and the substance is given. It will depend on D
     "'      circumstance of the case. If substance itself is sufficient to prove
            culpability and there is no ambiguity about import of the
             statement made by accused, evidence can be acted upon even
            though substance and not actual words have been stated.
            Human mind is not a tape recorder which records what has E
            been spoken word by word. The witness should be able to say
            as nearly as possible actual words spoken by the accused.
            That would rule out possibility of erroneous interpretation of any
            ambiguous statement. If word by word repetition of statement
            of the case is insisted upon, more often than not evidentiary F
            value of extra judicial confession has to be thrown out as
            unreliable and not useful. That cannot be a requirement in law.
            There can be some persons who have a good memory and
            may be able to repost exact words and there may he many who
            are possessed of normal memory and do so. It is for the Court G
            to judge credibility of the witness's capacity and thereafter to
     ...,   decide whether his or her evidence has to be accepted or not.
            If Court believes witnesses before whom confession is made
            and is satisfied that confession was voluntary basing on such
            evidence, conviction can be founded. Such confession should
                                                                                  H
    448        SUPREME COURT REPORTS                (2009] 1 S.C.R.


A be clear, specific and unambiguous.
        5. The expression 'confession' is not defined in the
  Evidence Act, 'Confession' is a statement made by an accused
  which must either admit in terms the offence, or at any rate
  substantially all the facts which constitute the offence. The
B dictionary meaning of the word 'statement' is "act of stating; that
  which is stated; a formal account, declaration of facts etc." The
  word 'statement' includes both oral and written statement.
  Communication to another is not however an essential
  component to constitute a 'statement'. An accused might have
C been over-heard uttering to himself or saying to his wife or any
  other person in confidence. He might have also uttered
  something in soliloquy. He might also keep a note in writing.
  All the aforesaid nevertheless constitute a statement. It such
  statement is an admission of guilt, it would amount to a
D confession whether it is communicated to another or not. This
  very question came up for consideration before this Court in
  Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1
  U 68). After referring to some passages written by well known
  authors on the "Law of Evidence" Subba Rao, J. (as he then
E was) held that "communication is not a necessary ingredient
  to constitute confession". In paragraph 5 of the judgment, this
  Court held as follows:
          ... Admissions and confessions are exceptions to the
          hearsay rule. The Evidence Act places them in the
F         category of relevant evidence presumably on the ground
          that as they are declarations against the interest of the
          person making them, they are probably true. The probative
          value of an admission or a confession goes not to depend
          upon its communication to another, though, just like any
G         other piece of evidence, it can be admitted in evidence
          only on proof. This proof in the case of oral admission or
          confession can be offered only by witnesses who heard
          the admission pr confession. as the case may be .... If, as
          we have said, statement is the genus and confession is·
H         only a sub-species of that genus, we do not see any reason
         SHIVA KARAM PAYASWAMI TEWARI v. STATE OF                   449
             ~AHARASHTRA [DR. ARIJIT PASAYAT, J.]

            why the statement implied in the confession should be          A
            g!ven a different meaning. We, therefore, hold that a
            statement, whether communicated or not, admitting guilt
            is a confession of guilt
                                                  (Emphasis supplied)
                                                                           8
        6. The extra-judicial confession purported to have been
     made before PW1 reads as follows:
            "He was brought to the hotel in a taxi. In enquired with the
            aced. what he did to Muttukumar. The aced. disclosed that      c
            he and Muttukumar got up at about 4.30 a.m. and while
            he was preparing spices there was quarrel between them;
            and as a result of the quarrel he had hit Muttukumar with a
            wooden log used for cutting vegetables and Muttukumar
            had died of the injuries sustained during the assault."
                                                                           D
          7. In .the instant case the extra-judicial confession is
     believable as rightly done by the Trial Court and the High Court.
     The same not was made to a stranger but to a friend. Therefore,
     the Trial Court and the High Court have rightly acted upon the
     extra-judicial confession. At the same time the background in         E
     which the assault has been made clearly shows that Section
     302 IPC has no application. The assault was made in the
     course of sudden quarrel without pre-meditation. The accused
.,   was not armed at the relevant point of time. Even according to
     prosecution he picked up the wooden log which was lying there         F
     and made the assault.
          8. That being the position, we a)ter the conviction to
     Section 304 Part II IPC. Custodial sentence of 8 years would
     meet the ends of justice. The appeal is allowed to the aforesaid      G
     extent.
         9. We record our appreciation for the able manner in
     which Mr. Nirmal Chopra, Amicus Curiae, assisted the Court.
     D.G.                                      Appeal partly allowed.      H