STATE OF ANDHRA PRADESHversusKANDA GOPALUDU

                      STATE OF ANDHRA PRADESH                                      A
                                      v.
                            KANDA GOPALUDU

                            SEPTEMBER 27, 2005

                  [H.K. SEMA AND P.P. NAOLEKAR, JJ.]                               B


      Penal Code, J860-Section 302-Conviction by Trial Court on basis
of extra-judicial confession allegedly made by accused before PWs. J to 3 as
also the evidence of the JO and the doctor-But acquittal by High Court- C
On appeal, Held: Reasoning of High Court that the accused made confession
before strangers is contrary to the evidence, hence perverse-Testimony of
Pws. J, 2 and 3 found consistent-Evidence of the JO well corroborated in
material particulars by the evidence of the Doctor-Plea of the accused that
deceased committed suicide completely belied by medical evidence, hence
can be taken as an additional link in the chain of circumstances against the D
accused-Additional incriminating material in form of seizure of shirt stained
with blood-Trial Court rightly ordered conviction.

      Evidence Act, 1872:

      Extra-judicial confession-Admissibility of-Held, is admissible if it         E
inspired confidence and was made voluntarily.

      Examination of witness-Delay in-Effect of-Held: Prosecution witness
being examined almost four years after the incident, could not be expected
to depose with mathematical precision-Human memories are apt to blur
with passage of time.                                                              F
      The Trial Court convicted Respondent under Section 302 IPC based
upon the extra-judicial confession allegedly made by him before PWs. I, 2
and 3. The Trial Court also relied upon the evidence of PW9, the Investigating
Officer corroborated by the evidence of PWS, the Doctor. The High Court            G
however recorded acquittal on the ground that PW.I and PW. 2 were strangers
and there was no reason for the respondent to make the extra-judicial
confession before PWs-1, 2 and 3. The High Court held the statements of
PWs.1 and 2 to be full of contradiction and artificial, though it did not assign
any reason with regard thereto. Hence the present appeal by the State.
                                      M3                                           H
    644                     SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A         Allowing the appeal, the Court

          HELD: 1.1. Extra-judicial confession is admissible if it inspired
    confidence and made voluntarily. The High Court's reasoning that the accused
    has made a confession statement before a stranger is totally perverse. The
    evidence on record shows that PWI is Sarpanch of the village while PW.2
B   and ~W.3 are ward members of the village gram panchayat. [646-A-B]

          1.2. PW.1, 2 and 3 were subjected to lengthy cross-examination. Not
    even a suggestion was put to the witnesses that the confession was tainted
    and non-voluntary or that it was obtained by coercion, inducement or promise
    of favour. [646-D]
c         Gura Singh v. State of Rajasthan, [2001] 2 SCC 205, referred to.

          1.3. The testimony of Pws.], 2 and 3 are consistent. Though the
    respondent pointed out that iu the evidence of PWs I and 2 there is
    contradiction that the accused did not state before them that he came seeking
D   protection from them, but this discrepancy cannot be termed as a contradiction
    which would be fatal to the prosecution case. Every discrepancy in the
    statement of .witness cannot be treated as fatal to prosecution case. The
    discrepancy which is not fatal to the prosecution does not create any infirmity.
    PW.2 was examined almost four years after the incident. Human memories
    are apt to blur with the passage of time. After lapse of almost four years, it
E   cannot be expected that a witness can depose with mathematical precision.
                                                                         [649-C-D]

          2. The dead body of the deceased was found floating in the well waters.
    The statement of the Investigating Officer about the injuries found on the
    body of the deceased at the time of preparing the inquest report Ex.P.5 is found
F   well corroborated in material particular by the evidence of the Doctor, PW.5.
    The Doctor opined that the deceased had apparently died of asphyxia due to
    throttling with the duration of about 18 to 20 hours prior to the post-mortem
    examination. (649-E-F; 648-G]

          3. Apart from the unimpeached evidence against the accused, there is
G yet another strong incriminating material apparent against the accused. In
    his statement under 313 Cr.P.C. the accused while denying the commission
    of any offence took the plea that the deceased has committed suicide. His
    specific plea that the deceased committed suicide as she had no issue is
    completely belied by the medical evidence of Doctor, PW.5 who categorically
H   ruled out the suicidal death. The accused has taken a false plea and this plea
      STATE OF ANDHRAPRADESH v. KANDAGOPA• UDU [SEMA,J.]                 645
can. be taken as an additional link in the chain of circumstances. Another       A
incriminating material against the accused is the seizure of shirt stained
with human blood. [649-E; 650-F[

    Swapan Patra and Ors. v. State of W.B., [1999[ 9 SCC 242 and State of
Maharashtra v. Suresh, [2000] l SCC 471, referred to.
                                                                                 B
      4. In the premises afore-stated, the High Court has committed a grave
error in law as well as in facts in recorrling the acquittal. The order of the
Trial Court recording the conviction of the accused is restored. (650-G)

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 018 of
l~l                                                                              c
     From the Judgment and Order dated 8.8.96 of the Andhra Pradesh High
Court in Crl. A. No. 363 of 1996.

      Mrs. D. Bharathi Reddy for the Appellant.
                                                                                 D
      Ms. Sushma Manchanda for the Respondent.

      The Judgment of the Court was delivered by

      SEMA, J. The respondent was convicted by the trial court under Section
302 IPC. The trial court relying upon the extrajudicial confession made before   E
PW.I, PW.2 and PW.3 found the respondent guilty. The trial court also relied
upon the evidence of PW.9, the Investigating Officer corroborated by the
evidence of PW.5, Doctor. On appeal being preferred by the accused, the High
Court acquitted the accused respondent herein.

      This appeal is preferred by the State by special leave.                    F

      The High Court recorded the acquittal on the ground that PW. I and
PW .2 before whom the accused made extra-judicial confession are strangers
and there is no reason for the respondent to make the extra-judicial confession
before PW.I, PW.2 and PW.3. The High Court also found that the statements
of PWs. I and 2 were f\Jll of contradiction and artificial. On this ground the G
accused was acquitted, however, the High Court has not assigned any reason
with regard to the alleged contradiction between the statements of PW. I and ·
PW.2 and the acquittal is not supported at all. It is now well established
principle of law that the judicial decision is based on reasons. We have been
taken through the evidence of PW. I, 2 and 3 before whom the accused made H
    646                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A extra-Judicial confession. It is now established principle of law that extra-
    judicial confession is admissible if it inspired confidence and made voluntarily.
    The High Court reasoning that the accused has made a confession statement
    before a stranger is totally perverse. The evidence on record shows that PW. I
    is the Sarpanch of the village, PW.2 and PW.3 are also ward members of the
B   village gram panchayat.

          It is the case of the prosecution that the accused had come to the house
    of PW. I where PWs.2 and 3 were sitting together and chatting and he had
    made extra-judicial confession before them voluntarily. It is also the evidence
    on record that PWs. I and 2 went to the Police Station and lodged an FIR
C   while PW.3 was with the accused in the house of PW. I. It is also in the
    evidence on record that PW.9 arrested the accused from the house of PW. I.

          PWs. I, 2 and 3 were subjected to lengthy cross-examination. Not even
    a suggestion was put to the witnesses that the confession was tainted and
    non-voluntary or that it was obtained by coercion, inducement or promise of
D   favour. In the case of Gura Singh V. State of Rajas than, [200 I] 2 sec 205,
    this Court held in paragraph 6 at SCC p. 212 as under:

            "It is settled position of law that extrajudicial confession, if true and
            voluntary, it can be relied upon by the court to convict the accused
            for the commission of the crime alleged. Despite inherent weakness of
E           extrajudicial confession as an item of evidence, it cannot be ignored
            when shown that such confession was made before a person who has
            no reason to state falsely and to whom it is made in the circumstances
            which tend to ~upport the statement. Relying upon an earlier judgment
            in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR (1954)
            SC 322 this Court again in Maghar Singh v. State of Punjab, [1975]
F           4 sec 234 held that the evidence in the form of extrajudicial confession
            made by the accused to witnesses cannot be always termed to be a
            tainted evidence. Corroboration of such evidence is required only by
            way of abundant caution. If the court believes the witness before
            whom the confession is made and is satisfied that the confession was ·
G           true and voluntarily made, then the conviction can be founded on
            such evidence alone. In Narayan Singh v. State of MP., [1985] 4 SCC
            26 this Court cautioned that it is not open to the court trying the
            criminal case to start with a presumption that extrajudicial confession
            is always a weak. type of evidence. It would depend on the nature of
            the circumstances, the time when the confession is made and the
H           credibility of the witnesses who speak for such a confession. The
      STATE OF ANDHRA PRADESH v. KANDA GOPALUDU [SEMA, J.]                 647

       retraction of extrajudicial confession which is a usual phenomenon in       A
       criminal cases would be itself not weaken the case of the prosecution
       based upon such a confession. In Kishore Chand v. State of H.P.,
       [I991] 1 SCC 286 this Court held that an unambiguous extrajudicial
       confession possesses high probative value force as it emanates from
       the person who committed the crime and is admissible in evidence            B
       provided it is free from suspicion and suggestion of any falsity.
       However, before relying on the alleged confession, the court has to
       be satisfied that it is voluntary and is not the result of inducement,
       threat or promise envisaged under Section 24 of the Evidence Act or
       was brought about in suspicious circumstances to circumvent Sections
       25 and 26. The Court is required to look into the surrounding               C
       circumstances to find out as to whether such confession is not inspired
       by any improper or collateral consideration or circumvention of law
       suggesting that it may not be true. All relevant circumstances such
       as the person to whom the confession is made the time and place of
       making it, the circumstances in which it was made have to be scrutinized.
       To the same effect is the judgment in Baldev Raj v. State of Haryana,       D
       [1991] Supp 1SCC14. After referring to the judgment in Piara Singh
       v. State of Punjab, [1977] 4 SCC 452 this Court in Madan Gopal
       Kakkad v. Naval Dubey, [1992] 3 SCC 204 held that the extrajudicial
       confession which is not obtained by coercion, promise of favour or
       false hope and is plenary in character and voluntary in nature can be       E
       made the basis for conviction even without corroboration."

      PW.9, who is the Investigating Officer deposed that he received an
information at about 8.30 a.m. on 25.1.1992 and rushed to Hukumpeta PS and
reached there at about 9.30 a.m. and there he received a copy of the FIR from
PW.8 and took up the investigation. In the course of the Investigation he          F
arrested the accused from the house of PW. I and interrogated him in the
presence of Administrators PW. I and 2. He also found blood stains on the
shirt of the accused which the accused was wearing and seized them under
the cover of Ex.P.2 marked as M.0.5. He was also led by the accused in the
presence of PWs. l and 2 to the scene of occurrence. From the place of
occurrence in the presence of PWs. l and 2 he made a seizure under the cover       G
Ex.p.3 and seized M.O. l and 2 and prepared a sketch map. From the place of
occurrence the accused led the Investigating Officer and others where the
dead body of the deceased was found. The dead body was found floating
in the well waters. The dead body was identified by PW.6 who is the father
of the deceased. The Investigating Officer also stated that the depth of the       H
    648                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   water was only two and a half feet. The inquest report is Ex.P.5. The
    Investigating officer found injuries on the tip of the nose of the deceased,
    right nostril, nail marks on the neck and throat of the deceased. He also found
    abrasions on the right and left knees and bitten marks on both the cheeks
    of the deceased. The statement of Investigating Officer about the injuries
    found on the body of the deceased at the time of preparing the inquest report
B   Ex.P.5 is found well corroborated in material particular by the evidence of
    Doctor, PW.5. The Doctor, PW.5 found the following injuries:

           I.   A lacerated injury over the tip of the nose, both medial ends of
                the nose shows lacerations measuring about I" x 114" x cartilage
                deep;
c
           2.    An abrasion present over the both elbows on the posterior
                 aspect measuring about 3/4" x 1/4" size;

           3.   An abrasion present on both sides of the neck about 4 on the
                left side and 6 on the right side measuring about l/2"x W' in size;
D               reddish in colour;
           4.    An abrasion present over the right knee about 1/5" in diameter,
                 reddish brown in colour;

           5.    A scar mark present in the from of "X+" shaped over the upper
                 I/3rd of the lateral aspect of the thigh.
E
          On internal examination Doctor found, the following:- On opening the
    thorax both lungs were reddish brown in colour, cut section showed congested.
    On squeezing nothing particular, HEART ; Normal size and shape, reddish
    in colour. Cut Section shows blood clots in the right chamber. LIVER; Dark
    reddish brown in colour. Normal in size and shape. Cut section nothing
F   particular. Gall bladder full. Spleen : Reddish violet in colour normal in size.
    Cut Section shows congestion. KIDNEYS ; Both kidneys reddish in colour.
    Cut Section shows congestion. Intestines : Pale reddish in colour. Stomach
    : Pale reddish in colour, contains semi-digested food material about 4 ounces.
    Whitish in colour. Bladder : Empty. UTERUS : Normal in size and shape. Cut
G   Section nothing particular."

          The Doctor opined that the deceased appears to have been died of
    asphyxia due to throttling with the duration of about 18 to 20 hours prior to
    the post-mortem examination.

H         The Doctor, PW.5 in cross-examination denied the suggestion that the
      STATE OF ANDHRA PRADESH v. KANDA GOPALUDU [SEMA, J.] 649

death is suicidal. The Doctor categorically ruled out the suicidal death. He    A
stated that in case of drowning by asphyxia on sequeezing oflungs there will
be frothy blood stained fluid oozint on cut section. In case of death on
account of asphyxia by drowning there will be forthy blood stained fluid both
from the nose and mouth. There will not be any swelling of the neck in cases
of death by drowning on account of asphyxia. The Doctor has denied a
suggestion that the fracture of hyoid bone also will occur by a sudden fall     B
on the edge of the stones.

       We have been taken through the evidence of PWs. l, 2 and 3 before
whom extra-judicial confession has been made by the accused. The testimony
of Pws. l, 2 and 3 are consistent. The learned counsel for the respondent       C
pointed out that in the evidence of PWs. l and 2 there is contradiction that
the accused did not state. before them that he came seeking protection from
them. In our view, this discrepancy cannot be termed as a contradiction which
would be fatal to the prosecution case.· Every discrepancy in the statement
of witness cannot be treated as fatal to prosecution case. The discrepancy
which is not fatal to the prosecution does not create any infirmity. The        D
incident was taken place on 24.1.1992 and PW.2 was examined on 22.1.1996
after almost four years. Human memories are apt to blur with the passage of
time. After lapse of almost four years, it cannot be expected that a witness
can depose with mathematical precision.

      Apart from the unimpeached evidence against the accused there is yet      E
another strong incriminating material apparent against the accused. In his
statement under 313 the accused while denying the commission of any offence
took the plea that the deceased has committed suicide. His specific plea was
that the deceased committed suicide as she had no issue. This plea is
completely belied by the medical evidence of Doctor, PW.5. We have no           p
hesitation to hold that he has taken a false plea and this plea can be taken
as an additional link in the chain of circumstances.

      In the case of Swapan Patra and Ors. v. State of W.B., (1999] 9 SCC
242 this Court held in paragraph 4 at SCC p. 243 as under:-
                                                                                G
       "It is well settled that in a case of circumstantial evidence when the
       accused offers an explanation and that explanation is found to be
       untrue then the same offers an additional link in the chain of
       circumstances to complete the chain. Applying the aforesaid principle,
       we have no hesitation to hold that the circumstances established in
       the case complete the chain of circumstances to prove the charge of      H
    650                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A            murder against the appellant Swapan Patra and, therefore, the
             conviction of appellant Swapan Patra has to be upheld under Section
             302 !PC. So far as the other two appellants are concerned, as s.tated
             earlier, in the absence of any positive evidence even about their
             presence in the house at the relevant point of time, it is difficult to
             rope them in even if all other circumstances narrated earlier are
B            established and, therefore, they are entitled to an order of acquittal."

         "In the case of State of Maharashtra v. Suresh, (2000] 1 SCC 471, the
    same was reiterated in paragraph 27 at SCC p. 480 as under:-

             "It is regrettable that the Division Bench had practically nullified the
c            most formidable incriminating circumstance against the accused spoken
             to by PW 22 Dr. Nand Kumar. We have pointed out earlier the injuries
             which the doctor had noted on the person of the accused when he
             was examined on 25.12.1995. The significant impact of the said
             incriminating circumstance is that the accused could not give any
D            explanation whatsoever for those injuries and therefore he had chosen
             to say that he did not sustain any such injury at all. We have no
             reason to disbelieve the testimony of PW 22 Dr. Nand Kumar. A false
             answer offered by the accused when his attention was drawn to the
             aforesaid circumstance renders that circumstance capable of inculpating
             him. In a situation like this such a false answer can also be counted
E            as providing "a missing link" for completing the chain."

          Another incriminating material against the accused is the seizure of shirt
    stained with blood. The shirt was sent for FSL. The FSL report was marked
    as EX.P.15. The report shows that Item No. I which is the shirt seized from
    the accused stained with human blood.
F
           In the premises afore-stated, the High Court has committed a grave error
    in Jaw as well as in facts in recording the acquittal. The High Court order of
    acquittal is hereby set aside. The order of the trial court recording the
    conviction of the accused is restored. The accused, Kanda Gopaludu is on
G   bail, his bail bond and surety stand cancelled. He is directed to be taken into
    custody forthwith. Compliance within one month.

          The appeal is allowed.

    B.B.B.                                                          Appeal allowed.