Judgment summary
This criminal appeal filed by the accused/appellant as against the judgment passed by the Trial Court, for seeking to set aside the conviction and sentence of life imprisonment imposed for the offence under Section 302 IPC.
The prosecution case was that the accused and the deceased, who were husband and wife, were residing together in a rented house. On the date of occurrence, a quarrel arose between them after the accused demanded money. Soon thereafter, the deceased was found inside the house with multiple stab injuries. The house owner and a neighbouring resident saw the accused running out of the house with a knife immediately after the incident. The deceased was taken to the hospital and was declared dead. A case was registered under Section 302 IPC, investigation was conducted, the weapon was recovered, and the final report was filed.
Before the Court, the accused contended that there were no eyewitnesses and that the case was based only on circumstantial evidence. It was argued that only the last-seen circumstance was established and that there was no evidence to show what transpired inside the house. The accused further contended that his confession to the police disclosed sudden provocation and loss of self-control and that the same could be relied upon in his favour to alter the conviction to Section 304 IPC.
The Court found that it was undisputed that the accused and the deceased were living together in the same house and that the deceased died inside the house due to multiple stab injuries caused by a knife. The medical evidence clearly established the nature of injuries and cause of death. The evidence of the house owner and neighbouring witnesses showed that the accused was seen running away from the house with a knife immediately after the occurrence. The Court noted that these witnesses were independent and that the FIR was lodged promptly without delay.
The Court held that when the accused and the deceased were the only persons inside the house and the deceased was found dead with multiple injuries, the burden was on the accused to explain what transpired inside the house. The accused failed to offer any explanation in his examination under Section 313 Cr.P.C. His conduct in fleeing from the scene and being arrested the next day was also taken into account. The Court concluded that the chain of circumstances was complete and proved the guilt of the accused beyond reasonable doubt.
On the legal issue regarding the use of the confession given to the police, the Court held that any statement or confession recorded during investigation under Section 161 Cr.P.C. is barred from use for any purpose under Section 162 Cr.P.C., except as specifically permitted by law. The Court held that such confession cannot be relied upon even in favour of the accused and rejected the plea of sudden provocation. The nature and number of injuries showed repeated attacks, clearly attracting Section 300 IPC.
While dismissing the appeal, the Court held that the conviction of the accused under Section 302 IPC and the sentence of life imprisonment imposed by the Trial Court were proper and did not warrant any interference.
Important paragraphs
12. In the light of the above submission, the following points arise for consideration:
i) Whether the prosecution has proved the guilt of the accused beyond reasonable doubt?
ii) Whether the confession of the accused given during the investigation can be used to extend any benefit to the accused?
No eye-witnesses: 13. Admittedly, there is no eyewitness to the occurrence. However, the entire case is based on the circumstances relied upon by the prosecution. P.W.1 is the house owner and landlady. In her building, the accused and his wife(deceased) were residing as tenants. This fact is clearly established by PW1. In fact, it is not even disputed by the accused.
Deceased died inside the house with multiple stab injuries and not disputed: 14. It is also not disputed that both the husband and wife were residing in the same house. It is further not disputed that the deceased died only inside the house due to multiple stab injuries caused by a knife. P.W.7, the Medical Officer, who conducted the autopsy, noted several external injuries caused by the weapon, knife (M.O.1). He had also found that there were ruptures in the right lung and that the death was due to the shock and haemorrhage resulting from those injuries. The Post-Mortem certificate was also filed in support of the same. Hence, it has been clearly established that the deceased died due to the stab injuries on the date of occurrence, i.e. on 13.07.2012. P.W.5, who was residing in the same vicinity, rushed to the spot on hearing the commotion from the accused’s house. P.W.1 and P.W.5 both witnessed the accused running away from the house with a knife immediately after the incident. P.Ws.1, 5 and 8 also saw the deceased lying in a pool of blood with severe injuries. Their evidence clearly establish that the accused ran away from the place of occurrence with the blood-stained knife. Immediately thereafter, they saw the deceased lying inside the house. These aspects also clearly proved.
No explanation under section 313 Cr.PC: 16. Therefore, we are of the view that the evidence of these three witnesses, who saw the accused running from the house where the dead body of his wife was found with severe injuries, clearly establishes the involvement of the accused in the crime. It is not the case of the accused that he was not in the house at the relevant point of time. In his examination under Section 313 Cr.P.C., he has not given any explanation as to what transpired inside the house or how his wife sustained such grievous injuries.
Burden of proving the crime if two persons living together in the same house: 18. In such circumstances, when the accused and the deceased were the only two persons living together in the same house, and the wife was found dead with multiple injuries caused by a knife, and when the accused has failed to disclose the facts which are specially within his knowledge, it must be held that, only the accused is responsible for the murder. Particularly, in the absence of any explanation from the accused, it can be concluded that he alone caused the said injuries, leading to the death of his wife.
Placing reliance on confession to reduce the sentence: 21. According to the learned counsel for the accused, the confession given to the police clearly indicates that the accused was provoked by his wife, as she had removed her thali. This act, according to the counsel, resulted in sudden provocation, wherein the accused lost self control and inflicted injuries upon his wife in a heat of passion. Therefore, it is contended that leniency should be shown, and the offence ought to be altered to section 304 IPC instead of 302 IPC.
22. In a nutshell, it is the contention of the learned counsel that the confession of the accused, given before the police, can be considered in favour of the accused to establish that the act was committed under sudden provocation. According to him, what is prohibited under law is the use of the confession only against the accused, and not in favour of the accused. In this regard, the learned counsel has also relied upon several judgments as stated supra.
23. A Division Bench of this Court in Venkatesan v. State by Inspector of Police reported in (1997) 2 LW (Crl) 532, has held that, though the statement recorded by the Police Officer is not admissible in evidence under Section 25 of the Indian Evidence Act to prove against the accused, there is no impediment for the Court to consider the relevant portion of the statement made by the accused if it is in favour of the accused. The said Division Bench has also relied upon the confession of the accused therein to extend the benefit of doubt to the accused and converted the offence under Section 302 IPC to 304(ii) IPC in the said case.
25.The judgment in Mottai Thevan’s case was followed later by various Division Benches of this Court. It is relevant to note that Mottai Thevan’s case was decided on 6 th September, 1951. However, within one month, on 22nd October, 1951, the Division Bench consisting of the same Judges viz., Hon’ble Mr. Justice Mack and Hon’ble Mr. Justice Somasundaram, in Vokkaligara Yengtappa v. State reported in 1952 MWN Cr 286 held that the statement made by the accused during investigation cannot be used for any purpose except provided under Section 162 Cr.P.C. unless and until the law is changed and in fact, the Bench has suggested that Section 162 Cr.P.C. needs to be amended so as to enable the statement of the accused to be used in their favour, particularly if they happen to be in explanation of the recovery of incriminating articles from their possession. The relevant portion of the judgment in Vokkaligara Yengtappa’s case is extracted hereunder:
“It is most regrettable in the present state of the law that even a Public Prosecutor although he may know that there is something in a statement made by an accused when examined at the commencement of great help to him, is precluded from bringing it openly to Court notice by way of evidence. But this is the present state of the law under Section 162 Cr.P.C. and Ss.25 to 27 of the Evidence Act and until the law is changed, it is extremely difficult to utilise material in a case diary even in favour of an accused person.”
Hon’ble Mr. Justice Somasundaram has observed as follows:
“So far as Ss.25 to 27 of the Indian Evidence Act are concerned, I have already stated in another case, that they only prohibit the use of the confession against the accused and that there is no prohibition of their use in favour of the accused. But as regards S.162, Criminal Procedure Code, it prohibits the use of the statement made by any person (which includes the statement of the accused) for any purpose. There is therefore a prohibition to use the statement of the accused if made in the course of investigation even if it is in favour of the accused. This section needs to be amended so as to enable the statements of the accused to be used if they are in their favour, particularly if they happen to be in explanation of the recovery of incriminating articles from their possession.”
26. However, the latter judgment in Vokkaligara Yengtappa’s case was never cited later. Whereas, the former judgment in Mottai Thevan’s case was cited later before various Benches.
30. A Division Bench of this Court, in Sudalaimani v. State reported in (2014) 3 MLJ (Cri) 385, by relying upon the judgment of the Hon’ble Supreme Court in Aghnoo Nagesia’s case (supra), has held that the confession of the accused recorded after commencement of investigation, cannot be used for any purpose, even if it is in favour of the accused, as the same is barred under Section 162 Cr.P.C. The said view of this Court in Sudalaimani’s case was challenged before Hon’ble Supreme Court in S.L.P. (Crl.) Diary No.30988 of 2021, however, the same was dismissed on 04.03.2022 and the judgment of this Court in Sudalaimani’s case was followed by subsequent Division Benches in cases reported in Sathiyaraj vs. State rep. by the Inspector of Police reported in 2019 (2) MWN (Cri) 121 and State rep. by the Deputy Superintendent of Police Vs. Kamaraj & Elangovan reported in 2017 SCC OnLine (Mad) 33010.
31. The confession in the given case is one under Section 25 of the Evidence Act, i.e., confession recorded during investigation. Section 25 of the Evidence Act is contained in Chapter-II of the said Act which deals with “Relevancy of facts”. The provisions under the Chapter do not declare a confession made to the Police officer, irrelevant or relevant. It is like an absolute bar to prove the same against the accused. Sections 24 to 27 of the Evidence Act have been incorporated from the Code of Criminal Procedure, 1861. Later, in Code of Criminal Procedure, 1898, these provisions were omitted. Now, under the present Code of Criminal Procedure, Section 161 reads as follows :
“.”
32. Section 162 Cr.P.C. states that no statement made during the course of an investigation shall be used for any purpose in enquiry or trial except for the purpose of contradicting the maker thereof, when such maker is examined as witness of the prosecution side. However, as per Section 162(2) Cr.P.C., the bar contained under Section 162 Cr.P.C. will not apply to the statement falling under the provisions of Clause (1) of Section 32 of the Evidence Act or to affect the provision of Section 27 of the Evidence Act.
33.In Nandhini Satpathy v. Dani (P.L.) and another reported in (1978) 2 SCC 424, the Hon’ble Supreme Court has held that the phrase “any person supposed to be acquainted with the facts and circumstances of the case” contained in Section 161 Cr.P.C. includes even the accused person. Therefore, all the confessions are normally recorded only under Section 161 Cr.P.C./Section 180 BNSS. There is no separate provision or procedure provided under the Code to record the confession of the accused persons. Even to record a judicial confession, only the procedure contemplated under Section 164 Cr.P.C./Section 183 BNSS has to be followed. Therefore, the confession recorded by the Police during the investigation, is recorded only under Section 161(3) Cr.P.C./Section 180(3) BNSS. Therefore, any statement recorded under Section 161 Cr.P.C./Section 180 BNSS, whether in the form of statement or confession, has to be proved in the manner known to law as stipulated under Section 162 Cr.P.C./Section 181 BNSS, provided the same can be used by the accused to contradict the witnesses called for by the prosecution. However, for any statement recorded under Section 161 Cr.P.C./Section 180 BNSS falling within the ambit of dying declaration or Section 27 of Evidence Act, there is a clear exception provided under Section 162(2) Cr.P.C./Section 181(2) BNSS. Except under these three scenarios as stated under Section 162 Cr.P.C./Section 181 BNSS, no statement recorded by the Investigating Officer, including the confession, can be used for any purpose.
35. It is pertinent to note that the Hon'ble Judges, who delivered the judgment in Mottai Thevan's case, realising the bar under Section 162 Cr.P.C., in their later judgment in Vokkaligara Yengtappa's case, within one month after Mottai Thevan's case, have clearly held that there is a bar under Section 162 Cr.P.C. and therefore, the statement made by the accused is inadmissible and in fact, the Division Bench has suggested for amending the provisions of law, which has not been taken note by the other Division Benches later. However, the judgment in Vokkaligara Yengtappa's case was not brought to the notice of the Division Bench of this Court while deciding Selvam's case.
The above judgment of the Apex Court makes it clear that the provision under Section 21 of the Evidence Act is subject to the bar of admissibility of the statement under Section 161 Cr.P.C. Therefore, even if the statement contains admission, the statement being one under Section 161 Cr.P.C./Section 180 BNSS, it would immediately attract the bar under Section 162 Cr.P.C./Section 181 BNSS.
38. The above judgment makes it clear that the confession made before the Police is not admissible and even if such statement is a mere admission in the course of investigation by the Police officer, still it will not be admissible, as the use of any statement made to a police officer under Section 161 Cr.P.C./Section 180 BNSS is prohibited under Section 162 Cr.P.C./Section 181 BNSS except for the purpose which is mentioned therein. Therefore, from a reading of the above judgment, it is clear that, as regards use of confession recorded by the Police under Section 161 Cr.P.C./Section 180 BNSS, the provisions contained in the Code of Criminal Procedure will prevail over the provisions under the Indian Evidence Act in this regard.
40.Though in the judicial discipline, when coordinate Benches take two different views, normally the matter will be referred to the Full Bench, since the judgment of the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel’s case has not been brought to the notice of the Hon’ble Division Bench while deciding Selvam’s case and when the Apex Court’s judgment is already to the point and has held that any statement recorded during the investigation under Section 161 Cr.P.C/Section 180 BNSS is governed by Section 162 Cr.P.C./Section 181 BNSS and inadmissible and even the confession recorded by the Police officer during investigation is always subject to the bar contained under Section 162 Cr.P.C, this issue need not be referred to a larger Bench in view of the authoritative pronouncement already made by the Apex Court.
41. In the light of the above legal position, as there is total bar for use of confession of the accused in favour of the accused, as discussed above, we are not in a position to accept the submission made by the learned counsel for the appellant/accused. In the given case, the fact that the accused and deceased were together in the house has been clearly established. The accused has run away from the house immediately after the occurrence with blood stained knife which has been clearly proved by the prosecution. Though it is urged before this Court as if such occurrence was due to sudden provocation, it is relevant to note that it is for the accused to explain as to what had transpired inside the house. Only for the purpose of explaining the circumstances under which the incriminating materials have come against him, an opportunity is given to the accused under Section 313 Cr.P.C. However, the accused had been a mute spectator during the questioning under Section 313 Cr.P.C. and had not offered any explanation. The burden of proving the fact is on the accused. When the accused has not discharged his burden to explain the facts which are only within his knowledge, in the absence of any explanation, the presumption under Section 106 of Evidence Act has to be applied as against the accused.
Conclusion
43.In fine, this Criminal Appeal is dismissed and the judgment of conviction and sentence passed by the trial Court, is confirmed.
Party:Murugesan Vs. State by The Inspector of Police, Palladam Police Station, Tirupur District [Crl. A. No.471 of 2021] - Date of judgement : 04.11.2025: THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR AND THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN
