Madras High Court
T.K.Justin Marshal vs The Inspector Of Police on 29 June, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.06.2018 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Crl OP(MD)No.4474 of 2012 and MP(MD)Nos.1 and 2 of 2012 T.K.Justin Marshal ... Petitioner Vs. 1.The Inspector of Police, Vadaseri Police Station, Kanyakumari District. 2.Latha ... Respondents Prayer : This Criminal Original Petition is filed under Section 482 of the Criminal Procedure Code, to call for the records pertaining to the case in PRC No.23 of 2011 on the file of the learned Judicial Magistrate No.II, Nagercoil, quash the charge sheet file under Sections 109 IPC and 302, 120(B) r/w 34 IpC insofar as the petitioner is concerned. For Petitioner : Mr.R.Diwakaran For Respondent : Mr.Robinson, Govt.Advocate for R1 R2 ? No appearance :ORDER
The petitioner is figuring as the 9th accused in PRC No.23 of 2011 on the file of the learned Judicial Magistrate No.II, Nagercoil. Crime No.21 of 2010 was registered on the file of the Inspector of Polie, Vadaseri Police Station for the offences under Sections 341, 324, 307 IPC altered to 341, 324, 302 IPC and subsequently altered to 147, 148, 341, 324, 302, 109, 120(B) r/w 34 IPC following the murder of one Peruvilai Mohan committed on 06.01.2010. The second respondent herein Mrs.Latha who is the sister in law of the deceased Peruvilai Mohan is the defacto complainant. The first respondent took up investigation and filed final report against as many as 10 accused. The petitioner herein is figuring as the 9th accused. As per the final report, the petitioner has been charged with the offences under Sections 109 and 302, 120 B r/w 34 of IPC. As many as 28 List Witnesses are there. Their statements recorded under Sections 161 of Cr.PC have also been enclosed in the typed set of papers. The final report was taken on file by the learned Judicial Magistrate No.II, Nagercoil and the case is still pending at the stage of committal proceedings. It is stated that the 10th accused is still absconding and that therefore the committal proceedings could not be completed. Contending that there is no legally admissible evidence against him, the 9th accused has filed this Criminal Original Petition to quash the impugned proceedings insofar as he is concerned.
2.Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.Side) for the prosecution.
3.The learned counsel for the petitioner submitted that excepting the confession of the co-accused namely A1 to A3, there is absolutely no other material available against him. This Court posed a direct question to the learned Government Advocate (Crl.Side) to confirm the veracity of the submission made by the petitioner's counsel. In response thereto, the prosecution has filed a written submission. The written submission sets out the antecedent facts that led to the registration of Crime No.21 of 2010 on the file of the Vadaseri Police Station.
4.It is stated that there was a dispute between the deceased Peruvilai Mohan and the 10th accused with regard to taking action for collecting fees for car parking at Kanyakumari. Since the 10th accused apprehended that the deceased was planning to murder him, to preempt him, the 10th accused took the lead and murdered him. It is further stated that the petitioner herein and the 10th accused are friends and that it was the petitioner who contacted the first accused and arranged a meeting and also provided all the facilities for committing the murder.
5.The learned Government Advocate (Crl.Side) for the prosecution placed reliance on the statement made by the defacto complainant which has been enclosed at Page No.8 of the typed set of the papers. The prosecution would also highlight the bad antecedent of the petitioner by pointing out the petitioner's involvement in a double murder case registered in Crime No.1061 of 2011 on the file of the Susindram Police Station. He would exhort this Court to dismiss this criminal original petition as allowing this O.P would result in crumbling of the entire prosecution case.
6.This Court anxiously considered the rival submissions. The statement of the defacto complainant enclosed at Page No.8 and that of Thiru.Ambrose is enclosed at Page No.9 of the typed set of papers cannot really advance the case of the prosecution. This Court carefully went through both the statements. They are pure hearsay. Even if both these witnesses namely Latha and Ambrose repeat the said statements verbatim before the court below during the trial, still, the petitioner cannot be convicted on that score as they would be legally inadmissible in evidence. They have no personal knowledge about the involvement of the petitioner. Hence, the reliance on the statements of Latha and Ambrose is wholly misplaced. The undisputed position is that the only material available against the petitioner are the confessions of the co-accused. The confession of a co-accused is no doubt a relevant piece of evidence. Section 30 of the Indian Evidence Act reads as follows :
30.Consideration of proved confession affecting person making it and others jointly under trial for same offence. - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
7.In this case, A1 to A3 are no doubt being tried jointly for the same offence and therefore the aforesaid material can certainly be referred to by the court below. Section 30 of the Indian Evidence Act, 1872, has been interpreted in more than one decision by the Hon'ble Supreme Court. The legal position is that an accused cannot be held guilty solely on the strength of the confession of the co-accused. The said evidence can be looked into more for the purpose of assuring the judicial conscience of the Court. In other words, it can be used as a corroborating material. There must be some other independent evidence against the accused and to lend further assurance to the mind of the Court this confession of the co-accused can be relied upon. The confession of the co-accused by itself cannot form the sole basis for finding an accused guilty of the offences in question.
8.The leading case on the subject still remains Haricharan Kurmi vs. State of Bihar (AIR 1964 SC 1184). The enunciation of law is set out in the following Paragraphs :
11.The question about the part which a confession made by a co- accused person can play in a criminal trial, has to be determined in the light of the provisions of Section 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so Section 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When Section 30 provides that the confession of a co-
accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in Section 30 is not evidence under Section 3 of the Act. Section 3 defines "evidence" as meaning and including-
?(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.?
12.Technically construed this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the court permits or requires to be made before it; and clearly, a confession made by an accused person is not such a statement; it is not made or permitted to be made before the court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, Section 30 provides that a confession may not be evidence as strictly defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession into account.
13.As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty, a confession can only be used to "lend assurance to other evidence against a co-accused". In re Peryaswami Moopan, Reilly J. observed that the provision of Section 30 goes not further than this : "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King, the Privy Council has expressed the same view. Sir.John Beaumont who spoke for the Board, observed that ?a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu's case has been cited with approval.
14.In appreciating the full effect of the provisions contained in Section 30, it may be useful to refer to the position of the evidence given by an accomplice under Section 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person; and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under Section 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.
15.The statements contained in the confessions of the co- accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well-understood and well-established. It, however, appears that in Ram Prakash's case, some observations have been made which do not seem to recognize the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person.
"An exa- mination of the reported decisions of the various High Courts in India," said Imam, J. who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co- accused by virtue of the provisions of Section 30 of the Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars?.
9.Since it is beyond dispute that the entire material available against the petitioner is the confession of the co-accused, this Court is of the view that the prosecution against the petitioner has absolutely no legs to stand on. When the possibility of the contention of the petitioner is not just bleak but zero based on the available materials on record, permitting such a prosecution to continue can only be termed as an abuse of legal process. In this view of the matter, this Court has no hesitation to quash the impugned proceedings insofar as the petitioner is concerned. Accordingly, the impugned prosecution in in PRC No.23 of 2011 on the file of the learned Judicial Magistrate No.II, Nagercoil is quashed insofar as the petitioner is concerned. It is further directed that the police shall secure the absconding accused soon so that the committal proceedings get concluded early. The Superintendent of Police, Kanyakumari District shall monitor this aspect.
10.This Criminal Original Petition is allowed as indicated above. Consequently, connected miscellaneous petitions are closed.
To
1.The Inspector of Police, Vadaseri Police Station, Kanyakumari District.
2.The Superintendent of Police, Kanyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.