LexCHANDRAN versus STATE OF TAMIL NADU
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B c D E F G H 176 CHAND RAN v. STATE OF TAMIL NADU August 16, 1978 [R. S. SARKARIA AND P. S. KAILASAM, JJ.] Code of Cri111inal Procedure 1898-Magistrate not appending nien1orandum certifying that he believes that the confession was voluntarily made by the ' • accused-If fatal to the use of confession against accused at the trial. • Words and phrases-'Hope' and 'believe'-meaning of. The deceased, an aged, wealthy widow living alone always wore on her person valuable jewellery. The prosecution alleged that with a view to rob her of all her jewels, the appellant, who was formerly her servant, along with two others, decoyed her into a field nearby and murdered her \and took away all the jewels. In the confessional statement of the appellant recorded by the Magistrate, he appended a note at the foot-"f hope that this statement was made by him voluntarily". The Magistrate had omitted to certify that "this confession was taken in his (the appellant's) presence and hearing and was read out to the person making it and it is admitted by him to be correct, and it contains a full and true account of the statement made by him." Acquitting the third accused the Sessions Judge convicted the appellant and the second accused under section 302 read with section 120B of Indian Penal Code and under S. 379 !PC and sentenced them to death. On appeal, acquitting second accused, the High Court maintained the con- viction and sentence passed against the appellant. ln further appeal to this Court it was contended on behalf of the appellant that (!) the Magistrate did not testify that he believed that lhe confessional statement had been made by the accused voluntarily and this defect being one of substance is not capable of being cured and (2) the appella-nt's confessional statement leading to the recovery of the jewels· was neither proved nor exhibit~ ed in evidence. Allowing the appeal in part, HELD: (1) (a) H, in the course of police investigation, tile Magistrate recording the confession of an accused, does not certify on the face of the record his satisfaction or belief as to the voluntary nature of the confession nor testifies orally, as to such satisfaction or belief, the defect so caused would be· fatal to the admissibility and use of the confession against the accused at the trial. [187H-188A] (b) There is a marked difference in what is connoted by "hope" and "believe''. "To hope" means "to want and expect", "to look for,vard with e:xpectati0n and desire". "Hope" ·is a wishful feeling, floating on nebulous foams projected into the unknown future. Deep hidden in "hope'' dwells a lingering doubt, a speck of suspicion that what is desired and expected may not turn out true. Not unoften in the mind of the person hoping, there lurks I ., • • ' • I CHANDRAN v. STATE OF TAMIL NADU (Sarkaria, J.) 177 subcoru;cious fear that the "hope" may tum out a "dupe''. In contrast the A term "believe" in the sense in which it is used in section 164 Cr.P.C. has 'logical confidence' or 'rational conviction' as its essential element. It imports a very high degree of expectation wrought by reason, a satisfaction fast rooted in terra firma, free from doubt as to the truth of the fact perceived and believed. [188E·G] ( c) The Magistrate, a judicial officer, advisedly chose to use the word 'hope' B instead of 'believe' because he was not fully convinced that the confession had- been voluntarily made and his mind was troubled by suspicion and doubt as to the voluntariness of the confession. In view of this the retracted confes~ion should be excluded from consideration. [188H] (2) (a) On the facts of this case it cannot be said that the recovery of jewels had been made from the exclusive possession or control of the appel· lant. Assuming it to be so, the inference drawn from their recovery at the C instance of the appellant cannot legitimately be stretched to hold that he was a participant in the murder of the deceased. 'The blood on the jewels is not sufficient to establish, unerringly the appellant's complicity in the murder, y,·hen it was the prosecution's own case that the second accused murdered the deceased and removed the jewels from her body and gave them to the appeHant. [190D-190EJ (b) The High Court had acquitted the second accused and altered the conviction of the appellant to one under s. 302 read with s. 34 1.P.C. The safest limit to which
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