LexSHIVA KARAM PAYASWAMI TEWARI versus STATE OF MAHARASHTRA
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[2009] 1 S.C.R. 442 A SHIVA KARAM PAYASWAMI TEWARI v. STATE OF MAHARASHTRA (Criminal Appeal No. 117 of 2009) B JANUARY 21, 2009 [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 E of - Held: Extra judicial confession form 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- 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 G confession is made and is satisfied that confession was 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 0 communicated to another or not
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