* THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.1656 of 2006 % 25.02.2010 # Kandi Venkata Suneel Kumar Reddy, S/o.Subba Reddy … appellant/accused No.1 AND $ State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad …Respondents ! Counsel for appellant: Sri C.Padmanabha Reddy, Senior Counsel for Mr.C.Praveen Kumar ^Counsel for Respondent: The Public Prosecutor < Gist: > Head Note: ? CITATIONS: 1. AIR 1952 Mad 586 2. 1992 Cri.LJ 502 (Karnataka) 3. AIR 1994 SC 610 : 1994 Cri.LJ 1114 (SC) 4. (2002) 2 SCC 551 : 2002 SCC (Cri) 452 5. AIR 1948 Lahore 43 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1656 of 2006 25.2.2010 Between: Kandi Venkata Suneel Kumar Reddy, S/o.Subba Reddy … Appellant/accused No.1 AND The State of A.P., represented by the Public Prosecutor, High Court o A.P., Hyderabad … Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1656 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The challenge in this appeal by sole appellant/accused No.1 is to the judgment dated 04.12.2006 in Sessions Case No.87 of 2004 on the file of the Court of District and Sessions Judge, Nellore. The appellant was tried along with his wife (accused No.2) and her friend (accused No.3) for the charge under Sections 302, 302 read with 34 or in the alternative 302 read with 109 of Indian Penal Code (IPC). By impugned judgment, the appellant alone was convicted under Section 302 IPC and accused Nos.2 and 3 were acquitted. The case of the prosecution in a nutshel is as follows. Accused Nos.1 and 2 fell in love and married. They were staying at rented house in Jyothi Nagar, Nellore. On 15.2.2002 accused No.3, who is friend of accused No.2, came on a visit from Chennai. Two days thereafter when accused No.1 took accused No.2 to hospital for the treatment of latter’s stomachache, P.W.6 and others attempted to commit rape on accused No.3. At the instance of accused No.1, crime No.50 of 2002 was registered under Section 376 read with 511 IPC. Due to this incident, accused No.1 shifted his residence to upstair portion of house No.25/1592, Gowthaminagar. P.W.6 and others were being tried in Sessions Case No.271 of 2002 for rape. On 03.3.2002 at 10.30 pm, Pathagani John Samuel @ Babu (deceased No.1 or D1) and Gaddam Sahadharma Ambedkar @ Babu (deceased No.2 or D2) went to the house of accused No.1 and knocked the door. At that time, accused Nos.1 to 3 and one Vijaya Kumar (LW.3 – not examined) were in the house. On hearing the door knocking sounds, accused No.1 opened the door. Then there was altercation and scuffle between accused No.1 on one hand and D1 and D2 on the other. Accused Nos.2 and 3 provoked accused No.1 to kill the intruders. Accused No.1 took out knife from his waist and stabbed the intruders indiscriminately on abdomen and back. On hearing the shouts of accused Nos.2 and 3 abetting accused No.1 to kill the intruders, P.W.2 advised P.W.1 to observe what is happening in the upstairs. P.W.1 saw D1 and D2 with injuries and accused No.1 with bloodstained clothes and a knife. When enquired, accused No.1 confessed to killing of D1 and D2. P.W.1 telephoned to Police control room, Nellore. P.W.12 Head Constable received information and based on which Ex.P10 First Information Report was registered under Section 302 IPC. P.W.13, Inspector of Police, Nellore Town, investigated Crime No.63 of 2002 of P.S. V Town, Nellore. He examined the witnesses, conducted inquest over the dead bodies in the presence of P.W.7 and two other panchas, prepared scene of offence and observation report in their presence. He also seized two pairs of slippers, wrist watch, scooter bearing No.195 used by D1 and D2 and knife (M.O.1). P.W.8 Civil Assistant Surgeon conducted post- mortem examination on the dead body of D2 and issued Ex.P7 report. P.W.9 conducted post-mortem examination on the dead body of D1 and issued Ex.P8 report. P.W.11 allegedly arrested accused Nos.1 and 3 on 08.3.2002 and recorded their confessional statements, based on which bloodstained shirt of accused No.1 was seized. During the trial, prosecution examined 13 witnesses and marked Exs.P1 to P13 and M.Os.1 and 2. A portion of statement given by P.W.1 under Section 161 of Code of Criminal Procedure, 1973 (Cr.PC) was marked as Ex.D1. The accused did not adduce any evidence though they entered plea of not guilty. During his examination under Section 313 Cr.PC, accused NO.1 filed statement taking the plea of absence of pre-meditation and sudden and grave provocation for his culpable conduct. Learned Sessions Judge considered the plea of accused that there was provocation by reason of D1 and D2 intruding into the house of accused No.1 and tried to modest accused Nos.2 and 3. The Sessions Judge observed that there were no overt acts like removing clothes, kissing, embracing, felling down on accused Nos.2 and 3 with an intention to have forcible sexual intercourse, that there were no bodily injuries on accused Nos.2 and 3 and that aggression used against accused Nos.2 and 3 is not of such serious in nature, to perceive imminent danger to life warranting exercise of right of private defence. The Sessions Judge also assumed that there was indeed altercation between the deceased and accused and that D1 and D2 used force against the accused. Therefore, rejecting the plea of grave and sudden provocation, Sessions Judge believed the evidence of P.Ws.1 and 2 and convicted accused No.1 for the charge under Section 302 IPC and sentenced him to undergo imprisonment for life while acquitting accused Nos.2 and 3 rejecting prosecution case that they abetted the commission of crime. Learned Senior Counsel, Sri C.Padmanabha Reddy, submits that the crime occurred at about 10.30 pm on 03.3.2002 when accused No.1 was in his house along with accused Nos.2 and 3 and L.W.3 Vijaya Kumar. The D1 and D2 were strangers and they intruded into the house in spite of requests by accused No.1 that compromise talks can be commenced in the morning. The intruders also abused accused Nos.2 and 3 and provoked. There was no premeditation on the part of accused No.1, but when D1 and D2 attacked, in lawful exercise of right of private defence, due to grave and sudden provocation, accused No.1 used knife to safeguard his life and the life of accused Nos.2 and 3. He submits that L.W.3 Vijaya Kumar is given up by prosecution. His non-examination and version in the confessional statement of accused (Ex.P9) to the extent it is admissible are strong factors to exonerate accused No.1. Whether Ex.P9 confessional statement made by accused No.1 to the Police is admissible in evidence, in spite of bar created under Section 25 of Indian Evidence Act, 1872. The answer of learned Senior Counsel is affirmative. He relies on the decisions in In Re Mottai Thevan[1], Madaiah v State[2], Murli v State of Rajasthan[3] and Kajal Sen v State of Assam[4]. Per contra, learned Public Prosecutor vehemently opposes any reliance on Ex.P9 as suggested by the defence and commends to accept prosecution version as proved by the evidence of P.W.1 before whom accused No.1 confessed double murder by him. The consideration of effect of Section 25 of Evidence Act on Ex.P9 need to wait a little while. First from the evidence on record, we may reconstruct the scene of occurrence of offence. According to the prosecution, after committing the crime, accused No.1 left Gowthaminagar house and went to Jyothinagar house and concealed bloodstained shirt under a cot. He locked the house and went to Kovuru by lorry to the house of Subhadramma, grandmother of accused No.2 and for two days he did not come out. On 08.3.2002 he came to Gowthaminagar. When accused Nos.2 and 3 were packing luggage to go to Madras, P.W.13 apprehended him. He gave statement based on which his shirt M.O.1 was recovered under Ex.P9. From a perusal of Ex.P9 and the relevant portion of statement of accused No.1 during examination under Section 313 Cr.PC, we may notice the following possible and plausible sequences of events and occurrences. (a) At 10.30 pm when accused Nos.1 to 3 and Vijaya Kumar (L.W.3) were talking inside Gowthaminagar upstairs house, D1 and D2 knocked on the door of neighbouring house, (b) Accused No.1 came out and informed that there was nobody in the house whose door was knocked, (c) D1 and D2 enquired for accused No.1 and the latter revealed his identity, (d) The two intruders demanded that accused No.1 must go down for talking about compromise in accused No.3’s rape case. Accused No.1 refused to go down at that hour and informed that compromise talks can be held on the next morning, (e) Accused Nos.2 and 3 came out and sent accused No.1 inside, (f) The two strangers were talking to accused Nos.2 and 3 in abusive language, (g) On hearing such abusive language, accused No.1 changed from lungi and shirt to pant and shirt, picked up knife with wooden handle and kept it under the shirt and came out, (h) Accused No.1 objected for use of abusive language by D1 and D2, (i) D1 and D2 again abused accused Nos.2 and 3 calling them as prostitutes, (j) Accused Nos.2 and 3 told accused No.1 not to talk and kill D1 and D2, (k) Accused No.1 persuaded D1 and D2 to go down, in vain, (l) D2 kicked and caught hold of shirt of accused No.1, who tried to push D2 away, but D1 caught hold of the neck of accused No.1 and forcibly tried to take him downstairs, (m) Both the intruders beat accused No.1 causing injuries under his eyes and he became angry for not only abusing accused Nos.2 and 3 and also for beating him, (n) Accused No.1 took out knife and started stabbing D2, (o) D1 caught hold of neck of accused No.1 and pulled him away from D2, (p) Accused No.1 stabbed D1 five or six times when he ran downstairs using staircase, but D2 did not leave shirt of accused No.1, who went on stabbing, (q) D2 turned back and accused No.1 stabbed on his back, (r) D2 also ran downstairs, (s) When accused No.1 went and saw D1 was lying dead on staircase. While being examined under Section 313 Cr.PC, accused No.1 gave signed statement repeating more or less the above sequence of events that occurred on the night of 03.3.2002. He also stated that after seeing dead body of D1, he was dumb struck and was sitting in house. Half an hour later, P.W.13 came to scene of crime and enquired. P.W.1 also did not say anything to P.W.13. He also alleged that himself, accused Nos.2 and 3 and P.W.1 were taken to P.S. I- Town where P.W.1 gave a report as dictated by P.W.13. He alleged that later they were shifted to P.S. V-Town and Police arranged treatment by private doctor. On 05.3.2002 father of accused No.1 visited P.S. and the accused were taken to the residence of Judge on 09.3.2002. As directed by the Judge, they were produced in the Court on 11.3.2002 and accused No.1 informed about injuries he sustained. We have attempted to infer above sequential events (a) to (s) from the confessional statement of accused No.1 as well as from his statement during examination under Section 313 Cr.PC. The events (a) to (m) certainly preceded the events (n) to (q) which actually pertain to involvement of accused No.1 in causing stab injuries on D1 and D2. Each event also reveal the role of both the deceased; one holding from the back and other holding the neck of accused No.1. Therefore, it is certainly a situation of violent altercation between assailant and attacked. Even according to prosecution that there was no premeditation on the part of accused No.1 and deceased duo as strangers came with violent “worked up mind” to coerce compromise from accused, it becomes clear that it is not an offence punishable under Section 302 IPC for murder. It is a case, which is covered by fourth exception to Section 300 IPC. Here, we may deviate from this aspect and consider the question of admissibility of confession of accused No.1 before P.W.1 and the Police, insofar as such confession favours him. Section 25 of Evidence Act prohibits the use of confession made to Police against the accused (“no confession made to Police Officer shall be proved as against the person accused of any offence”). An accused should get a fair trial to be Constitution compliant criminal justice administration. It is also assumed that using a Police confession, (which is always suspect of extorting confession by inducement, undue influence, torture and oppression) is Constitutional defiant. Therefore, trinity of Sections 25, 26 and 27 found place in Indian Law of evidence. But commission of crime is not always pre- meditated or planned nor heinous crimes; by volition or on provocation – are committed under watchful satellite television cameras. There may be situations where a heinous crime is committed in exercise of right of private defence for protecting life and property. In such cases, the accused may himself offer to confess giving the incidents leading to exercise of such right of private defence. In such cases, no doubt the confession is inadmissible against the accused, but if such confession favours the accused in extricating himself from the situation or to justify the conduct which might be culpable, does Section 25 of Evidence Act prohibit using such confession to the extent it favours the accused. In In Re Mottai Thevan (supra), the Division Bench of Madras High Court considered such a question. Justice Mack speaking for the Bench suggested that if the confession, which is inadmissible under Section 25 of Evidence Act against the accused, is helpful to him, it can be used in favour of accused. Therein the confession to the Police contained a recital of grave and sudden provocation by the deceased. The relevant passage from the judgment reads as under. The confession appellant made at the police station contains a recital of grave and sustained provocation by the deceased, of threats by him to murder him and his wife and of threats also against his father-in-law to compel him to vacate the house, which drove him in desperation to the commission of this crime. Under Section 25 of the Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. There is nothing in the most unsatisfactory state of the law as regards confessions to police officers to stop the user of such a confession in favour of an accused person. The resultant impasse created by Sections 25, 26 and 27 of the Evidence Act and Section 162, Cri.P.C. is to shut out as legally inadmissible not merely any confession made to police officer but anything said to a police officer by an accused person in the course of an investigation. In this case, we are satisfied that the confession of the appellant wag in fact the first information the police received of this offence and had it been admissible in evidence or had it been recorded by a Magistrate, the full recital of motive would have been entitled to credence and to be taken into the fullest consideration in the assessment of sentence. (emphasis supplied) Justice Somasundaram concurring with the lead opinion, held. Section 25, Indian Evidence Act says that "no confession made to a police officer shall be proved as 'against' a person accused, of any offence". I underline there in single quotation) the word 'against'. The confession does not therefore prohibit the use of it in favour of the accused. In the majority of cases the confessions are sought to be used only against the accused. The cases in which such confessions would or can be used in favour of the accused will be very few and they will be the exceptions to the general rule. The section therefore ought not to be repealed or modified for the sake of the few or the exceptions. (emphasis supplied) In Madaiah (supra), Division Bench of Karnataka High Court, after discussion of the case law in Lal Khan v Emperor[5], In Re Mottai Thevar (supra), held that there is no bar to use confession made before Police in favour of accused. The relevant observations are as under. Whereas u/S.25 of the Evidence Act no part of the confession made by the accused to a Police Officer is held admissible u/S.26 of the Evidence Act, the confession made in the presence of a Police Officer becomes admissible although it is made by an accused who is in custody of the police, provided it is made in the presence of the Magistrate. … … … Whereas u/S. 25 of the Evidence Act no part of the confession made by the accused to a Police Officer is held admissible u/S.26 of the Evidence Act, the confession made in the presence of a Police Officer becomes admissible although it is made by an accused who is in custody of the police, provided it is made in the presence of the Magistrate. I n Murli (supra), Supreme Court took into consideration a statement in favour of the accused to examine whether the case therein falls under first exception to Section 300 IPC. In that case, appellant after inflicting stab injuries on a goonda, himself went to P.S. to give report. On the way, he confessed to a key witness to killing and the Supreme Court considered statement favouring him as admissible. In Kajal Sen (supra), Supreme Court relied on version of the accused found in the statement made to Investigating Officer to acquit the accused for the charge under Section 302 IPC. The relevant observations are as follows. As against this, the statement of one of the accused which was recorded under Section 27 of the Evidence Act for search of the weapon of offence clearly indicates that the deceased was having a “dao” in his hand and there was some altercation between the deceased and the other accused. When the deceased saw Nepal Deb coming on the road, he said “hey, son of bitch, stop” and as Nepal Deb attacked him with a “dao”, he tried to flee away but he intercepted him on the road and at that stage he gave knife-blow and fled away. Hence, the improved story of the so-called eyewitnesses, namely, PW 2 Smt Pritilata Deb, PW 4 Sujit Deb, PW 5 Shri Ranjan Deb and PW 7 Sibaji Ray involving rest of the accused (appellants) is inconsistent with what has been brought on record by the prosecution. However, the learned counsel for the respondent submitted that statement made by the accused Nepal Deb before the investigating officer cannot be taken into consideration so as to doubt the prosecution version as deposed by the eyewitnesses. In our view, this submission is without any substance. Once the prosecution has led the evidence before the court which has remained unchallenged, it was open to the accused to rely upon the same for their defence. (emphasis supplied) Therefore, the law may be taken as well settled that if the accused himself is the informant of cognizable offence or gave a confession admissible to a limited extent under Section 27 of Evidence Act or made extra-judicial confession before non-Police person, statement made in the F.I.R. or extra-judicial confession or confession made to Police, can be – to the extent it is favourable to accused for any purpose either for consideration of acquittal or for modifying conviction – admitted. In this case, prosecution relied on the confession made by accused No.1 to P.W.1 (non-Police person), which also weighed with learned Sessions Judge. L.W.3 Vijaya Kumar would have furnished best evidence had he been examined because he was indisputably present when offence was committed. As already discussed, there was unexpected visit of D1 and D2 to the house of accused No.1. Both the intruders behaved in a violent manner and they being anti-social elements, cannot be ruled out. Accused No.1 receiving some injuries in the scuffle cannot be ruled out. Therefore, we are convinced that it is not a culpable homicide amounting to murder as it is covered by fourth exception to Section 300 IPC. Further accused No.1 was certainly exercising his right of private defence. It may be, as pointed out by learned Sessions Judge, a case where right of private defence is exceeded, in that accused No.1 inflicted many stab injuries on both the assailants, but certainly as the same was done without any pre-meditation in the heat of passion, we rely on that portion in the confession statement made by accused No.1 with regard to events that preceded the commencement of stabbing by him on the deceased. We set aside the conviction of appellant/accused under Section 302 IPC and imprisonment for life awarded thereunder. Instead we convict the appellant/accused No.1 under Section 304 Part-I IPC and sentence him to undergo Rigorous Imprisonment for ten years and pay a fine of Rs.5,000/- (Rupees five thousand only), in default of payment of fine, he shall undergo Simple Imprisonment for six months. The criminal appeal, subject to modification of conviction and sentence, is partly allowed. _________________ (V.V.S.RAO, J) _________________________________ (SAMUDRALA GOVINDARAJULU, J) February , 2010. NOTE: L.R. Copy be marked. (By order) YS [1] AIR 1952 Mad 586 [2] 1992 Cri.LJ 502 (Karnataka) [3] AIR 1994 SC 610 : 1994 Cri.LJ 1114 (SC) [4] (2002) 2 SCC 551 : 2002 SCC (Cri) 452 [5] AIR 1948 Lahore 43