Case: Thimma Alias Thimma Raju Vs. State Of Mysore

complicity in this murder and, therefore, he should be treated no better than an accomplice. In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on the extra-judicial confession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing with them.10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information it was argued also lends support to the appellants guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct of self-preservation in an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In so far as the question of identity is concerned, there can hardly be any doubt that the skeleton was that of the deceased. The Khakhi shirt, Ex. M.O, 1 and the half pant Ex. M. O. 2 have been identified by P. W, 1 as the uniform given to the deceased. The visit book (Ex. M.O. 5) is also proved by P. W, 1 to have been delivered to the deceased. The two postal acknowledgments entrusted to the deceased with the registered articles (Ex. M. O. 6) and the two duplicate keys (Ex. No. 3) of the locks of the post boxes at Kunchenhalli and Somanakoppa have also been identified and proved by P. W, 1. All these articles were recovered from near the dead body. This evidence leaves little doubt that the skeleton was of the deceased. Some doubt was sought to be created on the question whether the bones found at the spot were those of a human body. But on this point the testimony of Dr. Shambulingaswami, Assistant Surgeon, Mc Gann, Hospital, Shimoga (P. W. 26) is clear and it establishes beyond doubt that the bones found were those of a humanThis evidence, in our opinion, convincingly establishes that the deceased was the victim of grievous assaults as a result of which he died and the courts below were quite right in so concluding.It is in evidence that the deceased was last seen in the company of the appellant at about 4.30 p.m when the deceased had gone to deliver the mail bags to the bus. At about 3.30 p.m, according to P. W. 1, the deceased had gone to the post office and taken the postal bags to be delivered to the Mail Bus, M.M.S. Bus Service. He had also told the witness that he would again try to contact Krishna Naika and Halla Naika of Kittadal for delivering the registered articles. Chennabasappa (P. W. 16) has deposed that he saw Govindappa and the appellant delivering the mail bags to the bus after they had taken coffee in the hotel near the bus stop that evening. P. W. 9, the brother of the appellant who was also at the bus stop that evening saw the deceased and the appellant travelling in the same bus. Gangamma (P. W. 8), the wife of the brother of the deceased who lives in a portion of, the same house in which the deceased lived, has stated that she saw the deceased on Friday evening at about 4.30 p.m with the appellant going from their house towards the post office building. The appellant was at that time carrying an axe on his shoulder. The demeanour of this witness was described by the trial court as natural. Sulochana, an eleven year old daughter of the deceased appeared as P. W. 10 and stated that on Friday, the day her father disappeared, at about 4.30 p.m. he left the house to deliver the mail bags. At about 5 p.m. the appellant took an axe from her mother and proceeded towards the post office. At about 8. p.m. the appellant returned home. According to this witness four or five days earlier, the appellant had suggested to the deceased to accompany him to the forest area for bringing teak logs so as to be able to make some money. People of village Haramghatta required teak logs and the deceased, according to the suggestion, could earn at least Rs.15. The deceased first expressed his inability to spare time from his official duties but the suggestion having been repeated the deceased ultimately agreed. This witness, though being only 11 years old was not administered oath, created a favourable impression on the trial court as is obvious from the followingwitness gave her evidence without faltering or visible signs of hesitancy. She speaks clearly, precisely and straight to thetrial court also interrupted the witness in the middle of her testimony in order to satisfy itself, by breaking the continuity of the story, that she was not reproducing a tutored version. On going through her statement we are satisfied that she is a truthful witness and her evidence deserves to be accepted and was rightly accepted by the Courts below. There is, in our opinion, cogent and trustworthy evidence to support the conclusion of the Courts below that the deceased was last seen with the appellant a short time before his disappearance. Having upheld this conclusion, we may appropriately examine the appellants explanation. He has merely denied, by expressing his ignorance, that the deceased had been last seen alive with him. In fact he has simply described as false all the material allegations including that of his acquaintance with Laxmamma and that he used to stay in Kommanal. This bare denial without any explanation is not wholly unimportant.7. This takes us to the motive for the appellant to get rid of the deceased. There can be little doubt on the evidence on the record that the appellant had developed close intimacy with the wife of thethis evidence the motive on the part of the appellant to do away with the deceased isus it was contended that then said to have been made to P. W. 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it. It was emphasised that P. W. 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice.In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on theconfession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing withappears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct ofin an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt. We are satisfied that the evidence on the record establishes the appellants guilt beyond reasonable doubt and the Courts below were quite right in convicting him. On the question of sentence also we do not find any cogent ground for interference.