Supreme Court of India

STATE OF TAMIL NADUversusKUTTY @ LAKSHMI NARASIMHAN

Citation: 2001 INSC 356
Decided: 10 August 2001
Disposal: Appeal(s) allowed
Bench: K T THOMAS

Holding

A retracted judicial confession is admissible if it is voluntary and truthful, and prior recovery of articles does not invalidate it; thus the conviction stands.

Summary

The appellant, a watchman, was convicted of murder under Sections 302 and 34 of the IPC and sentenced to death, but the High Court acquitted him on the ground that his judicial confession was retracted and that victim's articles were recovered before the confession. The Supreme Court held that a retracted confession is not automatically inadmissible; its voluntariness and truthfulness must be examined, and recovery of articles prior to confession can actually support voluntariness. The Court also ruled that finger impressions of the watchman on the kitchen door constitute incriminating circumstantial evidence. Extrajudicial confessions were deemed unreliable for corroboration, while other material facts corroborated the judicial confession. Consequently, the High Court’s acquittal was set aside, the conviction restored, and the death sentence reduced to life imprisonment.

Issues considered

Whether a retracted judicial confession can be relied upon as evidence.
Whether the recovery of victims' articles before a confession vitiates the confession.
Whether extrajudicial confessions may be used to corroborate a judicial confession.
Whether the watchman's finger impression on the kitchen door is an incriminating circumstance.
Whether conviction under Sections 302 and 34 IPC can be sustained despite the confession's retraction.

Legislation cited

Subjects

confessionretractionadmissibilityvoluntarinessIndian Evidence ActIPC Section 302IPC Section 34finger impressioncircumstantial evidenceextrajudicial confessioncriminal law

Judgment

STATE OF TAMIL NADU A
v.
KUTTY @ LAKSHMI NARASIMHAN

AUGUST JO, 2001

[K.T. THOMAS AND S.N. VARIAVA, JJ.] B
(

Criminal Trial/Evidence Act, 1872 :

Retracted Confession-Evidentiary value of-Held: Non-retracted
confession is a rarity in criminal cases-It is injudicious to reject a judicial C
confession merely because its maker has retracted from it-The evidence
concerning the confession has to be evaluated by looking at all aspects.

Confession-Twin tests of-Held: Whether it is voluntary and true-
Once these tests are satisfied the next step is to see if there is any other reason
which stands in the way of acting on it. D
Confession-Articles belonging to victims recovered prior to making of
confession-Admissibility of-Held: Judicial confession does not become bad
by reason of such recovery-Such recovery is a factor in favour of the
voluntariness of the confession.
E
Confession-Truthfulness of-Held: Court can look/or other material
to lend assurance about the truth of confession.

Circumstantial Evidence-Finger impression-Incriminating nature of-
Watchman's finger impressionfound on the kitchen door-Held: In the absence
of any explanation it is an incriminating circumstance against the watchman. F
The appellant-accused was convicted by the trial court for an offence
under Section 302 read with Section 34 of the Penal Code, 1860 and sentence
to death. But the High Court acquitted the appellant on the grounds that the
appellant retracted the confession made by him and that the articles belonging G
to the victims were recovered prior to the making of the confession. Hence
this appeal.

According to the prosecution, the appellant was employed as a watchman
in the house of the deceased and on the fateful day the appellant along with

433 H
434 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A two others killed the deceased. The finger impression of the appellant was
found on the door of the kitchen of the house.

Allowirg the appeal, the Court

HELD: I. I. It is not the law that once a confession was retracted the
B court should presume that the confession is tainted. As a matter of practical
knowledge one can say that non-retracted confession is a rarity in criminal
cases. To retract from confession is the right of the confessor and all the
accused against whom confessions were produced by the prosecution have
invariably adopted that right. It would be injudicious to jettison a judicial
C confession on the mere premise that its maker has retracted from it. The
court has a duty to evaluate the evidence concerning the confession by
looking at all aspects. The twin test of a confession is to ascertain whether
it was voluntary and true. Once those tests are found to be positive the next
endeavour is to sec whether there is any other reason, which stands in the
way of acting on it. Even for that, retraction of the confession is not the
D ground to throw the confession overboard. (438-0-E)

1.2. A judicial confession would not become bad by reason of the fact
that articles belonging to the victims were recovered prior to the making of
the confession. That aspect, instead of vitiating the confession, could be a
factor in favour of the voluntariness of the confession. When the culprit
E finds that the articles concealed by him are all disintered it is possible that
he might feel that there is no use in concealing the facts any more. Then
he may desire to make a clean breast of everything to any person or
authorities. (438-F, G(

2.1. Even regarding the truthfulness of the version given by the accused
F in the confession it is open to the court to ascertain whether there are other
materials to lend assurance to the court about the truth of it. (439-H; 440-A I

2.2. The finger impression of the accused was found on the door of the
kitchen of the house. If the finger impression of the cook was found on the
G door of the kitchen one would have declined to use it as a piece of corroboration
because of the role which a cook has to perform in the culinary wing of the
house. But the place of a watchman of the house is normally outside the
house, if not outside the gate of the compound itself. In the absence of any
explanation as to how the finger impression of the accused had appeared on
the door of the kitchen of the house one can safely treat that also as an
H incriminating circumstance against the accused. (440-G, H; 441-A(
STATE OF TAMIL NADU ''· KUTTY@LAKSHMI NARASIMHAN [THOMAS, .I] 435
CRIMINAL APPELLATE .JURISDICTION: Criminal Appeal No. A
453/2001.

From the Judgment and Order dated 3.5.1990 of the Madras High Court
in R.T. No. 2of1989 and Crl.A. Nos. 300, 502 and 764of1989.

S. Balakrishnan, Revathy Raghavan, Ms. Shweta Garg and Ms. Astha B
Tyagi for the Appellant.

K. Vishwanathan, K.V. Venkataraman, Ajit Mohan Singh and Atul Sinha
for Mr. S.R. Seti a for the Respondent.

The Judgment of the Court was delivered by c
THOMAS, J. Rani Padmini, a dainty film actress of the South and her ·
mother Indira Kumari were butchered on an ill-fated morning fifteen years ago,
in their own flat at Anna Nagar in Madras (now Chennai). Their driver,
watchman and cook were later caught and charge-sheeted by the police for
the said double murder. The trial court convicted all the three persons and D
sentenced them to death. But a Division Bench of the High Court of Madras
acquitted two of them (the watchman and the cook) while altering the sentence
of the driver to imprisonment for life after confirming the conviction. That
person (A-I Jebaraj) moved this Court for special leave to appeal but that
special leave petition was dismissed. E
The State of Tamil Nadu filed appeals against the acquittal of the two
persons (the watchman A-2 Lakshmi Narasimhan and the cook A-3 Ganeshan)
but the latter was not traced out in spite of repeated searches made for
effecting the service of notice on him. Finally this Court dismissed the appeal
filed against A-3 Ganeshan on 5.4.1999. Thus the appeal by special leave filed F
by the State as against the watchman (A-2 Lakshmi Narasimhan @ Kutty) is
now surviving.

, The dreadful end of the gambling cine artist and her mother happened
in the following manner, as per the prosecution version: The mother and the G
daughter, while living in their apartment at Anna Nagar, Chennai, wanted to
employ a driver, a watchman and a cook. They advertised it in the newspaper.
A-2 Lakshmi Narasimhan responded to the advertisement and he was eventually
appointed as the watchman of the residential apartment of the two ladies.
Within a few days A-1 Jebaraj was appointed as driver and later A-3 Ganeshan
was employed as a cook. The deceased were apparently wealthy and they had H
436 SUPREME CO,URT REPORTS (2001] SUPP. I S.C.R.

A cash and jewellery in good quantity. They negotiated for purchase of a house
for about fifteen lakhs of rupees. When A-I Jebaraj overheard the said
dialogue he presumed that the ladies could be having the cash with them to
buy the hou.se. Then a wicked idea burgeoned in his mind that he should grab
the said cash in whatever manner possible. He thought of killing the two
B ladies as an easier measure for collecting the cash and jewellery. A- I Jebaraj
disclosed this idea to A-2 Lakshmi Narasimhan @ Kutty and A-3 Ganeshan
and sought their help to achieve the target. All the three conspired together
and orchestrated a plan to carry out the operation of murdering the unarmed
ladies and to share the booty among themselves after accomplishing the
murder. A-1 Jebaraj purchased three knives and kept one with him and gave
C the other two to his co-conspirators.

On the morning of 15.10.1986 the three accused jointly executed the
designed scheme of killing both the ladies. First they killed the mother and
when the daughter ran to see what was happening to her mother she saw the
very persons they employed for their security and help turned out to be their
D slayers. They pounced on the damsel and killed her too by stabbing her with
knives. The killers removed quite a number of movables from the house
though they failed to trace out the huge cash stashed away by the wealthy
victims.

E A-I Jebaraj was arrested on 24.10.1986, A-2 Lakshmi Narasimhan was
arrested on 3.11.1986. As A-3 Ganeshan disappeared to unreachable places
the police had to cast the net far wide and tenaciously persisted to catch him.
Though delayed the police ultimately succeeded in 1988 to nab that absconding
culprit. Many articles, including valuables, were recovered at the behest of
the arrested persons. The confession of A-2 was recorded by a judicial
F magistrate on 24.11.1986. A-3 also confessed to the magistrate which also was
recorded purportedly in terms of Section 164 of the Code of Criminal Procedure.
However, both of them retracted from the confessions during the trial of the
case. Nevertheless, the Sessions Judge relied on those confessions, among
other evidence, and reached the conclusion that the prosecution has proved
G the guilt of the three accused beyond all reasonable doubt.

Learned Judges of the Division Bench of the High Court while acquitting
A-2 (Lakshmi Narasimhan) found that the judicial confession was fraught with
flaws and hence they did not rely on the confession. According to the
Division Bench, the materials brought on record by the prosecution for
H corroborating the confessions were not acceptable and the extra judicial
STA TE OF TAMIL NADU v. KUTTY@ LAKSHMI NARASIMHAN [THOMAS, J] 437
confessions attributed to A-1 and spoken to by PW-30 was frowned at by A
the High Court.

Shri S. Balakrishnan, Senior Advocate who argued for the State
contended that the High Court approached prosecution evidence in a very
pedantic manner and laboured to find out the drawbacks in investigation and
wrongly sidestepped the confessions made by the accused persons. The B
reasonings advanced by the Division Bench, according to the learned senior
counsel, are totally unsustainable if not flippant. According to the learned
counsel, the extra judicial confession spoken to by PW-30 should have been
acted on. He contended that acquittal of the appellant resulted in a .grave
miscarriage of justice.
c
Shri K. Vishwanathan, learned counsel for A-2 Lakshmi Narasimhan
addressed elaborate arguments garnering as much force as possible. He
pleaded for maintaining the order of acquittal. He cautioned us by citing
judicial precedents that the approach of a court while dealing with an appeal
against acquittal was always different from an appeal against conviction. D
Learned counsel took pains to convince us that apart from the inherent
weakness of extra judicial confessions by the very nature of that evidence,
the testimony of PW-30 itself would show that the confession spoken to by
him as attributed to A- I is a very fragile piece of evidence. He also argued
that recovery of the articles did not connect the second accused, particularly
in the light of the evidence of the independent witnesses examined by the E
prosecution.

There seems to be no dispute regarding the fact that Indira Kumari and
her daughter Rani Padmini were murdered in their apartment and quite possibly
on the morning of 15.10.1986. We are skipping that aspect because prosecution F
has successfully proved the involvement of A-1 Jebaraj with the murders of
the two ladies as he was convicted and sentenced for it by two courts after
concurrently holding that the prosecution has proved the case against him
beyond all doubt and that verdict became final. Hence the only question now,
in this appeal, is whether A-2 Lakshmi Narasimhan had also joined A-1 Jebaraj
in murdering the two ladies. G
If the confession recorded by the judicial magistrate as from A-2 cannot,
for any reason whatsoever, be used by us, it would be an exercise in futility
for the State to endeavour for reversal of the order of acquittal with the help
of the remaining evidence. So we would first consider and decide whether we
can rely on that confession. H
438 SUPREME COURT REPORTS (2001] SUPP. I S.C.R.

A The judicial magistrate who recorded the confession of the second
accused in Ext.P-66 had written down the statement running into several
pages containing very many vivid details. The narration included how A-2
started working as a watchman in the house of the deceased, how A-I Jebaraj
injected the idea of taking away the huge amount of cash kept with the
-
deceased. how the three accused jointly prepared the plan to kill the two
B ladies to pave the way for burglary and how they executed their designed
scheme, etc.

Learned Judges of the High Court declined to act on the said confession
mainly for two reasons. First is that the confession was retracted by the maker
C thereof and second is that the recovery of articles was made prior to the
confession. We may state at the outset itself that both reasons are too
insufficient for over-ruling the confession.

It is not the law that once a confession was retracted the court should
presume that the confession is tainted. As a matter of practical knowledge we
D can say that non-retracted confession is a rarity in criminal cases. To retract
from confession is the right of the confessor and all the accused against
whom confessions were produced by the prosecution have invariably adopted
that right. It would be injudicious to jettison a judicial confession on the mere
premise that its maker has retracted from it. The court has a duty to evaluate
the evidence concerning the confession by looking at all aspects. The twin
E test of a confession is to ascertain whether it was voluntary and true. Once
those tests are found to be positive the next endeavour is to see whether
there is any other reason which stands in the way of acting on it. Even for
that, retraction of the confession is not the ground to throw the confession
overboard.
F
We are unable to understand how a judicial confession would become
bad by reason of the fact that articles belonging to the victims were recovered
prior to the making of the confession. That aspect, instead of vitiating the
confession, could be a factor in favour of the voluntariness of the confession.
When the culprit finds that the articles concealed by him are all disintered it
G is possible that he might feel that there is no use in concealing the facts any
more. Then he may desire to make a clean breast of everything to any person
or authorities.

In the present case, Shri K. Vishwanathan pointed out that A-2 Lakshmi
Narasimhan was in police custody for a long time i.e. from 3.11.1986 to
H 17.11.1986. Learned counsel contended on its premise that A-2 would have
STATE OF TAMIL NADU v. KUTTY@LAKSHMI NARASIMHAN [THOMAS,J.] 439

been pressurised, if not tortured, by the police to make the confession before A
the magistrate. This contention is made by overlooking certain broad facts.
During the time A-2 was in police custody he was produced before the
magistrate on three different occasions (5th, 11th and 17th of November 1986).
On none of those occasions did A-2 tell the magistrate that he wanted to
make a confession. If there was any pressure on him to make a confession B
it would have been during the time when he was in police custody. Why the
police did not do on any of those three occasions when he was produced
before the magistrate from police custody would tell heavily against the said
contention of Mr. Vishwanathan.

From 17.11.1986 onwards A-2 was not in police custody as the magistrate C
remanded him to judicial custody. It must be remembered that the confession
was made by him only on 24th November 1986. Before recording the confession
the magistrate asked him repeatedly whether he wished to make the confession
on his own or whether he was pressurised by the police, etc. In this context
it must be pointed out that the defence counsel have not pointed any finger
on the magisterial procedure adopted as precautionary measures before the D
confession was recorded. Of course a very frail point has been raised that the
magistrate did not inform A-2 at the initial stage that he was a magistrate. Ext.
P.66 shows that A-2 was well aware that he was in the court of a magistrate.
We perused the preiiminary questions and answers recorded by the magistrate.
There is no scope for any contention that A-2 was unaware that the person E
who recorded the confession was a magistrate.

Shri Yishwanathan then contended that A-2 in his confession did not
own that he also stabbed at least one of the two deceased. That does not
matter much, because a reading of the confession as a whole leaves no doubt
that A-2 has admitted the full length role played by him in association with F
the other two assailants for murdering the two ladies. !-lence the very fact that
he did not say in so many words that he also inflicted one sta~ injury on the
deceased is of no consequence. In a way this aspect is a further assurance
to us that his confession was not what the police wanted him to say to the
magistrate. G
There is no reason to think that A-2 had been prevailed upon by any
extraneous influence to make the confession. The judicial magistrate who
heard the confession certified that in his opinion the accused made the
confession voluntarily. That satisfaction could be disrupted only if there are
sturdy reasons. Even regarding the truthfulness of the version given by the H
440 SUPREME COURT REPORTS [200!] SUPP. l S.C.R.

A accused in the confession it is open to the court to ascertain whether there
are other materials to lend assurance to the court about the truth of it.

One of the items of evidence put forward by the prosecution for lending
such assurance is the judicial confession made by the third accused before
the magistrate on 8.6.1988. Though the trial court acted on it as voluntary the
B High Court had declined to do so. Learned counsel for second accused
contended that the High Court rejected the confession made by the third
accused and acquitted the third accused which remains undisturbed, though
for other reasons. Hence he argued that it is not proper for the Supreme Court
to act on the confession made by the third accused for the purpose of
C corroborating the confession of the second accused. We feel that the said
contention has some force. Hence we refrain from using any part of the
confession made by the third accused for the purpose of corroboration of the
confession made by the second accused.

The extra judicial confession made by first accused to PW-30 is another
D material which has been advanced by the learned senior counsel for the State
for using it as a corroborative piece. But that extra judicial confession is
studded with many infirmities, the most important among them is that PW-
30 admitted that while making the extra judicial confession A-1 was in a highly
inebriated condition. As we have no other material to gauge the level of his
E inebriation at a time he made his confession to PW-30 we choose the safer
course of not using that confession as a piece of corroboration for the
confession made by the second accused.

But there are quite a number of other circumstances which would lend
assurance to the court about the facts contained in the judicial confession
F made by the second accused. The very fact that he was working as a
watchman employed by the ladies remains undisputed. If so, his disappearance
from the scene on l 6.10.1986 onwards and his absconding till 3.11.1986 are
circumstances effectively corroborating the confession. A large number of
articles belonging to the deceased were recovered at his instance. His finger
G impression was found on the door of the kitchen of the house. If the finger
impression of the cook was found on the door of the kitchen we would have
declined to use it as a piece of corroboration in the present case, because of
the role which a cook has to perform in th~ culinary wing of the house. But
the place of a watchman of the house is normally outside the house, if not
outside the gate of the compound itself. How could the finger impression of
H the watchman get affixed inside the kitchen. In the absence of any explanation
STA TE OF TAMIL NADU v. KUTTY@ LAKSHMI NARASIMHAN [THOMAS, J.] 44 J
as to how the finger impression of A-2 had 11ppeared on the door of the A
kitchen of the house we can safely treat that also as an incriminating
circumstance against that accused.

Shri Vishwanathan, learned com:isel contended that PW-30, who is cited
to support the evidence of recovery of articles from A-2, had in fact pointed
out A-1 in the court as a person from whom the articles were recovered. It B
seems that High Court was also persuaded to give weight to the said
contention. In our perception the said contention has no force at all. PW-33
who attested the Memo prepared by the investigating officer at the time of
recovery cannot be given any special credence while he disowned the very
document he attested. Perhaps PW-33 would have committed a mistake in the C
court when he stretched his index finger at the accused, if it was not a mistake
committed by the court itself while writing down the deposition. It had
escaped the notice of the Public Prosecutor. Otherwise we have no reason to
think that the Public Prosecutor would have omitted to correct it, if not to
declare the witness as hostile. As a matter of fact A-1 could not have been
present at all when M0.41 was recovered by the investigating officer. At any D
rate, we are not inclined to give much importance to an accidental error
committed either by PW-33 or by the court regarding mentioning A-1 instead
of A-2 as the person connected with M0.41. We cannot overlook the sturdy
evidence of the investigating officer who effected the recovery and that
evidence is supported by the document contemporaneously prepared by him E
and proved in the case.

The upshot of the above discussion is that the High Court has gone
seriously wrong in interfering with the conviction passed by the trial court
regarding A-2. We are of the definite opinion that the High Court should not
have sidelined Ext.P-66 judicial confession. F
In the result, we allow this appeal and set aside the order of acquittal
passed by the High Court and restore the order of conviction passed by the
trial court. However, we think that the lesser sentence of imprisonment for life
is sufficient to be imposed on A-2 for the offence under Section 302 read with
Section 34 of the !PC. Hence we sentence him so. We direct the trial court G
to take prompt steps to get second accused (Lakshmi Narasimhan @ Kutty)
and put him back in jail for undergoing the sentence imposed on him now.

v.s.s. Appeal allowed.

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