1973 P Cr (PLP)

MUHAMMAD YUSUF S ARAF, J.-Having been found guilty of the murder of his wife Mst. Safaida Begum on the 23rd of June 1970 and sentenced to life imprisonment under section 302 by the Sessions Judge, Rawalakot, the appellant has come in appeal to this Court. A soldier by profession, the appellant married the deceased about 11 years back. On the 21st of June 1971, the appellant came on two months' leave and went straight to the house of one Mohammad Ismail who told him that his wife and brother's wife were not treated well and may be separated. Next day, there was an argument between them and on the 23rd she went to her husband's vacant but situate in the midst of a forest slightly more than a mile away. The appellant went in her search and on learning from P. W. Fazal that she had gone towards the forest, followed her and on finding her in the house sitting on a cot, he is alleged tee have throttled her and tied her parandah around her neck and after tying her hands with his muffler to the cot and wrapping a blanket around her face and stomach, abandoned her in this ate. He then locked the house and went away. Late afternoon the same day, a boy Faiz Mohammad, P. W. found a dopatta and a pair of black shoes admittedly belonging to the deceased abandoned on the bank of a pond. He reported the discovery to his uncle Mukhtar Chowkidar P. W. who sent him back alongwith two elderly boys Mohammad Khan and Maqbool Hussain to fetch the said articles. The matter could not be pursued further as by now darkness seems to have spread its wings; so on the next day a thorough search was conducted in the pond by Mohammad Aslam P. W., Mohammad Zaatan and Sabi Fauji in the presence of the village community. According to the map prepared by Tehsildar under orders of this Court, the pond is nearly 50 feet long and 44 feet wide. At the deepest point it is about 7 feet 6 inches deep. It is at a distance of about 198 yards from the jungle hot. On the 25th evening, Sharif P. W. informed the said Chowkidar that her dead body was seen floating in the said pond; he rushed along with some people and after seeing it with his own eyes, reported to the Police Station, vide Eh. P. A. a brief summary of these facts. He also wrote that it way, not known whether the woman had committed suicide or was thrown into the pond after being killed. The police reached there on the 26th and brought out the dead body lost-moment eras performed on he 27th of June, say about a 100 hours after death. Arrested on the 28th of June after receipt of the medical report which categorically ruled out the possibility of drowning, the appellant was sent to the judicial lock-up on 7th July lay S.

13. M., Pallandari who recorded his confession on the next. According to the confession, on the 22n of June he had told her to live separately from his father to which she replied that she would neither live separately nor with his father and would rather do what she liked. Upon this, the appellant slapped her and also gave her a sota blow; next morning she left a Iota of water near his cot for ablutions and it was subsequently found that she had disappeared. The appellant went to the house of his father-in-law Faiz Mohammad P. W. to enquire after the girl but he expressed ignorance and resultantly they grappled with one another and his father-in-law gave him. two sota blows. He then returned back and was told by Fazal P. W. that he had seen his wife in the morning passing that way. The appellant then goes to the house situate in the jungle and there he found his wife sitting on a cot; the appellant gave leer a blow with the hockey he had and pressed her neck with his hands sad tied her parandair around it; he then tied her hands to the cot with his murder and wrapped a blanket which was already in the house, around her lace and stomach and leaving her in this position came out of the, house, locked it and went away. He removed her dopatta and shoes and left them on the bank of the pond, from where he went to his home and told his fakher Jalat and a maternal cousin's son Noor Mohammad P. W. that he had sighted her d6patta and shoes at the pond. He admits that a search for the body in the pond was made on the 24th. He then proceeds to reveal that on the night falling between the 24th and 25th of June at about 10 or 11 p. m., he unlocked the house and found his wife m the same condition in which he had left her; he then lifted tine dead body and dropped it in the pond where it sank in his presence and he then went to his home. He further admits that on the 25th the dead body was found floating in the pond and attracted a number of people from the village. He has further said that he killed his wife on account of the quarrel that he had with his father-in-law and did so whilst lost of self-control and that he was extremely sorry for having killed his wife as she was innocent. (Evidence omitted for purposes of report). The prosecution case basically rests upon the confession of the appellant; the defence case is that the confession which was retracted at the trial, was involuntary and extracted through violence and hence liable to be excluded. In any case, the defence argued, corroboration in material particulars was essential in a case of retracted confession and there being, according to their lights, no such corroboration in the present case, the appellant was entitled to an acquittal. The word 'confession' has been derived from the Latin word 'confessio' which means acknowledgement of a crime. The Latin, maxim 'confessio facta in judicio omni probatione mojor esi' meaning that a confession made in judicial proceedings is of greater force than all proof shows that it has always received great weight. It is so because if a person accused of an offence inculpates himself and thus makes a statement not only against his own interests but one that is more likely to take away his life or liberty, apparently there seems no reason why it should not be acted upon, because if as a consequence he is to suffer, the visitation has been brought about by himself. However, with-the growth of lave the voluntary character of a confession which was always inherently there, began to be stressed with greater emphasis and now it is a universally accepted rule that a confession, in order to be acted upon, must not only have been voluntarily made, but must also be true. If a confession is not voluntarily made, it is deprived of that sanctity which persuades a Court of justice to act upon it: but despite being voluntary, it may still not be true because a son may come forward with a false confession in order to save his father or mother from the consequences of having committed an offence and similarly a father may always come forward and make a confession implicating himself in an offence which actually may have been committed by his son. I have come across several cases of latter type during my practice at the Bar. That is why it has been laid down that even when it is voluntary, it must also be true. It was held in A I R 1935 Rang. 491 and P L D 1962 Pesh. 91 that there was a presumption under section 80 of the Evidence Act about the voluntary character of a duly recorded confession and that the burden of proving involuntariness lay on the accused. In the present case, there is no plea of inducement or promise, but there is an allegation that the penis of the appellant was kept plastered for three days by the police in order to compel him to make a confession. Without going into the question as to whether a normal healthy man could not remove the plaster if and when he wished to do so and whether it was possible for such a man to withhold urination for as long as 72 hours, the allegation ought to be rejected as an afterthought because apart from the fact that it was not brought to the notice of the S. D. M. who recorded his confession on the 8th of July; it was not even put to Ahmed Saeed, the Sub-Inspector or Abdur Razzaq, the Investigating officer who have been cross-examined at great length. We hear of it for the first time on the 20th of May 1971 when the accused was examined under section 342, The reason why confessions, when retrated, are approached with suspicion by Courts is described by Cave, J. in R. v. Thompson ((1893) 2 0 B 12) (quoted in the Law of Confessions by Mr. Mitter at page 353) in the following memorable words: "It is remarkable that it is very rare occurrence of evidence of a confession to be given when proof of the prisoner's guilt is otherwise clear and satisfactory, but when it is not clear, the prisoner is not infrequently alleged to have been seized with the desire, borne of penitence and remorse, to supplement it with a confession-a desire which vanishes as soon as he appears in a Court of justice." After all, why should a criminal make a confession to ensure his own destruction? It disturbs the mind of the Judge because the instinct of self-preservation and the desire to live is so essential ly human that it is abnormal of him to invite self-annihilation but then man also commits suicide which shows that there ate moments when life does become a burden he wishes to get rid of. May be he is deeply religious because it is not necessary that a person who commits a crime or be a sinner, may not be deeply religious; may be he is not inherently a depraved man or has committed the crime impulsively or under provocation, or has killed a close relation or a friend with whom he is and has been too deeply attached. It is, therefore, possible that such an offend er comes under the stress of moral pressure brought about by his own conscience leading to his confession-either to unburden him self or to invite punishment as a way out to rise in his own estimation, but with the passage of time, the horrible spectacle of a fellow human being helplessly dying under his superior force becomes dimmer and the instinct of self-preservation gains an upper hand; he then tends to overcome qualms of his conscience by a hundred right or wrong-make-believe explanations that after all hr was right; the desire of good things in the world again become attractive; the company of hardened criminals in jail who freely dispense advice feeling "duty bound" by "community interests" to do so as observed by me in the over-crowded jails at Montgomery and Pindi while detained in 1958 in connection with the Kashmir Liberation Movement, and the technical advise of legal advisers makes him stage a volts-face. So merely because a confession is~ retracted, it cannot be concluded that it was necessarily involuntary. It was held in A I R 1936 All. 470 "Much has been said about the difficulty of understanding, why a man should at one time, make a confession and after wards retract it. This is not a question of law but a question of human psychology and of experience. It seems to us that it is not really at all difficult to understand that a man who has committed a murder and who knows that all his neighbours and friends are well aware that he must be the guilty person should not have the hardihood to continue denying his guilt when he is confronted by persons who are making enquiries from him. We think that it would probably be much more difficult in these circumstances for a man to maintain his innocence than for him to confess his guilt. Afterwards, when he has time to consider his position and when he is removed from his everyday sur roundings and possibly advised by others that it is foolish of him to confess his guilt, it is natural that he should retract his confession." Dealing with the question as to why confessions are made, Mr. N. D. Basu has quoted the following passage from Wigmore's Principles of Judicial Proof, page 390: "The psychology of the true confession has not yet been carefully studied. No doubt more than one kind of motive is found. But it is here worthwhile to point out that in the nor mal person (not habitual criminal), the consciousness of guilt of a serious crime, plus nervous strain of avoiding detection, lead naturally to a confession upon being detected and arrested. The process is one of a suddenly relaxed inhibition upon doing a heinous act, the person is conscious of an emotional shock at violating human morality and at finding himself in danger of punishment and ruin upon discovery. He therefore now inhibits every form of conduct that could reveal his guilt. The nervous strain of these multiple inhibitions cumulates hourly and daily. It completely dominates his consciousness. If finally (and as usual suddenly) the words are heard ('I arrest you for the murder of X'), he realises that efforts at concealment are now futile--especially if facts are stated to him which show that ample proof has been obtained. A flood of normal consciousness returns. A fall nervous relief is felt-equal to the physical relief given by a purgative given after long constipation. There is no longer any strain of inhibition. And the reaction is such that now it would be a relief to tell all. The inability to speak freely is now succeeded by a plus desire to speak freely. In this emotional condition, the guilty person wants to confess his deed. The condition, however, lasts only for a short time. The normal coolness of nervous soon returns. Thoughts of Escape from the penal consequences by disputing guilt at the trial are suggested by friends and lawyers. No longer is the confessional impulse felt. The psychic moment has passed." According to several rulings the answers to the following questions may determine whether it was voluntary or not? (1) Reason given by the accused for making as well as for retracting it. (2) The character and duration of his custody. (3) The nature and quantum of proof which was available before he confessed. (4) Whether he was easily susceptible to influence? We have already seen that the reason given for retraction, namely, that it was extracted through torture, was incorrect. As regards the duration, it is true that the judicial confession was made on the 11thday of his arrest but that should make no difference particularly in the present case for the following reasons: (1) The suspicion about a late confession proceeds on the assumption that a confessing criminal must have necessarily got a feeling of remorse immediately after the commission of the offence. In my humble opinion, this assumption is not of universal application because a criminal may not necessarily get a feeling of remorse and penitence immediately after the commission of the crime so as to be ready with a confession at the time of his arrest. Theoretically speaking, the confession emerges only when a criminal gets the feeling that he has done, a wrong. His mind must naturally be the scene of a fierce struggle between the forces of good and evil, the feeling of remorse versus the in stinct of self-preservation; whether he was not justified in doing what he did. The emotions may not erupt at once; the anger or the feeling of self-righteousness may not die down immediately; it may take some time and the feeling of guilt as brought about in the instant case by emotional memories of the past may surface up only gradually and even when surfaced, may still take time to seize his conscience to the extent where silence becomes unbearable. (2) Another reason for treating a retracted confession with suspicion is that some police officers in order to cover up their own inefficiency in not tracing real culprits may have caught hold of an innocent man and as a logical consequence, compelled him to make a confession. Again this proceeds on the assumption that ineffciency is punished while the experience that it is very seldom now that we hear of any action taken against personnel of the police for inefficiency. On the other hand, not only in this department but elsewhere too, efficiency and promise are generally treated as a disqualification. With the stupendous growth of communications and information media as well as the equally stupendous growth of political awakening, there has been a corresponding decrease in the fear and authority of the police force. Therefore, it will be unfair to presume that merely because a confession has not come soon after the arrest of a prisoner, it must have necessarily been extracted by torture. On the other hand, I have observed that a large number of criminal cases fail either because they con tained within themselves deliberately planted seeds of acquittal or because the police did not follow them. Gone to the wind are the days of the hated British Raj when every S.H.O. was accountable for failure of a criminal case from his thana, Therefore, unless there is some material before the Court from which torture or undue influence may be inferred, it would be dangerous to make such an inference merely from the fact that it was not made immediately after the prisoner's arrest by the police. (3) In the present case, the police reached the village on the 26th and after taking out the dead body from the pond, sent it to Pallandari for post-mortem; the area is hilly for most part, without roads. The post-mortem was performed on the 27th and it was on the 28th morning that the appellant was formally arrested. It is true that he was under police surveillance from 26th, but since there was no opinion by the doctor by then, the police did not arrest him. The Sub-Inspector reached there on the 30th and returned back on the 3rd. The Investigating Officer as well as the accused left the village on the 5th of July. Till then they remained there. 5th was a gazetted holiday. On the 6th, he was produced before the Tebsildar with a request for a further police remand and the accused was presented before the S.D.M. on the 7th in order to be sent to the judicial lock-up as he wanted to make a confession. Next day he was produced before the S.D.M. who recorded his confession. We have thus seen that the appellant remained with the police in his own village among his own people. It is impossible to believe that if the appellant's private part had been plastered there, the news could have remained secret. The area is inhabited by a martial race. Had such a thing taken place in the village, certainly some people could be produced in defence to testify the same. This could not have been done in the thana at Pallandari because there he admittedly remained for less than 48 hours. By the date he made the confession, it had been established that she had been murdered and had not committed suicide; the statements of Noor Ahmed and Fazal had been recorded and re coveries had been made at his instance; his blood-stained shirt had passed into the hands of the police. If the confessant is a weak, wretched creature, easily suscep tible to influence, the Court would not be persuaded to rely upon his confession, but in the instant case he is a soldier of eight years' standing. In view of his tough training, it is hard to be lieve that he could by threats or violence be induced to make a statement against his very existence. On the other hand, it is more likely that fresh from his units and with 8 years' service, he may have chosen to speak the truth in a soldierly fashion. One more test to determine its voluntariness or otherwise is the degree of relationship between the deceased and the accused or the motive for killing. If a man kills an enemy, perhaps he may have no feeling of remorse at all. If he had grave provocation such as actually seeing his wife in a compromising position with another person, he may even then make a confession despite having no feeling of remorse because he may do it out of pride-to demonstrate to the world that he was a man of great honour. However, if a man kills his wife, as in the present case, for a petty matter and for reasons not connected with conjugal fidelity, it is bound-yes bound, I may say with emphasis, to grieve him severely because of the emotional attachment he had with her, the loyalty and service she had rendered him, the association she had displayed in his joys and sorrows-the place of pride she had given him in all her thoughts and doings-in short, the way she had destroyed her own individuality and merged it in his own to the extent that she had even taken up his name-it is absolutely natural in such circumstances to weep, to lament, to have been seized with a sense of guilt and even the desire to get punished. The question to be considered now is as to whether in view of its retraction, corroboration was necessary and if so, to what extent and further whether there is such corroboration available in the present case. There is no rule of law that a retracted confession cannot be believed unless it is corroborated by other evidence. There are several cases where the only evidence against the prisoner was his confession and the same was relied upon for his conviction. Reference may be made to (i 867) 8 W R Cr. 38, I L R 39 Cal. 855, (1906) 2 Ph. W R Cr. 64 quoted in the Law of Confessions by Mr. V. ' Mitter at pages 343 and

345. It was held in Mott Ram v. R. ((1923) 24 Cr. L J 904) "The law regarding the attitude which Courts should adopt towards a retracted confession is not really in doubt. Some early rulings of the Madras High Court laid down a somewhat inelastic rule that a retracted confession must be supported by independent reliable evidence corroborating it in material parti culars. That Court has since followed other High Courts in holding that it cannot be laid down as an absolute rule of law that a confession made and subsequently retracted by a prisoner cannot be accepted as evidence of his guilt without independent corroborative evidence. As remarked by the learned com mentators, Woodroffe and Ameer Ali, upon the Law of Evidence in British India, 'the weight to be given to such a confession must depend upon the circumstances under which the confession was originally given and the circumstances under which it was retracted, including the reasons given by the pri soner for his retraction.' The credibility of such a confession is in each case a matter to be decided by the Court according to the circumstances of each particular case, and if the Court is of opinion that such a confession is true, the Court is bound to act, so far as the person making it is concerned, upon such belief. The use to be made of such a confession is a matter of prudence rather than of law." Thus although the rule of law is that a confessant can be convicted on the basis of his confession alone even when retract ed, provided it was, to the satisfaction of the Judge, voluntarily made and true, in practice the Courts have looked for corrobora tion to satisfy themselves that it was really true and voluntary. Therefore, the rule of prudence requiring corroboration in such a case has so consistently been followed that although technically it is not a rule of law, practically it is no less sanctimonious. The anxiety of the Courts in the matter is quite natural, but the tendency displayed at times to treat confessions as something like a "forbidden fruit" doesn't seem to be wholly justified. While there is no denying that a tendency--in the investigating agency to secure confessions does exist, it is equally undeniable that there also a tendency-no less menacing for-the administration of justice-to retract or get retracted even genuinely made confessions; the Court has, therefore, to strike a balance which cannot be done by tending to be over-scrupulous. In this connection, the following observations of Parke, B in the leading English case on the reject, R. v. Baldry ((1852) 2 Den. 430) quoted by Cross in his Evidence at page 440, may be kept in mind: "In order to render a confession admissible in evidence, it must be perfectly voluntary; and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority, vitiates a confession. The decisions to that effect have gone along way I think there has been too much tenderness towards prisoners to this matter Justice and commonsense have too frequently been sacrificed at the shrine of mercy." The question now arises as to what sort of corroboration is needed in such a case? This point has been brought out by Govinda Menon, J. of the Indian Supreme Court in P L D 1958 S C (Ind.)

254. The learned Judge held Though under section 133 of the Evidence Act a conviction is not illegal merely because it proceeds on uncorroborated testi mony of witnesses, illustration (b) to section 114 lays down that a Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such .a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another. In such circumstances it is absolutely necessary that what he has deposed must be corroborated in material particulars. In con trasting this with the statement of a person making a confes sion who stands on a better footing, one need not find out when there is a retraction whether the earlier statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object the corroboration is sought for. Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accom plice and, therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confes sing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition the Court must feel that the reasons given for the retraction in the case of a confession In this case, the only corroboration available and relied upon was the unexplained presence of human blood on two articles re covered from him. It was deemed to have been the blood of the deceased. In I L R 19 Mad. 482, borrowing of a gun on the night of murder and the statement of a witness that they had pro ceeded together to the house of the boy to borrow it, was treated as sufficient corroboration. In 1929 Born.327, evidence of a witness that he had seen the accused including the two confessants in the temple on the evening of the night of dacoity (with murder). was considered sufficient corroboration. In 1929 Oudh 381, recovery of a piece of blood-stained rag although the case was one throttling, in A I R 1936 All. 470, recovery of a blood stained gandasa and in P L D 1961 Kar.197, recovery of two blood-stained hatchets were treated as sufficient corroborative, evidence. In P L D 1960 S C 313, a retracted confession was, believed even against a co-accused as there was circumstantial ovi4 dance to support it. In the instant case there is convincing circumstantial evidence as detailed below (1) The woman was not seen after she had gone to the forest but; on the other hand he was seen going there after her and also seen coming back alone. How then did these articles reach the bank of the pond ? Being the first to "see" them, could be innocent, but the failure to remove them, the failure to take any steps whatsoever for her search and the failure to report the "find" to anyone except his father and maternal uncle's son, Noor Mohammad P. W. lead to the conclusion that he it was who placed them there. There is no explanation from where he got them and why he put them there? (2) A petty quarrel had preceded the crime. Had he not murdered her, the "finding" of dopatta and shoes at the pond must have naturally led him to believe that she had jumped into the pond and committed suicide. In such a case he would have raised hue and cry and attracted the whole village; a soldier, he might have jumped into the pond himself and taken whatever steps he could to trace the dead body, but he chose the abnor mal course of retiring to the comforts of his home and sleep over the matter. (3) The pond was thoroughly searched on the 24th but the dead body was not found. It is merely 50 feet long, 44 feet wide and at the deepest point hardly 7 feet deep. Three young men searched it for two hours, one of them with a pole; at least one of them Mohammad Aslam P. W. was used to swimming in it. The absence of the dead body in it on 24th while the dopatta and shoes were found there a day earlier are mutually exclusive and reconcile only with the confessional statement that he placed the two articles there on 23rd but threw the dead body in it on the night preceding the 25th. (4) His shirt is blood-stained near the shoulder. Serologist says it is human blood. The confessional statement that it was the blood of the deceased contacted when she was removed from the but for being thrown into the pond was sought to be contradicted by the claim that it was the result of bleeding from nose caused by a blow from his father-in-law. Apart from his denial; even Noor Mohammad does not support him on the point. (5) Fazal P. W. corroborates his confessional statement that he saw him going towards the house and asked him as to whether he had seen his wife whereupon he was told that he bath seen her going towards the forest but and that after some time, he saw the accused returning back alone. (6) Scattered pieces of a gani (neck-wear) were recovered from the forest but; so were a cot, a blanket and 'a muter. The key was on the person of the accused when arrested. Then we have the evidence of the doctor who says that death was caused by throttling and categorically repudiates the possibility of being caused by drowning. The learned counsel for the appellant attacked his evidence on the following grounds (1) Drowning cannot be ruled out because sikrns must have` disappeared by the time of post-mortem; and (2) Throttling was not proved. The doctor examined the body about a hundred hours after death and 24 hours after it was taken out of the pond. He states that putrefaction had nit taken place completely; that there was air and that there was no water inside the body. He also conducted a hydro-static test and found no water in the lungs, pieces of which floated in water. The place of occurrence is 5000' high; the but where the body remained for 36 hours is in a forest and the pond where it lay for another 36 hours or so, apart from being at the same height, is fed by a stream coming from higher atti tudes. Thus in these climatic conditions, putrefaction process was bound to be slow. The body was seen floating on 25th and when taken out on 26th, it was still floating. In cases of drown ing, the air is, expelled .by water which leads to drowning and through the process of putrefaction, water is expelled by gases which makes the body lighter and this is how it comes to the surface and floats. Thus the presence of air, the absence of any quantity of water plus the incomplete state of putrefaction rule out the possibility of death by drowning. According to Taylor, recent experiments have shown that even if some water is found In the stomach, it doesn't rule out the possibility of the person having been killed and then thrown into the water. Strangulation is defined by Modi as a violent form of death resulting from constriction of the neck by means of a ligature without suspending the body. Throttling has been described as a form of strangulation: it is so called when constriction is produced by the pressure of fingers upon the throat. Modi states that it is not essential that there should be marks or, the neck. He records having seen no such marks on the neck of a boy of 15 to 16 years with a dhoti and examined on the next day. In the instant case these signs may not have lasted till the time of examination-nearly a hundred hours. The appellant doesn't say that she died immediately. He says that he pressed her neck with his fingers. Thus greet force may not have been used; her windpipe may not have been fully closed and she tray have taken some time to die. There was a 3' x 4' contusion mark on her neck and the confessional statement is that he gave her a blow with a hockey-stick. As he doesn't name any particular part of the body for the blow, I see no reason why it cannot be held to be this very injury as there is no other injury on her person. Thus the medical evidence, far from being contradictory, is fully corro borative of his confession. I, therefore, hold that the confession made by the appellant, though later retracted, was voluntarily made and is true and that there is sufficient corroboration of its being true. The appellant has already received a lenient sentence from the Sessions Judge. I therefore, see no force in this appeal which is hereby dismissed. KH. MUHAMMAD SHARIF,C. J.--I agree. Appeal dismissed.