# KANDA PADAYACIDaliar KANDASWAMY v. STATE OF TAMIL NADU

- **Citation:** [1972] 1 S.C.R. 450
- **Court:** Supreme Court of India
- **Decided:** 1971-08-27
- **Case number:** Criminal Appeal No. I 9 of 1971
- **Bench:** J. M. Shelat, I. D. Dua, S. C. Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kanda-padayacidaliar-kandaswamy-v-state-of-tamil-nadu-5374
- **Pages:** 7

## Headnote

Evidence Act (1 of 1872), ss. 21 and 26-Statement to doctor admitting incriminating fact-Made by accused while in police custody-If confession and hence irrelevant or relevant as admission.
The conviction of the appellant by the Sessions Court for the offence
of murder was confirmed by the High Court. The evidence was circum·
stantial. One of the circumstances was a statement by the appellant, while
in palicc custody, to the doctor, which established the presence of the
appellant in the cleceased's room at about the time of death and together
with other circumstances, that he a!One caused the death of the deceased.
On the question whether the statement was a confession and hence
irrelevant under s. 26 of the faidence Act, 1872.
HELD : A confession has to be a direct acknowledgement of the guilt
A
B
c
of the offence in question and such as would be sufficient by itself for conD
viction.
If it falls short of such a plenary acknowledgement of guilt, it
would not be a confession even though the statement is of some incriminating fact which, taken along with other evidence, tends to prove the guilt
of the accused.
Such a statement is only an admission and not a confes·
sion. [454 F-G]
Palvinder Kaur v. Punjab, [1953] S.C.R. 94, Faddi v. Madhya Pradesh, [1964] 6 S.C.R. 312 and A. Nagesia y, Bihar, A.I.R. 1966 S.C.
E
119, 123, followed.
Pakala Naravana Swami v. The King, 66 I.A. 66. applied.
Observations of Shah, J. in U.P. v. Deoman Upadhyaya,
[1961]
S.C.R. 14, 21, explained.
Queen Empress v. Nana, (1889) I.L.R. 14 Born. 260, overrukd.

## Text

450
KANDA PADAYACIDaliar KANDASWAMY
v.
STATE OF TAMIL NADU
August 27, 1971
[J. M. SHELAT, I. D. DUA AND S. C. ROY, JJ.J
Evidence Act (1 of 1872), ss. 21 and 26-Statement to doctor admitting incriminating fact-Made by accused while in police custody-If confession and hence irrelevant or relevant as admission.
The conviction of the appellant by the Sessions Court for the offence
of murder was confirmed by the High Court. The evidence was circum·
stantial. One of the circumstances was a statement by the appellant, while
in palicc custody, to the doctor, which established the presence of the
appellant in the cleceased's room at about the time of death and together
with other circumstances, that he a!One caused the death of the deceased.
On the question whether the statement was a confession and hence
irrelevant under s. 26 of the faidence Act, 1872.
HELD : A confession has to be a direct acknowledgement of the guilt
A
B
c
of the offence in question and such as would be sufficient by itself for conD
viction.
If it falls short of such a plenary acknowledgement of guilt, it
would not be a confession even though the statement is of some incriminating fact which, taken along with other evidence, tends to prove the guilt
of the accused.
Such a statement is only an admission and not a confes·
sion. [454 F-G]
Palvinder Kaur v. Punjab, [1953] S.C.R. 94, Faddi v. Madhya Pradesh, [1964] 6 S.C.R. 312 and A. Nagesia y, Bihar, A.I.R. 1966 S.C.
E
119, 123, followed.
Pakala Naravana Swami v. The King, 66 I.A. 66. applied.
Observations of Shah, J. in U.P. v. Deoman Upadhyaya,
[1961]
S.C.R. 14, 21, explained.
Queen Empress v. Nana, (1889) I.L.R. 14 Born. 260, overrukd.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I 9 of 1971.
Appeal from the judgment and order dated April 29, 1970
of the.Madras High Court in Criminal Appeal No. 861 of 1969
and Referred Trial No. 69 of 1969.
S. K. Gambhir, for the appellant.
A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by
Shelat, J.
This appeal is against the judgment of the
High Court of Madras by which it confirmed the appellant's conviction under sec. 302 of the Indian Penal Code and the sentence of death awarded to him.
It is founded on a certificate
granted by the High Court under Att. 134(1 )(c) of the Constitution.
F
G
H
A
B
c
D
E
F
G
H
KANDASWAMY V. TAMIL NADU (She/at, !.)
45 I
At the material time the appellant, a widower for sometime,
was living in village Valayamadevi near the house where the
deceased Natesa Padayachi and his wife Meenakshi (P.W. 1)
used to reside.
In course of time the appellant and Meenakshi
developed illi~it intimacy.
The deceased Natesa was serving as
a driver in a rice mill belonging to one Sundaralingam Pillai and
his son Guhan Pillai (P .W. 6).
One afternoon the deceased
returned home a little earlier than usual and found his wife and
the appellant in a compromising position.
A quarrel
ensued
between the deceased and the appellant when the deceased warned the appellant against his coming to his house.
The appellant
retorted that instead of quarrelling with him the deceased should
control his wife.
To prevent the appellant visiting his residence
the appellant and his wife went .to reside in a portion of a
Chatram belonging to his master.
Enraged by this change of
residence by the deceased, the appellant demanded, through one
Govindaraja (P.W. 2), that the deceased should return to him
the presents given by him to his wife. He repeated this demand
about two days prior to the date of the occurrence through
Subharayan (P.W. 5). On July 7, 1969, the appellant visited
the house of the deceased, but P.W. 1 scolded him, whereupon
the appellant told her that she was talking to him in that vain
because of her husband, and that if he were to do away with her
husband she would not be able to withstand him.
On July 10, 1969, Meenakshi went to another village to see
the deceased's brother who was ailing.
The appellant saw her
and her children going. At about 9.30 that night he was in the
tea shop of P.W. 3 when he enquired if the deceased had returned home from the rice mill where he was working. Next morning
P.W. 5 and P.W. 6 found Natesa lying dead with cut injurie8 on
his neck and other parts of his body. Amongst the articles lying
near him, there was a towel which belonged, according to the
prosecution, to the appellant.
The evidence was that the towel
had a mark of the washerman who used to wash the appellant's
clothes. P.W. 6 lodged the first information report at about 7.30
that morning very soon after he and P.W. 5 had discovered the
ghastly rtragedy.
There was no direct evidence to establish as to who was the
assailant of N ates a. But the prosecution relied on circumstantial
evidence, namely, ( 1) that the appellant had a motive to do away
with the deceased as the deceased had come in the way between
him and P.W. 1, (2) that the appellant knew that P.W. 1 and
her children had left the village that morning and the deceased
would be alone in the house, (3) that the appellant had made
enquiries that night to find out if the deceased had returned home
from the rice mill. ( 4) that the towel M.O. 6 belonging to him
452
SUPREME COURT REPORTS
[19'72] 1 s.c.R.
was found lying near the dead body of Natesa which was identified by the washerman as belonging to him, ( 5) that when the
appellant surrendered at the police statio,n his clothes M.O. 7
and 9 were found to have stains of human blood, ( 6) discovery
by the appellant of the aruval M.O. 1, (7)
injuries on
the
appellant, namely, an abrasion on his toe and multiple linear
abrasions 011~his right arm and chest, and ( 8) his stMement to
the Doctor (P .W. 8), to whom the police took the appellant after
his arrest, to the effect that it was the deeeased Natesa who at
about mid-night on July 10, 1969 had caused the injury on bis
toe by biting him.
Both the Sessions Court and the High Court accepted
the
evidence as to these circumstances and found that that evidence
clearly pointed out the appellant as the person who bad caused
Natesa's death, and on that basis found the appellant guilty under
sec. 302.
Counsel for the appellant raised two contentions before us.
The first was that both the Sessions Judge and the High Court
had not properly construed important pieces of evidence and bad
drawn inferences which were not warranted by the facts established by evidence. The second, which was more substantial and requires consideration, was that the statement made by the appellant
before the Doctor (P.W. 8) that it ~
the deceased who bad
caused the injury on his toe on the fafal night was inadmissible
under sec. 26 of the Evidence Act, 1872 as it was made whilst
the appellant was in the custody of the police.
On the first point, counsel took us to the evidence of several
witnesses including the medical evidence and tried to show that
the injuries on the deceased could not have been caused by a
weapon like the aruval, M.O. 1, discovered by the appellant. In
our view, counsel was not able to point out any misconstruction
of evidence either by the Sessions Court or by the High Court.
Equally unsuccessful was his atteinpt to show that the injuries
on the deceased were not capable of being caused by a weapon
such as the aruval, M.0. 1.
The evidence was clear and unambiguous and we find no reason why it could not be accepted by
the Sessions Court or the High Court. The discovery of the
towel belonging to the appellant near the dead body of Natesa the
next ·morning and his statement to the Doctor that it was the deceased who had caused the injury on his toe were sufficient to
clinch his presence in the de~ased's house at about mid-night
on July 10, 1969, a circumstance, together with the rest of the
{;ircumstances, enough to establish a chain leading to the conclusion that he was and could be the only person who had caused
Natesa's death.
To those two circumstances must be added the
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
KANDASWAMY V, TAMIL NADU (She/at, ].)
453
evidence as regards the stains of human blood on his cothes at
the time of his arrest. The first contention raised by counsel,
therefore, must fail.
As regards the second contention, we think that on the strength
of the decisions, both of the Privy Council and of this Court, the
High Court was right in its conclusion that the appellant's statement before the Doctor was properly admitted in evidence and
could be relied upon as an admission under sec. 21 of the Evidence Act, 1872. Nothing was and could be found against the
Doctor to prevent his evidence about the statement made. before
him by the, appellant from being accepted. The only question,
therefore, is whether the st:rtement was inadmissible by reason
of sec. 26.
Secs. 24 to 26 form a trio containing safeguards against
accused persons being coerced or induced to confess guilt.
Towards that end sec. 24 makes a confession irrelevant in a criminal proceeding if it is made as a result of inducement, threat
or promise from a person in authority, and is sufficient to give an
accused person grounds to suppose that by making i1 he would
gain any advantage or avoid any evil in reference to the proceedings against him. Under sec. 25, a confession made to a police
officer under any circumstances is not admissible in the evide.nce
against him. Sec. 26 provides next that no confession made by a
prisoner in custody even to a person other than a police officer is
admissible unless made in the immediate presence of a magistrate.
The expression 'confession' has not been defined in the Evidence Act. But Stephen in his Digest of the Law of Evidence
defined it as an admission made at any time by a person charged
witli crime stating or suggesting the inference that he committed
a crime. Straight J., in R. v. lagrup(') and Chandawarkar, J.,
in R. v. Santya Bandhu( 2 ), however, did not accept such a wide
definition and gave a narrower meaning to the expr~sion 'confession' holding that only a statement which was a direct acknowledgement of guilt would amount to confession and did not include merely inculpatory admission which falls short of being
admission of guilt. The question as to the meaning of 'confession'
was ultimately settled in 1939 by the Privy Council in Pakala
Naravana Swami v. The King Emperor(") wherein at page 81
Lord Atkin laid down that no statement containining self-exculpatory matter could amount to confession if the exculpatory
(I) I. L.R. 7 All. 646.
(") 4 Born. L.R. 633.
(3) 66 l·.A. 60.
454
SUPREME COURT REPORTS
[1972] I S.C.R.
statement was of some fact which if true would negative the offence alleged to be confessed. He observed :
"Moreover, a confession must either admit in tenns
the offence, or at any rate substantially all the facts
which constitute the office. An admission of a gravely
incriminating fact, even a conclusively
incriminating
fact, is not of itself a confession, e.g., an admission
that the accused is the owner of and was in recent possession of the knife or revolver which caused death
with no explanation of any other man's possession.
Some confusion appears to have been caused by the definition of confession in art. 22 of Stephen's Digest of
the Law of Evidence which defines a confession as an
admission made at any time by a person changed with
crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after
dealing with admissions generally is applying himself to
admissions in criminal cases, and for this purpose defines confessions so as to cover all 'such admissions, in
order to have a general term for use in the three following articles :-confession secured by inducement, made
upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act,
1872;
and in that Act it would not be consistant with the
natural use of language to construe
confession as a
statement by an accused "suggesting the inference that
be committed" the crime."
As held by the Privy Council, a confession has to be a direct
acknowledgement of the guilt of the offence in question and such
as would be sufficient by itself for conviction. If it falls short
of such a plenary acknowledgement of guilt it would not be a
confession even though the statement is of some incriminating
fact which taken along with other evidence tends to prove his
guilt. Such a statement is admission but not confession. Such a
definition was brought out by Chandawarkar, J. in R. v. Santya
Bandhu(1) by distinguishing a statement giving rise to an inference of guilt and a statement directly admitting the crime in
question.
In Palvinder Kaur v. Punjab('). the statement made by the
accused was that she had placed her husband's dead body in a
trunk and had carried it in a jeep and thrown it into a well. But
with regard to the cause of death, the statement was that her
husband had accidently taken a poisonous substance erroneously
(I) 4 Bom L.R. 633.
(2) ( 1953( S.C.R. 94.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
KANDASWAMY v. TAMIL NADU (She/at, /.)
455
tb,infing that to be a medicine.
This Court referred to Pakala
Naravana Swami's case(') and the dictum of Lord Atkin and
i\eld that a statement which contained self-exculpatory matter
~ould not amount to a confession if the exculpatory matter is
of some fact which if true would negative the offence alleged to
be confessed. But the Court added that a statement to be a confession must either admit in terms of the offence or at any rate
substantially all the facts which constitute the offence, and that
an admission of a gravel} incriminating fact. even a conclusively
incriminating fact, is not of itself a confession. In Om Prakash
v. UP.(2). the appellant was convicted under sec. 161 re:iJ with
sec. 109 of the Penal Code.
Two statements made by
him,
Exs. P-3 and P-4, to the Assistant Agricultural Enginee1, Aligarh
were relied upon as_ confessions of bribery having been given by
hinI to public servants and upon which the High Court had based
his conviction.
This Court set aside the conviction holding that
neither of the two documents amounted to a plenary acknowledgement of the offence, that the statements were capable of-being
construed as complaints by him of having been cheated by the·
public servants named therein and that at best they might arouse
suspicion that he had bribed them. In this conclusion, the Court
approvingly cited Pakala Naravana Swami's cse( 1)
and relied
on the meaning of the word 'confession' given therein by Lord
Atkin. In Faddi v. Madhya Pradesh('), the appellant filed a
first information report on the basis of which the dead body of
his step son was recovered and three persons were arrested. As
a rsult of the investigatioin, however, the appellant was arrested.
and was sent up for trial which resulted in his conviction and a
sentence of death. In an appeal before this Court, he contended
that the first information report ought not to have been admitted
by reason of sec. 25 of the Evidence Act and sec. 162 of the
Criminal Procedure Code.
The contention was rejected on the
ground that neither of the two provisions barred the admissibility
of the first information report as that report was only an admission
by the appellant of certain facts which had a bearing on the
question as to how and by whom the murder was committed and
whether the statement of the appellant in the Court denying the
evidence of certain prosecution witnesses was
correct or not.
Such admissions were admissible under sec. 21 of the Evidence
Act and as such could be proved against the accused.
It is true that in Queen-Empress v. Nana('), the Bombay
High Court, following Stephen's definition of ·confession, held
that a statement suggesting the inference that the prisoner had
0) 66 l.A.66.
(3) (1964) 6 S.C.R, 312.
(2) A.I.R. 1960 S.C. 409.
(4) (1889) I.LR. 14 Born. 260 ..
.
Ui6
SUPREME COURT REPORTS
[I '.i 72] I S.C.R.
committed the crime would amount to confession. Such a definition would not longer be accepted in the light of Pakala Naravana
.Swami's case(1) and the approval of that decision by this Court in
.Palvinder Kaur's case(2 }. In U.P. v. Deoman Upadhyaya( 8 },
.Shah, J. (as he then was) referred to a confession as a statement
made by a person "stating or suggesting the inference that he
had commiteed li crime".
From that isolated observation, it is
.difficult to say. whether he widened the definition than the one
.given by the Privy Council. But he did not include in the expression 'confession' an admission of a fact, howeve·r incriminating, which by itself would not be enough to prove the guilt of
the crime in question, although it might, together with the other
,evidence on record, lead to the conclusion of the guilt of the
accused person. In a later case of A. Nagesia v. Bihar('),
Bachawat, J., after referring to Lord Atkin's observations in
Pakaia Naravana Swami's case(') and their approvaJ in Palvinder
Kaur's caseJ2 ) defined a confession as "an admission of the
.olfence by a person charged with the offence." It is thus clear
that an admission of a fact, however incriminating, but not by
·itself establishing the guilt of the maker of such admission, would
not amount to confession within the meaning of ss. 24 to 26 of
the Evidence Act.
On the authority of these pronouncements by this Court, it is
clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt, of an incriminating
fact, and which established the presence of the appellant in the
deceased's room but which clearly was not barred under sec. 26.
The Sessions Judge and the High Court were, therefore, righ:t in
holding it to be admissible and in relying upon it. In this View.
councel's second contention also fails and has to be rejected.
The appeal fails and·rs dismissed.
V.P.S.
(1) 66 J.A.66.
(2) [1953] S. C.R. 94.
Appeal dismissed.
(3) [1961] I S.C.R. 14, at 21.
141 A.LR. 1966 S.C. 119. at 12!.
A
B
c
D
E
F