“Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused”
[Case Brief] Shiva Karam Payaswami Tewari V. State Of Maharashtra
Shiva Karam Payaswami Tewari V. State of Maharashtra
Criminal Appeal No. Of 2009
(Arising Out Of S.L.P. (Crl.) No.1700 Of 2008
The Supreme Court Of India
J. Dr. ARIJIT PASAYAT
J. ASOK KUMAR GANGULY
Indian Penal Code
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The accused Shiva Karam Payaswami Tewar was working in Hotel Premier run by the complainant Anthony Xavier. The accused was entrusted with the work of preparation of Muttukumar (hereinafter ‘deceased’) was working as amanager in the said hotel.
- On 31.8.1995 the accused as well as Muttukumar were in the hotel. On the next day morning i.e. on 1.9.1995 Murugan Shetiya working in the hotel went to Anthony and told him that the hotel is open and Muttukumar and accused are not present in the hotel.
- When complainant took survey of the hotel he found that cash box was open and tape recorder kept in the hotel was missing. There was no cash in the cash box.
- Report was lodged with the police and investigation was undertaken. Appellant was suspected to be the murderer.
- Accordingly, conviction was recorded by the Trial Court.
- Appellant filed appeal before the High Court (which upheld the conviction.) Before the High Court the stand was that even if the extra judicial confession is accepted to be correct for the sake of argument, case under Section 302 IPC is not made out.
- Thus, this appeal.
- ISSUE BEFORE THE COURT:
- Whether the Court should interfere with the order passed by the lower Courts?
- RATIO OF THE COURT
- The Court first dealt with ‘extra judicial confession’. It stated that though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, Court has to satisfy itself that the same was voluntary and without any coercion and undue influence.
- Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused.
- The Court further observed that if substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused.
- It is for the Court to judge credibility of the witness’s capacity and thereafter to decide whether his or her evidence has to be accepted or not.
- In conclusion the Court mentioned that in the instant case the extra-judicial confession is believable as rightly done by the Trial Court and the High Court. The same not was made to a stranger but to a friend. At the same time the background in which the assault has been made clearly shows that Section302 IPC has no application. The assault was made in the course of sudden quarrel without pre-meditation. The accused was not armed at the relevant point of time.
- DECISION HELD BY COURT:
- The Court altered the conviction to Section 304 Part II IPC. It was decided that custodial sentence of 8 years would meet the ends of justice.
- The appeal was allowed to the aforesaid extent.