TMI Blog2001 (8) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on him. Finally this Court dismissed the appeal filed against A-3 Ganeshan on 5.4.1999. Thus the appeal by special leave filed by the State as against the watchman (A-2 Lakshmi Narasimhan @ Kutty) is now surviving. The dreadful end of the gamboling cine artist and her mother happened in the following manner, as per the prosecution version: The mother and the 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 cash and jewellery in good quantity. They negotiated for purchase of a house for about fifteen lakhs of rupees. When A-1 Jebaraj overheard the said dialogue he presumed that the ladies could be having the cash with them to buy the house. 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 ladies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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. 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-1 is a very fragile piece o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 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 Laksh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted him to say to the magistrate. 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 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 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 corroborating the confession of the second accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption 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 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 MO.41 was recovered by the investigating officer. At any 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 MO.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 and proved in the case. The upshot of the above discussion is that the High Court has gone seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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