JAYASINGH MADAKAMI Vs. STATE

JUDGEMENT

(1.) The appellant stands convicted under S. 302 of the Penal Code (short, 'the Code') and sentenced to undergo imprisonment for life by the Court of Session after acceptance of the case of prosecution, on the basis of the evidence of P.Ws 1 to 3 about an extra-judicial confession said to have been made by the appellant and the recovery of an axe (M.O.I.), which, on chemical and serological test, had been found to have stains of human blood, from the place of concealment consequent upon a statement made by the appellant while in custody, that at midnight on Oct. 12, 1983, the appellant had killed his brother-in-law (to be REFERRED TO hereinafter as 'the deceased') by means of M. O. I.

(2.) We have heard the learned counsel for both the sides. It is not disputed that the deceased had died a homicidal death. Of the witnesses examined for the prosecution, P.W. 4, the widow of the deceased, had been examined to say that she had seen the actual assault on the person of the deceased by the appellant. She did not support this part of the case of the prosecution although evidence was led through P.Ws.1 to 3 that she had made a statement before them that the appellant had killed her husband.

(3.) P.Ws. 1 to 3 had given evidence that on the day following the day of occurrence, when asked about the incident in a meeting of the panchayat, the appellant admitted to have killed the deceased. Apart from the discrepancies in their evidence as to the actual words used by the appellant and the absence of circumstances indicating as to the reason or motive on the part of the appellant to make a confession and as to why he would repose confidence in P.Ws.1 to 3, it would be seen from their statements that the appellant had told them that as the deceased, being armed with axe, bow and arrow, threatened to kill him, he killed the deceased. A confession must either admit, in terms, the offence or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, is not, of itself, a confession. A statement that contains a self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. Even assuming that the appellant had made a statement as testified by P.Ws. 1 to 3, he had clearly set out a right of private defence of his person and under S. 100 of the Code, the appellant did have the right under the law to kill the deceased who, with deadly weapons, had threatened to kill him. The appellant could have reasonable apprehension in his mind that death or grievous hurt would be caused to him if he did not exercise the right of private defence of his person. Thus the statement allegedly made by the appellant contained an exculpatory matter which, if accepted, would negative the offence. Therefore, it could not be said from the evidence of P.Ws.1 to 3 that the appellant had made an extra-judicial confession before them.