The Supreme Court has observed that extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence.
The Division Bench of Justice DY Chandrachud and Justice Bela M. Trivedi noted that extra-judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession.
The Court was dealing with an appeal against the conviction. The accused were sentenced under Section 302 and 201 read with Section 34 of IPC by the Trial Court. The High Court, later in the appeal however, set aside their conviction and sentence imposed under Section 302 read with Section 34 of IPC, but confirmed their conviction for the offence under Section 201 read with Section 34 of IPC.
The Counsel for the appellant has submitted that there were major contradictions in their evidence as regards the alleged extra judicial confession made by the accused Videshi before them. Relying upon various decisions of this Court, he submitted that conviction cannot be based on the extra judicial confession made by the co-accused, which is of a very weak kind of evidence. Repelling the theory of ‘Last seen theory’, he submitted that the statement of PW1 Dhansingh who had allegedly last seen Kanhaiya, having been called by the present appellant, was recorded after 4 months of the incident.
He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal and there is absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.
At the outset, the Court stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. It remarked that the law on the appreciation of circumstantial evidence is also well settled. The circumstances concerned “must or should be” established and not “may be” established and cited Shivaji Sahebrao Bobade & ANR Vs. State of Maharashtra, 1973 Latest Caselaw 151 SC
"The accused “must be” and not merely “may be” guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused"
The Court also mentioned the key ruling of Sharad Birdhichand Sarda Vs. State of Maharashtra wherein five golden principles were framed in this regard.
It reiterated that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish “homicidal death” as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death.
Noting that though the Sessions Court relying upon the said evidence of extra judicial confession of Videshi convicted all the four accused, the High Court partly believing the said extra judicial confession, acquitted the 6 three accused i.e., Bhagirathi, Mangal Singh and Videshi from the charges levelled against them under Section 302 read with 34 of IPC, however convicted them for the offence under Section 201 read with 34 by holding that the said accused had tried to cause disappearance of the evidence, the Court cited State of M.P Through C.B.I. Vs. Paltan Mallah, 2005 Latest Caselaw 51 SC.
It was noted that as per Section 30 of the Evidence Act, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.
"an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession"
"the extra judicial confession made by the coaccused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused."
Referrence was also made to Sahadevan & Anr. Vs. State of Tamil Nadu, 2012 Latest Caselaw 281 SC
"“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”
Theory of “Last seen together”
After analysing the theory with facts in the present case, the Court noted that it is difficult to connect the present appellant with the alleged crime.
It mentioned Jaswant Gir Vs. State of Punjab wherein it was held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of “Last seen together”, even if version of the prosecution witness in this regard is believed.
Referrence was also made to Arjun Marik Vs. State of Bihar, 1994 Latest Caselaw 152 SC wherein it was observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded.
"In order to convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellantaccused could not have been convicted merely on the basis of the theory of “Last seen together”.
Relying on the totality of the evidence on record, the court opined that the High Court had committed gross error in convicting the appellant-accused for the alleged charge of Section 302 read with 34 of IPC, relying upon a very weak kind of evidence of extra judicial confession and on the theory of “Last seen together” not aptly fitting in the present case.
The appeal was accrodingly allowed.
Case Title: CHANDRAPAL (EARLIER M.P.) Vs STATE OF CHHATTISGARH
Case Details: CRIMINAL APPEAL NO. 378 OF 2015
Coram: Justice DY Chandrachud and Justice Bela M. Trivedi
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