Uttarakhand High Court
State Of Uttarakhand vs Ashish Alias Bobi on 14 September, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 21 of 2011
State ....Appellant
Versus
Anil Kumar & another ...Respondents
Mr. Amit Bhatt, Dy.A.G. for the State/appellant. Mr. Nand Gopal Singh, Advocate for the respondents.
With
Government Appeal No. 19 of 2011
State ....Appellant
Versus
Ashish @ Bobby ....Respondent
Mr. Amit Bhatt, Dy.A.G. for the State/appellant. Ms. Khushbu Tiwari Sharma, Advocate holding brief of Mr. Vipul Sharma, Advocate for the respondent.
Judgment Reserved- 10.08.2017 Date of Judgment - 14.09.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J Since common questions of law and facts are involved in the above titled government appeals, hence the same are being taken up together and adjudicated by this common judgment.
2. These appeals are directed against the judgment and order dated 29.09.2010, rendered by learned Sessions Judge, U.S. Nagar in Sessions Trial No.78 of 2007 and Sessions Trial No.243 of 2007, whereby the accused- respondents, who were charged with and tried for the offences under Section 302/34 of IPC were acquitted. Accused-respondents namely Anil Kumar and Yogesh @ Yogi, who were also charged with and tried for the offences under Section 182 of IPC were acquitted.
3. The case of the prosecution, in a nutshell, is that on 06.10.2006, Shivpal Singh lodged a report to the effect 2 that his brother Mahipal Singh was residing in Awas Vikas Colony, Kashipur. He was employed as Conductor. The accused-respondent namly Anil Singh was also residing in the same locality. He was also employed as Bus Conductor. The relations were normal. On 13.09.2006, in the evening at about 06:30 PM, Anil Sharma rang up Mahipal Singh that he was not feeling well. He was in Batashewali Gali. He called him to reach there immediately. His brother went to the spot. He saw that Anil Sharma, Yogesh Chaturvedi @ Yogi and Vijay Singh @ Bobby were standing there armed with revolver, rifle and tamancha. All of them fired at his brother. Thereafter, they ran away. His brother was taken to Government Hospital, Kashipur and thereafter, he was referred to Vivekanand Hospital, Muradabad and ultimately he was referred to Sir Ganga Ram Hospital, Delhi. The FIR was registered and the matter was investigated and the challan was put up after completing all the codal formalities. The prosecution has examined number of witnesses in its support. The statements of accused- respondent were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The respondents were acquitted, as noticed hereinabove. Hence, these government appeals.
4. Learned Dy.A.G for the State has vehemently argued that the prosecution has proved its case beyond reasonable doubt against the accused- respondents. Learned Advocates for the respondents have supported the judgment dated 29.09.2010.
5. We have heard learned counsel for both the parties and perused the judgment and record carefully.
6. According to the case of prosecution, the respondents have made extra-judicial confession before PW6 Lallu Singh and PW7 Prahalad Singh. PW6 Lallu 3 Singh is the maternal uncle of deceased Mahipal Singh. He has deposed that they have stayed in the house of deceased to look after his house. On 20.09.2006 (Wednesday), the respondents namely Anil Sharma, Ashish @ Bobby and Yogesh @ Yogi came to the house of Mahipal and told him that they wanted to implicate Panny Farm people. In these circumstances, they have shot Mahipal. They were ready and willing to incur the entire expenditure of his treatment. PW6 Lallu Singh has deposed that he was under this impression that Mahipal would survive, thus, he has not told about this extrajudicial confession to any person.
7. PW7 Prahalad Singh is also closely related to deceased Mahipal Singh. He has also deposed that on 20.09.2006, the respondents have made extrajudicial confession.
8. PW6 Lallu Singh has admitted that he did not know the respondents before the incident. The extrajudicial confession is weak evidence. It cannot be believed that despite the extrajudicial confession made by the respondents before PW6 Lallu Singh and PW7 Prahalad Singh, why they did not disclose this fact immediately to the police or to other relatives of the deceased. There was no occasion for them to wait. The extrajudicial confession is generally made before a person of authority or to the close relatives. The respondents were neither relative of PW6 Lallu Singh nor of PW7 Prahalad Singh.
9. The police also relied up the dying declaration made by the deceased. According to PW1 Shivpal Singh, the respondents have shot at his brother on 13.09.2006. Thereafter, his brother was taken initially to Muradabad, and then to Sir Ganga Ram Hospital. His brother died on 29.10.2006. He remained with his brother w.e.f. 14.09.2006 to 05.10.2006. He visited his brother at 4 Vivekanand Hospital, Muradabad. He was in coma. His brother regained consciousness on 04.10.2006. His brother was unconscious before 04.10.2006. When the dying declaration was made by Mahipal, at that time Babu, Mahendra Singh, Ravindra Singh and wife of Mahipal were also present. It has not come in the medical report of Government Hospital, Kashipur that Mahipal was unconscious. The prosecution has not placed any document that as to when Mahipal was referred from Kashipur to Vivekanand Hospital. It has not come on record that when the injured was admitted to Sir Ganga Ram Hospital.
10. PW2 Ravindra Singh has also deposed that he had come to see Mahipal on number of times. He was told by Mahipal in hospital that on 13.09.2006, Anil Sharma has summoned him in Batashewali Gali and remaining co- accused were also present there and they have fired at him. However, surprisingly, PW2 Rajendra Singh has not mentioned that on which date he has gone to see Mahipal at Delhi and on which date Mahipal had made the dying declaration. He has also admitted that as and when he gone to Delhi, Mahipal was unconscious.
11. PW3 Mahendra Singh has deposed that he has gone to Sir Ganga Ram Hospital on 04.10.2006. Mahipal has told that on 13.09.2006, Anil Sharma and co-accused have fired at him. When Mahipal has told this incident to his brother, he was also present. He has tried to make improvements from his previous statement.
12. PW4 Babu Ram is the elder brother of deceased Mahipal Singh. He has gone to hospital with his brother. Shiv Pal, Munna, Ravindra, Mahindra Singh and the wife of deceased Mahipal were present with rest of the people. He has also not disclosed that on which date, his brother 5 remained conscious and what time he made the dying declaration.
13. PW5 Smt. Manju Devi has also deposed the manner, in which, the incident has happened. She has taken her husband to Vivekanand Hospital, Muradabad. She has deposed that her husband regained consciousness. He told her the manner, in which, the incident has happened. According to her, one of the accused has grabbed her husband and three have fired at him. But rest of the witnesses have deposed that all the respondents have fired at deceased. PW5 Smt. Manju Devi has also not deposed as to when her husband regained consciousness, to narrate the incident.
14. The statement of Mahipal was recorded on 10.10.2006 by PW8 S.I. P.D. Joshi. According to him, Mahipal was speaking clearly but was going into unconsciousness. PW8 S.I. P.D. Joshi has not got any certificate from the doctors whether the injured was in a fit state to make the statement or not. It is evident that the deceased was not in a fit condition to give the statement.
15. The prosecution has produced PW10 Harkesh Singh as the eye-witness. However, he has not supported the case of the prosecution. He has categorically deposed in his examination-in-chief that on 13.09.2006, he was not in Kashipur market. He has not seen even Batashewali Gali nor he has seen Mahipal Singh. He did not know the respondents. The respondents have neither surrounded the deceased nor they have fired at Mahipal Singh. He was accordingly declared as hostile.
16. The prosecution has also failed to attribute any motive to the respondents. It has come in the FIR itself that the relations between Anil Sharma and deceased were cordial. The version of the prosecution that the respondents 6 wanted to falsely implicate somebody by firing at the deceased has not been proved.
17. Their Lordships of the Hon'ble Supreme Court in AIR 1974 SC 1545, in the case of "Jagta vs. State of Haryana", have held that the evidence about an extrajudicial confession is in the nature of things a weak piece of evidence. If the same is lacking in probability there would be no difficulty in rejecting it. Their Lordships have held as under: -
"14. So far as the alleged extra judicial confession of the accused is concerned, the prosecution has relied upon the evidence of Ram Singh (PW 4). After having been taken through the evidence of that witness, we find the same to be lacking in credence and devoid of any ring of truth. The police was admittedly present in the office of the cooperative society in Village Farmana on the morning of January 15, 1972. We find no reason as to why the accused, instead of surrendering himself before the police, should go to the house of Ram Singh in Village Farmana, blurt out a confession before him and ask him to produce the accused before the police. Nothing has been shown to us as to why the accused could not himself go and appear before the police. We have mentioned above that an attempt has been made in this case to introduce the story of the recovery of ornaments belonging to Phul Pati deceased from the accused. The attempt of the investigating agency to introduce a false story about the removal of the ornaments of the deceased and their recovery from the accused would, in our opinion, also affect the credibility of the evidence regarding the extra judicial confession alleged to have been made to Ram Singh PW. The evidence about an extra judicial confession is in the nature of things a weak piece of evidence. If the same is lacking in probability as it is in the present case, there would be no difficulty in rejecting the same. We are, therefore, not prepared to place any reliance upon the evidence regarding the extra judicial confession of the accused."
18. Their Lordships of the Hon'ble Supreme Court in AIR 1984 SC 1622, in the case of "Sharad Birdhichand Sarda vs. State of Maharashtra", have held following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established. Their Lordships have held as under: -
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a 7 case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
19. Their Lordships of the Hon'ble Supreme Court in AIR 1990 SC 2140, in the case of "Kishore Chand vs. State of Himachal Pradesh", have held that the Court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the Court must scrutinize all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Their Lordships have further held that the extra- judicial confession was made which the accused was in the 8 police custody and could not be proved against the accused. Their Lordships have held as under: -
"7. The question that emerges, therefore, is whether the prosecution has established the three circumstantial evidences heavily banked upon by the prosecution in proof of the guilt of the appellant. The first circumstance is that the deceased and the appellant were last seen together by PW 7 and PW 8. From the evidence it is clear that there is no prior intimacy of the appellant and the deceased. They happened to meet perchance. Equally from the evidence it is clear that PW 7, the liquor shop owner and PW 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant. Admittedly there is no identification parade conducted by the prosecution to identify the appellant by PW 7 or PW 8. The appellant was stated to have pointed out to PW 7 as the one that sold the liquor and PW 8 consumed it with him and the deceased. Therefore it is not reasonably possible to accept the testimony of PW 7 and PW 8 when they professed that they have seen the appellant and the deceased together consuming the liquor. It is highly artificial and appears on its face a make believe story. The next piece of evidence is the alleged extra-judicial confession made by the appellant to PW 10. An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the court along with other evidence on record. Therefore, even the extra- judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.9
8. Admittedly PW 10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is clear that PW 27, and PW 10 came together and apprehended the appellant from his village and was taken to Jassur for identification. After he was identified by PW 7 and PW 8 it was stated that he was brought back to Gaggal village of PW 10 and was kept in his company and PW 27 left for further investigation. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall (sic not) be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not be proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Section 26 thereof. Admittedly the appellant did not make any confession in the presence of the magistrate. The question, therefore, is whether the appellant made the extra-judicial confession while he was in the police custody. It is incredible to believe that the police officer, PW 27, after having got identified the appellant by PW 7 and PW 8 as the one last seen in the company of the deceased would have left the appellant without taking him into custody. It is obvious, that with a view to avoid the rigour of Sections 25 and 26, PW 27 created an artificial scenario of his leaving for further investigation and kept the appellant in the custody of PW 10, the Pradhan to make an extra-judicial confession. Nothing prevented PW 27 to take the appellant to a Judicial Magistrate and have his confession recorded as provided under Section 164 of the CrPC which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW 10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW 10. Therefore, it would be legitimate to conclude that the appellant was taken into the police custody and while the accused was in the custody, the extra-judicial confession was obtained through PW 10 who accommodated the prosecution (sic appellant). Thereby we can safely reach an irresistible conclusion that the alleged extra-judicial confession statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW 10 while he was in the custody of the police officer (PW 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc."10
20. Their Lordships of the Hon'ble Supreme Court in 1972 (3) SCC 759, in the case of "Kahim Beg & another vs. State of U.P.", have held that extra-judicial confession is a weak piece of evidence. Their Lordships have held as under:-
"18. We may now deal with the evidence regarding the extra-judicial confession of the two accused to Mohammad Nasim Khan (PW 4) and the recovery of ornaments belonging to the deceased from the two accused. It is primarily upon these two pieces of prosecution evidence that the conviction of the accused has been based. So far as the confession to Mohd. Nasim Khan is concerned, we find that, according to the said witness, the two accused came to him at his house in Sakunpur on August 4, 1969 and told him about their having raped and killed the daughter of Ramjas by strangulating her as well as regarding the removal of her ornaments. Mohammad Nasim Khan belongs to another village. There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohammad Nasim Khan and blurt out a confession. It is also not clear as to why the two accused should try to run away on seeing the police party coming with Mohammad Nasim Khan if Mohammad Nasim Khan had gone to the police at the request of the accused. According to Mohammad Nasim Khan, Gur Sewak PW was with the police Sub-Inspector when the Sub-Inspector came with Mohammad Nasim Khan to his house and apprehended the accused. The evidence of Ramjas PW, however, shows that Gur Sewak PW went with Ramjas to the mortuary on the night between 3 and 4 August, 1969 and that on August 4, 1969 Sur Sewak remained with Ramjas throughout the day at Rae Bareli. It was on August 5, 1969 that, according to Ramjas, he and Gur Sewak returned to their village after throwing the dead body of Kesh Kali in Sain river. It would thus appear that Ramjas PW who, being the father of the deceased, had no particular reason to damage the prosecution case and to support the accused has contradicted Mohammad Nasim Khan on the point that Gur Sewak PW was with the police Sub-Inspector on August 4, 1969. The fact that Mohammad Nasim Khan has deposed regarding the presence of Gur Sewak with the police Sub-Inspector with a view to support. the prosecution case even though, according to Ramjas PW, Gur Sewak was not with the police Sub-Inspector shows that Mohammad Nasim Khan has scant regard for truth. The evidence of extra-judicial confession is a weak piece of evidence. The evidence in this respect adduced by the prosecution in the present case is not only of a frail nature, it is lacking in probability and does not inspire confidence."11
21. Their Lordships of Hon'ble Supreme Court in 1997 (8) SCC 158, in the case of "Pakkirisamy vs. State of T.N.", have held that it is a rule of caution that the court would generally look for an independent reliable corroboration before placing any reliance upon an extra- judicial confession. Their Lordships have held as under:-
"8. Mr Murlidhar, learned counsel then contended that it is well settled that the evidence of extra-judicial confession is a weak type of evidence and ordinarily the court would be slow to accept such type of evidence. He therefore, urged that Ex. P-8 be left out of consideration. We are unable to accept this broad proposition put forth on behalf of the appellant. It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra-judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. The same principle has been enunciated by this Court in Balwinder Singh v. State of Punjab1. In the facts and circumstances of this case, we hold that the courts below committed no error in relying upon Ex. P-8 as the same is corroborated from several other proved circumstances."
22. Their Lordships of the Hon'ble Supreme Court in 2009 (8) SCC 383, in the case of "State of Andhra Pradesh vs. S. Swarnalatha & others", have held that extra-judicial confession is a weak piece of evidence, although in given situations reliance can be placed thereupon. Their Lordships have held as under: -
"16. PW 6 admitted that prior to the making of confession to him, Accused 1 never talked to him. Why she, instead of her husband, would confide in PW 6, is beyond all comprehension. In the aforementioned situation, the extra-judicial confession purported to have been made by Accused 1 to PW 6 becomes doubtful. Extra-judicial confession as is well known is a weak piece of evidence, although in given situations reliance thereupon can be placed. (See State of U.P. v. M.K. Anthony1, SCC p. 517, para 15 and State of Rajasthan v. Kashi Ram2, SCC p. 262, para 14.)"12
23. Their Lordships of the Hon'ble Supreme Court in 2012 (6) SCC 403, in the case of "Sahadevan & another vs. State of Tamil Nadu", have held that in case of circumstantial evidence, onus lies upon prosecution to prove complete chain of events which must undoubtedly point towards guilt of accused. When prosecution relies upon an extra-judicial confession court has to examine the same with a greater degree of care and caution. Their Lordships have held as under: -
"13. There is no doubt that in the present case there is no eye-witness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution.
24. Their Lordships of the Hon'ble Supreme Court in 2012 (6) SCC 403, in the case of "Sahadevan & another vs. State of Tamil Nadu", have held if extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, it may be difficult for court to base a conviction on such a confession. Their Lordships have held as under: -
"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.
15. Now, we may examine some judgments of this Court dealing with this aspect.
15.1. In Balwinder Singh v. State of Punjab2 this Court stated the principle that: (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence 13 and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
15.2. In Pakkirisamy v. State of T.N.3 the Court held that: (SCC p. 162, para 8) "8. ... It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession." 15.3. Again in Kavita v. State of T.N.4 the Court stated the dictum that: (SCC p. 109, para 4) "4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made."
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram5 stated the principle that: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made."
The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...."
15.5. In Aloke Nath Dutta v. State of W.B.6 the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material as unjustified, observed: (SCC pp. 265-66, paras 87 &
89) "87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) 14 voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.
* * *
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
15.6. Accepting the admissibility of the extra- judicial confession, the Court in Sansar Chand v. State of Rajasthan7 held that: (SCC p. 611, paras 29-30) "29. There is no absolute rule that an extra- judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore8, Mulk Raj v. State of U.P.9, Sivakumar v. State10 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra11 and Mohd. Azad v. State of W.B.12]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat13 held as under: (SCC pp. 772-73, para 53) "53. It appears therefore, that the appellant has retracted his confession. When an extra- judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra- judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.14 and Pancho v. State of Haryana15.) The principles
16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial 15 confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
25. The prosecution has failed to prove the case against the respondents beyond reasonable doubt. There is no occasion for us to interfere with the well-reasoned judgment of the trial court. Accordingly, there is no merit in these government appeals and the same are hereby dismissed.
26. Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT