Uttarakhand High Court
State Of Uttarakhand vs Stainli Singh Alias Raimi And Ors on 28 July, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 52 of 2010
State of Uttarakhand ....Appellant
Versus
Stainley Singh @ Raimi & others
....Respondents
Mr. V.K. Jemini, Dy.A.G. for the State-appellant. Mr. Arvind Vashistha, Senior Advocate for the respondent nos.1 and 5. Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Saurav Adhikari, Advocate for the respondent no.2. Mr. Mohd. Safdar, Advocate for the respondent nos.4,6 and 7.
Judgment Reserved- 11.07.2017 Date of Judgment - 28.07.2017 Coram: Hon'ble Rajiv Sharma, J Hon'ble Sharad Kumar Sharma, J Per: Hon'ble Rajiv Sharma, J This appeal is directed against the judgment dated 26.07.2010, rendered by learned Additional Sessions Judge/ Ist First Track Court, Haridwar in Sessions Trial No.112 of 2010, whereby the respondents-accused, who were charged with and tried for the offence under Sections 302, 120-B, 34 and 404 of IPC, have been acquitted.
2. The case of the prosecution, in a nutshell, is that the information was received on telephone bearing no.250444. According to the telephonic information, on the Situpur Bypass on the left side, Vijay Kumar Chauhan and his wife Shashikala were killed by strangulation. Their bodies were lying in different rooms. The FIR was registered. The inquest report was prepared. The postmortem was got conducted on the dead bodies. The case property was taken into possession. The investigation was carried out and the challan was put up after completing all the codal formalities. The prosecution has examined as many as 16 witnesses in its support. The statements of the accused were also recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The accused were acquitted. Hence, this appeal.
23. Learned State counsel has vehemently argued that the prosecution has proved its case beyond reasonable doubt against the respondents-accused. Learned advocates on behalf of the respondents-accused have supported the judgment dated 26.07.2010.
4. We have heard learned counsel for both the parties and perused the judgment and record carefully.
5. The case of the prosecution is based on circumstantial evidence. There is no eye witness. In order to prove case based on circumstantial evidence, it is necessary for the prosecution to complete the entire chain. All the circumstances must exclusively point towards the guilt of the accused.
6. PW1 Ravish Chandra Aggarwal has testified that he was residing at Nazibabad. He was tenant of the deceased. He was running a clinic by the name of Madhuri Clinic. His landlord namely Vijay Singh and his wife Shashikala were residing in the house. He did not have any detailed information about the property of Vijay Singh. He had only limited information that deceased Vijay Singh has two sons. One son has died and second son is Stainly Singh @ Raimi. On 18.08.2009, he came to his clinic as usual at 10:00 AM. Sister-in-law Rajkumari went to the rooms and discovered the couple was dead. Thereafter, the police was informed.
7. PW2 Raj Kumari has deposed that his brother- in-law has married twice. He has two sons namely Raimi and Saimi. Saimi died in the year 2004. His wife was living in Delhi. She was teaching in some school. The second son Raimi was also married at Haldwani. His wife was nurse. Vijay Singh's first wife has died. Raimi used to visit his father. Her sister-in-law was doctor in the army and used to stay in the home. She has visited his house on 17th. The 3 house was latched from outside. She called up but there was no response. She thought that might have gone for a walk. Thereafter, on 18th, she went to the house. She opened the latch and went inside the house. Her brother- in-law was lying on the bed. He was dead. She raised the alarm. Thereafter, she became unconscious. She informed her son and daughter-in-law. She did not have any suspicion who has killed Vijay Singh and Shashikala. She denied her statement recorded under Section 161 of Cr.P.C. She further reiterated that Raimi was a nice boy.
8. PW3 Jayant Chauhan has deposed that he was summoned to the police station. The police obtained his signature. His signatures were obtained qua recovery of hair from the fingers of Shashikala. The police has not written anything on these papers. He was made to sign on blank papers. Some human hair were recovered from Vijay Singh. However, the police has not read over the recovery memos to him. Though, he has identified the signatures on the same. The police has taken the dead bodies to hospital. He was declared hostile and cross-examined by learned District Govt. Counsel. In his cross-examination, he had denied his statement recorded under Section 161 of Cr.P.C.
9. PW4 Amar Singh has deposed that he was also summoned to the police station. His signature was obtained on two papers. These were blank. He has identified signature on the recovery memos. The police has not written anything on these documents. Thereafter, the police has taken the dead bodies to the police station. He has denied his statement under Section 161 of Cr.P.C. He was also declared hostile and cross-examined by learned DGC. In his cross-examination, he has admitted that nothing was done in his presence. Everything was done in the police station. Panchayatnama was not read over to 4 him. His opinion was not obtained about the cause of death.
10. PW5 Dr. Brijesh Bhardwaj has conducted the postmortem examination. According to him, the deceased had died due to strangulation 3-4 days back.
11. PW6 Sajid has deposed that he was not working as a Driver. Neither he owned any vehicle nor he has accompanied Faarukh. He was also declared hostile and cross-examined by learned public prosecutor. He was confronted with the statement recorded under Section 161 of Cr.P.C. He has shown ignorance about his statement.
12. PW7 Shailley has deposed that she was the daughter of deceased. She has deposed that her father Vijay Singh and mother Shashikala had come on 11.08.2009, since the father-in-law of Raimi has died. Thereafter, they had gone back to Haridwar and his brother had gone back to Haldwani. She received a telephonic call from her aunt Rajkumari that her parents were dead. She was not told anything about how they died. Her brother Raimi had already reached in the evening. Other relations have also reached. She was surprised how her brother was named by the police in the murder of her parents. Her brother was not of that type. Her brother used to love his parents. He was happy with the second marriage of his father. There was no misunderstanding between them. His father has solemnized second marriage in the year 1999.
13. PW8 Rajeev Kumar has deposed that his marriage was solemnized with Vijay Singh's daughter namely Shailley. Shashikala was his mother-in-law. His brother-in-law Raimi was staying at Haldwani. Raimi's wife was a Nurse. They reached Haridwar, after hearing the news of murder of his in-laws. His brother-in-law was not involved in this murder. He was surprised that his brother-
5in-law Raimi was falsely implicated in the murder of his parents. His brother-in-law Raimi used to love his parents. There was no misunderstanding between the family members.
14. PW9 Sanjeev Kumar has deposed that he has not gone with the police personnel to Iklakh village. He has also not gone to in-laws house of the accused Rajesh. He did not know Iklakh and Rajesh. No recoveries were effected from them. His signatures were obtained on blank papers. He was also declared hostile and cross-examined by learned DGC. He has shown his ignorance about the statement recorded under Section 161 of Cr.P.C.
15. PW10 Neeraj has deposed that Stainly @ Raimi was his uncle in relation. He used to work in STD. He has never seen Raimi taking any drugs. He has never seen him with Sitraram Ghasmandi. He did not know Sitaram. He was also declared hostile and cross-examined by learned public prosecutor. He has shown his ignorance about his statement recorded under Section 161 of Cr.P.C.
16. PW12 S.I. Ajay Singh has deposed that he was working as S.I. in Police Station Jwalapur. He has prepared panchayatnama. He has proved the hairs recovered from the hands of Shashikala and Vijay Singh.
17. PW13 S.I. Sandeep Deshwal has deposed that he was posted as S.I. in Police Station Jwalapur, Haridwar. He got recovered watch from the jug from the house of Tehsil. A mobile was also got recovered from the house of Iklakh. Another Nokia mobile was also recovered from the house of Rajesh.
18. PW14 Rahul Kumar is the material witness. According to him, Shashikala was his aunt. His aunt got married. The elder son of Vijay Singh has committed 6 suicide and accused Raimi used to harass his parents. Raimi was under the influence of drugs. He was not happy with his parents. He suspected Raimi in the commission of crime. On 26.08.2009 at 8:00 PM, Raimi has come to his house at Saharanpur. He told him that a mistake has been committed by him. He got his parents murdered by Sitaram and Rajesh. Raimi has promised to give Rs.25.00 lacs to Sitaram and Rajesh and one shop. There was a discussion about Rs.25.00 lacs. When Raimi made the extra-judicial confession, Sanjay Kumar was also present. They had gone to the police station on 27.08.2009. Raimi has made the extra-judicial confession before the SHO. He has signed the statement along with Sanjay. Thereafter, Raimi has taken them to Ranipur. Raini told that Babu, Faarukh, Rajesh and Sitaram would meet them there. Faarukh, Babu and Rajesh were nabbed. Sitaram was also nabbed. Sitaram told that he was in the contact of Raimi for the last two years. All the accused have made extra-judicial confession before them. The accused have also named Tehsil, Iklakh and Dharmendra. A camera was recovered from Faarukh, ATM card from Babu's pocket and two cameras were also recovered in his presence.
19. PW15 Inspector Bahadur Singh Chauhan has deposed that he was posted as SHO. He visited the spot. The dead bodies were smelling. In the fingers of one of the deceased, human hair were stuck. Similarly, human hair was stuck in the hands of Shashikala. Some ligature was also found around the necks of both the deceased. He got the postmortem conducted. One informant has told him that the son of the deceased has met Rajesh in the house of Sitaram. Faarukh, Sahjaad @ Pathak and Babu were also roaming around. The accused were arrested. On 27.08.2009, Raimi has come to the police station along with Rahul and Sanjay. He made the extra-judicial 7 confession. It was written by ASI Pradeep Pant. Stainley @ Raimi also told them that Sitaram and others have also called him at Ranipur jhal. Sitaram, Faarukh and Baburam were also arrested. Their extra-judicial confessions were recorded again by ASI Pradeep Pant. The other case property was also got recovered.
20. PW16 Sanjay Kumar has deposed that on 27.08.2009, he along with Raimi and Rahul had gone to police station Jwalapur. Raimi has made extrajudicial confession before them and thereafter, he was taken to the police station. His extra-judicial confession was recorded. It was signed by him. Thereafter, they had gone to Ranipur jhal from where Sitaram, Babu and Faarukh were arrested. They have made confession before the police. They also told that Iklakh, Tehsil and Rajesh were also involved in the crime. Baburam has also made extra-judicial confession. PW16 Sanjay Kumar has admitted his friendship with PW14 Rahul.
21. PW1 Ravish Chandra Aggarwal has only deposed that he was tenant of Vijay Singh. He had come to his clinic on 18.08.2009. The sister-in-law of Vijay Singh has visited his brother's house. Vijay Singh and Shashikala were found dead. PW2 Rajkumari was declared hostile. According to her, Raimi was happy with the second marriage of his father. Raimi was staying with his wife at Haldwani. She has never seen Raimi quarreling with his parents over money. PW3 Jaswant Chauhan and PW4 Amar Singh were also declared hostile. According to them, they were made two signs on the blank papers. No recovery was effected in their presence. PW6 Sajid was also declared hostile. He has also disowned his statement recorded under Section 161 of Cr.P.C. PW7 Shailley Khanna is the daughter of the deceased. In her cross-examination, she has categorically stated that she was surprised that her brother was named 8 accused by the police in the murder of her parents. Her brother used to love her parents. Similarly, PW8 Rajeev Kumar has deposed that his brother-in-law was not involved in the commission of crime. The motive of murder was robbery. PW9 Sanjeev Kumar has also not supported the case of the prosecution and was declared hostile. He has denied the recoveries made before him. PW10 Neeraj was also declared hostile. PW12 SI Ajay Kumar has proved the recovery of hair from the hands of the deceased.
22. The statement of PW14 Rahul Kumar is very relevant in the present case. According to him, deceased Shashikala was his aunt. He has deposed that the accused Raimi has come to his on 26.08.2009 and has made the extra-judicial confession. The extra-judicial confession was made by the accused in the presence of Sanjay Kumar. PW16 Sanjay Kumar was also present on the spot. Thereafter, they had gone to the police station where the statement of the accused Raimi was recorded. Thereafter, they had gone to Ranipur jhal. Three accused namely Sitaram, Babu and Faarukh were present. They have also made extra-judicial confession and they have named other accused. It has come on record that Vijay Singh's elder brother was residing in close vicinity of his house with his wife. It is not believable why the accused has gone to meet Rahul on 26.08.2009 to make extra-judicial confession. In case, the accused wanted to make extra-judicial confession, he could make the same before his uncle or his aunt instead of making extra-judicial confession before his cousin. The extra-judicial confession was recorded when the accused was in a custody of police. It is not admissible under Section 26 of the Indian Evidence Act. The statements made by the remaining accused were also in the presence of police and thus, hit by Section 25 and 26 of the Indian Evidence Act. According to PW14 Rahul Kumar 9 when the extra-judicial confession was made, his father and PW16 Sanjay Kumar were present. His father remained in the police station in the evening. PW16 Sanjay Kumar has denied the presence of the father of PW14 Rahul Kumar. The police has made the recoveries from the accused. However, in the FIR, there is no mentioning of the household items being robbed by the accused. The police has not registered any case of robbery. The accused were also not charged for robbery.
23. 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."10
24. 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 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."
25. 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 11 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 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 12 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.
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 13 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."
26. 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 14 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."
27. 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."
28. 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 15 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.)"
29. 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.
30. 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 16 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 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 17 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) 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-
18judicial 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 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.
31. The case of the prosecution is also that human hair was recovered from the fingers of the deceased Vijay Singh and Shashikala. It has come in the statement of PW5 Dr. Brijesh Bhardwaj that the dead bodies were decomposed and skin has peeled off. Thus, there is no possibility of the human hair sticking the hands of deceased.
32. It has come on record that a dispute was going on pertaining to property of aunt of PW14 Rahul Kumar. It has also come in the statement of PW14 Rahul Kumar that Raimi has never visited their house before 26.08.2009.
33. The prosecution has failed to prove its case against the accused-respondents beyond reasonable doubt. There is no occasion for us to interfere with the well 19 reasoned judgment of the trial court. Accordingly, there is no merit in this appeal and the same is hereby dismissed.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) NISHANT