Allahabad High Court
State Of Up vs Chandraveer S/O Pachhu Jatav on 14 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- GOVERNMENT APPEAL No. 328 of 2022 Appellant :- State of U.P. Respondent :- Chandraveer S/O Pachhu Jatav Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. This appeal under Section 378(3) of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted at the behest of State of U.P. seeking to challenge the judgment dated 30.11.2021 passed by Addl. Sessions Judge, Court No. 10, District Budaun in S.T. No. 31 of 2018 (State Vs. Chandraveer Singh S/o Pachhu Jatav), arising out of Case Crime No. 163 of 2010 purported to be under Sections 302/34, 201, 506 IPC, Police Station Wazeerganj, District Budaun.
2. Brief facts of the case shorn off unnecessary details as portrayed by the prosecution is to the effect that two days prior to lodging of the FIR 17.2.2010, father of the informant had gone to the agricultural field for watering the same and after returning to the house, he received a phone call from the accused, who happens to be husband of the informant and son in law of the deceased, to come to a particular place. When the said fact was apprised to the informant as well as the family member, then resistance was sought to be made by the informant and the family member that the deceased should the accused. However the deceased proceeded while honouring the phone call so made by the accused at 2:00 P.M, however he did not come back till 4:00 P.M, though as per the written report, he had taken the jewellery of the informant for pledging the same. Search was sought to be made by the deceased, however the whereabouts of the deceased were missing. As per the written complaint dated 17.2.2010, so sought to be lodged before the S.H.O, P.S. Wazeerganj, District Budaun, an information was acceeded to the informant and the family member that the dead body was found in a hole near Hathara Road. Accordingly, a request was made to lodge the FIR. On the basis of the written complaint so sought to be made by the informant, a first information report got registered being Case Crime no.163 of 2010 on 17.2.2010 at 17:30 hours against the accused purported to be under Sections 302/201 IPC. Consequent to lodging of the FIR, S.I. Mahesh Prasad was nominated as the Investigating Officer, who according to the prosecution version prepared the site plan, panchnama and sent the body for post mortem and also recorded the statements of the witnesses. On 26.2.2010, investigation was concluded by the I.O, and charge sheet in Case Crime no. 163 of 2010 was submitted against the accused under section 302/34, 201, 506 IPC. It has come on record that allegations referable to commission of crime were also made against the co-accused Iliyas and Karan Singh, charge sheet was also submitted against them under Section 302/34, 201, 506 IPC, however, they were acquitted in Sessions Trial No. 687 of 2010 on 11.3.2014 by the learned Trial Court. Meaning thereby, it is only the accused herein against whom, criminal proceedings so sought to be initiated by accused herein culminated into filing of the present appeal. The case was committed for trial before the Sessions Court on 7.7.2017 and the charges under Sections 302/34, 201, 506 IPC were read over to the accused. The accused denied the charges and claimed to be tried.
3. To bring home the charges, the prosecution produced following witnesses, namely:
1.
Smt. Anita PW1
2. Rupendra PW2
3. Smt. Premwati PW3
4. S.I. Raj Rishi Sharma PW4
5. Nand Ram PW5
6. Dr. Harish Chandra PW6
4. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1.
Written complaint Ex.ka1
2. Chik FIR Ex.ka2
3. Copy of G.D. Ex.ka3
4. Post mortem Report Ex.ka4
5. We have heard Sri Ratan Singh, learned A.G.A, for the State-appellant.
6. Before driving in the proceedings initiated at the behest of State appellant while filing the present appeal under Section 378(3) CrPC against the judgment of acquittal, this Court has to consider the law on the subject.
7. This Court has to bear in mind the judicial verdict and the mandate so envisaged by the Hon'ble Apex Court wherein the courts of law have been cautioned while exercising jurisdiction under Section 378(3) of the Cr.P.C. when the courts of law have been occasioned to deal with the Government Appeal against the acquittal.
8. The Hon'ble Apex Court in the series of decisions have been consistently mandating that it is well settled principle of law that appellate courts hearing the appeal filed against the judgment and the order of the acquittal should not overrule or otherwise disturb the judgment of acquittal, if the appellate court does not find substantive and compelling reasons for doing so.
9. Nonetheless if the trial courts conclusion with regard to the facts is palpably wrong if the trial court decision was based on erroneous view of law and the judgment is likely result in grave miscarriage of justice and the approach proceeds towards wrong direction or the trial court has ignored the evidence or misread the material evidence which should have determining the factor in the lis of the matter then obviously the appellate court is right in interfering with the order acquitting the accused. However, Hon'ble Apex Court has further held that in case two views are possible and the view so taken by the trial court while acquitting the accused is a plausible view then in the backdrop of the fact that there is double presumption of innocence available to the accused then obviously the appellate court should not interfere with the order of acquittal.
10. The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219.
11. In the background of the proposition of law so mandated by the Hon'ble Apex Court in the above noted decisions, the judgment of the Trial Court is to be scrutinized.
12. To begin with this Court, while determining the fact as to whether any illegality or perversity has been committed by the learned Trial Court while acquitting the accused herein, the stand so taken by the prosecution as claimed to be supported by the depositions of the prosecution witnesses are to be first analyzed.
13. Smt. Anita appeared in the witness box as PW-1, while claiming that she is the informant and the daughter of the deceased and the wife of the accused herein. As per her deposition, she got married with the accused herein 13 years back and was blessed with a female child. According to her, when her daughter was about 5-6 days then the accused while torturing and administrating beating threw her out of his house and despite her father being the deceased requested the accused to keep her daughter and also anticipated that good sense will prevail, the informat was not given entry in her inlaw's place. In her deposition PW-1 Smt Anita came up with the stand that two days prior to the lodging of the FIR on 17.2.2010, the deceased had gone to the agricultural farm for watering the same and at 2:00 in the noon, he came back and apprised that he received a call from the accused, who happens to be his son-in-law calling him at Bisauli and despite given a red signal by the informant and his mother / PW-2, the deceased proceeded while saying that his son in law has called and took jewellery with him. According to deposition of PW-1, the deceased did not return till 4:00 P.M, in the evening and when call was made on the mobile phone of the accused, same was discovered to be switched off and on 17.2.2010 the dead body of the deceased was found. In her statement, PW-1 has come up with further stand that her father had been disposed of by the accused herein along with his maternal cousin and she had got written the FIR with the aid and the assistance of one Sri Dinesh Kumar son of Sukh Lal and she had also put her signature and thumb impression thereon. According to PW-1, even in the cremation ceremony of his father, the accused was not present and thus by all eventualities, she is sure that his father has been disposed of by the accused. It has been further stated in the deposition that 10 days post demise of the father of the informant the accused met him when she was going to get medicine for her daughter and accused came near a temple and stopped the movement of the informant while making a confession that he had committed a wrong that he had strangulated her father.
14. PW-2, Rupendra who happens to be the son of the deceased appeared in the witness box and according to him, on the fateful day, the deceased had on the request so made through mobile phone, gone to meet with the jewellery and after two days, his dead body was found. In his deposition, PW-2 has further deposed that consequent to the lodging of the FIR, constant search was being made of the accused then the deceased along with two persons came in the village and proceeded to his house and at that point of time, he, his mother and one Nand Ram were present and a confession was made by the accused that he had committed wrong and as he had strangulated his father. As per PW-2, the accused also admitted the fact that he had disposed of the deceased, as he repeatedly asked the deceased to give money, as he was not being given the same and the PW-1 Smt. Anita was again married to a third person, which became the cause of commission of crime.
15. Premwati appeared as PW-3, who happens to be the widow of the deceased and according to her statement, when she was in her house along with his son being PW-2, then the accused came and admitted his guilt showing the motive that he had not paid the money, which was received by the deceased as a sale receipt of the property being sought to be sold.
16. S.I. Raj Rishi Sharma appeared as PW-4 being a formal witness and proved the lodging of the FIR.
17. PW-5 was produced as Nand Ram. He in his statement came up with a stand that he has never given his statement under Section 161 CrPC and he is the neighbour of the deceased and he had further deposed that in his presence the accused did not confess the commission of crime.
18. Dr. Harish Chandra appeared as PW-6, who examined the injuries of the deceased and according to him, there were ligature mark on both the side on the neck which could not come in the case of hanging is done by suicide.
19. Admittedly, as per the prosecution case, there was no eye-witness testimony, rather to the contrary, the case if to be taken as per the prosecution theory is of circumstantial evidence. In order to hold the accused herein guilty, based on circumstantial evidence, then two ingredients have to mark their presence, i.e, (a) every link in the chain of circumstances, necessary to establish the guilt of the accused must be established by the prosecution beyond all reasonable doubts; (b) all the circumstances must be consistently pointing only towards the guilt of the accused.
20. Here in the present case, the deceased as per the prosecution version, received a phone call two days prior to 17.2.2010, when he returned after watering the agricultural filed to his house and at that point of time, the prosecution witnesses, PW-1, PW-2 & PW-3 are stated to be in the house and the deceased after receiving the phone call apprised the prosecution witnesses PW's-1, 2 and 3 that he has received a phone call from the accused, who happens to be his son-in-law calling him at Bisauli and despite being resisted not to proceed, the deceased after taking the jewllery proceeded at 2 in the noon and when his whereabouts were not found till 4 in the non, then constant search was made and on 17.2.2010, the body of the deceased was found. As a matter of fact, barring the receipt of the call requiring the deceased to be present in Bisauli at the instance of accused, there is no other evidence. Moreso, this Court finds that the first information report was lodged on 17.2.2010 after two days and there has been no attempt on the part of the family members, who obviously are PW's 1, 2 and 3 regarding lodging of the FIR after missing of the deceased. Even otherwise, no recovery of any offending material was found so as to link the accused for commission of the crime.
21. None the less, only a cloth (in the shape of gamchha) was found on the neck of the deceased accompanied by ligature marks on the neck. Another aspect which needs to be noticed at this juncture is with regard to the fact that when the deceased did not return on Monday, as stated in the FIR being 15.2.2010, then why the FIR was lodged after two days on 17.2.2010. The said issue also assumes significance, when the deceased was being resisted by the informant and the family members not to honour the phone call while proceeding to the accused with whom, there was certain differences in that regard. There has been no explanation worth consideration or plausible as to why there was delay of two days, particularly when the deceased had gone with jewellery and he did not return back. Even in fact, there is no explanation in delay in lodging of the FIR, which is one of the factors, which is to be considered along with other factors in order to determine as to whether the judgment and order acquitting the accused was passed in the right perspective and as per the four-corners of law.
22. The Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of Thulia Kali Vs. The State of Tamil Nadu, (1972) 3 SCC 393, has observed as under:-
"The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
23. In the case of Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala, (1973) 3 SCC 114 the Hon'ble Apex Court has observed as under:
"11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."
24. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."
24. In the case of Meharaj Singh Vs. State of U.P., (1994) 5 SCC 188, the Hon'ble Apex Court has observed as under:-
"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 'ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
25. In the case of Thanedar Singh Vs. State of M.P., (2002) 1 SCC 487, the Hon'ble Apex Court has observed as under:-
"6. The High Court was of the view that the judgment of the Trial Court was perverse and its approach was unreasonable. The first comment made by the High Court was that the Trial Court did not assign any reason for disbelieving the FIR. The High Court found no infirmity in the FIR having regard to the fact that the part played by the accused appellant was specifically mentioned in the FIR. But, the High Court missed to note the crucial facts adverted to in Para 5.2 (supra) which cast a serious doubt on the correctness of the FIR, especially the time and date of its recording. The learned Sessions Judge particularly adverted to the fact that the prosecution did not produce the original record of police station relating to the receipt and despatch of FIR inspite of an order passed to that effect. Though the Trial Judge was not careful enough in recording a specific finding that the prosecution failed to clear the doubt regarding the date and time of recording the FIR, in sum and substance, that is what the learned Trial Judge purported to say. The observations of the Trial court were not properly understood by the High Court when it proceeded on the basis at paragraph 12 that the Trial court found fault with the delay in lodging the complaint at 9 A.M. on the next morning. But, it is to be noted that nowhere in the judgment, the trial court observed that the complaint having been lodged and recorded at 9A.M. next morning, that itself would tantamount to delay."
23. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."
24. It is well settled that the prosecution has to prove beyond doubt that every link in the chain of the circumstances establishes the guilt of the accused beyond reasonable doubt and all circumstances are constantly pointing out towards the guilt of the accused. However, in the present case in hand, this Court finds that barring the extra-judicial confession, there is nothing either pleaded or proved in order to link the accused while committing crime. As per prosecution witnesses, motive for commission of the crime by the accused was attributed to the fact that the accused was not given the money, which was with regard to the sale proceeds of the property in question. Barring making such allegations there is nothing on record as to what was the total amount of the sale receipts and which was the property, which was disposed of, as the entire prosecution theory, sans details broadly also. In so far as, the allegations with regard to a criminal case of murder, so stated to be pending against the accused herein, PW-1 has though deposed, but neither any detail nor any document was produced before the learned Trial Court in that regard. Even otherwise, the element of motive, also stands unproved by the prosecution, which also assumes significance.
25. In Criminal Appeals No. 333-334 of 2017, Shailendra Rajdeo Paswan vs. State of Gujarat dated 13.12.2019, in paragraph-13 has observed as under: -
"13. This court in the case of Sharad Birdichand Sharda v/s State of Maharashtra, reported in 1984(4) SCC has enunciated the aforesaid principle as under:-
"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence"."
26. Now another facet, which needs to be discussed is the stand taken by the prosecution based upon extra-judicial confession. According to the prosecution, the accused had admitted his guilt and made an extra-judicial confession that he had committed the said crime, while strangulating the deceased, which ultimately resulted into death. According to PW-1 after 10 days of the death of the deceased, the accused met PW-1 being the informant and his wife when the informant was going with her child for getting medicines and near the temple, the accused confessed his guilt. PW-1 has further deposed that on the road, there was other persons also there, but when she asked them to catch hold the deceased, then they did not do so. PW-2 Rupendra, who happens to be the brother of the informant and the son of the deceased has come up with a stand that when the police was making constant search of the accused, then the accused came to his house and at that point of time, he along with his mother (PW-3) and Nand Ram (PW-5) were present, wherein the accused made extra-judicial confession regarding commission of the crime.
27. PW-3 being the widow of the deceased, Premwati in her statement has deposed that the accused made an extra-judicial confession regarding commission of the crime, while coming with a stand that at that point of time, PW-2 Rupendra, her son, PW-5 Nand Ram, her son, Naresh and Suresh were present. So far as Nand Ram PW-5 is concerned, he turned hostile and made a statement that no extra-judicial confession was made by the accused in his present. So far as Naresh and Suresh are concerned, they were not brought in the witness box and no statement whatsoever was made or taken, which itself shows that the entire story so sought to be build up by the prosecution is erected on weak foundation. PW-2 and PW-3 are the interested witnesses, as they are the son and the widow of the deceased.
28. The Hon'ble Apex Court in the case of Mohd. Azad @ Samin vs. State of West Bengal, 2008 (15) SCC 449, in paragraphs 21 and 22 observed as under:-
"21. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 (12) SCC 438 and Kusuma Ankama Rao's case, 2008 (13) SCC 257.
22. "18. Confessions may be divided into two classes i.e. judicial and extra- judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (for short the `Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.
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 value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. 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, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
29. In the case of Sansar Chand vs. State of Rajasthan 2010 (10) SCC 604, Hon'ble Apex Court in paragraph 29 observed as under:-
"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 vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307."
30. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed 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 Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that 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 extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that:
"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. [(1998) 6 SCC 108], the Court stated the dictum that:
"4. There is no doubt that conviction can be based on extrajudicial 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 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 the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that:
"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 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:
"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 the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], 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:
"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; (iii) corroboration.
X
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 the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"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 Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Mahasrashtra and Mohd. Azad v. State of W.B.]
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 the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :
"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. S.K. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
16. Upon a proper analysis of the above-referred 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:
The Principles
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. Further, in the case of Ram Lal vs. State of Himachal Pradesh 2019 (17) SCC 411, Hon'ble Apex Court in paragraphs 13 to 15 observed as under:-
"13. Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in Sahadevn and another vs. State of Tamilnadu (2012) 6 SCC 403, this court held as under:-
"15.1. In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 this Court stated the principle that:
"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."
15.4. 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 Ram (2003) 8 SCC 180 stated the principle that:
"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:
"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...."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 held that:
"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 Thimaa Raju v. State of Mysore (1970) 2 SCC 105, Mulk Raj v. State of U.P. AIR 1959 SC 902, Sivakumar v. State of Inspector of Police (2006) 1 SCC 714 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Pavaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and Mohd. Azad alias Shamin v. State of W.B. (2008) 15 SCC 449]"."
32. Net analysis of the facts of the case while applying the ratio so culled out by the Hon'ble Apex Court as referred to herein above shows that inescapable conclusion stands drawn that the prosecution has miserably failed to link the accused with the commission of crime on the count of delay in lodging of the FIR, absence of motive, weak extra-judicial confession, as well as non-linking of the circumstances so as to even put the case under parameters of circumstantial evidence.
33. This Court further finds that the view taken by the learned Trial Court is a possible view and there is no justification in adopting any other view. The considerations, which weighed the learned Trial Court while acquitting the accused itself are based on the ocular testimony and the evidence so adduced in support thereof and in absence of any perversity was committed by the learned Trial Court, this Court finds its inability to hold the judgment as perverse.
34. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
35. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
36. Since the application for granting leave to appeal has not been granted, consequently, present government appeal also stands dismissed.
37. Records of the present case be sent back to the concerned court below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 14.07.2022
N.S. Rathour