Allahabad High Court
Raju vs State Of U.P. on 20 February, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:24937-DB Court No. - 45 Case :- CRIMINAL APPEAL No. - 4815 of 2014 Appellant :- Raju Respondent :- State of U.P. Counsel for Appellant :- Chandra Prakash Pandey Counsel for Respondent :- Govt.Advocate Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Sri Chandra Prakash Pandey, learned counsel for the appellant, learned A.G.A. for the State and perused the lower Court record.
2. The present appeal arises from the judgement and order dated 21.11.2014 passed by Mr. Mohammad Mateen Khan, learned Special Judge (SC/ST Act), District Farrukhabad in Sessions Trial No. 342 of 2003 (State Vs. Raju son of Sri Gyan Chandra Jatav) arising out of Case Crime No. 380 of 2003 under Sections 376, 302, 201 I.P.C. Police Station Qayamganj, District Farrukhabad whereby the accused-appellant has been convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment along with fine of Rs. 10,000/- and in default in payment of fine to further undergo additional imprisonment of one year; under Section 201 I.P.C. to undergo rigorous imprisonment of five years along with fine of Rs. 10,000/- and in default in payment of fine to further undergo imprisonment of six months. Both sentences run concurrently. The accused-appellant has been acquitted for the offence under Section 376 I.P.C.
3. The prosecution story arose on the strength of F.I.R., lodged on 04.08.2003 in Case Crime No. 380 of 2003, under Sections 302, 201 I.P.C. Police Station Qayamganj, District Farrukhabad. That F.I.R. is (Exhibit Ka-12). It was lodged on the strength of written report (Exhibit Ka-1a) submitted by Sri Rajendra Singh (P.W.2), the father of the deceased minor girl 'X', as written by the scribe Balbeer Singh (not examined at the trial). That F.I.R. narrated the fact that 'X' was found missing at about 03:00 P.M. on 31.07.2023, while she was playing on a swing in front of the house of one Chandra Bhan (not an eye-witness and not examined at the trial). At that time, Bahadur son of Balwant (P.W.4) saw the accused speak to 'X' and thereafter take her away, from that place. When 'X' did not return home by evening. P.W.2 launched a search for her but could not trace her. He further stated that he disclosed the fact of disappearance of 'X' to his wife (P.W.1 at the trial) and they tried to search 'X' out with the help of villagers, in agricultural fields etc. During the course of such search, the dead body of 'X' was recovered from the sugarcane field of Rati Ram (not examined at the trial). However, the F.I.R., does not disclose the date of recovery of the dead body. Next, the F.I.R., narrates Prem Pal (P.W.5) disclosed to P.W.2 that he had seen the accused take 'X' to the sugarcane field of Rati Ram. Later, he saw the accused in a nervous state leave that agricultural field. At that time 'X' was not with him. The F.I.R. further narrates that the fact of last seen evidence was disclosed to him. The written report submitted by P.W.2 dated 04.08.2003 is (Exhibit Ka.1/a). At the same time, to the extent the prosecution has relied, it is relevant to note that two days earlier, the wife of P.W.2 namely Rajanta Devi (P.W.1 at the trial) had submitted the first written report (Exhibit Ka-1) disclosing that 'X' had gone missing on 31.07.2003 while playing on a swing and that search was launched when she did not return home. Her dead body was described to have been discovered on 02.08.2003 in the sugarcane field of Rati Ram. No other fact was stated or disclosed in that written report submitted two days after 'X' disappeared.
4. On such written report (Exhibit Ka.1) Panchayatnama (Exhibit Ka.2) was drawn on 02.08.2003, wherein occasioned by the disclosure made by Rajanta Devi (P.W.1), those proceedings were concluded in the presence of Ram Singh, Raksh Pal, Mahesh Chand, Ramesh Chand (not examined at the trial).
5. Thereupon, the dead body of the deceased 'X' was subjected to autopsy on 03.08.2003 at about 02:35 P.M. by Dr. J.D.Sharma. However, that expert could not be examined at the trial as he died before he could depose. The autopsy report was proved and marked as (Exhibit Ka.16). It records that the dead body discovered was in an advanced stage of decomposition. As to ante-mortem injury, it has been recorded as below:-
"1. Incised wound 11 c.m. X 3 c.m. X cervical vertebra deep at level of thyroid cartilage neck structure cut. C4 partially cut, on cut surface, dark (vertebra) red colour present."
6. As to the cause of death, it has been opined as under:
"In my opinion cause of death is (sic) shock and hammorrhage as a result of ante mortem injury"
In the opinion of the doctor death may have been caused three days earlier, i.e. on 31.08.2003.
7. On 20.08.2003, the appellant was arrested and a Recovery Memo was drawn by the Station House Officer, Narsingh Pal Singh (P.W.8 at the trial) to establish recovery of the weapon of assault-a "Khurpi", from the agricultural field of Rati Ram. That recovery memo is Exhibit Ka.10. However it does not record any disclosure statement either in the first part that may have related to the statement made by the accused to the Investigating Officer in the presence of two independent witness expressing his willingness to help that recovery and it also does not record the disclosure in the second part, to establish that upon such recovery being made in the presence of independent witnesses,, the accused described the recovered the weapon to be the weapon used to assault 'X'.
8. During the investigation, other statements were recorded by the Investigating Officer. Consequently he submitted Charge Sheet dated 11.09.2003 (Exhibit Ka.11) In such circumstances, upon being case committed to trial, following three charges were framed:-
"1- यह कि दिनांक 31.07.03 को समय करीब 3.00 बजे शाम वहद स्थान खेत ईख रतीराम ग्राम गुलवाननगर थाना कायमगंज जिला फर्रूखाबाद की सीमा में आपने वादी की पुत्री कु० शिल्पी उम्र 7 वर्ष के साथ उसकी इच्छा के विरूद्ध बलात्संग किया। इस प्रकार आपने ऐसा अपराध किया जो भारतीय दण्ड संहित की धारा 376 के अधीन दण्डनीय है और मेरे प्रसंज्ञान में है।
2- यह कि उक्त दिनांक समय व स्थान पर आपने वादी की पुत्री कु० शिल्पी उम्र 7 वर्ष की जान से मारने के आशय से खुरपी से गर्दन काटकर उसकी हत्या की। इस प्रकार आपने ऐसा अपराध किया जो भारतीय दण्ड संहिता की धारा 302 के अधीन दण्डनीय है और मेरे प्रसंज्ञान में है।
3- यह कि उक्त दिनांक समय व स्थान पर आपने वादी की पुत्री की हत्या करके उसके शव को रतीराम के गन्ने के खेत में छिपाकर साक्ष्य समाप्त कर ने की कोशिश की। इस प्रकार आपने ऐसा अपराध किया जो भारतीय दण्ड संहिता की धारा 201 के अधीन दण्डनीय है और मेरे प्रसंज्ञान में है। "
9. At the trial, besides the above documentary evidence, the prosecution sought to rely on oral testimony of nine prosecution witnesses. Rajanta Devi (P.W.1), Rajendra Singh (P.W.2), S.I.Vijay Singh (P.W.3), Bahadur (P.W.4), Prem Pal (P.W.5), Rakesh (P.W.6), Pramod Kumar (P.W7), Investigating Officer Narsingh Pal Singh (P.W.8), Kanhaiya Lal (P.W.9) Retd. Assistant Doctor Ram Manohar Lohiya Hospital, Farrukhabad.
10. As to the fact occurrence, P.W.1 led oral evidence and stated that the dead body of the victim girl 'X' was discovered on the 3rd day of her disappearance. She proved the place where that recovery was made. She further proved the written report (Exhibit Ka.1) submitted by her on 02.08.2003, was written by Jagdish. During her examination-in-chief, she did not name the present appellant as the person who caused the occurrence. During her cross examination, she further stated, after 'X' went missing (at about 03:00 P.M. on 31.07.2003). She searched for 'X' and spoke to Rajesh, Sarvesh (both not examined at the trial), and Badan Singh (neither examined at the trial) to ascertain the whereabouts of 'X' but she could not learn of the same. As to the discovery of the dead body of the deceased, she confirmed the narration made in her report (Exhibit Ka.1). As to the state of the dead body, she described that the same had been eaten by wild animals and some flesh remained attached to bones. She further disclosed that she identified the clothing of 'X" found at that time and that she recognized the dead body from those clothes. As to how, she identified the clothing as that of 'X', she stated that the frock size of 'X' was 12 which number was found written on the tag found attached to such clothes.
11. The next witness P.W.2 (first informant) first made a statement as to the actual occurrence - with respect to the disappearance of 'X'. However, it is a fact that he is not an eye-witness of that occurrence. Then, he stated, Bahadur (P.W.4) had disclosed to him, first 'X' had refused to accompany the accused person but the latter persuaded her by offering a sweet. Then, he described Prempal Pal (P.W.5) had disclosed to him that he had seen the accused held 'X' by her hand and took her towards the sugarcane field of Rati Ram and that he further saw the accused a little while later, leaving that place, in a nervous state. During the course of his cross-examination, he further stated that he had not seen 'X' play on the swing but he was told about that occurrence by other villagers. He further described, information of last seen evidence by Bahadur (P.W.4) had been disclosed to him by said witness within 2-4 days of the occurrence.
12. P.W.3 S.I. Vijay Singh proved the F.I.R.
13. Bahadur (P.W.4) entered the witness box and stated, he had seen the accused offer sweet to 'X' and had also seen the accused take 'X' towards the agricultural field of one Brijesh (not Rati Ram). He further stated (during his cross examination-in-chief) that he had learnt about the disappearance of 'X', the next day which would be 01.08.2003. He volunteered to further state that he had shared this information with the informant Rajendra (P.W.2) the father of 'X', then, he also stated that Prem Pal (P.W.5) had seen the accused take 'X' with him to the sugarcane field. During his cross examination, he further stuck to his stand that he had shared his information with Rajendra Singh (P.W.2), the next day.
14. Prem Pal (P.W.5) was examined next. The statement recorded during his examination in chief is relevant. We consider it appropriate to extract it in entirety. It reads as under:-
"दि० 31.07.2003 को दिन बृहस्पतिवार को लगभग तीन साढ़े तीन बजे जब मैं चारा लेने के लिए खेतो की तरफ गया था तब मैंने हाजिर अदालत मुल्जिम राजू को रतीराम के गन्ने के खेत से निकलते हुए देखा था यह सफेद शर्ट व काली पैन्ट पहना था। शिल्पी की लाश उसी गन्ने की खेत में दिनांक 02.8.03 को मिली थी"
15. Then during his cross examination, he specifically stated that he had not seen 'X' accompany the accused or enter the sugarcane field of Rati Ram and he had only seen the accused leave that field alone. He also did not prove the element of nervousness attributed to the appellant, when he was seen leaving the agricultural field of Rati Ram.
16. Then, prosecution witnesses Rakesh and Pramod Kumar (P.Ws. 6 and 7 respectively) tried to prove extra judicial confessions attributed to the accused person, wherein he is described to have confessed to those witness about the occurrence. Thus, it is also attributed to the appellant that he had committed rape on 'X'. Those confessions are stated to have been made on 02.08.2003 and 05.08.2003.
17. In such circumstances, learned court below has believed the prosecution story to the extent it narrates the appellant had caused the occurrence of murder of 'X' and destroyed evidence of that. At the same time, the allegation of rape committed on 'X' has not been found proven.
18. Learned counsel for the appellant submits that the prosecution story is based entirely on circumstantial evidence and the alleged extra judicial confessional statement of the accused person. In so far as circumstantial evidence is concerned, it remains doubtful inconsistent, incomplete and vague. Referring to the statements of the prosecution witnesses and their undisputed conduct, it has been further stated that there are inherent contradictions in the prosecution story as may never allow a singular unbroken chain of evidence to arise and in any case, they leave many gaps open as may allow for reasonable possibilities to arise and exist inconsistent to the hypothesis of guilt of the appellant. No conclusion of guilt may be reached on the strength of such evidence. Further, as to the extra judicial confessional statements, it has been urged that no reliance can be placed thereupon, in absence of credible corroboration, including as to motive. A heavy charge of murder may never be found proven on the strength of such extra judicial confessional statement alone.
19. On the other hand, learned AGA would submit that the occurrence involves a minor. Referring to the close relationship of the appellant with the deceased, being a relative, 'X' would have accompanied the appellant on trust. She was brutally done to death. The appellant had confessed the same. The chain of circumstances is complete. The conviction may be maintained.
20. Having heard learned counsel for the parties and having perused the record, undoubtedly, circumstantial evidence is admissible evidence. Yet, in character it is completely different from direct evidence. Yet, where an offence is proven beyond reasonable doubt on the strength of such evidence, it may not only be admissible but also weighty enough to offer and sustain conviction of an accused person.
21. In Hanumant Vs. State of Madhya Pradesh, (1952) 2 SCC 71, a three-judge bench of the Supreme Court provided a functional rule for application by Courts, at criminal trials, involving circumstantial evidence. In that it was provided as below :
"12. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ext. P-3A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case."
(emphasis supplied)
22. Next, in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) Cri.L.J. 178, Supreme Court was pleased to observe as below:-
"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 & Anr. v. State of Maharashtra where the following observations were made:
"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.
154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry,(l) thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."
155. Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'.
156. This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay(2) Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration(l). Mohan Lal Pangasa v. State of U.P.,(2) Shankarlal Gyarasilal Dixit v. State of Maharashtra(3) and M.C. Agarwal v. State of Maharashtra(4)-a five-Judge Bench decision.
157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. The State of Bihar(5), to supplement this argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as started above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation-such absence of explanation of false explanation would itself be an additional link which completes the chain."
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
"(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
(emphasis supplied)
23. The law then existing was next summarised in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors., 1989 Supp (2) SCC 706. Therein it was observed as below :
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
20. This Court in Palvinder Kaur v. State of Punjab [(1952) 2 SCC 177 : AIR 1952 SC 354 : 1953 SCR 94 : 1953 Cri LJ 154] has pointed out that in cases depending on circumstantial evidence courts should safeguard themselves against the danger of basing their conclusions on suspicions howsoever strong.
21. In Chandrakant Ganpat Sovitkar v.State of Maharashtra [(1975) 3 SCC 16 : 1974 SCC (Cri) 712] it has been observed:
"It is well settled that no one can be convicted on the basis of mere suspicion, however strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety."
22. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487] this Court has reiterated the above dictum and pointed out that the suspicion, however great it may be, cannot take the place of legal proof and that "fouler the crime higher the proof."
24. Applying the above rule, in Kishore Chand Vs. State of H.P., (1991) 1 SCC 286, it was further observed as below :
"4. The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.
5. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.
6. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone."
(emphasis supplied)
25. In Jaharlal Das Vs. State of Orissa, (1991) 3 SCC 27, the Supreme Court cautioned that in cases depending largely upon circumstantial evidence, the Courts may remain careful of conjectures of suspicions, taking place of legal proof. In that it was observed as below :
"9. It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused alone has committed the offence."
(emphasis supplied)
26. In the case of State of U.P. Vs. Ashok Kumar Srivastava, (1992) 1 SCR 37, the Supreme Court pointed out, great care must be taken in evaluating circumstantial evidence and if the evidence relied is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt of the accused persons, and no other.
27. In the case of Sanatan Naskar & Anr. Vs. State of West Bengal, (2010) 8 SCC 249, the Supreme Court observed as under:-
"13. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eye witness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of accepted principles in that regard."
28. First, the occurrence is not disputed. At the same time, according to the prosecution story, it occurred on 31.07.2003 during day hours, at about 03:00 PM. At that time, 'X' was playing on a swing outside the house of one Chandrabhan. Her disappearance was noticed by her parents (P.W.1 and P.W.2), when she did not return home that evening (and not at earlier point of time). According to prosecution story, search was launched immediately by her parents (P.W.1 and P.W.2). However, no recovery could be made either on 31.07.2003 or on 01.08.2003.
29. Second, the first written report (Tehrir) to the police may have been made after more than 48 hours, on 02.08.2003 by the mother of 'X' namely Rajanta Devi (P.W.1). That written report is Exhibit-Ka-1. However, no FIR or missing person report was registered prior to that. Though, that written report clearly reported that the body of the deceased had been recovered in a decomposed state on 02.08.2023, no allegation was made of the person who may have either caused the disappearance or death 'X', though according to (P.W.4) it was disclosed to the father of 'X' on 01.08.2003 itself that the appellant was last seen with 'X' on 31.07.2003, both while the latter was playing at a swing and also before entering the sugarcane field of Rati Ram.
30. Third, a second written report emerged, on the fourth day from the occurrence, on 04.08.2023 - by P.W.2, the father of the deceased. In that, he disclosed that the appellant had caused the occurrence, inasmuch as, he was last seen with the deceased and that he had made her accompany him. He first disclosed that Bahadur (P.W.4) had seen that occurrence and further that Prem Pal (P.W.5) had also seen the deceased accompany the appellant to the place of occurrence as also the latter had also seen him leaving the place of occurrence alone, in a nervous state, after causing the occurrence.
31. Therefore, the prosecution story first relies on the depositions of P.W.4 and P.W.5, both witness of last seen. In so far as P.W.4 is concerned, he specifically stated that he had shared information (of last seen), with P.W.1 (father of the deceased), the next day i.e. on 01.08.2003. That statement he maintained during his cross-examination. In turn P.W.4 stated that he had shared that information to P.W.2 on 01.08.2003. Once it is the proven case of the prosecution that due information of last seen had been received by the father of the deceased (P.W.2) on 01.08.2023, in normal circumstances (as may be presumed by this Court), P.W.1 and P.W.2 being husband and wife who were living together and searching for 'X', at the same time and at the same place, would have shared that information between them. Yet on 02.08.2003, P.W.1 did not make such disclosure or allegation of such occurrence and she did not make any accusation against the accused in her written report submitted on 02.08.2003, that too after the discovery of dead body of 'X'. She also did not explain such fact in her deposition. P.W.2 did not lodge any report prior to 04.08.2003. No explanation whatsoever exists for such vital gaps in the prosecution story when it is a proven fact that the name of the appellant had been disclosed to P.W.2 on 01.08.2003 itself and the dead body of 'X' had been recovered on 02.08.2003. P.W.2 did not act immediately. Rather he lodged the F.I.R. on 04.08.2003. In a case such as this, based purely on circumstantial evidence, the above wholly unnatural behavior itself creates grave doubt as to the reliability of the prosecution story as narrated at the trial. If it was known to the father of 'X' (on 01.08.2003), that the latter had been last seen with the appellant and also that he had taken her away to the alleged place of occurrence and left from there alone, it is not only doubtful but nearly unbelievable that such information was withheld in the written report submitted by the mother of the deceased (P.W.1), on 02.08.2003, after the discovery of the dead body of the deceased. Equally, it is unbelievable that in any case, the decomposed body of 'X' having been recovered on 02.08.2003, and all facts being known to the father of 'X' (P.W.2) since 01.08.2003, he would lodge the F.I.R. after about 48 hours thereafter.
32. Therefore, the evidence of last seen, requires a careful screening before it may relied to sustain the conviction. In fact, as to the presence of Bahadur (P.W.4) itself, the Investigating Officer admitted that no indication exists on the site-plan prepared by him, to establish if it was feasible or humanly possible for the said witness to have last seen 'X' with the appellant from his house, that house being not marked on the site plan. Though, we are aware that the site-plan is not a piece of substantive evidence, at the same time, in the context of a case arising solely on the circumstantial evidence and confessional statement, each piece of evidence must be carefully tested and each link of the chain must be clearly seen to exist and connected to the other as to form an unbroken chain of a singular undoubtable story as may lead to conviction of the accused person. To this extent, the failure on the part of the Investigating Officer to examine that aspect may weigh with us in the entirety of the facts and circumstances of the case, that may otherwise be found to exist.
33. Then, it is critical that the key witness of last seen, namely, Prem Pal (P.W.5) did not support the prosecution story, in the most vital part. According to the FIR and the statement of P.W.2 (Rajendra Singh, father of the deceased), and Bahadur (P.W.4) this witness (i.e. P.W.5), had last seen the deceased with the appellant enter the sugarcane field of Rati Ram with 'X' and according to P.W.2 this witness had also seen the accused coming out of that field alone in a nervous state. Yet, during his examination-in-chief, itself P.W.5 did not prove this most vital aspect of the prosecution story-of having last seen 'X' with the appellant enter the sugarcane field of Ratiram. He only stated that he had seen the appellant alone come out of the field of Ratiram. P.W.5 did not prove that he noticed any nervous behaviour of the appellant at that time. No re-examination was conducted by the prosecution of this key witness. Thus a gaping hold arose in the prosecution story. It has been left unattended.
34. In view of the above discussion, we are unable to offer credence beyond reasonable doubt as to the evidence of 'last seen'. It is wholly doubtful, if either P.W.4 or P.W.5, last saw 'X' with the appellant. That evidence for whatever it may be arose worth belatedly. It had clearly not arisen till 0408.2003, i.e. upto about 2 days from the discovery of the dead body of 'X' on 02.08.2003. We may have considered it further but for the metually conflicted statements of P.W.1 and P.W2 on one side and that of P.W.4 on the other, as to the date and time when P.W.2 was given information of last seen by P.W.4. The proven testimony of P.W.1 the mother of the deceased as is consistent with her written report dated 02.08.2003 clearly establishes, that she was not aware of such facts till two days after the occurrence. She being wife of P.W.2, it cannot be accepted (on it's own) that P.W.2 would not have told her of the fact of last seen, on 01.08.2003 itself, when P.W.4 told him of the same.
35. It may be noted that the dead body of 'X' was found in a highly decomposed state. According to the mother of the deceased (P.W.1)-not a medical expert but a fact witness yet, it cannot be ignored that according to her testimony, only some flesh may have remained attached to the bones of the dead body discovered on 02.08.2023. As to identification, she did not state that she identified it with the body with any physical feature of 'X' or with any particular clothing described in any detail, but only with the size of the clothing described as '12'. No Serological or DNA test was performed and no scientific evidence was led to establish either the age of the deceased or the identity of her gender or the identity of her person. Even thereafter the prosecution story did not emerge for two further days.
36. Then, absolutely no motive has been proved. In a case of circumstantial evidence, the Court may remain careful in testing the chain of circumstances brought by the prosecution and test if each link of the chain connects to the other to ensure that the completed chain is welded together with consistency of motive. Only motive assigned by the prosecution is of rape committed on 'X' prior to her murder. To that extent, the learned court below has itself not believed the prosecution story and has not convicted the accused on that charge. Thus, there is no motive proven to exist with the accused appellant-to have caused the occurrence. Merely, because he happened to be a relative, who may have enjoyed a position of trust with the deceased 'X', may never be enough nor it may be a ground to establish that the occurrence had been caused by such a person.
37. On the recovery, especially of assault weapon and the requirement of Section 27 of the Indian Evidence Act, 1872, in Earabhadrappa vs State of Karnataka, (1983) 2 SCC 330, the Supreme Court observed as below:
"8. For the applicability of Section 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must "relate distinctly" to the fact discovered. In the present case, there was a suggestion during the trial that PW 26 had prior knowledge from other sources that the incriminating articles were concealed at certain places and that the statement Ex. P-35 was prepared after the recoveries had been made and therefore there was no "fact discovered" within the meaning of Section 27 of the Evidence Act. We need not dilate on the question because there was no suggestion made to PW 26 during his cross-examination that he had known the places where the incriminating articles were kept. That being so, the statement made by the appellant Ex. P-35 is clearly admissible in evidence."
(emphasis supplied)
38. Then, in Bodhraj vs State of J & K, (2002) 8 SCC 45, the Supreme Court further observed as below:
"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659 : AIR 1972 SC 3] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828 : 1976 SCC (Cri) 199 : AIR 1976 SC 483] . The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
(emphasis supplied)
39. Then, a three-judge bench of the Supreme Court in Ramanand alias Nandlal Bharti vs State of Uttar Pradesh, (2022) SCC OnLine SC 1396, further elaborated that principle in law and lucidly expressed the same as below:
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW-7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place."
(emphasis supplied)
40. In Subramanya vs State of Karnataka, (2023) 11 SCC 255, the Supreme Court again explained the above principle as below:
"78. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
41. Recently, that principle has been reiterated by another three-judge bench decision of the Supreme Court in Rajesh & Anr. vs State of Madhya Pradesh, (2023) 15 SCC 521.
42. As to the alleged confessional statement, suffice to note, those are extra judicial confession. In absence of other fact proven to corroborate the facts disclosed in the extra judicial confession, it would be dangerous to sustain the conviction on the same. The only corroboration prosecution may have sought is to establish through the recovery of a 'Khurpi'. Even then, no bloodstain was found on the 'Khurpi'. The disclosure statements were not proven. At any rate, no motive could be established by the prosecution. Even there, in absence of due compliance of requirement of Section 27 of the Evidence Act and in face of reasonable doubts pervading the credibility of the prosecution story, such recovery may not be relied to seek corrboration.
43. Then, way of principle, an extra-judicial confession may remain admissible evidence. If admitted, it would take the character of direct evidence and not circumstantial evidence. In absence of definition of confession, the Supreme Court dealt with the issue of admissibility of confessions in light of provisions of Sections 24 to 30 of the Indian Evidence Act. In Sahoo vs State of U.P., (1965) SCC OnLine SC 60, it was first observed as below:
5. Before we consider whether the circumstances narrated above would stand the said rigorous test, we will at the outset deal with the contention that the soliloquy of the accused admitting his guilt was not an extra-judicial confession as the courts below held it to be. If it was an extra-judicial confession, it would really partake the character of direct evidence rather than that of circumstantial evidence. It is argued that it is implicit in the concept of confession, whether it is extra-judicial or judicial, that it shall be communicated to another. It is said that one cannot confess to himself : he can only confess to another. This raises an interesting point, which fails to be decided on a consideration of the relevant provisions of the Evidence Act. Sections 24 to 30 of the Evidence Act deal with the admissibility of confessions by accused persons in criminal cases. But the expression "confession" is not defined. The Judicial Committee in Pakala Narayana v. R. [LR 66 IA 66] has defined the said expression thus:
"A confession is a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.................................."
(emphasis supplied)
44. Then, it was further observed as below:
"5...............................................................................
Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. The following illustration pertaining to a written confession brings out the said idea : A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another; indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing. This aspect of the doctrine of confession received some treatment from wellknown authors on evidence, like Taylor, Best and Phipson. In A Treatise on the Law of Evidence by Taylor, 11th Edn., Vol. I, the following statement appears at p. 596:
"What the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, will be receivable in evidence."
In The Principles of the Law of Evidence by W.M. Best, 12th Edn., at p. 454, it is stated much to the same effect thus:
"Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable."
We also find the following passage in 'Phipson on Evidence', 7th Edn., at p. 262:
"A statement which the prisoner had been overheard muttering to himself if otherwise than in his sleep, is admissible against him, if independently proved..................."
(emphasis supplied)
45. Thereafter, the Supreme Court further considered the issue of weight to be attached to such evidence. Thus, though an extra-judicial confession was first found to be admissible evidence but as to the weight to be attached to it, it was further observed as below:
"6. But, there is a clear distinction between the admissibility of an evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of emotion; a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. The tone may be soft and low; the words may be confused; they may be capable of conflicting interpretations depending on witnesses, whether they are biased or honest, intelligent or ignorant, imaginative or prosaic, as the case may be. Generally they are mutterings of a confused mind. Before such evidence can be accepted, it must be established by cogent evidence what were the exact words used by the accused. Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence."
(emphasis supplied)
46. In Jagta Vs. State of Haryana, (1974) 4 SCC 747, it was clearly observed that an extra-judicial confession is in the nature of things, a weak piece of evidence. If it was lacking in probability, there should be no difficulty in rejecting the same. Further, it was observed that the value of confession may be gone into only if its existence is established by leading reliable evidence of the accused having made it.
47. Applying the above principle, in Kishore Chand vs State of Himachal Pradesh, (1991) 1 SCC 286, the Supreme Court observed as below:
"7.............................................................................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."
(emphasis supplied)
48. Again, in Balwinder Singh vs State of Punjab, (1995) Supp (4) SCC 259, the nature and character of extra-judicial confession as a piece of evidence was commented as below:
"10. An extrajudicial 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. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession."
49. In Pakkirisamy vs State of T.N., (1997) 8 SCC 158, a rule of caution was sounded by the Supreme Court to look for reliable corroboration before placing reliance on an extra-judicial confession, it being the weak type of evidence. The Supreme Court observed as below:
"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. 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.............."
(emphasis supplied)
50. The above rule was reiterated by the Supreme Court in Kavita vs State of T.N., (1998) 6 SCC 108.
51. Recently, in S. Arul Raja vs State of Tamil Nadu, (2010) 8 SCC 233, it was first noted that the extra-judicial confession is a judicial corroboration. In that regard, it was observed as below:
"48. The concept of an extra-judicial confession is primarily a judicial creation, and must be used with restraint. Such a confession must be used only in limited circumstances, and should also be corroborated by way of abundant caution. This Court in Ram Singh v. Sonia [(2007) 3 SCC 1 : (2007) 2 SCC (Cri) 1] has held that an extra-judicial confession while in police custody cannot be allowed. Moreover, when there is a case hanging on an extra-judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. This principle has been affirmed by this Court in Ediga Anamma v. State of A.P. [(1974) 4 SCC 443 : 1974 SCC (Cri) 479] and State of Maharashtra v. Kondiba Tukaram Shirke [(1976) 3 SCC 775 : 1976 SCC (Cri) 514] . It is significant to observe that A-1 has subsequently sought to retract this statement upon his arrival in Tamil Nadu."
(emphasis supplied)
52. Not to discard this type of evidence but perhaps only to lay parameters for its reliability and use at criminal trials, the Supreme Court further elaborated as below:
"50.The evidentiary value of the extra-judicial confession must be judged in the facts and circumstances of each individual case. Extra-judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. However, the extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved, can be relied upon by the courts.
55.In view of the above case law, it is made clear that an extra-judicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extra-judicial confession. Before the court proceeds to act on the basis of an extra-judicial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered along with the two rules of caution: first, whether the evidence of confession is reliable and second, whether it finds corroboration."
(emphasis supplied)
53. Thus, we may first infer that in the present facts, it may not be doubted that P.W.-6 and P.W.-7 did depose at the trial that the appellant had confessed to those witnesses, as to the occurrence. However, it is an undisputed fact that neither witness namely, Rakesh (P.W.-6) and Pramod Kumar (P.W.-7) is related to the appellant. While Rakesh (P.W.-6) described himself to be a manual labourer at a saw-mill where the appellant also used to work, he did not disclose any special or strong relationship of trust enjoyed by the said witness qua the appellant. Pramod Kumar (P.W.-7) clearly described himself to be a nephew of P.W.-1 (father of 'X'). Therefore, to begin with, there is no presumption arising, either that any of the two witnesses may have enjoyed a position of trust qua the appellant as may have encouraged the appellant to make the confession described by those two witnesses.
54. Second, both witnesses i.e. P.W.-6 & P.W.-7 described the confession to be of rape committed by the appellant, on 'X' first, followed by murder as 'X' lost consciousness. However, no evidence of rape committed was found on the dead body of 'X'. Since the doctor G.D. Sharma could not be examined at the trial as he had passed away, it is noted the post mortem report itself does not suggest of any injury noted on the genitals of the deceased. No evidence was led by the prosecution to establish the allegation of rape. No plausible explanation exists why such witness- one being nephew of the first informant and other, distantly related to the mother of 'X' (P.W.-2) would have been divulged such information/ confession by the appellant.
55. Third, in view of such doubts existing we also note, no effort whatsoever was made by the prosecution to prove the exact confession made by the appellant. Thus, the exact words used by the appellant while making such confessions were never attempted to be disclosed to the Court.
56. Thus, we conclude, the extra-judicial confessions set up by the prosecution are wholly unreliable. Thus, that evidence has to be completely disregarded.
57. In view of such facts, we find that prosecution story was not proven beyond reasonable doubts nor the chain of circumstances were proven as may allow for conviction of the appellant for a heavy charge under Section 302 I.P.C. The presence of the appellant either at the place of disappearance of 'X' and or at the place where she is described to have been murdered were not established beyond reasonable doubt. The benefit of doubt that arises must be given to the appellant/ accused person.
58. Accordingly, the appeal succeeds and is allowed. The appellant is in jail and has remained confined for almost 14 years. Let him be released forthwith unless he is wanted in any other case subject to compliance of Section 437-A Cr.P.C.
59. Pending application(s), if any stands disposed in view of final order passed in the instant appeal.
60. The trial Court record along with the copy of this order be transmitted to the court concerned forthwith.
Order Date :- 20.02.2025
S.Ali/Prachi
(Dr. Gautam Chowdhary, J.) (S.D.Singh, J.)