REPORTABL E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1494-95 OF 2009

S. Arul Raja …. Appellant

Versus

State of Tamil Nadu .… Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1.These appeals are directed against the judgment of the Madurai

Bench of the Madras High Court dated 05.08.2009. By the said

judgment, the High Court reversed the judgment of acquittal of the

appellant passed by the Principal Sessions Judge, Tirunelveli, and

convicted the appellant, Arul Raja under Section 302 read with

Section 120-B of the Indian Penal Code, 1860 (“IPC”), and

sentenced him to undergo life imprisonment and to pay a fine of

5000/- in default to suffer three months’ rigorous imprisonment.

He was also convicted under Section 307, read with Section 120-

B of the IPC and sentenced to Rigorous Imprisonment for a

period of three years.

2.The appellant was convicted for murder, attempted murder,

and criminal conspiracy to commit the aforesaid crimes in

connection with the death of Sri Aladi Aruna, a former law

minister of Tamil Nadu, which occurred on 31.12.2004. The facts

in this regard go back to the alleged animosity between the

appellant and Aladi Aruna over the years. The Appellant was

running several educational institutions in the District of

Tirunelveli and Kanyakumari, and had also started an

Engineering College at Athiyuthu in 2000. Subsequently, Aladi

Aruna himself started an Engineering College, proximate to the

one started by the appellant. The relations between both the

appellant and Aladi Aruna, who were on good terms until then,

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were said to have deteriorated after the latter’s direct involvement

in the business sphere of the appellant.

3.Furthermore, in the same month in which Anna University

granted affiliation to the Engineering College run by Aladi Aruna,

it also cancelled the affiliation already accorded to the appellant’s

College. Consequently, many students allegedly left the

appellant’s College to join the institution run by Aladi Aruna.

This situation was also alleged to be responsible for increasing

the existing tension between both the appellant and Aladi Aruna.

4.Appellant has been accused of hatching a conspiracy wherein

he engaged Accused No. 1, Veldurai (hereinafter referred to as

“A1”), and deceased accused, Benny, to murder Aladi Aruna.

5.In pursuance of this alleged conspiracy, Aladi Aruna was

murdered on 31.12.2004, by accused persons Nos. 1 to 4, along

with deceased accused Benny and Auto Bhaskar, who formed

into two groups to commit the act. All of them were subsequently

arrested, with the exception of A1 and deceased accused Benny.

3

In the course of the investigation, it became known that A1 and

Benny had fled to Ahmedabad in Gujarat.

6.On the night of 25.1.2005, a team comprising the Gujarat and

Tamil Nadu Police entered the flat that housed Veldurai and

Benny, and attempted to apprehend them. In the melee that

ensued, A1 was arrested, while Benny consumed cyanide. Both

were taken immediately to the L.G hospital nearby, where despite

being administered treatment, Benny died.

7.In the morning of 26.12.2005, the Executive Magistrate of

Ahmedabad City, Mr. Solanki, went to L.G hospital upon

receiving a written requisition to record the dying declaration of

A1. In his statement made to the Executive Magistrate, A1

implicated the appellant in the crime, and declared that he was

given a contract killing by one S.P. Raja for an agreed

remuneration of Rs. 5,00,000/- out of which he was paid an

advance of Rs. 20,000/-. The Executive Magistrate Mr. Solanki

was examined as PW-30 and testified before the Principal

Sessions Court at Tirunelveli as to the same.

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8.The Executive Magistrate, who took the dying declaration from

A1 has also noted that he was “hale and healthy” while his

statements were being recorded. A1, it is significant to note, was

discharged from L.G. Hospital on the same day, and produced

before the Ahmedabad Magistrate for issue of transit warrant to

Tamil Nadu.

9.The Madras High Court has convicted the appellant primarily

on the basis of this declaration that implicated him in a

conspiracy to murder Arul Raja. The High Court also took into

account circumstantial evidence, such as the motive behind the

act, as well as the statement of a bystander (PW3) who witnessed

A1 and deceased accused Benny entering the premises of the

Appellant’s college on a motorcycle a week before the murder.

10.Being aggrieved by the aforesaid decision, the appellant has

filed the present Special Leave Petition before this Court. We

have heard the learned counsel appearing for the parties at

length.

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11.Counsel for the appellant argued that the statement of A1 is

not a dying declaration within the meaning of Section 32(1) of the

Evidence Act, 1861, since the very fact of his surviving negates

the requirements to be complied in the said provision. Further,

Counsel also argued that this statement is hit by Section 26 of

the Evidence Act, 1872, as it was not recorded in the manner

prescribed by Section 164 of the Code of Criminal Procedure,

1973.

12.Counsel for the appellant also contended that the

requirements of Section 10 of the Evidence Act mandate that

such a statement be made prior to the cessation of the common

intention of the conspiracy. Hence, it was argued that the

statement of A1 made after the murder of Aladi Aruna may not

be used to implicate the Appellant in a conspiracy. In addition,

Counsel has also debunked the testimony of PW3 as inadequate

and insufficient to prove charges of conspiracy against the

Appellant.

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13.In its reply, the Counsel for the State of Tamil Nadu urged

this Court to weigh the collective evidence presented, which, it

was argued, implicates the appellant. In addition to the motive to

eliminate a rival, Counsel also pointed to the telephone

conversation between the appellant and Aladi Aruna’s son (PW8),

which highlighted the animosity between the former and the

deceased.

14.Counsel for the State also submitted that the statement of A1

is not tainted in any manner and hence, is admissible as

evidence. In this regard, Counsel pointed out that there exists

nothing to suggest any mala fide involvement between the

Gujarat and Tamil Nadu Police to extract the confession from

Veldurai. Counsel also contended that the statement was made

in connection with the ongoing investigation surrounding the

suicide of deceased accused Benny, rather than as a purported

dying declaration.

15.In light of the aforesaid arguments, it falls upon us to

consider the matter in terms of three issues. Firstly, whether

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there existed a motive for the appellant to murder Aladi Aruna;

Secondly, whether the appellant conspired with the other

accused to commit the crime; And thirdly, whether A1’s

statement could constitute a valid dying declaration or a

confession or could constitute an evidence in any manner so as

to be used to implicate the appellant for murder.

16.It was contended by the Respondent that the murder of Aladi

Aruna was motivated by the animosity between the latter and the

appellant. The Respondent had seized on the possible existence

of a rivalry between Arul Raja and Aladi Aruna with regard to the

running of their respective educational institutions in the same

area. The cancellation of affiliation of appellant’s college to Anna

University has been alleged to be the catalyst that led the

appellant to murder Aladi Aruna. The High Court also held that

the appellant believed this cancellation of affiliation to be done at

the instance of Aladi Aruna.

17.The aforesaid motive is claimed to have been evidenced by

threats from the appellant. PW8 (Son of Aladi Aruna) has testified

8

to a conversation with the appellant wherein he spoke of “dire

consequences” for having the affiliation of Anna University

removed from his college.

18.However, according to PW 38 (the Chief Superintendent of

Anna University), the cancellation of affiliation was done on the

basis of irregularities in the appellant’s college. Pursuant to an

application submitted by the appellant, the Madras High Court

had also issued a stay on Anna University’s order. Seen in this

light, there does not appear to be any role of the deceased in the

act and hence, the argument that the cancellation of affiliation

compelled the appellant to eliminate Aladi Aruna does not hold

merit.

19.As far as exodus of students from Arul Raja’s college to Aladi

Aruna’s is concerned, the issue can be termed inconclusive at

best. The cancellation of affiliation had been done in August

2004, and new registrations would have to be accepted only in

the next academic year beginning from May/June 2005. PW 21

(a student who used to study in the appellant’s Engineering

9

College), who has testified that nearly 30 students left from the

appellant’s college to Aladi Aruna’s, completed his 12

th

Grade in

the academic year 2004-2005 and joined thereafter. This is well

after the cancellation of affiliation, and hence the testimony fails

to establish the connection between these events and the

escalation of hostilities between the appellant and Aladi Aruna.

20.To the Respondent, these events added together provide a

vital link that illuminates the actions of Arul Raja and his alleged

co-conspirators. However, we find such an argument to be

unconvincing. While it may be true that appellant had grievances

against Aladi Aruna, the chain of events that is said to have

driven the appellant to commit murder do not provide a clear

motive to substantiate the argument of the Respondent, or the

decision of the High Court.

21.In pursuance of this motive, it has been sought to be

established by the Respondent that the appellant conspired with

the other accused to murder Aladi Aruna. This Court in Vijayan

v. State of Kerala reported in 1999 (3) SCC 54 has held that to

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punish a person for criminal conspiracy under Section 120-B of

IPC, it is necessary to establish that there was an agreement

between the parties for doing an unlawful Act. Therefore, it is

imperative to see whether there had been any such agreement

between the Appellant and co-accused to murder Aladi Aruna,

which could be established by producing reliable evidence.

22.To this effect, reference was made to meetings allegedly held

between the appellant and two of the co-accused, namely, A1 and

deceased accused Benny. While the first meeting between the

said persons was purported to be held on 14.9.2004, the second

one is claimed to have been held on 24.12.2004. However, we

find that there is little evidence to prove the presence of the

appellant in both these meetings. The High Court has rightly

noted that the prosecution could not make its case concerning

the meeting on 14.9.2004 due to PW1 and PW2 turning hostile.

As has been held by this Court in Bhagwan Singh v. State of

Haryana (1976) 1 SCC 389 and other subsequent cases, while

the evidence of a hostile witness would not be completely effaced,

the same requires corroboration and strict scrutiny. In this case,

11

however, the prosecution has not been able to adduce any

material evidence that may corroborate the statements of PW1

and PW2. Hence, the same is not admissible in this case.

23.The second date of meeting that the prosecution had put

forward for the formulation of a conspiracy was 24.12.2004. On

this date, A1 and deceased accused Benny said to have met the

appellant to plot the murder of Aladi Aruna. In this regard, the

statements of PWs 4 and 5 were recorded wherein they testified

to hearing a conversation between the said persons in the

appellant’s chamber regarding the commission of the crime.

However, since both witnesses have subsequently turned hostile,

their statements do not inspire confidence and hence this story is

not substantiated.

24.On the other hand, the High Court has relied on the evidence

provided by PW 3, Thenraj, who has testified to have seen both

A1 and Benny drive into the college premises of the appellant. As

the High Court recounted in the following words:-

“82....PW3 has stated that on 24.12.2004, he and his

friend Karuppasamy were proceeding to the

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Poolangulam village and at about 11.00 A.M. when

they were nearing S.A. Raja’s college, they felt thirsty

and they stopped the vehicle in front of weighing

bridge…and were taking tender coconut. At that time,

PW3 saw Accused No. 1- Veldurai and another

person [deceased accused-Benny] came in a

motorcycle from east to west and both entered into

the Engineering college of S.A. Raja and returned

from the college some 15 minutes thereafter.”

At the time, PW3 could not identify the pillion rider but later

identified him as the deceased accused Benny after being shown

his photograph.

25.Whereas the High Court noted this statement as a vital

piece of evidence affirming the existence of a conspiracy between

the appellant and the co-accused, we are compelled to disagree.

In relying upon the statement of PW3, the High Court has

glossed over important facts. From the examination of witnesses

it is not clear whether Arul Raja was at all present at this

meeting and the same could not be substantiated by any cogent

and reliable evidence. Since the purpose of the meeting and the

presence of the alleged participants cannot be confirmed, this

testimony is too weak to support any conclusion in favour of the

Respondent.

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26.The prosecution has also relied on meetings that may have

taken place on 28.12.2004 to 30.12.2004 to hold up the charge

of conspiracy. Accused Nos. 1 to 5 and deceased accused Auto

Bhaskar were said to be in Sundara Nilayam, Courtallam to work

out a plan to murder Aladi Aruna. However, the evidence as

regards these meetings make no reference to the appellant and

hence no reference is to be made to the same at this stage.

27. The High Court has strung the following pieces of

substantiated events together to include the appellant within the

ambit of the conspiracy:-

“• On 24.12.2004, Accused No. 1 and deceased

accused- Benny had gone into the college of Accused

No. 7 and returned after 15 minutes.

• Presence of Accused No. 1, Accused No. 4 and

deceased accused-Benny on the southern side of place

of occurrence on 31.12.2004.

• Accused No. 1 and deceased accused-Benny flew to

Gujarat and were apprehended together.

• Accused Benny consumed cyanide poison

immediately after the arrest and accused-Auto Baskar

consumed cyanide poison after arrest while in transit.”

14

28. We find that these events, even when taken together, cannot

prove a charge of conspiracy so far the appellant is concerned. In

State through Superintendent of Police, CBI/SIT v. Nalini &

Others, reported in (1999) 5 SCC 253, it was held that: -

“583. ……….

(1)………….Offence of criminal conspiracy is an

exception to the general law where intent alone does

not constitute crime. It is intention to commit crime and

joining hands with persons having the same intention.

Not only the intention but there has to be agreement to

carry out the object of the intention, which is an offence.

The question for consideration in a case is did all the

accused have the intention and did they agree that the

crime be committed. It would not be enough for the

offence of conspiracy when some of the accused merely

entertained a wish, howsoever horrendous it may be,

that offence be committed……………..”

In this instance, mere circumstantial evidence to prove the

involvement of the appellant is not sufficient to meet the

requirements of criminal conspiracy under Section 120-A of the

IPC. A meeting of minds to form a criminal conspiracy has to be

proved by placing substantive evidence and the Respondent has

not adduced any evidence which underlines the same. The issue

of whether A1’s statement, recorded after his arrest, may be used

15

to implicate the appellant in the said conspiracy shall be dealt

with subsequently.

29. We must now consider whether the statement made by A1

and recorded by the Executive Magistrate of Ahmedabad City in

the morning of 26.12.2005, which is proved as Ex. P22, may be

used to implicate the Appellant in this crime. The Respondent,

and the High Court in its decision, both rely on A1’s statement

made while he was in L.G Hospital, subsequent to his arrest.

This statement was recorded as A1’s dying declaration.

Therefore, the legal basis to admit the statement as a dying

declaration needs to be examined.

30.Section 32 (1) of the Evidence Act, 1872 states that a dying

declaration is a relevant fact and therefore admissible in

evidence. Section 32 (1) categorically states that a statement

made by a person as to the cause of his death, or as to any of the

circumstances of the transaction which resulted in his death is a

relevant fact and admissible in evidence in cases in which the

cause of that person’s death comes into question. It further

16

mentions that such a statement will be admissible in evidence

when the person making it is dead or cannot be found or has

become incapable of giving evidence or whose attendance cannot

be procured without an amount of delay or expense.

31.It is trite law that for a statement to be admissible in

evidence as a dying declaration, the person making the statement

should no longer be alive. If the person eventually does not die

after making the statement, then the same cannot be treated as a

dying declaration.

32.The cited authority of the High Court in regards to the

admissibility of a dying declaration, Rattan Singh v. State of

Himachal Pradesh reported in (1997) 4 SCC 161, in fact

confirms the necessary condition of death failing which this

statement will be inadmissible under the dying declaration rule.

33.Other case law also confirms this necessary condition. In

Ramprasad v. State of Maharashtra¸ reported at (1999) 5 SCC

30, this Court held:-

“13. Ext. 52 is the dying declaration made by PW 1

Ramu Somani, which was recorded by a Judicial

17

Magistrate (PW 16). Both the trial court and the High

Court counted Ext. 52 as a piece of evidence. Shri R.S.

Lambat, learned counsel contended that both the courts

have gone wrong in treating Ext. 52 as evidence

because the person who gave that statement is not

dead and hence it could not fall under Section 32 of the

Evidence Act, 1872. Counsel further contended that

even otherwise Ext. 52 could only have been used to

contradict PW 1 as provided in Section 162 of the Code

of Criminal Procedure (for short “the Code”) as it was a

statement recorded during investigation.

14. We are in full agreement with the contention of the

learned counsel that Ext. 52 cannot be used as

evidence under Section 32 of the Evidence Act though it

was recorded as a dying declaration. At the time when

PW 1 gave the statement he would have been under

expectation of death but that is not sufficient to wiggle it

into the cassette of Section 32. As long as the maker of

the statement is alive it would remain only in the realm

of a statement recorded during investigation.

15. Be that as it may, the question is whether the Court

could treat it as an item of evidence for any purpose.

Section 157 of the Evidence Act permits proof of any

former statement made by a witness relating to the

same fact before “any authority legally competent to

investigate the fact” but its use is limited to

corroboration of the testimony of such a witness.

Though a police officer is legally competent to

investigate, any statement made to him during such an

investigation cannot be used to corroborate the

testimony of a witness because of the clear interdict

contained in Section 162 of the Code. But a statement

made to a Magistrate is not affected by the prohibition

contained in the said section. A Magistrate can record

the statement of a person as provided in Section 164 of

the Code and such a statement would either be

elevated to the status of Section 32 if the maker of the

statement subsequently dies or it would remain within

the realm of what it was originally. A statement

recorded by a Magistrate under Section 164 becomes

usable to corroborate the witness as provided in Section

157 of the Evidence Act or to contradict him as provided

in Section 155 thereof.”

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34.In the present case, on 26.01.2005 at about 7:15 a.m., PW-

46 (Executive Magistrate/Deputy Tehsildar), on receiving a

written requisition from L.G. Hospital for recording the dying

declaration of A1 who was admitted to the ICU Ward of the said

hospital, went there and recorded the alleged dying declaration

which is Ex. P22. Ex. P22 cannot be said to be a dying

declaration and that is so on account of various reasons, which

may be elaborated herein.

35. The most important of them all is that A1 did not die after

making the alleged dying declaration. From the decision of this

Court in the aforementioned case, it is clear that when a person

who has made a statement perhaps in expectation of death, is

not dead, it is not a dying declaration and is not admissible

under Section 32 of the Evidence Act.

36. Furthermore, there is no reason forthcoming as to why A1

was brought to the hospital along with deceased accused Benny.

There is nothing on record to show that A1 also had consumed

poison or that he was in any manner ill or injured which

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necessitated his admission to the hospital for treatment. In this

regard, we may notice the testimony of PW-46. PW-46 has clearly

deposed that when he went to the said hospital, he saw that A1

was sitting “hale and healthy”. He further stated that he had

recorded the alleged dying declaration of A1 because in the

requisition letter it was mentioned that both A1 and deceased

Benny had consumed poison. PW-46 also stated that A1 was

under treatment and in a frightened mood. He has categorically

stated in his testimony that he did not ascertain from A1 as to

whether he had consumed poison or as to the nature of the

same. He further states in his testimony that he did not ascertain

from A1 as to what made him consume poison and whether he

had consumed it himself or if somebody had administered the

same. This is a major lapse and casts a serious doubt on the

credibility of the statement.

37. It must also be noted that despite the fact that A1 was

admitted to the ICU ward, he was discharged from the hospital

and was produced before the Magistrate, Ahmedabad at 7:30 p.m

on the same day, i.e., 26.01.2005. From this, two inferences may

20

be drawn. One is that A1 was not actually ill so as to warrant

admission to the ICU and that was done only with a view to

obtaining a statement which could subsequently be used against

him. Alternatively, the second is that A1 was actually ill and his

serious condition necessitated admission to the ICU ward. But if

his condition was so serious, then we fail to understand why he

was discharged from the hospital on the very same day. That

does not seem to us to be a reasonable course and raises serious

doubts in our mind.

38. We cannot appreciate the need for PW-46 having recorded

the dying declaration of A1 when A1 was sitting “hale and

healthy”, as deposed by PW-46 himself. No doctor treating A1

was examined as to prove and establish that A1 was seriously ill

and the line of treatment given to him in the hospital.

39. On a perusal of Ex. P-22 as a whole and Question No. 11

therein in particular it cannot be said to be a statement

admissible in evidence as a dying declaration. In response to

Q.11, A1 replied that “in Ahmedabad Vatva Dr. Maya Tawer’s

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Home Nr. Cadila Bridge dated 26.01.2005 at 1:30 in night police

caught and brought”. There is nothing in the alleged dying

declaration to show why A1 was brought to the hospital. Also, if

it were recorded as a dying declaration, it should have contained

the circumstances that necessitated A1’s admission to the

hospital. Ex. P-22 lacks that important aspect and hence it

cannot be raised to the status of a dying declaration. PW-46 has

stated in his testimony that he did not even make an attempt to

ascertain who or what was responsible for A1’s condition and

why he consumed poison. Rather it seems to us that ascertaining

the cause of his condition should have been the prime concern

for PW-46 who went to the hospital to record the dying

declaration. In this regard, it is also pertinent to note that no

doctor from L.G. Hospitals who was on duty on the said day has

been examined.

40.This Court in the case of Sharawan Bhadaji Bhirad &

Others v. State of Maharashtra reported in (2002) 10 SCC 56

held that when a statement is recorded as a dying declaration

and the victim survives, such statement need not stand the strict

22

scrutiny of a dying declaration, but may be treated as a

statement under Section 164, Cr.P.C.

41.Therefore, with the said statement inadmissible as a dying

declaration, the question that arises is: whether the statement

could be admissible either as a confession or as an extra-judicial

confession?

42.The events surrounding the confession made by A1 while in

hospital, and more significantly, in police custody, are too

ambiguous to support conviction of the appellant.

43.Section 164 Cr.P.C. provides guidelines to be followed for

taking the statement of accused as a confession. The one

essential condition is that it must be made voluntarily and not

under threat or coercion. This Court in Aloke Nath Dutta & Ors.

v. State of West Bengal reported in (2007) 12 SCC 230 held as

under: -

“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

23

said purpose the court has to satisfy itself in regard to:

(i) voluntariness of the confession; (ii) truthfulness of the

confession; (iii) corroboration.

88. This Court in Shankaria v. State of Rajasthan

stated the law thus: (SCC p. 443, para 23)

“ 23 . This confession was retracted by the

appellant when he was examined at the trial

under Section 311 CrPC on 14-6-1975. It is well

settled that a confession, if voluntarily and

truthfully made, is an efficacious proof of guilt.

Therefore, when in a capital case the prosecution

demands a conviction of the accused, primarily on

the basis of his confession recorded under Section

164 CrPC, the Court must apply a double test:

( 1 ) Whether the confession was perfectly

voluntary?

(2) If so, whether it is true and trustworthy?

Satisfaction of the first test is a sine qua non for

its admissibility in evidence. If the confession

appears to the Court to have been caused by any

inducement, threat or promise such as is

mentioned in Section 24, Evidence Act, it must be

excluded and rejected brevi manu. In such a case,

the question of proceeding further to apply the

second test, does not arise. If the first test is

satisfied, the Court must, before acting upon the

confession reach the finding that what is stated

therein is true and reliable. For judging the

reliability of such a confession, or for that matter

of any substantive piece of evidence, there is no

rigid canon of universal application. Even so, one

broad method which may be useful in most cases

for evaluating a confession may be indicated. The

Court should carefully examine the confession and

compare it with the rest of the evidence, in the

light of the surrounding circumstances and

probabilities of the case. If on such examination

and comparison, the confession appears to be a

probable catalogue of events and naturally fits in

with the rest of the evidence and the surrounding

circumstances, it may be taken to have satisfied

the second test.” ”

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44.In Babubhai Udesinh Parmar v. State of Gujarat reported

in (2006) 12 SCC 268, this Court held that compliance with

statutory provisions is mandatory which should be in letter and

spirit and not in a routine or mechanical manner.

45. As has been held by this Court in State of UP v. Singhara

Singh, reported in (1964) 4 SCR 485, a statement that does not

prescribe to the procedure laid down in Section 164 of the CrPC

is not admissible as a confessional statement. In this case, the

statement has neither been recorded by a Judicial Magistrate nor

has it fulfilled procedural requirements, including that of a

certificate to be appended by the Magistrate. Hence, the

statement is not admissible against the appellant as a confession

under Section 164.

46.Besides, in the present case, as pleaded by the appellant,

A1 gave a representation on 9.5.2005 with a request to the

Judicial Magistrate Court, Thenkasi and also Magistrate Court at

Senkottai stating that his confessional statement which

implicated the appellant was not voluntary and that he was

25

forced to give the same by the police. Therefore, there is a doubt

as to whether implication of the appellant by A1, if any, was

made voluntarily. Viewed from this angle and under any

circumstance, the said statement cannot be regarded as a

confession as envisaged under Section 164 Cr. P.C. to implicate

the appellant.

47. Therefore, the only issue that remains before us to be

decided is whether the statement made by A1 may be considered

as an extra-judicial confession. 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 & Others,

reported in (2007) 3 SCC 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 AP,

26

reported in (1974) 4 SCC 443 and State of Maharashtra v.

Kondiba Tukaram Shirke, reported in (1976) 3 SCC 775. It is

significant to observe that A1 has subsequently sought to retract

this statement upon his arrival in Tamil Nadu.

48.In Maghar Singh v. State of Punjab reported in (1975) 4

SCC 234, at page 236, while dealing with the question of extra-

judicial confession, this Court held as follows: -

“5. …………….If the Court believes the witnesses before

whom the confession is made and it is satisfied that the

confession was voluntary, then in such a case

conviction can be founded on such evidence alone as

was done in Rao Shiv Bahadur Singh v. State of V.P.

where their Lordships of the Supreme Court rested the

conviction of the accused on the extra-judicial

confession made by him before two independent

witnesses, namely, Gadkari and Perulakar. In the

instant case also, after perusing the evidence of PW 3

and PW 12 we are satisfied that they are independent

witnesses before whom both the appellant and accused

Surjit Kaur made confession of their guilt and this

therefore forms a very important link in the chain of

circumstantial evidence. In our opinion the argument

proceeds on fundamentally wrong premises that the

extra-judicial confession is tainted evidence.”

49.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

27

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.

50.This Court in State of A.P. v. S. Swarnalatha & Others

reported in (2009) 8 SCC 383 held as follows: -

“16. ……………..Extra-judicial confession as is well

known is a weak piece of evidence, although in given

situations reliance thereupon can be placed. (See State

of U.P. v. M.K. Anthony, SCC p. 517, para 15 and

State of Rajasthan v. Kashi Ram, SCC p. 262, para

14.)”

51.In Pakkirisamy v. State of T.N. reported in (1997) 8 SCC

158, at page 162, this Court held: -

“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

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surrounded by suspicious circumstances, needless to

state that its credibility becomes doubtful and

consequently it loses its importance. The same principle

has been enunciated by this Court in Balwinder Singh

v. State of Punjab. ………………….”

52.This Court in State of A.P. v. Kanda Gopaludu reported in

(2005) 13 SCC 116 held that extra-judicial confession is

admissible if it inspired confidence and made voluntarily.

53.This Court in Kavita v. State of T.N. reported in (1998) 6

SCC 108, at page 108 held as follows: -

“4. There is no doubt that convictions can be based on

extra-judicial confession but it is well settled that in the

very nature of things, it is a weak piece of evidence. It

is to be proved just like any other fact and the value

thereof depends upon the veracity of the witness to

whom it is made. It may not be necessary that the

actual words used by the accused must be given by the

witness but it is for the court to decide on the

acceptability of the evidence having regard to the

credibility of the witnesses.”

54.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

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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.

55.In the present case, the purported dying declaration was

recorded in the hospital. A1 was discharged from the hospital on

the same day that his statement was recorded. That A1 later

made a representation stating that the confession was not given

voluntarily, raises doubts as to its truthfulness. Under these

circumstances, it is to be said that the authenticity of A1’s

confession is not free from doubts. In the present case, A1 being

the co-accused, it is not proper to convict the appellant solely on

the basis of the confession of A1 – more so, when the confession

is not corroborated by any evidence. Such corroborating evidence

that may confirm the appellant’s involvement in Aladi Aruna’s

murder is totally missing in this case.

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56. Furthermore, we find that the statement made by A1 is

insufficient to implicate the appellant in the said conspiracy as

the same is hit by Section 10 of the Evidence Act. Section 10

refers to the statement of a fellow conspirator that pertains to the

common intention behind the act, and such a statement can be

used against the other conspirators. In the present case, we have

found and held that the prosecution has failed to substantiate

the allegation of conspiracy against the appellant and therefore,

he could not be under any circumstance be called a co-

conspirator so as to attract the provisions of Section 10 of the

Evidence Act. Furthermore, this Court in Mohd. Khalid v. State

of West Bengal reported in (2002) 7 SCC 334 and State of

Gujarat v. Mohd. Atik & Others reported in (1998) 4 SCC 351

has held that a post-arrest statement would not fall within the

ambit of Section 10 of the Evidence Act. Therefore, the statement

made by A1 in police custody cannot be used to implicate the

appellant in the conspiracy to murder Aladi Aruna.

57. Thus, viewed from any angle, the evidence adduced by the

prosecution against the appellant is not sufficient to justify his

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conviction either under Section 302 or Section 307 or under

Section 120-B of the Indian Penal Code.

58. In view of the aforesaid conclusions, we find no merit in the

arguments of the Respondent. These appeals are allowed and the

decision of the High Court is reversed and the appellant stands

acquitted of the charges against him purely and simply on

benefit of doubt. He shall be released forthwith from jail, if not

wanted in any other case.

........………………………. ........

J.

[Dr. Mukundakam Sharma]

.....…..…………………….. .......J.

[ C.K. Prasad]

New Delhi,

July 30, 2010.

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