Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1405 OF 2008

Sahadevan & Anr. …Appellants

Versus

State of Tamil Nadu …Respondent

J U D G M E N T

Swatanter Kumar, J .

1.The present appeal is directed against the judgment of the

High Court dated 27

th

September, 2006 vide which the High

Court affirmed the judgment of conviction and order of sentence

dated 31

st

December, 2003 passed by the Trial Court.

2.The prosecution case is that Smt. Kamalal, PW-2 was

married to one Yoganandan @ Loganathan, the deceased. The

accused No.1, Chandran is the brother of Kamalal (PW2).

accused No.2, Sahadevan, and accused No. 3, Arul Murugan,

Page 2 were the friends of accused No.1. PW2 was being ill-treated by

Loganathan, her husband. Being her brother, accused No.1

thought that if he murdered Loganathan, life of his sister would

be peaceful. Thus, accused No.1 and his friends (the other two

accused) entered into a criminal conspiracy to commit murder of

Loganathan. According to PW-5, Karuppuswamy, when he was

talking to one Chinnaswamy at a three star hotel near the

Neruparichal bus stand at about 10 p.m. on 9

th

July, 2002, he

saw Sahadevan driving a TVS moped in

Povmmanayakkampallayam road, while two other persons were

sitting as pillion riders. The vehicle was proceeding towards

west. After a while, one of them came back and again went in the

same direction on the same vehicle. PW-4, then saw the

deceased, Yoganandan and accused No.1 going in the same

direction on the TVS moped at about 2 p.m. Again after some

time, accused No.2 alone came back on the moped. On 10

th

July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a dead

body in the Pommanayakkanpallam Road, whereupon he went to

PW-1, the Administrative Officer and informed him of that fact.

PW-1, upon receiving this information, went to the spot and saw

the dead body. He then went to the Perumanallur Police Station

2

Page 3 and made a complaint, Ext.P-1, to the Sub-Inspector of Police,

Ganesan, PW-8.

3.Upon receipt of the complaint, the police registered a case

being Crime No.150 of 2002 for an offence under Section 302 of

the Indian Penal Code, 1860 (for short “the IPC”) against

unknown accused. The Investigating Officer, PW-9, proceeded to

the scene of occurrence. There he prepared observation

Mahazar, Ext.P-2 and took photographs of the dead body.

4.Between 3 p.m. to 6 p.m., he conducted inquest over the

dead body in the presence of Panchayatdars and witnesses and

prepared the inquest report, Ext.P-13. The Senior Civil Assistant

Surgeon, PW7, attached to the Thirupur Government Hospital,

after receiving the requisite information and the body, performed

autopsy on the body of the deceased. She noted the injuries on

the body of the deceased and issued the post-mortem certificate,

Ext. P-10, expressing the opinion that the deceased would have

died 27 to 28 hours prior to autopsy.

5.It is further the case of the prosecution that on 14

th

July,

2002, when PW-6, Muthurathinam, President of

Kanakampalayam Panchayat was in his office along with one

Shanmugasundaram, all the above-named three accused came to

3

Page 4 his office and told him that deceased Loganathan was the

brother-in-law of accused No.1 and on account of family problem

between accused No.1 and the deceased, they murdered

Loganathan by strangulating him and after putting kerosene on

him, set the body of the deceased afire. The statements made by

the accused were reduced to writing by PW-6 and after obtaining

their signatures and putting his own signature thereon he

handed over the report, Ext. P-4, to the Police Station along with

the custody of the accused whereupon PW-9, the Investigating

Officer arrested all the accused persons.

6.PW9, on the basis of the confessional statements, Ext.P-5 to

P-7, recovered MO-6 (TVS moped TN 38 7344), MO-7 (bottle

smelling of kerosene) and MO-8 (matchbox). PW-9 then sent the

MOs for forensic examination along with Ext. P-15, the

requisition therefor. Subsequently, PW-9 was relieved of his

duties and PW-10 completed the investigation of the case and

filed the chargesheet against all the three accused under Section

120B and Section 302 IPC. All the accused were tried in

accordance with law.

7.We may notice here that in their statement under Section

313 Cr.PC, the accused persons denied the incident, including

4

Page 5 the alleged extra-judicial confession made by them and also

stated that they were falsely implicated in the case. However, all

the three accused chose not to lead any defence. Finally, the

prosecution examined as many as 10 witnesses and produced on

record the documentary evidence. The trial Court vide its

judgment dated 31

st

December, 2003 acquitted all the accused

for an offence under Section 120B IPC, however, it convicted all

the three accused under Section 302 IPC and awarded them

sentence of imprisonment for life and fine of Rs. 5,000/-, in

default thereof, to undergo rigorous imprisonment for six

months.

8.Aggrieved from the judgment of the trial court, the accused

preferred an appeal before the High Court which came to be

dismissed vide order dated 27

th

September, 2006 resulting in the

filing of the present appeal.

9.Accused No.2, Sahadevan and accused No.3, Arul Murugan

have preferred the present appeal. Accused No.1, Chandran has

not filed any appeal.

10.The learned counsel appearing for these two appellants has

advanced the following arguments while impugning the judgment

under appeal :-

5

Page 6 (i) The case of the prosecution is solely based upon the extra-

judicial confession, which confession is neither reliable nor

has been recorded in accordance with law. This extra-judicial

confession cannot form the basis of conviction of the

appellants since it has no corroboration and when examined in

light of the settled principles of law, it is inconsequential, thus,

the accused are entitled to the benefit of doubt.

(ii)In the present case, there is neither any eye-witness nor the

prosecution has proved the complete chain of circumstances.

The courts have erred in applying the theory of last seen

together to return the finding of conviction against the

accused. There being no direct evidence of involvement of the

appellants in the commission of the crime, the theory of last

seen together could not be of any assistance to the case of the

prosecution.

(iii)The recoveries alleged to have been made in furtherance to

the confessional statements of the accused are inadmissible in

evidence and, in any case, the objects recovered have no link

with the commission of the crime and as such, it would be

impermissible in law to use these recoveries against the

accused for sustaining their conviction.

6

Page 7 (iv)The courts have failed to appreciate the medical and other

evidence placed on record in its correct perspective. There are

serious contradictions in the medical and ocular evidence, as

regards the time of the death of the deceased. Once, the time

of death of deceased is not established, the whole story of the

prosecution falls to the ground.

(v)According to the learned counsel for the appellants, an extra-

judicial confession, besides being inadmissible, is also a very

weak piece of evidence and in a case of circumstantial

evidence like the present, one cannot form a valid basis for

returning the finding of guilt against the accused.

11.To the contra, the learned counsel appearing for the State

argued that the extra-judicial confession in the present case is

admissible as it is duly corroborated by other prosecution

evidence, and thus, the courts are fully justified in convicting the

accused. It is also contended that the present case is of

circumstantial evidence and the prosecution has succeeded in

establishing every circumstance of the chain of events that would

fully support the view that the accused is guilty of the offence.

The court while dealing with the judgment under appeal, upon

7

Page 8 proper appreciation of evidence, thus, has come to the right

conclusion.

12.There is no doubt that in the present case, there is no eye-

witness. It is a case based upon circumstantial evidence. In

case of circumstantial evidence, the onus lies upon the

prosecution to prove the complete chain of events which shall

undoubtedly point towards the guilt of the accused.

Furthermore, in case of circumstantial evidence, where the

prosecution relies upon an extra-judicial confession, the court

has to examine the same with a greater degree of care and

caution. It is a settled principle of criminal jurisprudence that

extra-judicial confession is a weak piece of evidence. Wherever

the Court, upon due appreciation of the entire prosecution

evidence, intends to base a conviction on an extra-judicial

confession, it must ensure that the same inspires confidence and

is corroborated by other prosecution evidence. If, however, the

extra-judicial confession suffers from material discrepancies or

inherent improbabilities and does not appear to be cogent as per

the prosecution version, it may be difficult for the court to base a

conviction on such a confession. In such circumstances, the

8

Page 9 court would be fully justified in ruling such evidence out of

consideration.

13.Now, we may examine some judgments of this Court dealing

with this aspect.

14.In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC

259], this Court stated the principle that an extra-judicial

confession, by its very nature is rather a weak type of evidence

and requires appreciation with a great deal of care and caution.

Where an extrajudicial confession is surrounded by suspicious

circumstances, its credibility becomes doubtful and it loses its

importance.

15.In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court

held that 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.

16.Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the

Court stated the dictum that there is no doubt that conviction

can be based on extrajudicial confession, but it is well settled

that in the very nature of things, it is a weak piece of evidence.

9

Page 10 It is to be proved just like any other fact and the value thereof

depends upon veracity of the witnesses to whom it is made.

17.While explaining the dimensions of the principles governing

the admissibility and evidentiary value of an extra-judicial

confession, this Court in the case of State of Rajasthan v. Raja

Ram [(2003) 8 SCC 180] stated the principle that an extra-

judicial confession, if voluntary and true and made in a fit state

of mind, can be relied upon by the court. The confession will

have to be proved like any other fact. The value of evidence as to

confession, like any other evidence, depends upon the veracity of

the witness to whom it has been made. The Court, further

expressed the view that such a confession can be relied upon and

conviction can be founded thereon if the evidence about the

confession comes from the mouth of witnesses who appear to be

unbiased, not even remotely inimical to the accused and in

respect of whom nothing is brought out which may tend to

indicate that he may have a motive of attributing an untruthful

statement to the accused.

18.In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12

SCC 230], the Court, while holding the placing of reliance on

10

Page 11 extra-judicial confession by the lower courts in absence of other

corroborating material, as unjustified, observed:

“87. Confession ordinarily is admissible in

evidence. It is a relevant fact. It can be acted

upon. Confession may under certain

circumstances and subject to law laid down

by the superior judiciary from time to time

form the basis for conviction. It is, however,

trite that for the said purpose the court has

to satisfy itself in regard to: (i) voluntariness

of the confession; (ii) truthfulness of the

confession; (iii) corroboration.

XXX XXX XXX

89. A detailed confession which would

otherwise be within the special knowledge of

the accused may itself be not sufficient to

raise a presumption that confession is a

truthful one. Main features of a confession

are required to be verified. If it is not done,

no conviction can be based only on the sole

basis thereof.”

19.Accepting the admissibility of the extra-judicial confession,

the Court in the case of Sansar Chand v. State of Rajasthan

[(2010) 10 SCC 604] held that :-

“29. There is no absolute rule that an extra-

judicial confession can never be the basis of

a conviction, although ordinarily an extra-

judicial confession should be corroborated

by some other material. [Vide Thimma and

Thimma Raju v. State of Mysore, Mulk Raj

v. State of U.P., Sivakumar v. State (SCC

11

Page 12 paras 40 and 41 : AIR paras 41 & 42), Shiva

Karam Payaswami Tewari v. State of

Maharashtra and Mohd. Azad v. State of

W.B.]

30. In the present case, the extra-judicial

confession by Balwan has been referred to

in the judgments of the learned Magistrate

and the Special Judge, and it has been

corroborated by the other material on

record. We are satisfied that the confession

was voluntary and was not the result of

inducement, threat or promise as

contemplated by Section 24 of the Evidence

Act, 1872.”

20.Dealing with the situation of retraction from the extra-

judicial confession made by an accused, the Court in the case of

Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC

740], held as under :

“It appears therefore, that the appellant has

retracted his confession. When an extra-

judicial confession is retracted by an

accused, there is no inflexible rule that the

court must invariably accept the retraction.

But at the same time it is unsafe for the

court to rely on the retracted confession,

unless, the court on a consideration of the

entire evidence comes to a definite

conclusion that the retracted confession is

true.”

21.Extra-judicial confession must be established to be true and

made voluntarily and in a fit state of mind. The words of the

12

Page 13 witnesses must be clear, unambiguous and should clearly convey

that the accused is the perpetrator of the crime. The extra-

judicial confession can be accepted and can be the basis of

conviction, if it passes the test of credibility. The extra-judicial

confession should inspire confidence and the court should find

out whether there are other cogent circumstances on record to

support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754]

and Pancho v. State of Haryana [(2011) 10 SCC 165].

22.Upon a proper analysis of the above-referred judgments of

this Court, it will be appropriate to state the principles which

would make an extra-judicial confession an admissible piece of

evidence capable of forming the basis of conviction of an accused.

These precepts would guide the judicial mind while dealing with

the veracity of cases where the prosecution heavily relies upon an

extra-judicial confession alleged to have been made by the

accused.

The Principles

(i)The extra-judicial confession is a weak evidence by itself.

It has to be examined by the court with greater care and

caution.

13

Page 14 (ii)It should be made voluntarily and should be truthful.

(iii)It should inspire confidence.

(iv)An extra-judicial confession attains greater credibility

and evidentiary value, if it is supported by a chain of

cogent circumstances and is further corroborated by

other prosecution evidence.

(v)For an extra-judicial confession to be the basis of

conviction, it should not suffer from any material

discrepancies and inherent improbabilities.

(vi)Such statement essentially has to be proved like any

other fact and in accordance with law.

23.Having stated the principles which may be kept in mind by

the court while examining the acceptability and evidentiary value

of the extra-judicial confession, we may now refer to the extra-

judicial confession, Ext. P-4, in the case before us. This extra-

judicial confession is alleged to have been made by all the three

accused to one Muthurathinam, PW-6. The said Ext. P-4 reads

as under:-

“I am the president of Kanakampalayam

today the 14.7.2002 at 9.30 in the morning,

when I was at my office along with loclite

14

Page 15 Shanmugasundaram, a person named

Chandran aged 36 son of Muthu and resident

of Navakarai, Pooluvapatti along with

Sahadevan aged 27 s/o Pannerselvam having

a furniture by name Sri Priya agencies at

Boyampalayam Sri Nagar and one Arul

Murugan aged 23 s/o Krishnan, belonging to

Dindugal and going to printing work by

staying at pandian nagar came to my office

saying that he along with his friends

Sahadevan and Arulmurugan, on 08-07-02

his sisters husband Yoganathan @

Logananthan who was without going to work

and nor looking after the family and was

loitering hereunder an no way to look after his

sister Kamalal and her children and more

tortures from her husband and confessed to

her that her husband without going any work,

he is simply loitering hereunder and tried to

him to separate her from her husband.

Hence elimination is better than separation

and said his sisters life would be, peaceful, he

along with his friends Sahadevan and

Arulmurugan executed a friendly call to him

and told him that they would promised him a

job at Tirupur. After 10 p.m. in the night,

when there was no traunt on the Neruperchial

Bommanaichenpalayam mud road Sahadevan

in his moped with Loganathan sit and also

made Arul Murugan to sit along with and

asked to halt at certain place and again

Sahadevan came in moped and he along with

kerosene and match box and went there and

parked the moped and were all 4 of them

talking enticing Loganathan with getting him

a job at Tirupur he with the towel which was

kept ready put around Loganathan’s neck and

he strangled by holding one end of the towel

and Arulmurugan strangling by the other end

of the towel. Mean while Sahadevan bought

how Loganathan’s face and hand and started

face and since due to strangulation

15

Page 16 Loganathan fainted and fell into the east side

of the ditch and suddenly and Chandran took

kerosene and matchbox from moped cover

which was kept ready, in order to avoid

identity burnt him and killed him and after

that they all 3 took the moped and they went

to Sahadevan house and parked the vehicle

and the same night they went out of station

and a return to Tirupur only yesterday. They

came to know that the police are after then

they came to my house today and told me

what happened Shanmugasundram recorded

the above averments of Chandran after that

bringing all 3 to you and present them before

you.”

24.As per the case of the prosecution, the deceased was

murdered on 9

th

– 10

th

July, 2002. The body of the deceased was

taken into custody by the police on 10

th

July, 2002 itself. The

accused persons were residents of the same village and there is

nothing on record to show that the Police made any serious

attempt to search and arrest them. The Investigating Officers,

PW-9 and PW-10, have not stated in their statements that the

accused persons were absconding. Four days later, on 14

th

July,

2002, the accused persons are alleged to have gone to the office

of PW-6 to make the confession of having murdered the brother-

in-law of accused No.1. Ext. P-4 is addressed to the police

inspector. If the accused were to make such a statement to the

police itself, then what was the need for them to first go to PW-6.

16

Page 17 However, an explanation is advanced on behalf of the State that

the accused only signed the statement and it was PW-6 who then

handed over Ext. P-4 to the police, along with the custody of the

accused persons.

25.Further, Ext. P-4 is stated to have been made by the

accused persons to PW-6, in the presence of

Shanmugasundaram. The said person, for reasons best known

to the prosecution, has not been examined by the prosecution to

prove the recording of Ext. P-4 and to provide greater credence to

this document.

26.Moreover, in their statement under Section 313 CrPC, the

accused have denied the very execution of Ext. P-4. In order to

examine the veracity of this document, the court essentially has

to find out the correctness and corroboration of the facts stated

in Ext. P-4 by other prosecution evidence. In Ext. P-4, it is

stated that the deceased ill-treated his wife, PW-2, Kamalal and

that was the motive and, in fact, essentially the cause for the

accused to murder the deceased. The whole emphasis is upon

the bitter relationship between the husband and wife. The very

basis of Ext. P-4 falls to the ground when one peruses the

statement of Kamalal, PW-2. In her statement, she has stated

17

Page 18 that her husband was employed in a rolling mill and that there

was no dispute between them. Further, she has categorically

stated that she had never stated anything with regard to dispute

between her husband and accused No.1 to the police and that

there was no property dispute amongst them. Upon this, this

witness was declared hostile by the prosecution with the leave of

the court. Even in her cross-examination, nothing could be

brought out to establish the fact of alleged cruelties inflicted by

the deceased upon her and there being any dispute between

them.

27.An attempt has been made on behalf of the prosecution to

support its case by the statements of PW-4 and PW-5. PW-4

stated that he had seen Loganathan, who used to live opposite

his house, going on a moped along with his wife’s brother

Chandran at about 2 O’clock in the afternoon. After knowing

that there was a corpse lying at Nereuperichel, he went and saw

the dead body. It was that of Loganathan.

28.PW5 also deposed that on 9

th

July, 2002, at about 10.00

p.m., he had seen three persons going in a moped towards

Bommanaickanpalayam road. After sometime, only one person

returned on the moped and again went towards west. Thereafter,

18

Page 19 those three persons returned. He stated that he could not

identify those three persons, if he saw them. Out of the three, he

knew only one person who drove the moped and that was

accused No.2, Sahadevan. Next day, upon hearing the news that

there was a corpse lying, he went and saw it. Since the face of

the corpse was burnt, he could not identify him.

29.The statement of these two witnesses is at variance with

Exhibit P4 and hardly finds corroboration from other prosecution

evidence and also suffers from discrepancies. Thus, the contents

of Exhibit P4 are belied by the prosecution evidences itself and,

therefore, it is not safe for the Court to rely upon such extra-

judicial confession. The various factors mentioned above bring

out serious deficiencies in the veracity, credence and evidentiary

value of Exhibit P4. For the afore-recorded reasoning, we must

disturb the finding of guilt recorded by the Trial Court while

substantially relying upon Exhibit P4 as, in our opinion, Exhibit

P4 has to be ruled out from the zone of consideration, which we

hereby do.

30.The courts below, the Trial Court in particular, have laid

some emphasis on the theory of last seen, while finding the

accused guilty of the offence. As far as PW5 is concerned, he

19

Page 20 says that he only saw three persons going on the moped and he

could not identify these persons. PW4 stated that he had seen

the deceased going on a moped with Chandran at about 2.00

o’clock in the afternoon. The time lag between the time at which

this witness saw the accused and the deceased together and

when the body of the deceased was found on the next day is

considerably long. According to PW4, he could identify

Loganathan while, according to PW5, the face of the deceased

was burnt and, therefore, he could not identify him. Moreover,

according to the doctor, PW7, the deceased had died about 27 to

28 hours before the autopsy. The autopsy, was admittedly,

performed upon the deceased on 10

th

of July, at about 2 o’clock.

That implies that the deceased would have died sometime during

the morning of 9

th

July, while according to PW4, he had seen the

deceased along with Chandran after 2 p.m. on 9

th

July, 2002.

31.With the development of law, the theory of last seen has

become a definite tool in the hands of the prosecution to

establish the guilt of the accused. This concept is also accepted

in various judgments of this Court. The Court has taken the

consistent view that where the only circumstantial evidence

taken resort to by the prosecution is that the accused and

20

Page 21 deceased were last seen together, it may raise suspicion but it is

not independently sufficient to lead to a finding of guilt. In Arjun

Marik v. State of Bihar [1994 Supp.(2) SCC 372], this Court took

the view that the where the appellant was alleged to have gone to

the house of one Sitaram in the evening of 19

th

July, 1985 and

had stayed in the night at the house of deceased Sitaram, the

evidence was very shaky and inconclusive. Even if it was

accepted that they were there, it would, at best, amount to be the

evidence of the appellants having been last seen together with the

deceased. The Court further observed that it is settled law that

the only circumstance of last seen will not complete the chain of

circumstances to record a finding that it is consistent only with

the hypothesis of guilt of the accused and, therefore, no

conviction, on that basis alone, can be founded.

32.Even in the case of State of Karnataka v. M.V. Mahesh

[(2003) 3 SCC 353], this Court held that merely being last seen

together is not enough. What has to be established in a case of

this nature is definite evidence to indicate that the deceased had

been done to death of which the respondent is or must be aware

as also proximate to the time of being last seen together. No

such clinching evidence is put forth. It is no doubt true that

21

Page 22 even in the absence corpus delicti it is possible to establish in an

appropriate case commission of murder on appropriate material

being made available to the Court.

33.In the case of State of U.P. v. Satish [(2005) 3SCC 114], this

Court had stated that the principle of last seen comes into play

where the time gap between the point of time when the accused

and the deceased were last seen alive and when the deceased is

found dead is so small that possibility of any person other than

the accused being the author of the crime becomes impossible.

34.Undoubtedly, the last seen theory is an important event in

the chain of circumstances that would completely establish

and/or could point to the guilt of the accused with some

certainty. But this theory should be applied while taking into

consideration the case of the prosecution in its entirety and

keeping in mind the circumstances that precede and follow the

point of being so last seen.

35.The statement of PW5 does not indicate the time as to when

he had seen the deceased and with which of the accused. He

expressed inability to even identify them. PW4 though claims to

have seen them but has given a time which itself is doubtful.

22

Page 23 Even this cannot be stated with certainty that at that particular

time the deceased was alive or dead.

36.In light of the abovementioned contradictions and the

uncertainty of evidence, we are unable to sustain the view taken

by the High Court that on the theory of last seen, the accused

can be convicted. This fact is uncorroborated and suffers from

apparent contradictions and discrepancies as well.

RECOVERY

37.PW9, the Investigating Officer, after arresting accused No.2,

Sahadevan, recorded his statement. The accused stated that he

had hidden kerosene bottle, a match box and TVS Moped bearing

No.50 TN 38 7344 and could get them recovered. He also stated

that Chandran had taken him on that moped. In furtherance to

this statement of this accused and in presence of the witnesses

at about 2.45 hours, the Investigating Officer recovered and

seized MO6, the TVS moped, MO7, bottle with kerosene odour

and MO8, match box. In his entire deposition, this witness had

not stated that these were the articles which were used by the

accused persons in the commission of the crime. It was expected

of the prosecution to establish a connection between the articles

recovered and the incident or the crime, as alleged to have been

23

Page 24 committed. According to the prosecution, kerosene oil was

poured over the deceased and he was set on fire. No kerosene

was found on the body of the deceased or on the belongings, i.e.,

clothing, chappal etc. of the deceased. The witness to the

confession statement, Shanmugasundram, was not examined.

PW6 admitted before the Court that he did not see the house of

the accused, Sahadevan. In the case of State of Rajasthan v.

Bhup Singh [(1997) 10 SCC 675], this Court observed the

following as the conditions prescribed in Section 27 of the Indian

Evidence Act, 1872 for unwrapping the cover of ban against

admissibility of statement of accused to police (1) a fact should

have been discovered in consequence of the information received

from the accused; (2) he should have been accused of an offence;

(3) he should have been in the custody of a police officer when he

supplied the information; (4) the fact so discovered should have

been deposed to by the witness. The Court observed that if these

conditions are satisfied, that part of the information given by the

accused which led to such recovery gets denuded of the wrapper

of prohibition and it becomes admissible in evidence.

38.In the present case, the recoveries have been effected upon

the statement of the accused under Section 27 of the Evidence

24

Page 25 Act. These recoveries, in our view, were made in furtherance to

the statement of the accused who were in police custody and in

presence of independent witnesses. It may be that one of them

had not been examined but that, by itself, shall not vitiate the

recovery or make the articles inadmissible in evidence. The

aspect which the Court has to consider in the present case is

whether these recoveries have been made in accordance with law

and whether they are admissible in evidence or not and most

importantly the link with and effect of the same vis-a-vis the

commission of the crime. According to the post mortem report

Ext.P-10 as well as the forensic report Ext.P-22, kerosene or its

smell was neither found on the body nor the belongings of the

deceased and, therefore, it creates a little doubt as to whether the

recovered items were at all and actually used in the commission

of crime. However, as far as TVS moped, MO-6 is concerned,

there is sufficient evidence to show that it was used by the

accused but the other contradictions and discrepancies noted

above overshadow this evidence and give advantage to the

accused.

39.Now, we would deal with the contention of the appellant

that the prosecution has not been able to establish even the time

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Page 26 of death of the deceased. According to the prosecution, the

deceased had been murdered on 9

th

July, 2002 at about 11 p.m.

but according to the post mortem report Exhibit P10, the

deceased was murdered on 10

th

July, 2002, i.e. between 10 and

11 a.m. The post mortem report was recorded on 11

th

July, 2002

at 2.00 p.m. stating that the deceased was murdered before 27 to

28 hours. Absence of kerosene oil on the body of the deceased

and articles taken into custody from the body of the deceased,

the contradictions in the statement of the witnesses, the fact

that PW2 has not supported the case of the prosecution and PW5

not being able to even identify the accused, lend support to the

arguments raised on behalf of the accused and create a dent in

the story of the prosecution. Not on any single ground, as

discussed above, but in view of the cumulative effect of the above

discussion on all the aspects, we are unable to sustain the

judgment of the High Court. In our opinion, the prosecution has

failed to prove its case beyond reasonable doubt.

40.In view of our above discussion, the last question for

consideration of the Court is as to what order, if any, is required

to be made against the non-appealing accused, i.e., accused

No.1, Chandran. From the prosecution evidence, it is clear that

26

Page 27 some role had been specifically assigned to the accused

Chandran. He is the brother-in-law of the deceased and is stated

to have been last seen taking the deceased on the moped

whereafter the deceased never returned. In normal

circumstances, the obvious result would be to leave the non-

appealing accused to undergo the punishment awarded to him in

accordance with law. But, where the Court finds that the entire

case of the prosecution suffers from material contradictions, the

most crucial evidence is not reliable, there are definite and

material flaws in the case of the prosecution and the Police has

failed to discharge its duties at different steps, in that event, it

will be difficult for this Court to leave the non-appealing accused

to his fate. Under the Indian criminal jurisprudence, an accused

is presumed to be innocent until proven guilty and his liberty can

be curtailed by putting him under imprisonment by due process

of law only. If the entire case of the prosecution has been found

to be unreliable and the prosecution, as a whole, has not been

able to prove its case beyond reasonable doubt, then the benefit

should accrue to all the accused persons and not merely to the

accused who have preferred an appeal against the judgment of

conviction. In the case of Raja Ram v. State of Madhya Pradesh

27

Page 28 [(1994) 2 SCC 568], this Court extended the benefit of conversion

of sentence to all the accused, from that under Section 302 IPC

to one under Section 304 IPC, including the non-appealing

accused. The Court held that in its opinion, the case of the non-

appealing accused was not really distinguisbable from other

accused persons and it was appropriate that benefit of the

judgment should also be extended to the non-appealing accused,

Ram Sahai, in that case. Again, in the case of Bijoy Singh v.

State of Bihar [(2002) 9 SCC 147], this Court clearly stated the

principle that it has set up a judicial precedent that where on

evaluation of the case, the Court reaches the conclusion that no

conviction of any accused is possible the benefit of that decision

must be extended to the co-accused, similarly situated, though

he has not challenged the order by way of an appeal. In the case

of Pawan Kumar v. State of Haryana [(2003) 11 SCC 241], while

referring to the myth of the salutary powers exercisable by the

Court under Article 142 of the Constitution for doing complete

justice to the parties, the Court opined that powers under Article

136 of the Constitution can be exercised by it even suo motu and

that the right to personal liberty guaranteed to the citizens, as

enshrined under Article 21 of the Constitution, would be a factor

28

Page 29 which can be considered by the Court in granting such reliefs.

The Court held as under :

“17. Apart from the salutary powers

exercisable by this Court under Article 142 of

the Constitution for doing complete justice to

the parties, the powers under Article 136 of

the Constitution can be exercised by it in

favour of a party even suo motu when the

Court is satisfied that compelling grounds for

its exercise exist but it should be used very

sparingly with caution and circumspection

inasmuch as only the rarest of rare cases. One

of such grounds may be, as it exists like in the

present case, where this Court while

considering appeal of one of the accused

comes to the conclusion that conviction of

appealing as well as non-appealing accused

both was unwarranted. Upon the aforesaid

conclusion arrived at by the Apex Court of the

land, further detention of the non-appealing

accused, by virtue of the judgment rendered

by the High Court upholding his conviction,

being without any authority of law, infringes

upon the right to personal liberty guaranteed

to the citizen as enshrined under Article 21 of

the Constitution. In our view, in cases akin to

the present one, where there is either a

flagrant violation of mandatory provision of

any statute or any provision of the

Constitution, it is not that this Court has a

discretion to exercise its suo motu power but a

duty is enjoined upon it to exercise the same

by setting right the illegality in the judgment of

the High Court as it is well settled that

illegality should not be allowed to be

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Page 30 perpetuated and failure by this Court to

interfere with the same would amount to

allowing the illegality to be perpetuated. In

view of the foregoing discussion, we are of the

opinion that accused Balwinder Singh alias

Binder is also entitled to be extended the same

benefit which we are granting in favour of the

appellant.”

Similar view has also been expressed by this Court in the

cases of Madhu v. State of Kerala [(2012) 2 SCC 399] and

Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC 698].

41.It is very difficult to set any universal principle which could

be applied to all cases irrespective of the facts, circumstances

and the findings returned by the Court of competent jurisdiction.

It will always depend upon the facts and circumstances of a given

case. Where the Court finds that the prosecution evidence

suffers from serious contradictions, is unreliable, is ex facie

neither cogent nor true and the prosecution has failed to

discharge the established onus of proving the guilt of the accused

beyond reasonable doubt, the Court will be well within its

jurisdiction to return the finding of acquittal and even suo moto

extend the benefit to a non-appealing accused as well, more so,

where the Court even disbelieves the very occurrence of the crime

30

Page 31 itself. Of course, the role attributed to each of the accused and

other attendant circumstances would be relevant considerations

for the Court to apply its discretion judiciously. There can be

varied reasons for a non-appealing accused in not approaching

the appellate Court. If, for compelling and inevitable reasons,

like lack of finances, absence of any person to pursue his remedy

and lack of proper assistance in the jail, an accused is unable to

file appeal, then it would amount to denial of access to justice to

such accused. The concept of fair trial would take within its

ambit the right to be heard by the appellate Court. It is hardly

possible to believe that an accused would, out of choice, give up

his right to appeal, especially in a crime where a sentence of

imprisonment for life is prescribed and awarded. Fairness in the

administration of justice system and access to justice would be

the relevant considerations for this Court to examine whether a

non-appealing accused could or could not be extended the

benefit of the judgment of acquittal. The access to justice is an

essential feature of administration of justice. This is applicable

with enhanced rigour to the criminal jurisprudence. Where the

court disbelieves the entire incident of the occurrence or where

the role of the accused who has not appealed is identical to that

31

Page 32 of the other appealing accused or where the ends of justice

demand, the Court would not hesitate and, in fact, is duty

bound, to dispense justice in accordance with law. The powers

of this Court, in terms of Articles 136 and 142 on the one hand

and the rights of an accused under Article 21 of the Constitution

on the other, are wide enough to deliver complete justice to the

parties. These powers are incapable of being curtailed by such

technical aspects which would not help in attainment of justice

in the opinion of the Court. In light of the above principles, this

Court is required to consider the effect of these judgments on the

case of the non-appealing accused in the present case.

42.In the present case, accused No.1, Chandran had been

attributed the same role as the other two accused. All the

accused were stated to have murdered the deceased and burnt

his body. It was a case of circumstantial evidence where not only

has the prosecution failed to prove all the facts and events to

complete the chain of events pointing only towards the guilt of

the accused but there are also definite discrepancies in the case

of the prosecution, contradictions between the statements of the

material witnesses and the most important piece of prosecution

evidence, the extra-judicial confession, Exhibit P4, is found

32

Page 33 entirely unreliable, not worthy of credence as well as the facts

recorded in Exhibit P4 stand disproved by another prosecution

witness herself, i.e., PW-2, who, in fact, has lost her husband.

43.For the reasons afore-recorded, while accepting the appeal

of the accused-appellants, we also direct that the benefit of this

judgment shall also stand extended to accused No.1, Chandran,

who is in jail. All the accused are acquitted of the charge under

Section 302 IPC. They be set at liberty forthwith.

…………………………… .,J.

[A.K. Patnaik]

…………………………… .,J.

[Swatanter Kumar]

New Delhi;

May 8, 2012

33