Manish Kumar Nigam, J
1. This appeal has been filed against the judgment and order of conviction dated 01.08.2015 passed by learned Additional District and Sessions Judge, Court No. 5, Lakhimpur Khiri in S. T. No. 761 of 2010, whereby the learned Additional District & Sessions Judge, Court No. 5, Lakhimpur Khiri (hereinafter referred to as the ‘trial court’) has convicted the appellant Nangu @ Rambabu for the offence punishable under Section 302, 377/511 and under Section 201 I.P.C.
2. Factual matrix of the case is that the informant Mahesh submitted a written complaint dated 01.11.2009 to the inspector In-charge of Police Station Gola, District Lakhimpur Khiri (Ex. Ka-13) to the effect that the son of the informant namely Ankur aged about 10 years on 31.10.2009, at about 7:00PM, had gone to the nearby shop for purchasing toffee but did not return in the night. The complainant along with his family members searched for his son Ankur and at about 09:00 AM, in the morning, the clothes of his son Ankur (Pant, underwear & vest) were found near the pond situated towards north of the village and after making search body of his son Ankur was found in the pond. It was requested that necessary action be taken.
3. After recovery of the body, post mortem was conducted on 02.11.2009 (Ex. Ka-3A), thereafter a G.D. entry (Ex. Ka-12) was made with Case Crime No. 1341 of 2009 under Section 302 & 201 I.P.C.
4. Another written complaint (Ex. Ka-1) was submitted by the informant Mahesh on 18.11.2009 to the In-charge of Police Station Gola, District Lakhimpur Khiri to the effect that on 18.11.2009, accused Nangu @ Ram Babu came to cousin brother of the informant namely Rajesh Kumar and said that he had committed a huge mistake, under the influence of liquor and ganja, he had taken Ankur in the bushes for the purposes of sodomizing and on hue and cry made by Ankur, he had killed him and after taking off the clothes from the body he had disposed of the dead body of Ankur in the pond. It was further stated that Nangu @ Ram Babu said to his cousin brother that he may take money and get the matter settled with Mahesh. Therefore, the informant has stated that he has full confidence that his son Ankur has been murdered by Nangu @ Ram Babu and he may be sent to jail.
5. After the First Information Report was lodged, the Police investigated the crime and after collecting the evidence, a charge-sheet Ex. Ka-7 was submitted under Section 173(2) Cr.P.C. against Nangu @ Ram Babu under Section 302, 201 & 377 read with Section 511 I.P.C. The learned Magistrate after taking cognizance and complying with the provisions of Section 207 Cr.P.C. committed the case for trial to the court of Sessions. On 09.02.2011, accused Nangu @ Rambabu was charged under Section Section 302, 201 & 377 read with Section 511 I.P.C. During the trial, statement of seven persons were recorded by the prosecution namely Mahesh (father of the deceased Ankur) PW-1, Rajesh Kumar PW-2, Dr. S. P. Singh (doctor who had conducted post mortem of the deceased) PW-3, Dr. A. K. Sharma PW-4, Ram Narayan Singh PW-5, S.I. Manoj Kumar Yadav PW-6 and Shahabuddin PW-7. Statement of accused namely Nangu @ Rambabu was recorded under Section 313 Cr.P.C.
6. The prosecution produced written complaint Ex. Ka-1, Inquest report Ex. Ka-2, Recovery Memo Ex. Ka-3, Post Mortem Report Ex. Ka-3A, Pathology report Ex. Ka-4, Site plan Ex. Ka-5, Charge Sheet Ex. Ka-6, Photograph Deadbody Ex. Ka-7, Memo of Deadbody Challan Ex. Ka-8, Specimen Mohar Ex Ka-9, Letter to C.M.O. Ex. Ka-10, Police Station Report Ex. Ka-11, Copy of G.D. Report Ex. Ka-12 and written report Ex. Ka-13 as documentary evidence.
7. After considering the entire evidence, the learned Sessions Judge convicted the accused Nangu @ Rambabu under Section 302 I.P.C. and sentenced the accused/appellant with life imprisonment and fine of Rs. 20,000/- and in case of default of payment of fine, one year simple imprisonment, under Section 377/511 I.P.C. sentenced the accused/appellant five years imprisonment and fine of Rs. 5,000/- and in case of default of payment of fine, six months simple imprisonment and under Section 201 I.P.C., sentenced the accused/appellant three years imprisonment and fine of Rs. 2,000/- and in case of default of payment of fine, one month simple imprisonment. All the sentences are directed to be run concurrently.
8. Heard learned counsel for the accused/appellant, learned A.G.A. for the State and perused the material on record.
9. Learned counsel for the accused-appellant assailed the order of conviction and made following submissions:
I) The case of the prosecution is solely based upon the extra judicial confession of the accused which is not reliable. This extra judicial confession cannot form the basis of conviction of the appellant since it has no corroboration and when examined in the light of settled principles of law, it is inconsequential, thus, the accused is entitled to the benefit of doubt.
II) The 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.
III) There is no reason for accused appellant to have made confession before the PW-2 as admittedly PW-2 is not in good terms with the accused and was also related with the PW-1 (cousin brother) who was admittedly having enmity with the accused appellant.
IV) In the present case, there was neither any eye witness nor had the prosecution proved the complete of chain circumstances, there was no direct evidence of involvement of the appellant in the commission of crime.
V) In any case, the objects recovered by the police have no link with the commission of the crime, as such, it would be impermissible in law to use these recoveries against the accused for sustaining the conviction. No recovery has been made in furtherance to confessional statement of the accused.
VI) The recovered articles of the deceased (pant, vest & underwear) were not sent for chemical analysis by the investigating officer nor there is any forensic report on record. In the pathology report Ex. Ka-4, no sperms were found in the slide.
VII) The alleged extra judicial confession made before the PW-2 is not reliable for the reasons that the PW-2 is related and inimical witness and moreover the alleged extra judicial confession of the accused was made before PW-2 Rajesh Kumar after 16-17 days of the occurrence.
VIII) No blood was found by the investigating officer on the spot. There is an inordinate delay in lodging the F.I.R.
IX) The Court have failed to appreciate the medical and other evidence placed on record in its correct perspective.
X) No motive have been established by the prosecution for commission of the crime by the accused.
XI) The case of the prosecution is based on circumstantial evidence and chain of circumstances proved by the prosecution is not complete and the prosecution has miserably failed to establish the fact that only the accused appellant and no one else could have committed the offence.
XII) The prosecution has miserably failed to prove its case beyond reasonable doubt. It is settled position of law that suspicion howsoever grave cannot take place of the proof.
XIII) The appellant is innocent and has been falsely implicated in this case on account of enmity.
XIV) No recovery under Section 27 of the Indian Evidence Act was made by the investigating agency.
10. Per contra, learned A.G.A. argued that the extra judicial confession in the present case is admissible as it is duly corroborated by other prosecution witnesses, and thus, the trial court was fully justified in convicting the accused appellant. It was also contended by the learned A.G.A. for the State that the present case is of circumstantial evidence and the prosecution has succeeded in establishing every circumstance of chain of events that would fully support the view that the accused is guilty of the offence. The trial court while dealing with the judgment under appeal, upon proper appreciation of evidence, thus, has come to right conclusion.
11. With the help of both the counsel, learned counsel for the appellant and learned A.G.A. for the State, we have perused the record of the case from which it is clear that PW-1 is not the eye-witness of the incident. In his examination-in-chief, PW1 has stated that his cousin brother Rajesh Kumar PW-2 and one Sahabuddin PW-7 told PW-1 that the accused came to them and said that the accused has committed a huge mistake under the influence of liquor and ganja, in the evening of Saturday, the accused has taken Ankur son of PW-1 with a view to sodomise him to the bushes and attempted to sodomise Ankur on which Ankur raised hue and cry and therefore, he killed Ankur and disposed of the dead body in the pond. It was further stated by the accused that as the police came to know about these facts, requested them to take money and get the matter settled with Mahesh (PW-1). In his cross-examination PW-1 deposed that he has raised suspicion for murder of his son Ankur against Nangu @ Rambabu. It has been further stated by PW-1 that he had enmity with the accused appellant Nangu @ Rambabu with regard to agriculture and police had drawn proceedings under Section 107/16 Cr.P.C. against both the parties. It had also been admitted by the PW-1 in his cross-examination that he had long standing family enmity with the Nangu @ Rambabu and prior to the incident Nangu @ Rambabu said to PW1 that he would murder one or two persons. In his cross-examination, it had also been stated by PW-1 that at about 19 days later, the PW-1 came to know that Nangu @ Rambabu has murdered his son Ankur but subsequently he said that this news came to him 5-6 days after the incident and he got the report lodged in this regard after 6 or 7 days. In his cross-examination, PW-1 had also admitted that Rajesh Kumar PW-2 is his real cousin brother (चचेरा भाई). In his cross-examination, he had also stated that Rajesh Kumar PW-2 had informed the PW-1 that his son was murdered by Nangu @ Rambabu and prior to this information given by Rajesh Kumar PW-2, he had no information in this regard that Nangu @ Rambabu had murdered his son Ankur. It has further stated that nobody else in the village had informed the PW-1 that his son was murdered by Nangu @ Rambabu.
12. PW-2 Rajesh Kumar in his examination-in-chief had stated that after 16-17 days of the incident, accused Nangu @ Rambabu came to him and told that the accused has taken Ankur son of PW-1 with a view to sodomise him to the bushes and attempted to sodomise Ankur on which Ankur raised hue and cry and therefore, he killed Ankur and disposed of the dead body in the pond. It was further stated by the accused that as the police came to know about these facts, requested them to take money and get the matter settled with Mahesh (PW-1). It was further stated by the PW-2 that he informed Mahesh PW-1, then PW-1 gave a written complaint to the police. In his cross-examination by the defence, PW-2 has admitted that Mahesh is his cousin brother (चचेरा भाई). It has been further stated by PW-2 that the PW-2 or his family had no quarrel with Nangu @ Rambabu or his family. Other family members had quarrel with Nangu @ Rambabu. It had been further stated by PW-2 in his cross-examination that Nangu @ Rambabu used to quarrel and abuse him after drinking liquor and therefore, there was enmity. It had been admitted by PW-2 in his cross-examination that Nangu @ Rambabu used to abuse under the influence of liquor. It had been further stated by PW-2 in his cross-examination that Nangu @ Rambabu told about the incident to PW-2 in his agricultural field and there was nobody in the agricultural field except PW-2. It had been further stated by PW-2 that he could not recollect the time whether it was morning or evening when the accused told him about the incident.
13. PW-3 Dr. S. P. Singh is the doctor who has proved the post mortem report of the deceased Ankur.
14. PW-4 Dr. A. K. Sharma, pathologist in his examination-in-chief has stated that on examination of slide, no sperms were found.
15. PW-5 Sri Ram Narayan Singh, C. O. Laharpur, Sitapur has proved the investigation.
16. PW-6 S. I. Manoj Kumar Yadav has proved the inquest report and other relevant documents.
17. PW-7 Sahabuddin son of Sher Ali was declared hostile as he denied that Nangu @ Rambabu ever confessed his guilt before him.
18. The accused was examined under Section 313 Cr.P.C. and denied the allegation leveled against him. In reply to question no. 8 that why case has been lodged against him, the accused appellant replied that because of old enmity. In his additional statement under Section 313 Cr.P.C., the accused has denied of making extra judicial confession before Rajesh Kumar.
19. From the oral evidence as referred above, we find that there is no direct evidence against the accused appellant of committing the crime.
20. The learned trial court relying upon the extra judicial confession made by the accused before PW-2 has convicted the accused.
21. It has been submitted by the learned counsel for the appellant that there is no eye-witness account of the crime being committed by the accused appellant and the case is of circumstantial evidence. It was also contended by the learned counsel for the appellant that the trial court committed grave error in relying upon the uncorroborated extra judicial confession alleged to have been made by the accused before PW-2 Rajesh Kumar.
22. It has been further contended by the learned counsel for the appellant that the prosecution has miserably failed to prove the complete chain of circumstances to bring the guilt of the accused.
23. Per contra, learned A.G.A. has submitted that extra judicial confession could be relied upon by the Court even without there being any corroboration of the same. In this connection, learned A.G.A. has placed reliance upon the decision of the Apex Court in case of Ram Lal v. State of Himachal Pradesh reported in (2019) 17 SCC 411. It has been further contended by learned A.G.A. that the prosecution has proved its case by leading evidence that it was only the accused who could have committed the crime and except for the accused no one else has committed the crime.
24. There is no doubt that in the present case there is no eye-witness account. 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 evidence, which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon the extra judicial confession, the Court has to examine the same with greater degree of care and caution.
25. It is settled principles of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever, the Court upon due appreciation of entire prosecution evidence, intends to base a conviction on an extra judicial confession, court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, extra judicial confession suffers from the 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 conviction on such a confession. In such circumstance, the Court would be fully justified in ruling such evidence out of consideration.
26. Confessions may be divided into two classes, i.e. judicial and extra-judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra- judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warwickshall: (1783) 1 Lesch 263). It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn., Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence-alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused.
27. Now we may examine some judgments dealing with this aspect:
I) In State of Rajasthan v. Raja Ram reported in (2003) 8 SCC 180, the Apex Court laid down the principles that (SCC p. 192, para 19 & 20):
“19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
20. If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by learned counsel for the respondent-accused, is a matter of prudence and not a invariable rule of law…………….”
II) In Balwinder Singh v. State of Punjab, reported in 1996 SCC (Cri) 59, the Apex Court stated the principle that: (SSC p. 265, para 10)
“10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.”
III) In Pakkirisamy v. State of T. N. reported in (1997) 8 SCC 158, the Apex Court held that: (SCC p. 162, para 8)
“8. …. It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.”
IV) Again in Kavita v. State of T. N. reported in (1998) 6 SCC 108, the Apex Court stated the dictum that: (SSC p. 109, para 4)
“4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made.”
V) In the case of Aloke Nath Dutta v. State of W.B. reported in (2007) 12 SCC 230, the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed: (SCC pp. 265-66, paras 87 & 89)
“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
* * *
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.”
VI) Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan reported in (2010) 10 SCC 604 held that : (SCC p. 611, paras 29-30)
“29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore (1970) 2 SCC 105, Mulk Raj v. State of U.P. AIR 1959 SC 902, Sivakumar v. State (2006) 1 SC 714 (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and Mohd. Azad v. State of W.B. (2008) 15 SCC 449”
VII) 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 reported in (2009) 5 SCC 740, held as under : (SCC pp. 772-73, para 53)
“53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.”
VIII) Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. (2011) 11 SCC 754 and Pancho v. State of Haryana (2011) 10 SCC 165.
IX) In Sahadevan & Anr. v. State of Tamil Nadu reported in (2012) 6 SCC 403, the Apex Court laid down the principles that: (SCC p. 412, para 16)
“16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
X) In Chandrapal (earlier M.P.) v. State of Chhattisgarh reported in 2022 LiveLaw (SC) 529, (Para 11) the Apex Court laid down the principle that however, the Apex Court has consistently held that an extra-judicial confession is a weak kind of evidence and unless it inspire confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra-judicial confession.
XI) In Subramanya v. State of Karnataka reported in 2022 LiveLaw (SC) 887, the Apex Court held that: (paras 54, 57, 58 & 59)
“54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.
57. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.
58. This Court in Kashmira Singh v. The State of Madhya Pradesh reported in AIR 1952 SC 159, had observed as under:
“The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. [para 8, 10]”
59. In the case on hand, the High Court committed a serious error in making the confessional statement as the basis and thereafter going in search for corroboration. The High Court concluded that the confessional statement is corroborated in material particulars without first considering and marshalling the evidence against the appellant convict herein excluding the conviction altogether from consideration. As held in the decision, cited above, only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion.
XII) In Pawan Kumar Chourasia v State of Bihar reported in 2023 LiveLaw (SC) 197, the Apex Court held that: (para 5)
“5. As far as extra-judicial confession is concerned, the law is well settled. Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility.”
28. 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 the facts of the present case.
29. PW-1 in his statement has stated that his cousin brother (चचेरा भाई) Rajesh Kumar PW-2 and one Sahabuddin PW-7 has informed the PW-1 that Nangu @ Rambabu came to them and said that he committed a huge mistake and further told that in the evening of Saturday, he had taken Ankur in the bushes for sodomizing and when he attempted, Ankur raised hue and cry, therefore, the accused killed Ankur and disposed of the dead body in the pond. It was further stated by the accused before these witnesses as per the evidence of PW-1 that as the police came to know about the incident, requested them to get the matter compromised with PW-1 by taking money.
30. Rajesh Kumar cousin brother of PW-1 was examined as PW-2. Sahabuddin PW-7, the other person before whom the alleged extra judicial confession was made by the accused was declared hostile as he has deposed that the accused has never confessed before him.
31. It has come in the evidence of PW-1 Mahesh and PW-2 Rajesh Kumar that both the witnesses were close relatives i.e. cousin brothers and were on inimical terms with the accused appellant. PW-1 had even admitted that proceedings under Section 107/16 Cr.P.C. were drawn against PW-1 and accused appellant. Though PW-2 had not admitted of having any criminal case but has admitted that accused used to abuse PW-2 after drinking.
32. In our opinion, it is improbable that the accused would repose confidence in a person who is inimical towards him and confess his guilt. The other independent witness as alleged by the prosecution i.e. PW-7 has not supported the prosecution story.
33. From the perusal of the evidence on record, it is also clear that except for the extra-judicial confession made by the accused appellant before PW-2 Rajesh Kumar, there is no other evidence worth mentioning proving involvement of the accused appellant in the crime. There was no recovery on the pointing out of the appellant. The clothes which were recovered from the place of incident were never sent for forensic examination. There was no evidence of even last seen against the accused.
34. PW-2 Rajesh Kumar who is the only witness of extra-judicial confession, was not able to depose about the exact time when the aforesaid confession was made by the accused-appellant i.e. whether the accused made confession in the morning or in the evening. Even if PW-2 was not in inimical terms with the accused-appellant, he admitted that the accused-appellant used to abuse PW-2 and in this regard, PW-2 has also made complaint to the brother of the accused-appellant but has not lodged any report to the police. It was also stated by PW-2 that he was not in a position to tell that whether there was any criminal case between PW-2 and family members of accused-appellant Nangu @ Rambabu. Further PW-2 was the cousin brother ((चचेरा भाई) of PW-1 (informant and father of the deceased Ankur) who admittedly was having enmity with the accused and both PW-1 and accused-appellant were challaned under Section 107/16 Cr.P.C. by the police.
35. In view of the law laid down by Apex Court in State of Rajasthan v. Raja Ram (Supra) that: (SCC p. 192, para 19)
“19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.”
We are of the view that evidence of PW-2 Rajesh Kumar cannot be relied upon as there was no reason that accused would repose faith in a person who was inimical with him and was closely related to a person whose son was victim of crime.
36. A reference may be made to an earlier decision in Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of the this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(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 compete 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.
37. Recently in case of Nikhil Chandra Mondal v State of West Bengal reported in (2023) 6 SCC 605, the Apex Court has held that: (SCC p. 609, para 11)
“11. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that 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. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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.
38. From the perusal of the evidence which has been brought on record, we are of the opinion that except for the extra-judicial confession made by the appellant before PW-2 Rajesh Kumar, there was no evidence against the accused-appellant as has such the prosecution has miserably failed to prove the circumstances and complete chain of events to prove the guilt of the accused-appellant.
39. So far as the judgment in case of Ram Lal v. State of Himachal Pradesh (Supra) relied upon by learned A.G.A., the Apex Court has held that : (p. 418, para 14)
“14. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra-judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another (1992) 3 SCC 204, this court after referring to Piara Singh and Others v. State of Punjab (1977) 4 SCC 452 held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.
40. There is no doubt that extra-judicial confession by an accused need not in all cases to be corroborated. In the aforesaid case, the court was dealing with a matter with regard to the offence of embezzlement made by an employee of the bank.
41. In the present case, the accused-appellant has been held guilty for the offence under Section 302 Cr.P.C. and we have already held that the statement of PW-2 is not worth reliance for the reasons mentioned above. The contention of learned counsel for the appellant though correct in principle but is not attracted in the facts of the present case.
42. To summarize, we hold that the evidence on the point of extra-judicial confession does not inspire confidence and cannot be relied upon. There is no reliable evidence to satisfy the judicial mind that why the appellant will repose faith and make confess before a person who is in inimical terms with the accused-appellant.
43. In the aforesaid facts and circumstances, we find and hold that the prosecution has failed to substantiate the charges levelled against the accused-appellant. If, extra-judicial confession is excluded, nothing remains in the prosecution case, therefore, the accused-appellant is legitimately entitled to avail the benefit of doubt. Hence, the impugned judgment and order of conviction passed by Additional District and Sessions Judge, Court No. 5, Lakhimpur Khiri could not withstand the legal position and requires to be reversed by acquitting the accused-appellant from the charges levelled against him. Consequently, the appeal deserves to be allowed by setting aside the impugned judgment and order of conviction.
In view of that following order:-
I) The appeal stands allowed.
II) The judgment and order of conviction dated 01.08.2015 passed by learned Additional District and Sessions Judge, Court No. 5, Lakhimpur Khiri in S. T. No. 761 of 2010, under Section 302, 377, 511 & 201 I.P.C., Police Station Gola, District Lakhimpur Khiri, stands quashed and set aside.
III) The accused-appellant, Nangu @ Rambabu is acquitted of the offence punishable under Section 302, 377, 511 & 201 I.P.C.
IV) The accused be released from jail forthwith, if not required in any other offence.
V) The appellant is directed to file a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure within six weeks from the date of release.
VI) Let the lower Court records along with a copy of this judgment be transmitted to the Trial Court and the Chief Judicial Magistrate concerned for taking necessary action. A copy of this judgment shall also be forwarded to the appellant through the Chief Judicial Magistrate or the Trial Court concerned, as the case may be.
VII) The amount of fine, if deposited, be refunded to the accused.
