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whether extra-judicial confession of A1-Pratham inspires confidence and then find out whether there are other cogent circumstances on record, to support it. =This Court clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the

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REPORTABLE


 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

 CRIMINAL APPEAL NO.1050 OF 2005

PANCHO ... APPELLANT

 Versus

STATE OF HARYANA ... RESPONDENT

 WITH

 CRIMINAL APPEAL NO.1222 OF 2005

PRATHAM ... APPELLANT

 Versus

STATE OF HARYANA ... RESPONDENT

 JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. These two appeals, by special leave, can be disposed of 

by a common judgment as they arise out of the same facts 

and challenge the same judgment and order dated 3/5/2005 

of the Punjab and Haryana High Court. Criminal Appeal 

 2

No.1050 of 2005 is filed by original accused 2 - Pancho and 

Criminal Appeal No.1222 of 2005 is filed by original accused 

1 - Pratham. For the sake of convenience, original accused 

1 - Pratham is referred to as "A1-Pratham", original accused 

2 - Pancho is referred to as "A2-Pancho" and original 

accused 3 - Gajraj is referred to as "A3-Gajraj". 

2. A1-Pratham, A2-Pancho and A3-Gajraj were tried by 

the Additional Sessions Judge, Faridabad in Sessions Case 

No.40 of 11.12.2002 / 30.11.1999 for offence punishable 

under Section 396 of the Indian Penal Code (for short, "the 

IPC"). According to the prosecution, two more persons 

were involved in the offence in question viz. Shishu Ram @ 

Shishu, who expired after the charge was framed and one 

Bhago, who is absconding. He is declared absconder. 

3. Shortly stated the case of the prosecution is that PW-1 

Jagat Singh, brother of deceased Kartar Singh lodged FIR 

(Ex-PA) on 8/2/1999 at 8.40 a.m. with PW-12 ASI Keshav 

Ram at Sadar Palwal, Faridabad. PW-1 Jagat Singh 

 3

reported that on 7/2/1999 deceased Kartar Singh had left 

their house for the Sugar Mill, Palwal. He drove his own 

tractor. He was to bring back two trolleys of sugar cane 

which were already parked outside the Sugar Mill. PW-1 

Jagat Singh further reported that on 8/2/1999 at about 7.00 

a.m., they were informed that the dead body of Kartar Singh 

was lying in a pool of blood at a distance of 10 feet from the 

road in the field of PW-1 Jagat Singh, a resident of 

Gopalgarh. Both the trolleys were parked on the road side 

but the tractor was not at the spot. PW-1 Jagat Singh 

further reported that some unknown persons opened fire at 

deceased Kartar Singh due to which he sustained injuries on 

his waist and succumbed to the said injuries. PW-1 Jagat 

Singh further reported that the said unknown persons had 

taken away the tractor. 

4. It appears that till 31/7/1999, the investigating agency 

did not make any progress. According to the prosecution, 

on 31/7/1999, A1-Pratham approached PW-4 Nathi Singh, 

Ex-Member of Panchayat and told him that on 5/2/1999 

 4

when he, accused-Shishu and A3-Gajraj were sitting in the 

house of A1-Pratham, A3-Gajraj told them that they were in 

need of money. A2-Pancho told them that he had a country 

made pistol. They discussed about the Sugar Mill at 

Bamnikhera where some farmers came with new tractors. 

They planned a robbery. They went on a truck to 

Bamnikhera at 7.00 p.m. where A3-Gajraj and accused-

Shishu had a conversation with deceased Kartar Singh. 

When the tractor was unloaded, both of them accompanied 

deceased Kartar Singh in his tractor. Accused-Shishu and 

A1-Pratham were standing outside. When the tractor 

traveled a distance of two killas, A3-Gajraj gave a signal to 

A2-Pancho, who fired a shot at deceased Kartar Singh from 

his country made pistol. A3-Gajraj stopped the tractor, 

removed the dead body of deceased Kartar Singh and threw 

it in a wheat field. They left the tractor trolley at the spot 

and ran away with the tractor so as to reach Paramendra via 

Barsana. A1-Pratham is further stated to have told PW-4 

Nathi Singh that they took the tractor to accused-Bhago and 

 5

narrated the entire incident to him and asked him to sell the 

tractor and thereafter they went back to their house. A1-

Pratham is further stated to have told PW-4 Nathi Singh that 

they came back after a couple of days and came to know 

that the tractor could not be sold. Therefore, they removed 

some parts of the tractor and left it on the road near 

Bharatpur. As desired by A1-Pratham, he was produced 

before PW-24 Inspector Raghbir Singh on 31/7/1999 by PW-

4 Nathi Singh. PW-24 Inspector Raghbir Singh arrested A1-

Pratham and interrogated him. According to PW-24 Raghbir 

Singh, during interrogation, A1-Pratham told him that about 

3-4 months back, he along with accused Shishu and other 

accused had snatched a tractor, shot the driver of that 

tractor, thrown his body in the field and taken the tractor 

with them. On the same day, accused-Shishu was arrested 

by PW-24 Raghbir Singh. 

5. According to the prosecution, on 1/8/1999, A1-Pratham 

disclosed that he had left the tractor on the road near 

Bharatpur, concealed some parts, which had come to his 

 6

share i.e. the seat cover, one thin rod along with bumper in 

his field. In pursuance to this disclosure statement, the said 

articles were recovered at the instance of A1-Pratham. A 

battery box with one tool box is stated to have been 

recovered at the instance of accused-Shishu. On 

16/8/1999, PW-24 Inspector Raghbir Singh arrested A2-

Pancho near Dabchick on the basis of suspicion. His 

personal search led to recovery of a country made pistol of .

315 bore (Ex-P12) which was taken into possession vide 

recovery memo (Ex-PL). It was attested by PW-15 

Samunder Singh, brother of deceased Kartar Singh and one 

Hardev. On a statement made by A2-Pancho, the police also 

discovered an iron pipe and three pieces of rope from under 

stones at Village Barsana which were identified by PW-15 

Samunder Singh to be that of their tractor. They were taken 

into possession vide recovery memo (Ex-PM/1). On 

25/9/1999, A3-Gajraj was arrested and at his instance, 

three pieces of ropes are stated to have been recovered. 

 7

6. Though the accused were charged under Section 396 of 

the IPC, learned Sessions Judge was of the view that 

conviction of the three accused cannot be recorded under 

Section 396 of the IPC as only four persons had participated 

in the crime. Learned Sessions Judge was of the view 

further that A2-Pancho could be convicted under Section 302 

of the IPC simplicitor and A1-Pratham and A3-Gajraj could 

be convicted under Section 302 read with Section 34 of the 

IPC. According to him, all the accused were also liable to be 

convicted under Section 392 of the IPC. So far as A2-

Pancho is concerned, learned Sessions Judge sentenced him 

to death for offence under Section 302 of the IPC as 

according to him, it was a heinous crime which would have 

wide ramification on the life of agricultural community. He 

sentenced A1-Pratham and A3-Gajraj to undergo 

imprisonment for life under Section 302 read with Section 34 

of the IPC. All the accused were sentenced to undergo 

rigorous imprisonment for 10 years for the offence under 

Section 392 of the IPC. 

 8

7. While dealing with the reference under Section 366 of 

the Criminal Procedure Code (for short, "the Code") and the 

criminal appeal filed by A1-Pratham and A3-Gajraj, the High 

Court commuted the sentence of death imposed on A2-

Pancho to imprisonment for life. The High Court confirmed 

the sentence of life imprisonment imposed on A1-Pratham 

and A3-Gajraj. The High Court maintained the sentence 

imposed on the accused for offence under Section 392 of the 

IPC. 

8. We have heard counsel for the parties. We also 

requested Mr. Lalit, learned senior counsel to assist us. In 

deference to our request, Mr. Lalit has, as usual, ably 

assisted us. 

9. There is no dispute about the fact that deceased Kartar 

Singh died on account of firearm injuries. Evidence of PW-

17 Dr. Jagmohan Mittal, who did the postmortem on the 

dead body of deceased Kartar Singh is clear on that point. 

 9

10. Extra-judicial confession made by A1-Pratham is the 

main plank of the prosecution case. It is true that an extra-

judicial confession can be used against its maker, but as a 

matter of caution, courts look for corroboration to the same 

from other evidence on record. In Gopal Sah v. State of 

Bihar1, this court while dealing with an extra-judicial 

confession held that an extra-judicial confession is on the 

face of it, a weak evidence and the courts are reluctant, in 

the absence of chain of cogent circumstances, to rely on it 

for the purpose of recording a conviction. We must, 

therefore, first ascertain whether extra-judicial confession of 

A1-Pratham inspires confidence and then find out whether 

there are other cogent circumstances on record, to support 

it. 

11. We have already referred to the evidence of PW-4 Nathi 

Singh before whom A1-Pratham is stated to have confessed 

that A2-Pancho had shot dead deceased Kartar Singh with 

country made pistol. PW-24 Inspector Raghbir Singh has 

1 (2008) 17 SCC 128

 1

stated that A1-Pratham confessed that they had shot dead 

deceased Kartar Singh. He does not say that A1-Pratham 

told him that A2-Pancho had fired at deceased Kartar Singh. 

The incident is stated to have occurred in the night 

intervening 7/2/1999 and 8/2/1999. About five months 

later, on 31/7/1999, A1-Pratham is stated to have made a 

confession. This delay creates a doubt about its credibility. 

Besides, in his evidence PW-4 Nathi Singh has stated that 

his village is about 35 to 40 k.m. from the village of A1-

Pratham and none of his relatives stay in that village. He 

has stated that he knew A1-Pratham; that he had come to 

his village at about 7.30 to 8.00 a.m. and stayed with him 

for 2.00 to 2.30 hours. It does not stand to reason that A1-

Pratham would go voluntarily to PW-4 Nathi Singh, who 

stayed in another village which is about 35 to 40 k.m. away 

from his village and make a confessional statement to him. 

The prosecution evidence does not indicate that A1-Pratham 

and PW-4 Nathi Singh knew each other intimately. It is, 

therefore, difficult to accept the prosecution case that A1-

 1

Pratham made any extra-judicial confession to PW-4 Nathi 

Singh. It may be stated here that in his statement recorded 

under Section 313 of the Code, A1-Pratham has denied that 

he made any such statement. This retraction further makes 

a dent in the alleged extra-judicial confession. 

12. A2-Pancho was arrested on 16/8/1999 near Dabchick 

Modale. According to the prosecution, his search resulted in 

recovery of a country made pistol (Ex-P/12) of .315 bore. 

The recovery of country made pistol is made more than 

about six months after the date of incident. It is true that 

the report of FSL (Ex-PT) states that the country made pistol 

marked W/1 was test fired and that bullet marked BC/1 

taken out from the body of deceased Kartar Singh had been 

fired from the said country made pistol. The report also 

states that the holes on the clothes of deceased Kartar Singh 

which were sent for examination, had been caused by bullet 

projectiles. We are, however, of the opinion that, on the 

basis of this report, it is difficult to come to a conclusion that 

A2-Pancho was responsible for the firearm injury caused to 

 1

deceased Kartar Singh. The prosecution has not led any 

evidence to show as to in whose custody this pistol was 

during the period of six months after the incident. In his 

statement recorded under Section 313 of the Code, A2-

Pancho has denied that any such recovery was made from 

him. Even assuming that the recovery is proved, we are 

unable to hold in the absence of any other cogent evidence 

that it is sufficient to establish that A2-Pancho caused the 

fatal firearm injury to deceased Kartar Singh with the said 

pistol. 

13. Apart from the pistol which is stated to have been 

recovered from A2-Pancho, the prosecution has relied on 

certain other discoveries made at the instance of the 

accused. On 1/8/1999, pursuant to the statement made by 

A1-Pratham, one bumper, one patli and one seat cover are 

stated to have been discovered. PW-15 Samunder Singh, 

brother of the deceased identified the said articles to be that 

of their tractor. On 16/8/1999 at the instance of A1-Pancho, 

three pieces of ropes along with an iron pipe are stated to 

 1

have been discovered. PW-15 Samunder Singh identified 

them as parts of their tractor. These discoveries are made 

five months after the incident and significantly, PW-15 

Samunder Singh, who is the brother of the deceased, is 

stated to be present when the discoveries were effected and 

all articles are identified by him. Pertinently, he has signed 

the discovery statements of all the accused. Articles which 

are stated to have been discovered are easily available in 

the market. There is nothing special about them. Belated 

discovery of these articles raises a question about their 

intrinsic evidentiary value. Besides, if as contended by the 

prosecution, the accused wanted to sell parts of the tractor, 

it is difficult to believe that they would preserve them till 

1/8/1999. The evidence relating to discovery of these 

articles must, therefore, be rejected. 

14. As against A2-Pancho, the prosecution is relying mainly 

on the extra-judicial confessional statement of A1-Pratham. 

The question which needs to be considered is what is the 

evidentiary value of a retracted confession of a co-accused? 

 1

15. The law on this point is well settled by catena of 

judgments of this court. We may, however, refer to only 

two judgments to which our attention is drawn by Mr. Lalit, 

learned senior counsel. In Kashmira Singh v. The State 

of Madhya Pradesh,2 referring to the judgment of the Privy 

Council in Bhuboni Sahu v. The King,3 and observations of 

Sir Lawrence Jenkins in Emperor v. Lalit Mohan 

Chukerbutty,4 this court observed that proper way to 

approach a case involving confession of a co-accused 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 it is not necessary to call the confession in 

aid. This court further noted that 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 

2 AIR 1952 SC 159

3 76 Indian Appeals 147

4 38 Cal. 559

 1

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. 

16. In Haricharan Kurmi v. State Bihar,5 the 

Constitution Bench of this court was again considering the 

same question. The Constitution Bench referred to Section 

3 of the Evidence Act and observed that confession of a co-

accused is not evidence within the meaning of Section 3 of 

the Evidence Act. It is neither oral statement which the 

court permits or requires to be made before it as per Section 

3(1) of the Evidence Act nor does it fall in the category of 

evidence referred to in Section 3(2) of the Evidence Act 

which covers all documents produced for the inspection of 

the court. This court observed that even then Section 30 

provides that a confession may be taken into consideration 

not only against its maker, but also against a co-accused. 

Thus, though such a confession may not be evidence as 

5 AIR 1964 SC 1184

 1

strictly defined by Section 3 of the Evidence Act, it is an 

element which may be taken into consideration by the 

criminal court and in that sense, it may be described as 

evidence in a non-technical way. This court further 

observed that Section 30 merely enables the court to take 

the confession into account. It is, not obligatory on the 

court to take the confession into account. This court 

reiterated that a confession cannot be treated as substantive 

evidence against a co-accused. Where the prosecution relies 

upon the confession of one accused against another, the 

proper approach is to consider the other evidence against 

such an accused and if the said evidence appears to be 

satisfactory and the court is inclined to hold that the said 

evidence may sustain the charge framed against the said 

accused, the court turns to the confession with a view to 

assuring itself that the conclusion which it is inclined to draw 

from the other evidence is right. This Court clarified that 

though confession may be regarded as evidence in generic 

sense because of the provisions of Section 30 of the 

 1

Evidence Act, the fact remains that it is not evidence as 

defined in Section 3 of the Evidence Act. Therefore, in 

dealing with a case against an accused, the court cannot 

start with the confession of a co-accused; it must begin with 

other evidence adduced by the prosecution and after it has 

formed its opinion with regard to the quality and effect of 

the said evidence, then it is permissible to turn to the 

confession in order to receive assurance to the conclusion of 

guilt which the judicial mind is about to reach on the said 

other evidence. 

17. Applying the above principles to the case on hand, we 

find that so far as A2-Pancho is concerned, except the 

evidence of alleged belated discovery of certain articles at 

his instance, which we have already found to be doubtful, 

there is no other evidence on record to connect him to the 

offence in question. When there is no other evidence of 

sterling quality on record establishing his involvement, he 

cannot be convicted on the basis of the alleged extra-judicial 

confession of the co-accused A1-Pratham, which in our 

 1

opinion, is also not credible. Once A1-Pratham's extra-

judicial confession is obliterated and kept out of 

consideration, his conviction also cannot be sustained 

because we have come to the conclusion that the alleged 

discovery of articles at his instance cannot be relied upon. 

There is thus, no credible evidence to persuade us to uphold 

the conviction of A1-Pratham. 

18. In view of the above, we set aside the impugned 

judgment and order. A1-Pratham and A2-Pancho are on 

bail. Their bail bonds stand discharged. 

19. Appeals are disposed of in the aforestated terms. 

 .....................................................J.

 (AFTAB ALAM)

 .....................................................J.

 (RANJANA PRAKASH DESAI)

NEW DELHI,

OCTOBER 20, 2011.

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