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Extra Judicial Confession – Apex court held that it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even 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.and further held that we are not prepared to accept the plea that merely because one of the witnesses to the confessional statement did not support the confession in its entirety, the entire confession should be brushed aside as unreliable even though independent witness like the Village Administrative Officer had supported the recording of conviction.= BASKARAN & ANR. ..Appellants Versus STATE OF TAMIL NADU ..Respondent = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41478

Extra Judicial Confession – Apex court held that it is  not open  to any court to  start  with

the presumption that extra-judicial confession is  insufficient  to  convict the accused even  though  it  is  supported  by  the  other   circumstantial evidence and  corroborated by independent  witness which is the position  in the instant case.   The Courts  cannot be unmindful  of  the  legal  position that even 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.and further held that we are not prepared to accept the  plea that merely  because  one of the witnesses  to the  confessional  statement   did  not  support    the confession in its entirety, the entire confession should be   brushed  aside as  unreliable   even   though  independent   witness   like   the   Village Administrative  Officer   had  supported  the   recording   of   conviction.=

 

 

High Court of Madras affirming  the

conviction and sentence of the first appellant under Section  376  (2)  (g),

302 and  201 I.P.C. awarding sentence for life imprisonment along  with  Rs.

5,000/- fine, 10 years RI, along with Rs. 5,000/- fine and 3 years RI,  with

a fine of Rs. 2,000/- respectively.  

The Trial Court had  awarded  identical

sentences to Appellant  No.  2,  who  on  appeal  in  the  High  Court,  was

acquitted of the offence of murder under Section 302 IPC but his  conviction

and sentence under Section 376 I.P.C. was maintained.=

 

It is no doubt true that this Court time  and  again   has  held

that an extra-judicial confession can be relied upon only  if  the  same  is

voluntary and true and made in a fit  state  of  mind.   

The  value  of  the

evidence  as to the 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.   

But it is  not open  to any court to  start  with

the presumption that extra-judicial confession is  insufficient  to  convict

the accused even  though  it  is  supported  by  the  other   circumstantial

evidence and  corroborated by independent  witness which is the position  in

the instant case.  

The Courts  cannot be unmindful  of  the  legal  position

that even 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.

15.          Having  examined  the  instant  case  based  on  the  aforesaid

principle, we are not prepared to accept the  plea that merely  because  one

of the witnesses  to the  confessional  statement   did  not  support    the

confession in its entirety, the entire confession should be   brushed  aside

as  unreliable   even   though  independent   witness   like   the   Village

Administrative  Officer   had  supported  the   recording   of   conviction.

 

However, we have further taken note of the  fact that the conviction of  the

appellants  is  not based merely on the confessional statement but  also  on

other substantial  evidence relied upon by the prosecution    viz.  recovery

of the body,  post-mortem   report  matching  with  confessional  statement,

evidence of other independent  witness  who corroborated  the  recording  of

confessional statement in their  presence and  thus  do  not  create   doubt

about the  credibility  of the prosecution case so as to discard the same.

16.         We thus do not find any infirmity in the judgment and  order  of

the  High  Court  holding  the  appellants  guilty   and   sentencing   them

appropriately.  Consequently, the  appeal  fails  and  is  dismissed.    The

appellants are on bail.  Their bails bonds are cancelled and they  be  taken

into custody forthwith for serving out remaining part of the sentence.

 

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41478

  T.S. THAKUR, GYAN SUDHA MISRA 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 121 OF 2008
BASKARAN & ANR. ..Appellants

Versus

STATE OF TAMIL NADU ..Respondent

J U D G M E N T
GYAN SUDHA MISRA, J.
1 This appeal by special leave is directed against the judgment
and order dated 09.11.2006 passed by the High Court of Madras affirming the
conviction and sentence of the first appellant under Section 376 (2) (g),
302 and 201 I.P.C. awarding sentence for life imprisonment along with Rs.
5,000/- fine, 10 years RI, along with Rs. 5,000/- fine and 3 years RI, with
a fine of Rs. 2,000/- respectively. The Trial Court had awarded identical
sentences to Appellant No. 2, who on appeal in the High Court, was
acquitted of the offence of murder under Section 302 IPC but his conviction
and sentence under Section 376 I.P.C. was maintained.
2. The case of prosecution which led to the conviction and
sentence of the appellants summarily stated are as follows:
The Appellants -A1 & A2 along with two others had forcibly taken the
deceased girl to a secluded place on 21.10.1995 at about 7.00 p.m., when
she was raped and then in course of the same transaction, A1 had
strangulated her to death. Further, with a view to screen the offence, all
of them threw the dead body to a secluded place in an agricultural field.
The body was then discovered by the elder brother of the deceased girl, the
next day. Investigation of the case was thereafter conducted which
included the post-mortem report of the body of the deceased, wherein the
doctor had opined death due to strangulation, injuries on the body,
bleeding vaginal rupture. However, the vaginal smear didn’t reveal any
traces of semen. The initial investigation didn’t reveal the names of the
appellants and even the witnesses examined didn’t offer any clue in this
regard. Thus, there were no eye-witness to the incident in support of the
prosecution case.
3. After about 35 days, on 25.11.1995, the appellant No.1
approached PW10, the village Administrative Officer of Kadhili village
whereby he confessed that he along with appellant No.2 and two others
murdered the deceased after raping her and offered to surrender. This
confession was reduced into writing in presence of PW-11 who was there
and who signed the same. In pursuance to the confessional statement, the
I.O. took him to the scene of crime where some earth sample was taken and
then they went to A1’s home, where a diary belonging to the deceased was
recovered. The next day, on 26.11.1995, A-2 approached PW-13, the village
Administrative Officer of Sunderam Palli village and confessed about the
crime, in the presence of PW-14, who had attested the written confession
given to PW-13. The accused/appellants were then, committed to trial and
convicted on the basis of the extra-judicial confession. While A-1 had
identified A-4, A-2 had identified A-3 and thus, they too were arrested.
However, later the trial court had acquitted A-3 and A-4 and the State did
not challenge the same.
4. The High Court had to deal with the following two issues:
i) The nature of death of the deceased, whether rape was committed upon
her;

ii) The guilt of the Appellants with regard to the crime on the basis of
their extra-judicial confessions, which were given separately to PW-10 and
PW-13 by A1 and A-2 respectively.

5. The High Court found on the basis of the post-mortem report
that the death was caused due to strangulation and that the girl’s body
exhibited all other symptoms of rape except the presence of semen in the
vaginal swab.
6. The High Court was informed by the counsel of the appellants
that both the extra-judicial confessions (Ext. 7 by A-1 and Ext. 11 by A-
2) had striking similarity in their expression used thereunder although
they were made by two different people/accused at two different places;
but the court found it an accidental coincidence as the sequence of events
disclosed, was described in words that were commonly used.
7. However, the defence that was taken was that the two witnesses
PW-11 and PW-14 for A-1 and A-2’s confessions had turned hostile as to the
recovery of Diary from A-1’s house and a certain letter from the house of A-
2 due to which their evidence was challenged as not credible. However,
the High Court rejected the same on the ground that in case these witnesses
were ‘Obliging Witnesses’ to the prosecution, they could’ve supported the
entire prosecution case blindly and not turned hostile with reference to a
particular portion. The High Court therefore relied upon the witnesses’
statements with regard to the confessions that they made.
8. The High Court, however, granted some relief to Appellant No.2
by acquitting him from the charge of murder, on the basis of his
confessional statement, wherein he had asked Appellant No.1, at the time of
strangulation as to why was he doing it and hence the High Court held that
he had not participated in the murder and the deceased was strangulated by
A-1 alone, all of a sudden which led to her death.
9. We have taken note of the prosecution evidence and perused the
judgments of the Courts below and also heard the learned counsels at
length. The issue before us is whether the Appellants can be convicted
solely on the basis of these two extra-judicial confessions, which was
witnessed by PW-11 and PW-14 who have turned hostile with regard to some
portions of the prosecution evidence.
10. The High Court, however, granted some relief to the appellant
No. 2 by acquitting him of the charge of murder on the basis of his
confessional statement wherein he had asked appellant No.1 as to why he
was committing the act of strangulation and thus the High Court inferred
that he had not participated in the act of throttling the victim even
though the deceased was killed and was held to have been strangulated by
A-1 alone, all of a sudden and hence was pleased to acquit A-2 of the
charge of murder.
11. We have carefully perused the evidence led by the prosecution
as also the reasonings assigned by the judgment and order of the courts
below and heard learned counsels for the parties at length who in
substance had submitted that the impugned judgment is contrary to law,
weight of evidence, probabilities and circumstances of the case and the
material on record. According to his submission, the judgment is based
on mere surmises and conjectures and is, therefore, unsustainable in law
and liable to be set aside. The counsel for the appellant further
submitted that the conviction could not have been based on the
confessional statement of the accused as the witnesses who were stated to
be present at the time of recording of confessional statement had turned
hostile.
12. However, on a scrutiny of the background and circumstance
of the matter, we have taken note of the fact and find substance in
the plea of the prosecution that the accused A-1 and A-2 committed rape on
the victim one after the other and A-1 thought that that if the victim is
allowed to go alive, she may expose all of them and, therefore, A-1
throttled the neck of the deceased with his hands resulting in her
death and on noticing this, A-2 questioned him as to why he did like
that. Thus, even though A-2 had committed rape on the victim, his
acquittal under Section 302 IPC but conviction under Section 376 IPC was
rightly sustained.
13. In so far as A-1 is concerned, the background of the
prosecution story cannot be given a go by as the case of the prosecution
is that the first petitioner/A-1 was insulted by the deceased when he
attempted to develop intimacy with her and on being insulted by her, A-1
got angry and conspired with his friend and committed not only rape on
her, but also murdered the deceased. Although, there is no eye-witness to
this incident, the confessional statement of the accused appellants fully
corroborates circumstantial evidence as the post-mortem report revealed
that the deceased had died of strangulation which matched with the
confessional statement of the appellant accused. The sexual assault of rape
is also established from the post-mortem report which establishes that
the death of victim Janaki is homicidal and she was forcibly subjected to
rape at the instance of several persons. The evidence of PW-10 and PW-13,
the then Village Administrative Officers before whom the first and second
accused gave their extra-judicial confession, clearly unveils the case of
the prosecution and this evidence was further corroborated. From the
evidence of PW-11 (Radha Krishnan) and PW-14 (Selva Kumar) even though
they were treated as hostile, they have not been able to establish the
fact that the extra-judicial confession had not been recorded in their
presence. In addition the recovery memos from the 1st accused and the
2nd accused/appellants herein clearly establishes the charges levelled
against them. It further cannot be overlooked that PW-10 the then
Village Administrative Officer of Kadhili village speaks about the extra-
judicial confession of the 1st accused Baskaran and in this regard his
evidence was corroborated by PW-11 (Radha Krishnan) who is an
independent person and had no prior enmity with the 1st accused. Thus,
even though this witness had turned hostile in the chief –examination
itself, he spoke about the confession made by the 1st accused before the
Village Administrative Officer and his presence there and putting his
signature on the document regarding extra-judicial confession vide Ext.
P-7 cannot be discarded specially when this extra-judicial confession led
to the surrender of the accused who were then arrested and tried. PW-14
(Selvakumar) although turned hostile, the same was confined only about the
fact of recording confessional statement and he could not resile from the
same.
14. It is no doubt true that this Court time and again has held
that an extra-judicial confession can be relied upon only if the same is
voluntary and true and made in a fit state of mind. The value of the
evidence as to the 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. But it is not open to any court to start with
the presumption that extra-judicial confession is insufficient to convict
the accused even though it is supported by the other circumstantial
evidence and corroborated by independent witness which is the position in
the instant case. The Courts cannot be unmindful of the legal position
that even 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.
15. Having examined the instant case based on the aforesaid
principle, we are not prepared to accept the plea that merely because one
of the witnesses to the confessional statement did not support the
confession in its entirety, the entire confession should be brushed aside
as unreliable even though independent witness like the Village
Administrative Officer had supported the recording of conviction.
However, we have further taken note of the fact that the conviction of the
appellants is not based merely on the confessional statement but also on
other substantial evidence relied upon by the prosecution viz. recovery
of the body, post-mortem report matching with confessional statement,
evidence of other independent witness who corroborated the recording of
confessional statement in their presence and thus do not create doubt
about the credibility of the prosecution case so as to discard the same.
16. We thus do not find any infirmity in the judgment and order of
the High Court holding the appellants guilty and sentencing them
appropriately. Consequently, the appeal fails and is dismissed. The
appellants are on bail. Their bails bonds are cancelled and they be taken
into custody forthwith for serving out remaining part of the sentence.

………………………………….J.
(T.S. THAKUR)

 

………………………………….J.
(GYAN SUDHA MISRA)

New Delhi;
April 25, 2014
———————–
10

 

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