BASKARAN Vs STATE OF TAMIL NADU
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: Crl.A. No.-000121-000121 / 2008
Diary number: 19957 / 2007
Advocates: S. GOWTHAMAN Vs
M. YOGESH KANNA
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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
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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. 2
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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.
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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-
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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 5
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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, 6
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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 7
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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 8
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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 9
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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 10
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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)
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………………………………….J. (GYAN SUDHA MISRA)
New Delhi; April 25, 2014
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