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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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