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  IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NOS.1691-1692 OF 2010  

KUSAL TOPPO AND ANOTHER …APPELLANTS  

            VERSUS  

STATE OF JHARKHAND   …RESPONDENT  

             O R D E R  

1. These appeals by special leave are directed against the  

judgment and order dated 12.1.2009 passed by the High Court  

of Judicature of Jharkhand at Ranchi in Criminal Appeal No.  

240 of 2002 with Criminal Appeal No. 302 of 2002.  

2. These appeals have been filed by Accused No.1 and Accused  

No.4 questioning the conviction and sentence passed by the  

trial Court on 17 and 18th May, 2002 wherein the accused were  

convicted for the offence under Section 392 and were  

sentenced to seven years’ rigorous imprisonment and fine of  

Rs.1000/- each and in default of payment, to undergo rigorous  

imprisonment for one year each and also convicted for the

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offence under Section 302 and sentenced to undergo rigorous  

imprisonment for life and a fine of Rs.5000/- each and in  

default of payment to undergo rigorous imprisonment for a  

term of 2 years each.  

3. The judgment passed by the trial Court was subsequently  

challenged before the High Court.  The High Court also  

confirmed the sentence and conviction passed by the trial  

Court.  

4. In the present case there were as many as five accused. A-5  

was acquitted by the trial Court itself. The other two accused  

A-2 and A-3 had filed Special leave Petition (Criminal) No(s).  

2572-2573 of 2009 against the judgment and order of the High  

Court, which were dismissed by this Court at the time of  

admission itself. In criminal cases, it is well settled that a  

dismissal of a SLP in limine, would neither mean that the lower  

court judgment stands affirmed nor the principle res judicata  

would be applicable [refer Kunhayammed and Anr. v. State  

of Kerala, AIR 2000 SC 2587; State of Punjab v. Devinder  

Pal Singh Bhullar, AIR 2012 SC 364]. Therefore, the  

dismissal of the SLP of the co-accused will not have any effect  

accordingly.

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5. In the instant special leave petitions filed by the accused A-1  

and A-4, leave was granted by this Court on 30.8.2010.  

6. We have heard learned counsel for the parties.  

7. The prosecution story in brief is that on 3.12.1999, Truck No.  

BR-24-M-8171 had gone to Balrampur having loaded the lac  

of one Adit Sah of Latehar. The truck was returning from  

Balrampur after unloading the lac in question on 4.12.1999  

and reached Ranchi at 4 P.M. The aforesaid truck had picked  

up its owner Sita Devi from Seva Sadan, Ranchi and proceeded  

for Latehar.  When the truck did not reach Latehar till the  

morning of 5/12/1999, PW-2, Binod Agrawal (the joint owner  

of the truck and brother-in-law of Sita Devi, and the informant  

in this case) tried to search for the truck; in the course of his  

search he went to the Line Hotel, owned by PW-1, Bindeshwar  

Sah, situated at Ranchi Road, Kuru where the truck usually  

used to stop for refreshment for its staff.  The informant learnt  

from the aforesaid hotel owner that his truck had stopped at  

the hotel on 4.12.1999 at about 6.45 p.m.  The driver, Suresh  

Singh @ Bulet Singh, and the Khalasi (i.e., cleaner of the  

truck), Jitendra Thakur, had taken four cups of special tea,  

one for their employer Sita Devi, two for themselves and one

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for a third person in the truck, but the third person did not  

take tea and the same was returned.  The driver was heard to  

say that A-2, Mahendra, the third person inside the truck,  

would not take tea.  Thereafter, the truck proceeded for its  

destination, having taken the owner Sita Devi, the Khalasi  

Jitendra Thakur, and the third person, Mahendra (apart from  

the driver himself).  The informant also came to know from the  

hotel owner that an unknown person aged about 25 years had  

also come to the hotel at 5.00 p.m. on 4.12.1999, who had  

enquired from the hotel owner whether  Suresh Singh @ Bulet  

Singh, the driver, had come to the hotel with the truck.  The  

hotel owner had replied to the unknown person that the truck  

had not reached yet.  Subsequently, the informant gathered  

information from others at Kuru that the truck had crossed  

Kuru Chowk for its destination (i.e. Latehar), but it was  

hijacked by some criminals near Kuru P.S. and taken away  

towards the forest.  He further came to know that the truck  

was lying abandoned in Aamjharia Valley with two dead bodies  

lying near the truck and one dead body of a woman lying inside  

the cabin of the truck.  On such information, he went to  

Aamjharia Valley and found the truck, where he found the  

dead body of Sita Devi inside the truck, with her hands tied

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and neck slit, and the bodies of the driver and Khalasi thrown  

outside. The informant then went to Kuru P.S. to lodge an FIR,  

but the police of Kuru P.S. did not entertain his information.  

He then went to Lohardaga to approach the S.P., who was not  

available, but the reader of the S.P. told him that the FIR had  

to be lodged in the Police Station in the jurisdiction of which  

the dead bodies had been recovered.  Therefore, the informant  

lodged the FIR at Chandwa Police Station on 7.12.1999 at 10  

A.M., which is the basis of the case.  

8. Mr. Annam D.N. Rao, learned Amicus Curiae appearing on  

behalf of the accused mainly contended that the trial Court as  

well as the High Court had convicted the accused by relying  

upon the extra-judicial confessions made by Mahendra Prasad  

and Chanchal Bhaskar (A-2 and A-3). Mr. Rao contended that  

the accused could not be convicted merely on the basis of  

extra-judicial confessions, relying upon the settled proposition  

of law that an extra-judicial confession is a weak piece of  

evidence, and an accused cannot be convicted on such basis  

in the absence of other reliable evidence establishing guilt. He  

placed reliance on the decisions of this Court to this effect in

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Gopal Sah v. State of Bihar1 and Pancho v. State of  

Haryana.2  

9. Learned counsel, while arguing, has taken us through the  

depositions of various witnesses.  PW-1 is Bindeshwar Sah, the  

hotel owner, who according to PW-2, Binod Agrawal, first  

revealed the information to him that the truck party had come  

to his hotel on the date of the incident, and left the place after  

taking some tea.  Based on the said information, PW-2 further  

inquired about the matter.  PW-2 also deposed that PW-1 had  

told him that A-2 Mahendra was inside the truck, and that A-

2 had confessed to him (i.e. PW-1) that the accused had  

committed the murder of the three persons and further  

committed theft of a gold bangle and chain belonging to Sita  

Devi, an amount of Rs. 2 Lac and a demand draft for Rs.  

32,000/-. PW-2 admitted so in his cross-examination as well  

as stated so before the police. At the time of trial, however, PW-

1, the owner of the Line Hotel, turned hostile. He denied saying  

anything to PW-2 as alleged.   

10. Thus, according to PW-2, A-2 made a confession to PW-1. In  

addition, the confessions of A-2 and A-3 were also recorded by  

                                                 1(2008) 17 SCC 128.  2(2011) 10 SCC 165.

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the police. As per the testimony of PW-6, the investigating  

officer in the case, on the basis of the confession of A-3, a rope  

was recovered from the place of occurrence.    

11. Learned counsel for the appellants contended that rope is a  

common material or thing which is available anywhere in the  

market and in every household.   

12. Apart from this, learned counsel for the State is unable to show  

any other material indicating the guilt of the appellants.    

13. Learned Counsel for the State argued in support of the  

impugned judgment.   

14. The evidence relating to the extra-judicial confession made by  

the accused Mahendra is found in two places in the evidence  

of PW-2, i.e., in paragraphs 8 and 27. If we read both the  

paragraphs, it is clear that PW-2 got the information from PW-

1 (the owner of the Line Hotel, Bindeshwar Sah) about the  

factum of confession made by the accused Mahendra before  

PW-1. In other words, PW-2 has not deposed in so many words  

and clearly that the accused Mahendra made a confession  

before him. On the other hand, it is the specific deposition of  

PW-2 that the accused Mahendra confessed before PW-1, and  

in turn PW-1 told about the same fact to PW-2. This means

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that the information received by PW-2 from PW-1 about the  

extra-judicial confession is hearsay, inasmuch as there is no  

confession made by the accused Mahendra before PW-2  

directly. Hence, such hearsay evidence of PW-2 relating to the  

so-called confession cannot be relied upon. Even otherwise,  

PW-1, who had allegedly informed PW-2 about the confession  

allegedly made before him by the accused Mahendra, has  

turned hostile. Thus, there is no supporting material to  

corroborate the evidence of PW-2 regarding the extra-judicial  

confession.   

15. However, the First Appellate Court as well as the High Court,  

probably relying upon the version of PW-2 in paragraphs 29 to  

30 of his deposition, concluded that the accused Mahendra did  

confess before PW-2 directly. Even if we take it that the  

accused Mahendra did confess before PW-2 directly, the same  

may not further or better the case of the prosecution,  

inasmuch as this is the solitary piece of material against the  

accused Mahendra, and that too in the form of an extra-

judicial confession.  

16. As argued by the learned amicus curiae appearing for the  

accused, an extra-judicial confession is a weak piece of

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evidence, and an accused cannot be convicted on its basis in  

the absence of other reliable evidence establishing the guilt of  

the accused. It will be pertinent to advert to the decisions relied  

upon by the learned amicus curiae at this juncture, i.e., Gopal  

Sah (supra) and Pancho (supra).  

17. In Gopal Sah (supra), the Court held that an extra-judicial  

confession is, on the face of it, a weak piece of evidence and  

should not be relied upon to record a conviction, in the absence  

of a chain of cogent circumstances. In Pancho (supra) as well,  

the Court refused to convict the accused on the basis of an  

extra-judicial confession, in the absence of other evidence of  

sterling  quality  on  record,  establishing   his  involvement. In  

the Pancho (supra), the Court discussed the evidentiary value  

of an extra-judicial confession, as laid down by a  

Constitutional Bench of this Court in Haricharan  

Kurmi v. State of Bihar.3In this case, referring to S. 3 and S.  

30 of the Indian Evidence Act, 1872, the Court came to the  

conclusion that an extra-judicial confession cannot be treated  

as a substantive piece of evidence against the co-accused,  

holding that the proper judicial approach is to use it only to  

                                                 3AIR 1964 SC 1184.

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strengthen the opinion formed by the Court after perusing  

other evidence placed on record. It is pertinent to refer to the  

observations of in Pancho (supra) in this regard-  

“26. In Haricharan Kurmi v. State of Bihar [AIR  1964 SC 1184 : (1964) 2 Cri LJ 344] the  Constitution Bench of this Court was again  considering the same question. The  Constitution Bench referred to Section 3 of the  Evidence Act, 1872 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 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”. (Haricharan case [AIR 1964 SC  1184])  

27. This Court in Haricharan case [AIR 1964 SC  1184 : (1964) 2 Cri LJ 344] 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

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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.  

28. This Court in Haricharan case [AIR 1964 SC  1184 : (1964) 2 Cri LJ 344] clarified that though  confession may be regarded as evidence in  generic sense because of the provisions of  Section 30 of the 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.”  

18. Furthermore, in Sahadevan v. State of T.N.,4 this Court  

culled out certain principles regarding the reliability of an extra  

judicial confession, which have also been relied upon in  

Jagroop Singh v. State of Punjab,5 Tejinder Singh v. State  

of Punjab,6 and Vijay Shankar v. State of Haryana.7 The  

                                                 4(2012) 6 SCC 403.  5(2012) 11 SCC 768.   6(2013) 12 SCC 503.  7(2015) 12 SCC 644.

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principles as stated in Sahadevan (supra) are reproduced  

below:  

“16. Upon a proper analysis of the abovereferred  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.”   

The proposition that extra judicial confessions are a weak type  

of evidence and should not be relied upon in the absence of  

corroborative evidence has also been affirmed by this Court in

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several other decisions, such as Pakkiriswamy v. State of  

Tamil Nadu,8 Makhan Sigh v. State of Punjab,9 Baldev  

Singh v. State of Punjab,10 and even recently in Satish v.  

State of Haryana.11  

19. Taking into consideration all the facts and position of law,  

discussed supra, we are of the opinion that the appellants  

herein cannot be convicted on the basis of only two extra-

judicial confessional statements of the co-accused which were  

not corroborated by any cogent or reliable evidence. Needless  

to say, that the confessions of A-2 and A-3 made before the  

police are inadmissible. Now coming to the limited aspect  

concerning appending weightage to their recovery of rope in  

furtherance of the statement of A-3, before the Police under  

Section 27 of Indian Evidence Act.  

20. The law under, Section 27, Indian Evidence Act is well settled  

now, wherein this court in Geejaganda Somaiah v. State of  

Karnataka, (2007) 9 SCC 315, has observed as under:  

“As the section is alleged to be frequently  misused by the police, the courts are required  to be vigilant about its application. The court  must ensure the credibility of evidence by police  

                                                 8(1997) 8 SCC 158.  9(1988) Supp SCC 526.  10(2009) 6 SCC 564.  11(2018) 11 SCC 300.

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because this provision is vulnerable to abuse. It  does not, however, mean that any statement  made in terms of the aforesaid section should be  seen with suspicion and it cannot be discarded  only on the ground that it was made to a police  officer during investigation. The court has to be  cautious that no effort is made by the  prosecution to make out a statement of the  accused with a simple case of recovery as a case  of discovery of fact in order to attract the  provisions of Section 27 of the Evidence Act”  

21. The basic premise of Section 27 is to only partially lift the ban  

against admissibility of inculpatory statements made before  

police, if a fact is actually discovered in consequence of the  

information received from the accused. Such condition would  

afford some guarantee. We may additionally note that, the  

courts need to be vigilant while considering such evidences.  

This Court in multiple cases has reiterated the aforesaid  

principles under Section 27 of Indian Evidence Act and only  

utilized Section 27 for limited aspect concerning recovery [refer  

Pulukuri Kotayya v. King Emperor, 76 I.A. 65; Jaffar  

Hussain Dastagir v. State of Maharashtra, AIR 1970 SC  

1934]. As an additional safeguard we may note that reliance  

on certain observations made in certain precedents of this  

court without understanding the background of the case may  

not be sustainable. There is no gainsaying that it is only the

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ratio which has the precedential value and the same may not  

be extended to an obiter. As this Court being the final forum  

for appeal, we need to be cognizant of the fact that this Court  

generally considers only legal aspects relevant to the facts and  

circumstances of that case, without elaborately discussing the  

minute hyper-technicalities and factual intricacies involved in  

the trial.  

22. Coming back to factual aspects of this case, on the basis of the  

above confession of Chanchal Bhaskar [A-3], the only recovery  

which was made was one Rope, which was used in committing  

the offence, which the counsel rightly pointed, is a common  

material or thing which is available anywhere in the market or  

at every household. Further, we may note that, there is no  

investigation to link the rope recovered with the crime as no  

report concerning the forensic aspects of the fiber or any  

recovered strands are part of the record. Therefore, the major  

condition for application of Section 27 of the Evidence Act is  

not fulfilled. Accordingly, we cannot append any value to the  

confession of Chanchal Bhaskar [A-3].  

23. In light of the discussion above, we set aside the orders passed  

by the trial Court as well as by the High Court and acquit the

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accused from all charges and the appeals are, accordingly,  

allowed.  

24. We appreciate the assistance given by Mr. Annam D.N. Rao,  

learned Amicus Curiae in disposing of these appeals.  

........................J.                                           (N.V. RAMANA)  

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

                 (MOHAN M. SHANTANAGOUDAR)    

New Delhi,  

August 07, 2018