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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1405     OF     2008   

Sahadevan & Anr. …Appellants

Versus

State of Tamil Nadu …Respondent

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. The present appeal is directed against the judgment of the  

High Court dated 27th September, 2006 vide which the High  

Court affirmed the judgment of conviction and order of sentence  

dated 31st December, 2003 passed by the Trial Court.

2. The prosecution case is that Smt. Kamalal, PW-2 was  

married to one Yoganandan @ Loganathan, the deceased.   The  

accused No.1, Chandran is the brother of Kamalal (PW2).  

accused No.2, Sahadevan, and accused No. 3, Arul Murugan,

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were the friends of accused No.1.   PW2 was being ill-treated by  

Loganathan, her husband.  Being her brother, accused No.1  

thought that if he murdered Loganathan, life of his sister would  

be peaceful.  Thus, accused No.1 and his friends (the other two  

accused) entered into a criminal conspiracy to commit murder of  

Loganathan.  According to PW-5, Karuppuswamy, when he was  

talking to one Chinnaswamy at a three star hotel near the  

Neruparichal bus stand at about 10 p.m. on 9th July, 2002, he  

saw Sahadevan driving a TVS moped in  

Povmmanayakkampallayam road, while two other persons were  

sitting as pillion riders.   The vehicle was proceeding towards  

west.  After a while, one of them came back and again went in the  

same direction on the same vehicle.   PW-4, then saw the  

deceased, Yoganandan and accused No.1 going in the same  

direction on the TVS moped at about 2 p.m.  Again after some  

time, accused No.2 alone came back on the moped.   On 10th  

July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a dead  

body in the Pommanayakkanpallam Road, whereupon he went to  

PW-1, the Administrative Officer and informed him of that fact.  

PW-1, upon receiving this information, went to the spot and saw  

the dead body.   He then went to the Perumanallur Police Station  

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and made a complaint, Ext.P-1, to the Sub-Inspector of Police,  

Ganesan, PW-8.

3. Upon receipt of the complaint, the police registered a case  

being Crime No.150 of 2002 for an offence under Section 302 of  

the Indian Penal Code, 1860 (for short “the IPC”) against  

unknown accused.   The Investigating Officer, PW-9, proceeded to  

the scene of occurrence.  There he prepared observation  

Mahazar, Ext.P-2 and took photographs of the dead body.

4. Between 3 p.m. to 6 p.m., he conducted inquest over the  

dead body in the presence of Panchayatdars and witnesses and  

prepared the inquest report, Ext.P-13.  The Senior Civil Assistant  

Surgeon, PW7, attached to the Thirupur Government Hospital,  

after receiving the requisite information and the body, performed  

autopsy on the body of the deceased.  She noted the injuries on  

the body of the deceased and issued the post-mortem certificate,  

Ext. P-10, expressing the opinion that the deceased would have  

died 27 to 28 hours prior to autopsy.

5. It is further the case of the prosecution that on 14th July,  

2002, when PW-6, Muthurathinam, President of  

Kanakampalayam Panchayat was in his office along with one  

Shanmugasundaram, all the above-named three accused came to  3

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his office and told him that deceased Loganathan was the  

brother-in-law of accused No.1 and on account of family problem  

between accused No.1 and the deceased, they murdered  

Loganathan by strangulating him and after putting kerosene on  

him, set the body of the deceased afire.  The statements made by  

the accused were reduced to writing by PW-6 and after obtaining  

their signatures and putting his own signature thereon he  

handed over the report, Ext. P-4, to the Police Station along with  

the custody of the accused whereupon PW-9, the Investigating  

Officer arrested all the accused persons.   

6. PW9, on the basis of the confessional statements, Ext.P-5 to  

P-7, recovered MO-6 (TVS moped TN 38 7344), MO-7 (bottle  

smelling of kerosene) and MO-8 (matchbox).  PW-9 then sent the  

MOs for forensic examination along with Ext. P-15, the  

requisition therefor.    Subsequently, PW-9 was relieved of his  

duties and PW-10 completed the investigation of the case and  

filed the chargesheet against all the three accused under Section  

120B and Section 302 IPC.   All the accused were tried in  

accordance with law.

7. We may notice here that in their statement under Section  

313 Cr.PC, the accused persons denied the incident, including  

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the alleged extra-judicial confession made by them and also  

stated that they were falsely implicated in the case.   However, all  

the three accused chose not to lead any defence.  Finally, the  

prosecution examined as many as 10 witnesses and produced on  

record the documentary evidence.   The trial Court vide its  

judgment dated 31st December, 2003 acquitted all the accused  

for an offence under Section 120B IPC, however, it convicted all  

the three accused under Section 302 IPC and awarded them  

sentence of imprisonment for life and fine of Rs. 5,000/-, in  

default thereof, to undergo rigorous imprisonment for six  

months.

8. Aggrieved from the judgment of the trial court, the accused  

preferred an appeal before the High Court which came to be  

dismissed vide order dated 27th September, 2006 resulting in the  

filing of the present appeal.

9. Accused No.2, Sahadevan and accused No.3, Arul Murugan  

have preferred the present appeal.   Accused No.1, Chandran has  

not filed any appeal.

10. The learned counsel appearing for these two appellants has  

advanced the following arguments while impugning the judgment  

under appeal :- 5

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(i)  The case of the prosecution is solely based upon the extra-

judicial confession, which confession is neither reliable nor  

has been recorded in accordance with law.   This extra-judicial  

confession cannot form the basis of conviction of the  

appellants since it has no corroboration and when examined in  

light of the settled principles of law, it is inconsequential, thus,  

the accused are entitled to the benefit of doubt.  

(ii)In the present case, there is neither any eye-witness nor the  

prosecution has proved the complete chain of circumstances.  

The courts have erred in applying the theory of last seen  

together to return the finding of conviction against the  

accused.   There being no direct evidence of involvement of the  

appellants in the commission of the crime, the theory of last  

seen together could not be of any assistance to the case of the  

prosecution.

(iii) The recoveries alleged to have been made in furtherance to  

the confessional statements of the accused are inadmissible in  

evidence and, in any case, the objects recovered have no link  

with the commission of the crime and as such, it would be  

impermissible in law to use these recoveries against the  

accused for sustaining their conviction.

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(iv) The courts have failed to appreciate the medical and other  

evidence placed on record in its correct perspective.  There are  

serious contradictions in the medical and ocular evidence, as  

regards the time of the death of the deceased.   Once, the time  

of death of deceased is not established, the whole story of the  

prosecution falls to the ground.   

(v) According to the learned counsel for the appellants, an extra-

judicial confession, besides being inadmissible, is also a very  

weak piece of evidence and in a case of circumstantial  

evidence like the present, one cannot form a valid basis for  

returning the finding of guilt against the accused.    

11. To the contra, the learned counsel appearing for the State  

argued that the extra-judicial confession in the present case is  

admissible as it is duly corroborated by other prosecution  

evidence, and thus, the courts are fully justified in convicting the  

accused.  It is also contended that the present case is of  

circumstantial evidence and the prosecution has succeeded in  

establishing every circumstance of the chain of events that would  

fully support the view that the accused is guilty of the offence.  

The court while dealing with the judgment under appeal, upon  

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proper appreciation of evidence, thus, has come to the right  

conclusion.   

12. There is no doubt that in the present case, there is no eye-

witness.   It is a case based upon circumstantial evidence.   In  

case of circumstantial evidence, the onus lies upon the  

prosecution to prove the complete chain of events which shall  

undoubtedly point towards the guilt of the accused.  

Furthermore, in case of circumstantial evidence, where the  

prosecution relies upon an extra-judicial confession, the court  

has to examine the same with a greater degree of care and  

caution.   It is a settled principle of criminal jurisprudence that  

extra-judicial confession is a weak piece of evidence.   Wherever  

the Court, upon due appreciation of the entire prosecution  

evidence, intends to base a conviction on an extra-judicial  

confession, it must ensure that the same inspires confidence and  

is corroborated by other prosecution evidence.  If, however, the  

extra-judicial confession suffers from material discrepancies or  

inherent improbabilities and does not appear to be cogent as per  

the prosecution version, it may be difficult for the court to base a  

conviction on such a confession.   In such circumstances, the  

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court would be fully justified in ruling such evidence out of  

consideration.     

13. Now, we may examine some judgments of this Court dealing  

with this aspect.

14. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC  

259], this Court stated the principle that an extra-judicial  

confession, by its very nature is rather a weak type of evidence  

and requires appreciation with a great deal of care and caution.  

Where an extrajudicial confession is surrounded by suspicious  

circumstances, its credibility becomes doubtful and it loses its  

importance.

15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court  

held that it is well settled that it is a rule of caution where the  

court would generally look for an independent reliable  

corroboration before placing any reliance upon such extra-

judicial confession.    

16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the  

Court stated the dictum that there is no doubt that conviction  

can be based on extrajudicial confession, but it is well settled  

that in the very nature of things, it is a weak piece of evidence.  

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It is to be proved just like any other fact and the value thereof  

depends upon veracity of the witnesses to whom it is made.

17. While explaining the dimensions of the principles governing  

the admissibility and evidentiary value of an extra-judicial  

confession, this Court in the case of State of Rajasthan v. Raja  

Ram [(2003) 8 SCC 180] stated the principle that an extra-

judicial confession, if voluntary and true and made in a fit state  

of mind, can be relied upon by the court.  The confession will  

have to be proved like any other fact.  The value of evidence as to  

confession, like any other evidence, depends upon the veracity of  

the witness to whom it has been made.  The Court, further  

expressed the view that such a confession can be relied upon and  

conviction can be founded thereon if the evidence about the  

confession comes from the mouth of witnesses who appear to be  

unbiased, not even remotely inimical to the accused and in  

respect of whom nothing is brought out which may tend to  

indicate that he may have a motive of attributing an untruthful  

statement to the accused.

18. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12  

SCC 230], the Court, while holding the placing of reliance on  

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extra-judicial confession by the lower courts in absence of other  

corroborating material, as unjustified, observed:

“87. Confession ordinarily is admissible in  evidence. It is a relevant fact. It can be acted  upon. Confession may under certain  circumstances and subject to law laid down  by the superior judiciary from time to time  form the basis for conviction. It is, however,  trite that for the said purpose the court has  to satisfy itself in regard to: (i) voluntariness  of the confession; (ii) truthfulness of the  confession; (iii) corroboration.

XXX XXX XXX

89. A detailed confession which would  otherwise be within the special knowledge of  the accused may itself be not sufficient to  raise a presumption that confession is a  truthful one. Main features of a confession  are required to be verified. If it is not done,  no conviction can be based only on the sole  basis thereof.”

19. Accepting the admissibility of the extra-judicial confession,  

the Court in the case of Sansar Chand v. State of Rajasthan  

[(2010) 10 SCC 604] held that :-

“29. There is no absolute rule that an extra- judicial confession can never be the basis of  a conviction, although ordinarily an extra- judicial confession should be corroborated  by some other material. [Vide Thimma and  Thimma Raju v. State of Mysore, Mulk Raj  v. State of U.P., Sivakumar v. State (SCC  

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paras 40 and 41 : AIR paras 41 & 42), Shiva  Karam Payaswami Tewari v. State of  Maharashtra and Mohd. Azad v. State of  W.B.]

30. In the present case, the extra-judicial  confession by Balwan has been referred to  in the judgments of the learned Magistrate  and the Special Judge, and it has been  corroborated by the other material on  record. We are satisfied that the confession  was voluntary and was not the result of  inducement, threat or promise as  contemplated by Section 24 of the Evidence  Act, 1872.”

20. Dealing with the situation of retraction from the extra-

judicial confession made by an accused, the Court in the case of  

Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC  

740], held as under :

“It appears therefore, that the appellant has  retracted his confession.   When an extra- judicial confession is retracted by an  accused, there is no inflexible rule that the  court must invariably accept the retraction.  But at the same time it is unsafe for the  court to rely on the retracted confession,  unless, the court on a consideration of the  entire evidence comes to a definite  conclusion that the retracted confession is  true.”

21. Extra-judicial confession must be established to be true and  

made voluntarily and in a fit state of mind.  The words of the  

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witnesses must be clear, unambiguous and should clearly convey  

that the accused is the perpetrator of the crime.  The extra-

judicial confession can be accepted and can be the basis of  

conviction, if it passes the test of credibility.  The extra-judicial  

confession should inspire confidence and the court should find  

out whether there are other cogent circumstances on record to  

support it.   [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754]  

and Pancho v. State of Haryana [(2011) 10 SCC 165].

22. Upon a proper analysis of the above-referred 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.

The Principles  

(i) The extra-judicial confession is a weak evidence by itself.  

It has to be examined by the court with greater care and  

caution.

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(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.

23. Having stated the principles which may be kept in mind by  

the court while examining the acceptability and evidentiary value  

of the extra-judicial confession, we may now refer to the extra-

judicial confession, Ext. P-4, in the case before us.   This extra-

judicial confession is alleged to have been made by all the three  

accused to one Muthurathinam, PW-6.  The said Ext. P-4 reads  

as under:-

“I am the president of Kanakampalayam  today the 14.7.2002 at 9.30 in the morning,  when I was at my office along with loclite  

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Shanmugasundaram, a person named  Chandran aged 36 son of Muthu and resident  of Navakarai, Pooluvapatti along with  Sahadevan aged 27 s/o Pannerselvam having  a furniture by name Sri Priya agencies at  Boyampalayam Sri Nagar and one Arul  Murugan aged 23 s/o Krishnan, belonging to  Dindugal and going to printing work by  staying at pandian nagar came to my office  saying that he along with his friends  Sahadevan and Arulmurugan, on 08-07-02  his sisters husband Yoganathan @  Logananthan who was without going to work  and nor looking after the family and was  loitering hereunder an no way to look after his  sister Kamalal and her children and more  tortures from her husband and confessed to  her that her husband without going any work,  he is simply loitering hereunder and tried to  him to separate her from her husband.  Hence elimination is better than separation  and said his sisters life would be, peaceful, he  along with his friends Sahadevan and  Arulmurugan executed a friendly call to him  and told him that they would promised him a  job at Tirupur.   After 10 p.m. in the night,  when there was no traunt on the Neruperchial  Bommanaichenpalayam mud road Sahadevan  in his moped with Loganathan sit and also  made Arul Murugan to sit along with and  asked to halt at certain place and again  Sahadevan came in moped and he along with  kerosene and match box and went there and  parked the moped and were all 4 of them  talking enticing Loganathan with getting him  a job at Tirupur he with the towel which was  kept ready put around Loganathan’s neck and  he strangled by holding one end of the towel  and Arulmurugan strangling by the other end  of the towel.  Mean while Sahadevan bought  how Loganathan’s face and hand and started  face and since due to strangulation  

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Loganathan fainted and fell into the east side  of the ditch and suddenly and Chandran took  kerosene and matchbox from moped cover  which was kept ready, in order to avoid  identity burnt him and killed him and after  that they all 3 took the moped and they went  to Sahadevan house and parked the vehicle  and the same night they went out of station  and a return to Tirupur only yesterday.   They  came to know that the police are after then  they came to my house today and told me  what happened Shanmugasundram recorded  the above averments   of Chandran after that  bringing all 3 to you and present them before  you.”

24. As per the case of the prosecution, the deceased was  

murdered on 9th – 10th July, 2002.   The body of the deceased was  

taken into custody by the police on 10th July, 2002 itself.   The  

accused persons were residents of the same village and there is  

nothing on record to show that the Police made any serious  

attempt to search and arrest them.   The Investigating Officers,  

PW-9 and PW-10, have not stated in their statements that the  

accused persons were absconding.  Four days later, on 14th July,  

2002, the accused persons are alleged to have gone to the office  

of PW-6 to make the confession of having murdered the brother-

in-law of accused No.1.  Ext. P-4 is addressed to the police  

inspector.   If the accused were to make such a statement to the  

police itself, then what was the need for them to first go to PW-6.  

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However, an explanation is advanced on behalf of the State that  

the accused only signed the statement and it was PW-6 who then  

handed over Ext. P-4 to the police, along with the custody of the  

accused persons.    

25. Further, Ext. P-4 is stated to have been made by the  

accused persons to PW-6, in the presence of  

Shanmugasundaram.   The said person, for reasons best known  

to the prosecution, has not been examined by the prosecution to  

prove the recording of Ext. P-4 and to provide greater credence to  

this document.  

26. Moreover, in their statement under Section 313 CrPC, the  

accused have denied the very execution of Ext. P-4.   In order to  

examine the veracity of this document, the court essentially has  

to find out the correctness and corroboration of the facts stated  

in Ext. P-4 by other prosecution evidence.    In Ext. P-4, it is  

stated that the deceased ill-treated his wife, PW-2, Kamalal and  

that was the motive and, in fact, essentially the cause for the  

accused to murder the deceased.   The whole emphasis is upon  

the bitter relationship between the husband and wife.   The very  

basis of Ext. P-4 falls to the ground when one peruses the  

statement of Kamalal, PW-2.   In her statement, she has stated  

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that her husband was employed in a rolling mill and that there  

was no dispute between them.  Further, she has categorically  

stated that she had never stated anything with regard to dispute  

between her husband and accused No.1 to the police and that  

there was no property dispute amongst them.  Upon this, this  

witness was declared hostile by the prosecution with the leave of  

the court.  Even in her cross-examination, nothing could be  

brought out to establish the fact of alleged cruelties inflicted by  

the deceased upon her and there being any dispute between  

them.    

27. An attempt has been made on behalf of the prosecution to  

support its case by the statements of PW-4 and PW-5.   PW-4  

stated that he had seen Loganathan, who used to live opposite  

his house, going on a moped along with his wife’s brother  

Chandran at about 2 O’clock in the afternoon.  After knowing  

that there was a corpse lying at Nereuperichel, he went and saw  

the dead body.  It was that of Loganathan.   

28. PW5 also deposed that on 9th July, 2002, at about 10.00  

p.m., he had seen three persons going in a moped towards  

Bommanaickanpalayam road.  After sometime, only one person  

returned on the moped and again went towards west.  Thereafter,  

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those three persons returned.  He stated that he could not  

identify those three persons, if he saw them.  Out of the three, he  

knew only one person who drove the moped and that was  

accused No.2, Sahadevan.  Next day, upon hearing the news that  

there was a corpse lying, he went and saw it.  Since the face of  

the corpse was burnt, he could not identify him.   

29. The statement of these two witnesses is at variance with  

Exhibit P4 and hardly finds corroboration from other prosecution  

evidence and also suffers from discrepancies.  Thus, the contents  

of Exhibit P4 are belied by the prosecution evidences itself and,  

therefore, it is not safe for the Court to rely upon such extra-

judicial confession.  The various factors mentioned above bring  

out serious deficiencies in the veracity, credence and evidentiary  

value of Exhibit P4.  For the afore-recorded reasoning, we must  

disturb the finding of guilt recorded by the Trial Court while  

substantially relying upon Exhibit P4 as, in our opinion, Exhibit  

P4 has to be ruled out from the zone of consideration, which we  

hereby do.

30. The courts below, the Trial Court in particular, have laid  

some emphasis on the theory of last seen, while finding the  

accused guilty of the offence.  As far as PW5 is concerned, he  

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says that he only saw three persons going on the moped and he  

could not identify these persons.  PW4 stated that he had seen  

the deceased going on a moped with Chandran at about 2.00  

o’clock in the afternoon.  The time lag between the time at which  

this witness saw the accused and the deceased together and  

when the body of the deceased was found on the next day is  

considerably long.  According to PW4, he could identify  

Loganathan while, according to PW5, the face of the deceased  

was burnt and, therefore, he could not identify him.  Moreover,  

according to the doctor, PW7, the deceased had died about 27 to  

28 hours before the autopsy.  The autopsy, was admittedly,  

performed upon the deceased on 10th of July, at about 2 o’clock.  

That implies that the deceased would have died sometime during  

the morning of 9th July, while according to PW4, he had seen the  

deceased along with Chandran after 2 p.m. on 9th July, 2002.   

31. With the development of law, the theory of last seen has  

become a definite tool in the hands of the prosecution to  

establish the guilt of the accused.  This concept is also accepted  

in various judgments of this Court.  The Court has taken the  

consistent view that where the only circumstantial evidence  

taken resort to by the prosecution is that the accused and  

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deceased were last seen together, it may raise suspicion but it is  

not independently sufficient to lead to a finding of guilt.  In Arjun  

Marik v. State of Bihar [1994 Supp.(2) SCC 372], this Court took  

the view that the where the appellant was alleged to have gone to  

the house of one Sitaram in the evening of 19th July, 1985 and  

had stayed in the night at the house of deceased Sitaram, the  

evidence was very shaky and inconclusive.  Even if it was  

accepted that they were there, it would, at best, amount to be the  

evidence of the appellants having been last seen together with the  

deceased.  The Court further observed that it is settled law that  

the only circumstance of last seen will not complete the chain of  

circumstances to record a finding that it is consistent only with  

the hypothesis of guilt of the accused and, therefore, no  

conviction, on that basis alone, can be founded.

32. Even in the case of State of Karnataka v. M.V. Mahesh  

[(2003) 3 SCC 353], this Court held that merely being last seen  

together is not enough.  What has to be established in a case of  

this nature is definite evidence to indicate that the deceased had  

been done to death of which the respondent is or must be aware  

as also proximate to the time of being last seen together.  No  

such clinching evidence is put forth.  It is no doubt true that  

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even in the absence corpus delicti it is possible to establish in an  

appropriate case commission of murder on appropriate material  

being made available to the Court.

33. In the case of State of U.P. v. Satish [(2005) 3SCC 114], this  

Court had stated that the principle of last seen comes into play  

where the time gap between the point of time when the accused  

and the deceased were last seen alive and when the deceased is  

found dead is so small that possibility of any person other than  

the accused being the author of the crime becomes impossible.   

34. Undoubtedly, the last seen theory is an important event in  

the chain of circumstances that would completely establish  

and/or could point to the guilt of the accused with some  

certainty.  But this theory should be applied while taking into  

consideration the case of the prosecution in its entirety and  

keeping in mind the circumstances that precede and follow the  

point of being so last seen.   

35. The statement of PW5 does not indicate the time as to when  

he had seen the deceased and with which of the accused.  He  

expressed inability to even identify them.  PW4 though claims to  

have seen them but has given a time which itself is doubtful.  

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Even this cannot be stated with certainty that at that particular  

time the deceased was alive or dead.   

36. In light of the abovementioned contradictions and the  

uncertainty of evidence, we are unable to sustain the view taken  

by the High Court that on the theory of last seen, the accused  

can be convicted.  This fact is uncorroborated and suffers from  

apparent contradictions and discrepancies as well.   

RECOVERY

37. PW9, the Investigating Officer, after arresting accused No.2,  

Sahadevan, recorded his statement.  The accused stated that he  

had hidden kerosene bottle, a match box and TVS Moped bearing  

No.50 TN 38 7344 and could get them recovered.  He also stated  

that Chandran had taken him on that moped.  In furtherance to  

this statement of this accused and in presence of the witnesses  

at about 2.45 hours, the Investigating Officer recovered and  

seized MO6, the TVS moped, MO7,  bottle with kerosene odour  

and MO8, match box.  In his entire deposition, this witness had  

not stated that these were the articles which were used by the  

accused persons in the commission of the crime.  It was expected  

of the prosecution to establish a connection between the articles  

recovered and the incident or the crime, as alleged to have been  23

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committed.  According to the prosecution, kerosene oil was  

poured over the deceased and he was set on fire.  No kerosene  

was found on the body of the deceased or on the belongings, i.e.,  

clothing, chappal etc. of the deceased.  The witness to the  

confession statement, Shanmugasundram, was not examined.  

PW6 admitted before the Court that he did not see the house of  

the accused, Sahadevan.  In the case of State of Rajasthan v.  

Bhup Singh [(1997) 10 SCC 675], this Court observed the  

following as the conditions prescribed in Section 27 of the Indian  

Evidence Act, 1872 for unwrapping the cover of ban against  

admissibility of statement of accused to police (1) a fact should  

have been discovered in consequence of the information received  

from the accused; (2) he should have been accused of an offence;  

(3) he should have been in the custody of a police officer when he  

supplied the information; (4) the fact so discovered should have  

been deposed to by the witness.  The Court observed that if these  

conditions are satisfied, that part of the information given by the  

accused which led to such recovery gets denuded of the wrapper  

of prohibition and it becomes admissible in evidence.

38. In the present case, the recoveries have been effected upon  

the statement of the accused under Section 27 of the Evidence  

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Act.  These recoveries, in our view, were made in furtherance to  

the statement of the accused who were in police custody and in  

presence of independent witnesses.  It may be that one of them  

had not been examined but that, by itself, shall not vitiate the  

recovery or make the articles inadmissible in evidence.  The  

aspect which the Court has to consider in the present case is  

whether these recoveries have been made in accordance with law  

and whether they are admissible in evidence or not and most  

importantly the link with and effect of the same vis-a-vis the  

commission of the crime.  According to the post mortem report  

Ext.P-10 as well as the forensic report Ext.P-22, kerosene or its  

smell was neither found on the body nor the belongings of the  

deceased and, therefore, it creates a little doubt as to whether the  

recovered items were at all and actually used in the commission  

of crime.  However, as far as TVS moped, MO-6 is concerned,  

there is sufficient evidence to show that it was used by the  

accused but the other contradictions and discrepancies noted  

above overshadow this evidence and give advantage to the  

accused.  

39. Now, we would deal with the contention of the appellant  

that the prosecution has not been able to establish even the time  

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of death of the deceased.  According to the prosecution, the  

deceased had been murdered on 9th July, 2002 at about 11 p.m.  

but according to the post mortem report Exhibit P10, the  

deceased was murdered on 10th July, 2002, i.e. between 10 and  

11 a.m.  The post mortem report was recorded on 11th July, 2002  

at 2.00 p.m. stating that the deceased was murdered before 27 to  

28 hours.  Absence of kerosene oil on the body of the deceased  

and articles taken into custody from the body of the deceased,  

the contradictions in the statement of the witnesses,  the fact  

that PW2 has not supported the case of the prosecution and PW5  

not being able to even identify the accused, lend support to the  

arguments raised on behalf of the accused and create a dent in  

the story of the prosecution.  Not on any single ground, as  

discussed above, but in view of the cumulative effect of the above  

discussion on all the aspects, we are unable to sustain the  

judgment of the High Court.  In our opinion, the prosecution has  

failed to prove its case beyond reasonable doubt.

40. In view of our above discussion, the last question for  

consideration of the Court is as to what order, if any, is required  

to be made against the non-appealing accused, i.e., accused  

No.1, Chandran.  From the prosecution evidence, it is clear that  

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some role had been specifically assigned to the accused  

Chandran.  He is the brother-in-law of the deceased and is stated  

to have been last seen taking the deceased on the moped  

whereafter the deceased never returned.  In normal  

circumstances, the obvious result would be to leave the non-

appealing accused to undergo the punishment awarded to him in  

accordance with law.   But, where the Court finds that the entire  

case of the prosecution suffers from material contradictions, the  

most crucial evidence is not reliable, there are definite and  

material flaws in the case of the prosecution and the Police has  

failed to discharge its duties at different steps, in that event, it  

will be difficult for this Court to leave the non-appealing accused  

to his fate.  Under the Indian criminal jurisprudence, an accused  

is presumed to be innocent until proven guilty and his liberty can  

be curtailed by putting him under imprisonment by due process  

of law only.  If the entire case of the prosecution has been found  

to be unreliable and the prosecution, as a whole, has not been  

able to prove its case beyond reasonable doubt, then the benefit  

should accrue to all the accused persons and not merely to the  

accused who have preferred an appeal against the judgment of  

conviction.  In the case of Raja Ram v. State of Madhya Pradesh  

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[(1994) 2 SCC 568], this Court extended the benefit of conversion  

of sentence to all the accused, from that under Section 302 IPC  

to one under Section 304 IPC, including the non-appealing  

accused.  The Court held that in its opinion, the case of the non-

appealing accused was not really distinguisbable from other  

accused persons and it was appropriate that benefit of the  

judgment should also be extended to the non-appealing accused,  

Ram Sahai, in that case.  Again, in the case of Bijoy Singh v.  

State of Bihar [(2002) 9 SCC 147], this Court clearly stated the  

principle that it has set up a judicial precedent that where on  

evaluation of the case, the Court reaches the conclusion that no  

conviction of any accused is possible the benefit of that decision  

must be extended to the co-accused, similarly situated, though  

he has not challenged the order by way of an appeal.  In the case  

of Pawan Kumar v. State of Haryana [(2003) 11 SCC 241], while  

referring to the myth of the salutary powers exercisable by the  

Court under Article 142 of the Constitution for doing complete  

justice to the parties, the Court  opined that powers under Article  

136 of the Constitution can be exercised by it even suo motu and  

that the right to personal liberty guaranteed to the citizens, as  

enshrined under Article 21 of the Constitution, would be a factor  

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which can be considered by the Court in granting such reliefs.  

The Court held as under :

“17. Apart from the salutary powers  exercisable by this Court under Article 142 of  the Constitution for doing complete justice to  the parties, the powers under Article 136 of  the Constitution can be exercised by it in  favour of a party even suo motu when the  Court is satisfied that compelling grounds for  its exercise exist but it should be used very  sparingly with caution and circumspection  inasmuch as only the rarest of rare cases. One  of such grounds may be, as it exists like in the  present case, where this Court while  considering appeal of one of the accused  comes to the conclusion that conviction of  appealing as well as non-appealing accused  both was unwarranted. Upon the aforesaid  conclusion arrived at by the Apex Court of the  land, further detention of the non-appealing  accused, by virtue of the judgment rendered  by the High Court upholding his conviction,  being without any authority of law, infringes  upon the right to personal liberty guaranteed  to the citizen as enshrined under Article 21 of  the Constitution. In our view, in cases akin to  the present one, where there is either a  flagrant violation of mandatory provision of  any statute or any provision of the  Constitution, it is not that this Court has a  discretion to exercise its suo motu power but a  duty is enjoined upon it to exercise the same  by setting right the illegality in the judgment of  the High Court as it is well settled that  illegality should not be allowed to be  

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perpetuated and failure by this Court to  interfere with the same would amount to  allowing the illegality to be perpetuated. In  view of the foregoing discussion, we are of the  opinion that accused Balwinder Singh alias  Binder is also entitled to be extended the same  benefit which we are granting in favour of the  appellant.”

Similar view has also been expressed by this Court in the  

cases of Madhu v. State of Kerala [(2012) 2 SCC 399] and  

Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC 698].

41. It is very difficult to set any universal principle which could  

be applied to all cases irrespective of the facts, circumstances  

and the findings returned by the Court of competent jurisdiction.  

It will always depend upon the facts and circumstances of a given  

case.  Where the Court finds that the prosecution evidence  

suffers from serious contradictions, is unreliable, is ex facie  

neither cogent nor true and the prosecution has failed to  

discharge the established onus of proving the guilt of the accused  

beyond reasonable doubt, the Court will be well within its  

jurisdiction to return the finding of acquittal and even suo moto  

extend the benefit to a non-appealing accused as well, more so,  

where the Court even disbelieves the very occurrence of the crime  

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itself.  Of course, the role attributed to each of the accused and  

other attendant circumstances would be relevant considerations  

for the Court to apply its discretion judiciously.   There can be  

varied reasons for a non-appealing accused in not approaching  

the appellate Court.  If, for compelling and inevitable reasons,  

like lack of finances, absence of any person to pursue his remedy  

and lack of proper assistance in the jail, an accused is unable to  

file appeal, then it would amount to denial of access to justice to  

such accused.   The concept of fair trial would take within its  

ambit the right to be heard by the appellate Court.  It is hardly  

possible to believe that an accused would, out of choice, give up  

his right to appeal, especially in a crime where a sentence of  

imprisonment for life is prescribed and awarded.  Fairness in the  

administration of justice system and access to justice would be  

the relevant considerations for this Court to examine whether a  

non-appealing accused could or could not be extended the  

benefit of the judgment of acquittal.  The access to justice is an  

essential feature of administration of justice.  This is applicable  

with enhanced rigour to the criminal jurisprudence.  Where the  

court disbelieves the entire incident of the occurrence or where  

the role of the accused who has not appealed is identical to that  

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of the other appealing accused or where the ends of justice  

demand, the Court would not hesitate and, in fact, is duty  

bound, to dispense justice in accordance with law.   The powers  

of this Court, in terms of Articles 136 and 142 on the one hand  

and the rights of an accused under Article 21 of the Constitution  

on the other, are wide enough to deliver complete justice to the  

parties.  These powers are incapable of being curtailed by such  

technical aspects which would not help in attainment of justice  

in the opinion of the Court.  In light of the above principles, this  

Court is required to consider the effect of these judgments on the  

case of the non-appealing accused in the present case.   

42. In the present case, accused No.1, Chandran had been  

attributed the same role as the other two accused.  All the  

accused were stated to have murdered the deceased and burnt  

his body.  It was a case of circumstantial evidence where not only  

has the prosecution failed to prove all the facts and events to  

complete the chain of events pointing only towards the guilt of  

the accused but there are also definite discrepancies in the case  

of the prosecution, contradictions between the statements of the  

material witnesses and the most important piece of prosecution  

evidence, the extra-judicial confession, Exhibit P4, is found  

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entirely unreliable, not worthy of credence as well as the facts  

recorded in Exhibit P4 stand disproved by another prosecution  

witness herself, i.e., PW-2, who, in fact, has lost her husband.

43. For the reasons afore-recorded, while accepting the appeal  

of the accused-appellants, we also direct that the benefit of this  

judgment shall also stand extended to accused No.1, Chandran,  

who is in jail.  All the accused are acquitted of the charge under  

Section 302 IPC.  They be set at liberty forthwith.

…………………………….,J. [A.K. Patnaik]

…………………………….,J. [Swatanter Kumar]

New Delhi; May 8, 2012

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