SAHADEVAN & Anr. v. STATE OF TAMIL NADU

SWATANTER KUMAR, J. 1. The present appeal is E 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. Kamala!, PW-2 was F 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, 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 H Neruparichal bus stand at about 10 p.m. on 9th July, 2002, he G SAHADEVAN & ANR. v. STATE OF TAMIL NADU [SWATANTER KUMAR, J.] 377 a in A driving TVS moped saw Sahadevan 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 8 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 C 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 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 D 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. E F G

#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 his office and told him that deceased Loganathan was H 378 SUPREME COURT REPORTS [2012] 4 S.C.R. A 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 8 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. C

#6. PW9, on the basis of the confessional statements, Ext.P-5 to P-7, recovered M0-6 (TVS moped TN 38 7344), M0-7 (bottle smelling of kerosene). and M0-8 (matchbox). PW- 9 then sent the MOs for forensic examination along with Ext. P-15, the requisition therefor. Subsequently, PW-9 was relieved D of his duties and PW-10 completed the investigation of the case and filed the chargesheet against all the three accused under Section 1208 and Section 302 IPC. All the accused were tried in accordance with law. E

#7. We may notice here that in their statement under Section 313 Cr.PC, the accused persons denied the incident, including 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. F 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 1208 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. G

#8. Aggrieved from the judgment of the trial court, the accused preferred an appeal before the High Court which H SAHADEVAN & ANR. v. STATE OF TAMIL NADU [SWATANTER KUMAR, J.] 379 came to be dismissed vide order dated 27th September, 2006 A 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. B

#10. The learned counsel appearing for these two appellants has advanced the following arguments while impugning the judgment under appeal :- (i) (ii) 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. 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. c D E F G H 380 SUPREME COURT REPORTS [2012] 4 S.C.R. A B c (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 D 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 E 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 proper appreciation of evidence, thus, has come to the right conclusion. F

#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. G 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 H SAHADEVAN & ANR. v. STATE OF TAMIL NADU [SWATANTER KUMAR, J.] 381 evidence, intends to base a conviction on an extra-judicial A 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 B to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

#13. Now, we may examine some judgments of this Court C dealing with this. aspect.

#14. In Ba/winder 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. 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 govJrning the admissibility and evidentiary value of an extra judicial confession, this Court in the case of State of Rajastha~; v. Raja Ram [(2003) 8 SCC 180] stated the principlE ..• a~ an D E F G H 382 SUPREME COURT REPORTS [2012] 4 S.C.R. B A 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 C 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 WB. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of D 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.

#89. A detailed confession which would otherwise be withir, 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." E F G

#19. Accepting the admissibility of the extra-judicial H confession, the Court in the case of Sansar Chand v. State of Rajasthan ((2010) 10 SCC 604] held that:- SAHADEVAN & ANR. v. STATE OF TAMIL NADU [SWATANTER KUMAR, J.] 383 "29. There is no absolute rule that an extra-judicial A 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 UP., Sivakumar v. State (SCC paras 40 and 41 : AIR B 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 C 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." D

#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 sec 740], held as under : E "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, F 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 G of the 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 H 384 SUPREME COURT REPORTS [2012) 4 S.C.R.