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Wednesday, May 7, 2014

Extra Judicial Confession - Apex court held that 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.and further held that 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 independent witness like the Village Administrative Officer had supported the recording of conviction.= BASKARAN & ANR. ..Appellants Versus STATE OF TAMIL NADU ..Respondent = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41478

Extra Judicial Confession - Apex court held that 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.and further held that 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  independent   witness   like   the   Village Administrative  Officer   had  supported  the   recording   of   conviction.=


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  conviction
and sentence under Section 376 I.P.C. was maintained.=

It is no doubt true that this Court time  and  again   has  held
that an extra-judicial confession can be 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  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.

2014 (April. Part)http://judis.nic.in/supremecourt/filename=41478
  T.S. THAKUR, GYAN SUDHA MISRA 
                                                                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  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.
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.
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-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  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,  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 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
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 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  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)



                                                            ………………………………….J.
                                                          (GYAN SUDHA MISRA)

New Delhi;
April 25, 2014
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