2025 INSC 147
SUPREME COURT OF INDIA
(HON’BLE ABHAY
S. OKA, J. AND HON’BLE UJJAL BHUYAN, JJ.)
RAMU APPA MAHAPATAR
Petitioner
VERSUS
STATE OF MAHARASHTRA
Respondent
Criminal
Appeal No. 608 OF 2013-Decided on 04-02-2025
Criminal, Murder
(A) Penal
Code, 1860, Section 302 – Murder – Circumstantial evidence – Death caused of
wife - Extra judicial confession - Confession made by the accused before PW-1,
PW-3, PW-4 and PW-6 - PW-3 in his cross- examination was quite categorical
in deposing that he found the accused to be in a confused state of mind - This
factum has also come on record in the testimony of the other witnesses before
whom such confession was made -Thus, the accused was not in a fit state of mind
when he made the extra-judicial confession before PW-3 - That apart, there were
no blood stains on the clothes worn by the accused; not to speak of any such
blood samples matching with the blood of the deceased - While various articles
were seized from the place of occurrence, there was no recovery of any
blood-stained clothes - There is no evidence on record that the grinding stone
was recovered or that there were any blood stains on the recovered stick, not
to speak of such blood stains matching the blood of the deceased - Find the
conduct of the accused to be quite strange; instead of confessing his guilt before
the police or any other authority, he first goes to PW-1, the landlord, and
tells him about the death of ‘M’; further telling him that he was on his way to
the residence of the brother of ‘M’ (PW-3) to inform him about the development
- He goes to the residence of PW-3 alongwith his son in a rickshaw and tells
PW-3 about the death of ‘M’ following assault on her by him - This he stated to
PW-3 before PW-4 and PW-6 - What is more strange is the reaction or
non-reaction of PW-3 when the accused confessed before him that he had killed
his sister ‘M’ - This is not at all a normal behaviour of a brother - He would
have certainly reacted strongly when he heard the accused saying that he had
killed his sister - Instead of any such reaction, as per the prosecution case,
PW-3 accompanied the accused back to his residence - Further, PW-4 stated in
her cross-examination that she did not talk with the accused directly but came
to know about the incident - This clearly puts her testimony under a cloud -
There is a clear material omission in the cross-examination of PW-3 - According
to the testimony of PW-3, he had stated before the police that the accused had
told him that he had assaulted ‘M’ with a grinding stone and had killed her but
the same was not recorded by the police in his statement under Section
161 Cr.P.C. - Similarly, PW-6 in his deposition stated that he had told
the police that the accused had told (PW-3) in his presence that he had a
quarrel with ‘M’ in the night but the police did not record in his statement
under Section 161 Cr.P.C. – Held that not only the extra- judicial
confession of the accused lacks credibility as PW-3 is clearly on record
stating that the accused was in a confused state of mind when he confessed
before him, the testimonies of PW-3 and PW-6 suffer from material omission -
Their statements made under Section 161 Cr.P.C. are at variance with
their evidence in court regarding the confession made by the accused before
PW-3 - It would be wholly unsafe to sustain the conviction of the
appellant based on such weak circumstantial evidence which on the top of it
lack credibility - Appellant must get the benefit of doubt - Conviction and
sentence of the appellant passed by the Sessions Judge as affirmed by the High
Court liable to be set aside and quashed.
(Para 20, 21, 24 and
25)
(B)
Evidence Act, 1872, Section 24 and 27 – Evidence - Extra judicial confession – Admissibility in
evidence – Evidentiary value -
Principles which would make an extra-judicial confession an admissible piece of
evidence capable of forming the basis of conviction of an accused summed up as
follow:
(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.
(Para
19.2)
JUDGMENT
Ujjal Bhuyan, J. :- This appeal by
special leave is directed against the judgment and order dated 02.12.2010
passed by the High Court of Bombay at Bombay (High Court) in Criminal Appeal
No. 252 of 2005 (Ramu Appa Mahapatar Vs. State of Maharashtra) whereby the High
Court dismissed Criminal Appeal No. 252 of 2005 filed by the appellant.
2.
Be it stated that the aforesaid criminal appeal was preferred against the
judgment and order dated 15.10.2004 passed by the First Ad-hoc Additional
District and Sessions Judge, Thane (Sessions Judge) in Sessions Case No.
52 of 2004 whereby and where under appellant was convicted under Section
302 of the Indian Penal Code, 1861 (IPC) and sentenced to suffer rigorous
imprisonment (RI) for life and to pay fine of Rs. 1,000/-, in default to suffer
RI for 3 months.
3.
Prosecution case in brief is that appellant lived with deceased Manda; it was a
live-in relationship. Both of them were living in a chawl of PW-1 Ravinder Gopal
Jadhav, who was the landlord. Appellant informed PW-1 that his wife had expired
and that he was going to her parents’ house at Dipchale village to inform them.
Thereafter, appellant alongwith his son went to Dipchale village where
appellant met the brother of the deceased, Bhagwan i.e. PW-3. Appellant told
PW-3 in the presence of Shankar PW-6, Pandhari PW-5 and Chanda Bai PW-4 that
there was a quarrel between him and Manda following which he had assaulted
Manda who succumbed to the injuries.
3.1.
Before the appellant could come back to his village Kudus alongwith the
relatives of the deceased, PW-1 had already opened the door of the house which
was bolted from outside. On opening of the door PW-1 noticed that Manda was
lying dead with multiple bleeding injuries. Her mangalsutra and glass
bangles were broken; some of the household articles were strewn around on
the ground. When appellant reached the place of incident along with the
relatives of the deceased Manda, PW-1 enquired from him about the incident. At
that stage, appellant told PW-1 that deceased Manda had suspected that he
(appellant) was having illicit relation with some other woman. This resulted in
a quarrel in the course of which appellant had assaulted Manda with the help of
a grinding stone and a stick.
3.2.
PW-1 then lodged First Information Report (FIR) before the police station
whereafter offence under Section 302 IPC was registered against the
appellant.
3.3.
Investigating officer carried out the investigation in the course of which he
drew inquest panchanama, spot panchanama and made seizure of various articles
from the place of incident. Appellant was arrested. The weapon of assault was
seized. On completion of investigation, chargesheet was filed against the
appellant charging him for committing an offence punishable under Section
302 IPC.
4.
Learned Sessions Judge read over and explained the charge to the appellant to
which he pleaded not guilty and claimed to be tried. To prove its case,
prosecution examined 10 witnesses. It was a case of circumstantial
evidence. Prosecution relied upon the extra-judicial confession of the
appellant made before PW-1 Ravindra, PW-3 Bhagwan, PW-4 Chandabai and PW-6
Shankar. After considering the evidence on record, learned Sessions Judge vide
the judgment and order dated 15.10.2004 convicted the appellant
under Section 302 IPC and sentenced him to undergo RI for life and
also to pay fine of Rs. 1,000/-, in default to suffer RI for another 3 months.
5.
Aggrieved by the aforesaid conviction and sentence, appellant preferred appeal
before the High Court being Criminal Appeal No. 252 of 2005. By the judgment
and order dated 02.12.2010 (impugned judgment), High Court dismissed the appeal
of the appellant. Consequently, conviction and sentence of the appellant have
been affirmed.
6.
This Court by order dated 21.09.2012 had issued notice in the related petition
for special leave to appeal (criminal). Leave was granted vide the order dated
15.04.2013. Hence, the present appeal.
7.
Learned counsel for the appellant has taken us to the evidence of PW-1, PW-3,
PW-4 and PW-6 and submits that the extra-judicial confession allegedly made by
the appellant before the above witnesses could not be accepted as a valid
piece of evidence. Extra-judicial confession itself is a weak piece of
circumstantial evidence. From the testimony of the above witnesses, it is
clearly evident that no credence could be given to the theory of extra-judicial
confession. Such confession does not inspire any confidence. Beyond the
extra-judicial confession, there was no material on record to link the
appellant with the death of the deceased. Learned trial court as well as the
High Court had erred in placing reliance on the so-called extra-judicial
confessions and basing the conviction of the appellant on such evidence. He,
therefore, submits that conviction of the appellant is wholly unsustainable and
liable to be set aside. Resultantly, the appeal should be allowed.
8.
Per contra, learned counsel for the respondent supports the impugned judgment
of the High Court. According to him, there is no reason to disbelieve the
evidence of PWs 1, 3, 4 and 6. Therefore, the trial court was justified in
convicting the appellant on the basis of confessional statement made by the
appellant before the above witnesses. High Court had rightly affirmed such
conviction and sentence of the learned Sessions Judge. He submits that
there is no case for interference with the concurrent findings. Therefore, the
criminal appeal is liable to be dismissed.
9.
Submissions made by learned counsel for the parties have received the due
consideration of the Court.
10.
PW-1 is the informant Ravindra; he is the owner of the chawl in which accused
used to stay as the tenant along with his ‘wife’ and son. On 21.03.2003 at
about 06:15 AM, accused came to the residence of PW-1 along with his son and
informed PW-1 that his wife had expired. Thereafter, the accused went to the
house of the parents of his wife to call her relatives. PW-1 stated that he had
gone to the house of the accused along with his brother and found that it was
bolted from outside. Alongwith his brother Shyam Rao Gopal Jadhav, PW-1 opened
the door and saw that wife of the accused was lying dead on the floor in a pool
of blood.
10.1.
Accused brought the brother of the deceased and 4/5 persons. They also saw the
dead body. At that stage, PW-1 and his brother enquired with the accused who
told them that he had assaulted the deceased with a grinding stone.
10.2.
According to PW-1, he went to the police station and lodged the first
information which he proved in the court alongwith its contents.
10.3.
In cross-examination, he stated that the accused had only told him that his
wife had expired. He had talked with the accused for about five minutes.
Accused told him that he was going to call her relatives.
10.4.
PW-1 denied the suggestion that accused was in a confused state of mind. He
stated that he did not feel it necessary to inform the police immediately. He
lodged the information between 12 noon to 12:15 PM. He also denied the
suggestion that the accused had told him that some people had come in the night
and had assaulted him and his wife where after they ran away. He further denied
the suggestion that accused had told him that somebody had killed his wife and
had also assaulted him.
11.
PW-3 is Bhagwan. He is the brother of the deceased Manda. On 21.09.2003 at
07:30 AM, he was sitting alongwith Maruti, Pandu Ram Thorat and Shankar Rama
Bhoye in front of his house. At that time, accused came alongwith his son
Kiran. He told them that there was a quarrel between him and deceased Manda
because of which he had assaulted Manda. As a result of the injuries
sustained, she died. Hearing this, PW-3 along with Maruti, Pandu Ram Thorat and
Shankar Rama Bhoye went with the accused to his village.
11.1.
When they reached the house of the accused, they found that the landlord (PW-1)
was present there. They saw Manda lying dead in a pool of blood. She had
injuries on her head, forehead and face. Her saree was soaked in blood and food
was strewn around. Accused told them that he had assaulted the deceased with a
grinding stone and a wooden stick. Thereafter, they alongwith the landlord
(PW-1) went to the police station.
11.2.
In his cross-examination, he stated that the accused and the deceased were not
married but were staying together. The deceased used to complain to him that
accused was beating her.
11.3.
Accused told PW-3 and the others that Manda had expired whereupon he was asked
as to how she had expired. Though Manda was the younger sister of PW-3, he did
not ask the accused whether any complaint was lodged with the police. Maruti
Thorat and Pandu Ram Thorat, who are the maternal uncles of PW-3, were present
when PW-3 made enquiries with the accused. He had told his maternal uncles
Maruti and Pandu Ram to handover the accused to the police.
11.4.
PW-3 denied the suggestion that he was not sure as to whether the accused was
speaking lies. Since he was to verify as to whether Manda had died, therefore
they did not handover the accused to the police. PW-3 clearly stated that when
the accused came, he was in a confused state of mind and he did not take tea.
His clothes were not torn or blood stained. Accused had brought one mini door
rickshaw and in that, PW-3 and the others went to his house. According to PW-3,
he had stated before the police that accused had told him that he had assaulted
Manda with a grinding stone and had killed her but did not know why it was not
written.
11.5.
PW-3 stated that they reached the house of the accused around 10:00 AM and
thereafter they alongwith the landlord went to the police station to lodge
complaint. He denied the suggestion that the accused had never told him about
his quarrel with his wife and that he had assaulted her because of which she
died. He also denied the suggestion that accused had told him that in the
night, some thieves had come and that they had assaulted him and Manda.
12.
Chandabai is PW-4. She is the wife of PW-3. According to her, on 21.09.2003 in
the morning, her husband was chatting with Shankar, Maruti and Pandu Ram.
Meanwhile, the accused came there alongwith his son Kiran and told them
that he had quarrelled with Manda because of which he had assaulted her and she
died. Leaving behind his son Kiran with PW-4, accused alongwith husband of PW-4
i.e. PW-3 and others went to Kudus i.e. the village of the accused.
12.1.
In her cross-examination, she stated that she was residing alongwith her
husband PW-3, their three children and now with Kiran, son of the accused. On
the day of the incident, her husband PW-3 was sitting outside their home after
his breakfast. She stated that she did not directly talk with the accused but
came to know about the incident. She denied the suggestion that she only came
to know about the incident when her husband PW-3 told her that Manda was
assaulted. She denied the suggestion that accused had told her that on that
fateful night, 3/4 persons entered their house and had assaulted Manda when the
accused ran away along with his son from the house. She further denied the
suggestion that in the morning, accused had come and found that Manda had died
and therefore he informed the landlord and thereafter to PW-4 and others.
12.2.
She denied the suggestion that the accused also had injuries and that his
clothes were torn.
13.
PW-6 Shankar was sitting on the steps of the house of Bhagwan i.e. PW-3 in the
morning of 21.09.2003 alongwith Bhagwan, Maruti and Pandu Ram. Accused came
there at about 07:30 AM. He had come in a rickshaw alongwith his son. Accused
told Bhagwan that he had quarrelled with Manda during which he had assaulted
her and that she had died.
13.1.
PW-6 stated that son of the accused was kept with the wife of Bhagwan whereafter
they all went to the residence of the accused at Kudus. In the house of the
accused, they saw that Manda had already expired. She had injuries on her
forehead, head and back. They also saw that bangles and mangal sutra were
broken and that there was splattering of blood.
13.2.
In his cross-examination, he stated that accused was with them for about half
an hour to 45 minutes. He did not know the accused prior to that date. He
denied the suggestion that the clothes of the accused were torn and that the accused
was in a confused state of mind.
13.3.
PW-6 further deposed that he had told the police that accused had told Bhagwan
in their presence that he had a quarrel with Manda in the night but he did not
know why it was not written that accused had told so to Bhagwan in his
statement by the police.
13.4.
PW-6 denied the suggestion that the accused had told them that in the night,
3/4 drunk persons had entered their house whereafter they had assaulted him and
when they were about to assault his son, he ran away with his son.
14.
The above four are the witnesses who had deposed that the accused had stated
before the informant (PW-1) and PW-3 that he had a quarrel with Manda because
of which he assaulted her with a grinding stone and a stick following which she
died. There is no dispute about the multiple injuries seen on the body of the
deceased or the homicidal nature of the death of the deceased. Question for
consideration is whether on the strength of the evidence of the above four
witnesses, the accused can be linked with the offence and as to whether it can
be said that the charge against the accused of committing murder of the
deceased stood conclusively proved beyond all reasonable doubt?
15.
Before we analyse the evidence of the above witnesses, it is necessary to
briefly examine the law relating to extra-judicial confession as the present is
a case of extra-judicial confession allegedly made by the accused before
PW-1 and PW-3 which were endorsed by PW-4 and PW-6.
16.
Extra-judicial confession of an offence made by the accused before a witness is
one of the several instances of circumstantial evidence; there are other
circumstances, such as, the theory of last seen together; conduct of the
accused before or immediately after the incident; human blood being found on
the clothes or person of the accused which matches with that of the accused;
leading to discovery, recovery of weapon etc. As we know, circumstantial
evidence is not direct to the point in issue but consists of evidence of
various other facts which are so closely associated with the fact in issue that
taken together, they form a chain of circumstances from which the existence of
the principal fact can be legally inferred or presumed. The chain must be complete
and each fact forming part of the chain must be proved. It has been
consistently laid down by this Court that where a case rests squarely
on circumstantial evidence, inference of guilt can be justified only when all
the incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. The circumstances
would not only have to be proved beyond reasonable doubt, those would also
have to be shown to be closely connected with the principal fact sought to
be inferred from those circumstances. All these circumstances should be
complete and there should be no gap left in the chain of evidence. The proved
circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence. The circumstances taken
cumulatively must be so complete that there is no escape from the conclusion
that within all human probability the crime was committed by the accused and
none else. While there is no doubt that conviction can be based solely on
circumstantial evidence but great care must be taken in evaluating
circumstantial evidence. If the evidence relied upon is reasonably capable of
two inferences, the one in favour of the accused must be accepted.
17. In State
of Rajasthan Vs. Raja Ram[(2003) 8 SCC
180] , this Court explained the concept of extra-judicial confession.
Confession may be divided into two classes i.e. judicial and extra-judicial.
Judicial confessions are those which are made before a magistrate or a court in
the course of judicial proceedings. Extra-judicial confessions are those which
are made by the party elsewhere than before a magistrate or a court.
Extra-judicial confessions are generally those that are made by a party
before a private individual who may be a judicial officer also in his private
capacity. As to extra-judicial confessions, two questions arise: firstly,
whether they are made voluntarily and secondly, are they true? If the court is
of the opinion that the confession was not made voluntarily but was a result of
an inducement, threat or promise, it would not be acted upon. It follows that a
confession would be voluntary if it is made by the accused in a fit state of
mind and if it is not caused by any inducement, threat or promise having
reference to the charge against him proceeding from a person in authority.
Whether or not the confession was voluntary would depend upon the facts and
circumstances of each case judged in the light of Section 24 of the
Indian Evidence Act, 1872 (briefly ‘the Evidence Act’ hereinafter). The
law is clear that a confession cannot be used against an accused person unless
the court is satisfied that it was voluntary. At that stage, the question
whether it is true or false does not arise. If the facts and circumstances
surrounding the making of a confession appear to cast a doubt on the veracity
and voluntariness of the confession, the court may refuse to act upon the
confession even if it is admissible in evidence. The question whether a
confession is voluntary or not is always a question of fact. A free and
voluntary confession is deserving of the highest credit because it is presumed
to flow from the highest sense of guilt.
17.1.
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 the evidence as to confession like any other
evidence depends upon the reliability of the witness to whom it is made and who
gives the evidence. Extra-judicial confession can be relied upon and conviction
can be based thereon if the evidence about the confession comes from a witness
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. The words
spoken by the witness should be clear, unambiguous and unmistakenly convey that
the accused is the perpetrator of the crime and that nothing is omitted by the
witness which may militate against it. After subjecting the evidence of the
witness to a rigorous test on the touchstone of credibility, the extra-judicial
confession can be accepted and can be the basis of a conviction if it passes
the test of credibility.
17.2.
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. The requirement of corroboration is a matter of
prudence and not an invariable rule of law.
18. In Sansar
Chand Vs. State of Rajasthan[(2010) 10
SCC 604], this Court accepted the admissibility of extra-judicial
confession and held that 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.
19.
Evidentiary value of an extra-judicial confession was again examined in detail
by this Court in Sahadevan Vs. State of Tamil Nadu[(2012) 6 SCC 403] . That was also a case where conviction was
based on extra-judicial confession. This Court held that in a case based on
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. That apart, in a 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. An extra-judicial confession,
if voluntary and true and made in a fit state of mind can be relied upon by the
court. However, the confession will have to be proved like any other fact. The
value of the evidence as to confession like any other evidence depends upon the
veracity of the witness to whom it has been made.
19.1.
This Court acknowledged that extra-judicial confession is a weak piece of
evidence. Wherever the court 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 the extra-judicial confession
suffers from material discrepancies or inherent improbabilities and does not
appear to be cogent, such evidence should not be considered. This Court held as
follows:-
14. 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 court would be fully justified in ruling such evidence out
of consideration.
19.2.
Upon an indepth analysis of judicial precedents, this Court
in Sahadevan (supra) summed up the principles which would make an
extra-judicial confession an admissible piece of evidence capable of forming
the basis of conviction of an 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.
20.
Having surveyed the principles governing the acceptability and evidentiary
value of an extra-judicial confession, we may now advert to such confession
made by the accused before PW-1, PW-3, PW-4 and PW-6. It is on record that PW-3
in his cross- examination was quite categorical in deposing that he found
the accused to be in a confused state of mind. This factum has also come on
record in the testimony of the other witnesses before whom such confession was
made. In other words, the accused was not in a fit state of mind when he made
the extra-judicial confession before PW-3. That apart, there were no blood
stains on the clothes worn by the accused; not to speak of any such blood
samples matching with the blood of the deceased. While various articles were
seized from the place of occurrence, there was no recovery of any blood-stained
clothes. There is no evidence on record that the grinding stone was recovered
or that there were any blood stains on the recovered stick, not to speak of
such blood stains matching the blood of the deceased. Moreover, we find the
conduct of the accused to be quite strange; instead of confessing his guilt
before the police or any other authority, he first goes to PW-1, the landlord,
and tells him about the death of Manda; further telling him that he was on his
way to the residence of the brother of Manda (PW-3) to inform him about the
development. He goes to the residence of PW-3 alongwith his son in a rickshaw
and tells PW-3 about the death of Manda following assault on her by him. This
he stated to PW-3 before PW-4 and PW-6. What is more strange is the
reaction or non-reaction of PW-3 when the accused confessed before him that he
had killed his sister Manda. This is not at all a normal behaviour of a
brother. He would have certainly reacted strongly when he heard the accused
saying that he had killed his sister. Instead of any such reaction, as per the
prosecution case, PW-3 accompanied the accused back to his residence. Further,
PW-4 stated in her cross-examination that she did not talk with the accused
directly but came to know about the incident. This clearly puts her testimony
under a cloud.
21.
There is one more aspect which we would like to flag off. From the evidence on
record, we find that there is a clear material omission in the
cross-examination of PW-3. According to the testimony of PW-3, he had stated
before the police that the accused had told him that he had assaulted Manda
with a grinding stone and had killed her but the same was not recorded by the
police in his statement under Section 161 of the Code of Criminal
Procedure, 1973 (Cr.P.C.). Similarly, PW-6 in his deposition stated that he had
told the police that the accused had told Bhagwan (PW-3) in his presence that
he had a quarrel with Manda in the night but the police did not record in his
statement under Section 161 Cr.P.C.
22.
From the above, it is evident that not only the extra- judicial confession of
the accused lacks credibility as PW-3 is clearly on record stating that the
accused was in a confused state of mind when he confessed before him, the
testimonies of PW-3 and PW-6 suffer from material omission. Their statements
made under Section 161 Cr.P.C. are at variance with their evidence in
court regarding the confession made by the accused before PW-3. This Court
in Alauddin Vs. State of Assam[(2024)
SCC Online SC 760] explained the context in which an omission occurs
and when such an omission amounts to a contradiction. In the light of the
Explanation to Section 162 of the Cr.P.C., this Court held as
follows:
7. When the two
statements cannot stand together, they become contradictory statements. When a
witness makes a statement in his evidence before the court which is
inconsistent with what he has stated in his statement recorded by the police,
there is a contradiction. When a prosecution witness whose statement
under Section 161(1) or Section 164 of CrPC has been
recorded states factual aspects before the court which he has not stated in his
prior statement recorded under Section 161(1) or Section
164 of CrPC, it is said that there is an omission. There will be an
omission if the witness has omitted to state a fact in his statement recorded
by the police, which he states before the court in his evidence. The
Explanation to Section 162 CrPC indicates that an omission may amount
to a contradiction when it is significant and relevant. Thus, every omission is
not a contradiction. It becomes a contradiction provided it satisfies the
test laid down in the Explanation under Section 162. Therefore,
when an omission becomes a contradiction, the procedure provided in the proviso
to sub-Section (1) of Section 162 must be followed for contradicting
witnesses in the cross-examination.
23.
As observed above, the testimony of the prosecution witnesses suffers from
serious lack of credibility and also hit by contradictions which strike at the
very root of the prosecution case. No corroborating circumstances have been
brought on record by the prosecution.
24.
No doubt there is a strong suspicion against the appellant and the needle of
suspicion qua the death of Manda points towards him but as is the settled
jurisprudence of this country, suspicion howsoever strong cannot take the place
of hard evidence. The evidence on the basis of which the prosecution seeks
conviction of the accused i.e. extra-judicial confession made before the above
witnesses lack credibility and hence cannot be relied upon. Besides, the
evidence suffers from material contradiction. Therefore, it would be wholly
unsafe to sustain the conviction of the appellant based on such weak
circumstantial evidence which on the top of it lack credibility.
25.
For the aforesaid reasons, we are of the view that the appellant must get the
benefit of doubt. In view of the above, the conviction and sentence of the
appellant vide the judgment and order dated 15.10.2004 passed by the Sessions
Judge in Sessions Case No. 52 of 2004 as affirmed by the High Court vide the
judgment and order dated 02.12.2010 passed in Criminal Appeal No. 252 of 2005,
are hereby set aside and quashed. Since the appellant is in detention, he shall
be released from custody forthwith if not required in any other case.
26.
Criminal appeal is accordingly allowed.
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