Subramanya vs State of Karnataka

Extra Judicial Confession – s.30 – Evidentiary value of – Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence – 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 – Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like in the present case. Discovery Statement – s.27 – Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon – He could have derived knowledge of the existence of that weapon at the place through some other source also – Therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Motive – s.8 – Evidentiary value – The presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt.

Circumstantial Evidence – The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is perpetrator of crime.

Allowing the appeal, the Court

Held: 1. The Court in Chandrappa and Others v. State of Karnataka highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal. [Para 43][855-H; 856-A-B]

2. The date of the alleged crime is 23.08.2010. The so called extra judicial confession, said to have been made by Seetharam Bhat (accused No. 3) is dated 09.12.2010. The Court fail to understand why all of a sudden Seetharam (accused No. 3) after a period of almost four months, thought fit to make an extra judicial confession before the PW 7 H.T. Yogesh involving himself and the appellant herein in the alleged crime. 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 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. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. 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 for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and 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. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. [Paras 52, 53 & 54][864-G-H; 865-A-E]

3. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and Another, the Court after referring to Piara Singh and Others v. State of Punjab, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. [Para 56][867-C-D] Madan Gopal Kakkad v. Naval Dubey and Another (1992) 3 SCC 204 : [1992] 2 SCR 921; Piara Singh and Others v. State of Punjab (1977) 4 SCC 452 : [1978]

1 SCR 597 - referred to.

4. In the case on hand, the High Court committed a serious error in making the confessional statement as the basis and thereafter going in search for corroboration. The High Court concluded that the confessional statement is corroborated in material particulars without first considering and marshalling the evidence against the appellant convict herein excluding the conviction altogether from consideration. As held in the decision, cited, only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. [Para 59][868-B-C]

5. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. [Para 77][879-EF]

6. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If the entire oral evidence of the investigating officer is read then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter. [Para 78][879-F-H; 880-A-D]

7. In Dudh Nath Pandey v. State of U.P., the Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant’s knowledge as to where the weapon was kept. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapon. [Paras 85 & 86][883-A-C]

Dudh Nath Pandey v. State of U.P. AIR (1981) SC 911 - relied on.

8. In the context of judgments, the Court took a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What is being tried to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. [Para 89][885-E-G]

9. Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. The trial court rightly disbelieved motive to commit the crime as the evidence in this regard is absolutely hearsay in nature.[Para 92][887-D-E]

10. The fact that Court has ruled out the circumstances relating to the making of an extra judicial confession and the discovery of the weapon of offence etc. as not having been established, the chain of circumstantial evidence snaps so badly that to consider any other circumstance, even like motive, would not be necessary. [Para 93][887-F]

11. Thus, in view of the discussion, The Court has reached to the conclusion that the evidence of discovery of the weapon, clothes and dead body of the deceased at the instance of the appellant convict herein can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same. Therefore, It is concluded that the High Court committed error in holding the appellant convict herein guilty of the offence of murder. The appeal succeeds and allowed. The impugned judgment and order of conviction passed by the High Court is set aside. [Paras 94, 95 & 96][887-G-H; 888-A] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 - relied on. Sheo Swarup v. King Emperor (1934) SCC OnLine PC

42 : AIR 1934 PC 227; Chandrappaand Others v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Atley v. State of UttarPradesh AIR 1955 SC 807; Sanwat Singh and Others v. State of Rajasthan AIR 1961 SC

715 : [1961] 3 SCR 120; Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : [1955] 2 SCR 1285; M.G. Agarwal v. State of Maharashtra AIR 1963 SC

200 : [1963] 2 SCR 405; Shivaji Sahabrao Bobade and Another v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Ramesh Babulal Doshi v. State of Gujarat (1996) 9SCC225 : [1996] 2 Suppl. SCR 265; Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110 : [1997] 3 Suppl. SCR 444; Nepal Singh v. State of Haryana (2009) 12 SCC 351 : [2009] 6 SCR 982; State of Haryana v. Nepal Singh CRA-D No.

99 DBA of 1993 order dated 21-7-1997 (P&H); State of Uttar Pradesh v. Sahai and Others (1982) 1 SCC 352; Arunachalam v. P.S.R. Sadhanantham and Another, (1979) 2 SCC 297 : [1979] 3 SCR 482; State of Haryana v. Lakhbir Singh and Another (1991) Supp

(1) SCC 35; State of Rajasthan v. Sukhpal Singh and Others (1983) 1 SCC 393 : [1983] 2 SCR 53; State of U.P. v. Shanker, (1980) Supp SCC 489; State of U.P. v. Hakim Singh and Others (1980) 3 SCC 55; Arunachalam v. P.S.R. Sadhanantham and Another (1979) 2 SCC 297 : [1979] 3 SCR 482; State of Uttar Pradesh v. Ranjha Ram and Others (1986) 4 SCC 99; State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610 : [1982]

1 SCR 299; Gurbachan Singh v. Satpal Singh and Others (1990) 1 SCC 445 : [1989] 1 Suppl. SCR 292; State of Andhra Pradesh v. Bogam Chandraiah and Another (1986) 3 SCC 637; State of U.P. v. Pheru Singh and Others,1989 Supp(1) SCC 288; State of Uttar Pradesh v. Pussu alias Ram Kishore (1983) 3 SCC 502 : [1983] 3 SCR 294; Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403 : [2012] 4 SCR 366; Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159 : [1952] SCR 526; Haricharan Kurmi & Jogia Hajam v. State of Bihar, AIR 1964 SC 1184 : [1964] 6 SCR 623; RamChandra and Another v. State of Uttar Pradesh AIR 1957 SC381; Bhuboni Sahu v. The King AIR 1949 PC 257; Murli and Another v. State of Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378 ; Mohmed Inayatullah v. The State of Maharashtra AIR (1976) SC 483 : [1976] 1 SCR 715; Earabhadrappa v. State of Karnataka AIR (1983) SC 446 : [1983] 2 SCR

552 ; State of Uttar Pradesh v. Deoman Upadhyaya AIR (1960) SC 1125; Pulukuri Kottaya and Others v. Emperor AIR 1947 PC 67; Dudh Nath Pandey v. State of U.P. AIR (1981) SC 911 : [1981] 2 SCR 771; Bodhraj alias Bodha and Others v. State of Jammu and Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67; A. N. Venkatesh and Another v. State of Karnataka (2005) 7 SCC 714; Sampath Kumar v. Inspector of Police, Krishnagiri (2012) 4 SCC 124 : [2012]

2 SCR 289 – referred to.