Raja Vs. State of Tamil Nadu  INSC 568 (30 July 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
1494-95 OF 2009 S. Arul Raja .... Appellant Versus State of Tamil Nadu ....
Mukundakam Sharma, J.
These appeals are directed against the judgment of the Madurai
Bench of the Madras High Court dated 05.08.2009. By the said judgment, the High
Court reversed the judgment of acquittal of the appellant passed by the
Principal Sessions Judge, Tirunelveli, and convicted the appellant, Arul Raja
under Section 302 read with Section 120-B of the Indian Penal Code, 1860
("IPC"), and sentenced him to undergo life imprisonment and to pay a
fine of 5000/- in default to suffer three months' rigorous imprisonment.
also convicted under Section 307, read with Section 120- B of the IPC and
sentenced to Rigorous Imprisonment for a period of three years.
The appellant was convicted for murder, attempted murder, and
criminal conspiracy to commit the aforesaid crimes in connection with the death
of Sri Aladi Aruna, a former law minister of Tamil Nadu, which occurred on
31.12.2004. The facts in this regard go back to the alleged animosity between
the appellant and Aladi Aruna over the years. The Appellant was running several
educational institutions in the District of Tirunelveli and Kanyakumari, and
had also started an Engineering College at Athiyuthu in 2000. Subsequently,
Aladi Aruna himself started an Engineering College, proximate to the one
started by the appellant. The relations between both the appellant and Aladi
Aruna, who were on good terms until then, 2 were said to have deteriorated
after the latter's direct involvement in the business sphere of the appellant.
Furthermore, in the same month in which Anna University granted
affiliation to the Engineering College run by Aladi Aruna, it also cancelled
the affiliation already accorded to the appellant's College. Consequently, many
students allegedly left the appellant's College to join the institution run by
situation was also alleged to be responsible for increasing the existing
tension between both the appellant and Aladi Aruna.
Appellant has been accused of hatching a conspiracy wherein he
engaged Accused No. 1, Veldurai (hereinafter referred to as "A1"),
and deceased accused, Benny, to murder Aladi Aruna.
In pursuance of this alleged conspiracy, Aladi Aruna was murdered
on 31.12.2004, by accused persons Nos. 1 to 4, along with deceased accused
Benny and Auto Bhaskar, who formed into two groups to commit the act. All of
them were subsequently arrested, with the exception of A1 and deceased accused
3 In the
course of the investigation, it became known that A1 and Benny had fled to
Ahmedabad in Gujarat.
On the night of 25.1.2005, a team comprising the Gujarat and Tamil
Nadu Police entered the flat that housed Veldurai and Benny, and attempted to
apprehend them. In the melee that ensued, A1 was arrested, while Benny consumed
cyanide. Both were taken immediately to the L.G hospital nearby, where despite
being administered treatment, Benny died.
In the morning of 26.12.2005, the Executive Magistrate of
Ahmedabad City, Mr. Solanki, went to L.G hospital upon receiving a written
requisition to record the dying declaration of A1. In his statement made to the
Executive Magistrate, A1 implicated the appellant in the crime, and declared
that he was given a contract killing by one S.P. Raja for an agreed
remuneration of Rs. 5,00,000/- out of which he was paid an advance of Rs.
20,000/-. The Executive Magistrate Mr. Solanki was examined as PW-30 and
testified before the Principal Sessions Court at Tirunelveli as to the same.
The Executive Magistrate, who took the dying declaration from A1
has also noted that he was "hale and healthy" while his statements
were being recorded. A1, it is significant to note, was discharged from L.G.
Hospital on the same day, and produced before the Ahmedabad Magistrate for
issue of transit warrant to Tamil Nadu.
The Madras High Court has convicted the appellant primarily on the
basis of this declaration that implicated him in a conspiracy to murder Arul
Raja. The High Court also took into account circumstantial evidence, such as
the motive behind the act, as well as the statement of a bystander (PW3) who
witnessed A1 and deceased accused Benny entering the premises of the
Appellant's college on a motorcycle a week before the murder.
Being aggrieved by the aforesaid decision, the appellant has filed
the present Special Leave Petition before this Court. We have heard the learned
counsel appearing for the parties at length.
11.Counsel for the appellant argued that the statement of A1 is
not a dying declaration within the meaning of Section 32(1) of the Evidence
Act, 1861, since the very fact of his surviving negates the requirements to be
complied in the said provision. Further, Counsel also argued that this
statement is hit by Section 26 of the Evidence Act, 1872, as it was not
recorded in the manner prescribed by Section 164 of the Code of Criminal
Counsel for the appellant also contended that the requirements of
Section 10 of the Evidence Act mandate that such a statement be made prior to
the cessation of the common intention of the conspiracy. Hence, it was argued
that the statement of A1 made after the murder of Aladi Aruna may not be used
to implicate the Appellant in a conspiracy. In addition, Counsel has also
debunked the testimony of PW3 as inadequate and insufficient to prove charges
of conspiracy against the Appellant.
In its reply, the Counsel for the State of Tamil Nadu urged this
Court to weigh the collective evidence presented, which, it was argued,
implicates the appellant. In addition to the motive to eliminate a rival,
Counsel also pointed to the telephone conversation between the appellant and
Aladi Aruna's son (PW8), which highlighted the animosity between the former and
Counsel for the State also submitted that the statement of A1 is
not tainted in any manner and hence, is admissible as evidence. In this regard,
Counsel pointed out that there exists nothing to suggest any mala fide
involvement between the Gujarat and Tamil Nadu Police to extract the confession
from Veldurai. Counsel also contended that the statement was made in connection
with the ongoing investigation surrounding the suicide of deceased accused
Benny, rather than as a purported dying declaration.
In light of the aforesaid arguments, it falls upon us to consider
the matter in terms of three issues. Firstly, whether 7 there existed a motive
for the appellant to murder Aladi Aruna;
whether the appellant conspired with the other accused to commit the crime; And
thirdly, whether A1's statement could constitute a valid dying declaration or a
confession or could constitute an evidence in any manner so as to be used to
implicate the appellant for murder.
It was contended by the Respondent that the murder of Aladi Aruna
was motivated by the animosity between the latter and the appellant. The
Respondent had seized on the possible existence of a rivalry between Arul Raja
and Aladi Aruna with regard to the running of their respective educational
institutions in the same area. The cancellation of affiliation of appellant's
college to Anna University has been alleged to be the catalyst that led the
appellant to murder Aladi Aruna. The High Court also held that the appellant
believed this cancellation of affiliation to be done at the instance of Aladi
The aforesaid motive is claimed to have been evidenced by threats
from the appellant. PW8 (Son of Aladi Aruna) has testified 8 to a conversation
with the appellant wherein he spoke of "dire consequences" for having
the affiliation of Anna University removed from his college.
However, according to PW 38 (the Chief Superintendent of Anna
University), the cancellation of affiliation was done on the basis of
irregularities in the appellant's college. Pursuant to an application submitted
by the appellant, the Madras High Court had also issued a stay on Anna
University's order. Seen in this light, there does not appear to be any role of
the deceased in the act and hence, the argument that the cancellation of
affiliation compelled the appellant to eliminate Aladi Aruna does not hold
As far as exodus of students from Arul Raja's college to Aladi
Aruna's is concerned, the issue can be termed inconclusive at best. The
cancellation of affiliation had been done in August 2004, and new registrations
would have to be accepted only in the next academic year beginning from
May/June 2005. PW 21 (a student who used to study in the appellant's
Engineering 9 College), who has testified that nearly 30 students left from the
appellant's college to Aladi Aruna's, completed his 12th Grade in the academic
year 2004-2005 and joined thereafter. This is well after the cancellation of
affiliation, and hence the testimony fails to establish the connection between
these events and the escalation of hostilities between the appellant and Aladi
To the Respondent, these events added together provide a vital
link that illuminates the actions of Arul Raja and his alleged co-conspirators.
However, we find such an argument to be unconvincing. While it may be true that
appellant had grievances against Aladi Aruna, the chain of events that is said
to have driven the appellant to commit murder do not provide a clear motive to
substantiate the argument of the Respondent, or the decision of the High Court.
In pursuance of this motive, it has been sought to be established
by the Respondent that the appellant conspired with the other accused to murder
Aladi Aruna. This Court in Vijayan v. State of Kerala reported in 1999 (3) SCC
54 has held that to 10 punish a person for criminal conspiracy under Section
120-B of IPC, it is necessary to establish that there was an agreement between
the parties for doing an unlawful Act. Therefore, it is imperative to see
whether there had been any such agreement between the Appellant and co-accused
to murder Aladi Aruna, which could be established by producing reliable
To this effect, reference was made to meetings allegedly held
between the appellant and two of the co-accused, namely, A1 and deceased
accused Benny. While the first meeting between the said persons was purported
to be held on 14.9.2004, the second one is claimed to have been held on
24.12.2004. However, we find that there is little evidence to prove the
presence of the appellant in both these meetings. The High Court has rightly
noted that the prosecution could not make its case concerning the meeting on
14.9.2004 due to PW1 and PW2 turning hostile.
been held by this Court in Bhagwan Singh v. State of Haryana (1976) 1 SCC 389
and other subsequent cases, while the evidence of a hostile witness would not
be completely effaced, the same requires corroboration and strict scrutiny. In
this case, 11 however, the prosecution has not been able to adduce any material
evidence that may corroborate the statements of PW1 and PW2. Hence, the same is
not admissible in this case.
The second date of meeting that the prosecution had put forward
for the formulation of a conspiracy was 24.12.2004. On this date, A1 and
deceased accused Benny said to have met the appellant to plot the murder of
Aladi Aruna. In this regard, the statements of PWs 4 and 5 were recorded
wherein they testified to hearing a conversation between the said persons in
the appellant's chamber regarding the commission of the crime.
since both witnesses have subsequently turned hostile, their statements do not
inspire confidence and hence this story is not substantiated.
On the other hand, the High Court has relied on the evidence
provided by PW 3, Thenraj, who has testified to have seen both A1 and Benny
drive into the college premises of the appellant. As the High Court recounted
in the following words:- "82....PW3 has stated that on 24.12.2004, he and
his friend Karuppasamy were proceeding to the 12 Poolangulam village and at
about 11.00 A.M. when they were nearing S.A. Raja's college, they felt thirsty
and they stopped the vehicle in front of weighing bridge...and were taking
tender coconut. At that time, PW3 saw Accused No. 1- Veldurai and another
person [deceased accused-Benny] came in a motorcycle from east to west and both
entered into the Engineering college of S.A. Raja and returned from the college
some 15 minutes thereafter."
time, PW3 could not identify the pillion rider but later identified him as the
deceased accused Benny after being shown his photograph.
Whereas the High Court noted this statement as a vital piece of
evidence affirming the existence of a conspiracy between the appellant and the
co-accused, we are compelled to disagree.
relying upon the statement of PW3, the High Court has glossed over important
facts. From the examination of witnesses it is not clear whether Arul Raja was
at all present at this meeting and the same could not be substantiated by any
cogent and reliable evidence. Since the purpose of the meeting and the presence
of the alleged participants cannot be confirmed, this testimony is too weak to
support any conclusion in favour of the Respondent.
The prosecution has also relied on meetings that may have taken
place on 28.12.2004 to 30.12.2004 to hold up the charge of conspiracy. Accused
Nos. 1 to 5 and deceased accused Auto Bhaskar were said to be in Sundara
Nilayam, Courtallam to work out a plan to murder Aladi Aruna. However, the
evidence as regards these meetings make no reference to the appellant and hence
no reference is to be made to the same at this stage.
The High Court has strung the following pieces of substantiated
events together to include the appellant within the ambit of the conspiracy:-
"7 On 24.12.2004, Accused No. 1 and deceased accused- Benny had gone into
the college of Accused No. 7 and returned after 15 minutes.
Presence of Accused No. 1, Accused No. 4 and deceased accused-Benny on the
southern side of place of occurrence on 31.12.2004.
No. 1 and deceased accused-Benny flew to Gujarat and were apprehended together.
Benny consumed cyanide poison immediately after the arrest and accused-Auto
Baskar consumed cyanide poison after arrest while in transit."
We find that these events, even when taken together, cannot prove
a charge of conspiracy so far the appellant is concerned. In State through
Superintendent of Police, CBI/SIT v. Nalini &
reported in (1999) 5 SCC 253, it was held that: - "583. ..........
of criminal conspiracy is an exception to the general law where intent alone
does not constitute crime. It is intention to commit crime and joining hands
with persons having the same intention.
the intention but there has to be agreement to carry out the object of the
intention, which is an offence.
question for consideration in a case is did all the accused have the intention
and did they agree that the crime be committed. It would not be enough for the
offence of conspiracy when some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence be
instance, mere circumstantial evidence to prove the involvement of the
appellant is not sufficient to meet the requirements of criminal conspiracy
under Section 120-A of the IPC. A meeting of minds to form a criminal
conspiracy has to be proved by placing substantive evidence and the Respondent
has not adduced any evidence which underlines the same. The issue of whether
A1's statement, recorded after his arrest, may be used 15 to implicate the
appellant in the said conspiracy shall be dealt with subsequently.
We must now consider whether the statement made by A1 and recorded
by the Executive Magistrate of Ahmedabad City in the morning of 26.12.2005,
which is proved as Ex. P22, may be used to implicate the Appellant in this
crime. The Respondent, and the High Court in its decision, both rely on A1's
statement made while he was in L.G Hospital, subsequent to his arrest.
statement was recorded as A1's dying declaration.
the legal basis to admit the statement as a dying declaration needs to be
Section 32 (1) of the Evidence Act, 1872 states that a dying
declaration is a relevant fact and therefore admissible in evidence. Section 32
(1) categorically states that a statement made by a person as to the cause of
his death, or as to any of the circumstances of the transaction which resulted
in his death is a relevant fact and admissible in evidence in cases in which
the cause of that person's death comes into question. It further 16 mentions
that such a statement will be admissible in evidence when the person making it
is dead or cannot be found or has become incapable of giving evidence or whose
attendance cannot be procured without an amount of delay or expense.
It is trite law that for a statement to be admissible in evidence
as a dying declaration, the person making the statement should no longer be
alive. If the person eventually does not die after making the statement, then
the same cannot be treated as a dying declaration.
The cited authority of the High Court in regards to the
admissibility of a dying declaration, Rattan Singh v. State of Himachal Pradesh
reported in (1997) 4 SCC 161, in fact confirms the necessary condition of death
failing which this statement will be inadmissible under the dying declaration
Other case law also confirms this necessary condition. In
Ramprasad v. State of Maharashtra8 reported at (1999) 5 SCC 30, this Court
held:- "13. Ext. 52 is the dying declaration made by PW 1 Ramu Somani,
which was recorded by a Judicial 17 Magistrate (PW 16). Both the trial court
and the High Court counted Ext. 52 as a piece of evidence. Shri R.S. Lambat,
learned counsel contended that both the courts have gone wrong in treating Ext.
52 as evidence because the person who gave that statement is not dead and hence
it could not fall under Section 32 of the Evidence Act, 1872. Counsel further
contended that even otherwise Ext. 52 could only have been used to contradict
PW 1 as provided in Section 162 of the Code of Criminal Procedure (for short
"the Code") as it was a statement recorded during investigation.
are in full agreement with the contention of the learned counsel that Ext. 52
cannot be used as evidence under Section 32 of the Evidence Act though it was
recorded as a dying declaration. At the time when PW 1 gave the statement he
would have been under expectation of death but that is not sufficient to wiggle
it into the cassette of Section 32. As long as the maker of the statement is
alive it would remain only in the realm of a statement recorded during
that as it may, the question is whether the Court could treat it as an item of
evidence for any purpose.
157 of the Evidence Act permits proof of any former statement made by a witness
relating to the same fact before "any authority legally competent to
investigate the fact" but its use is limited to corroboration of the
testimony of such a witness.
police officer is legally competent to investigate, any statement made to him
during such an investigation cannot be used to corroborate the testimony of a
witness because of the clear interdict contained in Section 162 of the Code.
But a statement made to a Magistrate is not affected by the prohibition
contained in the said section. A Magistrate can record the statement of a
person as provided in Section 164 of the Code and such a statement would either
be elevated to the status of Section 32 if the maker of the statement
subsequently dies or it would remain within the realm of what it was
originally. A statement recorded by a Magistrate under Section 164 becomes
usable to corroborate the witness as provided in Section 157 of the Evidence
Act or to contradict him as provided in Section 155 thereof."
In the present case, on 26.01.2005 at about 7:15 a.m., PW- 46
(Executive Magistrate/Deputy Tehsildar), on receiving a written requisition
from L.G. Hospital for recording the dying declaration of A1 who was admitted
to the ICU Ward of the said hospital, went there and recorded the alleged dying
declaration which is Ex. P22. Ex. P22 cannot be said to be a dying declaration
and that is so on account of various reasons, which may be elaborated herein.
The most important of them all is that A1 did not die after making
the alleged dying declaration. From the decision of this Court in the
aforementioned case, it is clear that when a person who has made a statement
perhaps in expectation of death, is not dead, it is not a dying declaration and
is not admissible under Section 32 of the Evidence Act.
Furthermore, there is no reason forthcoming as to why A1 was
brought to the hospital along with deceased accused Benny.
nothing on record to show that A1 also had consumed poison or that he was in
any manner ill or injured which 19 necessitated his admission to the hospital
for treatment. In this regard, we may notice the testimony of PW-46. PW-46 has
clearly deposed that when he went to the said hospital, he saw that A1 was
sitting "hale and healthy". He further stated that he had recorded
the alleged dying declaration of A1 because in the requisition letter it was
mentioned that both A1 and deceased Benny had consumed poison. PW-46 also
stated that A1 was under treatment and in a frightened mood. He has
categorically stated in his testimony that he did not ascertain from A1 as to
whether he had consumed poison or as to the nature of the same. He further
states in his testimony that he did not ascertain from A1 as to what made him
consume poison and whether he had consumed it himself or if somebody had
administered the same. This is a major lapse and casts a serious doubt on the
credibility of the statement.
It must also be noted that despite the fact that A1 was admitted
to the ICU ward, he was discharged from the hospital and was produced before
the Magistrate, Ahmedabad at 7:30 p.m on the same day, i.e., 26.01.2005. From
this, two inferences may 20 be drawn. One is that A1 was not actually ill so as
to warrant admission to the ICU and that was done only with a view to obtaining
a statement which could subsequently be used against him. Alternatively, the
second is that A1 was actually ill and his serious condition necessitated
admission to the ICU ward. But if his condition was so serious, then we fail to
understand why he was discharged from the hospital on the very same day. That
does not seem to us to be a reasonable course and raises serious doubts in our
We cannot appreciate the need for PW-46 having recorded the dying
declaration of A1 when A1 was sitting "hale and healthy", as deposed
by PW-46 himself. No doctor treating A1 was examined as to prove and establish
that A1 was seriously ill and the line of treatment given to him in the
On a perusal of Ex. P-22 as a whole and Question No. 11 therein in
particular it cannot be said to be a statement admissible in evidence as a
dying declaration. In response to Q.11, A1 replied that "in Ahmedabad
Vatva Dr. Maya Tawer's 21 Home Nr. Cadila Bridge dated 26.01.2005 at 1:30 in
night police caught and brought". There is nothing in the alleged dying
declaration to show why A1 was brought to the hospital. Also, if it were
recorded as a dying declaration, it should have contained the circumstances
that necessitated A1's admission to the hospital. Ex. P-22 lacks that important
aspect and hence it cannot be raised to the status of a dying declaration.
PW-46 has stated in his testimony that he did not even make an attempt to
ascertain who or what was responsible for A1's condition and why he consumed
poison. Rather it seems to us that ascertaining the cause of his condition
should have been the prime concern for PW-46 who went to the hospital to record
the dying declaration. In this regard, it is also pertinent to note that no doctor
from L.G. Hospitals who was on duty on the said day has been examined.
This Court in the case of Sharawan Bhadaji Bhirad & Others v.
State of Maharashtra reported in (2002) 10 SCC 56 held that when a statement is
recorded as a dying declaration and the victim survives, such statement need
not stand the strict 22 scrutiny of a dying declaration, but may be treated as
a statement under Section 164, Cr.P.C.
Therefore, with the said statement inadmissible as a dying
declaration, the question that arises is: whether the statement could be
admissible either as a confession or as an extra-judicial confession?
The events surrounding the confession made by A1 while in
hospital, and more significantly, in police custody, are too ambiguous to support
conviction of the appellant.
Section 164 Cr.P.C. provides guidelines to be followed for taking
the statement of accused as a confession. The one essential condition is that
it must be made voluntarily and not under threat or coercion. This Court in
Aloke Nath Dutta & Ors. v. State of West Bengal reported in (2007) 12 SCC
230 held as under: - "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 23
said purpose the court has to satisfy itself in regard to:
voluntariness of the confession; (ii) truthfulness of the confession; (iii)
Court in Shankaria v. State of Rajasthan stated the law thus: (SCC p. 443, para
23) "23. This confession was retracted by the appellant when he was
examined at the trial under Section 311 CrPC on 14-6-1975. It is well settled
that a confession, if voluntarily and truthfully made, is an efficacious proof
when in a capital case the prosecution demands a conviction of the accused,
primarily on the basis of his confession recorded under Section 164 CrPC, the
Court must apply a double test:
Whether the confession was perfectly voluntary? (2) If so, whether it is true
and trustworthy? Satisfaction of the first test is a sine qua non for its
admissibility in evidence. If the confession appears to the Court to have been
caused by any inducement, threat or promise such as is mentioned in Section 24,
Evidence Act, it must be excluded and rejected brevi manu. In such a case, the
question of proceeding further to apply the second test, does not arise. If the
first test is satisfied, the Court must, before acting upon the confession
reach the finding that what is stated therein is true and reliable. For judging
the reliability of such a confession, or for that matter of any substantive
piece of evidence, there is no rigid canon of universal application. Even so,
one broad method which may be useful in most cases for evaluating a confession
may be indicated. The Court should carefully examine the confession and compare
it with the rest of the evidence, in the light of the surrounding circumstances
and probabilities of the case. If on such examination and comparison, the
confession appears to be a probable catalogue of events and naturally fits in
with the rest of the evidence and the surrounding circumstances, it may be
taken to have satisfied the second test." "
In Babubhai Udesinh Parmar v. State of Gujarat reported in (2006)
12 SCC 268, this Court held that compliance with statutory provisions is
mandatory which should be in letter and spirit and not in a routine or
As has been held by this Court in State of UP v. Singhara Singh,
reported in (1964) 4 SCR 485, a statement that does not prescribe to the
procedure laid down in Section 164 of the CrPC is not admissible as a
confessional statement. In this case, the statement has neither been recorded
by a Judicial Magistrate nor has it fulfilled procedural requirements,
including that of a certificate to be appended by the Magistrate. Hence, the
statement is not admissible against the appellant as a confession under Section
Besides, in the present case, as pleaded by the appellant, A1 gave
a representation on 9.5.2005 with a request to the Judicial Magistrate Court,
Thenkasi and also Magistrate Court at Senkottai stating that his confessional
statement which implicated the appellant was not voluntary and that he was 25
forced to give the same by the police. Therefore, there is a doubt as to
whether implication of the appellant by A1, if any, was made voluntarily.
Viewed from this angle and under any circumstance, the said statement cannot be
regarded as a confession as envisaged under Section 164 Cr. P.C. to implicate
Therefore, the only issue that remains before us to be decided is
whether the statement made by A1 may be considered as an extra-judicial
confession. The concept of an extra-judicial confession is primarily a judicial
creation, and must be used with restraint. Such a confession must be used only
in limited circumstances, and should also be corroborated by way of abundant
caution. This Court in Ram Singh v. Sonia & Others, reported in (2007) 3
SCC 1, has held that an extra-judicial confession while in police custody
cannot be allowed. Moreover, when there is a case hanging on an extra-judicial
confession, corroborated only by circumstantial evidence, then the Courts must
treat the same with utmost caution. This principle has been affirmed by this
Court in Ediga Anamma v. State of AP, 26 reported in (1974) 4 SCC 443 and State
of Maharashtra v. Kondiba Tukaram Shirke, reported in (1976) 3 SCC 775. It is
significant to observe that A1 has subsequently sought to retract this
statement upon his arrival in Tamil Nadu.
In Maghar Singh v. State of Punjab reported in (1975) 4 SCC 234,
at page 236, while dealing with the question of extra- judicial confession,
this Court held as follows: - "5. ................If the Court believes
the witnesses before whom the confession is made and it is satisfied that the
confession was voluntary, then in such a case conviction can be founded on such
evidence alone as was done in Rao Shiv Bahadur Singh v. State of V.P. where
their Lordships of the Supreme Court rested the conviction of the accused on
the extra-judicial confession made by him before two independent witnesses,
namely, Gadkari and Perulakar. In the instant case also, after perusing the
evidence of PW 3 and PW 12 we are satisfied that they are independent witnesses
before whom both the appellant and accused Surjit Kaur made confession of their
guilt and this therefore forms a very important link in the chain of
circumstantial evidence. In our opinion the argument proceeds on fundamentally
wrong premises that the extra-judicial confession is tainted evidence."
The evidentiary value of the extra-judicial confession must be
judged in the facts and circumstances of each individual case.
confession, if voluntarily made and fully consistent 27 with the circumstantial
evidence, no doubt, establishes the guilt of the accused. The extra-judicial
confession, if voluntary, can be relied upon by the court along with other
evidence in convicting the accused. However, the extra-judicial confession
cannot ipso facto be termed to be tainted. An extra-judicial confession, if
made voluntarily and proved, can be relied upon by the Courts.
This Court in State of A.P. v. S. Swarnalatha & Others
reported in (2009) 8 SCC 383 held as follows: - "16.
.................Extra-judicial confession as is well known is a weak piece of
evidence, although in given situations reliance thereupon can be placed. (See
State of U.P. v. M.K. Anthony, SCC p. 517, para 15 and State of Rajasthan v.
Kashi Ram, SCC p. 262, para 14.)"
In Pakkirisamy v. State of T.N. reported in (1997) 8 SCC 158, at
page 162, this Court held: - "8. ....................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. It is no doubt true that extra-judicial confession
by its very nature is rather a weak type of evidence and it is for this reason
that a duty is cast upon the court to look for corroboration from other
reliable evidence on record.
evidence requires appreciation with a great deal of care and caution. If such
an extra-judicial confession is 28 surrounded by suspicious circumstances,
needless to state that its credibility becomes doubtful and consequently it
loses its importance. The same principle has been enunciated by this Court in
Balwinder Singh v. State of Punjab. ......................"
This Court in State of A.P. v. Kanda Gopaludu reported in (2005)
13 SCC 116 held that extra-judicial confession is admissible if it inspired
confidence and made voluntarily.
This Court in Kavita v. State of T.N. reported in (1998) 6 SCC
108, at page 108 held as follows: - "4. There is no doubt that convictions
can be based on extra-judicial 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 the veracity of the
witness to whom it is made. It may not be necessary that the actual words used
by the accused must be given by the witness but it is for the court to decide
on the acceptability of the evidence having regard to the credibility of the
In view of the above case law, it is made clear that an extra-
judicial confession is a weak piece of evidence. Though it can be made the
basis of conviction, due care and caution must be exercised by the Courts to
ascertain the truthfulness of the confession. Rules of caution must be applied
before accepting an extra-judicial confession. Before the Court proceeds to act
on the 29 basis of an extra-judicial confession, the circumstances under which
it is made, the manner in which it is made and the persons to whom it is made
must be considered along with the two rules of caution. First, whether the
evidence of confession is reliable and second, whether it finds corroboration.
In the present case, the purported dying declaration was recorded
in the hospital. A1 was discharged from the hospital on the same day that his
statement was recorded. That A1 later made a representation stating that the
confession was not given voluntarily, raises doubts as to its truthfulness.
Under these circumstances, it is to be said that the authenticity of A1's
confession is not free from doubts. In the present case, A1 being the
co-accused, it is not proper to convict the appellant solely on the basis of
the confession of A1 - more so, when the confession is not corroborated by any
evidence. Such corroborating evidence that may confirm the appellant's
involvement in Aladi Aruna's murder is totally missing in this case.
Furthermore, we find that the statement made by A1 is insufficient
to implicate the appellant in the said conspiracy as the same is hit by Section
10 of the Evidence Act. Section 10 refers to the statement of a fellow
conspirator that pertains to the common intention behind the act, and such a
statement can be used against the other conspirators. In the present case, we
have found and held that the prosecution has failed to substantiate the
allegation of conspiracy against the appellant and therefore, he could not be
under any circumstance be called a co- conspirator so as to attract the
provisions of Section 10 of the Evidence Act. Furthermore, this Court in Mohd.
Khalid v. State of West Bengal reported in (2002) 7 SCC 334 and State of
Gujarat v. Mohd. Atik & Others reported in (1998) 4 SCC 351 has held that a
post-arrest statement would not fall within the ambit of Section 10 of the
Evidence Act. Therefore, the statement made by A1 in police custody cannot be
used to implicate the appellant in the conspiracy to murder Aladi Aruna.
Thus, viewed from any angle, the evidence adduced by the
prosecution against the appellant is not sufficient to justify his 31
conviction either under Section 302 or Section 307 or under Section 120-B of
In view of the aforesaid conclusions, we find no merit in the
arguments of the Respondent. These appeals are allowed and the decision of the
High Court is reversed and the appellant stands acquitted of the charges
against him purely and simply on benefit of doubt. He shall be released
forthwith from jail, if not wanted in any other case.
............................................J. [Dr. Mukundakam
...........................................J. [ C.K. Prasad]
July 30, 2010.