Sahadevan & Anr. v. State of Tamil Nadu
SWATANTER KUMAR, J. 1. The present appeal is
E directed against the judgment of the High Court dated 27th
September, 2006 vide which the High Court affirmed the
judgment of conviction and order of sentence dated 31st
December, 2003 passed by the Trial Court.
2. The prosecution case is that Smt. Kamala!, PW-2 was
F married to one Yoganandan@ Loganathan, the deceased. The
accused No.1, Chandran is the brother of Kamalal (PW2).
accused No.2, Sahadevan, and accused No. 3, Arul Murugan,
were the friends of accused No.1. PW2 was being ill-treated
by Loganathan, her husband. Being her brother, accused No.1
G thought that if he murdered Loganathan, life of his sister would
be peaceful. Thus, accused No.1 and his friends (the other two
accused) entered into a criminal conspiracy to commit murder
of Loganathan. According to PW-5, Karuppuswamy, when he
was talking to one Chinnaswamy at a three star hotel near the
H Neruparichal bus stand at about 10 p.m. on 9th July, 2002, he
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 377
[SWATANTER KUMAR, J.]
saw Sahadevan driving a TVS moped in A
Povmmanayakkampallayam road, while two other persons
were sitting as pillion riders. The vehicle was proceeding
towards west. After a while, one of them came back and again
went in the same direction on the same vehicle. PW-4, then saw
the deceased, Yoganandan and accused No.1 going in the 8
same direction on the TVS moped at about 2 p.m. Again after
some time, accused No.2 alone came back on the moped. On
10th July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a
dead body in the Pommanayakkanpallam Road, whereupon he
went to PW-1, the Administrative Officer and informed him of C
that fact. PW-1, upon receiving this information, went to the spot
and saw the dead body. He then went to the Perumanallur
Police Station and made a complaint, Ext.P-1, to the Sub
Inspector of Police, Ganesan, PW-8.
3. Upon receipt of the complaint, the police registered a D
case being Crime No.150 of 2002 for an offence under Section
302 of the Indian Penal Code, 1860 (for short "the IPC") against
unknown accused. The Investigating Officer, PW-9, proceeded
to the scene of occurrence. There he prepared observation
Mahazar, Ext.P-2 and took photographs of the dead body. E
4. Between 3 p.m. to 6 p.m., he conducted inquest over
the dead body in the presence of Panchayatdars and witnesses
and prepared the inquest report, Ext.P-13. The Senior Civil
Assistant Surgeon, PW7, attached to the Thirupur Government
Hospital, after receiving the requisite information and the body,
performed autopsy on the body of the deceased. She noted
the injuries on the body of the deceased and issued the post
mortem certificate, Ext. P-10, expressing the opinion that the
deceased would have died 27 to 28 hours prior to autopsy.
5. It is further the case of the prosecution that on 14th July,
2002, when PW-6, Muthurathinam, President of
Kanakampalayam Panchayat was in his office along with one
Shanmugasundaram, all the above-named three accused
came to his office and told him that deceased Loganathan was H
A the brother-in-law of accused No.1 and on account of family
problem between accused No.1 and the deceased, they
murdered Loganathan by strangulating him and after putting
kerosene on him, set the body of the deceased afire. The
statements made by the accused were reduced to writing by
8 PW-6 and after obtaining their signatures and putting his own
signature thereon he handed over the report, Ext. P-4, to the
Police Station along with the custody of the accused whereupon
PW-9, the Investigating Officer arrested all the accused
persons.
C 6. PW9, on the basis of the confessional statements,
Ext.P-5 to P-7, recovered M0-6 (TVS moped TN 38 7344),
M0-7 (bottle smelling of kerosene). and M0-8 (matchbox). PW-
9 then sent the MOs for forensic examination along with Ext.
P-15, the requisition therefor. Subsequently, PW-9 was relieved
D of his duties and PW-10 completed the investigation of the case
and filed the chargesheet against all the three accused under
Section 1208 and Section 302 IPC. All the accused were tried
in accordance with law.
E 7. We may notice here that in their statement under
Section 313 Cr.PC, the accused persons denied the incident,
including the alleged extra-judicial confession made by them
and also stated that they were falsely implicated in the case.
However, all the three accused chose not to lead any defence.
F Finally, the prosecution examined as many as 10 witnesses
and produced on record the documentary evidence. The trial
Court vide its judgment dated 31st December, 2003 acquitted
all the accused for an offence under Section 1208 IPC,
however, it convicted all the three accused under Section 302
IPC and awarded them sentence of imprisonment for life and
G fine of Rs. 5,000/-, in default thereof, to undergo rigorous
imprisonment for six months.
8. Aggrieved from the judgment of the trial court, the
accused preferred an appeal before the High Court which
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 379
[SWATANTER KUMAR, J.]
came to be dismissed vide order dated 27th September, 2006 A
resulting in the filing of the present appeal.
9. Accused No.2, Sahadevan and accused No.3, Arul
Murugan have preferred the present appeal. Accused No.1,
Chandran has not filed any appeal. B
10. The learned counsel appearing for these two appellants
has advanced the following arguments while impugning the
judgment under appeal :-
(i) The case of the prosecution is solely based upon
the extra-judicial confession, which confession is
neither reliable nor has been recorded in
accordance with law. This extra-judicial confession
cannot form the basis of conviction of the appellants
since it has no corroboration and when examined
in light of the settled principles of law, it is
inconsequential, thus, the accused are entitled to
the benefit of doubt.
(ii) In the present case, there is neither any eye-witness
nor the prosecution has proved the complete chain
of circumstances. The courts have erred in applying
the theory of last seen together to return the finding
of conviction against the accused. There being no
direct evidence of involvement of the appellants in
the commission of the crime, the theory of last seen
together could not be of any assistance to the case
of the prosecution.
(iii) The recoveries alleged to have been made in
furtherance to the confessional statements of the
accused are inadmissible in evidence and, in any
case, the objects recovered have no link with the
commission of the crime and as such, it would be
impermissible in law to use these recoveries
against the accused for sustaining their conviction.
380
(iv) The courts have failed to appreciate the medical
and other evidence placed on record in its correct
perspective. There are serious contradictions in the
medical and ocular evidence, as regards the time
of the death of the deceased. Once, the time of
death of deceased is not established, the whole
story of the prosecution falls to the ground.
(v) According to the learned counsel for the appellants,
an extra-judicial confession, besides being
inadmissible, is also a very weak piece of evidence
and in a case of circumstantial evidence like the
present, one cannot form a valid basis for returning
the finding of guilt against the accused.
11. To the contra, the learned counsel appearing for the
D State argued that the extra-judicial confession in the present
case is admissible as it is duly corroborated by other
prosecution evidence, and thus, the courts are fully justified in
convicting the accused. It is also contended that the present
case is of circumstantial evidence and the prosecution has
E succeeded in establishing every circumstance of the chain of
events that would fully support the view that the accused is guilty
of the offence. The court while dealing with the judgment under
appeal, upon proper appreciation of evidence, thus, has come
to the right conclusion.
F 12. There is no doubt that in the present case, there is no
eye-witness. It is a case based upon circumstantial evidence.
In case of circumstantial evidence, the onus lies upon the
prosecution to prove the complete chain of events which shall
undoubtedly point towards the guilt of the accused.
G Furthermore, in case of circumstantial evidence, where the
prosecution relies upon an extra-judicial confession, the court
has to examine the same with a greater degree of care and
caution. It is a settled principle of criminal jurisprudence that
extra-judicial confession is a weak piece of evidence. Wherever
H the Court, upon due appreciation of the entire prosecution
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 381
[SWATANTER KUMAR, J.]
evidence, intends to base a conviction on an extra-judicial A
confession, it must ensure that the same inspires confidence
and is corroborated by other prosecution evidence. If, however,
the extra-judicial confession suffers from material discrepancies
or inherent improbabilities and does not appear to be cogent
as per the prosecution version, it may be difficult for the court B
to base a conviction on such a confession. In such
circumstances, the court would be fully justified in ruling such
evidence out of consideration.
13. Now, we may examine some judgments of this Court C
dealing with this. aspect.
14. In Ba/winder Singh v. State of Punjab [1995 Supp. (4)
SCC 259], this Court stated the principle that an extra-judicial
confession, by its very nature is rather a weak type of evidence
and requires appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance.
15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158],
the Court held that it is well settled that it is a rule of caution
where the court would generally look for an independent reliable
corroboration before placing any reliance upon such extra
judicial confession.
16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108],
. the Court stated the dictum that there is no doubt that conviction
can be based on extrajudicial confession, but it is well settled
that in the very nature of things, it is a weak piece of evidence.
It is to be proved just like any other fact and the value thereof
depends upon veracity of the witnesses to whom it is made.
17. While explaining the dimensions of the principles
govJrning the admissibility and evidentiary value of an extra
judicial confession, this Court in the case of State of Rajastha~;
v. Raja Ram [(2003) 8 SCC 180] stated the principlE ..• a~ an
A extra-judicial confession, if voluntary and true and made in a fit
state of mind, can be relied upon by the court. The confession
will have to be proved like any other fact. The value of evidence
as to confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made. The Court,
B further expressed the view that such a confession can be relied
upon and conviction can be founded thereon if the evidence
about the confession comes from the mouth of witnesses who
appear to be unbiased, not even remotely inimical to the
accused and in respect of whom nothing is brought out which
C may tend to indicate that he may have a motive of attributing
an untruthful statement to the accused.
18. In the case of Aloke Nath Dutta v. State of WB. [(2007)
12 SCC 230], the Court, while holding the placing of reliance
on extra-judicial confession by the lower courts in absence of
D other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is
a relevant fact. It can be acted upon. Confession may under
certain circumstances and subject to law laid down by the
E superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of
the confession; (ii) truthfulness of the confession; (iii)
corroboration.
F xxx xxx xxx
89. A detailed confession which would otherwise be withir,
the special knowledge of the accused may itself be not
sufficient to raise a presumption that confession is a truthful
G one. Main features of a confession are required to be
verified. If it is not done, no conviction can be based only
on the sole basis thereof."
19. Accepting the admissibility of the extra-judicial
H confession, the Court in the case of Sansar Chand v. State of
Rajasthan ((2010) 10 SCC 604] held that:-
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 383
[SWATANTER KUMAR, J.]
"29. There is no absolute rule that an extra-judicial A
confession can never be the basis of a conviction, although
ordinarily an extra-judicial confession should be
corroborated by some other material. [Vide Thimma and
Thimma Raju v. State of Mysore, Mulk Raj v. State of
UP., Sivakumar v. State (SCC paras 40 and 41 : AIR B
paras 41 & 42), Shiva Karam Payaswami Tewari v. State
of Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by
Balwan has been referred to in the judgments of the C
learned Magistrate and the Special Judge, and it has been
corroborated by the other material on record. We are
satisfied that the confession was voluntary and was not the
result of inducement, threat or promise as contemplated
by Section 24 of the Evidence Act, 1872."
20. Dealing with the situation of retraction from the extra
judicial confession made by an accused, the Court in the case
of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5 sec 740], held as under :
E "It appears therefore, that the appellant has retracted his
confession. When an extra-judicial confession is retracted
by an accused, there is no inflexible rule that the court
must invariably accept the retraction. But at the same time
it is unsafe for the court to rely on the retracted confession, F
unless, the court on a consideration of the entire evidence
comes to a definite conclusion that the retracted
confession is true."
21. Extra-judicial confession must be established to be
true and made voluntarily and in a fit state of mind. The words G
of the witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis
of conviction, if it passes the test of credibility. The extra-judicial
confession should inspire confidence and the court should find H
384 SUPREME COURT REPORTS [2012) 4 S.C.R.
A out whether there are other cogent circumstances on record to
support it. [Ref. Sk. Yusuf v. State of W B. [(2011) 11 SCC
754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
22. Upon a proper analysis of the above-referred
B judgments of this Court, it will be appropriate to state the
principles which would make an extra-judicial confession an
admissible piece of evidence capable of forming the basis of
conviction of an accused. These precepts would guide the
judicial mind while dealing with the veracity of cases where the
prosecution heavily relies upon an extra-judicial confession
C alleged to have been made by the accused.
The Principles
(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.
F (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
G other fact and in accordance with law.
23. Having stated the principles which may be kept in mind
by the court while examining the acceptability and evidentiary
value of the extra-judicial confession, we may now refer to the
extra-judicial confession, Ext. P-4, in the case before us. This
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 385
[SWATANTER KUMAR, J.]
extra-judicial confession is alleged to have been made by all A
the three accused to one Muthurathinam, PW-6. The said Ext.
P-4 reads as under:-
"I am the president of Kanakampalayam today the
14.7.2002 at 9.30 in the morning, when I was at my office 8
along with loclite Shanmugasundaram, a person named
Chandran aged 36 son of Muthu and resident of Navakarai,
Pooluvapatti along with Sahadevan aged 27 s/o
Pannerselvam having a furniture by name Sri Priya
agencies at Boyampalayam Sri Nagar and one Arul C
Murugan aged 23 s/o Krishnan, belonging to Dindugal and
going to printing work by staying at pandian nagar came
to my office saying that he along with his friends
Sahadevan and Arulmurugan, on 08-07-02 his sisters
husband Yoganathan @ Logananthan who was without
going to work and nor looking after the family and was D
loitering hereunder an no way to look after his sister
Kamalal and her children and more tortures from her
husband and confessed to her that her husband without
going any work, he is simply loitering hereunder and tried
to him to separate her from her husband. Hence E
elimination is better than separation and said his sisters
life would be, peaceful, he along with his friends
Sahadevan and Arulmurugan executed a friendly call to him
and told him that they would promised him a job at nrupur.
After 10 p.m. in the night, when there was no traunt on the F
Neruperchial Bommanaichenpalayam mud road
Sahadevan in his moped with Loganathan sit and also
made Arul Murugan to sit along with and asked to halt at
certain place and again Sahadevan came in moped and
he along with kerosene and match box and went there and G
parked the moped and were all 4 of them talking enticing
Loganathan with getting him a job at Tirupur he with the
towel which was kept ready put around Loganathan's neck
and he strangled by holding one end of the towel and
Arulmurugan strangling by the other end of the towel. ME!an H
A while Sahadevan bought how Loganathan's face and hand
and started face and since due to strangulation
Loganathan fainted and fell into the east side of the ditch
and suddenly and Chandran took kerosene and matchbox
from moped cover which was kept ready, in order to avoid
B identity burnt him and killed him and after that they all 3
took the moped and they went to Sahadevan house and
parked the vehicle and the same night they went out of
station and a return to Tirupur only yesterday. They came
to know that the police are after then they came to my
c house today and told me what happened
Shanmugasundram recorded the above averments of
Chandran after that bringing all 3 to you and present them
before you."
24. As per the case of the prosecution, the deceased was
D murdered on 9th -10th July, 2002. The body of the deceased
was taken into custody by the police on 10th July, 2002 itself.
The accused persons were residents of the same village and
there is nothing on record to show that the Police made any
serious attempt to search and arrest them. The Investigating
E Officers, PW-9 and PW-10, have not stated in their statements
that the accused persons were absconding. Four days later,
on 14th July, 2002, the accused persons are alleged to have
gone to the office of PW-6 to make the confession of having
murdered the brother-in-law of accused No.1. Ext. P-4 is
F addressed to the police inspector. If the accused were to make
such a statement to the police itself, then what was the need
for them to first go to PW-6. However, an explanation is
advanced on behalf of the State that the accused only signed
the statement and it was PW-6 who then handed over Ext. P-
G 4 to the police, along with the custody of the accused persons.
25. Further, Ext. P-4 is stated to have been made by the
accused persons to PW-6, in the presence of
Shanmugasundaram. The said person, for reasons best known
to the prosecution, has not been examined by the prosecution
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 387
[SWATANTER KUMAR, J.]
to prove the recording of Ext. P-4 and to provide greater A
credence to this document.
26. Moreover, in their statement under Section 313 CrPC,
the accused have denied the very execution of Ext. P-4. In order
to examine the veracity of this document, the court essentially 8 has to find out the correctness and corroboration of the facts
stated in Ext. P-4 by other prosecution evidence. In Ext. P-4, it
is stated that the deceased ill-treated his wife, PW-2, Kamala!
and that was the motive and, in fact, essentially the cause for
the accused to murder the deceased. The whole emphasis is
upon the bitter relationship between the husband and wife. The C
very basis of Ext. P-4 falls to the ground when one peruses the
statement of Kamala!, PW-2. In her statement, she has stated
that her husband was employed in a rolling mill and that there
was no dispute between them. Further, she has categorically
stated that she had never stated anything with regard to dispute D
between her husband and accused No.1 to the police and that
there was no property dispute amongst them. Upon this, this
witness was declared hostile by the prosecution with the leave
of the court. Even in her cross-examination, nothing could be
brought out to establish the fact of alleged cruelties inflicted by E
the deceased upon her and there being any dispute between
them.
27. An attempt has been made on behalf of the prosecution
to support its case by the statements of PW-4 and PW-5. PW-
4 stated that he had seen Loganathan, who used to live
opposite his house, going on a moped along with his wife's
brother Chandran at about 2 O'clock in the afternoon. After
knowing that there was a corpse lying at Nereuperichel, he went
and saw the dead body. It was that of Loganathan.
28. PW5 also deposed that on 9th July, 2002, at about
10.00 p.m., he had seen three persons going in a moped
towards Bommanaickanpalayam road. After sometime, only
one person returned on the moped and again went towards
west. Thereafter, those three persons returned. He stated that H
A he could not identify those three persons, if he saw them. Out
of the three, he knew only one person who drove the moped
and that was accused No.2, Sahadevan. Next day, upon
hearing the news that there was a corpse lying, he went and
saw it. Since the face of the corpse was burnt, he could not
s identify him.
29. The statement of these two witnesses is at variance
with Exhibit P4 and hardly finds corroboration from other
prosecution evidence and also suffers from discrepancies.
Thus, the contents of Exhibit P4 are belied by the prosecution
C evidences itself and, therefore, it is not safe for the Court to rely
upon such extra-judicial confession. The various factors
mentioned above bring out serious deficiencies in the veracity,
credence and evidentiary value of Exhibit P4. For the afore
recorded reasoning, we must disturb the finding of guilt
D recorded by the Trial Court while substantially relying upon
Exhibit P4 as, in our opinion, Exhibit P4 has to be ruled out
from the zone of consideration, which we hereby do.
30. The courts below, the Trial Court in particular, have laid
E some emphasis on the theory of last seen, while finding the
accused guilty of the offence. As far as PWS is concerned, he
says that he only saw three persons going on the moped and
he could not identify these persons. PW4 stated that he had
seen the deceased going on a moped with Chandran at about
F 2.00 o'clock in the afternoon. The time lag between the time at
which this witness saw the accused and the deceased together
and when the body of the deceased was found on the next day
is considerably long. According to PW4, he could identify
Loganathan while, according to PWS, the face of the deceased
G was burnt and, therefore, he could not identify him. Moreover,
according to the doctor, PW7, the deceased had died about
27 to 28 hours before the autopsy. The autopsy, was admittedly,
performed upon the deceased on 10th of July, at about 2
o'clock. That implies that the deceased would have died
sometime during the morning of 9th July, while according to
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 389
[SWATANTER KUMAR, J.]
PW4, he had seen the deceased along with Chandran after 2 A
p.m. on 9th July, 2002.
31. With the development of law, the theory of last seen
has become a definite tool in the hands of the prosecution to
establish the guilt of the accused. This concept is also accepted B
in various judgments of this Court. The Court has taken the
consistent view that where the only circumstantial evidence
taker;i resort to by the prosecution is that the accused and
deceased were last seen together, it may raise suspicion but
it is not independently sufficient to lead to a finding of guilt. In c
Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], this
Court took the view that the where the appellant was alleged
to have gone to the house of one Sitaram in the evening of 19th
July, 1985 and had stayed in the night at the house of deceased
Sitaram, the evidence was very shaky and inconclusive. Even 0 if it was accepted that they were there, it would, at best, amount
to be the evidence of the appellants having been last seen
together with the deceased. The Court further observed that it
is settled law that the only circumstance of last seen will not
complete the chain of circumstances to record a finding that it
is consistent only with the hypothesis of guilt of the accused and, E
therefore, no conviction, on that basis alone, can be founded.
32. Even in the case of State of Kamataka v. M. V. Mahesh
[(2003) 3 sec 353], this Court held that merely being last seen
together is not enough. What has to be established in a case F
of this nature is definite evidence to indicate that the deceased
had been done to death of which the respondent is or must be
aware as also proximate to the time of being last seen together.
No such clinching evidence is put forth. It is no doubt true that
even in the absence corpus delicti it is possible to establish in G
an appropriate case commission of murder on appropriate
material being made available to the Court.
33. In the case of State of U.P. v. Satish [(2005) 3SCC
114], this Court had stated that the principle of last seen comes H
A into play where the time gap between the point of time when
the accused and the deceased were last seen alive and when
the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime
becomes impossible.
B 34. Undoubtedly, the last seen theory is an important event
in the chain of circumstances that would completely establish
and/or could point to the guilt of the accused with some
certainty. But this theory should be applied while taking into
C consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the
point of being so last seen.
35. The statement of PW5 does not indicate the time as
to when he had seen the deceased and with which of the
D accused. He expressed inability to even identify them. PW4
though claims to have seen them but has given a time which
itself is doubtful. Even this cannot be stated with certainty that
at that particular time the deceased was alive or dead.
E 36. In light of the abovementioned contradictions and the
uncertainty of evidence, we are unable to sustain the view taken
by the High Court that on the theory of last seen, the accused
can be convicted. This fact is uncorroborated and suffers from
apparent contradictions and discrepancies as well.
F RECOVERY
37. PW9, the Investigating Officer, after arresting accused
No.2, Sahadevan, recorded his statement. The accused stated
that he had hidden kerosene bottle, a match box and TVS
G Moped bearing No.50 TN 38 7344 and could get them
recovered. He also stated that Chandran had taken him on that
moped. In furtherance to this statement of this accused and in
presence of the witnesses at about 2.45 hours, the Investigating
Officer recovered and seized M06, the TVS moped, M07,
H bottle with kerosene odour and M08, match box. In his entire
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 391
[SWATANTER KUMAR, J.]
deposition, this witness had not stated that these were the A
articles which were used by the accused persons in the
commission of the crime. It was expected of the prosecution
to establish a connection between the articles recovered and
the incident or the crime, as alleged to have been committed.
According to the prosecution, kerosene oil was poured over the B
deceased and he was set on fire. No kerosene was found on
the body of the deceased or on the belongings, i.e., clothing,
chappal etc. of the deceased. The witness to the confession
statement, Shanmugasundram, was not examined. PW6
admitted before the Court that he did not see the house of the c
accused, Sahadevan. In the case of State of Rajasthan v. Bhup
Singh [(1997) 10 SCC 675], this Court observed the following
as the conditions prescribed in Section 27 of the Indian
Evidence Act, 1872 for unwrapping the cover of ban against
admissibility of statement of accused to police (1) a fact should 0 have been discovered in consequence of the information
received from the accused; (2) he should have been accused
of an offence; (3) he should have been in the custody of a police
officer when he supplied the information; (4) the tact so
discovered should have been deposed to by the witness. The
Court observed that if these conditions are satisfied, that part E
of the information given by the accused which led to such
recovery gets denuded of the wrapper of prohibition and it
becomes admissible in evidence.
38. In the present case, the recoveries have been effected F
upon the statement of the accused under Section 27 of the
Evidence Act. These recoveries, in our view, were made in
furtherance to the statement of the accused who were in police
custody and in presence of independent witnesses. It may be
that one of them had not been examined but that, by itself, shall G
not vitiate the recovery or make the articles inadmissible in
evidence. The aspect which the Court has to consider in the
present case is whether these recoveries have been made in
accordance with law and whether they are admissible in
evidence or not and most importantly the link with and effect of H
A the same vis-a-vis the commission of the crime. According to
the post mortem report Ext. P-10 as well as the forensic report
Ext.P-22, kerosene or its smell was neither found on the body
nor the belongings of the deceased and, therefore, it creates
a little doubt as to whether the recovered items were at all and
B actually used in the commission of crime. However, as far as
TVS moped, M0-6 is concerned, there is sufficient evidence
to show that it was used by the accused but the other
contradictions and discrepancies noted above overshadow this
evidence and give advantage to the accused.
c 39. Now, we would deal with the contention of the appellant
that the· prosecution has not been able to establish even the
time of death of the deceased. According to the prosecution,
the deceased had been murdered on 9th July, 2002 at about
11 p.m. but according to the post mortem report Exhibit P10,
D the deceased was murdered on 10th July, 2002, i.e. between
10 and 11 a.m. The post mortem report was recorded on 11th
July, 2002 at 2.00 p.m. stating that the deceased was murdered
before 27 to 28 hours. Absence of kerosene oil on the body of
the deceased and articles taken into custody from the body of
E the deceased, the contradictions in the statement of the
witnesses, the fact that PW2 has not supported the case of the
prosecution and PW5 not being able to even identify the
accused, lend support to the arguments raised on behalf of the
accused and create a dent in the story of the prosecution. Not
F on any single ground, as discussed above, but in view of the
cumulative effect of the above discussion on all the aspects,
we are unable to sustain the judgment of the High Court. In our
opinion, the prosecution has failed to prove its case beyond
reasonable doubt.
40. In view of our above discussion, the last question for
consideration of the Court is as to what order, if any, is required
to be made against the non-appealing accused, i.e., accused
No.1, Chandran. From the prosecution evidence, it is clear that
some role had been specifically assigned to the accused
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 393
[SWATANTER KUMAR, J.]
Chandran. He is the brother-in-law of the deceased and is A
stated to have been last seen taking the deceased on the
moped whereafter the deceased never returned. In normal
circumstances, the obvious result would be to leave the non
appealing accused to undergo the punishment awarded to him
in accordance with law. But, where the Court finds that the entire B
case of the prosecution suffers from material contradictions, the
most crucial evidence is not reliable, there are definite and
material flaws in the case of the prosecution and the Police has
failed to discharge its duties at different steps, in that event, it
will be difficult for this Court to leave the non-appealing accused C
to his fate. Under the Indian criminal jurisprudence, an accused
is presumed to be innocent until proven guilty and his liberty can
be curtailed by putting him under imprisonment by due process
of law only. If the entire case of the prosecution has been found
to be unreliable and the prosecution, as a whole, has not been 0 able to prove its case beyond reasonable doubt, then the
benefit should accrue to all the accused persons and not merely
to the accused who have preferred an appeal against the
judgment of conviction. In the case of Raja Ram v. State of
Madhya Pradesh [(1994) 2 SCC 568], this Court extended the
benefit of conversion of sentence to all the accused, from that E
under Section 302 IPC to one under Section 304 IPC, including
the non-appealing accused. The Court held that in its opinion,
the case of the non-appealing accused was not really
distinguisbable from other accused persons and it was
appropriate that benefit of the judgment should also be F
extended to the non-appealing accused, Ram Sahai, in that
case. Again, in the case of Bijoy Singh v. State of Bihar [(2002)
9 SCC 147], this Court clearly stated the principle that it has
set up a judicial precedent that where on evaluation of the case,
the Court reaches the conclusion that no conviction of any G
accused is possible the benefit of that decision must be
extended to the co-accused, similarly situated, though he has
not challenged the order by way of an appeal. In the case of
Pawan Kumar v. State of Haryana [(2003) 11 SCC 241 ], while
referring to the myth of the salutary powers exercisable by the H
A Court under Article 142 of the Constitution for doing complete
justice to the parties, the Court opined that powers under Article
136 of the Constitution can be exercised by it even suo motu
and that the right to personal liberty guaranteed to the citizens,
as enshrined under Article 21 of the Constitution, would be a
B factor which can be considered by the Court in granting such
reliefs. The Court held as under :
"17. Apart from the salutary powers exercisable by this
Court under Article 142 of the Constitution for doing
complete justice to the parties, the powers under Article
136 of the Constitution can be exercised by it in favour of
a party even suo motu when the Court is satisfied that
compelling grounds for its exercise exist but it should be
used very sparingly with caution and circumspection
inasmuch as only the rarest of rare cases. One of such
grounds may be, as it exists like in the present case, where
this Court while considering appeal of one of the accused
comes to the conclusion that conviction of appealing as
well as non-appealing accused both was unwarranted.
Upon the aforesaid conclusion arrived at by the Apex Court
of the land, further detention of the non-appealing accused,
by virtue of the judgment rendered by the High Court
upholding his conviction, being without any authority of law,
infringes upon the right to personal liberty guaranteed to
the citizen as enshrined under Article 21 of the Constitution.
In our view, in cases akin to the present one, where there
is either a flagrant violation of mandatory provision of any
statute or any provision of the Constitution, it is not that this
Court has a discretion to exercise its suo motu power but
a duty is enjoined upon it to exercise the same by setting
right the illegality in the judgment of the High Court as it is
well settled that illegality should not be allowed to be
perpetuated and failure by this Court to interfere with the
same would amount to allowing the illegality to be
perpetuated. In view of the foregoing discussion, we are
of the opinion that accused Balwinder Singh alias Binder
SAHADEVAN & ANR. v. STATE OF TAMIL NADU 395
[SWATANTER KUMAR, J.]
is also entitled to be extended the same benefit which we A
are granting in favour of the appellant."
Similar view has also been expressed by this Court in the
cases of Madhu v. State of Kera/a [(2012) 2 sec 399] and
Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC 698]. B
41. It is very difficult to set any universal principle which
could be applied to all cases irrespective of the facts,
circumstances and the findings returned by the Court of
competent jurisdiction. It will always depend upon the facts and
circumstances of a given case. Where the Court finds that the C
prosecution evidence suffers from serious contradictions, is
unreliable, is ex facie neither cogent nor true and the
prosecution has failed to discharge the established onus of
proving the guilt of the accused beyond reasonable doubt, the
Court will be well within its jurisdiction to return the finding of D
acquittal and even suo moto extend the benefit to a non
appealing accused as well, more so, where the Court even
disbelieves the very occurrence of the crime itself. Of course,
the role attributed to each of the accused and other attendant
circumstances would be relevant considerations for the Court E
to apply its discretion judiciously. There can be varied reasons
for a non-appealing accused in not approaching the appellate
Court. If, for compelling and inevitable reasons, like lack of
finances, absence of any person to pursue his remedy and lack
of proper assistance in the jail, an accused is unable to file
appeal, then it would amount to denial of access to justice to
such accused. The concept of fair trial would take within its
ambit the right to be heard by the appellate Court. It is hardly
possible to believe that an accused would, out of choice, give
up his right to appeal, especially in a crime where a sentence G
of imprisonment for life is prescribed and awarded. Fairness
in the administration of justice system and access to justice
would be the relevant considerations for this Court to examine
whether a non-appealing accused could or could not be
extended the benefit of the judgment of acquittal. The access
to justice is an essential feature of administration of justice. This H
A is applicable with enhanced rigour to the criminal jurisprudence.
Where the court disbelieves the entire incident of the
occurrence or where the role of the accused who has not
appealed is identical to that of the other appealing accused or
where the ends of justice demand, the Court would not hesitate
B and, in fact, is duty bound, to dispense justice in accordance
with law. The powers of this Court, in terms of Articles 136 and
142 on the one hand and the rights of an accused under Article
21 of the Constitution on the other, are wide enough to deliver
complete justice to the parties. These powers are incapable
c of being curtailed by such technical aspects which would not
help in attainment of justice in the opinion of the Court. In light
of the above principles, this Court is required to consider the
e~ect of these judgments on the case of the non-appealing
accused in the present case.
D 42. In the present case, accused No.1, Chandran had been
attributed the same role as the other two accused. All the
accused were stated to have murdered the deceased and
burnt his body. It was a case of circumstantial evidence where
not only has the prosecution failed to prove all the facts and
E events to complete the chain of events pointing only towards
the guilt of the accused but there are also definite discrepancies
in the case of the prosecution, contradictions between the
statements of the material witnesses and the most important
piece of prosecution evidence, the extra-judicial confession,
F Exhibit P4, is found entirely unreliable, not worthy of credence
as well as the facts recorded in Exhibit P4 stand disproved by
another prosecution witness herself, i.e., PW-2, who, in fact,
has lost her husband.
43. For the reasons afore-recorded, while accepting the
G appeal of the accused-appellants, we also direct that the benefit
of this judgment shall also stand extended to accused No.1,
Chandran, who is in jail. All the accused are acquitted of the
charge under Section 302 IPC. They be set at liberty forthwith.
H K.K.T. Appeal allowed.