Important point
Confession made by a co-accused shall not be sole basis for a conviction.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 120B r/w 34—As part of conspiracy hatched by three accused appellants, appellant ‘A’ went to house of professor PW11 where deceased was taking tuition class, called him out and shot him by country made pistol from close range—First information statement was made by other accused appellant R who was also taking tuition class with deceased but was part of conspiracy and tried to mislead police—Appellant ‘A’ on his arrest gave judicial confession recorded by Magistrate u/s 164 Cr.P.C. and had also made extra judicial confession before PW8—Conviction of all three accused —Appeal — Magistrate PW7 who recorded confession of accused ‘A’ complied with all requisite formalities contemplated u/s 164 Cr.P.C.—Two hours time was given to accused for reflection—Though accused had later on retracted confession, very nature of confession showed that it was voluntary in nature and was not at instance of police—Genuineness of confession could be decided on basis of extensive evidence which could land corroboration to confession—Confession of ‘A’ was corroborated by other evidence—Sessions Court was justified in relying on confession and conviction of ‘A’ called for no interference—Confession made by co-accused could not be sole basis for conviction—Complicity of other two accused was to be ascertained from other items of evidence—Complicity of appellant ‘S’ was borne out from other evidence—Appellant ‘S’ was present at the place of occurrence and PW6 had seen him running away from there and his evidence was corroborated by PW18—Confession of ‘A’ explained in detail involvement of appellant ‘S’ who had provided country pistol with cartridges to accused ‘A’—Confession by ‘A’ supported other evidence against ‘S’ and his participation in conspiracy and role in the crime was established—Confession of ‘S’ also called for no interference—Involvement of third accused ‘R’ appeared to be doubtful—Apart from suspicious conduct of appellant ‘R’ on the date of incident, there was no other evidence against him and his conviction was liable to be set aside. (Paras 10 to 16 and 21 to 26)
       (ii) Evidence Act, 1872—Section 30—Confession made by co-accused cannot be sole basis for conviction—It can only be used in support of other evidence.
       Held : It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh vs. The State of Madhya Pradesh AIR 1952 SC 159 held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. (Para 19)
       (iii) Criminal Procedure Code, 1973—Section 172—Case diary maintained by police—Neither accused nor his agent ‘shall’ be entitled to call for such diaries nor they be entitled to see them merely because they were referred by Court.
       Held : We may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 of the Cr.P.C. or the provisions of section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. (Para 27)

Judgment

K.G. Balakrishnan, J.—All the three appellants were found guilty by the Sessions Court for various offences. Appellant Arnit Das was found guilty of the offence under Section 27 of the Arms Act as also for the offence under Section 302 read with Section 120B IPC and sentenced to death. Appellant Sidharth was convicted for the offence under Section 302 read with Section 34 and Section 120B IPC and appellant Rohan Prakash was convicted for the offence under Section 302 read with Section 120B IPC. The two appellants who were sentenced to undergo imprisonment for life, filed separate appeals before the High Court of Patna and their conviction on all counts was confirmed. In the appeal preferred by Arnit Das, his conviction was confirmed but the sentence of death imposed on him was commuted to life imprisonment.

2. All these appellants were tried by the Sessions Court alleging that they entered into a conspiracy on 4.9.1998 to do away with one Abhishek. Deceased Abhishek, along with appellant Rohan Prakash, and two others, namely, Shweta and Anvesh, used to attend tuition classes at the residence of Prof. J.C. Banerjee from 5.00 p.m. to 6.00 p.m. and again from 7.00 p.m. to 8.00 p.m. Another student by name, Pallavi, used to get tuition from Prof. J.C. Banerjee from 6.00 p.m. to 7.00 p.m. Appellant Sidharth told appellant Arnit Das that appellant Rohan Prakash was in love with Pallavi but she was not responding and instead she had expressed her love towards deceased Abhishek and, therefore, he is to be killed. According to the prosecution, appellant Sidharth told appellant Arnit Das that all arrangements had been made to kill Abhishek and if appellant Arnit Das kills him, he would be introduced to veteran criminals, including one Suraj Bhan. Appellant Sidharth gave the description of deceased Abhishek to appellant Arnit Das and on 4.9.1998, he promised to provide a firearm to appellant Arnit Das. On 5.9.1998 at about 5.00 p.m., appellant Arnit Das came to the room of appellant Sidharth where the latter provided him with a double barrel country-made pistol, and loaded two cartridges in the pistol in his presence. Two extra cartridges were also given. Appellant Arnit Das was directed to go to the house of Prof. J.C. Banerjee and request the deceased, Abhishek to come out of the tuition class. He was told that appellant Rohan Prakash would help him to identify Abhishek. As part of the conspiracy thus hatched by these three appellants, at about 7.15 p.m. on 5.9.1998, appellant Arnit Das went to the house of Prof. J.C. Banerjee. His wife Rekha Banerjee was in an adjoining room and appellant Arnit Das told her that he wanted to meet Abhishek. Abhishek came out of the tuition class followed by appellant Rohan Prakash. The further case of the prosecution is that appellant Arnit Das took Abhishek ten to twelve steps away from the gate of the house of Prof. Banerjee, caught hold of him and fired a shot at him from a close range. Appellant Arnit Das fired one more shot, but it did not hit the deceased. Appellant Rohan Prakash, who had, in the meanwhile returned inside Prof. Banerjee’s house, wanted to go to the gate, but on hearing the shot, Mrs. Rekha Banerjee caught hold of his hand and advised him not to go out as she had heard the sound of firing of a shot. But appellant Rohan Prakash came out of the house and saw Abhishek lying on the ground with bleeding injury. He saw the assailant making good his escape on a bicycle. It is pertinent to note here that the prosecution case was that though appellant Rohan Prakash was one of the abettors in this murder, he pretended to be ignorant and after the incident, to mislead the police, he himself gave the F.I. Statement. Appellant Rohan Prakash looked at injured, Abhishek, and took him to the hospital in the car which incidentally belonged to Dr. Neel Kamal, father of Pallavi. Abhishek, was taken to Shahi Clinic where he underwent a surgery but died on the next day. Appellant Rohan Prakash

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2005 Supreme(SC) 1274

Important pointConfession made by a co-accused shall not be sole basis for a conviction.

Cases Referred (6)

Important point
Confession made by a co-accused shall not be sole basis for a conviction.