IMPORTANT POINT
Extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration.

Headnote:Indian Penal Code, 1860—Sections 364/34, 302/34 and 201/34—Two appellants convicted under—Kidnapping and murder of two minor sons of PW3—During investigation of report of children missing, dead bodies of children with school bags were recovered—Appellant No. 1 was related to complainant as they belonged to same community—Appellants were seen to have taken both children on their scooter and on being apprehended they led to recovery of clothes and tapes wherewith hands and legs of deceased children were tied—Both accused made extra judicial confession before PW11, an advocate and leader of their community—Trial Court awarded death sentence—High Court confirmed conviction but reduced sentence to life imprisonment—Appeal—Case was based on circumstantial evidence—Prosecution must prove that within all human probabilities, act must have been done by accused—Court should use yardstick of probability and appreciate intrinsic value of evidence—PW3 had received, ransom demand through a letter and same was found to be in handwriting of appellant No. 2—PW4, child witness had seen appellant taking children on scooter and no reason to disbelieve that part of statement though other part of his statement was found unbelievable—Extra judicial confession made by appellants separately was stated by witness in sufficient details—No reason to disbelieve the witness—Extra judicial confession could form basis of conviction—Recoveries provided corroboration—Conviction was well founded and called for no interference—Case however not falling in rarest of rare category, sentence was not liable to be enhanced.
       Held : The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well-settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between may be true and must be true. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively.(Para 10)
       Even if we discard that part of the statement made by PW-4, there is no reason as to why a part of his statement, namely, he was present when the children were taken by Gagan on his scooter, should be disbelieved or at least should not be taken into consideration for the purpose of corroboration.(Para 14)
       PW-15, Rajinder Kumar, is another witness who also last saw the victims sitting on the scooter of Appellant No.1. On 08.06.2000, he had gone to the house of his partner Paramjit Singh, which is just near the place of occurrence, and had seen three children coming on foot after getting tuition. He saw two children, namely Heena and Abhishek boarding the scooter of Appellant No.1, who drove the scooter towards Cine Payal Cinema. He was undoubtedly examined on 12.06.2000. He, however, disclosed the reason therefore. He categorically stated that he had left for Delhi on the same night and on his return he came to know that the police had been visiting his house. It is not unlikely that the police might have come to know that he was also present at the relevant time. It is important to note that Appellant No.1 even had not been arrested at that point of time. There was, thus, no reason for him to implicate Appellant No.1 as he had no animosity with him. He gave a very vivid and detailed description of the place from where the children came boarded the scooter. According to him the children were standing about 5-7 feet away from him on the street from where they boarded the scooter. He did not notice Sahil (PW-4). He also accepted that he did not know Sarita. There was no reason for him to know her. There is, thus, no reason as to why we should disbelieve his evidence.(Para 18)
       Extra-judicial confessions made by the appellants separately have been stated by the said witness in sufficient details. He was extensively cross-examined, but his statement made in examination in chief remained unshattered. He denied and disputed that Ex. D-1 was in his handwriting. The only comment made by Mr. Mahabir Singh in regard to his evidence was that he was called to the police station on 16.06.2000 by the investigating officer. He accepted the same. We do not see any reason as to why he would not visit the police station if called upon to do so by the investigating officer. He did not deny or dispute that he was also a witness to the recoveries. He had no other option but to go to the police station as was asked by the investigating officer. Even no suggestion has been given that he was inimically disposed towards Gagan or there was any animosity between the two families.(Para 24)
       Extra-judicial confession, as is well-known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. 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.(Para 26)
       Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.(Para 35)
       An appeal had also been preferred by the complainant for enhancing the sentence.(Para 36)
       Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.(Para 37)
       (ii) Indian Penal Code, 1860—Section 302—Conviction on extra judicial confession—By way of abundant caution, however, Court may look for some corroboration—Extra judicial confession if made voluntarily and proved can be relied upon by Courts.
       Held : Extra-judicial confession, as is well-known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. 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. [See Sukhwant Singh @ Balwinder Singh v. State through CBI - AIR 2003 SC 3362].(Para 26)

JUDGMENT

S.B. Sinha, J.—Appellants herein were prosecuted for commission of an offence under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code for kidnapping and murdering two children, Abhishek and Heena, aged six and eight years respectively, of one Kamal Kishore. They were sentenced to death. A reference was made to the High Court under Section 366 of the Code of Criminal Procedure.

2. Appeals were preferred by Appellants also before the High Court.

3. By reason of the impugned judgment, the High Court while upholding the judgment and conviction opined that the case cannot be said to be a rarest of rare one meriting award of death penalty.

4. The children went to take private tuition in the house of one Pooja. They were supposed to come back by 6.30 p.m. As they did not return, Kamal Kishore went to her house. He was informed that the children had left her house at 6.15 p.m. The children were continued to be searched. He, however, came to know that one scooterist wearing trouser of black colour and shirt of white colour had taken his children on his scooter. A First Information Report was lodged. During investigation, the school bags and dead bodies of the children were recovered. Appellant No. 1 herein is related to the complainant. They belong to the same community. They were neighbours. They, however, said to be belonging to different unions of their community being that of washermen.

5. P.W-4 is a child witness. He is nephew of Appellant No.1. They live in the same house. He is said to have seen the children sitting on the scooter of Appellant No.1 herein. Appellant No.1 was also seen riding the scooter along with the children by PW-15, who was a taxi driver.

6. Both the appellants furthermore went to the house of PW-11, an advocate and the leader of their community and made an extra-judicial confession. Extra judicial confession was also purported to have been made by them before the father of Appellant No.1 herein, who also got his statement recorded before the Magistrate under Section 164 of the Code of Criminal Procedure. He, however, was not examined. Appellant No.1 was arrested on the basis of the said extra-judicial confession. He made disclosure statements leading to recoveries of clothes and tapes wherewith hands and legs of the deceased children were said to have been tied.

7. The prosecution in proving the charges against the appellants herein, inter alia, relied upon a purported letter received by the said Kamal Kishore wherein ransom was demanded. It was found to be in the handwriting of Appellant No.2.

8. Mr. Mahabir Singh, the learned Senior Counsel appearing on behalf of the appellants, in support of the appeals would submit :

1)Evidence of PW-4, Sahil, who was a child witness, could not have been believed particularly when: (a) he was examined after 20 days; (b) he identified the accused at the instance of PW-11; and (c) he purported to have made the statement on the basis of a letter Ex. D-I.

2)Extra-judicial confession is a weak peace of evidence and the same having not been corroborated in material particulars, no reliance could be placed thereupon.

3)The High Court committed an illegality in relying upon the statement of the father of Appellant No.1 under Section 164 of the Code of Criminal Procedure, which was not admissible in evidence.

4)PW-11, before whom the purported extra-judicial confession was made, having been called to the police station as also being a witness to the recovery should not have been relied upon.

5)Delay having occurred in recording the statement of PW-15, no reliance thereupon could have been placed.

6)Investigating officer having fabricated a part of the records, no reliance could be placed upon the materials found on investigation.

9. Mr. D.P. Singh, the learned counsel appearing on behalf of the State, on the other hand, would submit :

1)Evidence of PW-4 must be judged keeping in view the fact that he and Appellant No.1 were residing in the same house and a

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2006 Supreme(SC) 1174

IMPORTANT POINTExtra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration.

Cases Referred (6)

IMPORTANT POINT
Extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration.