The judgment underscores the importance of corroborating an extra-judicial confession with other prosecution evidence and the need for evidence to inspire confidence and be free from material discrepancies.

JUDGMENT

M.S. Sonak, J. - Heard Mr. A.V. Pavithran, learned Advocate for the appellant, and Mr. P. Faldessai, learned Additional Public Prosecutor for the respondent - State.

2. This appeal is directed against the judgment and order dated 13/03/2020 made by the learned Sessions Judge, South Goa, at Margao in Sessions Case (302) No.3 / 2019 convicting the appellant for the offense punishable under Section 302 of IPC and sentencing him to suffer imprisonment for life and pay a fine of Rs. 10,000/- and in default to suffer Simple Imprisonment for six months.

3. The case of the prosecution as reflected in the charge-sheet is that on 07/10/2018 at around 20.30 hours at Vodlebhat Verna Salcete, Goa, the appellant (accused) assaulted one Umesh Dungdung and thereafter assaulting with a laterite stone on his head causing him fatal injuries. The accused then fled away from the spot and this incident was captured in a CCTV camera attached to the DVR fixed in the house of the complainant (Pw1).

4. The prosecution examined 18 witnesses and thereafter the accused was questioned under Section 313 of Cr. P.C. The accused neither examined himself nor led any defense evidence. By the impugned judgment and order the learned Sessions Judge has convicted and sentenced the accused as aforesaid. Hence, the present appeal.

5. We have heard Mr. Pavithran, learned Counsel for the appellant, and Mr. P. Faldessai learned Additional Public Prosecutor for the State. With their assistance, we have perused not only the impugned judgment and order but also the material on record. We have also, in the Court, viewed the CD (Exh.39) on the laptop i.e. the CCTV footage recorded in-camera No.3, which forms a part of the prosecution evidence.

6. Admittedly, there is no direct evidence, and the learned Sessions Judge has convicted the accused based on circumstantial evidence. The only two circumstances taken into account by the learned Sessions Judge are as follows:

a) the alleged extra-judicial confession made by the accused to Pw1, Pw4, and Pw17 on 08/10/2018;

b) the evidence in the form of CCTV footage (Exh.39).

7. Now in so far as the CCTV footage is concerned, the learned Sessions Judge has also held that from such footage it is impossible to identify the accused. As noted earlier, we have also viewed the footage and we also agree with the learned Sessions Judge that it is quite impossible to identify the accused as one of the two persons i.e. the assailant.

8. Since it is not possible to identify the accused in the CCTV footage, this evidence can hardly be regarded as any incriminating circumstance qua the accused. Exh.39 can, therefore, not be regarded as proof of any incriminating circumstance in the matter of this nature.

9. Mr. Pavithran did contend that there was no certification in terms of Section 65 B of the Evidence Act. According to us, it is not necessary to go into this issue because Exh.39, even if accepted, does not incriminate the accused in the absence of his identification.

10. Therefore, the only circumstance it remains is the so-called extra-judicial confession made by the accused to Pw1, Pw4, and Pw17 on the next date of the alleged incident i.e. 08/10/2018.

11. At the outset, it is necessary to remind ourselves that extra-judicial confession is a weak piece of evidence. Therefore, the Court has to ensure that it inspires confidence and it is corroborated by other prosecution evidence. If extra-judicial confession suffers from material discrepancies or inherent probabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession.

12. Pw1 i.e. Simon Dias claims to be the employer of the accused, whom, he had engaged to drive the truck and operate the JBC machine. Pw1 has deposed on 07/10/2018 during evening hours when he was returning to his house from Margao on his bullet motorcycle, near his house he noticed one male person lying on the tar road on the side portion at