TaxTMI 
TaxTMI 
2004 (9) TMI 649
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....h Gogamukh Police Post on the morning of June 29, 1999 by Basanti Taid (P.W.5), the mother of Robindra. She stated that her son Robindra and her husband's brother's son by name Keshav who was residing with her, could not be traced since 5.30 P.M. of the previous day despite a search made and that on the morning of the following day, the dead body of Keshav was found in a stream beneath a damaged boat but her son Robindra was still untraceable. Investigation was then taken up by Sub- Inspector of Police (P.W.29). He recovered the dead body of Keshav at the place pointed out by P.W.5 and others. He then conducted inquest on the dead body of Keshav and prepared a report to which PWs 17 and 18 were signatories. The body was sent to Dhemaji Civil Hospital on the same day i.e. 29.6.1999 for postmortem examination. The postmortem of the body of Keshav revealed that he was strangulated to death. The prosecution case then runs as follows: By interrogating the friends of the victim boys who were playing with them in the evening of 28th June, 1999, the I.O. suspected Jitu, who by then left the village Baligaon. Having got information on the next day that he was at village Majuli, PW22 arre....
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....egu was the President. That very day we decided at the meeting to kidnap Rebat Khanikar's son for ransom. All of us together we tried thrice, but could not kidnap the boy. Later we decided to kidnap Keshab Taid and Rabindra Taid, two minor boys of our village, for ransom. On 28/6/99 I sent for Keshab and Bhaiti (Rabin). I had engaged Prasanta, Manjit and Harekrishna of our village for the purpose. They (Keshab and Rabin) were playing. Then I took them to a jamu tree, saying that I would give them Jamu. It was then around 5.30. I detained Keshab and Rabin against their will and rebuked the rest three away. Keshab and Bhaiti wanted to leave, but I enticed them to stay on. Thereafter I called Parama Pegu in. We sat down there for a while. Then we learnt that the villagers were searching for the boys. Then I and Parama decided to kill the boys. Accordingly we tied Keshab's hands up and gagged him with paddy straw. Then we strangled him to death and threw the body into the nearby water. We then placed a boat on the body in overturned position. Parama took Bhaiti (Rabin) along and strangled him to death not far away. He threw the body to the 'dhap' (a raised ground along a boundary of a ....
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....ccused before PWs 25, 28 & 29 and some others. 6. Recovery of dead body of deceased-Robindra at the instance of the accused Jitu Pegu. 7. Opinion of Medical Officers (PWs 23 & 24). We shall examine whether any of the circumstances could be pressed into service in judging the complicity of the appellant in the crime. The last seen evidence is the first and foremost circumstance that has been relied upon by the High Court. However, we find no evidence that the victim boys were in the company of the appellant on the evening of 28.6.1999. PWs 1 to 3 categorically stated that it was Jitu Pegu who coaxed them to bring the boys Robindra and Keshav and detained them with him and quipped to PWs 1 to 3 that they would be returning by a different route later. It was Jitu Pegu who allegedly gave them threat not to reveal it to others. Nowhere the name of the appellant was mentioned. On the other hand, all of them stated that they did not know the other accused namely the appellant herein. The second circumstance is also relatable to the first accused Jitu Pegu only. The recovery of silver chain of Robindra was at the instance of Jitu Pegu, but not the appellant. The seizure list dated 4....
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....xtra judicial confession, according to the prosecution, consists of the narration of incidents on the crucial day by recreating the crime scenario in the presence of the Executive Magistrate (who was not examined on account of his death) and PWs 25, 26 & 28. The High Court having held in the first sentence of paragraph 11 that "the extra judicial confession which was made in the presence of the police as stated by PWs 25, 28 & 29 was inadmissible in evidence in view of the provisions of Sections 25 & 26 of the Evidence Act", proceeded to say in the second sentence as follows: "In this case, we find that the accused persons had also made extra judicial confession before PW22 and subsequently, there was a verification of the said confession, when the accused in presence of the above witnesses\027PWs 28 and 29 had shown the place, where the incident took place and reconstructed the scene of occurrence by pointing the place and the manner in which the incident took place." The High Court proceeded on the wrong premise that there was an extra judicial confession before PW22 (Additional C.J.M). The High Court overlooked the fact that the confession recorded on 6.7.1999 by PW22 was a ....
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....hey did really hear what the accused had said. Otherwise there was no scope for PW 26 deposing that Parmanand confessed to the effect that he carried Keshav some 200 meters south west of the Jamun tree and it was there that he had killed Keshav and put the body beneath the boat in a canal. Thus the confession attributable to Jitu Pegu, as per the prosecution case, has been attributed to the appellant Parmanand as if Parmanand had killed Keshav and concealed the dead body beneath the boat. It is not the prosecution case that Parmanand had confessed of having killed Keshav. Thus PW 26 completely contradicts PW 25. The reason perhaps is that none of them heard the accused clearly while they were allegedly narrating the incident to the Executive Magistrate. Further, according to PW 25, the police also took part in questioning the accused along with the Executive Magistrate. The Deputy Superintendent of Police was also present on that occasion. In these circumstances a serious doubt arises as to the voluntariness of the confession said to have been made in the presence of the Executive Magistrate and others. After PW 26 made a somersault of the prosecution case, PW 28 had taken care to....
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....irement for acting on a confession is satisfied but that is not the end of the matter. The Court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavor of the Court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the Court should bear in mind, the principle enunciated in Pyare Lal vs. State of Rajasthan [(1963) Supp.1 SCR 689] that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, "on the evidence and the circumstances in a particular case it may appear to the Court that there was a threat, inducement or promise, though the said fact is not strictly proved". Having thus reached a finding as to voluntary nature of a confession, the truth of the confession should then be tested by the Court. The fact t....
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....h Vs. State of Punjab (S) AIR 1957 SC 216 (C), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession." The learned Judges then highlighted the difference between retracted confession and the evidence of an approver or an accomplice. "Though under Section 133 of the Evidence Act, a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to Section 114 lays down that a Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another. In such circumstances it is absol....
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.... particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan's case. The decision of this Court in Chandrakant Chimanlal Desai vs. State of Gujarat [(1992) 1 SCC 473] has created some difficulty in understanding the law which is otherwise so well settled. The learned Judges imported the observations which were made in Kashmira Singh vs. State of Madhya Pradesh [AIR 1952 SC 159] in the context of evidentiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the head-note in the AIR which opens up with the sentence "The confession of an accused person" However, in the text of the judgment it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co-accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed in Kashmira Singh's case that such a confession cannot be made the foundation of a conviction and can only be used in support of oth....
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....e appellant has not been substantiated by any evidence on record which is in line with the confessional statement. Therefore, the corroboration even in the limited sense does not exist in the case of the appellant. What is more, the cause of death as disclosed in the confession does not fit into the opinion of the medical expert. PW23, the Senior Medical Officer at Dhemaji Civil Hospital, who did the postmortem examination of the dead body of Robindra Taid on 2.7.1999, clearly stated that the death was caused on account of the head injury. There was no ligature mark over the body which indicates that there was no strangulation. He noticed hematoma in the middle line of scalp and a fracture in the mid part of the parietal bone. He also found blood around the mid part where the fracture was caused. There was also blood clot on the upper surface of the brain. He did not find any abnormality in other parts of the body. In the confessional statement, the appellant is alleged to have stated that he killed Robindra by strangulation, which is clearly inconsistent with medical evidence. If the confession was voluntary and the accused wanted to tell the truth out of repentance, he would hav....