IN THE SUPREME COURT OF
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1050 OF 2005
PANCHO … APPELLANT
CRIMINAL APPEAL NO.1222 OF 2005
PRATHAM … APPELLANT
(SMT.) RANJANA PRAKASH DESAI, J.
1. These two appeals, by special leave, can be disposed of by a common judgment as they arise out of the same facts and challenge the same judgment and order dated
2. A1-Pratham, A2-Pancho and A3-Gajraj were tried by the Additional Sessions Judge,
3. Shortly stated the case of the prosecution is that PW-1 Jagat Singh, brother of deceased Kartar Singh lodged FIR (Ex-PA) on
4. It appears that till
and ran away with the tractor so as to reach Paramendra via
Barsana. A1-Pratham is further stated to have told PW-4 Nathi Singh that they took the tractor to accused-Bhago and narrated the entire incident to him and asked him to sell the tractor and thereafter they went back to their house. A1- Pratham is further stated to have told PW-4 Nathi Singh that they came back after a couple of days and came to know that the tractor could not be sold. Therefore, they removed some parts of the tractor and left it on the road near Bharatpur. As desired by A1-Pratham, he was produced before PW-24 Inspector Raghbir Singh on
Pratham and interrogated him. According to PW-24 Raghbir Singh, during interrogation, A1-Pratham told him that about 3-4 months back, he along with accused Shishu and other accused had snatched a tractor, shot the driver of that tractor, thrown his body in the field and taken the tractor with them. On the same day, accused-Shishu was arrested by PW-24 Raghbir Singh.
5. According to the prosecution, on
three pieces of ropes are stated to have been recovered.
6. Though the accused were charged under Section 396 of the IPC, learned Sessions Judge was of the view that conviction of the three accused cannot be recorded under Section 396 of the IPC as only four persons had participated in the crime. Learned Sessions Judge was of the view further that A2-Pancho could be convicted under Section 302 of the IPC simplicitor and A1-Pratham and A3-Gajraj could be convicted under Section 302 read with Section 34 of the IPC. According to him, all the accused were also liable to be convicted under Section 392 of the IPC. So far as A2-Pancho is concerned, learned Sessions Judge sentenced him to death for offence under Section 302 of the IPC as according to him,it was a heinous crime which would have wide ramification on the life of agricultural community. He sentenced A1-Pratham and A3-Gajraj to undergo imprisonment for life under Section 302 read with Section 34 of the IPC. All the accused were sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 392 of the IPC.
7. While dealing with the reference under Section 366 of the Criminal Procedure Code (for short, “the Code”) and the criminal appeal filed by A1-Pratham and A3-Gajraj, the High Court commuted the sentence of death imposed on A2- Pancho to imprisonment for life. The High Court confirmed the sentence of life imprisonment imposed on A1-Pratham and A3-Gajraj. The High Court maintained the sentence imposed on the accused for offence under Section 392 of the IPC.
8. We have heard counsel for the parties. We also requested Mr. Lalit, learned senior counsel to assist us. In deference to our request, Mr. Lalit has, as usual, ably assisted us.
9. There is no dispute about the fact that deceased Kartar Singh died on account of firearm injuries. Evidence of PW- 17 Dr. Jagmohan Mittal, who did the postmortem on the dead body of deceased Kartar Singh is clear on that point.
10. Extra-judicial confession made by A1-Pratham is the main plank of the prosecution case. It is true that an extrajudicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar1, this court while dealing with an extra-judicial confession held that an extra-judicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether extra-judicial confession of A1-Pratham inspires confidence and then find out whether there are other cogent circumstances on record, to support it.
11.We have already referred to the evidence of PW-4 Nathi Singh before whom A1-Pratham is stated to have confessed that A2-Pancho had shot dead deceased Kartar Singh with country made pistol. PW-24 Inspector Raghbir Singh has stated that A1-Pratham confessed that they had shot dead deceased Kartar Singh. He does not say that A1-Pratham told him that A2-Pancho had fired at deceased Kartar Singh. The incident is stated to have occurred in the night intervening
under Section 313 of the Code, A1-Pratham has denied that he made any such statement. This retraction further makes a dent in the alleged extra-judicial confession.
12. A2-Pancho was arrested on
13.Apart from the pistol which is stated to have been recovered from A2-Pancho, the prosecution has relied on certain other discoveries made at the instance of the accused. On
14. As against A2-Pancho, the prosecution is relying mainly on the extra-judicial confessional statement of A1-Pratham. The question which needs to be considered is what is the evidentiary value of a retracted confession of a co-accused?
15.The law on this point is well settled by catena of judgments of this court. We may, however, refer to only two judgments to which our attention is drawn by Mr. Lalit, learned senior counsel. In Kashmira Singh v. The State of
Chukerbutty,4 this court observed that proper way to approach a case involving confession of a co-accused is, first, to marshal 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 it is not necessary to call the confession in
aid. This court further noted that 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.
16. In Haricharan Kurmi v. State
the court. This court observed that even then Section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused. Thus, though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. This court further observed that Section 30 merely enables the court to take the confession into account. It is, not obligatory on the court to take the confession into account. This court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right. This Court clarified that
though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
17. Applying the above principles to the case on hand, we find that so far as A2-Pancho is concerned, except the evidence of alleged belated discovery of certain articles at his instance, which we have already found to be doubtful, there is no other evidence on record to connect him to the offence in question. When there is no other evidence of sterling quality on record establishing his involvement, he cannot be convicted on the basis of the alleged extra-judicial confession of the co-accused A1-Pratham, which in our opinion, is also not credible. Once A1-Pratham’s extrajudicial
confession is obliterated and kept out of consideration, his conviction also cannot be sustained because we have come to the conclusion that the alleged discovery of articles at his instance cannot be relied upon. There is thus, no credible evidence to persuade us to uphold the conviction of A1-Pratham.
18. In view of the above, we set aside the impugned judgment and order. A1-Pratham and A2-Pancho are on bail. Their bail bonds stand discharged.
19. Appeals are disposed of in the aforestated terms.
(RANJANA PRAKASH DESAI)