14 August 2020

Extra judicial confession of absconded co-accused cannot be used to record conviction

The prosecution is also relying on evidence of PW No.9 Tapan Mandal to establish that the other accused Kishor Shelar had made extra-judicial confession to him about killing of women by both accused. His evidence is also relied to establish that motorcycle brought by Kishor Shelar was produced by him. The other accused was apparently juvenile in conflict with law. The Judgment of trial Court mentions that, the other accused Kishor Shelar is Juvenile in conflict with law against whom the proceeding is going on before juvenile justice Board. The outcome of the proceedings is not known. Thus, the said accused was not before Trial Court in this proceeding. PW No.9 is silent about words 'Hari Om' being written on number plate of motorcycle. PW No.9 has stated that accused No.2 is absconding, although the investigating officer is silent in that regard. According to him he was working on Vadapav stall of father of accused No.2. The motorcycle belongs to relative of accused. The said accused went to Pune and confessed to him. The accused was arrested and PW No.9 was told to deposit motorcycle. The recovery is not at the instance of accused. It is difficult to accept that the accused would go to Pune and make confession to PW No.9. The witness have not stated as to why accused visited him and whether he stayed with him and what was the nature of relationship between them to confess about crime. In any case it is a extra-judicial confession of accused who is not tried in this proceeding. The owner of motorcycle was not examined. Appellant cannot be convicted on the basis of such extra-judicial confession.[Para No.30]
Extra judicial confession of absconded co-accused cannot be used to record conviction

    The extra-judicial confession is weak piece of evidence. The extra judicial confession is questionable in the present case. The witness did not allude the information to anyone about the confession made by the appellant. In the case of Sahadevan V/s State of Tamilnadu, (2012), 6 SCC 403 referring to the aspect of evidentiary value of extra judicial confession it was observed :-
"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspired confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities an 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. In such circumstance, the court would be fully justified in ruling such evidence out of consideration".[Para No.31]

    In another decision of the Hon'ble Supreme Court in the Case of Jagroop Singh V/s State of Punjab (2012) 11, SCC 768 the above decision is referred to it was observed as follows :-
"30. Recently, in Sahadevan V. State of T.N., after referring to the ruiling in Sk. Yusuf V. state of W.B. and Pencho V. State of Haryana, a two Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial confession attains greater credibility and evidentiary value of it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence, that for an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has be proved like any other fact and in accordance with law."[Para No.32]

    In the decision relied upon by the counsel for the appellant in the case of Shailendra Rajdev Paswan and Ors. (Supra) the Apex Court has considered both the aforesaid decisions. The extra-judicial confession was discarded on the ground that in the absence of credible corroboration, above actual occurrence of such confession and the incriminating facts alleged to have been disclosed in the confession, the Court cannot accept that the conviction of the accused can be sustained on the basis of such confession. It was also observed that in the case based on circumstantial evidence the Courts ought to have conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Eachly unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.[Para No.33]

Bombay High Court

Mr.Mohan Janu Jadhav
State Of Maharashtra

Decided on 12/08/2020

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