SC: Extra-Judicial Confession Is A Weak Piece Of Evidence, Independent Corroboration Needed10 min read
Published on: 09 March 2023 at 19:52 IST
While reiterating yet once again that extra-judicial confession is a weak piece of evidence, the Apex Court of India as recently as on March 3, 2023 in a learned, laudable, landmark and latest judgment titled Nikhil Chandra Mondal Vs State of West Bengal in Criminal Appeal No. 2269 of 2010 minced just no words to hold that the credibility of an extra-judicial confession decreases when the surrounding circumstances are doubtful.
Quite naturally, the Bench of Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice Sanjay Karol made it pretty clear that Courts would generally look for an independent reliable corroboration before placing any reliance upon an extra-judicial confession.
We must note that the Apex Court’s observations came in an appeal plea which had challenged the conviction of Nikhil Chandra Mondal in a murder case by the Calcutta High Court.
The High Court had reversed the Trial Court’s judgment acquitting Mondal. The Apex Court while setting aside the High Court’s judgment held clearly that the former had grossly erred in interfering with the Trial Court’s well-reasoned judgment of acquittal.
At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr BR Gavai for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Sanjay Karol sets the ball in motion by first and foremost putting forth in para 1 that, “The appeal challenges the judgment and order dated 15th December 2008 passed by the High Court at Calcutta in Government Appeal No. 38 of 1987, thereby reversing the judgment and order dated 31st March 1987 passed by the Additional Sessions Judge, 4th Court, Burdwan (hereinafter referred to as “the trial court”), vide which the trial court had acquitted the appellant for the charge under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”). Vide the impugned judgment and order, the Division Bench of the High Court convicted the appellant for the offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life and a fine of Rs.2,000/- and in default of payment of fine, to undergo further imprisonment for a period of six months.”
To put things in perspective, the Bench envisages in para 2 that, “The prosecution case, in brief, as could be gathered from the material placed on record is thus:
On 11th March 1983, UD Case No. 7/83 was registered at PS Ketugram that the dead body of an unknown married woman aged about 25 years was lying in a field on the side of the railway track at Ambalgisan Railway Station. The lady appeared to have been murdered by a sharp cutting weapon. On the basis of the aforesaid, Police had begun the investigation.
During investigation, it was revealed that the appellant, accompanied his wife (the deceased) and their son had gone to attend the Fullara Mela organised in Lavpur Gram Panchayat and thereafter, the deceased was alleged to be missing from the said Mela.
During the investigation, it was also revealed that the appellant had confessed before Manick Pal (PW-10), Pravat Kumar Misra (PW11) and Kanai Ch. Saha (PW-12) that he had murdered the deceased with a bhojali (the murder weapon) at that very spot where the body of the deceased was found.”
As it turned out, the Bench then discloses in para 3 that, “Upon completion of the investigation, a charge-sheet came to be filed before the Chief Judicial Magistrate, Burdwan under Section 302 of the IPC against the appellant. The case was committed to the Court of Sessions,”.
“The appellant pleaded not guilty and claimed to be tried. At the conclusion of the trial, the trial court vide judgment and order dated 31st March 1987 acquitted the appellant from the charges levelled against him. Being aggrieved thereby, the State preferred an appeal before the High Court. By the impugned judgment and order, the High Court allowed the appeal and convicted and sentenced the appellant as aforesaid. Hence, the present appeal.”
Needless to say, the Bench then states in para 8 that, “Undisputedly, the present case rests on circumstantial evidence. The law with regard to conviction in the case of circumstance evidence is very well crystalised in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116.”
It is worth noting that the Bench notes in para 9 that, “We may gainfully refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):
“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.””
What’s more, the Bench observes in para 10 that, “It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”,”.
“It has been held that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,”.
“It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
On expected lines, the Bench then states in para 11 that, “It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. In the light of these guiding principles, we will have to consider the present case.”
Be it noted, the Bench notes in para 12 that, “The prosecution case rests basically on the extrajudicial confession alleged to have been made by the appellant before Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai Ch. Saha (PW-12).”
It cannot be glossed over that the Bench enunciates in para 13 that, “The trial court observed that where the prosecution case is entirely based on extra-judicial confession and the prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before whom the alleged confessional statement was made, requires a greater scrutiny to pass the test of credibility.”
It also deserves to be noted that the Bench then lays bare in para 14 that, “The trial court found that the evidence of PWs 10 to 12 were contradictory to each other. It is further to be noted that the trial court had the benefit of witnessing the demeanour of these witnesses. It found the evidence of these witnesses not to be trustworthy.”
Most significantly, the Bench then propounds in para 15 stating that, “It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.
It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403. This Court, in the said case, after referring to various earlier judgments on the point, observed thus:
“16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused.
These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.””
Quite reasonably, the Bench then holds in para 16 that, “As already discussed hereinabove, the trial court found the testimonies of PWs 10 to 12 not to be reliable so as to base the conviction solely on the basis of such testimonies. Unless such a finding was found perverse, an interference therewith would not be warranted.”
Further, the Bench points out in para 17 that, “The Division Bench of the High Court has relied on the recovery of the bloodstained clothes and the weapon which is alleged to have been used by the appellant in commission of the crime.”
Quite forthrightly, the Bench specifies in para 18 that, “The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible to one and all. We find that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra-judicial confession.”
Frankly speaking, we see the Bench then quite commendably points out in para 19 that, “The scope of interference in an appeal against acquittal is very well crystalised. Unless such a finding is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same.”
Most forthrightly, the Bench while citing a recent and relevant case law hastens to add in para 20 expounding that, “Recently, a three-Judges Bench of this Court in the case of Rajesh Prasad v. State of Bihar and Another (2022) 3 SCC 471 has considered various earlier judgments on the scope of interference in a case of acquittal. It held that there is double presumption in favour of the accused,”.
“Firstly, the presumption of innocence that is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the court. It has been further held that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial court.”
Most commendably, the Bench then mandates in para 21 holding that, “We find that the view taken by the trial court could not be said to be either perverse or illegal/impossible to warrant interference. The High Court has grossly erred in interfering with the well-reasoned judgment and order of acquittal passed by the trial court.”
As a corollary, the Bench then holds in para 22 that, “In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The impugned judgment and order dated 15th December 2008 passed by the High Court at Calcutta in Government Appeal No. 38 of 1987 convicting the appellant for the offence punishable under Section 302 of the IPC is quashed and set aside; and
(iii) The judgment and order dated 31st March 1987 passed by the trial court acquitting the appellant from the charges levelled against him is affirmed.”
Furthermore, the Bench then directs in para 23 that, “The appellant is directed to be set at liberty forthwith if not required in any other case.”
Finally, the Bench concludes by holding in para 24 that, “Pending application(s), if any, shall stand disposed of.”
To summarise, the Apex Court has thus made it indubitably clear that an extra-judicial confession is a weak piece of evidence. The Apex Court has also made it crystal clear that an independent corroboration is needed to sustain conviction.
This leads one to conclude that wherever there is extrajudicial confession, an independent corroboration is indispensable and if it is not done that would tilt the dice in favour of the accused who would then be acquitted as we see in this leading case also!