# Murari Lal & Anr. (In Jail) v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-30
- **Case number:** Capital Case No. 2 of 2020
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/murari-lal-anr-in-jail-v-state-of-u-p-anr-49200
- **Pages:** 8

## Headnote

A. Criminal Law - Indian Penal Code,
1860 - Section 302 - Murder - Sentence
of Death - Evidence Act,1872 - Section
24
-
Extra
judicial
confession
-
Reliability - Extra judicial confession is a
weak piece of evidence as it can be
easily
procured
whenever
direct
evidence
is
not
available
-
An
extrajudicial confession, if voluntary,
true & inspire confidence and made in a
fit state of mind, can be relied upon by
the court - conviction can be based on a
voluntarily confession but the rule of
prudence
requires
that
wherever
possible it should be corroborated by
independent material evidence (Para 25)
Criminal Law - Indian Penal Code,1860 -
Section 302 - Murder - Extra judicial
confession - extra judicial confession was
made by the accused before the P.W. 6,
who used to work as a ear cleaner - that
witness held to be unreliable because the
accused appellants were not known to
him - they would not have made such
extra judicial confession before a person
who was alien to them - extra judicial
confession
made
by
the
accused
appellants before doctor wholly unreliable
because the same have been recorded in
similar language and at the relevant time
the accused appellants were in police
custody - how and in what circumstance
extra
judicial
confession
has
been
recorded, the prosecution utterly failed to
do so - Recovery - on the basis of
confessional statement made by accused,
one 'Salwar' allegedly belonging to the
deceased was seized from the sugarcane
field - the prosecution failed to prove the
recovery in accordance with law - neither
the memorandum of the accused was
recorded nor the recovery was supported
by any independent witness - recovery
made from an open space, which is
accessible to everyone - prosecution failed
to prove the charges beyond reasonable
doubt - reference for affirmation of the
death sentence, rejected (Para 24)

Allowed. (E-5)

List of Cases cited:

Ramanand @ Nandlal Bharti Vs St. of U.P.
Criminal Appeal Nos. 64-65 of 2022 13.10.2022

## Text

218 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Order dated 07.07.2000, this
Court does not see any reason to interfere
with the order under challenge.

(18.) The writ petition as such being
devoid of merit is dismissed. The parties to
bear their own costs.
----------
(2023) 2 ILRA 218
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Capital Case No. 2 of 2020
With
Reference No. 02 of 2020

Murari Lal & Anr. ...Appellants (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
Sri V.P. Srivastava (Sr. Advocate), Sri
Rajeev Nayan Singh, Sri Lav Srivastava, Sri
Vijendra Pal

Counsel for the Opposite Parties:
Sri J.K. Upadhyay, A.G.A.

A. Criminal Law - Indian Penal Code,
1860 - Section 302 - Murder - Sentence
of Death - Evidence Act,1872 - Section
24
-
Extra
judicial
confession
-
Reliability - Extra judicial confession is a
weak piece of evidence as it can be
easily
procured
whenever
direct
evidence
is
not
available
-
An
extrajudicial confession, if voluntary,
true & inspire confidence and made in a
fit state of mind, can be relied upon by
the court - conviction can be based on a
voluntarily confession but the rule of
prudence
requires
that
wherever
possible it should be corroborated by
independent material evidence (Para 25)
Criminal Law - Indian Penal Code,1860 -
Section 302 - Murder - Extra judicial
confession - extra judicial confession was
made by the accused before the P.W. 6,
who used to work as a ear cleaner - that
witness held to be unreliable because the
accused appellants were not known to
him - they would not have made such
extra judicial confession before a person
who was alien to them - extra judicial
confession
made
by
the
accused
appellants before doctor wholly unreliable
because the same have been recorded in
similar language and at the relevant time
the accused appellants were in police
custody - how and in what circumstance
extra
judicial
confession
has
been
recorded, the prosecution utterly failed to
do so - Recovery - on the basis of
confessional statement made by accused,
one 'Salwar' allegedly belonging to the
deceased was seized from the sugarcane
field - the prosecution failed to prove the
recovery in accordance with law - neither
the memorandum of the accused was
recorded nor the recovery was supported
by any independent witness - recovery
made from an open space, which is
accessible to everyone - prosecution failed
to prove the charges beyond reasonable
doubt - reference for affirmation of the
death sentence, rejected (Para 24)

Allowed. (E-5)

List of Cases cited:

Ramanand @ Nandlal Bharti Vs St. of U.P.
Criminal Appeal Nos. 64-65 of 2022 13.10.2022

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. Sri V.P. Srivastava, learned Senior
Advocate assisted by Sri Rajeev Nayan
Singh, appearing for the appellants and Sri
J.K. Upadhyay, learned AGA for the State.

2. This death reference was made to
this Court under Section 366 of the
Criminal Procedure Code, 1973 (in short
'Cr.P.C.')
for
confirmation
of
death
2 All. Murari Lal & Anr. Vs. State of U.P. & Anr.
219
sentence awarded to the appellants. The
death reference and capital case are heard
together and this judgement will govern
both the capital case as well as the death
reference.

3. This death reference and the capital
case arise out of the judgement and order
dated 10.1.2020 passed by the Additional
Sessions Judge/Special Judge, POCSO Act,
Court No. 9, Bareilly in Criminal Case No.
753 of 2019 (C.I.S. No. 1500286/2018) (State
vs. Murari Lal & another), arising out of Case
Crime No. 50 of 2016 under Section 302/34,
201, 376D of I.P.C., Section 6 of POCSO Act
and Section 3(2)(v) of the Scheduled Castes
&
Scheduled
Tribes
(Prevention
of
Atrocities) Act, P.S. Nawabganj, District -
Bareilly and sentencing them to death
sentence with fine of Rs.50,000/- under
Section 302 I.P.C., in default of payment of
fine, one year additional imprisonment, 7
years imprisonment with fine of Rs.10000/-
under Section 201 I.P.C., in default of
payment of fine, three months additional
imprisonment, life imprisonment with fine of
Rs.50000/- under Section 376D I.P.C., in
default of payment of fine, one year
additional imprisonment, life imprisonment
with fine of Rs.50000/- under Section 3(2)(v)
of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, in default of
payment of fine, one year additional
imprisonment, and life imprisonment with
fine of Rs.50000/- under Section 6 of the
POCSO Act, in default of payment of fine,
one year additional imprisonment.

4. As per the prosecution case, on
29.1.2016 at about 12 in the Noon the
deceased, who was a minor girl aged 12 years,
left for the field and thereafter, she did not
return. She was searched initially in the village
itself by her family members and the
information about her missing was also
communicated to her father Hemraj (P.W. 1),
who at the relevant point of time had gone to
another village namely Idgaon. At about 4
p.m., some children informed P.W. 1 that one
dead body is lying in a 'Lahi' field and when
P.W. 1 and other villagers reached at the spot,
they found the naked body of the deceased and
they also noticed injuries on her private part.

5. Information was given to the police
and based on written report (Ex.Ka-1), first
information report (Ex.Ka-2) was registered
against unknown persons under Section 302,
201, 376 I.P.C. read with Section 4 of POCSO
Act. Inquest on the dead body was conducted
on 29.1.2016 at 5.30 p.m. vide Ex.Ka-4 and
the body was sent for postmortem, which was
conducted on 30.1.2016 by Dr. Neelam Arya
(P.W. 5) vide Ex.Ka-5. The Autopsy Surgeon
has found following injuries :

"1. Contusion 1.0 x 1.0 cm. over
right side neck, 4.00 cm. below right ear.

2. Contusion 5.0 x 4.0 cm. over the
front & left side neck upper part over Thyroid
Cartilage.

3. Abrasion 1.0 x 0.1 cm. over the
left side neck, 3.0 cm. below left sides angel of
Mandible.

4. Abrasion 0.3 x 0.3 cm. over the
left side face - cheek area 4.0 cm. away from
angle of mouth.

5. Contusion 2.0 x 0.6 cm. over
nostril upper lip with swelling.

6. Contusion 3.0 x 1.0 cm. over
lower lip with swelling.

7. Blood stained discharge tickle
down from Vulva & Vagina with blood stained
present on Vulva.

8. Hymen lacerated at 7 O'clock
position edges of Hymen are swelling bleeding
present.

9. Abrasion 14.0 x 5 cm. cm. On
the back of left forearm & hand involving
wrist joint 7.0 cm. below elbow.
220 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Abrasion 1.0 x 0.3 cm. over
back of left forearm 3.0 cm. below elbow."

6. While framing charge, the trial
Judge has framed the charge against the
accused appellants under Section 302/34,
201, 376D of I.P.C., Section 6 of POCSO
Act and Section 3(2)(v) of the Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act.

7. So as to hold the accused appellants
guilty, prosecution has examined 11
witnesses. Whereas one defence witness
namely, Mahendra Lal has also been
examined. Statement of accused appellants
were recorded under Section 313 Cr.P.C.
wherein they pleaded their innocence and
false implication and claimed trial.

8. By the impugned judgement and
order, the trial Judge has convicted the
appellants under Section 302/34, 201, 376D
of I.P.C., Section 6 of POCSO Act and
Section 3(2)(v) of the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)
Act. Hence, this appeal.

9. Counsel for the appellants submits :

(i) that there is no eyewitness
account to the incident and the appellants
have been convicted solely on the basis of
weak circumstantial evidence;

(ii) that on the basis of confessional
statement made by Murari Lal, one 'Salwar'
allegedly belongs to the deceased was seized
on 31.1.2016 from the sugarcane field.
However, the prosecution has failed to prove
this recovery in accordance with law because
neither the memorandum of the accused was
recorded nor the recovery has been supported
by any independent witness. Moreover, this
recovery has been made from an open space,
which is accessible to everyone;

(iii)
that
on
the
disclosure
statement
of
the
accused
Umakant
Gangwar on 1.2.2016, one 'Chadar' (bed
sheet) was allegedly seized vide Ex.Ka-13
from the wheat field. But here also the
memorandum was not recorded nor the
recovery has been supported by any
independent witness and most importantly
it had been made from the open agricultural
field accessible to everyone;

(iv)
that
in
the
medical
examination of the accused appellants, no
injury was found on their body whereas as
per the allegation, the prosecutrix was 12
years old girl and in such eventuality,
accused appellants ought to have suffered
some injuries;

(v) that in the bed sheet, no blood
was found whereas in the 'Salwar' allegedly
belonging to deceased, human blood was
found but origin of the same has not been
proved as the group testing of the blood has
not been done;

(vi)
that
vaginal
slide
was
prepared but there is no FSL report on
record;

(vii) that as per the prosecution
case, extra judicial confession was made by
the accused appellants before the P.W.
6/Ram Chandra, who used to work as a ear
cleaner but this witness is wholly unreliable
because the accused appellants were not
known to him and why would they make
such extra judicial confession before a
person who was alien to them and there
was absolutely no occasion or reason for
the appellants to make said extra judicial
confession before the respondent no. 6.
Moreover,
the
alleged
extra
judicial
confession was made on 30.1.2016 at 10
a.m. and till that time the complicity of the
accused appellants in commission of
offence was not known to the prosecution;

(viii) that likewise, the so called
extra judicial confession made by the
2 All. Murari Lal & Anr. Vs. State of U.P. & Anr.
221
accused appellants before the P.W. 7/Dr.
Jagveer Singh vide Ex.Ka-6 & Ex.Ka-8 are
wholly unreliable because the same have
been recorded in similar language and at
the relevant time the accused appellants
were in police
custody. There was
absolutely no occasion for the accused
appellants to make the so called extra
judicial confession as recorded by the
Doctor. Furthermore, the extra judicial
confession is recorded in a column where
the description of the incident is to be given
and as to how and in what circumstance
extra judicial confession has been recorded,
the prosecution has utterly failed to do so;

(ix) that according to P.W. 2/Smt.
Moti, mother of the deceased, she saw the
accused Murari Lal walking fast from the
place of occurrence whereas the said
statement has not been supported by the P.W.
3/Smt. Ramkali, who was accompanying the
P.W. 2;

(x) that the appellants have been
convicted solely on the basis of surmises and
conjectures; and

(xi) that if the entire prosecution
evidence is considered as it is, the present
becomes a case of no evidence, yet not only
the appellants have been convicted under
Section 302 of I.P.C., but most surprisingly
they have been awarded death sentence.

10. On the other hand, supporting the
impugned judgement, it has been argued by
the State counsel:

(i) that conviction of the appellants
is in accordance with law and there is no
infirmity in the same;

(ii) that a minor girl aged about 12
years had been first subjected to rape and
then murdered and importantly the evidence
clearly indicates that it is the appellants who
committed the said crime; and

(iii) that at times from the evidence
inference has to be drawn and due
appreciation has to be given to the evidence
collected by the prosecution and considering
this legal position, the conviction of the
appellants is in accordance with law and there
is no infirmity in the same.

11. We have heard learned counsel for
the parties and perused the record.

12. P.W.1/Hemraj is the father of the
deceased and the informant. Firstly, he has
stated that his daughter went missing, and
during search a dead body was found in the
'lahi' field wearing a 'kurta' and he had
apprehension that his daughter was subjected
to rape and murder by some unknown person.
He said that it is he who lodged the FIR. In
cross-examination, he has stated that nothing
was recovered in his presence nor any
formality in writing to this effect was done.
His thumb impressions were taken by the
police on a plain paper.

13. P.W.2/Smt. Mori is the wife of
P.W.1 and mother of the deceased. She has
stated that on the date of occurrence, she
and her daughter had gone to the
agricultural field to collect sugarcane
leaves and thereafter, she had sent the
deceased to home with a bundle of leaves
and asked her to return back. However,
when she did not return, she was being
searched and later, her dead body was
found in the field. She has further stated
that she saw the accused appellant Murari
Lal coming out from the place of
occurrence walking very fast. P.W.3/Smt.
Rajkali is the grand mother of the deceased
and has turned hostile.

14. P.W.4/Anil Kumar is the police
constable and has assisted the prosecution.
222 INDIAN LAW REPORTS ALLAHABAD SERIES

15. P.W.5/Dr. Neelam Arya is one of
the member of the panel of Doctors, who
conducted the post-mortem of the dead
body and she proved the postmortem
examination report vide Ex.Ka-5.

16. P.W.6/Ram Chandra is a ear
cleaner of the village before whom the
alleged extra judicial confession is said to
have been made by the accused persons. He
has stated that the accused appellants, with
folded hands, made a request to him for
helping them and they also stated that they
had committed a big mistake by raping the
prosecutrix and then murdering her.

17. In cross- examination P.W. 6 has
stated that the accused persons were not
known to him previously. He further
admitted that he was hard of hearing and
because the police personnel are known to
him, he assured the accused appellants that
he would get the matter resolved with the
police.

18. P.W.7/Dr. Jagveer Singh is a
radiologist before whom the alleged extra
judicial confession were made by both the
accused vide Ex.Ka-6 and Ex.Ka-8. It is
relevant to note here that the so called extra
judicial confession written by this witness
are same in nature and language is almost
identical.

19. P.W.8/Inspector R.K.Singh is the
Investigating
Officer
and
has
duly
supported the prosecution case.

20. P.W.9/Dr. Sanjay Kumar was a
member of the panel of Doctors, who
conducted the post mortem on the person of
the deceased, has given the details of the
injuries found on the body of the deceased
vide his report Ex.Ka-5. P.W.10/S.S.I.
Mukesh Kumar conducted inquest and
initial investigation. P.W.11/C.O. Naresh
Kumar is the second Investigating Officer,
who after concluding the investigation filed
the charge sheet.

21. D.W.1/Mahendra Pal, the owner
of the land where the dead body of the
deceased was found, has shown his
ignorance about seizer of the dead body
from his field.

22. The law in respect of conviction
based on circumstantial evidence is very
clear. Reliance can be placed upon the
judgment of the Supreme Court in
Ramanand alias Nandlal Bharti v. State of
U.P. Criminal Appeal Nos. 64-65 of 2022
decided on October 13, 2022, wherein it
has been held:

"47. ...It is settled principle of law
that an accused can be punished if he is
found guilty even in cases of circumstantial
evidence provided, the prosecution is able
to prove beyond reasonable doubt the
complete chain of events and circumstances
which
definitely
points
towards
the
involvement and guilty of the suspect or
accused, as the case may be. The accused
will not be entitled to acquittal merely
because there is no eye witness in the case.
It is also equally true that an accused can be
convicted on the basis of circumstantial
evidence subject to satisfaction of the
expected principles in that regard.

48. A three Judge Bench of this
Court in Sharad Birdhichand Sarda v. State
of Maharashtra, (1984) 4 SCC 116, held as
under:

"152. Before discussing the cases
relied upon by the High Court we would
like to cite a few decisions on the nature,
character and essential proof required in a
criminal case which rests on circumstantial
evidence alone. The most fundamental and
2 All. Murari Lal & Anr. Vs. State of U.P. & Anr.
223
basic decision of this Court is Hanumant v.
State of Madhya Pradesh [AIR 1952 SC
343 : 1952 SCR 1091 : 1953 Cri LJ 129] .
This case has been uniformly followed and
applied by this Court in a large number of
later decisions uptodate, for instance, the
cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh [(1969) 3 SCC 198 : 1970
SCC (Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625 : AIR
1972 SC 656] . It may be useful to extract
what Mahajan, J. has laid down in
Hanumant case [AIR 1952 SC 343 : 1952
SCR 1091 : 1953 Cri LJ 129] :

It is well to remember that in
cases
where
the
evidence
is
of
a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established, and all the facts so established
should
be
consistent
only with
the
hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave
any
reasonable
ground
for
a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused.

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 Cri LJ 1783] where
the following 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."

23. Now if the above principle of law
is applied in the present case, the position
comes out in the following manner:

24. The present case is based upon
circumstantial
evidence,
however,
circumstance put forth by the prosecution
does not indicate that only one conclusion
can be drawn in favour of the prosecution,
rather it is contrary where circumstances
indicate towards innocence of the accused.
As per evidence, prosecution has failed to
224 INDIAN LAW REPORTS ALLAHABAD SERIES
prove its case completely in its favour and
the evidence is inconsistent only with the
hypothesis of the guilt of the accused. The
evidence is not conclusive in nature and
does not indicate the possible hypothesis
except the one to be proved. From the
evidence, it is apparent that the chain of
evidence is not complete governing the
basic principles of the cases based on
circumstantial evidence. The recovery of
articles has not been proved as per the
requirement of law and likewise the
medical report. In the present case, based
on extra judicial confession of the accused
before PW-7, it cannot be said that the
prosecution has succeeded in proving its
case beyond all reasonable doubts.

25. Further the law in respect of extra
judicial confession is also very clear and
reliance can be placed upon the case of
Ramanand (supra) wherein it has been
held:

"82. Extra judicial confession is a
weak piece of evidence and the court must
ensure that the same inspires confidence
and is corroborated by other prosecution
evidence. It is considered to be a weak
piece of evidence as it can be easily
procured whenever direct evidence is not
available. In order to accept extra judicial
confession, it must be voluntary and must
inspire confidence. If the court is satisfied
that the extra judicial confession is
voluntary, it can be acted upon to base the
conviction.

83. Considering the admissibility
and evidentiary value of extra judicial
confession, after referring to various
judgments, in Sahadevan and Another v.
State of Tamil Nadu, (2012) 6 SCC 403,
this Court held as under: "15.1. In
Balwinder Singh v. State of Punjab [1995
Supp (4) SCC 259 : 1996 SCC (Cri) 59]
this Court stated the principle that: (SCC p.
265, para 10) "10. An extrajudicial
confession by its very nature is rather a
weak type of evidence and requires
appreciation with a great deal of care and
caution. Where an extrajudicial confession
is surrounded by suspicious circumstances,
its credibility becomes doubtful and it loses
its importance." x x x x 15.4. While
explaining the dimensions of the principles
governing the admissibility and evidentiary
value of an extrajudicial confession, this
Court in State of Rajasthan v. Raja Ram
[(2003) 8 SCC 180 : 2003 SCC (Cri) 1965]
stated the principle that: (SCC p. 192, para
19)

"19. An extrajudicial confession,
if voluntary and true and made in a fit state
of mind, can be relied upon by the court.
The confession will have to be proved like
any other fact. The value of the evidence as
to confession, like any other evidence,
depends upon the veracity of the witness to
whom it has been made." The Court further
expressed the view that: (SCC p. 192, para
19)

"19. ... Such a confession can be
relied upon and conviction can be founded
thereon
if
the
evidence
about
the
confession comes from the mouth of
witnesses who appear to be unbiased, not
even remotely inimical to the accused, and
in respect of whom nothing is brought out
which may tend to indicate that he may
have a motive of attributing an untruthful
statement to the accused...."
x x x xxx xxx

15.6. Accepting the admissibility
of the extrajudicial confession, the Court in
Sansar Chand v. State of Rajasthan [(2010)
10 SCC 604 : (2011) 1 SCC (Cri) 79] held
that: (SCC p. 611, paras 2930) "29. There is
no absolute rule that an extrajudicial
confession can never be the basis of a
conviction, although ordinarily an extra
2 All. The Oriental Insurance Company Ltd. Vs. Smt. Kalloo & Ors.
225
judicial confession should be corroborated by
some other material. [Vide Thimma and
Thimma Raju v. State of Mysore [(1970) 2
SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj
v. State of U.P. [AIR 1959 SC 902 : 1959 Cri
LJ 1219] , Sivakumar v. State [(2006) 1 SCC
714 : (2006) 1 SCC (Cri) 470] (SCC paras 40
and 41 : AIR paras 41 and 42), Shiva Karam
Payaswami Tewari v. State of Maharashtra
[(2009) 11 SCC 262 : (2009) 3 SCC (Cri)
1320] and Mohd. Azad v. State of W.B.
[(2008) 15 SCC 449 : (2009) 3 SCC (Cri)
1082] ]""

84. It is well settled that conviction
can be based on a voluntarily confession but the
rule of prudence requires that wherever possible
it should be corroborated by independent
evidence. Extra judicial confession of accused
need not in all cases be corroborated. In Madan
Gopal Kakkad v. Naval Dubey and Another,
(1992) 3 SCC 204, this Court after referring to
Piara Singh and Others v. State of Punjab,
(1977) 4 SCC 452, held that the law does not
require that the evidence of an extra judicial
confession should in all cases be corroborated.
The rule of prudence does not require that each
and every circumstance mentioned in the
confession
must
be
separately
and
independently corroborated.

85. The sum and substance of the
aforesaid is that an extra judicial confession by
its very nature is rather a weak type of evidence
and requires appreciation with great deal of care
and caution. Where an extra judicial confession
is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its
importance like the case in hand. The Courts
generally look for an independent reliable
corroboration before placing any reliance upon
an extra judicial confession."

26. From the facts of the present case and
the law laid down by various Courts, it is
apparent that in the present case there is hardly
any legally admissible evidence against the
appellants and we have no hesitation in holding
that the prosecution has failed to prove the
charges beyond reasonable doubt for which the
accused-appellants were tried and therefore, the
appellants are entitled to the benefit of doubt.

27. We, therefore, have no hesitation in
rejecting the reference for affirmation of the
death sentence and in allowing the appeal of
the appellants against the order of their
conviction and sentence. The appeal of the
appellants is allowed. The reference sent by
the trial court to confirm the death penalty is
rejected. The judgment and order of the trial
court dated 10.1.2020 is set aside. The
appellants are acquitted of all the charges for
which they have been tried and convicted.
The appellants shall be released from jail
forthwith, unless wanted in any other case,
subject to compliance of the provisions of
Section 437-A Cr.P.C. to the satisfaction of
the trial court.

28. Let a copy of this order along with the
record of the trial court be sent to the court
below for information and compliance.
----------
(2023) 2 ILRA 225
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 637 of 2005
And
FAFO No. 643 of 2005

The Oriental Insurance Company Ltd.
 ...Appellant
Versus
Smt. Kallo & Ors. ...Respondents

Counsel for the Appellant:
Sri Mithilesh Kumar Tiwari