# SAHADEVAN & ANR v. STATE OF TAMIL NADU

- **Citation:** [2012] 4 S.C.R. 366
- **Court:** Supreme Court of India
- **Decided:** 2012-05-08
- **Case number:** Criminal Appeal No. 1405 of 2008
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahadevan-anr-v-state-of-tamil-nadu-28405
- **Pages:** 31

## Headnote

Penal Code, 1860 - s. 302 - Murder - Circumstantial
evidence -
Two witnesses had allegedly last seen the
C deceased with accused - Extra-judicial confession - Recovery
of articles at the instance of accused - Conviction by courts
below - Appeal by two of the three accused -
Held:
Prosecution failed to prove the case beyond reasonable doubt
- There are contradictions in the statement of the witnesses
D - Confessional statements are not worth credence - Last seen
theory not proved -
Time of death of deceased not
established - Motive not proved - Order of conviction is
unsustainable - Benefit of the judgment extended to the nonappealing accused as he had been attributed the same role
E as the other two accused - Constitution of India, 1950 -
Arlie/es 136, 142 and 21 - Administration of Justice.
Evidence:
Extra-judicial Confession - Evidentiary value - Held: It
F is a weak piece of evidence - In circumstantial evidence
when prosecution relies on extra-judicial confession, court
should examine it with greater degree of care and caution -
Principles which would make it an admissible piece of
evidence capable of forming the basis of conviction -
G Explained.
H
Circumstantial Evidence - Theory of last seen together
-: Evidentiary value - Held: The theory can raise the
suspicion, but independently, it is not sufficient to lead to a
366
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
367
finding of guilt -
The theory should be applied taking the
A
prosecution case into consideration in its entirety.
Evidence Act, 1872 - s. 27 - Recovery statement -
Admissibility in evidence - Explained.
Administration of Criminal Justice - Criminal case - In
8
appeal accused acquitted - Extention of benefit of acquittal
order to non-appealing accused - Access to justice is
essential feature of administration of justice - Concept of fair
trial would take within its ambit, the right to be heard by
appellate court - If accused is unable to file appeal, it would C
amount to denial of access to justice to such accused -
Where the court disbelieves the entire occurrence or where
role of the non-appealing accused is identical to that of the
appealing accused or where the ends of justice demand, the
court will be well within its jurisdiction to return the finding of D
acquittal and even suo moto extend the benefit to the nonappealing accused - Powers of Supreme Court under Articles
136, 142 and rights of the accused under article 21 are wide
enough to do complete justice to the parties - Constitution
of India, 1950 - Articles, 136, 142 and 21.
E
Appellants-accused Nos. 2 and 3 and accused No. 1
were prosecuted u/ss. 1208 and 302 IPC for having
caused death of a person. The prosecution case was that
A-1 was the brother of PW2 (wife of deceased). He had
grievance against with the deceased because, he used
F
to torture PW2. In order to make life of PW-2 peaceful, he
entered into a criminal conspiracy with A-2 and A-3 to
commit murder of the deceased. PWs 4 and 5 had last
seen the accused and the deceased together. Next day
dead body of the deceased was found. After 4 days, the
G
accused persons came to PW6 and made confession to
him in the presence of one person to the effect that on
account of the family problem, they murdered the
deceased by strangulating him and after putting kerosene
on him, set the body on fire. The confessional statement
H
368
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A was reduced into writing (Ex.P-4). Thereupon, the
accused were arrested by the police. On the basis of the
statement u/s. 27 of Evidence Act, Police recovered M06
(TVS moped), M07 (bottle smelling kerosene) and MOS
(matchbox). The accused in their statement u/s. 313
B Cr.P.C. denied the incident and retracted from their extrajudicial confession. Trial court acquitted the accused u/
s. 1208 IPC, but convicted them u/s. 302 IPC. High Court
upheld the order of the trial court: The present appeal was
preferred by A-2 and A-3. A-1 did not prefer any appeal.
c
Allowing the appeal and extendin

## Text

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A
B
[2012] 4 S.C.R. 366
SAHADEVAN & ANR.
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 1405 of 2008)
MAY 08, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860 - s. 302 - Murder - Circumstantial
evidence -
Two witnesses had allegedly last seen the
C deceased with accused - Extra-judicial confession - Recovery
of articles at the instance of accused - Conviction by courts
below - Appeal by two of the three accused -
Held:
Prosecution failed to prove the case beyond reasonable doubt
- There are contradictions in the statement of the witnesses
D - Confessional statements are not worth credence - Last seen
theory not proved -
Time of death of deceased not
established - Motive not proved - Order of conviction is
unsustainable - Benefit of the judgment extended to the nonappealing accused as he had been attributed the same role
E as the other two accused - Constitution of India, 1950 -
Arlie/es 136, 142 and 21 - Administration of Justice.
Evidence:
Extra-judicial Confession - Evidentiary value - Held: It
F is a weak piece of evidence - In circumstantial evidence
when prosecution relies on extra-judicial confession, court
should examine it with greater degree of care and caution -
Principles which would make it an admissible piece of
evidence capable of forming the basis of conviction -
G Explained.
H
Circumstantial Evidence - Theory of last seen together
-: Evidentiary value - Held: The theory can raise the
suspicion, but independently, it is not sufficient to lead to a
366
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
367
finding of guilt -
The theory should be applied taking the
A
prosecution case into consideration in its entirety.
Evidence Act, 1872 - s. 27 - Recovery statement -
Admissibility in evidence - Explained.
Administration of Criminal Justice - Criminal case - In
8
appeal accused acquitted - Extention of benefit of acquittal
order to non-appealing accused - Access to justice is
essential feature of administration of justice - Concept of fair
trial would take within its ambit, the right to be heard by
appellate court - If accused is unable to file appeal, it would C
amount to denial of access to justice to such accused -
Where the court disbelieves the entire occurrence or where
role of the non-appealing accused is identical to that of the
appealing accused or where the ends of justice demand, the
court will be well within its jurisdiction to return the finding of D
acquittal and even suo moto extend the benefit to the nonappealing accused - Powers of Supreme Court under Articles
136, 142 and rights of the accused under article 21 are wide
enough to do complete justice to the parties - Constitution
of India, 1950 - Articles, 136, 142 and 21.
E
Appellants-accused Nos. 2 and 3 and accused No. 1
were prosecuted u/ss. 1208 and 302 IPC for having
caused death of a person. The prosecution case was that
A-1 was the brother of PW2 (wife of deceased). He had
grievance against with the deceased because, he used
F
to torture PW2. In order to make life of PW-2 peaceful, he
entered into a criminal conspiracy with A-2 and A-3 to
commit murder of the deceased. PWs 4 and 5 had last
seen the accused and the deceased together. Next day
dead body of the deceased was found. After 4 days, the
G
accused persons came to PW6 and made confession to
him in the presence of one person to the effect that on
account of the family problem, they murdered the
deceased by strangulating him and after putting kerosene
on him, set the body on fire. The confessional statement
H
368
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A was reduced into writing (Ex.P-4). Thereupon, the
accused were arrested by the police. On the basis of the
statement u/s. 27 of Evidence Act, Police recovered M06
(TVS moped), M07 (bottle smelling kerosene) and MOS
(matchbox). The accused in their statement u/s. 313
B Cr.P.C. denied the incident and retracted from their extrajudicial confession. Trial court acquitted the accused u/
s. 1208 IPC, but convicted them u/s. 302 IPC. High Court
upheld the order of the trial court: The present appeal was
preferred by A-2 and A-3. A-1 did not prefer any appeal.
c
Allowing the appeal and extending the benefit of the
judgment to the non-appealing accused, the Court
HELD: 1.1. The present case is a case based upon
circumstantial evidence. In case of circumstantial
D evidence, the onus lies upon the prosecution to prove the
complete chain of events which shall undoubtedly point
towards the guilt of the accused. Furt:iermore, in case of
circumstantial evidence, where the prosecution relies
upon an extra-judicial confession, the court has to
E examine the same with a greater degree of care and
caution. 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
F extra-judicial confession, it must ensure that the same
inspires confidence and is corroborated by other
prosecution evidence. If, however, the extra-judicial
confession suffers from material discrepancies or
inherent improbabilities and does not appear to be
G cogent as per the prosecution version, it may be difficult
for the court to base a conviction on such a confession.
In such circumstances, the court would be fully justified
in ruling such evidence out of consideration. [Para 12)
[380-F-H; 381-A-B]
H
Ba/winder Singh v. State of Punjab 1995 Supp. (4) SCC
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
369
259; 1995 (5)Suppl. SCR 10; Pakkirisamy v. State of T.N.
A
(1997) 8 sec 158; Kavita v. State of T.N. (1998) 6 sec 108:
1998 (3) SCR 902; State of Rajasthan v. Raja Ram (2003) 8
SCC 180: 2003 (2) Suppl. SCR 445; Aloke Nath Dutta v.
State of WB. (2007) 12 SCC 230: 2006 (10) Suppl. SCR
662; Sansar Chand v. State of Rajasthan (2010) 10 SCC
B
604: 2010 (12) SCR 583; Rameshbhai Chandubhai Rathod
v. State of Gujarat (2009) 5 SCC 740; Sk. Yusuf v. State of
WB. (2011) 11 SCC 754: 2011 (8) SCR 83; Pancho v. State
of Haryana (2011) 10 SCC 165: 2011 (12) SCR 1173 - relied
on.
c
1.2. The principles which would make an extrajudicial confession an admissible piece of evidence
capable of forming the basis of conviction of an accused
are: (i) The extra-judicial confession is a weak evidence
by itself. It has to be examined by the court with greater D
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 E
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. These precepts F
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. [Para 22] [384-B-G]
1.3. The various factors bring out serious
deficiencies in the veracity, credence and evidentiary
value of Exhibit P4 (confessional statement). The accused
G
in their statement under Section 313 CrPC, have denied
the very execution of Ext. P-4. Ext. P-4 is stated to have H
been made by the accused persons to PW-6, in the
370
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
presence of one person who has not been examined by
the prosecution to prove the recording of Ext. P-4 and to
provide greater credence to this document. In Ext. P-4, it
is stated that the deceased ill-treated his wife, PW-2, and
that was the motive and, in fact, essentially the cause for
B the accused to murder the deceased. The whole
emphasis is upon the bitter relationship between the
husband and wife. The very basis of Ext. P-4 falls to the
ground when PW-2 in her statement, stated that her
husband was employed in a rolling mill and that there
C was no dispute between them. Further, she has
categorically stated that she had never stated anything
with regard to dispute between her husband and
accused No.1 to the police and that there was no
property dispute amongst them. Upon this, PW-2 was
0
declared hostile by the prosecution with the leave of the
court. Even in her cross-examination, nothing could be
brought out to establish the fact of alleged cruelties
inflicted by the deceased upon her and there being any
dispute between them. The statements of PW4 and PWS
is at variance with Exhibit P4 and hardly find
E corroboration from other prosecution evidence and also
suffers from discrepancies. Thus, the contents of Exhibit
P4 are belied by the prosecution evidences itself and,
therefore, it is not safe for the court to rely upon such
extra-judicial confession. Exhibit P4 has to be ruled out
F from the zone of consideration. [Paras 25, 26 and 29] [386H; 387-A-E; 388-C-D]
1.4. Undoubtedly, the last seen theory is an important
event in the chain of circumstances that would
G completely establish and/or could point to the guilt of the
accused with some certainty. But this theory should be
applied while taking into consideration the case of the
prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being
H so last seen. With the development of law, the theory of
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
371
last seen has become a definite tool in the hands of the A
prosecution to establish the guilt of the accused. The
court has taken the consistent view that where the only
circumstantial evidence taken resort to by the
prosecution is that the accused and deceased were last
seen together, it may raise suspicion but it is not B
independently sufficient to lead to a finding of guilt.
[Paras 31 and 34] [389-B-C; 390-B-C]
Arjun Marik v. State of Bihar 1994 Supp.(2) SCC 372:
1994 (2) SCR265; State of Kamataka v. M. V. Mahesh (2003)
3 SCC 353: 2003 (2) SCR 553; State of U.P. v. Satish (2005) C
3 SCC 114: 2005 (2) SCR 1132 - relied on.
1.5. The statement of PW5 does not indicate the time
as to when he had seen the deceased and with which of
the accused. He expressed inability to even identify them. D
PW4 though claims to have seen them but has given a
time which itself is doubtful. Even this cannot be stated
with certainty that at that particular time the deceased
was alive or dead. Moreover, according to the doctor,
PW7, the deceased had died about 27 to 28 hours before E
the autopsy. The autopsy, was admittedly, performed
upon the deceased on 10th of July, at about 2 o'clock.
That implies that the deceased would have died
sometime during the morning of 9th July, while according
to PW4, he had seen the deceased along with A-1 after 2 F
p.m. on 9th July, 2002. In light of the abovementioned
contradictions and the uncertainty of evidence, the view
taken by the High Court that on the theory of last seen,
the accused can be convicted, cannot be sustained. This
fact is uncorroborated and suffers from apparent G
contradictions and discrepancies as well. [Paras 30, 35
and 36] [388-G-H; 389-A; 390-D, E-F]
1.6. In the present case, the recoveries have been
effected upon the statement of the accused u/s. 27 of the
Evidence Act, whereby the accused stated that he had H
372
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
hidden kerosene bottle, a match box and TVS Moped
bearing No.50 TN 38 7344 and could get them recovered.
According to the post mortem report Ext.P-10 as well as
the forensic report Ext.P-22, kerosene or its smell was
neither found on the body nor the belongings of the
B deceased and, therefore, it creates a little doubt as to
whether the recovered items were at all and actually used
in the commission of crime. However, as far as TVS
moped, M0-6 is concerned, there is sufficient evidence
to show that it was used by the accused but the other
c contradictions and discrepancies overshadow this
evidence and give advantage to the accused. The
prosecution has not been able to establish even the time
of death of the deceased. Absence of kerosene oil on the
body of the deceased and articles taken into custody
D from the body of the deceased, the contradictions in the
statement of the witnesses, the fact that PW2 has not
supported the case of the prosecution and PW5 not being
able to even identify the accused, lend support to the
pleas raised on behalf of the accused and create a dent
in the story of the prosecution. In view of the cumulative
E effect of all the aspects, the judgment of the High Court
is unsustainable. The prosecution has failed to prove its
case beyond reasonable doubt. [Paras 38 and 39] [391F; 392-A-F]
F
State of Rajasthan v. Bhup Singh (1997) 10 SCC 675:
1997 (1) SCR 190 - relied on.
1.7. Where the court finds that the entire case of the
prosecution suffers from material contradictions, the most
,.....
crucial evidence is not reliable, there are definite and
...:J
material flaws in the case of the prosecution and the
Police has failed to discharge its duties at different steps,
in that event, it will be difficult for the court to leave the
non-appealing accused to his fate. Under the Indian
criminal jurisprudence, an accused is presumed to be
H
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
373
innocent until proven guilty and his liberty can be
A
curtailed by putting him under imprisonment by due
process of law only. If the entire case of the prosecution
has been found to be unreliable and the prosecution, as
a whole, has not been able to prove its case beyond
reasonable doubt, then the benefit should accrue to all
B
the accused persons and not merely to the accused who
have preferred an appeal against the judgment of
conviction. [Para 40) (393-B-E]
Raja Ram v. State of Madhya Pradesh (1994) 2 SCC
568: 1994 (2) SCR 114; Bijoy Singh v. State of Bihar (2002)
C
9 SCC 147: 2002 (3) SCR 179; Pawan Kumar v. State of
Haryana (2003) 11 SCC 241: 2003 (1) Suppl. SCR 71 O;
Madhu v. State of Kera/a (2012) 2 SCC 399; Gurucharan
Kumar v. State of Rajasthan (2003) 2 SCC 698: 2003 (1)
SCR 60 - relied on.
D
1.8. It is very difficult to set any universal principle
which could be applied to all cases irrespective of the
facts, circumstances and the findings returned by the
court of competent jurisdiction. It will always depend
E
upon the facts and circumstances of a given case. Where
the court finds that the prosecution evidence suffers from
serious contradictions, is unreliable, is ex facie neither
cogent nor true and the prosecution has failed to
discharge the established onus of proving the guilt of the
F
accused beyond reasonable doubt, the court will be well
within its jurisdiction to return the finding of acquittal and
even suo moto extend the benefit to a non-appealing
accused as well, more so, where the court even
disbelieves the very occurrence of the crime itself. Of G
course, the role attributed to each of the accused and
other attendant circumstances would be relevant
considerations for the court to apply its discretion
judiciously. [Para 41) (395-B-E]
2.1. There can be varied reasons for a non-appealing
H
374
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A accused in not approaching the appellate court. If, for
compelling and inevitable reasons, like lack of finances,
absence of any person to pursue his remedy and lack of
proper assistance in the jail, an accused is unable to file
appeal, then it would amount to denial of access to justice
B to such accused. The concept of fair trial would take
within its ambit the right to be heard by the appellate
court. It is hardly possible to believe that an accused
would, out of choice, give up his right to appeal,
especially in a crime where a sentence of imprisonment
c for life is prescribed and awarded. Fairness in the
administration of justice system and access to justice
would be the relevant considerations for Supreme Court
to examine whether a non-appealing accused could or
could not be extended the benefit of the judgment of
0 acquittal. The access to justice is an essential feature of
administration of justice. This is applicable with
enhanced rigour to the criminal jurisprudence. Where the
court disbelieves the entire incident of the occurrence or
where the role of the accused who has not appealed is
E identical to that of the other appealing accused or where
the ends of justice demand, the court would not hesitate
and, in fact, is duty bound, to dispense justice in
accordance with law. [Para 41] [395-F-H; 396-A-B]
2.2. The powers of Supreme Court, in terms of
F Articles 136 and 142 on the one hand and the rights of
an accused under Article 21 of the Constitution on the
other, are wide enough to deliver complete justice to the
parties. These powers are incapable of being curtailed by
such technical aspects which would not help in
G attainment of justice in the opinion of the Court. [Para 41]
[396-B-C]
2.3. In the present case, accused No.1, had been
attributed the same role as the other two accused. All the
accused were stated to have murdered the deceased
H
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
375
and burnt his body. It was a case of circumstantial
A
evidence where not only has the prosecution failed to
prove all the facts and events to complete the chain of
events pointing only towards the guilt of the accused but
there are also definite discrepancies in the case of the
prosecution, contradictions between the statements of B
the material witnesses and the most important piece of
prosecution evidence, the extra-judicial confession
(Exhibit P4), is found entirely unreliable, not worthy of
credence as well as the facts recorded in Exhibit P4 stand
disproved by another prosecution witness herself, i.e., c
PW-2, who, in fact, has lost her husband. [Para 42] [3960-F]
Case Law Reference:
1995 (5) Suppl. SCR 10
Relied on
(1997) 8 sec 158
Relied on
1998 ( 3 ) SCR 902
Relied on
2003 (2) Suppl. SCR 445
Relied on
2006 (10 ) Suppl. SCR 662 Relied on
2010 (12) SCR 583
Relied on
(2009) 5 sec 140
2011 (8) SCR 83
2011 (12) SCR 1173
1994 (2) SCR 265
2003 (2) SCR 553
2005 (2) SCR 1132
1997 (1) SCR 190
1994 (2) SCR 114
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Para 13
o
Para 15
Para 16
Para 17
Para 18
Para 19
Para 20
Para 21
Para 21
Para 31
E
F
Para 32
G
Para 33
Para 37
.
Para 40
H
A
B
376
SUPREME COURT REPORTS
[2012] 4 S.C.R.
2002 (3) SCR 179
Relied on
Para 40
2003 (1) Suppl. SCR 710
Relied on
Para 40
(2012) 2 sec 399
Relied on
Para 40
2003 (1) SCR 60
Relied on
Para 40
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1405 of 2008.
From the Judgment & Order dated 27.9.2006 of the High
C Court of Judicature at Madras in Criminal Appeal No. 160 of
2004.
D
K.V. Viswanathan, B. Ragunath, Jaishree Viswanthan, T.
Sakthi Kumaran, Vijay Kumar, Abhishek Kaushik for the
Appellants.
B. Balaji for the Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
E directed against the judgment of the High Court dated 27th
September, 2006 vide which the High Court affirmed the
judgment of conviction and order of sentence dated 31st
December, 2003 passed by the Trial Court.
2. The prosecution case is that Smt. Kamala!, PW-2 was
F married to one Yoganandan@ Loganathan, the deceased. The
accused No.1, Chandran is the brother of Kamalal (PW2).
accused No.2, Sahadevan, and accused No. 3, Arul Murugan,
were the friends of accused No.1. PW2 was being ill-treated
by Loganathan, her husband. Being her brother, accused No.1
G thought that if he murdered Loganathan, life of his sister would
be peaceful. Thus, accused No.1 and his friends (the other two
accused) entered into a criminal conspiracy to commit murder
of Loganathan. According to PW-5, Karuppuswamy, when he
was talking to one Chinnaswamy at a three star hotel near the
H Neruparichal bus stand at about 10 p.m. on 9th July, 2002, he
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
377
[SWATANTER KUMAR, J.]
saw
Sahadevan
driving
a
TVS
moped
in
A
Povmmanayakkampallayam road, while two other persons
were sitting as pillion riders. The vehicle was proceeding
towards west. After a while, one of them came back and again
went in the same direction on the same vehicle. PW-4, then saw
the deceased, Yoganandan and accused No.1 going in the
8
same direction on the TVS moped at about 2 p.m. Again after
some time, accused No.2 alone came back on the moped. On
10th July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a
dead body in the Pommanayakkanpallam Road, whereupon he
went to PW-1, the Administrative Officer and informed him of C
that fact. PW-1, upon receiving this information, went to the spot
and saw the dead body. He then went to the Perumanallur
Police Station and made a complaint, Ext.P-1, to the SubInspector of Police, Ganesan, PW-8.
3. Upon receipt of the complaint, the police registered a
D
case being Crime No.150 of 2002 for an offence under Section
302 of the Indian Penal Code, 1860 (for short "the IPC") against
unknown accused. The Investigating Officer, PW-9, proceeded
to the scene of occurrence. There he prepared observation
Mahazar, Ext.P-2 and took photographs of the dead body.
E
4. Between 3 p.m. to 6 p.m., he conducted inquest over
the dead body in the presence of Panchayatdars and witnesses
and prepared the inquest report, Ext.P-13. The Senior Civil
Assistant Surgeon, PW7, attached to the Thirupur Government
Hospital, after receiving the requisite information and the body,
performed autopsy on the body of the deceased. She noted
the injuries on the body of the deceased and issued the postmortem certificate, Ext. P-10, expressing the opinion that the
deceased would have died 27 to 28 hours prior to autopsy.
F
G
5. It is further the case of the prosecution that on 14th July,
2002,
when
PW-6,
Muthurathinam,
President of
Kanakampalayam Panchayat was in his office along with one
Shanmugasundaram, all the above-named three accused
came to his office and told him that deceased Loganathan was
H
378
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A the brother-in-law of accused No.1 and on account of family
problem between accused No.1 and the deceased, they
murdered Loganathan by strangulating him and after putting
kerosene on him, set the body of the deceased afire. The
statements made by the accused were reduced to writing by
8 PW-6 and after obtaining their signatures and putting his own
signature thereon he handed over the report, Ext. P-4, to the
Police Station along with the custody of the accused whereupon
PW-9, the Investigating Officer arrested all the accused
persons.
C
6. PW9, on the basis of the confessional statements,
Ext.P-5 to P-7, recovered M0-6 (TVS moped TN 38 7344),
M0-7 (bottle smelling of kerosene). and M0-8 (matchbox). PW9 then sent the MOs for forensic examination along with Ext.
P-15, the requisition therefor. Subsequently, PW-9 was relieved
D of his duties and PW-10 completed the investigation of the case
and filed the chargesheet against all the three accused under
Section 1208 and Section 302 IPC. All the accused were tried
in accordance with law.
E
7. We may notice here that in their statement under
Section 313 Cr.PC, the accused persons denied the incident,
including the alleged extra-judicial confession made by them
and also stated that they were falsely implicated in the case.
However, all the three accused chose not to lead any defence.
F Finally, the prosecution examined as many as 10 witnesses
and produced on record the documentary evidence. The trial
Court vide its judgment dated 31st December, 2003 acquitted
all the accused for an offence under Section 1208 IPC,
however, it convicted all the three accused under Section 302
IPC and awarded them sentence of imprisonment for life and
G fine of Rs. 5,000/-, in default thereof, to undergo rigorous
imprisonment for six months.
H
8. Aggrieved from the judgment of the trial court, the
accused preferred an appeal before the High Court which
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
379
[SWATANTER KUMAR, J.]
came to be dismissed vide order dated 27th September, 2006 A
resulting in the filing of the present appeal.
9. Accused No.2, Sahadevan and accused No.3, Arul
Murugan have preferred the present appeal. Accused No.1,
Chandran has not filed any appeal.
B
10. The learned counsel appearing for these two appellants
has advanced the following arguments while impugning the
judgment under appeal :-
(i)
The case of the prosecution is solely based upon
the extra-judicial confession, which confession is
neither reliable nor has been recorded in
accordance with law. This extra-judicial confession
cannot form the basis of conviction of the appellants
since it has no corroboration and when examined
in light of the settled principles of law, it is
inconsequential, thus, the accused are entitled to
the benefit of doubt.
(ii)
In the present case, there is neither any eye-witness
nor the prosecution has proved the complete chain
of circumstances. The courts have erred in applying
the theory of last seen together to return the finding
of conviction against the accused. There being no
direct evidence of involvement of the appellants in
the commission of the crime, the theory of last seen
together could not be of any assistance to the case
of the prosecution.
(iii)
The recoveries alleged to have been made in
furtherance to the confessional statements of the
accused are inadmissible in evidence and, in any
case, the objects recovered have no link with the
commission of the crime and as such, it would be
impermissible in law to use these recoveries
against the accused for sustaining their conviction.
c
D
E
F
G
H
380
A
B
c
SUPREME COURT REPORTS
[2012] 4 S.C.R.
(iv)
The courts have failed to appreciate the medical
and other evidence placed on record in its correct
perspective. There are serious contradictions in the
medical and ocular evidence, as regards the time
of the death of the deceased. Once, the time of
death of deceased is not established, the whole
story of the prosecution falls to the ground.
(v)
According to the learned counsel for the appellants,
an extra-judicial confession, besides being
inadmissible, is also a very weak piece of evidence
and in a case of circumstantial evidence like the
present, one cannot form a valid basis for returning
the finding of guilt against the accused.
11. To the contra, the learned counsel appearing for the
D
State argued that the extra-judicial confession in the present
case is admissible as it is duly corroborated by other
prosecution evidence, and thus, the courts are fully justified in
convicting the accused. It is also contended that the present
case is of circumstantial evidence and the prosecution has
E
succeeded in establishing every circumstance of the chain of
events that would fully support the view that the accused is guilty
of the offence. The court while dealing with the judgment under
appeal, upon proper appreciation of evidence, thus, has come
to the right conclusion.
F
12. There is no doubt that in the present case, there is no
eye-witness. It is a case based upon circumstantial evidence.
In case of circumstantial evidence, the onus lies upon the
prosecution to prove the complete chain of events which shall
undoubtedly point towards the guilt of the accused.
G
Furthermore, in case of circumstantial evidence, where the
prosecution relies upon an extra-judicial confession, the court
has to examine the same with a greater degree of care and
caution. It is a settled principle of criminal jurisprudence that
extra-judicial confession is a weak piece of evidence. Wherever
H
the Court, upon due appreciation of the entire prosecution
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
381
[SWATANTER KUMAR, J.]
evidence, intends to base a conviction on an extra-judicial
A
confession, it must ensure that the same inspires confidence
and is corroborated by other prosecution evidence. If, however,
the extra-judicial confession suffers from material discrepancies
or inherent improbabilities and does not appear to be cogent
as per the prosecution version, it may be difficult for the court
B
to base a conviction on such a confession. In such
circumstances, the court would be fully justified in ruling such
evidence out of consideration.
13. Now, we may examine some judgments of this Court
C
dealing with this. aspect.
14. In Ba/winder Singh v. State of Punjab [1995 Supp. (4)
SCC 259], this Court stated the principle that an extra-judicial
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.
15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158],
the Court 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 extrajudicial confession.
16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108],
. the Court stated the dictum that there is no doubt that conviction
can be based on extrajudicial confession, but it is well settled
that in the very nature of things, it is a weak piece of evidence.
It is to be proved just like any other fact and the value thereof
depends upon veracity of the witnesses to whom it is made.
17. While explaining the dimensions of the principles
govJrning the admissibility and evidentiary value of an extrajudicial confession, this Court in the case of State of Rajastha~;
v. Raja Ram [(2003) 8 SCC 180] stated the principlE ..• a~ an
D
E
F
G
H
382
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A extra-judicial 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 evidence
as to confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made. The Court,
B further expressed the view that 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
C may tend to indicate that he may have a motive of attributing
an untruthful statement to the accused.
18. In the case of Aloke Nath Dutta v. State of WB. [(2007)
12 SCC 230], the Court, while holding the placing of reliance
on extra-judicial confession by the lower courts in absence of
D other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is
a relevant fact. It can be acted upon. Confession may under
certain circumstances and subject to law laid down by the
E
superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of
the confession; (ii) truthfulness of the confession; (iii)
corroboration.
F
xxx
xxx
xxx
89. A detailed confession which would otherwise be withir,
the special knowledge of the accused may itself be not
sufficient to raise a presumption that confession is a truthful
G
one. Main features of a confession are required to be
verified. If it is not done, no conviction can be based only
on the sole basis thereof."
19. Accepting the admissibility of the extra-judicial
H confession, the Court in the case of Sansar Chand v. State of
Rajasthan ((2010) 10 SCC 604] held that:-
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
383
[SWATANTER KUMAR, J.]
"29. There is no absolute rule that an extra-judicial
A
confession can never be the basis of a conviction, although
ordinarily an extra-judicial confession should be
corroborated by some other material. [Vide Thimma and
Thimma Raju v. State of Mysore, Mulk Raj v. State of
UP., Sivakumar v. State (SCC paras 40 and 41 : AIR
B
paras 41 & 42), Shiva Karam Payaswami Tewari v. State
of Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by
Balwan has been referred to in the judgments of the C
learned Magistrate and the Special Judge, and it has been
corroborated by the other material on record. We are
satisfied that the confession was voluntary and was not the
result of inducement, threat or promise as contemplated
by Section 24 of the Evidence Act, 1872."
20. Dealing with the situation of retraction from the extrajudicial confession made by an accused, the Court in the case
of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5 sec 740], held as under :
D
E
"It appears therefore, that the appellant has retracted his
confession. When an extra-judicial confession is retracted
by an accused, there is no inflexible rule that the court
must invariably accept the retraction. But at the same time
it is unsafe for the court to rely on the retracted confession,
F
unless, the court on a consideration of the entire evidence
comes to a definite conclusion that the retracted
confession is true."
21. Extra-judicial confession must be established to be
true and made voluntarily and in a fit state of mind. The words
G
of the witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis
of conviction, if it passes the test of credibility. The extra-judicial
confession should inspire confidence and the court should find
H
384
SUPREME COURT REPORTS
[2012) 4 S.C.R.
A
out whether there are other cogent circumstances on record to
support it. [Ref. Sk. Yusuf v. State of W B. [(2011) 11 SCC
754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
22. Upon a proper analysis of the above-referred
B
judgments of this Court, it will be appropriate to state the
principles which would make an extra-judicial 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
C
alleged to have been made by the accused.
D
E
The Principles
(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.
F
(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
G
other fact and in accordance with law.
H
23. Having stated the principles which may be kept in mind
by the court while examining the acceptability and evidentiary
value of the extra-judicial confession, we may now refer to the
extra-judicial confession, Ext. P-4, in the case before us. This
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
385
[SWATANTER KUMAR, J.]
extra-judicial confession is alleged to have been made by all
A
the three accused to one Muthurathinam, PW-6. The said Ext.
P-4 reads as under:-
"I am the president of Kanakampalayam today the
14.7.2002 at 9.30 in the morning, when I was at my office
8
along with loclite Shanmugasundaram, a person named
Chandran aged 36 son of Muthu and resident of Navakarai,
Pooluvapatti along with Sahadevan aged 27 s/o
Pannerselvam having a furniture by name Sri Priya
agencies at Boyampalayam Sri Nagar and one Arul
C
Murugan aged 23 s/o Krishnan, belonging to Dindugal and
going to printing work by staying at pandian nagar came
to my office saying that he along with his friends
Sahadevan and Arulmurugan, on 08-07-02 his sisters
husband Yoganathan @ Logananthan who was without
going to work and nor looking after the family and was
D
loitering hereunder an no way to look after his sister
Kamalal and her children and more tortures from her
husband and confessed to her that her husband without
going any work, he is simply loitering hereunder and tried
to him to separate her from her husband. Hence
E
elimination is better than separation and said his sisters
life would be, peaceful, he along with his friends
Sahadevan and Arulmurugan executed a friendly call to him
and told him that they would promised him a job at nrupur.
After 10 p.m. in the night, when there was no traunt on the
F
Neruperchial Bommanaichenpalayam mud road
Sahadevan in his moped with Loganathan sit and also
made Arul Murugan to sit along with and asked to halt at
certain place and again Sahadevan came in moped and
he along with kerosene and match box and went there and
G
parked the moped and were all 4 of them talking enticing
Loganathan with getting him a job at Tirupur he with the
towel which was kept ready put around Loganathan's neck
and he strangled by holding one end of the towel and
Arulmurugan strangling by the other end of the towel. ME!an
H
386
SUPREME COURT REPORTS
[2012] 4 S.C.R.
A
while Sahadevan bought how Loganathan's face and hand
and started face and since due to strangulation
Loganathan fainted and fell into the east side of the ditch
and suddenly and Chandran took kerosene and matchbox
from moped cover which was kept ready, in order to avoid
B
identity burnt him and killed him and after that they all 3
took the moped and they went to Sahadevan house and
parked the vehicle and the same night they went out of
station and a return to Tirupur only yesterday. They came
to know that the police are after then they came to my
c
house
today
and
told
me
what
happened
Shanmugasundram recorded the above averments of
Chandran after that bringing all 3 to you and present them
before you."
24. As per the case of the prosecution, the deceased was
D murdered on 9th -10th July, 2002. The body of the deceased
was taken into custody by the police on 10th July, 2002 itself.
The accused persons were residents of the same village and
there is nothing on record to show that the Police made any
serious attempt to search and arrest them. The Investigating
E Officers, PW-9 and PW-10, have not stated in their statements
that the accused persons were absconding. Four days later,
on 14th July, 2002, the accused persons are alleged to have
gone to the office of PW-6 to make the confession of having
murdered the brother-in-law of accused No.1. Ext. P-4 is
F addressed to the police inspector. If the accused were to make
such a statement to the police itself, then what was the need
for them to first go to PW-6. However, an explanation is
advanced on behalf of the State that the accused only signed
the statement and it was PW-6 who then handed over Ext. PG 4 to the police, along with the custody of the accused persons.
H
25. Further, Ext. P-4 is stated to have been made by the
accused
persons to PW-6,
in the presence of
Shanmugasundaram. The said person, for reasons best known
to the prosecution, has not been examined by the prosecution
SAHADEVAN & ANR. v. STATE OF TAMIL NADU
387
[SWATANTER KUMAR, J.]
to prove the recording of Ext. P-4 and to provide greater
A
credence to this document.
26. Moreover, in their statement under Section 313 CrPC,
the accused have denied the very execution of Ext. P-4. In order
to examine the veracity of this document, the court essentially
8
has to find out the correctness and corroboration of the facts
stated in Ext. P-4 by other prosecution evidence. In Ext. P-4, it
is stated that the deceased ill-treated his wife, PW-2, Kamala!
and that was the motive and, in fact, essentially the cause for
the accused to murder the deceased. The whole emphasis is
upon the bitter relationship between the husband and wife. The
C
very basis of Ext.