While setting the record straight, the Supreme Court in a most laudable, landmark, learned and latest judgment titled Subramanya vs State of Karnataka in Criminal Appeal No. 242 of 2022 and cited in 2022 LiveLaw (SC) 887 that was pronounced as recently as on October 13, 2022 has minced just no words to observe that the extra judicial confession of a co-accused could not be relied on as substantive evidence. It must be noted that the Bench of Apex Court comprising of CJI UU Lalit and Justice JB Pardiwala observed that:
The confession of a co-accused could be used only in support of the evidence and could not be made a foundation of a conviction. Very rightly so!

At the very outset, this remarkable, robust, rational, refreshing and recent judgment authored by Justice JB Pardiwala for a Bench of the Apex Court comprising of CJI UU Lalit and himself sets the ball in motion by first and foremost putting forth in para 1 that:
This statutory criminal appeal is at the instance of a convict accused charged with the offence of murder of one Kamalamma (deceased) and is directed against the judgment and order of conviction passed by the High Court of Karnataka dated 02.07.2019 in the Criminal Appeal No. 473 of 2013 by which the High Court allowed the acquittal appeal filed by the State of Karnataka against the judgment and order of acquittal passed by the Principal Sessions Judge, Chikmagalur dated 20.12.2012 in the Sessions Case No. 59 of 2011 and held the appellant herein guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘the IPC’). The High Court sentenced the appellant herein to undergo life imprisonment with fine of Rs. 25,000/ and in the event of default of payment of fine to undergo further simple imprisonment for a period of six months.

As we see, the Bench then states in para 2 that:
The appellant herein along with two other co-accused, namely, Gowri alias Gowramma wife of late Nagaraj and Seetharam Bhat son of late Nagabhatt were put to trial in the Sessions Case No. 59 of 2011 for the offences punishable under Sections 120-B, 302 , 379 and 201 read with Section 34 of the IPC. All the three accused were put to trial in the court of Principal Sessions Judge, Chikmagalur. The original accused No. 2, namely, Gowri (acquitted) was born in the wedlock of one Manjappanaika and his first wife. The deceased, namely, Kamalamma was the second wife of the Manjappanaika. Gowri (original accused No. 2) happens to be the step daughter of the deceased Kamalamma. After the demise of Manjappanaika his immovable properties were divided between the deceased Kamalamma and Gowri (A-2). In the wedlock of Manjappanaika and the deceased two daughters were born, namely, Sugandha (PW 1) and Sujatha. The deceased Kamalamma used to reside all alone at the village Horabylu adjacent to the house of the original accused No. 2 Gowri. Gowri is a widow and at the relevant point of time was staying along with her two children. It is the case of the prosecution that Gowri (A-2) had an illicit relationship with the appellant herein. The deceased Kamalamma was highly opposed to such illicit relationship and used to reprimand both, the appellant and Gowri.

Simply put, the Bench states in para 24 that:
Thus, the trial court, upon appreciation of the oral as well as documentary evidence, came to the conclusion that the prosecution had failed to prove its case against the accused persons beyond reasonable doubt and accordingly, vide the judgment and order dated 20.12.2012, acquitted the appellant herein and the other two co-accused of all the charges.

As an inevitable fallout, the Bench then discloses in para 25 that:
The State of Karnataka being dissatisfied with the judgment and order of acquittal passed by the trial court challenged the same by filing the Criminal Appeal No. 473 of 2013 in the High Court of Karnataka. The High Court upon reappreciation of the entire oral as well as the documentary evidence on record dismissed the acquittal appeal so far as the original accused No. 2 Gowri alias Gowramma is concerned thereby affirming her acquittal. However, the appellant herein came to be convicted for the offence of murder punishable under Section 302 of the IPC and was sentenced to undergo life imprisonment with fine of Rs. 25,000/. Appellant was also convicted for the offence punishable under Section 201 read with Section 34 of the IPC and was sentenced to undergo simple imprisonment for five years with fine of Rs. 5,000/. The original accused No.3 Seetharam Bhat came to be convicted for the offence punishable under Section 201 read with Section 34 of the IPC and was sentenced to undergo simple imprisonment for a period of three years with fine of Rs. 5,000/ and in case of default to undergo further simple imprisonment for a period of two months.

Do note, the Bench then reveals in para 26 that:
We are informed that the original accused No. 3 Seetharam Bhat accepted the conviction and has undergone the sentence. The original accused No. 3 thought fit not to file any appeal before this Court.

Needless to say, the Bench then mentions in para 27 that:
It is the appellant herein (original accused No. 1), who is here before this Court with the present appeal.

Quite aptly, the Bench opined in para 34 that:
The High Court should have been mindful of the fact that it was dealing with an acquittal appeal filed by the State under Section 378 of the Cr.P.C. It would be useful to review the approach to be adopted while deciding an appeal against the acquittal by the trial court.

In hindsight, the Bench then points out in para 35 that:
In one of the earliest cases on the powers of the High Court, in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council, in Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (193334) 61 IA 398 : AIR 1934 PC 227 (2), considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under:

……But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.

It was stated that the appellate court has full powers to review and to reverse the acquittal.

Further, the Bench then adds in para 36 that:
Following the Sheo Swarup (supra) this Court in Chandrappa and Others v. State of Karnataka reported in (2007) 4 SCC 415 held as under:

16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

In yet another case law, the Bench then observes in para 37 that:
In Atley v. State of Uttar Pradesh, AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao, J. (as his Lordship then was) in Sanwat Singh and Others v. State of Rajasthan, AIR 1961 SC 715 in para 9 held as under:

9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup’s case, 61 Ind App 398 : (AIR 1934 PC 227 (2)) afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) substantial and compelling reasons, (ii) good and sufficiently cogent reasons, and (iii) strong reasons are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.

Interestingly enough, the Bench then points out in para 38 that:
The need for the aforesaid observations arose on account of the observations of the majority in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : 1956 Cri LJ 426, which stated that for the High Court to take a different view on the evidence there must also be substantial and compelling reasons for holding that the trial court was wrong.

On similar lines, the Bench then observes in para 39 that:
M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235, is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as his Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused is not certainly weakened by the fact that he has been acquitted at his trial.

In yet another case law, it is mentioned in para 40 that:
In Shivaji Sahabrao Bobade and Another v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033, in para 6 , Krishna Iyer, J., observed as follows :

6. …..In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents…..

Going ahead, the Bench then states in para 41 that:
This Court in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972, in para 7 spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

7. …..While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions…..

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In other words, there should not be an acquittal of the guilty or a conviction of an innocent person.

While then citing a very relevant case law, the Bench specifies in para 42 that, In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 : 1997 SCC (Cri) 992, in para 16, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the trial court:

16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.

It is worth noticing that the Bench then enunciates in para 43 that:
This Court in Chandrappa (supra) highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal in the following words:

42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence 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 trial court.

(5) 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.

It is worth noting that the Bench then points out in para 44 that:
In Nepal Singh v. State of Haryana, (2009) 12 SCC 351, this Court reversed the judgment in the State of Haryana v. Nepal Singh, CRA-D No. 99-DBA of 1993, order dated 21 - 7-1997 (P&H), of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.

Of course, the Bench then specifies in para 45 that:
The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarised as follows:

45.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of Uttar Pradesh v. Sahai and Others, (1982) 1 SCC 352]. Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. P.S.R. Sadhanantham and Another, (1979) 2 SCC 297]. An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh and Another, 1991 Supp (1) SCC 35 : 1990 Cri LJ 2274].

45.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:

45.2.1 . Where the approach or reasoning of the High Court is perverse:

(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh and Others, (1983) 1 SCC 393]. For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. v. Shanker, 1980 Supp SCC 489 : 1981 SCC (Cri) 428].

(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were interested witnesses. [State of U.P. v. Hakim Singh and Others, (1980) 3 SCC 55].

(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh and Others, (1983) 1 SCC 393].

(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v. P.S.R. Sadhanantham and Another, (1979) 2 SCC 297].

(e) Where the High Court applied an unrealistic standard of implicit proof rather than that of proof beyond reasonable doubt and therefore evaluated the evidence in a flawed manner. [State of Uttar Pradesh v. Ranjha Ram and Others, (1986) 4 SCC 99].

(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan Singh v. Satpal Singh and Others, (1990) 1 SCC 445].

(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish motive. [State of Andhra Pradesh v. Bogam Chandraiah and Another, (1986) 3 SCC 637].

45.2.2. Where acquittal would result in gross miscarriage of justice:

(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh and Others, 1989 Supp (1) SCC 288] or based on extenuating circumstances which were purely based in imagination and fantasy [State of Uttar Pradesh v. Pussu alias Ram Kishore, (1983) 3 SCC 502].

(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610].

Be it noted, the Bench then notes in para 46 that:
Having gone through the entire impugned judgment passed by the High Court, we do not find any satisfaction recorded therein that the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. In the absence of such satisfaction, the High Court, in our opinion, should not have disturbed a well reasoned judgment of acquittal, passed by the trial court. We shall assign reasons hereafter why the High Court should not have disturbed the acquittal recorded by the trial court.

To be sure, the Bench then mandates in para 53 that:
An 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 the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. 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 for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.

While continuing in a similar vein, the Bench then observes in para 54 that, 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.

While referring to a recent and relevant case law, the Bench then states in para 55 that:
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 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 extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial 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 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 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.…

15.6. Accepting the admissibility of the extra-judicial 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 29-30)

29. There is no absolute rule that an extra-judicial 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 [(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] ] [Emphasis supplied].

Quite significantly, the Bench hastens to add in para 56 stating that:
It is well settled that conviction can be based on a voluntary 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.

Most forthrightly, the Bench then very rightly minces no words to hold in para 57 that:
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.

While referring to a very famous case law, the Bench then expounds in para 58 that:
This Court in Kashmira Singh v. The State of Madhya Pradesh reported in AIR 1952 SC 159, had observed as under:

The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. [para 8, 10].

It would be instructive to note that the Bench then points out in para 59 that, In the case on hand, the High Court committed a serious error in making the confessional statement as the basis and thereafter going in search for corroboration. The High Court concluded that the confessional statement is corroborated in material particulars without first considering and marshalling the evidence against the appellant convict herein excluding the conviction altogether from consideration. As held in the decision cited above, only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion.

More to the point, the Bench then also points out in para 60 that:
The trial court has assigned cogent reasons for not accepting the evidence of the PW7, before whom the confession is alleged to have been made, and rightly so, the High Court has not given any convincing reasons as to why the PW7 who was discarded by the trial court should be relied on.

No less significant is what is then stated in para 66 that:
The case of Ram Chandra (supra) before this Court, as reported in AIR 1957 SC 381 was also of murder. It was a case in which corpus delecti was not traceable and proof of murder solely depended on a retracted confession of an accused. The Court was of the view that although corpus delecti was not found, yet there could be a conviction if reliable evidence, direct or circumstantial, of the commission of murder was available. However, a confession of a co-accused was not in itself a substantive evidence. The courts below had relied on a confession of accused Ram Chandra against a co-accused, Ram Bharosey, for holding him guilty of the offences charged against him. This Court held, It is rightly urged that under Section 30, Evidence Act confession of a co-accused can only be taken into consideration but is not in itself substantive evidence. This Court, however, was satisfied that even excluding the confession as substantive evidence there was enough material against the appellant Ram Bharosey to find him guilty of offence of criminal conspiracy to commit offences charged. To come to the ratio, we find that the view was affirmed that confession of a co-accused could only be considered but could not be relied on as substantive evidence.

It would be vital to note that the Bench then mentions in para 68 that:
The case in hand is not one of a confession recorded under Section 15 of the TADA Act. On the language of sub-section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him. So, it is implicit that the same can be considered against all those, tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against the co-accused, abettor or conspirator charged and tried in the same case along with the accused. The accepted principle in law is that the confessional statement of an accused recorded under Section 15 of the TADA Act is a substantive piece of evidence against his co-accused, provided the accused concerned are tried together. This is the fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence.

It is worth paying full attention that the Bench then notes in para 78 that, If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.

It cannot be glossed over that the Bench then lays bare in para 84 that:
What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, I may get discovered the murder weapon used in the incident. This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.

While citing a very relevant case law, the Bench then observes in para 85 that, In Dudh Nath Pandey v. State of U.P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant’s knowledge as to where the weapon was kept.

As a corollary, the Bench then specifies in para 86 that:
Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.

It definitely merits mentioning that the Bench then points out in para 87 that, In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:

18. …..It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [ AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. [Emphasis supplied].

In addition, the Bench then states in para 88 that:
Mr. V.N. Raghupathy, the learned counsel for the State would submit that even while discarding the evidence in the form of various discovery panchnamas the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh and Another v. State of Karnataka, (2005) 7 SCC 714:

9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8….. [Emphasis supplied].

What’s more, the Bench then points out in para 89 that:
In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.

While endorsing what the Trial Court held, the Bench then hastened to add in para 92 that:
Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive p;roof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. The trial court rightly disbelieved the motive to commit the crime as the evidence in this regard is absolutely hearsay in nature.

Furthermore, the Bench then while continuing in a similar vein points out in para 93 that:
The fact that we have ruled out the circumstances relating to the making of an extra judicial confession and the discovery of the weapon of offence etc. as not having been established, the chain of circumstantial evidence snaps so badly that to consider any other circumstance, even like motive, would not be necessary.

Quite naturally, the Bench then holds in para 94 that:
Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon, clothes and dead body of the deceased at the instance of the appellant convict herein can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same.

Moving on, the Bench then holds in para 95 that:
For all the foregoing reasons, we have reached to the conclusion that the High Court committed error in holding the appellant convict herein guilty of the offence of murder.

As a sum total, the Bench then also holds in para 96 that:
In the result, this appeal succeeds and is hereby allowed. The impugned judgment and order of conviction passed by the High Court is hereby set aside.

Still more, the Bench then directs in para 97 that:
The appellant convict shall be set at liberty forthwith, if not required in any other case.

Finally, the Bench then concludes by holding in para 98 that:
Pending application, if any, also stands disposed of.

In conclusion, we thus see that the Apex Court has made a lot of herculean effort to make it crystal clear that the extra judicial confession of a co-accused cannot be relied on as substantive evidence. The Court has also made it indubitably clear that the extra judicial confession of a co-accused is only a corroborative piece of evidence. So it thus merits no reiteration that all the courts must pay heed to what the Apex Court has held so very clearly, cogently and convincingly in this leading case!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh