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.”
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.””
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.”
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.”
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.”
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.”
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 herculean effort to make it crystal clear that extra judicial confession of a co-accused cannot be relied on as substantive evidence. The Court also made it indubitably clear that the extra judicial confession of a co-accused is only a corroborative piece of evidence. So it merits no reiteration that all the courts must pay heed to what the Apex Court has held so very!