Summary
The appellant's conviction under Sections 302/34 and 201/34 IPC, resting entirely on circumstantial evidence (motive, extra-judicial confessions, last-seen evidence and recoveries), was set aside. The informant gave contradictory versions on motive; the co-accused's confession was made in the presence of the police and was inadmissible under Sections 25 and 26 of the Evidence Act; the recoveries were doubtful and the FSL report found no blood on the weapons; the extra-judicial confessions were a police creation. The appellant was acquitted and the benefit extended to her non-appealing son.
Issues
- Whether the circumstantial evidence of motive, extra-judicial confessions, last-seen-together and recoveries formed a complete chain establishing the appellant's guilt beyond reasonable doubt.
- Whether a confessional statement of a co-accused narrated by a witness, made in the presence of police officials, is admissible in evidence.
- Whether the benefit of acquittal should be extended to a co-accused who did not appeal.
Provisions considered
- Sections 25 and 26, Indian Evidence Act, 1872Section 25 bars proof of a confession made to a police officer and Section 26 bars proof of a confession made while in police custody unless made in the immediate presence of a Magistrate. The confession attributed to the co-accused Veena by PW-12 was made in the presence of police officials and was therefore hit by both sections; the trial court erred in allowing it to be reproduced in the witness's testimony. (¶¶ 20, 21)
- Section 27, Indian Evidence Act, 1872Only so much of the information from an accused in custody as relates distinctly to a fact discovered may be proved. The witness admitted that the memos were signed after the recovery of the axe, which demolished the investigating officer's theory that the disclosure statements preceded the recoveries and indicated that all documents were prepared at one go. (¶ 21)
- Sections 302 and 201 read with Section 34, Indian Penal Code, 1860The appellant and two co-accused were convicted of murder and causing disappearance of evidence with common intention; the Court found that the prosecution failed to prove even one incriminating circumstance and quashed the convictions. (¶¶ 1, 2, 35, 37)
Held
- In a case resting purely on circumstantial evidence the prosecution must prove the chain of incriminating circumstances beyond all manner of doubt in accordance with the five principles laid down in Sharad Birdhichand Sarda. (¶¶ 11, 12)
- The theory of motive was not established: the informant gave diametrically opposite versions (forcible occupation and tenancy) of the appellant's possession of the deceased's house, introduced an allegation of an extra-marital affair with a co-accused he did not even know, and admitted that the deceased frequently stayed overnight in the same house, which negates enmity; the deceased's wife, the best witness on these matters, was not examined. (¶¶ 13, 14, 15, 16, 17, 18, 19)
- A confessional statement of an accused made in the presence of a police officer cannot be admitted in evidence except to the extent permitted by Section 27, and then only where the disclosure leads to discovery of an incriminating fact; the trial court gravely erred in allowing the co-accused's inculpatory version to be reproduced through PW-12. (¶¶ 20, 21)
- The witness who took the weapons out of the sewerage did not acknowledge the presence of any of the women accused when he did so; the recoveries allegedly made pursuant to disclosure statements therefore fall under a grave cloud of doubt and cannot be believed. (¶¶ 22, 23, 24)
- The last-seen and extra-judicial-confession witness PW-15 was a planted chance witness with no reason to be in the locality, no affinity with the accused that could explain a confession to him, and his statement was recorded after a significant delay; his testimony was discarded. (¶¶ 25, 26, 27)
- An extra-judicial confession is weak evidence to be examined with great care and caution (Sahadevan principles); the coincidence that all three accused approached unconnected persons to confess and seek production before the police shows that the theory was a story created by the police, and one of the confession witnesses was not even examined. (¶¶ 29, 30, 31)
- The FSL report found no human blood on the weapons, which were therefore not sent for serology, and no blood grouping was done on any article; the recoveries thus provide no link with the murder, and the courts below erred in relying on them despite the negative FSL report. (¶¶ 32, 33, 34, 36)
- Where the prosecution evidence is unreliable and the entire case is discarded, the Court may suo motu extend the benefit of acquittal to a non-appealing co-accused, particularly where lack of finances or assistance explains the failure to appeal (Sahadevan); the son of the appellant, who had legal-aid counsel and did not appeal, was also acquitted. (¶¶ 38, 39)
Result
Appeal allowed; High Court judgment dated 24.05.2024 and trial court judgment dated 14.01.2003 quashed; the appellant acquitted and to be released forthwith if not wanted in any other case; the non-appealing co-accused Rajbir also acquitted and to be released; pending applications disposed of.