REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1729   OF 2008 (Arising out of SLP (Crl.) No.4055 of 2006)

Mohd. Azad @ Samin .....Appellant

Versus

State of West Bengal .....Respondent

(With Criminal Appeal No. 1730    of 2008 @SLP(Crl.) No.5212/2006)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. In these appeals challenge is to the judgment of a Division Bench of

the Calcutta High Court dismissing the appeal filed by the appellants.  Both

the appellants were convicted for offence punishable under Sections 302,

201 read with  Section  34  of  the  Indian  Penal  Code,  1860 (  in  short  the

‘IPC’). Three persons were accused of the alleged offences. One of them,

i.e. Md. Nayeen @ Raju did not face the trial. Learned Additional Sessions

Judge, Ist Court, Alipore, in the district of 24 Parganas (South) in Sessions

Trial  No.1(1)  of  1995  found  the  appellants  guilty,  and  convicted  and

sentenced them.  

3. Prosecution version as unfolded during trial is as follows:

One  Tarence  Stanley  Arland  son  of late  Joseph  William  Arland

serving as the Secretary of the Christian Cemetery located at 184, Acharya

Jagadish Chandra Bose Road, Calcutta-17 was working in his office at the

said premises on 10.2.1994.  At about 3 P.M. on that  day one Lakshman

Singh  a  Gardner  of  the  cemetery  came to  Mr.  Arland  in his  office  and

informed him that  a boy aged about  10/12 had come to  him earlier  and

informed him that a dead body was lying on the south east corner of the said

cemetery. On getting such information from Lakshman Singh, Mr. Arland

asked Lakshman Singh to go and ascertain as to whether the information of

the  boy  was  at  all  correct.  Lakshman  Singh  left  the  office  and  after

sometime came back to Mr. Arland and reported that the dead body with a

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cut mark on the back was lying on its  back in a half  dug position at the

south eastern  corner  of  the  cemetery.  Having learnt  this  from Lakshman

Singh, Mr. Arland and Lakshman Singh went to the place at which the dead

body was lying and found that a person aged about 25/26 years, wearing a

blue colored sweater and jeans pantaloon and having gaping wound on the

neck was lying at the south east corner of the cemetery. Mr. Arland then

called out to the man repeatedly so as to ascertain as to whether the man had

any life. But, he did not get any response. Mr. Arland  also noticed some

quantity of blood on the ground at a distance of about 10 feet to the north of

that person lying dead. He could not ascertain the identity of the dead body.

Then  Mr.  Arland  came back  to  his  office  and  informed the  Beniapukar

police  station  over  phone  of  the  matter  being  sure  that  the  man  was

murdered by some unknown persons and was left within the cemetery in a

half  buried  condition.  On  getting  such  information  from Mr.  Arland  on

phone Beniapukar Police came to the Christian Cemetery within 10 to 15

minutes and Mr. Arland was examined by the police.  Mr. Arland gave a

statement to the police regarding the said  incident  and his  statement was

recorded by the police.  Mr.  Arland then  went  through the statement  and

signed the same. He then went to the spot alongwith two of his employees

so as to help in the matter of lifting the dead body from the spot. Mr. Arland

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then called one Sheo Sagar and another employee so as to help the police.

Police  then  lifted  the  dead  body  from  the  spot  with  the  help  of  those

employees. Police then prepared a report and Mr. Arland signed it. Police

also prepared three seizure lists in his presence in regard to many articles

like earth stained with blood, some burnt black and greenish plastics stained

with blood, some quantity of control earth, one black shoe with one socks

inside,  one cement  slab,  one blue jeans and one blue sweater,  which the

dead  body  was  wearing  and  another  deep  brown  socks  lying  under  the

cement slab. Police found the dead body under the cement slab. The seizure

lists as were prepared by the police were signed by Mr. Arland along with

other witnesses. Police also labelled the seized articles in presence of Mr.

Arland and other witnesses and they also signed such labels. As police left

the spot after doing their job, Mr. Arland came back to his office within the

cemetery.

The statement of Mr. Arland as given to the police and  recorded by

the police was treated by the police as the F.I.R. of the case and Beniapukur

police recorded the case No. 32 dated 10.2.1994 u/s 302/201 I.P.C. against

unknown persons. S.I. Sahajamal Mondal who went to the spot along with

other police personnel on getting the telephonic information of Mr. Arland

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as shown earlier, took up the investigation of the case under the orders of his

superior officers. He also made entries in the  General Diary of the police

station  while  leaving  for  the  spot  and  after  coming  back  to  the  police

station.  He sent the  original FIR formal F.I.R. and the seizure lists to the

court of the Ld. A.C.J.M. Sealdah, along with prayer for keeping the seized

articles in the police station malkhana. He also sent necessary requisitions to

the  Professor  Forensic  and  State  Medicine,  N.R.S..  Medical  College,

Calcutta,  for  holding the post  mortem examination of  the dead body. He

also  had  been  to  the  said  morgue  on  that  day.  On 12.2.1994  he  sent  a

requisition to the Plan Making section of Detective Department, Lalbazar

asking it  to take appropriate steps by coming to the place of occurrence.

Thereafter on 17.2.94 the then O/C of Beniapukar Police Station Sashanka

Sekhar Dey arrested accused Md. Nadir, brought him to the police station

and  handed  over  the  accused  to  S.I.  Sahajamal  Mondal.  S.I.  Sahajamal

Mondal  then  interrogated  Md.  Nadir  and  pursuant  to  his  statement  he

recovered some articles being led by Md. Nadir.  

On 17.2.1994 the accused was taken up by the Detective Department

of  Calcutta  Police  for  further  investigation.   After  investigation  charges

were filed. Since the accused persons pleaded innocence they were tried. In

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order to prove accusations,  prosecution  examined 34 witnesses.  The trial

Court noticed that the witnesses could be categorized into six categories.

Out  of  these,  witnesses  belonging  to  2nd and  3rd category  had  last  seen

accused and the deceased together. So far as third category is concerned,

they deposed to  have seen  the accused and the deceased at  the  point  of

entry. At the time of departure, The accused persons alone came out. The

fourth category speaks about the presence of accused persons at the scene of

occurrence and category five belongs to recovery.  

Learned counsel  for the appellants  submitted that  the case rests  on

circumstantial  evidence.  The medical  evidence on which the prosecution

relied falsified the prosecution case because the doctor found the presence

of injuries and, therefore, the presence of body of deceased for three days

rules out the prosecution version that the injuries were inflicted on 6.2.1994.

It is pointed out that there are several persons working near the scene of

occurrence. But for four days the body of the deceased could not be noticed.

It is further submitted that scaling of the wall as stated by some witnesses is

not probable.  So far as the confessional statement by accused Md. Azad is

concerned it is stated that no burning was coming. But plea is given that

burning was coming.  It is submitted that during examination under Section

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313  of  the  Code  of  Criminal  Procedure,  1973  (in  short  the  ‘Code’)  no

question was put about PW-24. There would be no question of conspiracy

and mere  presence  cannot  lead  to  inference  of  guilt  of  conspiracy.  It  is

pointed out that only one witness speaks out scaling while others did not.  

With  reference  to  the  doctor’s  evidence  it  is  pointed  out  that  the

doctor spoke that there was no alcohol in the lungs and the brain. Therefore,

the identification of the accused is of no consequence.  

4. In response,  learned counsel  for  the  State  submitted  that  the  High

Court has analysed the evidence in great detail and nothing infirm is there to

warrant interference.   

5. So far as the freshness of the injuries is concerned, the doctor PW-29

in  his  opinion  before  the  Investigating  Officer  on  9.3.1996  affirmed his

view that death might have taken place 4/5 days prior to the post mortem

examination of the dead body. From the First Information Report as well as

the statement of Secretary of the cemetery who lodged the FIR it is clear

that neither he nor any of the staff of the cemetery had noticed the dead

body but only a child found a dead body and informed one of the staff of the

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cemetery who in turn informed the informant.  It is on record that the child

was in the cemetery for the purpose of flying kite and for playing in the

open field and that is how he was moving hither and thither and noticed the

dead body was lying in a corner which was a long area. That being so, the

plea  that  the  body  could  have  been  unnoticed  by  the  appellants  is

unacceptable. It is to be noted that the date of occurrence was in the early

part  of  February  and  the  dead  body  was  discovered  with  full  wearing

apparels including winter garments, shoes and socks.  The dead body was

lying in half dug manner and a cement slab was placed on the face of the

dead body.  According to the High Court, that being the situation, the dead

body was not exposed to sun and wind and the chance of receiving dews

throughout the whole night and upto certain parts of the morning cannot be

ruled out.  Therefore, the view of the doctor about the date of death being on

or around 6.2.1994 is not rendered doubtful.  

6. According to the prosecution version on the night  of 6.2.1994, the

appellants  and  the  deceased  purchased  wine  from  a  shop  nearby  and

thereafter they entered into the cemetery not from the usual gate but after

scaling the wall. The identification by the workers of the cemetery has also

been established by cogent evidence. The witnesses stated that on a wintry

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night  they  were  warming  themselves  by  burning  wood.  The  appellants

appeared there and wanted water and there was altercation in between them

and one of the appellants gave a slap on the face of one of the workers.  In

the  Test  Identification  Parade,  some  of  the  workers  identified  appellant

Nadir  as  the  man  who  went  to  fetch  water.  Therefore,  the  prosecution

version in that regard is cogent.  

7. So far as the alleged confessional statement of Md. Azad is concerned

Sankar Nath Das (PW-24) had categorically stated about the recording of

confessional  statement.  The  salesman  of  the  wine  shop  (PW-18)  spoke

about  appellant  Md.  Nadir.  The  said  accused  demanded  wine  on  credit

which was denied and thereafter he paid cash and purchased bottle of wine.

PW-10 one of the workers spoke about the demand by one of the accused

persons for water. He identified the person who had brought water in a mug.

The witness identified the accused appellant Nadir to be the man. He also

identified accused in test identification parade. To the similar effect is the

evidence of PW-12 who spoke about the supply of drinking water. So far as

absence of alcohol in lungs and brain is concerned, the doctor categorically

stated  that  the  stomach  contained  10  gms  of  fluid  with  strong  smell  of

alcohol.  

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8. Regarding recording of confessional statement is concerned, learned

Judicial  Magistrate,  6th Court,  Sealdah   has  categorically  stated  that  the

requirement  of  Section164(2)  of  Code  was  strictly  followed.  He  has

categorically  stated  that  the confessional  statement  was  given voluntarily

and it was recorded after observing all statutory formalities.  

9. It has been consistently laid down by this  Court that where a case

rests  squarely  on  circumstantial  evidence,  the  inference  of  guilt  can  be

justified only when all the incriminating facts and circumstances are found

to be incompatible with  the innocence of the accused or the guilt  of any

other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);

Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v.

State of  Karnataka  (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors.

(AIR 1985 SC 1224);  Balwinder Singh v.  State of Punjab (AIR 1987 SC

350);  Ashok Kumar Chatterjee v.  State of M.P. (AIR 1989 SC 1890). The

circumstances  from which  an  inference  as  to  the  guilt  of  the  accused  is

drawn have to be proved beyond reasonable doubt and have to be shown to

be closely connected with the principal fact sought to be inferred from those

circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was

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laid  down that  where  the  case  depends  upon the  conclusion  drawn from

circumstances the cumulative effect of the circumstances must be such as to

negative the innocence of the accused and bring the offences home beyond

any reasonable doubt.

10. We may also  make  a  reference  to  a  decision  of  this  Court  in  C.

Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has

been observed thus:

“In a case based on circumstantial evidence, the settled  law is  that  the  circumstances  from which  the conclusion of guilt is drawn should be fully proved and such  circumstances  must  be  conclusive  in  nature. Moreover, all the circumstances should be complete and there  should  be no  gap left  in  the  chain  of  evidence. Further  the  proved  circumstances  must  be  consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....”.

11. In Padala Veera Reddy v. State of A.P. and Ors.  (AIR 1990 SC 79), it

was laid down that when a case rests upon circumstantial  evidence, such

evidence must satisfy the following tests:  

“(1) the circumstances from which an inference of guilt is  sought  to  be  drawn,  must  be  cogently  and  firmly established;

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(2) those  circumstances  should  be  of  a  definite tendency  unerringly  pointing  towards  guilt  of  the accused;

(3) the circumstances, taken cumulatively should form a  chain  so  complete  that  there  is  no  escape  from the conclusion  that  within all  human probability the crime was committed by the accused and none else; and     

(4) the  circumstantial  evidence  in  order  to  sustain conviction  must  be  complete  and  incapable  of explanation of any other hypothesis than that of the guilt of  the  accused  and  such  evidence  should  not  only  be consistent  with  the  guilt  of  the  accused  but  should  be inconsistent with his innocence.

12. In  State of U.P. v.  Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it

was pointed out that great care must be taken in evaluating circumstantial

evidence  and  if  the  evidence  relied  on  is  reasonably  capable  of  two

inferences, the one in favour of the accused must be accepted.  It was also

pointed out that the circumstances relied upon must be found to have been

fully established and the cumulative effect  of  all  the facts  so established

must be consistent only with the hypothesis of guilt.

13. Sir  Alfred  Wills  in  his  admirable  book  “Wills’  Circumstantial

Evidence”  (Chapter  VI)  lays  down  the  following  rules  specially  to  be

observed in the case of circumstantial evidence: (1) the facts alleged as the

basis of any legal inference must be clearly proved and beyond reasonable

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doubt  connected  with  the factum probandum;  (2)  the burden  of  proof  is

always on the party who asserts the existence of any fact, which infers legal

accountability; (3) in all cases, whether of direct or circumstantial evidence

the best evidence must be adduced which the nature of the case admits; (4)

in  order  to  justify  the  inference  of  guilt,  the  inculpatory  facts  must  be

incompatible  with  the  innocence  of  the  accused  and  incapable  of

explanation, upon any other reasonable hypothesis than that of his guilt, (5)

if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted”.

14. There  is  no  doubt  that  conviction  can  be  based  solely  on

circumstantial  evidence but it  should be tested by the touch-stone of law

relating to circumstantial evidence laid down by the this Court as far back as

in 1952.   

15. In  Hanumant  Govind  Nargundkar  and  Anr. V.  State  of  Madhya

Pradesh, (AIR 1952 SC 343), wherein it was observed thus:

“It  is  well  to  remember  that  in  cases  where  the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in  the first  instance be fully established and all  the facts  so established should be consistent  only with the hypothesis  of  the  guilt  of  the  accused.   Again,  the circumstances  should  be  of  a  conclusive  nature  and tendency and they should  be such as to  exclude  every

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hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

16. A reference may be made to a later decision in  Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622).  Therein, while dealing

with  circumstantial  evidence,  it  has  been  held  that  onus  was  on  the

prosecution to prove that the chain is complete and the infirmity of lacuna in

prosecution  cannot  be  cured  by  false  defence  or  plea.   The  conditions

precedent in the words of this Court, before conviction could be based on

circumstantial evidence, must be fully established. They are:

(1) the  circumstances  from which  the  conclusion  of guilt  is  to  be drawn should  be  fully  established.   The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say,  they  should  not  be  explainable  on  any  other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they  should  exclude  every  possible  hypothesis except the one to be proved; and

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(5) there must be a chain of evidence so complete as not  to  leave  any reasonable  ground for  the  conclusion consistent  with  the innocence of the accused and must show that  in  all  human  probability  the  act  must  have been done by the accused.     

17. These  aspects  were  highlighted  in  State  of  Rajasthan v.  Rajaram

(2003 (8) SCC 180),  State of Haryana v. Jagbir Singh and Anr. (2003 (11)

SCC  261)  and  Kusuma  Ankama Rao v State  of  A.P. (Criminal  Appeal

No.185/2005 disposed of on 7.7.2008)

18. So far as the last seen aspect is concerned it is necessary to take note

of two decisions of this court.  In State of U.P. v. Satish [2005 (3) SCC 114]

it was noted as follows:

“22. The  last  seen  theory  comes into  play  where  the time-gap  between  the  point  of  time when  the  accused and  the  deceased  were  seen  last  alive  and  when  the deceased is found dead is so small that possibility of any person  other  than  the  accused  being  the  author  of  the crime becomes impossible. It would be difficult in some cases to  positively establish that  the deceased was last seen  with  the  accused  when  there  is  a  long  gap  and possibility of other persons coming in between exists.  In the absence of any other positive evidence to conclude that  the  accused  and  the  deceased  were  last  seen together, it would be hazardous to come to a conclusion of  guilt  in  those  cases.   In  this  case  there  is  positive evidence  that  the  deceased  and the accused  were  seen

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together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

19. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC

172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last  seen alive and the deceased is found dead is so small that possibility of any person  other  than  the  accused  being  the  author  of  the crime  becomes  impossible.  Even  in  such  a  case  the courts should look for some corroboration”.

(See  also  Bodhraj v.  State  of  J&K (2002(8)  SCC 45).)”

20. A similar view was also taken in Jaswant Gir v. State of Punjab [2005

(12) SCC 438] and Kusuma Ankama Rao’s case (supra).  

21. Confessions may be divided into two classes i.e. judicial and extra-

judicial. Judicial confessions are those which are made before a Magistrate

or a court in the course of judicial proceedings. Extra-judicial confessions

are those which are made by the party elsewhere than before a Magistrate or

court. Extra-judicial confessions are generally those that are made by a party

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to or before a private individual which includes even a judicial officer in his

private  capacity.  It  also  includes  a  Magistrate  who  is  not  especially

empowered  to  record  confessions  under  Section  164  of  the  Code  of

Criminal  Procedure,  1973  (for  short  the  ‘Code’)  or  a  Magistrate  so

empowered but receiving the confession at a stage when Section 164 of the

Code does not apply. As to extra-judicial confessions, two questions arise:

(i) were they made voluntarily? and (ii) are they true? As the section enacts,

a  confession  made  by  an  accused  person  is  irrelevant  in  criminal

proceedings, if the making of the confession appears to the court to have

been caused by any inducement, threat or promise, (1) having reference to

the  charge  against  the  accused  person,  (2)  proceeding  from a  person  in

authority, and (3) sufficient, in the opinion of the court to give the accused

person grounds which would appear to him reasonable for supposing that by

making it  he  would  gain  any advantage  or  avoid  any evil  of  a  temporal

nature  in  reference  to  the  proceedings  against  him.  It  follows  that  a

confession would be voluntary if it is made by the accused in a fit state of

mind, and if it is not caused by any inducement, threat or promise which has

reference to the charge against him, proceeding from a person in authority.

It would not be involuntary, if the inducement, (a) does not have reference

to the charge against the accused person; or (b) it does not proceed from a

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person in authority; or (c) it is not sufficient, in the opinion of the court to

give the accused person grounds which would appear to him reasonable for

supposing that, by making it, he would gain any advantage or avoid any evil

of a temporal nature in reference to the proceedings against him. Whether or

not  the  confession  was  voluntary  would  depend  upon  the  facts  and

circumstances of each case, judged in the light of Section 24 of the Indian

Evidence  Act,  1872  (in  short  ‘Evidence  Act’).  The  law  is  clear  that  a

confession  cannot  be used  against  an accused person unless  the  court  is

satisfied that it was voluntary and at that stage the question whether it is true

or  false  does  not  arise.  If  the  facts  and  circumstances  surrounding  the

making  of  a  confession  appear  to  cast  a  doubt  on  the  veracity  or

voluntariness  of  the  confession,  the  court  may  refuse  to  act  upon  the

confession, even if it is admissible in evidence. One important question, in

regard  to  which  the court  has  to  be  satisfied  with  is,  whether  when  the

accused made the confession, he was a free man or his  movements  were

controlled by the police either by themselves or through some other agency

employed  by  them for  the  purpose  of  securing  such  a  confession.  The

question whether a confession is voluntary or not is always a question of

fact.  All  the  factors  and  all  the  circumstances  of  the  case,  including  the

important  factors  of  the  time  given  for  reflection,  scope  of  the  accused

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getting  a  feeling  of  threat,  inducement  or  promise,  must  be  considered

before  deciding  whether  the  court  is  satisfied  that  in  its  opinion  the

impression caused by the inducement,  threat or promise, if any, has been

fully removed. A free and voluntary confession is deserving of the highest

credit, because it is presumed to flow from the highest sense of guilt. (See

R. v. Warickshall) It is not to be conceived that a man would be induced to

make a free and voluntary confession of guilt,  so contrary to the feelings

and  principles  of  human  nature,  if  the  facts  confessed  were  not  true.

Deliberate and voluntary confessions of guilt, if clearly proved, are among

the most effectual proofs in law. An involuntary confession is one which is

not the result of the free will of the maker of it. So where the statement is

made  as  a  result  of  harassment  and  continuous  interrogation  for  several

hours after the person is treated as an offender and accused, such statement

must be regarded as involuntary. The inducement may take the form of a

promise or of a threat, and often the inducement involves both promise and

threat,  a  promise  of  forgiveness  if  disclosure  is  made  and  threat  of

prosecution  if  it  is  not.  (See  Woodroffe’s  Evidence,  9th  Edn.,  p. 284.)  A

promise is  always attached to  the confession alternative while a threat  is

always attached to the silence alternative; thus, in one case the prisoner is

measuring  the  net  advantage  of  the  promise,  minus  the  general

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undesirability  of  a  false  confession,  as  against  the  present  unsatisfactory

situation; while in the other case he is measuring the net advantages of the

present  satisfactory  situation,  minus  the  general  undesirability  of  the

confession against the threatened harm. It must be borne in mind that every

inducement, threat or promise does not vitiate a confession. Since the object

of  the  rule  is  to  exclude  only  those  confessions  which  are  testimonially

untrustworthy,  the  inducement,  threat  or  promise  must  be  such  as  is

calculated  to  lead to  an  untrue  confession.  On the  aforesaid  analysis  the

court is to determine the absence or presence of an inducement, promise etc.

or its sufficiency and how or in what measure it worked on the mind of the

accused. If the inducement, promise or threat is sufficient in the opinion of

the court, to give the accused person grounds which would appear to him

reasonable for supposing that by making it he would gain any advantage or

avoid any evil, it is enough to exclude the confession. The words “appear to

him” in the last part of the section refer to the mentality of the accused.

22. 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

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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 of 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.

23. If the factual scenario is considered in the background of principles

relating  to  circumstantial  evidence  and  extra  judicial  confession,  the

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inevitable conclusion is that appeals are without merit,  deserve dismissal,

which we direct.  

………………………….….J. (Dr. ARIJIT PASAYAT)

….………………………….J. (P. SATHASIVAM)

New Delhi, November 5, 2008           

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