REPORTABLE          IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1494-95 OF 2009

S. Arul Raja        …. Appellant

Versus

State of Tamil Nadu        .… Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1.These appeals are directed against the judgment of the Madurai  

Bench of the Madras High Court dated 05.08.2009. By  the said  

judgment, the High Court reversed the judgment of acquittal of the  

appellant passed by the Principal Sessions  Judge, Tirunelveli, and

convicted the appellant, Arul Raja under Section 302 read with  

Section  120-B  of  the  Indian  Penal  Code,  1860  (“IPC”),  and  

sentenced him to undergo life imprisonment and to pay a fine of  

5000/- in default to suffer three months’ rigorous imprisonment.  

He was also convicted under Section 307, read with Section 120-

B  of  the  IPC  and  sentenced  to  Rigorous  Imprisonment  for  a  

period of three years.

2.The  appellant  was  convicted  for  murder,  attempted  murder,  

and  criminal  conspiracy  to  commit  the  aforesaid  crimes  in  

connection  with  the  death  of  Sri  Aladi  Aruna,  a  former  law  

minister of Tamil Nadu, which occurred on 31.12.2004. The facts  

in  this  regard  go  back  to  the  alleged  animosity  between  the  

appellant  and Aladi  Aruna  over  the  years.  The  Appellant  was  

running  several  educational  institutions  in  the  District  of  

Tirunelveli  and  Kanyakumari,  and  had  also  started  an  

Engineering College at Athiyuthu in 2000. Subsequently, Aladi  

Aruna himself started an Engineering College, proximate to the  

one  started  by  the  appellant.  The  relations  between  both  the  

appellant and Aladi Aruna, who were on good terms until then,  

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were said to have deteriorated after the latter’s direct involvement  

in the business sphere of the appellant.

3.Furthermore,  in  the  same  month  in  which  Anna  University  

granted affiliation to the Engineering College run by Aladi Aruna,  

it also cancelled the affiliation already accorded to the appellant’s  

College.   Consequently,  many  students  allegedly  left  the  

appellant’s  College  to  join the  institution  run by  Aladi  Aruna.  

This situation was also alleged to be responsible for increasing  

the existing tension between both the appellant and Aladi Aruna.  

 4.Appellant has been accused of hatching a conspiracy wherein  

he engaged Accused No. 1, Veldurai (hereinafter referred to as  

“A1”), and deceased accused, Benny, to murder Aladi Aruna.  

5.In  pursuance  of  this  alleged  conspiracy,  Aladi  Aruna  was  

murdered on 31.12.2004, by accused persons Nos. 1 to 4, along  

with deceased accused Benny and Auto Bhaskar,  who formed  

into two groups to commit the act. All of them were subsequently  

arrested, with the exception of A1 and deceased accused Benny.  

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In the course of the investigation, it became known that A1 and  

Benny had fled to Ahmedabad in Gujarat.

6.On the night of 25.1.2005, a team comprising the Gujarat and  

Tamil  Nadu  Police  entered  the  flat  that  housed  Veldurai  and  

Benny,  and  attempted  to  apprehend  them.  In  the  melee  that  

ensued, A1 was arrested, while Benny consumed cyanide. Both  

were taken immediately to the L.G hospital nearby, where despite  

being administered treatment, Benny died.

7.In  the  morning  of  26.12.2005,  the  Executive  Magistrate  of  

Ahmedabad  City,  Mr.  Solanki,  went  to  L.G  hospital  upon  

receiving a written requisition to record the dying declaration of  

A1.  In  his  statement  made  to  the  Executive  Magistrate,  A1  

implicated the appellant in the crime, and declared that he was  

given  a  contract  killing  by  one  S.P.  Raja  for  an  agreed  

remuneration  of  Rs.  5,00,000/-  out  of  which he  was paid  an  

advance of Rs. 20,000/-. The Executive Magistrate Mr. Solanki  

was  examined  as  PW-30  and  testified  before  the  Principal  

Sessions Court at Tirunelveli as to the same.

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8.The Executive Magistrate, who took the dying declaration from  

A1  has  also  noted  that  he  was  “hale  and  healthy”  while  his  

statements were being recorded. A1, it is significant to note, was  

discharged from L.G. Hospital on the same day, and produced  

before the Ahmedabad Magistrate for issue of transit warrant to  

Tamil Nadu.  

9.The Madras High Court has convicted the appellant primarily  

on  the  basis  of  this  declaration  that  implicated  him  in  a  

conspiracy to murder Arul Raja. The High Court also took into  

account circumstantial evidence, such as the motive behind the  

act, as well as the statement of a bystander (PW3) who witnessed  

A1 and deceased accused Benny entering the  premises of  the  

Appellant’s college on a motorcycle a week before the murder.

10.Being aggrieved by the aforesaid decision, the appellant has  

filed  the  present  Special  Leave  Petition  before  this  Court.  We  

have  heard  the  learned  counsel  appearing  for  the  parties  at  

length.

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11.Counsel for the appellant argued that the statement of A1 is  

not a dying declaration within the meaning of Section 32(1) of the  

Evidence Act, 1861, since the very fact of his surviving negates  

the requirements to be complied in the said provision. Further,  

Counsel also argued that this statement is hit by Section 26 of  

the Evidence Act, 1872, as it was not recorded in the manner  

prescribed by Section 164 of  the  Code  of  Criminal  Procedure,  

1973.

12.Counsel  for  the  appellant  also  contended  that  the  

requirements  of  Section 10 of  the  Evidence  Act  mandate  that  

such a statement be made prior to the cessation of the common  

intention  of  the  conspiracy.  Hence,  it  was  argued  that  the  

statement of A1 made after the murder of Aladi Aruna may not  

be used to implicate the Appellant in a conspiracy. In addition,  

Counsel has also debunked the testimony of PW3 as inadequate  

and  insufficient  to  prove  charges  of  conspiracy  against  the  

Appellant.

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13.In its reply, the Counsel for the State of Tamil Nadu urged  

this Court to weigh the collective evidence presented, which, it  

was argued, implicates the appellant. In addition to the motive to  

eliminate  a  rival,  Counsel  also  pointed  to  the  telephone  

conversation between the appellant and Aladi Aruna’s son (PW8),  

which  highlighted  the  animosity  between  the  former  and  the  

deceased.  

14.Counsel for the State also submitted that the statement of A1  

is  not  tainted  in  any  manner  and  hence,  is  admissible  as  

evidence. In this regard, Counsel pointed out that there exists  

nothing  to  suggest  any  mala  fide involvement  between  the  

Gujarat  and Tamil  Nadu Police  to extract  the  confession from  

Veldurai. Counsel also contended that the statement was made  

in  connection  with  the  ongoing  investigation  surrounding  the  

suicide of deceased accused Benny, rather than as a purported  

dying declaration.

15.In  light  of  the  aforesaid  arguments,  it  falls  upon  us  to  

consider  the  matter  in  terms of  three  issues.  Firstly,  whether  

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there existed a motive for the appellant to murder Aladi Aruna;  

Secondly,  whether  the  appellant  conspired  with  the  other  

accused  to  commit  the  crime;  And  thirdly,  whether  A1’s  

statement  could  constitute  a  valid  dying  declaration  or  a  

confession or could constitute an evidence in any manner so as  

to be used to implicate the appellant for murder.

16.It was contended by the Respondent that the murder of Aladi  

Aruna was motivated by the animosity between the latter and the  

appellant. The Respondent had seized on the possible existence  

of a rivalry between Arul Raja and Aladi Aruna with regard to the  

running of their respective educational institutions in the same  

area. The cancellation of affiliation of appellant’s college to Anna  

University  has  been  alleged  to  be  the  catalyst  that  led  the  

appellant to murder Aladi Aruna. The High Court also held that  

the appellant believed this cancellation of affiliation to be done at  

the instance of Aladi Aruna.

17.The aforesaid motive is  claimed to have  been evidenced by  

threats from the appellant. PW8 (Son of Aladi Aruna) has testified  

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to a conversation with the appellant wherein he spoke of “dire  

consequences”  for  having  the  affiliation  of  Anna  University  

removed from his college.   

18.However,  according  to  PW 38 (the  Chief  Superintendent  of  

Anna University), the cancellation of affiliation was done on the  

basis of irregularities in the appellant’s college.  Pursuant to an  

application submitted by the appellant, the Madras High Court  

had also issued a stay on Anna University’s order. Seen in this  

light, there does not appear to be any role of the deceased in the  

act and hence, the argument that the cancellation of affiliation  

compelled the appellant to eliminate Aladi Aruna does not hold  

merit.  

19.As far as exodus of students from Arul Raja’s college to Aladi  

Aruna’s is concerned, the issue can be termed inconclusive at  

best.  The  cancellation  of  affiliation  had  been  done  in  August  

2004, and new registrations would have to be accepted only in  

the next academic year beginning from May/June 2005. PW 21  

(a  student  who  used  to  study  in  the  appellant’s  Engineering  

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College), who has testified that nearly 30 students left from the  

appellant’s college to Aladi Aruna’s, completed his 12th Grade in  

the academic year 2004-2005 and joined thereafter. This is well  

after the cancellation of affiliation, and hence the testimony fails  

to  establish  the  connection  between  these  events  and  the  

escalation of hostilities between the appellant and Aladi Aruna.  

20.To  the  Respondent,  these  events  added  together  provide  a  

vital link that illuminates the actions of Arul Raja and his alleged  

co-conspirators.  However,  we  find  such  an  argument  to  be  

unconvincing. While it may be true that appellant had grievances  

against  Aladi  Aruna,  the  chain  of  events  that  is  said  to  have  

driven the appellant to commit murder do not provide a clear  

motive to substantiate the argument of the Respondent, or the  

decision of the High Court.    

21.In  pursuance  of  this  motive,  it  has  been  sought  to  be  

established by the Respondent that the appellant conspired with  

the other accused to murder Aladi Aruna. This Court in Vijayan  

v. State of Kerala reported in 1999 (3) SCC 54 has held that to  

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punish a person for criminal conspiracy under Section 120-B of  

IPC,  it  is  necessary  to  establish that  there  was an agreement  

between the parties for doing an unlawful  Act.  Therefore,  it  is  

imperative to see whether there had been any such agreement  

between the Appellant and co-accused to murder Aladi Aruna,  

which could be established by producing reliable evidence.

22.To this effect, reference was made to meetings allegedly held  

between the appellant and two of the co-accused, namely, A1 and  

deceased accused Benny.  While the first meeting between the  

said persons was purported to be held on 14.9.2004, the second  

one is claimed to have been held on 24.12.2004. However, we  

find  that  there  is  little  evidence  to  prove  the  presence  of  the  

appellant  in  both these  meetings.  The  High  Court  has  rightly  

noted that the prosecution could not make its case concerning  

the meeting on 14.9.2004 due to PW1 and PW2 turning hostile.  

As has been held by this Court in  Bhagwan Singh  v. State of  

Haryana (1976) 1 SCC 389 and other subsequent cases, while  

the evidence of a hostile witness would not be completely effaced,  

the same requires corroboration and strict scrutiny. In this case,  

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however,  the  prosecution  has  not  been  able  to  adduce  any  

material evidence that may corroborate the statements of PW1  

and PW2. Hence, the same is not admissible in this case.

23.The  second  date  of  meeting  that  the  prosecution  had  put  

forward for the formulation of a conspiracy was 24.12.2004.  On  

this date, A1 and deceased accused Benny said to have met the  

appellant to plot the murder of Aladi Aruna. In this regard, the  

statements of PWs 4 and 5 were recorded wherein they testified  

to  hearing  a  conversation  between  the  said  persons  in  the  

appellant’s  chamber  regarding  the  commission  of  the  crime.  

However, since both witnesses have subsequently turned hostile,  

their statements do not inspire confidence and hence this story is  

not substantiated.  

24.On the other hand, the High Court has relied on the evidence  

provided by PW 3, Thenraj, who has testified to have seen both  

A1 and Benny drive into the college premises of the appellant. As  

the High Court recounted in the following words:-

“82....PW3 has stated that on 24.12.2004, he and his  friend  Karuppasamy  were  proceeding  to  the   

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Poolangulam village and at  about 11.00 A.M. when  they were nearing S.A. Raja’s college, they felt thirsty   and  they  stopped  the  vehicle  in  front  of  weighing  bridge…and were taking tender coconut. At that time,   PW3  saw  Accused  No.  1-  Veldurai  and  another   person  [deceased  accused-Benny]  came  in  a  motorcycle  from east  to west  and both entered into  the  Engineering  college  of  S.A.  Raja  and  returned  from the college some 15 minutes thereafter.”

At the time,  PW3 could not identify  the  pillion rider  but  later  

identified him as the deceased accused Benny after being shown  

his photograph.

25. Whereas  the  High  Court  noted  this  statement  as  a  vital  

piece of evidence affirming the existence of a conspiracy between  

the appellant and the co-accused, we are compelled to disagree.  

In  relying  upon  the  statement  of  PW3,  the  High  Court  has  

glossed over important facts. From the examination of witnesses  

it  is  not  clear  whether  Arul  Raja  was  at  all  present  at  this  

meeting and the same could not be substantiated by any cogent  

and reliable evidence. Since the purpose of the meeting and the  

presence of  the  alleged participants  cannot be confirmed,  this  

testimony is too weak to support any conclusion in favour of the  

Respondent.

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26. The prosecution has also relied on meetings that may have  

taken place on 28.12.2004 to 30.12.2004 to hold up the charge  

of conspiracy. Accused Nos. 1 to 5 and deceased accused Auto  

Bhaskar were said to be in Sundara Nilayam, Courtallam to work  

out  a  plan  to  murder  Aladi  Aruna.  However,  the  evidence  as  

regards these meetings make no reference to the appellant and  

hence no reference is to be made to the same at this stage.

27.  The  High  Court  has  strung  the  following  pieces  of  

substantiated events together to include the appellant within the  

ambit of the conspiracy:-

“•  On  24.12.2004,  Accused  No.  1  and  deceased  accused- Benny had gone into  the college of  Accused  No. 7 and returned after 15 minutes.

•  Presence  of  Accused  No.  1,  Accused  No.  4  and  deceased accused-Benny on the southern side of place  of occurrence on 31.12.2004.

• Accused No. 1 and deceased accused-Benny flew to  Gujarat and were apprehended together.

•  Accused  Benny  consumed  cyanide  poison  immediately after the arrest and accused-Auto Baskar   consumed cyanide poison after arrest while in transit.”

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28.  We find that these events, even when taken together, cannot  

prove a charge of conspiracy so far the appellant is concerned. In  

State through Superintendent of Police, CBI/SIT v. Nalini &  

Others, reported in (1999) 5 SCC 253, it was held that: -

“583.    ……….

(1)………….Offence  of  criminal  conspiracy  is  an   exception  to  the  general law where intent  alone does  not constitute crime. It is intention to commit crime and  joining hands with persons having the same intention.   Not only the intention but there has to be agreement to  carry out the object of the intention, which is an offence.   The question for consideration in a case is did all the   accused have the intention and did they agree that the   crime  be  committed.  It  would  not  be  enough  for  the   offence of conspiracy when some of the accused merely  entertained a wish,  howsoever horrendous it may be,  that offence be committed……………..”

In  this  instance,  mere  circumstantial  evidence  to  prove  the  

involvement  of  the  appellant  is  not  sufficient  to  meet  the  

requirements of criminal conspiracy under Section 120-A of the  

IPC.  A meeting of minds to form a criminal conspiracy has to be  

proved by placing substantive evidence and the Respondent has  

not adduced any evidence which underlines the same. The issue  

of whether A1’s statement, recorded after his arrest, may be used  

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to implicate the appellant in the said conspiracy shall be dealt  

with subsequently.

29. We must now consider whether the statement made by A1  

and recorded by the Executive Magistrate of Ahmedabad City in  

the morning of 26.12.2005, which is proved as Ex. P22, may be  

used to implicate the Appellant in this crime. The Respondent,  

and the High Court in its decision, both rely on A1’s statement  

made while  he was in L.G Hospital,  subsequent to his arrest.  

This  statement  was  recorded  as  A1’s  dying  declaration.  

Therefore,  the  legal  basis  to  admit  the  statement  as  a  dying  

declaration needs to be examined.

30. Section 32 (1) of the Evidence Act, 1872 states that a dying  

declaration  is  a  relevant  fact  and  therefore  admissible  in  

evidence.  Section  32  (1)  categorically  states  that  a  statement  

made by a person as to the cause of his death, or as to any of the  

circumstances of the transaction which resulted in his death is a  

relevant fact and admissible in evidence in cases in which the  

cause  of  that  person’s  death  comes  into  question.  It  further  

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mentions that such a statement will be admissible in evidence  

when the person making it is dead or cannot be found or has  

become incapable of giving evidence or whose attendance cannot  

be procured without an amount of delay or expense.

31. It  is  trite  law  that  for  a  statement  to  be  admissible  in  

evidence as a dying declaration, the person making the statement  

should no longer be alive. If the person eventually does not die  

after making the statement, then the same cannot be treated as a  

dying declaration.

32. The  cited  authority  of  the  High  Court  in  regards  to  the  

admissibility of  a dying declaration,  Rattan Singh  v. State of  

Himachal  Pradesh reported  in (1997)  4  SCC  161, in  fact  

confirms  the  necessary  condition  of  death  failing  which  this  

statement will be inadmissible under the dying declaration rule.

33. Other case law also confirms this necessary condition. In  

Ramprasad v.  State of Maharashtra¸ reported at (1999) 5 SCC  

30, this Court held:-

“13.  Ext.  52 is  the  dying declaration  made by PW 1  Ramu  Somani,  which  was  recorded  by  a  Judicial   

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Magistrate  (PW 16). Both the trial  court and the High  Court counted Ext. 52 as a piece of evidence. Shri R.S.   Lambat, learned counsel contended that both the courts  have  gone  wrong  in  treating  Ext.  52  as  evidence  because  the  person  who  gave  that  statement  is  not   dead and hence it could not fall under Section 32 of the   Evidence  Act,  1872.  Counsel  further  contended  that   even otherwise  Ext.  52 could only have been used to   contradict PW 1 as provided in Section 162 of the Code  of Criminal Procedure (for short “the Code”) as it was a  statement recorded during investigation.

14. We are in full agreement with the contention of the  learned  counsel  that  Ext.  52  cannot  be  used  as   evidence under Section 32 of the Evidence Act though it   was recorded as a dying declaration. At the time when   PW 1 gave the  statement  he would have been under  expectation of death but that is not sufficient to wiggle it   into the cassette of Section 32. As long as the maker of   the statement is alive it would remain only in the realm   of a statement recorded during investigation.

15. Be that as it may, the question is whether the Court  could treat it  as an item of evidence for any purpose.   Section  157 of  the  Evidence Act permits  proof  of  any  former  statement  made  by  a  witness  relating  to  the   same  fact  before  “any  authority  legally  competent  to  investigate  the  fact”  but  its  use  is  limited  to  corroboration  of  the  testimony  of  such  a  witness.   Though  a  police  officer  is  legally  competent  to   investigate, any statement made to him during such an  investigation  cannot  be  used  to  corroborate  the  testimony  of  a  witness  because  of  the  clear  interdict   contained in Section 162 of the Code. But a statement   made to a Magistrate is not affected by the prohibition  contained in the said section. A Magistrate can record  the statement of a person as provided in Section 164 of   the  Code  and  such  a  statement  would  either  be  elevated to the status of Section 32 if the maker of the   statement subsequently dies or it would remain within   the  realm  of  what  it  was  originally.  A  statement  recorded by a Magistrate  under Section  164 becomes  usable to corroborate the witness as provided in Section   157 of the Evidence Act or to contradict him as provided  in Section 155 thereof.”

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34. In the present case, on 26.01.2005 at about 7:15 a.m., PW-

46  (Executive  Magistrate/Deputy  Tehsildar),  on  receiving  a  

written  requisition  from  L.G.  Hospital  for  recording  the  dying  

declaration of A1 who was admitted to the ICU Ward of the said  

hospital, went there and recorded the alleged dying declaration  

which  is  Ex.  P22.  Ex.  P22  cannot  be  said  to  be  a  dying  

declaration and that is so on account of various reasons, which  

may be elaborated herein.

35. The most important of them all is that A1 did not die after  

making the alleged dying declaration. From the decision of this  

Court in the aforementioned case, it is clear that when a person  

who has made a statement perhaps in expectation of death, is  

not  dead,  it  is  not  a  dying  declaration  and  is  not  admissible  

under Section 32 of the Evidence Act.

36. Furthermore, there is no reason forthcoming as to why A1  

was brought to the hospital along with deceased accused Benny.  

There is nothing on record to show that A1 also had consumed  

poison  or  that  he  was  in  any  manner  ill  or  injured  which  

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necessitated his admission to the hospital for treatment. In this  

regard, we may notice the testimony of PW-46. PW-46 has clearly  

deposed that when he went to the said hospital, he saw that A1  

was sitting “hale and healthy”.   He further stated that he had  

recorded  the  alleged  dying  declaration  of  A1  because  in  the  

requisition letter it  was mentioned that both A1 and deceased  

Benny had consumed poison.  PW-46 also  stated that  A1 was  

under treatment and in a frightened mood. He has categorically  

stated in his testimony that he did not ascertain from A1 as to  

whether  he  had  consumed  poison  or  as  to  the  nature  of  the  

same. He further states in his testimony that he did not ascertain  

from A1 as to what made him consume poison and whether he  

had consumed it himself or if  somebody had administered the  

same. This is a major lapse and casts a serious doubt on the  

credibility of the statement.  

37. It  must  also  be  noted  that  despite  the  fact  that  A1  was  

admitted to the ICU ward, he was discharged from the hospital  

and was produced before the Magistrate, Ahmedabad at 7:30 p.m  

on the same day, i.e., 26.01.2005. From this, two inferences may  

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be drawn. One is that A1 was not actually ill so as to warrant  

admission to  the  ICU and that  was done  only  with a view to  

obtaining a statement which could subsequently be used against  

him. Alternatively, the second is that A1 was actually ill and his  

serious condition necessitated admission to the ICU ward. But if  

his condition was so serious, then we fail to understand why he  

was discharged from the hospital  on the very same day.  That  

does not seem to us to be a reasonable course and raises serious  

doubts in our mind.  

38. We cannot appreciate the need for PW-46 having recorded  

the  dying  declaration  of  A1  when  A1  was  sitting  “hale  and  

healthy”,  as deposed by PW-46 himself.  No doctor treating A1  

was examined as to prove and establish that A1 was seriously ill  

and the line of treatment given to him in the hospital.  

39.  On a perusal of Ex. P-22 as a whole and Question No. 11  

therein  in  particular  it  cannot  be  said  to  be  a  statement  

admissible  in  evidence  as  a  dying  declaration.  In  response  to  

Q.11, A1 replied that  “in Ahmedabad Vatva Dr.  Maya Tawer’s   

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Home Nr. Cadila Bridge dated 26.01.2005 at 1:30 in night police   

caught  and  brought”.  There  is  nothing  in  the  alleged  dying  

declaration to show why A1 was brought to the hospital. Also, if  

it were recorded as a dying declaration, it should have contained  

the  circumstances  that  necessitated  A1’s  admission  to  the  

hospital.  Ex.  P-22  lacks  that  important  aspect  and  hence  it  

cannot be raised to the status of a dying declaration. PW-46 has  

stated in his testimony that he did not even make an attempt to  

ascertain who or what was responsible  for  A1’s  condition and  

why he consumed poison. Rather it seems to us that ascertaining  

the cause of his condition should have been the prime concern  

for  PW-46  who  went  to  the  hospital  to  record  the  dying  

declaration. In this regard, it  is also pertinent to note that no  

doctor from L.G. Hospitals who was on duty on the said day has  

been examined.

40. This  Court  in  the  case  of  Sharawan  Bhadaji  Bhirad  &  

Others v.  State of Maharashtra reported in (2002) 10 SCC 56  

held that when a statement is recorded as a dying declaration  

and the victim survives, such statement need not stand the strict  

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scrutiny  of  a  dying  declaration,  but  may  be  treated  as  a  

statement under Section 164, Cr.P.C.  

41. Therefore, with the said statement inadmissible as a dying  

declaration, the question that arises is:  whether the statement  

could be admissible either as a confession or as an extra-judicial  

confession?

42. The events surrounding the confession made by A1 while in  

hospital,  and  more  significantly,  in  police  custody,  are  too  

ambiguous to support conviction of the appellant.

43. Section 164 Cr.P.C. provides guidelines to be followed for  

taking  the  statement  of  accused  as  a  confession.  The  one  

essential condition is that it must be made voluntarily and not  

under threat or coercion. This Court in Aloke Nath Dutta & Ors.  

v. State of West Bengal reported in (2007) 12 SCC 230 held as  

under: -

“87. Confession ordinarily is admissible in evidence. It   is a relevant fact. It can be acted upon. Confession may   under  certain  circumstances  and  subject  to  law  laid  down by the superior judiciary from time to time form  the basis for conviction. It is, however, trite that for the  

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said purpose the court has to satisfy itself in regard to:   (i) voluntariness of the confession; (ii) truthfulness of the  confession; (iii) corroboration. 88. This  Court  in    Shankaria   v.    State  of  Rajasthan    stated the law thus: (SCC p.            443, para 23)   

“  23  .  This  confession  was  retracted  by  the    appellant  when  he  was  examined  at  the  trial   under Section 311 CrPC on 14-6-1975. It  is well   settled  that  a  confession,  if  voluntarily  and  truthfully  made,  is  an  efficacious  proof  of  guilt.   Therefore, when in a capital case the prosecution   demands a conviction of the accused, primarily on  the basis of his confession recorded under Section  164 CrPC, the Court must apply a double test: (  1  )  Whether  the  confession  was  perfectly    voluntary? (2)        If so, whether it is true and trustworthy?   Satisfaction of the first test is a  sine qua non for  its  admissibility  in  evidence.  If  the  confession  appears to the Court to have been caused by any   inducement,  threat  or  promise  such  as  is  mentioned in Section 24, Evidence Act, it must be  excluded and rejected brevi manu. In such a case,   the  question  of  proceeding  further  to  apply  the  second  test,  does  not  arise.  If  the  first  test  is   satisfied, the Court must,  before acting upon the  confession reach the  finding that  what  is stated   therein  is  true  and  reliable.  For  judging  the  reliability of such a confession, or for that matter   of any substantive piece of evidence, there is no  rigid canon of universal application. Even so, one  broad method which may be useful in most cases   for evaluating a confession may be indicated. The  Court should carefully examine the confession and  compare  it  with  the  rest  of  the  evidence,  in  the  light  of  the  surrounding  circumstances  and  probabilities  of  the  case.  If  on such examination   and comparison,  the  confession appears to be a  probable catalogue of events and naturally fits in   with the rest of the evidence and the surrounding  circumstances, it  may be taken to have satisfied  the second test.”                  ”

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44. In Babubhai Udesinh Parmar v. State of Gujarat reported  

in  (2006)  12  SCC 268,  this  Court  held  that  compliance  with  

statutory provisions is mandatory which should be in letter and  

spirit and not in a routine or mechanical manner.

45. As has been held by this Court in State of UP v. Singhara  

Singh, reported in (1964) 4 SCR 485, a statement that does not  

prescribe to the procedure laid down in Section 164 of the CrPC  

is not admissible as a confessional statement. In this case, the  

statement has neither been recorded by a Judicial Magistrate nor  

has  it  fulfilled  procedural  requirements,  including  that  of  a  

certificate  to  be  appended  by  the  Magistrate.  Hence,  the  

statement is not admissible against the appellant as a confession  

under Section 164.

46. Besides, in the present case, as pleaded by the appellant,  

A1  gave  a  representation  on  9.5.2005  with  a  request  to  the  

Judicial Magistrate Court, Thenkasi and also Magistrate Court at  

Senkottai  stating  that  his  confessional  statement  which  

implicated  the  appellant  was  not  voluntary  and  that  he  was  

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forced to give the same by the police. Therefore, there is a doubt  

as  to  whether  implication  of  the  appellant  by A1,  if  any,  was  

made  voluntarily.  Viewed  from  this  angle  and  under  any  

circumstance,  the  said  statement  cannot  be  regarded  as  a  

confession as envisaged under Section 164 Cr. P.C. to implicate  

the appellant.  

47. Therefore,  the  only  issue  that  remains  before  us  to  be  

decided is whether the statement made by A1 may be considered  

as an extra-judicial confession. The concept of an extra-judicial  

confession is primarily a judicial creation, and must be used with  

restraint.  Such  a  confession  must  be  used  only  in  limited  

circumstances,  and  should  also  be  corroborated  by  way  of  

abundant caution. This Court in Ram Singh v. Sonia & Others,  

reported  in  (2007)  3  SCC  1,  has  held  that  an  extra-judicial  

confession while in police custody cannot be allowed. Moreover,  

when there  is  a  case  hanging on an extra-judicial  confession,  

corroborated  only  by circumstantial  evidence,  then the  Courts  

must  treat  the  same  with  utmost  caution.  This  principle  has  

been affirmed by this Court in  Ediga Anamma v. State of AP,  

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reported  in  (1974)  4  SCC  443  and  State  of  Maharashtra  v.  

Kondiba Tukaram Shirke, reported in (1976) 3 SCC 775. It is  

significant to observe that A1 has subsequently sought to retract  

this statement upon his arrival in Tamil Nadu.

48. In  Maghar Singh v.  State of Punjab reported in (1975) 4  

SCC 234, at page 236, while dealing with the question of extra-

judicial confession, this Court held as follows: -

“5. …………….If the Court believes the witnesses before  whom the confession is made and it is satisfied that the   confession  was  voluntary,  then  in  such  a  case  conviction  can be founded on such evidence alone as  was done in  Rao Shiv Bahadur Singh v.  State of V.P.  where their Lordships of the Supreme Court rested the  conviction  of  the  accused  on  the  extra-judicial   confession  made  by  him  before  two  independent  witnesses,  namely,  Gadkari  and  Perulakar.  In  the   instant case also, after perusing the evidence of PW 3  and PW 12 we are satisfied that they are independent  witnesses before whom both the appellant and accused  Surjit  Kaur  made  confession  of  their  guilt  and  this   therefore forms a very  important  link  in  the  chain  of  circumstantial  evidence.  In  our  opinion  the  argument  proceeds  on  fundamentally  wrong  premises  that  the  extra-judicial confession is tainted evidence.”

49. The evidentiary value of the extra-judicial confession must  

be judged in the facts and circumstances of each individual case.  

Extra-judicial confession, if voluntarily made and fully consistent  

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with the circumstantial evidence, no doubt, establishes the guilt  

of the accused. The extra-judicial confession, if voluntary, can be  

relied upon by the court along with other evidence in convicting  

the accused. However, the extra-judicial confession cannot  ipso  

facto  be  termed  to  be  tainted.  An  extra-judicial  confession,  if  

made voluntarily and proved, can be relied upon by the Courts.

50. This Court in  State of A.P. v.  S. Swarnalatha & Others  

reported in (2009) 8 SCC 383 held as follows: -

“16.  ……………..Extra-judicial  confession  as  is  well   known is a weak piece of evidence, although in given  situations reliance thereupon can be placed. (See State   of U.P. v. M.K. Anthony, SCC p. 517, para 15 and  State  of  Rajasthan v.  Kashi  Ram,  SCC p. 262,  para  14.)”

51. In  Pakkirisamy v.  State of T.N. reported in (1997) 8 SCC  

158, at page 162, this Court held: -  

“8. ………………..It  is  well  settled  that  it  is  a  rule  of   caution  where  the  court  would  generally  look  for  an  independent  reliable  corroboration  before  placing  any  reliance  upon  such  extra-judicial  confession. It  is  no  doubt  true  that  extra-judicial  confession  by  its  very  nature is rather a weak type of evidence and it is for  this reason that a duty is cast upon the court to look for  corroboration  from  other  reliable  evidence  on  record.   Such evidence requires appreciation with a great deal of   care and caution. If such an extra-judicial confession is   

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surrounded  by  suspicious  circumstances,  needless  to   state  that  its  credibility  becomes  doubtful  and  consequently it loses its importance. The same principle   has been enunciated by this Court in  Balwinder Singh  v. State of Punjab. ………………….”

52. This Court in State of A.P. v. Kanda Gopaludu reported in  

(2005)  13  SCC  116  held  that  extra-judicial  confession  is  

admissible if it inspired confidence and made voluntarily.

53. This Court in Kavita v.  State of T.N. reported in (1998) 6  

SCC 108, at page 108 held as follows: -

“4. There is no doubt that convictions can be based on  extra-judicial confession but it is well settled that in the   very nature of things, it is a weak piece of evidence. It   is to be proved just like any other fact and the value   thereof  depends  upon  the  veracity  of  the  witness  to  whom  it  is  made.  It  may  not  be  necessary  that  the   actual words used by the accused must be given by the   witness  but  it  is  for  the  court  to  decide  on  the   acceptability  of  the  evidence  having  regard  to  the  credibility of the witnesses.”

54. In view of the above case law, it is made clear that an extra-

judicial confession is a weak piece of evidence. Though it can be  

made  the  basis  of  conviction,  due  care  and  caution  must  be  

exercised  by  the  Courts  to  ascertain  the  truthfulness  of  the  

confession. Rules of caution must be applied before accepting an  

extra-judicial confession. Before the Court proceeds to act on the  

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basis  of  an extra-judicial  confession,  the  circumstances  under  

which  it  is  made,  the  manner  in  which  it  is  made  and  the  

persons to whom it is made must be considered along with the  

two rules of caution. First, whether the evidence of confession is  

reliable and second, whether it finds corroboration.

55. In the present case,  the  purported dying declaration was  

recorded in the hospital. A1 was discharged from the hospital on  

the same day  that  his  statement  was recorded.  That  A1 later  

made a representation stating that the confession was not given  

voluntarily,  raises  doubts  as  to  its  truthfulness.  Under  these  

circumstances,  it  is  to  be  said  that  the  authenticity  of  A1’s  

confession is not free from doubts. In the present case, A1 being  

the co-accused, it is not proper to convict the appellant solely on  

the basis of the confession of A1 – more so, when the confession  

is not corroborated by any evidence. Such corroborating evidence  

that may confirm the appellant’s  involvement in Aladi  Aruna’s  

murder is totally missing in this case.

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56.   Furthermore,  we  find  that  the  statement  made  by  A1 is  

insufficient to implicate the appellant in the said conspiracy as  

the same is hit by Section 10 of the Evidence Act. Section 10  

refers to the statement of a fellow conspirator that pertains to the  

common intention behind the act, and such a statement can be  

used against the other conspirators. In the present case, we have  

found and held that the prosecution has failed to substantiate  

the allegation of conspiracy against the appellant and therefore,  

he  could  not  be  under  any  circumstance  be  called  a  co-

conspirator so as to attract the provisions of Section 10 of the  

Evidence Act. Furthermore, this Court in Mohd. Khalid v. State  

of  West  Bengal reported  in  (2002)  7  SCC 334  and  State  of  

Gujarat  v. Mohd. Atik & Others reported in (1998) 4 SCC 351  

has held that a post-arrest statement would not fall within the  

ambit of Section 10 of the Evidence Act. Therefore, the statement  

made by A1 in police custody cannot be used to implicate the  

appellant in the conspiracy to murder Aladi Aruna.

57. Thus, viewed from any angle, the evidence adduced by the  

prosecution against the appellant is not sufficient to justify his  

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conviction  either  under  Section  302  or  Section  307  or  under  

Section 120-B of the Indian Penal Code.

58. In view of the aforesaid conclusions, we find no merit in the  

arguments of the Respondent. These appeals are allowed and the  

decision of the High Court is reversed and the appellant stands  

acquitted  of  the  charges  against  him  purely  and  simply  on  

benefit of doubt.  He shall be released forthwith from jail, if not  

wanted in any other case.  

       ........………………………......... J.

      [Dr. Mukundakam Sharma]

      .....…..…………………….........J.       [ C.K. Prasad]

New Delhi, July 30, 2010.

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