REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 180  OF 2001

Chattar Singh and Anr. ..Appellants  

versus   

State of Haryana ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench of the Punjab and Haryana High Court upholding the

conviction  of  appellant  No.1-Chattar  Singh  (hereinafter

referred to as ‘A-1’) for offence punishable under Section 302

of  the  Indian  Penal  Code,  1860.  He  was  also  convicted  for

offence punishable under Section 201 and Section 498A IPC.

Different  sentences  were  imposed  for  the  said  offences.

Appellant-Mange  Ram (hereinafter  referred  to  as  ‘A-2’)  was

convicted for offence punishable under Section 498A IPC and

was sentenced to undergo RI for two years and to pay a fine of

Rs.2,000/-.   The  conviction  recorded  by  learned  Additional

Sessions Judge, Rohtak, was confirmed by Division Bench of

the High Court as also the sentences for both the appellants.    

2. Background facts  giving rise  to the prosecution are  as

follows:

A young girl,  namely,  Guddi (hereinafter referred to as

the ‘deceased’) aged about 26 years, belonged to village Nimly

in district Bhiwani in Haryana. Her marriage was performed

with Chattar  Singh,  A-1,  son  of  Mange  Ram,  A-2 of  village

Sahlawas,  in district  Rohtak,  in  the  year  1990.  Both  the

families  are agriculturists.  A  daughter,  namely,  Poonam

(deceased no.2) was born from this wedlock.

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Dead bodies  of  Guddi  and that of  the infant daughter

Poonam in the posture that the latter  was in the armpit  of

Guddi were found in a well of village Sahalwas on the morning

of  17.2.1993.  Jeet  Singh,  father  of  the  deceased  made  an

application  Ex.PO  on  16.2.1993,  a  day  earlier  that  his

daughter  was missing,  before  SI  Ashok Kumar,  PW-12,  the

then Station House Officer, Police Station, Sahlawas and on

its  basis  formal  FIR  Ex.PN was  recorded.  On 17.2.1993  he

inspected the spot and prepared rough site plan Ex.PCC. He

got the dead bodies of the deceased photographed by Varinder

Singh,  Photographer,  PW.14.  Ex.PJJ/l  to  8  are  the

photographs and Ex.PJJ/9 to 14 and Ex.PZ/7 and 8 are their

negatives. Zile Singh, PW.9, also took photographs Ex.PZ/7 to

12  and  the  negatives  are  Ex.PZ/1 to  6.  The  Investigating

Officer  prepared  inquest  reports  Ex.PB and  PD.  He  also

prepared  rough  site  plan  of  the  place  of  recovery  of  dead

bodies Ex.PDD. The dead bodies were taken out from the well

and were despatched for post mortem. On 28.2.1993, Chattar

Singh and Mange Ram accused were produced by Babu Lal,

Sarpanch  of  the  village  before  the  Investigating  officer  who

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were arrested.  On interrogation by the Investigating Officer on

1.3.1993, Chattar Singh accused made a disclosure statement

Ex.PFF and in pursuance thereof got recovered Chuni (Scarf)

from the specified place which were taken into possession vide

memo Ex.PFF/1. He also prepared rough site plan Ex.PFF/2

of the place of recovery. However, the statement made by Jeet

Singh,  PW.3,  the  father  of  the  deceased  contained  the

allegations  that  Chattar  Singh  (husband)  and  Mange  Ram

(father-in-law)  of  the  deceased  as  well  as  Rajesh  and Vijay

Singh along with their wives Bimla and Bala respectively who

were  maltreating his daughter  were demanding Rs.50,000/-

as a part of dowry and only on fulfilment of that condition the

daughter could remain in peace. He allegedly borrowed a sum

of  Rs.50,000/-  from one  Badan  Singh,  PW.8,  and paid  the

amount to the accused persons. He also claimed that he gave

various  other  amounts,  valuables  and  articles  on  various

occasions and it was, therefore, that since this amount was

given at least 25 days earlier to the occurrence, after the birth

of the child when Guddi had stayed only for a short period

prior to the occurrence at the place of her in-laws. So, there

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was one version of the complainant, father of the deceased,

that the dispute which led to the death of the deceased was

the demand of dowry. However, during further investigation of

the  case,  it  transpired  that  extra  judicial  confession  was

allegedly  made  by  Chattar  Singh  and  Mange  Ram accused

that they were suspecting illicit relation of the deceased Guddi

with some person and that she had conceived  a child  from

that person and the child was delivered at her parents’ place.

Therefore, on account of that stigma being cast on the family

of the accused, they did not think that it was befitting their

prestige that Guddi should be allowed to stay with them and

they have done her and the infant child to death and asked

the Sarpanch Babu Lal to help them in the matter. A similar

extra judicial confession was allegedly made before Dial Singh,

PW.5,  Om Singh,  PW.6  and  Ms.Viney  Bhardwaj,  P.W.10,  a

Reader in the Department of History who was the Secretary of

one Mahila Dakshita Samiti and the Samiti had approached

the accused persons in the village where Mange Ram made an

extra judicial confession that his son Chattar Singh had done

the deceased to death, because of infidelity of the deceased.

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The  post-mortem  on  the  dead  body  of  Guddi  was

performed by Dr. Vijay Pal Khanagwal, PW.1, on 19.2.1993 at

9.00 A.M.  and he  found  the  following  injuries  on the  dead

body:

1) There was a contusion present over the tip and alae of

nose, 3 cm in diameter. On dissection the sub cutaneous

and deeper structures showed acchymosed.

2) There were multiple contusions present over both the

lips and in an area of 3 to 4 cms around the lips. Size

varying from 1 x 0.5 to 2.5 x 1.5 cm. On dissection, the

underlying tissues were ecchymosed.

3) A  contusion  present  over  right  side  of  face  1  cm

from  mid  line,  situated  2  cm  above  lower  border  of

mendible  measuring  3.2  cm  placed  transversely.  On

dissection, the deeper tissues showed ecchymosis.  

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In  the  opinion  of  the  doctor  the  dead  body  was  in

moderate stage of decomposition and that the cause of death

was smothering.

On  the  same  day  at  11.00  A.M.  the  aforesaid  doctor

conducted  post  mortem  on  the  dead body  of  infant  child

Poonam and he found the following injuries on the dead body:  

1) There was a contusion over the nose along its tip and

alae  measuring  3  x  2  cm  in  size.  On  dissection  the

underlying tissues showed ecchymosis.

2) There were multiple contusion present over the lips,

chin and the area around it in an area of 4 x 5 cms size

varying from 1 x 0.5 cm to 2 x 1 cm. On dissection the

sub cutaneous and deeper structure were ecchymosed.

In  the  opinion  of  the  doctor  the  dead  body  was  in

moderate stage of decomposition and the cause of death was

smothering.

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Clothes of the deceased were sent to the Forensic Science

Laboratory  and they were  found to  be  stained  with human

blood as per report Ex.PQ/1.

Investigation was conducted by Inspector Sumer Singh

Malik, PW.13 who recorded the statements of Raghbir Singh,

Ramesh and one more witness on 5.4.1993. As per order of

Shri  R.S.  Yadav,  Additional  Superintendent  of  Police,  who

supervised the investigation, he arrested Mange Ram, Chattar

Singh and Bhalliyan,  accused. On  completion  of

investigation, charge sheet was filed.

It  is  to  be  noted  that  Jeet  Singh (PW-3),  father  of  the

deceased  had brought a private  complaint  in which he had

named seven accused persons.  The police presented challan

against two persons i.e. the present appellants and the names

of  rest  of  the  accused  persons were  kept  in column No.  II.

However, the trial Court ordered challan of the complaint to be

amalgamated and, therefore, all the seven persons were tried.

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But  the  trial  Court  directed  acquittal  of  five  co-accused

persons while finding the appellants guilty.  

The trial Court found that the prosecution case rested on

circumstantial evidence. Two of the major circumstances were

the alleged extra judicial confession and that the accused and

the deceased were last seen together.  The trial  Court found

the prosecution version to be cogent and credible. It is to be

noted  that  14  witnesses  were  examined  to  further  the

prosecution version.  The complainant was examined as PW-3.

The  present  appellants  pleaded  innocence  though  they

admitted relationship inter  se with the deceased Guddi  and

the factum that she has delivered a child. Though a plea was

taken that the deceased had accidentally fallen in the well or

had  committed  suicide,  the  same  was  discarded.  The  trial

Court primarily relied on the evidence of Dr. Vijay Pal Kangwal

to  rule  out  the  death  by  drowning  and  that  death  had

occurred  earlier  and  dead  bodies  were  thrown  in  the  well.

According to him, death was caused by closing the nostrils

and  mouth  of  the  deceased  with  hands  or  other  means.

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Accordingly,  the  convictions  were  recorded  and  sentences

were imposed.   

3. The primary stand in appeal was that the circumstances

do not present a complete chain. The High Court noted that

the  trial  Judge  believed  the  evidence  of  extra  judicial

confession against appellant No.1 that he had smothered his

wife and child and managed to throw the dead bodies in the

well  and  came  to  the  conclusion  that  he   alongwith  father

Mange Ram  also maltreated and harassed the deceased with

cruelty.   The  trial  Judge  had,  therefore,  rightly  recorded

conviction.  It  was  also  averred  before  the  High  Court  that

Guddi  was  missing  from  the  house  since  morning  of

16.2.1993 and on making report to that effect, her dead body

alongwith the dead body of child were found in the well. It was

also submitted that it was not a case of smothering and death

was due to asphyxia  as stated by PW-1, the doctor and the

injury on the person of the deceased could be the result of the

deceased having fallen in the well. The version of the accused

persons that the deceased  left  the  house  around 6.00 a.m.

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was also falsified by the fact that semi digested food was found

in her intestine.  It was also pleaded that one of the witnesses

to the alleged extra judicial confession supported the case of

the defence and not the prosecution.  The High Court noticed

that  the  extra  judicial  confession  before  PW-10  was  most

relevant. She had no animus against anyone whatsoever. The

evidence  of  PWs 5 and 6 was also  believed  so far  as extra

judicial confession is concerned.  The High Court did not find

any substance in the appeal and dismissed the same.  

4. The stand taken before the High Court was re-iterated by

learned counsel for the appellants and the State.  

5. 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

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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 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.

6. 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

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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....”.

7. 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;

(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

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accused and such evidence should not only be consistent  with  the  guilt  of  the  accused  but should be inconsistent with his innocence.”

8. 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.

9. 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

doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

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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”.

10. 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.   

11. 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

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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 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.”

12. 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

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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

(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.      

13. These aspects were highlighted in  State of Rajasthan v.

Raja  Ram (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)

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

15. In Ramreddy Rajeshkhanna 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

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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 Bodh Raj v. State of J&K (2002(8) SCC 45).)”

16. A similar view was also taken in Jaswant Gir v. State of

Punjab [2005(12) SCC 438] and Kusuma Ankama Rao’s case

(supra).

17. 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  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

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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

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involuntary, if the inducement, (a) does not have reference to

the  charge  against  the  accused  person;  or  (b)  it  does  not

proceed from a 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

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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 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

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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  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

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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.

18. 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

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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.

18. So far as the extra judicial confession of A-2 before PWs

5 and 6 is concerned that actually is not of much relevance in

view  of  Section  30  of  Evidence  Act.  The  stress  in  the  said

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provision  is  on  the  joint  trial  for  the  same  offence.  In  the

instant case A-2 was not tried for Section 302 IPC. Therefore,

his  confession  if  any  is  of  no  consequence.  But  the  extra

judicial confession before PW-10 which has been relied upon

by both the trial Court and the High Court cannot be lost sight

of.  

19. In view of the evidence led, the inevitable conclusion is

that the conviction recorded by the trial Court and upheld by

the High Court does not suffer from any infirmity to warrant

interference. However, considering the age of A-2 the sentence

is reduced  to the period  already undergone which is nearly

one year so far as A-2 is concerned. Except the modification of

sentence so far as A-2 is concerned the appeal is dismissed.

The bail bonds executed so far as A-2 is concerned shall stand

discharged. So far as A-1 is concerned he shall surrender to

custody forthwith to serve the remainder of sentence.  

……………..……………………J.

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(Dr. ARIJIT PASAYAT)

……….…………………………..J. (Dr. MUKUNDAKAM SHARMA)         

New Delhi, August 26, 2008

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