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PETITIONER: KISHORE CHAND

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT29/08/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SAWANT, P.B.

CITATION:  1990 AIR 2140            1990 SCR  Supl. (1) 105  1991 SCC  (1) 286        JT 1990 (3)   662  1990 SCALE  (2)369

ACT:     Indian Penal Code, 1860: ss. 302 & 201--Conviction based on circumstantial evidence--Facts consistent with  innocence of accused-Whether entitled to benefit of doubt--Tendency of free fabrication of record to implicate innocents in capital offence deprecated.     Constitution of India: Articles 14, 19, 21 & 39A/Univer- sal  Declaration of Human Rights: Articles 3 &  10--Indigent accused--Right  to liberty and life, equal justice and  free legal  aid--Need  to  assign experienced  amicus  curiae  to ensure effective and meaningful defence emphasised.

HEADNOTE:     The  appellant was convicted under ss. 302 and 201  read with  s.  34 IPC. The prosecution case was that he  and  the deceased  were last seen together in village J  on  November 10, 1974 by PW. 7, owner of a dhaba-cum-liquor shop, and PW. 8, and all of them had consumed liquor. The deceased had  by then become tipsy. Thereafter the appellant and the deceased had  boarded  a truck driven by A-2 and  A-3,  the  cleaner. While  they were going in the truck there ensued  a  quarrel between  them  over  some money matters  and  the  appellant attacked  the deceased with an iron screw driver,  and  when the  latter was half dead all the accused severed  his  head with  an  iron saw and burried the trunk under  stones.  The head was hidden at a different place. Three days later,  PW- 6, chowkidar of a neighboring village noticed the dead  body and  reported the matter to PW-10, the village pradhan,  who accompanied  him to the spot. PW-6 lodged the FIR  the  next morning. On receiving information that the deceased and  the appellant  were  seen consuming liquor on  November  10  the Sub-Inspector, PW-27, and PW-10 went to appellant’s  village and  took him for identification to village J, where  PWs  7 and  8  identified  him as one seen in the  company  of  the deceased  and  having  consumed liquor.  The  appellant  was thereafter taken to PW-10’s village and PW-27 proceeded  for further  investigation.  The appellant then made  an  extra- judicial  confession to PW-10 of having committed the  crime with the help of A-2 and A-3. PW-10 passed on that  informa- tion to PW-27 the next day following which the accused  were arrested. Thereafter A-2 made a statement under s. 27 of

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106 the  Evidence Act leading to the’ discovery of  the  severed head.  The  weapon of offence was also recovered.  The  High Court confirmed the conviction and sentence of the appellant but acquitted the other two of the charge under s. 302 IPC. Allowing the appeal by special leave, the Court,     HELD:  1. The prosecution has failed to bring  home  the guilt  to the appellant beyond all reasonable doubt  and  to prove  that he alone had committed the crime. He is,  there- fore, entitled to the benefit of doubt. [116D]     2.1 When there is no direct witness to the commission of murder  and the case rests entirely on  circumstantial  evi- dence,  all the circumstances from which the  conclusion  of the guilt is to be drawn should be fully and cogently estab- lished.  The proved circumstances should be of a  conclusive nature and definite tendency unerringly pointing towards the guilt  of the accused. Imaginary possibilities have no  role to play. What is to be considered are ordinary human  proba- bilities.  It  is not necessary that  each  circumstance  by itself  be  conclusive but cumulatively must  form  unbroken chain  of  events leading to the proof of the guilt  of  the accused.  If  any of the said circumstances  are  consistent with the innocence of the accused or the chain of the conti- nuity  of the circumstances is broken, the accused is  enti- tled to the benefit of the doubt. [112D-H]     2.2  In assessing the evidence to find these  principles it  is necessary to distinguish between facts which  may  be called  primary or basic facts on one hand and inference  of facts to be drawn from them, on the other. In regard to  the proof of basic or primary facts, the court has to judge  the evidence  in  the ordinary way and in  appreciation  of  the evidence  in  proof of those basic facts or  primary  facts, there  is  no scope for the application of the  doctrine  of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused  or not is another aspect and in dealing  with  this aspect  of the problem, the doctrine of benefit would  apply and  an inference of guilt can be drawn only if  the  proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. [113A-C]     3.1  In the instant case, from the evidence it is  clear that  there was no prior intimacy of the appellant  and  the deceased. They happened to meet per chance. PW-7, the liquor shop owner, and PW-8, who had 107 liquor  with the appellant and the deceased were also  abso- lute strangers to the deceased and the appellant. Admittedly there was no identification parade conducted by the prosecu- tion  to identify the appellant by PW-7 or PW-8. The  appel- lant was stated to have pointed out to PW-7 as the one  that sold  the liquor and PW-8 consumed it with him and  the  de- ceased.  Therefore, it is not reasonably possible to  accept the testimony of the PW-7 and PW-8 when they professed  that they  had seen the appellant and the deceased together  con- suming the liquor. It is highly artificial and appear on its face a make believe story. [113F-H]     3.2.1 An unambiguous extra-judicial confession possesses high  probative value force as it emanates from  the  person who  committed the crime and is admissible in evidence  pro- vided it is free from suspicion and suggestion of its falsi- ty.  But in the process of the proof of the alleged  confes- sion  the court has to be satisfied that it is  a  voluntary one  and  does not appear to be the  result  of  inducement, threat or promise envisaged under s. 24 of the Evidence  Act

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or was brought about in suspicious circumstances to  circum- vent ss, 25 and 26 of the Evidence Act. For this purpose the court  must  scrutinise all the relevant facts such  as  the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and final- ly the actual words used by the accused. [114A-D]     3.2.2  Section 25 of the Evidence Act provides  that  no confession  made  to  a police officer shall  be  proved  as against a person accused of any offence. Section 26 provides that  no  confession made by any person while  he  is  under custody  of  the police officer, unless it be  made  in  the immediate  presence  of  a magistrate, shall  be  proved  as against such person. [114G]     3.2.3  In the instant case, the appellant did  not  make any  confession in the presence of the magistrate. From  the narrative  of the prosecution story it is clear that  PW  10 and  the  appellant did not belong to the same  village  and that  PW-27  and  PW-10 came together  and  apprehended  the appellant  from  his village and took him to village  J  for identification. After he was identified by PW-7 and PW-8  it was stated that he was brought back to the village of  PW-10 and  was  kept  in his company and PW-27  left  for  further investigation.  It is incredible to believe that the  police officer, PW-27 after having got an accused identified  would have left without taking him into custody. He seems to  have created  an artificial scenario of his leaving  for  further investigation  and keeping the appellant in the  custody  of PW-10  to make an extra-judicial confession, with a view  to avoid the rigour of ss. 25 and 108 26.  Nothing  prevented him from taking the appellant  to  a Judicial  Magistrate and having his confession  recorded  as provided under s. 164 of the Crl. P.C. which possesses great probative  value  and affords an unerring assurance  to  the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntary confession to PW-10  and that too sitting in a hotel. The other person  in whose  presence  it  was stated to have been  made  was  not examined  to provide any corroboration to the  testimony  of PW-10.  It would be legitimate, therefore, to conclude  that the  appellant was taken into police custody and the  extra- judicial  confession  was obtained there through  PW-10  who accommodated the prosecution. [115A-E]     3.2.4  It is well settled law that ss. 25 and 26 of  the Evidence  Act  shall be construed  strictly.  Therefore,  by operation  of s. 26 the confession made by the appellant  to PW-10  while  he was in the custody of  the  police  officer shall not be proved against him. [115E]     3.3  The statement said to have been made by the  appel- lant under s 27 of the Evidence Act leading to discovery  of the consequential information, namely. saw blade, is not  of a conclusive nature connecting the appellant with the crime. The recoveries were made long after the arrest of the appel- lant. The blood stains on all the articles had  disintegrat- ed.  So  it was not possible to find whether  it  was  human blood or not. Moreover, from the prosecution evidence it  is clear that the deceased himself was an accused in an earlier murder  case  and it is obvious that he had enemies  at  his back. Absolutely no motive to commit the crime was attribut- ed to the appellant. [115G-H]     4. The conviction and sentence of the appellant for  the offences  under ss. 302 and 201 IPC are set aside. The  bail bond  shall  stand  cancelled. He shall  remain  at  liberty unless he is required in any other case. [116D]     5. Indulging in free fabrication of evidence against  an

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innocent and implicating him in the capital offence punisha- ble under s. 302 IPC, as in the instant case, is a  deplora- ble  conduct  on the part of an investigating  officer.  The liberty of a citizen is a precious one guaranteed by consti- tutional  provisions  and its deprivation shall be  only  in accordance  with law. Before accusing the appellant  of  the commission  of  such a grave crime an  honest,  sincere  and dispassionate  investigation should have been made  to  feel sure  that he alone was responsible to commit  the  offence. [117B; A] 109

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 386 of 1978.     From the Judgment and Order dated 19/20th July, 1977  of the Himachal Pradesh High Court in Crl. A. No. 46 of 1976.     Rakesh Luthra, N.N. Bhatt, L.R. Singh (N.P.) and  lrshad Ahmad for the Appellant.     K.G.  Bhagat, N.K. Sharma and Ms. A.  Subhashini  (N.P.) for the Respondent. The Judgment of the Court was delivered by     K.  RAMASWAMY, J. The appellant, K.C. Sharma,  alongwith two others was charged for the offence punishable under  ss. 302  and  201 read with s. 34 of the Indian Penal  Code  for causing  the death and concealing the dead body of  Joginder Singh.  The  Additional Sessions Judge, Kangra  Division  at Dharamsala  convicted  all the accused under s.  302/34  and directed them to undergo imprisonment for life and to pay  a fine of Rs.500 and also to the sentence of two years  rigor- ous  imprisonment and fine of Rs.500 for the offence  of  s. 201/34,  in default of payment of fine for a further  period of  three  months rigorous imprisonment. All  the  sentences were  directed to run concurrently. On appeal  the  Division Bench  of  the High Court of Himachal  Pradesh  by  judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under  s. 302 IPC and confirmed the conviction and  sentence of  the  appellant and set aside the sentence of  fine.  The leave  having  been granted by this Court, this  appeal  has been filed.     The  narrative  of prosecution case runs thus:  The  de- ceased Joginder Singh, resident of Jogipura. Tah. Kangra  on November,  10,  1974.  while going to  Pathankot  with  some currency  notes in his possession went on his way to  Jassur Village to meet his friend one Bala Pahalwan. On enquiry the latter  was said to be absent in the village.  The  deceased came  in  contact with the appellant and both  went  to  the Dhaba of PW. 7, Joginder Singh Paul to have some drink,  but PW.  7 did not allow them to take liquor inside  the  Dhaba. Both  of  them  sat in the back side of the  Dhaba  to  have drink. PW. 8 Tamil Singh and one Jai Onkar were also invited to  have drink with them. All of them together consumed  the liquor  and  ate meat. The deceased paid the  price  of  the liquor and meat and when he had become tipsy, PW. 8 suggest- ed to take the deceased to Pathankot or to keep him at Dhaba 110 Beli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased  to Kangra.  Thereafter the appellant and the  deceased  boarded the Truck No. HPK 4179 driven by A. 2, Madho Ram, Driver and A.  3,  Bihari Lal, Cleaner. PW. 8 and the  other  left  the place.  The truck was loaded with the bricks and the  appel- lant  and the deceased sat on the bricks in the body of  the

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truck and went towards Kangra side. PW. 12, the Octroi Clerk at Nagpur states that the truck driven by A. 2 went  towards Baijnath.  PW.  13. Burfiram, Chowkidar at  Ichhi  Marketing Co-op.  Society spoke that he saw the truck driven by  A.  2 and  A. 3 and got unloaded the bricks at the godown  of  the said  Society  at about mid-night but the deceased  was  not seen  there. It is further the case of the prosecution  that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron-screw driver and gave blows on the  head and face of the deceased. Consequently the deceased was half dead.  He  was thrown out of the truck but finding  him  not dead  put him in the truck and all the accused  severed  the head with an iron saw and burried the trunk under stones  in the  outskirts  of the village Dhadhu and carried  the  head with  them  in  the truck. The head was hidden  at  a  place between Guggal and Chaitru on the Kachcha road branching off the  main road to the village Ichhi. On November  13,  1974, PW.  6  Karrudi Ram, the Chowkidar of  Mauza  Bandi,  during twilight, had gone to answer nature’s call at the  outskirts of  the  village Dhadhu and noticed the blood stains  and  a torn pant near the stones. On further probe the hand of  the deceased was seen projecting from the stones and he  noticed the  dead body. He went and reported to Bidhu Ram,  PW.  10. the Pradhan of the village and two others. All of them  went to  the  spot, noticed the dead body. PW. 10  kept  a  watch during the night. On November 14, 1974 at about 7.00 or 8.00 a.m.  PW. 6 went to the Police Station and lodged  the  com- plaint.  PW.  26, the A,S.I. recorded and issued  the  First Information  Report and proceeded to the spot. He  recovered the articles on and near the dead body under PW. 11,  Panch- nama and conducted inquest and sent the dead body for  post- mortem.  The Doctor conducted autopsy. On November 15.  1974 the  parents of the deceased came to the Police Station  and identified  the  clothes of the deceased.  On  November  16, 1974, PW. 27, the Sub Inspector of the Police took over  the investigation. He contacted one Kuldip Singh, a Conductor in Kapila  Transport Company from whom he came to know that  on November 10, 1974, the deceased and the appellant were  seen consuming  liquor at Jassur. Thereafter PW. 27 and  PW.  10, Bidhu  Ram, Pradhan of Guggal Panchayat went to  the  appel- lant’s  village Sahaura and was sent for the appellant.  The appel- 111 lant  on  coming  to him was found to have  shaved  off  his moustaches. PW. 27 had enquired as to why he had removed his moustoches  upon  which the appellant was  claimed  to  have replied that he had removed his moustaches due to demise  of his maternal uncle. PW. 10 and PW. 27 took the appellant  to Jassur  for identification purposes. The  appellant  pointed out PW. 7, the owner of the Dhaba and the latter  identified the appellant as one seen in the company of the deceased and having  consumed  liquor. Equally of PW. 8.  Thereafter  the appellant was taken back to PW. 10’s village and PW. 27 left the  village for further investigation. On enquiry  made  by PW. 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested PW. 10 whether he could save him if he  would  tell the truth. Thereupon PW. 10 stated  that  he could not save him but if he would speak the truth he  would help  himself.  Thereupon the appellant was stated  to  have made  extra  judicial confession giving out the  details  of consuming liquor with the deceased; their going together  on the truck, the quarrel that ensued between them; his hitting the deceased with the screw-driver, throwing the..dead body,

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thinking that he died, on the road realising that he was not dead,  lifting him and putting him in the body of the  truck and  all the accused cutting the head of the  deceased  with the  saw blade and burrying the trunk under the  stones  and hiding  the  head at different place and  thereby  they  had committed the crime. PW. 10 gave this information to PW.  27 on the next day, namely, November 25, 1974. Thereon all  the accused were arrested. On November 27, 1974, the Driver A. 2 was  stated  to  have made a statement under s.  27  of  the Evidence Act. Ex. PW. 9/A leading to discovery of the hidden head  at a place between Guggal and Chaitru. This  statement had  been made in the presence of PW. 9 and another and  the severed head was recovered under Memo Ex. PW. 9/B. This  was in the presence of PW. 10 and another. The head was sent  to the Doctor for post-mortem examination. The Doctor  verified and  found  it to be correct and the  doctor  corelated  the trunk  of  the dead body and the head belonging to  the  de- ceased. On November 30., 1974, pursuant to statement made by the appellant and A. 3 under Ex. PW. 16/B leading to recover one iron-saw without handle and a piece of cloth-wrapped  to one of its sides was recovered from a bush near Kathman  Mor and PW. 10 and another are Panch witnesses and found the saw blade  contained with blood stains and a piece of  cloth  of torn  pant.  They  were recovered under Ex.  PW.  16/C.  The clothes  of  the appellant were also claimed  to  have  been recovered  from  his  house under Ex.  PW.  16/H  which  was stained  with  blood  and the same  were  recovered  in  the presence  of  PW. 16 The Serologist found the  blood  stains disintegrated on all the 112 items.  On the basis of this evidence the  prosecution  laid the  chargesheet against all the accused. As stated  earlier the  appellant  now stands convicted and sentenced  for  the offences  under ss. 302 and 201, I.P.C. The two  others  did not file appeal against their convict under s. 201 I.P.C.     The  entire  prosecution case rested  on  circumstantial evidence. As regards the appellant, the circumstances relied on  the prosecution are three, namely,(i) the appellant  and the deceased were last seen together by PW. 7, the owner  of the  liquor  shop  Dhaba and PW. 8, the  companion  who  had liquor  with the deceased and the appellant; (ii) the  extra judicial  confession made to PW. 10, the Pradhan  of  Guggal Gram Panchayat; and (iii) the discovery of saw blade  pursu- ant to the statement made by the appellant and A. 3 under s. 27 of the Evidence Act.     The  question,  therefore, is  whether  the  prosecution proved  guilt of the appellant beyond all reasonable  doubt. In a case of circumstantial evidence. all the  circumstances from which the conclusion of the guilt is to be drawn should be  fully and cogently established. All the facts so  estab- lished should be consistent only with the hypothesis of  the guilt of the accused. The proved circumstances should be  of a conclusive nature and definite tendency, unerringly point- ing towards the guilt of the accused. They should be such as to  exclude  every  hypothesis but the one  proposed  to  be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstances by itself be conclusive but  cumula- tively  must  form unbroken chain of events leading  to  the proof of the guilt of the accused. If those circumstances or some  of  them  can be explained by any  of  the  reasonable hypothesis  then the accused must have the benefit  of  that hypothesis.     In  assessing the evidence imaginary possibilities  have

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no role to play. What is to be considered are ordinary human probabilities.  In other words when there is no direct  wit- ness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be  fully established. The chain of events furnished by  the circumstances should be so far complete as not to leave  any reasonable  ground for conclusion consistent with the  inno- cence of the accused. If any of the circumstances proved  in a  case are consistent with the innocence of the accused  or the chain of the continuity of the circumstances is  broken, the accused is entitled to the benefit of the doubt. 113     In  assessing the evidence to find these principles.  it is  necessary  to  distinguish between facts  which  may  be called  primary or basic facts on one hand and inference  of facts to be drawn from them. on the other. In regard to  the proof of basic or primary facts. the court has to judge  the evidence  in  the ordinary way and in  appreciation  of  the evidence  in  proof of those basic facts or  primary  facts, there  is  no scope for the application of the  doctrine  of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused  or not is another aspect and in dealing  with  this aspect  of the problem  the doctrine of benefit would  apply and  an inference of guilt can be drawn only if  the  proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel  all the way to establish fully the chain  of  events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of  conclu- sive  nature  and  tendency and they should be  such  as  to exclude all hypothesis but the one proposed to be proved  by the  prosecution. In other words. there must be a  chain  of evidence so far consistent and 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 probability the act must have been done  by  the accused and the accused alone.     The question emerges, therefore is whether the  prosecu- tion  has  established  the  three  circumstantial  evidence heavily banked upon by the prosecution in proof of the guilt of  the  appellant. The first circumstance is that  the  de- ceased  and the appellant were last seen together by  PW.  7 and  PW. 8. From the evidence it is clear that there  is  no prior  intimacy  of  the appellant and  the  deceased.  They happened to meet per chance. Equally from the evidence it is clear  that PW. 7, the liquor shop owner and PW. 8  who  had liquor with the appellant and the deceased are also absolute strangers  to  the deceased and  the  appellant.  Admittedly there is no identification parade conducted by the  prosecu- tion tO identify the appellant by PW. 7 or PW. 8. The appel- lant was stated to have pointed out to PW. 7 as the one that sold  the liquor and PW-8 consumed it with him and  the  de- ceased.  Therefore it is not reasonably possible  to  accept the  testimony of PW. 7 and PW. 8 when they  professed  that they  have  seen  the appellant and  the  deceased  together consuming the liquor. It is highly artificial and appears on its face a make believe story. 114     The next piece of evidence is the alleged extra judicial confession  made by the appellant to PW. 10. An  unambiguous extra  judicial  confession possesses high  probative  value force as it emanates from the person who committed the crime

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and  is  admissible  in evidence provided it  is  free  from suspicion and suggestion of its falsity. But in the  process of  the proof of the alleged confession the court has to  be satisfied that it is a voluntary one and does not appear  to be  the  result of inducement, threat or  promise  envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26  of the Evidence Act. Therefore, the court has to look into  the surrounding  circumstances  and to find  whether  the  extra judicial  confession  is  not inspired by  any  improper  or colateral consideration or circumvention of the law suggest- ing that it may not be true one. For this purpose the  court must scrutinise all the relevant facts such as the person to whom  the confession is made, the time and place  of  making it,  the circumstances in which it was made and finally  the actual words used by the accused. Extra judicial  confession if  found to be voluntary, can be relied upon by  the  court alongwith  other  evidence on record.  Therefore,  even  the extra  judicial confession will also have to be proved  like any other fact. The value of the evidence as to the  confes- sion depends upon the verocity of the witness to whom it  is made  and the circumstances in which it came to be made  and the actual words used by the accused. Some times it may  not be possible to the witness to reproduce the actual words  in which  the  confession  was made. For that  reason  the  law insists on recording the statement by a Judicial  Magistrate after  administering all necessary warnings to  the  accused that it would be used as evidence against him.     Admittedly PW. 10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is  clear that PW. 27, and PW. 10 came together  and  appre- hended  the  appellant  from his village and  was  taken  to Jassur for identification. After he was identified by PW.  7 and  PW. 8 it was stated that he was brought back to  Gaggal village  of  PW. 10 and was kept in his company and  PW.  27 left  for further investigation. Section 25 of the  Evidence Act  provides  that no confession made to a  police  officer shall be proved as against a person accused of any  offence. Section  26 provides that no confession made by  any  person while  he is under custody of the police officer, unless  it be made in the immediate presence of a magistrate, shall  be proved  as  against such person. Therefore,  the  confession made by an accused person to a police officer is  irrelevant by  operation of Section 25 and it shall be  proved  against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not 115 be  proved  against the appellant unless it is made  in  the immediate  presence of the magistrate, by operation of  Sec- tion  26 thereof. Admittedly the appellant did not make  any confession in the presence of the magistrate. The  question, therefore, is whether the appellant made the extra  judicial confession while he was in the police custody. It is incred- ible  to  believe  that the police officer,  PW.  27,  after having  got identified the appellant by PW. 7 and PW.  8  as the  one  last seen the deceased in his company  would  have left  the appellant without taking him into custody.  It  is obvious, that with a view to avoid the rigour of Section  25 and 26, PW. 27 created an artificial scenerio of his leaving for  further  investigation and kept the  appellant  in  the custody  of  PW. 10, the Pradhan to make an  extra  judicial confession.  Nothing prevented PW. 27 to take the  appellant to a Judicial Magistrate and had his confession recorded  as provided under section 164 of the Crl. P.C. which  possesses great  probative value and affords an unerring assurance  to

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the  court. It is too incredulous to believe that  for  mere asking  to  tell the truth the  appellant  made  voluntarily confession  to PW. 10 and that too sitting in a  hotel.  The other  person in whose presence it was stated to  have  been made  was not examined to provide any corroboration  to  the testimony  of PW. 10. Therefore, it would be  legitimate  to conclude that the appellant was taken into the police custo- dy  and  while  the accused was in the  custody,  the  extra judicial confession was obtained through PW. 10 who accommo- dated the prosecution. Thereby we can safely reach an  irre- sistible conclusion that the alleged extra judicial  confes- sion  statement  was  made while the appellant  was  in  the police custody. It is well settled law that Sections 25  and 26  shall be construed strictly. Therefore, by operation  of Section  26 of the Evidence Act, the confession made by  the appellant  to  PW.  10 while he was in the  custody  of  the police  officer  (PW. 27) shall not be  proved  against  the appellant.  In  this view it is unnecessary to go  into  the voluntary nature of the confession etc.     The  third circumstance relied on is the statement  said to  have been made by the appellant under section 27 of  the Evidence  Act  leading  to discovery  of  the  consequential information,  namely,  saw  blade, is not  of  a  conclusive nature connecting the appellant with the crime. The recover- ies  were long after the arrest of the appellant. The  blood stains on all the articles were disintegrated. So it was not possible to find whether it is human blood or not. Moreover, from the prosecution evidence it is clear that the  deceased himself  was an accused in an earlier murder case and it  is obvious  that  he  had enemies at his  back. Absolutely no motive to commit crime was attributed to the appellant. 116     No doubt the appellant and two others have been  charged for  an offence under section 302 and 201 read with  Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section  302/34, I.P.C. and that there is no independent charge under section 302,  I.P.C. If, from the evidence, it is  established  that any one of the accused have committed the crime  individual- ly,  though the other accused were acquitted,  even  without any  independent  charge under section 302,  the  individual accused  would be convicted under section 302,  I.P.C.  sim- plicitor. The omission to frame an independent charge  under section  302,  I.P.C. does not vitiate  the  conviction  and sentence under section 302, I.P.C.     Thus considered we find that the prosecution has utterly failed  to prove any one of the three circumstances  against the  appellant and the chain of circumstances was broken  at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary  fact all the three circumstances, much less  beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime. Therefore,  the  appellant  is entitled to  the  benefit  of doubt. The conviction and sentence of the appellant for  the offences under section 302 or Section 201 of I.P.C. are  set aside. The appellant is on bail granted by this Court  after nine  years’ incarceration. The bail bond shall  stand  can- celled. He shall remain at liberty unless he is required  in any other case.     Before  parting with the case, it is necessary to  state that from the facts and circumstances of this case it  would appear  that the investigating officer has taken the  appel- lant, a peon, the driver and the cleaner for ride and  tram- pled upon their fundamental personal liberty and lugged them

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in the capital offence punishable under section 302.  I.P.C. by  freely  fabricating evidence against the  innocent.  Un- doubtedly. heinous crimes are committed under great  secrecy and that investigation of a crime is a difficult and tedious task.  At the same time the liberty of a citizen is  a  pre- cious  one guaranteed by Art. 3 of Universal Declaration  of Human  Rights and also Art. 21 of the Constitution of  India and  its deprivation shall be only in accordance  with  law. The  accused  has the fundamental right  to  defend  himself under Art. 10 of Universal Declaration of Human Rights.  The right to defence includes right to effective and  meaningful defence at the trial. The poor accused cannot defend  effec- tively  and  adequately. Assigning  an  experienced  defence counsel to an indigent accused is a facet of fair  procedure and  an  inbuilt right to liberty and life  envisaged  under Arts. 117     19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the  responsi- bility  of the law enforcement agencies. Before accusing  an innocent person of the commission of a grave crime like  the one punishable under section 302, I.P.C., an honest, sincere and  dispassionate investigation has to be made and to  feel sure  that the person suspected of the crime alone  was  re- sponsible to commit the offence. Indulging in free  fabrica- tion of the record is a deplorable conduct on the part of an investigating  officer which under-mines the  public  confi- dence reposed in the investigating agency. Therefore, great- er  care and circumspection are needed by the  investigating agency  in  this regard. It is time that  the  investigating agencies,  evolve new and scientific investigating  methods, taking  aid of rapid scientific development in the field  of investigation.  It is also the duty of the State, i.e.  Cen- tral  or State Government to organise  periodical  refresher courses for the investigating officers to keep them  abreast of the latest scientific development in the art of  investi- gation and the march of law so that the real offender  would be brought to book and the innocent would not be exposed  to prosecution.     Though Art. 39A of the Constitution provides fundamental rights  to equal justice and free legal aid and  though  the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is  common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high  time that senior counsel practicing in the court  con- cerned, volunteer to defend such indigent accused as a  part of  their  professional duty. If these  remedial  steps  are taken and an honest and objective investigation is done,  it will  enhance  a sense of confidence of the  public  in  the investigating agency.     We  fervently hope and trust that concerned  authorities and  Senior Advocates would take appropriate steps  in  this regard. The appeal is accordingly allowed. P.S.S.                                   Appeal allowed. 118