02 September 2004
Supreme Court
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PARAMANANDA PEGU Vs STATE OF ASSAM

Bench: P. VENKATARAMA REDDI,B.P. SINGH
Case number: Crl.A. No.-001501-001501 / 2003
Diary number: 21444 / 2003
Advocates: Vs CORPORATE LAW GROUP


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CASE NO.: Appeal (crl.)  1501 of 2003

PETITIONER: Parmananda Pegu                                       

RESPONDENT: State of Assam                                              

DATE OF JUDGMENT: 02/09/2004

BENCH: P. VENKATARAMA REDDI & B.P. SINGH

JUDGMENT: J U D G M E N T

P. VENKATARAMA REDDI, J.  

              The appellant Paramananda Pegu along with Jitu  Pegu were charged under Sections 365 and 302 IPC for  abducting and killing two minor boys, namely, Robindra Taid  and Keshav Taid, aged 6 and 10 years respectively on June  28, 1999.  After trial, they were convicted and sentenced to  death by the Sessions Judge, Dhemaji by his judgment  dated 04.03.2002.  On appeal the High Court confirmed the  conviction and sentence.  This appeal has been preferred by  Parmananda Pegu only.  It appears that the other convict  Jitu Pegu is absconding.  As per the prosecution case, the  victim boys were initially kidnapped / abducted with a view  to demand ransom from their relatives but when the  accused suspected that the villagers were approaching in  search of the boys, the accused decided to kill them.         The genesis of the case began with a report which was  lodged with Gogamukh Police Post on the morning of June  29, 1999  by  Basanti Taid (P.W.5), the mother of Robindra.   She stated that her son Robindra and her husband’s  brother’s son by name Keshav who was residing with her,  could not be traced since 5.30 P.M. of the previous day  despite a search made and that on the morning of the  following day, the dead body of Keshav was found in a  stream beneath a damaged boat but her son Robindra was  still untraceable.  Investigation was then taken up by Sub- Inspector of Police (P.W.29).  He recovered the dead body of  Keshav at the place pointed out by P.W.5 and others.  He  then conducted inquest on the dead body of Keshav and  prepared a report to which PWs 17 and 18 were signatories.   The body was sent to Dhemaji Civil Hospital on the same  day i.e. 29.6.1999 for postmortem examination.  The  postmortem of the body of Keshav revealed that he was  strangulated to death. The prosecution case then runs as follows: By interrogating the friends of the victim boys who  were playing with them in the evening of 28th June, 1999,  the I.O. suspected Jitu, who by then left the village  Baligaon. Having got information on the next day that he  was at village Majuli, PW22 arrested and interrogated him.  Jitu narrated that he, the appellant Parmananda and four  others formed themselves into a group named as "All Assam  Tiger Force" and kidnapped and murdered the boys. The I.O.  then arrested the appellant and others named by Jitu on  1.7.1999 itself.  Pursuant to the disclosure made by Jitu and  on being led by him, PW22 recovered the dead body of  Robindra  on 01.07.1999 from the  mud embankment at a

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bamboo grove. PWs 17 and 18 witnessed the same.   Accused Jitu also took the police and other villagers to the  place from where the body of Keshav was recovered. On  4.7.1999, Jitu led the I.O. and others to the place where the  silver chain of deceased Robindra was hidden. The silver  chain was identified by PW5 as one worn by Robindra and  the same was seized in the presence of PW4 and others.  On  4.7.1999, the accused, at the instance of the police,  recreated the scene of crime in the presence of Shri         C.R. Das, Executive Magistrate (who died and could not be  examined) and other villagers viz.  PWs 25, 28 and 29.  This  was treated as extra-judicial confession. The post mortem of  the dead body of Robindra was done by the Senior Medical  Officer on 2.7.1999\027PW23.  He found the dead body in a  decomposed state. Rigor mortis was absent. Eyes bulged out  and got damaged.  The tongue was in a protruded position  and mouth was half open.  There was no vivid wound or  bruise over the skin.  There was no ligature mark over the  body.  Due to decomposition simple abrasions could not be  found.  On internal examination he found fracture in the mid  part of the parietal bones and the blood clot on the mid part  of the upper surface of the brain.  The Medical Officer opined  that the cause of death was the head injury.  The accused  were produced before the Addl. Chief Judicial Magistrate  Dhemaji (P.W.22) for recording the confessional statement.   The Magistrate, after following the due procedure, recorded  the confession of each of the two accused.  However, the  other four persons, who were produced, declined to make  the confession. The confessional statement of Jitu Pegu is as  follows: "As early as in March this year, we, some youths,  sat in a meeting in a field to start an organization,  "Assam Tiger Force" by name. Those other than  me were Paramananda, Kanta Pegu, Kanuram  Pegu,  Ajanti Pegu, Kirtinath Doley and Bhuban  Nath. The organization started. I was  the  Secretary. Kanta Pegu was the President. That  very day we decided at the meeting to kidnap  Rebat Khanikar’s son for ransom. All of us  together we tried thrice, but could not kidnap the  boy. Later we decided to kidnap Keshab Taid and  Rabindra Taid, two minor boys of our village, for  ransom. On 28/6/99 I sent for Keshab and Bhaiti  (Rabin). I had engaged Prasanta, Manjit and  Harekrishna of our village for the purpose. They  (Keshab and Rabin) were playing. Then I took  them to a jamu tree, saying that I would give  them Jamu. It was then around 5.30. I detained  Keshab and Rabin against their will and rebuked  the rest three away. Keshab and Bhaiti wanted to  leave, but I enticed them to stay on. Thereafter I  called Parama Pegu in.  We sat down there for a  while.  Then we learnt that the villagers were  searching for the boys. Then I and Parama  decided to kill the boys. Accordingly we tied  Keshab’s hands up and gagged him with paddy  straw. Then we strangled him to death and threw  the body into the nearby water. We then placed a  boat on the body in overturned position. Parama  took Bhaiti (Rabin) along and strangled him to  death not far away. He threw the body to the  ’dhap’ (a raised ground along a boundary of a  yard\027as per Translator) in the bamboo  grove.  Then we left the place. On Wednesday I went to  Barpamua in Majuli where the police arrested me."    

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The confessional statement of appellant Parmananda Pegu is  as follows: "In March this year I and some youths sat in a  meeting in a field to start an organization, "Assam  Tiger Force" by name. The organization was  started. I, Ajit Pegu, Kantaram Pegu, Mahananda  Pegu, Kirtinath Doley and Sadananada Pegu were  there in the organization. Jitu Pegu, was the  Secretary of the organization. Kanta Pegu was the  President. In that meeting we decided to  kidnap  Rebat Khanikar’s son for ransom. We tried thrice  to kidnap that boy, but failed. Then we decided  that we would kidnap Keshab and Rabin alias  Bhaiti of our village for a ransom. Accordingly Jitu  brought Keshab  and Rabin along to a jamu tree.   Jitu called me.  Reaching there I found Rabin and  Keshab there.  There we sat down.  Leaving them  there, we were searching for a place (to hide the  boys).  But after a little while we heard the noise  of a crowd.  Then we decided that we would kill  the boys.  The rest of our organization had not  turned up.  I took Bhaiti (Rabin) to a bamboo  grove to kill him there.  Jitu took the older boy,  Keshab, to kill.  I killed Bhaiti by strangling and  left the body on the ’dhap’ in the bamboo grove.   Thereafter I came home.  In the morning on  30.6.99 the police arrested me."  

       In the course of examination under Section 313 Cr.P.C.  the two accused retracted from the confession made earlier  and took the stand that it was not voluntary and they were  tortured and tutored by the police.  Both the accused  examined themselves as defence witnesses to depose that  the confession was not voluntarily made and that they were  innocent. The appellant further stated that a false statement  was given by Jitu Pegu implicating him in the murder. The High Court analysed the incriminating  circumstances against the accused as follows: 1.      The accused and the deceased were last seen together  on 28-6-1999 at about 5 p.m. as stated by prosecution  witnesses.

2.      Recovery of silver chain of deceased\027Robindra Taid by  PW29 and others from the place where the accused  kept (silver chain) (Material Ext.1) which was being  worn by the deceased-Robindra.

3.      Accused-Jitu Pegu fled away to Majuli.

4.      Confessional statement made by the accused.

5.      Extra Judicial Confession made by the accused before  PWs 25, 28 & 29 and some others.

6.      Recovery of dead body of deceased-Robindra at the  instance of the accused Jitu Pegu.

7.      Opinion of Medical Officers (PWs 23 & 24).

We shall examine whether any of the circumstances  could be pressed into service in judging the complicity of the  appellant in the crime. The last seen evidence is the first and foremost  circumstance that has been relied upon by the High Court.

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However, we find no evidence that the victim boys were in  the company of the appellant on the evening of 28.6.1999.  PWs 1 to 3 categorically stated that it was Jitu Pegu who  coaxed them to bring the boys Robindra and Keshav and  detained them with him and quipped to PWs 1 to 3 that they  would be returning by a different route later. It was Jitu  Pegu who allegedly gave them threat not to reveal it to  others. Nowhere the name of the appellant was mentioned.  On the other hand, all of them stated that they did not know  the other accused namely the appellant herein. The second circumstance is also relatable to the first  accused Jitu Pegu only. The recovery of silver chain of  Robindra was at the instance of Jitu Pegu, but not the  appellant. The seizure list dated 4.7.1999 relating to silver  chain is Ex.1. It was prepared by the I.O.\027PW29 and  witnessed by late Shri C.R. Das, Executive Magistrate and  PWs 4 & 6. It is evident from the said document that the  silver chain was found and seized at the place shown by the  accused Jitu Pegu. The name of the appellant does not figure  in that document. PW4, who is the witness for the seizure,  stated: "in our presence, Jitu Pegu told the Magistrate that  he had kept the chain. The police seized the chain". PW4  further stated that he did not know the other accused. This  is what PW6 deposed: "on the way back with the police  party, Jitu Pegu recovered a silver chain in the yard of  Padma Nath Doley (PW4) where he had thrown it and  handed it over to the police. The police seized the silver  chain. Ex.1 is the seizure list and Ex.1(ii) is my signature.   M.Ex.1 is the silver chain. The silver chain belonged to  Robindra". Thus, the finding of High Court with regard to the  second piece of circumstantial evidence, insofar as the  appellant is concerned, is clearly unsustainable. The third circumstance ex-facie does not apply to the  appellant because it was Jitu Pegu only who absconded after  the incident. The fourth and fifth circumstances are the confessional  statement and extra-judicial confession which we shall  advert to later. As regards circumstance No.6 i.e. recovery of dead  body of Robindra at the instance of Jitu Pegu, the appellant  is not in the picture. The High Court also stated so. Almost  all prosecution witnesses viz., PWs 17, 14, 27, 12 & 8 stated  that the body of Robindra was recovered at the instance of  Jitu Pegu and Jitu Pegu led the police to the bamboo grove.  No one connected Parmanand to the recovery of the dead  body of any of the victim boys. Even the I.O.(PW29)  categorically stated "as shown by Jitu Pegu, I found  Robindra Taid’s body in a ditch in a bamboo grove and held  inquest over it". However, we have referred to the other  evidence on record only to steer clear of the doubt created  by the statement in the inquest report that gives an  impression that both Jitu Pegu and Parmanand led the police  and those present at the inquest to the place where the  dead body was found. But such statement cannot be true  having regard to the clear evidence of PWs 17 and 29 on  this point.  We shall now proceed to consider the circumstance No.  5 i.e. extra judicial confession. This extra judicial confession,  according to the prosecution, consists of the narration of   incidents on the crucial day by recreating the crime scenario  in the presence of the Executive Magistrate (who was not  examined on account of his death) and PWs 25, 26 & 28.  The High Court having held in the first sentence of  paragraph 11 that "the extra judicial confession which was  made in the presence of the police as stated by PWs 25, 28

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& 29 was inadmissible in evidence in view of the provisions  of Sections 25 & 26 of the Evidence Act", proceeded to say  in the second sentence as follows: "In this case, we find that the accused persons  had also made extra judicial confession before  PW22 and subsequently, there was a verification  of the said confession, when the accused in  presence of the above witnesses\027PWs 28 and 29  had shown the place, where the incident took  place and reconstructed the scene of occurrence  by pointing the place and the manner in which the  incident took place."

The High Court proceeded on the wrong premise that  there was an extra judicial confession before PW22  (Additional C.J.M). The High Court overlooked the fact that  the confession recorded on 6.7.1999 by PW22 was a judicial  confession and PW22 did not come into the picture at any  time prior to that. Obviously, the High Court laboured under  the wrong impression that the Magistrate in whose presence  the scene was recreated was PW22 whereas the alleged  extra judicial confession was in the presence of the  Executive Magistrate who could not be examined. The High  Court fell into an error of fact in thinking that there were two  extra judicial confessions, one in the presence of PWs 25, 28  & 29 (I.O.) and another in the presence of PWs 22, 28 & 29.  Notwithstanding this error committed by the High Court, we  have to consider whether the extra judicial confession  sought to be relied by the prosecution can be acted upon. Section 26 of the Indian Evidence Act enjoins: "no  confession made by any person while he is in the custody of  a police officer, unless it be made in the immediate presence  of the Magistrate, shall be proved as against such person".  The question is whether the alleged confession made by the  appellant before the Executive Magistrate and other  witnesses namely PWs 25, 26 & 28 in the course of  recreating the crime scenario could be given any weight.  First of all, it must be noted that the prosecution has not  filed any notes or record of proceedings kept by the  deceased Executive Magistrate. No explanation is  forthcoming for not producing the same though it is an  official document which was accessible to the prosecution.  PWs 25, 26 and 28 claimed that at the instance of the police  they accompanied the two accused, the Executive Magistrate  and the I.O. to various places shown by the accused and  they heard the accused including the present appellant  confessing to the murder.  Their evidence, however, does  not inspire confidence that it is credible.  PW 25 said in his  cross examination that they were kept at some distance  away from the accused and the Executive Magistrate and the  police had questioned the two accused.  If the said three  witnesses were called for the specific purpose of hearing the  confession, if any, made by the accused, they would not  have remained at a distance.  It appears that the exercise of  recreation of the incidents relating to crime was primarily  meant to be taken note of by the Executive Magistrate.   Though PWs 25, 26 and 28 might have accompanied them,  there is a doubt whether they were within the hearing  distance from the accused and whether they did really hear  what the accused had said. Otherwise there was no scope  for PW 26 deposing that Parmanand confessed to the effect  that he carried Keshav some 200 meters south west of the  Jamun tree and it was there that he had killed Keshav and  put the body beneath the boat in a canal.  Thus the  confession attributable to Jitu Pegu, as per the prosecution

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case, has been attributed to the appellant Parmanand as if  Parmanand had killed Keshav and concealed the dead body  beneath the boat.  It is not the prosecution case that  Parmanand had confessed of having killed Keshav. Thus PW  26 completely contradicts PW 25. The reason perhaps is that  none of them heard the accused clearly while they were  allegedly narrating the incident to the Executive Magistrate.  Further, according to PW 25, the police also took part in  questioning the accused along with the Executive Magistrate.  The Deputy Superintendent of Police was also present on  that occasion.  In these circumstances a serious doubt arises  as to the voluntariness of the confession said to have been  made in the presence of the Executive Magistrate and  others.  After PW 26 made a somersault of the prosecution  case, PW 28 had taken care to tell the story consistent with  the prosecution version. He stated that Parmanand  (appellant) made a confession of having strangulated  Robindra and placed the body in a ditch.  In fact, there was  no strangulation as per the medical evidence. If so it is  doubtful whether PW 28 or the other two witnesses did at all  hear the appellant making the confession.  We have,  therefore, no option but to discard the evidence of PWs 25,  26 and 28 speaking to the alleged confession made by the  appellant in their presence and in the presence of the  Executive Magistrate. The High Court readily assumed that  the confession was made in the presence of PWs 25 and 28  (PW 26 having been omitted by the High Court) without  critical analysis and evaluation of the evidence.        The medical evidence is the last circumstance  purportedly relied upon by the High Court.   We are unable  to understand how the High Court has put the medical  evidence against the appellant.  The medical evidence does  not support the prosecution version of strangulation of  Robindra Taid.  We shall elaborate this aspect in the course  of discussion of the next point.         The foremost amongst the factors that are sought to be  relied upon by the prosecution is the retracted confession of  the appellant recorded under Section 164 Cr.P.C.  The  confession has been extracted supra in verbatim.  Before  acting on a confession made before a Judicial Magistrate in  terms of Section 164, the Court must be satisfied first that  the procedural requirements laid down in Sub-sections (2) to  (4) are complied with.  These are salutary safeguards to  ensure that the confession is made voluntarily by the  accused after being apprised of the implications of making  such confession. Looking at the confessional statement  (Ext.8) coupled with the evidence of PW 22, the then Addl.  Chief Judicial Magistrate, Dhemaji, we have no doubt in our  mind that the procedural requirements have been fulfilled.  Inter alia, PW 22 deposed that after cautioning the accused  that the confessional statement, if made, will be used in  evidence against them, he gave three hours time for  reflection during which the accused were kept in a room  attached to the Court in the immediate presence of an office  peon.  PW22 further stated that it appeared to him that the  accused made the statement voluntarily. A memorandum as  required by sub-Section (4) was also recorded. Thus the first  requirement for acting on a confession is satisfied but that is  not the end of the matter.  The Court, called upon to  consider the evidence against the accused, should still see  whether there are any circumstances appearing from the  record which may cast a doubt on the voluntary nature of  the confession.  The endeavor of the Court should be to  apply its mind to the question whether the accused was free  from threat, duress or inducement at the time of making the

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confession. In doing so, the Court should bear in mind, the  principle enunciated in Pyare Lal  vs. State of Rajasthan  [(1963) Supp.1 SCR 689] that under Section 24 of the  Evidence Act, a stringent rule of proof as to the existence of  threat, duress or inducement should not be applied and a  prima facie opinion based on evidence and circumstances  may be adopted as the standard laid down. To put it in other  words, "on the evidence and the circumstances in a  particular case it may appear to the Court that there was a  threat, inducement or promise, though the said fact is not  strictly proved". Having thus reached a finding as to voluntary nature of  a confession, the truth of the confession should then be  tested by the Court.  The fact that the confession has been  made voluntarily, free from threat and inducement, can be  regarded as presumptive evidence of its truth. Still, there  may be circumstances to indicate that the confession cannot  be true wholly or partly in which case it loses much of its  evidentiary value.         In order to be assured of the truth of confession, this  Court, in a series of decisions, has evolved a rule of  prudence that the Court should look to corroboration from  other evidence. However, there need not be corroboration in  respect of each and every material particular. Broadly, there  should be corroboration so that the confession taken as a  whole fits into the facts proved by other evidence. In  substance, the Court should have assurance from all angles  that the retracted confession was, in fact, voluntary and it  must have been true.  The law on the subject of retracted  confession has been succinctly laid down by a three Judge  bench of this Court in Subramania Goundan Vs. State of  Madras [(1958) SCR 428] which lays down: "The next question is whether there is  corroboration of the confession since it has been  retracted. A confession of a crime by a person,  who has perpetrated it, is usually the outcome of  penitence and remorse and in normal  circumstances is the best evidence against the  maker. The question has very often arisen  whether a retracted confession may form the basis  of conviction if believed to be true and voluntarily  made. For the purpose of arriving at this  conclusion the court has to take into consideration  not only the reasons given for making the  confession or retracting it but the attending facts  and circumstances surrounding the same. It may  be remarked that there can be no absolute rule  that a retracted confession cannot be acted upon  unless the same is corroborated materially. It was  laid down in certain cases one such being In re  Kesava Pillai [ILR 53 Mad 160 : (AIR 1929  Mad 837)] (B) that if the reasons given by an  accused person for retracting a confession are on  the face of them false, the confession may be  acted upon as it stands and without any  corroboration. But the view taken by this Court on  more occasions than one is that as a matter of  prudence and caution which has sanctified itself  into a rule of law, a retracted confession cannot be  made solely the basis of conviction unless the  same is corroborated one of the latest cases being  Balbir Singh Vs. State of Punjab (S) AIR 1957  SC 216 (C), but it does not necessarily mean that  each and every circumstance mentioned in the  confession regarding the complicity of the accused

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must be separately and independently  corroborated nor is it essential that the  corroboration must come from facts and  circumstances discovered after the confession was  made. It would be sufficient, in our opinion, that  the general trend of the confession is  substantiated by some evidence which would tally  with what is contained in the confession."

The learned Judges then highlighted the difference between  retracted confession and the evidence of an approver or an  accomplice. "Though  under Section 133 of the Evidence Act, a  conviction is not illegal merely because it proceeds  on the uncorroborated testimony of witnesses,  illustration (b) to Section 114 lays down that a  Court may presume that an accomplice is  unworthy of credit unless he is corroborated in  material particulars. In the case of such a person  on his own showing he is a depraved and debased  individual who having taken part in the crime tries  to exculpate himself and wants to fasten the  liability on another. In such circumstances it is  absolutely necessary that what he has deposed  must be corroborated in material particulars. In  contrasting this with the statement of a person  making a confession who stands on a better  footing, one need only find out when there is a  retraction whether the earlier statement, which  was the result of remorse, repentance and  contrition, was voluntary and true or not and it is  with that object that corroboration is sought for.  Not infrequently one is apt to fall in error in  equating a retracted confession with the evidence  of an accomplice and therefore it is advisable to  clearly understand the distinction between the  two. The standards of corroboration in the two are  quite different. In the case of the person  confessing who has resiled from his statement,  general corroboration is sufficient while an  accomplice’s evidence should be corroborated in  material particulars. In addition the Court must  feel that the reasons given for the retraction in the  case of a confession are untrue."

In Pyare Lal, supra, the same principle in regard to  the evidentiary value of retracted confession has been  reiterated. Subba Rao, J. speaking for a four Judge Bench,  stated the legal position thus: "\005A retracted confession may form the legal basis  of a conviction if the Court is satisfied that it was  true and was voluntarily made. But it has been  held that a Court shall not base a conviction on  such a confession without corroboration. It is not a  rule of law, but is only, a rule of prudence. It  cannot even be laid down as an inflexible rule of  practice or prudence that under no circumstances  such a conviction can be made without  corroboration, for a Court may, in a particular  case, be convinced of the absolute truth of a  confession and prepared to act upon it without  corroboration; but it may be laid down as a  general rule of practice that it is unsafe to rely  upon a confession, much less on a retracted  confession, unless the Court is satisfied that the

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retracted confession is true and voluntarily made  and has been corroborated in material    particulars. \005"  

By the use of the expression "corroboration of material  particulars", the Court has not laid down any proposition  contrary to what has been clarified in Subramania  Goundan’s case (supra) as regards the extent of  corroboration required. The above expression does not imply  that there should be meticulous examination of the entire  material particulars. It is enough that there is broad  corroboration in conformity with the general trend of the  confession, as pointed out in Subramania Goundan’s case. The decision of this Court in Chandrakant Chimanlal  Desai vs. State of Gujarat [(1992) 1 SCC 473] has  created some difficulty in understanding the law which is  otherwise so well settled. The learned Judges imported the  observations which were made in  Kashmira Singh  vs.   State of Madhya Pradesh [AIR 1952 SC 159] in the  context of evidentiary value of the confession of co-accused  and applied them to the case of retracted confession.  It  appears that the learned Judges went by the head-note in  the AIR which opens up with the sentence "The confession  of an accused person\005\005\005\005" However, in the text of the  judgment it is crystal clear that the entire discussion and the  statement of law was only with reference to the confession  of the co-accused.  While clarifying that the confession of  the co-accused is not evidence in the ordinary sense of the  term as pointed out by the Privy Council, this Court  observed in Kashmira Singh’s case that such a confession  cannot be made the foundation of a conviction and can only  be used in support of other evidence. In Chimanlal’s case, the learned Judges, after  referring to the Head-note portion of the AIR 1952 SC 159,  proceeded to apply the test applicable to the confession of  the co-accused to a case of retracted confession. The Court  observed: "The High Court has on the other hand made this  confessional statement as the basis and has then  gone in search for corroboration. It concluded that  the confessional statement is corroborated in  material particulars by prosecution witnesses  without first considering and marshalling the  evidence against the accused excluding the  confession altogether from consideration. As held  in the decision cited above only if on such  consideration on the evidence available, other  than the confession a conviction can safely be  based then only the confession could be used to  support that belief or conclusion. \005."

In view of the error in comprehending the scope of the  decision in Kashmira Singh’s case, the decision in  Chimanlal’s case falls close to the category of decisions  rendered per incuriam. If followed, it would run counter to a  catena of coordinate Bench decisions and the larger Bench  decision in Pyare Lal Vs. State of Rajasthan supra. We may point out that in the State of Maharashtra  Vs. Damu [(2000) 6 SCC 269], this Court noticed the  apparent error in Chimanlal’s case and observed thus:  "We may make it clear that in Kashmira Singh,  this Court has rendered the ratio that confession  cannot be made the foundation of conviction in  the context of considering the utility of that  confession as against a co-accused in view of

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Section 30 of the Evidence Act. Hence the  observations in that decision cannot be misapplied  to cases in which confession is considered as  against its maker."

Having discussed the legal position with regard to the  evidentiary value of retracted confession, we shall now  scrutinize the facts of the present case. On such scrutiny, we  find no other corroborative factors that lend assurance to  the truth of the confession. Not a single circumstance or the  fact proved corroborates the facts revealed in the  confession. All the circumstances relied upon by the  prosecution excepting the extra judicial confession only point  to the involvement of the other accused\027Jitu Pegu, but not  the appellant. The extra-judicial confession has been  eschewed from consideration for the reasons given supra.  The confession of the appellant has not been substantiated  by any evidence on record which is in line with the  confessional statement. Therefore, the corroboration even in  the limited sense does not exist in the case of the appellant.  What is more, the cause of death as disclosed in the  confession does not fit into the opinion of the medical  expert. PW23, the Senior Medical Officer at Dhemaji Civil  Hospital, who did the postmortem examination of the dead  body of Robindra Taid on 2.7.1999, clearly stated that the  death was caused on account of the head injury. There was  no ligature mark over the body which indicates that there  was no strangulation. He noticed hematoma in the middle  line of scalp and a fracture in the mid part of the parietal  bone. He also found blood around the mid part where the  fracture was caused. There was also blood clot on the upper  surface of the brain. He did not find any abnormality in other  parts of the body. In the confessional statement, the  appellant is alleged to have stated that he killed Robindra by  strangulation, which is clearly inconsistent with medical  evidence. If the confession was voluntary and the accused  wanted to tell the truth out of repentance, he would have  frankly said that he inflicted the injuries on the head of the  victim. But, he did not give the true version of the mode of  causing death.  It only shows that the role of police in  making him adhere to the version of strangulation in tune  with what had been noted by the I.O. and presumably by  the Executive Magistrate cannot be ruled out. Alternatively,  it appears that the appellant faithfully repeated what the  other accused stated as to the manner in which he killed  Keshav. Thus, the confessional statement of the accused\027 appellant far from receiving corroboration of any sort from  other circumstances, contradicts the medical evidence  relating to cause of death which is an important aspect of  the confession. We are therefore of the view that it is not  safe to convict the appellant solely on the basis of the  alleged confession which has been retracted. Before parting with the case, we must observe that the  High Court fell into a serious error in not considering the  case of the appellant separately. The High Court applied the  evidence relating to the other accused to the appellant. This  mix up has led to miscarriage of justice. We therefore set aside the conviction of the appellant  under Sections 302 & 365 IPC and allow the appeal. The  appellant shall be released forthwith from the jail, unless  required in any other case.