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PETITIONER: SHRISHAIL NAGESHI PARE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT25/03/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR  866            1985 SCR  (3) 461  1985 SCC  (2) 341        1985 SCALE  (1)1040

ACT:      Criminal Procedure Code 1973, Section 164      Retracted confession  of accused-When can form basis of his conviction  -Whether can form basis of conviction of co- Accused.      Criminal Trial:      Evidence of  truthful eye witness-Whether sufficient to warrant a conviction.

HEADNOTE:      The petitioner  was convicted  by  the  Sessions  Judge under Section  302, IPC. and the conviction was confirmed by the High Court.      Dismissing the Special Leave Petition, ^      HELD: 1. The evidence of an eye witness, if accepted is sufficient to warrant conviction though in appropriate cases the Court  may as  a measure of caution seek some confirming circumstances  from   other  sources.  But  ordinarily,  the evidence of  a truthful  eye witness  is sufficient  without anything  more  to  warrant  a  conviction  and  cannot  for instance be  made  to  depend  for  its  acceptance  on  the truthfulness of  other items of evidence such as recovery of weapons etc. at the instance of the accused by the police.                                                     [463-B]]          2.A retracted confession by an accused may form the basis of  a conviction  of that  accused if it receives some general corroboration  from other  independent  sources.  It cannot however,  be the  basis for  convicting a  co-accused though it may be taken into consideration against co-accused also R  It is  entirely wrong to think that a confession can lead nowhere.                                                     [463D-E] 462             In the instant case, the High Court was wrong in treating the  evidence of  the eye  witness as ’one of three legs of  a tripod’  which must  collapse if any of the other Legs  collapses.   It-was  also  wrong  in  holding  that  a confession cannot  be the foundation of a conviction but can only constitute’a  fourth leg  to a  tripod’, and  that "the confession alone  and by itself cannot prove the guilt of an accused."

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                                                   [463C-D]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 372 of 1985.      From the  Judgment and  Order dated 18/19.9.1984 of the Bombay High Court in Criminal Appeal No. 423 of 1981      S.B.  Bhasme,   A.B  Bhasme  and  M.A,  Firoz  for  the Petitioner.      The Order of the Court was delivered by      CHINNAPPA REDDY,  J. This Special Leave Petition by the first accused  in Session  Case No.  134 of  1980 before the Sessions Judge,  Sholapur whose  conviction by  the Sessions Judge under  section 302  has been  confirmed  by  the  High Court,  has   to  be  dismissed  as  it  rests  entirely  on appreciation of  evidence. While  dismissing  the    Special Leave Petition  we are  however, constraint  to make  a  few remarks about some of the observations of the High Court. In paragraph 18  of the  judgment of the High Court it has been said "the  case of the prosecution stands on the pedestal of a tripod  having the  eye witness  account of  Shrimant  and Nirmala as  one leg; the discovery of axes, spear and a pair of trousers as the second leg and the animosity generated by high-handed behaviour of Malkari regarding diversion of rain water as the third leg. The confession made by accused No. 1 Nogeshi  which   was  subsequently   retracted   forms   the additional fourth  lee of  the tripod but it is well settled that the  confessional statement  can never  be an  evidence upon which  a to  found a conviction. It can at best furnish an additional  reenforcement  when  the  other  evidence  is clinching enough  to  pronounce  a  verdict  of  guilt.  The confessional statement  alone and  by itself  would lead  us nowhere; if  one of  the legs  of the  tripod on  which  the prosecution bases  its case  gives way,  the whole case like Humpty Dumpty  would come  tumbling down  and the additional fourth leg-that  is, the  confession, will not, like all the King’s horses and all the King’s men would put Humpty Dumpty together." 463      The metaphor  used by the judges is entirely misapplied and   misleading.  The  evidence  of  the  eye  witness,  if accepted, is  sufficient to  warrant  conviction  though  in appropriate cases the Court may as a measure of caution seek some  confirming   circumstances  from  other  sources.  But ordinarily, the  evidence  of  a  truthful  eye  witness  is sufficient without  anything more,  to warrant  a conviction and  cannot   for  instance,  be  made  to  depend  for  its acceptance on  the truthfulness  of other  items of evidence such as  recovery of  weapons etc.  at the  instance of  the accused by  the police.  The Judges  of the  High Court were wrong in  treating the  evidence of  eye witness  as ’one of three legs  of a  tripod which  must collapse  if any of the other legs  collapses. Again  the High  Court  is  wrong  in thinking that  a confession  cannot be  the foundation  of a conviction but  can only  constitute  ’a  fourth  leg  to  a tripod’. This statement has been repeated again in paragraph 30, where  the High Court has observed "the confession alone and by  itself cannot prove the guilt of an accused." We are not a  little surprised  that such  a statement  should have been made  by the  High Court.  We wish to make it clear and this is  only to  repeat what  is so well established that a retracted confession  by an  accused may form the basis of a conviction of  that accused  if  it  receives  some  general

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corroboration from  other  independent  sources.  It  cannot however, be  the basis  for convicting  co-accused though it may be  taken into consideration against co-accused also. It is entirely  wrong to  think  that  a  confession  can  lead nowhere. We  are sorry  to find  such careless statements in the judgment of a High Court.      Special leave petition is dismissed. N.V.K.                                    Petition dismissed 464