Extra Judicial confession of Accused Absolving Himself & Incriminating Co-Accused Not Reliable

The son of the de-facto complainant found missing from the

evening of 31.10.2012, turned up dead on the next day in a field,

head down with the legs sticking up from a ditch. His three

companions of the previous day found drinking and roaming

around were rounded up and arrayed as accused. The

prosecution went to trial with the circumstances of the last seen

together theory, extra-judicial confession, recovery of the

objects used as weapons & a motorbike, seizures from the place

of occurrence, oral testimonies and the serological report. The

trial court convicted the accused and sentenced them, which was

confirmed by the High Court. Two out of the three accused are

before us in appeal i.e. the first and second accused, the third

having not filed an appeal.

2. We have heard Ms. Ashima Mandla, learned Counsel

appearing for the appellant and Ms. Shraddha Chirania, learned

Counsel appearing for the respondent who also filed written

notes of submissions.

3. Before the trial court, sixteen witnesses were examined and

40 exhibits were marked, which included documents. The trial

court found from the last seen together theory, extra-judicial

confession; both spoken of by more than one witness, testimony

of PW-4 who spoke of A3 having come to her house on the very

same night, the recovery of the objects used as weapons, the

seizures carried out and the serology report, that a complete

chain of circumstances was established to nail the accused with

the crime of premeditated murder. The multiple depositions

regarding the last seen together theory and the extra-judicial

confessions corroborated each other. So did the extra-judicial

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confession of the murder having been committed in a field,

corroborated by the recovery of the body from the field and the

detection of alcohol in the stomach, corroborated the testimony

of the deceased having been found drinking with the accused.

The High Court too listed out the above circumstances to convict

the accused.

4. We have to examine each of the circumstances as pointed

out by the trial court and affirmed by the High Court. In the

present appeal, PW1 is the de-facto complainant, the father of the

deceased. The FIS was taken down as recited by PW1, by PW2.

It was the testimony of PW1 that on the evening of 30.10.2012 at

around 4 PM, the three accused came on a motorbike and his son

accompanied them on another motorbike, belonging to PW1.

When his son did not reach home by 8 o’Clock, he searched for

him along with PW3 and PW8. He also spoke of PW4, the aunt of

A3 having spoken of A3 having approached her on the same

night. On the next day morning, he heard about the death of his

son and the detention of A1 and A2 by villagers. The last seen

together theory commences from PW1’s testimony, of his son

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having gone with the three accused at about 4 PM and is taken

forward, by the prosecution, through PW3, PW11 and PW14.

5. PW3 spoke of having seen the accused together with the

deceased roaming at around 10 AM and at 5 PM, in his presence,

PW1 having enquired about the deceased with his elder son. He

spoke of having searched for the son of PW1 at the house of A1

and A3. A1 was not in his house and A3 is said to have gone with

a truck. PW3 also spoke of A3 having come back at night with his

father to enquire about the whereabouts of the deceased with

PW1. The said statement is in contrast with the testimony of PW14

that A3 along with his father and another person came to PW1 on

the same night and threatened him; not stated by PW1 itself.

PW14 also spoke of having seen the accused and the deceased

roaming around at 5 PM. PW3’s testimony that he had seen the

deceased with the accused at 10 AM is of no use since PW1

admits that his son was at home after that and he accompanied

the accused only at 4 PM, after which PW14 had seen him at 5

PM, the dead body having been recovered on the next day

morning.

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6. One other crucial witness projected by the prosecution is

PW11 who testified that she saw the four men drinking in the

field behind the BDO office, on the evening of 30.10.2012 when

she was returning from work. The trial court and the High Court

laid emphasis on this testimony especially since the post mortem

report indicated alcohol in the stomach of the deceased, which

was held to have corroborated the testimony of PW11. However,

a close reading of the cross-examination of PW11 raises grave

suspicion about her testimony. She admitted in her crossexamination

that the BDO office was open till evening and that

the locality was thickly populated; reducing the chances of a

drinking spree in public. The justification for her presence in the

locality was that she was returning from work, but, she was

unable to point out or specify the house in which she worked, the

name of her employer or even the locality in which the house

was situated. We cannot but opine that PW11’s testimony does

not inspire enough confidence to make it an incriminating

circumstance to find the accused guilty of the offence alleged on

the strength of the accused and the deceased having been seen

together in the evening of 30.10.2012, that too drinking, in the

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field behind the BDO office. One other witness, PW13, put forth

to speak on the four persons having come to the hotel in which

he was employed at 6 pm, turned hostile.

7. Be that as it may, we have the evidence of PW1 and PW14,

the first of whom spoke of the accused having taken the

deceased from his house at 4 PM and PW14 having testified that

the four persons together were seen roaming at around 5 PM.

What assumes significance in placing reliance on the last seen

together theory is the gap between the time they were seen

together and the death having occurred. The proximity of the

death having occurred within a short time after the accused and

the deceased were seen together is most relevant, for the said

fact to be taken as an incriminating circumstance against the

accused. When the time gap is large then there could be

intervening circumstances, which snaps the link and prevents an

adverse inference against the accused merely for the reason that

the accused does not put forth an explanation as to when he

parted company with the deceased (State of Goa v. Sanjay

Thakran and Another1).

1 (2007) 3 SCC 755

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8. Immediately, we have to examine the postmortem report,

which notices the time of autopsy as 31.10.2012 at 2.10 PM, the

inquest having been at 10.15 AM, which report was proved in

trial by the Doctor examined as PW10. The postmortem report

indicates the loss of left eye with massive lacerations around

both the left and right eyes, sharp cut injuries and massive

lacerations on the face and even on the occipital bone on the

posterior aspect of the skull as also burning of the right side of

the face along with the right shoulder. No doubt the death was

delivered in a brutal manner, and the Doctor speaks of death

having been caused due to the shock by reason of the wounds

sustained and the resultant hemorrhage. The Doctor does not

speak of any single injury having led to the death.

9. What is pertinent in considering the circumstance of last

seen together is that the postmortem report indicates the time of

death as ‘24 hours not passed during examination after death of

deceased’. The time provided is very elastic and since PW14

stated that he saw the deceased along with the accused at 5 PM

on the previous day, death could have happened at any time in

the intervening night or in the morning, before the body was

recovered at around 10 AM on 31.10.2012. The time frame being

quite large to term death as proximate, there can be no

conviction based on the last seen together theory in the present

case. We have to hence, necessarily look at the other

circumstances, which together, if found incriminating enough,

the last seen together theory also would offer a link, though a

weak one, in the chain of circumstances.

10. The next circumstance projected by the prosecution is the

extra-judicial confession as spoken of by PW3, PW8, PW12 and

PW14. As per their testimony, when PW1’s son did not return

even on the next day, there was a massive search carried out,

and the villagers had detained A1 and A2. It is the testimony of

PW8 that he assured A1 that the mob would not assault him upon

which A1 confided to him that the three accused together

murdered PW1’s son. The testimony was that A1 told PW8 that,

at first A3 hit the deceased and thereafter he insisted that A1 and

A2 assault him and thus together they killed the deceased. It is

pertinent that in cross-examination PW8 specifically stated that

while A1 made the confession PW3 was present with him. PW3

on the other hand speaks not of a confession but an exculpatory

statement made by A1 that it was A2 and A3 who killed the

deceased. PW12 and PW14, two other witnesses who spoke of

the extra-judicial confession also spoke in tandem with what PW3

stated. The exculpatory statement made absolving himself and

accusing the co-accused, by its very nature is unreliable. It

cannot be put against the other accused, for no cross

examination being provided to them, of the one who made that

statement. It cannot also incriminate the person who made the

statement since there is no element of confession in the recital as

spoken of by three witnesses, as against one.

11. It is also of relevant import that PW8 specifically spoke of a

mob having detained A1 and A2 and PW8 having taken A1 aside

to speak to him, when he made the confession in the presence of

PW3; thus again raising a suspicion of whether PW12 and PW14

were privy to the statement made by A1. The extra-judicial

confession by its very nature being a weak piece of evidence has

not at all been proved in the present case. In any event, the

statement is made when the two accused were detained by a

mob, on the accusation of murder. Obviously, there is

considerable pressure put on the detained persons, who could

have spoken, on undue duress or under threat of violence. In

fact, the records indicate that after arrest, when A1&2 were taken

for medical examination, they had injuries on their body, which

again cuts at the root of credibility of the statement made; which

anyway has doubtful standing as a confession.

12. Now we come to the recoveries made allegedly with the

aid of the accused. The dead body was found in a field, an open

space with free access to anybody. The stone and glass piece are

said to have been recovered from the place of occurrence itself,

albeit with the aid of the accused. We have serious doubts about

the recoveries having the status of a recovery under Section 27 of

the Indian Evidence Act, but for the time being we would assume

it to be so. A stone, weighing 1-1.5 kg and a glass piece were

said to have been recovered, on the showing of the accused,

specifically A1 and A2. The seizure list as seen from the records

does not indicate the specific place from which it was recovered

other than stating that it is ‘from the PO at the paddy land of

Jogesh Roy’. The learned State Counsel would argue that though

the paddy field had free access, it was thick with stalks and there

could definitely be a concealment; the growth not borne out from

the evidence. We do not for a moment doubt that there could be

concealment even in a public place or in a field with thick

vegetation, but there is no statement recorded from the accused

as to such a concealment having been effected and then the

police having been led to the location and the material object

recovered from the place of concealment. Recital in the seizure

list is only that ‘on being shown and certified by accused 1 and 2’.

Concealment and its knowledge, revealed from the statement of

the accused, is the crucial ingredient of Section 27 which can

lead to that being used in a criminal trial, any other confession to

a police officer being excluded as self-incriminating.

13. Further, the said recoveries are/ made on 02.11.2012 and

the same was witnessed by PW5, the Pradhan who had come to

the place of occurrence at the time of the recovery of body, on

31.10.2012 and at the time of recovery, on 02.11.2012. In fact, the

testimony of PW5 is that the signature on the inquest report and

the seizure report are his and it relates to one broken spectacles,

one stone, one gangee and four pairs of sandals and one single

sandal. It is not clear from the testimony of PW5 as to which were

seized by the police on 31.10.2012 and what was recovered on

02.11.2012. The recovery thus has no clarity and more

importantly the accused pointing out the concealed objects or

even their presence at the time was not deposed to by PW5.

14. The recovery on 02.11.2012, as evidenced from the seizure

report, was with respect to four items; the stone, a broken glass

and two spectacles, one of which was broken, not testified to by

PW5. The other objects were seized at the time of inquest from

the place of occurrence from where the body was recovered.

Yet again as we already observed there is no statement taken of

the accused of a concealment and the recoveries made do not

qualify to be one under Section 27. The stains on the stone found

at the place of occurrence and the serology report of it being

human blood, hence, is of no consequence.

15. We also have to observe that the seizure is said to have

been made in the presence of both the accused without

indicating as to who out of the two revealed the concealment. As

a matter of fact, PW16, the Investigating Officer, testifies that

both the accused A1 and A2 informed him that if they are taken to

the place of occurrence they would recover the stone and

broken glass with which the deceased was murdered and also

the motorcycle of Samir; the last of which we will deal with a little

later. Here we have to emphasize that PW5, the witness to the

recovery, categorically stated that neither the stone nor the glass

piece was produced in Court and hence not confronted to the

witness. More pertinently the alleged weapons of assault were

not shown to the Doctor to elicit his opinion as to whether the

said objects could have caused the injuries found on the dead

body. The recoveries are of no avail and do not form a clinching

incriminating circumstance against the accused.

16. Yet another recovery is that of the motorcycle of the

deceased. In fact, PW12 speaks of information received about

the motorcycle having been kept in a house by A1 and A3 and

recovered from there, prior to the arrest of the accused and in

the course of the ongoing search, in the morning of 31.10.2012.

PW9 is the house owner who spoke of three persons having

come to his house to park the vehicle on 30.10.2012, however, he

failed to identify the accused. The discrepancy noticed insofar

as the recovery of the alleged weapons of assault, equally

applies in the case of the seizure of the motorcycle also.

Pertinent also is the fact that the motorcycle though handed over

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to PW1 on challan the same was not produced before Court nor

was its registration details proffered to indicate that it belongs to

the deceased or PW1, as is the version of PW1. PW1 was also not

asked about the recovery of the motorcycle and handing over by

the police.

17. One other incriminating circumstance was projected

through PW4, the aunt of A3. PW4 was put in the box to speak of

A3 having come to her on the night of 30.10.2012 to keep his bike

in her house, having run out of petrol. There was nothing elicited

from PW4 in her chief examination but for marking a statement

recorded by the Magistrate. In cross examination she

categorically stated that after the death of his son, PW1 had been

frequently visiting her and threatening her with dire

consequences if she does not depose falsely in the instant case.

It was in re-examination that she was asked by the Prosecution

about the statements made to the police, clearly impermissible.

Even when she was asked the said questions, first she denied A3

having come to her house at night and then she admitted it.

There can be no credence placed on such a witness or an

incriminating circumstance found from her testimony. One other

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aspect is that there is no motive projected, which we are quite

conscious is not imperative when the chain of circumstances is so

complete as to establish only a hypothesis of guilt, without

leaving any room for a hypothesis of innocence. In the present

case, the absence of motive, especially when the murder was

brutal, is yet another aspect raising a reasonable doubt.

18. In the totality of the circumstances, each having been

examined by us, none of those projected having qualified as

incriminating, linking the accused to the murder, we cannot but

reverse the order of conviction handed down by the Trial Court

and affirmed by the High Court. The appeals stand allowed and

the appellants herein shall stand released forthwith if not already

released as per our orders on the last day of hearing, unless they

are required in any other case and if released, their bail bonds

shall stand cancelled.

19. We place on record our appreciation for the meticulous

preparation and adroit presentation of both the learned Counsel.

20. Before we leave the matter, we see that the appeals have

been filed only by A1 and A2. A3 too has been languishing in jail

along with A1 and A2 and for reasons best known has not chosen

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to file an appeal. In the circumstance of having acquitted the two

accused, it is only proper that A3 also be provided assistance to

file an appeal. We direct the Member Secretary, National Legal

Services Authority to get in touch with the Member Secretary of

the West Bengal State Legal Services Authority, who shall

through the Secretary of the District/Taluk Legal Services

Authority, having jurisdiction over the prison in which A3 is

imprisoned, provide sufficient assistance to A3 and ensure that

an appeal is filed before this Court from the impugned judgment.

The same shall be done within a period of two months and the

compliance be reported to us, for which purpose alone the

matter is posted on 20th of July, 2026.

21. Pending application(s), if any, shall stand disposed of.

……….……………………. J.

(SANJAY KUMAR)

………….…………………. J.

(K. VINOD CHANDRAN)

NEW DELHI;

MAY 22, 2026.