Case: Moreshwar & Another Vs. The State of Maharashtra

Oral Judgment: (B.R. Gavai, J.)1. These two appeals filed by original accused nos. 1 and 3 take exception to the Judgment and order passed by the learned Additional Sessions Judge, Chandrapur, dt.7.1.2013 in Sessions Case No.106 of 2011 thereby convicting them for the offences punishable under Section 302 r/w. Section 120B of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs.5,000/- each and in default, to suffer rigorous imprisonment for three months.2. The prosecution story in brief, as could be gathered from the material placed on record, is thus :Waman Bhiwapure (PW-4), a Sarpanch of Gram Panchayat, Thutra, received an information on 21.4.2011 that the dead body of unknown person was lying on the road side. As such, he went to the spot, saw the dead body and informed about the same to Police Station, Gadchandur vide report at Exh.53. Accordingly, A.D. No.9/2011, u/s. 174 of the Code of Criminal Procedure came to be registered. P.S.I. Arvind s/o. Dewaji Gurukar (PW-13) inquired into the Marg. He recorded spot panchanama (Exh.40) and Inquest panchanama (Exh.42). From the spot, he also seized one big stone stained with blood, a small stone, simple earth and earth smeared blood (Exh.44). The dead body was sent to hospital for post mortem along with police questionnaire. Dr. Sanjay Ramesh Umate (PW-3) conducted autopsy on the dead body of deceased and opined in his P.M. Notes, that the cause of death was injury to the external genitals and bleeding thereafter with fracture thoracic ribs. The Investigating Officer also took blood sample and seized clothes of the deceased.3. On the next day i.e. on 22.4.2011, at around 11.30 a.m., father of the deceased lodged report below Exh.37 alleging therein that accused no.1 Sevaklal had come to his residence at 11.00 a.m. on 20.4.2011. He further stated in the said oral report that, around 4.00 p.m., accused Sevaklal had alone come to his house and without informing anything, went away taking deceased Shankar along with him. He has further stated that deceased Shankar did not come to the house. He received information on 21.4.2011 that his son was found dead on Gadchandur to Rajura road near Thutra Bus Stand. It is further alleged in the said oral report that there was a relationship between accused no.1 and original accused no.2 Suvarna wd/o. Shankar Kasti. The report further states that the first informant had a suspicion that accused no.1 has committed murder of his son. On the basis of the said oral report, the First Information Report came to be lodged below Exh.38. Investigation was set into motion. Accused no.1 was arrested on 16.5.2011. During his police custody, on his memorandum below Exh.103, his clothes, mobile phone sets and five sim cards came to be recovered. Hero Honda Motor cycle was also seized. Accused no.3 was also arrested on 17.5.2011. On memorandum u/s. 27 of the Indian Evidence Act, 1872, his mobile hand set and mobile phone of deceased, handkerchief, Sim Card and clothes came to be recovered from the house of his mother-in-law. It further appears that the confessional statements of accused nos. 2 and 3 were also recorded by the learned Judicial Magistrate, First Class, Rajura. Statements of various witnesses were also recorded.4. After conclusion of investigation, charge sheet came to be filed in the Court of Judicial Magistrate, First Class, Rajura. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the learned Sessions Judge at Chandrapur vide order of the learned Judicial Magistrate, First Class, Rajura dt.18.7.2011. The learned Sessions Judge framed charges against the present appellants as well as original accused no.2 Suvarna wd/o. Shankar Kasti for the offences punishable under Section 302 r/w. 34 of the Indian Penal Code, under Section 201 r/w.34 of the Indian Penal Code and under Section 120B of the Indian Penal Code. The charges were read over to the accused, to which they pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge acquitted original accused no.2; however, passed an order of conviction and sentence as aforesaid. Being aggrieved thereby, the present appeals are filed.5. Mr.R.M.Daga, learned Counsel for original accused no.1/appellant herein submits that the present case is based solely on the circumstantial evidence. He submits that unless prosecution proves each and every incriminating circumstance beyond reasonable doubt and further proves the chain of circumstances which are so interlinked to each other that they leads to no other conclusion than guilt of the accused, the order of conviction would not be sustainable. The learned Counsel submits that insofar as the circumstance regarding the accused last seen with the deceased is concerned, the only evidence is that of Namdeo s/o. Rama Kasti (PW-1) and Angad s/o. Bhaskar Bandgar (PW-11). It is further submitted by the learned Counsel that, according to this witness, accused no.1 was last seen in the company of the deceased at around 3.30 to 4 p.m. However, as against this, as per evidence of Billukumar s/o. Baby Pille (PW-9), the deceased was last seen in the company of accused no.3 at around 8.00 p.m. It is further submitted that the evidence in respect of the accused last seen in the company of deceased would not be of any assistance to the case of prosecution inasmuch as it is not accused no.1 who was lastly seen in the company of the deceased but it was accused no.3 who was lastly seen in the company of the deceased. The learned Counsel submits that the other circumstances regarding recovery of mobile handset and clothes would not be of much relevance. It is further submitted that the mobile which was seized from the accused was belonging to him and hence, naturally the mobile was found in the custody of the accused. Insofar as seizure of clothes is concerned, the report of Chemical Analyser shows that no traces of blood are found on the clothes.6. Mr.R.H.Rawlani, learned Counsel for original accused no.3/appellant herein submits that the only evidence against the said appellant are:a) The evidence of Billukumar Pille (PW-9),b) Confessional statement which is relied on by the learned trial Judge u/s.30 of the Indian Evidence Act and,c) recovery of mobile handset of the deceased from the said accused.The learned Counsel submits that insofar as evidence of Billukumar Pille (PW-9) is concerned, no identification parade is held and as such, identification in dock would not be sustainable. He further submits that insofar as recovery of mobile handset of deceased is concerned, prosecution has not led any evidence to establish that the mobile handset which was recovered from the appellant belongs to the deceased. Insofar as confessional statement is concerned, the learned Counsel submits that the same cannot be relied on for convicting the appellants.7. Mr.S.M.Ghodeswar, learned A.P.P. submits that prosecution has proved each and every incriminating circumstance. The learned A.P.P. submits that prosecution has proved beyond reasonable doubt that death of deceased was homicidal. He submits that it is also proved that original accused no.1 had illicit relationship with original accused no.2. Therefore, the learned A.P.P. submits that prosecution has proved motive for the crime. He further submits that though motive may not be relevant factor in case of direct evidence, it plays vital role in the case based on circumstantial evidence. Learned A.P.P. further submits that, the prosecution, on the basis of evidence of Namdeo Kasti (PW-1), Billukumar Pille (PW-9) and Angad Bangar (PW-11), has proved that the accused/appellants were last seen in the company of deceased. He submits that the time gap between the deceased last seen in the company of the accused and the dead body of deceased being found is so narrow that it leads to no other inference, than that it is only the present appellants who were responsible for causing death of the deceased. The learned Counsel further submits that prosecution has also proved the Call detail report showing that there was a constant conversation between all the three accused prior to and after death of deceased.8. By now, the law regarding conviction in a case resting on the circumstantial evidence is well established. Their Lordships of Honble Apex Court in the case of Sharad Birdhichand Sarda .vs. State of Maharashtra reported in (1984) 4 SCC 166 observed thus:153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions."(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.9. It could thus be seen that a duty is cast on the prosecution to prove each and every incriminating circumstance beyond reasonable doubt. Not only that, prosecution has to establish the chain of established circumstances which leads to no other conclusion than guilt of the accused. It is further necessary for the prosecution to prove beyond reasonable doubt that all other possibilities except guilt of the accused are ruled out. It is a well established position of law that howsoever strong suspicion is there, the same cannot take place of truth beyond reasonable doubt.10. In the light of this legal position, we will have to examine the present case. We have scrutinized the material on record with the assistance of the learned A.P.P. as well as the learned Counsel for the appellants.11. Though the learned trial Judge has not culled out the circumstances, which he has found to be proved beyond reasonable doubt, from the perusal of the Judgment, it would reveal that the learned Judge has found the following circumstances to be proved.a) From the evidence of Namdeo Rama Kasti (PW-1) father of deceased, Ku.Alka d/o. Shankar Kasti (PW-6) daughter of deceased and Vaishali d/o. Mahadeo Ghorpade (PW-7), that there was illicit relationship between original accused no.1 and accused no.2, wife of the deceased.b) On the basis of evidence of Namdeo Kasti (PW-1) and Angad Bangar (PW-11), that the deceased was last seen in the company of accused no.1 on 20.4.2011.c) On the basis of evidence of Billukumar Pille (PW-9), that accused no.3 was last seen in the company of deceased at around 8.30 p.m. on 20.4.2011.d) The confessional statement of accused no.3, seizure of mobile of deceased from accused no.3 and the Call detail report of conversion between all the three accused prior to and after death of deceased.e) One of the circumstances as against accused no.1 is regarding attempt on the part of accused no.1 to ask Nandlal s/o. Ghudanlal Rahangdale (PW-10) to give false information to the police.12. We will first examine the evidence regarding motive. In this regard, the prosecution and the learned trial Judge have relied on the evidence of aforesaid three witnesses i.e. Namdeo Rama Kasti (PW-1), Ku.Alka d/o. Shankar Kasti (PW-6), and Vaishali d/o. Mahadeo Ghorpade (PW-7). Insofar as Namdeo Kasti (PW-1) is concerned, though, in the oral report and in the F.I.R., he states that he had suspicion regarding illicit relationship between original accused no.1 and original accused no.2 Suvarna, in his substantive evidence, there is no whisper regarding the same. It is a settled position of law that F.I.R. is not a substantive piece of evidence. It can only be used to corroborate the substantive evidence. It could thus be seen from the evidence of Namdeo (PW-1) that there is no whisper regarding the same in his substantive evidence and as such, mention about the same in the F.I.R. would be of no consequence. Insofar as evidence of Alka Kasti (PW-6) is concerned, the only statement that can be of some assistance to the case of prosecution is that she states in her evidence that sometimes the accused no.1 Sevaklal was taking halt in the night at our house. He used to supply liquor to my father. At the time of incident my stepmother went to her parental home since one month prior to incident as there were quarrels with the father on the count of phone of the accused no.1 Sevaklal .13. However, the part of evidence that accused no.1 used to supply liquor to her father as well as her father quarelled with her stepmother due to frequent telephonic calls from accused no.1 Sevaklal and due to that reason, her stepmother went away is an improvement. Both these omissions are duly proved in the evidence of I.O. Arvind (PW-13). It is further to be noted that she admits in her evidence that there were cross terms between them and her stepmother. She further admits that, due to that reason, they left the house and started residing separately. She has further admitted that since they were separate, she knew no reason about quarrel between her father and stepmother. Insofar as evidence of Vaishali (PW-7) is concerned, there is not even a whisper in her deposition with regard to original accused no.1. We are unable to understand as to how the learned trial Judge has found the evidence of this witness to be relevant for the purpose of establishing illicit relationship between original accused no.1 and original accused no.2. We are of the considered view that prosecution has utterly failed to prove this circumstance.14. That leaves us with the circumstance regarding memorandum of original accused no.1, u/s.27 of the Indian Evidence Act. The prosecution has relied on the evidence of Nashir Khan s/o. Afzal Khan (PW-12) to prove the memorandum u/s.27 and recovery of motor cycle, clothes of accused and his mobile phones. By now, it is a settled position of law that, that part of a statement made u/s.27 of the Indian Evidence Act which leads to discovery in consequence of such statement from accused would be admissible in evidence. However, by now, it is also a settled position of law that such a discovery has to be made from a place which is solely within the knowledge of such person and which is not accessible to any one else. Perusal of memorandum and seizure panchanama would reveal that recovery is made from the house of appellant from bed room. The seizure panchanama shows that the accused had opened the cupboard and took out the sim cards, mobile handsets and clothes, which he had kept in a plastic bag in the cupboard, which were used by him while committing crime. Panchanama does not show that the cupboard was locked and the lock was opened by original accused no.1. In any case, it is difficult to believe that a person would keep the clothes used by him while committing crime for almost a period of one month and that too, in his house. In that view of the matter, we find that said recovery would not be of any assistance to the prosecution case. Moreover, the C.A. report does not show anything incriminating insofar as the said clothes are concerned.15. That leads us to memorandum of accused no.3 and recovery pursuant thereto. The memorandum of accused no.3 is recorded on 19.5.2011 i.e. almost after a period of one month from the date of commission of crime. It is allegedly stated by accused no.3 in the memorandum that he had concealed mobile handsets, sim cards and his clothes in house of his mother-in-law. The seizure panchanama would show that when the accused directed the police to the house of his mother-in-law, they found one woman in the house, who was identified by accused no.3 as his mother-in-law. The seizure panchanama further shows that accused went inside the house, opened an old godrej cupboard and took out incriminating material therefrom. It could thus be seen that the recovery is made from the place which was accessible to one and all. It was not exclusively within the knowledge of accused no.3. In any case, the Chemical Analyser did not find anything incriminating insofar as the clothes of accused no.3 are concerned.16. That leaves us to the most important circumstance regarding last seen. We will first consider the case of accused no.3 Moreshwar Hanskar. Prosecution in this respect has relied on the evidence of Billukumar Pille (PW-9), who is an auto rickshaw driver. He states that, on 20.4.2011, at around 6 p.m., when he was waiting for passengers near the Bus stand, one passenger came for village Thutra. He was told by the said person that there is a passenger who has consumed liquor and was unable to walk. He was told by that person that he would pay Rs.200/-. His friend Avinash was also with him. Therefore, said witness along with his friend Avinash went near Surya Beer Bar, Gadchandur. One person was found lying there after consuming heavy liquor. All the three of them took the said drunkard in the autorickshaw. The said witness then carried the said two passengers to Thutra Bus Stand. He told them that he would leave them in the village but they declined. It was about 8 to 8.30 p.m. He identified the person to be a person having shoulder-cut hair on his head and French cut beard. Billukumar Pille (PW-9) further states in his evidence that, on the next day, he came to know that the drunkard person had died. He further states that, after 23 days, he was called by police at the Police Station. There were two persons in the Police Station. The person who was having shoulder-cut hair on head and French cut beard was also present there. This witness had identified him in the Police Station. Thereafter, witness Billukumar identified accused no.3 in the dock. It could thus be seen that identification of accused no.3 by the said witness is firstly in the Police Station immediately after 2-3 days and thereafter in the dock. It is not in dispute that accused no.3 was not acquainted with Billukumar Pille (PW-9). No identification parade has been held. In that view of the matter, the fact regarding the said witness identifying accused no.3 at the instance of Police cannot be ruled out. In that view of the matter, we find that it cannot be said that prosecution has proved beyond reasonable doubt that original accused no.3 was last seen with the deceased.17. Now coming to the case of accused no.1, prosecution relies on the evidence of Namdeo Kasti (PW-1) and Angad Bangar (PW-11). Namdeo Kasti (PW-1) is father of the deceased. The incident has occurred somewhere in the night of 20th April, 2011. The dead body was recovered in the morning of 21st. The information regarding death of deceased was received by this witness in the morning of 21st itself. Namdeo Kasti (PW-1) had gone to take body of deceased on 21st itself. Admittedly, the police personnel were present at that time. However, witness Namdeo does not disclose about the same to police on the same day. He waits for almost a period of 24 hours and lodges the First Information Report on the next day at about 11.30 p.m. Nodoubt that delay in lodging the F.I.R. is not always fatal to the prosecution case. In the present case, police personnel were very much present on 21st itself. Witness Namdeo could have very well informed the police about original accused no.1 taking away the deceased on 20th at around 3 to 4 p.m. In the normal circumstances, Namdeo Kasti (PW-1) would have disclosed the said fact to police immediately. It is further to be noted that a specific suggestion was given to the said witness Namdeo that one Mr.Borkar who belongs to a political party had written the F.I.R. Though he has denied the said suggestion, he has admitted that said Borkar has also signed the report. Witness Namdeo has further admitted that he does not know reading and writing. He has further admitted that the contents were not explained to him. Insofar as suggestion given to him regarding dispute between said Borkar and accused no.1, he pleads ignorance. In view of above, we are of the view that it will not be safe to rely on the evidence of this witness to come to the conclusion that original accused no.1 was last seen in the company of deceased.18. Insofar as evidence of Angad Bangar (PW-11) is concerned, the said witness appears to be a chance witness. The statement of this witness is also recorded on 23rd i.e. three days after the date of incident. If he had really seen the original accused no.1 in the company of deceased, he could have very well informed the police about the same on 21st. In that view of the matter, we find that prosecution has failed to prove the circumstance of original accused no.1 last seen in the company of deceased beyond reasonable doubt.19. Insofar as the circumstance regarding original accused no.1 asking Nandlal Rahangdale (PW-10) to give false information to the police is concerned, prosecution relies on the evidence of said witness Nandlal, who is distantly related to accused no.1. In his evidence, he states that, on 20.4.2011, accused no.1 had telephoned him that he will be coming to his place for dinner. However, he did not come and came there in the next day morning. He states that at around 7.00 a.m. there was a ring on his mobile phone from his wife. He further states that accused Sevaklal told him that he was told by his wife that yesterday the person whom he had left at Gadchandur was murdered and that his father had been to her house. Witness Nandlal further states that though he was asked to speak to police, he refused to do so. He further states that accused no.1 had requested him to tell police that accused Sevaklal was in his house beyond night. However, it is to be noted that his statement is recorded on 2.5.2011. He further admitted that, for the first time, he had told police on 2.5.2011 regarding telephonic conversation between him and Sevaklal. Apart from that, merely a false explanation or failure to give explanation cannot be a circumstance to complete the chain of circumstances to prove the guilt beyond reasonable doubt. It will be appropriate to refer to para 151 of the Judgment of Sharad Birdichand Sarda (cited supra), which reads thus :151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.20. It could thus be seen that, as has been held by the Honble Apex Court, only after prosecution proves the case beyond reasonable doubt on the basis of proven incriminating circumstances, false explanation or failure to give explanation can be used only to give credence to the finding of guilt as has been recorded. In that view of the matter, as such we find that the said evidence of Nandlal Rahangdale (PW-10) will also be of no assistance to the prosecution case.21. That leads us to the last circumstance with regard to confession of original accused nos. 2 and 3, which has been heavily relied on by the learned trial Judge while arriving at the finding of guilt.22. The confessional statement of original accused no.2 was recorded on 31st May, 2011 at 11.00 a.m. In the said statement, she admits regarding her relationship with accused Sevaklal. She further states that accused Sevaklal used to give threats to assault her and her husband. She further states that, on account of drunkardness of her husband, she had gone to her fathers house. She further states that after she came to her matrimonial house, she came to know from her neighbourers that her husband died. She further states that accused Sevaklal and three others had killed him. Perusal of her statement would show that her version is based on hearsay knowledge and suspicion. As such, the said statement would be of no use to the prosecution case.23. Insofar as original accused no.3 is concerned, his statement was also recorded on the same day. The learned trial Judge has reproduced the statement of this accused in extenso. Perusal of the said statement would show that accused Moreshwar has stated about accused Sevaklal giving him Rs.300/- for providing drinks to the deceased. He further states regarding taking the deceased to the side of the road. He further states regarding accused Sevaklal coming there, assaulting the deceased with stone and thereafter asking him to throw away the stone. He further states that accused Sevaklal had asked him to keep mobile of deceased with him. He further states that accused Sevaklal had given him new sim card prior to 3-4 days of the incident and asked him to use the same. He has further states that he had thrown the sim card of deceased in Wardha river. He further states that accused no.1 had given him an amount of Rs.11,000/- and asked him not to tell anything about the incident to any anyone. Nodoubt that there is certification after confession by learned Judicial Magistrate, First Class regarding confession being voluntary in nature. The learned trial Judge has heavily relied on provisions of Section 30 of the Indian Evidence Act for using the said confessions for the purpose of conviction.24. The Apex Court in the case of Kashmira Singh .vs. The State of M.P. reported in AIR 1952 SC 159 , which case incidently had arisen out of the Judgment of Nagpur High Court and the Judgment was delivered by Honble Shri Justice Bose, who had also adorned the Seat as a Judge of Nagpur High Court, had an occasion to consider the provisions of Section 30 r/w. Section 3 of the Indian Evidence Act. The Apex Court in the said case held that confession of accused person is not an evidence in the ordinary sense of the term as defined in Section 3. It has been held that confession is a very weak type of jevidence. The Apex Court observed in paragraph nos. 10 and 11 thus:10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.11. Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar v. The State of Rajasthan, Cri. App. No.2 of 1951 : (A.I.R. 1952 S.C. 54). It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu vs. The King, 76 Ind. App 147 at p. 157 :The tendency to include the innocent with the guilty is peculiarly prevalent in India, as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger... The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused. 25. It could thus be seen that the Apex Court has held that the proper way to approach a case is first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. It has further been held that if conviction could safely be based on it, if it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. However, the Apex Court has further held that but cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. It could thus be seen that the Apex Court has held that first the other evidence has to be marshalled and if upon accepting the evidence as proved by prosecution independent of confession the Judge comes to the conclusion that guilt of the accused is proved then there should be no difficulty in resting the order of conviction. However, in a borderline case, though the evidence brought on record may be found sufficient to pass an order of conviction; however, the Judge is not prepared to do so, then, in such a case, the confession can be used to corroborate the other evidence.26. The law as laid down in the case of Kashmira Singh (supra) further came for consideration before the Constitution Bench of the Apex Court in the case of Haricharan Kurmi vs. State of Bihar reported in AIR 1964 SC 1184 before the Constitution Bench of the Apex Court. Their Lordships of the Apex Court considering a confession which was somewhat similar to one given by original accused no.3 herein observed in paragraph 16 thus :It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals. (emphasis supplied).27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523 has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession of co-accused. It must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.

Decision:
1[ds]27. It could thus be seen that Their Lordships of the Apex Court have observed that if the confession made by a person is found to be voluntary and true insofar as the part played by the person making confession is concerned, it was not unlikely that the confessional statement in regard to the part played by the appellants may also be true. The Apex Court further observed that in that sense, the reading of the said confession may raise a serious suspicion against the accused. However, Their Lordships observed that it is precisely in such cases that the true legal approach must be adopted and suspicion, however grave, must not be allowed to take the place of proof. Their Lordships observed that in cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of athe presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.28. The Apex Court in a recent Judgment in the case of Pancho .vs. State of Haryana reported in AIR 2012 SC 523   has reiterated the same position. It has been held by Their Lordships that he Court cannot start with confession ofIt must begin with other evidence adduced by prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then only it is permissible to turn to confession.29. Applying the principle as laid down by the Apex Court, we have scrutinized the other evidence as is led by the prosecution against the present appellants i.e. original accused nos. 1 and 2. We have come to the conclusion that prosecution has failed to prove a single incriminating circumstance. In any case, prosecution has utterly failed to prove the chain of circumstances which interlinked to each other leads to no other conclusion than the guilt of the accused. In that view of the matter, the confession of original accused no.3, in our view, could not have been the sole basis for conviction of original accused nos. 1 and 3. As already held by the Apex Court, however grave the suspicion be, it cannot be permitted to take place of proof beyond reasonable doubt. In such a case, accused would be entitled to the benefit of doubt.