Case: Paramananda Pegu Vs. State Of Assam

broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundans case. 22. The decision of this Court in Chandrakant Chimanial 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.." 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 Singhs case that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence. 23. In Chimanlals 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.." 24. In view of the error in comprehending the scope of the decision in Kashmira Singhs case, the decision in Chimanlals 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. 25. We may point out that in the State of Maharashtra vs. Damu (2000) 6 SCC 269 ), this Court noticed the apparent error in Chimanlals 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 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". 26. 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-Jitu 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 - 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. 27. 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. 28.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The last seen evidence is the first and foremost circumstance that has been relied upon by the High Court. 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 hereinThe 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. - PW29 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 unsustainableAs 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 Taids 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 pointThe 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 uponHaving 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-Jitu 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 - 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 retracted27. 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.