Case: Moreshwar &amp; Another Vs. The State of Maharashtra

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.