Holding

The prosecution failed to establish a conclusive chain of circumstantial evidence and the extra‑judicial confession was inadmissible, so the conviction under s.302 and s.201 IPC is set aside.

Summary

The appellant was convicted under sections 302, 201 and 34 of the IPC for the murder and concealment of Joginder Singh, based primarily on three pieces of circumstantial evidence: identification by two liquor‑shop owners, an extra‑judicial confession to a village pradhan, and the recovery of a saw blade under a Section 27 statement. The Supreme Court examined whether these circumstances formed an unbroken chain that proved the appellant's guilt beyond reasonable doubt. It held that the identification testimony was unreliable as no proper parade was conducted, the confession was obtained while the appellant was in police custody and therefore inadmissible under Sections 25 and 26 of the Evidence Act, and the recovered saw blade did not conclusively link the appellant to the crime. Consequently, the prosecution failed to exclude any reasonable hypothesis of innocence, invoking the doctrine of benefit of doubt. The Court set aside the conviction and sentence, cancelled the bail bond and restored the appellant's liberty.

Issues considered

Whether the prosecution proved the appellant's guilt beyond reasonable doubt solely on circumstantial evidence.
Whether the extra‑judicial confession to a police officer is admissible under Sections 25 and 26 of the Evidence Act.
Whether the identification by PW‑7 and PW‑8 is reliable without a proper identification parade.
Whether the discovery of the saw blade under Section 27 of the Evidence Act establishes a link between the appellant and the murder.
Whether the doctrine of benefit of doubt applies when any circumstance is consistent with innocence.

Legislation cited

Code of Criminal Procedure, 1973s. 164
Constitution of Indias. 14, s. 19, s. 21, s. 39A
Indian Evidence Act, 1872s. 24, s. 25, s. 26, s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 34
Universal Declaration of Human Rightss. 10, s. 3

Subjects

circumstantial evidencebenefit of doubtextra‑judicial confessionidentification paradesection 25 Evidence Actsection 26 Evidence Actmurdercapital offenceright to legal aidconstitutional rightsfabrication of evidence

Judgment

KISHORE CHAl"D
A
v.
STATE OF HIMACHAL PRADESH

AUGUST 29. 1990

[P.B. SAWANT AND K. RAMASWAMY. JJ.] B

Indian Penal Code, I860: ss. 302 & 20 I-Conviction based on
circumstantial evidence-Facts consistent with innocence of accused-
Whether entitled to benefit of doubt-Tendency of free fabrication of
• record to implicate innocents in capital offence deprecated.

Constitution of India: Articles I4, 19, 2 I & 39A/Universal Decla-
c
ration of Human Rights: Articles 3 & 10--Indigent accused-Right to
liberty and life, equal justice and free legal aid-Need to assign
experienced amicus curiae to ensure effective and meaningful defence
emphasised.
D
The appellant was convicted nnder ss, 302 and 201 read withs. 34
IPC. The prosecution case was that he and the deceased were last seen
together in village J on November 10, 1974 by PW. 7, owner of a
dhaba-cum-liquor shop, and PW. 8, and all of them had consumed
liquor. The deceased had by then become tipsy. Thereafter the appel-
lant and the deceased had boarded a truck driven by A-2 and A-3, the E
cleaner. While they were going in the truck there ensued a quarrel
between them over some money matters and the appellant attacked the
deceased with an iron screw driver, and when the latter was half dead
all the accused severed his head with an iron saw and burried the trunk
under stones. The head was hidden at a different place. Three days
later, PW-6, chowkidar of a neighbouring village noticed the dead body F
and reported the matter to PW-IO, the village pradhan, who accom-
panied him to the spot. PW-6 lodged the FIR the next morning. On
receiving information that the deceased and the appellant were seen
consuming liquor on November 10 the Sub-Inspector, PW-27, and PW-
10 went to appellant's village and took him for identification to village J,
where PWs 7 and 8 identified him as one seen in the company of the G
deceased and having consumed liquor. The appellant was thereafter
taken to PW-IO's village and PW-27 proceeded for further investiga-
tion. The appellant then made an extra-judicial confession to PW-IO of
having committed the crime with the help of A-2 and A-3. PW-JO pas-
........ sed on that information to PW-27 the next day following which the
accused were arrested. Thereafter A-2 made a statement under s. 27 of H

105
106 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

the Evidence Act leading to the discovery of the severed head. The
A weapon of offence was also recovered. The High Court confirmed the
conviction and sentence of the appellant but acquitted the other two of
the charge under s. 302 !PC.

Allowing the appeal hy special leave, the Court,
B
HELD: I. The prosecution has failed to bring home the guilt
to the appellant beyond all reasonable doubt and to prove that he
alone had committed the crime. He is, therefore, entitled to the benefit
of doubt. [116DI .,..,.

2.1 When there is no direct witness to the commission of murder
C .and the case rests entirely on circumstantial evidence, all the circums-
tances from which the conclusion of the guilt is to be drawn sbould be
fully and cogently established. The proved circumstances should be of a
conclusive nature and definite tendency unerringly pointing towards
the guilt of the accused. Imaginary possibilities have no role to play.
o What is to be considered are ordinary human probabilities. It is not
necessary that each circumstance by itself be conclusive but cumula- . c...
tively mnst form unbroken chain of events leading to the proof of the
guilt of the accused. If any of the said circumstances are consistent with
the innocence of the accused or the chain of the continuity of the
circumstances is broken, the accused is entitled to the benefit of the
E doubt. [112D-H]

2.2 In assessing the evidence to find these principles it is neces-
sary to distinguish between facts which may be called primary or basic
facts on one hand and inference of facts to be drawn from them, on the
other. In regard to the proof of basic or primary facts, the court has to .,f
•
F judge the evidence in the ordinary way and in appreciation of the evi-
dence in proof of those basic facts or primary facts, there is no scope for
the application of the doctrine of benefit of doubt. The court has to
consider the evidence and decide whether the evidence proves a particu-
lar fact or not. Whether that fact leads to the inference of the guilt of the \
accused or not is another aspect and in dealing with this aspect of the
G problem, the doctrine of benefit would apply and an inference of guilt
can be drawn only if the proved facts are inconsistent with the inno-
cence of the accused and are consistent only with his guilt. [113A-C]

3. I In the instant case, from the evidence it is clear that there was --.-.
no prior intimacy of the appellant and the deceased. They happened to
H meet per chance. PW-7, the liquor shop owner, and PW-8, who had
K!SHORE CHAND v. STATE OF H.P 107

liquor with the appellant and the deceased were also absolute strangers A
to the deceased and the appellant. Admittedly there was no identilica-,
lion parade conducted by the prosecution to identify the appellant by
pwc7 or PW-8. The appellant was stated to have pointed out to PW-7 as
the one that sold the liquor and PW-8 consumed it with him and the
deceased. Therefore, it is not reasonably possible to accept the testi-
mony of the PW-7 and PW-8 when they professed that they had seen the B
appellant and the deceased together consuming the liquor. It is highly
artificial and appear on its face a make believe story. [113F-H]

3.2.1 An unambiguous extra-judicial confession possesses high
probative value force as it emanates from the person who committed the
crime and is admissible in evidence provided it is free from suspicion
and suggestion of its falsity. But in the process of the proof of the alleged c
confession the court has to be satisfied that it is a voluntary one and
does not appear to be the result of inducement, threat or promise
envisaged under s. 24 of the Evidence Act or was brought about in
suspicious circumstances to circumvent ss, 25 and 26 of the Evidence
Act. For this purpose the court must scrutinise all the relevant facts D

• such as the person to whom the confession is made, the time and place of
making it, the circumstances in which it was made and finally the actual
words used by the accused. [114A-D]

3.2.2 Section 25 of the Evidence Act provides that no confession
made to a police officer shall be proved as against a person accused of any E
offence. Section 26 provides that no confession ma<le by any person
while he is under custody of the police officer, unless It be made in the
immediate presence of a magistrate, shall be proved as against such
person. [114G]

3.2.3 In the instant case, the appellant did not make any confes- F
sion in the presence of the magistrate. From the narrative of the pro-
secution story it is clear that PW IO and the appellant did not belong to
the same village and that PW-27 and PW-IO came together and ap-
prehended the appellant from his village and took him to village J for
identification. After he was identified by PW-7 and PW-8 it was stated
that he was brought back to the village of PW-I 0 and was kept in his G
company and PW-27 left for further investigation. It is incredible to
believe that the police officer, PW-27 after having got an accused
identified would have left without taking him into custody. He seems to
have created an artificial scenario of his leaving for further investiga-
tion and keeping the appellant in the custody of PW-IO to make an
extra-judicial confession, with a view to avoid the rigour of ss. 25 and H
108 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.
A 26. Nothing prevented him from taking the appellant to a Judicial
Magistrate and having his confession recorded as provided under s. 164
of the Crl. P.C. which possesses great probative value and affords an
unerring assurance to the court. It is too incredulous to believe that for
mere asking to tell the truth the appellant made voluntary confession to
B PW-10 and that too sitting in a hotel. The other person in whose pre-
sence it was stated to have been made was not examined to provide any
corroboration to the testimony of PW-IO. It would he legitimate, there-
fore, to conclude that the appellant was taken into police custody and the
extra-judicial confession was obtained there through PW-10 who
accommodated the prosecution. [USA-El

C 3.2.4 It is well settled law that ss. 2S and 26 of the Evidence Act
shall be construed strictly. Therefore, by operation of s. 26 the confes-
sion made hy the appellant to PW-IO while he was in the custody of the
police officer shall not be proved against him. [USE]

D 3.3 The statement said to have been made by the appellant under
s 27 of the Evidence Act leading to discovery of the consequential infor-
mation, namely, saw blade, is not of a conclusive nature connecting the
appellant with the crime. The recoveries were made long after the
arrest of the appellant. The blood stains on all the articles had disin-
i
tegrated. So it was not possible to find whether it was human blood or
not. Moreover, from the prosecution evidence it is clear that the
E
deceased hims-elf was an accused in an earlier murder case and it is
obvious that he had enemies at his back. Absolutely no motive to com-
mit the crime was attributed to the appellant. [USG-HJ

4. The conviction and sentence of the appellant for the offences
under ss. 302 and 201 !PC are set aside. The bail bond shall stand
F
cancelled. He shall remain at liberty unless he is required in any other
case. [1160]

S. Indulging in free fabrication of evidence .against an innocent
and implicating him in the capital offence punishable under s. 302 !PC,
as in the instant case, is a deplorable conduct on the part of an
G
investigating officer. The liberty of a citizen is a precious one guaran-
teed by constitutional provisions and its deprivation shall be only in
accordance with law. Before accusing the appellant of the commission
of such a grave crime an honest, sincere and dispassionate investigation
should have been made to feel sure that he alone was responsible to
H commit the offence. [U7B; A]
KISHORE CHAND v. STATE OF H.P [K. RAMASWAMY, J.] 109

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 386 of 1978.

From the Judgment and Order dated 19/20th July, 1977 .of the
Himachal Pradesh High Court in Cr!. A. No. 46 of 1976.

Rakesh Luthra, N .N. Bhatt, L.R. Singh (N. P.) and lrshad B
Ahmad for the Appellant.

K.G. Bhagat, N.K. Sharma and Ms. A. Subhashini (N.P.) for
the Respondent.

The Judgment of the Court was delivered by
c
K. RAMASWAMY, J. The appellant, K:C. Sharma, alongwith
two others was charged for the offence punishable under ss. 302 and
20 I read with s. 34 of the Indian Penal Code for causing the death and
concealing the dead body of Joginder Singh. The Additional Sessions
Judge, Kangra Division at Dharamsala convicted all the accused under D.

r s. 302/34 and directed them to undergo imprisonment for life and to
pay a fine of Rs.500 and also to the sentence of two years rigorous
imprisonment and fine of Rs.500 for the offence of s. 201/34, in defauil
of payment of fine for a further period of three months rigorous impri-
sonment. All the sentences were directed to run concurrently. On
appeal the Division Bench pf the High Court of Himachal Pradesh by E
judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence
under s. 302 !PC and confirmed the conviction and sentence of the
appellant and set aside the sentence of fine. The leave having been
granted by this Court, this appeal has been filed.

The narrative of prosecution case runs thus: The deceased Joginder F
Singh, resident of Jogipura, Tah. Kangra on November, 10. 1974.
while going to Pathankot with some currency notes in his possession
went on his way to Jassur Village to meet his friend one Bala
Pahalwan. On enquiry the latter was said to be absent in the village.
The deceased came in contact with the appellant and both went to the
Dhaba of PW. 7, Joginder Singh Paul to have some drink, but PW. 7 G
did not allow them to take liquor inside the Dhaba. Both of them sat in
the back side of the Dhaba to have drink. PW. 8 Tamil. Singh and one
Jai Onkar were also invited to have drink with them. All of them·
together consumed the liguor and ate meat. The deceased paid the
price of the liquor _and meat and when he had become tipsy, PW. 8
suggested to take the deceased to Pathankot or to keep him at Dhaba H
110 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

Beli where at he could make necessary arrangements for their stay but
A
the appellant insisted upon taking the deceased to Kangra. Thereafter
the appellant and the deceased boarded the Truck No. HPK 4179
driven. by A. 2, Madho Ram, Driver and A. 3, Bihari Lal, Cleaner.
PW. 8 and the other left the place. The truck was loaded with the
bricks and the appellant and the deceased sat on the bricks in the body
B of the truck and went towards Kangra side. PW. 12, the Octroi Clerk
at Nurpur states that the truck driven by A. 2 went towards Baijnath.
PW. 13, Burfiram, Chowkidar at ichhi Marketing Co-op. Society
spoke that he saw the truck driven by A. 2 and A. 3 and got unloaded
the bricks at the godown of the said So,iety at about mid-night but the
deceased was not seen there. It is further the case of the prosecution
that while the deceased or accused were going in the truck, there
c ensued a quarrel between them over some money matter and the
appellant took iron-screw driver and gave blows on the head and face
of the deceased. Consequently the deceased was half dead. He was
thrown out of the truck but finding him not dead put him in the truck
and all the accused severed the head with an iron saw and hurried the
O trunk under stones in the outskirts of the village Dhad_hu and carried
the head with them in the truck. The head was hidden at a place
between Guggal and Chaitru on the Kachcha road branching off the
main road to the village lchhi. On November 13, 1974, PW. 6 Karrudi
Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to
answer nature's call at the outskirts of the village Dhadhu and noticed
E the blood stains and a torn pant near the stones. On further probe the
hand of the deceased was seen projecting from the stones and he
'
noticed the dead body. He went and reported to Bidhu Ram, PW. 10,
the Pradhan of the village and two others. All of them went to the
spot, noticed the dead body. PW. 10 kept a watch during the night. On
November 14, 1974 at about 7.00 or 8.00 a.m. PW. 6 went to the Police
.,
F Station and lodged the complaint. PW. 26, the A.S.I. recorded and
issued the First Informaiion Report and proceeded to the spot. He
recovered the articles on and near the dead body under PW. 11,
Panchnama and conducted inquest and sent the dead body for post-
mortem. The Doctor conducted autopsy. On November 15, 1974 the
parents of the deceased came to the Police Station and identified the
G clothes of the deceased. On November 16, 1974, PW. 27, the Sub-
Inspector of the Police took over the investigation. He contacted one
Kuldip Singh, a Conductor in Kapila Transport Company from whom
he came to know that on November 10, 1974, the deceased and the
appellant were seen consuming liquor at Jassur. Thereafter PW. 27
and PW. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the
H appellant's village Sahaura and was sent for the appellant. The appel-
--"'"" KISHORE CHAND v. STATE OF H.P [K. RAMASWAMY, J.] 111

lani on coming to him was found to have shaved off his moustaches.
PW. 27 had enquired as to why he had removed his moustaches upon A
which the appellant was claimed to have replied that he had removed
his moustaches due to demise of his maternal uncle. PW. 10 and PW.
27 took the appellant to Jassur for identification purposes. The appel-
!ant pointed out PW. 7, the owner of the Dhaba and the latter
identified the appellant as one seen in the. company of' the deceased B
and having consumed liquor. Equally of PW. 8. Thereafter the appel-
!ant was taken back to PW. !O's village and PW. 27 left the village for
further investigation. On enquiry made by PW. 10, in the shop of one
::
Mangath Ram and in the company of one Raghunath, to reveal the
truth to him, the appellant was stated to have requested PW. 10
whether he could save him if he would tell the truth. Thereupon PW.
10 stated that he could not save him but if he would speak the truth he c
would help himself. Thereupon the appellant was stated to have made
extra judicial confession giving out the details of consuming liquor
with the deceased; their going together on the truck, the quarrel that
ensued between them; his hitting the deceased with the screw-driver,
throwing the, ~ead body, thinking that he died, on the road realising D
.... that he was not dead, lifting him and putting him in the body of the
truck and all the accused cutting the head of the deceased with the saw
blade and hurrying the trunk under the stones and hiding the head at
different place and thereby they had committed the crime. PW. 10
gave this information to PW. 27 on the next day, namely, November
25, 1974. Thereon all the accused were arrested. On November 27, E
1974, the Driver A. 2 was stated'to have made a statement under s. 27
of the Evidence Act. Ex. PW. 9/A leading to discovery of the hidden
head at a place between Guggal and Chaitru. This statement had been
made in the presence of PW. 9 and another and the severed head was
~· recovered under Memo Ex. PW. 9/B. This was in the presence of PW.
10 and another. The head was sent to the Doctor for post-mortem F
examination. The Doctor verified and found it to be correct and the
doctor corelated the trunk of the dead body and the head belonging to
the .deceased. On November 30·, 1974, pursuant tu statement made by
the appellant and A. 3 under Ex. PW. 16/B leading to recover one
iron-saw without handle and a piece of cloth-wrapped to one of its
sides was recovered from a bush near Kathman Mor and PW. 10 and G
another are Panch witnesses and found the saw blade contained with
blood stains and a piece of cloth of torn pant. They were recovered
under Ex. PW. 16/C. The clothes of the appellant were also claimed to
- have been recovered from his house under E_x. PW. 16/H which was
stained with blood and the same were recovered in the. presence of
PW. 16 The Serologist found the blood stains disintegrated on all the H
112 SUPREME COURT REPORTS [1990) Supp. 1 S.C.R.

items. On the basis of this evidence the prosecution laid the charge-
A sheet against all the accused. As stated earlier the appellant now
stands convicted and sentenced for the offences under ss. 302 and 201
I. P. C. The two others did not file appeal against their convict under
s. 201 l.P.C.
I
B The entire prosecution case rested on circumstantial evidence.
As regards the appellant, the circumstances relied on the prosecution
are three, namely ,(i) the appellant and the deceased were last seen
together by PW. 7, the owner of the liquor shop Dhaba and PW. 8, the
companion who had liquor with the deceased and the appellant; (ii)
the extra judicial confession made to PW. 10, the Pradhan of Guggal
Gram Panchayat; and (iii) the discovery of saw blade pursuant to the
c statement made by the appellant and A. 3 under s. 27 of the Evidence
Act.

The question, therefore, is whether the prosecution proved guilt
of the appellant beyond all reasonable doubt. In a case of circums.tan-
D ti al evidence, all the circumstances from which the conclusion of the
guilt is to be drawn should be fully and cogently established. All the ...
facts so established should be consistent only with the hypothesis of
the guilt of the accused. The proved circumstances should be of a
conclusive nature and definite tendency, unerringly pointing towards
the guilt of the accused. They should be such as to exclude every
E hypothesis but the one proposed to be proved. The circumstances must
be .satisfactorily established and the proved circumstances must bring
home the offences to the accused beyond all reasonable doubt. It is not
necessary that each circumstances bx itself be conclusive but cumula-
tively must form unbroken chain of events leading to the proof of the
guilt of the accused. If those circumstances or some of them can be
F explained by any of the reasonable hypothesis then the accused must
have the benefit of that hypothesis.

In assessing the evidence imaginary possibilities have no role to
play. What is to be considered are ordinary human probabilities. In
other words when there is no direct witness to the commission of
G murder and the case rests entirely on circumstantial evidence, the
circumstances relied on must be fully established. The chain of events
furnished by the circumstances should be so far complete as not to
leave any reasonable ground for conclusion consistent with the inno-
cence of the accused. If any of the circumstances proved in a case are .....
consistent with the innocence of the accused or the chain of the con-
H tinuity of the circumstances is broken, the accused is entitled to the
benefit of the doubt.
KISHORE CHAND 1. STATE OF H.f' [K. RAMASWAMY. J.J 113

In assessing the evidence to find these principles. it is necessary A
to distinguish between facts which may be called primary or basic facts
on one hand and inference of facts to be drawn from them. on the
other. In regard to the proof of basic or primary facts. the court has to
judge the evidence in the ordinary way and in appreciation of the
evidence in proof of those basic facts or primary facts, there is no scope
B
for the application of the doctrine of benefit of doubt. The court has to
consider the evidence and decide whether the evidence proves a
particular fact or not. Whether that fact leads to the inference of the
guilt of the accused or not is another aspect and in dealing with this
aspect of the problem. the doctrine of benefit would apply and an
inference of guilt can be drawn only if the proved facts are inconsistent
with the innocence of the accused and are consistent only with his c
guilt. There is a long distance between may be true and must be true.
The prosecution has to travel all the way to establish fully the chain of
events whkh should be consistent only with hypothesis of the guilt of
the accused and those circumstances should be of conclusive nature
and tendency anj they should be such as to exclude all hypothesis but
D
the one proposed to be proved by the prosecution. In other words.
there must be a chain of evidence so far consistent and complete as not
.to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all
probability the act must have been done by the accused and the
accused alone.
E
The question emerges. therefore. is whether the prosecution has
established the three circumstantial evidence heavily banked upon by
the prosecution in proof of the guilt of the appellant. The first cir-
cumstance is that the deceased and the appellant were last seen
I - together by PW. 7 and PW. 8. From the evidence it is clear that there is
no prior intimacy of the appellant and the deceased. They happened to F
meet per chance. Equally from the evidence it is clear that PW. 7. the
liquor shop owner and PW. 8 who had liquor with the appellant and
the deceased are also absolute strangers to the deceased and the appel-
lant. Admittedly there is no identification parade conducted by the
prosecution to identify the appellant by PW. 7 or PW. 8. The appel)ant
was stated to have pointed out to PW. 7 as the one that'sold the liquor G
and PW. 8 consumed it with him and the deceased. Therefore it is not
reasonably possible to accept the testimony of PW. 7 and PW. 8 when
they professed that they have seen the appellant and the deceased
together consuming the liquor. It is highly artificial and appears on its
face a make believe story.
H
114 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

The next piece of evidence is the alleged extra judicial confession
A
made by the appellant to PW. 10. An unambiguous extra judicial
confession possesses high probative value force as it emanates from
the person ·who committed the crime and is admissible in evidence
provided it ·is free from suspicion and suggestion of its falsity. But in
the process of the proof of the alleged confession the court has to be
B satisfied that it is a voluntary one and does not appear to be the result
of inducement, threat or promise envisaged under section 24 ·of the
Evidence Act or was brought about in suspicious circumstances to
circumvent Sect.ion 25 and 26 of the Evidence Act. Therefore, the
court has to look into the surrounding circumstances and to find
whether the extra judicial confession is not inspired by any improper
or colateral consideration or circumvention of the law suggesting that
c it may not be true one. For this purpose the court must scrutinise all
the relevant facts such as the person to whom the confession is made,
the time and place of making it, the circumstances in which it was made
and finally the actual words used by the accused. Extra judicial confes-
sion if found to be voluntary, can be relied upon by the court alongwith
D other evidence mi record. Therefore, even the extra judicial confes-
sion will also have to be proved like any other fact. The value of the
evidence as to the confession depends upon the verocity of the witness
to whom it is made and the circumstances in which it came to be made
and the actual words used by the accused. Some times it may not be
possible to the witness to reproduce the actual words in which the
E confession was made. For that reason the law insists on recording the
statement by a Judicial Magistrate after administering all necessary
warnings to the accused that it would be used as evidence agianst him.

Admittedly PW. 10 and the appellant do not belong to the same
village. From the narrative of the prosecution story it is clear that PW. -'
F 27, and PW. 10 came together and apprehended the appellant from his
village and was taken to Jassur for identification. After he was
identified by PW. 7 and PW. 8 it was stated that he was brought back
to Gaggal village of PW. 10 and was kept in his company and PW. 27
left for further investigation. Section 25 of the Evidence Act provides
that no confession made to a police officer shall be proved as against a
G person accused of any offence. Section 26 provides that no confession
made by any person while he is under custody of the police officer,
unless it be made in the immediate presence of a magistrate, shall be
proved as against such person. Therefore, the confession made by an
accused person to a police officer is irrelevant by operation of Section
25 and it shall be proved against the appellant. Likewise the confession
H made by the appellant while he is in the custody of the police shall not
KISHORE CHAND ,,, STATE OF H,P {K, RAMASWAMY, !,J 115

be proved against the appellant unless it is made in the immediate
presence of the magistrate, by operation of Section 26 thereof. f\dmit- I\
tedly the appellant did not make any confession in the presence of the
magistrate. The question, therefore, is whether the appellant made the
extra judicial confession while he was in the police custody. It is
incredible to believe that the police officer, PW. 27, after having got
identified the appellant by PW. 7 and PW. 8 as the one last seen .the B
deceased in his company would hav.e left the appellant without taking

- him into custody. His 0 bvious, that with a view to avoid the rigour of
Section 25 and 26, PW. 27 created an artificial scenerio of his leaving
for further investigation and kept the appellant in the custody of PW.
10, the Pradhan to make all e~tra judicial confession. Nothing pre-
vented PW. 27 to take the appellant tq a Judicial Magistrate and had C
his confesson recorded as provided under section 164 of the Cr!. P.C.
which possesses great probative valµe and affords an unerring assur-
ance to the court. It is too increduloµs to believe that for mere asking
to tell the truth'the appellant made voluntarily 9\mfession to PW, 10
and that too sitting in a hotel. The other person in whose presence it
was stated to have been made was not examined to provide· any coi- D
roboration to the testimony of PW. 10. Therefore, it would be legitio
mate to conclude that the appellant was taken into the police custody
and while the accused was in the custody, the extra judidal confession
was obtained through PW. 10 who accommodated the prosecution.
Thereby we can safely reach an irresistible conclusion that the alleged
extra judicial confession statement was made while the appellant was E
in the police custody. It is well settled law that Sections 25 and 26 shall
be construed strictly. Therefore, by operation of Section 26 of the
Evidence Act, the confession made by the appellant to PW. 10 while
he was in t!!e custody of the police officer (PW. 27~ shall not be proved
against th@ i!PPellant. In this view it is unnecessary to go into the
volumary na!iire of the c 0 nfes~ion etc, F

The third circumstance relied on is the statement said to have
been made by the appellan\ µnd<" section 27 of the Evidence Act
leading to discovery ·c;f the consequential information, namely, saw
blade, is not of a conclusive nature con11ecting the appellant with the
crime. The recoveries were long after \l)e arrest of the appellant. The · G
blood stains on all Ille articles w~rn !lisin!egraJed. So it was 11ot possi-
ble to find whether it is hµman bloo<,l or not. Moreover, from the
prosecution evidence it is clear that the deceased himself was. an
accused in an earlier murder case ancj i! is obvious that he had enemies
at his back. Absolutely no motive tp cpmmit crime was attributed to
the appellant. H
...-
116 SUPREME COURT REPORTS [1990] Supp. 1 S.C.R.

No doubt the appellant and two others have been charged for an
A
offence under section ·302 and 201 read with Section 34, namely, com-
man intention to commit the offences and A. 2 and A. 3 were acquit-
ted of the charge under section 302/34, I.P .C. and that there is no
independent charge under section 302, I.P.C. If, from the evidence, it
is established that any one of the accused have committed the crime
B individually, though the other accused were acquitted, even without
any independent charge under section 302. the individual accused

c
would be convicted under section 302, I.P.C. simplicitor. The omis-
sion to frame an independent charge under section 302, l.P.C. does
not vitiate the coviction and sentence under section 302, I.P.C.

Thus considered we find that the prosecution has utterly failed to
-
prove any one of the three circumstances against the appellant and the
chain of circumstances was broken at every stage without connecting
the accused to the commission of the alleged crime as the prosecution
failed to prove as a primary fact all the three circumstances, much less
beyond all reasonable doubt bringing home the guilt to the accused,
D and to prove that the accused alone had committed the crime. There-
fore, the appellant is entitled to the benefit of doubt. The conviction
and sentence of the appellant for the offences under section 302 or
Section 201 of I.P.C. are set aside. The appellant is on bailgranted by
this Court after nine years' incarceration. The bail bond shall stand
cancelled. He shall remain at liberty unless he is required in any other
E case.
I
Before parting with the case, it is necessary to state that from the
facts and circumstances of this case it would appear that the investigat-
ing officer has taken the appellant, a peon, the driver and the cleaner
for ride and trampled upon their fundamental personal liberty and
F lugged them in the capital offence punishable under section 302.
l.P.C. by freely fabricating evidence against the innocent. Undoubte-
dly. heinous crimes are committed under great secrecy and that
investigation of a crime is a difficult and tedious task. At the same time
the liberty of a citizen is a precious one guaranteed by Art. 3 of Uni-
versa! Declaration of Human Rights and also Art. 21 of the Constitu-
G tion of India and its deprivation shall be only in accordance with law.
The accused has the fundamental right to defend himself under Art. 10
of Universal Declaration of Human Rights. The right to defence
includes right to effective and meaningful defence at the trial. The
poor accused cannot defend effectively and adequately. Assigning an ~-
experienced defence counsel to an indigent accused is a facet of fair
H procedure and an inbuilt right to liberty and life envisaged under Arts.
- KISHORE CHAND v. STATE OF H.P {K. RAMASWAMY. J.l

14, 19 and 21 of the Constitution. Weaker the person accused of an
117

A
offence, greater the caution and higher the responsibility of the law
enforcement agencies. Before accusing an innocent person of the com-
mission of a grave crime like the one punishable under section 302,
I.P.C., an honest, sincere and dispassionate invstigation has to be
made and to feel sure that the person suspected of the crime alone was
responsible to commit the offence. Indulging in free fabrication of the
record is a deplorable conduct on the part of an investigating officer
which under-mines the public confidence reposed in the investigating
agency. Therefore, greater care and circumspection are needed by the
investigating_ <1gency in this regard. It is time that the investigating
agencies, evolve new and scientific investigating methods, taking aid
• in the field of investigation. It is also
of rapid scientific development c
the duty of the State, i.e. Central or State Government to organise
periodical refresher courses for the investigating officers to keep them
abreast of the latest scientific development in the art of investigation
and the march of law so that the real offender would be brought to
book and the innocent would not be exposed to prosecution.
D
Though Art. 39A of the Constitution provides fundamental
rights to equal Justice and free legal aid and though the State provides
amicus curiae to defend the indigent accused, he would be meted out
with unequal defence if, as is common knowledge the youngster from the
Bar who has either a little experience or no experience is assigned to
defend him. It is high time that senior counsel practising in the court E
concerned, volunteer to defend such indigent accused as a part of their
professional duty. If these remedial steps are taken and an honest and
objective investigation is done, it will enhance a sense of confidence of
the public in the investigating agency.

We fervently hope and trust that concerned authorities· and F
Senior Advocates would take appropriate steps in this regard.

The appeal is accordingly allowed.
\
P.S.S. Appeal allowed.