Holding

A conviction cannot be based solely on a retracted confession without corroboration, and the extra‑judicial confession was inadmissible; therefore, the appellant's conviction was set aside.

Summary

Parmananda Pegu and his co‑accused Jitu Pegu were convicted and sentenced to death for kidnapping and murdering two minor boys under Sections 302 and 365 IPC. The conviction was based largely on an extra‑judicial confession recorded during a crime‑scene recreation, a judicial confession under Section 164 that was later retracted, and circumstantial evidence such as the recovery of a silver chain. The Supreme Court held that the extra‑judicial confession was inadmissible under Sections 25 and 26 of the Evidence Act, and that a retracted confession cannot form the sole basis of conviction without corroboration. The Court found no independent corroborative evidence linking the appellant to the crime, noted inconsistencies between the confession and medical evidence, and observed that the High Court improperly applied evidence against the co‑accused to the appellant. Consequently, the conviction was set aside and the appeal allowed, resulting in the appellant's release.

Issues considered

The admissibility of an extra‑judicial confession made before an executive magistrate under Sections 25 and 26 of the Evidence Act.
Whether a retracted confession recorded under Section 164 Cr.P.C. can support a conviction without corroboration.
Whether the procedural safeguards under Section 164(2)‑(4) were complied with and the confession was voluntary.
Whether the evidence against the appellant was sufficiently corroborated to sustain a conviction.
The propriety of the High Court's application of co‑accused evidence to the appellant.

Legislation cited

Code of Criminal Procedure, 1973s. 164
Indian Evidence Act, 1872s. 114, s. 24, s. 25, s. 26, s. 30
Indian Penal Code, 1860s. 302, s. 365

Subjects

retracted confessionSection 164corroborationextra‑judicial confessionEvidence Act sections 25,26voluntarinessmedical evidencekidnappingmurderdeath penaltycircumstantial evidence

Judgment

PARMANANDA PEGU A
v.
STA TE OF ASSAM

SEPTEMBER 2, 2004

[P. VENKATARAMA REDDI AND B.P. SINGH, JJ.] B

Criminal Procedure Code, 1973-Section 164-Confession, recording
of-Procedural requirements laid down in sub sections (2) to (4) are
.• mandatory and aimed to ensure that the confession is made voluntarily.

Section 164-Retracted confession and corroboration-An accused can
c
be convicted on the basis of his confession even though the retracted it later
on-Ratio of the decision in Kashmira Singh case that confession cannot be
made the foundation ofconviction was rendered in the context ofconsidering
the utility ofthat confession as against a co-accused-This ratio was wrongly
applied to the case of retracted confession in Chimanlal case-However, D
usually courts require some corroboration to the confessional statement-On
facts, held, there was not a single circumstance proved which substantially
supported the truth of the version contained in confessional statement.

Evidence Act, 1872-Section 26-Confession-Value of extra judicial E
confession-Prosecution sought to rely on extra judicial confession made by
the accused before the Executive Magistrate and others in the course of
recreating the crime scenario at the instance ofpolice-No notes or _record
of proceedings kept by the Executive Magistrate filed in the court-Other
witnesses did not hear the accused clearly while they were narrating the
incidence to the Executive Magistrate-Held, cannot be relied upon. F
Penal Code, 1860-Sections 365 & 302-Appellant and other accused
charged for abducting and killing two minor boys-Convicted and sentenced
to death after trial by both the courts below-Conviction based on extra
judicial confession andjudicial confession which was not corroborated even G
in the minimal materials-Judicial confession later retracted-Held, High
Court erred in relying upon them.

According to the prosecution, appellant and another accused
confessed to have abducted and killed two minor boys. They were
2 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A convicted and sentenced to death after trial by both the courts below.
Conviction was based on incriminating circumstances that the accused
and the deceased were last seen together, recovery of dead body and
silver chain of deceased at the instance of accused, extrajudicial confession
made by the accused, confessional statement made by the accused and
opinion of Medical Officers. The present appeal is preferred by one of
B the accused, as the other accused is absconding.

Allowing the appeal, the Court

HELD: 1.'The High Court fell into a serious error in not considering
c the case of the appellant separately and applying the evidence relating
to the other accused, to the appellant. The deceased were last seen in the
company of other accused only. Silver chain and the dead body of the
deceasetl
/
were recovered at the instance
.
of other accused and not the
appellant. (16-F; 7-HJ

D 2. Accused were alleged to have made extrajudicial confession in
the course of recreating the crime scenario at the instance of police. The
court opined that it cannot it be acted upon as prosecution failed to file
any notes or records of proceedings kept by the Executive Magistrate
(since deceased). None of the other witnesses present at that time heard
the accused clearly while they, were allegedly narrating the incident to
E the Executive Magistrate. [8-H; 9-G; 10-E]

3. Before acting on a confession made before a judicial magistrate
in terms of Section 164, Court must be satisfied that the procedural
requirements laid down in Sub-sections (2) to (4) are complied with.
F These are salutary safeguards to ensure that the confession is made
voluntarily by the accused after being apprised of the implications of •:
making such confessions. As to the retracted confession cf the appellant,
it has been found that the mandatory Procedural requirements have
been fulfilled. But that is not the end of the matter. The Court should
still see whether there are any circumstance appearing from the record,
G which may cast a doubt on the voluntary nature of the confession. The
endeavour of the Court should be to apply its mind to the question
whether the accused was free from threat, duress or inducement at the
time of making the confession. The Court should then test the truth of
the confession for which it should look to corroboration from other
H evidence though there need not be corroboration in respect of each and
PARMANANDA PEGU v. STATE OF ASSAM 3

every material particular. There should be corroboration so that the A
confession taken as a whole fits into the facts proved by other evidence.
The court should have assurance from all angles that the retracted
confession was voluntary and true. [11-C-H; 12-A-C)

4. There need not be meticulous examination of the entire material
particulars. It is enough that there is broad corroboration in conformity B
with the general trend of the confession. In the present case, there is no
other corroborative factor that lends assurance to the truth of the
confession. All the circumstances relied upon by the prosecution by the
> point to the involvement of the other accused but not the appellant.
Thus, it is not safe to convict the appellant solely on the basis of the C
retracted confession. 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 discl~sed in the confession does not fit into the opinion of the
medical expert. 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 D
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.
(14-D; 15-F, G; 16-E; 15H; 16-A, CJ

' Pyare Lal v. State of Rajasthan, (1963) Supp. 1 SCR 689; Subramania
Goundan v. State of Madras, [1958) SCR 428 and State of Maharashtra v. E
Damu, (2000) 6 SCC 269, referred to.

Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473
and Kashmira Singh v. State of Madhya Pradesh, AIR (1952) SC 159,
distinguished.
F
.. CRIMINAL APPELLATE JURISDICTION Criminal Appeal No .
1501 of 2003.

From the Judgment and Order dated 17.7.2003 of the Gauhati High
Court in Crl.D.R.C. No. 3/2002 and Crl.A. }.Jo. 227 of 2002.
G
Manish Singhvi for the Appellant.

Ms. Krishna Sanna, V.K. Sidharthan and Niraj Kumar for Mis.
Corporate Law Group for the Respondent.

The Judgment of the Court was delivered by H
4 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A P. VENKA T ARAMA RED DI, J. : The appellant Parmananda Pegu
along with Jitu Pegu were charged under Sections 365 and 302 IPC for
abducting and killing two minor boys, namely, Robindra Taid and. Keshav
Taid, aged 6 and 10 years respectively on June 28, 1999. After trial, they
were convicted and sentenced to death by the Sessions Judge, Dhemaji by
B his judgment dated 04.03.2002. On appeal the High Court confirmed the
conviction and sentence. This appeal has been preferred by Parmananda Pegu
only. It appears that the other convict Jitu Pegu is absconding: As per the
prosecution case, the victim boys were initially kidnapped/abducted with a
view to demand ransom from their relatives but when the accused suspected
that the villagers were approaching in search of the boys, the accused decided <
c to kill them.

'The genesis of the case began with a report which was lodged with
Gogamukh Police Post on the morning of June 29, 1999 by Basanti Taid
(P.W. 5), the mother of Robindra. She stated that her son. Robindra and her
D husband's brother's son by name Keshav who was residing with her, could
not be traced since 5.30 P.M. of the previous day despite a search made and
that on the morning of the following day, the dead body ofKeshav was found
in a stream beneath a damaged boat but her son Robindra was still
untraceable. Investigation was then taken up by Sub-Inspector of Police
(P.W. 29). He recovered by dead body of Keshav at the place pointed out
E by P. W. 5 and others. He then conducted inquest on the dead body of Keshav
and prepared a report to which PWs 17 and 18 were signatories. The body
was sent to Dhemaji Civil Hospital on the same day i.e. 29.6.1999 for
postmortem examination. The postmortem of the body of Keshav revealed
that he was strangulated to death.
F
The prosecution case then runs as follows :

By interrogating the friends of the vi~tim boys who were playing with
them in the evening of 28th June, 1999, the LO. suspected Jitu, who by then
left the village Baligaon. Having got information on the next day that he was
G at village Majuli, PW 22 arrested and interrogated him. Jitu narrated that he,
the appellant Parmananda and four others formed themselves into a group
named as "All Assam Tiger Force" and kidnapped and murdered the boys.
The 1.0. then arrested the appellant and others named by Jitu on 1.7.1999 -;
itself. Pursuant to the disclosure made by Jitu and on being led by him, PW
22 recovered the dead body of Robindra on 01.07 .1999 from the mud
H
PARMANANDA PEGU v. STATE OF ASSAM [REDD!, J.] 5

embankment at a bamboo grove. PWs I 7 and I 8 witnessed the same. Accused A
Jitu also took the police and other villagers to the place from where the body
of Keshav was recovered. On 4.7.1999, Jitu led the 1.0. and others to the
place where the silver chain of deceased Robindra was hidden. The silver
chain was identified by PW 5 as one worn by Robindra and the same was
seized in the presence of PW 4 and others. On 4. 7.1999, the accused, at the B
instance of the police, recreated the scene of crime in the presence of Shri
C.R. Das, Executive Magistrate (who died and could not be examined) and
other villagers viz. PWs 25, 28 and 29. This was treated as extra-judicial
confession. The post mortem of the dead body ofRobindra was done by the
Senior Medical Officer on 2.7.1999-PW 23. He found the dead body in a
decomposed state. Rigor mortis was absent. Eyes bulged out and got c
damaged. The tongue was in a protruded position and mouth was half open.
There was no vivid wound or bruise over the skin. There was no ligature mark
over the body. Due to decomposition simple abrasions could not be found.
On internal examination he found fracture in the mid part of the parietal bones
and the blood clot on the mid part of the upper surface of the brain. The D
Medical Officer opined that the cause of death was the head injury. The
accused were produced before the Addi. Chief Judicial Magistrate Dhemaji
(P.W. 22) for recording the confessional statement. The Magistrate, after
following the due procedure, recorded the confession of each of the two
accused. However, the other four persons, who were produced, declined to
make the confession. The confessional statement of Jitu Pegu is as follows: E

"As early as in March this year, we, some youths, sat in a me..ting
in a field to start an organization, "Assam Tiger Force" by name.
Those other than me were Paramananda, Kanta Pegu, Kanuram
Pegu, Ajanti Pegu, Kirtinath Doley and Bhuban Nath. The F
organization started. I was the Secretary. Kanta Pegu was the
.. President. That very day we decided at the meeting to kidnap Rebat
Khanikar' s son for ransom. All of us together we tried thrice, but
could not kidnap the boy. Later we decided to kidnap Keshab Taid
and Rabindra Taid, two minor ·boys of our village, for ransom. On
28.6.99 I sent for Keshab and Bhaiti (Rabin). I had engaged G
Prasanta, Manjit and Harekrishna of our village for the purpose.
They (Keshab and Rabin) were playing. Then I took them to a jamu
tree, saying that I would give them Jamu. It was then around 5.30.
I detained Keshab and Rabin against their will and rebuked the rest
• three away. Keshab and Bhaiti wanted to leave, but I enticed them H
6 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A to stay on. Thereafter I called Parama Pegu in. We sat down there
for a while. Then we learnt that the villagers were searching for the
boys. Then I and Parama decided to kill the boys. Accordingly we
tied Keshab's hands up and gagged him with paddy straw. Then we
strangled him to death and threw the body into the nearby water.
B We then placed a boat on the body in overturned position. Parama
took Bhaiti (Rabin) along and strangled him to death not for away.
He threw the body to the 'dhap' (a raised ground along a boundary
of a yard-as per Translator) in the bamboo grove. Then we left the
place. On Wednesday I went to Barpamua in Majuli where the police
arrested me."
c
The confessional statement of appellant Parmananda Pegu is as follows :

"In March this year I and some youths sat in a meeting in a field
to start an organization, "Assam Tiger Force" by name. The
organization was started. I, Ajit Pegu, Kantaram Pegu, Mahananda
D
Pegu, Kirtinath Doley and Sadarianda Pegu were there in the
organization. Jitu Pegu, was the Secretary of the organization. Kanta
Pegu was the President. In that meeting we decided to kidnap Rebat
Khanikar's son for ranson. We tried thrice to kidnap that boy, but ,
failed. Then we decided that we would kidnap Keshab and Rabin
E alias Bhaiti of our village for a ransom. Accordingly Jitu brought
Keshab and Rabin along to a jamu tree. Jitu called me. Reaching
there I found Rabin and Keshab there. There we· sat down. Leaving
them there, we were searching for a place (to hide the boys). But
after a little while we heard the noise of a crowd. Then we decided
F that we would kill the boys. The rest of our organization had not
turned up. I took Bhaiti (Rabin) to a bamboo grove to ~ill him there.
Jitu took the older boy, Keshab, to kill. I killed Bhaiti by strangling
and left the body on the 'dhap' in the bamboo grove. Thereafter I
came home. In the morning on 30.6.99 the police arrested me."

G In the course of examination under Section 313 Cr.P.C. the two accused
retracted from the confession made earlier and took the stand that it was net
voluntary and they were tortured and tutored by the police. Both the accused
examined themselves as defence witnesses to depose that the confession was
not voluntarily made and that they were innocent. The appellant further stated
H that a false statement was given by Jitu Pegu implicating him in the murder.
PARMANANDA PEGU v. STATE OF ASSAM [REDDI, J.] 7
JI' •
The High Court analysed the incriminating circumstances against the A
accused as follows :

1. The accused and the deceased were last seen together on 28.6.1999 at
about 5 p.m. as stated by prosecution witnesses.

2. Recovery of silver chain of deceased-Robindrn Taid by PW 29 and B
others from the place where the accused kept (silver chain) (Material
Ext. 1) which was being worn by the deceased-Robindra.

~ ,.. 3. Accused-Jitu Pegu fled away to Majuli.

4. Confessional statement made by the accused.
c
5. Extra Judicial Confession made by the accused before PWs 25, 28 &
29 and some others.

6. Recovery of dead body of deceased-Robindra at the instance of the D
accused Jitu Pegu.

Opinion of Medical Officers (PWs 23 & 24).

.. •
7.

We shall examine whether any of the circumstances could be pressed
into service in judging the complicity of the appellant in the crime. E
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 I to 3 categorically stated that it was Jitu Pegu who coaxed
them to bring the boys Robindra and Keshav and detained them with him
F
and quipped to PWs l to 3 that they would be returning by a different route
rater. 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

... herein .

The second circumstance is also relatable to the first accused Jitu Pegu
G

only. The recovery of silver chain of Robindra was at the instance of Jitu

i
Pegu, but not the appellant. The seizure list dated 4. 7.1999 relating to silver
chain is Ex. 1. It was prepared by the 1.0.-PW 29 and witnessed by late
H
8 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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. PW 4, 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". PW 4 further stated that he did not know the other accused. This
B
is what PW 6 deposed : "on the way back with the police party, Jitu Pegu
recovered a silver chain in the yard of Padma Nath Doley (PW 4) 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. l(ii) is my signature. M.Ex. 1 is the
silver chain. The silver chain belonged to Robindra". Thus, the finding of
c High Court with regard to the second piece of circumstantial evidence,
insofar as the appellant is concerned, is clearly unsustainable.

The third circumstances ex-facie does not apply to the appellant because
it was Jitu Pegu only who absconded after the incident.
D
The fourth and fifth circumstances are the confessional statem.<:!nt and
extra-judicial confession which we shall advert to later.

As 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
E 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 LO. (P.W.-29) categorically stated "as shown by Jitu Pegu, I found
F Robindra Taid's 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 death body was found. But such
statement cannot be true having regard to the clear evidence of PWs 17 and
G 29 on this point.

We shall now proceed to consider the circumstance No. 5 i.e. extra
judicial confession. This extra judicial confession, according to the prosecution,
-
consists of the narration of incidents on the crucial day by recreating the
H crime scenario in the presence of the Executive Magistrate (who was not
PARMANANDA PEGU v. STATE OF ASSAM [REDDI, J.] 9

-- examined on account of his death) and PWs 25, 26 & 28. The High Court
having held in the first sentence of paragraph I I that "the extra judicial
A

confession which was made in the presence of the police as stated by PWs
25, 28 & 29 was inadmissible in evidence in view of the provisions of
Sections 25 & 26 of the Evidence Act", proceeded to say in the second
sentence as follows : B
"In this case, we find that the accused persons had also made extra
judicial confession before PW 22 and subsequently, there was a
verification of the said confession, when the accused in presence of
the above witness-PWs 28 & 29 had shown the place, where the
incident took place and reconstructed the scene of occurrence by c
pointing the place and the manner in which the incident took place."

The High Court proceeded on the wrong premise that there was an extra
judicial confession before PW 22 (Additional C.J.M.). The High Court
overlooked the fact that the confession recorded on 6. 7. I 999 by PW 22 was D
a judicial confession had PW 22 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 PW 22
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
.E
in the presence of PWs 25, 28 & 29 (1.0.) and an6ther 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 upon.
F
Section 26 of the Indian Evidenc~ Act enjoins : "no confession made
by any person while he is in the custody of a police officer, unless it be made
in the immediate presence of the Magistrate, shall be proved as against such
person". The question is whether the alleged confession made by the
appellant before the Executive Magistrate and other witnesses namely PWs
25, 26 & 28 in the course of recreating the crime scenario could be given G
any weight. First of all, it must be noted that the prosecution has not filed
any notes or record of proceedings kept by the deceased Executive Magistrate.
No explanation is forthcoming for not producing the same though it is an
official document which was accessible to the prosecution. PWs 25, 26 and
28 claimt!d that at the instance of the police they accompanied the two H.
10 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A accused, the Executive Magistrate and the 1.0. to various places shown by
the accused and they heard the accused including the present appellant
confessing to the murder. Their evidence, however, does not inspire confidence
that it is credible. PW 25 said in his cross examination that they were kept
at some distance away from the accused and the Executive Magistrate and
the police had questioned the two accused. If the said three witnesses were
B called for the specific purpose of hearing the confession, if any, made by the
accused, they would not have remained at a distance. It appears that the
exercise of recreation of the incidents relating to crime was primarily meant
to be taken note of by the Executive Magistrate. Though PWs 25, 26 and
28 might have accompanied them, there is a doubt whether they were within
C the hearing distance from the accused and whether they did really hear what
the accused had said. Otherwise there was no scope for PW 26 deposing that
Parmanand confession to the effect that the carried Keshav some 200 meters
sought west of the Jamun tree and it was there that he had killed Keshav and
put the body beneath the boat in a canal. Thus the confession attributable to
Jitu Pegu, as per the prosecution case, has been attributed to the appellant
D Parmanand as if Parmanand had killed Keshav and concealed the dead body
beneath the boat. It is not the prosecution case that Parmanand had confessed
of having killed Keshav. Thus PW 26 completely contradicts PW 25. The
reason perhaps is that none of them heard the accused clearly while they were
I·
all~gedly narrating the incident to the Executive Magistrate. Further, according

E to PW 25, the police also took pa~ in questioning the accused along with
the Executive Magistrate. The Deputy Superintendent of Police was also
present on that occasion. In these circumstances as serious doubt arises as
to the voluntariness of the confession said to have been made in the presence
of the Executive Magistrate and others. After PW 26 made a somersault of
the prosecution case, PW 28 had taken care to tell the story consistent with
F the prosecution version. He stated that Parmanand (appellant) made a
confession of having strangulated Robindra and placed the body in a ditch ..
In fact, there was no strangulation as p~r the medical evidence. If so it is
doubtful whether PW 28 or the other two witnesses .did at all hear the
appellant making the confession. We have, therefore, no option but to discard
G the evidence of PWs 25, 26 and 28 speaking to the alleged confession made
by the appellant in their presence and in the presence of the Executive
Magistrate. The High Court readily assumed that the confession was made
in the presence of PWs. 25 and 28 (PW 26 having been omitted by the High
Court) without critical analysis and evaluation of the evidence.

H The medical evidence in the last circumstances purportedly
PARMANANDA PEGU v. STATE OF ASSAM [REDDI, J.] 11
.- I
relied upon by the High Court. We are unable to understand how the High A
Court has put the medical evidence against the appellant. The medical
evidence does not support the prosecution version of strangulation of
Robindra Taid. We shall elaborate his aspect in the course of discussion of
the next point.

The foremost amongst the factors that are sought to be relied upon by B
the prosecution is the retracted confession of the appellant recorded under
Section 164 Cr.P.C. The confession has been extracted supra in verbatim.
Before acting on a confession made before a Judicial Magistrate in terms of
Section 164, the Court must be satisfied first that the procedural requirements
laid down in Sub-sections (2) to (4) are complied with. These are salutary C
safeguards to ensure that the ~onfession is made voluntarily by the accused
after being apprised of the implications of making such confession. Looking
at the confessional statement (Ext. 8) coupled with the evidence of PW 22,
the then Addi. Chief Judicial Magistrate, Dhemaji, we have no doubt in our
mind that the procedural requirements have been fulfilled. Inter alia, PW 22
deposed that after cautioning the accused that the confessional statement, if
made, will be used in evidence against them, he gave three hours time for
reflection during which the accused were kept in a room attached to the Court
in the immediate presence of an office peon. PW 22 further stated that it
appeared to him that the accused made the statement voluntarily. A
memorandum as required by sub-Section (4) was also recorded. Thus the first E
requirement for acting on a confession is satisfied but that is not the end of
the matter. The Court, called upon to consider the evidence against the
accused, should still see whether there are any circumstances appearing from
the record which may cast a doubt on the voluntary nature of the confession.
The endeavour of the Court should be to apply its mind to the question F
whether the accused was free from threat, duress or inducement at the time
of making the confession. In doing so, the Court should bear in mind, the
principle enunciated in Pyare Lal v. State of Rajasthan, [ 1963] Supp. 1 SCR
689 that under Section 24 of the Evidence Act, a stringent rule of proof as
to the existence of threat, duress or inducement should not be applied and
a prima facie opinion based on evidence and circumstances may be adopted G
as the standard laid down. To put it in other word, "on the evidence and the
circumstances in a particular case it may appear to the Court that there was
a threat, inducement or promise, though the said fact is not strictly proved".

Having thus reached a finding as to voluntary nature of a confession, H
12 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A the truth of the confession should then be tested by the Court. The fact that
the confession has been made voluntarily, free from threat and inducement,
can be regarded as presumptive evidence of its truth. Still, there may be
circumstances to indicate that the confession cannot be true wholly or partly
in which case it loses much of its evidentiary value.
B In order to be assured of the truth of confession, this Court, in a series
of decisions, has evolved a rule of prudence that the Court should took to
corroboration from other evidence. However, there need not be corroboration
in respect of each and every material particular. Broadly, there should be ,-
corroboration so that the confession. taken as a whole fits into the facts proved
C by other evidence. In substance, the Court should have assurance from all
angles that the retracted confession was, in fact, voluntary and it must have
been true. The law on the subject of retracted confession has been succinctly
laid down by a three Judge bench of this Court in Subramania Goundan v.
State of Madras, [ 1958] SCR 428 which lays down :

D "The next question is whether there is corroboration of the confession
since it has been retracted. A confession of a crime by a person, who
has perpetrated it, is usually the outcome of penitence and remorse
and in noonal circumstances is the best evidence against the maker.
The question has very often arisen whether a retracted confession '
may form the basis of conviction if believed to be true and
E voluntarily made. For the purpose of arriving at this conclusion the
court has to take into consideration not only the reasons given for
making the confession or retracting it but the attending facts and
circumstances surrounding the same. It may be remarked that there
can be no absolute rule that a retracted confession cannot be acted
F upon unless the same is corroborated materially. It was laid down
in certain cases on such being Jn re Kesava Pillai, ILR 53 Mad. 160 ....
: AIR (1929) Mad. 837 (B) that ifthe reasons given by an accused
person for retracting a confession are on the face of them false, the
confession may be acted upon as it stands and without any
corroboration. But the view taken by this Court on more occasions
G than one is that as a matter of prudence and caution which has
sanctified itself into a rule of law, a retracted confession cannot be
made solely the basis of conviction unless the same is corroborated
one of the latest cases being Balbir Singh v. State ofPunjab, (S) AIR
(\957) SC 216 (C), but it does not necessarily mean that each and
H every circumstance mentioned in the confession regarding the
..,. I
PARMANANDA PEGU v. STATE OF ASSAM [REDDI, J.] 13

complicity of the accused must be separately and independently A
corroborated nor is it essential that the corroboration must come
from facts and circumstances discovered after the confession was
made. It would be sufficient, in our opinion, that the general trend
of the confession is substantiated by some evidence which would
tally with what is contained in the confession."
B
The learned Judges then highlighted the difference between retracted confession
and the evidence of an approver or an accomplice.

"Though under Section 133 of the Evidence Act, a conviction is not
illegal merely because it proceeds on the uncorroborated testimony C
of witnesses, illustration (b) to Section 114 lays down that a Court
may presume that an accomplice is unworthy of credit unless he is
corroborated i_n material particulars. In the case of such a person on
his own showing he is a depraved and debased individual who
having taken part in the crime tries to exculpate himself and wants
to fasten the liability on another. In such circumstances it is D
absolutely necessary that what he has deposed must be corroborated
in material particulars. In contrasting this with the statement of a
person making a confession who stands on a better footing, one need
only find out when there is a retraction whether the earlier statement,
which was the result of remorse, repentance and contrition, was E
voluntary and true or not and it is with that object that corroboration
is sought for. Not infrequently one is apt to fall in error in equating
a retracted confession with the evidence of an accomplice and
therefore it is advisable to clearly understand the distinction between
the two. The standards of corroboration in the two are quite

- different. In the case of the person confessing who has resiled from
his statement, general corroboration is sufficient while an
accomplice's evidence should be corroborated in material particulars.
F

In addition the Court must feel that the reasons given for the
retraction in the case of a confession are untrue."

In Pyare Lal, supra, the same principle in regard to the evidentiary value G
of retracted confession has been reiterated. Subba Rao, J. speaking for a four
Judge Bench, stated the legal position thus :

" ...A retracted confession may form the legal basis of a conviction
if the Court is satisfied that it was true and was voluntarily made. H
14 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. 1 ·•.,.

A But it has been held that a Court shall not base a conviction on such
a confession without corroboration. It is not a rule oflaw, but is only,
a rule of prudence. It cannot even be laid down as an inflexible rule
of practice or prudence that under no circumstances such a conviction
can be made without corroboration, for a Court may, in a particular
case, be convinced of the absolute truth of a confession and prepared
B to act upon it without corroboration; but it may be laid down as a
general rule of practice that it is unsafe to rely upon a confession,
much less on a retracted confession, unless the Court is satisfied that
the retracted confession is true and voluntarily made and has been r ·1
corroborated in material particulars."
c
By the use of the expression "corroboration of material particulars", the Court
has not laid down any proposition contrary to what has been clarified in
Subramania Goundan 's case (supra) as regards the extent of corroboration
required. The above expression does not imply that there should be meticulous
examination of the entire material particulars. It is enough that there is broad
D corroboration is conformity with the general trend of the confession, as
pointed out in Subramania Goundan 's case.

The decision of this Court in Chandra/cant Chimanlal Desai v. State of
Gujarat, [ 1992] 1 SCC 4 73 has created some difficulty in understanding the
law which is otherwise so well settled. The learned Judges imported the
E
observations which were made in Kashmira Singh v. 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 ................ "
F However, in the ne"xt of the judgment it is crystal clear that the entire
discussion and the statement of law was only with reference of the confession ..
of the co-accused. While clarifying that the confession of the co-accused is
not evidence in the ordinary sense of th-;: term as pointed out by the Privy
Council, this Court observed in Kashmira Singh 's case that such a confession
cannot be made the foundation of a conviction and can only be used in
G support of other evidence.

In Chimanlal's 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
H observed:
.... PARMANANDA PEGU v. STATE OF ASSAM [REDDI, J.] 15

"The High Court has on the other hand made this confessional A
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 B
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 ....... "

In view of the error in comprehending the scope of the decision in
Kashmira Singh 's case the decision in Chimanlal 's case falls close to the
c
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 v. State of Rajasthan supra.

We may point out that in the State of Maharashtra v. Damu, [2000] D
6 SCC 269, this Court .noticed the apparent error in Chimanlal's 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
E
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."

F
- 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 G
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 H
16 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. ; "
A 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. PW 23, 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
B 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
c 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
D to the version of strangulation in tune with what had been noted by the 1.0.
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
E 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.

Before parting with the case, we must observe that the High Court fell
F into a serious error in not considering the case pf 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.

We therefore set aside the conviction of the appellant under Sections
G 302 & 365 IPC and allow the appeal. The appellant shall be released forthwith
from the jail, unless required in any other case.

K.G. Appeal allowed.
. . I-