Holding

A co‑accused's confession alone is insufficient for conviction; in the absence of independent corroboration, the conviction must be set aside.

Summary

The appellant, Prakash Kumar (also known as Prakash Bhutto), was convicted under IPC sections 120B, 342 and 365 for kidnapping, confinement and conspiracy based solely on the confession of a co‑accused recorded under the TADA Act. The Supreme Court held that a co‑accused's confession is a fragile piece of evidence and cannot, by itself, establish the guilt of another accused; it must be corroborated by independent evidence. The prosecution failed to produce any corroborative material linking the appellant to the crime, the only allegation being that he pointed out the victim. Consequently, the conviction was set aside and the appellant, along with other co‑accused, was acquitted and discharged from bail bonds.

Issues considered

Whether a confession of a co‑accused can, on its own, constitute sufficient evidence to convict another accused under IPC sections 120B, 342 and 365.
Whether the prosecution satisfied the requirement of corroboration for a co‑accused's confession under the TADA Act.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 342, s. 365
Terrorist and Disruptive Activities (Prevention) Acts. 15

Subjects

confessionco-accusedcorroborationcriminal conspiracykidnappingwrongful confinementTADAevidentiary standardsacquittal

Judgment

A PRAKASH KUMAR @ PRAKASH BHUTTO
v.
STATE OF GUJARAT

APRIL 24, 2007

B [K.G. BALAKRISHNAN CJ. AND G.P. MA THUR, J.)

Penal Code, 1860-Sections 1208, 342 and 365-Conviction under-
On basis ofconfession made by co-accused-Correctness of-Held: Confession
C made was to the effect that the accused in the company of other co-accused
and had pointed towards the victim whereupon other accused took the victim
forcibly which is not proved by other independent evidence-No other
supporting evidence to prove the guilt of the accused-Thus, conviction of
accused not correct and is set aside-Evidence.

D According to the prosecution case, the appellant-accused in criminal
Appeal No. 526 of2001 along with other accused kidnapped a business man,
confined him and extorted money. Complaint was lodged and investigation was J
,
carried out. Few of the accused persons were arrested. One of the co-accused
expressed his desire to make confession. His confession was recorded which
gave detailed statement regarding the commission of crime. On basis of the
E confession made by co-accused, the appellant was convicted for the offences
punishable under sections 120-8, 342 & 365 IPC. Hence the present appeal.

Allowing the appeal, the Court

F
HELD: I. The confession of a co-accused by itself is not sufficient to
hold the other accused guilty. The confession of a co-accused is a fragile and
feeble type of evidence and it could only be used to support the other evidence,
-
if any, adduced by the prosecution. However, confession is a substantive piece
of evidence, but as a 'Rule of Prudence' the court should seek other
corroborative evidence to test its veracity. [Para 6] [536-D-E]
G Haricharan Kurmi v. State ofBihar, [1964] 6 SCR 623 and State through
Superintendent ofPolice, CBJIS!Tv. Na/ini and Ors., [1999] 5 SCC 253, relied
on.

2. ln the instant case, the prosecution could not adduce any other
H 532
-- '\....
PRAKASH KUMAR@PRAKASH BHUTIO •.STATE OF GUJARAT [BALAKRISHNAN, CJ.]

supporting evidence to prove the guilt of the appellant Even based on the
533

A
confession of the co-accused, the only allegation against the appellant is that
be was in the company of the other co-accused and had pointed out towards
the victim by making a sign whereupon the other accused over-powered the
victim and took him forcibly in the Maruti van. To prove that the appellant
was in the company of other accused, there is no other independent evidence.
Even though the prosecution adduced other evidence to prove that the v.ictim B
was forcibly taken and kept in unlawful custody, the complicity of the appellant
j could not be proved. The prosecution failed to prove the case against the
-\
appellant. Therefore, the finding of the Special Judge is erroneous and the
appellant is acquitted of all the charges framed against him. The appellants
in the other appeals are also acquitted of all the charges framed against them. c
The appellants on bail, are discharged from the liability of bail bonds.
(Paras 7, 8 and 9) [533-F-G, H; 537-A-B)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 526 of
2001.
D
From the Judgment and Order dated 19.03.2001 of the Designated Court
.t.
> Nos. 3 at Ahmedabad in Terrorist Criminal Case No. 2of1997.

WITH

Crl. A. No. 545 & 665 of2001. E
Sushi! Kumar, Vinay Arora, Adolf Mathew, Mukesh Kumar, Sanjay Jain,
Priyanka Adhyaru, Sudarshan Singh Rawat, Dr. Manish Singhvi, Prakash
Kumar B. (for Ashok K. Mahajan) and Anu Mohla for the Appellants.
~
Yashank Adhyaru, Vibha Datta Makhija, Sadhana Sandhu, Pinky Behera, F
Hemantika Wahi and K. Sarada Devi for the Respondent.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, CJI. I .All these appeals arise out of common
,-

-· judgment dated 19-3-2001 of the Designated Court at Ahmedabad for trial of
TADA cases in Terrorist Criminal Case No. 33 of 1994 and Terrorist Criminal
Case No. 24 of 1996. There were seven accused in Terrorist Criminal Case No.
33 of 1994 and four accused in Terrorist Criminal case No. 24 of 1996. One
accused died during the pendency of the case and six accused were convicted
G

for the offences punishable under Sections 120, 365 read with Section 120-
H
534 SUPREME COURT REPORTS (2007] 5 S.C.R.

A B of the Indian Penal Code (!PC) and Section 342 read with Section 120-B !PC.
-
2. The appellant in Criminal Appeal No. 526/200 I was the ninth accused
and was convicted for the offences punishable under Sections 120 B, 342 and
365 !PC. All the accused were charged for various offences under !PC, TADA
Act and Arms Act. The allegation against the appellant was that on 26-9-1993
B at about 2.00 P.M, he alongwith other accused kidnapped one Babula! Misrimal
Jain and kept him in confinement for two days and extorted money. The said
Babula! Misrimal was the owner ofRatnamani Tubewell Limited at Kaloi. On
26-9-1993, he went for a community lunch held at Rani Sati Hall in Ahmedabad. •
After the lunch he was standing outside the hall with his friends when the
C accused came in a Maruti-van and accused No. 2 Mohammad Salim (now
deceased), accused No. 3 Iqbal Hussain and accused No. I0 Mohammad Atik
dragged him into that van. Thereafter they took him to an unknown place and
kept in confinement. When Babula! Misrimal was being taken away, some of
his friends and relatives standing outside made a hue and cry and it was
alleged that accused No. 3 Iqbal Hussain and accused No. 10 Mohammad
D Atik opened fire by using their revolvers. Babula! Misrimal was taken to Amul
Process House at Danilimbad owned by accused No. 6. Thereafter, the accused
demanded Rs. 60 lacs from the brothers and relatives of Babula! Misrimal.
Finally, the deal was struck at Rs. 25 lacs. The amount ofransom was received
and it was shared amongst all the accused. The major share of Rs. 4 lacs was
E paid to accused No. I Abdulwahab. An amount of Rs. 40,000/- was received
by accused No. 10 Mohammad Atik. Prosecution also alleged that some of
the accused purchased properties making use of the money received from
Babula! Misrimal. The accused No. I is reported to have also applied for a
passport under a fictitious name. Another accused namely, Sherjada died
during the course of investigation. Accused Abdul Latif though charge-
F sheeted died before the charge could be framed against him by the court.
3. On 26-9-1993 at about 2.30 P.M. Dinesh Ramanlal Shah gave a complaint
to the Shahibaug Police Station. They registered the crime and informed the
superior Police Officers about the incident. PW 18 visited the scene of
occurrence and recovered two empty cartridges from the place and also the
G chappals and slippers. Police inspector Jivabhai Ratnabai Prajapati (PW 19)
took over further investigation. He visited the scene of occurrence and
recorded the statements of some of the witnesses who were available. Later,
the investigation was handed over to another officer and on 9-4-1994 accused
No. 3 was arrested. Thereafter Police Inspector Udaykumar Tribhavan took
H over the investigation and arrested accused Nos. 6 and 7 on 27-7-1994.
---- '--
PRAKASHKUMAR@PRAKASHBHUTTOv. STATEOFGUJARAT[BALAKRISHNAN,CJ.] 535

A-4, A-1 and A-2 were also arrested later. On 8-9-1994, the investigation was A
handed over to ACP, Shri B.R. Patil. He requested for Government sanction
' for invoking the provisions of TADA Act against the accused. A-8 was
arrested on 12-3-1996. Accused Sattar Battery expressed his willingness to
give a confession and accordingly the Assistant Commissioner of Police B.R.
Patil recorded his confession under Section 15 of the TADA Act. PW 25, B.R.
Patil, Assistant Commissioner of Police in Crime Branch at Ahemdabad arrested B
Babakhan s/o lsmailkhan on 11-1-1995. On 14-1-1995, accused Babakhan (A-
~
11) expressed his desire to make a confession and he was produced before
the Deputy Commissioner of Police, Shri A.K. Surolia. On the next date, that
is, 15-1-1995, PW 25 was asked to produce A-11 Babakhan and his confession
was recorded. Deputy Commissioner of Police, Shri A.K. Surolia gave the c
confession of A-11 Babakhan in a sealed cover to PW 25 B.R Patil and asked
him to produce A-11 Babakhan, along with the sealed cover containing his
confession, before the Chief Metropolitan Magistrate.

4. A-11 Babakhan gave a detailed statement regarding the commission
of the crime and the relevant part of the confession is as follows :- D
~ "About quarter and one year, in the ninth month of 1993, during
last week, Atik told me that Shejada sits in the office situated opp.
Mirzapur Court where Prakash Bhutto is sitting. He told us that on
26th Noon, in Rani-Sati Hall, near Shahibaug, Underbridge, there is
Community lunch of Baniya, wherein leading persons are to come and E
for their abduction, there would be no difficulty and crores of rupees

- would be obtained. After such talk, Sherjada called me, Atik, Vahab,
Iqbal Bhuriyo, Salim Ando and Yasin Chipa of Jamalpur at his home
he gave Point 45 Revolver to Atik and Point 38 Revolver to !bu. The
·1 number plate of Maruti-van of Sherjada being No. GJ-9-1045 was F
affixed and taking it, we went to Rani Sati Hall. Salim Ando was
driving the vehicle. We stood at one place. Outside the Hall, Prakash
Bhutto pointed out one fat industrialist seated on the scooter by
making the sign, whom we identified exactly. Salim Ando took the

,
- .• Maruti-van towards him and brought it near said fat man and stopped
it. Lifting the said fat man and while throwing him in the vehicle, some G
scuffle took place. At that time, Ibu and Atik fired shots from their
Revolvers and therefore, people scattered and hence, said fat man was
thrown in the vehicle. Applying bandage on his eyes, via Underbridge
he was brought to Amul Process House in Dani Limda. There also
bandage continued on the eyes of said fat man. Sherjada and Vahab
H
A
536 SUPREME COURT REPORTS [2007] 5 S.C.R.

telephoned to the friends and relatives at their residence of the fat
man, and demanded money. The name of the said fat man was Babulal
Sanghvi. On the next day, Vahab told that transaction was over and
- '-
...

let us release Babula!. I do not know, what amount was taken for the
release of Babula! Sanghvi.. But subsequently Vahab told that Rs. 15/
- lacs were obtained. Latifbhai has told not to make disposal. And
B Vahab applied the cotton and the bandage of medicine on the eyes
of Babula! and putting Balck-gogles on it, Vahab told Atik, Ibu and
Sherjada to take Babula! at Kankaria and get him seated in rickshaw,
allowing him to go to Shahibaug. Accordingly, on the motor cycle of
•
Sherjada, Atik and !bu seated Babula! Sanghvi and dropped him at
c Kankaria. Subsequently Vahab gave me Rs. 50,000/- for this work."

5. Based on the above confession made by A-11 Babakhan, the appellant ....
in Criminal Appeal No. 526/2001 was convicted for the offences punishable
under Sections 120 B, 342 and 365 !PC.

D 6. The confession of a co-accused by itself is not sufficient to hold the
other accused guilty. It has been held repeatedly by this Court th&t the
confession of a co-accused is a fragile and feeble type of evidence and it )
could only be used to support the other evidence, if any, adduced by the
prosecution. [ See : Haricharan Kurmi v. State of Bihar, [1964) 6 SCR 623,
Though in State through Superintendent of Police, CBI/SIT v. Nalini and
E Others., [1999) 5 SCC 253, it has been held that confession is a substantive
piece of evidence, but as a 'Rule of Prudence' the court should seek other
corroborative evidence to test its veracity.

7. The prosecution could not adduce any other supporting evidence to
-
prove the guilt of the appellant. Even based on the confession of the co-
F accused, the only allegation against the appellant is that he was in the ':
company of the other co-accused and had pointed out towards the victim by
making a sign whereupon the other accused over-powered the victim and
took him forcibly in the Maruti van. To prove that the appellant was in the
.company of other accused, there is no other independent evidence. Even
G though the prosecution adduced other evidence to prove that the victim
Babula! Misrimal Jain was forcibly taken and kept in unlawful custody, the •••
complicity of the appellant could not be proved. The prosecution has failed
to prove the case against the appellant.

8. Therefore, the finding of the Special Judge is erroneous. Criminal
H Appeal No. 526/200 I is allowed and the appellant herein is acquitted of all the
PRAKASH KUMAR@PRAKASH BHUITO 1•. STA1E OF GUJARAT [BALAKRISHNAN, CJ.] 537

charges framed against him. The appellant, who is on bail, is discharged from A
the liability of bail bonds.

9. Criminal Appeal No. 545/2001 and Criminal Appeal No. 665/2001 filed
against the same judgment are also accordingly allowed and the appellants
therein are acquitted of all the charges framed against them. The appellants,
who are on bail, are discharged from the liability of bail bonds. B
NJ. Appeal allowed.
..
1

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