Supreme Court of India
S. ARUL RAJAversusSTATE OF TAMIL NADU
- Citation
- 2010 INSC 459
- Decided
- 30 July 2010
- Disposal
- Appeal(s) allowed
- Bench
- MUKUNDAKAM SHARMA
Holding
The Court held that the prosecution failed to prove motive, conspiracy, and that A1's statement was neither a dying declaration, nor a valid confession, nor an admissible extra‑judicial confession, leading to the appellant's acquittal.
Summary
The appellant, Arul Raja, was accused of murdering Aladi Aruna and of conspiring with co‑accused to commit the crime. The High Court convicted him on the basis of a post‑arrest statement by co‑accused A1, treating it as a dying declaration and a confession, and on alleged motive stemming from a rivalry over college affiliations. The Supreme Court examined whether a clear motive existed, whether a criminal conspiracy was proved, and whether A1's statement could be admitted as a dying declaration, a confession under s.164 CrPC, or an extra‑judicial confession, also considering its admissibility under s.10 of the Evidence Act. It held that no motive or agreement could be established, that the statement was not a dying declaration (the declarant was alive), was not recorded per s.164, and was not a reliable extra‑judicial confession; consequently it could not be used to implicate the appellant. The prosecution’s evidence was insufficient to sustain convictions under s.302, s.307 or s.120‑B IPC. The Court reversed the High Court’s judgment, acquitted the appellant and ordered his release on the benefit of doubt.
Issues considered
- Whether a motive existed for the appellant to murder Aladi Aruna
- Whether the appellant participated in a criminal conspiracy under s.120‑B IPC
- Whether the post‑arrest statement of co‑accused A1 qualifies as a dying declaration under s.32 Evidence Act
- Whether the statement is admissible as a confession under s.164 CrPC
- Whether the statement can be treated as an extra‑judicial confession and if it meets the required safeguards
- Whether the statement falls within s.10 of the Evidence Act and can be used against co‑conspirators
Legislation cited
- Code of Criminal Procedure, 1973s. 164
- Indian Evidence Act, 1872s. 10, s. 155, s. 157, s. 162, s. 24, s. 32
- Indian Penal Code, 1860s. 120-B, s. 302, s. 307
Subjects
motivecriminal conspiracydying declarationconfessionextra‑judicial confessionSection 10 Evidence Actbenefit of doubtacquittalcircumstantial evidence
Judgment
[2010] 9 S.C.R. 356
S. ARUL RAJA
A
v.
STATE OF TAMIL NADU
(Criminal Appeal No. 1494-95 of 2009)
JULY 30, 2010
B
[DR. MUKUNDAKAM SHARMA AND C.K. PRASAD, JJ.]
Penal Code, 1860:
ss. 302 and s. 120-8 - Death caused allegedly in
C pursuance of criminal conspiracy - Various accused -
Statement of one accused while in police custody -
Circumstantial evidence - Acquittal by trial court - Conviction
of accused-appellant by High Court- Challenge to - Held:
On facts, the chain of events did not establish a clear motive
D for the appellant to commit the offence of murder -
Prosecution failed to substantiate the allegation of conspiracy
against the appellant - The statement of co-accused did not
constitute a valid dying declaration or a confession or an
evidence in any manner to implicate the appellant , and also
E did not fall within the ambit of s.10 of the Evidence Act -
Appellant given benefit of doubt and acquitted - Code of
Criminal Procedure, 1973 - s.164 - Evidence Act, 1872 -
s.10.
F s. 120-8 - Criminal conspiracy - Ingredients of -
Discussed.
Evidence:
Confessional statement - Admissibility of - Guidelines
G discussed - Held: A statement that does not prescribe to the
procedure laid down in s. 164, CrPC is not admissible as a
confessional statement - On facts, the statement in question
was neither recorded by a Judicial Magistrate nor fulfilled
procedural requirements, including that of a certificate to be
H 356
S. ARUL RAJA v. STATE OF TAMIL NADU 357
appended by the Magistrate - Besides, it is doubtful as to A
whether the statement was made voluntarily - Hence, the
statement is not admissible as a confession under s. 164
CrPC - Code of Criminal Procedure, 1973 - s. 164.
Extra-judicial confession - Admissibility of - Rules of 8
caution before accepting an extra-judicial confession -
Discussed.
Evidence Act, 1872:
s.32 - Dying declaration - Admissibility of- Held: When C
a person who has made a statement perhaps in expectation
of death, is not dead, it is not a dying declaration and is not
admissible uls. 32.
s.10 - Post-arrest statement - Held: Does not fall within
0
the ambit of s. 10.
The accused-appellant and PW8's father were
running their respective educational institutions in the
same area, and their relations were allegedly strained in
view of the cancellation of the affiliation of appellant's E
college to Anna University, purportedly at the instance of
PW8's father; and subsequent exodus of students from
appellant's college to the college of PW8's father.
According to the prosecution, in view of the said
animosity, the appellant hatched a criminal conspiracy F
with the other accused which led to the death of PW8's
father.
The trial court acquitted the appellant. The High
Court, however, relying upon the post-arrest statement
(Ex. P22) made by A1, co-accused, in hospital that he had G
been engaged as a contract killer, which was recorded
by the Executive Magistrate (PW-46) as a dying
declaration; and the theory of motive as projected by the
prosecution i.e. the alleged animosity between the
H
358 SUPREME COURT REPORTS [201 OJ 9 S.C.R.
A deceased and the appellant, set aside the acquittal of the
appellant and convicted him u/ s.302 IPC r/w s.120-8 IPC
and also u/s.307 IPC r/w s.120-8 IPC.
In the instant appeals, the questions which thus fell
8 for consideration were; 1) whether there existed a motive
for the appellant to murder PW8's father; 2) whether the
appellant conspired with the other accused to commit the
crime; and 3) whether A 1's statement could constitute a
valid dying declaration or a confession or could constitute
C an evidence in any manner so as to be used to implicate
the appellant for murder.
Allowing the appeals, the Court
HELD:1.1. The alleged motive is claimed to have been
D evidenced by threats from the appellant. PW8 has testified
to a conversation with the appellant wherein he spoke of
"dire consequences" for having the affiliation of Anna
University removed from his college. However, according
to PW 38 (the Chief Superintendent of Anna University),
E the cancellation of affiliation was done on the basis of
irregularities in the appellant's college. Moreover, the
appellant had obtained a stay from Court on Anna
University's order. Seen in this light, there does not
appear to be any role of the deceased in the act and
hence, the argument that the cancellation of affiliation
F compelled the appellant to eliminate PWB's father does
not hold merit. [Paras 17, 18] [371-A-C]
1.2. As far as exodus of students from appellant's
college to deceased's college is concerned, the issue can
G be termed inconclusive at best. The cancellation of
affiliation had been done in August 2004, and new
registrations would have to be accepted only in the next
academic year beginning from May/June 2005. This is well
after the cancellation of affiliation, and hence the
H connection between these events and the escalation of
S. ARUL RAJA v. STATE OF TAMIL NADU 359
hostilities between the appellant and the deceased is not A
established. While it may be true that appellant had
grievances against the deceased, the chain of events
that is said to have driven the appellant to commit murder
do not provide a clear motive to substantiate the
argument of the respondent, or the decision of the High B
Court. [Paras 19, 20] [371-D-H]
2.1. To punish a person for criminal conspiracy
under Section 120-B of IPC, it is necessary to establish
that there was an agreement between the parties for
doing an unlawful Act. In the instant case, the
c
prosecution made reference to meetings allegedly held
between the appellant and two co-accused including A 1.
However, there is little evidence to prove the presence of
the appellant in both these meetings. The High Court
rightly noted that the prosecution could not make its case D
concerning the first meeting due to PW1 and PW2 turning
hostile. While the evidence of a hostile witness would not
be completely effaced, the same requires corroboration
and strict scrutiny. In this case, however, the prosecution
has not been able to adduce any material evidence that E
may corroborate the statements of PW1 and PW2. Hence,
the same is not admissible in this case. [Para 22] [372-D-
F]
2.2. As regards the second date of meeting that the F
prosecution had put forward for the formulation of a
conspiracy, on this date, A1 and another accused were
alleged to have met the appellant to plot the murder. In
this regard, the statements of PWs 4 and 5 were recorded
wherein they testified to hearing a conversation between
G
the said persons in the appellant's chamber regarding the
commission of the crime. However, since both witnesses
subsequently turned hostile, their statements do not
inspire confidence and hence this story is not
substantiated. [Para 23] [372-G-H; 373-A]
H
360 SUPREME COURT REPORTS (2010) 9 S.C.R.
A 2.3. As regards the statement of PW3, a bystander,
that he had witnessed A1 and another accused entering
the premises of the appellant's college on a motorcycle
a week before the murder, the High Court while relying
upon the said statement as a vital piece of evidence
B affirming the existence of a conspiracy between the
appellant and the co-accused, glossed over important
facts. The prosecution has also relied on a number of
other meetings to hold up the charge of conspiracy.
However, the evidence as regards these meetings make
C no reference to the appellant and hence no reference is
to be made to the same at this stage. [Paras 25, 26] [373-
F-H; A-BJ
2.4. In the present case, the events, cited by the
D prosecution, even when taken together, cannot prove a
charge of conspiracy so far as tti-e appellant is
concerned. The mere circumstantial evidence to prove
the involvement of the appellant is not sufficient to meet
the requirements of criminal conspiracy under Section
120-A of the IPC. A meeting of minds to form a criminal
E conspiracy has to be proved by placing substantive
evidence and the respondent has not adduced any
evidence which underlines the same. [Para 28] [375-C-D]
Vijayan v. State of Kera/a, 1999 (3) SCC 54; Bhagwan
F Singh v. State of Haryana (1976) 1 SCC 389 and State
through Superintendent of Police, CBI/SIT v. Nalini & Others,
(1999) 5 sec 253 - relied on.
3.1. Section 32 (1) of the Evidence Act, 1872 states
that a dying declaration is a relevant fact and, therefore,
G admissible in evidence. For a statement to be admissible
in evidence as a dying declaration, the person making the
statement should no longer be alive. If the person
eventually does not die after making the statement, then
the same cannot be treated as a dying declaration. [Paras
H 30, 31] [375-F-G; 376-B]
S. ARUL RAJA v. STATE OF TAMIL NADU 361
3.2. In the present case, Ex. P22 (the post-arrest A
statement made by A1) cannot be said to be a dying
declaration on account of various reasons, the most
important of which is that A1 did not die after making the
alleged dying declaration. When a person who has made
a statement perhaps in expectation of death, is not dead, B
it is not a dying declaration and is not admissible under
Section 32 of the Evidence Act. Furthermore, there is no
reason forthcoming as to why A1 was brought to the
hospital. There is nothing on record to show that A1 had
consumed poison or that he was in any manner ill or c
injured which necessitated his admission to the hospital
for treatment. In this regard, it is noticed from the
testimony of PW-46 that he has clearly deposed that when
he went to the said hospital, he saw that A1 was sitting
"hale and healthy". He further stated that he had
0
recorded the alleged dying declaration of A1 because in
the requisition letter it was mentioned that both A1 and
deceased 'B' had consumed poison. PW-46 also stated
that A1 was under treatment and in a frightened mood.
He has categorically stated in his testimony that he did
not ascertain from A1 as to whether he had consumed E
poison or as to the nature of the same. He further states
in his testimony that he did not ascertain from A1 as to
what made him consume poison and whether he had
consumed it himself or if somebody had administered the
same. This is a major lapse and casts a serious doubt on F
the credibility of the statement. [Paras 34, 35, 36] [377-F-
H; 378-A-E]
3.3. Despite the fact that A1 was admitted to the ICU
ward, he was discharged from the hospital and was G
produced before the Magistrate on the same day. From
this, two inferences may be drawn. One is that A1 was not
actually ill so as to warrant admission to the ICU and that
was done only with a view to obtaining a statement which
could subsequently be used against him. Alternatively, H
362 SUPREME COURT REPORTS (2010] 9 S.C.R.
A the second is that A1 was actually ill and his serious
condition necessitated admission to the ICU ward. But if
his condition was so serious, then one fails to
understand why he was discharged from the hospital on
the very same day. That does not seem to be a reasonable
B course and raises serious doubts. [Para 37] [378-F-H;
379-A]
3.4. One cannot appreciate the need for PW-46
having recorded the dying declaration of A1 when A1 was
C sitting "hale and healthy", as deposed by PW-46 himself.
No doctor treating A1 was examined as to prove and
establish that A1 was seriously ill and the line of treatment
given to him in the hospital. [Para 38] [379-B]
3.5. On a perusal of Ex. P-22 (the statement made by
D A1) as a whole, it cannot be said to be a statement
admissible in evidence as a dying declaration. There is
nothing in the alleged dying declaration to show wily A1
was brought to the hospital. Also, if it were recorded as
a dying declaration, it should have contained the
E circumstances that necessitated A 1's admission to the
hospital. Ex. P-22 lacks that important aspect and hence
it cannot be raised to the status of a dying declaration.
[Paras 39] [379-C-D]
Rattan Singh v. State of Himacha/ Pradesh, (1997) 4
F SCC 161 and Ramprasad v. State of Maharashtra, (1999) 5
sec 30 - relied on.
4. As regards the issue as to whether the statement
made by A1 though inadmissible as a dying declaration,
G could be admissible as a confession, it is clear that
Section 164 CrPC provides guidelines to be followed for
taking the statement of accused as a confession. The one
essential condition is that it must be made voluntarily and
not under threat or coercion. A statement that does not
H
S. ARUL RAJA v. STATE OF TAMIL NADU 363
prescribe to the procedure laid down in Section 164, A
CrPC is not admissible as a confessional statement. In
the instant case, the statement has neither been recorded
by a Judicial Magistrate nor has it fulfilled procedural
requirements, including that of a certificate to be
appended by the Magistrate. Hence, the statement is not B
admissible against the appellant as a confession under
Section 164 CrPC. Besides, in the present case, as
pleaded by the appellant, A1 gave a representation with
a request to the Judicial Magistrate Court and also
Magistrate Court stating that his confessional statement c
which implicated the appellant was not voluntary and that
he was forced to give the same by the police. Therefore,
there is a doubt as to whether implication of the appellant
by A1, if any, was made voluntarily. Viewed from this angle
and under any circumstance, the said statement cannot o
be regarded as a confession as envisaged under Section
164 Cr. P.C. to implicate the appellant. [Paras 43, 45, 46]
[380-C; 381-G-H; 382-A-C]
Aloke Nath Dutta & Ors. v. State of West Bengal (2007)'
12 SCC 230; Babubhai Udesinh Parmar v. State of Gujarat E
(2006) 12 SCC 268; and State of UP v. Singhara Singh,
(1964) 4 SCR 485 - relied on.
Sharawan Bhadaji Bhirad & Others v. State of
Maharashtra (2002) 10 SCC 56 - referred to. F
5.1. As regards the issue that whether the statement
made by A1 may be con.;;idered as an extra-judicial
confession, the concept of an extra-judicial confession
is primarily a judicial creation, and must be used with
G
restraint. Such a confession must be used only in limited
circumstances, and should also be corroborated by way
of abundant caution. An extra-judicial confession while
in police custody cannot be allowed. Moreover, when
there is a case hanging on an extra-judicial confession,
H
364 SUPREME COURT REPORTS [2010] 9 S.C.R.
A corroborated only by circumstantial evidence, then the
Courts must treat the same with utmost caution. [Para 47]
[382-D-F]
5.2. Rules of caution must be applied before
accepting an extra-judicial confession. Before the Court
8
proceeds to act on the basis of an extra-judicial
confession, the circumstances under which it is made,
the manner in which it is made and the persons to whom
it is made must be considered along with the two rules
of caution. First, whether the evidence of confession is
C reliable and second, whether it finds corroboration. [Para
54] [384-G-H; 385-A-B]
5.3. In the present case, the purported dying
declaration was recorded in the hospital. A1 was
D discharged from the hospital on the same day that his
statement was recorded. That A1 later made a
representation stating that the confession was not given
voluntarily, raises doubts as to its truthfulness. Under
these circumstances, authenticity of A1 's confession is
E not free from doubts. A1 being the co-accused, it is not
proper to convict the appellant solely on the basis of the
confession of A1 - more so, when the confession is not
corroborated by any evidence. Such corroborating
evidence that may confirm the appellant's involvement in
F the murder is totally missing in this case. [Para 55] [385-
C-E]
Ram Singh v. Sonia & Others, (2007) 3 SCC 1; Ediga
Anamma v. State of AP, (1974) 4 SCC 443; State of
Maharashtra v. Kondiba Tukaram Shirke, (1976) 3 SCC 775;
. G Maghar Singh v. State of Punjab (1975) 4 SCC 234; State
of AP. v. S. Swarnalatha & Others, (2009) 8 SCC 383;
Pakkirisamy v. State of TN. (1997) 8 SCC 158; State of AP
v. Kanda Gopaludu (2005) 13 SCC 116; Kavita v. State of
TN (1998) 6 sec 108 - relied on.
H
S. ARUL RAJA v. STATE OF TAMIL NADU 365
6. Furthermore, the statement made by A1 is A
insufficient to implicate the appellant in the said
conspiracy as the same is hit by Section 10 of the
Evidence Act, which refers to the statement of a fellow
conspirator that pertains to the common intention behind
the act, and such a statement can be used against the B
other conspirators. In the present case; the prosecution
has failed to substantiate the allegation of conspiracy
against the appellant and therefore, he could not be
under any circumstance be called a co-conspirator so as
to attract the provisions of Section 10 of the Evidence c
Act. Further, a post-arrest statement would not fall within
the ambit of Section 10 of the Evidence Act. Therefore,
the statement made by A1 in police custody cannot be
used to implicate the appellant in the conspiracy to
murder. [Para 56] [385-F-H; 386-A] 0
Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334
and State of Gujarat v. Mohd. Atik & Others (1998) 4 SCC 351
- relied on.
7. Viewed from any angle, the evidence adduced by E
the prosecution against the appellant is not sufficient to
justify his conviction either under Section 302 or Section
307 or under Section 120-B IPC. The decision of the High
Court is reversed and the appellant stands acquitted of
the charges against him purely and simply on benefit of F
doubt. [Paras 57, 58] [386-B-C]
Case Law Reference:
1999 (3) sec 54 relied on Para 21
G
(1976)" 1 sec 389 relied on Para 22
(1999) 5 sec 253 relied on Para 28
(1997) 4 sec 161 relied on Para 32
H
366 SUPREME COURT REPORTS [201 O] 9 S.C.R.
A (1999) 5 sec 30 relied on Para 33
(2002) 1o sec 56 referred to Para 40
(2001) 12 sec 230 relied on Para 43
B (2006) 12 sec 268 relied on Para 44
(1964) 4 SCR 485 relied on Para 45
(2001) 3 sec 1 relied on Para47
(1974) 4 sec 443 relied on Para 47
c
(1976) 3 sec 115 relied on Para 47
(1975) 4 sec 234 relied on Para 48
(2009) 8 sec 383 relied on Para 50
D (1997) 8 sec 158 relied on Para 51
(2005) 13 sec 116 relied on Para 52
(1998) 6 sec 108 relied on Para 53
E (2002) 1 sec 334 relied on Para 56
(1998) 4 sec 351 relied on Para 56
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1494-95 of 2009.
F
From the Judgment & Order dated 05.08.2009 of the High
Court of Madras at Madurai Bench in Crl. A. No. 270 of 2008
& Crl. R.C. No. 648 of 2008.
Uday U. Lalit, R.S. Sodhi, P.S. Narasimha, M. Gireesh
G Kumar, K. Parameshwar, Manisha Bhandari, Vijay Kumar for
the Appellant.
N. Natarajan, Anand Sasidharan, Promila, S. Thananjayan
for the Respondent.
H
S. ARUL RAJA v. STATE OF TAMIL NADU 367
The Judgment of the Court was delivered by A
DR. MUKUNDAKAM SHARMA, J. 1. These appeals are
directed against the judgment of the Madurai Bench of the
Madras High Court dated 05.08.2009. By the said judgment,
the High Court reversed the judgment of acquittal of the B
appellant passed by the Principal Sessions Judge, Tirunelveli,
and convicted the appellant, Arul Raja under Section 302 read
with Section 120-B of the Indian Penal Code, 1860 ("!PC"), and
sentenced him to undergo life imprisonment and to pay a fine
of .5000/- in default to suffer three months' rigorous C
imprisonment. He was also convicted under Section 307, read
with Section 120-B of. the !PC and sentenced to Rigorous
Imprisonment for a period of three years.
2. The appellant was convicted for murder, attempted
murder, and criminal conspiracy to commit the aforesaid D
crimes in connection with the death of Sri Aladi Aruna, a former
law minister of Tamil Nadu, which occurred on 31.12.2004. The
facts in this regard go back to the alleged animosity between
the appellant and Aladi Aruna over the years. The Appellant was
running several educational institutions in the District of E
Tirunelveli and Kanyakumari, and had also started an
Engineering College at Athiyuthu in 2000. Subsequently, Aladi
Aruna himself started an Engineering College, proximate to the
one started by the appellant. The relations between both the
appellant and Aladi Aruna, who were on good terms until then, F
were said to have deteriorated after the latter's direct
involvement in the business sphere of the appellant.
3. Furthermore, in the same month in which Anna
University granted affiliation to the Engineering College run by
Aladi Aruna, it also cancelled the affiliation already accorded G
to the appellant's College. Consequently, many students
allegedly left the appellant's College to join the institution run
by Aladi Aruna. This situation was also alleged to be
H
368 SUPREME COURT REPORTS [2010] 9 S.C.R.
A responsible for increasing the existing tension between both the
appellant and Aladi Aruna.
4. Appellant has been accused of hatching a conspiracy
wherein he engaged Accused No. 1, Veldurai (hereinafter
B referred to as "A 1"), and deceased accused, Benny, to murder
Aladi Aruna.
5. In pursuance of this alleged conspiracy, Aladi Aruna was
murdered on 31.12.2004, by accused persons Nos. 1 to 4,
along with deceased accused Benny and Auto Bhaskar, who
C formed into two groups to commit the act. All of them were
subsequently arrested, with the exception of A 1 and deceased
accused Benny. In the course of the investigation, it became
known that A 1 and Benny had fled to Ahmedabad in Gujarat.
0 6. On the night of 25.1.2005, a team comprising the
Gujarat and Tamil Nadu Po1ice entered the flat that housed
Veldurai and Benny, and attempted to apprehend them. In the
melee that ensued, A 1 was arrested, while Benny consumed
cyanide. Both were taken immediately to the L.G hospital
E nearby, where despite being administered treatment, Benny
died.
7. In the morning of 26.12.2005, the Executive Magistrate
of Ahmedabad City, Mr. Solanki, went to L.G hospital upon
receiving a written requisition to record the dying declaration
F of A 1. In his statement made to the Executive Magistrate, A 1
implicated the appellant in the crime, and declared that he was
given a contract killing by one S.P. Raja for an agreed
remuneration of Rs. 5,00,000/- out of which he was paid an
advance of Rs. 20,000/-. The Executive Magistrate Mr. Solanki
G was examined as PW-30 and testified before the Principal
Sessions Court at Tirunelveli as to the same.
8. The Executive Magistrate, who took the dying
declaration from A 1 has also noted that he was "hale and
H
S. ARUL RAJA v. STATE OF TAMIL NADU 369
[DR. MUKUNDAKAM SHARMA, J.]
healthy" while his statements were being recorded. A1, it is A
significant to note, was discharged from LG. Hospital on the
same day, and produced before the Ahmedabad Magistrate
for issue of transit warrant to Tamil Nadu.
----.
9. The Madras High Court has convicted the appellant
..
B
primarily on the basis of this declaration that implicated him in
a conspiracy to murder Arul Raja. The High Court also took into
account circumstantial evidence, such as the motive behind the
act, as well as the statement of a bystander (PW3) who
witnessed A 1 and deceased accused Benny entering the
premises of the Appellant's college on a motorcycle a week C
before the murder.
10. Being aggrieved by the· aforesaid decision, the
appellant ,has filed the present Special Leave Petition before
this Court. We have heard the learned counsel appearing for D
the parties at length.
11. Counsel for the appellant argued that the statement of
A 1 is not a dying declaration within the meaning of Section
32(1) of the Evidence Act, 1861, since the very fact of his E
surviving negates the requirements to be complied in the said
provision. Further, Counsel also argued that this statement is
hit by Section 26 of the Evidence Act, 1872, as it was not
recorded in the manner prescribed by Section 164 of the Code
.. of Criminal Procedure, 1973.
F
1 12. Counsel for the appellant also contended that the
requirements of Section 10 of the Evidence Act mandate that
such a statement be made prior to the cessation of the
common intention of the conspiracy. Hence, it was argued that
the statement of A1 made after the murder of Aladi Aruna may G
not be used to implicate the Appellant in a conspiracy. In
addition, Counsel has also debunked the testimony of PW3 as
inadequate and insufficient to prove charges of conspiracy
against the Appellant.
H
370 SUPREME COURT REPORTS (2010) 9 S.C.R.
A 13. In its reply, the Counsel for the State of Tamil Nadu
urged this Court to weigh the collective evidence presented,
which, it was argued, implicates the appellant. In addition to the
motive to eUffiinate a rival, Counsel also pointed to the
telephone conversation between the appellant and Aladi
8 Aruna's son (PW8), which highlighted the animosity between
the former and the deceased.
14. Counsel for the State also submitted that the statement
of A 1 is not tainted in any manner and hence, is admissible as
evidence. In this regard, Counsel pointed out that there exists
C nothing to suggest any mala fide involvement between the
Gujarat and Tamil Nadu Police to extract the confession from
Veldurai. Counsel also contended that the statement was
made in connection with the ongoing investigation surrounding
the suicide of deceased accused Benny, rather than as a
D purported dying declaration.
15. In light of the aforesaid arguments, it falls upon us to
consider the matter in terms of three issues. Firstly, whether
there existed a motive for the appellant to murder Aladi Aruna;
E Secondly, whether the appellant conspired with the other
accused to commit the crime; And thirdly, whether A1's
statement could constitute a valid dying declaration or a
confession or could constitute an evidence in any manner so
as to be used to implicate the appellant for murder.
F 16. It was contended by the Respondent that the murder
of Aladi Aruna was motivated by the animosity between the
latter and the appellant. The Respondent had seized on the
possible existence of a rivalry between Arul Raja and Aladi
Aruna with regard to the running oftheir respective educational
G institutions in the same area. The cancellation of affiliation of
appellant's college to Anna University has been alleged to be
the catalyst that led the appellant to murder Aladi Aruna. The
High Court also held that the appellant believed this cancellation
of affiliation to be done at the instance of Aladi Aruna.
H
S. ARUL RAJA v. STATE OF TAMIL NADU 371
[DR. MUKUNDAKAM SHARMA, J.]
17. The aforesaid motive is claimed to have been A
evidenced by threats from the appellant. PW8 (Son of Aladi
Aruna) has testified to a conversation with the appellant wherein
he spoke of "dire consequences" for having the affiliation of
Anna University removed from his college.
B
18. However, according to PW 38 (the Chief
Superinterident of Anna University), the cancellation of affiliation
was done on the basis of irregularities in the appellant's college.
Pursuant to an application submitted by the appellant, the
Madras High Court had also issued a stay on Anna University's C
order. Se~.n in this light, there does not appear to be any role
of the deceased in the act and hence, the argument that the
cancellation of affiliation compelled the appellant to eliminate
Aladi Aruna does not hold merit.
19. As far as exodus of students from Arul Raja's college D
to Aladi Aruna's is concerned, the issue can be termed
inconclusive at best. The cancellation of affiliation had been
done in August 2004, and new registrations would have to be
accepted only in the next academic year beginning from May/
June 2005. PW 21 (a student who used to study in the E
appellant's Engineering College), who has testified that nearly
30 students left from the appellant's college to Aladi Aruna's,
completed his 12th Grade in the academic year 2004-2005 and .
joined thereafter. This is well after the cancellation of affiliation,
and hence the testimony fails to establish the connection F
between these events and the escalation of hostilities between
the ·appellant and Aladi Aruna.
20. To the Respondent, these events added together
provide a vital link that illuminates the actions of Arul Raja and
his alleged co-conspirators. However, we find su~h a·n ·argument G
to be unconvincing. While it may be true that appellant had
grievances against Aladi Aruna. the chain of events that is said
to have driven the appellant to commit murder do not provide
a clear motive to substantiate the argument of the Respondent,
or the ~ecision of the High Court. H
I
I
372 SUPREME COURT REPORTS [2010] 9 S.C.R.
A 21. In pursuance of this motive, it has been sought to be
established by t_he Respondent that the appellant conspired with
the other accused to murder Aladi Aruna. This Court in Vijayan
v. State of Kera/a reported in 1999 (3) SCC 54 has held that
to punish a person for criminal conspiracy under Section 120-
B B of IPC, it is necessary to establish that there was an
agreement between the parties for doing an unlawful Act.
Therefore, it is imperative to see whether there had been any
such agreement between the Appellant and co-accused to
murder Aladi Aruna, which could be established by producing
c reliable evidence.
22. To this effect, reference was made to meetings
allegedly held between the appellant and two of the co-
accused, namely, A1 and deceased accused Benny. While the
first meeting between the said persons was purported to be
D held on 14.9.2004, the second one is claimed to have been
held on 24.12.2004. However, we find that there is little
evidence to prove the presence of the appellant in both these
meetings. The High Court has rightly noted that the prosecution
could not make its case concerning the meeting on 14.9.2004
E due to PW1 and PW2 turning hostile. As has been held by this
Court in Bhagwan Singh v. State of Haryana (1976) 1 SCC
389 and other subsequent cases, while the evidence of a hostile
witness would not be completely effaced, the same requires
corroboration and strict scrutiny. In this case, however, the
F prosecution has not been able to adduce any material evidence
that may corroborate the statements of PW1 and PW2. Hence,
the same is not admissible in this case.
23. The second date of meeting that the prosecution had
G put forward for the formulation of a conspiracy was 24.12.2004.
On this date, A 1 and deceased accused Benny said to have
met the appellant to plot the murder of Aladi Aruna. In this
regard, the statements of PWs 4 and 5 were recorded wherein
they testified to hearing a conversation between the said
persons in the appellant's chamber regarding the commission
H
S. ARUL RAJA v. STATE OF TAMIL NADU 373
[DR. MUKUNDAKAM SHARMA, J.]
of the crime. However, since both witnesses have subsequently A
turned hostile, their statements do not inspire confidence and
hence this story is not substantiated.
24. On the other hand, the High Court has relied on the
evidence provided by PW 3, Thenraj, who has testified to have B
seen both A 1 and Benny drive into the college premises of the
appellant. As the High Court recounted in the following words:-
"82 .... PW3 has stated that on 24.12.2004, he and his
friend Karuppasamy were proceeding to the Poolangulam
village and at about 11.00 A.M. when they were nearing C
S.A. Raja's college, they felt thirsty and they stopped the
vehicle in front of weighing bridge ... and were taking tender
coconut. At that time, PW3 saw Accused No.' 1- Veldurai
and another person [deceased accused-Benny] came in
a motorcycle from east to west and both entered into the D
Engineering college of S.A. Raja and returned from the
college some 15 minutes thereafter."
At the time, PW3 could not identify the pillion rider but later
identified him as the deceased accused Benny after being
E
shown his photograph.
25. Whereas the High Court noted this statement as a vital
piece of evidence affirming the existence of a conspiracy
between the appellant and the co-accused, we are compelled
to disagree. In relying upon the statement of PW3, the High F
Court has glossed over important facts. From the examination
of witnesses it is not clear whether Arul Raja was at all present
at this meeting and the same could not be substantiated by any
cogent and reliable evidence. Since the purpose of the meeting
and the presence of the alleged participants cannot be G
confirmed, this testimony is too weak to support any conclusion
in favour of the Respondent.
'
26. The prosecution has also relied on meetings that may
have taken place on 28.12.2004 to 30.12.2004 to hold up the H
374 SUPREME COURT REPORTS (2010) 9 S.C.R.
A charge of conspiracy. Accused Nos. 1 to 5 and deceased
accused Auto Bhaskar were said to be in Sundara Nilayam,
Courtallam to work out a plan to murder Aladi Aruna. However,
the evidence as regards these meetings make no reference
to the appellant and hence no reference is to be made to the
B same at this stage.
27. The High Court has strung the following pieces of
substantiated events together to include the appellant within the
ambit of the conspiracy:-
C "• On 24.12.2004, Accused No. 1 and deceased accused-
Benny had gone into the college of Accused No. 7 and
returned after 15 minutes.
• Presence of Accused No. 1, Accused No. 4 and
0 deceased accused-Benny on the southern side of place
of occurrence on 31.12.2004.
• Accused No. 1 and deceased accused-Benny flew to
Gujarat and were apprehended together.
E • Accused Benny consumed cyanide poison immediately
after the arrest and accused-Auto Baskar consumed
cyanide poison after arrest while in transit."
28. We find that these events, even when taken together,
F cannot prove a charge of conspiracy so far the appellant is
concerned. In State through Superintendent of Police, CBI/SIT
V. Nalini & Others, reported in (1999) 5 sec 253, it was held
that: -
"583. ··········
G
(1) ............. Offence of criminal conspiracy is an exception
to the general law where intent alone does not constitute
crime. It is intention to commit crime and joining hands with
persons having the same intention. Not only the intention
H but there has to be agreement to carry out the object of
S. ARUL RAJA v. STATE OF TAMIL NADU 375
[DR. MUKUNDAKAM SHARMA, J.)
the intention, which is an offence. The question for A
consideration in a case is did all the accused have the
intention and did they agree that the crime be committed.
It would not be enough for the offence of conspiracy when
some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence .be B
committed ................. "
In this instance, mere circumstantial evidence to prove the
involvement of the appellant is not sufficient to meet the
requirements of criminal conspiracy under Section 120-A of the C
IPC. A meeting of minds to form a criminal conspiracy has to
be proved by placing substantive evidence and the
Respondent has not adduced any evidence which underlines
the same. The issue of whether A 1's statement, recorded after
his arrest, may be used to implicate the appellant in the,said
conspiracy shall be dealt with subsequently. D
29. We must now consider whether the statement made
by A 1 and recorded by the Executive Magistrate of Ahmedabad
City in the morning of 26.12.2005, which is proved as Ex. P22,
may be used to implicate the Appellant in this crime. The E
Respondent, and the High Court in its decision, both rely on
A 1's statement made while he was in L.G Hospital, subsequent
to his arrest. This statement was recorded as A 1's dying
declaration. Therefore, the legal basis to admit the statement
as a dying declaration needs to be examined. F
30. Section 32 (1) of the Evidence Act, 1872 states that a
dying declaration is a relevant fact and therefore admissible in
evidence. Section 32 (1) categorically states that a statement
made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his death G
is a relevant fact and admissible in evidence in cases in which
the cause of that person's death comes into question. It further
mentions that such a statement will be admissible in evidence
when the person making it is dead or cannot be found or has
become incapable of giving evidence or whose attendance H.
376 SUPREME COURT REPORTS [2010) 9 S.C.R.
A cannot be procured without an amount of delay or expense.
31. It is trite law that for a statement to be admissible in
evidence as a dying declaration, the person making the
statement should no longer be alive. If the person eventually
does not die after making the statement, then the same cannot
8
be treated as a dying declaration.
32. The cited authority of the High Court in regards to the
admissibility of a dying declaration, Rattan Singh v. State of
Himachal Pradesh reported in (1997) 4 SCC 161, in fact
C confirms the necessary condition of death failing which this
statement will be inadmissible under the dying declaration rule.
33. Other case law also confirms this necessary condition.
I
In Ramprasad v. State of Maharashtra, reported at (1999) 5
D SCC 30, this Court held:-
"13. Ext. 52 is the dying declaration made by PW 1 Ramu
Somani, which was recorded by a Judicial Magistrate (PW
16). Both the trial court and the High Court counted Ext.
52 as a piece of evidence. Shri R.S. Lambat, learned
E counsel contended that both the courts have gone wrong
in treating Ext. 52 as evidence because the person who
gave that statement is not dead and hence it could not fall
under Section 32 of the Evidence Act, 1872. Counsel
further contended that even otherwise Ext. 52 could only
F have been used to contradict PW 1 as provided in Section
162 of the Code of Criminal Procedure (for short "the
Code") as it was a statement recorded during
investigation.
14. We are in full agreement with the contention of the
G
learned counsel that Ext. 52 cannot be used as evidence
under Section 32 of the Evidence Act though it was
recorded as a dying declaration. At the time when PW 1
gave the statement he would have been under
expectation of death but that is not sufficient to wiggle it
H
S. ARUL RAJA v. STATE OF TAMIL NAbU 377
[DR. MUKUNDAKAM SHARMA, J.] 1
into the cassette of Section 32. As long as \the maker of A
the statement is alive it would remain only :in the realm
of a statement recorded during investigation.
15. Be that as it may, the question is whether the Court
could treat it as an item of evidence for any: purpose.
Section 157 of the Evidence Act permits prqiof of any
B
former statement made by a witness relating to. the same
fact before "any authority legally competent to investigate
the fact" but its use is limited to corroboration of the
testimony of such a witness. Though a police officer is
legally competent to investigate, any statement made to C
him during such an investigation cannot be used to
corroborate the testimony of a witness because of the clear
interdict contained in Section 162 of the Code. But a
statement made to a Magistrate is not affected by the
prohibition conteiined
.
in the said section.
I
A Magistrate can D
record the statement of a person as provided in Section
164 of the Code and such a s.tatement would either be
elevated to the $tatus of Section 32 if the maker of the
statement subsequently dies pr it would remain within the
realm of what it was originallY. A statement recorded by a E
Magistrate under Section 164 becomes usable to
corroborate the witness
I
as r wided in Section 157,' of
.
the
Evidence Act or to \contradict him as provided in Section
155 thereof." ,
F
34. In the present case, on 26.01.2005 at about 7:15 a.m.,
PW-46 (Executive Magistrate/Deputy Tehsildar). on receiving
a written requisition from L.G. Hospital for recording the dying
declaration of A 1 who was admitted to the ICU Ward of the
said hospital, went there and recorded the alleged dying
declaration which is Ex. P22. Ex. P22 cannot be said to be a G
dying declaration and that is so on account o_f various reasons,
which may be elaborated herein.
35. The most important of them all is that A 1 did not die
after making the alleged dying declaration. From the decision H
378 SUPREME COURT REPORTS (2010] 9 S.C.R.
A of this Court in the aforementioned case, it is clear that when
a person who has made a statement perhaps in expectation
of death, is not dead, it is not a dying declaration and is not
admissible under Section 32 of the Evidence Act.
36. Furthermore, there is no reason forthcoming as to why
B A 1 was brought to the hospital along with deceased accused
Benny. There is nothing on record to show that A 1 also had
consumed poison or that he was in any manner ill or injured
which necessitated his admission to the hospital for treatment.
In this regard, we may notice the testimony of PW-46. PW-46
C has clearly deposed that when he went to the said hospital, he
saw that A 1 was sitting "hale and healthy". He further stated that
he had recorded the alleged dying declaration of A 1 because
in the requisition letter it was mentioned that both A 1 and
deceased Benny had consumed poison. PW-46 also stated that
D A 1 was under treatment and in a frightened mood. He has
categorically stated in his testimony that he did not ascertain
from A 1 as to whether he had consumed poison or as to the
nature of the same. He further states in his testimony that he
did not ascertain from A 1 as to what made him consume
E poison and whether he had consumed it himself or if somebody
had administered the same. This is a major lapse and casts a
serious doubt on the credibility of the statement.
37. It must also be noted that despite the fact that A 1 was
F admitted to the ICU ward, he was discharged from the hospital
and was produced before the Magistrate, Ahmedabad at 7:30
p.m on the same day, i.e., 26.01.2005. From this. two inferences
may be drawn. One is that A 1 was not actually ill so as to
warrant admission to the ICU and that was done only with a
view to obtaining a statement which could subsequently be
G used against him. Alternatively. the second is that A 1 was
actually ill and his serious condition necessitated admission to
the ICU ward. But if his condition was so serious, then we fail
to understand why he was dischargeC: from the hospital on the
H
S. ARUL RAJA v. STATE OF TAMIL NADU 379
[DR. MUKUNDAKAM SHARMA, J.]
very same day. That does not seem to us to be a reasonable A
course and raises serious doubts in our mind.
38. We cannot appreciate the need for PW-46 having
recorded the dying declaration of A 1 when A 1 was sitting "hale
and healthy", as deposed by PW-46 himself. No doctor treating 8
A 1 was examined as to prove and establish that A 1 was
seriously ill and the line of treatment given to him in the hospital.
39. On a perusal of Ex. P-22 as a whole and Question No.
11 therein in particular it cannot be said to be a statement
admissible in evidence as a dying declaration. In response to C
Q.11, A 1 replied that "in Ahmedabad Vatva Dr. Maya Tawer's
Home Nr. Cadila Bridge dated 26.01.2005 at 1:3g, in night
police caught and brought". There is nothing in the alleged dying
declaration to show why A 1 was brought to the hospital. Also,
if it were recorded as a dying declaration, it should have D
contained the circumstances that necessitated A 1's admission
to the hospital. Ex. P-22 lacks that important aspect and hence
it cannot be raised to the status of a dying declaration. PW-46
has stated in his testimony that he did not even make an attempt
to ascertain. who or what was responsible for A 1's condition and E
why he consumed poison. Rather it seems to us that
ascertaining the cause of his conrlition should have been the
prime concern for PW-46 who wer1~ to the hospital to record the
dying declaration. In this regard, it is also pertinent to note that
no doctor from LG. Hospitals who was on duty on the said day F
has been examined.
40. This Court in the case of Sharawan Bhadaji Bhirad &
Others V. State of Maharashtra reported in (2002) 10 sec 56
held that when a statement is recorded as a dying declaration
and the victim survives, such statement need not stand the strict G
scrutiny of a dying declaration, but may be treated as a
statement under Section 164, Cr.P.C.
41. Therefore, with the said statement inadmissible as a
dying declaration, the question that arises is: whether the H
380 SURREME COURT REPORTS [2010] 9 S.C.R.
A statement could be admissible either as a confession or as an
extra-judicial confession?
42. The events surrounding the confession made by A1
while in hospital, and more significantly, in police custody, are
too ambiguous to support conviction of the appellant.
8
43. Section 164 Cr.P.C. provides guidelines to be followed
for taking the statement of accused as a confession. The one
essential condition is that it must be made voluntarily and not
under threat or coercion. This Court in Aloke Nath Dutta & Ors.
C v. State of West Bengal reported in (2007) 12 SCC 230 held
as under: -
"87. Confession ordinarily is admissible in evidence. It is
a relevant fact. It can be acted upon. Confession may under
D certain circumstances and subject to law laid down by the
superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of
the confession; (ii) truthfulness of the confession; (iii)
corroboration.
E
88. This Court in Shankaria v. State of Rajasthan stated
the law thus: (SCC p. 443, para 23)
"23. This confession was retracted by the appellant
F when he was examined at the trial under Section
311 CrPC on 14-6-1975. It is well settled that a
confession, if voluntarily and truthfully made, is an
efficacious proof of guilt. Therefore, when in a
capital case the prosecution demands a conviction
G of the accused, primarily on the basis of his
confession recorded under Section 164 CrPC, the
Court must apply a double test:
( 1) Whether the confession was perfectly voluntary?
H (2) If so, whether it is true and trustworthy?
S. ARUL RAJA v. STATE OF TAMIL NADU 381
[DR. MUKUNDAKAM SHARMA, J.]
Satisfaction of the first test is a sine qua non for its A
admissibility in evidence. If the confession appears
to the Court to have been caused by any
inducement, threat or promise such as is mentioned
in Section 24, Evidence Act, it must be excluded
and rejected brevi manu. In such a case, the B
question of proceeding further to apply the second
test, does not arise. If the first test is satisfied, the
Court must, before acting upon the confession
reach the finding that what is stated therein is true
and reliable. For judging the reliability of such a c
confession, or for that matter of any substantive
piece of evidence, there is no rigid canon of
universal application. Even so, one broad method
which may be useful in most cases for evaluating
a confession may be indicated. The Court should
D
carefully examine the confession and compare it
with the rest of the evidence, in the light of the
surrounding circumstances and probabilities of the
case. If on such examination and comparison, the
confession appears to be a probable catalogue of
events and naturally fits in with the rest of the
E
evidence and the surrounding circumstances, it may
be taken to have satisfied the second test." "
44. In Babubhai Udesinh Parmar v. State of Gujarat
reported in (2006) 12 SCC 268, this Court held that compliance F
with statutory provisions is mandatory which should be in letter
and spirit and not in a routine or mechanical manner.
45. As has been held by this Court in State of UP v.
Singhara Singh, reported in (1964) 4 SCR 485, a statement
G
that does not prescribe to the procedure laid down in Section
164 of the CrPC is not admissible as a confessional statement.
In this case, the statement has neither been recorded by a
Judicial Magistrate nor has it fulfilled procedural requirements,
including that of a certificate to be appended by the Magistrate.
H
382 SUPREME COURT REPORTS [2010] 9 S.C.R.
A Hence, the statement is not admissible against the appellant
as a confession under Section 164.
46. Besides, in the present case, as pleaded by the
appellant, A 1 gave a representation on 9.5.2005 with a request
to the Judicial Magistrate Court, Thenkasi and also Magistrate
8
Court at Senkottai stating that his confessional statement which
implicated the appellant was not voluntary and that he was
forced to give the same by the police. Therefore, there is a doubt
as to whether implication of the appellant by A 1, if any, was
made voluntarily. Viewed from this angle and under any
C circumstance, the said statement cannot be regarded as a
confession as envisaged under Section 164 Cr. P.C. to
implicate the appellant.
I
47. Therefore, the only issue that remains before us to be
D decided is whether the statement made by A 1 may be
considered as an extra-judicial confession. The concept of an
extra-judicial confession is primarily a judicial creation, and must
be used with restraint. Such a confession must be used only in
limited circumstances, and should also be corroborated by way
E of abundant caution. This Court in Ram Singh v. Sonia &
Others, reported in (2007) 3 SCC 1, has held that an extra-
judicial confession while in police custody cannot be allowed.
Moreover, when there is a case hanging on an extra-judicial
confession, corroborated only by circumstantial evidence, then
F the Courts must treat the same with utmost caution. This
principle has been affirmed by this Court in Ediga Anamma v.
State of AP, reported in (1974) 4 sec 443 and State of
Maharashtra v. Kondiba tukaram Shirke, reported in (1976)
3 SCC 775. It is significant to observe that A 1 has subsequently
G sought to retract this statement upon his arrival in Tamil Nadu.
48. In Maghar Singh v. State of Punjab reported in (1975)
4 sec 234, at page 236, while dealing with the question of
extra-judicial confession, this Court held as follows: -
H "5 ................ .If the Court believes the witnesses before
S. ARUL RAJA v. STATE OF TAMIL NADU 383
[DR. MUKUNDAKAM SHARMA, J.)
whom the confession is made and it is satisfied that the A
confession was voluntary, then in such a case conviction
can be founded on such evidence alone as was done in
Rao Shiv Bahadur Singh v. State of V.P. where their
Lordships of the Supreme Court rested the conviction of
the accused on the extra-judicial confession made by him B
before two independent witnesses, namely, Gadkari and
Perulakar. In the instant case also, after perusing the
evidence of PW 3 and PW 12 we are satisfied that they
are independent witnesses before whom both the
appellant and accused Surjit Kaur made confession of their c
guilt and this therefore forms a very important link in the
chain of circumstantial evidence. In our opinion the
argument proceeds on fundamentally wrong premises that
the extra-judicial confession is tainted evidence."
49. The evidentiary value of the extra-judicial confession D
must be judged in the facts and circumstances of each
individual case. Extra-judicial confession, if voluntarily made and
fully consistent with the circumstantial evidence, no doubt,
establishes the guilt of the accused. The extra-judicial
confession, if voluntary, can be relied upon by the court along E
with other evidence in convicting the accused. However, the
extra-judicial confession cannot ipso facto be termed to be
tainted. An extra-judicial confession, if made voluntarily and
proved, can be relied upon by the Courts.
F
50. This Court in State of A.P. v. S. Swarnalatha & Others
reported in (2009) 8 sec 383 held as follows: -
"16 .................. Extra-judicial confession as is well known
is a weak piece of evidence, although in given situations
reliance thereupon can be placed. (See State of U.P. v. G
M.K. Anthony, SCC p. 517, para 15 and State of
Rajasthan v. Kashi Ram, SCC p. 262, para 14.)"
51. In Pakkirisamy v. State of T.N. reported in (1997) 8
SCC 158, at page 162, this Court held: :· !., H
' I
384 SUPREME COURT REPORTS (2010] 9 S.C.R.
A "8 ................... .. It is well settled that it is a rule of caution
where the cowt would generally look for an independent
reliable corroboration before placing any reliance upon
such extra-judicial confession. It is no doubt true that extra-
judicial confession by its very nature is rather a weak type
B of evidence and it is for this reason that a duty is cast upon
the court to look for corroboration from other reliable
evidence on record. Such evidence requires appreciation
with a great deal of care and caution. If such an extra-
j ud icial confession is surrounded by suspicious
c circumstances, needless to state that its credibility
becomes doubtful and consequently it loses its
importance. The same principle has been enunciated by
this Court in Balwinder Singh v. State of Punjab.
"
D 52. This Court in State of A.P. v. Kanda Gopaludu
reported in (2005) 13 sec 116 held that extra-judicial
confession is admissible if it inspired confidence and made
voluntarily.
E 53. This Court in Kavita v. State of T.N. reported in (1998)
6 sec 108, at page 108 held as follows: -
"4. There is no doubt that convictions can be based on
extra-judicial confession but it is well settled that in the
very nature of things, it is a weak piece of evidence. It is
F to be proved just like any other fact and the value thereof
depends upon the veracity of the witness to whom it is
made. It may not be necessary that the actual words used
by the accused must be given by the witness but it is for
the coutt to decide on the acceptability of the evidence
G having regard tc the credibility of the witnesses."
54. In view of the above case law, it is made clear that an
extra-judicial confession is a weak piece of evidence. Though
it can be made the basis of conviction, due care and caution
H must be exercised by the Courts to ascertain the truthfulness
S. ARUL RAJA v. STATE OF TAMIL NADU 385
[DR. MUKUNDAKAM SHARMA, J.]
of the confession. Rules of caution must be applied before A
accepting an extra-judicial confession. Before the Court
proceeds to act on the basis of an extra-judicial confession, the
circumstances under which it is made, the manner in which it
is made and the persons to whom it is made must be
considered along with the two rules of caution. First, whether B
the evidence of confession is reliable and second, whether it
finds corroboration.
55. In the present case, the purported dying declaration was
recorded in the hospital. A 1 was discharged from the hospital C
on the same day that his statement was recorded. That A 1 later
made a representation stating that the confession was not given
voluntarily, raises doubts as to its truthfulness. Under these
circumstances, it is to be said that the authenticity of A 1's
confession is not free from doubts. In the present case, A 1
being the co-accused, it is not proper to convict the appellant D
solely on the basis of the confession of A 1 - more so, when
the confession is not corroborated by any evidence. Such ,
corroborating evidence that may confirm the appellant's
involvement in Aladi Aruna's murder is totally missing in this
case. E
56. Furthermore, we find that the statement made by A1
is insufficient to implicate the appellant in the said conspiracy
as the same is hit by Section 10 of the Evidence Act. Section
10 refers to the statement of a fellow conspirator that pertains F
to the common intention behind the act, and such a statement
can be used against the other conspirators. In the present case,
we have found and held that the prosecution has failed to
substantiate the allegation of conspiracy against the appellant
and therefore, he could not be under any circumstance be called
G
a co-conspirator so as to attract the provisions of Section 10
of the Evidence Act. Furthermore, this Court in Mohd. Khalid
v. State of West Bengal reported in (2002) 7 SCC 334 and
State of Gujarat v. Mohd. Atik & Others reported in ( 1998) 4
sec 351 has held that a post-arrest statement would not fall
H
386 SUPREME COURT REPORTS [2010] 9 S.C.R.
A within the ambit of Section 10 of the Evidence Act. Therefore,
the statement made by A 1 in police custody cannot be used
to implicate the appellant in the conspiracy to murder Aladi
Aruna.
57. Thus, viewed from any angle, the evidence adduced
8
by the prosecution against the appellant is not sufficient to justify
his conviction either under Section 302 or Section 307 or under
Section 120-B of the Indian Penal Code.
58. In view of the aforesaid conclusions, we find no merit
C in the arguments of the Respondent. These appeals are allowed
and the decision of the High Court is reversed and the appellant
stands acquitted of the charges against him purely and simply
on benefit of doubt. He shall be released forthwith from jail, if
not wanted in any other case.
B.B.B. Appeals allowed.
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