SAHADEVAN & ANR.versusSTATE OF TAMIL NADU

                         [2012] 4 S.C.R. 366


A                      SAHADEVAN & ANR.
                                  v.
                     STATE OF TAMIL NADU
                (Criminal Appeal No. 1405 of 2008)

                           MAY 08, 2012
B
        [A.K. PATNAIK AND SWATANTER KUMAR, JJ.]

       Penal Code, 1860 - s. 302 - Murder - Circumstantial
  evidence - Two witnesses had allegedly last seen the
C deceased with accused - Extra-judicial confession - Recovery
  of articles at the instance of accused - Conviction by courts
  below - Appeal by two of the three accused - Held:
  Prosecution failed to prove the case beyond reasonable doubt
  - There are contradictions in the statement of the witnesses
D - Confessional statements are not worth credence - Last seen
  theory not proved - Time of death of deceased not
  established - Motive not proved - Order of conviction is
  unsustainable - Benefit of the judgment extended to the non-
  appealing accused as he had been attributed the same role
E as the other two accused - Constitution of India, 1950 -
  Arlie/es 136, 142 and 21 - Administration of Justice.

        Evidence:

       Extra-judicial Confession - Evidentiary value - Held: It
F is a weak piece of evidence - In circumstantial evidence
  when prosecution relies on extra-judicial confession, court
  should examine it with greater degree of care and caution -
  Principles which would make it an admissible piece of
  evidence capable of forming the basis of conviction -
G Explained.

        Circumstantial Evidence - Theory of last seen together
    -: Evidentiary value - Held: The theory can raise the
    suspicion, but independently, it is not sufficient to lead to a
H                                 366
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                     367


finding of guilt - The theory should be applied taking the            A
prosecution case into consideration in its entirety.

   Evidence Act, 1872 - s. 27 - Recovery statement -
Admissibility in evidence - Explained.

      Administration of Criminal Justice - Criminal case - In         8
appeal accused acquitted - Extention of benefit of acquittal
order to non-appealing accused - Access to justice is
essential feature of administration of justice - Concept of fair
trial would take within its ambit, the right to be heard by
appellate court - If accused is unable to file appeal, it would       C
amount to denial of access to justice to such accused -
Where the court disbelieves the entire occurrence or where
role of the non-appealing accused is identical to that of the
appealing accused or where the ends of justice demand, the
court will be well within its jurisdiction to return the finding of   D
acquittal and even suo moto extend the benefit to the non-
appealing accused - Powers of Supreme Court under Articles
136, 142 and rights of the accused under article 21 are wide
enough to do complete justice to the parties - Constitution
of India, 1950 - Articles, 136, 142 and 21.                           E
     Appellants-accused Nos. 2 and 3 and accused No. 1
were prosecuted u/ss. 1208 and 302 IPC for having
caused death of a person. The prosecution case was that
A-1 was the brother of PW2 (wife of deceased). He had
                                                                      F
grievance against with the deceased because, he used
to torture PW2. In order to make life of PW-2 peaceful, he
entered into a criminal conspiracy with A-2 and A-3 to
commit murder of the deceased. PWs 4 and 5 had last
seen the accused and the deceased together. Next day
dead body of the deceased was found. After 4 days, the                G
accused persons came to PW6 and made confession to
him in the presence of one person to the effect that on
account of the family problem, they murdered the
deceased by strangulating him and after putting kerosene
on him, set the body on fire. The confessional statement              H
    368      SUPREME COURT REPORTS              [2012] 4 S.C.R.


A was reduced into writing (Ex.P-4). Thereupon, the
  accused were arrested by the police. On the basis of the
  statement u/s. 27 of Evidence Act, Police recovered M06
  (TVS moped), M07 (bottle smelling kerosene) and MOS
  (matchbox). The accused in their statement u/s. 313
B Cr.P.C. denied the incident and retracted from their extra-
  judicial confession. Trial court acquitted the accused u/
  s. 1208 IPC, but convicted them u/s. 302 IPC. High Court
  upheld the order of the trial court: The present appeal was
  preferred by A-2 and A-3. A-1 did not prefer any appeal.
c       Allowing the appeal and extending the benefit of the
    judgment to the non-appealing accused, the Court

         HELD: 1.1. The present case is a case based upon
    circumstantial evidence. In case of circumstantial
D   evidence, the onus lies upon the prosecution to prove the
    complete chain of events which shall undoubtedly point
    towards the guilt of the accused. Furt:iermore, in case of
    circumstantial evidence, where the prosecution relies
    upon an extra-judicial confession, the court has to
E   examine the same with a greater degree of care and
    caution. It is a settled principle of criminal jurisprudence
    that extra-judicial confession is a weak piece of evidence.
    Wherever the Court, upon due appreciation of the entire
    prosecution evidence, intends to base a conviction on an
F   extra-judicial confession, it must ensure that the same
    inspires confidence and is corroborated by other
    prosecution evidence. If, however, the extra-judicial
    confession suffers from material discrepancies or
    inherent improbabilities and does not appear to be
G   cogent as per the prosecution version, it may be difficult
    for the court to base a conviction on such a confession.
    In such circumstances, the court would be fully justified
    in ruling such evidence out of consideration. [Para 12)
    [380-F-H; 381-A-B]

H         Ba/winder Singh v. State of Punjab 1995 Supp. (4) SCC
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU             369


259; 1995 (5)Suppl. SCR 10; Pakkirisamy v. State of T.N. A
(1997) 8 sec 158; Kavita v. State of T.N. (1998) 6 sec 108:
1998 (3) SCR 902; State of Rajasthan v. Raja Ram (2003) 8
SCC 180: 2003 (2) Suppl. SCR 445; Aloke Nath Dutta v.
State of WB. (2007) 12 SCC 230: 2006 (10) Suppl. SCR
662; Sansar Chand v. State of Rajasthan (2010) 10 SCC B
604: 2010 (12) SCR 583; Rameshbhai Chandubhai Rathod
v. State of Gujarat (2009) 5 SCC 740; Sk. Yusuf v. State of
WB. (2011) 11 SCC 754: 2011 (8) SCR 83; Pancho v. State
of Haryana (2011) 10 SCC 165: 2011 (12) SCR 1173 - relied
on.                                                         c
     1.2. The principles which would make an extra-
judicial confession an admissible piece of evidence
capable of forming the basis of conviction of an accused
are: (i) The extra-judicial confession is a weak evidence
by itself. It has to be examined by the court with greater D
care and caution. (ii) It should be made voluntarily and
should be truthful. (iii) It should inspire confidence. (iv)
An extra-judicial confession attains greater credibility and
evidentiary value, if it is supported by a chain of cogent
circumstances and is further corroborated by other E
prosecution evidence. (v) For an extra-judicial confession
to be the basis of conviction, it should not suffer from any
material discrepancies and inherent improbabilities. (vi)
Such statement essentially has to be proved like any
other fact and in accordance with law. These precepts F
would guide the judicial mind while dealing with the
veracity of cases where the prosecution heavily relies
upon an extra-judicial confession alleged to have been
made by the accused. [Para 22] [384-B-G]
                                                             G
     1.3. The various factors bring out serious
deficiencies in the veracity, credence and evidentiary
value of Exhibit P4 (confessional statement). The accused
in their statement under Section 313 CrPC, have denied
the very execution of Ext. P-4. Ext. P-4 is stated to have H
been made by the accused persons to PW-6, in the
    370    SUPREME COURT REPORTS             [2012] 4 S.C.R.

A presence of one person who has not been examined by
  the prosecution to prove the recording of Ext. P-4 and to
  provide greater credence to this document. In Ext. P-4, it
  is stated that the deceased ill-treated his wife, PW-2, and
  that was the motive and, in fact, essentially the cause for
B the accused to murder the deceased. The whole
  emphasis is upon the bitter relationship between the
  husband and wife. The very basis of Ext. P-4 falls to the
  ground when PW-2 in her statement, stated that her
  husband was employed in a rolling mill and that there
C was no dispute between them. Further, she has
  categorically stated that she had never stated anything
  with regard to dispute between her husband and
  accused No.1 to the police and that there was no
  property dispute amongst them. Upon this, PW-2 was
  declared hostile by the prosecution with the leave of the
0
  court. Even in her cross-examination, nothing could be
  brought out to establish the fact of alleged cruelties
  inflicted by the deceased upon her and there being any
  dispute between them. The statements of PW4 and PWS
  is at variance with Exhibit P4 and hardly find
E corroboration from other prosecution evidence and also
   suffers from discrepancies. Thus, the contents of Exhibit
   P4 are belied by the prosecution evidences itself and,
   therefore, it is not safe for the court to rely upon such
   extra-judicial confession. Exhibit P4 has to be ruled out
F from the zone of consideration. [Paras 25, 26 and 29] [386-
   H; 387-A-E; 388-C-D]

       1.4. Undoubtedly, the last seen theory is an important
  event in the chain of circumstances that would
G completely establish and/or could point to the guilt of the
  accused with some certainty. But this theory should be
  applied while taking into consideration the case of the
  prosecution in its entirety and keeping in mind the
  circumstances that precede and follow the point of being
H so last seen. With the development of law, the theory of
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU            371


last seen has become a definite tool in the hands of the A
prosecution to establish the guilt of the accused. The
court has taken the consistent view that where the only
circumstantial evidence taken resort to by the
prosecution is that the accused and deceased were last
seen together, it may raise suspicion but it is not B
independently sufficient to lead to a finding of guilt.
[Paras 31 and 34] [389-B-C; 390-B-C]

    Arjun Marik v. State of Bihar 1994 Supp.(2) SCC 372:
1994 (2) SCR265; State of Kamataka v. M. V. Mahesh (2003)
3 SCC 353: 2003 (2) SCR 553; State of U.P. v. Satish (2005) C
3 SCC 114: 2005 (2) SCR 1132 - relied on.

     1.5. The statement of PW5 does not indicate the time
as to when he had seen the deceased and with which of
the accused. He expressed inability to even identify them. D
PW4 though claims to have seen them but has given a
time which itself is doubtful. Even this cannot be stated
with certainty that at that particular time the deceased
was alive or dead. Moreover, according to the doctor,
PW7, the deceased had died about 27 to 28 hours before E
the autopsy. The autopsy, was admittedly, performed
upon the deceased on 10th of July, at about 2 o'clock.
That implies that the deceased would have died
sometime during the morning of 9th July, while according
to PW4, he had seen the deceased along with A-1 after 2 F
p.m. on 9th July, 2002. In light of the abovementioned
contradictions and the uncertainty of evidence, the view
taken by the High Court that on the theory of last seen,
the accused can be convicted, cannot be sustained. This
fact is uncorroborated and suffers from apparent G
contradictions and discrepancies as well. [Paras 30, 35
and 36] [388-G-H; 389-A; 390-D, E-F]

     1.6. In the present case, the recoveries have been
effected upon the statement of the accused u/s. 27 of the
Evidence Act, whereby the accused stated that he had        H
         372      SUPREME COURT REPORTS               [2012] 4 S.C.R.


A hidden kerosene bottle, a match box and TVS Moped
  bearing No.50 TN 38 7344 and could get them recovered.
  According to the post mortem report Ext.P-10 as well as
  the forensic report Ext.P-22, kerosene or its smell was
  neither found on the body nor the belongings of the
B deceased and, therefore, it creates a little doubt as to
  whether the recovered items were at all and actually used
  in the commission of crime. However, as far as TVS
  moped, M0-6 is concerned, there is sufficient evidence
  to show that it was used by the accused but the other
c contradictions and discrepancies overshadow this
  evidence and give advantage to the accused. The
  prosecution has not been able to establish even the time
  of death of the deceased. Absence of kerosene oil on the
  body of the deceased and articles taken into custody
D from the body of the deceased, the contradictions in the
  statement of the witnesses, the fact that PW2 has not
  supported the case of the prosecution and PW5 not being
  able to even identify the accused, lend support to the
  pleas raised on behalf of the accused and create a dent
  in the story of the prosecution. In view of the cumulative
E effect of all the aspects, the judgment of the High Court
  is unsustainable. The prosecution has failed to prove its
  case beyond reasonable doubt. [Paras 38 and 39] [391-
  F; 392-A-F]

F              State of Rajasthan v. Bhup Singh (1997) 10 SCC 675:
         1997 (1) SCR 190 - relied on.

              1.7. Where the court finds that the entire case of the
         prosecution suffers from material contradictions, the most
,. . .   crucial evidence is not reliable, there are definite and
...:J    material flaws in the case of the prosecution and the
         Police has failed to discharge its duties at different steps,
         in that event, it will be difficult for the court to leave the
         non-appealing accused to his fate. Under the Indian
         criminal jurisprudence, an accused is presumed to be
H
   SAHADEVAN & ANR. v. STATE OF TAMIL NADU                373


innocent until proven guilty and his liberty can be              A
curtailed by putting him under imprisonment by due
process of law only. If the entire case of the prosecution
has been found to be unreliable and the prosecution, as
a whole, has not been able to prove its case beyond
reasonable doubt, then the benefit should accrue to all          B
the accused persons and not merely to the accused who
have preferred an appeal against the judgment of
conviction. [Para 40) (393-B-E]

    Raja Ram v. State of Madhya Pradesh (1994) 2 SCC
568: 1994 (2) SCR 114; Bijoy Singh v. State of Bihar (2002) C
9 SCC 147: 2002 (3) SCR 179; Pawan Kumar v. State of
Haryana (2003) 11 SCC 241: 2003 (1) Suppl. SCR 71 O;
Madhu v. State of Kera/a (2012) 2 SCC 399; Gurucharan
Kumar v. State of Rajasthan (2003) 2 SCC 698: 2003 (1)
SCR 60 - relied on.                                         D

     1.8. It is very difficult to set any universal principle
which could be applied to all cases irrespective of the
facts, circumstances and the findings returned by the
court of competent jurisdiction. It will always depend           E
 upon the facts and circumstances of a given case. Where
the court finds that the prosecution evidence suffers from
serious contradictions, is unreliable, is ex facie neither
cogent nor true and the prosecution has failed to
discharge the established onus of proving the guilt of the       F
accused beyond reasonable doubt, the court will be well
within its jurisdiction to return the finding of acquittal and
even suo moto extend the benefit to a non-appealing
accused as well, more so, where the court even
disbelieves the very occurrence of the crime itself. Of          G
course, the role attributed to each of the accused and
other attendant circumstances would be relevant
considerations for the court to apply its discretion
judiciously. [Para 41) (395-B-E]

    2.1. There can be varied reasons for a non-appealing         H
    374    SUPREME COURT REPORTS              [2012] 4 S.C.R.


A accused in not approaching the appellate court. If, for
  compelling and inevitable reasons, like lack of finances,
  absence of any person to pursue his remedy and lack of
  proper assistance in the jail, an accused is unable to file
  appeal, then it would amount to denial of access to justice
B to such accused. The concept of fair trial would take
  within its ambit the right to be heard by the appellate
  court. It is hardly possible to believe that an accused
  would, out of choice, give up his right to appeal,
  especially in a crime where a sentence of imprisonment
c for life is prescribed and awarded. Fairness in the
  administration of justice system and access to justice
  would be the relevant considerations for Supreme Court
  to examine whether a non-appealing accused could or
  could not be extended the benefit of the judgment of
  acquittal. The access to justice is an essential feature of
0
  administration of justice. This is applicable with
  enhanced rigour to the criminal jurisprudence. Where the
  court disbelieves the entire incident of the occurrence or
  where the role of the accused who has not appealed is
E identical to that of the other appealing accused or where
  the ends of justice demand, the court would not hesitate
  and, in fact, is duty bound, to dispense justice in
  accordance with law. [Para 41] [395-F-H; 396-A-B]

       2.2. The powers of Supreme Court, in terms of
F Articles 136 and 142 on the one hand and the rights of
  an accused under Article 21 of the Constitution on the
  other, are wide enough to deliver complete justice to the
  parties. These powers are incapable of being curtailed by
  such technical aspects which would not help in
G attainment of justice in the opinion of the Court. [Para 41]
  [396-B-C]
         2.3. In the present case, accused No.1, had been
    attributed the same role as the other two accused. All the
    accused were stated to have murdered the deceased
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU             375


and burnt his body. It was a case of circumstantial          A
evidence where not only has the prosecution failed to
prove all the facts and events to complete the chain of
events pointing only towards the guilt of the accused but
there are also definite discrepancies in the case of the
prosecution, contradictions between the statements of        B
the material witnesses and the most important piece of
prosecution evidence, the extra-judicial confession
(Exhibit P4), is found entirely unreliable, not worthy of
credence as well as the facts recorded in Exhibit P4 stand
disproved by another prosecution witness herself, i.e.,      c
PW-2, who, in fact, has lost her husband. [Para 42] [396-
0-F]

                   Case Law Reference:
    1995 (5) Suppl. SCR 10       Relied on      Para 13      o
    (1997) 8 sec 158             Relied on      Para 15
    1998 ( 3 ) SCR 902           Relied on      Para 16
    2003 (2) Suppl. SCR 445      Relied on      Para 17
                                                             E
    2006 (10 ) Suppl. SCR 662 Relied on         Para 18
    2010 (12) SCR 583            Relied on      Para 19
    (2009) 5 sec 140             Relied on      Para 20
                                                             F
    2011 (8) SCR 83              Relied on      Para 21
    2011 (12) SCR 1173           Relied on      Para 21
    1994 (2) SCR 265             Relied on      Para 31
    2003 (2) SCR 553             Relied on      Para 32      G
    2005 (2) SCR 1132            Relied on      Para 33
    1997 (1) SCR 190             Relied on      Para 37
                                               .
    1994 (2) SCR 114             Relied on      Para 40      H
    376      SUPREME COURT REPORTS                    [2012] 4 S.C.R.


A         2002 (3) SCR 179                Relied on        Para 40

          2003 (1) Suppl. SCR 710         Relied on        Para 40
          (2012) 2 sec 399                Relied on        Para 40

          2003 (1) SCR 60                 Relied on        Para 40
B
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1405 of 2008.

      From the Judgment & Order dated 27.9.2006 of the High
C Court of Judicature at Madras in Criminal Appeal No. 160 of
  2004.

        K.V. Viswanathan, B. Ragunath, Jaishree Viswanthan, T.
    Sakthi Kumaran, Vijay Kumar, Abhishek Kaushik for the
    Appellants.
D
          B. Balaji for the Respondent.

          The Judgment of the Court was delivered by

       SWATANTER KUMAR, J. 1. The present appeal is
E directed against the judgment of the High Court dated 27th
  September, 2006 vide which the High Court affirmed the
  judgment of conviction and order of sentence dated 31st
  December, 2003 passed by the Trial Court.

       2. The prosecution case is that Smt. Kamala!, PW-2 was
F married to one Yoganandan@ Loganathan, the deceased. The
  accused No.1, Chandran is the brother of Kamalal (PW2).
  accused No.2, Sahadevan, and accused No. 3, Arul Murugan,
  were the friends of accused No.1. PW2 was being ill-treated
  by Loganathan, her husband. Being her brother, accused No.1
G thought that if he murdered Loganathan, life of his sister would
  be peaceful. Thus, accused No.1 and his friends (the other two
  accused) entered into a criminal conspiracy to commit murder
  of Loganathan. According to PW-5, Karuppuswamy, when he
  was talking to one Chinnaswamy at a three star hotel near the
H Neruparichal bus stand at about 10 p.m. on 9th July, 2002, he
   SAHADEVAN & ANR. v. STATE OF TAMIL NADU                   377
           [SWATANTER KUMAR, J.]
saw       Sahadevan      driving      a    TVS      moped       in   A
Povmmanayakkampallayam road, while two other persons
were sitting as pillion riders. The vehicle was proceeding
towards west. After a while, one of them came back and again
went in the same direction on the same vehicle. PW-4, then saw
the deceased, Yoganandan and accused No.1 going in the               8
same direction on the TVS moped at about 2 p.m. Again after
some time, accused No.2 alone came back on the moped. On
10th July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a
dead body in the Pommanayakkanpallam Road, whereupon he
went to PW-1, the Administrative Officer and informed him of         C
that fact. PW-1, upon receiving this information, went to the spot
and saw the dead body. He then went to the Perumanallur
Police Station and made a complaint, Ext.P-1, to the Sub-
Inspector of Police, Ganesan, PW-8.

     3. Upon receipt of the complaint, the police registered a       D
case being Crime No.150 of 2002 for an offence under Section
302 of the Indian Penal Code, 1860 (for short "the IPC") against
unknown accused. The Investigating Officer, PW-9, proceeded
to the scene of occurrence. There he prepared observation
Mahazar, Ext.P-2 and took photographs of the dead body.              E

     4. Between 3 p.m. to 6 p.m., he conducted inquest over
the dead body in the presence of Panchayatdars and witnesses
and prepared the inquest report, Ext.P-13. The Senior Civil
Assistant Surgeon, PW7, attached to the Thirupur Government
                                                                     F
Hospital, after receiving the requisite information and the body,
performed autopsy on the body of the deceased. She noted
the injuries on the body of the deceased and issued the post-
mortem certificate, Ext. P-10, expressing the opinion that the
deceased would have died 27 to 28 hours prior to autopsy.
                                                                     G
   5. It is further the case of the prosecution that on 14th July,
2002, when PW-6, Muthurathinam, President of
Kanakampalayam Panchayat was in his office along with one
Shanmugasundaram, all the above-named three accused
came to his office and told him that deceased Loganathan was         H
    378    SUPREME COURT REPORTS                [2012] 4 S.C.R.


A the brother-in-law of accused No.1 and on account of family
  problem between accused No.1 and the deceased, they
  murdered Loganathan by strangulating him and after putting
  kerosene on him, set the body of the deceased afire. The
  statements made by the accused were reduced to writing by
8 PW-6 and after obtaining their signatures and putting his own
  signature thereon he handed over the report, Ext. P-4, to the
  Police Station along with the custody of the accused whereupon
  PW-9, the Investigating Officer arrested all the accused
  persons.

C       6. PW9, on the basis of the confessional statements,
  Ext.P-5 to P-7, recovered M0-6 (TVS moped TN 38 7344),
  M0-7 (bottle smelling of kerosene). and M0-8 (matchbox). PW-
  9 then sent the MOs for forensic examination along with Ext.
  P-15, the requisition therefor. Subsequently, PW-9 was relieved
D of his duties and PW-10 completed the investigation of the case
  and filed the chargesheet against all the three accused under
  Section 1208 and Section 302 IPC. All the accused were tried
  in accordance with law.

E      7. We may notice here that in their statement under
  Section 313 Cr.PC, the accused persons denied the incident,
  including the alleged extra-judicial confession made by them
  and also stated that they were falsely implicated in the case.
  However, all the three accused chose not to lead any defence.
F Finally, the prosecution examined as many as 10 witnesses
  and produced on record the documentary evidence. The trial
  Court vide its judgment dated 31st December, 2003 acquitted
  all the accused for an offence under Section 1208 IPC,
  however, it convicted all the three accused under Section 302
  IPC and awarded them sentence of imprisonment for life and
G fine of Rs. 5,000/-, in default thereof, to undergo rigorous
  imprisonment for six months.

        8. Aggrieved from the judgment of the trial court, the
    accused preferred an appeal before the High Court which
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                     379
          [SWATANTER KUMAR, J.]

came to be dismissed vide order dated 27th September, 2006            A
resulting in the filing of the present appeal.

    9. Accused No.2, Sahadevan and accused No.3, Arul
Murugan have preferred the present appeal. Accused No.1,
Chandran has not filed any appeal.                                    B

    10. The learned counsel appearing for these two appellants
has advanced the following arguments while impugning the
judgment under appeal :-

      (i)    The case of the prosecution is solely based upon         c
             the extra-judicial confession, which confession is
             neither reliable nor has been recorded in
             accordance with law. This extra-judicial confession
             cannot form the basis of conviction of the appellants
             since it has no corroboration and when examined          D
             in light of the settled principles of law, it is
             inconsequential, thus, the accused are entitled to
             the benefit of doubt.

     (ii)    In the present case, there is neither any eye-witness
             nor the prosecution has proved the complete chain        E
             of circumstances. The courts have erred in applying
             the theory of last seen together to return the finding
             of conviction against the accused. There being no
             direct evidence of involvement of the appellants in
             the commission of the crime, the theory of last seen     F
             together could not be of any assistance to the case
             of the prosecution.

     (iii)   The recoveries alleged to have been made in
             furtherance to the confessional statements of the G
             accused are inadmissible in evidence and, in any
             case, the objects recovered have no link with the
             commission of the crime and as such, it would be
             impermissible in law to use these recoveries
             against the accused for sustaining their conviction. H
    380         SUPREME COURT REPORTS                [2012] 4 S.C.R.


A         (iv)    The courts have failed to appreciate the medical
                  and other evidence placed on record in its correct
                  perspective. There are serious contradictions in the
                  medical and ocular evidence, as regards the time
                  of the death of the deceased. Once, the time of
B                 death of deceased is not established, the whole
                  story of the prosecution falls to the ground.

          (v)     According to the learned counsel for the appellants,
                  an extra-judicial confession, besides being
                  inadmissible, is also a very weak piece of evidence
c                 and in a case of circumstantial evidence like the
                  present, one cannot form a valid basis for returning
                  the finding of guilt against the accused.

         11. To the contra, the learned counsel appearing for the
D   State argued that the extra-judicial confession in the present
    case is admissible as it is duly corroborated by other
    prosecution evidence, and thus, the courts are fully justified in
    convicting the accused. It is also contended that the present
    case is of circumstantial evidence and the prosecution has
E   succeeded in establishing every circumstance of the chain of
    events that would fully support the view that the accused is guilty
    of the offence. The court while dealing with the judgment under
    appeal, upon proper appreciation of evidence, thus, has come
    to the right conclusion.
F        12. There is no doubt that in the present case, there is no
    eye-witness. It is a case based upon circumstantial evidence.
    In case of circumstantial evidence, the onus lies upon the
    prosecution to prove the complete chain of events which shall
    undoubtedly point towards the guilt of the accused.
G   Furthermore, in case of circumstantial evidence, where the
    prosecution relies upon an extra-judicial confession, the court
    has to examine the same with a greater degree of care and
    caution. It is a settled principle of criminal jurisprudence that
    extra-judicial confession is a weak piece of evidence. Wherever
H   the Court, upon due appreciation of the entire prosecution
   SAHADEVAN & ANR. v. STATE OF TAMIL NADU                     381
           [SWATANTER KUMAR, J.]
 evidence, intends to base a conviction on an extra-judicial           A
 confession, it must ensure that the same inspires confidence
 and is corroborated by other prosecution evidence. If, however,
 the extra-judicial confession suffers from material discrepancies
 or inherent improbabilities and does not appear to be cogent
 as per the prosecution version, it may be difficult for the court     B
 to base a conviction on such a confession. In such
 circumstances, the court would be fully justified in ruling such
 evidence out of consideration.

      13. Now, we may examine some judgments of this Court             C
 dealing with this. aspect.

      14. In Ba/winder Singh v. State of Punjab [1995 Supp. (4)
 SCC 259], this Court stated the principle that an extra-judicial
 confession, by its very nature is rather a weak type of evidence
 and requires appreciation with a great deal of care and caution.      D
 Where an extrajudicial confession is surrounded by suspicious
 circumstances, its credibility becomes doubtful and it loses its
 importance.

     15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158],
                                                                       E
the Court held that it is well settled that it is a rule of caution
where the court would generally look for an independent reliable
corroboration before placing any reliance upon such extra-
judicial confession.

         16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108],      F
. the Court stated the dictum that there is no doubt that conviction
  can be based on extrajudicial confession, but it is well settled
  that in the very nature of things, it is a weak piece of evidence.
  It is to be proved just like any other fact and the value thereof
  depends upon veracity of the witnesses to whom it is made.           G

      17. While explaining the dimensions of the principles
govJrning the admissibility and evidentiary value of an extra-
judicial confession, this Court in the case of State of Rajastha~;
v. Raja Ram [(2003) 8 SCC 180] stated the principlE ..• a~ an
                                                                       H
    382       SUPREME COURT REPORTS                   [2012] 4 S.C.R.


A extra-judicial confession, if voluntary and true and made in a fit
  state of mind, can be relied upon by the court. The confession
  will have to be proved like any other fact. The value of evidence
  as to confession, like any other evidence, depends upon the
  veracity of the witness to whom it has been made. The Court,
B further expressed the view that such a confession can be relied
  upon and conviction can be founded thereon if the evidence
  about the confession comes from the mouth of witnesses who
  appear to be unbiased, not even remotely inimical to the
  accused and in respect of whom nothing is brought out which
C may tend to indicate that he may have a motive of attributing
  an untruthful statement to the accused.

       18. In the case of Aloke Nath Dutta v. State of WB. [(2007)
  12 SCC 230], the Court, while holding the placing of reliance
  on extra-judicial confession by the lower courts in absence of
D other corroborating material, as unjustified, observed:

          "87. Confession ordinarily is admissible in evidence. It is
          a relevant fact. It can be acted upon. Confession may under
          certain circumstances and subject to law laid down by the
E         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.
F         xxx            xxx            xxx
          89. A detailed confession which would otherwise be withir,
          the special knowledge of the accused may itself be not
          sufficient to raise a presumption that confession is a truthful
G         one. Main features of a confession are required to be
          verified. If it is not done, no conviction can be based only
          on the sole basis thereof."

      19. Accepting the admissibility of the extra-judicial
H confession, the Court in the case of Sansar Chand v. State of
  Rajasthan ((2010) 10 SCC 604] held that:-
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                         383
          [SWATANTER KUMAR, J.]
     "29. There is no absolute rule that an extra-judicial A
     confession can never be the basis of a conviction, although
     ordinarily an extra-judicial confession should be
     corroborated by some other material. [Vide Thimma and
     Thimma Raju v. State of Mysore, Mulk Raj v. State of
     UP., Sivakumar v. State (SCC paras 40 and 41 : AIR B
     paras 41 & 42), Shiva Karam Payaswami Tewari v. State
     of Maharashtra and Mohd. Azad v. State of W.B.]

     30. In the present case, the extra-judicial confession by
     Balwan has been referred to in the judgments of the                  C
     learned Magistrate and the Special Judge, and it has been
     corroborated by the other material on record. We are
     satisfied that the confession was voluntary and was not the
     result of inducement, threat or promise as contemplated
     by Section 24 of the Evidence Act, 1872."
                                                                          D
     20. Dealing with the situation of retraction from the extra-
judicial confession made by an accused, the Court in the case
of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5 sec 740], held as under :
                                                                          E
     "It appears therefore, that the appellant has retracted his
     confession. When an extra-judicial confession is retracted
     by an accused, there is no inflexible rule that the court
     must invariably accept the retraction. But at the same time
     it is unsafe for the court to rely on the retracted confession,      F
     unless, the court on a consideration of the entire evidence
     comes to a definite conclusion that the retracted
     confession is true."

     21. Extra-judicial confession must be established to be
true and made voluntarily and in a fit state of mind. The words           G
of the witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis
of conviction, if it passes the test of credibility. The extra-judicial
confession should inspire confidence and the court should find            H
    384          SUPREME COURT REPORTS                 [2012) 4 S.C.R.


A   out whether there are other cogent circumstances on record to
    support it. [Ref. Sk. Yusuf v. State of W B. [(2011) 11 SCC
    754] and Pancho v. State of Haryana [(2011) 10 SCC 165].

         22. Upon a proper analysis of the above-referred
B   judgments of this Court, it will be appropriate to state the
    principles which would make an extra-judicial confession an
    admissible piece of evidence capable of forming the basis of
    conviction of an accused. These precepts would guide the
    judicial mind while dealing with the veracity of cases where the
    prosecution heavily relies upon an extra-judicial confession
C   alleged to have been made by the accused.

    The Principles

          (i)     The extra-judicial confession is a weak evidence by
D                 itself. It has to be examined by the court with
                  greater care and caution.

          (ii)     It should be made voluntarily and should be truthful.

          (iii)    It should inspire confidence.
E
          (iv)    An extra-judicial confession attains greater
                  credibility and evidentiary value, if it is supported
                  by a chain of cogent circumstances and is further
                  corroborated by other prosecution evidence.

F         (v)     For an extra-judicial confession to be the basis of
                  conviction, it should not suffer from any material
                  discrepancies and inherent improbabilities.

          (vi)    Such statement essentially has to be proved like any
G                 other fact and in accordance with law.

         23. Having stated the principles which may be kept in mind
    by the court while examining the acceptability and evidentiary
    value of the extra-judicial confession, we may now refer to the
    extra-judicial confession, Ext. P-4, in the case before us. This
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                  385
          [SWATANTER KUMAR, J.]

extra-judicial confession is alleged to have been made by all     A
the three accused to one Muthurathinam, PW-6. The said Ext.
P-4 reads as under:-

     "I am the president of Kanakampalayam today the
    14.7.2002 at 9.30 in the morning, when I was at my office     8
    along with loclite Shanmugasundaram, a person named
    Chandran aged 36 son of Muthu and resident of Navakarai,
    Pooluvapatti along with Sahadevan aged 27 s/o
    Pannerselvam having a furniture by name Sri Priya
    agencies at Boyampalayam Sri Nagar and one Arul               C
    Murugan aged 23 s/o Krishnan, belonging to Dindugal and
    going to printing work by staying at pandian nagar came
    to my office saying that he along with his friends
    Sahadevan and Arulmurugan, on 08-07-02 his sisters
    husband Yoganathan @ Logananthan who was without
    going to work and nor looking after the family and was        D
    loitering hereunder an no way to look after his sister
    Kamalal and her children and more tortures from her
    husband and confessed to her that her husband without
    going any work, he is simply loitering hereunder and tried
    to him to separate her from her husband. Hence                E
    elimination is better than separation and said his sisters
    life would be, peaceful, he along with his friends
    Sahadevan and Arulmurugan executed a friendly call to him
    and told him that they would promised him a job at nrupur.
    After 10 p.m. in the night, when there was no traunt on the   F
    Neruperchial Bommanaichenpalayam mud road
    Sahadevan in his moped with Loganathan sit and also
    made Arul Murugan to sit along with and asked to halt at
    certain place and again Sahadevan came in moped and
    he along with kerosene and match box and went there and       G
    parked the moped and were all 4 of them talking enticing
    Loganathan with getting him a job at Tirupur he with the
    towel which was kept ready put around Loganathan's neck
    and he strangled by holding one end of the towel and
    Arulmurugan strangling by the other end of the towel. ME!an   H
    386      SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A         while Sahadevan bought how Loganathan's face and hand
          and started face and since due to strangulation
          Loganathan fainted and fell into the east side of the ditch
          and suddenly and Chandran took kerosene and matchbox
          from moped cover which was kept ready, in order to avoid
B         identity burnt him and killed him and after that they all 3
          took the moped and they went to Sahadevan house and
          parked the vehicle and the same night they went out of
          station and a return to Tirupur only yesterday. They came
          to know that the police are after then they came to my
c         house today and told me what happened
          Shanmugasundram recorded the above averments of
          Chandran after that bringing all 3 to you and present them
          before you."

       24. As per the case of the prosecution, the deceased was
D murdered on 9th -10th July, 2002. The body of the deceased
  was taken into custody by the police on 10th July, 2002 itself.
  The accused persons were residents of the same village and
  there is nothing on record to show that the Police made any
  serious attempt to search and arrest them. The Investigating
E Officers, PW-9 and PW-10, have not stated in their statements
  that the accused persons were absconding. Four days later,
  on 14th July, 2002, the accused persons are alleged to have
  gone to the office of PW-6 to make the confession of having
  murdered the brother-in-law of accused No.1. Ext. P-4 is
F addressed to the police inspector. If the accused were to make
  such a statement to the police itself, then what was the need
  for them to first go to PW-6. However, an explanation is
  advanced on behalf of the State that the accused only signed
  the statement and it was PW-6 who then handed over Ext. P-
G 4 to the police, along with the custody of the accused persons.

         25. Further, Ext. P-4 is stated to have been made by the
    accused persons to PW-6, in the presence of
    Shanmugasundaram. The said person, for reasons best known
    to the prosecution, has not been examined by the prosecution
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                     387
          [SWATANTER KUMAR, J.]
to prove the recording of Ext. P-4 and to provide greater             A
credence to this document.

     26. Moreover, in their statement under Section 313 CrPC,
the accused have denied the very execution of Ext. P-4. In order
to examine the veracity of this document, the court essentially
                                                                      8
has to find out the correctness and corroboration of the facts
stated in Ext. P-4 by other prosecution evidence. In Ext. P-4, it
is stated that the deceased ill-treated his wife, PW-2, Kamala!
and that was the motive and, in fact, essentially the cause for
the accused to murder the deceased. The whole emphasis is
upon the bitter relationship between the husband and wife. The        C
very basis of Ext. P-4 falls to the ground when one peruses the
statement of Kamala!, PW-2. In her statement, she has stated
that her husband was employed in a rolling mill and that there
was no dispute between them. Further, she has categorically
stated that she had never stated anything with regard to dispute      D
between her husband and accused No.1 to the police and that
there was no property dispute amongst them. Upon this, this
witness was declared hostile by the prosecution with the leave
of the court. Even in her cross-examination, nothing could be
brought out to establish the fact of alleged cruelties inflicted by   E
the deceased upon her and there being any dispute between
them.

     27. An attempt has been made on behalf of the prosecution
to support its case by the statements of PW-4 and PW-5. PW-           F
4 stated that he had seen Loganathan, who used to live
opposite his house, going on a moped along with his wife's
brother Chandran at about 2 O'clock in the afternoon. After
knowing that there was a corpse lying at Nereuperichel, he went
and saw the dead body. It was that of Loganathan.
                                                                      G
    28. PW5 also deposed that on 9th July, 2002, at about
10.00 p.m., he had seen three persons going in a moped
towards Bommanaickanpalayam road. After sometime, only
one person returned on the moped and again went towards
west. Thereafter, those three persons returned. He stated that        H
    388      SUPREME COURT REPORTS                   [2012] 4 S.C.R.


A he could not identify those three persons, if he saw them. Out
  of the three, he knew only one person who drove the moped
  and that was accused No.2, Sahadevan. Next day, upon
  hearing the news that there was a corpse lying, he went and
  saw it. Since the face of the corpse was burnt, he could not
s identify him.
      29. The statement of these two witnesses is at variance
  with Exhibit P4 and hardly finds corroboration from other
  prosecution evidence and also suffers from discrepancies.
  Thus, the contents of Exhibit P4 are belied by the prosecution
C evidences itself and, therefore, it is not safe for the Court to rely
  upon such extra-judicial confession. The various factors
  mentioned above bring out serious deficiencies in the veracity,
  credence and evidentiary value of Exhibit P4. For the afore-
  recorded reasoning, we must disturb the finding of guilt
D recorded by the Trial Court while substantially relying upon
  Exhibit P4 as, in our opinion, Exhibit P4 has to be ruled out
  from the zone of consideration, which we hereby do.

       30. The courts below, the Trial Court in particular, have laid
E some emphasis on the theory of last seen, while finding the
  accused guilty of the offence. As far as PWS is concerned, he
  says that he only saw three persons going on the moped and
  he could not identify these persons. PW4 stated that he had
  seen the deceased going on a moped with Chandran at about
F 2.00 o'clock in the afternoon. The time lag between the time at
  which this witness saw the accused and the deceased together
  and when the body of the deceased was found on the next day
  is considerably long. According to PW4, he could identify
  Loganathan while, according to PWS, the face of the deceased
G was burnt and, therefore, he could not identify him. Moreover,
  according to the doctor, PW7, the deceased had died about
  27 to 28 hours before the autopsy. The autopsy, was admittedly,
  performed upon the deceased on 10th of July, at about 2
  o'clock. That implies that the deceased would have died
  sometime during the morning of 9th July, while according to
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                      389
          [SWATANTER KUMAR, J.]

PW4, he had seen the deceased along with Chandran after 2              A
p.m. on 9th July, 2002.

       31. With the development of law, the theory of last seen
has become a definite tool in the hands of the prosecution to
establish the guilt of the accused. This concept is also accepted      B
in various judgments of this Court. The Court has taken the
consistent view that where the only circumstantial evidence
taker;i resort to by the prosecution is that the accused and
deceased were last seen together, it may raise suspicion but
it is not independently sufficient to lead to a finding of guilt. In   c
Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], this
Court took the view that the where the appellant was alleged
to have gone to the house of one Sitaram in the evening of 19th
July, 1985 and had stayed in the night at the house of deceased
Sitaram, the evidence was very shaky and inconclusive. Even
                                                                       0
if it was accepted that they were there, it would, at best, amount
to be the evidence of the appellants having been last seen
together with the deceased. The Court further observed that it
is settled law that the only circumstance of last seen will not
complete the chain of circumstances to record a finding that it
is consistent only with the hypothesis of guilt of the accused and,    E
therefore, no conviction, on that basis alone, can be founded.

      32. Even in the case of State of Kamataka v. M. V. Mahesh
[(2003) 3 sec 353], this Court held that merely being last seen
together is not enough. What has to be established in a case           F
of this nature is definite evidence to indicate that the deceased
had been done to death of which the respondent is or must be
aware as also proximate to the time of being last seen together.
No such clinching evidence is put forth. It is no doubt true that
even in the absence corpus delicti it is possible to establish in      G
an appropriate case commission of murder on appropriate
material being made available to the Court.

     33. In the case of State of U.P. v. Satish [(2005) 3SCC
114], this Court had stated that the principle of last seen comes      H
    390     SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A   into play where the time gap between the point of time when
    the accused and the deceased were last seen alive and when
    the deceased is found dead is so small that possibility of any
    person other than the accused being the author of the crime
    becomes impossible.
B
       34. Undoubtedly, the last seen theory is an important event
  in the chain of circumstances that would completely establish
  and/or could point to the guilt of the accused with some
  certainty. But this theory should be applied while taking into
C consideration the case of the prosecution in its entirety and
  keeping in mind the circumstances that precede and follow the
  point of being so last seen.

        35. The statement of PW5 does not indicate the time as
  to when he had seen the deceased and with which of the
D accused. He expressed inability to even identify them. PW4
  though claims to have seen them but has given a time which
  itself is doubtful. Even this cannot be stated with certainty that
  at that particular time the deceased was alive or dead.

E        36. In light of the abovementioned contradictions and the
    uncertainty of evidence, we are unable to sustain the view taken
    by the High Court that on the theory of last seen, the accused
    can be convicted. This fact is uncorroborated and suffers from
    apparent contradictions and discrepancies as well.

F RECOVERY

       37. PW9, the Investigating Officer, after arresting accused
  No.2, Sahadevan, recorded his statement. The accused stated
  that he had hidden kerosene bottle, a match box and TVS
G Moped bearing No.50 TN 38 7344 and could get them
  recovered. He also stated that Chandran had taken him on that
  moped. In furtherance to this statement of this accused and in
  presence of the witnesses at about 2.45 hours, the Investigating
  Officer recovered and seized M06, the TVS moped, M07,
H bottle with kerosene odour and M08, match box. In his entire
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                    391
          [SWATANTER KUMAR, J.]

deposition, this witness had not stated that these were the         A
articles which were used by the accused persons in the
commission of the crime. It was expected of the prosecution
to establish a connection between the articles recovered and
the incident or the crime, as alleged to have been committed.
According to the prosecution, kerosene oil was poured over the      B
deceased and he was set on fire. No kerosene was found on
the body of the deceased or on the belongings, i.e., clothing,
chappal etc. of the deceased. The witness to the confession
statement, Shanmugasundram, was not examined. PW6
admitted before the Court that he did not see the house of the      c
accused, Sahadevan. In the case of State of Rajasthan v. Bhup
Singh [(1997) 10 SCC 675], this Court observed the following
as the conditions prescribed in Section 27 of the Indian
Evidence Act, 1872 for unwrapping the cover of ban against
admissibility of statement of accused to police (1) a fact should
                                                                    0
have been discovered in consequence of the information
received from the accused; (2) he should have been accused
of an offence; (3) he should have been in the custody of a police
officer when he supplied the information; (4) the tact so
discovered should have been deposed to by the witness. The
Court observed that if these conditions are satisfied, that part    E
of the information given by the accused which led to such
recovery gets denuded of the wrapper of prohibition and it
becomes admissible in evidence.

     38. In the present case, the recoveries have been effected     F
upon the statement of the accused under Section 27 of the
Evidence Act. These recoveries, in our view, were made in
furtherance to the statement of the accused who were in police
custody and in presence of independent witnesses. It may be
that one of them had not been examined but that, by itself, shall   G
not vitiate the recovery or make the articles inadmissible in
evidence. The aspect which the Court has to consider in the
present case is whether these recoveries have been made in
accordance with law and whether they are admissible in
evidence or not and most importantly the link with and effect of    H
    392      SUPREME COURT REPORTS                   [2012] 4 S.C.R.


A the same vis-a-vis the commission of the crime. According to
  the post mortem report Ext. P-10 as well as the forensic report
  Ext.P-22, kerosene or its smell was neither found on the body
  nor the belongings of the deceased and, therefore, it creates
  a little doubt as to whether the recovered items were at all and
B actually used in the commission of crime. However, as far as
  TVS moped, M0-6 is concerned, there is sufficient evidence
  to show that it was used by the accused but the other
  contradictions and discrepancies noted above overshadow this
  evidence and give advantage to the accused.
c      39. Now, we would deal with the contention of the appellant
  that the· prosecution has not been able to establish even the
  time of death of the deceased. According to the prosecution,
  the deceased had been murdered on 9th July, 2002 at about
  11 p.m. but according to the post mortem report Exhibit P10,
D the deceased was murdered on 10th July, 2002, i.e. between
  10 and 11 a.m. The post mortem report was recorded on 11th
  July, 2002 at 2.00 p.m. stating that the deceased was murdered
  before 27 to 28 hours. Absence of kerosene oil on the body of
  the deceased and articles taken into custody from the body of
E the deceased, the contradictions in the statement of the
  witnesses, the fact that PW2 has not supported the case of the
  prosecution and PW5 not being able to even identify the
  accused, lend support to the arguments raised on behalf of the
  accused and create a dent in the story of the prosecution. Not
F on any single ground, as discussed above, but in view of the
  cumulative effect of the above discussion on all the aspects,
  we are unable to sustain the judgment of the High Court. In our
  opinion, the prosecution has failed to prove its case beyond
  reasonable doubt.
G
         40. In view of our above discussion, the last question for
    consideration of the Court is as to what order, if any, is required
    to be made against the non-appealing accused, i.e., accused
    No.1, Chandran. From the prosecution evidence, it is clear that
    some role had been specifically assigned to the accused
H
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                    393
          [SWATANTER KUMAR, J.]
Chandran. He is the brother-in-law of the deceased and is A
stated to have been last seen taking the deceased on the
moped whereafter the deceased never returned. In normal
circumstances, the obvious result would be to leave the non-
appealing accused to undergo the punishment awarded to him
in accordance with law. But, where the Court finds that the entire B
case of the prosecution suffers from material contradictions, the
most crucial evidence is not reliable, there are definite and
material flaws in the case of the prosecution and the Police has
failed to discharge its duties at different steps, in that event, it
will be difficult for this Court to leave the non-appealing accused C
to his fate. Under the Indian criminal jurisprudence, an accused
is presumed to be innocent until proven guilty and his liberty can
be curtailed by putting him under imprisonment by due process
of law only. If the entire case of the prosecution has been found
to be unreliable and the prosecution, as a whole, has not been
                                                                     0
able to prove its case beyond reasonable doubt, then the
benefit should accrue to all the accused persons and not merely
to the accused who have preferred an appeal against the
judgment of conviction. In the case of Raja Ram v. State of
Madhya Pradesh [(1994) 2 SCC 568], this Court extended the
benefit of conversion of sentence to all the accused, from that E
under Section 302 IPC to one under Section 304 IPC, including
the non-appealing accused. The Court held that in its opinion,
the case of the non-appealing accused was not really
distinguisbable from other accused persons and it was
appropriate that benefit of the judgment should also be F
extended to the non-appealing accused, Ram Sahai, in that
case. Again, in the case of Bijoy Singh v. State of Bihar [(2002)
9 SCC 147], this Court clearly stated the principle that it has
set up a judicial precedent that where on evaluation of the case,
the Court reaches the conclusion that no conviction of any G
accused is possible the benefit of that decision must be
extended to the co-accused, similarly situated, though he has
not challenged the order by way of an appeal. In the case of
Pawan Kumar v. State of Haryana [(2003) 11 SCC 241 ], while
referring to the myth of the salutary powers exercisable by the H
    394      SUPREME COURT REPORTS                      [2012] 4 S.C.R.


A Court under Article 142 of the Constitution for doing complete
  justice to the parties, the Court opined that powers under Article
   136 of the Constitution can be exercised by it even suo motu
  and that the right to personal liberty guaranteed to the citizens,
  as enshrined under Article 21 of the Constitution, would be a
B factor which can be considered by the Court in granting such
  reliefs. The Court held as under :

          "17. Apart from the salutary powers exercisable by this
          Court under Article 142 of the Constitution for doing
          complete justice to the parties, the powers under Article
c         136 of the Constitution can be exercised by it in favour of
          a party even suo motu when the Court is satisfied that
          compelling grounds for its exercise exist but it should be
          used very sparingly with caution and circumspection
          inasmuch as only the rarest of rare cases. One of such
D         grounds may be, as it exists like in the present case, where
          this Court while considering appeal of one of the accused
          comes to the conclusion that conviction of appealing as
          well as non-appealing accused both was unwarranted.
          Upon the aforesaid conclusion arrived at by the Apex Court
E         of the land, further detention of the non-appealing accused,
          by virtue of the judgment rendered by the High Court
          upholding his conviction, being without any authority of law,
          infringes upon the right to personal liberty guaranteed to
          the citizen as enshrined under Article 21 of the Constitution.
F         In our view, in cases akin to the present one, where there
          is either a flagrant violation of mandatory provision of any
          statute or any provision of the Constitution, it is not that this
          Court has a discretion to exercise its suo motu power but
          a duty is enjoined upon it to exercise the same by setting
G         right the illegality in the judgment of the High Court as it is
          well settled that illegality should not be allowed to be
          perpetuated and failure by this Court to interfere with the
          same would amount to allowing the illegality to be
          perpetuated. In view of the foregoing discussion, we are
H         of the opinion that accused Balwinder Singh alias Binder
  SAHADEVAN & ANR. v. STATE OF TAMIL NADU                       395
          [SWATANTER KUMAR, J.]
     is also entitled to be extended the same benefit which we          A
     are granting in favour of the appellant."

    Similar view has also been expressed by this Court in the
cases of Madhu v. State of Kera/a [(2012) 2         sec
                                                   399] and
Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC 698].
                                                                        B
     41. It is very difficult to set any universal principle which
could be applied to all cases irrespective of the facts,
circumstances and the findings returned by the Court of
competent jurisdiction. It will always depend upon the facts and
circumstances of a given case. Where the Court finds that the           C
prosecution evidence suffers from serious contradictions, is
unreliable, is ex facie neither cogent nor true and the
prosecution has failed to discharge the established onus of
proving the guilt of the accused beyond reasonable doubt, the
Court will be well within its jurisdiction to return the finding of     D
acquittal and even suo moto extend the benefit to a non-
appealing accused as well, more so, where the Court even
disbelieves the very occurrence of the crime itself. Of course,
the role attributed to each of the accused and other attendant
circumstances would be relevant considerations for the Court            E
to apply its discretion judiciously. There can be varied reasons
for a non-appealing accused in not approaching the appellate
Court. If, for compelling and inevitable reasons, like lack of
finances, absence of any person to pursue his remedy and lack
of proper assistance in the jail, an accused is unable to file          F
appeal, then it would amount to denial of access to justice to
such accused. The concept of fair trial would take within its
ambit the right to be heard by the appellate Court. It is hardly
possible to believe that an accused would, out of choice, give
up his right to appeal, especially in a crime where a sentence          G
of imprisonment for life is prescribed and awarded. Fairness
in the administration of justice system and access to justice
would be the relevant considerations for this Court to examine
whether a non-appealing accused could or could not be
extended the benefit of the judgment of acquittal. The access
to justice is an essential feature of administration of justice. This   H
    396      SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A is applicable with enhanced rigour to the criminal jurisprudence.
  Where the court disbelieves the entire incident of the
  occurrence or where the role of the accused who has not
  appealed is identical to that of the other appealing accused or
  where the ends of justice demand, the Court would not hesitate
B and, in fact, is duty bound, to dispense justice in accordance
  with law. The powers of this Court, in terms of Articles 136 and
  142 on the one hand and the rights of an accused under Article
  21 of the Constitution on the other, are wide enough to deliver
  complete justice to the parties. These powers are incapable
c of being curtailed by such technical aspects which would not
  help in attainment of justice in the opinion of the Court. In light
  of the above principles, this Court is required to consider the
  e~ect of these judgments on the case of the non-appealing
  accused in the present case.

D       42. In the present case, accused No.1, Chandran had been
  attributed the same role as the other two accused. All the
  accused were stated to have murdered the deceased and
  burnt his body. It was a case of circumstantial evidence where
  not only has the prosecution failed to prove all the facts and
E events to complete the chain of events pointing only towards
  the guilt of the accused but there are also definite discrepancies
  in the case of the prosecution, contradictions between the
  statements of the material witnesses and the most important
  piece of prosecution evidence, the extra-judicial confession,
F Exhibit P4, is found entirely unreliable, not worthy of credence
  as well as the facts recorded in Exhibit P4 stand disproved by
  another prosecution witness herself, i.e., PW-2, who, in fact,
  has lost her husband.

       43. For the reasons afore-recorded, while accepting the
G appeal of the accused-appellants, we also direct that the benefit
  of this judgment shall also stand extended to accused No.1,
  Chandran, who is in jail. All the accused are acquitted of the
  charge under Section 302 IPC. They be set at liberty forthwith.

H K.K.T.                                           Appeal allowed.