BASKARAN & ANR.versusSTATE OF TAMIL NADU

                         [2014] 5 S.C.R. 824

A                        BASKARAN & ANR.
                                   v.
                      STATE OF TAMIL NADU
                 (Criminal Appeal No. 121 of 2008)
                           APRIL 25, 2014
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.)

         Penal Code, 1860- ss.302 and 376- Rape followed by
    murder- Conviction of appellants (A-1 and A-2) u/ss.376, 302
C   by trial court - High Court affirmed conviction of A-1 for both
    rape and murder but held A-2 guilty of rape only and not
    murder - On appeal, held: A-1 and A-2 committed rape on
    the victim one after the other whereafter A-1 throttled the neck
    of the deceased with his hands resulting in her death which
o   act was questioned by A-2 - In the circumstances, even
    though A-2 committed rape on the victim and was convicted
    for the same, he was rightly acquitted by the High Court of
    the offence of murder- Insofar as A-1 was concerned, he was
    insulted by the deceased when he attempted to develop
E   intimacy with her whereupon A-1 got angry and conspired with
    his friend and committed not only rape on her, but also
    murdered her - Although, there was no eye-witness to the
    incident, confessional statement of the accused fully
    corroborated circumstantial evidence as the post-mortem
F   report revealed that deceased had died of strangulation which
    matched with the confessional statement of A-1 - Sexual
    assault of rape was also established from the post-mortem
    report - Evidence of PW-10 and PW-13, the then Village
    Administrative Officers before whom A-1 and 2 gave their
G   extra-judicial confessions, clearly unveiled the case of the
    prosecution and this evidence was further corroborated - PW-
    11 and PW-14 even though treated as hostile, not able to
    establish that the extra-judicial confessions had not been
    recorded in their presence - Merely because one of the

H                                 824
    BASKARAN & ANR. v. STATE OF TAMIL NADU                    825

 witnesses to the confessional statement did not support the          A
confession in its entirety, the entire confession cannot be
brushed aside as unreliable even though independent
 witness like the Village Administrative Officer had supported
 the recording of conviction - In addition, recovery memos
 from A-1 and A-2 clearly established the charges leveled             B
 against them - Conviction of appellants not based merely on
 confessional statement but also on other substantial
 evidence relied upon by the prosecution - No infirmity in the
judgment of High Court holding the appellants guilty.

       Evidence - Confession - Extra judicial confession -
                                                                      c
  Reliability of- Held: An extra-judicial confession can be relied
  upon only if the same is voluntary and true and made in a fit
  state of mind - But it is not open to any court to start with the
  presumption that extra-judicial confession is insufficient to
  convict the accused even though it is supported by the other        D
  circumstantial evidence and corroborated by independent
  witness which was the position in the instant case - If evidence
  relating to extra-judicial confession is found credible after
  being tested on the touchstone of credibility and acceptability,
· it can solely form the basis of conviction.                         E

      The prosecution case was that the appellants -A1 &
 A2 along with two others forcibly took a girl to a secluded
 place, where she was raped and then in course of the
 same transaction, A1 strangulated her to death; and that             F
 further, with a view to screen the offence, all of them threw
 the dead body to a secluded place in an agricultural field.
 Subsequently, A-1 made extra-judicial confession before
 PW10 which was witnessed by PW11 while A-2 made
 extra-judicial confession before PW13 which was                      G
 witnessed by PW14. Both PW10 and PW13 were Village
 Administrative Officers.
     Placing reliance upon the said extra-judicial
 confessions made by A-1 and 2, the trial court convicted
 them under Sections 302 and 376 IPC. On appeal, the                  H
    826      SUPREME COURT REPORTS             [2014] 5 S.C.R. ·


A High Court affirmed the conviction of A-1 under Section
  376(2)(g) and 302 l.P.C. As regards A-2, the High Court
  acquitted him of the offence of murder under Section 302
  IPC but upheld his conviction under Section 376 IPC.

      The question which arose for consideration in the
8
  present appeal was whether the appellants could be
  convicted solely on the basis of two extra-judicial
  confessions, allegedly witnessed by PW-11 and PW-14
  respectively though they had turned hostile with regard
C to some portions of the prosecution evidence.

          Dismissing the appeal, the Court
         HELD: 1. There is substance in the plea of the
    prosecution that the accused A-1 and A-2 committed rape
    on the victim one after the other and A-1 thought that if          ,
0                                                                  '
    the victim is allowed to go alive, she may expose all of;
    them and, therefore, A-1 throttled the neck of the
    deceased with his hands resulting in her death and on
    noticing this, A-2 questioned him as to why he did like
    that. Thus, even though A-2 had committed rape on the
E   victim, his acquittal under Section 302 IPC but conviction
    under Section 376 IPC was rightly sustained. In so far as
    A-1 was concerned, the background of the proseculion
    story cannot be given a go by as the case of the
    prosecution was that appellant no.1 was ins!..llted by the
F   deceased when he attempted to devefop intimacy with
    her and on being insulted by her, A-1 got angry and
    conspired with his friend and committed not only rape on
    her, but also murdered her. Although, there was no eye-
    witness to this incident, the confessional statement of the
G   accused appellants fully corroborated circumstantial
    evidence as the post-mortem report revealed that the
    deceased had died of strangulation which matched with
    the confessional statement of the appellant accused. The
    sexual assault of rape was also established from the
H   post-mortem report which established that the death of
   BASKARAN & ANR. v. STATE OF TAMIL NADU             827

victim was homicidal and she was forcibly subjected to A
rape at the instance of several persons. The evidence of
PW-10 and PW-13, the then Village Administrative Officers
before whom appellant no.1 and 2 gave their extra-judicial
confession, clearly unveiled the case of the prosecution
and this evidence was further corroborated. From the B
evidence of PW-11 and PW-14 even though they were
treated as hostile, they have not been able to establish
the fact that the extra-judicial confession had not been
recorded in their presence. In addition the recovery
memos from appellant no.1 and 2 clearly established the c
charges levelled against them. It further cannot be
overlooked that PW-10 the then Village Administrative
Officer of Kadhili village spoke about the extra-judicial
confession of appellant no.1 and in this regard his
evidence was corroborated by PW-11 who is an
                                                              0
independent person and had no prior enmity with the 1st
accused. Thus, even though this witness had turned
hostile in the chief -examination itself, he spoke about the
confession made by appellant no.1 before the Village
Administrative Officer and his presence there and putting
his signature on the document regarding extra-judicial E
confession cannot be discarded specially when this
extra-judicial confession l~d to the surrender of the
accused who were then arrested and tried. PW-14
although turned hostile, the same was confined only
about the fact of recording confessional statement and F
he could not resile from the same. [Paras 12, 13] [832-E-
H; 833-A-G]
      2. An extra-judicial confession can be relied upon only
if the same is voluntary and true and made in a fit state of
mind. The value of the evidence as to the confession like G
any other evidence depends upon the veracity of the
witness to whom it has been made. The value of the
evidence as to the cqnfession depends on the reliability
 of the witness who gives the evidence. But it is not open
                                                             H
    828     SUPREME COURT REPORTS              [2014] 5 S.C.R.

A to any court to start with the presumption that extra-
  judicial confession is insufficient to convict the accus_ed
  even though it is supported by the other circumstantial
  evidence and corroborated by independent witness which
  was the position in the instant case. The Courts cannot be
8 unmindful of the legal position that if the evidence relating
  to extra-judicial confession is found credible after being
  tested on the touchstone of credibility and acceptability,
  it can solely form the basis of conviction. [Para 14] (833-
  G-H; 834-A-C]
c      3. Merely because one of the witnesses to the
  confessional statement did not support the confession in
  its entirety, the entire confession should not be brushed
  aside as unreliable even though independent witness like
  the Village Administrative Officer had supported .the
D recording of conviction. However, the conviction of the
  appellants was not based merely on the confessional
  statement but also on other substantial evidence relied
  upon by the prosecution viz. recovery of the body, post-
  mortem report matching with confessional statement,
  evidence of other independent witness who corroborated
E the recording of confessional statement in their presence
  and thus did not create doubt about the credibility of the
  prosecution case so as to discard the same. There was no
  infirmity in the judgment and order of the High Court
  holding the appellants guilty and sentencing them
F appropriately. [Para 15 and 16] (834-0-G]
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 121 of 2008.

      From the Judgment & Order dated 09.11.2006 of the High
G Court of Judicature at Madras in Criminal Appeal No. 9 of
  2005.

         Ratnakar Dash, B. Karuna Karan (for S. Gowthaman) for
    the Appellants.
H
     BASKARAN & ANR. v. STATE OF TAMIL NADU                     829


      M. Yogesh Kanna, A. Santha Kumaran for the Respondent.            A

      The Judgment of the Court was delivered by

        GYAN SUDHA MISRA, J. 1. This appeal by special leave
  is directed against the judgment and order dated 09.11.2006
  passed by the High Court of Madras affirming the conviction           8
  and sentence of the first appellant under Section 376 (2) (g),
  302 and 201 l.P.C. awarding sentence for life imprisonment
~ along with Rs. 5,000/- fine, 10 years RI, along with Rs. 5,000/
  - fine and 3 years RI, with a fine of Rs. 2,000/- respectively. The
  Trial Court had awarded identical sentences to Appellant No.          C
  2, who on appeal in the High Court, was acquitted of the offence
  of murder under Section 302 IPC but his conviction and
  sentence under Section 376 l.P.C. was maintained.

     2. The case of prosecution which led to the conviction and         o
 sentence of the appellants summarily stated are as follows:

      The Appellants -A 1 & A2 along with two others had forcibly
 taken the deceased girl to a secluded place on 21.10.1995 at
 about 7.00 p.m., when she was raped and then in course of
 the same transaction, A 1 had strangulated her to death. Further,      E
 with a view to screen the offence, all of them threw the dead
 body to a secluded place in an agricultural field. The body was
 then discovered by the elder brother of the deceased girl, the
 next day. Investigation of the case was thereafter conducted
 which included the post-mortem report of the body of the               F
 deceased, wherein the doctor had opined death due to
 strangulation, injuries on the body, bleeding vaginal rupture.
 However, the vagincil smear didn't reveal any traces of semen.
 The initial investigation didn't reveal the names of the appellants
 and even the witnesses examined didn't offer any clue in this          G
 regard. Thus, there were no eye-witness to the incident in
 support of the prosecution case.

     3. After about 35 days, on 25.11.1995, the appellant No.1
 approached PW10, the village Administrative Officer of Kadhili         H
    830           SUPREME COURT REPOR1S               [2014] 5 S.C.R.


A village whereby he confessed that he along with appellant No.2
  and two others murdered the deceased after raping her and
  offered to surrender. This confession was reduced into writing
  in presence of PW-11 who was there and who signed the same.
  In pursuance to the confessional statement, the 1.0. took him
B to the scene of crime where some earth sample was taken and
  then they went to A1's home, where a dial"}' belonging to the
  deceased was recovered. The next day, on 26.11.1995, A-2
  approached PW-13, the village Administrative Officer of
  Sunderam Palli village and confessed about the crime, in the
c presence of PW-14, who had attested the written confession
  given to PW-13. The accused/appellants were then, committed
  to trial and convicted on the basis of the extra-judicial
  confession. While A-1 had identified A-4, A-2 had identified A-
  3 and thus, they too were arrested. However, later the trial court
  had acquitted A-3 and A-4 and the State did not challenge the
0
  same.

          4. The High Court had to deal with the following two issues:

           (i)     The nature of death of the deceased, whether rape
E                  was committed upon her;

           (ii)    The guilt of the Appellants with regard to the crime
                   on the basis of their extra-judicial confessions,
                   which were given separately to PW-10 and PW-13
                   by A 1 and A-2 respectively.
F
         5. The High Court found on the basis of the post-mortem
    report that the death was caused due to strangulation and that
    the girl's body exhibited all other symptoms of rape except the
    presence of semen in the vaginal swab.
G
      6. The High Court was informed by the counsel of the
  appellants that both the extra-judicial confessions (Ext. 7 by A-
  1 and Ext. 11 by A-2) had striking similarity in their expression
  used thereunder although they were made by two different
H people/accused at two different places; but the court found it
    BASKARAN & ANR. v. STATE OF TAMIL NADU                  831
            [GYAN SUDHA MISRA, J.]
an accidental coincidence as the sequence of events                A
disclosed, was described in words that were commonly used.

     7. However, the defence that was taken was that the two
witnesses PW-11 and PW-14 for A-1 and A-2's confessions
had turned hostile as to the recovery of Diary from A-1's house
and a certain letter from the house of A-2 due to which their      B
evidence was challenged as not credible. However, the High
Court rejected the same on the ground that in case these
witnesses were 'Obliging Witnesses' to the prosecution, they
could've supported the entire prosecution case blindly and not
turned hostile with reference to a particular portion. The High    C
Court therefore relied upon the witnesses' statements with
regard to the confessions that they made.

     8. The High Court, however, granted some relief to
Appellant No.2 by acquitting him from the charge of murder, on     D
the basis of his confessional statement, wherein he had asked
Appellant No.1, at the time of strangulation as to why was he
doing it and hence the High Court held that he had not
participated in the murder and the deceased was strangulated
by A-1 alone, all of a sudden which led to her death.
                                                                   E
     9. We have taken note of the prosecution evidence and
perused the judgments of the Courts below and also heard the
learned counsels at length. The issue before us is whether the
Appellants can be convicted solely on the basis of these two
extra-judicial confessions, which was witnessed by PW-11 and       F
PW-14 who have turned hostile with regard to some portions
of the prosecution evidence.

     10. The High Court, however, granted some relief to the
appellant No. 2 by acquitting him of the charge of murder on       G
the basis of his confessional statement wherein he had asked
appellant No.1 as to why he was committing the act of
strangulation and thus the High Court inferred that he had not
participated in the act of throttling the victim even though the
deceased was killed and was held to have been strangulated
                                                                   H
    832     SUPREME COURT REPORTS                   [2014] 5 S.C.R.


A   by A-1 alone, all of a sudden and hence was pleased to acquit
    A-2 of the charge of murder.

         11. We have carefully perused the evidence led by the
   prosecution as also the reasonings assigned by the judgment
   and order of the courts below and heard learned counsels for
 8
   the parties at length who in substance had submitted that the
   impugned judgment is contrary to law, weight of evidence,
   probabilities and circumstances of the case and the material
   on record. According to his submission, the judgment is based
   on mere surmises and conjectures and is, therefore,
'C unsustainable in law and liable to be set aside. The counsel
   for the appellant further submitted that the conviction could not
   have been based on the confessional statement of the accused
   as the witnesses who were stated to be present at the time of
   recording of confessional statement had turned hostile.
D
        12. However, on a scrutiny of the background and
   circumstance of the matter, we have taken note of the fact and
   find substance in the plea of the prosecution that the accused
   A-1 and A-2 committed rape on the victim one after the other
 E and A-1 thought that that if the victim is allowed to go alive, she
   may expose all of them and, therefore, A-1 throttled the neck
   of the deceased with his hands resulting in her death and on
   noticing this, A-2 questioned him as to why he did like that. Thus,
   even though A-2 had committed rape on the victim, his acquittal
 F under Section 302 IPC but conviction under Section 376 IPC
   was rightly sustained.

        13. In so far as A-1 is concerned, the background of the
   prosecution story cannot be given a go by as the case of the
   prosecution is that the first petitioner/A-1 was insulted by the
 G deceased when he attempted to develop intimacy with her and
   on being insulted by her, A-1 got angry and conspired with his
   friend and committed not only rape on her, but also murdered
   the deceased. Although, there is no eye-witness to this incident,
   the confessional statement of the accused appellants fully
 H corroborates circumstantial evidence as the post-mortem
    BASKARAN & ANR. v. STATE OF TAMIL NADU                    833
            [GYAN SUDHA MISRA, J.]
report revealed that the deceased had died of strangulation          A
which matched with the confessional statement of the appellant
accused. The sexual assault of rape is also established from
the post-mortem report which establishes that the death of
victim Janaki is homicidal and she was forcibly subjected to
rape at the instance of several persons. The evidence of PW-         B
10 and PW-13, the then Village Administrative Officers before
whom the first and second accused gave their extra-judicial
confession, clearly unveils the case of the prosecution and this
evidence was further corroborated. From the evidence of PW-
11 (Radha Krishnan) and_PW-14 (Selva Kumar) even though              c
they were treated as hostile, they have not been able to
establish the fact that the extra-judicial confession had not been
recorded in their presence. In addition the recovery memos
from the 1st accused and the 2nd accused/appellants herein
clearly establishes the charges levelled against them. It further
                                                                     0
cannot be overlooked that PW-10 the then Village
Administrative Officer of Kadhili village speaks about the extra-
judicial confession of the 1st accused Baskaran and in this
regard his evidence w.B.s corroborated by PW-11 (Radha
Krishnan) who is an i!dependent person and had no prior
enmity with the 1st accused. Thus, even though this witness had      E
turned hostile in the chief -examination itself, he spoke about
the confession made by the 1st accused before the Village
Administrative Officer and his presence there and putting his
signature on the document regarding extra-judicial confession
vide Ext. P-7 cannot be discarded specially when this extra-         F
judicial confession led to the surrender of the accused who were
then arrested and tried. PW-14 (Selvakumar) although turned
hostile, the same was confined only about the fact of recording
confessional statement and he could not resile from the same.
                                                                     G
     14. It is no doubt true that this Court time and again has
held that an extra-judicial confession can be relied upon only if
the same is voluntary and true and made in a fit state of mind.
The value of the evidence as to the confession like any other
evidence depends upon the veracity of the witness to whom it         H
    834      SUPREME COURT REPORTS                  [2014) 5 S.C.R.


A has been made. The value of the evidence as to the confession
  depends on the reliability of the witness who gives the evidence.
  But it is not open to any court to start with the presumption that
  extra-judicial confession is insufficient to convict the accused
  even though it is supported by the other circumstantial evidence
B and corroborated by independent witness which is the position
  in the instant case. The Courts cannot be unmindful of the legal
  position that even if the evidence relating to extra-judicial
  confession is found credible after being tested on the
  touchstone of credibility and acceptability, it can solely form the
c basis of conviction.
          15. Having examined the instant case based on the
  aforesaid principle, we are not prepared to accept the plea that
  merely because one of the witnesses to the confessional
  statement did not support the confession in its entirety, the
D entire confession should be brushed aside as unreliable even
  though independent witness like the Village Administrative
  Officer had supported the recording of conviction. Howe'1er, we
  have further taken note of the fact that the conviction of the
  appellants is not based merely on the confessional statement
E but also on other substantial evidence relied upon by the
  prosecution viz. recovery of the body, post-mortem report
  matching with confessional statement, evidence of other
  independent witness who corroborated the recording of
  confessional statement in their presence and thus do not create
F doubt about the credibility of the prosecution case so as to
  discard the same.

       16. We thus do not find any infirmity in the judgment and
  order of the High Court holding the appellants guilty and
G sentencing them appropriately. Consequently, the appeal fails
  and is dismissed. The appellants are on bail. Their bails bonds
  are cancelled and they be taken into custody forthwith for
  serving out remaining part of the sentence.

    Bibhuti Bhushan Bose                             Appeal dismissed
H