Holding

An extra‑judicial confession, being a weak piece of evidence, cannot by itself sustain a conviction unless corroborated by reliable independent evidence, and a trial court’s finding that such confession and associated testimony are untrustworthy is not perverse, thereby precluding appellate interference with an acquittal.

Summary

The appellant was accused of murdering his wife, with the prosecution relying primarily on an extra‑judicial confession he allegedly made to three witnesses and on recovered blood‑stained clothes and a knife. The trial court found the witnesses' testimonies contradictory, disbelieved the confession, and rejected the physical evidence due to lack of a memorandum statement under Section 27 of the Evidence Act and the open nature of the recovery, thereby acquitting the appellant. The High Court reversed this acquittal, holding the confession credible and the physical evidence corroborative, and convicted the appellant under Section 302 of the IPC. On appeal, the Supreme Court held that an extra‑judicial confession is a weak piece of evidence that requires independent, reliable corroboration and that the trial court's assessment of the witnesses and evidence was not perverse or illegal. Consequently, the Court ruled that appellate courts cannot disturb an acquittal unless the lower court's finding is perverse or illegal, quashed the High Court's conviction, and reinstated the trial court's acquittal, ordering the appellant's release.

Issues considered

Whether an extra‑judicial confession, without independent corroboration, can alone sustain a conviction under Section 302 IPC.
Whether the trial court's disbelieving of the confession and associated witness testimony constitutes a perverse or illegal finding permitting appellate interference.
Whether the recovery of blood‑stained clothes and the alleged murder weapon, absent a memorandum statement under Section 27 of the Evidence Act, is admissible as corroboration.
The scope of appellate jurisdiction to interfere with a trial court's acquittal.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302

Subjects

extra-judicial confessioncircumstantial evidenceacquittalappellate jurisdictionburden of proofevidence admissibilityIPC 302

Judgment

20 [2023]
SUPREME COURT 2 S.C.R. 20
REPORTS [2023] 2 S.C.R.

A NIKHIL CHANDRA MONDAL
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 2269 of 2010)
B MARCH 03, 2023
[B. R. GAVAI AND SANJAY KAROL, JJ.]
Evidence – Extra-judicial Confession – Evidentiary value –
Lady found murdered by a sharp cutting weapon – During
investigation, revealed that the appellant-husband of the deceased
C
had confessed before the prosecution witness that he had murdered
the deceased with the murder weapon at that very spot where the
body of the deceased was found – However, the trial court found
the evidence of the witnesses contradictory to each other and not
trustworthy, and acquitted the appellant – In appeal, the High Court
D convicted and sentenced the appellant u/s. 302 – Interference with
– Held: Not called for – However, strong suspicion may be, it cannot
take place of a proof beyond reasonable doubt – Extra–judicial
confession is a weak piece of evidence – Where an extra–judicial
confession is surrounded by suspicious circumstances, its credibility
becomes doubtful and it loses its importance – Trial court found the
E
testimonies of prosecution witnesses not to be reliable so as to base
the conviction solely on the basis of such testimonies – Trial court
disbelieved the recovery of clothes and weapon – Approach adopted
by the trial court was in accordance with law – Unless such a finding
is found to be perverse or illegal/impossible, it is not permissible
F for the appellate Court to interfere with the same – View taken by
the trial court could not be said to be either perverse or illegal/
impossible to warrant interference – Thus, High Court erred in
interfering with the well-reasoned judgment and order of acquittal
passed by the trial court - Penal Code, 1860 - s. 302.
G Allowing the appeal, the Court
Held : 1.1. It is a settled principle of law that however
strong a suspicion may be, it cannot take place of a proof beyond
reasonable doubt. In the light of these guiding principles, we will
have to consider the present case. [Para 11][26-C-D]
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20
NIKHIL CHANDRA MONDAL v. STATE OF WEST BENGAL 21

1.2. The trial court observed that where the prosecution A
case is entirely based on extra–judicial confession and the
prosecution seeks conviction of the accused on that extra–judicial
confession, the evidence of the witnesses before whom the alleged
confessional statement was made, requires a greater scrutiny to
pass the test of credibility. [Para 13][26-E]
B
1.3 The trial court found that the evidence of PWs 10 to 12
were contradictory to each other. The trial court had the benefit
of witnessing the demeanour of these witnesses. It found the
evidence of these witnesses not to be trustworthy. [Para 14][26-
F]
C
1.4 Extra–judicial confession is a weak piece of evidence.
Where an extra–judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance. 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. There is no doubt D
that conviction can be based on extra–judicial confession, but in
the very nature of things, it is a weak piece of evidence. [Para
15][26-G-H; 27-A]
1.5 The trial court found the testimonies of PWs 10 to 12
not to be reliable so as to base the conviction solely on the basis E
of such testimonies. Unless such a finding was found perverse,
an interference therewith would not be warranted. [Para 16][27-
F-G]
1.6 The Division Bench of the High Court has relied on
the recovery of the blood–stained clothes and the weapon which F
is alleged to have been used by the appellant in commission of
the crime. The trial court disbelieved the recovery of clothes
and weapon on two grounds. Firstly, that there was no
memorandum statement of the accused as required under Section
27 of the Evidence Act, 1872 and secondly, the recovery of the G
knife was from an open place accessible to one and all. The
approach adopted by the trial court was in accordance with law.
However, this circumstance which could not have been used, has

H
22 SUPREME COURT REPORTS [2023] 2 S.C.R.

A been employed by the High Court to seek corroboration to the
extra–judicial confession. [Paras 17, 18][27-G; 28-A-B]
1.7 The scope of interference in an appeal against acquittal
is very well crystalised. Unless such a finding is found to be
perverse or illegal/impossible, it is not permissible for the
B appellate Court to interfere with the same. The view taken by
the trial court could not be said to be either perverse or illegal/
impossible to warrant interference. The High Court grossly erred
in interfering with the well–reasoned judgment and order of
acquittal passed by the trial court. Thus, the impugned judgment
and order passed by the High Court convicting the appellant for
C
the offence punishable under Section 302 of the IPC is quashed
and set aside. [Para 19, 22][28-C-F]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Sahadevan and
D Another v. State of Tamil Nadu (2012) 6 SCC 403 :
[2012] 4 SCR 366; Rajesh Prasad v. State of Bihar
and Another (2022) 3 SCC 471 – referred to.
Case Law Reference
[1985] 1 SCR 88 referred to Para 8
E
[2012] 4 SCR 366 referred to Para 15
(2022) 3 SCC 471 referred to Para 20
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
F 2269 of 2010.
From the Judgment and Order dated 15.12.2018 of the High Court
at Calcutta in Govt. Appeal No. 38 of 1987.
Ms. Rukhsana Choudhury, Adv. for the Appellant.
G Ms. Astha Sharma, Srisatya Mohanty, Sanjeev Kaushik,
Ms. Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Bhanu
Mishra, Devvrat Singh, Ms. Muskan Surana, Advs. for the Respondent.

H
NIKHIL CHANDRA MONDAL v. STATE OF WEST BENGAL 23

The Judgment of the Court was delivered by A
B. R. GAVAI, J.
1. The appeal challenges the judgment and order dated
15th December 2008 passed by the High Court at Calcutta in Government
Appeal No. 38 of 1987, thereby reversing the judgment and order dated
31st March 1987 passed by the Additional Sessions Judge, 4th Court, B
Burdwan (hereinafter referred to as “the trial court”), vide which the
trial court had acquitted the appellant for the charge under Section 302
of the Indian Penal Code, 1860 (for short, “IPC”). Vide the impugned
judgment and order, the Division Bench of the High Court convicted the
appellant for the offence punishable under Section 302 of the IPC and C
sentenced him to undergo imprisonment for life and a fine of Rs.2,000/-
and in default of payment of fine, to undergo further imprisonment for a
period of six months.
2. The prosecution case, in brief, as could be gathered from the
material placed on record is thus: D
th
On 11 March 1983, UD Case No. 7/83 was registered at PS
Ketugram that the dead body of an unknown married woman aged about
25 years was lying in a field on the side of the railway track at Ambalgisan
Railway Station. The lady appeared to have been murdered by a sharp
cutting weapon. On the basis of the aforesaid, Police had begun the E
investigation. During investigation, it was revealed that the appellant,
accompanied his wife (the deceased) and their son had gone to attend
the Fullara Mela organised in Lavpur Gram Panchayat and thereafter,
the deceased was alleged to be missing from the said Mela. During the
investigation, it was also revealed that the appellant had confessed before
Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai Ch. Saha F
(PW-12) that he had murdered the deceased with a bhojali (the murder
weapon) at that very spot where the body of the deceased was found.
3. Upon completion of the investigation, a charge-sheet came to
be filed before the Chief Judicial Magistrate, Burdwan under Section
302 of the IPC against the appellant. The case was committed to the G
Court of Sessions. The appellant pleaded not guilty and claimed to be
tried. At the conclusion of the trial, the trial court vide judgment and
order dated 31st March 1987 acquitted the appellant from the charges
levelled against him. Being aggrieved thereby, the State preferred an
appeal before the High Court. By the impugned judgment and order, the
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24 SUPREME COURT REPORTS [2023] 2 S.C.R.

A High Court allowed the appeal and convicted and sentenced the appellant
as aforesaid. Hence, the present appeal.
4. We have heard Ms. Rukhsana Choudhury, learned counsel
appearing on behalf of the appellant and Ms. Astha Sharma, learned
counsel appearing on behalf of the State.
B 5. Ms. Choudhury submits that the High Court has grossly erred
in reversing the well-reasoned judgment and order of acquittal passed
by the trial court. She submits that the trial court had rightly disbelieved
the testimonies of Manick Pal (PW-10), Pravat Kumar Misra (PW-11)
and Kanai Ch. Saha (PW-12) being inconsistent with each other. It is
C therefore submitted that the finding of the trial court disbelieving the
extra-judicial confession alleged to have been made to these three
witnesses could not be said either to be perverse or illegal/impossible.
She further submits that in any case the interference in a finding of
acquittal would not be warranted unless the finding is found to be perverse
or illegal/impossible. She therefore submits that the impugned judgment
D and order is liable to be set aside.
6. Ms. Sharma, on the contrary, submits that the High Court has
rightly found that the extra-judicial confession made before PWs 10 to
12 is trustworthy, reliable and cogent. She therefore submits that the
High Court has rightly reversed the judgment and order of acquittal which
E was recorded disbelieving the cogent and reliable testimonies of these
three witnesses. She further submits that, apart from the extra-judicial
confession, the prosecution has also established the recovery of the blood-
stained clothes and the weapon used by the appellant in commission of
the crime. This circumstance corroborates the testimonies of PWs 10 to
F 12.
7. With the assistance of the learned counsel for the parties, we
have scrutinized the entire evidence.
8. Undisputedly, the present case rests on circumstantial evidence.
The law with regard to conviction in the case of circumstance evidence
G is very well crystalised in the judgment of this Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra1.
9. We may gainfully refer to the following observations of this
Court in the case of Sharad Birdhichand Sarda (supra):

1
H (1984) 4 SCC 116
NIKHIL CHANDRA MONDAL v. STATE OF WEST BENGAL 25
[B. R. GAVAI, J.]

“153. A close analysis of this decision would show that the A
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
It may be noted here that this Court indicated that the B
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 C
Crl LJ 1783] where the observations were made: [SCC para 19,
p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long D
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty, E
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
F
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on circumstantial G
evidence.”
10. It can thus be seen that this Court has held that the circumstances
from which the conclusion of guilt is to be drawn should be fully
established. It has been held that the circumstances concerned “must or
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26 SUPREME COURT REPORTS [2023] 2 S.C.R.

A should” and not “may be” established. It has been held that there is not
only a grammatical but a legal distinction between “may be proved” and
“must be or should be proved”. It has been held that the facts so
established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty. It has been held that the
B
circumstances should be of a conclusive nature and tendency and they
should exclude every possible hypothesis except the one sought to be
proved, and that there must be a chain of evidence so complete so as not
to leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability
C the act must have been done by the accused.
11. It is a settled principle of law that however strong a suspicion
may be, it cannot take place of a proof beyond reasonable doubt. In the
light of these guiding principles, we will have to consider the present
case.
D 12. The prosecution case rests basically on the extra-judicial
confession alleged to have been made by the appellant before Manick
Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai Ch. Saha (PW-
12).
13. The trial court observed that where the prosecution case is
E entirely based on extra-judicial confession and the prosecution seeks
conviction of the accused on that extra-judicial confession, the evidence
of the witnesses before whom the alleged confessional statement was
made, requires a greater scrutiny to pass the test of credibility.
14. The trial court found that the evidence of PWs 10 to 12 were
F contradictory to each other. It is further to be noted that the trial court
had the benefit of witnessing the demeanour of these witnesses. It found
the evidence of these witnesses not to be trustworthy.
15. It is a settled principle of law that extra-judicial confession is
a weak piece of evidence. It has been held that where an extra-judicial
G confession is surrounded by suspicious circumstances, its credibility
becomes doubtful and it loses its importance. It has further been 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. It has been held that
there is no doubt that conviction can be based on extra-judicial confession,
H
NIKHIL CHANDRA MONDAL v. STATE OF WEST BENGAL 27
[B. R. GAVAI, J.]

but in the very nature of things, it is a weak piece of evidence. Reliance A
in this respect could be placed on the judgment of this Court in the case
of Sahadevan and Another v. State of Tamil Nadu2. This Court, in the
said case, after referring to various earlier judgments on the point,
observed thus:
“16. Upon a proper analysis of the abovereferred judgments of B
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 alleged to have been made by the accused: C

(i) The extra-judicial confession is a weak evidence by itself.
It has to be examined by the court with greater care and
caution.
(ii) It should be made voluntarily and should be truthful. D
(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 prosecution
evidence. E
(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
F
fact and in accordance with law.”
16. As already discussed hereinabove, the trial court found the
testimonies of PWs 10 to 12 not to be reliable so as to base the conviction
solely on the basis of such testimonies. Unless such a finding was found
perverse, an interference therewith would not be warranted.
G
17. The Division Bench of the High Court has relied on the
recovery of the blood-stained clothes and the weapon which is alleged
to have been used by the appellant in commission of the crime.

2
(2012) 6 SCC 403 H
28 SUPREME COURT REPORTS [2023] 2 S.C.R.

A 18. The trial court disbelieved the recovery of clothes and weapon
on two grounds. Firstly, that there was no memorandum statement of
the accused as required under Section 27 of the Evidence Act, 1872 and
secondly, the recovery of the knife was from an open place accessible
to one and all. We find that the approach adopted by the trial court was
in accordance with law. However, this circumstance which, in our view,
B
could not have been used, has been employed by the High Court to seek
corroboration to the extra-judicial confession.
19. The scope of interference in an appeal against acquittal is
very well crystalised. Unless such a finding is found to be perverse or
illegal/impossible, it is not permissible for the appellate Court to interfere
C with the same.
20. Recently, a three-Judges Bench of this Court in the case of
Rajesh Prasad v. State of Bihar and Another3 has considered various
earlier judgments on the scope of interference in a case of acquittal. It
held that there is double presumption in favour of the accused. Firstly,
D the presumption of innocence that is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and strengthened by
E the court. It has been further held that if two reasonable conclusions are
possible on the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the trial court.
21. We find that the view taken by the trial court could not be said
to be either perverse or illegal/impossible to warrant interference. The
F High Court has grossly erred in interfering with the well-reasoned
judgment and order of acquittal passed by the trial court.
22. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The impugned judgment and order dated 15th December 2008
G
passed by the High Court at Calcutta in Government Appeal No. 38 of
1987 convicting the appellant for the offence punishable under Section
302 of the IPC is quashed and set aside; and

3
H (2022) 3 SCC 471
NIKHIL CHANDRA MONDAL v. STATE OF WEST BENGAL 29
[B. R. GAVAI, J.]

(iii) The judgment and order dated 31st March 1987 passed by the A
trial court acquitting the appellant from the charges levelled against him
is affirmed.
23. The appellant is directed to be set at liberty forthwith if not
required in any other case.
24. Pending application(s), if any, shall stand disposed of. B

Nidhi Jain Appeal allowed.
(Assisted by : Tamana, LCRA)

C

D

E

F

G

H