PANCHOversusSTATE OF HARYANA

                   [2011] 12 S.C.R. 1173


                        PANCHO                              A
                            V.
                   STATE OF HARYANA
            (Criminal Appeal No.1050 of 2005)
                   OCTOBER 20, 2011
                                                            B
 [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

    PENAL CODE, 1860:

     ss.302, 302134 and 392 - Four accused stated to have c
caused death of a tractor owner and taken away his tractor -
Five months later extra-judicial confession stated to have
been made by one of the accused - Three accused arrested
and fourth died meanwhile - A country made pistol and some
parts stated to have been recovered from the accused - o
Conviction by trial court - Life imprisonment to two accused
and sentence of death awarded to the accused who was stated
to have shot at the deceased - High Court commuting the
death sentence to life imprisonment - Appeals by two
accused - Held: The extra-judicial confession made by one E
of the accused is the main plank of prosecution case - Five
months delay in the extra-judicial confession creates a doubt
about its credibility - Besides, the said confession was made
to a person who resides in a different village 35-40 kms away
from accused's village and had no intimacy with the accused F
concerned - There is discrepancy as to who shot at the
deceased - Further, the accused, in his statement u/s. 313
CrPC denied to have made the said confessional statement
- This further makes a dent in the extra-judicial confession -
There being no credible evidence to upheld the conviction,
the impugned judgments and orders are set aside - Evidence G
Act, 1872 - ss. 3 and 30 - Investigation - Recovery of
incriminating articles.
               •
                           1173                             H
    1174    SUPREME COURT REPORTS                [2011] 12 S.C.R.


A       EVIDENCE ACT, .1872:

       ss. 3 and 30 - Extra-judicial confession of a co-accused
  - Evidentiary value of - Held: In dealing with a case against
  an accused, the court cannot start with the confession of a co-
8 accused; it must begin with other evidence adduced by the
  prosecution and after it has formed its opinion with regard to
  the quality and effect of the said evidence, then it is
  permissible to turn to the confession in order to receive
  assurance to the conclusion of guilt which the judicial mind
C is about to reach on the said other evidence - In the instant
  case, except the evidence of alleged belated recovery of
  certain articles, which have been found to be doubtful, there
  is no other evidence on record to connect the accused to the
  offence - Therefore, he cannot be convicted on the basis of
  the alleged extra-judicial confession of the co-accused -
0 Penal Code, 1860 - ss. 302 and 392.

        INVEST/GA TION:

        Incriminating articles recovered five months after the
E incident at the instance of accused - Held: The brother of the
  deceased has signed the discovery statements of all the
  accused - Articles which are stated to have been discovered
  are easily available in the market - Belated discovery of these
  articles raises a question about their intrinsic evidentiary value
F - The recovery of country made pistol is made more than
  about six months after the date of incident - The prosecution
  has not led any evidence to show as to in whose custody this
  pistol was during the period of six months after the incident -
  Accused, in his statement u/s. 313 Cr.P.C. has denied that
  any such recovery was made from him - The evidence
G relating to discovery of these articles must, therefore, be
  rejected - Penal Code, 1860 - ss. 302 and 392.

       Accused A-1, A-2 and A-3 were pro~ecuted for an
  offence punishable u/s 396 IPC. According to the
H prosecution case, as stated in the FIR lodged by PW 1,
                •

          PANCHO v. STATE OF HARYANA                 1175


on 7.2.1999, his brother 'KS' left the house for the Sugar   A
Mill on his tractor in order to bring back two trolleys
which had been parked outside the Sugar Mill; that on
8.2.1999 at about 7.00 a.m., information was received that
the dead body of 'KS' was lying in a pool of blood in the
fields 10 feet away from the road; that both the trolleys    B
were parked on the road side but the tractor was not
there; that some unknown persons had shot the said
'KS' dead and taken away the tractor. On 31.7.1999, A-1
was said to have approached PW 4, an ex-member of
Panchayat, and told him that he along with A-2, A-3 and      c
the fourth accused (who died later), went on a truck; A-2
fired a shot from a country made pistol at 'KS'; A-3
stopped the tractor and threw the dead body in a wheat
field; they left the trolley and took away the tractor to
accused 'B' (absconding) and asked him to sell the           0
tractor. However, as the tractor could not be sold, they
removed some of its parts and teft it on the road. A-1 was
produced before the Inspector of Police (PW24). He was
arrested and interrogated and on his disclosure
statement and at the instance of the fourth accused,
some parts of the tractor were recovered. On 16.8.1999,      E
PW 24 arrested A-2 and recovered a country made postol
from him. On 25.9.1999, A-3 was arrested. The fourth
accused died after the charge had been framed. The trial
court found that only 4 persons had participated in the
crime and, as such, convicted A-2 u/s 302 IPC and A-1 and    F
A-3 u/s 302/34 IPC. A-2 was sentenced to death; whereas
A-1 and A-3 were awarded life sentence. All the three were
further convicted and sentenced to 10 years RI u/s 392
IPC. The High Court interfered only to the limited extent
that it commuted the death sentence of A-2 to                G
imprisonment for life. A-1 and A-2 filed the appeals.

    Allowing the appeals, the Court
    HELD: 1.1. The extra-judicial confession made by A- H
    1176    SUPREME COURT REPORTS              [2011] 12 S.C.R.


A 1 is the main plank of the prosecution case. It is true that
  an extra-judicial confession can be used against its
  maker, but as a matter of caution, courts look for
  corroboration to the same from other evidence on record.
  [para 1OJ [1183-C-D]
B
       Gopa/ Sah v. State of Bihar (2008) 17 SCC 128 -
  referred to

         1.2. In the instant case, the incident is stated to have
    occurred in the night intervening 7/2/1999 and 8/2/1999.
C   About five months later, on 31/7/1999, A1 is stated to have
    made a confession. This delay creates a doubt about its
    credibility. Besides, PW-4 before whom A1 is stated to
    have confessed, in his evidence has stated that his
    village is about 35 to 40 k.m. from the village of A1 and
D   none of his relatives stay in that village. He has stated
    that he knew A1; that he had come to his village at about
    7.30 to 8.00 a.m. and stayed with him for 2.00 to 2.30
    hours. It does not stand to reas "n that A 1 would go
    voluntarily to PW-4, who stayed in another village which
E   is about 35 to 40 k.m. away from his village and make a
    confessional statement to him. The prosecution evidence
    does not indicate that A1and PW-4 knew each other
    intimately. Therefore, the prosecution case that A1 made
    any extra-judicial confession to PW-4 cannot be
F   accepted. Further, PW-4 stated that A1 had confessed
    that A2 had shot dead deceased 'KS' with country made
    pistol. PW-24, the Inspector of Police, has stated that A1
    confessed that they had shot dead the decea$ed. He
    does not say that A1 told him that A2 had fired at the
G   deceased. A1, in his statement recorded u/s 313 CrPC,
    has denied that he made any such statement. This
    retraction further makes a dent in the alleged extra-judicial
    confession. [para 11) [1183-F-H; 1184-A-D]

        2.1. A2 was arrested on 16/8/1999. According to the
H
           PANCHO v. STATE OF HARYANA                  1177


prosecution, his search resulted in recovery of a country A
made pistol (Ex-P/12) of .315 bore. The recovery of
country made pistol is made more than about six months
after the date of incident. The prosecution has not led any
evidence to show as to in whose custody this pistol was
during the period of six months after the incident. A-2 in B
his statement recorded u/s. 313 Cr.P.C. has denied that
any such recovery was made from him. Even assuming
that the recovery is proved, in the absence of any other
cogent, it cannot be held that it is sufficient to establish
that A2 caused the fatal firearm injury to deceased with C
the said pistol. [para 12] [1184-E-H; 1185-A]

     2.2. The prosecution has relied on certain other
discoveries made at the instance of the accused. These
discoveries are made five months after the incident and
                                                               0
significantly, PW-15 who is the brother of the deceased,
is stated to be present when the discoveries were
effected and all articles are identified by him. Pertinently,
he has signed the discovery statements of all the
accused. The articles which are stated to have been
discovered are easily available in the market. Belated E
discovery of these articles raises a question about their
intrinsic evidentiary value. Besides, if as contended by the
prosecution, the accused wanted to sell parts of the
tractor, it is difficult to believe that they would preserve -
them till 1/8/1999. The evidence relating to discovery of F
these articles must, therefore, be rejected. [para 13] [1185-
B-F]

       3.1. As against A2, the prosecution is relying mainly
  on the extra-judicial confessional statement of A1. G
- However, A1 retracted his confession. This Court in the
  case of Haricharan Kurmi* clarified that though
  confession may be regarded as evidence in generic
  sense because of the provisions of s. 30 of the Evidence
  Act, the fact remains that it is not evidence as defined in H
    1178    SUPREME COURT REPORTS               [2011] 12 S.C.R.

A s.3 thereof. Therefore, in dealing with a case against an
  accused, the court cannot start with the confession of a
  co-accused; it must begin with other evidence adduced
  by the prosecution and after it has formed its opinion with
  regard to the quality and effect of the said evidence, then
B it is permissible to turn to the confession in order to
  receive assurance to the conclusion of guilt which the
  judicial mind is about to reach on the said other evidence.
  [para 11, 14 and 16] (1184-C-D; 1185-G; 1187-0-E]

C       * Haricharan Kurmi v. State Bihar 1964 SCR 623 =AIR
    1964 SC 1184; Kashmira Singh v. The State of Madhya
    Pradesh, 1952 SCR 526 :::: AIR 1952 SC 159 - referred to

       Bhuboni Sahu v. The King 76 Indian Appeals 147;
    Emperor v. La/it Mohan Chukerbutty, 38 Cal. 559 - referred
D   to
       3.2. In the case on hand, so far as A2 is concerned,
  except the evidence of alleged belated discovery of
  certain articles at his instance, which have already been
E found to be doubtful, there is no other evidence on record
  to connect him to the offence in question. Therefore, he
  cannot be convicted on the basis of the alleged extra-
  judicial confession of co-accused A1, which is also not
  credible. [para 17] [1187-F-H]

F     4. Once the extra-judicial confession stated to have
  been made by A1 is obliterated and kept out of
  consideration, his conviction also cannot be sustained
  because the alleged discovery of articles at his instance
  cannot be relied upon. There is thus, no credible
G evidence to uphold the conviction of A1. In this view of
  the matter, the impugned judgments and orders are set
  aside. [para 17 and 18] [1187-F-H; 1188-A-B]
                       Case Law Reference:
H        (2008) 11 sec 128        referred to           para 10
           PANCHO v. STATE OF HARYANA                     1179


    1952 SCR 526                 referred to         para 15     A

    76 Indian Appeals 147        referred to         para 15
    38 Cal. 559                  referred to         para 15

    1964 SCR 623                 referred to         para 16
                                                                 B
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1050 of 2005.

    From the Judgment & Order dated 3.5.2005 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal       c
No. 854-DB of 2004.
                             WITH
Crl. Appeal No. 1222 of 2005.
      U.U. Lalit, (A.C.), S.R. Sharma (for S. Srinivasan), Dr.
Vipin Gupta, Rajeev Gaur 'Naseem' (for Kamal Mohan Gupta) D
for the appearing parties.

    The Judgment of the Court was delivered by

     (SMT.) RANJANA PRAKASH DESAI, J. 1. These two E
appeals, by special leave, can be disposed of by a common
judgment as they arise out of the same facts and challenge the
same judgment and order da.ted 3/5/2005 of the Punjab and
Haryana High Court. Criminal Appeal No.1050 of 2005 is filed
by original accused 2 - Pancho and Criminal Appeal No.1222 F
of 2005 is filed by original accused 1 - Pratham. For the sake
of convenience, original accused 1 - Pratham is referred to as
"A 1-Pratham", original accused 2 - Pancho is referred to as
"A2-Pancho" and original accused 3 - Gajraj is referred to as
"A3-Gajraj".
                                                               ···G
    2. A 1-Pratham, A2-Pancho and A3-Gajraj were tried by the
Additional Sessions Judge, Faridabad in Sessions Case No.40
of 11.12.2002 I 30.11.1999 for offence punishable under
Section 396 of the Indian Penal Code (for short, "the IPC").
                                                                 H
     1180    SUPREME COURT REPORTS              [2011] 12 S.C.R.


A.   According to the prosecution, two more persons were involved
     in the offence in question viz. Shishu Ram @ Shishu, who
     expired after the charge was framed and one Bhago, who is
     absconding. He is declared absconder.

B      3. Shortly stated the case of the prosecution is that PW-1
  Jagat Singh, brother of deceased Kartar Singh lodged FIR (Ex-
  PA) on 8/2/1999 at 8.40 a.m. with PW-12 ASI Keshav Ram at
  Sadar Palwal, Faridabad. PW-1 Jagat Singh reported that on
  7/2/1999 deceased Kartar Singh had left their house for the
C Sugar Mill, Palwal. He drove his own tractor. He was to bring
  back two trolleys of sugar cane which were already parked
  outside the Sugar Mill. PW-1 Jagat Singh further reported that
  on 8/2/1999 at about 7.00 a.m., they were informed that the
  dead body of Kartar Singh was lying in a pool of blood at a
  distance of 10 feet from the road in the field of PW-1 Jagat
D Singh, a resident of Gopalgarh. Both the trolleys were parked
  cm the road side but the tractor was not at the spot. PW-1 Jagat
  Singh further reported that some unknown persons opened fire
  at deceased Kartar Singh due to which he sustained injuries
  on his waist and succumbed to the said injuries. PW-1 Jagat
E Singh further reported that the said unknown persons had taken
  away the tractor.

       4. It appears that till 31/7/1999, the investigating agency
  did not make any progress. According to the prosecution, on
F 31/7/1999, A1-Pratham approached PW-4 Nathi Singh, Ex-
  Member of Panchayat and told him that on 5/2/1999 when he,
  accused-Shishu and A3-Gajraj were sitting in the house of A1-
  Pratham, A3-Gajraj told them that they were in need of money.
  A2-Pancho told them that he had a country made pistol. They
G discussed about the Sugar Mill at Bamnikhera where some
  farmers came with new tractors. They planned a robbery. They
  went on a truck to Bamnikhera at 7.00 p.m. where A3-Gajraj
  and accused-Shishu had a conversation with deceased Kartar
  Singh. When the tractor was unloaded, both of them
H
              PANCHO v. STATE OF HARYANA                       1181
              [RANJANA PRAKASH DESAI, J.]

   accompanied deceased Kartar Singh in his tractor. Accused-            A
   Shishu and A 1-Pratham were standing outside. When the
   tractor traveled a distance of two killas, A3-Gajraj gave a signal.
  to A2-Pancho, .who fired a shot at deceased Kartar Singh from
   his country made pistol. A3-Gajraj stopped the tractor, removed
  the dead body of deceased Kartar Singh and threw it in a wheat         B
   field. They left the tractor trolley at the spot and ran away with
  the tractor so as to reach Paramendra via Barsana. A 1-
   Pratham is further stated to have told PW-4 Nathi Singh that
  they took the tractor to accused-Bhago and narrated the entire
  incident to him and asked him to sell the tractor and thereafter       c
  they went back to their house. A 1-Pratham is further stated to
  have told PW-4 Nathi Singh that they came back after a couple
  of days and came to know that the tractor could not be sold.
  Therefore, they removed some parts of the tractor and left it on
  the road near Bharatpur. As desired by A1-Pratham, he was                  .
                                                                         0
  produced before PW-24 Inspector Raghbir Singh on 31/7/1999
  by PW-4 Nathi Singh. PW-24 Inspector Raghbir Singh arrested
  A 1-Pratham and interrogated him. According to PW-24
  Raghbir Singh, during interrogation, A 1-Pratham told him that
  about 3-4 months back, he along with accused Shishu an_d
  other accused had snatched a tractor,· shot the driver of that         E
  tractor, thrown his body in the field and taken the tractor with
  them. On the same day, accused-Shishu was arrested by PW-
  24 Raghbir Singh.

        5. According to the prosecution, on 1/8/1999, A1-Pratham         F
   disclosed that he had left the tractor on the road near Bharatpur,
- ·concealed some parts, which had come to his share i.e. the
   seat cover, one thin rod along with bumper in his field. In
   pursuance to this disclosure statement, the said articles were
   recovered at the instance of A1-Pratham. A battery box with           G
   one tool box is stated to have been recovered at the instance
   of accused-Shishu. On 16/8/1999, PW-24 Inspector Raghbir
   Singh arrested A2-Pancho near Dabchick on the basis of
   suspicion. His personal search led to recovery of a country
                                                                         H
    1182    SUPREME COURT REPORTS               [2011] 12 S.C.R.


A   made pistol of .315 bore (Ex-P12) which was taken into
    possession vide recovery memo (Ex-PL). It was attested by
    PW-15 Samunder Singh, brother of deceased Kartar Singh and
    one Hardev. On a statement made by A2-Pancho, the police
    also discovered an iron pipe and three pieces of rope from
B   under stones at Village Barsana which were identified by PW-
    15 Samunder Singh to be that of their tractor. They were taken
    into possession vide recovery memo (Ex-PM/1). On 25/9/1999,
    A3-Gajraj was arrested and at his instance, three pieces of
    ropes are stated to have been recovered.
c         6. Though the accused were charged under Section 396
    of the IPC, learned Sessions Judge was of the view that
    conviction of the three accused cannot be recorded under
    Section 396 of the IPC as only four persons had participated
    in the crime. Learned Sessions Judge was of the view further
D   that A2-Pancho could be convicted under Section 302 of the
    IPC simplicitor and A 1-Pratham and A3-Gajraj could be
    convicted under Section 302 read with Section 34 of the IPC.
    According to him, all the accused were also liable to be
    convicted under Section 392 of the IPC. So far as A2-Pancho
E   is concerned, learned Sessions Judge sentenced him to death
    for offence under Section 302 of the IPC as according to him,
    it was a heinous crime which would have wide ramification on
    the life of agricultural community. He sentenced A1-Pratham and
    A3-Gajraj to undergo imprisonment for life under Section 302
F   read with Section 34 of the IPC. All the accused were
    sentenced to undergo rigorous imprisonment for 10 years for
    the offence under Section 392 of the IPC.

        7. While dealing with the reference under Section 366 of
G the Criminal Procedure Code (for short, "the Code") and the
  criminal appeal filed by A 1-Pratham and A3-Gajraj, the High
  Court commuted the sentence of death imposed on A2-Pancho
  to imprisonment for life. The High Court confirmed the sentence
  of life imprisonment imposed on A1-Pratham and A3-Gajraj.
  The High Court maintained the sentence imposed on the
H
             PANCHO v. STATE OF HARYANA                      1183
             [RANJANA PRAKASH DESAI, J.]

accused for offence under Section 392 of the IPC.                    A

    8. We have heard counsel for the parties. We also
requested Mr. Lalit, learned senior counsel to assist us. In
deference to our request, Mr. Lalit has, as usual, ably assisted
us.
                                                                     8
     9. There is no dispute about the fact that deceased Kartar
Singh died on account of firearm injuries. Evidence of PW-17
Dr. Jagmohan Mittal, who did the postmortem on the dead body
of deceased Kartar Singh is clear on that point.
                                                                     c
      10. Extra-judicial confession made by A1-Pratham is the
 main plank of the prosecution case. It is true that an extra-
judicial confession can be used against its maker, but as a
matter of caution, courts look for corroboration to the same from
other evidence on record. In Gopa/ Sah v. State of Bihar1 , this     D
court while dealing with an extra-judicial confession held that
an extra-judicial confession is on the face of it, a weak evidence
 and the courts are reluctant, in the absence of chain of cogent
circumstances, to rely on it for the purpose of recording a
conviction. We must, therefore, first ascertain whether extra-       E
judicial confession of A1-Pratham inspires confidence and then
find out whether there are other cogent circumstances on
record, to support it.

     11. We have already referred to the evidence of PW-4
Nathi Singh before whom A 1-Pratham is stated to have                F
confessed that A2-Pancho had shot dead deceased Kartar
Singh with country made pistol. PW-24 Inspector Raghbir Singh
has stated that A1-Pratham confessed that they had shot dead
deceased Kartar Singh. He does not say that A1-Pratham told
him that A2-Pancho had fired at deceased Kartar Singh. The           G
incident is stated to have occurred in the night intervening 7/2/
1999 and 8/2/1999. About five months later, on 31/7/1999, A1-
Pratham is stated to have made a confession. This delay

1.   (2008) 17 sec 128.
    1184     SUPREME COURT REPORTS                 [2011) 12 S.C.R.


A creates a doubt about its credibility. Besides, in his evidence
  PW-4 Nathi Singh has stated that his village is about 35 to 40
  k.m. from the village of A1-Pratham and none of his relatives
  stay in that village. He has stated that he knew A1-Pratham;
  that he had come to his village at about 7.30 to 8.00 a.m. and
B stayed with him for 2.00 to 2.30 hours. It does not stand to
  reason that A1-Pratham would go voluntarily to PW-4 Nathi
  Singh, who stayed in another village which is about 35 to 40
  k.m. away from his village and make a confessional statement
  to him. The prosecution evidence does not indicate that A 1-
C Pratham and PW-4 Nathi Singh knew each other intimately. It
  is, therefore, difficult to accept the prosecution case that A1-
  Pratham made any extra-judicial confession to PW-4 Nathi
  Singh. It may be stated here that in his statement recorded under
  Section 313 of the Code, A1-Pratham has denied that he made
  any such statement. This retraction further makes a dent in the
0
  alleged extra-judicial confession.
        12. A2-Pancho was arrested 011 16/8/1999 near Dabchick
  Modale. According to the prosecution, his search resulted in
  recovery of a country made pistol (Ex-P/12) of .315 bore. The
E recovery of country made pistol is made more than about six
  months after the date of incident. It is true that the report of FSL
  (Ex-PT) states that the country made pistol marked W/1 was
  test fired and that bullet marked BC/1 taken out from the body
  of deceased Kartar Singh had been fired from the said country
F made pistol. The report also states that the holes on the clothes
  of deceased Kartar Singh which were sent for examination, had
  been caused by bullet projectiles. We are, however, of the
  opinion that, on the basis of this report, it is difficult to come to
  a conclusion that A2-Pancho was responsible for the firearm
G injury caused to deceased Kartar Singh. The prosecution has
  not led any evidence to show as to in whose custody this pistol
  was during the period of six months after the incident. In his
  statement recorded under Section 313 of the Code, A2-Pancho
  has denied that any such recovery was made from him. Even
H
            PANCHO v. STATE OF HARYANA                        1185
            [RANJANA PRAKASH DESAI, J.]

assuming that the recovery is proved, we are unable to hold in A
the absence of any other cogent evidence that it is sufficient to
establish that A2-Pancho caused the fatal firearm injury to
deceased Kartar Singh with the said pistol.

      13. Apart from the pistol which is stated to have been           B
recovered from A2-Pancho, the prosecution has relied on
certain other discoveries made at the instance of the accused.
On 1/8/1999, pursuant to the statement made by A1-Pratham,
one bumper, one patli and one seat cover are stated to have
been discovered. PW-15 Samunder Singh, brother of the
deceased identified the said articles to be that of their tractor.     C
On 16/8/1999 at the instance of A 1-Pancho, three pieces of
ropes along with an iron pipe are stated to have been
discovered. PW-15 Samunder Singh identified them as parts
of their tractor. These discoveries are made five months after
the incident and significantly, PW-15 Samunder Singh, who is           D
the brother of the deceased, is stated to be present when the
discoveries were effected and all articles are identified by him,
Pertinently, he has signed the discovery statements of all the
accused. Articles which are stated to have been discovered are
easily available in the market. There is nothing special about         E
them. Belated discovery of these articles raises a question about
their intrinsic evidentiary value. Besides, if as contended by the
prosecution, the accused wanted to sell parts of the tractor, it
is difficult to believe that they would preserve them till 1/8/1999.
The evidence relating to discovery of these articles must,             F
therefore, be rejected.

     14. As against A2-Pancho, the prosecution is relying mainly
on the extra-judicial confessional statement of A1-Pratham. The
question which needs to be considered is what is the evidentiary G
value of a retracted confession of a co-accused?

    15. The law on this point is well settled by catena of
judgments of this court. We may, however, refer to only two
judgments to which our attention is drawn by Mr. Lalit, learned
                                                                       H
    1186       SUPREME COURT REPORTS              [2011] 12 S.C.R.

A senior counsel. In Kashmira Singh v. The State of Madhya
  Pradesh 2, referring to the judgment of the Privy Council in
  Bhuboni Sahu v. The King 3, and observations of Sir Lawrence
  Jenkins in Emperor v. La/it Mohan Chukerbutty4, this court
  observed that proper way to approach a case involving
s confession of a co-accused is, first, to marshal the evidence
  against the accused excluding the confession altogether from
  consideration and see whether, if it is believed, a conviction
  could safely be based on it. If it is capable of belief
  independently of the confession, then it is not necessary to call
c the confession in aid. This court further noted that cases may
  arise where the judge is not prepared to act on the other
  evidence as it stands even though, if believed, it would be
  sufficient to sustain a conviction. In such an event, the judge may
  call in aid the confession and use it to lend assurance to the
  other evidence and thus fortify himself in believing what without
0
  the aid of the confession, he would not be prepared to accept.

        16. In Haricharan Kurmi v. State Bihaf', the Constitution
  Bench of this court was again considering the same question.
  The Constitution Bench referred to Section 3 of the Evidence
E Act and observed that confession of a co-accused is not
  evidence within the meaning of Section 3 of the Evidence Act.
  It is neither oral statement which the court permits or requires
  to be made before it as per Section 3(1) of the Evidence Act
  nor does it fall in the category of evidence referred to in Section
F 3(2) of the Evidence Act which covers all documents produced
  for the inspection of the court. This court observed that even
  then Section 30 provides that a confession may be taken into
  consideration not only against its maker, but also against a co-
  accused. Thus, though such a confession may not be evidence
G as strictly defined by Section 3 of the Evidence Act, it is an
  element which may be taken into consideration by the criminal
    2.   AIR 1952 SC 159.
    3.   76 Indian Appeals 147.
    4.   38 Cal. 559.
H   5.   AIR 1964 SC 1184.
            PANCHO v. STATE OF HARYANA                     1187
            [RANJANA PRAKASH DESAI, J.]

 court and in that sense, it may be described as evidence in a A
 non-technical way. This court further observed that Section 30 ·
 merely enables the court to take the confession into account. It
 is, not obligatory on the court to take the confession into
account. This court reiterated that a confession cannot be
treated as substantive evidence against a co-accused. Where B
the prosecution relies upon the confession of one accused
against another, the proper approach is to consider the other
evidence against such an accused and if the said evidence
appears to be satisfactory and the court is inclined to hold that
the said evidence may sustain the charge framed against the        c
said accused, the court turns to the confession with a view to
assuring itself that the conclusion which it is inclined to draw
from the other evidence is right. This Court clarified that though
confession may be regarded as evidence in generic sense
because of the provisions of Section 30 of the Evidence Act, 0
the fact remains that it is not evidence as defined in Section 3
of the Evidence Act. Therefore, in dealing with a case against
an accused, the court cannot start with the confession of a co-
accused; it must begin with other evidence adduced by the
prosecution and after it has formed its opinion with regard to E
the quality and effect of the said evidence, then it is permissible
to turn to the confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about to reach on
the said other evidence.

     17. Applying the above principles to the case on hand, we     F
find that so far as A2-Pancho is concerned, except the
evidence of alleged belated discovery of certain articles at his
instance, which we have already found to be doubtful, there is
no. other evidence on record to connect him to the offence in
question. When there is no other evidence of sterling quality on   G
record establishing his involvement, he cannot be convicted on
the basis of the alleged extra-judicial confession of the co-
accused A1-Pratham, which in our opinion, is also not credible.
Once A1-Pratham's extra-judicial confession is obliterated and
kept out of consideration, his conviction also cannot be           H
    1188      SUPREME COURT REPORTS              (2011] 12 S.C.R.


A sustained because we have come to the conclusion that the
  alleged discovery of articles at his instance cannot be relied
  upon. There is thus, no credible evidence to persuade us to
  uphold the conviction of A 1-Pratham.

8       18. In view of the above, we set aside the impugned
    judgment and order. A1-Pratham and A2-Pancho are on bail.
    Their bail bonds stand discharged.

           19. Appeals are disposed of in the aforestated terms.

C R.. P.                                         Appeals allowed.