Podyami Sukada vs State Of M.P. (Now Chhatisgarh)

home the charge the prosecution has relied on the

extrajudicial confession said to have been made by the

appellant in the Panchayat in the presence of PWs.1 to 4 and

further recovery of weapon by the Investigating Officer at his

instance. Hence what needs to be considered is as to whether

the extrajudicial confession said to have been made by the

appellant in the presence of the witnesses deserves to be

relied. As stated earlier all the witnesses to the extra judicial

confession have been declared hostile by the prosecution.

True, it is that the evidence of the hostile witness is not

altogether wiped out and remains admissible in evidence and

there is no legal bar to base conviction on the basis of the

testimony of hostile witness but as a rule of prudence, the

court requires corroboration by other reliable evidence. In the 7

present case PW.1 Madvi Rama, PW.2 Mangdu, PW.3 Aaita

and PW.4 Lekhan in their evidence had stated that the

meeting was called in the village after the death of the

deceased, but PW.2 Mangdu and PW.4 Lekhan have nowhere

stated that extrajudicial confession was made by the appellant

admitting that he had killed the deceased. PW.1, Madvi Rama

and PW.3, Aaita too have not stated anything about

extrajudicial confession in their examination in chief but after

being declared hostile and cross-examined by the prosecution

they disclosed that the appellant had confessed that he killed

the deceased with the burnt stick as she told him that he was

wandering after consuming liquor. However, when cross-

examined by the defence, again they admitted that no such

confession was made by the appellant. Thus there is complete

sommersault in their evidence.

10. Evidentiary value of extra judicial confession depends

upon trustworthiness of the witness before whom confession is

made. Law does not contemplate that the evidence of an extra

judicial confession should in all cases be corroborated. It is 8

not an inflexible rule that in no case conviction can be based

solely on extrajudicial confession. It is basically in the realm

of appreciation of evidence and a question of fact to be decided

in the facts and circumstances of each case.

11. In the face of the evidence aforesaid, the question falls for

consideration is as to whether the conviction of the appellant

is fit to be sustained only on the basis of the extrajudicial

confession coupled with the recovery of weapon of crime at the

instance of appellant. As stated earlier PW.2, Mangdu and

PW.4, Lekhan neither in the examination-in-chief nor in the

cross-examination had stated anything about the extrajudicial

confession said to have been made by the appellant. PW.1,

Madvi Rama and PW.3, Aaita in the examination-in-chief did

not support the case of the prosecution and after being

declared hostile and cross-examined by the prosecution did

say about the extrajudicial confession by the appellant but

again on cross-examination by the defence they admitted that

no such confession was made by the appellant. Thus the

evidence of both the prosecution witnesses are slippery and 9

from their evidence, it is difficult to hold with certainty that

any extra judicial confession in fact was made by the

appellant. This state of evidence leaves us in doubt and we

are of the opinion that the witnesses of the extrajudicial

confession do not inspire confidence and merely on the ground

of recovery of weapon of crime at the instance of the appellant,

it shall be unsafe to sustain the conviction of the appellant.

Accordingly, we grant appellant the benefit of doubt.

12. In the result, we allow the appeal, set aside the impugned

judgment of conviction and sentence of the appellant.

Appellant is in jail, he be released forthwith, unless required in

any other case.

...................................................J. ( HARJIT SINGH BEDI )

..................................................J. (CHANDRAMAULI KUMAR PRASAD) New Delhi, July 23, 2010.