Read Time: 12 minutes

Synopsis

The Supreme Court has acquitted a man of the charges of murdering his brother's 2.5-year-old son in 2002, noting the doubtful existence of the extra judicial confession, a weak type of evidence generally used as a corroborative link.

A bench of Justices Bela M Trivedi and Satish Chandra Sharma set aside a Karnataka High Court's judgement stating that it has erred in reversing the trial court's order of acquittal and ordered released of Kalinga alias Kaushal. Court noted that evidence made out at best is a case for suspicion and not for conviction.

The court pointed the unnatural conduct of the father, recovery of dead body in the presence of an unreliable witness, contradictions regarding arrest, unnatural prior and subsequent conduct and incredible testimony of the witnesses in support of the last seen theory etc are some of the inconsistencies which strike at the root of the prosecution case. 

The appellant in the case was arrested on November 15, 2002 after he made an extra judicial confession in a drunken state before his brother on November 14, 2002 about 11 days after the complainant's son went missing. Before the police, he allegedly confessed about the commission of offence and throwing the body into the well.

The bench said it is no more res integra that an extra judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence.

"The extent of acceptability of an extra judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra judicial confession," the bench said.

In the case, the bench said it is of utmost relevance to note that the confession was made before complainant, his mother and wife. However, the mother and wife were never examined as witnesses by the prosecution. This glaring mistake raises a serious doubt on the very existence of a confession, or even a statement, of this nature by the appellant, the court said.

The bench further said the confession was followed by two things, arrest of the appellant and recovery of dead body of the deceased. The evidentiary aspects concerning these facts are equally doubtful.

The complainant said he had taken the accused to the police station while the investigation officer he had arrested the accused from his house.

The confessions, one made after a voluntary visit to the police station and the other made after arrest from the house, stand on materially different footings from the point of view of voluntariness. The likelihood of the latter being voluntary is fairly lesser in comparison to the former, the court said.

The court also said it is important to note that there exist serious doubts regarding the identity of the dead body recovered from the well. The description of the deceased given in the complaint did not match with the description of the body recovered.

"Notably, it is a peculiar case wherein the appellant has been convicted for the commission of murder without ascertaining the cause of death in a conclusive manner," the bench said.

The bench also pointed out this court cannot lose sight of the fact that the Trial Court had appreciated the entire evidence in a comprehensive sense and the High Court reversed the view without arriving at any finding of perversity or illegality in the order of the Trial Court. The High Court took a cursory view of the matter and merely arrived at a different conclusion on a re-appreciation of evidence, it said.

"Reversal of an order of acquittal is not to be based on mere existence of a different view or a mere difference of opinion. To permit so would be in violation of the two views theory, as reiterated by this Court from time to time in cases of this nature," the bench said.

The court said the anomaly of having two reasonably possible views in a matter is to be resolved in favour of the accused. For, after acquittal, the presumption of innocence in favour of the accused gets reinforced. 

The court also said the entire case of the prosecution is based on circumstantial evidence. 

"The principles concerning circumstantial evidence are fairly settled and are generally referred as the “Panchsheel” principles. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete," the bench said.

"The inconsistencies in the case of the prosecution are not minor inconsistencies. The prosecution has miserably failed to establish a coherent chain of circumstances. The present case does not fall in the category of a light-hearted acquittal, which is shunned upon in law," the bench said.

In the case, the court said, at best, the evidence of the prosecution makes out a case for suspicion, and not for conviction. It, thus, set aside the order and judgment of the High Court and restored the judgment of the trial court.