New Delhi: A person cannot be convicted on
the basis of mere recovery of weapon or extra-judicial
confession, the Supreme Court has ruled acquitting a life
convict charged with killing a minor after she reportedly
resisted his rape bid.
A bench of justices B S Chauhan and Swatanter Kumar
upheld the appeal of convict S K Yousuf that he was innocent
but erroneously convicted on unreliable circumstantial
evidence and so-called extra judicial confession.
"The nature of the admissibility of facts discovered
pursuant to the statement of the accused under Section 27 of
Indian Evidence Act, 1872 is very limited.
"If an accused deposes to the police officer the fact as
a result of which the weapon with which the crime is committed
is discovered, and as a result of such disclosure, recovery of
the weapon is made, no inference can be drawn against the
accused, if there is no evidence connecting the weapon with
the crime alleged to have been committed by the accused, "
justice Chauhan, writing the judgement, said.
Yusuf was sentenced to life term by the sessions court in
Burdwan, West Bengal for the murder of Sahanara Khatun on
August 31, 1991. The Calcutta High Court confirmed the
sentence. Both the court accepted the prosecution theory that
Yousuf had committed the murder after the victim resisted his
He allegedly killed the victim with a spade and then
buried her body by single-handedly digging her grave.
Though there was no direct evidence, the two lower
courts relied on extra-judicial confession purportedly made by
the convict to Nurul Islam (PW 11), maternal uncle of Khatun
and one Habibar Rahaman (PW.3).
The two claimed Yusuf had confessed to them about his
crime after they caught hold of him seven days after the
The apex court, however, rejected the reasoning on the
ground that the extra-judicial confessions and the testimony
of witnesses who claimed to have seen Yusuf near the
occurrence site did not inspire confidence.
"All the witnesses deposed that the appellant alone
was seen near the place of occurrence with spade as he had
gone there for catching the fish. Thus, there is no evidence
to the extent that the deceased and appellant were seen
together at the place of occurrence or nearby the same in
close proximity of time.
"The court, while dealing with a circumstance of
extra-judicial confession, must keep in mind that it is a very
weak type of evidence and require appreciation with great
"Extra-judicial confession must be established to be
true and made voluntarily and in a fit state of mind. The
words of the witness must be clear, unambiguous and clearly
convey that the accused is the perpetrator of the crime," the
The apex court said the trial judge and the high
court had drawn an erroneous inference against Yusuf since he
had absconded from the village for seven days after the
"It is a settled legal proposition that in case a
person is absconding after commission of offence of which he
may not even be the author, mere absconding of a person cannot
be treated as a circumstance to be sufficient enough to draw
an adverse inference against him as it would go against the
doctrine of innocence."
"It is quite possible that he may be running away
merely being suspected, out of fear of police arrest and
harassment," the bench said.
According to the apex court, though conviction can be
based solely on circumstantial evidence, courts must bear in
mind that facts so established should be consistent only with
the guilt of the accused.
"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,
the apex court said.
Further, the bench said that in the present case there
was no medical evidence about the sexual assault on the
"Therefore, it merely remained the guesswork of the
people at large. Mere imagination that such a thing might have
happened is not enough to record conviction.
"In fact, nobody had ever seen the deceased at the
place of the occurrence. Digging the earth by a single person
to the extent that a dead body be covered by earth requires a
considerable time and there was a a possibility that during
such period somebody could have seen the person indulging in
any of these activities, though no evidence is there to that
extent, the bench added.