Full Judgment Text
2026 INSC 85
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.3738 of 2023
Bernard Lyngdoh Phawa
...Appellant
Versus
The State of Meghalaya
...Respondent
W I T H
Criminal Appeal No. of 2026
[@Special Leave Petition (Crl.) No.1798 of 2025]
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. An enquiry, commenced with a missing person
complaint, led, to the arrest of the appellants, discovery of
the body; exhumed from a graveyard, recovery of a rope;
allegedly used to strangulate the victim, allegation of
Signature Not Verified
ransom calls received and recovery of material possessions
Digitally signed by
Deepak Guglani
Date: 2026.01.27
15:47:09 IST
Reason:
of the victim from the house of one of the accused and a
Page 1 of 26
Crl.A.No.3738 of 2023 etc.
mobile phone from a witness. These coupled with the last
seen theory; as purportedly stated by the witnesses,
resulted in the prosecution being lodged before the Trial
Court. The Trial Court after examining the evidence found it
to be not sufficient to enter a finding of guilt, resulting in the
acquittal of the accused. The High Court on an appeal by the
State found that the five golden principles as enunciated in
Sharad Birdhichand Sarda v. State of Maharashtra
1
adequately satisfied, bringing forth a conclusion only of a
hypothesis of guilt excluding all possible hypothesis of
innocence. There is no weak link, and the chain of
circumstances is complete was the finding of the High
Court. The High Court reversed the judgment of the Trial
Court but found no kidnapping as charged, all the same
finding the accused guilty of murder (Section 302 of the
Indian Penal Code, 1860
2
) and causing disappearance of
evidence (Section 201 of the IPC).
3. We are, in the above appeals, confronted with the
divergence of opinion as expressed by the Trial Court and
1
(1984) 4 SCC 116
2
For brevity ‘the IPC’
Page 2 of 26
Crl.A.No.3738 of 2023 etc.
the High Court respectively. We heard Sh. Subhro Sanyal,
Advocate-on-Record and Sh.Ajay Sabharwal, Advocate
appearing for the two appellants and Sh. Avijit Mani
Tripathi, Advocate-on-Record appearing for the State.
4. Learned counsel appearing for the accused argued
that a well-reasoned judgment of acquittal was reversed by
the High Court without any compelling reason and without
recording a clear finding as to whether the view taken by
the Trial Court was a possible view, bringing forth a
reasonable doubt. The trite principle that an acquittal by
one Court reinforces the presumption of innocence
available to the accused, not liable to be displaced lightly,
was thrown to the winds. The High Court has substituted its
own inferences on the evidence led. There is no valid last
seen theory coming out of the evidence and there is no
clarity as to the exact time of death. Neither was the
recovery of the murder weapon (rope) proved, nor was it
found to have any connection with the crime, the traces of
which having not been detected in a forensic analysis. The
allegation of ransom calls having been made to the father of
the victim was not at all established. The confessional
Page 3 of 26
Crl.A.No.3738 of 2023 etc.
statements are full of inconsistencies, not made voluntarily
and does not contain any inculpatory statements. Further,
there can be no conviction based merely on the
confessional statement, which also was retracted. The
cumulative effect of the lapses in investigation and the
complete absence of incriminating circumstances; the
former of which was specifically noticed by the High Court,
ought to have persuaded the High Court to not disturb the
acquittal by the Trial Court.
5. Learned counsel appearing for the State would,
however, vehemently put forth the incriminating
circumstances coming out from the last seen theory and
recovery of the weapon and the other possessions of the
victim, as also the confessional statement, the last of which,
per State, corroborates the entire prosecution story. The
learned counsel specifically referred to the decisions of this
Court in Mohammed Ajmal Mohammad Amir Kasab v.
State of Maharashtra
3
and Manoharan v. State by
Inspector of Police, Variety Hall Police Station,
3
(2012) 9 SCC 1
Page 4 of 26
Crl.A.No.3738 of 2023 etc.
Coimbatore
4
to urge that a confessional statement
voluntarily made, even if retracted, can still be reckoned to
bring home a conviction, which has been successfully done
in the present case. The High Court rightly reversed the
judgment of the Trial Court, and the conviction has to be
upheld, asserts learned Counsel for the State.
6. We would examine the evidence led, keeping in mind
the principles regulating a case of circumstantial evidence
1
stated in Sharad Birdhichand Sarda as harmonized with the
principles regarding powers of the Appellate Court in
dealing with an appeal from an acquittal as has been
delineated in Chandrappa & Others v. State of Karnataka
5
.
As we noticed, the prosecution went to trial with the last
seen together theory, the discovery of the dead body at the
instance of A1, recovery of the rope; allegedly used for
strangulation, at the instance of A2 and the seizure of various
articles belonging to the deceased from the house of A2, the
seizure of a mobile from the possession of PW11, and the
confessional statement of both the accused under Section
4
(2020) 5 SCC 782
5
(2007) 4 SCC 415
Page 5 of 26
Crl.A.No.3738 of 2023 etc.
164 of Code of Criminal Procedure, 1973
6
as also the medical
and forensic evidence put forth before the Trial Court,
which though disbelieved by the Trial Court was reckoned
by the High Court to enter a conviction. We will in the
course of the judgment only refer to the witnesses who are
relevant from the 34 witnesses paraded by the prosecution
before the Trial Court.
7. The First Information Statement (FIS) was by PW1, a
Professor of the College in which the deceased was
studying, who was also his local guardian. PW1 was
informed by the roommates of the deceased that he did not
return to his room on the evening of 18.02.2006. It was also
stated that the deceased reportedly was last seen in Police
Bazar with a friend by the name of Bernard; the first accused.
Even according to PW1, who deposed in tandem with the
FIS, he along with the roommates of the deceased
approached Bernard, the first accused and met him at Police
Bazar, when the later told him that though he was with the
deceased on the evening of 18.02.2006, the deceased had
6
For brevity ‘the Cr.P.C.’
Page 6 of 26
Crl.A.No.3738 of 2023 etc.
left in a Maruti car bearing registration number of Delhi with
a dent on the right side, in which car there were two more
persons who claimed to be friends of the deceased from
Siliguri.
8. On the next day, the first accused was arrested at 10
AM i.e. on 20.02.2006. On the arrest of A1, he is said to have
led PW33 to the house of A2 from where a silver color chain
and a spectacle was seized, which allegedly belonged to
the victim. On 21.02.2006, again it was stated that A1 led the
police party under PW33 to the graveyard at Mawroh from
where the body of the deceased was exhumed and sent for
post-mortem. But for the I.O, none spoke of A1 having led
the police to the spot nor was there any statement recorded
under Section 164 of the Cr.P.C.
9. A2 was arrested on 23.02.2006, who led to the
recovery of the rope. One another person, Mohd. Akbar
Qureshi, though arrested on 21.02.2006, was discharged
after investigation. The post-mortem report was marked by
PW2, doctor. PW2 spoke of ligature marks on the front
portion of the neck of the dead body and the spleen in a
ruptured state, on opening the abdomen. There was also
Page 7 of 26
Crl.A.No.3738 of 2023 etc.
presence of air bubbles in the lungs and there were multiple
abrasions on the left lateral aspect of the chest and
abdomen. On the basis of the above findings, it was opined
in the post-mortem report that the cause of death was
asphyxia by strangulation with a ‘ hard, blunt and long rope ’
(sic). The time of death of the victim was recorded as about
48 hours prior to the conduct of post-mortem.
10. Before we proceed further, we have to first deal with
the inconsistency urged by the accused regarding the time
of death. The post-mortem conducted on 22.02.2006 found
that the death occurred prior to two days; i.e. prior to 48
hours. The deceased was missing from 18.02.2006 and the
body was discovered on 21.02.2006; a day after which the
post-mortem was conducted. Hence the death could have
th
occurred any time before 20 of February. This would
necessarily warrant a closer look at the last seen together
theory, is the argument of the learned counsel.
11. Be that as it may, in cross examination by A2, it was
categorically stated by the doctor that the hyoid bone was
found broken at both sides, which could happen in a
strangulation suspending the body, that is by hanging. It
Page 8 of 26
Crl.A.No.3738 of 2023 etc.
was also opined that it could be a case of suicide by hanging
in the instant case, especially since the larynx of the
deceased was found intact and not broken, which could
happen in case of strangulation. The doctor went further to
say that there was no blood clot in the nostrils, ears or mouth
or cyanosis (bluish or purple discolouration) of nails or face
of deceased, which are again common symptoms of
strangulation. Hence, the medical evidence is not
conclusive as to a homicide, but the fact remains that even if
the death was by hanging, the body was exhumed from
where it was buried, which raises strong suspicions at least
as to the burial of the body.
12. The inconclusive medical evidence will have to be
looked at on the basis of other incriminating circumstances
put forth by the prosecution.
13. On the theory projected of last seen together, we
cannot but notice that there is no proof of the deceased
having been seen together with the accused immediately
before the death occurred. We say this despite the fact that
there is no clear-cut time specified on which the death
occurred, when it is trite that the last seen together theory
Page 9 of 26
Crl.A.No.3738 of 2023 etc.
projected by the prosecution should be proximate to the
death of the victim. Even the prosecution story that the
victim was in the company of the accused on the evening of
18.02.2006 is not established in the trial. It is the roommates
of the deceased who informed PW1 that they were told by a
friend of the deceased that he was going to meet A1 in the
evening. The roommates of the deceased were not
examined but the friend to whom the deceased talked about
the meeting in the evening, was examined as PW6. PW6
deposed that she was a close friend of the deceased and
they also did projects together for which reason the laptop
of the deceased was entrusted to PW6. It was the statement
of PW6 that the deceased had rung her up in the course of
the day, i.e. on 18.02.2006, to tell her that he will be
collecting the laptop later and also that he would be meeting
A1 in the evening. This is not in proof of the victim having
been seen with the accused in the evening.
14. One other witness projected to prove the last seen
together theory was PW12, the auto rikshaw driver who is
said to have picked up three persons from the Police Bazar
and dropped them near the scene of occurrence. PW12
Page 10 of 26
Crl.A.No.3738 of 2023 etc.
spoke in tandem with his statement under Section 161
Cr.P.C. and identified both the accused in the dock. The
prosecution interestingly did not put any question
regarding the acquaintance, the witness had with the
accused so as to identify them in the dock. However, on
cross-examination by A2, the witness, on a specific query
stated that he has known A2 from childhood. Still, there was
nothing to indicate how A1 was identified as having
travelled in the auto rickshaw on the fateful day and more
particularly, there was no statement regarding the identity
of the third person who travelled along with the two
accused.
15. It is also disturbing that the witness stated in cross-
examination that the first identification was done in the
Thana (Police Station) where he was taken for the
identification of the accused. It was also stated that there was
no other person standing with the accused at the time of
identification. Hence, there was no Test Identification
Parade carried out, as is required, in the course of an
investigation, which in any case only lends credence to the
line of investigation and not necessarily to the eventual
Page 11 of 26
Crl.A.No.3738 of 2023 etc.
conviction. However, it has to be noticed that the
identification of the accused was first done at the Police
Station putting the identification in the dock under a cloud.
Further, though PW14 a Sub-Inspector of Police speaks of
the seizure of the auto rickshaw corroborated by a Police
Constable, PW16, there is nothing brought on record to
indicate the ownership of the auto rickshaw or the
possession by PW12, who was alleged to be the driver of
the auto rickshaw. There was an interpolation to the
registration number of the autorickshaw as seen from the
seizure mahazar Ext-15, admitted by PW14 in cross
examination, but not satisfactorily explained by the
prosecution. The auto was also not produced at the time of
trial despite its seizure. The last seen together theory
projected by the prosecution fails miserably in the above
circumstances.
16. PW5, the father of the victim deposed about two phone
calls in his mobile number demanding ransom, which the
police did not follow up in their investigation. PW1 and
PW17; a classmate and friend of the deceased, spoke of
their visit to a PCO from where they obtained documents to
Page 12 of 26
Crl.A.No.3738 of 2023 etc.
indicate a call having been made to PW6, the lady friend of
the deceased. PW17 also spoke of the PCO owner having
told him about A1 having come to the PCO on the night of
18.02.06 and requested him not to disclose the factum of his
visit. A1 had accompanied PW1 & PW17 to the PCO and was
sitting in the taxi was the testimony. This does not in any
manner prove the ransom calls alleged to have been made
to PW5. PW22 was the PCO owner who did speak of some
persons having come to his PCO on 18.03.2006 and the same
persons having requested him, the next day, to not disclose
their identity. But the witness categorically stated that he
would not recognize them, if he met them again. The ransom
calls hence remained an unsolved puzzle.
17. The discovery of the body also is not supported by any
statement recorded from A1. The police party under PW33
is said to have been led by A1 to the graveyard from which
the body was exhumed. PW20, a photographer summoned
to the scene at the time of exhumation does not speak of the
presence of A1 either at the police station at Sadar, Shillong;
from where the police party started or at the exhumation
spot. The discovery so made cannot be pinned against the
Page 13 of 26
Crl.A.No.3738 of 2023 etc.
accused under Section 27 but could very well have been
proved as an incriminating circumstance if the ‘last seen
together’ theory was proved and there was sufficient
evidence to establish the burial spot having been spoken of
by A1. But for the exhumation of the body from the
graveyard, there is nothing to indicate that A1 had led the
police party to the graveyard. PW23, the helper of a
Cameraman who was summoned to the exhumation spot,
deposed that the body was recovered on 25.04.2006 but
another Cameraman, PW31 deposed that he witnessed the
exhumation on 21.02.2006. PW31 testified that the exact spot
was pointed out by a person, whom he was told was A1, but
there was no attempt to identify the accused from the dock
at the time of trial.
18. Likewise, the rope was recovered allegedly at the
instance of A2 as spoken of by PW33 and PW34
Investigating Officers, on 24.03.2026. The witnesses to such
recovery; PW25, 26 and 27 categorically deposed that no
statement was recorded from A2 before such recovery was
made. The IO also did not mark any such disclosure
statement which was recorded. A2 was arrested on
Page 14 of 26
Crl.A.No.3738 of 2023 etc.
23.03.2006 and the rope is alleged to have been recovered
on the next day. But PW18 a police driver spoke of the rope
having been seized from the graveyard on 18.03.2006 in the
presence only of police personnel. Neither was a statement
of A2 recorded of a concealment nor is there anything in the
deposition of the IOs or the witnesses to indicate that the
rope was recovered from a place of concealment. The rope
is recovered from the open at the crime scene itself, from
where the exhumation was carried out earlier, making it
suspect and not worthy of reliance under Section 27 of the
Evidence Act.
19. At the time of recovery, the seizure report indicated
blood stains on the rope. PW3 who is the Senior Scientific
Assistant of Meghalaya Forensic Science Laboratory
deposed only of a few strands of synthetic cloth fiber, of
various shades, having been detected in the rope sent to the
FSL. In cross-examination, it was brought out that there was
no human skin or hair present in the rope nor were any
blood stains spoken of in the forensic report or in the
deposition of PW3. The discovery of the body and the
Page 15 of 26
Crl.A.No.3738 of 2023 etc.
recovery of the alleged weapon hence fail to impress, as
incriminating circumstances against the accused.
20. As has been rightly noticed by the Trial Court, there
were many seizures made of the material possessions of the
victim, which could have been the personal property of the
victim. These, however, were not identified as that
belonging to the victim and some seizure witnesses like
PWs 23 & 24 turned hostile. The laptop was recovered from
the father of the victim, PW5, who identified it as belonging
to his son, the deceased. The laptop was received by the
father from PW6, the friend of the deceased, with whom it
was retained at the request of the deceased. The
identification of the laptop as that belonging to the
deceased is not a link to the crime.
21. The prosecution case also spoke of a mobile of the
victim having been taken from the deceased after his death,
by A2. A2 is said to have entrusted this mobile, for sale, to
PW11. The wife of PW11 examined as PW8, spoke of the
entrustment, but she admitted to have not witnessed it.
PW11 interestingly spoke of very close acquaintance with
A2 and the mobile having been found with A2 for long.
Page 16 of 26
Crl.A.No.3738 of 2023 etc.
Hence, even the evidence of PW11 does not indicate that the
mobile was the proceeds of the crime alleged, of murder
and in any event the seized mobile was never put to PW5,
the father of the deceased for identification as that
belonging to his son.
22. Similarly, there was seizure of a bag, purse and rakhi
spoken of by PW10 and the seizure of wrist watch and
spectacles spoken of by PW13, from the house of A2, which
was alleged to be belongings of the deceased. These
material objects were also not confronted to PW5, the father
of the deceased, for identification. The recoveries made
thus do not form a link, in the conspicuously absent chain of
circumstances.
23. The learned counsel appearing for the State had
specifically urged the confession made by the two accused,
which at least indicates their presence with the deceased on
18.02.2006, is the argument. The confessions were retracted
by the accused and in any event, they do not bring out any
inculpating circumstances against the persons who
confessed. In this context, we have to examine the
confessions, which are produced in the Criminal Appeal
Page 17 of 26
Crl.A.No.3738 of 2023 etc.
No.3738 of 2023 as Annexure P5 and P6 and available in the
records. Annexure P5 is the confession of A1 who states that
after they reached the graveyard, A2 asked for a cigarette,
to purchase which he had gone out of the graveyard. It was
A1’s statement that when he came back, he saw A2
strangulating the deceased with a plastic rope. It is his
statement that he asked A2 why he killed their friend, to
which A2 did not respond. A1, in the confession, spoke of
having opened the shoes of the deceased and rubbed his
feet to revive him. The confession so made is exculpatory in
nature and clearly incriminates the co-accused.
24. The reliance placed by the State on Mohammed
3
Ajmal Mohammad Amir Kasab to urge the acceptability
of the confessions in this case may not be appropriate.
Therein, the confession was argued to be not voluntary, but
a tutored statement to suit the prosecution’s case. It was
argued that the language, tone and tenor of the confession
coupled with its inordinate length and also the unnecessary
details contained therein made it highly suspect. This Court
on an examination of the facts leading to the confession
found it to be a voluntary statement. Though, some of the
Page 18 of 26
Crl.A.No.3738 of 2023 etc.
statements made were vague that was found to be no reason
to eschew the confession altogether. It was categorically
found from the statements that it was not made under any
influence or under duress and that the tone and tenor
indicated that it was truthful and voluntary, especially since
the statement indicated that the confession was not made out
of a feeling of weakness or a sense of resignation or out of
remorse but on the other hand made, more out of pride and
to project himself to be a role model. The Court also noticed
that in the course of the trial, after 58 prosecution witnesses
were examined, the accused requested to make a
statement, which though not so detailed had almost similar
contents as in the confessional statement.
25. Examined, in the light of the above findings, we find
the confessional statements as seen from the records,
juxtaposed with the deposition of PW 32, the Magistrate who
recorded the confession under Section 164 of the Cr.P.C, to
be highly suspect. The confession of A1 as deposed before
the Court was recorded on 07.03.2006. Insofar as A2 is
concerned, in the testimony before the Court, PW32
deposed that the confessional statement of A2 was recorded
Page 19 of 26
Crl.A.No.3738 of 2023 etc.
on 09.03.2006. The confessional statement, however, does
not record any date nor is the signature of the Magistrate
accompanied by a date. The signature of A2 is accompanied
with a date; i.e. 08.03.2006. The recorded statement of A2 in
the handwriting of the Magistrate, in the loose sheets affixed
to the printed form, the signature of the Magistrate is
accompanied with the date 09.03.2006. The said
discrepancy was specifically put to the Magistrate in cross-
examination. There was no satisfactory answer to the
question, regarding discrepancy of the accused having
signed on 08.03.2006 but the Magistrate having signed the
recorded confession on 09.03.2006. The printed portion of
the confessional statement also indicates the statements
having been recorded of A1 in English while that of A2 is
stated to be in Khasi. This is contrary to the testimony of
PW32 before Court and both the recorded statements are
completely in English as seen from the records.
26. One other compelling circumstance is the fact that the
accused, when produced before the Magistrate for the
purpose of recording the confession, they were never asked
as to whether they required the assistance of a lawyer. In
Page 20 of 26
Crl.A.No.3738 of 2023 etc.
3
Mohammed Ajmal Mohammad Amir Kasab , a similar
contention raised was negated by the Court finding that the
accused had initially refused representation by an Indian
lawyer and had been seeking the services of a Pakistani
lawyer. Examining the question of legal assistance at the
pre-trial stage on a conspectus of Article 22(1) of the
Constitution of India and Section 304 of the Cr.P.C. read with
Article 39A of the Constitution of India, it was held so in
paragraphs 474 and 475:
“ 474 . We, therefore, have no hesitation in holding
that the right to access to legal aid, to consult and to
be defended by a legal practitioner, arises when a
person arrested in connection with a cognizable
offence is first produced before a Magistrate. We,
accordingly, hold that it is the duty and obligation of
the Magistrate before whom a person accused of
committing a cognizable offence is first produced to
make him fully aware that it is his right to consult and
be defended by a legal practitioner and, in case he
has no means to engage a lawyer of his choice, that
one would be provided to him from legal aid at the
expense of the State. The right flows from Articles 21
and 22(1) of the Constitution and needs to be strictly
enforced. We, accordingly, direct all the Magistrates
in the country to faithfully discharge the aforesaid
duty and obligation and further make it clear that any
failure to fully discharge the duty would amount to
dereliction in duty and would make the Magistrate
concerned liable to departmental proceedings.
Page 21 of 26
Crl.A.No.3738 of 2023 etc.
475 . It needs to be clarified here that the right to
consult and be defended by a legal practitioner is not
to be construed as sanctioning or permitting the
presence of a lawyer during police interrogation.
According to our system of law, the role of a lawyer
is mainly focused on court proceedings. The accused
would need a lawyer to resist remand to police or
judicial custody and for granting of bail; to clearly
explain to him the legal consequences in case he
intended to make a confessional statement in terms
of Section 164 CrPC; to represent him when the court
examines the charge-sheet submitted by the police
and decides upon the future course of proceedings
and at the stage of the framing of charges; and
beyond that, of course, for the trial. It is thus to be
seen that the right to access to a lawyer in this country
is not based on the Miranda [(1966) 16 L Ed 2d 694:
384 US 436] principles, as protection against self-
incrimination, for which there are more than
adequate safeguards in Indian laws. The right to
access to a lawyer is for very Indian reasons; it flows
from the provisions of the Constitution and the
statutes, and is only intended to ensure that those
provisions are faithfully adhered to in practice.”
[underlining by us for emphasis]
27. We do not find PW32 having offered any such legal
assistance to the accused at the time of production before
her before recording the confession under Section 164.
28. Yet again, as we found, the confession of A1 is purely
exculpatory and accuse A2 of having strangulated his
Page 22 of 26
Crl.A.No.3738 of 2023 etc.
friend, leading to his death. The exculpatory statements
made by A1 to absolve himself from the liability and accuse
A2 of having caused the death, cannot at all be relied on
against A2. Insofar as A2 is concerned, he does not speak of
the murder having been committed and merely admits that
the deceased took his last breath in A2’s lap, which is not a
confession as such. True, if the incidence of death as spoken
in both confessions is eschewed and the other aspects of the
three having been together on the crucial evening, even if
accepted, can only be used for corroborating the
circumstantial evidence otherwise established, which we
find to be totally absent in the above case. Neither has the
last seen theory been proved nor has the recoveries or the
seizures established as having any connection with the
crime proper.
29. It has been held in a host of decisions as noticed in
4
Manoharan that a confession can form a legal basis of a
conviction if the Court is satisfied that it was true and was
voluntarily made. However, it was also held that a Court
shall not base a conviction on such a confession without
Page 23 of 26
Crl.A.No.3738 of 2023 etc.
corroboration [ Pyarelal Bhargava v. State of Rajasthan
7
] .
Quoting the Privy Council, it was held in Kanda Pandyachi
@ Kandaswamy v. State of Tamil Nadu
8
that ‘ a confession
has to be a direct acknowledgment of guilt of the offence in
question and such as would be sufficient by itself for
conviction. If it falls short of such a plenary acknowledgment
of guilt it would not be a confession even though the same is
of some incriminating fact which taken with other evidence
tends to prove his guilt.’ (sic para 11). In the instant case
there is no such acknowledgment of the crime proper nor is
there any shred of evidence to establish the various
circumstances put forth by the prosecution.
30. The confession allegedly made by the appellants is of
no use in bringing home a conviction, especially when there
was no corroboration available, of the statements made,
from other valid evidence. There was thus no single
circumstance available, incriminating the accused in the
death of their friend, the son of PW5.
7
AIR 1963 SC 1094
8
(1971) 2 SCC 641
Page 24 of 26
Crl.A.No.3738 of 2023 etc.
31. Having discussed the evidence, we fail to see any
circumstance having been found from the evidence led, in
the prosecution before the Trial Court to arrive at a
hypothesis of guilt. The High Court proceeded on the
premise that the Trial Court lost its way on the minor details
and failed to see the larger picture, which was obviously
and eventually admitted in the confession statements. The
admissions were only that made in the confessional
statements, of the death having occurred in the presence of
the accused, on the day the deceased was found missing,
which we have found to be not worthy of acceptance.
32. We find absolutely no reason to uphold the conviction
of the accused as entered into by the High Court reversing
the order of acquittal of the accused by the Trial Court. We
reverse the order of the High Court and restore that of the
Trial Court, which acquitted the accused. We have already
granted bail to the accused on the conclusion of hearing. We
direct that if the accused are still in jail, then they shall be
released forthwith, if not required in any other case and if
they are already released on bail, the bail bonds will stand
cancelled.
Page 25 of 26
Crl.A.No.3738 of 2023 etc.
33. The appeals stand allowed with the above directions.
34. Pending application(s), if any, shall stand disposed of.
...…….……………………. J.
(SANJAY KUMAR)
...…….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI
JANUARY 27, 2026.
Page 26 of 26
Crl.A.No.3738 of 2023 etc.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.3738 of 2023
Bernard Lyngdoh Phawa
...Appellant
Versus
The State of Meghalaya
...Respondent
W I T H
Criminal Appeal No. of 2026
[@Special Leave Petition (Crl.) No.1798 of 2025]
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. An enquiry, commenced with a missing person
complaint, led, to the arrest of the appellants, discovery of
the body; exhumed from a graveyard, recovery of a rope;
allegedly used to strangulate the victim, allegation of
Signature Not Verified
ransom calls received and recovery of material possessions
Digitally signed by
Deepak Guglani
Date: 2026.01.27
15:47:09 IST
Reason:
of the victim from the house of one of the accused and a
Page 1 of 26
Crl.A.No.3738 of 2023 etc.
mobile phone from a witness. These coupled with the last
seen theory; as purportedly stated by the witnesses,
resulted in the prosecution being lodged before the Trial
Court. The Trial Court after examining the evidence found it
to be not sufficient to enter a finding of guilt, resulting in the
acquittal of the accused. The High Court on an appeal by the
State found that the five golden principles as enunciated in
Sharad Birdhichand Sarda v. State of Maharashtra
1
adequately satisfied, bringing forth a conclusion only of a
hypothesis of guilt excluding all possible hypothesis of
innocence. There is no weak link, and the chain of
circumstances is complete was the finding of the High
Court. The High Court reversed the judgment of the Trial
Court but found no kidnapping as charged, all the same
finding the accused guilty of murder (Section 302 of the
Indian Penal Code, 1860
2
) and causing disappearance of
evidence (Section 201 of the IPC).
3. We are, in the above appeals, confronted with the
divergence of opinion as expressed by the Trial Court and
1
(1984) 4 SCC 116
2
For brevity ‘the IPC’
Page 2 of 26
Crl.A.No.3738 of 2023 etc.
the High Court respectively. We heard Sh. Subhro Sanyal,
Advocate-on-Record and Sh.Ajay Sabharwal, Advocate
appearing for the two appellants and Sh. Avijit Mani
Tripathi, Advocate-on-Record appearing for the State.
4. Learned counsel appearing for the accused argued
that a well-reasoned judgment of acquittal was reversed by
the High Court without any compelling reason and without
recording a clear finding as to whether the view taken by
the Trial Court was a possible view, bringing forth a
reasonable doubt. The trite principle that an acquittal by
one Court reinforces the presumption of innocence
available to the accused, not liable to be displaced lightly,
was thrown to the winds. The High Court has substituted its
own inferences on the evidence led. There is no valid last
seen theory coming out of the evidence and there is no
clarity as to the exact time of death. Neither was the
recovery of the murder weapon (rope) proved, nor was it
found to have any connection with the crime, the traces of
which having not been detected in a forensic analysis. The
allegation of ransom calls having been made to the father of
the victim was not at all established. The confessional
Page 3 of 26
Crl.A.No.3738 of 2023 etc.
statements are full of inconsistencies, not made voluntarily
and does not contain any inculpatory statements. Further,
there can be no conviction based merely on the
confessional statement, which also was retracted. The
cumulative effect of the lapses in investigation and the
complete absence of incriminating circumstances; the
former of which was specifically noticed by the High Court,
ought to have persuaded the High Court to not disturb the
acquittal by the Trial Court.
5. Learned counsel appearing for the State would,
however, vehemently put forth the incriminating
circumstances coming out from the last seen theory and
recovery of the weapon and the other possessions of the
victim, as also the confessional statement, the last of which,
per State, corroborates the entire prosecution story. The
learned counsel specifically referred to the decisions of this
Court in Mohammed Ajmal Mohammad Amir Kasab v.
State of Maharashtra
3
and Manoharan v. State by
Inspector of Police, Variety Hall Police Station,
3
(2012) 9 SCC 1
Page 4 of 26
Crl.A.No.3738 of 2023 etc.
Coimbatore
4
to urge that a confessional statement
voluntarily made, even if retracted, can still be reckoned to
bring home a conviction, which has been successfully done
in the present case. The High Court rightly reversed the
judgment of the Trial Court, and the conviction has to be
upheld, asserts learned Counsel for the State.
6. We would examine the evidence led, keeping in mind
the principles regulating a case of circumstantial evidence
1
stated in Sharad Birdhichand Sarda as harmonized with the
principles regarding powers of the Appellate Court in
dealing with an appeal from an acquittal as has been
delineated in Chandrappa & Others v. State of Karnataka
5
.
As we noticed, the prosecution went to trial with the last
seen together theory, the discovery of the dead body at the
instance of A1, recovery of the rope; allegedly used for
strangulation, at the instance of A2 and the seizure of various
articles belonging to the deceased from the house of A2, the
seizure of a mobile from the possession of PW11, and the
confessional statement of both the accused under Section
4
(2020) 5 SCC 782
5
(2007) 4 SCC 415
Page 5 of 26
Crl.A.No.3738 of 2023 etc.
164 of Code of Criminal Procedure, 1973
6
as also the medical
and forensic evidence put forth before the Trial Court,
which though disbelieved by the Trial Court was reckoned
by the High Court to enter a conviction. We will in the
course of the judgment only refer to the witnesses who are
relevant from the 34 witnesses paraded by the prosecution
before the Trial Court.
7. The First Information Statement (FIS) was by PW1, a
Professor of the College in which the deceased was
studying, who was also his local guardian. PW1 was
informed by the roommates of the deceased that he did not
return to his room on the evening of 18.02.2006. It was also
stated that the deceased reportedly was last seen in Police
Bazar with a friend by the name of Bernard; the first accused.
Even according to PW1, who deposed in tandem with the
FIS, he along with the roommates of the deceased
approached Bernard, the first accused and met him at Police
Bazar, when the later told him that though he was with the
deceased on the evening of 18.02.2006, the deceased had
6
For brevity ‘the Cr.P.C.’
Page 6 of 26
Crl.A.No.3738 of 2023 etc.
left in a Maruti car bearing registration number of Delhi with
a dent on the right side, in which car there were two more
persons who claimed to be friends of the deceased from
Siliguri.
8. On the next day, the first accused was arrested at 10
AM i.e. on 20.02.2006. On the arrest of A1, he is said to have
led PW33 to the house of A2 from where a silver color chain
and a spectacle was seized, which allegedly belonged to
the victim. On 21.02.2006, again it was stated that A1 led the
police party under PW33 to the graveyard at Mawroh from
where the body of the deceased was exhumed and sent for
post-mortem. But for the I.O, none spoke of A1 having led
the police to the spot nor was there any statement recorded
under Section 164 of the Cr.P.C.
9. A2 was arrested on 23.02.2006, who led to the
recovery of the rope. One another person, Mohd. Akbar
Qureshi, though arrested on 21.02.2006, was discharged
after investigation. The post-mortem report was marked by
PW2, doctor. PW2 spoke of ligature marks on the front
portion of the neck of the dead body and the spleen in a
ruptured state, on opening the abdomen. There was also
Page 7 of 26
Crl.A.No.3738 of 2023 etc.
presence of air bubbles in the lungs and there were multiple
abrasions on the left lateral aspect of the chest and
abdomen. On the basis of the above findings, it was opined
in the post-mortem report that the cause of death was
asphyxia by strangulation with a ‘ hard, blunt and long rope ’
(sic). The time of death of the victim was recorded as about
48 hours prior to the conduct of post-mortem.
10. Before we proceed further, we have to first deal with
the inconsistency urged by the accused regarding the time
of death. The post-mortem conducted on 22.02.2006 found
that the death occurred prior to two days; i.e. prior to 48
hours. The deceased was missing from 18.02.2006 and the
body was discovered on 21.02.2006; a day after which the
post-mortem was conducted. Hence the death could have
th
occurred any time before 20 of February. This would
necessarily warrant a closer look at the last seen together
theory, is the argument of the learned counsel.
11. Be that as it may, in cross examination by A2, it was
categorically stated by the doctor that the hyoid bone was
found broken at both sides, which could happen in a
strangulation suspending the body, that is by hanging. It
Page 8 of 26
Crl.A.No.3738 of 2023 etc.
was also opined that it could be a case of suicide by hanging
in the instant case, especially since the larynx of the
deceased was found intact and not broken, which could
happen in case of strangulation. The doctor went further to
say that there was no blood clot in the nostrils, ears or mouth
or cyanosis (bluish or purple discolouration) of nails or face
of deceased, which are again common symptoms of
strangulation. Hence, the medical evidence is not
conclusive as to a homicide, but the fact remains that even if
the death was by hanging, the body was exhumed from
where it was buried, which raises strong suspicions at least
as to the burial of the body.
12. The inconclusive medical evidence will have to be
looked at on the basis of other incriminating circumstances
put forth by the prosecution.
13. On the theory projected of last seen together, we
cannot but notice that there is no proof of the deceased
having been seen together with the accused immediately
before the death occurred. We say this despite the fact that
there is no clear-cut time specified on which the death
occurred, when it is trite that the last seen together theory
Page 9 of 26
Crl.A.No.3738 of 2023 etc.
projected by the prosecution should be proximate to the
death of the victim. Even the prosecution story that the
victim was in the company of the accused on the evening of
18.02.2006 is not established in the trial. It is the roommates
of the deceased who informed PW1 that they were told by a
friend of the deceased that he was going to meet A1 in the
evening. The roommates of the deceased were not
examined but the friend to whom the deceased talked about
the meeting in the evening, was examined as PW6. PW6
deposed that she was a close friend of the deceased and
they also did projects together for which reason the laptop
of the deceased was entrusted to PW6. It was the statement
of PW6 that the deceased had rung her up in the course of
the day, i.e. on 18.02.2006, to tell her that he will be
collecting the laptop later and also that he would be meeting
A1 in the evening. This is not in proof of the victim having
been seen with the accused in the evening.
14. One other witness projected to prove the last seen
together theory was PW12, the auto rikshaw driver who is
said to have picked up three persons from the Police Bazar
and dropped them near the scene of occurrence. PW12
Page 10 of 26
Crl.A.No.3738 of 2023 etc.
spoke in tandem with his statement under Section 161
Cr.P.C. and identified both the accused in the dock. The
prosecution interestingly did not put any question
regarding the acquaintance, the witness had with the
accused so as to identify them in the dock. However, on
cross-examination by A2, the witness, on a specific query
stated that he has known A2 from childhood. Still, there was
nothing to indicate how A1 was identified as having
travelled in the auto rickshaw on the fateful day and more
particularly, there was no statement regarding the identity
of the third person who travelled along with the two
accused.
15. It is also disturbing that the witness stated in cross-
examination that the first identification was done in the
Thana (Police Station) where he was taken for the
identification of the accused. It was also stated that there was
no other person standing with the accused at the time of
identification. Hence, there was no Test Identification
Parade carried out, as is required, in the course of an
investigation, which in any case only lends credence to the
line of investigation and not necessarily to the eventual
Page 11 of 26
Crl.A.No.3738 of 2023 etc.
conviction. However, it has to be noticed that the
identification of the accused was first done at the Police
Station putting the identification in the dock under a cloud.
Further, though PW14 a Sub-Inspector of Police speaks of
the seizure of the auto rickshaw corroborated by a Police
Constable, PW16, there is nothing brought on record to
indicate the ownership of the auto rickshaw or the
possession by PW12, who was alleged to be the driver of
the auto rickshaw. There was an interpolation to the
registration number of the autorickshaw as seen from the
seizure mahazar Ext-15, admitted by PW14 in cross
examination, but not satisfactorily explained by the
prosecution. The auto was also not produced at the time of
trial despite its seizure. The last seen together theory
projected by the prosecution fails miserably in the above
circumstances.
16. PW5, the father of the victim deposed about two phone
calls in his mobile number demanding ransom, which the
police did not follow up in their investigation. PW1 and
PW17; a classmate and friend of the deceased, spoke of
their visit to a PCO from where they obtained documents to
Page 12 of 26
Crl.A.No.3738 of 2023 etc.
indicate a call having been made to PW6, the lady friend of
the deceased. PW17 also spoke of the PCO owner having
told him about A1 having come to the PCO on the night of
18.02.06 and requested him not to disclose the factum of his
visit. A1 had accompanied PW1 & PW17 to the PCO and was
sitting in the taxi was the testimony. This does not in any
manner prove the ransom calls alleged to have been made
to PW5. PW22 was the PCO owner who did speak of some
persons having come to his PCO on 18.03.2006 and the same
persons having requested him, the next day, to not disclose
their identity. But the witness categorically stated that he
would not recognize them, if he met them again. The ransom
calls hence remained an unsolved puzzle.
17. The discovery of the body also is not supported by any
statement recorded from A1. The police party under PW33
is said to have been led by A1 to the graveyard from which
the body was exhumed. PW20, a photographer summoned
to the scene at the time of exhumation does not speak of the
presence of A1 either at the police station at Sadar, Shillong;
from where the police party started or at the exhumation
spot. The discovery so made cannot be pinned against the
Page 13 of 26
Crl.A.No.3738 of 2023 etc.
accused under Section 27 but could very well have been
proved as an incriminating circumstance if the ‘last seen
together’ theory was proved and there was sufficient
evidence to establish the burial spot having been spoken of
by A1. But for the exhumation of the body from the
graveyard, there is nothing to indicate that A1 had led the
police party to the graveyard. PW23, the helper of a
Cameraman who was summoned to the exhumation spot,
deposed that the body was recovered on 25.04.2006 but
another Cameraman, PW31 deposed that he witnessed the
exhumation on 21.02.2006. PW31 testified that the exact spot
was pointed out by a person, whom he was told was A1, but
there was no attempt to identify the accused from the dock
at the time of trial.
18. Likewise, the rope was recovered allegedly at the
instance of A2 as spoken of by PW33 and PW34
Investigating Officers, on 24.03.2026. The witnesses to such
recovery; PW25, 26 and 27 categorically deposed that no
statement was recorded from A2 before such recovery was
made. The IO also did not mark any such disclosure
statement which was recorded. A2 was arrested on
Page 14 of 26
Crl.A.No.3738 of 2023 etc.
23.03.2006 and the rope is alleged to have been recovered
on the next day. But PW18 a police driver spoke of the rope
having been seized from the graveyard on 18.03.2006 in the
presence only of police personnel. Neither was a statement
of A2 recorded of a concealment nor is there anything in the
deposition of the IOs or the witnesses to indicate that the
rope was recovered from a place of concealment. The rope
is recovered from the open at the crime scene itself, from
where the exhumation was carried out earlier, making it
suspect and not worthy of reliance under Section 27 of the
Evidence Act.
19. At the time of recovery, the seizure report indicated
blood stains on the rope. PW3 who is the Senior Scientific
Assistant of Meghalaya Forensic Science Laboratory
deposed only of a few strands of synthetic cloth fiber, of
various shades, having been detected in the rope sent to the
FSL. In cross-examination, it was brought out that there was
no human skin or hair present in the rope nor were any
blood stains spoken of in the forensic report or in the
deposition of PW3. The discovery of the body and the
Page 15 of 26
Crl.A.No.3738 of 2023 etc.
recovery of the alleged weapon hence fail to impress, as
incriminating circumstances against the accused.
20. As has been rightly noticed by the Trial Court, there
were many seizures made of the material possessions of the
victim, which could have been the personal property of the
victim. These, however, were not identified as that
belonging to the victim and some seizure witnesses like
PWs 23 & 24 turned hostile. The laptop was recovered from
the father of the victim, PW5, who identified it as belonging
to his son, the deceased. The laptop was received by the
father from PW6, the friend of the deceased, with whom it
was retained at the request of the deceased. The
identification of the laptop as that belonging to the
deceased is not a link to the crime.
21. The prosecution case also spoke of a mobile of the
victim having been taken from the deceased after his death,
by A2. A2 is said to have entrusted this mobile, for sale, to
PW11. The wife of PW11 examined as PW8, spoke of the
entrustment, but she admitted to have not witnessed it.
PW11 interestingly spoke of very close acquaintance with
A2 and the mobile having been found with A2 for long.
Page 16 of 26
Crl.A.No.3738 of 2023 etc.
Hence, even the evidence of PW11 does not indicate that the
mobile was the proceeds of the crime alleged, of murder
and in any event the seized mobile was never put to PW5,
the father of the deceased for identification as that
belonging to his son.
22. Similarly, there was seizure of a bag, purse and rakhi
spoken of by PW10 and the seizure of wrist watch and
spectacles spoken of by PW13, from the house of A2, which
was alleged to be belongings of the deceased. These
material objects were also not confronted to PW5, the father
of the deceased, for identification. The recoveries made
thus do not form a link, in the conspicuously absent chain of
circumstances.
23. The learned counsel appearing for the State had
specifically urged the confession made by the two accused,
which at least indicates their presence with the deceased on
18.02.2006, is the argument. The confessions were retracted
by the accused and in any event, they do not bring out any
inculpating circumstances against the persons who
confessed. In this context, we have to examine the
confessions, which are produced in the Criminal Appeal
Page 17 of 26
Crl.A.No.3738 of 2023 etc.
No.3738 of 2023 as Annexure P5 and P6 and available in the
records. Annexure P5 is the confession of A1 who states that
after they reached the graveyard, A2 asked for a cigarette,
to purchase which he had gone out of the graveyard. It was
A1’s statement that when he came back, he saw A2
strangulating the deceased with a plastic rope. It is his
statement that he asked A2 why he killed their friend, to
which A2 did not respond. A1, in the confession, spoke of
having opened the shoes of the deceased and rubbed his
feet to revive him. The confession so made is exculpatory in
nature and clearly incriminates the co-accused.
24. The reliance placed by the State on Mohammed
3
Ajmal Mohammad Amir Kasab to urge the acceptability
of the confessions in this case may not be appropriate.
Therein, the confession was argued to be not voluntary, but
a tutored statement to suit the prosecution’s case. It was
argued that the language, tone and tenor of the confession
coupled with its inordinate length and also the unnecessary
details contained therein made it highly suspect. This Court
on an examination of the facts leading to the confession
found it to be a voluntary statement. Though, some of the
Page 18 of 26
Crl.A.No.3738 of 2023 etc.
statements made were vague that was found to be no reason
to eschew the confession altogether. It was categorically
found from the statements that it was not made under any
influence or under duress and that the tone and tenor
indicated that it was truthful and voluntary, especially since
the statement indicated that the confession was not made out
of a feeling of weakness or a sense of resignation or out of
remorse but on the other hand made, more out of pride and
to project himself to be a role model. The Court also noticed
that in the course of the trial, after 58 prosecution witnesses
were examined, the accused requested to make a
statement, which though not so detailed had almost similar
contents as in the confessional statement.
25. Examined, in the light of the above findings, we find
the confessional statements as seen from the records,
juxtaposed with the deposition of PW 32, the Magistrate who
recorded the confession under Section 164 of the Cr.P.C, to
be highly suspect. The confession of A1 as deposed before
the Court was recorded on 07.03.2006. Insofar as A2 is
concerned, in the testimony before the Court, PW32
deposed that the confessional statement of A2 was recorded
Page 19 of 26
Crl.A.No.3738 of 2023 etc.
on 09.03.2006. The confessional statement, however, does
not record any date nor is the signature of the Magistrate
accompanied by a date. The signature of A2 is accompanied
with a date; i.e. 08.03.2006. The recorded statement of A2 in
the handwriting of the Magistrate, in the loose sheets affixed
to the printed form, the signature of the Magistrate is
accompanied with the date 09.03.2006. The said
discrepancy was specifically put to the Magistrate in cross-
examination. There was no satisfactory answer to the
question, regarding discrepancy of the accused having
signed on 08.03.2006 but the Magistrate having signed the
recorded confession on 09.03.2006. The printed portion of
the confessional statement also indicates the statements
having been recorded of A1 in English while that of A2 is
stated to be in Khasi. This is contrary to the testimony of
PW32 before Court and both the recorded statements are
completely in English as seen from the records.
26. One other compelling circumstance is the fact that the
accused, when produced before the Magistrate for the
purpose of recording the confession, they were never asked
as to whether they required the assistance of a lawyer. In
Page 20 of 26
Crl.A.No.3738 of 2023 etc.
3
Mohammed Ajmal Mohammad Amir Kasab , a similar
contention raised was negated by the Court finding that the
accused had initially refused representation by an Indian
lawyer and had been seeking the services of a Pakistani
lawyer. Examining the question of legal assistance at the
pre-trial stage on a conspectus of Article 22(1) of the
Constitution of India and Section 304 of the Cr.P.C. read with
Article 39A of the Constitution of India, it was held so in
paragraphs 474 and 475:
“ 474 . We, therefore, have no hesitation in holding
that the right to access to legal aid, to consult and to
be defended by a legal practitioner, arises when a
person arrested in connection with a cognizable
offence is first produced before a Magistrate. We,
accordingly, hold that it is the duty and obligation of
the Magistrate before whom a person accused of
committing a cognizable offence is first produced to
make him fully aware that it is his right to consult and
be defended by a legal practitioner and, in case he
has no means to engage a lawyer of his choice, that
one would be provided to him from legal aid at the
expense of the State. The right flows from Articles 21
and 22(1) of the Constitution and needs to be strictly
enforced. We, accordingly, direct all the Magistrates
in the country to faithfully discharge the aforesaid
duty and obligation and further make it clear that any
failure to fully discharge the duty would amount to
dereliction in duty and would make the Magistrate
concerned liable to departmental proceedings.
Page 21 of 26
Crl.A.No.3738 of 2023 etc.
475 . It needs to be clarified here that the right to
consult and be defended by a legal practitioner is not
to be construed as sanctioning or permitting the
presence of a lawyer during police interrogation.
According to our system of law, the role of a lawyer
is mainly focused on court proceedings. The accused
would need a lawyer to resist remand to police or
judicial custody and for granting of bail; to clearly
explain to him the legal consequences in case he
intended to make a confessional statement in terms
of Section 164 CrPC; to represent him when the court
examines the charge-sheet submitted by the police
and decides upon the future course of proceedings
and at the stage of the framing of charges; and
beyond that, of course, for the trial. It is thus to be
seen that the right to access to a lawyer in this country
is not based on the Miranda [(1966) 16 L Ed 2d 694:
384 US 436] principles, as protection against self-
incrimination, for which there are more than
adequate safeguards in Indian laws. The right to
access to a lawyer is for very Indian reasons; it flows
from the provisions of the Constitution and the
statutes, and is only intended to ensure that those
provisions are faithfully adhered to in practice.”
[underlining by us for emphasis]
27. We do not find PW32 having offered any such legal
assistance to the accused at the time of production before
her before recording the confession under Section 164.
28. Yet again, as we found, the confession of A1 is purely
exculpatory and accuse A2 of having strangulated his
Page 22 of 26
Crl.A.No.3738 of 2023 etc.
friend, leading to his death. The exculpatory statements
made by A1 to absolve himself from the liability and accuse
A2 of having caused the death, cannot at all be relied on
against A2. Insofar as A2 is concerned, he does not speak of
the murder having been committed and merely admits that
the deceased took his last breath in A2’s lap, which is not a
confession as such. True, if the incidence of death as spoken
in both confessions is eschewed and the other aspects of the
three having been together on the crucial evening, even if
accepted, can only be used for corroborating the
circumstantial evidence otherwise established, which we
find to be totally absent in the above case. Neither has the
last seen theory been proved nor has the recoveries or the
seizures established as having any connection with the
crime proper.
29. It has been held in a host of decisions as noticed in
4
Manoharan that a confession can form a legal basis of a
conviction if the Court is satisfied that it was true and was
voluntarily made. However, it was also held that a Court
shall not base a conviction on such a confession without
Page 23 of 26
Crl.A.No.3738 of 2023 etc.
corroboration [ Pyarelal Bhargava v. State of Rajasthan
7
] .
Quoting the Privy Council, it was held in Kanda Pandyachi
@ Kandaswamy v. State of Tamil Nadu
8
that ‘ a confession
has to be a direct acknowledgment of guilt of the offence in
question and such as would be sufficient by itself for
conviction. If it falls short of such a plenary acknowledgment
of guilt it would not be a confession even though the same is
of some incriminating fact which taken with other evidence
tends to prove his guilt.’ (sic para 11). In the instant case
there is no such acknowledgment of the crime proper nor is
there any shred of evidence to establish the various
circumstances put forth by the prosecution.
30. The confession allegedly made by the appellants is of
no use in bringing home a conviction, especially when there
was no corroboration available, of the statements made,
from other valid evidence. There was thus no single
circumstance available, incriminating the accused in the
death of their friend, the son of PW5.
7
AIR 1963 SC 1094
8
(1971) 2 SCC 641
Page 24 of 26
Crl.A.No.3738 of 2023 etc.
31. Having discussed the evidence, we fail to see any
circumstance having been found from the evidence led, in
the prosecution before the Trial Court to arrive at a
hypothesis of guilt. The High Court proceeded on the
premise that the Trial Court lost its way on the minor details
and failed to see the larger picture, which was obviously
and eventually admitted in the confession statements. The
admissions were only that made in the confessional
statements, of the death having occurred in the presence of
the accused, on the day the deceased was found missing,
which we have found to be not worthy of acceptance.
32. We find absolutely no reason to uphold the conviction
of the accused as entered into by the High Court reversing
the order of acquittal of the accused by the Trial Court. We
reverse the order of the High Court and restore that of the
Trial Court, which acquitted the accused. We have already
granted bail to the accused on the conclusion of hearing. We
direct that if the accused are still in jail, then they shall be
released forthwith, if not required in any other case and if
they are already released on bail, the bail bonds will stand
cancelled.
Page 25 of 26
Crl.A.No.3738 of 2023 etc.
33. The appeals stand allowed with the above directions.
34. Pending application(s), if any, shall stand disposed of.
...…….……………………. J.
(SANJAY KUMAR)
...…….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI
JANUARY 27, 2026.
Page 26 of 26
Crl.A.No.3738 of 2023 etc.