MAHABIR BISWAS AND ANR. versus STATE OF WEST BENGAL

Citation: [1994] SUPP. 5 S.C.R. 241 · Decided: 28-10-1994 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Disposed off
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Judgment (excerpt)

.. 
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MAHABIR BISWAS AND ANR. 
A 
v. 
STA TE OF WEST BENGAL 
OCTOBER 28, 1994 
[M.M. PUNCHHI, M.K.MUKHERJEE AND K. JAY ACHANDRA 
B 
REDDY, JJ.] 
Evidence Act, I872-Section 30- Confession-Evidentiary value-Its use 
against a co-accused. 
Indian Penal Code, I860- Section 302134- Murderous assault-
C 
Retracted judicial confessions-Discoveries made pursuant to statements of 
two accused-Conviction-Whether legally sustainable. 
The two appellants, along with six others were arraigned for 
offences punishable under Sections 364134, 302/34, 201/34 and 379 IPC. 
The appellants were convicted u/s 302/34 IPC and sentenced to death. D 
On reference, the High Court while upholding the conviction of the two 
appellants commuted their sentence to imprisonment for life . 
The case of the prosecution was that the two victims were 
returning to their houses in a rickshaw when some miscreants led by 
the two appellllnts came there, surrounded the two victims, dragged E 
them out of the rickshaw and forcibly took them, and that on the 
follwoing morning their dead bodies were found lying on the road with 
their hands tied and with multiple injuries on their persons. 
The prosecution examined the rickshaw puller, to give an ocular 
version of ·the incident, but he turned hostile. In absence of any other F 
witness to the actual commission of the crime, the prosecution rested its 
case upon two retracted judicial confessions of the appellants and 
certain discoveries made pursuant to the statement or 
the two 
appellants. 
In this appeal filed against the judgment of convication, the 
question that arose for determination was whether the prosecution had 
been able to prove conclusively that the appellants were amongst 
others, the authors of the crime and whether the convictions recorded 
by the trial Court and the High Court could be· sustained or not. 
G 
Disposing of the appeal, this Court 
H 
241 
242 
SUPREME COURT REPORTS 
[1994] SUPP. 5 s.c;.R.· 
A 
HELD 1.1 A confession, before it can be acted upon must be 
B 
c 
D 
E 
established to have been voluntarily made and is true. As regards the 
evidentiary value of a confession, which passes the above two tests, 
against the maker thereof, in law it would be open to the Court to 
convict him on his confession itself though he has retracted his 
confession at a later stage. (245-G-H) 
1.2 Such a confession can also be used against a co-accused, in view 
of Section 30 of the Evidence Act. (246-C) 
Sarwan singh v. State of Punjab, AIR (1957) SC 637; Kehar Singh v. 
State (Delhi Admn), AIR (1988) SC 1883 and Kashmira Singh v. State of 
Madhya Pradesh, AIR (1952) SC 159, relied on. 
1.2 To ascertain whether the confession of appellant was true or 
not, the trial Court considered all the relevant factors required to be 
looked into for that purpose, including the period he was kept in 
segregation and the questions put by the Magistrate before recording 
the same, and on proper appraisal thereof answered the question i9 the 
affirmative and the High Court concurred with the same. Whether a 
confession is voluntary or not, is a question of fact and when both the 
trial Court and the High Court have, on proper discussion of the 
materials brought on record, held it to be true, there is no reason 
whatsoever to disturb that finding. (246-H; 247-B) 
1.3 The t.rial Court proceeded to examine the confession of the 
appellant M in the light of the rest of the prosecution evidence and the 
probabilities of the case to find out whether it was true and on a 
threadbare discussion held it to be so. In arriving at this conclusion the 
Court pointed out, .that appellant M's unequivocal admission fitted in 
with the ·evidence adduced by the witnesses to the· inquest anti the 
F . Doctor who held the post mo'rtem examination. The above reasons 
found favour with the Higli Court and meet approval of this Court too. 
(247-C-D) 
G 
H 
1.4 Record indicates that M retracted the confession by. filing an 
application. The trial court considered the allegations in the light of 
the materials on record and probabilities and found them to be 
baseless. This finding is unexceptional. (247-E) 
1.5 Besides the retracted confession the prosecution relied upon ttie 
discoveries of the sword and the watc~ of the victim pursuant to the 
statement of appellant M. The recovery of wrist watch pursuant to the 
statement of appellant M fully corroborates his confession that during 
M. BISWAS v. STATE [M.K. MUKHERJEE, J.) 
243
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