RAJESH & ANR. versus THE STATE OF MADHYA PRADESH

Citation: [2023] 15 S.C.R. 1 · Decided: 21-09-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2023] 15 S.C.R. 1 : 2023 INSC 839
1
CASE DETAILS
 RAJESH & ANR.
v.
THE STATE OF MADHYA PRADESH 
(Criminal Appeal No(s). 793-794 of 2022)
SEPTEMBER 21, 2023
[B. R. GAVAI, J. B PARDIWALA AND SANJAY KUMAR, JJ.]
HEADNOTES
 Issue for consideration: In a case based on circumstantial evidence 
as there was no eyewitness to the kidnapping and murder, and where the 
prosecution’s case essentially turned upon the ‘recoveries’ made at the behest 
of the appellants-convicts, purportedly u/s.27, Evidence Act, whether their 
conviction on diﬀ erent counts and death sentence imposed on two out of 
the three appellants was justiﬁ ed, when the confessions were made before 
their arrest and prior to being ‘accused of any oﬀ ence’.
Evidence Act, 1872 – ss.26, 27 – Being in ‘the custody of a police 
oﬃ  cer’ and being ‘accused of an oﬀ ence’ – Pre-requisites to render a 
confession made to the police admissible to a limited extent by bringing 
into play the exception postulated u/s.27:
Held: s.26 provides that no confession made by any person whilst 
he is in the custody of a police oﬃ  cer shall be proved against such person, 
unless made in the immediate presence of a Magistrate – s.27 is in the 
nature of an exception to s.26 – It is essential u/s.27 that the person 
concerned must be ‘accused of an oﬀ ence’ and being in the ‘custody of a 
police oﬃ  cer’, he or she must give information leading to the discovery 
of a fact and so much of that information, whether it amounts to a 
confession or not, that relates distinctly to the fact discovered, may be 
proved against him – Both aspects, viz, being in ‘the custody of a police 
oﬃ  cer’ and being ‘accused of an oﬀ ence’, are indispensable pre-requisites 
to render a confession made to the police admissible to a limited extent, 
by bringing into play the exception postulated u/s. 27 – In the present 
case, though one of the appellant was taken to the police station, be it on 
2  
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
29.03.2013 or even earlier, he could not be said to be in ‘police custody’ 
till he was arrested at 18:30 hours on 29.03.2013, as he did not ﬁ gure as 
an ‘accused’ in the FIR and was not ‘accused of any oﬀ ence’ till his arrest 
– Therefore, it was his arrest which resulted in actual ‘police custody’, 
and the confession made by him, before such arrest and prior to his being 
‘accused of any oﬀ ence’, would be directly hit by s.26 and there is no 
possibility of applying the exception u/s.27 to any information given 
by him in the course of such confession, even if it may have led to the 
discovery of any fact – Thus, the purported discovery of the dead body, the 
murder weapon and the other material objects, even if it was at his behest, 
cannot be proved against him, as he was not ‘accused of any oﬀ ence’ 
and was not in ‘police custody’ at the point of time he allegedly made a 
confession – Similarly, the other two appellants were also not named as 
the ‘accused’ in the FIR and were not ‘accused of any oﬀ ence’ till they 
were arrested and taken into ‘police custody’, well after the recording 
of their confessions and the alleged seizures based thereon – This lapse 
on the part of the police is fatal – There are yawning inﬁ rmities and gaps 
in the chain of circumstantial evidence – The degree of proof required 
to hold appellants guilty beyond reasonable doubt, on the strength of 
circumstantial evidence, not established – No valid reasons were put forth 
by the Trial Court and the High Court as to why this case qualiﬁ ed as 
the ‘rarest of rare cases’, for imposing and sustaining capital punishment 
– Conviction and sentences of all the appellants on all counts set aside 
and they are acquitted by giving them the beneﬁ t of doubt – Penal Code, 
1860 – ss. 302, 364A, 120B, 201. [Paras 22, 27 and 39]
Criminal Law – Investigation – Panchnamas and memos:
Held: In the present case, the manner and method in which the 
panchnamas and memos were prepared leave the prosecution high and 
dry – The witnesses to the panchnamas and the seizures acted as mere 
attestors to the documents and did not disclose in their own words as to 
how these objects were discovered, i.e., at whose instance and how – No 
lawful validity attaches to these proceedings recorded by the police in the 
context of collection of all this evidence – Code of Criminal Procedure, 
1973. [Para 31, 32]
3
Evidence – DNA evidence- hair, source and origin suspected – 
Non-reliance upon:
Held: In the present cas
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