Law Web: Whether the presence of Advocate of accused is mandatory if the confession of the accused is recorded without audio-video electronic means?

The plea regarding absence of a counsel during proceedings before the

Magistrate under section 164, CrPC resulting into any prejudice, are

misconceived. What mandatorily is needed, as noted earlier, is that the

Magistrate must satisfy himself of the voluntariness of the statement and all

the statutory safeguards which includes bringing the repercussions and the

voluntariness of making confessions to the knowledge of the accused, must

be meticulously complied with. It is pertinent to take note of the first Proviso to

Section 164(1), added with effect from 31.12.2009, which specifies that:

“Provided that any confession or statement made under this subsection

may also be recorded by audio-video electronic means in the

presence of the advocate of the person accused of an offence.”

(emphasis supplied)

41. Section 164 of the Code thus does not contemplate that a confession or

statement should necessarily be made in the presence of the advocate(s),

except, when such confessional statement is recorded with audio-video

electronic means.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRL.) NOS. 446-447 OF 2019

CRIMINAL APPEAL NOS. 1174-1175 OF 2019

Manoharan Vs State by Inspector of Police,

SURYA KANT, J.

Dated:NOVEMBER 07, 2019.

These review petitions are directed against the judgment dated

01.08.2019 passed in Manoharan v. State by Inspector of Police1, wherein

this three-Judge Bench had affirmed conviction of the accused Manoharan for

offences punishable under Sections 302, 376(2)(f) and (g) and 201 of the

Indian Penal Code (in short “IPC”) and by majority upheld the death sentence

confirmed by the High Court.

FACTUAL MATRIX

2. Brief facts of the present case are as follows:

1 (2019) 7 SCC 716.

‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were enrolled in Classes

V and II respectively in a private school at Coimbatore and would commute

around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On

29.10.2010 the children left as usual with their school bags and lunch boxes

and stood about two-hundred feet away from their home, in front of the

Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up

spot but did not find the children there. He contacted the children’s father,

Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being

in Hyderabad, PW-5 was unable to provide an immediate reply to the query of

PW-2 and hence called his wife, the children’s mother - Sangeetha (PW-8),

who informed him that both X and Y had already left home. Since the father of

the children (PW-5) was already on his way back to Coimbatore, he entrusted

his wife to look out for the children and co-ordinate with the van driver.

Sangeetha informed Karthikeyan that the children had already left the house,

whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6)

started searching for the children.

3. Kamala Bai (PW-9), the paternal grandmother of the children had gone

to a Jain Temple around 8:00 a.m. in the morning. Upon returning home at

10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the

children had been picked up by a former van driver and it was conjectured that

the children must be in school. Vijay Kumar (PW-1) then went to the school

and found that the children had however not reached. After a frantic but futile

search, PW-1 lodged a police complaint (Ex. P1) with Vasuki (Sub-Inspector of

Police, PW-42) at around 11AM under Section 363 of the Indian Penal Code

(in short “IPC”).

4. The Investigating Officer (“IO”, PW-47), thereafter, took over

investigation and recorded statements of the informant (PW-1), the school’s

principal - Anthony Raj (PW-10), as well as of the grandmother (PW-9) and the

just returned father of the children (PW-5). First trace of the missing children

was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that

one Chinnasamy (PW-22) had called to inform that two school bags with

identity cards bearing names of X and Y were found floating in and later fished

out from the Parambikulam-Axhiyar Project (“PAP”) Canal. A second lead

came to the Police from Karthikeyan (PW-2) who received a call from his

erstwhile employee – Anbu @ Gandhiraj (PW-7) who conveyed that one

Mohanakrishnan had borrowed a Maruti Omni Van from him that morning.

This aroused Karthikeyan’s suspicion since Mohanakrishnan was his former

employee whose services were terminated after it had been discovered that

he was borrowing money from the parents whose children were being

transported to school by PW-2’s agency. The IO (PW-47) accordingly advised

both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert the police

whenever Mohanakrishnan came to return the Omni Van. At around 9:45PM,

Anbu alerted the police that Mohanakrishnan had come to return the Van and

he had also confessed to the kidnapping, rape and murder of the two missing

children along with his friend Manoharan. Pursuant to the information received

by Anbu, Mohanakrishnan was arrested and a confessional statement was

recorded in the presence of Anbu (PW-7) and one Santosh Kumar (not

examined as a witness). The Maruti Omni Van along with one Nokia

Cellphone and the driving license of Mohanakrishnan were also seized. The

IO consequently sent a report (Ex. P-30) for alteration of charge from under

Section 363, IPC to Sections 364(A), 376, 302 read with Section 201, IPC

which was received by the Magistrate at 11:45PM.

5. Having observed certain saliva and yellow-coloured stains on the seized

van, the IO requisitioned forensic assistance of Sarvanan (PW-43), Deputy

Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the

presence Sarvanan (PW-43), Anbu (PW-7) and one Santosh Kumar

(unexamined), the van was thoroughly searched wherein a lady’s underwear

bearing the inscription “SBT Kidswear 75 c.m.” with hair strands was

recovered. Sarvanan (PW-43) further collected the betel nut saliva stains on

the left door of the van with a cotton swab for chemical examination, as well

as dried yellow-colour stains found on the seat and floormat, and the clothes

(namely pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar

Exs. P-5 & P-6). Mohanakrishnan subsequently led a police team to the place

where he claimed to have raped X as well as to Deepalapatti, the place from

where the children had allegedly been pushed into the running waters of the

PAP canal.

6. The girl child’s body was found the subsequent morning in the PAP

canal by villagers near Palladam Taluk at 9:30AM, and the boy’s body was

later recovered from the canal around 12 kms from Deepalapatti. Postmortem

was conducted by Dr. Jayasingh (PW-46) at the Coimbatore Medical College

and Hospital, wherein the following injuries were recorded on X’s body:

“The body was first seen by the undersigned at 02.15 pm on

30.10.10. Its condition then was rigor mortis present all over the

body. Post mortem commenced at 02.15 pm on 30.10.10.

Appearances found at the postmortem:-

Moderately nourished body of a female aged 10 yrs. Finger and

toenails bluish in colour. The body wearing blue colour “T” shirt with

white colour sticker named as “Suguna Rips” noted left side, black

colour track suit with white line order, white colour socks and white

colour shoes and rose colour shimmis. White colour frothy secretions

noted over both nostrils and mout. Water suddening noted over both

palms and soles.”

7. The following ante mortem injuries noted over the body:

“1. Liner vertical scratch marks 4 in numbers in varying size noted

over lateral aspect right elbow joint.

2. Transverse scratch abrasions 3 in number in varying size noted

over lateral aspect of left upper forearm.

3. A scratch mark 3 in number noted over lower part of left arm.

4. Contusion 2x1 cm x 0.5 depth noted over in the posterior

fourchettes and lateral wall of vagina. Hymen intact.

5. On examination of anus: - Anus found roomy measuring 3 cm

in diameter and mucosal tear 1x0.5 cm x mucosal deep noted over

left lateral aspect of the anus at the level of muco-cutaneous

junction.

On dissection of Thorax and Abdomen: Contusion 4 x 2 cm noted

over anterior aspect of lower end of uterus.”

8. Similarly, in Y’s postmortem examination, the following ante mortem

injuries were noted:

“1. Bluish contusion 3 x 2 cm noted on middle of left side neck, 3

cm left to midline.

2. Bluish contusion 3 x 2 cm noted over outer aspect of right

forearm.

3. Bluish contusion noted over right side third intercostal space.

4. On dissection of scalp, skull and dura: sub scalpel contusion 20

x 10 cm noted over bi frontal region and bi parietal region. Diffuse

sub dural and sub arachnoid haemorrhages noted on both cerebral

hemispheres.

5. On bloodless dissection of neck: contusion 4 x 3 cm noted on

left side middle of neck. Hyoid bone found intact.”

9. The present review-petitioner, Manoharan (hereinafter “petitioner”) who

was stated to have perpetrated the crime along with Mohanakrishnan, was

arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a

disclosure statement to the police (Ex. P-21) on the basis of which the IO

(PW-47) recovered lunch box of Y from his house. Further, after being

produced before the Magistrate the same day, the petitioner was sent to

judicial custody.

10. A Test Identification Parade was conducted on request of the IO

whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver of the

van in which the children had been kidnapped. Subsequently, both the

petitioner and Mohanakrishnan were medically examined on 04.11.2010

whereby samples of their blood and saliva were sent to the Tamil Nadu

Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner

was conducted by Dr. J.R. Singh (PW-46), who in his medical report (Ex. PPage

56) found him potent and further noticed signs of injury around his private

parts.

11. During recovery proceedings under Section 27 of the Indian Evidence

Act (in short “IEA”), whilst in police custody, Mohanakrishnan shot and

wounded two police officers and was consequently shot dead by the Police on

09.11.2010. Thus, the trial against Mohanakrishnan was abated and the

petitioner alone was left to be tried as an accused.

12. Succinctly, the prosecution’s version of events is that Mohanakrishnan

using a borrowed school van, picked up two children (X and Y) who were

waiting to go to school at about 7:50 a.m. He further picked up his friend,

Manoharan from his house at 9:30 a.m. and subsequently, they took the

children to a remote location where after the girl child was raped and

sodomised. Subsequently, Manoharan and Mohanakrishnan purchased cow

dung powder (a poisonous substance) which was mixed in milk and then

administered to the children to end their life. However, both the children spat

out the substance and only ingested a small portion. Since poisoning did not

work, Mohanakrishnan and the petitioner threw both the children into the

turbulent waters of a nearby Canal, hence drowning them.

CASE HISTORY

13. Over the course of the trial, the prosecution examined forty-nine

witnesses in all including persons who witnessed abduction, purchase of milk

and cow dung powder and those having seen children in the custody of

accused persons at various places. Further, various medical and forensic

evidence were produced, proving drowning and rape as well as injuries on

Petitioner’s body. A ‘last seen theory’ was built by the prosecution, in addition

to use of a confessional statement made by the petitioner under Section 164,

CrPC. The Trial Court ultimately held the Petitioner guilty under Section 120-

B, 364-A, 376, 302 r/w 34 and 201 IPC. Under Section 376, the Petitioner was

awarded life sentence and for offence under Section 302 IPC he was given

death sentence.

14. The Madras High Court set aside conviction of Petitioner under Sec.

120-B and 364A IPC but confirmed the sentences under Sec. 376, 302 r/w 34

and 201 IPC. After considering aggravating and mitigating circumstances, the

High Court confirmed death sentence awarded by the Trial Court.

15. Thereafter the Petitioner filed a Special Leave Petition under Article 136

whereby this Court dismissed his appeal and confirmed the death sentence by

majority, observing that the case fell in the category of the ‘rarest of rare’

cases. After considering all evidence on record and contentions of the

counsels, the majority opinion of this Court read as follows:

“In the circumstances, we have no doubt that the trial court and High

Court have correctly applied and balanced aggravating

circumstances with mitigating circumstances to find that the crime

committed was cold blooded and involves the rape of a minor girl

and murder of two children in the most heinous fashion possible. No

remorse has been shown by the Petitioner at all and given the nature

of the crime as stated in paragraph 84 of the High Court’s judgment it

is unlikely that the Petitioner, if set free, would not be capable of

committing such a crime yet again. The fact that the Petitioner made

a confessional statement would not, on the facts of this case, mean

that he showed remorse for committing such a heinous crime. He did

not stand by this confessional statement, but falsely retracted only

those parts of the statement which implicated him of both the rape of

the young girl and the murder of both her and her little brother.

Consequently, we confirm the death sentence and dismiss the

appeals.”

16. Khanna J., in his minority opinion also upheld conviction under the

various offences concerned, but dissented on the quantum of sentence,

holding as follows:

“I would, therefore, uphold and maintain conviction of the appellant

under Sections 302, 376(2)(f) and (g) and 201 IPC and the

sentences awarded under Sections 376(2)(f) and (g) and 201 IPC.

To this extent the appeal is dismissed. In view of the aforesaid

discussion and on balancing aggravating and mitigating

circumstances, in my opinion, the present case does not fall under

the category of “rarest of the rare” case i.e. there is no alternative but

to impose death sentence. It would fall within the special category of

cases, where the appellant should be directed to suffer sentence for

life i.e. till his natural death, without remission/commutation under

Sections 432 and 433 CrPC. To this extent I would allow the appeal.”

17. The Petitioner then filed the present petition for review of the said

judgement and order dated 01.08.2019, which was heard at considerable

length in open Court following the parameters evolved in Mohd. Arif @

Ashfaq v. Registrar, Supreme Court of India2, wherein a Constitutional

Bench of this Court held that in cases of death penalty, since the punishment

is irreversible and Article 21 of the convict is violated, it is necessary to provide

at least one opportunity for oral arguments on the question of sentence.

2 (2014) 9 SCC 737.

SCOPE OF REVIEW

18. At the outset, it may be clarified that the scope of Review even in death

penalty cases has been narrowed down in Vikram Singh v. State of Punjab3,

laying down that review can only be on a glaring error apparent on the face of

the judgement or order. A mere change or addition of grounds cannot be

allowed at the stage of review. This Court thus held as follows:

“23. In view of the above, it is clear that scope, ambit and parameters

of review jurisdiction are well defined. Normally in a criminal

proceeding, review applications cannot be entertained except on the

ground of error apparent on the face of the record. Further, the

power given to this Court under Article 137 is wider and in an

appropriate case can be exercised to mitigate a manifest injustice.

By review application an applicant cannot be allowed to reargue the

appeal on the grounds which were urged at the time of the hearing of

the criminal appeal. Even if the applicant succeeds in establishing

that there may be another view possible on the conviction or

sentence of the accused that is not a sufficient ground for review.

This Court shall exercise its jurisdiction to review only when a glaring

omission or patent mistake has crept in the earlier decision due to

judicial fallibility. There has to be an error apparent on the face of the

record leading to miscarriage of justice to exercise the review

jurisdiction under Article 137 read with Order 40 Rule 1. There has to

be a material error manifest on the face of the record with results in

the miscarriage of justice.”

19. The above cited decision was reiterated in Mukesh v. State of (NCT

of Delhi)4 where also similar restrictive principles were applied and re-affirmed

while considering the scope of review in death penalty cases. Reliance was

placed on the dictum in Kamlesh Verma v. Mayawati5, prescribing that

3 (2017) 8 SCC 518.

4 (2018) 8 SCC 149.

5 (2013) 8 SCC 320.

Courts should refrain from re-appreciating the entirety of evidence only to

arrive at a different possible conclusion, besides illustrating an inexhaustible

list of instances where review shall not be maintainable. The relevant part

reads as follows:

“20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen

concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing

of the case.

(iv) Review is not maintainable unless the material error, manifest on

the face of the order, undermines its soundness or results in

miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an

erroneous decision is reheard and corrected but lies only for patent

error.

(vi) The mere possibility of two views on the subject cannot be a

ground for review.

(vii) The error apparent on the face of the record should not be an

error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain

of the appellate court, it cannot be permitted to be advanced in the

review petition.

(ix) Review is not maintainable when the same relief sought at the

time of arguing the main matter had been negatived.”

20. It is, therefore, to be kept in mind that the scope of a Review is more

constrained than that of an appeal. A party cannot be allowed to reurge the

case on merits to effectively seek re-appreciation of evidence when the matter

has already been decided earlier, even if on different grounds. Interference in

the earlier judgement assailed in a Review is permissible only on the basis of

an error apparent on the face of record or discovery of important new

evidence which has a direct bearing on the ultimate outcome of the case and

if not well appreciated, would cause manifest injustice.

21. Learned Senior Counsel for the petitioner, Mr. Siddharth Luthra has

made a deft challenge to our judgment, through a multifaceted attack on both

merits and procedure of the case. He forcefully urged for setting aside the

conviction and in the alternate, requested commutation of the sentence of

death.

VOLUNTARINESS OF CONFESSION & EFFECT OF RETRACTION

22. The arguments for the Petitioner begun with challenge to reliance by

this Court on confessional statement of the accused. Mr. Luthra strenuously

contended that strict compliance with the safeguards for recording a

confessional statement as mandated under Section 164 are mandatory, as

ruled in Shivappa v. State of Karnataka6. He strongly disputed the

admissibility of the confessional statement made by the petitioner before a

Magistrate on 20.11.2010 on the premise that:

(a) Confession was coerced and involuntary, and in contravention of

Section 163, CrPC and Section 24, IEA for first, the petitioner had been

physically assaulted by the police whilst in custody, as evidenced

through answer to Question 8 posed by the Magistrate during

preliminary examination on 19.11.2010. Second, the petitioner was

6 (1995) 2 SCC 76

under severe psychological stress owing to the in-custody killing of the

co-accused Mohanakrishnan on 09.11.2010; and third, circumstances

surrounding confession were suspicious, for the IO (PW-47) moved an

application stating that the petitioner was ready to volunteer a

confession when he was in judicial and not police custody.

(b) The Magistrate failed to comply with the mandatory procedure as

prescribed under Section 164, CrPC since he did not inform the

petitioner that he would not be sent to police custody after recording of

the confessional statement.

23. In light of the vehement attempt at assailing the confessional statement

as being non-voluntary and violative of the right guaranteed under Article

20(3) of the Constitution and in the alternate its reliance for having been

retracted by the petitioner, it may be briefly noticed that on a conjoint reading

of the confessional scheme comprising of Sections 163, 164 CrPC and

Section 24 IEA as construed in a catena of decisions of this Court, it is

obvious that even in the absence of an express provision for retracting a

confessionary statement once made, the Courts have preferred a rule of

prudence whereby in case of retraction, the Court reduces the probative value

of such confessionary statements and seeks corroborating evidence.

24. Hence, the cornerstone of a valid confession in India is only whether

such a statement was made in compliance with statutory provisions which

mandate that the same must be before the Magistrate after compliance with

certain safeguards meant to ensure voluntariness and lack of coercion by the

police. This has been so noted by this Court in Bharat v. State of U.P.7:

“7. ... Confessions can be acted upon if the court is satisfied that

they are voluntary and that they are true. The voluntary nature of the

confession depends upon whether there was any threat, inducement

or promise and its truth is judged in the context of the entire

prosecution case. The confession must fit into the proved facts and

not run counter to them. When the voluntary character of the

confession and its truth are accepted it is safe to rely on it. Indeed a

confession, if it is voluntary and true and not made under any

inducement or threat or promise, is the most patent piece of

evidence against the maker. Retracted confession, however, stands

on a slightly different footing. As the Privy Council once stated, in

India it is the rule to find a confession and to find it retracted later. A

court may take into account the retracted confession, but it must look

for the reasons for the making of the confession as well as for its

retraction, and must weigh the two to determine whether the

retraction affects the voluntary nature of the confession or not. If the

court is satisfied that it was retracted because of an after thought or

advice, the retraction may not weigh with the court if the general

facts proved in the case and the tenor of the confession as made

and the circumstances of its making and withdrawal warrant its user.

All the same, the courts do not act upon the retracted confession

without finding assurance from some other sources as to the guilt of

the accused. Therefore, it can be stated that a true confession made

voluntarily may be acted upon with slight evidence to corroborate it,

but a retracted confession requires the general assurance that the

retraction was an after thought and that the earlier statement was

true. ...”

25. The objective behind such a provision has been explored by this Court

in various decisions wherein it has been noted that provisions permitting use

of confessionary statements in criminal trials were statutorily included as an

acknowledgement of the possibility that in certain circumstances an accused

may voluntarily confess to his offence(s).

7 (1971) 3 SCC 950

26. From a chronological analysis of the confessional statement of

Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary examination

held on 19.11.2010, it is apparent that the learned Magistrate - S.S.

Sathiamoorthy (PW-28) duly complied with all procedural requirements for

recording of a confessional statement and affirmatively satisfied himself of the

voluntariness of the petitioner’s confession:

a. During preliminary examination, the petitioner informed the

Magistrate that he was brought from Central Jail, Coimbatore on

19.11.2010, hence abridging the possibility of any coercion or

influence by the police. Further, a perusal of the record shows that

petitioner was last in police custody only on 11.11.2010 and hence

there is no doubt that he had been in judicial custody for some time

prior to giving a confessional statement. Hence per Abdul Razak

Murlaza Dafadar v. State of Maharashtra8 it can be inferred that he

was not under the influence of the investigating agency.

b. In reply to Question 8 during preliminary examination on 19.11.2010,

when asked by the Magistrate whether someone tortured him, the

petitioner does say that he was beaten by the police. However, when

asked whether the “police tortured and compel you to give statement

like this”, the petitioner denied any such torture or compulsion.

Similarly, when the Magistrate asked him whether he was told some

sweet words such as “the confession statement will be beneficial or

8 AIR 1970 SC 283.

where you threatened by police or by anybody else that if statement

was not given”, the petitioner specifically denied the same. He also

acknowledged the fact that he was not under compulsion to give a

confession statement and that he was aware of the fact that such

statement could be used against him. Further, when re-questioned

by the Magistrate if the petitioner was tortured, he answered in the

negative. Hence, not only was the petitioner inconsistent in his

claims, but further it is evident that the alleged physical assault by

the police, if at all, would have been committed weeks before the

confession. Vague and passing claims of police assault, supposedly

committed far before the confessional date, cannot be a ground for

holding the confession as coerced.

c. After preliminary questioning on 19.11.2010, the petitioner was

entrusted to the Prison Warden and sent back to judicial custody for

reflection “after duly informing him that he was not under obligation

to give confessional statement.” The petitioner was re-produced

before the Magistrate on the next day at 2PM and was again given

an opportunity to change his mind and not confess. The Magistrate

once more satisfied himself of the voluntariness of the petitioner and

the absence of any police influence. Hence, it is clear that an

adequate opportunity to recant was provided and the Magistrate

ensured that any possible lingering effects of alleged beatings or

psychological stress post encounter of co-accused, would have been

mitigated. It is also apparent that the Magistarte duly informed the

petitioner about the repurcussions of his confessional statement, and

made no false assurance of it helping his case, as had been made in

State of Assam v. Rabindra Nath Guha9, which has erroneously

been relied upon by Mr. Luthra.

d. The statement once recorded, was thereafter read out to the

petitioner who signed it to be correct. The Magistrate signed the

statement at 4:30PM on 20.11.2010, and afterwards sent the

petitioner to judicial custody. The Magistrate thus was fully conscious

of his statutory obligation and factually ensured that the petitioner

was not sent to police custody post the confessional statement. It is

further clear that the petitioner was kept in judicial custody for almost

twenty months after the confession, over the course of which there

was no likelihood of him being entrusted to police, and still no protest

or attempt to retract the confession was made by him.

e. The fact that the application to record the petitioner’s statement was

moved by the IO is inconsequential, as the petitioner was neither in

police custody nor, as acknowledged by him, the police officials

interacted with him during judicial custody. It is thus far-fetched to

use the fact that police put forth the request for recording of

confession to suggest that the confession was involuntary or secured

at the behest of police.

9 1982 Cri LJ 216.

27. Further, it is essential to note that the petitioner failed to put forth any

protest against the confessional statement despite having multiple

opportunities during the course of trial. This Court has held earlier in

Shankaria v. State of Rajasthan10 that retractions must be made by the

accused as soon as possible, otherwise there would be a strong presumption

of voluntariness in the confession.

28. The confession, in the present case, was not challenged during stage of

framing of charge or over the course of examination of forty-seven prosecution

witnesses, but instead only partly disputed through a letter written in secret

just before petitioner’s examination under Section 313 of the Code. It is thus

evident that such retraction at the fag-end of the trial, was not natural but

rather meticulously formulated, perhaps as a part of defence strategy. Hence,

there remains no doubt about the voluntariness of the confession of

20.11.2010 or it being unaffected by subsequent retraction.

29. That apart, even if the confession dated 20.11.2010 were to be treated

as being retracted vide letter dated 25.07.2012 (as adopted during

examination under Section 313 of the Code), still the original confession can

be relied upon. Coupled with corroborating evidence, conviction can also be

secured on the strength of such confession. The rule regarding use of such

retracted confessions was noted by this Court in Subramania Goundan v.

10 (1978) 3 SCC 435.

State of Madras11 as well as by a four-Judge Bench of this Court in Pyare Lal

Bhargava v. State of Rajasthan12, holding that:

“A retracted confession may form the legal basis of a conviction if

the court is satisfied that it was true and was voluntarily made. But it

has been held that a court shall not base a conviction on such a

confession without corroboration. It is not a rule of law, but is only a

rule of prudence. It cannot even be laid down as an inflexible rule of

practice or prudence that under no circumstances such a conviction

can be made without corroboration, for a court may, in a particular

case, be convinced of the absolute truth of a confession and

prepared to act upon it without corroboration; but it may be laid down

as a general rule of practice that it is unsafe to rely upon a

confession, much less on a retracted confession, unless the court is

satisfied that the retracted confession is true and voluntarily made

and has been corroborated in material particulars.”

30. Still further, it is clear that even in the retraction statement, the petitioner

has made substantial admissions which read together with prosecution

evidence, are sufficient to convict him. Through the letter dated 25.07.2012,

the Petitioner merely restates his confession with certain omissions and a few

denials as compared to his earlier statement. Although he agrees to be at the

place of the occurrence along with the now deceased Mohanakrishnan

throughout the incident, instead of admitting an equal role in commission of

rape and murder, he portrays himself to be a mere helpless bystander. The

petitioner has attempted to justify his retraction by stating that he had told the

truth to the Magistrate but his statement was not read out to him and hence

the Magistrate’s affirmation under Section 164 of the Code is incorrect.

11 AIR 1958 SC 66.

12 AIR 1963 SC 1094.

31. A comparison of the retraction with the confession dated 20.11.2010

further shows that it is merely an improvement. The Petitioner has admitted to

all the general circumstances of the incident, i.e. having been present at the

scene of all crimes, being friend of the co-accused and of the offences as

claimed by the prosecution to have occurred. However, he merely contends

that the crimes were committed by the co-accused and not by the Petitioner

himself. Regardless thereto, there are sufficient inculpatory admissions in the

letter dated 25.07.2012 to place a strong burden of proof on the Petitioner

under Section 106 of the IEA.

32. Moreover, we must note that the petitioner has not been convicted by

the Courts below or this Court, solely on the basis of his confession made

under Section 164 of the Code. The confession has been corroborated by

enough evidence and it would not be a stretch to state that even independent

of such confessional statement, this Court would nevertheless have reached a

firm conclusion of guilt.

INDEPENDENT RE-APPRECIATION OF EVIDENCE

33. The second contention raised by Mr. Luthra is that this Court decided

the appeal without independently re-appreciating all the material on record.

We are in strong disagreement with this contention. This Court critically

analysed all the material witnesses and documents exhibited on record which

were referred to during the course of arguments. A careful examination of

such evidence lead to a unanimous finding of guilt against the Petitioner. It

was noted by the majority that:

“PW.20, PW.25 and PW.23 all saw the two accused together with the

children at different times on 29.10.2010. Indeed, even if one were to

read the confessional statement of the Appellant together with the

retraction thereof, the fact that he purchased milk at 1.00 p.m. from

PW.23 is clearly made out and the fact that Mohanakrishnan went to

meet the tailor, was also admitted by him in both the original

confessional statement as well as the retraction. It is clear therefore

that the evidence of PW.20 and 23 are corroborated by the

confessional statement and the retraction made by the Appellant and

therefore the factum of the two accused being with the two children

in the vehicle is clearly made out and thus the High Court’s

conclusion that the last seen theory can be relied upon cannot

possibly be assailed.”

34. Such an independent re-appreciation was also conducted by Khanna J.

in his minority opinion in para nos. 23 to 29.

INADEQUACY OF LEGAL REPRESENTATION

35. Mr. Luthra seeks to make a third core challenge by placing reliance on

Article 21 of the Constitution of India, claiming that it mandates adequate and

efficient legal assistance, the denial whereof would amount to condemning

one unheard.

36. There cannot be any quarrel with the cited proposition for it is a

fundamental tenet of criminal jurisprudence, least not because of our

Constitution, that every person has a right to effective legal assistance. In

case an accused cannot afford the same, then it is the responsibility of the

State to provide free legal aid, as definitively noted in Hussainara Khatoon v.

State of Bihar13. However, we feel that such a right has been protected in the

13 (1980) 1 SCC 98.

present case and the legal representation accorded to the petitioner was not

inadequate.

37. At the outset, as noted in State v. Navjot Sandhu14 judicial scrutiny of a

counsel’s performance must be careful, deferential and circumspect for not

doing so would give rise to the dangerous possibility of convicts raising such

pleas of inadequate legal assistance after adverse verdicts. It would also be

useful to cite Strickland v. Washington15 wherein the Supreme Court of the

United States, laid down that to demand re-trial or acquittal on grounds of

inadequate legal representation, the accused must show both that the

assistance of the counsel was deficient per an objective standard of

reasonableness as developed by customary practice, as well as that such

deficiency has with a reasonable probability affected the outcome of the case,

such that had he received adequate representation, the result would have

been different.

38. It is clear that the petitioner has failed to demonstrate either of these

legs in the present case. Although it is correct that seven counsels refused to

defend the Petitioner and there was a resolution by the bar to not take up his

brief, but the Trial Court ensured the services of a legal aid counsel who ably

conducted petitioner’s defence during the trial. The record reveals that from

23.02.2011 till 18.06.2012, no effective proceedings were held and post

18.06.2012, legal aid counsel Mrs. A. Sharmila appeared on behalf of the

petitioner. The length and quality of cross-examination conducted by the court-

14 (2005) 11 SCC 600.

15 466 U.S. 668 (1984).

appointed counsel testifies her legal acumen and professional ability. Hence,

there can be no question on the adequacy of counsel’s performance.

39. Notwithstanding the above determination, we must note that in the

present facts no prejudice has been caused to the petitioner for want of

adequate or proper legal assistance. Not only did the High Court reappreciate

the entire evidence, but it also conducted another examination of the

Petitioner under Section 313, CrPC. Furthermore, the High Court appointed a

Senior Advocate, Mr. A Raghunathan, in addition to Advocate Smt. Vairam, to

provide the best legal services to the Petitioner. Similarly, in appeal, this Court

both re-appreciated the evidence and ensured due legal representation. Even

in the present Review, the petitioner’s interests are protected by an

outstanding Senior Counsel and as a matter of abundant caution, we have

also conducted an elaborate analysis. We thus do not find this to be a case of

deficient legal assistance, affecting the Petitioner’s rights under Article 21 of

the Constitution.

40. The plea regarding absence of a counsel during proceedings before the