PW3 on the other hand speaks not of a confession but an exculpatory statement made by A1 that it was A2 and A3 who killed the deceased. PW12 and PW14, two other witnesses who spoke of the extra-judicial confession also spoke in tandem with what PW3 stated. The exculpatory statement made absolving himself and accusing the co-accused, by its very nature is unreliable. It cannot be put against the other accused, for no cross examination being provided to them, of the one who made that statement. It cannot also incriminate the person who made the statement since there is no element of confession in the recital as spoken of by three witnesses, as against one.
11. It is also of relevant import that PW8 specifically spoke of a
mob having detained A1 and A2 and PW8 having taken A1 aside
to speak to him, when he made the confession in the presence of
PW3; thus again raising a suspicion of whether PW12 and PW14
were privy to the statement made by A1. The extra-judicial
confession by its very nature being a weak piece of evidence has
not at all been proved in the present case. In any event, the
statement is made when the two accused were detained by a
mob, on the accusation of murder. Obviously, there is
considerable pressure put on the detained persons, who could
have spoken, on undue duress or under threat of violence. In
fact, the records indicate that after arrest, when A1&2 were taken for medical examination, they had injuries on their body, which again cuts at the root of credibility of the statement made; which anyway has doubtful standing as a confession.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 2507 of 2026
Papan Sarkar @ Pranab Vs State of West Bengal
Author: K. VINOD CHANDRAN, J.
Citation: 2026 INSC 528
The son of the de-facto complainant found missing from the
evening of 31.10.2012, turned up dead on the next day in a field,
head down with the legs sticking up from a ditch. His three
companions of the previous day found drinking and roaming
around were rounded up and arrayed as accused. The
prosecution went to trial with the circumstances of the last seen
together theory, extra-judicial confession, recovery of the
objects used as weapons & a motorbike, seizures from the place
of occurrence, oral testimonies and the serological report. The
trial court convicted the accused and sentenced them, which was
confirmed by the High Court. Two out of the three accused are
before us in appeal i.e. the first and second accused, the third
having not filed an appeal.
2. We have heard Ms. Ashima Mandla, learned Counsel
appearing for the appellant and Ms. Shraddha Chirania, learned
Counsel appearing for the respondent who also filed written
notes of submissions.
3. Before the trial court, sixteen witnesses were examined and
40 exhibits were marked, which included documents. The trial
court found from the last seen together theory, extra-judicial
confession; both spoken of by more than one witness, testimony
of PW-4 who spoke of A3 having come to her house on the very
same night, the recovery of the objects used as weapons, the
seizures carried out and the serology report, that a complete
chain of circumstances was established to nail the accused with
the crime of premeditated murder. The multiple depositions
regarding the last seen together theory and the extra-judicial
confessions corroborated each other. So did the extra-judicial
Page 3 of 16
Crl. A. No.2507 of 2026 etc.
confession of the murder having been committed in a field,
corroborated by the recovery of the body from the field and the
detection of alcohol in the stomach, corroborated the testimony
of the deceased having been found drinking with the accused.
The High Court too listed out the above circumstances to convict
the accused.
4. We have to examine each of the circumstances as pointed
out by the trial court and affirmed by the High Court. In the
present appeal, PW1 is the de-facto complainant, the father of the
deceased. The FIS was taken down as recited by PW1, by PW2.
It was the testimony of PW1 that on the evening of 30.10.2012 at
around 4 PM, the three accused came on a motorbike and his son
accompanied them on another motorbike, belonging to PW1.
When his son did not reach home by 8 o’Clock, he searched for
him along with PW3 and PW8. He also spoke of PW4, the aunt of
A3 having spoken of A3 having approached her on the same
night. On the next day morning, he heard about the death of his
son and the detention of A1 and A2 by villagers. The last seen
together theory commences from PW1’s testimony, of his son
Page 4 of 16
Crl. A. No.2507 of 2026 etc.
having gone with the three accused at about 4 PM and is taken
forward, by the prosecution, through PW3, PW11 and PW14.
5. PW3 spoke of having seen the accused together with the
deceased roaming at around 10 AM and at 5 PM, in his presence,
PW1 having enquired about the deceased with his elder son. He
spoke of having searched for the son of PW1 at the house of A1
and A3. A1 was not in his house and A3 is said to have gone with
a truck. PW3 also spoke of A3 having come back at night with his
father to enquire about the whereabouts of the deceased with
PW1. The said statement is in contrast with the testimony of PW14
that A3 along with his father and another person came to PW1 on
the same night and threatened him; not stated by PW1 itself.
PW14 also spoke of having seen the accused and the deceased
roaming around at 5 PM. PW3’s testimony that he had seen the
deceased with the accused at 10 AM is of no use since PW1
admits that his son was at home after that and he accompanied
the accused only at 4 PM, after which PW14 had seen him at 5
PM, the dead body having been recovered on the next day
morning.
Page 5 of 16
Crl. A. No.2507 of 2026 etc.
6. One other crucial witness projected by the prosecution is
PW11 who testified that she saw the four men drinking in the
field behind the BDO office, on the evening of 30.10.2012 when
she was returning from work. The trial court and the High Court
laid emphasis on this testimony especially since the post mortem
report indicated alcohol in the stomach of the deceased, which
was held to have corroborated the testimony of PW11. However,
a close reading of the cross-examination of PW11 raises grave
suspicion about her testimony. She admitted in her crossexamination
that the BDO office was open till evening and that
the locality was thickly populated; reducing the chances of a
drinking spree in public. The justification for her presence in the
locality was that she was returning from work, but, she was
unable to point out or specify the house in which she worked, the
name of her employer or even the locality in which the house
was situated. We cannot but opine that PW11’s testimony does
not inspire enough confidence to make it an incriminating
circumstance to find the accused guilty of the offence alleged on
the strength of the accused and the deceased having been seen
together in the evening of 30.10.2012, that too drinking, in the
Page 6 of 16
Crl. A. No.2507 of 2026 etc.
field behind the BDO office. One other witness, PW13, put forth
to speak on the four persons having come to the hotel in which
he was employed at 6 pm, turned hostile.
7. Be that as it may, we have the evidence of PW1 and PW14,
the first of whom spoke of the accused having taken the
deceased from his house at 4 PM and PW14 having testified that
the four persons together were seen roaming at around 5 PM.
What assumes significance in placing reliance on the last seen
together theory is the gap between the time they were seen
together and the death having occurred. The proximity of the
death having occurred within a short time after the accused and
the deceased were seen together is most relevant, for the said
fact to be taken as an incriminating circumstance against the
accused. When the time gap is large then there could be
intervening circumstances, which snaps the link and prevents an
adverse inference against the accused merely for the reason that
the accused does not put forth an explanation as to when he
parted company with the deceased (State of Goa v. Sanjay
Thakran and Another1).
1 (2007) 3 SCC 755
Page 7 of 16
Crl. A. No.2507 of 2026 etc.
8. Immediately, we have to examine the postmortem report,
which notices the time of autopsy as 31.10.2012 at 2.10 PM, the
inquest having been at 10.15 AM, which report was proved in
trial by the Doctor examined as PW10. The postmortem report
indicates the loss of left eye with massive lacerations around
both the left and right eyes, sharp cut injuries and massive
lacerations on the face and even on the occipital bone on the
posterior aspect of the skull as also burning of the right side of
the face along with the right shoulder. No doubt the death was
delivered in a brutal manner, and the Doctor speaks of death
having been caused due to the shock by reason of the wounds
sustained and the resultant hemorrhage. The Doctor does not
speak of any single injury having led to the death.
9. What is pertinent in considering the circumstance of last
seen together is that the postmortem report indicates the time of
death as ‘24 hours not passed during examination after death of
deceased’. The time provided is very elastic and since PW14
stated that he saw the deceased along with the accused at 5 PM
on the previous day, death could have happened at any time in
the intervening night or in the morning, before the body was
recovered at around 10 AM on 31.10.2012. The time frame being
quite large to term death as proximate, there can be no
conviction based on the last seen together theory in the present
case. We have to hence, necessarily look at the other
circumstances, which together, if found incriminating enough,
the last seen together theory also would offer a link, though a
weak one, in the chain of circumstances.
10. The next circumstance projected by the prosecution is the
extra-judicial confession as spoken of by PW3, PW8, PW12 and
PW14. As per their testimony, when PW1’s son did not return
even on the next day, there was a massive search carried out,
and the villagers had detained A1 and A2. It is the testimony of
PW8 that he assured A1 that the mob would not assault him upon
which A1 confided to him that the three accused together
murdered PW1’s son. The testimony was that A1 told PW8 that,
at first A3 hit the deceased and thereafter he insisted that A1 and
A2 assault him and thus together they killed the deceased. It is
pertinent that in cross-examination PW8 specifically stated that
while A1 made the confession PW3 was present with him. PW3
on the other hand speaks not of a confession but an exculpatory
statement made by A1 that it was A2 and A3 who killed the
deceased. PW12 and PW14, two other witnesses who spoke of
the extra-judicial confession also spoke in tandem with what PW3
stated. The exculpatory statement made absolving himself and
accusing the co-accused, by its very nature is unreliable. It
cannot be put against the other accused, for no cross
examination being provided to them, of the one who made that
statement. It cannot also incriminate the person who made the
statement since there is no element of confession in the recital as
spoken of by three witnesses, as against one.
11. It is also of relevant import that PW8 specifically spoke of a
mob having detained A1 and A2 and PW8 having taken A1 aside
to speak to him, when he made the confession in the presence of
PW3; thus again raising a suspicion of whether PW12 and PW14
were privy to the statement made by A1. The extra-judicial
confession by its very nature being a weak piece of evidence has
not at all been proved in the present case. In any event, the
statement is made when the two accused were detained by a
mob, on the accusation of murder. Obviously, there is
considerable pressure put on the detained persons, who could
have spoken, on undue duress or under threat of violence. In
fact, the records indicate that after arrest, when A1&2 were taken
for medical examination, they had injuries on their body, which
again cuts at the root of credibility of the statement made; which
anyway has doubtful standing as a confession.
12. Now we come to the recoveries made allegedly with the
aid of the accused. The dead body was found in a field, an open
space with free access to anybody. The stone and glass piece are
said to have been recovered from the place of occurrence itself,
albeit with the aid of the accused. We have serious doubts about
the recoveries having the status of a recovery under Section 27 of
the Indian Evidence Act, but for the time being we would assume
it to be so. A stone, weighing 1-1.5 kg and a glass piece were
said to have been recovered, on the showing of the accused,
specifically A1 and A2. The seizure list as seen from the records
does not indicate the specific place from which it was recovered
other than stating that it is ‘from the PO at the paddy land of
Jogesh Roy’. The learned State Counsel would argue that though
the paddy field had free access, it was thick with stalks and there
could definitely be a concealment; the growth not borne out from
the evidence. We do not for a moment doubt that there could be
concealment even in a public place or in a field with thick
vegetation, but there is no statement recorded from the accused
as to such a concealment having been effected and then the
police having been led to the location and the material object
recovered from the place of concealment. Recital in the seizure
list is only that ‘on being shown and certified by accused 1 and 2’.
Concealment and its knowledge, revealed from the statement of
the accused, is the crucial ingredient of Section 27 which can
lead to that being used in a criminal trial, any other confession to
a police officer being excluded as self-incriminating.
13. Further, the said recoveries are/ made on 02.11.2012 and
the same was witnessed by PW5, the Pradhan who had come to
the place of occurrence at the time of the recovery of body, on
31.10.2012 and at the time of recovery, on 02.11.2012. In fact, the
testimony of PW5 is that the signature on the inquest report and
the seizure report are his and it relates to one broken spectacles,
one stone, one gangee and four pairs of sandals and one single
sandal. It is not clear from the testimony of PW5 as to which were
seized by the police on 31.10.2012 and what was recovered on
02.11.2012. The recovery thus has no clarity and more
importantly the accused pointing out the concealed objects or
even their presence at the time was not deposed to by PW5.
14. The recovery on 02.11.2012, as evidenced from the seizure
report, was with respect to four items; the stone, a broken glass
and two spectacles, one of which was broken, not testified to by
PW5. The other objects were seized at the time of inquest from
the place of occurrence from where the body was recovered.
Yet again as we already observed there is no statement taken of
the accused of a concealment and the recoveries made do not
qualify to be one under Section 27. The stains on the stone found
at the place of occurrence and the serology report of it being
human blood, hence, is of no consequence.
15. We also have to observe that the seizure is said to have
been made in the presence of both the accused without
indicating as to who out of the two revealed the concealment. As
a matter of fact, PW16, the Investigating Officer, testifies that
both the accused A1 and A2 informed him that if they are taken to
the place of occurrence they would recover the stone and
broken glass with which the deceased was murdered and also
the motorcycle of Samir; the last of which we will deal with a little
later. Here we have to emphasize that PW5, the witness to the
recovery, categorically stated that neither the stone nor the glass
piece was produced in Court and hence not confronted to the
witness. More pertinently the alleged weapons of assault were
not shown to the Doctor to elicit his opinion as to whether the
said objects could have caused the injuries found on the dead
body. The recoveries are of no avail and do not form a clinching
incriminating circumstance against the accused.
16. Yet another recovery is that of the motorcycle of the
deceased. In fact, PW12 speaks of information received about
the motorcycle having been kept in a house by A1 and A3 and
recovered from there, prior to the arrest of the accused and in
the course of the ongoing search, in the morning of 31.10.2012.
PW9 is the house owner who spoke of three persons having
come to his house to park the vehicle on 30.10.2012, however, he
failed to identify the accused. The discrepancy noticed insofar
as the recovery of the alleged weapons of assault, equally
applies in the case of the seizure of the motorcycle also.
Pertinent also is the fact that the motorcycle though handed over
Page 14 of 16
Crl. A. No.2507 of 2026 etc.
to PW1 on challan the same was not produced before Court nor
was its registration details proffered to indicate that it belongs to
the deceased or PW1, as is the version of PW1. PW1 was also not
asked about the recovery of the motorcycle and handing over by
the police.
17. One other incriminating circumstance was projected
through PW4, the aunt of A3. PW4 was put in the box to speak of
A3 having come to her on the night of 30.10.2012 to keep his bike
in her house, having run out of petrol. There was nothing elicited
from PW4 in her chief examination but for marking a statement
recorded by the Magistrate. In cross examination she
categorically stated that after the death of his son, PW1 had been
frequently visiting her and threatening her with dire
consequences if she does not depose falsely in the instant case.
It was in re-examination that she was asked by the Prosecution
about the statements made to the police, clearly impermissible.
Even when she was asked the said questions, first she denied A3
having come to her house at night and then she admitted it.
There can be no credence placed on such a witness or an
incriminating circumstance found from her testimony. One other
Page 15 of 16
Crl. A. No.2507 of 2026 etc.
aspect is that there is no motive projected, which we are quite
conscious is not imperative when the chain of circumstances is so
complete as to establish only a hypothesis of guilt, without
leaving any room for a hypothesis of innocence. In the present
case, the absence of motive, especially when the murder was
brutal, is yet another aspect raising a reasonable doubt.
18. In the totality of the circumstances, each having been
examined by us, none of those projected having qualified as
incriminating, linking the accused to the murder, we cannot but
reverse the order of conviction handed down by the Trial Court
and affirmed by the High Court. The appeals stand allowed and
the appellants herein shall stand released forthwith if not already
released as per our orders on the last day of hearing, unless they
are required in any other case and if released, their bail bonds
shall stand cancelled.
19. We place on record our appreciation for the meticulous
preparation and adroit presentation of both the learned Counsel.
20. Before we leave the matter, we see that the appeals have
been filed only by A1 and A2. A3 too has been languishing in jail
along with A1 and A2 and for reasons best known has not chosen
Page 16 of 16
Crl. A. No.2507 of 2026 etc.
to file an appeal. In the circumstance of having acquitted the two
accused, it is only proper that A3 also be provided assistance to
file an appeal. We direct the Member Secretary, National Legal
Services Authority to get in touch with the Member Secretary of
the West Bengal State Legal Services Authority, who shall
through the Secretary of the District/Taluk Legal Services
Authority, having jurisdiction over the prison in which A3 is
imprisoned, provide sufficient assistance to A3 and ensure that
an appeal is filed before this Court from the impugned judgment.
The same shall be done within a period of two months and the
compliance be reported to us, for which purpose alone the
matter is posted on 20th of July, 2026.
21. Pending application(s), if any, shall stand disposed of.
……….……………………. J.
(SANJAY KUMAR)
………….…………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
MAY 22, 2026.
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