Extra-judicial confession of a co-accused cannot be the sole basis for conviction, in the absence of other material: Bombay High Court

The Bombay High Court acquitted a man after 9 years in jail on a death sentence for murder through a Bench of Justices S.S. Shinde and Sarang V. Kotwal in the case of Madhukar Vijay Mali v. State of Maharashtra (CRIMINAL APPEAL NO.626 OF 2017)


In January of last year, an Additional Sessions Judge found Accused Nos. 1 and 2 (the appellants) guilty of crimes covered by Sections 302 (murder) and 324 (voluntarily inflicting harm with dangerous weapons) as well as Section 34 (common intention) of the Indian Penal Code [IPC].

The accusation against the accused persons was that they had previously killed a restaurant employee after the victim refused to provide them with alcohol. Then, allegedly, they assaulted a worker at a different restaurant approximately 100 metres away in a similar situation. Both were found guilty by the Additional Sessions Judge. The appellant then filed a petition with the Bombay High Court to overturn the decision.

It was argued on behalf of the appellants that there were several inconsistencies in the prosecution witnesses’ testimony, proving that they had made up their testimony.

The prosecution’s case is that the accused assaulted the deceased and a witness after being turned down for alcohol service. However, they could not demonstrate this because the businesses where the victims worked did not provide alcohol. As a result, the prosecution failed to establish the murder’s motive.


The high court first examined the evidence against the appellant, who is accused No. 2, after taking into account the opposing facts. The prosecution’s case, the court observed, lacked a crucial link connecting the period in which Accused No. 2 had been with Accused No. 1 and the period in which he was actually apprehended. On July 5, 2013, early in the morning, he was detained. On the evening of the following day, the murder weapon was recovered from his home. Therefore, it was unclear exactly where Accused No. 2 was during this time.

As the court moved on to the subsequent piece of evidence against Accused No. 2, it was stated that “B-Group “‘s” blood-stained clothing had been found. The court agreed with the appellants’ contention and noted that neither the blood groups of the two accused nor one of the prosecution’s witnesses had been established. The court ruled that neither of the defendants can be blamed for the circumstance. Aside from this, the court added that the conviction of Accused No. 2 cannot be supported solely by the co-confession.

The court said that the extrajudicial confession was further supported by the fact that the first accused had personally escorted the witnesses to the shed where the deceased was held.

But after that, the court changed the conviction of Accused No. 1 from Sections 302 and 324 read with Section 34 of the IPC to Sections 304, Part I (Culpable Homicide Not Amounting To Murder) and Section 324 of the IPC. The court concluded the ruling by stating that under to Section 428 of the Code of Criminal Procedure, the accused number one is also entitled to get set off for the time spent as an under-trial prisoner.

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