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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1575 OF 2009

ANUJ KUMAR GUPTA @ SETHI GUPTA …APPELLANT

VERSUS

STATE OF BIHAR …RESPONDENT

J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

1. This  appeal  is  directed against  the judgment of  the High  

Court  of  Patna  at  Bihar  dated  02.11.2007,  passed  in  

Criminal  Appeal  No.690  of  2005.   The  said  appeal  was  

disposed of along with Criminal Appeal No.606/2005, as well  

as Death Reference No.8 of 2005.   

2. To trace the brief facts, the deceased Chhotu Kumar Das @  

Abhinav Das (hereinafter referred to as ‘Chhotu’) son of the  

informant  Gopal  Prasad  Das  (PW-6),  left  his  house  on  

21.04.2002 at  about  8.15  p.m.,  for  visiting  a  local  Mela,  

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which was held every year in the village on the eve of Ram  

Navami.   Thereafter,  he could  not  be traced inspite of  a  

search by his parents and, therefore, a written report was  

submitted by PW-6 at the police station on 22.04.2002 at  

10.30 a.m. briefly narrating the circumstances in which the  

deceased  could  not  be  traced.   No  suspicion  was  raised  

against any person for the disappearance of the deceased.   

3. Based on the written report, the police registered the FIR in  

P.S. Case No.39/2002 and proceeded with the investigation.  

The  investigation  was  carried  out  by  PW-9,  the  Sub-

Inspector of Police.  In the course of the investigation, he  

came  across  some  suspicious  materials  against  the  

appellant  by  some  of  the  witnesses.  PW-9,  therefore,  

interrogated  the  appellant  on  22.04.2002,  whereafter  he  

was arrested. The appellant made a confessional statement  

before  the  police  on  23.04.2002  and  based  on  the  

admissible portion of the said confessional statement, the  

dead  body  of  the  deceased  was  recovered  from  a  river  

known  as  Maldiha  Dhar.  The  co-accused  Arun  Mandal  @  

Arun  Kumar  Mandal  was  also  arrested,  while  another  

accused Sudhir Kumar Mandal could not be apprehended on  

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that  day.   The  inquest  of  the  body  was  prepared  on  

24.4.2002 at 5.00 p.m. and the postmortem was conducted  

by PW-10.   It  was based on the above investigation,  the  

prosecution proceeded against the appellant along with the  

other accused, namely, Girendra Gupta, Arun Mandal and  

Sudhir Mandal for offences under Sections 364(A), 302, 201  

and 120-B IPC.   

4. The appellant and the co accused pleaded innocence and  

the trial Court proceeded with the case.  The prosecution  

examined PWs-1 to 10 on their side.  In the 313 questioning,  

the appellant and the other accused made a total denial.  

The  trial  Court  based  on  the  evidence  placed  before  it  

reached  the  conclusion  that  the  appellant  and  the  co-

accused  Arun  Mandal,  were  guilty  of  the  offences  falling  

under  Sections  364(A),  302,  201  and  120-B,  IPC  and  

imposed death penalty on them and in the light of the said  

sentence  held  that  no  separate  sentence  was  passed  

against them.  The other accused, namely, Girendra Gupta  

and  Sudhir  Mandal,  were  acquitted  of  all  the  offences  

charged against them.   

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5. By  virtue  of  the  death  penalty  imposed,  the  Death  

Reference No.8 of 2005 came to be dealt with by the High  

Court  along  with  the  appeals  preferred  by  the  appellant  

being Criminal  Appeal  No.690/2005 and the other  appeal  

preferred by the co-accused Arun Mandal in Criminal Appeal  

No.606/2005.  The High Court by the judgment impugned,  

while  upholding  the  conviction  imposed  on  the  appellant  

held that no offence was made out as against Arun Mandal  

and  he  was  acquitted  of  all  the  charges.   As  far  as  the  

appellant was concerned, while affirming the conviction, the  

High Court commuted the death sentence to imprisonment  

for life for the offence under Section 302 IPC and held that  

there was no sufficient evidence to hold him guilty of the  

charge  under  Section  364  and  120-B  IPC.  He  was  found  

guilty of charges under Sections 302 and 201 IPC.   

6. We heard Ms. Rakhi Ray, Amicus Curiae for the appellant  

and  Mr.  Sanat  Tokas,  learned  counsel  representing  Mr.  

Gopal Singh, learned counsel for the State.  Learned counsel  

for the appellant in her submissions was mainly contending  

that  this  case  being  one  purely  based  on  circumstantial  

evidence,  the reliance placed upon by the trial  Court,  as  

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well the High Court on the confessional statement  of  the  

appellant  made  to   the   investigating officer PW-9 cannot  

stand and, therefore, the conviction and sentence imposed  

on  the  appellant  is  liable  to  be  set  aside.   The  learned  

counsel was not able to address any other submission, while  

attacking the judgment impugned in this appeal.

7. Learned counsel for the State would contend that the trial  

Court, as well as the High Court have gathered the chain of  

circumstances, which led to the killing of the deceased by  

the  appellant  and  since  the  chain  of  circumstances  was  

complete  in  every  respect,  the  conviction  and  sentence  

imposed  on  the  appellant  does  not  call  for  interference.  

Learned counsel for the State also contended that the trial  

Court, as well as the High Court have only placed reliance  

on the admissible portion of the confessional statement of  

the appellant made to PW-9, the investigating officer.

8. Having  considered  the  respective  submissions  of  the  

learned counsel  and having perused the judgment of the  

Division  Bench,  as  well  as  the  trial  Court  and  all  other  

material  papers,  we  find  that  the  only  contention  of  the  

learned counsel for the appellant was that merely based on  

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the confessional  statement  of  the appellant  to  PW-9,  the  

Investigating  officer,  the  conviction  came  to  be  imposed  

and the same was not in consonance with law.

9. When we examine the case on hand, we find that there was  

no eye witness to the occurrence.  The whole case is based  

on  the  circumstantial  evidence,  therefore,  our  only  

endeavour is to find out whether the chain of circumstance  

noted  by  the  trial  Court,  as  well  as  the  High  Court  was  

complete  without  any  disruption  in  order  to  confirm  the  

conviction and sentence imposed on the appellant.

10. As  far  as  the  admissibility  of  the  confessional  statement  

made by the appellant to the investigating officer PW-9 was  

concerned, the law on this aspect is quite clear, which we  

wish to explain at the very outset and before examining the  

chain  of  circumstances  noted  and  explained  in  the  

judgment impugned.

11. As  far  as  the  admissibility  of  the  confessional  statement  

made by an accused to the police officer is concerned, the  

law  is  well  settled,  which  can  be  succinctly  stated  by  

making  reference  to  an  earlier  decision  of  this  Court  in  

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Bheru Singh v. State of Rajasthan - 1994 (2) SCC 467.  

In  the  said  decision,  paras  16  and  19  can  be  usefully  

referred, which read as under:

“16. A confession or an admission is evidence against  the  maker  of  it  so  long  as  its  admissibility  is  not  excluded  by  some  provision  of  law.  Provisions  of  Sections 24 to 30 of the Evidence Act and of Section  164  of  the  Code  of  Criminal  Procedure  deal  with  confessions. By virtue of the provisions of Section 25  of  the Evidence  Act,  a  confession made to  a  police  officer  under  no  circumstance  is  admissible  in  evidence against an accused. The section deals with  confessions made not only when the accused was free  and not in police custody but also with the one made  by such a person before any investigation had begun.  The expression “accused of any offence” in Section 25  would  cover  the  case of  an accused who has  since  been put on trial, whether or not at the time when he  made the confessional statement, he was under arrest  or  in  custody  as  an  accused  in  that  case  or  not.  Inadmissibility of a confessional statement made to a  police officer under Section 25 of the Evidence Act is  based on the ground of public policy. Section 25 of the  Evidence Act not only bars proof of admission of an  offence by an accused to a police officer or made by  him while in the custody of a police officer but also the  admission contained in the confessional statement of  all incriminating facts relating to the commission of an  offence.  Section  26  of  the  Evidence  Act  deals  with  partial ban to the admissibility of confessions made to  a person other than a police officer  but we are not  concerned  with  it  in  this  case.  Section  27  of  the  Evidence  Act  is  in  the  nature  of  a  proviso  or  an  exception,  which  partially  lifts  the  ban  imposed  by  Sections 25 and 26 of  the Evidence Act  and makes  admissible  so  much  of  such  information,  whether  it  amounts to a confession or not, as relates to the fact  thereby discovered, when made by a person accused  of an offence while in police custody. Under Section  

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164  CrPC  a  statement  or  confession  made  in  the  course  of  an  investigation,  may  be  recorded  by  a  Magistrate, subject to the safeguards imposed by the  section itself and can be relied upon at the trial.

19. From a  careful  perusal  of  this  first  information  report  we  find  that  it  discloses  the  motive  for  the  murder  and  the  manner  in  which  the  appellant  committed the six  murders.  The  appellant  produced  the bloodstained sword with which according to him  he  committed  the  murders.  In  our  opinion  the  first  information report Ex. P-42, however is not a wholly  confessional  statement,  but  only  that  part  of  it  is  admissible in evidence which does not amount to a  confession and is not hit by the provisions of Section  25  of  the  Evidence  Act.  The  relationship  of  the  appellant  with  the  deceased;  the  motive  for  commission  of  the  crime  and  the  presence  of  his  sister-in-law PW 11 do not amount to the confession of  committing  any  crime.  Those  statements  are  non- confessional  in  nature  and can be used against  the  appellant as evidence under Section 8 of the Evidence  Act.  The production and seizure of the sword by the  appellant at the police station which was bloodstained,  is also saved by the provisions of the Evidence Act.  However, the statement that the sword had been used  to  commit  the  murders  as  well  as  the  manner  of  committing  the  crime  is  clearly  inadmissible  in  evidence. Thus,  to  the  limited  extent  as  we  have  noticed above and save to that extent only the other  portion of the first information report Ex. P-42 must be  excluded from evidence as the rest of the statement  amounts to confession of committing the crime and is  not admissible in evidence.”

                                                         (Emphasis added)

12. In this context we can also refer to a recent decision of this  

Court in  Sandeep  v. State of Uttar Pradesh  - 2012 (6)  

SCC  107.   In  para  52,  the  legal  position  as  regards  the  

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admissibility of some part of the statement of the accused,  

which can be treated as admission has been explained as  

under in para 52:

52. We find  force  in  the  submission  of  the  learned  Senior Counsel for the State.  It is quite common that  based on admissible portion of the statement of the  accused whenever and wherever recoveries are made,  the same are admissible in evidence and it is for the  accused  in  those  situations  to  explain  to  the  satisfaction of the court as to the nature of recoveries  and  as  to  how  they  came  into  possession  or  for  planting the same at the places from where they were  recovered. Similarly, this part of the statement which  does not in any way implicate the accused but is mere  statement  of  facts  would  only  amount  to  mere  admissions which can be relied upon for ascertaining  the other facts which are intrinsically connected with  the  occurrence,  while  at  the  same  time,  the  same  would not in any way result in implicating the accused  in the offence directly.

       (Emphasis added)

13. Since  the  confessional  statement  was  made  before  the  

investigating  officer  (PW-9),  it  is  necessary  to  note  what  

exactly  was  the  confession  stated  to  have  been  made,  

which  enabled  the  IO  to  make  some  progress  in  his  

investigation.  According  to  PW-9,  he  recorded  the  

confession of  the appellant at  11.30 p.m. on 23.04.2002.  

He also stated that based on the information furnished by  

the appellant, he also arrested Arun Mandal who also made  

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a confession, which was identical to the one made by the  

appellant.   Though  PW-9  would  refer  to  very  many  

statements alleged to have been admitted by the appellant  

and co-accused Arun Mandal, in our considered opinion, the  

only  part  of  the  admission,  which  can  be  noted  and  

accepted  as  admissible  in  the  evidence  related  to  the  

identification  of  the  place  where  the  dead  body  of  the  

deceased Chhotu was found, based on the admission of the  

appellant and the co-accused.   

14. Insofar as the said part of the evidence of PW-9 read along  

with the admission found in Exhibits-4 and 5 is concerned, it  

has come out in evidence that the appellant was taken to  

the place called Maldiha Dhar (a river stream) along with  

PW-4, the paternal uncle of the deceased where the dead  

body of the deceased Chhotu was recovered from the water  

of  Maldiha  Dhar.   PW-9  stated  that  since  Maldiha  Dhar  

(stream) fell within the jurisdiction of Barhara P.S., of district  

Purnea,  he could not immediately lift  the body from that  

place, that he left the dead body at that very place under  

the protection of armed forces and, therefore, after getting  

necessary official clearance, the body was handed over to  

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the police station of his jurisdiction and the same was sent  

for  carrying  out  necessary  post  mortem.  PW-4  in  his  

evidence also corroborated the above said version of PW-9  

by stating that he proceeded along with PW-9, as guided by  

the appellant and co accused Arun Mandal and that they  

reached the place Maldiha Dhar, where the dead body was  

found as pointed out by the appellant and co accused.  He  

also stated that he identified the dead body as that of his  

nephew, Chhotu the deceased.  He further stated that the  

eyes  of  the  dead  body  were  open,  the  tongue  was  

protruding out and that there were marks of throttling in the  

neck of the deceased.   

15. From the above evidence of PW-9, supported by the version  

of  PW-4, it  has come to light  that  at  the instance of  the  

appellant and the co-accused Arun Mandal, the body of the  

deceased Chhotu was recovered from Maldiha Dhar (river  

stream) and that it was noted at that time the eyes of the  

dead body and the tongue were protruding out.  There were  

also signs of marks on the neck of the deceased Chhotu.  

The said part of the confessional statement as recorded by  

PW-9,  cannot  be  said  to  straightaway  implicate  the  

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appellant and the co-accused to the killing of the deceased.  

Leaving  aside  the  rest  of  the  part  of  the  admission,  the  

identity of the place at the instance of the appellant and the  

co-accused, as to where the dead body of the deceased was  

lying,  which  was exclusively  within  the knowledge of  the  

appellant,  was  certainly  admissible  by  virtue  of  the  

application of Section 8, read along with Section 27 of the  

Evidence Act.   

16. In  such  circumstances,  in  the  absence  of  any  convincing  

explanation offered on behalf of the appellant accused as to  

under what circumstances he was able to lead the Police  

party to the place where the dead body of the deceased  

was found, it will have to be held that such recovery of the  

dead body, which is  a very clinching circumstance in the  

case of this nature, would act deadly against the appellant  

considered  along  with  rest  of  the  circumstances  

demonstrated by the prosecution to rope in the appellant in  

the alleged crime of the killing of the deceased. Therefore,  

once we find that there was definite admission on behalf of  

the appellant by which the prosecuting agency was able to  

recover the body of the deceased from a place, which was  

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within  the  special  knowledge  of  the  appellant,  the  only  

other aspect to be examined is whether the appellant came  

forward  with  any  convincing  explanation  to  get  over  the  

said  admission.   Unfortunately  though  the  above  

incriminating circumstance was put to the appellant in the  

313 questioning where he had an opportunity  to explain,  

except  a  mere  denial  there  was  no  other  convincing  

explanation offered by him.

17. Thus, we reach a conclusion that the said circumstance of  

recovery of the body of the deceased from the place called  

Maldiha  Dhar  (a  river  stream)  at  the  instance  of  the  

appellant as spoken to by PW-9, supported by the evidence  

of  PW4,  we  have  to  only  see  whether  rest  of  the  

circumstances considered by the trial Court, as well as the  

High  Court,  were  sufficient  to  confirm  the  ultimate  

conviction of the appellant and the sentence imposed on  

him. On this aspect when we perused the judgment of the  

trial  Court,  as  well  as  the  High  Court,  the  following  

circumstances have been found to be established:

(i) PW-1 referred to the factum of the appellant attempting  

to ride a motorcycle in a narrow lane opposite to the shop of  

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PW-1 and that when PW-1 advised him that vehicle cannot  

pass through the said lane the appellant parked the said  

motorcycle  near  the  shop  of  PW-1  and  went  away  to  

Thakurbari on foot;

(ii) PW-1 was asked by the father of the accused who was  

also arrayed as A-3, namely, Girendra Gupta who requested  

PW-1 not to divulge the said fact about the parking of the  

motorcycle to anyone;

(iii) According to PW-4, the uncle of the deceased, while he  

along with others were searching for the deceased he was  

informed by an old lady that she saw two persons going in a  

motorcycle with a boy sitting in between them though she  

could not identify any of them due to darkness.

(iv) The deceased who went to attend the Mela at about 8  

or 9 p.m. on 21.04.2002 did not return back as spoken to by  

PW-7.

(v) The body of the deceased was recovered from Maldiha  

Dhar  (a  river  stream)  based  on  the  identification  of  the  

appellant.

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(vi)  When the body was recovered it  was noted that the  

eyeball was bulging out and the tongue was protruding out  

apart from bruises noted on both sides of the neck.

(vii)  The  postmortem  report  of  PW-10  confirms  that  the  

death of the deceased was due to asphyxia by strangulating  

the neck of the deceased. The said postmortem report also  

made it clear that eyeball was bulging and the tongue was  

protruding out and the abrasions on both sides of the neck  

were also noted.

(viii) The admissible version of the confessional statement  

of the appellant also revealed that his father A-3 asked PW-

1 not to disclose the fact about the parking of a motorcycle  

of the appellant near his shop.

(ix)  The  recovery  of  the  motorcycle  bearing  registration  

No.BR-39 0148 used by the appellant at the instance of the  

appellant from his house which was marked as Ext.8.

(x) PW-10 the postmortem doctor in the course of the cross-

examination confirmed that he could mention the cause of  

death with certainty and that in any case it was not a case  

of drowning.

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18. The  above  circumstances  having  been  found  to  be  fully  

established, the conclusion of the trial Court, as well that of  

the High Court in holding that the chain of circumstances  

was complete in every respect in order to lead to the only  

conclusion that the appellant was squarely responsible for  

the killing of the deceased, was well justified. Though the  

learned counsel  for  the appellant  attempted to  point  out  

some discrepancy in the matter of  arrest of  Arun Mandal  

and recording of the alleged confessional statement of the  

appellant  under  Ext.4,  pursuant  to  which  the  body  was  

traced out, we are of the view that the said discrepancy was  

a  very  trivial  one and on that  score  we do not  find  any  

scope to dislodge the findings of the Courts below. We are,  

therefore,  convinced  that  the  ultimate  conviction  of  the  

appellant under Section 302 of IPC and the sentence of life  

imprisonment  imposed  on  him  by  commuting  the  death  

penalty imposed by the trial Court,  was perfectly justified  

and we do not find any good grounds to interfere with the  

same. The appeal fails and the same is dismissed.

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………….……….…………………………..J.                          [A.K. Patnaik]

   ...……….…….………………………………J.

               [Fakkir  Mohamed Ibrahim  Kalifulla]

New Delhi;  July 24, 2013.

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