ANUJ KUMAR GUPTA @ SETHI GUPTA Vs STATE OF BIHAR
Bench: A.K. PATNAIK,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-001575-001575 / 2009
Diary number: 4403 / 2008
Advocates: RAKHI RAY Vs
GOPAL SINGH
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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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