Crl.A.Nos.1416-17/17 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1416-1417 OF 2017

Ishwari Lal Yadav …..Appellant

Versus

State of Chhattisgarh …..Respondent

W I T H

CRIMINAL APPEAL NOS.300-301 OF 2018

Nihaluddin @ Khanbaba & Ors. …..Appellants

Versus

State of Chhattisgarh …..Respondent

CRIMINAL APPEAL NOS.1418-1419 OF 2017

Kiran Bai …..Appellant

Versus

State of Chhattisgarh …..Respondent

AND

1

Crl.A.Nos.1416-17/17 etc.

CRIMINAL APPEAL NOS.298-299 OF 2018

Rajendra Kumar & Anr. …..Appellants

Versus

State of Chhattisgarh …..Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. All  these appeals  are  directed  against  the  common judgment  of  the

High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in Criminal

Reference No.1 of 2014 and Criminal Appeal No.511 of 2014, as such they

are disposed of by this common judgment and order.  

2. All the appellants were charged for offence under Sections 364/34 read

with 120B; 302/34 read with 120B and 201, Indian Penal Code (IPC).  Vide

judgment  dated  27.03.2014  passed  in  Sessions  Trial  No.61  of  2011,  the

learned Sessions Judge, Durg, has convicted and sentenced the appellants.

For  the  offence  under  Sections  364/34  read  with  120B,  IPC  they  were

convicted and sentenced for imprisonment for life and fine of Rs.5000/- each,

in default of payment of fine, to undergo further rigorous imprisonment for four

months.  For the offence under Sections 302/34 read with 120B, IPC death

2

Crl.A.Nos.1416-17/17 etc.

penalty was imposed with a fine of Rs.5000/- each, in default of which, they

were sentenced to  undergo further rigorous imprisonment  for  four  months.

For the offence under Section 201, IPC, rigorous imprisonment for five years

and a fine of Rs.2000/- each was imposed, in default of payment of fine, they

were sentenced to undergo further rigorous imprisonment for two months.  

3. In view of death penalty imposed on the appellants, a reference was

made to the High Court, as required under Section 366 of Cr.P.C. and further

appellants-accused have filed Criminal Appeal No.511 of 2014 before the High

Court.   By  a  common  judgment  dated  01.12.2016,  the  High  Court  has

confirmed  death  sentence  on  the  two  main  accused,  namely,  Ishwari  Lal

Yadav and Smt. Kiran Bai and modified the sentence of other appellants to

one of imprisonment for life without any entitlement of remission or parole.

4. The deceased, a small two year old boy, by name, Chirag Rajput was

the son of Poshan Singh (PW-3) and Savitri Bai (PW-5).  PW-5 works as a

domestic help whereas Poshan Singh (PW-3) was working in Bhilai.   Smt.

Vandana Rajput (PW-21) is the sister of Savitri Bai (PW-5) and was at home

along with the minor child – Chirag – on fateful day, i.e., 23.11.2010.  When

Vandana Rajput (PW-21) and deceased boy Chirag Rajput were at home on

23.11.2010, Chirag went outside the house to play while she was inside.  After

sometime when she went  out,  she  could  not  find  Chirag  and Chirag  was

missing.  She immediately rang her sister and brother-in-law, i.e., PW-5 and 3

respectively who came back to their house.

3

Crl.A.Nos.1416-17/17 etc.

5. It is the case of the prosecution that the two main accused, Smt. Kiran

Bai and her husband Ishwari Lal Yadav believed in tantrism.  Smt. Kiran Bai

wanted to attain siddhi.  She was also proclaimed as ‘gurumata’.  To propitiate

the God, she asked her husband and disciples who are the other co-accused

along with them, to get a small child for human sacrifice.  The main accused

were neighbours to PW-3 and 5.  It is alleged that for the purpose of sacrifice

to God, the child Chirag was kidnapped and murdered in a gruesome manner,

inside the house of main accused Kiran Bai and Ishwari Lal Yadav.  Thereafter

he was buried in the precincts of the house.  To avoid sound of cries, music

system was played loudly.

6. After the information from Vandana Rajput (PW-21) to her sister Savitri

Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all started searching for

Chirag.  When the parents of the child, family members and other people of

the neighbourhood were searching for missing boy, they became suspicious

from  the  loud  music,  emanating  from  the  house  of  two  main  accused.

Thereupon, some people have entered the house of Kiran Bai and Ishwari Lal

Yadav and found five mounds of freshly dug earth.  It is alleged that there was

also a leaf bowl (Dona), one small bowl (Katori), one small round metal pot

(Lota), a trident (Trishul), idols and pictures of Gods and other items of  puja

were lying there.   There was blood on some of these items.  It is alleged that

when the crowd asked the accused what had happened, Smt. Kiran Bai and

Ishwari Lal Yadav confessed that they had sacrificed Chirag with the help of

4

Crl.A.Nos.1416-17/17 etc.

other co-accused and begged for mercy.  Immediately thereafter, the crowd

started  digging  the  freshly  dug  earth  and  body  of  Chirag  was  taken  out.

Thereafter police came to the site and report was lodged.  The body of Chirag

was sent for post-mortem.  All the accused were questioned on which they

made  some  disclosure  statements.   On  the  basis  of  such  disclosure

statements,  recoveries  of  certain  incriminating  articles  were  made.   After

completing the investigation, the police filed final  report  under Section 173

Cr.P.C. against all  the appellants and one other accused by name Krishna

Tambi.   However,  as he was absconding,  his  trial  was separated.   All  the

accused have denied  the  guilt  and  claimed trial.   They  were  tried  for  the

offences as referred above before the learned Sessions Judge, Durg and they

were  convicted  and  sentenced  vide  judgment  dated  27.03.2014.   All  the

appellants were imposed with the penalty of death.  Reference was made to

the High Court under Section 366 of the Cr.P.C.

7. Appellants have also challenged their conviction and sentence imposed,

by way of criminal appeal.  Both were considered by a common judgment.

While confirming the conviction under Section 302/34 read with Section 120B,

IPC and sentence of death penalty on the main accused, namely, Ishwari Lal

Yadav and Kiran Bai, the High Court has modified the punishment of other

accused to that of imprisonment for life.

8. We have heard Sri Siddhartha Dave, learned senior counsel appearing

for the appellants in Crl.  Appeal Nos.1416-1417 of 2017 and 1418-1419 of

5

Crl.A.Nos.1416-17/17 etc.

2017; Sri Birendra Kumar Mishra, learned counsel for the appellants in Crl.

Appeal  Nos.300-301  of  2018;  Sri  Rajeev  Kumar  Bansal,  learned  counsel

appearing  for  the  appellants  in  Crl.  Appeal  Nos.298-299  of  2018  and  Sri

Sumeer  Sodhi,  learned  counsel  appearing  for  the  respondent-State  of

Chhattisgarh.  

9. In these appeals, mainly it is pleaded by the learned senior counsel Sri

Siddhartha  Dave  appearing  for  the  appellants  that  except  the  alleged

confessional  statement,  there  is  no  other  evidence  to  prove  the  guilt  of

accused for kidnapping and murder of deceased boy – Chirag.  It is further

submitted that all the findings recorded by the trial court, as confirmed by the

High Court, for conviction of the appellants rest upon confessional statement

of the appellants which is barred under Sections 24, 25 and 26 of the Indian

Evidence Act, 1872.  It is submitted that there are material contradictions in

the  depositions  of  witnesses  about  the  arrival  of  police  to  the  place  of

occurrence of the offence and on the alleged extra-judicial confessions, inspite

of  the  same,  courts  below  have  accepted  such  evidence  on  record  and

passed the impugned judgments.   It  is  submitted that,  as  the body of  the

deceased was not found in exclusive possession of the main accused, courts

below have committed an error  in taking assistance of  Section 106 of  the

Indian Evidence Act.  It is submitted that body was discovered only after large

crowd had gathered.   Further, it is submitted that the discovery of skeleton of

other person and also the theory of bad character, that is, appellants were

6

Crl.A.Nos.1416-17/17 etc.

black magic practitioners, is barred under Sections 14, 15 and 54 of the Indian

Evidence Act.  It is further submitted that the prosecution has not proved any

ingredient under Section 120B, IPC to prove conspiracy among the appellants

for committing the alleged offence.   

10. It is the contention of the learned counsel appearing for the appellants

that  there  is  absolutely  no  evidence on  record  to  prove  that  there  was  a

common intention on the part  of  such appellants to commit  the offence of

kidnapping and murder of the deceased child.  So far as the appellants other

than the main accused, it is submitted that the findings of the courts below are

based on  the  alleged confessional  statements  and in  the  absence of  any

corroboration,  the  courts  below have committed  an  error  in  convicting  the

appellants with the aid of Sections 34 and 120B, IPC.  It is also the contention,

of the learned counsel for the appellants that there is no reason or justification

for  imposing the death penalty  on Ishwari  Lal  Yadav and Kiran Bai,  while

modifying the punishment to that of life imprisonment to all other accused.  It

is also submitted that the incident in question cannot be considered as the

“rarest of rare cases” so as to impose the capital punishment.  The learned

counsel appearing for the appellants, in support of his arguments, has relied

on the following cases :  

1. Aghnoo Nagesia v. State of Bihar1

2. Sahadevan & Anr. v. State of Tamil Nadu2

1  1966 (1) SCR 134 = AIR 1966 SC 119 2  (2012) 6 SCC 403

7

Crl.A.Nos.1416-17/17 etc.

3. Shambu Nath Mehra v. The State of Ajmer3

4. Firozuddin Basheeruddin & Ors. v. State of Kerala4

5. Ronny v. State of Maharashtra5

11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing for the

State  of  Chhattisgarh,  has submitted that  the case relates  to  a  gruesome

murder of  small  two year old boy as a human sacrifice and from the oral

evidence  on  record,  the  prosecution  has  proved  the  guilt  of  the  accused

beyond reasonable doubt, as such there are no grounds to interfere with the

impugned judgment.  It is submitted that,    all the appellants were present in

the house of the main accused and the fact that the body of the deceased was

also recovered from the house of the main accused, is proved from the oral

evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13 and 16.  It is further submitted that

the contradictions referred to by the counsel for the appellants are minor and

they may not affect well reasoned findings and conclusions arrived by the trial

court, as confirmed by the High Court.  The learned State Counsel has relied

on  the  judgment  of  this  Court  in  the  case  of  Sushil  Murmu  v.  State  of

Jharkhand6 to substantiate his arguments.

12. Having  heard  the  learned  counsels  we  have  carefully  perused  the

impugned judgments and also the material on record.

13. To prove the guilt of the accused, prosecution has examined PW 1 to

PW 22.  When it was reported by Vandana Rajput (PW-21), who is the sister 3  1956 SCR 199 4  (2001) 7 SCC 596 5  (1998) 3 SCC 625 6  (2004) 2 SCC 338

8

Crl.A.Nos.1416-17/17 etc.

of Savitri Bai (PW-5), Savitri Bai and Poshan Singh (PW-3) came back to their

house.   In the evidence of  Poshan Singh (PW-3) who is  the father of  the

deceased child, he has stated that the main accused Ishwari Lal Yadav and

Smt. Kiran Bai are his neighbours and he knows them.  He also knows all

other accused because they regularly visit but he could not tell their names.

He further stated that during their search for the missing Chirag along with his

wife Smt. Kiran Bai and others, they heard loud music emanating from  the

house of the main accused,  which gave suspicion in the minds of the people

in the locality, therefore, they entered the house of Ishwari Lal and Kiran Bai

and noticed that the ground around the place of worship was wet and a knife

was also lying at that place.  On digging up the wet place, body of Chirag was

found.  The body was in two parts and head had been severed from the neck.

Both the cheeks had been cut.  At the place of worship, pictures of Gods have

been placed.  At the same time, he stated, he has come to know the names of

other accused after occurrence of the incident.  In similar lines is also the oral

evidence of PW-5 who is the mother of the deceased child.  In her deposition

she has stated that she works as a domestic help.  On the day of occurrence,

when Vandana Rajput  (PW-21)  has  informed the  mother  of  the  deceased

child, PW-5 Savitri Bai has come back to the house and it is stated that she

along with her husband and others, were searching for the missing boy, and

on hearing the loud music emanating from the house of Ishwari Lal Yadav they

entered the house.  She has further stated that she knows accused Kiran Bai

9

Crl.A.Nos.1416-17/17 etc.

and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant Sahu and Sukhdev.

She has also stated that all other accused were regularly going to the house

of Ishwari Lal Yadav and Kiran Bai.  She too in clear terms has stated that

when  they  entered  the  house  of  Ishwari  Lal  Yadav  and  Kiran  Bai,  they

admitted  the  guilt  of  committing  murder  of  Chirag  in  the  form  of  human

sacrifice and begged for mercy.  On suspicion from the members of the group,

the place of worship was dug and on digging, the body of Chirag was found.

His head was separated from the body, both the cheeks had deep cuts and

tongue was cut off.   On seeing her child with such condition,  she became

unconscious.  In her deposition she has specifically stated that police had not

come with them inside the house of Ishwari Lal Yadav, they came later.  The

brother of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined.

In his deposition he has stated that he knows all the accused because earlier

he was residing in Ruabandha area where all accused used to reside.  In his

deposition he has stated that on call from his brother Poshan Singh (PW-3)

stating that Chirag was missing, he went to the house of his brother and along

with  him  the  sister-in-law  and  other  persons  of  the  locality  searched  for

Chirag.  Thereafter they went to police station, lodged a report and returned to

their locality and on hearing loud music in the house of the tantriks – Ishwari

Lal Yadav and Smt. Kiran Bai – and on getting suspicion, they went inside the

house  along  with  others.   He  has  also  stated  in  his  deposition  that  on

questioning, Ishwari Lal Yadav confessed that he has asked Hemant Sahu to

10

Crl.A.Nos.1416-17/17 etc.

kidnap Chirag for the purpose of human sacrifice.  Thereafter puja was done

at the spot and Chirag was sacrificed and buried there.  He has further stated

that at the time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran

Bai, their three children and all other accused were present.  Sri Ram Avtar

Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai and

Savitri Bai and Poshan Singh, he was examined as PW-6.  In his deposition,

he has stated that the accused Ishwari Lal Yadav and Smt. Kiran Bai were

known tantriks and other accused were their followers.  On hearing the loud

music, he went to the house of the main accused, along with others and on

digging the puja area the body of Chirag was found which was in two parts –

severed at the neck and both cheeks were cut.  Sri Parasnath Bhuarya who

was examined as PW-9 has stated that on the day of occurrence having come

to know that Chirag was missing, they all were searching for Chirag and on

hearing the loud music coming from the house of accused Ishwari Lal Yadav

and Kiran  Bai,  they  entered  their  house  and  he  could  recognise  accused

Ishwari Lal Yadav and since it was dark he could not recognise other accused.

He too stated that when they questioned the accused, the accused Ishwari Lal

Yadav and Kiran Bai confessed that they had sacrificed Chirag and begged for

mercy.  Corporator of the area – Rajendra Rajak was examined as PW-10.  In

his  deposition,  he  has  stated  that  Chirag’s  grandmother  has  come  to  his

house and informed about the missing of her grandson Chirag.  Thereafter he

has given a suggestion that an announcement be got made from loudspeaker

11

Crl.A.Nos.1416-17/17 etc.

of the mosque.  Thereafter the announcement was made.  All the people of

the locality were searching for Chirag.  He too stated that the house of Poshan

Singh  (PW-3)  adjoins  the  house  of  accused  Ishwari  Lal  Yadav.   In  his

deposition he has also stated that when the whereabouts of the child were not

known even after the announcement was made and the main accused were

continuously playing music, he along with other persons went inside the house

of accused Ishwari Lal Yadav and Kiran Bai.  In his deposition he has also

stated that the main accused have stated that Chirag had been sacrificed in

pursuance of their tantrik activities and had been buried inside the house.  At

the same time he stated, he cannot identify the other accused but stated that

some people were present there.  The evidence of PW-12 – Dilip Thakur is

also on similar lines stating that after hearing the announcement about the

missing of  Chirag he started searching for  Chirag along with others.   The

evidence of PW-13 – Arvind Singh is also to the same effect.  One Sri Shiv

Kumar Rajak  was examined as PW-16.  In his deposition he has stated that

after hearing the announcement made about the missing of Chirag, son of

Poshan Singh, he joined others.  After hearing loud music from the house of

Ishwari Lal Yadav and Kiran Bai he also entered along with others.  He has

further stated that after digging the puja area, body of Chirag was found which

was in two parts.  Some ash has been smeared on the head of Chirag and

both the cheeks had been cut and tongue was missing.  Only thereafter police

was informed.  He further stated that when accused Ishwari Lal Yadav was

12

Crl.A.Nos.1416-17/17 etc.

questioned, he confessed that he has asked Hemant Sahu to kidnap the child

and thereafter they had worshipped the child, put tilak, touched the feet then

sacrificed the child.   He has also stated that  on questioning,  the accused

confessed that about six months earlier they had sacrificed one girl child also.  

14. From the oral evidence on record of all the persons who have joined the

parents of the deceased child, i.e., Poshan Singh (PW-3) and Savitri Bai (PW-

5), it is clear that  they have stated in one voice, that when they entered the

house of the main accused, they have found some area which was wet and

some  puja articles were there.   When they have noticed fresh mounds of

earth, they have removed the same and found the body of the deceased child

in two parts.  All the witnesses have consistently stated that the body was in

two parts, its cheeks were cut and tongue was missing.

15. The first information with the police was recorded by PW-19 – Domar

Singh Thakur.  The constable who took the application for post mortem was

examined as PW-1.  The doctor who conducted the post mortem on the body

of Chirag was Dr. Lal Mohammad was examined as PW-14.  One Patiram

Bareth was examined as PW-11.  He was the Patwari of the area and in his

statement he has clearly stated that the house from which the body of the

child was recovered belongs to Ishwari Lal Yadav.  PW-18 is the Assistant Sub

Inspector who took accused Ishwari Lal Yadav into custody and recorded his

statement  under  Ex.P21.   The  recovery  of  incriminating  articles  was

disbelieved by the High Court.  From the evidence on record it is also clear

13

Crl.A.Nos.1416-17/17 etc.

that  several  independent  witnesses  who  were  examined  on  behalf  of  the

prosecution were in the group of search along with parents of the deceased

and they have entered the house of the main accused on hearing the loud

music.  It is also equally clear from the evidence that police have come to the

scene of occurrence only afterwards, when PW-10 – Corporator has informed

the police.

16. From the above evidence on record, it is clear that the parents of the

deceased boy along with others were searching for the boy, on hearing the

loud  music  from the  house  of  Ishwari  Lal  Yadav  and  Kiran  Bai,  they  got

suspicious  and  entered  the  house.   It  is  consistently,  deposed  by  the

independent witnesses mentioned above, that when they entered the house of

the  main  accused,  namely,  Ishwari  Lal  Yadav  and  Kiran  Bai,  they  have

confessed that  they have committed murder of  the deceased child for  the

purpose  of  sacrifice.   There  is  nothing  on  record  to  show  that  such

confessions  are  caused  by  inducement,  threat  or  promise.   When  such

confessions are corroborated by other evidence on record, the trial court as

well as the High Court, rightly relied on such confessions.  From the evidence,

it  is proved that the place where the body of  deceased Chirag was traced

belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation

from their side, there is no error committed by the trial court in accepting such

evidence on record.  It is true that the extra judicial confession is a weak piece

14

Crl.A.Nos.1416-17/17 etc.

of  evidence,  but  at  the  same  time  if  the  same  is  corroborated  by  other

evidence on record, same can be accepted.

17. To  prove  the  charge  of  kidnapping  and  conspiracy,  there  is  no

acceptable evidence on record. In absence of any corroborative evidence for

kidnapping of the deceased boy by Hemant Sahu and another, the evidence

on record cannot be accepted.  Even to prove the common intention to attract

the provision under Section 34, IPC, it requires a pre-arranged plan and prior

concert.   Therefore,  there  must  be  prior  meeting  of  minds.   The common

intention must exist prior to the commission of the act in a point of time.  The

burden lies on the prosecution to prove that participation of more than one

person for commission of  criminal act  was done in furtherance of common

intention.  If we closely analyse the evidence on record the common intention

stands  proved  between  Ishwari  Lal  Yadav  and  Kiran  Bai  who  are  main

accused but  at  the same time there is  no acceptable evidence against  all

others  to  prove  their  guilt  that  they  have  committed  the  offence  with  the

common intention.  Prosecution has failed to prove the common intention of all

other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran

Bai,  either  to  kidnap  or  to  murder  the  deceased  child  on  the  day  of

occurrence.  It is borne out from the evidence on record that all other accused

were disciples  of  self-claimed  gurumata,  namely,  Kiran Bai  and they were

regularly visiting the house of the main accused offering fruits and flowers.

There is no consistency of the persons named by the witnesses in the house

15

Crl.A.Nos.1416-17/17 etc.

of Ishwari Lal Yadav and Kiran Bai, when they all entered their house.  Even

PW-5 Savitri Bai, in her deposition has clearly stated that all other accused

used to come regularly to the house of Ishwari Lal Yadav and Kiran Bai, along

with the fruits and flowers.  The father of the child PW-3 Poshan Singh, in

cross-examination has stated that he knew the names of Ishwari Lal Yadav

and  Kiran  Bai  earlier  and  he  has  come  to  know  the  names  of  all  other

accused, after the occurrence of the incident.  PW-6 Ram Avtar Gada, also

stated in her deposition that the accused Ishwari  Lal  Yadav and Kiran Bai

were known  tantriks and other accused were their followers.  Further PW-9

Parasnath Bhuarya, in his deposition has stated that he entered the house

along with the others and he could only recognise Ishwari Lal Yadav and as it

was dark he could not recognise all  others.   In absence of  any consistent

definite evidence regarding presence of all other accused, along with the main

accused,  namely,  Ishwari  Lal  Yadav  and  Kiran  Bai  and  further  when  the

prosecution has failed to prove either the common intention or the conspiracy

on their part along with the main accused, it is difficult to accept the case of

the prosecution as such they are entitled for the benefit of doubt.  In view of

the  evidence  on  record  the  prosecution  has  proved  the  guilt  of  the  main

accused,  namely,  Ishwari  Lal  Yadav  and  Kiran  Bai  for  the  offence  under

Section 302 read with Section 34 of the IPC.  The common intention is to be

restricted only to the main accused Ishwari Lal Yadav and Kiran Bai but same

cannot be applied to others.  

16

Crl.A.Nos.1416-17/17 etc.

18. Learned counsel  for  the appellants  has relied on a judgment  of  this

Court in the case of Aghnoo Nagesia1 to buttress his contention that the courts

below have committed error in recording a finding of guilt of the appellants

based on confession.  But same is a case where the appellant therein was

charged under Section 302 IPC for murdering his aunt and others and there

were no eye witnesses to the murder.   The principal  evidence against  the

appellant was First Information Report which contains a full confession of guilt

by the appellant himself.  The said confession was made to a police officer

and  the  same  is  not  provable  having  regard  to  Section  25  of  the  Indian

Evidence Act.  Further reliance is also placed on a judgment of this Court in

the case of  Sahadevan2.  In the aforesaid judgment of two-Judge Bench of

this  Court  it  is  held  that  the  extra  judicial  confession  is  a  weak  piece  of

evidence  and  court  must  ensure  that  same  inspires  confidence  and  is

corroborated by other prosecution evidence.  If the totality of oral evidence on

record  is  considered  in  the  case  on  hand,  it  is  consistent  and  inspires

confidence  of  the  case  of  the  prosecution  to  prove  the  guilt  of  the  main

accused.  We are of the view that the aforesaid judgments would not render

any assistance to support the case of the appellants.

19. Learned counsel also relied on the judgment of this Court in the case of

Shambu Nath Mehra3.  In the aforesaid judgment this Court has held that in a

criminal  case  burden  of  proof  is  on  the  prosecution  and  Section  106  is

certainly not intended to relieve it of that duty.  It is held that on the contrary, it

17

Crl.A.Nos.1416-17/17 etc.

is designed to meet certain exceptional cases in which it would be impossible,

or at any rate disproportionately difficult, for the prosecution to establish facts

which  are “especially”  within  the knowledge of  the  accused and which he

could prove without  difficulty  or  inconvenience.   In this  case on hand it  is

proved by cogent evidence that the body of Chirag was found in the house of

Ishwari Lal Yadav.  By applying the provision under Section 106 of the Indian

Evidence Act definitely it is the burden of the accused to explain the fact within

the knowledge of them how the body of Chirag came to be buried in their

house.   The judgment  relied on in the case of  Shambu Nath Mehra3 also

would  not  be  helpful  for  the  appellants.   In  the  case  of  Firozuddin

Basheeruddin4 this  Court  has  discussed  the  ingredients  which  constitute

criminal conspiracy within the meaning of Section 120B of the IPC.  As we are

of the view that the evidence on record is not sufficient to prove the guilt of the

appellants under Section 120B of IPC, as such it is not necessary to elaborate

any further.  

20. Vide  impugned  judgment,  the  High  Court  has  confirmed  the  death

sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai.  Learned

counsel  for  the  appellants  relied  on  the  judgment  in  the  case  of  Ronny5

wherein  this  Court  has  held,  in  a  case  of  multiple  accused,  where  the

culpability of each accused is not clear to examine whose case falls within the

“rarest  of  rare  cases”,  it  would  serve  the  ends  of  justice,  if  the  capital

punishment is commuted into life imprisonment.  On the other hand, learned

18

Crl.A.Nos.1416-17/17 etc.

counsel appearing for the State of Chhattisgarh has submitted that the High

Court  has  considered  the  aggravating  and  mitigating  circumstances  and

confirmed the death sentence so far as main accused, namely, Ishwari Lal

Yadav and Kiran Bai are concerned and there are no grounds to modify the

same.  Learned counsel for the State also relied on judgment of this Court in

the case of  Sushil  Murmu6.   In the above said case in similar set  of  facts

where killing of a nine year old boy as a sacrifice to the deity was dealt with,

this Court has upheld the death sentence imposed on the appellant therein.

21. It is clearly well settled that normal punishment for the offence under

Section 302 IPC is life imprisonment but in a case where incident is of “rarest

of rare cases” death sentence is to be imposed.  It is equally well settled that

only special facts and circumstances will warrant passing of death sentence

and  a  just  balance  has  to  be  struck  between  aggravating  and  mitigating

circumstances, before the option is exercised. While referring to the earlier

cases in the case of  Bachan Singh v. State of Punjab7 and Machhi Singh v.

State of  Punjab8 further  guidelines are summarised in the judgment  in  the

case of Sushil Murmu6.  Paragraphs 15 and 16 of the judgment read as under :

“15. The following guidelines which emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be applied to the facts of each individual case where the question of  imposition  of  death  sentence  arises:  (Machhi  Singh case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489, para 38)

7  (1980) 2 SCC 684 8  (1983) 3 SCC 470

19

Crl.A.Nos.1416-17/17 etc.

(i)  The  extreme  penalty  of  death  need  not  be  inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment  appears  to  be  an  altogether  inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose  sentence  of  imprisonment  for  life  cannot  be conscientiously exercised having regard to the nature and circumstances  of  the  crime  and  all  the  relevant circumstances.

(iv)  A  balance  sheet  of  aggravating  and  mitigating circumstances has to  be drawn up and in doing so the mitigating  circumstances  have  to  be  accorded  full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

16. In  rarest  of  rare  cases  when the  collective conscience of  the community is so shocked that it will expect the holders of the judicial power centre  to inflict  death penalty  irrespective of  their  personal opinion  as  regards  desirability  or  otherwise  of  retaining  death penalty,  death  sentence  can  be  awarded.  The  community  may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to  arouse  intense  and  extreme  indignation  of  the community.

(2)  When the  murder  is  committed  for  a  motive  which evinces total depravity and meanness e.g. murder by a hired  assassin  for  money  or  reward  or  a  cold-blooded murder for gains of a person vis-à-vis whom the murderer is  in  a  dominating position  or  in  a  position of  trust,  or murder  is  committed  in  the  course  of  betrayal  of  the motherland.

20

Crl.A.Nos.1416-17/17 etc.

(3) When murder of a member of a Scheduled Caste or minority  community  etc.  is  committed  not  for  personal reasons but in circumstances which arouse social wrath, or in cases of “bride-burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4)  When  the  crime  is  enormous  in  proportion.  For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of the murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a  public  figure  generally  loved  and  respected  by  the community.”

22. It is clear from the above judgment that this Court has laid down the

guidelines,  which  are  to  be  considered,  in  a  given  case  whether  capital

punishment should be imposed or not.  There cannot be any hard and fast

rule for balancing the aggravating and mitigating circumstances.  Each case

has  to  be  decided  on  its  own  merits.   In  a  “rarest  of  rare  case”  capital

punishment  is  to  be  imposed.   To  come  to  conclusion  in  each  case

aggravating  and  mitigating  circumstances  are  to  be  considered.   Further

factors  like,  age  of  the  accused,  possibility  of  reformation,  gravity  of  the

offence etc. are also to be kept in mind.

23. In this case it  clear from the evidence on record, the main accused,

namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the

two year old child Chirag as a sacrifice to the God.  It is to be noticed, they

21

Crl.A.Nos.1416-17/17 etc.

were  having  three  minor  children  at  that  time.   Inspite  of  the  same,  they

committed the murder of the deceased, a child of two years of age brutally.

The head of the helpless child was severed, his tongue and cheeks were also

cut.  Having regard to age of the accused, they were not possessed of the

basic humanness, they completely lacked the psyche or mindset which can be

amenable  for  any  reformation.   It  is  a  planned  murder  committed  by  the

aforesaid two appellants.  The appellants herein who are the main accused,

namely, Ishwari Lal Yadav and Kiran Bai were also convicted on an earlier

occasion for  the offence under  Section 302/34 and Section 201 of  IPC in

Sessions Trial No.98/2011 by the learned Sessions Judge, Durg, for similar

murder of a 6 year old girl for which they were convicted and sentenced to

death, but such sentence was modified on appeal in  Criminal Appeal No.1068

of  2014  by  the  High  Court  of  Chhattisgarh  at  Bilaspur  and  they  were

sentenced to undergo life imprisonment without any remission or parole.  On

appeal to this Court, the order of the High Court is.  Such conviction for similar

offence can be considered as aggravating factor.  By following the guidelines

as mentioned in the case of  Sushil Murmu6 we are of the view that this is a

case of “rarest of rare cases” where death sentence imposed by the trial court

is rightly confirmed by the High Court.   As the case is proved beyond any

reasonable doubt so far as the main accused are concerned, the judgment

relied on by the learned counsel for the appellants in the case of Ronny5 also

is not helpful to them.

22

Crl.A.Nos.1416-17/17 etc.

24. For the aforesaid reasons the appeals filed in Criminal Appeal Nos.300-

301  of  2018  and  Criminal  Appeal  Nos.298-299  of  2018  are  allowed  and

conviction recorded and sentence imposed upon the appellants therein is set

aside.  They shall be released forthwith if their custody is not required for any

other  case.   Criminal  Appeal  Nos.1416-1417 of  2017 and Criminal  Appeal

No.1418-1419 of 2017 filed by Ishwari Lal Yadav and Kiran Bai respectively

are  partly  allowed,  setting  aside  the  conviction  recorded  and  sentence

imposed for the offence under Section 364/34 and 120B of the IPC.  However,

their conviction under Section 302/34 and 201, IPC is confirmed, confirming

the death sentence imposed on them for the offence under Section 302/34

IPC.   The  sentence  imposed  on  them  under  Section  201  IPC  is  also

confirmed.

….……………………………….J. [ROHINTON FALI NARIMAN]

….……………………………….J. [R. SUBHASH REDDY]

….……………………………….J. [SURYA KANT]

New Delhi.

October 03, 2019.

23

Crl.A.Nos.1416-17/17 etc.

REPORTABLE     

 IN THE SUPREME COURT OF INDIA

     CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NO. 1522 OF 2019

(Arising out of S.L.P.(Crl.)No.7947 of 2017)

Ishwari Lal Yadav & Anr.              …..Appellants

vs.

State of Chhattisgarh           ...Respondent   

J U D G M E N T

R.Subhash Reddy,J.

1. Leave granted.

2. This appeal is filed by appellant Nos. 1         and

2  in  Criminal  Appeal  No.1068  of  2014  filed

before  the  High  Court  of  Chhattisgarh,  Bilaspur,

aggrieved  by  the  common  judgment  in  Criminal

24

Crl.A.Nos.1416-17/17 etc.

Reference No.4 of 2014 and Criminal Appeal No.1068  of

2014.  The  appellants  herein  were  charged  for

offences  punishable  under  Sections  364/34  read  with

120B IPC, Sections 302/34 read with 120B IPC and Section

201 IPC.   On the aforesaid charges they were tried in

Sessions  Trial  No.98  of  2011  by  the  learned

Sessions  Judge,  Durg,  and  they  were  convicted  for  the

offences charged and sentenced for imprisonment for life

and  a  fine  of  Rs.5,000/-  was  imposed  for  the  offence

under  Sections  364/34  read  with  120B  IPC,  sentence  of

death  and  a  fine  of  Rs.5,000/-  for  the  offence  under

Sections 302/34 read with 120B IPC, rigorous imprisonment

for five years and a fine of Rs.2,000/- for the offence

under  Section  201  IPC.  In  view  of  the  death  sentence

imposed, the learned Sessions Judge made a reference to

the  High  Court  in  Criminal  Reference  No.4  of  2014.

Challenging the conviction recorded  and  the  sentence

imposed on them, appellants have filed Criminal Appeal

No.1068 of 2014. Vide impugned judgment dated 30.11.2016,

the  High  Court  has  confirmed  the  conviction  recorded

against appellants. However, the death sentence imposed

by the Trial Court is modified to imprisonment for life.

It was further observed that appellants-accused are not

25

Crl.A.Nos.1416-17/17 etc.

entitled  to  any  remission  or  parole.  Aggrieved  by  the

said judgment this appeal is filed.

3. On  04.03.2010,  Beeru  Dewar  (PW-2)  had  lodged  a

complaint  with  the  Police  Station,  Bhilai  Nagar,

stating  that  his  six  year  old  daughter  Ku.  Manisha

is missing.  

4. On  23.11.2010,  a  child  by  name  Chiraj  Rajput  was

found  missing  from  his  house.  A  missing  report  was

given  in  Police  Station,  Bhilai  Nagar,  District

Durg.  Thereafter,  the  parents  were  searching  for

their child.  On hearing loud music being played in the

house of appellants i.e. Ishwari Lal Yadav           (A-

1) and Smt. Kiran Yadav  (A-2),  they  entered  their

house. When  they  entered  the  house  they  found

freshly  dug  mound  of  earth  and  appellants

herein  who  were  claiming  as  “tantriks”, have  admitted

that  they  had  killed  Chirag  and  buried  him  there  to

attain  “siddhi”.  Further,  it  is  the  case  of  the

prosecution that during the investigation in the said

case, Mahanand Yadav (A-4), made a statement  to  the

police  that  about  seven/eight  months  earlier,  he  had

kidnapped one small girl on the asking of A-1 and A-2.

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Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            27

5. The said girl had been killed by way of human

sacrifice and her body was buried in the compound of

the appellants herein. On 24.11.2010, one constable of

Bhilai  Nagar  Police  Station  made  ‘O’  entry  to  the

effect, that an information has been received about

the kidnapped girl who had been killed by way of human

sacrifice  and  her  skeletal  remains  were  recovered

along with the cloths which she was wearing. On the

said date a statement was recorded  under  Ext.P-15.

On the basis of the aforesaid statement, investigation

was done and skeletal  remains  of  the  child  were

recovered.                   

6. After recovery of the skeletal remains, DNA test

was conducted  and  it  was  determined  that  skeletal

remains found in the house of Ishwari Lal Yadav (A-1)

and Smt. Kiran Yadav (A-2) were of Ku.Manisha who was

also  reported  to  be  missing.  After  completing

investigation,  the  appellants  herein  were  charged

for the offences alleged against them.  

7. On behalf of the prosecution, PW-1 to PW-21 were

examined  to  prove  the  guilt  of  accused.  The  Trial

Court on appreciation of evidence on record has held

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Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            28

that the appellants and two other accused are guilty

for  the  charges  framed  against  them,  convicted  and

sentenced the appellants as follows :

Accused Conviction U/s.

Sentence

Ishwari Lal Yadav 364/34  and 120B IPC

Imprisonment  for  life  and fine of Rs.5000/-. In default of  payment  of  fine,  further rigorous  imprisonment  for four months.

302/34  and 120B IPC

Death  sentence  and  fine  of Rs.5000/-.   In  default  of payment  of  fine,  further rigorous  imprisonment  for four months.

201 IPC Rigorous  imprisonment  for five  years  and  fine  of Rs.2000/-.   In  default  of payment  of  fine,  two  months rigorous imprisonment.

Smt. Kiran Yadav @  Gurumata

364/34  and 120B IPC

Imprisonment  for  life  and fine of Rs.5000/-. In default of  payment  of  fine,  further rigorous  imprisonment  for four months.

302/34  and 120B IPC

Death  sentence  and  fine  of Rs.5000/-.   In  default  of payment  of  fine,  further rigorous  imprisonment  for four months.

201 IPC Rigorous  imprisonment  for five  years  and  fine  of Rs.2000/-.   In  default  of payment  of  fine,  two  months rigorous imprisonment.

28

Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            29

8. On appeal, High Court has acquitted accused nos.3

and 4, namely, Rajendra Kumar Mahar and Mahanand Yadav

respectively.   So  far  as  appellants  are  concerned

their  conviction  is  confirmed,  the  death  sentence

imposed on them is modified to one of imprisonment for

life for offence under Section 302/34 and 120B, IPC.

At  the  same  time  their  conviction  and  sentence  is

confirmed  for  the  offence  under  Section  364/34  and

120B IPC and 201 IPC.

9. We have heard Sri Siddhartha Dave learned senior

counsel appearing for the appellants and Sri Sumeer

Sodhi,learned  counsel  appearing  for  the  respondent-

State of Chhattisgarh.

10. It is contended by the learned senior counsel for

the  appellants  that  the  prosecution  has  failed  to

prove the guilt of accused beyond reasonable doubt and

inspite of the same they were convicted and sentenced

for the offences alleged. It is submitted that the

confessional statements ought not to have been relied

on in absence of any corroborative evidence to prove

29

Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            30

the guilt of the accused. It is further contended that

there are material contradictions among the witnesses,

as such the evidence is unreliable.  It is further

submitted that the femur bone that was preserved, was

sent to CDFC Hyderabad for DNA analysis, and in fact

the report relied upon by the prosecution was the FSL

Report,  Sagar.  Even  the  FSL   Report  does  not

conclusively draw to the fact that PW-3 is the mother,

but, states that she is a biological relative.  There

are also discrepancies with regard to the cloths found

on her. Further, it is submitted that appellants were

in custody from 23.11.2010 and recoveries were made on

24.11.2010 but disclosure  statements were recorded

thereafter.

11. As  such,  it  is  submitted  that,  same  raises  a

strong  probability  that  these  weapons  have  been

planted by the police. It is further submitted that

even  the  blood  which  was  found  on  the  weapons,

there  is  no  proof  that  it  was  human  blood.  In

support of his arguments, learned counsel has relied

on the judgments of this Court in the case of Aghnoo

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Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            31

Nagesia vs. State of Bihar9, Sahadevan  & Anr.  vs.

State of Tamil Nadu10, Shambu Nath Mehra vs. The State

of Ajmer11, Ronny vs. State of Maharashtra12,  State of

Goa  vs.  Sanjay  Thakran13, Prakash  vs.  State  of

Karnataka14 and Firozuddin  Basheeruddin  &  Ors.  vs.

State of Kerala15.         

12. To  buttress  the  submission  that  as  there  is

strong probability that the weapons seized have been

planted by the police, as such recoveries cannot be

relied on, learned counsel relied on the judgment in

the case of   Sanjay Thakran5.  Further, reliance is

also placed on the judgment in the case of  Prakash6.

In support of his submission that as the blood on the

weapon used in crime is not shown to be that of the

deceased,  it  raises  a  grave  suspicion  that

investigation was not fair and benefit of doubt is to

be given to the accused.

13. On  the  other  hand  Sri  Sumeer  Sodhi,  learned

counsel  appearing  for  the  respondent-State  has 9AIR 1966 SC 119 10(2012) 6 SCC 403,  111956 SCR 199 12(1998) 3 SCC 625, 13(2007) 3 SCC 755 14(2014) 12 SCC 133. 15(2001) 7 SCC 596

31

Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            32

submitted that as the case relates to the gruesome

murder of a minor girl  of six years, for the purpose

of  human  sacrifice  and  from  the  oral  evidence  on

record, the prosecution has proved the guilt of the

accused beyond reasonable doubt, as such there are no

grounds to interfere with the impugned judgment. It is

submitted  that  when  a  child  of  two  years  by  name

Chirag was missing, his parents were on search for

missing child along with family members and residents

of locality, on hearing the loud music emanating from

the house of the appellants, they got suspicious and

entered the house.  It is submitted that at that point

of  time  both  the  appellants-accused  have  confessed

their guilt of committing the act of murder of Chirag

and burying the body in the precinct of the house.  It

is submitted that looking at the fresh mound of mud,

same was excavated and the body of Chirag was found in

two parts.  At that time one of the accused in the

said case also revealed committing of similar offence

of  a  girl  child.   It  is  submitted  that  there  was

already a complaint of missing child of six year old

daughter of Beeru Dewar (PW-2), lodged on 04.03.2010,

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Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            33

investigation was made.  Further investigation of the

police revealed that they have kidnapped and committed

murder of minor girl by name Km.Manisha.  She was also

buried  near  to  the  place  of  Chirag.   As  such  by

excavating  skeletal  remains  along  with  cloths  were

taken out.  It is submitted that from the evidence on

record it is clearly proved by confession of several

independent witnesses, which is corroborated by other

evidence on record to prove that Manisha was murdered

for the purpose of human sacrifice by appellants, as

such they were rightly convicted and sentenced by the

Trial Court and their sentence of death was modified

by the High Court to that of imprisonment for life

without  any  remission  or  parole.   As  such,  it  is

submitted that there are no grounds to interfere with

the same.   Learned  counsel has also relied on the

judgment in the case of  Sushil Murmu vs.  State of

Jharkhand16.   

14. Having  heard  the  learned  counsels  on  both  the

sides, we have perused the impugned judgment and also

the other material on record.                      

16(2004) 2 SCC 338.

33

Crl.A. @ SLP(Crl.) No. 7947 of 2017                                                                            34

15. To prove the guilt of appellants-accused, several

independent witnesses were examined. From the evidence

on record it is clear that on 23.11.2010 when there

was  search  by  the  parents  of  the  deceased  Chirag

Rajput for their missing child along with others of

the locality, on hearing the loud music from the house

of the appellants, they got suspicious and entered the

house.  Upon entering the house a freshly dug mound of

earth was found in the house of the appellants and on

confession made by the appellants body of Chirag was

traced.  Further, as it was disclosed by one of the

accused  that  about  7/8  months  earlier,  they  have

kidnapped one small girl on the asking of A-1 and A-2

and  they  have  handed  over  the  girl  to  Ishwari  Lal

Yadav and Kiran Yadav, further investigation was made

in view of the complaint lodged by Beeru Dewar (PW-2)

on  04.03.2010.   On  04.03.2010,  Beeru  Dewar  (PW-2)

filed a report to the effect that his six year old

daughter  Ku.Manisha  was  missing.   On  further

investigation,  the  skeletal  remains  were  also

recovered from the house of the appellants from the

place adjoining from where body of Chirag was taken

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out.  In oral evidence Beeru Dewar (PW-2), father of

the deceased stated that when they went to the house

of Ishwari Lal Yadav (A-1), they found the skeletal

remains and they have also identified the cloths of

his daughter Ku. Manisha.   

16. Mother  of  the  deceased  Smt.  Durga  Bai  was

examined as PW-3.  In her deposition, she has stated

that about 1½ years earlier to the date of statement,

she  had  gone  to Kasaridih at  about  06.00  pm  for

begging.  Her daughter was wearing one red coloured

two piece set and at about 8.00 pm when pooja was over

in the temple, her daughter Ku. Manisha stated that

she  wanted  to  defecate.   She  also  stated  in  her

deposition that after sometime when she went back to

the  place  of  electric  pole  where  her  daughter  was

defecating, she did not find her there.  It is stated

that at the instance of police officials they went to

the  house  of  appellants  at  Ruabandha  and  in  her

presence a grave was dug which was inside the house of

the appellants and cloths of her daughter were lying

there along with some pieces of bones.  She identified

the cloths to be that of her daughter Ku.Manisha.   

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17. Dilip Thakur was examined as PW-11, who was one

amongst the persons who went inside the house of the

appellants in search of other child Chirag. He has, in

clear  terms,  stated  that  at  that  time  both  the

appellants  Ishwari  Lal  Yadav  and  Smt.  Kiran  Yadav

confessed that earlier they had sacrificed one small

girl child whom they had brought from  Kasaridih and

that she had been buried in their house.

18. PW-13 Shrikant Gawander stated that on pointing

out by  Ishwari Lal Yadav, some mound in the courtyard

was dug up and inside the same skeletal remains were

found along with red coloured frock and red coloured

underwear.   

19. PW-16  is  the  Assistant  Sub  Inspector,  who  has

recorded  the  merg  intimation  (Exhibit  P-28)  and

(Exhibit P-29).

20. One Khuman Singh Sahu was examined as PW-21.  In

his deposition he has stated that he knows accused

Ishwari  Lal  Yadav  and  his  wife  Smt.  Kiran  Yadav,

appellants herein, who are his neighbours.  He has

stated that both the accused A-1 and A-2 were engaged

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in witchcraft. Rajendra Kumar (A-3) and Mahanand Yadav

(A-4) are the disciples of (A-1) and (A-2).  He was

also  one  of  the  members  in  the  team  in  search  of

missing  boy  Chirag  earlier.   He  too  stated  in  his

deposition that the appellants have admitted that one

girl  by  name  Ku.  Manisha  who  had  been  kidnapped

earlier, had been sacrificed by them. A confession is

also to the effect that they have buried the girl next

to the place where Chirag’s body has been buried.

21. From  the  evidence  on  record,  it  is  clearly

established beyond reasonable doubt that Km.Manisha is

the daughter of PW-2 and PW-3 and was missing since

04.03.2010.  Though, the said complaint was recorded

in  the  Police  Out  Post  Padmanabhpur,  Durg,  on

04.03.2010 but there was no breakthrough. Only after

Chirag’s case has come to light,  based on admissions

by  the  appellants  and  two  others,  further

investigation  revealed  that  the  appellants  earlier

also committed similar offence of murder of Km.Manisha

for their  tantrik activities and buried the body of

minor girl in their house.  

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22. The confessional statements made to the police by

the appellants, cannot be the basis to prove the guilt

of the accused but at the same time there is no reason

to  discard  the  confessions  made  to  the  independent

witnesses at the time when Chirag’s body was found,

prior to the arrival of police. It is true that extra

judicial confession, is a weak piece of evidence but

at the same time if the same is corroborated by other

evidences on record, such confession can be taken into

consideration to prove the guilt of the accused.  In

the  case  on  hand,  the  evidence  from  independent

witnesses is in one voice and consistent.  The medical

evidence on record also substantiated the case of the

prosecution.  In addition to the same, PW-2 and PW-3

who are the parents of the deceased have identified

the cloths, which the deceased child was  wearing on

the  date  of  missing.   It  is  also  clear  from  the

evidence that the skeletal remains were removed.  They

have also found the cloth pieces, attached to skeletal

remains.  The colour of such cloth pieces was tallied

with the description in the missing report lodged by

PW-2 earlier on 04.03.2010.  As such it is clearly

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proved beyond any reasonable doubt that the appellants

are responsible for the offence alleged against them.  

23. Learned counsel for the appellants has relied on

a  judgment  of  this  Court  in  the  case  of  Aghnoo

Nagesia1  to buttress his contention that the courts

below have committed error in recording a finding of

guilt of the appellants based on confession.  But same

is  a  case  where  the  appellant  therein  was  charged

under  Section  302  IPC  for  murdering  his  aunt  and

others and there were no eye witnesses to the murder.

The principal evidence against the appellant was First

Information Report which contains a full confession of

guilt by the appellant himself.  The said confession

was  made  to  a  police  officer  and  the  same  is  not

provable having regard to Section 25 of the Indian

Evidence Act. Further reliance is also placed on a

judgment of this Court in the case of Sahadevan2.  In

the  aforesaid  judgment  of  two-Judge  Bench  of  this

Court it is held that the extra judicial confession is

a weak piece of evidence and court must ensure that

same inspires confidence and is corroborated by other

prosecution  evidence.   If  the  totality  of  oral

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evidence on record is considered in the case on hand,

it is consistent and inspires confidence of the case

of  the  prosecution  to  prove  the  guilt  of  the  main

accused.   We  are  of  the  view  that  the  aforesaid

judgments would not render any assistance to support

the case of the appellants.

24. Learned counsel also relied on the judgment of

this Court in the case of Shambu Nath Mehra3.  In the

aforesaid  judgment  this  Court  has  held  that  in  a

criminal case burden of proof is on the prosecution

and Section 106 is certainly not intended to relieve

it of that duty.  It is held that on the contrary, it

is designed to meet certain exceptional cases in which

it  would  be  impossible,  or  at  any  rate

disproportionately difficult, for the prosecution to

establish  facts  which  are  “especially”  within  the

knowledge  of  the  accused  and  which  he  could  prove

without difficulty or inconvenience.  In this case on

hand it is proved by cogent evidence that the body of

Chirag was found in the house of Ishwari Lal Yadav.

By applying the provision under Section 106 of the

Indian Evidence Act definitely it is the burden of

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the accused to explain the fact within the knowledge

of them how the body of Chirag came to be buried in

their house. The judgment relied on in the case of

Shambu Nath Mehra3 also would not be helpful for the

appellants.  In the case of  Firozuddin Basheeruddin7

this  Court  has  discussed  the  ingredients  which

constitute criminal conspiracy within the meaning of

Section 120B of the IPC.  As we are of the view that

the evidence on record is not sufficient to prove the

guilt of the appellants under Section 120B of IPC, as

such it is not necessary to elaborate any further.

25. The  other  judgments  relied  on  by  the  learned

counsel  for  the  appellants  in  the  case  of  Sanjay

Thakran5 and the judgment in the case of Prakash6 also

would not render any assistance to the case of the

appellants having regard to facts and circumstances of

the present case.  Apart from the recoveries there is

a  strong  and  consistent  evidence  of  independent

witnesses to prove the guilt of the accused. The FSL

Report, Sagar, conclusively establishes that PW-3 is

the biological relative of the deceased.  The said

evidence if considered  along with other oral evidence

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of PW-2 and PW-3, it is proved beyond reasonable doubt

that the skeletal remains of the body removed from the

house  of  the  appellants  was  only  that  of  their

daughter  Ku.Manisha.   It  is  also  proved  from  the

evidence  on  record  that  the  house  belonged  to  the

appellants where skeletal remains were removed.

26. Further, as there is no acceptable evidence on

record  except  the  alleged  confession  to  prove  the

offence under Sections 364/34 read with 120B IPC, the

appellants  are  entitled  for  acquittal  for  offences

punishable under Sections 364/34 and 120B IPC. At the

same time, by burying the dead body of the deceased

caused disappearance of evidence of offence, they are

rightly convicted for offence under Section 201 IPC.

27. Having regard to gruesome nature of murder, the

Trial Court has imposed the punishment of death for

offence under Sections 302/34 read with 120B IPC but

on appeal the High Court has modified the sentence to

that of imprisonment for life without any remission or

parole.  Considering the gruesome nature of murder the

sentence imposed by the High Court is to be confirmed.

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28. For the aforesaid reasons, this Criminal Appeal

is  partly  allowed,  setting  aside  the  conviction

recorded and sentence imposed for the offence under

Sections  364/34  read  with  120B  IPC.   However,  we

confirm the conviction recorded and sentence imposed

for the offence under Sections 302/34 and Section 201

IPC.       

              .....................J.

       [ROHINTON FALI NARIMAN]

.....................J.

[R. SUBHASH REDDY]

.....................J.

[SURYA KANT]

New Delhi,

October 03,2019

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