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Friday, July 26, 2013

Death penalty to imprisonment for life; circumstantial evidence; confession before police inadmissible but recovery part is admissible = 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.; confessional statement= “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 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.”

                                    reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40591
                              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, 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 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.

   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 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 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 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 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 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  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 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 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 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 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.

      (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.




  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.


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








                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 July 24, 2013.


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