ANUJ KUMAR GUPTA @ SETHI GUPTA Vs. STATE OF BIHAR-24 July 2013-Supreme Court Judgments

                                                                  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.