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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1304 OF 2018

PRADEEP KUMAR ...APPELLANT

VERSUS

STATE OF CHHATTISGARH ...RESPONDENT

JUDGMENT

SANJAY KAROL, J.

1.On 01.10.2003, Umesh Chowdhary, a resident of village

Chitarpur falling within the territorial limits of Police

Station Dhaurpur District was allegedly murdered by

accused Pradeep Kumar (Appellant No. 2 in CRA No.940 of

2004) before the High Court Chhattisgarh, Bilaspur and

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Bhainsa alias Nandlal (Appellant No.1. before the High

Court in the very same appeal) in relation to which FIR

No.126/03 (Ex.P-6) was registered at Police Station

Dhaurpur.

2.On 02.10.2003, Investigation Officer, I. Tirkey (PW-19)

commenced investigation and after verifying the place of

occurrence sent the dead body for post-mortem analysis

which was conducted by Dr. Kamlesh Kumar (PW-14) in

terms of his report (Ex.P-10). Investigation revealed that the

crime was committed on account of animosity which the

Appellant was harbouring against the deceased. The motive

being the former’s desire to use the shop in possession of

the deceased in village Chitarpur.

3.The Trial Court, based on the extra judicial confessional

statement (Ex.P-11) of accused Pradeep Kumar made in the

presence of Ramkripal Soni (PW-1) and Gopal Yadav (PW-7),

the depositions of Gajadhar Chowdhary (PW-10) father of

the deceased, co-villagers Sirodh (PW-6), Radhika (PW-13)

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wife of (PW-7), all establishing the factum of prior

animosity/“tension” inter se the parties; and with the

addition of the police recovered keys of the shop of the

deceased and his currency notes amounting to Rs.300/-

from the possession of the Appellant. The Court convicted

both the accused in relation to offences punishable under

Section 302/34 IPC and 201/34 IPC and sentenced them to

serve imprisonment for life and pay fine of Rs.500/- in

relation to the offence under Section 302/34 as also suffer

imprisonment for seven years and pay fine of Rs.500/- in

respect of the offence punishable under Section 201 IPC.

4.The Trial Court found the testimonies of both PW-1 and

PW-7 reliable (despite PW-1 not supporting the prosecution)

and the prosecution to have established the factum of

accused Pradeep Kumar having confessed his guilt before

the Investigation Officer (PW-19). The Ld. Trial Court also

found the recovery of articles seized as a result of the

disclosure of statement, to be an additional link, as a chain

of events, in support of the case set up by the prosecution.

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5.However in an appeal preferred by both the accused, the

High Court upheld the conviction of accused Pradeep

Kumar in relation to all the offences and the sentences in

terms thereunder, but acquitted accused Bhainsa alias

Nandlal on all counts.

6.Hence, the present appeal filed by the Appellant – accused

Pradeep Kumar. Significantly, none of the Courts below have

returned finding to the effect that the guilt of the accused

stands proven by the prosecution, beyond reasonable doubt.

Suspicion, howsoever grave or probable it may be, cannot

substitute the evidence, be it circumstantial or direct in

nature, in establishing the guilt of the accused beyond

reasonable doubt, the onus of which, at the first instance, is

to be discharged by the prosecution. The distance between

“may be” and “must be” is quite large and it divides vague

conjectures from solid conclusions. [Shivaji Sahabrao

Bobade & Another v. State of Maharashtra, (1973) 2 SCC

793.]

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7.The High Court, by relying upon the principles of law

enunciated by the Apex Court in Hari Charan Kurmi vs

State Of Bihar, AIR 1964 SC 1184 , to the effect that

confession of a co-accused being inculpatory in nature,

cannot be used against the accused, acquitted Bhainsa

alias Nandlal.

8.However, in so far as accused Pradeep Kumar is concerned

the Court found testimonies of (PW-1) and (PW-7) to be

absolutely inspiring in confidence and that the witnesses

“being independent and disinterested”, having no reason to

“manufacture evidence”, “falsely implicating” the accused.

Further, the High Court held that the defence was not able

to show that the extra-judicial confession made by Pradeep

Kumar (Appellant No.2) before the said witnesses was

“involuntary” or “made on account of any coercion”,

“inducement”, “promise” or “favour”. The Court below also

held that there is no reason “whatsoever” to disbelieve the

testimonies of PW-1 & PW-7 qua the issue of extrajudicial

confession.

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9.The accused cannot be convicted on the principles of

preponderance of probability. It is the duty of this Court to

ensure avoidance of miscarriage of justice at all costs and

the benefit of doubt, if any, given to the accused. [Sujit

Biswas v. State of Assam, (2013) 12 SCC 406,

Hanumant Govind Nargundkar v. State of M.P. (AIR 1952

SC 343) and State v. Mahender Singh Dahiya, (2011) 3

SCC 109].

10.The impugned judgement to say the least, is sketchy. The

presumption of the guilt of accused Pradeep Kumar by both

the courts below is based on improper and incomplete

appreciation of evidence which in the considered view of

this Court, has resulted into travesty of justice.

11.The prosecution case, at best, rests upon three

circumstances (a) the alleged confessional statement of

accused Pradeep Kumar made before PW-1 and PW-7; (b)

prior animosity/“tension” between Pradeep Kumar and the

deceased; and (c) the recovery of the keys of the shop of the

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deceased and his currency notes amounting to Rs.300/- on

the asking of the accused.

12.Since both the Courts below have placed paramount

significance and reliance to the extra judicial confession

made by the Appellant, it is important to take note of the

principles enunciated by this Court in the case of

Sahadevan v. State of T.N., (2012) 6 SCC 403 as under:

“ 16.  …..

(i) The extra-judicial confession is a weak

evidence by itself. It has to be examined

by the court with greater care and

caution.

(ii) It should be made voluntarily and

should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains

greater credibility and evidentiary value

if it is supported by a chain of cogent

circumstances and is further

corroborated by other prosecution

evidence.

(v) For an extra-judicial confession to be

the basis of conviction, it should not

suffer from any material discrepancies

and inherent improbabilities.

(vi) Such statement essentially has to be

proved like any other fact and in

accordance with law.”

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13.Before we deal with each of the aforesaid circumstances, we

must place on record certain undisputed facts. Those being

(a) the homicidal death of deceased Umesh Chowdhary S/o

Gajadhar Chowdhary, (b) the identity of the deceased, (c)

the recovery of the dead body of the deceased from the

Dodki Nala of village Chitarpur, (d) the post-mortem of the

dead body conducted by PW-14 affirming the deceased to

have died as a result of asphyxia due to throttling and (e)

the cause of the death being homicidal in nature. The ante-

mortem analysis reflects multiple abrasions present on the

front portion of the neck of the deceased caused by a hard

and blunt object. There was a fracture of the hyoid bone,

congestion in both the lungs and the trachea rings.

14.Proceeding further, examining the testimonies of the

prosecution witnesses we find that it is the case of

Manorama Devi (PW-11), w/o the deceased to have deposed

that on 1.10.2003 finding her husband not to have returned

home at night, asked her elder son Vinay Kumar (PW-12) to

visit the shop and makes enquiries. Soon, he returned

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informing that his father’s dead body was lying besides the

road at Dodki Nala with marks of injuries. On the basis of

suspicion, Gajadhar Chowdhary (PW-10) father of the

deceased lodged a complaint with the police bearing FIR

No.126/03 (Ex.P-6) dated 2.10.2003.

15.Significantly, at this point in time, neither PW-11 nor PW-12

had suspected any person to have committed the crime.

16.Gajadhar Chowdhary (PW-10) states that it was he who

made inquiries about the death of the deceased and as

disclosed to him by Sirodh (PW-6), owner of the shop,

deceased was lastly seen by him closing the shop around

8:00 PM. We note that there is a significant time gap

between when the deceased was lastly seen by him and the

time of the crime. Also he was not seen in the company of

the accused. In his testimony he states that accused

Bhainsa and Pradeep Kumar killed Umesh Chowdhary but

then this fact is based on “his suspicion” for the reason that

accused had “harboured animosity” in connection with the

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shop. Well that is about all and without any further

elaboration.

17.Significantly, even this limited fact is not disclosed in the

complaint. Also to this effect, we find there is material

improvement in his testimony. That apart, we do not find

this witness to be reliable or his testimony worthy of

credence. He failed to make inquiries about the cause of the

incident from any of the villagers. He is not a spot witness.

He is also not the witness who had lastly seen the Appellant

with the deceased or the Appellant having gone either

towards the shop of the deceased or the place of occurrence

of the incident, both being two separate places. However,

what is crucial, rendering his version to be self belied, in his

unequivocal admission that, “no quarrel ever took place

prior to the fatal incident between the deceased and the

accussed” and that he “never lodged any report in

connection with any quarrel.”

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18.To this very effect, we may also take note of the deposition

of Sirodh (PW-6) who, in any event, has not supported the

prosecution in Court.

19.When we come to the deposition of Vinay Kumar (PW-12)

son of the deceased, unequivocally he states that “... later

on the police personnel told me that accused persons have

thrown my father after committing murder...” Now this

totally belies the testimony of his grandfather Gajadhar

Chowdhary (PW-10). To similar effect, it is the testimony of

Radhika (PW-13) who only adds that “...Later on I came to

know that Umesh has been murdered. I heard from the

villagers...”. Significantly, her statement that she was not

informed by her husband (PW-7), of the deceased being

murdered by the Appellant was not recorded in her previous

statement with which she was confronted. But what is

crucial is her deposition is that her husband himself was a

suspect and that she admits it to be correct, “... that the

police personnel took my husband for inquiry in connection

with the murder of deceased. The police personnel kept my

husband for one day...” This negates one of the

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circumstances that there was tension between the deceased

and the accused, which was, the motive of commission of

crime, i.e. issue of use of the shop inter se the parties.

20.We notice in respect of the next circumstance, which is the

recovery of keys and the money, that there is no

independent corroborated material except for the

confessional statement of the accused, which also is not

proven on record. Even otherwise, the keys, the currency

notes and the blood stained clothes were not sent for

chemical analysis. There is only an unexhibited copy of the

FSL Report of the alleged blood stained clothes of the

Appellant which stands not proven by anyone. Also none

has come forward to depose that the accused had kept the

keys of the shop with himself, for after all, it is not the case

of the prosecution that the shop belonged to the accused.

21.The substratum of the evidence, that is the extra judicial

confessional statement of the Appellant, apart from being

hit by Section 27 of the Indian Evidence Act, 1872, we find

it not to have been supported by Ramkripal Soni (PW-1) and

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Gopal Yadav (PW-7), who as is evident, was himself a

suspect. He admits it to be “...correct to say that the

Inspector had detained me and some villagers where the

dead body was laying...” and “...it is correct to say that I did

not disclose the statement made by accused Pradeep to any

other person before 4 o’clock...” We have already noticed his

wife Radhika (PW-13) to have supported this statement.

Now, if this witness was himself a suspect, his testimony

cannot be said to be unimpeachable or free from blemish.

Still further, deposition of PW-7 reveals the witness not to

have deposed truthfully and the prosecution to have

introduced another theory as according to him the accused

had immediately, after the incident confessed the crime with

him. This was in the night intervening first and second

October, 2003. But then, he does not disclose such fact to

anyone. We may remind the prosecution that he is a co-

villager. His version also appears to be false for he admits

voices and noises were audible from the place of the

occurrence of the incident and that he heard none on the

fateful day. He admits that there are houses of other

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persons including Ramsanehi, closer to the spot of crime.

He did not bother to make inquiries for ascertaining the

truth from any of the co-villagers, including all those named

by him. This witness, in our considered view, cannot be said

to be reliable and trustworthy and this we say so for the

reason, that as according to his deposition, he received

information of the death of deceased at 7:00-8:00 AM, the

following morning and yet he did not visit the spot of the

crime until the police reached, which was at 10:00 AM and

only much later, got his statement recorded at about 4:00

PM. His stoic silence, in not informing or meeting any of the

family members of the deceased, neighbours or Police is

unexplainable.

22.Dealing with the star witness of the prosecution which is

the Investigation Officer, I.Tirkey (PW-19), we find his

testimony to be wholly unworthy of any credence:

unbelievable; and the witness to be unreliable. This we say

so for the reasons that he did not record the statement of

Gajadhar Chowdhary (PW-10) or Gopal Yadav (PW-7) in

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respect any prior animosity between the deceased and the

accused. The evidence pertaining to the genesis of the crime

was not collected by him. He also does not state as to what

made him detain accused Pradeep Kumar on 3.10.2023. Be

that as it may, he did not examine witnesses, who in our

considered view, perhaps may have thrown some light about

regard to the actual occurrence of the incident. He admits

that houses of Ramsevak, Gopal and Rashri are just at a

distance of 30 to 70 meters from the spot of the crime. Yet,

he did not examine any of them. Why so? No explanation is

forthcoming. Crucially, he admits that, “the investigation

concluded having no direct evidence” indicating the time

and the manner in which the crime took place. He admits to

have prepared some document in relation to the keys

recovered from the accused however no such fact is

recorded in his diary. In fact, such fact is not found

recorded in the Panchnama prepared by him. The basis for

the Investigation Officer (PW-19) to have arrived at the guilt

of co-accused Bhainsa is missing in his statement. In fact,

he does not even state to have suspected Bhainsa of having

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committed any crime. The sole basis for the Investigation

Officer (PW-19) to have arrested the Appellant for having

committed the crime is his extra judicial confession (Ex.

P.11) which in our considered view, apart from becoming

inadmissible, is of no use as it has not led to recovery of any

new fact – be it the place of the grocery shop; prevailing

tension between the accused and the deceased; recovery of

the body of the deceased near the Dodki drain: All these

facts were known to the police from before and as far as

recovery of money and keychain is concerned we have

already discussed issue.

23.Apart from sending the dead body for post-mortem, the

Investigation Officer (PW-19) does not state what

investigation he conducted on the crime spot. It is the case

of the prosecution that only this person conducted the

investigation and that he was not engaged in any other

crime or had to attend to other urgent work, resulting into

the delay thereof. Perusal of the First Information Report

(Ex.P-6) does reveal Gajadhar Chowdhary (PW-10) to have

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disclosed the name of accused Pradeep Kumar as a suspect

in the crime. Whether such report was lodged in time or

not, itself is in doubt. That apart if the Investigation Officer

(PW-19) was himself aware of the suspect then what

prevented him from immediately detaining or examining

him. In fact, it has come on record that other persons were

detained as suspects. The investigation conducted is

absolutely shady and has been done in a casual manner. In

this backdrop it cannot be said that the prosecution

witnesses, more specifically (PW-19), (PW-10) and (PW-7)

have deposed truthfully.

24.It is important to note that the cardinal principles in the

administration of criminal justice in cases where heavy

reliance is placed on circumstantial evidence, is that where

two views are possible, one pointing to the guilt of the

accused and the other towards his innocence, the one which

is favourable to the accused must be adopted. [Kali Ram v.

State of H.P. (1973) 2 SCC 808].

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25.In the present case, we state that the circumstances present

before us, taken together, do not establish conclusively only

one hypothesis, that being the guilt of the accused, Pradeep

Kumar. The presumption of innocence remains in favour of

the accused unless his guilt is proven beyond all reasonable

doubts against him. [Babu v. State Kerala, (2010) 9 SCC

189]. The cherished principles or golden threads of proof

beyond reasonable doubt which runs through the web of

our law should not be stretched morbidly which was done

by the Courts below.

26.In the present case, we find neither the chain of

circumstances to have been completely established nor the

guilt of the accused alone, having committed the crime to be

proven, much less beyond reasonable doubt. This Court has

stated essential conditions that must be fulfilled before an

accused can be convicted in a case revolving around

circumstantial evidence in the landmark case of Sharad

Birdhichand Sarda v. State of Mahrashtra, (1984) 4 SCC

116:

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“153. A close analysis of this decision would

show that the following conditions must be

fulfilled before a case against an accused can be

said to be fully established:

(1) the circumstances from which the conclusion

of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated

that the circumstances concerned “must or

should” and not “may be” established. There is

not only a grammatical but a legal distinction

between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973)

2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ

1783] where the observations were made: [SCC

para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the

accused must be and not merely may be guilty

before a court can convict and the mental

distance between ‘may be’ and ‘must be’ is long

and divides vague conjectures from sure

conclusions.”

(2) the facts so established should be consistent

only with the hypothesis of the guilt of the

accused, that is to say, they should not be

explainable on any other hypothesis except that

the accused is guilty,

(3) the circumstances should be of a conclusive

nature and tendency,

(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete

as not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human

probability the act must have been done by the

accused.”

27.Normally, we do not interfere with the concurrent findings of

fact of the Courts below. We step in only in exceptional

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cases or where gross errors are committed, overlooking

crying circumstances and well established principles of

criminal jurisprudence leading to miscarriage of justice.

Hence it becomes our bounden duty to correct such findings

in view of the principles enunciated in Ramaphupala

Reddy v. State of Andhra Pradesh, (1970) 3 SCC 474,

Balak Ram v. State of U.P., (1975) 3 SCC 219 and

Bhoginbhai Hirjibhai V. State of Gujarat, (1983) 3 SCC

217.

28.To conclude, we state that both the courts below, erred in

finding the Appellant guilty of having committed the crime,

charged for, under Section 302/34 IPC read with 201/34

IPC. Hence we set aside the findings of guilt and sentence

arrived at vide judgment dated 28.08.2004 by the Ld. Trial

Court as subsequently affirmed by the High Court in its

judgement dated 21.07.2017 in CRA No.940 of 2004 titled

as Bhainsa@Nandlal and Anr. vs. The State of Chhattisgarh.

29.The appeal is allowed and the Appellant stands acquitted of

all the charges framed against him.

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We direct the Appellant Pradeep Kumar be released

forthwith unless required in any other case.

………………………..J.

(B.R. Gavai)

…………………….…J.

(Sanjay Karol)

Dated: 16

th

March, 2023;

Place: New Delhi.