Arun Mourya Vs State of Chhattisgarh

 Amar Singh Rajput, S/o Bhaiyalal Rajput, aged about 30 years, R/o Khas Niwas Village & P.S. Lahar, District Bhind (M.P.), present address- Rumgadha, Balconagar, District Korba (C.G.) ... Appellant(s)

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(In Jail)

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Versus

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State of Chhattisgarh, through: District Magistrate, Korba, District Korba (C.G.) ... Respondent(s)

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And

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CRIMINAL APPEAL NO. 1557 OF 2017

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 Baby Singh Rajput, W/o Shri Amar Singh Rajput, aged about 26 years, R/o Khas Niwas Village Bhatgaon, P.S. Balco Nagar, District Korba (C.G.), present address- Rumgada Chowk Kinare, Balco Nagar, Korba, District Korba (C.G.) ... Appellant(s)

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(On Bail)

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Versus

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State of Chhattisgarh, through: District Magistrate, Korba, District Korba (C.G.) ... Respondent(s) With

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CRIMINAL APPEAL NO. 786 OF 2018

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Arun Mourya, S/o Mohan Lal Mourya, aged about 36 years, R/o 273/05/05/A Type, Balco, permanent R/o Chantidih, Bilaspur, present R/o Rumgada, Balconagar, District Korba (C.G.) ... Appellant(s)

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(On Bail)

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Page 2 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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Versus

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State of Chhattisgarh, through: Station House Officer, Korba, P.S. Kotwali, Korba, District Korba (C.G.)

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... Respondent(s)

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(Arising out of Judgment dated 4.4.2017 passed by Second Additional Sessions Judge, District Korba in Sessions Case No.99 of 2015)

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For Appellants	:-	Mrs. Indira Tripathi,
[Cr.A. No.262/2018 &		Advocate.
Cr.A. No.1557/2017]
For Appellant	:-	Mr. Ashutosh Pandey,
[Cr.A. No.786/2018]		Advocate.
For Respondent/State	:-	Mr. H.A.P.S. Bhatia, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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C A V Judgment

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Sanjay K. Agrawal, J.

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1 . Since the present batch of three criminal appeals have arisen out of the same impugned judgment, they have been clubbed together, heard together and are being disposed of by this common judgment.

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2 . These three criminal appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC) have been preferred separately by the three accused appellants herein, i.e, A-1 Amar Singh Rajput, who

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Page 3 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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has filed Cr.A. No.262/2018, A-2 Baby Singh Rajput who has moved Cr.A. No.1557/2017 and A-3 Arun Mourya who has preferred Cr.A. No.786/2018, assailing the judgment dated 4.4.2017 passed by learned Second Additional Sessions Judge, District Korba in Sessions Case No.99/2015, whereby each of the three appellants herein has been convicted and sentenced as mentioned in the following chart:-

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Conviction		Sentence
1. Under Section 120-B of IPC.	1. 2. 3.	Imprisonment for Life. Fine of Rs.500/-. Rigorous Imprisonment for 6 months, in default ofpayment of fine.
2. Under Section 302/34 of IPC.	1. 2. 3.	Imprisonment for Life. Fine of Rs.500/-. Rigorous Imprisonment for 6 months, in default ofpayment of fine.
3. Under Section 201/34 of IPC.	1. 2. 3.	Rigorous Imprisonment for 7 years. Fine of Rs.300/-. Rigorous Imprisonment for 2 months, in default ofpayment of fine.
4. Under Section 404/34 of IPC.	1. 2. 3.	Rigorous Imprisonment for 3 years. Fine of Rs.200/-. Rigorous Imprisonment for 1 month, in default ofpayment of fine.
All substantive senten to run co	ces ncu	have been directed rrently.

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Page 4 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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3 . Factual backdrop of the case as unfolded during the trial is as under:-

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(A) On 8.7.2015 at about 10:00 pm at Shiv Nagar,

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Rumgada under the jurisdiction of Police Station Balco, the three accused appellants herein i.e. A-1 Amar Singh Rajput, A-2 Baby Singh Rajput and A-3 Arun Mourya along with the other two absconding coaccused persons, A-4 Vinod Chouhan and A-5 Mukesh Chouhan, formed a criminal conspiracy with a common object to commit murder of Lakshman Das Dharmani (deceased) and in prosecution of their common object, they assaulted the deceased with their hands, fists & legs and thereafter A-1 Amar Singh Rajput strangled his neck till his death and further, with the intention to cause the evidence of murder to disappear and to screen themselves from legal punishment , the accused persons submerged the dead-body of the deceased in chuhiya nala , a small pond, and put stones over it so that it could not float to the surface and they also drowned the Activa scooty bearing Registration No.CG12-AA/3733 which

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was possessed by the deceased at the time of his death and thereafter the accused persons also

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Page 5 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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dishonestly misappropriated gold chain with locket, a gold ring and Rs. One lakh odd kept in a bag which were possessed by the deceased at the time of his death and were not in the possession of any person legally entitled to such possession, and converted the said properties for their own use, thereby committed the alleged offences.

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(B) On 9.7.2015, PW-1 Ravi Lalwani lodged a missing persons report at Police Station Darri, District Korba informing that Lakshman Das Dharmani (deceased), who was a resident of Raipur and was in the business of stationery, had come to Korba on 8.7.2015 and stayed in Prakash Lodge, as per Exhibit P-7A, situated in front of his stationery shop and at about 4:30 pm on the same day he took his (PW-1) Activa scooty bearing Registration No. CG12-AA/3733 to go to Katghora for business purpose but he did not return for quite some time. Therefore, he started making phone calls to the concerned traders to know about the whereabouts of the deceased and one of the traders at Darri informed him that the deceased had left for Korba at about 7:30 on the said scooty. However, the deceased did not return and his mobile

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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phone also was switched off. On the basis of said report of PW-1 Ravi Lalwani, a missing persons report (Exhibit P-1), bearing No.12/15, was registered in Rojnamcha Sahna (Exhibit P-19C) at 5.45 pm on 9.7.2015 itself and the investigation was started by Police Station Darri, Korba. During investigation, police received information from a secret informer that a white colour Honda Activa scooty was noticed near the house of A-2 Baby Singh Rajput, wife of A-1 Amar Singh Rajput. On the same day, call details record (CDR) and customer profile in respect of deceased Lakshman’s mobile phone having SIM No. 9893279728 of Bharti Airtel Limited was sought from Cyber Cell, Korba.

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(C) On 10.7.2015, after receiving the customer profile and CDR in respect of deceased Lakshman’s mobile no. 9893279728 from the Circle Nodal Office of Bharti Airtel Limited, vide Exhibits P-19 & P-20, it was found that the deceased was called from mobile no. 8959261322 many times during the relevant period and on that basis, A-1 Amar Singh Rajput, husband of A-2 Baby Singh Rajput who was possessor of the said mobile no. 8959261322, was

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Page 7 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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detained for interrogation. The next day, i.e., on 11.7.2015 at 8:40 am, memorandum statement of A-1 Amar Singh Rajput was recorded vide Exhibit P-15 in which he made a confession that on the date of incident he had seen his wife, PW-2 Baby Singh Rajput, along with the deceased in a compromise position and therefore he along with his friend A-3 Arun Mourya as well as cousins A-4 Vinod Chouhan and A-5 Mukesh Chouhan, who both are absconding, and also with the help of his wife A-2 Baby Singh Rajput assaulted the deceased Lakshman Das Dharmani with their hands, fists and legs inflicting serious injuries all over his body on account of which the deceased fainted and fell down on the ground and thereafter A-1 Amar Singh Rajput strangled his neck till his death and after that in order to dispose of the dead-body of deceased Lakshman Das Dharmani, A-4 Vinod Chouhan and A-5 Mukesh Chouhan took the dead-body on the said Activa scooty and A-1 Amar Singh Rajput and A-3 Arun Mourya followed them on a motorcycle possessed by A-3 Arun Mourya at that time and they thrown the dead-body in chuhiya nala

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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filled with water over the knees and put stones on the dead-body so that it could not float to the surface.

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(D) Subsequently, on the same day, i.e., on 11.7.2015, at 10:00 am, dead-body of deceased Lakshman Das Dharmani was recovered from chuhiya nala in presence of witnesses vide dead-body seizure panchnama (Exhibit P-17). Vide identification panchnama (Exhibit P-7), dead-body was identified to be that of the deceased Lakshman Das Dharmani by his son PW-6 Deepak Kumar Dharmani and other relatives of the deceased as well. At 11:00 am, dehati merg intimation (Exhibit P-18A) was recorded under Section 174 of CrPC and after that at 2:00 pm dehati nalishi (Exhibit P-26) was registered under Section 154 of CrPC at Police Station Balco Nagar. Vide Exhibit P-18A witnesses were summoned under Section 175 of CrPC and vide Exhibit P-9 inquest panchnama was prepared and thereafter the deadbody of deceased Lakshman Das Dharmani was subjected to post-mortem which was conducted by PW-8 Dr. C.N. Dey who vide his post-mortem report (Exhibit P-8) opined that the upper part of body including face neck and upper portion of limbs

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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showing blackening discoloration than the rest of the body which favours throttling, reflecting asphyxial changes. Viscera and long bone femur was preserved to rule out any other associated findings. Due to decomposition changes of visceral organ, exact opinion could not be expressed.

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(E) On 11.7.2015 itself, at 4:40 pm, another memorandum statement of A-1 Amar Singh Rajput was recorded vide Exhibit P-13A, pursuant to which cash of total Rs.37,500/- and one gold ring weighing 8-9 gram were recovered at 6:45 pm vide seizure memo Exhibit P-11 and further vide seizure memo Exhibit P-10 recorded at 7:30 pm, a white colour Activa scooty, bearing Registration No. CG12-AA/3733 was recovered. Similarly, pursuant to the memorandum statement of A-2 Baby Singh Rajput recorded at 4:00 pm vide Exhibit P-14, a mobile phone bearing SIM No. 8959261322 was recovered at 6:10 pm vide seizure memo Exhibit P-12. Likewise, pursuant to the memorandum statement of A-3 Arun Mourya recorded on the same day at 5:20 pm, a black colour motorcycle model Dream Yuga and make Honda, bearing Registration No.

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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CG12-AK/2291, was recovered at 8:40 pm vide seizure memo Exhibit P-14A, which, as per Exhibit P-35, was registered in the name of A-3 Arun Mourya. (F) FIR (Exhibit P-28) was registered against the accused persons at 7:20 pm on 11.7.2015 itself. Spot Map was prepared vide Exhibit P-29. Arrest of the appellants was made. Subsequently, vide letter dated 21.7.2015 (Exhibit P-21), Cyber Cell, Korba provided CDR in respect of mobile SIM No.8959261322 vide Exhibit P-22 and regarding mobile SIM No. 9893279728 vide Exhibit P-23 and as per the customer profile (Exhibit P-24) provided by concerned Nodal Office of IDEA Company, A-1 Amar Singh Rajput was found to be the active subscriber of the said mobile SIM No.8959261322 of IDEA Company. Thereafter, vide Exhibit P-32, dated 30.7.2015, the S.H.O., Balco Nagar requested the Tahsildar, Korba for conducting identification proceeding in respect of seized gold ring, which was conducted vide Exhibit P-2 on the same day by the Naib Tahsildar, Korba in presence of PW-6 Deepak Dharmani, son of the deceased, and other witnesses as well and in the said identification proceeding, PW-6 Deepak Dharmani

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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identified the seized gold ring to be that of his father, deceased Lakshman Das Dharmani. Thereafter, on 7.10.2015, evidence of Santosh Kumar Pathak, S.H.O., Police Station Balco Nagar, was recorded in respect of absconding accused A-4 Vinod Chouhan and A-5 Mukesh Chouhan and on the basis of which, learned Chief Judicial Magistrate, Korba by its order passed on 7.10.2015 itself, declared A-4 Vinod Chouhan and A-5 Mukesh Chouhan absconding and arrest warrant was directed to be issued against them.

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4 . Subsequently, on completion of the investigation, charge-sheet was filed against A-1 Amar Singh Rajput, A-2 Baby Singh Rajput and A-3 Arun Mourya before the Chief Judicial Magistrate, Korba who took cognizance on the charge-sheet and the case being exclusively triable by the Sessions Court was committed to the court of Sessions for trial. The three appellants herein appeared before the Trial Court where charges were framed against them under Sections 120B, 302/34, 201/34 & 404/34 of IPC to which they denied and claimed to be tried.

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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5 . During the course of trial, in order to prove its case, the prosecution examined as many as 21 witnesses as PW-1 to PW-21 and exhibited 39 documents vide Exhibits P-1 to P-39. Articles A-1 to A-11 are the photographs of the place from where the dead-body of deceased was fished out from chuhiya nala , Article A-13C is the copy of the register of Prakash Lodge, Korba where the deceased had stayed prior to the incident. After closure of the prosecution evidence, s tatement of the accused appellants was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, statement of Smt. Ratna Dharmani, wife of the deceased; statement of Deepak Dharmani, son of the deceased and photocopy of Rojnamcha Sanha, which are Exhibits D-1, D-2 and D-3C respectively, have been relied on.

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6 . After conclusion of the trial, the Trial Court, on appreciation of oral and documentary evidence on record, by impugned judgment dated 4.4.2017 found A-1 Amar Singh Rajput, A-2 Baby Singh Rajput and A-3 Arun Mourya guilty of the offence punishable

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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under Sections 120B, 302/34, 201/34 & 404/34 of IPC and accordingly convicted and sentenced them in the manner as mentioned at the table shown above in paragraph-2 of this judgment, which led to filing of the present three criminal appeals separately by A-1 Amar Singh Rajput, A-2 Baby Singh Rajput and A-3 Arun Mourya.

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7 . Ms. Indira Tripathi, learned counsel appearing for A-1 Amar Singh Rajput and A-2 Baby Singh Rajput, would submit that the Trial Court is absolutely unjustified in holding that the dead-body of deceased Lakshman Das Dharmani was recovered from the place at the instance of A-1 Amar Singh Rajput, as it was the police and the divers, PW-2 Ravi Kumar and PW-21 Ratiram Manjhi, as well as the informer all were already aware of the place where the dead-body of deceased Lakshman Das Dharmani was recovered. She would further submit that from the statement of Investigating Officer, PW-12 Santosh Kumar Pathak, also it is quite vivid that the place where the deadbody of deceased Lakshman Das Dharmani was found

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was already known to a number of persons and therefore it cannot be held that the dead-body was

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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recovered pursuant to the place indicated by A-1 Amar Singh Rajput in consequence to the information given while recording his memorandum statement, in light of the decision of the Supreme Court rendered in

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the matter of Ravishankar Tandon v. State of Chhattisgarh1 . She would further submit that the finding recorded by the Trial Court that A-2 Baby Singh Rajput (wife of A-1 Amar Singh Rajput) and deceased Lakshman Das Dharmani had talked on phone before the incident had taken place is also of not much relevance in view of the fact that it nowhere indicates that conspiracy was hatched, particularly when no certificate under Section 65B of the Indian Evidence Act, 1872 (Evidence Act, in short) has been brought on record. Therefore, the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence as held by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 2 are not at all established and therefore A-1 Amar Singh Rajput and A-2 Baby Singh Rajput both are entitled to be acquitted on the basis of benefit of doubt.

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1 2024 SCC Online 526

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2 (1984) 4 SCC 116

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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8 . Mr. Ashutosh Pandey, learned counsel appearing for A-3 Arun Mourya, would submit that A-3 Arun Mourya has been convicted only on the basis of memorandum statement (Exhibit P-13). However, the memorandum witness, PW-18 Kartik Ram Yadav has turned hostile and the other memorandum witness PW-14 Saroj Chouhan has also not fully supported the case of the prosecution. Further, as per the statement made by diver PW-2 Ravi Kumar in paragraphs 1, 2, 5, 7, 11 & 12 of his statement, the place where the dead-body was lying was already known to the police. As such, A-3 Arun Mourya is also entitled to be acquitted on the basis of benefit of doubt.

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9 . Mr. H.A.P.S. Bhatiya, learned Panel Lawyer appearing for Respondent/State, would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond reasonable doubt and the conviction of the three appellants herein is well merited and absolutely justified on the basis of evidence available on record, as the dead-body of deceased Lakshman Das Dharmani was recovered pursuant to the memorandum statement of A-1 Amar

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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Singh Rajput in which he has also implicated A-2 Baby Singh Rajput, A-3 Arun Mourya as well as the two absconding co-accused, A-4 Vinod Chouhan and A-5 Mukesh Chouhan, who all hatched a criminal conspiracy for committing murder of deceased Lakshman Das Dharmani on account of out of marriage relationship that A-2 Baby Singh Rajput (wife of A-1 Amar Singh Rajput) had with the deceased which is clearly established and therefore the three appellants herein do not deserve to be acquitted even on the basis of benefit of doubt and thus prayed for the appeals to be dismissed.

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10. We have heard learned counsel for parties, considered their rival submissions made herein-above and also perused the records carefully and thoroughly.

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11. The primary question, as to whether the death of deceased Lakshman Das Dharmani was homicidal in nature, has been answered by the Trial Court in affirmative relying upon the statement of PW-8 Dr. C.N. Dey, who has conducted the post-mortem examination (Exhibit P-8) of the deceased, and other prosecution witnesses as well, which, in our considered opinion, is correct finding of fact based on

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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evidence available on record and which is neither perverse nor contrary to the record. Even otherwise the finding of the nature of death of the deceased Lakshman Das Dharmani being homicidal in nature has not been seriously questioned on behalf of the appellants. We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Lakshman Das Dharmani was homicidal in nature.

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12. As is apparent from the evidence available on record, the present case is not based on direct evidence rather it is a case based on the circumstantial evidence. Hence, it would be appropriate to notice herein the decision rendered by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 3 in which the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence have been catalogued in paragraph-153 which reads as under:-

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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:-

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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3 (1984) 4 SCC 116

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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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, where the following observations were made:

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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.

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(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,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(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

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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the act must have been done by the accused. ”

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13. Now, so far as the conviction of three appellants herein for the alleged offence is concerned, learned Trial Court has convicted A-1 Amar Singh Rajput mainly on the basis of his memorandum statements pursuant to which, dead-body of deceased Lakshman Das Dharmani alleged to have been recovered including cash amount of Rs.37,500/- along with a gold ring and a Honda Activa scooty as well. As regards A-2 Baby Singh Rajput, wife of A-1 Amar Singh Rajput, she has been convicted by learned Trial Court on the ground that she had conspired along with the other co-accused persons and with an intention to commit murder of deceased Lakshman Das Dharmani and in furtherance of their common intention she had called the deceased to her home as per the CDRs received vide Exhibits P-19, 22 & 23 and as per the recovery of mobile phone of IDEA Company bearing SIM No.8959261322 from her possession from which she alleged to have called the deceased on the date of incident during the relevant period of time and thus she actively participated in

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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the alleged offence as per the memorandum statements of A-1 Amar Singh Rajput. Similarly, the conviction of A-3 Arun Mourya is made by learned Trial Court only on the basis of memorandum statement of A-1 Amar Singh Rajput.

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14. Now, we will consider the correctness of the finding of learned Trial Court in convicting the three appellants and decide the same one by one herein under:-

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:Conviction of A-1 Amar Singh Rajput

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15. Learned Trial Court has prominently formed the basis of conviction of A-1 Amar Singh Rajput on the ground that pursuant to the memorandum statement of A-1 Amar Singh Rajput, dead-body of deceased Lakshman Das Dharmani was recovered from chuhiya nala from the place which A-1 Amar Singh Rajput had informed where the dead-body was hidden. However, it is well settled that for bringing the case under Section 27 of the Evidence Act, it will be necessary for the prosecution to establish that based on the information given by the accused while in police custody, it had led to the discovery of the fact which was distinctly within the knowledge of the maker of the said statement. It is only so much of the information as

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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relates distinctly to the fact thereby discovered would be admissible. The Supreme Court in the matter of Ravishankar Tandon (supra) has clearly held that the prosecution has to establish that in case of recovery of dead-body, nobody had the knowledge about the existence of the dead-body at the place from where it was recovered and their Lordships have held in paragraph-14 as under:-

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“14. We will have to therefore examine as to whether the prosecution has proved beyond reasonable doubt that the recovery of the dead body was on the basis of the information given by the accused persons in the statement recorded under Section 27 of the Evidence Act. The prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered. ”

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16. Reverting to the facts of the present case, it is quite vivid that in the instant case the missing persons report was lodged by PW-1 Ravi Lalwani on 9.7.2015 vide Exhibit P-1. The first memorandum statement of A-1 Amar Singh Rajput was recorded vide Exhibit P-15 on 11.7.2015 at 8:40 am at Police Station Darri, according to which, A-1 Amar Singh Rajput and other co-accused persons had submerged the dead-body of

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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the deceased in chuhiya nala filled with knee-deep water and put some stones on it so that it could not float to the surface. Thereafter, dead-body recovery panchnama (Exhibit P-17) was prepared on the same day at 11:00 am and the dead-body was fished out by fishermen/divers PW-2 Ravi Kumar and PW-21 Ratiram Manjhi along with 2-3 other divers from the place which was informed allegedly by A-1 Amar Singh Rajput. Subsequently, on the same day, i.e., on 11.7.2015, at 4:40 pm, another memorandum statement of A-1 Amar Singh Rajput was recorded vide Exhibit P-13A at Police Station Balco Nagar, pursuant to which a Honda Activa scooty, bearing Registration No.CG12-AA/3733 as well as cash amount of Rs.37500/- and a gold ring were allegedly recovered vide Exhibits P-10 & P-11 respectively. After that, vide Exhibit P-25, merg intimation under Section 174 of CrPC was recorded at 8:10 pm on the same day, on being informed by PW-20 Santosh Kumar Pathak, Station House Officer, Police Station Balco Nagar that pursuant to the memorandum statement of A-1 Amar Singh Rajput, dead-body of the deceased was fished out and brought to the ground with the

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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help of fishermen/divers from knee-deep water of chuhiya nala beside the road, as per the place shown by A-1 Amar Singh Rajput. However, one of the divers, PW-2 Ravi Kumar has stated in his statement that when he reached the spot, the police personnel were already present there and one of the accused was also

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there and PW-3 Sandeep Pandey, the Police Constable, informed him that the dead-body was underneath the stones, which was to be fished out and, at the instance of police personnel, he had fished out the dead-body from water. The said witness (PW2) had refuted the leading question put forth on behalf of the prosecution that the dead-body was recovered from the place informed by A-1 Amar Singh Rajput and had maintained his version that the dead-body was brought out from the water from the place which was informed by the police. PW-3 Sandeep Pandey, the Police Constable, who was also present at the spot to assist the divers in getting the dead-body out from chuhiya nala , has also stated that he was informed by PW-20 Santosh Kumar Pathak, the Station House Officer, Police Station Balco Nagar about a dead-body lying there in chuhiya nala and on his instructions he

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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had gone there along with 4-5 divers. This witness (PW-3) has clearly maintained his version that PW-20 Santosh Kumar Pathak had informed him about a dead-body lying in chuhiya nala . In paragraph-4 of his cross-examination, PW-3 Sandeep Pandey has stated that the dead-body was recovered from the place informed by A-1 Amar Singh Rajput. In paragraph-15 of his cross-examination, he has stated that he had recorded his departure in General Diary at 7-7:30 am for chuhiya nala and had reached chuhiya nala along with the fishermen/divers between 8-8:30 am. PW-21 Ratiram Manjhi, the another diver, who was also present at the spot, has clearly stated that two years prior to recording of his statement before the Court, police had come and took him on police vehicle to chuhiya nala where he was directed by the police to fish out a dead-body from the waist-deep water and the accused and the police personnel had directed him and other fishermen to fish out dead-body from the water. However, in paragraph-5 of his crossexamination, PW-21 Ratiram Manjhi has candidly admitted that the police personnel already knew that there was a dead-body in chuhiya nala and the dead-

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¶137

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶138

body was fished out from the place which was informed by the police personnel. PW-20 Santosh Kumar Pathak, Station House Officer, Police Station Balco Nagar has stated that on 11.7.2015 on the instructions of his senior officials, he had departed for Police Station Darri and his departure was recorded in Rojnamcha Sanha at 7:40 am and he had reached Police Station Darri at 8:15 am. Similarly, PW-12 S.S. Rajput, Station In-charge, Police Station Darri has stated that as per the entry made in Rojnamcha Sanja he had reached the place of incident at 6:45 am on 11.7.2015.

¶139

17. As such, from the statement of the aforesaid witnesses, it is quite clear that prior to reaching of A-1 Amar Singh Rajput at the place where the dead-body was found, police party were already aware of the said place and had already reached the spot where the dead-body was concealed. The prosecution has failed to establish that the information of the place where the dead-body was found was actually given by A-1 Amar Singh Rajput. Thus, from the evidence available on record, it is quite established that the police personnel already knew the place where the dead-

¶140

Page 26 of 53

¶141

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶142

body of the deceased was recovered and, in that view of the matter, we are of the considered view that the prosecution has failed to prove that the recovery of dead-body of the deceased was in fact made at the instance of A-1 Amar Singh Rajput.

¶143

18. Apart from that, as regards the alleged recovery of articles thereby pursuant to the memorandum statement of A-1 Amar Singh Rajput (Exhibit P-13A), a Honda Activa scooty, bearing Registration No.CG12AA/3733 as well as cash amount of Rs.37500/- and a gold ring were allegedly recovered vide Exhibits P-10 & P-11 respectively, the two memorandum and seizure witnesses in the instant case i.e., PW-10 Rajesh Kumar Kushwaha and PW-13 Ramavtar Sahu both have turned hostile and not supported the case of the prosecution. There were significant contradictions in the testimonies of these two witnesses both in respect of recovery of dead-body as well as seizure of the alleged articles pursuant to the memorandum statement of A-1 Amar Singh Rajput and therefore in absence of corroborative piece of evidence in material particulars, it would be difficult to connect A-1 Amar Singh Rajput with the instant

¶144

Page 27 of 53

¶145

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶146

crime. Accordingly, in our considered view, the conviction of A-1 Amar Singh Rajput for the alleged offence deserves to be set-aside and he is entitled to be acquitted on the ground of benefit of doubt and it is accordingly held so.

¶147

:Conviction of A-2 Baby Singh Rajput

¶148

19. Now, so far as conviction of A-2 Baby Singh Rajput is concerned, learned Trial Court has also based her conviction primarily on the ground that pursuant to the memorandum statement of A-2 Baby Singh Rajput (Exhibit P-14), a mobile phone bearing SIM No. 8959261322 was recovered vide seizure memo Exhibit P-12 and that as per CDR (Exhibits P-20 & 22) received from the Cyber Cell, Korba in respect of mobile no. 8959261322 of which A-1 Amar Singh Rajput, husband of A-2 Baby Singh Rajput, was an active subscriber as per customer profile (Exhibit P-24) as well as from the CDR received in respect of deceased mobile no. 9893279728 vide Exhibit P-23, it was found that on the date of incident at the relevant point of time A-2 Baby Singh Rajput had talked with the deceased on his mobile phone and called him to her home where in furtherance of their criminal

¶149

Page 28 of 53

¶150

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶151

conspiracy of committing murder of the deceased, she along with other co-accused persons killed the deceased and thereafter concealed his dead-body in chuhiya nala to cause disappearance of the evidence of his murder as per the memorandum statements of A-1 Amar Singh Rajput.

¶152

20. Though the above-stated CDRs have been relied upon by learned Trial Court as a piece of incriminating circumstance, but no certificate under Section 65B of the Evidence Act has been brought on record. In order to assail the above-stated finding holding it to be a piece of incriminating circumstance, it has been contended on behalf of A-2 Baby Singh Rajput that since it is not supported by certificate under Section 65B(4) of the Evidence Act, it is inadmissible in evidence and as such no reliance can be placed upon it and learned Trial Court went wrong in accepting it as a piece of incriminating evidence.

¶153

21. The Supreme Court in the matter of Arjun Panditrao

¶154

Khotkar v. Kailash Kushanrao Gorantyal 4 in which

¶155

their Lordships, resolving the dispute and the conflict raised in the matters of Shafhi Mohammad v. State

¶156

4 (2021) 7 SCC 1

¶157

Page 29 of 53

¶158

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶159

of Himachal Pradesh 5 and Anvar P.V. v. P.K.

¶160

Basheer 6, have clearly held that production of certificate under Section 65B of the Evidence Act is mandatory only in case of secondary evidence where primary evidence is not laid or original is not produced. Their Lordships further held that the certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence by way of electronic evidence as laid down in Anvar P.V. (supra) and incorrectly clarified in Shafhi Mohammad (supra). It was held as under: -

¶161

“61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor⁷ , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence

¶162

5 (2018) 2 SCC 801

¶163

6 (2014) 10 SCC 473

¶164

7 (1875) LR 1 Ch D 426

¶165

Page 30 of 53

¶166

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶167

is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.”

¶168

Their Lordships also held that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. The reference was answered in paragraphs 73.1., 73.2. and 73.3. as under: -

¶169

“73.1. Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno⁸ , being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (supra) and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.⁹ , do not lay down the law correctly and are therefore overruled.

¶170

73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by

¶171

8 Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54 9 (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704

¶172

Page 31 of 53

¶173

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶174

stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as “… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act …” is thus clarified; it is to be read without the words “ under Section 62 of the Evidence Act, …”. With this clarification, the law stated in para 24 of Anvar P.V. (supra) does not need to be revisited.

¶175

73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.”

¶176

22. In the matter of Ravinder Singh @ Kaku v. State of

¶177

Punjab 10, their Lordships of the Supreme Court while

¶178

10 2022 LiveLaw (SC) 461

¶179

Page 32 of 53

¶180

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶181

following the decision of Arjun Panditrao Khotkar (supra) have held that oral evidence in the place of certificate cannot be possibly suffice as Section 65B(4) is a mandatory requirement of law. Their Lordships held that Section 65B(4) is a mandatory requirement of law and observed as under:-

¶182

“21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. ”

¶183

23. Returning to the facts of the present case in light of the aforesaid pronouncements of the Supreme Court in Arjun Panditrao Khotkar (supra) and Ravinder Singh @ Kaku (supra), though CDRs in respect of mobile no. 8959261322 and the deceased’s mobile no. 9893279728 have been brought on record and sought to be proved by PW-16 Durgesh Kumar who was posted as Head Constable No.177 at Cyber Cell, korba, but in view of the fact that Section 65B(4) of the Evidence Act is a mandatory requirement of law

¶184

Page 33 of 53

¶185

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶186

and in absence of certificate under the aforesaid provision, call details cannot be said to be proved in absence of required certificate. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence but the objection is that they were marked before the Trial Court without a certificate as required by Section 65B(4) of the Evidence Act and also there is no Nodal Officer of the concerned telecom company has been examined to prove the alleged CDRs. Since in the instant case the prosecution has failed to produce mandatory certificate under Section 65B(4) of the Evidence Act, reliance placed by learned Trial Court on the aforesaid CDRs is of no use to the prosecution.

¶187

24. The prosecution has relied upon the aforesaid CDRs for establishing the conspiracy between the accused persons. Section 10 of the Evidence Act speaks about the things said or done by conspirator in its reference to common design which is extracted herein below:

¶188

“Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after

¶189

Page 34 of 53

¶190

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶191

the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

¶192

25. As per the memorandum statements of A-1 Amar Singh Rajput (Exhibits P-13A & P-15), his wife A-2 Baby Singh Rajput was previously working in a shop where the deceased Lakshman Das Dharmani had shared his mobile number with his wife and took her mobile number and since then the deceased used to call her for sexual favours and on the date of incident, 8.7.2015, at about 8:00 pm when A-1 Amar Singh Rajput was consuming alcohol along with A-3 Arun Mourya and his two cousins A-4 Vinod Chouhan and A-5 Mukesh Chouhan, the two absconding coaccused persons, the deceased made a phone call to his wife A-2 Baby Singh Rajput on which he asked her to call the deceased to their home where all of them caused death of the deceased and thereafter concealed his dead-body in chuhiya nala .

¶193

26. The prosecution has tried to connect the link that on the date of incident during the relevant period of time,

¶194

Page 35 of 53

¶195

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶196

there was a telephonic conversation between the deceased Lakshman Das Dharmani and A-2 Baby Singh Rajput who called the deceased to her home and thereafter the deceased was killed by the accused persons which points towards their guilt. The CDRs corroborates the evidence that A-2 Baby Singh Rajput was in contact with the deceased on the date of incident. From her possession, mobile phone bearing SIM No. 8959261322 was also recovered. Learned Trial Court has considered CDRs as the connecting link to prove conspiracy between the accused persons by shifting the burden upon the defence that they have not produced any document regarding the fact A-2 Baby Singh Rajput had not called the deceased during the relevant period of time from mobile no. 8959261322 of which A-1 Amar Singh Rajput was an active subscriber.

¶197

27. From A-2 Baby Singh Rajput, except from the alleged seizure of mobile phone bearing SIM No.8959261322, nothing has been recovered. The prosecution has failed to extract any material against A-2 Baby Singh Rajput that on the date of incident the mobile phone, which has been allegedly seized from her

¶198

Page 36 of 53

¶199

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶200

memorandum statement, was actually in possession of her. The two memorandum and seizure witnesses in the instant case i.e., PW-10 Rajesh Kumar Kushwaha and PW-13 Ramavtar Sahu both have turned hostile and not supported the recovery of mobile phone, bearing SIM No. 8959261322, pursuant to the memorandum statement of A-2 Baby Singh Rajput. Though the prosecution tried to prove that at the time of incident there was a conversation from mobile no.8959261322 of which her husband A- 1 Amar Singh Rajput was an active subscriber to the mobile no.9893279728 of the deceased, but it cannot be established that the conversation was made between A-2 Baby Singh Rajput and the deceased Lakshman Das Dharmani. The prosecution has to prove that there was a conversation which actually took place between A-2 Baby Singh Rajput and the deceased. Merely presuming the conversation from the mobile phone alleged to have recovered pursuant to the memorandum statement of A-2 Baby Singh Rajput cannot be sufficient to hold that it was she who was engaged in conversation with the deceased during the relevant period. One can presume that

¶201

Page 37 of 53

¶202

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶203

mobile phone is using by a person in whose name the same has been issued by the service provider, but when the evidence came on record that at the relevant point of time the mobile phone was in possession of some other person, then it is the burden upon the prosecution to prove that the person against whom the allegation has been levelled, was engaged in conversation from that mobile phone with the victim.

¶204

28. The Supreme Court in the matter of Kiriti Pal Vs.

¶205

State of West Bengal11 , considered the issue of admissibility and relevancy of telephonic conversation made between the persons as evidence and observed in paragraphs 30 to 33 as under:-

¶206

“30. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 (Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence

2015 (11) SCC 178

11

Page 38 of 53

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶211

was adduced by the prosecution to establish the conspiracy.

¶212

31. Apart from telephonic conversation, prosecution also relied upon recoveries made pursuant to the confessional statement of the appellants 2 and 3 (Siddique Mia and Mustaque Mia). Pursuant to the statement of Siddique Mia one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and nokia mobile handset (phone No.9932345230) were seized under Ext.17/3. Pursuant to the statement of Mustaque Mia nokia mobile handset having connection No. 9932705533, one gold finger ring in the shape of a flower with inscription of letter ‘Anjali’, and silver made chain with one Amethist and red coral fitted with it were seized under Ext. 18/3. Recoveries made and seizure list were sought to be proved by examination of PW17-Uttam Mondal. PW17 had deposed that he knew deceased Anjali. PW17 was then employed in the hotel run by Bhagyadhar Dhibar which was owned by Anjali. In his evidence PW17 stated that in January 2009, two or three gentlemen came to his hotel and took his signature and that he did not know why his signatures were being taken. Though PW17 identified his signatures in the seizure list, evidence of PW17 no way establishes recoveries being made at the instance of the accused 2 and 3. Evidence of PW17 is far from convincing and is not of much assistance to the prosecution as he has not clearly spoken about the recoveries and the seizure list. The gold ring and silver made chain recovered were also not shown to the other witnesses for being identified as that of Anjali. No other evidence was adduced by the prosecution to substantiate the recovery of objects and the seizure list.

¶213

32. So far as the complicity of fourth accused-Durga Sutradhar, the prosecution

¶214

Page 39 of 53

¶215

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶216

mainly relied upon the call record and judicial confession of Durga recorded by Judicial Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution relied upon the recovery a notebook seized from the possession of appellant Durga Sutradhar where she has written Kiriti’s phone number clandestinely coded as ‘Dadu’. Ext. 30 call records of Kiriti Pal phone also revealed that there were number of calls from Kiriti Pal to fourth appellant. Like in the case of appellants No. 2 and 3 (Siddique Mia and Mustaque Mia) apart from telephone calls, no other evidence was adduced by the prosecution to bring home the guilt of fourth accused-Durga Sutradhar. Insofar as the judicial confessional statement recorded under Section 164 Cr.P.C., it is not an inculpatory statement; but it is only to the effect of showing the subsequent conduct of A-1 Kiriti Pal in threatening Durga Sutradhar– fourth appellant not to disclose anything to the police. In our view, neither the telephone calls between the first appellantKiriti Pal and Durga Sutradhar-fourth appellant nor her confessional statement by themselves would be sufficient to establish the guilt of fourth appellant.

¶217

33. In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must

¶218

Page 40 of 53

¶219

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶220

meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside. ”

¶221

29. Thus, in view of the principles of law laid down by their Lordships of the Supreme Court in Kiriti Pal (supra), the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. The prosecution is required to prove each and every circumstance beyond reasonable doubt to complete the chain of circumstance to bring home the guilt of the accused persons. In a case of circumstantial evidence, it is for the prosecution to establish that all the links in the chain of circumstances are complete leading inescapably to the only hypothesis of the guilt of the accused leaving out any possibility of

¶222

Page 41 of 53

¶223

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶224

innocence. Suspicion howsoever strong cannot take

¶225

place of proof.

¶226

30. In that view of the matter, we are of the considered view that the evidence adduced by the prosecution against A-2 Baby Singh Rajput do not form a complete chain connecting her with the crime and therefore her conviction for the alleged offence cannot be sustained and she also deserves to be acquitted on the basis of benefit of doubt and it is held so.

¶227

:- Conviction of A-3 Arun Mourya

¶228

31. Lastly, so far as the conviction of A-3 Arun Mourya is concerned, he has been convicted only the basis of memorandum statement of A-1 Amar Singh Rajput which the Trial Court has accepted and used against

¶229

him by virtue of Section 30 of the Evidence Act.

¶230

Evidentiary value of memorandum statement

¶231

32. Now, the question would be, whether the Trial Court is justified in using the memorandum statement of the A-1 Amar Singh Rajput against A-3 Arun Mourya with the aid of Section 30 of the Evidence Act which reads as under:-

¶232

“30. Consideration of proved confession affecting person making it

¶233

Page 42 of 53

¶234

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶235

and others jointly under trial for same offence .— When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

¶236

Explanation .—“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence. ”

¶237

33. A careful perusal of the aforesaid provision of law would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another

¶238

person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one

¶239

Page 43 of 53

¶240

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶241

accused against another accused only if the following two conditions are fulfilled:-

¶242

“1. The co-accused should have been charged in the same case along with the confessor.

¶243

2. He should have been tried together with the confessor in the same trial. ”

¶244

34. Section 30 of the Evidence Act came up for consideration before the Constitution Bench of the Supreme Court in Haricharan Kurmi v. State of Bihar 12 in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In the said case, their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under:-

¶245

“11. …The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into

¶246

12 AIR 1964 SC 1184

¶247

Page 44 of 53

¶248

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶249

consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in S. 30 is not evidence under S. 3 of the Act. ...

¶250

12. …It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of coaccused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of

¶251

Page 45 of 53

¶252

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶253

the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC 257) has been cited with approval.

¶254

16. …As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.”

¶255

35. The principles of law laid down in Haricharan Kurmi (supra) have been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel v. State

¶256

of Gujarat & Anr.13 . It has also been held by their Lordships that confession of an accused person is not

¶257

13 AIR 2019 SC 3363

¶258

Page 46 of 53

¶259

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶260

evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence ( see Kashmira Singh v. State of Madhya Pradesh¹⁴ , Nathu v. State of Uttar Pradesh¹⁵ and Govt. of NCT of Delhi v. Jaspal Singh¹⁶ .)

¶261

36. In the matter of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence17 , their Lordships of the Supreme Court have summarised the law relating to scope of Section 30 of the Evidence Act and have observed as under:

¶262

“11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar (supra) wherein it was observed: (Haricharan case (supra), AIR p.1188, para 12)

¶263

“ 12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence

14 AIR 1952 SC 159

15 AIR 1956 SC 56

16 (2003) 10 SCC 586

17 (2018) 8 SCC 271

Page 47 of 53

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

¶270

appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty (ILR 1911 38 Cal 559 at p.588) a confession can only be used to “lend assurance to other evidence against a co-accused”. In Periaswami Moopan , In re (1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p.77) Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

¶271

‘… where there is evidence against the coaccused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence’.

¶272

In Bhuboni Sahu v. R . (1949 SCC OnLine PC 12 : 1948-49 76 IA 147 at p.155) the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC)

¶273

‘… a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. It is a much weaker

¶274

Page 48 of 53

¶275

(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence’.

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It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30.

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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The same view has been expressed by this Court in Kashmira Singh v. State of M.P. (supra) where the decision of the Privy Council in Bhuboni Sahu case (supra) has been cited with approval. ”

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12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.[For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704: 1999 SCC (Cri) 691] ”

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37. Coming to the facts of the present case, in the light of Section 30 of the Evidence Act and as interpreted by the Constitution Bench in the matter of Haricharan Kurmi (supra), confession of an accused person is not a substantive piece of evidence and it cannot be made the foundation of a conviction and can only be used in support of other evidence. It is the confessional/ memorandum statement made by A-1 Amar Singh Rajput on the basis of which A-3 Arun Mourya has been convicted for the alleged offence. Even if the said confessional statement is taken to be true and voluntary, the question would be whether such confessional statement must be considered in view of Section 30 of the Evidence Act. Thus, in light of the principles of law laid down by their Lordships of the

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Page 50 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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Supreme Court in the matters of Haricharan Kurmi (supra), Dipakbhai Jagdishchandra Patel (supra) and Surinder Kumar Khanna (supra) and considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of a co-accused is a very weak piece of evidence and unless other circumstantial evidence or ocular evidence is available, conviction cannot be rested only on the confessional statement of coaccused with the aid of Section 30 of the Evidence Act, as it requires corroboration from other evidence as well either ocular or circumstantial. In the instant case, the Trial Court has held A-3 Arun Mourya guilty of the aforesaid offences merely on the basis of memorandum statement made by Amar Singh Rajput. No other evidence, ocular or circumstantial, has been established on record to hold him guilty except the memorandum statement of A-1 Amar Singh Rajput whereas the memorandum statement of co-accused has to be used only as a corroborative piece of evidence. Even otherwise, the recovery of motorcycle pursuant to the memorandum statement of A-3 Arun Mourya also does not in any manner connect him

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Page 51 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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with the instant crime. Thus, we are of the considered opinion that the Trial Court is absolutely unjustified in convicting A-3 Arun Mourya with the aid of Section 30 of the Evidence Act relying upon the memorandum statement of A-1 Amar Singh Rajput.

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Conclusion:-

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38. Thus, from the overall consideration of the evidence which have come on record, it would reveal that there are a lot of broken links in the prosecution case which does not complete the chain of circumstances for conclusively reaching to the finding of guilt so as to implicate the appellants in the instant crime. In view of all the infirmities in the prosecution case and in absence of complete chain of events, it would be difficult to uphold the conviction of the appellants herein only on the basis of circumstantial evidence which have come on record. It is settled principles of law that prosecution has burden to prove its case beyond reasonable doubt and where two views are possible, arising on the basis of the same evidence, the view which is favoruable to the accused should be taken into consideration and the accused should be given benefit of doubt.

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Page 52 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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39. Accordingly, in view of the aforesaid discussion of evidence and also in light of the principles of law down by the Supreme Court in the above-referred decisions, we are of the considered opinion that there are various components which are missing from the chain of circumstantial evidence. Therefore, by giving the benefit of doubt to the appellants herein i.e. A-1 Amar Singh Rajput, A-2 Baby Singh Rajput and A-3 Arun Mourya, their conviction for the offence punishable under Sections 120B, 302/34, 201/34, 404/34 of IPC is set aside and they are acquitted of the said charges on the basis of benefit of doubt.

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40. A-1 Amar Singh Rajput is reported to be in jail since 12.7.2015. He is directed to be released forthwith, if his detention is not required in any other case.

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41. A-2 Baby Singh Rajput and A-3 Arun Mourya both are already on bail granted by this Court on 26.10.2018. They need not surrender. However, their bail-bonds shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of CrPC.

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Page 53 of 53

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(Cr. A. Nos. 262 of 2018, 1557 of 2017 & 786 of 2018)

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42. We make it clear that none of the observations made

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in this Judgment shall have any bearing on the merits of the case of the two absconding co-accused persons

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in the instant case.

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43. In the result, all the three appeals are allowed with aforesaid observation.