Horo Surin And Ors. Vs State of Bihar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (DB) No. 331 of 1999 (R)

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( Against the Judgment of conviction and order of sentence dated 06.09.1999 passed by learned First Additional Sessions Judge, Chaibasa, in Sessions Trial No. 244 of 1996 and Sessions Trial No. 157 of 1997.)

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Horo Surin, son of Jonko Surin (34 years).

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Soma Surin, son of Turi Surin (24 years).

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Jonko Surin, son of Duka Surin (35 years).

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All are resident of Village Sonapi, P.S. Gua, District-Singhbhum (West).

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… … Appellant

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Versus

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The State of Bihar (now Jharkhand) … … Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Ms. Amrita Sinha, Amicus Curiae For the Resp.-State : Mr. Bhola Nath Ojha, APP

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C.A.V./Reserved on 20^th June, 2025 Pronounced on 01 /07 /2025

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Per Sujit Narayan Prasad, J.:

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The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the Judgment of conviction and order of sentence dated 06.09.1999 passed by learned First Additional Sessions Judge, Chaibasa, in Sessions Trial No. 244 of 1996 and Sessions Trial No. 157 of 1997, whereby and whereunder, the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/34 of IPC as also rigorous imprisonment for life under Section 364/34 of IPC. The appellants have further been sentenced to undergo rigorous imprisonment for five years under Section 201/34 of IPC. All the sentences have been directed to run concurrently.

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The appellant nos.1 and 3 have been directed to pay fine of Rs. 2,000/- under the aforesaid sections and in default of payment of fine, they have to further undergo rigorous imprisonment for two years. However, no fine has been imposed upon the appellant no.2.

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Factual Matrix

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Both the sessions cases have arisen out of one and the same occurrence in connection with Gua P.S. Case no. 10 of 1996 corresponding G.R. Case No. 74 of 1996 and as such, both the trials were amalgamated and the accused persons of both the trials were charged together on 11.6.1998.

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The prosecution story in brief as per the allegation made in the fardbeyan by the informant, Sukurmoni Deogam (P.W.-4) on 20.02.1996, read as under:

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The informant has stated that on 12.02.1996, at 12:30 hours her husband Lakshman Deogam aged about 40 years (deceased) proceeded from his house wearing pant, shirt and Jacket of Indian red colour (Kathai colour) and green cap, for Manoharpur Block for obtaining Caste Certificate in the name of his son Rajaram Deogam for getting him admitted in the residential school at Chhota Nagara, asking the informant that he would come back on Wednesday next. Her husband did not come back at the house on Wednesday, then the informant started making search of him. She made enquiry from her co-villagers and the residents of the vicinity but she did not get any clue of the whereabouts of her husband. Then, she went to the village of her father at Tetlighat and she asked her uncle Lebeya Sidu to make enquiry of the whereabouts of her husband. Aforesaid Lebeya Sidu after enquiry, informed her on 19.02.1996 that on 12.02.1996 at 02:00 p.m. the residents of village Sonapi for some reason or the other had caught hold

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of her husband at the hillock near Sonapi on the way from Chhota Nagara to Manoharpur and they had taken him to Jungle side for committing his murder. Lebeya Sidu gave further information to the informant that the residents of village Sonapi had also taken Ghasiram Sidu of Tetlighat along with her husband who also did not return home. Lebeya Sidu further disclosed to her that Sukhram Munda of village Sonapi and others had hands in the aforesaid occurrence of abduction of Lakshman Deogam and Ghasiram Sidu. Then she narrated everything to Munda (P.W.3) of her village who also started making further enquiry in connection with the aforesaid occurrence. She had no information as to whether her husband had any enmity with the residents of village Sonapi. She believed that Sukhram Munda and others had abducted her husband for committing his murder.

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On investigation, the police concluded the investigation and submitted the Chargesheet no. 11 of 1996 dated 21.05.1996 against the 6 accused persons namely 1. Sukhram Munda 2. Hori Surin 3. Pandu Surin 4. Soma Surin 5. Pandu Balmuchu and 6. Behra Balmuchu and kept the investigation continued against the rest suspects.

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Subsequently, Surdan Sarika @ Surdhan Bading, on arrest, was produced before the Chief Judicial Magistrate on 27.05.1996 and he was remanded to custody. Supplementary Chargesheet bearing no. 41 of 1996 dated 18.08.1996 was submitted against Surdhan Sarika @ Sudhran Bading. Accordingly, cognizance was taken against him and his case was committed to the Court of Sessions. On receipt of record, Sessions Trial no. 3/97 was registered. Subsequently, Jonko Surin on arrest was remanded to custody on 03.02.1997. Supplementary Chargesheet no.7 of 1997 dated 28.02.1997 was

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submitted under sections 302/201/34 of the I.P.C. The learned S.D.J.M. Sadar Chaibasa committed the case of the aforesaid accused person in custody namely, Jonko Surin to the court of Sessions. On receipt of the commitment record Sessions Case no. 157 of 1997 was registered.

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Both the sessions cases were transferred to the court of 4^th Additional Sessions Judge, eventually, both the sessions cases were transferred to the Sessions Court and were heard analogous after amalgamating the cases together.

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Accordingly, the trial proceeded and the appellants were found guilty by the learned trial court for the offence under Section 302/34 and 364/34 of IPC as also under Section 201/34 of IPC and have been sentenced to undergo rigorous imprisonment for life under Section 302/34 of IPC as also rigorous imprisonment for life under Section 364/34 of IPC. The appellants have further been sentenced to undergo rigorous imprisonment for five years under Section 201/34 of IPC. All the sentences have been directed to run concurrently.

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The appellant nos.1 and 3 have been directed to pay fine of Rs. 2,000/- under the aforesaid sections and in default of payment of fine, they have to further undergo rigorous imprisonment for two years. However, no fine has been imposed upon the appellant no.2.

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The aforesaid judgment of conviction and sentence is under challenge herein.

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Submission of the learned counsel for the Appellants:

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Learned counsel for the appellants has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgment:

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(i) The conviction is based upon the confession made by the co-accused person, namely, Sukhram Munda on whose confession, two dead bodies have been recovered. It has been contended that the confession of an accused-person cannot be used against another co-accused persons.

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(ii) The conviction of these appellants has also been made on the basis of last seen of alleged abduction of the deceased but the said abduction of deceased was said to be on 12.02.1996 while for about seven days, no missing report was there and only on 20.02.1996 the FIR was instituted for commission of alleged offence under Section 364 of IPC and subsequently, Section 302 has also been added.

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(iii) There is inordinate delay in instituting the First Information Report and no sufficient explanation has been offered for the same.

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The learned counsel for the appellants, based upon the aforesaid grounds, has submitted that the learned trial court has not taken into consideration the aforesaid facts, as such, the impugned judgment requires interference, hence not sustainable in the eyes of law.

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Submission of learned counsel for the Respondent-State:

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While defending the judgment of conviction and sentence, the learned Additional Public Prosecutor appearing for the State has raised the following arguments in response to the grounds raised by the learned counsel for the appellant that:

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(I) It has been submitted that the abduction of Ghasiram Siddu from near his house has been seen by his father, namely, Patar Sindu but the said Patar Sindu had died, as such, no evidence was brought on record on the point of his abduction but P.W.-5 has seen the deceased Lakshman Deogam being abducted although no eye witnesses is there to prove the offence committed under Section 302 and 201 of IPC but on the basis of circumstantial evidence brought on record, offence under Section 302 and 201 has been found to be proved along with Section 364 of IPC.

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(II) It is argued that the trial court has considered and elaborately discussed the material evidence in its correct perspective and the judgment of conviction and order of sentence is based on the evidence marshalled out during the trial and it does not require any interference by this Court.

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(III) So far as the delay in institution of FIR is concerned, argument has bene advanced that the deceased informed his wife on Monday, i.e., on 12.02.1996 that he will return till Wednesday, as such, she waited till Wednesday and when the deceased did not come back, she went for his search and in course thereof, she found that her husband has been abducted by the aforesaid accused persons, therefore, the delay in institution of the FIR has been caused, hence, the same cannot be a ground for disproving the prosecution case.

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The learned Additional Public Prosecutor appearing for the respondentState, based upon the aforesaid premise, has submitted that the impugned

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judgment does not suffer from any error, hence the instant appeals are fit to be dismissed.

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Analysis

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We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.

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We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits appended therewith.

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Learned trial court, based upon the testimonies of witnesses, has passed the judgment of conviction and has convicted the appellants and sentenced to undergo rigorous imprisonment for life under Section 302/34 of IPC as also rigorous imprisonment for life under Section 364/34 of IPC. The appellants have further been sentenced to undergo rigorous imprisonment for five years under Section 201/34 of IPC. All the sentences have been directed to run concurrently.

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The appellant nos.1 and 3 have been directed to pay fine of Rs. 2,000/- under the aforesaid sections and in default of payment of fine, they have to further undergo rigorous imprisonment for two years. However, no fine has been imposed upon the appellant no.2.

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This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimonies of witnesses which have been recorded by learned trial Court. The learned trial court during the trial has altogether examined seven witnesses and testimony of the same is required to referred herein.

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P.W.1, Dr. Shiv Shankar Birua was posted at Sadar Hospital at Chaibasa as C.A.S. On 26.02.1996 the dead bodies of 2 deceased namely Lakshman Deogam aged about 40 years and Ghasiram Sidu aged about 42 years were brought, identified by constable Ram Jiwan Ram. He performed postmortem examination on the dead body of Lakshman Deogam at 10.45 a.m. on 26.02.1996 and he found the following:-

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i. The whole body of Lakshman Deogam was found decomposed, Dead body was swollen. The whole body including the cloth of dead body of Lakshman Deogam had particles of sand. The dead body was emitting foul smell and skin was black.

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ii. Skin and muscle of chest and buttock had been nibbed away.

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iii. Maggots were found crawling over the body.

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iv. Eyes and mouth were closed. Muscle of both hands were nibbed away.

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On dissection of head and neck no abnormality was detected. On dissection of chest 8 stabs wounds few inches apart were found on left side of chest size of each being 1/2''x 1/2'' entering into the chest cavity. He also found 2 stab wounds on right side of chest being 1/2''x 1/2" entering into the chest cavity. Clotted blood was found inside the chest cavity. On dissection of abdomen, stomach was found empty. Urinary bladder was also empty. Cause of death due to multiple stab injuries resulting in haemorrhage and shock. The injuries were caused by sharp penetrating weapon. Injuries were sufficient to cause death in ordinary course of nature. Time elapsed since death within 3 weeks from the time of postmortem examination. If the body after death is kept in watery sands process of decomposition starts late. In such case process of decomposition starts normally after 72 hours of death

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and process of decomposition may take to one month or two months’ time to complete.

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On cross-examination he stated that he was not knowing and identifying the deceased from before. Both the dead bodies were completely decomposed. Weapon of assault was not produced before him. He ascertained the size of injury on measurement.

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P.W.2. Gangadhar Gope has stated in para 3 that on 25.02.1996 Sukhram Munda in presence of S.I. of police had confessed that he would show the dead body of Lakshman Deogam and Ghasiram Siddu which were buried. The S.I. of Police had brought Sukhram Munda at village Sonapi. He and Natho Tatera (P.W.7) and other villagers were also with them. He stated in para 6 that Sukhram Munda had led the S.I. of Police in the field which was situated at a distance of 250 yards from the house of Horo Surin and Pandu Surin. He along with Natho Tatera and other villagers were also there. He stated in para 5 that Sukhram Munda pointed out the place stating that dead body of Ghasiram Siddu was buried there by the side of ridge of the field. Sukhram Munda himself took out the dead body of Glhasiram Siddu by means of Spade being buried under the earth 3 to 3½ ft deep. He stated in para 6 that he identified the dead body of Ghasiram Siddu. The mother of accused Horo Surin was also there. She also identified the dead body. The dead body was brought on the truck. He further stated that in his presence Sukhram Munda disclosed before the S.I. of Police (P.W.6) that he had buried the dead body of Lakshman Deogam under the sand by the side of river of his field. Sukhram Munda led the S.I. of Police at the banks of Surako river at village Sonapi. In his presence and also in presence of Natho

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Tatera, Sukhram Munda by removing 3 to 3½ ft deep sand got recovered the dead body. He identified the dead body which belonged to Lakshman Deogam. The other persons present there also identified the dead body. He stated in para 7 that S.I. of Police had prepared the inquest in carbon process on the place from where from the dead body of Lakshman Deogam was recovered and he put his signature (Ext.2/1) on the inquest. He has also identified his signature (Ext.2) on the inquest of dead body of Ghasiram Siddu. He has identified Sukhram Munda in dock.

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P.W.3, Lakshman Deogam who is a village Munda has stated that two and half years before in the morning of Tuesday, Sukurmoni on coming to his house, informed that her husband had gone to Manoharpur on the Preceding Monday for obtaining Caste Certificate for the admission of his son Rajaram in a school but her husband did not come back of his house. She further informed him that she was searching her husband. On the aforesaid information he along with other villagers also started making search of deceased Lakshman Deogam. On the next Monday he informed the S.I. of police that Lakshman Deogam (deceased) was not being traced out. The S. I. of Police came in the village on Tuesday. He stated in para 2 that the S.I. of police visited the house of deceased, Lakshman Deogam. He has also gone there. The S.I. of police recorded the fardbeyan of Sukurmoni who gave her statement on fardbeyan in Ho' language. He interpreted the statement of Sukurmoni from 'Ho' to Hindi and then the S.I. of police recorded the statement of Sukurmoni and then he got explained the contents of the statement of Sukurmoni in 'Ho' language. Sukurmoni, found the statement correct and gave her L.T.I. thereon. He also put his signature on the fardbeyan of Sukurmoni as a witness. P.W.-2, Gangadhar Gope who is

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resident of village Chhota Nagara was a Surpanch of Chhota Nagara Panchayat. On 12.02.1996 he was sitting in the verandah of his house by the side of the road. At about 3 p.m. on 12.02.1996 he found Lakshman (Deceased) and Gaju Honhaga (P.W.5) going on the road taking he-buffalo with them. He asked Gaju Honhaga as to from where he has brought, heBuffalo, then he informed him that he had brought he-buffalo from Chintamoni Munda of village Baihatu and he was taking the he-buffalo at his house. Then both proceeded ahead. He stated in para 8 that Chintamoni Munda also subsequently informed him that he had given he-Buffalow to Gaju Honhaga.

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P.W.4, Sukurmoni Deogam who is the wife of deceased Lakshman Deogam and the informant of this case has stated that on Monday at mid-day her husband Lakshman Deogam proceeded from his house for Manoharpur for obtaining Caste Certificate in the name of his son Rajaram for the purpose of his admission in a school. Her husband did not come back in the house. Then she started searching her husband. She gave information to Lakshman Deogam (P.W.3). In course of search of her husband she went to village Tetlighat on Thursday. Lebeya Siddu (not examined) of village Tetlighat asked her not to make further search of her husband and not to weep for him since the villagers of Sonapi had committed the murder of her husband. He further informed her that Sukhram Munda of village Sonapi (accused) caught hold of her husband on the way and he tied him and brought him at his village. He further informed her that Sukhram Munda has also brought Ghasiram Sidu (deceased) from near his house at village Sonapi. She stated in para 2 that she narrated everything to village Munda, Lakshman Deogam (P.W.3) on the next Tuesday. The S.I. of police came in

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her village. She gave statement (Farabeyan) in 'Ho' language before the police officer. The persons present there explained the contents to her in Hindi. The man who has interpreted her statement from 'Ho’ language to Hindi also read over the contents of her statement and then she put her L.T.I. thereon. She has identified the accused in dock. The S.I. of Police also read over the contents of her statement to her. She has given information to village Munda (P.W.3) on the third day, the day of Thursday. The S.I. of police recorded her statement after one week of giving information to village Munda that her husband did not come back to his house. On the 3^rd or 4^th day of the departure of her husband from his house for Manoharpur, she met Lebeya Siddu at the house of her father.

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P.W.5, Gaju Honhaga has stated in para 1 that on 12.02.1996 at 2 p.m. he had taken he-Buffalo from Chintamoni Munda of village Baihatu and he was taking he-buffalo at his house. On the way to his village home, he met Lakshman Deogam (deceased). He also met Gangadhar Gope (P.W.2) on the way to his house. He further stated that he met deceased, Lakshman Deogam on the way to his house in village Chhota Nagara. Aforesaid Lakshman Deogam (deceased) was going to village Maraponga. On meeting with him Lakshman Deogam proceeded ahead in his company. He further stated that when he along with Lakshman Deogam (deceased) arrived on road in village Sonapi, Sukhram Munda and Horo Surin (accused persons) and 3 unknown persons arrived there. Sukhram Munda asked him to proceed ahead with heBuffalo and Sukhram Munda, Horo Surin and 3 unknown caught hold of Lakshman Deogam (deceased) and he on seeing Lakshman Deogam in the custody of aforesaid 5 persons he proceeded taking his he-Buffalo with him. He has identified Sukhram Munda and Horo Surin in dock. He has also

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identified Jonka Surin, Pandu Balmuchu and Soma Surin on seeing them from face and has stated that the aforesaid 3 persons had come near him along with Sukhram and Horo Surin.

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He stated in cross-examination in para 3 that on the way to his house he met none except Lakshman Deogam (deceased). On cross-examination he further stated that he has been seeing the three accused persons whom he had identified in the dock by seeing their face from his childhood. Since those persons used to visit his village but he was not knowing the names of those 3 persons. He further stated on cross-examination that in his presence the accused persons had caught hold of Lakshaman Deogam. He further stated that all the 5 accused persons had appeared on the scene but only Sukhram Munda has caught hold of Lakshman Deogam.

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P.W.-6, Yogendra Das was posted as Officer-in-charge of Gua P.S. On 20.02.1996 at 10 a.m. he heard rumour at Gua Bazar that Lakshman Deogam who has gone to Manoharpur on Mondayon 12.02.1996 did not come back at his house. Probably his murder was committed. He made Station Diary Entry of the aforesaid information vide Station Diary Entry no. 348 dated 20.02.1996. He proceeded from police station for village Jojogutu along with A.S.I., Arjun Sharma, Constable Kailash Ram and members of Armed forces on Jeep. He arrived at village Jojobatu on 12.30 hours. He met Sukurmoni Deogam. Lakshman Deogam (P.W.3) was also there. He recorded the fardbeyan of Sukurmoni Deogam. She has given her statement in Ho language. Munda Lakshman Deogam (P.W.3) interpreted her statement from 'Ho' to Hindi. Then he recorded the statement of Sukurmoni Deogam. Lakshman Deogam (P.W.3) explained the contents of the

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fardbeyan to Sukurmoni Deogam in 'Ho' language and then Sukurmoni found the contents correct and gave her L.T.I. thereon and Lakshman Deogam (P.W.3) put his signature as a witness. The fardbeyan recorded by him is Ext. 3. He recorded the statement of Lakshman Deogam (P.W.3), Rajaram Ram Deogam, Mangal Deogam, Lebeya Surin, Ghasiram Deogam and Kuso Surin.

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At 2.30 p.m. he proceeded from Jojogutu and came at village Chhota Nagara at 3 p.m.. He recorded the statement of Surpanch, Gangadhar Gope (P.W.2). Then he came in the village Ponga at 4 p.m. He recorded the statement of Ganju Honhaga (P.W.5). He took Ganju Honhaga with him and went on muddy road in village Sonapi. He inspected the 1^st place of occurrence (from where Lakshman Deogam was abducted). The 1^st place of occurrence is a Rasta in village Sonapi which has started from Chhota Nagara leading towards Manoharpur. He found Jamun and Mahuwa trees in southern side of the way. He also found trees in the northern side of the way. That place was a lonely place. Then he came at village Sonapi. He made search of Sukhram Munda and Horo Surin but they were not traced out. From village Sonapi he went to village Tetlighat and recorded the statement of Patar Sindu (Para 21 of case diary). He inspected the second place of occurrence in village Tetlighat which was a muddy road. The aforesaid place (from where Ghasiram Sidu was abducted) was situated at the distance of 100 Metres from the house of Patar Sindu. In the West side of 2^nd place of occurrence there was hillock and forest and each side of 2^nd place of occurrence there is house of Patar Sindu. In the northern side of P.O. there was forest and hillock and southern side of the 2^nd P.O. there was a house of Lebeya Sidu.

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He made search of Roya Champia and Lebeya Sidu but they were not traced out. He also searched Koi Siddu and Janam Siddu but they were also not traced out. He proceeded from village Tetlighat and came back at police station at 8 p.m. He had brought the fardbeyan with him at the police station. At 9 a.m., he instituted the case after drawing up formal F.I.R. (Ext.4) which is written and signed by him. In the next morning, he sent the F.I.R to the Court.

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On 21.2.96 he came in the village Tetlighat at 9.30 p.m. He searched Roya Champia and Lebeya Siddu (accused persons) but they were not traced out. He also made search of Koi Siddu and Janam Siddu but they were also not found. He came to village Sonapi. He made search of Sukhram Munda and Horo Surin (accused) but they were also not traced out. He recorded statement on fardbeyan on 21.02.1996 at village Jojogutu.

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P.W.6 has stated in para 7 that on 25.02.1996 he arrested Sukhram Munda on the way from Chiria to Manoharpur. He brought him at village Chhota Nagara. He recorded his confessional statement. He confessed before him that on receiving information from Dursu (Durso) Bading and Surdhan Karika (Surdan Karika) @ Surdha Bading, he caught hold of Lakshman Deogam on the way with the help of Horo Surin, Pandu Surin and Soma Surin and brought him at village Sonapi and on 13.02.1996 he caught hold of Ghasiram Sidu from his house and brought him at Sonapi and with the help of co-accused Roya Champia, Lebeya Siddu, Horo Surin, Pandu Surin and Soma Surin committed the murder of aforesaid two persons on 14.02.1996 at village Sonapi and with the help of co-accused namely Horo

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Surin, Soma Surin, Budhu Bading, Machu Bading, Ram Bading, Ghasiram Siddu and Jonko Surin concealed the dead body of Lakshman Deogam under the sand in Ponga Nalia and concealed the dead body of Ghasiram Siddu by burying his dead body in the field which was situated in the West of the house of co-accused Horo Surin.

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P.W.6 further stated in para 8 that he brought Sukhram Munda in the field of Horo Surin at village Sonapi. In presence of Gangadhar Gope (P.W.2) and Natho Tatera (P.W.7), Sukhram Munda pointed out the place from where the dead body of Ghasiram Siddu was recovered. He inspected the dead body of Ghasiram Siddu and prepared the inquest report in carbon process in presence of Natho Tatera (P.W.7) and Bidhya Gope. On his dictation A.S.I. Arjun Sharma has written the inquest and he put his signature thereon and, in his presence, witnesses also signed the inquest which is Ext. 5.

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He stated in para-9 that he brought Sukhram Munda at Ponga Nala at village Sonapi. Sukhram Munda pointed out the place from where the dead body of Lakshman Deogam was recovered being buried in the heap of sand of Ponga Nala. Some portion of the dead body was inside the heap of sand some portion was visible. The dead body of Lakshman Deogam was taken out. He inspected the dead body in presence of Surpanch, Gangaghar Gope (P.W.2) and Mukhia, Natho Tatera (P.W.7). He prepared the inquest in carbon cop. On his dictation A.S. I, Arjun Sharma prepared the inquest.

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He stated in para 10 that he brought the two dead bodies in village Chhota Nagara, Patar Sindu who is the father of deceased Ghasiram has identified the dead body of his son and Sukurmoni (P.W.4) the wife of

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deceased Lakshman Deogam has identified the dead body of her husband, Lakshman Deogam. He forwarded the dead body (for post-mortem examination) through constable Jiwan Ram and A.S.I. Gopal Prasad Rajak.

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He stated in para 11 that on 01.03.1996 he arrested Horo Surin from his house at village Sonapi. He arrested Pandu Balmuchu and Behra Balmuchu on 12.03.1996 from their houses at village Jojogutu. He arrested Pandu Surin and Soma Surin at village Sonapi on 07.04.1996. He arrested Surdan Karika from his house on 25.05.1996. He arrested Lebeya Siddu from his house on 29.01.1997. He arrested Jonko Surin on 04.02.1997. On 17.02.1997 Manki has produced Roya Champia at the police station and then he was detained in custody. The confessional statement of Sukhram Munda is written and signed by him.

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In para 14 he has stated that he did not get any eye witness of the occurrence. He stated that witnesses had given statement claiming to have seen the deceased persons being taken by the accused persons. The father of Ghasiram has disclosed before him that the accused persons had taken Ghasiram.

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P.W.7, Natho Tatera was Mukhia of Chhota Nagara Panchayat from 1977 to 1996. He stated that on 25.02.1996, S.I. of police of Gua P.S. visited Panchyat Bhawan of Chhota Nagara, Panchayat. He had accompanied the S.I. of Police. He along with S.I. of Police went to village Sonapi. He further stated that at village Sonapi on being asked by the S.I. of Police, Sukhram Munda confessed that he along with his villagers committed the murder of Ghasiram Siddu and Lakshman Deogam by assaulting them by means of lathi and tangi on their abduction and buried the dead body of Ghasiram

¶126

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Siddu and also buried the dead body of Lakshman Deogam in Ponga Nala. He stated in para 2 that he along with the S.I. of the Police (P.W.6), Surpanch, Gangadharpur Gope (P.W.2) and accused Sukhram Munda went to the field. On going to the field, Sukhram Munda pointed out the place in the field from where the dead body was found buried. The dead body was taken out. That dead body was of Ghasiram Siddu. The S.I. of Police visited the dead body and prepared the inquest over which he put his signature (Ext. 2/2).

¶130

He stated in para 3 that Sukhram Munda had taken them at Ponga Nala at village Sonapi. He pointed out the place in Ponga Nala where the dead body was buried in the heap of sand. The dead body was taken out. The dead body was of Lakshman Deogam. The S. I. of police inspected the dead body and prepared the inquest. He put his signature (Ext.2/3) thereon. He has identified accused Sukhram Munda in dock. He stated in pra 5 that Patar Siddu had died on 18.07.1999. He stated on cross-examination that when he visited the house of Sukhram Munda along with S.I. of police he has found Sukhram Munda by the side of his house. The S.I. of police had called him and interrogated him.

¶131

At this juncture, it would be apt to reiterate the contention of the parties. Learned counsel for the appellants has argued that the trial court has committed manifest error in not appreciating the fact that the conviction is based upon the confession made by the co-accused person, namely, Sukhram Munda on whose confession, two dead bodies have been recovered and the same cannot be used against another co-accused persons. The ground of delay in instituting the FIR has also been taken that there is inordinate delay

¶132

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in instituting the First Information Report and no sufficient explanation has been offered for the same

¶136

On the aforesaid grounds it is emphatically contended that the impugned judgment is not sustainable in law or on facts and deserves to be set aside.

¶137

Per contra , learned APP has contended that just because the FIR has been lodged after delay, the same cannot be a ground for disproving the prosecution case.

¶138

Learned Additional Public Prosecutor has also submitted that although there is no eye witness of the commission of crime of murder but the P.W.-5 has seen the accused persons abducting the deceased Lakshman Deogam which itself creates doubt to believe the commission of crime of murder as also much emphasis has been given that on the confession of Sukhram Munda, co-accused, the dead body of Lakshman Deogam and Ghasiram Siddu were recovered.

¶139

In the backdrop of the aforesaid factual aspect, this Court in the instant case is to consider following issues: -

¶140

(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302/34 or under section 364/34 of the Indian Penal Code? or

¶141

(ii) Whether the identification of the appellants in the dock for the first time by one of the prosecution witnesses i.e. P.W.5, that too, after nearly 3 years from the date of occurrence can be relied upon without any other corroborative evidence?

¶142

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(iii) Whether the confession of one co-accused based upon which the dead body of victim has been recovered can be used as sole evidence against the present appellants in order to convict them for the alleged offence

¶146

(iv) Whether the appellant is entitled for acquittal in absence of cogent evidences?

¶147

Before appreciating the said issues, it would be apt to mention herein the admitted facts of the instant case, which are as follows:

¶148

(i) The alleged offence is in two parts. First part is related with the offence of kidnapping and second part is related to the murder of kidnapped deceased.

¶149

(ii) P.W.5 is the eyewitness of 1^st part of the alleged crime and for the 2^nd part of the offence there is no direct evidence is available on record against the present appellants.

¶150

(iii) Admittedly the complicity of the present appellants in the alleged crime has surfaced in the instant case on the basis of the confessional statement of the co-accused namely Sukhram Munda.

¶151

(iv) The dead bodies of deceased have been recovered on the basis of the confessional statement of the co-accused namely Sukhram Munda.

¶152

(v) The present appellants have been identified on the dock by the P.W.5 during course of trial.

¶153

(vi) P.W.5 has categorically admitted that he had already seen the aforesaid appellant/accused persons in his village since childhood,

¶154

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therefore he was acquainted with them but he had no idea about the name of the present appellants.

¶158

Before embarking upon the legal issue, we may notice the definition of kidnapping and abduction, as contained in Sections 359 and 362 of the Penal Code which are in the following terms:

¶159

“359. Kidnapping.—Kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship.

¶160

362. Abduction.—Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.”

¶161

This Court deems fit and proper to refer herein the ingredients of Section 364 of the IPC. For ready reference the Section 364 of the IPC is being quoted as under:

¶162

364. Kidnapping or abducting in order to murder .—Whoever kidnaps

¶163

or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with³⁶⁴ [ imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

¶164

The Hon’ble Apex Court in the case of Badshah v. State of U.P. , (2008) 3

¶165

SCC 681 while appreciating the ingredients of Section 364 has observed that the intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped, for ready reference the relevant paragraph is being quoted as under:

¶166

“13. Ingredients of the said offence are (1) kidnapping by the accused must be proved; (2) it must also be proved that he was kidnapped in order to; (a) that such person may be murdered; or (b) that such person might be disposed of as to be put in danger of being murdered.

¶167

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The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped.”

¶171

Thus, from perusal of the aforesaid Section it is evident that the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder, satisfies the requirements of Section 364 of the Penal Code.

¶172

Further in order to appreciate the element of kidnapping it would be apt to discuss difference between the provisions of Section 361 read with Sections 363, 364 and 364-AIPC ought to be compared. The said provisions read as under:

¶173

“ 361. Kidnapping from lawful guardianship .—Whoever takes or

¶174

entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

¶175

Explanation .—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

¶176

Exception .—This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

¶177

363. Punishment for kidnapping .—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

¶178

364-A. Kidnapping for ransom, etc .—Whoever kidnaps or abducts

¶179

any person or keeps a person in detention after such kidnapping or

¶180

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abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”

¶184

Thus, it is evident that Section 363 punishes the act of kidnapping and Section 364 thereof punishes the offence of kidnapping or abduction of a person in order to murder him. Section 364-A further adds to the gravity of the offence by involving an instance of coercive violence or substantial threat thereof, to make a demand for ransom. Accordingly, the maximum punishment for the three crimes is seven years' imprisonment; ten years' imprisonment and imprisonment for life or death, respectively.

¶185

Thus, in order to establish the offence punishable under Section 364 of the IPC, it must be proved that the person charged with the offence had the requisite intention at the time of abduction, that the person so abducted would be murdered or would be disposed of as to be put in danger of being murdered. Even if after the abduction, the accused person placed the abducted person in danger of being murdered, that would also not establish the charge of abduction punishable under Section 364 of the IPC. The intention at the time of abduction is relevant. Further, in a case under Section 364 of the IPC, the motive is of great importance and if there is absence of any motive, it would be difficult to maintain the conviction under Section 364 of the IPC.

¶186

In the backdrop of the aforesaid factual aspect and settled legal position this Court are now adverting to the merit of the case.

¶187

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In this case the allegation is that the deceased was abducted by these appellants and another person. Thus, to come within the definition of “abduction” and to establish the case of the prosecution, the prosecution has to prove that there was application of force, which compelled the deceased to move from one place to another, or by any deceitful means and by some inducement he was compelled to move from one place to another or under some compulsion he was forced to move from one place to another.

¶191

We do not find any material from the oral evidence led by the prosecution that there was any deceitful mean or inducement by these appellants, which forced or compelled the deceased to move from one place to another. Further, we do not find from evidence of witnesses that any force was applied by these appellants, which forced the deceased to move from one place to another.

¶192

The material in this case is that the P.W.4 informant and wife of the deceased had stated that Lebeya Siddu (not examined) of village Tetlighat had informed her that Sukhram Munda of village Sonapi (co-accused) caught hold of her husband on the way and he tied him and brought him at his village. He further informed her that Sukhram Munda has also brought Ghasiram Sidu (deceased) from near his house at village Sonapi.

¶193

Thus, even from the testimony of the informant, complicity of the present appellants has not been established, since this witness has categorically stated that Lebeya Siddu (not examined) of village Tetlighat had informed her that Sukhram Munda of village Sonapi (co-accused) caught hold of her husband on the way and he tied him and brought him at his village.

¶194

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The only material evidence against these appellants have been narrated by P.W.5, Gaju Honhaga in his testimony wherein he had stated that on 12.02.1996 at 2 p.m. on the way to his village home, he met Lakshman Deogam (deceased). He further stated that he met deceased, Lakshman Deogam on the way to his house in village Chhota Nagara and Lakshman Deogam (deceased) was going to village Maraponga. On meeting with him Lakshman Deogam proceeded ahead in his company. He further stated that when he along with Lakshman Deogam (deceased) arrived on road in village Sonapi, Sukhram Munda and Horo Surin (accused persons) and 3 unknown persons arrived there. Sukhram Munda asked him to proceed ahead with heBuffalo and Sukhram Munda, Horo Surin and 3 unknown caught hold of Lakshman Deogam (deceased) and he on seeing Lakshman Deogam in the custody of aforesaid 5 persons he proceeded taking his he-Buffalo with him. He has identified Sukhram Munda and Horo Surin in dock. He has also identified Jonka Surin, Pandu Balmuchu and Soma Surin on seeing them in dock from face and has stated that the aforesaid 3 persons had come near him along with Sukhram and Horo Surin.

¶198

He stated in cross-examination in para 3 that on the way to his house he met none except Lakshman Deogam (deceased). On cross-examination he further stated that he has been seeing the three accused persons whom he had identified in the dock by seeing their face from his childhood. Since those persons used to visit his village but he was not knowing the names of those 3 persons. He further stated on cross-examination that in his presence the accused persons had caught hold of Lakshaman Deogam. He further stated that all the 5 accused persons had appeared on the scene but only Sukhram Munda has caught hold of Lakshman Deogam.

¶199

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As per the testimony P.W.5 it is evident that he is the only prosecution witness who had claimed himself that lastly, he had seen the deceased with the company of the present appellants and at that time Sukhram Munda was also present there. This witness had further stated that the accused persons had caught hold of Lakshaman Deogam but at the same time in the cross examination he had stated that all the accused persons had appeared on the scene but only Sukhram Munda has caught hold of Lakshman Deogam (deceased). The aforesaid statement amounts to major contradiction. Even for the time being if it is presumed that present appellants have been seen along with the deceased by this witness, then question arises herein that why this witness had not stated this fact to informant i.e. wife of deceased or even to the village Munda. It is evident from record that only after discovery of the dead body of the deceased, the theory of last seen has come from the mouth of this witness.

¶203

Thus, on the basis of the aforesaid fact it is difficult for this Court to accept this fact that deceased was last seen with the present appellants. Further the statement of P.W.5 has not been substantiated or fully corroborated by the other prosecution witnesses.

¶204

It needs to refer herein that it has been stated by P.W.5 that he had seen the present appellants with the deceased on 12.02.1996 but the dead body of the deceased was recovered on 20.2.1996 on the basis of the alleged confessional statement of the Sukhram Munda, therefore even in the such scenario the proximity of time is the vital factor in order to prove the charges against these appellants beyond reasonable doubt.

¶205

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It requires to refer herein that the law on the last-seen-together evidence is well-settled. In a catena of judgments, the Hon’ble Supreme Court has held that once it is proved that the deceased was seen lastly in the company of the accused and immediately thereafter the dead body is recovered, the law presumes that it was the accused who has committed the crime, but this piece of evidence requires corroboration. There are of course exceptions to this theory and there may be circumstances under which on the basis of the last-seen-together evidence conviction of an accused cannot be recorded; one of such circumstances is the time-gap between the last-seen-together and recovery of the dead body. In the case of Navaneethakrishnan v. State reported in (2018) 16 SCC 161 , the Hon’ble Supreme Court has observed which reads as under:

¶209

“22. …… It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration.”

¶210

Further it needs to refer herein that P.W.5 identified the accused persons

¶211

first time in the dock and had stated that he has been seeing the accused persons whom he had identified by seeing their face from his childhood, since those persons used to visit his village.

¶212

It requires to refer herein that the Hon'ble Supreme Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India , (2011) 2 SCC 490 has observed that dock identification or photo identification though is admissible evidence, cannot be given credence without further corroborative evidence.

¶213

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Though some of the witnesses identified some of the accused in the dock, without corroborative evidence dock identification alone cannot be treated as substantial evidence, though it is permissible .

¶217

Similarly in the case of Girdhari v. State (NCT of Delhi) , (2011) 15 SCC 373, the Hon’ble Apex Court has observed that this identification was made for the first time in court during the recording of the evidence therefore this statement, has very little evidentiary value, for ready reference the relevant paragraph is being quoted as under:

¶218

“14. We therefore, find that out of the five witnesses of last seen only PW 4 has to some extent identified the appellant as being one of the culprits. This identification was made for the first time in court during the recording of the evidence. This statement, therefore, has very little evidentiary value. We are, therefore, of the opinion that this evidence does not by itself inspire confidence.—"

¶219

Though, the Hon'ble Supreme Court has held that dock identification is admissible in evidence but without any corroborative evidence, dock identification alone cannot be treated as substantial evidence. As already discussed, apart from the identification of the appellant in the dock for the first time by the P.W.5, there is no other corroborative or cogent evidence against the appellants. As such the factum of identification of the appellant in the dock by the informant that too after lapse of considerable period of time cannot be the sole basis for their conviction.

¶220

Further it needs to refer herein that on perusal of the entire record nowhere it has come that what was the motive behind the alleged occurrence. However, this Court is conscious with the fact that motive may not be of much significance in a case based on direct evidence but herein the instant case particularly the 2^nd part of alleged occurrence i.e. murder of the deceased is

¶221

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based upon the circumstantial evidence as there is no direct evidence is available on the record save and except the confessional statement of the coaccused namely Sukhram Munda.

¶225

In the case of Surinder Pal Jain v. Delhi Administration reported in 1993 Supp (3) SCC 681 , the Hon’ble supreme court has held as under:

¶226

“11. …… In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.”

¶227

Moreover, motive alone cannot be the ground for conviction of an accused

¶228

for a serious offence like murder. In “Keshav v. State of

¶229

Maharashtra” (2007) 13 SCC 284 , the Hon'ble Supreme Court has observed as under:

¶230

“8. “A judgment of conviction cannot be recorded only on the basis of motive. The circumstance of last seen together becomes relevant only when the death is proved to have taken place within a short time of the accused and the deceased being last seen. (See State of Goa v. Sanjay Thakran). ---"

¶231

From perusal of the record, it is evident that no any prosecution witness had whispered about the motive behind the alleged crime and since the instant case is based upon the circumstantial evidence, as such the charges against the present appellants cannot be said to be proved beyond reasonable doubt.

¶232

Further from perusal of the testimony of the prosecution witnesses it is evident that none of the witnesses have whispered about any force being applied, which compelled the deceased to move from one place to another. Further, there is no evidence, which would advocate that by any deceiving

¶233

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means the deceased was compelled to move from one place to another. In absence of any evidence, which could suggest that force was applied or any deceiving means was adopted, basic ingredients of the definition of “abduction” as stipulated in Section 362 of the IPC is not involved and when the fundamental ingredients are not attracted, an accused cannot be convicted of offence under Section 364 of the Penal Code, 1860.

¶237

So far as the 2^nd part i.e. murder of deceased is concerned save and except the confessional statement of the co-accused Sukhram Munda nothing has come on record against the present appellants.

¶238

It requires to refer herein that the position of the accused who has given confessional statement implicating a co-accused is that he has placed himself on the same plank and thus he sinks or sails along with the co-accused on the basis of his confession. For these reasons, insofar as use of confession of an accused against a co-accused is concerned, rule of prudence cautions the judicial discretion that it cannot be relied upon unless corroborated generally by other evidence on record.

¶239

Generally, a confessional statement made by one accused cannot be used as substantive evidence against a co-accused. While a court may consider such a confession, it cannot form the sole basis for conviction. The confession can be used to lend assurance to other evidence, but it is not considered direct evidence against the co-accused.

¶240

The Hon’ble Apex Court in the case of Pancho v. State of Haryana (2011) 10 SCC 165 has observed that confession of a co-accused is not a substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidence in a criminal trial. The Hon’ble court

¶241

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further stated that the trial court cannot begin on the basis of the confession of the co-accused, rather, the courts must analyse all the evidence which are being adduced, and on being satisfied with the guilt of accused.

¶245

At this juncture it would be apt to refer herein Section 30 of the Indian Evidence Act which is being quoted as under:

¶246

30. Consideration of proved confession affecting person making it

¶247

and others jointly under trial for same offence .—When more

¶248

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.

¶249

[ Explanation .—“Offence” as used in this section, includes the abetment of, or attempt to commit, the offence.³⁹ ]

¶250

Thus, Section 30 of the Indian Evidence Act envisages that when more than one person is being tried jointly for the same offence and a confession made by one of such persons if found to affect the maker and some other of such persons and stands sufficiently proved, the court can take into consideration such confession as against such other person as well as against the person who made such confession.

¶251

The Hon’ble Apex Court in the case of Govt. of NCT of Delhi v. Jaspal Singh , (2003) 10 SCC 586 has categorically observed that no doubt, in law the confession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But it has often been reiterated that if on the basis of the consideration of other evidence on record the court is inclined to accept the other evidence, but not prepared to act on such evidence alone, the confession of a co-

¶252

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accused can be pressed into service to fortify its belief to act on it also, for ready reference the relevant Paragraph is being quoted as under:

¶256

9. The submissions on behalf of the parties on either side on either the relevance, efficacy and reliability of the confessional statements of the 1st accused or principles underlying Sections 10 and 30 of the Indian Evidence Act, 1872, next fall for consideration. No doubt, in law the confession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But it has often been reiterated that if on the basis of the consideration of other evidence on record the court is inclined to accept the other evidence, but not prepared to act on such evidence alone, the confession of a co-accused can be pressed into service to fortify its belief to act on it also. Once there are sufficient materials to reasonably believe that there was concert and connection between persons charged with a common design, it is immaterial as to whether they were strangers to each other or ignorant of the actual role of each of them or that they did not perform any one or more of such acts by joint efforts in unison. Section 30 of the Indian Evidence Act envisages that when more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect the maker and some other of such persons and stands sufficiently proved, the court can take into consideration such confession as against such other person as well as against the person who made such confession.--

¶257

The Hon’ble Apex Court in the case of Surinder Kumar Khanna v. Directorate of Revenue Intelligence , (2018) 8 SCC 271 has held which reads as under:

¶258

10. In Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] , this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] and laid down as under: (AIR p. 160, paras 8-10)

¶259

“8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and

¶260

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in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] : (SCC OnLine PC)

¶264

‘…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 cross-examination.’

¶265

Their Lordships also point out that it is

¶266

‘obviously evidence of a very weak type. … It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities’.

¶267

They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in “support of other evidence”. In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated?

¶268

9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] where he said that such a confession can only be used to “lend assurance to other evidence against a co-accused “or, to put it in another way, as Reilly, J. did in Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] : (SCC OnLine Mad)

¶269

‘…the provision goes no further than this—where there is evidence against the co-accused 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.’

¶270

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10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

¶274

11. The law laid down in Kashmira Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] wherein it was observed: (Haricharan case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] , AIR p. 1188, para 12)

¶275

“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 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 [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 [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR

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(1931) 54 Mad 75 at p. 77.] Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad)

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‘…where there is evidence against the co-accused 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.’

¶281

In Bhuboni Sahu v. R. [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)

¶282

‘… 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 cross-examination. It is a much weaker 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.’

¶283

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

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effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the decision of the Privy Council in Bhuboni Sahu case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] has been cited with approval.”

¶288

Thus, from the aforesaid settled position of law it is evident that the accused cannot be convicted on the basis of only confessional statement of coaccused as it is not substantive piece of evidence. The Hon’ble Apex Court has specifically observed that 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.

¶289

In the backdrop of the aforesaid settled legal position, we are re-adverting to the fact of the instant case. From perusal of the impugned order as well as the entire record it is apparent that save and except the confessional statement of the co-accused Sukhram Munda, nothing substantial evidence has been brought on record by the prosecution against the present appellants.

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Further the said confessional statement has not been corroborated or substantiated by the other cogent evidence. It needs to refer herein that in preceding paragraph the credibility of testimony of the P.W.5 has already been doubted by this Court and since it is considered view of this Court that offence under Section 364 has not made out against these appellants, therefore involvement of the present appellants in the alleged commission of murder of the deceased cannot be said to be established beyond reasonable doubt.

¶294

It requires to refer herein that the conviction of a person can only be made if the charge has been proved beyond shadow of all reasonable doubts and if there is any doubt in the prosecution version then the benefit must be given to the accused persons. Reference is made to the judgment Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454 , wherein, at paragraph-22, it has been held as under:-

¶295

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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¶299

Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka , reported in (2017) 13 SCC 98 , has held at paragraph-26 as under:-

¶300

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

¶301

Further, the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in

¶302

(1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under: -

¶303

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be

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afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

¶308

Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of

¶309

Karnataka (Supra) at paragraph 32 and 33 has held as under:-

¶310

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

¶311

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -

¶312

It needs to refer herein that The Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-

¶313

“6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. —"

¶314

It needs to refer herein before laying down the aforesaid view, the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as:

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“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

¶319

Further it requires to refer herein that it is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt, reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in the case of Chandmal v. State of Rajasthan , (1976) 1 SCC 621.

¶320

The circumstances of this case only create suspicion against the present appellants and suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused, thus, or paucity of any clear, cogent and unshakeable evidence against aforesaid appellants their conviction and sentence are absolutely unwarranted.

¶321

On the basis of the discussions made hereinabove, the conviction of the above-named appellants under Section 364/34 and 302/34 of the IPC does not appear to be sustainable, and is therefore set aside. As a result, appellants

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named above is acquitted of all offences and since they are on bail, therefore they are discharge from their criminal liability.

¶325

Accordingly, with the aforesaid observation the instant criminal appeal stands allowed.

¶326

Pending interlocutory application(s), if any, also stands disposed of.

¶327

Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records.

¶328

The assistance given by Ms. Amrita Sinha, learned amicus curiae in this case is appreciable. The learned Member Secretary, JHALSA is directed to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the learned Member Secretary, JHALSA, for the needful.

¶329

(Sujit Narayan Prasad, J.)

¶330

I agree,

¶331

(Rajesh Kumar, J.)

¶332

(Rajesh Kumar, J.)

¶333

High Court of Jharkhand, Ranchi Dated: 01 / 07 /2025

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Saurabh/Samarth/ A.F.R.