Chandrapal vs State of Chhattisgarh

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 378 OF 2015

CHANDRAPAL …APPELLANT(S)

VERSUS

STATE OF CHHATTISGARH …RESPONDENT(S) (EARLIER M.P.)

J U D G M E N T

BELA M. TRIVEDI, J.

1. The instant appeal is directed against the judgment and order of

conviction and sentence passed by the High Court of Chhattisgarh at

Bilaspur in Criminal Appeal No. 1812 of 1998.

2. As per the case of prosecution, the deceased Kumari Brindabai was the

daughter of Bhagirathi Kumhar who belonged to the caste Kumhar. The Signature Not Verified Digitally signed by Sanjay Kumar Date: 2022.05.27 deceased Kanhaiya Siddar was the resident of village Panjhar and 13:11:32 IST Reason:

belonged to the caste Siddar (Gaur). There was a love affair going on

1 between Kumari Brindabai and Kanhaiya Siddar, which the said

Bhagirathi and his brother Chandrapal did not approve. On 02.12.1994,

both Kumari Brinda and Kanhaiya went missing. A search was made,

however, no missing report was lodged. On 11.12.1994, at about 09:00

am, Lodhu (PW-2) went to Kajubadi (Cashew Nursery) and saw that the

dead bodies of the deceased Kumari Brinda and Kanhaiya were hanging

on a cashew tree. He therefore came back and informed the Sarpanch

Baran Singh Thakur. Their bodies were in decomposed state and were not

identifiable, however the informant Chandrapal identified the dead bodies.

Thereafter, Merg intimations were lodged by Chandrapal and Bholasingh

(PW-4) at about 16:00 hrs. and 16:05 hrs. on 11.12.1994, which were

registered at no. 67/94 and 68/94 respectively. The dead bodies were sent

for postmortem. In the postmortem report of the deceased Kumari Brinda

(Ex. P/22), conducted by Dr. R.K. Singh (PW-13), it was opined that the

ligature mark over her neck was antemortem in nature, and the cause of

death appeared to be Asphyxia due to hanging. In the postmortem report

(Ex. P/23) of the deceased Kanhaiya also, it was opined that the cause of

death appeared to be Asphyxia due to hanging. In both the postmortem

reports, it was stated that the death had occurred within 8 to 10 days and

the nature of the death was suicidal. As per the further case of the

prosecution, on 02.12.1994, the deceased Kanhaiya was sitting at the

premises of village Panchayat, where some TV programme was going on.

2 He, thereafter, left the said place and went to the hand pump for rubbing

his axe (gandasu). At that time the accused Chandrapal called Kanhaiya

and took him to his house, shut him down in the room and all the accused

i.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi in furtherance of

their common intention pressed his neck and committed his murder.

Thereafter, the accused Mangal Singh and Videshi committed the murder

of Kumari Brinda. After committing their murders, they kept the dead

bodies of Kanhaiya and Brinda in the house upto 04.12.1994 and then

took the dead bodies to Kajubadi. The accused thereafter hanged the dead

bodies of both the deceased by tying the noose in their necks with the tree

of cashew in the Kajubadi and attempted to give it the shape of their

having committed suicide.

3. The Sessions Court framed the charge against the four accused i.e.,

Bhagirathi, Chandrapal, Mangal Singh and Videshi, for the offence under

section 302, in the alternative under section 302 read with section 34 of

IPC. Each of the accused was also separately charged for the offence

under section 201 read with section 34 of IPC, as also for the offence

under section 3(2)(v) of the Schedule Caste and Schedule Tribe

(Prevention of Atrocities), Act, 1989. The prosecution to bring home the

charges levelled against the accused had examined 16 witnesses and also

adduced documentary evidence. The First Additional Sessions Judge,

3 Raipur (Chhattisgarh), after the appreciation of the evidence on record,

vide the judgement and order dated 03.08.1998, acquitted all the accused

from the charges levelled against them under section 3(2)(v) of the SC ST

Act, however, found them guilty of the offences under section 302 and

201 read with section 34 of IPC. They all were sentenced to imprisonment

for life for the offence under section 302 read with section 34 of IPC, and

were directed to undergo rigorous imprisonment for a period of two years

for the offence under section 201 read with section 34 of IPC.

4. Being aggrieved by the judgement and order passed by the Sessions

Court, the accused Bhagirathi, Chandrapal and Mangal Singh preferred an

appeal being the Criminal Appeal No. 1812 of 1998 and the accused

Videshi preferred an appeal being Criminal Appeal No. 2005 of 1998

before the High Court of Chhattisgarh at Bilaspur. The High Court vide

the impugned judgement and order, confirmed the conviction and

sentence imposed on the accused no. 2 Chandrapal for the offence under

section 302 read with section 34, and under section 201 read with section

34 of IPC and accordingly dismissed the Criminal Appeal No. 1812 of

1998 qua the said accused Chandrapal. However, the High Court set aside

the conviction and sentence imposed on the accused Bhagirathi Kumhar,

Mangal Singh and Videshi for the offence under section 302 read with

section 34 of IPC, nonetheless confirmed their conviction for the offence

4 under section 201 read with section 34 of IPC, and sentenced all of them

to the period already undergone by them. Accordingly, the Criminal

Appeal No. 1812 of 1998 and 2005 of 1998 stood partly allowed. The

present appellant-accused Chandrapal being aggrieved by the said

judgement and order passed by the High Court has preferred the present

appeal.

5. The learned counsel Mr. Akshat Shrivastava appearing for the appellant

taking the Court to the evidence of the witnesses examined by the

prosecution, more particularly of PW-2, PW-4, PW-5 and PW-6,

submitted that there were major contradictions in their evidence as regards

the alleged extra judicial confession made by the accused Videshi before

them. Relying upon various decisions of this Court, he submitted that

conviction cannot be based on the extra judicial confession made by the

co-accused, which is of a very weak kind of evidence. Repelling the

theory of ‘Last seen theory’, he submitted that the statement of PW1

Dhansingh who had allegedly last seen Kanhaiya, having been called by

the present appellant, was recorded after 4 months of the incident. Even as

per the case of the prosecution, the said incident of calling Kanhaiya by

the appellant was 10 days prior to the date on which the dead bodies were

found in the Kajubadi, and there being long time gap between the day the

deceased was allegedly last seen with the appellant and the day when his

5 dead body was found, it was very risky to convict the appellant solely on

such evidence. He further submitted that the doctor who had performed

the postmortem had also opined that the cause of death was asphyxia as a

result of hanging and the nature was suicidal. Thus, in absence of any

clear or cogent evidence against the appellant, both the courts had

committed gross error in convicting the appellant.

6. However, the learned counsel appearing for the respondent State

submitted that there being concurrent findings recorded by the Sessions

Court as well as High Court with regard to the guilt of the appellant, the

Court may not interfere with the same. While fairly agreeing that an extra

judicial confession would be a weak piece of evidence, he submitted that

there was other corroborative evidence adduced by the prosecution which

conclusively proved the entire chain of circumstances leading to the guilt

of the present appellant. According to him, after the alleged incident on

02.12.1994, till the dead bodies were recovered on 11.12.1994, nobody

had seen the deceased Brinda and Kanhaiya in the village, and therefore

the evidence of PW-1 Dhansingh who had seen Kanhaiya lastly with the

present appellant was required to be believed, as believed by the courts

below. According to him, the concerned doctor who had carried out the

postmortem had also opined that the death of the deceased could be

homicidal death also.

6

7. At the outset, it may be stated that undisputedly the entire case of the

prosecution rested on the circumstantial evidence, as there was no eye

witness to the alleged incident. The law on the appreciation of

circumstantial evidence is also well settled. The circumstances concerned

“must or should be” established and not “may be” established, as held in

Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1. The

accused “must be” and not merely “may be” guilty before a court can

convict him. The conclusions of guilt arrived at must be sure conclusions

and must not be based on vague conjectures. The entire chain of

circumstances on which the conclusion of guilt is to be drawn, should be

fully established and should not leave any reasonable ground for the

conclusion consistent with the innocence of the accused. The five golden

principles enumerated in case of Sharad Birdhichand Sarda Vs. State of

Maharashtra2 laid down in para 152 may be reproduced herein for ready

reference:

“152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973

1 (1973) 2 SCC 793 2 (1984) 4 SCC 116

7 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

8. It is also needless to reiterate that for the purpose of proving the charge for

the offence under Section 302, the prosecution must establish “homicidal

death” as a primary fact. In order to convict an accused under Section 302,

the court is required to first see as to whether the prosecution has proved

the factum of homicidal death. So far as the facts of present case are

concerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out

the post-mortem of the deceased Brinda and Kanhaiya, would be most

relevant in this regard. He had stated in his deposition before the court,

inter alia, that on 12.12.1994, he had carried out the post-mortem of

Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias

Chandrashekhar Gaur. The dead bodies of both the deceased were in

decomposed state. He had further stated that the knot mark present on the

8 neck of the deceased Brinda was ante-mortem, and that the cause of death

appeared to be Asphyxia due to hanging. The death had taken place within

8 to 10 days and the nature of death was Suicidal. The said Doctor had

stated similar facts for Kanhaiya that the dead body of Kanhaiya was

found bent towards left side from his neck and a ligature mark having size

10” x 5” was present on the neck. The cause of death appeared to be

Asphyxia due to hanging and the death appeared to have taken place

within 8 to 10 days. He had further stated that there was neither fracture

found on the dead bodies of the deceased, nor any blood clots were found,

nor any injuries were found, and therefore he had opined that the cause of

death was hanging which normally is found in case of suicide. He

specifically stated that as the dead bodies were decomposed, he could not

express any opinion whether it was a homicidal death. In the cross-

examination by the learned counsel for the accused, he had categorically

admitted that he did not find any symptom of homicidal death, nor he had

opined in his report given on 12.12.1994 that the deaths of the deceased

were homicidal. Of course, he had stated that on the basis of the report

submitted on 30.04.1995, an inference could be drawn that the deaths

could be homicidal deaths.

9. It is worth noting that the High Court in the impugned judgment has not

considered at all the evidence of Dr. R.K. Singh to come to the conclusion

9 whether the deaths were homicidal deaths, before confirming the

conviction of the appellant for the offence under Section 302 IPC.

Unfortunately, the Sessions Court also in para 23 of its judgment observed

that the statement of Dr. R.K. Singh was not important because he had

expressed an opinion which was neither beneficial to the prosecution nor

to the defence. In our opinion, when the case of the prosecution rested on

circumstantial evidence, it was imperative for the prosecution to prove

beyond reasonable doubt that the deaths of the deceased were homicidal

deaths and not suicidal, more particularly when the line of defence of the

accused was that the Brinda and Kanhaiya had committed suicide, and

when Dr. R.K. Singh who had carried out their post-mortems had also

opined that the nature of their deaths was Suicidal.

10. This takes the court to examine the incriminating evidence relied upon by

the prosecution, that is the extra judicial confession made by the co-

accused Videshi. According to the prosecution, the accused Videshi had

made self-inculpatory confession before the PW-4 Bhola Singh and also

made confession before the PW-5 Chandrashekhar, PW-6 Baran Singh

and PW-7 Dukaluram, involving the other accused including the present

appellant. The prosecution had also produced an affidavit of Videshi (Ex-

P/11) allegedly affirmed before the Notary. Though the Sessions Court

relying upon the said evidence of extra judicial confession of Videshi

10 convicted all the four accused, the High Court partly believing the said

extra judicial confession, acquitted the three accused i.e., Bhagirathi,

Mangal Singh and Videshi from the charges levelled against them under

Section 302 read with 34 of IPC, however convicted them for the offence

under Section 201 read with 34 by holding that the said accused had tried

to cause disappearance of the evidence.

11. At this juncture, it may be noted that as per Section 30 of the Evidence

Act, 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. However, this court has

consistently held that an extra judicial confession is a weak kind of

evidence and unless it inspires confidence or is fully corroborated by

some other evidence of clinching nature, ordinarily conviction for the

offence of murder should not be made only on the evidence of extra

judicial confession. As held in case of State of M.P. Through CBI & Ors.

Vs. Paltan Mallah & Ors.3, the extra judicial confession made by the co-

accused could be admitted in evidence only as a corroborative piece of

evidence. In absence of any substantive evidence against the accused, the

extra judicial confession allegedly made by the co-accused loses its 3 (2005) 3 SCC 169

11 significance and there cannot be any conviction based on such extra

judicial confession of the co-accused.

12. In Sahadevan & Anr. Vs. State of Tamil Nadu 4, it was observed in para

14 as under:

“14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.”

The said ratio was also reiterated and followed by this court in

cases of Jagroop Singh Vs. State of Punjab 5, S.K. Yusuf Vs. State of

West Bengal6 and Pancho Vs. State of Haryana7, wherein it has been

specifically laid down that the extra judicial confession is a weak evidence

by itself and it has to be examined by the court with greater care and

caution. It should be truthful and should inspire confidence. An extra

judicial confession attains greater credibility and evidentiary value if it is

supported by chain of cogent circumstances and is further corroborated by

other prosecution evidence. In the instant case it is true that the co-

accused Videshi had allegedly made self-inculpatory extra judicial 4 (2012) 6 SCC 403 5 (2012) 11 SCC 768 6 (2011) 11 SCC 754 7 (2011) 10 SCC 165

12 confession before the PW-4 Bhola Singh, and had made extra judicial

confession before the other witnesses i.e., PW-5 Chandrashekhar, PW-6

Baran Singh Thakur and PW-7 Dukaluram stating, inter alia, that the

other three accused i.e., Bhagirathi, Chandrapal and Mangal Singh had

committed the murder and he (i.e. Videshi) was asked to assist them in

disposing the dead bodies and concealing the evidence. However, the

High Court, considering the inconsistency between the said two extra

judicial confession made by the co-accused Videshi, did not find it safe to

convict the other accused i.e., Bhagirathi, Mangal Singh and Videshi

himself, and the High Court surprisingly considered the said extra judicial

confession made by Videshi as an incriminating circumstance against the

appellant Chandrapal for convicting him for the offences charged against

him. In our opinion if such weak piece of evidence of the co-accused

Videshi was not duly proved or found trustworthy for holding the other

co-accused guilty of committing murder of the deceased Brinda and

Kanhaiya, the High Court could not have used the said evidence against

the present appellant for the purpose of holding him guilty for the alleged

offence.

13. This takes the court to examine the theory of “Last seen together”

propounded by the prosecution. As per the case of prosecution, PW-1

Dhansingh had seen the accused Chandrapal calling the deceased

13 Kanhaiya and taking him inside his house on the fateful night. Apart from

the fact that the said Dhansingh had not stated about the time or date when

he had lastly seen Kanhaiya with Chandrapal, even assuming that he had

seen Chandrapal calling Kanhaiya at his house when he was sitting at the

premises of village panchayat, the said even had taken place ten days prior

to the day when the dead bodies of the deceased were found. The time gap

between the two incidents i.e., the day when Dhansingh saw Chandrapal

calling Kanhaiya at his house and the day Kanhaiya’s dead body was

found being quite big, it is difficult to connect the present appellant with

the alleged crime, more particularly when there is no other clinching and

cogent evidence produced by the prosecution.

14. In this regard it would be also relevant to regurgitate the law laid down by

this court with regard to the theory of “Last seen together”.

15. In case of Bodhraj & Ors. Vs. State of Jammu and Kashmir 8, this court

held in para 31 that:

“31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible….”

16. In Jaswant Gir Vs. State of Punjab9, this court held that in absence of any

other links in the chain of circumstantial evidence, the accused cannot be 8 (2002) 8 SCC 45 9 (2005) 12 SCC 438

14 convicted solely on the basis of “Last seen together”, even if version of

the prosecution witness in this regard is believed.

17. In Arjun Marik & Ors. Vs. State of Bihar 10, It was observed that the only

circumstance of last seen will not complete the chain of circumstances to

record the finding that it is consistent only with the hypothesis of the guilt

of the accused, and therefore no conviction on that basis alone can be

founded.

18. As stated hereinabove, in order to convict an accused under Section 302

IPC the first and foremost aspect to be proved by prosecution is the

factum of homicidal death. If the evidence of prosecution falls short of

proof of homicidal death of the deceased, and if the possibility of suicidal

death could not be ruled out, in the opinion of this court, the appellant-

accused could not have been convicted merely on the basis of the theory

of “Last seen together”.

19. Ergo, having regard to the totality of evidence on record, the court is of

the opinion that the High Court had committed gross error in convicting

the appellant-accused for the alleged charge of 302 read with 34 of IPC,

relying upon a very weak kind of evidence of extra judicial confession

allegedly made by the co-accused Videshi, and relying upon the theory of

“Last seen together” propounded by the PW-1 Dhansingh. It is also

10 1994 Supp (2) SCC 372

15 significant to note that no evidence worth the name as to how and by

whom the deceased Brinda was allegedly murdered was produced by the

prosecution. Under the circumstances, it is required to be held that the

prosecution had miserably failed to bring home the charges levelled

against the appellant-accused beyond reasonable doubt. The suspicion

howsoever strong cannot take place of proof.

20. For the reasons stated above, the appeal deserves to be allowed and is

accordingly allowed. The appellant-accused Chandrapal is acquitted from

the charges levelled against him. He is directed to be set free forthwith.

21. Office is directed to do the needful and to send the copy of the order to the

concerned jail authority at the earliest.

………………………. J.

[DHANANJAYA Y. CHANDRACHUD]

…..................................J. [BELA M. TRIVEDI] NEW DELHI;

27.05.2022

16 ITEM NO.1501 COURT NO.2 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s).378/2015

CHANDRAPAL Appellant(s) VERSUS

STATE OF CHHATTISGARH (EARLIER M.P.) Respondent(s)

Date : 27-05-2022 This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. Akshat Shrivastava, AOR Ms. Pooja Shrivastava, Adv.

For Respondent(s) Mr. Sourav Roy, Dy AG Mr. Mahesh Kumar, Adv. Mr. Kaushal Sharma, Adv. Ms. Devika Khanna, Adv. Mrs. V D Khanna, Adv. for Vmz Chambers, AOR

1 Hon’ble Ms Justice Bela M Trivedi pronounced the judgment of the Bench

comprising Hon’ble Dr Justice Dhananjaya Y Chandrachud and Her

Ladyship.

2 In terms of the signed reportable judgment, the appeal is allowed. The

appellant-accused Chandrapal is acquitted from the charges levelled

against him. He is directed to be set free forthwith.

3 Office is directed to do the needful and to send the copy of the order to

the concerned jail authority at the earliest.

4 Pending application, if any, stands disposed of.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) DEPUTY REGISTRAR COURT MASTER

(Signed reportable judgment is placed on the file)

17