Gopal Sah vs State Of Bihar

whereas Raghunath Sah was acquitted. Two appeals

were thereafter filed by the convicted accused before the

Patna High Court whereas the complainant also filed a

revision against the acquittal of Raghunath Sah. During

the pendency of the appeal in the High Court, Dasrath

Sah died. The High Court, however, upheld the trial

court judgment with respect to the three accused. Gopal

Sah accused then filed the present criminal appeal

challenging his conviction and the matter has been put

up for final hearing before us. Bhushan Sah

subsequently filed a special leave petition in this Court

as well, but it is the admitted position that this matter

has been dismissed by this Court on the ground of

limitation as well as having no merit.

2. The prosecution story is as under:

3. Gopal Prasad Gupta deceased aged about 18 years went

out of his house at about 6 p.m. on 7th June 1982 and

when he did not return till dinner time, his family

members went in search for him but he could not be

found. The search continued the next morning as well 3

though without success. At about 2 p.m. on 8th June

1982 Murtaza Khan PW22 informed the family that

Gopal Prasad Gupta's dead body was lying in a ditch

near village Chhekabadh on which PW20 Jagdish Prasad

Gupta, the uncle of the deceased lodged a FIR at about

2.30 p.m. stating, inter-alia, that at about 6 p.m. on the

7th of June 1982 the deceased had been seen with

Raghunath Sah and his son Bhushan Sah near the

wooden bridge. During the course of the investigation,

the accused were arrested and on their disclosure

statements, a blood stained axe and a sickle allegedly

used in the murder on 8th of September 1982 were

recovered from a water filled pond. The police also

conducted a raid at the houses of the four accused and

a blood stained ganji, a spade and a bucket were

recovered from the house of Bhushan Sah and

Raghunth Sah. The statement of Dasrath Sah was also

recorded under Section 164 of the Cr.P.C. by Judicial

Magistrate, B.K. Singh PW11. On the completion of the 4

investigation, the accused were charged as already

indicated above.

4. The prosecution examined 29 witnesses in all to support

the circumstances appearing against the accused, as

admittedly there was no eye witness to the murder.

PW1 Nageshwari Devi, the mother of the deceased

deposed that on the relevant day her son had been

taken away by Bhushan Sah for a walk and he had

thereafter not returned. PW3 Shivnath Sahu stated that

he had seen Gopal Sah, the present appellant, in the

orchard of Jai Narayan Sah carrying a sickle in his hand

on the date of incident. PW4 Sofil Khan and PW6

Digamber Mandal testified that they had seen

Raghunath Sah carrying a spade and a bucket in his

hand moving away hurriedly whereas PW5 Md. Nadaf

stated further that he had seen the three accused (Gopal

Sah, Dasrath Sah and Bhushan Sah) moving away in a

disturbed state of mind. PW8 Kameshwar Choudhary

too corroborated this statement and further added that

he had seen the deceased along with Bhushan Sah and 5

Dasrath Sah near the wooden bridge and a third person

whom he could not identify, was urinating close by. He

stated that man was not Gobind Gupta, a cousin of the

deceased, who too, at one time, was suspected of the

murder. PW17 Lakhan Sah further stated that he had

seen Gopal Parsad Gupta sitting near the bridge at

about sun set with Bhushan Sah and Dasrath Sah

accused. The recoveries of the axe, sickle and other

articles were sought to be proved by the evidence of PW9

Satyadeo Singh and PW12 Mohd. Arif. The prosecution

also produced in evidence PW16 Birendra Maharaj and

PW19 Jagannath Choudhary to whom Dasrath accused

had allegedly made an extra judicial confession of the

involvement of all the accused in the murder.

5. The trial court in its judgment held that the evidence of

PW1, the mother of the deceased to the effect that the

deceased had gone with Bhushan Sah on the evening of

7th June 1982 could not be relied upon in the light of the

evidence of PW21 Binod Kumar, who stated that the

deceased had gone with him on his cycle up to the water 6

tank. The trial court also refused to rely on the

confession made under section 164 of the Cr.P.C. by

Dasrath, as it had not been recorded by following the

correct procedure the more so as Dasrath Sah in the

course of the trial had alleged that it had been made by

him under coercion. The trial court then went on to

examine the other evidence. It concluded that from the

evidence of PW22 Murtuza Khan it had been established

that the dead body of the deceased clad only in a ganji

had been found near the orchard on 8th June 1982 at

about 2 p.m. The trial court relied upon the extra

judicial confession made by Dasrath Sah and on the

recovery of the sickle made at the instance of Gopal

Sah and found corroboration from the fact that he had

been seen rushing away from the place of incident. The

trial court concluded that the evidence supported the

view that Bhushan Sah and Dasrath Sah had been

seen near the bridge at about 6 p.m. on 7th June 1982

whereas one unidentified person was urinating close by

who could be Gopal Sah appellant. The Court also 7

accepted the story that Bhushan Sah and Gopal Sah

had disclosed to the police on 9th June, 1982 that they

had thrown an axe and a sickle in the pond and the axe

had been recovered on that day whereas the sickle had

been recovered three months thereafter. The High

Court in appeal upheld the judgment of the trial court

and dismissed both the appeals as well as the criminal

revision filed by the complainant. As already

mentioned, the present appeal has been filed at the

instance of Gopal Sah alone; and the special leave

petition filed by Bhushan Sah has been dismissed on

the ground of limitation as well as on merits.

6. The learned counsel for the appellant has raised several

arguments during the course of the hearing. It has been

pointed out that there was absolutely no evidence to

connect Gopal Sah with the crime, as the recovery of the

sickle made in September 1982 i.e. about three months

after the incident was too remote a factor. It has also

been pleaded that the evidence of last seen pertained

only to Bhushan Sah and Dasrath Sah accused, as the 8

third person with them near the wooden bridge had not

been identified as being Gopal Sah by any of the

witnesses. It has further been pleaded that the extra

judicial confession allegedly made by Dasrath Sah could

not be used as evidence against the other accused and

that in any case this evidence too was unbelievable.

7. The learned counsel for the respondent State has,

however, argued that the appeal of Bhushan Sah having

been dismissed on the same evidence, the present

appeal too was liable to dismissal on that basis. He

has also pointed out that the recovery of the sickle and

the statement of Dasrath Sah which was to be taken as

an extra judicial confession completed the chain of

events involving Gopal Sah in the murder.

8. We have heard the learned counsel for the parties and

gone through the record. Admittedly, there are three

main incriminating circumstances against the accused.

The first piece of evidence is the suggestion that the

third person who was urinating close by the bridge was

Gopal Sah, the second the extra judicial confession 9

made by Dasrath Sah and the third the recovery of

alleged murder weapon - a sickle. We are of the opinion

that this evidence is, to say the least, unacceptable. It

has come in the statement of PW8 Kameshwar

Choudhary that he had seen Dasrath Sah along with the

deceased near the bridge and that another person was

urinating close by. It is the suggestion and inference

that this person was Gopal Sah. We are, however, of the

opinion that there can be no conviction on inferences to

be drawn from the prosecution evidence more

particularly as there is absolutely no evidence to suggest

that the third person was indeed Gopal Sah appellant.

We find that in this situation the statement of PW5

Mohd. Nadaf that he had seen the three convicted

accused moving swiftly away from the direction of the

site of the murder at about 7.30 p.m. or that he had

seen the appellant Gopal Sah with a sickle in hand is

hardly sufficient to hold him guilty of murder. We are,

further, of the opinion that an extra judicial confession

is, on the face of it, a weak piece of evidence and the 10

Courts are reluctant in the absence of a chain of cogent

circumstances to rely on this evidence for the purpose of

recording a conviction. In any case, we find that the

confession made by Dasrath Sah can, if at all, be used

against him and not against his co-accused. The

statement of the investigating officer with respect to the

place where the two murder weapons had been allegedly

thrown makes the recovery itself tenuous. Moreover, as

the sickle allegedly in the hands of Gopal Sah had been

recovered from a pond three months after the murder,

no evidentiary value whatsoever can be attached to this

circumstance as well.

9. The argument of the State counsel that as the appeal of

Bhushan Sah had been dismissed on merits, the appeal

of Gopal Sah must meet the same fate must now be

examined. We observe that Bhushan Sah's appeal had

been dismissed in limine on the ground of limitation as

also on merit but we have chosen to hear the present

appeal after leave had been granted by this Court long

before Bhushan's special leave petition had been filed. 11

We, even otherwise, are of the opinion that the evidence

involving Bhushan Sah is qualitatively and

quantitatively different from the evidence against Gopal

Sah, as would be apparent from the circumstances

noted above, not only with respect to the last seen but

also relating to the recovery of various items from his

house which could be said to be relatable to the murder.

We must, therefore, conclude that the dismissal of the

special leave petition of Bhushan Sah in limine, would

not by itself be a ground to dismiss the appeal of Gopal

Sah.

10. For the reasons stated above, we find the judgment of

the trial and the High Court in so far as Gopal Sah is

concerned to be unsustainable. He is accordingly

acquitted of all charges. The appeal is allowed in the

above terms.

...................................J. (DALVEER BHANDARI)

...................................J. (HARJIT SINGH BEDI) 12

New Delhi, Dated: December 3, 2008