Nikhil Chandra Mondal vs State Of West Bengal

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2269 OF 2010

NIKHIL CHANDRA MONDAL ...APPELLANT(S) VERSUS STATE OF WEST BENGAL ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. The appeal challenges the judgment and order dated

15th December 2008 passed by the High Court at Calcutta in

Government Appeal No. 38 of 1987, thereby reversing the

judgment and order dated 31st March 1987 passed by the

Additional Sessions Judge, 4th Court, Burdwan (hereinafter

referred to as “the trial court”), vide which the trial court had

acquitted the appellant for the charge under Section 302 of

the Indian Penal Code, 1860 (for short, “IPC”). Vide the Signature Not Verified Digitally signed by Narendra Prasad impugned judgment and order, the Division Bench of the Date: 2023.03.03 12:45:10 IST Reason:

High Court convicted the appellant for the offence punishable

1 under Section 302 of the IPC and sentenced him to undergo

imprisonment for life and a fine of Rs.2,000/- and in default

of payment of fine, to undergo further imprisonment for a

period of six months.

2. The prosecution case, in brief, as could be gathered

from the material placed on record is thus:

On 11th March 1983, UD Case No. 7/83 was

registered at PS Ketugram that the dead body of an unknown

married woman aged about 25 years was lying in a field on

the side of the railway track at Ambalgisan Railway Station.

The lady appeared to have been murdered by a sharp cutting

weapon. On the basis of the aforesaid, Police had begun the

investigation. During investigation, it was revealed that the

appellant, accompanied his wife (the deceased) and their son

had gone to attend the Fullara Mela organised in Lavpur

Gram Panchayat and thereafter, the deceased was alleged to

be missing from the said Mela. During the investigation, it

was also revealed that the appellant had confessed before

Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai

Ch. Saha (PW-12) that he had murdered the deceased with a

2 bhojali (the murder weapon) at that very spot where the body

of the deceased was found.

3. Upon completion of the investigation, a charge-sheet

came to be filed before the Chief Judicial Magistrate,

Burdwan under Section 302 of the IPC against the appellant.

The case was committed to the Court of Sessions. The

appellant pleaded not guilty and claimed to be tried. At the

conclusion of the trial, the trial court vide judgment and

order dated 31st March 1987 acquitted the appellant from the

charges levelled against him. Being aggrieved thereby, the

State preferred an appeal before the High Court. By the

impugned judgment and order, the High Court allowed the

appeal and convicted and sentenced the appellant as

aforesaid. Hence, the present appeal.

4. We have heard Ms. Rukhsana Choudhury, learned

counsel appearing on behalf of the appellant and Ms. Astha

Sharma, learned counsel appearing on behalf of the State.

5. Ms. Choudhury submits that the High Court has

grossly erred in reversing the well-reasoned judgment and

order of acquittal passed by the trial court. She submits that

3 the trial court had rightly disbelieved the testimonies of

Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai

Ch. Saha (PW-12) being inconsistent with each other. It is

therefore submitted that the finding of the trial court

disbelieving the extra-judicial confession alleged to have been

made to these three witnesses could not be said either to be

perverse or illegal/impossible. She further submits that in

any case the interference in a finding of acquittal would not

be warranted unless the finding is found to be perverse or

illegal/impossible. She therefore submits that the impugned

judgment and order is liable to be set aside.

6. Ms. Sharma, on the contrary, submits that the High

Court has rightly found that the extra-judicial confession

made before PWs 10 to 12 is trustworthy, reliable and

cogent. She therefore submits that the High Court has

rightly reversed the judgment and order of acquittal which

was recorded disbelieving the cogent and reliable testimonies

of these three witnesses. She further submits that, apart

from the extra-judicial confession, the prosecution has also

established the recovery of the blood-stained clothes and the

4 weapon used by the appellant in commission of the crime.

This circumstance corroborates the testimonies of PWs 10 to

12.

7. With the assistance of the learned counsel for the

parties, we have scrutinized the entire evidence.

8. Undisputedly, the present case rests on

circumstantial evidence. The law with regard to conviction in

the case of circumstance evidence is very well crystalised in

the judgment of this Court in the case of Sharad

Birdhichand Sarda v. State of Maharashtra1.

9. We may gainfully refer to the following observations

of this Court in the case of Sharad Birdhichand Sarda

(supra):

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

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

It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was 1 (1984) 4 SCC 116

5 held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 :

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

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

10. It can thus be seen that this Court has held that the

circumstances from which the conclusion of guilt is to be

6 drawn should be fully established. It has been held that the

circumstances concerned “must or should” and not “may be”

established. It has been held that there is not only a

grammatical but a legal distinction between “may be proved”

and “must be or should be proved”. It has been held that 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. It has been held that the

circumstances should be of a conclusive nature and

tendency and they should exclude every possible hypothesis

except the one sought to be proved, and that there must be a

chain of evidence so complete so 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.

11. It is a settled principle of law that however strong a

suspicion may be, it cannot take place of a proof beyond

reasonable doubt. In the light of these guiding principles, we

will have to consider the present case.

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12. The prosecution case rests basically on the extra-

judicial confession alleged to have been made by the

appellant before Manick Pal (PW-10), Pravat Kumar Misra

(PW-11) and Kanai Ch. Saha (PW-12).

13. The trial court observed that where the prosecution

case is entirely based on extra-judicial confession and the

prosecution seeks conviction of the accused on that extra-

judicial confession, the evidence of the witnesses before

whom the alleged confessional statement was made, requires

a greater scrutiny to pass the test of credibility.

14. The trial court found that the evidence of PWs 10 to

12 were contradictory to each other. It is further to be noted

that the trial court had the benefit of witnessing the

demeanour of these witnesses. It found the evidence of these

witnesses not to be trustworthy.

15. It is a settled principle of law that extra-judicial

confession is a weak piece of evidence. It has been held that

where an extra-judicial confession is surrounded by

suspicious circumstances, its credibility becomes doubtful

and it loses its importance. It has further been held that it is

8 well-settled that it is a rule of caution where the court would

generally look for an independent reliable corroboration

before placing any reliance upon such extra-judicial

confession. It has been held that there is no doubt that

conviction can be based on extra-judicial confession, but in

the very nature of things, it is a weak piece of evidence.

Reliance in this respect could be placed on the judgment of

this Court in the case of Sahadevan and Another v. State

of Tamil Nadu2. This Court, in the said case, after referring

to various earlier judgments on the point, observed thus:

“16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

2 (2012) 6 SCC 403

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(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

16. As already discussed hereinabove, the trial court

found the testimonies of PWs 10 to 12 not to be reliable so as

to base the conviction solely on the basis of such testimonies.

Unless such a finding was found perverse, an interference

therewith would not be warranted.

17. The Division Bench of the High Court has relied on

the recovery of the blood-stained clothes and the weapon

which is alleged to have been used by the appellant in

commission of the crime.

18. The trial court disbelieved the recovery of clothes

and weapon on two grounds. Firstly, that there was no

memorandum statement of the accused as required under

Section 27 of the Evidence Act, 1872 and secondly, the

10 recovery of the knife was from an open place accessible to

one and all. We find that the approach adopted by the trial

court was in accordance with law. However, this

circumstance which, in our view, could not have been used,

has been employed by the High Court to seek corroboration

to the extra-judicial confession.

19. The scope of interference in an appeal against

acquittal is very well crystalised. Unless such a finding is

found to be perverse or illegal/impossible, it is not

permissible for the appellate Court to interfere with the same.

20. Recently, a three-Judges Bench of this Court in the

case of Rajesh Prasad v. State of Bihar and Another 3 has

considered various earlier judgments on the scope of

interference in a case of acquittal. It held that there is

double presumption in favour of the accused. Firstly, the

presumption of innocence that is available to him under the

fundamental principle of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved

guilty by a competent court of law. Secondly, the accused

having secured his acquittal, the presumption of his 3 (2022) 3 SCC 471

11 innocence is further reinforced, reaffirmed and strengthened

by the court. It has been further held that if two reasonable

conclusions are possible on the basis of the evidence on

record, the Appellate Court should not disturb the finding of

acquittal recorded by the trial court.

21. We find that the view taken by the trial court could

not be said to be either perverse or illegal/impossible to

warrant interference. The High Court has grossly erred in

interfering with the well-reasoned judgment and order of

acquittal passed by the trial court.

22. In the result, we pass the following order:

(i) The appeal is allowed;

(ii) The impugned judgment and order dated 15th

December 2008 passed by the High Court at

Calcutta in Government Appeal No. 38 of 1987

convicting the appellant for the offence punishable

under Section 302 of the IPC is quashed and set

aside; and

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(iii) The judgment and order dated 31 st March 1987

passed by the trial court acquitting the appellant

from the charges levelled against him is affirmed.

23. The appellant is directed to be set at liberty forthwith

if not required in any other case.

24. Pending application(s), if any, shall stand disposed

of.

…..….......................J. [B.R. GAVAI]

…….........................J. [SANJAY KAROL]

NEW DELHI;

MARCH 03, 2023.

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