Pawan Kumar Chourasia vs The State Of Bihar

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2230 of 2010

Pawan Kumar Chourasia …..Appellant

Versus

State of Bihar …..Respondent

JUDGMENT

Abhay S. Oka, J.

FACTUAL BACKGROUND

1. The appellant who is accused no.1 was prosecuted along with

four others for the offences punishable under Section 302 read with

Section 34 as well as Section 201 of the Indian Penal Code (for short,

‘IPC’). The appellant has been convicted for both offences. For the

offence under Section 302 read with Section 34 of IPC, he has been

sentenced to undergo life imprisonment. The High Court confirmed

the conviction of the appellant, whereas the remaining four accused

were acquitted.

Signature Not Verified Digitally signed by Anita Malhotra Date: 2023.03.14

2. First informant is one Lakhi Prasad Chourasia (PW­5). First 17:30:22 IST Reason:

Information Report (FIR) was registered on 20 th June 1989. The

1 statement of the first informant on the basis of which the FIR was

registered notes that it has been recorded in the presence of Radhey

Prasad Mandal (PW­1); Kisan Lal Mandal (PW­4); Satya Narain

Mandal (PW­6); and Mohammad Tamijuddin (PW­7). It is alleged that

on 10th June 1989, PW­5 had lodged a missing report. The missing

report was in respect of his son Kamlesh and nephew Bulla, son of

one Hira Chaurasia (PW­9). They were missing from 02nd June 1989.

PW­5 stated that at about 02:00 p.m. on 20 th June 1989, he received

a secret information that both the boys had been murdered by the

present appellant in association with others. Therefore, he along with

the persons mentioned above went to the house of the appellant and

made inquiries. Though initially, the appellant denied, after some

persuasion, he admitted in presence of the aforesaid persons that he

and four others (co­accused) had killed both the boys by

strangulating them and had concealed their bodies in the field of one

Bhagirath at Nakki Bari. PW­5 along with the appellant and others

went to the said field. The appellant removed the soil and both dead

bodies were found. Thereafter, he came to the police station and

lodged a complaint.

3. The prosecution examined 10 witnesses. PW­1 Radhey Prasad

Mandal; PW­2 Jagdish Prasad Chourasia; PW­3 Shobha Lal Mandal;

PW­4 Kisan Lal Mandal; PW­5 the complainant himself; and PW­6

Satya Narain Mandal were declared hostile. According to the

2 prosecution case, the appellant had made a confession in presence of

these witnesses. PW­7 Md. Tamijuddin; PW­8 Suchai Mandal and

PW­9 Hira Lal Chourasia supported the prosecution case and

deposed about the extra­judicial confession made by the appellant to

them. PW­10 is a doctor who performed the autopsy. The

Investigation Officer was not examined. The conviction of the

appellant is based on the extra­judicial confession. Both the Courts

have believed the prosecution case regarding the alleged extra­judicial

confession.

4. With the assistance of the learned counsel appearing for the

parties, we have perused the depositions of the prosecution witnesses

and in particular P.W. nos.7 to 9 and the findings recorded by the

courts below.

EVIDENTIARY VALUE OF EXTRA­JUDICIAL CONFESSION

5. As far as extra­judicial confession is concerned, the law is well

settled. Generally, it is a weak piece of evidence. However, a

conviction can be sustained on the basis of extra­judicial confession

provided that the confession is proved to be voluntary and truthful. It

should be free of any inducement. The evidentiary value of such

confession also depends on the person to whom it is made. Going by

the natural course of human conduct, normally, a person would

confide about a crime committed by him only with such a person in

whom he has implicit faith. Normally, a person would not make a

3 confession to someone who is totally a stranger to him. Moreover, the

Court has to be satisfied with the reliability of the confession keeping

in view the circumstances in which it is made. As a matter of rule,

corroboration is not required. However, if an extra­judicial confession

is corroborated by other evidence on record, it acquires more

credibility.

ANALYSIS OF EVIDENCE

6. As narrated earlier, PW­1 to PW­6 including the complainant

himself whose son was killed did not support prosecution. The case of

the prosecution was that the appellant had confessed to PW­1 to PW­

9. We have carefully analyzed the evidence of P.W. Nos.7, 8 and 9

who were the only material prosecution witnesses. Here is the

analysis of their evidence:­

(a) PW­7 has stated that on 20th June 1989 at about 02:30 p.m.

when he along with PW­1 and PW­6 and other persons were

talking near the gate of Bhagirath Mandal, PW­5 came there

and told them that he had received information that

Pawan(appellant) had murdered his son Kamlesh and nephew

Bulla and had concealed their dead bodies. The prosecution

has made no attempt to investigate into the source of the

alleged information received by PW­5.

4

(b) The version of PW­8 Suchai is different. PW­8 Suchai’s name

is not mentioned in the complaint of PW­5. PW­8 Suchai

claims that on 06th June 1989, he heard the appellant telling

two persons that he had murdered two boys and had concealed

their dead bodies. It is pertinent to note that though PW­8 had

knowledge about the alleged confession made by the appellant

on 06th June 1989, he did not complain to the police. The

omission to report to the police is very significant as he was

admittedly the uncle of the deceased Bulla. His silence creates

more suspicion about the prosecution case.

(c) PW­8 stated that he along with others went along with the

appellant to the place where dead bodies were buried. His

version is that the appellant made a confession when he along

with others was sitting at the gate of Bhagirath. The witness

has not stated that PW­1 to PW­9 visited the house of the

appellant on 20th June 1989 when the appellant made the

extra­judicial confession. Though PW­8 did not say so, PW­9

Hiralal stated that it was PW­8 who took out the dead bodies

after some digging was made by the appellant.

(d) As far as PW­9 Hiralal is concerned, he is the father of Bulla.

He has not stated the place at which the extra­judicial

confession was allegedly made by the appellant. He simply

5 stated that 19 days after his son went missing, the appellant

disclosed in his presence to one Bhagirath (not examined by

the prosecution), PW­1, PW­4 and PW­6 that he had murdered

both the boys and had concealed their dead bodies in the field

of Bhagirath. His version is that it was Suchai (PW­8) who

took out the bodies. However, PW­8 himself did not state that

he took out the bodies.

(e) According to the version of PW­7, PW­1 did not inform him

about any extra­judicial confession made by the appellant but

PW­1 informed him that he had received the information that

the appellant had murdered both boys. Out of these three

witnesses, PW­7 is the only witness who stated that the

appellant made the confession in his own house.

(f) According to the version of PW­7, in the afternoon of 20 th June

1989, he was informed by PW­5 that the appellant had

murdered both the boys. There is no explanation as to why

PW­7 did not approach the police. This conduct of the witness

is unnatural.

(g) None of these three witnesses who supported the prosecution,

have stated that the appellant was either their relative or a

close acquaintance. In fact, they have not even stated that they

personally knew the appellant. There is nothing on record to

show that the relationship between the appellant and these

6 three witnesses was such that the appellant had implicit faith

in these three witnesses and, therefore, he confided with them.

(h) Even after the alleged extra­judicial confession of committing

murder was made before them by the appellant, PW­7 to PW­9

did not report to the police. The prosecution case is that

without informing the police, they accompanied the appellant

to the field of Bhagirath where dead bodies were found buried.

This conduct of PW­7 to PW­9 is unusual and unnatural. PW­7

to PW­9 are not consistent about the place at which the alleged

confession was made.

(i) There is no explanation offered by the prosecution for not

examining Bhagirath who was also present according to PW­9

when the alleged confession was made. This omission

becomes more significant as the dead bodies were allegedly

found in his land.

CONCLUSION

7. Hence, the prosecution’s case about extra­judicial confession

does not inspire confidence at all. Moreover, there are no other

circumstances brought on record which could support or corroborate

the prosecution case. Therefore, in our considered view, the evidence

in form of the extra­judicial confession of the appellant deserves to be

discarded. Admittedly, there is no other evidence against the

appellant. Therefore, the conviction of the appellant cannot be

7 sustained at all. Accordingly, the impugned judgments are set aside

and the appellant is acquitted of the offences alleged against him.

The bail bonds of the appellant stand cancelled. The appeal is

allowed.

…………………………………J. [ABHAY S. OKA]

…………………………………J. [RAJESH BINDAL] New Delhi March 14, 2023.

8