ANUJ KUMAR GUPTA @ SETHI GUPTA vs. STATE OF BIHAR

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1575 OF 2009 ANUJ KUMAR GUPTA @ SETHI GUPTA …APPELLANT VERSUS STATE OF BIHAR …RESPONDENT J U D G M E N T FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This appeal is directed against the judgment of the High Court of Patna at Bihar dated 02.11.2007, passed in JUDGMENT Criminal Appeal No.690 of 2005. The said appeal was disposed of along with Criminal Appeal No.606/2005, as well as Death Reference No.8 of 2005. 2. To trace the brief facts, the deceased Chhotu Kumar Das @ Abhinav Das (hereinafter referred to as ‘Chhotu’) son of the informant Gopal Prasad Das (PW-6), left his house on 21.04.2002 at about 8.15 p.m., for visiting a local Mela, Criminal Appeal No.1575 of 2009 1 of 17 Page 1 which was held every year in the village on the eve of Ram Navami. Thereafter, he could not be traced inspite of a search by his parents and, therefore, a written report was

deceased could not be traced. No suspicion was raised against any person for the disappearance of the deceased. 3. Based on the written report, the police registered the FIR in P.S. Case No.39/2002 and proceeded with the investigation. The investigation was carried out by PW-9, the Sub- Inspector of Police. In the course of the investigation, he came across some suspicious materials against the appellant by some of the witnesses. PW-9, therefore, interrogated the appellant on 22.04.2002, whereafter he JUDGMENT was arrested. The appellant made a confessional statement before the police on 23.04.2002 and based on the admissible portion of the said confessional statement, the dead body of the deceased was recovered from a river known as Maldiha Dhar. The co-accused Arun Mandal @ Arun Kumar Mandal was also arrested, while another accused Sudhir Kumar Mandal could not be apprehended on Criminal Appeal No.1575 of 2009 2 of 17 Page 2 that day. The inquest of the body was prepared on 24.4.2002 at 5.00 p.m. and the postmortem was conducted by PW-10. It was based on the above investigation, the

Sudhir Mandal for offences under Sections 364(A), 302, 201 and 120-B IPC. 4. The appellant and the co accused pleaded innocence and the trial Court proceeded with the case. The prosecution examined PWs-1 to 10 on their side. In the 313 questioning, the appellant and the other accused made a total denial. The trial Court based on the evidence placed before it reached the conclusion that the appellant and the co- accused Arun Mandal, were guilty of the offences falling JUDGMENT under Sections 364(A), 302, 201 and 120-B, IPC and imposed death penalty on them and in the light of the said sentence held that no separate sentence was passed against them. The other accused, namely, Girendra Gupta and Sudhir Mandal, were acquitted of all the offences charged against them. Criminal Appeal No.1575 of 2009 3 of 17 Page 3 5. By virtue of the death penalty imposed, the Death Reference No.8 of 2005 came to be dealt with by the High Court along with the appeals preferred by the appellant

No.606/2005. The High Court by the judgment impugned, while upholding the conviction imposed on the appellant held that no offence was made out as against Arun Mandal and he was acquitted of all the charges. As far as the appellant was concerned, while affirming the conviction, the High Court commuted the death sentence to imprisonment for life for the offence under Section 302 IPC and held that there was no sufficient evidence to hold him guilty of the charge under Section 364 and 120-B IPC. He was found JUDGMENT guilty of charges under Sections 302 and 201 IPC. 6. We heard Ms. Rakhi Ray, Amicus Curiae for the appellant and Mr. Sanat Tokas, learned counsel representing Mr. Gopal Singh, learned counsel for the State. Learned counsel for the appellant in her submissions was mainly contending that this case being one purely based on circumstantial evidence, the reliance placed upon by the trial Court, as Criminal Appeal No.1575 of 2009 4 of 17 Page 4 well the High Court on the confessional statement of the appellant made to the investigating officer PW-9 cannot stand and, therefore, the conviction and sentence imposed

attacking the judgment impugned in this appeal. 7. Learned counsel for the State would contend that the trial Court, as well as the High Court have gathered the chain of circumstances, which led to the killing of the deceased by the appellant and since the chain of circumstances was complete in every respect, the conviction and sentence imposed on the appellant does not call for interference. Learned counsel for the State also contended that the trial Court, as well as the High Court have only placed reliance JUDGMENT on the admissible portion of the confessional statement of the appellant made to PW-9, the investigating officer. 8. Having considered the respective submissions of the learned counsel and having perused the judgment of the Division Bench, as well as the trial Court and all other material papers, we find that the only contention of the learned counsel for the appellant was that merely based on Criminal Appeal No.1575 of 2009 5 of 17 Page 5 the confessional statement of the appellant to PW-9, the Investigating officer, the conviction came to be imposed and the same was not in consonance with law.

no eye witness to the occurrence. The whole case is based on the circumstantial evidence, therefore, our only endeavour is to find out whether the chain of circumstance noted by the trial Court, as well as the High Court was complete without any disruption in order to confirm the conviction and sentence imposed on the appellant. 10. As far as the admissibility of the confessional statement made by the appellant to the investigating officer PW-9 was concerned, the law on this aspect is quite clear, which we JUDGMENT wish to explain at the very outset and before examining the chain of circumstances noted and explained in the judgment impugned. 11. As far as the admissibility of the confessional statement made by an accused to the police officer is concerned, the law is well settled, which can be succinctly stated by making reference to an earlier decision of this Court in Criminal Appeal No.1575 of 2009 6 of 17 Page 6 Bheru Singh v. State of Rajasthan - 1994 (2) SCC 467. In the said decision, paras 16 and 19 can be usefully referred, which read as under:

JUDGMENT Criminal Appeal No.1575 of 2009 7 of 17 Page 7 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.

JUDGMENT (Emphasis added) 12. In this context we can also refer to a recent decision of this Court in Sandeep v. State of Uttar Pradesh - 2012 (6) SCC 107. In para 52, the legal position as regards the Criminal Appeal No.1575 of 2009 8 of 17 Page 8 admissibility of some part of the statement of the accused, which can be treated as admission has been explained as under in para 52:

(Emphasis added) 13. Since the confessional statement was made before the JUDGMENT investigating officer (PW-9), it is necessary to note what exactly was the confession stated to have been made, which enabled the IO to make some progress in his investigation. According to PW-9, he recorded the confession of the appellant at 11.30 p.m. on 23.04.2002. He also stated that based on the information furnished by the appellant, he also arrested Arun Mandal who also made Criminal Appeal No.1575 of 2009 9 of 17 Page 9 a confession, which was identical to the one made by the appellant. Though PW-9 would refer to very many statements alleged to have been admitted by the appellant

accepted as admissible in the evidence related to the identification of the place where the dead body of the deceased Chhotu was found, based on the admission of the appellant and the co-accused. 14. Insofar as the said part of the evidence of PW-9 read along with the admission found in Exhibits-4 and 5 is concerned, it has come out in evidence that the appellant was taken to the place called Maldiha Dhar (a river stream) along with PW-4, the paternal uncle of the deceased where the dead JUDGMENT body of the deceased Chhotu was recovered from the water of Maldiha Dhar. PW-9 stated that since Maldiha Dhar (stream) fell within the jurisdiction of Barhara P.S., of district Purnea, he could not immediately lift the body from that place, that he left the dead body at that very place under the protection of armed forces and, therefore, after getting necessary official clearance, the body was handed over to Criminal Appeal No.1575 of 2009 10 of 17 Page 10 the police station of his jurisdiction and the same was sent for carrying out necessary post mortem. PW-4 in his evidence also corroborated the above said version of PW-9

reached the place Maldiha Dhar, where the dead body was found as pointed out by the appellant and co accused. He also stated that he identified the dead body as that of his nephew, Chhotu the deceased. He further stated that the eyes of the dead body were open, the tongue was protruding out and that there were marks of throttling in the neck of the deceased. 15. From the above evidence of PW-9, supported by the version of PW-4, it has come to light that at the instance of the JUDGMENT appellant and the co-accused Arun Mandal, the body of the deceased Chhotu was recovered from Maldiha Dhar (river stream) and that it was noted at that time the eyes of the dead body and the tongue were protruding out. There were also signs of marks on the neck of the deceased Chhotu. The said part of the confessional statement as recorded by PW-9, cannot be said to straightaway implicate the Criminal Appeal No.1575 of 2009 11 of 17 Page 11 appellant and the co-accused to the killing of the deceased. Leaving aside the rest of the part of the admission, the identity of the place at the instance of the appellant and the

appellant, was certainly admissible by virtue of the application of Section 8, read along with Section 27 of the Evidence Act. 16. In such circumstances, in the absence of any convincing explanation offered on behalf of the appellant accused as to under what circumstances he was able to lead the Police party to the place where the dead body of the deceased was found, it will have to be held that such recovery of the dead body, which is a very clinching circumstance in the JUDGMENT case of this nature, would act deadly against the appellant considered along with rest of the circumstances demonstrated by the prosecution to rope in the appellant in the alleged crime of the killing of the deceased. Therefore, once we find that there was definite admission on behalf of the appellant by which the prosecuting agency was able to recover the body of the deceased from a place, which was Criminal Appeal No.1575 of 2009 12 of 17 Page 12 within the special knowledge of the appellant, the only other aspect to be examined is whether the appellant came forward with any convincing explanation to get over the

313 questioning where he had an opportunity to explain, except a mere denial there was no other convincing explanation offered by him. 17. Thus, we reach a conclusion that the said circumstance of recovery of the body of the deceased from the place called Maldiha Dhar (a river stream) at the instance of the appellant as spoken to by PW-9, supported by the evidence of PW4, we have to only see whether rest of the circumstances considered by the trial Court, as well as the JUDGMENT High Court, were sufficient to confirm the ultimate conviction of the appellant and the sentence imposed on him. On this aspect when we perused the judgment of the trial Court, as well as the High Court, the following circumstances have been found to be established: (i) PW-1 referred to the factum of the appellant attempting to ride a motorcycle in a narrow lane opposite to the shop of Criminal Appeal No.1575 of 2009 13 of 17 Page 13 PW-1 and that when PW-1 advised him that vehicle cannot pass through the said lane the appellant parked the said motorcycle near the shop of PW-1 and went away to Thakurbari on foot; (ii) PW-1 was asked by the father of the accused who was also arrayed as A-3, namely, Girendra Gupta who requested PW-1 not to divulge the said fact about the parking of the motorcycle to anyone; (iii) According to PW-4, the uncle of the deceased, while he along with others were searching for the deceased he was informed by an old lady that she saw two persons going in a motorcycle with a boy sitting in between them though she could not identify any of them due to darkness. JUDGMENT (iv) The deceased who went to attend the Mela at about 8 or 9 p.m. on 21.04.2002 did not return back as spoken to by PW-7. (v) The body of the deceased was recovered from Maldiha Dhar (a river stream) based on the identification of the appellant. Criminal Appeal No.1575 of 2009 14 of 17 Page 14 (vi) When the body was recovered it was noted that the eyeball was bulging out and the tongue was protruding out apart from bruises noted on both sides of the neck.

death of the deceased was due to asphyxia by strangulating the neck of the deceased. The said postmortem report also made it clear that eyeball was bulging and the tongue was protruding out and the abrasions on both sides of the neck were also noted. (viii) The admissible version of the confessional statement of the appellant also revealed that his father A-3 asked PW- 1 not to disclose the fact about the parking of a motorcycle of the appellant near his shop. JUDGMENT (ix) The recovery of the motorcycle bearing registration No.BR-39 0148 used by the appellant at the instance of the appellant from his house which was marked as Ext.8. (x) PW-10 the postmortem doctor in the course of the cross- examination confirmed that he could mention the cause of death with certainty and that in any case it was not a case of drowning. Criminal Appeal No.1575 of 2009 15 of 17 Page 15 18. The above circumstances having been found to be fully established, the conclusion of the trial Court, as well that of

was complete in every respect in order to lead to the only conclusion that the appellant was squarely responsible for the killing of the deceased, was well justified. Though the learned counsel for the appellant attempted to point out some discrepancy in the matter of arrest of Arun Mandal and recording of the alleged confessional statement of the appellant under Ext.4, pursuant to which the body was traced out, we are of the view that the said discrepancy was a very trivial one and on that score we do not find any scope to dislodge the findings of the Courts below. We are, JUDGMENT therefore, convinced that the ultimate conviction of the appellant under Section 302 of IPC and the sentence of life imprisonment imposed on him by commuting the death penalty imposed by the trial Court, was perfectly justified and we do not find any good grounds to interfere with the same. The appeal fails and the same is dismissed. Criminal Appeal No.1575 of 2009 16 of 17 Page 16 ………….……….…………………………..J. [A.K. Patnaik]

New Delhi; July 24, 2013. JUDGMENT Criminal Appeal No.1575 of 2009 17 of 17 Page 17