Hans Yadav & Sadanand Tripathi Vs. State of Bihar & Ors  INSC 64
(25 February 1987)
Rangnath Misra Rangnath Dutt, M.M. (J)
1987 AIR 955 1987 SCR (2) 405 1987 SCC (2) 197 JT 1987 (1) 595 1987 SCALE
Evidence Act, 1872:ss.24 & 30--Confession of a co-accused--Not Substantive
evidence against other coaccused in the trial--Can be used only for lending
assurance to other substantive evidence--Extra-judicial confession made
following assault--Neither voluntary nor natural.
Penal Code, 1860:s.302 read with s. 120-B--Death sentence-Direct
evidence--Accused caught red-handed--Confessed to his crime--Conviction and
sentence upheld--Crime whether committed at the behest of co-accused--Where
prosecution relies upon circumstantial evidence a clear link to be established
and the chain completed to prove conspiracy.
appellants were alleged to have conspired to kill the Collector-cure-District
Magistrate. The latter died in a bomb attack by the first accused appellant. He
was caught red-handed and when given a beating by eye-witnesses he readily
confessed to his guilt, but gave out that he had committed the ghastly murder
at the behest of the second appellant, who was at that material time detained
made a similar confession before the Magistrate. They were both convicted under
s.302 read with s. 120B of the Indian Penal Code and sentenced to death. Their
sentence was confirmed by the High Court.
of the appeals, this Court,
There was direct evidence of first appellant's involvement in the crime and he
had also confessed to his guilt. There was, therefore, no justification to take
a view different from what has been said about him by the High Court. His
conviction as also sentence shall stand. [408F-G]
The prosecution has failed to establish by circumstantial evidence the
complicity of the second appellant in the conspiracy to kill the Collector
through the first accused. He was, therefore, entitled to the benefit of doubt
and his conviction was not sustainable. [413D] 406
Where the prosecution relies upon circumstantial evidence to support the charge
of conspiracy, a clear link has to be established and the chain has to be
complete, otherwise it would indeed be hazardous to accept a part of the link
as the complete one. On the basis of such incomplete circumstantial evidence,
the allegation of conspiracy cannot be accepted. [413C]
The confession of a co-accused is not substantive evidence against other
co-accused persons in the same trial but could only be used for lending
reassurance if there be any other substantive evidence to be utilised or acted
Kashmira Singh v. State of Madhya Pradesh,
 SCR 526 and Hari Chand Kurmi & Anr. v. State of Bihar,  6 SCR 623, referred to.
The judicial confession of the main accused in the instant case was exculpatory
in nature and, therefore, would not be admissible against the co-accused. It
has, to be kept out of consideration. [410A-B]
The extra-judicial confession of the main accused relates to the point of time
contemporaneous to the incident. There was evidence that he was beaten up badly
after being apprehended by the mob soon after the bomb burst.
prosecution witnesses have spoken about his confession before them. There was
clear material that he was manhandled. [410B-C]
his statement recorded under s.164 of the Code on 13.4.1983, the main accused
denied to have made any statement following his apprehension. Even accepting
the prosecution story that he made this statement, he appears to have made the
statement following assault on him. Even if it is accepted that he has made the
statements as alleged, the same cannot be utilised against the co-accused.
Obviously when the accused was beaten up, he must have been anxious to ensure
that the assault stopped. His plea in such a situation would neither be
voluntary nor natural. It would not be proper to rely upon the same for any
purpose. [410H; 411A-B]
2nd appellant might have had grudge against the Collector for his detention as
also for the demolition of his Ashram. That must have been the common reaction
of all the ashramites, including the co-accused. This could not, therefore, be
a feature to supply motive for establishing conspiracy. [412C-D] 407
Several witnesses were examined to show that the main accused was very close to
the co-accused. But the source of their knowledge appeared to be statement of
the main accused and independently they had no personal knowledge of the fact.
P.W.4, who testified that during his interview with his wife in the same jail,
he had overheard the alleged conversation between the accused and the 2nd
appellant, was himself a convict in three cases of murder. His wife, who was a
material witness has not been examined in the case.
inference, has to be drawn against the prosecution for not doing so. [413A-B]
This type of evidence, even if accepted, does not establish conspiracy because
the accused being a follower of the 2nd appellant, a religious preacher, he was
likely in the usual course to meet the latter and the fact that they were
meeting at regular intervals by itself would not establish conspiracy. [412F]
APPELLATE JURISDICTION: Criminal Appeal Nos. 423-425 of 1986.
the Judgment and Order dated 4.4.1986 of the Patna High Court in Death
Reference No. 3 of 1984 and in Crl. Appeal No. 676, 647 and 627 of 1984.
and S.P. Singh for the Appellants.
and D. Goburdhan for the Respondents.
Judgment of the Court was delivered by RANGANATH MISRA, J. These appeals by
special leave are directed against a common judgment of the Patna High Court
rendered in Death Reference 3 of 1984 and Criminal Appeal No. 627,647 and 676
of 1984. Each of the appellants in the two appeals has been sentenced to death
under section 302 read with section 120-B of the Indian Penal Code.
Yadav has independently been convicted under section 302 of the Code and has
been sentenced to death. He has also been convicted under section 3 of the
Explosive Substance Act and has been sentenced to ten years' rigorous
imprisonment. Two other accused persons who had been put on trial along with
the appellants were 408 acquitted by the trial court and their acquittal has
Narain Prasad Sharma, the victim, was a Member of the Indian Administrative
Service and was posted as Collector and District Magistrate of Gopalganj
District in the State of Bihar on the 11th of April, 1983 Mahesh Narain went to
his court to work in the morning and after he finished his work, both he and
his brother, P.W.62, who was waiting in the chamber of the victim started going
down from the first floor of the Collectorate to reach the portico where the
Collector's car was parked. Mahesh Prasad was followed by his Orderly-Peon,
P.W. 19, and his brother one after the other. When the deceased came on the
landing, Yadav who was following them suddenly took out a bomb from the bag
which he held and threw it at the Collector. The bomb exploded with a loud
noise and as a result of the burst Mahesh Prasad fell rolling on the ground and
part of his body was blown off. Yadav jumped off from the stairs through the
side railing but was chased by P.W.62 and others and was apprehended near a
fruit stall. He readily confessed to his guilt but gave out that he had
committed the ghastly murder at the behest of appellant Tripathi. According to Yadav,
Tripathi had prevailed upon him to kill the Collector by way of retaliation for
demolishing the Ashram after getting Tripathi detained in jail. Yadav further
maintained that Sadiq, one of the accused persons, had supplied the bomb to
the Inspector of Police, who was attracted to the scene by the sound of the
bomb burst recorded the first information given by P.W.62, arrested Yadav and
sent him to Gopalganj Police Station.
trial, 75 witnesses were examined for the prosecution. Out of them, the
evidence of 14 had been tendered.
as Yadav is concerned, there was direct evidence of his involvement and he had
also confessed to his guilt.
leave, so far as he is concerned, is limited to the question of sentence. We
have, therefore, heard learned counsel for Yadav on the question of sentence
and see no justification to take a view different from what has been said about
him by the High Court. His appeal, therefore, is dismissed and his conviction
as also sentence as awarded by the trial court and confirmed by the High Court
shall now deal with the appeal filed by Sadanand Tripathi. Sadanand came from a
poor family and started his career as a Bus Conductor. While in employment, he
obtained the Degree in Law and started practice as a lawyer in Uttar Pradesh
for some time. Thereafter, he started giving religious discourses and styled
himself as Sant 409 Gyaneshwar Maharaj. He tried to make his followers believe
that he had seen God and if they followed him and his preachings, they too
could see God. Soon he picked up considerable following. He used to tell his
followers that they should surrender their body, wealth and mind so that the
prospect of seeing God would be bright. He encroached upon a plot of Government
land and built his Ashram thereon. As he had easy access to resources, the
Ashram got fitted with all modern amenities. Soon his followers, however,
started realizing that they had been duped and tricked and began to withdraw
from him. Sadanand had employed a band of muscle men to carry out his nefarious
designs. His followers often became apprehensive of their own security and
approached the local authorities for protection. The Ashram, as the prosecution
has tried to show, turned into a den of criminals.
the authorities raided the Ashram, recovered bombs and several other objectionable
articles there from.
and many others were taken into custody on 10.7.1982. The deceased, Mahesh
Prasad, who was Collector of Gopalganj made an order under the Crime Control
Act detaining Sadanand in jail. Eviction proceedings from the encroached land
had already been undertaken. On 14.7.1982 the Commissioner dismissed the appeal
filed on behalf of the Ashram and on 15th July, 1982, the entire structure of the Ashram
was demolished under the direct supervision of the Collector.
not disputed that from th July, 1982 Sadanand had continuously been detained in
jail till the Collector's murder on 11.4.1983. In view of this fact, the
prosecution has relied upon the allegation of conspiracy, confession and other
features to establish the complicity of Sadanand in the murder of the
are two confessions--a judicial confession before a Magistrate, being Exhibit
44 and the other is extra judicial confession. Dealing with Exhibit 44, the
High Court has observed: "So far as the confession before the Magistrate,
Exhibit 44, is concerned, the trial court has itself, hesitatingly, accepted
the same. From the confession I find that it was in the nature of the
cross-examination which is not permissible under the law and has been depricated
by the Supreme Court and different courts of the country. Mr. Pandey, learned
counsel appearing on behalf of the State, has fairly submitted that Exhibit 44
cannot be used in this case. Therefore, it has to be excluded from
consideration." 410 Before us Mr. Jai Narain for the State initially
placed reliance on the confession but later conceded that apart from what the
High Court has observed with regard to the confession, it appeared to be
exculpatory in nature and, therefore, would not be admissible against the
these circumstances, the judicial confession has to be kept out of
to the extra judicial confession it has to be remembered that the same related
to the point of time contemporaneous to the incident. There is evidence that Yadav
was beaten up badly after being apprehended by the mob soon after the bomb
burst. Several prosecution witnesses have spoken about Yadav confession before
them. There is clear material that Yadav was man-handled. P.W.3 has stated: "He
was held by me and other persons chasing him. We began to assault him and make
enquiries from him. Then the said person himself said, 'why you people are
assaulting me. I have killed the Collector by bomb at the orders of Guru Sant Gyaneshwar
and one bomb has been left in the Jhola".
people who caught of him began to assault him and began to ask him why has he
killed the Collector. On being asked, he replied that he had killed the
Collector under the orders of Baba ................" P.W. 11 stated:"On
being caught hold of, he was assaulted with slaps, fists and asked as to why he
did so. On being asked, the said person replied that he had hit the Collector
by bomb at the orders of Guru." Several other witnesses have also spoken
in the same trend about Yadav being assaulted by the angry mob soon after his
apprehension. It is a fact that a set of witnesses who, according to the
prosecution, were present when Yadav was taken into custody following the
incident, have not spoken about any confession. They are P.Ws. 5, 12, 15, 40
own statement recorded under section 164 of the Code on 13.4.1983, Yadav denied
to have made any statement follow411 ing his apprehension. Even accepting the
prosecution story that Yadav made this statement, he appears to have made the
statement following assault on him. Even if it is accepted that Yadav has made
the statements as alleged, can the same be utilised against Sadanand is the
next aspect for consideration. Obviously, when Yadav was beaten up, he must
have been anxious to ensure that the assault stopped. His plea in such a
situation would neither be voluntary nor natural. It would not be proper to
rely upon the same for any purpose.
well-settled that the confession of a co-accused is not substantive evidence
against other co-accused persons in the same trial. As this Court pointed out
in Kashmira Singh v. State of Madhya Pradesh,  SCR 526 the confession of
a co-accused is not substantive evidence against the other accused persons at
the trial but could only be used for lending reassurance if there by any other
substantive evidence to be utilised or acted upon.
Charan Kurmi & Anr. v. State of Bihar,  6 SCR 623 this Court
observed: "Thus, the confession may be regarded as evidence in that
generic sense because of the provisions of section 30, the fact remains that it
is not evidence as defined by section 3 of the Act. The result, therefore, is
that in dealing with a case against an accused person, the Court cannot start with
the confession of a co-accused person; it must begin with other evidence
adduced by the prosecution and after it has formed its opinion with regard to
the quality and effect of the said evidence, then it is permissible to turn to
the confession in order to receive assurance to the conclusion of guilt which
the judicial mind is about to reach on the said other evidence."
"........... that the confession of a co-accused person cannot be treated
as substantive evidence and can be pressed into service only when the court is
inclined to accept other evidence and feels the necessity of seeking for an
assurance in support of its conclusion deducible from the said evidence ."
It is now to be found out if apart from the confession there is any substantive
evidence from which the prosecution can have support for its case. According to
the prosecution, Yadav was staying with 412 Sadanand in the Ashram. Learned
counsel for Sadanand has argued that the prosecution evidence on this score
should be rejected as when on 10th July, 1982
Sadanand was taken into custody following the raid on the Ashram, Yadav was not
found there. Again on the 15th when the Ashram was demolished and most of the
inmates were taken into custody, Yadav was not arrested.
other witnesses were examined to show that Yadav was very close to Sadanand.
But as has been rightly pointed out the source of their knowledge appeared to
be statement of Yadav and independently they had no personal knowledge of the
sought to place reliance upon motive. Undoubtedly, Sadanand must have had
grudge against the Collector for his detention as also for the demolition of
the Ashram. As a matter of fact, that must have been the common reaction of all
the ashramites including Yadav and Sadiq.
this could not be a feature to supply the link for establishing conspiracy.
also relied upon a feature, which if accepted, could provide some link between
the two for the commission of the offence. According to the prosecution, Yadav
was regularly visiting Sadanand at the jail. The jail records do not support
such visits. According to the prosecution case, Yadav was bribing the jail
officials for meeting Sadanand.
prosecution has further led evidence to show that after the arrival of Sadanand
at the jail, enforcement of rules became slack and there was a regular flow of
food from outside. Jail officials were also entertained by Sadanand.
type of evidence, even if accepted, does not establish conspiracy because Yadav,
being a follower, was likely in the usual course to meet Sadanand and the fact
that they were meeting at regular intervals by itself would not establish
conspiracy. Prosecution relied on an event of 11th April, 1983 by examining
P.W.4. This witness who was a convict staying in the same jail stated that his
wife had an interview with him in the jail by paying bribe of Rs.2 or Rs.3 on
11.4.1983. While he was talking to his wife, he saw accused Yadav talking to Sadanand.
He over-heard Yadav telling Tripathi that his work would be done within an hour
or so. Sadanand appeared to be happy on being told so. P.W.4 has admitted that
he has been convicted in three cases of murder and several dacoities. It
appears that by then he had some pending cases against him where final reports
were later given by the police. His wife who was a material witness has not
been examined in the case.
Obviously, as the jail records did not show that P.W.4 had an interview with
his wife that day, the story of bribing the jail officials has been introduced.
We are prepared to accept the criticism of counsel for the appellant that if
the wife had been called she would not have supported the version that she met
her husband P.W.4 on that day. Adverse inference for not examining the wife has
to be drawn against the prosecution. This would thus be the net position.
true as argued by Mr. Jai Narain for the State that it is difficult to support
the charge of conspiracy with direct evidence in every case but if the
prosecution relies upon circumstantial evidence, a clear link has to be
established and the chain has to be completed, otherwise it would indeed be
hazardous to accept a part of the link as a complete one and on the basis of
such incomplete evidence, the allegation of conspiracy cannot be accepted.
Keeping the nature of the offence in view and the conclusions drawn by the High
Court, we have not been able to agree with the High Court that the prosecution
has established by circumstantial evidence the complicity of Sadanand in the
conspiracy to kill the Collector through Yadav. In these circumstances, Sadanand
has become entitled to the benefit of our doubts and his conviction is not
sustainable. His appeal has to be allowed. He is acquitted and is directed to
be set at liberty forthwith.
we part with the case, we must point out that in a case involving the killing
of the District Magistrate in his office, better investigation was expected and
the State should have taken great care to ensure that every loophole in the
investigation was plugged at the fight time in accordance with law. It is
unfortunate that lapses have occurred.
Appeals disposed of.