Gopal Sah Vs. State of
Bihar [2008] INSC 2075 (3 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 377 OF 2000 Gopal
Sah ........Appellant State of Bihar .......Respondent
HARJIT SINGH BEDI,J.
1.
Four
persons - Gopal Sah, Dasrath Sah, Bhushan Sah and Raghunath Sah were tried by
the Additional Sessions Judge, Saharsa for offences punishable under Sections
302/34, 304/34,201/34 and 120B of the Indian Penal Code. The trial court in its
judgment dated 14th September 1985 held the first three accused guilty of the
offence under Section 302/34 of the IPC and sentenced them to undergo
imprisonment for life 2 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
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