ANUJ KUMAR GUPTA @ SETHI GUPTAversusSTATE OF BIHAR

                   [2013] 8 S.C.R. 435


         ANUJ KUMAR GUPTA @ SETHI GUPTA                       A
                             v.
                    STATE OF BIHAR
           (Criminal Appeal No. 1575 of 2009)
                      JULY 24, 2013
                                                              B
        [A.K. PATNAIK AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA, JJ.)

      Penal Code, 1860 - ss.302 and 201 - Death of PW-6's
son - Dead body recovered from river - Circumstantial C
evidence - Confessional statement made by accused-
appellant to Investigating officer PW-9 - Conviction of
appellant by Courts below - Justification - Held: Justified -
From the evidence of PW-9, supported by version of PW-4
(uncle of deceased), it is clear that at the instance of the D
appellant and a co-accused, the body of deceased was
recovered from a river stream - There were signs of marks
on the neck of the deceased - The identity of the place where
the dead body was lying, which was exclusively within the
knowledge of.the appellant, was certainly admissible by virtue E
of the application of s.8, rlw s.27 of the Evidence Act - In
absence of any convincing explanation on behalf of the
appellant as to under what circumstances he was able to lead
the Police party to the place where the dead body was found,
such recovery would act deadly against the appellant F.
considered alongwith the rest of the circumstances
demonstrated by the prosecution - Chain of circumstances
complete in every respect in order to lead to the only
conclusion that the appellant was squarely responsible for
killing of the deceased- Evidence Act, 1872- s.8 rlw s.27- G
Applicability of.

    Based on the confessional statement made by
accused-appellant before PW9, the Investigating Officer,
the dead body of PW-6's son was recovered from a river.
                         435                                 H
    436     SUPREME COURT REPORTS            [2013] 8 S.C.R.


A Apart from appellant, there were three other accused. The
  trial Court convicted the appellant and one co-accused
  'A' under Sections 364(A), 302, 201 and 120-B, IPC and
  imposed death penalty on them. The other two co-
  accused were acquitted. The High Court upheld the
B conviction of appellant under Sections 302 and 201 IPC
  but acquitted him of the charges under Section 364 and
  120-B IPC. While affirming conviction, the High Court
  commuted the death sentence imposed upon the
  appellant to imprisonment for life for the offence under
c Section 302 IPC. The co-accused 'A' was however
  acquitted of all the charges.

       In the instant appeal, it was contended by the
  appellant that merely. based on the confessional
  statement of the appellant to PW-9, the Investigating
D officer, he was convicted and the same was not in
  consonance with law.

          Dismissing the appeal, the Court

E      HELD: 1.1. According to PW-9, he recorded the
  confession of the appellant. Though PW-9 would refer to
  very many statements alleged to have been admitted by
  the appellant and co-accused 'A', the only part of the
  admission, which can be noted and accepted as
  admissible in the evidence related to the identification of
F the place where the dead body of PWS's son was found,
  based on the admission of the appellant and the co-
  accused. From the evidence of PW-9, supported by the
  version of PW-4, it has come to light that at the instance
  of the appellant and the co-accused 'A', the body of the
G deceased was recovered from Maldiha Dhar (river
  stream) and that 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. The identity
  of the place at the instance of the appellant and the co-
H accused, as to where the dead body of the deceased was
       ANUJ KUMAR GUPTA @ SETHI GUPTA v. STATE              437
                     OF BIHAR

     lying, which was exclusively within the knowledge of the      A
     appellant, was certainly admissible by virtue of the
     application of Section 8, read along with Section 27 of the
     Evidence Act. [Paras 13, 15] [444-C, D-E; 445-C-F]
.J
          1.2. In absence of any convincing explanation on         B
     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 case
     of this nature, would act deadly against the appellant
                                                                   c
     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. Though
     the above incriminating circumstance was put to the
     appellant in the 313 questioning where he had an              D
     opportunity to explain, except a mere denial there was no
     other ·convincing explanation offered by him. [Para 16]
     [445-F-H; 446-B-C]

          Bheru Singh v. State of Rajasthan (1994) 2 SCC 467:      E
     1994 (1) SCR 559; Sandeep v. State of Uttar Pradesh 2012
     (6) SCC 107: 2012 (5) SCR 952 - referred to.

          2. Besides, there were other circumstances which
     were considered by the trial Court, as well as the High
                                                                   F
     Court. The said circumstances having been found to be
     fully established, the conclusion of the trial Court, as well
     that of the High Court in holding that the chain of
     circumstances 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 G
     well justified. 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.
     [Paras 17, 18] [446-D; 447-G-H; 448-B-C]                      H
    438      SUPREME COURT REPORTS               [2013] 8 S.C.R.


A                        Case Law Reference:
          1994 (1) SCR 559       referred to           Para 11
          2012 (5) SCR 952       referred to           Para 12
                                                                    L.
B     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
  No. 1575 of 2009.

        From the Judgment and Order dated 02.11.2007 of the
    High Court of Patna in CRLA No. 690 of 2005.

c       Rakhi Ray, (AC), Vaibhav Gulia, S.S. Ray, for th~
    Appellant.

          Chandan Kumar, Gopal Singh, for the Respondent.

          The Judgment of the Court was delivered by
D
      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 Criminal Appeal
  No.690 of 2005. The said appeal was disposed of along with
E 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
F 21.04.2002 at about 8.15 p.m., for visiting a local Mela, 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 submitted by PW-
  6 at the police station on 22.04.2002 at 10.30 a.m. briefly
G narrating the circumstances in which the 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
H FIR in P.S. Case No.39/2002 and proceeded with the
    440     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   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
B   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 guilty of charges
    under Sections 302 and 201 IPC.
c      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
D circumstantial evidence, the reliance placed upon by the trial
  Court, as 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 on
  the appellant is liable to be set aside. The learned counsel was
E not able to address any other submission, while 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
F 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
G as the High Court have only placed reliance 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
H   Division Bench, as well as the trial Court and all other material
      ANUJ KUMAR GUPTA @ SETHI GUPTA v. STATE OF .439
       BIHAR [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
      investigation. The investigation was carried out by PW-9, the A
      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 was arrested. The
      appellant made a confessional statement before the police on B
      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 Manda! @ Arun Kumar Manda! was also arrested, while
      another accused Sudhir Kumar Manda! could not be c
      apprehended on 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
      prosecution proceeded against the appellant along with the
      other accused, namely, Girendra Gupta, Arun Mandal and D
      Sudhir Manda! for offences under Sections 364(A), 302, 201
      and 12o~s 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, . E
      the appellant and the other accused made ~ total denial. The
      trial Court based on the evidence placed before it reached the
      conclusion that the appellant and the co-accused Arun Manda!,
      were guilty of the offences falling under Sections 364(A), 302,
      201 and 120-B, IPC and imposed death penalty on them and F
      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.
                                                                       G
            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 being
      Criminal Appeal No.690/2005 and the other appeal preferred
      by the co-accused Arun Mandal in Criminal Appeal No.606/ H


--.
    442       SUPREME COURT REPORTS                   [2013] 8 S.C.R.


A         begun. The expression "accused of any offence" in Section
          25 would cover the case of an accused who has since
          been put on trial, whether or not at the time when he made
          the confessional statement, he was under arrest or in
          custody as an accused in that case or not. Inadmissibility
B         of a confessional statement made to a police officer under
          Section 25 of the Evidence Act is based on the ground of
          public policy. Section 25 of the Evidence Act not only bars
          proof of admission of an offence by an accused to a police
          officer or made by him while in the custody of a police
c         officer but also the admission contained in the
          confessional statement of all incriminating facts relating to
          the commission of an offence. Section 26 of the Evidence
          Act deals with partial ban to the admissibility of
          confessions made to a person other than a police officer
          but we are not concerned with it in this case. Section 27
D
          of the Evidence Act is in the nature of a proviso or an
          exception, which partially lifts the ban imposed by
          Sections 25 and 26 of the Evidence Act and makes
          admissible so much of such information, whether it
          amounts to a confession or not, as relates to the fact
E         thereby discovered, when made by a person accused of
          an offence while in police custody. Under Section 164
          CrPC a statement or confession made in the course of an
          investigation, may be recorded by a Magistrate, subject
          to the safeguards impos&d by the section itself and can
F         be relied upon at the trial.

          19. From a careful perusal of this first information report
          we find that it discloses the motive for the murder and the
          manner in which the appellant committed the six murders.
G         The appellant produced the bloodstained sword with which
          according to him he committed the murders. In our opinion
          the first information report Ex. P-42, however is not a wholly
          confessional statement, but only that part of it is
          admissible in evidence which does not amount to a
H         confession and is not hit by the provisions of Sectidn 25
ANUJ KUMAR GUPTA@ SETHI GUPTA v. STATE OF 441
BIHAR [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
papers, we find that the only contention of the learned counsel      A
for the appellant was that merely based on 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.
                                                                     B
      9. When we examine the case on hand, we find that there
was 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      C
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 wish      D
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       E
is well settled, which can be succinctly stated by making
reference to an earlier decision of this Court in 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:

     "16. A confession or an admission is evidence against the F
     maker of it so long as its admissibility is not excluded by
     some provision of law. Provisions of Sections 24 to 30 of
     the Evidence Act and of Section 164 of the Code of
     Criminal Procedure deal with confessions. By virtue of the
     provisions of Section 25 of the Evidence Act, a confession -G
     made to a police officer under no circumstance is
     admissible in evidence against an accused. The section
     deals with confessions made not only when the accused
     was free and not in police custody but also with the one
     made by such a person before any investigation had H
ANUJ KUMAR GUPTA @ SETHI GUPTA v. STATE OF 443
BIHAR [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

    of the Evidence Act. The relationship of the appellant with     A
    the deceased; the motive for commission of the crime and
    the presence of his sister-in-law PW 11 do not amount to
    the confession of committing any crime. Those statements
    are non-confessional in nature and can be used against
    the appellant as evidence under Section 8 of the Evidence       B
    Act. The production and seizure of the sword by the
    appellant at the police station which was bloodstained, is
    a/so saved by the provisions of the Evidence Act.
    However, the statement that the sword had been used to
    commit the murders as well as the manner of committing          c
    the crime is clearly inadmissible in evidence. Thus, to the
    limited extent as we have noticed above and save to that
    extent only the other portion of the first information report
    Ex. P-42 must be excluded from evidence as the rest of
    the statement amounts to confession of committing the
                                                                    0
    crime and is not admissible in evidence."

                                            (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)       E
SCC 107. In para 52, the legal position as regards the
admissibility of some part of the statement of the accused,
which can be treated as admission has been explained as
under in para 52:

    52. We find force in the submission of the learned Senior
                                                                    F
    Counsel for the State. It is quite common that based on
    admissible portion of the statement of the accused
    whenever and wherever recoveries are made, the same
    are admissible in evidence and it is for the accused in·
    those situations to explain to the satisfaction of the court G
    as to the nature of recoveries and as to how they came
    into possession or for planting the same at the places
    from where they were recovered. Similarly, this part of the
    statement which does not in any way implicate the
    accused but is mere statement of facts would only amount        H
    444      SUPREME COURT REPORTS                 [2013] 8 S.C.R.

A         to mere admissions which can be relied upon for
          ascertaining the other facts. which are intrinsically
          connected with the occurrence, while at the same time, the
          same would not in any way result in implicating the
          accused in the offence directly.
B
                                                (Emphasis added)

       13. Since the confessional statement was made before the
  investigating officer (PW-9), it is necessary to note what exactly
  was the confession stated to have been made, which enabled
C the 10 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
  Manda! who also made a confession, which was identical to
D the one made by the appellant. Though PW-9 would refer to
  very many statements alleged to have been admitted by the
  appellant and co-accused Arun Manda!, in our considered
  opinion, the only part of the admission, which can be noted and
  accepted as admissible in the evidence related to the
E 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,
F 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 body of the
  deceased Chhotu was recovered from the water of Maldiha
  Dhar. PW-9 stated that since Maldiha Dhar (stream) fell within
G the jurisdiction of Barhara P.S., of district Pumea, 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 the police station of his jurisdiction
H and the same was sent for carrying out necessary post mortem.
ANUJ KUMAR GUPTA @ SETHI GUPTA v. STATE OF 445
BIHAR [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
PW-4 in his evidence also corroborated the above said version        A
of PW-9 by stating that he proceeded along with PW-9, as
guided by the appellant and co accused Arun Mandal and that
they 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          B
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           C
version of PW-4, it has come to light that at the instance of the
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           D
of the confessional statement as recorded by PW-9, cannot be
said to straightaway implicate the 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 co-accused, as to where the dead body of           E
the deceased was lying, which was exclusively within the
knowledge of the appellant, was certainly admissible by virtue
of the application of Section 8, read along with Section 27 of
the Evidence Act.
                                                                     F
       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   G
is a very clinching circumstance in the 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            H
    446      SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A 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 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
B said admission. Unfortunately though the above incriminating
  circumstance was put to the appellant in 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
C 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 High Court, were sufficient to
D 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:

E         (i) PW-1 referred to the factum of the appellant attempting
          to ride a motorcycle in a narrow lane opposite to the shop
          of 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
F         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;
G
          (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
H         though she could not identify any of them due to darkness.
ANUJ KUMAR GUPTA@ SETHI GUPTA v. STATE OF 447
BIHAR [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     (iv) The deceased who went to attend the Me/a at about           A
     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 re.covered from Maldiha
     Dhar (a river stream) based on the identification of the
     appellant.                                                       B

     (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.
                                                                      c
     (vii) The postmortem report of PW-10 confirms that the
     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.             D

     (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.                       E

     (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             F
     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.

      18. The above circumstances having been found to be fully       G
established, the conclusion of the trial Court, as well that of the
High Court in holding that the chain of circumstances 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          H
   448      SUPREME COURT REPORTS                [2013] 8 S.C.R.


A 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
B do not find any scope tci dislodge the findings of the Courts
  below. We are, 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 frial Court, was perfectly justified and
C we do not find any good· grounds to interfere-with the same.
  The appeal fails and the same is dismissed. ·

   B.B.B.                                     Appeal Dismissed.