CHANDRAPAL VS STATE OF CHHATTISGARH

 CHANDRAPAL VS STATE OF CHHATTISGARH

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 378 OF 2015
CHANDRAPAL …APPELLANT(S)
VERSUS
STATE OF CHHATTISGARH …RESPONDENT(S)
(EARLIER M.P.)
 J U D G M E N T
BELA M. TRIVEDI, J.
1. The instant appeal is directed against the judgment and order of
conviction and sentence passed by the High Court of Chhattisgarh at
Bilaspur in Criminal Appeal No. 1812 of 1998.
2. As per the case of prosecution, the deceased Kumari Brindabai was the
daughter of Bhagirathi Kumhar who belonged to the caste Kumhar. The
deceased Kanhaiya Siddar was the resident of village Panjhar and
belonged to the caste Siddar (Gaur). There was a love affair going on
1
between Kumari Brindabai and Kanhaiya Siddar, which the said
Bhagirathi and his brother Chandrapal did not approve. On 02.12.1994,
both Kumari Brinda and Kanhaiya went missing. A search was made,
however, no missing report was lodged. On 11.12.1994, at about 09:00
am, Lodhu (PW-2) went to Kajubadi (Cashew Nursery) and saw that the
dead bodies of the deceased Kumari Brinda and Kanhaiya were hanging
on a cashew tree. He therefore came back and informed the Sarpanch
Baran Singh Thakur. Their bodies were in decomposed state and were not
identifiable, however the informant Chandrapal identified the dead bodies.
Thereafter, Merg intimations were lodged by Chandrapal and Bholasingh
(PW-4) at about 16:00 hrs. and 16:05 hrs. on 11.12.1994, which were
registered at no. 67/94 and 68/94 respectively. The dead bodies were sent
for postmortem. In the postmortem report of the deceased Kumari Brinda
(Ex. P/22), conducted by Dr. R.K. Singh (PW-13), it was opined that the
ligature mark over her neck was antemortem in nature, and the cause of
death appeared to be Asphyxia due to hanging. In the postmortem report
(Ex. P/23) of the deceased Kanhaiya also, it was opined that the cause of
death appeared to be Asphyxia due to hanging. In both the postmortem
reports, it was stated that the death had occurred within 8 to 10 days and
the nature of the death was suicidal. As per the further case of the
prosecution, on 02.12.1994, the deceased Kanhaiya was sitting at the
premises of village Panchayat, where some TV programme was going on.
2
He, thereafter, left the said place and went to the hand pump for rubbing
his axe (gandasu). At that time the accused Chandrapal called Kanhaiya
and took him to his house, shut him down in the room and all the accused
i.e., Bhagirathi, Chandrapal, Mangal Singh and Videshi in furtherance of
their common intention pressed his neck and committed his murder.
Thereafter, the accused Mangal Singh and Videshi committed the murder
of Kumari Brinda. After committing their murders, they kept the dead
bodies of Kanhaiya and Brinda in the house upto 04.12.1994 and then
took the dead bodies to Kajubadi. The accused thereafter hanged the dead
bodies of both the deceased by tying the noose in their necks with the tree
of cashew in the Kajubadi and attempted to give it the shape of their
having committed suicide.
3. The Sessions Court framed the charge against the four accused i.e.,
Bhagirathi, Chandrapal, Mangal Singh and Videshi, for the offence under
section 302, in the alternative under section 302 read with section 34 of
IPC. Each of the accused was also separately charged for the offence
under section 201 read with section 34 of IPC, as also for the offence
under section 3(2)(v) of the Schedule Caste and Schedule Tribe
(Prevention of Atrocities), Act, 1989. The prosecution to bring home the
charges levelled against the accused had examined 16 witnesses and also
adduced documentary evidence. The First Additional Sessions Judge,
3
Raipur (Chhattisgarh), after the appreciation of the evidence on record,
vide the judgement and order dated 03.08.1998, acquitted all the accused
from the charges levelled against them under section 3(2)(v) of the SC ST
Act, however, found them guilty of the offences under section 302 and
201 read with section 34 of IPC. They all were sentenced to imprisonment
for life for the offence under section 302 read with section 34 of IPC, and
were directed to undergo rigorous imprisonment for a period of two years
for the offence under section 201 read with section 34 of IPC.
4. Being aggrieved by the judgement and order passed by the Sessions
Court, the accused Bhagirathi, Chandrapal and Mangal Singh preferred an
appeal being the Criminal Appeal No. 1812 of 1998 and the accused
Videshi preferred an appeal being Criminal Appeal No. 2005 of 1998
before the High Court of Chhattisgarh at Bilaspur. The High Court vide
the impugned judgement and order, confirmed the conviction and
sentence imposed on the accused no. 2 Chandrapal for the offence under
section 302 read with section 34, and under section 201 read with section
34 of IPC and accordingly dismissed the Criminal Appeal No. 1812 of
1998 qua the said accused Chandrapal. However, the High Court set aside
the conviction and sentence imposed on the accused Bhagirathi Kumhar,
Mangal Singh and Videshi for the offence under section 302 read with
section 34 of IPC, nonetheless confirmed their conviction for the offence
4
under section 201 read with section 34 of IPC, and sentenced all of them
to the period already undergone by them. Accordingly, the Criminal
Appeal No. 1812 of 1998 and 2005 of 1998 stood partly allowed. The
present appellant-accused Chandrapal being aggrieved by the said
judgement and order passed by the High Court has preferred the present
appeal.
5. The learned counsel Mr. Akshat Shrivastava appearing for the appellant
taking the Court to the evidence of the witnesses examined by the
prosecution, more particularly of PW-2, PW-4, PW-5 and PW-6,
submitted that there were major contradictions in their evidence as regards
the alleged extra judicial confession made by the accused Videshi before
them. Relying upon various decisions of this Court, he submitted that
conviction cannot be based on the extra judicial confession made by the
co-accused, which is of a very weak kind of evidence. Repelling the
theory of ‘Last seen theory’, he submitted that the statement of PW1
Dhansingh who had allegedly last seen Kanhaiya, having been called by
the present appellant, was recorded after 4 months of the incident. Even as
per the case of the prosecution, the said incident of calling Kanhaiya by
the appellant was 10 days prior to the date on which the dead bodies were
found in the Kajubadi, and there being long time gap between the day the
deceased was allegedly last seen with the appellant and the day when his
5
dead body was found, it was very risky to convict the appellant solely on
such evidence. He further submitted that the doctor who had performed
the postmortem had also opined that the cause of death was asphyxia as a
result of hanging and the nature was suicidal. Thus, in absence of any
clear or cogent evidence against the appellant, both the courts had
committed gross error in convicting the appellant.
6. However, the learned counsel appearing for the respondent State
submitted that there being concurrent findings recorded by the Sessions
Court as well as High Court with regard to the guilt of the appellant, the
Court may not interfere with the same. While fairly agreeing that an extra
judicial confession would be a weak piece of evidence, he submitted that
there was other corroborative evidence adduced by the prosecution which
conclusively proved the entire chain of circumstances leading to the guilt
of the present appellant. According to him, after the alleged incident on
02.12.1994, till the dead bodies were recovered on 11.12.1994, nobody
had seen the deceased Brinda and Kanhaiya in the village, and therefore
the evidence of PW-1 Dhansingh who had seen Kanhaiya lastly with the
present appellant was required to be believed, as believed by the courts
below. According to him, the concerned doctor who had carried out the
postmortem had also opined that the death of the deceased could be
homicidal death also.
6
7. At the outset, it may be stated that undisputedly the entire case of the
prosecution rested on the circumstantial evidence, as there was no eye
witness to the alleged incident. The law on the appreciation of
circumstantial evidence is also well settled. The circumstances concerned
“must or should be” established and not “may be” established, as held in
Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1
. The
accused “must be” and not merely “may be” guilty before a court can
convict him. The conclusions of guilt arrived at must be sure conclusions
and must not be based on vague conjectures. The entire chain of
circumstances on which the conclusion of guilt is to be drawn, should be
fully established and should not leave any reasonable ground for the
conclusion consistent with the innocence of the accused. The five golden
principles enumerated in case of Sharad Birdhichand Sarda Vs. State of
Maharashtra2
laid down in para 152 may be reproduced herein for ready
reference:
“152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may
be” established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973
1 (1973) 2 SCC 793
2 (1984) 4 SCC 116
7
SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations
were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
8. It is also needless to reiterate that for the purpose of proving the charge for
the offence under Section 302, the prosecution must establish “homicidal
death” as a primary fact. In order to convict an accused under Section 302,
the court is required to first see as to whether the prosecution has proved
the factum of homicidal death. So far as the facts of present case are
concerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out
the post-mortem of the deceased Brinda and Kanhaiya, would be most
relevant in this regard. He had stated in his deposition before the court,
inter alia, that on 12.12.1994, he had carried out the post-mortem of
Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias
Chandrashekhar Gaur. The dead bodies of both the deceased were in
decomposed state. He had further stated that the knot mark present on the
8
neck of the deceased Brinda was ante-mortem, and that the cause of death
appeared to be Asphyxia due to hanging. The death had taken place within
8 to 10 days and the nature of death was Suicidal. The said Doctor had
stated similar facts for Kanhaiya that the dead body of Kanhaiya was
found bent towards left side from his neck and a ligature mark having size
10” x 5” was present on the neck. The cause of death appeared to be
Asphyxia due to hanging and the death appeared to have taken place
within 8 to 10 days. He had further stated that there was neither fracture
found on the dead bodies of the deceased, nor any blood clots were found,
nor any injuries were found, and therefore he had opined that the cause of
death was hanging which normally is found in case of suicide. He
specifically stated that as the dead bodies were decomposed, he could not
express any opinion whether it was a homicidal death. In the crossexamination by the learned counsel for the accused, he had categorically
admitted that he did not find any symptom of homicidal death, nor he had
opined in his report given on 12.12.1994 that the deaths of the deceased
were homicidal. Of course, he had stated that on the basis of the report
submitted on 30.04.1995, an inference could be drawn that the deaths
could be homicidal deaths.
9. It is worth noting that the High Court in the impugned judgment has not
considered at all the evidence of Dr. R.K. Singh to come to the conclusion
9
whether the deaths were homicidal deaths, before confirming the
conviction of the appellant for the offence under Section 302 IPC.
Unfortunately, the Sessions Court also in para 23 of its judgment observed
that the statement of Dr. R.K. Singh was not important because he had
expressed an opinion which was neither beneficial to the prosecution nor
to the defence. In our opinion, when the case of the prosecution rested on
circumstantial evidence, it was imperative for the prosecution to prove
beyond reasonable doubt that the deaths of the deceased were homicidal
deaths and not suicidal, more particularly when the line of defence of the
accused was that the Brinda and Kanhaiya had committed suicide, and
when Dr. R.K. Singh who had carried out their post-mortems had also
opined that the nature of their deaths was Suicidal.
10. This takes the court to examine the incriminating evidence relied upon by
the prosecution, that is the extra judicial confession made by the coaccused Videshi. According to the prosecution, the accused Videshi had
made self-inculpatory confession before the PW-4 Bhola Singh and also
made confession before the PW-5 Chandrashekhar, PW-6 Baran Singh
and PW-7 Dukaluram, involving the other accused including the present
appellant. The prosecution had also produced an affidavit of Videshi (ExP/11) allegedly affirmed before the Notary. Though the Sessions Court
relying upon the said evidence of extra judicial confession of Videshi
10
convicted all the four accused, the High Court partly believing the said
extra judicial confession, acquitted the three accused i.e., Bhagirathi,
Mangal Singh and Videshi from the charges levelled against them under
Section 302 read with 34 of IPC, however convicted them for the offence
under Section 201 read with 34 by holding that the said accused had tried
to cause disappearance of the evidence.
11. At this juncture, it may be noted that as per Section 30 of the Evidence
Act, when more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting himself
and some other of such persons is proved, the court may take into
consideration such confession as against such other person as well as
against the person who makes such confession. However, this court has
consistently held that an extra judicial confession is a weak kind of
evidence and unless it inspires confidence or is fully corroborated by
some other evidence of clinching nature, ordinarily conviction for the
offence of murder should not be made only on the evidence of extra
judicial confession. As held in case of State of M.P. Through CBI & Ors.
Vs. Paltan Mallah & Ors.3
, the extra judicial confession made by the coaccused could be admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence against the accused, the
extra judicial confession allegedly made by the co-accused loses its
3 (2005) 3 SCC 169
11
significance and there cannot be any conviction based on such extra
judicial confession of the co-accused.
12. In Sahadevan & Anr. Vs. State of Tamil Nadu4
, it was observed in para
14 as under:
“14. It is a settled principle of criminal jurisprudence that
extra-judicial confession is a weak piece of evidence.
Wherever the court, upon due appreciation of the entire
prosecution evidence, intends to base a conviction on an
extra-judicial confession, it must ensure that the same
inspires confidence and is corroborated by other prosecution
evidence. If, however, the extra-judicial confession suffers
from material discrepancies or inherent improbabilities and
does not appear to be cogent as per the prosecution version,
it may be difficult for the court to base a conviction on such a
confession. In such circumstances, the court would be fully
justified in ruling such evidence out of consideration.”
The said ratio was also reiterated and followed by this court in
cases of Jagroop Singh Vs. State of Punjab5
, S.K. Yusuf Vs. State of
West Bengal6
 and Pancho Vs. State of Haryana7
, wherein it has been
specifically laid down that the extra judicial confession is a weak evidence
by itself and it has to be examined by the court with greater care and
caution. It should be truthful and should inspire confidence. An extra
judicial confession attains greater credibility and evidentiary value if it is
supported by chain of cogent circumstances and is further corroborated by
other prosecution evidence. In the instant case it is true that the coaccused Videshi had allegedly made self-inculpatory extra judicial
4 (2012) 6 SCC 403
5 (2012) 11 SCC 768
6 (2011) 11 SCC 754
7 (2011) 10 SCC 165
12
confession before the PW-4 Bhola Singh, and had made extra judicial
confession before the other witnesses i.e., PW-5 Chandrashekhar, PW-6
Baran Singh Thakur and PW-7 Dukaluram stating, inter alia, that the
other three accused i.e., Bhagirathi, Chandrapal and Mangal Singh had
committed the murder and he (i.e. Videshi) was asked to assist them in
disposing the dead bodies and concealing the evidence. However, the
High Court, considering the inconsistency between the said two extra
judicial confession made by the co-accused Videshi, did not find it safe to
convict the other accused i.e., Bhagirathi, Mangal Singh and Videshi
himself, and the High Court surprisingly considered the said extra judicial
confession made by Videshi as an incriminating circumstance against the
appellant Chandrapal for convicting him for the offences charged against
him. In our opinion if such weak piece of evidence of the co-accused
Videshi was not duly proved or found trustworthy for holding the other
co-accused guilty of committing murder of the deceased Brinda and
Kanhaiya, the High Court could not have used the said evidence against
the present appellant for the purpose of holding him guilty for the alleged
offence.
13. This takes the court to examine the theory of “Last seen together”
propounded by the prosecution. As per the case of prosecution, PW-1
Dhansingh had seen the accused Chandrapal calling the deceased
13
Kanhaiya and taking him inside his house on the fateful night. Apart from
the fact that the said Dhansingh had not stated about the time or date when
he had lastly seen Kanhaiya with Chandrapal, even assuming that he had
seen Chandrapal calling Kanhaiya at his house when he was sitting at the
premises of village panchayat, the said even had taken place ten days prior
to the day when the dead bodies of the deceased were found. The time gap
between the two incidents i.e., the day when Dhansingh saw Chandrapal
calling Kanhaiya at his house and the day Kanhaiya’s dead body was
found being quite big, it is difficult to connect the present appellant with
the alleged crime, more particularly when there is no other clinching and
cogent evidence produced by the prosecution.
14. In this regard it would be also relevant to regurgitate the law laid down by
this court with regard to the theory of “Last seen together”.
15. In case of Bodhraj & Ors. Vs. State of Jammu and Kashmir8
, this court
held in para 31 that:
“31. The last-seen theory comes into play where the time-gap
between the point of time when the accused and the deceased
were last seen alive and when the deceased is found dead is
so small that possibility of any person other than the accused
being the author of the crime becomes impossible….”
16. In Jaswant Gir Vs. State of Punjab9
, this court held that in absence of any
other links in the chain of circumstantial evidence, the accused cannot be
8 (2002) 8 SCC 45
9 (2005) 12 SCC 438
14
convicted solely on the basis of “Last seen together”, even if version of
the prosecution witness in this regard is believed.
17. In Arjun Marik & Ors. Vs. State of Bihar10
, It was observed that the only
circumstance of last seen will not complete the chain of circumstances to
record the finding that it is consistent only with the hypothesis of the guilt
of the accused, and therefore no conviction on that basis alone can be
founded.
18. As stated hereinabove, in order to convict an accused under Section 302
IPC the first and foremost aspect to be proved by prosecution is the
factum of homicidal death. If the evidence of prosecution falls short of
proof of homicidal death of the deceased, and if the possibility of suicidal
death could not be ruled out, in the opinion of this court, the appellantaccused could not have been convicted merely on the basis of the theory
of “Last seen together”.
19. Ergo, having regard to the totality of evidence on record, the court is of
the opinion that the High Court had committed gross error in convicting
the appellant-accused for the alleged charge of 302 read with 34 of IPC,
relying upon a very weak kind of evidence of extra judicial confession
allegedly made by the co-accused Videshi, and relying upon the theory of
“Last seen together” propounded by the PW-1 Dhansingh. It is also
10 1994 Supp (2) SCC 372
15
significant to note that no evidence worth the name as to how and by
whom the deceased Brinda was allegedly murdered was produced by the
prosecution. Under the circumstances, it is required to be held that the
prosecution had miserably failed to bring home the charges levelled
against the appellant-accused beyond reasonable doubt. The suspicion
howsoever strong cannot take place of proof.
20. For the reasons stated above, the appeal deserves to be allowed and is
accordingly allowed. The appellant-accused Chandrapal is acquitted from
the charges levelled against him. He is directed to be set free forthwith.
21. Office is directed to do the needful and to send the copy of the order to the
concerned jail authority at the earliest.
………………………. J.
[DHANANJAYA Y. CHANDRACHUD]
 …..................................J.
 [BELA M. TRIVEDI]
NEW DELHI;
27.05.2022
16
ITEM NO.1501 COURT NO.2 SECTION II-C
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
Criminal Appeal No(s).378/2015
CHANDRAPAL Appellant(s)
 VERSUS
STATE OF CHHATTISGARH (EARLIER M.P.) Respondent(s)
Date : 27-05-2022 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Akshat Shrivastava, AOR
Ms. Pooja Shrivastava, Adv.

For Respondent(s) Mr. Sourav Roy, Dy AG
Mr. Mahesh Kumar, Adv.
Mr. Kaushal Sharma, Adv.
Ms. Devika Khanna, Adv.
Mrs. V D Khanna, Adv.
 for Vmz Chambers, AOR
1 Hon’ble Ms Justice Bela M Trivedi pronounced the judgment of the Bench
comprising Hon’ble Dr Justice Dhananjaya Y Chandrachud and Her
Ladyship.
2 In terms of the signed reportable judgment, the appeal is allowed. The
appellant-accused Chandrapal is acquitted from the charges levelled
against him. He is directed to be set free forthwith.
3 Office is directed to do the needful and to send the copy of the order to
the concerned jail authority at the earliest.
4 Pending application, if any, stands disposed of.
 (SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
 DEPUTY REGISTRAR COURT MASTER
(Signed reportable judgment is placed on the file)
17

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