NIKHIL CHANDRA MONDAL VERSUS STATE OF WEST BENGAL
NIKHIL CHANDRA MONDAL VERSUS STATE OF WEST BENGAL
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2269 OF 2010
NIKHIL CHANDRA MONDAL ...APPELLANT(S)
VERSUS
STATE OF WEST BENGAL ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The appeal challenges the judgment and order dated
15th December 2008 passed by the High Court at Calcutta in
Government Appeal No. 38 of 1987, thereby reversing the
judgment and order dated 31st March 1987 passed by the
Additional Sessions Judge, 4th Court, Burdwan (hereinafter
referred to as “the trial court”), vide which the trial court had
acquitted the appellant for the charge under Section 302 of
the Indian Penal Code, 1860 (for short, “IPC”). Vide the
impugned judgment and order, the Division Bench of the
High Court convicted the appellant for the offence punishable
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under Section 302 of the IPC and sentenced him to undergo
imprisonment for life and a fine of Rs.2,000/- and in default
of payment of fine, to undergo further imprisonment for a
period of six months.
2. The prosecution case, in brief, as could be gathered
from the material placed on record is thus:
On 11th March 1983, UD Case No. 7/83 was
registered at PS Ketugram that the dead body of an unknown
married woman aged about 25 years was lying in a field on
the side of the railway track at Ambalgisan Railway Station.
The lady appeared to have been murdered by a sharp cutting
weapon. On the basis of the aforesaid, Police had begun the
investigation. During investigation, it was revealed that the
appellant, accompanied his wife (the deceased) and their son
had gone to attend the Fullara Mela organised in Lavpur
Gram Panchayat and thereafter, the deceased was alleged to
be missing from the said Mela. During the investigation, it
was also revealed that the appellant had confessed before
Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai
Ch. Saha (PW-12) that he had murdered the deceased with a
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bhojali (the murder weapon) at that very spot where the body
of the deceased was found.
3. Upon completion of the investigation, a charge-sheet
came to be filed before the Chief Judicial Magistrate,
Burdwan under Section 302 of the IPC against the appellant.
The case was committed to the Court of Sessions. The
appellant pleaded not guilty and claimed to be tried. At the
conclusion of the trial, the trial court vide judgment and
order dated 31st March 1987 acquitted the appellant from the
charges levelled against him. Being aggrieved thereby, the
State preferred an appeal before the High Court. By the
impugned judgment and order, the High Court allowed the
appeal and convicted and sentenced the appellant as
aforesaid. Hence, the present appeal.
4. We have heard Ms. Rukhsana Choudhury, learned
counsel appearing on behalf of the appellant and Ms. Astha
Sharma, learned counsel appearing on behalf of the State.
5. Ms. Choudhury submits that the High Court has
grossly erred in reversing the well-reasoned judgment and
order of acquittal passed by the trial court. She submits that
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the trial court had rightly disbelieved the testimonies of
Manick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai
Ch. Saha (PW-12) being inconsistent with each other. It is
therefore submitted that the finding of the trial court
disbelieving the extra-judicial confession alleged to have been
made to these three witnesses could not be said either to be
perverse or illegal/impossible. She further submits that in
any case the interference in a finding of acquittal would not
be warranted unless the finding is found to be perverse or
illegal/impossible. She therefore submits that the impugned
judgment and order is liable to be set aside.
6. Ms. Sharma, on the contrary, submits that the High
Court has rightly found that the extra-judicial confession
made before PWs 10 to 12 is trustworthy, reliable and
cogent. She therefore submits that the High Court has
rightly reversed the judgment and order of acquittal which
was recorded disbelieving the cogent and reliable testimonies
of these three witnesses. She further submits that, apart
from the extra-judicial confession, the prosecution has also
established the recovery of the blood-stained clothes and the
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weapon used by the appellant in commission of the crime.
This circumstance corroborates the testimonies of PWs 10 to
12.
7. With the assistance of the learned counsel for the
parties, we have scrutinized the entire evidence.
8. Undisputedly, the present case rests on
circumstantial evidence. The law with regard to conviction in
the case of circumstance evidence is very well crystalised in
the judgment of this Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra1
.
9. We may gainfully refer to the following observations
of this Court in the case of Sharad Birdhichand Sarda
(supra):
“153. 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
1 (1984) 4 SCC 116
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held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case
based on circumstantial evidence.”
10. It can thus be seen that this Court has held that the
circumstances from which the conclusion of guilt is to be
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drawn should be fully established. It has been held that the
circumstances concerned “must or should” and not “may be”
established. It has been held that there is not only a
grammatical but a legal distinction between “may be proved”
and “must be or should be proved”. It has been held that 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. It has been held that the
circumstances should be of a conclusive nature and
tendency and they should exclude every possible hypothesis
except the one sought to be proved, and that there must be a
chain of evidence so complete so 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.
11. It is a settled principle of law that however strong a
suspicion may be, it cannot take place of a proof beyond
reasonable doubt. In the light of these guiding principles, we
will have to consider the present case.
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12. The prosecution case rests basically on the extrajudicial confession alleged to have been made by the
appellant before Manick Pal (PW-10), Pravat Kumar Misra
(PW-11) and Kanai Ch. Saha (PW-12).
13. The trial court observed that where the prosecution
case is entirely based on extra-judicial confession and the
prosecution seeks conviction of the accused on that extrajudicial confession, the evidence of the witnesses before
whom the alleged confessional statement was made, requires
a greater scrutiny to pass the test of credibility.
14. The trial court found that the evidence of PWs 10 to
12 were contradictory to each other. It is further to be noted
that the trial court had the benefit of witnessing the
demeanour of these witnesses. It found the evidence of these
witnesses not to be trustworthy.
15. It is a settled principle of law that extra-judicial
confession is a weak piece of evidence. It has been held that
where an extra-judicial confession is surrounded by
suspicious circumstances, its credibility becomes doubtful
and it loses its importance. It has further been held that it is
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well-settled that it is a rule of caution where the court would
generally look for an independent reliable corroboration
before placing any reliance upon such extra-judicial
confession. It has been held that there is no doubt that
conviction can be based on extra-judicial confession, but in
the very nature of things, it is a weak piece of evidence.
Reliance in this respect could be placed on the judgment of
this Court in the case of Sahadevan and Another v. State
of Tamil Nadu2
. This Court, in the said case, after referring
to various earlier judgments on the point, observed thus:
“16. Upon a proper analysis of the abovereferred
judgments of this Court, it will be appropriate to
state the principles which would make an extrajudicial confession an admissible piece of evidence
capable of forming the basis of conviction of an
accused. These precepts would guide the judicial
mind while dealing with the veracity of cases where
the prosecution heavily relies upon an extra-judicial
confession alleged to have been made by the
accused:
(i) The extra-judicial confession is a weak
evidence by itself. It has to be examined
by the court with greater care and
caution.
(ii) It should be made voluntarily and
should be truthful.
(iii) It should inspire confidence.
2 (2012) 6 SCC 403
9
(iv) An extra-judicial confession attains
greater credibility and evidentiary value if
it is supported by a chain of cogent
circumstances and is further
corroborated by other prosecution
evidence.
(v) For an extra-judicial confession to be
the basis of conviction, it should not
suffer from any material discrepancies
and inherent improbabilities.
(vi) Such statement essentially has to be
proved like any other fact and in
accordance with law.”
16. As already discussed hereinabove, the trial court
found the testimonies of PWs 10 to 12 not to be reliable so as
to base the conviction solely on the basis of such testimonies.
Unless such a finding was found perverse, an interference
therewith would not be warranted.
17. The Division Bench of the High Court has relied on
the recovery of the blood-stained clothes and the weapon
which is alleged to have been used by the appellant in
commission of the crime.
18. The trial court disbelieved the recovery of clothes
and weapon on two grounds. Firstly, that there was no
memorandum statement of the accused as required under
Section 27 of the Evidence Act, 1872 and secondly, the
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recovery of the knife was from an open place accessible to
one and all. We find that the approach adopted by the trial
court was in accordance with law. However, this
circumstance which, in our view, could not have been used,
has been employed by the High Court to seek corroboration
to the extra-judicial confession.
19. The scope of interference in an appeal against
acquittal is very well crystalised. Unless such a finding is
found to be perverse or illegal/impossible, it is not
permissible for the appellate Court to interfere with the same.
20. Recently, a three-Judges Bench of this Court in the
case of Rajesh Prasad v. State of Bihar and Another3 has
considered various earlier judgments on the scope of
interference in a case of acquittal. It held that there is
double presumption in favour of the accused. Firstly, the
presumption of innocence that is available to him under the
fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his
3 (2022) 3 SCC 471
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innocence is further reinforced, reaffirmed and strengthened
by the court. It has been further held that if two reasonable
conclusions are possible on the basis of the evidence on
record, the Appellate Court should not disturb the finding of
acquittal recorded by the trial court.
21. We find that the view taken by the trial court could
not be said to be either perverse or illegal/impossible to
warrant interference. The High Court has grossly erred in
interfering with the well-reasoned judgment and order of
acquittal passed by the trial court.
22. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The impugned judgment and order dated 15th
December 2008 passed by the High Court at
Calcutta in Government Appeal No. 38 of 1987
convicting the appellant for the offence punishable
under Section 302 of the IPC is quashed and set
aside; and
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(iii) The judgment and order dated 31st March 1987
passed by the trial court acquitting the appellant
from the charges levelled against him is affirmed.
23. The appellant is directed to be set at liberty forthwith
if not required in any other case.
24. Pending application(s), if any, shall stand disposed
of.
…..….......................J.
[B.R. GAVAI]
…….........................J.
[SANJAY KAROL]
NEW DELHI;
MARCH 03, 2023.
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