Patna High Court
Vibhishan Ram vs The State Of Bihar on 12 February, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.7 of 2019
Arising Out of PS. Case No.-34 Year-1992 Thana- SHIVSAGAR District- Rohtas
======================================================
Sudama Ram s/o Gangdayal Ram Vill-Bishrampur, P.S-Shivsagar,Distt.-
Rohtas at Sasaram
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1444 of 2018
Arising Out of PS. Case No.-34 Year-1992 Thana- SHIVSAGAR District- Rohtas
======================================================
Vibhishan Ram Son of Sri Pati Ram, Resident of Village-Vishrampur, Police
Station-Baddi Sheo Sagar, District-Rohtas.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 7 of 2019)
For the Appellant/s : Mr. Praveen Kumar, Advocate
Mr. Ajay Kumar Singh, Advocate
For the State : Mr. Sujit Kr. Singh, A.P.P.
(In CRIMINAL APPEAL (DB) No. 1444 of 2018)
For the Appellant/s : Mr. Birendra Kumar Singh, Advocate
For the State : Mr. Sri Satya Narayan Prasad, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 12-02-2025
Both the appeals have been filed under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred as
'Code') challenging the judgment of conviction dated 26.09.2018
and order of sentence dated 03.10.2018 passed by learned Fast
Track Court-Ist, Rohtas, Sasaram in Sessions Trial No. 285/93,
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
2/36
arising out of Shivsagar (Baddi) P.S. Case No. 34 of 1992,
whereby the concerned Trial Court has convicted the present
appellants for the offences punishable under Sections 302/34, 201
of the Indian Penal Code and Section 25(A)/27 of the Arms Act
and sentenced them for the offence under Section 302/34 of the
Indian Penal Code to go rigorous imprisonment for life, for
offence under Section 201 of the Indian Penal Code rigorous
imprisonment for three years, for the offence under Section 27 of
the Arms Act rigorous imprisonment for three years. All the
sentences have been directed to run concurrently.
1.1. Since, both these appeals arise out of common
judgment and order, they have been heard together and are being
disposed of by this common judgment.
FACTUAL MATRIX:-
2. The crux of the prosecution case is as under:-
2.1. The informant, on 06.03.1992 at 10:00 p.m., in
presence of his brother and samdhi got his statement recorded at
Baddi Police Station where it has been stated that on 28.02.1992 at
06:30 p.m., his nephews Sudama Ram and Bhabhikshan Ram
came and took his son Dukhan @ Radheshyam Ram with them on
the pretext of hunting, but Dukhan @ Radheshyam Ram
(deceased) did not return home. He searched for Radheshyam Ram
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
3/36
everywhere but could not find him. His nephew Sudama Ram has
also been missing from home since that date and has not returned
home. His nephew Bhabhikshan Ram used to come home
sometimes. He used to enquire about his son but he did not tell
him anything and said that he did not know anything. On
06.03.1992
, at about 09:00 p.m., he caught Bhabhikshan Ram and
interrogated him after beating him upon which he told him that he
along with Sudama Ram had killed his son with a pistol due to
which he died there and when he asked him where he had hidden
the body, he refused to tell and told that Sudama Ram stays hidden
in Sasaram market out of fear and sometimes sends him home to
inform him about the affairs of the village and that is why he had
come. When Bhabhikshan Ram was being brought to the Police
Station with the help of constable Dinesh Singh and chowkidar
Nathuni Paswan, he told on the way that both of them buried the
dead body in the dam of Marichai Bahiyar pond.
2.2. After registration of the F.I.R., the
Investigating Officer started the investigation and, during the
course of the investigation, he had recorded the statement of the
witnesses and thereafter filed the charge-sheet against the
appellants/accused before the concerned Magistrate Court. As the
case was exclusively triable by the Court of Sessions, the learned
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Magistrate committed the same to the Sessions Court where the
same was registered as Sessions Trial No. 285/93.
2.3. Before the Trial Court, the prosecution had
examined following 13 witnesses:-
PW-1 Shankar Dayal Ram
PW-2 Lakshan Paswan
PW-3 Sheogovind Ram
PW-4 Sheopujan Ram
PW-5 Mohit Ram
PW-6 Sheonarayan Ram
PW-7 Rania Devi
PW-8 Shiv Dhobi
PW-9 Dinesh Singh
PW-10 Nathuni Paswan
PW-11 Dr. Ravindra Nath Singh
PW-12 Vasudev Prasad
PW-13 Manmohan Jha Azad
3. In Criminal Appeal (DB) No. 7 of 2019, we
have heard Mr. Praveen Kumar, learned counsel for the appellant
assisted by Mr. Ajay Kumar Singh and Mr. Sujit Kr. Singh, learned
A.P.P. for the Respondent-State.
3.1. In Criminal Appeal (DB) No. 1444 of 2018, we
have heard Mr. Birendra Kumar Singh, learned counsel for the
appellant and Mr. Satya Narayan Prasad, learned A.P.P. for the
Respondent-State.
SUBMISSIONS ON BEHALF OF THE
APPELLANTS:-
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
4. Learned advocates for the appellants submit
that the present is a case of circumstantial evidence and there is no
eye-witness to the occurrence in question. The prosecution has
failed to complete the chain of circumstances from which it can be
said that the appellants have committed the alleged offences.
Thus, the prosecution has failed to prove the case against the
appellants beyond reasonable doubt despite which, the Trial court
has recorded the order of conviction. Hence, the same be quashed
and set aside.
5. Learned counsels would further submit that the
Trial court has placed reliance upon the confessional statement of
the appellants/accused and it has been held that, on the basis of the
said confessional statement, dead body of the deceased was
discovered and the pistol which was used in the commission of the
crime was also discovered at his instance. It is submitted that
relying upon the said confessional statement of the appellant
Vibhishan Ram, the order of conviction has been recorded.
6. Learned counsel for the appellant Sudama Ram
has contended that the said appellant has been implicated on the
basis of the so-called confessional statement of co-convict
Vibhishan Ram and there is no other evidence/ material against
the said appellant connecting him with the incident in question. It
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
is further submitted that when there is no other evidence
connecting the said appellant with the incident in question, his
conviction only on the basis of confessional statement of co-
convict cannot be recorded. Learned counsel, therefore, urged that
the appeal filed by the said appellant Sudama Ram be allowed.
7. Learned counsel for the appellant Vibhishan
Ram submits that so far as the said appellant is concerned, the
dead body of the deceased was recovered and even the pistol was
also recovered during night hours on the basis of the so-called
statement of the appellant/ accused. However, from the evidence
led by the prosecution, it transpires that the confessional statement
of the said appellant Vibhishan Ram came to be recorded only on
the next day morning. Thus, before the confessional statement of
the appellant Vibhishan Ram was recorded, there was already
discovery/ recovery of the dead body and the weapon. Learned
counsel, therefore, urged that on this ground the impugned
judgment rendered by the Trial court be set aside.
8. Learned counsel for the appellants have placed
reliance upon the following decisions:-
(i) Bijender @ Mandar Vs. State of Haryana, reported
in (2022) 1 SCC 92.
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
(ii) Surinder Kumar Khanna Vs. Intelligence Officer,
Directorate of Revenue Intelligence, reported in (2018) 8 SCC
271.
SUBMISSIONS ON BEHALF OF THE STATE:-
9. On the other hand, learned A.P.P. has opposed
the present appeals. Learned A.P.P. would submit that though it is
a case of circumstantial evidence, the prosecution has proved the
case against the appellants by leading cogent evidence. The Trial
court has rightly placed reliance upon the confessional statement
of the appellant/ accused Vibhishan Ram. It is submitted that, on
the basis of the confessional statement, the dead body of the
deceased was discovered. Further, the weapon which was used in
commission of the crime was also discovered at the instance of the
appellant Vibhishan Ram. Thus, Trial court has not committed any
error while passing the impugned judgment and order. He,
therefore, urged that no interference is required in the present
appeals.
DISCUSSION WITH REGARD TO THE
DEPOSITION OF THE PROSECUTION WITNESSES:-
10. PW-1 Shankar Dayal Ram and PW-2 Lakshan
Paswan have not supported the case of the prosecution.
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
11. Evidence of PW-3, PW-4, PW-7, PW-8, PW-9
and PW-10 need not be gone into as they have not supported the
case of the prosecution and they have been declared hostile.
12. PW-5 Mohit Ram has deposed, in his
examination-in-chief, that the Inspector recovered the gun from
the shed on the basis of Vibhishan's statement. At that time, he was
also present there. After that, Vibhishan took the Inspector to
Marchaiya Pond. A body was buried there. A layer of soil was
scattered over the body. Vibhishan dug the dead body out. A gun
and the dead body were recovered in front of him and Shiv Govind
and he himself had made his thumb impression on the Seizure List.
12.1. In his cross-examination, he has stated that
dafdar and chowkidar came after some time and took the accused
Vibhishan out of his house and out of the village and questioned
him, on which he told that he and Sudama had killed Dukhan and
buried the body in Marchaiya Pond. At that time, he, Shivnarayan
Govind and other people of the village were also there. After this,
Vibhishan was taken to the Police Station and handed over to the
Police. Vibhishan also told that he had committed the murder 8
days ago. From the Police Station, they first came to the place
where the dead body was buried and sat there. After this,
Vibhishan took the Police with him and gave them the gun after
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
taking it out. After this, on returning, Vibhishan dug out the body.
At the time, when the accused was taking the Police to take out the
gun, there were about 100 people there. Govind Ram, Sheopujan
Ram and Sheonarayan Ram were also among those people. He has
further stated that the gun was not found before him because he
had stopped near the body. When the body was taken out, he saw
the head and half of the face were missing. He did not see any
other injury on the body. He has further stated that Dukhan Ram
did not have a gun.
13. PW-6 Sheonarayan Ram is the father of the
deceased Dukhan. He has stated, in his examination-in-chief, that
six months before the incident, there was a dispute over the
orchard. At that time, Sudama had threatened that he would kill
and bury his son but that dispute was resolved through mutual
reconciliation. Six months' after the dispute was resolved,
Vibhishan took his son with him for hunting. His son did not
return. Then, he asked Vibhishan about his son on which he replied
that he had gone to relative's house. After this, he searched for him
at his relative's place for 8 days but could not find his son. After 8
days, Vibhishan was caught hold by Laxman Prasad, Shankar
Dayal, Haridwar Bind, Jiut Dusadh and many other people. These
people told him that Vibhishan had killed his son. After this,
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Vibhishan was caught by the chowkidar and dafadar and he was
forbidden from killing by the villagers. Sudama left his family in
the village and fled. The chowkidar and dafadar took Vibhishan
along with the villagers. When the inspector at the Police station
questioned Vibhishan, he told him that he had murdered his son
and buried the body at Mirchaiya Bahiyar. On this five policemen
and the villagers went to Mirchaiya Bahiyar. There, Vibhishan told
about the body. The inspector made him sit near the body and took
the accused Vibhishan with him. Vibhishan took the inspector to
the garden where the gun was buried. After this, he also took the
inspector in the jungle where he had killed him. After this,
Vibhishan dug out the body. The inspector prepared the Inquest
Report of the dead body on which he put his thumb impression at
the Police station.
13.1. In his cross-examination, he has stated that the
orchard for which the land dispute took place belongs to the four
of his brothers. He along with his four brothers had made a path in
that orchard. Sudama had beaten his son over that path. He had not
filed any case under Section 107 of the Code regarding that
incident. He did not inform the Police station about the threat
given by Sudama. He has further stated that his son Dukhan never
used to go hunting before. In Para-19, he has stated that when
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Vibhishan and Sudama returned on the next day at 08:00-09:00
a.m., he enquired them about his son and they told him that he
must be coming. He did not inform the Police at that time. He has
further stated that Laxman Paswan, Shankar Dayal, Haridwar Bind
and Jiut Bind are residents of his village. These people had caught
the accused Vibhishan in the south direction inside the village. At
that time, he had gone out of the village in search of his son and
when he came back after 08:00 p.m., he heard a rumour in the
village that his son has been murdered. Upon hearing this, he fell
unconscious near the neem tree located at his door. He has stated,
in Para 24, that Mukhlala, Sheopujan Chamar, his brother Shiv
Govind, Devnarayan Singh & Vijay Singh stayed with him at
Marchaiya Badhar. Some policemen were also there. They sat
there for about 2-3 hours. Then, people reached there after
recovering the gun. Policemen, dafadar and chowkidar came back
after recovering the gun. He saw the gun which was about two and
a half cubits long. In Para-30, he has stated that he had seen the
dead body. The flesh on one side of the cheek was missing and the
teeth etc. were broken. Further, he has stated that he did not tell the
inspector that there was an altercation over the orchard, six months
before the incident. At that time, Sudama threatened him that he
would kill and bury his son, but that dispute ended through
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
reconciliation. Further, he has stated that he told the inspector that
when he asked Vibhishan about his son, he told that his son had
gone to some relative's house.
14. PW-11 Dr. Ravindra Nath Singh has deposed
that, on 7th March 1992, he was posted at Sadar Hospital, Sasaram
as a Medical Officer. He performed the post-mortem examination
on the dead body at 04:15 p.m and noted the following:-
"1. The whole body was smeared with dust and
mud, pilling of the skin over the body. The body was in stage
of early decomposition.
2. Following ante-mortem wound were found-
(i) Lacerated wound 1" x 1" x brain deep over
right side of skull, near right margin was inverted. It was
wound of entry.
(ii) Lacerated wound with averted margin 2" x 2"
x brain deep just above right angle of mouth (The wound of
exit).
Both wounds are continuous and communicating
to each other. Skin and muscle thrown of upper angle of
mouth. The injury was caused by fire arm.
3. The death was due to injury over skull and brain
within 24 to 72 hours.
4. The P.M. Report with carbon copy in same
process was prepared and signed by him. The carbon copy of
P.M. Report attached in P.M. Report is in his pen and
signature. P.M. Report is marked Ext. 2."
14.1. In his cross-examination, he has stated that the
dead body started to decompose, however the muscles were intact
and the injuries found were caused by only one shot.
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
15. PW-12 Vasudev Prasad is the Investigating
Officer who was posted as SHO at Baddi Police Station on
29.01.1992. On that day, he took over the charge of the
investigation. Thereafter, as per the instructions of the
Superintendent of Police, he filed a supplementary charge-sheet
against Ganga Dayal Ram, Brijbhar Ram, Tengar @ Jitan Ram,
Shripati Ram and Gangadayal Ram.
16. PW-13 Manmohan Jha Azad is also the
Investigating Officer of this case. He has stated, in his
examination-in-chief, that the informant caught the accused
Vibhishan Ram with the help of chowkidar Nathuni and dafadar
Dinesh Singh. He arrested Vibhishan Ram and took him to
Chilbiliyadih. At the Police station also, Vibhishan Ram had told
him that he went with Sudama to hunt Avadh @ Radheshyam Ram
in Mirchaiba Tal and Sudama shot Radheshyam and Vibhishan
brought a sack in which he kept the dead body and after digging a
pit, he buried the body and covered it with soil and hid the gun in
the arhar field. Vibhishan Ram took him to Mirchaiya Tal and
showed him the burial place. He found recently dug soil and a lot
of foul odour. He did not have the dead body removed as it was a
night time. Further, he has stated that Vibhishan Ram took him,
Police station-in-charge and other police officials to a second place
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
of crime which is an arhar field of the accused Vibhishan Ram
located at Godsana Siwan. A country-made gun dug out by
Vibhishan Ram and handed over to him. At the incident of spot
itself, in the presence of witnesses Sheogovind Ram and Mohit
Ram, the gun handed over by the accused Vibhishan Ram was
seized and a Seizure List was prepared on which Sheogovind Ram
signed and Mohit Ram put his thumb impression. Thereafter, he
inspected the crime scene at the instance of Police station SHO,
the informant, villagers and the accused Vibhishan Ram. The
second crime scene of the incident was located at about 2
kilometers north and west of the first crime scene. A pit was dug in
the Baha and a naked dead body was there and soil and acacia
thorns were put on the top of the body. The death. The Inquest
Report was marked as Exhibit-5. After that, he recorded the
statement of the witnesses Sheogovind Ram, Mohit Ram, Narayan
Sharma, Pyare Ram, Shankardayal Ram, Sheopujan Ram, Babulal
Paswan, dafadar Dinesh Singh, chowkidar Bhagwan Paswan and
Shiv Dhobi. On 31.05.1993, a letter was sent to the sergeant major,
Dehari for examination of the pistol, pellets and gunpowder given
by the accused Vibhishan and, on the same demand letter, the
sergeant major, after examination, recorded his report that the
trigger and barrel of the gun was working and pellets and
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
gunpowder are fillable materials for a gun. The demand letter and
the inspection report were marked as Exhibit-6. Thereafter, he
went to the house of the informant Sheonarayan at Vishrampur on
08.03.1992 which is the incident spot. After that, he recorded the
statement of the witness Raniya Devi, Kalavati Devi and Shiv
Dhobi. He received the post-mortem examination report of the
deceased Dukhan @ Radheshyam Ram on 10.03.1992. Thereafter,
he recorded the statement of the informant Sheonarayan Ram
again. The witness Sheogovind Ram had given the statement
before him that, on the day of the incident, informant's son
Dukhan Ram was taken to the forest by Sudama Ram and
Vibhishan Ram on the pretext of hunting. On 06.03.1992, he and
the informant caught hold of the accused Vibhishan Ram and
questioned him and the accused got scared and accepted his crime.
He told that after shooting him to death, he hid the body in
Mirchaiya pond and hid the gun in the arhar field. Then, he went
to the scene of incident with the Police and the accused showed
him the place where the body was taken and the place where the
pistol was hidden, and on that basis the dead body and the gun
were recovered. The witness Sheopujan Ram had stated in front of
him that Vibhishan and Sudama Ram together killed Radhe Shyam
with a country-made gun and buried the body in Mirchaiya pond
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
and hid the gun in the arhar field. The witness Dinesh Singh had
stated before him that the accused Vibhishan confessed his crime
before him went to the incident spot with the Police force as per
information given by the Police officers, the dead body and the
gun were recovered. On 07.03.1992 the accused Vibhishan Ram
gave his confessional statement to the Police Station at Baddi
which he wrote and Vibhishan Ram put his thumb impression. On
the basis of this confessional statement, the body and the gun were
recovered by Vibhishan Ram. The confessional statement was
marked as Exhibit-8.
16.1. In his cross-examination, he has stated
that on 06.03.1992, he was at the incident spot at Mirchaiya Tal. It
was the accused Vibhishan Ram who took him to Mirchaiya Tal
and showed him the place where the body was buried. On
07.03.1992 at 05:00 a.m. from Mirchaiya Tal, he went to the arhar
field of Luchai Paswan which was place of incident situated at the
foot of Kaimur hills. He found blood like substance lying in the
field. He did not seize any object from the this place. The Seizure
List related to pistols was prepared in the field of Vibhishan Ram.
He informed the Chief Judicial Magistrate, Sasaram that the pistol
and spice were recovered from the hut of Shripati Harijan who is
the father of the accused Vibhishan Ram. He has further stated that
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
the body was dug out in front of him by Nathuni Paswan but he
did not record its details in the case diary. He found mud smeared
all over the dead body and there was a hole-like injury on the
temple of the dead body and there was flesh on the face and the
entire body was swollen and the skin was peeled off. He had
recorded the details of the dead body in the inquest report. He took
the confession statement of the accused Vibhishan Ram on
07.03.1992. The body was dug out on 07.03.1992 at 06:00 a.m. He
has further stated that Vibhishan Ram gave the statement
voluntarily. The informant Sheonarayan Ram told him the names
of only two accused. He has further stated that Sheonarayan Ram
did not state before him that he searched for 8 days at his relative's
place but could not find his son.
OBSERVATION AND REASONING:-
17. We have considered the submissions canvassed
by the learned counsels appearing for the parties. We have also
perused the deposition given by the witnesses and the
documentary evidence produced before the Trial Court. From the
evidence led by the prosecution, it transpires that the fardbeyan of
the informant, who is the father of the victim, came to be recorded
on 06.03.1992 at 22:00 hours in which he has mainly stated that,
on 28.02.1992 at about 06:30 hours, his nephew Sudama Ram as
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
well as Vibhishan Ram came at his place and took his son Dukhan
on the pretext of hunting. However, thereafter his son did not
return. Thus, it appears that the F.I.R. was lodged after a period of
approximately 7 days. It would further reveal, from the fardbeyan,
that before the registration of the F.I.R. and giving the said
fardbeyan, enquiry was made from Sudama Ram and he disclosed
about the manner in which the son of the informant has been killed
by him as well as Vibhishan Ram and, therefore, Vibhishan Ram
was also apprehended and both of them were taken to the Police
Station.
18. It would further reveal from the record that
PW-1 & PW-2 have not supported the case of the prosecution
whereas PW-3, PW-4 & PW-7 to PW-10 have not supported the
case of the prosecution and they have turned hostile. Thus, the case
of the prosecution is based on the deposition given by PW-5
(Mohit Ram), PW-6 (informant) and PW-13 (Investigating
Officer).
19. PW-5 is the witness of Seizure List. The said
witness has admitted, during cross-examination, that the accused
Vibhishan Ram disclosed before him as well as the informant and
other village people in the presence of chowkidar when enquiry
was made that he alongwith co-accused Sudama Ram have killed
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
the deceased Dukhan and, thereafter, Vibhishan was taken to the
Police Station. The said witness has further admitted that the pistol
was not recovered in his presence.
20. PW-6 (informant) has deposed that his son had
gone with Vibhishan for the purpose of hunting. However, he did
not return for 8 days. He has further stated that he searched for his
son for 8 days. However, thereafter Vibhishan Ram was asked
about the incident after 8 days in presence of chowkidar and
dafadar. Vibhishan (appellant/accused) admitted his guilt and,
therefore, he was taken to the Police Station. During cross-
examination, the said witness has stated that there was a dispute
between him and his brothers with regard to the road of orchard.
However, he did not inform to the Police with regard to the threat
given by his brothers. The said incident took place prior to 6
months. He had also admitted that his son Dukhan had never gone
for hunting in the past. The said witness has also admitted, in Para-
33 of his cross-examination, that on the next day he informed to
the Daroga that concerned Police Officer has not written name of
five persons though he disclosed the name of five persons. Daroga
has, therefore, written the name of the five persons and thereafter
kept the chit in his pocket. Daroga also did not take any action
with regard to the said five persons and, therefore, he met the
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Superintendent of Police. Thus, from the aforesaid deposition of
PW-6 (informant), it can be said that the conduct of the informant
was not natural. His son was missing since last 8 days and he did
not inform about the same to the Police. Further, he gave the name
of five persons to the Police and, therefore, it can be said that he
was having suspicion against five persons. However, the Police did
not inquire about the said five persons.
21. At this stage, we would also like to refer the
deposition given by PW-13 (Investigating Officer). The said
witness has specifically admitted that the accused Vibhishan Ram
was brought to the Police Station by the chowkidar and dafadar
with the help of village people. He, therefore, arrested him. It is
also his case that the accused Vibhishan Ram admitted his guilt
and, therefore, his confessional statement was recorded.
Thereafter, they went to the place shown by the said accused
where he had hidden the dead body of the deceased. The said
accused also showed him the place where the pistol was kept by
him and, therefore, Seizure List was prepared. However, it is
relevant to note that, from the Trial court record, it is revealed that
the place where the dead body had been hidden was shown during
night hours however, because it was a night, the dead body was
not dug out and on the next day morning, the same was dug out.
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
The said aspect is also admitted by PW-6 (Investigating Officer) in
Para-8 of his deposition. Now, it is pertinent to note that from the
Trial court record, it transpires that the confessional statement of
the appellant Vibhishan Ram was recorded at P.S. Baddi in the
early morning of 07.03.1992. Thus, from the evidence led by the
prosecution, it transpires that before the confessional statement of
the appellant/accused Vibhishan Ram was recorded, the Police was
aware about the place where the dead body of the deceased as well
as the pistol was hidden. Thus, it appears that the dead body as
well as the pistol were not discovered at the instance of the
accused on the basis of confessional statement given by him before
the Police.
22. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Bijender @ Mandar (supra), wherein the Hon'ble Supreme
Court has observed, in Para-16, as under:-
"16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be true that
at times the court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not
be shrouded with elements of doubt. [Vijay Thakur v. State of
H.P., (2014) 14 SCC 609 : (2015) 1 SCC (Cri) 454] We may
hasten to add that circumstances such as : (i) the period of
interval between the malfeasance and the disclosure; (ii)
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
commonality of the recovered object and its availability in the
market; (iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the court and/or
other like factors, are weighty considerations that aid in
gauging the intrinsic evidentiary value and credibility of the
recovery. (See : Tulsiram Kanu v. State [Tulsiram
Kanu v. State, 1951 SCC 92 : AIR 1954 SC
1] , Pancho v. State of Haryana [Pancho v. State of Haryana,
(2011) 10 SCC 165 : (2012) 1 SCC (Cri) 223] , State of
Rajasthan v. Talevar [State of Rajasthan v. Talevar, (2011) 11
SCC 666 : (2011) 3 SCC (Cri) 457] and Bharama Parasram
Kudhachkar v. State of Karnataka [Bharama Parasram
Kudhachkar v. State of Karnataka, (2014) 14 SCC 431 :
(2015) 1 SCC (Cri) 395] )"
23. At this stage, we would also like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh,
reported in 2022 SCC OnLine SC 1396, wherein the Hon'ble
Supreme Court has observed, in Para-53 & 54, as under:-
"53. If, it is say of the investigating officer that the
accused appellant while in custody on his own free will and
volition made a statement that he would lead to the place
where he had hidden the weapon of offence along with his
blood stained clothes then the first thing that the investigating
officer should have done was to call for two independent
witnesses at the police station itself. Once the two independent
witnesses arrive at the police station thereafter in their
presence the accused should be asked to make an appropriate
statement as he may desire in regard to pointing out the place
where he is said to have hidden the weapon of offence. When
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
the accused while in custody makes such statement before the
two independent witnesses (panch witnesses) the exact
statement or rather the exact words uttered by the accused
should be incorporated in the first part of the panchnama that
the investigating officer may draw in accordance with law.
This first part of the panchnama for the purpose of Section 27
of the Evidence Act is always drawn at the police station in the
presence of the independent witnesses so as to lend credence
that a particular statement was made by the accused
expressing his willingness on his own free will and volition to
point out the place where the weapon of offence or any other
article used in the commission of the offence had been hidden.
Once the first part of the panchnama is completed thereafter
the police party along with the accused and the two
independent witnesses (panch witnesses) would proceed to the
particular place as may be led by the accused. If from that
particular place anything like the weapon of offence or blood
stained clothes or any other article is discovered then that part
of the entire process would form the second part of the
panchnama. This is how the law expects the investigating
officer to draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read the entire
oral evidence of the investigating officer then it is clear that
the same is deficient in all the aforesaid relevant aspects of the
matter.
54. The reason why we are not ready or rather
reluctant to accept the evidence of discovery is that the
investigating officer in his oral evidence has not said about the
exact words uttered by the accused at the police station. The
second reason to discard the evidence of discovery is that the
investigating officer has failed to prove the contents of the
discovery panchnama. The third reason to discard the evidence
is that even if the entire oral evidence of the investigating
officer is accepted as it is, what is lacking is the authorship of
concealment. The fourth reason to discard the evidence of the
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
discovery is that although one of the panch witnesses PW-2,
Chhatarpal Raidas was examined by the prosecution in the
course of the trial, yet has not said a word that he had also
acted as a panch witness for the purpose of discovery of the
weapon of offence and the blood stained clothes. The second
panch witness namely Pratap though available was not
examined by the prosecution for some reason. Therefore, we
are now left with the evidence of the investigating officer so
far as the discovery of the weapon of offence and the blood
stained clothes as one of the incriminating pieces of
circumstances is concerned. We are conscious of the position
of law that even if the independent witnesses to the discovery
panchnama are not examined or if no witness was present at
the time of discovery or if no person had agreed to affix his
signature on the document, it is difficult to lay down, as a
proposition of law, that the document so prepared by the
police officer must be treated as tainted and the discovery
evidence unreliable. In such circumstances, the Court has to
consider the evidence of the investigating officer who deposed
to the fact of discovery based on the statement elicited from
the accused on its own worth."
24. From the aforesaid observation made by the
Hon'ble Supreme Court, it can be said that when the accused has
shown willingness to give his confessional statement, it is the duty
of the Investigating Officer to call for two independent witnesses
at the police station itself and after the independent witnesses
arrive at the police station, in their presence, the accused should be
asked to make an appropriate statement as he may desire in regard
to pointing out the place where he is said to have hidden the
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
weapon of the offence. Further, when the accused while in custody
makes such statement before two independent witnesses (Panch
Witnesses), the exact statement or the exact words uttered by the
accused should be incorporated in the first part of the Panchnama
that the I.O. may draw in accordance with law. This first part of
Panchnama for the purpose of 27 of the Evidence Act is always
drawn at the police station in presence of the independent
witnesses so as to lend credence that a particular statement was
made by the accused expressing his willingness on his own free
will and volition to point out the place where the article used in
commission of the offence has been hidden. Once the first part of
the Panchnama is completed, thereafter the police party along with
the accused and the two independent witnesses (panch witnesses)
would proceed to the particular place as may be led by the
accused. If from that particular place anything like the weapon of
the offence or blood stained clothes or any other article is
discovered then that part of the entire process would form the
second part of the panchnama as contemplated under Section-27 of
the Evidence Act.
25. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the facts of the present
case are examined, it is revealed that in the entire oral evidence of
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
the Investigating Officer, he had not disclosed about the aforesaid
aspects and, therefore, the theory of the prosecution with regard to
the evidence of discovery made pursuance to the confessional
statement of accused Vibhishan Ram is not duly proved. On the
contrary, as observed hereinabove, prior to recording the
confessional statement of accused Vibhishan Ram, the place where
the dead body was hidden and the pistol was kept was known to
the Police authority.
26. Now, so far as the appellant Sudama Ram is
concerned, it appears that he has not been implicated on the basis
of the statement of co-accused Vibhishan Ram. Therefore, at this
stage, we would like to examine the question as to whether the
confessional statement of co-accused can bind the appellant
Sudama Ram or not and to what extent.
27. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Haricharan Kurmi And Jogia Hajam Vs. State of Bihar,
reported in 1964 SCC OnLine SC 28, wherein the Hon'ble
Supreme Court has observed, in Para-14, as under:-
"14. In appreciating the full effect of the
provisions contained in Section 30, it may be useful to refer to
the position of the evidence given by an accomplice under
Section 133 of the Act. Section 133 provides that an
accomplice shall be a competent witness against an accused
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
person; and that a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice.
Illustration (b) to Section 114 of the Act brings out the legal
position that an accomplice is unworthy of credit, unless he is
corroborated in material particulars. Reading these two
provisions together, it follows that though an accomplice is a
competent witness, prudence requires that his evidence should
not be acted upon unless it is materially corroborated; and that
is the effect of judicial decisions dealing with this point. The
point of significance is that when the court deals with the
evidence by an accomplice, the court may treat the said
evidence as substantive evidence and enquire whether it is
materially corroborated or not. The testimony of the
accomplice is evidence under Section 3 of the Act and has to
be dealt with as such. It is no doubt evidence of a tainted
character and as such, is very weak; but, nevertheless, it is
evidence and may be acted upon, subject to the requirement
which has now become virtually a part of the law that it is
corroborated in material particulars."
28. In the case of Subramanya Vs. The State of
Karnataka, reported in (2023) 11 SCC 255, the Hon'ble Supreme
Court has dealt with the aforesaid aspects in Para-63 to 67. The
Hon'ble Supreme Court has mainly observed that Section 30,
however, provided that the Court might take into consideration the
confession and thereby no doubt made it evidence on which the
Court could act, but the section did not say that the confession was
to amount to proof. Equally, there must be other evidence and
confession or only one element in consideration of all the facts
proved in the case which may be put into the scale and weighed
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
with other evidence. The Hon'ble Supreme Court further observed
that in criminal trial there is no scope for applying the principle of
moral conviction or grave suspicion. Further, in criminal cases
where the other evidence adduced against the accused person is
wholly unsatisfactory and the prosecution seeks to rely on the
confession of co-accused person, the presumption of innocence,
which is a basis of criminal jurisprudence against the accused
persons and compels the Court to render the verdict that the charge
is not proved against him and so he is entitled to benefit of doubt.
29. In the case of Surinder Kumar Khanna
(supra), the Hon'ble Supreme Court has observed, in Para-10 to
Para-12, as under:-
"10. In Kashmira Singh v. State of M.P. [Kashmira
Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 :
AIR 1952 SC 159 : 1952 Cri LJ 839] , this Court relied upon
the decision of the Privy Council in Bhuboni
Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 :
(1948-49) 76 IA 147 at p. 155.] and laid down as under: (AIR
p. 160, paras 8-10)
"8. Gurubachan's confession has played an
important part in implicating the appellant, and the
question at once arises, how far and in what way the
confession of an accused person can be used against a
co-accused? It is evident that it is not evidence in the
ordinary sense of the term because, as the Privy
Council say in Bhuboni Sahu v. R. [Bhuboni
Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA
147 at p. 155.] : (SCC OnLine PC)
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
'...It does not indeed come within the
definition of "evidence" contained in Section 3
of the Evidence Act. It is not required to be
given on oath, nor in the presence of the
accused, and it cannot be tested by cross-
examination.'
Their Lordships also point out that it is
'obviously evidence of a very weak type. ... It
is a much weaker type of evidence than the
evidence of an approver, which is not subject to
any of those infirmities'.
They stated in addition that such a confession cannot
be made the foundation of a conviction and can only
be used in "support of other evidence". In view of
these remarks, it would be pointless to cover the same
ground, but we feel it is necessary to expound this
further as misapprehension still exists. The question is,
in what way can it be used in support of other
evidence? Can it be used to fill in missing gaps? Can it
be used to corroborate an accomplice or, as in the
present case, a witness who, though not an accomplice,
is placed in the same category regarding credibility
because the Judge refuses to believe him except insofar
as he is corroborated?
9. In our opinion, the matter was put succinctly by
Sir Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty,
ILR (1911) 38 Cal 559 at p. 588.] where he said that
such a confession can only be used to "lend assurance
to other evidence against a co-accused "or, to put it in
another way, as Reilly, J. did in Periaswami Moopan,
In re [Periaswami Moopan, In re, 1930 SCC OnLine
Mad 86 : ILR (1931) 54 Mad 75 at p. 77.] : (SCC
OnLine Mad)
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
'...the provision goes no further than this--
where there is evidence against the co-accused
sufficient, if believed, to support his
conviction, then the kind of confession
described in Section 30 may be thrown into the
scale as an additional reason for believing that
evidence.'
10. Translating these observations into concrete
terms they come to this. The proper way to approach a
case of this kind is, first, to marshal the evidence
against the accused excluding the confession altogether
from consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable
of belief independently of the confession, then of
course it is not necessary to call the confession in aid.
But cases may arise where the Judge is not prepared to
act on the other evidence as it stands even though, if
believed, it would be sufficient to sustain a conviction.
In such an event the Judge may call in aid the
confession and use it to lend assurance to the other
evidence and thus fortify himself in believing what
without the aid of the confession he would not be
prepared to accept."
11. The law laid down in Kashmira
Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 :
1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was
approved by a Constitution Bench of this Court in Haricharan
Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar,
(1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 :
(1964) 2 Cri LJ 344] wherein it was observed: (Haricharan
case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623
at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] ,
AIR p. 1188, para 12)
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
"12. As we have already indicated, this question
has been considered on several occasions by judicial
decisions and it has been consistently held that a
confession cannot be treated as evidence which is
substantive evidence against a co-accused person. In
dealing with a criminal case where the prosecution
relies upon the confession of one accused person
against another accused person, the proper approach to
adopt is to consider the other evidence against such an
accused person, and if the said evidence appears to be
satisfactory and the court is inclined to hold that the
said evidence may sustain the charge framed against
the said accused person, the court turns to the
confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right. As was observed by Sir Lawrence
Jenkins in Emperor v. Lalit Mohan
Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty,
ILR (1911) 38 Cal 559 at p. 588.] a confession can
only be used to "lend assurance to other evidence
against a co-accused". In Periaswami Moopan, In
re [Periaswami Moopan, In re, 1930 SCC OnLine Mad
86 : ILR (1931) 54 Mad 75 at p. 77.] Reilly, J.,
observed that the provision of Section 30 goes not
further than this: (SCC OnLine Mad)
'...where there is evidence against the co-
accused sufficient, if believed, to support his
conviction, then the kind of confession
described in Section 30 may be thrown into the
scale as an additional reason for believing that
evidence.'
In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC
OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] the
Privy Council has expressed the same view. Sir John
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Beaumont who spoke for the Board, observed that:
(SCC OnLine PC)
'... a confession of a co-accused is
obviously evidence of a very weak type. It does
not indeed come within the definition of
"evidence" contained in Section 3 of the
Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it
cannot be tested by cross-examination. It is a
much weaker type of evidence than the
evidence of an approver, which is not subject to
any of those infirmities. Section 30, however,
provides that the court may take the confession
into consideration and thereby, no doubt, makes
it evidence on which the court may act; but the
section does not say that the confession is to
amount to proof. Clearly there must be other
evidence. The confession is only one element
in the consideration of all the facts proved in
the case; it can be put into the scale and
weighed with the other evidence.'
It would be noticed that as a result of the provisions
contained in Section 30, the confession has no doubt to
be regarded as amounting to evidence in a general way,
because whatever is considered by the court is
evidence; circumstances which are considered by the
court as well as probabilities do amount to evidence in
that generic sense. Thus, though 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
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
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, briefly
stated, is the effect of the provisions contained in
Section 30. The same view has been expressed by this
Court in Kashmira Singh v. State of M.P. [Kashmira
Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR
526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the
decision of the Privy Council in Bhuboni Sahu
case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 :
(1948-49) 76 IA 147 at p. 155.] has been cited with
approval."
12. The law so laid down has always been
followed by this Court except in cases where there is a
specific provision in law making such confession of a co-
accused admissible against another accused. [ For
example: State v. Nalini, (1999) 5 SCC 253, paras 424 and
704 : 1999 SCC (Cri) 691]"
30. From the aforesaid decisions rendered by the
Hon'ble Supreme Court, it can be said that in dealing with
criminal case when the prosecution relies upon the confession of
one accused person against another accused person, the proper
approach to adopt is to consider the other evidence against such
other accused person and if the said evidence appears to be
satisfactory and the Court is inclined to hold that the said evidence
may sustain the charge framed against the said accused person, the
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Court turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other evidence is
right. In the present case, except the statement of the co-accused
Vibhishan Ram, there is no evidence available on record
connecting the appellant Sudama Ram to the incident in question
and, therefore, we are of the view that, only on the basis of the
confessional statement of co-accused, appellant Sudama Ram
cannot be convicted.
31. At this stage, we would also like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Sharad Birdhi Chand Sarda Vs. State of Maharashtra,
reported in (1984) 4 SCC 116, wherein the Hon'ble Supreme
Court has observed, in Para-152 & Para-153, as under:-
"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 :
(AIR 1973 SC 2622) where the observations were made:
"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
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
'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.
153. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case based on
circumstantial evidence."
32. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the facts and the
evidence led by the prosecution, in the present case, are closely
examined, we are of the view that the prosecution has failed to
complete the chain of circumstances from which it can be
established that the present appellants have committed the alleged
offences. Thus, the prosecution has failed to prove the case against
the appellants beyond reasonable doubt. We have also gone
through the reasoning recorded by the Trial court while rendering
the impugned judgment and order and we are of the view that the
Patna High Court CR. APP (DB) No.7 of 2019 dt.12-02-2025
Trial court has committed a grave error while passing the same.
Hence, interference in the same judgment and order is required.
CONCLUSION:-
33. Accordingly, the impugned judgment of
conviction dated 26.09.2018 and order of sentence dated
03.10.2018 passed by learned Fast Track Court-Ist, Rohtas,
Sasaram in Sessions Trial No. 285/93, arising out of Shivsagar
(Baddi) P.S. Case No. 34 of 1992 are quashed and set aside. The
appellants are acquitted of the charges levelled against them by the
learned Trial Court.
34. Both the appellants are in custody. They are
directed to be released from jail custody forthwith, if their custody is
not required in any other case.
35. Both the appeals stand allowed.
(Vipul M. Pancholi, J)
(Alok Kumar Pandey, J)
Sachin/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 25.02.2025
Transmission Date 25.02.2025
