NIKHIL CHANDRA MONDAL versus STATE OF WEST BENGAL

[2023] 2 S.C.R.

ANIKHIL CHANDRA MONDAL

STATE OF WEST BENGAL

(Criminal Appeal No. 2269 of 2010)

BMARCH 03, 2023

[B. R. GAVAI AND SANJAY KAROL, JJ.]

Evidence – Extra-judicial Confession – Evidentiary value –Lady found murdered by sharp cutting weapon – Duringinvestigation, revealed that the appellant-husband of the deceasedChad confessed before the prosecution witness that he had murderedthe deceased with the murder weapon at that very spot where thebody of the deceased was found – However, the trial court foundthe evidence of the witnesses contradictory to each other and nottrustworthy, and acquitted the appellant – In appeal, the High CourtDconvicted and sentenced the appellant u/s. 302 – Interference with– Held: Not called for – However, strong suspicion may be, it cannottake place of proof beyond reasonable doubt – Extra–judicialconfession is weak piece of evidence – Where an extra–judicialconfession is surrounded by suspicious circumstances, its credibilitybecomes doubtful and it loses its importance – Trial court found theEtestimonies of prosecution witnesses not to be reliable so as to basethe conviction solely on the basis of such testimonies – Trial courtdisbelieved the recovery of clothes and weapon – Approach adoptedby the trial court was in accordance with law – Unless such findingis found to be perverse or illegal/impossible, it is not permissibleFfor the appellate Court to interfere with the same – View taken bythe trial court could not be said to be either perverse or illegal/impossible to warrant interference – Thus, High Court erred ininterfering with the well-reasoned judgment and order of acquittalpassed by the trial court - Penal Code, 1860 - s. 302.GAllowing the appeal, the Court

Held : 1.1. It is settled principle of law that howeverstrong suspicion may be, it cannot take place of proof beyondreasonable doubt. In the light of these guiding principles, we willhave to consider the present case. [Para 11][26-C-D]

1.2. The trial court observed that where the prosecutioncase is entirely based on extra–judicial confession and theprosecution seeks conviction of the accused on that extra–judicialconfession, the evidence of the witnesses before whom the allegedconfessional statement was made, requires greater scrutiny topass the test of credibility. [Para 13][26-E]

1.3 The trial court found that the evidence of PWs 10 to 12were contradictory to each other. The trial court had the benefitof witnessing the demeanour of these witnesses. It found theevidence of these witnesses not to be trustworthy. [Para 14][26-F]

1.4 Extra–judicial confession is weak piece of evidence.Where an extra–judicial confession is surrounded by suspiciouscircumstances, its credibility becomes doubtful and it loses itsimportance. It is rule of caution where the court would generallylook for an independent reliable corroboration before placing anyreliance upon such extra–judicial confession. There is no doubtthat conviction can be based on extra–judicial confession, but inthe very nature of things, it is weak piece of evidence. [Para15][26-G-H; 27-A]

1.5 The trial court found the testimonies of PWs 10 to 12not to be reliable so as to base the conviction solely on the basisof such testimonies. Unless such finding was found perverse,an interference therewith would not be warranted. [Para 16][27-F-G]

1.6 The Division Bench of the High Court has relied onthe recovery of the blood–stained clothes and the weapon whichis alleged to have been used by the appellant in commission ofthe crime. The trial court disbelieved the recovery of clothesand weapon on two grounds. Firstly, that there was nomemorandum statement of the accused as required under Section27 of the Evidence Act, 1872 and secondly, the recovery of theknife was from an open place accessible to one and all. Theapproach adopted by the trial court was in accordance with law.However, this circumstance which could not have been used, has

Abeen employed by the High Court to seek corroboration to theextra–judicial confession. [Paras 17, 18][27-G; 28-A-B]

1.7 The scope of interference in an appeal against acquittalis very well crystalised. Unless such finding is found to beperverse or illegal/impossible, it is not permissible for theBappellate Court to interfere with the same. The view taken bythe trial court could not be said to be either perverse or illegal/impossible to warrant interference. The High Court grossly erredin interfering with the well–reasoned judgment and order ofacquittal passed by the trial court. Thus, the impugned judgmentand order passed by the High Court convicting the appellant forCthe offence punishable under Section 302 of the IPC is quashedand set aside. [Para 19, 22][28-C-F]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Sahadevan andDAnother v. State of Tamil Nadu (2012) 6 SCC 403 :[2012] 4 SCR 366; Rajesh Prasad v. State of Biharand Another (2022) 3 SCC 471 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.F2269 of 2010.

From the Judgment and Order dated 15.12.2018 of the High Courtat Calcutta in Govt. Appeal No. 38 of 1987.

Ms. Rukhsana Choudhury, Adv. for the Appellant.

Ms. Astha Sharma, Srisatya Mohanty, Sanjeev Kaushik,Ms. Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, BhanuMishra, Devvrat Singh, Ms. Muskan Surana, Advs. for the Respondent.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. The appeal challenges the judgment and order dated15[th] December 2008 passed by the High Court at Calcutta in GovernmentAppeal No. 38 of 1987, thereby reversing the judgment and order dated31[st] March 1987 passed by the Additional Sessions Judge, 4[th] Court,Burdwan (hereinafter referred to as “the trial court”), vide which thetrial court had acquitted the appellant for the charge under Section 302of the Indian Penal Code, 1860 (for short, “IPC”). Vide the impugnedjudgment and order, the Division Bench of the High Court convicted theappellant for the offence punishable under Section 302 of the IPC andsentenced him to undergo imprisonment for life and fine of Rs.2,000/-and in default of payment of fine, to undergo further imprisonment for aperiod of six months.

2. The prosecution case, in brief, as could be gathered from thematerial placed on record is thus:

On 11[th] March 1983, UD Case No. 7/83 was registered at PSKetugram that the dead body of an unknown married woman aged about25 years was lying in field on the side of the railway track at AmbalgisanRailway Station. The lady appeared to have been murdered by sharpcutting weapon. On the basis of the aforesaid, Police had begun theinvestigation. During investigation, it was revealed that the appellant,accompanied his wife (the deceased) and their son had gone to attendthe Fullara Mela organised in Lavpur Gram Panchayat and thereafter,the deceased was alleged to be missing from the said Mela. During theinvestigation, it was also revealed that the appellant had confessed beforeManick Pal (PW-10), Pravat Kumar Misra (PW-11) and Kanai Ch. Saha(PW-12) that he had murdered the deceased with bhojali (the murderweapon) at that very spot where the body of the deceased was found.

3. Upon completion of the investigation, charge-sheet came tobe filed before the Chief Judicial Magistrate, Burdwan under Section302 of the IPC against the appellant. The case was committed to theCourt of Sessions. The appellant pleaded not guilty and claimed to betried. At the conclusion of the trial, the trial court vide judgment andorder dated 31[st] March 1987 acquitted the appellant from the chargeslevelled against him. Being aggrieved thereby, the State preferred anappeal before the High Court. By the impugned judgment and order, the

AHigh Court allowed the appeal and convicted and sentenced the appellantas aforesaid. Hence, the present appeal.

4. We have heard Ms. Rukhsana Choudhury, learned counselappearing on behalf of the appellant and Ms. Astha Sharma, learnedcounsel appearing on behalf of the State.

5. Ms. Choudhury submits that the High Court has grossly erredin reversing the well-reasoned judgment and order of acquittal passedby the trial court. She submits that the trial court had rightly disbelievedthe testimonies of Manick Pal (PW-10), Pravat Kumar Misra (PW-11)and Kanai Ch. Saha (PW-12) being inconsistent with each other. It isCtherefore submitted that the finding of the trial court disbelieving theextra-judicial confession alleged to have been made to these threewitnesses could not be said either to be perverse or illegal/impossible.She further submits that in any case the interference in finding ofacquittal would not be warranted unless the finding is found to be perverseor illegal/impossible. She therefore submits that the impugned judgmentDand order is liable to be set aside.

6. Ms. Sharma, on the contrary, submits that the High Court hasrightly found that the extra-judicial confession made before PWs 10 to12 is trustworthy, reliable and cogent. She therefore submits that theHigh Court has rightly reversed the judgment and order of acquittal whichEwas recorded disbelieving the cogent and reliable testimonies of thesethree witnesses. She further submits that, apart from the extra-judicialconfession, the prosecution has also established the recovery of the blood-stained clothes and the weapon used by the appellant in commission ofthe crime. This circumstance corroborates the testimonies of PWs 10 to12.F

7. With the assistance of the learned counsel for the parties, wehave scrutinized the entire evidence.

8. Undisputedly, the present case rests on circumstantial evidence.The law with regard to conviction in the case of circumstance evidenceGis very well crystalised in the judgment of this Court in the case of SharadBirdhichand Sarda v. State of Maharashtra[1].

9. We may gainfully refer to the following observations of thisCourt in the case of Sharad Birdhichand Sarda (supra):

H1 (1984) 4 SCC 116

“153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case against anaccused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973Crl LJ 1783] where the observations were made: [SCC para 19,p. 807: SCC (Cri) p. 1047]

“Certainly, it is primary principle that the accused must beand not merely may be guilty before court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of conclusive nature andtendency,

(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of case based on circumstantialevidence.”

10. It can thus be seen that this Court has held that the circumstancesfrom which the conclusion of guilt is to be drawn should be fullyestablished. It has been held that the circumstances concerned “must or

Ashould” and not “may be” established. It has been held that there is notonly grammatical but legal distinction between “may be proved” and“must be or should be proved”. It has been held that the facts soestablished should be consistent only with the hypothesis of the guilt ofthe accused, that is to say, they should not be explainable on any otherhypothesis except that the accused is guilty. It has been held that theBcircumstances should be of conclusive nature and tendency and theyshould exclude every possible hypothesis except the one sought to beproved, and that there must be chain of evidence so complete so as notto leave any reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all human probabilityCthe act must have been done by the accused.

11. It is settled principle of law that however strong suspicionmay be, it cannot take place of proof beyond reasonable doubt. In thelight of these guiding principles, we will have to consider the presentcase.D12. The prosecution case rests basically on the extra-judicialconfession alleged to have been made by the appellant before ManickPal (PW-10), Pravat Kumar Misra (PW-11) and Kanai Ch. Saha (PW-12).

13. The trial court observed that where the prosecution case isEentirely based on extra-judicial confession and the prosecution seeksconviction of the accused on that extra-judicial confession, the evidenceof the witnesses before whom the alleged confessional statement wasmade, requires greater scrutiny to pass the test of credibility.

14. The trial court found that the evidence of PWs 10 to 12 wereFcontradictory to each other. It is further to be noted that the trial courthad the benefit of witnessing the demeanour of these witnesses. It foundthe evidence of these witnesses not to be trustworthy.

15. It is settled principle of law that extra-judicial confession isa weak piece of evidence. It has been held that where an extra-judicialGconfession is surrounded by suspicious circumstances, its credibilitybecomes doubtful and it loses its importance. It has further been heldthat it is well-settled that it is rule of caution where the court wouldgenerally look for an independent reliable corroboration before placingany reliance upon such extra-judicial confession. It has been held thatthere is no doubt that conviction can be based on extra-judicial confession,H

but in the very nature of things, it is weak piece of evidence. Reliancein this respect could be placed on the judgment of this Court in the caseof Sahadevan and Another v. State of Tamil Nadu[2]. This Court, in thesaid case, after referring to various earlier judgments on the point,observed thus:

“16. Upon proper analysis of the abovereferred judgments ofthis Court, it will be appropriate to state the principles which wouldmake an extra-judicial confession an admissible piece of evidencecapable of forming the basis of conviction of an accused. Theseprecepts would guide the judicial mind while dealing with theveracity of cases where the prosecution heavily relies upon anextra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is weak evidence by itself.It has to be examined by the court with greater care andcaution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility andevidentiary value if it is supported by chain of cogentcircumstances and is further corroborated by other prosecutionevidence.

(v) For an extra-judicial confession to be the basis of conviction,it should not suffer from any material discrepancies and inherentimprobabilities.

(vi) Such statement essentially has to be proved like any otherfact and in accordance with law.”

16. As already discussed hereinabove, the trial court found thetestimonies of PWs 10 to 12 not to be reliable so as to base the convictionsolely on the basis of such testimonies. Unless such finding was foundperverse, an interference therewith would not be warranted.

17. The Division Bench of the High Court has relied on therecovery of the blood-stained clothes and the weapon which is allegedto have been used by the appellant in commission of the crime.

2 (2012) 6 SCC 403

A18. The trial court disbelieved the recovery of clothes and weaponon two grounds. Firstly, that there was no memorandum statement ofthe accused as required under Section 27 of the Evidence Act, 1872 andsecondly, the recovery of the knife was from an open place accessibleto one and all. We find that the approach adopted by the trial court wasin accordance with law. However, this circumstance which, in our view,Bcould not have been used, has been employed by the High Court to seekcorroboration to the extra-judicial confession.

19. The scope of interference in an appeal against acquittal isvery well crystalised. Unless such finding is found to be perverse orillegal/impossible, it is not permissible for the appellate Court to interfereCwith the same.

20. Recently, three-Judges Bench of this Court in the case ofRajesh Prasad v. State of Bihar and Another[3 ]has considered variousearlier judgments on the scope of interference in case of acquittal. Itheld that there is double presumption in favour of the accused. Firstly,Dthe presumption of innocence that is available to him under the fundamentalprinciple of criminal jurisprudence that every person shall be presumedto be innocent unless he is proved guilty by competent court oflaw. Secondly, the accused having secured his acquittal, the presumptionof his innocence is further reinforced, reaffirmed and strengthened byEthe court. It has been further held that if two reasonable conclusions arepossible on the basis of the evidence on record, the Appellate Courtshould 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 saidto be either perverse or illegal/impossible to warrant interference. TheFHigh Court has grossly erred in interfering with the well-reasonedjudgment 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 15[th] December 2008Gpassed by the High Court at Calcutta in Government Appeal No. 38 of1987 convicting the appellant for the offence punishable under Section302 of the IPC is quashed and set aside; and

(iii) The judgment and order dated 31[st] March 1987 passed by thetrial court acquitting the appellant from the charges levelled against himis affirmed.

23. The appellant is directed to be set at liberty forthwith if notrequired in any other case.

24. Pending application(s), if any, shall stand disposed of.

Nidhi Jain

Appeal allowed.

(Assisted by : Tamana, LCRA)