[NON-REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 377 OF 2000

Gopal Sah           ……..Appellant

Vs.

State of Bihar …….Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

1. Four persons - Gopal Sah, Dasrath Sah, Bhushan Sah

and  Raghunath  Sah  were  tried  by  the  Additional

Sessions Judge, Saharsa for  offences punishable under

Sections  302/34,  304/34,201/34  and  120B  of  the

Indian Penal Code.  The trial court in its judgment dated

14th September 1985 held  the first three accused guilty

of  the  offence  under  Section  302/34  of  the  IPC  and

sentenced  them  to  undergo  imprisonment  for  life

whereas  Raghunath  Sah was  acquitted.   Two  appeals

were thereafter filed by the convicted accused before the

Patna High Court whereas the complainant also filed a

revision against the acquittal of Raghunath Sah.  During

the pendency of the appeal in the High Court, Dasrath

Sah died.   The  High Court,  however,  upheld  the  trial

court judgment with respect to the three accused.  Gopal

Sah  accused  then  filed  the  present  criminal  appeal

challenging his conviction and the matter has been put

up  for  final  hearing  before  us.   Bhushan  Sah

subsequently filed a special leave petition in this Court

as well, but it is the admitted position that this matter

has  been  dismissed  by  this  Court  on  the  ground  of

limitation as well as having no merit.

2. The prosecution story is as under:

3. Gopal Prasad Gupta deceased aged about 18 years went

out of his house at about 6 p.m. on 7th June 1982 and

when  he  did  not  return  till  dinner  time,  his  family

members  went in search for him but he could not be

found.  The search continued the next morning as well

2

though without success.  At about 2 p.m. on 8th June

1982  Murtaza  Khan  PW22  informed  the  family  that

Gopal  Prasad Gupta’s  dead  body was lying in a ditch

near village Chhekabadh on which PW20 Jagdish Prasad

Gupta, the uncle of the deceased lodged a FIR at about

2.30 p.m. stating, inter-alia, that at about 6 p.m. on the

7th of  June  1982  the  deceased  had  been  seen  with

Raghunath  Sah  and  his  son  Bhushan  Sah  near  the

wooden bridge.  During the course of the investigation,

the  accused  were  arrested  and  on  their  disclosure

statements,  a blood stained axe and a sickle  allegedly

used  in  the  murder  on  8th of  September  1982  were

recovered  from  a  water  filled  pond.   The  police  also

conducted a raid at the houses of the four accused and

a  blood  stained  ganji,  a  spade  and  a  bucket  were

recovered  from  the  house  of  Bhushan  Sah  and

Raghunth Sah.   The statement of Dasrath Sah was also

recorded under  Section 164 of  the Cr.P.C.  by Judicial

Magistrate, B.K. Singh PW11.  On the completion of the

3

investigation,  the  accused  were  charged  as  already

indicated above.

4. The prosecution examined 29 witnesses in all to support

the  circumstances  appearing  against  the  accused,  as

admittedly  there  was  no  eye  witness  to  the  murder.

PW1  Nageshwari  Devi,  the  mother  of  the  deceased

deposed  that  on  the  relevant  day  her  son  had  been

taken  away  by  Bhushan  Sah for  a  walk  and  he  had

thereafter not returned.  PW3 Shivnath Sahu stated that

he had seen Gopal  Sah, the present  appellant,  in the

orchard of Jai Narayan Sah carrying a sickle in his hand

on  the  date  of  incident.   PW4  Sofil  Khan  and  PW6

Digamber  Mandal  testified  that  they  had  seen

Raghunath Sah carrying a spade and a bucket  in his

hand moving  away hurriedly  whereas  PW5 Md.  Nadaf

stated further that he had seen the three accused (Gopal

Sah, Dasrath Sah and Bhushan Sah) moving away in a

disturbed state of mind.  PW8 Kameshwar Choudhary

too corroborated this statement and further added that

he had seen the deceased along with Bhushan Sah and

4

Dasrath Sah near the wooden bridge and a third person

whom he could not identify, was urinating close by.   He

stated that man was not Gobind Gupta, a cousin of the

deceased,  who too,  at  one  time,  was suspected of  the

murder.  PW17 Lakhan Sah further stated that he had

seen  Gopal  Parsad  Gupta  sitting  near  the  bridge  at

about  sun  set  with  Bhushan  Sah  and  Dasrath  Sah

accused.   The  recoveries  of  the  axe,  sickle  and  other

articles were sought to be proved by the evidence of PW9

Satyadeo Singh and PW12 Mohd. Arif.  The prosecution

also produced in evidence  PW16 Birendra Maharaj and

PW19 Jagannath Choudhary to whom Dasrath accused

had allegedly made an extra judicial  confession of the

involvement of all the accused in the murder.

5. The trial court in its judgment held that the evidence of

PW1, the mother of the deceased to the effect that the

deceased had gone with Bhushan Sah on the evening of

7th June 1982 could not be relied upon in the light of the

evidence  of  PW21  Binod  Kumar,  who  stated  that  the

deceased had gone with him on his cycle up to the water

5

tank.   The  trial  court  also  refused  to  rely  on  the

confession  made  under  section  164  of  the  Cr.P.C.  by

Dasrath, as it  had not been recorded by following the

correct  procedure  the  more  so  as Dasrath Sah in the

course of the trial had alleged that it had been made by

him under  coercion.   The  trial  court  then went  on to

examine the other evidence.  It concluded that from the

evidence of PW22 Murtuza Khan it had been established

that the dead body of the deceased clad only in a ganji

had been found near the orchard on 8th June 1982 at

about  2  p.m.   The  trial  court  relied  upon  the  extra

judicial  confession  made  by  Dasrath  Sah and  on  the

recovery of the sickle made at the         instance of Gopal

Sah and found corroboration from the fact that he had

been seen rushing away from the place of incident. The

trial  court  concluded  that  the  evidence  supported  the

view that  Bhushan Sah  and Dasrath Sah had been

seen near the bridge at about 6 p.m. on 7th June 1982

whereas one unidentified person was urinating close by

who  could  be  Gopal  Sah  appellant.  The  Court  also

6

accepted  the  story  that  Bhushan Sah and Gopal  Sah

had disclosed to the police on 9th June, 1982 that they

had thrown an axe and a sickle in the pond and the axe

had been recovered on that day whereas the sickle had

been  recovered  three  months  thereafter.    The  High

Court in appeal upheld the judgment of the trial court

and dismissed both the appeals as well as the criminal

revision  filed  by  the  complainant.    As  already

mentioned,  the  present  appeal  has  been  filed  at  the

instance  of  Gopal  Sah  alone;  and  the  special  leave

petition filed by Bhushan Sah has been dismissed  on

the ground of limitation as well as on merits.

6. The learned counsel for the appellant has raised several

arguments during the course of the hearing.  It has been

pointed  out  that  there  was  absolutely  no  evidence  to

connect Gopal Sah with the crime, as the recovery of the

sickle made in September 1982 i.e. about three months

after the incident was too remote a factor.  It has also

been  pleaded  that  the  evidence  of  last  seen pertained

only to Bhushan Sah and Dasrath Sah accused, as the

7

third person with them near the wooden bridge had not

been  identified  as  being  Gopal  Sah  by  any  of  the

witnesses.   It  has further been pleaded that the extra

judicial confession allegedly made by Dasrath Sah could

not be used as evidence against the other accused and

that in any case this evidence too was unbelievable.

7. The  learned  counsel  for  the  respondent  State  has,

however, argued that the appeal of Bhushan Sah having

been  dismissed  on  the  same  evidence,  the  present

appeal too was liable to dismissal on that basis.    He

has also pointed out that the recovery of the sickle and

the statement of Dasrath Sah which was to be taken as

an  extra  judicial  confession  completed  the  chain  of

events involving Gopal Sah in the murder.

8. We have heard the learned counsel for the parties and

gone  through the  record.   Admittedly,  there  are  three

main incriminating circumstances against the accused.

The  first  piece  of  evidence  is  the  suggestion  that  the

third person who was urinating close by the bridge was

Gopal  Sah,  the  second  the  extra  judicial  confession

8

made  by  Dasrath  Sah  and  the  third  the  recovery  of

alleged murder weapon - a sickle.   We are of the opinion

that this evidence is, to say the least, unacceptable.  It

has  come  in  the  statement  of  PW8  Kameshwar

Choudhary that he had seen Dasrath Sah along with the

deceased near the bridge and that another person was

urinating close  by.   It  is the suggestion and inference

that this person was Gopal Sah.  We are, however, of the

opinion that there can be no conviction on inferences to

be  drawn  from  the  prosecution  evidence  more

particularly as there is absolutely no evidence to suggest

that the third person was indeed Gopal Sah appellant.

We  find  that  in  this  situation  the  statement  of  PW5

Mohd.  Nadaf  that  he  had  seen  the  three  convicted

accused moving swiftly away from the direction of the

site of  the murder at about  7.30 p.m. or that he had

seen the appellant Gopal Sah with a sickle in hand is

hardly sufficient to hold him guilty of murder.  We are,

further, of the opinion that an extra judicial confession

is, on the face of it, a weak piece of evidence and the

9

Courts are reluctant in the absence of a chain of cogent

circumstances to rely on this evidence for the purpose of

recording a conviction.  In  any case,  we find that the

confession made by Dasrath Sah can, if at all, be used

against  him  and  not  against  his  co-accused.     The

statement of the investigating officer with respect to the

place where the two murder weapons had been allegedly

thrown makes the recovery itself tenuous. Moreover, as

the sickle allegedly in the hands of Gopal Sah had been

recovered from a pond three months after the murder,

no evidentiary value whatsoever can be attached to this

circumstance as well.

9. The argument of the State counsel that as the appeal of

Bhushan Sah had been dismissed on merits, the appeal

of  Gopal  Sah must  meet  the  same  fate  must  now be

examined.  We observe that Bhushan Sah’s appeal had

been dismissed in limine on the ground of limitation as

also on merit but we have chosen to hear the present

appeal after leave had been granted by this Court long

before Bhushan’s special  leave petition had been filed.

10

We, even otherwise, are of the opinion that the evidence

involving  Bhushan  Sah  is  qualitatively  and

quantitatively different from the evidence against Gopal

Sah,  as  would  be  apparent  from  the  circumstances

noted above, not only with respect to the last seen but

also relating to the recovery of  various items from his

house which could be said to be relatable to the murder.

We must, therefore, conclude that the dismissal of the

special leave petition of Bhushan Sah in limine, would

not by itself be a ground to dismiss the appeal of Gopal

Sah.   

10. For the reasons stated above, we find the judgment of

the trial and the High Court in so far as Gopal Sah is

concerned  to  be  unsustainable.   He  is  accordingly

acquitted of all charges.  The appeal  is allowed in the

above terms.

……………………………..J. (DALVEER BHANDARI)

……………………………..J. (HARJIT SINGH BEDI)

11

New Delhi, Dated:  December 3, 2008

12