http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: PARAM HANS YADAV & SADANAND TRIPATHI

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT25/02/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1987 AIR  955            1987 SCR  (2) 405  1987 SCC  (2) 197        JT 1987 (1)   595  1987 SCALE  (1)426

ACT:     Indian  Evidence Act, 1872:ss.24 & 30--Confession  of  a co-accused--Not  Substantive  evidence  against  other   co- accused in the trial--Can be used only for lending assurance to  other  substantive  evidence--Extra-judicial  confession made following assault--Neither voluntary nor natural.     Indian Penal Code, 1860:s.302 read with s.  120-B--Death sentence-Direct  evidence--Accused  caught  red-handed--Con- fessed  to his crime--Conviction and sentence  upheld--Crime whether committed at the behest of co-accused--Where  prose- cution  relies upon circumstantial evidence a clear link  to be established and the chain completed to prove conspiracy.

HEADNOTE:     The  appellants were alleged to have conspired  to  kill the Collector-cure-District Magistrate. The latter died in a bomb  attack by the first accused appellant. He  was  caught red-handed  and  when given a beating  by  eye-witnesses  he readily  confessed  to his guilt, but gave out that  he  had committed  the  ghastly murder at the behest of  the  second appellant,  who was at that material time detained in  jail. He  made  a similar confession before the  Magistrate.  They were  both  convicted under s.302 read with s. 120B  of  the Indian Penal Code and sentenced to death. Their sentence was confirmed by the High Court. Disposing of the appeals, this Court,     HELD: 1. There was direct evidence of first  appellant’s involvement  in the crime and he had also confessed  to  his guilt. There was, therefore, no justification to take a view different  from  what has been said about him  by  the  High Court. His conviction as also sentence shall stand. [408F-G]     2.1  The prosecution has failed to establish by  circum- stantial evidence the complicity of the second appellant  in the  conspiracy  to  kill the Collector  through  the  first accused. He was, therefore, entitled to the benefit of doubt and his conviction was not sustainable. [413D] 406     2.2  Where  the prosecution relies  upon  circumstantial evidence  to support the charge of conspiracy, a clear  link has  to  be established and the chain has  to  be  complete, otherwise  it would indeed be hazardous to accept a part  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

the  link as the complete one. On the basis of  such  incom- plete circumstantial evidence, the allegation of  conspiracy cannot be accepted. [413C]     3.1  The confession of a co-accused is  not  substantive evidence against other co-accused persons in the same  trial but  could only be used for lending reassurance if there  be any other substantive evidence to be utilised or acted upon. [411C]     Kashmira  Singh v. State of Madhya Pradesh,  [1952]  SCR 526 and Hari Chand Kurmi & Anr. v. State of Bihar, [1964]  6 SCR 623, referred to.     3.2  The judicial confession of the main accused in  the instant case was exculpatory in nature and, therefore, would not be admissible against the co-accused. It has, to be kept out of consideration. [410A-B]     3.3  The extra-judicial confession of the  main  accused relates  to the point of time contemporaneous to  the  inci- dent.  There was evidence that he was beaten up badly  after being  apprehended  by the mob soon after  the  bomb  burst. Several prosecution witnesses have spoken about his  confes- sion  before  them.  There was clear material  that  he  was manhandled. [410B-C]     3.4 In his statement recorded under s.164 of the Code on 13.4.1983,  the main accused denied to have made any  state- ment following his apprehension. Even accepting the prosecu- tion  story that he made this statement, he appears to  have made  the statement following assault on him. Even if it  is accepted  that  he has made the statements as  alleged,  the same  cannot be utilised against the  co-accused.  Obviously when the accused was beaten up, he must have been anxious to ensure  that the assault stopped. His plea in such a  situa- tion would neither be voluntary nor natural. It would not be proper to rely upon the same for any purpose. [410H; 411A-B]      4. The 2nd appellant might have had grudge against  the Collector  for his detention as also for the  demolition  of his  Ashram. That must have been the common reaction of  all the  ashramites, including the co-accused. This  could  not, therefore,  be a feature to supply motive  for  establishing conspiracy. [412C-D] 407     5.1  Several  witnesses were examined to show  that  the main  accused  was  very close to the  co-accused.  But  the source  of their knowledge appeared to be statement  of  the main  accused and independently they had no personal  knowl- edge of the fact. [412B-C]     5.2 P.W.4, who testified that during his interview  with his  wife  in the same jail, he had  overheard  the  alleged conversation between the accused and the 2nd appellant,  was himself  a convict in three cases of murder. His  wife,  who was  a material witness has not been examined in  the  case. Adverse  inference, has to be drawn against the  prosecution for not doing so. [413A-B]     5.3  This type of evidence, even if accepted,  does  not establish conspiracy because the accused being a follower of the  2nd appellant, a religious preacher, he was  likely  in the  usual course to meet the latter and the fact that  they were meeting at regular intervals by itself would not estab- lish conspiracy. [412F]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 423-425 of 1986.     From the Judgment and Order dated 4.4.1986 of the  Patna

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

High  Court  in Death Reference No. 3 of 1984  and  in  Crl. Appeal No. 676, 647 and 627 of 1984. R.L. Kohli and S.P. Singh for the Appellants. Jaya Narayan and D. Goburdhan for the Respondents. The Judgment of the Court was delivered by     RANGANATH  MISRA, J. These appeals by special leave  are directed  against a common judgment of the Patna High  Court rendered  in Death Reference 3 of 1984 and  Criminal  Appeal No.  627,647 and 676 of 1984. Each of the appellants in  the two  appeals has been sentenced to death under  section  302 read with section 120-B of the Indian Penal Code.     Appellant  Yadav has independently been convicted  under section 302 of the Code and has been sentenced to death.  He has  also  been convicted under section 3 of  the  Explosive Substance Act and has been sentenced to ten years’  rigorous imprisonment. Two other accused persons who had been put  on trial along with the appellants were 408 acquitted by the trial court and their acquittal has  become final.     Mahesh Narain Prasad Sharma, the victim, was a Member of the Indian Administrative Service and was posted as  Collec- tor  and  District Magistrate of Gopalganj District  in  the State of Bihar on the 11th of April, 1983 Mahesh Narain went to  his court to work in the morning and after  he  finished his  work, both he and his brother, P.W.62, who was  waiting in  the  chamber of the victim started going down  from  the first  floor of the Collectorate to reach the portico  where the  Collector’s car was parked. Mahesh Prasad was  followed by his Orderly-Peon, P.W. 19, and his brother one after  the other. When the deceased came on the landing, Yadav who  was following  them suddenly took out a bomb from the bag  which he  held  and threw it at the Collector. The  bomb  exploded with a loud noise and as a result of the burst Mahesh Prasad fell  rolling on the ground and part of his body  was  blown off.  Yadav  jumped  off from the stairs  through  the  side railing  but was chased by P.W.62 and others and was  appre- hended near a fruit stall. He readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest  of appellant Tripathi. According to Yadav,  Tripathi had  prevailed  upon  him to kill the Collector  by  way  of retaliation for demolishing the Ashram after getting  Tripa- thi  detained in jail. Yadav further maintained that  Sadiq, one  of the accused persons, had supplied the bomb  to  him. P.W.14,  the Inspector of Police, who was attracted  to  the scene  by  the sound of the bomb burst  recorded  the  first information given by P.W.62, arrested Yadav and sent him  to Gopalganj Police Station.     At the trial, 75 witnesses were examined for the  prose- cution.  Out of them, the evidence of 14 had been  tendered. So  far as Yadav is concerned, there was direct evidence  of his  involvement  and he had also confessed  to  his  guilt. Special leave, so far as he is concerned, is limited to  the question  of  sentence. We have,  therefore,  heard  learned counsel  for  Yadav on the question of sentence and  see  no justification  to take a view different from what  has  been said about him by the High Court. His appeal, therefore,  is dismissed and his conviction as also sentence as awarded  by the trial court and confirmed by the High Court shall stand.     We  shall  now deal with the appeal  filed  by  Sadanand Tripathi.  Sadanand came from a poor family and started  his career as a Bus Conductor. While in employment, he  obtained the Degree in Law and started practice as a lawyer in  Uttar Pradesh  for some time. Thereafter, he started giving  reli- gious discourses and styled himself as Sant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

409 Gyaneshwar  Maharaj. He tried to make his followers  believe that  he  had  seen God and if they  followed  him  and  his preachings,  they too could see God. Soon he picked up  con- siderable following. He used to tell his followers that they should  surrender  their body, wealth and mind so  that  the prospect of seeing God would be bright. He encroached upon a plot of Government land and built his Ashram thereon. As  he had easy access to resources, the Ashram got fitted with all modern  amenities.  Soon  his  followers,  however,  started realizing that they had been duped and tricked and began  to withdraw  from him. Sadanand had employed a band  of  muscle men to carry out his nefarious designs. His followers  often became apprehensive of their own security and approached the local authorities for protection. The Ashram, as the  prose- cution  has tried to show, turned into a den  of  criminals. Ultimately  the  authorities raided  the  Ashram,  recovered bombs  and several other objectionable  articles  therefrom. Sadanand  and  many  others  were  taken  into  custody   on 10.7.1982. The deceased, Mahesh Prasad, who was Collector of Gopalganj made an order under the Crime Control Act  detain- ing  Sadanand  in jail. Eviction proceedings  from  the  en- croached land had already been undertaken. On 14.7.1982  the Commissioner  dismissed  the appeal filed on behalf  of  the Ashram  and on 15th July, 1982, the entire structure of  the Ashram  was demolished under the direct supervision  of  the Collector.     It is not disputed that from th July, 1982 Sadanand  had continuously  been  detained in jail  till  the  Collector’s murder  on 11.4.1983. In view of this fact, the  prosecution has relied upon the allegation of conspiracy, confession and other  features to establish the complicity of  Sadanand  in the murder of the Collector.     There are two confessions--a judicial confession  before a Magistrate, being Exhibit 44 and the other is extra  judi- cial confession. Dealing with Exhibit 44, the High Court has observed:-               "So  far as the confession before  the  Magis-               trate,  Exhibit  44, is concerned,  the  trial               court  has itself, hesitatingly, accepted  the               same.  From the confession I find that it  was               in  the nature of the cross-examination  which               is not permissible under the law and has  been               depricated by the Supreme Court and  different               courts  of  the country. Mr.  Pandey,  learned               counsel appearing on behalf of the State,  has               fairly  submitted  that Exhibit 44  cannot  be               used  in  this case. Therefore, it has  to  be               excluded from consideration." 410 Before  us  Mr. Jai Narain for the  State  initially  placed reliance  on  the confession but later conceded  that  apart from  what  the High Court has observed with regard  to  the confession,  it  appeared to be exculpatory in  nature  and, therefore,  would not be admissible against the  co-accused. In  these circumstances, the judicial confession has  to  be kept out of considerations.     Coming  to  the extra judicial confession it has  to  be remembered  that the same related to the point of time  con- temporaneous  to the incident. There is evidence that  Yadav was beaten up badly after being apprehended by the mob  soon after  the  bomb burst. Several prosecution  witnesses  have spoken  about Yadav confession before them. There  is  clear material that Yadav was man-handled. P.W.3 has stated:-               "He  was held by me and other persons  chasing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             him.  We  began to assault him  and  make  en-               quiries from him. Then the said person himself               said,  ’why  you people are assaulting  me.  I               have  killed  the  Collector by  bomb  at  the               orders  of Guru Sant Gyaneshwar and  one  bomb               has been left in the Jhola". P.W. 10 stated:               "The people who caught of him began to assault               him and began to ask him why has he killed the               Collector. On being asked, he replied that  he               had  killed the Collector under the orders  of               Baba  ................" P.W. 11 stated:-               "On  being  caught hold of, he  was  assaulted               with  slaps, fists and asked as to why he  did               so.  On being asked, the said  person  replied               that  he had hit the Collector by bomb at  the               orders of Guru." Several  other witnesses have also spoken in the same  trend about Yadav being assaulted by the angry mob soon after  his apprehension.  It  is a fact that a set  of  witnesses  who, according  to the prosecution, were present when  Yadav  was taken  into custody following the incident, have not  spoken about  any confession. They are P.Ws. 5, 12, 15, 40 and  57. In his own statement recorded under section 164 of the  Code on  13.4.1983, Yadav denied to have made any statement  fol- low- 411 ing  his apprehension. Even accepting the prosecution  story that Yadav made this statement, he appears to have made  the statement  following assault on him. Even if it is  accepted that Yadav has made the statements as alleged, can the  same be utilised against Sadanand is the next aspect for  consid- eration.  Obviously, when Yadav was beaten up, he must  have been anxious to ensure that the assault stopped. His plea in such a situation would neither be voluntary nor natural.  It would not be proper to rely upon the same for any purpose.     It  is well-settled that the confession of a  co-accused is not substantive evidence against other co-accused persons in  the  same trial. As this Court pointed out  in  Kashmira Singh v. State of Madhya Pradesh, [1952] SCR 526 the confes- sion of a co-accused is not substantive evidence against the other  accused persons at the trial but could only  be  used for  lending reassurance if there by any  other  substantive evidence to be utilised or acted upon.     In Hari Charan Kurmi & Anr. v. State of Bihar, [1964]  6 SCR 623 this Court observed:-               "Thus,  the  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  con-               fession of a co-accused person; it must  begin               with 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 the confession of               a  co-accused  person  cannot  be  treated  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

             substantive  evidence and can be pressed  into               service  only  when the court is  inclined  to               accept other evidence and feels the  necessity               of seeking for an assurance in support of  its               conclusion deducible from the said evidence ."      It is now to be found out if apart from the  confession there is any substantive evidence from which the prosecution can have support for its case. According to the prosecution, Yadav was staying with 412 Sadanand  in  the Ashram. Learned counsel for  Sadanand  has argued that the prosecution evidence on this score should be rejected as when on 10th July, 1982 Sadanand was taken  into custody  following  the raid on the Ashram,  Yadav  was  not found  there. Again on the 15th when the Ashram  was  demol- ished and most of the inmates were taken into custody, Yadav was not arrested.     Several other witnesses were examined to show that Yadav was very close to Sadanand. But as has been rightly  pointed out  the source of their knowledge appeared to be  statement of Yadav and independently they had no personal knowledge of the fact.     Prosecution  sought to place reliance upon  motive.  Un- doubtedly, Sadanand must have had grudge against the Collec- tor  for  his detention as also for the  demolition  of  the Ashram. As a matter of fact, that must have been the  common reaction  of all the ashramites including Yadav  and  Sadiq. Thus,  this  could not be a feature to supply the  link  for establishing conspiracy.     Prosecution also relied upon a feature, which if accept- ed, could provide some link between the two for the  commis- sion of the offence. According to the prosecution, Yadav was regularly visiting Sadanand at the jail. The jail records do not support such visits. According to the prosecution  case, Yadav  was bribing the jail officials for meeting  Sadanand. The prosecution has further led evidence to show that  after the  arrival of Sadanand at the jail, enforcement  of  rules became  slack  and  there was a regular flow  of  food  from outside.  Jail officials were also entertained by  Sadanand. This type of evidence, even if accepted, does not  establish conspiracy  because Yadav, being a follower, was  likely  in the  usual  course to meet Sadanand and the fact  that  they were meeting at regular intervals by itself would not estab- lish  conspiracy.  Prosecution relied on an  event  of  11th April,  1983  by  examining P.W.4. This witness  who  was  a convict staying in the same jail stated that his wife had an interview  with him in the jail by paying bribe of  Rs.2  or Rs.3 on 11.4.1983. While he was talking to his wife, he  saw accused  Yadav  talking  to Sadanand.  He  over-heard  Yadav telling Tripathi that his work would be done within an  hour or so. Sadanand appeared to be happy on being told so. P.W.4 has  admitted that he has been convicted in three  cases  of murder and several dacoities. It appears that by then he had some  pending  cases against him where  final  reports  were later  given  by  the police. His wife who  was  a  material witness has not been examined in the case. 413     Obviously,  as the jail records did not show that  P.W.4 had an interview with his wife that day, the story of  brib- ing the jail officials has been introduced. We are  prepared to accept the criticism of counsel for the appellant that if the  wife had been called she would not have  supported  the version that she met her husband P.W.4 on that day.  Adverse inference for not examining the wife has to be drawn against the prosecution. This would thus be the net position.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

   It  is  true as argued by Mr. Jai Narain for  the  State that  it  is difficult to support the charge  of  conspiracy with  direct evidence in every case but if  the  prosecution relies upon circumstantial evidence, a clear link has to  be established and the chain has to be completed, otherwise  it would indeed be hazardous to accept a part of the link as  a complete  one and on the basis of such incomplete  evidence, the allegation of conspiracy cannot be accepted. Keeping the nature  of the offence in view and the conclusions drawn  by the High Court, we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence  the  complicity of Sadanand in the  conspiracy  to kill  the Collector through Yadav. In  these  circumstances, Sadanand  has become entitled to the benefit of  our  doubts and his conviction is not sustainable. His appeal has to  be allowed. He is acquitted and is directed to be set at liber- ty forthwith.     Before we part with the case, we must point out that  in a  case involving the killing of the District Magistrate  in his office, better investigation was expected and the  State should  have taken great care to ensure that every  loophole in  the investigation was plugged at the fight time  in  ac- cordance  with law. It is unfortunate that lapses  have  oc- curred. P.S.S.                                         Appeals  dis- posed of. 414