Jharkhand High Court
Horo Surin vs The State Of Bihar (Now Jharkhand) on 1 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:17647-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 331 of 1999 (R)
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(Against the Judgment of conviction and order of sentence dated 06.09.1999
passed by learned First Additional Sessions Judge, Chaibasa, in Sessions
Trial No. 244 of 1996 and Sessions Trial No. 157 of 1997.)
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1. Horo Surin, son of Jonko Surin (34 years).
2. Soma Surin, son of Turi Surin (24 years).
3. Jonko Surin, son of Duka Surin (35 years).
All are resident of Village Sonapi, P.S. Gua, District-Singhbhum (West).
... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Ms. Amrita Sinha, Amicus Curiae
For the Resp.-State : Mr. Bhola Nath Ojha, APP
.....
th
C.A.V./Reserved on 20 June, 2025 Pronounced on 01 /07 /2025
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure,
has been preferred against the Judgment of conviction and order of sentence
dated 06.09.1999 passed by learned First Additional Sessions Judge,
Chaibasa, in Sessions Trial No. 244 of 1996 and Sessions Trial No. 157 of
1997, whereby and whereunder, the appellants have been convicted and
sentenced to undergo rigorous imprisonment for life under Section 302/34 of
IPC as also rigorous imprisonment for life under Section 364/34 of IPC. The
appellants have further been sentenced to undergo rigorous imprisonment for
five years under Section 201/34 of IPC. All the sentences have been directed
to run concurrently.
2025:JHHC:17647-DB
The appellant nos.1 and 3 have been directed to pay fine of Rs.
2,000/- under the aforesaid sections and in default of payment of fine, they
have to further undergo rigorous imprisonment for two years. However, no
fine has been imposed upon the appellant no.2.
Factual Matrix
2. Both the sessions cases have arisen out of one and the same occurrence in
connection with Gua P.S. Case no. 10 of 1996 corresponding G.R. Case No.
74 of 1996 and as such, both the trials were amalgamated and the accused
persons of both the trials were charged together on 11.6.1998.
3. The prosecution story in brief as per the allegation made in the fardbeyan by
the informant, Sukurmoni Deogam (P.W.-4) on 20.02.1996, read as under:
The informant has stated that on 12.02.1996, at 12:30 hours her
husband Lakshman Deogam aged about 40 years (deceased) proceeded from
his house wearing pant, shirt and Jacket of Indian red colour (Kathai colour)
and green cap, for Manoharpur Block for obtaining Caste Certificate in the
name of his son Rajaram Deogam for getting him admitted in the residential
school at Chhota Nagara, asking the informant that he would come back on
Wednesday next. Her husband did not come back at the house on
Wednesday, then the informant started making search of him. She made
enquiry from her co-villagers and the residents of the vicinity but she did not
get any clue of the whereabouts of her husband. Then, she went to the
village of her father at Tetlighat and she asked her uncle Lebeya Sidu to
make enquiry of the whereabouts of her husband. Aforesaid Lebeya Sidu
after enquiry, informed her on 19.02.1996 that on 12.02.1996 at 02:00 p.m.
the residents of village Sonapi for some reason or the other had caught hold
2 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBof her husband at the hillock near Sonapi on the way from Chhota Nagara to
Manoharpur and they had taken him to Jungle side for committing his
murder. Lebeya Sidu gave further information to the informant that the
residents of village Sonapi had also taken Ghasiram Sidu of Tetlighat along
with her husband who also did not return home. Lebeya Sidu further
disclosed to her that Sukhram Munda of village Sonapi and others had hands
in the aforesaid occurrence of abduction of Lakshman Deogam and
Ghasiram Sidu. Then she narrated everything to Munda (P.W.3) of her
village who also started making further enquiry in connection with the
aforesaid occurrence. She had no information as to whether her husband had
any enmity with the residents of village Sonapi. She believed that Sukhram
Munda and others had abducted her husband for committing his murder.
On investigation, the police concluded the investigation and submitted
the Chargesheet no. 11 of 1996 dated 21.05.1996 against the 6 accused
persons namely 1. Sukhram Munda 2. Hori Surin 3. Pandu Surin 4. Soma
Surin 5. Pandu Balmuchu and 6. Behra Balmuchu and kept the investigation
continued against the rest suspects.
Subsequently, Surdan Sarika @ Surdhan Bading, on arrest, was
produced before the Chief Judicial Magistrate on 27.05.1996 and he was
remanded to custody. Supplementary Chargesheet bearing no. 41 of 1996
dated 18.08.1996 was submitted against Surdhan Sarika @ Sudhran Bading.
Accordingly, cognizance was taken against him and his case was committed
to the Court of Sessions. On receipt of record, Sessions Trial no. 3/97 was
registered. Subsequently, Jonko Surin on arrest was remanded to custody on
03.02.1997. Supplementary Chargesheet no.7 of 1997 dated 28.02.1997 was
3 Cr. Appeal (DB) No. 331 of 1999 (R)
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submitted under sections 302/201/34 of the I.P.C. The learned S.D.J.M.
Sadar Chaibasa committed the case of the aforesaid accused person in
custody namely, Jonko Surin to the court of Sessions. On receipt of the
commitment record Sessions Case no. 157 of 1997 was registered.
Both the sessions cases were transferred to the court of 4th Additional
Sessions Judge, eventually, both the sessions cases were transferred to the
Sessions Court and were heard analogous after amalgamating the cases
together.
4. Accordingly, the trial proceeded and the appellants were found guilty by the
learned trial court for the offence under Section 302/34 and 364/34 of IPC as
also under Section 201/34 of IPC and have been sentenced to undergo
rigorous imprisonment for life under Section 302/34 of IPC as also rigorous
imprisonment for life under Section 364/34 of IPC. The appellants have
further been sentenced to undergo rigorous imprisonment for five years
under Section 201/34 of IPC. All the sentences have been directed to run
concurrently.
The appellant nos.1 and 3 have been directed to pay fine of Rs.
2,000/- under the aforesaid sections and in default of payment of fine, they
have to further undergo rigorous imprisonment for two years. However, no
fine has been imposed upon the appellant no.2.
5. The aforesaid judgment of conviction and sentence is under challenge
herein.
Submission of the learned counsel for the Appellants:
4 Cr. Appeal (DB) No. 331 of 1999 (R)
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6. Learned counsel for the appellants has taken the following grounds for
interfering with the finding recorded by the learned trial court in the
impugned judgment:
(i) The conviction is based upon the confession made by the co-accused
person, namely, Sukhram Munda on whose confession, two dead
bodies have been recovered. It has been contended that the confession
of an accused-person cannot be used against another co-accused
persons.
(ii) The conviction of these appellants has also been made on the basis of
last seen of alleged abduction of the deceased but the said abduction
of deceased was said to be on 12.02.1996 while for about seven days,
no missing report was there and only on 20.02.1996 the FIR was
instituted for commission of alleged offence under Section 364 of IPC
and subsequently, Section 302 has also been added.
(iii) There is inordinate delay in instituting the First Information Report
and no sufficient explanation has been offered for the same.
7. The learned counsel for the appellants, based upon the aforesaid grounds,
has submitted that the learned trial court has not taken into consideration the
aforesaid facts, as such, the impugned judgment requires interference, hence
not sustainable in the eyes of law.
Submission of learned counsel for the Respondent-State:
8. While defending the judgment of conviction and sentence, the learned
Additional Public Prosecutor appearing for the State has raised the following
arguments in response to the grounds raised by the learned counsel for the
appellant that:
5 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB(I) It has been submitted that the abduction of Ghasiram Siddu from near
his house has been seen by his father, namely, Patar Sindu but the said
Patar Sindu had died, as such, no evidence was brought on record on
the point of his abduction but P.W.-5 has seen the deceased Lakshman
Deogam being abducted although no eye witnesses is there to prove
the offence committed under Section 302 and 201 of IPC but on the
basis of circumstantial evidence brought on record, offence under
Section 302 and 201 has been found to be proved along with Section
364 of IPC.
(II) It is argued that the trial court has considered and elaborately
discussed the material evidence in its correct perspective and the
judgment of conviction and order of sentence is based on the evidence
marshalled out during the trial and it does not require any interference
by this Court.
(III) So far as the delay in institution of FIR is concerned, argument has
bene advanced that the deceased informed his wife on Monday, i.e.,
on 12.02.1996 that he will return till Wednesday, as such, she waited
till Wednesday and when the deceased did not come back, she went
for his search and in course thereof, she found that her husband has
been abducted by the aforesaid accused persons, therefore, the delay
in institution of the FIR has been caused, hence, the same cannot be a
ground for disproving the prosecution case.
9. The learned Additional Public Prosecutor appearing for the respondent-
State, based upon the aforesaid premise, has submitted that the impugned
6 Cr. Appeal (DB) No. 331 of 1999 (R)
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judgment does not suffer from any error, hence the instant appeals are fit to
be dismissed.
Analysis
10. We have heard learned counsel for the parties, perused the documents
available on record as also the finding recorded by the trial court in the
impugned judgment.
11. We have also gone through the testimonies of the witnesses as available in
the LCR as also the exhibits appended therewith.
12. Learned trial court, based upon the testimonies of witnesses, has passed the
judgment of conviction and has convicted the appellants and sentenced to
undergo rigorous imprisonment for life under Section 302/34 of IPC as also
rigorous imprisonment for life under Section 364/34 of IPC. The appellants
have further been sentenced to undergo rigorous imprisonment for five years
under Section 201/34 of IPC. All the sentences have been directed to run
concurrently.
The appellant nos.1 and 3 have been directed to pay fine of Rs.
2,000/- under the aforesaid sections and in default of payment of fine, they
have to further undergo rigorous imprisonment for two years. However, no
fine has been imposed upon the appellant no.2.
13. This Court before considering the argument advanced on behalf of the
parties is now proceeding to consider the testimonies of witnesses which
have been recorded by learned trial Court. The learned trial court during the
trial has altogether examined seven witnesses and testimony of the same is
required to referred herein.
7 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
14. P.W.1, Dr. Shiv Shankar Birua was posted at Sadar Hospital at Chaibasa
as C.A.S. On 26.02.1996 the dead bodies of 2 deceased namely Lakshman
Deogam aged about 40 years and Ghasiram Sidu aged about 42 years were
brought, identified by constable Ram Jiwan Ram. He performed postmortem
examination on the dead body of Lakshman Deogam at 10.45 a.m. on
26.02.1996 and he found the following:-
i. The whole body of Lakshman Deogam was found decomposed, Dead
body was swollen. The whole body including the cloth of dead body of
Lakshman Deogam had particles of sand. The dead body was emitting
foul smell and skin was black.
ii. Skin and muscle of chest and buttock had been nibbed away.
iii. Maggots were found crawling over the body.
iv. Eyes and mouth were closed. Muscle of both hands were nibbed away.
On dissection of head and neck no abnormality was detected. On
dissection of chest 8 stabs wounds few inches apart were found on left side
of chest size of each being 1/2”x 1/2” entering into the chest cavity. He also
found 2 stab wounds on right side of chest being 1/2”x 1/2″ entering into the
chest cavity. Clotted blood was found inside the chest cavity. On dissection
of abdomen, stomach was found empty. Urinary bladder was also empty.
Cause of death due to multiple stab injuries resulting in haemorrhage and
shock. The injuries were caused by sharp penetrating weapon. Injuries were
sufficient to cause death in ordinary course of nature. Time elapsed since
death within 3 weeks from the time of postmortem examination. If the body
after death is kept in watery sands process of decomposition starts late. In
such case process of decomposition starts normally after 72 hours of death
8 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBand process of decomposition may take to one month or two months’ time to
complete.
On cross-examination he stated that he was not knowing and
identifying the deceased from before. Both the dead bodies were completely
decomposed. Weapon of assault was not produced before him. He
ascertained the size of injury on measurement.
15. P.W.2. Gangadhar Gope has stated in para 3 that on 25.02.1996 Sukhram
Munda in presence of S.I. of police had confessed that he would show the
dead body of Lakshman Deogam and Ghasiram Siddu which were buried.
The S.I. of Police had brought Sukhram Munda at village Sonapi. He and
Natho Tatera (P.W.7) and other villagers were also with them. He stated in
para 6 that Sukhram Munda had led the S.I. of Police in the field which was
situated at a distance of 250 yards from the house of Horo Surin and Pandu
Surin. He along with Natho Tatera and other villagers were also there. He
stated in para 5 that Sukhram Munda pointed out the place stating that dead
body of Ghasiram Siddu was buried there by the side of ridge of the field.
Sukhram Munda himself took out the dead body of Glhasiram Siddu by
means of Spade being buried under the earth 3 to 3½ ft deep. He stated in
para 6 that he identified the dead body of Ghasiram Siddu. The mother of
accused Horo Surin was also there. She also identified the dead body. The
dead body was brought on the truck. He further stated that in his presence
Sukhram Munda disclosed before the S.I. of Police (P.W.6) that he had
buried the dead body of Lakshman Deogam under the sand by the side of
river of his field. Sukhram Munda led the S.I. of Police at the banks of
Surako river at village Sonapi. In his presence and also in presence of Natho
9 Cr. Appeal (DB) No. 331 of 1999 (R)
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Tatera, Sukhram Munda by removing 3 to 3½ ft deep sand got recovered the
dead body. He identified the dead body which belonged to Lakshman
Deogam. The other persons present there also identified the dead body. He
stated in para 7 that S.I. of Police had prepared the inquest in carbon process
on the place from where from the dead body of Lakshman Deogam was
recovered and he put his signature (Ext.2/1) on the inquest. He has also
identified his signature (Ext.2) on the inquest of dead body of Ghasiram
Siddu. He has identified Sukhram Munda in dock.
16. P.W.3, Lakshman Deogam who is a village Munda has stated that two and
half years before in the morning of Tuesday, Sukurmoni on coming to his
house, informed that her husband had gone to Manoharpur on the Preceding
Monday for obtaining Caste Certificate for the admission of his son Rajaram
in a school but her husband did not come back of his house. She further
informed him that she was searching her husband. On the aforesaid
information he along with other villagers also started making search of
deceased Lakshman Deogam. On the next Monday he informed the S.I. of
police that Lakshman Deogam (deceased) was not being traced out. The S. I.
of Police came in the village on Tuesday. He stated in para 2 that the S.I. of
police visited the house of deceased, Lakshman Deogam. He has also gone
there. The S.I. of police recorded the fardbeyan of Sukurmoni who gave her
statement on fardbeyan in Ho’ language. He interpreted the statement of
Sukurmoni from ‘Ho’ to Hindi and then the S.I. of police recorded the
statement of Sukurmoni and then he got explained the contents of the
statement of Sukurmoni in ‘Ho’ language. Sukurmoni, found the statement
correct and gave her L.T.I. thereon. He also put his signature on the
fardbeyan of Sukurmoni as a witness. P.W.-2, Gangadhar Gope who is
10 Cr. Appeal (DB) No. 331 of 1999 (R)
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resident of village Chhota Nagara was a Surpanch of Chhota Nagara
Panchayat. On 12.02.1996 he was sitting in the verandah of his house by the
side of the road. At about 3 p.m. on 12.02.1996 he found Lakshman
(Deceased) and Gaju Honhaga (P.W.5) going on the road taking he-buffalo
with them. He asked Gaju Honhaga as to from where he has brought, he-
Buffalo, then he informed him that he had brought he-buffalo from
Chintamoni Munda of village Baihatu and he was taking the he-buffalo at
his house. Then both proceeded ahead. He stated in para 8 that Chintamoni
Munda also subsequently informed him that he had given he-Buffalow to
Gaju Honhaga.
17. P.W.4, Sukurmoni Deogam who is the wife of deceased Lakshman
Deogam and the informant of this case has stated that on Monday at mid-day
her husband Lakshman Deogam proceeded from his house for Manoharpur
for obtaining Caste Certificate in the name of his son Rajaram for the
purpose of his admission in a school. Her husband did not come back in the
house. Then she started searching her husband. She gave information to
Lakshman Deogam (P.W.3). In course of search of her husband she went to
village Tetlighat on Thursday. Lebeya Siddu (not examined) of village
Tetlighat asked her not to make further search of her husband and not to
weep for him since the villagers of Sonapi had committed the murder of her
husband. He further informed her that Sukhram Munda of village Sonapi
(accused) caught hold of her husband on the way and he tied him and
brought him at his village. He further informed her that Sukhram Munda has
also brought Ghasiram Sidu (deceased) from near his house at village
Sonapi. She stated in para 2 that she narrated everything to village Munda,
Lakshman Deogam (P.W.3) on the next Tuesday. The S.I. of police came in
11 Cr. Appeal (DB) No. 331 of 1999 (R)
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her village. She gave statement (Farabeyan) in ‘Ho’ language before the
police officer. The persons present there explained the contents to her in
Hindi. The man who has interpreted her statement from ‘Ho’ language to
Hindi also read over the contents of her statement and then she put her L.T.I.
thereon. She has identified the accused in dock. The S.I. of Police also read
over the contents of her statement to her. She has given information to
village Munda (P.W.3) on the third day, the day of Thursday. The S.I. of
police recorded her statement after one week of giving information to village
Munda that her husband did not come back to his house. On the 3rd or 4th day
of the departure of her husband from his house for Manoharpur, she met
Lebeya Siddu at the house of her father.
18. P.W.5, Gaju Honhaga has stated in para 1 that on 12.02.1996 at 2 p.m. he
had taken he-Buffalo from Chintamoni Munda of village Baihatu and he was
taking he-buffalo at his house. On the way to his village home, he met
Lakshman Deogam (deceased). He also met Gangadhar Gope (P.W.2) on the
way to his house. He further stated that he met deceased, Lakshman Deogam
on the way to his house in village Chhota Nagara. Aforesaid Lakshman
Deogam (deceased) was going to village Maraponga. On meeting with him
Lakshman Deogam proceeded ahead in his company. He further stated that
when he along with Lakshman Deogam (deceased) arrived on road in village
Sonapi, Sukhram Munda and Horo Surin (accused persons) and 3 unknown
persons arrived there. Sukhram Munda asked him to proceed ahead with he-
Buffalo and Sukhram Munda, Horo Surin and 3 unknown caught hold of
Lakshman Deogam (deceased) and he on seeing Lakshman Deogam in the
custody of aforesaid 5 persons he proceeded taking his he-Buffalo with him.
He has identified Sukhram Munda and Horo Surin in dock. He has also
12 Cr. Appeal (DB) No. 331 of 1999 (R)
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identified Jonka Surin, Pandu Balmuchu and Soma Surin on seeing them
from face and has stated that the aforesaid 3 persons had come near him
along with Sukhram and Horo Surin.
He stated in cross-examination in para 3 that on the way to his house
he met none except Lakshman Deogam (deceased). On cross-examination he
further stated that he has been seeing the three accused persons whom he had
identified in the dock by seeing their face from his childhood. Since those
persons used to visit his village but he was not knowing the names of those 3
persons. He further stated on cross-examination that in his presence the
accused persons had caught hold of Lakshaman Deogam. He further stated
that all the 5 accused persons had appeared on the scene but only Sukhram
Munda has caught hold of Lakshman Deogam.
19. P.W.-6, Yogendra Das was posted as Officer-in-charge of Gua P.S. On
20.02.1996 at 10 a.m. he heard rumour at Gua Bazar that Lakshman Deogam
who has gone to Manoharpur on Mondayon 12.02.1996 did not come back at
his house. Probably his murder was committed. He made Station Diary
Entry of the aforesaid information vide Station Diary Entry no. 348 dated
20.02.1996. He proceeded from police station for village Jojogutu along
with A.S.I., Arjun Sharma, Constable Kailash Ram and members of Armed
forces on Jeep. He arrived at village Jojobatu on 12.30 hours. He met
Sukurmoni Deogam. Lakshman Deogam (P.W.3) was also there. He
recorded the fardbeyan of Sukurmoni Deogam. She has given her statement
in Ho language. Munda Lakshman Deogam (P.W.3) interpreted her
statement from ‘Ho’ to Hindi. Then he recorded the statement of Sukurmoni
Deogam. Lakshman Deogam (P.W.3) explained the contents of the
13 Cr. Appeal (DB) No. 331 of 1999 (R)
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fardbeyan to Sukurmoni Deogam in ‘Ho’ language and then Sukurmoni
found the contents correct and gave her L.T.I. thereon and Lakshman
Deogam (P.W.3) put his signature as a witness. The fardbeyan recorded by
him is Ext. 3. He recorded the statement of Lakshman Deogam (P.W.3),
Rajaram Ram Deogam, Mangal Deogam, Lebeya Surin, Ghasiram Deogam
and Kuso Surin.
At 2.30 p.m. he proceeded from Jojogutu and came at village Chhota
Nagara at 3 p.m.. He recorded the statement of Surpanch, Gangadhar Gope
(P.W.2). Then he came in the village Ponga at 4 p.m. He recorded the
statement of Ganju Honhaga (P.W.5). He took Ganju Honhaga with him and
went on muddy road in village Sonapi. He inspected the 1st place of
occurrence (from where Lakshman Deogam was abducted). The 1st place of
occurrence is a Rasta in village Sonapi which has started from Chhota
Nagara leading towards Manoharpur. He found Jamun and Mahuwa trees in
southern side of the way. He also found trees in the northern side of the way.
That place was a lonely place. Then he came at village Sonapi. He made
search of Sukhram Munda and Horo Surin but they were not traced out.
From village Sonapi he went to village Tetlighat and recorded the statement
of Patar Sindu (Para 21 of case diary). He inspected the second place of
occurrence in village Tetlighat which was a muddy road. The aforesaid place
(from where Ghasiram Sidu was abducted) was situated at the distance of
100 Metres from the house of Patar Sindu. In the West side of 2nd place of
occurrence there was hillock and forest and each side of 2 nd place of
occurrence there is house of Patar Sindu. In the northern side of P.O. there
was forest and hillock and southern side of the 2 nd P.O. there was a house of
Lebeya Sidu.
14 Cr. Appeal (DB) No. 331 of 1999 (R)
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He made search of Roya Champia and Lebeya Sidu but they were not
traced out. He also searched Koi Siddu and Janam Siddu but they were also
not traced out. He proceeded from village Tetlighat and came back at police
station at 8 p.m. He had brought the fardbeyan with him at the police station.
At 9 a.m., he instituted the case after drawing up formal F.I.R. (Ext.4) which
is written and signed by him. In the next morning, he sent the F.I.R to the
Court.
On 21.2.96 he came in the village Tetlighat at 9.30 p.m. He searched
Roya Champia and Lebeya Siddu (accused persons) but they were not traced
out. He also made search of Koi Siddu and Janam Siddu but they were also
not found. He came to village Sonapi. He made search of Sukhram Munda
and Horo Surin (accused) but they were also not traced out. He recorded
statement on fardbeyan on 21.02.1996 at village Jojogutu.
P.W.6 has stated in para 7 that on 25.02.1996 he arrested Sukhram
Munda on the way from Chiria to Manoharpur. He brought him at village
Chhota Nagara. He recorded his confessional statement. He confessed before
him that on receiving information from Dursu (Durso) Bading and Surdhan
Karika (Surdan Karika) @ Surdha Bading, he caught hold of Lakshman
Deogam on the way with the help of Horo Surin, Pandu Surin and Soma
Surin and brought him at village Sonapi and on 13.02.1996 he caught hold
of Ghasiram Sidu from his house and brought him at Sonapi and with the
help of co-accused Roya Champia, Lebeya Siddu, Horo Surin, Pandu Surin
and Soma Surin committed the murder of aforesaid two persons on
14.02.1996 at village Sonapi and with the help of co-accused namely Horo
15 Cr. Appeal (DB) No. 331 of 1999 (R)
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Surin, Soma Surin, Budhu Bading, Machu Bading, Ram Bading, Ghasiram
Siddu and Jonko Surin concealed the dead body of Lakshman Deogam under
the sand in Ponga Nalia and concealed the dead body of Ghasiram Siddu by
burying his dead body in the field which was situated in the West of the
house of co-accused Horo Surin.
P.W.6 further stated in para 8 that he brought Sukhram Munda in the
field of Horo Surin at village Sonapi. In presence of Gangadhar Gope
(P.W.2) and Natho Tatera (P.W.7), Sukhram Munda pointed out the place
from where the dead body of Ghasiram Siddu was recovered. He inspected
the dead body of Ghasiram Siddu and prepared the inquest report in carbon
process in presence of Natho Tatera (P.W.7) and Bidhya Gope. On his
dictation A.S.I. Arjun Sharma has written the inquest and he put his
signature thereon and, in his presence, witnesses also signed the inquest
which is Ext. 5.
He stated in para-9 that he brought Sukhram Munda at Ponga Nala at
village Sonapi. Sukhram Munda pointed out the place from where the dead
body of Lakshman Deogam was recovered being buried in the heap of sand
of Ponga Nala. Some portion of the dead body was inside the heap of sand
some portion was visible. The dead body of Lakshman Deogam was taken
out. He inspected the dead body in presence of Surpanch, Gangaghar Gope
(P.W.2) and Mukhia, Natho Tatera (P.W.7). He prepared the inquest in
carbon cop. On his dictation A.S. I, Arjun Sharma prepared the inquest.
He stated in para 10 that he brought the two dead bodies in village
Chhota Nagara, Patar Sindu who is the father of deceased Ghasiram has
identified the dead body of his son and Sukurmoni (P.W.4) the wife of
16 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
deceased Lakshman Deogam has identified the dead body of her husband,
Lakshman Deogam. He forwarded the dead body (for post-mortem
examination) through constable Jiwan Ram and A.S.I. Gopal Prasad Rajak.
He stated in para 11 that on 01.03.1996 he arrested Horo Surin from
his house at village Sonapi. He arrested Pandu Balmuchu and Behra
Balmuchu on 12.03.1996 from their houses at village Jojogutu. He arrested
Pandu Surin and Soma Surin at village Sonapi on 07.04.1996. He arrested
Surdan Karika from his house on 25.05.1996. He arrested Lebeya Siddu
from his house on 29.01.1997. He arrested Jonko Surin on 04.02.1997. On
17.02.1997 Manki has produced Roya Champia at the police station and then
he was detained in custody. The confessional statement of Sukhram Munda
is written and signed by him.
In para 14 he has stated that he did not get any eye witness of the
occurrence. He stated that witnesses had given statement claiming to have
seen the deceased persons being taken by the accused persons. The father of
Ghasiram has disclosed before him that the accused persons had taken
Ghasiram.
20. P.W.7, Natho Tatera was Mukhia of Chhota Nagara Panchayat from 1977
to 1996. He stated that on 25.02.1996, S.I. of police of Gua P.S. visited
Panchyat Bhawan of Chhota Nagara, Panchayat. He had accompanied the
S.I. of Police. He along with S.I. of Police went to village Sonapi. He further
stated that at village Sonapi on being asked by the S.I. of Police, Sukhram
Munda confessed that he along with his villagers committed the murder of
Ghasiram Siddu and Lakshman Deogam by assaulting them by means of
lathi and tangi on their abduction and buried the dead body of Ghasiram
17 Cr. Appeal (DB) No. 331 of 1999 (R)
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Siddu and also buried the dead body of Lakshman Deogam in Ponga Nala.
He stated in para 2 that he along with the S.I. of the Police (P.W.6),
Surpanch, Gangadharpur Gope (P.W.2) and accused Sukhram Munda went
to the field. On going to the field, Sukhram Munda pointed out the place in
the field from where the dead body was found buried. The dead body was
taken out. That dead body was of Ghasiram Siddu. The S.I. of Police visited
the dead body and prepared the inquest over which he put his signature (Ext.
2/2).
He stated in para 3 that Sukhram Munda had taken them at Ponga
Nala at village Sonapi. He pointed out the place in Ponga Nala where the
dead body was buried in the heap of sand. The dead body was taken out. The
dead body was of Lakshman Deogam. The S. I. of police inspected the dead
body and prepared the inquest. He put his signature (Ext.2/3) thereon. He
has identified accused Sukhram Munda in dock. He stated in pra 5 that Patar
Siddu had died on 18.07.1999. He stated on cross-examination that when he
visited the house of Sukhram Munda along with S.I. of police he has found
Sukhram Munda by the side of his house. The S.I. of police had called him
and interrogated him.
21. At this juncture, it would be apt to reiterate the contention of the parties.
Learned counsel for the appellants has argued that the trial court has
committed manifest error in not appreciating the fact that the conviction is
based upon the confession made by the co-accused person, namely, Sukhram
Munda on whose confession, two dead bodies have been recovered and the
same cannot be used against another co-accused persons. The ground of
delay in instituting the FIR has also been taken that there is inordinate delay
18 Cr. Appeal (DB) No. 331 of 1999 (R)
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in instituting the First Information Report and no sufficient explanation has
been offered for the same
22. On the aforesaid grounds it is emphatically contended that the impugned
judgment is not sustainable in law or on facts and deserves to be set aside.
23. Per contra, learned APP has contended that just because the FIR has been
lodged after delay, the same cannot be a ground for disproving the
prosecution case.
24. Learned Additional Public Prosecutor has also submitted that although there
is no eye witness of the commission of crime of murder but the P.W.-5 has
seen the accused persons abducting the deceased Lakshman Deogam which
itself creates doubt to believe the commission of crime of murder as also
much emphasis has been given that on the confession of Sukhram Munda,
co-accused, the dead body of Lakshman Deogam and Ghasiram Siddu were
recovered.
25. In the backdrop of the aforesaid factual aspect, this Court in the instant case
is to consider following issues: –
(i) Whether the material as has come in course of trial is sufficient to
attract the ingredients of offence committed under Section 302/34
or under section 364/34 of the Indian Penal Code? or
(ii) Whether the identification of the appellants in the dock for the
first time by one of the prosecution witnesses i.e. P.W.5, that too,
after nearly 3 years from the date of occurrence can be relied
upon without any other corroborative evidence?
19 Cr. Appeal (DB) No. 331 of 1999 (R)
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(iii) Whether the confession of one co-accused based upon which the
dead body of victim has been recovered can be used as sole
evidence against the present appellants in order to convict them
for the alleged offence
(iv) Whether the appellant is entitled for acquittal in absence of
cogent evidences?
26. Before appreciating the said issues, it would be apt to mention herein the
admitted facts of the instant case, which are as follows:
(i) The alleged offence is in two parts. First part is related with the
offence of kidnapping and second part is related to the murder of
kidnapped deceased.
(ii) P.W.5 is the eyewitness of 1st part of the alleged crime and for the 2nd
part of the offence there is no direct evidence is available on record
against the present appellants.
(iii) Admittedly the complicity of the present appellants in the alleged
crime has surfaced in the instant case on the basis of the confessional
statement of the co-accused namely Sukhram Munda.
(iv) The dead bodies of deceased have been recovered on the basis of the
confessional statement of the co-accused namely Sukhram Munda.
(v) The present appellants have been identified on the dock by the P.W.5
during course of trial.
(vi) P.W.5 has categorically admitted that he had already seen the
aforesaid appellant/accused persons in his village since childhood,
20 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBtherefore he was acquainted with them but he had no idea about the
name of the present appellants.
27. Before embarking upon the legal issue, we may notice the definition of
kidnapping and abduction, as contained in Sections 359 and 362 of the Penal
Code which are in the following terms:
“359. Kidnapping.–Kidnapping is of two kinds : kidnapping from India, and
kidnapping from lawful guardianship.
362. Abduction.–Whoever by force compels, or by any deceitful means induces,
any person to go from any place, is said to abduct that person.”
28. This Court deems fit and proper to refer herein the ingredients of Section
364 of the IPC. For ready reference the Section 364 of the IPC is being
quoted as under:
364. Kidnapping or abducting in order to murder.–Whoever kidnaps
or abducts any person in order that such person may be murdered or
may be so disposed of as to be put in danger of being murdered, shall
be punished with 364[imprisonment for life] or rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to
fine.
29. The Hon’ble Apex Court in the case of Badshah v. State of U.P., (2008) 3
SCC 681 while appreciating the ingredients of Section 364 has observed that
the intention for which a person is kidnapped must be gathered from the
circumstances attending prior to, at the time of and subsequent to the
commission of the offence. A kidnapping per se may not lead to any
inference as to for what purpose or with what intent he has been kidnapped,
for ready reference the relevant paragraph is being quoted as under:
“13. Ingredients of the said offence are (1) kidnapping by the accused
must be proved; (2) it must also be proved that he was kidnapped in
order to; (a) that such person may be murdered; or (b) that such
person might be disposed of as to be put in danger of being murdered.
21 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBThe intention for which a person is kidnapped must be gathered from
the circumstances attending prior to, at the time of and subsequent to
the commission of the offence. A kidnapping per se may not lead to
any inference as to for what purpose or with what intent he has been
kidnapped.”
30. Thus, from perusal of the aforesaid Section it is evident that the intention to
kidnap in order that he may be murdered or may be so disposed of as to be
put in danger as murder, satisfies the requirements of Section 364 of the
Penal Code.
31. Further in order to appreciate the element of kidnapping it would be apt to
discuss difference between the provisions of Section 361 read with Sections
363, 364 and 364-AIPC ought to be compared. The said provisions read as
under:
“361. Kidnapping from lawful guardianship.–Whoever takes or
entices any minor under sixteen years of age if a male, or under
eighteen years of age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.
Explanation.–The words “lawful guardian” in this section include
any person lawfully entrusted with the care or custody of such minor
or other person.
Exception.–This section does not extend to the act of any person who
in good faith believes himself to be the father of an illegitimate child,
or who in good faith believes himself to be entitled to the lawful
custody of such child, unless such act is committed for an immoral or
unlawful purpose.
363. Punishment for kidnapping.–Whoever kidnaps any person
from India or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.
364-A. Kidnapping for ransom, etc.–Whoever kidnaps or abducts
any person or keeps a person in detention after such kidnapping or22 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBabduction, and threatens to cause death or hurt to such person, or by
his conduct gives rise to a reasonable apprehension that such person
may be put to death or hurt, or causes hurt or death to such person in
order to compel the Government or any foreign State or international
inter-governmental organisation or any other person to do or abstain
from doing any act or to pay a ransom, shall be punishable with death,
or imprisonment for life, and shall also be liable to fine.”
32. Thus, it is evident that Section 363 punishes the act of kidnapping and
Section 364 thereof punishes the offence of kidnapping or abduction of a
person in order to murder him. Section 364-A further adds to the gravity of
the offence by involving an instance of coercive violence or substantial
threat thereof, to make a demand for ransom. Accordingly, the maximum
punishment for the three crimes is seven years’ imprisonment; ten years’
imprisonment and imprisonment for life or death, respectively.
33. Thus, in order to establish the offence punishable under Section 364 of the
IPC, it must be proved that the person charged with the offence had the
requisite intention at the time of abduction, that the person so abducted
would be murdered or would be disposed of as to be put in danger of being
murdered. Even if after the abduction, the accused person placed the
abducted person in danger of being murdered, that would also not establish
the charge of abduction punishable under Section 364 of the IPC. The
intention at the time of abduction is relevant. Further, in a case under Section
364 of the IPC, the motive is of great importance and if there is absence of
any motive, it would be difficult to maintain the conviction under Section
364 of the IPC.
34. In the backdrop of the aforesaid factual aspect and settled legal position this
Court are now adverting to the merit of the case.
23 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
35. In this case the allegation is that the deceased was abducted by these
appellants and another person. Thus, to come within the definition of
“abduction” and to establish the case of the prosecution, the prosecution has
to prove that there was application of force, which compelled the deceased
to move from one place to another, or by any deceitful means and by some
inducement he was compelled to move from one place to another or under
some compulsion he was forced to move from one place to another.
36. We do not find any material from the oral evidence led by the prosecution
that there was any deceitful mean or inducement by these appellants, which
forced or compelled the deceased to move from one place to another.
Further, we do not find from evidence of witnesses that any force was
applied by these appellants, which forced the deceased to move from one
place to another.
37. The material in this case is that the P.W.4 informant and wife of the
deceased had stated that Lebeya Siddu (not examined) of village Tetlighat
had informed her that Sukhram Munda of village Sonapi (co-accused)
caught hold of her husband on the way and he tied him and brought him at
his village. He further informed her that Sukhram Munda has also brought
Ghasiram Sidu (deceased) from near his house at village Sonapi.
38. Thus, even from the testimony of the informant, complicity of the present
appellants has not been established, since this witness has categorically
stated that Lebeya Siddu (not examined) of village Tetlighat had informed
her that Sukhram Munda of village Sonapi (co-accused) caught hold of her
husband on the way and he tied him and brought him at his village.
24 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
39. The only material evidence against these appellants have been narrated by
P.W.5, Gaju Honhaga in his testimony wherein he had stated that on
12.02.1996 at 2 p.m. on the way to his village home, he met Lakshman
Deogam (deceased). He further stated that he met deceased, Lakshman
Deogam on the way to his house in village Chhota Nagara and Lakshman
Deogam (deceased) was going to village Maraponga. On meeting with him
Lakshman Deogam proceeded ahead in his company. He further stated that
when he along with Lakshman Deogam (deceased) arrived on road in village
Sonapi, Sukhram Munda and Horo Surin (accused persons) and 3 unknown
persons arrived there. Sukhram Munda asked him to proceed ahead with he-
Buffalo and Sukhram Munda, Horo Surin and 3 unknown caught hold of
Lakshman Deogam (deceased) and he on seeing Lakshman Deogam in the
custody of aforesaid 5 persons he proceeded taking his he-Buffalo with him.
He has identified Sukhram Munda and Horo Surin in dock. He has also
identified Jonka Surin, Pandu Balmuchu and Soma Surin on seeing them in
dock from face and has stated that the aforesaid 3 persons had come near
him along with Sukhram and Horo Surin.
40. He stated in cross-examination in para 3 that on the way to his house he met
none except Lakshman Deogam (deceased). On cross-examination he further
stated that he has been seeing the three accused persons whom he had
identified in the dock by seeing their face from his childhood. Since those
persons used to visit his village but he was not knowing the names of those 3
persons. He further stated on cross-examination that in his presence the
accused persons had caught hold of Lakshaman Deogam. He further stated
that all the 5 accused persons had appeared on the scene but only Sukhram
Munda has caught hold of Lakshman Deogam.
25 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
41. As per the testimony P.W.5 it is evident that he is the only prosecution
witness who had claimed himself that lastly, he had seen the deceased with
the company of the present appellants and at that time Sukhram Munda was
also present there. This witness had further stated that the accused persons
had caught hold of Lakshaman Deogam but at the same time in the cross
examination he had stated that all the accused persons had appeared on the
scene but only Sukhram Munda has caught hold of Lakshman Deogam
(deceased). The aforesaid statement amounts to major contradiction. Even
for the time being if it is presumed that present appellants have been seen
along with the deceased by this witness, then question arises herein that why
this witness had not stated this fact to informant i.e. wife of deceased or even
to the village Munda. It is evident from record that only after discovery of
the dead body of the deceased, the theory of last seen has come from the
mouth of this witness.
42. Thus, on the basis of the aforesaid fact it is difficult for this Court to accept
this fact that deceased was last seen with the present appellants. Further the
statement of P.W.5 has not been substantiated or fully corroborated by the
other prosecution witnesses.
43. It needs to refer herein that it has been stated by P.W.5 that he had seen the
present appellants with the deceased on 12.02.1996 but the dead body of the
deceased was recovered on 20.2.1996 on the basis of the alleged
confessional statement of the Sukhram Munda, therefore even in the such
scenario the proximity of time is the vital factor in order to prove the charges
against these appellants beyond reasonable doubt.
26 Cr. Appeal (DB) No. 331 of 1999 (R)
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44. It requires to refer herein that the law on the last-seen-together evidence is
well-settled. In a catena of judgments, the Hon’ble Supreme Court has held
that once it is proved that the deceased was seen lastly in the company of the
accused and immediately thereafter the dead body is recovered, the law
presumes that it was the accused who has committed the crime, but this
piece of evidence requires corroboration. There are of course exceptions to
this theory and there may be circumstances under which on the basis of the
last-seen-together evidence conviction of an accused cannot be recorded;
one of such circumstances is the time-gap between the last-seen-together and
recovery of the dead body. In the case of Navaneethakrishnan v. State
reported in (2018) 16 SCC 161, the Hon’ble Supreme Court has observed
which reads as under:
“22. …… It is a settled legal position that the law presumes that it is
the person, who was last seen with the deceased, would have killed the
deceased and the burden to rebut the same lies on the accused to
prove that they had departed. Undoubtedly, the last seen theory is an
important event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with some
certainty. However, this evidence alone cannot discharge the burden
of establishing the guilt of the accused beyond reasonable doubt and
requires corroboration.”
45. Further it needs to refer herein that P.W.5 identified the accused persons
first time in the dock and had stated that he has been seeing the accused
persons whom he had identified by seeing their face from his childhood,
since those persons used to visit his village.
46. It requires to refer herein that the Hon’ble Supreme Court in Rabindra
Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 has
observed that dock identification or photo identification though is admissible
evidence, cannot be given credence without further corroborative evidence.
27 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
Though some of the witnesses identified some of the accused in the dock,
without corroborative evidence dock identification alone cannot be treated as
substantial evidence, though it is permissible.
47. Similarly in the case of Girdhari v. State (NCT of Delhi), (2011) 15 SCC
373, the Hon’ble Apex Court has observed that this identification was made
for the first time in court during the recording of the evidence therefore this
statement, has very little evidentiary value, for ready reference the relevant
paragraph is being quoted as under:
“14. We therefore, find that out of the five witnesses of last seen only
PW 4 has to some extent identified the appellant as being one of the
culprits. This identification was made for the first time in court during
the recording of the evidence. This statement, therefore, has very little
evidentiary value. We are, therefore, of the opinion that this evidence
does not by itself inspire confidence.–”
48. Though, the Hon’ble Supreme Court has held that dock identification is
admissible in evidence but without any corroborative evidence, dock
identification alone cannot be treated as substantial evidence. As already
discussed, apart from the identification of the appellant in the dock for the
first time by the P.W.5, there is no other corroborative or cogent evidence
against the appellants. As such the factum of identification of the appellant
in the dock by the informant that too after lapse of considerable period of
time cannot be the sole basis for their conviction.
49. Further it needs to refer herein that on perusal of the entire record nowhere it
has come that what was the motive behind the alleged occurrence. However,
this Court is conscious with the fact that motive may not be of much
significance in a case based on direct evidence but herein the instant case
particularly the 2nd part of alleged occurrence i.e. murder of the deceased is
28 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
based upon the circumstantial evidence as there is no direct evidence is
available on the record save and except the confessional statement of the co-
accused namely Sukhram Munda.
50. In the case of Surinder Pal Jain v. Delhi Administration reported in 1993
Supp (3) SCC 681, the Hon’ble supreme court has held as under:
“11. …… In a case based on circumstantial evidence, motive assumes
pertinent significance as existence of the motive is an enlightening
factor in a process of presumptive reasoning in such a case. The
absence of motive, however, puts the court on its guard to scrutinise
the circumstances more carefully to ensure that suspicion and
conjecture do not take place of legal proof.”
51. Moreover, motive alone cannot be the ground for conviction of an accused
for a serious offence like murder. In “Keshav v. State of
Maharashtra” (2007) 13 SCC 284, the Hon’ble Supreme Court has observed
as under:
“8. “A judgment of conviction cannot be recorded only on the basis of
motive. The circumstance of last seen together becomes relevant only
when the death is proved to have taken place within a short time of the
accused and the deceased being last seen. (See State of Goa v. Sanjay
Thakran). —“
52. From perusal of the record, it is evident that no any prosecution witness had
whispered about the motive behind the alleged crime and since the instant
case is based upon the circumstantial evidence, as such the charges against
the present appellants cannot be said to be proved beyond reasonable doubt.
53. Further from perusal of the testimony of the prosecution witnesses it is
evident that none of the witnesses have whispered about any force being
applied, which compelled the deceased to move from one place to another.
Further, there is no evidence, which would advocate that by any deceiving
29 Cr. Appeal (DB) No. 331 of 1999 (R)
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means the deceased was compelled to move from one place to another. In
absence of any evidence, which could suggest that force was applied or any
deceiving means was adopted, basic ingredients of the definition of
“abduction” as stipulated in Section 362 of the IPC is not involved and when
the fundamental ingredients are not attracted, an accused cannot be
convicted of offence under Section 364 of the Penal Code, 1860.
54. So far as the 2nd part i.e. murder of deceased is concerned save and except
the confessional statement of the co-accused Sukhram Munda nothing has
come on record against the present appellants.
55. It requires to refer herein that the position of the accused who has given
confessional statement implicating a co-accused is that he has placed himself
on the same plank and thus he sinks or sails along with the co-accused on the
basis of his confession. For these reasons, insofar as use of confession of an
accused against a co-accused is concerned, rule of prudence cautions the
judicial discretion that it cannot be relied upon unless corroborated generally
by other evidence on record.
56. Generally, a confessional statement made by one accused cannot be used as
substantive evidence against a co-accused. While a court may consider such
a confession, it cannot form the sole basis for conviction. The confession can
be used to lend assurance to other evidence, but it is not considered direct
evidence against the co-accused.
57. The Hon’ble Apex Court in the case of Pancho v. State of Haryana (2011)
10 SCC 165 has observed that confession of a co-accused is not a
substantive piece of evidence and that it can only be used to confirm the
conclusion drawn from other evidence in a criminal trial. The Hon’ble court
30 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
further stated that the trial court cannot begin on the basis of the confession
of the co-accused, rather, the courts must analyse all the evidence which are
being adduced, and on being satisfied with the guilt of accused.
58. At this juncture it would be apt to refer herein Section 30 of the Indian
Evidence Act which is being quoted as under:
30. Consideration of proved confession affecting person making it
and others jointly under trial for same offence.–When more
persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some
other of such persons is proved, the Court may take into consideration
such confession as against such other person as well as against the
person who makes such confession.
[Explanation.–“Offence” as used in this section, includes the
abetment of, or attempt to commit, the offence.39]
59. Thus, Section 30 of the Indian Evidence Act envisages that when more than
one person is being tried jointly for the same offence and a confession made
by one of such persons if found to affect the maker and some other of such
persons and stands sufficiently proved, the court can take into consideration
such confession as against such other person as well as against the person
who made such confession.
60. The Hon’ble Apex Court in the case of Govt. of NCT of Delhi v. Jaspal
Singh, (2003) 10 SCC 586 has categorically observed that no doubt, in
law the confession of a co-accused cannot be treated as substantive evidence
to convict, other than the maker of it, on the evidentiary value of it alone.
But it has often been reiterated that if on the basis of the consideration of
other evidence on record the court is inclined to accept the other evidence,
but not prepared to act on such evidence alone, the confession of a co-
31 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
accused can be pressed into service to fortify its belief to act on it also, for
ready reference the relevant Paragraph is being quoted as under:
9. The submissions on behalf of the parties on either side on either
the relevance, efficacy and reliability of the confessional statements
of the 1st accused or principles underlying Sections 10 and 30 of the
Indian Evidence Act, 1872, next fall for consideration. No doubt, in
law the confession of a co-accused cannot be treated as substantive
evidence to convict, other than the maker of it, on the evidentiary
value of it alone. But it has often been reiterated that if on the basis
of the consideration of other evidence on record the court is inclined
to accept the other evidence, but not prepared to act on such
evidence alone, the confession of a co-accused can be pressed into
service to fortify its belief to act on it also. Once there are sufficient
materials to reasonably believe that there was concert and
connection between persons charged with a common design, it is
immaterial as to whether they were strangers to each other or
ignorant of the actual role of each of them or that they did not
perform any one or more of such acts by joint efforts in unison.
Section 30 of the Indian Evidence Act envisages that when more than
one person are being tried jointly for the same offence and a
confession made by one of such persons is found to affect the maker
and some other of such persons and stands sufficiently proved, the
court can take into consideration such confession as against such
other person as well as against the person who made such
confession.–
61. The Hon’ble Apex Court in the case of Surinder Kumar Khanna v.
Directorate of Revenue Intelligence, (2018) 8 SCC 271 has held which
reads 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 and32 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBin 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)‘…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)
‘…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.’
33 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
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)
“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
34 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
(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 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 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
35 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB
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.”
62. Thus, from the aforesaid settled position of law it is evident that the accused
cannot be convicted on the basis of only confessional statement of co-
accused as it is not substantive piece of evidence. The Hon’ble Apex Court
has specifically observed that 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 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.
63. In the backdrop of the aforesaid settled legal position, we are re-adverting to
the fact of the instant case. From perusal of the impugned order as well as
the entire record it is apparent that save and except the confessional
statement of the co-accused Sukhram Munda, nothing substantial evidence
has been brought on record by the prosecution against the present appellants.
36 Cr. Appeal (DB) No. 331 of 1999 (R)
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Further the said confessional statement has not been corroborated or
substantiated by the other cogent evidence. It needs to refer herein that in
preceding paragraph the credibility of testimony of the P.W.5 has already
been doubted by this Court and since it is considered view of this Court that
offence under Section 364 has not made out against these appellants,
therefore involvement of the present appellants in the alleged commission of
murder of the deceased cannot be said to be established beyond reasonable
doubt.
64. It requires to refer herein that the conviction of a person can only be made if
the charge has been proved beyond shadow of all reasonable doubts and if
there is any doubt in the prosecution version then the benefit must be given
to the accused persons. Reference is made to the judgment Rang Bahadur
Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at
paragraph-22, it has been held as under:-
“22. The amount of doubt which the Court would entertain
regarding the complicity of the appellants in this case is much
more than the level of reasonable doubt. We are aware that
acquitting the accused in a case of this nature is not a matter of
satisfaction for all concerned. At the same time we remind
ourselves of the time-tested rule that acquittal of a guilty person
should be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused. A
criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of
certainty that the appellants were the real culprits. We really
entertain doubt about the involvement of the appellants in the
crime.”
37 Cr. Appeal (DB) No. 331 of 1999 (R)
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65. Likewise, the Hon’ble Apex Court in the case of Krishnegowda & Ors. Vrs.
State of Karnataka, reported in (2017) 13 SCC 98, has held at paragraph-26
as under:-
“26. Having gone through the evidence of the prosecution witnesses
and the findings recorded by the High Court we feel that the High
Court has failed to understand the fact that the guilt of the accused
has to be proved beyond reasonable doubt and this is a classic case
where at each and every stage of the trial, there were lapses on the
part of the investigating agency and the evidence of the witnesses is
not trustworthy which can never be a basis for conviction. The
basic principle of criminal jurisprudence is that the accused is
presumed to be innocent until his guilt is proved beyond reasonable
doubt.”
66. Further, the principle of ‘benefit of doubt’ belongs exclusively to criminal
jurisprudence. The pristine doctrine of ‘benefit of doubt’ can be invoked
when there is reasonable doubt regarding the guilt of the accused, reference
in this regard may be made to the judgment rendered by the Hon’ble Apex
Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in
(1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable. The
benefit of doubt was given to Bhagirath “as a matter of abundant
caution”. Unfortunately, the High Court did not point out the area
where there is such a doubt. Any restraint by way of abundant caution
need not be entangled with the concept of the benefit of doubt.
Abundant caution is always desirable in all spheres of human activity.
But the principle of benefit of doubt belongs exclusively to criminal
jurisprudence. The pristine doctrine of benefit of doubt can be invoked
when there is reasonable doubt regarding the guilt of the accused. It is
the reasonable doubt which a conscientious judicial mind entertains
on a conspectus of the entire evidence that the accused might not have
committed the offence, which affords the benefit to the accused at the
end of the criminal trial. Benefit of doubt is not a legal dosage to be
administered at every segment of the evidence, but an advantage to be38 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DBafforded to the accused at the final end after consideration of the
entire evidence, if the Judge conscientiously and reasonably entertains
doubt regarding the guilt of the accused.”
67. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v. State of
Karnataka (Supra) at paragraph 32 and 33 has held as under:-
“32. — — The minor variations and contradictions in the evidence
of the eyewitnesses will not tilt the benefit of doubt in favour of the
accused but when the contradictions in the evidence of the
prosecution witnesses proves to be fatal to the prosecution case
then those contradictions go to the root of the matter and in such
cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the trustworthiness of
evidence on record. As said by Bentham, “witnesses are the eyes
and ears of justice.— –
68. It needs to refer herein that The Hon’ble Apex Court, in the case of
Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has
laid down the principle that the golden thread which runs through the web of
administration of justice in criminal case is that if two views are possible on
the evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused
should be adopted, for reference, paragraph 6 thereof requires to be referred
herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. –”
69. It needs to refer herein before laying down the aforesaid view, the Hon’ble
Apex Court in the case of Sharad Birdhichand Sarda v. State of
Maharashtra reported in (1984) 4 SCC 116 has already laid down the same
view at paragraph 163 which is required to be referred which read hereunder
as:
39 Cr. Appeal (DB) No. 331 of 1999 (R)
2025:JHHC:17647-DB“163. We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled that
where on the evidence two possibilities are available or open, one
which goes in favour of the prosecution and the other which benefits
an accused, the accused is undoubtedly entitled to the benefit of
doubt.—”
70. Further it requires to refer herein that it is well settled that when a case rests
entirely on circumstantial evidence, such evidence must satisfy three tests.
Firstly, the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established. Secondly, these
circumstances should be of a definite tendency unerringly pointing towards
the guilt of the accused. Thirdly, the circumstances, taken cumulatively,
should form a chain so complete that there is no escape from the conclusion
that within all human probability the crime was committed by the accused
and none else. That is to say, the circumstances should be incapable of
explanation on any reasonable hypothesis save that of the accused’s guilt,
reference in this regard may be taken from the judgment as rendered by the
Hon’ble Apex Court in the case of Chandmal v. State of Rajasthan, (1976)
1 SCC 621.
71. The circumstances of this case only create suspicion against the present
appellants and suspicion, by itself, however strong it may be, is not
sufficient to take the place of proof and warrant a finding of guilt of the
accused, thus, or paucity of any clear, cogent and unshakeable evidence
against aforesaid appellants their conviction and sentence are absolutely
unwarranted.
72. On the basis of the discussions made hereinabove, the conviction of the
above-named appellants under Section 364/34 and 302/34 of the IPC does
not appear to be sustainable, and is therefore set aside. As a result, appellants
40 Cr. Appeal (DB) No. 331 of 1999 (R)
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named above is acquitted of all offences and since they are on bail, therefore
they are discharge from their criminal liability.
73. Accordingly, with the aforesaid observation the instant criminal appeal
stands allowed.
74. Pending interlocutory application(s), if any, also stands disposed of.
75. Let this order/judgment be communicated forthwith to the court concerned
along with the Lower Court Records.
76. The assistance given by Ms. Amrita Sinha, learned amicus curiae in this
case is appreciable. The learned Member Secretary, JHALSA is directed to
make the payment of the prescribed remuneration to the learned amicus
curiae. Let a copy of this Judgment be sent to the learned Member Secretary,
JHALSA, for the needful.
(Sujit Narayan Prasad, J.)
I agree,
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 01 / 07 /2025
Saurabh/Samarth/ A.F.R.
41 Cr. Appeal (DB) No. 331 of 1999 (R)