Tulip Kanth

New Delhi, May 28, 2022: Acquitting the appellant-accused from the charges leveled against him under Section 302 r/w Section 34 IPC, the Supreme Court has opined that the Chhattisgarh High Court committed gross error in convicting the accused by relying upon a very weak piece of evidence of extra judicial confession allegedly made by the co-accused in a case where the prosecution had miserably failed to bring home the charges made against the accused beyond reasonable doubt.

Referring to the judgments of the Top Court in M.P. Through CBI & Ors. Vs. Paltan Mallah & Ors.,Jagroop Singh Vs. State of Punjab, S.K. Yusuf Vs. State of West Bengal and Pancho Vs. State of Haryana, the Division Bench of Justice D.Y.Chandrachud and Justice Bela M. Trivedi observed that an extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances and is further corroborated by other prosecution evidence.

The facts which gave rise to the filing of the present appeal were such that Kumari Brindabai and Kanhaiya Siddar, were having an affair but the same was not approved of by their family members. In 1994, when the couple went missing their dead bodies were found hanging on a cashew tree. The Sessions Court framed the charge against the four accused for the offence under section 302 read with section 34 of IPC as also for the offence under section 3(2)(v) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities), Act, 1989 and sentenced them to imprisonment. When the matter reached the High Court, the conviction and sentence imposed on the appellant-accused, Chandrapal, was confirmed and the conviction imposed upon other accused persons was set aside. Hence, this appeal was filed by the appellant- accused.

Speaking for the Bench, Justice Trivedi noted that the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. It was also reiterated that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish “homicidal death” as a primary fact. The Bench also held that the evidence of extra judicial confession of the co-accused, Videshi, was not duly proved or found trustworthy for holding the other co-accused guilty of committing murder of the deceased Brinda and Kanhaiya and so, the High Court could not have used the said evidence against the present appellant for the purpose of holding him guilty for the alleged offence.

Considering that there was a huge time gap between the two incidents i.e., the day when accused was seen calling Kanhaiya at his house and the day Kanhaiya’s dead body was found, the Bench said, “If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellant accused could not have been convicted merely on the basis of the theory of “Last seen together”. “Thus, the Apex Court allowed the appeal and directed the appellant-accused to be set free.

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