On 01.10.2003, Umesh Chowdhary, a resident of village Chitarpur falling within the territorial limits of Police Station Dhaurpur District was allegedly murdered by accused Pradeep Kumar (Appellant No 2 in CRA No.940 2004) before the High Court Chhattisgarh, Bilaspur and 2nsa Bhai alias Nandlal (Appellant No.1. The Trial Court found the testimonies of both PW-1 and PW-7 reliable (despite PW-1 not supporting the prosecution) and the prosecution to have established the factum of accused Pradeep Kumar having confessed his guilt before the Investigation Officer (PW-19).
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However in an appeal preferred by both the accused, the High Court upheld the conviction of accused Pradeep Kumar in relation to all the offences and the sentences in terms thereunder, but acquitted accused Bhainsa alias Nandlal on all counts. Further, the High Court held that the defence was not able to show that the extra-judicial confession made by Pradeep Kumar (Appellant No.2) before the said witnesses was “involuntary” or “made on account of any coercion”, “inducement”, “promise” or “favour”.
The prosecution case, at best, rests upon three circumstances (a) the alleged confessional statement of accused Pradeep Kumar made before PW-1 and PW-7; (b) prior animosity/“tension” between Pradeep Kumar and the deceased; and (c) the recovery of the keys of the shop of the 7 deceased and his currency notes amounting to Rs.300/- on the asking of the accused.
Since both the Courts below have placed paramount significance and reliance to the extra judicial confession made by the Appellant, it is important to take note of the principles enunciated by this Court in the case of Sahadevan v. Those being (a) the homicidal death of deceased Umesh Chowdhary S/o Gajadhar Chowdhary, (b) the identity of the deceased, (c) the recovery of the dead body of the deceased from the Dodki Nala of village Chitarpur, (d) the post-mortem of the dead body conducted by PW-14 affirming the deceased to have died as a result of asphyxia due to throttling and (e) the cause of the death being homicidal in nature. Gajadhar Chowdhary (PW-10) states that it was he who made inquiries about the death of the deceased and as disclosed to him by Sirodh (PW-6), owner of the shop, deceased was lastly seen by him closing the shop around 8:00 PM. He is also not the witness who had lastly seen the Appellant with the deceased or the Appellant having gone either towards the shop of the deceased or the place of occurrence of the incident, both being two separate places. When we come to the deposition of Vinay Kumar (PW-12) son of the deceased, unequivocally he states that “… later on the police personnel told me that accused persons have thrown my father after committing murder…” No this totally belies the testimony of his grandfather Gajadhar Chowdhary (PW-10).
We notice in respect of the next circumstance, which is the recovery of keys and the money, that there is no independent corroborated material except for the confessional statement of the accused, which also is not proven on record. Still further, deposition of PW-7 reveals the witness not to have deposed truthfully and the prosecution to have introduced another theory as according to him the accused had immediately, after the incident confessed the crime with him. This witness, in our considered view, cannot be said to be reliable and trustworthy and this we say so for the reason, that as according to his deposition, he received information of the death of deceased at 7:00-8:00 AM, the following morning and yet he did not visit the spot of the crime until the police reached, which was at 10:00 AM and only much later, got his statement recorded at about 4:00 PM. He admits that houses of Ramsevak, Gopal and Rashri are just at a distance of 30 to 70 meters from the spot of the crime.
Apart from sending the dead body for post-mortem, the Investigation Officer (PW-19) does not state what investigation he conducted on the crime spot.
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Perusal of the First Information Report (Ex.P-6) does reveal Gajadhar Chowdhary (PW-10) to have 17 disclosed the name of accused Pradeep Kumar as a suspect in the crime.
In the present case, we find neither the chain of circumstances to have been completely established nor the guilt of the accused alone, having committed the crime to be proven, much less beyond reasonable doubt.
1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
State of Andhra Pradesh, (1970) 3 SCC 474, Balak Ram
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v. Hence we set aside the findings of guilt and sentence arrived at vide judgment dated 28.08.2004 by the Ld.
Case Title: PRADEEP KUMAR Vs. THE STATE OF CHHATTISGARH (2023 INSC 242)
Case Number: Crl.A. No.-001304-001304 / 2018
