Supreme Court of India
PARAM HANS YADAV & SADANAND TRIPATHIversusSTATE OF BIHAR & ORS.
- Citation
- 1987 INSC 61
- Decided
- 25 February 1987
- Disposal
- Disposed off
- Bench
- RANGANATH MISRA
Holding
A co‑accused's confession is not substantive evidence against another accused and, in the absence of other substantive proof, the conspiracy charge against Tripathi could not be established.
Summary
Param Hans Yadav and Sadanand Tripathi were convicted for the murder of Collector Mahesh Narain Prasad, Yadav having thrown a bomb and later confessing that he acted on Tripathi's orders. Yadav's confession, both judicial and extra‑judicial, was obtained after he was assaulted and was therefore not voluntary. The Supreme Court held that a co‑accused's confession is not substantive evidence against another accused and can be used only to lend assurance to other independent evidence. The prosecution failed to produce any substantive evidence linking Tripathi to the conspiracy, relying solely on incomplete circumstantial evidence. Consequently, Yadav's conviction and death sentence were upheld, while Tripathi's conviction was set aside and he was acquitted.
Issues considered
- The admissibility and evidentiary value of a co‑accused's confession against another accused.
- Whether the confession obtained after assault was voluntary and thus admissible.
- Whether the prosecution established the conspiracy of Tripathi through circumstantial evidence.
- Whether any other substantive evidence existed to link Tripathi to the murder.
Legislation cited
- Code of Criminal Procedure, 1973s. 164
- Explosive Substances Act, 1908s. 3
- Indian Evidence Act, 1872s. 24, s. 30
- Indian Penal Code, 1860s. 120B, s. 302
Subjects
confessionco‑accusedcircumstantial evidenceconspiracydeath penaltyIndian Evidence ActIPC 302IPC 120Bvoluntary confessionextra‑judicial confessionacquittal
Judgment
PARAM HANS YADAV & SADANAND TRIPATHI
A
v.
STATE OF BIHAR & ORS.
FEBRUARY 25, 1987
[RANGANATH MISRA AND M.M. DUTT, JJ.] B
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
-r vol~ntary nor natural.
c
Indian Penal Code, 1860: s.302 read with s.120-B-Death sen-
tence-Direct evidence--Accused caught red-handed-Confessed to his
crime-Conviction and sentence upheld-Crime whether committed at
the behest of co-accused-Where prosecution relies upon circumstantial
evidence a clear link to be established and the chain completed to prove D
conspiracy.
The appellants were alleged to have conspired to kill the Col-
lector-cum-District Magistrate. The latter died in a bomb attack by the
first accused appellant. He was caught red-banded and when given a
beating by eye-wituesses be readily confessed to his guilt, but gave out E
-
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 conflrDled by the High Court.
F
Disposing of the appeals, this Court,
!" i'
HELD:l. There was direct evidence of first appellant's involve-
ment in the crime and be 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 G
stand. [408F·G]
:. ,,-t 2.1 The prosecution bas failed to establish by circumstantial evi-
dence 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] H
405
406 SUPREME COURT REPORTS [1987] 2 S.C.R.
A 2.2 Where the prosecution relies upon circumstantial evidence to
support the charge of conspiracy, a clear link has to be established and T
the chain has to be complete, otherwise it wonld indeed be hazardous to
accept a part of the link as the complete one. On the basis of such
incomplete circumstantial evidence, the allegation of conspiracy cannot
be accepted. [413C]
B
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
C Hari Chand Kurmi & Anr. v. State of Bihar, [1964) 6 SCR 623, refer-
~~ ~
3.2 The judicial confession of the main accused in the instant
case was exculpatory in natnre and, therefore, would not be admissible
D against the co-accused. It has, to be kept out of consideration. [410A·B)
3.3 The extra-jndicial confession of the main accused relates to
the point of time contemporaneous to the incident. There was evidence
that he was beaten np badly after being apprehended hy the moh soon
after the bomb burst. Several prosecution witnesses have spoken about
E his confession before them. There was clear material that he was man-
handled. [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 statement follow-
ing his apprehension. Even accepting the prosecution story that he
F 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 situation would neither be
voluntary nor natural. It would not be proper to rely upon the same for
G 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
H establishingconspiracy. [412C-D)
P.H. YADAV v. STATE OF BIHAR [MISRA, J.] 407
5.1 Several witnesses were examined to show that the main A
i accused was very close to the co-accused. But the source of their
knowledge appeared to be statement of the main accused and indepen·
dently they had no personal knowledge 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 B
accused and the 2nd appellant, was himself a convict in three cases of
murder. His wife, who was a material witness has not been exahlined 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 C
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 establish conspiracy. [412F]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal D
Nos. 423-425 of 1986.
From the Judgment and Order dated 4.4.1986 of the Patna High
Court in Death Reference No. 3 of 1984 and in Crl. Appeal No. 676,
-
647 and 627 of 1984.
E
R.L. Kohli and S.P. Singh for the Appellants.
--- J aya Narayan and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by
F
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 Pana! Code. G
Appellant Yadav has independently been convicted under sec-
tion 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 ac-
cused persons who had been put on trial along with the appellants were H
408 SUPREME COURT REPORTS [1987] 2 S.C.R.
acquitted by the trial court and their acquittal has become final.
A
Mahesh Narain Prasad Sharma, the victim, was a Member of the
Indian Administrative Service and was posted as Collector 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
B 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, an~ his brother one after the o~her. When the deceased came ~...;..
on the landmg, Yadav·who was followmg them suddenly took out a -
bomb from the bag which he held and threw it.at the Collector. The
c bomb exploded with a lou'd noise and as a result of the burst Mahesh
Prasad ·f!'ll rolling on tl)e 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 apprehended near a fruit stall.
He readily confessed to his guilt but gave out that he had committed
D 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 Tripathi 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
E 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 prosecution.
~
-i
'
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
F also confessed to his guilt. Special leave, so far as he is concerned, is + .. i
limited to the question of sentence. We have, therefore, heard learned
counsel for y adav 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
G 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. There-
H after, he started giving religious discourses and styled himself as.Sant·
P.H. YADAV v. STATE OF BIHAR [MISRA, J.] 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
A
could see God. Soon he picked up considerable 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. _I-le encroa-
ched upon a plot of Government land and bu'.lt his Ashram thereon.
As he had easy access to resources, the Ashram got fitted with all B
modem amenities. Soon his followers, however, started realizing that
they had been duped and tricked and began to withdraw from him.
+ Saaa11a1ul had employed a band of muscle men to carry out his nefari-
ous designs. His followers often became apprehensive of their own
security and approached the local authorities for protection. The
Ashram, as the prosecution has tried to show, turned into a pen of
criminals. Ultimately the authorities raided the Ashram, recovered
c
bombs ancl ,;everal other objectionable articles therefrom. 'Sadaesnd
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 detaining Sadanand· in jail. Eviction proceed-
ings from the encroached land .had already been undertaken. On D
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 10th July, 1982 Sadanand had con-
tinuously been detained in jail till the Collector's murder on 11.4.1983. E
In view of this fact, the prosecution has relied upon the allegation of
conspiracy, confession and other features to establi.sh the complicity of
Sadanand in the murder of the Collector.
"~ There are two confessions-a judicial confession before a Magis-
trate, being Exhibit 44 and the other is extra judicial confession. Deal- F
inll with Exhibit 44, the High Court' has observed:-
"So far as the confession. before the Magistrate, Exhibit
44, is concerned, the trial court has itself, hesitatingly,
accepted the same. From the confession l find that it was
in- the nature of the cross-examination which is not G
permissible under the law and has been depricated by the
Supreme Cour( 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
consideratioh. '' H
.,
410 SUPREME COURT REPORTS [1987] 2 S.C.R.
A 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.
B
Coming to the extra judicial confession it has to be remembered
that the same related to the point of tinie contemporaneous to the t
incident. There is evidence that Yadav was beaten up badly after being
apprehended by the mob soon after the bomb burst. Several prosecu-
tion witnesses have spoken about Yadav confession before them. _.,, ... ~
There is clear material that Yadav was man-handled. P.W.3 has
C stated:- ·
"He was held by me and other persons chasing him. We
liegan to assault him and make enquiries from him. Then
the said person himself said, 'why you people are assaulting
D 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.lOstated:
E "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:-
F
"On being caught hold of, he was assaulted with slaps, fists .• ,,._
and asked ac 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."
G 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 inci-
dent, 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
H Code on 13.4.1983, Yadav denied to have made any statement follow-
j
P.H. YADAV v. STATE OF B!HAR [MISRA, J.] 411
ing his apprehension. Even accepting the prosecution story that Yadav
A
made this statement, he appears to have made the statement following
assault on him. Even if it is accepted that Yadav has made the state-
ments as alleged, can the same be utilised against Sadanand is the next
aspect for consideration. 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 B
be proper to rely upon the same for any purpose.
t'
It is well-settled that the confession of a co-accused is not sub-
- ~ stantive evidence against other co-accused persons in the same trial.
r· As this Court pointed out in Kashmira Singh v. State of Madhya
Pradesh, [ 1952] SCR 526 the confession of a co-accused is not substan-
c
tive evidence against the other accused persons at the trial but could
i only be used for lending reassurance if there by any other substantive
evidence to be utilised or acted upon.
In Bari Charan Kurmi & Anr. v. State of Bihar, [1964] 6 SCR 623
this Court observed:- D
"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
- -t section 3 of the Act. The result, therefore, is that in dealing
with a case against an accused person, the Court cannot E
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 con-
J + clusion of guilt which the judicial mind is about to reach on
the said other evidence."
F
" ........... that the confession of a co-accused
person cannot be treated as 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 G
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 H
412 SUPREME COURT REPORTS [1987] 2 S.C.R.
A Sadanand in the Ashram. Learned counsel for Sadanand has argued
that the prosecution evidence on this score should be rejected as when ,
on 10th Jilly, 1982 Sadanand was taken into custody following the raid 1
on the Ashram, Yadav was not found there. Again on the 15th when
the Ashram was demolished and most of the inmates were taken into
custody, Yadav was not arrested.
B
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 indepen-
dently they had no personal knowledge of the fact.
Prosecution sought to jJlace reliance upon motive. Undoubtedly,
c Sadanand must have had grudge against the Collector 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.
D
Prosecution also relied upon a feature, which if accepted, could
provide some link between the two for the commission 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
E Sadanand. The prosecution has further led evidence to show that after l>•
the arrival of Sadanand at the jail, enforcement of rules be.came 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
F meeting at regular intervals by itself would not establish conspiracy. -f
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
G 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 ap-
+'
pears 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.
H
P.H. YADAV v. STATE OF BIHAR /MISRA, J.] 413
Obviously, as the jail records did not show that P.W.4 had an A
interview with his wife that day, the story of bribing 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. B
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
... ·y-- every case but if the prosecution re.lies 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 C
.l · complete one and on the basis of such incomplete evidence, the allega-
\ tion 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 circum- D
stances, 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 liberty 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 E
investigation was expected and the State should have taken great care
to ensure that every loophole in the investigation was plugged at the
right time in accordance .with law. It is unfortunate that lapses have
occurred.
t P.S.S. Appeals disposed of.
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