Criminal Appeal Nos
423 425 of 1986
From the Judgment and Order dated 441986 of the Patna High Court in Death Reference No 3 of 1984 and in Crl
Appeal No 676 647 and 627 of 1984
RL Kohli and SP Singh for the Appellants
Jaya Narayan and D Goburdhan for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
These appeals by special leave are directed against a common judgment of the Patna High Court rendered in Death Reference 3 of 1984 and Criminal Appeal No 627647 and 676 of 1984
Each of the appellants in the two appeals has been sentenced to death under section 302 read with section 120 B of the Indian Penal Code
Appellant Yadav has independently been convicted under section 302 of the Code and has been sentenced to death
He has also been convicted under section 3 of the Explosive Substance Act and has been sentenced to ten years  rigorous imprisonment
Two other accused persons who had been put on trial along with the appellants were 408 acquitted by the trial court and their acquittal has become final
Mahesh Narain Prasad Sharma the victim was a Member of the Indian Administrative Service and was posted as Collec tor and District Magistrate of Gopalganj District in the State of Bihar on the 11th of April 1983 Mahesh Narain went to his court to work in the morning and after he finished his work both he and his brother PW62 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 PW 19 and his brother one after the other
When the deceased came on the landing Yadav who was following them suddenly took out a bomb from the bag which he held and threw it at the Collector
The bomb exploded with a loud noise and as a result of the burst Mahesh Prasad fell rolling on the ground and part of his body was blown off
Yadav jumped off from the stairs through the side railing but was chased by PW62 and others and was appre hended near a fruit stall
He readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest of appellant Tripathi
According to Yadav Tripathi had prevailed upon him to kill the Collector by way of retaliation for demolishing the Ashram after getting Tripa thi detained in jail
Yadav further maintained that Sadiq one of the accused persons had supplied the bomb to him
PW14 the Inspector of Police who was attracted to the scene by the sound of the bomb burst recorded the first information given by PW62 arrested Yadav and sent him to Gopalganj Police Station
At the trial 75 witnesses were examined for the prose cution
Out of them the evidence of 14 had been tendered
So far as Yadav is concerned there was direct evidence of his involvement and he had also confessed to his guilt
Special leave so far as he is concerned is limited to the question of sentence
We have therefore heard learned counsel for Yadav on the question of sentence and see no justification to take a view different from what has been said about him by the High Court
His appeal therefore is dismissed and his conviction as also sentence as awarded by the trial court and confirmed by the High Court shall stand
We shall now deal with the appeal filed by Sadanand Tripathi
Sadanand came from a poor family and started his career as a Bus Conductor
While in employment he obtained the Degree in Law and started practice as a lawyer in Uttar Pradesh for some time
Thereafter he started giving reli gious discourses and styled himself as Sant 409 Gyaneshwar Maharaj
He tried to make his followers believe that he had seen God and if they followed him and his preachings they too could see God
Soon he picked up con siderable following
He used to tell his followers that they should surrender their body wealth and mind so that the prospect of seeing God would be bright
He encroached upon a plot of Government land and built his Ashram thereon
As he had easy access to resources the Ashram got fitted with all modern amenities
Soon his followers however started realizing that they had been duped and tricked and began to withdraw from him
Sadanand had employed a band of muscle men to carry out his nefarious designs
His followers often became apprehensive of their own security and approached the local authorities for protection
The Ashram as the prose cution has tried to show turned into a den of criminals
Ultimately the authorities raided the Ashram recovered bombs and several other objectionable articles therefrom
Sadanand and many others were taken into custody on 1071982
The deceased Mahesh Prasad who was Collector of Gopalganj made an order under the Crime Control Act detain ing Sadanand in jail
Eviction proceedings from the en croached land had already been undertaken
On 1471982 the Commissioner dismissed the appeal filed on behalf of the Ashram and on 15th July 1982 the entire structure of the Ashram was demolished under the direct supervision of the Collector
It is not disputed that from th July 1982 Sadanand had continuously been detained in jail till the Collector s murder on 1141983
In view of this fact the prosecution has relied upon the allegation of conspiracy confession and other features to establish the complicity of Sadanand in the murder of the Collector
There are two confessions a judicial confession before a Magistrate being Exhibit 44 and the other is extra judi cial confession
Dealing with Exhibit 44 the High Court has observed So far as the confession before the Magis trate Exhibit 44 is concerned the trial court has itself hesitatingly accepted the same
From the confession I find that it was in the nature of the cross examination which is not permissible under the law and has been depricated by the Supreme Court and different courts of the country
Mr Pandey learned counsel appearing on behalf of the State has fairly submitted that Exhibit 44 cannot be used in this case
Therefore it has to be excluded from consideration
 410 Before us Mr Jai Narain for the State initially placed reliance on the confession but later conceded that apart from what the High Court has observed with regard to the confession it appeared to be exculpatory in nature and therefore would not be admissible against the co accused
In these circumstances the judicial confession has to be kept out of considerations
Coming to the extra judicial confession it has to be remembered that the same related to the point of time con temporaneous to the incident
There is evidence that Yadav was beaten up badly after being apprehended by the mob soon after the bomb burst
Several prosecution witnesses have spoken about Yadav confession before them
There is clear material that Yadav was man handled
PW3 has stated He was held by me and other persons chasing him
We began to assault him and make en quiries from him
Then the said person himself said why you people are assaulting me
I have killed the Collector by bomb at the orders of Guru Sant Gyaneshwar and one bomb has been left in the Jhola
PW 10 stated The people who caught of him began to assault him and began to ask him why has he killed the Collector
On being asked he replied that he had killed the Collector under the orders of Baba     PW 11 stated On being caught hold of he was assaulted with slaps fists and asked as to why he did so
On being asked the said person replied that he had hit the Collector by bomb at the orders of Guru
 Several other witnesses have also spoken in the same trend about Yadav being assaulted by the angry mob soon after his apprehension
It is a fact that a set of witnesses who according to the prosecution were present when Yadav was taken into custody following the incident have not spoken about any confession
They are PWs 5 12 15 40 and 57
In his own statement recorded under section 164 of the Code on 1341983 Yadav denied to have made any statement fol low 411 ing his apprehension
Even accepting the prosecution story that Yadav made this statement he appears to have made the statement following assault on him
Even if it is accepted that Yadav has made the statements as alleged can the same be utilised against Sadanand is the next aspect for consid eration
Obviously when Yadav was beaten up he must have been anxious to ensure that the assault stopped
His plea in such a situation would neither be voluntary nor natural
It would not be proper to rely upon the same for any purpose
It is well settled that the confession of a co accused is not substantive evidence against other co accused persons in the same trial
As this Court pointed out in Kashmira Singh vs State of Madhya Pradesh  the confes sion of a co accused is not substantive evidence against the other accused persons at the trial but could only be used for lending reassurance if there by any other substantive evidence to be utilised or acted upon
In Hari Charan Kurmi  Anr
vs State of Bihar  this Court observed Thus the confession may be regarded as evidence in that generic sense because of the provisions of section 30 the fact remains that it is not evidence as defined by section 3 of the Act
The result therefore is that in dealing with a case against an accused person the Court cannot start with the con fession of a co accused person it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence    that the confession of a co accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence 
 It is now to be found out if apart from the confession there is any substantive evidence from which the prosecution can have support for its case
According to the prosecution Yadav was staying with 412 Sadanand in the Ashram
Learned counsel for Sadanand has argued that the prosecution evidence on this score should be rejected as when on 10th July 1982 Sadanand was taken into custody following the raid on the Ashram Yadav was not found there
Again on the 15th when the Ashram was demol ished and most of the inmates were taken into custody Yadav was not arrested
Several other witnesses were examined to show that Yadav was very close to Sadanand
But as has been rightly pointed out the source of their knowledge appeared to be statement of Yadav and independently they had no personal knowledge of the fact
Prosecution sought to place reliance upon motive
Un doubtedly Sadanand must have had grudge against the Collec tor for his detention as also for the demolition of the Ashram
As a matter of fact that must have been the common reaction of all the ashramites including Yadav and Sadiq
Thus this could not be a feature to supply the link for establishing conspiracy
Prosecution also relied upon a feature which if accept ed could provide some link between the two for the commis sion of the offence
According to the prosecution Yadav was regularly visiting Sadanand at the jail
The jail records do not support such visits
According to the prosecution case Yadav was bribing the jail officials for meeting Sadanand
The prosecution has further led evidence to show that after the arrival of Sadanand at the jail enforcement of rules became slack and there was a regular flow of food from outside
Jail officials were also entertained by Sadanand
This type of evidence even if accepted does not establish conspiracy because Yadav being a follower was likely in the usual course to meet Sadanand and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy
Prosecution relied on an event of 11th April 1983 by examining PW4
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 Rs2 or Rs3 on 1141983
While he was talking to his wife he saw accused Yadav talking to Sadanand
He over heard Yadav telling Tripathi that his work would be done within an hour or so
Sadanand appeared to be happy on being told so
PW4 has admitted that he has been convicted in three cases of murder and several dacoities
It appears that by then he had some pending cases against him where final reports were later given by the police
His wife who was a material witness has not been examined in the case
413 Obviously as the jail records did not show that PW4 had an interview with his wife that day the story of brib ing the jail officials has been introduced
We are prepared to accept the criticism of counsel for the appellant that if the wife had been called she would not have supported the version that she met her husband PW4 on that day
Adverse inference for not examining the wife has to be drawn against the prosecution
This would thus be the net position
It is true as argued by Mr Jai Narain for the State that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence a clear link has to be established and the chain has to be completed otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence the allegation of conspiracy cannot be accepted
Keeping the nature of the offence in view and the conclusions drawn by the High Court we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence the complicity of Sadanand in the conspiracy to kill the Collector through Yadav
In these circumstances Sadanand has become entitled to the benefit of our doubts and his conviction is not sustainable
His appeal has to be allowed
He is acquitted and is directed to be set at liber ty forthwith
Before we part with the case we must point out that in a case involving the killing of the District Magistrate in his office better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the fight time in ac cordance with law
It is unfortunate that lapses have oc curred
PSS Appeals dis posed of


Summary:
The appellants were alleged to have conspired to kill the Collector cure District Magistrate
The latter died in a bomb attack by the first accused appellant
He was caught red handed and when given a beating by eye witnesses he readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest of the second appellant who was at that material time detained in jail
He made a similar confession before the Magistrate
They were both convicted under s302 read with section 120B of the Indian Penal Code and sentenced to death
Their sentence was confirmed by the High Court
Disposing of the appeals this Court HELD 1
There was direct evidence of first appellant s involvement in the crime and he had also confessed to his guilt
There was therefore no justification to take a view different from what has been said about him by the High Court
His conviction as also sentence shall stand
408F G 21 The prosecution has failed to establish by circum stantial evidence the complicity of the second appellant in the conspiracy to kill the Collector through the first accused
He was therefore entitled to the benefit of doubt and his conviction was not sustainable
413D 406 22 Where the prosecution relies upon circumstantial evidence to support the charge of conspiracy a clear link has to be established and the chain has to be complete otherwise it would indeed be hazardous to accept a part of the link as the complete one
On the basis of such incom plete circumstantial evidence the allegation of conspiracy cannot be accepted
413C 31 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 vs State of Madhya Pradesh  and Hari Chand Kurmi  Anr
vs State of Bihar   referred to 32 The judicial confession of the main accused in the instant case was exculpatory in nature and therefore would not be admissible against the co accused
It has to be kept out of consideration
410A B 33 The extra judicial confession of the main accused relates to the point of time contemporaneous to the inci dent
There was evidence that he was beaten up badly after being apprehended by the mob soon after the bomb burst
Several prosecution witnesses have spoken about his confes sion before them
There was clear material that he was manhandled
410B C 34 In his statement recorded under s164 of the Code on 1341983 the main accused denied to have made any state ment following his apprehension
Even accepting the prosecu tion story that he made this statement he appears to have made the statement following assault on him
Even if it is accepted that he has made the statements as alleged the same cannot be utilised against the co accused
Obviously when the accused was beaten up he must have been anxious to ensure that the assault stopped
His plea in such a situa tion would neither be voluntary nor natural
It would not be proper to rely upon the same for any purpose
410H 411A B 4
The 2nd appellant might have had grudge against the Collector for his detention as also for the demolition of his Ashram
That must have been the common reaction of all the ashramites including the co accused
This could not therefore be a feature to supply motive for establishing conspiracy
412C D 407 51 Several witnesses were examined to show that the main accused was very close to the co accused
But the source of their knowledge appeared to be statement of the main accused and independently they had no personal knowl edge of the fact
412B C 52 PW4 who testified that during his interview with his wife in the same jail he had overheard the alleged conversation between the accused and the 2nd appellant was himself a convict in three cases of murder
His wife who was a material witness has not been examined in the case
Adverse inference has to be drawn against the prosecution for not doing so
413A B 53 This type of evidence even if accepted does not establish conspiracy because the accused being a follower of the 2nd appellant a religious preacher he was likely in the usual course to meet the latter and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy
412F