A co-accused's confession cannot solely result in the conviction of another accused if direct evidence implicating them is absent, justifying suspension of sentence.

Order :

I.A. No. 637 of 2025

1. The instant interlocutory application has been filed on behalf of appellant no. 1, namely, Shiv Sao, under Section 430 of the BNSS , 2023 for suspension of sentence dated 01.10.2024 passed by the learned Sessions Judge, Garhwa in Sessions Trial No. 46 of 2023 arising out of Ranka P.S. Case No. 163 of 2022 corresponding to G.R. No. 1703 of 2022, whereby and whereunder, the appellant has been found convicted for the offence under Sections 302 /34, 201/34 IPC; and sentenced to undergo RI for life under Section 302 /34 IPC with fine of Rs. 50,000/- and in default of fine further directed to undergo RI for one year; and further sentenced for RI years for the offence under Section 201 /34 IPC.

2. It has been contended on behalf of appellant no. 1 that it is a case based upon circumstantial evidence by applying the principle as laid down under Section 27 of the EVIDENCE ACT on the basis of the fact that the recovery of sabbal and other incriminating articles, which were said to be used in commission of crime, has been recovered on the basis of confession made by one Shambhu Prasad Gupta, who is appellant no. 2 herein.

3. It has been contended that no evidence has come so as to implicate the present appellant in the commission of crime if the testimonies of all the witnesses will be taken into consideration particularly the testimony of Investigating Officer, who has also not deposed anything so as to attract the commission of offence said to be committed by the present appellant no. 1.

4. It has been submitted that the recovery of sabal and other incriminating materials are recovered based upon the confession made by said Shambhu Prasad Gupta, who is the son of appellant no. 1, the applicant herein.

5. Argument has been advanced that if recovery has been made on the basis of confession made by co-accused that cannot be utilized for the purpose of convicting the other accused persons.

6. Learned counsel for the appellant based upon the aforesaid ground has submitted that it is a fit case for suspension of sentence.

7. While on the other hand, learned APP appearing for the State has vehemently opposed the prayer for suspension of sentence.

8. It has been contended that if the testimony of all the witnesses will be taken in entirety then it would be evident that the complicity of the present applicant [appellant no. 1] in commission of crime is also there along with the said Shambhu Prasad Gupta [appellant no. 2], and as such submission has been made that it is not a fit case for suspension of sentence.

9. We have heard learned counsel for the parties and gone across the finding recorded by the learned trial Court in the impugned judgment as also the testimony of the witnesses as available in the Lower Court Records.

10. The admitted fact in this case is that the conviction is based upon the circumstantial evidence by applying the principle as laid down under Section 27 of the EVIDENCE ACT on the basis of the fact that the recovery of weapon used in the commission of crime i.e., sabbal and other incriminating articles, which were allegedly used in commission of crime, has been recovered on the basis of confession made by one Shambhu Prasad Gupta, who is appellant no. 2 herein. This fact has not been disputed either by the learned counsel for the appellant no. 1 or by the learned APP appearing for the respondent-State.

11. This Court in order to appreciate the said fact has even gone through the confession made by appellant no. 2, namely, Shambhu Prasad Gupta, which has been marked as Exhibit P-12 and found that in the confessional statement the said Shambhu Prasad Gupta has disclosed about the commission of crim